United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENT NO.: 9
RUDOLPH CONTRERAS United States District Judge.
IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT.
Michael Markowicz is a white man employed as a Special Agent
by the United States Secret Service, an operational component
within the United States Department of Homeland Security. In
December 2010, Secret Service managers selected African
American and Hispanic Special Agents instead of Special Agent
Markowicz for promotion. Citing his belief that racial
considerations affected the selection process, Special Agent
Markowicz sued the Department of Homeland Security through
its Secretary and brought discrimination and retaliation
claims under Title VII of the Civil Rights Act of 1964.
pre-answer motion, the Department moves to dismiss Special
Agent Markowicz's complaint and moves in the alternative
for summary judgment in its favor on Special Agent
Markowicz's claims. Because Special Agent Markowicz has
withdrawn his retaliation claim, the Court will dismiss that
claim. But because Special Agent Markowicz's complaint
states a plausible discrimination claim, and because genuine
issues of material fact exist with respect to that claim for
the parties to explore in discovery, the Court declines to
grant the Department's motion with respect to the
The Secret Service
Secret Service is an operational component within the United
States Department of Homeland Security. See Operational
and Support Components, U.S. Dep't of Homeland Sec.,
(last updated June 28, 2016); see also 6 U.S.C. §
381; 18 U.S.C. § 3056(g). The Director of the Secret
Service leads the agency, along with a Deputy Director, who
manages its daily protective and investigative operations.
See Leadership, U.S. Dep't of Homeland Sec.,
visited Sept. 1, 2016).
the Secret Service, Assistant Directors manage various
offices with the help of their Deputy Assistant Directors.
See generally Def.'s Mot. Dismiss or, in the
Alternative, for Summ. J. (“Def.'s Mot.”) Ex.
C, ECF No. 9-3 (listing the Assistant Directors in December
2010 and the Assistant Directors' respective offices,
such as the “Office of Administration” and the
“Office of Investigations”); Magaw Decl.
¶¶ 1-2, 10-12, ECF No. 9-7 (discussing Deputy
Assistant Director Magaw's role within the Office of
Strategic Intelligence and Information and how he assisted
the Assistant Director for that office). Within each office,
Special Agents in Charge (“SAICs”) manage various
divisions. See, e.g., Elias Decl. ¶ 8, ECF No.
9-9 (noting that SAIC Nelson Garabito managed the Protective
Intelligence and Assessment Division). Within each division,
multiple Assistants to the Special Agent in Charge
(“ATSAICs”) may assist the SAIC in managing the
work for the division. See, e.g., Garabito Decl. 66,
ECF No. 9-5 (discussing the three ATSAIC positions available
within the Protective Intelligence and Assessment Division in
October 2010); id. ¶ 19 (discussing how the
Division sought to hire ATSAICs to supervise work performed
by the Division's Operations Center). ATSAICs in turn
supervise Special Agents. See, e.g., Markowicz Sept.
2011 Decl. ¶ 7, Pl.'s Opp'n Def.'s Mot.
Dismiss or, in the Alternative, for Summ. J.
(“Pl.'s Opp'n”) Ex. A, ECF No. 16-1
(noting that Special Agent Markowicz's first line
supervisor in 2010 was ATSAIC Robert Long).
Merit Promotion Plan for GS-14 and GS-15 Special Agent
Service Special Agents compete for promotion to positions at
grade levels GS-14 and GS-15, which include ATSAIC positions.
See Def.'s Mot. Ex. A, at 122-23, ECF No. 9-1
(reproducing the Secret Service's merit promotion plan
for Special Agent positions, which states that
“[c]ompetitive procedures apply to . . . promotions for
grade levels GS-14 and GS-15”); see, e.g., Am.
Compl. (“Compl.”) ¶ 19, ECF No. 3 (stating
that an ATSAIC vacancy, in the Office of Strategic
Intelligence and Information's Protective Intelligence
and Assessment Division, was classified at the GS-14
level). If they choose to participate in the
promotion process, Special Agents receive a Merit Promotion
Plan (“MPP”) score. Compl. ¶ 7; Def.'s
Statement of Undisputed Material Facts (“Def.'s
Statement”) ¶ 3, ECF No. 9. The MPP score for each
Special Agent is a weighted score that incorporates raw
scores generated by
(1) the evaluation of the Special Agent that the Special
Agent's supervisor completes;
(2) an “in-basket” assessment, designed to
simulate the Special Agent's review of materials
typically found in a GS-14 or GS-15 Special Agent's
“in-basket” and thus designed to assess how the
Special Agent “would make decisions about delegating
responsibility” and about prioritizing information or
(3) a video-based situational judgment test; and
(4) trained raters who evaluate and score the Special
Agent's “Career Accomplishment Record.”
Def.'s Mot. Ex. A, at 139-42.
Agents use their MPP scores to apply for GS-14 and GS-15
positions by bidding on announced vacancies. Compl. ¶ 8;
Def.'s Statement ¶ 4; see Def.'s Mot.
