Pardo-Kronemann v. Donovan

601 F.3d 599, 390 U.S. App. D.C. 178, 2010 U.S. App. LEXIS 7850, 93 Empl. Prac. Dec. (CCH) 43,861, 108 Fair Empl. Prac. Cas. (BNA) 1734, 2010 WL 1508072
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 16, 2010
Docket08-5155
StatusPublished
Cited by180 cases

This text of 601 F.3d 599 (Pardo-Kronemann v. Donovan) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pardo-Kronemann v. Donovan, 601 F.3d 599, 390 U.S. App. D.C. 178, 2010 U.S. App. LEXIS 7850, 93 Empl. Prac. Dec. (CCH) 43,861, 108 Fair Empl. Prac. Cas. (BNA) 1734, 2010 WL 1508072 (D.C. Cir. 2010).

Opinions

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge WILLIAMS.'

TATEL, Circuit Judge:

Appellant, an attorney at the Department of Housing and Urban Development, alleges that HUD retaliated against him in violation of Title VII of the Civil Rights Act of 1964 by transferring him to a nonlegal position and by declaring him absent without leave (AWOL) when he failed to report to his new job. After partially denying appellant’s Rule 56(f) motion, the district court granted summary judgment to HUD on both claims. For the reasons set forth in this opinion, we reverse as to the transfer claim, affirm as to the AWOL claim, and find no abuse of discretion in the district court’s resolution of the Rule 56© motion.

I.

Appellant Jose Pardo-Kronemann first worked at HUD as a graduate student intern in the Office of International Affairs [602]*602(OIA). After completing law school in 1991, he returned to HUD as an entry-level attorney in the Office of the General Counsel (OGC), first in the Public Housing Division and then in the Finance Division, his preferred position. Sometime in 1998 or 1999, HUD reassigned Pardo-Kronemann to OGC’s Program Compliance Division.

Around this time, Pardo-Kronemann filed several Equal Employment Opportunity (EEO) complaints alleging retaliation for prior EEO activity and discrimination on the basis of his Cuban origin. He also asked Howard Glaser, counselor to HUD Secretary Andrew Cuomo, about a possible detail away from HUD. In a subsequent letter, Glaser noted that Pardo-Kronemann had requested a one-year detail and that, upon his return, he sought reinstatement “preferably to the ... Office of International Affairs or the ... Finance Division [of OGC].” Letter from Howard Glaser, Counselor to the Secretary, HUD, to Jose Pardo-Kronemann (July 21, 1999). The letter stated that “the Department is agreeable to a detail ... renewable to the permissible extent,” and that “[a]t the conclusion of the detail, [Pardo-Kronemann] would return to [his] position at HUD or a mutually agreeable position, including consideration for reassignment to the Finance Division.” Id.

In accordance with Glaser’s letter, HUD approved a one-year detail to the Inter-American Development Bank (IDB) from November 1999 to November 2000. At the conclusion of that detail, Pardo-Kronemann sought a second detail, this time to the Inter-American Investment Corporation. When HUD said no, Pardo-Kronemann took approved leave without pay from December 2000 to February 2001. During that time, he continued working on a handbook for fostering mortgage markets in developing nations that he had begun while on detail at IDB.

Returning to HUD in March 2001, Par-do-Kronemann met with Matthew Hunter, Assistant HUD Secretary and White House Liaison, and asked him for either a second detail or a political appointment in the new administration. During that meeting, Pardo-Kronemann gave Hunter copies of his previously filed EEO complaints. Hunter Aff. ¶ 4, Nov. 11, 2002. Hunter “saw no reason to spend additional HUD money on detailing” Pardo-Kronemann away from the Department and concluded that “a political appointment would not be appropriate.” Id. ¶ 7.

