Walker v. District of Columbia ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHAVON T. WALKER,
Plaintiff,
Civil No. 15-00055 (CKK)
v.
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
(September 30, 2017)
Plaintiff, Shavon Walker, is a former employee of the District of Columbia Public Schools
(“DCPS”), which is an agency of the Defendant, the District of Columbia (the “District” or
“Defendant”). Plaintiff, who is African American, filed suit against Defendant, alleging that
Defendant: (1) violated the District of Columbia Whistleblower Protection Act (“DC WPA”); (2)
discriminated and retaliated against her on the basis of race, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); and (3) retaliated against her for
engaging in activity protected under the Rehabilitation Act of 1972, 29 U. S.C. § 700 et seq.
(“Rehabilitation Act”), and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12100 et
seq. Presently before the Court is Defendant’s [54] Motion for Summary Judgment.
Upon consideration of the parties’ submissions, 1 the relevant legal authorities, and the
record as a whole, the Court finds that Plaintiff has raised a genuine issue of material fact as to her
1
The Court’s consideration has focused on the following documents and their attachments:
Def.’s Mot. for Summ. Judg., ECF No. 54 (“Def.’s Mot.”) and the Mem. of P & A in Support of
Mot. (“Def.’s Mem.”), ECF No. 54-3; Pl.’s Opp’n and Mem. of P & A in Opp’n to Def.’s Mot.
(collectively, “Pl.’s Opp’n”), ECF No. 60; Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”), ECF
1
claims under the Whistleblower Protection Act and for retaliation under Title VII, but not for racial
discrimination or retaliation under the ADA or the Rehabilitation Act. Accordingly, the Court
shall GRANT-IN-PART and DENY-IN-PART Defendant’s [54] Motion for Summary Judgment.
Specifically, the Court shall grant Defendant’s Motion for Summary Judgment with regard to
Plaintiff’s racial discrimination claim pursuant to Title VII and her claim for retaliation under the
ADA and the Rehabilitation Act, but shall deny Defendant’s Motion for Summary Judgment with
regard to Plaintiff’s claim under the D.C. Whistleblower Protection Act and her claim for
retaliation under Title VII.
I. BACKGROUND
A. Factual Background 2
As a preliminary matter, this Court notes that in the Background section of Plaintiff’s
Opposition, Plaintiff notes that “[a]ll facts in this background statement are drawn from the
District’s statement of undisputed [facts] if those facts are indeed undisputed, and otherwise from
Ms. Walker’s accompanying statement of genuine issues and statement of countervailing facts,”
without providing any cites to either party’s statement of material facts Pl.’s Opp’n at 11 n.1.
Nor does Plaintiff’s argument in her Opposition provide cites to the statement of material facts or
No. 63; Pl.’s Mot. to Compel, ECF No. 24; Jt. Report to the Court regarding status of Mot. to
Compel, ECF No. 37.
2
The Court shall refer to Defendant’s Statement of Material Facts (“Def.’s Stmt.”), ECF No. 54–
4, or directly to the record, unless a statement is contradicted by the Plaintiff, in which case the
Court may cite to Plaintiff’s Statement of Genuine Issues and Countervailing Facts, ECF no. 60-
1, ECF No. 60-1, which responds to Def.’s Stmt. (“Pl.’s Resp.”) and proffers countervailing facts
(“Pl.’s Countervailing Fact”). Defendant’s response to Plaintiff’s Statement of Genuine Issues
and Countervailing Facts, which replies to Pl’s Resp. (“Def.’s Reply”) and to Pl’s Countervailing
Facts (“Def.’s Resp.”), ECF No. 63-3, may also be cited, where appropriate.
2
to the record evidence in this case. Rather, Plaintiff’s Opposition to the Motion contains several
narrative discussions by the Plaintiff, which are immaterial to the resolution of issues in this
Motion. 3
Plaintiff’s [60-1] Statement of Genuine Issues and Countervailing Facts is fifty-nine
pages in length, and her response to the District’s Statement No. 4 consists of numerous
references to bates-stamped pages that were produced to the District but only provided in part to
the Court as Exhibit D to Plaintiff’s Opposition. Plaintiff’s first countervailing “fact” (out of
178) is not a fact but a narrative that spans eight and one-half pages and includes numerous facts
and citations to bates-stamped documents, many of which have not been produced as exhibits to
the Plaintiff’s Opposition and are therefore not part of the record available to this Court for
purposes of determining Defendant’s Motion. 4 Local Civil R 7(h)(1) permits the non-moving
party to submit a statement of facts believed to be genuinely disputed, but those facts must be
“concise” and shall include specific “references to the part of the record relied on” to support the
statement. See LCvR 7(h)(1) (emphasis added). Plaintiff’s lengthy chronology of events,
presented as the first Countervailing Fact, does not comply with LCvR 7(h)(1) and is therefore
stricken. The parties were warned in this Court’s March 11, 2015 Scheduling and Procedures
Order that “[t]he Court strictly adheres to the dictates of Local Rule 7(h),” that statements of fact
must be “short and concise” and that “the Court may strike papers not in conformity” with its
rules. Scheduling and Procedures Order, ECF No. 11.
3
Defendant notes that Plaintiff has “not [] cite[d] to any specific statement that she either
identified in her countervailing statement of facts or that was raised by the District in its
statement of material undisputed facts” and therefore, “it appears that Plaintiff expects the
District, as well as the Court, to sift through the voluminous facts she has raised to determine the
relevance to or probative value of those facts to the issues before this Court.” Def’s Reply at 2.
4
Exhibit D is a “representative sample” of Plaintiff’s “written communications.” Def.’s Stmt. ¶
5.
3
Furthermore, as the District of Columbia Circuit has emphasized, “[Local Civil Rule
7(h)(1)] places the burden on the parties and their counsel, who are most familiar with the
litigation and the record, to crystallize for the district court the material facts and relevant
portions of the record.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101
F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)). In
the instant case, Plaintiff’s Statement of Genuine Issues and Countervailing Facts is unhelpful to
the Court in setting forth the required background as certain key facts relating to the timing and
substance of Defendant’s alleged retaliatory conduct are not contained therein, nor do Plaintiff
and Defendant always effectively distinguish between events that took place while Plaintiff was
at McKinley Technical High School (“McKinley”) or at Shaw-Garnett Patterson Middle School
(“Shaw”), or both, or cite to the correct portions of the record. Accordingly, contrary to its
preferred practice, the Court shall in some instances cite directly to the exhibits on which the
parties rely in their briefing rather than to their statements of material facts.
Plaintiff, who is African-American, was employed as a Special Education teacher at
McKinley beginning in 2005. Def.’s Stmt. ¶ 1. In her capacity as a Special Education teacher,
Plaintiff worked with high functioning autistic students. Def.’s Stmt. ¶ 2. At the beginning of the
2011-2012 school year, Plaintiff was transferred to Shaw as a continuing special education
teacher. Def. Stmt. ¶ 10. Plaintiff was informed that the autism program at McKinley was
changing and that Shaw needed a special education teacher. Def.’s Stmt. ¶¶ 9, 10, 11. At Shaw,
Plaintiff was assigned to teach a self-contained class of intellectually disabled students. Def.’s
Stmt. ¶ 13. She worked there until her employment was terminated on August 8, 2013. Def.’s
Stmt. ¶ 42.
4
1. Plaintiff’s Time at McKinley
During her time at McKinley, Plaintiff made complaints about the school’s alleged
failure to provide special education students with required services or accommodations that
fulfilled their individualized education programs. Def.’s Reply ¶ 4. More specifically, Plaintiff
raised complaints regarding: inappropriate class sizes and groupings of students; not being able
to obtain resources, including textbooks and classroom materials, and the support needed to
teach effectively; and inadequate working conditions, including operating out of a classroom in
the girl’s locker room adjacent to the school’s theater. Def.’s Reply ¶¶ 4, 5. Plaintiff claimed
that she was denied certain assistive technology devices, a white board and textbooks that she
needed for her students. Def.’s Stmt. ¶ 23. Plaintiff admitted however that she did not know
what [resources and support] other [teachers] requested or received at other schools. Def.’s
Stmt. ¶ 53. In fact, when asked whether the services were being provided at other schools,
Plaintiff testified that “[she couldn’t] speak to that because [she] wasn’t at those schools.” Def.’s
Stmt ¶ 52. Nor could Plaintiff speak to whether or not the purported lack of resources was due to
budgetary constraints at the school. Def.’s Reply ¶ 30; see Def.’s Mot., Ex. 4 (Pl.’s April 4,
2016 Dep.) at 53:2-12.
Plaintiff also complained about not being able to participate in certain training programs.
Def.’s Reply ¶ 6. Plaintiff testified that she believed there was a racial element to the decision
regarding who would receive training. See Pl.’s Mot., Ex. A (Pl.’s Dec. 22, 2015 Dep. at 126:1-
126:8, 131:1-132:10, 133:5-134:5, 134:21-136:5, 136:20-137:7.)5 Plaintiff did not however
know whether only one teacher received the training that she was allegedly denied, and she did
5
Defendant’s Exhibits are numbered while Plaintiff’s exhibits are lettered.
5
not know whether other black teachers were trained. See Def’s Mot., Exhibit 1 (Pl.’s Dec. 22,
2015 Dep.) at 121:12-123:14. 6 According to Plaintiff, “the only reason why [she knew the
[white] teacher received the training] [was] because [she] had regular conversations with her.”
See Ex. A, Pl.’s Dep. at 125:11-20. Plaintiff’s allegations that the denial of training was racially
motivated is unsupported by Plaintiff’s own statements, which are inconclusive as to who
received training.
Similarly, Plaintiff noted “different patterns of treatment” with regard to teachers in the
autism cluster program when the teachers attended meetings, but she was unable to identify the
schools or teachers. Def.’s Stmt. ¶ 19. Nor did Plaintiff know the Individualized Education
Program (“IEPs”) of the students of the Caucasian teachers, and admittedly, all she knew was
from what she saw at the meetings that took place and conversations she had with unidentified
minority teachers. Def.’s Stmt. ¶ ¶ 20, 21. On November 17, 2010, at a meeting with Colleen
Koval, the citywide head of DCPS’s autism program, Ms. Koval threatened to have Plaintiff
“written up.” Ex. 1’s Dep. at 60:4-60:22 (where Plaintiff states that Ms. Koval threatened to
write her up for a “task [that] wasn’t completed in an electronic database”); Def.’s Mot., Ex. 2
(May 16, 2014 Amended Charge of Discrimination) at 1. On November 23, 2010, Plaintiff
received a written reprimand by McKinley’s Principal, David Pinder. Def.’s Reply ¶ 3; Def.’s
Stmt. ¶ 33; Ex. 1 at 60:4-9. When asked whether the reprimand was the result of her raising
concerns about lack of resources, Plaintiff testified that “I don’t know why [Ms. Koval] - I can’t
speak to why it was influenced, I just know that it happened.” Ex. 1 at 62:3-15. Plaintiff does
not assert that this reprimand had any effect on her employment or otherwise.
