CRAIG v. LEW
MEMORANDUM OPINION granting in part and denying in part 33 Defendant's Motion for Summary Judgment: See document for details. Signed by Judge Rudolph Contreras on 9/29/2017. (lcrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEVEN MNUCHIN, Secretary,
United States Department of the Treasury,1
Civil Action No.:
Re Document No.:
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff B.B. Craig, an official at the United States Mint (the “Mint”), brings this suit
against Steven Mnuchin, in his official capacity as Secretary of the United States Department of
Treasury, alleging violations of Title VII of the Civil Rights act of 1964 (“Title VII”). Now
before the Court is the Secretary’s Motion for Summary Judgment. See generally Def.’s Mot.
Summ. J. (“Def.’s Mot.”), ECF No. 33. For the reasons stated below, the Court will grant in part
and deny in Defendant’s motion.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Steven Mnuchin, the
current Secretary of the United States Department of the Treasury, is automatically substituted as
the defendant in this matter.
The Mint, which is a bureau of the United States Department of Treasury (“Treasury”), is
responsible for not only manufacturing and distributing coins used by the public in commerce,
but also for manufacturing, marketing and selling collectible (“numismatic”) coins and
investment grade bullion. See Pl.’s Resp. SMF ¶ 1. Within the Mint, marketing and selling of
such products is the responsibility of the Sales and Marketing Division (“SAM Division”), which
is overseen by the Mint’s Associate Director for Sales and Marketing (“A/D SAM”). See Pl.’s
Resp. SMF ¶¶ 7, 13–14.
On November 17, 2008, the Mint hired B.B. Craig, an African-American man, to be its
A/D SAM. See Pl.’s Resp. SMF ¶ 13. In that role, Mr. Craig reported directly to the Deputy
Director of the Mint and was charged with leading an organization responsible for generating
sales of approximately $500 million annually. See Dep. B.B. Craig (“Craig Dep.”) at 25:12–
26:5, 32:24–33:9, ECF No. 51-3. Mr. Craig had “authority to speak and act on behalf of the
Mint in public meetings and private conferences with senior officials of the  Treasury, top-level
Mint management, and representatives of other agencies of the federal government and
international governments.” Decl. B.B. Craig (“Craig Decl.”) ¶ 3, ECF No. 40-2. Mr. Craig also
had significant supervisory authority, with approximately ninety-four full-time equivalent
employees allotted to the SAM Division. See Craig Decl. ¶ 4.
Upon assuming the A/D SAM position, Mr. Craig also became a member of the Senior
Executive Service (“SES”), the Federal government’s executive management core. Pl.’s Resp.
SMF ¶¶ 6–7, 13. Members of the SES are “charged with executive management of key
Unless otherwise noted, this section recounts only facts that the parties do not dispute or
facts substantiated by the record. See generally Pl.’s Resp. Def.’s Statement Material Facts
(“Pl.’s Resp. SMF”) at 1–44, ECF No. 40-1 (admitting that certain facts are undisputed).
governmental programs, divisions, offices, and functions within Federal executive branch
agencies, such as the Mint.” Pl.’s Resp. SMF ¶ 8. However, they are governed differently than
other federal employees and can, at the discretion of the agency, be reassigned to any SES
position within an agency for which they are qualified or be “detailed” to a position with
unclassified duties within the agency or to another agency for up to 240 days. See Pl.’s Resp.
SMF ¶¶ 10–12; Pl.’s Opp’n, Ex. 16 at 9, 11–12, ECF No 41-14.
This case primarily concerns Mr. Craig’s removal from his position as A/D SAM, his
placement into other inferior roles at the Mint, and Defendant’s refusal to reassign him to a
position that was commensurate with the A/D SAM position. Of central importance to all of
these claims is Mr. Craig’s performance on two critical projects during the 2012 fiscal year
rating period (“FY 2012”)—the Order Management System Project and the Comprehensive
Numismatic Marketing Plan and Advertising Spend Request. The Secretary claims that Mr.
Craig’s inadequate performance on these two projects set into motion a series of employment
actions that Mr. Craig is now alleging were discriminatory and retaliatory. Indeed, Defendant
argues that Mr. Craig’s performance justified Mr. Craig’s FY 2012 performance evaluation, his
removal from the A/D SAM position, and prompted Defendant to find another position at the
Mint that was a “better fit” for Mr. Craig. Ultimately, the “better fit” that Defendant identified
was a detail to a position called “Executive Lead,” which, unlike Mr. Craig’s previous position,
had unclassified duties and no supervisory authority. Although Mr. Craig remained in the
Executive Lead position beyond the 240-day limit, he was eventually reassigned to a permanent
SES position as Associate Director of Environment, Safety, and Health (“A/D ES&H”), which
Mr. Craig argues is only marginally better than the “Executive Lead” position and was far from
commensurate with his former A/D SAM position.
A. The OMS Project
One of the projects that Mr. Craig worked on during the FY 2012 rating period was the
Order Management System Project (“OMS Project” or “the Project”). See Pl.’s Resp. SMF
¶ 22–23. This Project was undertaken by the SAM Division and the Mint’s Information
Technology Division (“IT”). See Pl.’s Resp. SMF ¶ 22; Pl.’s Statement Genuine Issues ¶ 16,
ECF No. 40-1. The Mint’s goal was to overhaul, upgrade, and revise the Mint’s existing online
ordering system that the public used to purchase Mint products. See Pl.’s Resp. SMF ¶ 22.
Between SAM and IT, SAM was responsible for specifying its needs and how the system should
function, while IT was responsible for delivering the system. See Dep. Beverly Babers (“Babers
Dep.”) at 120:5–121:13, ECF No. 51-1 (SAM is responsible for identifying “what we need and
this is how we need it to work and this is why it important to our customers,” while IT is
responsible for presenting “here is how you do it and here are your options for doing it.”); Craig
Dep. at 84:1–5 (“So the way it was designed, IT was the lead of the [P]roject. I was the
customer, but I had say-so and I was supposed to give up resources to make the [P]roject an
accomplishment.”). However, this was to be a highly collaborative process between the two
departments. See Babers Dep. at 121:13–15 (“So it’s got to be really, really collaborative. And
they are both [SAM and IT] both very critical to the situation.”). Overseeing the Project was an
Executive Steering Committee (“ESC”), which was to provide support, guidance, and resources
to ensure that the OMS Project was a success. See Dep. Richard Peterson (“Peterson Dep.”) at
76:10–20, ECF No. 50-2. Both Mr. Craig and the Mint’s Chief Information Officer (“CIO”)
served on this committee. See Peterson Dep. at 75:14–17; accord Pl.’s Resp. SMF ¶ 51.
The Project was initiated at the beginning of FY 2012, but by Spring of 2012, problems
had emerged. Richard Peterson, the Deputy Director of the Mint, recalled that by early April, he
felt that the “[P]roject was not on track” and knew “the [P]roject was late and behind budget.”
Peterson Dep. at 79:17–20. Thus, in May 2012, Mr. Peterson made the decision to temporarily
halt the OMS Project and retain the Mitre Corporation (“Mitre”) to conduct an analysis of the
OMS Project’s continued viability. See Pl.’s Resp. SMF ¶ 31.
Around this same time, Mr. Peterson hired Beverly Babers. Earlier that year Mr.
Peterson had decided to seek additional executive management resources for the Mint. See Pl.’s
Resp. SMF ¶ 32. Thus, in April and May of 2012, Mr. Peterson interviewed and ultimately hired
Ms. Babers to be the Mint’s Chief Administrative Officer. See Pl.’s Resp. SMF ¶ 33. Before she
began working at the Mint, however, Mr. Peterson asked Ms. Babers to attend a meeting with
Mitre and other Mint executives to discuss the OMS Project. See Pl.’s Resp. SMF ¶ 34. At that
meeting, Mitre described its findings and recommended that the OMS Project be temporarily
suspended. See Pl.’s Resp. SMF ¶ 35; Babers Dep. at 106:1–11. Ms. Babers testified that her
understanding of Mitre’s findings from that meeting was that “there was lack of . . . governance
and oversight that contributed to the failure of the [P]roject and, specifically, [that] the IT and
Sales and Marketing Departments had failed to effectively collaborate.” Babers Dep. at 107:14–
Indeed, Mitre found systemic and programmatic deficiencies in the OMS Project, one of
which was “governance.” See Pl.’s Resp. SMF ¶ 36. One problem that Mitre identified was the
Project’s “shifting program accountability and decision making.” Def.’s Mot., Ex. 15 at Bates
No. 002548, ECF No. 35-3. According to Mitre, while the documented governance processes
indicated that the CIO was “responsible and accountable for program delivery,” it observed that
the ESC “[did] not operate in accordance with its documented roles and responsibilities and
[was] acting in a de facto decision-making capacity.” Def.’s Mot., Ex. 16 at 7, ECF No. 35-4.
So while, “program accountability [resided] with the [CIO],  decision-making [was] diffused
via the ESC.” Def.’s Mot., Ex. 16 at 7. In addition, Mitre identified “weak communications,”
“conflicting assumptions about program scope and intent,” and “internal discord.” Pl.’s Resp.
SMF ¶¶ 36, 38; see also Def.’s Mot., Ex. 15 at Bates No. 002548. It concluded that this
“infighting [was] endangering pursuit of [the Mint’s] goal.” Pl.’s Resp. SMF ¶¶ 36, 38; see also
Def.’s Mot, Ex. 15 at Bates No. 002548. Thus, Mitre recommended that the Mint make
improvements to its “program governance and management structures, methods, and
disciplines,” Pl.’s Resp. SMF ¶ 37, but also that it “slow down” the Project until “certain
systemic improvements in governance and management of the [P]roject were incorporated.”
Pl.’s Resp. SMF ¶ 39.
Mr. Craig does not dispute that Mitre made such findings or that they were discussed
during the meeting with Ms. Babers. However, according to Mr. Craig, the failure of the Project
had nothing to do with him or the SAM Division, but was, instead, attributable to the CIO who
was responsible for both the budget and the timeline for the OMS Project. See Craig Dep. at
84:13–15. He also claims that it was the CIO that was hostile towards other members of the
OMS Project team and who refused to share information about the budget, status, or progress of
the Project with Mr. Craig. See Craig Dep. at 50:2–52:7. And even though Mr. Craig brought
these issues to Mr. Peterson’s attention, he claims that Mr. Peterson did nothing to address them.
See Craig Dep. at 153:14–154:18.
Ms. Babers officially reported for duty at the Mint in July 2012. See Pl.’s Resp. SMF
¶ 44. Once she arrived, Mr. Peterson shifted the reporting lines of Mr. Craig and other
executives as part of an organizational realignment. See Pl.’s Resp. SMF ¶ 45. From that point
forward, Mr. Craig and others, including the CIO, were to report directly to Ms. Babers who, in
turn, reported to Mr. Peterson. See Pl.’s Resp. SMF ¶ 45; Def.’s Mot., Ex. 2, ECF No. 34-2.
After joining, Ms. Babers took several steps to improve the project governance of the OMS
Project. See Pl.’s Resp. SMF ¶¶ 48–51. For example, an Executive Lead was assigned to the
Project and an official from the Treasury’s Office of the Chief Information Officer was added to
assist on technical aspects of the Project. See Pl.’s Resp. SMF ¶¶ 48–49. The Project was
ultimately reconstituted as “OMS II” and, later, both Mr. Craig and the CIO were removed from
the ESC. See Pl.’s Resp. SMF ¶¶ 50–51.
B. The Marketing Plan
In addition to the OMS Project, Mr. Craig was responsible for developing the “missioncritical” Comprehensive Numismatic Marketing Plan and Advertising Spend Request
(“Marketing Plan” or “the Plan”). Pl.’s Resp. SMF ¶ 52. At that time, the Mint was looking for
ways to halt or reverse the years-long decline in the numismatic customer base and revenue for
numismatic product sales. See Pl.’s Resp. SMF ¶ 53. To do this, it wanted to engage in
advertising, but it first needed approval from Treasury to obtain the funds. See Dep. Sherry
Suggs (“Suggs Dep.”) at 54:7–55:5, ECF No. 51-8. Thus, Mr. Craig and his team were
responsible for developing a marketing plan to support their request for funds. See Suggs Dep. at
54:7–55:5. This Marketing Plan would explain how the funds were to be spent, the kinds of
marketing and advertising the Mint wanted to pursue, what those efforts were expected to
produce in terms of revenue and customers, and would include supporting evidence for the
various recommendations. See id. Although Mr. Craig was responsible for the Plan, Ms. Babers
felt that he left much of the oversight for the Plan to his Deputy. See Def.’s Mot., Ex. 14 at Bates
No. 00178 (Mr. Craig “left primary oversight of the plan to his deputy”), ECF No. 34-12; see
also Babers Dep. at 174:16–21 (“it was my understanding from [Mr. Craig] that [his deputy] had
the more technical [marketing] experience and in fact that she was the one who was within Sales
and Marketing leading this . . . marketing plan effort.”).
Work on the Marketing Plan first began in FY 2011 and continued through FY 2012.
During that time, the Plan received both praise and criticism. For example, in June 2012, the
Mint’s Chief Counsel reviewed a draft of the Marketing Plan and said it was “the best piece of
work in terms of a marketing plan that [he] [had] seen in some time” and told Mr. Craig “Nice
Job!” Pl.’s Opp’n, Ex. 19, ECF No. 41-16. Others, however, noted issues. For example, the
Mint’s Director of Public Affairs wrote Mr. Peterson and Ms. Babers a lengthy email in July
2012 in which he raised several substantive questions concerning the Plan and stated his belief
that the Plan outlined or identified many problems, but failed to provide many good solutions or
recommendations. Pl.’s Resp. SMF ¶ 58; Def.’s Mot., Ex. 22, ECF No. 34-17.
