United States District Court, D. Columbia
SAMUEL ST. JOHN, Plaintiff,
JANET NAPOLITANO, Secretary of Homeland Security, Defendant
[Copyrighted Material Omitted]
For SAMUEL ST. JOHN, Plaintiff: Jennifer I. Klar, RELMAN, DANE & COLFAX, PLLC, Washington, DC; Tara K. Ramchandani, PRO HAC VICE, RELMAN, DANE & COLFAX PLLC, Washington, DC.
For JANET A. NAPOLITANO, Secretary, Department of Homeland Security, Defendant: Jeremy S. Simon, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
BERYL A. HOWELL, United States District Judge.
The plaintiff, Samuel St. John, filed this employment discrimination action when his superiors decided against promoting him from Acting Director to Permanent Director after observing him for one year functioning in the Acting role. The plaintiff alleges the defendant's decision not to promote him was discriminatory and retaliatory under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 633a, et seq. Second Am. Compl. (" SAC" ), ¶ ¶ 1, 7, ECF No. 38. The defendant counters that the plaintiff was not promoted for performance reasons. Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s Mem. Supp." ) at 18, ECF No. 44. Pending before the Court is the defendant's Motion for Summary Judgment, ECF No. 44. For the reasons set forth below, the defendant's motion will be granted.
A. Factual History
1. The Plaintiff's Employment History
The plaintiff is a Hispanic man of Mexican national origin born in 1953. SAC ¶ 11; Pl.'s Mem. Opp'n Def.'s Mot. Summ J. (" Pl.'s Opp'n" ) at 2, ECF No. 52. He worked in what is now the Department of Homeland Security from 1982 until his retirement in 2010. See SAC ¶ ¶ 14-16, 32.
In 1982, the plaintiff became an immigration inspector for the Immigration and Naturalization Service where he " processed applicants for admission" and " interviewed them in Spanish." Dep. of Samuel St. John (" Pl.'s Dep." ), Pl.'s Opp'n Ex. 16 at 12:5-16, ECF No. 52-3. After five years, the plaintiff moved his employment to the U.S. Customs Service in El Paso, Texas, where he served in a variety of positions for three years. See id. 15:2-16:22. In 1991, the plaintiff was transferred to Customs Headquarters as a Fines, Penalties and Forfeiture Specialist, a position in which he served for another five years. Pl.'s Aff. Statement of Material Facts (" Pl.'s SMF" ) at ¶ 3 ECF No. 52. In 1996, the plaintiff moved to the Office of
Commercial Operations,  where he served as a field operations specialist working on international trade agreements. Pl.'s Dep. at 25:3-21, ECF No. 52-3.
While working as a field operations specialist, between 1997 and 2001, the plaintiff applied for several GS-14 positions but was not promoted. Id. at 27:16-22. The plaintiff filed " some EEO complaints," beginning in 1997, approximately a year and a half after he began working as a field operations specialist. See id. at 24:22-25:2 (stating the plaintiff started specialist position in " early 1996" ); Pl.'s Opp'n Ex. 48 (" Individual Complaint of Employment Discrimination" received on June 3, 1997) at 277, ECF No. 52-4 (reflecting plaintiff's complaint of discrimination for national origin discrimination and retaliation for " past and present union activities" ). The plaintiff subsequently filed additional EEO complaints on May 4, 1998, October 29, 1998, and December 2, 1998. See Pl.'s Opp'n Ex. 48 generally. A common theme in these complaints concerned the fairness of the panels that did not select him for promotion to the GS-14 level due to alleged retaliation by the employee " who determines the make-up of the rating pannel [sic]." Id. at 280; id. at 282 (plaintiff stated he " made the [Best Qualified List (" BQL" )] list on several occasions but have not been selected" ); id. at 284 (plaintiff " continue[d] to make the BQL list" but " [t]he Office of Field Operations also continues to manipulate the composition of the rating panel in order to get panelist that will score [the plaintiff] low and score their candidates high." ).
