Dickerson v. District of Columbia ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
KENNETH DICKERSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-2213 (PLF)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
____________________________________)
OPINION
Plaintiff Kenneth Dickerson formerly an assistant principal at Woodrow Wilson
High School (“Wilson”), brought this suit against the District of Columbia alleging
discrimination on the basis of race, in violation of Section 1981 of Title 42 of the United States
Code. 1 On July 26, 2018, this Court denied the District’s motion to dismiss Dr. Dickerson’s
fourth amended complaint. See Dickerson v. District of Columbia, 315 F. Supp. 3d 446(D.D.C. 2018). Now pending before the Court is Defendant’s Motion for Summary Judgment
[Dkt. No. 138], filed on July 2, 2021. Upon careful consideration of the parties’ briefs, the
relevant legal authorities, and the entire record in this case, the Court will grant the District’s
summary judgment motion. 2
1
Kenneth Dickerson earned his Doctor of Education from George Washington
University on May 15, 2011. See Def. Ex. C – Dickerson Resume [Dkt. No. 138-10] at 3; Pl.
Ex. 14 – Dickerson Diploma [Dkt. No. 141-6] at 41. Although this case involves events that
occurred before he earned his doctorate, this Opinion will refer to Kenneth Dickerson as Dr.
Dickerson.
2
In connection with the pending motion, the Court has reviewed the following
filings, including the exhibits attached thereto: Plaintiff’s Fourth Amended Complaint
I. BACKGROUND
A. The No Child Left Behind Act
In 2002, President George W. Bush signed the No Child Left Behind Act
(“NCLBA”) into law. See No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115
Stat. 1425 (2002) (codified as amended at 20 U.S.C. § 6301, et seq.), amended by Every Student
Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1802 (2015). The NCLBA required each state and
the District of Columbia “to implement statewide accountability systems for all public schools
and their students, to define education standards, and to establish a system of assessments for
measuring whether students have met those standards.” Center for Law & Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1153 (D.C. Cir. 2005). Under the NCLBA, “a school’s continued failure
to make adequate yearly progress [(“AYP”)] toward meeting proficiency goals [gave] rise to
assistance and intervention.” Id. at 1153-54.
Central to this case, individual schools that failed to meet AYP standards for five
consecutive years were required to undergo “restructuring” by implementing one or more
“alternative governance” arrangements. See WAYNE C. RIDDLE ET AL., CONG. RSCH. SERV.,
RL31284, K-12 EDUCATION: HIGHLIGHTS OF THE NO CHILD LEFT BEHIND ACT OF 2001
(“Complaint”) [Dkt. No. 73]; Defendant’s Answer and Defenses to Plaintiff’s Fourth Amended
Complaint (“Answer”) [Dkt. No. 87]; Defendant’s Memorandum of Points and Authorities in
Support of Motion for Summary Judgment (“Def. Mot.”) [Dkt. No. 138-1]; Defendant’s
Statement of Undisputed Material Facts in Support of Defendant’s Motion for Summary
Judgment (“Def. Facts”) [Dkt. No. 138-2]; Def. Ex. A – Declaration of Donielle Powe (“Powe
Decl.”) [Dkt. No. 138-4]; Def. Ex. AA – Wilson Senior High School Restructuring Plan
(“Wilson Restructuring Plan”) [Dkt. No. 138-5]; Plaintiff’s Opposition to Defendant’s Motion
for Summary Judgment (“Pl. Opp.”) [Dkt. No. 141]; Plaintiff’s Statement of Material Facts in
Dispute (“Pl. Opp. Facts”) [Dkt. No. 141-2]; Pl. Ex. 2 – Deposition of Donielle Powe (“Powe
Depo.”) [Dkt. No. 141-3]; Pl. Ex. 3 – Deposition of Kenneth Dickerson (“Dickerson Depo.”)
[Dkt. No. 141-4]; Pl. Ex 4 – Declaration of Kenneth Dickerson (“Dickerson Decl.”) [Dkt.
No. 141-5]; and Defendant’s Reply in Support of Motion for Summary Judgment (“Def. Reply”)
[Dkt. No. 142].
2
(P.L. 107-110) at 5-6 (2008); see also NCLBA, Pub. L. No. 107-110, § 1116(b)(8)(A), 115 Stat.
at 1485. The NCLBA enumerated five such arrangements:
(i) Reopening the school as a public charter school.
(ii) Replacing all or most of the school staff (which may include the principal)
who are relevant to the failure to make adequate yearly progress.
(iii) Entering into a contract with an entity, such as a private management
company, with a demonstrated record of effectiveness, to operate the public
school.
(iv) Turning the operation of the school over to the State educational agency, if
permitted under State law and agreed to by the State.
(v) Any other major restructuring of the school’s governance arrangement that
makes fundamental reforms, such as significant changes in the school’s staffing
and governance, to improve student academic achievement in the school and that
has substantial promise of enabling the school to make adequate yearly progress.
NCLBA, Pub. L. No. 107-110, § 1116(b)(8)(B), 115 Stat. at 1485 (emphasis added). Separately,
the NCLBA required local educational agencies to develop plans for the involvement of parents
in the process of school improvement, including restructuring. See id. § 1118(a)(2)(A), 115 Stat.
at 1501.
B. The Restructuring of Wilson and the Non-Reappointment of Kenneth Dickerson 3
Dr. Dickerson, an African-American man, first began teaching at Wilson High
School as a music teacher in September 1996. See Dickerson Depo. at 15:5-16; Complaint at
3
To the extent that the District of Columbia argues that Dr. Dickerson has
conceded to the District’s statement of material facts by failing to provide a counterstatement of
genuine issues of material fact, see Def. Reply at 5, the Court disagrees. In his own statement of
material facts in dispute, Dr. Dickerson sets forth his version of the events at issue, see, e.g., Pl.
