Wang v. Washington Metropolitan Area Transit Authority ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMY WANG, :
:
Plaintiff, :
: Civil Action No.: 14-1189 (RC)
v. :
: Re Document No.: 19
WASHINGTON METROPOLITAN AREA :
TRANSIT AUTHORITY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Citing acts of insubordination and communication issues, Defendant Washington
Metropolitan Area Transit Authority (WMATA) placed its former Financial Control Manager,
Plaintiff Amy Wang, on a thirty-day corrective action plan. After Ms. Wang’s supervisor found
Ms. Wang’s performance on the corrective action plan unacceptable, WMATA terminated
Ms. Wang’s employment.
This suit followed. Ms. Wang alleges that WMATA violated Title VII of the Civil Rights
Act of 1964 by discriminating against her based on her national origin, race, and sex, and by
retaliating against her in response to her opposition to those discriminatory acts. Ms. Wang also
alleges that WMATA retaliated against her in response to her whistleblowing in relation to
federal funds WMATA received under the American Recovery and Reinvestment Act of 2009
(ARRA).
WMATA now moves for summary judgment. On the record the parties present, a
reasonable jury could find that WMATA’s reasons for terminating Ms. Wang are a pretextual
cover for discrimination. A reasonable jury could alternatively find that WMATA terminated
Ms. Wang as retaliation for her opposition to what she reasonably perceived to be WMATA’s
discrimination. The Court therefore declines to grant summary judgment on Ms. Wang’s Title
VII claims. But, because Ms. Wang has not established that she made a disclosure that the
ARRA’s whistleblower provision protects, the Court will grant WMATA’s motion for summary
judgment on Ms. Wang’s ARRA retaliation claim.
II. BACKGROUND1
A. Ms. Wang’s First Two Years at WMATA (2006–2008)
Defendant WMATA provides transit services in the Washington, D.C. metropolitan area.
Am. Compl. ¶ 20, ECF No. 9; Answer Am. Compl. ¶ 20, ECF No. 10.2 On May 22, 2006,
1
Unless otherwise noted, this section recounts only facts that the parties do not dispute or
facts substantiated by the record. See Answer Am. Compl., ECF No. 10 (admitting some of
Ms. Wang’s allegations in her amended complaint); Pl.’s Statement of Material Facts in Dispute
1–5, ECF No. 20-1 [hereinafter Pl.’s Statement] (agreeing that certain facts, which WMATA
listed in its statement of undisputed facts, are undisputed); id. at 5–8 (listing additional
undisputed facts); Def.’s Resp. Pl.’s Statement, ECF No. 21-1 [hereinafter Def.’s Resp.
Statement] (declining to dispute Ms. Wang’s additional undisputed facts, and admitting or
declining to dispute some of the facts Ms. Wang asserted are disputed).
2
Ms. Wang filed an amended complaint on January 13, 2015—six months after she filed
her initial complaint on July 15, 2014, and five months after WMATA filed its answer on August
7, 2014. See Am. Compl. 28 (dated January 13, 2015); Answer 15, ECF No. 4 (dated August 7,
2014); Compl. 19, ECF No. 1 (dated July 15, 2014). Because Ms. Wang filed her amended
complaint outside of the time period in which she could have amended her complaint as a matter
of course, see Fed. R. Civ. P. 15(a)(1) (allowing parties to amend their pleadings within
twenty-one days of serving them, or within twenty-one days after service of a responsive
pleading or certain responsive motions), she should have either sought the Court’s leave to
amend her complaint or provided proof of WMATA’s written consent, see Fed. R. Civ. P.
15(a)(2). See also Scheduling Order, ECF No. 6 (declaring that “any party proposing
amendments to the pleadings must seek leave to do so” by January 15, 2015 (emphasis added)).
Even though Ms. Wang did not strictly comply with Rule 15’s requirements, WMATA
has implicitly consented to Ms. Wang’s amended complaint by failing to object to it, answering
it, and addressing its claims in its motion for summary judgment. See Answer Am. Compl. 1–19;
Def.’s Mem. P. & A. Supp. Mot. Summ. J. 6–38, ECF No. 19 [hereinafter Def.’s Mem.]. The
2
Plaintiff Amy Wang, a Chinese-American female, began working as the Financial Control
Manager in WMATA’s Office of Accounting. Am. Compl. ¶¶ 2, 30; Answer Am. Compl. ¶¶ 2,
30; Statement of Material Facts Not in Dispute ¶ 1, ECF No. 19-2 [hereinafter Def.’s Statement];
Pl.’s Statement of Material Facts in Dispute 1, ¶ 1, ECF No. 20-1 [hereinafter Pl.’s Statement].3
As WMATA’s Financial Control Manager, Ms. Wang’s responsibilities included managing
WMATA’s General Ledger and WMATA’s Accounts Receivable group. Def.’s Statement ¶ 2;
Pl.’s Statement 2, ¶ 2. She also supervised several employees. Def.’s Statement ¶ 2; Pl.’s
Statement 2, ¶ 2. During Ms. Wang’s first two years at WMATA, Ms. Wang reported to
Kathleen Smith, WMATA’s Comptroller, until Ms. Smith left WMATA in January 2008. Pl.’s
Statement 5–6, ¶¶ 42, 45; accord Audette Dep. 17:12–18:8, Pl.’s Statement Ex. 2, ECF No. 20-4.
Between January 2008 and October 2008, Ms. Wang reported to Fawzia Hafeez, WMATA’s
Acting Comptroller. Pl.’s Statement 5–6, ¶ 45; accord Audette Dep. 18:4–15.
B. Ms. Wang’s Years Under Ms. Audette’s Supervision (2008–2012)
1. Performance Evaluations and Corrective Action Plan
In October 2008, Stephanie Audette became WMATA’s Comptroller and Ms. Wang’s
direct supervisor. Def.’s Statement ¶ 8; Pl.’s Statement 2, ¶ 5. Ms. Audette remained Ms. Wang’s
direct supervisor until August 2012. Pl.’s Statement 5, ¶ 42; accord Audette Dep. 16:22–17:3.
Court therefore considers Ms. Wang’s amended complaint to be the complaint currently
governing this case.
3
Even though Ms. Wang’s name sometimes appears in the record as “Huiling Wang,”
see, e.g., Pl.’s Statement Ex. 13, ECF No. 20-15 (reproducing a performance evaluation for work
performed between May 15, 2006 and May 15, 2007, in which Ms. Wang’s name appears as
“Huiling Wang”), both the parties refer to Ms. Wang as “Amy Wang.” See Def.’s Statement ¶ 1;
Pl.’s Statement 1, ¶ 1. Ms. Wang stated in her deposition that her first name was “Huiling”
before she was naturalized and became an American citizen, that she was known by the first
name “Amy” even before she was naturalized, and that “Huiling” became her middle name after
she was naturalized. Wang Dep. 13:20–14:20, Pl.’s Statement Ex. 1, ECF No. 20-3.
3
Between October 2008 and August 2012, Ms. Audette prepared Ms. Wang’s yearly performance
evaluations. Pl.’s Statement 5, ¶¶ 43–44; accord Audette Dep. 16:22–17:6.
Ms. Wang received her 2009 performance evaluation from Ms. Audette on September 9,
2009. Def.’s Statement ¶ 8; Pl.’s Statement 2, ¶ 5. In that evaluation, Ms. Audette gave
Ms. Wang a “Needs Improvement” rating in ten of the thirteen categories in the evaluation.
Def.’s Statement ¶ 8; Pl.’s Statement 2, ¶ 5. Ms. Audette accordingly placed Ms. Wang on a
corrective action plan, in which Ms. Wang received three and a half months to meet the goals
specified in the plan. Def.’s Statement ¶ 8; Pl.’s Statement 2, ¶ 5; id. at 19, ¶ 3; Def.’s Resp. Pl.’s
Statement 7, ¶ 3, ECF No. 21-1 [hereinafter Def.’s Resp. Statement]. Ms. Wang successfully
completed the tasks specified in the plan. Pl.’s Statement 19, ¶ 4; Def.’s Resp. Statement 7, ¶¶ 2,
4. Ms. Wang received a satisfactory performance evaluation in 2010, and she received a
“competent” or “exceeds expectations” rating for each metric in her 2011 and 2012 performance
evaluations. Am. Compl. ¶ 38; Answer Am. Compl. ¶ 38; Pl.’s Statement 14, ¶ 25; Def.’s Resp.
Statement 5, ¶ 24.
2. IFO Project
In 2010, while Ms. Audette was Ms. Wang’s supervisor, WMATA began work with a
contractor named Metaformers on a project titled the PeopleSoft Integrated Finance Organization
Project, or the “IFO Project.” Am. Compl. ¶¶ 50, 54 (indicating that WMATA awarded
Metaformers the contract for the IFO Project in July 2010); Answer Am. Compl. ¶¶ 50, 54
(same); Pl.’s Statement 5, ¶ 43 (indicating that Ms. Audette was Ms. Wang’s supervisor in
2010); Audette Dep. 16:22–17:3 (same). Supported by about five million dollars in federal
stimulus funds, the IFO Project sought to upgrade, restructure, and bring new modules into the
PeopleSoft Enterprise software that WMATA’s financial departments used. Def.’s Statement
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¶ 75; Pl.’s Statement 4, ¶ 24; id. at 55–56, ¶¶ 1–2; Def.’s Resp. Statement 15, ¶¶ 1–2. One of the
IFO Project’s major goals was to eliminate manual communication between different modules by
allowing the modules to be integrated together. Def.’s Statement ¶ 79; Pl.’s Statement 4, ¶ 28. To
that end, for instance, the IFO Project integrated WMATA’s Project Costing accounting system
with WMATA’s PeopleSoft Financial system. Am. Compl. ¶ 113; Answer Am. Compl. ¶ 113.
The IFO Project proceeded in stages: a design phase came first, followed by a testing
phase, then an implementation phase, and finally a maintenance phase. Def.’s Statement ¶ 76;
Pl.’s Statement 4, ¶ 25. During the course of the project, a “Project Team” of WMATA
employees (“leads”) worked full-time on the IFO Project alongside Metaformers. Def.’s
Statement ¶ 77; Pl.’s Statement 4, ¶ 26. But regardless of WMATA employees’ Project Team
membership, WMATA required everyone in its Office of Accounting to contribute to the IFO
Project. Def.’s Statement ¶ 78; Pl.’s Statement 4, ¶ 27. Thus, although Ms. Wang and her staff
were not Project Team members, they were “subject-matter experts” for IFO Project purposes,
because they used the modules that the IFO Project upgraded. Def.’s Statement ¶ 77; Pl.’s
Statement 4, ¶ 26.
While work for the IFO Project was ongoing, it was Ms. Wang’s group’s top priority.
Pl.’s Statement 57, ¶ 13; Def.’s Resp. Statement 16, ¶ 13. Ms. Wang helped the Project Team
with the design and testing for software used in Ms. Wang’s areas of responsibility. Pl.’s
Statement 57, ¶ 11; Def.’s Resp. Statement 16, ¶ 11. For instance, during the testing phase,
Metaformers would produce testing kits, and Ms. Wang would organize her staff so that affected
staff members could use the kits to test affected modules. Def.’s Statement ¶ 80; Pl.’s Statement
4, ¶ 29. Because she did not believe she could do all the testing herself, Ms. Wang relied on her
staff to test the modules: she assigned testing tasks and monitored her staff’s performance and
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completion of the tasks. Def.’s Statement ¶ 80; Pl.’s Statement 4, ¶ 29; id. at 57–58, ¶ 14; Def.’s
Resp. Statement 16, ¶ 14. Throughout the IFO Project, at the end of each accounting period, Ms.
Wang was responsible for ensuring that all accounts’ transactions were properly completed, and
that fiscal years and accounting periods closed in a timely manner. Am. Compl. ¶ 94; Answer
Am. Compl. ¶ 94.
As the IFO Project went on, however, extensive data issues arose that required manual
interventions, data deletions, and data corrections. Am. Compl. ¶ 109, Answer Am. Compl.
¶ 109. In September 2012, for instance, the IFO Project created a $26 million erroneous billing
entry, which Ms. Audette asked Ms. Wang to correct. Pl.’s Statement 60, ¶ 28; Def.’s Resp.
Statement 17, ¶ 28 (declining to dispute this fact). After Ms. Wang refused to correct the entry
because she claimed that she lacked supporting documentation for the correction, Ms. Audette
asked one of Ms. Wang’s staff members to correct the entry, because Ms. Audette believed that
the correction did have supporting documentation. Pl.’s Statement 60, ¶¶ 28–29; Def.’s Resp.
Statement 17, ¶¶ 28–29.
Ms. Wang raised issues with the IFO Project’s implementation in emails to Ms. Audette
and others in October 2011, in a meeting in November 2011, and in an email in July 2012. Pl.’s
Statement 58–60, ¶¶ 19, 25; Def.’s Resp. Statement 16–17, ¶¶ 19, 25. The issues meant that
WMATA never completed a design that allowed automated integration of assets. Pl.’s Statement
62, ¶ 35; Def.’s Resp. Statement 17, ¶ 35. By July 2012, the issues were well-known and widely
discussed. Def.’s Statement ¶ 95; Pl.’s Statement 5, ¶ 35. Despite the group efforts taken to
resolve the issues, they persisted for years after the upgraded software’s implementation. Am.
