Pintro v. Pai ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LINDA PINTRO, :
:
Plaintiff, : Civil Action No.: 17-2090 (RC)
:
v. : Re Document No.: 21
:
AJIT PAI, Chairman, :
Federal Communications Commission, :
:
Defendant. :
MEMORANDUM OPINION
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Act of 1964, 42 U.S.C. § 2000e et seq., in three ways: (1) when it rescinded an offer of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
2
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.
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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.
4
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.
5
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.
6
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
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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.
8
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
9
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. Summary Judgment
A court may grant summary judgment when “the movant shows 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). A “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-
movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). The Court’s inquiry is essentially
“whether the evidence presents a sufficient disagreement to require submission to a jury or
10
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
251–52.
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the party
opposing summary judgment must point to specific facts in the record that reveal a genuine issue
that is suitable for trial. See Celotex, 477 U.S. at 324. In doing so, the nonmovant may not rely
on “statements that are impermissible hearsay or that are not based on personal knowledge.”
Shuler v. District of Columbia, 744 F. Supp. 2d 320, 327 (D.D.C. 2010) (citation and quotations
omitted). In considering a motion for summary judgment, a court must “eschew making
credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the nonmovant, see Anderson, 477 U.S. at 255.
Of particular relevance here, this Court has explained that “[s]ummary judgment for a
defendant is most likely when a plaintiff’s claim is supported solely by the plaintiff's own self-
serving, conclusory statements.” Bonieskie v. Mukasey, 540 F. Supp. 2d 190, 195 (D.D.C. 2008)
(citations omitted). That is because “conclusory allegations” and “unsubstantiated speculation,”
whether in the form of a plaintiff’s own testimony or other evidence submitted by a plaintiff to
oppose a summary judgment motion, “do not create genuine issues of material fact.” Id. at 200
n.12 (internal citation and quotation marks omitted); see also Sage v. Broad. Publ’ns, Inc., 997 F.
11
Supp. 49, 53 (D.D.C. 1998) (“Conclusory allegations made in affidavits opposing a motion for
summary judgment are insufficient to create a genuine issue of material fact.”).
B. Title VII Framework
Title VII of the Civil Rights Act of 1964 promises that “[a]ll personnel actions affecting
employees . . . shall be made free from any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e–16(a). The antiretaliation provision of Title VII “[p]rohibits
an employer from ‘discriminat[ing] against’ an employee or job applicant because that individual
‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or
participated in’ a Title VII proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 56 (2006) (quoting § 2000e–3(a)). The three-part McDonnell Douglas
burden-shifting framework applies when a Title VII plaintiff offers only indirect evidence of
discrimination or retaliation at summary judgment. McDonnel Douglas Corp. v. Green, 411
U.S. 792 (1973); see Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003) (applying the
framework to a discrimination claim); Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647,
650–51 (D.C. Cir. 2003) (applying the framework to a retaliation claim, in addition to a
discrimination claim). Under McDonnell Douglas, the plaintiff has the initial burden of
production to establish a prima facie case of discrimination; if she does, then the employer must
articulate a legitimate, non-discriminatory reason for its action; and if it does, then the plaintiff
must receive an opportunity to show that the employer’s reason was a pretextual cover for
discrimination. 411 U.S. at 802–05. Although McDonnell Douglas shifts the burden of
production between the parties, the plaintiff retains the burden of persuasion. St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993).
12
“Assuming the employer [has] proffer[ed] [a legitimate, non-discriminatory] reason, the
central question at summary judgment becomes whether the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory or non-
retaliatory reason was not the actual reason and that the employer intentionally discriminated or
retaliated against the employee.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015)
(quotations omitted). An employee may not show pretext by “simply criticizing the employer’s
decisionmaking process.” Hairston v. Vance–Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014). For
example, “[e]ven if a plaintiff ‘was victimized by poor selection procedures,’ [courts] may not
‘second-guess an employer’s personnel decision absent demonstrably discriminatory motive.’”
Id. (quoting Fischbach v. D.C. Dep’t of Corrs., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). Rather,
“[t]he plaintiff must identify evidence from which a reasonable jury could find that the
employer’s stated reasons were ‘phony.’” Moeller v. LaFleur, 246 F. Supp. 3d 130, 140 (D.D.C.
2017) (quoting Fischbach, 86 F.3d at 1183). In addition, “[t]he evidence of record must be such
that a reasonable jury could not only disbelieve the employer’s reasons, but conclude that the real
reason the employer took a challenged action was a prohibited one.” Walker, 798 F.3d at 1093;
see also Mount v. Johnson, 174 F. Supp. 3d 553, 561 (D.D.C. 2016) (“[P]roviding sufficient
evidence for a jury to reject the defendant’s reason is not sufficient ‘if it is nevertheless
impossible for a rational factfinder to conclude the action was discriminatory.’” (quoting Rochon
v. Lynch, 139 F. Supp. 3d 394, 404 (D.D.C. 2015))).
III. ANALYSIS
A. Offer of permanent lateral reassignment
Pintro first claims that she was retaliated against “when the Agency . . . rescinded an
offer of permanent lateral reassignment to PSH[S]B as a Senior Legal Advisor.” Compl. ¶ 38.
13
The Agency puts forward several arguments in favor of summary judgment on this claim, the
first of which is that that Pintro failed to timely exhaust her administrative remedies for this
claim. MSJ at 20. When a federal employee believes she has been discriminated against in
violation of Title VII, she must contact an EEO Counselor “within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the
effective dates of the action,” so that they can try to resolve the matter informally. See 29 C.F.R.
