Guillen-Perez v. District of Columbia Department of Employment Services

• Court: District Court, District of Columbia
• Decided: November 26, 2019
• Docket: Civil Action No. 2017-2086
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VIRGINIA GUILLEN-PEREZ,

Plaintiff,

v. Case No. 17-cv-2086 (CRC)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff Virginia Guillen-Perez (“Guillen”) worked as a call-center assistant in the

District of Columbia Department of Employment Services (the “Department”) from 2012 until

2016. After she was terminated purportedly because of customers’ complaints about her poor

customer service, she brought suit against the District—as well as the Department and its

mayor—alleging that they had discriminated and retaliated against her, in violation of various

federal and D.C. laws. On April 6, 2018, the Court granted in part and denied in part

Defendants’ motion to dismiss. See Mem. Op. & Order, ECF No. 16. The remaining parties

proceeded to discovery on Guillen’s remaining claims of discrimination on the basis of race and

national origin and retaliation, in violation of Title VII of the Civil Rights Act, and interference

with and retaliation for taking protected medical leave, in violation of the federal and D.C.

Family and Medical Leave Acts. Discovery now complete, the District moves for summary

judgment on those claims. The Court will deny the motion with respect to certain aspects of

Plaintiff’s Title VII discrimination and retaliation claims and grant it as to the rest. I. Background

A. Factual Background

Guillen is a Hispanic woman who immigrated to the United States from the Dominican

Republic. In September 2012, the Department hired Guillen on a term basis as a Clerical

Assistant in the Office of Unemployment Compensation (“OUC”) at Grade 5, Step 1 with an

annual wage of $30,577. Def. Stmt. Facts ¶¶ 1-3. Guillen’s initial appointment was for thirteen

months and had to be renewed by the Department every six months. As Guillen’s term

appointment was repeatedly renewed, she received annual step increases to her salary. Id. ¶ 4.

The Department initially assigned Guillen to work in the American Jobs Center, but

quickly reassigned her in December 2012 to work in the Unemployment Insurance Call Center

(“Call Center”). Madison Dep. 15:20-16:1. There, Guillen was responsible for answering calls

and responding to questions from claimants and applicants for unemployment benefits. Warrick

Decl. ¶ 2; Guillen Dep. 16:13-17:7. At the time of Guillen’s transfer, the Call Center was staffed

by twelve to fifteen other representatives, two of whom were Hispanic and the rest of whom

were African American. Guillen Dep. 21:17-22:8.

1. FMLA Leave

In July 2014, Guillen requested FMLA leave after being diagnosed with breast cancer,

which was approved by her supervisor at the time, Helen Carnavale, and the Department.

Guillen Dep. 109:10-110:17. Guillen underwent surgery and took FMLA leave from October

through December 2014. Id. 110:17. When Guillen returned to work in January 2015,

2 Xzaquoinett Warrick, an African American woman, had been hired as the new supervisor for the

Call Center.

Warrick and Guillen apparently did not get along. Guillen had a number of follow-up

medical appointments, for which she requested and received approval for leave to attend.

Warrick Decl. ¶ 21; Ex. 1, Guillen Dep. 113:6-13. According to Guillen, “Warrick was not

happy that [she] had been away from work on leave and continued to be having follow-up

doctor’s appointments.” Pl. Resp. Interrog. ¶ 12. In June 2015, Warrick emailed Guillen her

productivity report for the week of May 25, 2015, in which she commented “Your CALLS

ANSWERED decreased (due to your absences). One MISSED CALL[] and THE LOWEST

HOLD TIME. Good job overall.” Def. Mot. Summ. J., Exh. 3 (emphasis added). According to

Guillen, Warrick also altered the attendance reflected on her timesheets. Guillen Dep. 74:5-77:1.

2. Race and National Origin Discrimination

Guillen also complained to Warrick about other perceived double standards in the

workplace, such as Warrick permitting African-American coworkers to show up late to work or

to take unscheduled breaks but requiring Guillen to strictly follow the work schedule. For

example, in July 2015, Warrick sent Guillen an email advising her to be “more cognizant” of her

arrival time, which was scheduled to be 8:30 a.m. each day, as Warrick had noticed that

Guillen’s “arrival time ha[d] varied from [8:31 a.m. to 8:33 a.m.] for the past two weeks.” Pl.

Opp., Exh. 4. By contrast, Guillen contends that Warrick permitted Charmaine Harris, an

African-American co-worker with whom Warrick was friendly, to have a more relaxed arrival

3 and break schedule. See id., Exh. 11 at 4 (tracking by Guillen of Harris’s sporadic arrival and

break times).

Around that same time period, Guillen also began complaining about receiving less pay

than her African-American co-workers. According to Guillen, she was hired at Grade 5, while

all other representatives in the Call Center were designated Grade 7 or above. Guillen Dep.

36:18-22. On February 27, 2015, Guillen filed a complaint against the Department with the

Equal Employment Opportunity Commission (“EEOC”). The complaint alleged that the

Department had violated the Equal Pay Act by paying all other representatives at the Call Center

an annual salary of $40,000 or more, but paying Guillen an annual salary of, as of October 2014,

only $34,000. Pl. Opp., Exh. 5 at 2. The EEOC dismissed Guillen’s complaint on March 4,

2015 after being unable to conclude that the information that it had obtained from its

investigation established any statutory violation. Id.

Guillen also raised concerns about her unequal pay directly with the Department. In a

“[o]ne-on-one” meeting with Warwick in July 2015, Guillen requested a “pay increase,” to

which Warwick responded that there was “nothing she c[ould] do about it.” Guillen Dep. 79:4-

8; Warrick Decl. ¶ 23; Pl. Opp., Exh. 11 at 7. Guillen told Warwick that she was “going to go

[through] other channels to request [a promotion] because [she was] doing the [same] job,” to

which Warwick responded, “fine.” Guillen Dep. 81:2-11.

Guillen then wrote to Monnikka Madison, who was the Office’s Chief of Benefits, on

August 1, 2015. Id. 81:7-11; Madison Dep. 10:3-11:1. Guillen explained that she “strongly

believe[d] it [wa]s appropriate for [her] to be formally promoted to Grade 7 . . . because [she]

d[id] the same work [that] everyone else in the Call Center d[id].” Pl. Opp., Exh. 8. Guillen

emphasized the need for “internal equality in the workplace” and that she had been working at

4 the Call Center for three years and had an additional language skill. Id. Madison promptly

forwarded the email to Warwick. Madison Dep. 21:7-19.