Compl. ¶ 118; Answer Am. Compl. ¶ 118; Pl.’s Statement 57, ¶ 9; Def.’s Resp. Statement 15,
¶ 9.
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C. Ms. Wang’s Year Under Mr. Greaves’s Supervision (2012–2013)
1. Supervisory Structure
In August 2012, WMATA hired Ian Greaves to become its Assistant Comptroller, a
newly created position that reported to Ms. Audette. Def.’s Statement ¶ 11; Pl.’s Statement 2,
¶ 6; id. at 6, ¶ 49; see also Greaves Dep. 15:3–5, Pl.’s Statement Ex. 3, ECF No. 20-5 (noting
that Ms. Audette was Mr. Greaves’s supervisor). Mr. Greaves became Ms. Wang’s direct
supervisor, as well as the supervisor for WMATA employees in five other positions in the Office
of Accounting: (1) Jessie Li, the Accounts Payable Manager;4 (2) Colleen Clancy, the Asset
Management Supervisor; (3) the Financial System Manager, a position that was vacant at the
time; (4) Fawzia Hafeez, the Financial Analysis Manager; and (5) Jamette Williams, the Project
Costing Manager. Def.’s Statement ¶¶ 11–12; Pl.’s Statement 2, ¶¶ 6–7; id. at 6–7, ¶¶ 53, 56; see
also Greaves Dep. 18:18–21:7 (noting the various employees that reported to Mr. Greaves). Of
the five managers reporting to Mr. Greaves in 2012, at least four were women. Def.’s Statement
¶ 12; Pl.’s Statement 2, ¶ 7. Ms. Li, like Ms. Wang, was Chinese-American and was not a native
English speaker. Def.’s Statement ¶ 12; Pl.’s Statement 2, ¶ 7. And Ms. Hafeez was not born in
the United States. Def.’s Statement ¶ 12; Pl.’s Statement 2, ¶ 7.
When Mr. Greaves became Ms. Wang’s supervisor, Ms. Wang herself supervised three
employees: (1) Shawn Brown, the General Ledger Supervisor; (2) Dale Dixon, the Accounts
Receivable Supervisor; and (3) Francisco Julia, a Financial Analyst. Pl.’s Statement 7, ¶ 58;
4
Although Ms. Li’s legal name appears to be “Litien Li,” the parties and WMATA
employees refer to Ms. Li by the first name that she adopted, “Jessie.” See Def.’s Statement ¶ 12;
Pl.’s Statement 2, ¶ 9; Li Dep. 6:8–6:12, Pl.’s Statement Ex. 5, ECF No. 20-7 (“My name is
Litien Li. You can call me Jessie.”). The Court does the same.
7
accord Greaves Dep. 39:8–40:6. Ms. Brown was an African-American woman. Pl.’s Statement
44, ¶ 3; Def.’s Resp. Statement 12–13, “Page 44 of 63,” ¶ 3.
2. Performance Evaluation
On February 1, 2013, Mr. Greaves issued Ms. Wang her 2012 performance evaluation.
Am. Compl. ¶ 46; Answer Am. Compl. ¶ 46. Ms. Wang received a “competent” rating in many
areas, including interpersonal skills, and an “exceeds expectations” rating for customer focus,
decisionmaking, and innovation. Am. Compl. ¶¶ 47–48; Answer Am. Compl. ¶¶ 47–48. Because
Mr. Greaves had only recently joined WMATA, the performance evaluation included comments
from both Ms. Audette and Mr. Greaves. Def.’s Statement ¶¶ 27–28; Pl.’s Statement 2–3;
¶¶ 10–11. Ms. Audette noted that Ms. Wang needed to continue to improve her communication
skills, and that Ms. Wang “ha[d] good ideas but need[ed] to make them clear to her team and
peers.” Def.’s Statement ¶ 28; Pl.’s Statement 3, ¶ 11. Mr. Greaves’s sole comment on
Ms. Wang’s evaluation stated that
Amy is cooperative and willing to work with new management. Amy can
continue to improve her performance by administering appropriate review of all
journal entries to ensure transactions are accurate and properly supported. Amy
should also seek to broaden her knowledge of the basic financial statements.
Finally, Amy needs to make an avid effort to enhance her communication skills.
Def.’s Statement Ex. 9, at 280, ECF No. 19-11 (reproducing Ms. Wang’s performance
evaluation); accord Def.’s Statement ¶ 27; Pl.’s Statement 2, ¶ 10; id. at 16, ¶ 35; Def.’s Resp.
Statement 5, ¶ 35.
3. IFO Project
Mr. Greaves and Ms. Wang had one discussion about IFO Project issues relating to
WMATA’s Asset Management module. Def.’s Statement ¶ 92; Pl.’s Statement 4, ¶ 33. In July
2013, Ms. Wang alerted Mr. Greaves to instances in which software improperly “pulled” data
from WMATA’s operating inventory expense account, instead of from WMATA’s capital
8
transactions account, into the Asset Management module. Pl.’s Statement 59, ¶ 20; Def.’s Resp.
Statement 16, ¶ 20. Ms. Wang created a spreadsheet with short-term and long-term items,
including additional staff training, that she thought would address the problems. Pl.’s Statement
59, ¶ 20; Def.’s Resp. Statement 16, ¶ 20. Ms. Wang gave her list of solutions to Mr. Greaves,
and Mr. Greaves gave that list to one of the IFO Project Team leads. Def.’s Statement ¶¶ 92–93;
Pl.’s Statement 4–5, ¶¶ 33–34.
D. Events Leading to Ms. Wang’s Termination
1. Meeting About Mr. Julia’s Transfer (September 5, 2013)
Until September 5, 2013, Ms. Wang described her relationship with Mr. Greaves as
“fine” and “okay.” Def.’s Statement ¶ 16; Pl.’s Statement 2, ¶ 8. On September 5, Mr. Greaves
held a meeting with Ms. Wang, the Financial Control Manager; Ms. Li, the Accounts Payable
Manager; Mr. Dixon, the Accounts Receivable Supervisor; and Mr. Julia, the Financial Analyst
who reported to Ms. Wang. Am. Compl. ¶ 121; Answer Am. Compl. ¶ 121. At the meeting,
Mr. Greaves issued a “directive to allocate the duties currently performed by Francisco [Julia] to
the Accounts Receivable (AR) staff.” Am. Compl. ¶ 140 (reproducing Mr. Greaves’s written
account of what transpired at the meeting); Answer Am. Compl. ¶ 140 (admitting that the text
reflects Mr. Greaves’s written account). Although the parties dispute what else occurred during
that meeting, they do not dispute that, after the meeting and on that same day, Mr. Greaves
prepared a written warning to give to Ms. Wang. Def.’s Statement ¶ 32; Pl.’s Statement 3, ¶ 12;
cf., e.g., Def.’s Statement ¶ 30 (alleging that “Ms. Wang yelled, interrupted, and shouted” during
the meeting); Pl.’s Statement 21–22, ¶¶ 3–4 (alleging that Ms. Wang “did not raise her voice and
was not disrespectful or insubordinate,” and that Mr. Greaves “was angry and did not want to
listen to” Ms. Wang’s concerns).
9
The record shows that Ms. Wang emailed Ms. Audette at 3:57 PM on September 5, 2013
after the meeting with Mr. Greaves. See Pl.’s Statement Ex. 17, ECF No. 20-19 (reproducing the
email); accord Am. Compl. ¶ 134. In her email, Ms. Wang stated that Mr. Greaves “called a
meeting and told [Ms. Wang] that he was taking [Mr. Julia]” and moving him to another
WMATA component, and so Ms. Wang “would have to assume all of [Mr. Julia’s]
responsibilities.” Pl.’s Statement Ex. 17. Ms. Wang further stated that “[she] felt that [she was]
being taken advantage of because [she does] not complain and just get[s] the job done.” Id. She
concluded by stating that “[she was] not sure about [her] next step,” but hoped to discuss the
matter with Ms. Audette at Ms. Audette’s convenience. Id.
The record further shows that, within an hour of when Ms. Wang sent her email to
Ms. Audette, Mr. Greaves learned about Ms. Wang’s September 5 email because Ms. Audette
had forwarded the email to Mr. Greaves. See Def.’s Statement Ex. 12/13, at 488–89, ECF
No. 19-14 (showing that Ms. Audette forwarded Ms. Wang’s email to Mr. Greaves at 4:31 PM,
and that Mr. Greaves replied to Ms. Audette at 4:43 PM). In Mr. Greaves’s 4:43 PM reply to
Ms. Audette, sent immediately after he received a copy of Ms. Wang’s email, Mr. Greaves
alleged that Ms. Wang was “mischaracterizing the event in an attempt to create a case.” Id. at
488. Mr. Greaves replied to Ms. Audette’s email once more that day at 6:20 PM. See id. at
487–88. In his second reply, Mr. Greaves provided six enumerated responses to what he
characterized as Ms. Wang’s “allegations.” Id. As one of his responses, he wrote to Ms. Audette
that “[s]aying words like angrily, abruptly, and advantage as you know are words Amy [Wang]
is documenting to develop a case.” Id. at 488.
10
2. First Written Warning (September 6, 2013)
The next day, Mr. Greaves and Ms. Wang argued about another issue: whether to train
Mr. Dixon (in addition to Ms. Wang’s other supervisee, Ms. Brown) about the month-end
closing process. Pl.’s Statement 25–26, ¶ 1; Def.’s Resp. Statement 8–9, “Page 25 of 63,” ¶ 1. On
September 6, Mr. Greaves also delivered to Ms. Wang the written warning he had prepared the
day before. Def.’s Statement ¶ 32; Pl.’s Statement 3, ¶ 12. The warning, reproduced in full
below, stated that Ms. Wang had been insubordinate in the meeting held on September 5, 2013:
This memo is to issue a disciplinary warning as a result of an act of
insubordination you committed on September 5, 2013 . . . during a department
planning meeting that was conducted in my office. The meeting participants were
Francisco Julia, Jessie Li, Dale Dixon, Amy Wang (you), and Ian Greaves (me).
You disagreed with my directive to allocate the duties currently performed by
Francisco to the Accounts Receivable (AR) staff, thereby realigning the AR
branch responsibilities. In addition to emphatically defying a directive, you
ignored multiple verbal warnings and continuously interrupted the discussion. I
attempted to give you a more confidential setting to express your concerns by
dismissing the staff and inviting only Tywanda Diggs to the meeting. Yet, you
continued to disrupt that session as well.
Your behavior as a manager in the presence of peers and your subordinates was
unprofessional. As a manager, you are in a trusted position where a higher level of
accountability is expected of you to conduct yourself as a professional and serve
as a role model for your subordinates.
Further displays of insubordinate behavior will not be tolerated and can result in
further disciplinary action up to and including termination, Metro/Policy
Instruction 7.8.5, Disciplinary Actions.
Again, please provide the realignment of duties as requested by 5:00 PM Friday,
September 13, 2013.
Def.’s Statement Ex. 11, ECF No. 19-13.
The parties agree that the written warning neither terminated Ms. Wang’s employment
nor changed her benefits, salary, or title. Def.’s Statement ¶¶ 34, 43; Pl.’s Statement 3, ¶¶ 13, 15.
During the encounter between Mr. Greaves and Ms. Wang, however, Ms. Wang had the
11
impression of being terminated. Pl.’s Statement 26–27, ¶ 3; Def.’s Resp. Statement 8–9, “Page
25 of 63,” ¶ 3. Specifically, Ms. Wang alleges that, during their September 6 conversation,
(1) Mr. Greaves began to “yell and scream”; (2) Ms. Wang told him that, because of his yelling
and screaming, Mr. Greaves “seem[ed] to abuse [his] authority”; (3) Mr. Greaves replied that
“[a]buse would be a word you would tell a lawyer”; (4) Ms. Wang replied “[m]aybe”; and
(5) Mr. Greaves became very excited, pointed his finger to Ms. Wang’s nose, and said “You’re
fired. You’re fired. You’re fired immediately.” Wang Dep. 194:3–7, 206:2–6, 212:10–214:20,
Pl.’s Statement Ex. 1, ECF No. 20-3. Mr. Greaves admits that Ms. Wang may have mentioned
that she might retain an attorney, but he generally disagrees with Ms. Wang’s version of events
and contends that he has never yelled at Ms. Wang. Greaves Dep. 147:16–150:18, Pl.’s
Statement Ex. 3, ECF No. 20-5.
Thomas Vu, a WMATA employee who had an office adjacent to Ms. Wang’s, recalls an
occasion “early in the morning,” about two weeks before WMATA fired Ms. Wang, when
Mr. Vu “heard a lot of shouting and voice raising” coming from Ms. Wang’s office, as well as
Mr. Greaves saying “You’re fired” and “You’re fired immediately.” Pl.’s Statement 27–28,
¶¶ 5–8; Def.’s Resp. Statement 9, ¶¶ 5–8. Mr. Vu also recalled that Ms. Wang responded by
saying “This is not professional” in a lower tone. Pl.’s Statement 27–28, ¶¶ 5–6; Def.’s Resp.
Statement 9, ¶¶ 5–6.
