UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY HILL,

Plaintiff,

v. No. 18-cv-2518 (DLF) ANTONY J. BLINKEN, Secretary, U.S. Department of State,

Defendant. 1

MEMORANDUM OPINION

Anthony Hill brings this action against the Secretary of the U.S. Department of State

alleging that, when he was employed in the Department’s Mobile Security Deployment team, he

was unlawfully discriminated and retaliated against, in violation of Title VII of the Civil Rights

Act of 1964. He also seeks review of the Foreign Service Grievance Board’s decision to uphold

his one-day suspension. Before the Court are the plaintiff’s Motion for Partial Summary

Judgment, Dkt. 35, and the defendant’s Motion for Summary Judgment, Dkt. 34. For the reasons

that follow, the Court will deny the plaintiff’s motion and grant the defendant’s motion in part and

deny it in part.

1 Pursuant to Rule 25(d), of the Federal Rules of Civil Procedure, Antony Blinken, the Secretary of the U.S. Department of State, has been substituted for Michael Pompeo as the defendant. I. BACKGROUND

A. Factual background

Anthony Hill joined the Department of State’s Mobile Security Deployment team on

August 25, 2013. Def.’s Statement of Undisputed Material Facts ¶ 2, Dkt. 34-2. 2 He eventually

became the team leader of one of the deployment teams, Team 2. Id. ¶ 4; Pl.’s Statement of

Genuine Issues & Response to Def.’s Statement of Undisputed Material Facts ¶ 2, Dkt. 42-1. In

this role, Hill’s supervisory chain consisted of Justin Rowan as his first-line supervisor; Nicholas

Collura as his second-line supervisor; and Kevin Maloy, the Director of the Mobile Security

Deployment, as his third-line supervisor. Def.’s Statement of Facts ¶ 7. Under Hill’s leadership,

Team 2, among other things, deployed to Bangui, Central African Republic from September

through November 2014. Id. ¶ 19.

Around May 2014, Hill’s subordinates on Team 2 included at least three white men—Ben

Horner, Dan Balocki, and Steve Stockl—and one African American man—Steven Whitaker. Id.

¶¶ 10, 12. After learning that Team 2’s “unofficial team logo[]” was a baboon, id. ¶ 8, Hill, who

is African American, explained to his subordinates that he “found the . . . logo to be offensive,” id.

¶ 12. Hill asserts that, even after he expressed his concerns about the logo, he saw team members

using the logo, including while deployed to the Central African Republic. Id. ¶ 20. After returning

from this deployment, on November 5, 2014, Hill emailed Team 2, Rowan, and Collura explaining

that he continued to find the baboon logo “extremely offensive.” Id. ¶ 26. Later that day, Collura

emailed the entire Mobile Security Deployment team banning use of informal logos like the

baboon. Id. ¶ 27.

2 The Court cites the defendant’s Statement of Facts if a fact is undisputed. If a fact is disputed, it will indicate as such.

2 The parties dispute the facts relating to three incidents involving Hill and his subordinates

during Hill’s tenure as team leader. According to Balocki, at a June 2014 training exercise at the

Panthera Training Center, Hill pushed him down the stairs during the exercise and called him an

“asshole.” Id. ¶ 15; Pl.’s Resps. ¶ 15. Jennifer Socha, a female member of Team 3, asserts that at

an August 2014 joint training between Teams 2 and 3, Hill “inappropriately made a comment

about her weight and grabbed her belly.” Def.’s Statement of Facts ¶ 17; Pl.’s Resps. ¶ 17. All

agree that on October 10, 2014, while Team 2 was deployed to Bangui, Hill “got into a loud

argument” with Whitaker and Stockl. Def.’s Statement of Facts ¶ 24. The Secretary asserts that,

during this argument, Hill stated “something along the lines of ‘let’s go out back’ or ‘I’ll take you

out back.’” Id. Hill, for his part, admits to stating “let’s go out back,” but he contends that he

made that statement because he saw the “top official at the Embassy” nearby and wanted to take

the argument out of the official’s view. Pl.’s Resps. ¶ 24.

During Hill’s time as team leader, some of the members of Team 2, including Stockl and

Balocki, as well as newer, white members, Palmer Jones and Thomas Verhagen, expressed

concerns about Hill’s leadership. Def.’s Statement of Facts ¶ 25. For example, on October 1,

2014, Stockl emailed Rowan asking to be transferred from Team 2 following their deployment.

