Snowden v. Zinke

• Court: District Court, District of Columbia
• Decided: December 9, 2020
• Docket: Civil Action No. 2015-1382
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MICHAEL SNOWDEN, ) ) Plaintiff, ) ) v. ) No. 15-cv-1382 (KBJ) ) RYAN ZINKE, Secretary, U.S. ) Department of the Interior, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Michael Snowden is an African American male who formerly worked as

a Sergeant for the United States Park Police (“USPP”). (See Compl., ECF No. 1, ¶¶ 3,

16–17.) On August 25, 2015, Snowden filed the instant complaint under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that USPP

discriminated against him on the basis of race when it demoted him and later terminated

his employment. (See Compl. ¶¶ 53–60.) Snowden further alleges that USPP retaliated

against him for filing an Equal Employment Opportunity (“EEO”) complaint that

challenged his demotion. (See id. ¶¶ 62–68.)

Before this Court at present is USPP’s Motion to Dismiss or, Alternatively, for

Summary Judgment. 1 (See Def.’s Mot. to Dismiss or, Alternatively, for Summ. J.

(“Def.’s Mot.”), ECF No. 47-2.) USPP argues that Snowden cannot proceed with his

claims regarding his demotion, as he failed to exhaust available administrative

1 Although the named defendant in this case is the Secretary of the Interior, this Memorandum Opinion will refer to the defendant as “USPP” throughout.

1 remedies. (See id. at 3.) 2 USPP also maintains that Snowden’s demotion and

termination were “effectuated pursuant to the terms of a valid, voluntarily executed

contract”—specifically, a Last Chance Agreement—pursuant to which Snowden had

waived his rights to challenge any adverse employment action stemming from the

agreement. (See id. at 3, 12–13.) Given the existence of this contract, USPP argues

that Snowden cannot show that his demotion and termination were the result of

discrimination or retaliation, nor can he prove that USPP’s asserted non-discriminatory

reasons for demoting and terminating him are pretextual. (See id. at 3–4.) In response,

Snowden contends that he exhausted his administrative remedies, that the parties’

contract does not bar his claims, and that the evidence, when construed in his favor,

demonstrates that USPP’s explanations for his demotion and termination are pretextual.

(See Pl.’s Opp’n to Def.’s Mot. to Dismiss or, Alternatively, for Summ. J. (“Pl.’s

Opp’n”), ECF No. 48, at 24, 28, 31, 38.)

On November 30, 2020, this Court issued an Order that GRANTED USPP’s

motion. (See Order, ECF No. 51.) This Memorandum Opinion explains the reasons for

that Order. In short, and as explained fully below, this Court has concluded that

Snowden waived his right to bring a legal action challenging his demotion and

termination, pursuant to the terms of the parties’ valid contract. The Court has further

determined that, even if Snowden had not waived his rights in this regard—and even if

the Court assumes that Snowden has exhausted all administrative remedies—no

reasonable jury could find that USPP’s stated reasons for Snowden’s demotion and

2 Page-number citations to the documents that the parties and the Court have filed refer to the page numbers that the Court’s Electronic Case Filing System (“ECF”) automatically assigns.

2 termination are pretextual. Therefore, USPP is entitled to summary judgment with

respect to all of Snowden’s claims.

I. BACKGROUND

A. Factual Background 3

Snowden began his employment with USPP as an Officer in 1987. (See Compl.

¶ 16.) Over time, he rose up through the ranks and was promoted to Sergeant. (See id.

¶ 17.) In that role, Snowden supervised other law enforcement officers in USPP’s

Communications Section and had “authority to enter, watch over, retrieve and guard

vital information from the Washington Area Law Enforcement System . . . and National

Criminal Information Center[.]” (See Ex. E to Def.’s Mot. (“Decision on Proposed

Removal”), ECF No. 47-7, at 3; see also Pl.’s Resp. to SUMF ¶ 15.)

1. Snowden’s First Offense

In August 2004, while working a shift at the Communications Section, Snowden

received a call from his relative, Brian Lamont. (See Pl.’s Resp. to SUMF ¶ 8; Decl. of

Michael Snowden (“Snowden Decl.”), ECF No. 48-3, ¶ 7.) On the call, Lamont asked

Snowden for the registration information associated with a specific license plate—

information that Snowden had the ability to obtain through law enforcement databases.

(See Snowden Decl. ¶ 7.) At the time of this call, USPP’s General Order 50.05

provided that the “misuse of a law enforcement information network m[ay] result in the

Force losing access to the system and individual disciplinary/adverse action being

3 Unless otherwise noted, the facts recounted in this Memorandum Opinion—which are drawn from the complaint, the record evidence, and Plaintiff’s response to Defendant’s Statement of Undisputed Material Facts—are undisputed. (See generally Compl.; Exs. A–CC to Def.’s Mot., ECF Nos. 47-3–31; Exs. 1–13 to Pl.’s Opp’n, ECF Nos. 48-3–15; Exs. CC–GG to Def.’s Reply in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Reply”), ECF Nos. 49-1–5; Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (“Pl.’s Resp. to SUMF”), ECF No. 48-1.)

3 initiated.” (See Pl.’s Resp. to SUMF ¶ 9.) The General Order also prohibited USPP

employees from “releas[ing] law enforcement information from a computerized network

to anyone other than a Force officer or an individual designated by the Commander,

Technical Services Branch/Field Office Commander.” (See id. ¶ 10.)

Notwithstanding this General Order, Snowden procured the requested data and

gave it to Lamont, even after acknowledging that he could lose his job for providing

that information. (See id. ¶ 8.) But unbeknownst to Snowden, Lamont was not the only

person on the phone; the Drug Enforcement Agency (“DEA”) had intercepted the phone

call, as Lamont was a known felon under DEA investigation. (See id. ¶¶ 4, 8.) And

when USPP learned of Snowden’s transgression in January of 2005, it initiated an

investigation into Snowden’s conduct. (See id. ¶ 5.) While this investigation was

ongoing, USPP suspended Snowden’s police powers and placed him on leave with pay.

(See Compl. ¶¶ 21–22; Snowden Decl. ¶¶ 11–12.)

USPP’s investigation into the incident came to a close on March 8, 2006; on that

date, it sent Snowden a Notice of Proposed Removal, which charged him with Misuse of

a Law Enforcement Computer System, Lack of Candor during interviews with officials

from the DEA, Association with a Known Felon, and Neglect of Duty. (See Compl. ¶

23; Ex. C to Def.’s Mot., ECF No. 47-5, at 2–4.) Snowden provided an oral response to

this notice, conceding that he had used the law enforcement databases to share

information with Lamont, but also insisting that he did not know Lamont was a felon.

(See Snowden Decl. ¶¶ 14–15.) Snowden further maintained that many other officers,

including his superiors, regularly used the law enforcement databases to access

information for third parties. (See id. ¶ 15.)