In April 1999, the plaintiff was promoted to a GS-14 level customs inspector in the CBP's Office of Internal Affairs.  He remained in that position until he joined the Container Security Initiative (" CSI" ) in 2004. See Pl.'s SMF ¶ 8. CSI is one of nine programs in the Cargo and Conveyance Security (" CCS" ) division, which is part of the CBP's Office of Field Operations. Supplemental Declaration of Todd Owen (" Owen Supp. Decl." ) ¶ ¶ 1-2, ECF No. 44-5. Other CCS programs relevant to this case include the Customs-Trade Partnership Against Terrorism (" C-TPAT" ) and Secure Freight Initiative (" SFI" ), the directors of which reported to the Executive Director of CCS, Todd Owen (" Owen" ). Id. at ¶ 2.
The CSI is designed to " target and screen high-risk containers of cargo before they depart from foreign ports in order to stop threats to the security of the supply chain. Pl.'s SMF ¶ 6; see also Def.'s Statement of Material Facts Not in Dispute (" Def.'s SMF" ) ¶ 7, ECF No. 44. " CSI is a partnership with foreign governments that permit CBP and DHS personnel . . . to be present at 58 foreign ports."
Owen Supp. Decl. ¶ 7. C-TPAT is a larger program that works primarily with the " private sector trade community" to inspect " all aspects of the compan[ies'] supply chain." Id. at ¶ 5. Where C-TPAT addresses all parts of supply chain security, CSI focuses on " one node of the supply chain -- targeting high risk cargo and the screening of that cargo before it is loaded on U.S. bound vessels." Id. at ¶ ¶ 5, 7.
The plaintiff was chosen to join CSI by Allen Gina, then the " Senior Executive Service level Executive Director of CSI," Pl.'s SMF ¶ 8, because, inter alia, the plaintiff was viewed as " very competent, very conscientious." Dep. of Allen Gina, (" Gina Dep." ), Pl.'s Opp'n Ex. 17, ECF No. 52-3 at 78:15. Within a year of his joining CSI, he was promoted to Branch Chief of Strategic Planning and Development " for the same reasons . . . why we hired him." Id. at 81:17-82:3. As branch chief, the plaintiff supervised between ten and fifteen people. Id. at 93:1-3. During his CSI tenure, the plaintiff consistently received perfect performance ratings from his supervisors. See Pl.'s SMF ¶ 14; Pl.'s Opp'n, Exs. 9, 20, 21, ECF Nos. 52-3; 52-4.
2. The Plaintiff's Appointment To And Performance As Acting Director
In December 2007, the plaintiff was appointed Acting Director of CSI " after that position was temporarily vacated by Marsha Wiggins." Def.'s SMF ¶ 13. According to Wiggins, the plaintiff was appointed Acting Director because he " knew the program . . . [and] had acted [as Director temporarily] before." Dep. of Marsha Wiggins (" Wiggins Dep." ), Def.'s Mot. Dismiss Ex. 6 at 90:16-17, ECF No. 44-7. Notably, Wiggins opined that any of the three branch chiefs (of which the plaintiff was one) " would have been expected to be able to step into [the] role," but one branch chief was an Immigrations and Customs Enforcement (" ICE" ) Agent on temporary detail to CBP, Def.'s SMF ¶ 15, and another had " a much broader responsibility" than the plaintiff. Wiggins Dep. at 90:8-16, ECF No. 44-7. Wiggins therefore considered the plaintiff to " be the logical recommendation" for Acting Director. Id. at 90:17-18. The plaintiff's second level supervisor, Owen, as Executive Director of CCS, approved Wiggins' recommendation. Pl.'s SMF ¶ 18, Dep. of Todd Owen (" Owen Dep." ), Pl.'s Opp'n Ex. 4 at 53:10-11, ECF No. 52-3. According to Owen, Wiggins " indicated [the plaintiff] was the strongest of the branch chiefs" within CSI. Id. at 53:1-9.