Two days later, on August 3, 2015, Warwick sent Guillen an Advance Written Notice of

Proposed Suspension of Ten Days. Def. Mot. Summ. J., Exh. 10; Guillen Dep. 81:10-11. The

Notice alleged that Guillen had engaged in “neglect of duty, [u]nreasonable failure to give

assistance to the public, incompetence and insubordination” in connection with three separate

incidents—taking place on May 20, July 8, and July 16, 2015—in which customers complained

about Guillen being rude and hanging up on them. Def. Mot. Summ, J., Exh. 10 at 3. Guillen’s

union counsel responded that the proposed suspension was “unduly harsh.” Pl. Opp., Exh. 10.

Guillen filed an employment grievance with the Department on September 28, 2015

complaining of the Department’s purported retaliation against her, her unequal pay, and

Warrick’s unfavorable treatment of her. Pl. Opp., Exh. 11. Meanwhile, Guillen’s term

appointment was up for renewal. Before the proposed suspension was resolved, the Department

decided not to renew Guillen’s appointment. The “standard protocol” was for an employee’s

direct supervisor to justify an employee’s termination and for the Chief of Benefits to sign off on

that decision. Madison Dep. 24:1-6. Warrick made the recommendation to Madison not to

renew Guillen’s term appointment in “late August 2015,” and Madison signed off. Id.; Warrick

Decl. ¶ 20. Guillen received official notice of her termination on October 9, 2015. Def. Mot.

Summ. J., Exh. 11.

B. Procedural History

Following her termination, Guillen filed a charge with the D.C. Office of Human Rights

(which was deemed cross-filed with the EEOC due to the work-share agreement between the two

agencies) alleging various violations of District and federal law. After receiving a right to sue

5 letter from the EEOC, Guillen brought suit in this Court against the District of Columbia, the

Department, and District Mayor Muriel Bowser.

The Defendants moved to dismiss, which the Court granted in part and denied in part.

See Mem. Op. & Order, ECF No. 16. The Court dismissed the Department and Mayor Bowser

as defendants. Left standing were Guillen’s (1) Title VII race and national origin discrimination

claims, Am. Compl. Counts 1-2; (2) Title VII retaliation claim, id. Count 5; (2) federal and D.C.

Family and Medical Leave Act interference and retaliation claims, id. Counts 8-10. The parties

proceeded to discovery on those claims, and the District now moves for summary judgment.

II. Legal Standard

Courts must grant summary judgment where “the movant shows that 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). The movant bears the burden of demonstrating the “absence of a genuine issue

of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c)(1).

In making that determination, the Court must “view the facts and draw reasonable inferences ‘in

the light most favorable to the [non-moving] party . . . .’” Scott v. Harris, 550 U.S. 372, 378

(2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). The

non-movant may not, however, rely on “mere allegations” or conclusory statements to defeat a

motion for summary judgment. Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006).

III. Analysis

A. Counts 1 and 2: Race and National Origin Discrimination

Title VII makes it an “unlawful employment practice” for an employer to “fail or refuse

to hire or to discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

6 individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Guillen

alleges that the District unlawfully discriminated against her because she was Hispanic, which is

a protected class under Title VII. See Figueroa v. Pompeo, 923 F.3d 1078, 1083 (D.C. Cir.

2019) (“Under established law, Title VII covers discrimination based on Hispanic or Latino

ethnicity, a distinction ‘as “odious” and “suspect” as those predicated’ on race, color, and

national origin.” (quoting United States v. Doe, 904 F.2d 16, 21-22 (D.C. Cir. 1990)).

The “statutory text establishes two elements for an employment discrimination case: (i)

the plaintiff suffered an adverse employment action (ii) because of the employee’s race, color,

religion, sex, or national origin.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.

Cir. 2008). As to the first element, “not everything that makes an employee unhappy is an

actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). An

“adverse employment action” must be “a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.

Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)).

As to the second element, a plaintiff may defeat a motion for summary judgment with

“either direct or circumstantial evidence” of “intentional discrimination.” Dunaway v. Int’l Bd.

of Teamsters, 310 F.3d 758, 763 (D.C. Cir. 2002) (internal quotation marks omitted). If the

plaintiff relies upon the latter, the Court turns to the familiar three-part framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): first, the plaintiff must establish a

prima facie case of discrimination; second, the employer may rebut the plaintiff’s prima facie

case by providing a nondiscriminatory reason for the adverse employment decision; and, third,

the Court must then assess whether a reasonable jury could infer from the plaintiff’s evidence

7 that the employer’s proffered reason is merely pretext for discrimination. Green v. Johnson, 208

F. Supp. 3d 307, 310 (D.D.C. 2016), aff’d sub nom. Green v. Nielsen, No. 16-5295, 2018 WL

1391714 (D.C. Cir. Mar. 1, 2018); see also McDonnell Douglas, 411 U.S. at 802-05; Brady, 520

F.3d at 494.

1. Warrick’s Negative Treatment of Guillen

To the extent that Guillen’s discrimination claims rest on Warwick’s alleged negative

treatment of her—such as her “punitive scheduling and increased scrutiny” of Guillen’s arrival

time, alteration of her timesheets, or verbal criticism—Guillen has not shown that any of those

actions rise to the level of “adverse employment actions.” Pl. Opp. 26-27; Def. Mot. Summ. J.

11; Am. Compl. ¶¶ 30, 34; Guillen Dep. 45:8-46:7, 74:5-75:2, 75:13-77:20. There is no

evidence that any of those actions engendered “materially adverse consequences affecting the

terms, conditions, or privileges of employment or future employment opportunities such that a

reasonable trier of fact could find objectively tangible harm.” Douglas, 559 F.3d at 552 (internal

quotation marks omitted); see, e.g., Morales v. Gotbaum, 42 F. Supp. 3d 175, 190 (D.D.C. 2014)

(noting that “giving negative performance feedback . . . do[es] not constitute adverse

employment action[]” (internal quotation marks omitted)). Nor is there evidence that scrutiny of

Guillen’s arrival time, productivity reports, or timesheets factored into the Department’s decision

to terminate her employment or had any other tangible effect on her or her employment. See

generally Burlington Indus., Inc. v. Ellerth 524 U.S. 742, 762 (1998) (“A tangible employment

action in most cases inflicts direct economic harm.”). These incidents reflecting Warrick’s

negative treatment of Guillen thus do not constitute “adverse employment actions” for purposes

of Title VII. See Brady, 520 F.3d at 493.

8 Accordingly, the Court will grant summary judgment to the District on the aspects of

Guillen’s Title VII discrimination claims in Counts 1 and 2 that are based on those actions. The

Court will focus its McDonnell-Douglas analysis on the Department’s failure to promote Guillen

and termination of her employment, which, the District concedes, undoubtedly constitute

“adverse employment actions” cognizable under Title VII. 1 See Am. Compl. ¶ 86; Douglas,

559 F.3d at 552 (listing “firing” and “failing to promote” as “significant change[s] in

employment status” (quoting Taylor, 350 F.3d at 1293)).

