Forkwa v. Symbral Foundation for Community Services Inc. ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PATRICK FORKWA, )
)
Plaintiff, )
)
v. ) Civil Case No. 15-1952-RMC
)
SYMBRAL FOUNDATION FOR )
COMMUNITY SERVICES, INC. )
)
Defendant. )
)
MEMORANDUM OPINION
Patrick Forkwa worked as an aide at a longterm care facility operated by the
Symbral Foundation for Community Services, Inc., where he alleges that he suffered
discrimination due to his sex and was retaliated against after he complained. After full
discovery, Symbral moves for summary judgment in its favor, which the Court will grant for the
reasons stated below.
I. FACTS
The facts in this matter originate from multiple sources. First, of course, is the
Complaint, which was drafted by Mr. Forkwa with the advice of unidentified counsel.1 Second,
the Court reviews the discovery material and exhibits submitted by the parties through their
1
Compl. [Dkt. 1]; see also Forkwa Dep. [Dkt. 18-2] at 28:1-4 (“I just say I got some advice . . .
[f]rom a counsel,” who was not identified despite questioning).
1
respective motions, which include affidavits and Mr. Forkwa’s own deposition testimony. 2 The
Court notes that, in its motion, Symbral rests on a defense of law and not disputes of fact.3
Mr. Forkwa, a native of Cameroon, came to the United States in 2005. Forkwa
Dep. at 38:15-18. He began to work for Symbral in 2008. Forkwa Decl. [Dkt. 18-1] ¶ 2.
Symbral provides housing and daily assistance to persons with significant mental disabilities,
providing care in a number of different residences throughout the greater D.C. area. Def.’s
Statement of Undisputed Facts (Def.’s SOF) [Dkt. 17-1] ¶ 1. Mr. Forkwa worked as a Relief
Counselor, providing assistance, doing light housekeeping, making meals, and serving as a
companion to Symbral’s residents. Forkwa Decl. ¶ 2.
In 2011, Mr. Forkwa worked in Symbral’s “Benjee House” which housed two
residents. Def.’s SOF ¶ 4. Mr. Forkwa was supervised there by House Manager Henry Glay, his
immediate supervisor, and by Kendel Larose Paul,4 Resident Manager, who was Mr. Forkwa’s
second-line supervisor. Larose Aff. [Dkt. 24-1] ¶ 2. Leon Mohammed was Symbral’s Chief
Operating Officer and, in 2011, acting Personnel Director. Mohammad Decl. [Dkt. 24] ¶ 2. Mr.
Forkwa understood that Mr. Mohammed was the ranking official. Forkwa Decl. ¶ 3. Mr.
Forkwa also worked as a part-time substitute teacher, on an on-call basis, with Montgomery
County Public Schools (MCPS). Def.’s SOF ¶ 5; Forkwa Dep. 68:14-69:1.
2
The Court advises that summary judgment is not the occasion for resolving factual differences
between a plaintiff and his own lawyer.
3
Mr. Forkwa filed a “Motion/Advisory for Forkwa’s Response to Defendant’s Motion for
Summary Judgment” [Dkt. 19], in which he alleges that Symbral failed to produce records it
obtained through a Freedom of Information Act request. Mr. Forkwa is a civil plaintiff, not a
criminal defendant, and Symbral is under no obligation to produce information aside from those
disclosures required under the Federal Rules of Civil Procedure or requested by Mr. Forkwa in
discovery. Mr. Forkwa identifies no discovery request to which Symbral’s FOIA material would
be responsive. Accordingly, his motion will be denied.
4
Mr. Larose has since changed his name to Kendal Paul, but will be referred to herein as Larose
to maintain consistency with most documents in this matter.
2
A. Events of May-June 2011
On May 26, 2011, Mr. Forkwa was scheduled to work his normal shift between
4:00 and11:00 P.M. at Benjee House. Def.’s SOF ¶ 6. His coworker, Bih Mbanwi, was
scheduled to relieve him at 11:00 p.m. Id. During the evening shift change, Ms. Mbanwi could
not locate her own key to the Benjee House medicine cabinet, and Ms. Mbanwi and Mr. Forkwa
argued over whether Mr. Forkwa was obligated to give Ms. Mbanwi his key. Id. ¶ 7. After that
argument occurred—which is not disputed—the chain of events becomes murky; it appears that
Mr. Forkwa may have initially refused to give Ms. Mbanwi his key, but relented after talking
with Mr. Glay by phone. Forkwa Dep. 87:13-88:12. However, at that point Ms. Mbanwi refused
to accept his key. See Def.’s SOF ¶ 10. Based on Mr. Forkwa’s deposition testimony and the
documentation submitted by the parties, apparently Mr. Forkwa left Benjee House without
giving Ms. Mbanwi his key, although after having offered it to her. See Forkwa Dep. 88:12-
89:10; Mbanwi Disciplinary Notice [Dkt. 17-5].
A few hours later, in the early morning hours of May 27, 2011, one of the
residents living in Benjee House, A.M., passed away. Def.’s SOF ¶ 11. Mr. Glay placed both
Mr. Forkwa and Ms. Mbanwi, who had been the last caregivers to A.M., on administrative leave
without pay (LWOP) while Symbral investigated his death. See Larose Decl. ¶ 6; Glay Decl.
[Dkt. 17-6] ¶ 4.
On June 6, 2011, Mr. Larose met with Ms. Mbanwi and provisionally reinstated
her to work, warning her that she could still be discharged after investigation. Larose Decl. ¶ 8.
