United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2018 Decided July 30, 2019
No. 17-5113
ELISA R. CRUZ,
APPELLANT
v.
KEVIN K. MCALEENAN, ACTING SECRETARY OF THE U.S.
DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00039)
Tamara L. Miller argued the cause and filed the briefs for
appellant.
Joshua L. Rogers, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: GRIFFITH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
2
WILKINS, Circuit Judge: Elisa Cruz alleges that the
Department of Homeland Security (DHS) engaged in
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII).
DHS filed a motion for summary judgment, which the District
Court granted over Cruz’s objection and request to take
discovery. Cruz appeals the District Court’s order granting
summary judgment to DHS and denying Cruz’s motion to stay
proceedings to allow for discovery under Federal Rule of Civil
Procedure 56(d). For the reasons set forth below, we reverse
the order in large part and remand for further proceedings.
I.
Because we are reviewing the District Court’s grant of
summary judgment, we take the following facts from the
evidence and read them in the light most favorable to Cruz, the
non-moving party, drawing all reasonable inferences in her
favor. See, e.g., Ortiz-Diaz v. Dep’t of Hous. & Urban Dev.,
Office of Inspector Gen., 867 F.3d 70, 72 (D.C. Cir. 2017).
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). The head of OCIO and
Cruz’s second-level supervisor was Jeanne Etzel, a white
woman. The Deputy Chief Information Officer for
Administration and Cruz’s direct supervisor was Maria Roat,
also a white woman.
In early January 2012, Don Buskard, one of Cruz’s
colleagues and a white man, sent Etzel an email reporting that
Cruz had behaved inappropriately during three meetings.
Etzel forwarded the email to Roat and asked her to investigate
3
Buskard’s allegations. Roat enlisted Human Resources to
discuss the allegation and “requested assistance in determining
if a reassignment would be warranted.” J.A. 216.
Reassignment would serve the purpose of limiting Cruz’s
supervisory duties without changing her salary grade. Human
Resource Specialist Kirsten Gunsolus advised Roat on how to
proceed. In an email to Roat dated January 4, 2012, Gunsolus
wrote:
[G]iven the fact that there are conduct issues regarding
Ms. Cruz, I would suggest that I conduct a fact finding
session and gather all the documentation surrounding
her conduct issues during the past year that you have
gathered, and then I would make a recommendation for
the reassignment to you from the [Labor and Employee
Relations] office. That way, if Ms. Cruz decides to
pursue any legal avenues, you’d have that
documentation and recommendation as backup for the
reassignment.
J.A. 104.
Over the next few weeks, Gunsolus began a “limited
administrative inquiry” into allegations of Cruz’s workplace
conduct. J.A. 216. In addition to interviewing several of
Cruz’s colleagues, Gunsolus reviewed emails from Cruz to
various people, meeting notes, and the report of a previous
investigation concerning Cruz. Gunsolus’s report notes that
“none of [Cruz’s] employees, except one that [did not] have
much interaction with her” wanted to participate in the
investigation. J.A. 217. Additionally, Gunsolus did not meet
with or interview Cruz in preparing her informal report.
On January 26, 2012, Gunsolus completed her
investigation. Gunsolus concluded that “there is general
4
consensus among the peers and employees that work with Ms.
Cruz that she is often abrasive, rude, yells, and is
condescending . . . .” J.A. 218. Gunsolus corroborated
Buskard’s allegations that Cruz had behaved unprofessionally
at recent meetings; she would “‘take over’ the meeting in a
negative way” and not follow the meeting agenda. J.A. 217.
During one meeting conducted via conference call, Cruz did
not announce “several of her subordinates” who were with her
in her office, “nor did any of them speak up at any time during
the meeting.” Id. Indeed, Gunsolus found that the general
feeling among her peers was that Cruz’s employees were too
afraid to speak up in her presence. Gunsolus ultimately
determined that Roat’s request to reassign Cruz to another
position with fewer supervisory responsibilities was
reasonable. Moreover, Gunsolus approved of Roat sending
Cruz a written warning that would serve to “put her on notice
that she needs to improve her conduct in her interactions with
people.” J.A. 218.
On March 14, 2012, Cruz received a written warning from
Roat. The warning explained that one of Cruz’s colleagues had
reported her for inappropriate conduct at meetings and that
there had been an informal inquiry into these allegations. Cruz
was notified that she was to be detailed for ninety days from
FEMA OCIO to a position with DHS Headquarters OCIO. In
response to the written warning and reassignment, Cruz sought
counseling from FEMA’s Equal Employment Opportunity
(EEO) office. In a March 29, 2012 email, Roat disseminated a
new OCIO organizational chart showing Cruz as Deputy CISO,
rather than CISO, her previous title. This reassignment, which
did not affect her paygrade, became effective on April 8, 2012.
