United States District Court, District of Columbia
B.B. CRAIG, Plaintiff,
STEVEN MNUCHIN, Secretary, United States Department of the Treasury, Defendant. Re Document No. 33
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, United States District Judge
B.B. Craig, an official at the United States Mint (the
“Mint”), brings this suit against Steven Mnuchin,
in his official capacity as Secretary of the United States
Department of Treasury, alleging violations of Title VII of
the Civil Rights act of 1964 (“Title VII”). Now
before the Court is the Secretary's Motion for Summary
Judgment. See generally Def.'s Mot. Summ. J.
(“Def.'s Mot.”), ECF No. 33. For the reasons
stated below, the Court will grant in part and deny in
Mint, which is a bureau of the United States Department of
Treasury (“Treasury”), is responsible for not
only manufacturing and distributing coins used by the public
in commerce, but also for manufacturing, marketing and
selling collectible (“numismatic”) coins and
investment grade bullion. See Pl.'s Resp. SMF
¶ 1. Within the Mint, marketing and selling of such
products is the responsibility of the Sales and Marketing
Division (“SAM Division”), which is overseen by
the Mint's Associate Director for Sales and Marketing
(“A/D SAM”). See Pl.'s Resp. SMF
¶¶ 7, 13-14.
November 17, 2008, the Mint hired B.B. Craig, an
African-American man, to be its A/D SAM. See
Pl.'s Resp. SMF ¶ 13. In that role, Mr. Craig
reported directly to the Deputy Director of the Mint and was
charged with leading an organization responsible for
generating sales of approximately $500 million annually.
See Dep. B.B. Craig (“Craig Dep.”) at
25:12- 26:5, 32:24-33:9, ECF No. 51-3. Mr. Craig had
“authority to speak and act on behalf of the Mint in
public meetings and private conferences with senior officials
of the  Treasury, top-level Mint management, and
representatives of other agencies of the federal government
and international governments.” Decl. B.B. Craig
(“Craig Decl.”) ¶ 3, ECF No. 40-2. Mr. Craig
also had significant supervisory authority, with
approximately ninety-four full-time equivalent employees
allotted to the SAM Division. See Craig Decl. ¶
assuming the A/D SAM position, Mr. Craig also became a member
of the Senior Executive Service (“SES”), the
Federal government's executive management core. Pl.'s
Resp. SMF ¶¶ 6-7, 13. Members of the SES are
“charged with executive management of key governmental
programs, divisions, offices, and functions within Federal
executive branch agencies, such as the Mint.” Pl.'s
Resp. SMF ¶ 8. However, they are governed differently
than other federal employees and can, at the discretion of
the agency, be reassigned to any SES position within an
agency for which they are qualified or be
“detailed” to a position with unclassified duties
within the agency or to another agency for up to 240 days.
See Pl.'s Resp. SMF ¶¶ 10-12;
Pl.'s Opp'n, Ex. 16 at 9, 11-12, ECF No 41-14.
case primarily concerns Mr. Craig's removal from his
position as A/D SAM, his placement into other inferior roles
at the Mint, and Defendant's refusal to reassign him to a
position that was commensurate with the A/D SAM position. Of
central importance to all of these claims is Mr. Craig's
performance on two critical projects during the 2012 fiscal
year rating period (“FY 2012”)-the Order
Management System Project and the Comprehensive Numismatic
Marketing Plan and Advertising Spend Request. The Secretary
claims that Mr. Craig's inadequate performance on these
two projects set into motion a series of employment actions
that Mr. Craig is now alleging were discriminatory and
retaliatory. Indeed, Defendant argues that Mr. Craig's
performance justified Mr. Craig's FY 2012 performance
evaluation, his removal from the A/D SAM position, and
prompted Defendant to find another position at the Mint that
was a “better fit” for Mr. Craig. Ultimately, the
“better fit” that Defendant identified was a
detail to a position called “Executive Lead, ”
which, unlike Mr. Craig's previous position, had
unclassified duties and no supervisory authority. Although
Mr. Craig remained in the Executive Lead position beyond the
240-day limit, he was eventually reassigned to a permanent
SES position as Associate Director of Environment, Safety,
and Health (“A/D ES&H”), which Mr. Craig
argues is only marginally better than the “Executive
Lead” position and was far from commensurate with his
former A/D SAM position.
