Salak v. McCarthy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DANIEL J. SALAK, )
)
Plaintiff, )
)
v. ) No. 15-cv-2237 (KBJ)
)
E. SCOTT PRUITT, in his official capacity as )
Administrator of the Environmental Protection )
Agency, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Daniel Salak—an employee of the Criminal Investigations Division
(“CID”) of the Environmental Protection Agency (“EPA” or “Defendant”)—has filed
the instant action against the EPA under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e–2000e-17. 1 Salak alleges that the EPA unlawfully retaliated against
him when his supervisors took affirmative steps to reassign him from CID’s
Baltimore/Ft. Meade office in Ft. Meade, Maryland, to CID’s regional office in Seattle,
Washington, immediately after Salak engaged in an activity that Title VII protects.
(See Compl. ¶¶ 1, 20.) Specifically, Salak alleges that the day after he complained that
his supervisor’s refusal to approve his request to use sick leave to care for his wife and
1
Salak’s complaint names former EPA Administrator Gina McCarthy as the defendant in this action
(see Compl., ECF No. 1, ¶ 18), but McCarthy’s successor in office—EPA Administrator Edward Scott
Pruitt—has since been automatically substituted as the defendant pursuant to Federal Rule of Civil
Procedure 25(d). Furthermore, because Administrator Pruitt is being “sued in h[is] official capacity
only” (id.), this suit functions as an action against the EPA, see Cty. Bd. of Arlington v. U.S. Dep’t of
Transp., 705 F. Supp. 2d 25, 28 (D.D.C. 2010) (“[A]n official-capacity suit is a way of pleading an
action against the agency which the official heads.”), and will be treated as such for purposes of this
Memorandum Opinion.
newborn child was “disparate treatment” of him as a “birth father” (id. ¶ 40), he was
informed that he was being transferred to the Seattle office (see id. ¶¶ 40–44). This
announced cross-country reassignment plan was eventually cancelled (see Def.’s
Statement of Mat. Facts (“Def.’s Statement”), ECF No. 19-3, ¶ 71; Pl.’s Resp. to Def.’s
Statement of Mat. Facts & Pl.’s Statement of Genuine Issues (“Pl.’s Statement”), ECF
No. 20-1, at 35 ¶ 71), but Salak contends that the threat of relocation under the
circumstances presented here constituted actionable retaliation nevertheless. 2
Before this Court at present is the EPA’s motion for summary judgment. (See
Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 19; Def.’s Mem. in Supp. of Mot.
for Summ. J. (“Def.’s Mem.”), ECF No. 19-2.) Among other things, the agency argues
that the evidence fails to demonstrate that “there is [any] causal connection between the
claimed adverse action and [Salak’s] . . . protected activity.” (Def.’s Mem. at 15; see
also Def.’s Reply in Supp. of Mot. for Summ. J. (“Def.’s Reply”), ECF No. 32, at 8
(characterizing Salak’s inability to “establish causation” as the “[m]ost fatal” defect in
his claim).) For the reasons explained below, this Court agrees. In short, because the
record clearly establishes that the EPA’s decision to transfer Salak was made prior to
Salak’s invocation of his rights under Title VII, no reasonable jury could find that the
agency decided to reassign Salak to Seattle, or took steps to implement that course of
action, because of his protected activity. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 272 (2001). Consequently, the EPA’s motion will be GRANTED, and summary
2
Page-number citations to the documents that the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.
2
judgment will be entered in favor of Defendant on all of Salak’s claims. A separate
Order consistent with this Memorandum Opinion will follow.
I. BACKGROUND
A. Basic Facts 3
Salak began working for the EPA in 2002; he served as a Special Agent in CID’s
resident office in Baltimore/Ft. Meade (which is in Maryland) at all times relevant to
this case. (See Compl. ¶ 20.) 4 “CID is one component of the Office of Criminal
Enforcement Forensics and Training . . . within EPA’s Office of Enforcement and
Compliance Assurance[,]” and “[i]t is responsible for conducting investigations into
significant violations of environmental crimes including the Clean Air Act and the
Clean Water Act, and coordinating with other federal agencies, the Department of
Justice, and Assistant United States Attorneys in prosecuting criminal violations.” (Id.
¶ 22.) The Baltimore/Ft. Meade office is a “satellite office” of a CID region that is
headquartered in Philadelphia, Pennsylvania. (Id. ¶ 1.) Salak worked at the
Baltimore/Ft. Meade office independently, with supervision coming from CID
personnel at the regional headquarters in Philadelphia. (See Def.’s Statement ¶¶ 7–10.) 5
3
The following facts concerning Salak’s employment with the EPA, his protected activity, and the
agency’s alleged adverse employment action are not disputed, unless otherwise noted.
4
Salak “was promoted to the position of Resident Agent in Charge . . . of the Baltimore/Ft. Meade
Resident Office” in June of 2012, roughly two years after the conclusion of the events that are relevant
to this case. (Pl.’s Statement at 37 ¶ 6.)
5
The complaint contains a helpful explanation of the relationship between CID’s “resident” and
“regional” offices and the types of supervisors within these offices:
CID is comprised of ten “area” or “regional” offices around the country. Each
of these offices is headed by a Special Agent in Charge (“SAC”) who reports to
the Deputy Director, and an Assistant Special Agent in Charge (“ASAC”), who
reports to the SAC. Each area office contains a number of smaller “resident”
offices within them, generally headed by a Resident Agent in Charge (“RAC”).
(Compl. ¶ 23.)
3
1. Salak’s Supervisors Decide To Transfer Him To An Office Where
There Is More Supervision
The saga that brings the parties before this Court apparently began in
conjunction with a dispute between Salak and his second-line supervisor—Special
Agent in Charge (“SAC”) David Dillon—regarding whether Salak was entitled to use
accumulated sick leave to care for his wife and newborn child after the child was born
prematurely. In September of 2009, Salak notified Dillon and his other immediate
supervisor (Assistant Special Agent in Charge (“ASAC”) Christian Spangenberg) that
he intended to use his accumulated sick leave as soon as the child was born, as he
believed was his right under the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq.
(“FMLA”). (See Compl. ¶¶ 26–27.) When the child was born unexpectedly one month
later, Salak informed Spangenberg that he would be out of the office on FMLA leave.
