Brooks v. Clinton , 37 F. Supp. 3d 187 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YVONNE M. BROOKS,
Plaintiff,
v.
JOHN F. KERRY, in his official capacity as Civil Action No. 10-0646 (BAH)
Secretary of State, Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
Pending before the Court are two motions filed by the defendant John Kerry, in his
official capacity as Secretary of State,1 to resolve the remaining claim asserted by the plaintiff
Yvonne Brooks, who is an African-American woman, that her contract for employment as an
administrative officer for the U.S. Department of State (“State Department”) was not renewed
upon expiration in March 2007, in retaliation for her seeking Equal Employment Opportunity
counseling. See Complaint (“Compl.”) ¶¶ 41–44 (Count I), ECF No. 1. The plaintiff is seeking
damages for this alleged retaliation under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981. Id. The Court
has already had occasion to consider the factual allegations and claims in this lawsuit and
granted summary judgment to the defendant on the plaintiff’s claims for race discrimination
(Count II), failure to accommodate disability (Count III), and hostile work environment (Count
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John Kerry, the current Secretary of State, has been automatically substituted as the named defendant in place of
Hillary Clinton, who was originally named as the defendant in her official capacity when she served as Secretary of
State. FED. R. CIV. P. 25(d).
1
IV). Brooks v. Clinton, 841 F. Supp. 2d 287, 309 (D.D.C. 2012); Order, inter alia, Granting In
Part And Denying In Part Defendant’s Motion for Judgment on the Pleadings or for Summary
Judgment, ECF No. 47. Following a period of almost one and a half years of discovery
requested by the parties on the remaining retaliation claim, the Court now considers the
defendant’s Final Motion to Dismiss or for Summary Judgment “on the last remaining issue in
this case, i.e., whether there is sufficient evidence to warrant a jury trial on Plaintiff’s retaliation
claim concerning her alleged protected activity on November 16, 2006,” Def.’s Final Mot.
Dismiss Summ. J. (“Def.’s Mem.”), ECF No. 66, and the defendant’s motion to strike as
untimely disclosed two documents attached to the plaintiff’s opposition motion, see Def.’s
Motion to Strike (“Def.’s Mot. Strike”), ECF No. 75. For the reasons explained below, both the
defendant’s motions are granted.
I. BACKGROUND
A. Factual Allegations Relating to Retaliation Claim
The Court’s prior Memorandum Opinion set out a detailed recitation of the factual
allegations underlying the plaintiff’s claims and those will not be repeated here. See Brooks, 841
F. Supp. 2d at 293–96. The following summary is limited to the facts bearing on the two
pending motions.
The plaintiff began working, in November 2003, as an Administrative Officer, Personnel
Service Contractor to the Management Support Division (“MSD”) at the State Department ’s
Bureau of Overseas Buildings Operations (“OBO”). Compl. ¶ 11. Her contract with the State
Department was a one-year contract, with options for renewal in one-year increments for up to
five years. See Def.’s Stmt. of Mat. Facts Not in Dispute (“Def.’s SMF”), ¶ 2, ECF No. 66-1;
see also Pl.’s Opp’n. Def.’s Final Mot. Dismiss Summ. J. (“Pl.’s Mot.”) Ex. 15 at 7, ECF No. 70-
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14 (personal services contract stating the period of performance); Pl.’s Resp. Def.’s SMF ¶ 2,
ECF No. 70-29 (noting that the five-year contract could be renewed for another five-year
period). The plaintiff’s second-line supervisor, Roberto Coquis, was the Contract Officer
Representative and ratings official for the plaintiff. Def.’s SMF ¶¶ 5–6. In those capacities, he
recommended renewal of the plaintiff’s contract two years in a row and gave her an
“Outstanding” rating in 2005, an “Excellent” rating in 2006, and a “Satisfactory” rating in 2007,
just before her contract expired. Id; see also Pl.’s Stmt. Of Add’l Mat. Facts In Dispute (“Pl’s
SMF”) ¶ 1; Pl.’s Resp. Def.’s SMF ¶¶ 5–6 (admitting Coquis’ approval of contract renewals but
disputing, without supportive citations, that the ratings were “provided” by Coquis because
plaintiff “earned the ratings through her hard work”). At his deposition, Coquis stated that he
“genuinely liked” the plaintiff, Dep. Roberto Coquis (“Coquis Dep.”) at 68:11–12, ECF No. 66-
2, “felt [she] was a good employee,” and noted that he had “hired her twice before and
considered her work valuable.” Id. at 162:8–10.
The plaintiff alleges that, in July 2006, her immediate supervisor was replaced by David
Spinale, a white male, and Coquis and Spinale “thereafter began a campaign of hostile work
environment and disparate treatment” based on her race and sex, and “failed and refused to
accommodate her physical disabilities (Keratitis and Chronic Iritus), a military service-connected
disability.” Compl. ¶¶ 15–16; see also Pl.’s Stmt. Add’l Mat. Facts Dispute (“Pl’s SMF”) ¶¶ 6–
8, ECF No. 70-30.2 From the perspective of her supervisors, the plaintiff made errors in her
2
As detailed in the Court’s prior Memorandum Opinion, the plaintiff cited a number of her supervisors’ actions as
amounting to a hostile work environment, discrimination, and failure to reasonably accommodate her “severe eye
disability,” including sending “hostile” emails criticizing her work, charging her leave without pay for two hours,
refusing to reimburse her fully for travel expenses to a work-related conference, denying her request to attend a
training seminar, requiring her return of a government-issued cell phone, and requiring her to submit daily work
reports. Brooks, 841 F. Supp. 2d at 293–95 (summarizing Compl. ¶¶ 24–41).
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work product, which was repeatedly late, incomplete or inadequate, and this prompted
communications to the plaintiff about improving her work on May 24, 2006, see Def.’s First
Mot. Dismiss Summ. J. Ex. 5 at 1–2, ECF No. 19-10 (email from Coquis to the plaintiff, dated
May 24, 2006, listing errors plaintiff made in slide deck and noting, “[a]s stated in the past, the
above are the details that you should be reviewing/correcting”); Coquis Dep. At 155:22–156:9;
Def.’s SMF ¶ 7; Pl.’s Resp. Def.’s SMF ¶ 7 (without contesting errors in her work product,
plaintiff notes her “serious eye disability” that affected her ability to work).
In addition, Coquis became concerned about the plaintiff’s use of her work computer.
For example, on May 24, 2006, the plaintiff sent an email to Coquis and other State Department
personnel entitled “10 Truths Black and Hispanic people know but White people won’t admit,”
that Coquis found “appalling because . . . in addition to referring to . . . whites and black, it also
referred to Hispanics. And being Hispanic, I took it personally as discriminatory.” Coquis Dep.
at 157:1 –5; see also Def.’s First Mot. Dismiss Summ. J. Ex. 9, ECF No. 19-14 (“10 Truths”
Email from the plaintiff to Coquis and others). Receipt of this email from the plaintiff prompted
Coquis to caution her about “sending out offensive or inappropriate e-mails from your State
Email.”3 Id. (emphasis in original). The plaintiff does not deny sending the 10 Truths email, but
contends that this “offense merited only an oral counseling (minimal offense) and therefore
cannot serve as the basis for [plaintiff]’s termination.” Pl.’s Resp. Def.’s SMF ¶ 8; see also
Coquis Dep. at 168:3–17 (noting that plaintiff never denied sending the “10 Truths” email).
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Coquis’ email to the plaintiff stated in full: “Yvonne, This e-mail is NOT appropriate to be sent around from your
Official State E-mail Address. Additionally, there have been other e-mails (“FW: This is amazing,” and Oprah 's
Gala) this week that should not be sent from official State Department email. Please refrain from sending out
offensive or inappropriate e-mails from your State Email.” Def.’s First Mot. Dismiss Summ. J. Ex. 9 at 1–3.
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During the summer of 2006, the State Department was undergoing an OBO
reorganization and cost savings effort, under the direction of OBO Director General Charles
Williams, and this effort entailed closure of SA-18, OBO South, the building where the plaintiff
was employed. See Suppl. Decl. Wanda L. Mitchell (“Mitchell Suppl. Decl.”) ¶¶ 2, 5, ECF No.
66-5; Def.’s SMF ¶ 9. General Williams “encouraged the managers to scrutinize their operations
as he was concerned about the functional efficiency of the organization, which he found to be
lacking.” See Decl. Wanda L. Mitchell (“Mitchell Decl.”) ¶ 4, ECF No. 66-4. As part of the
OBO’s cost-saving endeavor, OBO’s Director of Human Resources Wanda L. Mitchell
discussed the closing of the SA-18 building with Coquis “in about the summer or fall of 2006.”
Mitchell Suppl. Decl. ¶ 5; Def.’s SMF ¶ 10. Mitchell advised Coquis that “it would be cost
efficient” and “the best approach from a [Human Resources (“HR”)] standpoint . . . to downsize
staff [in SA-18] as employees left their positions.” Mitchell Suppl. Decl. ¶ 5. The plaintiff
disputes that OBO was downsizing and asserts that more employees were hired after she was
terminated. See Pl.’s Resp. Def.’s SMF ¶¶ 9, 24. As support for this assertion, the plaintiff relies
on the declaration of Dwayne Butler, which is one of the documents that the defendant seeks to
strike. See infra Part III.A This declaration, by a non-managerial physical security officer, states
that “three or four new employees” were hired after the plaintiff was let go, but does not state
what positions they were hired for, and does not refute Mitchell’s statements about the OBO
Director’s strategy of downsizing SA-18 through attrition, and ultimately ceasing operations in
2009. Mitchell Suppl. Decl. ¶ 6.
Simultaneously, in the summer or fall of 2006, the Information Technology Department
at the OBO (“IT”) undertook an initiative to purge “inappropriate images” from the OBO
computer system by performing sweeps of employees’ computers. Id. ¶ 7; Def.’s SMF ¶ 12;
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Pl.’s Resp. Def.’s SMF ¶ 12 (disputing without supportive citations that a sweep uncovered the
image attributed to plaintiff). At the time the effort was initiated, it was determined that
“counseling and/or letters of warning” would be issued to employees if inappropriate images
were found on their computer, unless “there were egregious violations of Department policies.”
