Sykes v. Chertoff

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LARRY J. SYKES, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-42 (RMC)
)
JANET NAPOLITANO, Secretary, )
Department of Homeland Security, )
)
Defendant. )
)
MEMORANDUM OPINION
Larry J. Sykes was the Special Agent in Charge of the Secret Service detail that
protected Claudia “Lady Bird” Johnson, former First Lady of the United States, from April 2003 to
September 2005, when he was involuntarily reassigned to the position of Assistant Special Agent
in Charge at the Secret Service’s J.J. Rowley Training Center. Mr. Sykes complains here that the
reassignment was an adverse employment action due to his race, African American. Having
carefully studied the parties’ briefs and voluminous exhibits, the Court concludes that Mr. Sykes’s
reassignment within the Secret Service was not an adverse employment action within the meaning
of Title VII case law and that, even if it were, there is a dearth of evidence to show pretext in the face
of the Secret Service’s legitimate, non-discriminatory reasons for the transfer. Summary judgment
will be granted to the Defendant.
I. FACTS
Without a doubt, Larry J. Sykes has had an impressive career in the Secret Service
(“Service”).1 He joined the Service as a GS-7 Special Agent on June 13, 1983. Because of the
nature of the Secret Service, on his first day he signed an “Acknowledgement of Employment
Reassignment Condition,” accepting “as a condition of employment that [he] may be geographically
reassigned at the discretion of the Secret Service” throughout his career. Def.’s Mot. [Dkt. #32], Ex.
3, Sykes Acknowledgment (“Acknowledgment”). Mr. Sykes first worked in the Indianapolis Field
Office until September 1987, rising to a GS-12 along the way. In September 1987, he was
reassigned and geographically relocated to the Western Protective Division, where he was promoted
to the GS-13 level. In early 1992, at his request, he was transferred to the Los Angeles Field Office.
Less than a year later, Mr. Sykes transferred to the Santa Barbara Resident Office, which falls under
the L.A. office and did not require that he move. In late 1994, at his request, he transferred to the
Chicago Field Office.
In 1998, Mr. Sykes requested and received a transfer to the training division of the
Secret Service so that he would be in “the career path that would lead to additional promotion within
the Secret Service.” Def.’s Mot., Ex. 1, Deposition of Larry Sykes (“Sykes Dep.”) 112. In 2000,
Mr. Sykes bid for and received a promotion to a GS-14 Assistant to the Special Agent in Charge
(“ASAIC”) position on the Vice Presidential Protective Division, where he was engaged in training
agents. He bid for and received a reassignment in 2002 to a GS-14 ASAIC position in the
1
Since 2001, the Secret Service has been a constituent agency of the Department of
Homeland Security, whose Secretary, Janet Napolitano, is sued in her official capacity. The Service
is a law enforcement agency with two primary duties: (1) the protection of the President and Vice
President and their families, including former Presidents and Vice Presidents and their families, and
visiting foreign heads of state, 18 U.S.C. § 3056(a), and (2) the investigation and arrest of individuals
who violate criminal laws relating to, inter alia, government bonds, coins, obligations, electronic
fund transfers, credit and debit card fraud, false identification documents, and fraud committed
against financial institutions. 18 U.S.C. § 3056(b).
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Investigative Support Division in Secret Service Headquarters in Washington, D.C. Mr. Sykes then
bid for and received a promotion to a GS-15 Special Agent in Charge (“SAIC”) position in 2003 to
head the Johnson Protective Division (“JPD”), which provided protection to Lady Bird Johnson.
Mrs. Johnson, the widow of former President Lyndon Baines Johnson, was in her
nineties at the time. There were no directed threats towards Mrs. Johnson and the detail was very
slow-paced. As SAIC, Mr. Sykes’s duties were to oversee “the operations, budget, and security of
JPD . . . as well as all personnel actions relating to its operations.” Compl. ¶ 18. Mr. Sykes
supervised one GS-14 ASAIC and nine to eighteen other employees, which included Special Agents
and special officers. Sykes Dep. 157; Compl. ¶ 18. The JPD worked at three locations: the field
office in Austin, Texas; Mrs. Johnson’s Austin residence located approximately six miles from the
field office; and the Lyndon Baines Johnson ranch located approximately fifty miles away from the
field office.
As SAIC of the Johnson Protective Division, Mr. Sykes reported directly to the
Deputy Assistant Director (“DAD”) of the Office of Protective Operations, Thomas Grupski.
Starting in June 2003, his second line supervisor was Assistant Director (“AD”) of the Office of
Protective Operations, Mark Sullivan.2
A. Office Inspection
A routine office inspection was conducted on the Johnson Protective Division in
December 2004. Mr. Sykes was attending a family funeral out of town and was not present during
the week-long inspection. The lead inspector informed Mr. Sykes, in a close-out telephone
conference, that his recommended rating would be “good.” Pl.’s Opp’n [Dkt. #37] (“Opp’n”),
2
Mr. Sullivan is currently the Director of the Secret Service.
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Excerpts of Sykes Deposition (“Sykes Excerpts”) 264-65.3 However, the final 2004 Inspection
Report reflects that the JPD received an overall evaluation of “Fair.” Def.’s Mot., Ex. 4, 2004
Inspection Report (“2004 Inspection Report”) 5. In the Management Section of the report, the JPD
received a “Recommendation,” which is the lowest rating a division can receive. Id. Under the prior
SAIC, the Johnson Protective Division’s management had been rated “Very Good” in a 2002
inspection report.
