Leach v. Mnuchin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LESTER A. LEACH,
Plaintiff,
Civil Action No. 18-3075 (JEB)
v.
JANET YELLEN, Secretary, United States
Department of the Treasury,
Defendant.
MEMORANDUM OPINION
Plaintiff Lester Leach is a Black employee of the United States Mint, a bureau of the
Department of the Treasury, who has been the target of a series of workplace complaints. After
one of his direct reports alleged that Leach had subjected him to a pattern of verbally abusive
behavior, Plaintiff was investigated by the Office of the Inspector General and ultimately given a
two-day suspension without pay; he was also passed over for a more senior Mint job. Seeking to
turn the tables and claim that he is the one being victimized here, Leach then brought this suit
against Treasury, alleging discrimination and retaliation under Title VII. Defendant now moves
for summary judgment. As no jury could find that Plaintiff was treated improperly, the Court
will grant the Motion.
I. Background
A. Factual Background
Prior-Conduct Issues
Leach is a Black man who worked in the Protection Directorate of the Mint as Division
Director for Security. See ECF No. 48 (Defendant’s Statement of Undisputed Material Facts),
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¶¶ 1–3; ECF No. 48-3 (Declaration of Dennis O’Connor), ¶ 3. In that role, he was responsible
for protecting the Mint’s monetary and bullion assets and for ensuring that its workforce was
appropriately vetted. See SUMF, ¶ 3; O’Connor Decl., ¶ 3. His position was considered one of
particular sensitivity within the Mint. See O’Connor Decl., ¶¶ 2–3. Leach’s immediate
supervisor was Bill Bailey, who is also Black; and his second-level supervisor was Dennis
O’Connor, who is white. See SUMF, ¶ 4; ECF No. 48-4 (Declaration of Bill Bailey), ¶ 1;
O’Connor Decl., ¶¶ 1, 3.
In the years prior to this case, Leach was the subject of numerous complaints from
subordinates and others at the Mint. See SUMF, ¶ 7; Bailey Decl., ¶ 3 (“Over the course of the
years of my supervision of Mr. Leach I have personally observed, or other employees have
reported directly to me, concerns regarding . . . insubordinate, confrontational, demeaning,
condescending, berating, and verbally abusive behavior.”); id., ¶¶ 4–12; O’Connor Decl., ¶ 4
(“Over the years (dating as far back as when I started as Chief) I had learned of work related
issues with Mr. Leach . . . . I was aware of approximately six other incidents (and possibly
more) where Mr. Leach’s subordinates had made complaints about him.”). The first complaint
came in 2007 or 2008, when a Mint employee requested and accepted a demotion in order to
work outside Leach’s supervision. See SUMF, ¶ 8; Bailey Decl., ¶ 4. Then in 2008, an
employee filed an EEO complaint against Leach based on alleged mistreatment, which
ultimately settled. See SUMF, ¶ 9; Bailey Decl., ¶ 5. In 2010, a supervisee alleged that Leach
was “arrogant, berating, and unprofessional,” Bailey Decl., ¶ 6, leading to a management inquiry
and ultimately to informal counseling. See SUMF, ¶¶ 10–13; Bailey Decl., ¶¶ 6–7. With the list
of Leach’s “confrontational and insubordinate behavior” growing, Bailey in 2013 authored a
two-page memorandum for Leach’s file. See Bailey Decl., Exh. 1 (Memorandum dated Feb. 13,
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2013). That document surveyed examples of Leach’s unacceptable behavior and warned that “if
[Leach’s] behavior does not improve[,] [Bailey] will take the appropriate actions going forward”
because Bailey was “spending a large amount of time dealing with” Leach-related headaches.
Id.
But the hits kept coming. In 2014, Bailey issued Plaintiff an oral counseling after a
Department of Treasury investigation concluded that Leach had discriminated against one of his
subordinates. See SUMF, ¶ 15; Bailey Decl., ¶ 10; ECF No. 49-1 (Leach Deposition) at 51–56.
The next year, another of Leach’s supervisees asked that Bailey mediate a communication issue
between him and Leach. See SUMF, ¶ 16; Bailey Decl., ¶ 11. In 2016, an IT employee
complained about a “verbal altercation” with Leach that left her unwilling to continue a project
with him. See SUMF, ¶ 17; Bailey Decl., ¶ 12. Finally, before sending the email that
precipitated this case, Arnaldo Medina complained verbally to Bailey about Leach’s “abusive
conduct.” Bailey Decl., ¶ 14; SUMF, ¶ 19; ECF No. 71-2 (Bailey Deposition) at 29–31; ECF
No. 48-10 (Medina Deposition) at 83–84.
Leach disputes the merits of these underlying complaints. He contends that other
employees were themselves to blame, misinterpreted his remarks, sought voluntary
reassignments, and the like. See ECF No. 60-2 (Plaintiff’s Response to Def. SUMF), ¶¶ 7–19.
Plaintiff also identifies positive performance reviews he received during the time, id., ¶ 14, and
suggests that those reviews mean that his supervisors did not believe the complaints against him.
Id., ¶ 10. But Leach does not dispute the existence of these complaints (regardless of their
merits), nor that notwithstanding any performance reviews, Bailey at various points required that
Leach take remedial personnel training, placed a memorandum in his file, and issued him oral
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counseling. See Pl. SUMF Resp., ¶¶ 12 (training), 14 (memorandum), 15 (oral counseling); see
also ECF No. 71-1 (Def. Resp. to Pl. SUMF) at 21.