Mitchell Suppl. Decl. ¶ 7. In early November 2006, this department-wide sweep uncovered an
inappropriate image with the file name “Spiderman.jpg” on the plaintiff’s computer system as
well as evidence that the image had been accessed a number of times using the plaintiff’s log-in
credentials. See Decl. Robert E. Clarke (“Clarke Decl.”) at 6, ECF No. 66-7; Coquis Dep. at
57:3–22; 58:16–22; Mitchell Decl. Ex. 4 (letter of warning, dated November 27, 2006, from
Coquis to the plaintiff regarding the “Spiderman.jpg” image). The IT Director Song Keller
brought the image to Coquis’ attention when it was retrieved, and Mitchell recommended that
Coquis provide a letter of warning to the plaintiff. Coquis Dep. at 57:9–16; Pl.’s Resp. Def.’s
SMF ¶ 13 (disputing without supportive citation that IT brought the email to Coquis’ attention).
On November 9, 2006, Coquis forwarded Mitchell a draft of the letter of warning for her review
and comment before Coquis sent it to the plaintiff. Mitchell Decl. ¶¶ 3, 4; id. Ex. 1. Even before
Coquis sent the draft letter to Mitchell, the two had already discussed the possibility of not
renewing the plaintiff’s employment contract. Mitchell Decl. ¶ 4. Coquis submitted the letter of
warning to the plaintiff on November 27, 2006. Mitchell Decl. Ex. 4; Pl.’s SMF ¶ 17; Pl.’s Resp.
Def.’s SMF ¶ 15 (without contesting issuance of letters, plaintiff notes that the letter was
wrongfully issued as the State Department was in a cyber-security grace period).
The plaintiff contends that she did not download or access “Spiderman.jpg” and that she
was “exonerated” after the IT department determined that the image was not found in the hard
drive of the plaintiff’s assigned computer, but on a computer in a different building and on a
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different floor than the plaintiff’s workstation. See Pl.’s SMF ¶¶ 18–19, 21, 27. The
documentation on which the plaintiff relies for this contention falls far short of an “exoneration”
and instead consists of her emails to the IT department disputing the conclusion that the
“Spiderman.jpg” file was on her computer. See generally Pl.’s Mot. Ex. 21. Contrary to the
plaintiff’s assertion, the IT department never cleared the plaintiff of wrongdoing, but rather, upon
review of the inappropriate image, informed her that the image was downloaded using her log-in
credentials, which “has nothing to do with what computer” the image was found on. Pl.’s Mot.
Ex. 21 at 13, ECF No. 70-20 (email, dated February 26, 2007, from Keller to the plaintiff); see
also id. Ex. 23 at 2–3, ECF No. 70-22 (email, dated February 22, 2007, informing the plaintiff
that the directory path for the file included her login information). A second forensic
examination of the image undertaken while the parties were in discovery confirmed that the
image was located in the plaintiff’s “My Documents” subdirectory, which included other
personal photographs. Clarke Decl. ¶ 6. The inappropriate file was not located in a temporary
internet directory, but “in a directory location that would have required an individual with Ms.
Brooks’s credentials (username and password) to access and save to.” Id. In any event, the
plaintiff contends that she should never have received the letter of warning at all because the
State Department was “in a cyber-security grace period.” Pl.’s Resp. Def.’s SMF ¶ 15 (citing
Pl.’s Mot. Ex. 26, ECF No. 70-25 (email dated November 28, 2006, from Cyber Security
Incident Program Adjudicator to the plaintiff)). The “grace period” cited by the plaintiff only
prevented such incidents from being “entered into [the plaintiff’s] permanent incident history
record.” See id; see also Pl.’s Mot. Ex. 26. This does not, as the plaintiff assumes, preclude
supervisors from issuing letters of warning.
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Prior to sending the letter of warning, Coquis also reviewed a snapshot file of the
plaintiff’s computer inbox provided to Coquis by the IT Department in response to a request he
had made on June 20, 2006, shortly after receiving the plaintiff’s “10 Truths” email. See Def.’s
SMF ¶ 13; Coquis Dep. at 65:21–66:5; Pl.’s SMF ¶ 15. Coquis explained that although he had
briefly “scanned” the snapshot when he first received it, he did not look closely at it because he
“didn’t think it was necessary at the time.” Id. at 66:3–15. He revisited the snapshot of the
plaintiff’s email inbox after seeing the “Spiderman.jpg” image “to see if there was more” in her
inbox. Id. at 63:14–21. Upon close examination of the snapshot, Coquis found other
inappropriate images in the plaintiff’s inbox. Def.’s SMF ¶ 13; Coquis Dep. at 61:16–63:21.
This discovery “did impact [Coquis’] decision not to renew the plaintiff’s contract.” Coquis
Dep. at 93:8–9; id. at 163:17–19; Def.’s SMF ¶ 14; Pl.’s Resp. Def.’s SMF ¶ 14 (without
contesting Coquis’ decision upon reviewing the file, plaintiff notes that Coquis did not tell
anyone of his final termination decision until February 1, 2007); Pl.’s SMF ¶ 20 (alleging Coquis
“terminated” plaintiff’s employment contract). He explained that this was not a decision he
made “overnight” but had considered for at least a month. Id. 93:9–19 (testifying that “the
decision . . . started to bubble up in October”); id. 163:20–164:2 (testifying that “this was not a
decision that was made overnight in November, this was a decision that was made over time, at
least several weeks if not a month, in the making”). According to Coquis, as early as October
24, 2006, he considered nonrenewal of the plaintiff’s employment contract when he denied her
request to attend training from January to March, 2007. Id. 93:8–16. On November 24, 2006,
Coquis submitted an email to the HR department, including Mitchell, stating that he had “come
across more information that has influenced [him] towards not renewing [the plaintiff’s] contract
in April of 2007.” Mitchell Decl. Ex. 3; See Brooks, 841 F. Supp. 2d at 305.
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Coquis notified the plaintiff on February 1, 2007, that her contract would not be renewed.
Def.’s SMF ¶¶ 15–16; see also Pl.’s Mot. Ex. 22, ECF No. 70-21 (email, dated February 1, 2007,
from Coquis to the plaintiff confirming nonrenewal of contract); Pl.’s Resp. Def.’s SMF ¶¶ 16,
17. Thereafter, Coquis was informed that the IT department had located a second inappropriate
image on the plaintiff’s computer system with the file name “FETAL-9WEEKSABORT[1].jpg”,
which had been saved to a State Department computer hard drive and subsequently accessed
using the plaintiff’s log-in credentials. Coquis Dep. at 68:13–69:22; Pl.’s Mot. Ex. 20, ECF No.
70-19 (letter of warning, dated November 27, 2007, from Coquis to the plaintiff). Upon
Mitchell’s recommendation, Coquis issued a second letter of warning to the plaintiff on February
27, 2007. Id.; Coquis Dep. at 68:13–69:22.
The plaintiff’s contract was allowed to expire on March 31, 2007. Def.’s SMF ¶¶ 15–16;
Coquis Dep. at 94:18–95:6; Pl.’s Resp. Def.’s SMF ¶ 16 (without contesting that Coquis gave 60
days’ notice, plaintiff notes without supportive citation that Coquis terminated her contract on
February 1, 2007). Coquis stated that he did not renew the plaintiff’s contract “[b]ased on her
performance, and based on the restructuring of our organization,” id. at 86:8–10, which included
closing SA-18, where the plaintiff was employed, id. at 171:5–7. The plaintiff filed her EEO
complaint on May 13, 2007. Def.’s SMF ¶ 17; Def.’s Reply Pl.’s Opp’n Final Mot. Dismiss
Summ. J. After Dep. Disc. Ex. 1 (“EEO Counselor’s Report”) at 9, ECF No. 76-2. The plaintiff
filed the instant suit on April 26, 2010. See generally Compl.
