MOUNT v. NAPOLITANO

Filing 30

MEMORANDUM OPINION granting Defendants' 26 Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on March 31, 2016. (lckbj3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JASON MOUNT,
Plaintiff,
v.
JEH CHARLES JOHNSON,
Secretary, Department of
Homeland Security,
Defendant.

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Civil Action No. 12-cv-1276 (KBJ)

MEMORANDUM OPINION
Plaintiff Jason Mount, a Caucasian man, is employed as a Supervisory Special
Agent at the Department of Homeland Security (“DHS” or “Defendant”). On July 31,
2012, Mount filed the instant complaint pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e–2000e-17, alleging that DHS discriminated against him on the
basis of his gender and race when it did not select him for any one of the 43 different
positions within the agency’s offices nationwide for which he had applied. (See
Compl., ECF No. 1, ¶¶ 123–143 (Counts I and II).) The complaint also alleges that
these various non-selections constituted retaliation for Mount’s previous filing of an
EEO discrimination charge against his supervisor. (See id. ¶¶ 144–151 (Count III).)
On April 10, 2014, this Court dismissed Counts I and II of Mount’s complaint, and
partially dismissed Count III, on the grounds that Mount had failed to exhaust his
administrative remedies with respect to 42 of the 43 non-selection claims in the

complaint. (See Mem. Op., ECF. No. 13, at 29–30.) 1 The only claim that remained at
that point—and the one that is currently at issue—is Mount’s claim that DHS retaliated
against him by not selecting him for a Los Angeles Assistant Special Agent-in-Charge
(“ASAC”) position on July 14, 2011. (See id. at 30 & n.10.)
Before this Court at present is Defendant’s motion for summary judgment on the
Los Angeles ASAC non-selection retaliation claim. (Def.’s Mot. for Summ. J. (“Def.’s
Mot.”), ECF No. 26.) Defendant assumes arguendo and for the purposes of its motion
that Plaintiff has established a prima facie case of retaliatory non-selection, and argues
that summary judgment should be granted in DHS’s favor nevertheless because the
agency had a “legitimate-non-retaliatory reason for its actions that Plaintiff cannot
show to be pretextual[.]” (Id. at 12.) According to Defendant, the agency selected
Hoang Truong for the position instead of Mount because DHS believed that Truong was
better qualified for the position based on objective criteria. (Id.) Defendant also
maintains that Mount’s assertions of temporal proximity cannot, standing alone,
establish a retaliatory motive. (See id. at 22-26.) In response, Mount maintains that
DHS’s proffered reasons for not selecting him are pretextual because he had superior
qualifications that Truong lacked (see Mem. in Support of Pl.’s Opp’n to Def.’s Mot.
(“Pl.’s Opp’n”), ECF No. 27-1, at 8–10), and because the experience-related criteria
that DHS uses to make its hiring decisions were inappropriately applied to him (see id.).
Mount further argues that, solely because of the close temporal proximity between
Mount’s protected activity and DHS’s allegedly unreasonable non-selection, a jury

1

Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.

2

could reasonably conclude that the purportedly legitimate reasons that DHS seeks to
advance are a pretext for unlawful retaliation. (See id. at 10–11.)
For the reasons explained fully below, this Court finds that no reasonable jury
could find that DHS’s legitimate, non-retaliatory reason for hiring Truong for the
position was a pretext and that the true reason for the non-selection was retaliation.
Thus, Defendant’s motion will be GRANTED, and summary judgment will be entered
in favor of Defendant on the retaliation claim based on Mount’s non-selection for the
Los Angeles ASAC position. A separate order consistent with this Memorandum
Opinion will follow.
I. BACKGROUND
A.

