UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) ESTHER OVIOSU, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-2186 (RBW) ) ALEJANDRO MAYORKAS, in his official ) capacity as Secretary of the United States ) Department of Homeland Security, ) ) Defendant. ) _______________________________________)

MEMORANDUM OPINION

The plaintiff, Esther Oviosu, brings this civil action against the defendant, Alejandro

Mayorkas, in his official capacity as the Secretary of Homeland Security, asserting the following

claims: (1) discrimination based on her race and color in violation of Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, 42 U.S.C. §

1981a, see Complaint (“Compl.”) ¶¶ 53–78, ECF No. 1; and (2) retaliation based on prior Equal

Employment Opportunity (“EEO”) activity in violation of Title VII and the Civil Rights Act of

1991, see id. ¶¶ 79–91. Currently pending before the Court is the defendant’s motion to dismiss,

or in the alternative, for summary judgment, pursuant to Federal Rules of Civil Procedure

12(b)(6) and 56. See Defendant’s Motion to Dismiss, or in the Alternative, for Summary

Judgment (“Def.’s Mot.”) at 1, ECF No. 17. Upon careful consideration of the parties’

submissions,1 the Court concludes for the following reasons that it must deny the defendant’s

motion to dismiss and grant the defendant’s motion for summary judgment.

1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Plaintiff’s Opposition to Defendant’s Motion to Dismiss, or in the Alternative, Motion for I. BACKGROUND

A. Factual Background

The “[p]laintiff was assigned to work in the Administrative Site Visit Verification

Program (‘ASVVP’), Fraud Division, Fraud Detection and National Security Directorate

(‘FDNS’), U.S. Citizenship and Immigration Services (‘USCIS’)” in January 2010. Defendant’s

Statement of Undisputed Material Facts (“Def.’s Facts”) ¶ 1, ECF No. 17; Plaintiff’s Response to

Defendant’s Material Facts Not in Dispute (“Pl.’s Facts Not in Dispute”) ¶ 1, ECF No. 19. At

that time, “Mary Ann Case (‘Case’) was employed as the Branch Chief, ASVVP, Fraud Division

and was [the p]laintiff’s first line supervisor.” Def.’s Facts ¶ 2; Pl.’s Facts Not in Dispute ¶ 1.

“Robert Blackwood (‘Blackwood’) was employed as . . . [the p]laintiff’s second-line supervisor.”

Def.’s Facts ¶ 3; Pl.’s Facts Not in Dispute ¶ 1.

In May 2010, the “[p]laintiff expressed to Blackwood that she believe[d] that she [wa]s

being discriminated [against] on the basis of her race and color” by Case, and “stated that Case

had been treating her differently than ‘non-black’ employees.” Def.’s Facts ¶ 5; Pl.’s Facts Not

in Dispute ¶ 2. The plaintiff delivered a memorandum to Blackwood that alleged, “I feel I am

not included in the [t]eam and I am not in the loop, and I am left out of major ASVVP projects

and tasks which are usually assigned to the [non-]black (white) employees. . . . Case has been

treating me differently from other [non-]black employees.” Def.’s Mot., Exhibit (“Ex.”) E

(Unsigned Memo dated May 17, 2010 (“Letter to Blackwood”)) at 197, ECF No. 17-5; Pl.’s

Opp’n, Ex. 2 (Plaintiff Letter to Blackwood (“Letter to Blackwood”)) at 197, ECF No. 19-2; see

Plaintiff’s Additional Material Facts Not in Dispute (“Pl.’s Additional Facts”) ¶ 3, ECF No. 19;

Defendant’s Response to Plaintiff’s Cross-Statement of Undisputed Material Facts (“Def.’s

Summary Judgment (“Pl.’s Opp’n”), ECF No. 19; and (2) the Reply in Support of Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Reply”), ECF No. 22.

2 Resp. to Pl.’s Facts”) ¶ 3, ECF No. 22. In her memorandum, the plaintiff also stated that on one

occasion Case told her “don’t talk during this meeting[,]” Def.’s Mot., Ex. E (Letter to

Blackwood) at 197; Pl.’s Opp’n, Ex. 2 (Letter to Blackwood) at 197, and on a separate occasion,

the plaintiff “asked if a statement made about her attending a meeting due to another employee’s

absence was about color?” Def.’s Facts ¶ 5; Pl.’s Facts Not in Dispute ¶ 2.

Between May 17, 2010, and May 27, 2010, Blackwood and Case met and discussed the

plaintiff’s complaint about Case. See Def.’s Resp. to Pl.’s Facts ¶ 4 (“Case does not recall

whether she actually received the memo, whether it was read to her by [ ] Blackwood, or whether

they just discussed [the p]laintiff’s general complaint about Case.”); Pl.’s Additional Facts ¶ 4.

