United States District Court, E.D. Virginia, Alexandria Division
Mark A. Livingston., Plaintiff,
Kirstjen M. Nielsen, Secretary, United States Department of Homeland Security, Defendant.
O'GRADY, UNITED STATES DISTRICT JUDGE.
Order dated October 23, 2018, the Court granted
Defendant's Motion in Limine to Exclude Certain Evidence
Relating to Joseph Salvator. See Dkt. 129. This
memorandum opinion accompanies that Order.
Livingston is a former member of the Transportation Senior
Executive Service ("TSES") at the Transportation
Security Administration ("TSA"). Mr. Livingston
began working at TSA in April 2013 as a K-band Program
Manager and was promoted to Acting Deputy Assistant
Administrator at the Office of Intelligence and Analysis
("OIA") in August 2013. In December 2013, Mr.
Livingston was named Deputy Assistant Administrator
("Deputy AA") of the OIA, subject to a one-year
probationary period. As a probationary employee, Mr.
Livingston could be removed through a one-step process for
"unacceptable performance." In his position as
Deputy AA, Mr. Livingston was directly supervised by Mr.
Sadler, who served as the Assistant Administrator
("AA") of the OIA at that time.
October 2, 2014, the Executive Resources Council
("ERC") met to discuss Mr. Livingston's
probationary period, which would not end for another two
months. The ERC is composed of senior-level TSA employees and
its primary role is to evaluate employees' performance,
though the ERC can also consider allegations of employee
misconduct. At the October 2 meeting, the ERC discussed Mr.
Livingston's alleged leadership deficiencies and the
results of a morale survey. At the time of the ERC meeting,
allegations of misconduct had also been raised against Mr.
Livingston including allegations that Mr. Livingston had
engaged in: hazing, bullying, inappropriate comments,
retaliation, and cronyism in hiring and
promotion.The ERC unanimously voted to remove and
demote Mr. Livingston during the meeting; Mr. Livingston was
demoted to a non-TSES Program Specialist position in the
Office of Chief Risk Officer with a decrease in salary. The
record contains conflicting evidence as to the basis of that
decision, and the parties dispute whether the ERC factored
the allegations of misconduct into its decision.
Livingston has brought several claims of discrimination
against TSA for his demotion and his work environment.
Relevant to the present motion, Mr. Livingston alleges that
he was subject to disparate treatment than other employees in
both the way in which he was demoted - through the ERC - and
the severity of his demotion. In particular, Mr. Livingston
expressed his intent to call Mr. Salvator, a fellow former
TSES employee who was also demoted, as a comparator witness
to support his disparate treatment claim.
time of his demotion, Mr. Salvator was a TSES employee who
replaced Mr. Sadler as the AA of the OIA. Mr. Salvator was a
"career" TSA employee and had successfully
completed his probationary period nine years prior. Mr.
Salvator was demoted by the Office of Professional
Responsibility ("OPR") for misconduct. The OPR,
whose membership does not overlap with ERC, is primarily
responsible for addressing allegations of misconduct for
certain employees, though it can also consider allegations of
deficient performance. Mr. Salvator faced misconduct
allegations regarding inappropriate relationships,
unprofessional conduct, and lack of candor. After an
investigation into his misconduct was completed, Mr. Salvator
was sent a Notice of Proposed Removal. Mr. Salvator would
then have had the opportunity to present counter-evidence to
the deciding official, but instead accepted a favorable
settlement offer. As part of the settlement offer, Mr.
Salvator was demoted to the non-TSES position of Deputy
Director of Security Operations but kept the same salary.
filed a Motion in Limine to exclude evidence regarding Mr.
Salvator's demotion at trial, arguing that Mr. Livingston
has failed to establish that Mr. Salvator is a valid
comparator. The motion was fully briefed, and the Court heard
oral argument on October 19, 2018. For the reasons stated
below, and for good cause shown, the Court granted
Defendant's motion on October 23, 2018.
establish Mr. Salvator as a valid comparator, Plaintiff must
show that he and Mr. Salvator "are similar in all
relevant respects." Haywood v. Locke, 387
Fed.Appx. 355, 359 (4th Cir. 2010). This showing requires
evidence that the Plaintiff and his purported comparator (1)
"dealt with the same supervisor," (2) were
"subject to the same standards," and (3)
"engaged in the same conduct without such
differentiating or mitigating circumstances that would
distinguish their conduct or the employer's treatment of
them for it." Id. (quoting Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). This
list is not a "magic formula," and ultimately the
valid comparator determination should be based on a flexible,
common-sense evaluation of all the relevant factors.
