UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) LARRY J. SYK

ES, ) ) P laintif f, )

) v. ) Civil Action No. 07-42 (R MC) ) JANET NAP OLIT ANO, Secr etar y , ) Depart m ent of Home land Security, ) Defendan t. ) ) )

MEMORAN DUM OP INION L arr y J

. Sy kes was the Special Ag ent in Charg e of the Secre t Serv i ce detail that protec ted Claudia “L ady Bird” J ohnson, former First L ady of the United States, from April 2003 to September 2005, when he was invol untarily rea ssigned to the pos ition of Assi stant Special Age nt in Charg e at the Secre t Service ’s J .J

. Rowley Training Center. Mr. S y kes complains here that the

rea ssignment was an adver se empl o y ment action due to his rac e, Afric an Americ an. Having

car efully studied the parties’ briefs and voluminous exhibi ts, the Court conclude s that Mr. Sy kes’s

rea ssignment within the Secre t Ser vice was not a

n adver se employ

ment action within the meaning of Title VI I case law and that, even if it wer e, there is a dear th of evidenc e to show prete x t in the fac e of the Secre t Service ’s leg itimate, non-discriminatory rea sons for the transfe r. Summary judgme nt will be g rante d to the Def endant. I

. F ACTS Wit hout a doubt, L arr

y J . Sy kes has had an impressive caree r i n the S ecr et S ervic e(“Ser

vice” ). He joined the Service as a GS-7 Special Ag ent on J une 13, 1 983. Be cause of the

1

n at u re o f the Secre t Service , on his first day he signe d an “Ac knowledg ement of Employ ment Reassig nment Conditi on,” acc epting “as a condition of employ ment that [he] may be g eog raphic ally

rea ssigne d at the discretion of the Secre t Service ” throug hout his car eer . Def .’s Mot. [Dkt. #32], Ex

. 3, Sy kes Acknowle dg ment (“A cknowledg ment”). Mr. Sy kes first worke d in the I ndianapolis Field Offic e unti l S ep t em b er 1 9 87, rising to a GS-12 along the way . I n September 1987, he was

rea ssigne d and g eog raphic ally reloc ated to the Western Protective Division, wher e he was promoted
to the GS-13 level. I n ear ly 1992, at his reque st, he was transfe rre d to the L os Ang eles Field Offic e. L ess than a y ear later, Mr. Sy kes transfe rre d to the Santa Ba rbar a Resident Offic e, which falls under the L .A. office and did not require that he move. I n late 1994, at his request, he tra nsfer red to the Chicag o Field Of

fice

. I n 1998, Mr. S y

kes requested and rec eived a transfe r t o the trainingdivision of t he Secre t Service so that he would be in “the car eer path that would lead to additional promotion within the Secr et Service .” De f.’s Mot., Ex. 1, Deposition of L arr y Sy kes (“ Sy kes De p.”) 112. In 2000, Mr. Sy kes bid for and rec eived a promotion to a GS-14 Assistant to the Special Ag ent in C harg e (“A SAI C”) position on the Vice Presidential Protective Division, wher e he was eng ag ed in training ag ents. He bid for and rec eived a rea ssignment in 2002 t o a GS -1 4 AS AI C position in the

Since 2 0 0 1 , t h e Secre t Service has been a constituent ag ency of the Depa rtment of 1 Homeland Security , whose Secre tary , J anet Napolitano, is sued in her officia l capa city

. The Service is a law enfor ceme nt ag ency with two primary duties: (1) the prote ction of the P resident and Vice President and their families, including former Presidents and Vice Presidents and their families, and visiti ng fore ign heads of state, 18 U.S.C. § 3056(a) , and (2) the investigation and arr est of individuals who violate criminal l aws rela ting to, inter alia , g overnme nt bonds, coins, obliga tions, elec tronic fund transfe rs, cre dit and debit car d fr aud, false identification documents, and fra ud committed ag ainst financia l insti tutions. 18 U.S .C. § 3056(b). -2-I nvestig ative Support Division in Secre t Service Hea dquarte rs in Washington, D.C. Mr. Sy kes then bid for and rec eived a promotion to a GS-15 Special Ag ent in Charg e (“SAI C”) position in 2003 to head the J ohnson Protective Division (“JP D”) , which provide d protec tion to L ady Bird Johnson. M rs. J ohnson, the widow of former President L y ndon Ba ines J ohnson, was in her nineties at the time. Ther e we re no dire cted thre ats towards Mr s. J ohnson and the detail was very slow-pac ed. As SAI C, Mr. Sy kes’s duties wer e to overse e “the operations, budg et, and secur ity of J PD

. . . as well as all p er s o n n el ac tions rela ting to its operations.” Compl. ¶ 18. Mr. Sy kes supervised one GS-14 ASAI C and nine to eig hteen other employ ees, which included Special Ag ents and specia l office rs. Sy

kes Dep. 157; Compl. ¶ 18. The J PD worke d at three lo ca t ions: the field office in Austin, Texas; Mrs. J ohnson’s Austin residenc e located approximately six miles from the field office ; and the L y

ndon Ba ines J ohnson ranc h located approximately fifty miles awa y from the field off ice. As SAI C of the J ohnson Protective Division, Mr. Sy kes repor ted direc tly t o the Deputy Assistant Direc tor (“D AD”) of the Off i ce of Protective Oper ations, Thomas Grupski. Starting in J une 2003, his second line supervisor was Assistant Direc tor (“A D”) of the Of fi ce of Protective Ope rations, Mark Sullivan. 2

A. Off ice Inspection A routine offic e i n spection was conducte d on the J ohnson Protective Division in Dec ember 2004. Mr. Sy

kes was attending a family funer al out of town and was not prese nt during the wee k-long inspection. The lead inspector informed Mr. Sy kes, in a close-out telephone confe rence, that his rec ommended rating would be “g ood.” Pl.’s Opp’n [Dkt. #37] (“O pp’n”) , Mr. Sullivan is currently the Dire ctor of the Secre t Service. 2 -3-Ex cer

pt s o f S y k es Deposition (“Sy

kes Ex cer pts”) 264-65. Howeve r, the final 2004 I nspection

3 R ep o rt ref

lects that the J PD rec eived an overa ll evalua tion of “F air.” Def .’s Mot., Ex

. 4, 2 0 0 4 I nspection Report (“2004 I nspection Report”) 5. I n the Manag ement Section of the repor t, the J PD

rec eived a “Rec ommendation,” which is the lowest rating a division can rec eive. Id. Under the prior SAI C, the J ohnson Protective Division’s manag ement had been rated “Ve ry Good” in a 2002 inspection repor

t. The 2004 I nspection Report stated that “[e]mpl oy ees wer e critica l of th e chronic absenc e of supervisors during in-district protec tive motorcade movements, particula rly movements t o t h e L y n don Ba ines J ohnson (L BJ) Ranch” ; that “[e]mpl oy ees wer e critica l of the lack of a consistent supervisory prese nce at the Austin residenc e and the L BJ Ranch when the protec tee is in residenc e”; and that “[e]mpl oy ees wer e critica l of the perc eived lack of adequate interper sonal communication betwee n supervisors and detail personne l, as well as the fac t that most communication is acc omplished throug h e-ma il and written direc tives.” Id. at 5-6. Fur ther, the 2004 I nspection Report stated that “[i] n conce rt with the comments offe red by division personne l, and to

a g rea ter extent as a result of the revie w of protec tive operations, the inspection team conclude d that J ohnson PD supervisors have ex erc ised insufficient direct oversight of personnel a nd the di vision

as a w hole.” Id. at 6. As a r esult, “[t] he inspection team deter mined that the SAI C a

nd ASAI C of the J ohnson PD a

re not sufficiently

eng ag ed in the daily

activities of the de tail,” id. at 12, and that
t h ere was “cle ar indication of sick leave abuse.” Id. at 10. The latter was cause d by Mr. Sy kes’s
custom of allowing S pecia l Ag ents to supplement their annual leave with sick lea v e. S y k es Dep.