2. Failure to Promote

Guillen contends that the District violated Title VII by refusing to promote her from

Grade 5 to Grade 7. Am. Compl. ¶ 86; Guillen Dep. 77:21-78:8. Guillen “does not claim she

sought promotion into a vacant position”; “[r]ather, she claims, with her current responsibilities,

she should have received an increase in grade and salary.” Taylor, 350 F.3d at 1294. To make

out a prima facie case under such circumstances, Guillen “must show that she sought and was

denied a promotion for which she was qualified, and that ‘other employees of similar

qualifications . . . were indeed promoted at the time the plaintiff’s request for promotion was

denied.’” Id. (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)) (alteration in

original).

Guillen fails to establish a prima facie case. As to Guillen’s burden to show that she was

qualified for a promotion to Grade 7, there is nothing in the record from which the Court could

1 In its April 6, 2018 Memorandum Opinion and Order, the Court dismissed Guillen’s Title VII claims in Counts 1 and 2 to the extent that they were based on alleged negative “performance evaluations” because Guillen had not adequately exhausted her remedies as to those claims. See Mem. Op., ECF No. 16, at 11-12 (Apr. 6, 2018); Am. Compl. ¶ 86.

9 discern the Department’s specific criteria for promoting an employee to Grade 7 or whether

Guillen met those criteria. Harris testified, for example, that she came into the Call Center at

Grade 7 because she had previously been employed by the federal government and the

Department was required to match her previous salary. Harris Dep. 26:6-14. Guillen did not

have similar prior experience, and the record does not show what level of experience was

required for Guillen to be promoted to Grade 7.

Even assuming that Guillen was qualified to be promoted to Grade 7 after working at the

Department for three years, Guillen has not shown that any other employee with similar

qualifications was promoted at the time that her request for a promotion to Grade 7 was denied.

See Taylor, 350 F.3d at 1294; Cones v. Shalala, 199 F.3d 512, 517 (D.C. Cir. 2000). In fact,

according to the Department, there was a city-wide freeze on promotions during Guillen’s tenure

at the Department, during which the only path to promotion to a higher grade level was through

application to an open position. 2 See Def. Resp. Interrog. ¶ 13; Def. Stmt. of Facts ¶¶ 66-68.

Consistent with that characterization, Harris testified that “someone’s grade gets bumped up”

only “[w]hen they apply for a new position . . . within the District Government. It’s not given.

You have to apply.” Harris Dep. 21:18-22:2.

To rebut this evidence, Guillen merely speculates that “others were promoted . . . from

time to time,” but does not identify any particular employee that was promoted or offer any

evidence as to whether any such employee was similarly situated to her. Guillen Dep. 78:22-

2 Guillen testified that she applied in 2013 to a vacant position in a different unit within the Department and was denied the position. Guillen Dep. 39:22-41:8. But, Guillen does not allege that the relevant decisionmakers denied her that position because of her race or national origin or that they were the same decisionmakers as those who refused her request in July 2015 for a promotion to Grade 7. The Court thus does not see how the 2013 non-selection provides a viable basis for Guillen’s failure to promote claim.

10 79:17. This “mere speculation[] [is] insufficient to create a genuine issue of fact” as to whether

other similarly situated employees were promoted at the time that Guillen’s request for a

promotion was denied. Brown v. Brody, 199 F.3d 446, 459 (D.C. Cir. 1999) (internal quotation

marks omitted); Taylor, 350 F.3d at 1294.

Guillen thus fails to meet her burden to establish a prima facie case with respect to her

failure to promote claim. Accordingly, the Court will grant summary judgment to the District on

Counts 1 and 2 to the extent that Guillen’s Title VII discrimination claims are based on the

Department’s failure to promote her.

3. October 2015 Termination

Guillen also contends that the District violated Title VII by terminating her employment

in October 2015. Am. Compl. ¶¶ 84-86, 90-92. The District contends that it “chose not to renew

[Guillen’s] term appointment based on her continued customer service failures . . .” Def. Resp.

Interrog. ¶¶ 9, 12. The D.C. Circuit has held that “[w]hen the employer properly presents a

legitimate, nondiscriminatory reason [for the adverse employment action], the District Court

‘need not—and should not—decide whether the plaintiff actually made out a prima facie case’

because it better spends its limited resources on assessing the third [McDonnell-Douglas]

prong.” Figueroa, 923 F.3d at 1087 (quoting Brady, 520 F.3d at 494).

“But the Brady shortcut applies only if . . . the employer [meets] its burden, at the second

prong, ‘to articulate a legitimate, nondiscriminatory reason for its action.’” Id. (quoting Wheeler

v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016)). The District identifies three

specific incidents to support its justification for firing Guillen: (1) an incident on May 20, 2015,

in which a customer emailed a complaint to the Department stating that Guillen was rude, talked

over her, and eventually hung up on her in response to an inquiry about a debit card, see Def.

11 Mot. Summ. J., Exh. 8; (2) an incident on July 8, 2015, in which a customer called the

Department to complain about Guillen, after an escalated verbal exchange, hanging up on her

when asked for her name, see id., Exh. 10 at 2; (3) an incident on July 16, 2015, in which a

customer called the Department to complain about Guillen being rude and hanging up on him in

response to an inquiry about a certification form, see id. The record contains recordings of the

calls at issue, see id., Exh. 9, an email documenting the complaint relating to one of those

incidents, see id., Exh. 8, a copy of the Advance Written Notice of Proposed Suspension based

on those incidents, see id., Exh. 10, and witness testimony observing Guillen “getting loud on the

phone and disconnecting the call,” see Harris Dep. 48:7-10. The Court thus concludes that the

District has provided an “‘adequate’ evidentiary proffer” and a sufficiently “clear and reasonably

specific explanation” for the decision to terminate Guillen’s employment, such that the Court

may “properly move past the second step.” Figueroa, 923 F.3d at 1087 (internal quotation marks

omitted).

The “central question” then becomes whether “the employee produced sufficient

evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory . . . reason

was not the actual reason and that the employer intentionally discriminated . . . against the

employee.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (quoting Brady, 520 F.3d at

494). There is no dispute that the calls at issue occurred or that customers complained about

them. Guillen contends, however, that such customer complaints were routine within the

Department and that Warrick pulled the call recordings in order to drum up a pretext for

terminating her employment. The Court concludes that Guillen has offered sufficient

“circumstantial evidence” from which a reasonable jury could infer that the “employer’s stated

12 reason . . . was not the actual reason” for her termination “and that the real reason was prohibited

discrimination or retaliation.” Id. at 40.

