UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RICHARD YOUNG, : : Plaintiff, : Civil Action No.: 19-2144 (RC) : v. : Re Document No.: 62 : SONNY PERDUE, : Secretary, United States Department : of Agriculture : : Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Richard Young was discharged from his job at the United States Department of
Agriculture’s (“USDA”) Foreign Agriculture Service (“FAS”) after the agency withdrew his
interim security clearance. He then filed this action claiming employment discrimination,
retaliation, and a hostile work environment in violation of Title VII of the Civil Rights Act of
1964. The USDA now moves for summary judgment on all three claims, asserting that there is
no genuine dispute of material fact for trial. The Court agrees and accordingly grants the
agency’s motion for summary judgment.
II. BACKGROUND
A. Factual Background
1. Plaintiff’s Removal from USDA
The USDA hired Plaintiff—who is a heterosexual, African American man—in January
2015 as the Chief Information Officer for the FAS. Def.’s Statement of Material Facts (“Def.’s Statement”) ¶ 1, ECF No. 62-2. The description of the position indicates that it requires a
clearance. Ex. A to Def.’s Mot. at 80, ECF No. 62-3. On February 10, 2016, the USDA granted
Plaintiff an interim security clearance while final adjudication remained pending. Def.’s
Statement ¶¶ 4–8.
In late 2016, the USDA Office of Inspector General (“OIG”) received two complaints
against Plaintiff related to the agency’s ethics and conduct regulations. Id. ¶¶ 9–10. In
November 2016, a Personnel Misconduct Investigator began reviewing Plaintiff’s email
communications on USDA systems, which he found to include instructions for contractors to
access and review invoices on the Invoice Processing Platform, which the U.S. Treasury
provides to agencies to “process and pay invoices under business contracts the government
enters into for the procurement of goods and services.” Ex. J to Def.’s Mot. at 5, ECF No. 62-
12; see also id. at 10. The investigator additionally discovered emails instructing contractor staff
to assist Plaintiff with personal business, as well as details of unauthorized speaking events on
behalf of the USDA. Id. at 3, 9–10. The investigator also found an April 2016 civil judgment
against Young for approximately $232,000—among other debts. Id. at 11.
On March 2, 2017, the FAS informed the USDA’s Personnel and Document Security
Division that it was investigating Plaintiff for misconduct allegations, including “conflicts of
interest in the award of several contracts;” allowing “contractors to use [Plaintiff’s] credentials to
approve the payments for other contractors;” “inappropriately charging hours against contracts to
support [Plaintiff’s] personal activities;” and failure to report several hundred thousand dollars in
civil judgments. Ex. E to Def.’s Mot. at 2, ECF No. 62-7. The FAS stated that it had
“discovered” a judgment against Plaintiff “for the amount of $231,940.84” and that it was “not
aware of [Plaintiff] reporting this matter.” Id. On March 3, 2017, the FAS placed Plaintiff on
2 paid administrative leave following withdrawal of his interim security clearance. Def.’s
Statement ¶ 14; Ex. G to Def.’s Mot., ECF No. 62-9. A July 25, 2017, investigatory report
detailed evidence the FAS found to support several of the misconduct allegations. See Ex. J to
Def.’s Mot.
On October 5, 2017, the FAS issued Plaintiff a notice of proposed removal, listing eight
different grounds for his termination. Ex. I to Def.’s Mot., ECF No. 62-11. The USDA stayed
Plaintiff’s removal at the request of the U.S. Office of Special Counsel, however, while the
USDA’s OIG investigated allegations Plaintiff made against another FAS official, Bryce Quick.
Def.’s Statement ¶ 39. Plaintiff remained on paid status during this time. Id. ¶ 40. On February
15, 2019, FAS Administrator Ken Isley notified Plaintiff of his decision to “suspend [Plaintiff]
indefinitely, from duty and without pay.” Ex. K to Def.’s Mot. at 2, ECF No. 62-13. The notice
stated that Plaintiff’s security clearance was withdrawn on March 2, 2017, and that “[a]s a result
of the withdrawal of your interim security clearance, you are not eligible to perform the duties of
your position.” Id.
2. Bryce Quick’s Resignation from USDA
In late 2016, Plaintiff reported FAS Chief Operating Officer Bryce Quick to the OIG for
“unethical conduct” and “concern that Quick was receiving kickbacks” from contractors. Def.’s
Reply to Pl.’s Statement of Material Facts ¶ 8, ECF No. 69-2. The OIG opened an investigation
in 2017. Id. ¶ 38. During this investigation, the OIG discovered that Quick had made a false
statement in a 2017 civil rights investigation when he denied financial involvement with a
contractor employee. Def.’s Statement ¶ 50. On February 28, 2019, the USDA’s Personnel and
Document Security Division informed FAS Administrator Isley that it had suspended Quick’s
security clearance. Id. ¶ 56. Quick completed an assigned detail in Rome, and the agency
3 detailed him to a nongovernmental organization in April 2019. Def.’s Reply to Pl.’s Statement
of Material Facts ¶ 45. The agency placed Quick on indefinite suspension on October 19, 2019,
due to suspension of his clearance. Id. ¶ 47; Ex. S to Def.’s Mot., ECF No. 62-21. Isley
informed Quick that there was no position for him within the USDA because he had lost his
clearance. Def.’s Statement ¶ 61. Quick resigned from the agency on November 27, 2019. Id.
¶ 59. In a report issued August 13, 2020, the U.S. Office of Special Counsel concluded that
Quick “did not receive financial kickbacks or other benefits from contractors in exchange for
allegedly allowing the contractors to inflate bills for services at FAS.” Ex. N. to Def.’s Mot. at 2,
ECF No. 62-16. Quick is a white, homosexual man. Def.’s Reply to Pl.’s Statement of Material
Facts ¶ 33.