The plaintiff served as the Acting Director of CSI for approximately one year. Pl's SMF ¶ ¶ 18-19. During that time, the plaintiff's supervisor noted at least eight separate occasions when the plaintiff was notified of a deficiency in his performance. See Def.'s Reply Pl.'s Opp'n to Def.'s Mot. Summ. J. (" Def's Reply" ) at 2-4, ECF No. 55. None of these deficiencies, however, rose to the level of requiring that the plaintiff be removed from his Acting position. Owen Dep. at 116:9-10, ECF No. 52-3. Owen told the plaintiff he was generally satisfied with the plaintiff's management of the CSI program, id. at 144:2-5, and approved a cash bonus award of $2,000 to reflect the plaintiff's " competent" management of CSI while the plaintiff was Acting Director. See Owen Supp. Decl. ¶ 24. This bonus amount awarded to the plaintiff was only half the bonus given to several other employees whom Owen supervised and were in equivalent positions to the plaintiff. Id.
The defendant's concerns with the plaintiff surfaced almost immediately after the plaintiff began his temporary assignment as Acting Director. In an email, dated February 2, 2008, less than two months after the plaintiff was named acting director,
Richard DiNucci (" DiNucci" ), the Director of the SFI (another CCS program), emailed the plaintiff's then direct supervisor, Owen, complaining that the plaintiff " directed that his Team Lead in Egypt, CBPO [redacted], not participate in the SFI meetings in Alexandria. I will be kind and say that this is at best not conducive to managing either program properly . . . I apologize for raising this to you on a weekend, but [the plaintiff] has the clear idea that any cross-utilization of resources or cooperation is somehow not good management." Declaration of Frislanda Goldfeder (" Goldfeder Decl." ) Ex. J at 87, ECF No. 44-3. Owen had to step in and direct the plaintiff " to assist SFI." Owen Supp. Decl. ¶ 23. Apparently, the problem was ongoing; the subject line of the email exchange between Owen and DiNucci was " SFI CSI Again." Goldfeder Decl. Ex. J. at 87.
Two weeks later, on February 17, 2008, Owen emailed the plaintiff that Owen should have been notified in a timely manner about a hospitalized CSI officer, instead of learning about the situation almost a week later through other channels. Goldfeder Decl. Ex. N at 101, ECF No. 44-3. A similar situation arose in April, 2008, when Owen told the plaintiff, in reference to a CSI employee being sent home early from an overseas temporary duty assignment due to misconduct, that Owen " should be hearing about it from [the plaintiff], not from the [Director of Field Operations] . . . [Owen] should not be in the dark on such matters." Goldfeder Decl. Ex. O at 103, ECF No. 44-3. Although the plaintiff responded to this criticism by asserting " [i]t will not happen again," Owen reprimanded the plaintiff via email again in December, 2008 for failing to notify Owen in a timely manner when a CSI officer was involved in a shooting incident. See Goldfeder Decl. Ex. P at 107, ECF No. 44-3 (" Why was I not called by you? This is not good." ).
In addition to communication and notification problems regarding issues within the plaintiff's chain of command, Owen was concerned about the plaintiff's interactions with his peers. In an email exchange, DiNucci responded to the plaintiff's objection to one of his employees assisting SFI by noting " the [executive director's] message was clear that cooperation is seamless in CCS and that there is no program wall of separation." Goldfeder Decl. Ex. I. at 85, ECF No. 44-3. Over the course of the exchange, DiNucci eventually referred the plaintiff to Owen, who had approved the plaintiff's employee's designation, in the face of the plaintiff's continuing objections. Id. at 84-85.
The plaintiff was also criticized for failing to cooperate with a request to assist a Congressional delegation visit. See Owen Dep. at 110:14-114:13, ECF No. 44-6. The plaintiff informed an employee that " [u]nder no circumstances should your team in Rotterdam be making any transportation arrangements for the upcoming Congressional Staff delegation . . . Please advise your team that unless they get a call from you or [the plaintiff] directly, they are NOT to arrange airport transportation." Goldfeder Decl Ex. L, ECF No. 44-3, at 92 (emphasis in original). Owen pointed out to the plaintiff that this " was a bigger issue of supporting the overall agenda of CBP and a parochial view" the plaintiff had. Owen Dep. at 113:3-5, ECF No. 44-6. Specifically, Owen was concerned that the plaintiff had missed " an opportunity to further advance the work of CSA by establishing a good relationship with" the congressional staffers. Id. at 112:15-17. Similarly, on another occasion, the plaintiff was advised against raising objections to the use of CSI personnel to assist in a visit to Argentina by the CBP
Commissioner. See Goldfeder Decl. Ex. K at 88-89, ECF No. 44-3.