Id. ¶ 22. On October 28, Jones also emailed Rowan, copying Stockl, Balocki, and Verhagen—but

not Whitaker—to request a meeting to discuss “ongoing team issues.” Id. ¶ 25. These four team

members eventually met with another individual of Rowan’s rank, David Jordan, on November

10, and explained that they did not “want to work for Hill anymore.” Id. ¶¶ 25, 28. Around the

same time, Rowan, Collura, and Maloy also learned of Socha’s allegations against Hill. Id. ¶ 29.

On December 12, 2014, Rowan instructed Hill to not attend a Team 2 training due to

“pending issues with respect to your conduct as a first-line supervisor.” Id. ¶ 32. The same day,

3 Rowan also wrote to Maloy and Collura to recommend that Hill be removed as team leader of

Team 2. Pl.’s Resps. ¶ 35. In December 2014, Hill was removed from his position as team leader

and would not return. Def.’s Statement of Facts ¶¶ 35, 39–40, 42. He was initially reassigned to

another division, id. ¶ 39, and was also offered a Unit Chief position within the Mobile Training

Team that he declined, id. ¶ 40. On February 10, 2015, Hill received a letter of admonishment

regarding the June 2014 stairwell incident and the October 2014 altercation. Id. ¶ 41.

On December 19, 2014, Rowan asked the Office of Special Investigations to initiate an

investigation into the complaints Hill’s subordinates made against him. Id. ¶ 36. Elizabeth

Marmesh, who was familiar with some of the witnesses and complaining parties, including Socha,

was assigned to lead the investigation. Id. ¶ 37. She concluded in her March 3, 2015 investigation

report that “the allegations of workplace violence” by Hill were “substantiated.” Id. ¶ 44.

On October 5, 2015, Hill received “a proposal to suspend him for one[]day” based on his

treatment of Socha during the August 2014 joint training. Id. ¶ 48. The one-day suspension was

based on three allegations: that Hill “(1) grabbed Ms. Socha’s stomach, (2) made a comment

regarding Ms. Socha’s belly fat, and (3) made a comment regarding rubbing sunscreen on Ms.

Socha.” Id. ¶ 49. Though Hill admitted to calling Socha fat, he disputed the other allegations. Id.

Hill’s suspension was sustained by the Deputy Assistant Secretary, id.; as a result, Hill’s “name

was removed from the rank-order list and he was ultimately not promoted during [the 2015]

promotion cycle,” id. ¶ 50. Hill’s grievances from the suspension were also denied by the Deputy

Assistant Secretary for Human Resources, id. ¶ 51, and the Foreign Service Grievance Board, id.

¶ 52. The Board concluded that two of the three allegations—grabbing Socha’s stomach and

making a comment regarding her weight—were established by a preponderance of the evidence,

4 but the alleged comment regarding sunscreen was not. Id. The Board also denied Hill’s request

for reconsideration. Id. ¶ 53.

B. Procedural history

On October 30, 2018, Hill filed a complaint in this Court challenging the Board’s denial of

his grievance as arbitrary and capricious under the Administrative Procedure Act. Compl. ¶¶ 83–

100, Dkt. 1. He also alleged Title VII claims—that he had been discriminated against on the basis

of race and retaliated against for opposing Team 2’s use of a baboon symbol. Id. ¶¶ 101–129. The

Court granted in part and denied in part the Secretary’s motion to dismiss the complaint. Hill v.

Pompeo, No. 18-cv-2518,

(D.D.C. May 31, 2020). Now before the Court are

Hill’s motion for partial summary judgment on his APA claim, Dkt. 35, and the Secretary’s motion

for summary judgment, Dkt. 34.

II. LEGAL STANDARD

A. Summary judgment

Under Rule 56, summary judgment is appropriate if the moving party “shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby Inc.,

, 247–48 (1986).

A “material” fact is one that could affect the outcome of the lawsuit. See Liberty Lobby,

; Holcomb v. Powell,

(D.C. Cir. 2006). A dispute is “genuine” if a

reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See

Liberty Lobby,

; Holcomb,

. In reviewing the record, the court

“must draw all reasonable inferences in favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,

(2000).

5 A party “opposing summary judgment” must “substantiate [its allegations] with evidence”

that “a reasonable jury could credit in support of each essential element of [its] claims.” Grimes

v. District of Columbia,

(D.C. Cir. 2015). The moving party is entitled to summary

judgment if the opposing party “fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett,

(1986).

