UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD YOUNG, : : Plaintiff, : Civil Action No.: 19-2144 (RC) : v. : Re Document No.: 62 : SONNY PERDUE, : Secretary, United States Department : of Agriculture : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Richard Young was discharged from his job at the United States Department of

Agriculture’s (“USDA”) Foreign Agriculture Service (“FAS”) after the agency withdrew his

interim security clearance. He then filed this action claiming employment discrimination,

retaliation, and a hostile work environment in violation of Title VII of the Civil Rights Act of

1964. The USDA now moves for summary judgment on all three claims, asserting that there is

no genuine dispute of material fact for trial. The Court agrees and accordingly grants the

agency’s motion for summary judgment.

II. BACKGROUND

A. Factual Background

1. Plaintiff’s Removal from USDA

The USDA hired Plaintiff—who is a heterosexual, African American man—in January

2015 as the Chief Information Officer for the FAS. Def.’s Statement of Material Facts (“Def.’s Statement”) ¶ 1, ECF No. 62-2. The description of the position indicates that it requires a

clearance. Ex. A to Def.’s Mot. at 80, ECF No. 62-3. On February 10, 2016, the USDA granted

Plaintiff an interim security clearance while final adjudication remained pending. Def.’s

Statement ¶¶ 4–8.

In late 2016, the USDA Office of Inspector General (“OIG”) received two complaints

against Plaintiff related to the agency’s ethics and conduct regulations. Id. ¶¶ 9–10. In

November 2016, a Personnel Misconduct Investigator began reviewing Plaintiff’s email

communications on USDA systems, which he found to include instructions for contractors to

access and review invoices on the Invoice Processing Platform, which the U.S. Treasury

provides to agencies to “process and pay invoices under business contracts the government

enters into for the procurement of goods and services.” Ex. J to Def.’s Mot. at 5, ECF No. 62-

12; see also id. at 10. The investigator additionally discovered emails instructing contractor staff

to assist Plaintiff with personal business, as well as details of unauthorized speaking events on

behalf of the USDA. Id. at 3, 9–10. The investigator also found an April 2016 civil judgment

against Young for approximately $232,000—among other debts. Id. at 11.

On March 2, 2017, the FAS informed the USDA’s Personnel and Document Security

Division that it was investigating Plaintiff for misconduct allegations, including “conflicts of

interest in the award of several contracts;” allowing “contractors to use [Plaintiff’s] credentials to

approve the payments for other contractors;” “inappropriately charging hours against contracts to

support [Plaintiff’s] personal activities;” and failure to report several hundred thousand dollars in

civil judgments. Ex. E to Def.’s Mot. at 2, ECF No. 62-7. The FAS stated that it had

“discovered” a judgment against Plaintiff “for the amount of $231,940.84” and that it was “not

aware of [Plaintiff] reporting this matter.” Id. On March 3, 2017, the FAS placed Plaintiff on

2 paid administrative leave following withdrawal of his interim security clearance. Def.’s

Statement ¶ 14; Ex. G to Def.’s Mot., ECF No. 62-9. A July 25, 2017, investigatory report

detailed evidence the FAS found to support several of the misconduct allegations. See Ex. J to

Def.’s Mot.

On October 5, 2017, the FAS issued Plaintiff a notice of proposed removal, listing eight

different grounds for his termination. Ex. I to Def.’s Mot., ECF No. 62-11. The USDA stayed

Plaintiff’s removal at the request of the U.S. Office of Special Counsel, however, while the

USDA’s OIG investigated allegations Plaintiff made against another FAS official, Bryce Quick.

Def.’s Statement ¶ 39. Plaintiff remained on paid status during this time. Id. ¶ 40. On February

15, 2019, FAS Administrator Ken Isley notified Plaintiff of his decision to “suspend [Plaintiff]

indefinitely, from duty and without pay.” Ex. K to Def.’s Mot. at 2, ECF No. 62-13. The notice

stated that Plaintiff’s security clearance was withdrawn on March 2, 2017, and that “[a]s a result

of the withdrawal of your interim security clearance, you are not eligible to perform the duties of

your position.” Id.

2. Bryce Quick’s Resignation from USDA

In late 2016, Plaintiff reported FAS Chief Operating Officer Bryce Quick to the OIG for

“unethical conduct” and “concern that Quick was receiving kickbacks” from contractors. Def.’s

Reply to Pl.’s Statement of Material Facts ¶ 8, ECF No. 69-2. The OIG opened an investigation

in 2017. Id. ¶ 38. During this investigation, the OIG discovered that Quick had made a false

statement in a 2017 civil rights investigation when he denied financial involvement with a

contractor employee. Def.’s Statement ¶ 50. On February 28, 2019, the USDA’s Personnel and

Document Security Division informed FAS Administrator Isley that it had suspended Quick’s

security clearance. Id. ¶ 56. Quick completed an assigned detail in Rome, and the agency

3 detailed him to a nongovernmental organization in April 2019. Def.’s Reply to Pl.’s Statement

of Material Facts ¶ 45. The agency placed Quick on indefinite suspension on October 19, 2019,

due to suspension of his clearance. Id. ¶ 47; Ex. S to Def.’s Mot., ECF No. 62-21. Isley

informed Quick that there was no position for him within the USDA because he had lost his

clearance. Def.’s Statement ¶ 61. Quick resigned from the agency on November 27, 2019. Id.

¶ 59. In a report issued August 13, 2020, the U.S. Office of Special Counsel concluded that

Quick “did not receive financial kickbacks or other benefits from contractors in exchange for

allegedly allowing the contractors to inflate bills for services at FAS.” Ex. N. to Def.’s Mot. at 2,

ECF No. 62-16. Quick is a white, homosexual man. Def.’s Reply to Pl.’s Statement of Material

Facts ¶ 33.

