Pubentz v. Mueller et al
Filing
59
MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 3/5/2013.Mailed notice(sct, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ENAS PUBENTZ,
Plaintiff,
vs.
ERIC H. HOLDER, JR., Attorney General,
U.S. Department of Justice, et al.,
Defendants.
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10 C 7722
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Plaintiff Enas Pubentz (“Pubentz”), a Federal Bureau of Investigation (“FBI”)
linguist, filed a four-count amended complaint alleging national origin discrimination
and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e,
et seq., and a First Amendment retaliation claim. Defendants Eric Holder, Jr., U.S.
Attorney General; and Robert Mueller, III, Director of the FBI; (collectively
“Defendants”) bring the present motion for summary judgment pursuant to Federal Rule
of Civil Procedure 56. For the following reasons, Defendants’s motion is granted.
BACKGROUND1
Pubentz is a female United States citizen of Israeli national origin. Pubentz has
worked as an FBI Language Analyst since 2003. Her duties include translating oral and
written materials. Pubentz’s work product has generally been regarded as well done
and she received accolades for the quality of her work product.
Chicago FBI Office
In August 2008, while serving in a managerial role as a relief supervisor, an FBI
agent requested Pubentz to assist him with an emergency translation matter requiring
immediate clarification. Pubentz complied, and the agent was happy with her work.
However, Pubentz’s supervisor at the time, Martha Salazar (“Salazar”), cited Pubentz
for her failure to follow FBI protocol in two respects. Protocol required Pubentz to
direct the requesting FBI agent to the analyst’s respective supervisor, so that the matter
could be appropriately assigned, instead of the assignment being unilaterally accepted.
Salazar noted that if the situation were in fact an emergency, FBI procedural protocol
requires the analyst to notify her supervisor in a timely fashion. Pubentz did not contact
1
The following facts are taken from the parties’ respective statements and exhibits filed
pursuant to Northern District of Illinois Local Rule 56.1. The Court reviews each Local Rule 56.1
statement and disregards any argument, conclusion, or assertion unsupported by the evidence in the
record. The Defendants object to the form of Pubentz’s statement of facts. Although Pubentz does
not strictly adhere to the requirements of Local Rule 56.1, the responses do not amount to a total
non-compliance with Local Rule 56.1 which is significant enough to warrant ignoring Pubentz’s
statement of facts. Defendants ’s objection is overruled.
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Salazar at anytime to inform her of the assignment. Salazar documented this incident
in Pubentz’s October 2008 performance appraisal and gave her a rating of “minimally
successful” in the category of “maintaining high professional standards.” Salazar gave
Pubentz a “satisfactory” rating in the category concerning the quality of her work
product. On October 14, 2008, Salazar removed Pubentz from her position as a relief
supervisor. Pubentz made efforts to appeal the “minimally successful” rating and was
not successful.
In early December 2008, an email was sent to all linguists soliciting candidates
to serve as relief supervisors. The qualifications stated in the email required a
“successful” or higher rating on all critical elements of the most recent performance
evaluation and no occurrences of poor professionalism or failure to comply with FBI
policies and procedures within the last 12 months. In spite of Pubentz’s removal from
her position as a relief supervisor in October 2008, she asked Salazar about her viability
for submitting a successful application. Neither England nor Salazar recommended her
for the relief supervisory position.
Colleen England (“England”) took over as Pubentz’s supervisor in late December
2008. In January 2009, FBI Agent Chris Carlin (“Carlin”) arranged a voluntary training
event and invited a Palestinian speaker to come to the Chicago FBI Office to discuss the
conflict involving Israel and Hamas in the Gaza Strip. The purpose of the training was
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to present a distinct perspective to help FBI employees perform their duties.2 Pubentz
viewed the presentation as being skewed in favor of the plight of Palestinians and
unrepresentative of the actual conflict.
Prior to the event, England sent an e-mail informing attendees that they should
not enter into a confrontational debate with the speaker. Pubentz never received the
email prior to the event. The presentation took place at a training space at the Chicago
FBI Office. During the course of the presentation Pubentz challenged the speaker on
several of his points and implied that the facts given by the speaker were fabricated, in
the interest of providing a skewed version of his account. Carlin, in attendance,
determined that Pubentz conducted herself in a manner that was out of line and was not
how a guest in an FBI space should be treated.
After the event, Pubentz sent an email to England, informing her about what
transpired at the event. Pubentz’s email stated; “before you hear it through the
grapevine, I did bring up a few points during the presentation, being that I am from the
region and I’m well informed about the speaker insisted to be facts. I hope I didn’t
cause any problems by doing so . . . .” Carlin met with England after the presentation
and in the course of explaining the confrontation between Pubentz and the speaker, he
2
Pubentz objects to England’s asserted purpose for the Palestinian training event. Pubentz
argues that since England did not attend the presentation she could not have known the nature of the
lecture. England does not have to be in attendance of the event to know the purpose the event was
to serve. Pubentz’s objection is overruled.
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referred to Pubentz as a “Zionist Arab.” After England received the post-event email
from Pubentz and fielded comments from Carlin, and other attendees, England drew the
conclusion that Pubentz conducted herself in an inappropriate manner.3 England told
Pubentz that when she communicates in a hostile and persistent manner, people do not
want to collaborate with her and they distrust her ability to be objective and open
minded, two important qualities of an analyst. In February 2009, England sent Pubentz
an email discussing with her areas she should improve if she wanted to be considered
for a promotion, including improving her time management, being more respectful in
emails to co-workers, not embarrassing the FBI in forums with community
representatives, and maintaining good relations with her coworkers.
FBI linguists work under the GS pay schedule which ranges from level GS-7 to
GS-13. Linguists who achieve the GS-13 level are expected to perform with an
increased level of responsibility. Pubentz has never applied for promotion to GS-13.
For promotion to level GS-13, a candidate must have demonstrated leadership as well
as possess a heightened proficiency in using language skills in an intelligence
environment. The decision to promote a linguist to the GS-13 level is made by a
3
Pubentz asserts that England’s conclusion that Pubentz conducted herself in an inappropriate
manner is hearsay. England’s conclusion was based on the feedback she received from other
members of the audience that saw Pubentz interact with the presenter. England’s opinion is not
being used establish the proof of the matter asserted, that Pubentz conducted herself in an
inappropriate manner. See Fed. R. Evid. 801. England’s conclusions served as the basis for her to
make managerial decisions.
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promotion board, organized by national language service managers at the Washington
D.C., FBI headquarters. The decision is based on a promotion package, prepared by the
linguist, which must provide examples, narrative details, and work samples to show the
candidate’s achievement under demonstrated competencies as set forth in the FBI
promotional policy.
Pubentz discussed with England the viability of an application for promotion to
the GS-13 pay scale on multiple occasions. England voiced her concerns regarding
Pubentz’s professionalism and disregard for authority. She also reviewed with Pubentz
the criteria for the GS-13 package, which requires that the candidate regularly work at
the GS-13 level. England told Pubentz that in her opinion her work was not sufficient
for a GS-13 level position and the best time for preparing her GS-13 package would be
after she improved her performance rating. England told her that the Assistant Special
Agent in Charge (“ASAC”) Mitchell Marrone (“Marrone”) had returned a GS-13
promotion package from a different applicant because the applicant’s overall rating was
only at a “successful” level. However, Pubentz’s most recent rating was only
“minimally successful” in the area of professionalism.
