United States District Court, District of Columbia
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
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.
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.
The Secret Service's Organizational Structure
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
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.
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
(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
Def.'s Mot. Ex. 8 at 16-21.
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.
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.
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.
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.
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.
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.  Def.'s
Statement ¶ 19; Markowicz Sept. 2011 Decl. ¶ 13.
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
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.
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.
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.
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 ...