Drielak v. McCarthy

• Decision Date: 19 September 2016
• Docket Number: Case No. 1:14-cv-01088 (CRC)
• Parties: Steven C. DRIELAK, Plaintiff, v. Regina MCCARTHY, Administrator of the Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of Columbia

209 F.Supp.3d 230

Steven C. DRIELAK, Plaintiff,

v.Regina MCCARTHY, Administrator of the Environmental Protection Agency, Defendant.

Case No. 1:14-cv-01088 (CRC)

United States District Court, District of Columbia.

Signed September 19, 2016

Michael C. Fallings, Morris Eli Fischer, Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Benton Gregory Peterson, Heather D. Graham-Oliver, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Plaintiff Steven Drielak, a veteran manager in the Environmental Protection Agency's criminal enforcement office, sued the agency for employment discrimination and retaliation. He claims he was passed over for a series of promotions and excluded from participating in various meetings and projects due to his age. He also contends that four of his agents were reassigned, and that he was denied further promotions, in retaliation for having filed a discrimination claim with the agency. The EPA has moved for summary judgment on both sets of claims. Finding that Drielak did not administratively exhaust his non-selection claims and that his exclusion from meetings and projects did not constitute materially adverse employment actions, the Court will grant summary judgment in favor of the agency on Drielak's age discrimination claims. And because Drielak has presented insufficient evidence to establish that the staff reassignments and later non-selections were motivated by retaliatory intent, the Court will grant summary judgment to the EPA on his retaliation claims as well. The case is thus dismissed in its entirety.

I. Background

A. Factual Background

The EPA—through its Office of Criminal Enforcement, Forensics, and Training ("OCEFT")—investigates violations of federal environmental laws. Def.'s Statement of Undisputed Material Facts ("DSOF") ¶ 1. The agency hired Steven Drielak in 2003 as a GS-14-level law enforcement specialist within OCEFT. Id. Fifty years old at the time he was hired, Drielak had close to thirty years of law enforcement experience when he joined the EPA. Compl. ¶¶ 6–7, 10.

Drielak's tenure got off to a promising enough start. From 2003 to 2010, he climbed the agency's ranks and held various management positions, including Supervisory Program Manager, Supervisory Criminal Investigator, and eventually Director of the Homeland Security Division. DSOF ¶¶ 2, 4, 7. So valued was Drielak that the agency waived its maximum entry age of 37 for enforcement positions to enable him to become a Supervisory Criminal Investigator. Id. ¶ 2.

In 2010, however, Drielak's career progression began to stall. The agency attributes this plateau to a major reorganization of the enforcement office. In anticipation of this restructuring, the EPA eliminated the Homeland Security Division—which Drielak led at the time—and relocated its employees to other areas of the agency. Id. ¶¶ 10–12. OCEFT's then-Director, Fred Burnside, reassigned Drielak to lead the Field Operations Program. His primary responsibilities included managing the staff who collected evidence for OCEFT's Criminal Investigation Division; supervising the National Criminal Enforcement Response Team ("NCERT"), a group of agents who respond to national emergencies involving hazardous materials; and overseeing the Protective Services Detail, which provides security to EPA employees during site visits and protects the Administrator. Id. ¶¶ 15–18.

In July 2011, the EPA named Henry Barnet as the new OCEFT Director, id. ¶ 22, and, six months later, named Matthew Morrison as OCEFT's Deputy Director, id. ¶ 32. Both Barnet and Morrison supervised Drielak in his position as the Director of the Field Operations Program until Drielak left the agency in March 2015.¹ DSOF ¶ 84. Contrary to the EPA's explanation for his lack of advancement after 2010, Drielak blames allegedly discriminatory and retaliatory personnel actions taken by his new supervisors and other agency officials. The following paragraphs detail the incidents that form the basis of Drielak's lawsuit.

1. Non-Selections in 2010–2012

Between March 2010 and September 2011, the agency selected five temporary OCEFT Acting Deputy Directors for successive three-month appointments. Compl. ¶¶ 16–25. Drielak applied but the agency selected a younger candidate each time. Id. OCEFT Administrators Cynthia Giles and Catherine McCabe selected the directors through a non-competitive, informal process. DSOF ¶¶ 25–26. In late 2011, Drielak applied to be the permanent Director of the Criminal Investigations Division through a competitive process. Id. ¶ 29. He made the short list of best qualified candidates, Compl. ¶ 55, but was not interviewed, DSOF ¶ 27. Dissatisfied with the quality of the candidates, Director Barnet left the position unfilled. DSOF ¶ 30. In January and April 2012, Drielak was not selected to serve as the temporary Acting Director of the Criminal Investigations Division. Id. ¶ 33. When the agency again announced an opening to be the permanent Director of the Criminal Investigations Division in May 2012, Drielak did not apply. Compl. ¶ 58.