§ 1614.105(a)(1). If the parties are unable to resolve the issue informally, the aggrieved person
may file a formal administrative complaint within 15 days of receiving notice of her right to do
so from the EEO counselor. See id. § 1614.106(b). Failure to file a formal administrative
complaint within this timeframe renders any subsequent Title VII claim on the same grounds
untimely for failure to exhaust administrative remedies. See Schlottman v. Perez, 739 F.3d 21,
27 (D.C. Cir. 2014).
Failure to exhaust administrative remedies under Title VII is an affirmative defense, and
the burden therefore falls on the defendant to plead and prove the defense. See Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997); Koch v. Walter, 935 F. Supp. 2d 143, 150 (D.D.C.
2013). If the defendant succeeds in meeting its burden, the burden then shifts to the plaintiff to
put forth evidence that would justify the equitable avoidance of the defense. See Rann v. Chao,
346 F.3d 192, 195 (D.C. Cir. 2003); Noisette v. Geithner, 693 F. Supp. 2d 60, 68 (D.D.C. 2010).
For exhaustion purposes, a timely-filed EEO charge encompasses claims that are “like or
reasonably related to the allegations of the charge and growing out of such allegations.” Park v.
Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citation omitted). To be sufficiently related in
this manner, a claim “must arise from ‘the administrative investigation that can reasonably be
expected to follow the charge of discrimination.’” Id. (citation omitted).
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The timeline here is not in dispute. On March 8, 2016, Pintro spoke to an EEO counselor
and “complained that the Agency detailed her, instead of permanently transferring her, to the
Policy Division and that OGC interfered with that reassignment.” Statement of Material Facts of
as to which there is no Genuine Dispute (“SOMF”) ¶ 149, ECF No. 21; Complainant’s Resp. to
Agency’s Statement of Undisputed Material Facts (“Resp. SOMF”) ¶ 149, ECF No. 23-1. On
April 14, she was given a Notice of Final Interview, which informed her that she had fifteen days
to file a formal EEO complaint. SOMF ¶¶ 150–51; Resp. SOMF ¶¶ 150–51; RFA Nos. 43–44.
She did not file anything within those fifteen days. SOMF ¶ 152; Resp. SOMF ¶ 152; RFA No.
44. These admissions, which are supported by the Agency’s production of the relevant
documents, MSJ Ex. N; MSJ Ex. O, are enough to show that the allegations Pintro raised with
the EEO counselor in March 2016 were forfeit. Wilson v. Clayton, 272 F. Supp. 3d 25, 30
(D.D.C. 2017) (“If an aggrieved party fails to comply with [the EEOC regulations’] timeline, the
discrete discriminatory act is ‘not actionable.’” (quoting Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002)). The burden therefore returns to Pintro to argue why the
administrative exhaustion requirement should not be applied to this first claim. See Rann, 346
F.3d at 195.
Pintro argues that this claim ought to proceed despite her failure to exhaust administrative
remedies based on the rule that a claim not included in an administrative complaint may still be
brought in federal court if “it is like or reasonably related to another claim or other claims that
were exhausted administratively.” Caldwell v. ServiceMaster Corp., 966 F. Supp. 33, 49
(D.D.C. 1997) (citing Park, 71 F.3d at 907). She argues that the retaliation claim based on the
rescission of an offer for permanent reassignment in January 2016 is “‘like or reasonably related
to’ those claims in the administrative complaint[s] . . . for which [she] exhausted administrative
15
remedies,” namely those Complaints that she filed in the fall of 2016. Opp’n at 13 (quoting
Pierson v. Wash. Metro. Area Transit Auth., 821 F. Supp. 2d 360, 364 (D.D.C. 2011)). As Pintro
explains it, these later claims—about her permanent transfer in June 2016 and about OGC
interference with her supervision—are both “rooted in [Pintro’s] agreement with Admiral
Simpson to be permanently reassigned and Defendant’s decision to interfere and deny the
reassignment.” Opp’n at 13–14.
The “like or reasonably related” exception does not suffice to preserve Pintro’s first claim
because that exception is not properly applied retroactively in the way Pintro seems to argue for.
Pintro analogizes to Pierson, where a plaintiff had successfully exhausted her administrative
remedies for a claim that she was wrongfully terminated and was consequently permitted to add
on improperly-exhausted claims that she was wrongfully not rehired. Pierson, 821 F. Supp. 2d
at 366. In Pierson, “the plaintiff’s non-rehire retaliation claim specifically related to and grew
out of her initial EEOC charge.” Id. This is consistent with the “like or reasonably related”
exception, but Pintro’s suggested application of the exception is distinct in two notable ways.
First, the two claims in Pierson shared a significantly closer connection than Pintro’s claims.
Firing and failure to rehire are two sides of the same coin: refusing to rehire an unjustly fired
employee is, essentially, refusing to remedy the initial violation of her rights. Pintro, on the
other hand, posits that the alleged rescission in January of an offer for permanent reassignment
ought to be viewed as “reasonably related” either to her transfer in June to an unwanted position
or to interference by OGC with her supervision. The claims are not wholly unrelated, but are not
nearly as closely connected as the claims in Pierson. Second, and more significantly, Pintro’s
argument inverts the temporal and logical relationship between the claims. She says that the
preserved claims are “rooted in” the earlier, unpreserved claim, but even assuming that this is
16
true, it is the opposite of the situation in Pierson, where the unpreserved failure to hire claim was
necessarily rooted in the earlier, preserved claim for wrongful termination. See id.
Pierson demonstrates how the “like or reasonably related” exception can carry along
claims for actions subsequent to, or at least simultaneous with, properly preserved claims, but
Pintro has pointed to no case showing that the exception should allow her to reach back in time
for earlier claims that were never administratively exhausted. As the Supreme Court explained
in National Railroad Passenger Corp. v. Morgan, “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.” 536
U.S. at 113. Claims based on earlier acts that were not administratively exhausted may still be
relevant and related to a plaintiff’s broader case—the statute does not “bar an employee from
using the prior acts as background evidence in support of a timely claim”—but these forfeited
causes of action are not resuscitated when later discriminatory actions are challenged. Id.