Factual Background

The basic facts regarding Mount’s service as an employee of DHS, his filing of a
complaint against his supervisor, and the agency’s review of his application for a
position in the Los Angeles ASAC are recounted below and are not disputed, unless
otherwise noted.
Mount began his employment at DHS when he was hired as a Special Agent of
the U.S. Customs Service on September 3, 2001. (See Compl. ¶ 13; see also Def.’s
Stmt. of Material Facts, ECF. No. 26-1, ¶ 16; Pl.’s Stmt. of Material Facts, ECF No. 272, ¶ 16.) 2 Over time, Mount was promoted to Branch Chief / Supervisory Special Agent
(level GS-15) at ICE Headquarters in Washington, D.C. (See Compl. ¶ 14.) In

2

The name and structure of the U.S. Customs Service changed throughout the course of Mount’s
employment. When he was first hired, it was known as the U.S. Customs Service; it later became the
United States Immigration and Customs Enforcement (“ICE”). (See Compl. ¶ 13.) This agency is
presently under the supervision of the DHS.

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November of 2010, Mount filed an administrative gender-discrimination complaint with
the agency’s EEO office, alleging that ICE was discriminating against him based on his
gender because the agency did not grant his requests for an office, while his female
counterparts had received offices. (See Compl. ¶¶ 15, 22; Report of Investigation
(“ROI”), Ex. A to Def.’s Mot., ECF No. 26-3, at 12.)
On March 7, 2011, while this EEO complaint was pending, ICE announced a
vacancy in a GS-15 ASAC position in Los Angeles, California. (See Def.’s Stmt. of
Material Facts ¶ 2; Pl.’s Stmt. of Material Facts ¶ 2.) The advertised position was in
the ICE Homeland Security Investigations directorate (“HSI”), the division that
“investigates immigration crime, human rights violations and human smuggling,
smuggling of narcotics, weapons and other types of contraband, financial crimes,
cybercrime and export enforcement issues.” (ROI at 92.) The position was “primarily
that of a second or third line supervisor[,]” and the duties included, among other things,
the “management and direction of all investigation operations and administrative
activities located within the Field Office’s geographic boundaries”; the management of
the activities of the program “through subordinate supervisors who supervise staff
involved in investigation and/or intelligence gathering functions”; the evaluation of
subordinate supervisors as they undertake to evaluate nonsupervisory employees; and
the review and approval of disciplinary actions. (Def.’s Stmt. of Material Facts ¶¶ 3–4;
Pl.’s Stmt. of Material Facts ¶¶ 3–4; ROI at 145–51.) The announcement for the
position also stated that the successful applicant must “make continuous studies of
investigative operations to evaluate the effectiveness of local operations and brief
same” and “must [also] be able to develop and maintain successful relationships and

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information networks with internal and external officials and stakeholders in all levels
of government[.]” (Def.’s Stmt. of Material Facts ¶ 4; Pl.’s Stmt. of Material Facts
¶ 4.)
A preliminary interview panel consisting of Special Agent-in-Charge (“SAC”)
Claude Arnold, Deputy SAC Kevin S. Kozak, and Assistant SAC Debra Parker,
reviewed the applications of three GS-15 candidates—including Mount—and several
GS-14 candidates, including Truong. (Def.’s Stmt. of Material Facts ¶ 8; Pl.’s Stmt. of
Material Facts ¶ 8; ROI 145–51.) SAC Arnold then wrote a memorandum that
recommended giving the position to Truong; several reasons for that recommendation
were also provided. (See Def.’s Stmt. of Material Facts ¶ 10; Pl.’s Stmt. of Material
Facts ¶ 10.) Specifically, the memo emphasized Truong’s “operational expertise,
administrative experience and [his] understanding of the strategic planning process
necessary to being an effective ASAC[,]” and it also highlighted certain aspects of his
work experience, including his service as a criminal investigator for fifteen years, his
position as a National Program Manager at HSI Headquarters for two years, and the fact
that he worked “as an Operations Manager in Operations West for seven months.”
(SAC Arnold Memo, Ex. C to Def.’s Mot., ECF No. 26-5, at 2.) The interview panel
concluded that the Los Angeles ASAC position should be offered to Truong, after
which a separate (intermediate) selection panel reviewed the documentation and also
recommended that Truong be given the job. (See Def.’s Stmt. of Material Facts ¶¶ 9,
12; Pl.’s Stmt. of Material Facts ¶¶ 9–12.) Acting Deputy Associate Director Michael
Holt then offered the position to Truong based on both panels’ recommendations. (See
Def.’s Stmt. of Material Facts ¶ 13; Pl.’s Stmt. of Material Facts ¶ 13.)