On June 22, Mr. Larose met with Ms. Mbanwi again and terminated her employment. Id. ¶ 8. A
few days later, Ms. Mbanwi met with Mr. Mohammad, to whom she had appealed her discharge.
3
Mr. Mohammad reinstated Ms. Mbanwi, although Mr. Larose did not learn of this for several
weeks. Id. ¶ 9; Mohammad Decl. ¶ 4.
Mr. Forkwa was not provisionally reinstated in the same manner as Ms. Mbanwi;
he remained on unpaid administrative leave from May 27, 2011 until his full reinstatement on
June 22, 2011. Forkwa Decl. ¶ 5. Symbral states that this timing was due to scheduling conflicts
between Messrs. Gray, Larose and Forkwa. Records from Montgomery County schools show
that Mr. Forkwa worked as a substitute teacher, often for an entire school day, until June 11,
2011. See Def.’s SOF ¶ 19. No records indicate what efforts Symbral undertook to meet with
Mr. Forkwa prior to June 22. Id. ¶ 9.
At an unspecified time during this period, Mr. Forkwa contacted Mr. Glay to
complain that he remained on LWOP while female staff were working. Forkwa Dep. at 117:3-
13. Mr. Forkwa alleges that he complained to Mr. Glay that he was being discriminated against,
to which Mr. Glay allegedly responded that Mr. Glay “sympathizes with women.” Id. at 90:1-9.5
Mr. Glay also told Mr. Forkwa during this period, possibly during the same conversation, that he
“sympathize[d] with [Mr. Forkwa]” due to the death of A.M., for whom Mr. Forkwa had cared.
Id. at 113:21-114:5. Ultimately, Mr. Forkwa alleges that he complained to Mr. Glay, Mr.
Larose, and Mr. Mohammad of sex discrimination because he remained on LWOP. See Forkwa
Decl. ¶ 4. On June 22, Mr. Glay met with Mr. Forkwa and gave him a disciplinary action notice
that turned his period of LWOP into a disciplinary suspension. Def.’s SOF ¶ 22. The notice said
that Mr. Forkwa was being suspended for the period between May 27 and June 22, 2011 for
“declin[ing] to follow manager instruction;” “fail[ing] to communicate” and several other
5
Mr. Glay denies making these statements. Glay Decl. ¶ 5.
4
infractions. Forkwa 6/22/2011 Disciplinary Notice [Dkt. 17-5]. Mr. Forkwa returned to work
immediately.
Mr. Forkwa was also given a disciplinary notice in July 2011 for failure to turn in
his time cards on time. Forkwa 7/12/2011 Disciplinary Notice [Dkt. 18-4]. He did not identify
this discipline as either discriminatory or retaliatory until his opposition brief, see Pl.’s Opp’n
[Dkt. 18] (Opp’n) ¶ 6, which is too late to be considered. See Williams v. Spencer, 883 F. Supp.
2d 165, 181 n.8 (D.D.C. 2012) (“Where the . . . complaint does not make a claim, plaintiff
cannot add a new claim through an opposition brief.”).
B. Events of October 2011
On October 27 in the same year, Symbral conducted a mandatory training session
for its counselors at the Shepherd Library starting at 10:00 A.M. Compl. ¶ 11. Afterwards, a
controversy ensued as to whether Mr. Forkwa had left this training early without leave or was
released. Mr. Forkwa swears that he only left after Mr. Larose announced that individuals with
medication licenses, which he possessed, could leave. Forkwa Decl. ¶ 9. Mr. Forkwa submits
the Declaration of Kalin-Samlan Commelle, who attests that those with medication licenses were
released about noon. See Commelle Decl. [Dkt. 18-6] ¶ 3. At one point during the training,
perhaps after a break, Mr. Larose asked Mr. Glay to gather his staff into the meeting area. Glay
Aff. ¶ 6. Learning from Mr. Glay that Mr. Forkwa was no longer at the Library, and believing
that Mr. Forkwa had either not attended the mandatory training or had left early without
permission, Mr. Larose met with Mr. Forkwa the next day, October 28, to discuss his non-
attendance or early departure. Larose Decl. ¶ 12-13. Mr. Forkwa reminded Mr. Larose that he
was at the training at the beginning—when he helped Mr. Larose to distribute materials—but Mr.
5
Larose remained unconvinced that Mr. Forkwa had not left early without permission.6 Mr.
Forkwa states that Mr. Larose told him not to report to work. Forkwa Decl. ¶ 10. Mr. Forkwa
then complained that certain female counselors did not attend the training session but were not
being punished or left off the schedule. Id.
The parties disagree about the precise sequence of events that followed, but agree
generally as to the following: after his conversation with Mr. Larose, Mr. Forkwa called Mr.
Mohammad to complain about not being allowed to work. Id. ¶ 11. After leaving several voice
messages over the next few days, Mr. Forkwa reached Mr. Mohammad by phone and
complained that he was being discriminated against. Id. ¶ 12. Mr. Mohammad met with Mr.
Forkwa soon after to discuss his status and complaint. Mohammad Decl. ¶ 5. Sometime after
that meeting—the exact date is contested—Mr. Mohammed told Mr. Forkwa that he could return
to work at a different Symbral residence, called “Harmony House.” Forkwa Decl. ¶¶ 12-13. Mr.
Forkwa does not appear to have had an objection to this transfer and may have sought it. See id.
