United States District Court, District of Columbia
VIRNA L. SANTOS, Plaintiff,
v.
WILLIAM P. BARR, Defendant.
MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Virna
L. Santos is an attorney who served at the Department of
Justice, in California, in Bogotá, Colombia, and at
Main Justice in Washington, D.C., until September 30, 2014.
In this lawsuit, Ms. Santos alleges that she was retaliated
against, harassed, and dismissed because she engaged in
protected activity and not because there was a lack of
funding for her position. The Department of Justice denies
any discrimination. It states that Ms. Santos held positions
which were limited-term appointments subject to funding and
the Department reluctantly terminated her when funding for
her most recent position could not be obtained. Based on
legitimate nondiscriminatory reasons for its actions, the
Department moves for summary judgment.
I.
FACTS
Virna
L. Santos left her position as an Assistant United States
Attorney in the Eastern District of California in 2007, on a
detail to the Department of Justice's (DOJ) Criminal
Division, Office of Overseas Prosecutorial Development,
Assistance and Training (OPDAT), as a Resident Legal Advisor
in Bogotá, Colombia. See Def.'s Statement of
Undisputed Material Facts (Def.'s SOF) [Dkt 19] ¶
1.[1],
[2] OPDAT is
a section within DOJ's Criminal Division that works to
“develop and administer technical assistance designed
to enhance the capabilities of foreign justice sector
institutions” so that they can work effectively with
DOJ to combat terrorism, human trafficking, organized crime,
corruption and financial crimes. Def.'s Mem. in Supp. of
Mot. for Summ. J. (Def.'s Mem.) [Dkt. 19] at 2 (citing
U.S. DOJ, OPDAT, https://www.justice.gov/criminal-opdat). As
of September 26, 2010, Ms. Santos transferred to Main Justice
in Washington, D.C. to serve as OPDAT's Regional Director
for Latin America and the Caribbean (LAC). Ms. Santos'
appointment had a “not-to-exceed” date of
September 25, 2012, because it was a “two year term
appointment.” Def.'s SOF ¶ 1.
Funding
for OPDAT programs relies heavily on Interagency Agreements
between the Department of State and DOJ, although funds may
come from other sources as well; available monies can vary
greatly from year to year. Id. ¶ 2. Ms. Santos
says that she disputes this fact, stating “[w]hile it
is true that OPDAT relies on interagency funds, there was no
shortage of funds in 2014.” Pl.'s Statement of
Genuine Issues in Supp. of Her Opp'n to Mot. for Summ. J.
(Pl.'s SOF) [Dkt. 22] at 2. Her dispute merely adds an
argument, citing to her own declaration, but does not
actually dispute Defendant's fact, which is therefore
undisputed.
On
March 13, 2011, Ms. Santos was appointed to a second
time-limited appointment, to expire on March 12, 2013. It was
described as “Dependant [sic] on Continued Availability
of Funds.” Def.'s SOF ¶ 3 (correction in
original). Again, Ms. Santos says she disputes this fact, but
only adds argument, again citing to her own declaration, that
“[t]he ‘not to exceed' dates were the subject
of routine exceptions, and no OPDAT headquarters personnel or
Regional Director other than Ms. Santos ever was refused the
renewal of a term for financial reasons.” Pl.'s SOF
at 2. The fact that Ms. Santos's second appointment at
Main Justice was also time-limited between 2011 and 2013 is
therefore undisputed.
It is
also undisputed that on July 11, 2012, Ms. Santos forwarded
an email from Jeanette Mercado-Rios, a Resident Legal Advisor
(RLA) in Mexico City, Mexico, to Carl Alexandre, OPDAT
Director. The subject line of the email was
“Disrespectful Working Environment.” Def.'s
SOF ¶ 4; Def.'s Ex. 6 [Dkt. 19-1] at
43-44.[3] It is further undisputed that on July 12,
2012, Ms. Santos sent an email summarizing a discussion she
had had with Rene Holmes, another RLA in Mexico City, which
Ms. Santos characterized as a report of a “hostile work
environment.” Def.'s SOF ¶ 4; Def.'s Ex. 7
[Dkt. 19-1] at 46. None of the emails in Defendant's
Exhibits 6 or 7 states that gender discrimination was a
factor in either woman's hostile work environment claims;
in fact, Ms. Holmes complained of maltreatment by both her
male supervisor and a female coworker. However, Ms. Santos
adds that she herself “reported that gender
discrimination was an issue with respect to all three Mexico
Resident Legal [Advisors] who complained about [Senior RLA
Kevin] Sundwall.” Pl.'s SOF at 3. She cites her own
declaration and that of Laurel Glenn, an Administrative
Officer who “serv[ed] as a liaison between OPDAT
management, i.e., Mr. Alexandre and Ms. Ehrenstamm, and other
OPDAT staff.” Decl. of Laurel Glenn (Glenn Decl.) [Dkt.