P l ai n tiff and Def

endant attache d differ ent excerpts from the deposition of Mr. Sy kes. 3 Plaintiff’s excerpts are filed as attachme nts to his Opposition and can be found at Docke t #37-5 and #37-6. -4-276-78. The 2004 I nspection Report rec ommended that “the SAI C and ASAI C urg ently re- evalua te

and drastica lly improve upon their deg ree of persona l participa tion in protec tive movements, as well

as their level of interac tion with and direc t supervision of division employ ees.” 2004 I nspection Report 6. The lea d i n s p ector contac ted Mr. Sy kes twice by telephone afte r their initial

co n v er s at i o n. First, about a wee k afte r the inspection, the lead inspector told Mr. Sy kes that the

overa ll J PD rating was being downg rade d from “g ood” to “fa ir” afte r a briefing s es s i o n wi t h AD Sulli van and DAD Grupski. Sy kes Ex cer pts 383-384. Second, the lead inspector later informed Mr. Sy kes that af

ter further conversa tion with DAD Grupski, the J ohnson Protective Division’s rating would be further downg rade d to a “fa i r wi t h re co m m endations.” Id. at 384-86. Having the “re commendations” attache d to the rating was a downg rade in itself beca use it meant the J PD would have to be re- inspected. Id. at 386.

During an in-person briefing in Washington, D.C., Mr. Sy kes was advised of the results of the inspection. Id. at 268. Mr. Sy kes was counsele d in writing reg arding the results of the inspection and of the need f or improvement. Mr. Sy

kes dra fted a

memorandum to the Dire ctor of the Secre t Service outlining specific corr ective actions the J ohnson Protective Division would adopt
to respond to the not ed deficienc ies

. He clear ed drafts of t his document with DAD Grupski, who
eventua lly approve d the final memorandum. Mr. Sy kes indicated that supervisory block cover ag e would be schedule d for eac h wee kend but that additional cover ag e would require overtime of more t h an eig ht hours eac h wee kend. DAD Grupski direc ted Mr. Sy kes to remove the lang uage

conce rning overtime. Id. at 271-273. I n the end, DAD Grupski order ed Mr. Sy kes to submit a final version of the memo that Mr. Sy kes opposed. Id

. There afte r, Mr. Sy kes worke d overtime without

-5-pay

ment. Id. at 274-75.

B. Th e Special Insp ect ion I n late November 2004, Mr. Sy kes met with Special Ag ent (“SA” ) Br ian McKe nna, a J PD ag ent, at SA McKe nna’s r equest. SA McKe nna informe d Mr. Sy kes that one of t he female ag ents on the J ohnson Protective Division did not want a particula r male ag ent to be the Scheduler , who as s igns the various ag ents to their shifts. The parties do not ag ree on whether SA McKe nna provided Mr. Sy

kes with a rea son for this reque st, but it is not materia l to dispositi on of the motion. What is clea

r is that Mr. Sy

kes there afte r direc ted that the two agen t s n o t b e s chedule d to work toge ther and that the male ag ent not be the Scheduler , as Mr. Sy kes had orig inally intended. Sy kes Dep. 238-244. The next day Mr. Sy kes told the fema le ag ent that he had g rante d her reque st that the male ag ent not be the Scheduler

. Id. at 244. Mr. Sy kes also met separ ately with the male ag ent and the fema le ag ent to a scer

tain the motivation for the reque st. Mr. Sy kes states that neither spoke of any inappropria

te beha vior. Sy kes Excerpts 242-45. That was not the end of

the matter. O n Fe bruar

y 4, 2005, DAD Rebecc a Ediger in Secre t Service Hea dquarte rs rec eived an email from SA Scott Kelly of the J ohnson Protective Di vision alleg ing that a male ag ent had exposed himself to a female ag ent whil e on d u t y , t h at t h e incident had been reporte d to Mr. S y kes, and that no corr ective a ction had occ urre d. Def .’s M ot., Ex

. 10, Email from S A Kelly

. As a result, a special inspection of t he J PD was undertaken during Fe bruar y 8-10, 2005, which involved, among other things, interviews with all ag ents on the detail. During these interviews, SA McKe nna stated that he had advised Mr. Sy kes during their November 2004 meeting that a male ag ent had exposed himself to a fema le ag ent on two separ ate occa sions. Mr. Sy kes denies that SA McKe nna repor ted any such event and states that SA McKe nna only told

-6-him that the fema le ag ent was not comforta ble working with the male ag ent. When interviewe d, the

acc used male ag ent admitted that he had exposed himself to the fema le ag ent on two occa sions; he was suspende d for 60 da

y s as discipline. C. Moc k Mem oranda I n ear ly April 2005, mock memoranda and a g un rang e pos t er with plastic knives attache d wer e discove red at the J ohnson Residence Command Post . Tape d to the back of the g un rang e poster wer e plastic knives with the t erms “GS-14,” “GS-15,” “EEO,” and “T #” (transf er number) writ ten on them. The poster had a caption: “F un For the Whole Fa mily : A New USSS Game ‘Stab Your Way to the Top.’” Opp’n, Ex

. 11, May 2005 Fa ct Finding Mem. (“2005 Fa ct Finding ”) 35. The fake memoranda — s o m e o f which wer e potentially threa tening — spoke of various issues including workplac e violence , Bible verse s, and a “ Four Step Get Over

I t Process” 4
to alleg edly help Service employ ees deal with a “g rowing trend” of supposed broken promises. Mr. 5 Sy kes contacted DAD Grupski wit h respe ct t o these issues. He then dra fted a nd direc ted a memo dated April 11, 2005, to the Chief of the Personnel Division and to AD Sulli van stating t h at SA

