Rosa M. Aleman MARTINEZ, Plaintiff, v. PUERTO RICO FEDERAL AFFAIRS ADMINISTRATION, Defendant.
Civil Action No. 08-404 (RBW)
United States District Court, District of Columbia.
Sept. 26, 2011.
REGGIE B. WALTON, District Judge.
87 F.Supp.3d 84
Plaintiff also proffered Bailey-Jones’ job description of Juror Officer that presumably was controlling in 2001. Pl.‘s Ex. 4 [Dkt. # 40-4] (Juror Officer (Revised 4-14-97)). The overarching responsibility of the Juror Officer was to assure the “smooth operation of the Superior Court‘s Jury System.” Id. at 6 (page number supplied). Because the position was “highly visible and project[ed] an image of the court, [the] [i]ncumbent [was to] always exercise tact, good judgment and discretion in making independent decisions and interacting with jurors [and] correctly interpret all legislation and policies that govern the Juror‘s office.” Id. at 5. Among the Juror Officer‘s varied responsibilities was to make “quick decisions concerning the qualifying, deferring or excusing of jurors[.]” Id.
Given (1) the absence of any legal precedent at the relevant time establishing the alleged due process right, (2) the absence in 2001 of any formal procedures for (and judicial involvement in) removing grand jurors in Superior Court, (3) the apparent informal practice of delegating grand juror removal decisions to the Juror Officer, and (4) the Juror Officer‘s job description implicitly authorizing the practice, the Court finds that, even if a constitutional right exists in serving on a grand jury, defendants could not have reasonably known that their removal of plaintiff from the grand jury in April 2001 violated any “clearly established statutory or constitutional rights of which a reasonable person would have known.” Crawford-El, 523 U.S. at 588, 118 S.Ct. 1584; see Wilson, 526 U.S. at 617, 119 S.Ct. 1692 (“Given such an undeveloped state of the law, the officers in this case cannot have been ‘expected to predict the future course of constitutional law.’ “) (quoting Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978)).
III. CONCLUSION
For the foregoing reasons, the Court finds that the moving defendants are protected by qualified immunity and, thus, will grant their respective motions to dismiss. A separate, final order accompanies this Memorandum Opinion.
Paul J. Kennedy, Littler Mendelson, PC, Washington, DC, Lindsey H. McGinnis, Littler Mendelson, P.C., McLean, VA, for Defendant.
MEMORANDUM OPINION
REGGIE B. WALTON, District Judge.
Rosa M. Aleman Martinez, the plaintiff in this civil case, seeks injunctive relief and compensatory and punitive damages for her claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII” or the “Act“),
I. BACKGROUND
A. The Plaintiff‘s Employment with the PRFAA
The PRFAA is an executive-branch agency of the government of the Commonwealth of Puerto Rico, and its primary mission is to serve as a liaison between the Commonwealth of Puerto Rico and the United States government. Defendant Puerto Rico Federal Affairs Administration‘s Memorandum of Law in support of its Motion for Summary Judgment (“Def.‘s Mem.“) at 2. The plaintiff began working for the PRFAA as a clerk on or about September 8, 1986, and was promoted several times thereafter. Id. at 4. One of the promotions was to the position of Director of Finance on June 1, 2000. Second Am. Compl. ¶ 13; Def.‘s Mem. at 4. As Director of Finance, the plaintiff‘s primary responsibilities were to issue disbursements, to review the accounts payable, and to review the invoices of other staff members. Memorandum in Opposition to Defendant Puerto Rico Federal Affairs Administration‘s Memorandum of Law in Support of its Motion for Summary Judgment (“Pl.‘s Opp‘n“) at 2.3 In total, the plaintiff worked for the PRFAA for approximately twenty
B. Measures Taken by the PRFAA in Response to Budget Cuts
In January 2005, following the 2004 elections in Puerto Rico, a new Administration took office and Eduardo Bhatia was appointed Executive Director of the PRFAA. Def.‘s Mem., Ex. A (Affidavit of Eduardo Bhatia (“Bhatia Aff.“)) ¶ 1.4 Until 2005, the PRFAA‘s annual budget exceeded $10 million; however, as a result of what the defendant characterizes as a “severe fiscal crisis” facing Puerto Rico, its budget was “drastically reduced” between 2005 and 2007 to approximately $7 million. Id., Ex. A (Bhatia Aff.) ¶¶ 3-5. Although the plaintiff presents some evidence of a fiscal year 2004-2005 budget surplus, Pl.‘s Opp‘n, Ex. S (November 17, 2005 Letter from Juan Torres Martinez to Bhatia (“Nov. 17, 2005 Letter“)), at the beginning of 2005 the PRFAA projected “a budget deficit of approximately $700,000 before the end of the fiscal year,”5 and for this reason, during 2005, the PRFAA‘s budget was “cut by more than 30%,” Def.‘s Mem., Ex. A (Bhatia Aff.) ¶ 5.