(See id. ¶ 28.) When Salak returned to work following the period of leave, he and
Dillon clashed throughout December of 2009 concerning whether the leave time Salak
had taken would be deemed approved, or whether he would have to use other annual
leave to cover the absence retroactively or take leave without pay. (See id. ¶¶ 29,
31–36.) Dillon retroactively cancelled all but four days of Salak’s paid sick leave, and
also—over Salak’s objections—rescinded Salak’s temporary detail to the CID resident
office in Syracuse, New York. (See id. ¶¶ 36–37).
A series of related meetings and communications ensued, some of which were
with Salak present, and with this FMLA dispute on full display. (See, e.g., U.S. Office
of Special Counsel Draft Report (“OSC Draft Report”), Ex. 4 to Pl.’s Statement, ECF
No. 20-6, at 5 (at a staff meeting on January 5, 2010, Dillon “emphasized to [Salak and
other] agents the importance of following the chain of command” and Salak “asked
4
SAC Dillon what he should do if he had a problem with SAC Dillon and wanted to file
a grievance” under the FMLA); see also Compl. ¶ 38 (Salak “informed” Dillon during
the January 5, 2010, staff meeting “that he would be filing a grievance” under the
FMLA “over Mr. Dillon’s continued denial of his sick leave requests”).) Other contacts
involved various agency supervisors and focused on Dillon’s characterizations of
Salak’s general insubordination. (See OSC Draft Report at 5 (after learning on January
5, 2010, that Salak had attempted to arrange a temporary detail for himself in another
CID region without Dillon’s knowledge or approval, Dillon called CID Deputy Director
Douglas Parker to complain that Salak “[i]s acting as an ‘independent operator,’” and to
say that they “‘gotta do something’” because Salak’s “behavior need[s] to stop”); see
also id. (Dillion emailed Parker, ASAC Spangenberg, and CID counsel Laura
Fentonmiller to assert that Salak “thinks he is above everyone else and can do whatever
he pleases to get whatever he wants[,]” and had “circumvent[ed]” the “Chain of
Command”).) The record shows that Dillon’s complaints about Salak’s performance
stemmed at least in part from Dillon’s conclusion that Salak had “fail[ed] to
demonstrate the ability to work independently such that he should [not] remain in a
resident office without day-to-day supervision[,]” and had shown a “pattern of
exercising poor judgment as a Special Agent” which “dictat[ed] [the need for] closer
supervision[.]” (Mem. from Dillon to Barnes (Jan. 11, 2010) (“Final Transfer Mem.”),
Ex. F to Def.’s Statement, ECF No. 19-10, at 2; see also id. at 3 (identifying specific
examples of Salak’s “questionable decisions[,]” including his “plan[] to do [a] consent
search with no operations plan as required by regulations”).)
5
Significantly for present purposes, the record evidence demonstrates that Dillon
specifically suggested either “reassigning” Salak or “issuing him a letter of reprimand”
as of January 5, 2010, and that Dillon actually “began putting together paperwork in
support of . . . Salak’s reassignment” on that date. (OSC Draft Repot at 5.)
Additionally, Dillon’s complaints about Salak kicked off a flurry of reassignment-
related activity that continued throughout the week of January 5th. For example, on
January 6th, Spangenberg sent Dillon a draft memorandum “to address the issue of . . .
Salak being re-assigned to the Philadelphia Area Office.” (Email from Spangenberg to
Dillon (Jan. 6, 2010) (“Draft Transfer Mem.”), Ex. 5 to Pl.’s Statement, ECF No. 20-7,
at 3.) In this memorandum, which was drafted on Dillon’s behalf, Spangenberg stated
that the primary reason for the proposed transfer was to provide Salak with the
“immediate and/or direct supervision” that he lacked in the Baltimore/Ft. Meade office,
and Spangenberg “ask[ed] that . . . Salak be re-assigned with[] haste in order to bring
command and control to his daily routine and provide the leadership he sorely needs.”
(Id.) Spangenberg also specifically recommended that Salak be reassigned to
Philadelphia—the regional headquarters—but stated that he “support[ed] other possible
duty location assignments [beyond the Philadelphia office] based on the needs of the
Division.” (Id.)
CID management continued revising the draft reassignment memorandum the
following day (see Emails dated Jan. 7, 2010 (“Jan. 7 Emails”), Ex. 6 to Pl.’s
Statement, ECF No. 20-8, at 2–7), and Dillon wrote that he wanted to inform Salak of
the planned transfer the following Monday, January 11, 2010 (see id. at 6). Deputy
Director Parker also sent an email to Dillon and Spangenberg, to “follow up [on] our
6
discussions over the past months regarding . . . Salak’s need for direct supervision in an
area office (that needs additional staffing),” and to express his “support [for] such a
re-assignment[.]” (Email from Parker to Dillon (Jan. 8, 2010) (“Jan. 8 Parker-Dillon
Email”), Ex. 7 to Pl.’s Statement, ECF No. 20-9, at 2.) Parker’s email further asked
Dillon to “finalize and send a memo to [CID] Director [Becky] Barnes requesting
consideration for [the transfer]” so that they could “work to move forward” (id.), and
Parker also reached out to Barnes directly, saying that he wanted to “talk with [her] . . .
re[garding] the possible re-assignment of Salak to an area office where he could get
appropriate supervision.” (Email from Parker to Barnes (Jan. 8, 2010) (“Jan. 8
Parker-Barnes Email”), Ex. D to Def.’s Statement, ECF No. 19-8, at 2). Parker added
that he had already discussed the transfer with others, and that Dillon wanted to “meet
with Salak and advise him [of the reassignment], if approved, by next Friday[, January
15, 2010].” (Id.)
The following week—on January 11, 2010—Dillon sent a final, signed
memorandum to Parker and Barnes in which he recommended that Salak “be
immediately re-assigned to the Philadelphia Area Office, and then permanently
re-assigned to an Area Office with the need for another agent.” (See Final Transfer
Mem. at 2.) 6 Then, on the same day that this final transfer memorandum was
6
Salak claims “there is no evidence that this Memo” was actually ever transferred to CID leadership,
“or that it was even drafted on January 11.” (Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”),
ECF No. 20, at 19.) But as the EPA points out, the record in this case includes “sworn affidavits
stating that the memorandum was drafted and sent on January 11, 2010,” as well as “witness
testi[mony] stating, under oath, that this memorandum was sent on January 11, 2010[.]” (Def.’s Reply
at 11 n.4 (citations omitted); see, e.g., Dillon Aff. (Feb. 9, 2011), Ex. B to Def.’s Statement, ECF No.