2. Exclusion from Meetings and Assignments

According to Drielak, from 2011 to 2012, he was excluded from a number of meetings and discussions regarding programs under his direct management. Compl. ¶ 27. He points to: (1) a June 2012 meeting between Deputy Director Morrison and representatives from the Office of Solid Waste and Emergency Response, where Drielak alleges NCERT was discussed; (2) a July 2012 meeting about NCERT between Directors Barnet and Morrison and managers within the Criminal Investigations Division; and (3) a series of discussions in late 2012 regarding OCEFT reorganization proposals that contemplated eliminating the Field Operations Program director position. Compl. ¶¶ 26–27, 36–37, 40, 50, 53. Drielak also complains that preparation of an August 2012 briefing paper on NCERT was assigned to one of his subordinates instead of him. The EPA does not dispute that Drielak did not attend every meeting where one of his programs may have been discussed. Rather, the agency stresses that many of these meetings occurred among higher-level management, and that OCEFT generally involved Drielak in discussions and emails about the ongoing reorganization. Def.'s MSJ 20–21; see also Def.'s MSJ Ex. 9–11, 13–14, 17. The EPA points out, for example, that Deputy Director Morrison emailed Drielak directly to solicit his input on the NCERT briefing paper noted above and to ask him to participate in its presentation. DSOF ¶ 67.

3. Performance Evaluations

Drielak's supervisors rated his annual performance by using the Performance Appraisal and Recognition System ("PARS"). Under PARS, employees are awarded the following ratings in order of excellence: Unsatisfactory, Minimally Satisfactory, Fully Successful, Exceeds Expectations, and Outstanding. An Outstanding rating is defined as "reserved for the truly exemplary employee who demonstrates the highest degree of achievement," while as an Exceeds Expectations "signifies that the results achieved are clearly beyond what could be reasonably expected." Def.'s MSJ Ex. RIO-19. The overall rating averages individual ratings across four critical elements. Based on these parameters, former OCEFT Director Burnside awarded Drielak an "Outstanding" overall rating for his performance during the October 2009 to September 2010 performance period. Id. Burnside rated Drielak as Outstanding on three of the four critical elements and as Exceeds Expectations on the remaining critical element. Id. For the October 2010 to September 2011 performance period, current OCEFT Director Barnet evaluated Drielak's overall performance as "Exceeds Expectations." Id. He was rated as Exceeds Expectations on three of the critical elements and as Outstanding on the remaining element. Id. Drielak complains that the 2011 Exceeds Expectations rating was lower than what he deserved. Compl. ¶ 66. For the 2012 and 2013 performance periods, Barnet rated Drielak as Outstanding and as Exceeds Expectations respectively. DSOF ¶¶ 73, 77.

4. Reassignments and Non-Selections in 2014

Drielak supervised twelve special agents in the Field Operations Program. DSOF ¶ 80. In April 2014, Director Barnet reassigned four of these agents to the Criminal Investigations Division. Id. That same month, a special agent—who had been under the command of a 40-year-old OCEFT Director—was also reassigned to the Criminal Investigations Division. See DSOF ¶ 82; Def.'s MSJ 26. Six months earlier, a special agent from another OCEFT office had also been moved to the Criminal Investigations Division. Def.'s MSJ 26. Barnet attributed the transfers to the fact that the Criminal Investigations Division was "at or very close to a 10 year low for [its] special agent population," and explained that a larger staff was needed for casework. Def.'s MSJ Ex. RIO-2014-B. After Drielak retired in March, the agency continued realigning personnel, transferring the entire NCERT team and all of the Field Operation Program's remaining special agents to the Criminal Investigation Division in June 2015. DSOF ¶¶ 86–87. Drielak states that he applied to other agency positions in 2014 but was not selected because he had to report that his program was decimated. Compl. ¶ 79. Agency records show, however, that Drielak last applied for a position in 2012. DSOF ¶ 88.

5. EEO Administrative Proceedings

Drielak first contacted an EPA Equal Employment Opportunity ("EEO") counselor on August 22, 2012. DSOF ¶ 62. On December 4, 2012, he lodged his first official EEO Complaint with the EPA's Office of Civil Rights ("OCR"). Def.'s MSJ Ex. 26. Drielak alleged, in 16 numbered claims, that he suffered from workplace harassment and disparate treatment. Id. The OCR decided to investigate seven of his disparate treatment claims, but it rejected the rest as either untimely—because the alleged incident occurred more than 45 days prior to initial EEO contact, see...