B. Procedural Background
Plaintiff filed this lawsuit on July 19, 2019, claiming employment discrimination,
retaliation, and a hostile work environment in violation of Title VII. Compl., ECF No. 1. On
February 4, 2020, the USDA moved for judgment on the pleadings, arguing that Plaintiff’s
claims are not justiciable under Dep’t of Navy v. Egan, 484 U.S. 518 (1988), because the Court
may not review the agency’s decision to deny him a security clearance. See generally Mot. J.
Pleadings, ECF No. 13. The Court denied that motion on June 24, 2020, concluding that it could
not determine at that early stage of litigation whether Plaintiff’s claims required evaluating the
merits of a security clearance investigation. Mem. Op. Denying J. Pleadings (“Mem. Op.”) at 1,
ECF No. 22. “[M]any issues raised by Plaintiff appear to have little to do with the substance of
the security clearance decision,” the Court observed. Id. at 8. The Court added, however, that
if after discovery Plaintiff fails to establish a case beyond challenging the security clearance decision, or fails to show that any employees made knowingly false referrals to the Security Division about him, or that similarly situated employees not of his protected class who also lost security clearances were treated more
4 favorably than he was, the Court will not hesitate to enter judgment for Defendant pursuant to Egan.
Id. at 10.
Following a lengthy discovery process, during which the Court granted in part and denied
in part Plaintiff’s motion for discovery sanctions against the USDA, see Order, ECF No. 58, the
agency now moves for summary judgment, see Def.’s Mot., ECF No. 62. Plaintiff filed his
opposition, see Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 64, and Defendant
filed a reply, see Def.’s Reply Supp. Mot. Summ. J. (“Def.’s Reply”), ECF No. 69-1. The
motion is now ripe for review.
III. LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is genuine if “the evidence presents a sufficient disagreement to
require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
And a fact is material if it “might affect the outcome of the suit under the governing law.” Id. at
248. On summary judgment, the Court views all evidence “in the light most favorable to the
nonmoving party and the [C]ourt [ ] draw[s] all reasonable inferences in favor of the nonmoving
party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
5 trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered without any evidentiary support do not establish a genuine issue
for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
IV. ANALYSIS
The Court analyzes each of Plaintiff’s claims in turn, first addressing his contention that
USDA officials discriminated against him based on his race or sexual orientation. The Court
then addresses Plaintiff’s retaliation and hostile work environment claims. After careful review
of the parties’ filings and the record, the Court concludes that Plaintiff lacks evidence that would
allow a reasonable jury to find in his favor on any of these three claims. 1
A. Employment Discrimination
Plaintiff claims that the USDA violated Title VII because he “was not treated as
favorably as similarly situated employees outside of his protected classes (African American,
male and heterosexual) . . . in the terms and conditions of his employment as well as in terms of
disciplinary, proposed disciplinary and security related administrative actions taken against him.”
Compl. ¶ 35. The facts alleged in the Complaint indicate that white managers were allowed
greater access to “their budgets and spending trends,” Compl. ¶ 17, greater flexibility in hiring,
id. ¶¶ 20, 23, and penalties short of suspension following investigations, id. at ¶ 33. On summary
judgment, the scope of these issues has narrowed to whether the USDA treated Plaintiff
1 The parties continue to debate the application of Egan to the instant case. See Def.’s Mot. at 13–20; Pl.’s Opp’n at 16–19. The Court refers the parties to its prior ruling on this issue. See Mem. Op. Denying J. Pleadings.
6 differently from white, gay employees when it initiated an investigation, suspended him, and
finally removed him from his position. See Pl.’s Opp’n at 20–21. The USDA argues that
Plaintiff cannot show disparate treatment by comparing his experience to those of other
employees, including Quick. Def.’s Mot. at 21–29. The USDA adds that it removed Plaintiff
from his position because he “could not maintain the required security clearance due to his own
misconduct” and “presented a serious security risk for the Agency.” Id. at 29. Plaintiff responds
that Quick serves as a comparator from which discriminatory treatment could be inferred. Pl.’s
Opp’n at 20–21.
Title VII of the Civil Rights Act makes it unlawful for an employer “to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). A plaintiff
states a prima facie case of employment discrimination by establishing that “(1) she is a member
of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable
action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C.
Cir. 2002) (quoting Brown v. Brody, 199 F.3d 466, 452 (D.C. Cir. 1999)).
Once a plaintiff establishes a prima facie case, the employer must provide a legitimate
non-discriminatory or non-retaliatory reason for its adverse action. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015). If the
employer cannot provide an actual, legitimate reason for the action, then the plaintiff is entitled
to judgment. Allen, 795 F.3d at 39. If “the employer proffers a non-retaliatory [or
nondiscriminatory] reason for the challenged employment action, the burden-shifting framework
falls away.” Id. “[T]he central question” then “becomes whether the employee produced
7 sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory
or non-retaliatory reason was not the actual reason and that the employer intentionally
discriminated or retaliated against the employee.” Id. (cleaned up).
Summary judgment must be granted for the defendant if the plaintiff fails to “produce
sufficient evidence that would discredit [the employer’s proffered explanation] and show that the
actions were retaliatory” or discriminatory. Baloch v. Kempthorne, 550 F.3d 1191, 1200 (D.C.
Cir. 2008). The Court should consider “all of the evidence,” including “any combination of (1)
evidence establishing the plaintiff’s prima facie case; (2) evidence the plaintiff presents to attack
the employer’s proffered explanation for its actions; and (3) any further evidence of
discrimination that may be available to the plaintiff, such as independent evidence of
discriminatory statements or attitudes on the part of the employer.” Holcomb v. Powell, 433
F.3d 889, 897 (D.C. Cir. 2006).