On August 23, 2012, there was a meeting among various Treasury and Mint officials to
discuss the Marketing Plan. See Def.’s Mot., Ex. 23, ECF No. 34-18. Following that meeting,
Treasury’s Assistant Secretary for Management sent an email to Mr. Craig and others, including
the Treasurer of the United States, Mr. Peterson, and Ms. Babers, in which she raised questions
about the Plan’s recommended new customer base, the Plan’s ability to capture new customers,
the requested spend amount, and the Plan’s return on investment calculation. See Pl.’s Resp.
SMF ¶ 58; Def.’s Mot., Ex. 23 Indeed, she noted that some of the Plan’s arguments were not
sufficiently “convincing” or “compelling” Def.’s Mot., Ex. 23.
At this same time, however, there was a draft action memorandum that was going
through the Mint clearance review process. See Def.’s Mot., Ex. 24, ECF No. 34-19; Pl.’s Resp.
SMF ¶ 59. The memorandum was a draft of the formal funding request from the Mint to the
Treasury and summarized the Marketing Plan. See Def.’s Mot., Ex. 24. According to Mr. Craig,
Ms. Babers put this memorandum together using excerpts of the SAM Division’s Marketing
Plan. See Craig Decl. ¶ 24. Although the Mint’s Executive Secretary and its Chief Counsel each
approved the memorandum on August 22 and 23 respectively, Ms. Babers and Mr. Peterson did
not sign off on it. See Def.’s Mot., Ex. 24. Thus, the memorandum was never presented to
Treasury. See Pl.’s Resp. SMF ¶ 59.
At her deposition, Ms. Babers recalled that, at some point in August or September, Mr.
Craig, Ms. Babers, and Mr. Peterson had a meeting with the Treasurer where they attempted to
“instill confidence” that they “had a plan of action that was credible and baked for moving
forward with marketing and advertising” in the event Treasury approved their spend request.
Babers Dep. at 164:2–165:1. According to Ms. Babers, that meeting “went poorly” and it
became clear from the Treasurer that the Marketing Plan was not “going well.” Babers Dep. at
Ultimately, neither the Treasurer nor the Treasury Deputy Secretary ever approved a
Marketing Plan in FY 2012, see Pl.’s Resp. SMF ¶ 60, and Ms. Babers came to believe that Mr.
Craig had been unsuccessful in his efforts to deliver an acceptable Marketing Plan, see Def.’s
Mot., Ex. 10 at Bates No. 00204, ECF No. 34-10; Def.’s Mot., Ex 14 at Bates No. 00178.
C. FY 2012 Performance Appraisal
The performance objectives, deliverables, and standards that SES members are expected
to meet over the course of a particular rating year are memorialized in a document called an
Executive Performance Agreement (“EPA”), which is issued to each SES member annually. See
Pl.’s Resp. SMF ¶ 23. Mr. Craig’s FY 2012 EPA listed the OMS Project as a critical
performance deliverable and therefore it became “Commitment Element 4” of Mr. Craig’s
evaluations. See Pl.’s Resp. SMF ¶ 23.
Over the course of the 2012 fiscal year, Mr. Craig received both a mid-year review from
Mr. Peterson and an end-of-year review from Ms. Babers. The available rating options for a
Treasury SES member, such as Mr. Craig, in ascending order, are: Unsatisfactory, Minimally
Successful, Fully Successful, Exceeded, and Outstanding. See Pl.’s Resp. SMF ¶ 72; Pl.’s
Opp’n, Ex. 11, ECF No. 41-11. Mr. Peterson conducted a mid-year review of Mr. Craig in June
2012. Pl.’s Resp. SMF ¶ 43; Pl.’s Opp’n, Ex. 10, ECF No. 41-10. He rated Mr. Craig as “Fully
Successful” on “Commitment Element 4,” which related to Mr. Craig’s work on the OMS
Project, and “Exceeded” in all other categories. See Pl.’s Resp. SMF ¶ 43; Pl.’s Opp’n, Ex. 10.
This resulted in an overall rating for Mr. Craig of “Exceeded.” See Pl.’s Opp’n, Ex. 10.
On November 8, 2012, Ms. Babers met with Mr. Craig to issue his FY2012 performance
rating. Pl.’s Resp. See SMF ¶ 71. Like Mr. Peterson, Ms. Babers gave Mr. Craig a “fully
successful” rating on the OMS Project, but unlike Mr. Peterson, she also evaluated Mr. Craig as
“fully successful” in the areas of “Program Management” and “Customer Service &
Collaboration.” See Pl.’s Resp. SMF ¶ 73; Pl.’s Opp’n, Ex. 11. In all other areas Ms. Babers
rated Mr. Craig as “Exceeded.” See Pl.’s Opp’n, Ex. 11. Once combined, these grades resulted
in Mr. Craig’s overall rating of “Fully Successful.” See Pl.’s Opp’n, Ex. 11. In the narrative
assessment of Mr. Craig’s performance, Ms. Babers specifically cited the unsuccessful OMS
Project and Marketing Plan as bases for the rating. See Pl.’s Resp. SMF ¶ 74 When Plaintiff
sought a higher-level review of his rating from an official outside of Ms. Babers’s chain of
command, that official sustained Ms. Babers’s rating, noting that she “did not find any
documentation to change the ratings for Program Management, Customer Service and
Collaboration, or Commitment Element 4.” Def.’s Mot., Ex. 27, ECF No. 34-22; see also Pl.’s
Resp. SMF ¶ 75.
Mr. Craig argues that Ms. Babers’s failure to rate him at the “Exceeded” level resulted in
him not receiving an SES performance bonus for FY 2012. See Pl.’s Opp’n at 15–16. Although
Mr. Craig had previously received SES performance bonuses every other year for which he had
been at the Mint,3 see Pl.’s Opp’n, Exs. 2–3, ECF Nos. 41-4 & 41-5, Ms. Babers did not
recommend, and Mr. Craig did not receive, an SES performance bonus for the FY2012 rating
period. See Pl.’s Resp. SMF ¶ 80. According to Office of Personnel Management and Treasurywide guidance, SES members are not guaranteed a bonus regardless of their performance level.
See Pl.’s Resp. SMF ¶ 81. Furthermore, Treasury-wide guidance advises agencies to make
“meaningful distinctions” among SES members’ performance and notes that “[a]ll bonuses are
discretionary, they are not required or guaranteed, regardless of rating level.” Pl.’s Resp. SMF ¶
D. Removal from A/D SAM, Detail to Executive Lead, and Reassignment to A/D ES&H
On September 25, 2012, a few days before the end of the FY 2012 rating year and shortly
after the last Marketing Plan briefing with the Treasurer, Ms. Babers and Mr. Craig had a
meeting. See Pl.’s Resp. SMF ¶¶ 62–63; Babers Dep. at 164:2–165:1. At that meeting, Ms.
Babers addressed concerns relating to the Marketing Plan and raised criticism of Mr. Craig’s
performance as A/D SAM. See Babers Dep. at 164:2–165:1; Craig Decl. ¶ 9. Ms. Babers
observed that the Marketing Plan was not “going well” and told Mr. Craig she believed
marketing did not appear to be his strong suit. See Babers Dep. at 165:7–18. Mr. Craig
explained that, in fact, he was “a manufacturing guy” and the two had a discussion regarding his
experience in that area. See Babers Dep. at 166:18–19; 169:4–11; 173:13. Thus, the two began
discussing the possibility of finding another position at the Mint that would be a “better fit” for
Mr. Craig’s previous performance bonuses ranged from approximately $8,500 to
$12,800. See Pl.’s Resp. SMF ¶ 84.
Mr. Craig.4 See Pl.’s Resp. SMF ¶ 66; Babers Dep. at 166:22–67:2, 172:10–73:1; Craig Decl.
Ms. Babers and Mr. Craig had further discussions between September and December
2012. See Def.’s Mot., Ex. 14 at Bates No. 00181; Babers Dep. at 198:2–202:1. According to
Ms. Babers, she and Mr. Craig worked together, seeking to identify an alternative role based on
Mr. Craig’s stated interests and strengths. See Def.’s Mot., Ex. 14 at Bates No. 00181. Those
discussions eventually came to center on the concept that would later be described as the
“Executive Lead” role. See Def.’s Mot., Ex. 14 at Bates No. 00187; Babers Dep. at 198:2–202:1.
That position would entail “long-range process planning,” the goal of which was to identify ways
of the Mint could be more efficient in manufacturing and bringing its numismatic products to
market. See Pl.’s Resp. SMF ¶¶ 100–01; Def.’s Mot., Ex. 14 at Bates No. 00181 Babers Dep. at
198:2–202:1. But, according to Mr. Craig, during the few conversations between the two, they
did not discuss “specifics about what [he] would be doing in the Executive Lead position” nor
did Ms. Babers ever tell him how much staff he would have, where his position would fall within
the organization, or what budget he would be working with. Craig Decl. ¶ 15.
On October 26, 2012, before being detailed to the Executive Lead position, Mr. Craig
filed an informal EEO complaint. See EEO Counseling – Intake Information (“EEO Compl.”) at
Bates No. 00098, ECF No. 12-18; Pl.’s Resp. SMF ¶ 86. In it, he made various allegations of
reprisal and discrimination based on his race and sex. See generally EEO Compl. He also
Ms. Babers did not explicitly state that she intended to reassign Mr. Craig from his
position at this meeting, though she did believe that her intention was clear from the
conversation. See Babers Dep. at 172:7–173:1. Mr. Craig apparently understood this because, in
his October 26, 2012 EEO complaint, he wrote that, at the September meeting, Ms. Babers
wanted “to discuss what [Mr. Craig] wanted to do in the future, as it was ‘time for them to find a
better fit for him’ than his current position” and that she wanted to “transition [him] out of
SAM.” EEO Counseling – Intake Information at Bates No. 00109, ECF No. 12-18.
described the September 25 meeting with Ms. Babers and stated that Ms. Babers had informed
him that they “needed to discuss what he wanted to do in the future, as it was ‘time for them to
find a better fit for him’ than his current position.” EEO Compl. at Bates No. 00109. It also
states that she “suggested that she would find a position within the Mint that would last about
one year, and which would allow him to transition out of SAM and work on ‘operational
issues.’” EEO Compl. at Bates No. 00109. Mr. Craig claims that he “did not know what would
come of the September 25, 2012 meeting,” but that he initiated the EEO process “as a
precautionary measure to ensure that the Mint could not come back later and claim that [he] had
missed a filing deadline.” Craig Decl. ¶ 10. Ms. Babers learned of Mr. Craig’s EEO activity on
December 5, 2012 and expressed to Mr. Craig that she understood Mr. Craig had filed an EEO
complaint and indicated that she was amenable to mediation. See Pl.’s Resp. SMF ¶¶ 87–88.
Six days later, on December 11, 2012, Mr. Peterson issued a Mint-wide email
announcing several leadership changes at the Mint. Pl.’s Resp. SMF ¶¶ 90–91. First, it
announced that Mr. Craig would leave his role as A/D SAM and would become the “Executive
Lead” for the Comprehensive Production Schedule and Plan Project. See Pl.’s Resp. SMF ¶ 90;
Def.’s Mot., Ex 31, ECF No. 34-25. The email also announced that Jon Marc Landry, a white
SES member with no prior EEO activity, would discontinue his role as Acting Associate
Director of Manufacturing (“Acting A/D Manufacturing”) and would take over, on an acting
basis, the A/D SAM position that Mr. Craig was vacating. See Pl.’s Resp. SMF ¶¶ 20, 92, 94;
Def.’s Mot., Ex 31. Dave Croft, another white SES member with no prior EEO activity who had
been overseeing the Denver manufacturing facility, would assume Mr. Landry’s former position
as Acting A/D of Manufacturing. Pl.’s Resp. SMF ¶¶ 21, 94. Although the Mint’s Human
Resources (“HR”) department would ordinarily have been consulted about an SES member’s
detail, neither the head of HR nor the HR representative responsible for SES executives at the
Mint learned about Mr. Craig’s detail until the December 11, 2012 announcement was made.
See Dep. Lisa Nicholson (“Nicholson Dep.”) at 63:12–70:4, ECF No. 51-6; Dep. Anita Fogan
(“Fogan Dep.”) at 30:22–32:6, ECF No. 51-5.
Mr. Craig’s detail to the Executive Lead position began effective January 3, 2013. Pl.’s
Resp. SMF ¶ 91. This position had no occupational code, classified grade level, or position
description and was therefore subject to the 240-day detail restriction for SES executives. See
Nicholson Dep. at 60:1–62:9, 68:13–70:4, 80:4–83:21, 94:18–95:4. In that role, unlike his
former A/D SAM position, Mr. Craig had no staff or administrative support and he spent a
significant amount of time entering data and performing tasks that would typically be performed
by a GS-5 or GS-7 employee. Craig Decl. ¶ 14. This position did not exist either before or after
Mr. Craig occupied the role and the projects that he worked on were not transferred to anyone or
any department after he left. Craig Decl. ¶ 14. However, Mr. Craig’s detail in the role was
extended several times through the 2013 fiscal year and into the beginning of the 2014 fiscal
year, which caused Mr. Craig’s detail to extend beyond the 240-day limit. See Pl.’s Resp. SMF
¶ 103; Nicholson Dep. at 95:5–7.
In February 2014, a serious, near-fatal accident occurred at the Mint’s Denver
manufacturing plant, where one employee was injured while operating a fork-lift. Pl.’s Resp.
SMF ¶ 111. Thereafter, Mr. Peterson and Ms. Babers decided to appoint Mr. Craig to oversee
the administrative investigation of the accident, conduct an analysis and review of the
circumstances and cause, and generate a final report with recommendations for Mint-wide safety
improvements. Pl.’s Resp. SMF ¶ 112. Mr. Craig performed this work for several months and
ultimately generated a report recommending changes in safety protocols, which was well-
received by Mint leadership. Pl.’s Resp. SMF ¶¶ 113–14. As a result of the incident and Mr.
Craig’s work, Mr. Peterson and Ms. Babers decided to create an SES-level position to oversee
safety throughout the Mint. Pl.’s Resp. SMF ¶ 114.