¶¶ 13-15; Def.’s SOF ¶ 29.
However, Mr. Forkway says that he called but never heard back from Edith Glay,
first-line supervisor of Harmony House (and wife of Mr. Glay), in his effort to make
arrangements to work there. Forkwa Decl. ¶ 15. When he called again and reached Ms. Glay,
Mr. Forkwa was told that the position been filled by another Symbral employee. Id. In contrast,
Ms. Glay states that she spoke with Mr. Forkwa directly and arranged for him to arrive at
Harmony House on a date and time certain for a training session. Edith Glay Decl. [Dkt. 17-10]
6
Mr. Forkwa admits that he left Shepherd Library before the end of the training session but
insists that he was excused. The Court gives the benefit of the disputed fact to Mr. Forkwa but
does not find it necessary to resolve the issue. As discussed below, the point becomes irrelevant
because Mr. Larose’s directions to not report for work were subject to appeal to Mr. Mohammed.
6
¶ 6. She further states that Mr. Forkwa had called to say that he was lost and that she gave him
directions to Harmony House. Id. When Mr. Forkwa failed to arrive as scheduled, Ms. Glay
informed Mr. Mohammed that he was a no-show. Id. ¶ 6-7. Ms. Glay and Mr. Mohammed both
aver that Mr. Mohammed transferred another employee to the open position a few days later. Id.
¶ 8; Mohammed Decl. ¶ 8. The Court finds no material conflict in the evidence as the distinction
is without a difference; the decision to fill the Harmony House position with another employee
may have been made immediately, as Mr. Forkwa argues, while the actual transfer occurred days
later.
“[A]s soon as [he] got off the phone” with Ms. Glay, Mr. Forkwa called Mr.
Mohammed to complain that Ms. Glay had failed to hold the job for him. Forkwa Decl. ¶ 16.
Mr. Mohammed said he would look into it but on November 14, 2011, he informed Mr. Forkwa
that “there was nothing that he could do to get him a work schedule.” Id. Mr. Forkwa has not
worked for Symbral since October 2011.
C. Procedural History
Following the events of October and November 2011, Mr. Forkwa filed a
complaint with the District of Columbia Office of Human Rights (DCOHR), alleging disparate
treatment on the basis of sex and retaliation. Def.’s Reply Ex. 1, DCOHR No Cause Finding
Letter (DCOHR Letter) [Dkt. 20-1] at 1. The charge was cross-filed with the Equal Employment
Opportunity Commission, alleging a violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. Certain facts as they appear in the DCOHR Letter
are different from those presented in the submissions to this Court, and not all arguments made
before the DCOHR are made here. DCOHR issued its Letter finding No Cause on September 4,
2014. The DCOHR Letter will be admitted for the limited purposed intended by Symbral, that
7
is, to show that Mr. Forkwa did not complain that retaliation caused the June 2011 events or
mention Mr. Glay’s statement that he sympathized with women. The Court will not rely on
DCOHR’s analysis, but itself analyze the record evidence here.
On November 4, 2015, Mr. Forkwa filed the instant Complaint. After discovery,
Symbral filed its Motion for Summary Judgment on February 8, 2017. See Def.’s Mot. for
Summary Judgment [Dkt. 17] (Def.’s MSJ). Now represented by counsel, Mr. Forkwa opposed,
see Pl.’s Opp’n, and Symbral replied, see Def.’s Reply [Dkt. 20]. Mr. Forkwa also filed a
Supplemental Memorandum soon after filing his Opposition, see [Dkt. 19], and Symbral
submitted substitute declarations for Messrs. Mohammed and Larose, which simply added
signatures and dates. See Supplemental Declarations [Dkt. 24]. The Court held oral argument
on July 11, 2017, following which Mr. Forkwa submitted supplemental citations in response to
questions posed by the Court at the argument. See Notice of Supplemental Citations [Dkt. 25].
The matter is now ripe for disposition.
II. STANDARD OF REVIEW
Symbral moves for summary judgment. Under Rule 56 of the Federal Rules of
Civil Procedure, summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Summary judgment is properly granted
against a party who “after adequate time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
8
In ruling on a motion for summary judgment, a court gives the non-movant the
benefit of all permissible inferences that may be drawn from the facts alleged in the complaint,
and accepts the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255; Talavera, 638
F.3d at 308. A nonmoving party, however, must establish more than “[t]he mere existence of a
scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. In addition, the
nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that
would enable a reasonable jury to find in its favor. Id. If the evidence “is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50.
III. ANALYSIS
Mr. Forkwa alleges sex discrimination leading to disparate treatment between him
and his female colleagues and/or Ms. Mbanwi in violation of Title VII. See Compl. Count I. He
also alleges retaliation based on protected activity, in violation of Title VII. See Compl. Count
II.7
A. Disparate Treatment under Title VII
As amended by the Equal Employment Opportunity Act of 1972, Title VII
prohibits discrimination in the workplace, because of an individual’s race, color, sex, religion, or
nationality. The “two essential elements of a discrimination claim” under Title VII are “that (1)
the plaintiff suffered an adverse employment action (2) because of the plaintiff's race, color,
religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
7
Plaintiff has definitively stated that he is not making any discrimination claim on the basis of
race. See Opp’n at 1.
9
In addition, Title VII was amended by the Civil Rights Act of 1991, 42 U.S.C.