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
5
later, on June 13, 2012, Roat asked DHS to extend Cruz’s detail
for four to six weeks so that the person taking over her former
position could be onboarded before she returned. On June 20,
2012, Cruz’s detail to DHS Headquarters was extended.
On October 1, 2012, Roat informed Cruz that, upon
returning from her detail, she would be placed in a new position
rather than assuming her already reassigned role of FEMA
Deputy CISO. She was to become the Chief of the Resource
Management Branch within the OCIO. Cruz objected to the
reassignment because she did not feel qualified to perform the
necessary duties. However, in or around December 2012,
FEMA’s Human Resources office conducted an inquiry and
determined that Cruz was sufficiently qualified for the new
role. Based on the June 2012 extension of her detail and
October 2012 second reassignment, on February 6, 2013, Cruz
amended her administrative complaint to include allegations of
retaliation. Over two years later, on September 25, 2015, an
administrative law judge for the Equal Employment
Opportunity Commission (EEOC) issued a decision in favor of
FEMA. On October 14, 2015, EEOC issued its final order,
which concluded that no discrimination or retaliation had
occurred.
On January 8, 2016, Cruz filed her federal complaint
against the Secretary of DHS, bringing claims of unlawful
discrimination and retaliation under Title VII. On April 28,
2016, DHS answered and then moved for summary judgment
three weeks later. Cruz opposed the motion in substance and
argued that it was premature given the lack of discovery. Her
counsel also submitted an affidavit under Rule 56(d) to support
her argument. On March 15, 2017, the District Court granted
summary judgment to DHS. The court found that DHS’s
explanation for its decision to detail and reassign Cruz was not
pretextual.
6
Cruz now appeals. Our review of the District Court’s grant
of summary judgment is de novo. Aka v. Wash. Hosp. Ctr., 156
F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). Summary
judgment is warranted where 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 dispute about a
material fact “is ‘genuine’ . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). We review the District Court’s decision to deny
discovery under Rule 56(d) for abuse of discretion. Pollack v.
Duff, 793 F.3d 34, 48 (D.C. Cir. 2015); Fed. R. Civ. P. 56(d).
II.
We first consider whether the District Court erred in
granting summary judgment without permitting Cruz to take
additional discovery. Because the District Court erroneously
concluded that the evidence sought by Cruz could not create a
dispute of material fact as to whether DHS’s proffered reasons
for taking adverse action were pretextual, we vacate the
decision of the District Court.
Title VII makes it unlawful for a federal employer to take
“personnel actions affecting employees” and motivated by
“any discrimination based on race, color, religion, or national
origin.” 42 U.S.C. § 2000e–16(a). Under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), a Title VII plaintiff seeking to prove disparate
treatment through indirect, circumstantial evidence “must first
establish a prima facie case of prohibited discrimination.” Aka,
156 F.3d at 1288. Once she has done so, the burden then shifts
to the employer to “articulate legitimate, nondiscriminatory
reasons for the challenged employment decision.” Id. If the
employer has properly offered legitimate, nondiscriminatory
7
reasons for its action, the burden shifts back to the plaintiff to
prove that the reasons are a pretext for discrimination. See
Figueroa v. Pompeo, 923 F.3d 1078, 1087-88 (D.C. Cir. 2019);
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008).
Cruz alleges that DHS violated Title VII in removing her
from her position as FEMA CISO and placing her on detail to
DHS’s Headquarters, and in “reassigning and demoting” her to
the position of Deputy CISO, because they did so on the basis
of her sex, race, national origin, and color. J.A. 15. According
to Cruz, she was subjected to disparate treatment as compared
to similarly situated white and non-African-American male
employees.
DHS moved for summary judgment after Cruz filed the
complaint, but before any discovery had taken place, stating
that it had detailed and reassigned Cruz because of complaints
regarding her “unprofessional and inappropriate conduct while
serving as the CISO.” J.A. 39. Cruz concedes that DHS
presented a legitimate, nondiscriminatory reason, and argues
instead that it is pretextual. In addition to opposing the motion
on the merits, Cruz’s counsel filed an affidavit pursuant to Rule
56(d) requesting that summary judgment proceedings be stayed
pending discovery. Under Rule 56(d), “[i]f a nonmovant
shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition,” the
court has discretion to, among other options, “allow time to
obtain affidavits . . . or to take discovery.” Cruz contends that
the District Court abused its discretion when it denied her the
opportunity to take discovery. Her affidavit, in relevant part,
requested discovery on:
The conduct of . . . Ms. Maria Roat toward the Plaintiff, as
well as toward Black employees, female employees, and
8
employees who had engaged in protected activity, versus
her conduct toward employees who did not share
Plaintiff’s protected characteristics . . .
