Berry v. Coastal International Security, Inc. ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
THEODORE BERRY, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1420 (ABJ)
)
COASTAL INTERNATIONAL )
SECURITY, INC. )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Theodore Berry brought this employment discrimination action against defendant
Coastal International Security, Inc. (“CIS”), alleging that defendant discriminated against him
based on his national origin (African American) and his age, in violation of Title VII of the Civil
Rights of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff also claims that defendant retaliated
against him in violation of the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2–1401.01 et
seq., Title VII, and the ADEA by suspending, transferring, and demoting him after he complained
about the alleged discrimination. See 2d Am. Compl. [Dkt. # 58] ¶¶ 33–128. Defendant moved
for summary judgment on the original complaint, and it supplemented its motion after the Court
granted plaintiff’s motion for leave to file a second amended complaint. Def.’s Mot. for Summ. J.
(“Def.’s Mot.”) [Dkt. # 38]; Def.’s Suppl. Mot. for Summ. J. [Dkt. # 61] (“Def.’s Suppl. Mot.”);
Def.’s Mem. of P. & A. in Supp. of Def.’s Suppl. Mot. [Dkt. # 61-1] (“Def.’s Suppl. Mem.”). In
response, plaintiff has attempted to show that CIS employed its disciplinary process unfairly. But
the Court concludes that plaintiff has been unable to come forward with evidence to rebut the
defendant’s legitimate non-discriminatory reasons for its employment decisions – that plaintiff
repeatedly violated CIS’s rules and procedures and acted unprofessionally. And with respect to
retaliation, plaintiff cannot show the necessary causal connection between the filing of his original
age discrimination complaint and his ultimate suspension, transfer, and demotion.
Throughout the pendency of this case, the Court has given plaintiff the benefit of every
doubt and afforded him opportunities to add allegations to his complaint, to undertake long-
overdue discovery even after the time for discovery had closed, and to supplement his opposition
to the motion for summary judgment to bring it into compliance with the federal and local rules
governing civil litigation. Plaintiff clearly feels aggrieved, and he has been emphatic in advancing
his point of view that he was treated unfairly. But we are no longer at the pleading stage, and at
this juncture, in the face of defendant’s motion for summary judgment, the onus is on the plaintiff
to point to proven fact – evidence in the record – that supports his claims. Notwithstanding the
amount of time he has had to do that – including a considerable period of time when he was
represented by counsel – he has failed to marshal the necessary evidence. For those reasons, the
Court will grant defendant’s motion.
BACKGROUND
I. Procedural History
Plaintiff filed a complaint in Superior Court on July 13, 2012, alleging age discrimination
and retaliation in violation of the District of Columbia Human Rights Act, D.C. Stat. § 14–201.11.
Superior Ct. Compl. [Dkt. # 1-2]. Plaintiff was represented by counsel at that time. Defendant
removed the action to this Court on August 27, 2012, and moved to dismiss the complaint on the
grounds that plaintiff’s employment with the defendant was covered by a collective bargaining
agreement, and the claims were pre-empted by the Labor Management Relations Act, 29 U.S.C.
§ 185. See Notice of Removal [Dkt. # 1]; Def.’s Mot. to Dismiss [Dkt. # 2]. On September 11,
2
2013, the Court granted defendant’s motion as to the age discrimination claim, finding that the
claim was founded upon rights created by the agreement and therefore completely pre-empted.
See Order (Sept. 11, 2013) [Dkt. # 6]; Mem. Op. (Sept. 11, 2013) [Dkt. # 7]. But the Court denied
the motion to dismiss the retaliation claim because it found that the rights plaintiff sought to
vindicate in that count were independent of the collective bargaining agreement. See id.
When the Court asked the parties to address whether it should continue to exercise
jurisdiction over the remaining state law count, plaintiff advised the Court that he intended to
amend the complaint to add federal claims, and the Court gave plaintiff until October 24, 2013 to
file a motion for leave to amend. See Min. Order (Oct. 10, 2013).
But before that motion was filed, the parties agreed to stay the case while plaintiff awaited
receipt of a Notice to Sue letter from the EEOC. Pl.’s Mot. to Stay [Dkt. # 12]. When the stay
was lifted, plaintiff filed an amended complaint with defendant’s consent. See Min. Order (Nov.
20, 2013); Am. Compl. [Dkt. # 16]. The Amended Complaint asserted retaliation claims under
the DCHRA, and added claims of age and national origin discrimination under Title VII and the
ADEA. Am. Compl. ¶¶ 88–113. Defendant answered that complaint, and after an initial
scheduling conference was held on February 3, 2014, the case moved into the discovery phase.
Answer [Dkt. # 17]. 1
In July of 2014, plaintiff’s attorney moved to withdraw. Mot. to Withdraw/Strike
Appearance [Dkt. # 30]. The Court then granted plaintiff, proceeding pro se, two extensions to
complete discovery. Min. Order (Aug. 14, 2014); Min. Order (Dec. 24, 2014).
1 Plaintiff filed a motion for leave to file a Second Amended Complaint on April 29, 2014,
See Mot. to File 2d Am. Compl. [Dkt. # 22], but he later withdrew the motion. Withdrawal of
Pl.’s Mot. for Leave to File 2d Am. Compl. [Dkt. # 28].
3
During discovery, after the Court resolved a discovery dispute, see Min. Order (Nov. 14,
2014), plaintiff moved for reconsideration of the Court’s ruling. Mot. for Recons. [Dkt. # 35]. As
part of that motion, plaintiff alerted the Court to a “new development” in the case: the D.C. Office
of Human Rights had recently dismissed plaintiff’s second EEO complaint. Id. at 1. The Court
denied plaintiff’s motion for reconsideration, but noted that “in light of all the circumstances,”
plaintiff would be permitted to file a motion for leave to amend his complaint. Order (Jan. 5, 2015)
[Dkt. # 41].
In the interim, defendant filed its motion for summary judgment on the pending claims,
Def.’s Mot., and defendant, still pro se, responded on January 28, 2015. Pl.’s Resp. in Opp. to
Def.’s Mot. [Dkt. # 43]. Plaintiff also filed a motion for leave to amend the complaint, and, in
light of that motion, the Court stayed the remaining briefing deadlines. Pl.’s Mot. for Leave to
File Am. Compl. [Dkt. # 42]; Min. Order (Feb. 9, 2015).