Opp. Facts at ¶¶ 4, 6, 8-10, 12, 19-20, and sufficiently “isolates the facts that the parties assert
are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of
the record.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151
(D.C. Cir. 1996) (quoting Gardels v. Cent. Intel. Agency, 637 F.2d 770, 773 (D.C. Cir. 1980)).
3
¶ 5; Answer at ¶ 5. 4 In October 1999, he was promoted to the position of dean of students. See
Dickerson Depo. at 15:20-16:20; Pl. Ex. 16 – October 12, 1999 Letter [Dkt. No. 141-7] at 4. In
September 2000, Dr. Dickerson was promoted to the position of assistant principal. See
Complaint at ¶ 6; Answer at ¶ 6; Pl. Opp. Facts at ¶ 15. He was initially appointed to serve as
assistant principal for a one-year term, and until 2008, Dr. Dickerson was reappointed each year
to serve an additional one-year term. Powe Decl. at ¶¶ 5-6; see Pl. Opp. Facts at ¶¶ 15, 17-18.
Dr. Dickerson further asserts that he was Wilson’s senior assistant principal and thus was
designated to be in charge whenever Wilson’s principal was absent. See Complaint at ¶ 6;
Dickerson Depo. at 39:21-41:5. The District denies this assertion. See Answer at ¶ 6. In 2001,
Dr. Dickerson received an end-of-year evaluation of “Satisfactory,” and in 2002 and 2003, he
received end-of-year evaluations of “Outstanding.” See Pl. Ex. 13 – Dickerson Performance
Evaluations [Dkt. No. 141-6] at 26-35. Dr. Dickerson claims that he received evaluations of
“Exceeds Expectations” from 2003 through 2007, although those evaluations are missing from
his employee file. See Complaint at ¶ 10; Dickerson Depo. at 88:13-89:11. He also claims that
he did not receive a performance evaluation during the 2007-2008 school year. Dickerson Depo.
at 87:14-16.
During the 2007-2008 school year, Michelle Rhee was the Chancellor of the
District of Columbia Public Schools (“DCPS”). Pl. Opp. Facts at ¶ 1; Powe Decl. at ¶¶ 7-8. In
accordance with D.C. law, principals and assistant principals in the DCPS system served in year-
long appointments at the discretion of the Chancellor. See Pl. Opp. Facts at ¶¶ 2-3; D.C. Mun.
4
Page number citations to documents that the parties have filed refer to those that
the Court’s electronic case filing system automatically assigns, except for citations to deposition
transcripts, in which case page number citations refer to the original page and line numbers.
4
Regs. subtit. 5-E, § 520.1-.2 (1997). Wilson was put into restructuring in the 2007-2008 school
year pursuant to the NCLBA because it had failed to meet its AYP goals for five consecutive
years. See Pl. Opp Facts at ¶ 5; Powe Decl. at ¶ 7; see also Def. Ex. AB – Quality School
Review Guide (“QSR Guide”) [Dkt. No. 138-6] at 3 (noting “full restructuring must occur for
the 2008-2009 academic year”). Wilson was one of ten high schools – and one of twenty-seven
District of Columbia schools – put into restructuring that academic year. See Def. Ex. D –
School Restructuring Slides (“Restructuring Slides”) [Dkt. No. 138-11] at 11. Dr. Dickerson
knew that Wilson was in restructuring by at least February or March 2008. Pl. Opp. Facts at
¶ 16.
As part of its restructuring, Wilson underwent a Quality School Review (“QSR”)
process. See Def. Facts at ¶¶ 6-8; Restructuring Slides at 11-15; see generally QSR Guide
at 3-11 (describing the QSR process). During this process, Wilson stakeholders (including
teachers, administrators, students, and parents) assessed the high school along a number of
benchmarks in a “school self-assessment.” See QSR Guide at 7. In addition, an external review
team independently assessed Wilson along the same benchmarks and reported their findings to
Chancellor Rhee in a comprehensive QSR report. See QSR Guide at 7-9. The District asserts
that Chancellor Rhee relied in part upon information gathered through this QSR process in
making her final restructuring decision for Wilson and in selecting an appropriate alternative
governance arrangement mandated by the NCLBA. See Def. Facts at ¶ 8; Powe Decl. at ¶ 11;
Wilson Restructuring Plan at 3 (noting that the final restructuring plan “takes into account
student achievement data and results from the [QSR] process”). In response, Dr. Dickerson
asserts that this is not true and that Chancellor Rhee did not rely on the QSR review in making
her restructuring decision. See Pl. Opp. Facts at ¶¶ 6, 8.
5
Also during the 2007-2008 school year, the Wilson Local School Restructuring
Team (“LSRT”), a working group composed primarily of Wilson parents and staff, made
recommendations to Chancellor Rhee regarding the school’s restructuring. See Def. Facts at ¶ 7;
Powe Decl. at ¶ 10; Def. Ex. AC – May 13, 2008 LSRT Memo (“May 13 LSRT Memo”) [Dkt.
No. 138-7] at 2. On May 13, 2008, the Wilson LSRT recommended “[b]ring[ing] in a permanent
principal with a background of strong educational leadership who is committed to restructuring,”
and it also recommended partially reconstituting “the Wilson staff/function,” including Wilson’s
assistant principals. May 13 LSRT Memo at 2. According to the District, this recommendation
advocated the “establish[ment] [of] a new leadership team for the school.” See Def. Facts at
¶¶ 9-10; May 13 LSRT Memo at 2; see also Pl. Ex. 9 – February 2, 2008 LSRT Memo [Dkt.
No. 141-5] at 49 (noting that restructuring seemed to permit a new principal “to choose his/her
own team of administrators”).