An employee may establish disparate treatment under Title VII by demonstrating that the
employer “has ‘treated [a] particular person less favorably than others because of’ a protected
trait.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (quoting Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 985–986 (1988)). As such, “[o]ne way to discredit an employer’s
justification” for its employment action “is to show that similarly situated employees of a
different race received more favorable treatment.” Wheeler v. Georgetown Univ. Hosp., 812
F.3d 1109, 1115 (D.C. Cir. 2016). “Factors that bear on whether someone is an appropriate
comparator include the similarity of the plaintiff’s and the putative comparator’s jobs and job
duties, whether they were disciplined by the same supervisor, and, in cases involving discipline,
the similarity of their offenses.” Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C.
Cir. 2015). In addition, “[a] disparate-treatment plaintiff must establish ‘that the defendant had a
8 discriminatory intent or motive’ for taking a job-related action.” Ricci, 557 U.S. at 577 (quoting
Watson, 487 U.S. at 986). “‘Proof of illicit motive is essential,’ and the employee ‘at all times’
has the burden of proving ‘that the defendant intentionally discriminated against’ her.” Figueroa
v. Pompeo, 923 F.3d 1078, 1086 (D.C. Cir. 2019) (quoting Segar v. Smith, 738 F.2d 1249, 1265,
1267 (D.C. Cir. 1984)).
1. Adverse Employment Actions
The Court must first determine which adverse employment actions may be actionable
under Title VII. The Court construes Plaintiff’s filings as contending that he experienced
discrimination (1) when the agency decided to initiate an investigation into his activities; (2)
when the agency suspended him with pay; and (3) when the agency eventually removed him
from his position. See Pl.’s Opp’n at 20–21. In Chambers v. Dist. of Columbia, 35 F.4th 870
(D.C. Cir. 2022) (en banc), the D.C. Circuit adopted a capacious view of which employment
actions can give rise to a Title VII discrimination claim. There, the court held that the statute
means what it says, and that it reaches any change that “affects an employee’s ‘terms, conditions,
or privileges of employment.’” Id. at 874. Plaintiff’s termination presents the easy question, as
it plainly represents an adverse employment action. See Douglas v. Donovan, 559 F.3d 549,
552–54 (D.C. Cir. 2009). In contrast, the agency’s decisions to initiate an investigation and
suspend Plaintiff without pay represent closer calls.
Courts in this district have habitually held that “the mere initiation of” an investigation
does not “have a sufficiently adverse effect on [a] plaintiff’s employment to be actionable.”
Ware v. Billington, 344 F. Supp. 2d 63, 76 (D.D.C. 2004); see also Moore v. United States Dep’t
of State, 351 F. Supp. 3d 76, 95 (D.D.C. 2019) (“request for an investigation by an independent
body (as opposed to the disciplinary action that may follow) does not constitute an actionable
9 adverse employment action”). Courts previously observed a limited exception for situations
where the initiation of an investigation carries other consequences, such as denial of a promotion,
which combined arises to adverse employment action. See, e.g., King v. Holder, 77 F. Supp. 3d
146, 151 (D.D.C. 2015). The more inclusive standard articulated in Chambers may affect these
conclusions, however. An investigation into an employee’s conduct may well be carried out
with discriminatory animus and itself impact the “terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e–2(a)(1). The D.C. Circuit explained in Chambers that “public
humiliation or loss of reputation,” which misconduct investigations often beget, represent “more
than de minimis harms” to an employee. 35 F.4th at 875. And earlier this year the Supreme
Court reasserted that “[t]he ‘terms [or] conditions’ phrase . . . is not used ‘in the narrow
contractual sense’; it covers more than the ‘economic or tangible.’” Muldrow v. City of St. Louis,
Missouri, 144 S. Ct. 967, 974 (2024) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 78 (1998)). The Supreme Court additionally disavowed the idea that a Title VII
plaintiff must “show that the injury satisfies a significance test,” id. at 972, and that he instead
must simply show that he was “treat[ed] worse” for a prohibited reason, id. at 974. In light of
these opinions clarifying the scope of Title VII, the Court is not convinced that the
discriminatory initiation of a misconduct investigation lies outside the statute’s reach, in
particular in a situation where the result of the investigation is that Plaintiff is separated from his
work responsibilities and professional networks for an extended period of time, as discussed
below. The Court does not resolve this issue, however, because the parties did not brief it and, as
explained below, Plaintiff ultimately provides insufficient evidence to show that the investigation
was carried out with discriminatory intent.
10 Whether Plaintiff was subjected to an adverse employment action when the USDA
suspended him with pay is similarly unclear. Courts in this district have generally held that
“suspension with pay” does not “constitute an adverse employment action.” Brown v.
Georgetown Univ. Hosp. Medstar Health, 828 F. Supp. 2d 1, 9 (D.D.C. 2011); see also Jones v.
Castro, 168 F. Supp. 3d 169, 179 (D.D.C. 2016) (“[A] 19 month period of paid administrative
leave while an investigation is ongoing . . . does not, by itself, constitute an adverse action.”).
Chambers and Muldrow may again impact these holdings. Whether an individual is in fact
allowed to work in his role could be viewed as affecting the “terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e–2(a)(1). At least one court in this district has nonetheless
held, post-Chambers, that paid administrative leave does not constitute an adverse employment
action. See Hockaday v. Washington Metro. Area Transit Auth., No. 21-cv-03265, 2023 WL
3844388, at *8 (D.D.C. June 6, 2023). The issue remains an open question in this circuit. See
Cooper v. Am. Univ., No. 22-7067, 2023 WL 179304, at *2 n.4 (D.C. Cir. Jan. 13, 2023) (“We
do not reach the question of whether paid administrative leave is an adverse action.”); Hornsby v.