B. Administrative Procedure Act

In an Administrative Procedure Act case, summary judgment “serves as the mechanism for

deciding, as a matter of law, whether the agency action is supported by the administrative record

and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella,

(D.D.C. 2006). The Court will “hold unlawful and set aside” agency action that is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”

(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right,”

§ 706(2)(C); or “unsupported by substantial evidence,” id. § 706(2)(E).

In an arbitrary and capricious challenge, the core question is whether the agency’s decision

was “the product of reasoned decisionmaking.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins.,

(1983). The court’s review is “fundamentally deferential—

especially with respect to matters relating to an agency’s areas of technical expertise.” Fox v.

Clinton,

(D.C. Cir. 2012) (internal quotation marks and alteration omitted). The

court “is not to substitute its judgment for that of the agency.” State Farm,

.

“Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation

for its action including a rational connection between the facts found and the choice made.”

(internal quotation marks omitted). When reviewing that explanation, the court “must consider

whether the decision was based on a consideration of the relevant factors and whether there has 6 been a clear error of judgment.”

(internal quotation mark omitted). For example, an agency

action is arbitrary and capricious if the agency “entirely failed to consider an important aspect of

the problem, offered an explanation for its decision that runs counter to the evidence before [it], or

[the explanation] is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.”

The party challenging an agency’s action as arbitrary and

capricious bears the burden of proof. Pierce v. SEC,

(D.C. Cir. 2015).

III. ANALYSIS

Hill moves for summary judgment only on his claim that the Foreign Service Grievance

Board’s decision was arbitrary or capricious in violation of the APA. Pl.’s Mem. at 19–20, Dkt.

35-1. The Secretary moves for summary judgment on all of Hill’s remaining administrative, race

discrimination, and retaliation claims. Def.’s Mem. at 12, Dkt. 34-1.

A. Administrative Procedure Act

The Foreign Service Act of 1980 permits any party “aggrieved” by a ruling of the Foreign

Services Grievance Board to “obtain judicial review of a final action of . . . the Board . . . in the

district courts of the United States.”

(a). In such a challenge, the APA applies

“without limitation or exception.”

Hill contends that the Board’s decision violated the APA

because the Board incorrectly found that the Foreign Service Act’s election of remedies provision,

§ 4139(a)(1), barred it from considering certain evidence, and because it failed to consider other

relevant evidence. Pl.’s Mem. at 19–20. Neither challenge succeeds.

1. Election of remedies provision

The Foreign Service Act’s election of remedies provision provides that “[a] grievant may

not file a grievance with the Board if the grievant has formally requested, prior to filing a

grievance, that the matter or matters which are the basis of the grievance be considered or resolved

and relief be provided under another provision of law . . . .”

(a)(1). Based on

7 this provision, the Board declined to consider two “matters” that it viewed as covered by Hill’s

parallel EEOC complaint: (1) any racial bias of the witnesses who corroborated Socha’s version

of events, including Collura, Rowan, Jones, Balocki, and Stockl, Def.’s Ex. 30 (Board Dec.) at 18,

20, Dkt. 34-3; and (2) any “purported inaccuracies” in Memoranda of Interview for the witnesses’

interviews “pertaining to matters for which [Hill] was not disciplined,”

at 20–21 n.12. The

Court need not decide whether the Board’s interpretation of the election of remedies provision was

correct because the Board’s decision not to consider the above matters was not material to its

ultimate conclusions. See PDK Lab’ys, Inc. v. DEA,

(D.C. Cir. 2004) (“If the

agency’s mistake did not affect the outcome, if it did not prejudice the petitioner, it would be

senseless to vacate and remand for reconsideration.”).

As to the racial bias of the corroborating witnesses, the Board explicitly stated that any bias

did not affect its decision; in its ruling on Hill’s motion for reconsideration, it noted that, even if

its legal interpretation was error, its final ruling would remain undisturbed. Def.’s Ex. 31 (Board

Dec. on Reconsideration) at 11–12. The Board wrote: “[E]ven assuming that several of the

witnesses in the case were found to have harbored racial animus against [Hill], such a finding

would not warrant setting aside [its] ruling as to the touching incident.” Id. at 12. Thus, the Court

need not, and cannot, determine de novo whether consideration of such bias would have changed

the Board’s decision, even though evidence of witness bias is generally a “relevant factor” that an

agency cannot ignore, see Pl.’s Mem. at 26–28 (citing Olson v. Powell, No. 02-1371,

*11 (D.D.C. Feb. 3, 2005)). The Board’s conclusion was supported by the

record.