3. First OIG Visit (September 6, 2013)
After the encounter in which Ms. Wang received the written warning from Mr. Greaves,
Ms. Wang went to WMATA’s Office of the Inspector General (OIG). Def.’s Statement ¶ 35;
Pl.’s Statement 3, ¶ 14; id. at 30, ¶ 1; Def.’s Resp. Statement 9, “Page 30 of 63,” ¶ 1. Ms. Wang
sought out the OIG because she thought that the OIG was “in charge of abuse” and that
12
Mr. Greaves had been harassing her. Pl.’s Statement 30, ¶ 1; Def.’s Resp. Statement 9, “Page 30
of 63,” ¶ 1. At the OIG, Ms. Wang reported that her supervisor had “yelled and screamed” at her
and that she was scared. Pl.’s Statement 30, ¶ 1; Def.’s Resp. Statement 9, “Page 30 of 63,” ¶ 1.
In an interview with OIG Special Agent Mark Coulter, Ms. Wang explained what had happened
between Mr. Greaves and herself, beginning with the meeting when Mr. Greaves announced the
plan to move Mr. Julia. Pl.’s Statement 30–31, ¶¶ 2, 4; Def.’s Resp. Statement 9, “Page 30 of
63,” ¶¶ 1–2, 4. See generally Def.’s Statement Ex. 15 (reproducing the audio file from Special
Agent Coulter’s interview with Ms. Wang). Ms. Wang told Special Agent Coulter that, in the
face of the disagreement between Mr. Greaves and Ms. Wang, Mr. Greaves’s immediate
response was to tell Ms. Wang “You’re fired.” Pl.’s Statement 31, ¶ 6; Def.’s Resp. Statement
9–10, “Page 30 of 63,” ¶¶ 1, 6. Ms. Wang also told Special Agent Coulter that she thought
Mr. Greaves was treating her unfairly, that she had unsuccessfully tried to meet with
Ms. Audette, and that overall she “was very unhappy in how she had been treated.” Pl.’s
Statement 31–32, ¶¶ 3, 7; Def.’s Resp. Statement 9–10, “Page 30 of 63,” ¶¶ 1, 3, 7.
In response, Special Agent Coulter explained to Ms. Wang that, for terminations of
employment, WMATA had specific procedures, which Mr. Greaves did not appear to have
followed. Pl.’s Statement 31, ¶ 4; Def.’s Resp. Statement 9, “Page 30 of 63,” ¶¶ 1, 4. Thus,
Special Agent Coulter advised Ms. Wang to stay at WMATA for the time being. Pl.’s Statement
30, ¶ 1; Def.’s Resp. Statement 9, “Page 30 of 63,” ¶ 1. Special Agent Coulter also told
Ms. Wang that he would report the matter to his boss and that the OIG would investigate the
incident. Pl.’s Statement 30, ¶ 1; id. at 31, ¶ 4; Def.’s Resp. Statement 9, “Page 30 of 63,” ¶¶ 1,
4. After her interview with Special Agent Coulter, Ms. Wang emailed Special Agent Coulter and
13
asked him to provide her with the contact information for WMATA’s “EEO office.” Def.’s
Statement Ex. 18, ECF No. 19-18 (reproducing Ms. Wang’s email to Special Agent Coulter).
4. Communications with Ms. Audette and Mr. Greaves After First OIG Visit
When Ms. Wang returned to her office after speaking with Special Agent Coulter at the
OIG, she saw a note from Mr. Greaves. Pl.’s Statement 32–33, ¶ 12; Def.’s Resp. Statement 10,
¶ 12. The note requested that Ms. Wang meet with Mr. Greaves and Ms. Audette before leaving
the office for the day. Pl.’s Statement 33, ¶ 14; Def.’s Resp. Statement 10, ¶ 14. Mr. Greaves had
also sent Ms. Wang an email, in which he stated that he and Ms. Audette wanted to “review
expectations” with Ms. Wang, and that Ms. Wang would still be expected to report to work the
following Monday. Pl.’s Statement 33, ¶ 14; Def.’s Resp. Statement 10, ¶ 14.
Mr. Greaves then came to Ms. Wang’s office, escorted Ms. Wang to Ms. Audette’s
office, and left the two in Ms. Audette’s office. Pl.’s Statement 33, ¶ 14; Def.’s Resp. Statement
10, ¶ 14. There, Ms. Wang told Ms. Audette that she was scared, threatened, and insulted by
Mr. Greaves’s behavior. Pl.’s Statement 33, ¶ 14; Def.’s Resp. Statement 10, ¶ 14. Ms. Wang
also told Ms. Audette that she had reported Mr. Greaves’s behavior to the OIG. Pl.’s Statement
33, ¶ 14; Def.’s Resp. Statement 10, ¶ 14.
At some point later, Mr. Greaves heard a rumor that Ms. Wang may have complained to
the OIG or WMATA’s human resources department. Pl.’s Statement 42, ¶ 1; id. at 43, ¶ 4; Def.’s
Resp. Statement 12, “Page 42 of 63,” ¶¶ 1, 4. Meanwhile, in emails on September 9, 2013,
Mr. Greaves and Ms. Wang continued to argue about whether Ms. Wang should train Mr. Dixon
to perform the month-end closing process. Pl.’s Statement 34–35, ¶¶ 1–3; Def.’s Resp. Statement
10, “Page 34 of 63,” ¶¶ 1–3.
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5. Visit to WMATA’s Office of Civil Rights and Human Resources (September 11, 2013)
On September 11, 2013, Ms. Wang visited WMATA’s Office of Civil Rights and Human
Resources. Def.’s Statement ¶ 49; Pl.’s Statement 3, ¶ 18. At the time, Lisa Johnson worked in
the Equal Employment Opportunity (EEO) Division of that office as an EEO Assistant/Coordinator.
Def.’s Statement ¶ 50; Pl.’s Statement 3, ¶ 19. Ms. Johnson was responsible for handling
complaints involving discrimination claims; no one else in the EEO Division had those duties
and responsibilities. Def.’s Statement ¶ 50; Pl.’s Statement 3, ¶ 19; id. at 38, ¶ 11; Def.’s Resp.
Statement 11, ¶ 11.
The parties dispute what happened during Ms. Wang’s visit to the Office of Civil Rights
and Human Resources: Ms. Wang alleges that she spoke first with Ms. Johnson, that
Ms. Johnson said that a woman named Belinda Press would speak with Ms. Wang, that
Ms. Wang told both Ms. Johnson and Ms. Press that she had come to file a discrimination
complaint against Mr. Greaves, and that Ms. Press told Ms. Wang that Ms. Press would call
Ms. Wang later to obtain the details of her complaint. See Pl.’s Statement 35–36, ¶¶ 2–3.
WMATA disputes this version of events and contends that Ms. Press, as an Employee Relations
Officer, would not have handled equal employment opportunity issues, but instead would have
handled “discipline matters, performance issue matters, [and] peer-to-peer conflict issues.”
Def.’s Statement ¶ 51; see also Def.’s Resp. Statement 10, “Page 35 of 63,” ¶¶ 2–3 (disputing
Ms. Wang’s version of events). But the parties do agree that, after the visit, Ms. Wang’s
communications with the Office of Civil Rights and Human Resources were through Ms. Press.
Def.’s Statement ¶¶ 53–56; Pl.’s Statement 3, ¶ 20; id. at 39, ¶¶ 14–15; Def.’s Resp. Statement
11, ¶¶ 14–15.
15
Ms. Press was one of three Employee Relations Officers in WMATA’s Office of Civil
Rights and Human Resources. Pl.’s Statement 8, ¶ 72; accord Press Dep. 11:13–12:6, Pl.’s
Statement Ex. 9, ECF No. 20-11. After Ms. Wang visited WMATA’s Office of Civil Rights and
Human Resources on September 11, 2013, Ms. Wang and Ms. Press exchanged emails that same
day. Pl.’s Statement 39, ¶ 14; Def.’s Resp. Statement 11, ¶ 14. Their email exchange that day
ended with an email from Ms. Wang to Ms. Press, in which Ms. Wang sought to describe what
had happened between Ms. Wang and Mr. Greaves: “I am able to give you the timelines now so
you can see what happened, briefly. Please see the attachment. I am also attaching the desk
duties of my staff that Ian [Greaves] wants to take away from my group. Thanks.” Pl.’s
Statement 39, ¶ 14; Def.’s Resp. Statement 11, ¶ 14. Ms. Wang’s email listed attachments titled
“Timelines.docx” and “Desk Procedures - Detailed - Francisco Julia.docx,” which provided a
timeline of Ms. Wang’s interactions with Mr. Greaves between September 5, 2013 and
September 9, 2013, as well as a description of Mr. Julia’s duties. Pl.’s Statement 39, ¶ 15; Def.’s
Resp. Statement 11, ¶ 15; see also Pl.’s Statement Ex. 22, ECF No. 20-24 (reproducing
Ms. Wang’s email and the accompanying attachments). Ms. Wang and Ms. Press also had one
conversation by phone. Def.’s Statement ¶ 53; Pl.’s Statement 3, ¶ 20.
6. Second Written Warning and Corrective Action Plan (September 11, 2013)
On September 11, 2013, the same day as Ms. Wang’s visit to WMATA’s Office of Civil
Rights and Human Resources, Ms. Wang received a second written warning from Mr. Greaves.
Def.’s Statement ¶ 47; Pl.’s Statement 3, ¶ 16. The second warning, reproduced in full below,
addressed Mr. Greaves and Ms. Wang’s September 6, 2013 encounter, Ms. Wang’s
communication skills, and Ms. Wang’s performance issues:
16
This memo serves as a written warning for professional misconduct and
performance regarding behaviors you exhibited on Friday, September 6, 2013 as
well as on-going lack of follow-up on action items requested by management.
At about 9 AM on Friday, September 6, 2013, I attempted to give you a verbal
and written warning for your insubordinate behavior during a staff meeting on
Thursday, September 5, 2013. Your actions during and following my attempt to
issue that warning clearly demonstrated to me that you had no remorse for your
behavior. You continuously talked while I was speaking to you and refused to
stop when I asked you to do so. This confirmed your lack of regard and respect
for me and my office.
Later that morning you had an opportunity to speak with Stephanie [Audette] and
me in my office, and yet again, you continuously interrupted me while I attempted
to discuss expectations for you to train your supervisors on month-end closing
procedures.
As part of your 2013 performance goals, I requested that you take action to
improve your communication. Since the issuance of your 2013 goals, we have had
more than one meeting (i.e. June 7, 2013 1-n-1 and Feb 1, 2013 goals discussion)
in which I reiterated your need to fulfill this goal. As a manager you are expected
to communicate effectively and properly to everyone including all WMATA
personnel and business partners. I noted this in your 2012 annual performance
review and your 2013 performance goals.
To date you have made no progress as indicated by your email correspondence
and discussions with me. Moreover, you do not display a willingness to make any
improvement. Your insubordination to me and your lack of respect for your own
subordinates (as indicated by your emails to your staff) substantiate this
observation.
These behaviors cannot be tolerated and once again, this memo is to inform you
that you are being placed on verbal and written warning. Over the next 30 days, I
will review and evaluate your behavior in this manner. I will also work with you
if you require additional support to rectify your conduct. If the aforementioned
behavior and performance persists and/or does not improve, it could result in
further disciplinary action(s), up to and including dismissal (termination).
Def.’s Statement Ex. 16, ECF No. 19-16. This warning, like the first warning, did not change
Ms. Wang’s benefits, salary, or title. Def.’s Statement ¶¶ 47–48; Pl.’s Statement 3, ¶¶ 16–17.
As prefaced in the warning, Mr. Greaves placed Ms. Wang on a thirty-day corrective
action plan at the same meeting in which he issued the warning. Pl.’s Statement 40, ¶ 18; Def.’s
Resp. Statement 11, ¶ 18; see also Def.’s Statement ¶ 64 (indicating that the plan lasted thirty
17
days); Pl.’s Statement 3, ¶ 22 (same). See generally Def.’s Statement Ex. 20, ECF No. 19-20
(reproducing the corrective action plan). The plan outlined goals for Ms. Wang to perform, with
the purported overall purpose of improving her performance so that it would become
“competent.” Am. Compl. ¶ 173; Answer Am. Compl. ¶ 173.
7. OIG Communications and Second OIG Visit (September 22–24, 2013)
On September 22, 2013, during the thirty-day corrective action plan period, Ms. Wang
emailed Special Agent Coulter in WMATA’s OIG about her situation. Pl.’s Statement 41, ¶ 1;
Def.’s Resp. Statement 11, ¶ 1. Ms. Wang told Special Agent Coulter that she had been placed
on a corrective action plan after telling Ms. Audette that she had complained to the OIG. Pl.’s
Statement 41, ¶ 2; Def.’s Resp. Statement 11, ¶ 2. She also told Special Agent Coulter that the
corrective action plan was “reprisal for speaking with the [O]IG” and that she was “being
discriminated against because of [her] age, race and gender.” Pl.’s Statement 41, ¶ 1; Def.’s
Resp. Statement 11, ¶ 1.
In response, Special Agent Coulter told Ms. Wang to seek outside counsel, and
Ms. Wang responded that she had already hired an attorney. Pl.’s Statement 41, ¶ 1; Def.’s Resp.
