By Marjorie Johnson, J.D.
The district court erred in ruling it was “extremely unlikely” evidence of more lenient treatment could raise a triable issue over pretext.
A district court erred in granting the Department of Homeland Security’s motion for summary judgment on an employee’s Title VII discrimination claims since it improperly denied her bid to first seek discovery of comparator evidence to support her pretext showing. She also sufficiently demonstrated she was reassigned to a different branch because she complained that her initial placement on detail was discriminatory and thus the lower court also erred in tossing that aspect of her retaliation claim, the D.C. Circuit ruled, reversing in part and remanding for further proceedings (Cruz v. McAleenan, July 30, 2019, Wilkins, R.).
Accused of interpersonal issues. Since 2007, the employee served as DHS’s Chief Information Security Officer (CISO) at the FEMA’s Office of the Chief Information Officer (OCIO). In January 2012, a white male colleague advised the OCIO director that the employee had behaved inappropriately during three meetings. The director (a white woman) asked the employee’s supervisor (also a white woman) to investigate.
HR investigation. The supervisor sought HR’s assistance in the matter, including in determining if a reassignment to a position with limited supervisory duties was warranted. An HR specialist began a limited “administrative inquiry” over the next few weeks and found a general consensus that the employee behaved unprofessionally at recent meetings, was “often abrasive, rude, yells, and is condescending,” and that her subordinates were too afraid to speak up in her presence. The HR specialist thus found that a reassignment and a written warning would be appropriate.
Reassigned within branch. On March 14, the employee received her supervisor’s written warning and was notified that she was to be detailed to a position with DHS Headquarters for 90 days. In response, she sought counseling from FEMA’s EEO office. About two weeks later, her supervisor disseminated an organizational chart showing the employee as Deputy CISO and the reassignment, which did not affect her paygrade, became effective on April 8.
After complaints, placed outside branch. On June 6, she filed a formal complaint with FEMA alleging discrimination based on her race, color, national origin, and sex. DHS extended her detail for several more weeks and on October she was notified that she was being reassigned to the role of Chief of the Resource Management Branch within the OCIO. She objected, believing she was not qualified for the job, but HR found otherwise.
Discovery of comparators. Reversing summary judgment on her bias claims, the D.C. Circuit held that the district court erroneously found the comparator evidence she sought to discover could not create a triable issue as to whether the agency’s proffered reasons for its adverse actions—unprofessional and inappropriate conduct—were pretextual. Specifically, she sought discovery regarding the conduct of the director and supervisor toward “Black employees, female employees, and employees who had engaged in protected activity” versus their conduct toward those outside the protected classes. She claimed such evidence could show she was treated less favorably than similarly situated white and non-African male employees when she was removed from her CISO position, placed on detail to DHS’s headquarters, and demoted to deputy CISO.
Though the district found it “extremely unlikely” that evidence of more lenient treatment could raise a triable issue over pretext, the D.C. Circuit disagreed. Evidence that white or male employees were disciplined less severely for the same behavior could suggest FEMA’s justification was a pretext for discrimination. The lower court also erred in ruling that the evidence would be irrelevant because of the “strong evidence” that the DHS’s actions were independent of the employee’s protected characteristics. Even if the HR report was truly independent, the comparator evidence would still be material to the issue of pretext and the appeals court had never held that the existence of an independent investigation was dispositive.
Removal to other branch could be retaliation. Summary judgment was also inappropriate with respect to the employee’s claim that her reassignment to the Resource Management Branch was retaliatory. While the district court concluded that all of the allegedly retaliatory acts were “foreordained by the initial disciplinary decision,” it could be reasonably inferred that the decision to reassign her outside the information security field was distinct from the initial action. Indeed, DHS initially contemplated she would take a 90-day detail followed by her return as deputy CISO, a position within the branch but with reduced supervisory responsibilities. This proposed action was also reflected in the reorganization chart issued shortly after her written warning.
Things changed, however, after she filed a formal complaint of discrimination with FEMA’s EEO office. After this point, DHS not only extended her detail for several additional months but also reassigned her to the Resource Management Branch, which did not involve information security. Moreover, as this new position carried roughly the same supervisory duties as her original CISO position, “one might struggle to reconcile DHS’s explanation that it assigned her to the Resource Management Branch because of her supervisory skills with its explanation that it removed her from the CISO position in order to lessen her interpersonal and managerial duties.” This inconsistency could be probative of pretext and allow a jury to infer retaliation.
Initial decision was not. However, summary judgment was properly granted against the employee on her claim that the initial decision to extend her detail was retaliatory. She did not dispute that DHS initially extended her detail because more time was needed to onboard her replacement, nor did she seek further discovery relevant to that issue.
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