Small v. Office of Congressman Henry Cuellar

• Decision Date: 10 September 2020
• Docket Number: Case No. 1:19-cv-01314 (TNM)
• Citation: 485 F.Supp.3d 275
• Parties: Kristie SMALL, Plaintiff, v. OFFICE OF CONGRESSMAN HENRY CUELLAR, Defendant.
• Court: U.S. District Court — District of Columbia

485 F.Supp.3d 275

Kristie SMALL, Plaintiff,

v.OFFICE OF CONGRESSMAN HENRY CUELLAR, Defendant.

Case No. 1:19-cv-01314 (TNM)

United States District Court, District of Columbia.

Signed September 10, 2020

Alan Lescht, Krista Kate Wallace, Tamara Slater, Sara N. McDonough, Alan Lescht & Associates, P.C., Washington, DC, for Plaintiff.

Ann R. Rogers, Trevor St. George Blake, II, Mark Stewart Hayes, Russell Hayes Gore, U.S. House of Representatives, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

TREVOR N. McFADDEN, United States District Judge

For four months, Kristie Small worked as Deputy Chief of Staff in the Office of Congressman Henry Cuellar (the "Office") until Cuellar terminated her employment. Small claims he fired her because she became pregnant and asked for maternity leave. The Office disputes this and moves for summary judgment. It has compelling arguments that nothing unlawful happened here. But the Court's limited role at this stage is to decide whether the record shows any genuine dispute of material fact. It does, so the Court will deny the Office's motion except as to the pregnancy discrimination claim, which is duplicative of the sex discrimination claim.

I.

Small has worked on Capitol Hill since 2005. She started out as a staff assistant and scheduler, then as a legislative assistant, and later as staffer for the House Administration Committee. Pl.’s Statement of Disputed Material Facts ("PSDMF") ¶¶ 4–5, ECF No. 22-1. In 2018, Cuellar hired her to be his Deputy Chief of Staff. Def.’s Statement of Undisputed Facts ("DSUF") ¶¶ 27–28, ECF No. 20-3; PSDMF ¶ 15. The Chief of Staff position was vacant, so Small was the highest-ranking staffer in the Office. DSUF ¶¶ 27, 33; PSDMF ¶ 20. Her duties included serving as Cuellar's principal liaison, supervising other employees, reviewing work product, and managing the office budget and operations. DSUF ¶ 32; PSDMF ¶ 17.

Small's first day on the job was June 1, 2018. DSUF ¶ 29; PSDMF ¶ 19. About a month later, she requested one day of sick leave, marking "pregnancy" as the reason. Def.’s Attach. G at 40, ECF No. 20-10.¹ Cuellar approved the request. Id. About a month after that, Small sent Cuellar a request for maternity leave, along with a schedule of her prenatal appointments. Pl.’s Ex. 22 at 2–4, ECF No. 21-22. Cuellar responded the same day, saying:

Ok let's talk about this and probation period for you as I have for every new employee. Trying to finish all items for tomorrow and for Friday. Need your help. Also, I have two interviews tomorrow morning and no one has asked: What do you need? Need your help.

Pl.’s Ex. 23 at 2, ECF No. 21-23.

Small claims this was the first she had heard of a probationary period, and Cuellar later informed her that probation ran for 90 days. PSDMF ¶ 57; Am. Compl. ¶ 42, ECF No. 5. The two met on September 5 to discuss how Small had performed during her first 90 days. DSUF ¶ 63; PSDMF ¶ 69. A transcript of this meeting is in the record. Def.’s Attach. G at 25–30. Cuellar gave Small some positive feedback, but he also identified three areas that required improvement: (1) failing to take things "off his plate," such as reviewing press releases thoroughly and keeping tabs on other staffers; (2) failing to train staff adequately; and (3) disregarding his instructions. Id. at 26. He then extended the probationary period by 30 days, saying that he wanted to see if Small could improve. Id.

Small expressed agreement with Cuellar's assessment, though she now claims his critiques were unfounded and that she did not push back for fear of angering him. Id. at 29; PSDMF ¶ 76. She also asked for a pay raise, citing the high cost of putting two children in daycare. Def.’s Attach. G. at 28. Cuellar demurred, suggesting they revisit the issue in 30 days. Id. at 28–29.

