Jimenez v. Mayorkas

• Decision Date: 01 March 2022
• Docket Number: 17-cv-2731 (CRC)
• Parties: ROLANDO JIMENEZ, Plaintiff, v. ALEJANDRO MAYORKAS, Defendant.
• Court: U.S. District Court — District of Columbia

ROLANDO JIMENEZ, Plaintiff,
v.
ALEJANDRO MAYORKAS, Defendant.

No. 17-cv-2731 (CRC)

United States District Court, District of Columbia

March 1, 2022

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

Plaintiff Rolando Jimenez is currently employed as an Immigration Officer in the Immigrant Investor Program Office within the Department of Homeland Security (“DHS”). PSOMF ¶ 2. Jimenez alleges that his superiors at the agency discriminated against him on the basis of his race, age, and national origin, and retaliated against him for filing EEO complaints.

The Court previously dismissed many of Mr. Jimenez's claims for either failure to exhaust administrative remedies or failure to state a claim. Jimenez v. McAleenan, 395 F.Supp.3d 22 (D.D.C. 2019) (Jimenez I). The Court also granted summary judgment to DHS on Jimenez's claims that the agency passed him over for numerous positions for discriminatory or retaliatory reasons. Jimenez v. Wolf, No. 17-CV-2731 (CRC), 2020 WL 12895803 (D.D.C. Sept. 24, 2020) (Jimenez II). This left one claim standing: that in 2015, Jimenez's supervisors denied his request to access to the Homeland Security Data Network (“HSDN”)-an agency information system used to share sensitive information-in retaliation for his earlier EEO complaints. Am. Compl. ¶¶ 82-89.

The parties have engaged in discovery related to this final claim. The government now moves for summary judgment. Finding no genuine dispute of material fact, the Court will grant the motion.

1

I. Background

Rolando Jimenez began working for the predecessor agency of the U.S. Citizenship and Immigration Services (“USCIS”) in 1996. From 2006 to October 2016, Jimenez was an Immigration Officer in the National Security Branch/Division of the Fraud Detection National Security Directorate (“FDNS”) of USCIS. Plaintiff's Statement of Material Facts (“PSOMF”), ECF No. 66-1, at ¶ 1. FDNS's mission is to determine whether individuals and organizations applying for immigration benefits might pose a national security risk. PSMOF ¶ 3.

Given their national security implications, FDNS cases sometimes involved classified information. One of the systems used in DHS to store and share such information (up to the “secret” level) is the Homeland Security Data Network (“HSDN”). PSMOF ¶ 5. To be granted access to HSDN-or any classified records system-an employee must have (i) the appropriate level of security clearance, (ii) a current or imminent “need to know, ” and (iii) the ability to safeguard the accessed information. PSMOF ¶ 4. Jimenez was granted access to HSDN in 2012 due to his work responsibilities. Plaintiff's Opp. at 3, ECF No. 66.

In 2014, Jimenez began a two-year temporary detail with INTERPOL. While on detail, his access to HSDN was automatically suspended because he had not logged into the system in 30 days. Opp. at 1-2; DSMOF at ¶ 3 n.2. In 2015, Jimenez's INTERPOL detail was abruptly terminated (approximately 15 months early) and he returned to his job at FDNS on June 17, 2015. PSMOF at ¶¶ 4-6. The record indicates Mr. Jimenez's detail was terminated early because of a concern that he violated INTERPOL's policy on dissemination of sensitive information. PSMOF ¶ 18; Def's Ex. 10 (email from Bernard Graham).

From August 2015 to October 2016, Jimenez continued to work on immigration cases for FDNS. During this time, Michael Tennyson, FDNS's Case Resolution Branch Chief, and

2

Matthew Mooney, the Deputy Chief, were giving Jimenez his work assignments instead of his usual supervisor, Shari Golston. PSOMF ¶ 7. Jimenez's assignments included “reviewing draft policies, performing security checks for certain immigration benefit cases . . . and performing work for FDNS's Senior Leadership Review Board (‘SLRB').” Id.^[1] In addition to those duties, Tennyson asked Jimenez to attend the SLRB meetings, take notes at those meetings, and look at the cases under review “from an immigration officer perspective.” Id. Tennyson explained that this meant reviewing the cases to find immigration violations without regard to classified information. Def's Ex. 7 at 40, 44 (Tennyson Dep.), ECF No. 62-3.