On July 31, 2014, it was announced that Mr. Craig would assume a position entitled
Associate Director of Environment, Safety, and Health (“A/D ES&H”). See Def.’s Ex. 41, ECF
No. 34-35. Before Mr. Craig took on this role, that same work was being performed by a GS-14
employee who had the same resources and reporting structure that Mr. Craig now has. Craig
Dep. at 183:1–24. Indeed, Mr. Craig himself reports to another Associate Director at the Mint
and is the only Associate Director to do so. Craig Dep. at 227:6–8. He is also not invited to any
of the high-level meetings that he used to attend when he was A/D SAM. Craig Dep. at 229:1–
21. Furthermore, he is the only Associate Director who does not have a GS-15 in his
organization. Craig Dep. at 227:4–228:23.
Through the EEO process, Mr. Craig requested that he be returned to the A/D SAM
position or to be placed in a comparable position, which included the Associate Director of
Manufacturing (“A/D Manufacturing”). See Pl.’s Opp’n, Ex. 14, ECF No. 41-13. Craig was
never returned to his former position nor was he ever selected for the A/D Manufacturing
E. A/D Manufacturing and Acting A/D SAM Positions
As explained above, on December 11, 2012, the same day that it was announced that Mr.
Craig would become the “Executive Lead,” it was also announced that Mr. Landry, who was
serving as Acting A/D Manufacturing at the time, would leave that position and become the
Acting A/D SAM. Pl.’s Resp. SMF ¶¶ 20, 92, 94. Ms. Babers purportedly selected Mr. Landry
due to his effectiveness running the manufacturing-side of the Mint and his understanding of the
SAM Division and the numismatic business. See Babers Dep. at 217:1–10; Peterson Dep. at
170:9–17. This meant, however, that someone else would need to fill Mr. Landry’s former
position as Acting A/D Manufacturing.
The A/D Manufacturing position was responsible for overseeing all four of the Mint’s
manufacturing facilities in the United States. Def.’s Mot. at 3–4; see also Def. Ex. 2. Mr.
Peterson announced that Mr. Croft, who was in charge of the Denver plant, would take over as
Acting A/D Manufacturing. Pl.’s Resp. SMF ¶¶ 21, 92, 94. The record is unclear, however, as
to how or why Mr. Peterson selected Mr. Croft for that position. Mr. Croft testified that he had
never expressed any interest in the position, but Mr. Peterson had recruited him for it
nonetheless. Dep. David Croft (“Croft Dep.”) at 34:2–9, ECF No. 51-4. And even though it was
inconsistent with agency policy and practice, Mr. Peterson allowed Mr. Croft to remain at his
duty station in Denver throughout the course of his 18-month acting assignment while
performing two-week rotations to the headquarters office in Washington, D.C. Croft Dep. at
34:11–35:18; Nicholson Dep. at 152:21–153:9.
By August 2014, Mr. Peterson began considering assigning someone to the A/D
Manufacturing role on a permanent basis. Pl.’s Resp. SMF ¶ 119. To fill the position, Mr.
Peterson did not undertake any competitive hiring process, but instead considered only two
possible candidates—Mr. Landry and Mr. Croft. See Pl.’s Resp. SMF ¶ 119. Mr. Landry and
Mr. Croft both had extensive experience in manufacturing, both at the Mint and elsewhere. Pl.’s
Resp. SMF ¶ 120. Indeed, Mr. Landry and Mr. Croft had, for several years, managed the Mint’s
Philadelphia and Denver manufacturing facilities, respectively, and each had previously served
as Acting A/D Manufacturing for a period of approximately eighteen months. Pl.’s Resp. SMF
¶ 120. Furthermore, they both had significant manufacturing experience in the automotive
industry prior to joining the Mint. See Peterson Dep. at 189:13–15; Def.’s Mot., Ex. 44, ECF
No. 35-7. Mr. Croft at that time was still serving as the Acting A/D Manufacturing and Mr.
Peterson considered him to be doing an “outstanding job” in that role. Peterson Dep. at 189:19.
Thus, based on his qualifications and performance in the position, Mr. Peterson selected Mr.
Croft for the permanent A/D Manufacturing role. Pl.’s Resp. SMF ¶ 121. Mr. Peterson
announced Mr. Croft’s permanent appointment on August 19, 2014. Pl.’s Resp. SMF ¶ 122.
In making his selection, however, Mr. Peterson admittedly did not consider Mr. Craig.
Pl.’s Resp. SMF ¶ 124. Although Mr. Craig had never occupied a manufacturing position at the
Mint, he did have prior manufacturing experience. See Pl.’s Resp. SMF ¶¶ 125–26. Indeed, in
2008, Mr. Craig applied for the A/D Manufacturing position and was considered to be among the
“best qualified” candidates for the position at that time. Def.’s Mem. P & A. in Supp. Mot.
Partial Dismissal or Partial Summ. J. at 2–3, ECF 10. The resume that Mr. Craig submitted to
the Mint at that time indicated that Mr. Craig had spent more than three years in manufacturing
positions with Dell Computers, including standing up a manufacturing facility in Malaysia and
managing manufacturing operations at a large facility in Tennessee. See Pl.’s Resp. SMF ¶ 126;
Pl.’s Opp’n, Ex. 4, ECF No. 41-6.
In December 2014, a few months after selecting Mr. Croft to be the permanent A/D
Manufacturing, the Mint learned that the Deputy Director of the Philadelphia plant was to retire.
Pl.’s Resp. SMF ¶ 127. Thus, Mr. Peterson determined that Mr. Landry would need to return
full-time to his position as plant manager in Philadelphia and would terminate his role as Acting
A/D SAM. Peterson Dep. at 188:1–4, 199:16–200:5. Mary Lhotsky, who had been serving as
Mr. Landry’s Deputy in the SAM Division and was considered to be a “very solid performer”
was temporarily slotted into the Acting A/D SAM position. Peterson Dep. at 200:10–17.
Meanwhile, in the Spring of 2015, the Mint sought to competitively fill the permanent
A/D SAM position. See Dep. Jon Cameron (“Cameron Dep.”) at 44:5–6, 46:16–19, ECF No.
51-2. The Mint received somewhere between thirty and forty-five applications and ultimately
interviewed five candidates. Cameron Dep. at 46:13–16. These interviews were carried out by a
panel that included Ms. Babers and Jon Cameron, who was the Director for the Office of Coin
Studies at the Mint. Cameron Dep. at 44:7–8, 46:13–14. However, after the interview process,
the panel felt that there were no viable candidates for the position. Cameron Dep. at 45:14–15.
According to Mr. Peterson, Ms. Lhotsky felt she had been “overtaxed” in the Acting A/D
SAM position and approached Ms. Babers to ask for help. Peterson Dep at 200:18–21. Ms.
Babers suggested that Mr. Cameron be selected for the position. Peterson Dep. at 200:21–201:8.
Mr. Peterson approached Mr. Cameron and asked if he would consider temporarily stepping in as
Acting A/D SAM, which Mr. Cameron agreed to do. Cameron Dep. at 43:14–22. In May 2015,
the newly appointed Principal Deputy Director of the Mint announced in an email several
personnel moves, including Mr. Cameron’s selection to serve as Acting A/D SAM. See Def.’s
Mot., Ex. 48, ECF No. 34-41; Pl.’s Resp. SMF ¶ 130. It also noted, however, that the Mint
would continue its search for a new A/D SAM. See Def.’s Mot., Ex. 48.
F. Procedural Background
On August 6, 2014, Mr. Craig initiated the present action, asserting five claims under
Title VII of the Civil Rights Act of 1964. See generally Compl., ECF No. 1. Thereafter, the
Defendant filed a pre-discovery motion for partial dismissal, or in the alternative, for partial
summary judgment on two Counts. See Mot. Partial Dismissal or Summ. J., ECF No. 10. In an
Order dated June 19, 2015, the Court granted in part and denied in part Defendant’s motion,
granting summary judgment on one of Mr. Craig’s claims for failure to exhaust his
administrative remedies. See Mem. Op., ECF No. 16.
On September 30, 2015, Mr. Craig filed an amended complaint. See Am. Compl., ECF
No. 22. In his Amended Complaint, Mr. Craig alleges that the Mint discriminated against him
on the basis of his race by giving him a “Fully Successful” rating in his FY 2012 appraisal,
which he claims resulted in him not receiving a performance-based bonus for that year.5 See
Am. Compl. ¶¶ 107–13. He also alleges that Defendant removed him from the A/D SAM
position and detailed him to the Executive Lead position and later reassigned him to the A/D
ES&H position based on racially discriminatory and retaliatory reasons. See Am. Compl. ¶¶ 61–
71, 87–93. In addition, Mr. Craig claims that the Mint retaliated and racially discriminated
against him by refusing to restore him to his former A/D SAM position or to an equivalent
position, such as A/D Manufacturing, despite his requests. Am. Compl. ¶¶ 72–86, 94–106.
Finally, Mr. Craig alleges that the Mint retaliated and racially discriminated against him when it
failed to select him for the A/D Manufacturing position in 2014. See Am. Compl. ¶¶ 114–26.
On September 21, 2016, the Secretary moved for summary judgment on all of Mr. Craig’s
claims. See generally Def.’s Mot.
III. LEGAL STANDARD
A court may grant 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 “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
Although Mr. Craig also initially claimed that the Mint discriminated against him based
on his sex, see Am. Compl. ¶¶ 107–13, Mr. Craig declared in his opposition to Defendant’s
motion that he was “no longer pursuing sex (male) as a basis for his discrimination claim over
his FY 2012 performance appraisal,” Pl.’s Opp’n at 28 n.10.
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the nonmovant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
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, 323–24 (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 nonmovant must point to specific facts in the record that reveal a genuine issue that is suitable for
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).
Title VII of the Civil Rights Act prohibits an employer from discriminating against their
employees on the basis of race, color, religion, sex, or national origin, 42 U.S.C. § 2000e–2(a),
and forbids retaliation against an employee because he “opposed any practice made an unlawful
employment practice by” Title VIII, or because he “made a charge” under Title VII, id. § 2000e–
3(a). To establish employment discrimination, a plaintiff must demonstrate that the plaintiff
suffered an adverse employment action because of the employee’s race, color, religion, sex, or
national origin. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). On the other
hand, to prove unlawful retaliation, a plaintiff must establish that he made a charge or opposed a
practice made unlawful by Title VII, that the employer took a materially adverse action against
him, and that the employer took the action because of his protected conduct. See Holcomb v.
Powell, 433 F.3d 889, 901–02 (D.C. Cir. 2006) (Title VII). The D.C. Circuit, however, has
explained that, at the motion the summary judgment stage, “the question of whether plaintiff
made out a prima facie case is almost always irrelevant.” Brady v. Office of Sergeant at Arms,
520 F.3d 490, 494 (D.C. Cir. 2008). Indeed, once an employer asserts a legitimate,
nondiscriminatory, non-retaliatory reason for its actions, inquiry into a plaintiff’s prima facie
case typically becomes “an unnecessary and improper ‘sideshow.’” Jones v. Bernanke, 557 F.3d
670, 678 (D.C. Cir. 2009) (quoting Brady, 520 F.3d at 494).
Instead, district courts should consider only whether “‘the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-discriminatory or nonretaliatory reason was not the actual reason and that the employer intentionally discriminated or
retaliated against the employee.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (quoting
Brady, 520 F.3d at 493) (brackets omitted). To answer this question, the Court considers
whether a reasonable jury could infer discrimination or retaliation “from ‘all the evidence, which
includes not only the prima facie case but also the evidence the plaintiff offers to attack the
employer’s proffered explanation for its actions and [any] other evidence.’” Morris v. McCarthy,
825 F.3d 658, 668 (D.C. Cir. 2016) (quoting Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir.
2010) (alteration in Morris)). “Whether the available evidence suffices to support a jury finding
of [discrimination or] retaliation will, necessarily, be a contextual judgment.” Allen, 795 F.3d at
40. “Typically, successful rebuttal of an employer’s stated reason counts as evidence of the
invidious motive that is a required element of a disparate treatment or retaliation claim.” Id.
(citing George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005). Furthermore, “though evidence of
pretext is not per se sufficient to permit an inference of discrimination [or retaliation], it usually
will be enough to get a plaintiff’s claim to a jury.” Jones, 557 F.3d at 679 (internal quotations,
citations, ellipses, and brackets omitted); see also Hamilton v. Geithner, 666 F.3d 1344, 1351
(D.C. Cir. 2012) (courts “do not routinely require plaintiffs to submit evidence over and above
rebutting the employer’s stated explanation in order to avoid summary judgment.”) (internal
There are multiple ways in which a plaintiff may support an inference that an employer’s
stated reason for a challenged employment action was not the actual reason, and that the real
reason was prohibited discrimination or retaliation. For example, the D.C. Circuit has held that
“temporal proximity of an adverse action close on the heels of protected activity is a common
and highly probative type of circumstantial evidence of retaliation.” Allen, 795 F.3d at 40 (citing
Hamilton, 666 F.3d at 1357–59). “Other common ways of proving invidious motive—whether
retaliation or discrimination—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).’” Id. (quoting Brady, 520 F.3d at 495 & n.3)
(parentheses in original).
The thrust of Mr. Craig’s claims is that the Mint discriminated and retaliated against him
by giving him a sub-par performance review for FY 2012, removing him from the A/D SAM
position, placing him in other inferior roles at the Mint, and refusing to reassign him to a position
that was commensurate with his former A/D SAM position. Defendant argues that Mr. Craig’s
inadequate performance on the OMS Project and the Marketing Plan formed the basis of Mr.
Craig’s downgraded performance review and precipitated his removal from A/D SAM. The
Court finds that Mr. Craig has not presented evidence sufficient to rebut that legitimate, nondiscriminatory, non-retaliatory reason. Thus, Defendant is entitled to summary judgment on
those issues. Likewise, Defendant asserts that it refused to reinstate Mr. Craig to the A/D SAM
position for the same reason that it removed him, which Mr. Craig also fails to rebut.