Statement 11, ¶ 1. Special Agent Coulter also interviewed Ms. Wang a second time, on
September 24, 2013. Pl.’s Statement 41, ¶ 3; Def.’s Resp. Statement 11, ¶ 3. See generally Def.’s
Statement Ex. 15 (reproducing the audio file from Special Agent Coulter’s second interview with
Ms. Wang). During that interview, Ms. Wang stated that she had also contacted WMATA’s
Office of Civil Rights. Pl.’s Statement 41, ¶ 4; Def.’s Resp. Statement 11, ¶ 4.
8. EEOC Charge (October 2, 2013)
Ms. Wang filed a Charge of Discrimination against WMATA with the United States
Equal Employment Opportunity Commission (EEOC) on October 2, 2013. Am. Compl. ¶ 24;
18
Answer Am. Compl. ¶ 24; Pl.’s Statement 41–42, ¶ 6; Def.’s Statement 11, “Page 41 of 63,” ¶ 6.
Her Charge alleged that WMATA subjected her to ongoing discrimination because of her race
and gender, and that WMATA was retaliating against her because she opposed the
discrimination. Pl.’s Statement 41–42, ¶ 6; Def.’s Statement 11, “Page 41 of 63,” ¶ 6.
9. Termination (October 10, 2013)
On October 10, 2013, WMATA terminated Ms. Wang’s employment as WMATA’s
Financial Control Manager. Def.’s Statement ¶¶ 1, 72; Pl.’s Statement 1, ¶ 1; id. at 3, ¶ 23.
Ms. Wang’s termination letter cited Ms. Wang’s unsatisfactory performance on her corrective
action plan:
The results of the [corrective action plan] in summary are as follows: Two of ten
deliverables (Items number 1 and 6) met the expected deadline. One ongoing goal
(Item number 2) has not been met. Moreover, all but items 1 and 6 required
repeated instruction and direction on how to complete. Additionally, when
deliverables were re-submitted for rating, the work products did not meet the
requirements.
Def.’s Statement Ex. 1, ECF No. 19-3. At the time of Ms. Wang’s termination, problems with
the IFO Project persisted. Am. Compl. ¶ 120; Answer Am. Compl. ¶ 120; see also supra
Parts II.B.2, II.C.3 (recounting the problems WMATA experienced with the IFO Project).
WMATA received a copy of Ms. Wang’s EEOC Charge after Ms. Wang was terminated. Def.’s
Statement ¶ 61; Pl.’s Statement 3, ¶ 21.
E. Procedural History
After exhausting administrative remedies, Ms. Wang filed suit against WMATA in this
Court. See Am. Compl. ¶¶ 24–27; Answer Am. Compl. ¶¶ 24–27. Ms. Wang claims that
WMATA violated Title VII of the Civil Rights Act of 19645 by discriminating against her on the
5
Pub. L. No. 88-352, Title VII, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C.
§§ 2000e–2000e-17).
19
basis of her national origin, race, and sex. See Am. Compl. ¶¶ 195–210. She further claims that
WMATA violated Title VII by retaliating against her in response to her opposition to that
discrimination. See id. ¶¶ 211–220. Lastly, Ms. Wang claims that WMATA retaliated against her
in violation of the whistleblower provision of the American Recovery and Reinvestment Act of
2009 (ARRA).6 See Am. Compl. ¶¶ 221–230.
WMATA now moves for summary judgment on all of Ms. Wang’s claims. See Def.’s
Mot. Summ. J., ECF No. 19. For Ms. Wang’s Title VII discrimination and retaliation claims,
WMATA argues that, among other reasons for summary judgment, WMATA had legitimate
non-discriminatory reasons for terminating Ms. Wang’s employment: namely, a “history of
performance complaints,” which included Ms. Wang’s failure, in WMATA’s view, to meet the
expectations of her position as expressed in her final corrective action plan. See Def.’s Mem. P.
& A. Supp. Def.’s Mot. Summ. J. 8–30, ECF No. 19-1 [hereinafter Def.’s Mem.]. For
Ms. Wang’s ARRA retaliation claim, WMATA argues that (1) Ms. Wang cannot establish that
any whistleblowing disclosures she made were related to funds specified in the ARRA,
(2) Ms. Wang did not make disclosures that the ARRA’s whistleblower provision protects, and
(3) Ms. Wang cannot show that any protected disclosures caused her termination. See id. at
30–38. Before discussing the merits of WMATA’s summary judgment motion, the Court reviews
the applicable legal standard.
III. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary
judgment if “the movant shows that there is no genuine dispute as to any material fact and the
6
Pub. L. No. 111-5, § 1553, 123 Stat. 115, 297–302.
20
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is one
capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380
(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
The principal purpose of summary judgment is to determine whether there is a genuine
need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden of identifying
portions of the record that demonstrate the absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant must point to
specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P.
56(c)(1); Celotex, 477 U.S. at 324. The non-movant may not rest upon mere allegations or
denials but must instead present affirmative evidence. Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987) (citing Anderson, 477 U.S. at 257).
In considering a motion for summary judgment, a court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007). All underlying facts and inferences must be analyzed in the light most favorable to the
non-movant. See Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without
any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999).
21
IV. ANALYSIS
The Court addresses Ms. Wang’s Title VII claims before turning to her ARRA retaliation
claim.
A. Title VII Claims
1. Governing Principles
Under Title VII, employers may not “refuse to hire,” “discharge,” or “otherwise . . .
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment” because of the individual’s “race . . . , sex, or national origin.” 42
U.S.C. § 2000e-2(a). Title VII also contains an antiretaliation provision, which “forbids
employer actions that ‘discriminate against’ an employee . . . because he has ‘opposed’ a practice
that Title VII forbids or has ‘made a charge . . . or participated in’ a Title VII ‘investigation,
proceeding, or hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(quoting 42 U.S.C. § 2000e-3(a)).
In this circuit, two key cases outline the litigation framework for Title VII discrimination
and retaliation cases: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and Brady v.
Office of the Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). The three-part McDonnell
Douglas burden-shifting framework applies when a Title VII plaintiff offers only indirect
evidence of discrimination or retaliation at summary judgment. See Taylor v. Small, 350 F.3d
1286, 1292 (D.C. Cir. 2003) (applying the framework to a discrimination claim); Morgan v. Fed.
Home Mortg. Corp., 328 F.3d 647, 650–51 (D.C. Cir. 2003) (applying the framework to a
retaliation claim, in addition to a discrimination claim). Under McDonnell Douglas, the plaintiff
has the initial burden of production to establish a prima facie case of discrimination; if she does,
then the employer must articulate a legitimate, non-discriminatory reason for its action; and if it
22
does, then the plaintiff must receive an opportunity to show that the employer’s reason was a
pretextual cover for discrimination. 411 U.S.at 802–05. Although McDonnell Douglas shifts the
burden of production between the parties, the plaintiff retains the burden of persuasion. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993).
In the D.C. Circuit, Brady streamlines the McDonnell Douglas framework when, in
considering a motion for summary judgment, the Court immediately observes that a plaintiff
suffered an “adverse employment action” and that her employer asserted a “legitimate,
non-discriminatory reason” for the alleged discrimination or retaliation. See 520 F.3d at 494; see
also Jones v. Bernanke, 557 F.3d 670, 678–79 (D.C. Cir. 2009) (explaining that Brady’s
“principles apply equally to retaliation claims”). That is the case here: Ms. Wang suffered an
adverse employment action when WMATA terminated her employment. See Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (listing possible adverse employment actions, and
including “firing” as one of them (quoting Taylor, 350 F.3d at 1293)). By arguing that
Ms. Wang’s termination flowed from Ms. Wang’s history of inadequate work performance,
WMATA has asserted a legitimate, non-discriminatory reason for Ms. Wang’s termination. See
Def.’s Mem. 23–30 (arguing that Ms. Wang had “a history of performance complaints at
WMATA”).
In this case, therefore, Brady directs the Court to forgo McDonnell Douglas and instead
to resolve one central question: “Has the employee produced sufficient evidence for a reasonable
jury to find that the employer’s asserted non-discriminatory or [non-retaliatory] reason was not
the actual reason and that the employer intentionally discriminated against the employee on the
basis of race . . . , sex, or national origin [or retaliated against her because of her protected Title
VII activity]?” Brady, 520 F.3d at 494; see also McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C.
23
Cir. 2012) (adopting Brady’s formulation in a retaliation case). Phrased in terms of the facts of
this case, the Court must consider whether Ms. Wang has produced sufficient evidence for a
reasonable jury to find (1) that Ms. Wang’s work performance was “not the actual reason” for
her termination and (2) that WMATA intentionally discriminated against Ms. Wang on the basis
of her race, sex, or national origin, or retaliated against her because she opposed a practice made
unlawful under Title VII. To answer these questions, the Court must examine the totality of the
evidence and ask “whether the jury could infer discrimination [or retaliation] from the
combination of (1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to
attack the employer’s proffered explanation for its actions; and (3) any further evidence of
discrimination [or retaliation] that may be available to the plaintiff . . . or any contrary evidence
that may be available to the employer.” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir.
2012) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)); see
also Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (adopting this
formulation for both discrimination and retaliation claims).
2. Discrimination Claims
WMATA argues that it should receive summary judgment on Ms. Wang’s discrimination
claims for three principal reasons: (1) many of WMATA’s allegedly discriminatory acts are not
adverse employment actions on which a Title VII plaintiff can base her discrimination claims,
(2) Ms. Wang lacks the similarly situated comparators that WMATA contends are necessary to
establish Ms. Wang’s discrimination claims, and (3) WMATA had legitimate,
non-discriminatory reasons for terminating Ms. Wang. See Def.’s Mem. 8–17, 23–30. Ms. Wang
responds by arguing that she can establish a prima facie case of discrimination and that
WMATA’s stated reasons for her termination are a pretext for discrimination. See Pl.’s Mem. P.
24
& A. Opp’n Def.’s Mot. Summ. J. 26–32, ECF No. 20 [hereinafter Pl.’s Opp’n]. Before
addressing the arguments about WMATA’s legitimate, non-discriminatory reasons for
Ms. Wang’s termination and whether those reasons were pretextual, the Court first addresses the
arguments relating to a prima facie case of discrimination.
a. Prima Facie Case: Adverse Employment Action
As discussed earlier, under Brady v. Office of the Sergeant at Arms, 520 F.3d 490 (D.C.
Cir. 2008), the Court need not examine whether Ms. Wang has made out a prima facie case of
discrimination, because Ms. Wang suffered an adverse employment action (she was terminated)
and WMATA has asserted a legitimate, non-discriminatory reason for her termination
(Ms. Wang’s history of inadequate work performance). See supra Part IV.A.1; see also Jones v.
Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (explaining that, in these circumstances, the Court
“need not—and should not—decide whether the plaintiff actually made out a prima facie case”
(quoting Brady, 520 F.3d at 494)). Of course, in a case in which an employer’s action does not
clearly qualify as an adverse employment action, “the Court still first must determine whether
plaintiff suffered an adverse employment action.” Donovan v. Powell, No. 107913, 2016 WL
107913, at *4 (D.D.C. Jan. 8, 2016) (internal quotation mark omitted) (quoting Adesalu v.
Copps, 606 F. Supp. 2d 97, 103 (D.D.C. 2009)); see also Brady, 520 F.3d at 494 (indicating that,
even though a plaintiff need not establish a prima facie case to defend against a motion for
summary judgment, she still must show that she “has suffered an adverse employment action”).
WMATA does not dispute that terminating Ms. Wang was an adverse employment
action. See Def.’s Mem. 9 n.2 (“WMATA concedes that termination is an adverse employment
action.”). And Ms. Wang does not, in her summary judgment briefing, offer other WMATA
actions as adverse employment actions on which she bases her discrimination claims. See Pl.’s
Opp’n 27 (indicating that Ms. Wang established an adverse employment action because
25
“WMATA undoubtedly terminated her”). By declining to respond to WMATA’s argument about
other potential adverse employment actions in this case, Ms. Wang has conceded the issue to
WMATA. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003) (“[W]hen a plaintiff files an opposition to a dispositive motion and addresses only
certain arguments raised by the defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.”); Pl.’s Opp’n 26–32 (declining to address WMATA’s argument).
The parties therefore appear to agree that Ms. Wang’s firing is the only adverse employment
action on which she bases her Title VII discrimination claims. Therefore, the Court proceeds
under the assumption that (1) any verbal statements Mr. Greaves made to Ms. Wang,
(2) Ms. Wang’s written warnings, and (3) Ms. Wang’s corrective action plan are not on their
own adverse employment actions on which Ms. Wang bases her discrimination claims. See
generally Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (explaining that, to be an
adverse employment action, an employer’s action must effect significant and objectively tangible
harm); Pl.’s Statement 3, ¶¶ 13, 17 (conceding that Ms. Wang “sustained no change in benefits,
salary, or title” from receiving written warnings); id. at 25–30 (omitting any allegation that
Ms. Wang suffered significant or tangible harm from Mr. Greaves verbal statements); id. at
35–40 (same, for Ms. Wang’s receipt of her corrective action plan).