On June 3, 2015, plaintiff secured new counsel who remained in the case thereafter. Notice
of Appearance [Dkt. # 46]. On July 24, 2015, the Court granted in part and denied in part the
motion for leave to amend, permitting the plaintiff to add certain allegations but not others. See
Mem. Op. & Order (July 24, 2015) [Dkt. # 49]. Plaintiff was authorized to undertake discovery
on the new claims, and he was directed to file a revised version of the second amended complaint
that comported with the Memorandum Opinion and Order. Id; see also Order (Aug. 17, 2015)
[Dkt. # 53]; Min. Order (Oct. 22, 2015) (granting in part and denying in part plaintiff’s Motion for
Extension of Time To Complete Discovery); and Min. Order (Oct. 29, 2015) (granting plaintiff’s
Motion for Leave to File Deposition Notices).
4
After several unsuccessful efforts, plaintiff eventually filed a Second Amended Complaint
that conformed to the Court’s Order. 2d Am. Compl. [Dkt. # 58]. 2 The complaint includes six
counts: the age discrimination count that was previously dismissed (Count I); retaliation in
violation of the DCHRA (Count II); national origin discrimination in violation of Title VII (Count
III); retaliation in violation of the ADA (Count IV); age discrimination in violation of the ADEA
(Count V); and retaliation in violation of Title VII. 2d Am. Compl. ¶¶ 94–128. After discovery
was finally complete, the Court established a schedule resuming the briefing on defendant’s
originally filed motion for summary judgment, as well as its supplemental motion seeking
judgment on the new claims, which had been filed on October 16, 2015. The Court specifically
directed the parties’ attention to Local Civil Rule 7(h)(1) and the scheduling order in the case
which detailed the requirements for an opposition to a motion for summary judgment. See Min.
Order (Oct. 29, 2015), citing Scheduling Order (Feb. 3, 2014) [Dkt. # 21].
On December 18, 2015, the day when plaintiff’s combined opposition to the motions was
due, plaintiff filed nothing more than a motion to strike the declaration of plaintiff’s attorney, Ms.
Henninger. See Pl.’s Mot. to Strike [Dkt. # 64]. The Court denied the motion and reminded the
plaintiff that he had yet to oppose defendant’s supplemental motion or to comply with Local Rule
7(h)(1) in connection with either of defendant’s motions. It warned:
If plaintiff fails to oppose the supplemental motion, the Court will treat the
motion as conceded. See LCvR 7(b). If plaintiff fails to file a statement of
material facts in accord with Local Civil Rule 7(h)(1), the Court will treat
2 On August 7, 2015, plaintiff docketed a Second Amended Complaint that made extensive
changes beyond those specified in the Court’s July 2014 Order granting leave to amend. See 2d
Am. Compl. [Dkt. # 51]. Plaintiff then moved to withdraw the Second Amended Complaint and
attached another version of the complaint, but that draft also failed to comply with the Court’s
Order. See Mot. to Withdraw 2d Am. Compl. [Dkt. # 54]. The Court struck the Second Amended
Complaint and again reiterated that a properly-filed Second Amended Complaint could add only
the two claims identified in the Court’s July 24 Order. Order (Aug. 27, 2015) [Dkt. # 57].
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the facts in defendant's motions as admitted. See LCvR 7(h)(1). In an
exercise of the Court's discretion, it is hereby ORDERED that any statement
of genuine issues of fact pursuant to Local Rule 7(h)(1) and any opposition
to defendant's supplemental motion for summary judgment (which may be
consolidated with an opposition to the original summary judgment motion)
must be filed no later than January 8, 2016.
Min. Order (Dec. 21, 2015).
Plaintiff filed his opposition to defendant’s motion on December 21, 2015 which included
a factual recitation entitled “Summary of Undisputed Facts,” but lacked any statement identifying
genuine issues of material fact pursuant to Local Rule 7(h). Pl.’s Opp. to Def.’s Mot. for Summ.
J. [Dkt. # 65] (“Pl.’s Opp.”); Pl.’s Summary of Undisputed Facts [Dkt. # 65] (“Pl.’s SOF”). What
was appended to the opposition was plaintiff’s declaration, which appeared to be just a draft and
contained few, if any, citations to record evidence. See Decl. of Theodore W. Berry [Dkt. # 65-
1]. The Statement of Undisputed Facts was also largely devoid of citations to materials in the
record. Plaintiff filed no excerpts of depositions or exhibits with his pleading, and the Court
ordered him to file a final version of the declaration as well as any record materials upon which he
intended to rely, by January 11. See Min. Order (Jan. 6, 2016).
On January 11, 2016, plaintiff filed two more pleadings: another version of his opposition
to plaintiff’s first motion for summary judgment, See Pl.’s Opp. to Def.’s Suppl. Mot. [Dkt. # 67]
(“Pl.’s 2d Opp.”); and an opposition to the supplemental motion. Pl.’s Opp. to Def.’s Suppl. Mot.
[Dkt. 68-10] (“Pl.’s 3d Opp.”). Those pleadings again included plaintiff’s own recitations of the
facts, see Pl.’s Statement of Genuine Issues of Fact in Supp. of His Opp. to Def.’s Mot. [Dkt. # 67-
7] (“Pl.’s 2d SOF”); Pl.’s Statement of Genuine Facts in Opp. to Def.’s Suppl. Mot. [Dkt. # 68]
(“Pl.’s Supp. SOF”), but they lacked the statement responsive to the defendant’s Statement of Facts
required by the Local Rules. Plaintiff also failed to replace the draft declaration as the Court had
6
ordered. 3 Pl.’s 2d SOF; Pl.’s Statement of Genuine Facts in Opp. to Def.’s Suppl. Mot. [Dkt. # 68]
(“Pl.’s 3d SOF”).
Defendant filed a reply in support of its motion on January 19, 2016. Def.’s Reply Mem.
in Further Supp. of Def.’s. Mot. [Dkt. 69] (“Def.’s Reply”). 4
II. Factual Background
In the absence of a statement by plaintiff “setting forth all material facts as to which it is
contended there exists a genuine issue necessary to be litigated,” Local Civil Rule 7(h)(1), and
pursuant to Fed. R. Civ. P. 56(c) (“[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion by . . . citing to particular parts of materials in the record . . . .”), the
Court relies primarily on defendant’s statement of undisputed facts. Plaintiff’s allegations to the
contrary will also be set forth where relevant.
3 Even if plaintiff had properly re-filed his declaration, it would have had limited utility at
this stage of the proceedings. See Gen. Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 36 (D.D.C. 2009)
(stating that when a “declaration is self-serving and uncorroborated” it is “of little value at the
summary judgment stage”); Fields v. Office of Johnson, 520 F. Supp. 2d 101, 105 (D.D.C. 2007)
(“Self-serving testimony does not create genuine issues of material fact, especially where that very
testimony suggests that corroborating evidence should be readily available.”).
