ROSA v. WORMUTH, No. 4:2020cv00201 - Document 42 (M.D. Ga. 2022)
Court Description: ORDER granting 31 Motion for Summary Judgment Ordered by US DISTRICT JUDGE CLAY D LAND on 05/18/2022 (CCL)
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ROSA v. WORMUTH Doc. 42 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION JESSICA P. ROSA, * Plaintiff, * vs. * CHRISTINE WORMUTH, Secretary, Department of the Army, * CASE NO. 4:20-cv-201(CDL) * Defendants. * O R D E R Jessica Rosa is a civilian employee of the United States Army. She because of claims her that race the Army (Hispanic), discriminated color (white), against and her national origin (Chilean), in violation of the federal-sector provision of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. First, Rosa claims that the Army assigned her extra duties without compensating her for them. Second, she contends that she was not selected for a promotion. moved for summary judgment on both claims. The Army As discussed below, the motion (ECF No. 31) is granted. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if 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.” Civ. P. 56(a). In determining whether a Fed. R. genuine dispute of Dockets.Justia.com Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 2 of 16 material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. In accordance submitted summary a with statement judgment the of motion. Court’s undisputed See M.D. Id. local rules, material Ga. R. the facts 56 with Army its (requiring a statement of material facts that is supported by the record). Rosa, who is represented by counsel, filed a response to the statement “Admitted” of or material facts, but the responses “Denied” without any citation to are the all record, although Rosa does cite the facts portion of her response brief for a few “Denied in Part” responses. The Army’s fact statement is thus deemed admitted pursuant to Local Rule 56, and the Court reviewed the Army’s citations to the record to determine whether a genuine fact dispute exists. See id. (“All material facts contained in the movant’s statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.”). 2 The Court also reviewed Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 3 of 16 Rosa’s citations to the record in the “Statement of Material Facts” portion of her brief. Inexplicably, the Army did not include in its separate statement of material facts many facts that it relies on in its summary judgment motion. These facts include information about an anonymous letter regarding the promotion Rosa sought, the decision to change the required qualifications for the position Rosa sought, and facts about the qualifications of the person who received the promotion Rosa sought. In the discussion section of its brief, the Army discussed these facts and pointed to specific citations in the record to support them. Rosa responded to the arguments with her own record citations. The Court is thus satisfied that Rosa had an adequate opportunity to respond to the additional facts even though they were not in the Army’s separate statement of material facts. FACTUAL BACKGROUND Rosa is Hispanic, and she identifies her color as white and her national origin as Chilean. the Army at Cooperation the Western (“WHINSEC”) at Rosa is a civilian employee of Hemisphere Fort Institute Benning, for Georgia. Security WHINSEC provides training for soldiers from countries in the Western Hemisphere, WHINSEC’s Spanish. and the employees training are is Hispanic done in Spanish. and speak both Most English of and The administrative actions for WHINSEC, though, are in 3 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 4 of 16 English. Def.’s Mot. for Summ. Ex. 2, Fact-Finding Conference Tr. 162:1-2, ECF No. 31-4. In 2015 and 2016, Rosa worked as a human resource assistant at WHINSEC. For several days in November 2015, Rosa was assigned duties consistent with a workforce management support specialist job because Angela Ramos, the person who held the support specialist position, “had an emergency, so she had to leave.” Id. at 46:4-14. While Ramos was on leave, she helped Rosa over the phone and came to the office a few times to guide Rosa. Id. at 46:16-47:6. Ramos returned to work in mid-January 2016, and Rosa’s supervisor, WHINSEC Director of Human Resources David Munyon, asked Ramos to teach Rosa “the whole job just in case.” Id. at 47:7-11. 47:18-21. Ramos retired in April 2016. Id. at After Ramos retired, Rosa performed the duties of the workforce management support specialist until November 2016, and other employees took over some of Rosa’s regular human resource assistant job duties. Id. at 48:2-19. Rosa did not receive an SF-50 notice of personnel action form stating that she was temporarily reassigned or promoted to the workforce management support specialist position. 50:18-51:3. Id. at Munyon did issue her a 120-day “management-directed detail” on June 14, 2016, which detailed her to perform the workforce management support specialist duties for a maximum of 120 days. Id. at 98:1-8. Rosa performed the support specialist 4 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 5 of 16 duties for more than 120 days, and she was paid at the rate for her regular job, human resource assistant, a GS-6 level. Ramos was paid at the higher GS-9 level for the workforce management support specialist position. The Army posted a vacancy announcement for the workforce management position support had a specialist bilingual position in English/Spanish April 2016. The requirement. Rosa applied for the position, but the vacancy was canceled before it was filled. Id. at 31:18-32:13. When the workforce management support specialist position was first opened, WHINSEC