Rodriguez v. Washington Metropolitan Area Transit Authority ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERNESTO RODRIGUEZ,
Plaintiff,
v. Civil Action No. 19-3710 (JEB)
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
Defendant.
MEMORANDUM OPINION
Plaintiff Ernesto Rodriguez is a successful boxing coach. The problem, according to his
former employer, Defendant Washington Metropolitan Area Transit Authority, is that he should
not have been coaching while out on workers’-compensation leave. When WMATA discharged
him, pointing to this work and his untruthfulness about it in an administrative investigation,
Rodriguez sued. He alleges that this termination was actually motivated by his race, color, and
national origin, thereby constituting unlawful discrimination. Both parties now cross-move for
summary judgment.
Believing that WMATA generally has the stronger position, the Court will grant its
Motion on the bulk of Plaintiff’s claims, but not as to race discrimination. The Court will also
deny Plaintiff’s Motion in its entirety, meaning that this fight will go another round.
1
I. Background
A. Factual Background
Because the Court is focusing on Defendant’s Motion for Summary Judgment, it will
construe the facts in the light most favorable to Plaintiff. See Talavera v. Shah, 638 F.3d 303,
308 (D.C. Cir. 2011).
Rodriguez worked as a Metro Transit Police Department officer at WMATA from 2009
until January 2019, when he was discharged. See ECF No. 13-2 (Pl. Resp. to Def. SMF), ¶¶ 1,
35. He identifies his national origin as Panamanian, his color as Black, and his race as Black and
Hispanic. Id., ¶ 3. Rodriguez was on leave due to injury and received workers’ compensation
from January to March 2018, and again from July 2018 to January 2019. Id., ¶¶ 4, 12; see also
ECF No. 1 (Compl.), ¶¶ 11, 27, 29; ECF No. 13-4, Exh. B (Office of Professional Responsibility
and Inspections (OPRI) Report) at 163.
In 2018, MTPD’s OPRI conducted an audit of the ten MTPD officers on workers’-
compensation leave at the time. See Pl. Resp. to Def. SMF, ¶¶ 4, 7. Sergeant Daniel Alvarez
and Captain Gregory Hanna were in charge. Id., ¶ 6. As part of the audit, Alvarez discovered
that Plaintiff was training a professional boxer, Jarrett Hurd. Id., ¶ 9. Alvarez viewed multiple
photos and videos on social media of Rodriguez and Hurd training together, some of which were
taken after Plaintiff went on leave in July 2018. Id., ¶¶ 9–10. Alvarez and Hanna thus requested
that Rodriguez meet with them for an administrative interview on January 4, 2019, shortly after
Plaintiff was scheduled to return to work. Id., ¶¶ 11–13.
In the recorded interview, Alvarez asked Plaintiff if he was working in any off-duty
secondary employment. Id., ¶ 13. Rodriguez responded that he had been volunteering as a
boxing coach since 2000. Id., ¶ 14. Alvarez then asked him if he was familiar with MTPD
2
General Order 245, which requires officers to seek approval from the MTPD Chief for any off-
duty employment. Id., ¶ 17. General Order 245 also lists an additional level of required
approval from the MTPD Chief for any officer seeking off-duty employment while on workers’-
compensation leave. Id., ¶ 20. Rodriguez admitted that he was familiar with the General Order
and that he had sought approval to work as a boxing coach in some prior years. Id., ¶¶ 17–18.
When asked whether he was compensated for training boxers, Rodriguez informed Alvarez that
he had made $500,000 from two fights that Hurd had won. Id., ¶ 19.
Plaintiff was thus placed on administrative leave with pay, and MTPD conducted a
second administrative interview on January 15, 2019. Id., ¶¶ 21–22. During that interview,
Alvarez noticed that Rodriguez was recording the proceedings on his cell phone. Id., ¶ 23. He
then told “[P]laintiff that ‘surreptitiously’ recording another officer is a violation of [MTPD]
General Order 217.” ECF No. 17-1 (Def. Resp. to Pl. SMF), ¶ 25. That Order states, however,
that the recording policy “does not include official sanctioned investigations,” id., ¶ 26, which
are not defined, and the parties dispute whether the interview was part of such an investigation.