6
Def.’s Ex. 1 and Pl.’s Ex. A are both excerpts from Plaintiff’s December 22, 2015 deposition.
6
In September 2011, Plaintiff was transferred to Shaw. Def.’s Stmt. ¶ 10. According to
Mr. Pinder, Ms. Koval recommended that Ms. Walker’s transfer from McKinley to Shaw
because Shaw needed Ms. Walker’s skill with autistic students. Pl.’s Stmt. ¶ 19. Plaintiff admits
that “she was told that they needed additional support at Shaw Middle School, [t]hey needed to
reallocate funds at the time, they didn’t have a special education teacher who could oversee . .
.students with . . . an intellectual disability at Shaw Middle School and so they needed someone
to cover the classroom.” Def.’s Stmt. ¶ 11.
2. Plaintiff’s Time at Shaw
At Shaw, Plaintiff was assigned to teach intellectually disabled students as opposed to
working with students in the autism program. Def.’s Stmt. ¶ 13. Plaintiff’s transfer to Shaw did
not affect her teacher licensing. Def.’s Stmt. ¶ 55. Plaintiff ended up also taking extra students
from another class and these students presented different disabilities from her intellectually
disabled students. Def.’s Stmt. ¶ 12; Pl.’s Stmt. ¶ 27. Plaintiff concludes that she was given
additional work in relation to a non-minority teacher.
After her transfer to Shaw, Plaintiff continued to make complaints about the lack of
resources available to implement the requirements of her students’ IEPs. Def.’s Stmt. ¶ 14.
Plaintiff indicated that “[d]uring the 2011-12 and 2012-13 school years at Shaw Middle School,
resources, teaching caseloads and training opportunities were allocated unequally between white
and minority teachers.” See Def.’s Mot., Ex. 5 (Pl.’s Answers and Objections to Interrogatories),
Answer to Interrogatory 4. Plaintiff contends further that she made a protected disclosure by
joining in a grievance with several other Shaw teachers concerning school safety and proper
discipline. Def.’s Stmt. ¶ 17.
7
At a February 15, 2012 IEP review meeting, Plaintiff informed a student’s parent and
attorney that the student was not receiving appropriate IEP services. Pl.’s Stmt. ¶ 3. On March
12, 2012, the Shaw Assistant Principal told Plaintiff that teachers could “not share any new IEP
information with the [student’s] attorney prior to the meeting.” Pl.’s Stmt. ¶ 4; Pl.’s Opp’n, Ex.
K (Mar. 12, 2012 e-mail from Shaw Assistant Principal DeMatthews to Plaintiff). In a May 27,
2012 e-mail to Mr. DeMatthews, Plaintiff asserted that “information about [her] classroom and
[her] students’ progress as it pertains to [her] classroom should be topics [she] can freely
discuss.” See Pl.’s Opp’n, Ex. L (5/27/2012 e-mail from Shavon Walker to David DeMatthews).
Plaintiff testified that [sometime] after the IEP meeting, she noticed that her “evaluations [went]
down significantly,” and she was subject to “constant micromanaging” and put on a “leave
restriction,” and she was told to “follow a certain protocol if [she] wanted to take leave.” See
Pl.’s Opp’n, Ex. B (Pl.’s Apr. 4, 2016 Dep.) at 65:14-68:1.
On June 13, 2012, Plaintiff received a poor performance review, which she alleged was
inconsistent with two other evaluations provided to her by the Special Education Master
Educators at the Central District Office. Def.’s Stmt. ¶ 32; Pl.’s Stmt. ¶ 7; Ex. A at 107:1-108:4.
Plaintiff’s low evaluation placed a “step hold” on her pay. Pl.’s Stmt. ¶ 9.
During the 2012-2013 school year, Plaintiff filed five complaints with the Labor
Management and Employee Relations Division (“LMER”) of DCPS, dated: October 11, 2012;
December 7, 2012; February 15, 2013; April 10, 2013; and May 20, 2013. Pl.’s Stmt. ¶ 21.
During that school year, Plaintiff was alleged to have fraudulently completed an IEP for a
student and submitted it as a finalized documents in EasyIEP, the IEP management system.
Def.’s Stmt. ¶ 35. An investigation was initiated into the complaint about Plaintiff’s alleged
fraudulent activity. Def.’s Stmt. ¶ 37. Because Shaw was closing at the end of the 2012-2013
8
school year, all staff had to secure new employment elsewhere. Def.’s Stmt. ¶ 38. Plaintiff
secured an offer of employment from Ludlow-Taylor Elementary School for the 2013-2014
school year. Def.’s Stmt. ¶ 39; see Ex. 5, Answer to Interrogatory No. 10; Pl.’s Opp’n, Ex. H
(Details of Plaintiff’s July 4, 2013 offer of employment from Ludlow-Taylor Elementary
School). After the investigation was completed, a review board decided to terminate Plaintiff’s
employment with DCPS, effective August 8, 2013, before she commenced employment at
Ludlow-Taylor Elementary School. Def.’s Stmt. ¶¶ 41, 42.
B. Procedural History
On or about June 19, 2012, Plaintiff filed a Charge of Discrimination (“Charge”) with the
Equal Employment Opportunity Commission (“EEOC”). Def.’s Stmt. ¶ 44; Def.’s Mot., Ex. 8
(June 19, 2012 Charge of Discrimination). In that Charge, Plaintiff identified the following
grievances from November 17, 2010 through June 13, 2012:
a. On September 2, 2011, Plaintiff was involuntarily transferred to Shaw Middle School as a
Special Education Teacher- Autism.
b. On November 17, 2010, Colleen Koval, the Special Education Autism Program Manager (PM)
for DC Public Schools (White), told her in a staff meeting, in front of her peers, that she was
going to be written up.
c. On November 23, 2010, Plaintiff received a written reprimand.
d. In August 2011, she was denied her request for school resources she needed.
e. On April 10, 2012, she was placed on an unwarranted leave restriction.
f. On April 25, 2012, she was given a letter of reprimand.
g. On or about June 13, 2012, she was given a poor performance review which was inconsistent
with two other evaluations provided by the Special Education Masters
9
Educators at the Central District Office.
Def.’s Stmt. ¶ 45.7
On or about May 16, 2014, Plaintiff amended her EEOC Charge of Discrimination.
Def.’s ¶ 46; Ex. 2. In that Amended Charge, Plaintiff identified the following additional acts of
alleged racial discrimination from October 2012 through December 2012:
a. [I]nequitable distribution of workloads, resources, and access to professional development
opportunities among the races.
Plaintiff also identified additional acts of racial discrimination as follows:
b. During the period February 2013 through August 2013, she participated in an unexpected
investigation regarding a[n] [alleged] fraudulent IEP, and that the documentation regarding the
investigation became part of her personnel file.
c. She received a low performance evaluation score because of the lack of direction provided to
her on future tasks.
Plaintiff identified additional acts of retaliation as follows:
d. In April 2013, she was suspended with no pay re: “negligence and dereliction of duties.”
e.. In April & May 2013, she was not paid for all medical leave taken despite providing medical
notes.
f. In July 2013, she received a letter stating that her overall performance evaluation for the
entire school year is not within an acceptable range to receive a pay increase.
g. In January 2014, her administrative appeal to the Chancellor regarding her performance
evaluation scores was denied.
h. In March 2013, she was suspended for three days.
7
Def.’s Stmt. ¶ 45, which is admitted by Plaintiff, summarizes the EEOC grievances.
10
i. The IMPACT process was violated when her performance was not properly rated.
j. On August 8, 2013, she was notified that her employment was terminated.
Def.’s Stmt. ¶ 47; Pl.’s Resp. ¶ 47. 8
Plaintiff filed a lawsuit in the Superior Court of the District of Columbia on December
15, 2014. ECF No. 1-1. On January 14, 2015, this case was removed to this Court from the
Superior Court of the District of Columbia. Plaintiff’s Complaint alleges one count in violation
of the DC WPA, one count of racial discrimination and retaliation, in violation of Title VII, and
one count of retaliation for engaging in protected activity under the Rehabilitation Act and the
ADA. See Amended Compl., ECF No. 1-1.
While discovery was pending in this case, Plaintiff filed a motion to compel against the
District on November 6, 2016, wherein she identified all the discovery produced by the District
on which she requested court intervention. 9 See Pl.’s Mot. to Compel, ECF No. 24 (requesting
information regarding training opportunities and support and benefits available to Plaintiff and to
comparable DCPS employees in Interrogatories Nos. 5-7). The motion to compel was referred to
Magistrate Judge G. Michael Harvey, who set a December 9, 2015 status hearing on the motion.
On December 10, 2015, Magistrate Judge Harvey directed the parties to file a “joint notice with
the Court, . . . articulating what, if any, issues raised in plaintiff’s Motion to Compel [Dkt. 24]
remain following the defendants’ submission of amended responses to plaintiff’s documents
requests and its recent production to plaintiff of additional materials after entry of the protective
order.” See December 10, 2015 Minute Order.
8
Defendant again summarizes the claims in the Amended EEOC charge.
9
The Court includes a discussion about the Plaintiff’s motion to compel because it is relevant to
Plaintiff’s claim for racial discrimination.
11
On January 27, 2016, the parties filed a Joint Report regarding the status of the motion to
compel, which indicated that Interrogatory No. 7 had been resolved but Interrogatories No. 5 and
No. 6 were still unresolved or only partially resolved. The District claimed that it had “fully
answered the interrogatories [5 and 6] as revised by Ms. Walker” and asserted that while Plaintiff
alleged that answers were deficient, she had not demonstrated any deficiency. See Joint Report
to the Court regarding the Status of the Motion to Compel, ECF No. 37, at 6. Accordingly,
Magistrate Judge Harvey set a February 16, 2016 hearing on the remaining issues identified in
the parties’ Joint Report.