One other point of background bears mention. In August 2016, Leach filed an unrelated
EEO complaint alleging that other Mint officials, including Acting Deputy Director David Motl,
had denied him funding to attend a training because of his race. See ECF No. 48-2 (Declaration
of Ralph Conte), Exh. 5. Both of Leach’s managers here (Bailey and O’Connor) supported
funding that training, and Leach’s EEO complaint did not name them. See SUMF, ¶¶ 28–30.
That complaint is relevant only to the extent that Leach contends that Motl still harbored
retaliatory animus against him for it.
Allegation and Investigation
On December 21, 2016, against that checkered history, Leach’s subordinate Arnaldo
Medina sent an email to Bailey and O’Connor describing “abuse behavior” by Leach. See
Bailey Decl., Exh. 3 (Medina Email); SUMF, ¶ 5. In that email, Medina complained of
“constant condescending and verbally abusive” treatment from Leach over a period spanning a
year and a half, alleging that he has “never felt so degraded in [his] life.” Medina Email; see
SUMF, ¶ 6. Medina asked that Bailey and O’Connor remove him from Plaintiff’s supervision
and give him 60–90 days to find employment elsewhere. See Medina Email; SUMF, ¶ 6.
(Leach recognizes that Medina sent that email to his supervisors but argues that the allegations it
contained “are baseless and untrue.” Pl. SUMF Response, ¶ 6.)
That email understandably set off alarm bells with Leach’s supervisors. Shortly after
receiving it, Bailey recommended to O’Connor that the Mint conduct an administrative
investigation into the email’s allegations. O’Connor agreed. See SUMF, ¶¶ 23–24; Bailey
Decl., ¶ 15; O’Connor Decl., ¶ 5. On January 9, 2017, Bailey informed Plaintiff that the Mint
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would be investigating his conduct and removing him from supervisory responsibilities pending
the outcome of that investigation. See SUMF, ¶¶ 25–26; Bailey Decl., ¶ 16.
Over the subsequent week, O’Connor began to consider whether a more formal
investigation by Treasury’s Office of the Inspector General would be appropriate. See O’Connor
Decl., ¶ 8; SUMF, ¶ 31. An OIG investigation is very similar to an administrative investigation;
the main differences are that OIG uses law-enforcement officers to conduct investigations,
interviews witnesses under oath, and may refer conduct to the relevant U.S. Attorney’s office.
See O’Connor Decl., ¶ 6. O’Connor ultimately concluded that an OIG investigation was
warranted. He did so based on “the seriousness of the allegations, Mr. Leach’s senior level,
supervisory, and sensitive position within the Protection Directorate, as well as [O’Connor’s]
general knowledge of the past complaints against Mr. Leach.” O’Connor Decl., ¶ 8; SUMF,
¶ 31. On January 17, 2017, O’Connor thus referred the Medina email to OIG. See ECF No. 48-
5 (Declaration of Anthony Scott), Exh. 1 (Referral Letter); O’Connor Decl., ¶ 9; SUMF, ¶ 32.
OIG reviewed the referral and decided to accept the matter for investigation, sharing its decision
with O’Connor on January 24, 2017. See O’Connor Decl., Exh. 2 (OIG Investigation Letter);
¶¶ 11–12; SUMF, ¶¶ 35–36.
Two relevant events occurred between when Bailey notified Leach that he would be
investigated (January 9) and when O’Connor referred the matter to OIG (January 17). First, on
January 11, Leach contacted an EEO counselor and alleged that the Mint’s administrative
investigation and interim removal of his supervisory duties were discriminatory and retaliatory.
See SUMF, ¶ 27; Conte Decl., Exh. 4. In their sworn affidavits, O’Connor and Bailey both
testify that they did not know about that EEO complaint at the time that O’Connor referred the
matter to OIG. See SUMF, ¶ 33; O’Connor Decl., ¶ 10; Bailey Decl., ¶ 18. Second, O’Connor
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briefed both Acting Deputy Director Motl and Chief Counsel Jean Gentry, informing the two
that the agency planned to investigate Medina’s allegations. See O’Connor Decl., ¶ 8.
As before, Leach does not directly contest the veracity of these specific facts. He instead
takes a tangential approach, arguing that O’Connor did not independently verify the allegations
before referring the matter to OIG, that O’Connor did not send prior positive performance
reviews to OIG, and that OIG’s decision to investigate was based only on “false and pretextual
allegations.” Pl. SUMF Resp., ¶¶ 35–36; see generally id., ¶¶ 31–37. The Court discusses these
arguments later. For present purposes, it notes only that Leach cites no record evidence to
dispute the basic outline of the facts set forth above.
Suspension, Telework, and Detail
OIG accepted the matter for investigation on January 24, 2017, and issued its final report
on November 17, 2017. See SUMF, ¶¶ 37, 39; Conte Decl., Exh. 6 (OIG Report). As a part of
its investigation, OIG interviewed eight Mint employees, including Leach. See OIG Report at 2.
It also offered Plaintiff the opportunity to submit any documents that he viewed as relevant,
which he did. Id. (noting OIG reviewed “[r]ebuttal documents provided to TOIG by Lester
Leach”); SUMF, ¶ 37.