The 2004 Inspection Report stated that “[e]mployees were critical of the chronic
absence of supervisors during in-district protective motorcade movements, particularly movements
to the Lyndon Baines Johnson (LBJ) Ranch”; that “[e]mployees were critical of the lack of a
consistent supervisory presence at the Austin residence and the LBJ Ranch when the protectee is in
residence”; and that “[e]mployees were critical of the perceived lack of adequate interpersonal
communication between supervisors and detail personnel, as well as the fact that most
communication is accomplished through e-mail and written directives.” Id. at 5-6. Further, the 2004
Inspection Report stated that “[i]n concert with the comments offered by division personnel, and to
a greater extent as a result of the review of protective operations, the inspection team concluded that
Johnson PD supervisors have exercised insufficient direct oversight of personnel and the division
as a whole.” Id. at 6. As a result, “[t]he inspection team determined that the SAIC and ASAIC of
the Johnson PD are not sufficiently engaged in the daily activities of the detail,” id. at 12, and that
there was “clear indication of sick leave abuse.” Id. at 10. The latter was caused by Mr. Sykes’s
custom of allowing Special Agents to supplement their annual leave with sick leave. Sykes Dep.
3
Plaintiff and Defendant attached different excerpts from the deposition of Mr. Sykes.
Plaintiff’s excerpts are filed as attachments to his Opposition and can be found at Docket #37-5 and
#37-6.
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276-78. The 2004 Inspection Report recommended that “the SAIC and ASAIC urgently re-evaluate
and drastically improve upon their degree of personal participation in protective movements, as well
as their level of interaction with and direct supervision of division employees.” 2004 Inspection
Report 6.
The lead inspector contacted Mr. Sykes twice by telephone after their initial
conversation. First, about a week after the inspection, the lead inspector told Mr. Sykes that the
overall JPD rating was being downgraded from “good” to “fair” after a briefing session with AD
Sullivan and DAD Grupski. Sykes Excerpts 383-384. Second, the lead inspector later informed Mr.
Sykes that after further conversation with DAD Grupski, the Johnson Protective Division’s rating
would be further downgraded to a “fair with recommendations.” Id. at 384-86. Having the
“recommendations” attached to the rating was a downgrade in itself because it meant the JPD would
have to be re-inspected. Id. at 386.
During an in-person briefing in Washington, D.C., Mr. Sykes was advised of the
results of the inspection. Id. at 268. Mr. Sykes was counseled in writing regarding the results of the
inspection and of the need for improvement. Mr. Sykes drafted a memorandum to the Director of
the Secret Service outlining specific corrective actions the Johnson Protective Division would adopt
to respond to the noted deficiencies. He cleared drafts of this document with DAD Grupski, who
eventually approved the final memorandum. Mr. Sykes indicated that supervisory block coverage
would be scheduled for each weekend but that additional coverage would require overtime of more
than eight hours each weekend. DAD Grupski directed Mr. Sykes to remove the language
concerning overtime. Id. at 271-273. In the end, DAD Grupski ordered Mr. Sykes to submit a final
version of the memo that Mr. Sykes opposed. Id. Thereafter, Mr. Sykes worked overtime without
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payment. Id. at 274-75.
B. The Special Inspection
In late November 2004, Mr. Sykes met with Special Agent (“SA”) Brian McKenna,
a JPD agent, at SA McKenna’s request. SA McKenna informed Mr. Sykes that one of the female
agents on the Johnson Protective Division did not want a particular male agent to be the Scheduler,
who assigns the various agents to their shifts. The parties do not agree on whether SA McKenna
provided Mr. Sykes with a reason for this request, but it is not material to disposition of the motion.
What is clear is that Mr. Sykes thereafter directed that the two agents not be scheduled to work
together and that the male agent not be the Scheduler, as Mr. Sykes had originally intended. Sykes
Dep. 238-244. The next day Mr. Sykes told the female agent that he had granted her request that the
male agent not be the Scheduler. Id. at 244. Mr. Sykes also met separately with the male agent and
the female agent to ascertain the motivation for the request. Mr. Sykes states that neither spoke of
any inappropriate behavior. Sykes Excerpts 242-45.
That was not the end of the matter. On February 4, 2005, DAD Rebecca Ediger in
Secret Service Headquarters received an email from SA Scott Kelly of the Johnson Protective
Division alleging that a male agent had exposed himself to a female agent while on duty, that the
incident had been reported to Mr. Sykes, and that no corrective action had occurred. Def.’s Mot.,
Ex. 10, Email from SA Kelly. As a result, a special inspection of the JPD was undertaken during
February 8-10, 2005, which involved, among other things, interviews with all agents on the detail.
During these interviews, SA McKenna stated that he had advised Mr. Sykes during their November
2004 meeting that a male agent had exposed himself to a female agent on two separate occasions.
Mr. Sykes denies that SA McKenna reported any such event and states that SA McKenna only told
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him that the female agent was not comfortable working with the male agent. When interviewed, the
accused male agent admitted that he had exposed himself to the female agent on two occasions; he
was suspended for 60 days as discipline.
C. Mock Memoranda
In early April 2005, mock memoranda and a gun range poster with plastic knives
attached were discovered at the Johnson Residence Command Post. Taped to the back of the gun
range poster were plastic knives with the terms “GS-14,” “GS-15,” “EEO,” and “T #” (transfer
number) written on them. The poster had a caption: “Fun For the Whole Family: A New USSS
Game ‘Stab Your Way to the Top.’” Opp’n, Ex. 11, May 2005 Fact Finding Mem. (“2005 Fact
Finding”) 35. The fake memoranda — some of which were potentially threatening — spoke of
various issues including workplace violence4, Bible verses, and a “Four Step Get Over It Process”
to allegedly help Service employees deal with a “growing trend” of supposed broken promises.5 Mr.