One memo include d the following lang uag e: 4 “I t is impossibl e to deter mine who wil l assault cowor kers, but cons id e r in g the strong corr elation betwee n Service employ ees and the prec ursors of workplac e vi o l en ce, and the easy acc ess of ag ents to lethal wea pons, this [si c] Service deter mined that something must be done to mitigate the likelihood of [a] violent situation.” 2005 Fa ct Finding 39. I n speaking of the “steps” to g et over the alleg ed broken promises, the memo define d two 5 steps as “[d] enial - [t ]he state of ref using to acc ept that a senior member of my Secre t Service family could trea t me like a bastard step child born of a Mong olian g ang bang [] ” and “[a]nger - [t ]he desire to lash out at the above member of my ‘family ’ throug h leg al, cong ressional, verba l, phy sical or any combination of the a fore mentioned means.” 2005 Fa ct Finding 40. -7-McKe nna “appe ars to be suffe ring from a psy chotic disorder” and identify ing SA Mc Kenna as the

individual who had “appa rently authore d” all of the mock memoranda and whose written comments

wer e conta ined on the g un rang e poster. O pp’n, Ex. 12, S y kes April 11, 2005 Memo 1, 9. However , on April 25, 2005, SA Michae l Moore, another Special Ag ent at the J ohnson Protective Division, sen t an em ai l to DAD Grupski admitting that he had authore d the majority of the five mock memoranda

. A fac t-finding team consisting of DAD Grupski and ASAI C Robert Bust e r w e n t to the J ohnson Protective Division on April 26, 2005 to interview the employ ees. During the investigation, SA Moore told them that he had cre ated five of the six mock memoranda

. SA Moore stated that the m ock memoranda, which wer e date d April 1, 2005, wer e intended to be

an April Fool’s Day joke. SA McKe nna acknow ledg ed that he had cre ated the six th memo, entitled “F our Step Get Over I t Process.” SA Kelly admitted to the investigators that he had cre ated the g un rang e tar g et poster with the plastic knive s.

Mr. Sy kes was briefe d about the fac t-finding eff orts and its conclusions on April 27, 2005. I mmediately there afte r, in Mr. Sy kes’ s p re s en ce, DAD Grupski called AD Sulli van and briefe d him on the results of the fac t-finding investigation. Mr. Sy kes then voiced his objections to the findi ng s to AD S ullivan. At th e en d of t he conversation, AD Sulli van advised Mr. S y kes t hat he would be r eassig ned.

D. Com parators On April 28, 2005, Mr. Sy kes was rea ssigne d from his SAI C position to the position of ASAI C at the J .J . Rowley Training Center ( “Tra ining Cente r”) in Ma ry land. The rea ssignment

was from one Supervisory Criminal I nvestig ator GS-15 position t o another Supervisory Criminal I nvestig ator GS-15 position. There fore , Mr. Sy kes reta ined the same pay and g rade

. Mr. Sy kes was

-8-fully compensa ted for the expenses rela ted to his reloc ation from Texas to Mary land. Mr. Sy

kes was not the only

GS-15 consider ed for

the ASAI C positi on at the Training Center. Two ot her GS-15s bid on the same position that Mr. Sy kes was ultimately g iven: one was a GS-15 SAI C and one was a GS-15 I nspector. D ef.’ s Mot., Ex . 16, Prewitt Dec l. 3.

There wer e twenty -two ASAI Cs stationed at the Training Center betwee n J anuar y 1, 2000 and Dec ember 31, 2005. Def .’s Statement of Mat. Fa cts (“D ef.’ s Fa cts”) ¶ 59. Of these twenty -two ASAI Cs, four had been SAI Cs imme d iately prior to their assig nment to the Training Center as ASAI Cs. Id. One of th es e i n d i v i d u al s had been the SAI C of the Offic e of Protective Oper ations. Id. Wit h reg ard to car eer development, in subsequent assig nments, five of the twenty

two ASAI Cs have serve d or are serving as Deputy Assistant D irec tors and one is curr ently serving as an A ssistant Director in the O ffice of I nvestig ations. Id. ¶ 60. Of the twenty -two ASAI Cs, ten

wer e acc epted into the Senior Ex ecutive Service Candidate Deve lopment P ro gra m and four wer e place d into SES-level positions. Id. ¶ 61. Of those who wer e place d into SES-level positions, one had been an SAI C in the Offic e of Administration immediately prior to becoming an ASAI C at the Training Center. Id.

Since his re as s ignme nt to the Training Center, Mr. Sy kes has not bid for

rea ssignment. Sy

kes Dep. 349. Mr. Sy

kes explains that he has “no rea son to believe that [nowDirec tor Sulli van] would be rec eptive

. . . to assig ning me to any other position.” Sy kes Dep. 350. Howeve r, Mr. Sy

kes has not spoken w ith Director Sullivan about the possibility of rea ssignment. Id. I n the four y ear s since his r eassig nment, Mr. Sy kes has not compete d for the Senior Ex ecutive Service Candidate Deve lopment Prog ram. Def .’s Fa cts ¶ 72. Thoug h he has not actively soug ht outside employ

ment, Mr. Sy

kes has rec eived approximately four job of fer s since his r eassig nment

-9-from the SAI C of the J ohnson Protective Division to the ASAI C at the Training Center. Sy kes Dep. 349, 355-57. I n his curr ent assig nment at the Training Center, Mr. Sy kes direc tly supervises four GS-14s and is the second- line supervisor of a p p r o xim a te ly tw e n ty -four employ ees. Sy kes Dep. 352- 6 54. Wh i l e he was the S AI C at t he J ohnson Protective Divisi on, Mr. S y kes supervised one GS-14 ASAI C and approxim at el y n ine Special Ag ents and four specia l office rs. Sy kes Dep. 157-58. Currently , Mr. S y

kes oversees the Training Manag ement Branc h, which consists of fo u r differ ent Sections: the Administration Section, the Mission Resear ch Policy De velopment Section, the Reg istrar Section, and t h e Student Affa irs Section. This branc h administers and overse es the Service ’s administrative proce dures, policy developme n t , an d student aff airs as well as the coordina tion and reg istration of all internal and external training

. On J uly 19, 2005, Mr. Sy kes filed

a formal administrative complaint with the Secre t Service , alleg ing discrimination on acc ount of his

rac e. 7 L ady Bird J ohnson passed awa y on J uly 11, 2 0 0 7. The SAI C of the J ohnson

I n his deposition, Mr. Sy kes testified that he supervises a total of approximately 24 6 em p l o y ee s at the Training Center. Sy kes Dep. at 352-54. I n an ear lier aff idavit, he stated that he supervises approximately 32 employ ees. Def .’s Mot., Ex

. 18, Sy

kes Dec l. 3. Fo r purposes of compar ison to his prior position as the SAI C at the J ohnson Protective Division, the differ ence is not materia l. One a spect of Mr. Sy

kes’s c omplaint concer

ned a ne w pay

sy stem, commonly

known as 7 HR MAX, see Compl. ¶¶ 59, 74, but that new sy s t em h as n o t b ee n implemented and there are no plans to do so. See Def