The plaintiff's supervisor had to intervene in a dispute between the plaintiff and the Assistant Commissioner of the CBP, Allen Gina, because the plaintiff declined to accede to Gina's request to station an employee at a new intelligence operations center instead of headquarters. See Goldfeder Decl. Ex. M at 95-99, ECF No. 44-3; Gina Dep. at 222:19-223:2, ECF No. 44-7. Owen also chaired a meeting to address " issues" raised by another of the plaintiff's peers, Frank Jaramillo, who served as the Director of another component of CCS, about the plaintiff's management of CSI, including disagreements about staffing, integration, working collectively, using resources efficiently and " not working in stovepipes." Def.'s Reply Ex. 1 at 60:16-63:16, ECF No. 55-2.
Finally, the plaintiff's supervisor had to remind the plaintiff he was not entitled to take over the Director's office space when he was only temporarily assigned to the position, which was a " protocol deficiency." Owen Dep. at 114:17-115:6, ECF No. 44-6.
3. The CSI Director Position
The plaintiff's complaint stems from his unsuccessful attempt to become the Director of CSI, which is a GS-15 level position. See SAC ¶ 6. Vacancy notices were posted for the position twice, once in June, 2008 and again in October, 2008, that described the duties and responsibilities of the position. Id. ¶ ¶ 19, 26. Specifically, the announcement informed applicants that the Director of CSI was expected to, inter alia, " manage organizational changes as well as changes to the content of the program; " " identify and resolve unique issues where no policy exists and take innovative actions to address new needs and/or issues; " and " serve as a representative of and advocate for the program in dealings with high-ranking officials in other Federal agencies, top-level managers in the agency, and various governing board and committees." Goldfeder Decl. Ex. A at 6, ECF No. 44-3.
The announcement also spoke directly to the extensive interpersonal skills required for the position. Id. It informed applicants that the CSI Director would be required, inter alia, to " make decisions on work problems presented by subordinate supervisors; " " exercise significant authority in dealing with officials of other units/organizations and in advising management officials of higher rank on operational issues; " and " evaluate subordinate supervisors and serve as the reviewing official on evaluations of non-supervisory employees rated by subordinate supervisors." Id.
Several defense witnesses indicated that there is a substantive difference between the work the plaintiff was performing as a branch chief, a GS-14 position, and the work expected of the CSI Director, a GS-15 position. The plaintiff's former direct supervisor, Marsha Wiggins, for example, stated that " [t]here's a big difference between a [GS-]14 and a [GS-]15" and noted she didn't know if the plaintiff had the requisite leadership skills for the higher position. See Wiggins Dep. at 90:20-91:8, ECF No. 44-7. Owen, the plaintiff's direct supervisor when the plaintiff became Acting Director, noted it was his " contention at the [GS-]15 level, it's not about technical knowledge, but it's about leadership." Owen Dep. 171:12-13, ECF No. 52-3. Jayson Ahren, a former CBP Acting Commissioner, summed up the difference between GS-14s and GS-15s as a " cut" between leadership positions and lower level positions:
You had some great program officers and program managers that had no business becoming GS-15s. Just because they had performed well as a 14 or as a
13 doesn't mean they're going to perform well as a 15 and that you want to really be able to find someone who's got that leadership potential to be able to go to that next level of the organization because to me that's where the cut is made going forward. Talked about the number of 15s but the number of 14s is several times more than the number of 15s. When you get into managing and directing, that GS-15 really becomes the leadership position which I believe is the cut.
Dep. of Jayson Ahern (" Ahern Dep." ), Def.'s Reply Ex. 6 at 67:4-16, ECF No. 55-2.