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Notably, the parties here vigorously dispute whether or not there was unanimity
among the panelists with respect to the conclusion that Truong was the best candidate—
DHS asserts that “[a]ll three [interview] panel members agreed that [Truong]. . . was
the best qualified candidate” and that the intermediate selection panel “reviewed the
documentation and unanimously concurred” (Def.’s Stmt. of Material Facts ¶ 9, 12
(emphasis added)), while Mount maintains that at least one member of the interview
panel, SAC Arnold, was not, in fact, evaluating the candidates’ qualifications
objectively, and instead, had decided “not [to] select [Mount] because of his prior
administrative complaint[,]” effectively skewing the observations in his
recommendation memorandum accordingly (Pl.’s Stmt. of Material Facts ¶¶ 9, 10, 12).
On August 29, 2011, after he was informed that he would not be appointed as the
Los Angeles ASAC, Mount amended his open EEO complaint to include an additional
claim of retaliation based on the Los Angeles ASAC non-selection. (ROI at 20.) He
also allegedly requested reassignment to another office, and the following spring, he
was voluntarily downgraded to his present position as a Supervisory Special Agent
(level GS-14) stationed in Boston, Massachusetts. (See Compl. ¶ 122 (asserting that
“he begrudgingly accepted the . . . position in Boston . . . on March 4, 2012”); see also
Ex. F to Def.’s Mot., ECF No. 26-8, Mount Dep. 4:18–24, 5:1–13, Nov. 18, 2014.)
B.

Procedural History

Mount filed the instant lawsuit on July 31, 2012. His complaint alleges that DHS
discriminated and retaliated against him by unreasonably failing to select him for the
Los Angeles ASAC position, as well as 42 other distinct employment positions that he
applied for within the agency between January 19, 2011, and April 25, 2012. (See

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Compl. ¶¶ 19–121.) After this Court granted the agency’s partial motion to dismiss and
dismissed the 42 other non-selection claims for lack of exhaustion (see generally Mem.
Op. & Order, ECF Nos. 13–14), the parties proceeded to discovery on the retaliation
claim regarding the Los Angeles ASAC position (see Scheduling Order, ECF No. 22),
and when the discovery period closed, Defendant filed the present motion for summary
judgment.
In the motion, Defendant contends that DHS had a legitimate, non-retaliatory
reason to select Truong over Mount, insofar as the selection officials believed that
Truong was better qualified for the position. (See Def.’s Mot. at 13–16.) Among the
various facts that Defendant identifies to support this assertion is the contention that
Truong “had more field experience as a federal agent”; that he had experience
overseeing Title III investigations as a permanent first-line supervisor; and that he had
worked “on the South West border, where many criminal operations ultimately
impacted the Los Angeles Office”—experiences that Mount lacked. (Id. at 14–15.)
Furthermore, according to DHS, “Truong met the experience qualifications set out in
the Hiring and Career Progression policy for GS-1811-15 ASAC, while [Mount] did
not.” (Id. at 15.) DHS further argues that Mount cannot present any evidence showing
that these legitimate reasons for hiring Truong are pretextual, and that Mount’s only
argument regarding causation relies solely on temporal proximity—i.e., that the Los
Angeles ASAC non-selection was made soon after SAC Arnold discovered Mount’s
EEO complaint—and, as such, is insufficient to establish retaliation. (See id. at 22.)
In his brief in opposition to the summary judgment motion, Mount maintains that
DHS’s proffered reasons for not selecting him to the Los Angeles ASAC position are a

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pretext for retaliation because (1) he was not supposed to be subjected to the criteria in
the Hiring and Career Progression policy and was independently qualified for the
position; and (2) he had superior qualifications to those of Truong. (See Pl.’s Opp’n at
8–11.) In support of these contentions, Mount claims to have had certain professional
experiences that Truong allegedly lacked. (See id. at 9–10.) Moreover, according to
Mount, the true motive behind SAC Arnold’s non-selection was retaliation for his EEO
complaint, which Mount contends can be inferred by SAC Arnold’s unreasonable belief
that Mount was less qualified and knowledge “that [Mount] was qualified for the ASAC
position according to the Criminal Investigator Hiring and Career Profession
Directive[,]” and his “aware[ness] of [Mount’s protected activity] shortly before he
decided not to select” him. (Id. at 10–11.)
Defendant’s motion for summary judgment is now ripe for the Court’s review.
II.

