Hill v. Pompeo ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY HILL,
Plaintiff,
v.
No. 18-cv-2518 (DLF)
ANTONY J. BLINKEN,
Secretary, U.S. Department of State,
Defendant. 1
MEMORANDUM OPINION
Anthony Hill brings this action against the Secretary of the U.S. Department of State
alleging that, when he was employed in the Department’s Mobile Security Deployment team, he
was unlawfully discriminated and retaliated against, in violation of Title VII of the Civil Rights
Act of 1964. He also seeks review of the Foreign Service Grievance Board’s decision to uphold
his one-day suspension. Before the Court are the plaintiff’s Motion for Partial Summary
Judgment, Dkt. 35, and the defendant’s Motion for Summary Judgment, Dkt. 34. For the reasons
that follow, the Court will deny the plaintiff’s motion and grant the defendant’s motion in part and
deny it in part.
1
Pursuant to Rule 25(d), of the Federal Rules of Civil Procedure, Antony Blinken, the Secretary
of the U.S. Department of State, has been substituted for Michael Pompeo as the defendant.
I. BACKGROUND
A. Factual background
Anthony Hill joined the Department of State’s Mobile Security Deployment team on
August 25, 2013. Def.’s Statement of Undisputed Material Facts ¶ 2, Dkt. 34-2. 2 He eventually
became the team leader of one of the deployment teams, Team 2. Id. ¶ 4; Pl.’s Statement of
Genuine Issues & Response to Def.’s Statement of Undisputed Material Facts ¶ 2, Dkt. 42-1. In
this role, Hill’s supervisory chain consisted of Justin Rowan as his first-line supervisor; Nicholas
Collura as his second-line supervisor; and Kevin Maloy, the Director of the Mobile Security
Deployment, as his third-line supervisor. Def.’s Statement of Facts ¶ 7. Under Hill’s leadership,
Team 2, among other things, deployed to Bangui, Central African Republic from September
through November 2014. Id. ¶ 19.
Around May 2014, Hill’s subordinates on Team 2 included at least three white men—Ben
Horner, Dan Balocki, and Steve Stockl—and one African American man—Steven Whitaker. Id.
¶¶ 10, 12. After learning that Team 2’s “unofficial team logo[]” was a baboon, id. ¶ 8, Hill, who
is African American, explained to his subordinates that he “found the . . . logo to be offensive,” id.
¶ 12. Hill asserts that, even after he expressed his concerns about the logo, he saw team members
using the logo, including while deployed to the Central African Republic. Id. ¶ 20. After returning
from this deployment, on November 5, 2014, Hill emailed Team 2, Rowan, and Collura explaining
that he continued to find the baboon logo “extremely offensive.” Id. ¶ 26. Later that day, Collura
emailed the entire Mobile Security Deployment team banning use of informal logos like the
baboon. Id. ¶ 27.
2
The Court cites the defendant’s Statement of Facts if a fact is undisputed. If a fact is disputed, it
will indicate as such.
2
The parties dispute the facts relating to three incidents involving Hill and his subordinates
during Hill’s tenure as team leader. According to Balocki, at a June 2014 training exercise at the
Panthera Training Center, Hill pushed him down the stairs during the exercise and called him an
“asshole.” Id. ¶ 15; Pl.’s Resps. ¶ 15. Jennifer Socha, a female member of Team 3, asserts that at
an August 2014 joint training between Teams 2 and 3, Hill “inappropriately made a comment
about her weight and grabbed her belly.” Def.’s Statement of Facts ¶ 17; Pl.’s Resps. ¶ 17. All
agree that on October 10, 2014, while Team 2 was deployed to Bangui, Hill “got into a loud
argument” with Whitaker and Stockl. Def.’s Statement of Facts ¶ 24. The Secretary asserts that,
during this argument, Hill stated “something along the lines of ‘let’s go out back’ or ‘I’ll take you
out back.’” Id. Hill, for his part, admits to stating “let’s go out back,” but he contends that he
made that statement because he saw the “top official at the Embassy” nearby and wanted to take
the argument out of the official’s view. Pl.’s Resps. ¶ 24.
During Hill’s time as team leader, some of the members of Team 2, including Stockl and
Balocki, as well as newer, white members, Palmer Jones and Thomas Verhagen, expressed
concerns about Hill’s leadership. Def.’s Statement of Facts ¶ 25. For example, on October 1,
2014, Stockl emailed Rowan asking to be transferred from Team 2 following their deployment.