But even though those three categories of WMATA actions are not adverse employment
actions on their own, WMATA incorrectly contends that they “therefore must be disregarded
from consideration of [Ms. Wang’s] discrimination claims.” Def.’s Mem. 13. Instead, “[w]hen
determining whether summary judgment . . . is warranted for the employer, the court considers
all relevant evidence presented” by the parties. Brady, 520 F.3d at 495 (emphasis added). “All”
relevant evidence means
26
any combination of (1) evidence establishing the plaintiff’s prima facie case;
(2) evidence the plaintiff presents to attack the employer’s proffered explanation
for its actions; and (3) any further evidence of discrimination that may be
available to the plaintiff, such as independent evidence of discriminatory
statements or attitudes on the part of the employer.
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C. Cir. 2006) (quoting Holcomb v.
Powell, 433 F.3d 889, 896 (D.C. Cir. 2006)). “[T]he court reviews each of the three relevant
categories of evidence—prima facie, pretext, and any other—to determine whether they ‘either
separately or in combination’ provide sufficient evidence for a reasonable jury to infer
[discrimination or] retaliation.” Jones, 557 F.3d at 679 (quoting Waterhouse v. District of
Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002)).
Here, Mr. Greaves’s statements, Ms. Wang’s written warnings, and Ms. Wang’s
corrective action plan are at least “independent evidence of discriminatory statements or attitudes
on the part of the employer.” Mastro, 447 F.3d at 855 (quoting Holcomb, 433 F.3d at 896). And,
in fact, one could argue that they were building blocks that culminated in the termination.
Accordingly, the Court will not disregard these actions, but instead will consider them as part of
the evidence that the Court must review to determine whether a reasonable jury could infer
discrimination against Ms. Wang on the basis of her race, sex, or national origin. See infra Part
IV.A.2.c (undertaking this inquiry).
b. Prima Facie Case: Comparators
Before resolving the “central question” required by Brady v. Office of the Sergeant at
Arms, 520 F.3d 490, 494 (D.C. Cir. 2008), the Court addresses WMATA’s argument that
Ms. Wang cannot show that “other similarly situated employees [that were] not members of her
protected class[] did not suffer similar adverse actions.” Def.’s Mem. 13 (brackets omitted)
(quoting Mack v. Strauss, 134 F. Supp. 2d 103, 114 (D.D.C. 2001)). WMATA contends that,
27
“[b]ecause [Ms. Wang] has no comparators, this Court should enter summary judgment” for
WMATA on Ms. Wang’s discrimination claims. Id. at 17.
To be sure, to make out a prima facie case of discrimination, the plaintiff may
“demonstrate (1) that she is a member of a protected class; (2) that she was similarly situated to
an employee who was not a member of the protected class; and (3) that she and the similarly
situated person were treated disparately.” Holbrook v. Reno, 196. F.3d 255, 261 (D.C. Cir. 1999).
“But this is not the only way” in which a plaintiff can make out a prima facie case of
discrimination. George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005). Furthermore, as
mentioned before, when the plaintiff has suffered an adverse employment action and the
employer has advanced a legitimate, non-discriminatory reason for that action, then “the question
whether the employee actually made out a prima facie case is ‘no longer relevant’ and thus
‘disappears’ and ‘drops out of the picture.’” Brady, 420 F.3d at 493–94 (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993)). Because that is the case here, see supra
Part IV.A.1, Ms. Wang need not produce similarly situated comparators for two reasons: (1) she
can create an inference of discrimination to make out a prima facie case by other means; and
(2) given WMATA’s stated legitimate, non-discriminatory reasons for terminating Ms. Wang,
the Court need not decide whether Ms. Wang actually made out a prima facie case of
discrimination. See Brady, 420 F.3d at 494 (explaining that, in these circumstances, “the district
court need not—and should not—decide whether the plaintiff actually made out a prima facie
case”). For these reasons, WMATA’s comparator-based argument is incorrect under the law, and
the Court will not consider it further.
28
c. Whether a Reasonable Jury Could Infer Discrimination:
WMATA’s Non-Discriminatory Reasons for Termination and Ms. Wang’s Evidence
that those Reasons Were a Pretextual Cover for Discrimination
The Court turns, at last, to the “central question” it must resolve in considering
WMATA’s motion for summary judgment on Ms. Wang’s discrimination claims: whether
Ms. Wang has produced sufficient evidence for a reasonable jury to find (1) that Ms. Wang’s
work performance was “not the actual reason” for her termination and (2) that WMATA
intentionally discriminated against Ms. Wang on the basis of her race, sex, or national origin. See
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Ms. Wang can meet
her burden of production in multiple ways. Id. at 495. She can “suggest[] that the employer
treated other employees of a different race . . . , sex, or national origin more favorably,” or
“attempt to demonstrate that [WMATA] is making up or lying about the underlying facts that
formed the predicate for the employment decision.” Id.7 Ms. Wang can also point to “changes
and inconsistencies in the stated reasons for the adverse action; the employer’s failure to follow
established procedures or criteria; the employer’s general treatment of minority employees; or
discriminatory statements by the decisionmaker.” Id. at 495 n.3. She “might also establish
pretext with evidence that a factual determination underlying an adverse employment action is
egregiously wrong,” or with evidence that “[a]n employer’s investigation . . . is so unsystematic
7
A jury cannot conclude that the employer is lying about the underlying facts, however,
when “the employer’s stated belief about the underlying facts is reasonable in light of the
evidence.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008).
Likewise, an employer can prevail on its motion for summary judgment if it can “demonstrate
the absence of a genuine dispute in the record over whether [the employer] honestly and
reasonably believed in” the legitimate, non-discriminatory reasons it offered for a plaintiff’s
termination. George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005). Because of the
circumstances surrounding Ms. Wang’s corrective action plan, including Mr. Greaves’s
statements to Ms. Wang, as discussed below, the Court finds that neither of these situations
applies here.
29
and incomplete that a factfinder could conclude that the employer sought, not to discover the
truth, but to cover up its own discrimination.” Burley v. Nat’l Passenger Rail Corp., 801 F.3d
290, 296 (D.C. Cir. 2015) (first citing Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183
(D.C. Cir. 1996); then citing Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C. Cir.
2006)).
In Ms. Wang’s summary judgment brief, she contends that a “mosaic of circumstantial
evidence, . . . viewed in the light most favorable to [Ms.] Wang, permits a jury to reject
WMATA’s proffered reasons for firing [Ms.] Wang and [to] infer discrimination based on race,
national origin, and gender.” Pl.’s Opp’n 32. Ms. Wang’s evidence includes
(1) Ms. Wang’s contention that Mr. Greaves “had no substantive basis for putting
her on a [corrective action plan]”;
(2) Ms. Wang’s assertion that the corrective action plan “had unattainable,
unreasonable, unmeasurable, and inappropriate goals,” including goals with
“due dates only hours after [Mr.] Greaves issued the [corrective action plan]”;
(3) WMATA’s alleged “failure . . . to adhere to its own policies” for its Human
Resources department’s involvement “in drafting, reviewing, and insuring the
appropriateness and fairness of a [corrective action plan]”;
(4) Mr. Greaves’s “denial that he screamed ‘You’re fired’ at [Ms.] Wang on
September 6, 2013,” even though another WMATA employee stated that he
overheard Mr. Greaves’s outburst;
(5) Mr. Greaves’s “refusal to admit that he had innocuous conversations with
[Ms.] Wang about Chinese cooking and her visits to family in China”;
(6) Mr. Greaves’s references to Ms. Wang’s communication skills and to “the
challenges she faced as a ‘foreigner’ who was not a native English speaker”;
and
(7) Statements that Mr. Greaves made when he tried to “bully” Ms. Wang “in an
aggressive and threatening manner [that] he would not have used in dealing
with a male colleague.”
30
Id. at 31–32. The Court first turns to the evidence about Ms. Wang’s corrective action plan
(items (1), (2), and (3) above) before discussing evidence about Mr. Greaves’s statements (items
(4), (5), (6), and (7) above).
When an employee fails to improve her work performance and does not successfully
complete a corrective action plan, her employer can justifiably terminate her based on that
unsuccessful performance. See, e.g., Brown v. Vance–Cooks, 920 F. Supp. 2d 61, 67–68 (D.D.C.
2013) (noting that the plaintiff failed to dispute his lack of improvement during his performance
improvement plan period, and concluding that his omission meant that he could not “demonstrate
[the] falsity of the criticisms of his performance”). In a typical case with these facts, the
employer’s reasons are not a pretextual cover for discrimination. See, e.g., id. at 68 (finding that
the plaintiff had “simply not proven that [the employer’s] reasons were pretext”).
Here, however, Ms. Wang implies that the corrective action plan itself flowed from
Mr. Greaves’s allegedly discriminatory animus. See Am. Compl. ¶ 206 (alleging discrimination
because Mr. Greaves “harshly . . . disciplined” Ms. Wang); Pl.’s Opp’n 31–32 (contending that
the correction action plan was unwarranted and that its terms were unreasonable); Wang Dep.
64:12–65:1, Pl.’s Statement Ex. 21, ECF No. 20-23 (“[T]he first warning, the second warning,
the corrective action plan[—]I think they’re all based on discrimination.”). Because the plan
itself could have been discriminatory, the Court follows the D.C. Circuit’s directive and will not
consider it as evidence that Ms. Wang was performing below WMATA’s legitimate
expectations:
The conduct alleged by a Title VII plaintiff to be tainted by the employer’s
discrimination cannot serve as evidence that the employee was performing below
the employer’s legitimate expectations. Otherwise, any employer could routinely
evade Title VII’s protections by accusing an employee of misconduct, firing [her],
and claiming that the employee failed to demonstrate a prima facie case of
31
discriminatory termination because [her] alleged misconduct constituted
performance below legitimate expectations.
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 853–54 (D.C. Cir. 2006); see also id. at 856
(explaining that employers cannot claim “that the mere fact that they conducted an investigation
and fired [the employee] as a result should insulate their actions from further scrutiny,” when
“sufficient evidence exists for a jury to conclude . . . that discriminatory treatment may have
permeated the investigation itself”).
Accordingly, in reviewing the corrective action plan, its terms, and how WMATA
monitored Ms. Wang’s performance on the corrective action plan, the Court analyzes whether
that evidence calls into question the plan’s fairness and impartiality. See generally id. at 855–57
(assessing whether an employer’s pre-termination investigation into an employee’s conduct
appeared fair and impartial). If a reasonable jury could find that the WMATA personnel
monitoring the corrective action plan appear not to be credible, or that the overall plan appears to
lack fairness or impartiality, the Court may not credit WMATA’s view of the plan over
Ms. Wang’s. See id. at 857 (“Although a jury may ultimately decide to credit the version of the
events described by the employer over that offered by the employee, this is not a basis upon
which a court may rest in granting a motion for summary judgment.” (brackets and internal
quotation marks omitted) (quoting George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005))).
Along these lines, the Court cannot grant summary judgment if a reasonable jury could conclude
that WMATA’s assessment of Ms. Wang’s conduct was “an inquiry colored by . . .
discrimination.” See id. (reversing the district’s order of summary judgment after finding that a
jury could conclude that the employer’s investigation was unfair, partial, and discriminatory).
On the evidence presented in this case, the Court determines that a reasonable jury could
conclude that Ms. Wang’s corrective action plan was unfair, partial, and created solely to
32
accelerate her termination. The evidence reveals several circumstances in connection with the
plan that were potentially unfair to Ms. Wang.
First, Mr. Greaves contemplated terminating Ms. Wang’s employment as early as
September 5, 2013, even though he did not issue Ms. Wang her corrective action plan until
September 11, 2013.8 In an email on September 5, Mr. Greaves not only recommended dismissal
“if there is another incident,” but he also expressed his lack of faith in any corrective action plan:
“I don’t think placing the employee on a [corrective action plan] is the solution.” Def.’s
Statement Ex. 12/13, at 487.9 These September 5 statements would support a reasonable jury’s
conclusion that Ms. Wang’s later corrective action plan was simply a ploy by which Mr. Greaves
could create a reason to terminate her—i.e., that he was setting her up to fail.10
Second, Ms. Wang received her corrective action plan on September 11, 2013, but the
plan made four of the plan’s ten performance goals due on that same day. See Def.’s Statement
8
Compare Def.’s Statement Ex. 12/13, at 487–88, ECF No. 19-14 (reproducing emails
Mr. Greaves sent on September 5, 2013, in which he wrote that his “recommendation is
dismissal if there is another incident” and that “I recommend termination should [Ms. Wang’s]
actions continue”); Def.’s Statement ¶ 36 (“On September 5, 2013, Mr. Greaves proposed
Ms. Wang’s termination if another incident occurred.”), with id. ¶ 64 (stating that Mr. Greaves
issued Ms. Wang her corrective action plan on September 11, 2013); Pl.’s Statement ¶ 22 (same).
9
To be sure, Mr. Greaves’s email also discusses what he perceives to be Ms. Wang’s
unsatisfactory work performance. See Def.’s Statement Ex. 12/13, at 487. But because other
evidence about Ms. Wang’s performance rebuts Mr. Greaves’s opinion, his other September 5
statements can nonetheless allow a jury to question the fairness of Ms. Wang’s corrective action
plan. See George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005) (explaining that, even if the
record contains evidence supporting an employer’s allegations about an employee’s substandard
performance, the employer’s views can still be pretextual if evidence exists to rebut the
employer’s evidence); see, e.g., Julia Dep. 20:21–23:18, Pl.’s Statement Ex. 6, ECF No. 20-8
(rebutting Mr. Greaves’s views of Ms. Wang’s performance); Vu Dep. 14:12–17:22, Pl.’s
Statement Ex. 4, ECF No. 20-6 (same).
