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Rodriguez-Coss v. Sessions

United States District Court, D. Connecticut

June 29, 2018



          Hon. Vanessa L. Bryant United States District Judge.

         Plaintiff Jacabed Rodriquez-Coss (“Plaintiff” or “Rodriquez-Coss”) brings this action raising claims of retaliation and sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and discrimination due to perceived or actual disability under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., arising from her employment at the Department of Justice. Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. [Dkt. 35]. For the reasons that follow, the Court GRANTS Defendant's motion.


         The following facts are taken from the Local Rule 56 statements of material facts and evidence cited by the parties, and they are read in the light most favorable to the non-movant. In 2008, Rodriquez-Coss joined the Department of Justice's Criminal Division, as an attorney in the Capital Case Unit (“CCU”) in Washington D.C. [Dkt. 35-2 (D. Conn Civ. L. R. 56(a)(1) Stmt.) ¶ 1; Dkt. 47 (D. Conn. Civ. L. R. 56(a)(2) Stmt.) ¶ 1].[1] Initially, when Rodriquez-Coss first joined the CCU, members of the CCU were not required to travel to the regional United States Attorney Offices (“USAO”). [Dkt. 46-2, Ex. B (Rodriquez-Coss Dep.) at 40:8-11]. One of the primary reasons that Rodriquez-Coss accepted the position at the CCU was the promise from the previous chief of the CCU that there was no travel requirement. Id. at 23:6-9.

         In 2010, Kevin Carwile became Chief of both the CCU and the Capital Case Section (“CCS”). [Dkt. 46-5, Ex. E (Carwile Dep.) at 166:1-167:14]. Carwile expanded the unit's mission to include the active litigation of cases with the local USAOs. Id. This expansion meant attorneys in the unit were required to travel to the venues where their assigned cases were pending.

         In the months following this meeting, Rodriquez-Coss's husband accepted a job in Connecticut, leading Rodriquez-Coss to resign from her position at the CCS. [Dkt. 46-2 at 53:3-9]. A week before her employment ended with the CCS, Gwynn “Charlie” Kinsey, the Deputy Chief of the CCS, offered Rodriquez-Coss the opportunity to continue working with the CCS remotely on a capital case pending in Connecticut, United States v. Aquart, which was then pending in Connecticut. Id. at 53:10-16. Rodriquez-Coss accepted and signed her first Flexiplace Agreement on November 8, 2010, which enabled her to work remotely for the CCU from the USAO in Bridgeport, Connecticut. [Dkt. 35-4, Ex. D (Flexiplace Agreements) at 71 of PDF]. The term of this agreement lasted until February 28, 2011. Id. As the agreement detailed, “[d]uring the period of this arrangement, the employee will be assigned to assist in the pretrial preparation of U.S. v. Azibo Aquart, et al. . . . as well as conduct case review and policy work as assigned by CCU. At the end of the agreement period, the Chief of the Capital Case Unit will evaluate if extension is warranted, and a new agreement will be required if extension is granted.” Id. Rodriquez-Coss initially believed that this assignment was only a temporary measure until she was able to find other employment in Connecticut. [Dkt. 46-2 at 29:21-25].

         After the Aquart trial concluded in July 2011, Carwile contacted Rodriquez-Coss to inform her that she could continue working for the CCS from Connecticut based on continually updated Flexiplace Agreements. Id. at 29:16-30:2; [Dkt. 35-2 ¶ 5; Dkt. 47 ¶ 5]. Thereafter, until February 2014, Rodriquez-Coss worked for the CCS in Connecticut under Flexiplace Agreements of varying duration on cases pending in New England primarily. [Dkt. 35-2 ¶ 5; Dkt. 47 ¶ 5].

         After the conclusion of the Aquart trial, during the summer of 2011, Rodriquez-Coss was assigned to litigate a § 2255 habeas case, United States v. Fell, in Vermont. [Dkt. 35-2 ¶ 8; Dkt. 47 ¶ 8; Dkt. 35-5, Ex. Q (Email 1/6/14)].

         Months later, near the end of 2011 or at the beginning of 2012, Rodriquez-Coss was assigned an additional case, United States v. Stone, pending before the Eastern District of California in Fresno. [Dkt. 46-2 at 58:21-59:3]. When Rodriquez-Coss received this assignment, she immediately called Carwile to inform him that it would be very difficult for her to litigate the case, since it would require her to be away from her family for three to four months at a time. Id. at 82:9-17. Rodriquez-Coss did not resign from her position and proceeded to litigate the case; however, she continually requested a reassignment, and even proposed alternative solutions, so that she could assist with the case without acting as the lead prosecutor. Id. at 83:14-23. Despite her misgivings, Rodriquez-Coss entered her appearance in the case on March 26, 2012. [Dkt. 35-5, Ex. F (Not. Appearance)].