Consequently, Defendant is entitled to summary judgment on this issue as well.
However, there remain genuine disputes as to whether the Mint retaliated against Mr.
Craig when it detailed him to the Executive Lead position and failed to select him for the A/D
Manufacturing position in 2014. With respect to the Executive Lead detail, there is a genuine
dispute about whether the Mint retaliated against him for his EEO activity based on the fact that
it placed him in an indisputably inferior role only six days after it learned that he had initiated the
EEO counseling process. Moreover, there were procedural irregularities attendant with his
detail, including failures to consult with HR and the detail extending well beyond the 240-day
limit for an SES executive. When viewed together, a reasonable jury could conclude that his
detail to that position was retaliatory and, thus, summary judgment is not warranted on this
issue.6 On the issue of non-selection for the A/D Manufacturing position, Mr. Craig has raised
genuine issues as to whether the Mint “preselected” Mr. Croft for the acting position in 2012,
which ultimately led to Mr. Croft obtaining the permanent position in 2014, and whether there
was retaliatory intent associated with those selections. He has not, however, demonstrated that
Although Mr. Craig also claims that his detail was the result of racial discrimination, he
has not supported this claim with sufficient evidence to rebut Defendant’s claim that he was
detailed to the position because it represented a “better fit.”
racial animus played any part of any supposed selection decisions in 2012 or 2014. Accordingly,
summary judgment on the issue of his non-selection for the A/D Manufacturing position is
appropriate with respect to the discrimination claim, but not on the retaliation claim.
A. FY 2012 Performance Appraisal
Mr. Craig alleges that the Mint engaged in racial discrimination when it failed to give
him an overall performance rating at the “Exceeded” level for fiscal year 2012, 7 which he claims
would have entitled him to a bonus of at least $8,497. Pl.’s Opp’n at 9–10. Mr. Craig’s
performance review period began in October 2011 and concluded September 30, 2012. See Pl.’s
Opp’n, Ex. 11. In her review of Mr. Craig, Ms. Babers rated Mr. Craig as “Fully Successful,” in
the areas of “Program Management,” “Customer Service & Collaboration,” and “Commitment
Element 4” (relating to the OMS Project) and “Exceeded” in all other areas. See Pl.’s Opp’n, Ex.
11. Once combined, these grades resulted in Mr. Craig’s overall rating of “Fully Successful.”
See Pl.’s Opp’n, Ex. 11. In the narrative assessment of Mr. Craig’s performance, Ms. Babers
specifically cited the unsuccessful OMS Project and Marketing Plan as bases for the rating. See
Pl.’s Resp. SMF ¶ 74. Def.’s Mot. at 35. When Plaintiff sought a higher-level review of his
annual performance rating from an official outside of Ms. Babers’s chain of command, that
official sustained Ms. Babers’s rating, noting that she “did not find any documentation to change
the ratings for Program Management, Customer Service and Collaboration, or Commitment
Element 4.” Def.’s Mot., Ex. 27; see also Pl.’s Resp. SMF ¶ 75.
Defendant’s dissatisfaction with Mr. Craig’s performance establishes a legitimate, nondiscriminatory reason for Mr. Craig’s performance ratings. See Paquin v. Fed. Nat’l. Mortg.
Although Mr. Craig also alleged discrimination on the basis of sex in his Amended
Complaint, he is no longer pursuing that as a basis for his claim. Pl.’s Opp’n at 28 n.10.
Ass’n, 119 F.3d 23, 29 (D.C. Cir. 1997) (holding that an employer proffered a legitimate nondiscriminatory reason for negative performance evaluation by offering an evaluation that
criticized the employee’s work performance and identifying specific examples of the employee’s
inadequate performance); see also Dews–Miller v. Clinton, 707 F. Supp. 2d 28, 52 (D.D.C. 2010)
(noting that the supervisors’ dissatisfaction with employee’s work was a legitimate,
nondiscriminatory reason for employee’s two “minimally successful” performance evaluations).
Accordingly, the Court considers whether, in light of the total circumstances of the case, Mr.
Craig has “produced evidence sufficient for a reasonable jury to find that the employer’s stated
reason was not the actual reason and that the employer intentionally discriminated” against him
on the basis of his race. See Brady, 520 F.3d at 495.
The D.C. Circuit has explained that, in cases such as this, involving “[d]isagreement[s]
between a middle manager and [his] immediate supervisor over the validity of discretionary
judgments,” courts must be “vigilant in smoking out unlawful motives while remaining
‘reluctan[t] to become involved in the micromanagement of everyday employment decisions.’”
Allen v. Johnson, 795 F.3d 34 40–41 (D.C. Cir. 2015) (quoting Forman v. Small, 271 F.3d 285,
291 (D.C. Cir. 2001)) (fourth alteration in original); see also Manuel v. Potter, 685 F. Supp. 2d
46, 63 (D.D.C. 2010) (noting that the court does not sit as a “super-personnel department” that
“independently evaluate[s] the quality of the plaintiff’s work product” (internal quotation marks
and citation omitted)). Accordingly, courts do not concern themselves with whether an
employer’s action was “wise, fair, or correct.” Kelly v. Mills, 677 F. Supp. 2d 206, 228–29
(D.D.C. 2010) (internal quotation marks and citations omitted, alteration in original); see
Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“It
is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or
sensible,” for “the issue is not the correctness or desirability of the reasons offered . . . but
whether the employer honestly believes in the reasons it offers.”) (internal quotation marks and
citations omitted). Instead, courts assessing whether an employer’s purported reasons for its
actions were pretext for discrimination consider only whether a plaintiff has provided any
evidence from which to infer that the employer’s explanation was a lie. See Desmond v.
Mukasey, 530 F.3d 944, 963–64 (D.C. Cir. 2008) (“[I]t will not do for the plaintiff to show that
the employer’s stated reason was false if the employer believed it in good faith; the plaintiff must
establish a basis to conclude that the employer has lied about the reason or, more directly, that
the reason was discriminatory” (citing Brady, 520 F.3d at 495)). Thus, “‘[i]f the employer’s
stated belief about the underlying facts is reasonable in light of the evidence,’ and is honestly
held, there ordinarily is no basis to put the case to a jury, even if the employee disagrees with the
discretionary decision the employer made.” Allen, 795 F.3d at 40–41 (quoting Brady, 520 F.3d
at 495); see also George, 407 F.3d at 415. With those principles in mind, the Court turns to the
Plaintiff’s various arguments concerning his FY 2012 performance evaluation and his
performance on the OMS Project and Marketing Plan.8
Much of Mr. Craig’s argument appears to rest on the fact that Mr. Peterson, Mr. Craig’s
former supervisor, gave Mr. Craig a higher performance rating in his mid-year review than Ms.
Although Defendant argues that Plaintiff’s performance appraisal did not constitute a
materially adverse action because he was not entitled to an “automatic monetary benefit,” Def.’s
Mot. at 31, the Court does not find that argument persuasive. Indeed, it rests on the incorrect
premise that a plaintiff cannot make out a prima facie case of discrimination based on denial of a
bonus if that bonus is discretionary. The D.C. Circuit, however, has stressed that “[t]he denial of
even a purely discretionary bonus can be actionable.” Douglas v. Donovan, 559 F.3d 549, 552
(D.C. Cir. 2009) (citing Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001)). Moreover, the
evidence set forth by Defendant makes it abundantly clear that if Mr. Craig had received an
overall Exceeded rating, he would be much more likely to have received a monetary bonus even
if there are a few isolated incidences to the contrary. See Def.’s Mot., Ex. 29, ECF No. 35-6.
Babers ultimately gave him at his end-of-year review. According to Mr. Craig, although Ms.
Babers claimed that her downgraded performance rating of Mr. Craig was based on the
unsuccessful OMS Project and Marketing Plan, she “had not been at the Mint long enough to
make that assessment, and certainly not long enough to reach a different conclusion from Mr.
Peterson.” Pl.’s Opp’n at 32. But this argument appeals only to whether Ms. Babers’s decision
was “wise, fair, or correct,” for which the Court is not concerned, and it does not speak to the
pertinent question of whether Ms. Babers honestly and reasonably believed her criticisms. Kelly,
677 F. Supp. 2d at 229. Indeed, Mr. Craig does not point to any evidence that Ms. Babers was
required to adhere to Mr. Peterson’s mid-year ratings and courts in this Circuit have routinely
refused to infer discriminatory pretext merely because a subsequent supervisor departs from a
prior supervisor’s appraisal. See, e.g., Robertson v. Dodaro, 767 F. Supp. 2d 185, 193 (D.D.C.
2011) (“[E]vidence of the plaintiff’s higher performance ratings by evaluators other than
[plaintiff’s current supervisors] is insufficient to give rise to an inference of race or gender
discrimination”); Nurriddin v. Goldin, 382 F. Supp. 2d 79, 101 (D.D.C. 2005) (concluding that
evidence of previous positive performance reviews and numerous letters of commendation did
not give rise to an inference of discriminatory intent because that “evidence has nothing to do
with any possible discrimination by defendant”); Hussain v. Principi, 344 F. Supp. 2d 86, 102
n.19 (D.D.C. 2004) (stating that “the fact that a previous manager found that plaintiff had met or
exceeded expectations does not, by itself, establish that a subsequent manager’s evaluation of
employee’s performance was discriminatory” (internal citation omitted)). As explained in
greater detail below, even though Ms. Babers had been at the Mint for only three months at the
time she gave her assessment, she had a factual basis for her beliefs, which Mr. Craig does not
dispute, and Mr. Craig does not present any evidence demonstrating that Ms. Babers’s beliefs
were not honestly or reasonably held. Because Mr. Craig gives no reason why the Court should
question Ms. Babers’s stated criticisms of his performance on the OMS Project or the Marketing
Plan, the Court will grant Defendant’s motion for summary judgment as to Count V.
1. The OMS Project
Ms. Babers faulted Mr. Craig’s performance on the OMS Project because he
demonstrated a lack of leadership and failed to achieve a “constructive resolution” of the Project.
Pl.’s Opp’n, Ex 24. According to Ms. Babers, Mr. Craig, along “with the [CIO], was responsible
for ensuring the successful implementation of a new order management system (OMS). This
[P]roject was established to replace the aging legacy system [through] which customers place
[online] orders for Mint products. It suffered from significant interpersonal conflict between
Sales and Marketing and Information Technology team members, including the respective
leadership. Unfortunately, the [P]roject was ultimately halted at a cost of several million dollars
to the United States Mint.” Def.’s Mot., Ex. 24.
Plaintiff does not dispute that the OMS Project failed, instead, he essentially argues that
Ms. Babers’s assessment of his performance was flawed because the Project’s failures should
have been attributed to the Mint’s CIO—not Mr. Craig. First, Plaintiff argues that Ms. Babers
misconstrued the scope of Mr. Craig’s authority on the OMS Project. See. Pl.’s Opp’n at 32.
Specifically, he challenges Ms. Babers’s claims that SAM was the “owner” of the OMS Project
when, in reality, the CIO had been in control of the budget and the schedule. See Pl.’s Opp’n at
32. Plaintiff also argues that Ms. Babers unfairly attributes some of the “interpersonal conflicts”
between SAM and the IT Department to him or his leadership. See Pl.’s Opp’n at 32. According
to Mr. Craig, he and SAM were the recipients of hostility from the CIO, who was supposedly
known to have a volatile personality and to discriminate against people who were different from
him. Pl.’s Opp’n at 32. Thus, according to Mr. Craig, Ms. Babers was wrong to credit the
failure of the Project to him and the CIO equally, when the failures should have been more
properly attributed to the CIO alone.9
But even if Ms. Babers was factually wrong in her appraisal of Mr. Craig, those flaws do
not create a genuine issue of material fact unless Mr. Craig can demonstrate that Ms. Babers’s
“putative error on [his assessment] was either dishonest or unreasonable.” Allen, 795 F.3d at 42;
see also George, 407 F.3d at 415 (“[A]n employer’s action may be justified by a reasonable
belief in the validity of the reason given even though that reason may turn out to be false.”);
Fischbach, 86 F.3d at 1183 (“Once the employer has articulated a non-discriminatory
explanation for its action, . . . the issue is not ‘the correctness or desirability of [the] reasons
offered . . . [but] whether the employer honestly believes in the reasons it offers.’” (second,
third, and fourth alterations in original) (quoting McCoy v. WGN Continental Broadcasting Co.,
957 F.2d 368, 373 (7th Cir. 1992)). In this case, the arguments that Mr. Craig advances and the
evidence that he has proffered do not suggest either that Ms. Babers did not honestly believe her
criticisms or that her beliefs were unreasonable.
With respect to Ms. Babers’s purported misunderstanding of Mr. Craig’s authority, Mr.
Craig seizes upon Ms. Babers’s description of the SAM Division as an “owner” of the OMS
Project without putting it into the context in which Ms. Babers used the term. According to Ms.
Babers, she understood that SAM was responsible for identifying “what we need and . . . how we
need it to work and . . . why it’s important to our customers,” while IT was responsible for
Mr. Craig also notes that, in their mid-year evaluations, Mr. Peterson rated the CIO
slightly worse on the OMS Project than he did Mr. Craig, which, according to Mr. Craig,
demonstrates that he understood the CIO “bore the majority of the blame for the OMS failings.”
Pl.’s Opp’n at 32. As noted above, there is no evidence that Ms. Babers was required to adhere
to the performance appraisals issued by Mr. Peterson, and the mere fact that she departed from
those appraisals will not give rise to an inference of discriminatory pretext when there is no
evidence that her beliefs were either dishonest or unreasonable.
presenting “how you do it and . . . your options for doing it.” Babers Dep. at 120:5, 121:13.
