Laura Ramos v. Merrick Garland (PUBLIC OPINION) ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2023 Decided July 25, 2023
Reissued August 10, 2023
No. 21-5097
LAURA J. RAMOS,
APPELLANT
v.
MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE UNITED STATES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00328)
David E. Kouba argued the cause for appellant. With him
on the briefs was Maura McGonigle.
Sean M. Tepe, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were R. Craig Lawrence
and Jane M. Lyons, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, WILKINS and PAN,
Circuit Judges.
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Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Laura J. Ramos filed this Title
VII action against her employer, the Federal Bureau of
Investigation (“FBI” or the “Bureau”) for allegedly taking
retaliatory actions against her after she reported discrimination
to the Bureau’s Equal Employment Office (“EEO”). The
District Court granted summary judgment in favor of the FBI
on several of Ramos’s allegations, finding that the FBI’s
actions were not materially adverse in violation of Title VII’s
antiretaliation provision. The District Court also denied
Ramos’s motion for leave to amend her complaint to add new
allegations of retaliation. Ramos appealed.
I.
We review the grant of summary judgment against Ramos
de novo. Czekalski v. Peters, 475 F.3d 360, 362–63 (D.C. Cir.
2007). In the course of our review, we construe the facts in
the light most favorable to Ramos and give her the benefit of
all reasonable inferences. Id. at 363. With that framework,
we summarize the relevant facts as follows.
A.
Laura J. Ramos, a Hispanic woman, began her
employment with the Federal Bureau of Investigation in 2003.
In January 2010, Ramos was assigned to the Supervisory
Special Agent (“SSA”) position in Unit 1D of the FBI’s
Counterintelligence Division. In April 2011, Ramos began
noticing that her direct supervisor treated Ramos differently
from other employees, and in May 2011, she began the process
of informing the EEO about this issue. She alleges three
different instances of mistreatment in retaliation for this
conduct.
3
1.
First, Ramos alleges she was denied an opportunity to
transfer to a new unit due to her protected activity. In May
2011, Ramos informally contacted the EEO to divulge what
she perceived to be discrimination from her direct supervisor,
on the basis of her race. Through counseling, the EEO
informed Ramos that the supervisors in her chain of command
would meet with her to discuss options of possible
reassignment.
In an effort to resolve her informal EEO complaint, Ramos
requested that Edward Finnegan, the Assistant Section Chief
of the Eurasian Section of the FBI’s Counterintelligence
Division, and Douglas Lindquist, the Section Chief of the
Eurasian Section of the FBI’s Counterintelligence Division,
transfer her outside of Unit 1D. Ramos imparted that she
would prefer a transfer outside of the Eurasian Section
completely but would accept a temporary duty assignment.
On August 31, 2011, after failed attempts to transfer
Ramos, she filed a formal complaint with the EEO.
On the same day, apparently unaware that Ramos had filed
a formal complaint, Finnegan emailed Ramos with an
opportunity to permanently reassign her to Unit 1B, the section
he and Lindquist supervised within the Eurasian unit. In
response to Ramos’s request for a temporary assignment,
Finnegan relayed that he did not think a temporary assignment
was going to be possible instead of a permanent transfer (after
several attempts to secure her reassignment outside of the
Eurasian Section), but if she accepted the permanent transfer to
Unit 1B they could move on the reassignment
immediately. On September 5, 2011, Finnegan sent another
email reiterating that the permanent transfer to Unit 1B was
4
available and that “the option of a [temporary] out of section
[assignment] [would not] provide a practical solution” because
the Section could not “spare the resources.” J.A. 319. Ramos
responded to Finnegan’s email offering reassignment to Unit
1B by asking to discuss the option further in the coming days.
On September 9, 2011, Ramos emailed Finnegan noting
that she understood that the Eurasian Section would not allow
for her temporary assignment outside of the section or division,
but “as an interim measure,” she would accept the opportunity
to transfer to Unit 1B. J.A. 320. Two hours later, Finnegan
emailed Ramos noting that he had been “notified that the EEO
matter [had] now been made formal and that the next step [was]
mediation.” Id. For this reason, Finnegan explained that “the
most appropriate course of action now is to allow [the EEO]
process to determine” where Ramos would be transferred and
under what circumstances and that he did not “want any
continued direct action on [his] part to be construed as
interfering with the mediation process.” Id.