§ 2000e-2(m), specifically to provide a statutory basis for cases of “mixed-motive”
discrimination, albeit with limited remedies. Title VII recognizes a “mixed-motive” theory of
violation in which an employer had both permissible and impermissible reasons for its
discriminatory action. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526 (2013)
(discussing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and the effect of the Civil Rights
Act of 1991, 42 U.S.C. § 2000e-2(m)). A mixed motive is one in which the employee’s protected
class (race, color, sex, etc.) “was a motivating factor for [the] employment practice, even though
other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). Under
Title VII, therefore, there are both “single-motive” and “mixed-motive” theories of
discrimination. See Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007).
If a plaintiff cannot provide direct evidence of discrimination, courts apply the
burden-shifting framework established long ago in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), by which the burden of production shifts. As described by the Supreme Court,
the McDonnell Douglas framework applies as follows: A plaintiff must first make out a prima
facie case (1) that he is a member of a protected class; (2) that he suffered an adverse
employment action; and (3) that the unfavorable action gives rise to an inference of
discrimination. Id.; see Youssef v. FBI, 687 F.3d 397, 401-02 (D.C. Cir. 2012). The burden then
shifts to the defendant, which must “articulate some legitimate, nondiscriminatory reason” for its
action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the defendant does
so, the plaintiff must show by a preponderance of the evidence that the reason advanced by the
employer was merely a pretext to hide discrimination. Id. If a jury does not credit the
employer’s permissible motive and finds that the real reason for its action was illegal
10
discrimination, the employee has proved his case and is entitled to a full award of damages,
including backpay, reinstatement, compensatory damages, attorney fees, and the like. If,
however, the jury credits both parties and finds that the employer had a mixed motive—it
discriminated against the plaintiff but also that it had a legitimate non-discriminatory reason for
its action—the Civil Rights Act of 1991 limits the plaintiff’s recovery to a declaratory judgment
of discrimination and attorney fees and costs, but no backpay, compensatory damages or
reinstatement. Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C. Cir. 2008).
To prove a claim of disparate treatment, a plaintiff must first show that he
suffered an adverse employment action; and, as relevant here, that the adverse employment
action was based on his sex. An “adverse employment action” is an established legal term
meaning “a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (citing Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). “[N]ot everything that makes an employee
unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir.
2001). An employee must “experience[] materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1131 (D.C. Cir. 2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)
(distinguishing between non-actionable “purely subjective injuries” and actionable “objectively
tangible harm”). An actionable adverse action “in most cases inflicts direct economic harm.”
Burlington Indus., 524 U.S. at 762.
11
“If a plaintiff is able to produce direct evidence of discrimination, he may prevail
without proving all the elements of a prima facie case.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)).
Direct evidence of discrimination may entitle a plaintiff to a jury trial irrespective of the
employer’s defense. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002); Ayissi-Etoh v.
Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (holding that use of a racially-charged comment
“alone is direct evidence that in this case [the plaintiff] is entitled to a jury trial”).
B. Mr. Forkwa’s Sex Discrimination Allegations
Mr. Forkwa asserts first that he was subjected to sex discrimination when he was
placed on unpaid leave following the death of the Benjee House resident while female
counselors, including Ms. Mbanwi, were permitted to work. In so doing, Mr. Forkwa asserts a
rare case of sex discrimination in which the alleged discriminators—Messrs. Glay and Larose—
are of the same sex as he. Such a case is often an uphill climb. See Glass v. Lahood, 786 F.
Supp. 2d 189, 216 (D.D.C. 2011) (stating that when a plaintiff’s alleged discriminators belong to
the same protected class, this “weighs against an inference of discrimination”).
Mr. Forkwa argues that Mr. Glay’s comment that Mr. Glay “sympathizes with
women” constitutes direct evidence of discrimination and he is, therefore, not obligated to satisfy
the McDonnell Douglas test of shifting burdens. See Opp’n at 12-13. The statement, denied by
Mr. Glay, is shorn of its context in Mr. Forkwa’s re-telling, making its precise meaning unclear,
since it could be benign. Its value as direct evidence of sex discrimination is further undercut by
Mr. Forkwa’s admission that Mr. Glay also said that he “sympathize[s] with [Mr. Forkwa].”
Forkwa Dep. at 113:21-114:5
12
Additionally, Mr. Glay put both Mr. Forkwa and Ms. Mbanwi in LWOP status on
May 27, 2011. Ms. Mbanwi is Mr. Forkwa’s only true comparator, as both were the only ones
who had cared for the deceased resident just before his death. It was Mr. Larose, Mr. Glay’s
supervisor, who conditionally reinstated Ms. Mbanwi on June 6, and Mr. Forkwa makes no
allegation that Mr. Larose either made any statement similar to Mr. Glay, or was influenced by
Mr. Glay’s thinking at the relevant time. Mr. Forkwa’s testimony about Mr. Glay’s comment
may be evidence of discrimination by Mr. Glay, not Mr. Larose, but it is not enough on its own
to make out a direct case of discrimination sufficient to override the usual burden-shifting
analyses.
Thus, the Court turns to the McDonnell Douglas test. “Although intermediate
evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Jackson v. Gonzales, 496 F.3d 703, 706 (D.C. Cir. 2007). When an
employer “has asserted legitimate, non-discriminatory reasons for” the challenged action, “the
district court need not—and should not—decide whether the plaintiff actually made out a prima
facie case under McDonnell Douglas.” Brady v. Office of Sgt. at Arms, U.S. House of Reps., 520
F.3d 490, 494 (D.C. Cir. 2008). “[T]he 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 that the employer intentionally
discriminated against the employee . . . ?” Id.