“In response to the projected budget deficit, [the] PRFAA implemented various cost-saving measures,” including a plan for “eliminating positions in order to maximize the agency‘s remaining resources.” Id., Ex. A (Bhatia Aff.) ¶ 6. Director Bhatia instructed the PRFAA‘s Deputy Director, Ana Carrión, to “prepare a layoff plan and to submit a report to the Office of the Governor of Puerto Rico with proposed additional cuts in staffing and other expenditures.” Id., Ex. A (Bhatia Aff.) ¶ 8. Specifically, Director Bhatia requested that Deputy Director Carrión “review and evaluate” the PRFAA employees, “especially those of the Administration, Budget and Finance Division,” id., Ex. A (Bhatia Aff.) ¶ 9, because this division had more employees than any other in the agency, despite its scope being limited to internal organizational matters “rather than the external services that make up the PRFAA‘s entire mandate and mission,” id., Ex. A (Bhatia Aff.) ¶ 9. In July 2005, Deputy Director Carrión “finalized her evaluation and plan for restructuring the PRFAA,” which included the “elimination of the Administration portion of the Administration, Budget and Finance Division,” as well as a “reduction of the employees assigned to the Budget and Finance tasks to [seven] employees.” Id., Ex. A (Bhatia Aff.) ¶ 10. The plaintiff “was among the employees mentioned in the plan for possible job elimination.” Id., Ex. A (Bhatia Aff.) ¶ 10.
In September 2005, as part of the PRFAA reorganization spearheaded by Deputy Director Carrión, the Administration, Budget and Finance Division was replaced by the Budget and Finance Divi
C. The Plaintiff‘s Sexual Harassment Allegations
The plaintiff maintains that from November 2005 until March 2006, Chief Pachon subjected her to a hostile work environment. Second Am. Compl. ¶ 16; Pl.‘s Opp‘n at 3. Specifically, the plaintiff alleges that from the day he became her supervisor, Chief Pachon began a “pattern of uncomfortable, repeated and sustained sexual conduct upon the plaintiff,” Pl.‘s Opp‘n at 3, consisting of “commentaries, remarks, innuendos, expressions, and unwelcome looks and advances towards her person with sexual connotations and overtones,” Second Am. Compl. ¶ 16. She claims that from the time Chief Pachon “was appointed as [her] supervisor, ... [he] made clear to [her] that things [were] going to be his way from thereon.” Pl.‘s Opp‘n at 3-4. She contends that Chief Pachon made “comments about her dresses,” id. at 4, and testified at her deposition that he “always [had] something to say about the way [she] was dressing,” id., Ex. I (Plaintiff‘s Deposition Transcript (“Pl.‘s Dep. Tr.“)) at 131:13-14. The plaintiff alleges that “[these] kinds of remarks were made constantly.” Id. at 4. She also claims that Chief Pachon always “look[ed] at [her] with a nasty look,” id., and she testified at her deposition that he “was looking at [her] breast[s] all the time,” Def.‘s Mem., Ex. B (Pl.‘s Dep. Tr.) at 165:10-11. Similarly, the plaintiff asserts that Chief Pachon “constantly used to watch female breasts,” and that a coworker, “Ms. Torres[,] complained” about this conduct. Pl.‘s Opp‘n at 10.
The plaintiff further testified that sometime in February 2006, she entered Chief Pachon‘s office while he was on the phone and heard him say “hold on, someone with a smelly—who‘s smelling so good is just coming into my office.” Id. at 4; see also id., Ex. I (Pl.‘s Dep. Tr.) at 125:12-126:4. The plaintiff also contends that Chief Pachon once said to her in a “bad tone, ‘I won‘t bite you,‘” which she understood to be “suggestive of her sexual desirability.” Id. at 4-5. The plaintiff also claims, “[w]hile training him, Pachon demanded [her] to get close to [him] and rubbed his legs on her legs,” and that “[t]his type of conduct repeated several times between November and December of 2005 and February [] 2006.” Id. at 10. Additionally, the plaintiff avers that in “October of 2005 Pachon went into [her] office and grabbed her hand, telling her ‘I love the design of your nails.‘” Id. at 11. She claims that he
The plaintiff claims that, in response to her rejection of Chief Pachon‘s behavior, she was subjected to “needless monitoring, scrutiny[,] and eventually some of her job duties were reassigned to co[ ]workers.” Second Am. Compl. ¶ 18. She further contends that Chief Pachon “create[d] some operational procedures to make [her] go to his supervisor‘s office on a frequent basis, where he spent more of his working time.” Pl.‘s Opp‘n at 5. She alleges that Chief Pachon transferred the petty cash box from the plaintiff‘s office to his office. Id. The plaintiff testified at her deposition that prior to these alleged events, she “never had a problem on [her] job,” Def.‘s Mem., Ex. B (Pl.‘s Dep. Tr.) at 158:3, but that by February 2006, she “couldn‘t handle it [any] more,” id., Ex. B (Pl.‘s Dep. Tr.) at 175:5.
