UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 ) 

DANIEL J. SALAK, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 15-cv-2237 (KBJ) 

 ) 

E. SCOTT PRUITT, in his official capacity as 

Administrator of the Environmental Protection 

Agency, 

) 

) 

) 

 ) 

 Defendant. ) 

 ) 

MEMORANDUM OPINION 

Plaintiff Daniel Salak—an employee of the Criminal Investigations Division 

(“CID”) of the Environmental Protection Agency (“EPA” or “Defendant”)—has filed 

the instant action against the EPA under Title VII of the Civil Rights Act of 1964, 42 

U.S.C. §§ 2000e–2000e-17.1 Salak alleges that the EPA unlawfully retaliated against 

him when his supervisors took affirmative steps to reassign him from CID’s 

Baltimore/Ft. Meade office in Ft. Meade, Maryland, to CID’s regional office in Seattle, 

Washington, immediately after Salak engaged in an activity that Title VII protects. 

(See Compl. ¶¶ 1, 20.) Specifically, Salak alleges that the day after he complained that 

his supervisor’s refusal to approve his request to use sick leave to care for his wife and 

 

1

 Salak’s complaint names former EPA Administrator Gina McCarthy as the defendant in this action 

(see Compl., ECF No. 1, ¶ 18), but McCarthy’s successor in office—EPA Administrator Edward Scott 

Pruitt—has since been automatically substituted as the defendant pursuant to Federal Rule of Civil 

Procedure 25(d). Furthermore, because Administrator Pruitt is being “sued in h[is] official capacity 

only” (id.), this suit functions as an action against the EPA, see Cty. Bd. of Arlington v. U.S. Dep’t of 

Transp., 705 F. Supp. 2d 25, 28 (D.D.C. 2010) (“[A]n official-capacity suit is a way of pleading an 

action against the agency which the official heads.”), and will be treated as such for purposes of this 

Memorandum Opinion. 
2 

newborn child was “disparate treatment” of him as a “birth father” (id. ¶ 40), he was 

informed that he was being transferred to the Seattle office (see id. ¶¶ 40–44). This 

announced cross-country reassignment plan was eventually cancelled (see Def.’s 

Statement of Mat. Facts (“Def.’s Statement”), ECF No. 19-3, ¶ 71; Pl.’s Resp. to Def.’s 

Statement of Mat. Facts & Pl.’s Statement of Genuine Issues (“Pl.’s Statement”), ECF 

No. 20-1, at 35 ¶ 71), but Salak contends that the threat of relocation under the 

circumstances presented here constituted actionable retaliation nevertheless.2

Before this Court at present is the EPA’s motion for summary judgment. (See

Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 19; Def.’s Mem. in Supp. of Mot. 

for Summ. J. (“Def.’s Mem.”), ECF No. 19-2.) Among other things, the agency argues 

that the evidence fails to demonstrate that “there is [any] causal connection between the 

claimed adverse action and [Salak’s] . . . protected activity.” (Def.’s Mem. at 15; see 

also Def.’s Reply in Supp. of Mot. for Summ. J. (“Def.’s Reply”), ECF No. 32, at 8 

(characterizing Salak’s inability to “establish causation” as the “[m]ost fatal” defect in 

his claim).) For the reasons explained below, this Court agrees. In short, because the 

record clearly establishes that the EPA’s decision to transfer Salak was made prior to 

Salak’s invocation of his rights under Title VII, no reasonable jury could find that the 

agency decided to reassign Salak to Seattle, or took steps to implement that course of 

action, because of his protected activity. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 

268, 272 (2001). Consequently, the EPA’s motion will be GRANTED, and summary 

 

2

 Page-number citations to the documents that the parties have filed refer to the page numbers that the 

Court’s electronic filing system automatically assigns. 
3 

judgment will be entered in favor of Defendant on all of Salak’s claims. A separate 

Order consistent with this Memorandum Opinion will follow. 

I. BACKGROUND 

A. Basic Facts3

Salak began working for the EPA in 2002; he served as a Special Agent in CID’s 

resident office in Baltimore/Ft. Meade (which is in Maryland) at all times relevant to 

this case. (See Compl. ¶ 20.)4 “CID is one component of the Office of Criminal 

Enforcement Forensics and Training . . . within EPA’s Office of Enforcement and 

Compliance Assurance[,]” and “[i]t is responsible for conducting investigations into 

significant violations of environmental crimes including the Clean Air Act and the 

Clean Water Act, and coordinating with other federal agencies, the Department of 

Justice, and Assistant United States Attorneys in prosecuting criminal violations.” (Id.

¶ 22.) The Baltimore/Ft. Meade office is a “satellite office” of a CID region that is 

headquartered in Philadelphia, Pennsylvania. (Id. ¶ 1.) Salak worked at the 

Baltimore/Ft. Meade office independently, with supervision coming from CID 

personnel at the regional headquarters in Philadelphia. (See Def.’s Statement ¶¶ 7–10.)5

 

 

3

 The following facts concerning Salak’s employment with the EPA, his protected activity, and the 

agency’s alleged adverse employment action are not disputed, unless otherwise noted. 

4

 Salak “was promoted to the position of Resident Agent in Charge . . . of the Baltimore/Ft. Meade 

Resident Office” in June of 2012, roughly two years after the conclusion of the events that are relevant 

to this case. (Pl.’s Statement at 37 ¶ 6.) 

5

 The complaint contains a helpful explanation of the relationship between CID’s “resident” and 

“regional” offices and the types of supervisors within these offices: 

CID is comprised of ten “area” or “regional” offices around the country. Each 

of these offices is headed by a Special Agent in Charge (“SAC”) who reports to 

the Deputy Director, and an Assistant Special Agent in Charge (“ASAC”), who 

reports to the SAC. Each area office contains a number of smaller “resident” 

offices within them, generally headed by a Resident Agent in Charge (“RAC”). 

(Compl. ¶ 23.) 
4 

1. Salak’s Supervisors Decide To Transfer Him To An Office Where 

There Is More Supervision 

The saga that brings the parties before this Court apparently began in 

conjunction with a dispute between Salak and his second-line supervisor—Special 

Agent in Charge (“SAC”) David Dillon—regarding whether Salak was entitled to use 

accumulated sick leave to care for his wife and newborn child after the child was born 

prematurely. In September of 2009, Salak notified Dillon and his other immediate 

supervisor (Assistant Special Agent in Charge (“ASAC”) Christian Spangenberg) that 

he intended to use his accumulated sick leave as soon as the child was born, as he 

believed was his right under the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq.

(“FMLA”). (See Compl. ¶¶ 26–27.) When the child was born unexpectedly one month 

later, Salak informed Spangenberg that he would be out of the office on FMLA leave. 