Sykes contacted DAD Grupski with respect to these issues. He then drafted and directed a memo
dated April 11, 2005, to the Chief of the Personnel Division and to AD Sullivan stating that SA
4
One memo included the following language:
“It is impossible to determine who will assault coworkers, but
considering the strong correlation between Service employees and the
precursors of workplace violence, and the easy access of agents to
lethal weapons, this [sic] Service determined that something must be
done to mitigate the likelihood of [a] violent situation.”
2005 Fact Finding 39.
5
In speaking of the “steps” to get over the alleged broken promises, the memo defined two
steps as “[d]enial - [t]he state of refusing to accept that a senior member of my Secret Service family
could treat me like a bastard step child born of a Mongolian gang bang[]” and “[a]nger - [t]he desire
to lash out at the above member of my ‘family’ through legal, congressional, verbal, physical or any
combination of the aforementioned means.” 2005 Fact Finding 40.
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McKenna “appears to be suffering from a psychotic disorder” and identifying SA McKenna as the
individual who had “apparently authored” all of the mock memoranda and whose written comments
were contained on the gun range poster. Opp’n, Ex. 12, Sykes April 11, 2005 Memo 1, 9.
However, on April 25, 2005, SA Michael Moore, another Special Agent at the
Johnson Protective Division, sent an email to DAD Grupski admitting that he had authored the
majority of the five mock memoranda. A fact-finding team consisting of DAD Grupski and ASAIC
Robert Buster went to the Johnson Protective Division on April 26, 2005 to interview the employees.
During the investigation, SA Moore told them that he had created five of the six mock memoranda.
SA Moore stated that the mock memoranda, which were dated April 1, 2005, were intended to be
an April Fool’s Day joke. SA McKenna acknowledged that he had created the sixth memo, entitled
“Four Step Get Over It Process.” SA Kelly admitted to the investigators that he had created the gun
range target poster with the plastic knives.
Mr. Sykes was briefed about the fact-finding efforts and its conclusions on April 27,
2005. Immediately thereafter, in Mr. Sykes’s presence, DAD Grupski called AD Sullivan and
briefed him on the results of the fact-finding investigation. Mr. Sykes then voiced his objections to
the findings to AD Sullivan. At the end of the conversation, AD Sullivan advised Mr. Sykes that
he would be reassigned.
D. Comparators
On April 28, 2005, Mr. Sykes was reassigned from his SAIC position to the position
of ASAIC at the J.J. Rowley Training Center (“Training Center”) in Maryland. The reassignment
was from one Supervisory Criminal Investigator GS-15 position to another Supervisory Criminal
Investigator GS-15 position. Therefore, Mr. Sykes retained the same pay and grade. Mr. Sykes was
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fully compensated for the expenses related to his relocation from Texas to Maryland. Mr. Sykes was
not the only GS-15 considered for the ASAIC position at the Training Center. Two other GS-15s
bid on the same position that Mr. Sykes was ultimately given: one was a GS-15 SAIC and one was
a GS-15 Inspector. Def.’s Mot., Ex. 16, Prewitt Decl. 3.
There were twenty-two ASAICs stationed at the Training Center between January 1,
2000 and December 31, 2005. Def.’s Statement of Mat. Facts (“Def.’s Facts”) ¶ 59. Of these
twenty-two ASAICs, four had been SAICs immediately prior to their assignment to the Training
Center as ASAICs. Id. One of these individuals had been the SAIC of the Office of Protective
Operations. Id. With regard to career development, in subsequent assignments, five of the twenty-
two ASAICs have served or are serving as Deputy Assistant Directors and one is currently serving
as an Assistant Director in the Office of Investigations. Id. ¶ 60. Of the twenty-two ASAICs, ten
were accepted into the Senior Executive Service Candidate Development Program and four were
placed into SES-level positions. Id. ¶ 61. Of those who were placed into SES-level positions, one
had been an SAIC in the Office of Administration immediately prior to becoming an ASAIC at the
Training Center. Id.Since his reassignment to the Training Center, Mr. Sykes has not bid for
reassignment. Sykes Dep. 349. Mr. Sykes explains that he has “no reason to believe that [now-
Director Sullivan] would be receptive . . . to assigning me to any other position.” Sykes Dep. 350.
However, Mr. Sykes has not spoken with Director Sullivan about the possibility of reassignment.
Id. In the four years since his reassignment, Mr. Sykes has not competed for the Senior Executive
Service Candidate Development Program. Def.’s Facts ¶ 72. Though he has not actively sought
outside employment, Mr. Sykes has received approximately four job offers since his reassignment
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from the SAIC of the Johnson Protective Division to the ASAIC at the Training Center. Sykes Dep.
349, 355-57.
In his current assignment at the Training Center, Mr. Sykes directly supervises four
GS-14s and is the second-line supervisor of approximately twenty-four employees.6 Sykes Dep. 352-
54. While he was the SAIC at the Johnson Protective Division, Mr. Sykes supervised one GS-14
ASAIC and approximately nine Special Agents and four special officers. Sykes Dep. 157-58.
Currently, Mr. Sykes oversees the Training Management Branch, which consists of four different
Sections: the Administration Section, the Mission Research Policy Development Section, the
Registrar Section, and the Student Affairs Section. This branch administers and oversees the
Service’s administrative procedures, policy development, and student affairs as well as the
coordination and registration of all internal and external training. On July 19, 2005, Mr. Sykes filed
a formal administrative complaint with the Secret Service, alleging discrimination on account of his
race.7
Lady Bird Johnson passed away on July 11, 2007. The SAIC of the Johnson
6
In his deposition, Mr. Sykes testified that he supervises a total of approximately 24
employees at the Training Center. Sykes Dep. at 352-54. In an earlier affidavit, he stated that he
supervises approximately 32 employees. Def.’s Mot., Ex. 18, Sykes Decl. 3. For purposes of
comparison to his prior position as the SAIC at the Johnson Protective Division, the difference is not
material.
