Cruz v. McAleenan, No. 17-5113 (D.C. Cir. July 30, 2019)

| Jul 30, 2019 | Daily Developments in EEO Law |

The D.C. Circuit remands a summary judgment in a Title VII case, holding that the district court erred in not allowing the plaintiff to get discovery on whether “white . . . or male employees, were disciplined less severely for the sort of behavior for which Cruz was disciplined.”

Cruz v. McAleenan, No. 17-5113 (D.C. Cir. July 30, 2019): “Cruz, an African-American female of Hispanic national origin, was employed from 2007 to 2012 within DHS as the Chief Information Security Officer (CISO) at the Federal Emergency Management Agency’s (FEMA) Office of the Chief Information Officer (OCIO).”

A white male colleague accused Cruz of unprofessional conduct during office meetings, referring his complaints to Cruz’s second-level supervisor. An investigation by human resources turned up a “consensus among the peers and employees that work with Ms. Cruz that she is often abrasive, rude, yells, and is condescending,” and “that Cruz’s employees were too afraid to speak up in her presence.” Cruz was given a warning and temporarily detailed to other work, representing a demotion on the office’s organization chart.

“On June 6, 2012, Cruz filed a formal complaint with FEMA, alleging that she had been subject to discrimination based on her race, color, national origin, and sex.” One week later, Cruz’s assignment was extended several months. Then, rather than being returned to her former role, Cruz was permanently reassigned to a new organization (the Resource Management Branch) and role that she claimed she was untrained and unqualified to perform. Cruz filed another complaint alleging retaliation.

After exhausting administrative procedures, Cruz filed a federal civil action on January 8, 2016 alleging Title VII sex and race discrimination, plus retaliation for her complaints. Three weeks after answering the complaint, and before discovery had commenced, the agency filed a motion for summary judgment. Cruz submitted an affidavit under Rule 56(d) to obtain discovery to support her case. She specifically requested evidence of the agency’s treatment of “the Plaintiff, as well as toward Black employees, female employees, and employees who had engaged in protected activity, versus . . .  conduct toward employees who did not share Plaintiff’s protected characteristics.” The district court denied discovery and granted the summary judgment motion.

On appeal, the D.C. Circuit mostly vacates and remands the case. The pith of the opinion is the holding that the district court abused its discretion by denying Cruz the requested discovery. While the district court found the disciplinary record too clear cut to furnish any basis for pretext, the panel holds that “evidence that white employees, or male employees, were disciplined less severely for the sort of behavior for which Cruz was disciplined could create a dispute of material fact about whether FEMA’s justification was a pretext for discrimination.”

It also rejects the district court’s holding that an independent investigation by the agency broke the causal chain and negated any inference of discrimination or retaliation. Yet “[t]his Court has never held that the existence of an independent investigation is dispositive on the question of pretext.” The panel remands the case for further consideration of the plaintiff’s Rule 56(d) motion.

It also vacates summary judgment on one of Cruz’s retaliation claims, “that her reassignment to the Resource Management Branch was retaliatory.” The panel holds that “after Cruz engaged in protected activity – namely, filing a formal complaint of discrimination with FEMA’s EEO office – . . . her agency not only extended her detail for several additional months but also reassigned her to the Resource Management Branch, which does not involve information security.”

While the agency claimed that the transfer was motivated by a judgment that Cruz needed to be removed from supervisory duties, “this new position carried roughly the same supervisory duties as the position from which Cruz was originally detailed away.” Moreover, “one might struggle to reconcile DHS’s explanation that it assigned Cruz 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.”

Nevertheless, “Cruz has not … create[] a genuine dispute of material fact with respect to the initial decision to extend her detail. DHS proffered evidence showing that it initially extended Cruz’s detail for four to six weeks because more time was needed to onboard her replacement as permanent CISO.” There was no contrary evidence and Cruz did not seek additional discovery on this theory.

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