Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D.D.C.: Black USDA employee failed to show demotion months after her promotion was due to her race, (Jun 13, 2025)

By Kathleen Kapusta, J.D.

The employee argued that the agency promoted her because it needed a Black supervisor to stand as a “buffer” between it and a Black subordinate’s race discrimination complaints.

An African-American Department of Agriculture employee, who alleged she was told not to accept a supervisory position because she was “being set up to fail,” was unable to show her demotion to a nonsupervisory position less than a year later was based on her race, a federal court in the District of Columbia ruled, granting summary judgment against her Title VII claim. Nor could she advance her claim she was demoted in retaliation for filing an EEO complaint. However, her claim she was denied the opportunity to attend the Blacks in Government (BIG) Conference because she filed the complaint survived the government’s motion (Kennedy v. Vilsack, No. 16-cv-2176 (JMC) (D.D.C. Jun. 12, 2025)).

After six years as an administrative support assistant with the USDA, the employee was promoted, in June 2013, to a supervisory position. After accepting the job, she participated in a week-long mandatory training for new supervisors during which, she claimed, she was told by an African-American supervisor not to accept the new position because was being set up to fail.

Difficult. In her new role, the employee supervised five individuals, including an African-American woman whom, the employee alleged, was difficult. For her part, the supervisee complained that the supervisor was verbally and mentally abusive, berated her, and pushed her into a corner with “negative words and aggressive behavior.” In September 2013, the supervisee filed an EEO complaint against the employee and her supervisor, a white man.

Reassignment. In October, the employee’s supervisor emailed her a list of important tasks he had assigned to her in June but were still incomplete. In January 2014, the supervisor contacted Employee Relations to discuss the employee’s performance as a supervisor and began working to reassign her to a different position. He informed the employee on March 12 that she would be reassigned; six days later, she filed an informal EEO complaint.

EEO complaint. Not long after that, the employee was temporarily detailed to another position and then reassigned to a nonsupervisory job. At that point, she was issued a formal notice explaining the reasons for her reassignment. According to the employee, her supervisor, during an April 21 meeting, told her he “was upset that she had filed her EEO complaint.”

BIG Conference. Shortly after her reassignment, the employee’s new supervisor denied her request to attend the BIG Conference, purportedly telling her “What did you not do that Matt asked you to do?” referring to the EEO complaint.

The employee subsequently sued, asserting Title VII claims for race discrimination, retaliation, and hostile work environment.

Race discrimination. In support of her claim she was demoted because of her race, the employee argued that the USDA promoted her because it needed an African-American supervisor to act as a “buffer” between it and the difficult supervisee’s race discrimination complaints and once the employee served that purpose, she was demoted. She alleged that her supervisor encouraged her to apply for the position even though he knew she had no supervisory experience, and he told the selection panel that the selectee “has to be comfortable working with challenging people,” but the court found it unclear how this supported her buffer theory.

Nor was there any evidence the employee’s supervisor knew the supervisee was filing race discrimination claims against the agency. Indeed, he testified that it was only after the employee was hired into the supervisory role that he learned that some of the supervisee’s prior managers had expressed frustration with her.

The employee also failed to show that similarly situated coworkers were not demoted within months of promotion. Here, she pointed to her supervisor’s statement that he “had never been in a scenario where [he] had looked at reassigning... a probationary employee before.” However, said the court, there was no evidence regarding other employees he might have supervised who were not demoted during a probationary period, including whether they were members of a different protected class than the employee and whether they had similar performance issues.

Set up to fail. As to the employee’s claim an African-American supervisor told her not to accept the supervisory position because she was “being set up to fail,” and that she was going to be working with someone that had people in high places, even assuming these statements were not inadmissible hearsay, they were at best ambiguous. Indeed, said the court, the employee admitted she did not know what the supervisor meant by her statement that her future colleagues “had people in high places” and that she had to “guess” as to the source of her belief she was being set up to fail. Nor did the statements suggest any connection between the employee’s race and her promotion.

Finally, said the court, the employee did not sufficiently contest the agency’s evidence concerning the quality of her performance as a supervisor. Her supervisor provided her with a formal reassignment notice that included nearly two pages of specific tasks that “remain[ed] incomplete or were completed in a fashion that d[id] not demonstrate acceptable competence in areas... fundamental to successful supervision.” While she argued that those items were “untrue,” there was nothing in the record to support her contention. Moreover, the few examples of good performance she identified did not negate the extensive evidence of poor performance the USDA claimed led to her demotion. Accordingly, the court granted summary judgment against this claim.

Retaliation. Regarding the employee’s claim she was demoted in retaliation for filing an EEO complaint, the court again noted that the agency pointed to her poor performance as a supervisor as the reason for the adverse action. Though she relied on temporal proximity—she filed her informal EEO complaint on March 18 and was assigned to temporary detail on March 24—she did not dispute that her supervisor decided to reassign her before she filed the EEO complaint.

He contacted Employee Relations in January and met with the employee on March 12 to inform her of her reassignment. Finding no evidence the agency’s stated reason for demoting her was pretextual, the court granted summary judgment against this claim as well.

Training opportunity. The employee also argued that the denial of her request to attend the BIG Conference was in retaliation for her EEO complaint. While the employee’s new supervisor claimed she denied the request because the employee did not explain “how her attendance would benefit her or her career development plans, or how it was related to her duties or would benefit the organization,” the employee claimed the supervisor, in reference to filing her EEO complaint, said “Why did you not do that Matt asked you to do?” Though the supervisor denied making this statement, the court found a fact dispute as to whether the supervisor referenced the employee’s EEO complaint in the context of their conversation about the conference.

The court also pointed to evidence the conference would provide the employee with opportunities to earn college credits and “enhance [her] current skills and foster professional development to further [her] career in the Federal Sector and to network with other Federal Agencies.” Denying summary judgment as to this claim, the court found a reasonable employee could be dissuaded from filing an EEO complaint if they knew they would be denied the opportunity to attend a conference where they could earn college credits and otherwise advance their career.

The case is No. 16-cv-2176 (JMC).

Judge: Cobb, J.

Attorneys: Donna Williams Rucker (Tully Rinckey) for Juanita Kennedy. William Mark Nebeker, U.S. Attorney’s Office, for Thomas J. Vilsack.

Cases: RaceDiscrimination Discrimination Retaliation PublicEmployees DistrictofColumbiaNews