And, “[i]n May 2010, [the p]laintiff was put under the supervision of Supervisory Immigration

Officer, Shari Golston[,] in a different branch within the Fraud Division.” Def.’s Facts ¶ 6; see

Plaintiff’s Claim of Disputed Material Facts (“Pl.’s Disputed Facts”) ¶ 2.

Approximately five years later, “[i]n September 2015, [the p]laintiff was hired as a

Supervisory Immigration Officer, Administrative Site Visit and Verification Branch, Fraud

Division, FDNS[,]” Def.’s Facts ¶ 7; Pl.’s Facts Not in Dispute ¶ 3, and “was the first-line

supervisor for four employees[,]” Def.’s Facts ¶ 17; Pl.’s Facts Not in Dispute ¶ 4. “During the

time [the p]laintiff was employed as a Supervisory Immigration Officer, from approximately

September 8, 2015[,] through August 26, 2016, she was in a probationary status.” Def.’s Facts ¶

9; Pl.’s Facts Not in Dispute ¶ 3. “James Zenny (‘Zenny’) . . . was [the p]laintiff’s first-line

supervisor[,]” Def.’s Facts ¶ 10; Pl.’s Facts Not in Dispute ¶ 3, and Case became the plaintiff’s

second-line supervisor when she “assume[d] the role of Chief, Fraud Division, FDNS” on March

31, 2016. Def.’s Facts ¶ 18; Pl.’s Facts Not in Dispute ¶ 4.

3 “On or about April 29, 2016, Zenny met with [the p]laintiff and issued [the p]laintiff a

mid-cycle review. The mid-year [review] note[d] the following issue: In the beginning[,] she

was reluctant to make decisions possibly in fear of making a mistake, this behavior has

improved.” Def.’s Facts ¶ 22; Pl.’s Facts Not in Dispute ¶ 5. The review also noted that the

plaintiff was “keenly aware of her role and responsibilities as a first[-]line supervisor and

communicate[d] to management her concerns and progression in meeting [its] priorities.” Pl.’s

Additional Facts ¶ 10; Def.’s Resp. to Pl.’s Facts ¶ 10. It also noted that “[s]he [wa]s balanced in

providing her expertise and clarifying issues when there have been disagreements among fellow

team members.” Pl.’s Additional Facts ¶ 11; Def.’s Resp. to Pl.’s Facts ¶ 11. However,

“[d]uring [the p]laintiff’s probationary period, [another employee, Krystal Hodges,] expressed to

Zenny her concerns regarding [the p]laintiff’s ownership of the ASVVP program.” Def.’s Facts

¶ 33; Pl.’s Facts Not in Dispute ¶ 7.

“On August 26, 2016, [ ] Case removed [the p]laintiff from the Supervisory Immigration

Officer position and reassigned [her] effective September 1, 2016[,]” without Zenny’s input

while Zenny was away at training. Pl.’s Additional Facts ¶¶ 17, 22, 25–26; Def.’s Resp. to Pl.’s

Facts ¶¶ 17, 22, 25. The removal letter “stated that [the p]laintiff was being removed from the

Supervisory position because [the p]laintiff had allegedly failed to ‘promote collaboration and

cooperation among peers and subordinates while guiding[,] motivating[,] and stimulating

positive responses.’” Pl.’s Additional Facts ¶ 29 (quoting Pl.’s Opp’n, Ex. 6 (August 26, 2016

Removal Letter) at 239, ECF No. 19-6); Def.’s Resp. to Pl.’s Facts ¶ 29. It also stated that the

plaintiff missed a deadline for a project, only worked closely with one of her four staff members,

turned in important assignments shortly before they were due, and “sought ‘guidance on menial

tasks associated with assignments such as review and editing of the agenda items or the bi-

4 weekly ASVVP teleconference with the field in editing on the ASVVP weekly report.’” Pl.’s

Additional Facts ¶¶ 31, 33, 35, 37, 39; Def.’s Resp. to Pl.’s Facts ¶¶ 31, 33, 35, 37, 39. While

the removal letter explains several reasons for the plaintiff’s demotion, Pl.’s Opp’n, Ex. 6

(August 26, 2016 Removal Letter) at 239–40, the plaintiff responded that Case could not identify

“the date of the deadline that was allegedly missed[,]” Pl.’s Additional Facts ¶ 31, that “Case

testified that at times having one person work on a topic or tasker is the best way to manage[,]”

id. at ¶ 34, that Case could not recall the deadlines for submissions that were turned in shortly

before the deadline, see id. at ¶¶ 23, 36, 38, and that Case did not provide emails showing that

the plaintiff sought guidance on menial tasks, see id. at ¶ 40.