LEGAL STANDARDS
A.

Motions For Summary Judgment Under Rule 56

Summary judgment may be granted when the pleadings and evidence
demonstrate that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine
issue of material fact exits, the Court must view all facts, and the reasonable inferences
drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Crop., 475 U.S. 574, 587 (1986).
“A fact is material if a dispute over it might affect the outcome of a suit” and an
issue is “genuine if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)
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(internal quotation marks and citation omitted). Thus, “[t]he mere existence of some
alleged [non-material] factual dispute between the parties will not defeat summary
judgment[,]” id. (internal quotation marks and citation omitted), and “a complete failure
of proof concerning an essential element of the nonmovant’s case necessarily renders
all other facts immaterial” warranting the Court’s grant of summary judgment. Celotex
Corp., 477 U.S. at 323.
B.

Plaintiff’s Burden Of Proof In Title VII Retaliation Cases

Title VII of the Civil Rights Act of 1964 prohibits the federal government from
retaliating against employees who engage in protected activity, including complaining
of employment discrimination. 42 U.S.C. § 2000e-3(a); see also Jones v. Bernanke,
557 F.3d 670, 677 (D.C. Cir. 2009) (citing Montgomery v. Chao, 546 F.3d 703, 706
(D.C. Cir. 2008)). Where a plaintiff claims retaliation in the form of a non-selection,
he must present sufficient evidence to “show: (1) that [he] engaged in a statutorily
protected activity; (2) that the employer took an adverse personnel action;[] (3) that a
causal connection existed between the two . . . ; (4) that he applied for an available job;
and (5) that he was qualified for that position.” Morgan v. Fed. Home Loan Mortgage
Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) (first alteration in original) (open
parentheses added) (internal quotation marks and citation omitted). In the absence of
direct evidence of these elements, non-selection retaliation claims brought under Title
VII trigger the familiar burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009)
(observing that “[r]etaliation claims based upon circumstantial evidence are governed
by the three-step test of McDonnell Douglas”).

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The McDonnell-Douglas framework involves following a three-part protocol.
First, a plaintiff must establish a prima facie case of prohibited discrimination, see
McDonnell Douglas, 411 U.S. at 802, by showing 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.” Woodruff v. Peters,
482 F.3d 521, 529 (D.C. Cir. 2007) (citation omitted). Once a plaintiff establishes this
prima facie case, the burden of production then shifts to the employer to articulate
legitimate, non-retaliatory reasons for the challenged employment decision. See
McDonnell Douglas, 411 U.S. at 802. In the non-selection context, the employer does
not need to prove that the person who was hired in plaintiff’s stead necessarily had
superior objective qualifications for the position; rather, the only the burden is that of
articulating the nondiscriminatory reasons for its hiring decision. Tex. Dep’t of Comm.
Affairs v. Burdine, 450 U.S. 248, 260 (1981). If the employer proffers a legitimate,
nondiscriminatory reason, “‘the presumption [of retaliation] raised by the prima facie
case is rebutted’ and ‘drops from the case.’” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1289 (D.C. Cir. 1998) (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507
(1993)). As a result, the burden then shifts back to the complainant to discredit the
employer’s explanation by showing that the employer’s stated reason for the plaintiff’s
rejection was pretext, and that the real reason for the non-selection was retaliation for
the plaintiff’s engagement in protected activity. See id. at 1288–89; cf. Brady v. Office
of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2009) (explaining that, after a
defendant sets forth a legitimate non-discriminatory or non-retaliatory reason, “the
district court must resolve one central [two-part] question: Has the [plaintiff] produced

