Moran Kalamas v. Pritzker
Filing
87
ORDER granting in part and denying in part 61 Motion for Summary Judgment. Signed by Judge Richard A. Lazzara on 12/12/2017. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KELLY L. MORAN KALAMAS,
Plaintiff,
v.
CASE NO. 8:16-cv-563-T-26JSS
WILBUR ROSS, Secretary,
U.S. Department of Commerce,
Defendant.
/
ORDER
BEFORE THE COURT is Defendant’s Motion for Summary Judgment (Dkt.
61), Statement of Undisputed Facts with exhibits (Dkt. 61-1), numerous depositions
(Dkts. 63-74), Plaintiff’s Response with Statement of Disputed Facts (Dkt. 78),
depositions (Dkts. 79 and 79), and exhibits (Dkts. 81 and 86). After careful consideration
of the parties’ submissions, the applicable law, and the entire file, the Court concludes
that the motion should be granted as to the retaliation claim and denied as to the
discrimination claim.
BACKGROUND
Plaintiff Kelly L. Moran Kalamas is a current employee of Defendant. She alleges
discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., and retaliation under Title VII.1 She claims that she was denied a
“career ladder” promotion because she is a woman and that she was retaliated against
because she complained to her supervisor’s boss that her supervisor was discriminating
against her on the basis of her sex. Plaintiff has correctly and graciously conceded that
Defendant is entitled to summary judgment on the retaliation claim.
Since 1992, Plaintiff has worked for the National Marine Fisheries Service
(NMFS) of the National Oceanic and Atmospheric Administration (NOAA) in the Office
of Law Enforcement (OLE), Southeast Enforcement Division (SED) as a special agent.
She recently, after the filing of this lawsuit, became a Criminal Investigator ZA-1811-IV
(Band IV Special Agent).2 She plans and conducts civil and criminal investigations of
alleged or suspected violations of fish and wildlife laws and regulations under NOAA’s
jurisdiction.3 In June 2012, when she filed a complaint of discrimination with NOAA,
she held the position of Criminal Investigator ZA-1811-III (Band III Special Agent),
which she held since February 1998.4 After she submitted three applications from 2012
forward, she was finally promoted on the third try to Band IV level in April 2017.5
1
See docket 39.
2
See docket 61-2, page 14.
3
See docket 61-2, page 15.
4
See docket 61-2, page 14.
5
See docket 63, page 187. Mr. Roberson and Ms. Casey also received
promotions in 2017. See docket 63, page 188.
-2-
Opportunities for Promotion
In August 2007, the Band IV Special Agent position was created through the
United States Department of Commerce for NOAA OLE.6 The first promotional
opportunity for this new position arose in March 2008 at which time Plaintiff was told the
application process would occur once a year thereafter.7 With the option to apply every
year in mind, she did not apply for the first offering.
In October 2008, the second opportunity for a promotion to Band IV Special Agent
presented itself, but she was discouraged from applying by Assistant Special Agent in
Charge (ASAC) Gregg Houghaboom, who was her first supervisor in the chain of
command.8 He told her that she should wait until the next cycle because she did not have
the experience now required for the position.9 Apparently the prerequisites for the
position had changed since 2007. She was told by the Deputy Special Agent in Charge
(DSAC) Tracy Dunn, the next level in the chain, that a “time-in-grade” requirement of at
least ten years was required. She took the advice and did not apply in October 2008. At
the end of the promotional period, however, she learned that a co-worker, SA Emanuel
6
See docket 61-2, page 15.
7
See docket 61-2, page 16.
8
The ASAC reports to the Deputy Special Agent in Charge who reports to the
Special Agent in Charge, which position is now called the Assistant Director.
9
See docket 61-2, page 16.
-3-
Antonaras, was actively solicited for and received the position.10 He had just one year
“time-in-grade” and had been a special agent for only five years.
The third promotional opportunity arose in September 2011.11 Seven men and
Plaintiff applied for the promotion to Band IV Special Agent. Four men received the
promotion in January 2012.12 Although Plaintiff had complied with the requirements of
2008, she was not promoted because the qualifications for the job had changed, now
requiring complex criminal investigations for a two to three-year span.13 After the
positions were filled, she confirmed the additional requirements, which were not
publicized prior to applying for the position, with ASAC Houghaboom. She told him that
90 per cent of the then current Band IV Special Agents did not perform at those
standards, and he agreed.14 Plaintiff realized that with each opportunity for a promotion
10
See docket 61-2, page 17.