4 In its reply to plaintiff’s opposition to the motion for summary judgment, defendant asked
that plaintiff’s various statements of fact be stricken. Def.’s Reply at 3–4. No formal motion to
strike was filed, though, and the Court has taken pains to ensure that its ruling is based on a
consideration of the entire record. So even though defendant has voiced legitimate concerns about
plaintiff’s compliance with the rules and the Court’s orders, nothing has been stricken from the
record. Also, the Court notes that at one point in one of its orders reminding plaintiff of his
obligations under Rule 56 and Local Civil Rule 7(h), see Scheduling Order (Feb. 3, 2014); and
Min. Order (Oct. 29, 2015), it incorrectly referred to plaintiff’s obligation to file a separate
“statement of undisputed material facts.” See Min. Order (Dec. 21, 2015) (which also correctly
ordered plaintiff to file “any statement of genuine issues of fact pursuant to Local Rule 7(h)(1)”
by a certain date). In the event plaintiff understood that isolated error to have solicited his
recitations of the facts, they will not be stricken. But in the absence of citations to the record, they
do not supply the proof needed at the summary judgment stage. See Fed. R. Civ. P. 56(c)(1); Bank
of N.Y. Mellon Trust Co., N.A. v. Henderson, 107 F. Supp. 3d 41, 45 (D.D.C. 2015) (the Court
need not rely on “factual assertions that are not supported with citations to the record, and does
not scour the record for evidence that will support a party’s claims.”).
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Plaintiff was born in 1951, and he identifies his national origin as “American.” Pl.’s Dep.,
Ex. A. to Decl. of S. Libby Henninger [Dkt. # 38-4] (“Pl.’s Dep.”) at 28. He was hired as a security
officer at CIS in 1998. Id. at 33–34, 36. CIS is a private security company that contracts with
various federal government agencies, and it provides armed security services at the Ronald Reagan
Building and International Trade Center (“RRB”). Def.’s Statement of Undisputed Facts in Supp.
of Def.’s Mot. [Dkt. # 61–2] (“Def.’s SOF”) ¶ 1.
Security officers working for CIS at the RRB belong to a union, and the terms and
conditions of their employment are governed by a collective bargaining agreement (“CBA”). Pl.’s
Dep. at 36–38; Ex. B to Henninger Decl. [Dkt. # 38-4] (attaching relevant portions of the CBA).
The CBA includes a provision detailing a system of progressive discipline for misconduct by
security officers, but it also provides that CIS reserves the right to skip any step of the progressive
discipline process, depending on the severity of the misconduct. Ex. B to Henninger Decl. at
§ 7.1–7.5.
A. Plaintiff’s protected activity
Around January 26, 2011, plaintiff submitted a complaint to Regional Manager Frank
Duran related to a prior disciplinary action he had received from another manager. Pl.’s Dep. at
72–76; Ex. D to Henninger Decl. [Dkt. # 38-4] (complaint). That complaint made reference to
concerns of “nepotism and cronyism” with regards to the selection and use of interim shift
supervisors on the USAID contract. Ex. D to Henninger Decl.
B. Plaintiff applies for a supervisory position
In 2010, CIS advertised for a shift supervisor position at the RRB. Decl. of Janet Gunn
[Dkt. # 38-3] ¶ 6. Plaintiff applied for the shift supervisor position in January 2011. Id. Sergeant
Johnny Dankwah, who is from Ghana, and one other individual also applied for the position.
Def.’s SOF ¶ 10; 2d Am. Compl. ¶ 82.
8
While CIS reviewed the applications for that opening, several employees, including
plaintiff, assumed the role of acting shift supervisor. Gunn Decl. ¶ 7. Around March 21, 2011,
CIS selected Sgt. Dankwah to fill the position. Gunn Decl. ¶ 8; Pl.’s Dep. at 77–78. CIS explained
to plaintiff that he was not chosen because of his overall job performance, which included recent
complaints by other supervisors about his attitude. Gunn Decl. ¶ 8; Ex. C to Gunn Decl. [Dkt.
# 38-3]. Plaintiff’s uniform presentation was also deemed to be below standard. Ex. C to Gunn
Decl.
Shortly after plaintiff learned that he had not been selected, he appealed to Regional
Manager Duran and argued that he should have been given the position based upon his seniority
and experience. Ex. C to Henninger Decl. [Dkt. # 38-4]. Duran agreed, awarded plaintiff the shift
supervisor position, and placed him on a 90-day term of probation; if plaintiff successfully
completed the probationary period, he would be promoted to Lieutenant Major. Id.
After the probationary period concluded, on November 21, 2011, plaintiff filed a charge of
age discrimination and retaliation related in part to the January 2011 promotional opportunity.
Pl.’s Dep. at 183–85; Ex. U to Henninger Decl. [Dkt. # 38-4]. 5
C. Plaintiff is disciplined for failing to properly fill out certain forms
All officers at the RRB are required to record their time daily on a “139 form.” Pl.’s Dep.
at 85–86. Officers also use a “1051 form” to record the identification numbers for weapons and
equipment checked in and out during a shift. Pl.’s Dep. at 86–88; Gunn Decl. ¶ 10. Shift
supervisors are responsible for ensuring that both forms are accurately completed. Pl.’s Dep. at
85–88; Gunn Decl. ¶ 10. The government routinely audits CIS’s compliance with those
5 Plaintiff asserts that he was passed over for the promotion because of his age, and in support
of that claim, he alleges that Project Manager Steele referred to him as “grandpa type.” Pl.’s SOF
¶ 11. He provides no citation or evidentiary support for this allegation, and without further support,
the statement is inadmissible hearsay.
9
contractual requirements, and it has the power to fine CIS if the forms are not completed properly.
Pl.’s Dep. at 88–89; Gunn Decl. ¶ 11.
On August 23, 2011, plaintiff was issued two disciplinary warnings – known as personnel
action reports or PARs – for failing to accurately complete forms 139 and 1051. 6 Exs. G, H to
Henninger Decl. [Dkt. # 38-4]. Several days later, a government contract manager also informed
CIS that he had found errors on plaintiff’s 1051 forms. Ex. J to Henninger Decl. [Dkt. # 38-4].
Plaintiff was not the only one disciplined for failing to properly complete these forms: Sgt.
Dankwah, for example, was also issued PARs for trouble with the same forms. Ex. D to Gunn
Decl. [Dkt. # 38-3]. 7 Plaintiff was issued another PAR on February 27, 2012 for improperly
editing a 139 form which an officer had already signed. Ex. O to Henninger Decl. [Dkt. # 38-4].
