Varnado v. Save the Children ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M. ISABEL VARNADO,
Plaintiff,
v. Case No. 1:18-cv-00752 (TNM)
SAVE THE CHILDREN,
Defendant.
MEMORANDUM OPINION
M. Isabel Varnado has sued her former employer, Save the Children, alleging a hostile
work environment and racial discrimination. Save the Children now moves for summary
judgment. For the following reasons, the Court will grant its motion.
I.
As the Court must at this stage, it sets out the facts and inferences in the light most
favorable to the Plaintiff. McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006).
Save the Children is a non-governmental organization that provides relief and support to
children around the world. Def.’s Statement of Undisputed Material Facts (“DMF”), ECF No.
21-2 ¶ 1; Pl.’s Resp. Mot. in Opp. (“Pl.’s Mot.”), ECF No. 24 at 1. 1 Within Save the Children,
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The Court notes that Ms. Varnado did not file a proper statement of material facts in dispute
under Local Civil Rule 7(h). In her Opposition, she states that she “summarily dispute[s]”
Paragraphs 40–243 of the Defendant’s Statement of Material Undisputed Facts. Pl.’s Mot. at 13.
But that is not enough. A plaintiff “may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jackson v. Finnegan, 101
F.3d 145, 154 (D.C. Cir. 1996). Rule 7(h) requires that “[a]n opposition to motion shall be
accompanied by a separate concise statement of genuine issues setting forth all material facts as
to which it is contended there exists a genuine issue necessary to be litigated, which shall include
references to the parts of the record relied on to support the statement.”
U.S. Programs Finance (“USP Finance”) is responsible for managing (1) grants from outside
donors and (2) sub-award contracts with schools and community programs. DMF ¶ 6, Pl.’s Mot.
at 12.
Save the Children hired Ms. Varnado, who is African American, to be an Associate
Director of Financial and Sub-Award Management within USP Finance. Pl.’s Mot. at 3, 5.
During her first performance review, Ms. Varnado received positive feedback from her
supervisor, Juliana Brannan. Id. at 2. The next month, a finance manager on Ms. Varnado’s
team gave notice, and Save the Children tried to hire someone temporarily to cover that
manager’s immediate responsibilities. Pl.’s Mot. at 5. When that proved difficult, Ms. Varnado
offered to take on the role to learn more about it, and she moved to Lexington, Kentucky, to do
so. Id. Upon arrival, she received training from another finance manager about the role. Id.
Even in Ms. Varnado’s telling, this arrangement was not a happy one. First, Ms. Varnado
was late to a conference call about her finance manager responsibilities. Id. Then, she had
issues using a risk assessment tool. Id. More, she claims that she was not properly trained for
her role as a finance manager. Id. at 6. Ultimately Save the Children fired her. Id at 6.
After receiving her Notice of Right to Sue Letter from the EEOC, Ms. Varnado,
proceeding pro se, sued Save the Children. Compl. at 2. She claims that Save the Children (1)
subjected her to a hostile work environment and (2) racially discriminated against her when it
fired her. See generally Compl. at 2.
II.
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).
2
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 Corp v. Catrett,
477 U.S. 317, 323 (1986). Once the movant makes this showing, 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.
“A document filed pro se is to be liberally construed.” Abdelfattah v. U.S. Dep’t of
Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). When a pro se plaintiff brings an action, a district court has an obligation “to consider
his filings as a whole before dismissing a complaint,” Schnitzler v. United States, 761 F.3d 33,
38 (D.C. Cir. 2014), because such complaints are held “to less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
III.
A.
According to Ms. Varnado, she was subjected to a hostile work environment at Save the
Children. Pl.’s Mot. at 6. To support this claim, she points to three specific conversations with
her supervisor, Ms. Brannan:
• When Ms. Brannan met Ms. Varnado for the first time, Ms. Brannan remarked
“you’re not at all like I pictured.” Id.
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• Ms. Varnado once told Ms. Brannan that she was afraid of a truck that she saw
flying confederate flags in West Virginia. Id. In response, Ms. Brannan told her
that she had no reason to be afraid in West Virginia, but she—Ms. Brannan—
would have reason to be afraid if she was in Los Angeles or Detroit. Id.
• In a conversation including another co-worker, Ms. Brannan told Ms. Varnado
that Ms. Varnado would be the only one that agreed that the Washington Redskins
had an inappropriate mascot. Id. She told Ms. Varnado that she did not
understand why people needed to be so politically correct. Id.