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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”?). In the
context of summary judgment, this means that once “‘the defendant has done everything
that would be required of him if the plaintiff had properly made out a prima facie case[]
. . . [then] whether the plaintiff really [made out a prima facie case] is no longer
relevant[.]’” Rochon v. Lynch, No. 13-cv-00131, 2015 WL 5921734, at *7 (D.D.C. Oct.
9, 2015) (quoting Brady, 520 F.3d at 494) (first and third alterations in original). In
other words, when the defendant articulates a legitimate non-retaliatory reason for the
challenged adverse employment action, the burden-shifting framework falls away and
the court’s sole focus becomes whether or not Plaintiff can provide sufficient evidence
for “a reasonable jury [to] not only disbelieve the employer’s reasons, but [also]
conclude that the real reason the employer took a challenged action was a prohibited
one.” Walker v. Johnson, 798 F.3d 1085, 1093 (D.C. Cir. 2015).
Notably, a plaintiff must show that a reasonable fact finder could reach both
conclusions in order to survive a summary judgment challenge—that is, providing
sufficient evidence for a jury to reject the defendant’s reason is not sufficient “if it is
nevertheless impossible for a rational factfinder to conclude the action was
discriminatory.” Rochon, 2015 WL 5921734 at *7 (citing Giles v. Transit Emps. Fed.
Credit Union, 794 F.3d 1, 9 (D.C. Cir. 2015)). Conversely, “an employer would be
entitled to judgment as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a
weak issue of fact as to whether the employer’s reason was untrue and there was

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abundant and uncontroverted independent evidence that no discrimination [or
retaliation] had occurred.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000) (citations omitted). The evidence to be assessed in evaluating whether or
not the plaintiff has satisfied this burden includes “(1) the plaintiff's prima facie case;
(2) any evidence the plaintiff presents to attack the employer’s proffered explanation
for its action; and (3) any further evidence of [retaliation] that may be available to the
plaintiff (such as independent evidence of [retaliatory] statements or attitudes on the
part of the employer).” Waterhouse v. District of Columbia, 298 F.3d 989, 993 (D.C.
Cir. 2002) (quotation marks and citation omitted).
III.

ANALYSIS
In its motion for summary judgment, DHS argues that judgment should be

entered in its favor because the agency had a legitimate non-retaliatory reason for not
selecting Mount for the Los Angeles ASAC position (Truong was the most qualified
applicant), and Mount has failed to create a genuine issue of material fact regarding the
pretextual nature of the proffered reason. (See Def.’s Mot. at 22–26.) Plaintiff’s
primary contention in response to the agency’s argument is that a jury could infer that
DHS’s proffered reason for the non-selection is pretextual because he was significantly
better qualified than Truong, despite not meeting the criteria in the ASAC Criminal
Investigator Hiring and Career Progression Directive (see Pl.’s Opp’n at 8–10), and that
the temporal proximity between the non-selection and his protected activity is sufficient
to support a reasonable inference that DHS retaliated against him when it offered the
position to Truong (see id. at 10–11). For the reasons explained below, this Court not
only disagrees with Mount’s assessment of the strength of his evidence, it concludes

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that Mount has ultimately failed to carry his burden of showing that a reasonable jury
could find DHS’s proffered reason was pretextual and that retaliation was the real
motive for the challenged non-selection.
A.

No Reasonable Jury Could Conclude That DHS’s Stated Reason For
Selecting Truong Over Mount Was Pretextual

DHS has articulated a legitimate, non-retaliatory reason for Mount’s nonselection for the Los Angeles ASAC position: the fact that, in the reasoned judgment of
the various selection officials, Truong was better qualified for the job. Defendant has
offered various pieces of evidence demonstrating that the relevant decisionmakers
actually reached this determination, and this evidence also demonstrates that this
decision was an eminently reasonable one.
First, the record demonstrates that, in contrast to Mount, Truong satisfied the
experience-related qualifications for the ASAC position that are laid out in the ICE
Criminal Investigator Hiring and Career Progression Directive. (ICE Criminal
Investigator Hiring and Career Progression Directive (“Directive”), Ex. G to Def.’s
Mot., ECF No. 26-9, at 7.) Section 5.2(3)(b) of the Directive specifically establishes
the relevant criteria:
GS-1811-15 Assistant Special Agent in Charge (ASAC) or Tier 1 Attaché):
Completion of a HQ tour of 18 months, and:
i)

