United States Court of Appeals, District of Columbia Circuit
Elisa R. Cruz, Appellant
Kevin K. McAleenan, Acting Secretary of the U.S. Department of Homeland Security, Appellee
December 10, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cv-00039)
L. Miller argued the cause and filed the briefs for
L. Rogers, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: Griffith and Wilkins, Circuit Judges, and Williams,
Senior Circuit Judge.
WILKINS, CIRCUIT JUDGE
Cruz alleges that the Department of Homeland Security (DHS)
engaged in discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (Title VII). DHS filed a motion for
summary judgment, which the District Court granted over
Cruz's objection and request to take discovery. Cruz
appeals the District Court's order granting summary
judgment to DHS and denying Cruz's motion to stay
proceedings to allow for discovery under Federal Rule of
Civil Procedure 56(d). For the reasons set forth below, we
reverse the order in large part and remand for further
we are reviewing the District Court's grant of summary
judgment, we take the following facts from the evidence and
read them in the light most favorable to Cruz, the non-moving
party, drawing all reasonable inferences in her favor.
See, e.g., Ortiz-Diaz v. Dep't of Hous.
& Urban Dev., Office of Inspector Gen., 867 F.3d 70,
72 (D.C. Cir. 2017).
an African-American female of Hispanic national origin, was
employed from 2007 to 2012 within DHS as the Chief
Information Security Officer (CISO) at the Federal Emergency
Management Agency's (FEMA) Office of the Chief
Information Officer (OCIO). The head of OCIO and Cruz's
second-level supervisor was Jeanne Etzel, a white woman. The
Deputy Chief Information Officer for Administration and
Cruz's direct supervisor was Maria Roat, also a white
early January 2012, Don Buskard, one of Cruz's colleagues
and a white man, sent Etzel an email reporting that Cruz had
behaved inappropriately during three meetings. Etzel
forwarded the email to Roat and asked her to investigate
Buskard's allegations. Roat enlisted Human Resources to
discuss the allegation and "requested assistance in
determining if a reassignment would be warranted." J.A.
216. Reassignment would serve the purpose of limiting
Cruz's supervisory duties without changing her salary
grade. Human Resource Specialist Kirsten Gunsolus advised
Roat on how to proceed. In an email to Roat dated January 4,
2012, Gunsolus wrote:
[G]iven the fact that there are conduct issues regarding Ms.
Cruz, I would suggest that I conduct a fact finding session
and gather all the documentation surrounding her conduct
issues during the past year that you have gathered, and then
I would make a recommendation for the reassignment to you
from the [Labor and Employee Relations] office. That way, if
Ms. Cruz decides to pursue any legal avenues, you'd have
that documentation and recommendation as backup for the
the next few weeks, Gunsolus began a "limited
administrative inquiry" into allegations of Cruz's
workplace conduct. J.A. 216. In addition to interviewing
several of Cruz's colleagues, Gunsolus reviewed emails
from Cruz to various people, meeting notes, and the report of
a previous investigation concerning Cruz. Gunsolus's
report notes that "none of [Cruz's] employees,
except one that [did not] have much interaction with
her" wanted to participate in the ...