Lane v. District of Columbia ( 2021 )


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  •                         UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    MICHAEL S. LANE,
    Plaintiff,
    v.
    Civ. Action No. 17-01484
    DISTRICT OF COLUMBIA,                        (EGS)
    Defendant.
    MEMORANDUM OPINION
    I.       Introduction
    Plaintiff Michael Lane (“Mr. Lane”) brings this action
    against Defendant the District of Columbia (“the District”)
    alleging: (1) age discrimination 1 in violation of the Age
    Discrimination in Employment Act of 1997, (“ADEA”), 19 U.S.C.
    § 623(a) et seq., and the District of Columbia Human Rights Act
    (“DCHRA”), D.C. Code § 2-1402.01, et seq.; (2) retaliation for
    complaining about the discrimination when he was terminated in
    violation of the ADEA and DCHRA as well as 42 U.S.C. §§ 1981 and
    1983; and (3) Misuse and Diversion of Government Funds. See
    generally, Am. Compl., ECF No. 1-1.
    Pending before the Court is the District’s Motion for
    Summary Judgment. See Def.’s Mot., ECF No. 22. The Court has
    1 Mr. Lane withdrew his discrimination and retaliation claims
    based on race. See Pl.’s Opp’n, ECF No. 26 n.1.
    carefully considered the motion, the response and reply thereto,
    the applicable law, and the entire record herein. The Court
    GRANTS the District’s Motion for Summary Judgment. Additionally,
    the Court DISMISSES Mr. Lane’s claim of misuse and diversion of
    government funds.
    II.   Background
    A. Factual Background
    Except where indicated, the following material facts are
    not in dispute. At all relevant times, Mr. Lane was over 40
    years of age. 2 See Am. Compl., ECF No. 1-1 ¶ 7. In 2003, Mr. Lane
    was hired by the District of Columbia Public Schools (DCPS) as
    an Architect on the Education Service System (EG) pay scale at a
    Grade 13, Step 10. Pl.’s Summary and Response to Def.’s
    Statement of Undisputed Facts (“SOF”), ECF No. 26-1 ¶ 1. Mr.
    Lane’s position was subsequently transferred from DCPS to the
    Office of Public Education Facilities Management (“OPEFM”) 3 and
    he remained on the EG pay scale. Id. ¶¶ 2, 3.
    Thereafter, effective October 1, 2011, Mr. Lane’s position
    was transferred from OPEFM to the Department of General Services
    2 When citing electronic filings throughout this Opinion, the
    Court cites to the ECF page number, not the page number of the
    filed document with the exception of deposition testimony, which
    is to the page number of the deposition transcript.
    3  Mr. Lane disputes this, but what he states that he remained on
    the DCPS payroll and pay scale and his position continued to be
    funded by the DCPS budget. SOF, ECF No. 26-1 ¶ 2. Accordingly,
    it is undisputed that Mr. Lane was transferred to OPEFM.
    2
    (“DGS”), a newly created agency. See Agency Response to EEOC
    Charge (“Agency Response”), ECF No. 22-5 at 2. 4 At DGS, Mr. Lane
    was assigned to the DGS Capital Construction Division (“CCD”).
    SOF, ECF No. 26-1 ¶ 5. When he was transferred to DGS, there was
    no change in his pay, grade, title, and series. Id. ¶ 6.
    Mr. Lane was a member of a collective bargaining unit,
    represented by the Teamsters, and the compensation of the unit
    was based on the EG pay scale. 5 See Agency Response, ECF No. 22-5
    at 6. Mr. Lane’s membership in this unit restricted DGS’s
    4 Mr. Lane disputes this, but what he states is that his
    “function and job title were transferred to DGC, but Plaintiff
    and his colleagues remained on an inactive DCPS EG pay scale,
    while their colleagues in DGS were paid on the [Career Services
    (“CS”)] pay scale.” Id. That Mr. Lane remained on the EG pay
    scale is undisputed. Owens Dep., ECF No. 26-3 at 17:16-18
    (“Employees who came from OPEFM and DCPS were on the EG pay
    scale.”).
    5 Mr. Lane disputes this, pointing to his deposition testimony
    where he stated that from 2008 to 2011, while he was at OPEFM,
    he did not receive any cost of living adjustments. Lane Dep.,
    ECF No. 26-2 at 63:5-13. He also points to the following
    evidence: (1) FY 2009-FY 2012 District of Columbia Salary
    Schedule for Comp Unit Exhibit 4, ECF No. 26-6 at 4-14; (2) FY
    2008 – OPEM Budget v. Expenditures, Exhibit 5, ECF No. 26-6 at
    21-26; (3) Mr. Lane’s April 18, 2014 pay stub, Exhibit 6, ECF
    No. 26-6 at 28; (4) FY 2006, 2008, DCPS Non Union Educational
    Service Employees pay scale steps, Exhibit 7, ECF No. 26-6 at
    30-31; (5) An Addendum directing DCHR to place certain
    bargaining unit employees on appropriate compensation units
    beginning October 5, 2014, Exhibit 20, ECF No. 26-9 at 13-15;
    and (6) A list of Capital Construction Division Vacancies from
    10/1/2011-09/30/2014, Exhibit 21, ECF No. 26-9 at 18. This
    evidence does not rebut the fact that compensation for the
    bargaining unit in which Mr. Lane was a member was based on the
    EG pay scale.
    3
    ability to change his salary or position. 6 See id. On February
    20, 2014, the Teamsters notified OPEFM that it disclaimed any
    interest in representing the collective bargaining unit. See
    Letter from Warehouse Employees Union to Dean Aqui, Office of
    Public Education Facilities Management (“Teamster Letter”) (Feb.
    20, 2014), ECF No. 22-6 at 1. As a result of this disclaimer,
    Mr. Lane’s compensation was exclusively governed by the District
    Personnel Manual, which requires a competitive process to move
    Mr. Lane to a new pay plan. 7 See Agency Response, ECF No. 22-5 at
    6.
    Effective January 2, 2014, DGS was approved for
    “realignment,” meaning that, with regard to Mr. Lane, his EG pay
    scale position would be abolished and he “would be allowed to
    move competitively to newly established other existing titles,
    series and grades” and would face no monetary loss. See
    Memorandum from DGS Interim Director to the City Administrator
    on the Request for Approval of Reduction-in-Force Within the
    Department of General Services (“RIF Memorandum”) (May 11,
    6 Mr. Lane disputes this, asserting that “new hires into the
    collective bargaining unit were not put on the same EG pay
    scale.” SOF, ECF No. 26-1 ¶ 9. However, the deposition
    transcript cite Mr. Lane relies on does not support his
    assertion. See Owens Dep., ECF No. 26-3 at 17.
    7 Mr. Lane disputes this, asserting that the provisions of
    Chapter 8 were generally applicable throughout his tenure. SOF,
    ECF No. 26-1 ¶ 13. However, Mr. Lane’s position is consistent
    with his compensation being “exclusively” governed by the manual
    following the Union’s disclaimer.
    4
    2015), ECF No. 22-8 at 1. Mr. Lane disputes that a realignment
    occurred. SOF, ECF No. 26-1 ¶ 10.
    DGS did not have the regulatory authority to move Mr. Lane
    to the CS pay scale other than through a competitive process.
    See Agency Response, ECF No. 22-5 at 6. Accordingly, “DGS
    identified comparable positions in the new proposed structure
    which would ensure that the impacted employees would not lose
    jobs or face a salary loss in a realignment” and “proposed to
    permit the impacted employees to move competitively to the newly
    established or other exiting titles, series and grades in the
    realigned DGS.” Agency Response, ECF No. 22-5 at 3. Mr. Lane
    disputes that a competitive process was required. SOF, ECF No.
    26-1 ¶ 14. Mr. Lane also disputes that the jobs were comparable
    because they consisted of “the same work but at a demoted
    position and a depressed wage rate.” SOF, ECF No. 26-1 ¶ 15.
    When the realignment began, 34 employees were still on the
    EG pay scale. See RIF Memorandum, ECF No. 22-8 at 2.
    In 2014, Mr. Lane applied for a CS 13 Architect Position and he
    was selected for the position. See Lane Dep., ECF No. 22-4 at
    79:4-5. Mr. Lane declined the position because it was at a step
    two whereas his EG position was at a step 10. See id. at 87:5-8.
    The CS 13 step two position had a higher salary than Mr. Lane’s
    EG 13 step 10 position. See id. at 87:17-22. While employed at
    DGS, Mr. Lane was eligible to apply for 11 positions at the CS
    5
    13 through CS 15 level. 8 See SOF, ECF No. 26-1 ¶ 19. Mr. Lane did
    not apply for any of these positions. See id. ¶ 26. 9 “Of the