A combined 24 months as a permanent ICE Group Supervisor, first-line
RAC, or Assistant Attaché (GS-1811-14); or

ii)

Twelve months as a permanent second-line RAC (GS-1811-14) or Tier 2
Attaché (GS-1811-15); or

iii)

A combined 24 months with 12 months as a permanent ICE Group
Supervisor, Assistant Attaché, and/or first-line RAC (GS-1811-14 ), and
12 months as any other permanent ICE GS-1811-14 supervisor position.

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(Id. § 5.2(3)(b)) Defendant points out that Truong satisfied these criteria insofar as he
had completed a headquarter tour of at least 18 months by serving as a Senior Special
Agent/Operations Manager in Operations West for 7 months and as a Program Manager
in the Undercover Operations Unit for over 2 years, (see Ex. B to Def.’s Mot., ECF No.
26-4, Arnold Dep. 44:8–22, Nov. 18, 2014), and he also had experience as a permanent
ICE Group Supervisor totaling at least 2 years and 7 months, which exceeded the
combined 24 months requirement in subsection (i) (see id. 48:18–49:2; Def.’s Mot. at
19). As explained below, Mount has argued that these criteria should not have been
applied to him (see Pl.’s Opp’n at 4); however, he concedes that, if properly applied, he
does not meet these criteria (see Ex. B to Def.’s Mot., ECF No. 26-8, Mount Dep. 28:7–
24, Nov. 18, 2014). 3
Furthermore, Defendant points to evidence that indicates that not only was
Truong sufficiently qualified for the position, but he was also arguably better qualified
than Mount. The memorandum that SAC Arnold penned after the initial panel interview
described Truong’s operational expertise, grasp of the strategic planning process, and
“wealth of administrative experience essential to an ASAC.” (SAC Arnold Memo at 2.)
And it is not disputed that Truong’s professional record included 15 years of experience
as a criminal investigator and 3 years of experience as a Group Supervisor, as well as
experience supervising HSI investigative disciplines and the investigative service group
for SAC San Diego, and work as a National Program Manager at HSI Headquarters,

3
Mount did not have the requisite permanent supervisory experience to meet the Directive criteria.
(See Mount Dep. 28:7–24.) This is because, among other things, Mount’s only first-line supervisory
field experience was “in an acting capacity” when he would temporarily supervise agents directly at
JFK Airport if “the supervisor was out for a week or on vacation” (id. 40:16–25, 41:3–5), which falls
far short of the permanent 12 or 24 month experience requirement in every subsection.

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where he “was responsible for authoring policy, leading undercover field review teams,
and revising curricula for all the HSI undercover schools.” (Id.) The memorandum
also provides detailed reasons for recommending Truong over all of the other
candidates for the position—a contemporaneous account of the decisionmakers’
rationale that explains Truong “distinguished himself” based on having had
administrative experiences that were “more operationally based” that the other
candidates and were in parts of the country where many criminal operations impact the
Los Angeles Office (i.e., the South West border). (Arnold Dep. 76:3–77:20, 80:13–18.)
Additionally, ASAC Parker, another member of the interview panel, provided a
declaration in which she explained that Truong “was a superior candidate to . . . Mount
because Truong had prior field-level supervisory experience, and as administrative
overseer for a certified undercover operation, was familiar with a broader range of
programmatic areas within HSI’s purview.” (Decl. of Debra Parker, ECF No. 26-14,
¶ 3.) The record also plainly supports DHS’s contention that the three members of the
separate selection panel were unanimous in their conclusion that Truong was better
qualified: one panelist based his selection largely upon Truong’s experience as a firstline field supervisor and the fact that he met the Directive criteria (see Decl. of Robert
Rutt, ECF No. 26-15, ¶ 2), while another concluded, apparently independent of the
other panel members, that Truong’s varied experience as a Group Supervisor in several
HSI programmatic areas and in HSI headquarters made him the more qualified
candidate (Decl. of Janice Ayala, ECF No. 26-12, ¶ 2), and the third emphasized that
not only had Truong “met the career path criteria for selection” but also that “the