B. The Court’s Prior Decision Regarding the Plaintiff’s Retaliation Claim
During the first round of dispositive motion briefing, before discovery was completed,
the defendant sought dismissal or summary judgment of the plaintiff’s retaliation claim in Count
I of the Complaint on the ground that the plaintiff failed to establish causation. According to the
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defendant, Coquis made his decision not to renew the plaintiff’s contract in November 2006,
prior to the dates the plaintiff alleges she engaged in EEO activity. See Brooks, 841 F. Supp. 2d
at 295, 304. These dates were January 26, 2007, when the plaintiff sent a memorandum to
General Charles Williams titled “MSD EEO Complaint,” and March 13, 2007, when the plaintiff
sought EEO counseling. Id. The defendant also moved for dismissal or summary judgment of
the remaining three counts on grounds of failure to exhaust administrative remedies with respect
to the race discrimination claim (Count II), and failure to state a claim, under Federal Rule of
Civil Procedure 12(b)(6), with respect to the disability claim (Count III), and hostile work
environment claim (Count IV). Id. After converting the defendant’s motion into a motion for
summary judgment, judgment was granted in favor of the defendant on Counts II–IV, id. at 309,
but denied on the plaintiff’s retaliation claim, id. at 306. While the Court credited that Coquis
decided not to renew the plaintiff’s contract on November 24, 2006, id. at 303–04, the plaintiff
claimed to have engaged in protected activity shortly before the date. Specifically, the plaintiff
stated “that she previously complained to an EEO counselor, Anita Cary, about her EEO claims
on November 16, 2006,” id. at 304 (citing Pl.’s Resp. Def.’s SMF ¶ 22), as corroborated by
statements she had made in two EEO Counselor’s report that she has “been trying to file an EEO
Complaint since November 2006” and “initially informed Anita Carey [sic] EEO Representative
of [her] harassment and hostile working conditions.” Id. at 304–05. The Court found that “the
plaintiff’s evidence amounts to little more than her bare assertion with only limited
corroboration,” and that the evidentiary support of this claim “is indeed thin.” Id. at 305. Yet,
the Court held that the allegations and evidence were “sufficient to save her retaliation claim
from summary judgment,” id., based on the temporal proximity of the alleged November 16,
2006 meeting between the plaintiff and Cary, and Coquis’ “cryptic non-renewal decision eight
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days later alluding to” “new information” that led to this decision. Id. at 305–06. Although the
defendant claimed there was no record support that Coquis was aware of the plaintiff’s alleged
attempts to contact an EEO counselor before making his decision, the plaintiff stated that Coquis
had observed her meeting with Cary. Id. at 306. Despite finding that “the plaintiff’s evidence is
weak,” based on the extant record before the court, for which deposition discovery had not been
completed, the Court concluded that a “jury could sustain a finding of retaliation.” Id.
The Court afforded the parties ninety days from the date of the opinion to conduct
deposition discovery for the plaintiff’s remaining retaliation claim. Id. at 30–31. The ninety
days stretched to 469 days after the parties’ nine requests to extend the period for deposition
discovery were granted. See 4/25/2011 Minute Order; 6/15/2012 Minute Order; 7/24/2012
Minute Order; 10/12/2012 Minute Order; 11/09/2012 Minute Order; 12/12/2012 Minute Order;
1/28/2012 Minute Order; 2/22/2013 Minute Order (amended in 2/25/2013 Minute Order);
4/01/2013 Minute Order (ordering the close of discovery on May 13, 2013).
At the end of the discovery period, the defendant filed the second instant motion to
dismiss or, alternatively, for summary judgment on the plaintiff’s remaining retaliation claim.
See generally Def.’s Mem. In opposition, the plaintiff filed two documents, which the defendant
claims the plaintiff failed previously to produce or identify and are the subject of the defendant’s
pending motion to strike. See Def.’s Mot. Strike at 1, 5. These documents are: (1) a declaration
by Dwayne Butler, a former physical security officer at the State Department, who states that he
observed the plaintiff meet with EEO counselor Cary on November 15, 2006, see Declaration of
Dwayne Butler (“Butler Decl.”), ECF No. 70-10, and (2) a one-page document labeled
“HARASSMENT,” which appears to list a series of emails or instances of harassment. Id. Ex.
12 at 7, ECF No. 70-12. The defendant’s motions are currently before the Court.
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C. Plaintiff’s Disputed EEO Meeting in November, 2006
The crux of the plaintiff’s retaliation claim is that her contract was not renewed in
retaliation for her engagement in protected activities, and not because of the quality of her work,
a reorganization of the section in which she was employed, or her purported inappropriate use of
State Department computers, which prompted a cautionary warning in May, 2006 and two
disciplinary letters in November, 2006, and February, 2007. The Complaint refers to the
following dates when the plaintiff “felt forced to file an EEO complaint against her manager,
Roberto Coquis,” Compl. ¶ 17: February 6 and 16, 2007, and March 28, 2007, on which dates
the plaintiff alleges that she “informed Mr. Coquis and Mr. Coquis’ supervisor, General Charles
Williams, of the hostile work environment, discrimination, failure to accommodate, and
reprisal,” id. ¶ 18; see also id. ¶ 32L.4 The only contact with an EEO representative mentioned
in the Complaint is the plaintiff’s allegation that she filed her formal EEO complaint with the
State Department on March 13, 2007. Id. ¶ 8. The plaintiff stated in this EEO complaint that she
4
The Complaint also refers to the plaintiff’s “protected activity when, on several occasions throughout March 28 to
September 2006, [plaintiff] complained directly to Mr. Coquis, MSD Director, of the harassment and hostile work
environment.” Compl. ¶ 19. In the first round of dispositive motion briefing, the plaintiff did not point to her
informal complaints to Coquis as the trigger for the alleged retaliation. In this round of briefing, the plaintiff alleges
in her dispute of the defendant’s statement of material facts, that her protected activity extends to emails where she
sought accommodation for her eye condition, keratitis, and for complaining generally to supervisors regarding
“harassment and hostile work environment.” See Pl.’s Resp. Def.’s SMF ¶ 18; Pl.’s SMF ¶ 9–14. Only one of the
emails that the plaintiff relies on both complains of alleged harassment and precedes the date Coquis decided not to
renew the plaintiff’s contract. See Pl.’s Mot. Ex. 12, ECF No. 70-12; id. Ex. 13, ECF No. 70-13. Review of the
entire email thread, in which the plaintiff states to Coquis that she “feel[s] as thou [sic] [she is] being harassed,” Pl.’s
Mot. Ex. 12 at 5, does not suggest that the plaintiff was complaining of discrimination, but only disagreeing with her
supervisors’ appraisal of her work. See id. (email, dated October 10, 2006, from Brooks to Coquis). Notably, the
email made no mention of race. Thus, it cannot reasonably be considered an EEO-protected activity that could give
rise to retaliatory acts. See Peters v. D.C., 873 F. Supp. 2d 158, 202 (D.D.C. 2012) (finding that plaintiffs’
complaints that they were assigned too many cases and were penalized for a backlog, when other workers were not,
failed to plead discrimination based on race); Rattigan v. Gonzales, 503 F. Supp. 2d 56, 77 (D.D.C. 2007) (“While
no ‘magic words’ are required” to mark an exchange as protected activity, the employee “must in some way allege
unlawful discrimination.” (quoting Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006))).
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had “been trying to file an EEO Complaint since November 2006.” EEO Counselor’s Report at
9.
During the first round of dispositive briefing, the plaintiff raised, for the first time, in her
opposition motion that she engaged in EEO protected activity before November 24, 2006,
asserting that she met with Cary on November 16, 2006. See Pl.’s First Mem. Opp’n Def.’s Mot.
Dismiss Summ. J. (“Pl.’s First Opp’n”) at 21, ECF No. 30. After the parties proceeded to
discovery, the plaintiff was deposed and twice confirmed that she had met with Cary on
November 16, 2006. Dep. Tr. Yvonne Brooks (“Brooks Dep.”) at 18:20–21, 21:8–10. She
testified that on this date she had a “face to face” meeting with Anita Cary, an EEO Counselor, to
discuss a discrimination claim based on “[b]eing treated differently,” id. at 17:2–22, ECF No. 66-
3, and “constant harassment,” id. at 18:1, in relation to her job performance, id. at 17:2–25. The
plaintiff alleges that the meeting took place in the plaintiff’s office, id. at 21:21, which is in the
OBO South building, Compl. ¶ 11. The plaintiff recalled seeing Coquis “looking in [her] office”
and seeing her “talking to the EEO representative,” Anita Cary. Brooks Dep. at 30:18–20; see
also id. at 30:21–23 (plaintiff testifying that Coquis was aware of her EEO-protected activity
because she had observed “[h]im seeing [Cary] in [the plaintiff’s] office.”). The plaintiff did not
send any emails or written confirmation to Cary confirming that the meeting took place. Id. at
21:24–25, 22:1–10. She states that she recalls the date of the meeting on November 16, 2006,
because she “must have written it down,” but no such documentation has been presented or
discussed by the plaintiff. Brooks Dep. at 18:21. The plaintiff additionally testified that she
called Cary in December to set up a meeting to speak. Id. at 22:15–18.
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The plaintiff has since revised the date of this meeting to November 15, 2006.5 See Pl.’s
Mem. Opp. Def.’s Final Mot. Dismiss Alt. Summ. J. (“Pl.’s Opp’n”) at 7, ECF No. 72 (stating
that the meeting with Cary took place on November 15, 2006). She now submits as Exhibit 9 to
her opposition to the instant motion the declaration of Dwayne Butler, a former security officer
at the OBO, who seemingly corroborates the plaintiff’s account of this meeting. See generally
Butler Decl. The plaintiff does not discuss this newly-uncovered witness but merely cites to the
declaration in her opposition papers, id. at 3, 7, 8, 19, 20, 21, and in her statement of additional
material facts in dispute. Pl.’s SMF ¶¶ 12–14, 24; see generally Pl.’s Opp’n. 6 Butler states in
the declaration that he has been a physical security officer for over ten years and worked in OBO
South at the State Department adjacent to the plaintiff’s office. Butler Decl. ¶¶ 1, 3, 7. He
claims that “Coquis is [his] second line supervisor and has been so since [he] was hired.” Id. ¶ 2.