7
One aspect of Mr. Sykes’s complaint concerned a new pay system, commonly known as
HR MAX, see Compl. ¶¶ 59, 74, but that new system has not been implemented and there are no
plans to do so. See Def.’s Mot., Ex. 22, HR MAX Rescission Notice; Def.’s Facts ¶ 76. This Court
enjoined implementation of HR MAX in a separate matter. See Nat'l Treasury Employees Union v.
Chertoff, 385 F. Supp. 2d 1 (D.D.C. 2005); see also Nat'l Treasury Employees Union v. Chertoff,
452 F.3d 839 (D.C. Cir. 2006) (affirming in part and upholding the injunction of HR MAX). Thus,
the Court will ignore arguments concerning the HR MAX system as a source of potential economic
injury to Mr. Sykes.
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Protective Division at the time of her death was reassigned to an ASAIC position. Def.’s Facts ¶ 70.
The Johnson Protective Division was then disbanded.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be
granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against
a party that “after adequate time for discovery and upon motion . . . 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). To
determine which facts are “material,” a court must look to the substantive law on which each claim
rests. Anderson, 477 U.S. at 248. A “genuine issue” is one whose resolution could establish an
element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at
322.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion for
summary judgment, the moving party must show that the nonmoving party “fail[ed] 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, 477 U.S. at 322. By pointing to the
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absence of evidence proffered by the nonmoving party, a moving party may succeed on summary
judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory
statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party
must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the
evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations omitted).
III. ANALYSIS
Title VII prohibits an employer from discriminating on the basis of race, color,
religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of
employment, and in classifying employees in a way that would adversely affect their status as
employees. See 42 U.S.C. § 2000e-16. Under Title VII, a plaintiff must first establish a prima facie
case of racial discrimination by showing that “(1) [he] is a member of a protected class; (2) [he]
suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.” Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137 (D.C. Cir. 2008) (noting that
the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973) applies in employment discrimination cases).
After a plaintiff puts forth a prima facie case, the burden shifts to the defendant to
“articulate some legitimate, nondiscriminatory reason” for the employer’s action. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Once the defendant has “asserted a
legitimate, non-discriminatory reason for the decision, the district court need not -- and should not
-- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). At this point the
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McDonnell Douglas framework melts away and the relevant question becomes whether the plaintiff
has “produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee on the basis of race . . . .” Brady, 520 F.3d at 494; see also Kersey v. Wash.
Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009) (noting that once defendant offers a
non-discriminatory reason for employment action, “to survive summary judgment the plaintiff must
show that a reasonable jury could conclude from all of the evidence that the adverse employment
decision was made for a discriminatory [or retaliatory] reason.”) (quoting Lathram v. Snow, 336 F.3d
1085, 1088 (D.C. Cir. 2003)).
Although Mr. Sykes is a member of a protected class as an African American, it is
disputable whether he has demonstrated that his reassignment constitutes an adverse employment
action under Title VII. However, this inquiry is mostly irrelevant at this stage because the Defendant
has offered a justification for its decision to reassign Mr. Sykes. Therefore, the central question is
whether Mr. Sykes has provided sufficient evidence for a reasonable jury to find that the Defendant’s
stated reasons for his reassignment were a mere pretext for discrimination. See Brady, 520 F.3d at
494.
The Court finds that Mr. Sykes has not rebutted the Service’s proffered reasons for
his reassignment. The ample record supports the Service’s assertion that Mr. Sykes was reassigned
based on the perceptions of his first and second line supervisors that he had been less than effective
managing the relatively small Johnson Protective Division. Then-AD Sullivan decided to reassign
Mr. Sykes after the disappointing report from the 2004 office inspection of the JPD, the sexual
harassment incidents and management’s response, low morale demonstrated by the mock
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memoranda and gun range target, and Mr. Sykes’s accusation that one of his agents had engaged in
misconduct caused by a psychotic disorder prior to any substantive investigation. Only suspicion,
not evidence, supports Mr. Sykes’s argument that his transfer to the Training Center constituted an
adverse action based upon race. Mr. Sykes fails to demonstrate a genuine issue of material fact that
the Service’s reassignment of him was a mere pretext for racial discrimination. Summary judgment
will be granted to the Defendant.
A. The Reassignment to the Training Center Was Not An Adverse
Employment Action8
In order to constitute an adverse action that is subject to redress under Title VII, an
employee must experience, due to his protected status, a “significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.
Cir. 2007). “[M]ere idiosyncracies of personal preference are not sufficient to state an injury. . . .
Purely subjective injuries, such as dissatisfaction with a reassignment . . . or public humiliation or
8
The Service has provided a legitimate, non-discriminatory reason for its reassignment of
Mr. Sykes, therefore, whether Mr. Sykes has established his prima facie cases of discrimination is
not the fundamental question. See Brady, 520 F.3d at 494. Although analysis of whether Mr. Sykes
has demonstrated an adverse employment action may be unnecessary, see, e.g., Dews-Miller v.
Clinton, 2010 U.S. Dist. LEXIS 41288 *54-55 n. 18 (D.D.C. Apr. 27, 2010) (foregoing an analysis
of whether plaintiff had established an adverse employment action — although suggesting as much
— and instead proceeding directly to consideration of whether discrimination was proven); Kersey
v. Wash. Metro. Area Transit Auth., 533 F. Supp. 2d 181, 197 (D.D.C. 2008) (bypassing analysis of
prima facie case in granting summary judgment as plaintiff failed to rebut the defendant’s non-
discriminatory justification for its conduct), this discussion provides a further rationale for the
granting of summary judgment and greater context as to whether the evidence supports a claim of
discrimination. See Royall, 548 F.3d at 144 (noting that a court “must determine whether a
reasonable jury could infer discrimination based on the prima facie case, the plaintiff’s challenge to
the employer’s proffered justification, and any other evidence of discrimination”) (quotations
omitted).
