Aamir Cooper v. American University ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 22-7067 September Term, 2022
FILED ON: JANUARY 13, 2023
AAMIR COOPER,
APPELLANT
v.
AMERICAN UNIVERSITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01970)
Before: SRINIVASAN, Chief Judge, WILKINS, Circuit Judge, and RANDOLPH, Senior
Circuit Judge.
JUDGMENT
The court has accorded the issues full consideration and has determined that they do not
warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated below, it is:
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
* * *
Aamir Cooper, an African-American man, was a police dispatcher for the American
University Police Department. Cooper made inappropriate comments to at least six women who
were either staff members or students.1 The University fired him. Cooper then filed suit against the
University, alleging that the University discriminated against him on the basis of his race and sex.
1
Cooper allegedly approached the women, flirted with them, and asked for their phone
numbers. Cooper also allegedly made comments regarding religion and race. His behavior made
some of the women feel “threatened,” “nervous,” and “uncomfortable.” Cooper denied the
allegations.
The district court granted summary judgment in the University’s favor. It held that Cooper
had not shown that the University’s basis for firing him was pretextual or that there were defects in
its investigation. On Cooper’s motion for reconsideration, the court held that there was no clear
error in its decision; that the University suspending Cooper and placing him on administrative leave
with pay while it investigated his alleged inappropriate comments was not an “adverse” employment
action; and, in the alternative, that Cooper had failed to show that his suspension was pretextual.
The court amended its judgment to include Cooper’s claim of discrimination based on his paid
administrative leave.
On appeal, Cooper has given us no reason to doubt the district court’s judgment. To the
extent he challenges his firing, he has not shown that the University’s reason for firing him was
pretextual. Cooper had to “produce[] sufficient evidence for a reasonable jury to conclude that [the
University’s] asserted nondiscriminatory reason for firing [him] was not the actual reason, and that
instead [it] was intentionally discriminating against [him] on account of [his] race.” See Wheeler
v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016). Cooper tries to meet this burden
by identifying, inter alia, “the employer’s better treatment of similarly situated employees outside
the plaintiff’s protected group” or “its inconsistent or dishonest explanations.” Id. at 1115 (quotation
omitted).
But Cooper does not identify any such individual. He points to Lieutenant Rimi Sifri, a white
female who was a supervisor in Cooper’s unit. Sifri gossiped to other officers about a subordinate’s
sexual orientation, sexual encounters, and personal life. It is of no moment that Sifri was disciplined
but not fired. She was not similarly situated to Cooper; the comparative seriousness of their conduct
is not close. See, e.g., Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir.
1995).2 As in Neuren, here Cooper’s conduct is “entirely different” from Sifri’s conduct. See id.Sifri made her comments to co-workers about a co-worker. Cooper made his comments to
patrons of the University pool and students. See Williams v. Saint Luke’s-Shawnee Mission Health
Sys., Inc., 276 F.3d 1057, 1059-60 (8th Cir. 2002). Cooper created an environment for multiple
women that made them feel unsafe, and he made comments to them on a variety of intimate topics
(race, religion, and sex). See Schoppe v. Texas Dep’t of Crim. Just., 124 F.3d 191, 1997 WL
533074, at *4 (5th Cir. 1997) (per curiam).3
2
Cooper suggests instead a comparison between his case and Wheeler. But Wheeler involved
nurses who all erred in similar (although not exact) ways. See Wheeler, 812 F.3d at 1112, 1115,
1118-19. For example one nurse gave the wrong dosage of a drug, while the plaintiff left an IV bag
empty and set up the IV to deliver the wrong medicine. See id. at 1112, 1115. The nurses in
Wheeler at least engaged in comparably serious conduct, unlike Cooper and Sifri.
3
For the same reasons Billie Cunningham, a white female dispatcher and another individual
Cooper compares to himself, was not similarly situated. In addition, Cooper failed to proffer
competent evidence of some of the misconduct that he alleges Cunningham committed.
2
Cooper also fails to show that the University did not reasonably and honestly believe the
allegations against him. The University consistently gave the same reason for firing Cooper (i.e.,
his inappropriate conduct). Furthermore, despite Cooper’s denial that he engaged in sexual
harassment, the University reasonably believed that he had done so. See Fischbach v. D.C. Dep’t
of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996).
To the extent Cooper challenges his placement on administrative leave, he has failed to show
that the University’s non-discriminatory reasons for placing him on leave were pretextual.4
* * *
This disposition is unpublished. See D.C. Cir. R. 36(d). The Clerk will withhold the
mandate until seven days after any timely petition for rehearing or rehearing en banc is resolved. See
Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
4
We do not reach the question of whether paid administrative leave is an adverse action.
3