D. Plaintiff is disciplined for changing the schedule without authorization
On April 19, 2011, CIS issued a memorandum to all shift supervisors, including plaintiff,
directing that: “[o]nly Project Managers shall approve all leave requests. Under NO circumstance
will a shift supervisor approve any officer’s leave.” Ex. E to Henninger Decl. [Dkt. # 38-4]. That
instruction notwithstanding, plaintiff was issued another PAR on August 23, 2011 for removing
6 Plaintiff alleges that Steele gave him six PARs that day, not two, but when plaintiff
challenged Steele that the PARs were “bogus,” Steele “tore those two PAR[s] on the spot.” Pl.’s
SOF ¶ 15. In plaintiff’s second opposition, he references four PARs on August 23, 2011. See Pl.’s
2d Opp. at 18. The record reflects three PARs on August 23, 2011 – two related to the forms, and
one related to the schedule, discussed below. See Exs. G, H, I to Henninger Decl. [Dkt. # 38-4].
Again, plaintiff does not cite any evidence to support his version of events.
7 Plaintiff points out – without citation – that PARs were generally not the remedy for failing
to fill out the appropriate paperwork, but he does not dispute that other officers also received PARs
for the same conduct. Pl.’s SOF ¶¶ 17–20; Pl.’s 2d SOF ¶¶ 17–20. He points out that there is no
evidence in the record to show that he was ever trained on how to properly complete those forms.
Pl.’s 2d Opp. at 19, 20. And he submits that “[o]n numerous occasions[,] similar issues arose
without a PAR being issued against the offender.” Id. The Court cannot consider those statements
– which lack evidentiary support – in resolving defendant’s motion for summary judgment.
10
an officer from a schedule without getting the project manager’s approval. Ex. I to Henninger
Decl. [Dkt. # 38-4].
On February 10, 2012, plaintiff received another PAR for granting an officer leave without
approval, and for reassigning hours on the schedule without approval. Ex. N to Henninger Decl.
[Dkt. # 38-4]; Pl.’s Dep. at 122. On March 20, 2012, CIS issued another memorandum to plaintiff
to reiterate that he was not to make changes to the schedule without the project manager’s consent.
Ex. P to Henninger Decl. [Dkt. # 38-4]; Pl.’s Dep. at 124–25.
E. Verbal altercation with coworker
On September 4, 2011, CIS received a complaint regarding plaintiff’s conduct towards
another supervisor, Sergeant Donna Dade. Ex. E to Gunn Decl. [Dkt. # 38-3]. According to Dade,
there was an incident when plaintiff was trying to reach her, and she did not respond for
approximately 15 minutes. Id. at 30. 8 When she arrived at plaintiff’s office, he approached her,
and, in an “agitated tone,” asked her for her weapon number so that he could confirm that her
weapon number matched the one listed on the 1051 form. Id. Dade reported that when she
suggested that plaintiff could simply look at the form on file, he became “disgruntle[d] and
jump[ed] out of his seat” and started “hollering” at her. Id. When Dade tried to remove herself
from the situation, plaintiff allegedly “chased” her out of his office. As a result, Dade reported
that she did not “feel safe or comfortable being at work with” plaintiff, and that she “actually
fear[ed] for her life” because of his “rage.” Id. at 31.
8 The exhibits to the Gunn Declaration are attached as one large document. The citation to
the page number refers to the page number auto-generated by ECF.
11
CIS investigated Dade’s complaint, and interviewed the witnesses involved. See generally
Ex. E to Gunn. Decl. [Dkt. # 38-3]. Based on that investigation, plaintiff was issued a PAR and
suspended for three days. Id. at 19–20. 9
F. Plaintiff’s superiors attempt to remedy plaintiff’s conduct
When plaintiff returned from his suspension, he met with the contract manager and his
union representative. Ex. K to Henninger Decl. [Dkt. # 38-4]. At that meeting, the contract
manager reiterated that plaintiff was required to act appropriately and professionally at all times.
Id. But despite those warnings, plaintiff’s unprofessional conduct continued. On June 26, 2012,
plaintiff was issued a PAR after he refused to issue a counseling notice to another officer – Officer
Van Smith – after he was directed to do so by the on-duty Operations Manager. Ex. Q to Henninger
Decl. [Dkt. # 38-4]; Pl.’s Dep. at 125–28. Plaintiff had previously served as best man at Officer
Smith’s wedding. Pl.’s Dep. at 128.
G. Plaintiff’s subordinate requests an emergency bathroom break
On June 26, 2012, a female officer, Officer Bendoria Causey, contacted plaintiff to ask to
be relieved from her post for an emergency bathroom break. Pl.’s Dep. at 129–31; Ex. F to Gunn
Decl. [Dkt. # 38-3]. On his way to provide the requested relief, plaintiff was informed that an
alarm in the building had been triggered. Pl.’s Dep. at 131–32; Ex. F to Gunn Decl. Instead of
dealing with the emergency bathroom break request first, plaintiff decided to respond to the alarm.
Pl.’s Dep. at 130–32; Ex. F to Gunn Decl. While on his way, plaintiff had to walk past Officer
Causey, who emphasized the emergency nature of her request. Pl.’s Dep. at 130–31; Ex. F to
9 Plaintiff claims – without citation and in the face of the evidence to the contrary – that there
was no investigation into the September 4, 2011 incident with Officer Dade. Pl.’s SOF ¶ 24; Pl.’s
2d SOF ¶ 22.
12
Gunn Decl. Plaintiff did not obtain other coverage for the officer, and he dealt with the alarm issue
before returning to relieve her. Pl.’s Dep. at 130–31; Ex. F to Gunn Decl.
In the interim, Officer Causey soiled herself. Pl.’s Dep. at 132; Ex. F to Gunn Decl. 10 CIS
found plaintiff to be at fault for this incident, and suspended him on June 28, 2012 pending further
investigation. Ex. F to Gunn Decl. Ultimately, as a result of the investigation, CIS determined
that it had “lost confidence in the [plaintiff’s] ability to perform the duties and functions of a
Lieutenant and to ensure compliance with all company policies and procedures.” Ex. S to
Henninger Decl. [Dkt. # 38-4]. Plaintiff was demoted from Lieutenant to Security Officer and
transferred from the USAID contract to a GSA contract, also at the RRB. Id.; Gunn Decl. ¶ 15.
Plaintiff was also given a final warning. Gunn Decl. ¶ 15. As a result of the demotion and
suspension, supervisors at the RRB were all moved up one position in the chain of command, and
Sgt. Dankwah assumed plaintiff’s former position. Ex. T to Henninger Decl. [Dkt. # 38-4] at 131.