Courts in this Circuit have noted that “it is unclear how broadly Morgan’s holding cuts” when it
comes to the carrying along of claims based on subsequent discriminatory acts. Howard v.
Kerry, 85 F. Supp. 3d 428, 433 (D.D.C. 2015) (citing Rashad v. Wash. Metro. Area Transit
Auth., 945 F. Supp. 2d. 152, 166 (D.D.C. 2013) (noting split among district courts)). But there
does not appear to be any support for the claim that it allows the kind of retroactive preservation
of prior unpreserved claims that Pintro has attempted.
Because the Agency has demonstrated that Pintro failed to administratively exhaust her
first claim, and because Pintro has failed to show that the administrative exhaustion requirement
should not apply, the Agency is entitled to summary judgment on this claim. The Court
therefore has no occasion to address the parties’ alternate arguments on this claim.
17
B. Permanent transfer without consent
Pintro’s second claim is that she was retaliated against when the Agency “permanently
transferred [her], without her consent, to PSHSB as an Attorney Advisor” in the Policy and
Licensing Division in June of 2016. Compl. ¶ 38. At the time of the transfer, Pintro still held a
position of record in IB, but had been detailed to PSHSB, Licensing and Policy Division since
January 22, 2016. RFA No. 20. The transfer on June 26, then, only changed Pintro’s position of
record. She was “moved” to the same office she had been in for six months. See MSJ Ex. B at
132; see also MSJ Ex. C. The FCC argues first that this transfer did not constitute an adverse
action actionable under Title VII and second that the agency had legitimate, non-retaliatory
reasons for transferring Pintro. MSJ at 27–31.
1. Adverse Action
Even though a plaintiff does not need to establish each and every element of a prima facie
case in order to defend against a motion for summary judgment, she still must show that she “has
suffered an adverse employment action.” Brady v. Office of Sergeant at Arms, 520 F.3d 490,
494 (D.C. Cir. 2008). To establish an adverse action in the context of a retaliation claim “a
plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co., 548 U.S. at 68 (quotations omitted). “Purely subjective injuries, such as dissatisfaction with
a reassignment, or public humiliation or loss of reputation will not suffice.” Ortiz-Diaz v. U.S.
Dep’t of Housing & Urban Dev., Office of Inspector Gen., 867 F.3d 70, 73 (D.C. Cir. 2017)
(quotations omitted). If “a reasonable juror could find that [the plaintiff] suffered an adverse
action” then summary judgment on that ground is inappropriate. Czekalski v. Peters, 475 F.3d
18
360, 365 (D.C. Cir. 2007). However, even if a plaintiff has suffered an adverse action, his
employer is still entitled to summary judgment if the employer “asserts a legitimate,
nondiscriminatory reason for [the] adverse employment action,” and plaintiff fails to produce
“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
plaintiff on a prohibited basis.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir.
2008).
Pintro suggests two related ways in which her transfer was an adverse action that would
have dissuaded a reasonable worker from making a charge of discrimination. First, she argues
that the transfer came with a demotion from Senior Legal Advisor to Attorney Advisor. Opp’n
at 22. This argument focuses only on the change in title. She acknowledges that her pay grade
did not change, MSJ Ex. C at 2; MSJ Ex. B at 132–330, and makes no mention of any change in
her duties. 1 Second, she argues that this “lower position” affected her future career opportunities
and was detrimental to her possible advancement at the Agency. Opp’n at 22. Pintro fails to
establish how a reasonable juror could find she suffered a materially adverse action because she
has not produced evidence to establish that the “demotion” she alleges even occurred, let alone
that would dissuade a reasonable worker from filing a charge of discrimination.
In arguing that her title changed to her detriment, Pintro is conflating two types of titles
used by the federal government. As the Agency has pointed out, a “position title” and an
“organizational title” refer to two different things. MSJ at 4 n.1–2. The Office of Personnel
Management (OPM) is required by law “to establish the official titles of positions in published
1
Pintro does not explain, nor does the Agency address, whether her duties changed at the
time of the transfer when she went from being an IB employee detailed to PSHSB, Policy and
Licensing to having a position of record in PSHSB, Policy and Licensing.
19
classification standards” and “[o]nly the prescribed title may be used on official documents
relating to a position” including “position descriptions” and “personnel actions.” U.S. Office of
Personnel Management, TS-134 July 1995 (“OPM TS-134”), 14 (revised Aug. 2009). 2 But
agencies are not restricted to using these official position titles. OPM says that “[u]nofficial
titles (such as those relating to specific agency organizations or programs) may be appropriate
and helpful for internal agency use.” Id. This two-tier title framework is borne out by the
personnel action forms that have been produced in this litigation. A position description for
Pintro’s original position in IB, SAND lists her “Official Title of Position” as “Attorney
Advisor,” and then identifies her “Organizational Title” as “Legal Advisor.” 3 MSJ Ex. D at 1,
ECF No. 20-5. The form that effectuated Pintro’s transfer in June 2016 indicates that she held
the position title “Attorney Advisor” both in IB and in PSHSB. MSJ Ex. C at 1, 2. On the
position description form for her new position in PSHSB, Pintro’s “Official Title of Position” is,
again “Attorney Advisor,” and the “Organizational Title” box is left blank. Id. at 3. The more
detailed position description accompanying the form does indicate that the person holding that
position “serves as senior attorney-advisor and legal expert.” Id. at 4.