    eleven new hires[,] eight were over the age of forty (40), and
    ranged in age from 40 to 56 years old.” 10 See Agency Response,
    ECF No. 22-5 at 6. They “were given salaries commensurate with
    their depth and quality of directly related experience,
    education, certifications and prior salary.” Id. at 6.
    As of May 11, 2015, DGS realigned all but seven employees
    from the EG pay plan to the CS pay plan. See RIF Memorandum, ECF
    No. 22-8 at 2. Mr. Lane asserts that in 2014, the ages of the
    seven employees ranged from 47 to 68. Pl.’s Opp’n, ECF No. 26 at
    16. In seeking approval for a RIF to abolish these seven
    positions, DGS stated:
    Although positions have been identified for
    these EG employees, they have either not
    applied for an available position or have
    applied and been selected for a position, but
    refused to accept the salary and position
    offered. Despite our repeated discussions with
    these employees to address and resolve an
    remaining issues, the employees have chosen to
    8  Mr. Lane disputes this, asserting that accepting such a
    position would mean a demotion and forgone compensation. SOF,
    ECF No. 26-1 ¶ 20. This, however, does not rebut the factual
    statement.
    9 Mr. Lane disputes this, pointing to his 2014 application. SOF,
    ECF No. 26-1 ¶ 26. That he applied for a position in 2014 does
    not rebut the factual statement.
    10
    The District also states that the persons selected for these
    positions ranged in age from 41 to 81 years of age. See Agency
    Response, ECF No. 22-5 at 5. Mr. Lane did not provide any
    evidence showing the ages of the persons selected. See generally
    SOF, ECF No. 26-1.
    6
    maintain their status as EG employees. Their
    actions have effectively stymied DGS’ ability
    to   bring   closure   to   our   realignment
    implementation activities.
    RIF Memorandum, ECF No. 22-8 at 2.
    On June 1, 2015, Mr. Lane was informed that his separation
    from District government service would be effective July 2,
    2015. See Letter from DGS to Michael Lane (“Separation Letter”)
    (June 1, 2015), ECF No. 22-9 at 1. The letter further informed
    him that he “ha[d] a right to priority placement consideration
    through the Agency Reemployment Priority Program” (“ARPP”). Id.
    at 2.
    On June 17, 2015, Mr. Lane was informed that he had been
    selected for a Project Manager position at CS 13, step 1, at an
    annual salary of $76,397, a higher salary than Mr. Lane had been
    earning, and that the effective start date of his appointment
    was June 28, 2015. See Letter from DGS to Michael Lane (“Offer
    Letter”) (June 17, 2015), ECF No. 22-10 at 1; see also SOF, ECF
    No. 26-1 ¶ 33. The offer letter explains that:
    This offer of employment is being extended to
    you under the Agency Reemployment Priority
    Program (ARPP) that has been established in
    the Department of General Services. The ARPP
    provides assistance to employees who will or
    have been affected by a reduction-in-force
    (RIF). The ARPP provides employees or former
    employees separated in tenure groups I and
    groups   II    with   reemployment    priority
    consideration for vacancies within the agency,
    as provided in Chapter 24 of the regulations.
    Employees are automatically entered on the
    7
    reemployment priority list immediately after
    it has been determined that the employee is to
    be adversely affected by a reduction-in-force
    and not later than the issuance of the notice
    of reduction-in-force.
    Offer Letter, ECF No. 22-10 at 1. Mr. Lane did not accept this
    position. See SOF, ECF No. 26-1 ¶ 34.
    B. Procedural History
    Following the District’s removal of this case from the
    Superior Court of the District of Columbia, the Complaint was
    filed in this Court on July 25, 2017. See Am. Compl., ECF No. 1-
    1. The District filed its Motion for Summary Judgment on
    November 25, 2019. See Def.’s Mot., ECF No. 22. Mr. Lane filed
    his Opposition Response on February 19, 2020, see Pl.’s Opp’n,
    ECF No. 26; and the District filed its Reply on March 16, 2020.
    See Def.’s Reply, ECF No. 27. The motion is ripe and ready for
    the Court’s adjudication.
    III. Legal Standard
    Pursuant to Federal Rule of Civil Procedure 56, summary
    judgment should 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)
    Waterhouse v. District of Columbia, 
    298 F.3d 989
    , 991 (D.C. Cir.
    2002). The moving party must identify “those portions of the
    pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, which
    8
    it believes demonstrate the absence of a genuine issue of
    material fact.” Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323
    (1986) (internal quotation marks omitted). To defeat summary
    judgment, the nonmoving party must demonstrate that there is a
    genuine issue of material fact. 
    Id. at 324
    . A material fact is
    one that is capable of affecting the outcome of the
    litigation. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248
    (1986). Mere conclusory allegations with no factual basis are
    not sufficient to overcome a motion for summary judgment. Diaz
    v. Washington Metro. Area Transit Auth., 
    243 F. Supp. 3d 86
    , 88
    (D.D.C. 2017) (quoting Ass’n of Flight Attendants-CWA, AFL-CIO
    v. United States Dep’t of Transp., 
    564 F.3d 462
    , 465 (D.C. Cir.
    2009)). A genuine dispute is one where “the evidence is such
    that a reasonable jury could return a verdict for the nonmoving
    party.” 
    Id.
     Further, in the summary judgment analysis “[t]he
    evidence of the non-movant is to be believed, and all
    justifiable inferences are to be drawn in his favor.” 
    Id. at 255
    .
    IV.    Analysis
    A. Mr. Lane’s Discrimination Claims Arising Out of the
    Failure to Convert His Position From the EG Pay Scale to
    the CS Pay Scale and Associated Loss of Compensation Are
    Time Barred
    The District argues that Mr. Lane’s claims regarding the
    District’s failure to convert his position from the EG pay scale
    9
    to the CS pay scale when he was transferred from OPEFM to DGS on
    October 1, 2011 are time barred because he did not file a claim
    with the EEOC until 2016. See Def.’s Mot., ECF No. 22 at 12. Mr.
    Lane contends that the “seminal” discriminatory act occurred in
    2007, when he was transferred from DCPS to OPEFM, but was not
    moved to the CS pay scale, and that his claims are not time
    barred because the Lilly Ledbetter Fair Pay Act applies to his
    claims. See Pl.’s Opp’n, ECF No. 26 at 26.
    An employee must first exhaust administrative remedies with
    the EEOC within 180 days of the unlawful employment practice,
    but if the plaintiff has first instituted proceedings with a
    state or local agency, the period is extended to 300 days.
    Cooper v. Henderson, 
    174 F. Supp. 3d 193
    , 202 (D.D.C. 2018)
    (Sullivan, J.). A discrete retaliatory or discriminatory act
    occurs on the day it happened, and each discrete act starts a
    new clock. National R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
    , 110, 113 (2002). The Lilly Ledbetter Fair Pay Act allows
    for the statute of limitations to reset with each paycheck that
    is the result of a discriminatory compensation decision, thereby
    extending the amount of time in which the plaintiff can file a
    complaint. See 42 U.S.C. § 2000e-5(e)(3)(A). For the Lilly
    Ledbetter Fair Pay Act to apply, Mr. Lane “must bring a claim
    involving discrimination in compensation and point to a
    discriminatory compensation decision or other practice.” Schuler
    10
    v. PricewaterhouseCoopers, LLP, 
    595 F. 3d 370
    , 374 (D.C. Cir.
    2010) (internal quotation marks omitted). “Discrimination in
    compensation means paying different wages or providing different
    benefits to similarly situated employees.” 
    Id.
     (internal
    quotation marks omitted).
    With regard to Mr. Lane’s transfer from DCPS to OPEFM in
    2007, it is undisputed that similarly situated employees—the
    DCPS CCD employees who were transferred from DCPS to OPEFM—were
    not converted to the CS pay scale. Lane Dep., ECF No. 26-2 at
    57-59. Following the transfer, the Teamsters began negotiations
    regarding converting the CCD employees to the CS pay scale. See
    