19-6, at 5 (Dillon stating that he sent the memorandum to Director Barnes “[o]n January 11, 2010”);
Barnes Aff. (Feb. 15, 2011), Ex. C to Def.’s Statement, ECF No. 19-7, at 5 (Barnes stating that she
“received the [January 11th] memorandum from SAC Dillon”); EEOC Hr’g Tr. (Aug. 20, 2015), Ex. H
to Def.’s Statement, ECF No. 19-12, at 5 (Parker testifying that Dillon sent the January 11th
memorandum to Barnes).)
7
transmitted to CID leadership, Spangenberg contacted Salak to arrange the
aforementioned meeting with Dillon in Philadelphia on January 15, 2010. (See Emails
dated Jan. 11, 2010 (“Jan. 11 Salak-Dillon Emails”), Ex. J to Def.’s Statement, ECF No.
19-14, at 3.) Salak followed up by emailing Dillon to request “a list of specific issues”
to be discussed at the meeting, and when Dillon declined to provide the requested
information, Salak replied that he would “be requesting the presence [of] counsel” if the
“meeting is to address any issues that could lead to a disciplinary action[.]” (Id. at 2.)
Salak asked Dillon to inform him if any such issues would be discussed, “thus
warranting legal counsel being present[,]” and Dillon responded that “[n]o disciplinary
action [would be] involved[.]” (Id.)
2. Salak’s January 14th Memorandum and The January 15th Meeting
On the eve of the January 15th meeting, Salak wrote a memorandum to Dillon in
which he stated, among other things, that his rights under “Title VII of the Civil Rights
Act of 1964” were being infringed by Dillon’s “singl[ing] out [Salak’s]
pregnancy-related conditions for special procedures related to [his] work or sick leave.”
(Mem. from Salak to Dillon (Jan. 14, 2010) (“Jan. 14 Salak Mem.”), Ex. K to Def.’s
Statement, ECF No. 19-15, at 4.) In the memorandum, Salak also asserted that “if you
continue to deny me the leave requested . . . or attempt to take any retaliation against
me whatsoever for exercising my rights, I will pursue all of my rights . . . to appeal
your decision, including a complaint to the Office of Special Counsel and a personal
civil suit, if necessary.” (Id.)
When Salak met with Dillon and Spangenberg the next morning in Philadelphia,
he was told that a “re-assignment to the Seattle Area Office” had been “recommended”
and “approved by Headquarters[,]” and that, pending Salak’s permanent reassignment to
8
Seattle, he was to report to the Philadelphia office three days a week. (Mem. to File
(Jan. 15, 2010), Ex. M to Def.’s Statement, ECF No. 19-17, at 2.) That same morning,
Dillon requested that “the Permanent Change of Station process for . . . Salak for his
directed re-assignment” to the Seattle office be “initiate[d].” (Email from Dillon (Jan.
15, 2010), Ex. 8 to Pl.’s Statement, ECF No. 20-10, at 2.)
B. Related Administrative Proceedings
On January 25, 2010, ten days after the meeting in Philadelphia, Salak filed a
complaint with the U.S. Office of Special Counsel. (See Def.’s Statement ¶ 69.) 7 Over
the next two months, not only did the EPA “suspend[] the decision to reassign” Salak to
the Seattle office (id. ¶ 70), but Salak was also told that he no longer needed to report to
Philadelphia three days a week (see id. ¶ 72). A year later, in April of 2011, the agency
cancelled the planned reassignment entirely. (See id. ¶ 71; see also Email from
Saunders to Wood (Apr. 29, 2011), Ex. 35 to Pl.’s Statement, ECF No. 20-31, at 2.) In
the meantime, however, Salak had filed a formal complaint of discrimination and
retaliation with either the Equal Employment Opportunity Commission (“EEOC”)
(according to Defendant) (see Def.’s Statement ¶ 73), or the EPA’s Office of Civil
Rights (according to Salak) (see Pl.’s Statement at 35–36 ¶ 73). This complaint, which
was filed in March of 2010, “alleg[ed] disparate treatment, harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964[,]” on grounds that “the [a]gency
subjected [Salak] to disparate treatment based on sex (male), disability (associated with
a disabled individual) and retaliation based on protected EEO activity when” it
7
The Office of Special Counsel is an independent prosecutorial agency that investigates claims by
federal employees of prohibited personnel practices by government agencies, including the EPA.
9
informed Salak that “he was being reassigned to Seattle, Washington[.]” (EEOC Order
(Sept. 21, 2015), Ex. R to Def.’s Statement, ECF No. 19-22, at 5.)
On September 21, 2015, an EEOC Administrative Judge (“AJ”) issued a decision
that rejected Salak’s retaliation claim. (See generally id.) 8 The AJ found that, although
the agency’s decision to initiate the process to reassign Salak to Seattle qualified as an
adverse employment action and Salak had previously engaged in a protected activity
(i.e., he had complained about alleged discrimination in violation of Title VII), Salak
had failed to establish that “Dillon was aware of [Salak’s] protected EEO activity at the
time he proposed [Salak’s] reassignment[,]” or that there was “a causal connection
between [Dillon’s] decision to reassign [Salak] and the purported EEO activity.” (Id. at
13 (emphasis added).) In this regard, the AJ found that Salak’s “protected activity did
not occur until January 14, 2010[,] when he sent Dillon a memorandum asserting
protection under Title VII with respect to his requests for leave related to his wife’s
8
Salak has filed a contested motion that requests that this Court strike the AJ’s opinion, and any
reference to it, from the record in the instant case, on grounds that it interferes with his right to a trial
de novo in federal court. (See generally Pl.’s Mot. to Strike EEOC Admin. Judge Decision, ECF No.
23; see also Def.’s Opp’n to Pl.’s Mot. to Strike, ECF No. 25; Pl.’s Reply in Supp. of Mot. to Strike,
ECF No. 30.) Salak’s motion to strike will be DENIED, and the AJ’s decision will be deemed admitted
for purposes of Defendant’s motion for summary judgment, for several reasons. First, it is well
established that “motions to strike, as a general rule, are disfavored.” Stabilisierungsfonds Fur Wein v.
Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981). Additionally, the Supreme
Court has found that “[p]rior administrative findings made with respect to an employment
discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo.”
Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976); see also Scott v. Johanns, 409 F.3d 466, 470
(D.C. Cir. 2005) (“[T]he Court [in Chandler] drew no distinction between discrimination claims
resolved in favor of the complainant and those resolved against the complainant[; i]n all cases,
administrative findings may ‘be admitted as evidence.’”); cf. Goldsmith v. Bagby Elevator Co., 513
F.3d 1261, 1288 (11th Cir. 2008) (“[A]n EEOC determination is ordinarily admissible.”). Whether or
not to admit such findings—including EEOC-related findings in Title VII cases—is within the “sound
discretion of the district court[,]” Barfield v. Orange Cty., 911 F.2d 644, 650 (11th Cir. 1990), and
judges in this district routinely cite to EEOC findings and related proceedings in ruling on motions for
summary judgment in Title VII discrimination and retaliation cases, see, e.g., Walker v. McCarthy, 170
F. Supp. 3d 94, 100 (D.D.C. 2016) (discussing EEOC findings in decision granting defendant’s motion
for summary judgment on disparate treatment and retaliation claims). This Court sees no reason why
the AJ’s findings should be deemed inadmissible here.
10
pregnancy and child birth[,]” and that “[t]he preponderant evidence establishes that Mr.
Dillon was not aware of [Salak’s] EEO activity” at the time he proposed Salak’s
reassignment, or when he “sent [the January 11, 2010, final transfer] memorandum to
[Director] Barnes with the [formal] reassignment request.” (Id.) Moreover, with
respect to Salak’s assertion that the transfer was retaliatory because “Dillon was upset
that [Salak] went outside of the chain of command to independently verify Agency
policy regarding requests for FMLA leave,” the AJ concluded that such alleged
retaliation was not actionable under Title VII because Salak’s “actions in this regard do
not constitute protected activity under Title VII[.]” (Id.)
C. Procedural History
Salak initiated the instant Title VII action on December 22, 2015, three months
after the AJ’s decision. (See generally Compl.) Salak’s complaint alleges that the EPA
retaliated against him in violation of Title VII by (1) threatening to reassign him to
Seattle (see id. ¶¶ 71–78 (Count I)); (2) proceeding with the reassignment process,
which included executing documents to effectuate his transfer to Seattle (see id.
¶¶ 79–88 (Count II)); and (3) failing to cancel the reassignment and/or failing to notify
him that the reassignment had been cancelled timely (see id. ¶¶ 89–100 (Count III)). 9
The parties have completed discovery, and the EPA has now filed a motion for
9
In this regard, Salak’s complaint creatively repackages one allegedly retaliatory act of the EPA—its
proposed reassignment of him from the Baltimore/Ft. Meade office to the Seattle office—into three
separate claims, even though the complaint does not provide any legal or factual basis for doing so.
That is, the only retaliatory adverse employment action that is actually alleged in Salak’s complaint is
the agency’s decision to transfer him to Seattle—its execution of the transfer-related documents was
merely a means of implementing this decision, and the agency’s failure to cancel or rescind its transfer
decision in a timely fashion is, at most, an aggravating factor with respect to the injury that resulted
from the allegedly retaliatory act.
11
summary judgment with respect to all of Salak’s claims. (See generally Def.’s Mot.;
Def.’s Mem.)
In its summary judgment motion, the EPA concedes that Salak engaged in an
activity that Title VII protects on January 14, 2010, when he communicated to SAC
Dillon that he was invoking his rights under Title VII. (See Def.’s Mem. at 11–12.)
But the agency argues that Salak did not suffer an adverse action because his
reassignment to Seattle was not executed and was ultimately cancelled (see id. at
12–14), and that even if Salak was subjected to an adverse action, the challenged
employment decision occurred before he had engaged in any protected activity because
the reassignment was proposed, deliberated, and approved prior to January 14th (see id.
at 15–18). The EPA further maintains that it had legitimate, nondiscriminatory, and
non-pretextual reasons for reassigning Salak, given his poor job performance and the
need for more direct supervision. (See id. at 18–20.)
In his brief in opposition to the summary judgment motion, Salak maintains that
the threat to transfer him and his family across the country to Seattle was an adverse
action under the anti-retaliation provision of Title VII (see Pl.’s Opp’n at 39–43), and
that regardless of whether the agency had already initiated the process to transfer him to
some undetermined office before he engaged in the protected activity, the decision to
transfer him to Seattle had not already been made, and that location was selected at
least in part as retaliation for the protected activity. (See id. at 34–39.) Salak also
contends that he has adduced sufficient evidence to demonstrate that the agency’s
purported reasons for the transfer were a pretext for retaliation. (See id. at 43–48.)
12
Defendant’s motion for summary judgment became ripe for this Court’s review
on November 3, 2016. (See Def.’s Mot.; Def.’s Mem.; Pl.’s Opp’n; Def.’s Reply; Pl.’s
Sur-Reply in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Sur-Reply”), ECF No. 33-1.)
Because this Court concludes that Salak has failed to produce sufficient evidence for a
reasonable jury to find that the alleged adverse employment actions were caused by his
protected activity—which is a necessary element of his retaliation case, as explained
fully below (see infra Parts III.A–B)—it need not consider whether the threatened (but
unconsummated) transfer constituted an adverse employment action under Title VII’s
anti-retaliation provision, or whether Salak has demonstrated that the agency’s stated
reasons for the transfer were pretextual.
II. LEGAL STANDARDS
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides that a court shall grant summary
judgment “if the movant 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). A
fact is “material” if it might affect the outcome of the suit under the governing law, and
a dispute about a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict for a nonmoving party. Steele v. Schafer, 535 F.3d 689, 692
(D.C. Cir. 2008). To make this determination, a court must review all evidence in the
light most favorable to the nonmoving party, and not only must it draw all justifiable
inferences in the nonmoving party’s favor, it must also accept the nonmoving party’s
evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
13
Importantly, however, the nonmoving party has to establish that more than a
“mere . . . scintilla of evidence” exists in support of its position. Id. at 252; see also
Potter v. District of Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009) (“[M]erely colorable
or not significantly probative evidence . . . is insufficient to defeat a summary judgment
motion.” (internal quotation marks and citation omitted)). Nor can the nonmoving party
rely on allegations or conclusory statements; instead, it must present specific evidence
that would enable a reasonable jury to find it its favor. Greene v. Dalton, 164 F.3d 671,
675 (D.C. Cir. 1999); see also Blue v. Perciasepe, 970 F. Supp. 2d 34, 42 (D.D.C.
2013) (“The nonmoving party’s opposition . . . must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or
other competent evidence, setting forth specific facts showing that there is a genuine
issue for trial.”); cf. Potter, 558 F.3d at 549 (“On summary judgment, the district court
is to give credence to uncontradicted and unimpeached evidence supporting the moving
party[.]”).
