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Ritchie v. Napolitano

United States District Court, District of Columbia

July 11, 2016



          TANYA S. CHUTKAN, United States District Judge

         Plaintiff Scott Ritchie brings suit under (i) Title VII of the Civil Rights Act of 1964 ("Title VII") for race discrimination; (ii) Title VII for gender discrimination; and (iii) the Age Discrimination in Employment Act (the "ADEA") for age discrimination. (Compl. ¶¶ 25-33). Ritchie, an unassigned officer within the White House Branch of the Secret Service's Uniformed Division, alleges that he was discriminated against in being passed over for an assignment to the Uniformed Division's Counter-Surveillance Unit.

         Defendant Janet Napolitano, Secretary of the United States Department of Homeland Security at the time the complaint was filed, is sued only in her official capacity.[1] The Secret Service (the "Service") has moved for summary judgment on all three of Ritchie's claims.

         Having considered the Service's motion, Ritchie's opposition thereto, the Service's reply in support thereof, and the parties' arguments at the January 4, 2016 motion hearing, and for the reasons set forth below, the Service's motion for summary judgment is hereby GRANTED with regard to Ritchie's ADEA claim, and DENIED with regard to Ritchie's two Title VII claims.


         During the time period relevant to this case, Ritchie was a 43-year-old white male unassigned officer in the White House Branch of the Service's Uniformed Division (the "Division"). (Compl.¶12). As an unassigned Division officer, Ritchie's assignment and location varied from day to day. (Opp'n at 2). He primarily performed fairly monotonous tasks such as standing post at White House complex access points, screening individuals entering the White House complex, answering visitors' questions, and walking the White House fence line. (Id. at 2-3). He had very little control over his work, had to wear a uniform, and was often required to remain in place for hours at a time. (Id. at 3). He was also in a first-line defense position at the White House, and therefore faced some risk of attack while on the job. (Id.).

         In March 2012, White House Branch Deputy Chief Mark Chaney posted a memorandum for six job openings in the Division's Counter-Surveillance Unit (the "Unit"), a plainclothes unit that conducts undercover counter-surveillance in and around the White House complex. (Mot. at 2-4; Opp'n at 5, 8). While an assignment with the Unit does not entail higher pay than other Division assignments, it offers a broader range of experience and job responsibilities than an unassigned position. (Opp'n at 5-7). At the time the job memorandum was posted, only eight Division officers were assigned to the Unit - all were men, at least six were white, and all were under 35 years old. (Mot. at 13; Opp'n at 7).

         The job memorandum required that applicants have both 18 months of experience as a Division officer and "vulnerabilities" training; no other specific qualifications or skills were identified. (Opp'n at 8). For each of four Division shifts, applicants for the Unit positions were directed to submit their resumes to the Watch Commander overseeing their particular shift. (Id. at 8-9). The Watch Commanders were to then send the applications to Chaney, writing recommendations for the applicants they "highly recommended" and ranking them in order of preference. (Id. at 8).

         Approximately fifty "highly recommended" officers across all four shifts applied for the six Unit positions, including Ritchie. (Mot. at 5; Opp'n at 9). Captain Michael Laury, the Watch Commander for Ritchie's shift, ranked Ritchie at the top of his list of eleven "highly recommended" applicants. (Opp'n at 9). Despite this, Ritchie was not selected for the Unit. (Id.). Instead, Chaney selected two white women, one black woman, one black man, one Hispanic man and one 27-year-old white man. (Id. at 9-10). Two of the six selected applicants (the black woman and the Hispanic man) were ranked below Ritchie on Laury's list, and one (the Hispanic man) was also ranked below two other white men on Laury's list who were not selected. (Id. at 9).