Dr. Dickerson disputes this characterization of the recommendation and asserts
that Wilson LSRT’s recommendation was narrower in scope and recommended only the removal
of the school principal. See Pl. Opp. Facts at ¶¶ 9-10; Powe Decl. at ¶ 10 (noting the Wilson
LSRT “recommended the principal be replaced”); see also May 13 LSRT Memo at 16-17
(noting, in the May 13, 2008 LSRT meeting minutes, that “the discussion centered on the
functions that we wanted to be reconstituted . . . which we felt were either poorly defined, or
carried out by multiple people instead of one individual, or in need of examination by the new
principal” (emphasis added)).
On May 15, 2008, Chancellor Rhee and DCPS finalized the Wilson Restructuring
Plan. See Def. Facts at ¶ 11; Def. Ex. E – May 15, 2008 Email [Dkt. No. 138-12] at 2. The
restructuring plan chose to implement the second “alternative governance” arrangement under
6
the NCLBA to “replac[e] all or most of the school staff (which may include the principal) who
are relevant to the failure to make adequate yearly progress.” NCLBA, Pub. L. No. 107-110,
§ 1116(b)(8)(B)(ii), 115 Stat. at 1485; see also Def. Facts at ¶ 12. Under the plan, Wilson’s
“[p]rincipal w[ould] be replaced” and “[o]ther administrators [would] have the option to reapply
if they wish[ed] to remain at the school.” Wilson Restructuring Plan at 8; see Powe Decl. at
¶ 11. The plan noted: “Both the school team and the district believe that significant changes in
the administrative structure at [Wilson] are necessary. A new school leader will work with the
district to develop a leadership team focused on addressing the specific needs of the school in
relation to restructuring.” Wilson Restructuring Plan at 15.
In mid-to-late June 2008, Dr. Dickerson was officially notified by mail that
Chancellor Rhee had decided not to reappoint him as an assistant principal at Wilson for
the 2008-2009 school year. See Pl. Opp. Facts at ¶ 17; Def. Ex. AD – Dickerson Non-
Reappointment Letter (“Non-Reappointment Letter”) [Dkt. No. 138-8] at 2. Similarly, the
principal and other assistant principals of Wilson were not reappointed to serve in those positions
for the next school year. See Pl. Opp. Facts at ¶ 18. The non-reappointment letter stated that
DCPS would “honor any valid retreat rights” that Dr. Dickerson possessed, but it did not state
that Dr. Dickerson could reapply for his former assistant principal position. Non-Reappointment
Letter at 2. According to the District, Dr. Dickerson nevertheless knew that he could have
reapplied to be an assistant principal at Wilson but did not do so. Def. Facts at ¶¶ 19-20; see
Dickerson Dep. at 178:10-180:8.
Dr. Dickerson asserts that he did in fact reapply to be an administrator at Wilson
in June 2016 but was not considered for any administrative position and was later told by DCPS
staff that he could not reapply for his assistant principal position. See Pl. Opp. Facts at ¶¶ 19-20;
7
Dickerson Decl. at ¶ 14 (asserting that Dr. Dickerson signed “a sign-up sheet for any Wilson
personnel interest in remaining at Wilson for the 2008-2009 [school year]” but received no
acknowledgement or response after being interviewed); id. at ¶ 15 (“The first week of July 2008
I went to the DCPS HR office and was told by H.R. personnel . . . that I could not apply and
would not be considered for any DCPS administrative position.”). He also argues that even if he
had been permitted to reapply for his assistant principal position, it would not have made a
difference because DCPS had finalized the hiring of his replacement when he was not
reappointed. See Pl. Opp. Facts at ¶ 20; Def. Ex. G – June 27, 2008 Email [Dkt. No. 138-14]
at 2-3 (agreeing to the appointment of Mary Beth Waits as an assistant principal of Wilson High
School).
On June 30, 2008, Dr. Dickerson was removed as an assistant principal of Wilson.
See Complaint at ¶ 17; Answer at ¶ 17. In fact, none of the assistant principals of Wilson were
reappointed that year. See Pl. Opp. Facts at ¶ 18. In the coming months, DCPS hired four new
assistant principals to serve at Wilson for the 2008-2009 school year, including Mary Beth
Waits, a White woman who Dr. Dickerson claims was his replacement. See Complaint at ¶ 24;
Answer at ¶ 24; Powe Decl. at ¶ 14.
C. Procedural History
On June 30, 2009, Dr. Dickerson and twenty-one other former DCPS principals
and assistant principals filed this race discrimination lawsuit in the Superior Court of the District
of Columbia. See Notice of Removal [Dkt. No. 1]. On November 20, 2009, the District of
Columbia removed the case to this Court. Over the course of a decade, every plaintiff other than
Dr. Dickerson either settled their dispute with the District of Columbia or were dismissed by the
Court for failure to prosecute their claim. See Joint Notice of Voluntary Dismissal [Dkt.
8
No. 65]; Order [Dkt. No. 69]. On March 13, 2018, as the sole remaining plaintiff in this case,
Dr. Dickerson filed his fourth amended complaint alleging race discrimination. See Complaint.
On July 26, 2018, this Court denied the District’s motion to dismiss Dr. Dickerson’s complaint
for failure to state a claim. See Order [Dkt. No. 83]; Dickerson v. District of Columbia, 315 F.
Supp. 3d at 457. After the parties failed to resolve their ongoing dispute through mediation and
after several years of discovery, the District moved for summary judgment on July 2, 2021. See
Defendant’s Motion for Summary Judgment [Dkt. No. 138]. The parties have fully briefed the
motion, which is now ripe for resolution.
