Congress v. District of Columbia ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TRINA CONGRESS,
Plaintiff,
v. Case No. 17-cv-907 (CRC)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
This employment discrimination case rests on an unusual set of facts. A 2013 District of
Columbia Public Schools (“DCPS”) investigation found that a school employee, Trina Congress,
improperly claimed D.C. residency when registering her daughter at a D.C. public high school.
Congress was charged non-resident tuition for the relevant enrollment period as a result of the
transgression but continued in her job as a teacher’s aide at a local middle school. Some
nineteen months later, soon after Congress complained to school system officials that her
principal had unfairly denied her requests for leave stemming from a purported disability, the
residency fraud investigation was picked back up by a different office within DCPS. This
second inquiry, which found a longer period of fraud, culminated in Congress’s termination. She
sued. Following responsive motions practice and discovery, the District has moved for summary
judgment on the two remaining claims in the case: discrimination and retaliation under the
federal Rehabilitation Act.
The Court will grant summary judgment for the District on Congress’s discrimination
claim but not on her retaliation claim. As to the former, the record shows that DCPS based its
decision to terminate Congress on its well-founded belief that she engaged in multiple instances
of residency fraud and there is insufficient record evidence to suggest that the District’s
explanation for the termination was a pretext for disability discrimination. As to Congress’s
retaliation claim, DCPS’s decision to re-investigate the residency fraud allegations against
Congress after a nineteen-month period of inactivity was an adverse employment action because
it threatened serious consequences and led to Congress’s termination. While the District
maintains that the extended lapse between the two investigations resulted from turnover of
personnel within DCPS, evidence in the record permits an inference that later investigation was
put into motion in retaliation for Congress’s recent complaints about her principal’s hostility
towards her requests for disability-related accommodations. Congress may therefore present her
retaliation claim to a jury.
I. Background
A. Factual Background
1. Congress’s hiring, transfer, and reported interactions with Principal Zaki
regarding her disability
DCPS hired Ms. Congress as special education teacher’s aide at Kramer Middle School
(“Kramer”) in December 2011. Def.’s Statement of Material Facts ¶1; Congress Dep. at 13. As
part of the hiring process, Congress submitted an I-9 employment eligibility form and a copy of
her driver’s license which both listed a Maryland home address. Def.’s Mem. Supp. Summ. J.
(“MSJ”) Ex. 4, 5.
In 2012, Congress was transferred to Kelly Miller Middle School (“Kelly Miller”), where
Abdullah Zaki served as Principal. Def.’s Statement of Material Facts ¶7; see Pl.’s Statement of
Material Facts ¶22. Congress testified in her deposition that she met with Zaki shortly after
starting. Congress Dep. at 26:19–30:9. In that meeting, Congress, who suffers from nerve
damage stemming from a car accident, claims to have informed Zaki of various impairments
arising from her condition, including difficulty climbing stairs and limited mobility. Id. at 26:2–
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27:22, 28:18–29:4. She also reportedly expressed concerns to Zaki about her capacity to
physically intervene while working with emotionally disturbed students and about the improper
use of the handicap parking space at Kelly Miller by non-disabled employees. Id. at 36:3–22.
Congress recounted several additional meetings with Zaki during her tenure at Kelly Miller
concerning her disabilities and need for accommodations. Id. at 34:20–35:15. She also recalled
that Zaki denied numerous written leave requests that she submitted to attend doctor’s
appointments, although the requests themselves are not in the present summary judgment record.
See id. at 102:14–104:22. Congress further testified that Zaki frequently disparaged her leave
requests, noting once, for example, that he “did [not] have room for people like [Congress].” Id.
at 139:19–140:10. Congress understood these statements to be references to her medical
conditions. Id. at 140:7–10.
2. Congress’s enrollment of her daughter in a District public school
In early 2012, Congress and her family found themselves in a dispute with a woman
named Rita Whatley. While the precise nature of the dust-up is not clear to the Court, it was
serious enough that Congress’s daughter, W.S., was attacked and required hospitalization. Id. at
62:1–6. On February 23, 2012, Congress enrolled W.S. as a student at Anacostia Senior High
School (“Anacostia” or “Anacostia High”), a District public school. See Def.’s MSJ Ex. 7 at 1.
Congress explains that she did so in order to protect her daughter from Whatley. See, e.g., Def.’s
MSJ Ex. 22 at 6. Congress re-enrolled W.S. at Anacostia in September 2012 for the following
schoolyear. Def.’s MSJ Ex. 9 at 1. During the September enrollment process, Congress
submitted several pieces of documentation, including a signed “Annual Student Enrollment
Profile,” which listed Congress’s sister’s D.C. address as her own. Id. At another point during
the September enrollment, an Anacostia official completed a “DC Residency Verification Form”
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which also bore Congress’s sister’s D.C. address and indicated that Congress had submitted a
pay stub reflecting that address. Def.’s MSJ. Ex. 11 at 1. The pay stub in fact belonged to
Congress’s sister. See Pl.’s Opp. at 14. Later that month, Congress filed for a temporary
restraining order against Whatley, which listed Congress’s home address as Oxon Hill,
Maryland. Def.’s MSJ Ex. 10 at 1.
3. The initial residency fraud investigation
In December 2012, Whatley lodged a complaint with DCPS’s Student Residency
Office—which investigates residency fraud by parents of children enrolled in District public
schools, Wynn Dep. at 10:6–12:7, 13:20–14:14—claiming that Congress was not a D.C. resident.
Def.’s MSJ Ex. 12 at 1–2. Investigator Resa Wynn received the complaint in early January 2013
and informed both Congress and Zaki of the investigation. See Def.’s MSJ Ex. 17 at 1–2; Pl.’s
Opp. Ex. G. at 1; Congress Dep. at 57:18–21. During an ensuing interview with Wynn,
Congress admitted that she received a housing subsidy from Prince George’s County in
Maryland which required residency in that county. Def.’s MSJ Ex. 8 at 18:30–19:29; Def.’s
Statement of Material Facts ¶24; cf. Pl.’s Statement of Material Facts ¶24. As a result of her
investigation, Wynn concluded that Congress and her daughter were not District residents
between August 2012 and February 2013. Def.’s MSJ Ex. 19 at 1. Upon receiving the
investigation findings, Congress promptly removed her daughter from Anacostia. Id.; Def.’s
MSJ Ex. 7 at 1. DCPS subsequently issued Congress a letter assessing the amount of
nonresident tuition owed to the District at $6,077.00. Def.’s MSJ Ex. 19 at 1.