B. Procedural Background

Plaintiff filed this lawsuit on July 19, 2019, claiming employment discrimination,

retaliation, and a hostile work environment in violation of Title VII. Compl., ECF No. 1. On

February 4, 2020, the USDA moved for judgment on the pleadings, arguing that Plaintiff’s

claims are not justiciable under Dep’t of Navy v. Egan,

(1988), because the Court

may not review the agency’s decision to deny him a security clearance. See generally Mot. J.

Pleadings, ECF No. 13. The Court denied that motion on June 24, 2020, concluding that it could

not determine at that early stage of litigation whether Plaintiff’s claims required evaluating the

merits of a security clearance investigation. Mem. Op. Denying J. Pleadings (“Mem. Op.”) at 1,

ECF No. 22. “[M]any issues raised by Plaintiff appear to have little to do with the substance of

the security clearance decision,” the Court observed. Id. at 8. The Court added, however, that

if after discovery Plaintiff fails to establish a case beyond challenging the security clearance decision, or fails to show that any employees made knowingly false referrals to the Security Division about him, or that similarly situated employees not of his protected class who also lost security clearances were treated more

4 favorably than he was, the Court will not hesitate to enter judgment for Defendant pursuant to Egan.

Id. at 10.

Following a lengthy discovery process, during which the Court granted in part and denied

in part Plaintiff’s motion for discovery sanctions against the USDA, see Order, ECF No. 58, the

agency now moves for summary judgment, see Def.’s Mot., ECF No. 62. Plaintiff filed his

opposition, see Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 64, and Defendant

filed a reply, see Def.’s Reply Supp. Mot. Summ. J. (“Def.’s Reply”), ECF No. 69-1. The

motion is now ripe for review.

III. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

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

R. Civ. P. 56(a). A dispute is genuine if “the evidence presents a sufficient disagreement to

require submission to a jury.” Anderson v. Liberty Lobby, Inc.,

, 251–52 (1986).

And a fact is material if it “might affect the outcome of the suit under the governing law.”

. On summary judgment, the Court views all evidence “in the light most favorable to the

nonmoving party and the [C]ourt [ ] draw[s] all reasonable inferences in favor of the nonmoving

party.” Talavera v. Shah,

(D.C. Cir. 2011).

The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. See Celotex Corp. v. Catrett,

, 322–24 (1986). The movant bears the initial

burden of identifying portions of the record that demonstrate the absence of any genuine issue of

material fact. See Fed. R. Civ. P. 56(c)(1); Celotex,

. In response, the non-

movant must point to specific facts in the record that reveal a genuine issue that is suitable for

5 trial. See Celotex,

. In considering a motion for summary judgment, a court must

“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters,

(D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the

light most favorable to the non-movant, see Anderson,

. Nevertheless,

conclusory assertions offered without any evidentiary support do not establish a genuine issue

for trial. See Greene v. Dalton,

, 675 (D.C. Cir. 1999).

IV. ANALYSIS

The Court analyzes each of Plaintiff’s claims in turn, first addressing his contention that

USDA officials discriminated against him based on his race or sexual orientation. The Court

then addresses Plaintiff’s retaliation and hostile work environment claims. After careful review

of the parties’ filings and the record, the Court concludes that Plaintiff lacks evidence that would

allow a reasonable jury to find in his favor on any of these three claims. 1

A. Employment Discrimination

Plaintiff claims that the USDA violated Title VII because he “was not treated as

favorably as similarly situated employees outside of his protected classes (African American,

male and heterosexual) . . . in the terms and conditions of his employment as well as in terms of

disciplinary, proposed disciplinary and security related administrative actions taken against him.”

Compl. ¶ 35. The facts alleged in the Complaint indicate that white managers were allowed

greater access to “their budgets and spending trends,” Compl. ¶ 17, greater flexibility in hiring,

id. ¶¶ 20, 23, and penalties short of suspension following investigations, id. at ¶ 33. On summary

judgment, the scope of these issues has narrowed to whether the USDA treated Plaintiff

1 The parties continue to debate the application of Egan to the instant case. See Def.’s Mot. at 13–20; Pl.’s Opp’n at 16–19. The Court refers the parties to its prior ruling on this issue. See Mem. Op. Denying J. Pleadings.

6 differently from white, gay employees when it initiated an investigation, suspended him, and

finally removed him from his position. See Pl.’s Opp’n at 20–21. The USDA argues that

Plaintiff cannot show disparate treatment by comparing his experience to those of other

employees, including Quick. Def.’s Mot. at 21–29. The USDA adds that it removed Plaintiff

from his position because he “could not maintain the required security clearance due to his own

misconduct” and “presented a serious security risk for the Agency.” Id. at 29. Plaintiff responds

that Quick serves as a comparator from which discriminatory treatment could be inferred. Pl.’s

Opp’n at 20–21.

Title VII of the Civil Rights Act makes it unlawful for an employer “to fail or refuse to

hire or to discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). A plaintiff

states a prima facie case of employment discrimination by establishing that “(1) she is a member

of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable

action gives rise to an inference of discrimination.” Stella v. Mineta,

(D.C.

Cir. 2002) (quoting Brown v. Brody,

(D.C. Cir. 1999)).

Once a plaintiff establishes a prima facie case, the employer must provide a legitimate

non-discriminatory or non-retaliatory reason for its adverse action. McDonnell Douglas Corp. v.

Green,

(1973); Allen v. Johnson,

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

employer cannot provide an actual, legitimate reason for the action, then the plaintiff is entitled

to judgment. Allen,

. If “the employer proffers a non-retaliatory [or

nondiscriminatory] reason for the challenged employment action, the burden-shifting framework

falls away.”