In a Minute Order following the February 16, 2016 hearing, Magistrate Judge Harvey
stated that “[b]y agreement of the parties reached at the hearing, defendant [was to] provide
amended responses to a revised version of plaintiff’s interrogatories 5 and 6 on or before
February 23, 2016, which, if defendant complies, plaintiff agrees will resolve her motion with
respect to those two interrogatories as well.” February 16, 2016 Minute Order. Magistrate Judge
Harvey further noted that once defendant had provided amended responses to interrogatories 4,
5, and 6, and document request 31, “plaintiff agrees that all issues raised in her motion to compel
will be resolved with the exception of her request that defendant pay plaintiff’s legal fees and
expenses incurred in bringing the motion.” Id. Plaintiff did not raise any issues about any
contested discovery thereafter, even at the time she filed her motion for fees, which was granted
in part in a [46, 47] Memorandum Opinion and Order.
On July 1, 2016, this Court issued an Order finding that the parties had resolved all
discovery-related issues, including those concerning “Defendant’s answers to Plaintiff’s
interrogatories,” and Plaintiff made no objection to that Order. See July 1, 2016 Order, ECF No.
46. Nor did Plaintiff indicate there was any outstanding contested discovery when the parties
12
appeared before the Court, on September 8, 2016, to set a briefing schedule for dispositive
motions. See September 8, 2016 Minute Order.
After the close of discovery, Defendant filed its Motion for Summary Judgment, which is
now fully briefed and ripe for resolution. See Def.’s Mot.
II. LEGAL STANDARD
Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See
Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
13
address another party's assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in her favor.
Liberty Lobby, Inc., 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed
facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate.
Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby,
Inc., 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that
there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, Inc., 477 U.S. at
249-50 (internal citations omitted).
In recognition of the difficulty in uncovering clear evidence of discriminatory or
retaliatory intent, the district court should approach summary judgment in an action for
employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116
F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)
(en banc). Be that as it may, the plaintiff is not relieved of her burden to support her allegations
with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any
context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at
the summary judgment stage she bears the burden of production to designate specific facts
14
showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557
(2009). Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary
judgment device—namely, “to weed out those cases insufficiently meritorious to warrant . . .
trial”—simply by way of offering conclusory allegations, speculation, and argument. Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
III. DISCUSSION
A. Plaintiff’s Claims of Racial Discrimination Pursuant to Title VII
Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to
hire or to discharge any individual, or otherwise 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). Where there is no direct
evidence of discrimination, Title VII claims are assessed pursuant to the burden-shifting
framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973). Plaintiff has the initial burden of proving by a preponderance of the evidence a
prima facie case of discrimination. To allege a prima facie case of discrimination, a plaintiff must
show that she “is a member of a protected class,” that she “suffered an adverse employment
action,” and that “the unfavorable action gives rise to an inference of discrimination.” Youssef v.
F.B.I., 687 F.3d 397, 401 (D.C. Cir. 2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.
2002)).
Once the plaintiff has made a prima facie case, “the burden shifts to the defendant ‘to
articulate some legitimate, nondiscriminatory reason for the [employment action that is
challenged].’” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting McDonnell
Douglas, 411 U.S. at 802). Once an employer has proffered a nondiscriminatory reason, the
15
McDonnell Douglas burden-shifting framework disappears, and the court is left to determine
whether the plaintiff has put forth enough evidence to defeat the defendant’s proffer and support a
finding of discrimination. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008); Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).
At the summary judgment stage, courts may consider plaintiff’s prima facie case, evidence
presented by the plaintiff to rebut the employer’s explanations for actions taken, and any additional
evidence of discrimination that the plaintiff might proffer. See Hampton v. Vilsack, 685 F.3d 1096,
1100 (D.C. Cir. 2012); see Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (noting
that, to avoid summary judgment, a plaintiff need not submit evidence “over and above” that
necessary to rebut the employer’s stated reason) (quotation omitted). A plaintiff’s disagreement
with or disbelief in employer’s explanation cannot alone “satisfy the burden of showing that a
reasonable jury could find that the employer’s asserted reason was not the actual reason and that
the employer intentionally discriminated against the plaintiff on a prohibited basis.” Burton v.
District of Columbia, 153 F. Supp. 3d 13, 58 (D.D.C. 2015).
In the instant case, there is no dispute that Plaintiff, who is African American, meets the
first requirement of her prima facie case because she is a member of a protected class.
With regard to the second requirement, plaintiff must demonstrate that she suffered an
adverse action. See Evans v. Sebelius, 716 F.3d 617, 619 (D.C. Cir. 2013) (noting that an adverse
action is a prerequisite for a Title VII claim) (citing Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.
Cir. 2003)); Patterson v. Johnson, 505 F.3d 1296, 1298 (D.C. Cir. 2007) (“Liability for
discrimination under Title VII requires an adverse employment action.”) (citing Brown v.
Brody, 199 F.3d 446, 452–55 (D.C. Cir. 1999)). For purposes of Title VII discrimination claims,
“[a]n ‘adverse employment action’ is ‘a significant change in employment status, such as hiring,
16
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.’” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)). “An employee must
‘experience[ ] materially adverse consequences affecting the terms, conditions, or privileges of
employment or future employment opportunities such that a reasonable trier of fact could find
objectively tangible harm.” Id. (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)).
The D.C. Circuit has cautioned that “not everything that makes an employee unhappy is an
actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Indeed, in this
respect, “courts are not ‘super-personnel department[s] that reexamine[ ] an entity's business
decision[s].’” Stewart, 352 F.3d at 429 (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464
(7th Cir. 1986)).
1. Sorting out Plaintiff’s Claims of Discrimination
Plaintiff’s Amended Charge of Discrimination highlights two acts of discrimination – one
relating to inequitable distribution of workloads, resources, and access to professional
development opportunities and the other relating to the investigation into a “fraudulent IEP.” See
Ex. 2. Plaintiff’s Amended Complaint addresses discrimination on the basis of race in Count Two
but does little to enlighten this Court as it incorporates by reference Paragraphs 1-25, and only
Paragraph 14 specifically addresses an alleged racial disparity regarding denial of supports and
benefits, including training, materials, workspaces and division of responsibilities. See generally
Amended Compl. In her Opposition, Plaintiff alleges that Defendant discriminated against her on
the basis of race in “two respects,” first, by withholding of resources and supports, and second by
assigning Plaintiff “a disproportionately difficult case load at Shaw relative to the white special
17
education teacher.” Pl.’s Opp’n at 50. 10 Plaintiff does not assert that there was racial discrimination
regarding the investigation into the alleged fraudulent IEP, and accordingly, that issue has been
conceded by Plaintiff. “It is well understood in this Circuit that when a plaintiff files an opposition
to a dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.” Hopkins v Women’s Div.
Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citing FDIC v. Bender, 127
F.3d 58, 67-68 (D.C. Cir. 1997)); Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002), aff’d,
98 Fed. Appx. 8 (D.C. Cir. 2004). Accordingly, the Court will review Plaintiff’s claim for
discrimination as set forth in her Opposition.
Plaintiff claims that “Ms. Koval forced out minority autism program teachers,
including by making their work lives difficult by withholding necessary resources and supports.”
Pl.’s Opp’n at 50. Plaintiff contends that she has “propounded discovery designed [to] elicit
information that would show that minority and non-minority teachers within the autism program
were supported in disparate fashion during Ms. Koval’s tenure [but] [t]o date, despite promises to
provide the requested information, the District has never produced it.” Pl.’s Opp’n at 12. Plaintiff
suggests that this alleged non-production of discovery makes it “premature” for the Court to “even
consider [this] question.” Pl.’s Opp’n at 50. The Court notes that the deadline for completion
of discovery in this case was April 18, 2016. See March 18, 2016 Order, ECF No. 44.
In light of the record in this case, the Court finds that Plaintiff has waived any argument
related to the insufficiency of the District’s discovery responses because she repeatedly failed to
raise this issue when she was before this Court, instead waiting to raise it in her opposition to the
10
In citing the pleadings, the Court references the page number assigned by the Electronic Cases
Filing system.
18
pending Motion. Furthermore, while Plaintiff references Fed. R. Civ. P. 56(d) and (e) in her
Opposition, the Court notes that she provides no affidavit as required by Rule 56(d), and thus, any
request under Rule 56(d) should be denied. See Convertino v. U.S. Dept. of Justice, 684 F.3d 93,
99-100 (D.C. Cir. 2012) (explaining that a Rule 56(d) affidavit must outline the particular facts the
movant intends to discover and describe why such facts are necessary, explain why the facts could
not be produced in opposition to summary judgment, and show that the information is
discoverable). Accordingly, the Court rejects Plaintiff’s suggestion that it is premature to consider
Plaintiff’s claim of racial discrimination based on the factual predicate set forth above.
Plaintiff claims that she “was assigned a disproportionately difficult caseload at Shaw
relative to the white special education teacher,” and this constitutes disparate treatment. Pl.’s
Opp’n, at 50. Plaintiff asserts that she was “expected to teach several students, not intellectually
disabled, who were transferred into her class for reading instruction from the class of the Caucasian
special education teacher” and she “asked for training to help her teach her students, but only the
white special education teacher received training, leading her to believe that there was a racial
element to the training and caseload distribution decisions.” Pl.’s Opp’n at 14-15. The Court now
turns to whether Plaintiff has met the second requirement for establishing a prima facie case for
race based discrimination.
a. Does Plaintiff Establish an Adverse Employment Action?
It is well-established that an adverse employment action must involve “a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). The Supreme Court in Burlington
Northern provided an objective standard for what constitutes an “adverse employment action,”
19
first explaining that such action must be material, not trivial and second, adopting a flexible
standard because retaliation often depends upon the context, i.e., the particular circumstances.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). See also Niskey v. Kelly,
859 F.3d 1, 8 (D.C. Cir. 2017) (“Prohibited discrimination . . . is not rigidly confined to ‘hirings,
firings promotions, or other discrete incidents.’”) (quoting Holcomb v. Powell, 433 F.3d 889, 902
(D.C. Cir. 2006)). What is necessary to establish an adverse action is that the employee
“experience materially adverse consequences affecting the terms, conditions, or privileges of
employment or future employment opportunities such that a reasonable trier of fact could find
objectively tangible harm.” Douglas, 559 F.3d at 552 (internal quotations omitted) (emphasis
added).
In the instant case, Plaintiff’s claim of denial of training opportunities does not constitute
an adverse employment action with regard to her claim for racial discrimination. Plaintiff
provides no details about the type of training she was presumably denied or whether the lack of
any such training would have materially affected her employment. When alleging
discrimination, denial of a training opportunity can constitute an adverse employment action,
“but only if the denial materially affects the plaintiff’s pay, hours, job title, responsibilities,
promotional opportunities, and the like.” Santa Cruz v. Snow, 402 F. Supp. 2d 113, 127 (D.D.C.