         In addition to Fell and Stone, Rodriquez-Coss was also assigned a case pending in Rhode Island, United States v. Pleau, in 2012. [Dkt. 35-5, Ex. Q]. All three of these cases--Fell, Stone, and Pleau--remained active until the summer of 2013, when the defendant in Pleau pled guilty. [Dkt. 46-2 at 162:24-164:1].

         Several AUSAs submitted affidavits opining that the number of cases assigned to Rodriquez-Coss was abnormal. [Dkt. 46-6, Ex. F (Mosley Decl.) ¶ 11; Dkt. 46-7, (Hegyi Decl.) ¶ 16]. According to Kinsey, at the time his deposition was taken the CCS currently had an estimated total of eight to 12 capital cases and 15 to 25 § 2255 cases, with a total of 13 attorneys. [Dkt. 46-5 at 118:21-120:2]. Based on Kinsey's estimate of a range of 23-38 cases and 13 AUSAs, there could not be an equal number of cases assigned to each AUSA in the unit. There is no evidence in the record showing the number of active criminal cases, criminal trials or habeas cases pending in the unit during the time Rodriguez-Coss was employed. Nor is there any evidence of the number of AUSAs in the unit, their background and experience, their reporting relationships or their caseloads.

         During the summer of 2012, Rodriquez-Coss complained of discriminatory accommodations to her supervisors. [Dkt. 46-1, Ex. A (Rodriquez-Coss EEOC Stat.) at 17:12-13]. Rodriquez-Coss complained that a white male coworker, Stanley Rothstein, was not required to travel or litigate cases outside of Washington, D.C. Id. at 17:13-19. Rothstein confirmed that, between 2008 and 2013, he was only assigned one case. [Dkt. 46-11, Ex. K (Rothstein Decl.) ¶ 4]. During that case, Rothstein was not an active litigator and only made two short trips to the regional USAO. Id.

         In late 2012, Rodriquez-Coss's family was impacted by the tragic mass shooting at Sandy Hook Elementary School, located five minutes away from where Rodriquez-Coss lived. [Dkt. 46-2 at 117:10-12]. Rodriquez-Coss testified that, given the proximity of this shooting, there was an emotional impact on Rodriquez-Coss's family, particularly her school-age children. Id. at 117:12-13, 119:24-120:8. Because of this turmoil, Rodriquez-Coss expressed concerned to Carwile and Kinsey about leaving her family for months to conduct a lengthy trial. Id. at 117:17-20. As Rodriquez-Coss informed Kinsey, the combined stress of three active cases alongside her family's struggles made it increasingly difficult to adequately litigate each case. Id. at 117:24-118:2.

         On February 26, 2013, Carwile wrote in an email:

As you know, we have Jackie Rodriquez-Coss on our payroll but working out of the USAO in Connecticut. Not a perfect arrangement but I prefer, at this point, to continue the arrangement until midsummer and see where we stand at that point as a result of hiring additional attorneys, etc. Her prior Flexiplace Agreement has expired. . . . I would like to [renew] this asap because she recently received her mid-year review and started squawking when she was told she needed to be more proactive in traveling to cover her litigation matters. Before I raise this matter with her again, I want to get an updated agreement in place. I shortened the duration of the agreement in the event this turns into a larger problem.

[Dkt. 35-5, Ex. H (Email 2/26/13)]. Rodriquez-Coss was subsequently issued a four-month Flexiplace Agreement on February 27, 2013 with an expiration date of June 29, 2013. [Dkt. 35-4 at 75 of PDF]. Rodriquez-Coss was later offered a six-month Flexiplace Agreement that was signed on June 30, 2013, and ended December 31, 2013. Id.

         As Rodriquez-Coss continued to litigate Stone in 2013, she encountered numerous hurdles. She testified that the previous prosecutors had apparently “neglect[ed]” the case before Rodriquez-Coss was assigned. [Dkt. 46-2 at 83:13- 17]. Moreover, the local AUSA assisting Rodriquez-Coss was inexperienced and completely unfamiliar with the case. Id. at 93:20-94:1. The federal judge in Stone was also considered to have negative feelings about the death penalty. Id. at 169:12-17. The record is devoid of any evidence of tardy filings in the Stone case before it was assigned to Rodriquez-Coss. Nor is there any evidence on the record of judicial bias on the part of the presiding judge(s) or that Rodriquez-Coss filed a motion to recuse or to disqualify the judge.

