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Mount v. Johnson

United States District Court, District of Columbia

March 31, 2016

JASON MOUNT, Plaintiff,
JEH CHARLES JOHNSON, Secretary, Department of Homeland Security, Defendant.



Plaintiff Jason Mount, a Caucasian man, is employed as a Supervisory Special Agent at the Department of Homeland Security ("DHS" or "Defendant"). On July 31, 2012, Mount filed the instant complaint pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2000e-17, alleging that DHS discriminated against him on the basis of his gender and race when it did not select him for any one of the 43 different positions within the agency's offices nationwide for which he had applied. ( See Compl., ECF No. 1, ¶¶ 123-143 (Counts I and II).) The complaint also alleges that these various non-selections constituted retaliation for Mount's previous filing of an EEO discrimination charge against his supervisor. ( See id. ¶¶ 144-151 (Count III).) On April 10, 2014, this Court dismissed Counts I and II of Mount's complaint, and partially dismissed Count III, on the grounds that Mount had failed to exhaust his administrative remedies with respect to 42 of the 43 non-selection claims in the complaint. ( See Mem. Op., ECF. No. 13, at 29-30.)[1] The only claim that remained at that point-and the one that is currently at issue-is Mount's claim that DHS retaliated against him by not selecting him for a Los Angeles Assistant Special Agent-in-Charge ("ASAC") position on July 14, 2011. ( See id. at 30 & n.10.)

Before this Court at present is Defendant's motion for summary judgment on the Los Angeles ASAC non-selection retaliation claim. (Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 26.) Defendant assumes arguendo and for the purposes of its motion that Plaintiff has established a prima facie case of retaliatory non-selection, and argues that summary judgment should be granted in DHS's favor nevertheless because the agency had a "legitimate-non-retaliatory reason for its actions that Plaintiff cannot show to be pretextual[.]" ( Id. at 12.) According to Defendant, the agency selected Hoang Truong for the position instead of Mount because DHS believed that Truong was better qualified for the position based on objective criteria. ( Id. ) Defendant also maintains that Mount's assertions of temporal proximity cannot, standing alone, establish a retaliatory motive. ( See id. at 22-26.) In response, Mount maintains that DHS's proffered reasons for not selecting him are pretextual because he had superior qualifications that Truong lacked ( see Mem. in Support of Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n"), ECF No. 27-1, at 8-10), and because the experience-related criteria that DHS uses to make its hiring decisions were inappropriately applied to him ( see id. ). Mount further argues that, solely because of the close temporal proximity between Mount's protected activity and DHS's allegedly unreasonable non-selection, a jury could reasonably conclude that the purportedly legitimate reasons that DHS seeks to advance are a pretext for unlawful retaliation. ( See id. at 10-11.)

For the reasons explained fully below, this Court finds that no reasonable jury could find that DHS's legitimate, non-retaliatory reason for hiring Truong for the position was a pretext and that the true reason for the non-selection was retaliation. Thus, Defendant's motion will be GRANTED, and summary judgment will be entered in favor of Defendant on the retaliation claim based on Mount's non-selection for the Los Angeles ASAC position. A separate order consistent with this Memorandum Opinion will follow.


A. Factual Background

The basic facts regarding Mount's service as an employee of DHS, his filing of a complaint against his supervisor, and the agency's review of his application for a position in the Los Angeles ASAC are recounted below and are not disputed, unless otherwise noted.

Mount began his employment at DHS when he was hired as a Special Agent of the U.S. Customs Service on September 3, 2001. ( See Compl. ¶ 13; see also Def.'s Stmt. of Material Facts, ECF. No. 26-1, ¶ 16; Pl.'s Stmt. of Material Facts, ECF No. 27-2, ¶ 16.)[2] Over time, Mount was promoted to Branch Chief/Supervisory Special Agent (level GS-15) at ICE Headquarters in Washington, D.C. ( See Compl. ¶ 14.) In November of 2010, Mount filed an administrative gender-discrimination complaint with the agency's EEO office, alleging that ICE was discriminating against him based on his gender because the agency did not grant his requests for an office, while his female counterparts had received offices. ( See Compl. ¶¶ 15, 22; Report of Investigation ("ROI"), Ex. A to Def.'s Mot., ECF No. 26-3, at 12.)