Id. At the end of the interview, Rodriguez was transferred to administrative leave without pay.
Id., ¶ 38.
After consulting with WMATA’s in-house counsel, Alvarez and Hanna submitted a
report and recommendation to Chief of Police Ronald A. Pavlik, Jr. See Pl. Resp. to Def. SMF,
¶¶ 26, 30. Chief Pavlik agreed with the investigation’s findings, including that Plaintiff had
failed to seek approval to engage in outside employment while on workers’-compensation leave.
Id., ¶ 33. On January 28, 2019, Pavlik fired Rodriguez and issued a Letter of Termination setting
forth a summary of his reasons. Id., ¶ 35. Those included Rodriguez’s violation of General
Orders 217 and 245. See OPRI Report at 159–60.
3
B. Procedural History
Plaintiff responded by filing an EEOC charge alleging discrimination on the basis of race,
color, and national origin, see ECF No. 10-4 (EEOC Charge), and he received a right-to-sue
letter on September 16, 2019. See Compl., ¶ 6. He then filed this lawsuit three months later. Id.
Rodriguez alleges that WMATA discriminated on the basis of race, color, and national origin
when it discharged him, in violation of Title VII, 42 U.S.C. § 2000e et seq., and the District of
Columbia Human Rights Act, D.C. Code § 12-401 et seq. (DCHRA). Id., at 1 & ¶¶ 57–73.
Defendant now moves for summary judgment. Plaintiff, for his part, opposes that Motion and
also cross-moves for summary judgment.
II. Legal Standard
Summary judgment must be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “‘genuine’ if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.
R. Civ. P. 56(c)(1)(B).
4
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S.
at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1288 (D.C. Cir. 1998). The Court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007). The non-moving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant,
in other words, is required to provide evidence that would permit a reasonable jury to find in his
favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
WMATA moves for summary judgment on the ground that it terminated Rodriguez for
nondiscriminatory reasons — namely, for engaging in unapproved secondary employment while
out on workers’-compensation leave, for misleading MTPD about that employment, and for
recording the administrative interview. See ECF No. 10-1 (Def. MSJ) at 1–2. Rodriguez
counters that there remains a jury question about whether WMATA’s stated reasons for his
termination are pretext for discrimination, maintaining that Defendant treated similarly situated
White employees more favorably and that it has a history of employment discrimination. See
ECF No. 13-3 (Pl. Opp.) at 1–5. Rodriguez also contends that he should be the one to whom
summary judgment is granted. Id. at 30. Because he makes no substantive argument to support
such position, id., the Court focuses its analysis on WMATA’s Motion and briefly discusses
Rodriguez’s at the end of this Opinion.
5
Title VII makes it unlawful for an employer to “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The
Supreme Court established the three-part burden-shifting framework that governs traditional
claims of employment discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
05 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima
facie case of discrimination. When he “meets this burden, ‘[t]he burden then must shift to the
employer to articulate some legitimate, nondiscriminatory reason’ for its action. If the employer
succeeds, then the plaintiff must ‘be afforded a fair opportunity to show that [the employer’s]
stated reason . . . was in fact pretext’ for unlawful discrimination.” Chappell-Johnson v. Powell,
440 F.3d 484, 487 (D.C. Cir. 2006) (quoting McDonnell Douglas, 411 U.S. at 802, 804) (citation
omitted).
When, however, “an employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason for the decision, the district court
need not – and should not – decide whether the plaintiff actually made out a prima facie case
under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008) (emphasis omitted). The Court’s task in such cases is to “resolve one central question:
Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color, religion, sex, or national origin?”
Id. Thus, the “relevant inquiry” is whether an employee has “produced sufficient evidence for a
reasonable jury to conclude that the [defendant’s] asserted nondiscriminatory reason for firing
6
h[im] was not the actual reason, and that instead the [defendant] was intentionally
discriminating.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016).