On April 10, 2009, Pubentz met with an Equal Employment Opportunity
(“EEO”) counselor to explore her ability to file a discrimination complaint. Two weeks
later on April 22, 2009, Pubentz sought the counsel of ASAC Marrone and met with
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him in his office to discuss workplace issues that she was encountering. Pubentz
discussed how she was denied training opportunities and England’s decision not to
recommend her for a promotion. Pubentz eventually told Marrone that she intended to
file an Equal Employment Opportunity Commission (“EEOC”) charge concerning
Carlin’s comment calling her a “Zionist Arab.” Marrone felt that proceeding with the
conversation concerning an EEOC discrimination claim would be inappropriate. The
meeting was promptly concluded and Marrone asked Pubentz to leave his office. On
May 8, 2009 Pubentz filed an EEOC charge alleging that she was subjected to
discrimination because of her sex and national origin.4
San Francisco FBI Office
Unhappy with her work environment in Chicago, Pubentz applied for a transfer
to San Francisco, California. Management in Chicago accommodated Pubentz’s request
and she was allowed to move within three months of her request for transfer. In August
2009 Pubentz began in the San Francisco FBI Office. From the beginning of her time
in San Francisco until the present time, Pubentz’s supervisor has been Foreign
Language Program Coordinator William Reilly (“Reilly”). Reilly had never spoken
4
Pubentz’s May 8, 2009 EEOC charge cites her sex and national origin as being the
precipitating factors which form the basis of her charge. Pubentz’s amended complaint cites national
origin and race as the basis for the Defendants’ discriminatory actions. For the purpose of
determining the instant motion only Pubentz’s claim of national origin discrimination will be
assessed due to the absence of race discrimination on her EEOC charge. Dear v. Shinseki, 578 F.3d
605, 609 (7th Cir. 2009) (the EEOC charge and the complaint must “describe the same conduct and
implicate the same individuals.”).
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with England or any members of the Chicago FBI Office’s management team about
Pubentz prior to her transfer. Reilly was not aware of Pubentz’s EEOC case prior to her
arrival. He became aware of the case in August 2009, when he assisted Pubentz in
setting up an interview with an EEO investigator concerning Pubentz’s Chicago EEOC
charge.
In September 2009, Pubentz asked Reilly to recommend her for a supervisory
position. Reilly advised Pubentz that he appreciated her interest in the position,
however because she had recently started working for him and he had limited
knowledge of her performance that he could not recommend her at that time.
In late 2009, Pubentz was assigned to perform the translation work for a complex
national security investigation. After receiving the assignment Pubentz failed to
forward any completed work to the agent assigned to the case. Special Agent David
Miller (“Miller”)5 met with Pubentz to discuss her lack of progress. Pubentz told the
agent that she would make the determinations on what to report and what not to report,
based on her perception of what was pertinent.
5
Pubentz objects to the use of Special Agent David Miller and Supervisory Special Agent
Enrique Alvarez as a witness to provide the circumstances which led to Pubentz’s placement on PIP.
The record indicates that on March 20, 2012 an email was sent to Pubentz’s counsel offering
deposition dates. On March 27, 2012 a letter was faxed to Pubentz’s counsel indicating that David
Miller would be a potential defense witness. Pubentz’s objection is overruled.
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In early 2010 Pubentz again asked Reilly if he would recommend her for a
promotion to a supervisory position. Despite Pubentz’s “successful” rating on her
January 2010 performance appraisal Reilly did not recommend her as a relief
supervisor. Reilly informed Pubentz that she was welcome to submit an application but
that she should not expect his endorsement because he determined that she had not
exercised sound judgment in a leadership role. Furthermore on March 15, 2010 Reilly
advised Pubentz that she would not be approved to participate in any training unrelated
to her analyst duties or her general development as a Bureau employee. On May 18,
2010 Pubentz contacted an EEO counselor in San Francisco concerning the alleged
retaliatory conduct of Reilly.
On June 7, 2010, Reilly notified Pubentz that she was being placed on a
Performance Improvement Plan (“PIP”) for a period of 90 days. Pubentz was placed
on a PIP within two months of contacting her EEO counselor. Pubentz successfully
completed the PIP, and eventually returned to her translation work. Pubentz’s return
back to her analyst position was conditioned on her commitment not to object to the
nature of the translations assigned to her. On September 17, 2010, Pubentz filed a
second EEOC charge alleging she was retaliated against in the San Francisco FBI
Office as a result of the previous EEOC charge she filed in Chicago.
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On March 15, 2011, Pubentz filed a four count amended complaint alleging,
discrimination in violation of Title VII (Count I); retaliation in violation of Title VII
(Counts II and III); and retaliation in violation of the First Amendment (Count IV). On
July 18, 2012 the Defendants moved for summary judgment under Federal Rule of Civil
Procedure 56.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, discovery, disclosures,
and affidavits establish that there is no genuine issue of material fact, such that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Winsley v.
Cook Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009). The moving party bears the initial
burden of showing that no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the non-moving party to
show through specific evidence that a triable issue of fact remains on issues on which
the non-movant bears the burden of proof at trial. Id. The non-movant may not rest
upon mere allegations in the pleadings or upon conclusory statements in affidavits; she
must go beyond the pleadings and support her contentions with proper documentary
evidence. Id. The court considers the record as a whole and draws all reasonable
inferences in the light most favorable to the party opposing the motion. Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact
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exists when “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 (1986). In
considering a motion for summary judgment, a court construes all facts and draws all
reasonable inferences in favor of the non-moving party. Smith v. Hope Sch., 560 F.3d
694, 699 (7th Cir. 2009).
DISCUSSION
Pubentz alleges that the Defendants violated Title VII and the First Amendment
over the course of her employment with the FBI as a Language Analyst. The first three
counts allege that the Defendants violated Title VII when they discriminated against her
on the basis of her national origin and additionally retaliated against her after she filed
two EEOC charges, initially in Chicago and subsequently in San Francisco. The fourth,
and final count alleges that the Defendants retaliated against her after exercising her
First Amendment Right of Free Speech.
I. Discrimination on the Basis of National Origin (Count I)
Pubentz alleges that she experienced discrimination on the basis of her national
origin in violation of Title VII. Title VII prohibits employers from “discriminat[ing]
against any individual with respect to h[er] compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). The Court notes that Pubentz’s allegations
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of workplace misconduct are so numerous that relegating which incidents she considers
an adverse employment action has proven challenging. In the interest of providing a
thorough assessment of her claims we analyze each allegation of an adverse
employment action that she plausibly asserts. Pubentz argues that she can establish her
Title VII discrimination claim in two ways. First, Pubentz seeks to use the indirect
method to prove her disparate treatment claim for conduct which occurred during her
tenure in Chicago. Second, Pubentz alleges that the Defendants subjected her to a
hostile work environment in both Chicago and San Francisco. The Court will examine
both methods of establishing a Title VII discrimination claim.
A. Disparate Treatment Claim under the Indirect Method
A plaintiff may establish a claim under Title VII by either the direct or indirect
method. Silverman v. Board of Educ. of the City of Chicago, 637 F.3d 729, 733 (7th Cir.
2011). Here, Pubentz attempts to prove her claim only under the indirect method. To
prove discrimination under the indirect method, Pubentz must establish that: 1) she is
a member of a protected class; 2) her job performance met her employer’s legitimate
expectations; 3) she suffered an adverse employment action; and 4) at least one
similarly situated employee, not in her protected class, was treated more favorably. See
Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 599-00 (7th Cir. 2010) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If these elements are
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established, discrimination is inferred and the burden of production shifts to the
defendants to raise a legitimate, nondiscriminatory reason for the adverse employment
action. Naik, 627 F.3d at 600. Once a legitimate reason is offered, the inference of
discrimination is rebutted, and the plaintiff must establish that the offered reason is a
pretext for unlawful discrimination. Id.
Pubentz claims that the Defendants, 1) failed to credit her work performance on
two terrorism cases in 2007 and her removal from her relief supervisory position in
2008; 2) called her a “Zionist Arab;” 3) refused to recommend her for a pay grade
increase and a supervisory position; 4) displayed an unwillingness to discuss her
workplace complaints; and 5) refused to allow her to participate in training
opportunities on several different occasions. Each of Pubentz’s claims in her amended
complaint are framed as separate disparate acts of discrimination. The parties contest
whether Pubentz suffered an adverse employment action and whether Pubentz has
provided a similarly situated employee not in her protected class who was treated more
favorably. The Court will address each contested issue in order.
