United States District Court, N.D. Alabama, Northeastern Division
TIFFANY D. ATKINS, Plaintiff,
DR. MARK T. ESPER, Secretary of the Army, Defendant.
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
employment discrimination case is before the Court on the
defendant's motion for summary judgment. (Doc. 27).
Plaintiff Tiffany Atkins contends that the defendant, the
United States Army, discriminated against her because she is
African-American and female and retaliated against her after
she reported acts of discrimination. Ms. Atkins asserts Title
VII claims against Dr. Mark T. Esper in his official capacity
as Secretary of the Army. Pursuant to Rule 56 of the Federal
Rules of Civil Procedure, the Army asks the Court to enter
judgment in its favor on all of Ms. Atkins's claims
against it. (Doc. 30).
factual basis for Ms. Atkins's claims concerns the
process for advancement for civilian employees of the Army.
The regulations and evidence relating to that process lie at
the heart of this dispute, and the evidence consists of many
Army acronyms. The Court begins the factual background
section of this opinion with a key for some of the acronyms
that appear repeatedly in the opinion. The Court then
describes the promotion process for civilian employees of the
Army. Finally, the Court identifies the specific facts
pertinent to Ms. Atkins's discrimination claims against
on its review of the evidence in the record, for the reasons
explained below, the Court will enter judgment for the Army
on Ms. Atkins's gender discrimination claim and will deny
the balance of the Army's summary judgment motion.
SUMMARY JUDGMENT STANDARD
court shall grant summary judgment if 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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite "to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials."
Fed.R.Civ.P. 56(c)(1)(A). "The court need consider only
the cited materials, but it may consider other materials in
the record." Fed.R.Civ.P. 56(c)(3).
considering a summary judgment motion, a district court must
view the evidence in the record and draw reasonable
inferences in the light most favorable to the non-moving
party. Asalde v. First Class Parking Sys. LLC, 898
F.3d 1136, 1138 (11th Cir. 2018). "A litigant's
self-serving statements based on personal knowledge or
observation can defeat summary judgment." United
States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018);
see Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013) ("To be sure, Feliciano's
sworn statements are self-serving, but that alone does not
permit us to disregard them at the summary judgment
stage."). The Court does not make credibility
determinations; that is the work of a jury.
Feliciano, 707 F.3d at 1252 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Still,
conclusory statements in a declaration cannot by themselves
create a genuine issue of material fact. See Stein,
881 F.3d at 857 (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990)).
Army submitted 88 paragraphs of "undisputed facts"
in its motion for summary judgment, many of which are
disputed and some of which are conclusory. (Doc. 30, pp.
8-24). The Army filed deposition transcripts, declarations,
and other evidence in support of its version of the facts
concerning Ms. Atkins's employment. (Docs. 28-1 through
28-44). Ms. Atkins submitted a declaration to
"serve as her response to [the Army's] [s]tatement
of undisputed facts." (Doc. 38-1, p. 1). The Court
accepts as true the non-conclusory facts that Ms. Atkins
identified in her declaration. See Stein, 881 F.3d
at 857. See pp. 22-23 below. The Court views all of
the evidence in the record in the light most favorable to Ms.
Atkins, the non-movant.
following acronyms have the following meanings:
CISSP - Certified Information Systems Security Professional
IA - Information Assurance
IAMD - Integrated Air & Missile Defense
IAMD PO - Integrated Air & Missile Defense Project Office
IAM - Information Assurance Manager
IASO - Information Assurance Security Officer
Lead IAM - Lead Information Assurance Manager
PEO M&S - Program Executive Office, Missiles and Space
Advancement Process for Civilian Employees of the
employees of the United States Army may advance through 15
performance levels. "The General Schedule [GS] has 15
grades-GS-1 (lowest) to GS-15 (highest). Agencies establish
(classify) the grade of each job based on the level of
difficulty, responsibility, and qualifications
required." Pay & Leave: General Schedule
Overview, Office of Personnel Management,
le/. Certain civilian positions are designated as career
development series positions. A civilian employee in a
development series position does not have to compete for a
promotion to the next grade in the series. (Doc. 28-1, p.
41). Instead, an agency promotes the employee to the next
grade in the series upon satisfactory performance of the
duties of each grade. (Doc. 28-1, p. 41; Doc. 38-1, p. 2). A
civilian employee may receive a non-competitive grade
promotion every 52 weeks. (Doc. 28-1, p. 41).
civilian employee in a development series position reaches
the highest grade in the performance series, to advance to
the next grade, the employee must either compete for an open
position at a higher grade level or request a desk audit and
demonstrate that she is performing the duties that the agency
classified for the next grade in the schedule. See 5
C.F.R. § 335.103(c)(3)(ii) ("Discretionary Actions.