4 USPP reached a decision on Snowden’s proposed removal on August 6, 2008. It

sustained two of the four charges—Misuse of a Law Enforcement Computer System and

Neglect of Duty—and informed Snowden that his conduct warranted his removal. (See

id. ¶ 19; Decision on Proposed Removal at 2.) USPP explained that, as a supervisor

who is “held to a higher standard of responsibility[,]” Snowden’s decision to “ignore[]

the rules and regulations governing” law enforcement databases and “create[] a

potentially dangerous situation for” the person whose contact information he “freely

g[a]ve away” was “egregious[.]” (See Decision on Proposed Removal at 3.) USPP

nevertheless opted to give Snowden one final opportunity to remain employed with the

park police force, and presented him with a Last Chance Agreement (“LCA”) as an

alternative to removal. (See id. at 4.)

2. The Last Chance Agreement

The LCA—which, by its terms, would remain in effect for three years after the

date of the last signature on the agreement—provided that USPP would hold Snowden’s

“removal action . . . in abeyance” if he agreed to and complied with the conditions laid

out in the contract. (See Ex. F to Def.’s Mot. (“LCA”), ECF No. 47-8, at 2.) In

relevant part, the LCA stated that, by signing the agreement, Snowden:

[A]cknowledges that the charges represent unacceptable behavior for which [USPP] could have legitimately removed him from his position . . . had he not elected to participate in the alternate discipline that this agreement represents[;]

. . . understands that as a part of this LCA, he will be demoted from the position of Sergeant to a position of Police Officer (Private), effective August 31, 2008[;]

. . . [and] agrees not to engage in any sustained misconduct of any kind during the duration of this Agreement . . . [and] further agrees that if he engages in any sustained misconduct during this time frame, he will have

5 breached the terms of the Agreement and [USPP] will reinstate the removal action without further notice.

(Id. ¶¶ 1–3.) For its part, USPP promised that “if [Snowden] complies with all of the

terms of the LCA and therefore does not breach this Agreement, [USPP] will rescind

the removal decision and the LCA.” (Id. ¶ 9.) Importantly, the LCA further provided

that “if [Snowden] breaches this Agreement and the removal action is effected, he

waives any and all rights to challenge, grieve, litigate, complain or appeal any

disciplinary action.” (Id. ¶ 15.)

After receiving a copy of the LCA, Snowden conferred with his attorney, and

then asked the Acting Assistant Chief of Police to make a few changes to the contract,

including altering specific language and inserting a provision that rescinded Snowden’s

demotion once the LCA expired. (See Pl.’s Resp. to SUMF ¶¶ 17, 19–20.) The Acting

Assistant Chief granted Snowden’s first request, but refused the request to modify the

terms of Snowden’s demotion. (See id. ¶ 20; Ex. O to Def.’s Mot., ECF No. 47-17, at

14.) Snowden eventually signed the agreement, more than sixty days after USPP

presented it to him, and the Acting Assistant Chief countersigned a few weeks later.

(LCA at 5; see also Pl.’s Resp. to SUMF ¶ 21.)

Following the execution of the LCA, Snowden proceeded to work at USPP

without incident for almost two years. However, during that time, he was not actually

demoted in terms of his salary (i.e., he continued to be paid at the Sergeant level), and

he continued to receive the same benefits that he had received prior to the LCA,

notwithstanding the fact that he was supposed to have been demoted immediately after

the LCA took effect. (See Pl.’s Resp. to SUMF ¶ 34.) USPP realized its mistake in this

regard in June of 2010, after discovering that a clerical error had prevented Snowden’s

6 demotion from being reflected in its payment system. (See id. ¶¶ 33, 35; Ex. S to Def.’s

Mot., ECF No. 47-21, at 9.) USPP additionally attributed the delay in implementing the

terms of the LCA to its attempts to place Snowden in a non-law-enforcement position

after he suffered an on-the-job injury that compromised his ability to serve on active

duty. (See Pl.’s Resp. to SUMF ¶ 33; see also Ex. S to Def.’s Mot. at 11–13.) 4 In any

event, USPP notified Snowden on June 10, 2010, that, pursuant to the LCA, he was

being demoted, and that his demotion would occur on July 18, 2010. (See Pl.’s Resp. to

SUMF ¶ 35; Ex. J to Def.’s Mot., ECF No. 47-12, at 4.)

3. Snowden’s Second Offense

On July 4, 2010—after Snowden received notice of his upcoming demotion, but

before the demotion took place—USPP assigned Snowden to monitor suspicious

activity on the National Mall from the vantage point of a nearby sky tower. At that

point in time, the sky tower contained a closed-circuit television (“CCTV”) camera,

which relayed real-time footage to USPP officers and FBI agents in a Mobile Command

bus. (See Pl.’s Resp. to SUMF ¶¶ 36–38, 40–42.)

At some point during Snowden’s shift, an FBI agent in the Mobile Command bus

noticed that the CCTV camera to which Snowden had been assigned was transmitting

close-up footage of various women’s chests and buttocks. (See id. ¶¶ 38, 42; Ex. H to

Def.’s Mot., ECF No. 47-10, at 2.) The FBI agent informed USPP that “the FBI was

viewing these images, that the camera was not being used appropriately, and that the

operator of the camera needed to be made aware that others were seeing these images.”

(Pl.’s Resp. to SUMF ¶ 42.) A USPP employee, Sergeant Fred Grefe, subsequently

4 Snowden disputes this justification, claiming that the delay resulted solely from USPP’s “failure to follow through with the demotion and from clerical error.” (See Pl.’s Resp. to SUMF ¶ 33.)

7 relayed this message to Snowden, and according to Sergeant Grefe, Snowden replied

with “words to the effect of ‘oh man, busted.’” (Ex. H to Def.’s Mot. at 5.) Snowden

denies making this statement (see Pl.’s Resp. to SUMF ¶ 44), and he alleges that

Sergeant Grefe treated the incident as a joke—as did Captain Charles Guddemi, a USPP

official who saw the images from the Mobile Command Bus (see Snowden Decl. ¶¶ 29,

31).

Regardless, Captain Guddemi initiated an administrative complaint against

Snowden the following month, charging him with “Inappropriate use of CCTV

Camera.” (Ex. G to Def.’s Mot., ECF No. 47-9, at 2–3.) The Internal Affairs Unit then

conducted an investigation into Snowden’s use of the CCTV camera, and one of the

investigators, Detective Sergeant Stephen Godfrey, added an additional allegation

against Snowden for “Inattention to Official Duties” in light of the “information

[Godfrey] gathered during the course of the investigation.” (Ex. Y to Def.’s Mot., ECF

No. 47-27, at 3; Ex. G to Def.’s Mot. at 4.) The Internal Affairs Unit also interviewed

Snowden about the incident (see Ex. H to Def.’s Mot. at 2–3), and during the interview,

Snowden defended his behavior, claiming that he had simply been “doing [his] job” by

monitoring the crowd (see Ex. EE to Def.’s Reply, ECF No. 49-3, at 6). Yet, at the

conclusion of the investigation, the Internal Affairs Unit recommended sustaining both

charges against Snowden (see Ex. I to Def.’s Mot., ECF No. 47-11, at 2), and USPP’s

Office of Professional Responsibility ultimately did so on August 25, 2011 (see Ex. L to

Def.’s Mot., ECF No. 47-14, at 2).