Id. ¶ 22. On October 28, Jones also emailed Rowan, copying Stockl, Balocki, and Verhagen—but
not Whitaker—to request a meeting to discuss “ongoing team issues.” Id. ¶ 25. These four team
members eventually met with another individual of Rowan’s rank, David Jordan, on November
10, and explained that they did not “want to work for Hill anymore.” Id. ¶¶ 25, 28. Around the
same time, Rowan, Collura, and Maloy also learned of Socha’s allegations against Hill. Id. ¶ 29.
On December 12, 2014, Rowan instructed Hill to not attend a Team 2 training due to
“pending issues with respect to your conduct as a first-line supervisor.” Id. ¶ 32. The same day,
3
Rowan also wrote to Maloy and Collura to recommend that Hill be removed as team leader of
Team 2. Pl.’s Resps. ¶ 35. In December 2014, Hill was removed from his position as team leader
and would not return. Def.’s Statement of Facts ¶¶ 35, 39–40, 42. He was initially reassigned to
another division, id. ¶ 39, and was also offered a Unit Chief position within the Mobile Training
Team that he declined, id. ¶ 40. On February 10, 2015, Hill received a letter of admonishment
regarding the June 2014 stairwell incident and the October 2014 altercation. Id. ¶ 41.
On December 19, 2014, Rowan asked the Office of Special Investigations to initiate an
investigation into the complaints Hill’s subordinates made against him. Id. ¶ 36. Elizabeth
Marmesh, who was familiar with some of the witnesses and complaining parties, including Socha,
was assigned to lead the investigation. Id. ¶ 37. She concluded in her March 3, 2015 investigation
report that “the allegations of workplace violence” by Hill were “substantiated.” Id. ¶ 44.
On October 5, 2015, Hill received “a proposal to suspend him for one[]day” based on his
treatment of Socha during the August 2014 joint training. Id. ¶ 48. The one-day suspension was
based on three allegations: that Hill “(1) grabbed Ms. Socha’s stomach, (2) made a comment
regarding Ms. Socha’s belly fat, and (3) made a comment regarding rubbing sunscreen on Ms.
Socha.” Id. ¶ 49. Though Hill admitted to calling Socha fat, he disputed the other allegations. Id.
Hill’s suspension was sustained by the Deputy Assistant Secretary, id.; as a result, Hill’s “name
was removed from the rank-order list and he was ultimately not promoted during [the 2015]
promotion cycle,” id. ¶ 50. Hill’s grievances from the suspension were also denied by the Deputy
Assistant Secretary for Human Resources, id. ¶ 51, and the Foreign Service Grievance Board, id.
¶ 52. The Board concluded that two of the three allegations—grabbing Socha’s stomach and
making a comment regarding her weight—were established by a preponderance of the evidence,
4
but the alleged comment regarding sunscreen was not. Id. The Board also denied Hill’s request
for reconsideration. Id. ¶ 53.
B. Procedural history
On October 30, 2018, Hill filed a complaint in this Court challenging the Board’s denial of
his grievance as arbitrary and capricious under the Administrative Procedure Act. Compl. ¶¶ 83–
100, Dkt. 1. He also alleged Title VII claims—that he had been discriminated against on the basis
of race and retaliated against for opposing Team 2’s use of a baboon symbol. Id. ¶¶ 101–129. The
Court granted in part and denied in part the Secretary’s motion to dismiss the complaint. Hill v.
Pompeo, No. 18-cv-2518, 2020 WL 2838585 (D.D.C. May 31, 2020). Now before the Court are
Hill’s motion for partial summary judgment on his APA claim, Dkt. 35, and the Secretary’s motion
for summary judgment, Dkt. 34.
II. LEGAL STANDARD
A. Summary judgment
Under Rule 56, summary judgment is appropriate if the moving party “shows 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); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247–48 (1986).
A “material” fact is one that could affect the outcome of the lawsuit. See Liberty Lobby, 477 U.S.
at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if a
reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See
Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. In reviewing the record, the court
“must draw all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000).
5
A party “opposing summary judgment” must “substantiate [its allegations] with evidence”
that “a reasonable jury could credit in support of each essential element of [its] claims.” Grimes
v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015). The moving party is entitled to summary
judgment if the opposing party “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. Administrative Procedure Act
In an Administrative Procedure Act case, summary judgment “serves as the mechanism for
deciding, as a matter of law, whether the agency action is supported by the administrative record
and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp.
2d 76, 90 (D.D.C. 2006). The Court will “hold unlawful and set aside” agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C.