About two weeks after Jimenez returned to work for FDNS, he submitted a form to his supervisor Shari Golston asking that his access to HSDN be restored. PSOMF ¶ 19. After receiving Jimenez's request, Golston emailed Tennyson to ask whether Jimenez's current work assignments required HSDN access. PSOMF ¶ 21. Tennyson responded a few minutes later saying that Jimenez's work did not require HSDN access. PSOMF ¶ 22; Def's Ex. 12 (email exchange). Golston relayed that conclusion to Jimenez. PSOMF ¶ 23. Jimenez replied, stating that he did in fact need HSDN access to review classified information. PSOMF ¶ 24. Matt O'Brien, Chief of the National Security Division of FDNS and Jimenez's second-line supervisor, was added to the email chain. Def's Ex. 11; PSOMF ¶ 25. O'Brien replied to all, writing, “Rolando . . . Your current assignment does not require access to the HSDN. Accordingly, your request is denied.” Id.

3

In addition to believing that Jimenez's work assignment did not require HSDN access, O'Brien had also been advised by his supervisor-Matthew Emrich, the FDNS Deputy Associate Director-that because of INTERPOL's ongoing investigation into Jimenez's possible misconduct, he was not to be “given access to any data systems to which he did not already have access” PSOMF ¶ 18; Def's Ex. 2 (O'Brien Responses); Def's Ex. 10 (email from Bernard Graham at INTERPOL).

Jimenez's evaluations for both FY 2015 and 2016 were positive. In both years, he achieved the highest overall rating available-“Achieved Excellence.” PSOMF ¶¶ 28, 30. In his self-assessment for FY 2015, Jimenez offered no indication that his lack of HSDN access inhibited his ability to complete his work. PSOMF ¶ 26. His self-assessment for FY 2016 likewise failed to suggest that he needed HSDN access to complete his assignments. PSMOF ¶ 27. Aside from Jimenez's first request for HSDN access in August 2015, the record contains no emails or other correspondence from Jimenez to his supervisors informing them that lack of access was impeding his ability to complete his work assignments. PSMOF ¶¶ 24, 26, 27.

In October 2016, Jimenez began working as an Immigration Officer in DHS's Immigrant Investor Program Office, the position he currently holds. PSOMF ¶ 2. Jimenez agrees that he no longer needed HSDN following the transfer. PSMOF ¶ 12.

II. Legal Standards

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 dispute is “genuine” if a reasonable factfinder could find for the non-moving party, and a fact is “material” if it can affect the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A dispute about a material fact is not ‘genuine' unless

4

‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014) (quoting Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010)). Mere speculation is insufficient to defeat summary judgment. Morris v. McCarthy, 825 F.3d 658, 674 (D.C. Cir. 2016); see Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (stating that conclusory assertions and unsubstantiated allegations do not establish genuine issue of fact).

“[R]etaliation claims are subject to the familiar, burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). “First, a plaintiff must establish a prima facie case of retaliation; if she meets that burden, the employer must articulate a legitimate nonretaliatory reason for its action; finally, the plaintiff has the ultimate burden of establishing that the reason asserted by the employer is pretext for retaliation.” Holcomb v. Powell, 433 F.3d 889, 901 (D.C. Cir. 2006).

III. Analysis

A. Jimenez Has Not Established A Prima Facie Case of Retaliation

Jimenez contends that the decision to deny his request for HSDN access was a reprisal for his earlier protected EEO activity. In particular, Jimenez filed an EEO Complaint against his supervisor, Shari Golston, in April 2015, while he was still on INTERPOL detail. Opp. at 4.

Jimenez argues that O'Brien's denial of his request to access HSDN in August 2015-nearly four months later-was retaliation for his filing of this complaint against Golston. Opp. at 2.

Jimenez cannot survive summary judgment on this claim because he cannot establish that the denial of HSDN access was a materially adverse action.

To make out a prima facie case of retaliation, the plaintiff must establish that he “[1] engaged in activity protected by Title VII; (2) the employer took an adverse employment action

5

against her; and (3) the adverse action was causally related to the exercise of her rights.” Holcomb, 433 F.3d at 901-02. “With respect to the third...