Duncan v. Johnson, 213 F. Supp. 3d 161

Background

Duncan, a 56-year-old GS-15 Supervisory Intelligence Research Specialist at ICE (DHS), worked under Stephanie Andrews after an October 2011 reassignment; he never applied for the advertised DAD of Analysis position that Andrews filled.
Beginning April–May 2012 Andrews issued a letter of counseling, a mid-cycle negative review, and a 60-day PIP; Duncan failed the PIP but suffered no immediate adverse sanction from it.
In June 2012 Duncan received a three-day suspension for failing to ensure timely completion of a time-sensitive assignment; a DAAP panel recommended five days and the deciding official mitigated to three.
In late 2012/Jan. 2013 a DAAP panel recommended a 14-day suspension (sustaining some misconduct findings); the deciding official mitigated to seven days. Duncan’s security clearance was temporarily suspended for investigation and later reinstated.
Duncan filed informal EEO contact May 11, 2012 and a formal complaint Nov. 30, 2012 alleging age and sex discrimination and retaliation; he sued DHS in Oct. 2014 alleging ADEA and Title VII discrimination and Title VII retaliation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether several challenged acts were administratively exhausted	Duncan contends some events were investigated or timely raised; later submissions sought to add issues	DHS argues many discrete acts were not raised within regulatory time limits	Court dismissed the 2011 reassignment claim for failure to exhaust; treated some suspensions as exhausted or assumed exhaustion where agency investigated; other later acts not exhausted
Whether complained acts amount to adverse employment actions for discrimination claims	Duncan treats PIP, mid-cycle review, non-selection, security-clearance suspension, suspensions, and reassignment as adverse	DHS contends some (mid-cycle review, PIP failure, lateral non-selection where Duncan never applied, reassignment without grade/pay change) are not materially adverse	Court: mid-cycle review and PIP failure are not materially adverse; non-selection not applied-for so no cognizable denial; reassignment without loss of grade/pay not actionable; suspensions and security-clearance limitation are adverse and considered on merits
Whether DHS discriminated (age/sex)	Duncan points to Andrews being younger/female and adverse treatment after she became supervisor; alleges disparate treatment	DHS proffers legitimate, non‑discriminatory reasons (poor performance, AWOL, misrepresentations, unprofessional conduct)	Court: no direct evidence of age/sex animus and Duncan failed to show pretext or similarly situated comparators; summary judgment for DHS on ADEA and Title VII discrimination counts
Whether DHS retaliated for EEO activity	Duncan argues discipline and adverse actions followed his EEO contact and formal complaint and thus were retaliatory; invokes cat’s‑paw theory for Andrews’ influence	DHS shows independent review process (ELR, DAAP panel, deciding officials) and legitimate non‑retaliatory reasons; stresses lack of knowledge by final decisionmakers and absence of but‑for causation	Court: PIP not materially adverse for retaliation; three‑day and seven‑day suspensions, clearance limitation, and reassignment considered but Duncan failed to show but‑for causation or pretext; cat’s‑paw causation attenuated by independent reviews; summary judgment for DHS on retaliation count

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden allocation)
Anderson v. Liberty Lobby, 477 U.S. 242 (genuine dispute / materiality standard)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for circumstantial discrimination evidence)
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (retaliation adverse‑action standard)
Nassar v. Univ. of Tex. Sw. Med. Ctr., 133 S. Ct. 2517 (but‑for causation for retaliation)
Staub v. Proctor Hosp., 562 U.S. 411 ("cat’s‑paw" theory / proximate‑cause causation)
Egan, Dep’t of Navy v. Egan, 484 U.S. 518 (limits on judicial review of security‑clearance decisions)
Ryan v. Reno, 168 F.3d 520 (D.C. Cir. on clearance revocation and review limits)
Rattigan v. Holder, 689 F.3d 764 (distinguishing reporting‑employee referrals to security from Security Division clearance decisions)