Agencies may at their discretion except the following actions
from the competitive procedures of this section: . . . (ii) A
promotion resulting from an employee's position being
classified at a higher grade because of additional duties and
responsibilities[.]") (emphasis omitted); Stewart v.
Fed. Commc 'ns Comm'n, 177 F.Supp.3d 158, 175-76
Ms. Atkins's Initial Assignments and Opportunities to
2003, while she attended college, Ms. Atkins began working as
a civilian employee of the United States Army at the Redstone
Arsenal in Huntsville, Alabama. (Doc. 28-1, pp. 31-32). She
served as a GS-1 clerk in a lower tier project office. (Doc.
28-1, p. 31; Doc. 38-1, p. 1). In 2007, she transferred to
the IAMD Project Office of the Program Executive Office,
Missiles & Space (IAMD PEO M&S) as a GS-7 Student
Trainee Program Analyst. (Doc. 28-1, p. 226; Doc. 38-1, p.
2). Shortly afterwards, IAMD promoted Ms. Atkins to GS-9
based on her exceptional performance. (Doc. 38-1, p. 2).
March 2008, Ms. Atkins converted to a Career Conditional
Appointment as a Program Analyst in a GS-9/11/12 development
series position. (Doc. 28-1, p. 221; Doc. 38-1, p. 2). In Ms.
Atkins's position, she could be non-competitively
promoted from GS-9 to GS-11 after successfully performing her
GS-9 duties. (Doc. 28-1, p. 41). She then could be
non-competitively promoted to GS-12 after successfully
performing her GS-11 duties. (Doc. 28-1, p. 41). GS-12 was
the full performance level of Ms. Atkins's developmental
series position. (Doc. 28-1, p. 221). She attained GS-12 in
January 2010. (Doc. 28-1, p. 208; Doc. 38-1, p.
The 2009 Lead Information Assurance Manager
2009, the IAMD PO worked to achieve "Milestone B,"
a component of the IAMD Battle Command System project. (Doc.
30, p. 10, ¶ 13; Doc. 38-1, p. 3). Ms. Atkins was part
of the effort. (Doc. 38-1, p. 3). Officials in Washington,
D.C. sent Ms. Atkins a letter of appreciation for her
performance on Milestone B. (Doc. 38-1, p. 3).
Achord, the Deputy Project Manager at IAMD, needed a Lead
Information Assurance Manager (Lead IAM) for Milestone B to
coordinate the efforts of the government and Northrup
Grummon, the contractor selected for the project. (Doc. 28-3,
p. 19, tp. 72; Doc. 28-5, p. 3, ¶ 11). A Lead IAM has
final authority on Information Assurance decisions and
significant responsibilities and status. (Doc. 38-1, p. 4).
Mr. Achord testified that the Lead IAM is the "focal
point" for IA matters. (Doc. 28-3, p. 20, tp. 76).
Patricia Long, who served for a period of time as the Lead
IAM in the IAMD PO, testified that the Lead IAM
"oversees the efforts of the government and contractor
team to ensure that the product is secure to the best cyber
security perspective." (Doc. 28-4, p. 124). Jeffrey
Stevens, Ms. Atkins's first-level supervisor, stated that
the "[designation as the Lead IAM is a title only. It
does not confer any promotion or increase in pay or benefits.
It simply designates the person who will have final authority
on (i.e., has ultimate responsibility for) Information
Assurance (IA) issues." (Doc. 28-6, pp. 1-2, ¶ 6).
IAMD was responsible for a number of systems in addition to
the Battle Command System, and the Lead IAM for each system
was GS-13 or higher. (Doc. 38-1, p. 4).
Kris Clark served as the Lead IAM for Milestone B. (Doc.
38-1, p. 5). In June 2009, after Mr. Clark left the Lead IAM
position, Charley Robinson, the IAMD Systems Engineering
Director, and Tammy Still, the Software Division Chief for
IAMD, recommended Ms. Atkins to Mr. Achord for the position.
(Doc. 28-3, p. 11, tp. 37; Doc. 28-3, p. 15, tp. 54; Doc.
38-1, pp. 3-4). In response to the recommendation, Mr. Achord
asked "how long he [could] wait" to fill the
vacancy. (Doc. 28-3, p. 20, tpp. 74-75; Doc. 38-1, p. 4). At
the time, Mr. Achord was considering Ms. Long for the
position. (Doc. 28-3, p. 13, tp. 46).
November 2009, IAMD appointed Ms. Long, who is white, as Lead
IAM. (Doc. 38-1, p. 4). Ms. Long had not worked on the
Milestone B project; she was new to the project when she took
the Lead IAM position. (Doc. 38-1, p. 4).