§ 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right,” id. § 706(2)(C); or “unsupported by substantial evidence,” id. § 706(2)(E).
In an arbitrary and capricious challenge, the core question is whether the agency’s decision
was “the product of reasoned decisionmaking.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins., 463 U.S. 29, 52 (1983). The court’s review is “fundamentally deferential—
especially with respect to matters relating to an agency’s areas of technical expertise.” Fox v.
Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) (internal quotation marks and alteration omitted). The
court “is not to substitute its judgment for that of the agency.” State Farm, 463 U.S. at 43.
“Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation
for its action including a rational connection between the facts found and the choice made.” Id.(internal quotation marks omitted). When reviewing that explanation, the court “must consider
whether the decision was based on a consideration of the relevant factors and whether there has
6
been a clear error of judgment.” Id. (internal quotation mark omitted). For example, an agency
action is arbitrary and capricious if the agency “entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before [it], or
[the explanation] is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Id. The party challenging an agency’s action as arbitrary and
capricious bears the burden of proof. Pierce v. SEC, 786 F.3d 1027, 1035 (D.C. Cir. 2015).
III. ANALYSIS
Hill moves for summary judgment only on his claim that the Foreign Service Grievance
Board’s decision was arbitrary or capricious in violation of the APA. Pl.’s Mem. at 19–20, Dkt.
35-1. The Secretary moves for summary judgment on all of Hill’s remaining administrative, race
discrimination, and retaliation claims. Def.’s Mem. at 12, Dkt. 34-1.
A. Administrative Procedure Act
The Foreign Service Act of 1980 permits any party “aggrieved” by a ruling of the Foreign
Services Grievance Board to “obtain judicial review of a final action of . . . the Board . . . in the
district courts of the United States.” 22 U.S.C. § 4140(a). In such a challenge, the APA applies
“without limitation or exception.” Id. Hill contends that the Board’s decision violated the APA
because the Board incorrectly found that the Foreign Service Act’s election of remedies provision,
id. § 4139(a)(1), barred it from considering certain evidence, and because it failed to consider other
relevant evidence. Pl.’s Mem. at 19–20. Neither challenge succeeds.
1. Election of remedies provision
The Foreign Service Act’s election of remedies provision provides that “[a] grievant may
not file a grievance with the Board if the grievant has formally requested, prior to filing a
grievance, that the matter or matters which are the basis of the grievance be considered or resolved
and relief be provided under another provision of law . . . .” 22 U.S.C. § 4139(a)(1). Based on
7
this provision, the Board declined to consider two “matters” that it viewed as covered by Hill’s
parallel EEOC complaint: (1) any racial bias of the witnesses who corroborated Socha’s version
of events, including Collura, Rowan, Jones, Balocki, and Stockl, Def.’s Ex. 30 (Board Dec.) at 18,
20, Dkt. 34-3; and (2) any “purported inaccuracies” in Memoranda of Interview for the witnesses’
interviews “pertaining to matters for which [Hill] was not disciplined,” id. at 20–21 n.12. The
Court need not decide whether the Board’s interpretation of the election of remedies provision was
correct because the Board’s decision not to consider the above matters was not material to its
ultimate conclusions. See PDK Lab’ys, Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“If the
agency’s mistake did not affect the outcome, if it did not prejudice the petitioner, it would be
senseless to vacate and remand for reconsideration.”).
As to the racial bias of the corroborating witnesses, the Board explicitly stated that any bias
did not affect its decision; in its ruling on Hill’s motion for reconsideration, it noted that, even if
its legal interpretation was error, its final ruling would remain undisturbed. Def.’s Ex. 31 (Board
Dec. on Reconsideration) at 11–12. The Board wrote: “[E]ven assuming that several of the
witnesses in the case were found to have harbored racial animus against [Hill], such a finding
would not warrant setting aside [its] ruling as to the touching incident.” Id. at 12. Thus, the Court
need not, and cannot, determine de novo whether consideration of such bias would have changed
the Board’s decision, even though evidence of witness bias is generally a “relevant factor” that an
agency cannot ignore, see Pl.’s Mem. at 26–28 (citing Olson v. Powell, No. 02-1371, 2005 U.S.
Dist. LEXIS 50270 *11 (D.D.C. Feb. 3, 2005)). The Board’s conclusion was supported by the
record.
