United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. # 24]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
Talley ("Talley" or "plaintiff) brought this
action against his former employer, the Immigration and
Customs Enforcement ("ICE") agency within the
Department of Homeland Security ("DHS" or
"defendant"), alleging unlawful discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2 et seq. At all
relevant times, plaintiff was employed by ICE as a Detention
Deportation Officer. Plaintiff applied, but was not selected,
for three different "Supervisory Detention Deportation
Officer (Unit Chief)" positions. He contends that his
non-selection for these positions was the product of racial
discrimination and retaliation for prior protected Equal
Employment Opportunity ("EEO") activity. Pending
before me is defendant's motion for summary judgment.
Based on the parties' briefing and the entire record
herein, and for the reasons set forth below, defendant's
motion for summary judgment is GRANTED.
an African-American male, served as a Detention Deportation
Officer at the Washington, D.C. headquarters of ICE
Enforcement and Removal Operations ("ERO") from
2006 through his retirement during the pendency of this case.
See Def. Ex. 1 ("EEO Report of
Investigation") at 6 [Dkt. # 24-1]; PI. Ex. 10
("Pl.'s Stmt. of Facts") at 1-2 [Dkt. # 25-10];
id. at 9. His experience as a Detention Deportation
Officer dates to 1996 and includes extensive work in a
supervisory and leadership capacity. See EEO Report
of Investigation at 6. Talley also had an impressive career
in the Air Force, commanding a large police unit and
ultimately attaining the rank of Lieutenant Colonel. All
told, Talley has over 21 years of supervisory law enforcement
experience, over 11 years of active duty and 10 years of
reserve duty service in a supervisory capacity, and at
various times served as acting supervisor for his unit in
ICE. See id.; Def. Ex. 2 (Aff. of Thaldaris M.
Talley ("Talley Aff.")) at 4-5; Def. Ex. 13 (Supp.
Aff. of Thaldaris M. Talley ("Supp. Talley Aff."))
at 4-5; Def. Ex. 21 ("Talley Resume"); Pl.'s
Stmt. of Facts ¶ 3.
2010, Talley responded to two separate job announcements for
the position of Supervisory Detention Deportation Officer
(Unit Chief). See EEO Report of Investigation at
1-2, 5-6; Talley Aff. at 1, 3; Supp. Talley Aff. at 1, 3;
Def. Ex. 19 ("Vacancy Announcement No. 384724");
Def. Ex. 12 ("EEO Supp. Report of Investigation")
at 1-2. According to the record, while Talley applied to two
job postings, he was in fact considered for three distinct
Unit Chief positions. Id.; EEO Report of
Investigation at 1-2.
the first announcement (vacancy number 321130), Talley
received an automated email on April 9, 2010, informing him
that he had been deemed "qualified for the
position" and that his name had been "referred ...
to the selecting official(s) for consideration." Def.
Ex. 3 at 2 ("Email Dated April 9, 2010"). On May 5,
2010, Talley received a second automated email notifying him
that he was not selected for the 321130 Unit Chief vacancy.
Def. Ex. 3 at 3-4 ("Email Dated May 5, 2010"). In
fact, Talley's application for the 321130 posting
received consideration for Unit Chief of both the Data
Quality and Integrity ("DQI") Unit and the
Information, Policy, and Communications ("IPC")
Unit. See EEO Report of Investigation at 7-8, 11;
Def. Ex. 4 (Aff. of Matthew J. Bronick ("Bronick
Aff")) at 4-5; Def. Ex. 5 (Aff. of Patrick Contreras
("Contreras Aff.")) at 4-5; Def. Ex. 8 (Affidavit
of Char Wittenberg ("Wittenberg Aff.")) at 3; Def.
Ex. 10 ("Contreras Recommendation Mem."); Def. Ex.
11 ("Bronick Recommendation Mem."). Talley learned
on January 28, 2011 that he was not selected for the 384724
Unit Chief announcement. See EEO Supp. Report of
Investigation at 2. This second vacancy apparently was
limited to Unit Chief of the Enforcement, Firearms and
Tactics ("EFT") Unit. Vacancy Announcement No.
384724 at 2 ("You will serve as a Unit Chief in the
Office of AD Enforcement, Firearms and Tactics Unit.");
see EEO Supp. Report of Investigation at 11; Supp.
Talley Aff. at 3; Def. Ex. 15 (Aff. of Conrad Agagan
("Agagan Aff.")) at 3; Def. Ex. 16 (Aff. of John K.
Crowther ("Crowther Aff.")) at 3; Def. Reply Ex. 3
("Archembault Dep. Excerpts") at 3 [Dkt. # 29-3].