To prevail on a hostile work environment claim, a plaintiff must show that her employer
subjected her 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (cleaned up); see also Baloch
v. Kempthrone, 550 F.3d 1191, 1201 (D.C. Cir. 2008). The Court considers “the totality of the
circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work performance.” Brooks v.
Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). The Court assesses “the timeline of events
as a whole,” to determine whether, in totality, the facts may plausibly support a conclusion that
the employer “alter[ed] the conditions of [her] employment and create[d] an abusive working
environment.” Id. (cleaned up).
“Severity and pervasiveness are complementary factors and often go hand-in-hand, but a
hostile work environment claim could be satisfied with one or the other.” Id. But here Ms.
Varnado has shown neither. Although insensitive, none of the three comments meets the high
bar of “severe” or “offensive” conduct that might create an objectively abusive environment.
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See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[C]onduct must be extreme to
amount to a change in the terms and conditions of employment.”).
Caselaw from this Circuit supports this conclusion. For example, in George v. Leavitt,
the plaintiff brought a hostile work environment claim, citing confrontations with her co-workers
and alleging that she was told to “go back where she came from” multiple times. 407 F.3d 405,
416–17 (D.C. Cir. 2005). The D.C. Circuit found that, even taking the plaintiff’s allegations as
true, a reasonable jury could not conclude that her workplace was “permeated with
discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter
the conditions of her employment and create an abusive working environment.” Id. at 416
(cleaned up). According to the Circuit, the facts as alleged by the plaintiff were “exactly the sort
of ‘isolated incidents’ that the Supreme Court has held cannot form the basis for a Title VII
violation.” Id. at 416–17 (cleaned up). See also Badibanga v. Howard Univ. Hosp., 679 F.
Supp. 2d 99, 104 (D.D.C. 2010) (dismissing hostile work environment claim where plaintiff’s
accent was criticized, he was told he was easy to replace with an American and that his
supervisor would not hire other Africans); Singh v. U.S. House of Reps., 300 F. Supp. 2d 48, 54–
57 (D.D.C. 2004) (holding employer’s treatment of employee did not amount to hostile work
environment where employee was humiliated during meetings, screamed at and told to “shut up
and sit down,” and treated in manner that was “constantly hostile and hypercritical”).
Ms. Varnado also claims that she was “continuously subjected to . . . racially insensitive
comments . . . by Juliana Brannan.” See Compl. at 2. But that statement is too vague and
conclusory to contribute meaningfully to her claim, and she offers no evidence to support it. See
Brady v. Livingood, 456 F. Supp. 2d 1, 11 (D.D.C. 2006) (dismissing hostile work environment
claim where plaintiff alleged only “[v]ague, conclusory statements”) (citation omitted), aff’d sub
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nom. Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). So the Court will not
consider it.
The three conversations that Ms. Varnado does identify, evaluated as a whole, were no
doubt awkward and unpleasant, but they do not support a conclusion that her employer subjected
her to “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of [her] employment and create an abusive working environment.” Baloch,
550 F.3d at 1201.
B.
The Court analyzes Ms. Varnado’s racial discrimination claim using the familiar
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this formula, an employee must first make out a prima facie case of
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The
employer must then come forward with a legitimate, nondiscriminatory reason for the challenged
action. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981). If the
employer meets this burden, the McDonnell Douglas framework falls away, and the factfinder
must decide the ultimate question: whether the employee has proven intentional discrimination.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–12 (1993). The employee can survive
summary judgment by providing enough evidence for a reasonable jury to find that the
employer’s proffered explanation was a pretext for discrimination. Brady, 520 F.3d at 494.
When the employer properly presents a legitimate, nondiscriminatory reason, the Court
“need not—and should not—decide whether the plaintiff actually made out a prima facie case”
because it should focus only on the third prong of McDonnell Douglas. Id. But the D.C. Circuit
recently held that “the Brady shortcut applies only if the parties properly move past the second
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step.” See Figueroa v. Pompeo, — F.3d —, No. 18-5064, 2019 WL 2063562, at *5 (D.C. Cir.
May 10, 2019). That is, a court must be careful not to relieve the employer of its burden “to
articulate a legitimate, nondiscriminatory reason for its action.” Wheeler v. Georgetown Univ.
Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016).