II. LEGAL FRAMEWORK
Rule 56(a) of the Federal Rules of Civil Procedure allows a court to grant
summary judgment on a claim “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on a motion for
summary judgment, “[t]he court must view the evidence in the light most favorable to the
nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility
determinations or weighing the evidence.” Baumann v. District of Columbia, 795 F.3d 209, 215
(D.C. Cir. 2015); see also Student Loan Servicing Alliance v. District of Columbia, 351 F. Supp.
3d 26, 44 (D.D.C. 2018) (“Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge at
summary judgment. Thus, [the Court] do[es] not determine the truth of the matter, but instead
decide[s] only whether there is a genuine issue for trial.” (alterations in original) (quoting Barnett
v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013))).
9
“A disputed fact is ‘material’ if it ‘might affect the outcome of the suit under the
governing law.’” Breen v. Chao, 253 F. Supp. 3d 244, 253 (D.D.C. 2017) (quoting Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011)). And “[a] dispute over a material fact is ‘genuine’ if
it could lead a reasonable jury to return a verdict in favor of the nonmoving party.” Id.; see
Grimes v. District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir. 2015).
Under the summary judgment standard, the moving party “bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see FED. R. CIV. P. 56(c).
In response, the nonmoving party must “go beyond the pleadings and by her own affidavits, or
by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. at 324; see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (noting the
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
the material facts” and instead “must come forward with specific facts showing that there is a
genuine issue for trial” (internal quotation omitted) (emphasis omitted)).
III. ANALYSIS
A. Preliminary Matters
Before reaching the merits of the District’s summary judgment motion, the Court
will address several preliminary issues that Dr. Dickerson raises. He first contends that the Court
should strike the declaration of Donielle Powe, the District’s Rule 30(b)(6) witness, because
parts of the declaration allegedly were not based upon personal knowledge. See Pl. Opp. at 11;
10
FED. R. CIV. P. 56(c)(4). It is established, however, that “if a corporate officer is noticed for
deposition pursuant to Rule 30(b)(6), [her] sworn affidavit is admissible, even if that declaration
is not based on personal knowledge.” Weinstein v. District of Columbia Housing Authority, 931
F. Supp. 2d 178, 186 (D.D.C. 2013); see also Dickerson v. District of Columbia, Civil Action
No. 09-2213, 2021 WL 1840396, at *4 (D.D.C. May 7, 2021) (“30(b)(6) witnesses . . . are not
expected to base their testimony on matters entirely within their personal knowledge.” (quoting
Buie v. District of Columbia, 327 F.R.D. 1, 8 (D.D.C. 2018))). By designating Ms. Powe as
its 30(b)(6) witness, the District had a duty to prepare her to testify on matters known by her as
well as those reasonably known by the District. See Alexander v. F.B.I., 186 F.R.D. 137, 141
(D.D.C. 1998) (citing FED. R. CIV. P. 30(b)(6)). Dr. Dickerson has provided no reason to believe
that Ms. Powe was inadequately prepared on the subjects outside of her personal knowledge to
which she testified, and the Court will not exclude her declaration on this basis.
Next, Dr. Dickerson argues that Ms. Powe’s declaration should be stricken
because it was filed after she was deposed and contradicts her prior deposition testimony. See
Pl. Opp. at 12. It is established that a party “cannot create or resurrect a genuine issue of
material fact” – thereby bolstering its argument against summary judgment – “by filing a self-
serving affidavit [or declaration] that contradicts previous sworn testimony.” Thompson v.
Islam, Civil Action No. 01-0585, 2005 WL 3262926, at *3 (D.D.C. July 29, 2005) (citing
Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)); see 10A
CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE § 2726.1 (4th ed. 2021). “[T]he objectives of summary judgment would be
seriously impaired if the district court were not free to disregard” the later-filed, contradictory
statement. Reetz v. Jackson, 176 F.R.D. 412, 414 (D.D.C. 1997) (quoting Pyramid Sec. Ltd. v.
11
IB Resolution, Inc., 924 F.2d at 1123). “Thus, on summary judgment, a district court may strike
or disregard a party’s . . . affidavit if it contradicts his or her own prior sworn deposition
testimony.” Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 815 F. Supp. 2d 148, 163
(D.D.C. 2011). But see Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (noting
the court may consider the later-filed, contradictory statement if “the ‘shifting party can offer
persuasive reasons for believing the supposed correction’ is more accurate than the prior
testimony” (quoting Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d at 1123)).
Contrary to Dr. Dickerson’s view, Ms. Powe’s deposition testimony and
declaration are not in conflict. At her deposition, Ms. Powe testified that “[t]he reasoning for
Mr. Dickerson’s non-reappointment was based on the recommendation from the LSRT to
remove the school leadership team.” Powe Depo. at 24:11-20. Dr. Dickerson suggests that Ms.
Powe’s declaration contradicts this prior statement by stating that the decision not to reappoint
Dr. Dickerson was not based solely on the LSRT’s recommendation but also on information
gathered through the QSR process. See Pl. Opp. at 12; Powe Decl. at ¶ 11; see supra Section I.B.
Far from being “clearly contradictory” to her prior “clear answers to unambiguous questions,”
10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2726.1, Ms. Powe’s
declaration merely elaborates that Chancellor Rhee relied on multiple, not singular, sources of
information when deciding not to reappoint Dr. Dickerson and the other assistant principals. See
also Pl. Ex. 8 – November 13, 2007 LSRT Memo [Dkt. No. 141-5] at 27-28 (noting, in LSRT
meeting minutes, that the LSRT was one of several bodies responsible for assessing and
providing recommendations for Wilson during its restructuring). The Court therefore will not
strike Ms. Powe’s declaration on this basis. See Galvin v. Eli Lilly & Co., 488 F.3d at 1030 (“If
12
the supplemental affidavit does not contradict but instead clarifies the prior sworn statement,
then it is usually considered admissible.”). 5
Finally, Dr. Dickerson argues that the Court should impose sanctions on the
District for failing to preserve several years’ worth of his performance evaluations. See Pl. Opp.
at 13-15; see also Dickerson Decl. at ¶ 12 (noting that the end-of-year annual performance
evaluations “for each school year starting 2003-2004 through 2006-2007 were missing” from
Mr. Dickerson’s personnel file). Rule 37(e) of the Federal Rules of Civil Procedure provides:
If electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced through
additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information
was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
FED. R. CIV. P. 37(e) (emphasis added).