On September 10, 2012, plaintiff met with the contract manager, Nkrumah Williams 11, and
Regional Manager Frank Duran, to discuss the final warning, and plaintiff’s return to work. Ex. S
to Henninger Decl.; Gunn Decl. ¶ 16. Plaintiff initially refused to accept the final warning and
return to work, but he ultimately returned on September 18, 2012. Ex. G to Gunn Decl. [Dkt. # 38-
3]; Gunn Decl. ¶ 16.
On November 12, 2012, plaintiff filed a second charge of discrimination, claiming that he
was subjected to age discrimination, national origin discrimination, and retaliation when he was
10 Plaintiff now argues that the “staff member was not harmed by [p]laintiff’s decision to
respond to the ‘duress alarm’ rather than to attend to her bathroom needs.” Pl.’s SOF ¶ 31.
11 Williams is of Ghanaian descent. Am. Compl. ¶ 83.
13
suspended in connection with the bathroom incident. Pl.’s Dep. at 185–86; Ex. V to Henninger
Decl. [Dkt. # 38-4].
H. Plaintiff fails to recognize a cleared badge for entry into the building
On May 22, 2013, a tenant of the RRB lodged a complaint with CIS alleging that plaintiff
failed to recognize the resident’s badge. Ex. H to Suppl. Decl. of Janet Gunn [Dkt. # 61-3].
Plaintiff’s actions delayed the resident and his wife from entering the building, which resulted in
the resident being late for his wife’s birthday dinner. Suppl. Decl. of Janet Gunn [Dkt. # 61-3] ¶ 3;
Ex. H to Gunn Suppl. Decl. Though plaintiff was directed to apologize to the tenant, he apologized
only for delaying the tenant and refused to admit that he had erred in failing to recognize the badge
that authorized the tenant to enter the building. Ex. I to Suppl. Gunn Decl. [Dkt. # 61-3].
I. The key incident and failure to complete firearms training
On May 28, 2013, Lieutenant James Johnson failed to return a call box key to the Base
Command Center, and instead, took the key home at the end of his shift. Def.’s SOF ¶ 42. Lt.
Johnson was directed to return the key the next day, but he gave the key to plaintiff to return
instead. Id. Plaintiff failed to do so and, against CIS’s policies, took the key home. Id. Like
Johnson, plaintiff was directed to return the key the following day, but then he also failed to do so.
Id. The key was not returned to the Base Command Center until May 31, 2013. Id.; Ex. J to Gunn
Suppl. Decl. [Dkt. # 61-3]. 12
On June 3, 2013, plaintiff received a PAR for his failure to return the key. Ex. K to Gunn
Suppl. Decl. [Dkt. # 61-3]. Because he was already on a final written warning, the PAR was
12 Plaintiff included 10 photographs of the key in question as exhibits to his various
oppositions. See Exs. 11, 30, 31 to Pl.’s 2d Opp. [Dkt. # 67-2, 67-8]; Exs. 11, 30, 31 to Pl.’s 3d
Opp. [Dkt. # 68-2, 68-7]. The photos are clearly irrelevant to the question of whether defendant
discriminated or retaliated against plaintiff.
14
deferred for investigation. Id. 13 Plaintiff was suspended pending investigation of the key incident
on June 19, 2013. Ex. N to Gunn Suppl. Decl. [Dkt. # 61-3].
Also in June 2013, plaintiff failed to successfully complete firearms testing. Def.’s SOF
¶ 48. On June 28, 2013, while plaintiff was already suspended for the key incident, he was notified
that he was being placed on unpaid administrative leave – for up to thirty days – during which he
was obligated to complete the firearms exam. Ex. O to Gunn Suppl. Decl. [Dkt. # 61-3]. Plaintiff
completed the training on July 23, 2013. Gunn Suppl. Decl. ¶ 12.
On August 9, 2013, based on the combination of plaintiff’s failure to apologize properly
to a tenant of the RRB, his violation of CIS’s key policy, “insubordinate delay” in returning the
key, and neglect of duties, plaintiff was issued another Final Warning and suspended for twenty
days. Ex. P to Gunn Suppl. Decl. [Dkt. # 61-3]. This suspension was scheduled to run concurrently
to the administrative leave related to his failure to pass the firearms examination.
In December 2013, plaintiff filed another EEOC charge alleging that the suspension over
the key incident was retaliatory and discriminatory. See Ex. 3 to Pl.’s Reply to Def.’s Opp. to Pl.’s
Am. Compl. [Dkt. # 48-1] at 1.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
13 Lt. Johnson was also given a PAR for his conduct during this episode. But because he
– unlike plaintiff – had no active discipline, he was given a verbal warning. Ex. L to Gunn Suppl.
Decl. [Dkt. # 61-3].
15
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party must
“designate specific facts showing that there is a genuine issue for trial.” Id. at 324.
The mere existence of a factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable
of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the summary judgment
motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
ANALYSIS
Plaintiff claims that the succession of PARs, as well as his 2012 demotion and transfer to
a different contract within the RRB after the bathroom incident, and his numerous suspensions,
constitute discrimination on the basis of his age and national origin, and retaliation for his protected
activity of complaints surrounding his promotion. But because defendant has come forward with
evidence to show that plaintiff was disciplined because of his poor job performance, and not for a
discriminatory or retaliatory purpose, and plaintiff has failed to come forward with evidence to
show that defendant’s stated reasons were either pretextual or tainted by improper animus, the
Court will grant defendant’s motion for summary judgment.
Title VII of the Civil Rights Act of 1964 was enacted to implement “the federal policy of
prohibiting wrongful discrimination in the Nation’s workplaces.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2522 (2013). The anti-discrimination provision “makes it unlawful for
16
an employer ‘to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race’” or other protected
characteristics. Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008), quoting 42 U.S.C. § 2000e-
2(a). As the D.C. Circuit has explained, to state a prima facie case of disparate treatment under
Title VII’s antidiscrimination provision, the plaintiff must establish two essential elements: “that
(i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color,
religion, sex, national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196
(D.C. Cir. 2008), citing 42 U.S.C. § 2000e-16(a); see also 29 U.S.C. § 633a(a) (providing that,
pursuant to the ADEA, “[a]ll personnel actions affecting employees or applicants for employment
who are at least 40 years of age . . . in executive agencies . . . shall be made free from any
discrimination based on age.”).