As to the allegations that Hill said Socha was “fat” and inappropriately touched her
stomach, the Board carefully considered “considerable evidence” establishing various witnesses’
8
animus against Hill on non-racial grounds. Board Dec. at 35. This included evidence that Jones,
Stockl, and Balocki “were involved in a concerted effort to have [Hill] removed as their team
leader, or to have themselves removed from his team.” Id. at 34–35. Taking into account this
evidence, the Board credited factors that weighed in favor of the witnesses’ credibility, such as
Balocki’s “contemporaneous recording of his having seen the touching”; the fact that Stockl and
Balocki were interviewed after Hill had already been removed as team leader, id. at 36; and the
volume of “corroborating evidence, including Socha’s own statements and actions,” id. at 38. A
number of these factors, including “the lack of contradiction of [the witnesses’] . . . statements by
other evidence[] and the absence of ‘inherent improbability’ of [their] version of events,” led the
Board to further conclude any finding of racial bias would “not warrant a conclusion that [the
witnesses’] otherwise corroborated, and thus creditable, statements should be disregarded.” Board
Dec. on Reconsideration at 12. The Board also pointed out that Hill had never alleged “that the
primary complaining witness herself [Socha] was racially biased against him.” Id. The Board’s
discussion of extensive evidence in the record—including evidence regarding the credibility of not
only the allegedly biased witnesses, but also Socha herself—is an adequate explanation for its
conclusion that Hill called Socha “fat” and touched her inappropriately. See Toy v. United States,
263 F. Supp. 2d 1, 7 (D.D.C. 2002) (“The FSGB . . . weighed the evidence on both sides of the
issue and adequately explained its decision not to find Consul General Warren’s testimony biased.
This court will not disturb such a finding . . . .” (citation omitted)); Olson v. Clinton, 602 F. Supp.
2d 93, 103 (D.D.C. 2009), aff’d, 409 F. App’x 359 (D.C. Cir. 2011).
The Board’s refusal, based on the election of remedies provision, to consider minor and
irrelevant inconsistencies between the witnesses’ statements and the corresponding Memoranda of
Interview was also immaterial to its decision. See Board Dec. at 26–27; Joint Appendix (JA) at
9
670–71, 684–87, Dkt. 48. A court does not review “whether the Board’s decision was perfectly
correct, but whether it was arbitrary.” Clinton, 602 F. Supp. 2d at 102. None of the alleged
inconsistencies are sufficient to render the Board’s final ruling arbitrary or capricious.
2. Failure to consider other evidence
Despite Hill’s assertions to the contrary, see Pl.’s Mem. at 30–34, the Board adequately
considered “contradictions and inherent improbabilities” in witness testimony, id. at 30–32, and
improprieties in the Office of Special Investigations inquiry, id. at 32–34.
First, the Board acknowledged that Socha, Stockl, and Balocki used “different words to
describe the actual touching,” Board Dec. at 31, and that they “offered somewhat different
descriptions of the location where the incident took place,” id. at 32. Even so, the Board concluded
that these discrepancies made “no meaningful difference,” as all witnesses agreed that there was
“unwanted physical touching, . . . [which] is the most salient point in terms of whether to sustain
the [allegations].” Id. at 31; see also id. at 32 (“[T]he slight discrepancies identified by grievant
as to location of the incident do not alter the central point, that witnesses corroborate Socha’s
statement that the touching occurred.”). The Board carefully considered the consistency of the
witnesses’ statements throughout the investigation, as well as Team 3 member John Aardapel’s
statement that Titus described the touching incident to him that evening. Id. at 31–33. The Board’s
findings are supported by the record, and the Court will not further “reweigh the conflicting
evidence or otherwise substitute [its] judgment for that of the [Board].” Indiana Municipal Power
Agency v. FERC, 56 F.3d 247, 254 (D.C. Cir. 1995). That the Board did not specifically discuss
the differences between the witnesses’ statements regarding the timing of the Hill’s alleged
touching is not fatal to its decision, see Pl.’s Mem. at 31. The Board reviewed the relevant
statements and explained that any minor inconsistencies did not sufficiently outweigh the
10
witnesses’ consistent testimony that the underlying incident did take place. Because the Board’s
“path may reasonably be discerned” and “minimally contain[s] a rational connection between the
facts found and the choice made,” the Court will not second guess its decision. Frizelle v. Slater,
111 F.3d 172, 176 (D.C. Cir. 1997) (cleaned up).
Second, the Board also carefully considered, in eight pages of reasoned analysis, alleged
improprieties in the investigation and concluded that “preponderant evidence shows the . . .