Thus, according to Ms. Babers, to the extent that the SAM Division has the “knowledge and
vision,  they own the [P]roject in that respect[,] [b]ut they are supported by IT.” Babers Dep. at
121:1–4. As a result, Ms. Babers understood that the Project had to be “really, really
collaborative” because SAM and IT “are both very critical to the situation.” Babers Dep. at
121:13–15. This description is not terribly different from Mr. Craig’s own description in which
he describes IT as “the lead” and SAM as the “customer” when he also admits that he “had sayso and  was supposed to give up resources to make the [P]roject an accomplishment.” Craig
Dep. at 84:1–4. He further agrees that it “was [his] job” to get the “OMS [P]roject up and
running.” Craig Dep. at 84:6–9. Indeed, Mr. Craig does not deny that he served on the OMS
Project’s ESC, see Peterson Dep. at 75:14–17; accord Pl.’s Resp. SMF ¶ 51, or that his
evaluation expressly called for an assessment of his performance in “[i]mplement[ing] [a]
Customer Order Management System in collaboration with IT and Procurement” and his
“Serv[ice] on the Executive Steering Committee providing support guidance and resources to
support the overall success of the Order Management System.” Pl.’s Opp’n, Ex. 11. Thus, it is
undisputed that he had an active role in the Project, that it was a collaborative effort between the
SAM Division and IT, and that Mr. Craig actually had leadership authority on the Project by
virtue of his position on the ESC. Thus, Mr. Craig has not shown that Ms. Babers was either
dishonest or unreasonable in her assessment of Mr. Craig based on any error concerning his
authority over the OMS Project.
Mr. Craig points out, however, that the CIO was in control of the “budget and schedule”
for the Project. Pl.’s Opp’n at 32. But Ms. Babers has never intimated that Mr. Craig was
responsible for those matters nor did she fault him for problems stemming from either the budget
or schedule. Rather, she faulted him for his part in the “significant interpersonal conflict”
between the SAM Division and IT and his failure to provide “more effective leadership” that
“could have made a difference to the outcome” of the Project. Def.’s Mot., Ex. 14 at Bates No.
00179; see also Pl.’s Opp’n, Ex. 11 at Bates No. 00204.
Critically, the record demonstrates that Ms. Babers had a reasonable basis for those
criticisms. Specifically, Ms. Babers’s critique was supported by the reports from Mitre, the
third-party consultant that was hired to assess the continued viability of the Project.10 Indeed,
Ms. Babers testified that she knew, based on Mitre’s briefing, “that there was some failure of
leadership when it came to those two areas [IT and SAM] in leading their teams in a way that
could have led to a more successful outcome.” Babers Dep. at 124:2–6. She also understood
from that briefing that “leadership or governance of the OMS [P]roject was ineffective, and that
. . . ineffectiveness was in the way that Sales and Marketing and IT collaborated or failed to
collaborate, and that was in part due to the leadership of those organizations.” Babers Dep. at
124:16–125:3. This account is also supported by Mitre’s written reports, which observed that
there were governance issues, including “weak communications,” “conflicting assumptions
about program scope and intent,” and “internal discord,” concluding that this “infighting [was]
endangering [the] pursuit of [the Mint’s] goal.” Pl.’s Resp. SMF ¶¶ 36, 38; Def.’s Mot, Ex. 15 at
Bates 002548; see also Def.’s Mot., Ex. 16. Mr. Craig does not dispute that Mitre made these
findings or that they were presented to Ms. Babers. Nor does Mr. Craig offer any evidence that
Ms. Babers did not honestly believe in Mitre’s findings or that she had any reason to disregard
Ms. Babers also testified that she observed “firsthand” Mr. Craig’s “lack of leadership
in terms of  collaboration.” Babers Dep. at 119:11–15.
them. Thus, even though Mr. Craig disagrees with Ms. Babers’s assessment, he does not identify
any reason to question the genuineness of her stated criticisms with respect to the OMS Project.
2. Marketing Plan
Ms. Babers also faulted Plaintiff’s performance on the Mint’s Marketing Plan.
According to her, Mr. Craig had been directed “to deliver a high quality Comprehensive
Marketing Plan and Advertising Spend Request” which was “critical to reverse the steady
decline of the Mint’s numismatic customer base,” but he “left primary oversight of the plan to
his deputy and, ultimately, the plan was not acceptable.” Pl.’s Opp’n, Ex. 24 at Bates No. 00178,
ECF No. 41-19; see also Babers Dep. at 174:16–17 (“it was my understanding from [Mr. Craig]
that [his deputy] had the more technical [marketing] experience and in fact that she was the one
who was within Sales and Marketing leading this . . . marketing plan effort.”); Pl.’s Opp’n, Ex.
11 (“the Comprehensive Numismatic Marketing Plan and the advertising spend request[s] . . .
were critical to reverse the steady decline of the Mint’s numismatic customer base,” which
“required significant guidance and direction and . . . were not ultimately successful in FY12.”).
Mr. Craig does not present any evidence that disputes Ms. Babers’s justification. Indeed, he
does not present any evidence that the Marketing Plan was not his responsibility, that the Plan
was not critical to the Mint, that he did not delegate it to his deputy,11 that the Plan was, in fact,
acceptable, or that it was ever approved by the Treasury in FY 2012.
Although Mr. Craig denies that he delegated “much of the responsibility for the plan to
his Deputy,” he does not point to any evidence supporting his position. Instead, he points to an
email from Mr. Peterson that praised Mr. Craig for his performance on the FY 2011 marketing
and advertising campaign. Because that evidence does show Mr. Craig did not delegate the
Marketing Plan to his deputy, the Court cannot find that Mr. Craig has created a genuine issue of
material fact on that point. See Fed. R. Civ. P. 56(e) (“If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may . . . consider the fact undisputed for purposes of the motion.”.)
Instead, Mr. Craig again argues that Ms. Babers’s assessment was flawed. First, Mr.
Craig argues that he previously received praise by Mint employees other than Ms. Babers, which
he claims undermines Ms. Babers’s evaluation. For example, he points out that, in June 2012,
the Mint’s Chief Counsel reviewed a draft of the Marketing Plan and stated that it was “the best
piece of work in terms of a marketing plan that [he] ha[d] seen in some time. Nice Job!” Pl.’s
Opp’n Ex. 19. But an unqualified assessment of the Marketing Plan carries very little weight
when the record does not suggest that the Chief Counsel had any specific knowledge or expertise
in the field of marketing. However, Mr. Craig also points to the praise he received from his
former supervisor, Mr. Peterson. Specifically, in the justification for Mr. Craig’s 2011 bonus,
Mr. Peterson stated that Mr. Craig “excelled in creating a comprehensive Mint Marketing and
Advertising Campaign” for FY 2011, Pl.’s Opp’n, Ex. 2, ECF No. 41-4, and prior to Ms.
Babers’s arrival, he had rated Mr. Craig’s performance on the Marketing Plan as “Exceeded,”
Pl.’s Opp’n, Ex 18. But between the time that Mr. Peterson gave his mid-year review and the
time Ms. Babers gave her final evaluation, the Marketing Plan failed with Treasury. Thus, it
should be no surprise that the year-end evaluation would be worse than the mid-year evaluation.
In any event, as explained above, even if others at the Mint might have considered earlier drafts
of the Marketing Plan to be praiseworthy or viewed Mr. Craig’s prior work on the project to be
laudable, it does not demonstrate that Ms. Babers’s stated reasons were pretextual, particularly
when he does not dispute the facts underpinning her stated reasons. See, e.g., Robertson, 767 F.
Supp. 2d at 193. Indeed, the Court cannot find that Ms. Babers was unreasonable in finding the
Marketing Plan to be unacceptable when it is undisputed that Treasury officials, who were the
target audience for the Plan, observed that aspects of it were not sufficiently “convincing” or
“compelling,” Def.’s Mot., Ex. 23, and the United States Treasurer expressed concern that the
Marketing Plan was not “going well.” Babers Dep. at 164:18, 165:12–15.
Mr. Craig also argues that the Marketing Plan document that was submitted for the
Mint’s signoff—which was ultimately never approved—was actually a summary of the
Marketing Plan that was put together by Ms. Babers without the knowledge or assistance of Mr.
Craig or SAM. Craig Decl. ¶¶ 24–25. But Mr. Craig points to no evidence suggesting that the
summary misrepresented SAM’s Marketing Plan or that the ultimate rejection of the plan was
somehow attributable to Ms. Babers’s work, rather than the Marketing Plan upon which it was
based.12 Indeed, the evidence suggests that the Marketing Plan upon which the memo was based
received criticisms from Treasury at approximately the same time that the memorandum was
circulating for approval. See Def.’s Mot., Ex. 24 (first signoff of memorandum dated August 22,
2012); Def.’s Mot., Ex. 23 (email detailing Treasury’s questions, comments, and criticisms of
Marketing Plan from meeting held on August 23, 2012). It is therefore unsurprising in light of
Treasury’s critique that the memorandum would not be approved. Thus, Mr. Craig has not
presented any evidence demonstrating that Ms. Babers’s assessment of his performance on the
Marketing Plan was either dishonest or unreasonable.
There is no dispute that Mr. Craig had substantial or total responsibility over two projects
that failed. Although one could disagree over how much responsibility Mr. Craig had for each
failure, it was certainly not unreasonable to conclude that this performance did not merit either
Likewise, Mr. Craig’s contention that Ms. Babers surreptitiously removed a section
about a mobile device application from the Plan, which had been requested by Treasury, does not
create a genuine issue of fact when there is no evidence that anyone, including Treasury, found
the Plan to be inadequate because it did not have such a section in it. See Craig Decl. ¶ 8.
an “Exceeded” rating or a bonus. Accordingly, the Court finds that Plaintiff has failed to rebut
Defendant’s stated explanation of his performance rating or set forth any other evidence from
which to infer that it was the result of racial discrimination. Thus, the Court must grant summary
judgment to Defendant with respect to Count V of Plaintiff’s Amended Complaint. See Allen,
795 F.3d at 44 (summary judgment was warranted when “[n]othing in the record suggest[ed] that
[supervisor] did not genuinely and reasonably believe she made the right decision in the
performance ratings she assigned to [plaintiff]”).
B. Removal from A/D SAM, Detail to Executive Lead, and Reassignment to A/D ES&H
Mr. Craig also alleges that Defendant engaged in retaliation and racial discrimination by
removing him from the A/D SAM position, detailing him to the “Executive Lead” position, and
then later reassigning him to the role of A/D ES&H. Am. Compl. ¶¶ 61–71, 87–93. Defendant
argues that Mr. Craig was removed from the A/D SAM position because of his sub-par
performance on the OMS Project and the Marketing Plan and that he was detailed to the
Executive Lead position because it represented a “better fit” for him.13 As discussed above, Mr.
Craig has not put forth any evidence demonstrating that Ms. Babers’s criticisms of his
performance on the OMS Project and the Marketing Plan were either dishonest or unreasonable.
Therefore, the question is whether Plaintiff has produced any other evidence that would allow a
reasonable jury to find that the Defendant’s stated reasons were pretext for Defendant’s actions
and that the real reasons were to discriminate or retaliate against him. In reviewing this claim,
Although Mr. Craig does not claim that the transfer resulted in a loss of salary, grade
level, or benefit, the D.C. Circuit has held that transfers, even if described as “lateral transfers,”
may constitute adverse employment actions. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir.
2007). Where, as in this case, an employer “withdraw[s] an employee’s supervisory duties,” that
“constitutes an adverse employment action.” Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir.
the Court distinguishes between the Defendant’s decisions (1) to remove Mr. Craig from the A/D
SAM position, (2) to detail Mr. Craig to the Executive Lead position, and (3) to reassign Mr.
Craig to the A/D ES&H position.
The Court first considers whether Mr. Craig has presented any evidence that the real
reason that the Mint removed him from the A/D SAM position, detailed him to the Executive
Lead position, and ultimately reassigned him to A/D ES&H was to retaliate against him.
To start, Mr. Craig does not present any evidence that his removal from A/D SAM was
the result of retaliation. In fact, the record suggests that Ms. Babers was contemplating removing
Mr. Craig from the A/D SAM position before he engaged in any protected activity at all. There
is no dispute that, as early as September 25, 2012, Ms. Babers and Mr. Craig had been discussing
the idea of finding another position at the Mint that would be a “better fit” for Mr. Craig and that
Mr. Craig did not initiate any protected activity until one month later. See Babers Dep. at
166:22–67:2 (“I said, perhaps it would be better for us to see if there is a better fit for you at the
Mint than the marketing job.”); id. at 172:10–73:1 (“it was clear that when I said this is not a
good fit for you” and “I said, let’s talk about what position within the Mint might be a better fit
for you that . . . we weren’t talking about what within Sales and Marketing could you do more of,
it was what instead of Sales and Marketing might be a better fit.”); Craig Decl. ¶ 9 (“I was
completely surprised when Ms. Babers raised performance criticisms with me in the September
25 meeting” and “[h]er suggestion that there might be a ‘better fit’ for me elsewhere in the
organization took me aback.”). Indeed, in Mr. Craig’s October 26, 2012 EEO complaint, he
wrote that, at the September meeting, Ms. Babers wanted “to discuss what [Mr. Craig] wanted to
do in the future, as it was ‘time for them to find a better fit for him’ than his current position” and
that she wanted to “transition [him] out of SAM.” EEO Compl. at Bates No. 00109. Mr. Craig
points out, however, that the formal announcement that Mr. Craig would be vacating the A/D
SAM position was issued only six days after Ms. Babers learned of Mr. Craig’s EEO activity.
See Pl.’s Opp’n at 28. Although “temporal proximity of an adverse action close on the heels of
protected activity is a common and highly probative type of circumstantial evidence of
retaliation,” Allen, 795 F.3d at 40 (citing Hamilton, 666 F.3d at 1357–59), the Supreme Court
has made clear that “[e]mployers need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their proceeding along lines previously
contemplated, though not yet definitively determined, is no evidence whatever of causality.”
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). Because the undisputed evidence
demonstrates that Ms. Babers contemplated removing Mr. Craig from his position before she
learned of his protected activity, the fact that the Mint later “proceed[ed] along [those] lines”
does not demonstrate that his removal was retaliatory. Accordingly, Mr. Craig has failed to
demonstrate a genuine issue of material fact with respect to his removal from A/D SAM.
