United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT [DKT. 35]
Vanessa L. Bryant United States District Judge.
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
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]. 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.
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.
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].
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].
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)].
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
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
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.
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.
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
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
[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.
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.
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)].
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].
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
[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].
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
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
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].
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.
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].
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)].
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].
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].
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.
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).
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
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
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 ...