Re
Document No.: 21
MEMORANDUM OPINION
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
Granting
Defendant's Motion for Summary Judgment
Linda
Pintro is an attorney at the Federal Communications
Commission (“FCC” or “the Agency”)
who has been litigating discrimination claims against the
Agency since 2013. Those claims are still being litigated in
another case elsewhere in the District Court. The claims at
issue in this litigation date from 2015 and 2016. Pintro
alleges that at that time the FCC, and the FCC Office of
General Counsel (“OGC”) in particular, took
adverse actions against her in retaliation for her first
discrimination lawsuit. She says the Agency violated Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., in three ways: (1) when it rescinded an
offer of permanent lateral reassignment; (2) when it
permanently transferred her without her consent; and (3) when
OGC attorneys interfered with her employment and
opportunities for advancement by requiring her supervisors to
monitor her too closely. The FCC has moved for summary
judgment. For the reasons set forth below, the motion is
granted. Pintro has not produced sufficient evidence from
which a reasonable jury could find in her favor on her
retaliation claim.
I.
FACTUAL BACKGROUND
Pintro
has worked for the FCC for many years. From November 2000
through June 2016, her position of record was as a Senior
Legal Advisor in the FCC's International Bureau
(“IB”), Strategic Analysis and Negotiation
Division (“SAND”). Mot. for Summ. J.
(“MSJ”) Ex. B, Pintro Deposition Excerpts at
9-11, ECF No. 20-3 at 67-39; MSJ Ex. A, Pl.'s Responses
to Def.'s First Set of Discovery Requests, Request for
Admission (“RFA”) Nos. 19-20, ECF No. 20-2 at 27.
This was a GS grade 15, step 10 position. RFA No. 26.
Beginning on September 14, 2014, Pintro was detailed from her
position of record in IB, SAND to the Public Safety and
Homeland Security Bureau (“PSHSB”), Cybersecurity
and Communications Reliability Division (“CCR”).
RFA No. 19. Pintro has explained, and the FCC has not
disputed, that details are typically temporary assignments
that do not ordinarily last more than 120 days. Def.'s
Mem. of Points and Authorities in Supp. of MSJ at 4, ECF No.
21 at 6 (citing Compl. ¶ 27.) Pintro remained on detail
to PSHSB, CCR until January of 2016. RFA No. 19. Accordingly,
she needed to obtain formal approval to stay on this detail
every four months for about fifteen months. Pl.'s
Opp'n to MSJ (“Opp'n”) at 3, ECF No. 23.
Pintro
has also been involved in litigation against the FCC for many
years. The retaliation claims at issue in this matter
describe alleged retaliation for an earlier set of
discrimination claims brought by Pintro. These related to how
she was treated in SAND from 2003 to 2008, and a lawsuit
based on these claims was filed in this Court in 2013.
See Pintro v. Genachowski, No. 13-cv-231 (Feb. 22,
2013). In that first case, Pintro alleged that she was
discriminated against based on her race and national origin,
and that she was retaliated against, all in violation of
Title VII. See Order, Pintro, No. 13-cv-231
(Sept. 12, 2019). That litigation is still ongoing as of the
date of this decision. See Id. (denying
Defendant's Motion for Summary Judgment). While the
merits of that litigation have no bearing on this case, the
mediation and settlement discussions that took place in that
case in 2015 and 2016 make up a significant part of the
factual background here.
On June
23, 2015, while Pintro was detailed to PSHSB, CCR, David
Branch-Pintro's counsel in both the 2013 suit and in this
suit-sent a settlement demand to Assistant U.S. Attorney
Wyneva Johnson stating that Pintro would consider a transfer
and other compensation as a means of resolving the 2013 suit.
RFA No. 1. The next day he clarified that Pintro was
specifically interested in a transfer to PSHSB, CCR, where
she had been detailed for most of the past year. RFA No. 2.
He sent a revised settlement demand to AUSA Johnson on
October 16, 2015, now requesting that Pintro be permanently
transferred to PSHSB, CCR as an Assistant Division Chief. RFA
No. 3. The request was shared with Ellen Standiford, an
Attorney Advisor in the FCC OGC, Litigation Division, who
then circulated it to FCC's Chief Human Capital Officer,
Tom Greene and to the relevant persons in IB and CCR. MSJ Ex.