(See id. ¶ 28.) When Salak returned to work following the period of leave, he and 

Dillon clashed throughout December of 2009 concerning whether the leave time Salak 

had taken would be deemed approved, or whether he would have to use other annual 

leave to cover the absence retroactively or take leave without pay. (See id. ¶¶ 29, 

31–36.) Dillon retroactively cancelled all but four days of Salak’s paid sick leave, and 

also—over Salak’s objections—rescinded Salak’s temporary detail to the CID resident 

office in Syracuse, New York. (See id. ¶¶ 36–37). 

A series of related meetings and communications ensued, some of which were 

with Salak present, and with this FMLA dispute on full display. (See, e.g., U.S. Office 

of Special Counsel Draft Report (“OSC Draft Report”), Ex. 4 to Pl.’s Statement, ECF 

No. 20-6, at 5 (at a staff meeting on January 5, 2010, Dillon “emphasized to [Salak and 

other] agents the importance of following the chain of command” and Salak “asked 
5 

SAC Dillon what he should do if he had a problem with SAC Dillon and wanted to file 

a grievance” under the FMLA); see also Compl. ¶ 38 (Salak “informed” Dillon during 

the January 5, 2010, staff meeting “that he would be filing a grievance” under the 

FMLA “over Mr. Dillon’s continued denial of his sick leave requests”).) Other contacts 

involved various agency supervisors and focused on Dillon’s characterizations of 

Salak’s general insubordination. (See OSC Draft Report at 5 (after learning on January 

5, 2010, that Salak had attempted to arrange a temporary detail for himself in another 

CID region without Dillon’s knowledge or approval, Dillon called CID Deputy Director 

Douglas Parker to complain that Salak “[i]s acting as an ‘independent operator,’” and to 

say that they “‘gotta do something’” because Salak’s “behavior need[s] to stop”); see 

also id. (Dillion emailed Parker, ASAC Spangenberg, and CID counsel Laura 

Fentonmiller to assert that Salak “thinks he is above everyone else and can do whatever 

he pleases to get whatever he wants[,]” and had “circumvent[ed]” the “Chain of 

Command”).) The record shows that Dillon’s complaints about Salak’s performance 

stemmed at least in part from Dillon’s conclusion that Salak had “fail[ed] to 

demonstrate the ability to work independently such that he should [not] remain in a 

resident office without day-to-day supervision[,]” and had shown a “pattern of 

exercising poor judgment as a Special Agent” which “dictat[ed] [the need for] closer 

supervision[.]” (Mem. from Dillon to Barnes (Jan. 11, 2010) (“Final Transfer Mem.”), 

Ex. F to Def.’s Statement, ECF No. 19-10, at 2; see also id. at 3 (identifying specific 

examples of Salak’s “questionable decisions[,]” including his “plan[] to do [a] consent 

search with no operations plan as required by regulations”).) 
6 

Significantly for present purposes, the record evidence demonstrates that Dillon 

specifically suggested either “reassigning” Salak or “issuing him a letter of reprimand” 

as of January 5, 2010, and that Dillon actually “began putting together paperwork in 

support of . . . Salak’s reassignment” on that date. (OSC Draft Repot at 5.) 

Additionally, Dillon’s complaints about Salak kicked off a flurry of reassignmentrelated activity that continued throughout the week of January 5th. For example, on 

January 6th, Spangenberg sent Dillon a draft memorandum “to address the issue of . . . 

Salak being re-assigned to the Philadelphia Area Office.” (Email from Spangenberg to 

Dillon (Jan. 6, 2010) (“Draft Transfer Mem.”), Ex. 5 to Pl.’s Statement, ECF No. 20-7, 

at 3.) In this memorandum, which was drafted on Dillon’s behalf, Spangenberg stated 

that the primary reason for the proposed transfer was to provide Salak with the 

“immediate and/or direct supervision” that he lacked in the Baltimore/Ft. Meade office, 

and Spangenberg “ask[ed] that . . . Salak be re-assigned with[] haste in order to bring 

command and control to his daily routine and provide the leadership he sorely needs.” 

(Id.) Spangenberg also specifically recommended that Salak be reassigned to 

Philadelphia—the regional headquarters—but stated that he “support[ed] other possible 

duty location assignments [beyond the Philadelphia office] based on the needs of the 

Division.” (Id.) 

CID management continued revising the draft reassignment memorandum the 

following day (see Emails dated Jan. 7, 2010 (“Jan. 7 Emails”), Ex. 6 to Pl.’s 

Statement, ECF No. 20-8, at 2–7), and Dillon wrote that he wanted to inform Salak of 

the planned transfer the following Monday, January 11, 2010 (see id. at 6). Deputy 

Director Parker also sent an email to Dillon and Spangenberg, to “follow up [on] our 
7 

discussions over the past months regarding . . . Salak’s need for direct supervision in an 

area office (that needs additional staffing),” and to express his “support [for] such a 

re-assignment[.]” (Email from Parker to Dillon (Jan. 8, 2010) (“Jan. 8 Parker-Dillon 

Email”), Ex. 7 to Pl.’s Statement, ECF No. 20-9, at 2.) Parker’s email further asked 

Dillon to “finalize and send a memo to [CID] Director [Becky] Barnes requesting 

consideration for [the transfer]” so that they could “work to move forward” (id.), and 

Parker also reached out to Barnes directly, saying that he wanted to “talk with [her] . . . 

re[garding] the possible re-assignment of Salak to an area office where he could get 

appropriate supervision.” (Email from Parker to Barnes (Jan. 8, 2010) (“Jan. 8 

Parker-Barnes Email”), Ex. D to Def.’s Statement, ECF No. 19-8, at 2). Parker added 

that he had already discussed the transfer with others, and that Dillon wanted to “meet 

with Salak and advise him [of the reassignment], if approved, by next Friday[, January 

15, 2010].” (Id.) 

The following week—on January 11, 2010—Dillon sent a final, signed 

memorandum to Parker and Barnes in which he recommended that Salak “be 

immediately re-assigned to the Philadelphia Area Office, and then permanently 

re-assigned to an Area Office with the need for another agent.” (See Final Transfer 

Mem. at 2.)6

 Then, on the same day that this final transfer memorandum was

 

6

 Salak claims “there is no evidence that this Memo” was actually ever transferred to CID leadership, 

“or that it was even drafted on January 11.” (Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), 

ECF No. 20, at 19.) But as the EPA points out, the record in this case includes “sworn affidavits 

stating that the memorandum was drafted and sent on January 11, 2010,” as well as “witness 

testi[mony] stating, under oath, that this memorandum was sent on January 11, 2010[.]” (Def.’s Reply 

at 11 n.4 (citations omitted); see, e.g., Dillon Aff. (Feb. 9, 2011), Ex. B to Def.’s Statement, ECF No. 