For one, the record reflects a genuine dispute as to whether the Department “treated

other, similarly situated employees better.” Id. Guillen testified that “everybody got

complaints” from customers because “it happened often that claimants due to the circumstances

they are going through . . . are upset,” but “[n]obody was disciplined” for those complaints.

Guillen Dep. 84:1-86:15. According to Guillen, “there was one complaint that went all the way

down to the Mayor’s office and that person was never disciplined.” Id. 84:3-5.

Defendant does not directly dispute that there were Department employees that received

customer complaints that were not terminated. Warrick’s declaration that she “recommended the

termination of [one] African-American subordinate, because she, like Plaintiff, hung up on

claimants and was argumentative with them” in 2016, Warrick Decl. ¶ 26, is insufficient to rebut

Guillen’s testimony that others who received similar customer complaints while she worked

there from 2012 to 2015 were not terminated. See Steele v. Mattis, 899 F.3d 943, 950 (D.C. Cir.

2018) (“[A]t the summary judgment stage, [a] ‘he said, she said’ credibility determination must

be resolved in favor of [the non-moving party].”). The fact that termination “didn’t happen to

others” who received customer complaints supports Guillen’s theory that the real reason for her

termination was “bias against Latinos.” Guillen Dep. 83:18-84:5.

The record also contains evidence that the District “failed to ‘follow established

procedures or criteria’” with respect to Guillen’s termination. Allen, 795 F.3d at 40 (quoting

Brady, 520 F.3d at 495 n.3). The undisputed record shows that the District has a progressive

discipline policy, which provides that an employee accused of misconduct should receive: (1) a

verbal warning; (2) a written warning; (3) a suspension; and (4) termination. See Pl. Opp. 23;

13 Harris Dep. 41:14-43:8; Def. Resp. Interrog. ¶ 14. Guillen testified that she was not informed—

in any form, let alone a formal verbal or written warning—about the customer complaints

relating to the July 8 and July 16 calls until she received the notice of proposed suspension on

August 3. See Guillen Dep. 97:15-16; Pl. Opp., Exh. 11 at 5. And, in another apparent departure

from the established progressive discipline policy, the undisputed record shows that Guillen

never actually served the proposed suspension prior to her termination in October 2015.

The District contends that Guillen “was provided feedback, coaching, training and ample

opportunity to improve her customer service delivery” but failed to do so. Def. Resp. Interrog.

¶ 12; Def. Mot. Summ. J., Exh. 10 at 2; Warrick Decl. ¶ 18. The only evidence in the record of

any customer service counseling is a single email concerning the May 20 call, in which Warrick

forwarded the customer’s complaint to Guillen with a statement, “This behavior is

unacceptable.” Def. Mot. Summ. J., Exh. 8. But, as the Union’s response to the Notice of

Proposed Suspension noted, “[a]t no time did the supervisor provide any instructions on how to

handle future calls with claimants or that Ms. Guillen w[ould] be disciplined if this type of

behavior continue[d].” Pl. Opp., Exh. 9 at 3. There is no evidence that Warrick or anyone else

in the Department communicated with Guillen about the July 8 or July 16 calls. The record thus

reflects a genuine dispute as to whether the District departed from its established progressive

discipline policy before issuing Guillen the proposed suspension and eventually firing her.

To be sure, the record contains evidence that the Department sometimes departed from its

progressive discipline policy when dealing with particularly egregious misconduct. Harris

testified, for example, that another non-Hispanic African-American employee, Ms. Tierra, was

terminated for “cussing a customer out over the phone.” Harris Dep. 49:5-19. After the

customer “called back in to complain,” management “pulled the tape, they heard the

14 conversation, and they walked her out” that day. Id. 50:3-19. The fact that Guillen was not

walked out on the day of the customer complaints but was terminated several months thereafter

suggests that the Department did not consider Guillen’s customer service failures so egregious as

to warrant immediate termination—and perhaps, not egregious enough to warrant termination at

all.

Finally, a reasonable jury might infer pretext from the Department’s “general treatment”

of Hispanic employees. Brady, 520 F.3d at 495 n.3. Much of Guillen’s briefing is focused on

Warrick’s preferential treatment of non-Hispanic employees. For example, Warrick emailed

Guillen on July 9, 2015 chastising her for arriving between “8:31 [a.m.] and 8:33 [a.m.] for the

past two weeks,” which was past her designated start time of 8:30 a.m. Pl. Opp., Exh. 7.

Meanwhile, Harris, an non-Hispanic African-American woman, was permitted to arrive between

8:45 a.m. and 9:00 a.m. 3 Id., Exh. 11. In another incident, as the call center employees were all

packing up to leave a few minutes before 5:00 p.m., Warrick screamed at Guillen in front of

everyone, “Virginia [it] is 4:59. There is one minute left,” while another non-Hispanic African-

American employee, Vincent James, was permitted to depart early. Id.

Moreover, the record shows that, during Guillen’s employment, the call center employed

about fifteen African-American men and women and three Hispanic women—Guillen, Ana

Sagastume, and Loyda DeCosta. According to Guillen, Warrick “cleared the department” of

Hispanics by terminating her and transferring the only other Hispanic women to the American

Jobs Center in July 2015 and September 2015. Guillen Dep. 83:18-21. The District contends

3 Although Harris testified that Warrick permitted this schedule to accommodate Harris’s need to take her son to school, Guillen points out that no similar accommodation was offered for her medical care needs.

15 that it transferred the other two Hispanic women “due to the increase of high customer traffic and

staff shortage at the American Jobs Center.” Warrick Decl. ¶ 30. But, the District does not

explain why it chose those particular two women to be transferred, and a reasonable jury could

infer from the fact that Sagastume and DeCosta’s transfer and Guillen’s termination occurred

within a few months of each other that those actions were connected to their Hispanic ethnicity.

Taken as a whole, the Court concludes that the record contains sufficient evidence from

which a reasonable jury could conclude that the Department did not fire Guillen because of her

customer service failures but because she was Hispanic. See Allen, 795 F.3d at 40. 4 The Court

thus denies summary judgment on Counts 1 and 2 to the extent that Guillen’s Title VII

discrimination claims are based on her termination.

B. Count 5: Title VII Retaliation

Guillen also alleges that the District “engaged in unlawful retaliation” against her “for

opposing discrimination and participating in protected activity” under Title VII. Am. Compl.

