UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LOUIS FITZIG,

Plaintiff,

v. Civil Action No. 18-2552 (RDM) ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security,1

Defendant.

MEMORANDUM OPINION AND ORDER

In this Title VII case, Plaintiff Louis Fitzig, a longtime United States Secret Service

agent, challenges the Secret Service’s failure to promote him on five different occasions in 2017,

alleging that he was not promoted because of his race, color, and prior protected activity. Dkt. 3

(Compl.). Defendant the Secretary of Homeland Security (hereinafter the “Secretary” or the

“Secret Service”) has moved for summary judgment. Dkt. 38. The Secretary contends that the

Secret Service has offered legitimate, nondiscriminatory, and nonretaliatory reasons for

promoting other candidates and that Fitzig has failed to demonstrate that these proffered reasons

are pretextual. Dkt. 38-1. The Court concludes that a reasonable jury could disagree with the

Secret Service as to some of Fitzig’s claims but not as to others, so it will GRANT in part and

DENY in part the Secretary’s motion.

1 Pursuant to Federal Rule of Civil Procedure 25(d), the current Secretary of Homeland Security, Alejandro Mayorkas, “is automatically substituted as a party” with no effect on the plaintiff’s “substantial rights.” Fed. R. Civ. P. 25(d). I. BACKGROUND

For present purposes, the Court sets forth the undisputed evidence and, where the

evidence is disputed, the Court describes the evidence “in the light most favorable to the

nonmoving party.” Talavera v. Shah,

(D.C. Cir. 2011). It bears emphasis,

however, that a party seeking to dispute certain evidence at summary judgment must do so

clearly and must come forward with specific, controverting evidence. It is not enough merely to

assert—much less imply—that evidence is disputed. Here, as required by Local Civil Rule

7(h)(1), the Secret Service has provided a statement of material facts as to which it contends

there is no genuine dispute, Dkt. 38-2 (Def.’s SUMF), and Fitzig has responded, Dkt. 46-1 (Pl.’s

Resp. Def.’s SUMF). But Fitzig neither admits nor clearly disputes many of these facts, instead

offering ambiguous responses. Most notably, when an asserted fact is supported by a citation to

a witness’s testimony, Fitzig often responds that he admits that the witness said what he or she

said. That response does not place the asserted fact in genuine dispute. To create a genuine

dispute of material fact, the nonmoving party must clearly dispute the asserted fact and must

identify specific, controverting evidence. Admitting that a witness, in fact, gave the testimony

cited in support of an asserted material fact does not create a genuine dispute as to the asserted

fact or as to the content of that testimony. See Fed. R. Civ. P. 56(e) (indicating that a court can

“consider [a] fact undisputed for purposes” of a summary judgment motion where “a party fails

to properly support an assertion of fact or fails to properly address another party’s assertion of

fact”).

2 A. Factual Background

1. Fitzig’s Employment with the Secret Service

Fitzig identifies as a mixed-race Black man of multiracial color.2 Dkt. 46-1 at 95 (Pl.’s

SUMF ¶ 17). He began his Secret Service career in 1998, and for his first four-plus years

worked as a special agent in the New York field office.

at 1–2 (Pl.’s Resp. Def.’s SUMF

¶¶ 2–3). This was, in Secret Service parlance, Fitzig’s “Phase I” assignment.

at 1–2 (Pl.’s

Resp. Def.’s SUMF ¶ 3). During his New York tour, Fitzig served in a variety of roles and was

appointed Group Leader of the Bank Fraud Squad and named the Field Office Lead Agent Assist

for several presidential and vice-presidential visits. Dkt. 50-1 at 2–4 (Def.’s Resp. Pl.’s SUMF

¶¶ 3–6).

After his New York stint, Fitzig spent over four years as a special agent in the

Presidential Protection Division (“PPD”) and a further eleven months in the Special Operations

Division. Dkt. 46-1 at 2 (Pl.’s Resp. Def.’s SUMF ¶ 4). Collectively, these assignments

constituted Fitzig’s “Phase II” assignment.

While in the Special Operations Division, Fitzig

served as both the Airspace Program Whip and the Acting Assistant to the Special Agent in

charge. Dkt. 50-1 at 4–5 (Def.’s Resp. Pl.’s SUMF ¶¶ 8–9). Although the parties do not

specifically define the “Whip” role, they note that the Whip “has a significant part” in a

protection detail and “is responsible for those who protect the protectee when the Special Agent

in Charge is not there.” Dkt. 46-1 at 84 (Pl.’s Resp. Def.’s SUMF ¶ 359).

Fitzig began his Phase III assignment in 2008 as a polygrapher in the Forensic Services

Division (“FSD”) of the Office of Investigations in the Washington, D.C. field office. Dkt. 46-1

2 As discussed infra, Fitzig’s racial identity—or the relevant decisionmakers’ perception of his racial identify—is a matter of dispute between the parties.

3 at 2 (Pl.’s Resp. Def.’s SUMF ¶¶ 5–6); Dkt. 3 at 4 (Compl. ¶ 17). In this role, he was

responsible for all aspects of the polygraph examination process, including conducting

examinations, evaluating results, and writing reports. Dkt. 46-1 at 2–3 (Pl.’s Resp. Def.’s SUMF

¶¶ 9–11). In June 2017, he was also made a Senior Special Agent (“SSA”), a designation

reserved for agents on their Phase III assignments who have at least fifteen years of service and

who meet certain performance and competence thresholds. Dkt. 50-1 at 1 (Def.’s Resp. Pl.’s

SUMF ¶ 1). At all times relevant to this lawsuit, Fitzig was a GS-13 level employee seeking a

promotion to the GS-14 level, although he was eventually promoted to a GS-14 position in 2020.

Dkt. 46-1 at 2–3 (Pl.’s Resp. Def.’s SUMF ¶¶ 7, 13).

Fitzig received strong performance reviews for his work in FSD, at least in the years

leading up to the non-promotions in question here. In the eight rating periods before he applied

to the first of the vacancies at issue he was rated “outstanding”—the highest rating available—

across all of the competencies on which he was assessed. Dkt. 50-1 at 18–19 (Def.’s Resp. Pl.’s

SUMF ¶ 25). The last of these reviews, provided in July 2017, also stated that “[i]t is expected

that SSA Fitzig will assume additional leadership responsibilities within the USSS Polygraph

Program in the future.” Id. at 21 (Def.’s Resp. Pl.’s SUMF ¶ 29). In addition to receiving

favorable performance reviews, Fitzig was a repeated recipient of the Century Award, an

accolade given to polygraphers who perform over 100 polygraphs in a given year. Dkt. 39-7 at 3

(Def.’s Ex. 1); Dkt. 39-8 at 10 (Def.’s Ex. 1).

Despite Fitzig’s estimable performance, all was not well between him and his

supervisors. On January 27, 2017, he contacted an equal employment opportunity (“EEO”)

counselor concerning his non-selection for a promotion (not at issue in this case) for which he

had applied. Dkt. 39-1 at 34 (Def.’s Ex. 1). He participated in “pre-complaint counseling” on

4 this matter, although he never filed a formal complaint. Dkt. 46-1 at 3–4 (Pl.’s Resp. Def.’s

SUMF ¶ 14–15, 17, 19). This process was conducted anonymously, meaning that the EEO

counselor interviewed FSD supervisors about Fitzig’s complaint on a no-names basis. Id. at 4

(Pl.’s Resp. Def.’s SUMF ¶ 18). Fitzig was also identified as a possible witness in a colleague’s

employment dispute, although he was never contacted or asked to provide testimony in the

matter. Id. at 5 (Pl.’s Resp. Def.’s SUMF ¶¶ 20–21).

2. FSD and the Promotion Process

Promotions in the Secret Service are governed by what is known as the Merit Promotion

Plan and follow a three-step process. Id. at 15–16 (Pl.’s Resp. Def.’s SUMF ¶¶ 59, 62). The

first step is assessment: candidates fill out a promotion application and, in the case of GS-14

promotions, take the GS-14 agent promotion exam (the “APEX”). Id. at 16 (Pl.’s Resp. Def.’s

SUMF ¶¶ 63, 65). Candidates who receive a qualifying APEX score then complete an

“assessment of career experiences” and obtain an evaluation from a supervisor. Id. at 16–17

(Pl.’s Resp. Def.’s SUMF ¶¶ 67–68). The output of this process is a Merit Promotion Process

(“MPP”) score, a composite of the candidate’s APEX score, career experience assessment, and

evaluation. Id. at 17 (Pl.’s Resp. Def.’s SUMF ¶ 70). The MPP process is used for only

candidates seeking a promotion; candidates seeking reassignment to a position at their current

grade level are not required to obtain an MPP score before applying. Id. at 18 (Pl.’s Resp. Def.’s

SUMF ¶ 76).

At the next stage of the process, candidates who have obtained an MPP score may use it

to bid for open positions. Id. at 18 (Pl.’s Resp. Def.’s SUMF ¶ 75). The most competitive

candidates who bid on a vacancy (usually the top quartile or top thirty candidates, whichever

category is larger) are then referred for consideration to the Advisory Board, a group of senior

5 Secret Service officials. Id. at 18–19 (Pl.’s Resp. Def.’s SUMF ¶ 77–82). These candidates are

ranked by MPP score on what is known as the “best-qualified list”—a higher MPP score

corresponds to a higher position on the best-qualified list. Dkt. 38-2 at 11 (Def.’s SUMF n.2).

The last stage of the process is selection. Each GS-14 vacancy is assigned to a selecting

official in the division in which the vacancy sits. Dkt. 46-1 at 19 (Pl.’s Resp. Def.’s SUMF

¶ 83). The selecting official presents his or her choice of candidate to the Advisory Board for

consideration, and the Board can approve that candidate by a majority vote. Id. at 19 (Pl.’s Resp.

Def.’s SUMF ¶ 83).

During the relevant period, the Office of Investigations selecting official was Assistant

Director of Investigations Kenneth Jenkins. Id. at 20 (Pl.’s Resp. Def.’s SUMF ¶¶ 85–87).

Jenkins relied heavily on recommendations from his subordinates when selecting candidates to

recommend for promotion. Id. at 21 (Pl.’s Resp. Def.’s SUMF ¶¶ 93–94). For vacancies within

FSD, Jenkins had Deputy Assistant Director Michael Breslin solicit names from the highest-

ranking FSD official, Special Agent in Charge Frank Loveridge. Id. at 21–22 (Pl.’s Resp. Def.’s

SUMF ¶¶ 93, 95); Dkt. 39-4 at 26 (Loveridge EEO Decl. ¶ 1); Dkt. 39-4 at 37 (Breslin EEO

Decl. ¶ 1). Loveridge, in turn, relied on recommendations from two of his own subordinates,

Assistant Special Agent in Charge Brian Leary and Assistant to the Special Agent in Charge

Daniel Ciatti. Dkt. 46-1 at 22–23 (Pl.’s Resp. Def.’s SUMF ¶ 99); Dkt. 39-4 at 47 (Leary EEO

Decl. ¶ 1); Dkt. 39-5 at 5 (Ciatti EEO Decl. ¶ 1).

Although Leary and Ciatti spearheaded the selection process for FSD vacancies, they

were not the only officials who supervised FSD polygraph agents. Other FSD supervisors

included Bill Lewis, Assistant Special Agent in Charge and head of the polygraph program until

mid-2017, and Edward Alston, who was promoted to Assistant to the Special Agent in Charge in

6 August 2017. Dkt. 46-1 at 27, 29 (Pl.’s Resp. Def.’s SUMF ¶¶ 111, 115, 117) (undisputed as to

the fact of Lewis’s title and role and as to the timing of Alston’s promotion). Among these

officials, only Lewis and Alston were Black; Jenkins, Breslin, Loveridge, Leary, and Ciatti all

were white. Dkt. 50-1 at 40–41 (Def.’s Resp. Pl.’s SUMF ¶¶ 59–60); Dkt. 39-4 at 37 (Breslin

EEO Decl. ¶ 5); Dkt 39-4 at 6 (Jenkins EEO Decl. ¶ 3); Dkt. 39-4 at 26 (Loveridge EEO Decl.