10
Ms. Wang takes that view of the corrective action plan. See Def.’s Statement Ex. 15, at
19:16–20:00 (reproducing the audio file from Ms. Wang’s September 24, 2013 interview with
WMATA’s OIG, in which Ms. Wang states that Mr. Greaves issued the corrective action plan so
that Ms. Wang was “ready to be fired”); see also id. ¶ 58 (discussing the audio files).
33
Ex. 20, at 1, 5–11, ECF No. 19-20 (reproducing Ms. Wang’s corrective action plan, and showing
that the first four performance goals were due on September 11, 2013). Although evidence shows
that WMATA later specified that one of those four goals had an “ongoing” due date,11 and even
though two of those four goals had been requested or partially completed before September 11,12
a reasonable jury could still question the impartiality of a corrective action plan that set four due
dates on the same day that Ms. Wang received the plan. See Mastro v. Potomac Elec. Power Co.,
447 F.3d 843, 857 (D.C. Cir. 2006) (explaining that, when procedural flaws accompany an
employer’s pre-termination procedures, the fairness and impartiality of those procedures are
“genuine issues of material fact properly assigned to the jury”). And evidence showing that
Ms. Wang received the plan at a 4:30 PM meeting on September 11 might make the plan seem
even more unfair to the jury, because Ms. Wang would have had only the rest of that afternoon to
complete four of the ten performance goals on her corrective action plan.13 The plan’s due dates
support the view that the plan, being unfair, was merely a pretext for discrimination.
Third, Ms. Wang’s corrective action plan shows that Mr. Greaves evaluated her
performance based, at least in part, on subjective criteria. “Although ‘employers may of course
11
Compare Pl.’s Statement Ex. 24, at 3, ECF No. 20-26 (reproducing an initial version of
the corrective action plan, in which the second deliverable was due on September 11), and id. at
40, ¶ 18 (indicating that Exhibit 24 reproduces the initial version of the plan), with Def.’s
Statement Ex. 20, at 6 (noting that, in a version of the plan that Ms. Audette and Mr. Greaves
signed on October 10, 2013, the due date for the second deliverable was “ongoing”).
12
See Def.’s Statement Ex. 20, at 7 (indicating that the third deliverable was “requested
in June 2013” and that the fourth deliverable “was already in progress at the start of the
[corrective action plan]”).
13
See Wang Dep. 238:12–242:1, Pl.’s Statement Ex. 1, ECF No. 20-3 (describing how
Ms. Wang received her corrective action plan at a 4:30 PM meeting with Mr. Greaves and
WMATA Employee Relations Officer Belinda Press); Pl.’s Statement Ex. 22, ECF No. 20-24
(reproducing emails between Ms. Press and Ms. Wang that discussed the 4:30 PM meeting on
September 11, 2015).
34
take subjective considerations into account in their employment decisions,’ . . . heavy reliance on
subjective criteria may be used to ‘mask’ or ‘camouflage’ discrimination.” Hamilton v. Geithner,
666 F.3d 1344, 1356 (D.C. Cir. 2012) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298
(D.C. Cir. 1998) (en banc)). The Court accordingly treats the subjective explanations for
Ms. Wang’s performance on her corrective action plan “with caution.” Id. Viewing
Mr. Greaves’s comments on Ms. Wang’s performance from this perspective, the Court notes that
Ms. Wang’s performance on one deliverable rested entirely on subjective considerations, and
that Mr. Greaves’s criticisms about Ms. Wang’s performance often rested on subjective
considerations.14 Because of subjective considerations’ significant role in Mr. Greaves’s
evaluation of Ms. Wang’s performance, a reasonable jury could suspect that discriminatory
animus biased Mr. Greaves’s evaluation—or, at least, that a desire to terminate Ms. Wang made
Mr. Greaves’s evaluation “inexplicably unfair.” Mastro, 447 F.3d at 855; see Def.’s Statement
Ex. 12/13, at 487–88 (showing that Mr. Greaves contemplated terminating Ms. Wang as early as
September 5, 2013).
Fourth, evidence in the record supports Ms. Wang’s contention that some of her
corrective action plan’s performance goals were not within her normal work responsibilities. See
Pl.’s Opp’n 20 (“[Ms.] Wang . . . had not previously completed certain tasks outlined in the
14
See Def.’s Reply Pl.’s Opp’n Def.’s Mot. Summ. J. 16–17, ECF No. 21 [hereinafter
Def.’s Reply] (explaining that the final corrective action plan, as reproduced in WMATA’s
Exhibit 20, contains Mr. Greaves’s notes and “deliberative process for all aspects of the
[corrective action plan]”); Def.’s Statement Ex. 20, at 6 (reproducing Ms. Wang’s second
corrective action plan performance goal, which required Ms. Wang to “[a]lways communicate
with WMATA employees and business partners in a professional, respectful, and effective
manner”); id. at 6–11 (criticizing Ms. Wang for using “incoherent” language; failing “to exhibit a
higher order of understanding, thinking, and expression”; failing “to display deductive reasoning
with precision and accuracy”; submitting a message that “lacked flow”; failing to
“understand . . . consequences”; and failing “to take initiative and seek the support she needs”).
35
[corrective action plan] because they were not assigned to her.”). An email from Lori
Lloyd-Smith, another WMATA employee, indicates that updating the quarterly closing checklist
(the fourth goal on Ms. Wang’s corrective action plan) was previously Ms. Lloyd-Smith’s
responsibility.15 And even though Ms. Wang’s seventh goal instructed her to “ensur[e] all
balance sheet accounts and related revenue and expense accounts [were] reconciled” for
WMATA’s quarterly financial statements, WMATA’s quarterly financial statement closing
schedule shows that, for WMATA accounts not assigned to the General Ledger branch, other
WMATA employees were responsible for performing those tasks .16 An email from Mr. Greaves
supports Ms. Wang’s contention that Ms. Lloyd-Smith, not Ms. Wang, was previously
responsible for preparing “P[rovided] B[y] C[lient] lists” for audits (the eighth goal on
Ms. Wang’s corrective action plan).17 Finally, Ms. Wang’s last goal lists duties relating to federal
forms, but emails show that another WMATA employee had previously performed some of those
15
Compare Def.’s Statement Ex. 20, at 7 (requiring Ms. Wang to “[e]nsure . . . the
quarterly closing checklist [was] updated”), with Pl.’s Statement Ex. 25, ECF No. 20-27
(reproducing an email in which Ms. Lloyd-Smith sent Ms. Wang the “Q3 checklist” in response
to Mr. Greaves’s directives).
16
Compare Def.’s Statement Ex. 20, at 9 (requiring Ms. Wang to “ensur[e] all balance
sheet accounts and related revenue and expense accounts [were] reconciled” for WMATA’s
quarterly financial statements), with Pl.’s Statement Ex. 26, at 267–68, ECF No. 20-28
(reproducing a document titled “WMATA Quarterly Financial Statement Closing Schedule,”
which shows that many individuals besides Ms. Wang were also responsible for reconciling
accounts for the quarterly financial statements).
17
See Pl.’s Statement 49, ¶ 3 (“WMATA had assigned Lori Smith to this task.”).
Compare Def.’s Statement Ex. 20, at 10 (requiring Ms. Wang to “ensur[e] the General Ledger
requirements for the PBC lists for the Basic Financial Statements audit, Single audit, and
N[ational] T[ransit] D[atabase] audit are completed”), with Pl.’s Statement Ex. 27, ECF
No. 20-29 (reproducing an email from Mr. Greaves to Ms. Lloyd-Smith and Ms. Wang, in which
Mr. Greaves declares that “[Ms. Wang] will be responsible for ensuring all PBC items for the
general ledger area for the Basic Financial Statements audit, Single audit, and NTD audit are
completed,” and instructs Ms. Wang to “follow up with [Ms. Lloyd-Smith] . . . to [see] what
needs to be done”).
36
duties.18 Although these performance goals do fall within the duties outlined in Ms. Wang’s job
description, see Def.’s Statement Ex. 2, ECF No. 19-4 (requiring the Financial Control Manager
to monitor WMATA’s compliance with National Transit Database requirements, to coordinate
responses to audits, and to manage preparation of financial statements), Ms. Wang has explained
that, when WMATA hired Ms. Wang, her supervisor told her that not all of the duties in the job
description fell within Ms. Wang’s responsibilities, see Wang Dep. 24:13–25:12, Pl.’s Statement
Ex. 1, ECF No. 20–3. Regardless, even if Mr. Greaves could have reasonably expected
Ms. Wang to perform all the corrective action plan’s performance goals, a reasonable jury could
still find the plan unfair because (1) Ms. Wang had to assume responsibilities that others had
previously performed, and (2) she had to do so in a short period of time. See, e.g., Def.’s
Statement Ex. 20, at 1, 7, 9 (making Ms. Wang’s fourth performance goal due on September 11,
the first day of the corrective action plan period, and making her seventh performance goal due
on September 16, less than a week after the plan period began).
From the evidence about all these circumstances surrounding Ms. Wang’s corrective
action plan, a reasonable jury could conclude that the plan was so “inexplicably unfair” that it
was a pretext for discrimination. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855–57
(D.C. Cir. 2006).19 Put another way, a reasonable jury could find that, by relying on Ms. Wang’s
18
Compare Def.’s Statement Ex. 20, at 11 (requiring Ms. Wang to “ensur[e] the
[National Transit Database (NTD)] F10 form . . . is completed” and to “[r]econcile the Operating
results . . . to the [Schedule of Expenditures of Federal Awards (SEFA)] & [Federal Financial
Report (FFR)]”), with Pl.’s Statement Ex. 28, at 84, ECF No. 20-30 (reproducing an email in
which WMATA employee Panela Reed discusses how she “reconcile[ed] the NTD Form F-10 to
SEFA”).
19
Even if Ms. Wang’s corrective action plan does not, standing alone, rise to the level of
being “inexplicably unfair,” Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C. Cir.
2006), the Court finds that the corrective action plan, combined with the statements Mr. Greaves
made to Ms. Wang, provides sufficient evidence from which a reasonable jury could infer
discrimination. The Court discusses statements Mr. Greaves made to Ms. Wang below. Viewing
37
corrective action plan as the basis for her termination, WMATA is “making up or lying about the
underlying facts that formed the predicate” for Ms. Wang’s termination. See Brady v. Office of
the Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008).20
the evidence as a whole, the Court cannot grant WMATA summary judgment on Ms. Wang’s
discrimination claims.
20
In defending the corrective action plan, WMATA asserts that “even if a court believes
that the employer made a poor personnel decision, the court may not second-guess that decision
‘absent demonstrably discriminatory motive.’” Def.’s Reply 18 (quoting Ajisefinni v. KPMG
LLP, 17 F. Supp. 3d 28, 39 (D.D.C. 2014)).
The Court’s discussion here, however, finds that a reasonable jury could consider
Ms. Wang’s corrective action plan, and the circumstances surrounding it, to be evidence of
“demonstrably discriminatory motive.” In doing so, the Court follows D.C. Circuit precedent and
examines whether a reasonable jury could find that the corrective action plan was so
“inexplicably unfair” that it was a pretext for discrimination. Mastro, 447 F.3d at 855–57. If the
jury can infer pretext in this manner, the plan becomes evidence of the employer’s
“demonstrably discriminatory motive.” Cf. Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir.
1982) (concluding that, when the employee failed to prove that the employer’s legitimate,
non-discriminatory reason for its employment decision was pretextual, the court should not
“second guess” that decision “absent demonstrably discriminatory motive”). In light of the
evidence showing that Ms. Wang’s corrective action plan may have been a ruse by which
Mr. Greaves could terminate her, “second-guessing” WMATA’s actions in this case does not
contravene Title VII principles in this Circuit.
The Court’s analysis of Ms. Wang’s corrective action plan recognizes that whether
Ms. Wang “may have met expectations in the past is irrelevant” to whether Mr. Greaves
“believed that [Ms. Wang] was performing adequately when [Mr. Greaves] placed [Ms. Wang]
on the [corrective action plan].” Khan v. Holder, 37 F. Supp. 3d 213, 227 (D.D.C. 2014). The
Court accordingly does not consider Ms. Wang’s argument that, because of Ms. Wang’s previous
satisfactory performance evaluations, Mr. Greaves “had no substantive basis for putting her on a
[corrective action plan].” See Pl.’s Opp’n 31–32 (making that argument).
The Court also does not consider Ms. Wang’s argument that WMATA failed “to adhere
to its own policies regarding the involvement of [WMATA’s human resources department] in
drafting, reviewing, and [e]nsuring the appropriateness and fairness of a [corrective action
plan].” Id. at 32. Ms. Wang has failed to develop this argument, and has therefore waived it,
because she does not allege any particular procedures that the human resources department
should have followed. See id. at 22 (alleging that Ms. Press, a WMATA employee relations
officer, did not suggest changes to the corrective action plan, did not ask Mr. Greaves how he
would monitor Ms. Wang’s progress, did not monitor Ms. Wang’s progress, and was just an
observer of the process—but without mentioning any human resources policies WMATA
violated); id. at 33 (recounting Ms. Wang’s interactions with WMATA’s Office of Civil Rights
and with Ms. Press, again without mentioning any human resources policies); Pl.’s Statement
35–40 (same); see also id. at 31, ¶ 4 (stating that Special Agent Mark Coulter, a WMATA OIG
38
Although the above-referenced evidence of pretext is sufficient to submit Ms. Wang’s
discrimination claims to a jury, see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)
(“The factfinder’s disbelief of the reasons put forward by the defendant . . . may, together with
the elements of the prima facie case, suffice to show intentional discrimination.”), Ms. Wang
provides additional evidence. Apart from the corrective action plan, evidence relating to
Mr. Greaves’s statements and attitudes also supports the idea that WMATA’s legitimate,
non-discriminatory reasons for terminating Ms. Wang are a pretextual cover for discrimination.