As to the allegations that Hill said Socha was “fat” and inappropriately touched her

stomach, the Board carefully considered “considerable evidence” establishing various witnesses’

8 animus against Hill on non-racial grounds. Board Dec. at 35. This included evidence that Jones,

Stockl, and Balocki “were involved in a concerted effort to have [Hill] removed as their team

leader, or to have themselves removed from his team.”

at 34–35. Taking into account this

evidence, the Board credited factors that weighed in favor of the witnesses’ credibility, such as

Balocki’s “contemporaneous recording of his having seen the touching”; the fact that Stockl and

Balocki were interviewed after Hill had already been removed as team leader, id. at 36; and the

volume of “corroborating evidence, including Socha’s own statements and actions,” id. at 38. A

number of these factors, including “the lack of contradiction of [the witnesses’] . . . statements by

other evidence[] and the absence of ‘inherent improbability’ of [their] version of events,” led the

Board to further conclude any finding of racial bias would “not warrant a conclusion that [the

witnesses’] otherwise corroborated, and thus creditable, statements should be disregarded.” Board

Dec. on Reconsideration at 12. The Board also pointed out that Hill had never alleged “that the

primary complaining witness herself [Socha] was racially biased against him.” Id. The Board’s

discussion of extensive evidence in the record—including evidence regarding the credibility of not

only the allegedly biased witnesses, but also Socha herself—is an adequate explanation for its

conclusion that Hill called Socha “fat” and touched her inappropriately. See Toy v. United States,

(D.D.C. 2002) (“The FSGB . . . weighed the evidence on both sides of the

issue and adequately explained its decision not to find Consul General Warren’s testimony biased.

This court will not disturb such a finding . . . .” (citation omitted)); Olson v. Clinton,

(D.D.C. 2009), aff’d,

(D.C. Cir. 2011).

The Board’s refusal, based on the election of remedies provision, to consider minor and

irrelevant inconsistencies between the witnesses’ statements and the corresponding Memoranda of

Interview was also immaterial to its decision. See Board Dec. at 26–27; Joint Appendix (JA) at

9 670–71, 684–87, Dkt. 48. A court does not review “whether the Board’s decision was perfectly

correct, but whether it was arbitrary.” Clinton,

. None of the alleged

inconsistencies are sufficient to render the Board’s final ruling arbitrary or capricious.

2. Failure to consider other evidence

Despite Hill’s assertions to the contrary, see Pl.’s Mem. at 30–34, the Board adequately

considered “contradictions and inherent improbabilities” in witness testimony,

at 30–32, and

improprieties in the Office of Special Investigations inquiry,

at 32–34.

First, the Board acknowledged that Socha, Stockl, and Balocki used “different words to

describe the actual touching,” Board Dec. at 31, and that they “offered somewhat different

descriptions of the location where the incident took place,” id. at 32. Even so, the Board concluded

that these discrepancies made “no meaningful difference,” as all witnesses agreed that there was

“unwanted physical touching, . . . [which] is the most salient point in terms of whether to sustain

the [allegations].” Id. at 31; see also id. at 32 (“[T]he slight discrepancies identified by grievant

as to location of the incident do not alter the central point, that witnesses corroborate Socha’s

statement that the touching occurred.”). The Board carefully considered the consistency of the

witnesses’ statements throughout the investigation, as well as Team 3 member John Aardapel’s

statement that Titus described the touching incident to him that evening. Id. at 31–33. The Board’s

findings are supported by the record, and the Court will not further “reweigh the conflicting

evidence or otherwise substitute [its] judgment for that of the [Board].” Indiana Municipal Power

Agency v. FERC,

(D.C. Cir. 1995). That the Board did not specifically discuss

the differences between the witnesses’ statements regarding the timing of the Hill’s alleged

touching is not fatal to its decision, see Pl.’s Mem. at 31. The Board reviewed the relevant

statements and explained that any minor inconsistencies did not sufficiently outweigh the

10 witnesses’ consistent testimony that the underlying incident did take place. Because the Board’s

“path may reasonably be discerned” and “minimally contain[s] a rational connection between the

facts found and the choice made,” the Court will not second guess its decision. Frizelle v. Slater,

(D.C. Cir. 1997) (cleaned up).

