Hinds v. Cordray ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANICE HINDS,
Plaintiff,
v.
Case No. 1:17-cv-00023 (TNM)
JOHN MICHAEL MULVANEY, Acting
Director, Consumer Fraud Protection Bureau
Defendant.
MEMORANDUM OPINION
Plaintiff Janice Hinds, who is proceeding pro se, alleges that her employer, the Consumer
Financial Protection Bureau,1 discriminated against her on the basis of race and sex on seven
occasions and retaliated against her for opposing Title VII violations on 14 occasions. Her
complaint seeks $20 million in punitive damages, $300,000 in compensatory damages, $300,000
in interest, a pay raise, and any reasonable attorneys’ fees and costs. Her case comes before me
on the Defendant’s motion to dismiss in part and for summary judgment. Because there is no
genuine dispute of material fact and the Defendant is entitled to summary judgment, the
Defendant’s motion will be granted.
I. BACKGROUND
According to the complaint, Ms. Hinds an African-American woman who was initially
hired by the Federal Government on June 19, 1992 at the GS-7 level. Compl. ¶ 10. Ms. Hinds
1
Ms. Hinds’ complaint named Richard Cordray as the Defendant, in his official capacity as
Director of the Consumer Financial Protection Bureau (“CFPB”). Mr. Cordray’s successor, John
Michael Mulvaney, has been automatically substituted as the Defendant by operation of Federal
Rule of Civil Procedure 25(d).
alleges that, in the 21 years between that time and the time that she began her current job as an
examiner for the CFPB, she worked at a number of federal agencies, where she received
numerous promotions and was never reprimanded. Id. ¶¶ 10-11. During her time at the CFPB,
Ms. Hinds alleges, she has been denied promotion, reprimanded, and otherwise subjected to race
and sex discrimination in violation of Title VII. Id. ¶¶ 17-25. Ms. Hinds also alleges that she
has been repeatedly subjected to retaliation for opposing Title VII violations. Id. ¶¶ 26-40. Each
allegation will be discussed below, in connection with its merits.
However, one allegation may be worth mentioning at the outset, given that Ms. Hinds has
emphasized it in at least nine subsequent filings and because it provides some context for the
allegations that follow. Ms. Hinds claims that her then-manager, Marsha Vaughn,
“inappropriately distributed a violent image to the Plaintiff and other employees who reported to
her.” Compl. ¶ 36. Ms. Hinds’ filings repeatedly refer to this “[e]mail containing a
horrifically violent image depicting the overkill [of] a snowman that was slaughtered by
five machetes that the Plaintiff’s former manager, Marsha Vaughn, sent to her and all of the
employees who report to her.”2 According to the complaint, the fact that Ms. Vaughn sent this
2
See, e.g., Pl.’s Mot. Determine Whether Certain Witnesses Provided False and Misleading
Statements Under Penalties of Perjury Ex. A (emphasis in original); Pl.’s Mot. Declare that the
ROI Violates 29 CFR 1614 108(b) and Initiate a DOJ Referral Ex. A (same); Pl.’s Motion to
Address False Information and Potential Evidence Tampering Ex. A (same); Pl.’s Reply ISO
Mot. Notify Court of Significant Evidence Ex. C (same); Pl.’s Reply ISO Mots. Ex. D (without
emphasis); see also Correction to Pl.’s Opp. to Def.’s Mot. Summary Judgment Ex. A
(“Horrifically violent email that the Plaintiff’s manager sent to her and all of the employees who
report to her.”); Reply ISO Pl.’s Mot. Obtain Procedures for the Submission of Documents
Secured Under a Protective Order Ex. A (same); Pl.’s Mot. Reconsideration for a Court-
Appointed Attorney Ex. C (“Ture [sic] copy of a horrifically violent email that the Plaintiff’s
manager resent to all of the employees who reported to her. The Plaintiff submitted this true
copy of the email to the EEO Investigator as evidence to substantiate that Ms. Vaughn subjected
her to actions that were in violation of Title VII.”); Pl.’s Reply ISO Mot. Reconsideration for a
Court-Appointed Attorney Ex. D (“True copy of an email that the Plaintiff submitted to the EEO
Investigator. The email contained a horrifically violent image depicting a snowman being
2
email supports Ms. Hinds’ view that the CFPB was retaliating against her by assigning her to
work under Ms. Vaughn. Id. The record reflects that, on February 3, 2015, someone sent an
email titled “winter” to several people, including Ms. Hinds and Ms. Vaughn. Id. The email
asks, “Joe—is this your thoughts?” and contains the following image:
Id.3 Ms. Vaughn’s reply to the group states, “I love this!!” Id. Although the interpretation of
Ms. Vaughn’s reply email could perhaps be subjective, Ms. Hinds appears to see the specter of
the slaughtered snowman as a particularly pointed and chilling example of her mistreatment.
slaughtered by vive [sic] machetes that the Plaintiff’s manager sent to all of the employees who
reported to her. The email was initiated by a White employee and Ms. Vaughn glorified it by
stating in the email ‘I love this!!’.”).
3
Although I would not typically include pictures in the staid pages of the Federal Supplement,
Ms. Hinds previously accused an EEO investigator of malfeasance for failing to include this
image in her report on Ms. Hinds’ complaints. See, e.g., Pl.’s Opp. to Def.’s Mot. Summary
Judgment at 7-8 (alleging that investigator’s omission of the slaughtered snowman’s image
demonstrated bias and was “an obvious attempt to help the CFPB fight against the Plaintiff’s
claims”). I do not wish to be accused of a similar omission.
3
Ms. Hinds initially contacted the CFPB’s Equal Employment Opportunity (“EEO”)
Office in September 2013, but she did not have sufficient evidence to lodge a formal complaint
at that time. Id. ¶ 14. On March 28, 2014, Ms. Hinds again contacted the EEO Office, and on
May 15, 2014, she filed her formal EEO complaint. Id. Ex. A at 1. The CFPB’s Office of Civil
Rights investigated Ms. Hinds’ complaint, which it permitted her to amend four times during the
course of the investigation. Id. On November 9, 2016, an initial adjudicator issued a decision
granting the Defendant’s motion for summary judgment on several grounds, including that there
was no evidence of discriminatory or retaliatory intent, that there was no evidence linking the
alleged harassment to Ms. Hinds’ race or sex, and that the preponderance of the evidence did not
show that the Defendant’s legitimate, non-discriminatory reasons for the allegedly retaliatory
actions were pretextual. Id. at 4-5. The decision noted that “most of Ms. Hinds’ claims were
petty disputes about agency policy or objection[s] to minor and rote activities taken by the
agency” and that Ms. Hinds appeared to have read a report related to the CFPB’s diversity and to
have “conclude[d] that she was a victim of discrimination before she reported to work on her
first day.” Id.4 The CFPB adopted the decision’s findings and analysis in a final agency order
on November 18, 2016. Id. at 6.