The PRFAA‘s personnel manual states that it is an equal-opportunity employer that “has a policy of prohibiting all types of discrimination in the workplace, including discrimination on the basis of sex and its expression as sexual harassment.”6 Id., Ex. C (PRFAA Personnel Handbook (“Personnel Handbook“)) at 12.7 The PRFAA manual encourages PRFAA employees to raise employment concerns and specifically provides that
[i]t is the duty and obligation of all employees to inform any act of an inappropriate sexual nature of which he/she is a victim or has observed in his/her workplace. The complaint can be submitted via the Executive Director or General Counsel or any other functionary of the agency delegated by him, who will then refer the matter to the Office of Legal Affairs and the Division of Human Resources.
Id., Ex. C (Personnel Handbook) at 13. The policy also specifies that no retaliatory action will be taken against a person who files a complaint of sexual harassment. Id., Ex. C (Personnel Handbook) at 15, 16.
The defendant argues that the plaintiff was “aware that [the] PRFAA has a policy against sexual harassment in the workplace and that there was a procedure set forth for reporting issues of sexual harassment.” Def.‘s Mem. at 4; see also id., Ex. C (Receipt of Employee Handbook & Certification) at 2-3. The plaintiff, however, claims that she “does not recall having signed a document titled, ‘Receipt of Employee Handbook,’ dated February 26, 1998.” Pl.‘s Opp‘n at 3. In addition, the plaintiff claims that the PRFAA never
The plaintiff never submitted a formal report detailing the allegations of sexual harassment to the PRFAA‘s Human Resources Department, but she did report the situation to Victor Torres, her former supervisor, id. at 5, and “thought that as one of the highest ranking position[s] within the agency[,] he might raise the situation [with] the Legal Department or the Executive Director,” id. She testified at her deposition that when she complained to him, Torres told her to “calm down” and that she “[had] to put it in writing.” Def.‘s Mem., Ex. B (Pl.‘s Dep. Tr.) at 152:9.
D. The Plaintiff‘s Termination From PRFAA
During a January 13, 2006 meeting “regarding administrative employees and the Budget and Finance Division,” Director Bhatia “made the decision to eliminate four positions,” including the plaintiff‘s position. Def.‘s Mem., Ex. A (Bhatia Aff.) ¶ 12. Director Bhatia asserts that he “had no knowledge of the alleged inappropriate conduct” the plaintiff “claims to have endured or [the plaintiff‘s] reaction to [Chief] Pachon‘s alleged conduct.” Id., Ex. A (Bhatia Aff.) ¶ 14. As previously noted, the plaintiff was notified that her position had been terminated on March 13, 2006. Id., Ex. C (Aleman Deposition Exhibit 11: Notice of Termination) at 17. The plaintiff has acknowledged that she does not know who made the decision to terminate her employment. Pl.‘s Opp‘n, Ex. I (Pl.‘s Dep. Tr.) at 97:19-21.
E. The Procedural Posture of the Plaintiff‘s Lawsuit
On June 2, 2006, the plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC“), alleging that she had been subjected to discrimination based on her sex and also to retaliation. Id., Ex. C (Aleman Deposition Exhibit No. 15: EEOC Charge (“EEOC Charge“)) at 18. The EEOC subsequently issued to the plaintiff a Notice of Right to Sue on February 16, 2007. Second Am. Compl. ¶ 3.
The plaintiff originally initiated this lawsuit in the United States District Court for the District of Puerto Rico on March 12, 2007, against the PRFAA, as well as Director Bhatia, Bhatia‘s wife, Chief Pachon, Pachon‘s wife, Deputy Director Carrion, and Carrion‘s husband. See Compl. ¶¶ 6-11. The first complaint included (1) a
On February 28, 2008, the District of Puerto Rico granted the defendants’ motion to transfer this case to this Court. Aleman-Martinez v. PRFAA, Order, No. 07-1205(JAF) (D.P.R. Feb. 28, 2008). Since the transfer, this Court has granted in part motions to dismiss filed by the original defendants; as a result, only the Title VII claim against the PRFAA remains. See Aleman-Martinez v. PRFAA, Order, No. 08-404(RBW) (D.D.C. Apr. 29, 2009); Aleman-Martinez v. PRFAA, Order, No. 08-404(RBW) (D.D.C. Sept. 28, 2009). The PRFAA filed its motion for summary judgment on January 21, 2011.
