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Markowicz v. Nielsen

United States District Court, District of Columbia

June 20, 2018

MICHAEL MARKOWICZ, Plaintiff,
v.
KIRSTJEN M. NIELSEN, Secretary, United States Department of Homeland Security, [1] Defendant.

          MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Michael Markowicz is a white man employed as a Special Agent by the United States Secret Service, an organization within the purview of the United States Department of Homeland Security (the “Department”). He claims that the Department denied him a promotion because of his race, and instead promoted three minority candidates. This decision, according to Special Agent Markowicz, violated the anti-discrimination provision of Title VII of the Civil Rights Act of 1964.

         Defendant has moved for summary judgment, arguing that the Department's decision was based on nondiscriminatory criteria. Because a reasonable jury could conclude that the Department's proffered criteria were a pretext for discrimination, the Court denies Defendant's motion.

         II. BACKGROUND [[2]]

         A. The Secret Service's Organizational Structure

         The Secret Service is housed within the Department, and its organizational structure dictates its decision making with respect to promotions. That structure is as follows:

• The Secret Service's Director and Deputy Director oversee Assistant Directors, who manage the organization's offices. See generally Def.'s Mot. Summ. J. (“Def.'s Mot.”) Ex. 13 (listing the Assistant Directors in December 2010 and the Assistant Directors' respective offices, such as the “Office of Administration” and the “Office of Investigations”), ECF No. 29-14.
• Deputy Assistant Directors aid the Assistant Directors in their office management duties. See generally Decl. of Craig Magaw (“Magaw Decl.”) ¶¶ 1-2, 10-12 (discussing Deputy Assistant Director Magaw's role within the Office of Strategic Intelligence and Information), ECF No. 29-4.
• Special Agents in Charge manage divisions within each office, under the direction of Assistant Directors and Deputy Assistant Directors. See, e.g., Decl. of Richard Elias (“Elias Decl.”) ¶ 8 (noting that Special Agent in Charge Nelson Garabito managed the Protective Intelligence and Assessment Division (“PIAD”)), ECF No. 29-3.
• Assistants to the Special Agent in Charge (“ATSAICs”) assist the Special Agent in Charge of each division. See, e.g., Decl. of Nelson Garabito (“Garabito Decl.”) ¶ 19 (discussing the three ATSAIC positions available within PIAD in October 2010), ECF No. 29-5.
• And ATSAICs in turn supervise Special Agents. See, e.g., Sept. 2011 Decl. of Michael Markowicz (“Markowicz Sept. 2011 Decl.”) ¶ 7 (noting that Special Agent Markowicz's first line supervisor in 2010 was ATSAIC Robert Long), Pl.'s Opp'n Def.'s Mot. Summ. J. (“Pl.'s Opp'n”) Ex. A, ECF No. 31.

         B. Vacancy 10101

         1. Procedure

         On October 7, 2010, the Secret Service's Personnel Division announced a vacancy (“Vacancy 10101”) for three ATSAIC positions in PIAD, within the Office for Strategic Intelligence and Information. Def.'s Statement ¶¶ 10-11; Garabito Decl. ¶ 19. Special Agent Markowicz applied to fill one of those open positions. Def.'s Statement ¶ 12.

         Positions in the Secret Service are assigned “grade levels” corresponding to their seniority. See Def.'s Mot. Ex. 8 at 5-9, ECF No. 29-9. Vacancy 10101 was a GS-14 grade level position, and Special Agent Markowicz was one of many GS-13 employees seeking the promotion, along with one GS-14 employee seeking a lateral move. Def.'s Statement ¶¶ 10, 12- 13. To be eligible for a promotion to the GS-14 level or above, Special Agents must receive a Merit Promotion Plan (“MPP”) score. Def.'s Statement ¶ 3. Each Special Agent's MPP score incorporates raw scores generated by:

(1) A current supervisor's evaluation of the Special Agent;
(2) An “in-basket” assessment of how the Special Agent delegates responsibility and prioritizes information;
(3) A video-based situational judgment test; and
(4) An evaluation of the Special Agent's “Career Accomplishment Record.”

Def.'s Mot. Ex. 8 at 16-21.

         Special Agents with MPP scores apply for GS-14 and GS-15 positions by “bidding” on announced vacancies through a system administered by the Personnel Division. Def.'s Mot. Ex. 8 at 24 (discussing the bidding process). After receiving bids for a vacancy, the Personnel Division generates three lists of eligible promotion candidates:

(1) The “Reassignment Certificate”: All Special Agents who bid on the vacancy and who are currently serving in a role that is at or above the vacancy's grade level (e.g., for a GS-14 vacancy, all GS-14, GS-15, and higher-level applicants);
(2) The “Promotion Certificate”: The thirty Special Agents with the highest MPP scores who bid on that specific vacancy, ranked by MPP score; and
(3) The “Promotion Register”: The thirty Special Agents with the highest MPP scores who bid on any vacancies at the same grade level as the vacancy being considered, ranked by MPP score (e.g., for a GS-14 vacancy, the highest-ranking thirty Special Agents who bid on any GS-14 vacancies at the time).