4
In addition to citing this report, Ms. Hinds seeks to bolster her claims of discrimination and
retaliation by noting that the Financial Services Committee of the United States House of
Representatives has conducted hearings to investigate allegations of Title VII violations by the
CFPB. Pl.’s Opp. to Def.’s Mot. Summary Judgment at 29. She also cites an affidavit by a male
CFPB employee who, at the time of the affidavit, had filed a grievance against one of Ms. Hinds’
former managers and was planning to leave the CFPB mainly because of his frustrations with
that manager. Id. at 28; id. Ex. J at 2449. This employee complained about the manager’s
general management style, lack of qualifications, and political maneuverings. Id. at 2449-50.
He also stated that he had not personally observed the manager’s treatment of Ms. Hinds. Id. at
2450. However, when he was directly asked whether he had reason to believe Ms. Hinds’
former manager had subjected her to discrimination, he stated that the manager “has a problem
with women generally.” Id. at 2451. The same employee had previously noted that he was
4
After receiving the CFPB’s final order, Ms. Hinds filed a timely complaint in this court.
The Defendant filed a motion to dismiss in part and for summary judgment on April 4, 2017.
The motion is now ripe, and I conclude that it should be granted for the reasons explained below.
II. LEGAL STANDARD
To prevail on a motion for summary judgment, a movant must show that “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is material if it could alter
the outcome of the suit under the substantive governing law. Anderson, 477 U.S. at 248. 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.” Id. “[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Once this showing has been
made, the non-moving party bears the burden of setting forth “specific facts showing that there is
a genuine issue for trial.” Anderson, 477 U.S. at 250. Although the Court applies “less stringent
standards” to pro se filings than to filings drafted by lawyers, a pro se plaintiff’s opposition to a
motion for summary judgment “must consist of more than mere unsupported allegations and
must be supported by affidavits or other competent evidence setting forth specific facts showing
aware of two men and two women who had experienced problems with Ms. Hinds’ former
manager. Id. at 2449.
5
that there is a genuine issue for trial.” Prunte v. Universal Music Grp., Inc., 699 F. Supp. 2d 15,
21-22 (D.D.C. 2010).
III. ANALYSIS
A. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds’
Unexhausted Discrimination and Retaliation Claims
A federal employee may only assert a Title VII claim in federal court after presenting a
timely complaint to the agency involved and exhausting available administrative remedies.
Nurriddin v. Goldin, 382 F. Supp. 2d 79, 92 (D.D.C. 2005) (citing Brown v. Gen. Servs. Admin.,
425 U.S. 820, 832 (1976)); see also 42 U.S.C. § 2000e-16(c). To present a timely claim to an
agency, a Title VII claimant generally must “initiate contact with a[n EEO] Counselor within 45
days” of the conduct of which she complains and, if counseling does not resolve her concerns,
file a formal administrative complaint within 15 days after the counseling period ends. 29 C.F.R.
§ 1614.105(a)(1), (d).5 Only if she has followed these steps without obtaining satisfactory relief
may a federal employee bring a Title VII claim in federal court. Bowie v. Ashcroft, 283 F. Supp.
2d 25, 33 (D.D.C. 2003). If a federal employee alleges multiple Title VII violations, each claim
must be administratively exhausted, including claims that arise after the filing of an initial
administrative complaint, with a possible exception for retaliation claims that “are related to the
claims in the initial administrative complaint and were specified in that complaint to be of an
ongoing and continuous nature.” See Thomas v. Vilsack, 718 F. Supp. 2d 106, 121 (D.D.C.
2010) (applying this exception while noting that the D.C. Circuit has not addressed the issue and
some D.C. District Court opinions have not recognized an exception).
5
The counseling period is generally 30 days, but may be extended an additional 60 days under
certain circumstances. See 29 C.F.R. § 1614.105(e).
6
Ms. Hinds initiated contact with an EEO Counselor on March 28, 2014. Compl. Ex. A at
1.6 Accordingly, her Title VII claims were not timely presented to the agency with respect to
conduct prior to February 11, 2014. See 29 C.F.R. § 1614.105(a)(1). Much of the conduct that
Ms. Hinds complains about in her first, second, and third discrimination claims took place before
this date. Compl. at ¶ 18-20. The Defendant is entitled to summary judgment on these claims to
the extent that they involve concerns not timely presented to the CFPB. See Rosier, 833 F. Supp.
2d at 5. Ms. Hinds’ tenth, eleventh, and twelfth retaliation claims concern conduct that took
place after her initial administrative complaint and more than 45 days before she sought to
amend her complaint to include her new concerns. See EEOC Decision on Agency Motion for
Summary Judgment at 4; Def.’s Memo. ISO Mot. Summary Judgment at 30-32; id. Ex. II at 306-
308. The Defendant is entitled to summary judgment on these claims as well.
Although Ms. Hinds has not expressly opposed summary judgment for failure to exhaust,
she has opposed dismissal for failure to exhaust based on 29 C.F.R. § 1614.105(a)(2), which
allows an extension of the 45-day limit for initiating counseling if “despite due diligence [the
aggrieved person] was prevented by circumstances beyond his or her control from contacting the
counselor within the time limits.” Pl.’s Opp. to Def.’s Mot. Dismiss at ¶¶ 39, 46, 47. According
to Ms. Hinds, she initiated contact with the EEO office “as soon as she was aware of the alleged
actions,” and the CFPB’s Office of Civil Rights accepted her explanation for failing to initiate
counseling within the ordinary 45-day period. Id. at ¶ 39. However, the actions in question are
ones of which she must have been aware soon enough to satisfy the 45-day limit with the
6
Ms. Hind’s earlier contact, in September 2013, is not relevant to the timeliness of her claims
because it did not lead to the filing of a formal administrative complaint, which would have been
a necessary prerequisite to asserting her claim in federal court. See Bowie, 283 F. Supp. 2d at 33;
see also Compl. at ¶ 14.
7
exercise of due diligence.7 Ms. Hinds’ allegation to the contrary is unsupported by the record
and does not satisfy her burden of setting forth “specific facts showing that there is a genuine
issue for trial.” See Anderson, 477 U.S. at 250. Accordingly, the Defendant is entitled to
summary judgment on Ms. Hinds’ unexhausted discrimination and retaliation claims.8 Even if
Ms. Hinds had satisfied Title VII’s exhaustion requirements, however, her claims would fail on
the merits for the reasons explained below.
B. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds’
Discrimination Claims
Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment” or “to limit,
segregate, or classify his employees . . . in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status as an employee”
on the basis of that individual’s race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-2(a). Title VII discrimination claims are subject to the burden-shifting framework
established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff bears the
initial burden of establishing a prima facie case of discrimination by establishing that: “(1) she is
7
See Compl. at ¶ 18 (alleging that a manager gave Ms. Hinds a verbal warning about violating
agency policy more than 45 days before Ms. Hinds initiated contact with an EEO counselor); id.
at ¶ 19 (alleging that a manager asked Ms. Hinds about why she chose a certain workstation
more than 45 days before Ms. Hinds initiated contact with an EEO counselor); id. at ¶ 20
(alleging that a manager called Ms. Hinds and threatened to give her a substandard rating for her
2013 annual performance more than 45 days before Ms. Hinds initiated contact with an EEO
counselor); id. at ¶ 36 (alleging that a manager notified Ms. Hinds that she was Ms. Hinds’ new
manager more than 45 days before she sought to amend her complaint); id. ¶ 37 (alleging that a
manager planned a visit to an exam on which Ms. Hinds was working more than 45 days before
she sought to amend her complaint); id. at ¶ 38 (alleging that a manager asked Ms. Hinds to
attend a team meeting more than 45 days before she sought to amend her complaint).
8
This conclusion makes it unnecessary for me to reach the Defendant’s alternative argument
that Ms. Hinds’ unexhausted discrimination claims should be dismissed.
8
a member of a protected class; (2) she suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135,
145 (D.C. Cir. 2002). “[N]ot everything that makes an employee unhappy is an actionable
adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Rather, “an employee
suffers an adverse employment action if he experiences materially adverse consequences
affecting the terms, conditions, or privileges of employment or future employment opportunities
such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002).
If the plaintiff states a prima facie case of discrimination, the employer then bears the
burden of identifying “the legitimate, non-discriminatory . . . reason on which it relied in taking
the complained-of action.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). If the
employer provides such an explanation of its conduct, the central question on a motion for
summary judgment is whether “the employee produced sufficient evidence for a reasonable jury
to find that the employer’s asserted non-discriminatory reason was not the actual reason and that
the employer intentionally discriminated against the employee” on a protected basis. Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).9
9
One other rule bears passing reference. To state a hostile work environment claim, “a plaintiff
must show that his employer subjected him to discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir.
2008). As the Defendant’s thorough and helpful briefing notes, Ms. Hinds’ complaint does not
expressly assert a hostile work environment claim. Def.’s Memo. ISO Mot. Summary Judgment
at 36-38; Def.’s Reply ISO Mot. Summary Judgment at 20-21. Ms. Hinds has not disputed this
characterization of her claims in her opposition or in her many other filings. However, Ms.
Hinds’ complaint does allege that micromanagement by one of her managers “gave rise to a
hostile and abusive environment as he continued to subject her to actions and inactions in
violation of Title VII and the CFPB policies and procedures.” Compl. ¶ 19. This statement
appears to be a conclusion that Ms. Hinds wishes me to reach based on her allegation that the
manager asked her about why she chose to work at a certain workstation. See id. To the extent
9
Ms. Hinds’ seven discrimination claims fail because the conduct of which she complains
has non-discriminatory justifications and she has not raised a triable issue of fact as to whether
these justifications are pretextual. Many of her claims fail for the additional reason that the
conduct of which she complains does not qualify as adverse employment action.
Ms. Hinds’ first discrimination claim fails for both these reasons.10 It alleges that
Ms. Hinds’ former HR manager, Milton Pepin, verbally warned her about violating the CFPB’s
travel policy and gave her a letter of counseling. Compl. ¶ 18. Ms. Hinds alleges that, during the
time she worked for him, Mr. Pepin did not give other employees letters of counseling, but she
does not allege that any other employees engaged in conduct similar to her own. Id. Ms. Hinds
also alleges that she later discovered that a CFPB management official drafted a five-day
suspension letter but did not serve it to her. Id. These allegations do not concern an adverse
employment action. See Turner v. Shinseki, 824 F. Supp. 2d 99, 116 (D.D.C. 2011) (holding that
verbal and written criticisms are not adverse employment actions “unless they are tied to the
employee’s bonus, or result in some other material employment action”); Baloch, 550 F.3d at
1201 (“[C]ourts have been unwilling to find adverse actions where the suspension is not actually
served.”). Moreover, the Defendant has explained the challenged conduct on non-discriminatory
grounds that Ms. Hinds has not disputed: Ms. Hinds was reprimanded because she traveled from
her home in Connecticut to New York City for her background-investigation interview without
that this statement could be liberally construed as a separate hostile work environment claim, it is
conclusory and inadequate. Although the complaint alleges numerous instances of perceived
discrimination, it does not adequately allege facts showing that Ms. Hinds was actually subject to
discrimination that was sufficiently severe or pervasive to state a hostile work environment
claim.
10
Alternatively, as explained above, this claim also fails because Ms. Hinds did not raise it in a
timely manner.
10
required authorization after being specifically instructed not to travel to New York for the
interview and after confirming with Mr. Pepin that the interview would be conducted locally.
Def.’s Memo. ISO Mot. Summary Judgment at 11-13. Thus, the Defendant is entitled to
summary judgment as to this claim.
Ms. Hinds’ second discrimination claim fails for similar reasons.11 Ms. Hinds alleges
that Mr. Pepin micromanaged her and, specifically, that he questioned why she chose a specific
workstation when she was working on an assignment in New York, even though other examiners
selected their workstations without being questioned by their managers. Compl. ¶ 19. This
allegation does not state a prima facie case of discrimination because it does not concern
“materially adverse consequences affecting the terms, conditions, or privileges of employment or
future employment opportunities such that a reasonable trier of fact could find objectively
tangible harm.” Forkkio, 306 F.3d at 1131. Even if Ms. Hinds had stated a prima facie case, the
Defendant has satisfied the burden of providing a non-discriminatory explanation of the only
conduct specifically alleged in this portion of the complaint: Mr. Pepin asked Ms. Hinds why
she picked the workstation she did because he had heard there were interpersonal issues that
made her not want to sit with the other examiners even though her assignment to the New York
project had been intended to help her practice working in a group environment. Def.’s Memo.
ISO Mot. Summary Judgment at 14; id. Ex. F at 1519-20. Ms. Hinds has not challenged this
explanation, and the Defendant is entitled to summary judgment on her second discrimination
claim.
11
As discussed above, Ms. Hinds did not timely raise her concerns about Mr. Pepin’s question
regarding her choice of workstations, and the Defendant is entitled to summary judgment on
these grounds as well.
