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Noisette v. Lew

United States District Court, District of Columbia

September 30, 2016

ANDRE NOISETTE, Plaintiff,
v.
JACOB LEW, Secretary of the Treasury, Defendant.

          MEMORANDUM OPINION

          Randolph P. Moss United States District Judge

         This 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.

         After 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 established.

         I. BACKGROUND

         Because 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.

         A. The St. Petersburg/Tampa SSA Vacancy

         CID is 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.

         On 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.

         Under 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).

         Noisette 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.

         In the 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]."[1] Id.

         On 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.

         Two 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.

         Noisette 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.

         Noisette 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.

         None of 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."[2] 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 at 6.

         According 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.

         Less 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.

         B. The Peebles Settlement

         Noisette 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.

         Thomas, 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." Id.

         Barney 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.

         At that 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.

         Pikelis, 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:

         John -

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 ...

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