5
Interestingly, the District argues that Dr. Dickerson’s declaration, filed after his
deposition was completed, should also be stricken on similar grounds because it contradicts his
prior sworn testimony in certain respects. See Def. Reply at 6-8 (noting that Dr. Dickerson
asserted in his declaration that he had reapplied for his position, but also noting that he had
previously testified in his deposition that he had not). The Court need not address this dispute
because, as discussed below, whether Dr. Dickerson was permitted to or did in fact reapply for
the position of assistant principal is not a material fact for purposes of summary judgment. See
infra Section III.C.4.
13
As explained below, the undisputed evidence shows that Dr. Dickerson’s annual
performance evaluations were irrelevant to Chancellor Rhee’s decision not to reappoint him as
assistant principal at Wilson. See infra Section III.C.2. Thus, even assuming that the District
failed to properly preserve Dr. Dickerson’s performance evaluations – a claim the District
contests, see Def. Reply at 11 n.5 – doing so did not cause any prejudice to the plaintiff. See
FED. R. CIV. P. 37(e) advisory committee’s note to 2015 amendment (“An evaluation of
prejudice from the loss of information necessarily includes an evaluation of the information’s
importance in the litigation.”); see also Borum v. Brentwood Village, LLC, 332 F.R.D. 38, 47
(D.D.C. 2019) (“Prejudice range[s] along a continuum from an inability to prove claims or
defenses to little or no impact on the presentation of proof.” (alteration in original) (internal
quotation omitted)). In addition, Dr. Dickerson does not claim that the District “acted with the
intent to deprive” him of the use of his performance evaluations in the litigation. FED. R. CIV. P.
37(e)(2). The Court concludes that no sanctions are warranted.
B. Whether the District Employed a Policy or Practice
Dr. Dickerson’s sole claim in this case is brought pursuant to 42 U.S.C. § 1981.
Therefore, in addition to arguing that the District is entitled to summary judgment on the merits
of Dr. Dickerson’s race discrimination claim, see infra Section III.C, the District argues that it
should prevail because Dr. Dickerson has failed to demonstrate that his non-reappointment was
the result of any District custom or policy, a prerequisite to relief under Section 1981. See Def.
Mot. at 18-20.
“Section 1981 ‘protects the equal right of all persons within the jurisdiction of the
United States to make and enforce contracts,’ including contracts for employment, ‘without
respect for race.’” Hamilton v. District of Columbia, 852 F. Supp. 2d 139, 146 (D.D.C. 2012)
14
(quoting Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75 (2006)). Section 1981,
however, “does not itself provide an independent remedy against state actors.” Olatunji v.
District of Columbia, 958 F. Supp. 2d 27, 32 (D.D.C. 2013) (citing Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 733 (1989)). To obtain relief for a violation of the rights guaranteed by
Section 1981 from a municipality, a plaintiff must bring a claim under 42 U.S.C. § 1983 for the
“deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Jett
v. Dallas Indep. Sch. Dist., 491 U.S. at 735. And to do so, a plaintiff must meet the requirements
for municipal liability set forth in Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691
(1978). See Olatunji v. District of Columbia, 958 F. Supp. 3d at 32; see also Onyeanusi v.
District of Columbia, 69 F. Supp. 3d 106, 107 (D.D.C. 2014) (granting summary judgment to
defendant on plaintiff’s Section 1981 claim because plaintiff “assert[ed] no claim for municipal
liability”).
To establish municipal liability under Monell, a plaintiff must demonstrate that
the municipality acted in accordance with a “government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.”
Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. at 694; see also Olatunji v. District of
Columbia, 958 F. Supp. 2d at 32 (“Monell rejects a respondeat superior theory of municipal
liability; the District cannot be held liable simply because it employs a wrongdoer.”). Such a
policy or custom “must be an ‘affirmative link’ that served as the ‘moving force’ behind the
violation.” Al-Kharouf v. District of Columbia, 498 F. Supp. 3d 79, 86 (D.D.C. 2020) (quoting
Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)).
The District argues that Dr. Dickerson has failed to satisfy this requirement
because he has not produced any evidence showing that any change in the racial composition of
15
school administrators at Wilson was due to a municipal policy or custom. See Def. Mot. at 20.
The Court disagrees. A plaintiff may establish municipal liability under Monnell, among several
other ways, by demonstrating that the action complained of was made “by a policy maker within
the government.” Baker v. District of Columbia, 326 F.3d at 1306; see City of St. Louis v.
Prapotnik, 485 U.S. 112, 123 (1988) (“[A]n unconstitutional governmental policy [can] be
inferred from a single decision taken by the highest officials responsible for setting policy in that
area of the government’s business.”); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986) (“[I]t is plain that municipal liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances.”). For purposes of this rule, a policymaker is one
who has final policymaking authority under state law. See Triplett v. District of Columbia, 108
F.3d 1450, 1453 (D.C. Cir. 1997).
Here, it is undisputed that Chancellor Rhee made the ultimate decision not to
reappoint Dr. Dickerson as assistant principal at Wilson for the 2008-2009 school year. See Pl.