11
Ms. Hinds’ third discrimination claim fairs no better.12 Ms. Hinds alleges that Mr. Pepin
called her by phone and threatened to rate her 2013 annual performance as substandard; that
although Mr. Pepin ultimately decided to rate her performance as acceptable, she deserved a
higher rating; and that Mr. Pepin wrote negative comments in her 2014 performance evaluation,
which were later removed as part of a settlement agreement. Compl. ¶ 20. Mr. Pepin’s alleged
threat was not an adverse employment action because it did not materialize and did not result in
materially adverse consequences or objectively tangible harm. See Valles-Hall v. Ctr. for
Nonprofit Advancement, 481 F. Supp. 2d 118, 144 (D.D.C. 2007). Moreover, performance
evaluations are generally not actionable as adverse employment actions, unless they can be
causally linked to some objectively tangible harm, such as the denial of a bonus or of
consideration for a promotion, which Ms. Hinds has not alleged. Douglas, 559 F.3d 552.
Finally, the Defendant argues, and Ms. Hinds has not meaningfully contested, that Mr. Pepin’s
conduct was justified on the non-discriminatory basis of Ms. Hinds’ “documented difficulties
meeting deadlines, following instructions and policies, and communicating with others.” Def.’s
Memo. ISO Mot. Summary Judgment at 15.
Ms. Hinds’ fourth discrimination claim is that Mr. Pepin denied her requests for
reimbursement requests of $631.45 in business travel expenses between March 28 and April 14
of 2014. Compl. ¶ 21. The Defendant has explained that Mr. Pepin’s conduct was justified on
the non-discriminatory ground that Ms. Hinds incurred a variety of travel expenses for
unauthorized and unnecessarily expensive travel arrangements during this period, including
expenses that she was warned in advance could not be reimbursed. Def.’s Memo. ISO Mot.
12
Indeed, even before reaching the merits, Ms. Hinds’ claim regarding her 2013 annual
performance review could be disposed of on the alternative ground that Ms. Hinds failed to
exhaust her claim, as discussed above.
12
Summary Judgment at 16. Because Ms. Hinds has not established a genuine dispute as to
whether this justification is pretextual, the Defendant is entitled to summary judgment on this
claim.
Ms. Hinds’ fifth discrimination claim is that Mr. Pepin failed to promote Ms. Hinds on
May 5, 2014 and, relatedly, that he did not conduct a promotion review within 30 days of that
date, did not review the materials she sent him to demonstrate her eligibility for promotion,
asked her to send him copies of her work product, and did not respond to one of Ms. Hinds’
emails requesting promotion. Compl. ¶ 22. The Defendant has explained that promotion is not
automatic or guaranteed and that an employee must demonstrate the ability to perform at the
next-higher level in order to be considered ready for promotion. Def.’s Memo. ISO Mot.
Summary Judgment at 17. The Defendant has further explained that Mr. Pepin was justified in
concluding that Ms. Hinds had not demonstrated the ability to perform at the next higher level
because, among other things, she refused to provide him copies of her work product so that he
could evaluate her performance, she did not participate in the exam where Mr. Pepin had planned
for her to demonstrate the ability to play a leadership role, and she had a repeated pattern of
disregarding CFPB policies and direct instructions about travel, which is an integral part of her
role. Id. at 18-19. Ms. Hinds has not established a genuine dispute as to pretext and cannot go
forward with this claim.
Ms. Hinds’ sixth discrimination claim is that Mr. Pepin subjected her to “berating email
messages” that she views as “trivial, micro managing [sic] and unnecessary.” Compl. ¶ 23. This
allegation does not concern an adverse employment action. Moreover, the Defendant has alleged
that Mr. Pepin’s emails were motivated by the legitimate, non-discriminatory goal of supervising
and assisting a new examiner, citing to several emails that articulate Mr. Pepin’s desire to
13
promote Ms. Hinds’ professional development. Def.’s Memo. ISO Mot. Summary Judgment at
19. Ms. Hinds has not identified any specific email messages to which she objects or created a
triable issue of fact as to whether Mr. Pepin had some discriminatory motive rather than the
motive that the Defendant claims.
Ms. Hinds’ seventh discrimination claim is that the CFPB discriminated against her in
two respects when determining her starting salary. Compl. ¶ 24-25. First, Ms. Hinds alleges that
the CFPB denied her pay-retention benefits to match her prior salary at a different federal
agency, even though it granted pay retention benefits to a white male. Id. ¶ 25. Second,
Ms. Hinds alleges that the CFPB gave the white male higher locality pay than she enjoyed, even
though they both lived in the same geographical area. Id. ¶ 25. However, the Defendant
responds that Ms. Hinds’ pay was determined by a pay-setting tool based on her directly relevant
work experience, so that any pay differential between her and other CFPB employees was
authorized by the Equal Pay Act and based on non-discriminatory criteria. Def.’s Memo. ISO
Mot. Summary Judgment at 20. The Defendant has provided documentation that the original
salary offer to the white male in question did not match his salary at the federal agency where he
previously worked, but that he negotiated a higher salary based on his directly relevant
experience and training—experience and training that Ms. Hinds lacked. Id. at 20-21; id. Ex.
XX. It has also provided documentation that the white male’s higher locality pay was the result
of an administrative error that was subsequently corrected. Id. at 21 n.2; id. Ex. YY. Ms. Hinds
has not offered any evidence to create a genuine issue of fact as to whether these non-
discriminatory explanations of her pay rate are pretextual. Accordingly, Ms. Hinds’ seventh
discrimination claim fails, like her others.
14
C. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds’
Discrimination Claims
Title VII’s retaliation provision makes it unlawful for an employer “to discriminate
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge . . . under this
subchapter.” 42 U.S.C. § 2000e-3(a). Like discrimination claims, Title VII retaliation claims are
governed by the McDonnell Douglas framework. Walker, 798 F.3d at 1091. To state a prima
facie case of retaliation, a plaintiff must allege that: (1) she “engaged in protected activity”; (2)
she “was subjected to an adverse employment action”; and (3) “there was a causal link between
the protected activity and the adverse action.” Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir.
2007). In the context of retaliation claims, an adverse employment action is one that “well might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). This is an objective
standard for distinguishing “significant from trivial harms” that does not depend on a plaintiff’s
subjective feelings and does not make actionable “those petty slights or minor annoyances that
often take place at work and that all employees experience.” Id. at 68-69.
If the plaintiff states a prima facie case of retaliation, the employer then bears the burden
of identifying “the legitimate . . . non-retaliatory reason on which it relied in taking the
complained-of action.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). If the
employer provides such an explanation of its conduct, the disposition of a motion for summary
judgment turns on whether “the employee produced sufficient evidence for a reasonable jury to
find that the employer's asserted . . . non-retaliatory reason was not the actual reason and that the
employer intentionally discriminated or retaliated against the employee.” Id. at 1092.
15
Like her discrimination claims, Ms. Hinds’ 14 retaliation claims fail because the
Defendant has provided non-discriminatory justifications for the conduct of which she complains
and Ms. Hinds has not adequately challenged these justifications as pretextual. Many of them
also fail because the conduct of which she complains does not qualify as adverse employment
action.