“[T]he central question” then “becomes whether the employee produced

7 sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory

or non-retaliatory reason was not the actual reason and that the employer intentionally

discriminated or retaliated against the employee.”

(cleaned up).

Summary judgment must be granted for the defendant if the plaintiff fails to “produce

sufficient evidence that would discredit [the employer’s proffered explanation] and show that the

actions were retaliatory” or discriminatory. Baloch v. Kempthorne,

(D.C.

Cir. 2008). The Court should consider “all of the evidence,” including “any combination of (1)

evidence establishing the plaintiff’s prima facie case; (2) 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, such as independent evidence of

discriminatory statements or attitudes on the part of the employer.” Holcomb v. Powell,

(D.C. Cir. 2006).

An employee may establish disparate treatment under Title VII by demonstrating that the

employer “has ‘treated [a] particular person less favorably than others because of’ a protected

trait.” Ricci v. DeStefano,

(2009) (quoting Watson v. Fort Worth Bank &

Trust,

, 985–986 (1988)). As such, “[o]ne way to discredit an employer’s

justification” for its employment action “is to show that similarly situated employees of a

different race received more favorable treatment.” Wheeler v. Georgetown Univ. Hosp.,

(D.C. Cir. 2016). “Factors that bear on whether someone is an appropriate

comparator include the similarity of the plaintiff’s and the putative comparator’s jobs and job

duties, whether they were disciplined by the same supervisor, and, in cases involving discipline,

the similarity of their offenses.” Burley v. Nat’l Passenger Rail Corp.,

(D.C.

Cir. 2015). In addition, “[a] disparate-treatment plaintiff must establish ‘that the defendant had a

8 discriminatory intent or motive’ for taking a job-related action.” Ricci,

(quoting

Watson,

). “‘Proof of illicit motive is essential,’ and the employee ‘at all times’

has the burden of proving ‘that the defendant intentionally discriminated against’ her.” Figueroa

v. Pompeo,

(D.C. Cir. 2019) (quoting Segar v. Smith,

(D.C. Cir. 1984)).

1. Adverse Employment Actions

The Court must first determine which adverse employment actions may be actionable

under Title VII. The Court construes Plaintiff’s filings as contending that he experienced

discrimination (1) when the agency decided to initiate an investigation into his activities; (2)

when the agency suspended him with pay; and (3) when the agency eventually removed him

from his position. See Pl.’s Opp’n at 20–21. In Chambers v. Dist. of Columbia,

(D.C. Cir. 2022) (en banc), the D.C. Circuit adopted a capacious view of which employment

actions can give rise to a Title VII discrimination claim. There, the court held that the statute

means what it says, and that it reaches any change that “affects an employee’s ‘terms, conditions,

or privileges of employment.’”

. Plaintiff’s termination presents the easy question, as

it plainly represents an adverse employment action. See Douglas v. Donovan,

,

552–54 (D.C. Cir. 2009). In contrast, the agency’s decisions to initiate an investigation and

suspend Plaintiff without pay represent closer calls.

Courts in this district have habitually held that “the mere initiation of” an investigation

does not “have a sufficiently adverse effect on [a] plaintiff’s employment to be actionable.”

Ware v. Billington,

(D.D.C. 2004); see also Moore v. United States Dep’t

of State,

(D.D.C. 2019) (“request for an investigation by an independent

body (as opposed to the disciplinary action that may follow) does not constitute an actionable

9 adverse employment action”). Courts previously observed a limited exception for situations

where the initiation of an investigation carries other consequences, such as denial of a promotion,

which combined arises to adverse employment action. See, e.g., King v. Holder,

(D.D.C. 2015). The more inclusive standard articulated in Chambers may affect these

conclusions, however. An investigation into an employee’s conduct may well be carried out

with discriminatory animus and itself impact the “terms, conditions, or privileges of

employment.” 42 U.S.C. § 2000e–2(a)(1). The D.C. Circuit explained in Chambers that “public

humiliation or loss of reputation,” which misconduct investigations often beget, represent “more

than de minimis harms” to an employee.

. And earlier this year the Supreme

Court reasserted that “[t]he ‘terms [or] conditions’ phrase . . . is not used ‘in the narrow

contractual sense’; it covers more than the ‘economic or tangible.’” Muldrow v. City of St. Louis,

Missouri,

, 974 (2024) (quoting Oncale v. Sundowner Offshore Serv., Inc.,

(1998)). The Supreme Court additionally disavowed the idea that a Title VII

plaintiff must “show that the injury satisfies a significance test,” id. at 972, and that he instead

must simply show that he was “treat[ed] worse” for a prohibited reason, id. at 974. In light of

these opinions clarifying the scope of Title VII, the Court is not convinced that the

discriminatory initiation of a misconduct investigation lies outside the statute’s reach, in

particular in a situation where the result of the investigation is that Plaintiff is separated from his

work responsibilities and professional networks for an extended period of time, as discussed

below. The Court does not resolve this issue, however, because the parties did not brief it and, as

explained below, Plaintiff ultimately provides insufficient evidence to show that the investigation

was carried out with discriminatory intent.

10 Whether Plaintiff was subjected to an adverse employment action when the USDA

suspended him with pay is similarly unclear. Courts in this district have generally held that

“suspension with pay” does not “constitute an adverse employment action.” Brown v.

Georgetown Univ. Hosp. Medstar Health,

(D.D.C. 2011); see also Jones v.

Castro,

(D.D.C. 2016) (“[A] 19 month period of paid administrative

leave while an investigation is ongoing . . . does not, by itself, constitute an adverse action.”).