¶ 5).3

3. Fitzig’s Applications for Promotion

a. Vacancy 17116

Fitzig’s first failure-to-promote claim arises out of Vacancy 17116, which corresponded

to two openings for non-supervisory technical staff assistant positions within FSD. Dkt. 46-1 at

31–32 (Pl.’s Resp. Def.’s SUMF ¶ 127). Technical staff assistants are responsible for a wide

range of duties, including working with senior officials in planning and directing the functions of

the office, reviewing policies and procedures, engaging in long-range planning, and liaising with

senior agency officials. Dkt. 39-6 at 46 (Def.’s Ex. 1). According to Jenkins and Breslin, FSD

was looking for candidates for this role who had excellent polygraph skills, the ability to mentor

junior polygraph examiners, “strength in operations-related tasks,” and leadership potential. Dkt.

39-4 at 39 (Breslin EEO Decl. ¶ 13).

Vacancy 17116 was posted on June 2, 2017, and fifteen special agents applied for the two

openings. Dkt. 46-1 at 31–32, 35 (Pl.’s Resp. Def.’s SUMF ¶¶ 127, 142). Fitzig was third on the

best-qualified list. Dkt. 39-6 at 33 (Def.’s Ex. 1). His statement of qualifications highlighted,

among other things, the fact that he had received three Century Awards, his mentorship of junior

examiners, and his advanced polygraph training. Id. at 36. At the end of June, FSD announced

3 Breslin identifies as “white/Hispanic.” Dkt. 39-4 at 37 (Breslin EEO Decl. ¶ 5).

7 that Special Agents Tracey Hughes and Timothy Kistler had been selected for the vacancies.

Dkt. 46-1 at 35 (Pl.’s Resp. Def.’s SUMF ¶¶ 139, 141). Hughes and Kistler ranked fifth and

tenth, respectively, on the best-qualified list. Dkt. 39-6 at 33 (Def.’s Ex. 1). As was typical in

FSD, Leary and Ciatti had recommended Hughes and Kistler to Loveridge, Loveridge had

recommended them to Breslin, and Breslin had recommended them to Jenkins, who brought

them before the Advisory Board for selection. Dkt. 40-7 at 4 (Leary Decl. ¶ 26); Dkt 40-8 at 5–6

(Ciatti Decl. ¶¶ 35–37); Dkt. 39-4 at 38–39 (Breslin EEO Decl. ¶¶ 6, 8, 12, 13); Dkt. 39-4 at 10–

11 (Jenkins EEO Decl. ¶¶ 23–30).

b. Vacancy 17157

Fitzig’s second claim arises out of his non-selection for Vacancy 17157, an Assistant to

the Special Agent in Charge (“ATSAIC”) role within FSD. Dkt. 46-1 at 49–50 (Pl.’s Resp.

Def.’s SUMF ¶ 202). This was a supervisory position involving close collaboration with

Loveridge, as well as liaising with senior members of the Secret Service and federal, state, and

local law enforcement. Dkt. 39-7 at 10 (Def.’s Ex. 1). According to Breslin, FSD leadership

was looking for candidates with a broad variety of prior assignments, supervisory experience,

subject-matter expertise, and professional maturity. Dkt. 46-1 at 58 (Pl.’s Resp. Def.’s SUMF

¶ 231). The position was posted in August 2017, and eight special agents (all of whom were

promotion candidates) applied for the opening. Id. at 50–51 (Pl.’s Resp. Def.’s SUMF ¶¶ 203,

207). This time, Fitzig ranked second on the best-qualified list, and his application highlighted

his nine years of experience in FSD, the high volume of polygraph exams he had performed, and

his experience with polygraph quality control and mentorship. Id. at 50 (Pl.’s Resp. Def.’s

SUMF ¶ 206); Dkt. 39-7 at 3 (Def.’s Ex. 1). Special Agent Ellen Ripperger, who ranked seventh

on the best-qualified list, was selected for the vacancy on September 13, 2017. Dkt. 46-1 at 50–

8 51, 54 (Pl.’s Resp. Def.’s SUMF ¶¶ 206, 209, 221). Like the process used for the earlier

vacancies, Ripperger’s supervisors had recommended her up the chain of command, from Leary

and Ciatti to Loveridge, Loveridge to Breslin, and Breslin to Jenkins. Dkt. 40-7 at 4 (Leary

Decl. ¶ 32); Dkt 40-8 at 7 (Ciatti Decl. ¶ 40); Dkt. 39-4 at 41 (Breslin EEO Decl. ¶¶ 25–27); Dkt.

30-4 at 11 (Jenkins EEO Decl. ¶¶ 31).

c. Vacancy 17165

Later in August 2017, Fitzig applied for Vacancy 17165, which, like Vacancy 17116,

comprised two non-supervisory technical staff assistant openings within FSD. Dkt. 46-1 at 61

(Pl.’s Resp. Def.’s SUMF ¶ 241). FSD sought to fill these positions with agents who were

skilled polygraph examiners and who were capable of mentoring new examiners. Dkt. 39-4 at

43 (Breslin EEO Decl. ¶ 41). Eleven candidates (all of whom were promotion candidates)

applied for the positions, and among these candidates Fitzig ranked second on the best-qualified

list. Dkt. 39-7 at 15 (Def.’s Ex. 1). As before, his statement of qualifications emphasized his

polygraph experience, strong performance, and ability to mentor. Id. at 17. On September 13,

2017, Special Agents Nicholas Hall and Lonnie Falgout, who ranked fifth and eleventh,

respectively, on the best-qualified list, were selected for the open positions. Dkt. 46-1 at 62

(Pl.’s Resp. Def.’s SUMF ¶ 251). Once again, Hall and Falgout’s candidacies were

recommended up the FSD and Investigations leadership hierarchy. Id. at 65–66, 68–69 (Pl.’s

Resp. Def.’s SUMF ¶¶ 269, 274, 279, 281–83, 287)

d. Vacancy 17209

In November 2017, Fitzig applied for vacancy 17209, an ATSAIC position in the Newark

field office. Dkt. 38-2 at 40 (Def.’s SUMF ¶ 294); Dkt. 46-1 at 72 (Pl.’s Resp. Def.’s SUMF

¶ 294). This was a supervisory position and a generalist role; ATSAICs in the Newark office

9 typically supervise squads of special agents and support personnel across a variety of different

agency functions, including investigations, intelligence, recruitment, and protective efforts. Dkt.

41-12 at 2 (McKevitt Decl. ¶¶ 10–11). Because this position was in the Newark field office, the

selection process ran a slightly different course than did the process used for the FSD vacancies.

Jenkins was still the selecting official, and, as before, he received recommendations from

Breslin. Dkt. 46-1 at 73 (Pl.’s Resp. Def.’s SUMF ¶¶ 299–300). But rather than asking

Loveridge (and thus Leary and Ciatti) for recommendations, Breslin relied on Mark McKevitt,

the Special Agent in Charge of the Newark office; Loveridge, Leary, and Ciatti were not

involved in the selection for this opening. Id. at 73, 78 (Pl.’s Resp. Def.’s SUMF ¶¶ 300, 327–

28). Twenty-six candidates applied for the position, and Special Agent Michael Fagan was

ultimately selected. Id. at 72, 73 (Pl.’s Resp. Def.’s SUMF ¶¶ 297, 303). Fagan placed fifteenth

on the best-qualified list for this vacancy; Fitzig placed fourth. Dkt. 41-10 at 1–2 (Def.’s Ex.

20).

e. Vacancy 17195

The final vacancy at issue is Vacancy 17195, which corresponded to two ATSAIC roles

in the Airspace Security Branch of the Special Operations Division of the Office of Protective

Operations. Dkt. 46-1 at 79 (Pl.’s Resp. Def.’s SUMF ¶ 330). These were not polygrapher

positions and were not part of FSD or the Investigations division more broadly. Id. at 89–90

(Pl.’s Resp. Def.’s SUMF ¶ 381); Dkt. 40-9 at 1 (Buster Decl. ¶ 4). As a result, none of the usual

suspects were involved in the selection. Assistant Director of the Office of Protective Operations

Robert Buster was the selecting official, and he in turn worked closely with Special Agent in

Charge of the Special Operations Division Mark Habersaat in making selections. Dkt. 40-9 at 1

(Buster Decl. ¶ 4); Dkt. 39-5 at 12 (Buster EEO Decl. ¶ 8); Dkt. 41-2 at 2 (Habersaat Decl. ¶¶ 9–

10 10). In evaluating candidates for this vacancy, Buster and Habersaat looked for agents with

strong leadership experience and potential, as evidenced by the candidates’ breadth of

experiences, level of responsibility, accomplishments, mentorship track record, and experience

working with internal and external partners. Dkt. 41-2 at 2 (Habersaat Decl. ¶¶ 14–15); Dkt. 40-

9 at 3 (Buster Decl. ¶ 16); Dkt. 39-5 at 13 (Buster EEO Decl. ¶ 11). In Buster’s view,

differences between the MPP rankings of candidates who scored high enough to be eligible for

the position were not important, and he did not consider those differences. Dkt. 40-9 at 2–3

(Buster Decl. ¶¶ 14–15). Thirty-one candidates made the best-qualified cutoff for this role, and

Special Agents Timothy Desmond and Linda Canfield were selected for the positions. Dkt. 46-1

at 79, 80 (Pl.’s Resp. Def.’s SUMF ¶¶ 335, 340). Fitzig ranked eleventh, Canfield twenty-third,

and Desmond twenty-sixth on the best-qualified list. 46-1 at 80–81 (Pl.’s Resp. Def.’s SUMF

¶¶ 337, 345–46).

B. Procedural History

Fitzig exhausted his administrative remedies throughout 2017 and 2018 and filed this

lawsuit on November 5, 2018. Dkt. 3 at 3 (Compl. ¶¶ 8–13). The Complaint alleges that in

failing to promote Fitzig numerous times between 2010 and 2017, the Secret Service

discriminated against him on the basis of his race, color, national origin, age, and prior protected

activity and subjected him to a hostile work environment, all in violation of Title VII of the Civil

Rights Act of 1964. Dkt. 3 (Compl.). After the Secretary moved to dismiss the case in part,

Fitzig agreed to drop his national origin and age discrimination claims, his hostile work

environment claim, and all claims associated with non-selections prior to 2017. Dkt. 18; Dkt.

19; Min. Order (Feb. 4, 2020). The Secretary has now moved for summary judgment on Fitzig’s

remaining claims. Dkt. 38.

11 II. LEGAL STANDARD

A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it

can “show[ ] that there is no genuine dispute as to any material fact and [that it] is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment

“bears the initial responsibility” of “identifying those portions” of the record that “demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

(1986). A fact is “material” if it could affect the outcome of the litigation under governing law.

See Anderson v. Liberty Lobby, Inc.,

(1986). And a dispute is “genuine” if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott

v. Harris,

(2007). The Court must view the evidence in the light most

favorable to the nonmoving party and must draw all reasonable inferences in that party’s favor.

See Talavera,

.

If the moving party carries this initial burden, the burden then shifts to the nonmoving

party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving

party’s favor with respect to the “element[s] essential to that party’s case, and on which that

party will bear the burden of proof at trial.”

(quoting Holcomb v. Powell,

(D.C. Cir. 2006)). The nonmoving party’s opposition, accordingly, must consist of more than

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(c); Celotex,

. If the nonmoving party’s evidence is “merely

colorable” or “not significantly probative,” the Court should grant summary judgment. Liberty

Lobby, 477 U.S. at 249–50.