    id. at 53-54
    . On October 1, 2011, Mr. Lane and other CCD
    employees were transferred from OPEFM to DGS. See SOF, ECF No.
    26-1 ¶ 4. In February 2014, the Teamsters disclaimed any further
    interest in representing this group of employees. See Teamsters
    Letter, ECF No. 22-6 at 1. In January 2014, DGS initiated a
    realignment to address, among other things, the 34 DGS employees
    still on the EG pay scale. See RIF Memorandum, ECF No. 26-9 at
    2. As of May 11, 2015, all but seven employees had been moved
    from the EG pay scale to the CS pay scale. See 
    id.
    The undisputed facts show that the failure to automatically
    convert Mr. Lane from the EG pay scale to the CS pay scale did
    not constitute “discrimination in compensation” because Mr. Lane
    was not paid different wages from similarly situated employees,
    11
    specifically, the DCPS CCD employees who were transferred from
    DCPS to OPEFM, and then from OPEFM to DGS, and were not
    converted to the CS pay scale. See Schuler, 
    595 F. 3d at 374
    (D.C. Cir. 2010). The Lilly Ledbetter Fair Pay Act therefore
    does not apply.
    The discriminatory acts—the failure to convert Mr. Lane
    from the EG pay scale to the CS pay scale in 2007 and in 2011—
    occurred on the date of the transfer from DCPS to OPEFM and then
    on the date of the transfer from OPEFM to DGS respectively. Mr.
    Lane states that he contacted the Equal Employment Opportunity
    Commission (“EEOC”) on or about January 29, 2016 and
    subsequently filed a claim of discrimination, which was cross-
    filed with the District of Columbia Office of Human Rights
    (“DCOHR”). Am. Compl., ECF No. 1-1 ¶ 5. Since the allegedly
    discriminatory acts occurred in 2007 and 2011, but Mr. Lane did
    not file a claim with the EEOC or with DCOHR until years later,
    Mr. Lane’s discrimination claims based on the failure to convert
    his position from the EG pay scale to the CS pay scale and
    associated loss of compensation are time barred.
    12
    B. Mr. Lane Has Failed to Produce Sufficient Evidence From
    Which a Reasonable Jury Could Find that the District’s
    Stated Reasons For Allegedly Demoting Him and Then
    Terminating Him Were Pretext for Discrimination Based on
    Age
    1. Legal Standards
    Under the ADEA, it is unlawful for an employer to:
    (1) to fail or refuse to hire or to discharge
    any individual or otherwise discriminate
    against any individual with respect to his
    compensation, terms, conditions, or privileges
    of employment, because of such individual’s
    age; (2) to limit, segregate, or classify his
    employees in any way which would deprive or
    tend to deprive any individual of employment
    opportunities or otherwise adversely affect
    his status as an employee, because of such
    individual’s age; or (3) to reduce the wage
    rate of any employee in order to comply with
    this chapter.
    29 U.S.C. § 623(a)(1)-(3).
    The DCHRA prohibits certain discriminatory practices “[b]y
    an employer,” making it unlawful for an employer to “fail or
    refuse to hire, or to discharge, any individual; or otherwise
    discriminate against any individual, with respect to his
    compensation, terms, conditions, or privileges of employment”
    based upon several protected categories including the person’s
    age. D.C. Code § 2–1402.11(a)(1). When construing provisions of
    the D.C. Code—including the DCHRA—this Circuit “defer[s] to the
    District of Columbia Court of Appeals on questions of statutory
    interpretation.” United States v. Edmond, 
    924 F.2d 261
    , 264
    (D.C.Cir. 1991). District of Columbia courts look to cases
    13
    construing Title VII in construing the DCHRA, see Arthur Young &
    Co. v. Sutherland, 
    631 A.2d 354
    , 361 n.17 (D.C.1993); as ‘[t]he
    anti-discrimination provisions of both statutes are
    substantially similar, 
    id.
     (citation omitted). Accordingly, the
    McDonnell-Douglas burden-shifting framework governs the
    analysis. Cain v. Reinoso, 
    43 A.3d 302
    , 306 (D.C. 2012).
    To establish a prima facie case of discrimination, the
    plaintiff must show: “(1) she is a member of a protected class;
    (2) she suffered an adverse employment action; and (3) the
    circumstances gave rise to an inference of discrimination.”
    Stella v. Mineta, 
    284 F.3d 135
    , 144 (D.C. Cir. 2002), see also
    Kumar v. Dist’ of Columbia Water & Sewer Auth., 
    25 A.3d 9
    , 17
    (D.C. 2011) (same).
    Discrimination and retaliation claims are subject to the
    burden-shifting framework set forth in McDonnell Douglas Corp.
    v. Green, 
    411 U.S. 792
    , 802–05 (1973). The Court of Appeals for
    the District of Columbia Circuit has instructed that if a
    plaintiff establishes a prima facie case,
    the burden shifts to the employer to identify
    the legitimate, nondiscriminatory or non-
    retaliatory reason on which it relied in
    taking the complained-of action. Holcomb v.
    Powell, 
    433 F.3d 889
    , 896 (D.C. Cir. 2006).
    Assuming the employer proffers such a reason,
    the “central question” at summary judgment
    becomes   whether   “the   employee  produced
    sufficient evidence for a reasonable jury to
    find    that    the     employer's   asserted
    nondiscriminatory or nonretaliatory reason
    14
    was not the actual reason and that the
    employer   intentionally    discriminated   or
    retaliated against the employee.” Allen v.
    Johnson, 
    795 F.3d 34
    , 39, No. 13–5170, 
    2015 WL 4489510
    , at *3 (D.C. Cir. July 24, 2015)
    (brackets omitted) (quoting Brady, 520 F.3d at
    494); see also Hamilton, 666 F.3d at 1351.
    A plaintiff may support an inference that
    the employer's stated reasons were pretextual,
    and   the   real   reasons   were   prohibited
    discrimination or retaliation, by citing the
    employer's better treatment of similarly
    situated employees outside the plaintiff's
    protected group, its inconsistent or dishonest
    explanations, its deviation from established
    procedures or criteria, or the employer's
    pattern of poor treatment of other employees
    in the same protected group as the plaintiff,
    or other relevant evidence that a jury could
    reasonably conclude evinces an illicit motive.
    Walker v. Johnson, 
    798 F.3d 1085
    , 1091 (D.C. Cir. 2015). The
    Court may not “second-guess an employer’s personnel decision
    absent demonstrably discriminatory motive.” Fischbach v.
    District of Columbia Dep’t of Corr., 
    86 F.3d 1180
    , 1183 (D.C.
    Cir. 1996) (internal quotation marks and citation omitted).