Soon after receiving Whatley’s complaint against Congress in January 2013, Wynn
brought the complaint to the attention of officials in DCPS’s Labor Management and Employee
Relations (“LMER”) office, which handles misconduct complaints against teachers and certain
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other categories of DCPS employees. Def.’s MSJ Ex. 15 at 1; Wynn Dep. at 14:20–15:4, 29:3–
17. Anthony Hinnant, the LMER official who assigned investigations at that time, instructed
lead investigator Wanda Malloy to “get with [Wynn]” because LMER “may want to open an
investigation on [Congress].” Def.’s MSJ Ex. 16 at 1. According to Wynn, however, Malloy
never followed up with her about the matter and no further action was taken at that time. Wynn
Dep. at 30:20–31:9, 49:7–12. Malloy subsequently left the office and DCPS. Id. at 28:18–22,
31:10–32:7. Her position was filled by Daniel Ellis until July 2014, at which point Robert
Thomas took over. Thomas Dep. at 11:2–13:2.
4. The LMER investigation
Meanwhile, Congress continued working as a special education teacher’s aide at Kelly
Miller. In early September 2014, Congress submitted a written complaint to LMER alleging that
Principal Zaki was retaliating against her, although the version of the complaint that Congress
included as an exhibit to her summary judgment motion does not provide details as to the nature
of the alleged retaliation. Pl.’s Opp. Ex. L at 1. LMER representative Erica Smith emailed with
Congress regarding her complaints, asking whether Congress had received any more
“information from [Zaki] about why he was not approving” one of her leave requests. Pl.’s’
Opp. Ex. M at 1. On the afternoon of September 17, 2014, Congress replied that she was having
“personal problem[s]” with Zaki. Id. The reply raised concerns that Congress was being asked
to cover other teachers’ classes, apparently in violation of instructions Congress had received
from LMER. Id. Approximately two hours later, Wynn, the DCPS investigator who conducted
the 2013 residency fraud investigation, sent an email to Thomas forwarding her original January
2013 correspondence to LMER regarding Whatley’s complaint against Congress, noting “[h]ere
is the case I was referring to.” Def.’s MSJ Ex. 21 at 1. Wynn added that she did not “think it
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was ever investigated” and that she had “whatever additional information is needed in the file.”
Id. LMER eventually assigned Steven Lee to conduct an investigation. See Def.’s MSJ Ex. 23.
On October 9, 2014 Congress participated in a mediation session with Smith and Zaki
regarding her complaints about Zaki, including his alleged disregard for her disabilities. See
Congress Dep. at 127:1–128:14, 131:18–132:10. Congress testified in her deposition that Zaki
responded to her concerns by announcing in the mediation that she should be investigated for
residency fraud. Id. at 128:14–128:18. In an email memorializing the mediation session, Smith
noted that Congress complained of a “reprimand that she received for leaving early” and that
Zaki indicated that Congress “request[s] time off a lot.” Def.’s Reply Ex. 2 at 2.
On November 10, 2014, LMER investigator Lee interviewed Congress regarding the
residency fraud matter in the presence of Thomas and a union representative. See Def.’s MSJ
Ex. 22 at 3. Lee’s summary of the interview, prepared as part of his investigation, recounts
statements by Congress that “she used her sister’s address . . . to enroll her daughter [at
Anacostia] on February 23, 2012;” that she had “signed . . . [an] Annual Student Enrollment
document stating that she and her daughter were bonafide District of Columbia residents;” that
she “admitted that she and her daughter did not actually reside in the District at any time;” and
that she was “not aware of the fact that she was in violation of any D.C. Regulation since her
daughter lived with her at their actual address [in Maryland] on the weekends and stayed with
[Congress’s] sister during the week.” Id. Congress also provided Lee a signed statement
claiming that she enrolled her daughter at Anacostia because of “stalking” and “threats made on
[Congress and her daughter’s lives]” by Whatley. Id. at 5–6. Congress’s written statement also
noted that “Zaki threatened [her] with [the residency fraud] claim in a meeting with LMER
[representative] Smith” and that Congress “had no idea [she] was doing anything wrong” by
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enrolling her daughter at Anacostia. Id. at 5. Congress further indicated in the statement that she
withdrew her daughter as soon as she was told by Wynn that she was violating the residency
rule. Id. at 6. In his November 2014 Investigative Report, Lee summarized the above evidence
before concluding that Congress had not been a resident of the District from February 2012 to
February 2013, the entire period Congress’s daughter was enrolled at Anacostia. Id. at 4.
5. The termination decision
In mid-April 2015, DCPS completed a Disciplinary Action Recommendation Memo
which analyzed both LMER’s investigation findings and Congress’s past work performance.1
The memo determined, pursuant to a 12-factor analysis derived from Douglas v. Veterans
Admin., 5 M.S.P.B. 313, 332–33 (1981),2 that termination was the appropriate sanction. See
Def.’s MSJ Ex. 25 at 1–3. The memo found that Congress engaged in two separate violations of
DCPS’s residency policy by enrolling her daughter at Anacostia in February 2012 and again in
September 2012. See id. at 1. It further determined that Congress “manipulated” the residency
verification process to enroll her daughter. Id. And it noted that while DCPS historically
terminates employees who engage in residency fraud, it “considered diverting from past practice
and issuing a lesser sanction” in light of Congress’s explanation that she enrolled her daughter at
In addition to the Director of LMER, the memo was signed by the Chief of Staff in DCPS’s Office of
1
Human Capital (OHC), and a Central Office Effectiveness (COE) Specialist. Def.’s MSJ. Ex. 25 at 3.
2
In Douglas the Merit Systems Protection Board identified twelve factors that are “generally recognized as
relevant” in determining the sufficiency of an employment penalty. 5 M.S.P.B. at 331–32. Those factors are: (1)
the seriousness of the offense, (2) the employee’s job level and type of employment (including any special duties
derived from the employee’s supervisory or fiduciary status), (3) the employee’s past disciplinary record, (4) the
employee’s past work record, (5) the effect of the offense on the employee’s ability to perform their work (and their
supervisor’s confidence in the same), (6) the consistency of the penalty with those imposed in similar situations, (7)
the consistency of the penalty with any internal schedule of penalties, (8) the public notoriety of the offense, (9) the
extent to which the employee was on notice regarding the rule violation, (10) the potential for the employee’s
rehabilitation, (11) mitigating circumstances, and (12) the adequacy and effectiveness of alternative sanctions to
deter similar conduct. Id. at 332. The District analyzed Congress’s conduct under each factor. Def.’s MSJ Ex. 25 at
1–3.