I, Affidavit of Ellen Standiford at 1-2, ECF No. 20-10; MSJ
Ex. G, Dep. of Ellen Standiford at 19-20, ECF No. 20-8. The
Chief of Staff of PSHSB told Standiford that PSHSB was
amenable to having Pintro reassigned, but that CCR had no
open supervisory spots-Pintro would have to be reassigned
“with a title of Special Counsel or Senior
Attorney” and would be in the bargaining unit, not in a
management position. MSJ Ex. I at 2-3. Pintro's possible
switch from management to the bargaining unit required
approval from FCC Labor Relations, and Standiford confirmed
with that office that the Union had no objections.
Id. at 3.
On
November 5, 2015, Judge Walton held a status hearing in the
2013 case. See Nov. 5, 2015, Minute Entry,
Pintro, No. 13-cv-231. Johnson and agency counsel
informed Branch that the FCC would agree to reassign Pintro
to a bargaining unit position in PSHSB, CCR. RFA No. 4. Judge
Walton referred the case to a Magistrate Judge for mediation.
Nov. 6, 2015, Docket Order, Pintro, No. 13-cv-231.
In
December 2015, Pintro's potential reassignment proceeded
along two parallel tracks. Standiford continued communicating
with PSHSB and, on December 18, she received a full position
description for a GS-15 position in CCR with an official
position title of Attorney Advisor and an organizational
title of Senior Legal Counsel. MSJ Ex. I at 3. Around the
same time, Pintro initiated conversations with Admiral David
Simpson, her second-level supervisor at the time (on detail
to PSHSB, CCR), in which she discussed the possibility of her
moving from her detail in PSHSB, CCR to a permanent position
in PSHSB, Policy and Licensing Division. RFA No. 6; MSJ Ex. A
at 5.
On
January 11, 2016, the parties met for a mediation session.
MSJ Ex. I at 3. Pintro was informed that she could have the
PSHSB, CCR, Senior Legal Counsel, bargaining-unit position
that Standiford had been working to set up. Id. at
3-4. Pintro asked that she be reassigned to PSHSB, Policy and
Licensing Division instead. Id. at 4; RFA No. 14.
From Standiford's perspective, this was the first time
this possibility had come up, and the FCC representatives at
the mediation could not agree to it without consulting with
PSHSB first. MSJ Ex. I at 4. Pintro says that this “was
the first time that [she] had the opportunity to communicate
directly with FCC counsel” but “den[ies] that
this was the first time [she] had conveyed [her] desire to go
to Policy and Licensing in PSHSB.” RFA No. 14. She says
she had spoken to Admiral Simpson in December about a lateral
transfer, which would have entailed staying in a
non-bargaining unit position. RFA No. 7. Pintro recalled the
OGC attorneys telling her that they needed time to determine
whether a permanent position in Policy and Licensing would be
possible. MSJ Ex. B, at 60.
January
21, 2016 was Pintro's last day on detail to PSHSB, CCR.
RFA No. 19. Her most recent detail was coming to an end and
there were discussions around this time about where to put
her while arrangements were being made for a permanent
position. See MSJ Ex. B at 57- 60. Beginning on
January 22, 2016, she was detailed to PSHSB, Policy and
Licensing Division. RFA No. 20. Pintro agrees with the FCC
that this detail occurred at her request, and that her grade
and step did not change as a result of the new detail. RFA
Nos. 21, 28.
On
February 10, 2016, Pintro received an email attaching certain
appointment paperwork from Sarah Van Valzah, the Assistant
Bureau Chief in the IB, which was still technically the
bureau to which Pintro was assigned, even though she had not
actually worked there for well over a year. MSJ Ex. L at 3,
ECF No. 20-13; see also MSJ at 12. Pintro responded
to Van Valzah, and to Olga Madruga-Forti, Chief of a division
in the IB, asking why she was being detailed to PSHSB again
instead of being moved there permanently. MSJ Ex. L at 2. She
had been under the impression that Madruga-Forti and Admiral
Simpson had both agreed to a permanent transfer, and added
that “[i]n this state I don't know what objective I
am responsible for meeting, professional development I should
pursue, and therefore, what my performance will be measured
against.” Id. Van Valzah responded, on March
2, explaining that she could not discuss the reassignment
with Pintro because of the ongoing settlement discussions.
Id. at 1 (“[A] reassignment action is
currently a component of a settlement offer in your pending
litigation; accordingly discussions related to the
reassignment should occur between your counsel and the
AUSA.”) Pintro responded that “[m]any, many other
people have gotten reassigned without it having to be part of
a settlement. The only reason why I haven't been
reassigned is because I am suing the agency. I believe that
is the definition of retaliation.” Id.