II. STANDARD OF REVIEW
Under Rule 56, summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
III. LEGAL ANALYSIS
A. The PRFAA‘s Argument that the Plaintiff Did Not Exhaust Her Administrative Remedies
The first issue for the Court to address is whether the plaintiff failed to exhaust her administrative remedies concerning the incidents of alleged sexual harassment that occurred prior to February 2006 because she did not mention them in her EEOC complaint. It is clear that
A claim that is not included in an administrative complaint is “barred” under Title VII, “unless it is like or reasonably related to the allegations of the charge and growing out of such allegations.” Park, 71 F.3d at 907 (internal quotation marks and citations omitted). “At a minimum, the Title VII claims must arise from ‘the administrative investigation that can reason
Although the defendant is correct that the plaintiff‘s EEOC complaint does identify the period of alleged harassment as beginning in February 2006, the specificity imparted by that date in the EEOC charge is tempered by the remainder of the sentence that follows that introductory clause. Specifically, the pertinent sentence in the EEOC complaint actually reads in its entirety: “Beginning in February 2006, and while under the supervision of Chief Financial Officer—Mr. Pachon, I was subjected to his consistent sexual comments.” Def.‘s Mem., Ex. C (EEOC Charge) at 18 (emphasis added). While certainly not a perfectly drafted sentence, the use of the word “and” does seem to expand the timeframe of the alleged harassment from February 2006 to the entire time the plaintiff
B. The PRFAA‘s Argument that the Plaintiff has Failed to Establish a Prima Facie Case of Sexual Harassment
The second issue before the Court is whether the plaintiff has made a sufficient showing to establish a prima facie claim of sexual harassment. “To establish a prima facie case of the existence of a hostile work environment based on sexual harassment, the plaintiff must state facts sufficient to prove each of the following elements: (1) she was subjected to harassment because of her sex; (2) she found the harassment subjectively unwelcome; (3) the harassment was sufficiently severe or pervasive to create an abusive, hostile working environment; and (4) she has some basis for imputing liability for the harassment to the employer.” Cromer-Kendall v. District of Columbia, 326 F.Supp.2d 50, 57 (D.D.C.2004); see also Davis v. Coastal Int‘l Security, Inc., 275 F.3d 1119, 1122-23 (D.C.Cir.2002). “[I]n order to be actionable under [Title VII], a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII‘s purview.“). The Court will examine in turn each element of a prima facie case of a hostile work environment claim.
1. The Plaintiff‘s Claim that She Was Harassed Because of Her Sex
Courts in this district have “routinely held that hostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile work environment unless there exists some linkage between the hostile behavior and the plaintiff‘s membership in a protected class.” Na‘im v. Clinton, 626 F.Supp.2d 63, 73 (D.D.C.2009). Therefore, in order for a harassment claim to prevail, it “must be clear that the hostile work environment was the result of discrimination based on a protected status.” Burton v. Batista, 339 F.Supp.2d 97, 107 (D.D.C.2004). Thus, allegations of discriminatory acts that are
The defendant argues that several of the acts of sexual harassment alleged by the plaintiff are “neither sexual nor gender-based,” and, therefore, as a matter of law cannot constitute unlawful sexual harassment. Def.‘s Supp. Reply at 4. Specifically, the defendant references the plaintiff‘s allegations that Chief Pachon pressured her to perform her job duties in accordance with his preferences, implemented new procedures, insisted that the plaintiff brief him on job-related matters, and repeatedly asked the plaintiff work-related questions. Id. These facts, when viewed in isolation, do initially appear unrelated to the plaintiff‘s sex, but the plaintiff also makes other allegations (for example, the claim that Chief Pachon stared at women‘s breasts) that provide a “circumstantial or other basis,” Alfano, 294 F.3d at 378, for a fact-finder to reasonably infer that these events were based on the plaintiff‘s sex. Because the Court at this stage of the proceedings must draw all justifiable inferences in the nonmovant‘s favor, Anderson, 477 U.S. at 255, 106 S.Ct. 2505, the Court cannot now conclude as a matter of law that the complained about conduct was not a result of the plaintiff‘s sex.