12 In conducting this analysis, the Court “review[s] the record . . . as a whole.” Wheeler v.

Georgetown Univ. Hosp.,

(D.C. Cir. 2016). “Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine

issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)

(quoting First Nat. Bank of Ariz. v. Cities Serv. Co.,

(1968)). But at summary

judgment, it is not the Court’s function to “weigh the evidence,” Liberty Lobby,

,

or “to make credibility determinations,” Wheeler,

, in order to determine “the

truth of the matter,” Liberty Lobby,

.

III. ANALYSIS

Fitzig alleges that the Secret Service failed to promote him for both discriminatory and

retaliatory reasons. The Court will consider each category of claims in turn.

A. Discrimination Claims

Title VII provides that “[a]ll personnel actions affecting employees or applicants for

employment . . . in executive agencies . . . shall be made free from any discrimination based on

race [or] color.” 42 U.S.C. § 2000e–16(a). A plaintiff like Fitzig who lacks direct evidence of

discrimination must rely on the burden-shifting framework of McDonnell Douglas Corp. v.

Green,

(1973), to make out his case. Under McDonnell Douglas, a plaintiff bears

the initial burden of establishing a prima facie case of discrimination. Holcomb,

.

In a failure-to-promote case, this means that the plaintiff must prove by a preponderance of the

evidence that “(1) she is a member of a protected class; (2) she applied for and was qualified for

an available position; (3) despite her qualifications, she was rejected; and (4) either someone

filled the position or it remained vacant and the employer continued to seek applicants.”

(internal quotation marks omitted). Once a plaintiff makes out a prima facie case, the burden

13 shifts to the employer, who must “articulate a legitimate, nondiscriminatory reason for its

action.” Figueroa v. Pompeo,

(D.C. Cir. 2019) (internal quotation marks

omitted). “If the employer meets its burden of production, the burden then shifts back to the

employee, who must prove that, despite the proffered [nondiscriminatory] reason, she has been

the victim of intentional discrimination.”

(internal quotation marks omitted). Doing

so entails demonstrating that a reasonable jury could find that the employer’s purported reason

for not promoting the plaintiff was pretextual and that the actual reason was intentional

discrimination. Iyoha v. Architect of the Capitol,

(D.C. Cir. 2019).

In Brady v. Office of the Sergeant at Arms,

(D.C. Cir. 2008), the D.C.

Circuit added a twist to the McDonnell Douglas framework, holding that when “an employer has

asserted a legitimate, non-discriminatory reason for [its] decision, the district court need not—

and should not—decide whether the plaintiff actually made out a prima facie case” at McDonnell

Douglas step one. Instead, the court must turn directly to McDonnell Douglas step three and the

ultimate issue of whether the employer intentionally discriminated against the employee or not.

But the “Brady shortcut” applies only if the employer has truly satisfied its burden of

production. Figueroa,

. In Figueroa v. Pompeo,

, the D.C.

Circuit clarified that aspect of Brady’s refinement to the McDonnell Douglas framework. Under

Figueroa, an employer’s purportedly legitimate justifications for its action must be

“[]sufficiently substantiated” in order for a court to proceed directly to McDonnell Douglas step

three.

. A vague or conclusory explanation will not do.

. Several

factors are “paramount” in making this assessment: (1) “the employer must produce evidence

that a factfinder may consider at trial (or a summary judgment proceeding);” (2) the evidence

must be such that if the factfinder believed it, the factfinder could “reasonably . . . find that the

14 employer’s action was motivated by a nondiscriminatory reason;” (3) “the nondiscriminatory

explanation must be legitimate”—that is, “facially credible in light of the proffered evidence;”

and (4) “the evidence must present a clear and reasonably specific explanation,” because a

plaintiff “cannot be expected to disprove” an explanation that has not “been articulated with

some specificity.”

at 1087–88 (internal citations and quotation marks omitted).

Applying this reticulated framework, the Court must begin its analysis at McDonnell

Douglas step two and decide whether the explanations for not promoting Fitzig that the Secret

Service has proffered pass muster under Figueroa. Only after assuring itself of the sufficiency of

these reasons may the Court consider whether a reasonable jury could conclude that they are

pretextual.

1. The Secret Service’s Justifications for Not Promoting Fitzig

It is helpful at the outset to review again how the promotion process functioned for the

vacancies at issue, in particular those in FSD. For the FSD vacancies (Vacancies 17116, 17157,

and 17165), Leary and Ciatti recommended candidates to Loveridge, who recommended them to

Breslin, who recommended them to Jenkins (the selecting official), who brought them to the

Advisory Board. There is no evidence that Jenkins and Breslin took issue with Loveridge’s

recommendations or even that they relied on any factors independent of those on which

Loveridge (and Leary and Ciatti) relied. As a result, although Jenkins was the selecting official,

the substantive reasons for Fitzig’s non-selection are those that motivated Leary, Ciatti, and

Loveridge, the officials most involved in weighing the merits of the applicants. A similar

process was used for the non-FSD vacancies, just with different personnel. This multi-step

decision-making procedure is no barrier to liability, however. If one decisionmaker acts at the

behest of another, and the latter is motivated by an impermissible purpose, that purpose infects

the ultimate decision and the employer can be held liable. See Staub v. Proctor Hosp.,

(2011) (discussing “cat’s paw” theory of liability); Noisette v. Lew, 211 F. Supp.3d 73,

94 (D.D.C. 2016).

Bearing that in mind, the Court turns to the FSD vacancies. The same decisionmakers

selected the candidates for each of these vacancies, and they gave essentially the same

justifications for not selecting Fitzig each time. The Court will therefore consider these

vacancies together. In each instance, Leary, Ciatti, and Loveridge contend that the other

candidates were better qualified than Fitzig. In support of that contention, they extol the

credentials and qualifications of the candidates they selected and point to concerns that they

assertedly had about Fitzig’s judgment, professionalism, and leadership potential.

The Court begins with the qualifications of the selected candidates. The Court will not

recount the resumes of the selectees in detail, because it does so below at the next stage of the

analysis. It suffices for the moment to say that the Secret Service relies upon the resumes and

strong track records of Hughes, Kistler, Ripperger, Hall, and Falgout and specifies why they

were well qualified for the roles for which they were selected. See generally Dkt. 46-1 at 31–72

(Pl.’s Resp. Def.’s SUMF ¶¶ 127–293). For Vacancy 17116, the Secret Service also highlights

that Hughes and Kistler had strong reputations, noting in particular that Leary, their supervisor,

believed that Hughes was “well respected by other examiners,”

(Pl.’s Resp. Def.’s

SUMF ¶ 146), and that Kistler had “proven [his] leadership skills in a relatively short time

[within FSD]” and had “an excellent demeanor and a great amount of professionalism,” Dkt. 39-

4 at 28 (Leary EEO Decl. ¶ 12). Loveridge had also worked directly with Hughes and Kistler,

and he contends that their performance had “impressed” him. Dkt. 46-1 at 39–40 (Pl.’s Resp.

Def.’s SUMF ¶ 159). Similarly, as to Vacancy 17157 the Secret Service emphasizes Ripperger’s

strong qualifications and reputation as a “top-level examiner,” as well as Loveridge’s belief that

16 she had “organizational skills, attention to detail, administrative skills, and communications

skills, all of which were needed for the position.”

at 52–53 (Pl.’s Resp. Def.’s SUMF ¶¶ 214,

219). And for Vacancy 17165, the Secret Service lauds the qualifications and strong reputations

of selectees Hall and Falgout, in particular Hall’s experience as a mentor and quality control

examiner and Falgout’s decorated tenure as an agent. See

at 63–65 (Pl.’s Resp. Def.’s SUMF

¶¶ 257–60, 264–69).

More importantly, the Secret Service explains why in each instance Leary and Ciatti did

not recommend Fitzig. According to Leary and Ciatti, Fitzig had “demonstrated questionable

judgment and poor decision-making skills,” which gave them pause regarding his “potential as a

manager and a leader” and led them to doubt his “professionalism” and “judgment.”

at 42–

44, 54–56, 66–68 (Pl.’s Resp. Def.’s SUMF ¶¶ 174–81, 224–28, 275–78). Specifically, Leary

recalled an instance in which Fitzig “was removed as a Quality Control Examiner” and a further

incident in which Fitzig allegedly called a colleague on a weekend and impersonated that

colleague’s supervisor in an effort to obtain information from the colleague.

(Pl.’s Resp. Def.’s SUMF ¶¶ 176, 225, 275); Dkt. 40-7 at 5 (Leary Decl. ¶ 37). Likewise, Ciatti

detailed negative experiences in which Fitzig had abruptly hung up on a phone call with him and

Leary and sent an email to Ciatti’s supervisor that Ciatti believed “grossly misinterpreted”

Ciatti’s prior communications with Fitzig.

at 43–44, 56, 67–68 (Pl.’s Resp. Def.’s SUMF

¶¶ 176–80, 226–28, 276–78). Ciatti also noted that Fitzig had been subjected to two quality

control checks because the polygraph operations team did not concur with Fitzig’s evaluations of

polygraph exams.

at 43–44, 55–56, 66–68 (Pl.’s Resp. Def.’s SUMF ¶¶ 176–80, 225–28,

275–78). Collectively, these incidents convinced Leary, Ciatti, and Loveridge that Fitzig was

not ready to advance to the GS-14 level.

17 These justifications for not promoting Fitzig suffice under Figueroa. The Secret Service

has submitted declarations from Leary, Ciatti, Loveridge, Breslin, and Jenkins (and a deposition

of Loveridge) containing the representations set forth above, and those materials constitute

competent summary judgment evidence. Dkt. 39-4 at 36–45 (Breslin EEO Decl.); Dkt. 40-2

(Loveridge Dep.); Dkt. 40-7 (Leary Decl.); Dkt. 40-8 (Ciatti Decl.); 41-1 (Jenkins Decl.); see

also Figueroa,

. If believed, these explanations would allow a reasonable

factfinder to conclude that the Secret Service declined to promote Fitzig for nondiscriminatory

reasons. Figueroa,

. The alleged incidents that Leary and Ciatti recount reflect

poorly on Fitzig and could justify selecting other candidates, in particular given those candidates’

strong credentials. The explanations are also “facially credible in light of the proffered

evidence.”

(internal quotation marks omitted). Finally, although general statements

about leadership potential and reputation might fall short of Figueroa’s reasonable specificity

requirement, the Secret Service provided concrete examples of Fitzig’s conduct to support their

application of these otherwise subjective criteria. Figueroa cited favorably to Stewart v.

Ashcroft,

(D.C. Cir. 2003), in which an employer provided the general

justification that a candidate selected for promotion was “more qualified” with a “more keen

interest in management” than the plaintiff but backed up these statements with examples, such as

the plaintiff’s “rare[]” attendance at management meetings, complaints the plaintiff had received

about his management, and the slipshod job application he had submitted. Figueroa,

(citing Stewart, 352 F.3d at 428–29). That was enough to proceed to step three of the

analysis, because the employer had “put the plaintiff on notice of what reasoning he must

challenge.”

The same is true here.

18 The Secret Service’s explanation for selecting Fagan instead of Fitzig for Vacancy 17209

is different, because McKevitt, rather than Leary, Ciatti, and Loveridge, was the key individual

in the selection process. Dkt. 46-1 at 73, 78 (Pl.’s Resp. Def.’s SUMF ¶¶ 300, 327–28).

According to McKevitt, he recommended Fagan rather than Fitzig because Fagan had a broader

diversity of experiences than Fitzig did, which was important for the multifaceted, generalist

position at issue.

at 76–77 (Pl.’s Resp. Def.’s SUMF ¶ 320). McKevitt stressed that Fitzig

“had spent the most recent 9–10 years of his career as a polygrapher assigned to [FSD],” rather

than performing a broader variety of agency responsibilities, something that in McKevitt’s view

worked against Fitzig. Dkt. 41-12 at 4 (McKevitt Decl. ¶ 32); Dkt 46-1 at 76–77 (Pl.’s Resp.