         On February 5, 2013, Judge John C. Coughenour noted that Rodriquez-Coss filed a tardy response to a discovery motion in Stone. [Dkt. 35-5, Ex. G (Stone Tr. 2/5/13) at 13]. In the months that followed, Rodriquez-Coss missed numerous other deadlines. See [Dkt. 35-5, Ex. K (Stone Order 10/21/13) (noting six untimely filings on January 7, January 9, August 22, September 30, October 4, and October 10)].

         On October 9, 2013, Rodriquez, Carwile, and Kinsey discussed Rodriquez-Coss's litigation assignments over a conference call. [Dkt. 46-4, Ex. D (Kinsey Dep.) at 48:4-9]. During this call, Rodriquez-Coss informed Carwile and Kinsey that she could not travel to California for several months in order to prosecute Stone. Id. at 53:6-7, 53:14-19. Either during this conversation or during one similar, Rodriquez-Coss characterized the local AUSA as busy and less active with the case. [Dkt. 46-2 at 169:9-170:23]. Nevertheless, Rodriquez-Coss asked Carwile to reduce her workload by reassigning the guilt phase of Stone to the inexperienced local AUSA, leaving her to try the penalty phase only. [Dkt. 46-2 at 83:14-23, 175:19-22]. Rodriquez-Coss believed that “the evidence [in Stone] was pretty overwhelming for the government” and thus “felt that was something that a regular prosecutor didn't need capital experience in order to handle the guilt phase of the trial.” Id. at 176:1-15. This proposed reassignment was rejected. Id. at 84:20-22. Carwile admitted that he allowed similar arrangements for other CCS attorneys. [Dkt. 46-5 at 24:1-5].

         Nearly two years after the case was assigned to her, on October 21, 2013, Judge Coughenour again reprimanded the prosecution, headed by Rodriquez-Coss, for failing to meet deadlines. [Dkt. 35-5, Ex. K at 2-3]. In a written order, the court remarked that:

[T]he government has demonstrated a cavalier attitude towards obeying deadlines and other procedural requirements, and thus its demand that the Court refuse to grant Defendant an extension of time after a timely motion is audacious at best. The inability of the attorneys representing the United States to obey court orders has significantly lowered their credibility with the Court. Counsel are forewarned that the Court is seriously considering an order to show cause why government counsel should not be held in contempt for their flagrant disregard of the Court's orders.

Id. The magistrate judge assigned to Stone, Magistrate Judge Gary S. Austin, also noted the “government's pattern of filing untimely motions and deficient responses” on November 8, 2013. [Dkt. 35-5, Ex. L (Stone Order 11/8/13) at 1 n.1]. A few weeks later on November 20, 2013, Magistrate Judge Austin cautioned the government “that future late filings in this case will not be tolerated and will likely result in the imposition of sanctions.” [Dkt. 35-5, Ex. N (Order 11/20/13) at 2].

         On November 26, 2013, there were two conference calls between Rodriquez, Carwile, and Kinsey. [Dkt. 46-4 at 88:17-22, 93:11-15]. The first call was a case review that included the Fresno USAO Branch Chief Kevin Rooney and the Fresno AUSA, Mike Fry, assigned to Stone. Id. at 88:17-22. During the call, Rodriquez-Coss claimed that her work in Stone was impairing her ability to work on Fell. Id. at 91:7-10. Immediately afterwards, Rodriquez, Carwile, and Kinsey held a conference call. Id. at 93:11-15. Kinsey's notes indicate Rodriquez-Coss complained about the “fundamentally unfair” travel requirements and said she would not try the Stone case as scheduled. Id. at 96:3-97:11.