In this case, there is no dispute that Rodriguez was discharged. See Pl. Resp. to Def.
SMF, ¶ 35. And Defendant has put forth a legitimate reason for its decision — i.e., because
Plaintiff violated General Orders 217 and 245. That justification is supported by “admissible
evidence,” is “clear and reasonably specific” as well as “facially credible in light of the proffered
evidence,” and could lead a jury to reasonably “find that the employer’s action was motivated by
a nondiscriminatory reason.” Figueroa v. Pompeo, 923 F.3d 1078, 1087 (D.C. Cir. 2019)
(internal quotation marks omitted). The Court’s inquiry is thus focused on the third step of the
McDonnell Douglas framework, which asks whether WMATA’s “stated reason . . . was in fact
pretext’ for unlawful discrimination.” Chappell-Johnson, 440 F.3d at 487 (quoting McDonnell
Douglas, 411 U.S. at 804).
A. Preliminary Issues
While Rodriguez’s Title VII race-discrimination claim will be discussed in depth below,
his numerous other theories of liability can be disposed of in short order. More specifically, the
Court will grant summary judgment to Defendant with regard to Plaintiff’s claims under the
DCHRA, as well as his Title VII national-origin and color-discrimination claims. Finally, to the
extent that Rodriguez alleges a stand-alone claim of “pattern or practice” discrimination under
Title VII, this one too is knocked out.
1. DCHRA
Although Rodriguez does not list a separate count invoking the DCHRA in his
Complaint, the Court will afford him the benefit of the doubt and construe the references in that
pleading and in his briefing as alleging unlawful discrimination under that Act. See Compl. at 1
7
& ¶¶ 4, 57; see also Pl. Opp. at 16. But that is as far as Plaintiff’s claims pursuant to the
DCHRA go, as WMATA correctly points out that it is immune from such an action here. See
Def. MSJ at 8–9.
“WMATA is the creation of an interstate compact (‘the Compact’) signed by Maryland,
Virginia, and the District of Columbia. It is therefore an instrumentality of those jurisdictions.”
White v. Washington Metro. Area Transit Auth., 303 F. Supp. 3d 5, 9 (D.D.C. 2018). As a
number of courts in this district have recognized, “[T]he Compact itself clarifies that ‘one
signatory may not impose its legislative enactment upon the entity created by it without the
express consent of the other signatories and the Congress of the United States.’” Id. (quoting
Lucero-Nelson v. Wash. Metro. Area Transit Auth., 1 F. Supp. 2d 1, 7 (D.D.C. 1998)); see also
Hunter v. Wash. Metro. Area Transit Auth., 485 F. Supp. 3d 65, 81 (D.D.C. 2020). For that
reason, “[i]t is well-established that WMATA is not subject to the DCHRA” unless Maryland
and Virginia consent to such a suit. Taylor v. WMATA, 109 F. Supp. 2d 11, 18 (D.D.C. 2000).
Neither Plaintiff’s Complaint nor anything else in the record contains any “indication that
Maryland and Virginia have consented to suit under the DCHRA.” White, 303 F. Supp. 3d at 9.
Indeed, Rodriguez never contests WMATA’s immunity defense. See Pl. Opp. at 16–17. Any
claim against WMATA pursuant to the DCHRA thus ends here.