However, there remains a genuine dispute as to whether Ms. Babers contemplated
detailing Mr. Craig to a role as inferior as the Executive Lead position prior to Mr. Craig’s EEO
complaint. Mr. Craig argues that his detail to “the previously non-existent Executive Lead
Position,” was a materially adverse employment action because it left him “without staff and
with greatly diminished duties for over a year and a half.” Pl.’s Opp’n at 25; see also Craig
Decl. ¶ 14 (“In the Executive Lead position, I had no staff or administrative support. I spent a
significant amount of time entering data or sorting through information—tasks that would
typically be performed by a grade GS-5 or a GS-7 employee. I was extremely isolated and
marginalized in the position, which did not draw upon my accomplishments, experience, or skill
as an SES executive.”). Defendant does not dispute this. Instead, Defendant argues that Ms.
Babers and Mr. Craig jointly discussed the “parameters” of the Executive Lead role between
September 2012 and December 2012 and that these discussions ultimately culminated in the
Executive Lead role that Mr. Craig assumed. See Def.’s Mot. at 22–23; Def.’s Reply at 10.
Thus, Defendant attempts to argue again that it was “proceeding along lines previously
contemplated” when it detailed him to the position. Def.’s Mot. at 21 (citing Breeden, 532 U.S.
Mr. Craig, however, presents competent evidence that casts doubt on how well formed
the position was when Ms. Babers learned of his EEO activity. To start, it is clear that the
Executive Lead role was not defined when Ms. Babers and Mr. Craig had the “better fit” meeting
in September 2012. See Babers Dep. at 174:2–10 (at the September 2012 meeting, “[i]n my head
was, wow, this is a mismatch in terms of skill sets and what we need. . . . I hadn’t thought about
. . . the specific next steps for getting the match . . . but I wanted to have a conversation with [Mr.
Craig] about it to see where he was coming from.”). But more importantly, it appears that Ms.
Babers had not yet decided at least some fundamental details concerning the position by the time
she learned of Mr. Craig’s EEO complaint. For example, Ms. Babers admitted in her deposition
that she had not yet “made a decision that [Mr. Craig] wouldn’t have any staff as of December
11, 2012”—six days after she learned of his complaint. Babers Dep. at 203:10–13. Furthermore,
even if Ms. Babers and Mr. Craig previously discussed the general parameters of the Executive
Lead position, Mr. Craig attested that he and Ms. Babers “did not discuss specifics about what
[he] would be doing in the Executive Lead position.” Craig Decl. ¶ 15. And it is undisputed that
Ms. Babers did not inform Mr. Craig of “whether or how much staff [he] would have, where
[his] position would be located within the organization, or what budget [he] would be working
with.” Craig Decl. ¶ 15; see Babers Dep. at 203:10–204:4. Critically, Defendant has proffered
no evidence demonstrating that any of those areas had been previously contemplated or defined.
Because Mr. Craig claims that each of those aspects contributed to the detrimental nature of his
position and there is no evidence that Ms. Babers or anyone else at the Mint had decided those
issues prior to Mr. Craig’s EEO activity, Defendant has not shown that it was proceeding along
lines previously contemplated.
Defendant argues, however, that the notion of “creating out of whole cloth an entire
division with budget, staff, and resources commensurate with other A/D positions . . . flies in the
face of any basic understanding of the Mint’s organizational structure.” Def.’s Reply at 10–11.
Specifically, Defendant explains that there were only a “handful” of SES positions in the Mint
and that, at the time Mr. Craig and Ms. Babers discussed the role, they “were all filled.” Babers
Dep. at 191:6–11. Thus, according to Defendant, “[a] reasonable person could only have
understood the discussions of the alternative role in the September 2012 through November 2012
timeframe as . . . exactly as culminated in the announcement of the Executive Lead role—a detail
to unclassified duties with the responsibility to establish a long range, comprehensive planning
mechanism that focused on cross-organizational, Mint-wide processes.” Def.’s Reply at 10. But
the issue is not what a reasonable person would have understood the discussions between Ms.
Babers and Mr. Craig to mean. Rather the issue is what Defendant intended Mr. Craig’s detail to
be prior to learning of his EEO activity. While evidence that the Mint’s other SES positions
were occupied might help explain why Ms. Babers ultimately detailed Mr. Craig to the Executive
Lead position and why it ultimately took the form that it did, it does not necessarily demonstrate
that Ms. Babers made those decisions prior to learning about Mr. Craig’s EEO activity.14
Defendant’s argument also seems to be undercut by the undisputed fact that there was
an SES position available on the day that Mr. Craig was detailed to the Executive Lead position.
Indeed, the Acting A/D Manufacturing position, which Mr. Craig previously expressed interest
Indeed, as noted above, there are at least some key aspects of the position that Ms. Babers had
not decided, such as Mr. Craig’s supervisory authority. See Babers Dep. at 203:10–13. Thus,
the Court finds that a reasonable jury could conclude that detrimental aspects of the Executive
Lead position were not decided until after Ms. Babers learned of Mr. Craig’s EEO activity. If a
jury were to reach that conclusion, then it may also consider the temporal proximity between Ms.
Babers coming to learn of Mr. Craig’s EEO activity on December 5 and Mr. Craig’s detail to the
Executive Lead role on December 11 as “highly probative . . . evidence of retaliation.” Allen,
795 F.3d at 40 (citing Hamilton, 666 F.3d at 1357–59). The Court is mindful, however, that
“[o]nce an employer proffers a legitimate reason for an allegedly retaliatory action, ‘positive
evidence beyond mere [temporal] proximity is required to defeat the presumption that the
proffered explanations are genuine.’” Kline v. Berry, 404 F. App’x 505, 507 (D.C. Cir. 2010)
(quoting Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007); see also Woodruff, 482 F.3d at
530 (“If temporal proximity sufficed to rebut a legitimate proffer, then protected activities would
effectively grant employees a period of immunity, during which no act, however egregious,
would support summary judgment for the employer in a subsequent retaliation claim.”).
Here, the Court is convinced that Mr. Craig has carried that burden through his
identification of procedural irregularities associated with the detail to the Executive Lead role.15
in, was vacated on the same day because Ms. Babers decided to select Mr. Landry, who was
serving in that role, to act as Mr. Craig’s temporary replacement as Acting A/D SAM. So, the
Mint could have simply switched Mr. Craig’s and Mr. Landry’s positions. Furthermore,
Defendant concedes that it did eventually create an entirely new permanent SES position for Mr.
Craig, the A/D ES&H position, which it claims gave him “several direct reports” and
responsibility “oversee[ing] a programmatic function that is critical to the Mint.” Pl.’s Resp.
SMF ¶ 117.
Although Mr. Craig also argues that his retaliation claim is supported by Ms. Babers’s
alleged retaliatory treatment of two other employees, the Court need not resolve this issue at this
time. The Supreme Court has instructed that “me too” evidence such as this is neither per se
To start, the HR representative primarily responsible for SES executives at the Mint testified that
a detail to a role like Executive Lead would ordinarily have been coordinated with her. See
Fogan Dep. at 30:22–31:8. In this instance, however, she was not consulted and did not even
learn about Mr. Craig’s detail until Mr. Peterson issued the Mint-wide announcement on
December 11, 2012.16 See Fogan Dep. at 30:22–31:22. Moreover, under the Office of Personnel
Management procedures governing the SES, the Mint was prohibited from detailing Mr. Craig to
a position that was not formally classified at the SES level for more than 240 days. Pl.’s Resp.
SMF ¶¶ 10–12; Pl.’s Opp’n, Ex. 16 at 9, 11–12. Despite this clear prohibition, Mr. Craig
encumbered the Executive Lead position, well beyond this 240-day limit. See Pl.’s Resp. SMF
¶ 103; Nicholson Dep. at 95:5–7. Thus, the picture painted by the evidence is this: there was
little or no advanced planning done to place Mr. Craig in the Executive Lead position and then,
literally days after becoming aware of the EEO claim, Mr. Craig’s transfer was effected
admissible nor per se inadmissible. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388
(2008). Rather, the question is “fact based and depends on many factors, including how closely
related the evidence is to the plaintiff’s circumstances and theory of the case.” Id. “Among the
factors to consider are whether such past discriminatory behavior by the employer is close in
time to the events at issue in the case, whether the same decisionmakers were involved, whether
the witness and the plaintiff were treated in a similar manner, and whether the witness and the
plaintiff were otherwise similarly situated.” Elion v. Jackson, 544 F. Supp. 2d 1, 8 (D.D.C.
2008). Defendant presents several arguments for why those employees were not similarly
situated, see Def.’s Reply at 19–21, which ordinarily presents a question of fact for the jury, see
Wheeler, 812 F.3d at 1115. But because the Court finds other evidence is sufficient to give rise
to a genuine dispute as to the issue of retaliation vel non such that summary judgment is not
warranted, the Court will reserve ruling on the relevance and admissibility of Mr. Craig’s “me
Mr. Craig also points out that the paperwork that memorialized Mr. Craig’s detail was
not prepared until March 2013—more than three months after the detail was first announced.
See Def.’s Mot., Ex. 4 at 11, ECF No. 34-4. However, Mr. Craig does not present evidence of
how long it normally takes to have such paperwork submitted. Even so, this fact would seem to
strengthen Plaintiff’s claim of a lack of advanced planning for the transfer.
following no established procedures. Under those circumstances, a reasonable juror could
certainly conclude that this was a knee-jerk reaction done in retaliation for his EEO claims.
Summary judgment is therefore not appropriate on this issue.
Summary judgment is likewise not appropriate with respect to Mr. Craig’s reassignment
to the A/D ES&H position. Defendant argues that this reassignment, which occurred in July
2014, was “almost 18 months after [Ms.] Babers first learned of the Plaintiff’s EEO activity” and
that, given this lack of temporal proximity, there can be no inference of retaliatory intent. See
Def.’s Mot. at 21–22. While it is true that the Mint did not reassign Mr. Craig to the A/D ES&H
position until over a year after his first EEO complaint, the D.C. Circuit has cautioned that
subsequent protected activity should also be considered when assessing temporal proximity.
Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012) (“we have held that courts should
consider later protected activity in determining whether evidence of temporal proximity satisfies
the causation element.”) (citing Jones v. Bernanke, 557 F.3d 670, 680 (D.C. Cir. 2009) and
Singletary v. Dist. of Columbia, 351 F.3d 519, 524 (D.C. Cir. 2003)). Doing so, it becomes clear
that Mr. Craig continued to engage in protected activity well after his initial complaint. Indeed,
Mr. Craig continued to participate in the EEOC investigation until at least February 2014, see
Def.’s Mot. Partial Dismissal or Partial Summ. J., Ex. 2, ECF No. 10-2, and the investigation
itself lasted until March 2014. See Pl.’s Opp’n Def.’s Mot. Partial Dismissal or Partial Summ. J.,
Ex. J, ECF No. 12-12. Thus, Mr. Craig’s reassignment occurred within three or four months of
Mr. Craig’s last protected act. Admittedly, this degree of temporal proximity is generally
considered to be at the tail-end of what courts typically find sufficient to give rise to an inference
of causation. See Booth v. Dist. of Columbia, 701 F. Supp. 2d 73 (D.D.C. 2010) (“action which
occurs more than three or four months after protected activity is not likely to qualify for such a
causal inference.”) (citing Clark Cty Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)); Greer
v. Bd. of Trustees of Univ. of D.C., 113 F. Supp. 3d 297, 311 (D.D.C. 2015) (“When relying on
temporal proximity alone to demonstrate causation, there is no bright-line rule, although three
months is perceived as approaching the outer limit.”) (citing Hamilton v. Geithner, 666 F.3d
1344, 1357–58 (D.C. Cir. 2012)) Nevertheless, the Court finds that this temporal proximity,
when combined with the evidence of potential retaliation associated with Mr. Craig’s detail to
the Executive Lead position, would allow a reasonable juror to conclude that the Mint’s motives
The Court notes that it is questionable whether Mr. Craig’s reassignment to the A/D
ES&H position was a materially adverse employment action. As a discrete decision, it would
seem the actionability of that reassignment should be evaluated on its own merits, rather than
simply as a continuation of prior retaliatory acts. C.f. Nat’l R.R. Passenger Corp. v Morgan, 536
U.S. 101, 114 (2002) (continuing violation doctrine does not apply to “[d]iscrete acts such as
termination, failure to promote, denial of transfer, or refusal to hire” because “[e]ach incident of
discrimination and each retaliatory adverse employment decision constitutes a separate
actionable “‘unlawful employment practice.’”). Of course, actionability requires that the
reassignment be a materially adverse employment action. To assess whether an employment
decision is materially adverse in a case where “plaintiff alleges retaliation based on a
reassignment, the fact-finder must compare the position the plaintiff held before the transfer to
the one he holds afterwards.” Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir.
2010). In this case, even though the A/D ES&H position is arguably not of the same stature as
his prior A/D SAM position, it would seem to be better than the Executive Lead role that he held
immediately before the reassignment because he now has some supervisory authority, it protects
his SES salary, and he could not have continued in his non-SES duties. As a result, there
remains a question of whether the reassignment actually constituted a materially adverse
employment action and, consequently, whether it is independently actionable.
