Duncan v. Johnson

213 F.Supp.3d 161

Theodore DUNCAN, Plaintiff,

v.Jeh Charles JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant.

Civil Action No. 14-1642 (ABJ)

United States District Court, District of Columbia.

Signed September 30, 2016

Michael C. Fallings, Morris Eli Fischer, Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Damon William Taaffe, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Theodore Duncan brought this employment discrimination lawsuit against Jeh Charles Johnson, the Secretary of the United States Department of Homeland Security ("the agency" or "DHS"). Plaintiff alleges that DHS violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. ("ADEA"), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), when it discriminated against him based on his age and his gender, and when it retaliated against him in violation of Title VII for engaging in the protected activity of lodging a discrimination complaint. Compl. [Dkt. # 1]. Defendant has moved for summary judgment on all three counts on multiple grounds. Def.'s Mot. for Summ. J. [Dkt. # 14] ("Def.'s Mot."); Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 16-1] ("Def.'s Mem."), and plaintiff has opposed the motion. Pl.'s Opp. to Def.'s Mot. [Dkt. # 20] ("Pl.'s Opp.").¹ After reviewing the entire record, the Court concludes that several of plaintiff's claims have not been properly exhausted, and a few fail for lack of an adverse employment action. The claims that remain fail on the merits.

Plaintiff has come forward with nothing to support his age and gender discrimination claims. His allegations boil down to the fact that the new supervisor who made him miserable was female and younger than he was. But he has presented no evidence that would indicate that her treatment of him was motivated by any sort of discriminatory animus, and indeed, he does not press the point very strongly in his opposition. Even if it is true, as he asserts, that she was not as experienced or as qualified as he was, he certainly cannot complain that she was unfairly or unlawfully elevated to a supervisory position for which he did not even apply. So the Court will grant summary judgment in favor of defendant on the two discrimination counts.

Plaintiff focuses his efforts on the retaliation count, and he demonstrates that he was the subject of a number of disciplinary or potentially adverse actions after he made an EEO complaint. But the evidence of the necessary causal connection is quite thin and attenuated, and more important, plaintiff has failed to meet his burden to produce evidence that would lead a reasonable juror to conclude that the legitimate, non-discriminatory reasons proffered by the defendant for its actions were in fact a pretext for retaliation. So defendant's motion for summary judgment will be granted on the retaliation claims as well.

FACTUAL BACKGROUND

The facts are not in dispute except where noted. Plaintiff, a 56-year-old male, worked as a GS-15 Intelligence Research Specialist at U.S. Immigration and Customs Enforcement ("ICE"), a component of DHS. Def.'s Statement of Material Facts Not in Genuine Dispute [Dkt. # 18-1] ("Def.'s SOF") ¶¶ 1-2; Pl.'s Statement of Material Facts For Which There Is A Material Dispute [Dkt. # 21-1] ("Pl.'s SOF") ¶¶ 1-2. From 2003 onward, plaintiff worked in the Office of Intelligence within the Homeland Security Investigations office, an office that "conducts broad intelligence operations and develops data for use by ICE, [DHS], and other law enforcement partners related to illegal trade, travel, and financial activity." Def.'s SOF ¶¶ 3, 14; Pl.'s SOF ¶¶ 3, 14. Beginning in October 2006, plaintiff served as the Deputy Assistant Director ("DAD") of Intelligence Programs within Homeland Security Investigations. Def.'s SOF ¶ 15; Pl.'s SOF ¶ 15. Plaintiff's official title remained "Supervisory Intelligence Research Specialist," though his "organizational titles" changed numerous times between 2006 and November 2013. Def.'s SOF ¶ 16; Pl.'s SOF ¶ 16.

Plaintiff's Assignment to Work Under the DAD of Analysis

In July 2011, DHS issued a vacancy announcement for the position of Deputy Assistant Director of Analysis, and published the announcement on USA Jobs and through an intelligence community jobs database. Def.'s SOF ¶ 22; Pl.'s SOF ¶ 22; see Ex. 13 to Def.'s Mot. [Dkt. # 18-2] (vacancy announcement).² Plaintiff did not submit an application for the job. Def.'s SOF ¶ 24; Pl.'s SOF ¶ 24. Ultimately, Stephanie Andrews was selected for the position for a term not to exceed one year. Def.'s SOF ¶¶ 25-27, 30; Pl.'s SOF ¶¶ 25-27, 30.³

Meanwhile, in September 2011, Homeland Security Investigations discontinued the project on which plaintiff had been working, and plaintiff was reassigned to the vacant position of Acting Unit Chief of Travel, where he reported to the newly-appointed DAD of Analysis, Andrews. Def.'s SOF ¶¶ 4, 19; Pl.'s SOF ¶¶ 4, 19. At the time, plaintiff had been working in Baltimore, but with the October 2011 reassignment, he was required to work in Washington, D.C. See Def.'s SOF ¶¶ 17, 20; Pl.'s SOF ¶¶ 17, 20.