    “Once the employer has articulated a non-discriminatory
    explanation for its action, as did the [employer] here, the
    issue is not the correctness or desirability of [the] reasons
    offered . . . [but] whether the employer honestly believes the
    reasons it offers.” 
    Id.
     An inference of pretext could be
    appropriate where “the employer made an error too obvious to be
    unintentional” because in such a situation, “perhaps [the
    employer] had an unlawful motive for doing so.” 
    Id. 15 2
    . Analysis
    Mr. Lane claims that he was discriminated against based on
    his age when he was allegedly demoted and then ultimately
    terminated. See Am. Compl., ECF No. 1-1 ¶ 58.
    The District asserts that its legitimate, non-
    discriminatory reason for eliminating Mr. Lane’s position
    through a RIF was because of adverse impact “the defunct EG pay
    scale was having on the agency’s realignment.” Def.’s Mot., ECF
    No. 22 at 2. “Being both reasonable and non-discriminatory,”
    Fischbach v. District of Columbia Dept. of Corrections, 
    86 F.3d 1180
    , 1182 (D.C. Cir. 1996); Mr. Lane must now “‘produce[]
    sufficient evidence for a reasonable jury to find that the
    employer's asserted nondiscriminatory [or nonretaliatory] reason
    was not the actual reason and that the employer intentionally
    discriminated [or retaliated] against the employee.’” Allen v.
    Johnson, 
    795 F.3d 34
    , 39 (D.C. Cir. 2015) (quoting Brady v.
    Office of Sergeant at Arms, 
    520 F.3d 490
    , 494 (D.C. Cir. 2008)).
    Mr. Lane asserts that after the Teamsters disavowed
    representation, seven employees remained on the EG pay scale,
    half of whom were over age 60. See Pl.’s Opp’n, ECF No. 26 at
    16. Mr. Lane argues that the there was no requirement for
    competitive bidding to transfer employees to the CS pay scale.
    See SOF, ECF No. 26-1 ¶ 14. To support his argument, Mr. Lane
    makes a number of assertions and points to evidence he contends
    16
    supports his position. First, Mr. Lane asserts that many
    employees were transferred without competitive bidding. 
    Id. at 17
    . However, the evidence he points to—the deposition of Latrena
    Owens, who was certified as the Rule 30(b)(6) deponent to speak
    on behalf of the District—does not support his assertion. See
    Owens Dep., ECF No. 26-3 at 7:3-10. Rather, Ms. Owens quoted the
    language in the RIF Memorandum stating that all but seven of the
    34 employees transferred from OPEFM to DGS were transitioned to
    CS positions in the realignment. See Owens Dep., ECF No. 26-3 at
    28:16-19. Second, Mr. Lane points to his own deposition
    testimony. See Lane Dep., ECF No. 26-2 at 105. The cite does not
    support this assertion, but even if it did, his own self-serving
    assertions do not give rise to a triable issue of fact. Toomer
    v. Mattis, 
    266 F. Supp. 2d 184
    , 200 (D.D.C. 2017) (Sullivan,
    J.). Third, Mr. Lane points to an October 8, 2013 DGS
    realignment request. See Memorandum From DGS Director to City
    Administrator, Request for Approval of Realignment within the
    Department of General Services, (Oct. 8, 2013), ECF No. 26-8 at
    20. However, the Memorandum states the opposite of what Mr. Lane
    contends: “[i]n order to appropriately place the EG employees
    within the career service, employees will be selected for
    positions in the new structure through competitive means.” 
    Id.
    Fourth, Mr. Lane points to the October 1, 2008 through September
    2012 Teamsters Collective Bargaining Proposal which, among other
    17
    things, proposed the promotion of EG professionals to CS
    positions at current grade and step effective FY 2009. See Union
    Proposal for a Collective Bargaining Agreement, ECF No. 26-6 at
    57. However, Mr. Lane does not point to any evidence indicating
    that this proposal was adopted. Finally, Mr. Lane argues that
    the District was wrong to interpret the applicable regulations
    to require competitive bidding to move the EG pay scale
    employees to the CS pay scale. See Pl.’s Opp’n, ECF No. 26 at
    17-18.
    Mr. Lane has provided no evidence that calls into question
    that the District honestly believed that it needed to eliminate
    the EG pay scale positions so that it could complete its
    realignment and that employees could only be moved from the EG
    pay scale to the CS pay scale through a competitive process. See
    Fischbach, 
    86 F.3d at 1183
    . None of the evidence he points to
    supports his assertion that a competitive process was not
    required to transfer from the EG pay scale to the CS pay scale.
    And his opinion that the District was wrong in how it
    interpreted the applicable regulations does not call into
    questions that the District honestly believed what the
    regulations required.
    18
    Mr. Lane would have the Court infer discriminatory intent
    because the District “articulate[d] no legitimate reason to
    demote and remove ranking steps from Mr. Lane related to his job
    skills or performance” because the EG pay scale and CS pay scale
    job descriptions are nearly identical. Pl.’s Opp’n, ECF No. 26
    at 19. Even if the job descriptions are nearly identical, it is
    undisputed that DGS needed to move the remaining employees from
    a defunct pay scale to the CS pay scale. While it is undisputed
    that CS pay scale position was at a lower grade but higher
    salary than the EG pay scale position, Mr. Lane has provided no
    support for his position that a lower grade on a different pay
    scale at a higher salary constitutes a demotion.
    Further evidence of discriminatory intent, according to Mr.
    Lane, is that new hires on the CS pay scale “were given market-
    rate salaries while the same was denied to [him] and his
    colleagues. They were also given COLA increases and promotion
    opportunities that were denied to [him].” SOF, ECF No. 26-1 ¶
    25. Mr. Lane also contends that the new hires had less
    experience and were younger than him; some of whom earned more
    money than he did. See Pl.’s Opp’n, ECF No. 26 at 20 (citing
    Exhibits 20, 21, 22). However, Mr. Lane has provided no evidence
    to support these assertions. Exhibit 20 is an Addendum directing
    DCHR to place certain bargaining unit employees on appropriate
    compensation units beginning October 5, 2014. The Addendum
    19
    provides the name and position of a list of employees, indicates
    their grade, step and salary, with a hand-written notation of
    “New Hire” next to some employees. See Exhibit 20, ECF No. 26-9