B. Title VII Retaliation And The Plaintiff’s Burden Of Proof
Title VII prohibits retaliation against an employee “because he has opposed any
practice made an unlawful employment practice by [Title VII], or because he has made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). A plaintiff who
seeks to prove that he has been subjected to unlawful retaliation must show that (1) he
engaged in an activity that Title VII protects; (2) his employer took a materially adverse
action against him; and (3) the employer took the action because of the protected
activity. See McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012); Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); see also McGrath, 666 F.3d at 1380 n.3
14
(explaining these are “the elements that a plaintiff must ultimately prove in order to win
his case”).
“It has long been recognized that proving the aforementioned elements of a Title
VII retaliation claim can be quite difficult for an employee when, as is often the case,
[he] lacks direct evidence of retaliation (or discrimination).” Rochon v. Lynch, 139 F.
Supp. 3d 394, 402 (D.D.C. 2015) (citing Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121 (1985)), aff’d, 664 F. App’x 8 (D.C. Cir. 2016). Of course, relying on
circumstantial evidence is another permissible method of establishing one’s case, and
the Supreme Court has adopted guidelines to aid judicial analysis of the strength of a
Title VII case that is based on such evidence. Under the familiar burden-shifting
framework that arose from the seminal Supreme Court case of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), a plaintiff alleging retaliation and relying on
circumstantial evidence first points to evidence of a prima facie case—i.e., “(1) that he
engaged in statutorily protected activity; (2) that he suffered a materially adverse action
by his employer; and (3) that a causal link connects the two.” Jones, 557 F.3d at 677.
And if a plaintiff identifies such evidence, the burden of production—but not
persuasion—shifts to the defendant to provide “a legitimate, nondiscriminatory [or
non-retaliatory] reason” for its actions. Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 142 (2000) (internal quotation marks and citation omitted). Then, if the defendant
does provide such a reason for the challenged employment action, “the McDonnell
Douglas framework—with its presumptions and burdens—disappear[s],” leaving only
the ultimate question of “discrimination vel non[.]” Id. at 142–43 (internal quotation
marks and citations omitted). And on that question, the plaintiff bears the burden of
15
showing that a reasonable jury could find that the defendant’s proffered reasons are
pretextual and that the real impetus for the adverse action was discriminatory or
retaliatory animus. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008); Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 654 (D.C. Cir.
2003).
Thus, “if the defendant has proffered a non-discriminatory reason for its
challenged decision[,]” then “whether the plaintiff really made out a prima facie case is
no longer relevant because the district court has before it all the evidence it needs to
decide whether the defendant intentionally discriminated against the plaintiff[,]”
Rochon, 139 F. Supp. 3d at 403–04 (internal quotation marks and citation omitted), and
ultimately, it is the plaintiff’s burden to make that showing, see Brady, 520 F.3d at 494.
In other words, summary judgment in the defendant’s favor may still be warranted
“even when a plaintiff sets forth sufficient evidence to reject the defendant’s
explanation,” if, based on all of the evidence presented, “it is nevertheless impossible
for a rational factfinder to conclude the action was discriminatory [or retaliatory].”
Rochon, 139 F. Supp. 3d at 404 (internal quotation marks and citation omitted); see also
e.g., von Muhlenbrock v. Billington, 579 F. Supp. 2d 39, 43–45 (D.D.C. 2008) (granting
defendant’s motion for summary judgment with respect to a Title VII retaliation claim
because the plaintiff failed to establish a causal connection between protected activity
and adverse action).
III. ANALYSIS
A Title VII retaliation claim “must be proved according to traditional principles
of but-for causation,” which “requires proof that the unlawful retaliation would not
16
have occurred in the absence of the alleged wrongful action or actions of the employer.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); see also Ng v.
Lahood, 952 F. Supp. 2d 85, 91 n.4 (D.D.C. 2013) (“In order to succeed on a retaliation
claim under Title VII, a plaintiff must show that retaliation was the but-for cause of the
adverse employment action at issue.”). This means that the employee’s protected
activity must be the impetus for the employer’s adverse and allegedly retaliatory
employment action, and the action cannot have already been “contemplat[ed]” by the
employer “before it learned” of the protected activity. Breeden, 532 U.S. at 272.
Consequently, while causation can sometimes be inferred from a close temporal
relationship between the protected activity and the allegedly adverse action in
retaliation cases, the sequence truly matters—and indeed, the Supreme Court has
clarified that “[e]mployers need not suspend previously planned [adverse employment
actions] upon discovering that” the employee has engaged in a protected activity. Id.
In such circumstances, even if the employment action had “not yet [been] definitively
determined,” there “is no evidence whatever of causality” if the employer continues to
“proceed[] along lines previously contemplated[.]” Id.
Here, the unrebutted evidence demonstrates that the EPA had already decided to
transfer Salak out of CID’s Baltimore/Ft. Meade office before he invoked his rights
under Title VII, and as explained below, the evidence that the parties have proffered
leaves no doubt that the agency’s decision to transfer Salak to Seattle, as opposed to
some other duty station, was a mere continuation of this previously contemplated course
of action. Therefore, this Court concludes that no reasonable jury could find that the
EPA’s decision to reassign Salak to Seattle constituted unlawful retaliation in violation
17
of Title VII—i.e., that the transfer decision was made because of Salak’s protected
activity—and on that basis alone, the agency is entitled to summary judgment.
A. Salak Cannot Show Causation Because The Record Establishes That
The Reassignment Process Was Initiated Before He Engaged In Any
Title VII Protected Activity
Both parties agree that Salak first engaged in activity that Title VII protects on
January 14, 2010—when he sent a memorandum to SAC Dillon that suggested he was
the victim of pregnancy discrimination and invoked his rights under Title VII. (See
Compl. ¶¶ 6, 40; Def.’s Mem. at 11–12; Pl.’s Opp’n at 6, 19–20; Def.’s Reply at 5, 8;
see also Jan. 14 Salak Mem. at 4 (alleging that the denial of his sick leave request
violated the requirement of Title VII that “an employer may not single out
pregnancy-related conditions for special procedures related to an employee’s work or
sick leave”).) Nothing that occurred before Salak transmitted that memorandum
(including his earlier threat to file a grievance under the FMLA over Dillon’s persistent
denial of his sick leave requests) constitutes protected activity under Title VII, nor is
the prior FMLA battle relevant to the question of whether Salak’s Title VII allegation
was a but-for cause of the threatened transfer. See Sotomayor v. City of New York, 862
F. Supp. 2d 226, 262 (E.D.N.Y. 2012) (“While [plaintiff] alleges that she was retaliated
against for taking FMLA leave, this is not a ‘protected activity’ under Title VII[.]”);
Male v. Tops Markets, LLC, No. 08-cv-6234, 2010 WL 4319769, at *2 (W.D.N.Y. Oct.
