UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEGUNDO PEREIRA,

Plaintiff,

v. Civil Action No. 20-3836 (TJK) MARTIN J. GRUENBERG, Chairman, Fed- eral Deposit Insurance Corporation,

Defendant.

MEMORANDUM OPINION

Segundo Pereira was removed from his position as head of the Federal Deposit Insurance

Corporation’s diversity-and-inclusion office. And when the agency needed to hire someone to fill

that role, it declined to reinstate him. Pereira sued the agency under Title VII, arguing, among

other things, that the agency’s decisions to remove and then to not reinstate him were based on his

race, sex, and national origin, and that the latter decision was also motivated by retaliatory animus

for challenging his removal. Defendant moves for summary judgment. For the reasons explained

below, the Court will grant the motion and enter judgment for Defendant.

I. Background

Pereira is a white Hispanic man. In mid-2014, he was hired as Director of the Federal

Deposit Insurance Corporation’s (“FDIC”) Office of Minority and Women Inclusion (“OMWI”),

the agency’s Equal Employment Opportunity (“EEO”) office responsible for its diversity-and-in-

clusion program. ECF No. 29-1 ¶ 1. Pereira was hired by Barbara Ryan, a white non-Hispanic

woman, who was the FDIC’s chief operating officer and chief of staff, and who served as Pereira’s

direct supervisor during the relevant time. Id. ¶¶ 2–3. While OMWI Director, Pereira spearheaded

significant restructuring efforts. ECF No. 29 at 7–13. About a year after Pereira was hired, in the fall of 2015, senior FDIC management received

a series of complaints about his leadership and management of OMWI. For example, employees

there reported that:

• “[T]hings are not going well. Segundo does not know or understand the OMWI

programs, is not trustworthy, and creates turmoil among the staff. . . . He uses trickery, manipu-

lates people, pits employees against each other, and threatens staff. . . . Some staff are contem-

plating filing complaints, going to the [Office of Inspector General] or going to Congress.” ECF

No. 29-1 ¶ 4.

• “As the Director of OMWI, Mr. Pereira has created an environment of unfair treat-

ment, discrimination, coercion and retaliation,” id. ¶ 6, including by “intimidation, character as-

sassination, manipulation, and harassment, and how it creates a hostile work environment,” id. ¶ 8.

• “[M]orale, comradery, sense of teamwork has gotten lower or is non-existent” in

OMWI. Id. ¶ 7. 1 See generally id. ¶¶ 4–14, 25–26.

In response, Ryan asked the FDIC’s ombudsman to conduct an informal review—or “pulse

check”—of OMWI. The ombudsman’s subsequent report found leadership and management prob-

lems with Pereira as well as another member of senior management at OMWI, Melodee Brooks.

ECF No. 29-1 ¶ 19. At the start of 2016, based on both the results of the pulse check and her own

observations of Pereira as his direct supervisor, Ryan reassigned Pereira to another executive man-

agement position outside OMWI. Id. ¶ 15. She explained that Pereira’s management had created

1 At times, Plaintiff argues that certain facts are disputed because they lack context or are otherwise unreliable. But the Court treats these facts as undisputed as far as Plaintiff concedes that they in fact occurred. See Mason v. Geithner,

, 143 n.6, 147 nn.14–15, 148 nn.17–18, 154 n.27 (D.D.C. 2011), aff’d,

(D.C. Cir. 2012) (response is “infirm” when the statement is admitted but facts are claimed to be “mischaracterized,” “dis- torted,” or “biased and unfair”).

2 “significant turmoil” in OMWI, and staff harbored a “deep level of mistrust and resentment” to-

ward him. Id. ¶ 18. Moreover, in Ryan’s view, Pereira had not accepted responsibility or acted to

address these issues, which led to an unprecedented number of EEO complaints against him. Id.

As far as Ryan was concerned, Pereira’s management threatened the reputation and functioning of

the FDIC and OMWI. Id.