Ms. Atkins's CISSP and Title Reassignment
2010, Ms. Atkins received her Certified Information Systems
Security Professional (CISSP) certification. (Doc. 38-1, p.
5). In support of Ms. Atkins's CISSP application, Ms.
Long wrote an endorsement letter in which Ms. Long stated
that Ms. Atkins had performed Lead IAM duties for 33 months,
had good character and reputation, and could render
professional service without supervision. (Doc. 38-1, p. 5).
In recognition of her CISSP and other contributions, Ms.
Atkins received a $2, 000 Individual Cash Award. (Doc. 38-1,
2010, Ms. Atkins's title changed from "Program
Analyst" to "Information Assurance Manager"
because she received her CISSP certification and performed IA
duties while supporting Ms. Long as the Lead IAM. (Doc. 28-1,
pp. 59, 207; see Doc. 28-24; Doc. 28-43, p. 18). Ms.
Atkins remained a GS-12 after the title change. (Doc. 28-1,
pp. 58, 207). Ms. Atkins and one other African-American
female were the only employees in PEO M&S who were not
GS-13 or higher. (Doc. 38-1, p. 5).
The December 8, 2010 Email
early December 2010, Ms. Long met with Mr. Stevens to discuss
a plan to develop Ms. Atkins towards GS-13 and the Lead IAM
appointment. (Doc. 28-6, p. 2, ¶ 12; Doc. 38-1, pp.
5-6). On December 8, 2010, Ms. Long sent Mr. Stevens an email
about Ms. Atkins's development plan. (Doc. 28-31). In the
email, Ms. Long stated in part:
[Ms. Atkins] needs, wants and deserves more responsibility. I
don't know if that is the plan with the promotion or not
but she needs to be able to spread her wings a bit. I think
the promotion to GS13 will provide a platform for her to do
that and in my opinion will go a long way toward encouraging
her to stay here at IAMD. Now that she will soon be a GS13,
my suggestion is that we consider working toward a plan to
make her the IASO/IA lead by this time next year. Note that
quite a few project offices have GS13's as the IASO.
(Doc. 28-31, pp. 1-2). In the lengthy email, Ms. Long
expressed her full support for Ms. Atkins advancing and
becoming Lead IAM. (Doc. 28-1, pp. 1-2). Mr. Stevens
responded, "I think your overall plan sounds great. Also
discussed with Mike [Achord] and he's on board."
(Doc. 28-31, p. 1). Ms. Long forwarded the email to Ms.
Atkins and let Ms. Atkins know that a meeting with Mr.
Stevens would be arranged. (Doc. 28-31, p. 1).
Long planned to transfer IA duties to Ms. Atkins so that Ms.
Atkins could become Lead IAM by December 2011. (Doc. 38-1,
pp. 5-6). The development plan was a "phased-in approach
whereby [Ms. Atkins] would assume increasing
responsibilities." (Doc. 38-1, p. 6) (internal quotation
the December 2010 email, the Army contends that beginning in
2010, Ms. Atkins became hostile to Ms. Long, but Ms. Long
kept the problem to herself. (Doc. 30, pp. 14-15). The Army
asserts that by the end of 2010, others at IAMD had begun to
notice "problems" with Ms. Atkins's
"interpersonal skills and decision-making." (Doc.
30, p. 15). Robert Thomas, the project manager for the IAMD
PO, ultimately concluded that Ms. Atkins "lacked the
professional judgment and practical analysis needed to move
projects forward while maintaining IA integrity." (Doc.
28-5, p. 4, ¶ 20). For her part, Ms. Atkins contends
that she raised legitimate concerns about the performance of
the Milestone B program, concerns that Mr. Achord shared.
(Doc. 38-1, p. 6). Mr. Achord acknowledges that there were
flaws in the contractor's performance on Milestone B, and
"several individuals within the project office"
thought, like Ms. Atkins, that documents that the contractor
submitted should be rejected, but Mr. Thomas opted to approve
the documents with comments so that the project could move
forward. (Doc. 28-3, p. 18, tpp. 67-68). Other than the
disagreement regarding the contractor's documentation of
its work, Mr. Achord was not aware of other concerns about
Ms. Atkins's job performance. (Doc. 28-3, pp. 18-19, tpp.
Ms. Atkins's Union Grievances
2011, Ms. Atkins filed a First Step Union Grievance. (Doc.
38-1, p. 7). In the grievance, Ms. Atkins alleged that Ms.
Long was racially hostile, that Ms. Long pushed Ms. Atkins
out of IA duties, that IAMD management attempted to cover up
contract breaches, and that IAMD did not promote
African-American employees above GS-12. (Doc. 28-12; Doc.
38-1, p. 7). As relief, Ms. Atkins sought designation as Lead
IAM and the removal of Ms. Long. (Doc. 28-12). The IAMD