After the plaintiff was removed from her position, on December 6, 2016, she received her

2016 Fiscal Year Performance Appraisal in which she “received an Unacceptable in Competency

Number 7 ‘Leadership’ and in Goal Number 1 ‘Leading People in a Quality Work

Environment.’” Pl.’s Additional Facts ¶¶ 60–61; Def.’s Resp. to Pl.’s Facts ¶¶ 60–61.

B. Procedural Background

The plaintiff filed her complaint in this case on August 10, 2020. See Compl. at 1. On

December 23, 2021, the defendant filed his motion to dismiss or, in the alternative, for summary

judgment. See Def.’s Mot. at 1. In response, the plaintiff filed her opposition to the defendant’s

motion on March 7, 2022, see Pl.’s Opp’n at 1, and the defendant filed his reply in support of his

motion on May 4, 2022, see Def.’s Reply at 1.

II. STANDARD OF REVIEW

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

“A motion to dismiss pursuant to [Federal Rule of Civil Procedure 12(b)(6)] ‘must be

made before pleading if a responsive pleading is allowed.’” Lewis v. Schafer,

(D.D.C. 2008) (quoting Fed. R. Civ. P. 12(b)). In other words, “a ‘defendant filing a pre-

answer motion under Federal Rule of Civil Procedure 12(b) must do so before his answer is

due.’”

(quoting McMillian v. District of Columbia,

(D.D.C. 2005)).

Because the defendant previously filed an answer on December 7, 2020, see Answer, ECF No. 7,

“he is precluded from now filing a motion to dismiss pursuant to [Federal Rule of Civil of

Procedure 12(b)(6)].” Lewis,

. Therefore, the defendant’s motion to

dismiss “pursuant to Rule 12(b)(6) is denied and none of the [Rule 12(b)(6)] arguments are

addressed on the merits.”

Accordingly, the Court will only consider the defendant’s motion

for summary judgment.

B. Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56

A court may grant a Rule 56 motion for summary judgment only if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the

governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer,

(D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson,

.

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for

summary judgment[.]”

The movant has the burden of demonstrating the absence of a

genuine issue of material fact and that the non-moving party “fail[ed] to make a showing

6 sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

(1986).

In responding to a motion for summary judgment, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). Accordingly, unsupported

allegations or conclusory statements are not sufficient to defeat summary judgment, see Ass’n of

Flight Attendants-CWA v. U.S. Dep’t of Transp.,

, 465–66 (D.C. Cir. 2009); Pub.

Citizen Health Rsch. Grp. v. FDA,

, 908 (D.C. Cir. 1999) (“[C]onclusory

allegations unsupported by factual data will not create a triable issue of fact.” (citations and

internal quotation marks omitted)). And the non-moving party “must set forth specific facts

showing that there [are] genuine issue[s] for trial,” Anderson,

. Therefore, “[t]he

mere existence of a scintilla of evidence in support of the [non-moving party’s] position [is]

insufficient” to withstand a summary judgment motion; rather, “there must be [some] evidence

on which the jury could reasonably find for the [non-movant].”

.

When a non-moving party supports their position via affidavit or declaration, “[it] must

set forth . . . specific facts[,]” Ass’n of Flight Attendants-CWA,

(internal

quotation marks omitted), pursuant to Rule 56(e), “that is, it ‘must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant is

competent to testify on the matters stated,’”

(quoting Fed. R. Civ. P. 56(e)(1)). “Although, as

a rule, statements made by the party opposing a motion for summary judgment must be accepted

as true for the purpose of ruling on that motion, some statements are so conclusory as to come

within an exception to that rule.” Greene v. Dalton,

, 675 (D.C. Cir. 1999); see also

Dist. Intown Props. Ltd. P’ship v. District of Columbia,

(D.C. Cir. 1999)

7 (“[T]he court must assume the truth of all statements proffered by the non-movant except for

conclusory allegations lacking any factual basis in the record.” (emphasis added)). The plaintiff

“must support [her] allegations . . . with facts in the record; a mere unsubstantiated allegation . . .

creates no genuine issue of fact and will not withstand summary judgment[.]” Harding v. Gray,

(D.C. Cir. 1993).

In the employment context, “[a]s employers rarely maintain records directly evidencing

discrimination, ‘an added measure of rigor, or caution, is appropriate in applying this standard to

motions for summary judgment in employment discrimination cases.’” Woodruff v. Peters,

(D.C. Cir. 2007) (quoting Aka v. Wash. Hosp. Ctr.,

, 879–80 (D.C.