19-6, at 5 (Dillon stating that he sent the memorandum to Director Barnes “[o]n January 11, 2010”); 

Barnes Aff. (Feb. 15, 2011), Ex. C to Def.’s Statement, ECF No. 19-7, at 5 (Barnes stating that she 

“received the [January 11th] memorandum from SAC Dillon”); EEOC Hr’g Tr. (Aug. 20, 2015), Ex. H 

to Def.’s Statement, ECF No. 19-12, at 5 (Parker testifying that Dillon sent the January 11th 

memorandum to Barnes).) 
8 

transmitted to CID leadership, Spangenberg contacted Salak to arrange the 

aforementioned meeting with Dillon in Philadelphia on January 15, 2010. (See Emails 

dated Jan. 11, 2010 (“Jan. 11 Salak-Dillon Emails”), Ex. J to Def.’s Statement, ECF No. 

19-14, at 3.) Salak followed up by emailing Dillon to request “a list of specific issues” 

to be discussed at the meeting, and when Dillon declined to provide the requested 

information, Salak replied that he would “be requesting the presence [of] counsel” if the 

“meeting is to address any issues that could lead to a disciplinary action[.]” (Id. at 2.) 

Salak asked Dillon to inform him if any such issues would be discussed, “thus 

warranting legal counsel being present[,]” and Dillon responded that “[n]o disciplinary 

action [would be] involved[.]” (Id.) 

2. Salak’s January 14th Memorandum and The January 15th Meeting 

On the eve of the January 15th meeting, Salak wrote a memorandum to Dillon in 

which he stated, among other things, that his rights under “Title VII of the Civil Rights 

Act of 1964” were being infringed by Dillon’s “singl[ing] out [Salak’s] 

pregnancy-related conditions for special procedures related to [his] work or sick leave.” 

(Mem. from Salak to Dillon (Jan. 14, 2010) (“Jan. 14 Salak Mem.”), Ex. K to Def.’s 

Statement, ECF No. 19-15, at 4.) In the memorandum, Salak also asserted that “if you 

continue to deny me the leave requested . . . or attempt to take any retaliation against 

me whatsoever for exercising my rights, I will pursue all of my rights . . . to appeal 

your decision, including a complaint to the Office of Special Counsel and a personal 

civil suit, if necessary.” (Id.) 

When Salak met with Dillon and Spangenberg the next morning in Philadelphia, 

he was told that a “re-assignment to the Seattle Area Office” had been “recommended” 

and “approved by Headquarters[,]” and that, pending Salak’s permanent reassignment to 
9 

Seattle, he was to report to the Philadelphia office three days a week. (Mem. to File 

(Jan. 15, 2010), Ex. M to Def.’s Statement, ECF No. 19-17, at 2.) That same morning, 

Dillon requested that “the Permanent Change of Station process for . . . Salak for his 

directed re-assignment” to the Seattle office be “initiate[d].” (Email from Dillon (Jan. 

15, 2010), Ex. 8 to Pl.’s Statement, ECF No. 20-10, at 2.) 

B. Related Administrative Proceedings 

On January 25, 2010, ten days after the meeting in Philadelphia, Salak filed a 

complaint with the U.S. Office of Special Counsel. (See Def.’s Statement ¶ 69.)7

 Over 

the next two months, not only did the EPA “suspend[] the decision to reassign” Salak to 

the Seattle office (id. ¶ 70), but Salak was also told that he no longer needed to report to 

Philadelphia three days a week (see id. ¶ 72). A year later, in April of 2011, the agency 

cancelled the planned reassignment entirely. (See id. ¶ 71; see also Email from 

Saunders to Wood (Apr. 29, 2011), Ex. 35 to Pl.’s Statement, ECF No. 20-31, at 2.) In 

the meantime, however, Salak had filed a formal complaint of discrimination and 

retaliation with either the Equal Employment Opportunity Commission (“EEOC”) 

(according to Defendant) (see Def.’s Statement ¶ 73), or the EPA’s Office of Civil 

Rights (according to Salak) (see Pl.’s Statement at 35–36 ¶ 73). This complaint, which 

was filed in March of 2010, “alleg[ed] disparate treatment, harassment and retaliation in 

violation of Title VII of the Civil Rights Act of 1964[,]” on grounds that “the [a]gency 

subjected [Salak] to disparate treatment based on sex (male), disability (associated with 

a disabled individual) and retaliation based on protected EEO activity when” it 

 

7

 The Office of Special Counsel is an independent prosecutorial agency that investigates claims by 

federal employees of prohibited personnel practices by government agencies, including the EPA. 
10 

informed Salak that “he was being reassigned to Seattle, Washington[.]” (EEOC Order 

(Sept. 21, 2015), Ex. R to Def.’s Statement, ECF No. 19-22, at 5.) 

On September 21, 2015, an EEOC Administrative Judge (“AJ”) issued a decision 

that rejected Salak’s retaliation claim. (See generally id.)8

 The AJ found that, although 

the agency’s decision to initiate the process to reassign Salak to Seattle qualified as an 

adverse employment action and Salak had previously engaged in a protected activity 

(i.e., he had complained about alleged discrimination in violation of Title VII), Salak 

had failed to establish that “Dillon was aware of [Salak’s] protected EEO activity at the 

time he proposed [Salak’s] reassignment[,]” or that there was “a causal connection 

between [Dillon’s] decision to reassign [Salak] and the purported EEO activity.” (Id. at 

13 (emphasis added).) In this regard, the AJ found that Salak’s “protected activity did 

not occur until January 14, 2010[,] when he sent Dillon a memorandum asserting 

protection under Title VII with respect to his requests for leave related to his wife’s 

 

8

 Salak has filed a contested motion that requests that this Court strike the AJ’s opinion, and any 

reference to it, from the record in the instant case, on grounds that it interferes with his right to a trial 

de novo in federal court. (See generally Pl.’s Mot. to Strike EEOC Admin. Judge Decision, ECF No. 

23; see also Def.’s Opp’n to Pl.’s Mot. to Strike, ECF No. 25; Pl.’s Reply in Supp. of Mot. to Strike, 

ECF No. 30.) Salak’s motion to strike will be DENIED, and the AJ’s decision will be deemed admitted 

for purposes of Defendant’s motion for summary judgment, for several reasons. First, it is well 

established that “motions to strike, as a general rule, are disfavored.” Stabilisierungsfonds Fur Wein v. 

Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981). Additionally, the Supreme 

Court has found that “[p]rior administrative findings made with respect to an employment 

discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo.” 

Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976); see also Scott v. Johanns, 409 F.3d 466, 470 

(D.C. Cir. 2005) (“[T]he Court [in Chandler] drew no distinction between discrimination claims 

resolved in favor of the complainant and those resolved against the complainant[; i]n all cases, 

administrative findings may ‘be admitted as evidence.’”); cf. Goldsmith v. Bagby Elevator Co., 513 

F.3d 1261, 1288 (11th Cir. 2008) (“[A]n EEOC determination is ordinarily admissible.”). Whether or 

not to admit such findings—including EEOC-related findings in Title VII cases—is within the “sound 

discretion of the district court[,]” Barfield v. Orange Cty., 911 F.2d 644, 650 (11th Cir. 1990), and 

judges in this district routinely cite to EEOC findings and related proceedings in ruling on motions for 

summary judgment in Title VII discrimination and retaliation cases, see, e.g., Walker v. McCarthy, 170 

F. Supp. 3d 94, 100 (D.D.C. 2016) (discussing EEOC findings in decision granting defendant’s motion 

for summary judgment on disparate treatment and retaliation claims). This Court sees no reason why 

the AJ’s findings should be deemed inadmissible here. 
11 

pregnancy and child birth[,]” and that “[t]he preponderant evidence establishes that Mr. 

Dillon was not aware of [Salak’s] EEO activity” at the time he proposed Salak’s 

reassignment, or when he “sent [the January 11, 2010, final transfer] memorandum to 

[Director] Barnes with the [formal] reassignment request.” (Id.) Moreover, with 

respect to Salak’s assertion that the transfer was retaliatory because “Dillon was upset 

that [Salak] went outside of the chain of command to independently verify Agency 

policy regarding requests for FMLA leave,” the AJ concluded that such alleged 

retaliation was not actionable under Title VII because Salak’s “actions in this regard do 

not constitute protected activity under Title VII[.]” (Id.) 

C. Procedural History 

Salak initiated the instant Title VII action on December 22, 2015, three months 

after the AJ’s decision. (See generally Compl.) Salak’s complaint alleges that the EPA 

retaliated against him in violation of Title VII by (1) threatening to reassign him to 

Seattle (see id. ¶¶ 71–78 (Count I)); (2) proceeding with the reassignment process, 

which included executing documents to effectuate his transfer to Seattle (see id. 

¶¶ 79–88 (Count II)); and (3) failing to cancel the reassignment and/or failing to notify 

him that the reassignment had been cancelled timely (see id. ¶¶ 89–100 (Count III)).9 

The parties have completed discovery, and the EPA has now filed a motion for 

 

9

 In this regard, Salak’s complaint creatively repackages one allegedly retaliatory act of the EPA—its 

proposed reassignment of him from the Baltimore/Ft. Meade office to the Seattle office—into three 

separate claims, even though the complaint does not provide any legal or factual basis for doing so. 

That is, the only retaliatory adverse employment action that is actually alleged in Salak’s complaint is 

the agency’s decision to transfer him to Seattle—its execution of the transfer-related documents was 

merely a means of implementing this decision, and the agency’s failure to cancel or rescind its transfer 

decision in a timely fashion is, at most, an aggravating factor with respect to the injury that resulted 

from the allegedly retaliatory act. 
12 

summary judgment with respect to all of Salak’s claims. (See generally Def.’s Mot.; 

Def.’s Mem.) 

In its summary judgment motion, the EPA concedes that Salak engaged in an 

activity that Title VII protects on January 14, 2010, when he communicated to SAC 

Dillon that he was invoking his rights under Title VII. (See Def.’s Mem. at 11–12.) 

But the agency argues that Salak did not suffer an adverse action because his 

reassignment to Seattle was not executed and was ultimately cancelled (see id. at 

12–14), and that even if Salak was subjected to an adverse action, the challenged 

employment decision occurred before he had engaged in any protected activity because 

the reassignment was proposed, deliberated, and approved prior to January 14th (see id.

at 15–18). The EPA further maintains that it had legitimate, nondiscriminatory, and 

non-pretextual reasons for reassigning Salak, given his poor job performance and the 

need for more direct supervision. (See id. at 18–20.) 

In his brief in opposition to the summary judgment motion, Salak maintains that 

the threat to transfer him and his family across the country to Seattle was an adverse 

action under the anti-retaliation provision of Title VII (see Pl.’s Opp’n at 39–43), and 

that regardless of whether the agency had already initiated the process to transfer him to 

some undetermined office before he engaged in the protected activity, the decision to 

transfer him to Seattle had not already been made, and that location was selected at 

least in part as retaliation for the protected activity. (See id. at 34–39.) Salak also 

contends that he has adduced sufficient evidence to demonstrate that the agency’s 

purported reasons for the transfer were a pretext for retaliation. (See id. at 43–48.) 
13 

Defendant’s motion for summary judgment became ripe for this Court’s review 

on November 3, 2016. (See Def.’s Mot.; Def.’s Mem.; Pl.’s Opp’n; Def.’s Reply; Pl.’s 

Sur-Reply in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Sur-Reply”), ECF No. 33-1.) 

Because this Court concludes that Salak has failed to produce sufficient evidence for a 

reasonable jury to find that the alleged adverse employment actions were caused by his 

protected activity—which is a necessary element of his retaliation case, as explained 

fully below (see infra Parts III.A–B)—it need not consider whether the threatened (but 

unconsummated) transfer constituted an adverse employment action under Title VII’s 

anti-retaliation provision, or whether Salak has demonstrated that the agency’s stated 

reasons for the transfer were pretextual. 

II. LEGAL STANDARDS 

A. Summary Judgment 

Federal Rule of Civil Procedure 56 provides that a 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 

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 a nonmoving party. Steele v. Schafer, 535 F.3d 689, 692 

(D.C. Cir. 2008). To make this determination, a court must review all evidence in the 

light most favorable to the nonmoving party, and not only must it draw all justifiable 

inferences in the nonmoving party’s favor, it must also accept the nonmoving party’s 

evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 
14 

Importantly, however, the nonmoving party has to establish that more than a 

“mere . . . scintilla of evidence” exists in support of its position. Id. at 252; see also

Potter v. District of Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009) (“[M]erely colorable 

or not significantly probative evidence . . . is insufficient to defeat a summary judgment 

motion.” (internal quotation marks and citation omitted)). Nor can the nonmoving party 

rely on allegations or conclusory statements; instead, it must present specific evidence 

that would enable a reasonable jury to find it its favor. Greene v. Dalton, 164 F.3d 671, 

675 (D.C. Cir. 1999); see also Blue v. Perciasepe, 970 F. Supp. 2d 34, 42 (D.D.C. 

2013) (“The nonmoving party’s opposition . . . must consist of more than mere 

unsupported allegations or denials and must be supported by affidavits, declarations, or 

other competent evidence, setting forth specific facts showing that there is a genuine 

issue for trial.”); cf. Potter, 558 F.3d at 549 (“On summary judgment, the district court 

is to give credence to uncontradicted and unimpeached evidence supporting the moving 

party[.]”). 