20] ¶ 3. Ms. Santos reports that the RLA complaints
“were presented as gender discrimination issues”
when she met with OPDAT Director Carl Alexandre and Deputy
Director Faye Ehrenstamm. Decl. of Verna Santos (Santos
Decl.) [Dkt. 20] ¶ 4. Ms. Glenn states that she was
aware of the complaints referenced by Ms. Santos and declares
that “[r]egardless of what was committed to writing
regarding Ms. Mercado-Rios' complaint, it was considered
to be and treated within OPDAT's main office as a
complaint alleging, among other things, a gender-based
hostile environment.” Glenn Decl. ¶ 6. Deputy
Director Ehrenstamm stated in an Affidavit by Interrogatory
that she “ha[d] no recollection Ms. Santos expressing
concerns that Kevin Sundwall sexually discriminated and/or
harassed some of [Ms. Santos's] female
subordinates” and that email communications with Ms.
Santos discussed a possible hostile work environment, but
contained “no mention of sexual discrimination.”
Def.'s Ex. 2 [Dkt. 24-1] at 6. It is, therefore, disputed
whether gender discrimination was mentioned as part of any
complaint of a hostile work environment.
On
August 6, 2012, Renee Caputo, OPDAT's Director for Human
Capital, sent an email to Tiffani Williams, an Employee
Relations Specialist on her staff, directing Ms. Williams to
talk to RLAs Mercado-Rios and Holmes regarding
“treatment by their supervisor, ” Mr. Sundwall.
Def.'s SOF ¶ 5. Ms. Santos insists that this fact is
disputed but only adds that “Human Capital routinely
investigates . . . whether there has been conduct that could
violate Title VII” of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. Pl.'s SOF at 3.
Numerous
emails were exchanged among Mses. Santos, Mercadeo-Rios, and
Holmes and the Human Capitol staff, and Mses. Mercadeo-Rios
and Holmes were interviewed by that staff. Def.'s SOF
¶ 6. Defendants submit numerous emails and other
documents as exhibits and none refers to gender as the basis
for Mr. Sundwall's conduct. Def.'s Ex. 9 [Dkt. 19-1]
at 50-162 (various documents and email
correspondence).[4] While Ms. Santos again asserts that this
fact is disputed, she essentially admits the limitations of
the emails-“[r]egardless of what was committed to
writing”-but argues that “the nature of the
complaints” was well known and gender discrimination
issues “were discussed during meetings regarding these
complaints among OPDAT management, at least the ones attended
by Virna Santos.” Pl.'s SOF at 4. Thus, despite the
relative clarity of the written documents and email
communications, most of which do not allege gender
discrimination, Ms. Santos repeatedly asserts that gender
discrimination was raised and discussed during
meetings.[5]
Ms.
Caputo recommended that senior management talk with Mr.
Sundwall about the personnel issues in his office in Mexico
City and, on August 29, 2012, Deputy Assistant Attorney
General (DAAG) Bruce Swartz and Counselor to the Assistant
Attorney General Bruce Ohr met with Mr. Sundwall and
counseled him regarding the concerns of his subordinates. See
Def.'s SOF ¶¶ 7-8; Pl.'s SOF at 4.
Ms.
Santos met with Director Alexandre and Deputy Director
Ehrenstamm in February 2013 for her mid-year performance
review. At that time, Director Alexandre told her that
“he intended to post a vacancy announcement for the
Regional Director for LAC, but that she would continue to
have a role at OPDAT.” Def.'s SOF ¶ 9; see
also Santos Decl. ¶ 10 (noting that her position
“was going to be re-listed, and that [she] could
reapply for [her] same position”).
Director
Alexandre left OPDAT in February 2013 and Ms. Ehrenstamm
became Acting Director until she was selected to serve as the
new Director in September 2013. Def.'s SOF ¶ 10.
“Following Alexandre's departure, [Ms. Santos]
remained in her position as Regional Director” for LAC.
Id. Ms. Santos indicates that she disputes this fact
but, more accurately, she adds allegations that her
“working conditions changed dramatically at the end of
2012, after she reported the gender discrimination
complaints.” Pl.'s SOF at 5. In this regard, she
complains that she was “only provisionally the Regional
Director of LAC, and OPDAT was recruiting her replacement,
” Id. at 6, and that she was
“capriciously scrutinized, investigated, bypassed, and
unfairly evaluated.” Id.
Ms.
Santos' term appointment as Regional Director for LAC,
expired on March 12, 2013, but was extended for two
three-month periods-until June 13, 2013, and then until
September 30, 2013. Def.'s SOF ¶¶ 11-12. Ms.