2. The Plaintiff‘s Claim that the Alleged Harassment was Subjectively Unwelcome
The defendant argues that the “[p]laintiff‘s actions indicate that she perceived the vast majority of Mr. Pachon‘s actions as mere annoyances rather than harassing conduct that was hostile or abusive and subjectively offensive.” Def.‘s Supp. Reply at 7. At this stage in the proceedings, however, when all inferences must be drawn in favor of the plaintiff as the nonmoving party, there seems to be sufficient evidence in the record that the plaintiff did perceive Chief Pachon‘s behavior as unwelcome. See, e.g., Pl.‘s Opp‘n at 4 (asserting that the plaintiff “considered his looks ‘disgusting‘“) (quoting the plaintiff‘s deposition transcript); id. (claiming that by February 2006, the plaintiff “‘couldn‘t handle any more‘“) (quoting the plaintiff‘s deposition transcript); Def.‘s Mem. at 17 (observing that the plaintiff testified that she found Chief Pachon to be “‘annoying‘“) (quoting the plaintiff‘s deposition transcript).
3. The Plaintiff‘s Claim that the Alleged Harassment was Severe and Pervasive
To determine whether a work environment is sufficiently hostile to be actionable under Title VII, the Supreme Court has instructed courts to consider the totality of the circumstances alleged including (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or merely offensive; and (4) whether the conduct reasonably interfered with the employee‘s performance.
The plaintiff alleges several acts of sexual harassment that she claims created a hostile work environment.10 She maintains that from the day he was appointed her supervision, Chief Pachon made clear that “things [were] going to be his way from thereon.” Pl.‘s Opp‘n at 4. She claims that Chief Pachon complimented her on her clothing, id., remarked that she smelled good, id., Ex. I (Pl.‘s Dep. Tr.) at 125:12–126:4, gave her nasty looks, id. at 4, told her, “I won‘t bite you“, id., touched her hand to comment on her manicure, id. at 11, looked at her breasts, Def.‘s Mem., Ex. B (Pl.‘s Dep. Tr.) at 165:10–11, as well as those of other women, Pl.‘s Opp‘n at 10, and pulled his chair close to her and rubbed his legs against her legs, id. The defendant asserts that these alleged acts “hardly rise to the level of actionable harassment under Title VII.” Def.‘s Mem. at 14.
The Court agrees with the defendant. Chief Pachon‘s conduct, assuming that it did occur as alleged, was clearly unsavory; however, as a matter of law, it simply cannot be characterized as so “severe,” “pervasive,” or “abusive” to constitute a hostile work environment. See Burton, 339 F.Supp.2d at 107. To begin with, many of the plaintiff‘s allegations consist of isolated or infrequent occurrences—namely, Chief Pachon‘s comment about how she smelled, his comment that he would not bite her, the fact that he touched her hand two different times between October and December 2005, and Chief Pachon‘s transfer of the petty cash box to his office—and therefore are not “sufficiently continuous and concerted” to be characterized as pervasive. Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 98 (D.D.C.2007) (citing Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir.1989)). Indeed, the plaintiff herself states that “[w]hile a pattern of improper conduct began in September 2005[,] it was not until late 2005 and February 2006 that such conduct became pervasive and intolerable,” Pl.‘s Opp‘n 4 n. 1, which seems to contradict the allegations made in the Second Amended Complaint (i.e., that the plaintiff was subjected to a hostile work environment from the moment Chief Pachon became her supervisor). The conduct that did allegedly occur with greater frequency, including the plaintiff‘s contention that Chief Pachon constantly made remarks about her clothing, Pl.‘s Opp‘n, Ex. I (Pl.‘s Dep. Tr.) at 131:13-14, always looked at her with a “nasty look,” id. at 4, “constantly” looked at women‘s breasts, id. at 10, and that she was subjected to heightened monitoring and supervision, Second Am. Compl. ¶ 18, still falls short of the requisite severity to establish an actionable harassment claim.
Courts in this Circuit and other Circuits have rejected claims of sexual harassment
Because the plaintiff has “failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548, namely, that the harassment was sufficiently severe or pervasive, the defendant is entitled to summary judgment on the plaintiff‘s sexual harassment claim.11
C. The Plaintiff‘s Retaliation Claim
The third issue before the Court is whether the plaintiff has produced sufficient evidence for a reasonable jury to find that the reason given by the PRFAA for her termination was not the actual reason and that the PRFAA, in fact, retaliated against her for activity protected by Title VII. Title VII‘s anti-retaliation provision “forbids employer actions that discriminate against an employee (or job applicant) because [she] has opposed a practice that Title VII forbids.” Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). “Evaluation of Title VII retaliation claims follows the same burden-shifting template as discrimination claims.” Holcomb v. Powell, 433 F.3d 889, 901 (D.C.Cir.2006) (citing Cones v. Shalala, 199 F.3d 512, 520 (D.C.Cir.2000)). “First, a plaintiff must establish a prima facie case of retaliation; if she meets that burden, the employer must articulate a legitimate nonretaliatory reason for its action; finally, the plaintiff has the ultimate burden of establishing that the reason asserted by the employer is pretext for retaliation.” Holcomb, 433 F.3d at 901.
