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Salak v. Pruitt

United States District Court, District of Columbia

September 30, 2017

DANIEL J. SALAK, Plaintiff,
E. SCOTT PRUITT, in his official capacity as Administrator of the Environmental Protection Agency, Defendant.



         Plaintiff Daniel Salak-an employee of the Criminal Investigations Division (“CID”) of the Environmental Protection Agency (“EPA” or “Defendant”)-has filed the instant action against the EPA under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17.[1] Salak alleges that the EPA unlawfully retaliated against him when his supervisors took affirmative steps to reassign him from CID's Baltimore/Ft. Meade office in Ft. Meade, Maryland, to CID's regional office in Seattle, Washington, immediately after Salak engaged in an activity that Title VII protects. (See Compl. ¶¶ 1, 20.) Specifically, Salak alleges that the day after he complained that his supervisor's refusal to approve his request to use sick leave to care for his wife and newborn child was “disparate treatment” of him as a “birth father” (id. ¶ 40), he was informed that he was being transferred to the Seattle office (see Id. ¶¶ 40-44). This announced cross-country reassignment plan was eventually cancelled (see Def.'s Statement of Mat. Facts (“Def.'s Statement”), ECF No. 19-3, ¶ 71; Pl.'s Resp. to Def.'s Statement of Mat. Facts & Pl.'s Statement of Genuine Issues (“Pl.'s Statement”), ECF No. 20-1, at 35 ¶ 71), but Salak contends that the threat of relocation under the circumstances presented here constituted actionable retaliation nevertheless.[2]

         Before this Court at present is the EPA's motion for summary judgment. (See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 19; Def.'s Mem. in Supp. of Mot. for Summ. J. (“Def.'s Mem.”), ECF No. 19-2.) Among other things, the agency argues that the evidence fails to demonstrate that “there is [any] causal connection between the claimed adverse action and [Salak's] . . . protected activity.” (Def.'s Mem. at 15; see also Def.'s Reply in Supp. of Mot. for Summ. J. (“Def.'s Reply”), ECF No. 32, at 8 (characterizing Salak's inability to “establish causation” as the “[m]ost fatal” defect in his claim).) For the reasons explained below, this Court agrees. In short, because the record clearly establishes that the EPA's decision to transfer Salak was made prior to Salak's invocation of his rights under Title VII, no reasonable jury could find that the agency decided to reassign Salak to Seattle, or took steps to implement that course of action, because of his protected activity. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). Consequently, the EPA's motion will be GRANTED, and summary judgment will be entered in favor of Defendant on all of Salak's claims. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Basic Facts[3]

         Salak began working for the EPA in 2002; he served as a Special Agent in CID's resident office in Baltimore/Ft. Meade (which is in Maryland) at all times relevant to this case. (See Compl. ¶ 20.)[4] “CID is one component of the Office of Criminal Enforcement Forensics and Training . . . within EPA's Office of Enforcement and Compliance Assurance[, ]” and “[i]t is responsible for conducting investigations into significant violations of environmental crimes including the Clean Air Act and the Clean Water Act, and coordinating with other federal agencies, the Department of Justice, and Assistant United States Attorneys in prosecuting criminal violations.” (Id. ¶ 22.) The Baltimore/Ft. Meade office is a “satellite office” of a CID region that is headquartered in Philadelphia, Pennsylvania. (Id. ¶ 1.) Salak worked at the Baltimore/Ft. Meade office independently, with supervision coming from CID personnel at the regional headquarters in Philadelphia. (See Def.'s Statement ¶¶ 7-10.)[5]

