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Kincaid v. Barr

United States District Court, District of Columbia

September 30, 2019

LISA M. KINCAID, Plaintif,
v.
WILLIAM P. BARR, et al., [1] Defendants.

         FILED UNDER SEAL

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         For the 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.

         I. BACKGROUND

         For 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 notice.”).

         A. Factual Background

         1. Initiation of Wright Investigation

         Kincaid 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. ¶ 21).

         On July 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).

         After 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).

         Kincaid “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).

         2. Submission of Preliminary Report

         By 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).

         Kincaid 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.” Id.

         3. Failure to Hire for ASAC Job within IAD

         On 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. ¶ 52).

         4. Follow-up on Preliminary Report

         On 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).

         5. Initiation of Informal EEO Complaint

         On 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. ¶ 54).

         6. Reassignment of ...


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