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Anacostia out of concerns for her safety. Id. at 2–3. Nonetheless, because Congress had falsely
certified the information on the Annual Student Enrollment Profile, because the safety concerns
did “not explain [Congress’s] enrolling her daughter at Anacostia the second time, in September
2012, over six months after the first time,” and because Congress had “ample time to seek out
alternative options, such as other schools in her city of residence,” the memo concluded that
“DCPS cannot justify [Congress] intentionally circumventing the rules” and thus considered
“this case akin to other cases of residency fraud.” Id. at 3. Explaining that DCPS must be
“consistent in its discipline,” the memo recommended termination. Id. Consistent with that
recommendation, on April 21, 2015, the Director of LMER sent Congress a Notice of
Termination informing her that she would be fired on the grounds that she had violated DCPS’s
residency requirement by enrolling her daughter at Anacostia and falsely listing a D.C. residence
on the Annual Student Enrollment Profile. Def.’s MSJ Ex. 26 at 1. Congress’s termination
became effective May 7, 2015. Id.
B. Procedural History
In July 2015, Congress filed a charge of discrimination against the District of Columbia
with the Equal Employment Opportunity Commission (“EEOC”) and the D.C. Office of Human
Rights. After receiving a right to sue letter from the EEOC, Congress brought this action under
the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and the D.C. Human
Rights Act. Her original complaint raised claims of discrimination, retaliation, and hostile work
environment. The District filed a motion to dismiss, which the Court granted as to all claims
save the hostile work environment claim under the Rehabilitation Act. Congress v. District of
Columbia, 277 F. Supp. 3d 82, 86, 90 (D.D.C. 2017) (Cooper, J.) (“Congress I”). After securing
new counsel, Congress amended her complaint, again raising claims of discrimination,
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retaliation, and hostile work environment, and the District again moved to dismiss. The Court
granted the motion in part but permitted Congress’s claims of discrimination and retaliation
under the Rehabilitation Act to go forward. Congress v. District of Columbia, 324 F. Supp. 3d
164, 175 (D.D.C. 2018) (Cooper, J.) (“Congress II”). The parties proceeded to discovery.
Discovery now complete, the District moves for summary judgment.
II. Legal Standards
The Court must grant summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The District, as the movant, bears the burden of demonstrating the
“absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Fed. R. Civ. P. 56(c)(1). In making that determination, the Court must “view the facts
and draw reasonable inferences ‘in the light most favorable to the [non-moving] party . . . .’”
Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) (per curiam)). The non-movant may not, however, rely on “mere allegations” or
conclusory statements to defeat a motion for summary judgment. Veitch v. England, 471 F.3d
124, 134 (D.C. Cir. 2006).
Rehabilitation Act claims follow the familiar three-step framework established in
McDonnell Douglas v. Green, 411 U.S. 792 (1973) in which plaintiffs bear the initial burden of
making out a prima facie case of retaliation or discrimination. See, e.g., Kersey v. Washington
Metro. Area Transit Auth., 586 F.3d 13, 16–17 (D.C. Cir. 2009). However, at summary
judgment, once the employer offers a “legitimate, non-discriminatory [or non-retaliatory] reason
for the challenged decision, . . . the question whether the employee actually made out a prima
facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the picture.’” Brady
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v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (quoting St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 510–511 (1993) and Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000)). At that point, the prima facie case is “a largely unnecessary sideshow”
and district courts “should not [] decide whether the plaintiff actually made out a prima facie
case.” Id. (internal quotation marks and citation omitted). Instead, “in considering an
employer’s motion for summary judgment . . . the district court must resolve one central
question: Has the employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the actual reason and the employer
intentionally discriminated [or retaliated] against the employee . . . ?” Id.; see also, e.g., Kersey,
586 F.3d at 16–17 (explaining that, in the context of a motion for summary judgment under the
Rehabilitation Act, after the defendant provides a legitimate, non-discriminatory reason for the
challenged action, “the sole remaining issue is discrimination or retaliation vel non” and that “to
survive summary judgment the plaintiff must show that a reasonable jury could conclude from
all of the evidence that the adverse employment decision was made for a discriminatory or
retaliatory reason” (cleaned up)). This focus, however, does not mean that evidence bearing on
the prima facie case is irrelevant to the ultimate question of discrimination. After all, plaintiffs
will be hard pressed to show that discrimination lay behind an adverse action where, e.g., the
plaintiff never suffered a legally cognizable adverse action, or the employer was truly unaware of
the characteristic that was the supposed source of discriminatory animus. Instead, upon an
employer’s motion for summary judgment, the court is to consider the question of discrimination
or retaliation as a whole; that is, did the plaintiff raise a genuine issue of material fact that the
employer took an adverse action against them on the basis of some protected characteristic or
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activity rather than for the employer’s proffered legitimate reason. See Kersey, 586 F.3d at 16–
17.
III. Analysis
The District contends that Congress has not made out a prima facie case for either her
discrimination or retaliation claim. It also offers legitimate, non-discriminatory reasons for the
adverse actions it took against her. As to its decision to terminate Congress, the District cites its
investigative findings regarding her daughter’s enrollment at Anacostia High. As for LMER’s
decision to commence investigating the residency fraud claims in 2014, some nineteen months
after they were brought to that office’s attention, the District contends that the delay resulted
from employee turnover in LMER that caused the matter simply to fall through the cracks.
Following the approach outlined above, because the District has offered legitimate, non-
discriminatory reasons for its actions, the Court will primarily focus on whether the District’s
explanations could be construed as pretextual and will only address the District’s arguments on
the prima facie case as they bear on the ultimate question of discrimination. The Court finds that
Congress failed to raise a genuine issue of material fact as to the DCPS’s honest and reasonable
belief that Congress’s residency fraud justified her termination and will thus grant summary
judgment to the District on Congress’s discrimination claim. However, the Court finds that
Congress has presented sufficient evidence to raise a genuine question of fact as to whether
LMER’s decision to commence investigating the residence fraud allegations in 2014, following a
nineteen-month period of inactivity, resulted from her complaints about Principal Zaki’s
handling of issues related to her disability. A jury could thus find that the District’s alternative
explanation—employee turnover and lack of communication within LMER—is pretextual. The
Court will, accordingly, deny summary judgment on Congress’s retaliation claim.
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A. Count III: Termination Because of Disability
Count III of the amended complaint alleges that the District terminated Congress because
of her disability. The Rehabilitation Act makes it unlawful for government employers to
“discriminate against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a)
(ADA discrimination provision); see 29 U.S.C. § 791(f) (incorporating ADA standards in 42
U.S.C. § 12111 et seq.); Savage v. Azar, 301 F. Supp. 3d 114, 123 (D.D.C. 2018) (Cooper, J.),
aff’d, No. 18-5287, 2020 WL 1919639 (D.C. Cir. Apr. 8, 2020) (recognizing the same).
