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Sykes v. Napolitano

May 11, 2010

LARRY J. SYKES, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY , DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Larry J. Sykes was the Special Agent in Charge of the Secret Service detail that protected Claudia "Lady Bird" Johnson, former First Lady of the United States, from April 2003 to September 2005, when he was involuntarily reassigned to the position of Assistant Special Agent in Charge at the Secret Service's J.J. Rowley Training Center. Mr. Sykes complains here that the reassignment was an adverse employment action due to his race, African American. Having carefully studied the parties' briefs and voluminous exhibits, the Court concludes that Mr. Sykes's reassignment within the Secret Service was not an adverse employment action within the meaning of Title VII case law and that, even if it were, there is a dearth of evidence to show pretext in the face of the Secret Service's legitimate, non-discriminatory reasons for the transfer. Summary judgment will be granted to the Defendant.

I. FACTS

Without a doubt, Larry J. Sykes has had an impressive career in the Secret Service ("Service").*fn1 He joined the Service as a GS-7 Special Agent on June 13, 1983. Because of the nature of the Secret Service, on his first day he signed an "Acknowledgement of Employment Reassignment Condition," accepting "as a condition of employment that [he] may be geographically reassigned at the discretion of the Secret Service" throughout his career. Def.'s Mot. [Dkt. #32], Ex. 3, Sykes Acknowledgment ("Acknowledgment"). Mr. Sykes first worked in the Indianapolis Field Office until September 1987, rising to a GS-12 along the way. In September 1987, he was reassigned and geographically relocated to the Western Protective Division, where he was promoted to the GS-13 level. In early 1992, at his request, he was transferred to the Los Angeles Field Office. Less than a year later, Mr. Sykes transferred to the Santa Barbara Resident Office, which falls under the L.A. office and did not require that he move. In late 1994, at his request, he transferred to the Chicago Field Office.

In 1998, Mr. Sykes requested and received a transfer to the training division of the Secret Service so that he would be in "the career path that would lead to additional promotion within the Secret Service." Def.'s Mot., Ex. 1, Deposition of Larry Sykes ("Sykes Dep.") 112. In 2000, Mr. Sykes bid for and received a promotion to a GS-14 Assistant to the Special Agent in Charge ("ASAIC") position on the Vice Presidential Protective Division, where he was engaged in training agents. He bid for and received a reassignment in 2002 to a GS-14 ASAIC position in the Investigative Support Division in Secret Service Headquarters in Washington, D.C. Mr. Sykes then bid for and received a promotion to a GS-15 Special Agent in Charge ("SAIC") position in 2003 to head the Johnson Protective Division ("JPD"), which provided protection to Lady Bird Johnson.

Mrs. Johnson, the widow of former President Lyndon Baines Johnson, was in her nineties at the time. There were no directed threats towards Mrs. Johnson and the detail was very slow-paced. As SAIC, Mr. Sykes's duties were to oversee "the operations, budget, and security of JPD . . . as well as all personnel actions relating to its operations." Compl. ¶ 18. Mr. Sykes supervised one GS-14 ASAIC and nine to eighteen other employees, which included Special Agents and special officers. Sykes Dep. 157; Compl. ¶ 18. The JPD worked at three locations: the field office in Austin, Texas; Mrs. Johnson's Austin residence located approximately six miles from the field office; and the Lyndon Baines Johnson ranch located approximately fifty miles away from the field office.

As SAIC of the Johnson Protective Division, Mr. Sykes reported directly to the Deputy Assistant Director ("DAD") of the Office of Protective Operations, Thomas Grupski. Starting in June 2003, his second line supervisor was Assistant Director ("AD") of the Office of Protective Operations, Mark Sullivan.*fn2

A. Office Inspection

A routine office inspection was conducted on the Johnson Protective Division in December 2004. Mr. Sykes was attending a family funeral out of town and was not present during the week-long inspection. The lead inspector informed Mr. Sykes, in a close-out telephone conference, that his recommended rating would be "good." Pl.'s Opp'n [Dkt. #37] ("Opp'n"), Excerpts of Sykes Deposition ("Sykes Excerpts") 264-65.*fn3 However, the final 2004 Inspection Report reflects that the JPD received an overall evaluation of "Fair." Def.'s Mot., Ex. 4, 2004 Inspection Report ("2004 Inspection Report") 5. In the Management Section of the report, the JPD received a "Recommendation," which is the lowest rating a division can receive. Id. Under the prior SAIC, the Johnson Protective Division's management had been rated "Very Good" in a 2002 inspection report.

The 2004 Inspection Report stated that "[e]mployees were critical of the chronic absence of supervisors during in-district protective motorcade movements, particularly movements to the Lyndon Baines Johnson (LBJ) Ranch"; that "[e]mployees were critical of the lack of a consistent supervisory presence at the Austin residence and the LBJ Ranch when the protectee is in residence"; and that "[e]mployees were critical of the perceived lack of adequate interpersonal communication between supervisors and detail personnel, as well as the fact that most communication is accomplished through e-mail and written directives." Id. at 5-6. Further, the 2004 Inspection Report stated that "[i]n concert with the comments offered by division personnel, and to a greater extent as a result of the review of protective operations, the inspection team concluded that Johnson PD supervisors have exercised insufficient direct oversight of personnel and the division as a whole." Id. at 6. As a result, "[t]he inspection team determined that the SAIC and ASAIC of the Johnson PD are not sufficiently engaged in the daily activities of the detail," id. at 12, and that there was "clear indication of sick leave abuse." Id. at 10. The latter was caused by Mr. Sykes's custom of allowing Special Agents to supplement their annual leave with sick leave. Sykes Dep. 276-78. The 2004 Inspection Report recommended that "the SAIC and ASAIC urgently re-evaluate and drastically improve upon their degree of personal participation in protective movements, as well as their level of interaction with and direct supervision of division employees." 2004 Inspection Report 6.