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selection was fully justified by SAC Arnold based on the needs for his office[]” (Decl.
of John P. Woods, ECF No. 26-16, ¶ 2.)
Given this (well-supported) set of legitimate reasons for the non-selection,
Mount must, at the very least, point to record evidence that is sufficient for a reasonable
jury to disbelieve the veracity of that reason. See Johnson, 798 F.3d at 1093. To this
end, he tries valiantly to cast doubt upon DHS’s proffered reasons and infer retaliation,
but this Court finds that his efforts fall far short of giving rise to a reasonable inference
of retaliation under the circumstances presented here.
For example, Mount argues that the Defendant’s proffered rationale was not the
real reason for his non-selection because the agency erroneously judged his
qualifications under the Directive’s new criteria, from which he was purportedly
exempted under the Directive’s “Grandfather Clause”. (See Pl.’s Opp’n at 8–9.) It is
patently clear from the record, however, that Mount was not excused from the otherwise
applicable Directive criteria via the grandfather clause, because that clause only
exempts applicants who are applying for the same position level as the one they already
hold, not those who, like Mount, were seeking to change their position on or after the
effective date of the new qualifications. (See Directive § 2.10 (explaining that,
although the requirements will not be applied to “employees who permanently occupy
the Criminal Investigator positions outlined in Subsection 5.2 . . . as of the effective
date of this Directive[,] . . . Criminal Investigators who experience a change in position
(e.g., via reassignment, promotion, etc.) on or after the effective date of this Directive
will become subject to the policies and procedures contained in this Directive”
(emphasis added).) Moreover, given Mount’s concession that his experience failed to

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meet the Directive’s qualifications criteria (see supra note 3), his contention that
reasonable jury could glean pretext from the fact that SAC Arnold “knew” that he “was
qualified for the ASAC position according to the Criminal Investigator Hiring and
Career Pro[gr]ession Directive” but failed to choose him (Pl.’s Opp’n at 10) is
unsupported and unpersuasive.
Mount also attempts to cast doubt upon DHS’s non-retaliatory reason for hiring
Truong by arguing that he was actually the superior candidate (see id. at 9–10 (asserting
that he had “superior qualifications” over Truong), but this contention, too, is bald and
unconvincing. While it is true that a jury could infer retaliation from evidence showing
that “a reasonable employer would have found the plaintiff significantly better qualified
for the job[,]” it is well established that the disparity between qualifications must be
“great enough to be inherently indicative of discrimination[.]” Holcomb, 433 F.3d at
897. Mount has fallen well below that bar here. Simply stated, the record evidence
does not indicate the kind of stark superiority of credentials that necessitates denial of
summary judgment. See, e.g., Horvath v. Thompson, 329 F. Supp. 2d 1, 7 (D.D.C.
2004); see also Keeley v. Small, 391 F. Supp. 2d 30, 50 (D.D.C. 2005) (“In order for
disparities in qualifications to be evidence of pretext that would lead this Court to
second-guess defendant’s hiring decision, they must be so apparent as to virtually jump
off the page and slap us in the face.” (internal quotation marks and citation omitted)).
Mount’s sole evidence is his own statement that he possessed certain experiences that
Truong lacked, such as experience supervising GS-14s and GS-15s at ICE headquarters,
drafting policies, managing budgets and personnel, and hearing disciplinary cases
within the agency. (See Pl.’s Opp’n at 9–10.) But even if this is all true, Mount fails to

17

offer any evidence that would permit the inference that having these few additional
experiences rendered Mount a far superior candidate, and this is an especially damning
omission given that Mount concededly lacked some of the other required qualifications
that Truong indisputably possessed. (See supra note 3.)
Furthermore, the D.C. Circuit has long maintained that, “[i]n a close case, a
reasonable juror would usually assume that the employer is more capable of assessing
the significance of small differences in the qualifications of the candidates, or that the
employer simply made a judgment call.” Aka, 156 F.3d at 1294. Thus, where the
evidence shows only “slight questions of comparative qualifications,” it cannot be said
to be sufficient to establish a genuine issue of fact regarding the starkly superior
credentials that are necessary to survive a summary judgment challenge. Walker v.
Dalton, 94 F. Supp. 2d 8, 16 (D.D.C. 2000).
B.