Def.’s SUMF ¶ 320). McKevitt also noted that he had worked directly with Fagan and had

“witnessed first[]hand” that the “productiv[ity] [of] the advance team dropped significantly when

[] Fagan was not involved in some capacity” in the advance planning, whereas he had no such

track record with Fitzig. Dkt. 41-9 at 2 (Def.’s Ex. 19); Dkt. 46-1 at 76–77 (Pl.’s Resp. Def.’s

SUMF ¶¶ 318, 321). These justifications too are sufficient under Figueroa. They are presented

in admissible form (a declaration from McKevitt and his written recommendation of Fagan),

constitute reasonable bases for selecting Fagan over Fitzig, and are facially credible and

reasonably specific. Figueroa, 923 F.3d at 1087–88.

According to the Secret Service, Fitzig’s relative lack of diverse experience and support

from his supervisors also cost him Vacancy 17195. Buster, the selecting official, explained that

diversity of experience was a “significant factor” in his evaluation of the candidates, because it

was indicative of leadership skills and potential, which were of paramount importance to him.

Dkt. 40-9 at 3 (Buster Decl. ¶ 21); Dkt. 46-1 at 82, 88 (Pl.’s Resp. Def.’s SUMF ¶¶ 350–53,

377). In his view and that of Habersaat, the individuals selected for this vacancy, Desmond and

19 Canfield, had a greater diversity of experience than Fitzig did. Dkt. 46-1 at 86 (Pl.’s Resp.

Def.’s SUMF ¶ 371). Desmond had served in five assignments at the time of his selection,

including in the Boston field office, Frankfurt resident office, Vice Presidential Protective

Division, International Programs division, and Airspace Security Branch. Id. at 83 (Pl.’s Resp.

Def.’s SUMF ¶ 356). He also had other leadership credentials, including serving as the Secret

Service’s representative on the FBI’s Joint Terrorism Task Force and as whip of multiple units

and Acting Assistant to the Special Agent in Charge of the counter-surveillance unit. Id. at 83–

84 (Pl.’s Resp. Def.’s SUMF ¶¶ 357–59). Canfield, for her part, had served in the New York,

White Plains, and Washington offices and on both Dignitary and Presidential Protection Details.

Id. at 84–85 (Pl.’s Resp. Def.’s SUMF ¶ 364). From Buster and Habersaat’s perspective,

Desmond and Canfield’s experiences were more diverse than those of Fitzig. Id. at 86–88 (Pl.’s

Resp. Def.’s SUMF ¶¶ 371–72, 377). In addition, Buster and Habersaat stressed that Canfield

and Desmond had more experience with the Secret Service’s airspace mission and the special

operations branch than did Fitzig, who had spent the last ten years as a polygrapher. Id. at 87–88

(Pl.’s Resp. Def.’s SUMF ¶¶ 373–74). Buster believed that spending a decade in one position

was “not the norm for someone seeking promotion and reflected a certain staleness of experience

which worked against [Fitzig].” Dkt. 40-9 at 4 (Buster Decl. ¶ 25); Dkt. 46-1 at 89 (Pl.’s Resp.

Def.’s SUMF ¶ 378). Finally, unlike Canfield, Fitzig did not receive a recommendation from

anyone in his chain of command. Dkt. 46-1 at 86, 89 (Pl.’s Resp. Def.’s SUMF ¶¶ 370, 379).

These reasons also satisfy Figueroa.

. The Secret Service offered

competent evidence to support those justifications, and, if true, they provide a reasonable basis

for the decision to select Desmond and Canfield rather than Fitzig.

They are also facially

credible, and Buster and Habersaat articulated them with ample specificity.

.

20 2. Pretext

Because the Secret Service has come forward with legitimate, non-discriminatory reasons

for not selecting Fitzig, the Court will proceed to step three and determine whether a reasonable

jury could find that these reasons were pretextual and that the real reasons for not selecting Fitzig

were discriminatory. See Brady,

.

a. Fitzig’s Race and Color

Before turning to the main portion of the analysis, the Court must address two threshold

issues related to Fitzig’s race and color. Fitzig contends that he was discriminated against

because he is Black and because he has multiracial coloring. Dkt. 3 at 17 (Compl. ¶ 74). The

Secret Service argues that the officials involved in the selections for the vacancies in question

could not have discriminated against Fitzig because he was Black, because they did not know he

was Black. Dkt. 38-1 at 50; Dkt. 50 at 11. According to the Secret Service, most of Fitzig’s

colleagues did not believe him to be Black, and he had previously represented that he was

“Native American/Alaskan.” Dkt. 50 at 11. But Fitzig responds that it is readily apparent from

his appearance that he is a multiracial Black man. Dkt. 46 at 5–6. The Court cannot resolve at

summary judgment whether Fitzig’s race is discernable from his appearance, nor whether the

relevant decisionmakers (or those who influenced the promotion decisions) knew or believed that

he is Black. So the Secret Service’s lack-of-knowledge arguments fail.

For similar reasons, the Court cannot grant summary judgment to the Secret Service

based on the fact that Fitzig represented to the agency that he was Native American/Alaskan.

Dkt. 50 at 11; Dkt. 39-7 at 34 (Def.’s Ex. 1). For one thing, Fitzig maintains that he is mixed

race, Dkt. 46 at 5, so the fact that he represented himself as Native American/Alaskan would not

preclude his also being Black. For another, if any of the decisionmakers (or those who

21 influenced the promotion process) knew or believed that he is Black, it does not matter (at least

for purposes of this motion) whether he filled out a form at some point saying that he was Native

American/Alaskan. Finally, Fitzig could have faced discrimination based on his “color,” even if

the particular racial identity associated with his complexion was not obvious.

Relatedly, the Court will treat Fitzig’s race and color claims as a single category of claim.

Courts often treat color discrimination claims as subsumed into race discrimination claims. See,

e.g., Rodriguez v. Wash. Metro Transit Auth., No. 19-3710,

, at *5 (D.D.C.

Aug. 23, 2021); Howard v. D.C. Pub. Schs.,

, 121 n.15 (D.D.C. 2007); Felix

v. Marquez, No. 78-2314,

, at *1 (D.D.C. Sept. 11, 1980) (noting that “[c]olor may

be a rare claim, because color is usually mixed with or subordinated to claims of race

discrimination”). That approach is appropriate here. Fitzig has provided no independent

evidence of discrimination that was based—discretely—on race or based—discretely—on color.

So for the sake of clarity, and because no part of the Court’s disposition would change if it

analyzed Fitzig’s race and color claims separately, the Court will treat all of his claims as race

discrimination claims.

b. Race Discrimination Pretext Analysis

At step three of the governing framework, Fitzig bears the burden of demonstrating that a

reasonable jury could find that the Secret Service’s justifications for not promoting him are

pretextual and that its real reasons were discriminatory. Because a “factfinder’s disbelief of the

reasons put forward by the defendant” may support to an inference of discrimination, rebutting

an employer’s justifications may, at times, suffice to counter an employer’s motion for summary

judgment. St. Mary’s Honor Ctr. v. Hicks,

(1993). To assess whether Fitzig

has met his burden here, the Court must consider “the total circumstances of the case” and ask

22 “whether the jury could infer discrimination from the combination of (1) the plaintiff’s prima

facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation

for its actions; and (3) any further evidence of discrimination that may be available to the

plaintiff . . . or any contrary evidence that may be available to the employer.” Hamilton v.

Geithner,

(D.C. Cir. 2012) (alteration in original) (internal quotation marks

omitted). Having done so, the Court concludes that there is sufficient evidence—although just

barely—for a reasonable jury to find that the Secret Service’s explanations for not selecting

Fitzig for the FSD vacancies (Vacancies 17116, 17157, and 17165) were pretextual and that its

real reasons were discriminatory. No reasonable jury, however, could reach this same result for

the non-FSD vacancies (Vacancies 17209 and 17195).

i. The FSD Vacancies: Vacancies 17116, 17157, and 17165

Because the FSD vacancies all present essentially the same issues, the Court will analyze

them together. To recap: Fitzig was not selected for any of these three vacancies because Ciatti,

Leary, and Loveridge did not recommend him. Dkt. 46-1 at 42, 54, 66 (Pl.’s Resp. Def.’s SUMF

¶¶ 174, 222, 270). Ciatti and Leary contend that they did not recommend Fitzig because the

other candidates were better qualified and, in particular, because they harbored doubts about his

judgment, decisionmaking, professionalism, communication abilities, and leadership potential.

at 42–44, 54–56, 66–68 (Pl.’s Resp. Def.’s SUMF ¶¶ 174–81, 224–28, 275–78). Several

incidents purportedly drove these concerns: Fitzig’s removal as a quality control examiner, an

incident in which Fitzig called a colleague and impersonated someone else, a situation in which

Fitzig abruptly hung up the phone on Ciatti and Leary, an email Fitzig sent to Ciatti’s supervisor

that Ciatti contends “grossly misinterpreted prior communications,” and the fact that Fitzig had

twice been the subject of a quality control check because the polygraph operations team did not

23 concur with his evaluations of a polygraph exam.

at 43–44, 55–56, 66–67 (Pl.’s Resp. Def.’s

SUMF ¶¶ 176–80, 225–28, 275–78). Loveridge, in turn, explained that he relied on Ciatti and

Leary’s recommendations. Dkt. 40-2 at 48 (Loveridge Dep. 185: 5–22, 186: 1–22, 187: 1–11).

Fitzig’s task is to show that a reasonable jury could believe that these proffered justifications are

pretextual and that Ciatti, Leary, and Loveridge intentionally discriminated against him. Cruz v.

McAleenan,

(D.C. Cir. 2019).4

Fitzig’s lead argument is that his qualifications were superior to those of the agents

selected for these vacancies and that this discrepancy gives rise to an inference of discrimination.

Dkt. 46 at 23–33. Although a gap in qualifications can sometimes show that an employer’s

proffered justification for its actions is pretextual, the bar is a high one. The D.C. Circuit has

recognized that “[i]n a close case, a reasonable juror would usually assume that the employer is

more capable of assessing the significance of small differences in the qualifications of the

candidates, or that the employer simply made a judgment call.” Holcomb,

(quoting Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (en banc)). The court

has further explained that “Title VII liability cannot rest solely upon a judge’s determination that

an employer misjudged the relative qualifications of admittedly qualified candidates.”

Fischbach v. D.C. Dept. of Corrs.,

(D.C. Cir. 1996). Accordingly, to survive

summary judgment based on a disparity in qualifications alone, an employee must show that “the

qualifications gap ‘is great enough to be inherently indicative of discrimination.’” Hamilton,

(quoting Holcomb,

). Such an inference is reasonable where a

4 Although Breslin and Jenkins were also involved in the FSD vacancy decisions, there is very little evidence regarding their decision-making beyond the fact that they concurred with Loveridge’s recommendations, and, in any event, the Court’s analysis of the evidence regarding Leary, Ciatti, and Loveridge is sufficient for it to deny summary judgment as to these vacancies.

24 plaintiff is “markedly more qualified,” “substantially more qualified,” or “significantly better

qualified” than those chosen over him.

If that is true, “the factfinder can legitimately infer

that the employer consciously selected a less-qualified candidate—something that employers do

not usually do, unless some other strong consideration, such as discrimination, enters into the

picture.” Aka,

.

