Marquez-Marin v. AG of the US, et al. 05-DS-247-SM 11/08/06 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carmen Marquez-Marin, Plaintiff

v. Civil No. 05-ds-247-SM (NH) Civil No. 05-CV-1619-HL (PR) Opinion No.

Alberto Gonzales. Attorney General of the United States; and Humberto '"Bert" Garcia. U.S. Attorney for the Dist. of Puerto Rico. Defendants

O R D E R

Carmen Marquez-Marin is a former Assistant United States

Attorney ("AUSA") for the District of Puerto Rico, who brought

this three count action claiming her employment was wrongfully

terminated and saying she was the victim of unlawful

discrimination. By prior order, the court dismissed her claims

against Humberto "Bert" Garcia (counts two and three). What

remains, then, is a single official capacity claim against

Alberto Gonzales, the Attorney General of the United States, in

which Marquez alleges that she was the victim of both gender and

national origin discrimination. See generally Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.1 Given the

nature of Marquez's claim, the defendant shall be referred to as

the Department of Justice ("DOJ").

The DOJ moves for summary judgment, asserting that Marquez's

employment was terminated for entirely non-discriminatory reasons

and, therefore, says it is entitled to judgment as a matter of

law. Marquez objects. For the reasons set forth below, the

DOJ's motion for summary judgment is denied.

Standard of Review

When ruling on a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griqqs-Rvan v. Smith.

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals "no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In this context, "a fact is

'material' if it potentially affects the outcome of the suit and

1 Pursuant to 42 U.S.C. § 2000e-16(c), Marquez brings this action against Attorney General Gonzalez in his official capacity, as head of the governmental agency that formerly employed her.

2 a dispute over it is ■'genuine' if the parties' positions on the

issue are supported by conflicting evidence." Intern'l Ass'n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

Nevertheless, if the non-moving party's "evidence is merely

colorable, or is not significantly probative," no genuine dispute

as to a material fact has been proved, and "summary judgment may

be granted." Anderson v. Liberty Lobby. Inc..

, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the non­

movant's ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore bald

assertions, unsupported conclusions, and mere speculation. See

Serapion v. Martinez.

(1st Cir. 1997).

Background

While the reason(s) for her discharge are very much

disputed, the parties generally agree on the details of Marquez's

employment history. She began working as an AUSA in the United

3 States Attorney's Office for the District of Puerto Rico on

December 16, 2001, under a temporary 14-month appointment. After

completion of her background investigation, Marquez's temporary

appointment was converted to a non-temporary excepted service

AUSA appointment, subject to a two-year "trial period," during

which her employment could be terminated without cause or right

to appeal.

During the first year of her employment, Marquez enjoyed her

work and received positive comments on her performance. In mid-

2002, Humberto "Bert" Garcia was appointed as the new United

States Attorney for the District of Puerto Rico. Shortly

thereafter, Garcia named AUSA David Rivera as head of the

narcotics division, with supervisory authority over Marquez.

Marquez says that within a short period of time, a "boys' club"

developed, in which Rivera and other male AUSAs (many of them

non-natives of Puerto Rico) would gather to the exclusion of

female AUSAs. Marquez also says that, although he was her direct

supervisor, Rivera refused to take telephone calls from her and

another female AUSA, and often spoke disparagingly of native

Puerto Ricans.

4 In 2003, Marquez came to believe that there were substantial

differences in the salaries that were being paid to various AUSAs

in the office, with preference being given to men, particularly

those who were from the states, rather than Puerto Rico. Marquez

told her superiors of her concerns and spoke with Garcia, among

others. She also expressed her concern that she was being

subjected to disparate and often demeaning treatment, at least in

part, as a result of the "boys' club" atmosphere in the office.

Eventually, Marquez voiced her concerns to the office's equal

employment opportunity contact person. She also spoke with the

office's sexual harassment contact person. She says none of the

issues she raised was addressed in a meaningful way.

In August of 2003, Rivera gave Marquez a progress review, in

which he advised her that she should devote more time and effort

to improving the quality of her writing, the timeliness of her

submissions, and the quality of her efforts to solve problems

before presenting them to her supervisors. Marquez took issue

with Rivera's comments, refused (at that time) to sign her

performance evaluation, and asked for a transfer to the white

collar unit. Later, in November of 2003, Rivera wrote a "memo to

file" describing what he perceived to be Marquez's hindrance of

the office's prosecution of operation "Grand Slam."

5 Subsequently, however, Marquez received national recognition from

the Department of Justice for her role in successfully

prosecuting that case.