Because Ms. Andrews's appointment as DAD of Analysis was limited to a 12-month term, ICE advertised for the DAD of Analysis position again in July of 2012, this time describing the position as "Full Time-Permanent." Ex. 13 to Def.'s Mot. at 102. Plaintiff did not apply for the position that time either. Def.'s SOF ¶ 32; Pl.'s SOF ¶ 32. Ms. Andrews was selected again, and she became the permanent DAD of Analysis in November 2012. Def.'s SOF ¶¶ 33-34; Pl.'s SOF ¶¶ 33-34. Plaintiff served as Acting Unit Chief of Travel from October 2011 through February of 2013. Def.'s SOF ¶ 4; Pl.'s SOF ¶ 4.

The April 2012 Letter of Counseling and Mid-Cycle Performance Appraisal

Plaintiff failed to attend a meeting on April 2, 2012, and he explained that he missed the meeting because he was taking a personal telephone call. Def.'s SOF ¶¶ 42-43; Pl.'s SOF ¶¶ 42-43. On April 30, 2012, after plaintiff arrived late to three other meetings, and after Andrews consulted with the ICE office of Employee and Labor Relations ("ELR"), and the Office of the Principal Legal Advisor ("OPLA"), Andrews issued plaintiff a letter of counseling relating to his "ongoing failure to attend and be on time for scheduled meetings and training and for unprofessional behavior." Def.'s SOF ¶¶ 40-41, 47-48; Pl.'s SOF ¶¶ 40-41, 47-48. The letter explained that plaintiff was late for three meetings, and missed another meeting entirely. Def.'s SOF ¶ 41; Pl.'s SOF ¶ 41; Ex. 16 to Def.'s Mot. [Dkt. # 18-2] at 126-28. The letter was not placed in plaintiff's official personnel folder, but the agency informed him that it could "be relied upon if similar incidents of the same nature occur again." Ex. 16 to Def.'s Mot. at 127. Plaintiff maintains that his need to take a personal call should have excused him from the April 2 meeting, and that the letter of counseling was an improper overreaction. Def.'s SOF ¶¶ 45-46; Pl.'s SOF ¶¶ 45-46.

On the same day that the letter of counseling was delivered, Andrews also issued a mid-cycle appraisal of plaintiff's work performance, which covered the period of November 10, 2011 through April 15, 2012. Def.'s SOF ¶ 50; Pl.'s SOF ¶ 50; Ex. 17 to Def.'s Mot. [Dkt. # 18-2] at 47-71. The mid-cycle review is used by supervisors to discuss the performance of their direct reports. Def.'s SOF ¶¶ 54-55; Pl.'s SOF ¶¶ 54-55. The appraisal, which was drafted with input from ELR and OPLA, noted that plaintiff was not meeting his performance standards, and that his performance was "unacceptable in several core competencies." Ex. 17 to Def.'s Mot. at 146. Plaintiff prepared a written response to the mid-cycle appraisal; he admitted that many of the events cited had occurred, but he attempted to provide excuses for each event, and he argued that the facts did not justify the conclusion that his behavior was unacceptable or unprofessional. Def.'s SOF ¶ 56; Pl.'s SOF ¶ 56; Ex. 18 to Def.'s Mot. [Dkt. # 18-2].

The May 10, 2012 Performance Improvement Plan

On May 10, 2012, Andrews issued plaintiff a Performance Improvement Plan. Ex. 19 to Def.'s Mot. [Dkt. # 18-2] ("PIP") at 176-96. The PIP "outline[d] activities that [plaintiff] must complete to attain at least an achieved expectations rating on the critical elements in which [his] performance ha[d] fallen to an unacceptable level," and it gave him sixty calendar days to do so. Id. at 176-77. On July 13, 2012, Andrews notified plaintiff that he had failed the PIP, Def.'s SOF ¶ 63; Pl.'s SOF ¶ 63, but no adverse action was taken against him as a result. Def.'s SOF ¶ 64; Pl.'s SOF ¶ 64.⁴

Plaintiff's Suspensions

The agency's procedures for suspending employees.

In determining how to discipline its employees, DHS utilizes the "Policy on Discipline and Adverse Action Operating Procedures" ("DAAOP"). Def.'s SOF ¶ 74; Pl.'s SOF ¶ 74; Ex. 24 to Def.'s Mot. [Dkt. # 18-2] (attaching a copy of the DAAOP). The process beings when a manager refers a conduct issue to the Employee and Labor Relations department. See Ex. 24 to Def.'s Mot. at 234. ELR then makes a presentation to a panel of three GS-15 employees, one from Homeland Security Investigations, one from Enforcement and Removal Operations, and one from Management and Administration, which the parties refer to as a "DAAP Panel." Def.'s SOF ¶¶ 74-76; Pl.'s SOF ¶¶ 74-76. After the presentation, the panel members come to a consensus agreement on the discipline to be imposed, and they provide the employee with their recommended sanction. Defs SOF ¶ 76; Pl.'s SOF ¶ 76. The employee is then given a chance to respond to the recommended sanction. See Ex. 24 to Def.'s Mot. at 229. Finally, "[t]he Deciding official ... reviews the charges in the proposal notice, the...