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loss of reputation . . . are not adverse actions.” Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir.
2002) (citations omitted).
A lateral transfer — even to another state — that is unaccompanied by a diminution
in pay, benefits, or significant responsibilities will not generally rise to the level of an adverse
employment action. See Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 71 (2006)
(finding that “reassignment of job duties is not automatically actionable”). For a lateral transfer to
constitute an adverse action it must impose “materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a reasonable
trier of fact could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. Therefore, even
without a diminution in salary, grade level, or benefits, a lateral transfer can constitute an adverse
action if the new responsibilities are sufficiently less important. See Czekalski v. Peters, 475 F.3d
360, 364 (D.C. Cir. 2007). The fact that job duties may be different or less desirable is not enough;
there must be “significantly different — and diminished — supervisory and programmatic
responsibilities.” Id. (quotations omitted). In other words, a “transfer that does not involve a
demotion in form or substance, cannot rise to the level of a materially adverse employment action.”
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); see also Stewart v. Evans, 275 F.3d 1126, 1134
(D.C. Cir. 2002) (finding that “[a]n employment decision does not rise to the level of an actionable
adverse action . . . unless there is a tangible change in the duties or working conditions constituting
a material employment disadvantage”) (citation omitted); Baloch v. Kempthorne, 550 F.3d 1191,
1197 (D.C. Cir. 2008) (finding no adverse action where plaintiff’s new responsibilities “did not
constitute qualitatively inferior work requiring any less skill or knowledge”).
Mr. Sykes argues that this particular reassignment meets the legal definitions of an
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adverse employment action, despite the similarity of his pay9 and benefits, because his reporting
chain is longer and the “change in title alone — from SAIC to ASAIC — is quite significant in the
Secret Service, a hierarchical organization where titles denote an agent’s standing and power . . . .”
Opp’n. 25-26. The longer reporting chain — first to the Deputy SAIC of the Training Center, second
to the SAIC of the Training Center, and third to the DAD for Training, instead of reporting directly
to the DAD for Protective Operations — does not, by itself, demonstrate anything but the
organization of the Secret Service. Only if Mr. Sykes can demonstrate that his current position
entails, inter alia, fewer significant responsibilities, fewer high-graded direct reports, or fewer
promotion opportunities, might the longer reporting chain in this particular agency, for this particular
assignment, take on significance. Furthermore, although the Service might “lend a lot of credence
to titles,” Opp’n, Sullivan Dep. 15210, the Defendant has demonstrated that Mr. Sykes is one of
several who served as an SAIC and then went on to an ASAIC position. See Def.’s Mot., Ex. 21,
O’Donnell Declaration.11 In fact, the move from an SAIC to an ASAIC does not appear to be
uncommon, nor does the record show that such a move would necessarily come with any attached
stigma.
9
Mr. Sykes’s base pay as a GS-15 remains the same after his reassignment. In fact, due to
a change in locality, Mr. Sykes’s annual salary increased slightly from $137,600 to $142,840.
10
Found at Docket #37-5.
11
Mr. Sykes complains that the Defendant improperly introduces evidence of the
assignments and reassignments of other SAICs without having produced that data during discovery.
Opp’n 36-37. Such a complaint is a canard. Mr. Sykes and his experienced counsel were notified in
the Defendant’s initial disclosures that a personnel representative with knowledge of the
bidding/reassignment process would have useful information. Specifically, Defendant identified Ms.
O’Donnell as one of the people who contributed information to Defendant’s interrogatory responses.
There was no failure on Defendant’s part. Mr. Sykes did not follow these leads.
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Recognizing these legal requirements, Mr. Sykes argues that his duties at the Training
Center are “greatly diminished” from his prior position. Opp’n 26. While it is true that his duties
have definitely changed, it cannot be said that they are “greatly diminished.” While Mr. Sykes
enjoyed operational autonomy as the SAIC of the Johnson Protective Division, it was a quiet
assignment, with no direct threats to an elderly, ill person, with a small complement of agents. At
the Johnson Protective Division, Mr. Sykes supervised an ASAIC and approximately nine Special
Agents and four special officers, whereas at the Training Center, Mr. Sykes directly supervises four
GS-14s and is the second-line supervisor of approximately twenty-four employees. Although Mr.
Sykes may prefer to supervise Special Agents, see Opp’n 31, this change does not represent
significantly diminished supervisory responsibilities.
Mr. Sykes now directs four divisions with overall responsibility for the Service’s
administrative procedures and policy development for the entire Training Center, as well as student
affairs and the registrar. Def.’s Facts ¶ 66. It encompasses training for all of the Service’s
employees — numbering between 6,500 and 6,700 — from Special Agents and Uniformed Division
Officers to administrative, professional and technical staff. Id. While Mr. Sykes may have “no roll
in conducting training, developing curriculum, or making policy related to the Training Center,”
Opp’n 31, and may only do administrative paperwork, id., the record fails to establish that Mr.
Sykes’s responsibilities have been “greatly diminished.” While the scope of his present
responsibilities may not be as satisfying to Mr. Sykes as leading a protective detail, it cannot
objectively be said that his present duties are any less critical to the mission of the Secret Service or
that his responsibilities have been significantly diminished.