Following precedent set by the Supreme Court in U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), however, this Circuit has repeatedly clarified that, at the summary judgment stage in a case in which an employee has suffered an adverse employment action and the employer has asserted a legitimate, nondiscriminatory or nonretaliatory reason for that action, “the district court need not—and should not—decide whether the plaintiff actually made out a prima facie case.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008); see also Aikens, 460 U.S. at 715, 103 S.Ct. 1478 (“Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.“); Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (explaining that Brady‘s instruction that the district court should not examine whether a plaintiff has made out a prima facie case “appl[ies] equally to retaliation claims“). Rather, in such circumstances, the Circuit has directed the district court to “resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer‘s asserted non[] discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on [a prohibited basis]?” Brady, 520 F.3d at 494. “Of course, consideration of this question requires [the court] to evaluate all of the evidence before [it],
Here, the two threshold considerations of Brady—an adverse employment action and the expression of a legitimate, nonretaliatory reason—are present. See Brady, 520 F.3d at 495 (identifying an adverse employment action sustained by an employee but finding a legitimate, nondiscriminatory reason for the employer‘s action). First, the defendant does not dispute that the plaintiff suffered an adverse employment action. Def.‘s Mem. at 21-22. And second, the defendant has articulated a legitimate, nonretaliatory reason for its decision to terminate the plaintiff‘s employment with the PRFAA: “Specifically, due to severe budgetary cuts, [the] PRFAA decided to eliminate several positions, including [the] plaintiff‘s, in order to stay within the agency‘s reduced budget.” Id. at 22. Accordingly, the Court must proceed to examine whether the plaintiff has produced sufficient evidence for a reasonable jury to find that this asserted nonretaliatory reason was not the actual reason and that the defendant intentionally retaliated against her.
The plaintiff asserts that the defendant‘s reliance on budget cuts as the reason for her termination represents pretext for retaliation. Confusingly, however, in the initial paragraphs of her opposition to the defendant‘s summary judgment motion she cites facts that seem to support the defendant‘s position. See Pl.‘s Opp‘n at 6-7; see also Def.‘s Supp. Reply at 17 (referencing the facts underlying the plaintiff‘s arguments in her opposition). For example, the plaintiff writes: “[The] PRFAA‘s budget was cut from $10.2 million to [approximately] $7 million ... for the 2005-2006 fiscal year[], which commenced [o]n July 1, 2005. [The] PRFAA maintained the same budget during ... fiscal years 2005-2006 and 2006-2007.” Pl.‘s Opp‘n. at 6. She continues: “During 2005 [, the] PRFAA reduced its payroll in the approximate amount of $333,000.00, which represents approximately $200,000 less than in December 2004. For that period the amount of employees was reduced [by] 44%.” Id. The plaintiff also states that the “PRFAA reduced its operational expenses ... by lowering its office[] space leased in Washington from [an expense of] $114,984 to $83,743.” Id. at 6-7. In light of these acknowledgments, it seems that the plaintiff‘s arguments regarding pretext rest on the asserted facts (1) that the PRFAA had a surplus for the fiscal year 2004-2005, id. at 7, (2) that her employment at the PRFAA continued even after she received a memorandum in August 2005 warning of impending layoffs, id., and (3) that after receiving a letter in August 2005 informing her that her salary would be reduced, id. at 8, the PRFAA sought to hire new employees in February 2006, id. at 9.
First, the plaintiff points to a November 17, 2005 letter received by Director Bhatia from the Assistant Secretary of the Central Accounting Area of the PRFAA. Id. at 7. The letter begins, “[w]e make reference to your communication in which [you] request authorization to utilize the fiscal year 2004/2005 surplus to pay the expenses of an external audit.” Id., Ex. S (Nov. 17, 2005 Letter) at 1. The letter makes clear, however, that “all authorized assignment and funds for an economic year, will be exclusively applied for the payment of expenses legitimate[ly] incurred during the respective year or for the payment of obligations legally acquire[d] and properly set forth in the books of said year.” Id., Ex. S (Nov. 17, 2005 Letter) at 1. The letter also explains that any unspent funds were required to be returned to the Secretary of
Second, the plaintiff seemingly argues that because the Administration, Budget and Finance Division did not “cease to exist,” despite an August 17, 2005 memorandum indicating that the division would be eliminated, the defendant has overstated the severity of the budgetary issues it faced prior to her termination. Id. at 7. The August 17, 2005 Memorandum reported on “Administrative Changes,” and stated that the “PRFAA‘s Administration, Budget and Finance Division will cease to exist.” Id., Ex. L (August 17, 2005 Memorandum from Director Bhatia to all PRFAA staff (“Aug. 17, 2005 Memo.“)) at 1. The memorandum continues, “Mr. Pachon and I will announce a full restructuring of the Budget and Finance Division within the next ten days.” Id., Ex. L (Aug. 17, 2005 Memo.) at 1. The plaintiff alleges that the restructuring referenced in August 17, 2005 memorandum took place nine days later “on August 26[,] and as a consequence [the] plaintiff‘s position continued to exist.” Id. at 8. The plaintiff further asserts that “[t]he memorandum made evident that Ms. Aleman w[ould] continue performing the same duties she was performing prior to the reorganization implemented in August 2005 as directed by Mr. [Bhatia].” Id.
