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Pintro v. Pai

United States District Court, District of Columbia

September 12, 2019

LINDA PINTRO, Plaintiff,
v.
AJIT PAI, Chairman of the Federal Communications Commission, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE.

         The plaintiff, an African-American female of Haitian descent, brings this civil action against the defendant, Ajit Pai, in his official capacity as the Chairman of the Federal Communications Commission (“FCC”), for alleged discrimination based on race and national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e-2 to -17 (2012). See Complaint (“Compl.”) ¶¶ 4, 30. Currently pending before the Court is the Defendant's Motion for Summary Judgment (“Def.'s Mot.”). Upon careful consideration of the parties' submissions, [1] the Court concludes for the following reasons that it must deny the defendant's motion for summary judgment.

         I. BACKGROUND

         A. Factual Background

         The plaintiff is an African-American attorney of Haitian descent who has been an FCC employee since 1996. See Pl.'s Resp., Exhibit (“Ex.”) A (Transcript of EEOC Proceedings on May 11, 2012) 57:14-16. During the time period relevant to this litigation, the plaintiff was a Senior Legal Advisor in the Strategic Analysis and Negotiations Division (the “Division”) of the FCC's International Bureau. See id., Ex. A (Transcript of EEOC Proceedings on May 11, 2012) 57:4-9; 57:18-21. From approximately 2003 to 2009, she was supervised by the Chief of the Division, Kathryn O'Brien, a Caucasian female. See Def.'s Facts ¶ 3; Pl.'s Resp., Ex. A (Transcript of EEOC Proceedings on May 11, 2012) 58:8-13; 73:16-21.

         In early 2008, one of O'Brien's two Deputy Division Chief positions became vacant. See Pl.'s Resp., Ex. A (Transcript of EEOC Proceedings on May 11, 2012) 182:8-12. O'Brien did not consider the plaintiff for the position, see id., Ex. A (Transcript of EEOC Proceedings on May 11, 2012) 193:17-194:7, but instead asked Robert Tanner, a white male who was an attorney-advisor for the Division, to serve as an Acting Deputy Division Chief on an interim basis, see Def.'s Facts ¶ 7; Pl.'s Resp., Ex. A (Transcript of EEOC Proceedings on May 11, 2012) 189:8-22; id., Ex. A (Transcript of EEOC Proceedings on May 17, 2012) 530:25-531:7.

         The plaintiff subsequently commenced this litigation, alleging that the defendant discriminated against her based on her race and national origin, and retaliated against her after she filed a complaint of discrimination with the Equal Employment Opportunity Commission. See Compl. ¶¶ 22-24.

         B. Procedural Background

         On May 24, 2013, the defendant filed a motion to dismiss this case, arguing that the plaintiff failed to timely exhaust her administrative remedies as to her claims. See Motion to Dismiss at 1. Because the defendant, in his motion, relied on matters outside of the pleadings, see Memorandum in Support of Motion to Dismiss at 9-10, the Court converted the defendant's motion to dismiss into one for summary judgment, see Pintro v. Wheeler (Pintro I), 35 F.Supp.3d 47, 51-52 (D.D.C. 2014), and entered summary judgment in favor of the defendant with respect to all of the plaintiff's claims, with the exception of the plaintiff's race and national origin discrimination claims that were based on the plaintiff's 2008 non-selection for the Acting Deputy Division Chief position that was awarded to Robert Tanner, see id. at 56. The Court concluded that the defendant was “not entitled to summary judgment on the plaintiff's non-selection for the Acting Deputy Division Chief position” based on his argument that the plaintiff untimely challenged her non-selection because “a genuine factual dispute exist[ed] regarding the timing of Tanner's designation as Acting Deputy Division Chief and therefore the plaintiff's knowledge of when Tanner's designation occurred.” Id. at 53.

         After the parties' attempt to mediate this case was unsuccessful, see Min. Order (Jan. 19, 2016), and after discovery closed on September 16, 2016, see Order at 1 (Mar. 18, 2016), ECF No. 29, the defendant filed his second motion for summary judgment, see generally Defendant's Motion for Summary Judgment, which the Court denied in Pinto v. Pai (Pintro II), 273 F.Supp.3d 264, 274 (D.D.C. 2017). In Pintro II, the Court found that “a reasonable jury could conclude that the [defendant's] explanations for not selecting the plaintiff for the Acting Deputy Division Chief position were pretextual and infer that the real reason for the plaintiff's non-selection was discrimination.” Pintro II, 273 F.Supp.3d at 274.

         Once again, the Court referred this case for mediation at the parties' request, see Minute Order (Aug. 21, 2017), and after further negotiations between the parties were again unsuccessful, see Joint Status Report at 1 (Jan. 24, 2018), the parties “request[ed] that the Court schedule a pretrial conference . . . and [ ] a trial date, ” id. On May 24, 2018, the parties appeared before the Court for the pretrial conference, see Minute Entry (May 24, 2018), during which the defendant for the first time raised the argument that the plaintiff's non-selection for the Acting Deputy Division Chief position was not an adverse action. In response to the defendant's arguments, the Court concluded that “whether the plaintiff suffered an adverse action is a question of fact reserved for the jury, ” Order at 1 (May 24, 2018), ECF No. 62 (citing Niskey v. Kelly, 859 F.3d 1, 8 (D.C. Cir. 2017)), and rescheduled the continuation of the pretrial conference to a later date, see id. at 3. At the rescheduled pretrial conference on June 14, 2018, the Court affirmed its ruling that “whether the plaintiff suffered an adverse action is a question of fact reserved for the jury, ” Order at 1 (June 14, 2018), ECF No. 69, but reopened discovery regarding the selection process for the 2010 Deputy Division Chief position, see id. at 2.

         On February 13, 2019, the defendant requested leave to file another motion for summary judgment, see Defendant's Motion for Leave to File Motion for Summary Judgment at 1, asserting that the “newly gleaned discovery has direct bearing on the issue [of] whether [the] [p]laintiff suffered an adverse action, ” and that the defendant “had not addressed th[at] issue in” his previous motions because he “did not have an evidentiary record dispositive of th[e] issue, ” id. at 2. On April 9, 2019, the Court granted the defendant's motion for leave to file another motion for summary judgment, see Order at 1 (Apr. 9, 2019), ECF No. 100, and the motion was filed on the docket thereafter, see generally Def.'s Mot. The defendant's third motion for summary judgment is the subject of this Memorandum Opinion.

         II. STANDARD OF REVIEW

         A court can grant a Rule 56 motion for summary judgment only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing law,' and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Id. The movant has the burden of demonstrating the absence of a genuine issue of ...


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