As described above, Congress’s discriminatory discharge claim is governed by
McDonnell Douglas’s familiar three-step framework. See Savage, 301 F. Supp. 3d at 123
(applying McDonnell Douglas to analyze a Rehabilitation Act discrimination claim). But, where
the employer has offered a legitimate nondiscriminatory reason for the challenged action, the
court “should not [] decide whether the plaintiff actually made out a prima facie case” and should
instead focus attention on the question of whether a reasonable jury could infer pretext from the
record at summary judgment. Figueroa v. Pompeo, 923 F.3d 1078, 1087 (D.C. Cir. 2019)
(quoting Brady, 520 F.3d at 494) (emphasis original); see also id. at 1086–88 (describing the
showing required of employers at summary judgment to demonstrate the existence of a
legitimate nondiscriminatory reason).
The District nonetheless challenges Congress’s prima facie case by arguing both that
DCPS lacked knowledge of Congress’s disability and that Congress has failed to show that the
DCPS was motivated solely by discriminatory animus in firing her. The District also provides a
legitimate, non-discriminatory reason for Congress’s termination: DCPS’s findings that Congress
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committed residency fraud. As such, to survive the District’s motion for summary judgment,
Congress must show that a reasonable jury could conclude that the District’s residency fraud
justification for her termination was pretextual and that the District actually terminated her
because of her disability. See Morris, 825 F.3d at 668. Although the Court thus need not
expressly address the prima facie case, because the issues raised by the District’s arguments on
that topic bear on the ultimate issue of whether the District engaged in discrimination, the Court
addresses them below.
1. Notification
The Rehabilitation Act protects individuals who have “a physical or mental impairment
that substantially limits one or more major life activities” as well as those “regarded as having
such impairment.” 42 U.S.C. § 12102(1)(A), (C) (ADA definition of disability); 29 U.S.C. §
791(f) (incorporating ADA standards). The District maintains that DCPS was not aware of
Congress’s disability and therefore it could not have fired her “because” of it. Cf. Mitchell v.
Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (“[t]he causal connection component of the prima
facie case may be established by showing that the employer had knowledge of the employee’s
protected activity, and that the adverse personnel action took place shortly after that activity.”).
DCPS was in the dark, the District argues, because Congress failed to submit written notification
to DCPS of any physical disability. Def.’s Statement of Material Facts ¶¶36, 37. But, the
District cites no authority for the proposition, and the Court has found none, that an employee
must provide written notice of a disability to her employer. Cf. Floyd v. Lee, 85 F. Supp. 3d
482, 506 (D.D.C. 2015) (noting that, under the Rehabilitation Act, “requests for reasonable
accommodations do not need to be in writing” to trigger an employer’s duty to respond (quoting
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)). Here, Congress testified
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that she met with Principal Zaki shortly after starting at Kelly Miller to “discuss[] her health
conditions” and informed him that “because of the limitations with [her] body,” there were
certain “things that [she] was not capable of doing,” including working in a classroom with
“emotionally disturbed” students. Congress Dep. at 26:2–27:15. If this testimony is credited, it
is sufficient to have put Zaki (and DCPS) on notice that Congress had a physical disability.
In any case, there is also at least some written evidence in the record permitting a
reasonable jury to find that the DCPS was aware of Congress’s impairments. For instance,
Congress’s email exchange with LMER representative Smith references Congress’s difficulty
obtaining leave from Zaki. See Pl.’s Opp. Ex. M at 1 (email to Smith); Congress Dep. at
102:14–104:22 (describing issues receiving leave necessitated by her disability). And Smith’s
email to Congress and Zaki following their October 2014 mediation notes that Zaki’s denial of
leave requests was a central topic of discussion. Def.’s Reply Ex. 2 at 1–2.
The record thus reflects a genuine dispute as to whether DCPS knew of Congress’s
impairments before it fired her. See Steele v. Mattis, 899 F.3d 943, 950 (D.C. Cir. 2018) (“[A]t
the summary judgment stage, [a] ‘he said, she said’ credibility determination must be resolved in
favor of [the non-movant].”).
2. Pretext and causation
To successfully mount a Rehabilitation Act discrimination claim, a plaintiff must show,
among other things, that “[s]he has suffered an adverse employment action solely because of the
disability.” Butler v. Washington Metro. Area Transit Auth., 275 F. Supp. 3d 70, 81 (D.D.C.
2017) (citing Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993)) (Cooper, J.); accord 29 U.S.C.
§ 794(a). Courts in this Circuit have rejected “a motivating factor test” for Rehabilitation Act
intentional discrimination or retaliation claims, instead interpreting the statutory phrase “solely
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by reason” to require that plaintiffs show “but for” causation. Williams v. Donovan, 219 F.
Supp. 3d 167, 173 (D.D.C. 2016); see also, e.g., Gard v. U.S. Dep't of Educ., 752 F. Supp. 2d 30,
35–36 (D.D.C. 2010), aff'd, No. 11-5020, 2011 WL 2148585 (D.C. Cir. May 25, 2011) (per
curiam)); Brett v. Brennan, 299 F. Supp. 3d 63, 72 (D.D.C. 2018); Hall v. Washington
Metropolitan Area Transit Authority, No. CV 19-1800 (BAH), 2020 WL 5878032, at *9 (D.D.C.
Oct. 2, 2020). Under that “but for” standard, the employee’s disability must be “the ‘reason’ that
the employer decided to act.” Hall, 2020 WL 5878032, at *9 (quoting Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009)); see also Bostock v. Clayton County, 140 S. Ct. 1731, 1739
(2020) (noting that the word “solely” in antidiscrimination statutes typically “indicate[s] that
actions taken ‘because of’ the confluence of multiple factors do not violate the law”).
The District contends that it could not have fired Congress “solely by reason” of her
disability because its legitimate and non-discriminatory reason for her firing—the 2014
residency fraud findings—provided an independent and sufficient reason to terminate her.
Congress retorts that the residency fraud findings were merely a pretext for her firing because
DCPS did not initially terminate her after the first iteration of the investigation in 2013, and that
the renewed 2014 investigation itself was so lacking in support as to raise an inference of pretext.
The District has the better of the argument.
When a plaintiff challenges an employer’s assertion that facts found during an internal
investigation justified an adverse action, the central inquiry is whether the defendant “honestly
and reasonably believed” the purported grounds for the adverse action. Brady, 520 F.3d at 496.