2.
Second, Ramos contends the FBI retaliated by instating
someone to replace her in a leadership position following her
return from medical leave. From 2010 through 2014, Ramos
intermittently served as Program Manager for the FBI’s
Double Agent Operations Program. During that time, Ramos
also served as the Program Manager for CENTCOM, the
Extraterritorial Program, the former Soviet Republics, and
Non-Establishment Offices “at minimum.”
Ramos took medical leave in late 2012 through
2013. While Ramos was on medical leave, Steven Jett, Acting
Unit Chief, covered for Ramos in managing the Double Agent
Program. While Ramos was out on leave, Jett reached out to
her to convey that he was thinking about contacting the
Washington Field office to ask for someone to cover the
5
program as a temporary 90-day assignment. However, Jett
also told Ramos that the Washington Field office might “say
no” to letting an agent do a temporary detail, S.J.A. 839—40,
so when he heard that Supervisory Special Agent Anthony
Wagoner became “eligible for retirement” and was looking for
a transfer for “7 to 8 months,” Jett hired him. S.J.A. 680. Jett
testified that he viewed Wagoner as a temporary transfer and
that Wagoner was brought in to give Ramos “a break” while
she was on medical leave. Id. at 409. Jett noted that he
“didn’t want to keep harassing her while she was on leave with
work.” Id. at 409–10.
Ramos returned from her medical leave in January 2013
and resumed managing the Double Agent Program. On
March 28, 2013, Jett emailed the Double Agent Program’s
contacts within the FBI, copying Ramos, that Wagoner would
be Program Manager and Ramos would be the Backup
Program Manager for the Double Agent Program. Ramos
responded to this email “upset” by the replacement. J.A.
410. Jett noted that he was “surprised” by Ramos’s reaction to
the reassignment because he thought he was doing her a favor.
Id. at 414. He was also surprised since he had told her on
multiple occasions that the reassignment was temporary and
that when Wagoner retired it would be Ramos’s program
again.
On May 31, 2013, Wagoner retired and Ramos was
reinstated as Program Manager of the Double Agent Program.
3.
Third, Ramos states that after returning from medical
leave, the FBI refused to grant her requests to be transferred to
different offices. Ramos requested to transfer outside of Unit
1D on three separate occasions in 2013 and 2014.
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The first occasion Ramos requested a transfer was in
October 2013 when the International Operations Division
(“IOD”) of the Bureau announced that it was seeking an agent
to join its Belgium office as a transfer. Ramos volunteered for
this position, along with others, including Agent Ben
Larson. The names of all the agents in the Eurasian Section
volunteering for this position, including Ramos, were
submitted up their chain of command. The
Counterintelligence Division Deputy Assistant, Debra Smith,
asked Brian Brooks (who had replaced Lindquist as the Section
Chief of the Eurasian Section) to narrow down the list of
candidates from the Eurasian Section. The next day, Smith
indicated in an email to another section that she had three
finalists: Larson from the Eurasian Section and two candidates
from other sections. Those three candidates were ranked by
their enter on duty (“EOD”) date, or the first day that the agent
began school at Quantico. The Bureau often used this ranking
system (choosing the agent with the most seniority) to decide
who gets the transfer. Following that system, the Bureau
chose Agent Larson for the transfer because his EOD date
preceded the other two finalists’ dates.
The second and third occasions that Ramos requested a
transfer were in April and May of 2014. In April 2014, Ramos
responded to a job posting for a critical needs transfer to the
Boston Field Office, and in May 2014 Ramos responded to a
job posting for a voluntary rotational transfer to the New York
Field Office. Ramos was denied both transfers because of her
rating as “Minimally Successful” in her 2013 Performance
Appraisal Review (“PAR”). When Ramos inquired about
these denials, the Bureau cited a policy explaining that an agent
must have at least a “Successful” PAR rating to be eligible to
transfer.
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B.