Ryan appointed Avelino Rodriguez, another white Hispanic man, to take Pereira’s place

on an interim basis. ECF No. 29-1 ¶¶ 16–17. And after the FDIC conducted a more formal survey

of OMWI employees to investigate these concerns with management, in March and April 2016,

Pereira’s reassignment was made permanent. Id. ¶¶ 22–24. In 2018, the OMWI Director position

was filled permanently by Saul Schwartz, a non-Hispanic white man. Id. ¶¶ 31–36. Ryan, who

made the decision, elected not to reinstate Pereira because of her prior concerns about his perfor-

mance as OMWI Director a few years beforehand. Id. ¶ 37. Among the factors Ryan weighed in

making her decision was Pereira’s performance rating of III (on a scale from I to V) that she gave

him on his 2015 managerial performance appraisal. Id. ¶¶ 41–46.

Pereira first brought an EEO complaint in mid-2017, after he had been detailed out of

OMWI on an interim basis. See ECF No. 1 ¶ 2. After Ryan made the decision not to reinstate

him, Pereira brought two more EEO complaints against Ryan and the FDIC. Id. In December

2020, Pereira sued. The FDIC moves for summary judgment. ECF No. 27.

II. Legal Standard

Under the Federal Rules, a court must grant summary judgment “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). “Summary judgment is appropriately granted when, viewing

the evidence in the light most favorable to the non-movants and drawing all reasonable inferences

accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-

3 Islamic Rels. Action Network, Inc.,

(D.C. Cir. 2016).

To survive summary judgment, a plaintiff must “go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate spe-

cific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,

(1986) (internal quotation omitted). Courts “are not to make credibility determinations or

weigh the evidence.” Lopez,

(quoting Holcomb v. Powell,

(D.C.

Cir. 2006)). But the “mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Lopez,

(emphasis omitted) (quoting

Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986)). If the evidence “is merely color-

able, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S.

at 249–50 (citations omitted).

III. Analysis

A. Discrimination

Under Title VII of the Civil Rights Act, federal employers may not discriminate “based on

race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-16(a). “Where, as here, the plain-

tiff has no direct evidence that the adverse employment actions of which she complains were

caused by prohibited discrimination,” the Court applies the McDonnell Douglas burden-shifting

framework. Lathram v. Snow,

, 1088 (D.C. Cir. 2003) (citing McDonnell Douglas

Corp. v. Green,

, 802–05 (1973)). In disparate-treatment cases, a plaintiff’s prima

facie case “consists a showing that ‘(1) [the plaintiff] is a member of a protected class; (2) she

suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference

of discrimination.’” Webster v. U.S. Dep’t of Energy,

(D.D.C. 2017)

4 (quoting Chappell-Johnson v. Powell,

(D.C. Cir. 2006)). 2

If a plaintiff makes a prima facie showing, “the burden ‘must shift to the employer to ar-

ticulate some legitimate, nondiscriminatory reason for the’ adverse action.” Webster,

(quoting McDonnell Douglas,

). If the employer does so, then the burden

shifts back to the plaintiff to show pretext. But “where an employee has suffered an adverse em-

ployment action and an employer has asserted a legitimate, non-discriminatory reason for the de-

cision, the district court need not—and should not—decide whether the plaintiff actually made out

a prima facie case under McDonnell Douglas.” Brady v. Off. of Sergeant at Arms,

(D.C. Cir. 2008) (emphasis omitted). Under those circumstances, “the district court must

resolve one central question: Has the employee produced sufficient evidence for a reasonable jury

to find that the employer’s asserted non-discriminatory reason was not the actual reason and that

the employer intentionally discriminated against the employee on the basis of race, color, religion,

sex, or national origin?”