1. Adverse Employment Action
Pubentz claims that she suffered a multitude of adverse employment actions
during the course of her tenure in Chicago. Claims under Title VII may arise out of a
tangible, adverse employment action such as a termination, a demotion, or a failure to
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promote. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “[T]he
purpose of the adverse employment action requirement is to provide a reasonable
limiting principle for the type of conduct actionable under the statute.” Phelan v. Cook
County, 463 F.3d 773, 780 (7th Cir. 2006). “[An] adverse job action must be materially
adverse, meaning more than a mere inconvenience or an alteration of job
responsibilities.” Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999).
“While adverse employment actions extend beyond readily quantifiable losses, not
everything that makes an employee unhappy is an adverse action.” O’Neal v. City of
Chicago, 392 F.3d 909, 911 (7th Cir. 2004). The Seventh Circuit recognizes three
categories of cases where a requisite act of discrimination exists. Nichols v. Southern
Ill. Uni.-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007). First, cases where an
employee’s compensation or other financial terms of employment are diminished. Id.
Also, cases in which a lateral transfer, without a change of financial terms, reduces the
employee’s career prospects by allowing her skills to atrophy. Id. Finally, cases in
which the employee is not moved to a different job, but the conditions under which she
works are changed in a way that subjects her to humiliating, degrading, unsafe,
unhealthy, or otherwise significantly negative alteration in the workplace environment.
Id.
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Pubentz argues that Salazar failed to give her a positive performance review
following the work she performed in two terrorism cases in 2007. Pubentz also
contends that her removal from her relief supervisor position on October 14, 2008 was
a materially adverse employment action. The Defendants challenge Pubentz’s two
assertions on the grounds that she did not timely file an EEOC charge concerning the
2007 and 2008 employment actions. See 42 U.S.C. § 2000e–5 (e)(1); Stepney v.
Naperville Sch. Dist., 392 F.3d 236, 239 (7th Cir. 2004). A federal employee who
believes that they have been discriminated against on the basis of national origin must
contact a counselor within 45 days of the alleged discriminatory act. 29 C.F.R.
§ 1614.105. Failure to do so bars federal employees from pursuing a Title VII action
against the government. Smith v. Potter, 445 F.3d 1000, 1007 (7th Cir. 2006). In
determining when such an action accrues, the “proper focus is upon the time of the
discriminatory acts, not upon the time at which the consequence of the acts becomes
most painful.” Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (citing Abramson v.
University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979)). A time barred discriminatory
act is not actionable, even if it is related to acts alleged in timely filed charges. National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (7th Cir. 2002).
In this case, Pubentz first made contact with an EEO counselor on April 10, 2009.
Therefore for the purpose of Pubentz’s discrimination claim, any discrete acts
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perpetrated before February 24, 2009 cannot provide a cognizable basis for her
discrimination claim. Pubentz’s claims concerning Salazar’s lack of recognition of
Pubentz’s work performance in 2007 and Pubentz’s removal from her relief supervisory
position on October 14, 2008 are both time barred.
Next, Pubentz claims that Carlin’s description of her as a “Zionist Arab”
constitutes an adverse employment action. Pubentz has not linked Carlin’s term to an
adverse employment action she suffered. Carlin’s comment was said outside the
presence of Pubentz and was voiced in a private meeting between Carlin and England.
The record does not show that Carlin had a supervisory role or had the power to make
employment decisions concerning Pubentz. Although England, Pubentz’s supervisor,
was present during the meeting the evidence clearly establishes that England did not
utter a comment concerning Pubentz’s national origin. In the absence of evidence
showing a negative alteration in Pubentz’s workplace environment or a change in the
conditions of her position, Pubentz has failed to show that Carlin’s comment was an
adverse employment action.
Third, Pubentz contends that the Defendants discriminated against her when she
was not given a promotion. Pubentz’s lack of promotion claims encompass two actions.
First, Salazar and England not recommending Pubentz for a supervisory position.
Second, Pubentz’s failure to be granted a pay grade increase to a GS-13 pay scale.
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Pubentz must establish that the Defendants granted a promotion to someone outside of
her protected group who was not better qualified than her. Grayson v. City of Chicago,
317 F.3d 745, 748 (7th Cir. 2003).
Although Pubentz desired to be reinstated in a supervisory position, Pubentz’s
record did not meet the criteria for a supervisory role. The record indicates that
supervisory positions require specific performance criteria which must be met.
Pubentz’s “minimally successful” rating from her August 2008 review prohibited her
from meeting the performance levels required of a supervisory position. With these
requirements in mind neither Salazar nor England recommended Pubentz for a
supervisory position. Additionally, Pubentz remained in her position as an analyst after
speaking to Salazar and England about supervisory positions. Since Pubentz’s position
did not change and her workplace was not significantly altered the Court does not find
that she suffered an adverse employment action.
Pubentz asserts that the Defendants failure to promote her with a pay grade
increase constitutes an adverse employment action. Pubentz seeks to draw a tenuous
link between the denial of pay grade increase and a hypothetical promotion that she
never applied for. Gaines v. White River Envtl. P’ship, 66 Fed. Appx. 37, 39 (7th Cir.
2003) (holding that a plaintiff must establish that they applied for a promotion to
sufficiently establish an adverse action); See Grayson, 317 F.3d at 748-49; Freeman
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v. Lewis, 675 F.2d 398, 401 (D.C. Cir. 1982) (holding that when considering a failure
to promote, the plaintiff must show that she applied for and was rejected from the
position, to prove an adverse action). Because Pubentz never applied for the pay grade
increase and the conditions of her position were not changed, her mere inquiry
concerning her viability for a promotion cannot serve as grounds for a Title VII
discrimination claim.
Fourth, Pubentz argues that ASAC Marrone’s unwillingness to discuss her
workplace complaints and her intention to file an EEOC charge was a materially
adverse employment action. The record indicates that Marrone asked Pubentz to leave
his office because he did not feel comfortable discussing a potential EEOC charge. The
trivial contention that a supervisor’s unwillingness to discuss workplace issues, without
more, constitutes an adverse action is not persuasive. No evidence has been elicited
indicating that Marrone’s refusal to discuss the matters prejudiced Pubentz’s position
in anyway.
Pubentz claims that the denial of training opportunities was an adverse
employment action. In some cases “[a] discriminatory denial of job related training can
constitute an adverse employment action under Title VII.” Durkin v. City of Chicago,
341 F.3d 606, 611 (7th Cir. 2003). Pubentz claims that her denial of training inhibited
her ability to grow professionally. The record shows that Pubentz participated in over
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fifteen classroom and computer based training courses from the time she began at the
FBI until her tenure in Chicago ended in 2009. Over half of those training courses
occurred in the time period of 2008 to 2009. The record also indicates that on two
occasions Pubentz was interested in attending training courses which were not open to
linguists. Pubentz does not allege that she was denied training opportunities which
were opened to all linguists, the record shows that she was only denied training which
she was not eligible to participate in. Pubentz’s exposure to training, related to her field
of employment, was robust and she was allowed to participate in a broad array of
training programs. The limited training opportunities that were denied to Pubentz are
not substantial enough to constitute an adverse employment action.
The Court finds that Pubentz has not suffered a materially adverse employment
action.
2. Similarly Situated Individuals
Even if we were to assume that Pubentz had sufficiently established that she had
suffered an adverse employment action, she nevertheless fails to identify a similarly
situated employee to render an adequate comparison. To determine if employees are
similarly situated the Court must find that there are “sufficient commonalities on key
variables between the plaintiff and the would be-comparator to allow the type of
comparison that, taken together with the other prima facie evidence, would allow a jury
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to reach an inference of discrimination.” Humphries v. CBOCS West, Inc., 474 F.3d
387, 405 (7th Cir. 2007). Comparators must have “engaged in similar-not identicalconduct to qualify as similarly situated.” Perick v. Indiana Univ.- Purdue Univ.