Chambers and Muldrow may again impact these holdings. Whether an individual is in fact

allowed to work in his role could be viewed as affecting the “terms, conditions, or privileges of

employment.” 42 U.S.C. § 2000e–2(a)(1). At least one court in this district has nonetheless

held, post-Chambers, that paid administrative leave does not constitute an adverse employment

action. See Hockaday v. Washington Metro. Area Transit Auth., No. 21-cv-03265,

, at *8 (D.D.C. June 6, 2023). The issue remains an open question in this circuit. See

Cooper v. Am. Univ., No. 22-7067,

, at *2 n.4 (D.C. Cir. Jan. 13, 2023) (“We

do not reach the question of whether paid administrative leave is an adverse action.”); Hornsby v.

Watt, No. 17-5001,

, at *1 (D.C. Cir. Nov. 14, 2017) (“leaving open” the

question of whether “being placed on administrative leave could constitute the type of adverse

action that would support a retaliation claim”). Similarly to the Court’s treatment of the

investigation, the Court need not resolve the suspension issue here because, as explained below,

Plaintiff produces no evidence showing that the USDA placed him on paid administrative leave

for discriminatory reasons. The Court next turns to each adverse employment action to

determine if there is any genuine issue of material fact precluding summary judgment.

11 2. USDA’s Investigation

To the extent that Plaintiff argues he experienced discrimination because the USDA

initiated an investigation into his conduct, see Compl. ¶¶ 35–36; Pl.’s Opp’n. at 20, that basis for

his Title VII claim lacks sufficient evidence to create a question of fact for a jury. Plaintiff

asserts that “[t]he focus” of his “race and sexual orientation discrimination claim is Bryce

Quick.” Pl.’s Opp’n at 16. Plaintiff thus presents Quick as a comparator of a “different race”

and sexual orientation who “received more favorable treatment.” Wheeler,

; see

also Burley,

(“A plaintiff can establish pretext masking a discriminatory motive

by presenting ‘evidence suggesting that the employer treated other employees of a different race

. . . more favorably in the same factual circumstances.’”). It is plain, however, that Quick did not

receive more favorable treatment regarding the agency’s decisions to investigate the two

employees. The USDA received misconduct complaints against Plaintiff in November and

December 2016, and it soon opened an investigation. Def.’s Statement ¶¶ 9–11. When Plaintiff

made complaints against Quick in late 2016, the agency opened an investigation of his activities,

as well. Def.’s Reply to Pl.’s Statement of Material Facts ¶¶ 8, 38; Def.’s Statement ¶¶ 47–48.

Plaintiff additionally asserts, when questioning the USDA’s reasoning for immediately

suspending him, that “Quick was subjected to a more serious criminal misconduct investigation

while Young was subjected to an employee misconduct investigation.” Pl.’s Opp’n at 20. In

light of these facts, the Court concludes that there is no genuine dispute of material fact over

whether Quick received “more favorable treatment” in the context of the individuals’ respective

misconduct investigations. Wheeler,

. As a result, the Court need not decide

whether the USDA’s misconduct investigation into Plaintiff’s activities constituted adverse

employment action.

12 3. Plaintiff’s Suspension

Plaintiff argues that he experienced discrimination because he was suspended

immediately after the USDA withdrew his interim clearance, while Quick was not. See Pl.’s

Opp’n at 20–21. Again, Plaintiff presents Quick as a comparator of a “different race” and sexual

orientation who “received more favorable treatment.” Wheeler,

. To present

Quick as a comparator, Plaintiff must “demonstrate that ‘all of the relevant aspects of [his]

employment situation were nearly identical to” Quick’s. Burley,

(quoting

Holbrook v. Reno,

(D.C. Cir. 1999)). When determining whether a plaintiff

and another employee were similarly situated, courts typically look to “the similarity of the

plaintiff’s and the putative comparator’s jobs and job duties, whether they were disciplined by

the same supervisor, and, in cases involving discipline, the similarity of their offenses.”

“While no ‘numerosity’ requirement applies to comparators, such that a ‘single comparator’ may

suffice to support an inference of discrimination, ‘the degree of similarity necessary may vary in

accordance with the size of the potential comparator pool, as well as to the extent to which the

plaintiff cherry-picks would-be comparators.’” Burton v. District of Columbia,

(D.D.C. 2015) (quoting Humphries v. CBOCS West, Inc.,

, 406–07 (7th

Cir. 2007)).

Quick cannot serve as the sole comparator to Plaintiff because their “employment

situation[s]” were not “nearly identical” in “all of the relevant aspects.” Neuren v. Adduci,

Mastriani, Meeks & Schill,

(D.C. Cir. 1995). First, Plaintiff has to some

degree “cherry-pick[ed]” Quick from the pool of potential comparators. Burton,

. The USDA turned over records relating to other employees whose clearances were

suspended or withdrawn, many of whom were placed on administrative leave as a result. See Ex.

13 U to Def.’s Mot. at 2–5. At least one of those individuals was a Caucasian employee placed on

administrative leave due to suspension of her clearance. Id. at 5; Ex. Z to Def.’s Reply at 5, ECF

No. 69-5. The agency includes these individuals in its motion for summary judgment, see Def.’s

Mot. at 24–28, but Plaintiff narrows the field of comparators to Quick alone without addressing

these other examples, see Pl.’s Opp’n at 16.