Mr. Forkwa argues that he suffered two adverse actions: (1) Symbral placing him
on LWOP and leaving him in that status despite reinstating Ms. Mbanwi; and (2) Symbral giving
him a disciplinary notice on June 22, which turned his entire period of LWOP (May 27 to June
13
22) into a suspension. See Opp’n at 12. Symbral asserts that Mr. Glay placed both Mr. Forkwa
and Ms. Mbanwi on LWOP pending an investigation into the death of A.M., a resident client of
Benjee House. This assertion is not contested by Mr. Forkwa, although he appears to have
believed initially that all counselors were placed on LWOP, see Forkwa Dep. 89:11-22, when it
was only him and Ms. Mbanwi. Symbral further asserts that any delay in reinstating Mr. Forkwa
was due to the busy conflicting schedules of the parties involved. See Def.’s Reply at 10-11. It
points to the fact that Mr. Forkwa was substitute teaching in early June, and Messrs. Larose and
Glay were attending to the deceased resident’s family, an investigation of the death by the
District of Columbia Metropolitan Police Department, and Symbral’s own internal investigation,
in addition to overseeing care for Symbral’s residents. Id.
The Court finds that Mr. Forkwa’s alleged two acts of discrimination actually
constitute a single financial wrong sufficient to constitute an adverse action: whether he was left
in LWOP status or suspended for that period in the after-the-fact disciplinary notice, Mr. Forkwa
suffered a single adversity, that is, the loss of pay for the relevant period.
Symbral’s explanation that its supervisors and Mr. Forkwa had conflicting
schedules in early June, and therefore could not meet, is not contested by Mr. Forkwa, who does
not dispute his work records as a substitute teacher at MCPS. The burden shifts to Mr. Forkwa
to provide evidence from which a reasonable jury could find that Symbral’s non-discriminatory
reasons were a pretext to hide sex discrimination. This he fails to do. Mr. Forkwa does not
dispute that a client resident died and that necessary investigations were conducted. He also
acknowledges that he was contacted about June 13, 2011, and asked for information concerning
patient care of the deceased client resident, which he provided to Symbral around June 15.
Clearly, the investigation was still ongoing on that date. Despite his confusion about the number
14
of counselors initially placed on LWOP, Mr. Forkwa does not dispute that only he and Ms.
Mbanwi cared for the deceased resident immediately before the resident’s death and would
potentially have been responsible parties had some error been made. Further, Mr. Forkwa does
not dispute that Mr. Larose terminated Ms. Mbanwi on June 22, the same day that Mr. Glay
reinstated Mr. Forkwa, at the end of Symbral’s internal investigation.
However, Mr. Forkwa argues that Symbral has provided no additional reasons for
the delay in returning him to work beyond scheduling difficulties, as to which he expresses his
doubts. See Opp’n at 16-17 (“[O]ther than inconvenience, being ‘busy’ or ‘scheduling,’
Defendants do not offer a legitimate reason for why it took them almost a month to contact
Plaintiff about Mbanwi’s various admissions [that she had refused the offer of Mr. Forkwa’s
key].”). Mr. Forkwa says that he tried to meet with Mr. Glay or Mr. Larose when Mr. Forkwa
went to the office unannounced more than once during June, although he “cannot remember the
specific dates.” Forkwa Dep. 118:8-9. Mr. Forkwa adds that when he did go to the office, the
“supervisor[s were] not even in the office” because “they only come when they . . . don’t have
any activity to do in the houses.” Id. 118:10-11; 15-17. Not only does this testimony not support
Mr. Forkwa’s argument that Symbral’s scheduling difficulty was mere pretext, but it actually
lends some support to Symbral’s explanation that both supervisors were busy dealing with the
aftermath of the resident’s death.
The greatest weakness in Mr. Forkwa’s argument is his insistence that the entire
matter of his placement on LWOP concerned solely the question of whether he had offered his
key to the medication cabinet to Ms. Mbanwi. He argues, “[w]hat’s more, is that Symbral had
communications with Forkwa on June 15, 2011, regarding the incident at the Benj[ee] House.
Symbral could have indicated to him that he did nothing wrong and could resume work . . . .”
15
Opp’n at 17. He adds that “all of Symbral’s officers still knew that Forkwa had not committed
any wrongdoings for almost an entire month and was still not allowed to return to work.” Id. at
16. Contrary to this explanation, the undisputed facts reveal a much greater set of circumstances
arising from the patient’s unexpected death, including external police and internal Symbral
investigations. Mr. Forkwa does not contest or even address these facts.
Mr. Forkwa has not provided evidence from which a jury could reasonably find
that Symbral’s proffered reasons for placing him on LWOP on June 6 and not reinstating him
until June 22 were mere pretexts to conceal sex discrimination. He and Ms. Mbanwi were
obvious subjects of investigation after the unexpected death, as the immediate caregivers to the
deceased resident, and Mr. Forkwa does not overcome Symbral’s legitimate nondiscriminatory
reason for the timing of his return to work. In the face of the uncontested facts in the record, the
barren statement that Mr. Glay “sympathizes with women” does not carry the weight Mr. Forkwa
would give it.