.’s Mot., Ex

. 22, HR MAX Rescission Notice; Def .’s Fa cts ¶ 76. This Court enjoined implementation of HR MAX in a separ ate matter. See Nat' l Treasury Employe es Union v. Chertoff , 385 F. Supp. 2d 1 (D.D.C. 2005); see also Nat' l Treasury Employe es Union v. C hertoff , 452 F.3d 839 (D.C. Cir. 2006) (af firming in part and upholding the injunction of HR MAX). Thus, the Court will ignor e arg uments conce rning the HR MAX sy stem as a source of potential economic injury to Mr. Sy

kes. -10-Protective Division at the time of her death was rea ssigne d to an ASAI C position. Def .’s Fa cts ¶ 70. The Johnson P rotec tive Division was then disbanded. II. LEGAL STANDARD Under Rule 56 of the Fe dera l Rules of Civil Procedur e, summary judgme nt must be g r a n te d w h e n “ th e p le a d in g s , depositions, answe rs to interrog atories, and admissions on file, toge the r with the aff

idavits, if any , show that there is no g enui n e issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” Fe d. R. Civ. P. 56(c) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). More over, summar y judgme nt is proper ly g rante d ag ainst

a party that “af

ter adequat e t i m e for discovery and upon motion

. . . fails to make a showing

s ufficie nt to establish the ex istence of an element essential to that party ’s case, and on wh i ch t h at party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). To deter mine which fac ts are “mater ial,” a court must look to the substantive law on which eac h claim
rest s . A n derson , 477 U.S. at 248. A “g enuine issue” is one whose resolution could establish an element of a claim or defe nse and, there fore , aff ect the outcome of the action. Celotex , 477 U.S. at 322. I n ruling on a motio n for summary judgme nt, the court must draw all justifiable infere nces in the nonmoving party ’s favor and acc ept t h e n o n m o ving party ’s evidenc e as true. A n d er s o n , 4 7 7 U.S. at 255. A nonmoving party , howeve r, must establish more than “the mere exis tence of a scintilla of evidenc e” in support of its position. Id. at 252. To preva il on a motion for

s u m m ar y j u dg ment, the moving party must show that the nonmoving party “fa il[ ed] to make a showing sufficie nt to establish the exis t en ce of an element essential to that party ’s case , and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. By pointing to the

-11-absenc e of evidenc e p ro ff er ed by the nonm oving party , a movi ng party may succe ed on summary judgme nt. Id. I n addition, the nonmoving party may not rely solely on allega t i o n s o r conclusory
statements. Gree ne v. Dalton , 164 F.3d 671, 675 (D.C. C i r. 1 9 9 9 ). R ather, the nonm oving party
must prese nt specific fac ts that would enable a rea sonable jury to find in its favor

. Id

. at 675. I f the evidenc e “is mere ly colora ble, or is not signific antly probative, summary judgme nt may be g rante d.” Anderson , 477 U.S. at 249-50 (c itations omi tted). III. ANALYSIS Title VI I prohibits an employ er from discriminating on the basis of rac e, color, relig ion, sex, o r n at ional orig in in hiring decisions, in compensa tion, terms, and conditions of employ ment, and in classifying employ ees in a way that would adver sely aff ect their status as employ ees. See 42 U.S.C. § 2000e-16. Under Title VI I , a plaintiff must first establish a prima fac ie

case of rac ial discrimination by showing that “(1) [he] is a member o f a p ro t ec ted class; (2) [he] suffe red an adver se employ ment action; and (3) the unfavor able action g ives rise to an infere nce of discrimination.” Royall v. Nat' l Ass'n of Letter Carriers , 548 F.3d 137 (D.C. Cir. 2008) (noting that the burden- shifting fra

mework established in McD o n n ell Douglas Corp. v. Gree n , 411 U.S. 792 (1973) a pplies in employ

ment discrimination case s). Af ter a plaintiff puts forth a prima fac ie case , the burden shifts to the defe ndant t o “ar ticulate some leg itimate , n o ndiscriminatory rea son” for the employ er’ s action. Tex. Dep’ t of Cmty. Affairs v. Burdine , 450 U.S. 248, 252-53 (1981). Once the defe ndant has “asse rted a leg itimate, non-discriminatory rea son for the decision, the district c ourt need not -- and should not

-- decide whether the plaintif f ac t u ally made out a prima fac ie case under McD onnell Douglas .” Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008). At this point the

-12-McD onnell Douglas fra mework melts awa

y and the rele vant question become s whether the plaintiff has “produc ed sufficie nt evidenc e for a rea sonable jury to find that the empl o y er ’s asserted nondiscriminatory rea son wa s n o t the actual rea son and that the employ er intentionally discriminated ag ainst the employ ee on the basis of race .

. . .” Brady , 520 F.3d a t 494; see also Kersey v. W ash. Metro. Area Transit Auth. , 586 F.3d 13, 17 (D.C. Cir. 2009) (noting that once defe ndant offe rs a non-discriminatory rea son for employ ment action, “to survive summary judgme nt the plaintiff must show that a reasonable jury could conclude from all o f t h e ev i d ence that the adverse employ ment decision was made for a discriminatory [or reta liatory ] rea son.”) (quoting Lathram v. Snow , 336 F.3d 1085, 1088 (D.C. Cir. 2003)).

Although Mr. Sy

kes i s a member of a protec ted class as an Africa n Americ an, it is disputable whether he has demonstrated that his rea ssignment constitut es an adver se employ ment action under Title VI I

. Howeve r, this inquiry is mostly irrele vant at this stag e beca use the Def

endant has offe red a justification f or its de cision to r eassig n Mr. Sy kes. There fore , the ce ntral question is whether Mr. Sy

kes has provided sufficie nt evidenc e for a rea sonable jury to find that the Def endant’ s stated rea sons for his rea ssignment wer e a mere prete x t for discrimination. See Brady , 520 F.3d at 494. The Court f inds tha t Mr

. Sy

kes has not rebutted the Ser vice’ s proffe red r easons f or his rea ssignment. The ample rec ord supports the Service ’s asser tion that Mr. Sy

kes was rea ssigne d based on the perc eptions of his first and second line supervisors that he had been less than eff ective manag ing the rela tively small J ohnson Protective Division. Then-A D Sulli van decide d to rea ssign Mr. Sy kes afte r the disappoint ing repor t from the 2004 office inspection of the J PD, the sexual hara ssment incidents and m an agement’s response , low morale demonstrated by the mock

-13-memoranda and g un rang e targ et, and Mr. Sy kes’s acc usation that one of his ag ents had eng ag ed in misconduct cause d by a psy chotic disorder pr ior to any substantive investigation. Only suspicion,
not evidenc e, supports Mr. Sy kes’s arg ument that his transfe r to the Training Center constituted an adver se action based upon rac e. Mr. Sy kes fails to demonstrate a g enuine issue of materia l fac t that the Service ’s rea ssignment of him was a mere prete x t for rac ial discrimination. Summary judgme nt will be g rante d to the Def endant. A. The Reassignm ent to t he Trainin g Cente r Was Not A n Adverse Em ployme nt Action 8 I n order to constitute an adver se action that is subject to redre ss under Title VI I , an employ ee must experience , due to his protec ted status, a “sig nificant chang e in employ ment status, such as hiring , firing , failing to promote, rea ssignment with signific antly differ ent responsibilities,

or a decision causing a signific ant chang e in benef its.” Taylor v. Small , 350 F.3d 1286, 1293 (D.C. Cir. 2007). “[M] ere idiosy ncra cies of persona l pref

ere nce are not sufficie nt to state an injury

. . . . Purely subjective injuries, such a s dissatisfaction with a re assig nment . . . or public humiliation or