He confirms that Coquis was not located in OBO South but worked in the SA 6 State annex in
Rosslyn, VA. Id. ¶ 5. Butler states that on November 15, 2006, he “observed Anita Carey in
[the plaintiff’s] office having a conversation with” the plaintiff through the glass front of her
office. Id. ¶¶ 12, 13. He further states that he viewed Coquis “directly outside [the plaintiff’s]
office, watching [the plaintiff] through the glass front, as she spoke to Anita Carey.” Id. ¶ 14.
Whether the meeting took place on November 15 or 16, 2006, has no bearing on the
defendant’s argument, which is: that this meeting did not take place at all; the meeting was not
5
It is not clear from the record when, but at some point during discovery, it appears that November 15, 2006, was
the alleged date of this meeting, as Coquis was questioned during his deposition whether he observed the plaintiff’s
meeting with Cary take place “on November 15th.” See Coquis Dep. at 77:12–17.
6
The Court recognizes that there is a discrepancy in the alleged declarant’s name. The defendant points out that this
declarant, a former State Department employee, spells his name “DeWayne Butler,” not “Dwayne Butler,” as stated
in the declaration. Def.’s Mem. at 5. Without reaching a conclusion as to the declarant’s actual name, the Court will
refer to the declarant using the name provided in the declaration. According to the defendant, this inconsistency is
but one of several indicia that undermines the credibility of this declaration. See infra Part III.A.
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observed by Coquis; Coquis did not know who Cary was at the time; and, if such a meeting did
in fact occur, it must have occurred in the first week of December, after Coquis had already
decided not to renew the plaintiff’s contract. See generally Def.’s Mem.
In Cary’s deposition, she states that she does not remember having a meeting with the
plaintiff in November, but that she had a “brief encounter,” Dep. Anita Cary (“Cary Dep.”) at
58:4, ECF No. 66-6, with the plaintiff during an “annual inservice training, which was from
December the 4th through December the 8th of 2006.” Id. at 54:17–19; id. at 26–30 (agenda of
conference in OBO South from December 4–8, 2006). Cary stated that the two met in the
plaintiff’s workspace in OBO South in December, but that they “didn’t talk very long at all” and
it “didn’t seem as if [the plaintiff] wanted to proceed or do anything.” Id. at 55:5–22. Cary
testified that she must have met with the plaintiff during this week because “that’s the only time”
Cary, id. at 62:9–10, whose office was located in Rosslyn, id. at 41:10–12, would have been in
OBO South, because she “had no other reason to be [in OBO South] for anything,” id. at 62:9–
13. Cary testified that Coquis would not have been at the inservice training in December. Id. at
58:13–15. Cary testified that she did not have any record in her calendar of a meeting with the
plaintiff in November or December, id. at 109:3–16, and no “recollection of having a
conversation on the phone” with the plaintiff, id. at 99:1–15, and that she would usually recollect
such a conversation, record it on her calendar, and notify the Office of Civil Rights. Id. at
109:3–16; 99:1–15. She also testified that when she meets with someone, they are given “a copy
of a notice of rights and responsibilities” that the parties review and “on the last page, [Cary] and
the aggrieved have to sign and date it.” Id. at 103:11–18. She did not review this notice with the
plaintiff when they “brief[ly]” met in December. Id. at 106:7–9.
15
Coquis, whose office is in Rosslyn and not in the OBO South building in Springfield,
Virginia, Coquis Dep. at 72:21–73:1; 75:15–17; Cary Dep. at 41:10–12; Cary Dep. at 26–30,
does not recall being in the plaintiff’s office building when this counseling meeting allegedly
took place “on November 15th or thereabouts.” Id. 73:9–22. He testified that he “did not spend
a lot of time down at OBO South.” Id. 78:21–22. Notably, he further stated in his deposition
that he did not even know that Cary was an EEO representative. Id. 75:21–76:3. He denies that
“[o]n November 15, 2006,” he “observe[d] Ms. Cary in a meeting with” the plaintiff or
“observe[d] Ms. Cary in [the plaintiff’s] office.” Id. 77:12–17.
The only evidence corroborating the plaintiff’s claim that her meeting with Cary occurred
in November 2006 before Coquis decided to fire her is the Butler declaration, which the
defendant has now moved to strike.
II. LEGAL STANDARD
A. Conversion to Motion for Summary Judgment
The defendant has moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), for
dismissal, or, alternatively, for summary judgment, pursuant to Federal Rule of Civil Procedure
56 on the plaintiff’s retaliation claim. The Federal Rules of Civil Procedure provide that if
“matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment,” and if a motion is so converted, “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.” FED. R.
CIV. P. 12(d). The Circuit reviews a district court’s decision to convert a motion to dismiss into
a summary judgment motion for an abuse of discretion. Colbert v. Potter, 471 F.3d 158, 164–65
(D.C. Cir. 2006); Flynn v. Tiede–Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (“The
decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to
16
the sound discretion of the trial court.”). In using this discretion, “the reviewing court must
assure itself that summary judgment treatment would be fair to both parties.” Tele–Commc’ns of
Key W., Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). Therefore, “[i]n converting
the motion, district courts must provide the parties with notice and an opportunity to present
evidence in support of their respective positions.” Kim v. United States, 632 F.3d 713, 719 (D.C.
Cir. 2011).
If extra-pleading evidence “is comprehensive and will enable a rational determination of
a summary judgment motion,” a district court will be more likely to convert to summary
judgment, but “when it is scanty, incomplete, or inconclusive,” the district court is more likely to
decline to convert to summary judgment and permit further discovery. See 5C CHARLES ALAN
WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE (“WRIGHT & MILLER”) § 1366 (3d ed. 2012).
Thus, there is no bright-line threshold for conversion under Rule 12(d); the touchstone is fairness
and whether consideration of summary judgment is appropriate, in light of the nature of the
extra-pleading material submitted, the parties’ access to sources of proof, and the parties’
concomitant opportunity to present evidence in support or opposition to summary judgment. In
light of the substantial extra-pleading evidence that has been submitted and the ample time
afforded the parties to access sources of proof, the Court will consider matters beyond the
pleadings and treat the defendant’s motion as one for summary judgment.
B. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
17
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The burden is on the moving party to demonstrate that there is an “absence of a
genuine issue of material fact” in dispute. Id. at 323.
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 255 (1986). The Court is
only required to consider the materials explicitly cited by the parties, but may on its own accord
consider “other materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be
“genuine,” the nonmoving party must establish more than “[t]he mere existence of a scintilla of
evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere
allegations” or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir.
2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154
(D.C. Cir. 1993); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P.
56(c)(1); Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (noting that
at summary judgment stage, plaintiff “can no longer rest on such ‘mere allegations,’ but must
‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the summary
judgment motion will be taken to be true.’” (quoting Sierra Club v. EPA, 292 F.3d 895, 898–
99 (D.C. Cir. 2002) (ellipsis and second alteration in original))). “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby,
477 U.S. at 249–50 (citations omitted).
18
“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. In that situation,
“[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party
has failed to make a sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Id. Notably, “[s]elf-serving testimony does not create genuine
issues of material fact, especially where that very testimony suggests that corroborating evidence
should be readily available.” Fields v. Office of Johnson, 520 F. Supp. 2d 101, 105 (D.D.C.
2007). Additionally, “on summary judgment, statements that are impermissible hearsay or that
are not based on personal knowledge are precluded from consideration by the Court.” Riggsbee
v. Diversity Servs., Inc., 637 F. Supp. 2d 39, 46 (D.D.C. 2009); accord FED. R. CIV. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); Gleklen v. Democratic Cong. Campaign
Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (holding that “[v]erdicts cannot rest on
inadmissible evidence” and “sheer hearsay . . . therefore counts for nothing” at summary
judgment).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury,” however, “is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d
118, 123 (D.C. Cir. 2011). Particularly in a case such as this where the non-moving party relies
almost entirely upon her own generally corroborated statements in depositions, declarations, and
interrogatory responses to create a genuine issue of material fact, the Court must carefully assess
whether the plaintiff’s evidence is “merely colorable,” Liberty Lobby, 477 U.S. at 249, or
whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving
19
party,” id. at 248. The Court must review the record “taken as a whole.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150–51 (2000) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). On the one hand, the Court must accept all of
the non-movant’s evidence as true and give her the benefit of all justifiable inferences. See id. at
255. The Court may not make credibility determinations or weigh the evidence, Reeves, 530
U.S. at 150, as “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Id. (quoting Liberty
Lobby, 477 U.S. at 255). On the other hand, a non-movant’s allegations that are “generalized,
conclusory and uncorroborated by any evidence other than the [non-movant’s] own deposition
testimony” are “insufficient to establish a triable issue of fact”—at least where the nature of the
purported factual dispute reasonably suggests that corroborating evidence should be available.
See Akridge v. Gallaudet Univ., 729 F. Supp. 2d 172, 183 (D.D.C. 2010); see also GE v. Jackson,
595 F. Supp. 2d 8, 36 (D.D.C. 2009) (observing that when a “declaration is self-serving and
uncorroborated” it is “of little value at the summary judgment stage”).
III. DISCUSSION
Pending before the Court are the defendant’s motions for summary judgment and to
strike two of the plaintiff’s exhibits attached to her opposition. As described below, the
resolution of the motion to strike directly bears upon the resolution of the summary judgment
motion. Accordingly, the Court will begin by discussing the defendant’s motion to strike before
addressing the defendant’s summary judgment motion.
A. Motion to Strike
The defendant has moved to strike two previously-undisclosed documents attached to the
plaintiff’s opposition, claiming that the plaintiff has failed to disclose these to the defendant
20
pursuant to its obligation under Federal Rule of Civil Procedure 26, and that this omission is not
“substantially justified” or “harmless” under Rule 37, warranting exclusion of both documents.