During his recorded and transcribed OIG interview, Leach made several statements that
suggested that others could view him as intimidating:
 Quite often, I’m the only one in the room who really knows what
I’m talking about, because I have put time in a lot of things that other
people haven’t. So, I think part of that issue is some people may
feel intimidated, but do I go on lording over people? No, I don’t
have to, but I can’t help if other people feel intimidated because I
try to be accomplished, and I’m always trying to gain new skills.
 . . . I can’t help the fact that other people don’t put as much effort
into developing their craft as I do, and their response to that quite
often is going to be, “Well, he thinks he knows more than
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everybody.” In a lot of cases, I do. I’m sorry. In a lot of cases, I’m
going to be the only one in the room that knows what I’m talking
about.
 [My wife] says, “Lester, you can’t help it, but you do know more
than other people, and you got to try to tone it down.” I try, but I
can’t help the fact that other people are going to get intimidated by
it, and that was [my wife’s] assessment . . . My knowledge and
expertise to some people are intimidating.
Conte Decl., Exh. 7 (Leach Interview Transcript); SUMF, ¶ 38.
OIG issued its final, 12-page (plus appendices) report on November 17. The
investigation found “substantiated” the allegation that Leach had “subjected a subordinate
employee to condescending and verbally abusive behavior over several months.” OIG Report at
10; SUMF, ¶ 39; Conte Decl., Exh. 8 (OIG Conclusion Letter). It noted that “multiple” current
and former Mint employees “corroborated Leach’s inappropriate behavior.” OIG Report at 10.
And it listed several regulations and policies that it suggested were relevant to Plaintiff’s
conduct. Id.
Based on the report’s findings, Bailey issued Leach a Notice of Proposed Suspension on
January 31, 2018. See SUMF, ¶ 40; Bailey Decl., ¶ 19; Bailey Decl., Exh. 5 (Notice of Proposed
Suspension). That five-page Notice concluded that Leach had conducted himself in a manner
unbecoming a federal-government manager. See Notice of Proposed Suspension at 1–2. It also
found that Leach had failed to follow instructions, failed to respond to a supervisor’s request, and
failed to timely pay an overdue balance on a government-issued travel credit card. Id. The
Notice accordingly proposed to suspend him without pay for five days, and it noted that under
the Mint’s telework policies any disciplinary action would also end Leach’s ability to telework.
See SUMF, ¶¶ 41–42; Notice of Proposed Suspension at 1, 5.
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On April 11, 2018, O’Connor issued a nine-page Notice of Suspension Decision. See
O’Connor Decl., Exh. 3 (Suspension Decision). That memorandum “carefully reviewed and
considered” Leach’s responses to Bailey’s Notice of Proposed Suspension, but ultimately
sustained the charges. See Suspension Decision at 1, 2–5; SUMF, ¶ 42; O’Connor Decl., ¶ 16.
O’Connor concluded that the consistent statements of five employees under Leach’s supervision,
the similarity of those reports with prior incidents in Leach’s file, and the corroborative effect of
Leach’s tone with the investigator all led him to “agree with the TOIG’s finding that [Leach]
subjected Arnaldo Medina to condescending and verbally abusive behavior.” Suspension
Decision at 2. O’Connor also sustained the charges of failure to follow instructions, failure to
respond to a supervisor’s request, and failure to timely pay his federal card balance. Id. at 3–6.
Balancing “great concern” about these violations with a recognition that Leach is “very capable”
regarding security issues and had received positive performance reviews in the past, O’Connor
determined that his conduct warranted a two-day suspension without pay — down from the
proposed five-day suspension without pay. Id. at 7–8. As a result of that misconduct finding,
Leach’s participation in the Mint’s telework program was also terminated. See SUMF, ¶ 42;
O’Connor Decl., ¶ 16.
Also based on the OIG report, Bailey determined that Leach “could no longer be trusted
with supervisory authority” because of the serious morale problems his behavior had caused.
See Bailey Decl., ¶ 21; SUMF, ¶ 43. Bailey accordingly coordinated with the Mint’s
Information Technology Directorate (ITD) to detail Leach to that office. See SUMF, ¶ 44;
Bailey Decl., ¶ 22. Leach served on that detail from February 2018 through March 2019, and he
then was permanently reassigned to a nonsupervisory position back in the Protection Directorate.
See SUMF, ¶¶ 44–46; Bailey Decl., ¶ 23.
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Here, too, Leach does not identify record evidence that disputes the basic facts. He
rejects Defendant’s conclusions because in his view the OIG report was based on “pretextual
information,” Pl. SUMF Resp., ¶ 40, its conclusions were “engineered,” id., ¶¶ 41, 43, and the
underlying allegations were “untrue.” Id., ¶¶ 42, 43. The Court considers these arguments
below, but notes here only that they do not call into question the underlying narrative facts.
Non-Selection
One final coda. In May 2017, with the OIG investigation ongoing, the division in which
Leach worked received approval from agency leadership to create a new Assistant Deputy Chief
of Police position. See SUMF, ¶ 47; O’Connor Decl., ¶ 17; id., Exh. 4 (ADC Approval). That
position was senior to Leach’s former role. See SUMF, ¶ 47. The Mint posted a vacancy
announcement on August 1 of that year, and Leach applied for the job. See SUMF, ¶¶ 48–49. A
three-member selection panel interviewed him and two other candidates. Id., ¶¶ 49–51. Plaintiff
does not contend that any of the interview panelists harbored discriminatory or retaliatory
animus towards him. Id.
