United States District Court, District of Columbia
LISA M. KINCAID, Plaintif,
WILLIAM P. BARR, et al.,  Defendants.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Lisa M. Kincaid, a Special Agent with the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”) filed a
four-count complaint against the Attorney General of the
United States and the Acting Director of the ATF, alleging
that the ATF violated Title VII by discriminating against her
on the basis of her sex and by retaliating against her for
engaging in activity protected under Title VII. Defendants
move to dismiss Counts I and II, which allege unlawful
retaliation, for failure to state a claim and move to dismiss
all claims against the Acting Director of the ATF on the
ground that only the agency head, here the Attorney General,
is a proper defendant in a Title VII case.
reasons discussed below, the Court will deny Defendants'
motion to dismiss Counts I and II but will grant their motion
to dismiss all claims against the Acting Director of the ATF.
purposes of the pending motion to dismiss, the following
facts, which are taken from Kincaid's second amended
complaint, Dkt. 44-2, are accepted as true. See Am.
Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011); see also EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (“In
determining whether a complaint fails to state a claim, [the
Court] may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the
complaint and matters of which [it] may take judicial
Initiation of Wright Investigation
is a GS-14 Special Agent employed by the ATF. Dkt. 44-2 at 6
(2d Am. Compl. ¶ 19). Prior to the events giving rise to
this case, Kincaid served as a criminal investigator in the
ATF's Internal Affairs Division (“IAD”), a
component of the ATF's Office of Professional
Responsibility and Security Operations. Id. In that
capacity, Kincaid was responsible for investigating
allegations of employee misconduct, which could include
“employee corruption such as bribery or embezzlement,
civil rights abuses, violence, ethics violations, and
prohibited personnel practices.” Id. at 7 (2d
Am. Compl. ¶ 25). Her “career with the ATF has
been highlighted with many outstanding ratings, performance
awards, and promotions.” Id. (2d Am. Compl.
12, 2013, Kincaid was assigned to conduct a preliminary IAD
investigation into allegations that then-Deputy Chief of the
ATF's Special Operations Division, Billy Wright, had
discriminated against and harassed ATF Special Agent
SherryAnn Quindley. Id. at 8-9 (2d Am. Compl. ¶
29-32). Kincaid's investigation corroborated Special
Agent Quindley's allegations and revealed “credible
allegations” that Deputy Chief Wright “had
engaged in sex discrimination and other misconduct in
addition to what had been reported by Special Agent
Quindley.” Id. at 9 (2d Am. Compl.
¶¶ 34-35). Her investigation also turned up
“numerous credible allegations of misconduct, including
Title VII violations, ” against the Chief of the
ATF's Special Operations Division, Charles Smith.
Id. at 9-10 (2d Am. Compl. ¶ 34-36);
id. at 1 (2d Am. Compl. ¶ 2).
completing initial interviews and the gathering of evidence
in September 2013, Kincaid briefed her supervisors within
IAD, Assistant Special Agent in Charge (“ASAC”)
Daniel Machonis and Special Agent in Charge
(“SAC”) Thomas Chittum, on her findings.
Id. at 11 (2d Am. Compl. ¶ 37). At this point,
Kincaid alleges, “ATF management . . . including . . .
SAC Chittum, actively interfered with [her] ability to
complete the [p]reliminary [i]nvestigation in a timely
manner, and intentionally delayed converting it into a full
IAD investigation.” Id. (2d Am. Compl. ¶
38). In October 2013, for example, SAC Chittum directed
Kincaid to investigate a different ATF employee, to
“make [that other investigation] her top priority,
” and thereby “forced [her] to set aside the
Wright investigation for five months.” Id. at
(2d Am. Compl. ¶ 39).
“resumed the Wright investigation in the spring of
2014, ” at which point “SAC Chittum actively
disparaged [Special Agent] Quindley's allegations and
those of the other women . . . Kincaid interviewed, and
dismissively claimed that . . . Wright's actions did not
violate Title VII.” Id. (2d Am. Compl. ¶
40). Kincaid “expressly objected to SAC Chittum's
mischaracterization of these Title VII allegations” and
“informed SAC Chittum repeatedly that if [Special
Agent] Quindley's case ever went to court, [Kincaid]
would truthfully testify to everything she had learned in the
course of her preliminary investigation about . . .
Wright's and . . . Smith's violations of Title
VII.” Id. at 11-12 (2d Am. Compl. ¶ 40).
Submission of Preliminary Report
August 7, 2014, Kincaid completed and submitted to her
supervisors, ASAC Machonis and SAC Chittum, a 272-page
preliminary report detailing the findings of her
investigation. Id. at 12 (2d Am. Compl. ¶ 41).
