Santos v. Barr
| Decision Date | 17 June 2019 |
| Docket Number | Civil Action No. 17-321 (RMC) |
| Court | U.S. District Court — District of Columbia |
| Parties | VIRNA L. SANTOS, Plaintiff, v. WILLIAM P. BARR, Defendant. |
Virna L. Santos is an attorney who served at the Department of Justice, in California, in Bogotá, Colombia, and at Main Justice in Washington, D.C., until September 30, 2014. In this lawsuit, Ms. Santos alleges that she was retaliated against, harassed, and dismissed because she engaged in protected activity and not because there was a lack of funding for her position. The Department of Justice denies any discrimination. It states that Ms. Santos held positions which were limited-term appointments subject to funding and the Department reluctantly terminated her when funding for her most recent position could not be obtained. Based on legitimate nondiscriminatory reasons for its actions, the Department moves for summary judgment.
Virna L. Santos left her position as an Assistant United States Attorney in the Eastern District of California in 2007, on a detail to the Department of Justice's (DOJ) Criminal Division, Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT), as a Resident Legal Advisor in Bogotá, Colombia. See Def.'s Statement of Undisputed Material Facts (Def.'s SOF) [Dkt 19] ¶ 1.1, 2 OPDAT is a section within DOJ's Criminal Division that works to "develop and administer technical assistance designed to enhance the capabilities of foreign justice sector institutions" so that they can work effectively with DOJ to combat terrorism, human trafficking, organized crime, corruption and financial crimes. Def.'s Mem. in Supp. of Mot. for Summ. J. (Def.'s Mem.) [Dkt. 19] at 2 (citing U.S. DOJ, OPDAT, https://www.justice.gov/criminal-opdat). As of September 26, 2010, Ms. Santos transferred to Main Justice in Washington, D.C. to serve as OPDAT's Regional Director for Latin America and the Caribbean (LAC). Ms. Santos' appointment had a "not-to-exceed" date of September 25, 2012, because it was a "two year term appointment." Def.'s SOF ¶ 1.
Funding for OPDAT programs relies heavily on Interagency Agreements between the Department of State and DOJ, although funds may come from other sources as well; available monies can vary greatly from year to year. Id. ¶ 2. Ms. Santos says that she disputes this fact, stating "[w]hile it is true that OPDAT relies on interagency funds, there was no shortage of funds in 2014." Pl.'s Statement of Genuine Issues in Supp. of Her Opp'n to Mot. for Summ. J. (Pl.'s SOF) [Dkt. 22] at 2. Her dispute merely adds an argument, citing to her own declaration, but does not actually dispute Defendant's fact, which is therefore undisputed.
On March 13, 2011, Ms. Santos was appointed to a second time-limited appointment, to expire on March 12, 2013. It was described as "Dependant [sic] on Continued Availability of Funds." Def.'s SOF ¶ 3 (correction in original). Again, Ms. Santos says she disputes this fact, but only adds argument, again citing to her own declaration, that "[t]he 'not to exceed' dates were the subject of routine exceptions, and no OPDAT headquarters personnel or Regional Director other than Ms. Santos ever was refused the renewal of a term for financial reasons." Pl.'s SOF at 2. The fact that Ms. Santos's second appointment at Main Justice was also time-limited between 2011 and 2013 is therefore undisputed.
It is also undisputed that on July 11, 2012, Ms. Santos forwarded an email from Jeanette Mercado-Rios, a Resident Legal Advisor (RLA) in Mexico City, Mexico, to Carl Alexandre, OPDAT Director. The subject line of the email was "Disrespectful Working Environment." Def.'s SOF ¶ 4; Def.'s Ex. 6 [Dkt. 19-1] at 43-44.3 It is further undisputed that on July 12, 2012, Ms. Santos sent an email summarizing a discussion she had had with Rene Holmes, another RLA in Mexico City, which Ms. Santos characterized as a report of a "hostile work environment." Def.'s SOF ¶ 4; Def.'s Ex. 7 [Dkt. 19-1] at 46. None of the emails in Defendant's Exhibits 6 or 7 states that gender discrimination was a factor in either woman's hostile work environment claims; in fact, Ms. Holmes complained of maltreatment by both her male supervisor and a female coworker. However, Ms. Santos adds that she herself "reported that gender discrimination was an issue with respect to all three Mexico Resident Legal [Advisors] who complained about [Senior RLA Kevin] Sundwall." Pl.'s SOF at 3. She cites her own declaration and that of Laurel Glenn, an Administrative Officer who "serv[ed] as a liaison between OPDAT management, i.e., Mr. Alexandre and Ms. Ehrenstamm, and other OPDAT staff." Decl. of Laurel Glenn (Glenn Decl.) [Dkt. 20] ¶ 3. Ms. Santos reports that the RLA complaints "were presented as gender discrimination issues" when she met with OPDAT Director Carl Alexandre and Deputy Director Faye Ehrenstamm. Decl. of Verna Santos (Santos Decl.) [Dkt. 20] ¶ 4. Ms. Glenn states that she was aware of the complaints referenced by Ms. Santos and declares that "[r]egardless of what was committed to writing regarding Ms. Mercado-Rios' complaint, it was considered to be and treated within OPDAT's main office as a complaint alleging, among other things, a gender-based hostile environment." Glenn Decl. ¶ 6. Deputy Director Ehrenstamm stated in an Affidavit by Interrogatory that she "ha[d] no recollection Ms. Santos expressing concerns that Kevin Sundwall sexually discriminated and/or harassed some of [Ms. Santos's] female subordinates" and that email communications with Ms. Santos discussed a possible hostile work environment, but contained "no mention of sexual discrimination." Def.'s Ex. 2 [Dkt. 24-1] at 6. It is, therefore, disputed whether gender discrimination was mentioned as part of any complaint of a hostile work environment.