Watt, No. 17-5001, 2017 WL 11687516, at *1 (D.C. Cir. Nov. 14, 2017) (“leaving open” the
question of whether “being placed on administrative leave could constitute the type of adverse
action that would support a retaliation claim”). Similarly to the Court’s treatment of the
investigation, the Court need not resolve the suspension issue here because, as explained below,
Plaintiff produces no evidence showing that the USDA placed him on paid administrative leave
for discriminatory reasons. The Court next turns to each adverse employment action to
determine if there is any genuine issue of material fact precluding summary judgment.
11 2. USDA’s Investigation
To the extent that Plaintiff argues he experienced discrimination because the USDA
initiated an investigation into his conduct, see Compl. ¶¶ 35–36; Pl.’s Opp’n. at 20, that basis for
his Title VII claim lacks sufficient evidence to create a question of fact for a jury. Plaintiff
asserts that “[t]he focus” of his “race and sexual orientation discrimination claim is Bryce
Quick.” Pl.’s Opp’n at 16. Plaintiff thus presents Quick as a comparator of a “different race”
and sexual orientation who “received more favorable treatment.” Wheeler, 812 F.3d at 1115; see
also Burley, 801 F.3d at 301 (“A plaintiff can establish pretext masking a discriminatory motive
by presenting ‘evidence suggesting that the employer treated other employees of a different race
. . . more favorably in the same factual circumstances.’”). It is plain, however, that Quick did not
receive more favorable treatment regarding the agency’s decisions to investigate the two
employees. The USDA received misconduct complaints against Plaintiff in November and
December 2016, and it soon opened an investigation. Def.’s Statement ¶¶ 9–11. When Plaintiff
made complaints against Quick in late 2016, the agency opened an investigation of his activities,
as well. Def.’s Reply to Pl.’s Statement of Material Facts ¶¶ 8, 38; Def.’s Statement ¶¶ 47–48.
Plaintiff additionally asserts, when questioning the USDA’s reasoning for immediately
suspending him, that “Quick was subjected to a more serious criminal misconduct investigation
while Young was subjected to an employee misconduct investigation.” Pl.’s Opp’n at 20. In
light of these facts, the Court concludes that there is no genuine dispute of material fact over
whether Quick received “more favorable treatment” in the context of the individuals’ respective
misconduct investigations. Wheeler, 812 F.3d at 1115. As a result, the Court need not decide
whether the USDA’s misconduct investigation into Plaintiff’s activities constituted adverse
employment action.
12 3. Plaintiff’s Suspension
Plaintiff argues that he experienced discrimination because he was suspended
immediately after the USDA withdrew his interim clearance, while Quick was not. See Pl.’s
Opp’n at 20–21. Again, Plaintiff presents Quick as a comparator of a “different race” and sexual
orientation who “received more favorable treatment.” Wheeler, 812 F.3d at 1115. To present
Quick as a comparator, Plaintiff must “demonstrate that ‘all of the relevant aspects of [his]
employment situation were nearly identical to” Quick’s. Burley, 801 F.3d at 301 (quoting
Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)). When determining whether a plaintiff
and another employee were similarly situated, courts typically look to “the similarity of the
plaintiff’s and the putative comparator’s jobs and job duties, whether they were disciplined by
the same supervisor, and, in cases involving discipline, the similarity of their offenses.” Id.
“While no ‘numerosity’ requirement applies to comparators, such that a ‘single comparator’ may
suffice to support an inference of discrimination, ‘the degree of similarity necessary may vary in
accordance with the size of the potential comparator pool, as well as to the extent to which the
plaintiff cherry-picks would-be comparators.’” Burton v. District of Columbia, 153 F. Supp. 3d
13, 67 (D.D.C. 2015) (quoting Humphries v. CBOCS West, Inc., 474 F.3d 387, 405, 406–07 (7th
Cir. 2007)).
Quick cannot serve as the sole comparator to Plaintiff because their “employment
situation[s]” were not “nearly identical” in “all of the relevant aspects.” Neuren v. Adduci,
Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995). First, Plaintiff has to some
degree “cherry-pick[ed]” Quick from the pool of potential comparators. Burton, 153 F. Supp. 3d
at 67. The USDA turned over records relating to other employees whose clearances were
suspended or withdrawn, many of whom were placed on administrative leave as a result. See Ex.
13 U to Def.’s Mot. at 2–5. At least one of those individuals was a Caucasian employee placed on
administrative leave due to suspension of her clearance. Id. at 5; Ex. Z to Def.’s Reply at 5, ECF
No. 69-5. The agency includes these individuals in its motion for summary judgment, see Def.’s
Mot. at 24–28, but Plaintiff narrows the field of comparators to Quick alone without addressing
these other examples, see Pl.’s Opp’n at 16.
Second, Plaintiff’s “job duties” differed significantly from Quick’s. Courts often look to
the duties attending each employee’s position when evaluating whether they are appropriate
comparators. See Barbour v. Browner, 181 F.3d 1342, 1345 (D.C. Cir. 1999) (concluding that a
GS-12 employee was not similarly situated to another GS-13 employee because the GS-13
performed several duties that the GS-12 did not); Banks v. Perdue, 298 F. Supp. 3d 94, 104
(D.D.C. 2018) (concluding that a jury could find two employees similarly situated in part
because they were both “deputy directors in USDA’s Office of Civil Rights” and were both
“members of the SES”). As Chief Information Officer, Plaintiff “direct[ed] the Information
Technology program area in the [FAS] and [was] responsible for management and oversight of
information technology support.” Ex. A to Def.’s Mot. at 80. The role was classified as GS-15.