investigation and its resulting [record] are a valid basis on which the Department could base its
suspension decision.” Board Dec. at 21–28. The Board correctly characterized the relationships
of the investigator, Marmesh, to Balocki, Stockl, Socha, and Jones, compare Board Dec. at 21,
with Pl.’s Mem. at 32 & n.10; JA 513–14, and found that their limited personal interactions did
not constitute the “substantial personal ties outside the workplace” that would require Marmesh to
report a conflict of interest under 12 FAM 221.7-1(a), Board Dec. at 23. That Stockl stated at a
deposition that he “consider[ed] [Marmesh] a friend,” JA 513–14; Pl.’s Mem. at 33, did not provide
grounds to reject the validity of the entire investigation, see Board Dec. at 25 & n.16 (considering
Stockl’s deposition statements regarding his relationship with Marmesh). Finally, as discussed
above, see supra section III.A.1, any minor mischaracterizations of witness statements were not
so probative as to undermine the Board’s finding that Marmesh’s investigation could be credited.
Accordingly, the Court will grant summary judgment in favor of the Secretary on Hill’s
APA claim.
B. Discrimination
As the Court previously held, Hill’s discrimination claim is governed by a theory of “‘cat’s
paw’ liability based on the racial animus of a plaintiff’s co-workers.” 2020 WL 2838585 at *8.
Under this theory Hill must establish that: (1) his “co-worker[s] ma[de] statements maligning
[him], for discriminatory reasons and with the intent to cause” an adverse action; (2) “the co-
11
worker[s’] discriminatory acts proximately cause[d]” the adverse action; and (3) “the employer
act[ed] negligently by allowing the co-worker[s’] acts to achieve their desired effect though it
kn[ew] (or reasonably should [have] know[n]) of the discriminatory motivation.” Velazquez-Perez
v. Developers Diversified Realty Corp., 753 F.3d 265, 274 (1st Cir. 2014); see also Morris v.
McCarthy, 825 F.3d 658, 672 (D.C. Cir. 2016) (applying McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1972), framework to cat’s paw liability elements). Applying this standard, a reasonable
jury could find in favor of Hill on each prong.
1. Discriminatory animus
First, there is record evidence that Hill’s white co-workers, including Stockl, Balocki, and
Jones, made statements against Hill that were both (1) intended to cause his removal as team leader
of Team 2 and (2) motivated by racial animus.
To be sure, the record is ambiguous as to whether Hill’s team members intended to be
transferred off his team or have Hill removed from his position. Compare Pl.’s Ex. 43 at 1, Dkt.
42-3 (Jordan’s documentation of his conversation with white Team 2 members noting that “none
of them want to work for Hill anymore” and that “there was a very good chance that [Hill] will not
continue to be their [team leader]”), with Pl.’s Ex. 35 at 6, (“Following my return from Bangui I
am requesting I be transferred to another team.”); Pl.’s Ex. 33 at 2. But Hill has produced sufficient
evidence to create a genuine dispute, and the D.C. Circuit recently held that a transfer in position
as well as a removal can, in certain circumstances, constitute an adverse action. See Chambers v.
District of Columbia, 35 F.4th 870, 872 (D.C. Cir. 2022); see also Stewart v. Ashcroft, 352 F.3d
422, 427 (D.C. Cir. 2003) (“[W]ithdrawing an employee’s supervisory duties constitutes an
adverse employment action.”); Ohal v. Bd. of Trs. of Univ. of Dist. of Columbia, 100 F. App’x
833, 834 (D.C. Cir. 2004) (“[A] material reduction of supervisory responsibilities . . . can amount
12
to an adverse employment action.”).
Further, Hill has put forth sufficient evidence that the team members’ statements were
motivated by discriminatory animus. In May 2014, when Hill first became team leader, he told
the members of his team that he found the baboon logo “offensive” because “monkey and black
people have been associated for years and it has a racial connotation.” Pl.’s Ex. 13 (Hearing
Transcript) at 65. Nonetheless, Hill’s complaining subordinates disregarded his concerns and
ordered more gear with the logo—even though they had never owned any such gear. See Pl.’s Ex.
8 (Balocki Dep.) at 27, 32–33; Pl.’s Ex. 20 (Stockl Dep.) at 77. Hill’s subordinates wore the gear
during work hours and handed it out to local residents while deployed. See Pl.’s Ex. 1 at 61; Pl.’s
Ex. 14 (Hearing Transcript) at 629. They also made jokes about the possible racist associations of
the logo. See Pl.’s Ex. 21 at 1; Pl.’s Ex. 22. The experience of Whitaker, the only other African
American on Team 2, further supports an inference of racial animus. Record evidence shows that
white team members left Whitaker off of emails that expressed concerns about Hill’s leadership.