A plaintiff may show that an employer did not “honestly and reasonably” believe a cited reason
by casting doubt on the objective validity the employer’s explanation. See George v. Leavitt,
407 F.3d 405, 415 (D.C. Cir. 2005) (noting that “the fact that a proffered reason is objectively
15
false may undermine an employer's professed honest belief in that reason, but this is not always
so”). An employee may also undermine the employer’s stated reason through a variety of
evidentiary sources, including “the employer's better treatment of similarly situated employees
outside [her] protected group, its inconsistent or dishonest explanations, its deviation from
established procedures or criteria, or the employer's pattern of poor treatment of other employees
in the same protected group as the plaintiff, or other relevant evidence that a jury could
reasonably conclude evinces an illicit motive.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C.
Cir. 2015) (citing Brady, 520 F.3d at 495 & n.3).
a. Initial failure to terminate
Congress first argues that the District acted inconsistently in not taking any employment
action against her after the 2013 residency fraud investigation while subsequently citing
residency fraud as grounds meriting her termination in 2015. Congress insists that the 2013
investigation concluded with a finding that, apart from requiring her to withdraw her daughter
from Anacostia and pay non-resident tuition for the relevant enrollment period, no further action
by DCPS was warranted. Transcript of Motion for Summary Judgment Hearing (“MSJ
Hearing”), 24:5–24:11. On this point, Congress testified in her deposition that she received
verbal assurances that no further actions would be taken against her. Congress Dep. at 58:10–16.
In Congress’s telling, DCPS concluded the residency fraud investigation without termination in
2013, then unjustifiably re-adjudicated the issue in 2014 and found that termination was the
appropriate sanction. The disparate treatment of these two similar findings, Congress asserts,
casts doubt on the honesty and reasonableness of DCPS’s belief in residency fraud as sufficient
grounds for termination.
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The District responds that the initial inquiry conducted by DCPS investigator Resa Wynn
and the subsequent investigation by DCPS’s LMER division were two different investigations
undertaken for different purposes. See Def.’s MSJ at 2–4; MSJ Hearing at 5:3–5:19. It explains
that the Wynn investigation sought to determine Congress’s residency status in her capacity as a
parent and was conducted under the auspices of DCPS’s Student Residency Office, while the
LMER investigation was initiated because of Congress’s status as a DCPS employee. See Def.’s
MSJ at 2–3; MSJ Hearing at 5:3–5:19. The District notes that while Wynn’s investigation
indeed concluded in 2013 with a finding that Congress had improperly enrolled her daughter in a
District public school, the LMER investigation had not even started, let alone reached a
conclusion, when Wynn made her findings. See Def.’s MSJ at 2–4; Def.’s Reply at 6–7; MSJ
Hearing at 5:3–5:19, 7:12–8:4. Instead, the District suggests that initiation of the LMER
investigation had been delayed due to administrative turnover within that office, and that it
properly commenced once the staffing issues were resolved. See Def.’s MSJ at 2–4; MSJ
Hearing at 5:3–5:19.
While the District’s contention that the delay in LMER’s investigation was the innocent
consequence of personnel turnover will be addressed below, see Section III.B.3, the present
record clearly supports the District’s position that LMER’s investigation was distinct from
Wynn’s and did not conclude in 2013. Wynn herself testified that the LMER investigator
originally assigned to the case never contacted her in 2013 to discuss the case or take further
investigative steps, despite being asked to do so by an LMER supervisor. Wynn Dep. at 30:20–
31:9; Def.’s MSJ Ex. 16 at 1. Further supporting the District’s view that the two investigations
were distinct, Wynn’s letter to Congress informing her of the residency fraud investigation stated
that Congress was “currently under investigation by the DC Public Schools (DCPS) Student
17
Residency Office,” and made no mention of LMER or Congress’s status as a District employee.
Def.’s MSJ Ex. 17 at 1–2. And DCPS’s letter to Congress informing her of the findings of
Wynn’s investigation and requiring her to pay non-resident tuition, which is the only
documentary evidence in the record of the conclusion of either investigation in 2013, similarly
bears the heading of the Student Residency Office, has no reference to LMER, and makes no
mention of Congress’s status as a District employee. Def.’s MSJ. Ex. 19 at 1. Further, as Wynn
explained, her investigative ambit did not extend to misconduct by direct school employees like
Congress but was instead restricted to misconduct by non-union employees, such as principals or
central office employees, as well as residency fraud by parents (regardless of their status as
employees). See Wynn Dep. at 11:13–19, 12:3–7, 13:20–14:14.3 As such, the Student
Residency Office appears to have investigated Congress only because she was a parent of a child
enrolled in a District school. Cf. id. at 16:1–13 (noting that Wynn had notified the school at
which W.S. was enrolled of the outcome of the investigation but not, initially, Congress’s
supervisor). By contrast, LMER investigates instances of employee misconduct by school
employees like Congress. Id. at 28:6–29:17.
The Court therefore concludes that no reasonable jury could find that the LMER
investigation ended in 2013. The 2013 investigation was not conducted by LMER and thus did
not carry the possibility of termination because it inquired only into Congress’s conduct as a
3
Congress did testify that she received verbal assurances from Wynn that “no other penalty or reprimand
would be formed against [her]” as a result of the residency fraud investigation after withdrawing her daughter from
Anacostia. Congress Dep. at 58:10–16. But Congress did not say that she received such assurances from anyone in
LMER or anyone with authority to investigate misconduct by DCPS employees like Congress. See id. at 58:10–16.
Even if Wynn told Congress that no further action would be taken, and Congress took that to encompass employee
misconduct investigations for which Wynn was not responsible, there is no evidence that the District or, as relevant
here, LMER made any such determination. In fact, as explained above, there is significant evidence to the contrary.
Wynn Dep. at 30:20–31:9; Def.’s MSJ Ex. 16 at 1.
18
parent and not as an employee. Congress’s arguments regarding the District’s supposed about-
face from its 2013 “decision” not to terminate her for residency fraud are therefore misplaced.
b. The conduct of the 2014 investigation
Congress next identifies various purported deficiencies in the 2014 LMER investigation
that, in her view, demonstrate pretext in the termination decision. First, Congress argues that,
while the initial investigation determined that Congress had improperly enrolled her daughter at
Anacostia from August 2012 to February 2013, the LMER investigation found that the period
began earlier, in February 2012. Congress insists that these findings are inconsistent and
unexplained, and therefore suggest pretext. Second, Congress faults the termination decision for
erroneously accusing her of signing a false statement attesting to her District residency, insisting
instead that the form in question was signed by an Anacostia High official.