Second, the Board also carefully considered, in eight pages of reasoned analysis, alleged

improprieties in the investigation and concluded that “preponderant evidence shows the . . .

investigation and its resulting [record] are a valid basis on which the Department could base its

suspension decision.” Board Dec. at 21–28. The Board correctly characterized the relationships

of the investigator, Marmesh, to Balocki, Stockl, Socha, and Jones, compare Board Dec. at 21,

with Pl.’s Mem. at 32 & n.10; JA 513–14, and found that their limited personal interactions did

not constitute the “substantial personal ties outside the workplace” that would require Marmesh to

report a conflict of interest under 12 FAM 221.7-1(a), Board Dec. at 23. That Stockl stated at a

deposition that he “consider[ed] [Marmesh] a friend,” JA 513–14; Pl.’s Mem. at 33, did not provide

grounds to reject the validity of the entire investigation, see Board Dec. at 25 & n.16 (considering

Stockl’s deposition statements regarding his relationship with Marmesh). Finally, as discussed

above, see supra section III.A.1, any minor mischaracterizations of witness statements were not

so probative as to undermine the Board’s finding that Marmesh’s investigation could be credited.

Accordingly, the Court will grant summary judgment in favor of the Secretary on Hill’s

APA claim.

B. Discrimination

As the Court previously held, Hill’s discrimination claim is governed by a theory of “‘cat’s

paw’ liability based on the racial animus of a plaintiff’s co-workers.”

at *8.

Under this theory Hill must establish that: (1) his “co-worker[s] ma[de] statements maligning

[him], for discriminatory reasons and with the intent to cause” an adverse action; (2) “the co- 11 worker[s’] discriminatory acts proximately cause[d]” the adverse action; and (3) “the employer

act[ed] negligently by allowing the co-worker[s’] acts to achieve their desired effect though it

kn[ew] (or reasonably should [have] know[n]) of the discriminatory motivation.” Velazquez-Perez

v. Developers Diversified Realty Corp.,

(1st Cir. 2014); see also Morris v.

McCarthy,

(D.C. Cir. 2016) (applying McDonnell Douglas Corp. v. Green,

(1972), framework to cat’s paw liability elements). Applying this standard, a reasonable

jury could find in favor of Hill on each prong.

1. Discriminatory animus

First, there is record evidence that Hill’s white co-workers, including Stockl, Balocki, and

Jones, made statements against Hill that were both (1) intended to cause his removal as team leader

of Team 2 and (2) motivated by racial animus.

To be sure, the record is ambiguous as to whether Hill’s team members intended to be

transferred off his team or have Hill removed from his position. Compare Pl.’s Ex. 43 at 1, Dkt.

42-3 (Jordan’s documentation of his conversation with white Team 2 members noting that “none

of them want to work for Hill anymore” and that “there was a very good chance that [Hill] will not

continue to be their [team leader]”), with Pl.’s Ex. 35 at 6, (“Following my return from Bangui I

am requesting I be transferred to another team.”); Pl.’s Ex. 33 at 2. But Hill has produced sufficient

evidence to create a genuine dispute, and the D.C. Circuit recently held that a transfer in position

as well as a removal can, in certain circumstances, constitute an adverse action. See Chambers v.

District of Columbia,

(D.C. Cir. 2022); see also Stewart v. Ashcroft,

(D.C. Cir. 2003) (“[W]ithdrawing an employee’s supervisory duties constitutes an

adverse employment action.”); Ohal v. Bd. of Trs. of Univ. of Dist. of Columbia,

(D.C. Cir. 2004) (“[A] material reduction of supervisory responsibilities . . . can amount

12 to an adverse employment action.”).

Further, Hill has put forth sufficient evidence that the team members’ statements were

motivated by discriminatory animus. In May 2014, when Hill first became team leader, he told

the members of his team that he found the baboon logo “offensive” because “monkey and black

people have been associated for years and it has a racial connotation.” Pl.’s Ex. 13 (Hearing

Transcript) at 65. Nonetheless, Hill’s complaining subordinates disregarded his concerns and

ordered more gear with the logo—even though they had never owned any such gear. See Pl.’s Ex.

8 (Balocki Dep.) at 27, 32–33; Pl.’s Ex. 20 (Stockl Dep.) at 77. Hill’s subordinates wore the gear

during work hours and handed it out to local residents while deployed. See Pl.’s Ex. 1 at 61; Pl.’s

Ex. 14 (Hearing Transcript) at 629. They also made jokes about the possible racist associations of

the logo. See Pl.’s Ex. 21 at 1; Pl.’s Ex. 22. The experience of Whitaker, the only other African

American on Team 2, further supports an inference of racial animus. Record evidence shows that

white team members left Whitaker off of emails that expressed concerns about Hill’s leadership.