Five days after the charges were sustained, USPP’s Chief of Police issued an

amended removal decision concerning Snowden’s employment with USPP. The

8 decision quoted the LCA and explained that Snowden had breached the agreement on

July 4, 2010, by inappropriately using the CCTV camera and neglecting his official

duties. (See Ex. M to Def.’s Mot., ECF No. 47-15, at 2–3.) The decision also informed

Snowden that he would be terminated, effective immediately, and reminded him that,

per the LCA, he had waived “any and all rights” to appeal his removal. (See id. at 3.)

B. Procedural History

On August 17, 2010, Snowden appealed his demotion and the imposition of the

LCA to the Merit Systems Protection Board (“MSPB”), arguing that “the LCA was

invalid and, thus, his demotion under the terms of the LCA was improper.” (See Pl.’s

Resp. to SUMF ¶ 54.) An administrative law judge held a hearing on the matter and

ultimately dismissed Snowden’s appeal for lack of jurisdiction, finding that the LCA

was a valid contract that explicitly provided for Snowden’s demotion. (See id. ¶¶ 55–

58; Ex. O to Def.’s Mot. at 21–29.) Snowden then appealed the administrative law

judge’s ruling, which the MSPB upheld. (See Pl.’s Resp. to SUMF ¶ 60.) Snowden

returned to the MSPB on September 28, 2011, to appeal his termination. An

administrative law judge again dismissed his appeal for lack of jurisdiction based on the

LCA, finding that Snowden had waived his right to appeal his removal. (See id. ¶¶ 61–

62.)

In addition to pursuing administrative remedies through the MSPB, Snowden

also challenged his demotion and termination through the EEO system. 5 In his formal

5 The parties dispute when Snowden initiated EEO proceedings. According to Snowden, he first contacted an EEO counselor about his demotion and the LCA in the fall of 2008, and the counselor told him that he had to wait until any adverse employment action occurred before he could file a complaint. (See Pl.’s Resp. to SUMF ¶ 63; Snowden Decl. ¶ 20.) Snowden maintains that he returned to the EEO counselor on August 16, 2010, after his demotion went into effect, but he ended up having to put his informal EEO complaint on hold while he pursued the MSPB appeal; he then allegedly renewed the EEO proceedings on December 1, 2010, after the MSPB dismissed his appeal. (See Snowden Decl. ¶¶

9 EEO complaint, Snowden alleged that USPP discriminated against him on the basis of

race when it forced him to sign the LCA and eventually demoted him. (See Ex. J to

Def.’s Mot. at 4–5.) Snowden later amended the EEO complaint after his termination,

asserting that USPP had removed him from the police force in retaliation for initiating

EEO proceedings. (See Ex. V to Def.’s Mot., ECF No. 47-24, at 3.) The Department of

the Interior issued a final decision on Snowden’s EEO complaint on May 26, 2015,

finding that the evidence did not support either of Snowden’s claims. (See Ex. Q to

Def.’s Mot., ECF No. 47-19, at 26, 28.)

Snowden filed the instant lawsuit on August 25, 2015, following the dismissal of

his EEO complaint, asserting claims under Title VII for race and color discrimination

and unlawful retaliation. (See Compl. ¶¶ 52–68.) The complaint alleges, in particular,

that Snowden’s race was a motivating factor behind his demotion and termination, and

that similarly-situated Caucasian officers were not demoted or terminated for engaging

in equivalent—or, in some cases, more serious—misconduct. (See id. ¶¶ 56–57.)

Snowden also maintains that USPP knew of his protected EEO activity and terminated

him because of it. (See id. ¶¶ 62–65.)

On March 25, 2016, USPP filed a Motion to Dismiss or, Alternatively, for

Summary Judgment, which contended (among other things) that Snowden had failed to

exhaust his administrative remedies. (See Def.’s Mot. to Dismiss or, Alternatively, for

Summ. J., ECF No. 9, at 6.) Snowden subsequently filed a motion to conduct discovery

on a number of issues, including the exhaustion of his claims. (See Pl.’s Mot. to Deny

32–34.) USPP vigorously contests Snowden’s version of events. In its view, Snowden did not contact an EEO counselor until either November 30, 2010, or December 1, 2010—the latter is the date that Snowden identified in his formal complaint as the day he first contacted an EEO counselor. (See Ex. J to Def.’s Mot. at 2; Ex. X to Def.’s Mot., ECF No. 47-26, at 3.)

10 or Defer Entry of Summ. J. or Dismissal to Permit Pl. to Conduct Disc., ECF No. 15;

Pl.’s Mem. in Supp. of Mot. to Conduct Disc., ECF No. 15-1, at 7.) On April 25, 2016,

this Court granted in part Snowden’s motion and ordered the parties to conduct limited

discovery into the issue of exhaustion. (See Order, ECF No. 21, at 2–3.) The Court

also denied USPP’s motion without prejudice (id. at 3), after which the parties

eventually proceeded to conduct a full period of discovery (see Scheduling Order, ECF

No. 28; see also Def.’s Mot. at 16; Pl.’s Opp’n at 13 n.4).

On October 8, 2019, USPP submitted the Motion to Dismiss or, Alternatively,

for Summary Judgment that is before this Court at present. (See Def.’s Mot., ECF No.

47-2.) In this motion, USPP argues that (1) Snowden did not “exhaust his

administrative remedies with respect to the imposition of the last chance agreement and

his demotion”; (2) Snowden “cannot meet the causation element for a discrimination or

retaliation claim because his demotion and removal were both effectuated pursuant to

the terms of a valid, voluntarily executed contract”; and (3) Snowden cannot prove that

USPP’s asserted reasons for his demotion and termination were pretextual. (See id. at

3–4.)

In his brief in opposition to USPP’s motion, Snowden maintains that he

exhausted his administrative remedies by initiating EEO proceedings within 45 days of

his demotion. (See Pl.’s Opp’n at 24–27.) He also argues that his claims are not barred

by the LCA because that contract did not explicitly waive his right to bring Title VII

claims, and that, even if it did, any such waiver is void as against public policy. (See

id. at 28–29.) As for the merits of his discrimination claim, Snowden contends that

USPP’s asserted reasons for his demotion and termination are pretextual, primarily

11 because similarly-situated Caucasian officers were allegedly treated less harshly after

committing similar or more serious offenses. (See id. at 34.) With respect to the

retaliation claim, Snowden further argues that USPP’s proffered reason for his

termination lacks credibility, largely because two officers allegedly told him that USPP

management would find a way to retaliate against him for filing his EEO complaint.

(See id. at 15, 38–43.)

USPP’s motion has been fully briefed (see Def.’s Reply, ECF No. 49), and is ripe

for this Court’s consideration.

II. MOTIONS FOR SUMMARY JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 56

When a defendant styles its motion as a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), or, in the alternative, a motion for summary judgment under

Federal Rule of Civil Procedure 56, the Court may “opt to evaluate one basis for

termination of the action and not the other.” Rochon v. Lynch, 139 F. Supp. 3d 394,

400 (D.D.C. 2015); cf. PDK Lab’ys, Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)

(Roberts, J., concurring in part and concurring in the judgment) (explaining that where

there “is a sufficient ground for deciding th[e] case,” the “cardinal principle of judicial

restraint—if it is not necessary to decide more, it is necessary not to decide more—

counsels us to go no further”).