Ms. Hinds’ first retaliation claim is that Mr. Pepin refused to authorize her to travel to an
exam site on a flight scheduled to arrive after the start of the exam. Compl. ¶ 27. Ms. Hinds
alleges that this refusal was unreasonable because: (1) Mr. Pepin did not contact the exam’s
portfolio manager or examiner in charge to determine whether Ms. Hinds’ late arrival would
disrupt the exam; (2) “Due to flight and other delays,” there was no guarantee that Ms. Hinds
would arrive on time even if she booked an earlier flight; (3) “Mr. Pepin could have instructed
the Plaintiff to travel a day in advance if it was imperative that she arrived at a specific time”;
and (4) Other examiners were not penalized for late arrivals that were due to travel delays. Id.Ms. Hinds does not allege, however, that other examiners were allowed to plan to arrive late.
Nonetheless, she alleges that Mr. Pepin refused to allow her to plan a late arrival “to incite a
travel incident so that he could issue a disciplinary action.” Id. Because Ms. Hinds makes no
suggestion that disciplinary action ensued, there was no adverse employment action: Asking an
employee to plan to arrive at work on time is not an act that would dissuade a reasonable worker
from pursuing activity protected by Title VII. See Burlington, 548 U.S. at 68. Moreover, the
Defendant explains Mr. Pepin’s conduct on the non-discriminatory, and entirely reasonable
ground that he wanted his employees to make travel arrangements that would enable them to
arrive to work assignments on time. Ms. Hinds has not set forth facts sufficient to create a
16
genuine dispute as to whether this justification is pretextual. For both these reasons, the
Defendant is entitled to summary judgment.
Ms. Hinds’ second retaliation claim is that Mr. Pepin sent her an email assigning her
work while she was detailed to Washington, D.C. Compl. ¶ 28. According to Ms. Hinds, she
was detailed to D.C. pending an internal investigation into complaints that she had lodged
against Mr. Pepin, and it was inappropriate for Mr. Pepin to assign work to her because he did
not know whether she would remain under his supervision after the investigation. Id. The
Defendant has produced Mr. Pepin’s email, which outlined the assignments for all the examiners
under his supervision and stated that another examiner was to complete the work that he had
been assigned to do with Ms. Hinds. Def.’s Memo. ISO Mot. Summary Judgment Ex. HH.
Ms. Hinds has not disputed that this is the email of which she complained. Ms. Hinds has not
created a triable fact issue as to whether Mr. Pepin acted in a way that would deter a reasonable
employee from engaging in protected activity or as to whether the Defendant is relying on
pretext in asserting that the email served the legitimate purpose of ensuring that employees
understood what work they were expected to do. Accordingly, the Defendant is entitled to
summary judgment on this claim.
Ms. Hinds’ third retaliation claim is that the CFPB denied her request to be reassigned
outside the Northeast Region, in which Mr. Pepin worked, pending resolution of an investigation
into her harassment complaints against Mr. Pepin. Compl. ¶ 29. Ms. Hinds alleges that CFPB
policy allows an employee who files a harassment complaint to “request” reassignment, that the
CFPB initially reassigned her to work in D.C., and that the CFPB declined her request to extend
her D.C. assignment when it ended prior to the conclusion of the internal investigation. Id. The
Defendant has explained that Ms. Hinds went back to work in the Northeast Region after her
17
temporary detail to D.C. because the detail to D.C. ended and there was no policy entitling
Ms. Hinds to an extension. Def.’s Memo. ISO Mot. Summary Judgment at 24. Ms. Hinds has
provided no basis for concluding that the Defendant acted for retaliatory reasons rather than
simply allowing events to follow their normal course.
Ms. Hinds’ fourth retaliation claim is that, when she returned to the Northeast Region,
she was temporarily assigned to a manager named Alla Vaynrub, who she believes had a close
relationship with Mr. Pepin because she covered for him when he was away from work. Compl.
¶ 30. Even though this reassignment had the effect of granting her apparent desire not to be
supervised by Mr. Pepin, Ms. Hinds was still dissatisfied. Ms. Hinds wishes that the CFPB had
consulted her before reassigning her to a new manager and that it had taken unspecified steps to
protect her from Title VII violations. Id. However, Ms. Hinds has not alleged that her
reassignment to work under Ms. Vaynrub caused her any objective harm, and the reassignment
in itself is not an adverse employment action. See Forkkio, 306 F.3d at 306 (holding that
assignment to work under supervisor whom plaintiff considered offensive was not an adverse
action supporting a retaliation claim because plaintiff had not alleged that the assignment caused
any objective harm). Moreover, Ms. Hinds has not raised a fact issue as to pretext in response to
the Defendant’s assertion that she was assigned to work for Ms. Vaynrub until a permanent
supervisor could be assigned because Ms. Vaynrub was available to coordinate and supervise her
exam work. See Def.’s Memo. ISO Mot. Summary Judgment at 25. For both these reasons, the
Defendant is entitled to summary judgment on this retaliation claim.
Ms. Hinds’ fifth retaliation claim is that she was assigned to work on an exam where she
would be required to report to yet another employee that she had mentioned in her EEO
complaint. Compl. ¶ 31. Ms. Hinds again complains that the CFPB failed to take unspecified
18
steps to protect her from Title VII violations and that she was not consulted prior to receiving
exam assignments. Id. However, the Defendant responds that the official who gave Ms. Hinds
her assignment was not aware that she had any dispute with the other examiners on the exam and
made the assignment for non-retaliatory reasons, including the fact that the exam provided
opportunities that would further Ms. Hinds’ career development and the fact that Ms. Hinds was
unwilling to drive to exam sites, thus limiting the pool of potential projects on which she could
work. Def.’s Memo. ISO Mot. Summary Judgment at 26. Moreover, the Defendant notes that
Ms. Hinds never in fact worked on the exam of which she complains: When she asked to be
reassigned to a different exam, the CFPB overcame significant logistical hurdles to
accommodate her request before the exam started. Id. at 25-26. The Defendant is entitled to
summary judgment because there is no genuine dispute as to whether the non-retaliatory reasons
for the CFPB’s conduct were pretextual.
Ms. Hinds’ sixth retaliation claim is that she was required to meet with Mr. Pepin to
discuss her 2014 performance evaluation. Compl. ¶ 32. Although Ms. Hinds was no longer
working for Mr. Pepin at the time, he was required to prepare her evaluation because he had
supervised her during the fiscal year under review. Id. Ms. Hinds alleges that the meeting was
unnecessary because Mr. Pepin was not her current manager and because he sent her a copy of
her performance evaluation prior to the meeting. Id. The Defendant responds that requiring
Ms. Hinds to meet with Mr. Pepin was not an adverse employment action and explains that all
field managers, including Mr. Pepin, had been instructed to conduct in-person reviews “because
such meetings are more effective and help foster communication.” Def.’s Memo. ISO Mot.