The lead inspector contacted Mr. Sykes twice by telephone after their initial conversation. First, about a week after the inspection, the lead inspector told Mr. Sykes that the overall JPD rating was being downgraded from "good" to "fair" after a briefing session with AD Sullivan and DAD Grupski. Sykes Excerpts 383-384. Second, the lead inspector later informed Mr. Sykes that after further conversation with DAD Grupski, the Johnson Protective Division's rating would be further downgraded to a "fair with recommendations." Id. at 384-86. Having the "recommendations" attached to the rating was a downgrade in itself because it meant the JPD would have to be re-inspected. Id. at 386.

During an in-person briefing in Washington, D.C., Mr. Sykes was advised of the results of the inspection. Id. at 268. Mr. Sykes was counseled in writing regarding the results of the inspection and of the need for improvement. Mr. Sykes drafted a memorandum to the Director of the Secret Service outlining specific corrective actions the Johnson Protective Division would adopt to respond to the noted deficiencies. He cleared drafts of this document with DAD Grupski, who eventually approved the final memorandum. Mr. Sykes indicated that supervisory block coverage would be scheduled for each weekend but that additional coverage would require overtime of more than eight hours each weekend. DAD Grupski directed Mr. Sykes to remove the language concerning overtime. Id. at 271-273. In the end, DAD Grupski ordered Mr. Sykes to submit a final version of the memo that Mr. Sykes opposed. Id. Thereafter, Mr. Sykes worked overtime without payment. Id. at 274-75.

B. The Special Inspection

In late November 2004, Mr. Sykes met with Special Agent ("SA") Brian McKenna, a JPD agent, at SA McKenna's request. SA McKenna informed Mr. Sykes that one of the female agents on the Johnson Protective Division did not want a particular male agent to be the Scheduler, who assigns the various agents to their shifts. The parties do not agree on whether SA McKenna provided Mr. Sykes with a reason for this request, but it is not material to disposition of the motion. What is clear is that Mr. Sykes thereafter directed that the two agents not be scheduled to work together and that the male agent not be the Scheduler, as Mr. Sykes had originally intended. Sykes Dep. 238-244. The next day Mr. Sykes told the female agent that he had granted her request that the male agent not be the Scheduler. Id. at 244. Mr. Sykes also met separately with the male agent and the female agent to ascertain the motivation for the request. Mr. Sykes states that neither spoke of any inappropriate behavior. Sykes Excerpts 242-45.

That was not the end of the matter. On February 4, 2005, DAD Rebecca Ediger in Secret Service Headquarters received an email from SA Scott Kelly of the Johnson Protective Division alleging that a male agent had exposed himself to a female agent while on duty, that the incident had been reported to Mr. Sykes, and that no corrective action had occurred. Def.'s Mot., Ex. 10, Email from SA Kelly. As a result, a special inspection of the JPD was undertaken during February 8-10, 2005, which involved, among other things, interviews with all agents on the detail. During these interviews, SA McKenna stated that he had advised Mr. Sykes during their November 2004 meeting that a male agent had exposed himself to a female agent on two separate occasions. Mr. Sykes denies that SA McKenna reported any such event and states that SA McKenna only told him that the female agent was not comfortable working with the male agent. When interviewed, the accused male agent admitted that he had exposed himself to the female agent on two occasions; he was suspended for 60 days as discipline.

C. Mock Memoranda

In early April 2005, mock memoranda and a gun range poster with plastic knives attached were discovered at the Johnson Residence Command Post. Taped to the back of the gun range poster were plastic knives with the terms "GS-14," "GS-15," "EEO," and "T #" (transfer number) written on them. The poster had a caption: "Fun For the Whole Family: A New USSS Game 'Stab Your Way to the Top.'" Opp'n, Ex. 11, May 2005 Fact Finding Mem. ("2005 Fact Finding") 35. The fake memoranda - some of which were potentially threatening - spoke of various issues including workplace violence*fn4 , Bible verses, and a "Four Step Get Over It Process" to allegedly help Service employees deal with a "growing trend" of supposed broken promises.*fn5 Mr. Sykes contacted DAD Grupski with respect to these issues. He then drafted and directed a memo dated April 11, 2005, to the Chief of the Personnel Division and to AD Sullivan stating that SA McKenna "appears to be suffering from a psychotic disorder" and identifying SA McKenna as the individual who had "apparently authored" all of the mock memoranda and whose written comments were contained on the gun range poster. Opp'n, Ex. 12, Sykes April 11, 2005 Memo 1, 9.

However, on April 25, 2005, SA Michael Moore, another Special Agent at the Johnson Protective Division, sent an email to DAD Grupski admitting that he had authored the majority of the five mock memoranda. A fact-finding team consisting of DAD Grupski and ASAIC Robert Buster went to the Johnson Protective Division on April 26, 2005 to interview the employees. During the investigation, SA Moore told them that he had created five of the six mock memoranda. SA Moore stated that the mock memoranda, which were dated April 1, 2005, were intended to be an April Fool's Day joke. SA McKenna acknowledged that he had created the sixth memo, entitled "Four Step Get Over It Process." SA Kelly admitted to the investigators that he had created the gun range target poster with the plastic knives.

Mr. Sykes was briefed about the fact-finding efforts and its conclusions on April 27, 2005. Immediately thereafter, in Mr. Sykes's presence, DAD Grupski called AD Sullivan and briefed him on the results of the fact-finding investigation. Mr. Sykes then voiced his objections to the findings to AD Sullivan. At the ...


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