2. National-Origin Discrimination
Turning to Title VII, Defendant moves for summary judgment on Rodriguez’s national-
origin claim on the ground that Chief Pavlik did not know, and thus could not have discriminated
on the basis of, Rodriguez’s national origin. See Def. MSJ at 12–13. Plaintiff does not dispute
Pavlik’s lack of knowledge. See Pl. Opp. at 18. To be sure, Pavlik need not have known that
Rodriguez was from Panama to discriminate on the basis of national origin. The EEOC’s
8
guidelines define such discrimination to include acts taken “because an individual has the
physical, cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1. It
is thus “not necessary to show that the alleged discriminator knew the particular national origin
group to which the complainant belonged.” Guidelines on Discrimination Because of National
Origin, 45 Fed. Reg. 85,632, 85,633 (Dec. 29, 1980); see also EEOC v. WC&M Enterprises,
Inc., 496 F.3d 393, 401–02 (5th Cir. 2007). Here, however, Plaintiff provides no reason for the
Court to infer that Pavlik was even aware that he has an immigrant background, much less that
Pavlik discriminated against him for that reason. In Burley v. National Passenger Rail Corp.,
801 F.3d 290 (D.C. Cir. 2015), the D.C. Circuit explained that the “primary flaw in [the
plaintiff’s] attempt to show pretext . . . is that it is undisputed that the [] supervisors who denied
the waiver and disciplined [the plaintiff] did not know his race.” Id. at 300. The same logic
applies here. See Groce v. Billington, No. 90-2057, 1992 WL 280363, at *3 (D.D.C. Sept. 3,
1992) (“Because plaintiff has failed to demonstrate that the rating panel members had knowledge
of his race when they made their rating decisions, he has failed to present a prima facie claim of
discrimination under Title VII.”).
Beyond Pavlik’s lack of knowledge, Rodriguez does not identify an iota of evidence
evincing discrimination based on national origin. See Pl. Opp. at 18. For instance, he never
identifies the national origin of the comparators he introduces for purposes of litigating his race-
discrimination claim. See Pl. Opp. at 19–24. As a result, this claim can proceed no further.
3. Color Discrimination
Plaintiff’s claim of color discrimination under Title VII meets the same fate. “Although
not defined in the statute, Title VII claims based on color have been interpreted by the courts as
relating to the complexion of one’s skin.” Howard v. D.C. Pub. Sch., 501 F. Supp. 2d 116, 121
9
n.15 (D.D.C. 2007) (collecting cases). In other words, to the extent that courts have analyzed
claims of color discrimination separate from race-based claims, they have looked to whether the
“particular hue of the plaintiff’s skin is the cause of the discrimination, such as in the case where
a dark-colored African-American individual is discriminated against in favor of a light-colored
African-American individual.” Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 132 n.5 (4th
Cir. 2002); see also Felix v. Marquez, No. 78-2314, 1980 WL 242, at *1 (D.D.C. Sept. 11,
1980).
In this case, although Rodriguez makes a passing reference to color discrimination, he
“does not make any arguments based on complexion of h[is] skin color, but rather argues race
discrimination.” Howard, 501 F. Supp. 2d at 121 n.15; see also Pl. Opp. at 18–22. The Court
therefore understands his color-discrimination claim to be subsumed by his race-discrimination
claim, which the Court analyzes below. See Howard, 501 F. Supp. 2d at 121 n.15. And to the
extent that Plaintiff separately alleges color discrimination, the Court notes that he has not
identified any similarly situated Black officers with a different complexion who were treated
more favorably or even made mention of the hue of his own skin. Indeed, while Rodriguez
identifies four comparators who were allegedly treated more favorably than he was, they are all
white. See ECF No. 13-1 (Pl. SMF), ¶ 58.
4. Pattern or Practice of Discrimination
Before analyzing the crux of Plaintiff’s complaint of race discrimination under Title VII,
there is one last preliminary issue to address. In addition to alleging race discrimination against
himself alone, Rodriguez appears to allege that Defendant has a “pattern or practice” of such
conduct. See Pl. Opp. at 23, 24, 27. WMATA rejoins that the Court should dismiss any such
10
claim because it is improperly brought by an individual plaintiff. See ECF No. 17 (Def. Reply)
at 2–4. The Court agrees.