The record evidence thus makes clear that Pintro’s official title was, at all times,
“Attorney Advisor.” This is not necessarily the end of the road for her argument, though,
because it appears that she did lose the organizational title of “Legal Advisor” or “Senior Legal
Advisor” when she was transferred. Compare MSJ Ex. D, with MSJ Ex. C at 3. She would still
need to show, however, that the loss of an organizational title, alone, would be enough to
dissuade a reasonable employee from making or supporting a discrimination charge.
2
Available at https://www.opm.gov/policy-data-oversight/classification-
qualifications/classifying-general-schedule-positions/positionclassificationintro.pdf.
3
This space on the form reads: “Organizational Title or Position (if different from official
title).”
20
The only evidence Pintro cites to support the idea that this change in title was an adverse
action is the affidavit of Lauren Kravetz, Chief of Staff for PSHSB. MSJ Ex. K, ECF No. 20-12.
In opposing summary judgment, Pintro argues that “Kravetz stated that the Senior Legal Advisor
position denotes a certain level of experience and quality.” Opp’n at 22. Pintro’s paraphrase
does not provide the full context of Kravetz’s statement, which reads: “With the approval of their
bosses, there are people in the FCC who are called Senior Legal Advisor because their boss[es]
want to signify a certain level of ability or experience or a certain relationship to the
organization.” MSJ Ex. K at 5. This is entirely consistent with OPM’s description of unofficial
titles that “may be appropriate and helpful for internal agency use.” OPM TS-134 at 14.
Kravetz also downplayed the significance of organizational titles, saying that “[s]ometimes,
attorneys will add ‘Senior’ in front of Attorney Advisor to signify that they have a great deal of
experience, but it does not change their underlying Position Description, bargaining unit status,
and/or managerial status.” MSJ Ex. K at 5. Pintro cites nothing beyond Kravetz’s testimony to
explain why the loss of an organizational title, in and of itself, was an adverse action. She has
not testified, for example, that in IB or in PSHSB her supervisors did in fact use organizational
titles to suggest experience or ability. Nor has she testified that she asked and was not allowed to
use an organizational title, or to add the word “Senior” in front of “Attorney Advisor.”
Additionally, the position description indicating that Pintro would “serve[] as senior attorney-
advisor and legal expert” suggests that Pintro may have been regarded as having the status or
experience Kravetz describes, even without an organizational title.
At her deposition, Pintro suggested that she was not able to function in the Agency’s
professional environment without an organizational title, but she did not identify how the loss of
the title, specifically, caused this. See MSJ Ex. B. at 173. She said “When I go to a meeting, I
21
am not usually recognized as an attorney. I am often mistaken for a paralegal or someone’s
secretary.” Id. While this may very well be a result of discrimination or bias, it is not tied to the
lack of an organizational title. Pintro’s official position title—“Attorney Advisor”—would clear
up any misunderstanding of this sort just as well as an organizational title of “Legal Advisor” or
“Senior Legal Advisor” would. The fact that she is often not recognized as an attorney,
therefore, does not help establish that the loss of an organizational title was an adverse action.
Pintro says that the facts of her case are “essentially the exact” same as those considered
by the D.C. Circuit in Czekalski v. Peters. Id. at 21. In that case, the plaintiff was a member of
the FAA’s Senior Executive Service (SES) who had supervised a staff of hundreds, managed a
budget of at least $400 million, and reported directly to the FAA’s Associate Administrator for
Research and Acquisitions. Czekalski, 475 F.3d at 362, 364–65. This Associate Administrator
then reassigned the plaintiff, memorializing that she had “not performed up to the standards I
expect,” and placing her in charge of “fewer than ten employees” with “little to no budget.” Id.
at 362, 365. Pintro emphasizes that in Czekalski, as here, the plaintiff “did not experience any
loss of salary, grade level, or benefits.” Id. at 364. This is true, but this framing overlooks
Czekalski’s robust factual record of diminished responsibilities. Czekalski stands for the fact that
a loss of salary or grade level is not necessary for an action to be adverse, but Czekalski does not
help show how Pintro’s loss of an organizational title is sufficient on its own to qualify as an
adverse action.
Pintro also argues that her transfer was an adverse action because it “denied [her] the
chance to exercise supervisory responsibilities, gain executive and management experience, and
the opportunity to be part of the management team.” Opp’n at 22. She describes the transfer as
“being assigned to a lower position after 16 years, with an added connotation of less significant
22
responsibilities.” Id. Crucially, however, this characterization of the transfer is supported by
nothing more than citations to Pintro’s own testimony, much of which contradicts the evidentiary
record, and a single citation to Standiford’s testimony, which is also mischaracterized. Id. at 22–
23. Pintro says that Standiford testified “that [Pintro] was reassigned to a non-bargaining unit
(management) position, then she ended up with a bargaining unit position after the transfer
occurred.” Id. at 23. In fact, Standiford said Pintro’s position was “outside the bargaining unit,”
and described it as “a management official position.” MSJ Ex. G at 38–39. Pintro also cites her
own testimony to say that her reassignment “deprived her of her supervisory duties to review the
work of more junior attorneys, which she had done in her prior position.” Opp’n at 23. Pintro
did testify that she “reviewed the work of more junior attorneys,” MSJ Ex. B at 11, but no other
evidence supports this claim. The broader suggestion that Pintro went from a role that was both
managerial and supervisory to one that was neither is contradicted by the OGC position
description forms for the two positions. These indicate that Pintro’s original position in IB was
“Managerial” but not “Supervisory” and that Pintro’s position in PSHSB was also “Managerial”
but not “Supervisory.” Compare MSJ Ex. D at 1, with MSJ Ex. C at 3. The multipage position
descriptions accompanying the OGC form tell a similar story—neither mentions any supervisory
duties. See MSJ Ex. C at 4–11; MSJ Ex. D at 2–6. Despite the memorandum’s contrary
assertions, then, there is no evidence of a downgrade in terms of managerial or supervisory status
beyond Pintro’s own statement in her deposition that she reviewed the work of junior attorneys.