Opp. Facts at ¶ 17; Non-Reappointment Letter at 2. And it is also undisputed that Chancellor
Rhee had the authority to reappoint – or to decline to reappoint – principals and assistant
principals at the end of their terms and to set employment policy for DCPS administrators. See
Pl. Opp. Facts at ¶ 3; D.C. Mun. Regs. subtit. 5-E, § 520.1-.2 (1997); D.C. Code § 38-174(a), (c)
(designating the Chancellor as the “chief executive officer of DCPS” and conferring the powers
and responsibilities of office); see also Dickerson v. District of Columbia, 315 F. Supp. 3d
at 456-57 (noting that D.C. municipal regulations conferred various responsibilities on the
Chancellor, including “the authority to take all personnel actions affecting those employees . . .
under . . . her supervision and control”). Thus, Chancellor Rhee was a policymaker acting with
final policymaking authority when she chose not to reappoint Dr. Dickerson, see Triplett v.
16
District of Columbia, 108 F.3d at 1453, and her actions were sufficient to establish a municipal
custom or policy under Monnell. See, e.g., Dave v. D.C. Metro. Police Dep’t, 905 F. Supp. 2d 1,
12 (D.D.C. 2012) (finding the Chief of Police was the final policymaker as to employment
matters); Banks v. District of Columbia, 377 F. Supp. 2d 85, 91 (D.D.C. 2005) (finding the
Department of Health Director was the final policymaker as to employment matters). The
District may be held liable under 42 U.S.C. § 1981 for the actions of Chancellor Rhee.
C. Whether Dr. Dickerson Rebutted the District’s Legitimate, Nondiscriminatory Reason
Turning to the merits of Dr. Dickerson’s sole claim in this case, the District
argues that it is entitled to summary judgment because there is no genuine dispute as to any
material fact to support the claim.
1. Analysis Under the McDonnell Douglas Framework
Section 1981 “prohibits racial discrimination with respect to the right of ‘[a]ll
persons within the jurisdiction of the United States . . . to make and enforce contracts,’ including
contracts for employment.” Lattisaw v. District of Columbia, 118 F. Supp. 3d 142, 155
(D.D.C. 2015) (quoting 42 U.S.C. § 1981(a)) (citing Domino’s Pizza, Inc. v. McDonald, 546
U.S. at 474-75 (2006)). Section 1981 “can be violated only by purposeful [or intentional]
discrimination.” Brannum v. Fed. Nat’l Mortg. Ass’n, 971 F. Supp. 2d 120, 124 (D.D.C. 2013)
(alteration in original) (quoting Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391
(1982)). To prevail on a Section 1981 claim, “a plaintiff must . . . ultimately prove that, but for
race, it would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l
Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020); accord Yazzie v. Nat’l Org. for
Women, Civil Action No. 19-3845, 2021 WL 1209347, at *12 (D.D.C. Mar. 20, 2021).
17
Absent direct evidence of discrimination, courts analyze Section 1981 race
discrimination claims using the familiar three-step McDonnell Douglas framework. See Carney
v. Am. Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 & n.13 (1973); see also Mungin v. Katten Muchin & Zavis, 116
F.3d 1549, 1553 (D.C. Cir. 1997) (“The burdens of persuasion and production for claims raised
under § 1981 . . . are identical to those for claims alleging discriminatory treatment in violation
of Title VII.”). Under this framework, the plaintiff bears the initial burden of establishing a
prima facie case of racial discrimination. See Said v. Nat’l R.R. Passenger Corp., 317 F. Supp.
3d 304, 320 (D.D.C. 2018). Upon doing so, “[t]he burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason for the [adverse employment action].” Id.(alterations in original) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. at 802). If the
defendant does so, the McDonnell Douglas framework falls away and the “one central inquiry”
becomes “whether the plaintiff produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the actual reason and that the employer
intentionally discriminated against the plaintiff on a prohibited basis.” Hamilton v. Geithner,
666 F.3d 1344, 1351 (D.C. Cir. 2012) (quoting Adeyemi v. District of Columbia, 666 F.3d 1344,
1351 (D.C. Cir. 2008)); see Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per
curiam); Wilson v. DNC Servs. Corp., 417 F. Supp. 3d 86, 92 (D.D.C. 2019), aff’d, 831 F.
App’x 513 (D.C. Cir. 2020) (per curiam); Howard v. Fed. Express Corp., 316 F. Supp. 3d 234,
242 (D.D.C. 2018). “The employee can survive summary judgment by providing enough
evidence for a reasonable jury to find that the employer’s proffered explanation was a pretext for
retaliation or discrimination.” Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016).
18
The District asserts that Dr. Dickerson was not reappointed as assistant principal
because “of a categorical decision to non-reappoint the entire leadership at Wilson High School,
in [an] effort to comply with federal requirements for restructuring a school that was failing to
educate its students.” Def. Mot. at 13. Dr. Dickerson does not dispute that a restructuring can
constitute a legitimate, nondiscriminatory reason for an employee’s non-reappointment. See,
e.g., Brandli v. Micrus Endovascular Corp., 209 F. Supp. 3d 356, 361 (D.D.C. 2016) (finding
that terminating employees because of a budget-driven reduction of the employer’s sales force
was a legitimate, nondiscriminatory reason for terminating plaintiff); Edmonds v. Engility Corp.,
82 F. Supp. 3d 337, 341-42 (D.D.C. 2015) (finding that terminating employees “as part of the
company’s larger reorganization” was a legitimate, nondiscriminatory reason for terminating
plaintiff). Rather, he asserts that in this case such a reason was a pretext for discrimination. See
Pl. Opp. at 15-16. Because the defendant has proffered a legitimate, nondiscriminatory reason
for its allegedly discriminatory action, the Court turns directly to the central issue: Has Dr.