The two scheduled a phone call on October 16 to discuss Small's performance during the 30-day extended probationary period. DSUF ¶ 91; PSDMF ¶ 86. On this call, Cuellar told Small he was terminating her because she had failed to address the performance issues that he identified at their September meeting. DSUF ¶ 92; PSDMF ¶ 87; Pl.’s Opp'n at 46, ECF No. 21; Def.’s Reply at 22–23, ECF No. 23.

After exhausting her administrative remedies under the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301 et seq. , Small sued. Am. Compl. ¶¶ 9–15; Answer ¶¶ 9–15, ECF No. 11. She brings four claims under the CAA, which incorporates the protections of Title VII and the Family and Medical Leave Act ("FMLA"): sex discrimination (Count I); pregnancy discrimination (Count II); FMLA interference (Count III); and FMLA retaliation (Count IV). Am. Compl. ¶¶ 61–80; see 2 U.S.C. §§ 1311(a)(1), 1312.² The Office moves for summary judgment on all counts, and its motion is ripe for disposition. Def.’s Mot. at 1, ECF No. 20.

II.

Summary judgment is appropriate if "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 fact is material if it "might affect the outcome of the suit under the governing law" and a dispute 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of identifying those portions of the record that show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once it has met this burden, the nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (cleaned up). Courts "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor." Mastro v. Potomac Elec. Power Co. , 447 F.3d 843, 850 (D.C. Cir. 2006).

III.

A.

To begin, the Court grants the Office's motion as to Count II (pregnancy discrimination), which is duplicative of Count I (sex discrimination). Small brings both claims under the CAA, which protects covered employees from "discrimination based on ... race, color, religion, sex, or national origin, within the meaning of [Title VII]." 2 U.S.C. § 1311(a)(1). The substantive provisions of Title VII list "sex" as a protected characteristic, not "pregnancy." See, e.g. , 42 U.S.C. § 2000e–2(a)(1). But the statute defines sex discrimination to encompass pregnancy discrimination: "The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy." Id. § 2000e(k).

In other words, Title VII's prohibition on sex discrimination is "a prohibition that includes discrimination on the basis of pregnancy." Harris v. Gonzales , 488 F.3d 442, 443 (D.C. Cir. 2007). There is thus no need for a separate "pregnancy discrimination" claim.

In seeking summary judgment on Count II, the Office makes all these points. Def.’s Mem. at 43–44, ECF No. 20-1. Small does not respond, conceding the issue. See Pl.’s Opp'n at 47–50. Indeed, her arguments do not distinguish between Counts I and II, and she nowhere explains how she suffered sex discrimination apart from the fact of her pregnancy. See id. at 1–2, 21–50. So the Court will grant summary judgment for the Office on Count II, on the understanding that this will not prejudice Small. Because sex discrimination includes pregnancy discrimination, the Court can explain to the jury that if the Office fired Small because she was pregnant, she wins on Count I.

B.

Discrimination claims involve a familiar burden-shifting framework. The plaintiff has the initial burden of making out a prima facie case of discrimination.

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The employer then must "articulate some legitimate, nondiscriminatory reason" for its decision. Id. If the employer does so, the burden shifts back to the plaintiff to establish that the proffered reason was pretext for discrimination. Id. at 804, 93 S.Ct. 1817.

But once the employer articulates a legitimate, nondiscriminatory reason, the 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). Instead, the case becomes all about pretext. The Court "must 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 the basis of race, color, religion, sex, or national origin?" Id.

There are several ways an employee can meet this burden: (1) establishing that the employer treated individuals not in the same protected category "more favorably in the same factual circumstances"; (2) showing that the employer "is making up or lying about the underlying facts that formed the predicate for the employment decision"; (3) pointing to "changes and inconsistencies in the stated reasons for the adverse action"; (4) showing that the employer failed "to follow established procedures or criteria"; (5) establishing that the employer generally treated employees in the protected category poorly; and (6) pointing to "discriminatory statements by the decisionmaker." Id. at 495 & n.3. This list is not exhaustive. See id.

The Office advances a legitimate, nondiscriminatory reason for Cuellar's decision to fire Small: her poor job performance, which "manifested in a variety of ways," including her inadequate review of written work product and her failure to train staffers effectively. Def.’s Mem. at 14; Def.’s Reply at 6. Plenty of admissible evidence makes this explanation facially credible, so the Office has met its burden of production. See Figueroa v. Pompeo , 923 F.3d 1078, 1087–88 (D.C. Cir. 2019). Small does not argue otherwise and instead focuses solely on...