Summary Judgment at 26. There is no genuine dispute as to whether this non-retaliatory
directive, which applied to all employees, was a pretext for retaliation against Ms. Hinds.
19
Ms. Hinds’ seventh retaliation claim is that on November 14, 2014, Erin Berger, the
portfolio manager for the exam on which she was working at the time, sent communications to
Ms. Hinds berating her for not completing work on the day that she had to travel to meet with
Mr. Peppin for her performance review. Compl. ¶ 33. The Defendant responds that the email in
question, which it has produced, is not an adverse employment action. Def.’s Memo. ISO Mot.
Summary Judgment at 28. The email is focused on resolving several concerns that Ms. Hinds
raised to Ms. Berger, is professional rather than berating, and would not dissuade a reasonable
worker from engaging in conduct protected by Title VII. See id. Ex. SS at 125-27. As the
Defendant also suggests, Ms. Berger had legitimate reasons for asking that the employees under
her supervision be responsive to email during work hours. Id. at 28. Particularly in light of the
fact that Ms. Berger was not aware that Ms. Hinds had engaged in activities protected by Title
VII, Ms. Hinds has not created a genuine dispute as to whether the email was motivated by
retaliatory animus rather than be these legitimate managerial concerns. See id. at 27-28; id. Ex.
OO at 2377.
Ms. Hinds’ eighth retaliation claim is that Ms. Berger’s email stated that Ms. Berger
would not support Ms. Hinds’ request for reassignment to another exam, even though Ms. Hinds
had complained about another employee. Compl. ¶ 34. Ms. Hinds’ complaint was that this
employee was copying project managers on his emails to her, and Ms. Hinds expressly stated, “If
this policy is extended to all examiners then that’s fine.” Def.’s Memo. ISO Mot. Summary
Judgment Ex. SS at 126. Ms. Berger’s email reminded Ms. Hinds that, as she had already been
informed, the policy of copying project managers applied to all examiners. Id. The Defendant
explains that, as Ms. Berger’s email states, Ms. Berger did not support reassignment because Ms.
Hinds was a necessary part of the exam team and because removing anyone from the team would
20
disrupt the examination substantially. Id. at 29; id. Ex. SS at 125. Ms. Hinds has not created a
genuine dispute as to whether this justification of Ms. Berger’s email is pretextual, and any
allegation that Ms. Berger’s real motive was retaliatory is undermined by the fact that Ms.
Berger was not aware of Ms. Hinds’ Title VII activities at the time she wrote her email. See id.
at 28; id. Ex. OO at 2377.
Ms. Hinds’ ninth retaliation claim is that Mr. Pepin denied her request for a promotion on
December 16, 2014. Compl. ¶ 35. The Defendant explains that Mr. Pepin did not support her
request for promotion—a decision that ultimately lay with more senior management—because of
Ms. Hinds’ refusal to provide the work-product documentation he needed to evaluate her
eligibility and because of her other problems, such as failure to comply with CFPB travel
policies and failure to meet assignment deadlines. Def.’s Memo. ISO Mot. Summary Judgment
at 29-30; id. Ex. SS at 29-30. Ms. Hinds has not raised a question of fact as to whether these
legitimate reasons for Mr. Pepin’s decision were pretextual.
Despite her earlier complaints about being supervised by Ms. Vaynrub—not to mention
her complaints about being supervised by Mr. Pepin before that—Ms. Hinds’ tenth retaliation
claim is that she was reassigned from her temporary manager, Ms. Vaynrub, to a permanent
manager, Marsha Vaughn.13 Compl. ¶ 36. Ms. Hinds complains that she “did not receive any
advance information regarding why” she was reassigned. Id. She infers that she was reassigned
for retaliatory reasons from the facts that: (1) Before the reassignment, Ms. Vaughn had been the
subject of an EEO complaint by an African-American woman and had been the subject of
several union grievances; and (2) After the reassignment, Ms. Vaughn replied to the slaughtered
13
As discussed above, Ms. Hinds failed to administratively exhaust this claim. This provides an
independently adequate basis for summary judgment in addition to the grounds discussed here.
21
snowman email as described in Part I above.14 Id. The Defendant has explained the non-
retaliatory reasons for which Ms. Hinds was reassigned to work for Ms. Vaughn: Ms. Hinds
needed a permanent supervisor to take the place of her temporary supervisor, Ms. Hinds had
asked to be assigned to a new manager, and working for Ms. Vaughn could provide Ms. Hinds a
fresh start since Ms. Vaughn had transferred from another region and had no connection to the
prior events with Ms. Hinds. Def.’s Memo. ISO Mot. Summary Judgment at 30-31; id. Ex. QQ
at 2442.15 The Defendant is entitled to summary judgment on this claim because there is no
genuine dispute as to whether these legitimate reasons are pretextual.
14
The complaint alleges that the CFPB violated Title VII by reassigning Ms. Hinds, and cites
the email as evidence to support this claim. However, subsequent filings suggest that Ms. Hinds
also believes that Ms. Vaughn violated Title VII by sending her email, which states in whole, “I
love this!!” Correction to Pl.’s Opp. to Def.’s Mot. Summary Judgment Ex. A. Although Ms.
Hinds has alleged that “Ms. Vaughn inappropriately distributed a violent image to the Plaintiff,”
Compl. ¶ 36, the image in question was distributed to a group of people including Ms. Hinds in
an earlier email, to which Ms. Vaughn replied. Correction to Pl.’s Opp. to Def.’s Mot. Summary
Judgment Ex. A. Ms. Hinds has not created a genuine issue of fact as to whether Ms. Vaughn’s
email would dissuade a reasonable worker from engaging in protected conduct or as to whether
Ms. Vaughn’s message was motivated by retaliatory intent.
15
This defense of the assignment to work under Ms. Vaughn does not rely in any way on what
Ms. Hinds alleges is a false insinuation by the Defendant that she filed an EEO complaint against
an individual named “Mr. Chicorikas.” See Compl. ¶ 36. According to Ms. Hinds, this
insinuation was made in “Defendant’s summary Judgment” (presumably a document or decision
related to the administrative proceedings that preceded this case), which stated as follows:
Complainant’s argument that no one from the Southeast Region should supervise
her is even more farfetched, and it is contradicted by the Complainant’s
simultaneous assertion that she should have been assigned to Mr. Chicorikas—a
supervisor [in] the Northeast Region, which also has EEO activity, including
Complainant’s own complaints.
Id. I do not believe this statement insinuates that Ms. Hinds filed an EEO complaint against
Mr. Chicorikas. In any event, whether or not Ms. Hinds filed an EEO complaint against
Mr. Chicorikas is irrelevant to the analysis above and has no impact on the disposition of this
case.
22
Ms. Hinds’ eleventh retaliation claim is that Ms. Vaughn planned a “surprise trip” to Ms.