Operation Chief Colonel complaining Keith that the Anthony position received an had unfairly been anonymous letter promised to Rosa, that Munyon showed favoritism toward Rosa, that Munyon’s favoritism would make it difficult to make an “ethical selection for the most qualified applicant,” and that the process was unfair to other employees who were “denied promotions” and “not given the same opportunity.” Def.’s Mot. for Summ. J. Ex. 11, Anonymous Letter to Col. Anthony (Apr. 20, 2016), ECF No. 31-13. After he received the letter, Anthony ordered his Command Judge Advocate to favoritism.” The do a memorandum. review “to mitigate any type of Fact-Finding Conference Tr. 198:22-199:6. Command conducted legal the Judge legal Advocate, review and Captain Edwin sent Colonel Caban, Jr., Anthony a Caban “identified issues that need to be addressed 5 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 6 of 16 in order to avoid creating a perception of favoritism and to foster a process of transparency during [the] hiring action” for the workforce management support specialist position. Mot. for Summ. Commandant 1 J. (May Ex. 3, 12, 2016), Mem. ECF from No. E. Caban 31-14. Def.’s to WHINSEC Caban’s “major concern” was the bilingual requirement, which Caban concluded “limits technically proficient Non-Spanish speaking candidates from applying” even though there justification for this limitation.” was not Id. at 2. “sufficient Caban concluded that “the primary duties of the position involve a technically proficient advisor on workforce management activities” who would serve as a liaison between WHINSEC and other organizations, thus requiring “constant written and oral communications in English.” Id. Caban acknowledged that “a candidate with vast technical skills and Spanish proficiency” could be selected, but “the language should not be a reason for disqualifying a technically proficient candidate.” In reaching this Id. conclusion, Caban consulted Rosa’s supervisor, Munyon, who believed that the workforce management support specialist position must be workforce management support specialist bilingual because sometimes made arrangements for individuals who spoke Spanish. the travel Caban, however, concluded that a different office—not the workforce management support specialist—was responsible 6 for such “administrative Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 7 of 16 issues.” Then, Cabal met with Munyon and WHINSEC’s chief Id. of staff to discuss the issue, and Munyon “was unable to present an adequate justification candidates to concluded that only “the the circumstances that creating pre-selected process.” limit Spanish-Speaking.” perception” a to Munyon “promised hiring scope possible Finally, Id. tend of to the position action without Caban support to a Mrs. the Rosa competitive Id. at 3. As a result of Caban’s report, the bilingual requirement was removed from the workforce management support specialist position, and the Army posted a new vacancy announcement for the position in August 2016. selected for an interview. Rosa applied for the position and was The selection panel included Colonel Anthony, Lieutenant Colonel Luis Arzuaga, Major Guillermo Rojas, Jr., Captain Jimmyvan Cogles, Staff Sergeant Alfonso Carrasco, and Captain Adriana Karmann. Staff Sergeant Danhay Bailey and JAG Captain Chadwick White also attended the panel interviews.1 Munyon was disqualified from being a voting member on the selection board “in order to avoid a perception of partiality or undue influence.” Id. 1 Every member of the selection panel was Hispanic. Most of them identify as white, one identifies as brown, and one said his color depends on the sun. The selection panel members identify their national origins as American, Puerto Rican, Mexican, Colombian, and Venezuelan. Captain White, who attended the interviews but was not a member of the selection panel, is not Hispanic. 7 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 8 of 16 Rosa asserts that anyone.” and the JAG commented, officer asked According to Rosa, White asked if she “knew everyone Personnel” as White observe. Civilian role interview, even the his the questions in though during “you was don’t Fact-Finding Conference Tr. 38:22-39:10. to know Rosa also contends that White made direct discriminatory remarks about her accent before, during, and after her interview. In support of this assertion, Rosa points to her own testimony that White was “slandering [her] before after,” and “slandered” her. to the but board she members gave no Id. at 107:14-19. during specifics the of interview how White Rosa also submitted an audio recording of a conversation which she says is between White and Kaumann, and she asserts that “White can be heard mocking [her] accent in a derogatory manner.” ECF No. 41-1. Pl.’s Decl. ¶ 5, Rosa did not point to any evidence of when the recording was made. The Court listened to the recording. It is not clear from the recording that Rosa is the subject of the conversation or that anyone is mocking someone’s accent. the recording does not establish White made Thus, discriminatory remarks about Rosa during the interview process. The selection panel recommended Martha Battles, an African American woman who does not speak Spanish, for the workforce management support specialist position. The panel stated that Battles, whose previous position was at the Civilian Personnel 8 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 9 of 16 Advisory Center, was an “HR professional with over ten years of who experience” “[d]isplays a desire to do a job motivate the team to work towards a common goal.” for Summ. J. Ex. 13, Mem. for WHINSEC right and Def.’s Mot. Commandant (Oct. 24, The panel noted that Battles “could be 2016), ECF No. 31-15. the catalyst of positive change required to enhance systems and procedures in the HR section,” that she had “a professional network that will benefit the institute when external support is needed,” and that she had “in-depth knowledge of all systems the position will manage and is current on upcoming changes to the systems.” The Id. panel also observed that Battles “display[ed] self-control and ability to handle stress well,” and it stated that she was “[b]y far the best applicant [the panel] interviewed.” Id. The panel believed that Battles would use “all her talents, competencies, and gifts to take” WHINSEC’s human resources department “to the next level.” Rosa was the panel’s second choice. Rosa had “great knowledge on HR Id. at 2. The panel noted that systems, procedures, and operations to include upcoming changes and updates required for the position” and that she had “experience and knowledge on the Institute[’s] overall battle rhythm, making her an applicant who doesn’t need training to start immediately.” Id. at 1. panel of found that Rosa “displayed a lack But the confidence and initiative” that “could be overcome with the right mentorship 9 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 10 of 16 and professional development” but which “affects the needs of the Institute currently in for place changes that on would the make Resources . . . a better section.” procedures the and Department systems of Human Id. After receiving the panel’s recommendation, Colonel Anthony selected Battles specialist. to be the workforce management support Rosa exhausted her administrative remedies, then filed this action asserting Title VII claims based on the extra job duties with no additional pay and the denied promotion. DISCUSSION The federal-sector provision of Title VII requires that personnel actions by federal agencies like the Army “be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). To establish a claim under this statute, a plaintiff must prove that her protected characteristic is the “but-for cause of differential treatment,” even if the protected characteristic is not “a but-for cause of the ultimate decision.” Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1205 (11th Cir. 2021) (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1174 (2020)). Thus, the familiar McDonnell Douglas framework does not apply in cases under § 2000e-16 because “even when there are non-pretextual reasons for an adverse employment decision . . . the presence of those reasons doesn’t cancel out the presence, and the taint, of 10 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 11 of 16 discriminatory considerations.” Id. at 1204. But a federal- sector Title VII plaintiff must still prove that her protected characteristic treatment.” I. was the “but-for cause of differential Id. at 1205 (quoting Wilkie, 140 S. Ct. at 1174). Rosa’s Claim Based on Extra Job Duties Rosa argues that the decision not to pay her additional compensation while she was detailed to the workforce management support national specialist origin position was tainted discrimination by because race, “she color, was and treated differently from every other employee” who was detailed on an assignment that exceeded 120 days. for Summ. J. 10, ECF No. 37. evidence on this point. Pl.’s Resp. to Def.’s Mot. But Rosa did not point to any Rosa summarily asserts, without any citation to the record, that this is a jury issue because she “has identified comparators.” Id. explain who those comparators are. She did not, however, Rosa has the burden to point to some evidence to create a genuine fact dispute on the issue of whether the Army’s decision not to compensation was tainted by discrimination. pay her additional She did not point to evidence of a single person outside her protected class who served a management-directed detail of more than 120 days and received additional compensation. She also did not point to any other evidence that gives rise to an inference of discrimination on this issue. Accordingly, Rosa did not create a genuine fact 11 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 12 of 16 dispute on whether her protected characteristics were the butfor cause of differential treatment. 858 Gen., F. App’x 296, 301 Cf. Malone v. U.S. Att’y (11th Cir. 2021) (per curiam) (affirming the district court’s grant of summary judgment on a race discrimination claim because the plaintiff did not show that the employment decision “was in some way tainted by race discrimination”). The Army is thus entitled to summary judgment on this claim. II. Rosa’s Claim Based on the Denied Promotion Rosa also asserts a claim based on the Army’s decision to promote Battles instead of her. Rosa contends that the promotion decision was tainted by discrimination in two ways. First, she argues that White had a discriminatory animus toward her and that he unduly influenced the selection panel. correct that under “cat’s a paw” theory of Rosa is liability, an employer may be liable for an adverse employment action if the employee shows recommendation of that a the biased animus toward the employee. decisionmaker party who held followed a the discriminatory Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). But Rosa did not point to any evidence to establish that White was biased against her because of any protected recommendation hiring panel characteristic, regarding adopted the some that promotion White decision, recommendation 12 made White a or made specific that the without Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 13 of 16 independently considering the relevant issues. Thus, the present record contains no hint of a cat’s paw arrangement. Second, fails, it Rosa is argues