See Pl.’s Ex. 42; Pl.’s Ex. 43; Pl.’s Ex. 32. They also did not invite Whitaker to a meeting with

Jordan, where they discussed only “tolerat[ing] Whitaker under the right leadership.” Pl.’s Ex. 43

at 1. This constitutes additional evidence on which a reasonable jury could conclude that racial

animus motivated Stockl, Balocki, and Jones to complain about Hill.

2. Proximate cause

It is also possible for a reasonable jury to conclude that team members’ racially motivated

complaints were a proximate cause of Hill’s removal as team leader. According to an email written

by Rowan, Hill’s removal as team leader was predicated primarily on three incidents: (1) Hill’s

altercation with Balocki in the stairwell during a training exercise in June 2014, (2) his “fat”

comment and touching incident with Socha, and (3) his confrontation with Stockl while deployed

in October 2014. Def.’s Ex. 20 at 2, Dkt 34-3. But there is record evidence that supports the 13 inference that the team members’ racially motivated complaints—and not simply these incidents

underlying their complaints—were “directly related” to the decision of Hill’s superiors to remove

him as team leader. Morris,

. As this Circuit has stated, Hill’s superiors’ delayed

response to the complaints, “by itself, could cast doubt on the [Secretary’s] proffered reason.”

DeJesus v. WP Company LLC,

(D.C. Cir. 2016). Despite the fact that Hill’s

superiors knew about the above incidents shortly after they happened, they did not take any action

against Hill until after Jones, Balocki, and Stockl voiced their concerns about Hill. See Pl.’s Ex.

15 (Hearing Testimony) at 1134; Pl.’s Ex. 16 at 1384, 1399. While it is certainly possible that

Hill’s supervisors reacted to these “nonissue[s]” in a delayed fashion because of the developing

“pattern” of allegations relating to Hill’s poor leadership, see Pl.’s Ex. 16 at 1398, 1400 (Maloy

hearing testimony), a reasonable jury could also conclude that the racial animus of Hill’s team

members was a motivating factor in Hill’s removal. See Coats v. DeVos,

(D.D.C. 2017) (“For present purposes, it is sufficient for the Court to conclude that [the

complaining subordinates’] significant involvement in the removal proceedings . . . raises a

substantial issue of fact about whether [the final] decision was insulated from [their] subjective

views.” (cleaned up)).

What is more, at this stage, the Court cannot conclude that any independent investigation

into the allegations against Hill, see Def.’s Mem. at 24, Dkt. 34-1; Def.’s Reply at 9, Dkt. 47, was

a “superseding cause” that “br[oke] the causal chain between [any] bias and an adverse

employment action.” Morris,

. Hill’s superiors made little to no effort to interview

witnesses of the June 2014 and October 2014 incidents, see Pl.’s Ex. 26 (Rowan Dep.) at 55, 61;

Def.’s Ex. 36 (Collura Dep.) at 52, 54, 66; Pl.’s Ex. 4 at 10; Pl.’s Ex. 25 at 4; Pl.’s Ex. 28 (Collura

Dep.) at 57. The Secretary also admits that “MSD management made the decision to temporarily

14 remove [Hill] from Team 2[, on December 12], before the [Office of Special Investigations]

investigation took place.” Def.’s Reply at 8 (emphasis added).

To be sure, there is some question whether Hill’s December 12 removal from Team 2

leadership was only meant to be temporary, see

but too this is a disputed fact. Put another

way, it is disputed whether Hill’s December 12 removal as Team Leader was solely a measure to

separate him from the complaining members until a full investigation could be conducted, or was

also a permanent removal based on those members’ concerns. Emails suggest that Hill was to be

re-assigned to another position immediately and that Team 2 would deploy in January 2015 with

a different team leader. 3 See Def.’s Ex. 18. Further, on December 16—three days prior to the

initiation of any investigation—Rowan and Collura consulted with a Human Resources Officer,

T.J. Shelton, who advised that “removing Mr. Hill from Team 2 presented no issue” and that “a

letter of admonishment [should] be drafted and issued to Mr. Hill.” Def.’s Ex. 20 at 3. Rowan

testified that he had no “visibility on the results of the [eventual] investigation,” including even

when the investigation was completed. Pl.’s Ex. 15 (hearing transcript) at 1106. And most

importantly, Rowan also testified that Hill’s reassignment was not based on the results of the

investigation.