Finally, Mr. Forkwa challenges the disciplinary notice he received on June 22,
although he appears to limit his argument to the fact that it was issued to him later than Symbral
policies allowed. See Opp’n at 18. The evidence shows that Ms. Mbanwi’s and Mr. Forkwa’s
disciplinary notices have the same date and that each was delivered on that date. See Mbanwi
Disciplinary Notice [Dkt. 17-5]; Forkwa Disciplinary Notice [Dkt. 18-4]. There is no evidence
to support the allegation that any delay in issuing Mr. Forkwa’s disciplinary notice was due to
sex discrimination, rather than the ongoing investigations. The notice itself listed non-
discriminatory, work-related reasons for his suspension. Responding to the discipline notice in
his written statement, Mr. Forkwa said only that he “disagreed.” Mr. Forkwa’s disagreement
with Symbral’s reasons for discipline does not connect his suspension to his sex, particularly
16
since Ms. Mbanwi suffered discharge. An employer may err when it disciplines an employee,
but an error, without more, does not constitute discrimination. See Diggs v. Potter, 700 F. Supp.
2d 20, 48-49 (D.D.C. 2010) (“The question is never whether the employer was mistaken, cruel,
unethical, out of his head, or downright irrational in taking the action for the stated reason, but
simply whether the stated reason was his reason: not a good reason, but the true reason.”).
Mr. Forkwa has failed to provide evidentiary support for his allegation that he was
disciplined on June 22 due to sex discrimination and not due to Symbral’s belief that he had
violated specified requirements of his job. The Court will grant summary judgment to Symbral
on Count I.8
C. Retaliation Under Title VII
To prove retaliation for protected EEO activities under Title VII, an employee
must establish three elements: that (1) he made a charge or opposed a practice made unlawful by
Title VII; (2) the employer took a materially adverse action against him; and (3) the employer
acted “because of” his protected conduct. Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)
(citing McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012)). Once a plaintiff shows a
prima facie case of retaliation, the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its action. McDonnell Douglas Corp., 411 U.S. at 802; see Allen v.
Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (“A Title VII plaintiff [asserting unlawful retaliation]
8
The Court notes that Mr. Forkwa did not charge Symbral with retaliation in connection with the
June events in his original EEOC administrative complaint. See Forkwa Charge of
Discrimination [Dkt. 17-12]. Even if such an allegation were to be considered, it is without
merit. The claim in Mr. Forkwa’s Opposition that he was retaliated against in June, either when
he was placed or left on LWOP or when he was disciplined, Opp’n at 12, fails to overcome
Symbral’s legitimate non-discriminatory reasons for its actions due to a complete lack of
evidence (by direct evidence or inference) that would tie any of the acts to retaliatory animus.
17
may raise a preliminary, circumstantial inference of prohibited motive through the burden-
shifting framework of McDonnell Douglas Corp.”).
Retaliatory conduct need not reach the same level of adversity as discriminatory
conduct to be actionable. See Mogenhan v. Napolitano, 613 F.3d 1162, 1165-66 (D.C. Cir.
2010) (citing Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 60-61 (2006)). “Title
VII’s substantive [discrimination] provision and its anti-retaliation provision are not
coterminous” because the “scope of the anti-retaliation provision extends beyond workplace-
related or employment-related retaliatory acts and harm.” Steele v. Schafer, 535 F.3d 689, 695
(D.C. Cir. 2008) (quoting Burlington N., 548 U.S. at 67). Retaliatory conduct must be material
enough to “dissuade . . . a reasonable worker from making or supporting a charge of
discrimination.” Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68).
However, material adversity requires “more than ‘those petty slights or minor annoyances that
often take place at work and that all employees experience,’” because the EEO statutes are not
general laws of civil behavior in the workplace. Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.
Cir. 2013) (quoting Burlington N., 548 U.S. at 68).
Additionally in contrast to discrimination claims, an employee must prove a
retaliation claim according to traditional principles of but-for causation. Univ. of Tex. SW Med.
Ctr., 133 S. Ct. at 2534 (holding that “a plaintiff making a retaliation claim . . . must establish
that his or her protected activity was a but-for cause of the alleged adverse action by the
employer”). There is no “mixed-motive” retaliation.
D. Mr. Forkwa’s Retaliation Claims
Mr. Forkwa asserts that he was subject to retaliation in October 2011 due to his
complaint of sex discrimination. He contends that Mr. Larose retaliated against him by
18
effectively terminating him on October 28, 2011 after Mr. Forkwa was thought to have left a
mandatory training session early. Opp’n at 23. Mr. Forkwa’s theory is that, after the events of
June 2011, Mr. Larose and Mr. Glay harbored a “desire to ‘get back at’ Forkwa for his exercise
of a protected right,” and therefore, “[i]n order to just terminate [Mr. Forkwa], Larose introduced
. . . the subsequent theory that Forkwa left the training early.” Id. As this argument goes, Mr.
Larose and Mr. Glay “apparently sought to get back at” Mr. Forkwa, and so concocted a spurious
story that Mr. Forkwa had left training early in order to fire him, all in retaliation for his sex
discrimination complaints four months earlier. Id. Mr. Forkwa contends that Mr. Larose
“effectively” terminated him and Mr. Muhammed merely “confirmed” the termination. Id. He
argues that Symbral’s explanation that Mr. Mohammed sustained Mr. Forkwa’s discharge
because Mr. Mohammed had learned that Mr. Forkwa failed to show up for training at Harmony
House “is unfounded or untrue because Forkwa had already been terminated before any
purported transfer by Symbral.” Id.