¶ 100. Title VII prohibits employers from retaliating against employees for “oppos[ing] any

practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). “To

prove unlawful retaliation, a plaintiff must show: (1) that [s]he opposed a practice made unlawful

by Title VII; (2) that the employer took a materially adverse action against h[er]; and (3) that the

employer took the action ‘because’ the employee opposed the practice.” McGrath v. Clinton,

666 F.3d 1377, 1380 (D.C. Cir. 2012). The D.C. Circuit has interpreted Title VII’s retaliation

provision as extending protection to an employee’s opposition “to a practice that the employee

reasonably and in good faith believed was unlawful under the statute.” Id. (citing George v.

4 That said, Guillen’s handling of customers on the recorded calls provided to the Court was not a model of customer service, to say the least. See Def. Mot. Summ. J., Exh. 9.

16 Leavitt, 407 F.3d 405, 417 (D.C. Cir. 2005); Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012,

1020 (D.C. Cir. 1981)).

The same burden-shifting framework that applies to discrimination claims applies to

retaliation claims; once a defendant demonstrates a nondiscriminatory justification for the

adverse action, “a court reviewing summary judgment looks to whether a reasonable jury could

infer retaliation from 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

[plaintiff’s] evidence of retaliation.” Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010)

(internal quotation marks omitted).

1. February 2015 EEOC Charge

Guillen first contends that the District retaliated against her for filing an EEOC complaint

on February 27, 2015 complaining of unequal pay. 5 There is no dispute that “[a]n EEOC

complaint constitutes protected activity.” Kilby-Robb v. Duncan, 77 F. Supp. 3d 164, 175

(D.D.C. 2015) (citing Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012)).

a. Materially Adverse Action

Guillen identifies various actions that she claims were taken against her for filing the

EEOC complaint, including a negative productivity report, “increased scrutiny, surveillance,

false accusations, warnings, [and] punitive scheduling,” and ultimately her termination. Pl.

Resp. Interrog. ¶¶ 8-9; Guillen Dep. 75:3-7; Pl. Stmt. Facts ¶ 47. “A materially adverse

employment action in the retaliation context is one that would ‘dissuade a reasonable worker

5 Although Guillen filed her complaint under the Equal Pay Act, which prohibits the discriminatory payment of wages based on gender, the conduct that she complained of— discrimination in pay on the basis of her ethnicity—would, if proven, state a claim under Title VII. See McGrath, 666 F.3d at 1380.

17 from making or supporting a charge of discrimination.’” Mitchell v. D.C., 304 F. Supp. 3d 110,

117 (D.D.C. 2018) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)).

The Court finds that only the proposed suspension and termination rise to the level of

materially adverse employment actions. See Durant v. D.C. Gov’t, 875 F.3d 685, 698 (D.C. Cir.

2017), cert. denied, 138 S. Ct. 2608 (2018) (“A reprimand letter setting forth allegations of

deficient work performance is not a materially adverse action absent a showing that the letter

would have dissuaded a reasonable employee from engaging in protected activity.”); Baloch v.

Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008) (concluding that a letter of reprimand

containing “job-related constructive criticism” but no “abusive language” was not materially

adverse); Gaujacq, 601 F.3d at 578 (concluding that no reasonable employee could find the

employer’s “brief, fleeting, and unadorned verbal statement as an act or threat of retaliation”).

b. Causation

In any event, Guillen has not established a causal connection between her filing the

EEOC complaint in February 2015 and any materially adverse employment action. “The causal

connection component of the prima facie case may be established by showing that the employer

had knowledge of the employee’s protected activity, and that the adverse personnel action took

place shortly after that activity.” Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985).

Warrick affirmatively declared that she did not know that Guillen had filed an EEOC complaint

prior to this lawsuit. See Warrick Decl. ¶ 22.

Guillen speculated in her deposition that Warrick must have been aware that she filed the

EEOC charge because “when the Agency has received [the complaint][,] they are going to be

called for that or made aware of that.” Guillen Dep. 105:11-106:15. But, Guillen points to

18 nothing in the record that would indicate that “it was necessary for [Warrick] to be aware of

[Guillen’s] EEO[C] [charge].” Baldridge, 759 F.2d at 87 n.7. Indeed, the EEOC charge

complains only of unequal pay and identifies Madison as Guillen’s supervisor; nowhere is

Warrick mentioned. See Pl. Opp., Exh. 5. Guillen’s mere speculation about Warrick’s

awareness of her filing an EEOC charge is thus insufficient “to contradict [Warrick’s] statement

that [s]he did not know that . . . the plaintiff was engaged in EEO-protected activity before [s]he

made h[er] non-renewal decision.” Brooks v. Kerry, 37 F. Supp. 3d 187, 211 (D.D.C. 2014).

Guillen has thus failed to meet her burden to establish a prima facie case of retaliation

with respect to her EEOC charge. Accordingly, the Court will grant summary judgment to the

District on Count 5 to the extent that Guillen’s Title VII retaliation claim is based on her filing

the February 2015 EEOC complaint.

2. August 2015 Email Complaining of Unequal Pay

Guillen also contends that the District retaliated against her for sending an email to

Madison complaining of discriminatory unequal pay and non-promotion. The undisputed record

shows that Guillen sent Madison the email on August 1, 2015, see Pl. Opp., Exh. 8, that Madison

shortly thereafter forwarded the email to Warrick, see Madison Dep. 21:7-22, and that Warrick

sent Guillen an Advance Written Notice of Proposed Suspension on August 3, 2015, see Pl.

Opp., Exh. 9.

a. Protected Activity

The parties dispute whether Guillen’s August 1, 2015 email to Madison qualifies as

protected activity under Title VII. In that email, Guillen stated:

I strongly believe it is appropriate for me to be formally promoted to Grade 7 of that position because I do the same work that everyone else in the Call Center does. I thus have the same responsibilities that everyone else has. I possess the

19 experience and skills required for the position, not to mention the additional language that provides me with an advantage over most of my colleagues.

Internal equality in compensation for a particular job helps prevent perceived or unintentional bias and low morale among workers.

Def. Mot. Summ. J., Exh. 13.

The Department argues that Guillen’s email to Madison was not protected activity under

Title VII because it “does not allege that she was being discriminated against.” Id. at 13. To be

sure, “[n]ot every [employee] complaint garners its author protection under Title VII. . . . While

no ‘magic words’ are required, the complaint must in some way allege unlawful discrimination,

not just frustrated ambition.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006);

see also Achoe v. Clayton, No. 17-CV-02231 (CRC), 2018 WL 4374926, at *9 (D.D.C. Sept. 13,

2018) (“Expressing workplace concerns, even in an informal manner, may constitute protected

activity,” so long as “those expressions . . . make some reference to discrimination that would be

unlawful under Title VII.” (citing Battle v. Master Sec. Co., LLC, 298 F. Supp. 3d 250, 253

(D.D.C. 2018)). The Court concludes that the record, read in the light most favorable to Guillen,

reflects a genuine dispute as to whether the August 1 email “allege[d] unlawful discrimination.”