2005); see also Edwards v. EPA, 456 F. Supp. 2d 72, 86 (D.D.C. 2006) (“[T]o be adverse, the
denial of a travel or training opportunity must have a discernible, as opposed to a speculative,
effect on the terms, conditions, or privileges of one’s employment.”) Plaintiff proffers no
evidence in support of her claim that denial of training had any discernible effect on the terms or
conditions of her employment. Therefore, there are no facts to support an adverse action for
purposes of proving her prima facie case.
20
Similarly, Plaintiff’s claim that she was not allocated certain resources does not rise to
the level of an adverse employment action, as “such common workplace shortfalls, without
more, are not the kinds of problems that Title VII was intended to remedy.” Casey v. Mabus,
878 F. Supp. 2d 175, 185 (D.D.C. 2012); see Allen v. Napolitano, 774 F. Supp. 2d 186, 203
(D.D.C. 2016) (finding that a denial of additional resources and support does not qualify as a
material adverse action where plaintiff “could have benefitted” from them). A lack of resources
and increased workloads are “familiar complaints in virtually every workplace and every
industry, but they do not give rise to a discrimination claim under Title VII.” Rattigan v.
Gonzales, 503 F. Supp. 2d 56, 73 (D.D.C. 2007); see also Clegg v. Ark. Dept. of Corr., 496 F.3d
922, 929 (8th Cir. 2007) (finding that a denial of access to needed employment tools and denial
of training did not meet the standard for establishing an adverse employment action).
Nor does Plaintiff’s claim that her workload was disproportionate to that of the Caucasian
teacher rise to the level of an adverse employment action for purposes of pursuing a racial
discrimination claim under Title VII, as she has set out no facts to support that the distribution of
work was racially motivated. “Changes in assignments or work-related duties do not ordinarily
constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour
changes.” Mungin v Katten Muchin & Zavis, 116 F.3d 1549, 1556-57 (D.C. Cir. 1997); see
also Bowdin v. Clough, 658 F. Supp. 2d 61, 82 (D.D.C. 2009) (finding that plaintiff did not state
a claim for discrimination based on being “given extra tasks” in relation to his female
counterparts in part because “the tasks among all [co-workers] vary according to their skill and
experience”); Rattigan, 503 F. Supp. 2d at 73.
In this particular case, any assignment of extra work fails to rise to level of a materially
adverse employment action because such action constitutes a “petty slight[ ] or minor
21
annoyance[ ] that often take[s] place at work and that all employees experience.” AuBuchon v.
Geithner, 743 F.3d 638, 645 (8th Cir. 2014) (quoting Burlington N., 548 U.S. at 68).
Accordingly, the Court concludes that Plaintiff has failed to demonstrate the existence of any
materially adverse employment action in support of her claim for racial discrimination, and thus,
she has not made a prima facie case.
b. Discriminatory Intent
Even assuming arguendo that Plaintiff’s disproportionate workload and lack of training
could be construed as adverse actions, Plaintiff would still need to demonstrate that this was
motivated by a discriminatory intent. In her Opposition, Plaintiff points to nothing in the record
before this Court to support an allegation of discriminatory intent. In her deposition, Plaintiff
testified that, while at Shaw, she was “asked to absorb the caseload” of a non-minority teacher
for reading instruction. Pl.’s Countervailing Fact ¶ 26; Ex. A at 115:18-117:8. The students sent
to Plaintiff’s classroom came from an inclusion class, while her students were self-contained,
and they presented different disabilities from her intellectually disabled students. Pl.’s
Countervailing Fact ¶ 27; Ex. A at 117:1-14. Plaintiff testified that she “had to get very creative
with how [she] was going to structure [her] program in order to provide effective instruction.”
Ex. A at 120:17-121:11. Plaintiff testified that she had five of her own students, who had
intellectual disabilities, and this number increased to approximately eleven students when the
additional students came in for reading instruction. Ex. A at 117:20-117:22; 119:3-18. Plaintiff
testified that she was “helping out this . . . Caucasian teacher with her caseload,” although that
teacher could have taught because she had time in her schedule. Ex. A at 119:19-120:5. Plaintiff
knew that the kids had “very challenging behavior” and “since [she] typically tend[s] to be good
with classroom management, [she] kn[e]w that’s why they actually asked [her] to help because
22
[the other teacher] wasn’t effective in that area” and it was “no big deal, fine, send them on over,
they will be with her for the rest of the time.” Ex. A at 120:6-120:12. Plaintiff opined that the
different levels impeded her ability to teach effectively. Pl’s Countervailing Fact ¶ 28; Def.’s
Resp. ¶ 28; Ex. A at 120:17-121:11.
Plaintiff asserted therefore that she asked to be trained to help her students but only the
white teacher received training, which led her to conclude that there was a racial element to the
decision. Pl.’s Countervailing Fact ¶ 29; Def.’s Resp. ¶ 29. Plaintiff’s statement is unsupported
by her deposition testimony that she did not know whether the teacher referenced was the only
teacher who received training or whether other black teachers were trained. See Ex. 1 at 122:1-
123:19; see also Ex. A at 125:11-20 (where Plaintiff testified that the only reason she knew that
the Ms. Baker [Caucasian] had received training was because she had conversations with her).
Plaintiff relies on her own opinions and fails to cite to any competent evidence to support her
claim that any denial of training or additional work that she was given was motivated by any
discriminatory intent or is in any way linked to her race.
Similarly, assuming that Plaintiff’s denial of resources could be construed as an adverse
action, in her Opposition, Plaintiff points to nothing that supports her claim that minority autism-
teachers were denied resources and supports that were provided to non-minority autism teachers.
Plaintiff testified that the basis of her race complaint is that she “saw the patterns of treatment
with different teachers throughout the autism cluster program when we attended the meetings”
but she could not identify any of the schools or teachers. Ex. 1 at 32:2-9; Def.’s Stmt ¶ 19.
Plaintiff further testified that all she knew was what she saw from the meetings and her
conversations with minority teachers but provided only a conclusory assertion with no details.
Def.’s Stmt. ¶ 21; Ex. 1 at 43:8-20. Plaintiff conceded that she did not know about the IEPs of
23
the white teachers so she could not speak to whether their resources matched their IEP needs.
Ex. 1 at 43:8-20; Def.’s Stmt. ¶ 20. Conclusory statements made by a Plaintiff that are
unsubstantiated by facts in the record “come within an exception to [the] rule” that “statements
made by the party opposing a motion for summary judgment must be accepted as true for the
purpose of ruling on that motion.” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) “Absent
supporting facts—and [Plaintiff] provided none—a jury would be in no position to assess her
claim . . . . Accepting such conclusory allegations as true, therefore, would defeat the central
purpose of the summary judgment device, which is to weed out those cases insufficiently
meritorious to warrant the expense of a jury trial.” Id.
Plaintiff testified that before Ms. Koval came to McKinley in 2010, Plaintiff would
request resources through Ms. Vicki who was able to get her resources “as much as possible but
once she left that’s when resources were not provided in either direction, school or the autism
cluster program.” Ex. 1 at 29:19-30:14. Plaintiff did not ask Ms. Vicki for everything but relied
on some things to be fulfilled by the principal. Ex.1 at 31:20-32:1. Plaintiff was “under the
impression that [her] school was supposed to also include [her] on the budget.” Ex. 1 at 31:4-19.
Plaintiff did not know how money was divided up in the school budget nor did she know how
her program was funded. Ex. 4 at 53:2-126; Ex. 1 at 29:16-18. Plaintiff has failed to
demonstrate that a trier of fact could infer that any denial of resources was motivated by any
discriminatory intent or is in any way linked to her race. Accordingly, because Plaintiff has not
demonstrated any discriminatory intent with regard to her claim of racial discrimination,
summary judgment should be granted in favor of Defendant on this claim.
24
B. Plaintiff’s Retaliation Claims
Plaintiff makes claims for retaliation pursuant to Title VII, the ADA, and the
Rehabilitation Act. 11 More specifically, Plaintiff claims that she was subject to retaliation under
Title VII for protesting against the alleged disparate and adverse treatment she was accorded
because of her race, and for advocating on behalf of persons with disabilities, which is a legally
protected activity under the Rehabilitation Act and the ADA. The Court notes that Plaintiff’s
briefing on her retaliation claims in her Opposition is deficient insofar as it incorporates by
reference her argument regarding her Whistleblower claims, thereby leaving the Court to try to
divine and piece together Plaintiff’s protected activities with any materially adverse actions she
relies upon in order to prove her prima facie case. 12
1. Retaliation under Title VII
Title VII contains an anti-retaliation provision that makes it unlawful for an employer to
“discriminate against any of his employees or applicants for employment. . . because he has
opposed any practice made an unlawful employment practice by this subchapter or because he
has made a charge, testified, assisted, or participated in any manner in an investigation,
11
A retaliation claim is independent of a discrimination claim insofar as an employee may bring
a retaliation claim even when the underlying discrimination claim is unsuccessful. Childers v.
Slater, 44 F. Supp. 2d 8, 23 (D.D.C. 1999).
12
More specifically, Plaintiff contends that “[b]ecause the analysis of the harms Ms. Walker
sustained in response to her protected civil rights activities overlaps the discussion [ ] with
respect to the DCWPA, [ ] we therefore will not repeat [that analysis].” Pl.’s Opp’n at 45.
Unfortunately, the Plaintiff’s Whistleblower claim analysis does not clearly and concisely tie her
claimed protected activity to specific adverse actions that have been alleged nor does it contain
citations to the record before this Court.
25
proceeding, or hearing under this subchapter. 42 U.S.C. § 20003-3(a). To prevail on a claim of
unlawful retaliation under Title VII, “the plaintiff must allege that she engaged in activity
protected by Title VII, the employer took adverse action against her, and the employer took that
action because of the employee’s protected conduct.” Walker v. Johnson, 798 F.3d 1085, 1091-
92 (D.C. Cir. 2015) (citing Hamilton, 666 F.3d at 1357).
Similar to discrimination claims under Title VII, where allegations of retaliation are not
based on direct evidence, as here, the Court must follow the aforementioned McDonnell Douglas
burden-shifting framework, with plaintiff first carrying the burden of demonstrating her prima
facie case. “To establish a prima facie case of retaliation based on circumstantial evidence, a
plaintiff must show that (1) she engaged in statutorily protected activity; (2) she suffered a
materially adverse action by her employer; and (3) a causal link connects the two.” Doak v.
