Menezes v. United States Department of Transportation
Judge Richard G. Stearns: MEMORANDUM AND ORDER entered granting 78 Motion for Summary Judgment (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-11869-RGS
U.S. DEPARTMENT OF TRANSPORTATION, and
ANTHONY R. FOXX, Sec’y, U.S. Dep’t of Transp.
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
August 31, 2017
Harriet Menezes brought this lawsuit against her former employer, the
United States Department of Transportation (DOT), claiming, inter alia, a
failure to accommodate her disabilities; retaliation and discriminatory
treatment based on her disability, religious beliefs, race, gender, and age; and
a creation of a hostile work environment. After a parade of dispositive
motions and amended complaints, all that remains is a Title VII-retaliation
claim based on Menezes’ filings with the Equal Employment Opportunity
Commission (EEOC). The claim is targeted at several of Menezes’ Federal
Aviation Agency (FAA) supervisors. 1
Discovery in this case ended on
The court has previously admonished Ms. Menezes that her case is
now limited to the retaliation claim. Notwithstanding the admonition, she
February 28, 2017. On May 12, 2017, the government moved for summary
judgment. Menezes filed her Opposition on June 16, 2017.
Menezes recites five EEOC complaints that she filed between
December 12, 2010, and March 22, 2013 (prior to her termination), that she
alleges incited her managers to retaliate against her.
The genesis and
chronology of the relevant EEOC complaints are as follows.
Menezes initiated an EEOC proceeding on December 6, 2010,
complaining that an FAA manager, Scott Brackett, had discriminated against
her. On January 10, 2011, Menezes filed a formal EEOC complaint detailing
a number of alleged acts of discrimination. See Gov’t Ex. 1 at 2.
On January 13, 2012, Carlos Pestana, another of Menezes’ supervisors,
issued her a Letter of Reprimand for “Resisting Management Authority,”
after Menezes refused Pestana’s order that she move to another workspace.
Menezes told him that he was engaged in “military style management again.”
See Gov’t Ex. 2 at 1-2. The reprimand admonished her for “Inappropriate
Conduct,” based on an email she had sent to a co-worker complaining about
her managers’ work performance and her job responsibilities. On January
has filed a plethora of documents with her Opposition, few of which have any
bearing on her retaliation claim.
20, 2012, Menezes filed a second formal EEOC Complaint (EEOC No. 5202012-00432), regarding Pestana’s Letter of Reprimand, and seven claims of
discrimination allegedly based on her Asian and White race, her brown skin
color, her sex, her English birth, her age (51), her physical disabilities
(cancer, sleep disorder, allergies), and a mental disability (anxiety), all
occurring in the Fall of 2011, allegedly in reprisal for her first EEOC
On May 16, 2012, Pestana issued a Letter of Decision to Menezes
imposing a three-day suspension (May 21-24, 2012) for Inappropriate
Conduct after Menezes sent an email to Pestana and co-workers complaining
that she was “feeling the same battered wife syndrome as your wife
[Pestana’s] mentioned in her divorce filing,” and that Pestana was “an
abusive man.” Gov’t Ex. 3 at 2. On June 3, 2012, the FAA assigned Menezes
to a new supervisor, Angela Olson. On June 19, 2012, Menezes amended her
pending EEOC Complaint to allege that the three-day suspension was the
result of discrimination.
On August 23, 2012, Olson issued Menezes a “Notice of Proposed
Suspension for Fourteen Days for Inappropriate Conduct.” On September
24, 2012, she sent a Letter of Decision to Menezes imposing the suspension.
This new charge of inappropriate conduct was based on an email Menezes
sent to two FAA managers, Colleen D’Alessandro and Diane Romanosky,
accusing Pestana of falsifying a travel voucher. See Gov’t Ex. 5. Olson noted
that Menezes’ recent 3-day suspension and prior reprimand “have done little
to deter this latest instance of inappropriate conduct,” and that her lack of
remorse and failure to acknowledge any responsibility for her actions
warranted progressive discipline. Id. at 2, 5. Menezes contacted an EEO
counselor on October 12, 2012, to complain about the suspension, and filed
a third formal EEOC complaint on January 28, 2013. See Gov’t Ex. 6.
On February 12, 2013, Olson issued Menezes a “Notice of Proposed
Removal for Inappropriate Conduct, Failure or Delay to Follow Instructions,
and Defying Managerial Authority” based on Menezes’ actions on December
3 and 4, 2012. Olson cited an email that Menezes had sent to her and
fourteen other FAA employees stating that Olson had condoned “malicious
gossip and speculations that management should not make to subordinates.