Fitzig’s qualifications arguments do not get him very far. Any discrepancies between his

qualifications and those of the individuals selected for the vacancies in question are not

substantial enough to give rise to a reasonable inference of discrimination. Starting with the

basics, all of the successful candidates were highly experienced with tenures similar to Fitzig’s:

Fitzig had spent nineteen years with the Secret Service as compared to Hughes and Kistler’s

eighteen, Ripperger’s sixteen, Hall’s fifteen, and Falgout’s seventeen. Dkt. 46-1 at 1, 36, 37, 51,

63, 64 (Pl.’s Resp. Def.’s SUMF ¶¶ 2, 144, 148, 210, 255, 261–62). And like Fitzig, all of the

agents besides Ripperger had worked in multiple field offices.

at 1–2, 36, 37, 52–53, 63, 64

(Pl.’s Resp. Def.’s SUMF ¶¶ 3, 5–6, 145, 149, 215–16, 255, 263). Although Ripperger had not

done so, she had taken on significant responsibility in the Washington office.

at 52–53 (Pl.’s

Resp. Def.’s SUMF ¶¶ 215–16). Similarly, all of the selectees besides Ripperger had, like Fitzig,

spent multiyear stints in presidential, vice presidential, or former presidential protection work.

at 1–2, 36, 37, 51, 53, 63, 64 (Pl.’s Resp. Def.’s SUMF ¶¶ 4, 145, 149, 211, 217, 256, 263).

And Ripperger, for her part, had spent several years with the Protective Intelligence and

Assessment Division and served as a quality control examiner. Id. at 51, 53 (Pl.’s Resp. Def.’s

SUMF ¶¶ 211, 217). All of the candidates, including Fitzig, had strong reputations. Dkt. 46-1 at

36, 38, 39, 52, 53, 63, 64–65, (Pl.’s Resp. Def.’s SUMF ¶¶ 146, 152, 156, 214, 219, 257, 264,

266–67); id. at 96 (Pl.’s SUMF ¶¶ 25–28). Fitzig disputes whether this was true of Ripperger,

25 but he provides little evidence beyond his own say-so in support of this proposition. Id. at 52

(Pl.’s Resp. Def.’s SUMF ¶ 214). Loveridge also acknowledged that he had some concerns

about Ripperger arising out of a conflict that she had with Fitzig, but he explained that Ciatti and

Leary nevertheless convinced him that Ripperger was the best-qualified candidate. Dkt. 40-2 at

53 (Loveridge Dep. 207:1–20). Finally, although Fitzig had a higher MPP score than did any of

the selected candidates, Dkt. 39-6 at 33 (Def.’s Ex. 1); 39-7 at 1, 15 (Def.’s Ex. 1); Dkt. 46-1 at

1, 36, 37, 51, 63, 64 (Pl.’s Resp. Def.’s SUMF ¶¶ 2, 144, 148, 210, 255, 261–62), there are other

puts and takes—titles some held that others did not, commendations some received and others

did not, and the like—which render comparisons inexact.

Any disparities that did exist between Fitzig’s qualifications and those of the selected

candidates fall short of those courts have previously held sufficient to give rise to an inference of

discrimination. In Aka v. Washington Hospital Center, for example, the D.C. Circuit held that

discrimination could be inferred because the plaintiff, who had not been selected for a position at

a pharmacy, had undergraduate and graduate degrees and nineteen years of relevant experience,

whereas the individual selected for the position had no college degree and less than one year of

experience at a hospital laundry. 156 F.3d at 1295–96. The D.C. Circuit reached a similar

conclusion in Stoe v. Barr, where the plaintiff had already successfully performed the duties of

the role in question for many years, had previously supervised the candidate chosen for the

position, and had twelve more years of experience at the relevant agency than did the chosen

candidate.

, 640–41 (D.C. Cir. 2020). And in Hamilton v. Geithner, the D.C.

Circuit observed that it was a “relatively close question” whether a candidate with nineteen years

of experience in industrial safety and a master’s degree, among other credentials, was

“significantly” or “markedly” more qualified for purposes of pretext analysis than a candidate

26 with “no college degree and little formal training in occupational safety” but who had “eight

years of substantive safety experience.” 666 F.3d at 1352–53; see also Lathram v. Snow,

, 1092 (D.C. Cir. 2003) (denying summary judgment in a non-selection case related to

a public affairs role where there was “a wide and inexplicable gulf between the qualifications” of

the plaintiff, who had years of public affairs experience and had already performed much of the

work for the role in question, and the selectee, an “unemployed former journalist”). Any gap in

qualifications here—even with respect to Ripperger, where any such gap was arguably the

greatest—does not approach what the D.C. Circuit has held is sufficient, at least standing alone,

to support an inference of discrimination. Fitzig, for his part, has failed to identify a single case

in which facts resembling those in this case were found to be indicative of pretext.

But that does not end the inquiry. Although Fitzig cannot defeat summary judgment

based on a comparison of qualifications alone, he points to other considerations that, in

combination with the comparison evidence and other evidence, allow him to do so. Holcomb,

(noting that a plaintiff is “not require[d] to establish [a] disparity [in

qualifications] in order to survive a motion for summary judgment”). This does not mean that

the Court is convinced that Fitzig was, in fact, denied these promotions because of his race or

color. That is a question for the jury. The Court merely concludes that he has produced enough

evidence—and just enough evidence—to take the case to trial.

First, Fitzig’s supervisors arguably gave more credence to evidence that counted against

Fitzig than evidence that spoke well of him. It is well-established that “shifting and inconsistent

justifications are probative of pretext,” Geleta v. Gray,

(D.C. Cir. 2011)

(internal quotation marks and citation omitted), and the same principle applies to internal

inconsistency in how a supervisor evaluates a candidate. Viewing the evidence in the light most

27 favorable to Fitzig as the nonmoving party, one such inconsistency can be identified in Ciatti’s

explanation of how he evaluated the candidates. Ciatti claimed that he did not consider the

candidates’ relative MPP scores when assessing them. Dkt. 40-8 at 4 (Ciatti Decl. ¶ 23). He said

that instead he looked for the following characteristics: communication, teamwork, cooperation,

representation of the agency, technical proficiency, work ethic, decision-making,

professionalism, leadership/potential for leadership, and peer respect. Dkt. 38-2 at 16 (Def.’s

SUMF ¶ 110). The difficulty is that the MPP was apparently designed, at least in part, to

measure those very qualities. Although the parties dispute exactly what criteria the MPP aimed

to measure, Dkt. 50-1 at 32–33 (Def.’s Resp. Pl’s SUMF ¶ 45), even accepting the Secret

Service’s account as the correct one, their overlap with the criteria Ciatti claimed to emphasize is

striking. The competencies the MPP apparently tested for included: “Communicating

Effectively” (as compared to “communication); “Relate to Others” (as compared to “teamwork”

and “cooperation”); “Knowledge of Investigative Procedures & Techniques” (as compared to

“technical proficiency”); “Judgment” and “Decisiveness” (as compared to “decision-making”);

“Conscientiousness” (as compared to “professionalism”); and “Lead Others” (as compared to

leadership/potential for leadership). Dkt 39-9 at 4–8 (Pl.’s Ex. 1).

The arguable disconnect between the low value Ciatti placed on the MPP and the high

value he placed on the characteristics the MPP measured might support an inference that Ciatti’s

proffered reasons were pretextual. After all, if (as Ciatti claimed) he was focused on fairly

assessing, for example, Fitzig’s leadership, decisionmaking, and communications skills, Dkt. 40-

8 at 8 (Ciatti Decl. ¶ 47), a reasonable jury might wonder why he discounted Fitzig’s

outperformance on a test designed to measure those very attributes and, instead, focused on

things that arguably called Fitzig’s leadership abilities, judgment, and communication skills into

28 doubt. A further and related problem arises from the fact that the Secret Service created an

ostensibly objective metric to measure the competencies Ciatti claimed to value, yet Ciatti

ignored that metric in favor of his own subjective assessment of these competencies. An

employer is, of course, permitted to rely on subjective assessments when making promotion

decisions. Aka,

. But courts must treat “explanations that rely heavily on

subjective considerations with caution,” because subjective criteria may be used to “camouflage”

discrimination.

Such caution appropriately turns to skepticism where, as here, an employer

entirely discounts a more objective assessment of certain criteria in favor of a wholly subjective

assessment of essentially the same criteria, see Hamilton,

, and that subjective

measure, time and again, works to the disadvantage of a highly ranked employee who is a

member of a protected class.

Second, Fitzig has marshaled some evidence that a reasonable jury might conclude casts

doubt on whether the episodes that Ciatti and Leary recount actually concerned them as much as

they say. Most significant is the last performance evaluation Fitzig received prior to his non-

selection for the vacancies at issue. It rated him “outstanding”—the highest rating available—on

the specific competencies of “[c]ommunication” and “[r]epresenting the [a]gency.” Dkt. 39-8 at

2 (Def.’s Ex. 1). This assessment is directly at odds with Ciatti’s asserted concerns about, among

other things, Fitzig’s communication and professionalism. Dkt. 38-2 at 26 (Def.’s SUMF ¶ 177).

On its own, this disconnect might not prove much; an employee could perhaps be outstanding in

his current role but still be unprepared for a promotion, or an employer might routinely inflate

annual evaluations. But in that same review Leary wrote: “It is expected that SSA Fitzig will

assume additional leadership responsibilities within the USSS Polygraph Program in the future.”

Dkt. 39-8 at 3 (Def.’s Ex. 1). It was not long after writing this, however, that Leary declined to

29 recommend Fitzig for such “additional leadership responsibilities” because of his purported

concerns about Fitzig’s “potential as a . . . leader.” Dkt. 38-2 at 26 (Def.’s SUMF ¶ 176).

The disconnect in Leary’s assessments of Fitzig is all the more striking because,

according to Loveridge, Leary told him “that he [i.e., Leary] would rather have [Vacancy 17116]

remain unfilled than recommend SA Fitzig for the position.” Dkt. 39-4 at 28 (Loveridge EEO

Decl. ¶ 13). It is one thing to say that a highly regarded employee was denied promotion because

another highly regarded employee edged him out. It is an entirely different matter, however, to

rate an employee as “outstanding” in the relevant competency, to tell him that “[i]t is expected

that” he will assume greater responsibilities in the office at issue, and to then inform the

recommending official that it would better to leave a vacancy unfilled than to promote that

“outstanding” employee. A positive evaluation that is inconsistent with an employer’s asserted

justification for taking a challenged action can suggest pretext, see Giles v. Transit Emps. Fed.

Credit Union,

(D.C. Cir. 2015), and, here, a reasonable jury could make such an

inference. The Secret Service responds that Leary’s comment in Fitzig’s evaluation pertained

only to his expectations for Fitzig’s current role and did not address Fitzig’s suitability for a

promotion. Dkt. 50-1 at 21 (Def.’s Resp. Pl.’s SUMF ¶ 29). Perhaps that is true. But a

reasonable jury could find that Leary changed his story and was offering a post hoc rationale for

his strong opposition to Fitzig assuming the very additional responsibilities that he earlier

“expected” Fitzig to assume.

George v. Leavitt,

(D.C. Cir. 2005), is instructive on this issue. In that case,

the EPA had discharged the plaintiff, purportedly because of “problems associated with her

conduct and performance, including problems interacting with other staff, making rude

comments and loud outbursts which affected the morale of the office, and deficiencies in

30 performance.”

(internal quotation marks omitted). To show pretext, the plaintiff

relied heavily on a performance review, which stated that she “routinely me[t] her deadlines, that

she work[ed] effectively with office staff, and that her work require[d] no more than minor

revisions and show[ed] considerable thought, insight and creativeness.”

(cleaned up)

(internal quotation marks omitted). The D.C. Circuit held that this evidence provided a sound

basis for inferring that the EPA’s justification for terminating the plaintiff was pretextual,

notwithstanding the court’s recognition that the record also “contain[ed] evidence to support

EPA’s claim that [the plaintiff] had conduct and performance deficiencies.”

(internal

quotation marks omitted). The situation here is similar: Ciatti and Leary assert that they doubted

Fitzig’s professionalism, communication skills, and leadership potential. Yet his performance

review—to which at least Leary contributed—paints a different picture. “[A] jury may

ultimately decide to credit” the views expressed in this litigation over those in Fitzig’s

performance review, but that is not a matter for summary judgment.

.