In this case, because the parties have completed discovery and also rely on

materials outside the pleadings to support their arguments, the Court will treat USPP’s

motion as a motion for summary judgment. See Fed. R. Civ. P. 12(d); see also Ross v.

U.S. Capitol Police, 195 F. Supp. 3d 180, 192–94 (D.D.C. 2016) (suggesting that

summary judgment is appropriate after the parties have engaged in discovery, especially

12 in employment discrimination cases); Crawford v. Johnson, 166 F. Supp. 3d 1, 7–8

(D.D.C. 2016) (electing to treat defendant’s motion as a motion for summary judgment

when the court’s resolution of the case depended on materials outside the pleadings),

aff’d in part and rev’d in part on other grounds, 867 F.3d 103 (D.C. Cir. 2017);

Patterson v. United States, 999 F. Supp. 2d 300, 306 (D.D.C. 2013) (noting that courts

do not consider matters outside the pleadings on a Rule 12(b)(6) motion, unless the

documents are attached, incorporated by reference, or necessarily relied upon in the

plaintiff’s complaint).

A court may grant a party’s motion for summary judgment when “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” under this

standard if it is capable of changing the outcome of the litigation, and a movant is

entitled to summary judgment if the record is such that there is no genuine dispute

concerning the existence of any such material fact, such that no reasonable juror could

return a verdict for the nonmoving party. See Mount v. Johnson, 174 F. Supp. 3d 553,

559–60 (D.D.C. 2016).

When reviewing a motion for summary judgment, the court must construe all

facts and reasonable inferences in the nonmovant’s favor. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, “[t]he mere existence of

some alleged [non-material] factual dispute between the parties will not defeat summary

judgment[,]” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (internal quotation

marks and citation omitted), and “a plaintiff who offers only ‘a scintilla of evidence’ in

13 support of its position will not survive summary judgment[,]” Rochon, 139 F. Supp. 3d

at 401 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

III. ANALYSIS

As noted above, USPP has made three arguments in support of its motion for

summary judgment with respect to all of Snowden’s legal claims; it argues that (1)

Snowden failed to exhaust any claims related to his demotion or the imposition of the

LCA, (2) the LCA bars Snowden’s discrimination and retaliation claims because he

agreed to the demotion and assumed the risk of termination, in lieu of being fired for

the initial infraction, and (3) USPP had legitimate, non-discriminatory reasons for

demoting and then terminating Snowden. (See Def.’s Mot. at 4, 6, 13.) In their briefs,

the parties spill much ink over the question of exhaustion, with each side accusing the

other of failing to put forth the necessary evidence to support its position (see Pl.’s

Opp’n at 24–27; Def.’s Reply at 7, 9–11), but Title VII’s exhaustion requirements are

not jurisdictional, see, e.g., Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir.

2011), and thus this Court need not wade into the mire that surrounds the exhaustion

dispute when it sees a clearer path to resolving the instant motion, as explained fully

below.

In short, this Court finds that the LCA between USPP and Snowden is a valid,

enforceable contract, and that Snowden is bound by its terms, including the waiver of

his right to challenge any disciplinary action stemming from the agreement. The Court

also concludes that, even if Snowden had not waived his right to challenge his demotion

and termination, and even if the Court assumes Snowden exhausted his administrative

remedies, USPP would still be entitled to summary judgment, because the record

14 evidence does not support a finding that USPP’s asserted reasons for demoting and

terminating Snowden are pretextual, or that the challenged actions were actually the

result of discrimination and retaliation.

A. USPP Is Entitled To Summary Judgment Because The LCA Bars Snowden From Challenging His Demotion And Termination

LCAs are “probationary contracts” between an employee facing termination and

his employer, wherein the employer agrees to suspend termination proceedings if the

employee complies with specific conditions outlined in the agreement. See U.S. Dep’t

of Air Force v. FLRA, 949 F.2d 475, 478 (D.C. Cir. 1991). As contracts, LCAs are

governed by rudimentary principles of contract law, and it is thus well established that

courts will enforce such agreements if (1) the LCA contains the necessary elements of a

valid contract—namely, “a mutual intent to contract including offer, acceptance, and

consideration[,]” Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 885 F. Supp. 2d

156, 182 (D.D.C. 2012) (internal quotation marks and citation omitted)—and (2) the

parties entered into the agreement knowingly and voluntarily, see Johnson v. Veneman,

569 F. Supp. 2d 148, 155 (D.D.C. 2008). 6 In evaluating whether these criteria have

been met, courts look for “an exchange of promises—through commitments to act or

refrain from acting in a specified way—that are evidenced in a writing or are inferable

from conduct.” See Ascom, 885 F. Supp. 2d at 182 (internal quotation marks and

citation omitted). Moreover, and notably, such mutual assent can exist “when two

6 Additionally, where one party to such a contract is a federal agency, courts must also ensure that the government representative “who entered or ratified the agreement” had authority “to bind [the agency] in contract.” See Ascom, 885 F. Supp. 2d at 182 (internal quotation marks and citation omitted). That requirement is easily satisfied here, as the Acting Assistant Chief of Police ratified the LCA at issue in this case, and the Acting Assistant Chief has authority to bind the USPP. (See LCA at 5; Ex. O to Def.’s Mot. at 15–17; Ex. T to Def.’s Mot., ECF No. 47-22, at 3.)

15 parties sign a contract regardless of the parties’ subjective intent[,]” and “[p]rovided

there is no fraud, duress, undue influence, or mistake, a party is typically bound to any

agreement for which there is assent.” Serv. Emps. Int’l Union Local 32BJ v. Diversified

Servs. Grp., Inc., 958 F. Supp. 2d 166, 172–73 (D.D.C. 2013).

1. The LCA Between USPP And Snowden Was A Valid Contract

The parties do not dispute that the LCA contains the necessary elements of

contract formation—and for good reason. (See Pl.’s Opp’n at 29; Def.’s Reply at 13.)

USPP specifically spelled out the terms of the agreement in the LCA, and Snowden

accepted those terms by signing the contract. (See LCA at 2, 5.) There was also an

exchange of promises and forbearances on both sides. USPP expressly promised to

hold Snowden’s removal in abeyance if Snowden agreed to a demotion, acknowledged

that he would be terminated if he engaged in future misconduct, and waived his right to

appeal any disciplinary action arising out of the agreement. (See id. ¶¶ 2–3, 15.)

Meanwhile, Snowden promised to not “engage in any sustained misconduct of any kind

during the duration of” the LCA, and he did so in exchange for his continued

employment with USPP. (See id. ¶ 3; see also id. at 1.) These facts, taken together,

indisputably demonstrate offer, acceptance, and consideration, and the parties’

signatures provide objective evidence of “a mutual intent to contract.” See Ascom, 885

F. Supp. 2d at 182 (internal quotation marks and citation omitted).

With the rudimentary elements of contract formation in place, the next question

is whether Snowden entered into the LCA knowingly and voluntarily. See Veneman,

569 F. Supp. 2d at 155. Based on the evidence in the record, this Court has no doubt

that he did. Snowden took more than sixty days to decide whether or not to sign the

agreement, and he was represented by a lawyer at the time he executed the contract.

