United States District Court, District of Columbia
S. CHUTKAN, United States District Judge
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
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. The Secret Service (the
"Service") has moved for summary judgment on all
three of Ritchie's claims.
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.
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.
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).
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).
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).
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).
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 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).
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).
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).
THE APPLICABLE LEGAL STANDARDS
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).
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.
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,