Indianapolis, 510 F.3d 681, 691 (7th Cir. 2007). “If an employer takes an action
against one employee in a protected class but not another outside that class, one can
infer discrimination.” Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012). The
relevant inquiry focuses on whether the employer subjected two different classes of
employees differently. Id. “[W]hen uneven discipline is the basis for a claim of
discrimination, the most relevant similarities are those between the employees’ alleged
misconduct, performance standards, and disciplining supervisor,” rather than the job
description of cited employees. Rodgers v. White, 657 F.3d 511, 518 (7th Cir. 2011).
Pubentz has provided the names and titles of five linguists that she asserts were
treated more favorably than her. Pubentz has not provided sufficient information
concerning Nabil Mikhail (“Mikhail”) and Pierre Kattar (“Kattar”) to render an
adequate comparison. The only evidence provided for Mikhail and Kattar shows that
both FBI employees were linguists and both were promoted to the GS-13 pay scale after
submitting an application for promotion. The record does not indicate which FBI Office
the linguists worked for, which supervisor oversaw their promotion, or their relevant
performance evaluation. In the absence of sufficient information concerning Mikhail
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and Kattar, the Court focuses its analysis on the three other FBI linguists located in the
Chicago FBI Office.
Pubentz submits that FBI linguists Steven Youkhana
(“Youkhana”), Erastus Musyoka (“Musyoka”) and Ewa Plojaz (“Plojaz”) are similarly
situated employees, are not in Pubentz’s protected class, and were treated more
favorably than her. Although the three linguists are all Language Analysts, like
Pubentz, within the Chicago FBI Office, the comparison ends there.
First, the record reveals that none of the employees were subject to the same type
of employment decision. All three linguists submitted GS-13 promotion packages
between 2008 and 2011, but only Youkhana and Plojaz were actually promoted to the
GS-13 grade. The record indicates that both linguists who were granted a pay grade
increase had outstanding performance ratings (the highest of five possible levels). As
previously noted Pubentz never submitted a GS-13 package and had significantly lower
performance reviews, leaving an inadequate basis to make a meaningful comparison of
the employment decisions. Other than the three linguists GS-13 applications for pay
grade increase, the record does not show that any of the linguists were granted or
engaged in any conduct which would serve as a basis to support Pubentz’s other claims
of disparate treatment.
Second, Pubentz has not established that the employees were under the direction
of the same supervisor. Little v. Ill. Dep’t. of Revenue, 369 F.3d 1007, 1012 (7th Cir.
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2004) (“A similarly-situated employee must have been disciplined, or not, by the same
decision maker who imposed an adverse employment action on the plaintiff.”). Karissa
Calvo and Jeanne White (“White”) were the two linguists’ supervisors who respectively
oversaw the promotion of Youkhana and Plojaz. Although Pubentz identified White
as a supervisory agent in her EEO case, the record indicates that White never directly
supervised Pubentz or was involved in any disciplinary or promotional decision
concerning Pubentz. The record does not show that either of the promoted linguists
were directly supervised by Salazar or England, the two supervisors who directly
supervised Pubentz and allegedly denied her promotional opportunities. England did
realize that Youkhana and Plojaz were granted the GS-13 pay grade increase, however
she was not directly responsible for the submission of their promotional packages. Not
only has Pubentz failed to show that the employment actions are comparable, she does
not show that the comparator employees were subject to the same supervisors’
discretion.
Pubentz has not met her burden of showing that she suffered a materially adverse
employment action or that other similarly situated individuals received more favorable
treatment in the Chicago FBI Office. Because Pubentz has not established a prima facie
case for discrimination, it is unnecessary for us to reach the issue of pretext.
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Defendants’ summary judgment motion as to Pubentz’s disparate treatment claims
discussed in this section is granted.
B. Hostile Work Environment Resulting in Discrimination
Pubentz also contends that she was subjected to a pattern of harassing conduct
that constituted a hostile work environment. The conduct which Pubentz alleges formed
a hostile work environment is broad and spans from her tenure in Chicago through her
time in San Francisco.
Title VII prohibits employers from permitting a work
environment that is hostile to employees because of their inclusion in a protected class,
such as national origin. See Cerros v. Steel Tech., Inc., 288 F.3d 1040, 1045 (7th Cir.
2002); Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001). To
establish a hostile work environment claim based on national origin, Pubentz must
establish that: 1) her work environment was both objectively and subjectively offensive;
2) the harassment was based on her national origin; 3) the conduct was either severe or
pervasive; and 4) there is a basis for employer liability. See Dear v. Shinseki, 578 F.3d
605, 611 (7th Cir. 2009). The parties dispute whether the conduct of the Defendants
was based on Pubentz’s national origin and whether she was subjected to severe or
pervasive harassment. Each contested element will be resolved in turn.
1. Harassment Based on National Origin
Under Title VII, harassment must be based on the plaintiff’s protected status. See
e.g. Hardin v. S.C. Johnson & Sons, Inc., 167 F.3d 340, 345 (7th Cir. 1999). Although
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Pubentz need not show that the conduct against her was explicitly motivated by her
national origin, the conduct must have a racial character or purpose to support a hostile
work environment claim. See Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir.
2004). Pubentz claims that she endured a hostile work environment in Chicago which
is evidenced by 1) Salazar’s failure to acknowledge Pubentz’s work and her removal
from the supervisory position she held; 2) Carlin calling Pubentz a “Zionist Arab” after
the speaker event; 3) Salazar and England refusing to recommend Pubentz for a
supervisory position, on two occasions; 4) ASAC Marrone’s unwillingness to discuss
Pubentz’s workplace complaints; and 5) the refusal to allow Pubentz to participate in
training opportunities on multiple different occasions. Additionally, Pubentz claims that
she was also subjected to a hostile work environment in San Francisco where her
supervisor 6) did not recommend her for two supervisory positions; 7) refused to allow
her to attend training; and 8) failed to give her enough work assignments and placed her
on a PIP.
A. Environment in Chicago
As previously noted, Pubentz’s removal from her supervisory position and
Salazar’s failure to acknowledge her work were not timely filed and therefore not
considered for the purpose of her Title VII disparate treatment claim. Pubentz correctly
points out that for the purposes of establishing her hostile work environment claim the
Court should consider these events. See National, 536 U.S. at 122 (“A charge alleging
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a hostile work environment claim will not be time barred so long as all acts which
constitute the claims are part of the same unlawful employment practice and at least one
act falls within he time period.”). Pubentz consistently references an award she
received for the work she performed on the 2007 terrorism cases. Pubentz elicits this
award to show the distinction between her negative performance review and the quality
of her work which merited an accommodation. However, the award indicates that
Pubentz excels in the quality of her work product but potentially lacks in other
important areas of work performance, such as professionalism and following protocol.
Pubentz has not provided any evidence indicating the actions were taken because of her
national origin.
Pubentz claims the term “Zionist Arab,” which Carlin used to describe her to
England, created a hostile work environment. The term specifically focused on
Pubentz’s beliefs and national origin. The Court finds that the term “Zionist Arab” is
sufficiently tied with Pubentz’s national origin to constitute harassment based on
Pubentz’s protected class.
Pubentz asserts that the denial of multiple training opportunities contributed to
the hostile work environment. The record indicates that Pubentz was denied the ability
to participate in the training opportunities because the training programs were not open
to linguists and therefore she was not eligible. Pubentz has not provided any evidence
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that suggests the denials were because of her national origin. This conduct therefore
cannot act as a premise for a hostile work environment claim.
Pubentz argues that ASAC Marrone’s unwillingness to discuss her workplace
complaints and her intention to file an EEOC charge was harassment because of her
national origin. The record lacks any indication that ASAC Marrone was motivated by
discriminatory intent in excusing Pubentz from his office after she made her intentions
clear concerning filing an EEOC charge. The evidence shows that ASAC Marrone felt
uncomfortable about discussing the matter with Pubentz and determined that the
discussions would be inappropriate. Pubentz submits no evidence creating a material
dispute of fact as to Marrone’s motive for declining to discuss Pubentz’s EEOC charge
with her.