In February of 2004, the United States Attorney's Office was

evaluated by the Evaluation and Review Staff of the Executive

Office of the United States Attorneys ("EARS"). Marquez says she

and other female AUSAs spoke candidly in their EARS interviews

about both gender and national origin discrimination that

pervaded the office and what they perceived to be disparate

treatment directed at them. Very shortly thereafter, on February

11, 2004, all four female AUSAs were transferred to other

sections within the office. Marquez says she was transferred to

violent crimes - a unit to which she had specifically asked not

to be assigned. Not surprisingly, she says her transfer

(although it did not involve a reduction in pay) was punitive and

in response to her earlier complaints about discriminatory

treatment.

In March of 2004, Marquez received a performance appraisal

for the year 2003. She was rated as "meets to exceeds

expectations" in all five critical performance elements, as well

as overall. Nevertheless, on April 1, 2004, she filed a formal

6 grievance, challenging her employment evaluation and requesting

that her rating be upgraded from "meets to exceeds expectations"

to "substantially exceeds" expectations," presumably because of

her exceptional work on project Grand Slam. Meanwhile, she says

Rivera began exploring means by which to terminate her

employment. In support of that view, she points to the "memo to

file" Rivera drafted in November of 2003, using what Marquez

alleges is false and disparaging language to describe her job

performance. Then, in the wake of her April 1 grievance, Marquez

says Rivera drafted the DOJ's official response (using language

similar to that in his "memo to file") and placed another

employee's signature on that response, without the employee's

knowledge.

In May of 2004, approximately one month after Marquez filed

her grievance, the DOJ began the process of taking formal

personnel action against Marquez, including terminating her

employment. On June 25, 2004, Marquez contacted an Equal

Employment Opportunity counselor at the Executive Office for

United States Attorneys, complaining of gender-based and national

origin discrimination. Approximately six weeks later, by letter

dated August 4, 2004, U.S. Attorney Garcia proposed that Marquez

be removed from her position within thirty days after presenting

7 her with a termination letter. Subsequently, he decided to

expedite that process because, in his view, things were getting

worse, not better, with regard to Marquez's performance and

attitude.

On August 27, 2004, Marquez was issued a letter of

termination, which explained that her employment was terminated

because of misconduct, a pattern of dishonesty, and a pattern of

non-compliance with established internal policies and/or the law.

Marquez points out that, within the year, the U.S. Attorney

determined that another AUSA should not be retained. He,

however, was afforded the opportunity to resign because,

according to the DOJ, he did not have an attitude or discipline

problem like Marquez. She points to the allegedly disparate

treatment of that AUSA - an AUSA she suggests was similarly

situated to her - as further evidence that she was subjected to

unlawful discrimination.

Discussion

I. Title VII and Gender-Based Discrimination- The Analytical Framework.

Title VII of the Civil Rights Act of 1964 (as amended) makes

it unlawful for employers "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment because of such individual's race,

color, religion, sex, or national origin." 42 U.S.C. § 2000e-

2(a). In cases such as this, where there is little overt

evidence of gender-based discrimination, courts typically employ

the burden-shifting framework articulated by the Supreme Court in

McDonnell Douglas Corp. v. Green.

(1973). See also

Carev v. M t . Desert Island Hosp.,

(1st Cir.

1998) .

The Court of Appeals for the First Circuit has summarized

the McDonnell Douglas burden-shifting paradigm as follows:

Under this formulation, a plaintiff opens with a prima facie showing of certain standardized elements suggestive of possible discrimination. ic ic ic

Establishment of the prescribed prima facie case creates a presumption that the employer engaged in impermissible [gender] discrimination. However, to rebut this presumption, the employer need only articulate a legitimate nondiscriminatory reason for the employee's termination. The employer's obligation is simply one of production. The burden of persuasion remains the employee's at all times.

9 LeBlanc v. Great American Ins. Co.,

(1st Cir.

1993) (citations and internal quotation marks omitted).

So, under the McDonnell Douglas paradigm, if the plaintiff

establishes a prima facie case of discrimination, the burden

shifts to the employer, which must articulate a legitimate, non­

discriminatory justification for the adverse employment action

taken against the plaintiff. If the defendant succeeds in

carrying that burden of production, the burden of proof remains

with the employee, who must demonstrate that the reason

articulated by the employer was a mere pretext for unlawful

gender discrimination. See St. Mary's Honor Center v. Hicks.

(1993). See also LeBlanc.

. To

carry that burden, the employee must produce "not only minimally

sufficient evidence of pretext, but evidence that overall

reasonably supports a finding of discriminatory animus."

(citation and internal quotations omitted). He or she "may

not simply refute or question the employer's reasons. To defeat

summary judgment at this stage, a plaintiff must produce evidence

that the real reason for the employer's actions was

discrimination." Gadson v. Concord Hosp..

(1st

Cir. 1992) .

