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Pintro v. Pai

United States District Court, District of Columbia

November 15, 2019

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

         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the Agency violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in three ways: (1) when it rescinded an offer of permanent lateral reassignment; (2) when it permanently transferred her without her consent; and (3) when OGC attorneys interfered with her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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