         1. Salak's Supervisors Decide To Transfer Him To An Office Where There Is More Supervision

         The saga that brings the parties before this Court apparently began in conjunction with a dispute between Salak and his second-line supervisor-Special Agent in Charge (“SAC”) David Dillon-regarding whether Salak was entitled to use accumulated sick leave to care for his wife and newborn child after the child was born prematurely. In September of 2009, Salak notified Dillon and his other immediate supervisor (Assistant Special Agent in Charge (“ASAC”) Christian Spangenberg) that he intended to use his accumulated sick leave as soon as the child was born, as he believed was his right under the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (“FMLA”). (See Compl. ¶¶ 26-27.) When the child was born unexpectedly one month later, Salak informed Spangenberg that he would be out of the office on FMLA leave. (See Id. ¶ 28.) When Salak returned to work following the period of leave, he and Dillon clashed throughout December of 2009 concerning whether the leave time Salak had taken would be deemed approved, or whether he would have to use other annual leave to cover the absence retroactively or take leave without pay. (See Id. ¶¶ 29, 31-36.) Dillon retroactively cancelled all but four days of Salak's paid sick leave, and also-over Salak's objections-rescinded Salak's temporary detail to the CID resident office in Syracuse, New York. (See Id. ¶¶ 36-37).

         A series of related meetings and communications ensued, some of which were with Salak present, and with this FMLA dispute on full display. (See, e.g., U.S. Office of Special Counsel Draft Report (“OSC Draft Report”), Ex. 4 to Pl.'s Statement, ECF No. 20-6, at 5 (at a staff meeting on January 5, 2010, Dillon “emphasized to [Salak and other] agents the importance of following the chain of command” and Salak “asked SAC Dillon what he should do if he had a problem with SAC Dillon and wanted to file a grievance” under the FMLA); see also Compl. ¶ 38 (Salak “informed” Dillon during the January 5, 2010, staff meeting “that he would be filing a grievance” under the FMLA “over Mr. Dillon's continued denial of his sick leave requests”).) Other contacts involved various agency supervisors and focused on Dillon's characterizations of Salak's general insubordination. (See OSC Draft Report at 5 (after learning on January 5, 2010, that Salak had attempted to arrange a temporary detail for himself in another CID region without Dillon's knowledge or approval, Dillon called CID Deputy Director Douglas Parker to complain that Salak “[i]s acting as an ‘independent operator, '” and to say that they “‘gotta do something'” because Salak's “behavior need[s] to stop”); see also Id. (Dillion emailed Parker, ASAC Spangenberg, and CID counsel Laura Fentonmiller to assert that Salak “thinks he is above everyone else and can do whatever he pleases to get whatever he wants[, ]” and had “circumvent[ed]” the “Chain of Command”).) The record shows that Dillon's complaints about Salak's performance stemmed at least in part from Dillon's conclusion that Salak had “fail[ed] to demonstrate the ability to work independently such that he should [not] remain in a resident office without day-to-day supervision[, ]” and had shown a “pattern of exercising poor judgment as a Special Agent” which “dictat[ed] [the need for] closer supervision[.]” (Mem. from Dillon to Barnes (Jan. 11, 2010) (“Final Transfer Mem.”), Ex. F to Def.'s Statement, ECF No. 19-10, at 2; see also Id. at 3 (identifying specific examples of Salak's “questionable decisions[, ]” including his “plan[] to do [a] consent search with no operations plan as required by regulations”).)

         Significantly for present purposes, the record evidence demonstrates that Dillon specifically suggested either “reassigning” Salak or “issuing him a letter of reprimand” as of January 5, 2010, and that Dillon actually “began putting together paperwork in support of . . . Salak's reassignment” on that date. (OSC Draft Repot at 5.) Additionally, Dillon's complaints about Salak kicked off a flurry of reassignment-related activity that continued throughout the week of January 5th. For example, on January 6th, Spangenberg sent Dillon a draft memorandum “to address the issue of . . . Salak being re-assigned to the Philadelphia Area Office.” (Email from Spangenberg to Dillon (Jan. 6, 2010) (“Draft Transfer Mem.”), Ex. 5 to Pl.'s Statement, ECF No. 20-7, at 3.) In this memorandum, which was drafted on Dillon's behalf, Spangenberg stated that the primary reason for the proposed transfer was to provide Salak with the “immediate and/or direct supervision” that he lacked in the Baltimore/Ft. Meade office, and Spangenberg “ask[ed] that . . . Salak be re-assigned with[] haste in order to bring command and control to his daily routine and provide the leadership he sorely needs.” (Id.) Spangenberg also specifically recommended that Salak be reassigned to Philadelphia-the regional headquarters-but stated that he “support[ed] other possible duty location assignments [beyond the Philadelphia office] based on the needs of the Division.” (Id.)