obvious that that even if WHINSEC her cat’s “removed paw the theory bilingual requirement to ensure that other candidates with lessor [sic] qualifications could qualify” and “as [a] means to select an inferior candidate for the position.” Mot. for Summ. J. at 4. her own testimony: Pl.’s Resp. to Def.’s In support of this argument, Rosa cites she believes that WHINSEC removed the bilingual requirement “to make sure that they get someone that they feel that they qualify. You know, they -- like they --they had better connections with.” Fact-Finding Conference Tr. 41:5- 11. point Rosa, though, did not to any evidence that the requirement was removed so the Army could select someone who did not possess the legitimate qualifications for the job. Rosa also suggests that the removal of the bilingual requirement gives rise to an inference that WHINSEC preselected Battles for the national origin. position because It does not. of her race, color, and Rosa pointed to nothing in the record that suggests anyone at WHINSEC even knew who Battles was when WHINSEC’s requirement. leadership decided to remove the bilingual Furthermore, the record establishes—and Rosa did not dispute—that WHINSEC’s leadership ordered a legal review of the workforce management support 13 specialist position after Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 14 of 16 someone complained of favoritism toward Rosa. confirmed a perception of favoritism The investigation toward Rosa. It also uncovered another important concern: the bilingual requirement was not a legitimate requirement of the workforce management support specialist position.2 After reviewing the skills necessary for the position and learning that the WHINSEC’s human resources director could not present an adequate justification for the bilingual language requirement, the Army determined that the bilingual requirement was unnecessary and removed it. Removing the unnecessary language requirement did not discriminate against anyone because of race, color, or national origin. Army concluded otherwise was qualified an Rather, it removed what the illegitimate candidates from barrier being bilingual requirement after prevented considered workforce management support specialist job. the that concluding for the Had the Army kept it was not a legitimate requirement of the position, such a decision could have placed the Army at risk of complaints that the Army was discriminating against individuals whose national origin was not a Spanish-speaking country. In summary, Rosa has not pointed to 2 The Court understands that Rosa subjectively believes that the position requires the employee to speak Spanish twenty-five percent of the time because someone in WHINSEC’s HR department must talk to Spanish-speaking partner nation instructors during in-processing. Fact-Finding Conference Tr. 58:2-11. But Rosa did not point to evidence that this task is one of the workforce management support specialist’s central work duties. 14 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 15 of 16 any evidence that the removal of the bilingual requirement gives rise to an inference of discrimination. Rosa also hints that Battles was less qualified than she was. But the only qualification Rosa asserts that Battles lacked was the ability to speak Spanish. And, as discussed above, not the ability requirement position. national of to the speak Spanish workforce was management a legitimate support specialist Rosa did not demonstrate that her race, color, or origin treatment. was the but-for cause of any differential She offered no direct evidence that these factors played a role in the Army’s decision to select Battles instead of Rosa for the workforce management support specialist job. The Court recognizes that differential treatment inferred if Rosa was more qualified than Battles. not argue, much less present evidence, that might be But Rosa did she was more qualified than Battles (except that she could speak Spanish and Battles could not). The selection panel noted that Battles had more than ten years of experience as an HR professional, that she had upcoming in-depth knowledge changes, that of she all had the required systems and with Army relationships organizations outside of WHINSEC that would be beneficial to WHINSEC, that she could be a catalyst of positive change in the HR department, stress well. and that she displayed an ability to handle In contrast, the selection panel noted that while 15 Case 4:20-cv-00201-CDL Document 42 Filed 05/18/22 Page 16 of 16 Rosa knew the HR systems and understood WHINSEC’s operations, she lacked the confidence and initiative to make improvements to WHINSEC’s HR department. Thus, based on the record citations presented by the parties, the evidence does not give rise to an inference of differential treatment based on a protected characteristic. Again, Rosa “need not have shown that being white,” Hispanic, and Chilean “was the but-for cause” of the Army’s decision to promote a non-white, non-Hispanic, non-Chilean Malone, 858 F. App’x at 301. candidate instead of her. But she “does still need to show that the decision was in some way tainted by race [or color or national origin] discrimination.” Id. Rosa did not point to any evidence that her application for the workforce management support specialist position was treated differently because of her race, color, or national origin. Accordingly, the Army is entitled to summary judgment on Rosa’s failure-to-promote claim. CONCLUSION For the reasons set forth above, the Army’s summary judgment motion (ECF No. 31) is granted. IT IS SO ORDERED, this 18th day of May, 2022. S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 16
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