The Service has provided a leg itimate, non-discriminatory rea son for its rea ssignment of 8 Mr. Sy kes, there fore , whether Mr. Sy kes has established his prima fa cie c ases of discrimination is not the fundame ntal question. See Brady , 520 F.3d at 494. Although analy sis of whether Mr. Sy kes has demonstrated an adver se employ ment action may be unnece ssary , see, e.g., Dews-Miller v. Clint on , 2010 U.S. Dist. L EXI S 41288 *54-55 n. 18 (D.D.C. Apr. 27, 2010) (for eg oing an analy sis of whether plaintiff had established an adver se employ ment action — althoug h sug g esting as much

— and instead proce eding direc tly to consideration of whether discrimination was proven) ; Kersey v. W ash. Metro. Area Transit Auth. , 533 F. Supp. 2d 181, 197 (D.D.C. 2008) (by passing analy sis of prima fac ie case in g ranting summary judgme nt as plaintiff failed to rebut the defendant’s nondiscriminatory justification for its conduct) , this discussion p ro v i des a further rationale for the g ranting of sum mary judgme nt and g reater c ontext as to whethe r the e vidence supports a claim of discriminati on. See Royall, 548 F.3d at 144 (noting that a court “must deter mine whether a rea sonable jury could infer discrimination based on the prima fac ie case , the plaintiff’s challeng e to the employ er’ s proff

ere d justification, and any other evidenc e of discrimi n at i o n ”) (quotations omitted). -14-loss of reputa tion

. . . are not adver se actions.” Forkkio v. Powell , 306 F.3d 1127, 1130-31 (D.C. Cir.

2002) (c itations omi tted).

A latera l transfe r — even to another state — that is unacc ompanied by a diminuti on in p ay , b en efits, or signific ant responsibilities will not g ener ally rise to the level of an adver se employ m en t ac tion. See Burlington N. & Santa Fe Railw ay Co. v. W hite , 548 U.S. 53, 71 (2006) (finding that “re assig nment of job duties is not automatically actionable ”). For a latera l tr ansfe r to constitute an adverse action i t must impose “mater ially adver se conse quence s aff ecting the t erms, conditions, or privileg es of employ ment or future employ

ment opportunities such that a rea sonable trier of fac t could find objectively tang ible harm.” Forkkio , 306 F.3d at 1131

. T h er ef o re , even without a dim inution in salary , g rade level, or benef its, a lateral transf

er c an constitute an adver se action if the new responsibilities a re suf ficiently less important. See Czekalski v. Peters , 475 F.3d 360, 364 (D.C. Cir. 2007). The fac t that job duties may be differ ent or less desirable is not enoug h;
t here must be “sig nificantly differ ent — and diminis hed — supervisory and prog rammatic responsibilities.” Id. (quotations omitted). I n o t h er wo rd s , a “tra nsfer that does not involve a demotion in form or substance, cannot rise to the level of a materia lly adver se employ ment action.” Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); see also Stewart v. Evans , 275 F.3d 1126, 1134 (D.C. Cir. 2002) (finding that “[a]n employ ment decision does not rise to the level of an actionable adver se action

. . . unless there is a tang ible chang e in the duties or working conditions constituting

a materia l employ

ment disadvantag e”) (citation omitted); Baloch v. Kempthorne , 550 F.3d 1191, 1197 (D.C. Cir. 200 8 ) (f

i n d i n g no adver se action wher e plaintiff’s new responsibilities “did not constitute qualitatively

inferior work re quiring any

less skill or knowledg e”)

. Mr. Sy kes ar g ues that this particular rea ssignment mee ts the leg al def initions of an

-15-adver se employ ment action, despite the simil arity of his pay and benef its, beca use his repor

ting 9 chain is longe r and the “cha ng e in title alone — from SAI C to ASAI C — is quite signific ant in the Secre t Service , a hiera

rchic al org anization wher e titles denote an ag ent’s standing and power . . . .” Opp’n. 25-26. The longe r repor ting chain — first to the Deputy SAI C of the Training Center, second
to the SAI C of the Training Center, and third to the DAD for Training , instead of repor ting direc tly
to the DAD fo r P ro t ec tive Oper ations — does not, by itself, demonstrate any thing but the org anization of the Secr et Service

. Only if Mr. Sy kes can demonstrate that his curr ent position entails, inter alia , few er signific ant responsibilities, few er high- g rade d d i re ct repor ts, or few er promotion opportunities, might the longe r repor ting chain in thi s p a

r ticular ag ency , for this particula r assig nment, take on signific ance . Fur thermore , althoug h the Service might “lend a lot of cre dence
to titles,” Opp’n, Sulli van Dep. 152 , the De fendant has demonstrated that Mr. Sy kes is one of 1 0

sever al who serve d as an SAI C and then went on to an ASAI C positi on. See Def .’s M ot., Ex

. 21, O’Donnell Dec lara tion. I n fac t, the move from an SAI C to an ASAI C does not ap p ea r t o b e 1 1

uncommon, nor does the rec ord show that such a move would nece ssarily come with a

ny attache d stigma.

Mr. Sy

kes’s base pay as a GS-15 rema ins the same afte r his r eassig nment. I n fac t, due to 9 a cha ng e in locality , Mr. Sy

kes’s a nnual salar

y incre ased slig htly

from $137,600 to $142,840. Found a t Docket #37- 5. 1 0 Mr. S y

k es complains that the Def endant improperly introduces evidenc e of the 1 1 assig nments and rea ssignments of other SAI Cs without having produce d that data during discovery

. Opp’n 36-37. Such a complaint is a cana rd. Mr. Sy kes and his experience d counsel wer e notified in the Def endant’ s initial disclosures that a personne l repr esenta tive with knowled ge of the b id d in g/r e assig nment proce ss would have useful information. Specifica lly , Def endant id e n

ti f ie d M s . O’Donne ll as one of the people who contributed information to Def endant’ s interrog atory response s. There was no fa ilure on De fenda nt’s part. Mr. Sy

kes did not follow these lea ds. -16-Recog n iz in g th e s e le g al require ments, Mr. Sy kes arg ues that his duties at the Training Center are “g reatly diminis hed” from his prior position. Opp’n 26. Whi le it is true that his duties have definitely changed , it cannot be said that they are “gr ea t l y d i m inished.” Whil e Mr. Sy kes enjoy ed operational autonomy as the SAI C of the J ohnson Protective Division, it was a quiet assig nment, with no direc t thr eats to an elder ly , ill person, with a small c omplement of ag ents. At the J ohnson Protective Division, Mr. Sy kes supervised an ASAI C a nd approximately nine Special Ag ents and four specia l office rs, wher eas at the Training Center, Mr. Sy kes direc tly supervises four GS-14s and is the second- line supervisor of approximately twenty -four employ ees. Although Mr. Sy kes may pref

er to supervise Spe ci al Ag ents, see Opp’n 31, this chang e does not repr esent signific antly