While the parties in their briefing largely ignore that the
Unit Chief vacancies were specific to particular units within
ICE ERO, the nature of the positions is clear from the record
and critical to understanding the facts relevant to
selected Rosalio Estrada, a Hispanic male, for the DQI Unit
Chief position. EEO Report of Investigation at 8, 9;
Contreras Aff. at 4. Patrick Contreras, then the Deputy
Assistant Director for ERO's Information Resource
Management Division, recommended Estrada for this role.
Contreras Aff. at 2, 4. The DQI Unit "is responsible for
data quality evaluation, reviewing and creating measures in
the ERO case lifecycle, and improving [agency] efficiencies
by ensuring the data is accurate, reliable and timely."
Id. at 4. After reviewing Estrada's resume and
speaking with his immediate supervisor, Contreras concluded
that Estrada was the best candidate to lead the DQI Unit
because of Estrada's experience with ERO systems and ERO
information technology ("IT") solutions, as well as
his participation in the ERO modernization working group,
which exposed him not only to data issues but also to the
ERO's IT systems lifecycle. Id. In addition,
during Estrada's 11 years at ICE headquarters he led
"many IT related programs," including the Mexican
Information Sharing Project and Alien Removal Coordination
systems. Id. at 5. And Contreras gave special weight
to Estrada's knowledge and understanding of ICE's
Integrated Decision System and "ENFORCE Modules,"
software applications used by ICE personnel to manage the
booking, detention, and removal of aliens. Id.; see
generally PI. Ex. F ("Estrada Resume") [Dkt. #
25-6]. Contreras memorialized his assessment of Estrada's
qualifications in a recommendation memorandum to senior
management. See Contreras Recommendation Mem.
Contreras's superiors ultimately selected Estrada for the
DQI position based on Contreras's recommendation. EEO
Report of Investigation at 9, 11; Wittenberg Aff. at 4. No.
interviews were conducted for the DQI position. EEO Report of
Investigation at 9; Contreras Aff. at 5.
selected Isela Reynoso, a Hispanic female, to lead the IPC
Unit. EEO Report of Investigation at 7, 8; Bronick Aff. at 4.
Matthew Bronick, then the Deputy Assistant Director for
Information, Policy, and Communications, recommended Reynoso
for the position. Bronick Aff. at 2, 4. According to Bronick,
"Reynoso was the best candidate based on the depth and
breadth of her overall experiences in areas that gave her the
knowledge and skills necessary to fulfill the role of [IPC]
Unit Chief." Id. at 4. Bronick highlighted
Reynoso's "experience composing documents to
communicate various aspects of an agency's programs to
external audiences," and he gave particular weight to
Reynoso's "project management, communications,
writing, and organizational skills." Id. at 5.
Bronick "decide[d] not to select/recommend" Talley
for the IPC Unit Chief position because, in his view,
Reynoso's experience, knowledge, and skills made her the
best candidate for the role. Id. Like Contreras,
Bronick submitted a recommendation memorandum to his
superiors explaining his reasoning. See Bronick
Recommendation Mem. In the memorandum, Bronick explained that
he had evaluated Reynoso's performance as acting chief of
a different unit and found her an "effective
leader" who "can prioritize and monitor numerous
assignments to ensure that deadlines are met."
Id. In the acting position, Reynoso was
"involved in all information requests received in [ERO]
from many officers, the public, Congress, etc." Id.;
see also Def. Reply Ex. 2 ("Bronick Dep.
Excerpts") at 5 [Dkt. # 29-2] (Bronick testifying that
Reynoso oversaw "a lot of traffic, correspondence and
government-related emails, and other sources of input,
correspondence and things that needed to be processed and
tasked and answered"); PI. Ex. G ("Reynoso
Resume") [Dkt. # 25-7]. Bronick's superiors
ultimately selected Reynoso for the IPC position based on
Bronick's recommendation. EEO Report of Investigation at
7-8, 9. No. interviews were conducted for the IPC position.
EEO Report of Investigation at 8, 9; Bronick Aff. at 5.
defendant selected John Miskei, a Caucasian male, to be Chief
of the EFT Unit. Pl.'s Stmt. of Facts ¶ 13. John
Crowther, the Deputy Assistant Director for the Fugitive
Division, recommended Miskei. EEO Supp. Report of
Investigation at 8; Supp. Talley Aff. at 5. Crowther declared
in an affidavit that he recommended Miskei to lead the EFT
because of Miskei's "strong background in
training" and his "real world street experience
which is needed in this position as it is a training
position." Crowther Aff. at 4. In his recommendation
memorandum, Crowther explained that after conducting
interviews and giving "careful consideration and
extensive examination [to] all the other eligible
candidates"-including plaintiff-he found Miskei "to
be the most qualified for" the EFT position because he
was currently an officer within the unit and had relevant
experience in "a wide range of subject matter areas,
including "guidance and technical interpretation of ERO
firearms policy," "removals, training/course
development, criminal and administrative investigations, and
detention," and "firearms and tactics, badge and
credentials, health and safety, and uniforms." Def. Ex.