The Court begins its analysis with the allegation that Messrs. Larose and Glay
“introduced” a story that Mr. Forkwa left the training session early in October in order to
manufacture a reason to terminate him for his June complaints of sex discrimination. Id. The
events surrounding the training occurred in October 2011, approximately four months after Mr.
Forkwa’s June 2011 EEO complaints. “When relying on temporal proximity alone to
demonstrate causation, there is no bright-line rule, although three months is perceived as
approaching the outer limit.” Greer v. Bd. of Trs. of the Univ. of the District of Columbia, 113 F.
Supp. 3d 297, 311 (D.D.C. 2015). A four-month gap between complaint and alleged retaliation
is usually too lengthy to infer causation between the two, especially when there is no intervening
evidence of illegal intention. Obviously, causation may be proved with evidence beyond mere
19
temporal proximity, see Kilpatrick v. Riley, 98 F. Supp. 2d 9, 23 n.19 (D.D.C. 2000), but there is
no such evidence here and Mr. Forkwa relies only on a temporal inference of causation, which is
too weak as a matter of law to prove that October events were caused by those in June.
The evidence also shows that Mr. Forkwa was disciplined in July 2011; he
received a written warning for failure to complete his time sheets. See Opp’n Ex. 4, Forkwa
Disciplinary Notice [Dkt. 18-4] at 3. If his supervisors wanted to retaliate for Mr. Forkwa’s
protected conduct in June 2011, this July discipline might have allowed it. The fact that no
termination occurred in July further weakens an inference of causation between the complaints in
June and the termination in October 2011.
In the alternative, Mr. Forkwa argues that he need show no connection between
June and October because he renewed his complaint of sex discrimination when meeting with
Mr. Larose on the day after the training session, at which meeting Mr. Larose instructed Mr.
Forkwa not to report for work. Forkwa Decl. ¶ 11. Although denied by Symbral, the Court
accepts that Mr. Forkwa made such a complaint, as is required in this procedural posture. See
Greene v. Dalton, 164 F.3d at 674 (“In deciding whether there is a genuine issue of fact before it,
the court must assume the truth of all statements proffered by the party opposing summary
judgment.”). Thus, the Court will credit Mr. Forkwa’s sworn statement that he complained of
sex discrimination at the meeting with Mr. Larose about the training session and finds that such a
complaint could have a causal connection to Mr. Forkwa’s discharge.
Symbral offers the legitimate non-discriminatory reason for discharge that Mr.
Forkwa was separated because he failed to report for training after his transfer to Harmony
House. Affidavits from Mr. Mohammed; Paula Freeman, Mr. Mohammed’s secretary; and Mr.
Forkwa attest that Mr. Forkwa was informed of his transfer, and received specific information
20
about the transfer after he called Ms. Freeman. The Symbral affidavits add that Mr. Forkwa
spoke with Mrs. Glay, who scheduled orientation for Mr. Forkwa but that he failed to appear
despite getting specific directions after he called about being lost. See Mohammed Decl. ¶¶ 6-7;
Freeman Decl. [Dkt. 17-11] ¶¶ 3-5; Edith Glay Decl. ¶¶ 4-8. Mr. Forkwa’s version of events is
that, despite calling her, he could not reach Ms. Glay for several days and, when he did, she told
him the job was filled by another employee. Forkwa Decl. ¶ 15.
Symbral employees clearly viewed Mr. Mohammad as the final decisionmaker on
personnel matters: Ms. Mbanwi appealed her termination by Mr. Larose and obtained
reinstatement by Mr. Mohammed; Mr. Forkwa himself appealed his October termination by Mr.
Larose and obtained a transfer to Harmony House from Mr. Mohammad; and, consistent with
this pattern, it was Mr. Mohammad who decided he could do nothing further once Ms. Glay
reported that Mr. Forkwa had failed to report for training. In all relevant instances, including Mr.
Forkwa’s transfer and subsequent separation, Mr. Mohammad made the final decision.
The parties vigorously contest when various Symbral employees learned of the
pending transfer from Mr. Mohammad and when Mr. Forkwa was himself informed.9 The Court
accepts Mr. Forkwa’s version of events as he is the non-movant. Nonetheless, it does not satisfy
his burden as plaintiff. The issue of whether Mr. Mohammad decided to transfer Mr. Forkwa
days before informing Mr. Forkwa, or whether Mr. Mohammad informed Mr. Larose or Mr.
Glay before Mr. Forkwa, or even whether Mr. Mohammad had spoken to Mr. Forkwa without
telling him that he intended to transfer Mr. Forkwa, is ultimately irrelevant. Employers are
9
In its Reply, Symbral moves to strike a portion of Mr. Forkwa’s sworn affidavit that he spoke
with Mr. Glay during this period on the grounds that it conflicts with his deposition testimony.
Mr. Forkwa admitted in deposition that his recollection of some of dates and times “may not be
accurate.” Forkwa Dep. 158:6-8. Because it is unnecessary to resolve the summary judgment
motion, the Court declines to strike this portion of Mr. Forkwa’s statement.
21
entitled to make legitimate employment decisions as they see fit as long as they do not
discriminate.
Notably, Mr. Forkwa does not allege that Mr. Mohammad retaliated against Mr.
Forkwa, or was otherwise driven by discriminatory animus towards Mr. Forkwa. In contrast,
Mr. Forkwa seems to have a high opinion of Mr. Mohammad, stating that:
[W]hen I found out [the position had been filled] I called Mr.