Pubentz contends that she was denied promotional opportunities because of her
national origin. Contrary to Pubentz’s contention, the record indicates that Pubentz
never applied for the pay scale promotion and a promotion to a supervisory position was
foreclosed by her “minimally successful” rating in the category of professionalism.
Pubentz’s failure to apply and her performance record served as the bars to her
promotion. The record is absent any indication that her national origin played even the
slightest role in her inability to get promoted. Pubentz has failed to establish that she
was denied promotions due to her national origin.
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B. Environment San Francisco
Pubentz renews her claim that she was denied promotional opportunities because
of her national origin in San Francisco. As in Chicago, Pubentz has not produced any
evidence indicating that Reilly denied her promotions because of her national origin.
The record indicates that Pubentz sought out Reilly’s recommendation for a promotion
on two different occasions. On both occasions Reilly did not recommend her. Reilly’s
decision not to recommend Pubentz was based on his limited interactions with her in
the first instance and his feeling that she was unqualified for a supervisory position on
the second occasion. The record is absent any indication that her national origin played
even the slightest role in Reilly’s decision. Pubentz has failed to establish that she was
denied promotions due to her national origin.
Pubentz asserts that Reilly’s denial of her two training requests was part of and
contributed to a hostile work environment. The record indicates that the training
opportunities we not opened to Language Analysts, therefore Pubentz was not eligible
for the training.
Pubentz has failed to establish that she was denied training
opportunities due to her national origin.
Finally, Pubentz claims that Reilly failed to give her enough work assignments
during the period of March thru June of 2010. Additionally Pubentz claims that her
placement on a PIP was part of a hostile work environment. Again, Pubentz has not
included any evidence that the Defendants actions were motived by her national origin.
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The Court finds that within the confines of the vast array of workplace
complaints and grievances Pubentz elicits, only Carlin’s comment labeling Pubentz a
“Zionist Arab” could serve as the basis of a hostile work environment claim. Pubentz
has failed to adduce evidence that the remaining incidents were on account of her
national origin. See Hildebrandt v. Ill. Dept. of Natural Res., 347 F.3d 1014, 1035 (7th
Cir. 2003) (reiterating the requirement of demonstrating that harassment occurred
because of the plaintiff’s inclusion in a protected class). The Court must now determine
if Carlin’s “Zionist Arab” comment was sufficiently severe or pervasive to meet the
requirements of a prima facie hostile work environment claim.
2. Conduct Either Severe or Pervasive
In establishing that the alleged harassment was sufficiently severe or pervasive
to alter the conditions of a plaintiff’s employment, the plaintiff “must show that her
work environment was both subjectively and objectively offensive; ‘one that a
reasonable person would find hostile or abusive, and one that the victim in fact did
perceive to be so.’” Gentry v. Export Packaging Co., 238 F.3d 842, 850 (7th Cir. 2001)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787(1998)). Courts examine
a variety of factors when evaluating whether a workplace is hostile, including the
frequency of the discriminatory conduct, its severity, whether the conduct is physically
threatening, humiliating or a mere offensive utterance, and whether it unreasonably
interferes with an employee’s job performance. Andonissamy v. Hewlett-Packard Co.,
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547 F.3d 841, 847 (7th Cir. 2008). The Seventh Circuit has noted that offensive
statements made outside of the plaintiff’s presence, even if accompanied by “a few
[offensive] statements made directly to h[er],” do not constitute “harassment [that is]
so severe or pervasive that it alters the conditions of the plaintiff’s employment.”
Thompson v. Mem. Hosp. of Carbondale, 625 F.3d 394, 401 (7th Cir. 2010). “Title VII
. . . will not find liability based on the ‘sporadic use of abusive language.” Ford v.
Minteq Shapes & Servs, Inc., 587 F.3d 845, 848 (7th Cir. 2009) (quoting Faragher, 524
U.S. at 788).
Pubentz contends that Carlin’s comment to England, calling her a “Zionist Arab”
was sufficiently severe. In determining the severity of the comment the Court cannot
divorce the alleged harassment from the context in which it occurred. See Hilt-Dyson,
282 F.3d at 464. The evidence shows that Pubentz and Carlin had worked together for
more than five years and Carlin considered Pubentz a friend. Carlin made this
statement to England following the Palestinian Speaker Event to explain Pubentz’s
aggressive viewpoints during the FBI presentation. Carlin’s comment was made during
the course of a private conversation between England and himself. Carlin was seeking
to explain why the confrontation between Pubentz and the speaker “got heated and why
it got a little out of hand.” The record indicates that Carlin was describing why Pubentz
may be biased on the Gaza Strip issue, which was described as unrepresentative of
Arabs in the region. Carlin’s comment, made outside the presence of Pubentz, on first
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glance may appear crass. When viewed in the context in which the comment was said,
however, it is not sufficiently severe or pervasive to support a hostile work environment
claim. See Ngeunjuntr v. Metro. Life Ins. Co.,146 F.3d 464, 467 (7th Cir. 1998).
The Court finds that Pubentz has not provided evidence of harassment which
was sufficiently severe or pervasive to satisfy the requirements for a hostile work
environment claim. We conclude that a reasonable jury could not find that Pubentz
endured a hostile work environment sufficient to establish a Title VII discrimination
claim. Accordingly, the Defendants’s motion for summary judgment is granted.
II. Retaliation (Count II)
Pubentz alleges that she was retaliated against after filing her initial EEOC
charge in Chicago in April 2009. Pubentz’s amended complaint states two retaliation
claims; one concerning retaliation in the Chicago FBI Office, the other concerning
retaliation in the San Francisco FBI Office. For the purposes of resolving the first
retaliation claim the Court considers all conduct occurring in Chicago.
The anti-retaliation provision of Title VII prohibits an employer from taking an
adverse employment action against an employee because she has filed an employment
discrimination charge. See 42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe R.R. Co.
v. White, 548 U.S. 53, 62 (2006). As with discrimination claims under Title VII,
retaliation may be proven through either the direct or indirect method. See Weber v.
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Univs. Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010). Pubentz argues that her
retaliation claim can be established under the direct and indirect methods.
Proving retaliation through the direct method requires Pubentz to establish that
1) she engaged in protected conduct; 2) that she suffered an adverse employment action;
and 3) there is a causal connection between the two. Leitgen v. Franciscan Skemp
Healthcare, Inc., 630 F.3d 668, 673 (7th Cir. 2011). Under the indirect method,
Pubentz must establish a prima facie case of retaliation by showing that: 1) she engaged
in a statutorily protected activity; 2) she met the employer’s legitimate expectations;
3) she suffered a materially adverse employment action; and 4) she was treated less
favorably than similarly situated employees who did not engage in statutorily protected
activity. Tomanovich v. City of Indianapolis, 457 F.3d 656, 666 (7th Cir. 2006). If
Pubentz satisfies these elements the burden shifts to the Defendants to produce a
legitimate, non-retaliatory reason for its actions. Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2009); Nichols, 510 F.3d at 785. If the Defendants do this, the burden
shifts back to the Pubentz, who must show that the Defendants’ stated reason is a
pretext to a discriminatory motive. Id. The parties contest whether Pubentz suffered
an adverse employment action to sufficiently support her retaliation claim.
1. Direct Method
The standard for what constitutes an adverse employment action is more flexible
in a retaliation claim than in a discrimination claim. Burlington , 548 U.S. at 69; Lewis
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v. City of Chi. Police Dept., 590 F.3d 427, 437 (7th Cir. 2009). In the context of a
retaliation claim, adverse employment actions are not limited to actions that affect the
terms and conditions of employment. Burlington, 548 U.S. at 69. Instead, courts
evaluate retaliation claims using an objective standard. Id. Therefore retaliatory
conduct is actionable if the “challenged actions are ones that a reasonable employee
would find to be materially adverse such that the employee would be dissuaded from
engaging in the protected activity.” Burlington , 548 U.S. at 67; Henry v. Milwaukee
Cty., 539 F.3d 573, 586 (7th Cir. 2008). The language “materially adverse” separates
“significant from trivial harms” and clarifies that adverse employment actions do not
encompass “those petty slights or minor annoyances that often take place at work and
that all employees experience.” Burlington, 548 U.S. at 68.