Second, Plaintiff’s “job duties” differed significantly from Quick’s. Courts often look to

the duties attending each employee’s position when evaluating whether they are appropriate

comparators. See Barbour v. Browner,

(D.C. Cir. 1999) (concluding that a

GS-12 employee was not similarly situated to another GS-13 employee because the GS-13

performed several duties that the GS-12 did not); Banks v. Perdue,

(D.D.C. 2018) (concluding that a jury could find two employees similarly situated in part

because they were both “deputy directors in USDA’s Office of Civil Rights” and were both

“members of the SES”). As Chief Information Officer, Plaintiff “direct[ed] the Information

Technology program area in the [FAS] and [was] responsible for management and oversight of

information technology support.” Ex. A to Def.’s Mot. at 80. The role was classified as GS-15.

In addition to planning and budgeting, Plaintiff’s duties included “security implementation,”

“evaluation of security of program data,” and “assess[ment of] security events.” Id. at 81. The

role also involved travel to overseas posts to provide “IT support” and to “assess the IT needs

and operations at posts and/or to provide training.” Richard Young Decl., Ex. 1 to Pl.’s Opp’n at

¶ 60, ECF No. 64-2. In contrast, as Chief Operating Officer, Quick headed the office that was

“responsible for worldwide management of several agency-level functions.” Ex. N to Def.’s

Mot. at 12. This included “conduct[ing] liaison with principal staff within the USDA and its

agencies, and other Federal entities.” Id. Quick’s position was also part of the Senior Executive

14 Service. Def.’s Statement ¶ 6. It stands to reason that the employees’ different positions, duties,

and accompanying skillsets would affect their respective requirements to maintain security

clearance eligibility, as well as the agency’s ability to deploy them in other roles.

Third, Plaintiff and Quick reported to different supervisors. Plaintiff reported to

Associate Chief Operating Officer Ronald Croushorn, who made the decision to place him on

administrative leave. Ex. F to Def.’s Mot, ECF No. 62-8. The Associate Chief Operating

Officer reported to Quick, who in turn reported to FAS Administrator Isley. Ex. C to Def.’s Mot.

at 3, 5. The Administrator made the decision to suspend Quick. Id. at 3. Plaintiff and Quick

were not “disciplined by the same supervisor” after the agency withdrew or suspended their

clearances, Burley,

, further weakening the probative value of Quick as a

comparator. Compare Banks,

(concluding that two USDA employees

were similarly situated in part because they had the same supervisor) with White v. Tapella,

(D.D.C. 2012) (discounting comparator police officers assigned to a different

supervisors) and Huckstep v. Washington Metro. Area Transit Auth.,

(D.D.C. 2016) (concluding bus drivers assigned to different supervisors were not proper

comparators).

Fourth, just as their duties differed, the employees’ varying positions in the agency’s

hierarchy—Quick two levels higher than Plaintiff and reporting to the head of the FAS—could

be expected to affect the agency’s willingness to maintain Quick for a period of time after

suspension of his clearance. The D.C. Circuit addressed a similar issue in Neuren, concluding

that the difference in seniority between the plaintiff legal associate and another associate

undermined her claim that they were similarly situated.

. The same problem

applies here when comparing Plaintiff to Quick. Indeed, Quick had served as Chief Operating

15 Officer since March 2011, Ex. N to Def.’s Mot. at 12, meaning that he had worked at the agency

for at least eight years prior to suspension of his clearance. In contrast, Plaintiff had been in his

role for two years and lacked a fully adjudicated clearance. This observation further

differentiates Plaintiff from Quick.

Fifth, the USDA argues that Quick and other potential comparators are inapposite

because they had “final security clearances” while “Plaintiff had only been granted a temporary

or interim clearance, which is given at the discretion of the agency while the investigation and

final adjudication process continues.” Def.’s Reply at 9. Plaintiff can be compared to a

probationary employee that cannot be properly equated to a permanent employee. See McKenna

v. Weinberger,

(D.C. Cir. 1984) (concluding that two “permanent employees”

were “not similarly situated” to a plaintiff probationary employee); Holbrook,

(concluding that a “probationary” employee was not “similarly situated to a fifteen-year veteran

with supervisory responsibilities”). This adds further daylight between the two individuals.

The only factor that might support Quick’s value as a comparator for Plaintiff’s

suspension is the “similarity of their offenses.” Burley,

. The agency insists that

it suspended and later removed Plaintiff because “[h]e could not maintain the required security

clearance due to his own misconduct.” Def.’s Mot. at 29. Although the agency had discovered

evidence Plaintiff improperly shared his credentials, misused contractor resources, and

participated in unauthorized speaking events at the time Associate Chief Operating Officer

Croushorn decided to suspend him, see Ex. J to Def.’s Mot. at 9–12, Croushorn stated in an

email to Plaintiff that he was “not privy to the factors that led to the decision by the Department

to withdraw [Plaintiff’s] interim secret security clearance,” Ex. 10 to Pl.’s Opp’n at 11, ECF No.

64-11. The decisionmaker was thus aware only of the security clearance withdrawal as a basis

16 for suspension. At the time of Quick’s suspension in October 2019, the agency had similarly yet

to complete its investigation, and it is unclear whether Administrator Isley was aware of any

substantiated misconduct at that time. See generally Ex. L. to Def.’s Mot. The employees’

“offenses” are thus similar in the sense that both were suspended for failure to maintain a

security clearance during ongoing investigations. This is not enough, however, to advance Quick

as a comparator where other dramatic differences existed between the two.

In light of these considerations, the Court concludes that no reasonable juror would

conclude that Quick serves as a proper comparator to Plaintiff, or that any difference in their

treatment demonstrates discriminatory animus. This case can be readily compared to Banks v.

Perdue, a Title VII case in which the plaintiff alleged discriminatory removal from her position

at the USDA.