Nevertheless, the Court need not decide this issue because the Defendant has not raised it
as a basis for summary judgment and, in any event, whether Mr. Craig’s reassignment is a
separate claim would seem to have little practical consequence for the trial of this case. First,
given that there is no evidence that Mr. Craig’s salary ever changed as a result of his detail or
reassignment, any claim based on Mr. Craig’s A/D ES&H reassignment would not seem to
entitle Plaintiff to any further relief in the form of back pay. Second, given that Mr. Craig’s
overarching claim is that he was removed from his position and never restored to his prior level
of responsibility, even if the reassignment were not a separate claim, evidence of the
reassignment would still be admissible to prove the continued emotional harm Plaintiff suffered
from the Mint’s earlier actions and its continued refusal to restore him to his prior level of
responsibility. Lastly, whether or not the reassignment is treated as a separate claim would seem
2. Racial Discrimination
The Court next turns to Mr. Craig’s racial discrimination claim. Review of the record
demonstrates that Mr. Craig has not offered any evidence from which a reasonable jury could
conclude that Ms. Babers’s actual reason for removing him from the A/D SAM position,
detailing him to the Executive Lead position, or later assigning him to the A/D ES&H position
was to discriminate against Mr. Craig on the basis of his race. Mr. Craig argues that “[m]uch of
the same evidence that proves Mr. Craig’s reprisal claims . . . also supports his claims of
discrimination” and that it is also supported by the fact that similarly-situated Caucasian men
received more favorable treatment. Pl.’s Opp’n at 28. The Court finds these arguments
First, Mr. Craig offers no evidence supporting his claim that he was removed from the
A/D SAM position as a result of racial discrimination. For example, Mr. Craig has not shown
that there have been any changes or inconsistencies in the stated reasons for removing him from
the position, that Ms. Babers or Mr. Peterson made any racially insensitive or discriminatory
remarks, or that Defendant’s general treatment of African-American employees was any worse
than their treatment of other employees.18 Instead, Mr. Craig again relies primarily on his
to have little, if any, impact on the Court’s remedial options if Plaintiff prevails on his earlier
claims because the Court would still need to consider whether Plaintiff was entitled to be placed
in a position with greater responsibilities than the A/D ES&H position.
Although Mr. Craig presents testimony from a co-worker who believes Ms. Babers
“directly discriminates against individuals,” Nicholson Dep. 38:14–15, such conclusory,
unsubstantiated testimony is not sufficient to raise a genuine issue of material fact as to pretext,
see, e.g., Ransom v. Ctr. For Nonprofit Advancement, 514 F. Supp. 2d 18, 27 (D.D.C. 2007)
(conclusory testimony of co-worker regarding discrimination against plaintiff was not “actual
evidence” of pretext); Chung v. Washington Metro. Area Transit Auth., No. 04–0366, 2007 WL
1154084, at *3 (D.D.C. Apr. 18, 2007) (co-worker testimony that plaintiff failed to receive
promotion based on race and gender was not probative of pretext); Carter v. Rubin, 14 F. Supp.
arguments that Ms. Babers’s assessment of his performance was flawed. But, as discussed
above, Mr. Craig has not demonstrated that Ms. Babers’s beliefs were either dishonest or
unreasonable. Thus, these arguments fail once again. Mr. Craig also points out, however, that
Defendant later filled the Acting-A/D SAM position with two white employees—Mr. Croft and
Mr. Landry. However, this alone does not demonstrate pretext for racial discrimination.
While it is certainly true that “[o]ne way to discredit an employer’s justification is to
show that similarly situated employees of a different race received more favorable treatment,”
Mr. Craig has not done that here. Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 548 F.3d
137, 145 (D.C. Cir. 2008) (citing Brady, 520 F.3d at 495). Mr. Craig argues simply that Mr.
Landry and Mr. Cameron, two white SES employees, each held the Acting A/D SAM position
after it was vacated by Mr. Craig. But, as the D.C. Circuit has previously held, the mere fact that
a defendant hired white employees to fill a position that was formerly occupied by an AfricanAmerican employee is not enough on its own to rebut a defendant’s performance-based, nondiscriminatory reasons for an adverse action. See id. at 146 (affirming summary judgment where
plaintiff “provid[ed] no evidence of unlawful discrimination that the court might properly
consider” other than “evidence that he and his African American supervisor were replaced by
white employees”); Harris v. Grp. Health Ass’n, Inc., 662 F.2d 869, 872 (D.C. Cir. 1981)
(holding that there is no inference of discrimination based purely on fact that plaintiff “was black
and that the person [that defendant] first considered to replace her was a white male,”
2d 22, 42 (D.D.C. 1998) (finding that “broad allegations” of discrimination within a government
agency “have no bearing” on the question of pretext).
particularly where there was “evidence that the reason for [plaintiff’s] discharge was her
inadequate performance at her position.”).
Moreover, Mr. Craig has failed to show that he was similarly situated to either Mr.
Cameron or Mr. Landry, yet they received more favorable treatment. Specifically, he has not
shown that “all of the relevant aspects of [his] employment situation were ‘nearly identical’”
such that they could be considered “similarly situated.” Neuren v. Adduci, Mastriani, Meeks &
Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (quoting Pierce v. Commonwealth Life Ins. Co., 40
F.3d 796, 802 (6th Cir. 1994)). Importantly, the dynamic was this: Ms. Babers believed that Mr.
Craig had failed as A/D SAM (which he has not shown to be either dishonest or unreasonable)
and then the Mint needed to consider how to fill that position. Mr. Cameron and Mr. Landry, on
the other hand, had never served in that position before and had certainly never failed in that
particular position.19 In addition, unlike Mr. Craig, Mr. Landry and Mr. Cameron were selected
to fill the A/D SAM position in an acting capacity rather than on a permanent basis. See Kline v.
Springer, 602 F. Supp. 2d 234, 240 (D.D.C. 2009) (temporary detailee was not similarly situated
to permanent employee); see also McMillan v. Bair, 304 F. App’x 876, 877 (D.C. Cir. 2008)
(“probationary trainees are not similarly situated to permanent employees for purposes of Title
VII”). Finally, Mr. Craig fails to argue or identify any evidence demonstrating that either Mr.
Cameron’s or Mr. Landry’s performance as Acting A/D SAM was commensurate with his
performance or that Defendant treated their failures any differently than they treated his. See
e.g., Neuren, 43 F.3d at 1514 (plaintiff was not similarly situated to colleague where employer
viewed the “unrelated criticisms” of colleague as “less serious” than the criticisms of plaintiff);
Although Plaintiff argues that Mr. Cameron had previously performed poorly in
another position outside of the Mint, see Pl.’s Opp’n at 21, he was not placed back in that
Kline, 602 F. Supp. 2d at 240 (holding that plaintiff’s colleagues were not similarly situated, in
part, because “plaintiff failed to show that her performance was similar to theirs”). For all of
these reasons, Mr. Cameron and Mr. Landry were not similarly situated to Mr. Craig.
Nevertheless, Mr. Craig argues that a discriminatory inference should be drawn based on
Mr. Landry’s and Mr. Cameron’s lack of marketing experience. Mr. Craig points out that, part
of the purported reason for removing Mr. Craig from the A/D SAM position was because Ms.
Babers believed that he did not have the marketing expertise necessary to successfully complete
the Marketing Plan. According to Ms. Babers, the Mint had been “trying to develop a marketing
plan[,] which[,] in order to be done well[,] needed marketing expertise.” Babers Dep. at 170:9–
11; see also id. at 174:2–5 (“In my head was, wow, this is a mismatch in terms of skill sets and
what we need, because we needed the technical marketing.”). Mr. Craig argues, that, in fact,
neither of the men that came after him had the marketing expertise that Mr. Craig supposedly
lacked, yet they were still selected for the position.
Fundamentally, this argument is flawed because it assumes that the desirable
qualifications and credentials of someone assuming a permanent A/D SAM position are the same
as the qualifications and credentials of someone assuming the position in a temporary or acting
capacity. While Ms. Babers’s comments might suggest a desire to ultimately hire a permanent
A/D SAM with marketing expertise, they do not go so far as to demonstrate that it is the most
important qualification or even a necessary credential for purposes of selecting someone to
immediately fill that role on a temporary, acting basis. Indeed, when employers are faced with
the need to fill high-level positions temporarily, they may very well be unable to identify, within
a reasonable time, any person with the qualifications or credentials that they would ordinarily
require of someone filling the position on a permanent basis. Thus, expediency may require
employers to prioritize the qualifications that they deem most important in order to fill the
position in a timely fashion. In this case, when Mr. Craig was removed, Ms. Babers detailed Mr.
Landry to the Acting-A/D SAM position because she sought “to have an experienced SES
member who was knowledgeable of the Mint’s mission and operations to act in the role until
such time as a permanent SES assignment could be made.” Def.’s Reply at 15; see also Babers
Dep. at 217:1–10 (Mr. Landry had been “Acting Associate Director for Manufacturing for about
18 months at that time” and “[i]n that role he seemed very effective in terms of managing the
organization[,]” so “I thought that that would be a good fit for him . . . to act for the Sales and
Marketing” Division); Peterson Dep. at 170:9–17 (“Ms. Babers recommended that Mr. Landry
move into the AD of Sales and Marketing because . . . he’s been in D.C. for a year-and-a-half,
had established contacts in  Sales And Marketing, understood . . . the ebbs and flows of the
numismatic business, and  he would be more seamless than anybody else at the Mint.”). Then,
in 2014, when the Mint needed Mr. Landry to return to full-time management at the Philadelphia
manufacturing facility, Mr. Cameron was detailed to Acting A/D SAM position only after no
viable candidate could be found to fill the position permanently. See Cameron Dep. 43:11–22.
Mr. Craig gives the Court no reason to doubt these explanations for selecting either Mr. Landry
or Mr. Cameron to temporarily serve as Acting A/D SAM. The mere fact that they did not have
the marketing expertise that Ms. Babers might require of a candidate for the permanent position
does not advance Mr. Craig’s argument, particularly when he has not shown that there was
anyone that the Mint could have selected to temporarily fill the position who had such expertise.
Thus, Mr. Craig has not presented any evidence from which a reasonable trier-of-fact might
conclude that the Defendant’s stated reasons for removing Mr. Craig from the A/D SAM
position was pretext for racial discrimination.
Mr. Craig’s discrimination claims relating to his detail to the Executive Lead position and
assignment to the A/D ES&H position do not fare any better. First, Mr. Craig does not offer any
other evidence to support his claim of racial discrimination. As discussed above, however, Mr.
Craig’s detail to the Executive Lead role was attendant with certain procedural irregularities.
Specifically, the failure to consult with the HR Department prior to announcing the detail and the
length of the detail, which violated the policies applicable to detailing SES executives. But
Courts in this circuit have concluded that “‘procedural irregularities’” do not establish pretext
“absent some actual evidence that defendant acted on a motivation to discriminate.” Kelly v.
LaHood, 840 F. Supp. 2d 293, 302 (D.D.C. 2012) (quoting Oliver–Simon v. Nicholson, 384
F.Supp.2d 298, 312 (D.D.C. 2005); see also Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir.
1982) (“a failure on the part of the prospective employer to follow its own regulations and
procedures, alone, may not be sufficient to support a finding of age discrimination.”); Johnson v.
Dist. of Columbia, 99 F. Supp. 3d 100, 106 (D.D.C. 2015) (“the procedural defect must evidence
the employer’s discriminatory bias”); Washington v. Chao, 577 F. Supp. 2d 27, 46 (D.D.C. 2008)
(“procedural irregularities do not raise an inference of racial discrimination unless there is a
connection to the discrimination that the plaintiff is claiming”) (citing Adeyemi v. Dist. of
Columbia, 525 F.3d 1222, 1228 (D.C. Cir. 2008)). Mr. Craig has produced no evidence that
racial discrimination played any role in Defendant’s failure to consult with the HR Department
or that its violation of the SES protocols was motivated by racial animus. Accordingly, the
procedural irregularities on their own would not permit a reasonable jury to find that Defendant’s
stated reasons for the detail were pretext for discrimination. Likewise, without any evidence of
racial discrimination there can be no genuine issue as to Mr. Craig’s later reassignment to the
A/D ES&H position. Thus, the Court finds that Defendant is entitled to summary judgment on
Count III of Mr. Craig’s Amended Complaint.
C. Failure to Restore to A/D SAM or to Select as A/D Manufacturing
In addition to his complaints about Defendant removing him from his former position and
placing him in inferior ones, Mr. Craig complains that Defendant discriminated and retaliated
against him by failing to either restore him to his former position or place him in a position
commensurate with his former position, such as A/D Manufacturing. The Court finds that, while
Mr. Craig is not entitled to relief from Defendant’s failure to reinstate him to his former position,
he has demonstrated a genuine issue as to Defendant’s failure to select him to serve as A/D
Manufacturing, at least with respect to his retaliation claim.
1. Failure to Restore to A/D SAM
First, the Court can easily dispose of Mr. Craig’s claim that the Mint discriminated or
retaliated against him by failing to restore him to his former position. Defendant asserts that it
did not restore him to his former position for the same reason that it removed him from the
position—his inadequate performance of the job. See Def.’s Mot. at 29. As discussed in greater
detail above, Mr. Craig has failed to demonstrate that this reason was pretext for discrimination
or retaliation. And Mr. Craig does not present any evidence specific to this claim that tends to
rebut the Mint’s legitimate, non-discriminatory, non-retaliatory reason for not reinstating him to
a job from which he was removed due to inadequate performance. Accordingly, Mr. Craig has
failed to satisfy his burden on summary judgment.20
The Court further notes that these claims appear to be foreclosed by circuit precedent.
In Kaufman v. Perez, 745 F.3d 521 (D.C. Cir. 2014), the D.C. Circuit considered a similar claim
brought by a federal government employee. In that case, the employer revoked the plaintiff’s
duties assisting an Ombudsman after the plaintiff engaged in a pattern of unprofessional and
inappropriate behavior. See id. at 523. Following one particularly egregious incident, plaintiff’s
second-level supervisor met with plaintiff and issued a memorandum informing him “that he
2. Failure to Select as Permanent A/D Manufacturing in 2014
Finally the Court considers Mr. Craig’s argument that he was discriminated and retaliated
against when he was not selected to serve in the permanent A/D Manufacturing position in 2014.
See Pl.’s Opp’n at 39–41; Am. Compl. ¶¶ 72–86, 94–106. According to Defendant, Mr. Peterson
did not consider selecting Mr. Craig for the position because he “already had two outstanding
would no longer be performing Ombudsman’s duties.” Id. Thereafter, the plaintiff made several
requests that he be allowed to resume working for the Ombudsman, all of which were denied.