Id. In addition to planning and budgeting, Plaintiff’s duties included “security implementation,”
“evaluation of security of program data,” and “assess[ment of] security events.” Id. at 81. The
role also involved travel to overseas posts to provide “IT support” and to “assess the IT needs
and operations at posts and/or to provide training.” Richard Young Decl., Ex. 1 to Pl.’s Opp’n at
¶ 60, ECF No. 64-2. In contrast, as Chief Operating Officer, Quick headed the office that was
“responsible for worldwide management of several agency-level functions.” Ex. N to Def.’s
Mot. at 12. This included “conduct[ing] liaison with principal staff within the USDA and its
agencies, and other Federal entities.” Id. Quick’s position was also part of the Senior Executive
14 Service. Def.’s Statement ¶ 6. It stands to reason that the employees’ different positions, duties,
and accompanying skillsets would affect their respective requirements to maintain security
clearance eligibility, as well as the agency’s ability to deploy them in other roles.
Third, Plaintiff and Quick reported to different supervisors. Plaintiff reported to
Associate Chief Operating Officer Ronald Croushorn, who made the decision to place him on
administrative leave. Ex. F to Def.’s Mot, ECF No. 62-8. The Associate Chief Operating
Officer reported to Quick, who in turn reported to FAS Administrator Isley. Ex. C to Def.’s Mot.
at 3, 5. The Administrator made the decision to suspend Quick. Id. at 3. Plaintiff and Quick
were not “disciplined by the same supervisor” after the agency withdrew or suspended their
clearances, Burley, 801 F.3d at 301, further weakening the probative value of Quick as a
comparator. Compare Banks, 298 F. Supp. 3d at 104 (concluding that two USDA employees
were similarly situated in part because they had the same supervisor) with White v. Tapella, 876
F. Supp. 2d 58, 70 (D.D.C. 2012) (discounting comparator police officers assigned to a different
supervisors) and Huckstep v. Washington Metro. Area Transit Auth., 216 F. Supp. 3d 69, 80
(D.D.C. 2016) (concluding bus drivers assigned to different supervisors were not proper
comparators).
Fourth, just as their duties differed, the employees’ varying positions in the agency’s
hierarchy—Quick two levels higher than Plaintiff and reporting to the head of the FAS—could
be expected to affect the agency’s willingness to maintain Quick for a period of time after
suspension of his clearance. The D.C. Circuit addressed a similar issue in Neuren, concluding
that the difference in seniority between the plaintiff legal associate and another associate
undermined her claim that they were similarly situated. 43 F.3d at 1514. The same problem
applies here when comparing Plaintiff to Quick. Indeed, Quick had served as Chief Operating
15 Officer since March 2011, Ex. N to Def.’s Mot. at 12, meaning that he had worked at the agency
for at least eight years prior to suspension of his clearance. In contrast, Plaintiff had been in his
role for two years and lacked a fully adjudicated clearance. This observation further
differentiates Plaintiff from Quick.
Fifth, the USDA argues that Quick and other potential comparators are inapposite
because they had “final security clearances” while “Plaintiff had only been granted a temporary
or interim clearance, which is given at the discretion of the agency while the investigation and
final adjudication process continues.” Def.’s Reply at 9. Plaintiff can be compared to a
probationary employee that cannot be properly equated to a permanent employee. See McKenna
v. Weinberger, 729 F.2d 783, 789 (D.C. Cir. 1984) (concluding that two “permanent employees”
were “not similarly situated” to a plaintiff probationary employee); Holbrook, 196 F.3d at 262
(concluding that a “probationary” employee was not “similarly situated to a fifteen-year veteran
with supervisory responsibilities”). This adds further daylight between the two individuals.
The only factor that might support Quick’s value as a comparator for Plaintiff’s
suspension is the “similarity of their offenses.” Burley, 801 F.3d at 301. The agency insists that
it suspended and later removed Plaintiff because “[h]e could not maintain the required security
clearance due to his own misconduct.” Def.’s Mot. at 29. Although the agency had discovered
evidence Plaintiff improperly shared his credentials, misused contractor resources, and
participated in unauthorized speaking events at the time Associate Chief Operating Officer
Croushorn decided to suspend him, see Ex. J to Def.’s Mot. at 9–12, Croushorn stated in an
email to Plaintiff that he was “not privy to the factors that led to the decision by the Department
to withdraw [Plaintiff’s] interim secret security clearance,” Ex. 10 to Pl.’s Opp’n at 11, ECF No.
64-11. The decisionmaker was thus aware only of the security clearance withdrawal as a basis
16 for suspension. At the time of Quick’s suspension in October 2019, the agency had similarly yet
to complete its investigation, and it is unclear whether Administrator Isley was aware of any
substantiated misconduct at that time. See generally Ex. L. to Def.’s Mot. The employees’
“offenses” are thus similar in the sense that both were suspended for failure to maintain a
security clearance during ongoing investigations. This is not enough, however, to advance Quick
as a comparator where other dramatic differences existed between the two.
In light of these considerations, the Court concludes that no reasonable juror would
conclude that Quick serves as a proper comparator to Plaintiff, or that any difference in their
treatment demonstrates discriminatory animus. This case can be readily compared to Banks v.