Beginning with the purportedly inconsistent results of the two investigations, Congress is
correct that the initial investigation found residency fraud only from August 2012 to February
2013 (when Congress pulled her daughter from Anacostia), see Def.’s MSJ Ex. 19 at 1, while the
subsequent one found that the fraud occurred from February 2012 to February 2013, see Def.’s
MSJ Ex. 25 at 1–3. Congress argues that the inconsistency cannot be explained based on the
materials underlying the second determination. She is mistaken. The investigative summary
prepared during the 2014 investigation memorializes Congress’s interview by LMER
investigator Lee, during which she “stated that she had used her sister’s address . . . to enroll her
daughter on February 23, 2012.” Def.’s MSJ Ex. 22 at 3. The summary goes on to state that
“Congress admitted that she and her daughter did not actually reside in the District at any time.”
19
Id. at 3.4 Congress argues that Lee was unable to recall the basis for the differing conclusions in
his deposition, but Lee was clear that Congress stated in the interview that she had lived in
Maryland from February 2012 to February 2013. Lee Dep at 38:18–38:22.5 That statement,
along with the others included in the investigative summary, support Lee’s conclusion that
Congress’s residency fraud spanned from February 2012 to February 2013.
Even if Congress’s characterization of Lee’s testimony were accurate, the question at this
stage is what the evidence discloses about the honesty and reasonableness of her employer’s
belief in the conclusions of the LMER investigation. See Brady, 520 F.3d at 496. And it is clear
from Lee’s investigation summary that he based his determination of residency fraud on his
interview with Congress. Def.’s MSJ Ex. 25 at 1–3. As such, Lee’s subsequent inability to
recall his justification for the differing result does not provide a reason to doubt the honesty and
reasonableness of DCPS’s belief that Lee’s investigation determined that Congress had
committed residency fraud at the time of her termination. Ultimately, then, Congress overlooks
the most obvious reason for the differing outcomes between the 2013 and 2014 investigations,
namely, her employer’s belief in Lee’s summary of her statements.
Congress also misses the mark in arguing that DCPS’s Disciplinary Action
Recommendation Memo improperly relied on a DC Residency Verification Form that was
completed by an Anacostia High official and does not bear her signature. See Pl.’s Opp. at 3.
4
While the document notes that “Congress explained that she was not aware of the fact that she was in
violation of any D.C. Regulation since her daughter lived with her at their [Maryland] residence . . . on the weekends
and stayed with her sister during the week while she attended Anacostia High School,” Congress signed a form
which listed her residence in the District in September 2012. See Def.’s MSJ. Ex. 22 at 3.
5
Nor was there any bright-line policy requiring further documentation of the statements. See Thomas Dep.
at 37:6–17 (noting that practices around memorializing statements during investigations “varie[d]” depending on the
case).
20
While she may not have signed or submitted the form in question, the Disciplinary Action
Recommendation Memo does not rely on her signature on that form, but rather a different form
that she signed and dated on September 5, 2012. See Def.’s MSJ Ex. 25 at 3. In that “Annual
Student Enrollment Profile,” Congress listed her residence as her sister’s address in the District.
Def.’s MSJ. Ex. 9. And, immediately above the line bearing her signature, the form states that
the signatory “certif[ies] that the information provided above is accurate” and “understand[s] that
providing false information for purposes of defrauding the government is punishable by law.”
Id. It was this statement that the Disciplinary Action Recommendation Memo and Termination
Notice both cited as grounds for Congress’s termination. See Def.’s MSJ Ex. 25 at 3; Def.’s
MSJ Ex. 26 at 1–2.
While Congress is correct that the Disciplinary Action Recommendation Memo refers to
the DC Residency Verification Form, see Def.’s MSJ Ex. 25 at 3, it does not do so in a manner
suggesting pretext. The DC Residency Verification Form contains a similar certification
paragraph as that in the Annual Student Enrollment Profile described above. Def.’s MSJ Ex. 22
at 10. That paragraph outlines the consequences to the signatory of falsifying any statement on
the form. And, as Congress correctly notes, the DC Residency Verification Form appears to bear
a signature only from a school official (and not Congress). See id. However, that form also
notes that “any person, including any District of Columbia public school . . . official, who
knowingly supplies false information to a public official in connection with student residency
verification shall be subject to charges of tuition retroactively . . .” Id. (emphasis added). The
Disciplinary Action Recommendation Memo concludes that Congress falsified the DC
Residency Verification Form by submitting her sister’s pay stub as proof of residency, but it does
not state that she signed or endorsed the warnings on that form. See Def.’s MSJ Ex. 25 at 3.
21
Rather, it faults Congress for signing and endorsing the warnings on the Annual Student
Enrollment Profile. See id. Ultimately, then, the Disciplinary Action Recommendation Memo
acknowledges this difference between the Annual Student Enrollment Profile (which Congress
signed) and the DC Residency Verification Form (which she did not). Congress’s arguments
regarding these forms thus fail to create any suggestion of pretext that would need to be heard by
the jury.
Nor does the Disciplinary Action Recommendation Form’s mention of Zaki’s negative
evaluation of Congress, as part of one of the twelve Douglas factors, create a reasonable
inference that the District terminated Congress solely because of Zaki’s discriminatory animus.
See Pl.’s Opp. at 6. First, Zaki’s statement was only one of twelve factors considered. And the
sections of the memo considering the appropriate sanction make no reference to it. See Def.’s
MSJ Ex. 25 at 3. Instead, the 2014 LMER investigation and resulting termination
recommendation were explicitly grounded in the findings that Congress had committed two
instances of residency fraud separated by several months. See id. Specifically, in a section
considering Congress’s stated safety rationale for enrolling her daughter at Anacostia, the memo
rejects that justification, stating that “[Congress’s] claims of safety concerns do not explain [her]
enrolling her daughter at Anacostia the second time, [i]n September 2012, over six months after
the first time [because Congress] had ample time to seek out alternative options.” Id. (emphasis
added). It was thus Congress’s ability to seek out “alternative options” in the interim period
between the first and second residency violations that the District relied on in its termination
decision, ultimately concluding that “DCPS cannot justify the Subject intentionally
circumventing its rules, particularly when other options are present.” Id. Second, any reference
to Zaki’s views of Congress is similarly absent from the Termination Memo sent to Congress.