Under the pattern-or-practice framework, “a class of plaintiffs may submit ‘proof of the
pattern or practice’ of discrimination that ‘supports an inference that any particular employment
decision, during the period in which the discriminatory policy was in force, was made pursuant
to that policy.’” Marcus v. Geithner, 813 F. Supp. 2d 11, 20 (D.D.C. 2011) (quoting Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 362 (1977)). But “myriad rulings from members of
this court and elsewhere have unanimously affirmed the proposition that an individual plaintiff
may not bring a standalone ‘pattern or practice’ claim outside the context of a class action.” Id.;
see also Calobrisi v. Booz Allen Hamilton, Inc., 58 F. Supp. 3d 109, 113 (D.D.C. 2014)
(“[T]hese pattern and practice allegations are not relevant to venue because, as other courts in
this Circuit have previously determined, individual plaintiffs such as Calobrisi cannot bring a
pattern or practice claim under Title VII.”). Plaintiff here offers no rebuttal on this point. See
ECF No. 18 (Pl. Reply) at 3–4.
Because Rodriguez is the sole plaintiff, the Court grants Defendant’s Motion to the extent
that he “purports to pursue a ‘pattern or practice’ claim that is distinct from the McDonnell
Douglas framework.” Marcus, 813 F. Supp. 2d at 20. Of course, as an individual plaintiff,
Rodriguez may nonetheless “introduce evidence of systematic or general discrimination when
developing h[is] individual discrimination claims within the McDonnell Douglas framework.”
Id. at 20–21 (collecting examples). The Court will thus consider that type of evidence as it
continues its analysis.
11
B. Race Discrimination
1. Single-Motive and Mixed-Motive Discrimination
The undercard bouts having been completed, the Court now arrives at the main event:
Plaintiff’s claim of individual race discrimination under Title VII. Before delving into the
merits, the Court must determine the proper legal framework for evaluating that claim. While
Rodriguez’s briefing on the issue is not a model of clarity, he appears to invoke both the “single-
motive” theory of discrimination as well as the “mixed-motive” theory. See Pl. Opp. at 12–13.
Defendant does not directly address the latter and presumes that Plaintiff is bringing only a
single-motive or “but-for” discrimination case. See Def. Reply at 5. Although Rodriguez could
do more to precisely articulate his theory — and “at some point he must place the employer and
court on notice as to the theory or theories under which he intends to proceed,” Ponce v.
Billington, 679 F.3d 840, 845 (D.C. Cir. 2012) — his repeated references to the mixed-motive
theory are sufficient for the Court to analyze the issue through that lens as well. See Compl.,
¶ 72; Pl. Opp. at 12–13, 17. Because “a plaintiff may ultimately decide to proceed under both
theories of liability,” Ponce, 679 F.3d at 845, the Court will assume that is Rodriguez’s current
position.
In addition to the single-motive, but-for standard provided for in 42 U.S.C. § 2000e-
2(a)(1), section 2000e–2(m) states that “an unlawful employment practice is established
when . . . race, color, religion, sex, or national origin was a motivating factor for any
employment practice.” (emphasis added). Authorizing what is known as a “mixed-motive”
case, that provision allows a plaintiff to prevail by showing that discrimination was “a factor
motivating the adverse action.” Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C Cir.
2008). “Importantly, however, relief in a mixed-motive case is limited to ‘declaratory relief,’
12
certain ‘injunctive relief,’ and certain fees and costs if the defendant ‘demonstrates that [it]
would have taken the same action in the absence of the impermissible motivating factor.’”
Ponce, 679 F.3d at 844–45 (quoting 42 U.S.C. § 2000e–5(g)(2)(B)). “By contrast, a plaintiff
who establishes but-for causation may recover damages, as well as declaratory and injunctive
relief.” Id. at 845.
How, then, should the Court evaluate Plaintiff’s twin theories of liability at summary
judgment? Given that “a plaintiff can use evidence of pretext and the McDonnell Douglas
framework to prove a mixed-motive case,” Ponce, 679 F.3d at 844 (citing Fogg v. Gonzales, 492
F.3d 447, 451 n.* (D.C. Cir. 2007)), as well as a but-for case, that is how the Court will analyze
the issues. Under that framework, as Rodriguez has done enough to defeat summary judgment
on his but-for discrimination claim, he has also “necessarily” made the requisite showing with
regard to his mixed-motive claim. See Ponce, 679 F.3d at 845.