Regarding his promotion possibilities, Mr. Sykes argues that his current position is
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“much less visible” than his prior position as SAIC of a protective division. Opp’n 26. He contends
that the protective work of the Secret Service is the more prestigious work in the agency and,
therefore, his reassignment from a protective detail to the Training Center “was an effective
demotion in terms of his supervisory reporting relationships, title, duties, and visibility within the
agency.” Opp’n 26-27. Mr. Sykes cites himself for these propositions. Id. The Court does not
disagree that an involuntary transfer from the JPD to the Training Center might have affected Mr.
Sykes’s standing and promotion opportunities within the Secret Service but there is no objective or
historical evidence to support this proposition. SAICs have become ASAICs at the Training Center
and other ASAICS within the Training Center have certainly advanced within the Service. Mr.
Sykes has completely failed to test the question by applying for promotion or SES consideration.
There is simply nothing in the record to suggest that an assignment to the Training
Center is an obstacle to a career within the Service, and nothing in Mr. Sykes’s career since that
reassignment suggests that he is barred from further advancement. His reviews have ranged from
acceptable to exemplary. Opp’n, Ex. 13, Sykes Reviews. Mr. Sykes’s subjective belief that he
cannot further succeed is insufficient to demonstrate that the reassignment was an adverse action
when the evidence indicates otherwise.12
12
Mr. Sykes argues that he “lost pay,” Opp’n 32-33, as a result of the reassignment because
he is no longer eligible for an SAIC bonus and he is subject to Maryland State income tax. Plaintiff
admits that his reassignment “did not adversely change his base pay.” Compl. ¶ 51. There is no such
thing as an SAIC bonus; Mr. Sykes remains as eligible now as he was at the JPD to receive awards
and he has, in fact, received multiple awards since his reassignment. See Reply [Dkt. #44], Ex. 38,
Brown Declaration. Finally, the impact of state income taxes has never been recognized as adverse
and will not be so recognized here, especially as Mr. Sykes agreed upon hire that he could be
reassigned anywhere throughout his career.
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B. There Is No Evidence of Pretext
The Court must look to whether a reasonable jury could conclude from the evidence
that the Service’s justification for Mr. Sykes’s reassignment was disingenuous and that his race was
the true motivator. To prove pretext, a plaintiff must articulate specific and “significantly probative”
evidence that a defendant’s provided reasons were false. See Sharpe v. Bair, 580 F. Sup. 2d 123
(D.D.C. 2008); see also Burke v. Gould, 286 F.3d 513, 520 (D.C. Cir. 2002) (finding that summary
judgment may be granted if a plaintiff’s evidence of pretext is “merely colorable” or “not
significantly probative”). Based on the record, Mr. Sykes has failed to do so. Assuming arguendo
that Mr. Sykes established that his reassignment constituted an adverse employment action, he failed
to proffer sufficient evidence for a reasonable jury to conclude that the Service’s justification for his
reassignment was a pretext.
1. The “Lie”
Although the parties differ in their characterization of the incidents that peppered Mr.
Sykes’s tenure as the SAIC of the Johnson Protective Division, Mr. Sykes does not argue that none
of these performance issues occurred. The Defendant established that Mr. Sykes was reassigned
following the April 2005 fact-finding, which then-AD Sullivan initiated due to the repeated incidents
occurring at the Johnson Protective Division. AD Sullivan reassigned Mr. Sykes based on his belief
that Mr. Sykes was ineffectively managing the JPD due to the combined results of the 2004 routine
office inspection, the special investigation into the sexual harassment incident, and the 2005 fact-
finding. Def.’s Mot., Ex. 5, Sullivan Dep. 108-111. Yet, Mr. Sykes argues that “Mr. Sullivan lied
when he said that the decision to reassign Mr. Sykes was based on the April 26-27, 2005 fact-finding
conducted by Mr. Grupski and Mr. Buster.” Opp’n 39. In fact, he argues, “the process of
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reassigning Mr. Sykes was underway long before the fact-finding began.” Opp’n 39. He bases this
argument on his Exhibits 23 and 24.
Plaintiff’s Exhibit 23 is a Request for Personnel Action Form (SF-52) reflecting Mr.
Sykes’s reassignment from SAIC of the JPD to ASAIC at the Training Center. Opp’n, Ex. 23. It
was signed on March 22, 2005, by the SAIC of the Training Center, and approved on March 24,
2005, one month before the 2005 fact-finding began at the Johnson Protective Division. Id.Plaintiff’s Exhibit 24 appears to show that the Advisory Board recommended Mr. Sykes to fill the
ASAIC position at the Training Center on “5/4/13,” which is logically interpreted as April 13, 2005.
Opp’n, Ex. 24. AD Sullivan and Mr. Prewitt were both members of the Advisory Board and would
have been involved in the recommendation reflected in Exhibit 24. Opp’n, Excerpts of Sullivan
Deposition 181-84.13 In other words, Mr. Sykes argues that the decision to reassign him to the
Training Center was finalized by Messrs. Sullivan and Prewitt by April 13, 2005, at the latest. Mr.
Sykes attempts to use this analysis to show that any decision to reassign him based upon the April
26-27, 2005 fact-finding was a mere pretext for race-based discrimination.
Upon closer inspection of Exhibit 23, however, it becomes clear that “[t]he version
of the SF-52 that Plaintiff submitted as an exhibit omits a key word from the document — that the
action requested by the SF-52 was for a ‘Bid,’ and does not represent the date on which Plaintiff was
reassigned or his reassignment was initiated.” Reply [Dkt. #44] 24; Id. Ex. 35, Walker Declaration
(“Walker Decl.”) ¶¶ 3-4, 33, 37. In the Secret Service, when an office wants to open a vacancy
announcement for bidding by agents, it submits a “Bid SF-52" that identifies the position, its grade
level, where it is located, and its position number. Walker Decl. ¶¶ 3-4. Therefore, the March 22,
13
Found at Dkt. #37-5
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2005 and March 24, 2005 signatures on the SF-52 merely reflect the dates that the SAIC and the AD
requested that the ASAIC position at the Training Center be open for bid. Id. ¶¶ 4, 21. Once an
individual is selected, the Bid SF-52 is completed by handwriting in the selectee’s relevant
information, as well as the type of action and the effective date. Id. ¶ 18. It is clear when comparing
Mr. Sykes’s Exhibit 23 to the Walker Declaration, that the word “Bid” was omitted from the SF-52
relied upon by Mr. Sykes.