This case was pending in the District Court for seven
years. Ramos first filed the action on March 13, 2013, alleging
that the FBI discriminated against her based on race (Count I),
subjected her to a hostile work environment (Count II), and
retaliated against her for filing an administrative complaint
reporting negative treatment (Count III). On June 20, 2013,
the FBI moved to dismiss both the racial discrimination and
hostile work environment claims. On March 21, 2014, the
District Court granted the FBI’s motion to dismiss the hostile
work environment claim but denied its motion as to Ramos’s
racial discrimination and retaliation claims.
On March 10, 2014, shortly before the court ruled on the
FBI’s motion to dismiss, Ramos sought to file a motion for
leave to supplement the complaint—adding several new claims
to her case. Ramos contended that additional incidents of
unlawful retaliation took place after the filing of the initial
complaint, such as the Bureau rejecting Ramos’s request for
medical leave without pay under the Family Medical Leave
Act, delaying Ramos’s reauthorization to carry her firearm,
rating her “Minimally Successful” in her 2013 performance
review, and significantly decreasing her supervisory
responsibilities. The District Court denied the motion,
however, finding that the motion was not ripe for consideration
because Ramos had not separately exhausted her
administrative remedies for those allegations before bringing
the lawsuit, which is required by Title VII. See 42 U.S.C. §
2000e-5(f)(1); see also Park v. Howard Univ., 71 F.3d 904, 907
(D.C. Cir. 1995) (“Title VII requires that a person complaining
of a violation file an administrative charge with the EEOC and
allow the agency time to act on the charge.”).
The FBI moved for judgment on the pleadings on
December 10, 2014, which the District Court granted in part
and denied in part. The District Court granted the FBI’s
8
motion on the racial discrimination claim because Ramos had
not “plausibly alleged that she was subjected to an adverse
employment action.” Ramos v. Lynch, No. 1:13-CV-328-
ABJ, 2015 WL 11303199, at *5 (D.D.C. July 7, 2015). The
court denied the FBI’s motion on the retaliation claim,
however, “insofar as it [was] based on allegations concerning
the September 2011 rescission of the offer to transfer and the
November 2011 performance evaluation” and not any other
allegations of retaliation. Id. at *10.
On August 25, 2015, Ramos moved to file an amended
complaint “to address [] continued and escalating acts of
retaliation” by the FBI. J.A. 105–06. The District Court
granted Ramos’s motion to amend her complaint on November
10, 2015, which claimed that she was stripped of her
supervisory roles, denied various transfers, and was
constructively forced to withdraw from a particular program.
On February 2, 2016, the FBI moved to dismiss the
amended complaint in part, or in the alternative, for summary
judgment in part. The District Court granted the FBI’s motion
in part and denied it in part, finding that Ramos’s rescinded
transfer claims had merit but her claims regarding her lower
ratings on the 2011 PAR and her forced withdrawal from the
Executive Development Service Program (or constructive
demotion) failed. Ramos filed a second amended complaint
on March 14, 2017, in accordance with the Court’s decision.
Then on May 15, 2018, Ramos moved to file a third
amended complaint seeking to add new allegations of
retaliation. Ramos alleged that in 2016, the FBI launched an
internal investigation into whether she falsified a bureau
accident report in 2015. Upon completion of the investigation,
the FBI placed Ramos on indefinite suspension and non-pay
status, revoked her Top Secret Security clearance, and opposed
her receipt of unemployment benefits. The FBI opposed the
9
motion, arguing that Ramos must separately administratively
exhaust her new allegations. The District Court agreed.
On January 31, 2020, Ramos renewed her motion for leave
to file a third amended complaint. In response, the FBI moved
for summary judgment. Ramos opposed the FBI’s
motion. On August 11, 2020, the District Court denied
Ramos’s motion for leave to file a third amended
complaint. The court found that adding some of Ramos’s new
allegations of retaliation would be futile because they failed to
allege materially adverse actions. And it determined that
adding others to an already seven yearlong litigation where the
court already twice before granted leave to amend, and
discovery for the second amended complaint had already
closed, would unduly delay trial and create prejudice for the
government. Additionally, the court granted the FBI’s motion
for summary judgment on all original claims, noting that
Ramos did not proffer sufficient evidence that any of the
alleged acts were “materially adverse.”