B. Title VII Retaliation And The Plaintiff’s Burden Of Proof 

Title VII prohibits retaliation against an employee “because he has opposed any 

practice made an unlawful employment practice by [Title VII], or because he has made 

a charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). A plaintiff who 

seeks to prove that he has been subjected to unlawful retaliation must show that (1) he 

engaged in an activity that Title VII protects; (2) his employer took a materially adverse 

action against him; and (3) the employer took the action because of the protected 

activity. See McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012); Jones v. 

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); see also McGrath, 666 F.3d at 1380 n.3 
15 

(explaining these are “the elements that a plaintiff must ultimately prove in order to win 

his case”). 

“It has long been recognized that proving the aforementioned elements of a Title 

VII retaliation claim can be quite difficult for an employee when, as is often the case, 

[he] lacks direct evidence of retaliation (or discrimination).” Rochon v. Lynch, 139 F. 

Supp. 3d 394, 402 (D.D.C. 2015) (citing Trans World Airlines, Inc. v. Thurston, 469 

U.S. 111, 121 (1985)), aff’d, 664 F. App’x 8 (D.C. Cir. 2016). Of course, relying on 

circumstantial evidence is another permissible method of establishing one’s case, and 

the Supreme Court has adopted guidelines to aid judicial analysis of the strength of a 

Title VII case that is based on such evidence. Under the familiar burden-shifting 

framework that arose from the seminal Supreme Court case of McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973), a plaintiff alleging retaliation and relying on 

circumstantial evidence first points to evidence of a prima facie case—i.e., “(1) that he 

engaged in statutorily protected activity; (2) that he suffered a materially adverse action 

by his employer; and (3) that a causal link connects the two.” Jones, 557 F.3d at 677. 

And if a plaintiff identifies such evidence, the burden of production—but not 

persuasion—shifts to the defendant to provide “a legitimate, nondiscriminatory [or 

non-retaliatory] reason” for its actions. Reeves v. Sanderson Plumbing Prods., 530 U.S. 

133, 142 (2000) (internal quotation marks and citation omitted). Then, if the defendant 

does provide such a reason for the challenged employment action, “the McDonnell 

Douglas framework—with its presumptions and burdens—disappear[s],” leaving only 

the ultimate question of “discrimination vel non[.]” Id. at 142–43 (internal quotation 

marks and citations omitted). And on that question, the plaintiff bears the burden of 
16 

showing that a reasonable jury could find that the defendant’s proffered reasons are 

pretextual and that the real impetus for the adverse action was discriminatory or 

retaliatory animus. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. 

Cir. 2008); Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 654 (D.C. Cir. 

2003). 

Thus, “if the defendant has proffered a non-discriminatory reason for its 

challenged decision[,]” then “whether the plaintiff really made out a prima facie case is 

no longer relevant because the district court has before it all the evidence it needs to 

decide whether the defendant intentionally discriminated against the plaintiff[,]” 

Rochon, 139 F. Supp. 3d at 403–04 (internal quotation marks and citation omitted), and 

ultimately, it is the plaintiff’s burden to make that showing, see Brady, 520 F.3d at 494. 

In other words, summary judgment in the defendant’s favor may still be warranted 

“even when a plaintiff sets forth sufficient evidence to reject the defendant’s 

explanation,” if, based on all of the evidence presented, “it is nevertheless impossible 

for a rational factfinder to conclude the action was discriminatory [or retaliatory].” 

Rochon, 139 F. Supp. 3d at 404 (internal quotation marks and citation omitted); see also 

e.g., von Muhlenbrock v. Billington, 579 F. Supp. 2d 39, 43–45 (D.D.C. 2008) (granting 

defendant’s motion for summary judgment with respect to a Title VII retaliation claim 

because the plaintiff failed to establish a causal connection between protected activity 

and adverse action). 

III. ANALYSIS 

A Title VII retaliation claim “must be proved according to traditional principles 

of but-for causation,” which “requires proof that the unlawful retaliation would not 
17 

have occurred in the absence of the alleged wrongful action or actions of the employer.” 

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); see also Ng v. 

Lahood, 952 F. Supp. 2d 85, 91 n.4 (D.D.C. 2013) (“In order to succeed on a retaliation 

claim under Title VII, a plaintiff must show that retaliation was the but-for cause of the 

adverse employment action at issue.”). This means that the employee’s protected 

activity must be the impetus for the employer’s adverse and allegedly retaliatory 

employment action, and the action cannot have already been “contemplat[ed]” by the 

employer “before it learned” of the protected activity. Breeden, 532 U.S. at 272. 

Consequently, while causation can sometimes be inferred from a close temporal 

relationship between the protected activity and the allegedly adverse action in 

retaliation cases, the sequence truly matters—and indeed, the Supreme Court has 

clarified that “[e]mployers need not suspend previously planned [adverse employment 

actions] upon discovering that” the employee has engaged in a protected activity. Id. 

In such circumstances, even if the employment action had “not yet [been] definitively 

determined,” there “is no evidence whatever of causality” if the employer continues to 

“proceed[] along lines previously contemplated[.]” Id.

Here, the unrebutted evidence demonstrates that the EPA had already decided to 

transfer Salak out of CID’s Baltimore/Ft. Meade office before he invoked his rights 

under Title VII, and as explained below, the evidence that the parties have proffered 

leaves no doubt that the agency’s decision to transfer Salak to Seattle, as opposed to 

some other duty station, was a mere continuation of this previously contemplated course 

of action. Therefore, this Court concludes that no reasonable jury could find that the 

EPA’s decision to reassign Salak to Seattle constituted unlawful retaliation in violation 
18 

of Title VII—i.e., that the transfer decision was made because of Salak’s protected 

activity—and on that basis alone, the agency is entitled to summary judgment. 

A. Salak Cannot Show Causation Because The Record Establishes That

The Reassignment Process Was Initiated Before He Engaged In Any

Title VII Protected Activity 

Both parties agree that Salak first engaged in activity that Title VII protects on 

January 14, 2010—when he sent a memorandum to SAC Dillon that suggested he was 

the victim of pregnancy discrimination and invoked his rights under Title VII. (See

Compl. ¶¶ 6, 40; Def.’s Mem. at 11–12; Pl.’s Opp’n at 6, 19–20; Def.’s Reply at 5, 8; 

see also Jan. 14 Salak Mem. at 4 (alleging that the denial of his sick leave request 

violated the requirement of Title VII that “an employer may not single out 

pregnancy-related conditions for special procedures related to an employee’s work or 

sick leave”).) Nothing that occurred before Salak transmitted that memorandum 

(including his earlier threat to file a grievance under the FMLA over Dillon’s persistent 

denial of his sick leave requests) constitutes protected activity under Title VII, nor is 

the prior FMLA battle relevant to the question of whether Salak’s Title VII allegation 

was a but-for cause of the threatened transfer. See Sotomayor v. City of New York, 862 

F. Supp. 2d 226, 262 (E.D.N.Y. 2012) (“While [plaintiff] alleges that she was retaliated 

against for taking FMLA leave, this is not a ‘protected activity’ under Title VII[.]”); 

Male v. Tops Markets, LLC, No. 08-cv-6234, 2010 WL 4319769, at *2 (W.D.N.Y. Oct. 