Dickerson produced sufficient evidence from which a reasonable jury could find that the
District’s stated reason for not reappointing him was not the actual reason for the non-
reappointment and that the District instead intentionally discriminated against him on the basis of
race? See Brady v. Off. of the Sergeant at Arms, 520 F.3d 490, 494-95 (D.C. Cir. 2008); Wilson
v. DNC Servs. Corp., 417 F. Supp. 3d at 92-93.
2. Whether Not Reappointing Dr. Dickerson Without Considering His Individual Qualifications
Demonstrates Pretext
Dr. Dickerson first argues that the District’s explanation is pretextual because the
decision not to reappoint him was made without considering his individual qualifications, his
record of performance, or even whether he was “relevant to [Wilson’s] AYP failure.” Wilson
19
Restructuring Plan at 8; see Pl. Opp. at 16-21. He maintains that the District and Chancellor
Rhee disregarded applicable DCPS employment policies and procedures by failing to conduct an
individualized assessment of Dr. Dickerson’s fitness to continue serving as an assistant principal
at Wilson. See Pl. Opp. at 18-19. But this does not support an argument of pretext. Rather, it is
consistent with the District’s proffered legitimate, nondiscriminatory reason, namely, that
Chancellor Rhee made a categorical, across-the-board decision to remove the entire
administrative leadership of Wilson because of the failure of Wilson to meet its AYP goals for
five consecutive years while under their watch. See Wilson Restructuring Plan at 8 (choosing
Restructuring Option 2B “Instructional Staff Reconstitution”: “Replace school staff relevant to
AYP failure”).
As noted above, the NCLBA required Wilson to be put into restructuring, which
in turn required the District to select an alternative governance arrangement to rescue the school
from its continued underperformance. See supra Section I.A; Pl. Opp. Facts at ¶¶ 4-5. Having
been given a range of options by the NCLBA, Chancellor Rhee decided to replace the Wilson
administrators who were in charge when Wilson failed to meet its AYP goals, and she based her
decision on the recommendations of the Wilson LSRT “to remove the [Wilson] leadership team
as a whole.” Powe Depo. at 26:8. Although Dr. Dickerson argues that his individual
performance evaluations and credentials suggest that he was an exceptional school administrator,
see Pl. Opp. at 6, it is undisputed that he was an assistant principal at Wilson while it consistently
fell short under the NCLBA’s standards. Dr. Dickerson offers no response to the government’s
assertion that his individual performance – even if it had been exceptional – was irrelevant to the
ultimate non-reappointment decision in light of the overriding fact that he and his fellow Wilson
20
administrators oversaw and failed to correct the school’s continuing underperformance. Powe
Decl. at 24:21-26:8.
It follows that no reasonable juror could find that Chancellor Rhee’s non-
reappointment decision was actually “based on the relative qualifications of the applicants” for
the assistant principal position, Washington v. Chao, 577 F. Supp. 2d 27, 43-44 (D.D.C. 2008),
instead of the fact that the non-reappointed administrators were in charge when Wilson was put
into restructuring for consistently failing to meet its AYP goals. See George v. Leavitt, 407 F.3d
405, 412 (D.C. Cir. 2005) (noting that “performance below the employer’s legitimate
expectations” is a “legitimate reason[] for discharge”).6 Dr. Dickerson’s qualifications-based
arguments therefore are off the mark and do not raise a genuine issue of material fact that the
District’s non-reappointment decision was the result of race discrimination. See Mitchell v.
Nat’l R.R. Passenger Corp., 407 F. Supp. 2d 213, 232, 236-37 (D.D.C. 2005) (granting summary
judgment where the evidence reasonably suggested that the plaintiff’s termination was due to
company-wide restructuring). But see Brown v. Howard Univ. Hosp., 172 F. Supp. 3d 187,
192-96 (D.D.C. 2016) (denying summary judgment where there was little evidence that the
defendant engaged in restructuring, other than eliminating plaintiff’s position).
3. Whether the Appointment of Mary Beth Waits as Assistant Principal Demonstrates Pretext
Dr. Dickerson next argues that the District’s stated reason is pretextual because he
was replaced as an assistant principal by Mary Beth Waits, a White woman. See Pl. Opp. at 16,
20-22. It is established that “[a] plaintiff may prove that an employer had a discriminatory
6
Thus, even assuming Chancellor Rhee had previously met Dr. Dickerson and
knew his race, see Dickerson Decl. at ¶ 13, Dr. Dickerson has provided no evidence to suggest
that the non-reappointment decision was based on selection criteria other than his involvement as
a school administrator in Wilson’s persistent underperformance and placement in restructuring.
21
motive by producing ‘evidence suggesting that the employer treated other employees of a
different race . . . more favorably in the same factual circumstances.’” Howard v. Fed. Express
Corp., 316 F. Supp. 3d at 243 (quoting Brady v. Office of the Sergeant at Arms, 520 F.3d
at 495); Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016) (noting that
a plaintiff may support an inference of pretext by showing “the employer’s better treatment of
similarly situated employees outside the plaintiff’s protected group” (quoting Walker v. Johnson,
798 F.3d 1085, 1092 (D.C. Cir. 2015))). “A person is similarly situated to the plaintiff if he or
she possesses all the relevant characteristics the plaintiff possesses except for the characteristic
about which the plaintiff alleges discrimination.” Wilson v. DNC Servs. Corp., 417 F. Supp. 3d
at 93 (quoting Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019)). Although the question of
whether employees are similarly situated “ordinarily presents a question of fact for the jury, . . .
if a reasonable jury would be unable to find that the plaintiff and the comparator were similarly
situated, the court may decide, as a matter of law, that the two are not similarly situated.” Burton
v. District of Columbia, 153 F. Supp. 3d 13, 67-68 (D.D.C. 2015) (quoting George v. Leavitt,
407 F.3d at 414-15).
Here, although Ms. Waits is of a different race from Dr. Dickerson, plaintiff has
proffered no evidence that she was similarly situated to him. A comparator “must have dealt
with the same supervisor, have been subject to the same standards and have engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish their
conduct or the employer’s treatment of them.” Ey v. Office of Chief Admin. Officer of U.S.