Pubentz seems to contend that all allegations of workplace misconduct stretching
back to 2007 should be considered for the purposes of proving the adverse employment
action requirement of her retaliation claim. Pubentz interprets the inclusive adverse
employment action requirement under a Title VII retaliation claim too broadly. To
sustain a retaliation claim Pubentz must have engaged in some protected activity, prior
to an employers adverse actions taken in retaliation for exercising her right to engage
in protected activity. See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1122 (7th
Cir. 2009) (employer must have actual knowledge of the protected activity in order for
its decisions to be retaliatory).
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The evidence shows that Pubentz informed England that she was contemplating
filing an EEOC charge on October 24, 2008. The basis for Pubentz’s consideration of
an EEOC charge was her removal from her relief supervisor position on October 14,
2008, by Salazar. Pubentz did not indicate to England that Salazar had engaged in any
discriminatory conduct. The only issues raised were personal grievances. It cannot be
assumed that England is clairvoyant about Pubentz’s motivations so as to put her on
notice of Pubentz’s subjective feelings of discrimination. In the absence of any contact
with an EEO counselor, filing a formalized grievance, or disclosing a discriminatory
motive to her supervisor, Pubentz’s actions do not constitute an opposition to an
unlawful employment practice for the purposes of engaging in a protected activity for
a Title VII retaliation claim. See Tomavich, 457 F.3d at 663-664 (“Although filing an
official complaint with an employer may constitute statutorily protected activity under
Title VII, the complaint must indicate the discrimination occurred because of . . .
national origin or some other protected class.”). Likewise Pubentz does not elicit any
evidence that England deterred her from filing her EEOC charge, six months following
Pubentz and England’s meeting. Pubentz first made contact with an EEO counselor on
April 10, 2009, and told ASAC Marrone on April 22, 2009 about her intentions to file
an EEOC charge based on discrimination she was enduring because of her national
origin. Ultimately Pubentz submitted her formal EEOC charge on May, 8, 2009.
Therefore for the purposes of Pubentz’s first retaliation count, only incidents which
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occurred on or after April 22, 2009, when she provided notice to ASAC Marrone of her
feelings of enduring discrimination, can be used as support for her retaliation claim. Id.
During Pubentz’s April 22, 2009 meeting with ASAC Marrone she discussed her
workplace problems. While discussing these issues Pubentz told Marrone that she
intended to file an EEOC charge concerning Carlin’s characterization of her as being
a “Zionist Arab.” After Pubentz told Marrone her intentions, he refused to discuss her
other concerns and requested she leave his office.
Pubentz alleges that Marrone’s unwillingness to discuss her work related issues
and the subsequent expulsion from his office constitutes a sufficiently adverse
employment action from the purposes of a retaliation claim. As previously discussed,
Marrone dismissed Pubentz from his office because he felt that proceeding would be
inappropriate after Pubentz mentioned her intention to file an EEOC charge. Although
a materially adverse action under Title VII’s anti-retaliation provision encompasses
more activity than the adverse employment action required to establish a discrimination
claim, the Court does not find that Pubentz’s isolated encounter with Marrone
constitutes a materially adverse action. See Porter v. City of Chicago, 700 F.3d 944,
957 (7th Cir. 2012). Under the circumstances, Pubentz did not suffer any adverse
consequence from the abrupt end to the meeting. Pubentz only suffered a loss of
conversation with her supervisor about her workplace concerns and was not dissuaded
from filing her Title VII charge. The Court does not find that Marrone’s conduct would
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deter a reasonable employee from filing an EEOC charge. Ultimately Pubentz filed an
EEOC charge on May 8, 2009, after the meeting with ASAC Marrone. Pubentz’s
failure to provide evidence that she suffered a materially adverse employment action is
fatal to her retaliation claim under the direct method.
2. Indirect Method
Pubentz has not established that she suffered an adverse employment action after
the initiation of the EEOC action. Because both the direct and indirect methods for
proving a retaliation claim require proof of an adverse employment action, the Court
finds that a Title VII retaliation claim cannot be established through the indirect
method.
Moreover, assuming that Pubentz had established that she endured a materially
adverse employment action, Pubentz has not provided a similarly situated employee
who was treated more favorably than her, as required for proving a retaliation claim
under the indirect method. Pubentz has not demonstrated that she can sustain a
retaliation claim under the indirect method. The Defendants’s motion for summary
judgment is granted.
III. Continuing Retaliation (Count III)
Pubentz claims that she endured continuing retaliation after her move to San
Francisco, California. Pubentz alleges that the retaliation in the San Francisco FBI
Office stemmed from the filing of her first EEOC charge in Chicago. This retaliation
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prompted Pubentz to file a second EEOC charge in San Francisco on September 17,
2010. The record lacks any evidence pointing directly to explicit retaliation against
Pubentz, such as an admission of retaliation. See Koszola v. Bd. of Educ. of Chi., 385
F.3d 1104, 1109 (7th Cir. 2004); Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 593
(7th Cir. 2008). Additionally, Pubentz utilizes the indirect method framework in
advocating for her position that she has successfully met the requirements of a prima
facie retaliation case. Accordingly, the Court will evaluate whether Pubentz can prove
discrimination under the indirect method.
Pubentz contends that after her move to San Francisco, 1) England contacted
Reilly and called Pubentz “high maintenance” because she filed an EEOC charge in
Chicago and San Francisco Foreign Language Program Manager (“FLPM”) Jolanta
McGovern (“McGovern”) told Reilly that he would have his hands full with Pubentz;
2) Reilly denied her request to be promoted to a relief supervisor position on two
occasions; 3) Reilly denied Pubentz the opportunity to participate in multiple
certification and development courses; 4) she was removed from her work assignments
and Reilly placed her on a PIP after she contacted an EEO counselor in San Francisco;
and 5) unreasonable assignment deadlines were given to her in June 2010 and in
September 2010 Pubentz did not have any work to perform. Pubentz’s second
retaliation claim is distinct from the first Chicago retaliation claim because she alleges
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that the retaliation was carried out by Reilly in San Francisco. The parties dispute the
third and forth elements of the indirect method analysis-whether Pubentz suffered an
adverse employment action and whether Pubentz has provided sufficiently similarly
employees to render a meaningful comparison.
1. Adverse Employment Action
Pubentz contends that she suffered multiple adverse employment actions in San
Francisco as a result of filing her EEOC charge in Chicago and her second EEOC
charge in San Francisco. The Defendants argue that Pubentz has failed to establish she
suffered an adverse employment action because Pubentz’s allegations are common
workplace annoyances that do not rise to the level of an adverse employment action.
The Supreme Court has emphasized that “[a]n employee’s decision to report
discriminatory behavior cannot immunize that employee from those petty slights or
minor annoyances that often take place at work.” Burlington, 548 U.S. at 68. Title
VII’s anti-retaliation provision prohibits only those employer actions that are likely to
deter victims of discrimination from invoking the Act’s remedial mechanism. Id. The
Court agrees with the Defendants’ assertion that the majority of the conduct Pubentz
alleges are not severe enough to constitute an adverse employment action.
Pubentz alleges that England contacted her new supervisor in San Francisco,
Reilly, and told him that Pubentz was “high maintenance” and an unreliable employee.
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Pubentz also asserts that FLPM McGovern told Reilly that he was going to have his
hands full with her. Pubentz contends that England’s and FLPM McGovern’s negative
comments stemmed from Pubentz’s filing of her EEOC charge in Chicago. The record
does not support Pubentz’s contention. The record shows that Reilly admitted to
speaking with England, after Pubentz came to San Franciso, about issues exclusively
related to work and never concerning Pubentz and the filing of an EEOC charge.