Santos' term was then further extended for one year,
until September 30, 2014. Id. ¶
16.[6]
On July
26, 2013, Ms. Santos reported to Christopher Lehmann, her
first-line supervisor, and Acting Director Ehrenstamm that
Paul Vaky, an OPDAT attorney assigned to Bogotá, had
touched her lower back in a way she thought improper.
Def.'s SOF ¶ 13 (Mr. Vaky “had placed his hand
on her lower back during a courtroom proceeding when she
leaned over to speak with him while he was seated.”).
Ms. Santos disputes only the description, saying that she
“reported that the touching was inappropriate and of a
sexual nature, and that Mr. Vaky's hand was at the very
lowest part of her back where she felt his fingers on her
buttocks.” Pl.'s SOF at 6.
Acting
Director Ehrenstamm and Director of Human Capital Caputo met
with Ms. Santos almost immediately after her complaint, on
July 31, 2013, to discuss the touching incident. Def.'s
SOF ¶ 14; Pl.'s SOF at 6-7. The Acting Director and
Ms. Caputo also met with Mr. Vaky and counseled him on the
incident during the week of August 19, 2013. Def.'s SOF
¶ 15; Pl.'s SOF at 7.
In
early November 2013, Ms. Santos met with Director Ehrenstamm
and Mr. Lehman to discuss her annual performance appraisal.
Def.'s SOF ¶ 17. Afterwards, Ms. Santos sent an
email to both of them objecting to the last portion of the
appraisal concerning financial issues with OPDAT operations
in Colombia, which she attributed to Mr. Vaky. That portion
of her appraisal was removed and is not in the final, signed
appraisal. Id. Ms. Santos does not dispute these
facts but adds that the appraisal was not changed for five
months and that DAAG Swartz was provided a draft of the
unrevised appraisal. Pl.'s SOF at 8.
In
December 2013, Ms. Santos was transferred from Regional
Director for LAC to a newly-created position of Regional
Director of Judicial Studies Institute (JSI). Def.'s SOF
¶ 18. Defendant explains:
Prior to [this] assignment, JSI had fallen under the
responsibility of [Ms. Santos] in her role as Regional
Director for LAC. The November 4, 2013, memorandum [which
had] request[ed] approval of the reassignment indicated that
costs for the position would be paid out of OPDAT overhead
funds for the first year, but that future funding was
anticipated from funds to be made available from the
Department of State, Bureau of International Narcotics and
Law Enforcement Affairs (“INL”).
Id.; see also Def.'s Ex. 21, Nov. 4, 2013
Memorandum re Request for Reassignment of Virna L. Santos
[Dkt. 19-3].[7]
Ms.
Santos suffered no change to her grade, pay, or
organizational status by the move from one Regional Director
position to another. Def.'s SOF ¶ 20 (explaining
“both were GS-15, step 10, Regional Director positions
reporting to the Principal Deputy Director and Director of
OPDAT”).
The
Interagency Agreement between the Department of State, Bureau
of International Narcotics and Law Enforcement Affairs (INL),
and DOJ (OPDAT) for the period March 31, 2014 to December 31,
2014 (a funding period that started after Ms. Santos's
reassignment to Regional Director of JSI) contained no monies
“to pay for headquarters personnel to support the JSI
program.” Def.'s SOF ¶ 21 (emphasis added).
The March 31-December 31, 2014 Interagency Agreement
expressly required OPDAT to “use existing personnel to
plan, manage and facilitate the courses” and directed
that “OPDAT may not use INL funds from this
[Interagency Agreement] to hire new personnel.”
Id. (emphasis added); see also Def.'s Ex. 26,
Interagency Agreement (IAA) [Dkt. 19-3] at 63; Def.'s Ex.
34, Budget Breakdown for IAA [Dkt. 19-3] at 120. Ms. Santos
asserts that she disputes this fact, the documentation
notwithstanding, but actually argues that “OPDAT
dragged its feet in getting a new budget” from INL for
fiscal year 2014 and “[n]o one had lost their position
due to funding and there were funds available.”
Pl.'s SOF at 9. Notably, Ms. Santos does not dispute the
terms of the March 31-December 31, 2014 Interagency Agreement
or its underlying Budget Breakdown, which are therefore
uncontested.
On June
9, 2014, Ms. Santos asked whether her appointment, scheduled
to end on September 30, 2014, the end of the federal Fiscal
Year 2014, would be renewed. See Def.'s SOF ¶ 22;
Pl.'s SOF at 9. Director Ehrenstamm told Ms. Santos by
email on June 11, 2014, that “due to the lack of
‘any programmatic money' to support the JSI
[leadership] position” as a Regional Director after
September 30, 2014, “her appointment would not be
extended.” Def.'s SOF ¶ 23. Ms. Santos
...