Brown v. Mayorkas
| Decision Date | 08 May 2023 |
| Docket Number | Civil Action 20-3107 (TJK) |
| Parties | REGINA BROWN, Plaintiff, v. ALEJANDRO MAYORKAS, Defendant. |
| Court | U.S. District Court — District of Columbia |
Regina Brown, a black woman, sued the Secretary of the Department of Homeland Security, or DHS, under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 for various discriminatory actions she allegedly experienced while employed by DHS. Defendant moves to dismiss all but one of Brown's claims for failure to state a claim. Defendant argues that Brown insufficiently alleged most of her disparate-treatment, retaliation, and disparate-impact claims under Title VII, and her sex-based pay-discrimination claim under the Equal Pay Act. For the below reasons, the Court will grant Defendant's partial motion to dismiss.
According to the operative complaint, Defendant violated Title VII and the Equal Pay Act during Brown's tenure as a Management and Program Analyst (“program manager”) at U.S Immigration and Customs Enforcement (“ICE”), a component of DHS. See ECF No. 20 (“Compl.”) ¶¶ 1, 7, 37-40. Brown claims: (A) disparate treatment based on her sex or race; (B) retaliation for engaging in protected activity; (C) disparate impact based on sex or race; and (D) sex-based pay discrimination. Id. ¶¶ 37-40. Below, the Court addresses the relevant allegations supporting each claim.
Brown alleges that Defendant unlawfully carried out three employment actions based on Brown's race or sex. In 2018, Brown served as program manager for the Border Enforcement Analytics Program (“BEAP”) at ICE. Compl. ¶ 19. The first unlawful employment action, Brown says, occurred in March 2018 when Brown's supervisors “forcibly reassigned” her from BEAP to another ICE program known as FALCON. Id. ¶ 22. As part of the transfer, she had to hand over her BEAP responsibilities to two white, male special agents, Benjamin Teed and Evan Campanella. Id. And at her new FALCON post, she took on the duties of a co-worker two pay grades (“GS” levels) her junior. Id. ¶¶ 22, 33.
Second, Brown claims Defendant overlooked her for a position once she had transferred to FALCON. Compl. ¶ 34. In August 2018, the unit chief announced that Campanella, not Brown, would immediately assume the role of acting section chief over the combined BEAP and FALCON programs, now renamed RAVEn.[1] Id. ¶ 25. Brown alleges, however, that she was “more qualified for the promotions received by the white males,” including Campanella's promotion, and she “desired to be promoted to [those] positions.” Id. ¶ 34.
Third, Brown points to her second lateral transfer, this time from FALCON to HSINET/SharePoint, another ICE program. Compl. ¶¶ 26-29. Because of his promotion, Campanella had essentially become Brown's acting first-line supervisor at FALCON. Id. ¶ 25. Thus, within a week of Campanella's promotion, acting section chief of HSINET/SharePoint Matthew Grant “proposed” that Brown transition to HSINET/SharePoint, where she would continue to work as a program manager. Id. ¶ 26. This would place Brown outside Campanella's supervision. Id. Then, in September 2018, Grant “requested that [Brown] agree to be reassigned” to HSINET/SharePoint because of an “impending retirement,” id. ¶ 27, stating in an email that “the decision was his [meaning Grant's] to make,” id. ¶ 28. In Brown's view, she faced the “threat of, or the involuntary ‘choice' to either work under the purview of [Special Agent] Campanella or transfer to a less prestigious and less desirable position for the second time in less than a year.” Id. ¶ 33. So she “reluctantly agreed” to transfer. Id. ¶¶ 28-29. HSINET/SharePoint was then headed by Special Agent Dave Bearon, a white man. Compl. ¶ 29.
Brown calls these three events-(1) her first transfer from BEAP to FALCON, (2) her nonselection for acting section chief, and (3) her second transfer from FALCON to HSINET/ SharePoint-“humiliating and damaging” to her professional reputation and “discriminatory.” Compl. ¶ 33.