The conduct of . . . Ms. Jeanne Etzel toward the Plaintiff,
as well as toward Black employees, female employees,
and employees who had engaged in protected activity,
versus her conduct toward employees who did not share
Plaintiff’s protected characteristics.
J.A. 295.
In denying Cruz’s Rule 56(d) request, the District Court
stated it was “extremely unlikely” that evidence that other
employees in DHS were treated more leniently could raise a
material dispute over whether FEMA’s justifications were
pretextual. Cruz v. Kelly, 241 F. Supp. 3d 107, 112 (D.D.C.
2017). Not so. “[C]omparative information concerning an
employer’s treatment of [protected groups] is relevant evidence
in an individual discrimination claim against that employer.
Such evidence can be used . . . to show that the employer’s
stated reasons for the challenged actions are a pretext for
discrimination.” Minority Employees at NASA (MEAN) v.
Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983) (per curiam).
Accordingly, 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.
The District Court also found that evidence of other
similarly situated employees being treated more favorably
would be irrelevant because of the “strong evidence” that the
DHS’s actions were independent of Cruz’s protected
characteristics. Cruz, 241 F. Supp. 3d at 112. Specifically, the
9
court was referencing the investigation that Gunsolus
conducted at the request of Roat and Etzel. Even if the
Gunsolus report were truly independent,1 the evidence Cruz
sought nonetheless would be material to the question of pretext.
This Court has never held that the existence of an independent
investigation is dispositive on the question of pretext. For
example, in Brady, where an employer offered, among other
evidence, that a misconduct incident had been “thoroughly and
independently investigated,” we noted that the plaintiff could
attempt to discredit this nondiscriminatory reason with
evidence that the employer treated other employees lacking
protected characteristics more favorably in the same factual
circumstances. See 520 F.3d at 495; see also Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir.
2016) (“Showing that others outside the plaintiff’s class have
been more favorably treated is ‘[e]specially relevant’ to a
demonstration of pretext.” (quoting McDonnell Douglas, 411
U.S. at 804)); Morris v. McCarthy, 825 F.3d 658, 672 (D.C.
Cir. 2016) (“The ‘mere conduct of an independent
investigation’ does not break the causal chain between a
supervisor’s bias and an adverse employment action.” (quoting
Staub v. Proctor Hosp., 562 U.S. 411, 421 (2001))).
We find that the evidence sought by Cruz could create a
genuine dispute of material fact as to whether DHS’s proffered
reasons for taking adverse action were pretextual. The District
Court’s conclusion to the contrary rested on legal errors and
1
Although we vacate the District Court’s denial of Cruz’s Rule 56(d)
request, the record as read in her favor could support an inference
that Gunsolus’s investigation was merely a post hoc effort to shore
up Roat and Etzel’s decision to discipline Cruz. After meeting with
Roat, Gunsolus agreed that she “would make a recommendation for
the reassignment,” thus providing Roat “documentation and
recommendation as backup for the reassignment” in the event that
Cruz took legal action, J.A. 104, as she has done here.
10
was thus an abuse of discretion. See Koon v. United States, 518
U.S. 81, 100 (1996) (“A district court by definition abuses its
discretion when it makes an error of law.”). Accordingly, with
respect to Cruz’s disparate treatment claim, we vacate the
judgment of the District Court and remand the case for further
proceedings. On remand, the District Court is free to consider,
consistent with this opinion, whether Cruz’s Rule 56(d)
affidavit otherwise met all the standards set by Convertino v.
United States Department of Justice, 684 F.3d 93 (D.C. Cir.
2012), including whether the affidavit offered a “reasonable
basis” to suggest that discovery would produce the evidence
required, Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231,
237 (D.C. Cir. 1999).
III.
We next consider whether the District Court erred in
granting summary judgment in DHS’s favor with respect to
Cruz’s retaliation claims. We find that summary judgment was
inappropriate with respect to Cruz’s claim that her
reassignment to the Resource Management Branch was
retaliatory. With respect to DHS’s initial decision to extend
her detail, we find that summary judgment was appropriate
because Cruz did not create a genuine dispute of material fact.