The OMS Project
the projects that Mr. Craig worked on during the FY 2012
rating period was the Order Management System Project
(“OMS Project” or “the Project”).
See Pl.'s Resp. SMF ¶ 22-23. This Project
was undertaken by the SAM Division and the Mint's
Information Technology Division (“IT”).
See Pl.'s Resp. SMF ¶ 22; Pl.'s
Statement Genuine Issues ¶ 16, ECF No. 40-1. The
Mint's goal was to overhaul, upgrade, and revise the
Mint's existing online ordering system that the public
used to purchase Mint products. See Pl.'s Resp.
SMF ¶ 22. Between SAM and IT, SAM was responsible for
specifying its needs and how the system should function,
while IT was responsible for delivering the system.
See Dep. Beverly Babers (“Babers Dep.”)
at 120:5-121:13, ECF No. 51-1 (SAM is responsible for
identifying “what we need and this is how we need it to
work and this is why it important to our customers, ”
while IT is responsible for presenting “here is how you
do it and here are your options for doing it.”); Craig
Dep. at 84:1-5 (“So the way it was designed, IT was the
lead of the [P]roject. I was the customer, but I had say-so
and I was supposed to give up resources to make the [P]roject
an accomplishment.”). However, this was to be a highly
collaborative process between the two departments.
See Babers Dep. at 121:13-15 (“So it's got
to be really, really collaborative. And they are both [SAM
and IT] both very critical to the situation.”).
Overseeing the Project was an Executive Steering Committee
(“ESC”), which was to provide support, guidance,
and resources to ensure that the OMS Project was a success.
See Dep. Richard Peterson (“Peterson
Dep.”) at 76:10-20, ECF No. 50-2. Both Mr. Craig and
the Mint's Chief Information Officer (“CIO”)
served on this committee. See Peterson Dep. at
75:14-17; accord Pl.'s Resp. SMF ¶ 51.
Project was initiated at the beginning of FY 2012, but by
Spring of 2012, problems had emerged. Richard Peterson, the
Deputy Director of the Mint, recalled that by early April, he
felt that the “[P]roject was not on track” and
knew “the [P]roject was late and behind budget.”
Peterson Dep. at 79:17-20. Thus, in May 2012, Mr. Peterson
made the decision to temporarily halt the OMS Project and
retain the Mitre Corporation (“Mitre”) to conduct
an analysis of the OMS Project's continued viability.
See Pl.'s Resp. SMF ¶ 31.
this same time, Mr. Peterson hired Beverly Babers. Earlier
that year Mr. Peterson had decided to seek additional
executive management resources for the Mint. See
Pl.'s Resp. SMF ¶ 32. Thus, in April and May of
2012, Mr. Peterson interviewed and ultimately hired Ms.
Babers to be the Mint's Chief Administrative Officer.
See Pl.'s Resp. SMF ¶ 33. Before she began
working at the Mint, however, Mr. Peterson asked Ms. Babers
to attend a meeting with Mitre and other Mint executives to
discuss the OMS Project. See Pl.'s Resp. SMF
¶ 34. At that meeting, Mitre described its findings and
recommended that the OMS Project be temporarily suspended.
See Pl.'s Resp. SMF ¶ 35; Babers Dep. at
106:1-11. Ms. Babers testified that her understanding of
Mitre's findings from that meeting was that “there
was lack of . . . governance and oversight that contributed
to the failure of the [P]roject and, specifically, [that] the
IT and Sales and Marketing Departments had failed to
effectively collaborate.” Babers Dep. at 107:14- 19.