Pereira claims that Ryan’s decision to remove him as Director of OMWI and not to rein-

state him were motivated by racial and national-origin discrimination. 3 The FDIC has articulated

legitimate, nondiscriminatory reasons for these decisions: Ryan’s view that the turmoil at OMWI

2 The D.C. Circuit recently overruled its prior precedent requiring “objectively tangible harm” for discrimination cases under Title VII, holding that “an employer that transfers an em- ployee or denies an employee’s transfer request because of the employee’s race, color, religion, sex, or national origin violates Title VII by discriminating against the employee with respect to the terms, conditions, or privileges of employment.” Chambers v. District of Columbia,

(D.C. Cir. 2022) (en banc), overruling Brown v. Brody,

(D.C. Cir. 1999). But actionable retaliation claims, at least, “are [still] limited to those where an employer causes ‘ma- terial adversity,’ not ‘trivial harms.’” Black v. Guzman, No. 22-1873 (BAH),

, at *7 (D.D.C. Apr. 24, 2023) (quoting Wiley v. Glassman,

(D.C. Cir. 2007)) (alteration in original). Pereira’s retaliation claim is addressed below. 3 Pereira has abandoned any claim that he suffered discrimination because of his sex.

5 was due, at least in part, to Pereira’s management, and that Pereira had not accepted responsibility

or acted to address the problems he helped create. ECF No. 29-1 ¶ 17. The FDIC is entitled to

summary judgment on these claims because Pereira has not produced sufficient evidence to show

that the FDIC’s proffered reason was a pretext, and that the real reason was discriminatory.

Pereira, for this part, first tries to shift the blame for the problems at OMWI to Brooks, and

to hold her up as a comparator, to show that Ryan unlawfully discriminated against him. Pereira

asserts that even before he arrived at OMWI, there were problems there caused by Brooks, who

was then the acting Director. ECF No. 29 at 6. Yet, Pereira argues, Ryan “fully supported”

Brooks. Id. at 6; see ECF No. 29-4 ¶ 2. Pereira attributes this support to the fact that Brooks is

black. ECF No. 29 at 2. Thus, he asserts, because of support from Ryan, after Pereira arrived at

OMWI, Brooks remained there as senior deputy director and could continue to cause the same

problems, for which Ryan unfairly blamed him. Id. at 7–9; see ECF No. 31-2 at 4. Pereira also

suggests that Brooks “instigated a campaign to undermine and ultimately oust” him from the role

to replace him. ECF No. 29 at 30. Finally, Pereira says, Brooks was not removed from OMWI at

the same time as Pereira; it was almost another year before Ryan removed Brooks from her post

there, only to reinstate her after her EEO complaint was resolved. ECF No. 27-31 at 4–8.

The evidence supporting these theories is not enough to show pretext or that Ryan discrim-

inated against Pereira based on his race and national origin, either in removing him or failing to

reinstate him. Most obviously, there is no evidence that Ryan harbored any bias against Pereira

based on his race or national origin. To the contrary: at first, Ryan replaced Pereira with another

white Hispanic man, the demographic against whom she was purportedly biased. ECF No. 29-1

¶¶ 16–17. More importantly, it was Ryan herself who made great efforts to hire Pereira for the

role, barely a year beforehand, in the first place. Because “it would be odd to select [him] and then

6 immediately start ginning up reasons to dismiss [him],” “it is difficult to impute to” the same per-

son “an invidious motivation that would be inconsistent with the decision to hire.” Vatel v. Alli-

ance of Auto. Mfrs.,

(D.C. Cir. 2011). 4

Pereira’s suggestions that Brooks was the cause of all the problems at OMWI or that Ryan’s

comparative treatment of her evinces discrimination against him get him nowhere, either. Nothing

about Brooks’ alleged management shortcomings suggest that the separate reasons Ryan had to

replace Pereira were pretextual, especially when those reasons were documented in both the

FDIC’s ombudsman’s pulse check and the later, more formal management report. And to the

extent Pereira simply disagrees with the portion of the blame Ryan assigned to him for the tumul-

tuous state of the office, such a subjective disagreement with his supervisor is of no moment. See

Ey v. Off. of Chief Admin. Officer of U.S. House of Representatives,

(D.D.C. 2013). In addition, even assuming Brooks is an apt comparator to Pereira—even though

Brooks was never hired as Director—Ryan’s treatment of the two hardly supports a claim of dis-

crimination. Indeed, Ryan initially passed over Brooks for the Director job in favor of Pereira.

Like Pereira, Brooks was ultimately removed from OMWI because of Ryan’s concerns about her

management, even if she was eventually reinstated after her own claims of discrimination were

settled. But notably, she was not placed in the Director’s role to which Pereira believes he is

entitled.