2. Evidence of Pretext
At last, the Court reaches the merits. To review, WMATA has offered a
nondiscriminatory reason for terminating Rodriguez — i.e., that he engaged in secondary
employment without authorization while on workers’-compensation leave, misled MTPD about
that employment, and impermissibly recorded the administrative interview with MTPD
investigators. See Def. MSJ at 1–2. The “relevant inquiry” is thus whether Plaintiff has
“produced sufficient evidence for a reasonable jury to conclude that [Defendant’s] asserted
nondiscriminatory reason for firing h[im] was not the actual reason.” Wheeler, 812 F.3d at 1114.
“A plaintiff may support an inference that her employer’s stated reasons for undertaking
the adverse employment action in question were pretextual by citing a number of possible
sources of evidence, including ‘the employer’s better treatment of similarly situated employees
13
outside the plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation
from established procedures or criteria, [ ] the employer’s pattern of poor treatment of other
employees in the same protected group as the plaintiff, or other relevant evidence that a jury
could reasonably conclude evinces an illicit motive.’” Id. at 1115 (quoting Walker v. Johnson,
798 F.3d 1085, 1092 (D.C. Cir. 2015)). In this case, Rodriguez supports the inference of
discrimination by demonstrating that similarly situated white officers engaged in comparable
misconduct yet were not fired, and that MTPD has a history and pattern of discrimination. See
Pl. Opp. at 22–30.
“Probably the most commonly employed method of demonstrating that an employer’s
explanation is pretextual is to show that similarly situated persons of a different race or sex
received more favorable treatment.” 1 Lex K. Larson, Employment Discrimination § 8.04, at 8–
66 (2d ed. 2007), quoted in Brady, 520 F.3d at 495. To prove that he is similarly situated to
another employee, the plaintiff must demonstrate that he and the other employee “were charged
with offenses of comparable seriousness” and “that all of the relevant aspects of his employment
situation were nearly identical to those of the other employee.” Burley, 801 F.3d at 301
(quotation marks and alteration omitted). “Factors that bear on whether someone is an
appropriate comparator include the similarity of the plaintiff’s and the putative comparator’s job
and job duties, whether they were disciplined by the same supervisor, and, in cases involving
discipline, the similarity of their offenses.” Id.
Rodriguez contends that four white WMATA officers are appropriate comparators. See
Pl. SMF, ¶ 58. While he identified additional possible ones in his EEOC charge and his
Complaint here, at the summary-judgment stage, he sticks to only the four: S.M., W.O., C.S., and
L.E. See Pl. Opp. at 10. Defendant does not dispute that each of these people is white and that,
14
except for C.S., they all had similar job duties and were disciplined by Chief Pavlik. See Def.
Reply at 12–17; see also ECF No. 13-9, Exh. H (L.E. Report); ECF No. 13-10, Exh. I (W.O.
Report); ECF No. 13-11, Exh. J (S.M. Report); ECF No. 13-21, Exh. U (C.S. Report). A jury
could thus reasonably conclude that the preliminary factors suggest that L.E., W.O., and S.M. are
appropriate comparators.
So, too, a jury could reasonably find that two of these three “were charged with offenses
of comparable seriousness.” Burley, 801 F.3d at 301 (internal quotation marks omitted). In
short, although S.M. and W.O. did not commit identical offenses to Rodriguez’s, Plaintiff has
done enough to “raise[] a genuine issue as to whether the alleged misdeeds of the proposed
comparators were of comparable seriousness to h[is] own alleged misconduct.” Wheeler, 812
F.3d at 1118.
First, S.M. (a white male) was found to have violated MTPD General Order 245 for
engaging in outside employment. See S.M. Report at 34. While Rodriguez was terminated after
violating the same order, S.M. received only verbal counseling. Id. Defendant counters with
important factual differences between S.M.’s secondary employment and Rodriguez’s.