The
next day, March 3, 2016, Pintro emailed Susan Launer, an
attorney in FCC OGC, informing Launer that she, Pintro, would
be filing a retaliation complaint based on the withholding of
her reassignment. MSJ Ex. M, ECF No. 20-14. Pintro expressed
regret that she felt this was necessary. Id.
Standiford replied the following day on behalf of OGC and
attempted to explain:
We're sorry it appears there has been some
miscommunication. It is our understanding that the question
of a permanent reassignment was first brought up by your
counsel as part of a settlement offer, which is how it became
associated with your pending litigation. The Agency,
including OGC, IB, and PSHSB, has never objected to
discussing or proceeding with a reassignment outside of a
settlement context. At the mediation, however, the parties
agreed that further discussions about reassignment should
occur between Mr. Branch and the AUSA. Because you are a
represented party and the reassignment was part of settlement
negotiations, the AUSA is currently trying to confirm with
Mr. Branch that he has no objections to you and the Agency
directly discussing the issue of reassignment. Again, we are
sorry if you think our office is doing anything to interfere
with your reassignment. We are not.
Id. Standiford later testified that her office was
informed that Pintro did not want to contact Branch or to
have Branch talk to AUSA Johnson about a reassignment. MSJ
Ex. I at 7; see also MSJ Ex. J at 2, Letter from
Wyneva Johnson, Assistant U.S. Attorney, to David Branch
(Mar. 15, 2016), ECF No. 20-11.
OGC
then asked AUSA Johnson to reach out to Branch to ask if he
would find it acceptable for the Agency to speak directly
with Pintro about a reassignment. MSJ Ex. I at 7. OGC also
asked AUSA Johnson to confirm with Branch that he had told
Pintro that a non-management, bargaining unit position in
PSHSB was what was being considered. Id. This second
request was made because Pintro's communications with Van
Valzah, which had been shared with OGC, suggested that Pintro
did not know that the potential PSHSB assignment would be in
the bargaining unit. Id. AUSA Johnson reached out to
Branch, who asked her to send something in writing.
Id.
AUSA
Johnson sent Branch a letter on March 15, 2016, formally
asking whether Branch had any objection to the FCC directly
discussing the possibility of reassignment with Pintro. MSJ
Ex. J at 1. The letter summarized some of the relevant
settlement discussions, including the fact that in January
AUSA Johnson had told Branch that FCC was willing to reassign
Pintro to a bargaining unit, non-management position in
PSHSB, Policy and Licensing, but that a settlement was not
reached at that point because the Agency refused to meet
other demands being made by Pintro. Id. at 2. AUSA
Johnson explained that Pintro had been asking her IB
management why she could not be reassigned, and that she had
indicated her unwillingness to reach out to Branch about the
matter. Id. The letter concluded by posing to Branch
the two questions coming from OGC: Would Branch have any
objection to the Agency discussing reassignment with Pintro
directly? And had Branch communicated to Pintro that a
bargaining unit, non-management position in PSHSB, Policy and
Licensing had been offered? Id. at 2-3.
Another
status conference in the first lawsuit was held on March 18,
2016, at which Branch explained he did not have a problem
with the FCC discussing reassignment with Pintro directly.
MSJ Ex. I at 7-8. Standiford conveyed this to the relevant
persons at the Agency shortly thereafter. Id. at 8.
Standiford testified that “OGC had no further
involvement with Ms. Pintro's reassignment.”
Id.
While
the attorneys were having these communications, on March 8,
2016, Pintro contacted an Equal Employment Opportunity
(“EEO”) counselor alleging, for the first time,
that the OGC attorneys Standiford and Launer had retaliated
against her in connection with her reassignment. MSJ Ex. N,
Initial Contact and/or Counseling Session Form, ECF No.
20-15; RFA No. 40. On April 14, she received a Notice of
Final Interview with EEO Counselor. MSJ Ex. O, ECF No. 20-16.
This document informed her that she was entitled to file a
formal complaint but that she had to do so within the next
fifteen days for it to be timely. Id.; RFA No. 43.
Pintro acknowledges that she did not file a formal EEO
complaint within this timeframe. RFA No. 44.
Pintro
remained on detail to the Policy and Licensing Division until
June 26, 2016 when she was reassigned to that same office.
MSJ Ex. B at 132; see also MSJ Ex. C, Notification
of Personnel Action, ECF No. 20-4. The position was at GS
grade 15, step 10, and had the same salary as her previous
position in IB. MSJ Ex. C at 2; MSJ Ex. B at 132-33. Pintro
testified that the position description for this new role
matched the position description that Admiral Simpson had
given her in January 2016 when they were discussing a
possible permanent reassignment to PSHSB, Policy and
Licensing. MSJ Ex. B at 39; 133-34.