    at 13-15. Exhibit 21 is a list of CCD Vacancies from 10/1/2011-
    09/30/2014. See Exhibit 21, ECF No. 26-9 at 18. Exhibit 22 is a
    June 13, 2013 “Frequently Asked Questions” regarding Pay
    Increase for District Government Employees. See Exhibit 22, ECF
    No. 26-9 at 20-22. None of this evidence supports Mr. Lane’s
    assertions that the new hires on the CS pay scale were given
    market rate salaries that were denied to him and that they had
    less experience and were younger than Mr. Lane. Furthermore, it
    is undisputed that the CS pay scale positions Mr. Lane was
    offered were at a higher salary than his EG pay scale position.
    Mr. Lane has failed to present evidence from which “a
    reasonable jury could not only disbelieve the employer's
    reasons, but conclude that the real reason the employer took a
    challenged action was a prohibited one.” Walker, 798 F.3d at
    1093. Accordingly, the District’s Motion for Summary Judgment as
    to Mr. Lane’s discrimination claim is GRANTED.
    20
    C. Mr. Lane has Failed to Produce Sufficient Evidence From
    Which a Reasonable Jury Could Find that the District’s
    Stated Reasons for Terminating Him Were Pretext for
    Retaliation For Having Engaged in Protected Activity
    1. Legal Standards
    “To prove retaliation [under the ADEA], the plaintiff
    generally must establish that he or she suffered (i) a
    materially adverse action (ii) because he or she had brought or
    threatened to bring a discrimination claim.” Baloch v.
    Kempthorne, 
    550 F.3d 1191
    , 1198 (D.C. Cir. 2008). “Under the
    DCHRA, it an unlawful discriminatory practice for an employer to
    retaliate against a person on account of that person’s
    opposition to any practice made unlawful by the DCHRA.” Howard
    University v. Green, 
    652 A.2d 41
    , 45 (D.C. 1994). Consistent
    with the McDonnell-Douglas burden-shifting framework, once the
    defendant “assert[s] legitimate, nondiscriminatory reasons for
    [its actions],” the plaintiff must “produce sufficient evidence
    that would discredit those reasons and show that the actions
    were retaliatory.” Baloch, 
    550 F.3d at 1200
     (citations omitted.)
    As with a discrimination claim, the Court may not “second-
    guess an employer’s personnel decision absent demonstrably
    discriminatory motive.” Fischbach v. District of Columbia Dep’t
    of Corr., 
    86 F.3d 1180
    , 1183 (D.C. Cir. 1996) (internal
    quotation marks and citation omitted). “Once the employer has
    articulated a non-discriminatory explanation for its action, as
    21
    did the [employer] here, the issue is not the correctness or
    desirability of [the] reasons offered . . . [but] whether the
    employer honestly believes the reasons it offers.” 
    Id.
     An
    inference of pretext could be appropriate where “the employer
    made an error too obvious to be unintentional” because in such a
    situation, “perhaps [the employer] had an unlawful motive for
    doing so.” 
    Id. 2
    . Analysis
    Mr. Lane alleges that he was retaliated against for having
    engaged in protected activity when his position was eliminated
    through an allegedly illegal RIF. See Am. Compl., ECF No. 1-1 ¶
    21. The District responds that it had a legitimate, non-
    retaliatory reason for the RIF. Def.’s Mot., ECF No. 22 at 20-
    21. Specifically, “having seven employees (including [Mr. Lane])
    remaining on the EG pay scale presented an impediment to DGS’s
    reorganization and realignment.” 
    Id. at 21
    . Accordingly, DGS
    proposed, and the City Administrator and Interim Director of
    Human Resources approved, a RIF to eliminate these positions. 11
    11While the District argues that Mr. Lane made not made out a
    prima facie case because he has not demonstrated that the
    persons who approved the RIF knew about his protected activity,
    see Def.’s Mot., ECF No. 22 at 20; whether or not he has made
    out a prima facie case is not relevant at this point because the
    District has “asserted a legitimate, non-discriminatory reason
    for” terminating Mr. Lane. Accordingly, the Court need not
    examine whether Mr. Lane made out a prima facie case of
    retaliation as it is “no longer relevant.” Brady v. Office of
    Sergeant at Arms, 
    520 F.3d 490
    , 493 (D.C. Cir. 2008).
    22
    “Being both reasonable and non-discriminatory,” Fischbach v.
    District of Columbia Dept. of Corrections, 
    86 F.3d 1180
    , 1182
    (D.C. Cir. 1996); Mr. Lane must now “‘produce[] sufficient
    evidence for a reasonable jury to find that the employer's
    asserted nondiscriminatory or nonretaliatory reason was not the
    actual reason and that the employer intentionally discriminated
    or retaliated against the employee.’” Allen, 795 F.3d at 39.
    Mr. Lane argues that the RIF eliminating the positions was
    a “ruse” because “[t]he work did not go away. Rather[,] the
    employees were notified of termination . . . and then notified
    of being offered a new lower level position on the CS pay
    scale.” Pl.’s Opp’n, ECF No. 26 at 24. He also claims that
    “neither [he], nor any of his colleagues actually ‘competitively
    bid’ for the positions they were offered on rehire,” and that
    this demonstrates that if the District could terminate him and
    then offer him a CS pay scale position, as occurred here, “it
    always had the ability to do so.” Id.
    In support of his arguments, Mr. Lane relies on the
    testimony of Ms. Owens, who testified that DGS received
    “permission to RIF [the seven employees]. However, the positions
    were posted simultaneously so the people could apply for the
    positions, and while [they] may have been RIF’d, they still did
    not miss any money because if [they] applied for [their] job and
    accepted it, [they] could just come back to work.” Id. at 122:7-
    23
    13. Ms. Owens further testified that DGS “needed [the seven
    employees] to come into the larger alignment.” Id. at 122:18-19.
    In response to whether what occurred was really a RIF since the
    work still needed to be done, Ms. Owens testified that “it was
    really a realignment, and it would have been a reduction in
    force based just upon the EG positions.” Id. at 123:4-7.
    Here, Mr. Lane would have the Court infer that the
    District’s proffered reasons are pretextual because although the
    positions on the EG pay scale were eliminated, but the work
    still needed to be done, the elimination of the positions was a
    pretext for retaliating against him for having engaged in
    protected activity. However, Mr. Lane has provided no evidence