The Record Does Not Support An Inference That Mount Was Denied
The Position In Retaliation For His Protected Activity

It is also clear to this Court that Mount has failed to show that a reasonable jury
could conclude, based on the evidence presented, that Mount was passed over for the
Los Angeles ASAC position in retaliation for his prior protected activity. To survive
summary judgment, Mount would have to point to sufficient evidence in the record to
create a genuine issue regarding the real motive behind his non-selection. See Johnson,
798 F.3d at 1093 (the evidence “must be such that a reasonable jury could . . . conclude
that the real reason the employer took a challenged action was a prohibited one[]”).
And although “[d]irect evidence of reprisal—such as a statement by a managerial
employee that she or he took action because an employee had filed a charge of
discrimination—is the exception rather than the rule[,]” Allen v. Johnson, 795 F.3d 34,

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39 (D.C. Cir. 2015), the circumstantial case that a retaliation plaintiff might opt to rely
on must be strong enough to give rise to an inference of retaliatory motive. Typical
means of providing sufficient circumstantial evidence from which a retaliatory motive
could be inferred “include pointing to 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 minority employees (or, in the
retaliation context, employees who asserted their Title VII rights) was worse than its
treatment of non-minorities (or employees who did not assert their Title VII rights)[,]”
or that the employer committed “an error too obvious to be unintentional.” Id.
(internal quotation marks and citation omitted). It is also the case that plaintiffs
commonly attempt to show retaliatory motive by emphasizing the close temporal
proximity between the adverse action and the protected activity. See id. at 40.
Here, Mount’s only assertion regarding the evidence from which a jury
purportedly could infer causation is the “short time frame between the protected activity
and the non-selection[.]” (Pl.’s Opp’n at 11.) But it is by now well established that
mere proximity in time—standing alone—is not sufficient to rebut an employer’s
legitimate proffered reason and/or to give rise to a reasonable inference that the actual
motive for the challenged employment decision is an improper one. See Woodruff, 482
F.3d at 530 (“[P]ositive evidence beyond mere proximity is required to defeat the
presumption that the proffered explanations are genuine.” (emphasis added)); see also
Ward v. District of Columbia, 950 F. Supp. 2d 9, 21 n.16 (D.D.C. 2013) (citing

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Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011)) (“The Court notes that temporal
proximity alone would be insufficient to demonstrate a retaliatory motive at the
summary judgment stage.”). Thus, when faced with DHS’s clear contention that it
selected Truong because it believed that he was the best candidate all things considered,
Mount needed to do more than establish temporal proximity to support his contention
that the non-selection was caused by retaliation; and having not fulfilled this obligation,
Mount cannot proceed to the jury with respect to his retaliation claim.
IV.

CONCLUSION
DHS is entitled to judgment as a matter of law because the agency has articulated

a legitimate (and well-supported) non-retaliatory reason for the challenged nonselection, and because Mount has failed to present any evidence, direct or
circumstantial, that could possibly lead a reasonable jury to conclude that DHS’s
proffered reason should be disbelieved, and that the true motive behind Mount’s nonselection was retaliation for engaging in a protected activity. See Reeves, 530 U.S. at
148. Therefore, as set forth in the accompanying order, Defendant’s motion for
summary judgment will be GRANTED, and judgment will be entered in favor of
Defendant on Mount’s claim that his non-selection for the Los Angeles ASAC position
was retaliation for his prior protected activity (i.e., the only claim that presently exists
in the complaint).

DATE: March 31, 2016

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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