Coleman v. Donahoe, 667 F.3d 835, 846-47 (7th Cir.
2012). To find that a person is a valid comparator, however,
ultimately there must be "enough common features between
the individuals to allow [for] a meaningful comparison."
Haywood, 387 Fed.Appx. at 360 (quoting Humphries
v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007))
(alteration in original).
first factor to consider in determining whether Mr. Salvator
is a valid comparator is whether he and Mr. Livingston
"dealt with the same supervisor." Id. at
359. Despite the terminology ascribed to this factor, the
relevant inquiry is not whether Mr. Livingston and Mr.
Salvator dealt with the same direct supervisor, but rather
whether they were treated differently by the same
decisionmaker. Coleman, 667 F.3d at 848. Here, not
only did Mr. Livingston and Mr. Salvator have different
direct supervisors, but their adverse employment actions also
came from different decisionmakers: Mr. Livingston was
demoted by the ERC and Mr. Salvator was demoted by the OPR.
Mr. Livingston argues this factor should not affect the valid
comparator analysis because the fact that he and Mr. Salvator
were demoted by different bodies is an example of how
Defendant subjected Mr. Livingston to disparate treatment.
However, the differences in Mr. Livingston's and Mr.
Salvator's alleged conduct and probationary status (see
infra) can explain why different bodies made the
decisions about each employee. As a result, the fact that Mr.
Livingston and Mr. Salvator were demoted by different
decision-making bodies is evidence that Mr. Salvator is not a
second factor to consider in determining whether Mr. Salvator
is a valid comparator is whether Mr. Livingston and Mr.
Salvator were subject to the same standards.
Haywood, 387 Fed.Appx. at 359. Mr. Livingston and
Mr. Salvator were both members of the TSES, and their job
title within TSES differed only in that Mr. Livingston was a
Deputy AA while Mr. Salvator was an AA. Given their similar
leadership positions, both Mr. Salvator and Mr. Livingston
were subject to the same standards of conduct. Importantly,
however, Mr. Livingston was in his probationary period while
Mr. Salvator was a career employee. As a result, the
standards governing demotions of Mr. Livingston were
different, and much lower, than the standards governing
demotions of Mr. Salvator. As noted by Defendant, many cases
have held that a probationary employee is not similarly
situated to a non-probationary employee. See, e.g.,
Morrall v. Gates, 370 Fed.Appx. 396, 398 n.1 (4th Cir.
2010); Yeboah-Kankam v. Prince William Cty. Sch Bd,
2017 WL 6758449, at *9 (E.D. Va. Dec. 29, 2017) (Brinkema,
J.); Linton v. Carter, 2015 WL 4937447, at *6 (E.D.
Va. Aug. 18, 2015) (O'Grady, J.). Hence, Mr.
Livingston's status as a probationary employee is a
distinguishing factor that could explain TSA's different
treatment of Mr. Livingston and Mr. Salvator, undermining Mr.
Livingston's claim that Mr. Salvator is a valid
third and final factor in determining whether Mr. Salvator is
a valid comparator is whether he and Mr. Livingston engaged
in the "same conduct" without differentiating or
mitigating circumstances that would distinguish either their
conduct or their employer's response to it.
Haywood, 387 Fed.Appx. at 359. Mr. Salvator was
demoted for engaging in misconduct. While the parties dispute
whether the ERC considered the unsubstantiated allegations of
similar misconduct made against Mr. Livingston in making its
decision to demote him, it is significant that Mr.
Livingston, unlike Mr. Salvator, also faced charges of
performance deficiencies. The alleged performance
deficiencies of Mr. Livingston could explain both the
difference in the ...