         CID management continued revising the draft reassignment memorandum the following day (see Emails dated Jan. 7, 2010 (“Jan. 7 Emails”), Ex. 6 to Pl.'s Statement, ECF No. 20-8, at 2-7), and Dillon wrote that he wanted to inform Salak of the planned transfer the following Monday, January 11, 2010 (see Id. at 6). Deputy Director Parker also sent an email to Dillon and Spangenberg, to “follow up [on] our discussions over the past months regarding . . . Salak's need for direct supervision in an area office (that needs additional staffing), ” and to express his “support [for] such a re-assignment[.]” (Email from Parker to Dillon (Jan. 8, 2010) (“Jan. 8 Parker-Dillon Email”), Ex. 7 to Pl.'s Statement, ECF No. 20-9, at 2.) Parker's email further asked Dillon to “finalize and send a memo to [CID] Director [Becky] Barnes requesting consideration for [the transfer]” so that they could “work to move forward” (id.), and Parker also reached out to Barnes directly, saying that he wanted to “talk with [her] . . . re[garding] the possible re-assignment of Salak to an area office where he could get appropriate supervision.” (Email from Parker to Barnes (Jan. 8, 2010) (“Jan. 8 Parker-Barnes Email”), Ex. D to Def.'s Statement, ECF No. 19-8, at 2). Parker added that he had already discussed the transfer with others, and that Dillon wanted to “meet with Salak and advise him [of the reassignment], if approved, by next Friday[, January 15, 2010].” (Id.)

         The following week-on January 11, 2010-Dillon sent a final, signed memorandum to Parker and Barnes in which he recommended that Salak “be immediately re-assigned to the Philadelphia Area Office, and then permanently re-assigned to an Area Office with the need for another agent.” (See Final Transfer Mem. at 2.)[6] Then, on the same day that this final transfer memorandum was transmitted to CID leadership, Spangenberg contacted Salak to arrange the aforementioned meeting with Dillon in Philadelphia on January 15, 2010. (See Emails dated Jan. 11, 2010 (“Jan. 11 Salak-Dillon Emails”), Ex. J to Def.'s Statement, ECF No. 19-14, at 3.) Salak followed up by emailing Dillon to request “a list of specific issues” to be discussed at the meeting, and when Dillon declined to provide the requested information, Salak replied that he would “be requesting the presence [of] counsel” if the “meeting is to address any issues that could lead to a disciplinary action[.]” (Id. at 2.) Salak asked Dillon to inform him if any such issues would be discussed, “thus warranting legal counsel being present[, ]” and Dillon responded that “[n]o disciplinary action [would be] involved[.]” (Id.)

         2. Salak's January 14th Memorandum and The January 15th Meeting

         On the eve of the January 15th meeting, Salak wrote a memorandum to Dillon in which he stated, among other things, that his rights under “Title VII of the Civil Rights Act of 1964” were being infringed by Dillon's “singl[ing] out [Salak's] pregnancy-related conditions for special procedures related to [his] work or sick leave.” (Mem. from Salak to Dillon (Jan. 14, 2010) (“Jan. 14 Salak Mem.”), Ex. K to Def.'s Statement, ECF No. 19-15, at 4.) In the memorandum, Salak also asserted that “if you continue to deny me the leave requested . . . or attempt to take any retaliation against me whatsoever for exercising my rights, I will pursue all of my rights . . . to appeal your decision, including a complaint to the Office of Special Counsel and a personal civil suit, if necessary.” (Id.)