Ex. A, at 145 (discussing the bidding process). After
receiving Special Agents' bids, the Secret Service's
Personnel Division then refers three groups of eligible
promotion candidates for consideration with respect to each
(1) all Special Agents who bid on that specific vacancy and
who are currently serving in a role that is at or above the
grade level of the vacancy,
(2) the highest-ranking thirty Special Agents who bid on that
specific vacancy, and
(3) the highest-ranking thirty Special Agents overall who bid
on any vacancies at the same grade level as the vacancy being
considered (e.g., for a GS-14 vacancy, the
highest-ranking thirty Special Agents who bid on any
See Def.'s Mot. Ex. A, at 147. These three lists
are called the “Reassignment Certificate, ” the
“Promotion Certificate, ” and the
“Promotion Register, ” respectively. See
Compl. ¶¶ 9-11; Def.'s Statement ¶¶
5-6, 10. Special Agents' MPP scores determine their
positions on the ranked lists. Compl. ¶ 12.
each announced vacancy, the Secret Service's Advisory
Board receives the three lists described above and, from
them, recommends a Special Agent for promotion. See
Def.'s Mot. Ex. A, at 147. The Board's membership
includes the Secret Service's Deputy Director, the
Assistant Directors, the Chief of the Uniformed Division, and
the Chief Counsel, with the Chief of the Personnel Division
in attendance but functioning as an advisor and secretary.
See id.; Def.'s Mot. Ex. C (listing the
Board's membership in December 2010). After receiving the
Board's recommendation, the Director of the Secret
Service may choose to concur with the recommendation or to
select another Special Agent for promotion from one of the
three lists. See Def.'s Mot. Ex. A, at 147.
Board's recommendation process takes into account the
views of the office and of the division affected by the
vacancy. At the meeting at which the Board considers which
Special Agent to recommend for a given vacancy, the Assistant
Director of the office affected by the vacancy will recommend
one or more Special Agents for the vacancy. Magaw Decl.
¶ 29. The Assistant Director's recommendation
typically results from discussions about the vacancy between
the Assistant Director, his or her Deputy Assistant Director,
and the Special Agent in Charge (“SAIC”) of the
division affected by the vacancy. See, e.g., Elias
Decl. ¶ 10 (stating that SAIC Garabito had input into
Assistant Director Elias's recommendations to the
Advisory Board); Garabito Decl. ¶ 8-9, 14 (same); Magaw
Decl. ¶ 12 (same).
ATSAIC Vacancies in the Protective Intelligence and
Assessment Division of the Office for Strategic Intelligence
October 7, 2010, the Secret Service's Personnel Division
announced a vacancy for an Assistant to the Special Agent in
Charge (“ATSAIC”) in the Protective Intelligence
and Assessment Division in the Secret Service's Office
for Strategic Intelligence and Information. Compl. ¶ 19;
Def.'s Statement ¶ 18. The announcement corresponded
to three vacant ATSAIC positions in that division.
See Garabito Decl. ¶ 19 (discussing the three
ATSAIC vacancies in the Protective Intelligence and
Assessment Division's Operations Center).
Special Agent Markowicz bid on the ATSAIC vacancy, he
ultimately was not selected for promotion to any of the three
open positions. Compl. ¶¶ 20, 22; Def.'s
Statement ¶¶ 19, 21. Because his non-selection
forms the basis of this suit, see Compl. ¶ 34,
the Court summarizes here the qualifications of Special Agent
Markowicz and of several of his competitors for the ATSAIC
vacancies at the time they submitted their bids.
Agent Thomas Edwards was ranked first on the Promotion
Certificate for the Protective Intelligence and Assessment
Division ATSAIC vacancies. See Def.'s Mot. Ex.
B, ECF No. 9-2 (reproducing the Promotion Certificate). He
was ranked twelfth on the nationwide Promotion Register.
See Compl. Ex., ECF No. 3-1. According to Special
Agent Markowicz's complaint, “Secret Service
personnel records reveal that [Special Agent Edwards] lists
his race as Hispanic, ” even though he “was
previously identified as [w]hite.” Compl. ¶ 30.
Agent Edwards's experience included four years and seven
months in the Secret Service's San Diego Field Office,
four years in the Vice Presidential Protective Division, four
months at the Rowley Training Center, two years and one month
in the Office of Government and Public Affairs, and six
months in the Washington Field Office. Compl. Ex.;
accord Def.'s Mot. Ex. B. In total, he had
eleven years and six months of experience as a Special Agent.
See Compl. Ex. But he provided protective services
during only his four years in the Vice Presidential
Protective Division. See Id. Special Agent Edwards
was promoted to one of the vacant ATSAIC positions in the
Protective Intelligence and Assessment Division. See
Compl. ¶¶ 23-25; Def.'s Statement ¶¶
Agent Nathan Morgan was ranked second on the Promotion
Certificate. See Def.'s Mot. Ex. B. He had a
total of eleven years and nine months of experience as a
Special Agent, of which he spent three years and ten months
providing protective services through the Presidential
Protective Division. See Id. Because the Advisory
Board chose to recommend Special Agent Morgan for a promotion
position in a different Secret Service office, the Advisory
Board did not recommend him for ...