The report “encompassed and documented”
Kincaid's investigation of Special Agent Quindley's
original allegations, “additional instances of sex
discrimination, sexual harassment, and other allegations of
wrongdoing against” Wright, and “allegations of
wrongdoing against . . . Smith and other management officials
and the failure to remedy” those violations.
Id. at 12 (2d Am. Compl. ¶ 42). After reviewing
the report, ASAC Machonis told Kincaid “that he
believed it was extremely thorough and that she had
documented numerous instances from multiple sources that
warranted further investigation.” Id. (2d Am.
Compl. ¶ 43). The report was given to SAC Chittum and
forwarded to senior IAD management with ASAC Machonis's
recommendation that a full investigation be initiated.
Id. (2d Am. Compl. ¶ 43).
alleges that SAC Chittum nonetheless declined to open a full
investigation after reviewing her preliminary report.
Id. at 13 (2d Am. Compl. ¶ 45). She alleges
that SAC Chittum incorrectly “claimed that . . .
Quindley's allegations did not warrant further
investigation by IAD because they were already being
investigated in the context of” Quindley's parallel
EEO complaint. Id. Kincaid “objected,
informing SAC Chittum that . . . Quindley's EEO
investigation did not cover everything that was addressed by
[Kincaid's] preliminary investigation” and did
nothing to address “the allegations raised by numerous
other women that . . . Wright and . . . Smith had violated
Title VII, ” which Kincaid had also “uncovered
during the course of her preliminary investigation.”
Failure to Hire for ASAC Job within IAD
August 28, 2014, three weeks after Kincaid turned in her
preliminary report for review, a vacancy for a GS-15 ASAC
position in IAD was announced. Id. at 14 (2d Am.
Compl. ¶ 48). Kincaid timely applied, she was notified
that she had been placed on the “Best Qualified”
list, and she was interviewed on September 22, 2014 by a
panel that included SAC Chittum. Id. (2d Am. Compl.
¶¶ 49-50). Later that day, SAC Chittum advised
Kincaid that she had not been selected for the ASAC position
and that a male Special Agent was selected instead.
Id. (2d Am. Compl. ¶ 51). Plaintiff alleges
that she “was considerably more qualified” than
the male agent selected for the position-she had
“better and greater experience”-and “two
members of the interview panel” confirmed that
“her written submissions and interview were both much
stronger than his.” Id. (2d Am. Compl. ¶
Follow-up on Preliminary Report
October 3, 2014, SAC Chittum instructed Kincaid “to
break out each of the additional allegations of
wrongdoing” in her preliminary report into distinct
incident reports that would be investigated separately.
Id. at 15 (2d Am. Compl. ¶ 55). Kincaid alleges
that this “prevented the allegations against . . .
Smith and . . . Wright that she had reported . . . from being
converted to a full IAD investigation or referred to”
the Office of the Inspector General “collectively,
” and that separating the incidents addressed in her
report “downplayed the pervasiveness of the
allegations” by treating them “in isolation
rather than as an integrated whole.” Id. (2d
Am. Compl. ¶ 56). She continued her investigation into
some of these distinct allegations of Wright's and
Smith's alleged misconduct until the end of her service
with IAD. Id. at 16-17 (2d Am. Compl. ¶¶
62-65). The Department of Justice's Office of the
Inspector General (“OIG”), which received a
referral regarding only a portion of the allegations
addressed in Kincaid's preliminary report, eventually
initiated a full investigation into one of the non-Title VII
allegations against Smith-a claim that he had gambled while
on duty. Id. at 15-16 (2d Am. Compl. ¶ 57-58).
In November 2014, SAC Chittum was reassigned to a different
position and was replaced by SAC Thomas Murray. Id.
at 16 (2d Am. Compl. ¶ 59).
Initiation of Informal EEO Complaint
November 20, 2014, Kincaid began the informal administrative
EEO complaint process challenging her non-selection for the
ASAC position in the IAD. Id. at 14 (2d Am. Compl.
¶ 53). She alleged “that she had been
discriminated against because of her sex and retaliated
against for her protected EEO activities in conducting the
investigation into . . . Wright and . . . Smith.”
Id. “She named her husband as her
representative . . . in the EEO process, ” which was
“permissible.” Id. at 14-15 (2d Am.
Compl. ¶ 53). In January 2015, however, “Kincaid
decided not to pursue the formal EEO complaints process,
” fearing “that she would be subjected to
retaliation.” Id. at 15 (2d Am. Compl. ¶
Reassignment of ...