Specifically, S.M. was not out on workers’-compensation leave at the time, and he worked just
five days of secondary employment during a six-month period. See Def. MSJ at 16–17; Pl.
Response to Def. SMF, ¶¶ 59–61. But “it is not necessary that the comparators engaged in the
exact same offense” for a plaintiff to withstand a motion for summary judgment. Wheeler, 812
F.3d at 1118. After all, the “question of whether employees are similarly situated in order to
show pretext ‘ordinarily presents a question of fact for the jury.’” Id. at 1115 (quoting George v.
Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005)). Even though the offenses were not identical, a jury
15
“could reasonably conclude” that violating General Order 245 by engaging in unapproved
secondary employment constitutes an “offense[] of ‘comparable seriousness.’” Id. at 1118.
Second, a jury could reasonably find that W.O. (a white male) also committed an offense
of comparable seriousness yet was disciplined less severely. He violated MTPD General Order
217, which addresses ethical and information-disclosure standards, when he failed to report an
incident involving his striking a child with his vehicle. See W.O. Report at 4–6. The MTPD
administrative investigation found that W.O. was guilty of, among other things, “[b]ringing
discredit to the department” and “[f]ailure to report an accident,” both violations of General
Order 217. Id. at 1, 5–6. Yet W.O. received only a ten-hour suspension. Id. at 6. In fairness to
WMATA, Rodriguez’s violation was arguably more serious than W.O.’s, as Plaintiff initially
failed to disclose $500,000 in income, was found to have intentionally misrepresented
information, and recorded his administrative interview. See OPRI Report at 165–66. But the
D.C. Circuit has cautioned against “requir[ing] that employees always have to engage in the
exact same offense as a prerequisite for finding them similarly situated.” Wheeler, 812 F.3d at
1118. The fact of the matter is that Rodriguez was terminated for violating General Order 217
after failing to disclose information, while W.O. was suspended for ten days for the same
omission. That is enough for a jury to find the two men similarly situated.
The Court agrees with Defendant, however, that no reasonable jury could conclude that
C.S. and L.E. are appropriate comparators. As to the former, the most important difference
between him and Plaintiff is that C.S. (a white male) was disciplined by Sergeant Weaver, not
Chief Pavlik. See C.S. Report at 2. Plaintiff does not contest that fact in his Reply; indeed, after
belaboring why C.S. was an appropriate comparator in his opening brief, Rodriguez never
mentions C.S. in his Reply. See Pl. Reply at 12–15.
16
L.E. (a white woman), meanwhile, was investigated for depositing three temporary-total-
disability checks sent to her in error after returning from leave. See L.E. Report at 1. When
asked about the incident, she was truthful and explained that she was never told her disability
payments should have ended when she started working light duty, and that she did not realize
that she was not supposed to receive or cash the checks. Id. at 2–3. The initial charge of
violating General Order 217 was thus not sustained, and L.E. was not disciplined. Id. at 3–4.
Because she was not found by WMATA to have committed any offense, much less an offense of
comparable seriousness, a reasonable factfinder could not conclude that L.E. is an appropriate
comparator.
To be sure, Defendant raises nontrivial arguments about the differences between the
offenses committed by Plaintiff and his two comparators. For instance, it is correct that neither
S.M. nor W.O. violated both General Order 217 and 245. See Def. Reply at 16. And it is also
true that the factual conduct underlying the General Order violations differed in each case; for
instance, Rodriguez made a half-million dollars while out on workers’-compensation leave,
while S.M. worked just five days of outside employment and was not on leave. These efforts to
distinguish the offenses may well prove convincing at trial, but at this stage, the Court asks
merely whether a jury could reasonably compare Rodriguez to white MTPD officers who were
found to have violated the same General Orders yet were disciplined less harshly. “In view of all
the evidence, [the Court] cannot say that no rational and reasonable jury could find these
[officers] to be comparable to” Rodriguez. Wheeler, 812 F.3d at 1119.