Third, the combination of Loveridge’s decision not to speak to Fitzig’s Black supervisors

and the explanations he provided for this decision provide some additional basis for inferring

pretext. When selecting individuals to recommend for the FSD vacancies, Loveridge discussed

candidates only with Leary and Ciatti. Dkt. 38-2 at 14–15 (Def.’s SUMF ¶¶ 99, 105). He did

not seek recommendations from FSD’s only two Black supervisors, Bill Lewis and Edward

Alston. Dkt. 46-1 at 101 (Pl.’s SUMF ¶ 59); Dkt. 50-1 at 40 (Def.’s Resp. Pl.’s SUMF ¶ 59).

Standing alone, that might merely raise an eyebrow, because, as the Secret Service points out,

Loveridge was not obligated to consult with all of the supervisors and, in fact, did not consult

with certain white supervisors. Dkt. 50-1 at 40 (Def.’s Resp. Pl.’s SUMF ¶ 59). But considered

31 along with the other evidence, a reasonable jury could find Loveridge’s explanations less than

credible and, having done so, could infer a purpose to favor white applicants.

Starting with Vacancy 17116, Loveridge testified at deposition that he did not consult

with Lewis because Lewis was not a polygraph examiner, because Lewis lacked “technical

credibility” on polygraphing, and because Lewis had been reassigned within FSD and was no

longer supervising the polygraph program by the time selections were made for this vacancy.

Dkt. 38-2 at 16–17 (Def.’s SUMF ¶¶ 112–15); Dkt. 40-2 at 51 (Loveridge Dep. 197: 10–22). A

jury could question the first two of these explanations because they are at odds with how

Loveridge otherwise characterized his priorities in the selection process. For example, he

justified the selection of Hughes and Kistler over Fitzig primarily on the basis of qualities like

leadership and managerial capabilities, not polygraph expertise. Dkt. 40-2 at 49 (Loveridge Dep.

189: 3–17; 191: 7–11; 192: 1–11); Dkt. 38-2 at 24 (Def.’s SUMF ¶ 159). That is fair enough.

But if Loveridge was focused on assessing non-technical skills and leadership potential, a

reasonable jury could find it implausible that Lewis’s lack of technical polygraph proficiency

was the reason Loveridge declined to seek his input.

The parties also dispute whether Lewis had in fact been reassigned at the time selections

were made for Vacancy 17116. Dkt. 50-1 at 41–43 (Def.’s Resp. Pl.’s SUMF ¶¶ 61–62).

Vacancy 17116 was filled on June 30, 2017, and the Secret Service maintains that Lewis left his

supervisory role at FSD on June 19, 2017. Dkt. 38-2 at 17, 21 (Def.’s SUMF ¶¶ 115, 139). But

in his declaration, Lewis says that he was Fitzig’s supervisor “[a]t the time of the vacancy

announcement/selection for [Vacancy] 17116” and that he was succeeded in his role by Leary

“effective July 23, 2017”—nearly a month after the 17116 selections. Dkt. 46-4 at 2 (Lewis

Decl. ¶¶ 2–4). To state the obvious, if Lewis had not yet been reassigned at the time of the

32 selection for this vacancy, stating that he had been reassigned is no justification for not

consulting him.

To be sure, employers are not required to speak with every possible reference for

candidates when making promotional decisions, and their failure to do so, standing alone, does

not give rise to an inference of discrimination. But it is equally true that an employer may not

avoid speaking with those in a protected class if the purpose of such avoidance is to impede the

promotion of others in that class, presumably by excluding from the conversation those who

might present a barrier to discriminatory decisionmaking. It may well be that nothing of the sort

occurred here. But the combination of Loveridge decision to speak to only two, white FSD

supervisors and failure to seek input from Fitzig’s only Black FSD supervisor, and his arguably

inconsistent or unsupported justifications for that choice could allow a reasonable jury to infer

that these proffered reasons were pretextual.5

Although Lewis had been reassigned at the time Vacancies 17157 and 17165 were

announced, by that time Alston had been promoted to a supervisory role and, viewing the

evidence in the light most favorable to Fitzig, had become Fitzig’s only Black supervisor. Dkt.

46-1 at 101 (Pl.’s SUMF ¶ 59); Dkt. 50-1 at 40 (Def.’s Resp. Pl.’s SUMF ¶ 59). When selecting

who to recommend for these vacancies, Loveridge declined to consult with Alston just as he had

declined to consult with Lewis. Dkt. 46-1 at 101 (Pl.’s SUMF ¶ 59); Dkt. 50-1 at 40 (Def.’s

Resp. Pl.’s SUMF ¶ 59). Loveridge’s explanation for not consulting Alston with respect to

Vacancies 17157 and 17165 is not unreasonable: at the time of the selection for these vacancies,

Alston had been a supervisor for approximately a month, so his perspective would not have been

5 The Court does not consider Loveridge’s failure to speak with Alston relevant to Vacancy 17116, because Alston was not a supervisor at the time of selection for this vacancy. Dkt. 46-1 at 29 (Pl.’s Resp. Def.’s SUMF ¶ 116).

33 as informed as that of Leary and Ciatti. Dkt. 40-2 at 31 (Loveridge Dep. 119:16–22, 120:1–19).

All the same—and when considered along with the other evidence—a reasonable jury might

disbelieve Loveridge’s goldilocks approach to the only two Black FSD supervisors: Lewis was

on his way out, and Alston on his way in. Although such a finding would lie close to the line of

reasonableness, the other evidence in the case provides it some ballast, as does the fact that,

although Alston had only recently been promoted at the time decisions were made for Vacancies

17157 and 17165, he knew Fitzig well, having served in the polygraph program for many years

by that time. Dkt. 46-3 at 2 (Alston Decl. ¶¶ 2, 7). Not every bit of evidence or inference is

equally compelling, and this is just one piece of the puzzle. But a reasonable jury could find that

Loveridge’s failure to seek input from Fitzig’s two Black supervisors provides some support for

finding pretext.

This is a close case, and a jury need not infer pretext—and thus discrimination—from

any or all of the above. But, drawing all inferences in Fitzig’s favor, the Court concludes that a

reasonable jury could find that the Secret Service’s rationale for declining to promote Fitzig for

the 17116, 17157 and/or 17165 vacancies was pretextual and that the real reason was his race or

color. Fitzig, accordingly, has shown what he needs to show to survive summary judgment.

ii. Vacancies 17209 and 17195

The same is not true for Vacancies 17209 and 17195. For these vacancies, Fitzig’s case

turns almost entirely on relative qualifications arguments, and those arguments are no more

persuasive here than they were for the FSD vacancies just discussed.

As explained above, Vacancy 17209 was for an Assistant to the Special Agent in Charge

position in the Newark field office, and Special Agent Fagan was selected for the position. Dkt.

46-1 at 72, 73 (Pl.’s Resp. Def.’s SUMF ¶¶ 294, 303). Jenkins was the selecting official and

34 relied on the recommendation of Newark field office Special Agent in Charge McKevitt,

transmitted via Breslin. Id. at 73 (Pl.’s Resp. Def.’s SUMF ¶¶ 299–300). McKevitt’s

explanation for selecting Fagan over Fitzig is that, in his view, Fitzig did not have “nearly as

diverse a work history, nor the breadth or depth of leadership responsibilities” as did Fagan, in

large part because Fitzig “had spent the most recent 9-10 years of his career as a polygrapher

assigned to the [FSD].” Dkt. 41–12 at 4 (McKevitt Decl. ¶ 32).

To rebut McKevitt’s explanation, Fitzig once again points to what he believes to be his

superior qualifications. Dkt. 46 at 32–33.6 But Fitzig’s credentials were “simply not discernibly

better” than Fagan’s, Stewart,

, much less so superior that Fagan’s selection

raises the specter of discrimination. Fitzig and Fagan were both senior special agents, and

Fagan’s tenure with the Secret Service was one year longer than was Fitzig’s. Dkt. 46-1 at 1, 75

(Pl.’s Resp. Def.’s SUMF ¶¶ 2, 313). Fagan had worked in three field offices (Miami, West

Palm Beach, and Newark) as compared to Fitzig’s service in two (New York and Washington

D.C.).

at 1–2, 75, 76 (Pl.’s Resp. Def.’s SUMF ¶¶ 1, 3, 5–6, 312, 314–15, 317). Both had

been assigned to protect current or former presidents. Id. at 2, 75 (Pl.’s Resp. Def.’s SUMF ¶¶ 4,

314). No doubt Fitzig had significant leadership experience as a Group Leader in the New York

Bank Fraud Squad, Field Office Lead Agent Assist, Airspace Program Whip, and Acting

Assistant to the Special Agent in Charge in the Special Operations Division. Dkt. 50-1 at 2–4, 5

(Def.’s Resp. Pl.’s SUMF ¶¶ 3–6, 8–9). But Fagan had formidable leadership credentials too,

having served on two occasions as Resident Agent in Charge of the West Palm Beach office.

Dkt. 46-1 at 75 (Pl.’s Resp. Def.’s SUMF ¶¶ 314–15). It is true that Fitzig’s MPP score was

6 At one point Fitzig’s brief labels this Vacancy 17195, but it is evident from the record that he is discussing Vacancy 17209. Dkt. 39-6 at 11 (Def.’s Ex. 1).

35 higher than Fagan’s. Dkt. 41-10 at 1–2 (Def.’s Ex. 20). But that fact standing alone—absent

evidence that McKevitt, like Ciatti, disregarded MPP scores while purporting to consider the

very same criteria based on his own, subjective assessment—is insufficient to give rise to a

genuine dispute of material fact.

In focusing only on what he submitted were his superior qualifications, Fitzig also

ignores what was assertedly most important to McKevitt: diversity and depth of experience. Dkt.

41–12 at 4 (McKevitt Decl. ¶ 32). Significantly, Fitzig concedes that he “did not have the same

diversity of experiences or depth of experience as Fagan,” Dkt. 46-1 at 76–77 (Pl.’s Resp. Def.’s

SUMF ¶ 320), although, in the very next sentence, he denies that Fagan’s “diversity or depth of

experiences were superior,” id. (emphasis added). But, at least based on this record, that

judgment is in the eye of the beholder. Here, the relevant beholder is McKevitt—not Fitzig—

and “[i]t is settled that it is the perception of the decision maker which is relevant, not the self-

assessment of the plaintiff.” Vatel v. Alliance of Auto. Mfrs.,

(D.C. Cir.

2011) (internal quotation marks and citation omitted)). Nor is it the role of the Court or jury to

second-guess an employer’s assessment of which of the competing applicants’ admittedly

diverse and deep experience is “superior.” See Aka,

(explaining that employers

are entitled to make judgment calls respecting comparative qualifications).

In sum, both Fitzig and Fagan were experienced agents with excellent track records. If

there is any discrepancy in their qualifications, it is not obvious, and it falls well short of what is

required to survive summary judgment. Courts typically “will not reexamine governmental

promotion decisions where it appears the Government was faced with a difficult decision

between two qualified candidates, particularly when there is no other evidence that race played a

part in the decision,” Stewart,

, and this Court will not do so here.

36 The story is similar for Vacancy 17195. Recall that this vacancy was for two Assistant to

the Special Agent in Charge positions in the Special Operations Airspace Security Branch and

that Special Agents Desmond and Canfield were selected. Dkt. 46-1 at 79, 80 (Pl.’s Resp. Def.’s

SUMF ¶ 330, 340). Buster and Habersaat, the officials principally involved in the selection

process for these positions, say that they selected Desmond and Canfield over Fitzig because

they believed that Desmond and Canfield had a greater diversity of experience than did Fitzig

and, for that reason, had greater leadership potential. Dkt. 46-1 at 82, 86–89 (Pl.’s Resp. Def.’s

SUMF ¶¶ 350, 352, 371–80).