Pereira also cites as evidence of discrimination against him Brooks’ comment that she

4 Pereira also argues that Ryan discriminated against him by incorporating negative com- ments into his 2015 managerial performance appraisal but not incorporating the same ones in Brooks’ evaluation. ECF No. 29 at 34. There is no evidence that unlawful discrimination had anything to do the incorporation of these comments. And in any event, both Pereira and Brooks received overall ratings of three out of five, and both appraisals contained negative comments from Ryan. ECF No. 29-1 ¶¶ 42–47. Compare ECF No. 27-20 with ECF No. 27-21.

7 could not “believe that the FDIC [had] selected a Hispanic as the OMWI Director” and a related

comment by another OMWI employee. ECF No. 29-4 ¶ 3; ECF No. 31-2 at 4–5. Pereira claims

that Brooks “instigated a campaign to undermine and ultimately oust” him from the role with hopes

of replacing him. ECF No. 29 at 30. Although he does not say so, in effect Pereira tries to leverage

these statements and Brooks’ supposed actions under a “cat’s paw” theory, in which “the company

official who makes the decision to take an adverse employment action has no discriminatory ani-

mus but is influenced by previous company action that is the product of a like animus in someone

else.” Njang v. Whitestone Grp., Inc.,

(D.D.C. 2016) (citation omitted).

Under such a theory, Pereira needs to show that his “[direct] supervisor perform[ed] an act moti-

vated by [discriminatory] animus . . . intended by the supervisor to cause an adverse employment

action” and that doing so caused the action. See Morris v. McCarthy,

(D.C. Cir.

2016) (citation omitted).

The record here cannot sustain a “cat’s paw” theory because there is insufficient evidence

supporting several links in the chain. To begin, it is not clear that any actions undertaken by

Brooks—Pereira’s subordinate, rather than his supervisor—could support a “cat’s paw” theory.

See Morris,

; Staub v. Proctor Hosp.,

, 422 n.4 (2011). And even if

they could, given that Brooks is not Pereira’s supervisor, Pereira would need to show Ryan “acted

negligently by allowing [Brooks’] acts to achieve their desired effect though [Ryan] knew (or rea-

sonably should have known) of the discriminatory motivation.” McCullough v. Whitaker, No. 14-

cv-296 (RDM),

, at *6 n.1 (D.D.C. 2019) (alteration in original omitted) (quoting

Velazquez-Perez v. Developers Diversified Realty Corp.,

(1st Cir. 2014)). 5

5 Though several Circuits have extended “cat’s paw” liability to the actions of co-workers, not just supervisors, the D.C. Circuit has not weighed in. See McCullough v. Whitaker,

Pereira has not even attempted to make that showing.

Moreover, there is insufficient evidence from which a reasonable jury could conclude that

Brooks caused the tide of complaints against Pereira. On this point, Pereira points only to his own

conclusory allegations, as well as statements by OMWI employees Greg Cofer and Lisa Brown

Jones. 6 Among other things, according to Cofer, Brooks lied to one employee that Pereira “was

trying to get rid of him” in “an effort to undermine Mr. Pereira’s authority in the OMWI staff.”

ECF No. 31-2 at 5. And Jones said that “Brooks manipulated OMWI employees to think nega-

tively against [Pereira] because she wanted the Director position.” ECF No. 31-3 at 5. But none

of this comes close to evidence from which a reasonable jury could conclude that Brooks—as

opposed to the complainants themselves—was responsible for the many complaints against Pereira

made by OMWI staff. True, some complaints were anonymous, but others were signed by OMWI

employees willing to stand by their claims. See, e.g., ECF No. 27-4 at 65–73 (complaints from

OMWI employee regarding Pereira’s “intimidation, character assassination, manipulation, and

harassment, and how it creates a hostile work environment”). And on their face, these detailed

complaints appear to have been based on these employees’ personal observations of Pereira, rather

than anything Brooks said or did, or even misunderstandings that could be attributed to someone

trying to manipulate them. See, e.g.,

at 57–58. Finally, that the FDIC’s ombudsman’s pulse

check and later, its more formal report found problems with Brooks’ management (in addition to