16 What is more, he attempted to negotiate various terms of the contract with the Acting

Assistant Chief of Police. (See Pl.’s Resp. to SUMF ¶¶ 17, 19–21.) Under these

circumstances, there is simply no factual basis upon which to conclude that Snowden

signed the LCA against his will or did not understand the terms to which he agreed. 7

Accordingly, the Court finds that the LCA, as a general matter, is a valid and

enforceable contract. See Johnson v. Penn. Camera Exchange, 583 F. Supp. 2d 81, 86

(D.D.C. 2008) (“Absent a showing of fraud or duress, parties are bound by the

agreements that they sign, without regard to whether they regret their decisions after the

fact.” (citation omitted)).

2. Pursuant To The LCA, Snowden Agreed To Waive His Right To Appeal His Demotion And Termination In Any Forum, And This Court Must Honor The Terms Of The Parties’ Valid, Enforceable Agreement

A contract’s waiver of a party’s appeal rights is enforceable if the waiver’s

terms are unambiguous, see Anzueto Wash. Metro. Area Transit Auth., 357 F. Supp. 2d

27, 30–31 (D.D.C. 2004), and if the party that relinquished its appeal rights did so

knowingly and voluntarily, see Veneman, 569 F. Supp. 2d at 155. The Court finds that

both requirements are met here.

To start, the contract’s waiver provision (see LCA ¶¶ 3, 15) is as unambiguous as

it gets. Under paragraph 15 of the LCA, Snowden agreed that if he “breache[d] th[e]

Agreement and the removal action [wa]s effected, he waive[d] any and all rights to

challenge, grieve, litigate, complain or appeal any disciplinary action.” (Id. ¶ 15

(emphasis added).) In this Court’s view, the provision’s plain text unequivocally

7 To the extent that Snowden implies that he was “forced” to sign the LCA “immediately” (see Pl.’s Opp’n at 9; Snowden Decl. ¶ 19), the fact that he was represented by a lawyer and had over sixty days to contemplate the agreement—which he acknowledges (see Pl.’s Resp. to SUMF ¶¶ 17, 21)—belies any suggestion of coercion.

17 covers Snowden’s instant claims regarding his demotion and termination, which, by

their nature, are “challenge[s]” to subsequent “disciplinary action[s].” (See id.) And

the fact that Snowden agreed to this waiver knowingly and voluntarily can hardly be

disputed, since he had ample time to consult with an attorney about the LCA and to

review the contract’s provisions, and actually did so.

Snowden’s struggle to sidestep the conclusion that the LCA’s clear waiver

provision must be enforced includes the argument that the LCA did not explicitly waive

his right to bring claims under Title VII (see Pl.’s Opp’n at 28–29), and that, regardless,

any waiver of his Title VII rights is unenforceable as a matter of public policy (see id.).

Neither argument is persuasive. First, as noted above, the plain text of the LCA is

unambiguous: in the event of any sustained misconduct during the effective period of

the agreement, Snowden plainly waived “any and all rights to challenge, grieve, litigate,

complain or appeal any disciplinary action.” (LCA ¶ 15.) Given the breadth of this

waiver, the fact that the LCA does not reference Title VII claims in particular is of no

moment, and, indeed, Snowden does not provide any support for the proposition that the

agreement’s lack of specificity in this regard matters. This failure is most likely

attributable to the fact that the case law in this jurisdiction cuts in the opposite

direction. See, e.g., Anzueto, 357 F. Supp. 2d at 31 (finding that a contract precluded

the plaintiff from asserting a Title VII claim against his employer when the contract

barred “any and all . . . claims, demands, damages, actions, and causes of action of

every kind” arising out of the employment relationship).

Snowden’s alternative argument—that any waiver of his Title VII rights is

unenforceable as a matter of public policy—fares no better, as courts in this circuit and

18 elsewhere have routinely upheld waivers of a plaintiff’s right to bring Title VII claims.

See, e.g., Veneman, 569 F. Supp. 2d at 154–55; Anzueto, 357 F. Supp. 2d at 30–32;

Maceda v. Billington, No. 01-cv-461, 2003 WL 25782447, at *2 (D.D.C. Jan. 17, 2003);

see also Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n.15 (1974) (stating that

“presumably an employee may waive his cause of action under Title VII as part of a

voluntary settlement,” so long as the employee’s “consent to the [agreement] was

voluntary and knowing”); Hay Adams Hotel LLC v. Hotel & Rest. Emps., Local 25, No.

06-cv-968, 2007 WL 1378490, at *3 (D.D.C. May 9, 2007) (noting that “though the

terms of [an] LCA might be very harsh or unreasonable, the parties agreed to it and the

contract is exactly what it purports to be—a ‘last chance’ agreement” (internal

quotation marks and citation omitted)). And given this Court’s finding that the LCA is

a valid, enforceable contract, and also that Snowden agreed to the LCA’s waiver

provision knowingly and voluntarily, the Court sees no reason to depart from this

lengthy line of precedent here. 8

B. Even If Snowden Had Not Waived His Right to Challenge His Demotion And Termination, His Discrimination Claims Under Title VII Would Still Fail, Because No Reasonable Juror Could Find That USPP’s Legitimate, Non-Discriminatory Reasons For The Challenged Actions Are Pretextual

After reviewing the evidence and arguments in this case, the Court has also

concluded that, even if Snowden had not waived his right to challenge his demotion and

8 Snowden cites a single case from a district court in this circuit in support of his contention that an LCA’s waiver of a plaintiff’s right to file an EEO complaint alleging discrimination under the Rehabilitation Act is void as against public policy. (See Pl.’s Opp’n at 29 (citing Callicotte v. Carlucci, 698 F. Supp. 944, 946 (D.D.C. 1988).) This Court finds Snowden’s reliance on Callicotte unwarranted for several reasons, not the least of which is the fact that what is at issue in the instant case is whether an LCA can bar a plaintiff from asserting waived Title VII claims in federal court, not whether a plaintiff may waive his right to file an EEO complaint. In addition, the court in Callicotte was concerned that the plaintiff had unknowingly and involuntarily waived her rights. See Callicotte, 698 F. Supp. at 947 n.2. That concern is not present here for the reasons explained above.

19 termination, USPP would still be entitled to summary judgment on Snowden’s claims

that USPP discriminated against him based on his race.

Title VII prohibits employers from “discharg[ing] any individual, or otherwise

discriminating against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To state a claim for race

discrimination under Title VII, a plaintiff must show that he suffered an adverse

employment action because of his race. See Brady v. Office of the Sergeant at Arms,

520 F.3d 490, 493 (D.C. Cir. 2008). And when presented with a Title VII

discrimination claim, courts apply what is known as the McDonnell Douglas burden-

shifting analysis, with the burden of production first resting with the plaintiff, who must

present a prima facie case of discrimination by a preponderance of the evidence, and

then—if the plaintiff can make such a case—the burden shifts to the defendant to

provide a non-discriminatory reason for the challenged adverse employment action. See

Johnson v. Perez, 66 F. Supp. 3d 30, 37 (D.D.C. 2014) (first citing Tex. Dep’t of Cmty.