Cir. 1997)).

III. ANALYSIS

The defendant argues that he is entitled to summary judgment on the plaintiff’s

discrimination and retaliation claims because “[t]he agency had legitimate, non-discriminatory[,]

and non-retaliatory reasons for its decisions, and [the] plaintiff cannot identify any evidence from

which a jury could conclude that the reasons were pretext.” Def.’s Mot. at 17. More

specifically, the defendant claims that “[t]he [a]gency removed [the p]laintiff due to her

unacceptable performance as a supervisor and not because of her race, [ ] color[,]” or prior EEO

activity. See

Furthermore, the defendant asserts that the agency’s evaluation “is supported

by legitimate, and ample, evidence in the record.”

In response, the plaintiff argues that she

“has produced sufficient evidence for a reasonable jury to find the defendant’s asserted non-

discriminatory reason was pretext, and that there was intentional discrimination on the basis of

[the] plaintiff’s race.” Pl.’s Opp’n at 24. Moreover, the plaintiff asserts that she “has established

that the [alleged adverse actions were] reprisal for [her] prior EEO activity.” Id. at 30. The

8 Court will first determine whether the defendant is entitled to summary judgment on the

plaintiff’s discrimination claim, before turning to the retaliation claim.

A. Whether the Defendant is Entitled to Summary Judgment on the Plaintiff’s Discrimination Claim

“Title VII of the Civil Rights Act, as amended, provides that all ‘personnel actions

affecting employees or applicants for employment’ in Executive agencies ‘shall be made free

from any discrimination based on race.’” Jackson v. Gonzales,

(D.C. Cir.

2007) (quoting 42 U.S.C. § 2000e-16(a)). “Where, as here, the record contains no direct

evidence that the adverse employment action of which the plaintiff complains was caused by

prohibited discrimination, [the Court] turn[s] to the burden-shifting framework of McDonnell

Douglas Corp. v. Green,

, 802–805 (1973), to analyze the claim.” Jackson,

.

“Under that framework, ‘the plaintiff must [first] establish a prima facie case of

discrimination.’” Lathram v. Snow,

, 1088 (D.C. Cir. 2003) (alteration in original)

(quoting Reeves v. Sanderson Plumbing Prod., Inc.,

(2000)). Once a prima

facie case is established, then “[t]he burden [ ] must shift to the employer to articulate some

legitimate, nondiscriminatory reason” for its actions. McDonnell Douglas,

. If

the defendant provides legitimate, non-discriminatory reasons for the adverse employment

actions at issue, “the question [of] whether [the plaintiff] actually made out a prima facie case is

‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the picture.’” Brady v. Off. of the

Sergeant at Arms,

(D.C. Cir. 2008) (third alteration in original) (quoting St.

Mary's Honor Ctr. v. Hicks,

(1993)). The plaintiff must then prove that

the defendant’s proffered reason was a pretext for discrimination, see McDonnell Douglas,

, and produce “sufficient evidence for a reasonable jury to find that the employer’s

9 asserted nondiscriminatory . . . reason was not the actual reason and that the employer

intentionally discriminated . . . against the employee[,]” Walker v. Johnson,

(D.C. Cir. 2015).

“Because the Secretary has asserted non-discriminatory justifications for [the adverse

employment actions at issue—viz., the plaintiff’s removal from her supervisory position and the

plaintiff receiving an “Unacceptable” rating in her performance review—], the Court will not

consider whether [the plaintiff] made out a prima facie case of employment discrimination but

will instead proceed [directly] to assessing the Secretary’s rationales and [the plaintiff’s]

evidence of pretext.” Stephens v. Yellen, No. 17-cv-1252 (DLF),

, at *5

(D.D.C. Nov. 23, 2021).

1. Whether the Defendant Has Provided Legitimate Non-Discriminatory Reasons for the Adverse Employment Actions at Issue

The defendant argues that the “agency had legitimate, non-discriminatory[,] and non-

retaliatory reasons for its decisions[.]” Def.’s Mot. at 17. More specifically, the defendant

claims that:

The [a]gency removed [the p]laintiff due to her unacceptable performance as a supervisor and not because of her race, or color. [The p]laintiff was removed due to her inability to collaborate, cooperate, and guide subordinates, untimeliness in meeting goals and deadlines, seeking guidance on menial tasks, inability to apply tools, resource, and training effectively, and the lack of sound judgment and inadequate supervisory methods.

The defendant further states that the “[p]laintiff’s performance evaluation is supported by

legitimate, and ample, evidence in the record.” 2

2 The plaintiff does not contest that “the [a]gency proffer[ed] alleged legitimate non-discriminatory reasons for its removal of [the p]laintiff from her [s]upervisory position[.]” Pl.’s Opp’n at 27. Instead, the plaintiff asserts that the defendant’s asserted reasons “are merely pretext for discrimination[,]”

an assertion which the Court will address infra Section III.A.2.