11
See docket 61-2, page 17. Apparently, in October 2011, the September 2011
opportunity was rescinded, new requirements were added, and the opportunity was
reopened in December 2011. See docket 61-2, page 19.
12
She was told by a co-worker in December 2011 that ASAC Paul Raymond and
Acting DSAC Radonski had “made it their mission” to prevent her from getting a
promotion. See docket 61-2, page 19.
13
See docket 61-2, page 18.
14
See docket 61-2, page 18.
-4-
the bar was raised, seemingly for her only, with requirements added after the application
process began and of which she had no notice.15
The fourth promotional opportunity occurred in 2016. Three men, three women,
and Plaintiff applied for the position.16 One woman and one man were selected. The man
had prior EEO activity. A completely different panel of individuals were involved in the
decision-making process in 2016 as opposed to 2012. The 2016 panel decided she still
lacked complexity in her work and rejected her application.
Finally, on the fifth opportunity for promotion for Band IV in early 2017, ten years
after the first promotion was offered, Plaintiff was selected. The 2016 and 2017 panel
were almost identical with the exception of Assistant Director (AD) Giles, who retired
and was replaced by Acting AD Antonaras.17 Plaintiff challenges both the failure to
promote in 2012 and in 2016.
Plaintiff’s Conduct of Employment
During Plaintiff’s lengthy tenure at NOAA, she reported to ASAC Harold Jeff
Radonski from June 2006 until April 2008.18 Since April 2008, she has been supervised
15
See docket 61-2, pages 18-19. She believed the all-male panel consisted of
DSAC Radonski, ASAC Paul Raymond, ASAC Mark Kinsey, and ASAC Houghaboom.
See docket 61-2, page 19.
16
See docket 61-1, paragraphs 93 and 94.
17
See docket 61-1, paragraph 111. The Special Agent in Charge is now called
the AD. See footnote 8 of this order.
18
See docket 61-2, page 14.
-5-
by ASAC Houghaboom.19 Beginning in the 1990's, rumors circulated accusing Plaintiff
of having an extramarital affair with her co-worker, SA Charles Tyer.20 In 2005, Plaintiff
and SA Tyer confronted ASAC Paul Raymond about spreading the rumors.21 Both
Plaintiff and SA Tyer deny ever having an affair. The fall-out from the rumors resulted in
a travel ban imposed on Plaintiff – she was not allowed to travel anywhere with SA Tyer
as of April 2007.22 She claims the ban, which still remains in effect, negatively affected
her ability to qualify for the promotion to Band IV because she was denied numerous
opportunities to participate in the broader civil and criminal investigations assigned to SA
Tyer.23
In March 2008, her then supervisor ASAC Radonski removed her from the
computer forensic team as a Seized Computer Evidence Recovery Specialist (SCERS),
ostensibly to timely complete her case assignments.24 She initially chose to participate on
the team to expand the breadth of her civil and criminal law enforcement experience. Her
19
See docket 61-2, page 14.
20
See docket 61-1, paragraph 3 and docket 81, paragraph 6.
21
See docket 81, paragraph 6.
22
See docket 81, paragraph 7 and docket 81-1, pages 15-16.
23
See docket 81, paragraph 8. ASAC Houghboom, however, testified at
deposition that he was unaware of any travel restrictions because he was not her
supervisor at the time. See docket 71, pages 41-43. At summary judgment, the Plaintiff’s
version is taken as true.
24
See docket 81, paragraphs 1 and 2.
-6-
replacement on the SCERS team was SA Al Samuels, who had no computer forensic
experience.25 The agency paid for his training. Although she continuously asked to be
reinstated to the SCERS team, she was denied membership for four years.26 It was only
after completing a masters in digital forensics and a nine-month process to become an
International Association of Computer Investigative Specialists (IACIS) on her own time
and money, was she finally reinstated to the SCERS team.27 The agency generally paid
for the IACIS training as it did for SA Tyer.28 Plaintiff was the only female member of
the SCERS team and the only member with a masters.
During the four years she was denied reentry to the SCERS team, she was also
denied opportunities for training and to participate in civil and criminal investigations.
According to Plaintiff, ASACs Radonski and Houghaboom denied her opportunities for
training and limited her participation in “more complex” civil and criminal investigations
throughout her career.29 With respect to training, SA Antonaras was selected in August
2006 to attend Surveillance Operations Training, and Plaintiff was never advised about or
offered the opportunity. SA Antonaras was selected two other times to attend training
25
See docket 81, paragraph 3.