. The court there determined that two employees “were

similarly situated” because “(i) both [p]laintiff and [the comparator] were members of the SES

. . . ; (ii) both were deputy directors in USDA’s Office of Civil Rights; (iii) both shared the same

supervisor . . . ; and (iv) both received an unsatisfactory rating for poor work performance . . .

and were recommended for removal from the SES at the same time.”

. Here, in

contrast, the employees’ duties differed significantly, they reported to different supervisors of

different ranks, they occupied different positions in the organization’s hierarchy, they served at

the agency for different periods of time, and one had a fully adjudicated clearance while the

other had an interim clearance. These differences between the two employees’ situations

represent “confounding variables” that prevent “isolat[ion of] the critical independent variable:

complaints about discrimination.” Burton,

(quoting Hnin v. TOA (USA),

LLC,

, 504–505 (7th Cir. 2014)). It is true that although the FAS suspended

Plaintiff immediately after withdrawal of his interim clearance, it allowed Quick to continue

17 working for approximately six months. But it is impossible to untangle that six-month delay

from these differences between the employees.

Plaintiff presents no other evidence demonstrating that the FAS or the USDA

“intentionally discriminated against” him when it suspended him due to lack of a security

clearance. Figueroa,

. Assuming that placement on paid administrative leave is

an adverse employment action, Plaintiff has presented no evidence that would allow a jury to

conclude that the USDA did so because of his membership in a protected class. 2

4. Plaintiff’s Removal

Plaintiff argues that he experienced discrimination in connection with his removal

because “[t]he Administrator decided that Quick would not be removed but that [Plaintiff] would

be.” Pl.’s Opp’n at 21. Plaintiff produces no evidence showing that his removal was based on

discriminatory intent. First, as previously discussed, Quick is not a proper comparator to

Plaintiff, and any differences in the two employees’ treatment may well be explained by the

many other confounding variables. In addition, by the time of their respective removals, the

agency had completed its investigations. The agency believed Plaintiff had shared his login

credentials with contractors, used contractor time for personal tasks, and participated in

unauthorized speaking engagements. See Ex. E to Def.’s Mot. In comparison, the agency

determined that Quick had made a false statement during an earlier 2017 investigation but

determined that the rest of the allegations Plaintiff made against him were unsubstantiated. See

2 The Court notes that Plaintiff appears to have served in his role from January 2015 to February 2016 without a security clearance, which may raise the question as to whether Plaintiff did in fact require the clearance to perform his duties, and whether suspension was necessary when the agency withdrew his interim clearance. The parties do not address this issue, and Plaintiff chooses to rely wholly on comparator evidence to support his claim. See Pl.’s Opp’n at 20–21. The Court declines to grapple with a factual dispute the parties themselves have not found relevant.

18 Ex. N to Def.’s Mot. 2–3. By the time of their respective removals, the offenses of which the

agency was aware were entirely dissimilar, further undermining Quick’s value as a comparator to

Plaintiff.

Second, Plaintiff does not show that he and Quick did receive differential treatment with

respect to removal. When the agency determined it could not place Plaintiff in a position that did

not require a clearance, it removed him after placing him on paid administrative leave for nearly

two years. See Ex. K to Def.’s Mot. at 2; Def.’s Statement ¶¶ 39–40. Administrator Isley

explained that he could not find an alternative position for Plaintiff because “particularly [for]

someone of Mr. Young’s level and training, there would have not been . . . a position” for him

without a security clearance. Ex. L to Def.’s Mot. at 5. When the agency concluded that it

lacked an uncleared position for Quick, it suspended him without pay, as well. Def.’s Statement

¶¶ 58, 61. Quick resigned from his position six weeks later rather than wait for the agency to

remove him. Id. ¶ 59. Plaintiff therefore cannot show that he experienced discriminatory

removal by comparing himself to Quick.

Finally, the agency presents evidence of the broader pool of employees whose clearances

were suspended in the timeframe Plaintiff requested during discovery. It reveals no indication of

broader racial discrimination, and Plaintiff presents no rebuttal nor relies on any of these

individuals as a comparator. 3 The USDA removed four out of the eleven employees whose

clearances were indefinitely suspended. See Def.’s Mot. at 24–27 (collecting supporting

exhibits). Two of the removed individuals were Caucasian, and two were African American

3 Plaintiff instead contends that “there is also evidence that other white employees were similarly the subject of employee misconduct investigations without action on their clearances.” Pl.’s Opp’n at 21. This argument attacks the decision to withdraw Plaintiff’s interim clearance and not the decision to suspend him following that withdrawal. As such, the argument runs headlong into Egan.

19 (including Plaintiff). Id. Five other individuals—two Caucasian employees (including Quick),

two Hispanic employees, and one African American employee—retired or resigned before the

agency removed them. Id. Only two individuals—one Hispanic employee and one Caucasian

employee—remained at the agency. Id. One of those individuals, for instance, was an

Employee and Labor Relations Specialist whose position did not require a clearance. Id. at 25.

This evidence reveals no pattern in which employees with suspended clearances were retained or

removed based on membership in a protected class.

Other than pointing to Quick and these other employees, Plaintiff identifies no additional

evidence supporting his claim that the USDA removed him because of his membership in a

protected class. See Pl.’s Opp’n at 20–21. As there is no genuine dispute of material fact for a

jury to resolve, Defendant is entitled to summary judgment on Plaintiff’s employment

discrimination claim.

B. Retaliation

Plaintiff claims that he was placed on administrative leave “within a week or so of

seeking counseling” through the agency’s Equal Employment Opportunity (“EEO”) process.