See FED. R. CIV. P. 26, 37; Def.’s Mot. Strike at 5–7. The plaintiff does not dispute that these
exhibits were not disclosed during discovery, but instead responds that disclosure of the Butler
Declaration was not required under Rule 26 because the declaration is intended solely for
impeachment purposes and “does not attempt to establish any new facts.” See Pl.’s Opp’n Def.’s
Mot. Strike (“Pl.’s Opp’n Mot. Strike”) at 1–2, ECF No. 80. The plaintiff further argues that
even if disclosure were required, the declaration should not be excluded because the disclosure
posed “no surprise to Defendant” who “would have known of [the declarant’s existence] as its
employee.” Pl.’s Opp’n Mot. Strike at 4. The plaintiff is silent with respect to the second
document, which is a single page titled “HARASSMENT,” providing neither a defense nor an
explanation for this undated, anonymously authored document which appears on page 7 of
Exhibit 12 in the plaintiff’s opposition motion. Accordingly, because the plaintiff has not
responded to the defendant’s challenge to the “HARASSMENT” document, the defendant’s
motion to strike this document is granted as conceded, and the one-page document will be struck
from Exhibit 12 of the plaintiff’s opposition. See Schneider v. Kissinger, 412 F.3d 190, 200 n.1
(D.C. Cir. 2005) (finding that arguments that the plaintiff does not address may be treated as
conceded). The Court now turns to the dispute over the challenged Butler declaration.
As noted, the first document the defendant seeks to strike is the disputed Butler
Declaration, which is a signed statement dated September 25, 2013, by a State Department
physical security officer intended to corroborate the plaintiff’s testimony that she met on
November 15, 2006, with Cary and that Coquis observed them. Butler states that he “observed
Anita Carey [sic] in [the plaintiff’s] Office having a conversation with” the plaintiff, Butler Decl.
21
¶¶ 12–13, and further that he was not the only person watching the two women meet because he
“observed Roberto Coquis directly outside Ms. Brook’s [sic] office, watching her through the
glass front, as she spoke to Anita Carey [sic],” id. ¶ 14. As the defendant points out, this
declaration by Butler, an undisclosed witness, “was only obtained five days prior to the filing of
[the plantiff’s] Opposition, almost seven years after the events that he allegedly witnessed.”
Def.’s Mot. Strike at 7.
“[D]istrict courts have ‘broad discretion in structuring discovery.’” Hussain v.
Nicholson, 435 F.3d 359, 363–64 (D.C. Cir. 2006) (quoting Edmond v. U.S. Postal Serv. Gen.
Counsel, 949 F.2d 415, 425 (D.C. Cir. 1991)). Consequently, “[t]he decision to grant or deny a
motion to strike is vested in the trial judge’s sound discretion.” Canady v. Erbe Elektromedizin
GmbH, 384 F. Supp. 2d 176, 180 (D.D.C. 2005); see also Galvin v. Eli Lilly & Co., 488 F.3d
1026, 1030 (D.C. Cir. 2007) (recognizing that district courts have broad discretion over
discovery); Hussain, 435 F.3d at 363 (same); Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996) (holding that Circuit reviews trial court’s
determination of motion to strike for abuse of discretion).
1. Failure to Disclose Witness Under Rule 26
Under the Federal Rules of Civil Procedure, parties are required to provide to the
opposing party, without “awaiting a discovery request,” the contact information of “each
individual likely to have discoverable information” in their initial disclosures. FED. R. CIV. P.
26(a)(1)(A); see also FED. R. CIV. P. 26(b)(1) (scope of discovery under Rule 26(b) includes “the
identity and location of persons who know of any discoverable matter.”). Rule 26 further
requires a party to “supplement” any disclosure made under Rule 26(a) “if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if the additional
22
or corrective information has not otherwise been made known to the other parties during the
discovery process or in writing.” FED. R. CIV. P. 26(e)(1).
Generally, “[i]f a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at trial.” FED. R. CIV. P. 37(c). Exclusion is not appropriate,
however, when “the failure was substantially justified or is harmless.” Id. A court is also vested
with discretion to impose other sanctions, such as “order[ing] payment of the reasonable
expenses, including attorneys’ fees, caused by the failure,” which may be ordered “[i]n addition
to or instead of” the sanction of exclusion. Id. The phrase “substantially justified” is generally
interpreted to mean “‘justified in substance or in the main’—that is, justified to a degree that
could satisfy a reasonable person.” See Pierce v. Underwood, 487 U.S. 552, 565 (1988). The
advisory committee’s commentary to Rule 37(c) indicates that exclusion is a “self-executing
sanction,” and that “[l]imiting the automatic sanction to violations ‘without substantial
justification,’ . . . is needed to avoid unduly harsh penalties in a variety of situations.” See FED.
R. CIV. P. 37(c) advisory committee’s note (1993 Amendments). The advisory committee note
goes on to list examples of situations in which violations would be “substantially justified” or
“harmless,” which include: “the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the
name of a potential witness known to all parties; the failure to list as a trial witness a person so
listed by another party; or the lack of knowledge of a pro se litigant of the requirement to make
disclosures.” Id.
Rule 56 clearly contemplates the submission of declarations in support of summary
judgment. FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
23
and show that the affiant or declarant is competent to testify on the matters stated.”). The rule
only sets forth the requirements for an affidavit or declaration submitted in support of or
opposition to a motion for summary judgment, however; “it does not impart any ‘right’ to submit
such affidavits or declarations.” Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26, 34 (D.D.C.
2013). The important consideration in deciding a motion to strike an affidavit “filed in response
to a motion for summary judgment” is “whether the affidavit contradicts a prior sworn statement
without justification or the filing party breached its obligations in discovery,” Galvin v. Eli Lilly
& Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007).
In this case, it is clear that the disclosure of the declaration is untimely under Rule 26.
The plaintiff never identified Butler as a possible witness in her initial Rule 26(a) disclosures.
See Def.’s Mot. Strike Ex. 4 at 2–5, ECF No. 75-4. Discovery closed on May 13, 2013. See
4/1/2013 Minute Order. At no point before the close of discovery did the plaintiff inform the
defendant that she had found Butler, who would be able to provide corroboration for the
plaintiff’s claimed meeting with EEO Representative Cary in November, 2006, the evidence of
which the Court had initially found was “weak.” Brooks, 841 F. Supp. 2d at 306; see also Def.’s
Mot. Strike at 3. Nor did the plaintiff seek leave to extend the discovery period to accommodate
the late disclosure and deposition of Butler. Instead, the plaintiff simply introduced this
declarant by including his statement as Exhibit 9 in her opposition to the defendant’s instant
motion for summary judgment, without further discussion or explanation. See generally Butler
Decl. The plaintiff cites the Butler Declaration in support of her contention that she complained
of harassment to the EEO counselor Anita Cary on November 15, 2006, Pl.’s Opp’n at 7, and
that Coquis “observed Ms. Brooks speaking with . . . Cary,” id. at 19; see also id. at 8, 20 (citing
to “Exhibit 9,” the Butler Declaration, for support that Coquis hired additional employees after
24
the plaintiff was terminated). The plaintiff also cites to this exhibit in her response to the
defendant’s statement of material facts not in dispute to support her contention that her first EEO
counseling meeting with Cary occurred in November. See Pl.’s Resp. Def.’s SMF ¶ 18, ECF No.
70-29. As the defendant points out, the “[p]laintiff has never acknowledged that Mr. Butler has
been belatedly introduced into this litigation, much less offered an explanation for why a
declaration from him was only obtained five days prior to the filing of her Opposition . . . .”
Def.’s Mot. to Strike at 3. The plaintiff responds that the declaration is merely used to impeach
the testimony of Anita Cary and, thus, need not be disclosed under Rule 26(a)(1)(A)(i) (requiring
disclosure of individuals with discoverable information “unless the use would be solely for
impeachment”). This argument fails because it is evident that the declaration is not being offered
as impeachment evidence, but to address the weakness identified in the Court’s prior decision by
corroborating the timing of the plaintiff’s claimed meeting with EEO representative Anita Cary
in November 2006.
Specifically, the import of this date was not lost on either party—this Court denied the
defendant summary judgment on the plaintiff’s retaliation claim because the plaintiff had
sufficiently alleged the causal element for the plaintiff’s retaliation claim and raised an issue
regarding the timing of her protected activity, while noting the weakness of the plaintiff’s
evidence that this meeting did, indeed, occur on November 16, 2006. Brooks, 841 F. Supp. 2d
at 303–06. As the defendant points out, “[i]t strains credulity to think that Plaintiff, who has
litigated this matter for more than two years, would not appreciate the relevance of a potential
witness or person having knowledge of the facts of her case.” Def.’s Mot. Strike at 7. The
Butler declaration is offered to establish both that this meeting occurred, and that Coquis
observed this meeting. See Butler Decl. These two facts are necessary to bolster the plaintiff’s
25
retaliation claim, not merely because it will impeach witnesses who refute that this meeting ever
took place. See Elion v. Jackson, 544 F. Supp. 2d 1, 6–7 (D.D.C. 2008) (finding that testimony
was not offered “solely for impeachment purposes” and, thus, had to be disclosed under Rule
26(a) where the testimony was used “to rebut an inference about the facts of this case”); see also
Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993) (substantive evidence
is evidence “offered to establish the truth of a matter to be determined by the trier of fact” while
impeachment evidence is evidence offered to “discredit a witness”) (internal quotation marks and
citation omitted).7 The declaration corroborates facts necessary to bolster the plaintiff’s
retaliation claim and push it beyond the “merely colorable” range. See Liberty Lobby, 477 U.S.
at 249. Accordingly, it cannot be said to be “solely for impeachment” purposes. Consequently,
the plaintiff was obliged to disclose Butler as a witness under Rule 26.