See id. at 524–25. Plaintiff brought suit against his employer challenging both the revocation of
his Ombudsman duties as well as his employer’s repeated refusals to reinstate those duties. See
id. at 526. An Administrative Law Judge dismissed the case, finding that the initial removal of
the plaintiff’s Ombudsman duties was time-bared and that the subsequent refusals to restore his
responsibilities were not actionable as they did not constitute adverse employment actions. See
id. at 526.
The D.C. Circuit affirmed. Id. at 528–30. The Court explained that “[b]ecause [the
plaintiff] was barred from performing Ombudsman duties [at the time he met with his
supervisor], he could not have suffered adverse action through the [employer]’s direct and
indirect failure to subsequently assign him such work.” Id. at 529. The Court did, however,
leave open the possibility that “a failure to reinstate might in some circumstances constitute an
independent discriminatory act.” Id. at 529. Specifically, it suggested that such a claim may lie
whenever there is “initial or subsequent uncertainty” as to definiteness of the employment action
or where a “defect in the reinstatement process” rendered “the failure to reinstate independently
adverse to the claimant.” Id. at 530 (emphasis in original). These circumstances, however, did
not apply to the plaintiff in Kaufman because the plaintiff had “failed to demonstrate any
uncertainty about his prohibition.” See id. It also observed that, because “there was never . . . a
termination, there was no reinstatement process, nor indeed any other process, let alone a
defective process.” Id. Accordingly, the Court held that the plaintiff “failed to demonstrate that
any [of the employer’s] later actions were adverse” because the plaintiff’s “prohibition was clear
from the beginning, and that clarity never abated.” Id.
Here, the Defendant’s failure to restore Mr. Craig to his former A/D SAM position was
not “independently adverse” to him. Mr. Craig was definitively removed from his position as
A/D SAM for performance reasons by January 2013. Mr. Craig has not shown that this decision
was provisional, that it was subject to any further review, or that he had any reasonable
expectation that he would resume those duties in the future. And, like Kaufman, that “clarity
never abated” even despite Mr. Craig’s requests to be returned to the position. See id. Mr. Craig
has also not shown that he participated in any sort of reinstatement process or that any such
process suffered from a defect. Thus, as in Kaufman, Mr. Craig has failed to demonstrate that
Defendant’s refusal to restore him to the A/D SAM position was an independent adverse
SES members within the Mint,” Mr. Croft and Mr. Landry, both of whom had extensive prior
manufacturing experience and both of whom had “previously served for approximately 18
months as the Acting A/D Manufacturing.” Def.’s Mot. at 36. Defendant contends that Mr.
Peterson ultimately selected Mr. Croft for the Acting A/D Manufacturing position “based upon
[his] extensive background, experience, training, and education in manufacturing.” Def.’s Mot.
When an employer argues that its hiring decision was based on the candidates’ relative
qualifications, “a plaintiff can directly challenge that qualifications-based explanation only if the
plaintiff was ‘significantly better qualified for the job’ than those ultimately chosen.” Adeyemi v.
District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (quoting Holcomb v. Powell, 433
F.3d 889, 897 (D.C. Cir. 2006)). But “[i]n cases where the comparative qualifications are close,
a reasonable jury would not usually find discrimination . . . .” Adeyemi, 525 F.3d at 1227.
Instead, “the jury would ‘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.’” Id. (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998);
accord Gilbert v. Napolitano, 670 F.3d 258, 262 (D.C. Cir. 2012). In these cases, courts “‘defer
to the employer’s decision of what nondiscriminatory qualities it will seek’ in filling a position,”
Jackson v. Gonzales, 496 F.3d 703, 708 (D.C. Cir. 2007) (brackets omitted) (quoting Stewart v.
Ashcroft, 352 F.3d 422, 429 (D.C. Cir. 2003)), and “must respect the employer’s unfettered
discretion to choose among qualified applicants.” Grosdidier v. Broad. Bd. of Governors, 709
F.3d 19, 26 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Fischbach v. D.C.
Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)).
To be sure, the evidence demonstrates that both Mr. Croft and Mr. Landry have extensive
experience in manufacturing, both at the Mint and elsewhere. See Pl.’s Resp. SMF ¶ 120;
Peterson Dep. at 189:13–15; Def.’s Mot., Ex. 44. In fact, both of them have considerably more
manufacturing experience than Mr. Craig, who himself has less than four years of experience.
See Pl.’s Resp. SMF ¶¶ 125–26. Viewing those credentials in isolation, a reasonable jury could
not conclude that Mr. Craig is “significantly better qualified for the job” and Mr. Craig makes no
serious attempt to argue that point. But “an employment discrimination plaintiff is not limited to
arguing that the employer’s explanation is wrong on the merit[s];” he can “show by other means
that the explanation was made up to disguise illegitimate bias.” Aka, 156 F.3d at 1299. For
instance, the plaintiff can attempt to show “that the employer’s explanation was fabricated after
the fact by showing that it contradicts other contemporaneous accounts of the employer’s
decision” or “that the employer’s explanation misstates the candidates’ qualifications.” Id. at
1295. A factfinder might also infer discrimination from evidence showing “procedural
irregularities in a highly subjective selection process, ” “attitudes suggesting the decision maker
harbors discriminatory animus,” or “data showing that the defendant employs members of the
plaintiff’s protected class at rates far below their numbers in the applicant pool and the general
population.” See Hamilton v. Geithner, 666 F.3d 1344, 1352 (D.C. Cir. 2012); Holcomb, 433
F.3d at 899.
Here, Mr. Craig essentially argues that a jury could infer discrimination and retaliation
based on the “preselection” of Mr. Croft in 2012. “‘Preselection’ refers to the practice of
soliciting a particular candidate to apply for a job vacancy.” Kilby-Robb v. Duncan, 77 F. Supp.
3d 164, 169 (D.D.C. 2015). Plaintiff points out that in December 2012, at the same time the
Mint announced Mr. Craig would be leaving the A/D SAM position, the Mint also decided to
select a new person to serve in the Acting A/D Manufacturing position. See Pl.’s Opp’n at 41–
42. Rather than approach Mr. Craig for the position, however, Mr. Peterson selected Mr. Croft, a
white employee with no prior EEO activity who had never expressed any interest in the position.
See Pl.’s Opp’n at 41–42; Croft Dep. at 34:2–10. Later, in 2014, Mr. Peterson decided that Mr.
Croft should fill the A/D Manufacturing position permanently. See Pl.’s Resp. SMF ¶¶ 121–22.
Plaintiff argues that “[h]ad [he] been given the opportunity to serve [in the Acting A/D
Manufacturing position], as Mr. Croft was, he would have been well positioned for the
permanent position” in 2014 because Mr. Peterson’s decision was supposedly influenced by Mr.
Croft’s “success while in the acting role.” Pl.’s Opp’n at 42.
Preselection is considered to be “relevant evidence of the employer’s motivation.”
Shelborne v. Runyon, No. 95-0641, 1997 WL 527352, at *10 (D.D.C. Aug. 21, 1997) (citing
Goosetree v. Tennessee, 796 F.2d 854, 861 (6th Cir.1986)). However, “[p]reselecting a
candidate for a position based upon his or her qualifications is not per se improper.” Kilby-Robb,
77 F. Supp. 3d at 169–70 (citing Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 39 (D.D.C. 2008)). In
fact, “where the selection is to be made from among a narrow band of current employees well
known to the selectors, it is hard to see how there could not be a substantial degree of preselection . . . .” Kolstad v. Am. Dental Ass’n, 139 F.3d 958, 969 (D.C. Cir. 1998). However,
preselection may raise an inference of discrimination, if an “employer preselected a candidate
out of a discriminatory motive.” Kilby-Robb, 77 F. Supp. 3d at 169; Tolson v. James, 315
F.Supp.2d 110, 118 (D.D.C. 2004) (“Pre-selection does not violate Title VII unless it is based on
discriminatory motives.”). Thus, on summary judgment, a plaintiff may demonstrate that his
non-selection was discriminatorily motivated if he “produces some evidence that discrimination
played a role in [the selectee]’s pre-selection and thus plaintiff’s non-selection.” Oliver-Simon v.
Nicholson, 384 F. Supp. 2d 298, 310 (D.D.C. 2005).
Here, the Court is persuaded that Mr. Craig has met this burden with respect to his
retaliation claim. As previously discussed, it is undisputed that Mr. Craig filed an informal EEO
complaint alleging race and sex discrimination on October 26, 2012, see Pl.’s Resp. SMF ¶ 86;
EEO Compl. ECF No. 12-18, and that the Mint learned of this claim on December 5, 2012.21 Six
days later, it was announced the Mr. Craig would assume the Executive Lead position while Mr.
Croft, a white man with no prior EEO activity, would serve in the Acting A/D Manufacturing
role. Yet, to date, Defendant has offered no explanation for why it initially chose Mr. Croft for
the acting role in 2012 or, conversely, why it did not choose Mr. Craig even though Mr. Craig
was arguably qualified. See Def.’s Mot. at 29–30. While Mr. Craig’s manufacturing experience
was not as extensive as that of Mr. Croft, the experience he did have was not insubstantial.
Although Defendant argues that there is no evidence that Mr. Peterson, who was
responsible for selecting Mr. Croft for the Acting A/D Manufacturing position in 2012, actually
had any knowledge of the EEO complaint or that Ms. Babers relayed any information to Mr.
Peterson, see Def.’s Reply at 24, such a showing is not required. “To survive summary judgment
. . . [the plaintiff] needn’t provide direct evidence that his supervisors knew of his protected
activity; he need only offer circumstantial evidence that could reasonably support an inference
that they did.” Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009). The D.C. Circuit has
held time and again that evidence “that the employer had knowledge of the employees protected
activity and the adverse personnel action took place shortly after that activity  is adequate to
permit an inference of retaliatory motive, at least at the prima facie stage.” Id. (internal
quotations and citations omitted) (emphasis in original). Moreover, “if such evidence can
support an inference of actual retaliatory motive, it necessarily can support an inference of mere
knowledge.” Id. In this case, Mr. Craig has shown that the Mint, through Ms. Babers, had
knowledge of his EEO complaint before Mr. Peterson announced that Mr. Croft would serve as
Acting A/D Manufacturing. Thus, there is at least a genuine issue as to whether Mr. Peterson
actually knew of Mr. Craig’s EEO activity and whether that knowledge resulted in the
preselection of Mr. Croft, and not Mr. Craig, for the Acting A/D Manufacturing position. Cf.
Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (“[T]he close temporal proximity of
[plaintiff’s] discrimination complaints to the refusal to consider him for the ASC Director
position is sufficient to establish a causal connection.”).
Indeed, he had experience establishing a manufacturing facility abroad for a large multinational
corporation and managing large manufacturing operations at a facility in Tennessee. See Pl.’s
Resp. SMF 126; Pl.’s Opp’n, Ex. 4. In fact, it was presumably because of these experiences that
the Mint had previously considered Mr. Craig to be among the “best qualified” applicants for the
A/D Manufacturing position when he applied for it in 2008. See Def.’s Mem. P & A. in Supp.
Mot. Partial Dismissal or Partial Summ. J. at 2–3, ECF 10. Furthermore, during the “better fit”
discussion between Ms. Babers and Mr. Craig in September 2012, the two even discussed Mr.
Craig’s aptitude for manufacturing. See Babers Dep. at 166:18–19; 169:4–11; 173:13.
Mr. Craig’s protected activity continued through 2014. Indeed, not only did Mr. Craig
file EEO complaints and participate in the EEOC’s investigation, see Def.’s Mot. Partial
Dismissal or Partial Summ. J., Ex. 2, ECF No. 10-2, but he also filed the instant lawsuit on
August 6, 2014, see Compl., ECF No. 1. Less than two weeks later, on August 19, 2014, Mr.
Peterson announced that Mr. Croft would assume the permanent A/D Manufacturing position.
See Pl.’s Resp. SMF ¶ 122. In making this selection, he did not give any thought to placing Mr.
Craig in the position, see Pl.’s Resp. SMF ¶ 124, and it appears that Mr. Croft’s experience in the
Acting A/D Manufacturing position was a crucial consideration. See Peterson Dep. at 189:9–15
(“I had two great candidates to select from,” because Mr. Landry and Mr. Croft had been “plant
managers for the two largest Mints in the World,” had “served as Acting A/D of Manufacturing
for over a year,” and had “significant private sector experience in the automotive industry.”).
Based upon these circumstances, including the temporal proximity between Mr. Craig’s various
protected activities and Mr. Croft’s selection for the temporary and permanent positions, a
reasonable jury could conclude that the Mint preselected Mr. Croft in 2012, which ultimately
allowed him to be placed in the permanent position in 2014, and that this preselection was
accompanied by retaliatory animus for those that engaged in protected activity. Thus, Mr.
Craig’s retaliation claim stemming from the Mint’s failure to select him for the permanent A/D
Manufacturing role in 2014 survives summary judgment.
By contrast, however, the record does not support the notion that racial discrimination
played any role in either Mr. Croft’s preselection in 2012 or Mr. Craig’s non-selection in 2014.
Mr. Craig points to no additional evidence of racial discrimination in 2014, but instead relies
entirely on his preselection argument. As explained elsewhere in this opinion, the record simply
contains no evidence that any of the Mint’s decisions, either in 2012 or at any other time, were
motivated in any way by racial animosity. Because Mr. Craig has produced no “evidence that
[racial] discrimination played a role in [Mr. Croft]’s pre-selection and thus plaintiff’s nonselection,” Oliver-Simon, 384 F. Supp. 2d at 310, this claim necessarily fails. Accordingly,
Defendant is entitled to summary judgment on Counts IV and VII of Mr. Craig’s Amended
For the foregoing reasons, the Defendant’s Motion for Summary Judgment (ECF No. 33)
is GRANTED IN PART AND DENIED IN PART. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: September 29, 2017
United States District Judge
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