29, 2010) (rejecting Title VII retaliation claim because plaintiff’s complaints regarding, 

inter alia, FMLA violations were not protected activity under Title VII); Saellam v. 

Norfolk S. Corp., No. 06-0123, 2008 WL 5286836, at *11 (W.D. Pa. Dec. 19, 2008)

(“Plaintiff’s taking of FMLA leave [and/or] his complaints about alleged FMLA 

harassment . . . are not protected activity within the meaning of Title VII.”). Salak has 
19 

brought the instant case only under Title VII, and he does not assert a violation of the 

FMLA in the context of this action.10 Therefore, the relevant benchmark for the 

retaliation claim that is the subject of this lawsuit is Salak’s invocation of his rights 

under Title VII on January 14, 2010. 

Salak vigorously maintains that “there can be no dispute that [his] January 14, 

2010 email was a determinative factor, and hence a ‘but-for’ cause, of [the agency’s] 

decision to select . . . a [transfer] location that it knew would be financially and 

practically unfeasible”—i.e., Seattle. (Pl.’s Opp’n at 34–35.) But Salak cannot deny 

that, even prior to his January 14th missive, his supervisors had already decided to 

reassign him from the Baltimore/Ft. Meade location to another CID office, and had 

taken steps to initiate the transfer process. 

Specifically, the undisputed evidence shows that, at least as early as January 5, 

2010—which was more than a week before Salak penned the January 14th 

memorandum—Dillon wrote to CID counsel and senior leadership to suggest 

“reassigning” Salak. (OSC Draft Report at 5.) Dillon and others within CID, including 

senior leadership, then spent several days discussing and revising a formal proposal for 

Salak’s reassignment (see Draft Transfer Mem. at 2–3; Jan. 7 Emails at 2–7; Jan. 8 

Parker-Dillon Email at 2; Jan. 8 Parker-Barnes Email at 2), and on January 11th Dillon 

transmitted a signed memorandum to Deputy Director Parker and Director Barnes that 

proposed Salak “be immediately re-assigned to the Philadelphia Area Office, and then 

permanently re-assigned to an Area Office with the need for another agent” (Final 

 

10 In their papers, the parties note that Salak brought (and eventually settled) a separate administrative 

FMLA claim against the EPA before the Merit Systems Protection Board (“MSPB”). (See Compl. 

¶¶ 14–15; Def.’s Mem. at 12 n.3; Def.’s Reply at 9–10.) That settlement was sealed at the agency’s 

request, and is not on the record before this Court. (See Compl. ¶ 15 & n.1; Pl.’s Opp’n at 8 n.2.) 
20 

Transfer Mem. at 2). And this formal memorandum was not the only affirmative step 

that Salak’s supervisors took to effectuate his planned reassignment: they also 

communicated to Salak that he was required to attend a January 15th meeting in 

Philadelphia, the purpose of which was (unbeknownst to Salak) to inform him of the 

pending transfer. (See Jan. 11 Salak-Dillon Emails at 2–3.) Indeed, it was not until the 

evening before the meeting at which the transfer was to be disclosed to Salak that he 

first invoked his rights under Title VII (see Jan. 14 Salak Mem. at 2–4), and by that 

time, his transfer was not only being contemplated, it was well underway. 

The fact that the official transfer announcement may not have been finalized 

prior to Dillon’s receipt of Salak’s Title VII memorandum on January 14th is of no 

moment. It is clear beyond cavil that “[e]mployers need not suspend previously 

planned transfers upon discovering” that the employee has made Title VII accusations. 

Breeden, 532 U.S. at 272; see also Cruz v. Kelly, 241 F. Supp. 3d 107, 113 (D.D.C. 

2017) (citing Breeden, 532 U.S. at 272) (rejecting Title VII retaliation claim arising 

from the plaintiff’s reassignment to another position, because “those actions had 

already been put into motion with the decision to remove [the plaintiff] from her 

position in the first place”), appeal docketed, No. 17-5113 (D.C. Cir. May 22, 2017). 

Moreover, the reason for this principle is obvious: without such a rule, the judicial 

system risks “ever-increasing frequency” of baseless “claims of retaliation” from 

employees who hurriedly invoke Title VII and allege discriminatory treatment ahead of 

a suspected adverse employment action just to provide a legal basis for subsequent 

retaliation claims against their employers. See Nassar, 133 S. Ct. at 2531–33. Indeed, 

with the following hypothetical, the Supreme Court has underscored this very concern: 
21 

Consider in this regard the case of an employee who knows that he or 

she is about to be fired for poor performance, given a lower pay grade, 

or even just transferred to a different assignment or location. To 

forestall that lawful action, he or she might be tempted to make an 

unfounded charge of racial, sexual, or religious discrimination; then, 

when the unrelated employment action comes, the employee could 

allege that it is retaliation. If respondent were to prevail in his argument 

here, that claim could be established by a lessened causation standard, 

all in order to prevent the undesired change in employment 

circumstances. 

Id. at 2532. 

 The record before this Court strongly suggests that this same cautionary tale is 

playing out here. It is clear that Salak suspected that he would be disciplined at the 

January 15, 2010, meeting with SAC Dillon in Philadelphia; indeed, he specifically 

voiced these suspicions. (See Jan. 11 Salak-Dillon Emails at 2 (“If this meeting is to 

address any issues that could lead to a disciplinary action, I will be requesting the 

presence o[f] counsel. Please let me know by [close of business] today if there will be 

any issues discussed that could lead to a disciplinary action[.]”).) And Salak invoked 

his rights under Title VII on the eve of the very meeting at which he believed that his 

fate would be determined. (See generally Jan. 14 Salak Mem.) Thus, far from giving 

rise to actual retaliation, “the timing of [Salak’s protected] activity appears to indicate 

that it was a strike against agency officials after learning that” he would potentially be 

subject to disciplinary action, in a manner that was designed to provide him with a basis 

for claiming retaliation later. Robinson v. Duncan, 775 F. Supp. 2d 143, 156 (D.D.C. 