Perdue, a Title VII case in which the plaintiff alleged discriminatory removal from her position
at the USDA. 298 F. Supp. 3d at 98. The court there determined that two employees “were
similarly situated” because “(i) both [p]laintiff and [the comparator] were members of the SES
. . . ; (ii) both were deputy directors in USDA’s Office of Civil Rights; (iii) both shared the same
supervisor . . . ; and (iv) both received an unsatisfactory rating for poor work performance . . .
and were recommended for removal from the SES at the same time.” Id. at 104. Here, in
contrast, the employees’ duties differed significantly, they reported to different supervisors of
different ranks, they occupied different positions in the organization’s hierarchy, they served at
the agency for different periods of time, and one had a fully adjudicated clearance while the
other had an interim clearance. These differences between the two employees’ situations
represent “confounding variables” that prevent “isolat[ion of] the critical independent variable:
complaints about discrimination.” Burton, 153 F. Supp. 3d at 67 (quoting Hnin v. TOA (USA),
LLC, 751 F.3d 499, 504–505 (7th Cir. 2014)). It is true that although the FAS suspended
Plaintiff immediately after withdrawal of his interim clearance, it allowed Quick to continue
17 working for approximately six months. But it is impossible to untangle that six-month delay
from these differences between the employees.
Plaintiff presents no other evidence demonstrating that the FAS or the USDA
“intentionally discriminated against” him when it suspended him due to lack of a security
clearance. Figueroa, 923 F.3d at 1086. Assuming that placement on paid administrative leave is
an adverse employment action, Plaintiff has presented no evidence that would allow a jury to
conclude that the USDA did so because of his membership in a protected class. 2
4. Plaintiff’s Removal
Plaintiff argues that he experienced discrimination in connection with his removal
because “[t]he Administrator decided that Quick would not be removed but that [Plaintiff] would
be.” Pl.’s Opp’n at 21. Plaintiff produces no evidence showing that his removal was based on
discriminatory intent. First, as previously discussed, Quick is not a proper comparator to
Plaintiff, and any differences in the two employees’ treatment may well be explained by the
many other confounding variables. In addition, by the time of their respective removals, the
agency had completed its investigations. The agency believed Plaintiff had shared his login
credentials with contractors, used contractor time for personal tasks, and participated in
unauthorized speaking engagements. See Ex. E to Def.’s Mot. In comparison, the agency
determined that Quick had made a false statement during an earlier 2017 investigation but
determined that the rest of the allegations Plaintiff made against him were unsubstantiated. See
2 The Court notes that Plaintiff appears to have served in his role from January 2015 to February 2016 without a security clearance, which may raise the question as to whether Plaintiff did in fact require the clearance to perform his duties, and whether suspension was necessary when the agency withdrew his interim clearance. The parties do not address this issue, and Plaintiff chooses to rely wholly on comparator evidence to support his claim. See Pl.’s Opp’n at 20–21. The Court declines to grapple with a factual dispute the parties themselves have not found relevant.
18 Ex. N to Def.’s Mot. 2–3. By the time of their respective removals, the offenses of which the
agency was aware were entirely dissimilar, further undermining Quick’s value as a comparator to
Plaintiff.
Second, Plaintiff does not show that he and Quick did receive differential treatment with
respect to removal. When the agency determined it could not place Plaintiff in a position that did
not require a clearance, it removed him after placing him on paid administrative leave for nearly
two years. See Ex. K to Def.’s Mot. at 2; Def.’s Statement ¶¶ 39–40. Administrator Isley
explained that he could not find an alternative position for Plaintiff because “particularly [for]
someone of Mr. Young’s level and training, there would have not been . . . a position” for him
without a security clearance. Ex. L to Def.’s Mot. at 5. When the agency concluded that it
lacked an uncleared position for Quick, it suspended him without pay, as well. Def.’s Statement
¶¶ 58, 61. Quick resigned from his position six weeks later rather than wait for the agency to
remove him. Id. ¶ 59. Plaintiff therefore cannot show that he experienced discriminatory
removal by comparing himself to Quick.
Finally, the agency presents evidence of the broader pool of employees whose clearances
were suspended in the timeframe Plaintiff requested during discovery. It reveals no indication of
broader racial discrimination, and Plaintiff presents no rebuttal nor relies on any of these
individuals as a comparator. 3 The USDA removed four out of the eleven employees whose
clearances were indefinitely suspended. See Def.’s Mot. at 24–27 (collecting supporting
exhibits). Two of the removed individuals were Caucasian, and two were African American
3 Plaintiff instead contends that “there is also evidence that other white employees were similarly the subject of employee misconduct investigations without action on their clearances.” Pl.’s Opp’n at 21. This argument attacks the decision to withdraw Plaintiff’s interim clearance and not the decision to suspend him following that withdrawal. As such, the argument runs headlong into Egan.
19 (including Plaintiff). Id. Five other individuals—two Caucasian employees (including Quick),
two Hispanic employees, and one African American employee—retired or resigned before the
agency removed them. Id. Only two individuals—one Hispanic employee and one Caucasian
employee—remained at the agency. Id. One of those individuals, for instance, was an
Employee and Labor Relations Specialist whose position did not require a clearance. Id. at 25.
This evidence reveals no pattern in which employees with suspended clearances were retained or
removed based on membership in a protected class.
Other than pointing to Quick and these other employees, Plaintiff identifies no additional
evidence supporting his claim that the USDA removed him because of his membership in a
protected class. See Pl.’s Opp’n at 20–21. As there is no genuine dispute of material fact for a
jury to resolve, Defendant is entitled to summary judgment on Plaintiff’s employment
discrimination claim.
B. Retaliation
Plaintiff claims that he was placed on administrative leave “within a week or so of
seeking counseling” through the agency’s Equal Employment Opportunity (“EEO”) process.