7
The plaintiff relies on two cases outside of this jurisdiction to support her argument that, assuming Butler is an
impeachment witness, the plaintiff was under no obligation to disclose him because the defendant did not
“specifically request for the disclosure of impeachment witnesses” in its discovery request, and “Rule 26(b)’s
discovery disclosure requirement is triggered only in ‘response to a specific discovery request.’” Pl.’s Opp’n Mot.
Strike at 3 (citing Morris v. Metals USA, 2:09-CV-1267-DCN, 2011 WL 94559 (D.S.C. Jan. 11, 2011), and
Newsome v. Penske Truck Leasing Corp., 437 F. Supp. 2d 431, 438 (D. Md. 2006)). These two cases are inapposite
because the non-disclosure exception articulated in those cases applies only to impeaching witnesses, which is not
the nature of Butler’s declaration here. As these referenced cases point out, if a witness’s testimony is used for its
substance, the witness’s identity must be disclosed. See Morris, 2011 WL 94559 at *1 (finding that witness’s
testimony was substantive and ordering exclusion of the undisclosed witness’s testimony at trial where witness was
not previously disclosed); Newsome, 437 F. Supp. 2d at 436 (finding that witness’s testimony was substantive and
ordering disclosure of the testimony to the other party); see also FED. R. CIV. P. 26(A) (“[A] party must, without
awaiting a discovery request, provide to the other parties” the name and contact information of witnesses with likely
discoverable information). The plaintiff here fails to heed the Newsome court’s caution:
A party erroneously designating evidence as “impeachment evidence” to prevent disclosure does
so at its own peril. If the impeachment evidence was discoverable and wrongfully withheld, the
prejudiced party could . . . seek to have the evidence excluded from trial. If the impeachment
evidence has a substantive purpose, a party cannot hide the ball in discovery . . . . A party’s proper
designation of impeachment evidence is critical and must be prudently exercised.
Newsome, 437 F. Supp. 2d at 438.
26
2. Sanctions for Violating Rule 26
Rule 37(c) governs the appropriate remedy for untimely disclosures of witnesses.
Exclusion is not appropriate when “the failure was substantially justified or is harmless.” FED.
R. CIV. P. 37(c). In this case, however, the failure to identify Butler as a declarant is neither
substantially justified nor harmless. “[T]he burden of showing substantial justification and
special circumstances is on the party being sanctioned,” Banks v. Vilsack, 292 F.R.D. 158, 160
(D.D.C. 2013) (citing Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir.1994)), but the
plaintiff has made little effort to justify this late disclosure here. The plaintiff argues that the late
disclosure of the Butler declaration “posed no surprise to Defendant” because the defendant must
have known that Butler was an employee who “would have seen or heard conversations and/or
events around the workplace.” Id. at 5. The plaintiff further responds that such late disclosure is
harmless because the defendant may “speak with Mr. Butler at any time Defendant desires.”
Pl.’s Opp’n Mot. Strike at 5. This is not the case. The plaintiff has not demonstrated that
omission of this information was substantially justified or harmless, see id. at 4–6, for two
reasons.
First, the plaintiff is incorrect that the “defendant’s familiarity with Mr. Butler as its own
employee negates any element of surprise in this situation.” Id. at 4. The surprise does not come
from learning Mr. Butler’s identity, but by learning that the plaintiff intends to use him as a
declarant in support of the plaintiff’s version of the facts. The contents of the declaration would
certainly come as a surprise, given that the parties engaged in discovery for over two years on the
plaintiff’s retaliation claim, without any mention of Butler or any other witness corroborating the
November 15/16, 2006, meeting. See Def.’s Mot. Strike at 3. Indeed, the plaintiff’s own
deposition testimony suggested that there was no such witness. See Brooks Dep. at 30:12–16
27
(identifying Roberto Coquis, and no one else, as having observed the meeting with Cary).
Moreover, assuming arguendo that the defendant expected Butler to be called as a witness, it is
“undoubtedly prejudiced by being unable to cross-examine” Butler in a deposition due to the
plaintiff’s untimely disclosure, see Wannall, 292 F.R.D. at 36, particularly since the defendant
has strenuously challenged the veracity of the substance of the Butler declaration. Def.’s Mot.
Strike at 3–5.8 Contrary to the plaintiff’s assertion, the defendant may not “speak with Mr.
Butler at any time.” Pl.’s Opp’n Mot. Strike at 5. Court-ordered discovery has already closed,
see 4/1/2013 Minute Order, and Butler—contrary to the contents of his declaration— is no
longer employed by the defendant. See Def.’s Reply Def. Mot. Strike at 5; id. Ex. 2, ECF No.
75-2 (contracting action form and email demonstrating that Butler resigned in 2009).
Second, the manner in which the plaintiff submitted the Butler Declaration was, in
particular, not “substantially justified” or “harmless.” The plaintiff did not seek leave of the
Court to file this late declaration, nor did she confer with the defendant before doing so. The
plaintiff did not ask the Court to reopen expert discovery or otherwise provide the defendant with
an opportunity to depose this witness before the close of discovery. See Wannall, 292 F.R.D. at
33. Moreover, the plaintiff conspicuously omitted any discussion of this new declarant in her
8
The defendant notes that the declaration is “rife with inconsistencies that call its probative value into question.”
Def.’s Mot. Strike at 4. According to the defendant, the document “twice misspells the declarant’s name,” id. (citing
Butler Decl.), identifying the declarant as a physical security officer named “Dwayne Butler,” whereas the State
Department’s “employment records reveal that a Physical Security Officer named DeWayne Butler was employed
with OBO.” Id. at 4 (emphasis in original). Moreover, the defendant contends that although the contents of the
declaration, dated September 25, 2013, suggest that the declarant is currently employed at the OBO, id. (citing
Butler Decl. ¶¶ 1–2) (Butler “ha[s] been Physical Security Officer [sic] for over ten years” and “Coquis is [his]
second-line supervisor and has been so since [Mr. Butler] was hired.” (emphasis in original)), employment records
reveal that physical security officer DeWayne Butler resigned on August 28, 2009, and Coquis resigned on January
20, 2009. Id.; id. Ex. 2 at 2, 5, ECF No. 75-2 (Butler personal services contracting action form and email, dated
August 25, 2008, from Butler submitting a letter of resignation); id. Ex. 3 at 2, ECF No. 75-3 (Coquis Notification
of personnel action, with approval date of January 16, 2009). Exploring these inconsistencies and others would
surely be important to developing the defendant’s case. Thus, the late disclosure was certainly prejudicial to the
defendant.
28
opposition motion, merely citing to the declaration itself, which was attached as one of 28
exhibits submitted with the plaintiff’s opposition. This was highly prejudicial to the defendant.
Under the circumstances here, exclusion is appropriate. See Daniels v. D.C., No. 11-
1331, 2014 WL 535213, at *7 (D.D.C. Feb. 11, 2014) (recognizing that exclusion is the
appropriate remedy for late disclosed witnesses); Blake v. Securitas Sec. Servs., Inc., 292 F.R.D.
15, 19 (D.D.C. 2013) (excluding witnesses from rebuttal expert report that were not disclosed
during discovery as “the overwhelming weight of authority is that preclusion is required and
mandatory absent some unusual or extenuating circumstances—that is, substantial justification.”
(quoting Elion v. Jackson, No. 05-0992, 2006 WL 2583694, at *1 (D.D.C. Sept. 8, 2006)
(emphasis in original))); Nuskey v. Hochberg, 723 F. Supp. 2d 229, 233 n.1 (D.D.C. 2010)
(ordering that witnesses who were not disclosed under Rule 26 would be excluded absent a
showing that plaintiff’s “failure to identify them earlier was substantially justified or harmless”);
Thomas v. Paulson, 507 F. Supp. 2d 59, 81 (D.D.C. 2007) (excluding affidavit attached to
plaintiff’s opposition from consideration of defendant’s summary judgment motion because
witness was never disclosed during discovery). Here, the plaintiff breached her discovery
obligations by failing to disclose Butler after over one year of discovery and has made no
showing that the nondisclosure was substantially justified or harmless. In these circumstances,
the Butler declaration must be excluded.9
9
Even if the Court included the Butler declaration in its analysis of the plaintiff’s summary judgment motion, the
outcome would be the same, see infra, as the Court reaches its decisions on grounds other than those established by
the Butler declaration.
29
B. Retaliation Claim
1. Legal Standard
“Title VII’s anti-retaliation provision makes it unlawful for an employer ‘to discriminate
against [an] employee . . . because he has opposed any practice’ made unlawful by Title VII or
‘has made a charge, testified, assisted, or participated in’ a Title VII proceeding.” Steele v.
Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008) (quoting 42 U.S.C. § 2000e–3(a)). A prima facie
case of retaliation requires a plaintiff to show that “(1) [s]he engaged in protected activity; (2)
[s]he was subjected to an adverse employment action; and (3) there was a causal link between
the protected activity and the adverse action.” Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.
