Townsend v. United States, Civil Action No. 15-1644 (BAH)

MARK WILLIAM TOWNSEND, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Civil Action No. 15-1644 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 27, 2019

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

This four-year-old age-discrimination case concerns a job reassignment that lasted four days and did not take full effect until just hours before the plaintiff, Mark William Townsend, was escorted from the building and ultimately terminated due to his role in a multi-year time-and-attendance fraud against his former employer, the United States Environmental Protection Agency ("EPA"). The plaintiff initiated this action against the EPA, the United States Department of Justice ("DOJ"), and the United States of America (collectively, the "agency defendants"), and ten current and former employees of the EPA and DOJ (collectively, the "individual defendants"). After twenty of the twenty-one counts in a 174-paragraph complaint against the agency defendants were dismissed for failure to state a claim on which relief could be granted, see Townsend v. United States ("Townsend I"), 236 F. Supp. 3d 280, 326 (D.D.C. 2017), the plaintiff was granted partial leave to amend his complaint, see Townsend v. United States ("Townsend II"), 282 F. Supp. 3d 118, 133 (D.D.C. 2017), leaving, after the opportunity of more than one year of discovery, two claims at issue. In Count I of his Second Amended Complaint ("SAC"), ECF No. 66, the plaintiff alleges that he was constructively demoted due to disparate treatment age discrimination and, in Count II, he alleges a "pattern or practice" of age-based disparate treatment, both in violation of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. See SAC ¶¶ 48-75.

Count I is predicated on the plaintiff's allegation that his "putative supervisor," Dr. Tala Henry, "illegally pressured the plaintiff [to accept a new position] by telling him to 'step aside' . . . in order to make room for 'younger' employees." Townsend I, 236 F. Supp. 3d at 300 (some internal quotation marks and citations omitted).¹ Count II is predicated on allegations naming three individuals whom the plaintiff alleges were subject to age discrimination as part of the same reorganization leading to the plaintiff's reassignment. See Townsend II, 282 F. Supp. 3d at 128. Although the plaintiff's evidence on this claim was deemed "thin," id., his "new allegations about older employees [were] sufficient to nudge [his] claim into the realm of the plausible by alleging 'something more than an isolated, sporadic incident,'" id. (quoting Int'l Bhd. of Teamsters v. United States ("Teamsters"), 431 U.S. 324, 336 n.16 (1977)).

The defendants now seek summary judgment, under Federal Rule of Civil Procedure 56(a), see Defs.' Mot. Summ. J. ("Defs.' MSJ"), ECF No. 73, contending that, as to Count I, the plaintiff neither suffered an adverse employment action nor can show that age was a factor in his reassignment, and as to Count II, the plaintiff has not demonstrated that age discrimination wasEPA's "standard operating procedure," id., Ex. 1, Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mem.") at 2, ECF No. 73-1.² For the reasons explained below, the defendants' motion is granted.

I. BACKGROUND

The plaintiff is a Caucasian male who began working at the EPA in 1980 and was over the age of 40 when the internal EPA reorganization prompting this suit transpired. Defs.' MSJ, Ex. 2, Defs.' Statement of Material Facts ("Defs.' SMF") ¶ 1, ECF No. 73-2; id., Ex. 7, Dep. of Mark Townsend ("Pl.'s Dep.") at 44, ECF No. 73-7.³ During his time at the EPA, the plaintiff "shuffled" among divisions as the agency periodically reorganized and consequently he worked in various positions with responsibility for a number of office-wide duties. Pl.'s Dep. at 10-38, ECF No. 73-7 (plaintiff agreeing "[i]t was not unusual to see reorganizations across EPA" and expressing the view that "all [reorganizations] are is a shuffling, all they are is a political game, the shuffling. The staff, once again, do[es] exact[ly] the same work, their assignments do not change. . . . [t]he roles and responsibilities for the people on the teams don't change"); see also Defs.' Mem. at 1 ("As with many federal agencies over the years, EPA's internal structure has changed several times through reorganization of its offices.").⁴ From December 2005 until the alleged adverse employment action on July 27, 2014, the plaintiff served as SupervisoryBiologist (Branch Chief), a GS-15 position, in the High Production Volume Chemicals Branch ("HPVCB") of the Risk Assessment Division ("RAD") of the EPA's Office of Pollution Prevention and Toxics. Defs.' SMF ¶¶ 2, 4; Pl.'s Dep. at 20, ECF No. 73-7. The plaintiff describes this position as "mid-level management." Pl.'s Dep. at 20, ECF NO. 73-7.