10 “Step two of the McDonnell Douglas analysis requires an employer to ‘come forward

with a legitimate reason for the challenged action.’” Stephens,

, at *5

(quoting Iyoha v. Architect of the Capitol,

(D.C. Cir. 2019)). “The D.C.

Circuit has recently emphasized four factors that should be ‘paramount in the analysis’ of

whether an employer has met this burden.”

(quoting Figueroa v. Pompeo,

(D.C. Cir. 2019)). “Namely, at step two: (1) the employer must produce evidence that

would be admissible at trial for a finder of fact; (2) ‘the factfinder, if it believed the evidence,

must reasonably be able to find that the employer’s action was motivated by a nondiscriminatory

reason’; (3) the employer’s justification must be ‘facially credible in light of the proffered

evidence’; and (4) the employer must provide a ‘clear and reasonably specific explanation’ for its

action that is ‘articulated with some specificity.’”

(quoting Figueroa, 923 F.3d at 1087–88).

Here, the defendant contends that the plaintiff received her negative performance review

and was removed from her supervisory position because of her “failure to satisfactorily perform

her duties and responsibilities as a supervisor.” Def.’s Mot. at 20. More specifically, in the

agency’s August 26, 2016 removal letter, the defendant explained that it removed the plaintiff

from her position because (1) she “failed to ‘promote collaboration and cooperation among peers

and subordinates while guiding motivating and stimulating positive responses’”; (2) missed

deadlines; (3) only worked closely with one of her four staff members; (4) turned in large

assignments shortly before they were due; and (5) “sought ‘guidance on menial tasks associated

with assignments such as review and editing of the agenda items or the bi-weekly ASVVP

teleconference with the field in editing on the ASVVP weekly report.’” Pl.’s Additional Facts ¶¶

29, 31, 33, 35, 37, 39 (citing Pl.’s Opp’n, Ex. 6 (August 26, 2016 Removal Letter) at 239–40);

Def.’s Resp. to Pl.’s Facts ¶¶ 29, 31, 33, 35, 37, 39.

11 “The Court will consider [this] proffered evidence because [the plaintiff] neither contests

nor objects to its admissibility; thus, the first Figueroa factor is satisfied.” Stephens,

, at *5. The Court is also convinced that the second Figueroa factor is satisfied, as the

defendant’s “evidence would allow a jury to reasonably conclude that the [defendant] had neutral

reasons, unrelated to race or [color], to take steps to terminate [the plaintiff’s supervisory

position]. Dissatisfaction with a plaintiff’s performance is a legitimate and non-discriminatory

reason for an adverse action.” Id.; see Royall v. Nat’l Ass’n of Letter Carriers,

(D.C. Cir. 2008) (affirming the district court’s holding that an employer stated a legitimate,

non-discriminatory reason for an adverse employment action where the employee “understood

the duties and responsibilities of the position . . . and simply failed to perform them in a

satisfactory manner” (quoting Royall v. Nat’l Ass’n of Letter Carriers,

(D.D.C. 2007)); see also Hussain v. Gutierrez,

(D.D.C. 2008) (holding that

“failure[] to perform routine duties in a timely fashion” constitutes “a legitimate non-

discriminatory reason for terminating” an employee); Carter v. Greenspan,

(D.D.C. 2004) (“Filing a Title VII action . . . is meant to shield employees from the

discriminatory actions of their employers, not to excuse an employee’s poor job performance,

impudence, or subordination.”). In other words, the defendant “has come forward with a

legitimate non-discriminatory reason for the employment action that it took: it [demoted the]

plaintiff based on her job performance.” Giles v. Transit Emps. Credit Union,

(D.D.C. 2014).

Furthermore, the record evidence proffered by the defendant supports the agency’s stated

reasons for giving the plaintiff a negative performance review and removing her from her

supervisory position. For example, the defendant provided affidavits from (1) Jimmy Zenny, the

12 plaintiff’s first-line supervisor; (2) Mary Ann Case, the plaintiff’s second-line supervisor; and (3)

Ahmed Ztaoui, one of the plaintiff’s subordinates, who all allege that the plaintiff failed to

satisfactorily perform her duties and responsibilities as a supervisor. See, e.g., Def.’s Mot., Ex.

C (Case Aff.) at 5, ECF No. 19-3 (“The primary issue with [the plaintiff] was her leadership.