Mitre found systemic and programmatic deficiencies in the OMS
Project, one of which was “governance.”
See Pl.'s Resp. SMF ¶ 36. One problem that
Mitre identified was the Project's “shifting
program accountability and decision making.” Def.'s
Mot., Ex. 15 at Bates No. 002548, ECF No. 35-3. According to
Mitre, while the documented governance processes indicated
that the CIO was “responsible and accountable for
program delivery, ” it observed that the ESC
“[did] not operate in accordance with its documented
roles and responsibilities and [was] acting in a de facto
decision-making capacity.” Def.'s Mot., Ex. 16 at
7, ECF No. 35-4. So while, “program accountability
[resided] with the [CIO],  decision-making [was] diffused
via the ESC.” Def.'s Mot., Ex. 16 at 7. In
addition, Mitre identified “weak communications,
” “conflicting assumptions about program scope
and intent, ” and “internal discord.”
Pl.'s Resp. SMF ¶¶ 36, 38; see also
Def.'s Mot., Ex. 15 at Bates No. 002548. It concluded
that this “infighting [was] endangering pursuit of [the
Mint's] goal.” Pl.'s Resp. SMF ¶¶ 36,
38; see also Def.'s Mot, Ex. 15 at Bates No.
002548. Thus, Mitre recommended that the Mint make
improvements to its “program governance and management
structures, methods, and disciplines, ” Pl.'s Resp.
SMF ¶ 37, but also that it “slow down” the
Project until “certain systemic improvements in
governance and management of the [P]roject were
incorporated.” Pl.'s Resp. SMF ¶ 39.
Craig does not dispute that Mitre made such findings or that
they were discussed during the meeting with Ms. Babers.
However, according to Mr. Craig, the failure of the Project
had nothing to do with him or the SAM Division, but was,
instead, attributable to the CIO who was responsible for both
the budget and the timeline for the OMS Project. See
Craig Dep. at 84:13-15. He also claims that it was the CIO
that was hostile towards other members of the OMS Project
team and who refused to share information about the budget,
status, or progress of the Project with Mr. Craig.
See Craig Dep. at 50:2-52:7. And even though Mr.
Craig brought these issues to Mr. Peterson's attention,
he claims that Mr. Peterson did nothing to address them.
See Craig Dep. at 153:14-154:18.
Babers officially reported for duty at the Mint in July 2012.
See Pl.'s Resp. SMF ¶ 44. Once she arrived,
Mr. Peterson shifted the reporting lines of Mr. Craig and
other executives as part of an organizational realignment.
See Pl.'s Resp. SMF ¶ 45. From that point
forward, Mr. Craig and others, including the CIO, were to
report directly to Ms. Babers who, in turn, reported to Mr.
Peterson. See Pl.'s Resp. SMF ¶ 45;
Def.'s Mot., Ex. 2, ECF No. 34-2. After joining, Ms.
Babers took several steps to improve the project governance
of the OMS Project. See Pl.'s Resp. SMF
¶¶ 48-51. For example, an Executive Lead was
assigned to the Project and an official from the
Treasury's Office of the Chief Information Officer was
added to assist on technical aspects of the Project.
See Pl.'s Resp. SMF ¶¶ 48-49. The
Project was ultimately reconstituted as “OMS II”
and, later, both Mr. Craig and the CIO were removed from the
ESC. See Pl.'s Resp. SMF ¶¶ 50-51.
The Marketing Plan
addition to the OMS Project, Mr. Craig was responsible for
developing the “mission-critical” Comprehensive
Numismatic Marketing Plan and Advertising Spend Request
(“Marketing Plan” or “the Plan”).
Pl.'s Resp. SMF ¶ 52. At that time, the Mint was
looking for ways to halt or reverse the years-long decline in
the numismatic customer base and revenue for numismatic
product sales. See Pl.'s Resp. SMF ¶ 53. To
do this, it wanted to engage in advertising, but it first
needed approval from Treasury to obtain the funds.