         In April 2012, Ritchie filed a discrimination complaint with the Service's EEO Office regarding his non-selection for the Unit. (Id. at 10). Pursuant to federal regulations, EEO counselor Kathy Brezina was assigned to attempt to informally resolve the complaint prior to a formal EEO investigation. (Sanctions Opp'n at 3-4). Brezina interviewed Chaney for about an hour, taking notes that she then used to create her EEO Counseling Report. (Sanctions Mot. at 4-5). After completing her Report, Brezina destroyed her interview notes pursuant to the EEO Office's policy that all such notes be destroyed after they are used to create an EEO Counseling Report. (Id. at 5).

         Brezina wrote in her Report, under the heading "Management Official's Statement, " that Chaney had told her that he did not select Ritchie because, "[d]ue to the nature of the [Unit's] core responsibilities, it is imperative that [Unit officers] be physically and ethnically diverse as they must assimilate into the environment surrounding the White House Complex, " and because the shift for which Ritchie was applying "did not require individuals physically similar to" him. (Opp'n Ex. H at 000027). Brezina also left Ritchie a voicemail in which she stated as follows:

Good afternoon, Officer Ritchie. It's Kathy Brezina from the EEO Office calling and I just wanted to touch base with you and let you know that I finished the preliminary fact finding for your, um, informal complaint and I was not able to discover any information that supports the claim of discrimination. Um, what I did was I talked to management officials[2] and what they said was that the - the reason that they selected the people that they selected for the most current, um, [Unit] assignment is they needed a - a diverse, um, group of people, physically diverse, um, and they selected a black female because they said they had, um, you know, other white males on the unit already so - but they did say that you came highly recommended and it's not saying that you won't ever get the position because you probably will; it's just at this time - at this time, um, they needed a more physically, um, diverse, um, group of people.

(Opp'n at 11) (emphasis added).

         In her deposition, however, Brezina contradicted her EEO Counseling Report and voicemail, stating that (i) Chaney told her "that he selected the individuals that he felt were the best qualified to fill the vacancies"; (ii) Chaney did not tell her that he did not select Ritchie because the Unit already had "enough white males"; and (iii) she did not recall saying that Ritchie was not chosen because the Unit already had "enough white males." (Mot. at 30; Opp'n at 11).

         Chaney acknowledged in his deposition that Ritchie was a "very, very strong candidate" for the Unit. (Opp'n at 13). Chaney also stated that while he considered the candidates' races and genders in deciding who to select (Mot. at 13-16; Opp'n at 12, 16 n.6), he ultimately based his selections on skills the six chosen applicants possessed that Ritchie did not. (Mot. at 7-13; Opp'n at 11-12). Chaney also stated that being diverse was not mandatory for selection, and that he would have selected the same six individuals for the Unit regardless of their race or gender because, based on their other qualifications, they were the six best people for the job. (Mot. at 15-16).[3]


         a. Summary Judgment

         Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) ("[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact") (emphasis in original); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a "claim or defense ... or [a] part of each claim or defense." Fed.R.Civ.P. 56(a).

         "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A). "A fact is 'material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination. An issue is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Holcomb, 433 F.3d at 895 (quoting Anderson, 477 U.S. at 248) (citation omitted). The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980).

         In considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (ching Adickes v. S.H. Kress & Co.,398 U.S. 144, 158-59 (1970)); see also Mastro v. Potomac Elec. Power Co.,447 F.3d 843, 850 (D.C. Cir. 2006) ("We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.") (citing Reeves v. Sanderson Plumbing Prods.,530 U.S. 133, 150 (2000)). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is "required to provide evidence that would permit a reasonable jury to find" in his or her favor. Laningham v. U.S. Navy,813 F.2d 1236, 1242 (D.C. Cir. 1987) (citations omitted), b. Title VII Congress enacted Title VII of the Civil Rights Act of 1964 to implement "the federal policy of prohibiting wrongful discrimination in the Nation's workplaces." Univ. of Tex. Sw. Med. Ctr. v. Nassar, __U.S.__, 133 S.Ct. 2517, 2522 (2013). Title VIFs anti-discrimination provision makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, ...

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