She relied on one team member, Ahmed Ztaoui, for most of the work done by the team. After

[the plaintiff] was reassigned, [ ] Ztaoui confirmed that he felt like he was the supervisor when

he worked for [the plaintiff]. I got many complaints from her staff that they were not sure what

the expectations were and that they felt out of the loop.”);

Ex. G (Zenny Aff.) at 3, ECF No.

19-4 (“[The plaintiff’s] performance was shaky. She had trouble in three areas. She had

problems in decision making[,] . . . knowing her program[,] . . . [and] using all her team

members.”);

Ex. L (Ztaoui Aff.) at 3, ECF No. 19-8 (“[The plaintiff] had issues effectively

engaging all the team members. . . . She did not take into consideration the shortcomings of the

staff and felt that all team members should be able to focus on learning the program to

effectively contribute to the daily tasks and assignments.”). “If a factfinder credited this

evidence, it could reasonably find that the [defendant’s] action[s were] motivated by

nondiscriminatory reasons—[the plaintiff’s] difficulties in managing her department and

communicating with her team—that rendered her unfit for her [supervisory] position. And the

proffered reasons are facially credible given the record evidence.” Stephens,

,

at *6 (citation omitted). The fourth and final Figueroa factor is also satisfied, as the defendant’s

explanation is “clear and reasonably specific.” Figueroa,

. Accordingly, the

Court must conclude that the defendant has articulated legitimate non-discriminatory reasons for

the adverse employment actions at issue.

13 2. Whether the Plaintiff Has Provided Sufficient Evidence from Which a Reasonable Jury Could Conclude that the Identified Reasons Were Pretext for Discrimination

The plaintiff claims that “[a]lthough the [defendant] proffers alleged legitimate non-

discriminatory reasons for its removal of [the p]laintiff from her [s]upervisory position and the

[negative performance review], . . . those non-discriminatory reasons for removing [the p]laintiff

[ ] are merely pretext for discrimination.” Pl.’s Opp’n at 27. The plaintiff makes two arguments

in support of this contention. First, she alleges that the August 26, 2016 letter was “fabricated”

by Case, as evidenced by the fact that “Case could not elaborate on any of the alleged

deficiencies” in her 2021 deposition. Id. at 26. Second, the plaintiff asserts that “prior to being

removed from the [s]upervisory position, [she] had not received any notice of deficient

performance[,]” which “supports an inference that intentional discrimination was a motivating

factor in [her] removal” and the negative performance review. Id. at 25–27.

“Once the employer has articulated a non-discriminatory explanation for its action, . . .

the issue is not ‘the correctness or desirability of [the] reasons offered . . .[, but] whether the

employer honestly believes in the reasons it offers.’” Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996) (alterations and second omission in original) (quoting McCoy v.

WGN Cont’l Broad. Co.,

(7th Cir. 1992)). The Court “may not ‘second-guess

an employer’s personnel decision absent demonstrably discriminatory motive.’”

(quoting

Milton v. Weinberger,

(D.C. Cir. 1982)). Rather, the plaintiff must produce

“sufficient evidence for a reasonable jury to find that the employer’s legitimate, non-

discriminatory reason was not the actual reason and that the employer intentionally discriminated

against [her] on the basis of race.” Brady,

. Indeed, an employer’s proffered

“reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the

14 reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr.,

.

Here, the Court concludes that neither of the plaintiff’s pretext arguments are availing.

With respect to the plaintiff’s first argument, the Court is unsurprised that Case was unable to

recall specific details regarding the plaintiff’s termination, given that the deposition occurred

nearly five years after the events in question. See Def.’s Mot., Ex. Z (Deposition of Mary Ann

Case, dated October 18, 2021). More importantly, as discussed supra Section III.A.1, the record

is replete with the affidavits of other individuals who similarly alleged that the plaintiff failed to

satisfactorily perform her duties and responsibilities as a supervisor. See, e.g., Def.’s Mot., Ex.

G (Zenny Aff.) at 3 (“[The plaintiff’s] performance was shaky. She had trouble in three areas.

She had problems in decision making[,] . . . [s]he had trouble in the area of knowing her

program[,] [and s]he had trouble using all her team members.”); id., Ex. L (Ztaoui Aff.) at 3

(“[The plaintiff] has issues effectively engaging all the team members. . . . She did not take in

consideration the shortcomings of the staff and felt that all team members should be able to focus

on learning the program to effectively contribute to the daily tasks and assignments.”).

Accordingly, any suggestion that Case fabricated the reasons for the plaintiff’s removal is

undermined by the fact that the record corroborates the deficiencies listed in the evaluation and

removal letter.