During Leach’s interview, one panelist observed that “Leach did not answer or
insufficiently answered several questions.” ECF No. 48-7 (EEO Declaration of DeAnna Wynn)
at 5; SUMF, ¶ 50. Plaintiff also “seemed to suggest that the position for which he was
interviewing is a position that he currently occupies” and “asked if the interview panel had seen
the vacancy announcement or job description.” Wynn Decl. at 6. Perhaps unsurprisingly, Leach
received the lowest score of the three applicants, and the panel did not refer him to Bailey, the
selecting official, for further consideration. Id. at 8 (comparing Leach’s score of 41 to other
interviewees’ scores of 69 and 74); SUMF, ¶ 52. Bailey ultimately selected Bobby McCoy for
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the position. See SUMF, ¶¶ 53–54; Bailey Decl., ¶ 26. McCoy was a twenty-year veteran and
an experienced Mint official, and he is also Black. See SUMF, ¶¶ 53–54; Bailey Decl., ¶ 26.
Leach asserts that the position was created as pretext to cut him out from department
leadership. See Pl. SUMF Resp., ¶ 47. The Court considers that argument below. For present
purposes, however, it notes that the record reflects these basic facts around the new position and
Leach’s non-selection for it.
B. Procedural History
Plaintiff filed this lawsuit on December 21, 2018. See ECF No. 1 (Compl.). He contends
that the many agency actions described above were each discriminatory and retaliatory in
violation of Title VII. Id., ¶¶ 66–74 (Count I), 80–84 (Count III). He also argues that those
actions created a hostile work environment. Id., ¶¶ 75–79 (Count II), 85–88 (Count IV).
Treasury now moves for summary judgment on all of Leach’s counts.
II. Legal Standard
Summary judgment must be granted 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); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550
U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence or presence of a genuine
10
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.
R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S.
at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington
Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). The Court must “eschew
making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007). The non-moving party’s opposition, however, 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. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-
movant, in other words, is required to provide evidence that would permit a reasonable jury to
find in his favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
Title VII protects federal employees from discrimination because of race and from
retaliation for reporting discrimination. See 42 U.S.C. § 2000e-16(a) (discrimination); id.
§ 2000e-3(a) (retaliation). Although the precise standards differ, an employee seeking to make
out either a discrimination or retaliation claim must establish two elements: (1) he suffered an
adverse action, (2) either because of a protected characteristic or in retaliation for reporting
discrimination. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (discrimination);
id. at 1198 (retaliation). Leach raises both discrimination and retaliation challenges (Counts I
and III), and he also contends that he was subjected to a discriminatory and retaliatory hostile
work environment (Counts II and IV).
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The Court’s analysis proceeds in three parts. First, it determines which of the
smorgasbord of agency activities Leach identifies qualify as an adverse action within the
meaning of Title VII’s discrimination and retaliation provisions. Second, with respect to
qualifying adverse actions, the Court considers whether Leach has produced any evidence that
would allow a reasonable jury to find those actions discriminatory or retaliatory. Finally, the
Court takes up his hostile-work-environment contentions.
A. Adverse Employment Actions
Plaintiff identifies a large assortment of putative adverse actions on which he seeks to
base his claims. See Compl., ¶¶ 82(a)–(h) (discrimination), 72(a)–(h) (retaliation). They are: (1)
the initial administrative investigation into Leach, id., ¶¶ 72(a), 82(a); (2) the removal of his
supervisory duties during the investigation, id., ¶¶ 72(b), 82(b); (3) the referral of the matter to
OIG for its consideration, id., ¶¶ 72(a), 82(a); (4) O’Connor and Bailey’s conduct during that
OIG investigation, id., ¶¶ 72(a), 82(a); (5) the Notice of Proposed Suspension, which
recommended a 5-day suspension without pay, id., ¶¶ 72(f), 82(f); (6) the Suspension Decision,
which suspended Leach for two days without pay and revoked his ability to telework, id.,
¶¶ 72(f)–(h), 82(f)–(h); (7) the decision to detail him to a nonsupervisory role in the Information
Technology Directorate, id., ¶¶ 72(g), 82(g); (8) the creation of a new Assistant Deputy Chief
position, id., ¶¶ 72(c), 82(c); and (9) Leach’s non-selection for that position. Id., ¶¶ 72(e), 82(e).
The Court considers first which of these actions may form the basis for a discrimination claim
and then (because the standards differ) which may underlie a retaliation claim.
Discrimination
Last year, in Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022), the en
banc D.C. Circuit held that Title VII’s adverse-action requirement obligates a plaintiff to show
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only that he was discriminated against with respect to his “terms, conditions, or privileges of
employment.” Id. at 874–75 (quoting 42 U.S.C. § 2000e–2(a)(1)). Chambers thus overruled
Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), which had required that the challenged adverse
action also carry “objectively tangible harm.” Brown, 199 F.3d at 457. Under the “objectively
tangible harm” test, a plaintiff who “suffers no diminution in pay or benefits does not suffer an
actionable injury unless there are some other materially adverse consequences affecting the
terms, conditions, or privileges of her employment or her future employment opportunities.” Id.Brown had accordingly held that denial of a job transfer was not actionable discrimination.