Fitzig’s attempt to undermine this explanation by a comparison of qualifications is again

unavailing. As to Desmond, Fitzig points to the following evidence to show his superior

qualifications. First, Fitzig had two more years of experience than did Desmond. See id. at 1, 83

(Pl.’s Resp. Def.’s SUMF ¶¶ 2, 355). Second, Fitzig and Desmond both had experience in

operations and protection. Id. at 83 (Pl.’s Resp. Def.’s SUMF ¶ 356); Dkt. 39-8 at 10 (Def.’s

Ex.1). Third, although Desmond had been Whip and Acting Assistant to the Special Agent in

Charge of the countersurveillance unit and Whip of Vice President-elect transition operations,

Fitzig had served as the Airspace Program Whip, had been designated the Acting Assistant to the

Special Agent in charge of that program, and had been both a Group Leader in the New York

field office and a Backup in the Washington field office. Dkt. 46-1 at 83 (Pl.’s Resp. Def.’s

SUMF ¶ 358); id. at 110 (Pl.’s SUMF ¶ 113). Fourth, Fitzig received a higher rating in the

competency of “[t]echnical [p]roficiency” in his 2017 performance review that Desmond

received in his 2016 performance review. Dkt. 39-8 at 2 (Def.’s Ex.1); Dkt. 46-12 at 2 (Pl.’s Ex.

12). Fifth, Fitzig had a higher MPP score. Dkt. 39-7 at 31–32 (Def.’s Ex. 1). Finally, Fitzig

suggests that he had more airspace experience that Desmond, Dkt. 46 at 32, even though

37 Desmond spent three-and-a-half years in the Airspace Security Branch, while Fitzig had only

two years of exposure to the airspace program through his PPD and Special Operations details,

Dkt. 46-1 at 83 (Pl.’s Resp. Def.’s SUMF ¶ 356); Dkt. 42-5 at 2–3 (Fitzig Decl. ¶¶ 4–5).

Taken as a whole, this comparison merely establishes that Habersaat and Buster made a

“judgment call” between two qualified candidates, something the Court has no warrant to

override. Aka,

. Courts “must assume that a reasonable juror who might

disagree with the employer’s decision, but would find the question close, would not usually infer

discrimination on the basis of a comparison of qualifications alone.” Stewart,

(quoting Aka,

). Thus, “[i]n a close case, a reasonable juror would usually

assume that the employer is more capable of assessing the significance of small differences in

the qualification of the candidates.”

This is a paradigmatic close case: Fitzig and Desmond

had similar tenures, similar leadership experience, similar reviews, and similar exposure to the

airspace program. In addition, Desmond had arguably completed a greater variety of

assignments than had Fitzig. Over the course of his career, Fitzig had been a special agent in the

New York field office, completed details on the PPD and in Special Operations, and worked as a

polygrapher in the Washington field office. Dkt. 46-1 at 1–2 (Pl.’s Resp. Def.’s SUMF ¶¶ 3–6).

Desmond, in contrast, had worked in both the Boston and Frankfurt offices and served in the

Vice-Presidential Protective Division, International Programs Division, and the Airspace

Security Branch. Id. at 83 (Pl.’s Resp. Def.’s SUMF ¶ 356). He had also been the Secret

Service’s representative on the FBI’s Joint Terrorism Task Force. Id. (Pl.’s Resp. Def.’s SUMF

¶ 357). Fitzig’s higher MPP score is not nothing. But in light of the record as a whole, it is not

enough to establish that he was markedly more qualified than Desmond.

38 Fitzig compares more favorably to Canfield. He had four more years of experience than

she did, although they had many overlapping experiences: like Fitzig, Canfield had worked in

both the New York and Washington field offices, spent time on the PPD, and served as a Backup

in the Washington office. Id. at 1–2, 84–85 (Pl.’s Resp. Def.’s SUMF ¶¶ 3–5, 363–64, 366).

Canfield had also worked in the White Plains resident office and on the Dignitary Protection

Detail. Id. at 84–85 (Pl.’s Resp. Def.’s SUMF ¶ 364). Still, several other factors seem to favor

Fitzig: he was a Senior Special Agent, and Canfield was not; he, unlike Canfield, had served as a

whip; and he outscored her on the MPP. Dkt. 46 at 31; Dkt. 39-7 at 31–32 (Def.’s Ex. 1). Taken

together, these facts could suggest that Fitzig was somewhat more qualified than Canfield in

certain key respects.

But Fitzig cannot survive summary judgment simply by showing that he was more

qualified than Canfield by some measures, including MPP score and years of experience.

“[C]ourts must be sensitive to the necessary and appropriate realities of hiring processes,” and

“[r]easonable employers . . . do not ordinarily limit their evaluation of applicants to a

mechanistic checkoff of qualifications.” Jackson v. Gonzalez,

(D.C. Cir.

2007) (internal quotation marks omitted). For that reason, an employer “may select a candidate

who on paper is less qualified” based on other factors, and doing so does not merit judicial

suspicion unless the plaintiff is “significantly better qualified.”

(emphasis added) (internal

quotation marks omitted). Here, Fitzig was by no means significantly better qualified than

Canfield. See Aka, 156 F.3d at 1295–96; Stoe, 960 F.3d at 640–41; Hamilton, 666 F.3d at 1352–

53; Lathram, 336 F.3d at 1092. There is also ample evidence that Buster and Habersaat

reasonably assigned value to qualities not captured by tenure and number of titles held. For

example, they considered it a strike against Fitzig that he had spent the last decade as a

39 polygraph examiner, Dkt. 46-1 at 87, 89 (Pl.’s Resp. Def.’s SUMF ¶¶ 374, 378), not an

unreasonable determination given that Vacancy 17195 was for a non-polygraph role, id. at 89–90

(Pl.’s Resp. Def.’s SUMF ¶ 381); Dkt. 40-9 at 1, 4 (Buster Decl. ¶¶ 4, 24–25). Canfield also

received multiple recommendations from her supervisors for the position, whereas Fitzig did not.

Dkt. 46-1 at 86, 89 (Pl.’s Resp. Def.’s SUMF ¶¶ 370, 379); Dkt. 41-2 at 4 (Habersaat Decl.

¶¶ 23–24).7 These are legitimate justifications for selecting Canfield over Fitzig, and Fitzig has

not rebutted them. And even if the Court agreed with Fitzig that Buster and Habersaat erred in

how they weighed the various considerations, that would provide no basis for denying summary

judgment: “Title VII liability cannot rest solely upon a judge’s determination that an employer

misjudged the relative qualifications of admittedly qualified candidates.” Fischbach,

.

Fitzig’s briefing makes no other arguments with respect to Vacancy 17195. However, his

response to the Secret Service’s statement of undisputed material facts and his own statement of

undisputed material facts gestures at several other potential bases for rejecting the Secret

Service’s justifications for promoting Desmond and Canfield. By not even alluding to these

issues in his briefing, Fitzig has forfeited any reliance on them. Courts may deem forfeited any

argument briefed “in conclusory fashion,” POM Wonderful, LLC v. FTC,

(D.C. Cir. 2015) (internal quotation marks omitted), a principle that applies a fortiori to

arguments a party did not brief at all. The Court also notes that Local Rule 7(e) restricts briefs to

45 pages, and parties may not evade this page limit by packing their at-times multi-hundred-page

7 Although one might maintain that Fitzig’s lack of a recommendation from his supervisor was arguably the result of discrimination by Leary, Ciatti, or Loveridge, Fitzig does not press this point, and, in any event, Fitzig was presumably free to ask any of his supervisors, including Alston, to submit a recommendation on his behalf.

40 statements of material facts and responses thereto with arguments they did not deem worthy of

briefing.

But even if the Court were to consider these un-briefed arguments, its conclusion would

remain the same. The Court will not review each argument that it might possibly divine from

Fitzig’s statement of material facts, but, instead, will focus on the most salient. The first such

argument is Fitzig’s suggestion that Canfield and Desmond received preferential treatment in the

selection process from Assistant Special Agent in Charge Don Douglas. Dkt. 46-1 at 90 (Pl.’s

Resp. Def.’s SUMF ¶ 382); id. at 112 (Pl.’s SUMF ¶ 121). As an initial matter, it is not clear

that Douglas had any decisionmaking authority with respect to this vacancy or whether

preferential treatment from him would have made a material difference. Regardless, as to

Desmond, Fitzig merely asserts that Douglas and Desmond had a personal relationship; he does

maintain that Douglas did anything at all to help Desmond secure a promotion. Id. at 90 (Pl.’s

Resp. Def.’s SUMF ¶ 382); id. at 112 (Pl.’s SUMF ¶ 121). There is nothing improper about one

employee having a personal relationship with a more senior employee, and no reasonable jury

could think otherwise. Indeed, if anything, this contention cuts against Fitzig by offering a

theory for Desmond’s advance that, as framed by Fitzig, has nothing to do with Fitzig’s race or

color.

As for Canfield, Fitzig claims that she received an interview from Douglas for the role,

whereas he (Fitzig) did not. Id. at 90 (Pl.’s Resp. Def.’s SUMF ¶ 382); id. at 112 (Pl.’s SUMF

¶ 121). Again, there is no evidence that Douglas had selection authority for this vacancy such

that he would have been in a position to interview candidates. More significantly, Fitzig’s

evidence regarding the alleged interview is simply his own assertion that Canfield confirmed that

she had such an interview when Fitzig asked about it, and his own statements about what several

41 unidentified “others” told him. Dkt. 40-1 at 43 (Fitzig Dep. 169:9–25; 170:1–22); Dkt. 46-5 at 6

(Fitzig Dep. ¶ 16). Fitzig’s testimony about what Canfield and “others” allegedly told him is

hearsay and is not competent at summary judgment. Gleklen v. Dem. Cong. Campaign Comm.,

(D.C. Cir. 2000); Fed. R. Civ. P. 56(c). And even if Canfield had received

an interview for the position and Fitzig had not, that fact would not provide evidence of

discrimination based on Fitzig’s race or color. Fitzig does not suggest that the Secret Service

was required to interview every applicant for a vacancy, and, indeed, interviewing some

candidates but not others is unremarkable.

Fitzig also notes that Desmond had been the subject of a disciplinary action, presumably

to show that Desmond was less qualified for the vacancy than he was. Dkt. 46-1 at 111–12 (Pl.’s

SUMF ¶¶ 117–21). This argument fails as well. Habersaat attests that he was unaware of this

incident, and there is no evidence to the contrary. Dkt. 41-2 at 3 (Habersaat Decl. ¶ 18). When

assessing an employment decision, “it is the perception of the decision maker which is relevant,”

Vatel,

(internal quotation marks omitted), and a decisionmaker cannot be held

responsible for assessing the significance of facts of which he was not aware, see Dodson v. U.S.

Capitol Police, No. 18-cv-2680,

, at *19–18 (D.D.C. Sept. 30, 2022). And

Buster, who was aware of the discipline Desmond had faced, determined that it was a “minor

violation,” which merely involved Desmond “forwarding an email from his work email to his

personal email that contained a link to an internal website.” Dkt. 46-1 at 90 (Pl.’s Resp. Def.’s

SUMF ¶ 383). It therefore did not impact his decision to select Desmond.

That judgment

was reasonable and offers no basis to infer pretext.

Fitzig also argues that Buster and Habersaat’s assessments of the candidates’ relative

airspace-related experience were unsupported and pretextual. This argument too lacks merit.

42 Any such contention with respect to Desmond can readily be rejected because, as already

explained, undisputed evidence shows that Desmond had more airspace experience than Fitzig

did. Dkt. 46-1 at 83 (Pl.’s Resp. Def.’s SUMF ¶ 356); Dkt. 42-5 at 2–3 (Fitzig Decl. ¶¶ 4–5).