See Dep. Sherry Suggs (“Suggs Dep.”) at
54:7-55:5, ECF No. 51-8. Thus, Mr. Craig and his team were
responsible for developing a marketing plan to support their
request for funds. See Suggs Dep. at 54:7-55:5. This
Marketing Plan would explain how the funds were to be spent,
the kinds of marketing and advertising the Mint wanted to
pursue, what those efforts were expected to produce in terms
of revenue and customers, and would include supporting
evidence for the various recommendations. See Id.
Although Mr. Craig was responsible for the Plan, Ms. Babers
felt that he left much of the oversight for the Plan to his
Deputy. See Def.'s Mot., Ex. 14 at Bates No.
00178 (Mr. Craig “left primary oversight of the plan to
his deputy”), ECF No. 34-12; see also Babers
Dep. at 174:16-21 (“it was my understanding from [Mr.
Craig] that [his deputy] had the more technical [marketing]
experience and in fact that she was the one who was within
Sales and Marketing leading this . . . marketing plan
the Marketing Plan first began in FY 2011 and continued
through FY 2012. During that time, the Plan received both
praise and criticism. For example, in June 2012, the
Mint's Chief Counsel reviewed a draft of the Marketing
Plan and said it was “the best piece of work in terms
of a marketing plan that [he] [had] seen in some time”
and told Mr. Craig “Nice Job!” Pl.'s
Opp'n, Ex. 19, ECF No. 41-16. Others, however, noted
issues. For example, the Mint's Director of Public
Affairs wrote Mr. Peterson and Ms. Babers a lengthy email in
July 2012 in which he raised several substantive questions
concerning the Plan and stated his belief that the Plan
outlined or identified many problems, but failed to provide
many good solutions or recommendations. Pl.'s Resp. SMF
¶ 58; Def.'s Mot., Ex. 22, ECF No. 34-17.
August 23, 2012, there was a meeting among various Treasury
and Mint officials to discuss the Marketing Plan.
See Def.'s Mot., Ex. 23, ECF No. 34-18.
Following that meeting, Treasury's Assistant Secretary
for Management sent an email to Mr. Craig and others,
including the Treasurer of the United States, Mr. Peterson,
and Ms. Babers, in which she raised questions about the
Plan's recommended new customer base, the Plan's
ability to capture new customers, the requested spend amount,
and the Plan's return on investment calculation.
See Pl.'s Resp. SMF ¶ 58; Def.'s Mot.,
Ex. 23 Indeed, she noted that some of the Plan's
arguments were not sufficiently “convincing” or
“compelling” Def.'s Mot., Ex. 23.
same time, however, there was a draft action memorandum that
was going through the Mint clearance review process.
See Def.'s Mot., Ex. 24, ECF No. 34-19;
Pl.'s Resp. SMF ¶ 59. The memorandum was a draft of
the formal funding request from the Mint to the Treasury and
summarized the Marketing Plan. See Def.'s Mot.,
Ex. 24. According to Mr. Craig, Ms. Babers put this
memorandum together using excerpts of the SAM Division's
Marketing Plan. See Craig Decl. ¶ 24. Although
the Mint's Executive Secretary and its Chief Counsel each
approved the memorandum on August 22 and 23 respectively, Ms.
Babers and Mr. Peterson did not sign off on it. See
Def.'s Mot., Ex. 24. Thus, the memorandum was never
presented to Treasury. See Pl.'s Resp. SMF
deposition, Ms. Babers recalled that, at some point in August
or September, Mr. Craig, Ms. Babers, and Mr. Peterson had a
meeting with the Treasurer where they attempted to
“instill confidence” that they “had a plan
of action that was credible and baked for moving forward with
marketing and advertising” in the event Treasury
approved their spend request. Babers Dep. at 164:2-165:1.