         A few weeks later, on December 19, 2013, Rodriquez-Coss was given a two-month, instead of a six-month, Flexiplace Agreement, which was effective from January 1, 2014 to February 28, 2014. [Dkt. 35-5, Ex. D]. In an email sent alongside the new agreement, Kinsey informed Rodriquez-Coss that subsequent agreements were “dependent on your satisfactory completion of all pre-trial and trial litigation duties and other assigned work responsibilities.” [Dkt. 35-5, Ex. J (Email 12/19/13)]. In response, Rodriquez-Coss noted that, in her situation, ending her Flexiplace Agreement “would be tantamount to a constructive firing” and “our current disagreements are stressful enough without adding to them the uncertainty, every two months, of whether my Flexiplace agreement will be renewed.” Id. Carwile later testified that the period for Rodriquez-Coss's Flexiplace was reduced in response to Rodriquez-Coss's objections to travel and to “buy additional time” to resolve this issue. [Dkt. 46-5 at 48:8-49:1].

         Soon thereafter, on January 7, 2014, Carwile issued an official reprimand to Rodriquez. [Dkt. 35-5, Ex. R (Official Reprimand)]. Carwile wrote:

This is an official reprimand for your refusal to handle a case assignment given to you by your supervisors. You informed Capital Case Section (CCS) that you are unwilling to litigate the case of United States v. Samuel Stone (E.D. Cal.) due to the travel required to adequately prepare and prosecute this matter. You cannot unilaterally refuse to handle a case or change your work assignments to accommodate your personal preferences. This conduct is unacceptable and will not be tolerated. You are expected to accept all assignments from your supervisors.

Id. The reprimand was “intended to be constructive in nature” and was added to Rodriquez-Coss's personnel file. Id. Later that month, on January 22, 2014, Rodriquez-Coss contacted the Department of Justice's Equal Employment Opportunity Commission (“EEOC”), [Dkt. 35-5, Ex. T (EEOC Compl.)], and she filed an internal grievance regarding her official reprimand, [Dkt. 35-5, Ex. Z (Grievance Response 3/28/14). CCS was later notified of the EEOC contact on February 4, 2017. [Dkt. 35-5, Ex. U (EEO Letter Excerpt 6/4/14)]. The reprimand was later upheld by the Department of Justice's Grievance Official, who called the reprimand “fair and reasonable.” [Dkt. 35-5, Ex. Z].

         Around February 10, 2014, Carwile and Kinsey learned of the deficient filings in Stone. [Dkt. 46-4 at 159:22-160:22]. At this time, the U.S. Attorney for the Eastern District of California alerted Carwile and Kinsey to the reprimands issued by the Stone judges. Id. at 160:18-22; [Dkt. 46-5 at 82:19-83:4]. Two weeks later, on February 24, 2014, Carwile notified Rodriquez-Coss that he would not renew her Flexiplace Agreement after it expired on February 28, 2014. [Dkt. 35-5, Ex. Y (Email 2/24/14)]. Carwile explained his decision was based on “revelations over the last 2 weeks that were brought to my attention which relate to missed deadlines and other deficiencies in court filings.” Id. Moreover, Carwile also “determined that more direct supervision of [Rodriquez-Coss's] work is needed” and instructed Rodriquez-Coss to resume working from the CCS office in D.C. beginning March 31, 2014. Id. On March 24, 2014, Rodriquez-Coss emailed Carwile seeking authorization to continue working from Connecticut until April 30 in preparation for an evidentiary hearing in Fell. Id. This was denied. Id.

         Rodriquez-Coss did not return to the CCS office on March 31, 2014. [Dkt. 35-2 ¶ 31; Dkt. 47 ¶ 31]. Instead, on March 31 at 10:35 pm, she emailed Carwile and Kinsey, explaining:

Unfortunately, the stress from my current disputes pertaining to the status of my flexi-place agreement has had a marked and detrimental effect on my health, to the point where I am now under the continuing care of physicians and taking medication. While I am suffering medically from this situation and under the care of physicians, I simply cannot act contrary to their advice and report for duty in Washington. I will be providing you with medical documentation that the requested transfer is detrimental to my health and that I can only continue working with the limitation that I remain in their care.

[Dkt. 35-5, Ex. AA (Email 3/31/14)]. Rodriquez-Coss also indicated that she would continue working out of the Connecticut USAO. Id. The following afternoon, Kinsey replied and informed Rodriquez-Coss that she would be placed on “AWOL status” starting April 2, 2014 unless she provided medical documentation, since she did not report to the D.C. office. Id. On April 2, 2014 Rodriquez-Coss was declared AWOL and, because of her AWOL status, Kinsey cancelled Rodriquez-Coss's enrollment in a training that was necessary for her to stay in good standing with her state bar. Id.; [Dkt. 35-2 ¶ 33; Dkt. 47 ¶ 33].