To attack WMATA’s legitimate, non-discriminatory reasons for her termination, Ms. Wang may
rely on “evidence of discriminatory statements or attitudes” that Mr. Greaves espoused. See
Mastro, 447 F.3d at 854–55; accord Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998) (en banc). Stray comments lacking “any temporal or substantive relationship” to the
adverse employment action are not evidence of discriminatory intent. Francis v. Perez, 970 F.
Supp. 2d 48, 65 (D.D.C. 2013). But, when statements relate to the bias that the plaintiff alleges,
they substantively relate to the adverse employment action and can show discriminatory intent.
See Talavera v. Shah, 638 F.3d 303, 310 (D.C. Cir. 2011) (applying this principle, even in a
situation in which the manager other than the one responsible for the adverse employment action
made the statements); cf. Harris v. Grp. Health Ass’n, 662 F.2d 869, 873 (D.C. Cir. 1981)
(highlighting how the plaintiff neglected to allege “racial slights or slurs”). And even an
“isolated race-based remark” or “remarks made significantly before the relevant employment
action” can be “probative evidence of a supervisor’s discriminatory attitude” when considered
employee, “explained that WMATA had specific procedures and protocols for terminations
which Greaves did not appear to have followed,” but without mentioning what those procedures
were). See generally Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013)
(“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent
authority, are deemed waived.”).
39
alongside additional evidence. Morris v. McCarthy, No. 14-5074, 2016 WL 3254902, at *7 (D.C.
Cir. June 14, 2016).
As noted before, Ms. Wang suggests that Mr. Greaves made several statements that could
show his discriminatory intent:
(1) Mr. Greaves’s “denial that he screamed ‘You’re fired’ at [Ms.] Wang on
September 6, 2013,” even though another WMATA employee stated that he
overheard Mr. Greaves’s outburst;
(2) Mr. Greaves’s “refusal to admit that he had innocuous conversations with
[Ms.] Wang about Chinese cooking and her visits to family in China”;
(3) Mr. Greaves’s references to Ms. Wang’s communication skills and to “the
challenges she faced as a ‘foreigner’ who was not a native English speaker”;
and
(4) Statements that Mr. Greaves made when he tried to “bully” Ms. Wang “in an
aggressive and threatening manner [that] he would not have used in dealing
with a male colleague.”
Pl.’s Opp’n 32.
The first two statements highlight instances in which Mr. Greaves’s account of events
differs from others’. For those statements, evidence supports Ms. Wang’s assertions about
Mr. Greaves’s and others’ differing opinions.21 The first statement, Mr. Greaves’s alleged
outburst on September 6, 2013, is relevant to Ms. Wang’s discrimination claims because
Mr. Greaves allegedly made it close in time to Ms. Wang’s termination. See Def.’s Statement
Ex. 1, ECF No. 19-3 (showing that WMATA terminated Ms. Wang’s employment about one
21
Compare Greaves Dep. 147:16–149:14, Pl.’s Statement Ex. 3, ECF No. 20-5 (denying
that Mr. Greaves told Ms. Wang that she was fired on September 6, 2013), with Wang Dep.
194:3–7, 206:2–6, 212:10–214:20, Pl.’s Statement Ex. 1, ECF No. 20-3 (recounting how
Mr. Greaves told Ms. Wang that she was fired on September 6, 2013), and Vu Dep. 22:8–24:1,
Pl.’s Statement Ex. 4, ECF No. 20-6 (recalling that, at some point, Mr. Greaves told Ms. Wang
that she was fired). Compare also Greaves Dep. 31:18–32:16 (denying any conversations with
Ms. Wang about her ethnic background), with Wang Dep. 186:2–190:20 (recalling conversations
with Mr. Greaves about Ms. Wang’s Chinese heritage).
40
month later, on October 10, 2013); cf. Francis, 970 F. Supp. 2d at 65 (disregarding an
employer’s comments because, among other things, they lacked a “temporal or substantive”
relationship to the adverse employment action). And, because the second statement addresses
Mr. Greaves’s dubious attempt to deny making any statements in which he acknowledged
Ms. Wang’s ethnic heritage, it is substantively related to Ms. Wang’s race and national origin
discrimination claims. See Talavera, 638 F.3d at 309–10; cf. Francis, 970 F. Supp. 2d at 65.
Ms. Wang can thus use both statements as evidence “that the employer is making up or lying
about the underlying facts” or as evidence of “inconsistencies in the stated reasons for the
adverse action.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 495 & n.3 (D.C. Cir.
2008). And both statements may cast doubt on the credibility of other statements that
Mr. Greaves made about his motivations.
Ms. Wang’s last two sets of statements highlight instances that could suggest that
Mr. Greaves might possess discriminatory attitudes toward foreigners and toward women. As
with the first two statements, evidence—including evidence aside from Ms. Wang’s own
opinions—supports Ms. Wang’s assertions about the last two sets of statements.22 The first of
these statements provides some evidence that Mr. Greaves, in some respects, tied his view of
Ms. Wang’s work performance to her national origin. And the second of these statements
indicates that Mr. Greaves adopted a hostile and aggressive manner with her, but there is no
22
See Def.’s Statement Ex. 9, at 280, ECF No. 19-11 (reproducing Ms. Wang’s 2012
performance evaluation, in which Mr. Greaves states that Ms. Wang “needs to make an avid
effort to enhance her communication skills”); Wang Dep. 176:13–179:6 (recalling how
Mr. Greaves told Ms. Wang that, “[a]s a foreign[er],” Ms. Wang especially needed to work on
her communication); id. at 212:10–215:15, 267:6–15 (recalling how Mr. Greaves “yell[ed] and
scream[ed] in [the] office” and how Ms. Wang “thought that day maybe [Mr. Greaves] would
beat [her]”); Vu Dep. 22:8–24:1 (recalling a conversation between Mr. Greaves and Ms. Wang,
and attributing “shouting and voice raising” to Mr. Greaves).
41
evidence that he did so with any of the men in the office. Because the statements address
Mr. Greaves’s possible bias based on national origin and sex, they relate substantively to
Ms. Wang’s national origin and sex discrimination claims. See Talavera, 638 F.3d at 309–10; cf.
Francis, 970 F. Supp. 2d at 65. As “evidence of discriminatory statements or attitudes on the part
of the employer,” Ms. Wang can rely on them to show Mr. Greaves’s discriminatory intent and
the jury may decide the weight they deserve. Mastro v. Potomac Elec. Power Co., 447 F.3d 843,
855 (D.C. Cir. 2006) (quoting Holcomb v. Powell, 433 F.3d 889, 896 (D.C. Cir. 2006)); see
Talavera, 638 F.3d at 309–10.23
The four sets of statements highlighting Mr. Greaves’s positions and attitudes, combined
with evidence relating to Ms. Wang’s corrective action plan, show that WMATA’s
pre-termination procedures for Ms. Wang may have been “inexplicably unfair,” Mastro, 447
F.3d at 855, and that Mr. Greaves may have harbored discriminatory attitudes, see id. (explaining
that “evidence of discriminatory . . . attitudes” can be evidence on which a jury can infer
discrimination). Based on such evidence together, a reasonable jury could conclude that
Mr. Greaves intentionally discriminated against Ms. Wang on the basis of her race, sex, or
national origin when he terminated her employment. The Court therefore cannot grant WMATA
summary judgment on Ms. Wang’s discrimination claims. See Brady, 520 F.2d at 494.
23
Even though WMATA notes that “Mr. Greaves too is a foreigner,” Def.’s Reply 8, the
Supreme Court has cautioned that, “[b]ecause of the many facets of human motivation, it would
be unwise to presume as a matter of law that human beings of one definable group will not
discriminate against other members of their group,” Castaneda v. Partida, 430 U.S. 482, 499
(1977). In considering Ms. Wang’s evidence, therefore, the Court does not consider
Mr. Greaves’s own status as a foreigner.
42
3. Retaliation Claim
The Court turns next to Ms. Wang’s Title VII retaliation claim. “To prove unlawful
retaliation, a plaintiff must show: (1) that [she] opposed a practice made unlawful by Title VII;
(2) that the employer took a materially adverse action against [her]; and (3) that the employer
took the action ‘because’ the employee opposed the practice.” McGrath v. Clinton, 666 F.3d
1377, 1380 (D.C. Cir. 2012); see also id. at 1380 n.3 (explaining that, “[a]lthough these
[elements] are often described as the elements that a plaintiff must show to establish a ‘prima
facie’ case of retaliation,” they are also the elements that a plaintiff must ultimately prove in
order to win [her] case” (citation omitted)).
In support of summary judgment in its favor on Ms. Wang’s Title VII retaliation claim,
WMATA repeats some arguments it made about Ms. Wang’s discrimination claims and also
makes some retaliation-specific arguments. WMATA argues that
(1) Many of WMATA’s allegedly retaliatory acts are not materially adverse
actions on which a Title VII plaintiff can base her retaliation claim;
(2) Before WMATA terminated Ms. Wang, WMATA lacked awareness of any
activity Ms. Wang took that Title VII protected;
(3) Ms. Wang cannot prove any of her protected activity caused her termination;
and
(4) WMATA had legitimate non-discriminatory reasons for terminating
Ms. Wang.
See Def.’s Mem. at 17–30. In response, Ms. Wang asserts
(1) That she can establish a prima facie case of retaliation under Title VII; and
(2) That a jury could infer retaliation based on direct evidence of Mr. Greaves’s
retaliatory animus, circumstantial evidence showing that WMATA’s non-
discriminatory reasons for Ms. Wang’s termination are pretextual, and how
close in time the events in this case were.
43
See Pl.’s Opp’n 32–37. The Court addresses each of the parties’ arguments in the context of the
three elements Ms. Wang must prove.
a. Opposition to a Practice Made Unlawful Under Title VII
Under Title VII, a plaintiff can establish the first element of a retaliation case in two
ways: (1) by opposing any practice that Title VII makes an unlawful employment practice, or
(2) by making a charge, testifying, assisting, or participating in any manner in a Title VII
investigation, proceeding, or hearing. 42 U.S.C. § 2000e-3(a); accord Borgo v. Goldin, 204 F.3d
251, 255 & n.4 (D.C. Cir. 2000) (recognizing the two ways in which a plaintiff may allege
retaliation). The “opposition clause” protects a broad range of informal actions or statements that
employees make in resistance to actions they reasonably perceive to be discriminatory. See
Crawford v. Metro. Gov’t, 555 U.S. 271, 276–78 (2009) (explaining that “opposition” includes
“tak[ing] no action at all to advance a position beyond disclosing it”); Grosdidier v. Broad. Bd.
of Governors, Chairman, 709 F.3d 19, 24 (D.C. Cir. 2013) (explaining that, if “the
employee-plaintiff . . . [has] a good faith and reasonable belief that the [employer’s] practices are
unlawful,” her “opposition activity may be protected even though the employer’s practices do
not amount to a violation of Title VII”); Truelove v. Trs. of the Univ. of the D.C., 744 F. Supp.
307, 313 (D.D.C. 1990) (“Title VII[] protects from retaliation a far broader scope of activities
than the simple filing of an EEOC charge.”). The “participation clause,” on the other hand,
protects an employee’s actions in relation to “official” or “legal” Title VII proceedings. See
Borgo, 204 F.3d at 255 n.4 (indicating that “official E[qual] E[mployment] O[pportunity]
complaints” fall under the participation clause); Uzoukwu v. Metro. Wash. COG, 130 F. Supp. 3d
403, 416 (D.D.C. 2015) (indicating that the participation clause protects the employee’s “legal
efforts” against perceived discrimination (quoting Harris v. D.C. Water & Sewer Auth., 922 F.
Supp. 2d 30, 34 (D.D.C. 2013))).
44
The parties do not dispute that Ms. Wang never filed a discrimination complaint against
WMATA through WMATA’s internal processes. See Def.’s Statement ¶¶ 49–63 (describing
Ms. Wang’s interactions with WMATA’s Office of Civil Rights without mentioning that
Ms. Wang filed a discrimination complaint); Pl.’s Statement 35–40 (same). Thus, Title VII’s
“participation clause” protects only Ms. Wang’s legal efforts, through external processes, to
combat the discrimination that she perceived. The “participation clause” therefore extends to just
Ms. Wang’s EEOC Charge, filed on October 2, 2013, and her participation in the administrative
and judicial proceedings that the EEOC charge triggered. See Am. Compl. ¶ 24 (indicating that
Ms. Wang filed her EEOC Charge on October 2, 2013); Answer Am. Compl. ¶ 24 (same); see
also Def.’s Statement Ex. 19, ECF No. 19-19 (reproducing the EEOC’s Notice of Charge of
Discrimination, issued to WMATA). Because Ms. Wang lodged an “official EEOC complaint[],”
her EEOC charge was a protected activity under the “participation clause” for Title VII
retaliation cases. Although WMATA contends that it did not receive notice of Ms. Wang’s
EEOC Charge until after her termination, the Court addresses that issue later, in the context of
whether Ms. Wang can establish a causal link between the EEOC Charge and her termination.