29, 2010) (rejecting Title VII retaliation claim because plaintiff’s complaints regarding,
inter alia, FMLA violations were not protected activity under Title VII); Saellam v.
Norfolk S. Corp., No. 06-0123, 2008 WL 5286836, at *11 (W.D. Pa. Dec. 19, 2008)
(“Plaintiff’s taking of FMLA leave [and/or] his complaints about alleged FMLA
harassment . . . are not protected activity within the meaning of Title VII.”). Salak has
18
brought the instant case only under Title VII, and he does not assert a violation of the
FMLA in the context of this action. 10 Therefore, the relevant benchmark for the
retaliation claim that is the subject of this lawsuit is Salak’s invocation of his rights
under Title VII on January 14, 2010.
Salak vigorously maintains that “there can be no dispute that [his] January 14,
2010 email was a determinative factor, and hence a ‘but-for’ cause, of [the agency’s]
decision to select . . . a [transfer] location that it knew would be financially and
practically unfeasible”—i.e., Seattle. (Pl.’s Opp’n at 34–35.) But Salak cannot deny
that, even prior to his January 14th missive, his supervisors had already decided to
reassign him from the Baltimore/Ft. Meade location to another CID office, and had
taken steps to initiate the transfer process.
Specifically, the undisputed evidence shows that, at least as early as January 5,
2010—which was more than a week before Salak penned the January 14th
memorandum—Dillon wrote to CID counsel and senior leadership to suggest
“reassigning” Salak. (OSC Draft Report at 5.) Dillon and others within CID, including
senior leadership, then spent several days discussing and revising a formal proposal for
Salak’s reassignment (see Draft Transfer Mem. at 2–3; Jan. 7 Emails at 2–7; Jan. 8
Parker-Dillon Email at 2; Jan. 8 Parker-Barnes Email at 2), and on January 11th Dillon
transmitted a signed memorandum to Deputy Director Parker and Director Barnes that
proposed Salak “be immediately re-assigned to the Philadelphia Area Office, and then
permanently re-assigned to an Area Office with the need for another agent” (Final
10
In their papers, the parties note that Salak brought (and eventually settled) a separate administrative
FMLA claim against the EPA before the Merit Systems Protection Board (“MSPB”). (See Compl.
¶¶ 14–15; Def.’s Mem. at 12 n.3; Def.’s Reply at 9–10.) That settlement was sealed at the agency’s
request, and is not on the record before this Court. (See Compl. ¶ 15 & n.1; Pl.’s Opp’n at 8 n.2.)
19
Transfer Mem. at 2). And this formal memorandum was not the only affirmative step
that Salak’s supervisors took to effectuate his planned reassignment: they also
communicated to Salak that he was required to attend a January 15th meeting in
Philadelphia, the purpose of which was (unbeknownst to Salak) to inform him of the
pending transfer. (See Jan. 11 Salak-Dillon Emails at 2–3.) Indeed, it was not until the
evening before the meeting at which the transfer was to be disclosed to Salak that he
first invoked his rights under Title VII (see Jan. 14 Salak Mem. at 2–4), and by that
time, his transfer was not only being contemplated, it was well underway.
The fact that the official transfer announcement may not have been finalized
prior to Dillon’s receipt of Salak’s Title VII memorandum on January 14th is of no
moment. It is clear beyond cavil that “[e]mployers need not suspend previously
planned transfers upon discovering” that the employee has made Title VII accusations.
Breeden, 532 U.S. at 272; see also Cruz v. Kelly, 241 F. Supp. 3d 107, 113 (D.D.C.
2017) (citing Breeden, 532 U.S. at 272) (rejecting Title VII retaliation claim arising
from the plaintiff’s reassignment to another position, because “those actions had
already been put into motion with the decision to remove [the plaintiff] from her
position in the first place”), appeal docketed, No. 17-5113 (D.C. Cir. May 22, 2017).
Moreover, the reason for this principle is obvious: without such a rule, the judicial
system risks “ever-increasing frequency” of baseless “claims of retaliation” from
employees who hurriedly invoke Title VII and allege discriminatory treatment ahead of
a suspected adverse employment action just to provide a legal basis for subsequent
retaliation claims against their employers. See Nassar, 133 S. Ct. at 2531–33. Indeed,
with the following hypothetical, the Supreme Court has underscored this very concern:
20
Consider in this regard the case of an employee who knows that he or
she is about to be fired for poor performance, given a lower pay grade,
or even just transferred to a different assignment or location. To
forestall that lawful action, he or she might be tempted to make an
unfounded charge of racial, sexual, or religious discrimination; then,
when the unrelated employment action comes, the employee could
allege that it is retaliation. If respondent were to prevail in his argument
here, that claim could be established by a lessened causation standard,
all in order to prevent the undesired change in employment
circumstances.
Id. at 2532.
The record before this Court strongly suggests that this same cautionary tale is
playing out here. It is clear that Salak suspected that he would be disciplined at the
January 15, 2010, meeting with SAC Dillon in Philadelphia; indeed, he specifically
voiced these suspicions. (See Jan. 11 Salak-Dillon Emails at 2 (“If this meeting is to
address any issues that could lead to a disciplinary action, I will be requesting the
presence o[f] counsel. Please let me know by [close of business] today if there will be
any issues discussed that could lead to a disciplinary action[.]”).) And Salak invoked
his rights under Title VII on the eve of the very meeting at which he believed that his
fate would be determined. (See generally Jan. 14 Salak Mem.) Thus, far from giving
rise to actual retaliation, “the timing of [Salak’s protected] activity appears to indicate
that it was a strike against agency officials after learning that” he would potentially be
subject to disciplinary action, in a manner that was designed to provide him with a basis
for claiming retaliation later. Robinson v. Duncan, 775 F. Supp. 2d 143, 156 (D.D.C.
2011); see also id. (noting the employer “had already arranged to meet with plaintiff” to
“discuss her performance and to inform her that a sixty-day performance plan was being
implemented” on the “very [same day]” that the plaintiff informed the employer of her
EEO complaint). (Cf. Jan. 14 Salak Mem. at 4 (warning Dillon that, “if you . . . attempt
21
to take any retaliation against me whatsoever for exercising my rights, I will pursue all
of my rights as a federal employee to appeal your decision; including a complaint to the
Office of Special Counsel and a personal civil suit, if necessary”).)