According to Ms. Babers, that meeting “went
poorly” and it became clear from the Treasurer that the
Marketing Plan was not “going well.” Babers Dep.
at 164:18, 165:12-15.
neither the Treasurer nor the Treasury Deputy Secretary ever
approved a Marketing Plan in FY 2012, see Pl.'s
Resp. SMF ¶ 60, and Ms. Babers came to believe that Mr.
Craig had been unsuccessful in his efforts to deliver an
acceptable Marketing Plan, see Def.'s Mot., Ex.
10 at Bates No. 00204, ECF No. 34-10; Def.'s Mot., Ex 14
at Bates No. 00178.
FY 2012 Performance Appraisal
performance objectives, deliverables, and standards that SES
members are expected to meet over the course of a particular
rating year are memorialized in a document called an
Executive Performance Agreement (“EPA”), which is
issued to each SES member annually. See Pl.'s
Resp. SMF ¶ 23. Mr. Craig's FY 2012 EPA listed the
OMS Project as a critical performance deliverable and
therefore it became “Commitment Element 4” of Mr.
Craig's evaluations. See Pl.'s Resp. SMF
the course of the 2012 fiscal year, Mr. Craig received both a
mid-year review from Mr. Peterson and an end-of-year review
from Ms. Babers. The available rating options for a Treasury
SES member, such as Mr. Craig, in ascending order, are:
Unsatisfactory, Minimally Successful, Fully Successful,
Exceeded, and Outstanding. See Pl.'s Resp. SMF
¶ 72; Pl.'s Opp'n, Ex. 11, ECF No. 41-11. Mr.
Peterson conducted a mid-year review of Mr. Craig in June
2012. Pl.'s Resp. SMF ¶ 43; Pl.'s Opp'n, Ex.
10, ECF No. 41-10. He rated Mr. Craig as “Fully
Successful” on “Commitment Element 4, ”
which related to Mr. Craig's work on the OMS Project, and
“Exceeded” in all other categories. See
Pl.'s Resp. SMF ¶ 43; Pl.'s Opp'n, Ex. 10.
This resulted in an overall rating for Mr. Craig of
“Exceeded.” See Pl.'s Opp'n, Ex.
November 8, 2012, Ms. Babers met with Mr. Craig to issue his
FY2012 performance rating. Pl.'s Resp. See SMF
¶ 71. Like Mr. Peterson, Ms. Babers gave Mr. Craig a
“fully successful” rating on the OMS Project, but
unlike Mr. Peterson, she also evaluated Mr. Craig as
“fully successful” in the areas of “Program
Management” and “Customer Service &
Collaboration.” See Pl.'s Resp. SMF ¶
73; Pl.'s Opp'n, Ex. 11. In all other areas Ms.
Babers rated Mr. Craig as “Exceeded.”
See Pl.'s Opp'n, Ex. 11. Once combined,
these grades resulted in Mr. Craig's overall rating of
“Fully Successful.” See Pl.'s
Opp'n, Ex. 11. In the narrative assessment of Mr.
Craig's performance, Ms. Babers specifically cited the
unsuccessful OMS Project and Marketing Plan as bases for the
rating. See Pl.'s Resp. SMF ¶ 74 When
Plaintiff sought a higher-level review of his rating from an
official outside of Ms. Babers's chain of command, that
official sustained Ms. Babers's rating, noting that she
“did not find any documentation to change the ratings
for Program Management, Customer Service and Collaboration,
or Commitment Element 4.” Def.'s Mot., Ex. 27, ECF
No. 34-22; see also Pl.'s Resp. SMF ¶ 75.
Craig argues that Ms. Babers's failure to rate him at the
“Exceeded” level resulted in him not receiving an
SES performance bonus for FY 2012. See Pl.'s
Opp'n at 15-16. Although Mr. Craig had previously
received SES performance bonuses every other year for which
he had been at the Mint,  see Pl.'s Opp'n, Exs.