22 ("Crowther Recommendation Mem."); see
also Def. Reply Ex. 4 ("Crowther Dep.
Excerpts") at 2 [Dkt. # 29-4]; Pl.'s Stmt. of Facts
¶ 10, 13. Miskei had also "served as the ERO
liaison to the Federal Law Enforcement Training Center and
the National Firearms Tactical and Training Unit."
Crowther Recommendation Mem. To Crowther, Miskei's
"skill set, experience, and interview . . .
distinguished him from the other applicants" and would
"prove to be an enormous asset to the" EFT.
Id. Crowther's superiors selected Miskei for the
EFT position based on Crowther's recommendation. Def. Ex.
14 (Aff. of Gregory Archambeault ("Archambeault
Aff.")) at 5; Def. Ex. 18 (Supp. Aff. of Robert Helwig
("Supp. Helwig Aff.")) at 4.
record shows that Talley engaged in EEO activity on several
occasions. In August 2007 and again January 2009, prior to
the non-selections at issue in this case, Talley acted as a
witness for a co-worker in the co-worker's EEO claim.
See EEO Report of Investigation at 6; Talley Aff. at
3; Pl.'s Stmt. of Facts ¶ 2. Around the same time,
plaintiff filed two of his own complaints alleging racial
discrimination that he witnessed toward the same co-worker.
Id.; Talley Aff. at 3. The record also indicates
that on May 5, 2010, the day Talley learned of his
non-selection for the 321130 job announcement, he filed an
employment discrimination complaint with the EEO Office,
apparently followed by a formal complaint on August 26, 2010.
See EEO Report of Investigation at 1-3; EEO Supp.
Report of Investigation at 7; Supp. Talley Aff. at 3. The EEO
Office investigated Talley's claim from December 3, 2010
and February 15, 2011, and submitted a formal Report of
Investigation on February 16, 2011. EEO Report of
Investigation at 3. Nine days later, on February 25, 2011,
Talley requested that the EEO Office conduct a supplemental
investigation of his January 28, 2011 non-selection for the
384724 vacancy announcement. EEO Supp. Report of
Investigation at 2. The EEO Office investigated that claim
from March 10, 2011 to August 22, 2011, and submitted a
Supplemental Report of Investigation on August 22, 2011.
Id. at 1, 3.
August 1, 2014, Talley brought this action against defendant
alleging unlawful discrimination and retaliation under Title
VII. See Compl. [Dkt. # 1]. The parties engaged in a
lengthy discovery period that ended September 30, 2016. On
August 28, 2017, after nearly a year of silence from the
parties, I ordered plaintiff to show cause why this action
should not be dismissed for failure to prosecute.
See Minute Order (Aug. 28, 2017). Talley responded
and opposed dismissal, informing me that the parties had been
engaged in settlement discussions. See [Dkt.
# 20]. Those discussions did not resolve the case,
and I set a summary judgment briefing schedule. See
Minute Order (Nov. 29, 2017). Defendant moved for summary
judgment on April 2, 2018, see [Dkt. # 24], and
Talley filed his opposition on May 1, 2018, see
[Dkt. # 25]. Defendant filed its reply on June 19,
2018. See pkt.# 29].
is entitled to summary judgment when the pleadings, discovery
and disclosure materials on file, and any affidavits show
that there is "no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). A fact is "material"
if it "may affect the outcome of the litigation."
Montgomery v. Risen, 875 F.3d 709, 713 (D.C. Cir.
2017). A dispute is "genuine" if "the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
movant bears the initial burden of identifying evidence that
demonstrates that there is no genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A movant can satisfy that burden by "citing
to particular parts of materials in the record," or by
"showing that the materials cited do not establish"
the "presence of a genuine dispute." Fed.R.Civ.P.
56(c). If the moving party meets its initial burden, then the
nonmoving party-here, plaintiff-must identify the
"specific facts showing that there is a genuine issue
for trial." Celotex Corp., 477 U.S. at 324
(internal quotation marks omitted). If the nonmoving party
fails to proffer evidence to support its assertions, then the
moving party may prevail by citing that "failure of
proof." Id. at 323.
evaluating a summary judgment motion, a court must
"examine the facts in the record and all reasonable
inferences derived therefrom in a light most favorable to the
nonmoving party." Robinson v. Pezzat, 818 F.3d
1, 8 (D.C. Cir. 2016) (internal quotation marks omitted). To
establish a genuine dispute of material fact sufficient to
defeat summary judgment, however, the nonmoving party must
come forward with more than "a scintilla of