Next, the plaintiff maintains that the “economics measures at no time [sought] to eliminate [her] position but to reduce her salary, as well as the ... salaries of employees earning more than $35,000.” Id. The plaintiff points to an August 26, 2005 letter as evidence that her position was never scheduled for elimination. Id. (explaining that the plaintiff‘s position was “to be uph[e]ld[,] but with a 15% reduction o[f] her salary“). The letter states:
As explained during our August 4, 2005 meeting, due to the 32% reduction on [the] PRFAA‘s FY 2005-2006 budget, we were forced to implement numerous austerity measures to avoid or minimize [layoffs]. Specifically, we announced an agency-wide implementation of a salary and work hours reduction. At this time, I would like to provide additional information about how it will impact each one of us.
Id., Ex. N (August 26, 2005 letter from Director Bhatia to the plaintiff (“Aug. 26, 2005 letter“)) at 1.12 The letter goes on to explain that the plaintiff‘s salary would be reduced by 15%, that she would be limited to thirty-two hours of work per week, and that the reduced schedule would be in effect for the next six months. Id., Ex. N (Aug. 26, 2005 letter) at 1. The letter concludes: “Please rest assured that we are taking all necessary and reasonable steps to resolve the current fiscal situation in the manner most beneficial to our staff and our constituents.” Id., Ex. N (Aug. 26, 2005 letter) at 2.
Finally, the plaintiff references a February 7, 2006 letter received by Director Bhatia and contends that “[d]uring February 2006, Mr. B[hatia] attempted to hire[] additional personnel to work at [the] PRFAA.” Id. at 9; see also Pl.‘s Opp‘n, Ex. O (February 7, 2006 letter from Guillermo San Antonia Acha, Legal Advisor, to Director Bhatia (“Feb. 7, 2006 letter“)).13
When the above evidence is evaluated in answering the “question of retaliation vel non,”14 Jones, 557 F.3d at 679, it is insufficient to permit a reasonable jury to find that the defendant‘s asserted nonretaliatory reason was not the actual reason for the plaintiff‘s termination. As to the plaintiff‘s argument that the PRFAA was operating with a budget surplus, she relies on one letter that vaguely references a surplus for the 2004-2005 fiscal year. Pl.‘s Opp‘n at 7.
The letter does not identify the amount of that surplus, nor does it give any indication that the remainder of the funds were from the budget allotted to the plaintiff‘s division at the PRFAA.15 Assuming, however, that the surplus was of even a modest amount and that it consisted of funds allocated to the plaintiff‘s division, the surplus was for the 2004-2005 fiscal year—July 1, 2004 through June 30, 2005—and the plaintiff was not terminated until March 2006. In other words, the fact that an earlier surplus may have once existed does not speak to the budgetary constraints confronting the PRFAA at the time the plaintiff‘s position was eliminated or whether funds may have existed at that time that could have obviated the need to eliminate her position. Furthermore, the letter on which the plaintiff relies itself makes clear that the surplus funds had to be expended on costs incurred in the 2004-2005 fiscal year or returned to the Treasury. Id., Ex. S (Nov. 15, 2005 Letter) at 1. In short, the November 15, 2005 letter does little, if anything, to contest the legitimate, nonretaliatory reason provided by the defendant for the plaintiff‘s termination.