2-3, ECF Nos. 41-4 & 41-5, Ms. Babers did not recommend,
and Mr. Craig did not receive, an SES performance bonus for
the FY2012 rating period. See Pl.'s Resp. SMF
¶ 80. According to Office of Personnel Management and
Treasury-wide guidance, SES members are not guaranteed a
bonus regardless of their performance level. See
Pl.'s Resp. SMF ¶ 81. Furthermore, Treasury-wide
guidance advises agencies to make “meaningful
distinctions” among SES members' performance and
notes that “[a]ll bonuses are discretionary, they are
not required or guaranteed, regardless of rating
level.” Pl.'s Resp. SMF ¶ 83.
Removal from A/D SAM, Detail to Executive Lead, and
Reassignment to A/D ES&H
September 25, 2012, a few days before the end of the FY 2012
rating year and shortly after the last Marketing Plan
briefing with the Treasurer, Ms. Babers and Mr. Craig had a
meeting. See Pl.'s Resp. SMF ¶¶ 62-63;
Babers Dep. at 164:2-165:1. At that meeting, Ms. Babers
addressed concerns relating to the Marketing Plan and raised
criticism of Mr. Craig's performance as A/D SAM.
See Babers Dep. at 164:2-165:1; Craig Decl. ¶
9. Ms. Babers observed that the Marketing Plan was not
“going well” and told Mr. Craig she believed
marketing did not appear to be his strong suit. See
Babers Dep. at 165:7-18. Mr. Craig explained that, in fact,
he was “a manufacturing guy” and the two had a
discussion regarding his experience in that area.
See Babers Dep. at 166:18-19; 169:4-11; 173:13.
Thus, the two began discussing the possibility of finding
another position at the Mint that would be a “better
fit” for Mr. Craig. See Pl.'s Resp. SMF ¶
66; Babers Dep. at 166:22-67:2, 172:10-73:1; Craig Decl.
Babers and Mr. Craig had further discussions between
September and December 2012. See Def.'s Mot.,
Ex. 14 at Bates No. 00181; Babers Dep. at 198:2-202:1.
According to Ms. Babers, she and Mr. Craig worked together,
seeking to identify an alternative role based on Mr.
Craig's stated interests and strengths. See
Def.'s Mot., Ex. 14 at Bates No. 00181. Those discussions
eventually came to center on the concept that would later be
described as the “Executive Lead” role.
See Def.'s Mot., Ex. 14 at Bates No. 00187;
Babers Dep. at 198:2-202:1. That position would entail
“long-range process planning, ” the goal of which
was to identify ways of the Mint could be more efficient in
manufacturing and bringing its numismatic products to market.
See Pl.'s Resp. SMF ¶¶ 100-01;
Def.'s Mot., Ex. 14 at Bates No. 00181 Babers Dep. at
198:2-202:1. But, according to Mr. Craig, during the few
conversations between the two, they did not discuss
“specifics about what [he] would be doing in the
Executive Lead position” nor did Ms. Babers ever tell
him how much staff he would have, where his position would
fall within the organization, or what budget he would be
working with. Craig Decl. ¶ 15.
October 26, 2012, before being detailed to the Executive Lead
position, Mr. Craig filed an informal EEO complaint.
See EEO Counseling - Intake Information (“EEO
Compl.”) at Bates No. 00098, ECF No. 12-18; Pl.'s
Resp. SMF ¶ 86. In it, he made various allegations of
reprisal and discrimination based on his race and sex.
See generally EEO Compl. He also described the
September 25 meeting with Ms. Babers and stated that Ms.