Essentially, in describing the transfer’s effect on her career prospects, Pintro has “failed to
provide any evidence, beyond [her] conclusory assertions of loss of prestige, of any adverse
consequence to [her] position or future career.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.
Cir. 2002) (affirming summary judgment to defendant).
23
Pintro also cites her own deposition testimony for the proposition that she “was unable to
engage in the training opportunities provided to management personnel that she had attended in
the past,” and that she could not advance in her career without “additional experience with
executive and management responsibilities to permit her to obtain a promotion to a position with
the Senior Executive Service (“SES”).” Opp’n at 23 (citing Opp’n Ex. A at 63–65, ECF No. 23-
2). At this point in her testimony, Pintro was describing her concern that if she were placed in a
bargaining unit, non-management position, she would lose access to opportunities that would
help advance her career. Opp’n Ex. A at 63–64. She also cites her own testimony for the
proposition that she was promised a management position but given a non-management position,
but her actual deposition transcript says just the opposite. Opp’n at 23 (citing Opp’n Ex. A at 33
(“The position description, yeah, it still is a management official position description.”)). Again,
this is consistent with Standiford’s testimony. MSJ Ex. G at 38–39. Pintro again compares her
situation to Czekalski when suggesting that her new allegedly non-supervisory duties were
unimportant, Opp’n at 23, but again Pintro overlooks crucial differences between the cases. Ms.
Czekalski was able to point to testimony from her supervisor corroborating the notion that she
was demoted from an important position to an unimportant one and to the fact that her supervisor
said he was reassigning her because of poor performance. See Czekalski, 475 F.3d at 364–65.
Pintro, on the other hand, relies on her own vague and conclusory testimony to characterize and
compare her two positions.
The Court is obligated to resolve all factual disputes in favor of the plaintiff at this stage,
but “‘conclusory allegations’ and ‘unsubstantiated speculation’ do not create genuine issues of
material fact” sufficient to survive summary judgment. Bonieskie, 540 F. Supp. 2d at 200 n.12
(citing Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)). In suggesting that
24
her transfer in June 2016 was an adverse action, Pintro relies almost entirely on self-serving
testimony which is contradicted by the record evidence of her position descriptions. She also
mischaracterizes testimony—including her own—in her briefing. This is not evidence from
which a reasonable jury could conclude that her permanent transfer to PSHSB, Policy and
Licensing had an adverse impact on her professional career. Summary judgment is therefore
appropriate with regard to Pintro’s claim that her transfer in June 2016 was an act of retaliation.
2. Legitimate, Non-Retaliatory Reasons
The lack of an adverse action is enough to defeat this claim, but the Court also notes that
Pintro has also failed to show or even to allege plausibly that “the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for discrimination.” George v. Leavitt,
407 F.3d 405, 411 (D.C. Cir. 2005) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). The FCC argues that “it is undisputed that [Pintro] was given the position she
wanted, and, she admits, the position that that she claims Admiral Simpson promised to her.”
MSJ at 31. This explanation is consistent with the record evidence before the Court, and Pintro
has failed to point to anything beyond her own conclusory and unsubstantiated testimony that
would support her characterization of events.
Pintro repeatedly argues that she was not given the job that was promised to her by
Admiral Simpson, but the relevant testimony does not support this claim. Her briefing quotes
the Complaint and states that “[a]lthough they did not agree to a specific title, Plaintiff and
Admiral Simpson agreed that ‘going forward, her title and responsibilities would be at a
minimum, Senior Legal Advisor.’” Opp’n at 24 (quoting Compl. ¶ 28). Admiral Simpson’s
testimony is inconsistent with this statement. When asked about this exact assertion from the
Complaint at his deposition, Admiral Simpson said, “I don’t see how I could have made that, any
25
kind of commitment like that,” and, “I seem to recall that she wanted a specific title, and I also
seem to recall that I communicated to her that I didn’t have an ability to make a change to [a]
position description.” Opp’n Ex. L at 9, ECF No. 23-13. Pintro also cites to Standiford’s
affidavit as evidence of an agreement, see Opp’n at 24 (citing Opp’n Ex. K at 6), but Standiford
said nothing in her affidavit about any promise from Admiral Simpson, see Opp’n Ex. K.
Pintro’s own testimony and admissions fatally undermine her characterization of events.
Pintro admitted that she does not have and is not aware of any documentation of a promise from
Admiral Simpson that she would have the title of Senior Legal Advisor. RFA No. 10. Pintro
testified that she did not “recall specifically what [Admiral Simpson] said” other than “that [she]
would not be demoted as a result of accepting a transfer.” MSJ Ex. B at 23. As the Court’s
above comparison of position descriptions makes clear, there is no evidence that any demotion
took place. She also testified that, during their discussions in late 2015 and early 2015, Admiral
Simpson handed her a copy of a position description which matched the position description that
would be attached to the Notice of Personnel Action that effectuated her transfer in June 2016.
Id. at 47–49 (discussing MSJ Ex. C (Pintro Dep. Ex. 11)). In other words, her own testimony
was that the position she was transferred into was the one she discussed with Admiral Simpson.
This is hardly suggestive of pretext. There would have been no need for the Agency to
lie about its motives, because Pintro was being transferred to the position she had expressed an
interest in, located in the department where she had been working for six months. Pintro has
failed to put forward evidence suggesting that the Agency’s stated reasons for transferring her
are pretextual, and has not even explained what she believes transpired in a manner consistent
with the evidence. Summary judgment is therefore also appropriate on this alternative ground
that the agency’s legitimate non-retaliatory reasons have not been rebutted.
