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Markowicz v. Johnson

United States District Court, District of Columbia

September 1, 2016

MICHAEL MARKOWICZ, Plaintiff,
v.
JEH CHARLES JOHNSON, Secretary, United States Department of Homeland Security, Defendant.

          MEMORANDUM OPINION RE DOCUMENT NO.: 9

          RUDOLPH CONTRERAS United States District Judge.

         GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT.

         I. INTRODUCTION

         Plaintiff 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.

         In a 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 Because Special Agent Markowicz has withdrawn his retaliation claim, the Court will dismiss that claim.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 discrimination claim.

         II. BACKGROUND[1]

         A. The Secret Service

         1. Organizational Structure

         The 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., https://www.dhs.gov/operational-and-support-components (last updated June 28, 2016);[2] 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., http://www.secretservice.gov/about/leadership (last visited Sept. 1, 2016).

         Within 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).

         2. Merit Promotion Plan for GS-14 and GS-15 Special Agent Positions

         Secret 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).[3] 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 situations presented;
(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.

         Special 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 vacancy:

(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 GS-14 vacancies).

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.

         For 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.

         The 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).

         B. ATSAIC Vacancies in the Protective Intelligence and Assessment Division of the Office for Strategic Intelligence and Information

         1. Vacancy Announcement

         On 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).

         2. Candidates

         Although 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.

         a. Thomas Edwards

         Special 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.

         Special 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 ¶¶ 22-24.

         b. Nathan Morgan

         Special 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 ...


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