Reilly acknowledges that he deems Pubentz as a “high maintenance” employee because
of the amount of time she demands of him in order to complete assignments and
function in the office. FLPM McGovern’s comment stating Reilly would have his
hands full is petty and the record reveals that the statement did not have anything to do
with Pubentz’s EEOC complaint, which Reilly did not know if McGovern was aware
of. The mundane label of high maintenance and a comment about Reilly having his
hands full fits comfortably into the classification of a petty slight and does not rise to
the level of an adverse action.
Pubentz also complains that the San Francisco supervisors did not recommend
her for a promotion in retaliation for her filing a Title VII claim. Pubentz cites
numerous instances when she either inquired about the possibility of a promotion or
applied for a promotion and it was not granted. None of the instances suggest that
Reilly purposefully discouraged Pubentz from submitting an application.
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Pubentz first asserts that when she initially arrived in San Francisco in August
2009, she asked Reilly if he would recommend her for a promotion. Reilly told her that
he did not know her well enough to offer the recommendation. Subsequently in
September 2010, Pubentz again sought out Reilly for a recommendation to act as a fill
in supervisor when Reilly was absent. Reilly informed Pubentz that she was welcomed
to submit an application but that she should not expect his endorsement. Pubentz
applied for the position and was not hired into the supervisory position. Reilly alleges
that he did not recommend Pubentz for the position because he determined that she had
not exercised sound judgment in a leadership role. Pubentz asserts that Reilly’s lack of
recommendation stemmed from his observation of her personnel file in Chicago and his
knowledge of Pubentz’s Title VII complaint. Viewing the evidence in the light most
favorable to Pubentz, as we must, the Court finds that Reilly’s denial of a
recommendation concerning a position Pubentz had applied for, is substantial enough
to dissuade a reasonable person from utilizing Title VII and is therefore an adverse
employment action.
Pubentz’s denial of training opportunities is not severe enough to constitute an
adverse employment action. Reilly notes that FBI Language Services Policy in San
Francisco prohibits linguists from attending training that does not directly relate to a
linguist’s duties, because of under staffing. Pubentz applied to participate in eight
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different training programs, including an Instructor Development Course and a
Computer Forensic Training Program. Reilly denied Pubentz’s request to partake in the
training because they were not related to her position as a Language Analyst. The lack
of relation to the skills she needed as a linguist and the large amount of backlogged
work that Hebrew linguists experienced led to her denial of attending training activities.
Because the training was not related to the performance of her position, Pubentz cannot
establish that she suffered an adverse employment action. The conduct Pubentz alleges
would not dissuade a reasonable person from filing an EEOC charge. See id.
Pubentz alleges that within two months of contacting an EEO counselor in San
Francisco, Reilly placed her on a PIP. After beginning on a complex translation
assignment Pubentz was abruptly removed from the assignment. Subsequently on June
7, 2010, Reilly informed Pubentz that he was placing her on a PIP for a term of 90 days.
Ordinarily, “[a] transfer involving no reduction in pay and no more than a minor change
in working conditions” does not rise to the level of a materially adverse employment
action. Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). In this
case, the PIP work program curtailed Pubentz’s freedom to personally manage her work
assignments and involved a heightened level of scrutiny on her work by her supervisors.
This reduction in work place independence is substantial enough to dissuade a
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reasonable person from utilizing Title VII and is therefore an adverse employment
action.
Finally, Pubentz elicits two incidents where she alleges that her work
assignments were too onerous in one instance and not substantial enough in the next.
Pubentz claims that in June 2010 she was given unreasonable assignment deadlines.
Subsequently Pubentz claims that in September 2010 she did not have any work to
perform. Pubentz’s reliance on both workload incidents to fortify her retaliation claim
is misplaced. The ebbs and flows of the amount of work an employee is responsible for
is a common annoyance repeated thousands of times over in work places throughout the
country. Concerning Pubentz’s June 2010 work overload, the record indicates that the
FBI had a tremendous backlog of Hebrew related translation work not related to the
performance of Pubentz. The June 2010 assignment deadlines were put in place based
on the operational needs of the department. Furthermore the record shows that Reilly
commonly extended deadlines if needed. Similarly the September 2010 lull in work
was a result of the San Francisco FBI Offices’s operational concerns and Pubentz
returning to normal duties after coming off her PIP. The varying amount of work that
Pubentz experienced would not deter a potential victim of discrimination from utilizing
Title VII’s remedial mechanisms and is therefore not an adverse employment action.
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The Court finds that the only adverse employment actions Pubentz suffered was
Reilly not recommending her for a position she had applied for and her removal from
her assignment and placement on the PIP in June 2010.
2. Similarly Situated
Pubentz argues that she has provided a similarly situated employee which offers
a sufficient comparison to prove her retaliation claim.6 To sustain her claim, Pubentz
is required to point to similarly situated employees who did not participate in a Title VII
action who were treated more favorably. Kampmier v. Emeritus Corp., 472 F.3d 930,
939 (7th Cir. 2007). The only reference to an employee in the San Francisco FBI Office
is in Reilly’s deposition when he briefly mentions a female employee that he
recommended for a supervisory position. The record does not show what position the
employee held, what her qualifications for the position where, and if Reilly’s
recommendation ultimately resulted in her promotion, or if it was just a positive factor
in an already qualified application. In the absence of sufficient information concerning
the San Francisco employee, the Court looks to the only other employees provided by
Pubentz.
6
Pubentz submits the findings of an EEOC Administrative Law Judge (“ALJ”) concerning
a San Francisco linguist who was found to have been discriminated against based on her disability.
Pubentz has not asserted the relevance of the findings. The Court can only guess that the inclusion
of the material is for the purpose of establishing a similarly situated employee or a pattern of conduct
performed by the supervisors in San Francisco. However the claims determined by the ALJ are
distinct from Pubentz’s claims and does not establish that Pubentz was treated less favorably. The
Court does not find the evidence relevant to Pubentz’s claims.
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Pubentz gives the names and position titles of five employees who were allegedly
treated more favorably than Pubentz. As previously discussed, the record only includes
sufficient information concerning three FBI linguists to provide an adequate
comparison.
Pubentz claims she was retailated against after she moved to San
Francisco by Reilly. The three linguists that Pubentz provides are all located in the
Chicago FBI Office. Pubentz’s reliance on the three FBI linguists in Chicago to support
her prima facie case is misplaced. Further, nothing in the record suggests that Reilly
was involved in any decision from which Pubentz seeks to draw a comparison. The
evidence also indicates that Special Agent David Miller (“Miller”) and Supervisory
Special Agent (“SSA”) Enrique Alvarez (“Alvarez”), who were involved in the complex
national security translation assignment, and pressed for Pubentz’s removal from the
assignment, did not know about Pubentz’s Chicago EEOC charge and further had no
power to make employment decisions for linguists in Chicago.
Under Title VII, a “decisionmaker is the person responsible for the contested
decision.” Rogers, 320 F.3d at 754. The record does not show that Reilly had anything
to do with the employment decisions made by the Chicago FBI Office concerning the
three provided FBI linguists. Without Reilly’s participation in the Chicago FBI hiring
and promotional decisions Pubentz cannot prove that similar employees were treated
more favorably by the same decision maker. Coleman, 667 F.3d at 848. In sum,
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Pubentz has not met her burden of showing that other similarly situated individuals
received more favorable treatment in San Francisco. Pubentz has not established a
prima facie case for retaliation.