Ordinarily when a plaintiff brings a disparate treatment claim under the anti-discrimination
provision of either Title VII or the ADEA, and he relies on circumstantial evidence to establish
the employer’s unlawful conduct, the Court applies the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 453 F.3d 513,
515 (D.C. Cir. 2006). Under that framework, the plaintiff bears the initial burden of establishing
a prima facie case. McDonnell Douglas, 411 U.S. at 802; Holcomb v. Powell, 433 F.3d 889, 895
(D.C. Cir. 2006). 14 Once a prima facie case is established, then “[t]he burden . . . must shift to the
employer to articulate some legitimate, nondiscriminatory reason” for the adverse action.
McDonnell Douglas, 411 U.S. at 804; Holcomb, 433 F.3d at 896–97. If a legitimate,
14 To establish a prima facie case of disparate treatment discrimination, “the plaintiff must
establish that (1) he is a member of a protected class, (2) he suffered an adverse employment action,
and (3) the unfavorable action gives rise to an inference of discrimination.” Forkkio v. Powell,
306 F.3d 1127, 1130 (D.C. Cir. 2002).
17
nondiscriminatory reason is given, the burden shifts back to the plaintiff to prove that the proffered
reason is a pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 803;
Holcomb, 433 F.3d at 896.
But in cases like this one where the defendant proffers legitimate, nondiscriminatory or
nonretaliatory reasons for the challenged actions, the court need not conduct the threshold inquiry
into whether the plaintiff established a prima facie case of discrimination. Instead, the court is
required to analyze whether the defendant’s asserted reason is in fact a legitimate,
nondiscriminatory explanation. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493–94 (D.C.
Cir. 2008) (“Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII
disparate-treatment suit where an employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason for the decision, the district court
need not – and should not – decide whether the plaintiff actually made out a prima facie case under
McDonnell Douglas.”).
Once the defendant has proffered a legitimate explanation, then the burdens shifts to the
plaintiff to demonstrate why the defendant is not entitled to judgment as a matter of law. In the
context of a disparate treatment claim, the plaintiff may defeat summary judgment by proving
either that the defendant’s legitimate, nondiscriminatory reason is a pretext for discrimination,
McDonnell Douglas, 411 U.S. at 804, or that the employment action was motivated by
discrimination in addition to the proffered legitimate reason. Nassar, 133 S. Ct. at 2522–23; Fogg
v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007); see also Ginger v. District of Columbia, 527 F.3d
1340, 1345 (D.C. Cir. 2008) (explaining the difference between a “single motive” and a “mixed-
motive” disparate treatment case). Plaintiff at all times bears the burden of persuasion. McIntyre
v. Peters, 460 F. Supp. 2d 125, 132–33 (D.D.C. 2006).
18
Plaintiff’s ADEA and national origin claims fail because defendant has shown
legitimate and nondiscriminatory reasons for its employment actions.
In Count III, plaintiff claims that CIS discriminated against him based on his national origin
as a natural born American when it made the decision in 2012 to demote and transfer him to a
different contract at the RRB, and replaced him with Johnny Dankwah, an employee of Ghanaian
descent. 2d Am. Compl. ¶¶ 100–05. Plaintiff also contends that the act of suspending him for
taking the alarm key home constituted national origin discrimination because “similarly situated
Ghanaian employees were not disciplined in a similar manner.” Id. ¶ 107.
In Count V, plaintiff alleges that he was discriminated against based on his age when CIS
suspended, demoted, and transferred him, and replaced him with Johnny Dankwah, who is “in his
thirties and substantially younger than [p]laintiff.” Id. ¶¶ 116–22.
In response to plaintiff’s claims of discrimination, defendant contends that plaintiff was
justifiably suspended in 2012 due to his “difficulties adhering to Coastal’s policies and
procedures,” and because of his “egregious and unprofessional conduct” during the verbal
altercation with Dade and the emergency bathroom break incident. Def.’s Suppl. Mem. at 17.
Defendant adds that plaintiff was demoted due to his “ongoing failure to comply with workplace
rules and procedures.” Id.
According to the defendant, plaintiff’s 2013 suspension was also justified in light of
plaintiff’s violations of the collective bargaining agreement, his violation of work rules “by
removing a key from his workplace and refusing to return it” even after he was ordered to do so,
and his failure “to understand security protocols related to clearing residents entry into the
building.” Def.’s Suppl. Mem. at 18. Defendant also points out that the suspension ran
concurrently to the administrative leave without pay imposed for failure to complete required
firearms testing. Id.
19
Defendant’s legitimate and non-discriminatory reasons – plaintiff’s unprofessional conduct
and difficulty adhering to CIS’s policies – are well supported by the record. See Exs. G, H, J, O
to Henninger Decl. (difficulty adhering to policies surrounding forms 139 and 1051); Exs. E, I,
N, P to Henninger Decl. (difficulty adhering to policy that only the project manager may change a
schedule); Ex. E to Gunn Decl. (unprofessional verbal altercation with coworker); Ex. Q to
Henninger Decl. (refusal to discipline a friend despite being ordered to do so); Ex. F to Gunn Decl.;
Ex. S to Henninger Decl. (refusal to appropriately respond to Officer Causey’s request for an
emergency bathroom break); Def.’s SOF ¶ 42 (failure to return a key as directed); Exs. H, I to
Gunn Suppl. Decl. (failure to recognize a cleared badge and failure to adequately apologize); Ex.
O to Gunn Suppl. Decl. (failure to timely complete firearms training). Even if one could raise
questions about the gravity of any particular infraction or incident when viewed in isolation,
defendant has identified legitimate, nondiscriminatory grounds for its decision to suspend, demote,
and transfer the plaintiff by putting forth evidence of an accumulation of events that prompted
repeated warnings. See Holcomb, 433 F.3d at 896; Onyewuchi v. Mayorkas, 766 F. Supp. 2d 115,
121 (D.D.C. 2011).
So the burden shifts back to the plaintiff to “show that a reasonable jury could conclude
from all of the evidence that the adverse employment decision was made for a discriminatory
reason.” Holcomb, 433 F.3d at 896–97, quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.
2003); see also Porter v. Shah, 606 F.3d 809, 815 (D.C. Cir. 2010). “All of the evidence” includes
any combination of (1) evidence establishing the plaintiff’s prima facie
case; (2) evidence the plaintiff presents to attack the employer’s proffered
explanation for its actions; and (3) any further evidence of discrimination
that may be available to the plaintiff, such as independent evidence of
discriminatory statements or attitudes on the part of the employer.
20
Holcomb, 433 F.3d at 897. Because plaintiff has failed to put forth any evidence in either the first
or third categories, and he relies solely on his own disagreement with the manner in which his
employer exercised its judgment for the second category, his attempt to carry his burden fails.