See Def.'s Statement ¶¶ 5-6, 10; Def.'s Mot. Ex. 8 at 26.

         The three lists are then submitted to an Advisory Board charged with making personnel decisions at the GS-14 level and above. See Def.'s Mot. Ex. 8 at 26. The Advisory Board's membership includes the Secret Service's Deputy Director, Chief of Staff, Assistant Directors, Chief of the Uniformed Division, and Chief Counsel. See id.; Def.'s Mot. Ex. 13 (listing the Board's membership in December 2010), ECF No. 29-14. The Board recommends a candidate or candidates to the Secret Service's Director, who may concur with the recommendation or select a different candidate to fill the vacancy. See Def.'s Mot. Ex. 8 at 26.

         In making its recommendations, the Advisory Board considers the views of the office and the division affected by the vacancy. These views are expressed by the Assistant Director of the affected office, who recommends one or more candidates to the Advisory Board after discussions with the office's Deputy Assistant Director and the Special Agent in Charge of the affected division. Magaw Decl. ¶ 12, 29; Elias Decl. ¶ 10 (stating that Special Agent in Charge Garabito had input into Assistant Director Elias's recommendations to the Advisory Board); Garabito Decl. ¶ 8-9, 14 (same). The Advisory Board gives considerable weight to the relevant Assistant Director's recommendations when making final recommendations to the Director. See Elias Decl. ¶ 8.

         2. Selection

         Because Vacancy 10101 was for PIAD positions within the Office of Strategic Intelligence and Information, the Assistant Director for that office, Richard Elias, was charged with recommending candidates for consideration by the Advisory Board. Elias Decl. ¶ 8. Assistant Director Elias consulted with the Office's then-Deputy Assistant Director, Craig Magaw, and the Special Agent in Charge of PIAD, Nelson Garabito, before submitting his recommendations. Id. Assistant Director Elias ultimately recommended Special Agents Thomas Edwards, Jonathan Wynn, and Gregory Naranjo for promotion, and the Board accepted those recommendations. Def.'s Statement ¶ 16; see Elias Decl. ¶ 1, 8. The Director of the Secret Service concurred with the Advisory Board's decision, and Special Agents Edwards, Wynn, and Naranjo were promoted to the three vacant PIAD ATSAIC positions. Def.'s Statement ¶ 17; Def.'s Mot. Ex. 10 at 2, ECF No. 29-11. Special Agent Markowicz was not promoted.

         3. Candidates

         Because Special Agent Markowicz's suit arises from his non-promotion to Vacancy 10101, the Court will briefly summarize the qualifications of Special Agent Markowicz and the three successful candidates.

         a. Thomas Edwards

         Special Agent Edwards was ranked first on the Promotion Certificate for Vacancy 10101, meaning he had the highest MPP score of any GS-13 applicant, and he was ranked twelfth on the nationwide Promotion Register. Def.'s Mot. Ex. 10; Markowicz Sept. 2011 Decl. ¶ 13. His race is listed as Hispanic in the Secret Service personnel records, although there is evidence that his fellow Special Agents believed he was white at the time of his promotion. [3] Def.'s Statement ¶ 19; Markowicz Sept. 2011 Decl. ¶ 13.

         Special Agent Edwards spent 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. Def.'s Mot. Ex. 11, ECF No. 29-12. In total, he had eleven years and six months of experience as a Special Agent. Id. But he provided protective services only during his four years in the Vice Presidential Protective Division. See Id. Notably, he did not serve in either PIAD or the Presidential Protective Division.

         b. Jonathan Wynn

         Special Agent Wynn was ranked eighteenth on the Promotion Certificate and seventy-fifth on the nationwide Promotion Register. Def.'s Mot. Ex. 10; Markowicz Sept. 2011 Decl. ¶ 13. He is African American. Elias Decl. ¶ 8; Garabito Decl. ¶ 14.

         Special Agent Wynn spent four years and four months in the Atlanta Field Office, two years and six months in the Intelligence Division (the precursor to PIAD), four years and seven months in the Presidential Protective Division, and one year and eight months in the Washington Field Office. Def.'s Mot. Ex. 11; Elias Decl. ¶ 21. In total, he had thirteen years and one month of experience as a Special Agent. See Def.'s Mot. Ex. 11. Of those, seven years and eight months were devoted to protective services: his two years and six months in the Intelligence Division and his four years and seven months in the Presidential Protective Division. See Def.'s Mot. Ex. 11.

         c. Gregory Naranjo

         Special Agent Naranjo was ranked twentieth on the Promotion Certificate and ninety-second on the nationwide Promotion Register. Def.'s Mot. Ex. 10; Markowicz Sept. 2011 Decl. ¶ 13. He is Hispanic. Elias Decl. ¶ 8; Garabito Decl. ¶ 14.

         Special Agent Naranjo spent nine years in the Miami Field Office, one year and two months in the Intelligence Division, and two years and five months in PIAD. Def.'s Mot. Ex. 11; see also Elias Decl. ¶ 21. He was therefore seeking promotion within his current division. In total, he had twelve years and seven months of experience as a Special Agent. See Def.'s Mot. Ex. 11. Of those, just three years and seven months were devoted to ...


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