26
C. Interference with Employment
Pintro’s third claim is that she was retaliated against when OGC “interfered with [her]
employment opportunities and progression and impugned her reputation.” Compl. ¶ 38. Pintro
claims that OGC did this at two points: first “when it required one of Pintro’s managers to report
on her performance every two months;” and again when it “contacted Pintro’s supervisor,
Nakazawa, and informed him that Pintro had an EEO case pending in federal court and asked
him if Pintro requested to telework on the day she gave a deposition in August 2016 in her case
pending in federal court.” Compl. ¶ 38. The Agency does not dispute that OGC and PSHSB did
communicate about Pintro and that OGC did reach out to Pintro’s supervisor Mr. Nakazawa, but
the Agency maintains that these communications were not for the purpose of monitoring Pintro.
MSJ at 35–36. The Agency argues that neither of these communications was an adverse action
under Title VII, and that there were legitimate, non-retaliatory reasons for each communication.
MSJ at 37–39.
1. Adverse Action
As discussed in Part B, above, even though a plaintiff does not need to establish each and
every element of a prima facie case in order to defend against a motion for summary judgment,
she still must show that she “has suffered an adverse employment action.” Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). To establish an adverse action in the
context of a retaliation claim “a plaintiff must show that a reasonable employee would have
found the challenged action materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68 (quotations omitted). An employee that has
reported discriminatory behavior is protected from materially adverse actions that “produces
27
injury or harm,” not “petty slights or minor annoyances.” Id. at 67–68. Of course, even if a
plaintiff has suffered an adverse action, his employer is still entitled to summary judgment if it
can “assert[] a legitimate, nondiscriminatory reason for [the] adverse employment action,” and if
the plaintiff fails to produce “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 plaintiff on a prohibited basis.” Adeyemi v. District of Columbia, 525
F.3d 1222, 1226 (D.C. Cir. 2008).
a. OGC Monitoring
Pintro alleges that OGC was monitoring her performance in a manner “not uniformly
applied across the workforce” or consistent with normal agency procedure and, thus, that it was
an adverse action. Aldrich v. Burwell, 197 F. Supp. 3d 124, 132 (D.D.C. 2016); Opp’n at 27-29.
Monitoring an employee’s activity or whereabouts is not generally a materially adverse action.
See Aldrich, 197 F. Supp. 3d at 132 (“[C]ourts . . . are near unanimous in concluding that close
scrutiny, monitoring, or tracking of an employee’s whereabouts—without more—simply does
not rise to the level of a materially adverse retaliatory action sufficient to survive a motion to
dismiss.”). In instances where monitoring has been found to be an adverse action, it is when the
“monitoring is so extreme and intrusive as to constitute harassment in its own right,” or when it
“is not uniformly applied across the workforce” and has caused a specific injury or harm. Id. at
133–34 (collecting out-of-Circuit cases). Nonetheless, even disparate monitoring is not
necessarily enough on its own to qualify as an adverse action. This Court has noted that “[a]
‘petty slight’ is still a ‘petty slight,’ even if that slight is disparately applied.” Id. at 134
(collecting cases in which closer scrutiny of an employee, without more, did not constitute an
adverse action).
28
The monitoring Pintro alleges is not an adverse action because she has not presented
evidence sufficient for a jury to find that she was monitored in a way that was at all atypical or
harmful in such a manner that would dissuade a reasonable worker from making or supporting a
charge of discrimination. Pintro alleges that her managers were required “to report on her
performance every two months,” and specifically states that OGC attorneys Launer and
Standiford required Kravetz, the Chief of Staff for PSHSB and Pintro’s direct supervisor at CCR,
to “periodically” report on Pintro’s activity. Compl. ¶ 38; MSJ Ex. B at 33–34; MSJ Ex. K at 2.
Pintro bases this allegation on several pieces of evidence, including a statement made by Kravetz
in her affidavit regarding her knowledge of Pintro’s potential permanent transfer from IB to the
PSHSB. MSJ Ex. B at 34; MSJ Ex. K at 3. This is a mischaracterization of Kravetz’s testimony.
Kravetz testified that while Pintro’s potential reassignment was being worked out, she “generally
spoke with Ms. Standiford every couple months, and if [Standiford] was not available, with Ms.
Launer.” MSJ Ex. K at 3. There is no indication at all from this testimony that Kravetz was
periodically reporting back to OGC, as opposed to simply talking to OGC once a while, as
needed. Pintro also points to “Sarah Van Valzah’s reaction” when Pintro emailed Van Valzah to
ask why she was being detailed to PSHSB again instead of being moved there permanently.
MSJ Ex. B at 36. Van Valzah directed Pintro to “check with OGC.” Id. This does not suggest
monitoring. Finally, Pintro points to the email from Nakazawa that indicated OGC had
contacted him about Pintro’s August 2016 deposition, which is addressed separately below. Id.
In an attempt to demonstrate that the monitoring she alleges was not normal agency
procedure, Pintro points to Admiral Simpson’s testimony that the contact between OGC and
Kravetz was “surprising.” Opp’n at 28; MSJ Ex. A at 5. Pintro says this “demonstrates that [the
Agency] was not acting in the course of their usual conduct.” Opp’n at 28. However, as the
29
FCC points out in its reply, Admiral Simpson’s statement was that “[he] would be surprised . . .
[to] find out that someone outside the [PSHSB] was monitoring her performance,” not that there
was actual monitoring of Pintro’s performance that he found surprising. Reply in Supp. of Def.’s
Mot. for Summ. J. at 20, ECF No. 24 (emphasis added); MSJ Ex. T at 10, Dep. of Admiral David
G. Simpson, ECF No. 20-21. This was a response to a hypothetical. In reality, Admiral
Simpson testified that he was not aware of any efforts by OGC to monitor Pintro’s performance.