Plaintiff argues that the PARs that form the basis for defendant’s asserted non-
discriminatory reasons are all pretextual because it “is clear [d]efendant has used the disciplinary
system as a ready vehicle for discrimination and or reprisal.” Pl.’s 2d Opp. at 26. Plaintiff then
makes the argument that the procedures used by CIS in disciplining him were improper, because
CIS allegedly never formally investigated the allegations that formed the basis for those PARs,
and that certain aspects of the 90-day suspension violated the CBA. Id. at 26–27, 30. Even if
plaintiff’s unsupported accusations were true, 15 he would still not be able to defeat summary
judgment.
The D.C. Circuit has explained that an agency’s failure to follow its own personnel
procedures may be probative evidence of pretext. Johnson v. Lehman, 679 F.2d 918, 922 (D.C.
Cir. 1982). But because the Court does not “serve as a ‘super-personnel department that
reexamines an entity’s business decisions,’” Holcomb, 433 F.3d at 897, quoting Barbour v.
Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999), even a procedurally-flawed decision to discipline
an employee is not evidence of pretext if “the employer honestly believes in the reasons it offers.”
Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). Instead, a procedural
defect must evidence the employer’s discriminatory bias. Washington v. Chao, 577 F. Supp. 2d
15 Plaintiff cites to a letter by Hal Vo, plaintiff’s former coworker, who alleges that Officer
Causey intentionally attempted to get plaintiff “in trouble.” Ex. 28 to Pl.’s Opp. [Dkt. # 67–8].
Plaintiff also included an email from another coworker, Ronnie Hogue, who alleges that the key
incident and the incident with the resident’s badge evidences a “conspiracy and assassination” of
plaintiff’s “job status and character.” Ex. 38 to Pl.’s 3d Opp. [Dkt. # 68-9]. Both letters are “sheer
hearsay” which “count[] for nothing” on summary judgment. Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000).
21
27, 46 (D.D.C. 2008), citing Adeyemi v. District of Columbia, 525 F.3d 1222, 1228–29 (D.C. Cir.
2008).
Plaintiff attempts to meet this burden in two ways. First, he argues, without citation, that
the discipline he received for changing other officers’ schedules without approval was a pretext
for discrimination, because he was authorized to change those schedule prior to the dissemination
of a memorandum on March 20, 2012 by Steele. Pl.’s 2d Opp. at 29–30. But this unsupported
assertion of fact is contrary to the evidence in the record, including plaintiff’s own exhibits. On
April 20, 2011, plaintiff signed and thereby acknowledged receipt of a memorandum that said, in
clear terms, that “[o]nly Project Managers shall approve all leave requests” and that “[u]nder NO
circumstance will a shift supervisor approve any officer’s leave.” See Ex. E to Henninger Decl. at
94; Ex. 17 to Pl.’s 2d Opp. [Dkt. # 67-4] at 2–3; Ex. 4 to Pl.’s 2d Opp. [Dkt. # 67-1] at 10. So
plaintiff’s claim that the imposition of discipline must have been the product of improper bias
because the policy being enforced did not apply at the time is not supported by the record, and it
does not supply the proof needed to carry plaintiff’s burden.
Second, plaintiff argues that the decision to discipline him for the bathroom incident was
pretextual because it was his obligation as the Shift Supervisor to direct his attention to the
emergency alarm, and he attempted to reach another officer to relieve Officer Causey, but the
radios were broken at the time. Ex. 30 to Pl.’s 2d Opp. [Dkt. # 67-8] at 11. But plaintiff does not
point to record evidence to confirm this circumstance. 16 And while plaintiff may have reason to
disagree with his supervisors about what his priorities should have been at that moment and
16 Instead, he relies on a letter that he sent to CIS’s parent company, Akal Security, to
challenge the suspension. Ex. 29 to Pl.’s 2d Opp. [Dkt. # 67-8] at 20. Plaintiff’s exhibits include
a number of similar multi-page self-serving letters, emails, and memoranda to CIS management.
See, e.g., Exs. 5, 8, 30, 37 to Pl.’s 2d Opp. Those letters, emails, and memoranda have little
evidentiary value. See Jackson, 595 F. Supp. 2d at 36; Fields, 520 F. Supp. 2d at 105.
22
whether the level of discipline he received was warranted under the circumstances, plaintiff has
completely failed to put forward any evidence of discriminatory animus based on either his age or
his national origin.
Plaintiff’s submission of his own declaration, along with the exhibits that consist of his
own efforts to voice his grievances, see Berry Decl.; Exs. 30, 37 to Pl.’s 2d Opp., is not enough to
avert the award of summary judgment in this case. See, e.g., Mianulli v. Potter, 634 F. Supp. 2d
90, 97 (D.D.C. 2009) (rejecting a disparate treatment discrimination claim because the plaintiff
“offered no evidence . . . to support the self-serving and conclusory allegation that the deadlines
were in fact unreasonable or that the deadlines were a result of his race or color”); Bonieskie v.
Mukasey, 540 F. Supp. 2d 190, 195 (D.D.C. 2008) (“Summary judgment for a defendant is most
likely when a plaintiff’s claim is supported solely by the plaintiff’s own self-serving, conclusory
statements.”); Fields, 520 F. Supp. 2d at 105 (noting that “[s]elf-serving testimony does not create
genuine issues of material fact” for purposes of summary judgment).
Because plaintiff cannot rebut defendant’s legitimate and nondiscriminatory reasons for
suspending, demoting, and transferring him, the Court will grant summary judgment to defendant
on Counts III and V. 17
17 Even if plaintiff had rebutted the non-discriminatory reason for the adverse actions, his age
discrimination claim would face an additional hurdle – plaintiff cannot show that age was the “but
for” cause of the adverse actions. See Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009). Plaintiff
admitted at his deposition that he was “beginning to feel that it’s much more to do with nationality
than age,” and that he thinks “younger people were probably preferred as less threatening.” Pl.’s
Dep. at 172. Plaintiff’s equivocations – that the adverse actions were due more to national origin
than age, and that younger people were “probably” preferred – would not support his burden to
show that age was a “but for” cause of the adverse actions. And plaintiff’s suspicions alone would
be insufficient at this stage in any event. For that independent reason, Count V would fail as well.
23
Plaintiff’s retaliation claims fail because he has not demonstrated a causal connection
between his protected activity and the adverse employment actions.
Plaintiff claims in Counts II and IV that defendant violated the D.C. Human Rights Act
(Count II) and the ADEA (Count IV) when it demoted, and transferred him after the bathroom
incident, in retaliation for his protected activity of complaining about discrimination in the 2011
promotion decision. 2d Am. Compl. ¶¶ 94–99; 109–115. Additionally, plaintiff alleges that his
suspension over the key incident and the issuance of the final warning letter in June 2013
constituted retaliation in violation of Title VII (Count VI). Id. ¶¶ 123–28.