3. Reason for Actions
Even if we were to assume that Pubentz had sufficiently established a prima facie
retaliation claim, for Reilly’s denial of a recommendation and her placement on the PIP,
Pubentz has failed to provide evidence indicating that the reasons provided by the
Defendants were merely pretext for their retaliatory motive. The Defendants have
provided ample evidence supporting the reason why Reilly did not recommend Pubentz
for the supervisory position in September 2010 and the reason why Pubentz was
removed from her work assignment and placed her on the PIP.
a. Reilly’s September 2010 Denial of Recommendation
The evidence indicates that Reilly’s decision to forgo recommending Pubentz for
a supervisory position was based on his interactions with her over the course of her time
in San Francisco. Reilly provides numerous examples of Pubentz’s conduct which he
deemed as unsuitable of an individual seeking a leadership position. Reilly mentions
1) Pubentz not arriving for her first scheduled day, causing her to miss prearranged
appointments; 2) Pubentz acting in a confrontational manner when she locked herself
out of her office and could not reach Reilly to be let back in to her office; 3) Pubentz’s
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repeated attempts to apply for training that was not related to her position as a Language
Analyst; and 4) Pubentz’s repeated attempts to move her lunch period to the end of the
day, against FBI policy and Reilly’s warnings. Pubentz has not submitted any evidence
indicating that Reilly’s denial of a recommendation for Pubentz’s promotion was merely
a pretext for retaliation.
b. Placement of the PIP
In late 2009 Pubentz was assigned to translate recordings of wire intercepts in a
complex national security investigation. Pubentz was tasked with providing SA Miller
with the identity of the individuals and the subject matter of the recordings. In early
2010 SA Miller became concerned with the low amount of translated materials Pubentz
had submitted to him. SA Miller spoke with his supervisor SSA Alvarez, about the lack
of progress and SSA Alvarez instructed SA Miller to determine the extent of the work
Pubentz had completed. After looking into the reason for Pubentz’s low productivity,
it was discovered that Pubentz had not reviewed approximately 614 recordings and of
the approximately 888 recordings she had reviewed she had not transcribed a single
recording. SA Miller met with Pubentz to discuss the lack of progress on the
assignment. During the meeting Pubentz became argumentative and asserted that she
would provide the materials that she deemed pertinent. Pubentz’s job was to translate
the materials that were assigned to her. It was not Pubentz’s responsibility to
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unilaterally make relevance determinations on assignments which she did not know the
scope of the investigation. SA Miller relayed the happenings of the meeting to SSA
Alvarez, who subsequently met with FMLA McGovern. Based on Pubentz’s lack of
progress on the assignment the entire case was reassigned.
On June 7, 2010, Reilly informed Pubentz that she was being placed on PIP for
90 days to assist her productivity at work. The Defendants have produced evidence
indicating that Pubentz was placed on the PIP because of her failure to translate the
materials that had been assigned to her. Pubentz has not submitted any evidence
indicating that her placement on the PIP was merely a pretext for retaliation. The Court
finds that Pubentz has not provided sufficient evidence to establish a prima facie case
for retaliation or shown that the Defendants’s actions were merely a pretext for
retaliation. Accordingly, the Defendants’ motion for summary judgment is granted.
IV. First Amendment Retaliation (Count IV)
Pubentz alleges that the Defendants retaliated against her for expressing her First
Amendment rights after her interaction with a guest Palestinian speaker at a 2009 FBI
presentation. The First Amendment of the United States Constitution provides that
“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. Amend.
I. However, when a citizen is employed by the government, the citizen must accept
certain limitations of their freedoms. Waters v. Churchill, 511 U.S. 661, 671 (1994);
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Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563
(1968). To succeed on a First Amendment retaliation claim, a plaintiff must show that:
“1) h[er] speech was constitutionally protected; 2) [s]he has suffered a deprivation
likely to deter free speech; and 3) h[er] speech was at least a motivating factor in the
employer’s actions.” Kildwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
Defendants contest that Pubentz’s speech was constitutionally protected because it was
made during the course of an FBI presentation. “[T] he determination of whether
speech is constitutionally protected is a question of law for the court.” Houskins v.
Sheahan, 549 F.3d 480, 489 (7th Cir. 2008). “When public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications from
employer discipline.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 671 (7th
Cir. 2009).
To determine the constitutional protections accorded to public employees speech
the Supreme Court has developed a two-step inquiry. Pickering, 391 U.S. at 568. The
first step requires us to determine whether the employee spoke as a citizen on a matter
of public concern. Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2493 (2011).
If an employee does not address a matter of public concern, “a federal court is not the
appropriate forum in which to review the wisdom of a personnel decision taken by a
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public agency allegedly in reaction to the employee’s behavior.” Connick v. Myers, 461
U.S. 138, 147 (1983). Even if the employee does speak as a citizen on a matter of
public concern, the employee’s speech is not automatically privileged. Borough, 131
S.Ct. at 2493. Courts must “balance the First Amendment interests of the employee
against the interests of the [government], as an employer, in promoting the efficiency
of the public service it performs through its employees.” Id. (quoting Pickering, 391
U.S. at 568).
Pubentz argues that the verbal exchange between Pubentz and the presenter at the
FBI presentation was relegated to issues that were exclusively of public concern and
therefore covered by the First Amendment. Speech that addresses a matter of public
concern is any speech “fairly considered as relating to any matter of political, social, or
other concern to the community.” Connick, 461 U.S. at 146. “Whether an employee’s
speech addresses a matter of public concern must be determined by the content, form,
and context of a given statement, as revealed by the whole record.” Id. at 147-48.
Pubentz asserts that the presentation, concerning the evolution of the Gaza Strip
territorial dispute involves an issue of public concern which can provoke spirited
debate. Even though the issues discussed at the presentation can provoke emotional
discourse, the forum for the discussion and the connection with Pubentz’s duties were
nonetheless related to her work. The entire national security section of the Chicago FBI
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Office was invited to attend the presentation. Pubentz specialized in interpreting
Hebrew and additionally is fluent in Arabic, attended the presentation. The event was
designed to provide a Palestinian perspective to the Gaza Strip conflict.
The
presentation was held at a training space in the Chicago FBI Office and was held for the
professional enrichment of the employees in attendance. During the course of the
presentation Pubentz engaged in a heated discussion with the presenter. Pubentz was
observed making known her belief that the speakers comments were “pure propaganda”
and “not based on fact.” The Court determines that the setting of the presentation and
the nature of the matter discussed suggest that the issues were not subject to First
Amendment protection.
Even if we were persuaded that Pubentz’s speech during the presentation was a
matter of public concern, the FBI has an interest in regulating the way presentations are
conducted. The imposition of restraints in employment are justified by the consensual
nature of the employment relationship and by the unique nature of the government’s
interest. Bourough, 131 S. Ct. at 2494. The Seventh Circuit in Fairley v. Andrews, 578
F.3d 518 (7th Cir. 2009), determined that the Constitution does not restrict an
employers right to manage the workplace and limit, as well as require, speech. The
Fairley Court analogized to a situation where an employer had instructed its employees
to be silent during work hours on issues relating to their positions. Id. at 523. The Court
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found that the First Amendment would not prevent the employer from enforcing its
requirement of silence. The Court reasoned that it is clear that the First Amendment
does not regulate the manner in which an employer requires an employee to perform
their job. See Garcetti v. Ceballos, 547 U.S. 410, 417-20 (2006).
In this case, the guest speaker was surprised by Pubentz’s unwillingness to
consider a different perspective on the Gaza Strip conflict. Pubentz argues that
England’s comment stating that Pubentz has a First Amendment right to express herself
is dispositive of the issue. However, England conditions her statement on whether
Pubentz is representing herself or if she is representing the FBI.
Pubentz’s
confrontation had the potential to give the speaker a negative impression of the FBI as
a whole, as opposed to the perspective of one boisterous linguist. Prior to the event
England warned the attendees to maintain composure and consider the forum prior to
engaging in confrontation with the presenter. Although Pubentz did not see the email,
England’s proactive warning underscores the precautions taken to mitigate any negative
perception drawn on the FBI as a whole. Accordingly, the Court finds that Pubentz’s
verbal confrontation with the presenter at the FBI presentation was not a matter of
public concern and the FBI had a vested interest in limiting the actions of its employees.
Therefore Pubentz’s speech is not protected by the First Amendment. The Defendants’s
motion for summary judgment is granted.
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CONCLUSION
For the aforementioned reasons, Defendants’s motion for summary judgment is
granted.
Charles P. Kocoras
United States District Judge
Dated:
March 5, 2013
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