In Chambers, the Circuit did away with that objectively-tangible-harm requirement for
discrimination claims. See 35 F.4th at 874–75. It held that an employer does discriminate in
violation of Title VII when it denies a job transfer because of a protected characteristic. Id. In
so holding, Chambers broadened the range of actions that can form the basis for a discrimination
claim.
Here, Plaintiff argues that all nine of the actions listed above qualify as adverse for Title
VII discrimination purposes. Many of them — including Leach’s removal of duties, suspension,
transfer, and non-selection — clearly do. Id. Others are much closer. In particular, it is not self-
evident (even post-Chambers) that the OIG referral and proposed suspension themselves altered
Leach’s “terms, conditions, or privileges of employment.” Id. at 874 (noting that “not everything
that happens at the workplace affects an employee’s ‘terms, conditions, or privileges of
employment’”); see also Bain v. Off. of Att’y Gen., No. 21-1751, 2022 WL 17904236, at *23
(D.D.C. 2022) (describing interpretation of that phrase as a “novel and important question . . . in
a post-Chambers world”). But because the Court holds below that Plaintiff fails to identify any
evidence that any of these actions were taken because of his race, it believes that the most
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prudent course is to assume without deciding that all of these actions qualify as adverse actions
for discrimination purposes under Chambers.
Retaliation
Title VII’s retaliation standard, however, is a different story. That is because the Circuit
in Chambers limited its holding to discrimination claims and left the existing “materially adverse
action” standard in place for retaliation claims. See 35 F.4th at 876 (explaining this result as
justified by “fundamental differences between the antidiscrimination and antiretaliation
provisions”). “To prove retaliation, the plaintiff generally must establish that he or she suffered
(i) a materially adverse action (ii) because he or she had brought or threatened to bring a
discrimination claim.” Baloch, 550 F.3d at 1198. A “materially adverse action” is one that,
objectively speaking, would have “dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 1198, 1199 n.5 (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67 (2006)). It “[t]ypically . . . involves ‘a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.’” Bridgeforth v. Jewell, 721
F.3d 661, 663 (D.C. Cir. 2013) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)).
It conversely does not reach every “[m]inor . . . employment action[] that an irritable, chip-on-
the-shoulder employee did not like.” Id. (quoting Russell v. Principi, 257 F.3d 815, 818 (D.C.
Cir. 2001)). While the retaliation standard historically “encompass[ed] a broader sweep of
actions” than the discrimination standard did, see Baloch, 550 F.3d at 1198 n.4, the opposite is
thus true after Chambers.
Two types of employment actions bear particular mention in this case. First, the D.C.
Circuit has made clear that proposed suspensions, as opposed to actual suspensions themselves,
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are not materially adverse for retaliation purposes. See Baloch, 550 F.3d at 1199 (holding that
“proposed 2-day and 30-day suspensions” were not materially adverse actions (emphasis
omitted)). Second, courts in our district have held that referrals to inspectors general are
typically not actionable. In Moore v. United States Department of State, 351 F. Supp. 3d 76(D.D.C. 2019), for example, Judge Dabney Friedrich held that a State Department employee
could not rest a Title VII retaliation claim on another employee’s recommendation that the
Office of Inspector General investigate the plaintiff, concluding that “the request for an
investigation by an independent body (as opposed to the disciplinary action that may follow)
does not constitute an actionable adverse employment action . . . .” Id. at 95 (quoting Ware v.
Billington, 344 F. Supp. 2d 63, 76 (D.D.C. 2004)). Ware v. Billington, the case on which Moore
relied, held just the same: that “although the discipline imposed as a result of an investigation
may have a sufficiently adverse effect on plaintiff’s employment to be actionable, the mere
initiation of the investigation does not.” 344 F. Supp. 2d at 76.
The only exception comes where initiation of that OIG investigation itself triggers other
legal consequences. For example, in King v. Holder, 77 F. Supp. 3d 146 (D.D.C. 2015), Judge
Colleen Kollar-Kotelly held that an OIG investigation could qualify as an adverse employment
action where the plaintiff alleged that initiation of that investigation delayed an otherwise
automatic promotion. Id. at 151–52; see also Moore, 351 F. Supp. 3d at 95 (noting plaintiff
“does not allege any disciplinary or other employment action resulting from the investigation”).
Unless a plaintiff alleges that an OIG investigation itself works materially adverse consequences,
then, the mere initiation of (or request for) one cannot qualify as a basis for a Title VII retaliation
claim.
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Here, many of Leach’s alleged actions do count as materially adverse for purposes of
retaliation. It is clear, however, for the reasons just explained, that neither his proposed
suspension nor his referral to OIG counts. No consequences flowed from the investigation itself:
Bailey removed Leach from his supervisory duties on January 9, prior to O’Connor’s referring
the matter to OIG on January 17. See SUMF, ¶¶ 25–26, 35–36. And Plaintiff’s subsequent
suspension resulted from different, later actions — namely, the Notice of Proposed Suspension
and the Suspension Decision. Id., ¶¶ 41–42. Leach thus identifies no basis on which the Court
can view the OIG referral as a materially adverse action capable of sustaining a retaliation claim.
