United States District Court, District of Columbia
Randolph P. Moss United States District Judge
case is before the Court on the Government's motion for
summary judgment, Dkt. 45, and Plaintiff Andre Noisette's
motion to strike the Government's supplemental initial
disclosures and supplemental reply exhibit, and to designate
certain facts to be taken as established. Dkt. 58. Noisette,
who is African-American, worked as a law enforcement officer
in the Criminal Investigation Division ("CI" or
"CID") of the Internal Revenue Service
("IRS"). In the fall of 2006, Noisette applied for
a position as the Supervisory Special Agent ("SSA")
for CID's St. Petersburg/Tampa office. He was selected
for the position and was initially told that he qualified for
a 10% pay raise. Before he could assume his new duties,
however, he was told that the information he had been given
about his eligibility for the raise was mistaken. Instead, he
would need to choose between two options: He could accept the
position without the increase in pay, or he could reapply for
the position through a competitive hiring process, and, if
selected, he would be eligible for the raise. He chose to
reapply but, after interviews, another candidate was selected
for the job. Later that same year, Noisette applied for the
SSA position in CID's Miami office. He was the only
candidate for the job and was hired in December 2006. He
assumed his duties in Miami in July 2007.
exhausting administrative remedies, Noisette brought this
suit alleging that both his "deselection" and
subsequent "non-selection" for the St.
Petersburg/Tampa SSA position were the product of
discrimination on the basis of his race and retaliation for
his involvement in the resolution of an Equal Employment
Opportunity ("EEO") dispute that arose in CID's
Chicago office earlier in 2006. As to each set of
allegations, moreover, Noisette asserted claims under
theories of both pretext and mixed motivation, for a total of
eight counts. The parties agree that the two mixed motive
retaliation counts are no longer viable in light of the
Supreme Court's holding in University of Texas
Southwestern Medical Center v. Nassar, 133 S.Ct. 2517,
2525 (2013) that retaliation claims under Title VII require
but-for causation. See Dkt. 45-2 at 10; Dkt. 47 at
29 n. 13. The Court will, accordingly, dismiss those two
counts. Because no reasonable jury could find, based on the
existing record, that either race discrimination or
retaliation was a substantial factor in Noisette's
"deselection" and subsequent "non-selection,
" the Court will GRANT the Government's motion for
summary judgment. The Court will also DENY as moot
Noisette's motion to strike certain Government
disclosures and to designate certain facts to be taken as
Noisette is the nonmoving party, the Court views the evidence
in the light most favorable to him. See Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Where the
parties have disagreed over details in the factual recitation
that follows, the Court has assumed that Noisette's
version of events is correct.
The St. Petersburg/Tampa SSA Vacancy
the branch of the IRS responsible for investigating
violations of the federal tax laws and for supporting
prosecutions of criminal violations. See Dkt. 48-1
at 39. Andre Noisette first joined CID as a revenue agent in
1983. See Id. at 1; Dkt. 45-1 at 1; Dkt. 48-1 at 40.
In 2000, Noisette was promoted to serve as SSA in CID's
Cincinnati, Ohio office. See Dkt. 45-1 at 1; Dkt.
48-1 at 1, 40. Noisette remained in that position until May
2004, when he was selected as Senior Regional Analyst for
CID's Mid-Atlantic region, with a duty station in
Baltimore, Maryland. See Dkt. 45-1 at 2; Dkt. 48-1
at 40. In that position, Noisette's salary was set at
General Schedule level 14 ("GS-14"). See
Dkt. 48-1 at 40. His first-line supervisor was Tyrone Barney,
the Director of Field Operations ("DFO") for the
Mid-Atlantic region; Noisette's role was essentially that
of an executive assistant to Barney. See Dkt. 45-1
at 2; Dkt. 48-1 at 40. Shortly after his selection as Senior
Regional Analyst, Noisette was selected for a temporary
promotion to Assistant Special Agent in Charge of CID's
Detroit Field Office for a period of one year. See
Dkt. 48-1 at 41; Dkt. 55-1 at 3. After his stint in Detroit,
Noisette returned to his position as Senior Regional Analyst
in Baltimore. See Dkt. 48-1 at 41; Dkt. 55-1 at 3.
