BEHRENS v. KERRY

Filing 48

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 28 Motion for Summary Judgment. Signed by Judge Timothy J. Kelly on 9/10/20. (lctjk2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NINA K. BEHRENS,
Plaintiff,
v.

Civil Action No. 16-1590 (TJK)

MICHAEL R. POMPEO, Secretary, United
States Department of State,
Defendant.
MEMORANDUM OPINION AND ORDER
In this Title VII suit for retaliation (Count One) and retaliatory hostile work environment
(Count 2), Plaintiff Nina Behrens alleges that the Department of State denied her high-level
interpreting assignments that she was entitled to, unfairly criticized her conduct, and suspended
her twice without pay, all in retaliation for her prior discrimination complaints against her boss
Patricia Arizu and others (which were settled in 2012) and for her ongoing and vocal opposition
to State’s alleged retaliation. See ECF No. 1; ECF No. 12.
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Summary judgment is appropriate if the movant shows that, viewing the evidence in the
light most favorable to the non-movant, there is “no genuine dispute as to any material fact,”
Fed. R. Civ. P. 56(a), and “no reasonable jury could reach a verdict” in the movant’s favor,
Lopez v. Council on Am.-Islamic Rels. Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
A claim for Title VII retaliation requires a plaintiff to show (1) that she “engaged in
statutorily protected activity,” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); (2) a
“materially adverse action by [her] employer,” id., that would “dissuade[] a reasonable worker
from making or supporting a charge of discrimination,” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68, 71 (2006) (citation omitted); and (3) “a causal link [that] connects the
two,” Jones, 557 F.3d at 677.
While the Court is skeptical that State’s diminution of Behrens’s responsibilities and
criticism of her conduct were materially adverse, it need not decide that issue because at a
minimum, she has presented a genuine issue of material fact regarding whether her 2014 and
2015 unpaid suspensions, which State concedes are materially adverse, ECF No. 28-1 at 25, 1
were causally linked to her 2012 discrimination complaints and retaliation complaints throughout
the rest of her tenure at State.
According to Behrens, in January 2013, Deputy Director Kate Yemelyanov—the “main
liaison on HR issues” to Director Thomas Hufford, ECF No. 33-30 at 21, who doled out both of
Behrens’s suspensions—told Behrens that “unless [she] stopped [her] complaints and opposition
to Arizu’s retaliation [she] may have to leave the agency.” See ECF No. 33-7 at 16–17; ECF No.
33-6 at 5.
Viewing that evidence, along with the rest of the record, in the light most favorable to
Behrens, a reasonable jury could find that Behrens’s unpaid suspensions were caused by her
2012 discrimination complaints and her other complaints that she was the victim of retaliation,
insofar as Yemelyanov also: (1) knew about Behrens’s 2012 discrimination complaints, see ECF
No. 33-7 at 5, and Behrens’s subsequent allegations of retaliation, see ECF No. 29-17 at 25; ECF
No. 29-27; ECF No. 33-38; (2) was involved with several misconduct charges that State cited to
justify Behrens’s suspensions, see, e.g., ECF No. 29-17 at 5–6, 25; ECF No. 33-29;
(3) “continuously argued for [Behrens’s] suspension to both Hufford and Human Resources” in

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The citations in this Memorandum Opinion and Order adopt the pagination in the ECFgenerated headers of the parties’ filings.
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the weeks before Hufford proposed her 2014 suspension, see ECF No. 33-9 at 5–6, 14; and
(4) spoke “viciously” about Behrens and Behrens’s allegations of a retaliatory hostile work
environment a few months before State proposed Behrens’s 2015 suspension, remarking that
“there have to be implications for her,” see ECF No. 33-30 at 21–22; see also ECF No. 33-29.
The Court also notes that it is not clear whether Hufford’s decision to suspend Behrens was
“insulated from the . . . influence” of Behrens’s assigning supervisor Yun-hyang Lee, Griffin v.
Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998), who a reasonable jury could
find was also motivated by retaliatory animus and pushed Hufford to discipline Behrens, see
Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016). See, e.g., ECF No. 29-17 at 33; ECF
No. 29-20 at 34; ECF No. 33-3 at 4–5.
Admittedly, it is difficult to parse Yemelyanov and Lee’s alleged animosity toward
Behrens’s protected EEO activity from their perhaps legitimate criticism of her alleged
misbehavior. Still, Behrens has produced enough evidence for a jury to find that those criticisms
and the 2014 and 2015 unpaid suspensions that followed were “pretexts for retaliation.”
Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C. Cir. 2013). Of course, whether that evidence
ends up carrying the day at a trial is another matter.
In contrast, there is not enough evidence for Behrens’s retaliatory hostile work
environment claim to make it past summary judgment, see ECF No. 33 at 49–52. That claim
requires that she show her employer “subjected [her] to discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and
create an abusive working environment.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir.
2008) (cleaned up). The Court agrees with another court in this District that rejected a similar
effort to “transform . . . challenges to discrete acts of alleged . . . retaliation . . . into a hostile

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work environment claim by combining those events with a series of ordinary workplace
difficulties.“ Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009). “Plaintiff’s allegations
of disparaging remarks, criticisms of [her] work, and other negative comments do not
sufficiently demonstrate a significant level of offensiveness. . . . Nor can the removal of
important assignments, lowered performance evaluations, and close scrutiny of assignments by
management be characterized as sufficiently intimidating or offensive in an ordinary workplace
context. . . . Furthermore, the alleged events are temporally diffuse, spread out over a four-year
period, suggesting a lack of pervasiveness.” Id.; see also ECF No. 44 at 23–24.
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Therefore, it is hereby ORDERED that (1) Defendant’s Motion for Summary Judgment,
ECF No. 28, is DENIED IN PART as to Count One and GRANTED IN PART as to Count
Two; (2) the parties shall appear for a telephonic status conference on October 1, 2020, at 10:00
a.m., in advance of which the parties shall meet and confer on the prospects for mediating the
case; and (3) the parties shall contact the Courtroom Deputy at [phone] at least one
business day in advance to make arrangements to appear.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 10, 2020

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