See also Ware, 344 F. Supp. 2d at 76 (“[A]lthough the discipline imposed as a result of an
investigation may have a sufficiently adverse effect on plaintiff’s employment to be actionable,
the mere initiation of the investigation does not.”).
* * *
The Court now considers whether Plaintiff has raised a jury question of discrimination
based on any of the nine actions and of retaliation based on all but his referral to OIG and his
proposed suspension.
B. Discrete Discriminatory or Retaliatory Acts
The Supreme Court established the three-part burden-shifting framework that governs
traditional claims of employment discrimination and retaliation in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination or retaliation. When he “meets this burden,
‘[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory
reason’ for its action. If the employer succeeds, then the plaintiff must ‘be afforded a fair
opportunity to show that [the employer’s] stated reason . . . was in fact pretext’ for unlawful
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discrimination.” Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006) (quoting
McDonnell Douglas, 411 U.S. at 802, 804) (internal citations omitted).
When, however, “an employee has suffered an adverse employment action and an
employer 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. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008) (emphasis omitted). The court’s task in such cases is to “resolve one central question: Has
the employee 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, color, religion, sex, or national origin?”
Id. The “relevant inquiry” is thus whether an employee has “produced sufficient evidence for a
reasonable jury to conclude that the [defendant’s] asserted nondiscriminatory reason for firing
h[im] was not the actual reason, and that instead the [defendant] was intentionally discriminating
. . . .” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016). This
analysis “appl[ies] equally to retaliation claims.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C.
Cir. 2009).
The Court considers the nine alleged actions in turn, grouping them where appropriate.
Administrative Investigation and Interim Removal of Duties
Leach first contends that the decisions to launch an administrative investigation and to
temporarily remove his duties during its pendency were discriminatory and retaliatory. This
argument does not get off the ground because the Mint has offered non-discriminatory reasons
for the decisions and Leach has produced no evidence that would allow a reasonable jury to find
those reasons pretextual.
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Begin with Bailey and O’Connor’s legitimate reasons to investigate Medina’s email and
suspend Leach’s supervisory duties in the interim. That email alleged “constant condescending
and verbally abusive behavior” over a period of eighteen months. See Medina Email. That is an
objectively troubling email for any manager to receive. All the more so because Medina had
complained before about Leach’s treatment and because many employees had previously raised
similar concerns about Plaintiff. See SUMF, ¶¶ 7–19. The referring officials thus had a
legitimate basis for believing that the matter warranted an administrative investigation. See
Brady, 520 F.3d at 496. Similarly, Bailey offered legitimate reasons for removing Leach’s
supervisory duties during the investigation’s pendency. As Bailey described, given the “serious
nature of the allegations,” it made sense to temporarily bar Leach from directly managing others
while the investigation proceeded. See Bailey Decl., ¶¶ 15–16; SUMF, ¶¶ 25–26. That
reasoning is facially legitimate.
Leach identifies no record evidence to suggest that these reasons were pretext for
discrimination or retaliation. Beginning with discrimination, Leach has shown nothing that
indicates racial animus played any role in the decision to investigate him. See ECF No. 71
(Reply) at 1 (highlighting that Leach’s Opposition “focuses principally on his retaliation claims”
because “Leach fails to identify any record evidence, or even to make any coherent allegation, of
race discrimination by Deputy Chief Bill Bailey (who is the same race as Leach), Chief Dennis
O’Connor or any of the other management officials that he identifies”). And regarding
retaliation, Leach had not filed his January 11 EEO complaint at the time that Bailey and
O’Connor decided to investigate him and suspend his duties, a decision they communicated to
him on January 9. See SUMF, ¶¶ 25–26; Bailey Decl., ¶ 16. The only possible basis for
retaliation would be Leach’s 2016 EEO complaint, which named neither Bailey nor O’Connor
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and which concerned a matter on which those two superiors actually took his side. See SUMF,
¶ 30. Leach also does not argue that either Motl or Gentry influenced this initial action on
January 9, 2017, nor is there any evidence to that effect.
His central position regarding these actions is that Bailey “admitted in his deposition that
he did not believe the allegations in Medina’s email.” Pl. SUMF Resp., ¶¶ 20, 23, 24. This,
however, relies on a flagrant mischaracterization of Bailey’s deposition testimony. There, Bailey
testified only that he believed the allegations in Medina’s email were serious, but that he had not
prejudged them or formed an opinion on their veracity before the investigation. See Bailey
Depo. at 123–24; id. at 115–17. Bailey elsewhere specifically emphasized that he felt the
allegations were serious. Id. at 72–74. Distorting one snippet of deposition testimony does not
create a genuine fact dispute.
Summary judgment is thus warranted on the proposed initial administrative investigation
and the interim removal of Leach’s managerial duties.
OIG Referral
Leach next argues that O’Connor’s January 17, 2017, decision to refer him to OIG was
discriminatory and retaliatory. See Referral Letter; O’Connor Decl., ¶ 9; SUMF, ¶ 32. Because
the Court held above that the OIG referral was not a materially adverse action for retaliation
purposes, it will consider only whether it was discriminatory.