10 II. Summary Judgment is not Appropriate.

Marquez has satisfied her obligation at step one of the

McDonnell Douglas paradigm; she has set forth sufficient factual

allegations to establish a prima facie claim the she was

subjected to unlawful discrimination. In response, the DOJ has

proffered a legitimate and non-discriminatory basis for its

decision to terminate her employment: misconduct, a pattern of

dishonesty, and a pattern of non-compliance with established

internal policies and/or the law. Thus, the burden remains with

Marquez to demonstrate that there are genuinely disputed facts

which, if credited by a trier of fact, would support her

assertion that the DOJ's proffered explanation is merely a

pretext for unlawful discrimination. She has carried that

burden.

In response to the DOJ's assertion that Marquez's employment

was terminated because she had engaged in misconduct, a pattern

of dishonesty, and a pattern of non-compliance with established

internal policies and/or the law, Marquez has pointed to evidence

which, if credited as true by the trier of fact, demonstrates the

following. First, Marquez did not engage in a "pattern" of

dishonesty or misconduct. The DOJ uses the term "pattern" to

suggest that Marquez's inappropriate conduct was widespread and

11 routine. But, in support of that position, the DOJ points to

only isolated events. Of course, Marquez might well have engaged

in a "pattern of misconduct." Then again, perhaps she did not.

At this juncture, however, based on the record currently before

the court, the DOJ has not supported its claim that Marquez

customarily engaged in undesirable or inappropriate conduct.

The sole incident involving potential dishonesty cited by

the DOJ relates to the inadvertent disclosure of grand jury

transcripts by Marquez's secretary and a perception by First

Assistant U.S. Attorney Rodriguez that Marquez was "dishonest"

about her role in that disclosure and tried to avoid

responsibility by blaming her secretary. But, the evidence

provided by Marquez clearly shows that it was the secretary (not

Marquez) who made the inadvertent disclosure. Marquez also

testified in her deposition that she specifically told her

secretary that the grand jury transcript was to be sent only to

the judge, for in camera review, and defense counsel was not to

be given a copy. Rather than attempting to divert "blame" for

the unintentional disclosure to her secretary, Marquez wrote a

memo to a supervising AUSA explaining that both she and her

secretary had been working under a great deal of pressure and

12 said that the secretary was very competent in handling the

workload of three extremely busy AUSAs.

Marquez's evidence also shows that, upon learning of her

secretary's inadvertent disclosure of the grand jury transcripts,

she immediately filed a motion seeking that the transcript be

returned (which the court granted) and contacted the confidential

informant (whose identity had apparently been revealed in the

transcript) to see if she was concerned and/or wanted federal

protection or to be relocated. The witness responded that she

was neither concerned nor fearful.

As to the alleged "pattern of non-compliance" with internal

policies and/or the law, the DOJ again points to a single event:

Marquez's alleged failure to comply with office expense

procedures before ordering a copy of a grand jury transcript.

Marquez, however, says that when the stenographer asked her if

she was going to need a copy of the transcript, she responded

"yes," and said she believed it was "essential." Apparently,

based on that conversation, the stenographer made a copy of the

referenced transcript and left it on Marquez's desk. When her

supervisors discovered that the transcript had been produced

without prior authorization, they apparently considered Marquez

13 to have violated internal policy. Marquez, however, says she did

not "order" a copy of the transcript prior to obtaining

authorization to do so, nor did she believe that her response to

the stenographer's question could have reasonably been

interpreted as an official request for a copy of that transcript.

Again, if Marquez's plausible explanation is accepted, a

reasonable trier of fact could conclude that she did not

knowingly or intentionally violate internal policies, she

certainly did not engage in any "pattern" of repeated violations

of such policies, and the DOJ very well knew it. Consequently,

the trier of fact might also supportably conclude that the DOJ's

proffered explanations for her dismissal are little more than a

pretext for what Marquez says was the true motivation: unlawful

discrimination.

Marquez has also pointed to evidence establishing that her

internal job performance ratings were consistently high and,

despite claims that she somehow "hindered" the office's

prosecution of project "Grand Slam," she actually revived a

neglected and stagnant prosecution that had lingered for over

three years prior to her involvement, and she ultimately received

national recognition for her superior work on the case. She has

14 also pointed to sufficient circumstantial evidence to suggest

that the “memo to file" prepared by AUSA David Rivera, her

allegedly undesirable internal transfer, and, ultimately, the

decision to terminate her employment, were either the product of

gender or national origin discrimination or constituted a

retaliatory response to her complaints about gender-based and

national origin discrimination.

Conclusion

At this juncture, Marquez need not prove her discrimination

claims. Instead, she need only demonstrate that there are

genuinely disputed material facts which preclude entry of

judgment as a matter of law in favor of the DOJ. She has done

so. Accordingly, for the foregoing reasons, as well as those set

forth in plaintiff's memorandum, defendant's motion for summary

judgment (document no. 20) is denied.

SO ORDERED.

Steven J./McAuliffe Chief Judge November 8, 20 06

cc: Judith Berkan, Esq. Mary Jo Mendez-Vilella, Esq. Carole M. Fernandez, Esq. Clerk of the U.S. District Court District of Puerto Rico

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