Brown's retaliation claims rely on the same employment actions discussed above, all of which she says came about because she had engaged in a statutorily protected activity. Brown explains that she engaged in protected activity when she sought to “oppos[e]” Defendant's allegedly unlawful discrimination by filing an “EEO complaint” with the Equal Employment Opportunity Commission (“EEOC”). See Compl. ¶¶ 20, 37. She alleges she “exercised her right to file an EEO complaint” on February 13, 2018. See id. ¶ 20. That is, it appears she made initial contact with the EEOC on that date, but she does not specifically allege that she filed the actual EEO complaint on that date. In any event, the next day, she alleges that she notified her boss, Section Chief Christopher Bracken, that she had started the EEO-complaint process. Id. ¶ 21. And within hours, she alleges, Bracken emailed Brown that she would be transferred: “[W]e plan to have you lateral into the Program Manager duties for the Falcon Role.” Id. Defendant then transferred Brown from BEAP to FALCON on March 20, 2018. Id. ¶ 22. Brown concludes this transfer was “retaliatory.” Id. ¶¶ 21, 33.
But the Complaint leaves out important context reflected in Brown's own EEO complaint.[2] ECF No. 13-3 at 4-7. There, Brown wrote that, on February 8, 2018, Bracken had “informed [Brown]” that she “was being removed” from her program-manager post with BEAP. Id. at 7. Indeed, Brown's impending transfer was the basis of her EEO action. Id. So the email she received from Bracken a week later explaining that Defendant planned “to have [her] lateral,” was not the first time she had been informed of those plans. See Compl. ¶ 21. They were launched no later than February 8, 2018-before Brown contacted the EEOC and notified Bracken that she had begun the EEO complaint process.
Besides her transfer from BEAP to FALCON, Brown claims that her non-selection to acting section chief and later transfer from FALCON to HSINET/SharePoint were also “retaliatory,” Compl. ¶ 32, based on her EEO engagement. She also explains that Defendant retaliated against her by excluding her from meetings, high-level briefings, and significant correspondence related to certain programs, such as FALCON and RAVEn. Id. ¶ 33.
Next, Brown raises a disparate-impact claim. Central to that claim is a distinction between two employee classifications within DHS: 0300 and 1811. Brown's program-manager position fell under the 0300 classification. Compl. ¶ 12. Such positions “require knowledge of the substantive nature of agency programs and activities, agency missions, policies, and objectives, management principles and processes, and the analytical and evaluative methods and techniques for assessing program development or execution and improving organizational effectiveness and efficiency.” Id. ¶ 30. By contrast, Campanella, Teed, and Bearon were classified under 1811. Id. ¶ 29. 1811 employees are “criminal investigators assigned to case work and investigating criminal activity for Homeland Security Investigation[s].” Id. ¶ 12.
Brown's theory for disparate impact rests on Defendant's alleged “discriminatory practice” of “promoting or providing temporary duty assignments to 1811s into lead program manager and supervisory roles in lieu of more qualified 300 series employees,” which disadvantages minority and female employees. Compl. ¶ 13. In particular, Brown says ICE often puts 1811 employees, who are overwhelmingly white men, into positions that should be filled by 0300 employees, who are mainly minority women. Id. ¶¶ 13-15, 17-18. She adds that ICE writes up supervisory positions for 1811s contrary to their “assigned duties,” which precludes 0300 employees from consideration. See id. ¶¶ 13, 17. To support this “systemic problem,” as she calls it, Brown highlights statistics showing that higher GS levels comprise more white men than lower GS levels and that 1811 positions are mainly filled by white men. Id. ¶¶ 14-15. These disparities, she alleges, support the inference that minority women's promotion opportunities are fewer than white men's. Id. She concludes that “these policies and practices have a disparate impact that is discriminatory in effect upon minorities and female employees.” Id. ¶ 13.
Finally, Brown alleges she received less pay than her male colleagues. In particular, she alleges that when she transferred from BEAP to FALCON, the two men, Teed and Campanella, who overtook her BEAP job “would be compensated an additional 25% salary.” Compl. ¶ 23.
She alleges a similar pay disparity occurred at HSINET/SharePoint, where she alleged “she would receive 25% less in income” than Bearon. Id. ¶ 29.
Brown explains that 1811 employees-like Teed, Campanella, and Bearon-are eligible for law enforcement availability pay (“LEAP”), a form of “a premium pay afforded to law enforcement officers or criminal investigators for work or the availability to work substantial amounts of ‘unscheduled' work conducting[] or managing investigations related to alleged or suspected criminal violations of Federal laws.” Compl. ¶¶ 16, 23, 29. And LEAP “entitles the 1811 series to an additional 25% of their original salary.” Id. ¶ 16.
The issue, as Brown sees it, flows again from Defendant's “misuse of job classification.” Compl. ¶ 16. She alleges that “Defendant misclassifies headquarters positions by temporarily assigning, permanently assigning, or promoting employees in the 1811 series into positions where the duties do not involve performing investigations related to specific acts of illegal or...
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