On
August 25, 2016, Pintro was deposed in connection with her
first lawsuit. RFA No. 39. Standiford testified that she had
tried to contact Pintro's supervisor, Zenji Nakazawa,
prior to the deposition but that she only managed to reach
Michael Wilhelm, another supervisor in the Policy and
Licensing Division. MSJ Ex. G at 61-62. Standiford explained
that she was contacting these supervisors “to ensure
that [Ms. Pintro] was not being required to use her own leave
to attend the deposition.” Id. at 62. On the
afternoon before the deposition Nakazawa sent Pintro an email
saying, “I am out of the office . . . but I did get
notice that the AUSA wanted to depo you tomorrow and asked if
I you were not teleworking then, just fyi.” MSJ Ex. P,
ECF No. 20-17. Standiford testified that she had not
mentioned that Pintro should say she was teleworking,
specifically, but only that Pintro should not have to use her
own leave hours in order to attend the deposition. MSJ Ex. G
at 62. Pintro did submit a request for 8 hours of annual
leave for the day of the deposition. RFA No. 39. She never
cancelled this request and says that the agency did not give
her back the hours. RFA No. 37.
In the
fall of 2016, Pintro filed two formal EEO Complaints. MSJ Ex.
Q (“September 15 Complaint”), ECF No. 20-18; MSJ
Ex. R (“October 24 Complaint”), ECF No. 20-19.
Pintro met with an EEO counselor on September 1 and was
provided a Notice of Right to File an official complaint on
September 14. MSJ Ex. S at 2, ECF No. 20-20. The first formal
complaint, filed on September 15, 2016, alleged that OGC,
specifically Standiford, retaliated against her “when[,
] having failed to prevent [her] transfer from IB to PHSHB,
OGC notified [her PSHSB supervisors] that the Department of
Justice wanted to take [her] deposition on 8/25/2016, and
inquired whether [she] had indicated that [she] would be
teleworking on that day.” September 15 Complaint at 3.
She said this call “was a deliberate effort to punish
[her] for getting the transfer on [her] own, ” and
characterized it as “unlawful workplace
surveillance.” Id. at 3-4. Pintro acknowledges
that this was her first formal EEO Complaint relating to the
retaliation at issue in the Complaint. RFA No. 45. Pintro
again met with an EEO counselor on October 4 for another
initial interview, and, on October 11, she was again notified
of her right to file a formal complaint. MSJ Ex. S at 2. Her
second EEO Complaint was filed on October 24, and alleged
that she was retaliated against based on her “June 2016
demotion from Senior Legal Advisor to Attorney
Advisor.” October 24 Complaint at 3. It alleged that
the decision to give her “the title of Attorney
Advisor[] deliberately ignores the greater responsibilities
of [her] position description, and [her] designation as a
management official pursuant to 5 USC 7103 (a)(11).”
Id. at 3-4; see also 5 U.S.C. §
7103(a)(11) (“‘[M]anagement official' means
an individual employed by an agency in a position the duties
and responsibilities of which require or authorize the
individual to formulate, determine, or influence the policies
of the agency . . . .”).
In July
of 2017, the FCC issued a Final Agency Decision dismissing
the EEO Complaints and informing Pintro of her rights to file
a civil suit in federal district court. MSJ Ex. S. On October
10, 2017, Pintro filed her Complaint in this case, which
alleges retaliation in violation of Title VII of the Civil
Rights Act of 1964. Compl., ECF No. 1. Specifically, Pintro
alleges that the Agency retaliated against her, in response
to her allegations of discrimination in her first lawsuit, at
three points, when it (1) “rescinded an offer of a
permanent lateral reassignment to [PSHSB] as a Senior Legal
Advisor[;]” and (2) “permanently transferred
Plaintiff Pintro, without her consent, to PSHSB as an
Attorney Advisor;” and when (3) “the Agency's
Office of General Counsel interfered with Plaintiff
Pintro's employment opportunities and impugned her
reputation when it required one of Plaintiff Pintro's
managers to report on her performance every two months; and
contacted [Nakazawa], ” about whether Pintro had said
she would be teleworking on the day of her deposition in her
earlier lawsuit. Compl. at 8-9. The Complaint stated that
because of these actions, “Plaintiff Pintro's
professional progression has been stymied and any opportunity
for advancement at the Agency has been lost.”
Id. at 9.
After
discovery, the FCC moved for summary judgment. MSJ, ECF No.
21. That motion is now ripe for decision.
II.
LEGAL STANDARD
A.
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