Moreover, regardless whether Hill was permanently reassigned before the investigation

was completed, there is little question that he was at least transferred on December 12, before any

investigation had even begun. After he returned from leave in December 2014, Hill was reassigned

3 For example, on December 10, 2014, well before an investigation of Hill was even initiated, a State employee stated in an email that Rowan had asked him whether he would be available to take over as Team 2 leader. See Pl.’s Ex. 44 at 1. And in a December 12 email, Rowen himself appears to propose to his supervisors that they permanently remove Hill as Team 2’s leader. See Def.’s Ex. 18 (“[I]t is in everyone’s best interest that Anthony no longer remain as [team leader] for Team 2.”).

15 to another position, described as “desk duty” by the Office of Special Investigations. See Pl.’s Ex.

37 at 4; Def.’s Ex. 5 at 57–58. Shortly thereafter, he was offered a job as the Unit Chief of the

Mobile Training Team, which he declined. Def.’s Ex. 35 at 59–61. It is at least disputed whether

either assignment was comparable to the Team 2 leader position, as neither involved the same

supervisory or other responsibilities. See id.; Pl.’s Ex. 10 at 59–60.

In sum, there is some evidence that would enable a reasonable jury to conclude that, on

December 12, 2014, Hill was removed from his team leader position on the basis of his

subordinates’ racially motivated complaints, rather than based on any investigation.

3. Negligence of employer

Finally, a reasonable jury could conclude that the Secretary acted negligently by acting on

the discriminatory complaints of Hill’s co-workers because there is record evidence that Hill’s

superiors either knew or should have known that Jones, Balocki, and Stockl had discriminatory

motives. Most notably, in November 2014, around the same time that Team 2 members informed

Hill’s supervisors of their concerns about Hill’s performance, in an email to Team 2 and his

superiors, Hill expressed his concerns about racism in the team:

When I took over as Team Leader for Team 2 in May 2014 I informed members of Team 2 at the time that I found the symbol for Team 2 ‘The Baboon’ offensive. I offered to everyone to come up with a symbol that would better represent Team 2 and that everyone could get behind[;] to date I have received no recommendations. I was shocked and disappointed to learn that some are still using the Baboon to represent Team 2 after my objections to the image. The U.S. Equal Employment Opportunity Commission [contains a] Race/Color Discrimination & Harassment section[] . . . . As the only African American Team Leader in MSD I find it extremely offensive that my Team is represented by a Baboo[n].

Def.’s Ex. 14 at 2–3. Rowan and Collura were both copied on this email. Although this email was

sent about a month before Hill was removed from his position as team leader, it is sufficient to

have put Hill’s superiors on notice that the complaining Team 2 members might be acting, at least

in part, with racially discriminatory motives when complaining about Hill. 16 As noted, it is also disputed whether Hill’s superiors collected individual witness

statements or conducted any further investigation before removing Hill as team leader. See Mastro

v. Potomac Elec. Power Co.,

(D.C. Cir. 2006). And to the extent that any lack

of investigation was justified because Collura witnessed the October 2014 Bangui incident or

because Hill admitted to parts of the underlying incidents, these also are disputed facts, see Pl.’s

Ex. 14 at 622–24; Def.’s Ex. 45 (Hill Dep.) at 167–68, Dkt. 43-3; Pl.’s Statement of Genuine Issues

at 3–4, 5, Dkt. 42-1, that are best left to a jury to decide.

The Court therefore will deny the Secretary’s motion. There remain genuine disputes of

material fact that preclude the Court from concluding that Hill’s co-workers did not make racially

motivated statements to have Hill removed as team leader; that these statements did not cause

Hill’s removal; or that the Secretary was not negligent in acting on the statements.

C. Retaliation

Courts also assess retaliation claims made under Title VII under the McDonnell Douglas

framework. See Jones v. Bernanke,

(D.C. Cir. 2009). Under that framework,

the employee “must first make out a prima facie case of retaliation.” Iyoha v. Architect of the

Capitol,

(D.C. Cir. 2019). To establish a prima facie case of retaliation under

Title VII, the plaintiff must show that (1) “he engaged in statutorily protected activity”; (2) “he

suffered a materially adverse action by his employer”; and (3) “a causal link connects the two.”