Broderick, 437 F.3d at 1232.

In the email, Guillen explicitly emphasizes the need for “[i]nternal equality in

compensation for a particular job” and requests a pay increase in the form of a formal promotion

to Grade 7, presumably because everyone else in the Call Center was assigned a Grade 7 and she

had “the same responsibilities” and did “the same work” that they did. Pl. Opp., Exh. 13.

Although the August 1 email does not explicitly mention race or national origin, Guillen does

20 mention her “additional language [skill] that provides [her] with an advantage over most of [her]

colleagues,” which, read in context, is a reference to her Hispanic ethnicity. Id.

Moreover, the record contains sufficient evidence from which a reasonable jury could

that that Guillen “reasonably and in good faith believed” that her unequal pay “was unlawful

under Title VII.” McGrath, 666 F.3d at 1380. After all, Guillen had in February 2015 filed the

EEOC charge complaining that the same conduct alleged in the August 1 email was unlawful

discrimination. See Pl. Opp., Exh. 5. And, if Guillen could show that her non-promotion and

unequal pay were in fact based on her being Hispanic, that would be a violation of Title VII.

The record thus reflects a genuine dispute as to whether the August 1 email was protected

activity under Title VII.

b. Materially Adverse Action

Two days after Guillen sent the email to Madison, Warrick sent Guillen an Advance

Written Notice of Proposed Ten-Day Suspension. See id., Exh. 9. The parties dispute whether

the proposed suspension constitutes a “materially adverse” employment action for the purposes

of the Title VII retaliation provision.

As the Court has noted, a materially adverse employment action must be “harmful to the

point that [it] could well dissuade a reasonable worker from making or supporting a charge of

discrimination.” Burlington N., 548 U.S. at 57. Although the Defendant is correct that “courts

have been unwilling to find adverse actions where the suspension is not actually served,” Baloch,

550 F.3d at 1199; see also Johnson v. Hantman, No. 00-5447, 2001 WL 674637, at *1 (D.C. Cir.

May 4, 2001) (refusing to recognize a “never-effected suspension” as “an adverse personnel

action cognizable as a matter of law”), those cases did not involve evidence that the proposed

suspension led to the employee’s termination.

21 Here, by the District’s own admission, the proposed suspension was a factor in its

decision to terminate Guillen’s employment. In its response to Guillen’s interrogatories, the

District stated that it “chose not to renew [Guillen’s] term appointment, based on her continued

customer service failures and the pending proposed suspension for her continued customer

service failures, which had not been resolved by the expiration of Plaintiff’s term appointment.”

Def. Resp. Interrog. ¶¶ 9, 12 (emphasis added). On this record, “[a] jury could find that a

reasonable employee would have avoided” raising complaints about discrimination in promotion

and compensation based on the proposed suspension, “particularly where [that proposed

suspension] led to an agency termination decision.” Lowe v. Jackson, 28 F. Supp. 3d 63, 79

(D.D.C. 2014) (finding that negative performance evaluations qualified as materially adverse

actions where they ultimately led to the employee’s termination). The Court thus concludes that

the record reflects a genuine dispute as to whether the proposed suspension was materially

adverse.

c. Causation

Those threshold issues resolved, Guillen easily “may satisfy th[e] third element of a

prima facie case by showing ‘the employer had knowledge of the employee’s protected activity,

and . . . the adverse personnel action took place shortly after that activity.’” Holcomb v. Powell,

433 F.3d 889, 903 (D.C. Cir. 2006) (quoting Mitchell, 759 F.2d at 86) (alteration in original).

The temporal proximity—less than two days—between Guillen’s email to Madison and the

Advance Notice of Proposed Suspension is sufficient to establish a causal connection between

the two events. Moreover, there is no dispute that Warrick knew of the August 1 email when she

issued Guillen the proposed suspension; Madison testified that she forwarded the email to

Warrick soon after receiving it. Madison Dep. 21:3-7; see Jones v. Bernanke, 557 F.3d 670, 679

22 (D.C. Cir. 2009) (“To survive summary judgment . . . [a plaintiff] needn’t provide direct

evidence that [her] supervisors knew of [her] protected activity; [s]he need only offer

circumstantial evidence that could reasonably support an inference that they did.”).

The Court thus finds that the record contains sufficient evidence from which a reasonable

jury could conclude that Guillen was issued the notice of proposed suspension because of her

August 1 email complaining of discrimination. Accordingly, the Court concludes that Guillen

has raised a genuine issue of material fact as to whether she has established a prima facie case of

retaliation based on her August 1 email.

d. Pretext

The District maintains that it issued Guillen the proposed suspension—and eventually

terminated her—because of her repeated customer service failures and not in retaliation for her

complaint of discrimination. As the Court has explained, this is a specific and well-supported

“legitimate” explanation that shifts the burden back to Guillen to produce sufficient evidence that

the District’s explanation was pretextual. Allen, 795 F.3d at 39.

“There are multiple ways in which circumstantial evidence may support an inference that

an employer’s stated reason for a challenged employment action was not the actual reason, and

that the real reason was . . . retaliation.” Id. at 40. For one, the two-day gap between Guillen’s

email to Madison on August 1 and her receipt of the notice of proposed suspension on August 3

could suggest pretext. See id. (“The temporal proximity of an adverse action close on the heels

of protected activity is a common and highly probative type of circumstantial evidence of

retaliation.” (citing Hamilton, 666 F.3d at 1357-59)); Reeves v. Sanderson Plumbing Prod., Inc.,

530 U.S. 133, 143 (2000) (“[T]he trier of fact may still consider the evidence establishing the

plaintiff’s prima facie case ‘and inferences properly drawn therefrom . . . on the issue of whether

23 the defendant’s explanation is pretextual.’” (quoting Texas Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 256 (1981)) (alteration in original)). Moreover, as the Court has explained with

respect to Guillen’s Title VII discrimination claims, a reasonable jury could also infer pretext

from the evidence that the Department did not suspend or terminate other employees who

received customer complaints, failed to follow its established progressive discipline policy, and

generally treated employees who asserted their Title VII rights worse than who did not. See

supra pp. 12-16; Allen, 795 F.3d at 40.

The Court thus concludes that Guillen has raised a genuine dispute as to whether the

District’s asserted explanation—her customer service failures—was the real reason for her

proposed suspension and eventual termination, and not retaliation for her complaint of

discrimination. The Court thus denies summary judgment on Count 5 to the extent that Guillen’s

Title VII retaliation claim is based on the August 1 email.

