United States Court of Appeals, District of Columbia Circuit
December 11, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01133)
D. Brown argued the cause and filed the briefs for appellant.
Matthew J. Sharbaugh argued the cause for appellees. With him
on the brief were William J. Delany and P. David Larson.
Before: Garland, Chief Judge, Pillard, Circuit Judge, and
Sentelle, Senior Circuit Judge.
PILLARD, CIRCUIT JUDGE
midst of an extensive restructuring at the Office of the
Inspector General for Amtrak, Kathleen Ranowsky was fired
from her job as Deputy Counsel. The new Inspector General,
Tom Howard, ramped up the restructuring project soon after
his appointment; he made changes to several of the
Office's departments and dismissed many of its incumbent
employees. Ranowsky-a woman in her early sixties who had been
a lawyer for the Inspector General for roughly twelve
years-was among those Howard fired during the restructuring.
Howard also fired Ranowsky's immediate supervisor, the
only other employee in the General Counsel's office, the
same day. Howard needed no reason to fire Ranowsky, who was
an at-will employee, but stated that his lack of confidence
in her was the reason for her termination.
claims that her termination was the product of discrimination
based on her age and sex, in violation of the District of
Columbia Human Rights Act (DCHRA), D.C. Code § 2-1401
et seq. She also claims that Amtrak later retaliated
against her for filing her EEO complaint, and that two of its
employees aided and abetted those violations. The district
court denied Ranowsky's motion in limine, which
sought wholesale evidentiary preclusion as a discovery
sanction, then granted summary judgment for the defendants.
Because Ranowsky has not pointed to record evidence from
which a reasonable jury could infer either age or sex
discrimination, and the sanction she sought was unwarranted,
Office of the Inspector General for Amtrak (OIG or Office) is
an autonomous entity within Amtrak created in 1989 with the
mission of providing "independent, objective oversight
of Amtrak's programs and operations." Vision,
Mission, and Authority, Amtrak Office of Inspector
General, https://www.amtrakoig.gov/about-us (last visited
July 31, 2018); Joint App'x (J.A.) 415. An Inspector
General heads the Office, aided by a Deputy. The Office has
historically been organized into five departments: Audit,
Investigation, Evaluations, Administrative Services, and
General Counsel. The Office of General Counsel is the
smallest of those departments, staffed when Ranowsky worked
there only by herself, as Deputy Counsel, and General
Counsel, Colin Carriere, to whom she directly reported. The
Office of General Counsel is the OIG's lawyer, and the
OIG is its only client.
newly-appointed Amtrak Inspector General took charge in 2009,
he began a "transformation effort" to change
OIG's structure and improve its functionality. That
Inspector General hired Tom Howard as his deputy in 2010.
Together, Howard testified, they "began an effort to
correct problems that [they] saw in the office." J.A.
332. Howard himself was appointed Inspector General in
February 2014, after his predecessor's retirement. Howard
continued the transformation effort by implementing major
structural changes, including the widespread dismissal of
employees throughout the Office. "Of the approximately
95 people in place in 2010, less than 30 of them remain[ed]
in the OIG" as of 2015. J.A. 416.
Kathleen Ranowsky is one of the dozens of employees dismissed
from Amtrak OIG during its restructuring. Ranowsky, who had
held her position as Amtrak OIG Deputy Counsel since 2002,
was fired from that job in November 2014. In the process of
restructuring Amtrak OIG, Howard came to believe
"many" of the problems he had identified across the
Office "were the result of inaction or inappropriate
action on the part of the counsel." J.A. 332. Howard
testified that, as soon as he was appointed in February 2014,
he began to consider replacing General Counsel Colin
Carriere, because Howard "wasn't satisfied with the
service that the counsel had been providing." J.A. 331.
Around September or October 2014, Howard added, he
"began to think about what the ramifications would be of
keeping the deputy counsel" if he fired the head
counsel, questioning "how effectively [Deputy Counsel
Ranowsky] would work with a new [head] counsel." J.A.
had formed some reservations about Ranowsky's
work-particularly her communication style and demeanor-
during their shared time at Amtrak OIG. He testified that, in
his view, Ranowsky was not responsive to his needs as client.
Rather than provide direct answers to his requests for legal
advice, Ranowsky would indirectly push back. He recalled, for
instance, that Ranowsky "kept raising obstacles" to
what Howard "wanted to accomplish"-in one
particular case, resisting his efforts to create an
appropriately redacted copy of an investigative document a
congressional committee had requested without ever
"actually tell[ing] [him] that she thought it
shouldn't happen." J.A. 357. Howard testified that
he found Ranowsky's communication style during the
exchange "condescending, belittling, [and] very
flippant," pointing in particular to a statement she
made via email "'to the effect, any fool could
see' the answer to his question." J.A. 267.
deciding whether to retain Ranowsky as the OIG's counsel,
Howard also sought input from the Assistant Inspectors
General who relied on Ranowsky for legal counsel. The
Assistant Inspector General for Audits testified: "I
told [Howard] that I didn't think the quality of [legal]
support was as good as I had experienced in my previous role
as an AIG for audit." J.A. 375. In particular, he
recounted that when he and Ranowsky were working on a memo
together, she circulated the memo without incorporating his
final comments; when the AIG asked Ranowsky why she had done
so, she responded via email that "next time you've
got to get your comments in quicker." J.A. 377. He
testified that Ranowsky's "approach was generally to
ask questions as opposed to provide solutions or give
definitive information." J.A. 380. The AIG for
Investigations similarly testified that Ranowsky was
"[a]lways apprehensive about providing support in
furtherance of what you wanted to do," and instead was
more likely to "give you the negative outcomes of
anything you asked her." J.A. 385.
October 2014, at around the same time that Howard was
reviewing Ranowsky's performance with the Assistant
Inspectors General, he "signed off" without comment
on a positive review that General Counsel Carriere had
conducted of Ranowsky's job performance. J.A. 957-58,
961. Carriere awarded Ranowsky an overall rating of
"exceeded goals," and concurred with Ranowsky's
self-assessment that she was producing helpful work product
and communicating effectively. J.A. 648-50. Ranowsky had
earned a positive performance review the previous year as
well, when based on his own observations and experience
working with Ranowsky, Carriere rated her overall as having
"exceeded goals and modeled Amtrak OIG values."
J.A. 654. Carriere conducted it, but Howard approved that
review too, signing it before Ranowsky received it.
fired Ranowsky just a few weeks after she received her 2014
positive evaluation, on the same day that he fired General
Counsel Carriere. Howard cited "lost confidence" in
Ranowsky's performance as the reason for her termination.
See J.A. 398, 415.
undisputed that Howard alone made the decision to fire
Ranowsky. He did, however, "discuss the processes . . .
to carry out" her termination with Terry Gilmore, the
head of human resources for Amtrak's OIG. While
completing the accompanying paperwork, Gilmore listed
Ranowsky's departure as the result of a "reduction
in force." Howard did not tell Gilmore to designate the
firing a reduction in force. See J.A. 633, 836.
Gilmore said he did so in order to offer Ranowsky a severance
package. See J.A. 451, 453.
after her dismissal, Ranowsky filed a charge with the Equal
Employment Opportunity Commission (EEOC) alleging that her
termination was discriminatory on the bases of age and sex.
Meanwhile, Howard temporarily detailed Nadine Jbaili, a
recent law school graduate then in her twenties who was
working in the OIG's Audit department, to the General