MSJ Ex. T at 10. Contrary to Pintro’s contention, Admiral Simpson’s testimony does not
“demonstrate that [the Agency] was not acting in the course of their usual conduct.” Opp’n at
28. Nowhere does Pintro establish normal agency policy regarding monitoring employees
involved in ongoing settlement discussions, much less that OGC was not following that policy.
Pintro has not demonstrated that OGC was monitoring her to such a degree that would
allow a reasonable juror to conclude this was an adverse action. Even assuming that she
presented sufficient evidence for a jury to believe her version of the facts, she has nonetheless
failed to demonstrate how “a reasonable juror could find that [she] suffered an adverse action.”
Czekalski, 475 F.3d at 365. Pintro presents no case law supporting the notion that the level of
monitoring she describes can be considered adverse. See Opp’n at 27–29. Pintro states that “her
life was made worse” as a result of this monitoring but her only support for this conclusory
statement is the allegation that OGC held up the transfer that Admiral Simpson had promised
her. MSJ Ex. B at 34–35, see Opp’n at 27–29. As previously explained, the record evidence
does not support Pintro’s account of her conversations with Admiral Simpson.
b. Contacting Nakazawa
Pintro also points to the fact that OGC notified Nakazawa of her August 2016 deposition
as an adverse action against her. Compl. ¶ 38. As with her allegation of monitoring, Pintro
30
points to no case law suggesting that, on its own, OGC notifying Nakazawa of her deposition or
her whereabouts can be considered a materially adverse action. See Opp’n at 27–29. Pintro does
correctly point out that the D.C. Circuit held, in Lathram v. Snow, that when an employer
violates its own policies to conduct an adverse action, this violation raises an inference of
pretext. 336 F.3d 1085, 1093 (D.C. Cir. 2003) (inconsistency in the Agency’s process can show
discriminatory motive). Opp’n at 27. However, Pintro has shown neither that OGC’s actions
were adverse nor that the Agency violated a standard procedure by contacting Nakazawa.
Nor does Pintro explain how she was injured by OGC reaching out to Nakazawa about
her deposition. She states that OGC’s collective actions toward her, including the email to
Nakazawa, “stymied” her “professional progression” and “ruin[ed] her reputation.” Compl. ¶
38; Opp’n at 29. However, Pintro admits that no actions were taken by Nakazawa as a result of
his learning about her deposition and she identifies no evidence of harm she suffered because of
this communication from OGC. MSJ Ex. B at 62, see Compl. This Court, and the D.C. Circuit
have each rejected harms that are notably more concrete than this phone call as insufficient bases
for Title VII suits. See, e.g., Bridgeforth v. Jewell, 721 F.3d 661, 665 (D.C. Cir. 2013) (rejecting
the failure of U.S. Parks Service supervisors to nominate a police officer for awards as too
speculative to support a retaliation claim); Wilson v. Mabus, 65 F. Supp. 3d 127, 134 (D.D.C.
2014) (holding that an employee who did not receive a shift change that his supervisor had
recommended lacked a retaliation claim because this did not “result in any objectively tangible
harm”); see also Forkkio, 306 F.3d at 1132 (holding that the placement of a particular manager
as employee’s supervisor and that manager’s “alleged undermining of [the employee’s
authority]” were not adverse actions because while “[the manager’s] supervision of [the
employee] may have caused him subjective injury, . . . it did not objectively harm his working
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conditions or future employment prospects”). In short, “purely subjective injuries, such as
dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse
actions,” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quotations omitted), and
Pintro has not even explained how Standiford’s call injured her subjectively.
Pintro also does not explain how a reasonable juror could find that the communication
from OGC to Nakazawa was adverse to her. In fact, Pintro herself quotes Standiford’s testimony
that “it never occurred to [her] that Ms. Johnson was asking [her] to do anything out of the
ordinary.” Opp’n at 30 (quoting MSJ Ex. I at 9). Pintro seems to suggest that the burden is on
the Agency “to cite [an] Agency policy or any other instances where OGC monitored an
employee or discussed an employee taking time off for an EEO deposition with an employee’s
supervisors.” Id. at 29. However, since Pintro has not established how, if at all, this
communication was an adverse action, the burden has not shifted back to the Agency to defend
itself in the way Pintro suggests.
2. Legitimate, Non-Retaliatory Reasons
Pintro’s failure to explain how she suffered an adverse action is enough to warrant
summary judgment for the FCC on this claim, but this claim also fails because she has not shown
that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext
for discrimination.” See George, 407 F.3d at 41 (quoting Tex. Dep’t Cmty. Affairs, 450 U.S. at
253). The FCC explains that “OGC’s contacts with [Pintro]’s supervisors were a result of the
Agency earnestly engaging in settlement negotiations with [Pintro]. . . and following the legal
advice of the . . . AUSA representing the Agency in [Pintro]’s first lawsuit.” MSJ at 3. This
explanation is consistent with the record evidence before the Court, and Pintro has again failed to
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point to anything beyond her own conclusory and unsubstantiated testimony that would support
her characterization of events.
a. OGC Monitoring
Pintro’s claim that OGC “required one of [her] managers to report on her performance
every two months,” Compl. ¶ 38, is based partially on Kravetz’s statement that she “generally
spoke with Ms. Standiford every couple months, and if she was not available, with Ms. Launer”
about Pintro’s potential reassignment as part of the settlement discussions between the Agency
and Pintro. MSJ Ex. K at 3. Kravetz’s statements do not suggest that this communication was
mandated by OGC or that it occurred on any type of regular schedule, as Pintro seems to suggest.