August 7, 2006, CID issued a vacancy announcement for an SSA
position in its St. Petersburg/Tampa Field Office. Dkt. 45-3
at 2. Noisette and one other CID agent, Angelo Troncoso, a
Hispanic male, each applied for the SSA position on August
17, 2006. See Dkt. 45-5 (Troncoso application); Dkt.
45-6 (Noisette application); Dkt. 47-1 at 3. At the time of
his application, Troncoso was serving as a GS-13 Special
Agent in the St. Petersburg/Tampa Field Office. See
Dkt. 48-1 at 64; Dkt. 55-1 at 37. He had previously served as
acting SSA in that office from April to June 2005 and from
March to July 2006. See Dkt. 45-5 at 8.
the CID's Leadership Development Program, SSA positions
are considered "Frontline Positions." Dkt. 45-4 at
7. This designation carries with it certain programmatic
conditions. First, the Leadership Development Program guide
specifies that "[i]nterviews are required for frontline
positions, " although the Deputy Chief of CID may waive
this requirement. Id. at 17 (emphasis removed).
Second, the guide further specifies that, in order "to
receive a highly qualified determination for entry into
Frontline Management positions, " applicants must have
successfully participated in the Frontline Leader Readiness
Program." Id. at 17 (emphasis removed).
Selections are made from the "best qualified" list,
which is typically composed of those applicants who have
received a "highly qualified" determination.
Id. But, "[i]f an insufficient number of highly
qualified candidates exist, the requirement" of
successful participation in the Frontline Leadership
Readiness Program "may be waived." Id.
Third, because the Leadership Readiness Program is
"targeted [at] GS-13 Special Agents who are interested
in developing leadership skills and considering becoming
future CI leaders, " the guide encourages GS-13 Special
Agents hoping to "maximize competitiveness for
selection to a frontline management position" to apply
to participate in the "Frontline Leader Readiness
Program." Id. at 23 (emphasis removed).
has submitted a document that appears to be a job application
submitted by Troncoso, stating: "5/12/06-Deputy Chief
waived the [Frontline Leadership Readiness Program-Law
Enforcement Officer] highly qualified requirement for
GS-13s." Dkt. 47-26 at 2; Dkt. 55-3 at 4. The Government
argues that that application relates to a different vacancy
announcement with a different closing date than the one at
issue here, see Dkt. 55 at 12 n. 6, but it does not
argue that Troncoso in fact completed the program. Because
the date of the notice of the waiver is close to the relevant
dates in this case, and because of the current procedural
posture of this case, the Court will assume for present
purposes that Troncoso did not complete the Frontline Leader
Readiness Program and that that requirement was waived when
he applied for the St. Petersburg/Tampa SSA position.
fall of 2006, CID was transitioning from the GS scale to the
new IRS "payband" scale for Frontline Manager
positions, including SSAs. See Dkt. 45-20 at 3.
Agents promoted into Frontline Manager positions, including
SSAs, were eligible for a one-time pay increase of 10% of
their previous salary when moving from the GS scale to the
payband scale. According to the IRS's "Frontline
Manager Payband Pay Administration Guidance, " as
amended in July 2006, "[a]n individual without
prior permanent I[nternal] R[evenue] experience [as distinct
from General Schedule (GS) experience] will be eligible for a
one-time 10 percent increase in base pay upon a permanent
competitive movement (e.g., promotion, reassignment, or
change-to-lower grade) into an F[rontline] M[anager] position
for the very first time." Dkt. 47-50 at 2, 7
(underlining in original, italics added). The document lists
"S[enior] M[anager], D[epartment] M[anager], [and]
F[rontline] M[anager]" as examples of "permanent
I[nternal] R[evenue] position[s]." Id.