171404, at *6 n.1. Those that have extended it require negligence by the decisionmaker. See, e.g., Velazquez-Perez,

. Cf. Ayissi-Etoh v. Fannie Mae,

(D.C. Cir. 2013) (“To establish liability when a plaintiff is harassed by his or her co-workers, the plaintiff must prove that the employer was at least negligent in not preventing or correcting the harass- ment.”). 6 Pereira also cites a statement of Amy Del Valle that is not included in the record. ECF No. 29 at 30.

9 Pereira’s) undermines Pereira’s assertion that the complaints about OMWI management were

wholly ginned up by Brooks. See ECF No. 30-12 at 1.

Closely connected to Pereira’s argument that these complaints stemmed from Brooks’ cam-

paign against him, he also asserts that they were false, and argues that this too shows that Ryan’s

decision to fire him was pretextual. Of course, a plaintiff can show pretext with evidence that the

reasons the employer gives for a supposedly discriminatory action are false. See St. Mary’s Honor

Ctr. v. Hicks,

, 515–17 (1993). But Pereira fails to show that any of the specific

factual allegations in these complaints—let alone some substantial number of them—were false.

And in any event, setting aside a “cat’s paw” theory of liability, the real question is whether Ryan

genuinely believed that, collectively, those complaints (and her own personal observations) de-

picted a problem with Pereira’s management that justified the actions she took. That is so because

“the issue is not ‘the correctness or desirability of [the] reasons offered . . . [but] whether the em-

ployer honestly believes in the reasons it offers.’” Fischbach v. D.C. Dep’t of Corrs.,

(D.C. Cir. 1996) (alterations in original) (quoting McCoy v. WGN Cont’l Broad. Co.,

(7th Cir. 1992)). Pereira provides no reason to question Ryan’s honest belief

in this regard.

At most, Pereira can point to evidence that undermines one of the specific bases for Ryan’s

decision to remove him: that Pereira had misled her about the number of OMWI employees he had

reassigned. ECF No. 29 at 28–29. While Pereira was Director, Ryan accused him of “being less

than forthright with [her] regarding the number of people [he] reassigned” because, according to

Ryan, he told her that he had reassigned only two people but in fact he had “reassigned more.”

ECF No. 29-4 ¶ 5. Pereira supplies a factual explanation for why this was a misunderstanding,

and why, assuming he is right, Ryan was wrong. ECF No. 29 at 15–17, 29. But at most, this

10 points to a misunderstanding, and Pereira does not explain why all the other reasons behind Ryan’s

decision were false or pretextual, too.

Next, Pereira argues that Ryan’s decision to hire Schwartz as permanent OMWI Director

smacks of discrimination because he was “objectively more qualified” than Schwartz. ECF No.

29 at 31–32. To support such an inference, Pereira needs to show his credentials were “stark[ly]

superior” to that of the successful candidate. Stewart v. Ashcroft,

(D.C. Cir.

2003); see also Holcomb v. Powell,

(D.C. Cir. 2006) (“In order to justify an

inference of discrimination, the qualifications gap must be great enough to be inherently indicative

of discrimination.”). He has not come close to making that showing. The agency provided rea-

soned justifications for hiring Schwartz, including the improvement in OMWI’s functioning while

he was in charge, see ECF No. 27-2 at 30, and Pereira even admits, “I don’t contest [Schwartz’s]

qualifications,” just that “I do not believe his credential and qualifications exceed mine,” ECF No.

27-17 ¶ 24. But merely arguing he is marginally more qualified is insufficient, because courts are

ill-equipped to second-guess an employer’s weighing of the qualifications of competing candidates

without any other evidence of discrimination. See generally Fischbach.,

(The

Court will not “second-guess an employer’s personnel decision absent demonstrably discrimina-

tory motive.” (citation omitted)).

Pereira also says the selection process used to hire Schwartz is evidence of discrimination.