Compl. ¶ 24. Plaintiff thus contends that the investigation and his placement on administrative

leave were unlawful “retaliatory conduct.” Id. ¶ 39. The USDA argues that the evidence

demonstrates that the agency suspended and then removed Plaintiff due to withdrawal of his

interim clearance, not as retaliation for his engagement in protected activity. Def.’s Mot. at 29–

30. Plaintiff responds that he has established a prima facie case that the agency retaliated against

him for filing an Equal Employment Opportunity complaint. Pl.’s Opp’n at 22; Ex. 5 to Pl.’s

Opp’n, ECF No. 64-6 (Richard Young EEO Counselor report). The Court agrees with the

agency.

20 To succeed on a retaliation claim, a plaintiff needs to show “that she engaged in protected

activity, that she suffered an adverse employment action, and that there was a causal link

between the former and the latter.” Allen,

. Plaintiff contends that the “[c]lose

temporal proximity between an EEO complaint and a personnel action is sufficient to establish a

prima facie case.” Pl.’s Opp’n at 22. Yet while temporal proximity may suffice to establish a

prima facie case of discrimination within the McDonnell Douglas burden-shifting framework,

see Clark Cnty. Sch. Dist. v. Breeden,

(2001), once an employer provides

legitimate, non-retaliatory reasons for its action, “positive evidence beyond mere proximity is

required to defeat the presumption that the proffered explanations are genuine.” Woodruff v.

Peters,

(D.C. Cir. 2007). Because the USDA has proffered a non-retaliatory

reason for its employment actions, “the burden-shifting framework falls away.” Allen,

. The question is now whether there is “sufficient evidence for a reasonable jury to find that

the employer’s asserted nondiscriminatory or non-retaliatory reason was not the actual reason

and that the employer intentionally discriminated or retaliated against the employee.”

(cleaned up).

The parties do not dispute that Plaintiff sought EEO counseling on February 24, 2017,

approximately one week before the USDA suspended him on March 2, 2017. Def.’s Reply to

Pl.’s Statement of Material Facts ¶¶ 11–13; Ex. 5 to Pl.’s Opp’n. Plaintiff additionally asserts

that the Agency did not begin its investigation into his activities until March 9, 2017, after he

approached the EEO. Def.’s Reply to Pl.’s Statement of Material Facts ¶ 13. As evidence of

this, Plaintiff points to the agency’s June 25, 2017, investigative report showing that witness

interviews began on March 9, 2017. Ex. 7 to Pl.’s Opp’n at 5, ECF No. 64-8. That argument

makes little sense given that the agency had already uncovered what it believed to be unreported,

21 negative information regarding Plaintiff’s outstanding civil judgment at the time it withdrew his

interim security clearance on March 2, 2017, meaning that the agency necessarily would have

started investigating on or before that date. See Ex. E to Def.’s Mot. In addition, misconduct

investigations involve more than just witness interviews, and the full investigative report shows

that the agency’s Personnel Misconduct Investigator began reviewing Plaintiff’s emails on

November 23, 2016. Ex. J. to Def.’s Mot. at 9. The Director of FAS’s Compliance, Security and

Emergency Planning Division explained in deposition testimony that “investigative activity

began in November of 2016,” but that her office “did not notify the Department until March 2nd,

once [it] had sufficient information that substantiated some of the allegations in that

investigation.” Ex. H to Pl.’s Mot. at 8, ECF No. 62-10. Plaintiff’s contention that the

investigation began after he sought EEO counseling is plainly refuted by the record.

The record similarly contains no evidence of a causal connection between Plaintiff’s EEO

complaint and his suspension. Internal USDA communications show that the Director of FAS’s

Compliance, Security and Emergency Planning Division reported on March 2, 2017, that it had

found a civil judgment of which it was previously “not aware.” Ex. E to Def.’s Mot at 2. In a

letter the following day, Plaintiff’s supervisor explained that “I received notice that your interim

Secret Security clearance was suspended on March 2, 2017. This letter notifies you that I am

placing you on administrative leave, until further notice.” Ex. F to Def.’s Mot. at 2. Plaintiff

himself provides agency email records between security personnel and Plaintiff’s supervisor

showing that he suspended Plaintiff as a direct result of the security clearance withdrawal. See

Ex. 10 to Pl.’s Opp’n. Security staff informed Plaintiff’s supervisor that “[p]rocedurally, since

we were given notification of the withdrawal of the Interim Secret security clearance and that

was provided to you via the email I forwarded on March 2, 2017, you took appropriate,

22 immediate action” by suspending Plaintiff. Id. at 9. This documentation presents strong

evidence that the agency placed Plaintiff on administrative leave as a direct result of withdrawal

of his clearance and for no other reason.

Plaintiff presents no evidence tending to show that the agency suspended him in

retaliation for his EEO complaint rather than withdrawal of his clearance. He cannot point to

“‘changes and inconsistencies’ in the [USDA’s] given reasons for the decision,” evidence that

the USDA “failed to ‘follow established procedures or criteria’” when it investigated and

suspended him; 4 or documentation that the USDA’s “‘general treatment of’ . . . employees who

asserted their Title VII rights . . . was worse than its treatment of . . . employees who did not

assert their Title VII rights.” Allen,

(quoting Brady v. Off. of Sergeant at Arms,

, 495 n.3 (D.C. Cir. 2008)). Nor does he provide anything indicating that the

USDA’s “proffered reasons are ‘unworthy of credence.’”

(quoting Jones v. Bernanke,

(D.C. Cir. 2009)).