September 14, 2006, Sharon Hyde, a Human Resources
("HR") Specialist, informed Noisette by email that
"interviews are not required to be entitled to the 10%
increase." Dkt. 45-21 at 5. Noisette also claims that
"Chris Heard, an HR Specialist, and Simone Simmons, a
Senior Regional Analyst and advisor to the selecting
official, " confirmed that he would be eligible for the
pay increase if he applied through the vacancy announcement.
Dkt. 47-11 at 7. In addition, Michael Yasofsky, who was then
the Special Agent in Charge of the St. Petersburg/Tampa
office, checked with Hyde to determine if interviews were
necessary to select Noisette for the SSA position, and he was
told that they were not. See Dkt. 45-17 at 3.
Nevertheless, during the week of September 18, 2006,
Yasofsky-who had not previously met Noisette-interviewed him
in Washington, D.C. Id.; Dkt. 55-1 at 28. Later that
week, Yakofsky contacted Noisette to inform him that he had
been selected for the SSA position. See Dkt. 47-11
at 8. The weekly "CI Bulletin" dated September 22,
2006, announced that "Andre Noisette, Senior Analyst,
DFO Mid-Atlantic Area, has been selected as a Supervisory
Special Agent, Tampa FO, St. Petersburg POD." Dkt. 47-27
at 3 (emphasis removed). On October 10, 2006, Noisette
received authorization to incur relocation expenses for his
move to St. Petersburg/Tampa. See Dkt. 47-11 at 8.
days later, however, Barney, Noisette's supervisor in
Baltimore, called Noisette and told him to hold off on
incurring moving expenses. See Dkt. 45-1 at 7; Dkt.
48-1 at 62. Barney explained to Noisette that, if he wanted
the SSA job, he could either accept the position without the
10% pay increase, or he could interview for the job as part
of a competitive process. See Dkt. 45-1 at 7; Dkt.
48-1 at 62. Barney warned Noisette that, if he chose to go
through the interview process, he was not guaranteed the job.
See Dkt. 45-1 at 8; Dkt. 48-1 at 62. However, if
selected through the competitive process, he would receive
the 10% pay increase. See Dkt. 45-1 at 7; Dkt. 48-1
at 62. Noisette chose to pursue the pay increase and thus to
go through a competitive interview process. See Dkt.
45-1 at 8; Dkt. 48-1 at 62-63.
interviewed for the SSA position on October 16, 2006, before
a three-person panel consisting of Pota Coston, the DFO of
CID's Southeast region, Yasofsky, the Special Agent in
Charge of the St. Petersburg/Tampa field office, and Victor
Lessoff, the Assistant Special Agent in Charge. See
Dkt. 45-1 at 9; Dkt. 48-1 at 63. Coston was the selecting
official. See Dkt. 45-1 at 13; Dkt. 48-1 at 34. The
same panel also interviewed Troncoso. See Dkt. 45-1
at9;Dkt. 48-1 at 63.
left his home at 4:00 a.m. to fly to Atlanta, Georgia, where
the interview took place. See Dkt. 48-1 at 63; Dkt.
55-1 at 35. Noisette subsequently admitted that he
"believed the interview was an administrative
formality." Dkt. 45-13 at 4. Nonetheless, he assessed
his own performance positively: He claimed that he "was
engaged throughout the interview, provided succinct,
responsive answers to the panel's questions, and showed
[his] substantial interest in being selected for the
position." Dkt. 47-11 at 9.
