Santos v. Barr

          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 ...