Johnson, 798 F.3d 1096, 1107 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting
Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014)). If, after the plaintiff proves her prima facie
case, the defendant proffers a legitimate, nondiscriminatory reason for its challenged action,
summary judgment in favor of defendant is appropriate if the employee fails to rebut defendant’s
reason. See Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C. Cir. 2013) (noting that “the ‘central
question’ in [the] case is whether [the plaintiff] has produced sufficient evidence for a reasonable
jury to find those reasons were but pretexts for retaliation.”) (quoting McGrath v. Clinton, 666
F.3d 1377, 1383 (D.C. Cir. 2012))).
a. Protected Activities
Plaintiff asserts that she filed five EEO complaints with LMER during the 2012-2013
school year, in which she alleged, inter alia, racial and differential treatment discrimination.
Pl.’s Countervailing Fact ¶ 21; Ex. N, Deposition of Erin Kimberly Pitts, Depo. Ex. DC 12. “It is
26
well-settled that Title VII protects informal, as well as formal, complaints of discrimination.”
Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007); see generally Woodruff, 482
F.3d 521 (filing an EEOC complaint is a protected activity). Defendant concedes that Plaintiff’s
EEO grievances are protected activities. See Def.’s Mot. at 13 n.1 (“[N]or does [the District]
argue that Plaintiff’s grievances are not protected activities.”). Accordingly, for purposes of a
claim for retaliation under Title VII, Plaintiff has satisfied the requirement of engaging in a
protected activity.
b. Adverse Actions
Adverse actions within the context of a retaliation claim encompass a “broader sweep of
actions” than in the context of a discrimination claim. Baloch v. Kempthorne, 550 F.3d 1191,
1198 n.4 (D.C. Cir. 2008); see also Pardo-Kronemann v. Donovan, 601 F.3d 599, 615 (D.C. Cir.
2010) (“The question of the ‘adversity’ required for an ‘action’ to be retaliatory naturally
depends on objective differences between the conditions before and after the [challenged
action].”). With regard to retaliation claims, actionable adverse actions are “not limited to
discriminatory actions that affect the terms and conditions of employment” but instead may
extend to harms that are not workplace-related or employment-related so long as “a reasonable
employee would have found the challenged action materially adverse.” Burlington N., 548 U.S.
at 64, 68. “In the retaliation context, instead of requiring a significant change in employment
status to constitute adversity, an action is adverse if it would have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’” Crowley v. Vilsack, 236 F.
Supp. 3d 326 (D.D.C. 2017) (quoting Burlington N., 548 U.S. at 68).
27
Review of the Possible Adverse Actions in this Case
As previously noted, Plaintiff has not set forth the adverse action(s) that allegedly support
her retaliation claims, thus, leaving it to this Court to flesh out which materially adverse action
could have resulted from her claimed protected activity, in terms of the timing of both. The
Court begins it analysis of materially adverse actions that might apply with regard to Plaintiff’s
retaliation claims by examining the adverse actions that are conceded and contested by the
Defendant. First, the District concedes that Plaintiff’s termination was an adverse action and that
a suspension from work without pay is an adverse action. Def.’s Mot. at 13 n.1. The District
argues that the following actions are not adverse actions: (1) Plaintiff’s transfer from McKinley
to Shaw in September 2011; (2) reprimands, including the November 17, 2010 threat of a write-
up by Ms. Koval and the November 23, 2010 reprimand by Mr. Pinder, as well as the April 10,
2012 leave restriction and the April 25, 2012 reprimand; (3) the claim that during the period
October 2012 through December 2012, Plaintiff experienced “inequitable distribution of
workloads, resources, and access to professional development opportunities among the races”;
(4) receipt of low performance evaluation scores; and (5) being subject to an investigation
regarding a fraudulent IEP. 13 Upon a review of the record in this case and the applicable case
law, the Court makes the following findings about each of these alleged “adverse actions.”
Plaintiff’s Transfer from McKinley to Shaw
Plaintiff was hired in 2005 as a special education teacher. Def.’s Stmt ¶ 1. When she
was transferred to Shaw, she continued as a special education teacher, albeit in a different school
with children with different special education needs. Def’s Stmt. ¶¶ 2, 10, 13. “Whether a
13
Whether the fraudulent IEP investigation is an adverse action will be considered in the context
of Plaintiff’s claim for retaliation under Title VII, under the subheading c. Investigation and
Termination.
28
particular reassignment is materially adverse depends upon the circumstances of the particular
case, and should be judged from the perspective of a reasonable person in the plaintiff’s position,
considering all the circumstances.” Burlington N., 548 U.S. at 71 (citing Oncale v. Sunflower
Offshore Serv., Inc., 523 U.S. 75, 81 (1998)). Here, Plaintiff’s transfer from McKinley to Shaw
entailed a change from being a special education teacher who taught autistic children to being a
special education teacher who taught intellectually disabled children.
Plaintiff claims that she was “forced to take on heavier work responsibilities” but being
asked to handle heavier work responsibilities does not necessarily imply an adverse action. See
generally Morales v. Gotbaum, 42 F. Supp. 3d 175, 197-200 (D.D.C. 2014). As previously
noted, Plaintiff admits that “she was told that they needed additional support at Shaw Middle
School, [t]]hey needed to reallocate funds at the time, they didn’t have a special education
teacher who could oversee . . . students with . . . an intellectual disability at Shaw Middle School
and so they needed someone to cover the classroom.” Def.’s Stmt. ¶ 11; 54. Moreover,
Plaintiff’s previously cited testimony indicates that she felt that because she had good classroom
management skills, they asked her to help out another less experienced teacher by taking on extra
work. Ex. A at 120:2-120:12.
Accordingly, Plaintiff’s transfer from McKinley to Shaw does not constitute a materially
adverse action. “While a transfer can be ‘adverse’ if the new position requires ‘significantly
different responsibilities,’” here, Plaintiff’s position at Shaw required the same or similar
responsibilities as her position at McKinley. Hernandez v. Gutierrez, 850 F. Supp. 2d 117, 122
(D.D.C. 2012) (citing Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)) (internal citation
omitted).
29
November 2010 Threat of a Write-up, Written Reprimand, and April 2012 Actions
Plaintiff’s deposition testimony indicated that she was written up for “a task that wasn’t
completed in an electronic database.” Def.’s Stmt. ¶ 3; Ex. 1 at 60:10-18; Ex. 2 at 1. Plaintiff
does not further elaborate on the November 2010 threatened reprimand and subsequent written
reprimand and the Court will not speculate as to the substance of the reprimand. 14 See Baloch,
550 F.3d 1191, 1199 (finding two letters of counseling and an official letter of reprimand
insufficient to demonstrate an adverse action where the letter lacked abusive language and
contained only job-related criticism); Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002)
(finding preparation and issuance of formal report, without “without additional disciplinary
action such as a change in grade, salary, or other benefits” which did not “in any way affect
[plaintiff’s] job performance ratings or the conditions of her employment” was not an adverse
action); Herbert v. Architect of the Capitol, 766 F. Supp. 2d 59, 77 (D.D.C. 2011) (written
reprimand insufficient for finding of adverse action where reprimand did not contain abusive
language or affect the employee’s pay, grade, or working conditions). In this case, there is no
evidence that the reprimand contained any abusive language as opposed to job-related criticism,
nor that it lead to any tangible consequences, and as such, it does not rise to the level of a
material adverse action.
Plaintiff’s deposition testimony is the only evidence that Plaintiff proffers in support of
the effects of her April 10, 2012 leave restriction. See Ex. B at 66:2-68:11 (describing the steps
she had to take in connection with a leave request, including providing doctor’s notes and calling
someone to report when she would be absent). Plaintiff does not allege that her medical leave
requests were denied, and thus, her allegations about defendant’s requests for medical
14
No copy of the written reprimand is included in the record before this Court.
30
documentation are not adverse actions. “Actionable retaliation claims are limited to those where
an employer causes ‘material adversity,’ not ‘trivial harms,’” and the plaintiff must still suffer
some objectively tangible harm. Wiley v. Glassman, 511 F.3d 151, 161 (D.C. Cir. 2007); see
generally Aldrich v. Burwell, 197 F. Supp. 3d 124, 132-33 (D.D.C. 2016) (finding that close
scrutiny or monitoring of an employee’s whereabouts — without more —does not rise to the
level of a materially adverse retaliatory action). Plaintiff does not contend that this leave
restriction caused her any objectively tangible harm. Plaintiff does not address the April 25,
2012 reprimand in her Opposition, and accordingly, the Court finds that neither the April 10,
2012 leave restriction nor the April 25, 2012 letter of reprimand constitutes an adverse action.
Inequitable Distribution of Workload and Resources Based on Race
Plaintiff claimed that during the period of October 2012 to December 2012, she
experienced an “inequitable distribution of workload, resources, and access to professional
development opportunities among the races.” Def.’s Stmt. ¶ 47a. The Court has already
analyzed this claim in connection with Plaintiff’s allegation of discrimination and determined
that this claim does not rise to the level of an adverse action because Plaintiff failed to proffer
evidence in support of this claim, instead relying solely on her own conclusions. See Ginger v.
District of Columbia, 527 F.3d 1340, (D.C. Cir. 2008) (affirming summary judgment for the
defendant where “[plaintiffs’] allegations of retaliation [were] conclusory, vague, and for the
most part unsubstantiated”); Taylor v. Small, 350 F.3d 1286, 1296 (D.C. Cir. 2003) (affirming
grant of summary judgment in favor of employer where district court found no adverse
employment action because plaintiff failed to provide evidence of her alleged change in
workload); Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999 (affirming dismissal on summary
judgment where “[plaintiff’s] claim of retaliation rest[ed] entirely upon a conclusory
31
representation” without proffering supporting facts because “[a]ccepting such conclusory
allegations as true . . . would defeat the central purpose of the summary judgment device”);
Alford v. Defense Intelligence Agency, 908 F. Supp. 2d 164, 174 (D.D.C. 2012) (granting
summary judgment because “no reasonable jury could conclude from Plaintiff’s naked,
conclusory allegations of retaliatory motive that Defendant’s asserted reasons were in fact
pretext for unlawful retaliation”); Gordon v. Beers, 972 F. Supp. 2d 28, (D.D.C. 2013) (finding
that plaintiff failed to make out prima facie case of retaliation because her unsubstantiated
conclusory statements “failed to establish the requisite causal nexus between her protected
activity” and Defendant’s allegedly adverse actions).
Performance Evaluations
Plaintiff alleges that her performance was not properly evaluated. Def.’s Stmt. ¶ 47i.