House of Representatives, 967 F. Supp. 2d 337, 345 (D.D.C. 2013) (quoting Wilson v. LaHood,
815 F. Supp. 2d 333, 338-39 (D.D.C. 2011)). Ms. Waits had no previous affiliation with Wilson
High School, and she was not an administrator at Wilson when it consistently failed to meet its
22
AYP goals and was put into restructuring. See Complaint at ¶ 24; see also Dickerson Depo.
at 139:14-140:15 (noting Ms. Waits had experience as a middle school administrator in
Maryland). Indeed, Ms. Waits was hired because she was an outsider with prior experience
helping a school out of restructuring. Def. Ex. G – June 27, 2008 Email [Dkt. No. 138-14]
at 2-3. Simply put, Ms. Waits did not have the same – let alone any – role or responsibilities at
Wilson High School before Dr. Dickerson’s non-reappointment. She was not similarly situated
to him. See White v. Tapella, 876 F. Supp. 2d 58, 70 (D.D.C. 2012) (finding that the proffered
comparator and the plaintiff were not similarly situated because they “did not hold the same
positions”). But see Wheeler v. Georgetown Univ. Hosp., 812 F.3d at 1116 (finding that a jury
could reasonably conclude that nurses working in the same or a comparable unit as the plaintiff
were similarly situated to the plaintiff). Ms. Waits’ appointment does not demonstrate pretext.7
4. Whether Preventing Dr. Dickerson from Reapplying for His Position Demonstrates Pretext
Finally, Dr. Dickerson argues that the District precluded him from reapplying for
his position as Assistant Principal, exhibiting racial animus. See Pl. Opp. at 17-18, 21-23. The
District maintains that under the restructuring plan “all of the Assistant Principals would have to
reapply for their jobs [after being non-reappointed] if they wanted to stay on under the new
7
Dr. Dickerson has not identified any other comparators that evince pretext. In his
answers to the District’s interrogatories, Dr. Dickerson offered only one example of a White
DCPS administrator – Patrick Pope, the principal of Hardy Middle School – who he argued was
similarly situated and reappointed at the end of the school year. See Pl. Ex. 18 [Dkt. No. 141-7]
at 25; see also Def. Ex. F [Dkt. No. 138-13] at 4. But, as Dr. Dickerson concedes, Hardy Middle
School was not in restructuring in the 2007-2008 school year and therefore was not required to
select alternative governance arrangements as Wilson was required to do. Pl. Opp. Facts at
¶¶ 21-22; see also Restructuring Slides (noting Hardy Middle School was “not placed in [any]
improvement status”). Thus, Dr. Dickerson and Mr. Pope were not in similar factual
circumstances, and Mr. Pope’s reappointment does not suggest that Dr. Dickerson was not
reappointed for racially discriminatory reasons.
23
[principal] and under the new plan.” Powe Decl. at ¶ 11; see Wilson Restructuring Plan at 8; see
also id. Powe Decl. at ¶ 10 (noting the Wilson LSRT recommended that the entire school
leadership team “be replaced or reconstituted, meaning administrators could reapply for their
position”). Yet the non-reappointment letter nowhere states that Dr. Dickerson could reapply for
his position, see Non-Reappointment Letter at 2, and Dr. Dickerson avers that he was explicitly
instructed by DCPS human resources personnel that he “could not apply and would not be
considered for any DCPS administrative position,” Dickerson Decl. at ¶ 15; see Pl. Ex. 15 [Dkt.
No. 141-6] at 44. In addition, the parties dispute whether Dr. Dickerson in fact applied for an
administrator position at Wilson for the 2008-2009 school year. Compare Powe Decl. at ¶ 13
(“Mr. Dickerson did not reapply to serve at Wilson for the next year.”), with Dickerson Decl. at
¶ 14 (asserting that Dr. Dickerson signed a “sign-up sheet for any Wilson personnel interested in
remaining at Wilson” and was interviewed by DCPS personnel), and Pl. Opp. Facts at ¶ 20
(“[P]rior to termination in June 2008, Dr. Dickerson had applied and was already in the DCPS
pool of eligible candidates to serve in a Principal capacity during the 2008-2009 SY.”).
Although there appear to be genuine disputes of fact regarding whether Dr.
Dickerson was afforded the opportunity to reapply for a position at Wilson after he was not
reappointed and whether Dr. Dickerson in fact reapplied, the Court finds that these are not
genuine disputes of material fact that withstand summary judgment. See Breen v. Chao, 253 F.
Supp. 3d at 253 (“A disputed fact is ‘material’ if it ‘might affect the outcome of the suit under
the governing law.’” (quoting Talavera v. Shah, 638 F.3d at 308)). As discussed above, the
undisputed evidence shows that Chancellor Rhee decided to replace the entire Wilson leadership
team because they were in charge when Wilson failed to meet its AYP goals under the NCLBA.
Even if DCPS prevented Dr. Dickerson and other recently non-reappointed administrators from
24
reapplying for their former positions weeks later, doing so would be consistent with that
decision. Indeed, Dr. Dickerson has not identified any other Wilson administrator who was not
reappointed but nevertheless was permitted to reapply for their old position. Moreover, Dr.
Dickerson does not otherwise explain how being prevented from reapplying to his position
establishes pretext or demonstrates that the District’s personnel decision was racially
discriminatory.
IV. CONCLUSION
For the reasons set forth in this Opinion, the Court will grant the District of
Columbia’s motion for summary judgment. An order consistent with this Opinion shall issue
this same day.
SO ORDERED.
________________________
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: March 3, 2022
25