Vincenza Presti v. Chad Wolf ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 15, 2020*
Decided November 19, 2020
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1397
VINCENZA PRESTI, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 18 C 1710
CHAD F. WOLF, Acting Secretary of the Virginia M. Kendall,
U.S. Department of Homeland Security, Judge.
Defendant-Appellee.
ORDER
Vincenza Presti, an immigration officer at the United States Citizenship and
Immigration Services, believes that she was demoted and given negative feedback on
her job performance based on her Italian descent and in retaliation for complaints she
had filed with the Equal Employment Opportunity Commission. She sued the Secretary
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-1397 Page 2
of Homeland Security under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
2. The district court entered summary judgment for the defendant, concluding that no
reasonable jury could find that USCIS’s employment decisions were discriminatory or
retaliatory. We affirm.
Presti joined USCIS in 2002 as an immigration officer. Over the next eleven years,
she filed two complaints with the EEOC about discrimination on the job. In her first
complaint, in 2008, she stated that she had been passed over for a role because of her
Italian heritage. The EEOC made a finding of discrimination, and USCIS offered her the
job she sought. The second, in 2013, concerned feedback in her annual review. That
complaint was settled through mediation.
In 2015, Presti’s supervisor gave her some more negative feedback in an
otherwise positive annual performance review. He wrote that Presti came across as
confrontational and demanding and needed to work on her communication, but he also
favorably graded her overall score as 4.4 out of a possible 5 points, placing her in the
category of “exceeding expectations.” Presti objected to the comments about her
communication style, which she defended as “open,” “direct,” and rooted in her Italian
background and culture. Management edited the written feedback so that she and the
supervisor approved of it.
Around this time, Presti applied for a promotion to Level III Immigration Officer.
Applicants were scored based on their interview performance and references, and the
two applicants with the highest scores were promoted. Presti’s total score was the fifth
highest of the seven candidates.
Presti then filed a new EEOC complaint stating that she received negative
feedback and was passed over for promotion based on her Italian descent. The EEOC
found the charges unsupported.
In March 2018, Presti applied to be a Supervisory Immigration Services Officer.
At the time, she already was serving as a supervisor in a temporary capacity. She
interviewed for the position, received the highest score in the selection process, and was
offered the job.
In the meantime, Presti sued the Secretary of Homeland Security under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging that the two episodes from
No. 20-1397 Page 3
2015—receiving negative feedback and being passed over for promotion—reflected
discrimination based on her national origin and retaliation for her earlier EEOC activity.
After she assumed the supervisory position, Presti’s performance declined. An
early, first review garnered positive feedback, but complaints about her work followed.
Presti’s supervisor noted that Presti micromanaged her team’s work product and
struggled to build relationships, and Presti’s coworkers complained about her treatment
of the team. At Presti’s mid-year review, her supervisor noted that her communication
style was overly direct and unpleasant, that she continued to micromanage her team’s
work product, and that her lack of familiarity with the computer systems and relevant
law impeded her ability to assist her team and adjudicate cases. Even after this review,
Presti’s supervisor noted no change in her performance.
In September, USCIS demoted Presti for poor performance. In a demotion letter,
her supervisor explained that Presti had failed to improve in her performance or to
meet the job’s expectations, despite receiving mentorship and ongoing feedback.
Presti then amended her complaint to allege that the agency had demoted her in
retaliation for her earlier EEOC filings.
During the discovery that ensued, Presti twice filed motions to compel the
agency to produce documents she regarded as critical to her 2015 non-promotion claim.
She first sought resumes and demographical data for positions to which she had not
applied between 2016 and 2018. After hearing argument from Presti on the motion, the
magistrate judge presiding over discovery denied the request as irrelevant because
Presti was not challenging those selection decisions. Presti later sought the resumes of
candidates whom USCIS had selected for promotion between 2014 and 2016, the same
period during which she was denied a promotion. The magistrate judge held another
hearing on the request before granting it in part, ordering USCIS to turn over the
resumes of candidates for any position to which Presti had applied.
The district court ultimately entered summary judgment for USCIS. Based on the
evidence presented, the court explained, no reasonable jury could conclude that Presti
suffered an adverse employment action in 2015 upon receiving negative feedback—
feedback that later was changed to her liking—or that any discriminatory or retaliatory
motive influenced her non-promotion in 2015 or her demotion in 2018.
No. 20-1397 Page 4
On appeal, Presti first challenges the district court’s denials of her motions to
compel. In her view, she needed the requested resumes to identify possible comparators
to prove discrimination regarding the 2015 non-promotion.
The district court acted within its discretion to deny both motions. When
deciding motions to compel the production of personnel files, courts have “broad
discretion to limit a request … in order to prevent the dissemination of personal or
confidential information about employees.” Brunker v. Schwan's Home Serv., Inc.,
583 F.3d 1004, 1010 (7th Cir. 2009). This discretion extends to limiting discovery over
similarly situated comparators in discrimination cases. See id.; Balderston v. Fairbanks
Morse Engine, 328 F.3d 309, 320 (7th Cir. 2003). Here, the district court properly found
irrelevant Presti’s first discovery request regarding selection decisions for jobs for which
she had never applied. See Balderston, 328 F.3d at 320. Further, the court appropriately
denied in part her request for resumes of successful candidates for promotion from 2014
to 2016 because she sought resumes of applicants for jobs different from the one to
which she had applied, and there is no evidence that selection decisions in those cases
were made by the same decision-makers or using the same standards. See Brunker,
583 F.3d at 1010.
Presti next challenges the entry of summary judgment on her claims arising from
the negative feedback she received on her 2015 annual review. We understand her to
argue that the district court did not view the record in a light favorable to her when it
concluded that the negative feedback—which criticized her communication style and
postdated her EEOC complaints—was not discriminatory or retaliatory.
This challenge is unpersuasive. To stave off summary judgment, Presti had to
produce evidence to suggest that she suffered an adverse employment action because of
her national origin or in retaliation for her earlier, protected EEOC activity.
See McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 367, 370–71 (7th Cir. 2019).
But, as the district court concluded, no reasonable juror could conclude that the
negative feedback amounted to an adverse action (i.e., one that resulted in a significant
change in an employment condition, such as income or career prospects, see Boss
v. Castro, 816 F.3d 910, 917 (7th Cir. 2016)). She received an overall score that “exceeded
expectations,” the negative feedback was revised to meet her approval, and she offers
no evidence that the feedback affected her pay or job trajectory. And even if negative
criticism on an otherwise strong evaluation could constitute an adverse employment
action, Presti offered no evidence that USCIS’s proffered rationale for the feedback—
No. 20-1397 Page 5
that her communication style was impeding her ability to work with others and
perform her job effectively—was pretextual. See id. at 916–18.
Presti relatedly challenges the district court’s ruling that she lacked evidence
from which a jury could infer that she was demoted in 2018 in retaliation for her EEOC
complaints. She maintains that the court overlooked material evidence, namely the
positive feedback accompanying her early reviews in that job. But this argument misses
the court’s broader point that her evidence was insufficient to persuade a reasonable
juror that protected activity was the but-for cause of her demotion. See Abrego v. Wilkie,
907 F.3d 1004, 1014 (7th Cir. 2018). The undisputed record shows that USCIS demoted
her after several months of recorded poor performance, including struggles with
managing her team, building relationships, and accessing the systems necessary to do
the job.
We have considered Presti’s other arguments, and none has merit.
AFFIRMED