    that calls into question that the District honestly believed
    that it needed to eliminate the EG pay scale positions so that
    it could complete its realignment. See Fischbach, 
    86 F.3d at 1183
    . And while Mr. Lane disputes that a realignment occurred,
    he has provided no evidence that calls into question that the
    District honestly believed that it was engaging in a
    realignment. See 
    id.
     The undisputed evidence shows that the
    realignment resulted in the elimination of the EG positions and
    the creation of comparable CS positions.
    Mr. Lane would also have the Court infer that because
    “neither [he], nor any of his colleagues actually ‘competitively
    bid’ for the positions they were offered on rehire,” Pl.’s
    24
    Opp’n, ECF No. 26 at 24; the elimination of the positions was
    pretext for retaliating against him for having engaged in
    protected activity. However, the Separation Letter informed Mr.
    Lane that he “ha[d] a right to priority placement consideration
    through the [ARPP],” Separation Letter, ECF No. 22-9 at 2; and
    the Offer Letter informed him that he had been “automatically
    entered on the reemployment priority list,” Offer Letter, ECF
    No. 22-10 at 1. Mr. Lane has provided no evidence that calls
    into question that the District honestly believed he was
    entitled to be offered this position through the AARP. See
    Fischbach, 
    86 F.3d at 1183
    .
    Finally, Mr. Lane would have the Court infer that because
    he was offered a position on the CS pay scale at a higher salary
    but lower grade than his EG pay scale grade, this demonstrates
    pretext for retaliating against him for having engaged in
    protected activity. The District has explained that it needed to
    eliminate the EG pay scale positions so that it could complete
    the implementation of the realignment. RIF Memorandum, ECF No.
    22-8 at 8. Mr. Lane has provided no evidence that calls into
    question that the District honestly believed that it needed to
    eliminate the remaining seven EG pay scale positions to complete
    its realignment. Fischbach, 
    86 F.3d at 1183
    .
    Mr. Lane has failed to present evidence from which “a
    reasonable jury could not only disbelieve the employer's
    25
    reasons, but conclude that the real reason the employer took a
    challenged action was a prohibited one.” Walker, 798 F.3d at
    1093. Accordingly, the District’s Motion for Summary Judgment as
    to Mr. Lane’s retaliation claim is GRANTED.
    D. Mr. Lane’s § 1981 and § 1983 Claims
    The District did not move for summary judgment on Mr.
    Lane’s claims that he was retaliated against in violation of 42
    U.S.C. § 1981 and 42 U.S.C. § 1983, explaining in its Reply
    brief that it inadvertently failed to do so. See Reply, ECF No.
    27 at 5. However, the precedent in this Circuit is that courts
    should not address arguments raised for the first time in a
    reply brief, and the Court declines to do so here. See, e.g.,
    McBride v. Merrell Dow & Pharm., 
    800 F.2d 1208
    , 1211 (D.C. Cir.
    1986) (“Considering an argument advanced for the first time in a
    reply brief ... is not only unfair to [a defendant], but also
    entails the risk of an improvident or ill-advised opinion on the
    legal issues tendered.” (citation omitted)); Conservation Force
    v. Salazar, 
    916 F. Supp. 2d 15
    , 22 (D.D.C. 2013), aff'd 
    699 F.3d 538
     (D.C. Cir. 2012) (forfeiting an argument made for the first
    time in a reply brief); see also Jones v. Mukasey, 
    565 F. Supp. 2d 68
    , 81 (D.D.C. 2008) (holding that D.C. precedent
    consistently submits that courts should not address arguments
    raised for the first time in a party's reply). Accordingly, the
    parties will be ordered to file, by no later than 14 days
    26
    following the entry of this Memorandum Opinion and accompanying
    Order, a Joint Status Report with recommendations for further
    proceedings with regard to Mr. Lane’s remaining retaliation
    claims in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 1983.
    E. Mr. Lane’s Claim for Misuse of Government Funds Is
    Dismissed
    In Count IV, Mr. Lane alleges misuse and diversion of
    government funds, seeking an order from the Court requiring the
    District “to restore funds authorized for [his] position in the
    budgets for fiscal years 2013-2016,” and enjoining the District
    “from terminating jobs which would have otherwise been properly
    funded and preserved except for its illegal reallocation of said
    funds.” Am. Compl., ECF No. 101 ¶ 87. The District seeks
    dismissal of this claim, arguing that Mr. Lane cannot maintain a
    claim against the District for misuse and diversion of
    government funds because there is no private cause of action for
    alleged misuse and diversion of government funds in the civil
    context. See Def.’s Mot., ECF No. 22 at 21.
    A complaint must contain "a short and plain statement of
    the claim showing that the pleader is entitled to relief, in
    order to give the defendant fair notice of what the . . . claim
    is and the grounds upon which it rests." Bell Atl. Corp. v.
    Twombly, 
    550 U.S. 544
    , 555, (2007) (internal quotation marks
    omitted). Despite this liberal pleading standard, to survive a
    27
    motion to dismiss, a complaint "must contain sufficient factual
    matter, accepted as true, to state a claim to relief that is
    plausible on its face." Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678,
    (2009) (internal quotation marks omitted). A claim is facially
    plausible when the facts pled in the complaint allow the court
    to "draw the reasonable inference that the defendant is liable
    for the misconduct alleged." 
    Id.
     The standard does not amount to
    a "probability requirement," but it does require more than a
    "sheer possibility that a defendant has acted unlawfully." 
    Id.
    In support of his claim, Mr. Lane points to two cases which
    affirm the existence of judicial review of certain agency action
    and one case which finds it precluded. In Simpson v. District of
    Columbia Office of Human Rights, 
    597 A.2d 392
    , (D.C. 1991), the
    District of Columbia Court of Appeals (“DCCA”) held that
    although the D.C. Humans Rights Act (“HRA”) does not explicitly
    provide for judicial review of Office of Human Rights (“OHR”)
    findings, an OHR determination that there was no probable cause
    to believe that the HRA had not been violated was subject to
    judicial review. 
    Id. at 399-99
    . In District of Columbia v. Reid,
    