Affs. v. Burdine, 450 U.S. 248, 252–53 (1981); and then citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–03 (1973)). If the defendant is able to do so, the

burden shifts back to the plaintiff to establish that the defendant’s proffered reasons are

pretextual. Id.

Importantly, where, as here, an employer has asserted a legitimate non-

discriminatory reason for the challenged action, courts in this jurisdiction proceed as if

the shifting framework “falls away[,]” see Morris v. McCarthy, 825 F.3d 658, 668 (D.C.

Cir. 2016), and ultimately focus solely on whether the plaintiff has offered “sufficient

20 evidence for a reasonable jury to find that the employer’s asserted non-discriminatory

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

against the employee on the basis of race,” Brady, 520 F.3d at 494. To make that

assessment, the court is required to consider “all of the evidence, taken together . . .

includ[ing] testimony from the decision-maker involved and other employees,

comparative evidence suggesting that the employer treated other employees of a

different race more favorably in the same factual circumstances, or any other evidence

suggesting the employer is making up or lying about the underlying facts that formed

the predicate for the employment decision.” Sledge v. District of Columbia, 63 F. Supp.

3d 1, 16 (D.D.C. 2014) (internal quotation marks and citation omitted).

1. Snowden Has Failed To Offer Sufficient Evidence To Support A Finding That USPP’s Asserted Explanation For His Demotion Is A Pretext For Race Discrimination

Here, USPP has articulated a legitimate, non-discriminatory reason for its

decision to demote Snowden: that Snowden misused law enforcement software to

provide information to a third party, and failed to report the alleged misuse of law

enforcement databases by other officers. (See Def.’s Mot. at 14; Def.’s Reply at 15–16,

19.) The record provides ample support for USPP’s asserted explanation for the

demotion.

As an initial matter, it is undisputed that Snowden committed those infractions.

The DEA recorded the phone conversation in which Snowden provided database

information to Lamont, and during his oral response to the Notice of Removal,

Snowden admitted to accessing the law enforcement databases for Lamont and

observing other officers misuse the databases. (See Pl.’s Resp. to SUMF ¶¶ 8, 11.)

Snowden also informed Lamont on the call that he could lose his job if he provided the

21 requested information, but he proceeded to give Lamont the data anyway. (See id. ¶ 8.)

Plus, in the Decision on Proposed Removal, the Acting Assistant Chief of Police

described the seriousness of Snowden’s misconduct and explained why Snowden’s

behavior warranted his removal. For example, the Acting Assistant Chief stated that

USPP could have lost its license for the databases, and that Snowden’s failure to report

others’ misconduct called into question Snowden’s ability to perform his role as a

supervisor. (See Decision on Proposed Removal at 2–4; LCA at 2.) It is also worth

noting that Snowden not only acknowledged the seriousness of his misconduct by

signing the LCA, but also explicitly agreed to his demotion as an alternative to the

termination of his employment. (See LCA ¶¶ 1–2.) Having accepted the terms of the

LCA, and having consented to the very disciplinary action that he now challenges,

Snowden cannot reasonably maintain that USPP lacked a legitimate, non-discriminatory

reason for demoting him.

Undaunted, Snowden maintains that his misuse of law enforcement databases

could not have been the real reason for his demotion, given USPP’s delay in

implementing the LCA and the fact that USPP has given inconsistent explanations for

imposing the LCA in the Decision on Proposed Removal and its instant motion. (See

Pl.’s Opp’n at 33–34.) Snowden also asserts that similarly-situated Caucasian officers

who engaged in similar or more serious misconduct were not demoted. (Id. at 34–35,

37–38.) But the record provides little support for these contentions.

For starters, it is undisputed that the officials responsible for implementing the

LCA offered a non-discriminatory reason for the delay (clerical error), and Snowden

has not offered any reason for a factfinder to believe that the delay actually resulted

22 from racial discrimination. (See Pl.’s Resp. to SUMF ¶ 33.) In addition, the Court

cannot find any material inconsistencies between the reasons given for imposing the

LCA that USPP asserted in the Decision on Proposed Removal and USPP’s arguments

in the instant motion. In both documents, USPP unambiguously explains that

Snowden’s sustained charges—misuse of law enforcement databases and neglect of

duty—warranted his immediate termination, and that USPP presented Snowden with the

LCA as an alternative to removal in order to give Snowden an opportunity to keep his

job. (See Decision on Proposed Removal at 2–3; Def.’s Statement of Facts, ECF No.

47-1, ¶¶ 13–16.) And nothing about the subsequent delay in Snowden’s demotion or

USPP’s asserted reason for imposing the LCA in lieu of termination suggests that

USPP’s explanation for Snowden’s demotion was pretextual.

Snowden’s comparator evidence does not support his claim either. To raise a

reasonable inference of race discrimination based on comparator evidence, Snowden

must demonstrate that USPP “treated other employees of a different race more

favorably in the same factual circumstances[.]” Sledge, 63 F. Supp. 3d at 16. In his

brief, Snowden identifies sixteen Caucasian USPP officers who “were not removed or

demoted for first offenses involving charges of comparable seriousness to those charges

that were sustained against [him].” (Pl.’s Opp’n at 35; see also id. at 35–37 (providing

the example of a Caucasian officer who allegedly viewed pornography on his work

computer and was removed only after his third offense, and another officer who was

merely suspended for misusing law enforcement databases for personal reasons).) Even

if one accepts that Snowden’s account of these comparators’ circumstances is true,

23 however, no reasonable jury could conclude that USPP’s treatment of these other

officers is evidence of racially discriminatory treatment in Snowden’s case.

Out of the sixteen comparators to which Snowden points, only one appears to

have signed an LCA. (Compare Pl.’s Opp’n at 20 (noting that Officer Mace signed an

LCA) with id. at 38 (stating that “Plaintiff alone was given the option of immediate

removal or signing an LCA”).) And, even then, the one comparator who apparently

signed an LCA had an infraction that was substantially different than Snowden’s. That

official was charged with misusing a government credit card (see id. at 20), and he was

merely an officer at the time he signed the LCA (see id.), not a sergeant “held to a

higher standard of responsibility and conduct than a non-law enforcement supervisor”

(Decision on Proposed Removal at 3). Moreover, each LCA is apparently individually

negotiated (or has the potential to be negotiated), so the fact that this officer was not

demoted—and instead agreed to serve a 30-day suspension and pay back the money he

spent in the context of his own LCA—hardly demonstrates that USPP treats similarly-

situated employees of a different race more favorably. See Brady, 520 F.3d at 495.