HUD then returned Pardo-Kronemann to OGC, though with the Department’s permission, he continued working on the IDB handbook from March through October. During this time, OGC assigned Par-do-Kronemann no legal work, nor did he request any, though he did receive a small number of assignments from the Office of the Secretary. In particular, Hunter asked Pardo-Kronemann to prepare a memorandum on the history of OIA, where he had worked as an intern during graduate school. Hunter found the final product disappointing, but Pardo-Kronemann contends that another employee actually completed the memorandum. Id. ¶ 6; Pardo-Kronemann Dep. 152-55 (undated).

HUD officials soon became concerned that Pardo-Kronemann “was not doing any work, was keeping sporadic work hours, and was generally not living up to his obligation as a Federal employee.” Hunter Aff. ¶ 8. Sometime between June (according to Pardo-Kronemann) and September 2001 (according to HUD), HUD officials began to consider transferring Pardo-Kronemann out of OGC. On October 15, with the decision nearly final, Deputy General Counsel George Weidenfeller sent an email to several OGC employees stating, “Per Matthew Hunter, please prepare papers to reassign Jose [Pardo-Kro[603]*603nemann] to the HUD International Affairs Office.” E-mail from George Weidenfeller, Deputy General Counsel, HUD, to Sinthea Kelly and Kathryn J. Davis, HUD (Oct. 15, 2001). According to record evidence, HUD officials, including Weidenfeller and Hunter, made the transfer decision without consulting Pardo-Kronemann and over the objection of the Deputy Assistant Secretary in charge of OIA, Shannon Sorzano, who was instructed to “write a position description and find something for [Pardo-Kronemann] to do.” Sorzano Aff. ¶ 5, Nov. 9, 2002. OGC and human resources officials subsequently rewrote that job description “to ensure that the duties did not reflect performance of any legal work.” Id. ¶ 15.

Pardo-Kronemann learned nothing of the impending transfer until December. Although his position description was still being drafted, he was instructed to report to OIA on January 7, 2002. He then met with Sorzano, who informed him that OIA focused on research and had no legal work. When Pardo-Kronemann indicated that he wanted to decline the “offer,” Sorzano responded that she did not know whether he could. Id. ¶ 11. Pardo-Kronemann then sought leave for his first week at OIA, but he followed the wrong procedures. Id. ¶ 12-13. When Pardo-Kronemann failed to report for work, Sorzano placed him on AWOL status, resulting in a two-day suspension. He began work at OIA two days later. Pardo-Kronemann’s title, grade, pay, and benefits remained unchanged.

After exhausting his administrative remedies before the Equal Employment Opportunity Commission, Pardo-Kronemann sued the HUD Secretary in the United States District Court for the District of Columbia. He alleged that HUD violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by transferring him to a non-legal position and by placing him on AWOL status, both in retaliation for his prior EEO activity and advocacy “on behalf of IMAGE,” “an organization whose mission is to promote and increase hiring, promotion, and retention of Hispanics in the federal government.” Compl. ¶ 34, 16. Following discovery and the partial denial of Pardo-Kronemann’s Rule 56(f) motion for additional discovery, the district court granted HUD’s motion for summary judgment on both claims. Pardo-Kronemann v. Jackson, 541 F.Supp.2d 210 (D.D.C.2008). Pardo-Kronemann appeals.

II.

We begin with Pardo-Kronemann’s claim of retaliatory transfer. Examining the evidence in accordance with McDonnell Douglas’s burden-shifting framework, the district court found that Pardo-Kronemann probably established the first two elements of a prima facie case of retaliation: HUD concedes that his EEO complaints qualified as statutorily protected activity, and the record reflects a “genuine dispute of material fact as to whether he suffered an adverse personnel action based upon the reassignment” to a non-legal position. Pardo-Kronemann, 541 F.Supp.2d at 215-18; see McDonnell Douglas Corp. v. Green,

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601 F.3d 599, 390 U.S. App. D.C. 178, 2010 U.S. App. LEXIS 7850, 93 Empl. Prac. Dec. (CCH) 43,861, 108 Fair Empl. Prac. Cas. (BNA) 1734, 2010 WL 1508072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pardo-kronemann-v-donovan-cadc-2010.