Compl. ¶ 24. Plaintiff thus contends that the investigation and his placement on administrative
leave were unlawful “retaliatory conduct.” Id. ¶ 39. The USDA argues that the evidence
demonstrates that the agency suspended and then removed Plaintiff due to withdrawal of his
interim clearance, not as retaliation for his engagement in protected activity. Def.’s Mot. at 29–
30. Plaintiff responds that he has established a prima facie case that the agency retaliated against
him for filing an Equal Employment Opportunity complaint. Pl.’s Opp’n at 22; Ex. 5 to Pl.’s
Opp’n, ECF No. 64-6 (Richard Young EEO Counselor report). The Court agrees with the
agency.
20 To succeed on a retaliation claim, a plaintiff needs to show “that she engaged in protected
activity, that she suffered an adverse employment action, and that there was a causal link
between the former and the latter.” Allen, 795 F.3d at 39. Plaintiff contends that the “[c]lose
temporal proximity between an EEO complaint and a personnel action is sufficient to establish a
prima facie case.” Pl.’s Opp’n at 22. Yet while temporal proximity may suffice to establish a
prima facie case of discrimination within the McDonnell Douglas burden-shifting framework,
see Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001), once an employer provides
legitimate, non-retaliatory reasons for its action, “positive evidence beyond mere proximity is
required to defeat the presumption that the proffered explanations are genuine.” Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). Because the USDA has proffered a non-retaliatory
reason for its employment actions, “the burden-shifting framework falls away.” Allen, 795 F.3d
at 39. The question is now whether there is “sufficient evidence for a reasonable jury to find that
the employer’s asserted nondiscriminatory or non-retaliatory reason was not the actual reason
and that the employer intentionally discriminated or retaliated against the employee.” Id.
(cleaned up).
The parties do not dispute that Plaintiff sought EEO counseling on February 24, 2017,
approximately one week before the USDA suspended him on March 2, 2017. Def.’s Reply to
Pl.’s Statement of Material Facts ¶¶ 11–13; Ex. 5 to Pl.’s Opp’n. Plaintiff additionally asserts
that the Agency did not begin its investigation into his activities until March 9, 2017, after he
approached the EEO. Def.’s Reply to Pl.’s Statement of Material Facts ¶ 13. As evidence of
this, Plaintiff points to the agency’s June 25, 2017, investigative report showing that witness
interviews began on March 9, 2017. Ex. 7 to Pl.’s Opp’n at 5, ECF No. 64-8. That argument
makes little sense given that the agency had already uncovered what it believed to be unreported,
21 negative information regarding Plaintiff’s outstanding civil judgment at the time it withdrew his
interim security clearance on March 2, 2017, meaning that the agency necessarily would have
started investigating on or before that date. See Ex. E to Def.’s Mot. In addition, misconduct
investigations involve more than just witness interviews, and the full investigative report shows
that the agency’s Personnel Misconduct Investigator began reviewing Plaintiff’s emails on
November 23, 2016. Ex. J. to Def.’s Mot. at 9. The Director of FAS’s Compliance, Security and
Emergency Planning Division explained in deposition testimony that “investigative activity
began in November of 2016,” but that her office “did not notify the Department until March 2nd,
once [it] had sufficient information that substantiated some of the allegations in that
investigation.” Ex. H to Pl.’s Mot. at 8, ECF No. 62-10. Plaintiff’s contention that the
investigation began after he sought EEO counseling is plainly refuted by the record.
The record similarly contains no evidence of a causal connection between Plaintiff’s EEO
complaint and his suspension. Internal USDA communications show that the Director of FAS’s
Compliance, Security and Emergency Planning Division reported on March 2, 2017, that it had
found a civil judgment of which it was previously “not aware.” Ex. E to Def.’s Mot at 2. In a
letter the following day, Plaintiff’s supervisor explained that “I received notice that your interim
Secret Security clearance was suspended on March 2, 2017. This letter notifies you that I am
placing you on administrative leave, until further notice.” Ex. F to Def.’s Mot. at 2. Plaintiff
himself provides agency email records between security personnel and Plaintiff’s supervisor
showing that he suspended Plaintiff as a direct result of the security clearance withdrawal. See
Ex. 10 to Pl.’s Opp’n. Security staff informed Plaintiff’s supervisor that “[p]rocedurally, since
we were given notification of the withdrawal of the Interim Secret security clearance and that
was provided to you via the email I forwarded on March 2, 2017, you took appropriate,
22 immediate action” by suspending Plaintiff. Id. at 9. This documentation presents strong
evidence that the agency placed Plaintiff on administrative leave as a direct result of withdrawal
of his clearance and for no other reason.
Plaintiff presents no evidence tending to show that the agency suspended him in
retaliation for his EEO complaint rather than withdrawal of his clearance. He cannot point to
“‘changes and inconsistencies’ in the [USDA’s] given reasons for the decision,” evidence that
the USDA “failed to ‘follow established procedures or criteria’” when it investigated and
suspended him; 4 or documentation that the USDA’s “‘general treatment of’ . . . employees who
asserted their Title VII rights . . . was worse than its treatment of . . . employees who did not
assert their Title VII rights.” Allen, 795 F.3d at 40 (quoting Brady v. Off. of Sergeant at Arms,
520 F.3d 490, 495 n.3 (D.C. Cir. 2008)). Nor does he provide anything indicating that the
USDA’s “proffered reasons are ‘unworthy of credence.’” Id. (quoting Jones v. Bernanke, 557
F.3d 670, 678 (D.C. Cir. 2009)).