Plaintiff’s attempts to demonstrate “the employer’s pattern of poor treatment of other
employees in the same protected group as” Rodriguez could also bolster a reasonable jury’s
finding of pretext, even if that other evidence is not independently necessary or sufficient to
17
defeat Defendant’s Motion for Summary Judgment. See Wheeler, 812 F.3d at 1115. This
additional, non-comparator evidence includes: (1) instances of other Black or Hispanic
employees being terminated for allegedly comparable offenses committed by white employees
who were not terminated; and (2) empirical data suggesting that WMATA has disproportionately
discharged Black and Hispanic officers in recent years. See Pl. Reply at 3–4. For instance, a
Black officer was fired after cashing several disability checks he received in error upon returning
to work after leave, whereas L.E. was not terminated after facially similar conduct. See ECF No.
13-12, Exh. K (Saunders Report) at 1. A 2019 WMATA employment-discrimination
investigation report, moreover, found that while approximately 39% of MTPD officers are white,
6 of the 7 officers terminated between 2017 and 2019 were Black or Hispanic, and 12 of the 13
separations from service involved Black or Hispanic officers. See ECF No. 18-2, Exh. Y
(Saunders Investigation) at 3–5.
Ultimately, the Court need not assign such evidence dispositive weight. The other Black
and Hispanic officers who were terminated after committing allegedly comparable offenses as
their white colleagues are not the plaintiffs in this case. The record, moreover, does not
conclusively demonstrate that those Black and Hispanic officers were discriminated against.
See, e.g., Saunders Investigation at 9–10 (investigation concluded that Saunders was not
discriminated against on basis of race). Insofar as Plaintiff attempts to bring in empirical
evidence supporting an inference of “systematic or general discrimination,” he has not presented
the type of robust statistical evidence and analysis necessary to make such a stand-alone finding.
He has not, for instance, attempted “to control for potential confounding factors,” In re Navy
Chaplaincy, 738 F.3d 425, 429 (D.C. Cir. 2013), or to conduct a mathematical analysis beyond
presenting the raw number of terminations by racial category. At the end of the day, then, the
18
additional evidence that Rodriguez gestures at could buttress a reasonable jury’s finding of
pretext based on the comparator evidence, but it alone does not mandate a denial of summary
judgment. That conclusion is consistent with the instruction that while statistical evidence “is
admissible and may be helpful” in an “individual disparate treatment” case, such evidence is
“ordinarily not dispositive.” Krodel v. Young, 748 F.2d 701, 710 (D.C. Cir. 1984) (citing
Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978)).
* * *
Before concluding, the Court is mindful that Plaintiff also cross-moved for summary
judgment. See Pl. Opp. at 1. Once a court “determines that one party is not entitled to summary
judgment, it changes tack on the cross motion and gives the unsuccessful movant all of the
favorable factual inferences that it has just given to the movant’s opponent.” Clark v. Vilsack,
No. 19-394, 2021 WL 2156500, at *2 (D.D.C. May 27, 2021) (internal quotation marks omitted).
It is of course “possible for a court to deny summary judgment to both sides.” Id. The Court
will take that approach here.
Even though a reasonable jury could find that WMATA’s stated reason for discharging
Rodriguez was pretextual, it could also conclude that he failed to “prove that, despite the
proffered reason, []he has been the victim of intentional discrimination.” Figueroa, 923 F.3d at
1086. Most notably, a jury could reasonably determine that the alleged comparators had not
committed offenses of comparable seriousness and thus were not similarly situated “in all
relevant respects.” Wheeler, 812 F.3d at 1116. The Court will therefore deny summary
judgment to Plaintiff as well.
19
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment on Plaintiff’s claim under the DCHRA, as well as his claims of national-origin
discrimination, color discrimination, and pattern-or-practice discrimination pursuant to Title VII.
The Court will deny Defendant’s Motion with regard to Rodriguez’s individual race-
discrimination claim brought under Title VII. It will also deny Plaintiff’s Motion for Summary
Judgment. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 23, 2021
20