So the first question is whether Save the Children has offered “a legitimate,
nondiscriminatory reason” for firing Ms. Varnado. According to Save the Children, it fired her
because despite the training and support it gave her, she was not meeting its expectations for an
Associate Director. Def.’s Mot. for Summ. J. (“Def.’s Mot.), ECF No. 21-1 at 6. Specifically, it
alleges that Ms. Varnado “showed a lack of understanding of the sub-award process and basic
[Generally Accepted Accounting] principles by reversing debit and credit entries in the Agresso 2
system, failing to attach back up documentation to her Agresso entries, failing to correctly
complete risk assessments, and continuing to ask her subordinates for guidance although Ms.
Brannan had directed that Plaintiff direct her questions to Ms. Brannan.” Id. at 6–7.
Applying Figueroa’s four factors, the Court finds that Save the Children has articulated a
legitimate, nondiscriminatory reason for the termination. First, Save the Children has produced
evidence—to support its claim—that a factfinder could consider at trial: testimony from both Ms.
Brannan and Ms. Varnado about Ms. Varnado’s job performance. Figueroa, 2019 WL 2063562
at *5. Second, if a factfinder credited Save the Children’s evidence, it could reasonably find that
Save the Children’s action was motivated by a nondiscriminatory reason. Id. That is, if a jury
believed that Ms. Varnado had made these mistakes, then it could reasonably find that Save the
Children was not motivated by a discriminatory reason.
2
Agresso is the commercially available accounting system that Save the Children uses. See
DMF ¶ 53.
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Third, Save the Children’s explanation is legitimate. Id. Save the Children’s proffered
reason is facially credible given this record. See Bishopp v. District of Columbia, 788 F.2d 781,
788 (D.C. Cir. 1986). Ms. Varnado does not materially dispute the performance problems that
Save the Children identifies. For example, Ms. Varnado does not dispute that she completed a
risk assessment incorrectly. She only argues that she “fixed issues when raised by Ms.
Brannan.” Pl.’s Mot. at 5.
Finally, Save the Children has produced a “clear and reasonably specific explanation.”
Figueroa, 2019 WL 2063562 at *6. Ms. Varnado had a “full and fair opportunity” to attack Save
the Children’s explanation as pretextual. Id. She could have produced evidence that she did not
reverse debit and credit entries in the Agresso system or that she did attach back up
documentation to her Agresso entries. She could have insisted that she correctly completed the
relevant risk assessments or contested Save the Children’s claim that she asked her subordinates
for guidance even after Ms. Brannon told her to ask only her questions. But she has not done so.
In sum, Save the Children has proffered admissible evidence showing a legitimate,
nondiscriminatory, clear, and reasonably specific explanation for its actions. Its evidence raises
a triable issue of fact about intentional discrimination and provides Ms. Varnado with a full and
fair opportunity for rebuttal.
The Court now turns to the third prong of McDonnell Douglas, which considers whether
Ms. Varnado has produced enough evidence to support a finding that her employer’s asserted
nondiscriminatory reason was pretextual and that Save the Children intentionally discriminated
against her based on her race.
To show that an employer’s stated reasons were pretextual, plaintiffs may offer many
types of evidence, including “the employer’s better treatment of similarly situated employees
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outside the plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation
from established procedures or criteria, the employer’s pattern of poor treatment of other
employees in the same protected group as the plaintiff, or other relevant evidence that a jury
could reasonably conclude evinces an illicit motive.” Walker v. Johnson, 798 F.3d 1085, 1092
(D.C. Cir. 2015).
Ms. Varnado first argues that she was qualified for her job, citing her own professional
qualifications and the relevant job description. Pl.’s Mot. at 9. But Save the Children does not
claim that Ms. Varnado was unqualified. It claims that it fired her because it believed that she
did not understand the sub-award process and basic accounting principles. Def.’s Mot. at 6.
Save the Children, in fact, probably agrees that she appeared qualified for the job, and that’s why
it hired her.
According to Ms. Varnado, she did not have enough training for the sub-award portfolio
daily management tasks or with the Agresso technology. Pl.’s Mot. at 9. This argument also
fails. True, she may have been able to improve given more training or time. But that fact does
not mean that Save the Children is lying about why it fired her. Ms. Varnado suggests that Save
the Children overreacted and adopted a hair-triggered approach to her mistakes. But “[c]ourts
are generally less competent than employers to restructure business practices, and unless
mandated to do so by Congress they should not attempt it.” Brady, 520 F.3d at 496 (cleaned up).
The question is not whether Ms. Varnado could be a successful Associate Director.