See Pl.’s Ex. 42; Pl.’s Ex. 43; Pl.’s Ex. 32. They also did not invite Whitaker to a meeting with
Jordan, where they discussed only “tolerat[ing] Whitaker under the right leadership.” Pl.’s Ex. 43
at 1. This constitutes additional evidence on which a reasonable jury could conclude that racial
animus motivated Stockl, Balocki, and Jones to complain about Hill.
2. Proximate cause
It is also possible for a reasonable jury to conclude that team members’ racially motivated
complaints were a proximate cause of Hill’s removal as team leader. According to an email written
by Rowan, Hill’s removal as team leader was predicated primarily on three incidents: (1) Hill’s
altercation with Balocki in the stairwell during a training exercise in June 2014, (2) his “fat”
comment and touching incident with Socha, and (3) his confrontation with Stockl while deployed
in October 2014. Def.’s Ex. 20 at 2, Dkt 34-3. But there is record evidence that supports the
13
inference that the team members’ racially motivated complaints—and not simply these incidents
underlying their complaints—were “directly related” to the decision of Hill’s superiors to remove
him as team leader. Morris, 825 F.3d at 672. As this Circuit has stated, Hill’s superiors’ delayed
response to the complaints, “by itself, could cast doubt on the [Secretary’s] proffered reason.”
DeJesus v. WP Company LLC, 841 F.3d 527, 534 (D.C. Cir. 2016). Despite the fact that Hill’s
superiors knew about the above incidents shortly after they happened, they did not take any action
against Hill until after Jones, Balocki, and Stockl voiced their concerns about Hill. See Pl.’s Ex.
15 (Hearing Testimony) at 1134; Pl.’s Ex. 16 at 1384, 1399. While it is certainly possible that
Hill’s supervisors reacted to these “nonissue[s]” in a delayed fashion because of the developing
“pattern” of allegations relating to Hill’s poor leadership, see Pl.’s Ex. 16 at 1398, 1400 (Maloy
hearing testimony), a reasonable jury could also conclude that the racial animus of Hill’s team
members was a motivating factor in Hill’s removal. See Coats v. DeVos, 232 F. Supp. 3d 81, 90
(D.D.C. 2017) (“For present purposes, it is sufficient for the Court to conclude that [the
complaining subordinates’] significant involvement in the removal proceedings . . . raises a
substantial issue of fact about whether [the final] decision was insulated from [their] subjective
views.” (cleaned up)).
What is more, at this stage, the Court cannot conclude that any independent investigation
into the allegations against Hill, see Def.’s Mem. at 24, Dkt. 34-1; Def.’s Reply at 9, Dkt. 47, was
a “superseding cause” that “br[oke] the causal chain between [any] bias and an adverse
employment action.” Morris, 825 F.3d at 672. Hill’s superiors made little to no effort to interview
witnesses of the June 2014 and October 2014 incidents, see Pl.’s Ex. 26 (Rowan Dep.) at 55, 61;
Def.’s Ex. 36 (Collura Dep.) at 52, 54, 66; Pl.’s Ex. 4 at 10; Pl.’s Ex. 25 at 4; Pl.’s Ex. 28 (Collura
Dep.) at 57. The Secretary also admits that “MSD management made the decision to temporarily
14
remove [Hill] from Team 2[, on December 12], before the [Office of Special Investigations]
investigation took place.” Def.’s Reply at 8 (emphasis added).
To be sure, there is some question whether Hill’s December 12 removal from Team 2
leadership was only meant to be temporary, see id., but too this is a disputed fact. Put another
way, it is disputed whether Hill’s December 12 removal as Team Leader was solely a measure to
separate him from the complaining members until a full investigation could be conducted, or was
also a permanent removal based on those members’ concerns. Emails suggest that Hill was to be
re-assigned to another position immediately and that Team 2 would deploy in January 2015 with
a different team leader. 3 See Def.’s Ex. 18. Further, on December 16—three days prior to the
initiation of any investigation—Rowan and Collura consulted with a Human Resources Officer,
T.J. Shelton, who advised that “removing Mr. Hill from Team 2 presented no issue” and that “a
letter of admonishment [should] be drafted and issued to Mr. Hill.” Def.’s Ex. 20 at 3. Rowan
testified that he had no “visibility on the results of the [eventual] investigation,” including even
when the investigation was completed. Pl.’s Ex. 15 (hearing transcript) at 1106. And most
importantly, Rowan also testified that Hill’s reassignment was not based on the results of the
investigation. Id.Moreover, regardless whether Hill was permanently reassigned before the investigation
was completed, there is little question that he was at least transferred on December 12, before any
investigation had even begun. After he returned from leave in December 2014, Hill was reassigned
3
For example, on December 10, 2014, well before an investigation of Hill was even initiated, a
State employee stated in an email that Rowan had asked him whether he would be available to
take over as Team 2 leader. See Pl.’s Ex. 44 at 1. And in a December 12 email, Rowen himself
appears to propose to his supervisors that they permanently remove Hill as Team 2’s leader. See
Def.’s Ex. 18 (“[I]t is in everyone’s best interest that Anthony no longer remain as [team leader]
for Team 2.”).
