Bamba v. U.S. Department of Homeland Security

Background

Miankanze Bamba was employed by the Department of Homeland Security’s Federal Protective Service as a Regional Financial Manager. He applied in 2018 for a GS-14 Supervisory Program Management (Mission Support) position in Region 2. The position went to YinPing Cheng, whom Bamba alleged was less qualified and an Asian woman. Bamba claimed that his non-selection violated Title VII because of his race and sex.

Bamba also claimed that he was subjected to a hostile work environment because he is Black. He relied primarily on a March 2018 incident involving James Ward, who allegedly screamed at him, pressed his hand against a firearm, tried to remove the firearm from its holster, pushed him in his chair, and tried to prevent him from getting emergency assistance. Bamba alleged that Jason Martinez, a supervisor with authority over both men, witnessed the incident but did not intervene.

Bamba initially filed the case without a lawyer, but he was represented by counsel when he filed the amended complaints. His Second Amended Complaint asserted only Title VII claims: race- and sex-based discrimination based on the failure to promote, and a race-based hostile work environment. The Department of Homeland Security-FPS was later abandoned as a defendant, leaving Alejandro Mayorkas as the defendant addressed by the summary-judgment ruling.

Magistrate Judge’s Recommendation and Objections

After discovery, Mayorkas moved for summary judgment. Summary judgment is a decision without a trial when the evidence does not show a genuine dispute requiring a jury to decide the case. Magistrate Judge Figueredo recommended granting the motion on both the failure-to-promote claims and the hostile-work-environment claim.

As to the promotion, the magistrate judge concluded that Bamba established enough for an initial discrimination case but did not produce evidence showing that the agency’s stated reasons were a pretext, meaning a cover for discrimination. The agency relied on Bamba’s failure to provide proof that he had completed the required 52 weeks at the GS-13 level for the April announcement and his failure to submit an application by the September 7, 2018 first-review deadline for the reposted announcement.

As to the hostile-work-environment claim, the magistrate judge concluded that the evidence did not show sufficiently severe or pervasive conduct or that the conduct occurred because of Bamba’s race. Bamba objected, arguing that he had satisfied the time-in-grade requirement, that the agency did not follow its procedures, that the selected applicant was less experienced, and that Ward’s conduct was sufficiently severe.

District Court’s Analysis

Judge Liman reviewed the portions of the recommendation that Bamba specifically challenged independently and reviewed the remaining portions for clear error. The court held that Mayorkas had offered legitimate, nondiscriminatory reasons for the non-selection. The April 2018 announcement required applicants to submit a personnel form showing proof of time in grade. Bamba submitted a form showing an individual cash award, but the form did not show his grade level. The Office of Personnel Management therefore did not place him on the Certificate of Eligibles for that announcement.

The position was later reposted with the same time-in-grade requirement. Although the announcement remained open for six months, it stated that the first applicant review would occur on September 7, 2018, with further reviews only if needed. Bamba submitted his application on September 12, 2018, so he was not included on the Certificate of Eligibles for that announcement either.

The court also held that Bamba did not create a genuine factual dispute about those reasons. He did not respond properly to Mayorkas’s required factual statement, so the supported factual assertions were treated as undisputed at this stage. Even apart from that procedural failure, Bamba did not submit evidence showing that the relevant form had been provided to the Office of Personnel Management or contradicting the agency’s evidence about the application deadlines and eligibility lists. The court found no evidence of procedural irregularity or pretext.

For the hostile-work-environment claim, the court emphasized that Bamba had to provide evidence that the conduct occurred because of his race. The court noted that Ward did not make an offensive statement about Bamba’s skin color or race during the confrontation or at another time. Bamba’s assertions about Ward’s alleged treatment of another Black employee were unsupported by admissible evidence showing that the other incident occurred or was race-based. The court concluded that the evidence suggested Ward’s aggression was indiscriminate rather than racially motivated.

The court did not decide whether the March 2018 incident was severe enough, by itself, to establish a hostile work environment. It stated that it did not need to reach that issue because Bamba failed to show that the incident occurred because of his race.

Disposition

Judge Liman overruled Bamba’s objections and adopted the Report and Recommendation. The court granted Mayorkas’s motion for summary judgment on Bamba’s Title VII non-selection claims and hostile-work-environment claim. It directed the clerk to enter judgment for the defendant and close the case.