    104 A.3d 859
     (2014), the DCCA held that the Homeless Services
    Reform Act (“HRSA”) entitled homeless families “the right to sue
    to obtain apartment-style shelter.” 
    Id. at 874
    . In People’s
    Counsel of Dist. of Columbia v. Public Service Commission of the
    District of Columbia, 
    474 A.2d 1275
     (D.C. 1984), however, the
    28
    Court held that judicial review of the Public Service
    Commission’s denial of declaratory relief was available. See 
    id. at 1276
    .
    In each of these cases, the determination of whether
    judicial review was available depended upon the particular
    statutory provision at issue. Here, Mr. Lane has not indicated
    the statutory provision(s) upon which his claim rests. See
    generally Am. Compl., ECF No. 1-1; Pl.’s Opp’n, ECF No. 26.
    Accordingly, Mr. Lane’s claim for misuse of government funds is
    DISMISSED.
    V.   Conclusion
    Drawing every justifiable inference in Mr. Lane’s favor, as
    the Court must, it finds no basis upon which a reasonable
    factfinder could conclude the District discriminated against Mr.
    Lane based on his age when it terminated him, or that it
    retaliated against him for taking part in a protected activity
    when it terminated him. Accordingly, the District’s Motion for
    Summary Judgment is GRANTED. Additionally, Mr. Lane’s claim for
    misuse of government funds is DISMISSED. An appropriate Order
    accompanies this Memorandum Opinion.
    SO ORDERED.
    Signed:    Emmet G. Sullivan
    United States District Judge
    August 31, 2021
    29
    