In sum, there is no genuine dispute regarding the fact that CID management had
already decided to transfer Salak, and had taken concrete steps to effectuate that
transfer, before Salak engaged in any activity that Title VII protects. Thus, the
evidence does not support Salak’s claim that it was his protected activity that caused
the allegedly retaliatory transfer. See Cruz, 241 F. Supp. 3d at 113.
B. The Record Demonstrates That The EPA’s Decision To Reassign
Salak To Seattle Was A Continuation Of The Previously
Contemplated Course Of Action
Salak’s attempt to establish the requisite causal link by asserting that the EPA’s
decision to transfer him to Seattle was still pending when he invoked his rights under
Title VII, and that that decision was made in retaliation for his protected activity (see
Pl.’s Opp’n at 35 (arguing that “reassignment to Seattle was not considered, much less
initiated, until January 15, 2010”); id. at 37 (maintaining that, if not for his asserting his
rights under Title VII, the agency would have transferred him “to Philadelphia, . . .
which would have been perfectly workable for [Salak] and his family”)), fails for at
least two reasons.
First of all, the record evidence strongly suggests that the EPA had, in fact,
already selected Seattle as the locus for Salak’s reassignment by the time he engaged in
the protected activity. The timing of the announcement supports this conclusion; it is
hard to fathom that a placement in Seattle could have been conceived of and arranged
between Salak’s submission of the memorandum on the evening of January 14th and the
January 15th meeting the following morning at which the transfer plan was disclosed.
22
What is more, Deputy Director Parker repeatedly testified under oath (during a related
EEOC proceeding in August of 2015) that he had personally informed SAC Dillon of
the decision to transfer Salak to Seattle “[e]arly in the week of January 11th.” (EEOC
Hr’g Tr. at 9; see also id. at 44–45 (testifying that he told Dillon that Salak would be
transferred to Seattle “[e]arlier in the week of January 11th”).) Parker also testified that
Dillon would have lacked authority to inform Salak of the transfer to Seattle during the
January 15th meeting unless a specific transfer to that office had already been approved
by senior CID and EPA leadership. (See id. at 8–9.) And, when asked if “there [was]
any doubt in your mind” that Salak’s “transfer to Seattle was a done deal” before the
January 15th meeting in Philadelphia, Parker answered that “[i]t had been decided prior
to that[; i]t was done before that[;]” and “[t]he decision had been made.” (Id. at
45–46.)
Parker’s EEOC testimony is consistent with an affidavit that Director Barnes has
offered, in which she states that, “[a]fter receiving the [final transfer] memorandum
from SAC Dillon, I consulted with . . . Parker, to see what CID office needed or could
support another [Special Agent] and I determined that the Seattle, Washington office
would be the best location for Mr. Salak and CID.” (Barnes Aff. at 5.) Parker’s
testimony is further corroborated by ASAC Spangenberg’s deposition testimony in a
related MSPB proceeding, where he too testified that the decision to transfer Salak to
Seattle was made before Salak submitted the January 14th memorandum; specifically,
when asked about the draft transfer memorandum that Spangenberg sent to Dillon on
January 6, 2010, Spangenberg testified that he had discussed Salak’s transfer to Seattle
with Dillon around the time that he wrote the memorandum, and “had information [to
23
the] effect” that the permanent reassignment would be to Seattle, including an
understanding “[t]hat SAC Dillon, along with Laura Fentonmiller and Deputy Director
Parker, had knowledge of . . . [Salak’s] reassignment to Seattle.” (Spangenberg MSPB
Dep. (July 9, 2013), Ex. A to Def.’s Resp. to Pl.’s Statement of Genuine Issues, ECF
No. 32-2, at 35–38.) 11
Salak does little to cast doubt on these sworn accounts from knowledgeable
supervisors regarding the details of the agency’s reassignment decision. For example,
while it may be true that Parker stated during a previous deposition that he “could not
recall precisely when he informed Mr. Spangenberg that Mr. Salak’s reassignment was
going to be to Seattle” (Pl.’s Opp’n at 36 (citing Parker EEOC Dep. (Apr. 25, 2014),
Ex. to Pl.’s Statement, ECF No. 20-49, at 27)), Parker’s inability to “recall precisely”
the exact date of his transmittal of the information to Spangenberg does not contradict
his repeated and unequivocal assertion that the agency’s decision to transfer Salak to
Seattle was made before January 14th. Nor does the fact that Dillon and Parker
“discussed ways to ‘get rid of’” Salak on the morning of January 15th (Pl.’s Sur-Reply
at 2 (citation omitted)) impact the credibility of Parker’s statement that the agency had
already decided to transfer Salak to Seattle well before the meeting at which it informed
11
Salak challenges the content of Spangenberg’s testimony in a sur-reply brief that he has sought leave
of Court to file. (See Pl.’s Mot. for Leave to File Sur-Reply (“Pl.’s Mot. for Leave”), ECF No. 33; Pl.’s
Sur-Reply.) The EPA opposes Salak’s motion for leave, and the motion is ripe for this Court’s review.
(See Def.’s Opp’n to Pl.’s Mot. for Leave to File Sur-Reply, ECF No. 34; Reply in Supp. of Pl.’s Mot.
for Leave to File Sur-Reply, ECF No. 35.) Although sur-replies are “generally disfavored,” Banner
Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012), this Court finds that the EPA cited to
Spangenberg’s deposition testimony for the first time in its reply brief, and that allowing the sur-reply
will not unduly prejudice Defendant. See id. (“In exercising its discretion, the court should consider
whether the movant’s reply in fact raises arguments or issues for the first time, whether the
nonmovant’s proposed surreply would be helpful to the resolution of the pending motion, and whether
the movant would be unduly prejudiced were leave to be granted.”). Therefore, Salak’s motion for
leave to file a sur-reply is GRANTED, and the Court has considered the arguments raised in the
sur-reply in this Memorandum Opinion.