Next, the plaintiff‘s argument that because the Administration, Budget and Finance Division did not cease to exist shows that the defendant has overstated its budgetary crisis not only fails to demonstrate pretext, but also contradicts her own deposition testimony. As the defendant points out, Def.‘s Supp. Reply at 18, the plaintiff‘s deposition testimony acknowledged that the organization of the PRFAA had
Next, rather than illustrating that the plaintiff‘s position was immune to budget cuts, the August 26, 2005 letter shows that the plaintiff‘s position was one that the defendant believed could be targeted to save costs. The plaintiff is entirely correct that the August 26, 2005 letter reduces her salary, Pl.‘s Opp‘n, Ex. N (Aug. 26, letter) at 1, but it does not, as she contends, demonstrate that her position was “to be upheld,” id. at 8. It is true that the defendant initially attempted to confront its financial situation by reducing salaries, but this was no guarantee that these measures would entirely or forever remedy the situation, nor did the August 26, 2005 letter foreclose the defendant from pursuing other avenues to address its reduced budgets. Indeed, the August 26, 2005 letter ends with the assurance that the PRFAA was “taking all necessary and reasonable steps to resolve the current fiscal situation in the manner most beneficial to our staff,” Pl.‘s Opp‘n, Ex. N (Aug. 26, 2005 letter), and it was reasonable for the defendant to initially attempt to remedy the problem by reducing salaries, but this did not preclude the defendant from taking other measures as the need would arise. In any event, the August 26, 2005 letter viewed in conjunction with Director Bhatia‘s statement that the plaintiff‘s position was identified for possible elimination in July 2005 cuts against the plaintiff‘s pretext argument because it shows that the defendant targeted the plaintiff‘s position, albeit for salary reduction and not termination, and proves that the defendant took, at the plaintiff‘s expense, steps to remedy the budgetary problems months before the plaintiff mentioned the alleged harassment to anyone at the PRFAA. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (concluding that an employer “proceeding along lines previously contemplated, though not yet definitive-ly determined, is no evidence whatever of causality” with respect to retaliation); see also Trawick v. Hantman, 151 F.Supp.2d 54, 63 (D.D.C.2001) (holding that because a termination process had already been initiated, no reasonable juror could conclude
Finally, much like the plaintiff‘s other attempts to cast dispersions on the actual severity of the defendant‘s budgetary cuts, the February 7, 2006 letter does no such thing. The letter points to financial woes as the basis for denying Director Bhatia‘s request to fill vacant positions. Pl.‘s Opp‘n, Ex. O (Feb. 7, 2006 letter). The fact that a money-strapped agency sought, but was denied, permission to employ three new employees does not give rise to a reasonable inference that the defendant impermissibly retaliated against the plaintiff when it ended her employment.
As this Circuit has made clear, it is not for the Court ” to judge the wisdom of a[n employer‘s] business decisions.” Stacey v. Allied Stores Corp., 768 F.2d 402, 408 (D.C.Cir.1985) (quoting Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir.1982)). The record is replete with evidence demonstrating the severity of the fiscal crisis confronting the defendant, indeed, the entire of Puerto Rican government, during the 2004-2005 and 2005-2006 fiscal years. See, e.g., Def.‘s Mem., Ex. A (Bhatia Aff.); Pl.‘s Opp‘n, Ex. L (Aug. 17, 2005 Memo); id., Ex. N (Aug. 26, 2005 letter); Id., Ex. O (Feb. 7, 2006 letter). Moreover, the defendant continued to eliminate occupied positions and to freeze hiring to fill vacant positions in the months following the plaintiff‘s termination. Def.‘s Mem., Ex. A (Bhatia Aff.) ¶ 17. Thus, rather than presenting evidence that the PRFAA‘s stated reason for her termination is pretext for retaliation, the plaintiff‘s own evidence confirms the financial turmoil that faced the PRFAA. See Pl.‘s Opp‘n at 6-7. The plaintiff has therefore failed to present any evidence that would allow a reasonable jury to infer that the defendant‘s stated reason for her termination—budget cuts—was not the actual reason. For example, the plaintiff has not shown that the PRFAA had resolved its budgetary challenges at the time of her termination in March 2006, nor has she provided evidence tending to indicate that her position was not eliminated, but merely filled by someone else. Such evidence is, of course, not necessarily required for the plaintiff to defeat the defendant‘s motion for summary judgment, but it is evidence of the type that would enable a reasonable jury to infer that the defendant‘s stated legitimate, nonretaliatory reason for terminating the plaintiff is a pretext. The Court appreciates that in assessing the plaintiff‘s evidence “to determine whether a jury could reasonably rule in her favor, [it must] remain mindful that a plaintiff can show [retaliation] ‘either by directly persuading the [factfinder] that a [retaliatory] reason more likely motivated the employer[,] or indirectly by showing that the employer‘s proffered explanation is unworthy of credence.‘” George, 407 F.3d at 413 (quoting Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The plaintiff having failed to present any such evidence in either respect, the defendant is entitled to summary judgment on the plaintiff‘s retaliation claim.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the plaintiff has failed to make an adequate showing that the harassment she claims to have been subjected to was sufficiently severe or pervasive to be actionable. She has similarly failed to present sufficient evidence to allow a reasonable jury to infer that the defendant‘s stated reason for her termination was pretextual. Accordingly, the defendant is entitled to judgment as a matter of law with respect to both the plaintiff‘s sexual harassment and retalia
SO ORDERED this 26th day of September, 2011.16
REGGIE B. WALTON
UNITED STATES DISTRICT JUDGE