Snowden attempts to salvage his claim by suggesting that the existence of the

LCA itself is evidence of discrimination, as USPP “disparately issued . . . [and]

imposed” LCAs on some employees and not others. (See Pl.’s Opp’n at 32.) Indeed,

throughout his brief, Snowden suggests that the imposition of the LCA was unfair and

discriminatory, and that he should not have been “forced” to sign it. (Id. at 9.) 9 These

9 For example, in his opposition brief, Snowden claims that “[a]t the time that he signed the LCA in October 2008, [he] reasonably believed that the LCA violated his Title VII rights since he was subjected to disciplinary actions that were applied disparately to him compared to similarly-situated Caucasian officers.” (Pl.’s Opp’n at 29.) He also contends that the Acting Assistant Chief of Police wrote a memorandum concluding that Snowden’s misuse of law enforcement databases did not warrant his termination, and that a human resources representative told Snowden that she thought USPP’s imposition of the LCA was unfair. (See id. at 9.) Snowden additionally suggests that USPP should not

24 arguments are misplaced, because Snowden has not alleged in his complaint that the

LCA was unlawful (see Compl. ¶¶ 52–68), and his window for doing so has long

expired, given that the statute of limitations for challenging contracts like the LCA ran

out in 2014, at the latest, which was a whole year before Snowden filed this lawsuit, see

Holmes v. United States, 657 F.3d 1303, 1313–17 (Fed. Cir. 2011) (explaining that if a

contract falls within the purview of the Tucker Act, which allows plaintiffs to raise

federal challenges regarding contracts with the United States government under certain

circumstances, a six-year statute of limitations applies); see also D.C. Code § 12-301(7)

(providing for a three-year statute of limitations for contract-based claims brought

under state law). Even more to the point, if Snowden believed that the LCA and his

demotion were unfair and discriminatory at the time USPP presented him with the

contract in 2008, he could have—and should have—refused to sign the agreement, and

he could have then proceeded to challenge not only the alleged requirement that he sign

an LCA but also any adverse employment actions that occurred as a result of his refusal

to do so.

Unfortunately for Snowden, however, he did no such thing. Instead, after

consultation with an attorney, Snowden accepted the terms of the contract, including the

demotion, by signing the LCA. And having unequivocally consented to the very

employment action that he now seeks to challenge, Snowden is effectively precluded

from maintaining that the bargained-for demotion was a pretext for race discrimination,

as USPP correctly observes. (See Def.’s Mot. at 14; see also id. at 12.)

be able to enforce the LCA against him under the “unclean hands” doctrine, given USPP’s delay in implementing his demotion and the fact that the agency’s EEO representative never explicitly informed Snowden that he would be waiving his rights to appeal his demotion and termination if he signed the LCA. (See id. at 31.)

25 2. Snowden Has Failed To Offer Sufficient Evidence To Support A Finding That USPP’s Asserted Explanation for His Termination Is A Pretext for Race Discrimination

As was the case with Snowden’s demotion, USPP has also articulated a

legitimate, non-discriminatory reason for its decision to terminate Snowden’s

employment. Per the terms of the LCA, Snowden’s participation in any “sustained

misconduct” during the duration of the LCA would constitute a breach of contract, in

which case USPP would “reinstate the removal action without further notice.” (LCA ¶

3.) USPP contends—and the evidence reflects—that Snowden triggered this provision

on July 4, 2010, when he used the CCTV camera to zoom in on women’s breasts and

buttocks while he was supposed to be conducting general video surveillance. (See Ex.

H to Def.’s Mot. at 2–4; Ex. L to Def.’s Mot. at 2.) After the Internal Affairs Unit

conducted a full investigation of the incident, the Office of Professional Responsibility

sustained the proposed charges (see Ex. H to Def.’s Mot. at 2–4; Ex. L to Def.’s Mot. at

2), prompting USPP to amend its removal decision and terminate Snowden for his

breach of the agreement (see Ex. M to Def.’s Mot. at 2). Under these circumstances, it

is clear to the Court that USPP has asserted a legitimate, non-discriminatory reason for

Snowden’s termination, and has provided evidence to support its contention that

Snowden’s misconduct triggered the LCA provision that gave rise to his termination.

In attempting to rebut USPP’s asserted explanation for his firing, Snowden relies

on the same arguments that he advanced above; namely, that the imposition of the LCA

was itself a discriminatory act, and that similarly-situated Caucasian officers did not

face the same penalties for similar or more serious misconduct. (See Pl.’s Opp’n at 32,

37–38.) But, as the Court has already explained, Snowden provides no evidence of

discrimination in connection with the LCA’s execution, nor does his complaint assert

26 any claim challenging the imposition of the LCA itself. And none of his alleged

comparators are similarly-situated. Therefore, the Court concludes that no reasonable

juror could find that USPP’s articulated reason for Snowden’s termination is a pretext

for discrimination, and as a result, USPP is entitled to summary judgment on both of

Snowden’s discrimination claims under Title VII.

C. Snowden’s Retaliation Claim Also Fails, Because No Reasonable Juror Could Conclude That USPP’s Legitimate, Non-Retaliatory Reason For Terminating Snowden Was Pretextual

Snowden has also brought a retaliation claim under Title VII, alleging that USPP

terminated him as reprisal for the contact that he initiated with an EEO representative.

(See Compl. ¶¶ 62–67.) The Court finds that USPP is entitled to summary judgment on

this claim as well.

To establish a prima facie case of retaliation under Title VII, a plaintiff must

show that “(1) he engaged in protected activity; (2) he was subjected to an adverse

employment action; and (3) there was a causal link between the protected activity and

the adverse action.” Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012)

(internal quotation marks and citation omitted). Just as with discrimination claims

under Title VII, courts in this jurisdiction evaluate retaliation claims using the

McDonnell Douglas burden-shifting framework. See Jones v. Bernanke, 557 F.3d 670,

677 (D.C. Cir. 2009). And courts in this circuit likewise zero in on the “ultimate

question whether all of the evidence, taken together, supports an inference of retaliation

when the employer has proffered a legitimate, non-discriminatory reason for the

adverse action at issue.” Sledge, 63 F. Supp. 3d at 19 (citation omitted).

27 In evaluating whether the record supports an inference of retaliation, courts may

consider both direct and circumstantial evidence, including evidence that “the employer

treated other, similarly situated employees better; that the employer is lying about the

underlying facts of its decision; that there were changes and inconsistencies in the

employer’s given reasons for the decision; that the employer failed to follow

established procedures or criteria; or that the employer’s general treatment of . . .

employees who asserted their Title VII rights[] was worse than its treatment of . . .

employees who did not assert their Title VII rights[.]” Allen v. Johnson, 795 F.3d 34,

39 (D.C. Cir. 2015) (internal quotation marks and citation omitted). But, here,

Snowden has failed to offer evidence of any kind from which a reasonable jury could

find that USPP’s purported reason for terminating him—i.e., that Snowden breached the

LCA by engaging in sustained misconduct, which triggered the contract’s automatic

removal provision—is a pretext for retaliation.

For one thing, to the extent that Snowden relies on the same comparators that he

marshalled for his discrimination claim (see Pl.’s Opp’n at 16, 43 (suggesting that

USPP officers who committed similar misconduct but did not engage in protected

activity were not terminated for their actions)), it appears that not one of Snowden’s

identified comparators had also breached the unambiguous terms of an LCA (see id. at

16–22). Without that critical similarity, Snowden’s comparator evidence falls far short

of demonstrating pretext.

Next, Snowden asserts that multiple USPP officers told him that “since he filed

an EEO complaint, management would find a way to remove him[,]” and that “USPP

management was trying to persuade them to file an [internal affairs] complaint against

28 [Snowden] regarding his July 4th activities but that they declined to do so.” (Id. at 40.)