Hinds’ examination site in New York during her first week working in the Northeast Region.16
Compl. ¶ 37. Ms. Hinds alleges that this was inappropriate because Ms. Vaughn should have
first visited the exams in her own portfolio and because an African-American woman had
brought an EEO complaint against Ms. Vaughn. Id. However, the Defendant has provided
evidence that Ms. Vaughn planned her trip at the request of the portfolio manager, who needed
someone to cover for her, and that Ms. Vaughn wanted to meet Ms. Hinds on the trip because
Ms. Hinds was the only member of her team that she had not previously met. Def.’s Memo. ISO
Mot. Summary Judgment at 31; id. Ex. LL at 3125. Moreover, Ms. Vaughn’s plan to travel to
New York had no concrete impact on Ms. Hinds since Ms. Vaughn ended up cancelling her trip.
Id. at 31; id. Ex. LL at 3125. The Defendant is entitled to summary judgment on the alternative
grounds that merely planning a trip without informing an employee of it is not an adverse
employment action that would dissuade a reasonable worker from engaging in protected activity
and that Ms. Hinds has not created a genuine dispute as to pretext.
Ms. Hinds’ twelfth retaliation claim is that Ms. Vaughn asked her to attend a group
meeting during the week of January 19, 2015, despite having approved Ms. Hinds to use official
time to work on her EEO complaint that week.17 Compl. ¶ 38. She also alleges more generally
that her managers assigned her too much work for her to pursue her EEO complaint effectively.
16
Ms. Hinds also failed to exhaust this claim, which provides an alternative basis for summary
judgment as discussed above.
17
This is the last of Ms. Hinds’ unexhausted claims. The Defendant is entitled to summary
judgment on this claim due to Ms. Hinds’ failure to exhaust as well as for the reasons explained
here.
23
Id.18 However, Ms. Vaughn told Ms. Hinds when she asked her to call in for the one-hour
meeting that she should record the call as work time so that it would not count toward the time
that had been set aside for her EEO complaint. Def.’s Memo. ISO Mot. Summary Judgment at
32; id. Ex. LL at 3216. Thus, participation in the call did not adversely affect Ms. Hinds’ ability
to work on her EEO complaint, and Ms. Vaughn took steps to ensure that this would be the case.
The Defendant observes that Ms. Vaughn explained at the time that she wanted Ms. Hinds to
participate in the meeting because she thought it was important for team building. Id. at 32; id.
Ex. LL at 3216. Thus, there is a legitimate reason for Ms. Vaughn’s conduct, and Ms. Hinds has
provided no basis for questioning it as pretextual.
Ms. Hinds’ thirteenth retaliation claim is that Ms. Vaughn attempted to micromanage her
work by: (1) Asking Ms. Hinds whether she intended to be in New York on May 5, 2015; (2)
Communicating with the portfolio manager and examiner in charge for an exam on which
Ms. Hinds was working in order to monitor Ms. Hinds’ work; and (3) Requiring Ms. Hinds to
prepare a travel voucher while she was on bereavement leave so that she could obtain
authorization to travel to an exam when she returned to work. Compl. ¶ 39. This allegation does
not concern an adverse employment action. Moreover, Ms. Hinds has not created a genuine fact
issue as to whether Ms. Vaughn’s actions were justified by her legitimate interest in managing an
18
Ms. Hinds also alleges in this paragraph of her complaint that the Defendant responded to her
EEO complaint in part by stating (presumably in a filing), “Complainant’s allegation that this
request was somehow retaliatory defies common sense . . . .” Id. Ms. Hinds notes that “the
requirements for filing an EEO Complaint do not mandate common sense as a prerequisite” and
alleges that the Defendant’s statement associates “filing an EEO complaint with the lack of
common sense,” thereby deterring employees from protected conduct. Id. However, the
statement in question clearly refers to a specific allegation as defying common sense and not to
the activity of filing an EEO complaint as defying common sense. I make no comment regarding
her claim that “[t]he CFPB supposedly has controls in place in their hiring procedures to weed
out applicants without common sense.” See id.
24
employee under her supervision. See ¶33. The record reflects that Ms. Hinds emailed
Ms. Vaughn at the end of a period of bereavement leave to let her know that she would be taking
a sick day on May 3, 2015, taking a leave day on May 4, 2015, and returning to work on May 5,
2015. Id. Ex. AAA at 1118. The next day, which was May 4, 2015, Ms. Vaughn emailed
Ms. Hinds, stating, “I hope you feel better. I’m assuming you will be at the job site in the
morning. I haven’t seen a travel authorization yet.” Id. Ms. Hinds replied by saying that she
would not be working on site at the exam because she could not travel to the site without
preparing a travel authorization and because she could not prepare the travel authorization until
her first day back at work. Id. at 1117. Ms. Vaughn offered no objection, but asked Ms. Hinds
what she would be working on off-site. Id. Rather than answering the question, Ms. Hinds
replied, “When I am assigned to exam, I am under the supervision of the Portfolio FM and the
EIC. I believe that they are both responsible enough to make certain that my workload is
appropriate.” Id. Whatever insights this exchange may give into Ms. Hinds’ amenability to
supervision, this incident is not actionable under Title VII.
Ms. Hinds’ fourteenth retaliation claim is that Ms. Vaughn retaliated against her by
failing to conduct a promotion review within 30 days of May 5, 2015. Compl. ¶ 40. Ms. Hinds
alleges that such review was required by CFPB policies and procedures. Id. However, the
Defendant has explained that the CFPB’s promotion policy, as quoted in the complaint itself,
required a promotion review within 30 days of May 5, 2014. Def.’s Memo. ISO Mot. Summary
Judgment at 33.19 The Defendant has explained Ms. Vaughn’s failure to conduct a promotion
review on the legitimate grounds that CFPB policy did not call for her to conduct a promotion
review, Ms. Hinds did not ask for her to conduct a promotion review, and Ms. Hinds had written
19
Ms. Hinds’ complaint about not being promoted at that date is discussed above.
25
to Ms. Vaughn stating, “Regarding my plan to reach [promotion], I will not be discussing that
particular issue with you. This is [sic] issue is under investigation and I can only recommend
that you let the system work.” Id. at 34; id. Ex. BBB at 1124. Ms. Vaughn apparently accepted
Ms. Hinds’ recommendation. Ms. Hinds has not created a genuine issue of fact as to whether
this non-retaliatory explanation is pretextual. Accordingly, the Defendant is entitled to summary
judgment on this claim as on all the others.