24
him of that choice. Salak’s contention that absent the protected activity he would have
been reassigned to Philadelphia, instead of Seattle (see id. at 2–3 (citing Spangenberg
EEOC Dep. (Mar. 27, 2014), Ex. to Pl.’s Statement, ECF No. 20-51, at 13); id. at 4
(citing Draft Transfer Mem.)), further mischaracterizes the clear record evidence, which
demonstrates that the agency’s discussion of a transfer to Philadelphia was in the
context of a temporary reassignment; nothing contradicts the testimony and
documentary evidence demonstrating that the agency always intended for Salak’s
permanent reassignment to be to Seattle (see Spangenberg EEOC Dep. at 13; Final
Transfer Mem. at 2; see also Jan. 8 Parker-Dillon Email at 2 (supporting Salak’s
reassignment to “an area office (that needs additional staffing)”)).
Notably, Salak’s causation-related contentions would be unavailing even if the
EPA had not definitively determined that he would be sent to Seattle by the eve of the
scheduled meeting to announce the transfer, because Salak has failed to show that a
selection of the Seattle office on the day after his January 14th memorandum is at all
inconsistent with the agency’s previously contemplated transfer plan. See Breeden, 532
U.S. at 272 (holding that, where protected activity intervenes, there is “no evidence
whatever of causality” if the adverse action is “along [the] lines previously
contemplated”); Cruz, 241 F. Supp. 3d at 113 (explaining that the plaintiff must
demonstrate that his “protected activity [somehow] alter[ed] the course of events” that
had already been set in motion). Put another way, the plan that Salak’s supervisors had
crafted clearly involved his “immediate[]” reassignment to Philadelphia on a temporary
basis, followed by his “permanent[] re-assign[ment] to an Area Office with the need for
another agent” (Final Transfer Mem. at 2), and Salak has not shown that a proposed
25
final transfer to the Seattle office diverged from this plan; say, for example, by pointing
to evidence showing that the agency had previously decided not to send him to Seattle,
but somehow changed its mind after he engaged in protected activity.
Properly viewed, then, Salak’s contention that “sending him almost 3000 miles
away” (i.e., to Seattle) was “not even remotely ‘along’ the same ‘lines’” as the plan to
send him to Philadelphia (see Pl.’s Opp’n at 38) is a red-herring argument that merely
pertains to the adverse nature of the proposed employment action, and does not speak to
its consistency with the agency’s predetermined reassignment plan. As such, it is
entirely beside the point. Even accepting arguendo that a cross-country reassignment is
more adverse than a transfer to nearby Philadelphia, Salak’s causation burden is to
establish that the EPA selected Seattle over Philadelphia (or anywhere else, for that
matter) because of his protected activity—i.e., that the agency changed course with
respect to what it had previously determined it would do in a manner that gives rise to a
reasonable inference of retaliation. See Nassar, 133 S. Ct. at 2531–33; Breeden, 532
U.S. at 272; Cruz, 241 F. Supp. 3d at 113; see also Brown v. Diversified Distribution
Sys., LLC, 801 F.3d 901, 908 (8th Cir. 2015) (noting plaintiff’s failure to “produce[]
[any] evidence to rebut” defendant’s affidavit and deposition testimony that the
plaintiff’s transfer was “discuss[ed] . . . before she requested FMLA leave” (internal
quotation marks and citation omitted)). But, here, the record is abundantly clear that
the EPA had planned to transfer Salak to another office, and in fact had already taken
concrete steps to effectuate that transfer, before Salak submitted the January 14th Title
VII memorandum, and there is no evidence to indicate that its announcement of his
26
transfer to Seattle on January 15th was anything other than a mere continuation of that
plan.
Although Salak struggles valiantly to argue otherwise, the bottom line is this:
courts in this district and elsewhere have routinely rejected any “inference of causation”
when “the adverse action being challenged is the result of a nondiscriminatory process
that began before the protected conduct.” Bush v. Engleman, 266 F. Supp. 2d 97, 103
(D.D.C. 2003) (granting summary judgment on Title VII retaliation claim because “the
uncontradicted record indicates that the decision to implement the transfer resulted
from an independent review process that began months before plaintiff’s EEO activity”
(emphasis in original)); see also, e.g., Weston-Brown v. Bank of Am. Corp., 167 F.
App’x 76, 82 (11th Cir. 2006) (finding no causal link to establish Title VII retaliation
because “[t]he record evidence establishe[d] that” the plaintiff’s immediate supervisor
“informed his supervisors . . . well before the” plaintiff engaged in protected activity
“that he felt that it would ‘be prudent to remove [the plaintiff] from’” a particular
account); Mianulli v. Potter, 634 F. Supp. 2d 90, 98 (D.D.C. 2009), aff’d in part, No.
09-5284, 2010 WL 604867 (D.C. Cir. Jan. 21, 2010) (finding no causal link between
protected activity and alleged Title VII retaliation the very next day, because “an
adverse employment action taken after protected activity is not caused by the protected
activity if the employment action was contemplated prior to the protected activity”);
Carter v. Greenspan, 304 F. Supp. 2d 13, 30 (D.D.C. 2004) (rejecting Title VII
retaliation claim due to “a lack of evidence of causation” where “[t]he sworn
declarations submitted by [the] defendant consistently aver[red] that . . . management
had decided to fire [the plaintiff]” before he engaged in protected activity, which
27
demonstrated that “[the plaintiff’s] supervisors’ dissatisfaction with his performance
and their intentions to terminate him predated his protected activity” and rendered “his
retaliatory discharge claim . . . illogical”). And given these well-settled precedents, this
Court easily concludes that Salak has failed to demonstrate that his protected activity
was a “but-for caus[e]” of the decision to transfer him to Seattle, Nassar, 133 S. Ct. at
2533, or that the agency’s selection of Seattle, even if “not yet definitively
determined,” was not “along lines previously contemplated[.]” Breeden, 532 U.S. at
272; cf. Samii v. Billington, 195 F.3d 1, 3 (D.C. Cir. 1999) (“Since the ultimate burden
of persuasion in proving retaliation remains with the plaintiff, summary judgment is
appropriate when the employee is unable to satisfy this burden.”).
IV. CONCLUSION
For the reasons explained above, this Court finds “that there is [no] evidence
(either of a direct or indirect nature) from which a reasonable jury could find the
required causal link between” Salak’s protected activity and the threatened transfer to
Seattle. Jones v. Quintana, 975 F. Supp. 2d 63, 78 (D.D.C. 2013) (internal quotation
marks and citation omitted), aff’d, 621 F. App’x 7 (D.C. Cir. 2015). Accordingly, and
on that basis alone, Defendant’s motion for summary judgment will be GRANTED and
judgment will be entered in favor of Defendant on all of Salak’s claims, as set forth in
the accompanying Order.
DATE: September 30, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
28