diminis hed super

visory responsibilities. Mr. Sy kes now direc ts four divisions with overal l responsibility for the Service ’s administrative proce dures and policy development for the entire Training Center, as well as student affairs and the reg istrar. Def .’s Fa cts ¶ 66. I t encompa sses training for all of the Service ’s employ ees — numbering betwee n 6,500 and 6,700 — from Special Ag ents and Uniformed Division Offic ers to administrative, profe ssional and technica l staff. Id. Whil e Mr. Sy kes may have “no roll in conducting training , developing curr iculum, or making policy rela ted to the Training Center,” Opp’n 31, and may only do administrat i v e p ap er wo rk, id. , the rec ord fails to establish that Mr. Sy kes’s responsibilities have been “g reatly diminis hed.” Whil e the scope of his prese nt responsibilities may not be as satisfy ing to Mr. Sy kes as leading a prot ective detail, it cannot objectively be said that his prese nt duties are any less critica l to the mission of the Secre t Service or that his responsibiliti es have been sig nificantly diminis hed. Reg arding his promotion possibiliti es, Mr. Sy kes arg ues that his c urre nt position is

-17-“much less visible” than his prior position as SAI C of a protec tive division. Opp’n 26. He contends

that the protec tive work of t h e S ec re t Service is the more prestig ious work in the ag ency and,
t h er efor e, his rea ssignment from a protec tive detail to the Training Center “wa s an eff ective demotion in terms of his supervisory repor ting relationships, title, duties, and vis ibilit y within the ag ency .” Opp’n 26-27. Mr. Sy k es ci t es himself for these propositions. Id. The Court does not disag ree that an invol untary transfe r from the J PD to the Training Center mig ht have a ffe cted Mr. Sy kes’s standing and promotion opportunities within the Secre t Service but there is no objective or historical evidenc e to support this proposition. SAI Cs have become ASAI Cs at the Training Center and other ASAI CS within the Training Center have cer tai n l y advanc ed within the Service

. Mr. Sy kes has completely failed to test the question by apply ing f

or promotion or SES consider ation. There is simply nothing in the record to sug g est that an assig nment to the Training Center is an obstacle to a car eer within the Service , and nothing in M r. S y k es’s car eer since that

rea ssignment sugg ests that he is barr ed fr om further advanc ement. His reviews have rang ed from

acc eptable to exemplary

. Opp’n, Ex

. 13, Sy kes Reviews. Mr. Sy

kes’s subjective belief that he
cannot further succe ed is insufficient t o demonstrate that the rea ssignment was an adver se action when the e vidence indicates other wise. 1 2

Mr. Sy kes arg ues that he “lost pay ,” Opp’n 32-33, as a result of the rea ssignment beca use 1 2 he is no longe r elig ible for an SAI C bonus and he is subject to Mary land State income tax. Plaintiff admits that his rea ssignment “did not adver sely chang e his base pay .” Compl. ¶ 51. There is no such thing as an SAI C bonus; Mr. Sy kes rema ins as elig ible now as he was at the J PD to rec eive awa rds and he has, in fac t, rec eived multipl e awa rds since his rea ssignment. See Reply [Dkt. #44], Ex

. 38, Br own Dec lara tion. Finally , the impact of state income taxes has never been rec og nized as adver se and will not be so rec og nized here , espec ially as Mr. Sy kes ag ree d upon hire that he could be rea ssigne d any

wher e throug hout his care er. -18-B. Th ere Is No Evid ence of P ret ext The Court must look to whether a rea sonable jury could conclude from the evidenc e that the Service ’s justification for Mr. Sy kes’s rea ssignment was disinge nuous and that his rac e was the true motivator. To prove prete x t, a plaintiff must articula te specific and “sig nificantly probative” evidenc e that a defe ndant’s prov i d ed re as o n s wer e false. See Sharpe v. Bair , 580 F. Sup. 2d 123 (D.D.C. 2008); see also Burke v. Gould , 286 F.3d 513, 520 (D.C. Cir. 2002) (finding that summary judgme nt may b e grante d if a plaintiff’s evidenc e of prete x t is “mer ely colora ble” or “not signific antly probative” ). Ba sed on the rec ord, Mr. Sy kes has failed to do so. Assuming arg uendo that Mr. Sy

kes established that his rea ssignment constituted an adver se employ ment action, he failed
to proff er sufficie nt evidenc e for a rea sonable jury to conclude that the Service ’s justification for his

rea ssignment wa s a pre text

.

1. The “Lie” Although the parties differ in their char acte rization of the incidents that pepper ed Mr. Sy kes’s tenure as the SAI C of the J ohnson Protective Division, Mr. Sy kes does not arg ue that none

o f t hese perf

ormanc e issues occur

red. The Def

endant established that Mr. Sy kes was reas s i gn ed following the April 2005 fac t-finding , which then-AD Sulli van initiated due to the repe a te d in c ide nts

occur ring at the J ohnson Protective Division. AD Sulli van rea ssigne d Mr. Sy kes based on his belief that Mr. Sy

kes was ineffe ctively manag ing the J PD due to the combined results of the 2004 routine office inspection, the s pecia l investigatio n into the s exual hara ssment incident, and the 2005 fac tfinding . Def

.’s Mot., Ex

. 5, Sulli van Dep. 108-111. Yet, Mr. Sy kes arg ues that “Mr. Sulli van lied when he said that the decision to rea ssign Mr. Sy kes was based on the April 26-27, 2005 fac t-finding conducte d by Mr. Grupski an d M r. Bu s ter.” Opp’n 39. I n fac t, he arg ues, “the proce ss of

-19-rea ssigning Mr. Sy kes was underw ay long befor e the fac t-finding beg an.” Opp’n 39. He bases this arg ument on his Ex hibits 23 and 24.

Plaintiff’s Ex hibit 23 is a Request for Personnel Action For m (SF-52) ref

lecting Mr. Sy kes’s reassig nment from S AI C of t he J PD to ASAI C at t he Training Center. Opp’n, Ex

. 23. I t

was signe d on Marc h 22, 2005, by the SAI C of the Trainin g C en t er , an d approve d on Marc h 24, 2005, one month befor e the 2005 fac t-finding beg an at the J ohnson Protective Divisi on. Id. Plaintiff’s Ex hibit 24 appea rs to show that the Advisory Boa rd re commended Mr. Sy

kes to f ill the ASAI C position at the Training Center on “5/4/13,” which is logic ally interpre ted as April 13, 2005. Opp’n, Ex