26
See docket 81, paragraph 4.
27
See docket 81, paragraph 5.
28
See docket 81, paragraph 5.
29
See docket 81, paragraph 11 and docket 81-1, pages 15-16.
-7-
when ASAC Radonski was her direct supervisor, and she was never advised about or
offered the opportunity. When ASAC Houghaboom was her direct supervisor, SA
Antonaras was selected on two separate occasions, again without Plaintiff being advised
or offered the opportunity, to attend a leadership and special operations courses.
Plaintiff was never offered equivalent complicated case investigations and
assignments as were her male counterparts.30 Under the supervision of ASAC
Houghaboom, SA Antonaras was assigned seventeen investigations and was selected to
provide testimony to a grand jury for criminal investigations.31 During this time, Plaintiff
was told by ASAC Radonski to turn over all of her active investigations to SA Antonaras.
Under both ASAC Radonski or ASAC Houghaboom, SA Antonaras was selected for
several assignments such as the Individual Fisheries Quota (IFQ) Program Coordinator,
Special Operations Coordinator, Panama Express Drug Task Force Representative, and
International Whaling Conference Lead Coordinator.32 Apart from her supervisors
ASACs Radonski and Houghaboom, SA Antonaras led an effort to isolate and ostracize
Plaintiff in the St. Petersburg office and did not share any information on the
investigations he took over from her.33
30
See docket 81, paragraph 11 and docket 70, pages 14-16.
31
See docket 81, paragraph 11.
32
See docket 81, paragraph 11.
33
See docket 81, paragraph 12; docket 80, pages 8-10, 13-14, 19-23 and 25;
docket 73, page 50; docket 64, pages 11, 61-66, 69 and 74; and docket 61-2, pages 175-8-
Although the flavor of Plaintiff’s poor relationship with ASAC Rodonski cannot
be succinctly captured, a few instances are very telling. In November 2007, then SA
Antonaras convinced Plaintiff that she had permission to attend an Orlando work-related
event with him.34 When she returned from Orlando, ASAC Radonski told her she was
lying about SA Antonaras’ assurances. Afterwards, ASAC Radonski required her to
make daily “call-ins” for months to inform him of her schedule.35 He would often not
answer her calls.36
With respect to the make-up of the 2012 promotion panel, Plaintiff had a history
with four of the five members: ASAC Rodonski, ASAC Ronald Messa, ASAC Paul
Raymond, ASAC Houghaboom. Apart from her just-described course of employment
with her two supervisors, ASACs Radonski and Houghaboom, Plaintiff’s career path also
crossed with ASAC Messa and ASAC Raymond. ASAC Messa and ASAC Raymond
both gossiped about the alleged affair with SA Tyer, and perpetuated the rumors. It was
clear that ASAC Houghaboom showed favoritism toward SA Antonaras.
The main reason for denying her application in 2016 was lack of complexity in her
cases, although she had always been denied more complex assignments based on her
181.
34
See docket 81, paragraph 9.
35
See docket 81, paragraph 10.
36
See docket 81, paragraph 10 and docket 81-3.
-9-
supervisors’ manipulation of case assignments. During Plaintiff’s lengthy employment
with the SED, there has only been one female supervisor.37
DISCUSSION
Summary Judgment Standard
Summary judgment is appropriate where there is no genuine dispute regarding any
material fact. Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court
must view the record, and all its inferences, in the light most favorable to the nonmoving
party, in this case the Plaintiff. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Neither credibility determinations nor weighing
the evidence may play any role in summary judgment proceedings. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000); Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The court may not decide a
genuine issue of fact at the summary judgment stage. See Fernandez v. Bankers Nat’l
Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). Credibility decisions are best left for
trial. See Anderson, 477 U.S. at 255, 106 S.Ct. at 1513-14. “The long and short of it is
that the summary judgment rule applies in job discrimination cases just as in other cases.
37
See docket 81, paragraph 14.
-10-
No thumb is to be placed on either side of the scale.” Chapman v. AI Transport, 229 F.3d
1012, 1026 (11th Cir. 2000).