(internal quotation marks omitted). “If the plaintiff clears that hurdle, the burden shifts

to the employer to identify the legitimate, . . . non-retaliatory reason on which it relied in taking

the complained-of action.” Walker v. Johnson,

(D.C. Cir. 2015). If the

employer satisfies that burden, “the central question at summary judgment becomes whether the

employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted

17 . . . reason was not the actual reason and that the employer intentionally . . . retaliated against the

employee.”

(cleaned up).

Hill contends that he engaged in statutorily protected activity when he opposed Team 2’s

use of a baboon as its logo, and that he was retaliated against when he was removed from his

position as team leader because he had “point[ed] to racially offensive symbols and EEOC

[g]uidance.” Pl.’s Opp. at 38–39, Dkt. 42. Even assuming that Hill’s assertions are sufficient to

support a prima facie case of retaliation, the Court will grant summary judgment in favor of the

Secretary on this claim because he has provided a legitimate, non-retaliatory reason for Hill’s

removal, and Hill has produced no evidence that the reason was pretextual.

As explained above, the Secretary has offered a non-retaliatory justification for removing

Hill as team leader: Hill’s superiors were acting on the “existing friction” between Hill and his

subordinates, and the “pattern of behavior” alleged by Team 2 members. Def.’s Mem. at 28–29.

There is considerable evidence in the record that supports this rationale. Rowan testified that he

recommended Hill’s removal because “there was friction and subordinates recording what they

did,” and given that “Team 2 was going up on crisis response status,” it was better “to keep as

much of that team as possible.” Pl.’s Ex. 26 at 109. Emails from Rowan to both Hill and Hill’s

superiors reflect that the removal decision was made based on concerns around Hill’s interactions

with his subordinates. See Def.’s Ex. 11 at 3–4; Def.’s Ex. 20 at 2–3.

Hill has not provided sufficient evidence to permit a reasonable jury to conclude that this

justification was pretext for a retaliatory motive. See Walker, 798 F.3d at 1093–95 (“The evidence

of record must be such that a reasonable jury could not only disbelieve the employer’s reasons, but

conclude that the real reason the employer took a challenged action was [the] prohibited one.”);

Minter v. District of Columbia,

(D.C. Cir. 2015) (“Even if there were some

18 inconsistency in the proffered rationales, Minter would still need to prove that the ‘actual reason’

for her termination was retaliatory.”). To be sure, as discussed above, supra section III.B, under

Hill’s cat’s paw theory of liability, it is conceivable that the Secretary could be liable for racial

discrimination if a jury were to find that Hill’s supervisors were on notice that his subordinates

had complained about him for racially discriminatory reasons and removed Hill from his position

based on his subordinates’ discriminatory complaints, without conducting a thorough investigation

of their accuracy. But Hill has produced no evidence that would support a claim of retaliation,

beyond the mere temporal proximity of his November 5, 2014 email to Team 2 to his December

2014 removal from his position. And, though temporal proximity “can establish a prima facie case

of retaliation, dislodging an employer’s nonretaliatory explanation as pretextual . . . requires

positive evidence beyond mere proximity.” Waggel v. George Washington Univ.,

(D.C. Cir. 2020) (cleaned up).

If anything, the undisputed facts in the record weigh against a finding of retaliatory pretext.

After receiving Hill’s email expressing his views on the baboon logo, Hill’s superiors acted

immediately to address Hill’s concerns. The very same day that Hill emailed Team 2, Collura

emailed Maloy:

I highly recommend we eliminate all external team specific patches, coins[,] or any other non-official items. . . . I would like to send out a [management] notice asap explaining the elimination of all of the team specific memorabilia and the creation of just one specific MSD patch / coin that can be utilized.

Def.’s Ex. 14 at 1. Later that same day, Collura emailed the entire Mobile Security Deployment

team:

It is important for all of us to understand sensitivities that can be construed from team names or symbols. What might have an innocent meaning to some, can be offensive to others. MSD management i[s] committed to a work environment that is free of potentially offensive material or actions. From today forward, it is MSD office policy that all unofficial team symbols, nicknames[,] or paraphernalia are

19 ban[ne]d from MSD office space, vehicles[,] or uniforms. . . . An official written policy will follow shortly[,] and violation will result in disciplinary action.

Def.’s Ex. 15. Hill has thus failed to identify any evidence in the record from which a reasonable

jury could conclude that the Secretary’s reason for removing him as team leader was retaliatory.

The Court will therefore grant summary judgment in favor of the Secretary on Hill’s retaliation

claim.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part the defendant’s motion

for summary judgment, and denies the plaintiff’s motion for partial summary judgment. A

separate order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge March 3, 2023

20