         When Salak met with Dillon and Spangenberg the next morning in Philadelphia, he was told that a “re-assignment to the Seattle Area Office” had been “recommended” and “approved by Headquarters[, ]” and that, pending Salak's permanent reassignment to Seattle, he was to report to the Philadelphia office three days a week. (Mem. to File (Jan. 15, 2010), Ex. M to Def.'s Statement, ECF No. 19-17, at 2.) That same morning, Dillon requested that “the Permanent Change of Station process for . . . Salak for his directed re-assignment” to the Seattle office be “initiate[d].” (Email from Dillon (Jan. 15, 2010), Ex. 8 to Pl.'s Statement, ECF No. 20-10, at 2.)

         B. Related Administrative Proceedings

         On January 25, 2010, ten days after the meeting in Philadelphia, Salak filed a complaint with the U.S. Office of Special Counsel. (See Def.'s Statement ¶ 69.)[7] Over the next two months, not only did the EPA “suspend[] the decision to reassign” Salak to the Seattle office (id. ¶ 70), but Salak was also told that he no longer needed to report to Philadelphia three days a week (see Id. ¶ 72). A year later, in April of 2011, the agency cancelled the planned reassignment entirely. (See Id. ¶ 71; see also Email from Saunders to Wood (Apr. 29, 2011), Ex. 35 to Pl.'s Statement, ECF No. 20-31, at 2.) In the meantime, however, Salak had filed a formal complaint of discrimination and retaliation with either the Equal Employment Opportunity Commission (“EEOC”) (according to Defendant) (see Def.'s Statement ¶ 73), or the EPA's Office of Civil Rights (according to Salak) (see Pl.'s Statement at 35-36 ¶ 73). This complaint, which was filed in March of 2010, “alleg[ed] disparate treatment, harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964[, ]” on grounds that “the [a]gency subjected [Salak] to disparate treatment based on sex (male), disability (associated with a disabled individual) and retaliation based on protected EEO activity when” it informed Salak that “he was being reassigned to Seattle, Washington[.]” (EEOC Order (Sept. 21, 2015), Ex. R to Def.'s Statement, ECF No. 19-22, at 5.)

         On September 21, 2015, an EEOC Administrative Judge (“AJ”) issued a decision that rejected Salak's retaliation claim. (See generally id.)[8] The AJ found that, although the agency's decision to initiate the process to reassign Salak to Seattle qualified as an adverse employment action and Salak had previously engaged in a protected activity (i.e., he had complained about alleged discrimination in violation of Title VII), Salak had failed to establish that “Dillon was aware of [Salak's] protected EEO activity at the time he proposed [Salak's] reassignment[, ]” or that there was “a causal connection between [Dillon's] decision to reassign [Salak] and the purported EEO activity.” (Id. at 13 (emphasis added).) In this regard, the AJ found that Salak's “protected activity did not occur until January 14, 2010[, ] when he sent Dillon a memorandum asserting protection under Title VII with respect to his requests for leave related to his wife's pregnancy and child birth[, ]” and that “[t]he preponderant evidence establishes that Mr. Dillon was not aware of [Salak's] EEO activity” at the time he proposed Salak's reassignment, or when he “sent [the January 11, 2010, final transfer] memorandum to [Director] Barnes with the [formal] reassignment request.” (Id.) Moreover, with respect to Salak's assertion that the transfer was retaliatory because “Dillon was upset that [Salak] went outside of the chain of command to independently verify Agency policy regarding requests for FMLA leave, ” the AJ concluded that such alleged retaliation was not actionable under Title VII because Salak's “actions in this regard do not constitute protected activity under Title VII[.]” (Id.)

         C. Procedural History

         Salak initiated the instant Title VII action on December 22, 2015, three months after the AJ's decision. (See generally Compl.) Salak's complaint alleges that the EPA retaliated against him in violation of Title VII by (1) threatening to reassign him to Seattle (see Id. ¶¶ 71-78 (Count I)); (2) proceeding with the reassignment process, which included executing documents to effectuate his transfer to Seattle (see Id. ¶¶ 79-88 (Count II)); and (3) failing to cancel the reassignment and/or failing to notify him that the reassignment had been cancelled timely (see Id. ¶¶ 89-100 (Count III)).[9]The parties ...

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