Unlike in her administrative proceeding, at no point in the case before me has Ms. Hinds
alleged a hostile work environment claim. Had she do so, though, on the evidence before me I
would find that the Defendant was entitled to summary judgment on that count, too. Taken as a
whole, Ms. Hinds’ serial petty complaints against a succession of supervisors at the CFPB leads
to the conclusion that she is difficult to supervise, not that she was subjected to an “abusive
working environment.” See Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011). She has
failed to provide evidence of severe or pervasive “discriminatory intimidation, ridicule, and
insult.” See id.D. Ms. Hinds Is Not Entitled to Additional Discovery Before Summary Judgment
A party opposing a motion for summary judgment may seek additional discovery based
on an affidavit or declaration specifying the reasons that she cannot yet present the facts
necessary to justify her opposition. Fed. R. Civ. P. 56(d). To adequately specify the reasons for
further discovery, a party opposing summary judgment must “indicate what facts she intend[s] to
discover that would create a triable issue and why she could not produce them in opposition to
the motion.” Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999). An
affidavit or declaration in support of further discovery must be factually supported and may not
rely on conclusory assertions. Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006).
26
Ms. Hinds argues that she is entitled to further discovery before summary judgment.
Pl.’s Opp. to Def.’s Mot. Summary Judgment at 8-9, 26-29; Pl.’s Sur-Reply to Def.’s Mot.
Summary Judgment. However, her request for further discovery is not supported by an affidavit
or declaration as required by the Federal Rules. See Hicks v. Gotbaum, 828 F. Supp. 2d 152, 159
(D.D.C. 2011) (denying further discovery when party opposing summary judgment did not file
an affidavit or declaration). Moreover, Ms. Hinds has not specified what facts she intends to
discover or why they would create a triable issue defeating summary judgment. See Carpenter,
174 F.3d at 237.20 During the administrative proceedings that preceded this case, Ms. Hinds
engaged in extensive discovery, submitting at least 27 interrogatories, 12 requests for documents,
and 26 requests for admissions, as well as conducting 11 written depositions—all to supplement
a 3,300-page report of investigation that included documentary evidence and sworn statements
by over a dozen CFPB employees. Def.’s Memo. ISO Mot. Summary Judgment at 8-9; Reply
ISO Mot. Summary Judgment at 4; EEOC Decision on Agency Motion for Summary Judgment
20
Ms. Hinds makes five discovery requests. First, she seeks production of all emails from seven
CFPB employees between September 2013 and July 2015, although she previously agreed to
narrow this discovery request. Pl.’s Opp. to Def.’s Mot. Summary Judgment at 8; id. Ex. C; Pl.’s
Sur-Reply to Def.’s Mot. Summary Judgment at 7. Second, she seeks production of all emails
associated with the draft suspension letter mentioned in her first discrimination claim. Pl.’s Opp.
to Def.’s Mot. Summary Judgment at 8, 28. Third, she seeks unspecified discovery related to her
seventh discrimination claim. Id. at 8-9; Pl.’s Sur-Reply to Def.’s Mot. Summary Judgment at 7.
Fourth, she seeks production of all emails associated with Mr. Pepin’s rating of her 2013 annual
performance. Pl.’s Opp. to Def.’s Mot. Summary Judgment at 29; Pl.’s Sur-Reply to Def.’s Mot.
Summary Judgment at 7. Fifth, she seeks discovery regarding several internal CFPB meetings
that she learned about in June of 2017. Pl.’s Sur-Reply to Def.’s Mot. Summary Judgment at
4-7. At that time, the CFPB sent Ms. Hinds a letter stating that, due to an official’s inadvertent
failure to maintain appropriate calendar access controls, other CFPB personnel could have
improperly accessed limited information related to her that was contained in eight calendar
entries for phone calls or meetings. Id. Ex. A. Ms. Hinds seeks unspecified discovery regarding
these meetings, including, but not limited to, notes from those meetings. Id. at 6-7. As stated
above, Ms. Hinds has not specified what information she thinks she will discover or why it will
matter in this case.
27
at 20.21 Ms. Hinds’ concerns have received sustained attention over the last four years, and she
has been given ample opportunity to develop them. She is not entitled to further discovery
before summary judgment.
IV. CONCLUSION
Ms. Hinds paints a picture of racist behavior run amok at the CFPB: that over a two-year
period, numerous CFPB supervisors participated in 21 acts of racial discrimination and unlawful
retaliation against her. Even drawing all reasonable inferences in her favor, the Court is left with
a very different conclusion: that Ms. Hinds has ascribed unlawful motives to run-of-the-mill
workplace annoyances and well-meaning efforts by her colleagues to supervise and train a
difficult employee. Racial discrimination is a persistent and invidious threat to our society’s
21
Ms. Hinds challenges the adequacy of the record developed in the administrative proceedings,
in large part because the investigator submitted a copy of the slaughtered snowman email that
has a missing-image placeholder. See, e.g., Pl.’s Opp. to Def.’s Mot. Summary Judgment at 7-8
(alleging that the omission of the slaughtered snowman’s image was “an obvious attempt to help
the CFPB fight against the Plaintiff’s claims”); id. Ex. J at 1501; Pl.’s Mot. Determine Whether
Certain Witnesses Provided False and Misleading Statements Under Penalties of Perjury at 2-3
(alleging that the investigator deliberately omitted the slaughtered snowman’s image to help the
CFPB); id. Ex. B (same); Pl.’s Mot. Declare that the ROI Violates 29 CFR 1614 108(b) and
Initiate a DOJ Referral at 3, 5-6 (same); id. at Ex. B (same); Pl.’s Motion to Address False
Information and Potential Evidence Tampering at 3 (same); id. Ex. B (same); Pl.’s Reply ISO
Mots. at 3, 8 (same); id. Ex. E (same); Pl.’s Mot. Reconsideration for a Court-Appointed
Attorney at 3-4, 6-7 (same); id. Ex. D; see also Pl.’s Sur-Reply to Def.’s Mot. Summary
Judgment at 6 (asserting that the CFPB should have produced calendar entries that referenced
her, along with any notes from the meetings described by those calendar entries); id. at 7
(complaining that the EEOC instructed her not to file a motion to compel the production of
evidence that had already been produced, complaining that, after she agreed to narrow her
request, the CFPB did not produce all the emails she originally requested, and complaining that
she believes some witnesses provided false statements). The slaughtered snowman’s many
posthumous appearances in the record graphically illustrate that Ms. Hinds knows how to
identify specific missing facts that she considers material to her claims. See supra note 2. She
has not specified the missing facts that she intends to establish through further discovery,
although this is what she needed to do in order to satisfy the Federal Rules. See Carpenter, 174
F.3d at 237. Her concern that the record may have been inadequately developed is not an
adequate substitute for meeting this requirement.
28
welfare, but like pulling a fire alarm for kicks in a nursing home, false allegations of
discrimination impose high costs on us, too. For the reasons explained above, summary
judgment will be granted in favor of the Defendant. A separate order will issue.
2018.02.20
16:00:58 -05'00'
Dated: February 20, 2018 TREVOR N. MCFADDEN
United States District Judge
29