3. September 2015 Grievance

Finally, Guillen contends that she was fired in retaliation for filing an employment

grievance with the Department on September 28, 2015. That grievance complained of, among

other things, Warrick’s alleged negative treatment of her, her unequal pay, and the Department’s

purported retaliation against her for sending the August 1 email. Pl. Opp., Exh. 11. There is no

dispute that Guillen’s grievance constitutes protected activity or that her termination is materially

Guillen has failed, however, to meet her burden to establish a causal connection between

her filing the grievance on September 28 and her termination on October 9. Although there is

24 close temporal proximity between the two events, there is no evidence that Warrick learned of

Guillen’s grievance prior to deciding to recommend her termination.

Warrick declared that she made her recommendation to Madison not to renew Guillen’s

appointment in “late August 2015.” Warrick Decl. ¶ 20. That was well before Guillen filed her

grievance in late September. See Terveer v. Billington, 34 F. Supp. 3d 100, 119 (D.D.C. 2014)

(“[A]n adverse employment action that was already contemplated before a plaintiff engaged in

protected activity cannot be evidence of retaliation the Department contends.”); Clark Cty. Sch.

Dist. v. Breeden, 532 U.S. 268, 272 (2001) (“Employers need not suspend previously planned

transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines

previously contemplated, though not yet definitively determined, is no evidence whatever of

causality.”). Guillen does not point to anything in the record that would indicate that Warrick

made her termination decision after September 28; to the contrary, Guillen’s own grievance

states that there was “rumor” going around the office as early as August 5 that she was going to

be fired for hanging up on a customer. Pl. Opp., Exh. 11 at 6.

In any event, Warrick declared that she “was not aware of Plaintiff’s September 2015

grievance complaining about discrimination until Plaintiff brought this lawsuit.” Warrick Decl.

¶ 22. Guillen’s mere speculation that Warrick knew of the grievance prior to October 9 cannot

create a genuine issue of material fact. See Brooks, 37 F. Supp. 3d at 211. Guillen thus fails to

establish a prima facie case of retaliation with respect to her filing the employment grievance.

Accordingly, the Court will grant summary judgment to the District on Count 5 to the extent that

Guillen’s Title VII retaliation claim is based on the September 28 Grievance.

25 C. Counts 8, 9, and 10: FMLA and DCFMLA Interference and Retaliation

Finally, Guillen alleges that the Department interfered with and retaliated against her

taking leave protected by the federal Family and Medical Leave Act (“FMLA”) and the District

of Columbia Family and Medical Leave Act (“DCFMLA”). Because the FMLA and DCFMLA

operate under similar legal standards, the Court will analyze these claims together. See Gleklen

v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367 (D.C. Cir. 2000).

The FMLA and the DCFMLA entitle an employee to take certain amounts of unpaid

leave “[b]ecause of a serious health condition that makes the employee unable to perform the

functions of the position of such employee,” 29 U.S.C. § 2612(a)(1)(D); see also D.C. Code

§ 32-503(a), and, upon return from FMLA leave, “to be restored . . . to the position of

employment held . . . when the leave commenced” or “an equivalent position,” 29 U.S.C.

§ 2614(a)(1). The FMLA also makes it “unlawful for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, [this] right,” id. § 2615(a)(1), or “to discharge or

in any other manner discriminate against any individual for opposing any practice made unlawful

by [the FMLA],” id. § 2615(a)(2).

Although Guillen separately pleads an FMLA “interference,” Am. Compl. ¶¶ 122-26, and

“retaliation” claim, id. ¶¶ 127-31, it is not clear from her briefing whether the two claims are

actually distinct. As best the Court can tell, Guillen advances only a “backwards-looking

‘retaliation’ theory” and not a “forward-looking ‘interference’ one.” Gordon v. U.S. Capitol

Police, 778 F.3d 158, 165 (D.C. Cir. 2015); compare McFadden v. Ballard Spahr Andrews &

Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010) (recognizing as a “retaliation” claim the plaintiff’s

allegation that the employer “denied [the plaintiff’s] request for reassignment and terminated her

in order to retaliate for her having requested and taken leave due her under the FMLA”), with id.

26 at 7 (recognizing as an “interference” claim the plaintiff’s allegation that the employer

“misinform[ed] her about the amount of leave to which she was entitled and . . . pressur[ed] her

not to take leave”).

It is undisputed that Guillen applied for, and was granted, FMLA leave in July 2014,

which she took from October through December 2014 in relation to her breast cancer surgery

and that the Department did not discourage or prevent her from taking that leave. Guillen Dep.

109:10-110:17. Although “acts of the employer that operate as retaliation for [an] initial request

may also operate as interference with [] later requests for use,” Gordon, 778 F.3d at 161, Guillen

does not allege that she wanted to take FMLA leave in 2015 or at any other point in the future

and was discouraged or prevented from doing so by the conduct of those in the Department after

she returned from FMLA leave.

Whether pleaded under 29 U.S.C. § 2615(a)(1) or § 2615(a)(2), Guillen’s fundamental

complaint seems to be that the Department punished her after the fact for having taken FMLA

leave, not that it actively prevented her from doing so. See id. (recognizing “a good deal of

overlap in the coverage of § 2615(a)’s two subsections”); see also Williams v. Verizon

Washington, D.C. Inc., 304 F. Supp. 3d 183, 190 (D.D.C. 2018) (“Regardless of the precise

subsection of FMLA under which a retaliation claim arises, courts have applied the [McDonnell

Douglas] burden-shifting framework . . . to evaluate retaliation claims under the FMLA.”).

Accordingly, the Court will construe Counts 8, 9, and 10 as raising only an FMLA retaliation

claim.

“The elements of a prima facie case of FMLA retaliation are the well-known triad: (1)

the employee ‘engaged in a protected activity under this statute’; (2) the employee ‘was

adversely affected by an employment decision’; and (3) ‘the protected activity and the adverse

27 employment action were causally connected.’” Gordon, 778 F.3d at 161 (quoting Gleklen, 199

F.3d at 1368). The D.C. Circuit has “imported Title VII’s prima facie case and burden-shifting

regime to the FMLA retaliation context . . . .” Id. (citing Gleklen, 199 F.3d at 1367-68). As

explained below, the Court concludes that Guillen failed to meet her burden to establish a prima

facie case of FMLA retaliation.