4. The June 2008 CSI Director Opening
In June, 2008, the CBP posted the first vacancy notice for the permanent CSI Director position. See Pl.'s Opp'n Ex. 26 at 104-10, ECF No. 52-4. At this time, the plaintiff had been serving for approximately six months as Acting Director. The plaintiff applied for the position and received a perfect score on the computer generated occupational assessment questionnaire portion of his application. Pl.'s Opp'n Ex. 28 at 129, ECF No. 52-4. The plaintiff's name was listed among seventeen candidates on the Merit Promotion Certificate of Eligibles (also known as the Best Qualified List or BQL), from which " [a]ny candidate on the list" could be selected for the position. See Pl.'s Ex. 27-S at 3-5, ECF No. 53-11 FILED UNDER SEAL.
Owen was the " recommending official for the selection of a CSI director" and Deputy Assistant Commissioner Winkowski (" Winkowski" ) was the selecting official. Owen Dep. at 126:1-5, ECF No. 52-3. Owen's " recommendation would go to the deputy assistant commissioner and then on to the commissioner for approval." Id. at 135:11-13. Owen noted that " the assistant commissioner relied on the recommendations put forth by his senior staff," presumably referring to himself. Id. at 140:14-19. Owen declined to make a selection from the list of eligible names presented to him from the June vacancy list " without seeking input or approval from anyone, as was [his] prerogative." Owen Supp. Decl. ¶ 12. The plaintiff stated that " the top three candidates . . . were all racial minorities."  Pl.'s SMF ¶ 23; Pl.'s Ex. 29 at 2, ECF No. 53-12, FILED UNDER SEAL. Of the seventeen candidates not chosen, twelve were non-minority candidates. See Pl.'s Ex. 29.
The plaintiff expressed his disappointment to Owen when he learned in August that he was not selected for the permanent CSI Director position. Pl.'s SMF ¶ 24; Owen Dep. at 143:14-16, ECF No. 52-3. He asked Owen why he was not selected for the position and Owen responded that he was " happy with your work, you're doing an excellent job." Pl.'s Dep. at 114:4-7, ECF No. 52-3. Owen recalls telling the plaintiff he was " managing the program effectively." Owen Dep. at 144:1-5, ECF No. 52-3. The plaintiff also recalls Owen telling him that the selection decision was " out of my hands" and that " Winkowski wants, you know, somebody that . . . hasn't been with the CSI program since the inception." Pl.'s Dep. at 114:8-11,
ECF No. 52-3. Owen recalls telling the plaintiff " about the benefits of having a fresh perspective on programs, about the benefits of moving throughout your career, not spending too much time in one program . . . . As part of that discussion, I remember indicating that I felt the assistant commissioner would be looking at those types of different opportunities when he makes selections." Owen Dep. at 177:18-178:3, ECF No. 52-3. 
After this August, 2008, conversation with Owen, the plaintiff called an EEO counselor and said " I put in for this CSI director position and I got a notification from the Minneapolis hiring center that no selection was made and I want to file a complaint." Pl.'s Dep. 116:17-24, ECF No. 44-6. He apparently did not do so because he was told by the EEO counselor that he could not file a complaint " because no selection was made." Id. at 116:24-25.
In or around August, 2008, the plaintiff first advised Owen that he had filed discrimination complaints in the past. See Pl.'s Dep. at 119:8-25, ECF No. 44-6. Specifically, the plaintiff was concerned about Winkowski's involvement in the selection process for CSI Director because " Winkowski was working with Mr. Winwood," a former CBP employee against whom the plaintiff had raised a complaint in 1994. Pl.'s Dep. at 212:8-9, ECF No. 44-6. The plaintiff " brought it to the attention of Mr. Owen, [he] said, does it have anything to do with the EEO complaint that I filed against Chuck Winwood, and I didn't -- I don't remember getting a response from -- from Mr. Owen other than that Mr. Winkowski did not want anybody that had been working for CSI since the inception." Id. at 212:11-17. The plaintiff does not " believe [he] went into the specific [sic] as to . . . what the complaint was about." Id. at 213:6-7. Owen confirms that the plaintiff " volunteer[ed] information" about the plaintiff's " prior EEO activity" but he does not recall that the plaintiff " provided any specifics about his prior EEO activity other than stating that he felt he was being held back from future promotions because [Assistant Commissioner] Ahern was displeased over a prior EEO matter." Owen Supp. Decl. ¶ 18.