Babers had informed him that they “needed to discuss
what he wanted to do in the future, as it was ‘time for
them to find a better fit for him' than his current
position.” EEO Compl. at Bates No. 00109. It also
states that she “suggested that she would find a
position within the Mint that would last about one year, and
which would allow him to transition out of SAM and work on
‘operational issues.'” EEO Compl. at Bates
No. 00109. Mr. Craig claims that he “did not know what
would come of the September 25, 2012 meeting, ” but
that he initiated the EEO process “as a precautionary
measure to ensure that the Mint could not come back later and
claim that [he] had missed a filing deadline.” Craig
Decl. ¶ 10. Ms. Babers learned of Mr. Craig's EEO
activity on December 5, 2012 and expressed to Mr. Craig that
she understood Mr. Craig had filed an EEO complaint and
indicated that she was amenable to mediation. See
Pl.'s Resp. SMF ¶¶ 87-88.
days later, on December 11, 2012, Mr. Peterson issued a
Mint-wide email announcing several leadership changes at the
Mint. Pl.'s Resp. SMF ¶¶ 90-91. First, it
announced that Mr. Craig would leave his role as A/D SAM and
would become the “Executive Lead” for the
Comprehensive Production Schedule and Plan Project.
See Pl.'s Resp. SMF ¶ 90; Def.'s Mot.,
Ex 31, ECF No. 34-25. The email also announced that Jon Marc
Landry, a white SES member with no prior EEO activity, would
discontinue his role as Acting Associate Director of
Manufacturing (“Acting A/D Manufacturing”) and
would take over, on an acting basis, the A/D SAM position
that Mr. Craig was vacating. See Pl.'s Resp. SMF
¶¶ 20, 92, 94; Def.'s Mot., Ex 31. Dave Croft,
another white SES member with no prior EEO activity who had
been overseeing the Denver manufacturing facility, would
assume Mr. Landry's former position as Acting A/D of
Manufacturing. Pl.'s Resp. SMF ¶¶ 21, 94.
Although the Mint's Human Resources (“HR”)
department would ordinarily have been consulted about an SES
member's detail, neither the head of HR nor the HR
representative responsible for SES executives at the Mint
learned about Mr. Craig's detail until the December 11,
2012 announcement was made. See Dep. Lisa Nicholson
(“Nicholson Dep.”) at 63:12-70:4, ECF No. 51-6;
Dep. Anita Fogan (“Fogan Dep.”) at 30:22-32:6,
ECF No. 51-5.
Craig's detail to the Executive Lead position began
effective January 3, 2013. Pl.'s Resp. SMF ¶ 91.
This position had no occupational code, classified grade
level, or position description and was therefore subject to
the 240-day detail restriction for SES executives.
See Nicholson Dep. at 60:1-62:9, 68:13-70:4,
80:4-83:21, 94:18-95:4. In that role, unlike his former A/D
SAM position, Mr. Craig had no staff or administrative
support and he spent a significant amount of time entering
data and performing tasks that would typically be performed
by a GS-5 or GS-7 employee. Craig Decl. ¶ 14. This
position did not exist either before or after Mr. Craig
occupied the role and the projects that he worked on were not
transferred to anyone or any department after he left. Craig
Decl. ¶ 14. However, Mr. Craig's detail in the role
was extended several times through the 2013 fiscal year and
into the beginning of the 2014 fiscal year, which caused Mr.
Craig's detail to extend beyond the 240-day limit.
See Pl.'s Resp. SMF ¶ 103; Nicholson Dep.
February 2014, a serious, near-fatal accident occurred at the
Mint's Denver manufacturing plant, where one employee was
injured while operating a fork-lift. Pl.'s Resp. SMF
¶ 111. Thereafter, Mr. Peterson and Ms. Babers decided
to appoint Mr. Craig to oversee the administrative
investigation of the accident, conduct an analysis and review
of the circumstances and cause, and generate a final report
with recommendations for Mint-wide safety improvements.
Pl.'s Resp. SMF ¶ 112. Mr. Craig performed this work
for several months and ultimately generated a report
recommending changes in safety protocols, which was well-
received by Mint leadership. Pl.'s Resp. SMF ¶¶
113-14. As a result of the incident and Mr. Craig's work,
Mr. Peterson and Ms. Babers decided to create an SES-level
position to oversee safety throughout the Mint. Pl.'s
Resp. SMF ¶ 114.