The plaintiff’s second argument fares no better. As an initial matter, the plaintiff fails to

cite any authority for the proposition that the defendant was required to provide her notice of her

alleged deficiencies before removing her from the supervisory position. Furthermore, the record

indicates that the agency did, in fact, inform the plaintiff of her weaknesses and performance

issues during her mid-cycle review. See Pl.’s Opp’n, Ex. 10 (Mid-Cycle Review, dated April 29,

15 2016) (stating that the plaintiff was initially “reluctant to make decisions in fear of making a

mistake”); Def.’s Mot., Ex. G (Zenny Aff.) at 3 (“I met with [the plaintiff] on April 29, 2016, for

her mid-year review. I told her about her problems in the areas of decision-making, program

knowledge, and using all of her team members.”). Furthermore, Case attests that she also “gave

[the plaintiff] both positive and negative feedback” throughout her probationary period. Def.’s

Mot., Ex. C (Case Aff.) at 6. Therefore, based on the evidence before it, the Court must

conclude that the defendant provided the plaintiff with sufficient notice of her performance

issues before removing her from the supervisory position, even though the plaintiff has failed to

provide any authority for the position that she was entitled to receive such notice.

Accordingly, for the foregoing reasons, the Court finds that “a reasonable jury could not

conclude that the [adverse actions were] a result of discrimination, and [the Court must]

therefore [ ] grant [ ] summary judgment” to the defendant on the plaintiff’s discrimination

claims. Lathram, 336 F.3d at 1089.

B. Whether the Defendant is Entitled to Summary Judgment on the Plaintiff’s Retaliation Claim

The Court next considers whether the defendant is entitled to summary judgment on the

plaintiff’s retaliation claim. “To make out a prima facie case of retaliation, a plaintiff must show

that ‘(1) [she] engaged in protected activity; (2) [she] was subjected to an adverse employment

action; and (3) there was a causal link between the protected activity and the adverse action.’”

Hamilton v. Geithner,

(D.C. Cir. 2012) (quoting Woodruff,

). “If the plaintiff succeeds, the burden of production shifts to the defendant, who must

articulate some legitimate, non-retaliatory reason for the adverse action, but the ultimate burden

of persuasion remains always with the plaintiff.” Woodruff,

(internal citations

omitted). “Once the defendant proffers the requisite explanation, the plaintiff must ‘prove by a

16 preponderance of the evidence that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for [retaliation].’”

(alteration in original) (quoting Reeves v.

Sanderson Plumbing Prods., Inc.,

(2000)).

This Court need not address whether the plaintiff has established a prima facie case

because “the question whether the employee made out a prima facie case . . . is almost always

irrelevant[.] [ ] [B]y the time the district court considers an employer's motion for summary

judgment . . . the employer ordinarily will have asserted a legitimate, non-discriminatory reason

for the challenged decision.” Jones v. Bernanke,

(D.C. Cir. 2009) (second

alteration in original) (internal quotation marks removed) (quoting Brady,

).

Indeed, “[n]ot only is the prima facie case irrelevant at this point, but ‘[the Court] need not—and

should not—decide whether the plaintiff actually made out a prima facie cause under McDonnell

Douglas.’”

Accordingly, the Court will “proceed to assessing the Secretary’s rationales [for

the adverse actions at issue] and [the plaintiff’s] evidence of pretext.’” Stephens,

, at *5.

1. Whether the Defendant Has Provided Legitimate Non-Retaliatory Reasons for the Adverse Employment Actions at Issue

As discussed supra Section III.A.1, the defendant provided a plethora of evidence

supporting the agency’s asserted non-retaliatory justification for removing the plaintiff from her

supervisory position—viz., the plaintiff’s “failure to satisfactorily perform her duties and

responsibilities as a supervisor,” Def.’s Mot. at 20. More specifically, the defendant articulated a

comprehensive list of reasons in its August 26, 2016 removal letter, justifying the plaintiff’s

“unacceptable” performance rating and removal from her supervisory position. As noted earlier,

the defendant explained that it removed the plaintiff from her position because (1) she “failed to

‘promote collaboration and cooperation among peers and subordinates while guiding motivating

17 and stimulating positive responses[,]’” (2) missed deadlines, (3) only worked closely with one of

her four staff members, (4) turned in large assignments shortly before they were due, and (5)

“sought guidance on menial tasks associated with assignments such as review and editing of the

agenda items or the bi-weekly ASVVP teleconference with the field in editing on the ASVVP

weekly report.” Pl.’s Additional Facts ¶¶ 29, 31, 33, 35, 37, 39 (citing Pl.’s Opp’n, Ex. 6

(August 26, 2016 Removal Letter) at 239–40); Def.’s Resp. to Pl.’s Facts ¶¶ 29, 31, 33, 35, 37,