The same facially legitimate reasons that justified the initial administrative investigation
also justified referring the matter to OIG. Again, the email’s allegations were serious and
troubling, and it was well within reason for O’Connor to recommend an independent
investigation. O’Connor’s declaration explains that he based his referral decision on “the
seriousness of the allegations, Mr. Leach’s senior level, supervisory, and sensitive position
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within the Protection Directorate, as well as [O’Connor’s] general knowledge of the past
complaints against Mr. Leach.” O’Connor Decl., ¶ 8; see also SUMF, ¶ 31. That explanation is
plainly legitimate.
In response, Plaintiff does not identify a material dispute regarding whether that
explanation was a pretext for race discrimination. His entire argument is that “O’Connor made
[the referral] because of the Plaintiff’s prior EEO complaint,” not because of his race. See Pl.
SUMF Resp., ¶ 31. Leach contends in particular that Motl and Gentry wanted to retaliate against
him because of his prior EEO activity, and that those two officials influenced O’Connor’s
referral to the Inspector General. Id. As explained above, however, retaliation is out. Leach
thus must produce sufficient evidence for a reasonable jury to conclude that discrimination was
the actual reason for his firing. See, e.g, Wheeler, 812 F.3d at 1114. Because he cannot do so,
summary judgment is warranted here as well.
Leach adds that Bailey and O’Connor’s conduct during the OIG investigation constituted
a separate adverse action because they “only gave the investigator negative materials about the
Plaintiff, withholding the incredibly positive record of outstanding performance appraisals the
Plaintiff had achieved in the last decade.” Pl. SUMF Resp., ¶ 34. This factual proposition finds
no support in the record. Bailey responded to questions from the investigator, who sought to
learn more about the allegations against Leach — not to generally assess his performance in the
position. See generally Bailey Depo.; O’Connor Depo.; Reply at 14–15. Indeed, O’Connor
specifically considered Leach’s performance history alongside the OIG report in imposing
discipline. See Suspension Decision at 7. Leach has thus not provided evidence in support of
this claim, much less some that would suggest that any misstatements would have been because
of discrimination or retaliation.
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Suspension and Telework
Leach fares no better on his argument that the proposed five-day suspension was
discriminatory, or that the ultimate two-day suspension (which also revoked his ability to
telework) was discriminatory or retaliatory. As before, the Mint offered legitimate reasons for
all of these actions. Bailey’s five-page Notice of Proposed Suspension analyzed the OIG report
and offered reasoned conclusions for recommending a suspension. See generally Notice of
Proposed Suspension. O’Connor’s nine-page Notice of Suspension Decision in turn “carefully
reviewed and considered” Bailey’s Notice, as well as Leach’s responses to that proposal. See
Suspension Decision at 2. It walked charge by charge through OIG’s findings, the evidence
supporting them, and Leach’s responses to each. See generally Suspension Decision; see also
SUMF, ¶ 42; O’Connor Decl., ¶ 16. It also specifically considered Leach’s prior performance
ratings alongside other exacerbating and mitigating factors. See Suspension Decision at 7.
O’Connor’s memorandum ultimately “agree[d] with the TOIG’s finding that [Leach] subjected
Arnaldo Medina to condescending and verbally abusive behavior,” but decided a two-day
suspension was sufficient. Id. at 2, 7–8. And, as the memorandum explained, under the Mint’s
general telework policy, this misconduct finding automatically revoked Leach’s teleworking
privileges. Id. at 9. Those decisions were supported by facially legitimate reasoning.
Leach has adduced no evidence that these actions were motivated by discriminatory or
retaliatory intent. He asserts only that “the findings of the OIG report were engineered by Bailey
with information that Bailey knew were [sic] not true” because “Bailey withheld anything
positive about the Plaintiff for example his decade long record of outstanding appraisals and
achievements.” Pl. SUMF Resp., ¶¶ 40–43. As discussed above, however, Leach identifies no
evidence that Bailey knowingly provided false information to OIG or “withheld” anything
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relevant from the investigation. And even though Plaintiff’s past performance reviews were not
central to the issues at hand, O’Connor’s decision still specifically considered them in its
analysis. See Suspension Decision at 7. Leach also cannot claim that Motl or Gentry infected
the final investigative report or any decisions that resulted from it, as they “w[ere] in no way
involved in the investigation of [his] alleged misconduct.” Hampton v. Vilsack, 685 F.3d 1096,
1101 (D.C. Cir. 2012). In any event, both Bailey and O’Connor conducted their own
“independent review[s] of the evidence” before issuing their respective Notice of Proposed
Removal and final removal decision. Id. Leach thus has shown no material dispute on this point
either.
ITD Detail and Reassignment
Next is Leach’s challenge to his ITD detail and his subsequent reassignment to a non-
supervisory role. The Mint offered sound justifications for these decisions as well. Based on the
OIG report’s findings, Bailey reasonably determined that Leach “could no longer be trusted with
supervisory authority.” Bailey Decl., ¶ 21. He thus worked with ITD staff to arrange for
Plaintiff to be detailed there. Following that detail, Leach was then transferred back to the
Protection Directorate in a non-supervisory role. See SUMF, ¶¶ 43–46. Again, in light of the
serious allegations against him and his supervisors’ well-explained suspension decision, this all
was facially legitimate. See also Def. Resp. to Pl. SUMF, ¶ 14 (explaining how “the detail was
appropriate in light of the Inspector General findings and further was meant to utilize Plaintiff’s
extensive training in that [information technology] field”).