Rather, it is whether Save the Children “honestly and reasonably believed” that she did not
understand the sub-award process and basic accounting principles. See id. Although Ms.
Varnado claims that her termination was racially tainted and that she was fired prematurely, she
produces no evidence that her employer’s decision was dishonest.
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Ms. Varnado also points to Ms. Brannan’s three comments, discussed above, to show
discriminatory motive. To be sure, race-based comments are material to the issue of pretext. See
Morris v. McCarthy, 825 F.3d 658, 670 (D.C. Cir. 2016). But it is not obvious that Ms.
Brannan’s comments—however awkward—reveal any racial animus. See Hairston v. Vance-
Cooks, 773 F.3d 266, 274 (D.C. Cir. 2014) (declining to infer racial animus when statements
were “neither explicitly racial nor infused with racial undertones based on common usage”).
For instance, when Ms. Brannan told Ms. Varnado “you’re not at all like I pictured,” it is
not clear what she had expected Ms. Varnado to look like or that it was a bad thing that she
appeared different than Ms. Brannan expected. 3 And Ms. Brannan’s statements about the
Washington Redskins could have been referring to Ms. Varnado’s political views, not her race.
As for the conversation about whether Ms. Varnado should fear a truck with a confederate flag,
Ms. Brannan told her that she should not be afraid. And Ms. Brannan’s statement, while
insensitive, does not necessarily reveal personal animus against African Americans. These
comments fall short of showing any discriminatory motive.
In any event, the D.C. Circuit has affirmed grants of summary judgment to employers
despite obviously racially charged statements. See, e.g., Hampton v. Vilsack, 685 F.3d 1096,
1101 (D.C. Cir. 2012) (affirming a grant of summary judgment even though first-line supervisor
described the plaintiff using a derogatory racial slur); Waterhouse v. District of Columbia, 298
F.3d 989, 996–97 (D.C. Cir. 2002) (affirming a grant of summary judgment even though a
supervisor said that the office had “too many white managers”).
3
For instance, Ms. Brannan could have been remarking on Ms. Varnado’s height. See Varnado
Dep., ECF 21-4 at 102 (explaining that she responded to Ms. Brannan’s comment by saying “I
know, I’m 6’1 and brown. My voice definitely doesn’t indicate that.”).
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But even if Ms. Brannan’s statements were about Ms. Varnado’s race, “an isolated race-
based remark unrelated to the relevant employment decision [does] not, without more, permit a
jury to infer discrimination.” See Morris, 825 F.3d at 669. Here, none of the comments that Ms.
Varnado has identified have anything to do with her employment, her professional qualifications,
or her job performance. 4
Ms. Varnado has not put forward enough evidence for a reasonable jury to find that her
employer’s legitimate, nondiscriminatory reason was not the actual reason for her termination
and that her employer actually discriminated against her based on her race. 5
IV.
For these reasons, the Defendant’s Motion for Summary Judgment will be granted. A
separate order will issue.
2019.05.21
11:59:32 -04'00'
Dated: May 21, 2019 TREVOR N. McFADDEN, U.S.D.J.
4
In a deposition, Ms. Varnado suggested that white employees were treated better than she. See,
e.g., Varnado Dep. at 115. In her Opposition, she claims, without citation or further explanation,
that she “was not allowed to conduct discovery on this particular issue.” Pl.’s Mot. at 7. The
Court, however, did not restrict the scope of discovery, and Ms. Varnado could have conducted
discovery to support this claim. In any event, she does not argue disparate treatment in her
briefing, so the Court has not considered it. See, e.g., Bamdad v. Drug Enf’t Admin., 617 F.
App’x 7, 9 (D.C. Cir. 2015) (“There is a difference between liberally construing ambiguities in
pro se plaintiffs’ complaints . . . and completely rewriting portions of the complaint.” (citation
omitted)).
5
Save the Children emphasizes that Ms. Brannan hired Ms. Varnado less than a year before
deciding to fire her. Def.’s Mot. at 14. The D.C. Circuit has said “when the person who made
the decision to fire was the same person who made the decision to hire, it is difficult to impute to
that person an invidious motivation that would be inconsistent with the decision to hire,
especially when the firing has occurred only a short time after the hiring.” Vatel v. Alliance of
Auto Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011) (cleaned up). Given the potential that Ms.
Brannan did not know that Ms. Varnado was African American at the time of hiring, see Pl.’s
Mot. at 6 (“You’re not at all like I pictured.”), the Court will not rely on the “same actor”
inference.
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