Cir. 2012) (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)); see also Howard
R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of Library of Cong., Inc. v. Billington,
737 F.3d 767, 772 (D.C. Cir. 2013) (citing Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir.
2009)); McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012) (“To prove unlawful
retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2)
that the employer took a materially adverse action against him; and (3) that the employer took
the action ‘because’ the employee opposed the practice.”); Wiley v. Glassman, 511 F.3d 151, 155
(D.C. Cir. 2007); Smith v. D.C., 430 F.3d 450, 455 (D.C. Cir. 2005); Morgan v. Fed. Home Loan
Mortg. Corp., 328 F.3d 647, 650–51 (D.C. Cir. 2003); Singletary v. District of Columbia, 351
F.3d 519, 524 (D.C. Cir. 2003); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)
With respect to the first element, protected activity encompasses utilizing informal
grievance procedures, such as complaining to management or human resources about the
discriminatory conduct, as well as the filing of both informal and formal EEO complaints.
Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007) (“It is well settled that Title VII
30
protects informal, as well as formal, complaints of discrimination.”); Bell v. Gonzales, 398 F.
Supp. 2d 78, 94 (D.D.C. 2005) (“Initiation of EEO counseling to explore whether an employee
has a basis for alleging discrimination constitutes protected activity, even in the absence of an
unequivocal allegation of discrimination.”). The second element entails an employment action
that is “materially adverse,” which is defined as one that is “harmful to the point that [it] could
well dissuade a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Ginger v. D.C., 527 F.3d
1340, 1346 (D.C. Cir. 2008).
Finally, a Title VII retaliation claim requires “proof that the desire to retaliate was the
but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517, 2528 (2013). In other words, “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.” Id. at 2533. The “causal connection . . .
may be established by showing that the employer had knowledge of the employee’s protected
activity, and that the adverse . . . action took place shortly after that activity.” Rochon v.
Gonzales, 438 F.3d 1211, 1220 (D.C. Cir. 2006) (quoting Mitchell v. Baldrige, 759 F.2d 80, 86
(D.C. Cir. 1985)); Light v. Mills, 697 F. Supp. 2d 118, 122–23 (D.D.C. 2010) (same) (citing
Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000)).
The McDonnell Douglas burden-shifting framework applies to retaliation claims such
that “[w]here, as here, the employer has proffered a legitimate, non-retaliatory reason for a
challenged employment action, the central question is whether the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-retaliatory reason was not
the actual reason and that the employer intentionally retaliated against the employee in violation
31
of Title VII.” McGrath, 666 F.3d at 1383 (internal quotation marks, citation, and brackets
omitted); see also Gilbert v. Napolitano, 670 F.3d 258, 261 (D.C. Cir. 2012) (quoting Hamilton,
666 F.3d at 1351) (applying burden-shifting framework to discrimination and retaliation claims);
Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (observing that “these principles apply
equally to retaliation claims”).10
2. Application
In the first round of briefing, the Court found that the salient inquiry in this case was
whether the plaintiff could establish a causal link between her protected activity and Coquis’
decision not to renew her contract. See Brooks, 841 F. Supp. 2d at 304–06. The plaintiff filed
her EEO Complaint on March 13, 2007, see generally EEO Complaint, which post-dated
Coquis’ decision not to renew the plaintiff’s contract. Brooks, 841 F. Supp. 2d at 304. The
plaintiff then sought to establish that she had engaged in EEO-protected activity before Coquis
made this decision, claiming that she had informally complained to EEO representative Cary on
November 16, 2006. Brooks, 841 F. Supp. 2d at 304–05. This chronology is why the date and
occurrence of this alleged meeting between the plaintiff and Cary gained so much importance.
The Court closely examined the evidence regarding the temporal sequence between the date of
this meeting on November 16, 2006, and Coquis’ decision not to renew her contract eight days
later, as memorialized in an email to HR that cryptically stated that Coquis had come across
“new information” that led to his decision. Id. at 305–06. The Court denied the defendant
summary judgment on the plaintiff’s retaliation claim given the ambiguity in Coquis’ email to
10
The McDonnell Douglas framework governs both the plaintiff’s Title VII and 42 U.S.C. § 1981 claims. See
Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (citing Berger v. Iron Workers Reinforced
Rodmen Local 201, 843 F.2d 1395, 1412 n.7 (D.C. Cir. 1998) (applying framework to § 1981 claims)).
32
HR and the plaintiff’s assertion that such meeting had taken place, which raised a material issue
of fact based on the record in January 30, 2012. Id.
Since that time, after over a year of discovery, the defendant has supplemented the
evidence in the record with the depositions of Coquis and Cary, the declarations of Mitchell and
the defendant’s 30(b)(6) witness, Clarke, and has conducted a further forensic examination of the
plaintiff’s workplace computer data. See generally Def.’s Mem. Exs. 2–6. The defendant has
added evidence that Coquis had approached HR about the non-renewal of the plaintiff’s contract
in early November, Mitchell Decl. ¶ 4; id. Ex. 1, before the plaintiff’s alleged meeting with Cary,
and had been considering the nonrenewal of her contract “over time, at least several weeks if not
a month” before sending the email to HR, Coquis Dep. at 164:1–2. Indeed, the evidence shows
that Coquis was considering the nonrenewal of the plaintiff’s contract as early as October 24,
2006, when he denied her request to attend a training that would take place the following year,
id. at 170:8–22, 139:1–5; Pl.’s Resp. Def.’s SMF ¶ 11 (disputing Coquis’ motive and stating that
in January 2007 Coquis approved the plaintiff’s development plan which “noted” training
courses for 2007).
The defendant has also provided evidence of legitimate, nondiscriminatory reasons for
Coquis’ non-renewal decision that all occurred before Coquis made this decision, including: (1)
Coquis’ testimony that the plaintiff sent the inappropriate “10 Truths” email to colleagues, which
Coquis “took [] personally as discriminatory” and found “appalling.” id. at 157:1–5; (2) Coquis
deposition testimony stating that, before he made his decision, he became aware of the
inappropriate “Spiderman.jpg” image on the plaintiff’s computer system, Coquis Dep. at 57:3–
16; (3) a forensic examination of the plaintiff’s files confirming that the “Spiderman.jpg” image
was downloaded to the plaintiff’s “My Documents” subdirectory that would have required the
33
plaintiff’s log-in credentials to write into, Clarke Decl. ¶ 6; (4) Coquis’ testimony that he had
found other inappropriate images in a snapshot of the plaintiff’s inbox, id. at 65:21–66:5; 61:16–
63:21; (5) Mitchell’s declaration that OBO South was being restructured under a cost savings
effort, Mitchell Suppl. Decl. ¶¶ 2, 5, and that “there was discussions about getting rid of SA-18,”
Coquis Dep. at 86:8–10; 86:14–15, “in about the summer or fall of 2006,” Mitchell Suppl. Decl.
¶ 5, and Coquis was advised that downsizing through attrition would be “the best approach,” id.;
(6) Coquis’ testimony that he believed the plaintiff “was becoming careless and irresponsible,”
Coquis Dep. at 87:14, and “was not able to properly put together [a] PPR presentation,” 87:10–
11, as he cautioned her in an email on May 24, 2006, id. at 156:1–9, and that thereafter her work
was “repeatedly late, incomplete, and/or inadequate,” Def.’s SMF ¶ 7.11
The plaintiff, by contrast, has supplemented the record only with her own deposition
testimony, and the Butler declaration, which this Court has stricken as untimely disclosed. See
Part III.A., supra. The Court is, thus, left to evaluate the plaintiff’s evidence of a causal link
between her alleged protected activity and the non-renewal of her contract with largely the same
evidence the plaintiff relied upon to contest the defendant’s first motion for summary judgment:
(1) the plaintiff’s EEO Counselor’s Report, Pl.’s First Opp’n Ex. 44; (2) the plaintiff’s formal
EEO Complaint, filed by the defendant as Exhibit 1 in the defendant’s reply to the instant motion
for summary judgment, see EEO Counselor’s Report at 9, and now, (3) the plaintiff’s own
deposition testimony, also filed by the defendant, as Exhibit 3 to the instant motion for summary
judgment, see generally Brooks Dep. Both EEO reports contain the same information supplied
by the plaintiff:
11
The plaintiff claims that she developed keratitis which affected her work. Pl.’s Resp. Def.’s SMF ¶ 7. This does
not negate the defendant’s evidence that the plaintiff’s work product was inadequate, regardless of the cause.
34
I have been trying to file an EEO Complaint since November 2006. I initially
informally informed Anita Carey [sic] EEO Representative of my harassment and
hostile working conditions. I then tried to set up an appointment to file an official
complaint in December 2006. She informed me that she had to take her daughter
to the airport and she would call me when she was available. I never received a
phone call back.
Pl.’s First Opp’n Ex. 44 at 15; EEO Counselor’s Report at 9. These EEO reports do not state that
a meeting with the EEO representative occurred in November 2006, but mainly refer to a
conversation with Anita Cary that could have occurred in December 2006, when Cary said it did.