31, 2014, it was announced that Mr. Craig would assume a
position entitled Associate Director of Environment, Safety,
and Health (“A/D ES&H”). See
Def.'s Ex. 41, ECF No. 34-35. Before Mr. Craig took on
this role, that same work was being performed by a GS-14
employee who had the same resources and reporting structure
that Mr. Craig now has. Craig Dep. at 183:1-24. Indeed, Mr.
Craig himself reports to another Associate Director at the
Mint and is the only Associate Director to do so. Craig Dep.
at 227:6-8. He is also not invited to any of the high-level
meetings that he used to attend when he was A/D SAM. Craig
Dep. at 229:1- 21. Furthermore, he is the only Associate
Director who does not have a GS-15 in his organization. Craig
Dep. at 227:4-228:23.
the EEO process, Mr. Craig requested that he be returned to
the A/D SAM position or to be placed in a comparable
position, which included the Associate Director of
Manufacturing (“A/D Manufacturing”). See
Pl.'s Opp'n, Ex. 14, ECF No. 41-13. Craig was never
returned to his former position nor was he ever selected for
the A/D Manufacturing position.
A/D Manufacturing and Acting A/D SAM Positions
explained above, on December 11, 2012, the same day that it
was announced that Mr. Craig would become the
“Executive Lead, ” it was also announced that Mr.
Landry, who was serving as Acting A/D Manufacturing at the
time, would leave that position and become the Acting A/D
SAM. Pl.'s Resp. SMF ¶¶ 20, 92, 94. Ms. Babers
purportedly selected Mr. Landry due to his effectiveness
running the manufacturing-side of the Mint and his
understanding of the SAM Division and the numismatic
business. See Babers Dep. at 217:1-10; Peterson Dep.
at 170:9-17. This meant, however, that someone else would
need to fill Mr. Landry's former position as Acting A/D
Manufacturing position was responsible for overseeing all
four of the Mint's manufacturing facilities in the United
States. Def.'s Mot. at 3-4; see also Def. Ex. 2.
Mr. Peterson announced that Mr. Croft, who was in charge of
the Denver plant, would take over as Acting A/D
Manufacturing. Pl.'s Resp. SMF ¶¶ 21, 92, 94.
The record is unclear, however, as to how or why Mr. Peterson
selected Mr. Croft for that position. Mr. Croft testified
that he had never expressed any interest in the position, but
Mr. Peterson had recruited him for it nonetheless. Dep. David
Croft (“Croft Dep.”) at 34:2-9, ECF No. 51-4. And
even though it was inconsistent with agency policy and
practice, Mr. Peterson allowed Mr. Croft to remain at his
duty station in Denver throughout the course of his 18-month
acting assignment while performing two-week rotations to the
headquarters office in Washington, D.C. Croft Dep. at
34:11-35:18; Nicholson Dep. at 152:21-153:9.
August 2014, Mr. Peterson began considering assigning someone
to the A/D Manufacturing role on a permanent basis. Pl.'s
Resp. SMF ¶ 119. To fill the position, Mr. Peterson did
not undertake any competitive hiring process, but instead
considered only two possible candidates-Mr. Landry and Mr.
Croft. See Pl.'s Resp. SMF ¶ 119. Mr.
Landry and Mr. Croft both had extensive experience in
manufacturing, both at the Mint and elsewhere. Pl.'s
Resp. SMF ¶ 120. Indeed, Mr. Landry and Mr. Croft had,
for several years, managed the Mint's Philadelphia and
Denver manufacturing facilities, respectively, and each had
previously served as Acting A/D Manufacturing for a period of
approximately eighteen months. Pl.'s Resp. SMF ¶
120. Furthermore, they both had significant manufacturing
experience in the automotive industry prior to joining the
Mint. See Peterson Dep. at 189:13-15; Def.'s
Mot., Ex. 44, ECF No. 35-7. Mr. Croft at that time was still
serving as the Acting A/D Manufacturing and Mr. Peterson
considered him to be doing an “outstanding job”
in that role. Peterson Dep. ...