To establish a prima facie case of gender discrimination under Title VII based on
circumstantial evidence, a plaintiff must show the following: (1) she is a member of a
protected class (female); (2) she was qualified to perform the position she sought; (3) she
suffered an adverse employment action, i.e., was denied the promotion; and (4) the
employer awarded the position to a similarly-situated male. Maynard v. Board of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003); Rice-Lamar v. City of Fort Lauderdale,
232 F.3d 836, 842-43 (11th Cir. 2000). Once this showing is made, the burden shifts to
the employer to rebut the presumption of discrimination by producing admissible
evidence “that the plaintiff was rejected, or someone else was preferred, for a legitimate,
nondiscriminatory reason.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 25455, 101 S.Ct. 1089, 1094 (1981). If the prima facie case is rebutted, the plaintiff must
then demonstrate that the proffered reason was pretextual – not the real reason for the
employment decision. Burdine, 450 U.S. at 255, 101 S.Ct. at 1095.
The McDonnell Douglas38 burden-shifting framework, as just espoused, applies
only to single-motive, not mixed-motive, claims based on circumstantial evidence. Quigg
v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1237 (11th Cir. 2016). Single-motive and
38
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973).
-11-
mixed-motive actually refer to different theories of discrimination, not claims for relief.
Quigg, 814 F.3d at 1235 n.4. A single-motive claim requires a showing that bias was the
sole, true reason for the adverse action. Quigg, 814 F.3d at 1235. A mixed-motive claim
is one in which the employer acted in part on lawful reasons and in part on unlawful
discriminatory reasons. Quigg, 814 F.3d at 1235. Under a mixed-motive claim, the more
rigid McDonnell Douglas test does not apply. Quigg, 814 F.3d at 1238-39. Instead, the
court must evaluate whether the plaintiff has produced sufficient evidence “for a
reasonable jury to conclude, by a preponderance of the evidence, that [her protected
characteristic] was a motivating factor for [an] adverse employment decision.” Quigg,
814 F.3d at 1239 (alterations in original) (citation omitted) (internal quotation marks
omitted). In mixed motive claims, the plaintiff need not prove pretext, but only that
discrimination was one factor that motivated the adverse action. Quigg, 814 F.3d at 1240.
Discrimination Claim
The parties agree that this case is based on circumstantial evidence. Plaintiff
argues under either the single or mixed-motive standards, the evidence creates a genuine
issue of material fact for the jury to decide. The Court finds the disputed facts as set forth
above create a triable issue concerning the employer’s discriminatory intent. The totality
of the evidence suggests that there was no level playing field at the SED and that Plaintiff
was targeted to not succeed, arguably based on gender bias. Viewing the submissions in
the light most favorable to the Plaintiff, and taking them as true, she was treated very
-12-
differently than SA Antonaras through denial of training, the easier level of investigations
she was given, and the absence of assignments that would have broadened her experience
over the years. It is also questionable whether the seven factors to determine the quality
of the application for consideration were applied subjectively and with gender in mind.
The Court finds a genuine issue of material fact exists concerning the true reason she did
not receive the promotion in 2012 and in 2016.
Moreover, the Court is of the further opinion that this case presents a factual
scenario which supports a reasonable belief that the better course would be to deny
summary judgment and to proceed to trial on the merits. See Lind v. United Parcel Serv.,
Inc., 254 F.3d 1281, 1285 (11th Cir. 2001). Having expressed that opinion, however,
Plaintiff should be well aware that the mere fact the Court has denied summary judgment
does not mean that Defendant will not prevail following a motion for judgment as a
matter of law submitted pursuant to Rule 50 of the Federal Rules of Civil Procedure. See,
e.g., Abel v. Dubberly, 210 F. 3d 1334, 1337 (11th Cir. 2000) (observing that “[b]inding
precedent in this Circuit, however, expressly permits consideration of a Rule 50 motion
after the denial of summary judgment.”) (footnote omitted) (and cases cited); see also
Gleason v. Title Guarantee Co., 317 F.2d 56, 58 (5th Cir. 1963) (stating that “[s]ound
-13-
practical reasons . . . may justify a trial judge’s denying summary judgment even on the
identical evidence supporting his granting a directed verdict.”).39
ACCORDINGLY, It is therefore ORDERED AND ADJUDGED that
Defendant’s Motion for Summary Judgment (Dkt. 61) is granted as to the retaliation
claim and denied as to the discrimination claim. This case shall proceed to trial on the
discrimination claim.
DONE AND ORDERED at Tampa, Florida, on December 12, 2017.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
39
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth
Circuit rendered prior to the close of business on September 30, 1981.
-14-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?