Rather, both Standiford’s deposition and Kravetz’s affidavit state that these conversations were
only for the purpose of discussing Pintro’s potential reassignment, which was an aspect of
Pintro’s ongoing settlement discussions. MSJ Ex. G at 16–17; MSJ Ex. K at 3. Additionally,
Pintro points to the email sent to her from Van Valzah, in which Van Valzah states that “it is
[her] understanding that a reassignment action is currently a component of a settlement offer in
your pending litigation; accordingly discussion related to the reassignment should occur between
your counsel and the AUSA.” MSJ Ex. L at 1. This communication does not suggest that Pintro
was being regularly monitored contrary to agency policy. Rather it explains that OGC was
involved in her reassignment because of the ongoing settlement discussions. To the extent that
any monitoring occurred, then, the Agency has produced unrebutted evidence of legitimate
reasons why OGC was paying attention to Pintro—they were in the process of negotiating a
settlement with her that concerned a transfer involving the organization with which they
communicated. There is no evidence that this was pretextual.
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The agency’s explanations are consistent with the evidence presented. The Agency
explains that “OGC is routinely required to discuss ongoing litigation with employees’ managers
in order to gather information to adequately defend the Agency and to discuss whether settlement
proposals are feasible” and that this communication was “legitimate conduct[] in the course of
preparing the Agency’s defenses and in the context of settlement negotiations.” MSJ at 35. In
response Pintro cites no evidence suggesting pretext, but only argues that “[d]efendant fails to
cite any Agency policy or any other instances where OGC monitored an employee.” Opp’n at
29. She errs in suggesting that the Agency has the legal burden to explain its actions in this
much detail. Pintro incorrectly suggests that she does not have a burden as the plaintiff to
produce evidence supporting the pretextual nature of the agency’s actions in response to the
agency’s evidence of their actions being legitimate and non-retaliatory. Id. at 29–30. In fact,
Pintro has the burden of responding to these legitimate, non-retaliatory explanations for their
actions with evidence that would allow a reasonable jury to find that the employer’s stated
reasons were not the actual reason for their actions. Walker, 798 F.3d at 1092. Pintro has failed
to put forward evidence suggesting such pretext.
b. Contacting Nakazawa
Pintro’s suggestion that there were no legitimate reasons for OGC to reach out to
Nakazawa the day before her deposition is similarly not supported by the evidence. Pintro
claims that there was no legitimate non-pretextual reason for Standiford to reach out to
Nakazawa because doing so was not routine agency policy. Opp’n at 30. In so arguing, Pintro
notes Standiford’s statement that “she was merely relying on the advice of AUSA Johnson and
that ‘it never occurred to [her] that Ms. Johnson was asking [her] to do anything out of the
ordinary in contacting Ms. Pintro’s supervisor.’” Id. This is not “evidence that this was not a
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routine procedure,” as Pintro states, id., but in fact is quite the opposite, as it suggests there was
nothing unusual about the request from the AUSA who was responsible for the litigation in
court. Standiford explained that “it never occurred to [her] that PSHSB would not have known
about [Pintro’s] pending EEO case” and that “[AUSA Johnson] told Ms. Pintro it was her
practice to advise the employee’s supervisor that the employee did not have to take leave to
participate in [a] deposition.” MSJ Ex. I at 9. 4 Pintro, who cites nothing but Standiford’s
deposition on this issue, has failed to refute this legitimate and non-discriminatory explanation of
why OGC would reach out to her supervisor.
Standiford’s testimony that she reached out to PSHSB at AUSA Johnson’s request is
unrebutted and inconsistent with Pintro’s broader allegations of retaliation because, if Standiford
only reached out at the request of the U.S. Attorney’s Office, this is weak evidence of a
retaliatory motive originating at OGC. Even if OGC were meddling with Pintro’s employment
and supervision because they were unhappy with her first lawsuit, this phone call would not be
evidence of such a plan because there is no dispute that it was instigated by AUSA Johnson, not
on Standiford’s own initiative. Nor would it make sense to suggest that AUSA Johnson was
participating in the retaliatory scheme — she had been striving to settle the lawsuit for the better
4
AUSA Johnson’s concerns in this regard were well-founded. EEOC regulations dictate
that complainant employees “shall have a reasonable amount of official time” to pursue their
complaints.” 29 C.F.R. § 1614.605(b). The failure of an agency to abide by this regulation can
be the basis for a retaliation claim, either in administrative proceedings or in federal court. E.g.
Yonemoto v. McDonald, 114 F. Supp. 3d 1067, 1092–93 (D. Haw. 2015); Celest P. v. U.S. Postal
Serv., EEOC Appeal No. 120181407 (June 20, 2019), 2019 WL 2724726 at *6–*7. “[T]here is
no express provision in Title VII or its regulations granting an employee the right to
administrative leave for judicial proceedings,” Moore v. Summers, 113 F. Supp. 2d 5, 28 (D.D.C.
2000) (quoting Shelborne v. Runyan, No. Civ. A 94-0641, 1997 WL 527352, at *16), but,
nonetheless, the denial of such leave can lead to further litigation which AUSA Johnson would
have every reason to try to avoid even if the government would likely prevail. See Wiley v.
Glassman, 511 F.3d 151, 158–59 (D.C. Cir. 2007); Moore, 113 F. Supp. 2d at 28–29.
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part of a year and would have had no reason fuel further litigation against her client agency by
encouraging OGC to retaliate against and mistreat Pintro.
Pintro again here presents no evidence or case law suggesting that the OGC’s actions
were taken for pretextual reasons, despite her burden to do so. See Opp’n at 29–30; Walker, 798
F.3d at 1092. Summary judgment is therefore appropriate on this claim because she does not
rebutt the Agency’s legitimate non-retaliatory reasons for their actions in a manner that would
allow a reasonable jury to find pretext.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: November 15, 2019 RUDOLPH CONTRERAS
United States District Judge
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