Plaintiff also claims that during the period of February 2013 through August 2013, she “received
a low performance evaluation score because of the lack of direction provided to her on future
tasks.” Def.’s Stmt. ¶ 47c. In this case, the record is completely devoid of any evidence relating
to the aforementioned employment evaluations, which are vaguely referenced in Plaintiff’s
EEOC Charge, and thus, they need not be further addressed by the Court. See also Walker v.
Johnson, 798 F.3d 1085, 1093-94 (D.C. Cir. 2015) (finding that employee’s opinion that her job
performance deserved a higher rating was insufficient, by itself, to support inference that her
supervisor had a racially discriminatory motive in making her performance evaluation).
Suspensions
Defendant does not specifically address the remaining alleged adverse actions set forth by
Plaintiff. The Court notes that two additional alleged adverse actions are mentioned by Plaintiff
in her Statement of Countervailing Facts and admitted by the District — Plaintiff received a
32
three day suspension without pay on March 29, 2013, which was later reduced, and a five day
suspension on May 17, 2013, which was later rescinded. Pl.’s Countervailing Facts ¶¶ 163-164,
Pl.’s Opp’n, Ex. I (Mar. 8, 2016 Pitts Dep.) at 62:5-63:10; Pl.’s Countervailing Facts ¶¶ 166-167,
Ex. I at 65:19-67:12. Where a suspension is proposed but not actually served, courts have been
unwilling to find adverse actions. Baloch, 550 F.3d at 1199; see Whittacker, 424 F.3d at 647
(“[A] suspension without pay that is never served does not constitute an adverse employment
action.”). Accordingly, while the five day suspension was rescinded and thus would not
constitute an adverse action, there is an issue of fact about whether any part of the three day
suspension without pay was served and as such, the Court leaves standing the question as to
whether this suspension could constitute a materially adverse action for purposes of Plaintiff’s
retaliation claims, assuming Plaintiff proffers a connection between her protected activity and
this suspension.
c. Investigation and Termination
In this case, the Court finds that the investigation into Plaintiff’s alleged filing of a
fraudulent IEP, resulting in the subsequent termination of her employment is a materially adverse
action. In proceeding on her retaliation claim under Title VII, Plaintiff’s protected activity was
the filing of five EEO complaints, dated October 11, 2012 through May 20, 2013, with LMER.
The EEO complaints were filed against Mr. Gendre and Ms. Dykstra on claims of, inter alia,
differential treatment, discrimination and retaliation. See Pl.’s Opp’n, Ex. N (Pitts April 18,
2016 Dep. Exs.), DC 12- DC 16.
Plaintiff claims that the resulting adverse action was the investigation into her alleged
filing of a fraudulent IEP. According to the Plaintiff, during winter break in December 2012 –
January 2013, Mr. Gendre and Ms. Dykstra reported the action taken by Plaintiff on December
33
20, 2012 to “finalize” M.W.’s IEP absent a meeting. Pl.’s Opp’n at 36. This triggered an
investigation of Plaintiff’s actions by DCPS that commenced in January 2013 and resulted in a
March 2013 investigative report that was deemed by DCPS’s Office of General Counsel as
“insufficient” with “revisions needed.” Pl.’s Countervailing Fact ¶ 138; Pl.’s Opp’n, Ex. I (Pitts
Dep. Exs.), Ex. 22 (Investigative Report). The final Investigative Report was completed on June
12, 2013, and it was determined to be legally sufficient to support the allegations against
Plaintiff. Pl.’s Countervailing Fact ¶¶ 143, 144. On August 8, 2013, Ms. Pitts issued a letter
terminating Plaintiff’s employment. Def.’s Stmt. ¶ 42.
A review of Plaintiff’s Statement of Countervailing Facts relating to the investigation into
the allegedly fraudulent IEP indicates that Plaintiff raises genuine issues regarding: (1) the
manner in which the investigation was conducted, including but not limited to allegations
regarding certain evidence was not considered, and (2) whether the discipline that was imposed
on Plaintiff; i.e., termination of employment, was out-of-line with discipline imposed in other
cases that were considered by the District. See Pl.’s Countervailing Facts ¶¶ 112, 113, 118-121,
130, 131, 139, 140-142, 147, 170-171, 173, 175-178. Consequently, the Court finds the Plaintiff
has proffered enough evidence for a reasonable trier of fact to find that she has established a
materially adverse action for purposes of proving her prima facie case on her claim for
retaliation pursuant to Title VII.
d. Causality
To demonstrate causality in the Title VII context, “traditional principles of but-for
causation” apply, and the plaintiff must show “that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “The causal connection
34
component of the prima facie case may be established by showing that the employer had
knowledge of the employee’s protected activity, and that the adverse personnel action took place
shortly after that activity.” Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985). In this case,
Ms. Pitts, who served as DCPS’s director of Labor Management and Employee Relations from
March 2012 to October 2015, and was on the review panel participating in the decision to
terminate Plaintiff’s employment, was aware of Plaintiff’s EEO complaints, and Ms. Dykstra, the
Assistant Principal at Shaw, and Mr. Gendre, Shaw’s Principal, were also aware of the
complaints, as they were named therein. Pl.’s Countervailing Facts ¶¶ 103-104. “[T]emporal
proximity between an employee’s protected activity and her employer’s adverse action is a
common and often probative form of evidence of retaliation.” Walker, 798 F.3d at 1092.
“[C]ases that accept mere temporal proximity between an employer’s knowledge of protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be ‘very close.’” Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (quotation omitted).
In the instant case, there can be no dispute that temporal proximity establishes causality
as Plaintiff filed her EEO complaints with LMER on: October, 2012; December 17, 2012;
February 15, 2013; April 10, 2013; and May 20, 2013, and the investigation into the fraudulent
IEP, which started in January 2013, resulted in a report in March 2013, which was amended and
reissued in June 2013. While the Defendant did not officially terminate Plaintiff’s employment
until August 2013, that delay was attributable to Defendant and no explanation for the delay was
provided. See Pl.’s Countervailing Fact ¶ 150. Accordingly, a reasonable trier of fact could
conclude that Plaintiff has met her burden of proving a prima facie case based on her proffered
evidence with regard to her protected activity and the materially adverse action, due to the
35
temporal proximity between the two. Defendant does not argue non-retaliatory justification for
its actions, and as such, the Court finds that summary judgment on Plaintiff Title VII retaliation
claim should be denied.
2. Retaliation under the ADA and the Rehabilitation Act
Plaintiff seeks to proceed against the District on a claim for retaliation under the
Rehabilitation Act and the ADA. Section 504 of the Rehabilitation Act provides that:
No otherwise qualified individual with a disability in the United States . . . shall solely by
reason of his or her disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance or under any program or activity conducted by any Executive
agency or by the United States Postal Service.
Section 504, 29 U.S.C. § 794(a).
With regard to educational programs, the federal regulations implementing Section 504
require that students who have disabilities be given equal access to public schools and receive a
“free appropriate public education” (“FAPE”) without regard to the nature or severity of their
disabilities. 34 C.F.R. § 104.33. Furthermore, a school district has an affirmative duty to
identify, locate, and evaluate all children with disabilities. 34 C.F.R. §§ 104.32, 104.35.
The ADA prohibits public entities from excluding qualified individuals with disabilities
from participating in or receiving benefits of “the services, programs, or activities” of that entity.
42 U.S.C. § 12132. The ADA retaliation provision states that: “No person shall discriminate
against any individual because such individual has opposed any act or practice made unlawful by
this chapter or because such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
Courts frequently interpret the ADA and the Rehabilitation Act the same way. Alston v. District
of Columbia, 561 F. Supp. 2d 29, 39 (D.D.C. 2008).
36
Even though Plaintiff is not claiming a disability under either the ADA or Rehabilitation
Act, she is entitled to proceed under those statutes under a claim of retaliation. See Reinhardt v.
Albuquerque Pub. Schools Bd. of Educ., 595 F.3d 1126 (10th Cir. 2010) (where plaintiff was
advocating on behalf of disabled students and brought a claim for retaliation); Barker v.
Riverside Cty. Office of Ed., 584 F.3d 821, 826 (9th Cir. 2009) (a plaintiff who is attempting to
protect the rights of disabled people has standing to sue for retaliation under the Rehabilitation
Act); Wright v. Compusa, Inc., 352 F.3d 472, 477 (1st Cir. 2003) (finding that an ADA plaintiff
need not succeed on a disability claim to assert a retaliation claim).
Because the test for retaliation under the ADA and the Rehabilitation Act was originally
developed in the context of employment discrimination, the standards articulated in employment
discrimination cases apply. See Alston, 561 F. Supp. 2d at 40; Mitchell, 759 F.2d at 86 (D.C.
Cir. 1985). To establish a prima facie case of retaliation under either of these statutes requires
the plaintiff to show that she (1) engaged in a protected activity; (2) was subjected to an adverse
employment action; and (3) there was a causal link between the protected activity and the
adverse action. Hamilton, 666 F.3d at 1357; Woodruff, 482 F.3d at 529; Mayers v. Laborers’
Health & Safety Fund of N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007). Retaliation claims do not
protect an individual “from all retaliation, but from retaliation that produces an injury or harm[.]”
Burlington N., 548 U.S. at 67.
a. Protected Activity
For purposes of proceeding with a retaliation claim pursuant to the ADA and
Rehabilitation Act, Plaintiff alleges that her advocacy on behalf of her students is the protected
activity. Pl.’s Opp’n at 43. Plaintiff makes little, if any, effort however to link her protected
activity to a subsequent adverse action. Instead, Plaintiff “respectfully refer(s) the Court to the
37
detailed listing [in the analysis of her DC WPA claim], and in the accompanying statement of
genuine issues and countervailing facts, of the many instances in which Ms. Walker complained
about why th[e] lack of resources [was] preventing her from providing a FAPE to her students,
as required by the [Individuals with Disabilities in Education Act] IDEA, as well as her other
complaints about IEP implementation failures and safety issues at Shaw, and their significant
(and disproportionate) impact upon her particularly vulnerable students.” Id. Plaintiff relies on
her own conclusory statements to support her claim that advocacy is a protected activity, without
providing specific information as to when and where this advocacy occurred and what kind of
alleged adverse actions resulted from engaging in such advocacy.