. 24. AD Sulli van and Mr. Prewitt wer e both members of the Advisory Boa rd and would have been involved in the rec ommend at ion ref lected in Ex hibit 24. Opp’n, Ex cer pts of Sulli van Deposition 181-84. I n other words, Mr. Sy k es arg ues that the decision to rea ssign him to the 1 3 Training Center was finalized by Messrs. Sulli van and Prewitt by April 13, 2005, at the latest. Mr. Sy kes attempts to use this analy sis to show that any decision to rea ssign him ba sed upon the April 26-27, 2005 fa ct-finding was a mere prete x t for ra ce- based discr imination. Upon closer inspection of Ex hibit 23, howeve r, it become s clea r that “[t] he version of the SF-52 that Plaintiff submitted as an exhibi t omits a key word from the document — that the action reque sted by the SF-52 was for a ‘B id,’ and does not repr esent the date on which Plaintiff was

rea ssigne d or his rea ssignment was initiated.” Reply [Dkt. #44] 24; Id. Ex

. 35, Walker Dec lara tion (“Walker Dec l.”) ¶¶ 3-4, 33, 37. I n t h e S ecret Service , when an office wants to open a vaca ncy

announce ment for bidding by ag ents, it submits a “B id SF-52" that identifies the position, its g rade level, wher e it is loc ated, and its position numbe r. Walker Dec l. ¶ ¶ 3-4. There fore , the Marc h 22,

Found a t Dkt. #37-5 1 3 -20-2005 and Marc h 24, 2005 signatures on the SF-52 mere ly ref lect the dates that the SAI C and the AD reque sted that the ASAI C position at the Training Center be open for bid. I d

. ¶¶ 4, 21. Once an individual is select ed, the Bid SF-52 is completed by handwr iting in the selec tee’ s rele vant information, as well as the ty pe of action and the eff

ective date. Id

. ¶ 18. I t is clea r when compar ing Mr. Sy kes’s Ex hibit 23 to the Walker Dec lara tion, that the word “B id” was omitted from the SF-52 relied upon by

Mr. Sy kes. Simi larly , the alleg ation that Mr. Sy kes’s name was added to the bid list on April 13, 2005 — befor e the fac t-finding beg an — is unsuppor ted. The “run date” of April 13, 2005 on Mr. Sy kes’s Ex hibit 24 is the date the repor t containing all the bids was run, i.e. , printed, not the date that the Advisory Boa rd meeting was held and it was decide d that Mr. Sy kes should be rea ssigne d. W al k er De cl

. ¶¶ 28-31. The document shows that Mr. Sy kes was not a bidder on the ASAI C position at the Training Center. After the Advisory Boa rd met on April 28, 2005, Mr. Sy kes’s name

was enter ed in handwr iting as the selec tee. Mr. Sy kes’s decla

ration that Mr. Sulli van “lied” and that the decision to rea ssign him was made befor e the fac t-finding in v e s ti g a tion now lacks any foundation in the rec ord. Mr. Sy

kes has mere ly mi s -interpr eted the dates on the documents to connote some sinister meaning that evapor ates upon e x amination.

2. The “Sh am ” Mr. Sy kes contends that the April 2005 fac t-finding eff ort was a sham. He challeng es

ever y aspec t of the work done by Messrs. Grupski and Bust er b ec au s e t h ey “fa iled to ask basic questions in witness interviews or do fundame n t al i nvestig atory work,” and, worse y et, they “influenc ed the direc tion of the interviews to suit their ag enda, and disreg arde d information that did not.” Opp’n 40. For this proposition, he cites the Depositions of Messrs. Grupski and Buster

. He

-21-also cites the Wit ness Affida vits of Daniel Klish, Mary Ba rg o, and David Checki, which wer e g iven during the investig ation of Mr. Sy kes’s EEO char g e. Mr. Klish acknow ledg es that he does not know if rac e play ed any fac tor in the

rea ssignment of Mr. Sy

kes but that he, Mr. Klish, believes the rea ssignment was unfair. Opp’n, Ex

. 17, Klish Aff. 2 (“I cannot say if rac e was a fac tor in his rea ssignment, althoug h I do think that Mr. Sy kes was not trea

ted fairly ”). Concerning DAD Grupski’s fac t-finding interview, Mr. Klish stated: I tried to explain to Mr. Grupski that based on my knowledg e of two of the individuals involved in t h e prank and their ang ry , bitter fee lings; [si c] I believed that perha

ps there was rea son to be conce rned fo r t h e safe ty of others on JP D, espe cially the supervisors, a

nd possibly

my self. When I attempted to articula te my fee lings, Mr. Gr u pski dismiss ed my comments and made it clea r that he alre ady had made up his m i nd on the matter reg arding how to handle the p r a nk and the employ ees associate d with it. At this point , my comments wer e futile a nd the conve rsation moved on to other topics. Id. at 4. Mr. Klish and two other ag ents ag ree d afte rwa rds that DAD Grupski “see med to be

on a mission an d was not interested in their thoughts.” Id. Mr. Klish was not prese nt when the prank took place but was briefe d about it later. Id. Ms. Ba rg o was the administrative office r at the J ohnson Protective Division. She told DAD Grupski that she “had become nervous and fea rful for my safe ty ” beca

use of the nature of the mock memoranda posted in Mr s. J ohnson’s home. Opp’n, Ex

. 16, Ba

rg o Aff. 2. She provides no other admissibl e ev i d ence conce rning DAD Grupski’s questioning tha t would support Mr. Sy kes’s c urre nt arg ument. Mr. Checki was a Special Ag ent on the J ohnson Prot ec t i v e De t ail. As arg uably rele vant, in his W itness Affidavit, he sta ted: -22-I believe that Mr. Grupski’s visit of the J PD detail during the wee k of April 25 thru 28 , 2005 was to inve stiga te a possible E EO matter conce rning a t h t h hostile work environment. [si c] (i .e. poster materia l and fake m em orandums). During this investigation, I believe Mr. Grupski had a differ ent ag enda due to his one-sided view with J PD personne l and me. I n my opinion, Mr. Grupski seemed to be influencing the direc tion of the interview from a hostile work environment towards inadequa te supervision of the JP D Deta il. Opp’n, Ex. 15, Checki Aff. 2. 1 4

None of these aff

idavits car

ries the point. Mr. Klish was not pre s en t wh en the in c ident occur

red and could not provide any information to DAD Grupski except his own s u s p ic io n s . Ms. Ba rg o provides no information that is useful to Mr. Sy kes’s arg ument. Mr. Checki sug g ests that DAD Grupski thought that inadequa te supervision was the issue, not a hostile w ork environment. DAD Grupski might have so t h o u gh t gi v en the incidents involving sexual hara ssment — a male ag ent exposed himself twice to a fema le ag ent and she felt unable to repor t it to the SAI C on this small detail — and the fake memoranda and g un rang e poster. Moreove r, the subjective impressions employ ees might express as to the thinking and rea soning of a supervisor do not constitute evidenc e.

Mr. Sy kes also arg ues that since the team failed to investigate thoroug hly his claims that SA McKe nna was exhibi ting serious behavior al problems, which he claims was the purpose for the investigation. See Opp’n 41. Even if the investigation wer e less than thoroug h on the question of SA McKe nna and the fac t-finding instead focuse d mostly on Mr. Sy kes’s leade rship of the J PD, this only reve als that Mr. Sy kes misconstrued the purpose of the fac t-finding in the first place

. See 2005 Fa ct Finding 4 (noting that AD Sulli van init i at ed the fac t finding upon lear ning of the discrepa ncy betwee n Mr. S y

kes’s claim that SA McKe nna authored t he fake memoranda and S A

Mr. Checki also stated: “I believe that Mr. Grupski prese nted a g ener al manner of dislike 1 4 for Mr. Sy

kes.” Chec ki Aff. 2. -23-Moore’ s email stating that he had written five of the memoranda ); id

. at 1 (noting that “in response

to the afor ementioned draf t memorandums, ADPO Mark Sulli van initiated a fac t finding inquiry reg arding the issues detailed in the J PD office inspection and specia l investigation [ i n volving the sexual hara ssment incidents], and the contents of the draf t memorandums of SAI C Sy kes reg arding J PD personnel” ).

