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Talley v. Nielsen

United States District Court, District of Columbia

February 13, 2019

KIRSTJEN NEILSEN, Secretary of Homeland Security, U.S. Dep't of Homeland Security, Defendant.

          MEMORANDUM OPINION [DKT. # 24]


         Thaldaris 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.


         Plaintiff, 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.

         In 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.

         As to 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 Talley's claims.

         Defendant 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.

         Defendant 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.

         Finally, 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.

         The 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.

         On 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].


         A party 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).

         The 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.

         When 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 ...

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