The Court notes that not all activity a teacher undertakes on behalf of her special
education students constitutes protected activity; rather, such activity must go beyond merely
assisting special education students which is part of the teacher’s job duties. “It is clear from the
case law that protected activity does not include mere assistance of special education students,
but, rather, requires affirmative action in advocating for, or protesting discrimination related to,
unlawful conduct by others.” Montanye v. Wissahickon Sch. Dist., 218 F. App’x. 126, 131 (3rd
Cir. 2007); see also Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1132 (10th
Cir. 2010) (agreeing with the Ninth and Third Circuits that attempting to protect the rights of
special education students is protected activity under the Rehabilitation Act); Falash v. Inspire
Academics, Inc., No. 14-cv-00223, 2016 WL 4745171, at *4 (D. Idaho Sept. 12, 2016) (opining
that plaintiff’s actions to ensure that special education students’ needs were being met under their
IEPs and logging information to ensure compliance with reporting requirements was not
protected activity while advocating on behalf of the students was protected activity).
38
Because Plaintiff has only provided this Court with vague narratives and conclusory
allegations to support her claim that her continuing advocacy is the protected activity under her
retaliation claim, and further, that such advocacy is linked to some adverse action, the Court is
again placed in the position of having to piece together the elements of Plaintiff’s prima facie
case for her retaliation claim. Accordingly, to try to clarify the type of advocacy that Plaintiff
engaged in on behalf of her students, this Court has reviewed the Plaintiff’s deposition excerpts
that were provided by the Plaintiff as exhibits to her Opposition, which is the only sworn
testimony by Plaintiff on record since no affidavit was provided. The Court has also reviewed
Plaintiff’s Countervailing Facts and cites to any relevant record evidence contained therein. As
such, the Court has found the following example of Plaintiff’s advocacy that is supported by her
sworn testimony, as follows.
Plaintiff testified that many of the students who were transferring had lawyers, and she
made recommendations to them regarding her students. Ex. B at 65:5-15. The attorneys were
appreciative that she was “open and honest,” but she knew she was going to get some “backlash
from the administrators.” Ex. B at 65:16-22.
At a February 15, 2012 IEP review meeting, she informed the team (included the
student’s parent and attorney) that a particular student was not receiving an appropriate level of
instruction. Pl.’s Countervailing Fact ¶ 3; Ex. A at 105:3-106:10. 15 On March 12, 2012, Shaw
Assistant Principal DeMatthews sent a memorandum indicating that:
From this point forward, special education teachers are not to communicate with
attorneys or advocates in any way [ex]cept for scheduling meetings. The purpose of the
meeting can and should be stated with attorneys/advocates. However, teachers must not
15
In connection with her Countervailing Fact, Plaintiff cites Pl.’s Opp’n, Ex. J (Feb. 15, 2012
MDT Meeting Notes), wherein it is noted that Plaintiff “expressed that she needs additional
resources to accommodate the children in her classroom” and “spoke to the inconsistencies in the
behavior supports within the school.”
39
share any new IEP information with the attorney prior to the meeting. Direct all
questions, comments or concerns to Ms. Douglas or myself.
Ex. K; see Ex. A at 106:10-22. Notably, this policy applied uniformly to all special education
teachers.
Plaintiff testified that at some point after that meeting, during that school year, Shaw
Assistant Principal DeMatthews gave Plaintiff low performance evaluation scores, which were
inconsistent with prior scores she had received. Ex. A at 107:1-108:4. Plaintiff testified that that
evaluation did not “change the money at that point” because it was all calculated at the end of the
school year based on an average of the scores. Ex. A at 108:5-14. At the end of the school year,
Plaintiff had a “step hold” in her pay. Ex. A at 108:15-22; Pl.’s Countervailing Fact ¶ 9.
Plaintiff complained further of being “micromanag[ed] by Ms. Douglas” and being
questioned about her health by Mr. DeMatthews after she took some sick leave, and then being
asked to provide doctor’s notes and call Ms. Douglas’s cell phone if she was going to take sick
leave. Ex. B at 66:5-68:11; Pl.’s Countervailing Fact ¶ 8.
From the record in this case, the discrete instance of Plaintiff’s advocacy on behalf of her
students can be characterized as Plaintiff reaching out to the lawyer who represented her disabled
student in an effort to facilitate and ensure the student’s receipt of services under his IEP. These
actions go beyond the scope of mere assistance to her students, and they put Plaintiff at odds
with her employer, DCPS, which is tasked with providing FAPE to students. As such, Plaintiff’s
advocacy could be construed as a protected activity for purposes of her retaliation claims under
the ADA and the Rehabilitation Act.
b. Adverse Action
To prove her prima facie case, Plaintiff next needs to tie this protected activity to a
resulting adverse action. Again, looking at the record in this case, the alleged adverse actions
40
that followed Plaintiff’s protected activity would be the “enhanced” leave policy and
micromanagement that Plaintiff was allegedly subjected to by the Shaw administration, which
were previously considered by this Court herein and determined not to be adverse actions. That
leaves only the issue of Plaintiff’s receipt of low evaluation scores from Assistant Principal
DeMatthews, “[a]t some point in the year.” See Ex. A at 107:1-7.
Plaintiff concedes that the low evaluation scores did not have any immediate effect on
her. Ex. A at 108:5-14. In general, unsatisfactory performance reviews and written
admonishments that contain no abusive language, but rather job-related constructive criticism
without tangible consequences, are not actionable. See Baloch, 550 F.3d at 1199; see also Weber
v. Battista, 494 F.3d 179, 185-86 (D.C. Cir. 2007) (evaluations were “adverse actions insofar as
they resulted in [plaintiff] losing a financial award or an award of leave because a reasonable
jury could conclude that such a loss could well dissuade a reasonable worker from making or
supporting a charge of discrimination,”) (internal quotation marks and citation omitted); Brown v
Snow, 440 F.3d 1259, 1265 (11th Cir. 2006) (“A lower score on [the employee’s] performance
evaluation, by itself, is not actionable . . . unless [the employee] can establish that the lower score
led to a more tangible form of adverse action, such as ineligibility for promotional
opportunities.”).
With regard to the low evaluation scores, Plaintiff testified that “it’s interesting because if
you look at patterns, even going back to McKinley, like it starts off strong and then at some point
in the school year where there’s some behind the scenes, you know, friction going on for reasons
that I’m mentioning, the evaluation scores just like, plummet.” Ex. A at 107:1-13. Plaintiff
further testified that she had received several prior evaluation scores — two from central office
and three from the administrators — and with the two prior scores from Mr. DeMatthews, when
41
the first one was good and the second one was low, she “[thought] there was some things going
on.” Ex. A at 107:14-108:4. Plaintiff testified further that the school calculated an average of all
scores to see if a teacher met the criteria and she thought she had a “step hold’ in her pay at
Shaw. Ex. A at 108:8-19. Plaintiff could not recollect whether it was “from the first or second
year.” Ex. A at 108:15-22.
Plaintiff’s testimony is that the low evaluation scores received from Mr. DeMatthews at
some point may have led to a step hold at Shaw, but she was uncertain about the dates, and
whether it was at Shaw, and if so, during which year. Plaintiff has not demonstrated that the
evaluation scores given by Assistant Principal DeMatthews caused a tangible consequence in her
circumstances so as to constitute a materially adverse action per the standard set forth in
Burlington N., 548 U.S. at 68, i.e., there was an action that would “dissuade[ ] a reasonable
worker from making or supporting a charge of discrimination.” 548 U.S. at 68 (quoting Rochon
v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
Furthermore, in terms of tying together Plaintiff’s February 15, 2012 advocacy with her
allegedly consequent low evaluation scores, which affected her cumulative evaluation scores and
later contributed to a step hold in Plaintiff’s pay at the end of the school year, there are problems
not only with the tenuous nature of the connection between the protected activity and resulting
adverse action but also with the proximity of the two. See Hamilton, 666 F.3d at 1357-58
(stating the Supreme Court has suggested that “in some instances a three-month period between
the protected activity and the adverse employment action may, standing alone, be too lengthy to
raise an inference of causation” but that the Supreme Court has not “established a bright-line
three-month rule”); Clark Cty. Sch. Dist., 532 U.S. at 273-74 (An adverse employment action
that occurs even three or four months after a protected activity often is not close enough to
42
suggest a causal connection.). Accordingly, Plaintiff fails to make a prima facie case regarding
her claim for retaliation under the ADA and the Rehabilitation Act.
C. Plaintiff’s Whistleblower Claims
The DC WPA protects District employees’ right to report waste, fraud, abuse of
authority, violations of law, or threats to public health or safety without fear of retaliation or
reprisal. See D.C. Code § 1-615.51, et seq. DC WPA claims are analyzed under a burden
shifting analytical framework. Payne v. District of Columbia, 4 F. Supp. 3d 80, 85-86 (D.D.C.
2013). A plaintiff must demonstrate that he: (1) made a protected disclosure; (2) his supervisor
took or threatened to take a prohibited personnel action against him; and (3) the protected
disclosure was a contributing factor to the retaliation or prohibited personnel action. Tabb v.
District of Columbia, 605 F. Supp. 2d 89, 98 (D.D.C. 2009) (citing Crawford v. District of
Columbia, 891 A.2d 216, 218-19 (D.C. 2009). After the plaintiff demonstrates these three
elements by a preponderance of the evidence, “the burden shifts to the defendant ‘to prove by
clear and convincing evidence that the alleged [prohibited personnel] action would have occurred
for legitimate, independent reasons even if the employee had not’ made the protected
disclosure.” Bowyer v. District of Columbia, 793 F.3d 49, 52 (D.C. Cir. 2015) (citing D.C. Code
§ 1-615.54(b)); see Winder v. Erste, 905 F. Supp. 2d 19, 33 (D.D.C. 2012) (discussing burden
shifting in DC WPA cases). If the defendant carries its burden, the burden shifts back to plaintiff
to show that the explanation was pretext. See id.
To come within the framework of the DC WPA; the employee must make a “protected
disclosure,” which is defined as:
any disclosure of information, not specifically prohibited by statute, without restriction to
time, place, form, motive, context, forum, or prior disclosure made to any person by an
employee . . . including a disclosure made in the ordinary course of an employee’s duties
. . . to a supervisor or a public body that the employee reasonably believes evidences:
43
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the administration of a public program or the
execution of a public contract;
(D) A violation of federal, state, or local law, rule, or regulation, or of a term of a contract
between the District government and a District government contractor which is not of a
merely technical or minimal nature; or
(E) A substantial and specific danger to the public health and safety.
See D.C. Code § 1-615.52(a)(6).