With respect to Canfield, Fitzig asserts that she had “no [a]irspace experience whatsoever” as

compared to his two years of such experience, so the Secret Service’s assertion that she was

more qualified in this realm must be pretextual. Dkt. 46-1 at 89 (Pl.’s Resp. Def.’s SUMF

¶ 380); id. at 110 (Pl.’s SUMF ¶ 114). But his evidence for Canfield’s lack of experience is his

own conclusory assertion of the same. In fact, Buster attests in his declaration that “Canfield . . .

had what [he] deemed to be the necessary amount of familiarity with airspace operations, as all

agents assigned to PPD are exposed to airspace operations as they perform protective advances.”

Dkt. 40-9 at 3 (Buster Decl. ¶ 18). Habersaat also noted that Canfield was formerly a licensed

pilot and was therefore knowledgeable about “aviation terminology, flight rules, aircraft

capabilities, and Federal Aviation Administration (FAA) rules and procedures.” Dkt. 41-2 at 4

(Habersaat Decl. ¶ 23); see Vatel,

(noting that “it is the perception of the

decision maker which is relevant” (internal quotation marks and citation omitted)). More

generally, it is undisputed that Buster was not looking for candidates with maximal airspace

expertise, merely “some familiarity with airspace operations in the protective context.” Dkt. 46-

1 at 82 (Pl.’s Resp. Def.’s SUMF ¶ 351). So even if Buster and Habersaat had concluded that

Fitzig had more airspace experience than did Canfield, there is no reason to believe that would

have impacted their selection. Finally, it does not appear that Buster was even aware of the full

extent of Fitzig’s airspace experience: he attests that he did not know what assignments Fitzig

worked on during his eleven-month special operations detail, which, Fitzig contends, accounts

for approximately half of his airspace-related work. Dkt. 40-9 at 3 (Buster Decl. ¶ 19). In a

43 perfect world, Buster might have further explored that question. But a failure to exhaust every

source of information and input in the promotion process is not evidence of discrimination.

In sum, Fitzig has failed to meet his burden of showing that a reasonable jury could find

that the Secret Service’s proffered rationale for failing to promote him to fill Vacancy 17209 or

Vacancy 17195 was pretextual.

B. Retaliation Claim

Fitzig contends that the decisions not to promote him were not only discriminatory but

also retaliatory. Title VII prohibits employers, including federal employers, from retaliating

against employees who make or support discrimination claims. 42 U.S.C. § 2000e–3(a); Baloch

v. Kempthorne,

(D.C. Cir. 2008) (applying § 2000e–3(a) to the federal

sector). The McDonnell Douglas framework, as modified by Brady and Figueroa, applies in the

retaliation context. Gaujacq v. EDF, Inc.,

(D.C. Cir. 2010). To make out a

prima facie case of retaliation, a plaintiff must show that “(1) he engaged in protected activity;

(2) he was subjected to an adverse employment action; and (3) there was a causal link between

the protected activity and the adverse action.” Hamilton,

(internal quotation

marks and citation omitted). As explained above, the Secret Service has come forward with

legitimate reasons for not promoting Fitzig. The Court, accordingly, will not interrogate Fitzig’s

prima facie case and will instead move directly to the pretext analysis. Brady,

.

The Court can quickly dispense with Fitzig’s retaliation claims related to Vacancies

17209 and 17195. As explained above, Fitzig has failed to show that a reasonable jury could

find that the Secret Service did not select him for these vacancies for discriminatory reasons.

The same reasons that justify that holding apply to Fitzig’s retaliation claim, and Fitzig has failed

to present any additional evidence specific to retaliation. So the Court concludes that no

44 reasonable jury could find that the decisions not to select him for these vacancies were

retaliatory.

Before analyzing the FSD vacancies, the Court pauses to note that the conclusion that a

reasonable jury could find that the Secret Service’s stated rationales for not selecting Fitzig for

these vacancies were pretextual and that the real reasons were discriminatory does not compel

the same result for his retaliation claims. To be sure, in both the discrimination and retaliation

contexts, adducing evidence that an employer’s purported reasons for taking an action were

pretextual will, at times, suffice to show that the actual reasons were either retaliatory or

discriminatory, as the case may be. See Woodruff v. Peters,

(D.C. Cir. 2007).

But surviving summary judgment on this basis for one kind of claim does not preclude summary

judgment on the other; it is, of course, possible for an employer to discriminate without

retaliating or to retaliate without discriminating. In cases where both discrimination and

retaliation are alleged, the Court must evaluate the viability of each type of claim based on the

record as a whole.

With that in mind, the Court concludes that summary judgment is appropriate as to

Fitzig’s retaliation claims related to the FSD vacancies. There is no competent evidence that

most of the officials involved in the selection process for these vacancies were aware of Fitzig’s

prior EEO activity at the time of selection. To the contrary, most testified (without rebuttal) that

they were unaware of it. And, of course, a supervisor cannot retaliate against an employee for

engaging in protected EEO activity if the supervisor has no knowledge—directly or indirectly—

of that activity. Alvarado v. Donahoe,

(1st Cir. 2012) (“[T]o successfully

establish a claim of unlawful retaliation there must be, at a minimum, competent evidence that

the alleged retaliators knew of the plaintiff’s protected activity and that a retaliatory motive

45 played a part in the adverse employment actions alleged.” (cleaned up) (internal quotation marks

and citation omitted)); Miller v. Am. Fam. Mut. Ins. Co.,

(7th Cir. 2000)

(same); Goldsmith v. City of Atmore,

(11th Cir. 1993) (same); Williams v.

Rice,

(10th Cir. 1993) (same); see also Iyoha,

. There is also

no evidence that the only official who was aware of Fitzig’s prior protected activity, Breslin,

acted with any purpose to retaliate against him. Thus, although a reasonable jury could doubt the

justifications the Secret Service provided for not selecting Fitzig for the FSD vacancies, it could

not take the further step and conclude that retaliation was the real reason.

Fitzig agrees with the Secret Service that he engaged in only two forms of protected or

arguably protected activity: (1) he was named as a potential witness in a colleague’s EEO case,

although he never participated in the case, and (2) he contacted an EEO counselor in January

2017 and participated in “pre-complaint counseling” on an anonymous basis related to his non-

selection for an earlier vacancy not at issue in this case. Dkt. 46-1 at 3, 5 (Pl.’s Resp. Def.’s

SUMF ¶¶ 14–15, 20). For present purposes, it is undisputed that no one involved in this case

besides Breslin was aware that Fitzig was named as a potential witness in another employee’s

EEO case. Fitzig concedes that he never told anyone about being named in the case, and he

provides no evidence that Jenkins, Loveridge, Leary, or Ciatti were aware that he had been

named, nor does he dispute their testimony that they were not aware he had been named. Id. at 5

(Pl.’s Resp. Def.’s SUMF ¶ 22). Thus, no reasonable jury could find that anyone other than

Breslin was motivated by a desire to retaliate against Fitzig for this activity. See Alvarado,

.

Similarly, Fitzig has not shown that any official other than Breslin who was involved in

the FSD vacancy selection process was aware of his own EEO proceedings. The Secret Service

46 has carried its initial summary judgment burden on this score by providing testimony from

Jenkins, Loveridge, Ciatti, and Leary attesting that they were unaware of Fitzig’s protected

activity at the time they decided who to recommend for the FSD vacancies. Dkt. 40-2 at 49–50

(Loveridge Dep. 192: 20–22; 193:1–22; 194: 1–6); Dkt. 40-7 at 2 (Leary Decl. ¶¶ 13–15); Dkt.

40-8 at 2–3 (Ciatti Decl. ¶¶ 11–12); Dkt. 41-1 at 2–3 (Jenkins Decl. ¶ 15); Dkt. 39-4 at 22–23

(Jenkins EEO Decl. ¶¶ 14, 19). Although Fitzig contends that he has evidence to the contrary, he

offers nothing other than his own speculation.

Fitzig’s account of how his supervisors learned of his protected activity centers on

Jenkins, but it is far too speculative to give rise to a genuine dispute of material fact. Fitzig

maintains that he received a suspicious email allegedly from the Washington Post, which he

reported to the Secret Service. Dkt. 39-3 at 33 (Fitzig Jenkins Rebuttal Decl. ¶ 7). In response,

Secret Service inspectors apparently interviewed him about the incident and subjected him to a

polygraph examination regarding the veracity of his responses.

The inspectors also informed

him that his official work emails had been reviewed as part of the investigation.

Jenkins was

briefed on the result of this investigation, which cleared Fitzig of any improper activity. Id.; Dkt.

46-5 at 2 (Fitzig Decl. ¶ 7).

Based on these facts, Fitzig asks the Court to accept the following causal chain: because

his emails were reviewed in this investigation, and because his email account contained

correspondence related to his EEO activity, the investigators may have read those emails, may

have learned about his EEO activity, and then, may have briefed Jenkins on the topic of Fitzig’s

suspect media contacts and, in the course of doing so, may have told Jenkins that Fitzig had

engaged in EEO activity. Dkt. 39-3 at 33 (Fitzig Jenkins Rebuttal Decl. ¶ 7); see also Dkt. 46-5

at 2 (Fitzig Decl. ¶ 7). This is beyond speculative. Fitzig has presented no evidence that the

47 review of his work emails in fact uncovered his EEO activity nor that in briefing Jenkins on an

unrelated matter, the investigators informed Jenkins as an aside that Fitzig had previously

engaged in informal EEO counseling. Fitzig’s hypothesis that all these events occurred does not

create a genuine dispute of material fact. Anderson, 477 U.S. at 249–50 (explaining that if the

non-moving party’s “evidence is merely colorable, or is not significantly probative, summary

judgment may be granted” (internal citations omitted)).

Fitzig’s support for his contention that Loveridge, Leary, and Ciatti were aware of his

prior protected activity is, if anything, even weaker. He principally relies on the same

suppositions just discussed. Dkt. 46-1 at 94 (Pl.’s SUMF ¶¶ 14–16). Because this theory was

insufficient to create a genuine dispute of material fact even as to Jenkins, it follows that Fitzig’s

theory fails as to Loveridge, Leary, and Ciatti. Fitzig does not maintain that any of these

officials was even briefed on the unrelated investigation, and he fails to explain or even to

hypothesize how the information that he posits was obtained from his emails ever reached them.

Fitzig offers one additional and unrelated piece of evidence with respect to Loveridge,

but that too falls short. He contends that he met with Loveridge to discuss why he did not

receive a particular promotion, and during this conversation “Loveridge was put on notice about

[his] protected activity.” Id. at 49 (Pl.’s Resp. Def.’s SUMF ¶ 201). But his evidence for this

assertion is a declaration in which he recounts this conversation, and the declaration does not say

that he apprised Loveridge of the informal EEO counseling in which he had engaged related to

previous non-selections. Dkt. 39-4 at 1 (Fitzig Loveridge EEO Rebuttal Decl. ¶ 48). There is

therefore no factual dispute about whether Loveridge was aware of Fitzig’s EEO counseling.

That leaves Breslin. And although Breslin was aware of Fitzig’s protected activity, there

is no evidence in the record that he acted with retaliatory animus in not overruling the

48 recommendations of Loveridge, Leary, and Ciatti regarding candidates for the FSD vacancies.

In fact, Fitzig does not even dispute Breslin’s assertion that he did not consider Fitzig’s protected

activity when making his recommendations. Dkt. 46-1 at 47, 58–59, 70 (Pl.’s Resp. Def.’s

SUMF ¶¶ 196, 236, 290); see also Dkt. 39-4 at 40, 42, 44 (Breslin EEO Decl. ¶¶ 19, 33, 47).

Thus because the only official involved in the selection process for the FSD vacancies who was

aware of Fitzig’s protected activity concededly did not consider that activity in making his

recommendations, Fitzig’s retaliation claims with respect to these vacancies cannot go forward.

CONCLUSION

For the foregoing reasons, it is ORDERED that Defendant’s motion for summary

judgment, Dkt. 38, is GRANTED in part and DENIED in part. Summary judgment is DENIED

as to Fitzig’s discrimination claims related to Vacancies 17116, 17157, and 17165 and is

otherwise GRANTED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 24, 2023

49