Leach counters that Bailey “did not put the Plaintiff back in his position because he was
never planning to,” that the OIG investigation “was a pretext for the discrimination the Plaintiff
faced because of his protected EEO activity,” and that his supervisors skewed the OIG report in
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the ways discussed above. See Pl. SUMF Resp., ¶ 43. These conclusory allegations find no
support in the record and do not create a material dispute of fact sufficient to survive summary
judgment.
Assistant Police Chief Creation and Non-Selection
Last up are Leach’s contentions regarding the creation of an Assistant Police Chief role
and his non-selection for that role, arguments that meet the same fate as the rest. To begin,
O’Connor reasonably explained why he wanted to create the role, see ADC Approval at 1; see
also O’Connor Decl., ¶ 17, and the Department authorized it in a six-page memorandum that
documented why the position was “essential to strengthen the necessary oversight of the [Mint’s]
law enforcement and security functions.” ADC Approval at 2; see generally id. at 1–6. The
agency also has a sound explanation for its decision not to hire Leach: the three-member
interview panel, with which Leach has no objection, gave him the lowest score based on their
perception that his answers were incomplete and that he refused to answer some questions. See
Wynn Decl. at 5–6; SUMF, ¶ 50.
Plaintiff offers no evidence that these agency actions were discriminatory or retaliatory.
His only argument regarding the position’s creation is that “Chief O’Connor and Deputy Chief
Bailey worked with higher up officials to create the position and hire who they wanted for it.”
Pl. SUMF Resp., ¶¶ 49, 50, 52, 53. But Leach provides no evidence to allow for any inference
that either O’Connor or Bailey had a discriminatory or retaliatory motive when they sought and
received departmental approval for that position. Regarding his non-selection, Plaintiff does not
challenge the panel’s decision to award him the lowest score; he offers only the conclusory
assertion that answering the panel’s questions would have been “futile.” Id., ¶ 52. With the
agency’s facially legitimate explanation undisturbed by any contrary facts, the Court sees no way
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a jury could find the agency discriminated against Leach in not hiring him to this position. Cf.
Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Short of finding that the
employer’s stated reason was indeed a pretext, however — and here one must beware of using
20/20 hindsight — the court must respect the employer’s unfettered discretion to choose among
qualified candidates.”).
Leach, consequently, has identified no evidence that could support a jury verdict of
retaliation or discrimination, and so the Court will grant Defendant’s Motion with respect to
those counts.
C. Hostile Work Environment
The Court concludes with Leach’s final claim under Title VII, in which he alleges that
the same acts described above also created a hostile work environment. “The bar for
demonstrating a hostile work environment is a high one: A plaintiff must show that his employer
subjected him to discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.” Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 183 (D.D.C. 2016)
(citation omitted and formatting modified); see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
577 (D.C. Cir. 2013). In evaluating a hostile-environment claim, the Court “looks to the totality
of the circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550
F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). By adhering
to these standards, the Court thereby “ensure[s] that [employment-discrimination law] does not
become a general civility code” that involves courts in policing “the ordinary tribulations of the
workplace.” Faragher, 524 U.S. at 788 (citations and internal quotation marks omitted). While a
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plaintiff need not prove a hostile work environment at this stage, he still must produce facts
sufficient to allow a jury to find “extreme” conduct that satisfies the “demanding” standard for
such a claim. Id.Leach has not met the high bar required. At most, he points to “work-related actions by
supervisors” that “courts typically do not find . . . to be sufficient for a hostile work environment
claim.” Munro v. LaHood, 839 F. Supp. 2d 354, 366 (D.D.C. 2012) (citation omitted); see also
Bell v. Gonzales, 398 F. Supp. 2d 78, 92 (D.D.C. 2005) (“Occasional instances of less favorable
treatment involving ordinary daily workplace decisions are not sufficient to establish a hostile
work environment.”). These actions do not rise to the level of conduct that is “sufficiently severe
or pervasive to alter the conditions of [his] employment and create an abusive working
environment.” Harris, 510 U.S. at 21 (citation omitted); see, e.g., Nurriddin v. Bolden, 674 F.
Supp. 2d 64, 94 (D.D.C. 2009) (dismissing hostile-work-environment claim where allegations of
“disparaging remarks, criticisms of [plaintiff’s] work, and other negative comments d[id] not
sufficiently demonstrate a significant level of offensiveness”); id. (“Nor can the removal of
important assignments, lowered performance evaluations, and close scrutiny of assignments by
management be characterized as sufficiently intimidating or offensive in an ordinary workplace
context.”) (citations omitted). Finally, Leach offers only conclusory allegations that these
actions had anything to do with his membership in a protected class or his EEO complaints. The
Court will thus grant Defendant’s Motion with respect to Leach’s remaining counts as well.
* * *
The through-line beneath Leach’s arguments is that there were positive attributes to his
performance and that it was not his fault that others found him to be a difficult colleague. But
the Court lacks authority to “second-guess an employer’s personnel decision absent
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demonstrably discriminatory motive.” Waterhouse v. D.C., 298 F.3d 989, 995 (D.C. Cir. 2002)
(quoting Fischbach, 86 F.3d at 1182). Plaintiff has offered no grounds for a rational juror to
conclude that the reason he was investigated, suspended, and passed over for promotion was
racial discrimination or retaliation, rather than a years-long string of workplace-conduct issues.
Summary judgment is thus the proper end to this tale.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: March 14, 2023
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