         Rodriquez-Coss provided medical documentation from her general practitioner on April 3, 2014. [Dkt. 35-5, Ex. AA]. After receiving the documentation, Kinsey informed Rodriquez-Coss that she was still on AWOL status and could not work from the Connecticut USAO. Id. In the days that followed, Rodriquez-Coss supplied further medical documentation indicating that she had suffered chest pains and an anxiety attack induced by the “stress of her present situation.” [Dkt. 35-5, Ex. GG (Medical Records)]. Rodriquez-Coss was eventually granted sick leave from April 4, 2014 to May 12, 2014 and annual leave under the Family and Medical Leave Act from May 13, 2014 to May 30, 2014. [Dkt. 35-2 ¶ 36; Dkt. 47 ¶ 36; Dkt. 35-5, Ex. BB (Leave 3/23/14 to 4/5/14); Dkt. 35-5, Ex. CC (Sick Leave Grant)].

         On May 6, 2014, Rodriquez-Coss filed a formal complaint of discrimination with the Department of Justice's EEO staff. [Dkt. 35-2 ¶ 37; Dkt. 47 ¶ 37].

         Then, on May 20, 2014, Rodriquez-Coss informed CCS management that she had accepted a position with the USAO in Connecticut and was resigning from the CCS. [Dkt. 35-2 ¶ 39; Dkt. 47 ¶ 39]. Rodriquez-Coss also indicated that she intended to remain on leave for the remainder of her time with CCS. [Dkt. 35-2 ¶ 39; Dkt. 47 ¶ 39]. Rodriquez-Coss's position was converted from a Trial Attorney to an AUSA in the District of Connecticut on June 1, 2014. [Dkt. 35-2 ¶ 40; Dkt. 47 ¶ 40]. This was effectively a transfer and Rodriquez-Coss remained continuously employed by the Department of Justice. [Dkt. 35-2 ¶ 40; Dkt. 47 ¶ 40].

         On March 23, 2016, the DOJ EEOC granted Rodriquez-Coss the right to a file a complaint within 30 days. [Dkt. 1 (Compl. and Exs.) at 105 of PDF]. This case was timely filed on April 21, 2016. Id. at 1.

         Standard of Review

         Summary judgment should be granted “if 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). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether the burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch- Rubin v. Sandals Corp., No. 3:03-cv-481, 2004 WL 2472280, at *4 (D. Conn. Oct. 20, 2004) (“At the summary judgment stage of the proceeding, [p]laintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.”) (citing Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). Put another way, “[i]f there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (quotation omitted). In addition, “the court should not weigh evidence or assess the credibility of witnesses” on a motion for summary judgment, as “[t]hese determinations are within the sole province of the jury.” Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996).

         A party who opposes summary judgment “cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb, 84 F.3d at 518. “Summary judgment cannot be defeated by the presentation . . . of but a ‘scintilla of evidence' supporting [a] claim.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010) (quoting Anderson, 477 U.S. at 252). Rather, a party opposing summary judgment “must come forth with evidence sufficient to allow a reasonable jury to find in [its] favor.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). The evidence such as affidavits offered in opposition to a motion for summary judgment must be both admissible and must be sufficient to raise a genuine issue of material fact. See Fed. R. Civ. P. 56(c); H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991); Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986); Martinez v. State of Connecticut, 817 F.Supp.2d 28, 37 (D. Conn 2011); Hollander v. Am. Cyanamid Co., 999 F.Supp. 252, 256 (D. Conn. 1998) (citing John Hancock Prop. and Cas. Ins. Co. v. Universal Ins. Co., Ltd., 147 F.R.D. 40, 45 (S.D.N.Y. 1993); Welch-Rubin, 2004 WL 2472280, at *1.

         “Each statement of material fact by a movant in a Local Rule 56(a)1 Statement . . . must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial, or (2) other evidence that would be admissible at trial.” D. Conn. L. Rule 56(a)3; see also Fed. R. Civ. P. 56(e). The Local Rules also points out,

Failure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming admitted certain facts that are supported by the evidence in accordance with Local Rule 56(a)1, or in the Court imposing sanctions, including, when the movant fails to comply, an order denying the motion for summary judgment, and when the opponent fails to comply, an order granting the motion if the motion and supporting materials show that the movant is entitled to judgment as a matter of law.

Id.; Fed. R. Civ. P. 56(e). Where there is no admissible evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712, 727 (2d Cir. 2010). “The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is ...

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