Snowden argues that these statements serve as sufficient evidence of USPP’s retaliatory

“animus” and demonstrate that USPP used the July 4th incident as pretext for “hav[ing]

[Snowden] removed for filing an EEO complaint” (see id. at 43), but he has failed to

provide admissible evidence that these statements were made, and it is well established

that “sheer hearsay . . . counts for nothing on summary judgment,” Greer v. Paulson,

505 F.3d 1306, 1315 (D.C. Cir. 2007) (internal quotation marks and citation omitted).

Snowden also points to the alleged inconsistency between “USPP leadership’s

initial reactions” to the July 4th incident and their later complaints. (Pl.’s Opp’n at 43.)

In this regard, he maintains that “[p]rior to contacting EEO representatives, [he] had

heard nothing adverse regarding his operation of the CCTV camera on July 4th, 2010”

and that “the only conversations that he had with peers and USPP leadership reflected

that the images of the women in bikinis were considered to be a joke and that it was of

minimal effect.” (Id. at 39–40.) Snowden additionally asserts that Captain Guddemi

told him that he did not believe Snowden’s activities warranted a formal complaint—

but then went ahead and filed a complaint against Snowden after Snowden initiated

contact with the EEO representative. (See id. at 15.) As has already been mentioned,

USPP disputes that Snowden’s contact with the EEO office preceded the complaints

that led to his termination. But even if Snowden’s timeline is accurate, his assertions

do not support a reasonable inference that he was terminated because of his EEO

activity, and this is especially so given that whatever reasons USPP’s leadership may

have had for allegedly changing their minds about the severity of Snowden’s conduct, it

was the Internal Affairs Unit and the Office of Professional Responsibility that

29 ultimately investigated the incident and sustained charges against him, not the officers

that apparently considered Snowden’s conduct to be “a joke.” And, indeed, Snowden

has not alleged that the Internal Affairs Unit or the Office of Professional

Responsibility even knew of his protected EEO activity, let alone that they were

influenced by it. 10

In a further attempt to show that USPP’s proffered reason for his termination is a

pretext for retaliation, Snowden maintains that his conduct on July 4th, 2010, was not

sufficiently serious to warrant any adverse employment action, and, for that matter, did

not even rise to the level of misconduct. This argument is meritless, for two primary

reasons. First, the record evidence establishes that Snowden engaged in serious

misconduct. For example, the investigative report that the Internal Affairs Unit

prepared found that

[t]he camera appeared to be primarily focused on a female wearing a green bikini. The camera was manually zoomed closer in and appeared to be focusing on an area below the woman’s shoulders to include her breasts and groin area. The camera was held at this position for several moments. The camera was panned left and right and stopped on several women capturing video that primarily included the buttocks. The camera was manually panned back to the woman in the green bikini and manually zoomed in closer to include her lower back and buttocks.

10 To be sure, under a “cat’s paw” theory of liability, employers may be held responsible when “a formal decision maker [is] an unwitting conduit of another actor’s [discriminatory or retaliatory] motives.” See Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015). But, here, the state of the record is such that no reasonable jury could find that Captain Guddemi retaliated against Snowden by filing an administrative complaint. Snowden’s reliance on inadmissible hearsay is insufficient to support an inference of pretext, and, without more, the mere fact that Captain Guddemi may have altered his views about Snowden’s misconduct in the wake of the incident does not suggest that his complaint was motivated by retaliatory animus. (See also Decl. of Charles J. Guddemi, Ex. W to Def.’s Mot., ECF No. 47-25, ¶ 4 (stating that he was unaware Snowden had submitted an EEO complaint at the time he filed his allegations against Snowden).)

30 (Ex. H to Def.’s Mot. at 3.) That account comports with the photographs in the record

that document the CCTV camera’s footage. (See Ex. U to Def.’s Mot., ECF No. 47-23,

at 3–4.) And Snowden’s present assertions that the camera was zoomed in on these

women for “about one-half of one percent (.004) of the time that he worked on July 4,

2010” (Pl.’s Opp’n at 12), and that the “zoom feature may have frozen or he could have

accidentally zoomed while he was distracted with a telephone call” (id. (suggesting that

his focus on the bikini-clad women was unintentional)), are in conflict with the

testimony he gave to the Internal Affairs Unit following the incident. (See Ex. EE to

Def.’s Reply at 8 (stating that, as the operator of the CCTV camera, he had control over

the zoom and moving functions of the camera); see id. at 21 (defending his zooming in

on the women as part of his job duties).) The second reason that Snowden’s efforts to

minimize his inappropriate conduct fails is that the LCA plainly provided for

Snowden’s removal if he engaged in “any” sustained misconduct—not misconduct of a

specified level of severity. (See LCA ¶ 3.) Thus, Snowden’s subjective interpretation

of the seriousness of his repeated misuse of the camera is irrelevant.

Finally, Snowden points to the temporal proximity between his contact with the

EEO counselor on August 16, 2010, and Captain Guddemi’s filing of an administrative

complaint about his inappropriate use of the CCTV camera on August 25, 2010. Again,

USPP insists that Snowden did not actually contact the EEO counselor until at least

November 30, 2010—long after Captain Guddemi filed his administrative complaint.

(See Pl.’s Resp. to SUMF ¶ 63; Def.’s Reply at 8.) But this is not an issue of material

fact, because even assuming that Snowden did contact the EEO representative shortly

before Captain Guddemi filed the administrative complaint, the temporal proximity

31 between these two events, standing alone, is insufficient to raise a reasonable inference

of pretext. It is the binding precedent of this circuit that “positive evidence beyond

mere proximity is required to defeat the presumption that the [employer’s] proffered

explanations are genuine[.]” Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011)

(internal quotation marks and citation omitted); see also, e.g., Woodruff v. Peters, 482

F.3d 521, 530–31 (D.C. Cir. 2007). And for the reasons just discussed, Snowden has

not offered any other admissible evidence that creates a genuine issue of material fact

regarding USPP’s motivation for his termination.

IV. CONCLUSION

The Court finds that Snowden waived his rights to pursue a legal claim

concerning his demotion or termination based on the plain text of the parties’ valid,

enforceable agreement, and even if Snowden was able to pursue this action consistent

with the parties’ contract, no reasonable jury could find that USPP’s asserted

explanation for demoting or terminating Snowden is a pretext for race discrimination or

retaliation due to his protected EEO activity, given the plain terms of the LCA and

Snowden’s apparent subsequent misuse of the CCTV camera. Therefore, USPP is

entitled to summary judgment with respect to all of the claims in the complaint, and this

Court effectively ordered as much when, on November 30, 2020, it GRANTED USPP’s

Motion to Dismiss or, Alternatively, for Summary Judgment. 11

DATE: December 9, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

11 The Court is issuing an Amended Order contemporaneously with this Opinion to clarify that it has treated USPP’s Motion to Dismiss or, Alternatively, for Summary Judgment as a motion for summary judgment under Rule 56, and to direct that judgment shall be issued in USPP’s favor on all counts of the complaint.