Plaintiff points the Court to nothing outside the temporal proximity between his EEO

counseling and his suspension. See Pl.’s Opp’n at 22. On its own view of the record, the Court

finds no other evidence tending to show that the individuals who decided to suspend Plaintiff

knew about his Equal Employment Opportunity complaint or took adverse employment action

against him because of the complaint. “[J]udgment in an employer’s favor is appropriate where

the plaintiff’s evidence calling the employer’s proffered reason into doubt is weak, and the

record also contains ‘abundant and uncontroverted independent evidence that no discrimination

[or retaliation] had occurred.’” Allen,

(quoting Reeves v. Sanderson Plumbing

4 Plaintiff does challenge the procedures the Agency used for “revocation or suspension of a security clearance.” Def.’s Reply to Pl.’s Statement of Material Facts ¶ 15. This issue is not actionable under Title VII in light of Egan.

23 Prods., Inc.,

(2000)). As a result, the agency is entitled to summary judgment

on Plaintiff’s retaliation claim.

C. Hostile Work Environment

Finally, Plaintiff claims that USDA officials “subjected Plaintiff to harassment because of

his race, gender and sexual orientation and retaliatory harassment because of Plaintiff’s

complaints.” Compl. ¶ 41. He asserts that “[t]he harassment was severe and/or pervasive and

negatively impacted Plaintiff’s ability to perform his position.”

The USDA contends the

evidence shows that Plaintiff was “not subject to a hostile work environment permeated with

discriminatory intimidation, ridicule, and insult” as required for relief under Title VII. Def.’s

Mot. at 31. Plaintiff asserts that an official threatened him and that Quick instructed a contractor

to hire a private investigator to follow him. Pl.’s Opp’n at 22–23. The USDA’s position

prevails.

To succeed on a hostile work environment claim, “a plaintiff must show that his

employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” Baloch,

(quoting Harris v. Forklift Sys., Inc.,

(1993)). The standard “presents a high bar,” as “Title VII is not meant to be a general

civility code.” Foxworth v. McDonough, No. 23-cv-2195,

, at *6 (D.D.C. Jan.

10, 2024). In evaluating a hostile-environment claim, a court “looks to the totality of the

circumstances, including the frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work performance.” Baloch,

(citing Faragher v. City of Boca Raton,

, 787–88 (1998)). “[T]o

demonstrate a hostile work environment in violation of Title VII, a plaintiff ‘must always prove

24 that the conduct at issue was not merely tinged with offensive . . . connotations, but actually

constituted discrimination . . . because of’ the employee’s race” or sex. Burton,

(quoting Oncale,

); Bryant v. Brownlee,

(D.D.C.

2003) (granting motion to dismiss hostile work environment complaint where alleged events

lacked “racial or age-related overtones”); Harris v. Wackenhut Servs., Inc.,

(D.C. Cir. 2011) (citing Davis v. Coastal Int’l Sec., Inc.,

(D.C. Cir. 2002)

(concluding that evidence that “bears no connection to [the plaintiff’s] race … cannot support a

hostile work environment claim”).

None of the events Plaintiff cites had any discernable connection to his membership in a

protected class, such that no reasonable jury could find he was subjected to a hostile work

environment based on his race or sexual orientation. Plaintiff cites his declaration stating that an

agency undersecretary rebuffed complaints about Quick’s hiring practices by asserting that the

undersecretary “takes care of his friends.” Ex. 1 to Pl.’s Opp’n ¶ 49; see also Pl.’s Opp’n at 23.

Plaintiff does not explain how this exchange relates to his race or sexual orientation, and the

inference is not apparent to the Court. Plaintiff also asserts that another official hired a private

investigator to follow him but provides no details about when and for how long this occurred.

Ex. 1 to Pl.’s Opp’n ¶ 58; see also Pl.’s Opp’n at 23. It is again unclear how this event reflects

animus based on Plaintiff’s membership in a protected class. Finally, Plaintiff states in his

opposition that a contractor “falsely accused him of hiring contractors who were friends

(damaging his reputation) and oddly claimed he had done something wrong by driving a luxury

vehicle.” Pl.’s Opp’n at 23 (citing Ex. 1 to Pl.’s Opp’n ¶ 58). 5 These events are not supported

5 Plaintiff’s reference to his vehicle may relate to an allegation that Plaintiff improperly used a Mercedes-Benz leased by a contractor. See Ex. J to Def.’s Mot. at 4.

25 by any admissible evidence in the record, and they once again do not demonstrate animus

“because of [Plaintiff’s] race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–

2(a)(1).

The only reference Plaintiff makes to harassment based on discriminatory animus appears

in his statement of material facts, citing “microaggressions and other conduct he believed to be

on the basis of his race and sexual orientation.” See Def.’s Reply to Pl.’s Statement of Material

Facts ¶ 11. That paragraph cites a form related to Plaintiff’s Equal Employment Opportunity

complaint, which contains no relevant details and appears to be missing forty-nine of the fifty-

one pages in the document. See id. (citing Ex. 5 to Pl.’s Opp’n). These conclusory allegations

unsupported by specific facts in the record are insufficient to survive summary judgment and

create a triable issue of fact for a jury. See Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S.

Dep’t of Transp.,

(D.C. Cir. 2009); Greene, 164 F.3d at 675.

While Plaintiff’s facts may support some form of whistleblower retaliation claim, they do

not evince a discriminatory work environment. See Stella,

(observing that

“whistleblowing activity” includes “disclosing illegal conduct, gross mismanagement, gross

wasting of funds, or actions presenting substantial dangers to health and safety”); Mintzmyer v.

Dep’t of Interior,

(Fed. Cir. 1996) (“[A] discrimination claim is distinct from a

whistleblowing claim.”). Nor are they sufficiently “extreme to amount to a change in the terms

and conditions of employment.” Faragher,

. Because Plaintiff fails to establish

a genuine dispute of material fact in relation to his hostile work environment claim, the USDA is

entitled to summary judgment on that issue, as well.

26 V. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 26, 2024 RUDOLPH CONTRERAS United States District Judge

27