To establish a prima facie case of retaliation, “the plaintiff must present evidence that (1)
[he] engaged in activity protected by Title VII; (2) the employer took an adverse employment
action against [him]; and (3) the adverse action was causally related to the exercise of [his] rights.”
Holcomb, 433 F.3d at 901–02. Title VII’s anti-retaliation provision makes it unlawful for “an
employer [to] ‘discriminate against’ an employee . . . because that individual ‘opposed any
practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a
Title VII proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
56 (2006), quoting 42 U.S.C. § 2000e-3(a). The same standards apply to ADEA and DCHRA
claims. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009), citing Carter v. George Wash.
Univ., 387 F.3d 872, 878 (D.C. Cir. 2004); Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir.
2010), citing Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 235–36 n.3 (D.C. Cir. 1999).
As the D.C. Circuit has explained, once the defendant has put forth a legitimate and
nondiscriminatory reason for its action, “the only question is whether the employee’s evidence
creates a material dispute on the ultimate issue of retaliation ‘either directly by [showing] that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
24
employer’s proffered explanation is unworthy of credence.’” Bernanke, 557 F.3d at 678, quoting
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983).
Unlike in the discrimination context, there are no “mixed motive” retaliation claims; the
plaintiff must establish that retaliation was the “but-for cause” of the adverse action in order to
survive summary judgment. Nassar, 133 S. Ct. at 2533. “This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of the
employer.” Id.
Plaintiff devotes more than ten pages of his brief arguing that he engaged in protected
activity and was subject to one or more adverse employment actions. Pl.’s 2d Opp. at 13–24. But
defendant had already conceded both of those points. See Def.’s Suppl. Mem. at 22, citing Ex. U
to Henninger Decl. And plaintiff utilizes only two paragraphs to address the key question
– whether there was a causal connection between the protected activity and the adverse
employment actions. Pl.’s 2d Opp. at 24–25. Plaintiff argues simply that each incident of
discipline was procedurally improper under the CBA and was part of a campaign to “discredit”
him. Id.
The Court may infer a causal connection between protected activity and an adverse
employment action on a “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); see also Holcomb, 433 F.2d at 903. But here, plaintiff
cannot show causation in that manner because the adverse employment actions did not occur close
in time to the protected activity. Courts in this district “often follow[] a three-month rule to
establish causation on the basis of temporal proximity alone.” McIntyre v. Peters, 460 F. Supp.
2d 125, 133 (D.D.C. 2006); see Clark Cty. Sch. District v. Breeden, 532 U.S. 268, 273 (2001)
25
(temporal proximity between employer’s knowledge of protected activity and adverse employment
action must be “very close”).
Plaintiff engaged in protected activity on November 21, 2011, when he complained that
his non-selection as a shift supervisor, and some of the PARs in Fall 2011, constituted age
discrimination. See Ex. U to Henninger Decl. at 135; see also Exs. G–L to Henninger Decl.
(August to November 2011 PARs). Plaintiff asserts that in retaliation for that activity, he was
suspended on June 28, 2012, 2d Am. Compl. ¶ 95, demoted on September 6, 2012, 2d Am. Compl.
¶ 111, suspended on June 22, 2013, 2d Am. Compl. ¶ 125, and issued a final warning letter on
August 9, 2013. 2d Am. Compl. ¶ 125.18 None of those adverse actions – the first of which took
place a full seven months after plaintiff’s complaint and which spanned a period of more than
twenty months – was close enough in time to the November 2011 protected activity to create an
inference of causation. And plaintiff has failed to come forward with any other evidence – as
opposed to mere argument – related to the existence of retaliatory animus. See Ginger, 527 F.3d
at 1346-47 (finding that it was appropriate for the District Court to dismiss a claim of retaliation
based solely on the plaintiffs’ conclusory statements: “In sum, they assert the policy was
retaliatory, but they proffered no evidence upon the basis of which a reasonable jury could agree”).
18 Plaintiff’s opposition also connects the protected activity of complaining to management
by letter in 2011 and 2012, and the filing this lawsuit in 2012, to the adverse personnel action of
being suspended in 2012. Pl.’s 2d Opp. at 33, citing Pl.’s Ex. 37; see also Pl.’s 3d Opp. at 3
(alleging that plaintiff filed a complaint with the EEOC in November 2012, and that complaint
formed the basis for the discipline for the key incident in June 2013). But plaintiff also argues that
“it is clear that the disciplinary actions taken against [p]laintiff have their roots in the decision to
deny him the promotion to the position of shift supervisor,” Pl.’s 2d Opp. at 37, which took place
in 2011, and the amended complaint seems to refer only to the 2011 protected activity. 2d Am.
Compl. ¶¶ 110–11. In any event, even if the Court were to consider the 2012 protected activity,
plaintiff cannot show the required temporal proximity between his 2012 EEOC complaint and
2013 discipline for the key incident, nor has he put forth facts from which one could conclude that
imposing disciplinary action for an undisputed infraction was retaliatory.
26
The defendant has produced evidence of numerous instances of inappropriate conduct,
insubordination, and failure to comply with rules and procedures, which were followed by repeated
warnings and instructions. Plaintiff does not contend that the misconduct did not take place; he
questions whether the level of discipline imposed was just under the terms of the collective
bargaining agreement. Because plaintiff was disciplined for misconduct that occurred long after
his protected activity, and plaintiff has failed to point to any other facts that would establish the
causal connection, the Court cannot find that plaintiff’s protected activity in 2011 was the “but
for” cause of the adverse personnel actions that Coastal took in 2012 and 2013. For those reasons,
defendant is entitled to summary judgment on Counts II, IV, and VI. 19
CONCLUSION
For the foregoing reasons, the Court will grant defendant’s motions for summary judgment.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: March 15, 2016
19 In any event, plaintiff cannot rebut defendant’s argument that the adverse employment
actions were not retaliatory, but instead were legitimate and nondiscriminatory. See Def.’s Suppl.
Mem. at 24–25. Plaintiff counters, like he did for the discrimination counts, that he can rebut the
defendant’s reasons by showing that defendant failed to follow the procedural requirements of the
CBA. Pl.’s 2d Opp. at 25-28. For the same reasons discussed above, plaintiff’s argument is
unpersuasive; plaintiff has not pointed to evidence that would rebut the legitimate and
nondiscriminatory explanation for CIS’s conduct – namely, that plaintiff had performance issues
at work.
27