the three panel members, however, shared Noisette's
perception. Coston, the selecting official, thought that
"[Noisette's] answers were very long and dragged
out. He stared out the window as he answered the questions[,
] which gave the appearance he was somewhat distracted or
disinterested in the interview." Dkt. 45-14 at 4. Similarly,
Lessoff recalled that on the first question, Noisette
"rambled on about his accomplishments and himself. He
gave us a lot of information but nothing that really told us
much. It was a long-winded answer that didn't come off
very well." Dkt. 45-15 at 8. He "remember[ed] also
that [Noisette] didn't look at Mike [Yasofsky] or Pota
[Coston] all that much throughout the interview. At times he
looked out the window. It wasn't a good
presentation." Id. And Yasofsky likewise
recalled that "when Andre [Noisette] had his interview,
he wasn't very focused, was distracted looking out the
window quite a bit and looked to the far right quite a bit. I
remember the first question where he went off about
non-related experiences early in his career. It was an okay
interview but not a very good interview." Dkt. 45-17 at
5. Subsequent to the interview, Coston called Debra Popoli,
an HR specialist who had been involved in the selection
process for the St. Petersburg/Tampa SSA position, and told
her that "Andre [Noisette] was not considered the best
candidate for the position" and that "Andre
[Noisette] did not do well in the interview." Dkt. 45-20
to the panelists, Troncoso, in contrast, performed well at
the interview. Coston recalled that he "was well
prepared and had a long term detail as acting SSA, "
that he "was able to effectively articulate how he could
lead this group, " and that "[h]e had a great deal
of passion and excitement in his answers." Dkt. 45-14 at
4-5. Lessoff thought that "Angelo [Troncoso] was very
confident. His first answer was shorter and to the
point." Dkt. 45-15 at 8. Although "[n]othing really
hit [Lessoff] that hard on the other questions, " he
was "more impressed with Angelo [Troncoso] at the end of
the day than Andre [Noisette]." Id. And
Yasofsky's "recollection [was] that Angelo
[Troncoso] had a very strong interview, came across quite
well and had a much better interview than Andre
[Noisette]." Dkt. 45-17 at 5. Both Lessoff and Yasofsky
recommended that Coston select Troncoso. See Dkt.
45-15 at 10; Dkt. 45-17 at 5. A week later, Yasofsky notified
Noisette that Troncoso had been selected. See Dkt.
48-1 at 63.
than two months later, on December 4, 2006, Noisette
interviewed for an SSA position in CID's Miami office.
See Dkt. 45-1 at 14; Dkt. 48-1 at 64. Pota Coston
was again the selecting official and one of three members of
the interview panel. See Dkt. 45-1 at 14; Dkt. 48- 1
at 64. Noisette was the only candidate; he was selected on
December 6, 2006, and he received the 10% pay raise for
first-time entry into a frontline management position.
See Dkt. 45-1 at 14-15;Dkt. 48-1 at 65.
The Peebles Settlement
alleges that his travails involving the St. Petersburg/Tampa
SSA position were due to the role he played in the resolution
of an EEO complaint filed by Sarah Peebles, a trainee in
CID's Chicago field office, almost six months earlier.
Peebles initiated the EEO process in the spring of 2006, when
she contacted EEO specialist Lisa Thomas, alleging that she
was not being given meaningful work assignments or training
opportunities and that she was being subjected to a hostile
work environment. See Dkt. 49-7 at 8. Peebles
complained, in particular, about three of her managers:
Assistant Special Agent in Charge Christopher Pikelis, SSA
Tanya Brewer, and On-the-Job Instructor Scott Lindauer.
See Dkt. 47-12 at 4.
in turn, contacted Tyrone Barney, the DFO with responsibility
for the Chicago office, in March 2006. Id. Barney
then directed Noisette to "look into [Peebles's]
allegations and report his findings back to [him]."
Id. Noisette obtained and reviewed the training
progress reports for all of the new agents in Chicago and in
the neighboring Indianapolis field office. See Dkt.
47-11 at 4. Peebles's training record was blank, which
Noisette concluded indicated that "she was not given the
chance to attend necessary new agent training sessions"
and that "she was not given the same opportunities as
other trainees to perform basic duties, such as conducting an
interview." Id. Noisette, accordingly, reported
to Barney that "it appeared that Ms. Peebles had not
been given an opportunity to succeed and that her allegations
of discrimination and retaliation were well-founded."
called an "all manager meeting with Peebles'
management" in Baltimore on March 26, 2006, to go
"over her complaint and to discuss the possible
resolution of it." Dkt. 47-12 at 5. In attendance were
Barney, Noisette, Thomas, the three managers who were the
subject of Peebles's complaint-Pikelis, Brewer, and
Lindauer-and the Special Agent in Charge of the Chicago
office and the Director of CID's EEO office. Id.
at 5-6. At that meeting, Noisette presented his findings
about Peebles's record and "stated that it appeared
that Ms. Peebles was being treated disparately in comparison
to the other new agents in the Chicago Field Office."