Similarly, the allegation that Mr. Sykes’s name was added to the bid list on April 13,
2005 — before the fact-finding began — is unsupported. The “run date” of April 13, 2005 on Mr.
Sykes’s Exhibit 24 is the date the report containing all the bids was run, i.e., printed, not the date that
the Advisory Board meeting was held and it was decided that Mr. Sykes should be reassigned.
Walker Decl. ¶¶ 28-31. The document shows that Mr. Sykes was not a bidder on the ASAIC
position at the Training Center. After the Advisory Board met on April 28, 2005, Mr. Sykes’s name
was entered in handwriting as the selectee. Mr. Sykes’s declaration that Mr. Sullivan “lied” and that
the decision to reassign him was made before the fact-finding investigation now lacks any foundation
in the record. Mr. Sykes has merely mis-interpreted the dates on the documents to connote some
sinister meaning that evaporates upon examination.
2. The “Sham”
Mr. Sykes contends that the April 2005 fact-finding effort was a sham. He challenges
every aspect of the work done by Messrs. Grupski and Buster because they “failed to ask basic
questions in witness interviews or do fundamental investigatory work,” and, worse yet, they
“influenced the direction of the interviews to suit their agenda, and disregarded information that did
not.” Opp’n 40. For this proposition, he cites the Depositions of Messrs. Grupski and Buster. He
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also cites the Witness Affidavits of Daniel Klish, Mary Bargo, and David Checki, which were given
during the investigation of Mr. Sykes’s EEO charge.
Mr. Klish acknowledges that he does not know if race played any factor in the
reassignment of Mr. Sykes but that he, Mr. Klish, believes the reassignment was unfair. Opp’n, Ex.
17, Klish Aff. 2 (“I cannot say if race was a factor in his reassignment, although I do think that Mr.
Sykes was not treated fairly”). Concerning DAD Grupski’s fact-finding interview, Mr. Klish stated:
I tried to explain to Mr. Grupski that based on my knowledge of two of the
individuals involved in the prank and their angry, bitter feelings; [sic] I
believed that perhaps there was reason to be concerned for the safety of
others on JPD, especially the supervisors, and possibly myself.
When I attempted to articulate my feelings, Mr. Grupski dismissed my
comments and made it clear that he already had made up his mind on the
matter regarding how to handle the prank and the employees associated with
it.
At this point, my comments were futile and the conversation moved on to
other topics.
Id. at 4.
Mr. Klish and two other agents agreed afterwards that DAD Grupski “seemed to be
on a mission and was not interested in their thoughts.” Id. Mr. Klish was not present when the
prank took place but was briefed about it later. Id. Ms. Bargo was the administrative officer at the
Johnson Protective Division. She told DAD Grupski that she “had become nervous and fearful for
my safety” because of the nature of the mock memoranda posted in Mrs. Johnson’s home. Opp’n,
Ex. 16, Bargo Aff. 2. She provides no other admissible evidence concerning DAD Grupski’s
questioning that would support Mr. Sykes’s current argument.
Mr. Checki was a Special Agent on the Johnson Protective Detail. As arguably
relevant, in his Witness Affidavit, he stated:
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I believe that Mr. Grupski’s visit of the JPD detail during the week of April
25th thru 28th, 2005 was to investigate a possible EEO matter concerning a
hostile work environment. [sic] (i.e. poster material and fake
memorandums). During this investigation, I believe Mr. Grupski had a
different agenda due to his one-sided view with JPD personnel and me. In
my opinion, Mr. Grupski seemed to be influencing the direction of the
interview from a hostile work environment towards inadequate supervision
of the JPD Detail.
Opp’n, Ex. 15, Checki Aff. 2.14
None of these affidavits carries the point. Mr. Klish was not present when the
incident occurred and could not provide any information to DAD Grupski except his own suspicions.
Ms. Bargo provides no information that is useful to Mr. Sykes’s argument. Mr. Checki suggests that
DAD Grupski thought that inadequate supervision was the issue, not a hostile work environment.
DAD Grupski might have so thought given the incidents involving sexual harassment — a male
agent exposed himself twice to a female agent and she felt unable to report it to the SAIC on this
small detail — and the fake memoranda and gun range poster. Moreover, the subjective impressions
employees might express as to the thinking and reasoning of a supervisor do not constitute evidence.
Mr. Sykes also argues that since the team failed to investigate thoroughly his claims
that SA McKenna was exhibiting serious behavioral problems, which he claims was the purpose for
the investigation. See Opp’n 41. Even if the investigation were less than thorough on the question
of SA McKenna and the fact-finding instead focused mostly on Mr. Sykes’s leadership of the JPD,
this only reveals that Mr. Sykes misconstrued the purpose of the fact-finding in the first place. See
2005 Fact Finding 4 (noting that AD Sullivan initiated the fact finding upon learning of the
discrepancy between Mr. Sykes’s claim that SA McKenna authored the fake memoranda and SA
14
Mr. Checki also stated: “I believe that Mr. Grupski presented a general manner of dislike
for Mr. Sykes.” Checki Aff. 2.