15
to another position, described as “desk duty” by the Office of Special Investigations. See Pl.’s Ex.
37 at 4; Def.’s Ex. 5 at 57–58. Shortly thereafter, he was offered a job as the Unit Chief of the
Mobile Training Team, which he declined. Def.’s Ex. 35 at 59–61. It is at least disputed whether
either assignment was comparable to the Team 2 leader position, as neither involved the same
supervisory or other responsibilities. See id.; Pl.’s Ex. 10 at 59–60.
In sum, there is some evidence that would enable a reasonable jury to conclude that, on
December 12, 2014, Hill was removed from his team leader position on the basis of his
subordinates’ racially motivated complaints, rather than based on any investigation.
3. Negligence of employer
Finally, a reasonable jury could conclude that the Secretary acted negligently by acting on
the discriminatory complaints of Hill’s co-workers because there is record evidence that Hill’s
superiors either knew or should have known that Jones, Balocki, and Stockl had discriminatory
motives. Most notably, in November 2014, around the same time that Team 2 members informed
Hill’s supervisors of their concerns about Hill’s performance, in an email to Team 2 and his
superiors, Hill expressed his concerns about racism in the team:
When I took over as Team Leader for Team 2 in May 2014 I informed members of
Team 2 at the time that I found the symbol for Team 2 ‘The Baboon’ offensive. I
offered to everyone to come up with a symbol that would better represent Team 2
and that everyone could get behind[;] to date I have received no recommendations.
I was shocked and disappointed to learn that some are still using the Baboon to
represent Team 2 after my objections to the image. The U.S. Equal Employment
Opportunity Commission [contains a] Race/Color Discrimination & Harassment
section[] . . . . As the only African American Team Leader in MSD I find it
extremely offensive that my Team is represented by a Baboo[n].
Def.’s Ex. 14 at 2–3. Rowan and Collura were both copied on this email. Although this email was
sent about a month before Hill was removed from his position as team leader, it is sufficient to
have put Hill’s superiors on notice that the complaining Team 2 members might be acting, at least
in part, with racially discriminatory motives when complaining about Hill.
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As noted, it is also disputed whether Hill’s superiors collected individual witness
statements or conducted any further investigation before removing Hill as team leader. See Mastro
v. Potomac Elec. Power Co., 447 F.3d 843, 856 (D.C. Cir. 2006). And to the extent that any lack
of investigation was justified because Collura witnessed the October 2014 Bangui incident or
because Hill admitted to parts of the underlying incidents, these also are disputed facts, see Pl.’s
Ex. 14 at 622–24; Def.’s Ex. 45 (Hill Dep.) at 167–68, Dkt. 43-3; Pl.’s Statement of Genuine Issues
at 3–4, 5, Dkt. 42-1, that are best left to a jury to decide.
The Court therefore will deny the Secretary’s motion. There remain genuine disputes of
material fact that preclude the Court from concluding that Hill’s co-workers did not make racially
motivated statements to have Hill removed as team leader; that these statements did not cause
Hill’s removal; or that the Secretary was not negligent in acting on the statements.
C. Retaliation
Courts also assess retaliation claims made under Title VII under the McDonnell Douglas
framework. See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). Under that framework,
the employee “must first make out a prima facie case of retaliation.” Iyoha v. Architect of the
Capitol, 927 F.3d 561, 566 (D.C. Cir. 2019). To establish a prima facie case of retaliation under
Title VII, the plaintiff must show that (1) “he engaged in statutorily protected activity”; (2) “he
suffered a materially adverse action by his employer”; and (3) “a causal link connects the two.”