22
See Def.’s MSJ Ex. 26 at 1. Third, the District explicitly noted in the Disciplinary Action
Recommendation Form that “[i]n all previous cases in which an employee reported false
information in order to have his/her child registered with DCPS, the subject’s employment was
terminated except in cases in which the subject resigned prior to [the] termination being
imposed.” Def.’s MSJ Ex. 25 at 2. This past practice, which Congress does not dispute,
provides strong evidence against an inference that DCPS was improperly influenced by Zaki’s
statements, particularly given that they make no reference to Congress’s disability. Again, the
question at this stage is what DCPS honestly and reasonably believed regarding the grounds for
Congress’s termination, see Brady, 520 F.3d at 496. A lone, facially nondiscriminatory
statement by Zaki cannot defeat the substantial and consistent evidence of DCPS’s good faith
belief that Congress’s residency fraud justified her termination.
In sum, because Congress has failed to cast doubt on the honesty or reasonableness of
DCPS’s belief that she had committed residency fraud worthy of termination, she has not raised
a genuine issue of fact as to whether that the stated reason for her termination was pretext for
disability discrimination. The Court will thus grant summary judgment to the District on this
claim.
B. Count IV: Investigation and Termination for Engaging in Protected Activities
The Rehabilitation Act makes it unlawful for employers to “discriminate against any
individual because such individual has opposed any act or practice made unlawful by this
chapter . . . .” 42 U.S.C. § 12203(a) (ADA retaliation provision); see 29 U.S.C. § 791(f)
(incorporating ADA standards in 42 U.S.C. § 12111 et seq.). The elements of a retaliation claim
under the Rehabilitation Act require the plaintiff to show that “(1) she engaged in a protected
activity, (2) the defendant took a materially adverse action against her, and (3) there was a causal
23
connection between the protected activity and the adverse action.” Shinabargar v. Bd. of Trs. of
Univ. of D.C., 164 F. Supp. 3d 1, 16 (D.D.C. 2016). Such claims “are subject to the same
standards as Rehabilitation Act discrimination claims,” including the requirement to show but-
for causation. Hall, 2020 WL 5878032 at *7 (internal quotation marks omitted). Thus, “to prove
the [requisite] causal connection, the plaintiff must show that the adverse action would not have
occurred but for the protected activity.” Id. (cleaned up); see also, e.g., Drasek v. Burwell, 121
F. Supp. 3d 143, 162 (D.D.C. 2015); Marshall v. Potter, 634 F. Supp. 2d 66, 73 (D.D.C. 2009).
Because Congress has met the requirements of a prima facie case and raises a genuine
dispute of material fact as to whether the District’s explanation for LMER’s delayed
commencement of its residency fraud investigation in 2014 is pretextual, the Court will deny
summary judgment to the District on Congress’s retaliation claim.
1. Protected activity
“The act of requesting in good faith a reasonable accommodation is a protected activity”
under the Rehabilitation Act. Solomon v. Vilsack, 763 F.3d 1, 15 (D.C. Cir. 2014).
“Complaining about a failure to receive an accommodation is [also] protected activity for
purposes of a [Rehabilitation Act] retaliation claim.” Congress, 324 F. Supp. 3d at 175 (citing
Solomon, 763 F.3d at 15–16). While the District argues that Congress cannot show she engaged
in protected activity because is the record contains no written notice of her physical disabilities
or requests for accommodation, the Court finds that there is sufficient evidence to permit a
reasonable jury to conclude that Congress both requested such accommodations and complained
to the District when she was denied them.
First, Congress testified in her deposition that she requested accommodations for her
disability in the form of leave to attend doctor’s appointments, access to a handicapped parking
24
space, use of an elevator, and assistance in dealing with emotionally disturbed students.
Congress Dep. 26:2–30:9, 34:20–35:15, 36:3–22, 102:14–104:22, 103:4–15. There is
documentary evidence supporting this testimony. As recounted above, in her September 17,
2014 email exchange with Congress, LMER representative Smith asked about Zaki’s reaction to
one of Congress’s leave requests, see Pl.’s Opp. Ex. M at 1, an issue which Congress testified
was related to her disability, see, e.g., Congress Dep. at 102:14–104:22. And Smith’s email to
Zaki and Congress recounting their October 2014 mediation session notes that Congress had
complained of a “reprimand that she received for leaving early” and reflects Zaki’s observation
that Congress “request[s] time off a lot.” Def.’s Reply Ex. 2 at 2.
Second, the above correspondence is also evidence that Congress submitted complaints to
the District when she was denied leave, as LMER is the DCPS office responsible for handling
claims of disability discrimination. Def.’s MSJ Ex. 15 at 1; Wynn Dep. at 14:20–15:4, 29:3–17.
Indeed, the October 2014 mediation session is itself evidence of Congress’s complaints, as it
took place in response to Congress’s September 2014 complaint, and concerned, among other
things, Congress’s dissatisfaction with Zaki’s leave policy. See Def.’s Reply Ex. 2 at 1–2.
The record at summary judgment thus provides sufficient evidence for a reasonable jury
to conclude that DCPS was aware of Congress’s requests for leave related to her disability, that
Congress lodged complaints about the DCPS’s perceived failure to accommodate these requests,
and therefore that Congress engaged in protected activity under the Rehabilitation Act.
2. Materially adverse action and causal connection
As the Court previously held at the motion to dismiss stage, Congress II, 324 F. Supp. 3d
at 175, the proper focus of the causation element of Congress’s retaliation claim is the causal
relationship between Congress’s September 2014 complaints, which are protected activity, see,
25
e.g., Solomon, 763 F.3d at 15–16, and LMER’s almost simultaneous commencement of its
residency fraud investigation, see Pl. Compl. ¶94 (“Defendant ‘investigated’ Ms. Congress’
alleged residency fraud again and then terminated because of her protected activities”).
Congress therefore must show that LMER’s investigation qualifies as a “materially adverse
action” caused by her protected activity.
a. Materially adverse action
In the employment discrimination context, an adverse employment action is defined as a
“significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significant different responsibilities, or a decision causing [a] significant change in
benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). By contrast, “‘[a]dverse actions’ in the retaliation
context encompass a broader sweep of actions than those in a pure discrimination claim.”
Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). Retaliation claims are “‘not
limited to discriminatory actions that affect the terms and conditions of employment’ and may
extend” further “so long as ‘a reasonable employee would have found the challenged action
materially adverse.’” Id. (quoting Burlington Northern and Santa Fe. Ry. Co. v. White, 548 U.S.
53, 64, 68 (2006). Considering this broader sweep, the D.C. Circuit held in Velikonja v.