2011); see also id. (noting the employer “had already arranged to meet with plaintiff” to 

“discuss her performance and to inform her that a sixty-day performance plan was being 

implemented” on the “very [same day]” that the plaintiff informed the employer of her 

EEO complaint). (Cf. Jan. 14 Salak Mem. at 4 (warning Dillon that, “if you . . . attempt 
22 

to take any retaliation against me whatsoever for exercising my rights, I will pursue all 

of my rights as a federal employee to appeal your decision; including a complaint to the 

Office of Special Counsel and a personal civil suit, if necessary”).) 

In sum, there is no genuine dispute regarding the fact that CID management had 

already decided to transfer Salak, and had taken concrete steps to effectuate that 

transfer, before Salak engaged in any activity that Title VII protects. Thus, the 

evidence does not support Salak’s claim that it was his protected activity that caused 

the allegedly retaliatory transfer. See Cruz, 241 F. Supp. 3d at 113. 

B. The Record Demonstrates That The EPA’s Decision To Reassign 

Salak To Seattle Was A Continuation Of The Previously 

Contemplated Course Of Action 

Salak’s attempt to establish the requisite causal link by asserting that the EPA’s 

decision to transfer him to Seattle was still pending when he invoked his rights under 

Title VII, and that that decision was made in retaliation for his protected activity (see

Pl.’s Opp’n at 35 (arguing that “reassignment to Seattle was not considered, much less 

initiated, until January 15, 2010”); id. at 37 (maintaining that, if not for his asserting his 

rights under Title VII, the agency would have transferred him “to Philadelphia, . . . 

which would have been perfectly workable for [Salak] and his family”)), fails for at 

least two reasons. 

First of all, the record evidence strongly suggests that the EPA had, in fact, 

already selected Seattle as the locus for Salak’s reassignment by the time he engaged in 

the protected activity. The timing of the announcement supports this conclusion; it is 

hard to fathom that a placement in Seattle could have been conceived of and arranged 

between Salak’s submission of the memorandum on the evening of January 14th and the 

January 15th meeting the following morning at which the transfer plan was disclosed. 
23 

What is more, Deputy Director Parker repeatedly testified under oath (during a related 

EEOC proceeding in August of 2015) that he had personally informed SAC Dillon of 

the decision to transfer Salak to Seattle “[e]arly in the week of January 11th.” (EEOC 

Hr’g Tr. at 9; see also id. at 44–45 (testifying that he told Dillon that Salak would be 

transferred to Seattle “[e]arlier in the week of January 11th”).) Parker also testified that 

Dillon would have lacked authority to inform Salak of the transfer to Seattle during the 

January 15th meeting unless a specific transfer to that office had already been approved 

by senior CID and EPA leadership. (See id. at 8–9.) And, when asked if “there [was] 

any doubt in your mind” that Salak’s “transfer to Seattle was a done deal” before the 

January 15th meeting in Philadelphia, Parker answered that “[i]t had been decided prior 

to that[; i]t was done before that[;]” and “[t]he decision had been made.” (Id. at 

45–46.) 

Parker’s EEOC testimony is consistent with an affidavit that Director Barnes has 

offered, in which she states that, “[a]fter receiving the [final transfer] memorandum 

from SAC Dillon, I consulted with . . . Parker, to see what CID office needed or could 

support another [Special Agent] and I determined that the Seattle, Washington office 

would be the best location for Mr. Salak and CID.” (Barnes Aff. at 5.) Parker’s 

testimony is further corroborated by ASAC Spangenberg’s deposition testimony in a 

related MSPB proceeding, where he too testified that the decision to transfer Salak to 

Seattle was made before Salak submitted the January 14th memorandum; specifically, 

when asked about the draft transfer memorandum that Spangenberg sent to Dillon on 

January 6, 2010, Spangenberg testified that he had discussed Salak’s transfer to Seattle 

with Dillon around the time that he wrote the memorandum, and “had information [to 
24 

the] effect” that the permanent reassignment would be to Seattle, including an 

understanding “[t]hat SAC Dillon, along with Laura Fentonmiller and Deputy Director 

Parker, had knowledge of . . . [Salak’s] reassignment to Seattle.” (Spangenberg MSPB 

Dep. (July 9, 2013), Ex. A to Def.’s Resp. to Pl.’s Statement of Genuine Issues, ECF 

No. 32-2, at 35–38.)11

Salak does little to cast doubt on these sworn accounts from knowledgeable 

supervisors regarding the details of the agency’s reassignment decision. For example, 

while it may be true that Parker stated during a previous deposition that he “could not 

recall precisely when he informed Mr. Spangenberg that Mr. Salak’s reassignment was 

going to be to Seattle” (Pl.’s Opp’n at 36 (citing Parker EEOC Dep. (Apr. 25, 2014), 

Ex. to Pl.’s Statement, ECF No. 20-49, at 27)), Parker’s inability to “recall precisely” 

the exact date of his transmittal of the information to Spangenberg does not contradict 

his repeated and unequivocal assertion that the agency’s decision to transfer Salak to 

Seattle was made before January 14th. Nor does the fact that Dillon and Parker 

“discussed ways to ‘get rid of’” Salak on the morning of January 15th (Pl.’s Sur-Reply 

at 2 (citation omitted)) impact the credibility of Parker’s statement that the agency had 

already decided to transfer Salak to Seattle well before the meeting at which it informed 

 

11 Salak challenges the content of Spangenberg’s testimony in a sur-reply brief that he has sought leave 

of Court to file. (See Pl.’s Mot. for Leave to File Sur-Reply (“Pl.’s Mot. for Leave”), ECF No. 33; Pl.’s 

Sur-Reply.) The EPA opposes Salak’s motion for leave, and the motion is ripe for this Court’s review. 

(See Def.’s Opp’n to Pl.’s Mot. for Leave to File Sur-Reply, ECF No. 34; Reply in Supp. of Pl.’s Mot. 

for Leave to File Sur-Reply, ECF No. 35.) Although sur-replies are “generally disfavored,” Banner 

Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012), this Court finds that the EPA cited to 

Spangenberg’s deposition testimony for the first time in its reply brief, and that allowing the sur-reply 

will not unduly prejudice Defendant. See id. (“In exercising its discretion, the court should consider 

whether the movant’s reply in fact raises arguments or issues for the first time, whether the 

nonmovant’s proposed surreply would be helpful to the resolution of the pending motion, and whether 

the movant would be unduly prejudiced were leave to be granted.”). Therefore, Salak’s motion for 

leave to file a sur-reply is GRANTED, and the Court has considered the arguments raised in the 

sur-reply in this Memorandum Opinion. 
25 

him of that choice. Salak’s contention that absent the protected activity he would have 

been reassigned to Philadelphia, instead of Seattle (see id. at 2–3 (citing Spangenberg 

EEOC Dep. (Mar. 27, 2014), Ex. to Pl.’s Statement, ECF No. 20-51, at 13); id. at 4 

(citing Draft Transfer Mem.)), further mischaracterizes the clear record evidence, which 

demonstrates that the agency’s discussion of a transfer to Philadelphia was in the 

context of a temporary reassignment; nothing contradicts the testimony and 

documentary evidence demonstrating that the agency always intended for Salak’s 

permanent reassignment to be to Seattle (see Spangenberg EEOC Dep. at 13; Final 

Transfer Mem. at 2; see also Jan. 8 Parker-Dillon Email at 2 (supporting Salak’s 

reassignment to “an area office (that needs additional staffing)”)). 