Id. at 574 (internal quotation marks omitted). “If the plaintiff clears that hurdle, the burden shifts
to the employer to identify the legitimate, . . . non-retaliatory reason on which it relied in taking
the complained-of action.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). If the
employer satisfies that burden, “the central question at summary judgment becomes whether the
employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted
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. . . reason was not the actual reason and that the employer intentionally . . . retaliated against the
employee.” Id. (cleaned up).
Hill contends that he engaged in statutorily protected activity when he opposed Team 2’s
use of a baboon as its logo, and that he was retaliated against when he was removed from his
position as team leader because he had “point[ed] to racially offensive symbols and EEOC
[g]uidance.” Pl.’s Opp. at 38–39, Dkt. 42. Even assuming that Hill’s assertions are sufficient to
support a prima facie case of retaliation, the Court will grant summary judgment in favor of the
Secretary on this claim because he has provided a legitimate, non-retaliatory reason for Hill’s
removal, and Hill has produced no evidence that the reason was pretextual.
As explained above, the Secretary has offered a non-retaliatory justification for removing
Hill as team leader: Hill’s superiors were acting on the “existing friction” between Hill and his
subordinates, and the “pattern of behavior” alleged by Team 2 members. Def.’s Mem. at 28–29.
There is considerable evidence in the record that supports this rationale. Rowan testified that he
recommended Hill’s removal because “there was friction and subordinates recording what they
did,” and given that “Team 2 was going up on crisis response status,” it was better “to keep as
much of that team as possible.” Pl.’s Ex. 26 at 109. Emails from Rowan to both Hill and Hill’s
superiors reflect that the removal decision was made based on concerns around Hill’s interactions
with his subordinates. See Def.’s Ex. 11 at 3–4; Def.’s Ex. 20 at 2–3.
Hill has not provided sufficient evidence to permit a reasonable jury to conclude that this
justification was pretext for a retaliatory motive. See Walker, 798 F.3d at 1093–95 (“The evidence
of record must be such that a reasonable jury could not only disbelieve the employer’s reasons, but
conclude that the real reason the employer took a challenged action was [the] prohibited one.”);
Minter v. District of Columbia, 809 F.3d 66, 71 (D.C. Cir. 2015) (“Even if there were some
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inconsistency in the proffered rationales, Minter would still need to prove that the ‘actual reason’
for her termination was retaliatory.”). To be sure, as discussed above, supra section III.B, under
Hill’s cat’s paw theory of liability, it is conceivable that the Secretary could be liable for racial
discrimination if a jury were to find that Hill’s supervisors were on notice that his subordinates
had complained about him for racially discriminatory reasons and removed Hill from his position
based on his subordinates’ discriminatory complaints, without conducting a thorough investigation
of their accuracy. But Hill has produced no evidence that would support a claim of retaliation,
beyond the mere temporal proximity of his November 5, 2014 email to Team 2 to his December
2014 removal from his position. And, though temporal proximity “can establish a prima facie case
of retaliation, dislodging an employer’s nonretaliatory explanation as pretextual . . . requires
positive evidence beyond mere proximity.” Waggel v. George Washington Univ., 957 F.3d 1364,
1376 (D.C. Cir. 2020) (cleaned up).
If anything, the undisputed facts in the record weigh against a finding of retaliatory pretext.
After receiving Hill’s email expressing his views on the baboon logo, Hill’s superiors acted
immediately to address Hill’s concerns. The very same day that Hill emailed Team 2, Collura
emailed Maloy:
I highly recommend we eliminate all external team specific patches, coins[,] or any
other non-official items. . . . I would like to send out a [management] notice asap
explaining the elimination of all of the team specific memorabilia and the creation
of just one specific MSD patch / coin that can be utilized.
Def.’s Ex. 14 at 1. Later that same day, Collura emailed the entire Mobile Security Deployment
team:
It is important for all of us to understand sensitivities that can be construed from
team names or symbols. What might have an innocent meaning to some, can be
offensive to others. MSD management i[s] committed to a work environment that
is free of potentially offensive material or actions. From today forward, it is MSD
office policy that all unofficial team symbols, nicknames[,] or paraphernalia are
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ban[ne]d from MSD office space, vehicles[,] or uniforms. . . . An official written
policy will follow shortly[,] and violation will result in disciplinary action.
Def.’s Ex. 15. Hill has thus failed to identify any evidence in the record from which a reasonable
jury could conclude that the Secretary’s reason for removing him as team leader was retaliatory.
The Court will therefore grant summary judgment in favor of the Secretary on Hill’s retaliation
claim.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part the defendant’s motion
for summary judgment, and denies the plaintiff’s motion for partial summary judgment. A
separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
March 3, 2023
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