On March 7, 2011, while this EEO complaint was pending, ICE announced a vacancy in a GS-15 ASAC position in Los Angeles, California. ( See Def.'s Stmt. of Material Facts ¶ 2; Pl.'s Stmt. of Material Facts ¶ 2.) The advertised position was in the ICE Homeland Security Investigations directorate ("HSI"), the division that "investigates immigration crime, human rights violations and human smuggling, smuggling of narcotics, weapons and other types of contraband, financial crimes, cybercrime and export enforcement issues." (ROI at 92.) The position was "primarily that of a second or third line supervisor[, ]" and the duties included, among other things, the "management and direction of all investigation operations and administrative activities located within the Field Office's geographic boundaries"; the management of the activities of the program "through subordinate supervisors who supervise staff involved in investigation and/or intelligence gathering functions"; the evaluation of subordinate supervisors as they undertake to evaluate nonsupervisory employees; and the review and approval of disciplinary actions. (Def.'s Stmt. of Material Facts ¶¶ 3-4; Pl.'s Stmt. of Material Facts ¶¶ 3-4; ROI at 145-51.) The announcement for the position also stated that the successful applicant must "make continuous studies of investigative operations to evaluate the effectiveness of local operations and brief same" and "must [also] be able to develop and maintain successful relationships and information networks with internal and external officials and stakeholders in all levels of government[.]" (Def.'s Stmt. of Material Facts ¶ 4; Pl.'s Stmt. of Material Facts ¶ 4.)

A preliminary interview panel consisting of Special Agent-in-Charge ("SAC") Claude Arnold, Deputy SAC Kevin S. Kozak, and Assistant SAC Debra Parker, reviewed the applications of three GS-15 candidates-including Mount-and several GS-14 candidates, including Truong. (Def.'s Stmt. of Material Facts ¶ 8; Pl.'s Stmt. of Material Facts ¶ 8; ROI 145-51.) SAC Arnold then wrote a memorandum that recommended giving the position to Truong; several reasons for that recommendation were also provided. ( See Def.'s Stmt. of Material Facts ¶ 10; Pl.'s Stmt. of Material Facts ¶ 10.) Specifically, the memo emphasized Truong's "operational expertise, administrative experience and [his] understanding of the strategic planning process necessary to being an effective ASAC[, ]" and it also highlighted certain aspects of his work experience, including his service as a criminal investigator for fifteen years, his position as a National Program Manager at HSI Headquarters for two years, and the fact that he worked "as an Operations Manager in Operations West for seven months." (SAC Arnold Memo, Ex. C to Def.'s Mot., ECF No. 26-5, at 2.) The interview panel concluded that the Los Angeles ASAC position should be offered to Truong, after which a separate (intermediate) selection panel reviewed the documentation and also recommended that Truong be given the job. ( See Def.'s Stmt. of Material Facts ¶¶ 9, 12; Pl.'s Stmt. of Material Facts ¶¶ 9-12.) Acting Deputy Associate Director Michael Holt then offered the position to Truong based on both panels' recommendations. ( See Def.'s Stmt. of Material Facts ¶ 13; Pl.'s Stmt. of Material Facts ¶ 13.)

Notably, the parties here vigorously dispute whether or not there was unanimity among the panelists with respect to the conclusion that Truong was the best candidate- DHS asserts that " [a]ll three [interview] panel members agreed that [Truong]... was the best qualified candidate" and that the intermediate selection panel "reviewed the documentation and unanimously concurred" (Def.'s Stmt. of Material Facts ¶ 9, 12 (emphasis added)), while Mount maintains that at least one member of the interview panel, SAC Arnold, was not, in fact, evaluating the candidates' qualifications objectively, and instead, had decided "not [to] select [Mount] because of his prior administrative complaint[, ]" effectively skewing the observations in his recommendation memorandum accordingly (Pl.'s Stmt. of Material Facts ¶¶ 9, 10, 12).

On August 29, 2011, after he was informed that he would not be appointed as the Los Angeles ASAC, Mount amended his open EEO complaint to include an additional claim of retaliation based on the Los Angeles ASAC non-selection. (ROI at 20.) He also allegedly requested reassignment to another office, and the following spring, he was voluntarily downgraded to his present position as a Supervisory Special Agent (level GS-14) stationed in Boston, Massachusetts. ( See Compl. ¶ 122 (asserting that "he begrudgingly accepted the... position in Boston... on March 4, 2012"); see also Ex. F to Def.'s Mot., ECF No. 26-8, Mount Dep. 4:18-24, 5:1-13, Nov. 18, 2014.)

B. Procedural History

Mount filed the instant lawsuit on July 31, 2012. His complaint alleges that DHS discriminated and retaliated against him by unreasonably failing to select him for the Los Angeles ASAC position, as well as 42 other distinct employment positions that he applied for within the agency between January 19, 2011, and April 25, 2012. ( See Compl. ¶¶ 19-121.) After this Court granted the agency's partial motion to dismiss and dismissed the 42 other non-selection claims for lack of exhaustion ( see generally Mem. Op. & Order, ECF Nos. 13-14), the parties proceeded to discovery on the retaliation claim regarding the ...

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