Notably, Salak’s causation-related contentions would be unavailing even if the 

EPA had not definitively determined that he would be sent to Seattle by the eve of the 

scheduled meeting to announce the transfer, because Salak has failed to show that a 

selection of the Seattle office on the day after his January 14th memorandum is at all 

inconsistent with the agency’s previously contemplated transfer plan. See Breeden, 532 

U.S. at 272 (holding that, where protected activity intervenes, there is “no evidence 

whatever of causality” if the adverse action is “along [the] lines previously 

contemplated”); Cruz, 241 F. Supp. 3d at 113 (explaining that the plaintiff must 

demonstrate that his “protected activity [somehow] alter[ed] the course of events” that 

had already been set in motion). Put another way, the plan that Salak’s supervisors had 

crafted clearly involved his “immediate[]” reassignment to Philadelphia on a temporary 

basis, followed by his “permanent[] re-assign[ment] to an Area Office with the need for 

another agent” (Final Transfer Mem. at 2), and Salak has not shown that a proposed 
26 

final transfer to the Seattle office diverged from this plan; say, for example, by pointing 

to evidence showing that the agency had previously decided not to send him to Seattle, 

but somehow changed its mind after he engaged in protected activity. 

 Properly viewed, then, Salak’s contention that “sending him almost 3000 miles 

away” (i.e., to Seattle) was “not even remotely ‘along’ the same ‘lines’” as the plan to 

send him to Philadelphia (see Pl.’s Opp’n at 38) is a red-herring argument that merely 

pertains to the adverse nature of the proposed employment action, and does not speak to 

its consistency with the agency’s predetermined reassignment plan. As such, it is 

entirely beside the point. Even accepting arguendo that a cross-country reassignment is 

more adverse than a transfer to nearby Philadelphia, Salak’s causation burden is to 

establish that the EPA selected Seattle over Philadelphia (or anywhere else, for that 

matter) because of his protected activity—i.e., that the agency changed course with 

respect to what it had previously determined it would do in a manner that gives rise to a 

reasonable inference of retaliation. See Nassar, 133 S. Ct. at 2531–33; Breeden, 532 

U.S. at 272; Cruz, 241 F. Supp. 3d at 113; see also Brown v. Diversified Distribution 

Sys., LLC, 801 F.3d 901, 908 (8th Cir. 2015) (noting plaintiff’s failure to “produce[] 

[any] evidence to rebut” defendant’s affidavit and deposition testimony that the 

plaintiff’s transfer was “discuss[ed] . . . before she requested FMLA leave” (internal 

quotation marks and citation omitted)). But, here, the record is abundantly clear that 

the EPA had planned to transfer Salak to another office, and in fact had already taken 

concrete steps to effectuate that transfer, before Salak submitted the January 14th Title 

VII memorandum, and there is no evidence to indicate that its announcement of his 
27 

transfer to Seattle on January 15th was anything other than a mere continuation of that 

plan. 

Although Salak struggles valiantly to argue otherwise, the bottom line is this: 

courts in this district and elsewhere have routinely rejected any “inference of causation” 

when “the adverse action being challenged is the result of a nondiscriminatory process 

that began before the protected conduct.” Bush v. Engleman, 266 F. Supp. 2d 97, 103 

(D.D.C. 2003) (granting summary judgment on Title VII retaliation claim because “the 

uncontradicted record indicates that the decision to implement the transfer resulted 

from an independent review process that began months before plaintiff’s EEO activity” 

(emphasis in original)); see also, e.g., Weston-Brown v. Bank of Am. Corp., 167 F. 

App’x 76, 82 (11th Cir. 2006) (finding no causal link to establish Title VII retaliation 

because “[t]he record evidence establishe[d] that” the plaintiff’s immediate supervisor 

“informed his supervisors . . . well before the” plaintiff engaged in protected activity 

“that he felt that it would ‘be prudent to remove [the plaintiff] from’” a particular 

account); Mianulli v. Potter, 634 F. Supp. 2d 90, 98 (D.D.C. 2009), aff’d in part, No. 

09-5284, 2010 WL 604867 (D.C. Cir. Jan. 21, 2010) (finding no causal link between 

protected activity and alleged Title VII retaliation the very next day, because “an 

adverse employment action taken after protected activity is not caused by the protected 

activity if the employment action was contemplated prior to the protected activity”); 

Carter v. Greenspan, 304 F. Supp. 2d 13, 30 (D.D.C. 2004) (rejecting Title VII 

retaliation claim due to “a lack of evidence of causation” where “[t]he sworn 

declarations submitted by [the] defendant consistently aver[red] that . . . management 

had decided to fire [the plaintiff]” before he engaged in protected activity, which 
28 

demonstrated that “[the plaintiff’s] supervisors’ dissatisfaction with his performance 

and their intentions to terminate him predated his protected activity” and rendered “his 

retaliatory discharge claim . . . illogical”). And given these well-settled precedents, this 

Court easily concludes that Salak has failed to demonstrate that his protected activity 

was a “but-for caus[e]” of the decision to transfer him to Seattle, Nassar, 133 S. Ct. at 

2533, or that the agency’s selection of Seattle, even if “not yet definitively 

determined,” was not “along lines previously contemplated[.]” Breeden, 532 U.S. at 

272; cf. Samii v. Billington, 195 F.3d 1, 3 (D.C. Cir. 1999) (“Since the ultimate burden 

of persuasion in proving retaliation remains with the plaintiff, summary judgment is 

appropriate when the employee is unable to satisfy this burden.”). 

IV. CONCLUSION 

For the reasons explained above, this Court finds “that there is [no] evidence 

(either of a direct or indirect nature) from which a reasonable jury could find the 

required causal link between” Salak’s protected activity and the threatened transfer to 

Seattle. Jones v. Quintana, 975 F. Supp. 2d 63, 78 (D.D.C. 2013) (internal quotation 

marks and citation omitted), aff’d, 621 F. App’x 7 (D.C. Cir. 2015). Accordingly, and 

on that basis alone, Defendant’s motion for summary judgment will be GRANTED and 

judgment will be entered in favor of Defendant on all of Salak’s claims, as set forth in 

the accompanying Order. 

DATE: September 30, 2017 Ketanji Brown Jackson 

KETANJI BROWN JACKSON 

United States District Judge