Gonzales, 466 F.3d 122, 123–24 (D.C. Cir. 2006) (per curiam), that, where an investigation
prevented a plaintiff from receiving a promotion, the plaintiff had adequately alleged an “adverse
employment action” for a retaliation claim under Title VII because “a reasonable jury could find
that the prospect of such an investigation could dissuade a reasonable employee from making . . .
a charge of discrimination.”
26
District courts in this circuit have followed Velikonja in finding that, while the “mere
initiation” of an investigation is generally not sufficient to constitute adverse action for a
retaliation claim, an investigation which carries the prospect of material consequences for the
plaintiff may constitute adverse action. Compare, e.g., King v. Holder, 77 F. Supp 3d. 146, 151
(D.D.C. 2015) (internal quotation marks and citation omitted); Baloch v. Norton, 517 F. Supp.
2d 345, 358 (D.D.C. 2006) aff’d Baloch, 550 F.3d at 1198–99; with e.g., King, 77 F. Supp 3d. at
151–52; Harrington v. Crawford, 2020 WL 1493918 at *5-6 (D.D.C. March 27, 2020). As the
Supreme Court has explained, the touchstone of material adversity in retaliation claims is
deterrence, i.e., whether a particular action “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68 (internal quotation
marks and citation omitted).
The question here, then, is whether the consequences that might flow from an LMER
residency fraud investigation would “dissuade a reasonable [plaintiff] from making or supporting
a charge of discrimination.” Id. at 57. The answer clearly is yes. As Congress’s case proved,
LMER investigations of residency fraud carry the prospect of serious consequences for
employees, up to termination. See Def.’s MSJ Ex. 25 at 2 (noting that employees previously
found violating the District’s residency rules had been terminated). As such, the commencement
of the LMER investigation in 2014, over a year after the initial referral, rather than Congress’s
subsequent termination, constitutes the relevant adverse action for her retaliation claim.
b. Causal connection
Congress argues that because the LMER residency fraud investigation had sat dormant
for over a year and then was reopened mere hours after she emailed with LMER representative
Smith regarding her leave requests, a reasonable jury could infer that LMER began to investigate
27
after a lengthy period of inactivity solely because of her complaints. While the Court rejects
Congress’s characterization of the investigation as having been closed and then reopened, see
Section III.A.2.(a), it agrees that the circumstances surrounding the LMER investigation support
an inference of causation.
First, LMER began the investigation mere hours after Congress’s September 17th email
exchange with the LMER representative, and less than a month after Congress filed her
retaliation complaint. This timing supports an inference of a causal link. See Woodruff v.
Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (holding that where “less than a month separated” the
plaintiff’s action and the defendant’s retaliatory action “a reasonable finder of fact could infer
causation in that area without more”).
Second, as LMER representative Thomas testified, commencing an investigation so long
after an initial referral was abnormal. See Thomas Dep. at 32:1–19 (stating that “[i]nvestigations
were typically acted on within 24 to 48 hours” after a complaint).6 Such a deviation from
standard employment practices can indicate improper motives. See Walker, 798 F.3d at 1092
(describing circumstances that may undermine the employer’s stated reason, including the
employer's “deviation from established procedures or criteria”).
Third, according to Congress, Zaki announced during their mediation session with Smith
that she should be investigated for residency fraud. Congress Dep. at 128:14–128:18. This
6
While Wynn testified in her deposition that disciplinary actions resulting from residency fraud sometimes
took “months” or “years,” she clarified that the delay she was describing was the time between the investigation’s
findings and any resulting disciplinary action, not between the initiation of the investigation and the actual
investigatory tasks. Wynn Dep. at 77:20–78:11. Such a timeline is fully consistent with the LMER’s actions once it
started investigating here, as the substance of Lee’s investigation took place in November 2014, Def.’s MSJ Ex. 22
at 3, while Congress was only subject to disciplinary action in April 2015, Def.’s MSJ Ex. 26 at 1-3. Nothing in
Wynn’s testimony on this point contradicts Thomas’s description of LMER’s typical practice of quickly
investigating residency fraud complaints. See Thomas Dep at 32:1–19.
28
statement, which was memorialized in Congress’s written submission to Lee during the course of
his investigation, Def.’s MSJ Ex. 22 at 5–6, might reasonably suggest that Zaki played a role in
kickstarting LMER’s investigation.7
Considering all of this evidence, the record is sufficient to permit a reasonable jury to
conclude that the 2014 LMER investigation was motivated by retaliatory animus.
3. Legitimate non-retaliatory reason
In addition to challenging the causation element of Congress’s prima facia case, the
District offers a legitimate, non-retaliatory explanation for the delayed commencement of the
LMER investigation. It maintains that employee turnover in LMER’s investigative division
caused Congress’s case to simply slip through the cracks.
The District’s explanation finds some support in the record. Wanda Malloy—the LMER
official in charge of employee misconduct investigations who was originally tasked with
collaborating with Wynn—left LMER sometime in 2013 without ever meeting with Wynn.
Wynn Dep. at 28:18–22, 31:9–32:7, 49:7–12; Def.’s MSJ Ex. 16 at 1. Her replacement, Daniel
Ellis, served until July 2014, at which point he left LMER and Robert Thomas began as head of
investigations. Thomas Dep. at 11:2–13:2. Given this series of events, it is certainly plausible
that repeated staffing changes explain why the investigation into Congress’s conduct stalled.
But plausibility is not enough to earn summary judgment; the employer is required to
show that there is no genuine dispute of material fact as to its explanation. See Fed. R. Civ. P.
56(a). The District cannot meet this burden here. As recounted above, Congress has brought
7
Notably absent from the summary judgment record is any other evidence concerning whether Zaki
communicated with Smith or anyone else at LMER about commencing another investigation of Congress. Such
evidence (or lack thereof) would appear to be highly relevant to the question of causation were the case to proceed
to trial.
29
forth evidence of the possible retaliatory motive behind the commencement of the LMER
investigation in the form of Zaki’s statements, the deviation from the District’s typical practice
of promptly investigating and processing complaints of employee misconduct, and the temporal
proximity of her complaints. Based on this evidence, a reasonable jury could conclude that
LMER’s investigation was prompted by Congress’s complaints. Accordingly, the Court finds
that Congress has raised a genuine issue of material fact as to whether the District’s non-
retaliatory explanation for the investigation is pretextual and will deny summary judgment to the
District on this claim.
IV. Conclusion
For the reasons stated above, the Court will grant the District’s Motion for Summary
Judgment as to Congress’s disability discrimination claim (Count III) and deny its motion for
summary judgment as to Congress’s retaliation claim (Count IV). A separate order follows.
_________________________
Date: December 18, 2020 CHRISTOPHER R. COOPER
United States District Judge
30