Ramos timely appealed.
II.
Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination against “any individual” based on
that individual’s “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a). A separate provision of the
Act, the antiretaliation provision, forbids an employer from
“discriminat[ing] against” an employee or job applicant
because that individual “opposed any practice” that is unlawful
under Title VII or because that individual “made a charge,
testified, assisted, or participated in” a Title VII proceeding or
investigation. Id. at § 2000e–3(a).
In Burlington Northern and Santa Fe Railway Co. v.
White, the Supreme Court addressed the purpose of the
10
antiretaliation provision. 548 U.S. 53, 63 (2006). The Court
explained that the antiretaliation provision’s primary objective
is to “seek[] a workplace where individuals are not
discriminated against” for their race, ethnicity, religion, or
gender status. Id. It “seeks to secure that primary objective
by preventing an employer from interfering (through
retaliation) with an employee’s efforts to secure or advance
enforcement of the Act’s basic guarantees.” Id. But the
antiretaliation provision does not protect an individual from
“all retaliation, but from retaliation that produces an injury or
harm.” Id. at 67. Specifically, the provision protects an
employee from an employer’s “materially adverse action,”
meaning an action that “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Id. at 68.
Summary judgment is not appropriate unless “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Thus, the question before this
Court is whether Ramos provided sufficient evidence to create
a genuine dispute that the Bureau’s actions were materially
adverse to her and taken with a retaliatory motive. See
McGrath v. Clinton, 666 F.3d 1377, 1380 & n.3 (D.C. Cir.
2012).
A.
The Bureau argues that Finnegan’s decision to withdraw
his offer for Ramos to transfer to Unit 1B after he learned that
she launched a formal EEO complaint was not a materially
adverse action taken with retaliatory motive toward her. The
Bureau contends that Finnegan’s action in withdrawing
himself from the process of helping find transfer opportunities
for Ramos and rescinding the offer to transfer her to Unit 1B
was not adverse because his actions were merely an attempt to
not interfere with the EEO process. Additionally, the Bureau
11
highlights that Finnegan did not understand Ramos’s email to
be an acceptance of the offer to transfer to Unit 1B because he
offered Ramos a permanent transfer and she accepted on a
temporary basis.
Before the District Court, Ramos presented evidence that
she had accepted the transfer offer to Unit 1B in an email to
Finnegan on September 9, 2011. Two hours later, Finnegan
responded to Ramos’s acceptance by withdrawing the transfer
offer because Ramos formalized her EEO
complaint. Irrespective of whether Finnegan understood her
to not be accepting his offer as a permanent transfer, there is
sufficient evidence for a reasonable jury to conclude that
Ramos accepted the offer and that Finnegan’s rescission had
retaliatory motive because it was the direct result of Ramos’s
formal EEO complaint. There is also sufficient evidence for a
reasonable juror to conclude that Finnegan ceased searching
for other transfer opportunities for Ramos because of the
same. Additionally, Ramos presented evidence that the
transfer to Unit 1B would have broadened her “career
opportunities[,] [] enhance[d her] skill sets as an agent,” and
provided her with a better and more positive work
environment. Cf. Ortiz-Diaz v. HUD, 867 F.3d 70, 74—77
(D.C. Cir. 2017) (concluding in the discrimination context that
similar evidence created a genuine issue of material fact as to
material adverseness).
Because Finnegan’s actions were the direct result of
Ramos’s EEO complaint and Ramos provided sufficient
evidence that the action was materially adverse to her, we find
that there is a genuine dispute as to whether Finnegan’s
rescission of his offer to transfer Ramos to Unit 1B constituted
a “materially adverse action” taken with retaliatory
motive. Thus, the District Court erred in granting summary
judgment on this claim. See Forman v. Small, 271 F.3d 285,
299–300 (D.C. Cir. 2001) (reversing summary judgment on
retaliation claim where the employer’s own statements
12
indicated that his adverse action of failing to forward the
employee’s complaint to the appropriate party was in response
to the employee’s protected activity).
B.