Id.; see also Dkt. 47-11 at 4. Following the
meeting, matters between Peebles and her supervisors
continued to deteriorate. Noisette again obtained
Peebles's records, and advised Barney that Peebles
intended to file a formal EEO complaint. Dkt. 47-11 at 5.
point, Barney, Thomas, and Noisette began working with EEO
specialists at both the CID and IRS agency-wide level to put
together a settlement resolving Peebles's complaint.
Id.; Dkt. 47-12 at 7-8. Barney ultimately entered
into a settlement agreement with Peebles on behalf of CID,
under the terms of which Peebles would be relocated to
another office with all expenses paid; she would not be under
the direct supervision of Pikelis, Brewer, or Lindauer during
her three-year initial training period; all negative
information would be removed from her official personnel
file; Pikelis, Brewer, and Lindauer would be required to
undergo diversity training; and Peebles would withdraw her
pre-complaint. See Dkt. 47-44. Barney executed the
settlement on May 19, 2006. Id. at 6.
Brewer, and Lindauer were distraught about the settlement as
executed. On May 24, 2006, Pikelis emailed John Imhoff, who
was serving as acting Deputy Chief of CID at the time,
see Dkt. 49-3 at 21, to complain about the
settlement agreement, see Dkt. 47-39. Because
Noisette's allegations of retaliation and race
discrimination turn in large part on the motivations of
CID's senior management in their handling of the Peebles
issue from this point forward, the Court will quote
Pikelis's email to Imhoff in full:
I am appealing to you for assistance and guidance with this
matter. I am not sure how much longer you will be in your
present position, and if necessary, have no objection to you
sharing this information with Acting Deputy Chief Riche, or
Chief Jardini. I realize that we enjoy a personal
relationship as well, and am concerned that by sending
you this message, I place you in a difficult spot. You should
know that I would not do this unless it was absolutely
necessary. You should also know that SAC Tichenor has no
knowledge of this communication. SSA Brewer is with me as
this correspondence is crafted.
A few weeks back in Phoenix, I described to you a number of
issues we are experiencing in the Chicago Office with Special
Agents that recently were converted from the Student Trainee
program. One such issues involving Sarah Peebles has
escalated to a point where I believe that not only the
integrity and judgment of myself is under question, but the
integrity and judgment of SSA Tanya Brewer and SA/O[n-the]
J[ob] I[nstructor] Scott Lindauer as well. We believe that
the present handling of this matter presents a serious risk
to the public as well.
You should know that this agreement executed by DFO
Barney was never discussed with any personnel in this
office (with the exception of SA Peebles) prior to its
execution. To be fair, as Acting SAC last week, I did receive
a voice message from DFO Barney this past Friday, where he
advised that he was in the process of reviewing and approving
this settlement agreement which would cause the transfer of
Special Agent Peebles to the Cincinnati Field Office.
Additionally, I was instructed to allow Special Agent Peebles
to attend CPE with that office this week. No additional
details were presented.
For the majority of this week, I am working down in the
Fairview Office. During a range session yesterday afternoon,
I received a message from my Secretary Tamara Ellis advising
that the attached had arrived via fax. I asked her to provide
the original to SAC Tichenor and scan and e-mail the document
to myself and SSA Brewer.
The three of us (myself, SSA Brewer, and SA Lindauer) have
reviewed this document and are concerned with its potential
impact. Although the document clearly states that neither
party is at fault, the three of us are required to take
courses involving diversity training sometime over the next
six months. Additionally, the three of us cannot have any
direct supervision over Special Agent Peebles during her
probationary period which ends during May of 2008. This
unfairly limits the promotional opportunities for the three
of us respective to theCinci ...