A. Reorganization Begins in 2013 and Eventually Dissolves Plaintiff's Branch

Starting in 2013, the EPA's Office of Pollution Prevention and Toxics ("OPPT"), of which the plaintiff's Branch and Division were a part, began the process of reorganizing. Defs.' SMF ¶ 4; Defs.' MSJ, Ex. 3, Decl. of Tala Henry ("Henry Decl.") ¶¶ 4-13, ECF No. 73-3. During March and April 2013—while the plaintiff was already under investigation for time-and-attendance fraud, see Townsend I, 236 F. Supp. 3d at 291-93—he discussed with his supervisor, Dr. Jeffery Morris, then the acting Director of the RAD, the plaintiff's vision for the reorganization. Defs.' SMF ¶ 3; Defs.' Mem. at 3; Defs.' MSJ, Ex. 5, Decl. of Jeffery T. Morris ("Morris Decl.") ¶¶ 2-4, ECF No. 73-5. In a March 27, 2013 meeting, Dr. Morris claims that the plaintiff proposed that his branch, the HPVCB, "be dissolved and subsumed into other RAD branches," and that the plaintiff "be reassigned from Branch Chief to a RAD immediate office position." Morris Decl. ¶ 4. Later that same day, Dr. Morris received a follow-up email from the plaintiff, which Dr. Morris says "reiterated [plaintiff's] proposal." Id. (citing Ex. A to Morris Decl., Email from Plaintiff to Jeffery Morris, dated March 27, 2013 ("Mar. 2013 Email") at 1, ECF No. 73-6)). The plaintiff's email opens by referring to "our early morning conversation" and indicates that the purpose of the email is "to clarify and probably commit myself." Mar. 2013 Email. The plaintiff suggests that RAD be reorganized into three branches, with "[o]ne focused on PMNs," and "two focused on generic support for toxic chemical review," id.; Morris Decl. ¶ 4 (noting that "'PMNs' stands for pre-manufacture notices and relates to the EPA'sresponsibility to review chemicals before they are manufactured and enter commerce in the United States"), and the email contains the plaintiff's recommendations as to both the positions needed and employees to fill various roles, Mar. 2013 Email. The closing sentence states, regarding the plaintiff's own role: "Deputy BC [for Branch Chief]—nope. Deputy DD [for Division Director] and sadly, I have suites [sic] and shirts and dress shoes and even scads of ties. I can be pretty when necessary." Id.⁵ In other words, the plaintiff's "nope" indicates his rejection of maintaining his then-position as a Branch Chief and preference, though "sadly," for a more senior position as Deputy Division Director.

A few weeks later, on April 11, 2013, the plaintiff again wrote Dr. Morris about "perceiv[ing] a significant proposal towards changing [plaintiff's] role and responsibilities" and requesting "a written proposal regarding when (date) [his] current responsibilities will cease and new role will begin." Ex. B to Morris Decl., Email from Plaintiff to Jeffery Morris, dated April 11, 2013 ("Apr. 2013 Email") at 5, ECF No. 73-6. The plaintiff goes on to acknowledge that he is to become a "Special Assistant in the Immediate Office of the Risk Assessment Division," a position that "does not currently exist." Id.

Dr. Morris understood the plaintiff's recommendation as proposing that his branch, HPVCB, "be dissolved and subsumed into other RAD branches," and that the plaintiff "be reassigned from Branch Chief to a RAD immediate office position." Morris Decl. ¶ 4. Since this was the reassignment that the plaintiff now challenges, the defendants contend this "fact [] casts doubt on his subsequent contention that the reassignment was somehow discriminatory and adverse." Defs. Mem. at 11. The plaintiff disputes that, in his communications with Dr. Morris,he proposed to eliminate his own Branch or asked to be reassigned to the RAD Immediate Office. Pl.'s Opp'n Defs.' Mot. Summ. J. ("Pl.'s Opp'n") at 7-9, ¶¶ 2, 4-7, 9, 14, ECF No. 74-1; id., Ex. 4, Dep. of Mark Townsend ("Pl.'s Dep.") at 3-4, 6-15, ECF No. 74-4.⁶ When confronted with his March 2013 email to Dr. Morris, the plaintiff back-tracked, claiming that he "clarified in later emails" what he meant, and that the March 2013 email was an "off-the-cuff response that [he] disagreed with [Dr. Morris]" and that he "was trying to be polite." Pl.'s Dep. at 9, ECF No. 74-4. He concedes, however, that the email never said whether he "agreed . . . or disagreed with [Dr. Morris]" but rather "asked lots of questions about what was going through his mind and gave him information about [himself] and the organization." Id. at 10. He also stated that he "disagreed [with Dr. Morris] in person in public" and "did not think [he] needed to repeat that in writing." Id. at 11.⁷

When the reorganization ultimately took shape, the number of OPPT Divisions was reduced from seven to six. Defs.' SMF ¶ 5; Henry Decl. ¶ 4. OPPT's RAD remained, but all four branches within it, including the plaintiff's, were dissolved and reincorporated, along withstaff from two branches of a division that had been eliminated, into five new, multidisciplinary branches, affecting a total of 80 positions. Defs.' SMF ¶¶ 5-6; Henry Decl. ¶¶ 4-5, 13; Defs.' Mem. at 3-4 (characterizing this reorganization as "major"). As a result of the reorganization, the number of...