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Atkins v. McHugh

United States District Court, N.D. Alabama, Northeastern Division

January 14, 2019

DR. MARK T. ESPER, Secretary of the Army, Defendant.



         This 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.[1] 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).

         The 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 the Army.

         Based 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.


         "The 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).

         When 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)).

         The 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).[2] 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.


         A. Army Acronyms

         The 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

         B. Advancement Process for Civilian Employees of the Army

         Civilian 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).

         When a 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 (D.D.C. 2016).

         C. Ms. Atkins's Initial Assignments and Opportunities to Advance

         In 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).

         In 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. 2).[3]

         D. The 2009 Lead Information Assurance Manager Appointment

         In 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).

         Mike 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).[4] 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).

         Initially, 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).

         In 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).[5]

         E. Ms. Atkins's CISSP and Title Reassignment

         In June 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, p. 5).

         In July 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).

         F. The December 8, 2010 Email

         In 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).

         Ms. 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 marks omitted).

         Notwithstanding 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. 65-69).

         G. Ms. Atkins's Union Grievances

         In July 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 ...

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