1. Protected Activity

It is undisputed that Guillen’s exercise of her right to take FMLA leave in late 2014 was

protected activity under the FMLA, 6 see id. at 167, and the DCFMLA, see Chang v. Inst. for

Pub.-Private Partnerships, Inc., 846 A.2d 318, 329 (D.C. 2004). Much of Guillen’s briefing,

however, is focused on her follow-up medical appointments after she returned from FMLA leave

in early 2015. See Guillen Dep. 49:15-17; Pl. Resp. Interrog. ¶ 12. It is undisputed that the

Department approved all of Guillen’s requests for sick or annual leave to attend these

appointments. See Guillen Dep. 111:13-112:13, 113:6-13; Warrick Decl. ¶ 21; Pl. Resp.

Interrog. ¶ 12.

Guillen nonetheless complains that Warrick gave her grief for requesting leave to attend

these appointments, see Pl. Stmt. Facts ¶ 14; Pl. Resp. Interrog. ¶ 12; Pl. Opp., Exh. 13, and that

Warrick manipulated Guillen’s productivity reports to include the time that she was out on leave

at these appointments so as to increase her “off phone” time metric, see Guillen Dep. 68:7-71:1.

To the extent that Guillen’s FMLA retaliation claim is based on the theory that Warrick chastised

6 It is an open question in this Circuit whether taking FMLA leave is cognizable as a “protected activity” under § 2615(a)(2), which refers to the employee’s “opposing any practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2) (emphasis added). But, the Circuit has recognized that a plaintiff may bring a retaliation claim based on her taking of FMLA leave “under § 2615(a)(1), which contains no requirement that she ‘oppose any practice,’” Gordon, 778 F.3d at 162, which the Court construes Guillen to have alleged here.

28 her for taking sick and annual leave to attend doctor’s appointments, that aspect of her claim is

not cognizable under the FMLA. See Harris v. D.C. Water & Sewer Auth., 172 F. Supp. 3d 253,

268 (D.D.C. 2016) (“To avail [her]self of the protections of the FMLA, an employee must

specifically take FMLA leave; naturally, all absences from work and all types of leave are not

covered.”). The Court will thus focus its analysis on the evidence of the Department’s retaliation

against Guillen for taking FMLA leave in late 2014, which is the only cognizable protected

activity discernible from the record.

2. Materially Adverse Action

For the purposes of Guillen’s FMLA retaliation claim, “[a] materially adverse action is

one that ‘might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Cole v. Powell, 605 F. Supp. 2d 20, 26 (D.D.C. 2009) (quoting Burlington N.,

548 U.S. at 68). Guillen alleges a laundry list of purportedly adverse actions taken against her

for exercising her FMLA rights. These include Warrick’s “punitive scheduling, excessive

scrutiny, criticism of Guillen for taking many doctor[’s] appointments,” and “the failure [of the

Department] to promote Guillen to a Grade 7 level position like all other comparators in the call

center after she returned from her FMLA leave in January 2015.” Pl. Opp. at 43; see id., Exh.

13; Pl. Stmt. Facts ¶ 14; Pl. Resp. Interrog. ¶ 12; Guillen Dep. 68:7-22. The Court has already

explained why Warrick’s general negative treatment of Guillen does not rise to the level of

“materially adverse.” See supra Section III.A.1. The Court will thus grant summary judgment to

the District on Counts 8, 9, and 10 to the extent that Guillen’s FMLA and DCFMLA claims are

based on these actions. The Court will focus its causation analysis on Guillen’s non-promotion

in July 2015 and termination in October 2015, which, the Court has explained, are materially

29 3. Causation

To prove retaliation, a plaintiff must prove that “the employer took the [adverse] action

‘because’ the employee [engaged in protected activity].” Harris v. D.C. Water & Sewer Auth.,

791 F.3d 65, 68 (D.C. Cir. 2015) (quoting McGrath, 666 F.3d at 1380); see McFadden, 611 F.3d

at 6 (recognizing that Title VII and FMLA retaliation claims operate under “essentially the same

analytical framework”). Guillen has not drawn a causal connection between her taking of FMLA

leave in late 2014 and any materially adverse employment action.

As an initial matter, there was not sufficient temporal proximity between Guillen’s taking

FMLA leave from October to January 2015 and the denial of Guillen’s request for a promotion

in July 2015 or her termination in October 2015 to permit an inference of causation. See Greer

v. Bd. of Trustees of Univ. of D.C., 113 F. Supp. 3d 297, 311 (D.D.C. 2015) (“When relying on

temporal proximity alone to demonstrate causation, there is no bright-line rule, although three

months is perceived as approaching the outer limit.” (citing Hamilton, 666 F.3d at 1357-58));

Thomas v. D.C., 197 F. Supp. 3d 100, 114 (D.D.C. 2016) (refusing to infer causation where “at

least three full months had passed between Plaintiff's EEO complaint and her placement on

AWOL status”).

To overcome this shortcoming, Guillen attempts to put forth “direct evidence” of Warrick

being unhappy with her for being out in the form of verbal warnings and manipulation of

Guillen’s productivity reports and timesheets. Even assuming there is competent evidence in the

record to support these assertions, Guillen points to nothing that indicates that Warrick was

unhappy with Guillen specifically for taking FMLA leave in late 2014 rather than for taking

leave in early 2015 to attend her follow-up medical appointments, which was not protected

activity under the FMLA. See generally Roseboro v. Billington, 606 F. Supp. 2d 104, 111

30 (D.D.C. 2009) (“The FMLA permits termination when an employee remains absent from work

after his qualified leave expires.”). The fact that the “doctor[’s] appointments were for Guillen’s

cancer treatment, the same reasons she had been out on FMLA [leave],” Pl. Opp. 45, does not

bear on whether Warrick harbored resentment toward Guillen for taking FMLA leave. Indeed,

Warrick did not become Guillen’s supervisor until after she returned from FMLA leave, which

makes it implausible to infer that Warrick was upset with Guillen for taking it.

Guillen has not raised a genuine issue as to whether her October 2015 termination or July

2015 denial of promotion request were related to her taking FMLA leave in late 2014. The Court

thus concludes that Guillen has failed to establish a prima facie case of FMLA retaliation.

Accordingly, the Court will grant summary judgment to the District on Counts 8, 9, and 10.

IV. Conclusion

For the reasons stated above, the Court will deny the Defendant’s motion for summary

judgment as to Guillen’s Title VII discrimination claim under Counts 1 and 2 based on her

termination and Title VII retaliation claim under Count 5 based on her proposed suspension and

termination for sending the August 1 email. The Court will grant the Defendant’s motion with

respect to the remaining aspects of Guillen’s Title VII discrimination and retaliation claims

under Counts 1, 2, and 5 and her FMLA claims under Counts 8, 9, and 10 in their entirety.

A separate order will follow this memorandum opinion.

_________________________ Date: November 26, 2019 CHRISTOPHER R. COOPER United States District Judge