Title VII’s anti-retaliation provision prohibits employer
actions that discriminate against an employee because the
employee has “made a charge, testified, assisted, or
participated in any manner” in a Title VII “investigation,
proceeding, or hearing.” 42 U.S.C. § 2000e–3(a); see also
Figueroa, 923 F.3d at 1083 (noting that Title VII’s substantive
protections apply to federal-sector cases). We analyze Title
VII retaliation claims using the McDonnell Douglas
framework discussed above. See Geleta v. Gray, 645 F.3d 408,
410 (D.C. Cir. 2011). To establish a prima facie case of
11
retaliation, a plaintiff must show “(1) that he engaged in
statutorily protected activity; (2) that he suffered a materially
adverse action by his employer; and (3) that a causal link
connects the two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C.
Cir. 2009). If the plaintiff establishes a prima facie case, the
burden shifts to the employer to articulate a legitimate and
nonretaliatory reason for taking the adverse employment
action. See id; see also Figueroa, 923 F.3d at 1087-88. If the
employer successfully meets this burden, “whether the plaintiff
has made out a prima facie case is no longer relevant.” Geleta,
645 F.3d at 411. At this point, “the district court need not –
and should not – decide whether the plaintiff actually made out
a prima facie case,” Brady, 520 F.3d at 494, but rather “should
[] proceed[] to the ultimate issue of retaliation vel non,” Jones,
557 F.3d at 678. In determining whether a reasonable jury
could infer retaliation, the court reviews “all the evidence,
which includes not only the prima facie case but also the
evidence the plaintiff offers to attack the employer’s proffered
explanation for its action and other evidence of retaliation.”
Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010)
(quoting Jones, 557 F.3d at 677).
DHS sufficiently presented a legitimate, nonretaliatory
explanation for reassigning Cruz to the Resource Management
Branch: there was a need for a GS-15 employee with
managerial experience and she fit that role. Thus, the District
Court should not have assessed Cruz’s prima facie case but
rather should have proceeded to determine whether Cruz’s
evidence creates a genuine factual dispute on the issue of
retaliation. We review the evidence ourselves, cf. Jones, 557
F.3d at 679, and conclude that it does.
While the District Court concluded that all of the allegedly
retaliatory acts were foreordained by the initial disciplinary
decision, the record could reasonably support a conclusion that
12
the decision to reassign Cruz outside the information security
field was distinct from that initial action. DHS had
contemplated Cruz would take a ninety-day detail followed by
her return as Deputy CISO, a position within the Information
Technology Security Branch, and with reduced supervisory
responsibilities. As DHS reasoned, reassigning Cruz to Deputy
CISO would allow her to “focus more on [her] job and [] allow
for less interactions with people.” J.A. 192. This proposed
action was reflected in the reorganization chart issued to
relevant staff shortly after Cruz had received the written
warning. Things changed, however, after Cruz engaged in
protected activity – namely, filing 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 does not involve information security. Moreover, this
new position carried roughly the same supervisory duties as the
position from which Cruz was originally detailed away.
Although the District Court suggests that DHS was always
looking for a position for Cruz that “would not require her to
supervise the employees who had complained about her
behavior,” Cruz, 241 F. Supp. 3d at 113, the record lacks any
such evidence. In fact, on June 19, 2012, when Roat met with
Cruz to discuss the initial detail extension, she told Cruz that
she should plan on returning to the Information Technology
Security Branch as Deputy after her replacement had fully
transitioned. In so doing, Cruz would not have been insulated
from supervising the employees who complained about her. In
short, the record evidence does not indisputably fit with the
District Court’s theory that, all along, DHS wanted to “find[]
her an altogether different position.” Cruz, 241 F. Supp. 3d at
113.
This evidence also undermines DHS’s legitimate
explanation for reassigning Cruz to a different division.
13
Indeed, 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. Such inconsistency could be “probative
of pretext,” Geleta, 645 F.3d at 413 (quoting EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001)), and is
usually adequate to permit a jury to assess the retaliation claim,
see George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005); see
also Jones, 557 F.3d at 679.
Because DHS had properly articulated its legitimate,
nonretaliatory reason for the reassignment, we reject the
District Court’s grant of summary judgment on the ground that
Cruz’s prima facie case was lacking, and we reverse because
the evidence, taken together, was sufficient for a reasonable
jury to make an inference of retaliation.
Cruz has not, however, created 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.
Cruz has neither offered evidence to call that legitimate,
nonretaliatory explanation into question, nor has she requested
the opportunity to take further discovery relevant to that aspect
of the case. Accordingly, summary judgment on this aspect of
her retaliation claim was warranted.
IV.
The District Court erred in granting summary judgment on
Cruz’s disparate treatment claim and her retaliation claim
relating to her reassignment to the Resource Management
Branch, but it properly granted summary judgment on her
14
retaliation claim relating to DHS’s initial decision to extend her
detail. Accordingly, the judgment of the District Court is
affirmed in part and reversed in part, and the case is remanded
for further proceedings consistent with this opinion.
So ordered.