The plaintiff’s deposition simply reiterates what the plaintiff asserted in the first round of
briefing, namely, that the plaintiff had a “face to face” meeting with Cary on November 16,
2006, Brooks Dep. at 17:2, 21:8–10, and that Coquis was aware of this meeting because the
plaintiff had observed him watching the meeting in the plaintiff’s office. Id. at 30:21–23.12
The deposition testimony of Cary and Coquis contradicts the plaintiff’s deposition
testimony that Cary met with the plaintiff in mid-November. Cary testified that she has no
recollection and no notes of a meeting with the plaintiff occurring in November 2006. Cary Dep.
at 58:4, 60:6–61:20 (recalling a “brief encounter” with the plaintiff in December 2006, not
12
The plaintiff cannot defeat a summary judgment motion on the basis of such self-serving testimony alone. See
Arrington v. United States, 473 F.3d 329, 343 (D.C. Cir. 2006) (recognizing that “summary judgment ‘is most likely
when a plaintiff’s claim is supported solely by the plaintiff’s own self-serving testimony, unsupported by
corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive
evidence that the plaintiff has deliberately committed perjury” (quoting Johnson v. Wash. Metro. Area Transit Auth.,
883 F.2d 125, 128 (D.C. Cir. 1989)) (emphasis added)); Johnson v. D.C., 947 F. Supp. 2d 123, 132–33 (D.D.C.
2013) (finding that “self-serving testimony . . . alone is insufficient to survive a motion for summary judgment”);
Booth v. D.C., No. 04-1909, 2010 WL 1375309, at *6 (D.D.C. Apr. 5, 2010) (granting summary judgment on
retaliation claim because “aside from [plaintiff’s] own self-serving affidavit, there [was] simply no evidence on the
record to suggest these events even occurred” thus “there is not enough evidence for a jury to conclude . . . that any
such action was motivated, even in part, by [plaintiff’s] protected activity”); Holmes-Martin v. Leavitt, 569 F. Supp.
2d 184, 208 (D.D.C. 2008) (concluding that “summary judgment would normally be appropriate,” “[b]ecause the
plaintiff offers no corroboration for her affidavit”); Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 90
(D.D.C. 2006) (finding that “self-serving affidavits alone will not protect the non-moving party from summary
judgment” (quoting Carter v. George Wash. Univ., 180 F. Supp. 2d 97, 111 (D.D.C. 2001), aff’d, 387 F.3d 872
(D.C. Cir. 2004))).
35
November); id. at 99:1–15 (Cary would normally record such conversations and report them to
the Office of Civil Rights but did not do so); id. at 109:3–16 (ordinarily notes such meetings and
did not record it in her calendar). The plaintiff disputes this, stating that Cary did not recall the
date of the meeting, but admitted that November 15, 2006, could have been the counseling date.
Pl.’s SMF ¶ 14. This misrepresents the record. Cary states that that such a meeting would not
have occurred in November, 2006, but during the first week of December, 2006, which is the
only time she recalls speaking with the plaintiff and the only time she would have been in the
OBO South building where the plaintiff worked. Cary Dep. at 54:16–55:14, 60:6–61:20 (recalls
a “brief encounter” with the plaintiff during an annual training held from December 4th–8th); id.
at 62:9–13 (stating that this training would be the only time she would have been in the
plaintiff’s building because she “had no other reason to be down there for anything”).
Coquis has unequivocally testified that he did not see the plaintiff meet with Cary.
Coquis Dep. at 77:12–17. It additionally appears that until the date of Coquis’ deposition on
September 12, 2012, he was not aware that Cary was an EEO representative until informed of the
fact during his deposition. Id. at 75:4–76:3 (“Q: Do you know that [Cary’s] an EEO
representative? A: No”; “Q: You have no knowledge of that? A: No.”). Consequently, even
considering the evidence in the light most favorable to the plaintiff and crediting her statement
that the plaintiff’s meeting with Cary occurred on November 16, 2006, and that Coquis observed
it, Coquis has testified that, although he knew Cary was “a staff member of OBO,” he had “no
knowledge” that she was an EEO representative when the alleged meeting took place. Id. at
75:1, 76:2. Considering these facts and the entirety of the record, no reasonable jury would
believe that there was a “causal link” between any informal EEO complaint by the plaintiff on
November 16, 2006, and Coquis’ non-renewal decision, because Coquis did not know that Cary
36
was engaging in protected activity when he made his decision. See Rochon, 438 F.3d at 1220
(“The causal connection [in retaliation claims] . . . may be established that the employer had
knowledge of the employee’s protected activity, and that the adverse action took place shortly
after that activity.”) (emphasis added).
The plaintiff disputes Coquis’ claim that he did not realize that Cary was an EEO officer
on the basis that Cary “admitted that she met with Coquis on several occasions to discuss other
employee EEO complaints against him.” Pl.’s SMF ¶ 29 (citing generally Coquis Dep; and Cary
Dep.). This is not the case. The plaintiff appears to predicate this statement on Cary’s testimony
that she would speak with someone in the OBO “if he’s named in a complaint,” Cary Dep.
52:15–17, and that she had counseled three individuals who believed Coquis “wasn’t fair” to
them or “that they received disparate treatment,” id. at 51:7–16. Contrary to the plaintiff’s
assertion, this testimony does not establish that Cary ever met with Coquis concerning these
complaints as she never states that such meeting took place, and does not even state that the
counseled individuals filed EEO complaints, thus triggering the need for a meeting. In short, the
plaintiff has not provided evidence to contradict Coquis statement that he did not know that Cary
was an EEO representative and thus could have not known the plaintiff was engaged in EEO-
protected activity before he made his non-renewal decision.
Moreover, under the McDonnell Douglas framework, the defendant has proffered several
legitimate, non-retaliatory reasons for not renewing the plaintiff’s employment contract,
including the declining quality of the plaintiff’s work, the downsizing of the department in which
she was employed, and her distribution of the “10 Truths” email and finding other inappropriate
files on her computer system. The plaintiff disputes all three of the proffered reasons for the
37
non-renewal of her contract. Her arguments, however, fail to rebut the defendant’s legitimate,
nondiscriminatory justifications.
First, the plaintiff states that she performed her job “exceedingly well and in an
outstanding manner” based on several awards and ratings of “Excellent” and “Outstanding” that
she received in her performance appraisals. See Pl.’s SMF ¶¶ 1–3, 26, 30; Pl.’s Resp. Def.’s
SMF ¶ 6. The plaintiff’s argument is unavailing. The recognition the plaintiff received for her
work was based on the time period before Coquis began to consider non-renewal of her contract.
See, e.g., Pl.’s Mot. Ex. 1, ECF No. 70-2 (2004-05 performance appraisal); id. Ex. 2, ECF No.
70-3 (Nov. 2004 Superb Performance Award); id. Ex. 3, ECF No. 70-4 (Sept. 2005 Exemplary
Performance Award); Ex. 4, ECF No. 70-5 (Feb. 2006 Exemplary Performance Award); id. Ex.
5, ECF No. 70-6 (Sept. 2006 Exemplary Performance Award); id. Ex. 6, ECF No. 70-7 (undated
Certificate of Appreciation); id. Ex. 7, ECF No. 70-8 (letters of congratulation from Coquis to
the plaintiff dated Sept. 28, 2005, and February 1, 2006; email from Coquis, dated Sept. 2006,
congratulating group of OBO employees, including the plaintiff, on a “great job”); id. Ex. 16,
ECF No. 70-15 (email, dated May 23, 2006, from Coquis to the plaintiff telling plaintiff “good
catch”). The latest date the plaintiff received recognition for her work was her exemplary
performance award in September 2006, which precedes the first date Coquis considered non-
renewal, in October 24, 2006. Coquis Dep. at 170:8–21, 139:1–5.
Second, the plaintiff disputes that OBO was downsizing, relying on the stricken Butler
declaration for support that additional people were hired. Pl.’s Resp. Def.’s SMF ¶ 9. Other than
this declaration, the plaintiff provides no evidence to refute the defendant’s claim that the
plaintiff’s contract was not renewed because OBO was restructuring and SA-18 was downsizing
through attrition. Mitchell Suppl. Decl. ¶¶ 5, 6.
38
Finally, regarding the inappropriate emails, the plaintiff argues that these “cannot serve as
the basis for Ms. Brooks’ termination,” because the emails only merited “oral counseling,” Pl.’s
Resp. Def.’s SMF ¶¶ 8; see also Pl.’s Mot. Ex. 26, and that due to a cyber-security grace period,
employees were not supposed to be given letters of warning for violations, Pl.’s Resp. Def.’s
SMF ¶¶ 12, 15; see also Pl.’s Mot. Ex. 28, ECF No. 70-27 (copy of Cyber Security Incident
Program regulations). As noted, the so-called grace period only meant that the incidents would
not be “entered into [the plaintiff’s] permanent incident history record.” See Pl.’s Mot. Ex. 26.
There is no indication that employees would not or could not receive letters of warning, nor does
this grace period suggest that personnel decisions could not be made on the basis of
inappropriate images found in the computer sweep. Indeed, IT Director Keller and HR Director
Mitchell believed Coquis had the authority to issue letters of warning based on inappropriate
cyber incidents, as Keller presented the image to Coquis, and Mitchell recommended he issue a
letter of warning. Coquis Dep. at 57:9–12. Thus, even had the plaintiff plead a prima facie case
of retaliation, under the McDonnell Douglas framework, the plaintiff’s claims would still fail as
she has failed to rebut the defendant’s legitimate, nondiscriminatory reasons for not renewing the
plaintiff’s contract.
Accordingly, the defendant is entitled to summary judgment as to the plaintiff’s
retaliation claim under both Title VII and 42 U.S.C. § 1981.
IV. CONCLUSION
For the reasons explained above, the defendant’s motion to strike is granted with respect
to the one-page document titled “HARASSMENT”, and the Butler Declaration, and the
defendant’s motion for summary judgment is granted. An appropriate Order accompanies this
Memorandum Opinion.
39
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell,
o=District of Columbia, ou=U.S.
District Court for the,
email=Howell_Chambers@dcd.usco
urts.gov, c=US
Date: 2014.03.31 21:51:06 -04'00'
DATED: March 31, 2014 _______________________
BERYL A. HOWELL
United States District Judge
40