5. The Plaintiff Applies For And Is Appointed To A Position In El Paso
In May, 2008, approximately one month before the first vacancy notice was posted for the CSI director position, a vacancy was announced for a GS-14 Border Security position in El Paso, Texas. Goldfeder Ex. S. at 127, ECF No. 44-3. This position entailed " unify[ing] antiterrorism enforcement efforts within an assigned geographic area and among the ports under the purview of the Field Operations Office assigned. Specifically, [the position holder] will coordinate enforcement efforts with Headquarters, other Field Operations Offices, and appropriate personnel within the U.S. Immigration and Customs Enforcement (ICE) and other federal and non-federal agencies and measure the productivity of these efforts." Id. at 128. The plaintiff was born and raised in El Paso, owns a home there, and has family there. Pl.'s Dep. at 8:15-17; 109:2-24, ECF No. 44-6. On June 6, 2008, before the vacancy announcement for the CSI Director position had issued, the plaintiff sent an email to a coworker asking her to " put in a good word for [him]" with Ana Hinojosa (" Hinojosa" ), the person responsible for making a selection recommendation for that position. Goldfeder Decl. Ex.
T at 135-36, ECF No. 44-3. At the time, the plaintiff states he knew the CSI Director position would be opening soon. See Pl.'s Dep. at 107:7-9, ECF No. 44-6.
The plaintiff's coworker gave Hinojosa " input . . . significantly raving about [the plaintiff] and his qualifications in [the co-worker's] work with him." Dep. of Ana Hinojosa (" Hinojosa Dep." ), Def.'s Reply Ex. 3 at 106:10-12, ECF No. 55-2. Hinojosa " was very interested in kind of getting a look to see what kind of candidate he was at" the 2008 CSI Targeting Conference, for which the plaintiff was a " co-host." Id. at 99:18-22; 106:12-14. At the conference, Hinojosa " was not very impressed by [the plaintiff's] presentations. [She] thought [the plaintiff] was maybe a little too familiar -- using too familiar of a conversation tone with the audience. [She] felt that the audience was comprised of international representatives from different countries, and I thought that maybe a more formal style would have been more appropriate for headquarters representatives." Id. at 47:13-21. Initially, these observations stopped Hinojosa from recommending the plaintiff for the El Paso position. Id. at 47:22-48:4. She eventually changed her mind, however. Id. at 48:5-7.
The plaintiff was selected for the El Paso position " on or about October 1, 2008." Def.'s SMF ¶ 78; see also Goldfeder Decl. Ex. V. at 142, ECF No. 44-3 (showing October 1, 2008 date for selecting official's signature on document indicating selection of plaintiff). The plaintiff sent an email accepting the conditional job offer on October 20, 2008. Goldfeder Decl. Ex. W at 145, ECF No. 44-3. The plaintiff was told his effective date for the new position would be January 4, 2009. See id. at 144.
While in El Paso, Hinojosa noted the plaintiff did " a fantastic job" as a GS-14 border security coordinator. See Hinojosa Dep. at 104:9, ECF No. 55-2. She noted that the plaintiff " does not have any problems forming an opinion, and I think that he defends his opinion well, on a couple of occasions maybe a little bit longer than I would have expected him to defend his opinion." Id. at 104:3-7. Hinojosa also noted that, though she had never worked at CBP headquarters, her " assessment would be that there are a lot of different factors that need to be taken into consideration when you're working at the headquarters level, not the least of which would be the political implications of making policy decisions, and that requires a different level of finesse-ness." Id. at 104:21-105:5. Based on Hinojosa's observations, the plaintiff " did a great job ...