On August 6, 2012, Renee Caputo, OPDAT's Director for Human Capital, sent an email to Tiffani Williams, an Employee Relations Specialist on her staff, directing Ms. Williams to talk to RLAs Mercado-Rios and Holmes regarding "treatment by their supervisor," Mr. Sundwall. Def.'s SOF ¶ 5. Ms. Santos insists that this fact is disputed but only adds that "Human Capital routinely investigates . . . whether there has been conduct that could violate Title VII" of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Pl.'s SOF at 3.
Numerous emails were exchanged among Mses. Santos, Mercadeo-Rios, and Holmes and the Human Capitol staff, and Mses. Mercadeo-Rios and Holmes were interviewed by that staff. Def.'s SOF ¶ 6. Defendants submit numerous emails and other documents as exhibits and none refers to gender as the basis for Mr. Sundwall's conduct. Def.'s Ex. 9 [Dkt. 19-1] at 50-162 ().4 While Ms. Santos again asserts that this fact is disputed, she essentially admits the limitations of the emails—"[r]egardless of what was committed to writing"—but argues that "the nature of the complaints" was well known and gender discrimination issues "were discussed during meetings regarding these complaints among OPDAT management, at least the ones attended by Virna Santos." Pl.'s SOF at 4. Thus, despite the relative clarity of the written documents and email communications, most of which do not allege gender discrimination, Ms. Santos repeatedly asserts that gender discrimination was raised and discussed during meetings.5
Ms. Caputo recommended that senior management talk with Mr. Sundwall about the personnel issues in his office in Mexico City and, on August 29, 2012, Deputy Assistant Attorney General (DAAG) Bruce Swartz and Counselor to the Assistant Attorney General Bruce Ohr met with Mr. Sundwall and counseled him regarding the concerns of his subordinates. See Def.'s SOF ¶¶ 7-8; Pl.'s SOF at 4.
Ms. Santos met with Director Alexandre and Deputy Director Ehrenstamm in February 2013 for her mid-year performance review. At that time, Director Alexandre told her that "he intended to post a vacancy announcement for the Regional Director for LAC, but that she would continue to have a role at OPDAT." Def.'s SOF ¶ 9; see also Santos Decl. ¶ 10 ().
Director Alexandre left OPDAT in February 2013 and Ms. Ehrenstamm became Acting Director until she was selected to serve as the new Director in September 2013. Def.'s SOF ¶ 10. "Following Alexandre's departure, [Ms. Santos] remained in her position as Regional Director" for LAC. Id. Ms. Santos indicates that she disputes this fact but, more accurately, she adds allegations that her "working conditions changed dramatically at the end of 2012, after she reported the gender discrimination complaints." Pl.'s SOF at 5. In this regard, she complains that she was "only provisionally the Regional Director of LAC, and OPDAT was recruiting her replacement," id. at 6, and that she was "capriciously scrutinized, investigated, bypassed, and unfairly evaluated." Id.
Ms. Santos' term appointment as Regional Director for LAC, expired on March 12, 2013, but was extended for two three-month periods—until June 13, 2013, and then until September 30, 2013. Def.'s SOF ¶¶ 11-12. Ms. Santos' term was then further extended for one year, until September 30, 2014. Id. ¶ 16.6
On July 26, 2013, Ms. Santos reported to Christopher Lehmann, her first-line supervisor, and Acting Director Ehrenstamm that Paul Vaky, an OPDAT attorney assigned to Bogotá, had touched her lower back in a way she thought improper. Def.'s SOF ¶ 13 (). Ms. Santos disputes only the description, saying that she "reported that the touching was inappropriate and of a sexual nature, and that Mr. Vaky's hand was at the very lowest part of her back where she felt his fingers on her buttocks." Pl.'s SOF at 6.
Acting Director Ehrenstamm and Director of...
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