Plaintiff points the Court to nothing outside the temporal proximity between his EEO
counseling and his suspension. See Pl.’s Opp’n at 22. On its own view of the record, the Court
finds no other evidence tending to show that the individuals who decided to suspend Plaintiff
knew about his Equal Employment Opportunity complaint or took adverse employment action
against him because of the complaint. “[J]udgment in an employer’s favor is appropriate where
the plaintiff’s evidence calling the employer’s proffered reason into doubt is weak, and the
record also contains ‘abundant and uncontroverted independent evidence that no discrimination
[or retaliation] had occurred.’” Allen, 795 F.3d at 40 (quoting Reeves v. Sanderson Plumbing
4 Plaintiff does challenge the procedures the Agency used for “revocation or suspension of a security clearance.” Def.’s Reply to Pl.’s Statement of Material Facts ¶ 15. This issue is not actionable under Title VII in light of Egan.
23 Prods., Inc., 530 U.S. 133, 148 (2000)). As a result, the agency is entitled to summary judgment
on Plaintiff’s retaliation claim.
C. Hostile Work Environment
Finally, Plaintiff claims that USDA officials “subjected Plaintiff to harassment because of
his race, gender and sexual orientation and retaliatory harassment because of Plaintiff’s
complaints.” Compl. ¶ 41. He asserts that “[t]he harassment was severe and/or pervasive and
negatively impacted Plaintiff’s ability to perform his position.” Id. The USDA contends the
evidence shows that Plaintiff was “not subject to a hostile work environment permeated with
discriminatory intimidation, ridicule, and insult” as required for relief under Title VII. Def.’s
Mot. at 31. Plaintiff asserts that an official threatened him and that Quick instructed a contractor
to hire a private investigator to follow him. Pl.’s Opp’n at 22–23. The USDA’s position
prevails.
To succeed on a hostile work environment claim, “a plaintiff must show that his
employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)). The standard “presents a high bar,” as “Title VII is not meant to be a general
civility code.” Foxworth v. McDonough, No. 23-cv-2195, 2024 WL 111761, at *6 (D.D.C. Jan.
10, 2024). In evaluating a hostile-environment claim, a court “looks to the totality of the
circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550
F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). “[T]o
demonstrate a hostile work environment in violation of Title VII, a plaintiff ‘must always prove
24 that the conduct at issue was not merely tinged with offensive . . . connotations, but actually
constituted discrimination . . . because of’ the employee’s race” or sex. Burton, 153 F. Supp. 3d
at 85 (quoting Oncale, 523 U.S. at 81); Bryant v. Brownlee, 265 F. Supp. 2d 52, 64 (D.D.C.
2003) (granting motion to dismiss hostile work environment complaint where alleged events
lacked “racial or age-related overtones”); Harris v. Wackenhut Servs., Inc., 419 F. App’x 1, 2
(D.C. Cir. 2011) (citing Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1123 (D.C. Cir. 2002)
(concluding that evidence that “bears no connection to [the plaintiff’s] race … cannot support a
hostile work environment claim”).
None of the events Plaintiff cites had any discernable connection to his membership in a
protected class, such that no reasonable jury could find he was subjected to a hostile work
environment based on his race or sexual orientation. Plaintiff cites his declaration stating that an
agency undersecretary rebuffed complaints about Quick’s hiring practices by asserting that the
undersecretary “takes care of his friends.” Ex. 1 to Pl.’s Opp’n ¶ 49; see also Pl.’s Opp’n at 23.
Plaintiff does not explain how this exchange relates to his race or sexual orientation, and the
inference is not apparent to the Court. Plaintiff also asserts that another official hired a private
investigator to follow him but provides no details about when and for how long this occurred.
Ex. 1 to Pl.’s Opp’n ¶ 58; see also Pl.’s Opp’n at 23. It is again unclear how this event reflects
animus based on Plaintiff’s membership in a protected class. Finally, Plaintiff states in his
opposition that a contractor “falsely accused him of hiring contractors who were friends
(damaging his reputation) and oddly claimed he had done something wrong by driving a luxury
vehicle.” Pl.’s Opp’n at 23 (citing Ex. 1 to Pl.’s Opp’n ¶ 58). 5 These events are not supported
5 Plaintiff’s reference to his vehicle may relate to an allegation that Plaintiff improperly used a Mercedes-Benz leased by a contractor. See Ex. J to Def.’s Mot. at 4.
25 by any admissible evidence in the record, and they once again do not demonstrate animus
“because of [Plaintiff’s] race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1).
The only reference Plaintiff makes to harassment based on discriminatory animus appears
in his statement of material facts, citing “microaggressions and other conduct he believed to be
on the basis of his race and sexual orientation.” See Def.’s Reply to Pl.’s Statement of Material
Facts ¶ 11. That paragraph cites a form related to Plaintiff’s Equal Employment Opportunity
complaint, which contains no relevant details and appears to be missing forty-nine of the fifty-
one pages in the document. See id. (citing Ex. 5 to Pl.’s Opp’n). These conclusory allegations
unsupported by specific facts in the record are insufficient to survive summary judgment and
create a triable issue of fact for a jury. See Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S.
Dep’t of Transp., 564 F.3d 462, 466 (D.C. Cir. 2009); Greene, 164 F.3d at 675.
While Plaintiff’s facts may support some form of whistleblower retaliation claim, they do
not evince a discriminatory work environment. See Stella, 284 F.3d at 142 (observing that
“whistleblowing activity” includes “disclosing illegal conduct, gross mismanagement, gross
wasting of funds, or actions presenting substantial dangers to health and safety”); Mintzmyer v.
Dep’t of Interior, 84 F.3d 419, 423 (Fed. Cir. 1996) (“[A] discrimination claim is distinct from a
whistleblowing claim.”). Nor are they sufficiently “extreme to amount to a change in the terms
and conditions of employment.” Faragher, 524 U.S. at 788. Because Plaintiff fails to establish
a genuine dispute of material fact in relation to his hostile work environment claim, the USDA is
entitled to summary judgment on that issue, as well.
26 V. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: August 26, 2024 RUDOLPH CONTRERAS United States District Judge