39. And, as also noted earlier, the defendant provided affidavits from (1) Jimmy Zenny, the

plaintiff’s first-line supervisor; (2) Mary Ann Case, the plaintiff’s second-line supervisor; and (3)

Ahmed Ztaoui, one of the plaintiff’s subordinates, who all alleged that the plaintiff failed to

satisfactorily perform her duties and responsibilities as a supervisor. See Def.’s Mot., Ex. G

(Zenny Aff.) at 3 (“[The plaintiff’s] performance was shaky. She had trouble in three areas. She

had problems in decision making[,] . . . [s]he had trouble in the area of knowing her program[,]

[and s]he had trouble using all her team members.”); id., Ex. C (Case Aff.) at 5 (“The primary

issue with [the plaintiff] was her leadership. She relied on one team member, Ahmed Ztaoui, for

most of the work done by the team. After [the plaintiff] was reassigned, [ ] Ztaoui confirmed

that he felt like he was the supervisor when he worked for [the plaintiff]. I got many complaints

from her staff that they were not sure what the expectations were and they felt out of the loop.”);

id., Ex. L (Ztaoui Aff.) at 3 (“[The plaintiff] has issues effectively engaging all the team

members. . . . She did not take into consideration the shortcomings of the staff and felt that all

team members should be able to focus on learning the program to effectively contribute to the

daily tasks and assignments.”).

Accordingly, for the reasons already discussed, the Court must conclude that the

defendant has satisfied the four Figueroa factors and, thus, articulated legitimate non-retaliatory

18 reasons for the adverse actions at issue. See Stephens,

, at *5 (holding that at

step two of the McDonnell Douglas analysis “(1) the employer must produce evidence that

would be admissible at trial for a finder of fact; (2) ‘the factfinder, if it believed the evidence,

must reasonably be able to find that the employer’s action was motivated by a nondiscriminatory

reason’; (3) the employer’s justification must be ‘facially credible in light of the proffered

evidence’; and (4) the employer must provide a ‘clear and reasonably specific explanation’ for its

action that is ‘articulated with some specificity.’” (quoting Figueroa, 923 F.3d at 1087–88)).

2. Whether the Plaintiff Has Provided Sufficient Evidence From Which a Reasonable Jury Could Conclude that the Identified Reasons Were Pretext for Retaliation

The plaintiff asserts that the defendant’s proffered reasons for removing the plaintiff from

her supervisory position and issuing a negative performance review were merely pretext for

retaliation. See Pl.’s Opp’n at 34. More specifically, the plaintiff claims that the adverse actions

at issue were taken “in retaliation for [the p]laintiff engaging in [p]rior EEO [a]ctivity when [(1)]

in May 2010, she communicated to [ ] Blackwood that she believed [ ] Case was discriminating

against her due to her race; and [(2) o]n September 16, 2016, [the p]laintiff filed an [i]nformal

EEO Complaint, alleging that she was discriminated against by [ ] Case, based on her race, color,

and for prior EEO activity, when [ ] Case removed her from the Supervisory Immigration Officer

position on August 26, 2016.” Id. at 30. In support of her contention, the plaintiff reiterates the

same arguments she raised in support of her discrimination claim: (1) “the allegations made by []

Case of [the p]laintiff’s deficient performance in the August 26, 2016 Removal Letter were

contradicted by [ ] Case in her deposition”; and (2) the plaintiff was not “notified of any deficient

performance, and only learned there were issues with her performance when she received the

removal letter.” Id. at 35.

19 The Court already rejected these arguments supra Section III.A.2, and sees no reason to

give them additional credence in the retaliation context. Accordingly, for the reasons already

discussed above, the Court finds that “a reasonable jury could not conclude that the [adverse

actions were] a result of [retaliation], and [the Court must] therefore [ ] grant [ ] summary

judgment” to the defendant on the plaintiff’s retaliation claim. Lathram, 336 F.3d at 1089. 3

CONCLUSION

For the foregoing reasons, the Court concludes that it must deny the defendant’s motion

to dismiss and grant the defendant’s motion for summary judgment.

SO ORDERED this 15th day of July, 2024. 4

REGGIE B. WALTON United States District Judge

3 To the extent the plaintiff alleges a claim under the Federal Tort Claims Act, see Compl. ¶ 7 (alleging that the defendant “is liable pursuant to the doctrine of Respondeat Superior”), that claim must be dismissed “because Title VII ‘provides the exclusive judicial remedy for claims of discrimination in federal employment.’” Bergbauer v. Mabus,

(D.D.C. 2011) (quoting Brown v. Gen. Servs. Admin.,

(1976)). 4 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

20