Ramos contends that the Bureau’s reassignment of her
duties from Program Manager to “Backup Program Manager”
of the Double Agent Operations Program was materially
adverse to her and the result of retaliatory intent.
However, the Bureau provided a legitimate, nonretaliatory
reason for Jett’s decision to make Ramos Backup Program
Manager: concern for her well-being when she returned to
work following medical leave and was still recovering from
injuries. Jett noted that the motive in looking to bring
someone in was to give Ramos “a break” while she was on
medical leave so that Jett would not “keep harassing her while
she was on leave with work.” J.A. 409–10. Then, when Jett
announced the reassignment after Ramos had returned from
medical leave, he explained that he did not want to burden
Ramos with a heavy workload as she was recovering from her
injuries. He testified he was “surprised” that Ramos was upset
with the reassignment because he thought he was doing her a
favor. He also noted that he told her on multiple occasions that
the reassignment was temporary and that when Wagoner
retired in “7 to 8 months” that it would be Ramos’s program
again. S.J.A. 680. About two months after the reassignment,
Wagoner retired and Ramos was reinstated as Program
Manager of the Double Agent Program.
Because Ramos did not provide sufficient evidence for a
reasonable jury to conclude that Jett’s actions reassigning her
to Backup Program Manager were retaliatory, we affirm the
District Court’s grant of summary judgment on this claim.
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C.
Ramos also contends that the Bureau acted in retaliation
by denying several transfer requests from 2013 to 2014,
including a request to IOD and to the Boston and New York
Field Offices.
Ramos points to her denied IOD transfer request as a
materially adverse action that the Bureau took based on her
protected activities. She argues that the transfer was
materially adverse because, without it, she was forced to
remain at headquarters longer than most agents, where she
obtained more limited and less desirable experiences. But
Ramos presented no evidence of that effect, and the evidence
does not indicate that she experienced more than “trivial
harms” as a result of the denial. White, 548 U.S. at 68. In
this context, no reasonable jury could conclude that the denial
was a materially adverse action.
Ramos’s claims regarding the Boston and New York
transfers fail because no reasonable jury could conclude that
the denials were based on retaliatory motive. In her exchange
with a representative in the Transfer Unit, Ramos learned that
she was not chosen for the transfers because an agent must have
at least a “Successful” PAR rating (per FBI policy) to become
eligible to transfer. At that time, Ramos had a “Minimally
Successful” PAR rating and was thus not eligible. Ramos did
not provide any evidence that any members from the Transfer
Unit had the ability to override the policy or that the application
of the policy was pretextual.
Thus, the District Court did not err in granting summary
judgment in favor of the Bureau on its denial of the transfers to
IOD or to the Boston and New York Field Offices.
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III.
This Court reviews a district court’s denial of leave to
amend the Complaint for abuse of discretion, except for denials
based on futility, which we review de novo. Xia v. Tillerson,
865 F.3d 643, 649 (D.C. Cir. 2017).
Ramos contends that the District Court erred when
denying her motion for leave to file a third amended complaint
to include new allegations of retaliation, including that the FBI
gave her a minimally successful PAR rating, confiscated her
FBI-issued firearm, excluded her from meetings, removed her
authority to carry an FBI-issued firearm, and refused to allow
Ramos to take leave without pay for surgery.
But in Ramos’s opening brief, she fails to make any
arguments addressing how the District Court abused its
discretion by concluding that granting the motion would cause
undue delay or prejudice to the FBI. Ramos also offers only
skeletal and inadequately developed arguments that the District
Court erred in concluding that it would have been futile to add
allegations about Ramos’s exclusion from meetings. See Al-
Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (“A party
forfeits an argument by failing to raise it in his opening brief.”);
Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir.
2019) (holding that a party forfeits any argument when it only
mentions it “in the most skeletal way, leaving the court to do
counsel’s work, create the ossature for the argument, and put
flesh on its bones”). Accordingly, we find that the District
Court did not abuse its discretion by denying Ramos’s motion
for leave to file a third amended complaint.
* * *
For the foregoing reasons, we reverse the District Court’s
grant of summary judgment with regard to the 2011 rescission
of the offer to transfer to Unit 1B, but we affirm on all other
grounds.
So ordered.