This Court may not ag ree with DAD Grupski’s trea tment of Mr. Sy

kes or the Advisory Boa rd’s ultimate dec ision to reassig n Mr. Sy kes, but this issue is not up for the Court to consider. Title VI I does not pun i s h em p l o y ers for poor decisions, unless those decisions wer e motivated by rac e. Brown, 199 F.3d at 458-59 (finding that “[a]s courts are not fre e to second- g uess

an employ er' s business judgme nt, a plaintiff' s mere specula tions are insufficient to cre ate a g enuine issue of fac t reg arding [an employ er' s] articula ted rea sons for [i ts decisions] and avoid summary judgme nt”) (interna l quotations omitted); see also Holcomb v. Powell , 433 F.3d 889, 897 (D.C. Cir. 2006) (“We have consistently declined to serve as a ‘super -per sonnel depa rtment that ree x amines

an entity ' s business decisions.’” ) (citation omitte d ). T he issue at hand is whether Mr. Sy kes has demonstrated that the Service ’s justification for his rea ssignment was a mere prete x t for rac ial discrimination, which he ha s not.

Be y ond failing to show that the Service ’s stated justification for Mr. Sy kes’s

rea ssignment was false, Mr. Sy kes also fails to demonstrate that ra ce p l ay ed any role in his

rea ssignment. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 517-19 (1993) (stating that it is not true “ that all the plaintiff need do is disprove the employ er' s asser ted rea son . . . [i ]t is not enoug h, in other words, to disbelieve the employ er; the fac tfinder must believe the plaintiff' s explanation of intentional discrimination”). Mr. Sy kes first points to a forwar d ed em ai l from DAD Grupski

-24-containing an “ug ly , rac ially derog atory ‘joke’ made at the expense of Afric an Americ ans.” Opp’n

9; Opp’n, Ex

. 32, Grupski Email. Whil e insensitive at a minimum , Mr. Sy kes fails to demonstrate any nexus betwee n the email and his own rea ssignment. See, e.g., Simms v. U.S. GPO , 87 F. Supp. 2d 7, 9 n.2 (D.D.C. 2000) (noting that rac ist “‘stra y rema rks,’ even those made by a supervisor, are insuffici en t to cre ate a triable issue of discrimination wher e, as here , they are unrela ted to an employ ment decision involving the plaintiff”) ; Prater v. FedEx Corporate Se rvs. , Civ. No. 07-22, 2009 U.S. Dist. L EXI S 51146, at *23-24 (D.D.C. J une 18, 2009) (finding no infere nce of dis cr i m ination wher e no nexus exis ted betwee n a “re mark made in a joking manner ” and sever al g ener al comments about Afric an Americ ans and the plaintiff’s termination). More importantly , DAD Grupski was not the decision-make r when it came to Mr. Sy kes’s rea ssignm en t

. T hat a supervisor once forwa

rded a rac ially -der og atory email does not, in itself, demonstrate that the actua l

rea son for Mr. Sy

kes’s re assig nment was ra cial animus. Mr. Sy kes also attempts to show that the Service has eng ag ed in a pattern of trea ting Afric an Americ ans differ ently than non-Afr ican Americ ans. For this proposition, he arg ues that the
t hree Special Ag ents who wer e involved in the misconduct involving the fake memoranda at th e J PD, D AD Grupski, SAI C Donald Whit e, and a former SAI C at the Training Center, who wer e all involved in misconduct, wer e trea ted m o re l en i en tly by the Service

. Opp’n 27-28, 44-45. These

men ar e all Cauca sian. Even assuming that six people is a suf ficient sample size to demonstrate a pattern, Mr. Sy

kes fails to demonstrates that he is simil arly situated to the three Special Ag ents who

wer e under his command at the J PD. Mr. Sy kes has neither shown that “all of the rele vant aspec ts of [his] employ

ment situation were ‘ near ly identical’” to those of the Specia l Ag ents nor that they

wer e expected to exercise manag ement of the detail. Holbrook v. Reno , 196 F.3d 255, 261 (D.C. Cir.

-25-1999); see also Barbour v. Browner , 181 F.3d 1342, 1345 (D.C. Cir. 1999) (f inding that two EPA employ ees with similar job de scriptions, one a GS-12 and the other a GS-13, but slightly

differ ent duties wer e not simil arly situated). As Mr. Sy kes was the SAI C of the J PD a nd the superior of the three Special Ag ents involved in cre ating the fake memoranda and the g u n t arg et poster — and there fore potentially fac ed with hi g her e x pecta tions from Service leade rship — their t rea tment by the Service following their misconduct is simply not compara ble to the Service ’s trea tment of Mr. Sy kes. Although DAD Grupski, SAI C Donald Whit e, and a former SAI C at the Training Center were employ ees of the s ame or highe r ran k t h an Mr. S y kes, he still fails t o show that their char g es or alleg ed misconduct wer e com p ar able. Holbrook , 196 F.3d at 261. Mr. Sy kes was

rea ssigne d due to perc eived manag eria l difficulties, not misconduct. This last point aside, that DAD Grupski, SAI C Whit e, and the former S AI C at the Training Center wer e all allowed to keep their

same titles, a lthough two of them wer e rea ssigne d, is not sufficie ntly probative of rac ial animus in the rea ssignment of Mr. Sy kes. The Court is cog nizant that “[o] utrig ht admissions of impermissible

rac ial motivation are infreque nt and plain tiffs often must rely upon other evidenc e,” Hunt v. Cromartie , 526 U.S. 541, 553 (U.S. 1999), y et Mr. S y k es h as fa i led to provide evidenc e which would allow a rea sonable ju ry to conclude that rac e was at the hear t of the Service ’s decision to

rea ssign him. IV. CONCLUSION

Whil e it is clea

r that Mr. Sy

kes has had a distinguished car eer with the Secre t Service , he is unable to survive the Def endant’ s motion for summary judgme nt. Mr. Sy kes has not demonstrated that his rea ssignment was an adver se employ ment action. More i m p o rtantly ,

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endant has proff

ere d the leg itimate, non-discriminatory rea son of Mr. Sy kes’s poor manag eria l skills — as well as an evidentiar y basis for this claim — as the basis for his rea ssignment. Mr. Sy kes offe rs no more than specula tion and inadequa te compar isons in his attempt to demonstrate prete x t. Summary judgme nt will b e gra n t ed t o the Def endant. A memorializing Orde r acc ompanies this Memorandum Opinion.

Date: Ma y 11, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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