. .” and had failed to investigate “false accusations made by an employee on
alleged workplace violence.” With regard to Menezes’ “Failure or Delay to
Follow Instructions,” Olson cited: (1) Menezes’ failure to respond to five
requests to correct a discrepancy in her time and attendance report; (2)
failing to prioritize work assignments as directed; (3) failing to comply with
four instructions not to place a telephone call while Olson was questioning
her about a work assignment; (4) failing to give Olson the telephone before
terminating the call so that Olson could speak to the other party; (5) failing
to answer an incoming telephone call after three directives to do so; and (6)
failing to notify Olson when she arrived at work at other than the scheduled
start time. Olson also cited the following instances of Menezes “Defying
Managerial Authority”: (1) her refusal to tell Olson when she had arrived for
work and stating that the question was an abuse of Olson’s authority; (2)
refusing to meet with Olson to discuss the appropriate use of emails and
other communications and, again telling Olson that her request was an abuse
of authority; (3) her refusal to apprise Olson of the current status of Menezes’
work and again iterating the accusation of abuse of authority; and (4)
Menezes’ refusal to perform a particular work assignment and again telling
Olson that the assignment was an abuse of her authority. See Gov’t Ex. 7.
Olson provided Menezes with 16 hours of excused absence to review the
materials attached to the “proposed removal” memorandum and to file a
reply. After receiving two extensions to prepare a response, on March 20,
2013, Menezes filed her rebuttal.
After six years of government service, Menezes was terminated from
her position as an Administrative Officer at the FAA effective May 3, 2013.
See Gov’t Ex. 8. Menezes filed her next EEOC Complaint on July 3, 2013,
challenging her dismissal.
Ultimately, Menezes withdrew her EEOC
Complaint of January 28, 2013, and on May 19, 2015, filed a 60-page
Complaint initiating this action.
Federal Rule of Civil Procedure 56(c) “mandates the entry of summary
judgment . . . upon motion against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
For purposes of summary judgment we are required to draw
every reasonable inference in favor of the nonmoving party.
However, at this stage we need not credit inferences that “rely on
tenuous insinuation.” Nat’l Amusements, Inc. v. Town of
Dedham, 43 F.3d 731, 743 (1st Cir. 1995) (internal quotations
omitted). Moreover, the nonmovant still has “the burden of
producing specific facts sufficient to deflect . . . summary
judgment. . . . ” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19
(1st Cir. 2003).
Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 858 (1st Cir. 2008). A trial
judge acts well within his authority on a summary judgment motion in
assessing the reasonableness of the inferences that might be drawn from the
circumstantial evidence. Ricci v. Alternative Energy, Inc., 211 F.3d 157, 161162 (1st Cir. 2000). “[A] mere challenge to the credibility of a movant’s
witnesses without any supporting evidence does not raise a trialworthy issue
of fact.” Moreau v. Local Union No. 247, 851 F.2d 516, 519 (1st Cir. 1998);
see also Favorito v. Pannell, 27 F.3d 716, 721 (1st Cir. 1994); LaFrenier v.
Kinirey, 550 F.3d 166, 167-168 (1st Cir. 2008). “[O]n summary judgment,
absent specific facts discrediting testimony from a witness associated with
the movant, and absent a direct conflict in the testimony, the opponent
(although entitled to have [his or her evidence taken as true), is not entitled
to have the moving party’s evidence positively disbelieved.” Grubb v. KMS
Patriots, L.P., 88 F.3d 1, 4 (1st Cir. 1996).
Title VII makes it unlawful “for employers to retaliate against persons
who complain about unlawfully discriminatory employment practices.”
Ahern v. Shinseki, 629 F.3d 49, 55 (1st Cir. 2010) (quoting Noviello v. City
of Boston, 398 F.3d 76, 88 (1st Cir. 2005)). In order to prove retaliation
under Title VII, a plaintiff must show “that the desire to retaliate was the butfor cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 133 S.Ct. 2517, 2528 (2013); see also Ponte v. Steelcase Inc., 741
F.3d 310, 321 (1st Cir. 2014). To present a prima facie case of retaliation, a
plaintiff is required to show that “she engaged in protected conduct, that she
suffered an adverse employment action, and that a causal nexus exists
between the protected activity and the adverse action.” Id. If a plaintiff has
established a prime facie showing of retaliation, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the
employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). If the defendant succeeds, “the burden shifts back to the plaintiff to
show that the proffered legitimate reason is in fact a pretext and that the job
action was the result of discriminatory animus.” Collazo v. Bristol-Myers
Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). Evidence of retaliation
under Title VII can be direct or circumstantial. See DeCaire v. Mukasey, 530
F.3d 1 (1st Cir. 2008).