Document Info

Docket Number: Civil Action No. 2017-1484

Judges: Judge Emmet G. Sullivan

Filed Date: 8/31/2021

Precedential Status: Precedential

Modified Date: 8/31/2021

Authorities (20)

Jones v. Mukasey , 565 F. Supp. 2d 68 ( 2008 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

Cain v. REINOSO , 2012 D.C. App. LEXIS 158 ( 2012 )

Schuler v. PRICEWATERHOUSECOOPERS, LLP , 595 F.3d 370 ( 2010 )

Waterhouse v. District of Columbia , 298 F.3d 989 ( 2002 )

Brady v. Office of the Sergeant at Arms , 520 F.3d 490 ( 2008 )

Holcomb, Christine v. Powell, Donald , 433 F.3d 889 ( 2006 )

United States v. Rayful Edmond, III , 924 F.2d 261 ( 1991 )

Ronald J. Fischbach v. District of Columbia Department of ... , 86 F.3d 1180 ( 1996 )

Howard University v. Green , 1994 D.C. App. LEXIS 237 ( 1994 )

William G. McBride v. Merrell Dow and Pharmaceuticals, Inc.,... , 800 F.2d 1208 ( 1986 )

Stella, Marie v. v. Mineta, Norman Y. , 284 F.3d 135 ( 2002 )

Simpson v. District of Columbia Office of Human Rights , 1991 D.C. App. LEXIS 266 ( 1991 )

Baloch v. Kempthorne , 550 F.3d 1191 ( 2008 )

Association of Flight Attendants-CWA v. United States ... , 564 F.3d 462 ( 2009 )

Kumar v. District of Columbia Water & Sewer Authority , 2011 D.C. App. LEXIS 371 ( 2011 )

View All Authorities »