This Circuit has noted that, “in retaliation cases, [ ] whether the employee plaintiff
engaged in a protected activity is a ‘fact specific inquiry.’” Williams v. Johnson, 776 F.3d 865,
870 (D.C. Cir. 2015) (citing Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005). The
District of Columbia Court of Appeals has explained that a disclosure is protected under the DC
WPA if it reveals “such serious errors by the agency that a conclusion the agency erred is not
debatable among reasonable people.” Wilburn v. District of Columbia, 957 A.2d 921, 925
(2008) (quoting White v. Dept. of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004)). To
determine whether an individual possessed a reasonable belief that such errors constituted gross
misconduct, abuse, or were illegal, “the proper test is [whether] ‘a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the employee [could]
reasonably conclude that the actions of the government evidence [illegality].’” Zirkle v. District
of Columbia, 830 A.2d 1250, 1259-60 (D.C. 2003) (internal quotation marks omitted) (quoting
LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
In its Motion, Defendant argues that Plaintiff’s disclosures about, inter alia, the schools’
failures to provide adequate teaching resources and inadequate working conditions are not
44
protected disclosures pursuant to subsections (A) and (C) of D.C. Code Section 1-615.52(a)(6),
relating to gross mismanagement and abuse of authority. The District argues further that with
regard to Plaintiff’s disclosures, “the already public nature of the alleged disclosures makes clear
that they are not protected disclosures under the DC WPA.” Def.’s Mot. at 29; see Def.’s Stmt. ¶
28 (“It was “well known prior to Plaintiff’s alleged disclosures that McKinley and Shaw had
budgetary constraints and often could not provide its teachers, including its special education
teachers, adequate teaching materials and resources.”) 16
Plaintiff indicates however that she is proceeding pursuant to subsections (D) and (E),
relating to “violations of law” and “violations of federal law,” respectively. 17 Pl.’s Opp’n at 30.
Plaintiff notes further that her protected disclosures are not limited to denial of resources needed
to maintain an effective special education program but also include D.C.’s failure to implement
the students’ IEPs, in violation of the IDEA, and safety issues at Shaw. Accordingly, because
the District assumed that Plaintiff was proceeding under subsections (A) and (C), with
disclosures limited to claims of insufficient “resources,” while Plaintiff is actually proceeding
under subsections (D) and (E), with disclosures involving a denial of resources that relate to
fulfillment of the students’ IEPs and the District’s compliance with the IDEA, and also to safety
issues at Shaw, the vast majority of arguments raised by the District in its Motion are not
applicable to Plaintiff’s DC WPA claim.
In its Reply, the District characterizes Plaintiff’s purported disclosures as advocacy on
behalf of her students. Def.’s Reply at 4 (emphasis added). The fact specific question here is
whether Plaintiff’s disclosures are the kinds of revelations the DC WPA is meant to protect. In
16
This statement was denied by Plaintiff.
17
Plaintiff’s Opposition erroneously refers to subsection (E) as relating to violation of federal
law, when (E) pertains to a substantial danger to public health and safety. Pl.’s Opp’n at 30.
45
this case, it is uncontested by the District that Plaintiff’s purported disclosures about non-
compliance with the IDEA fit within subsection (D) of the DC WPA. The District does however
contest that Plaintiff’s “complaints that management tolerated an unsafe school environment at
Shaw” rise to the level of protected activity because these complaints “do not involve violations
by management of local or federal law.” Def.’s Reply at 5. Concerns about school safety issues
do not necessarily fall within the “violation of law” or “violation of federal law” section(s) under
which Plaintiff is proceeding, and therefore, the issue of whether these are protected disclosures
would best be left to a trier of fact to determine. Plaintiff does not however demonstrate any
causal link between these alleged protected disclosures and any prohibited personnel action, and
thus this claim fails.
In contrast, this Court finds that Plaintiff’s complaint about the District’s non-compliance
with the IDEA fits squarely within the DC WPA. Accordingly, Plaintiff’s claims that students
were not receiving resources and services compatible with their IEPs and the District was
therefore not in compliance with the IDEA are protected disclosures for purposes of the DC
WPA
In terms of showing that Plaintiff was subjected to an adverse personnel action, Plaintiff
again relies on a veritable laundry list of potential prohibited personnel actions interspersed with
extraneous facts that are not material to this issue. These alleged prohibited personnel actions
include: (1) her involuntary assignment to Shaw, where she was tasked with a heavy workload;
(2) her performance evaluations at the end of the 2011-2012 school year, whereby she received a
step hold in her pay after she protested the restrictions on communications with counsel imposed
by Assistant Principal DeMatthews; and (3) a false report by Mr. Gendre and Ms. Dykstra that
46
Ms. Walker had prepared a “fraudulent IEP” that led to the termination of her employment. 18
This Court has already analyzed and rejected the first two of these alleged prohibited personnel
actions herein, and the Court has also determined that the investigation into the allegedly
fraudulent IEP, which led to Plaintiff’s termination has been deemed to qualify as an adverse
action.
Accordingly, with regard to Plaintiff’s DC WPA claim, the remaining question before
this Court is whether the protected disclosure was a contributing factor to the retaliation or
prohibited personnel action. While the Plaintiff’s protected disclosure admittedly spanned a
period of several years, it was not until the period of October 11, 2012 through May 20, 2013,
that Plaintiff filed her five EEO grievances with LMER, in which she complained about
numerous acts of alleged discrimination and retaliation including the denial of resources that
made compliance with her students’ IEPs possible. These EEO grievances specifically named
Ms. Dykstra and Mr. Gendre, the two people who consequently reported Plaintiff’s allegedly
fraudulent IEP activity, which triggered a January 2013 investigation that ultimately led to the
termination of her employment.
“A plaintiff may show causation through direct evidence or circumstantial evidence,
such as by showing that the employer had knowledge of the employee’s protected conduct and a
close temporal proximity between the employer’s knowledge and the adverse actions.” Rattigan,
503 F. Supp. 2d at 77; see also Clayton v. District of Columbia, 931 F. Supp. 2d 192, 203
(D.D.C. 2013) (finding two-month period between employee’s protected conduct and adverse
action could be sufficient to show temporal causal connection). However, “[a]n inference of
18
Plaintiff also provides unnecessary commentary regarding “pre-meetings” among school staff
prior to an IEP meeting without arguing that information about such pre-meetings may be
construed as a protected disclosure.
47
retaliation cannot rest solely on ‘temporal proximity’ (even it if is established) where the
opportunity for retaliation conflicts with the opponent’s explicit evidence of an innocent
explanation of the event.” Johnson v. District of Columbia, 935 A.2d 1113, 1120 (D.C. 2007);
compare Nunnally v. District of Columbia, 243 F. Supp. 3d 55, 71-72 (D.D.C. 2017) (finding
that Plaintiff sufficiently showed causation where one to two months passed between Plaintiff’s
protected disclosures and alleged adverse employment actions and Defendant did not dispute that
Plaintiff’s supervisors were aware of her complaints, blog entries and letters to elected officials),
with Payne v. District of Columbia Government, 722 F.3d 345, 354 (D.C. Cir. 2013) (finding
that, without additional pertinent evidence, eight month gap between protected activity and
alleged retaliation did not constitute “‘temporal proximity’ that supports a causal connection
between the two” and “[t]he fact that one event precedes another does not in itself evidence
causation.”). With respect to alleged retaliatory acts several months removed from an employee’s
protected activity, “[the D.C.] Circuit has made it clear that there is a point in time where
temporal proximity becomes too remote, without more, to permit an inference of causation,” and
this analysis can apply similarly to an employee’s DC-WPA claims and her claims of retaliation.
Booth v. District of Columbia, 701 F. Supp. 2d 73, 79, 81 (D.D.C. 2010) (finding that “claims
premised on alleged retaliatory actions over four months after plaintiffs’ protected activity do not
permit an inference of causation. . . . [A]bsent additional evidence of causation, which is lacking
here, these claims must fail.”) (citing Johnson, 935 A.2d at 1120).
Here, the Defendants do not dispute that they were aware of the EEO grievances Plaintiff
filed with LMER, and the subsequent January 2013 investigation triggered by Ms. Dykstra’s and
Mr. Gendre’s report of Plaintiff’s allegedly fraudulent IEP activity occurred approximately three
months after the first EEO grievance that Plaintiff filed, and within weeks after the second.
48
Given the close temporal relationship between the Defendant’s knowledge of Plaintiff’s
protected disclosures and the alleged adverse employment action, the Court finds that Plaintiff
has shown sufficient circumstantial evidence to show causation. Plaintiff has met the burden of
proof necessary to prove her prima facie case, and because Defendant has not attempted to
demonstrate that the investigation and termination would have occurred for legitimate,
independent reasons even if Plaintiff had not made the protected disclosure, summary judgment
should be denied on this claim.
D. Exhaustion
Defendant asserts that Plaintiff’s claims pre-dating August 19, 2011, which are
mentioned in Plaintiff’s EEOC Charge, which was filed on June 19, 2012 and amended on May
16, 2014, should be barred for Plaintiff’s failure to exhaust her administrative remedies. This
includes the November 10, 2010 threat to reprimand and the November 23, 2010 written
reprimand. The Court does not reach Defendant’s administrative exhaustion arguments with
respect to Plaintiff’s claims pre-dating August 19, 2011. These claims have been dismissed on
the merits and accordingly, the Court need not resolve whether they are also appropriately
dismissed on the basis of administrative exhaustion, which is an affirmative defense and non-
jurisdictional. Boden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“untimely exhaustion
of administrative remedies is an affirmative defense”); Artis v. Bernanke, 630 F.3d 1031, 1034
(D.C. Cir. 2011) (“Title VII’s exhaustion requirements are not jurisdictional”).
The District argues that Plaintiff’s claim regarding the August 2013 withdrawal of its
offer for her to work at Ludlow Elementary School is not actionable since it is not set forth in the
May 16, 2014 EEOC Charge. The Court finds the District’s argument disingenuous insofar as
the District was certainly on notice that Plaintiff, an employee of one D.C. public school who
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had an offer of employment from another D.C. public school had her employed terminated by
DCPS, and accordingly, withdrawal of the pending employment offer followed.
IV. CONCLUSION
Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART Defendant’s [54]
Motion for Summary Judgment. Specifically, the Court shall grant Defendant’s Motion for
Summary Judgment with regard to Plaintiff’s racial discrimination claim under Title VII and her
claim for retaliation under the ADA and the Rehabilitation Act, but shall deny Defendant’s Motion
for Summary Judgment with regard to Plaintiff’s claim under the D.C. Whistleblower Protection
Act and for retaliation under Title VII.
An appropriate Order accompanies this Memorandum Opinion.
DATED: September 30, 2017
/s/ _
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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