See ECF No. 29 at 32–34. Preselection of one candidate over another may “shed[] light on an

employer’s motivation for a hiring decision.” Oliver-Simon v. Nicholson,

(D.D.C. 2005). But even “if there had been favoritism in [the] selection process, courts have

held that ‘[p]reselection . . . does not violate Title VII when such preselection is based on the qual-

ifications of the party and not on some basis prohibited by Title VII.’” Baylor v. Powell,

Supp. 3d 47, 59 (D.D.C. 2020) (citation omitted).

Even if the process here suggested that Schwartz were favored—even preselected—over

Pereira for the position, that does not suggest unlawful discrimination. The FDIC restricted appli-

cants for the permanent Director position to those who had held it on a permanent or acting basis

for at least one year. ECF No. 29 at 34. In addition, the FDIC issued an “excepted service”

vacancy announcement that allowed attorneys to apply without needing to satisfy certain require-

ments linked to the non-attorney “merit-promotion internal candidates” announcement. Id. at 33.

So both Pereira and Schwartz (the latter of whom was serving as acting Director at the time) were

eligible to apply—and did. See id. at 31. Pereira argues that the OMWI Director position did not

call for legal expertise that justified attorneys, such as Schwartz, being allowed, or even solicited,

to apply. See id. at 33. But even if the “excepted service” announcement were intended to allow

Schwartz to apply, at most a jury could find that the process was crafted to make him eligible, not

to exclude Pereira because of Pereira’s race or national origin. See Kilby-Robb v. Devos,

(D.D.C. 2017) (“[F]avoritism based on criteria other than [race, color, age, or

other protected characteristics] . . . does not violate the federal anti-discrimination laws and does

not raise an inference of discrimination.”) (citation omitted). To repeat, even if Ryan had in fact

preselected Schwartz because of his qualifications, including the job he did as acting Director, that

does not bespeak unlawful discrimination against Pereira.

B. Retaliation

Title VII, likewise, prohibits federal employers from retaliating against an employee for

engaging in protected activities such as filing an EEO complaint alleging employment discrimina-

tion. 42 U.S.C. § 2000e-3(a). In retaliation cases, a plaintiff must show she “engaged in protected

activity, as a consequence of which her employer took a materially adverse action against her.”

12 Taylor v. Solis,

(D.C. Cir. 2009) (citation omitted). As above, without direct

evidence of retaliation, the same McDonnell Douglas burden-shifting framework applies. Lath-

ram, 336 F.3d at 1089 n.3; see Kirkland v. McAleenan, No. 13-cv-194 (RDM),

,

*23 (D.D.C. Dec. 23, 2019). Should the plaintiff satisfy her initial burden, and the employer ar-

ticulates a legitimate, non-retaliatory reason for the adverse action, the burden shifts back to the

plaintiff to show pretext. And in that situation, as with discrimination, “the ‘central question’ left

for the Court to decide is whether ‘the employee produced sufficient evidence for a reasonable

jury to find that the employer’s asserted [legitimate] reason was not the actual reason,’ but a pretext

for unlawful . . . retaliation.” Davis v. Vilsack, No. 17-cv-245 (TJK),

, at *6

(D.D.C. Sept. 18, 2023) (citing Brady,

).

After Pereira was removed from his position as OMWI Director, he filed a series of EEO

complaints with the FDIC, and now argues that the agency’s decision not to reinstate him in that

role was made in retaliation for that protected activity. See ECF No. 29 at 31. But he offers no

evidence beyond what was insufficient to show evidence of discrimination, described above, for a

jury to find that the agency’s explanation for removing him from the Director position and not

reinstating him was pretextual, and that the actual reason was retaliatory. He relies mainly on the

FDIC’s selection of Schwartz as his permanent replacement.

But for the reasons already ex-

plained, nothing about that hiring provides a basis on which a reasonable jury could conclude that

the FDIC was motivated by unlawful discrimination or retaliation. Without more, Pereira’s retal-

iation claim fails alongside his claim of discrimination.

13 IV. Conclusion

For all the above reasons, the Court will grant Defendant’s Motion for Summary Judgment.

A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: February 6, 2024

14