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Moore’s email stating that he had written five of the memoranda); id. at 1 (noting that “in response
to the aforementioned draft memorandums, ADPO Mark Sullivan initiated a fact finding inquiry
regarding the issues detailed in the JPD office inspection and special investigation [involving the
sexual harassment incidents], and the contents of the draft memorandums of SAIC Sykes regarding
JPD personnel”).
This Court may not agree with DAD Grupski’s treatment of Mr. Sykes or the
Advisory Board’s ultimate decision to reassign Mr. Sykes, but this issue is not up for the Court to
consider. Title VII does not punish employers for poor decisions, unless those decisions were
motivated by race. Brown, 199 F.3d at 458-59 (finding that “[a]s courts are not free to second-guess
an employer's business judgment, a plaintiff's mere speculations are insufficient to create a genuine
issue of fact regarding [an employer's] articulated reasons for [its decisions] and avoid summary
judgment”) (internal quotations omitted); see also Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006) (“We have consistently declined to serve as a ‘super-personnel department that reexamines
an entity's business decisions.’”) (citation omitted). The issue at hand is whether Mr. Sykes has
demonstrated that the Service’s justification for his reassignment was a mere pretext for racial
discrimination, which he has not.
Beyond failing to show that the Service’s stated justification for Mr. Sykes’s
reassignment was false, Mr. Sykes also fails to demonstrate that race played any role in his
reassignment. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517-19 (1993) (stating that it is not
true “that all the plaintiff need do is disprove the employer's asserted reason . . . [i]t is not enough,
in other words, to disbelieve the employer; the factfinder must believe the plaintiff's explanation of
intentional discrimination”). Mr. Sykes first points to a forwarded email from DAD Grupski
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containing an “ugly, racially derogatory ‘joke’ made at the expense of African Americans.” Opp’n
9; Opp’n, Ex. 32, Grupski Email. While insensitive at a minimum, Mr. Sykes fails to demonstrate
any nexus between the email and his own reassignment. See, e.g., Simms v. U.S. GPO, 87 F. Supp.
2d 7, 9 n.2 (D.D.C. 2000) (noting that racist “‘stray remarks,’ even those made by a supervisor, are
insufficient to create a triable issue of discrimination where, as here, they are unrelated to an
employment decision involving the plaintiff”); Prater v. FedEx Corporate Servs., Civ. No. 07-22,
2009 U.S. Dist. LEXIS 51146, at *23-24 (D.D.C. June 18, 2009) (finding no inference of
discrimination where no nexus existed between a “remark made in a joking manner” and several
general comments about African Americans and the plaintiff’s termination). More importantly,
DAD Grupski was not the decision-maker when it came to Mr. Sykes’s reassignment. That a
supervisor once forwarded a racially-derogatory email does not, in itself, demonstrate that the actual
reason for Mr. Sykes’s reassignment was racial animus.
Mr. Sykes also attempts to show that the Service has engaged in a pattern of treating
African Americans differently than non-African Americans. For this proposition, he argues that the
three Special Agents who were involved in the misconduct involving the fake memoranda at the
JPD, DAD Grupski, SAIC Donald White, and a former SAIC at the Training Center, who were all
involved in misconduct, were treated more leniently by the Service. Opp’n 27-28, 44-45. These
men are all Caucasian. Even assuming that six people is a sufficient sample size to demonstrate a
pattern, Mr. Sykes fails to demonstrates that he is similarly situated to the three Special Agents who
were under his command at the JPD. Mr. Sykes has neither shown that “all of the relevant aspects
of [his] employment situation were ‘nearly identical’” to those of the Special Agents nor that they
were expected to exercise management of the detail. Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
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1999); see also Barbour v. Browner, 181 F.3d 1342, 1345 (D.C. Cir. 1999) (finding that two EPA
employees with similar job descriptions, one a GS-12 and the other a GS-13, but slightly different
duties were not similarly situated). As Mr. Sykes was the SAIC of the JPD and the superior of the
three Special Agents involved in creating the fake memoranda and the gun target poster — and
therefore potentially faced with higher expectations from Service leadership — their treatment by
the Service following their misconduct is simply not comparable to the Service’s treatment of Mr.
Sykes.
Although DAD Grupski, SAIC Donald White, and a former SAIC at the Training
Center were employees of the same or higher rank than Mr. Sykes, he still fails to show that their
charges or alleged misconduct were comparable. Holbrook, 196 F.3d at 261. Mr. Sykes was
reassigned due to perceived managerial difficulties, not misconduct. This last point aside, that DAD
Grupski, SAIC White, and the former SAIC at the Training Center were all allowed to keep their
same titles, although two of them were reassigned, is not sufficiently probative of racial animus in
the reassignment of Mr. Sykes. The Court is cognizant that “[o]utright admissions of impermissible
racial motivation are infrequent and plaintiffs often must rely upon other evidence,” Hunt v.
Cromartie, 526 U.S. 541, 553 (U.S. 1999), yet Mr. Sykes has failed to provide evidence which
would allow a reasonable jury to conclude that race was at the heart of the Service’s decision to
reassign him.
IV. CONCLUSION
While it is clear that Mr. Sykes has had a distinguished career with the Secret Service,
he is unable to survive the Defendant’s motion for summary judgment. Mr. Sykes has not
demonstrated that his reassignment was an adverse employment action. More importantly,
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Defendant has proffered the legitimate, non-discriminatory reason of Mr. Sykes’s poor managerial
skills — as well as an evidentiary basis for this claim — as the basis for his reassignment. Mr. Sykes
offers no more than speculation and inadequate comparisons in his attempt to demonstrate pretext.
Summary judgment will be granted to the Defendant. A memorializing Order accompanies this
Memorandum Opinion.
Date: May 11, 2010 /s/
ROSEMARY M. COLLYER
United States District Judge
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