Mohammad and told him that the lady, Mrs. Glay, has said
somebody was already sent from the office. He told me that, Mr.
Mohammad told me that, well—and I believe him. It’s not as if I
doubted him. Because I had known him to be a pastor, you know?
. . . So I believe what he said, you see? Anything he said, I believe
it. It was not as if I doubted him. He told me, Well, there’s really—
just give me some time again and try to call again. Let me see what
is happening.
Forkwa Dep. 102:21-103:10.
With Mr. Forkwa’s commendation and lack of challenge to Mr. Mohammad, the
reason, the Court accepts Mr. Mohammad’s statement that he had heard from Ms. Glay that Mr.
Forkwa was a no-show at Harmony House, even though it does not credit, on summary
judgment, Ms. Glay’s similar, but contested, statement. By choosing to present his termination
as imposed by Mr. Larose and only confirmed by Mr. Mohammad, Mr. Forkwa avoids all
comment or argument concerning Mr. Mohammad’s role, including his agreement to reinstate
Mr. Forkwa to a new location. Critically, Mr. Forkwa also omits any challenge to or
commentary on Mr. Mohammad’s statement that he had heard from Ms. Glay that Mr. Forkwa
was a no-show. The uncontested evidence demonstrates that Mr. Mohammad decided to
terminate Mr. Forkwa following the alleged miscommunications concerning Mr. Forkwa’s
transfer to Harmony House and after he had spoken with Mr. Forkwa. Mr. Forkwa does not
22
allege that this decision by Mr. Mohammad was a pretext to hide retaliation10 or provide any
evidence that might support such an allegation.
Brady v. Office of the Sergeant at Arms is instructive in this situation. 520 F.3d
490. In Brady, the plaintiff was terminated by his employer’s final decisionmaker after that
decisionmaker received reports that the plaintiff had sexually harassed other employees. Id. at
494. The plaintiff argued that the accusers, all lower-level employees, had fabricated the
accusations with racist motivations. Id. at 495. The D.C. Circuit rejected the plaintiff’s
argument because the final decisionmaker had honestly believed that the allegations were
genuine. Id. “The question is not whether the underlying . . . incident occurred; rather, the issue
is whether the employer honestly and reasonably believed that the underlying . . . incident
occurred.” Id. at 496 (emphasis in original). “Although [the plaintiff] assert[ed] that the
accusations and ensuing investigation were racially tainted and the incident did not occur, he did
not produce evidence sufficient to show that the [employer’s] conclusion was dishonest or
unreasonable.” Id. As the D.C. Circuit writes:
Employers obviously have to resolve factual disagreements all the
time in order to make employment decisions regarding hiring,
promotion, discipline, demotion, firing, and the like. In many
situations, employers must decide disputes based on credibility
assessments, circumstantial evidence, and incomplete information.
But [plaintiff’s] argument would mean that every employee who is
disciplined, demoted, or fired for alleged misconduct could sue for
employment discrimination based on race, color, religion, sex, or
national origin and—merely by denying the underlying allegation of
misconduct—automatically obtain a jury trial. [The plaintiff] cites
no support for that proposition, which would wreak havoc on district
10
The parties’ arguments focus on Mr. Forkwa’s termination as sounding in retaliation, although
Mr. Forkwa’s Complaint also states that his “constructive discharge . . . was motivated in
substantial part by gender discrimination.” Compl. ¶ 15. Regardless of whether his termination
is characterized as sex discrimination or retaliation, Mr. Forkwa has failed to meet his burden on
under McDonnell Douglas by failing to provide evidence refuting Symbral’s legitimate, non-
discriminatory grounds for his termination, for the reasons described herein.
23
courts’ orderly resolution of employment discrimination cases and
improperly put employers in a damned-if-you-do, damned-if-you-
don't posture when addressing disciplinary issues in the workplace.
Id.
The unchallenged facts make several points clear, despite other contested matters:
(1) Mr. Mohammad had the final decision-making power concerning employment at Symbral,
including Mr. Forkwa’s job; (2) Mr. Mohammad made the decision to terminate Mr. Forkwa
following the alleged miscommunications involving Mr. Forkwa’s transfer to Harmony House;
and (3) Mr. Mohammad asserts without contradiction that he believed that Mr. Forkwa had failed
to show up for a work orientation at Harmony House. Without evidence to show that Mr.
Mohammad’s reason for his decision to terminate Mr. Forkwa was a pretext for retaliation, a
claim he does not make or prove, Mr. Forkwa cannot meet his burden under McDonnell
Douglas. Mr. Forkwa’s claim that Mr. Larose, not Mr. Mohammad, actually fired Mr. Forkwa,
is inconsistent with the uncontested facts and the employees’ history of appealing Mr. Larose’s
discharge decisions to Mr. Mohammed.
The parties disagree about a number of facts in this case and so the Court has
relied only on Mr. Forkwa’s statements and uncontested facts. It finds that Symbral is entitled to
summary judgment on Count II as a matter of uncontested facts and law.
CONCLUSION
For the reasons stated above, the Court will grant Symbral’s Motion for Summary
Judgment, entering judgment in Symbral’s favor on both counts. Both parties’ ancillary motions
will be denied. A memorializing order accompanies this Memorandum Opinion.
24
Date: March 12, 2018 /s/
ROSEMARY M. COLLYER
United States District Judge
25