It is undisputed that Menezes engaged in protected activity in filing her
EEOC complaints, and that her termination by Olson constituted an adverse
employment action. 2 It is also undisputed that Olson knew of Menezes’
On the remaining issue of causation, the court will assume that
Menezes has met the “relatively light burden of establishing a prima facie
case of retaliation.” Mariani-Colón v. Dep’t of Homeland Sec., 511 F.3d 216,
224 (1st Cir. 2007); see also Sánchez-Rodríguez v. AT & T Mobility P.R., Inc.,
673 F.3d 1, 15 (1st Cir. 2012) (holding that plaintiff had established a prima
facie case of retaliation where approximately three months had transpired
At the times Menezes made her EEOC filings, her supervisors were
successively, Pestana and Olson (who had taken over supervision of Menezes
on June 3, 2012, after she sent him the inflammatory email).
between the protected conduct and the material adverse action). Menezes
was notified on February 12, 2013, that she would be terminated (“no earlier
than 30 calendar days from the receipt of [the] notice.”). Although her initial
EEOC complaints were filed in 2010, she had filed her most recent EEOC
complaint regarding her 14-day suspension on January 28, 2013.
Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir. 2014)
(treating “temporal proximity” between adverse employment action and
protected conduct as just one factor, “reinforced by other evidence,” that
supported a jury verdict of retaliation) (quoting Trainor v. HEI Hospitality,
LLC, 699 F.3d 19, 28 (1st Cir. 2012)).
The burden therefore shifts to the FAA to “articulate a legitimate,
nondiscriminatory reason” for Menezes’ termination. The FAA points to
abundant instances of Menezes’ misconduct as an employee, her
unrepentant acts of insubordination, her libelous statements about her
supervisors, her attempts to incite co-workers against FAA management, her
refusal to follow workplace directives, her disruptive behavior,3 and her
defiance of work rules. Gov’t Ex. 4 at 3-6.
Nicole Durbois-Romeo, who worked in space near Menezes and was
uninvolved in the FAA’s decision to terminate her, stated that Menezes was
often loud, disruptive, and extremely insubordinate to management.” Id. at
8. After learning of Durbois-Romeo’s complaint, Menezes accused her and
In response, Menezes conends that Olson fabricated claims in order to
buttress the decision to terminate her and that the complaints about her were
simply a pretext to disguise Olson’s (and Pestana’s) discrimination.
However, “[i]t is not enough for a plaintiff merely to impugn the veracity of
the employer's justification; [she] must ‘elucidate specific facts which would
enable a jury to find that the reason given is not only a sham, but a sham
intended to cover up the employer’s real motive:  discrimination.’”
Melendez v. Autogermana, Inc., 622 F.3d 46, 52 (1st Cir. 2010) (quoting
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)).
When assessing a claim of pretext in an employment
discrimination case, a court’s focus is necessarily on the
motivations and perceptions of the decisionmaker. Mesnick [v.
Gen. Elec. Co.], 950 F.2d ,  824 [(1st Cir. 1991)]. Thus, as
long as [the manager] believed that [the employee’s]
performance was not up to snuff – and [the employee] has
presented no evidence suggesting that management thought
otherwise – it is not our province to second-guess a decision to
fire [her] as a poor performer. That is true regardless of whether,
to an objective observer, the decision would seem wise or foolish,
correct or incorrect, sound or arbitrary. See VelázquezFernández v. NCE Food, Inc., 476 F.3d [6,] 12 [(1st Cir. 2007)];
see also Mesnick, 950 F.2d at 825 (explaining that “courts may
not sit as super personnel departments, assessing the merits . . .
of employers’ nondiscriminatory business decisions”).
two other co-workers, Maureen Campbell and Joseph White, of being “white
supremacists.” Id. at 7-8.
Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d
9, 16-17 (1st Cir. 2007).
Retaliation is a powerful weapon in the arsenal of discrimination law.
What a court must guard against is the conversion of a legitimate sword into
an illegitimate shield insulating a disruptive and insubordinate employee
from workplace discipline. A government agency cannot be prevented by
claims of retaliation from carrying out its legitimate functions, which include
maintaining workplace decorum and protecting other employees (and
supervisors) from an employee’s abusive conduct.
See Abril-Rivera v.
Johnson, 806 F.3d 599, 610-611 (1st Cir. 2015). “Even in retaliation cases
‘where elusive concepts such as motive or intent are at issue, summary
judgment is appropriate if the non-moving party rests merely upon
speculation.’” Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007) (quoting
Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003). If ever a
government employer was entitled to summary judgment on a retaliation
claim, this is that case.
For the foregoing reasons, defendant’s motion for summary judgment
is ALLOWED. The Clerk will enter judgment for defendants and close the
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
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