See infra Part IV.A.3.c.
The Court now turns to Ms. Wang’s activities at WMATA to determine whether, within
WMATA, she engaged in “opposition” activity that Title VII protects from retaliation. The Court
examines Ms. Wang’s activities at WMATA in three categories. As an initial matter, the Court
finds that Ms. Wang took two actions at WMATA that, by virtue of how clearly they imply
discrimination allegations, receive protection from retaliation under Title VII:
(1) Ms. Wang’s September 6, 2013 email to WMATA OIG Special Agent Mark
Coulter, in which she asked whether Special Agent Coulter knew the contact
information for WMATA’s “EEO office”; and
45
(2) Ms. Wang’s September 22, 2013 email to Special Agent Coulter, in which she
explicitly stated that “[she] believe[d] [that she was] being discriminated
against because of [her] age, race and gender.”
Def.’s Statement Ex. 18, ECF No. 19-18 (reproducing Ms. Wang’s emails). Because “[n]ot every
complaint garners its author protection under Title VII,” a plaintiff in a retaliation case “must in
some way allege unlawful discrimination” to engage in protected Title VII activity. Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). Here, Ms. Wang’s emails to Special Agent
Coulter meet that standard and do allege discrimination: first indirectly, by seeking information
about WMATA’s internal office responsible for handling discrimination complaints; and then
directly, by stating that she believed that she was “being discriminated against.” See Def.’s
Statement ¶ 52 (“If a matter concerns discrimination of any kind, it is referred to the EEO
office”); Pl.’s Statement 35–40 (not disputing that the EEO office typically handles
discrimination matters); see also Broderick, 437 F.3d at 1232 (noting that a plaintiff may have
engaged in protected activity because she “did send a copy of her memo [complaining about her
treatment] to an EEO official”); Powell v. Lockhart, 629 F. Supp. 2d 23, 39 (D.D.C. 2009)
(holding that the plaintiff engaged in protected activity when she explicitly stated “that she
believed that her performance review was discriminatory”). Although WMATA argues that
Ms. Wang cannot establish causation—the third element of a Title VII retaliation claim—if
Ms. Wang’s retaliation claim relies on these protected activities, see Def.’s Mem. 22–23, the
Court reserves discussion of that argument for later. See infra Part IV.A.3.c.
Ms. Wang also testified about another incident in which she explicitly communicated
discrimination allegations to WMATA. In her deposition, Ms. Wang stated that, during her
September 11, 2013 visit to WMATA’s Office of Civil Rights and Human Resources, she said “I
have a discrimination complaint” to an employee there. Wang Dep. 226:11–227:6, Pl.’s
Statement Ex. 1, ECF No. 20-3. WMATA disputes this fact and alleges that “no one else can
46
corroborate Ms. Wang’s claim that Ms. Wang mentioned discrimination” during that visit. See
Def.’s Statement ¶ 57; Def.’s Resp. Statement 10, “Page 35 of 63,” ¶ 3. Because the Court
generally may not resolve disputed material facts on summary judgment, see Czekalski v. Peters,
475 F.3d 360, 363 (D.C. Cir. 2007) (holding that, on summary judgment, the Court must
“eschew . . . weighing the evidence”), the Court assumes for now that Ms. Wang did explicitly
allege discrimination during her September 11 visit to WMATA’s Office of Civil Rights and
Human Resources—and thus that her allegation there also qualifies as a protected activity for her
retaliation claim. See Powell, 629 F. Supp. 2d at 39. See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (explaining that, on summary judgment, the Court must analyze
all underlying facts and inferences in the light most favorable to the non-movant). As with
Ms. Wang’s emails to Special Agent Coulter, the Court postpones discussion of whether
Ms. Wang can establish causation based on her September 11 allegation of discrimination. See
infra Part IV.A.3.c (discussing causation).
Of the possible protected activities in this case, a final category encompasses certain
actions that Ms. Wang took, by which Ms. Wang arguably “opposed” the events that led to her
termination, but which did not include explicit mention of “discrimination” or “EEO” issues.
Dividing this category of actions into three groups, the Court briefly recounts them before
discussing whether they might be protected activities.
First, Ms. Wang emailed Ms. Audette on September 5, 2013 after the meeting in which
Mr. Greaves announced that he wanted to transfer one of Ms. Wang’s staff members to another
WMATA component. See Pl.’s Statement Ex. 17, ECF No. 20-19 (reproducing the email). In her
email, Ms. Wang stated that “[she] felt that [she was] being taken advantage of because [she
does] not complain and just get[s] the job done” and that “[she was] not sure about [her] next
47
step,” but hoped to discuss the matter with Ms. Audette at Ms. Audette’s convenience. Id. Her
email did not, however, explicitly allege unlawful discrimination based on Ms. Wang’s race, sex,
or national origin. See id.
Second, the next day, Ms. Wang and Mr. Greaves had a conversation, in which
Ms. Wang suggested that she might hire a lawyer, and after which Ms. Wang had the impression
of being terminated. Pl.’s Statement 26–27, ¶ 3; Def.’s Resp. Statement 8–9, “Page 25 of 63,”
¶ 3. Ms. Wang alleges that, during their September 6 conversation, after Ms. Wang told
Ms. Greaves that, because of his yelling and screaming, Mr. Greaves “seem[ed] to abuse [his]
authority,” Mr. Greaves replied that “[a]buse would be a word you would tell a lawyer.” Wang
Dep. 194:3–7, 206:2–6, 212:10–214:12, Pl.’s Statement Ex. 1, ECF No. 20-3. According to
Ms. Wang, after she replied “[m]aybe,” Mr. Greaves became very excited, pointed his finger to
Ms. Wang’s nose, and said “You’re fired. You’re fired. You’re fired immediately.” Id. at
214:12–20. Mr. Greaves disagrees with Ms. Wang’s version of events but admits that Ms. Wang
may have mentioned that she might retain an attorney because “[t]hat’s the . . . normal retaliation
speech that you would get.” Greaves Dep. 147:16–150:18, Pl.’s Statement Ex. 3, ECF No. 20-5.
Because the Court may not make credibility determinations or weigh the evidence on summary
judgment, Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), the Court will view the
record in the light most favorable to Ms. Wang and accept her version of events for purposes of
this opinion. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Ms. Wang
does not, however, claim that she mentioned unlawful discrimination during the September 6
conversation. See Wang Dep. 212:10–214:20.
Third, Ms. Wang paid WMATA’s OIG two visits, on September 6, 2013 and September
24, 2013. See Def.’s Statement Ex. 15 (reproducing an audio recording of Ms. Wang’s OIG
48
interviews on those two dates). Ms. Wang does not mention unlawful discrimination in either of
the two recorded interviews that took place during her OIG visits. See Def.’s Statement Ex. 15.
In determining whether these three groups of activities are activities that Title VII
protects, the Court must heed the D.C. Circuit’s directive that, “while no ‘magic words’ are
required, the [plaintiff’s] complaint [or actions] must in some way allege unlawful
discrimination” to be protected activity. Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir.
2006). Thus, “ambiguous complaints that do not make the employer aware of alleged
discriminatory misconduct do not constitute protected activity.” Clemmons v. Acad. for Educ.
Dev., 107 F. Supp. 3d 100, 128 (D.D.C. 2015) (quoting Int’l Healthcare Exch., Inc. v. Global
Healthcare Exch., LLC, 470 F. Supp. 2d 345, 357 (S.D.N.Y. 2007)). Courts in this Circuit
therefore require the plaintiff to communicate to the employer “alleged discriminatory conduct or
ill-treatment based on her race, color, religion, sex, or national origin,” or at least to require the
plaintiff to allege that she believed that she was reporting discriminatory conduct. Magowan v.
Lowery, No. 15-0917, 2016 WL 778351, at *18 (D.D.C. Feb. 29, 2016); see also Richardson v.
Petasis, No. 13-0826, 2015 WL 8082244, at 29–31 (D.D.C. Dec. 7, 2015); Uzoukwu v. Metro.
Wash. COG, 130 F. Supp. 3d 403, 416–17 (D.D.C. 2015); Brooks v. Kerry, 37 F. Supp. 3d 187,
197 n.4 (D.D.C. 2014). Although courts have held that protected “opposition” activity need not
be an explicit discrimination complaint voiced by the plaintiff and communicated to her
employer, the law requires, in the absence of such a complaint, that a Title VII plaintiff’s
“opposition” activity must in some way relate to allegations that would plainly signal
discrimination if they were true. See Clemmons, 107 F. Supp. 3d at 128–32.24
24
Cf., e.g., Crawford v. Metro. Gov’t, 555 U.S. 271, 277 (2009) (explaining that
“opposition” to an employer’s discriminatory practices could include “standing pat . . . by
refusing to follow a supervisor’s order to fire a junior worker for [explicitly] discriminatory
49
With these principles in mind, the Court determines that Ms. Wang’s September 5 email
to Ms. Audette, Ms. Wang’s September 6 conversation with Mr. Greaves, and Ms. Wang’s
September 6 and September 24 OIG visits were not protected activities under Title VII. As noted
above, none of these actions included explicit allegations of discrimination. Nor did they allege
conduct that, if true, would plainly signal discrimination. Ms. Wang’s September 5 email alleged
that Ms. Wang was “being taken advantage of because [she does] not complain and just get[s]
the job done.” Pl.’s Statement Ex. 17, ECF No. 20-19. Even if Ms. Wang’s allegation had been
true, it would not necessarily imply discrimination. Any employee—regardless of his or her race,
sex, or national origin—could raise a concern about inequitable distribution of work. Broderick,
437 F.3d at 1232 (noting that “complaining about being ‘picked on,’ without mentioning
discrimination or otherwise indicating that gender was an issue, does not constitute protected
activity, even if the employee honestly believes she is the subject of sex discrimination” (citing
Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 727–28 (7th Cir. 2003))).
And even though Ms. Wang accused Mr. Greaves on September 6 of abusing his
authority and indicated that she might hire a lawyer, Ms. Wang’s statements were “untethered to
an allegation that [Mr. Greaves’s] conduct occurred because of [Ms. Wang’s] membership in a
protected class.” Clemmons, 107 F. Supp. 3d at 130. Lacking that critical allegation, the
statements merely alleged a “workplace complaint,” not protected activity. See id. (explaining
reasons,” such as when the employer fires the plaintiff “for failing to prevent his subordinate
from filing an EEOC charge); DeMasters v. Carilion Clinic, 796 F.3d 409, 414–15, 417–18 (4th
Cir. 2015) (holding that, when an employee helped a colleague who made explicit sexual
harassment allegations, the court may consider the employee’s acts in the aggregate to determine
whether they qualify as protected activities); Collazo v. Bristol–Myers Squibb Mfg., Inc., 617
F.3d 39, 43–44, 47 (1st Cir. 2010) (holding that an employee who raised his subordinate’s sexual
harassment complaints to his supervisor—and explicitly noted that “this girl alleges that she is
being sexually harassed”—opposed unlawful employment practices through his conduct).
50
that, in these circumstances, even “‘somewhat magical’ words like ‘bias,’ ‘prejudice,’ and
‘hostile work environment[]’” do not make a plaintiff’s statements protected Title VII activity).
Ms. Wang’s OIG visits fail for the same reason: Because Ms. Wang never alleged
unlawful discrimination under Title VII during those visits, her visits signaled only that she was
reporting non-discriminatory “fraud, waste, or abuse,” which is the kind of allegation that
WMATA’s OIG typically handles. See Def.’s Statement Ex. 15, at 27:33–40 (reproducing the
audio file from Ms. Wang’s September 6, 2013 interview with WMATA’s OIG, in which
Special Agent Coulter discusses the OIG’s responsibilities). Indeed, this Court has explicitly held
that “Title VII does not bar ill treatment because an employee complains to an inspector
general . . . or because a manager engages in actions perceived as harassment after such an IG
complaint.” Cole v. Boeing Co., 75 F. Supp. 3d 70, 78 (D.D.C. 2014); see also Hunter v. District
of Columbia, 905 F. Supp. 2d 364, 379 (D.D.C. 2012) (holding that the Court cannot find an
employee’s OIG complaint to be protected activity when “nothing in the record demonstrates
that [the] complaint . . . alleged discrimination on the basis of the characteristics protected by
Title VII”). Thus, Ms. Wang’s OIG visits, without more explicit discrimination allegations, are
not protected activities under Title VII.
The Court summarizes its analysis of the first element of Ms. Wang’s Title VII retaliation
case (whether Ms. Wang engaged in protected activity under Title VII). First, Ms. Wang engaged
in protected activity under the “participation clause” when she filed her EEOC Charge on
October 2, 2013. Second, Ms. Wang engaged in protected activities under the “opposition”
clause when she emailed Special Agent Coulter on September 6 and September 22, because she
explicitly alleged discrimination and sought the contact information for WMATA’s EEO office.
Third, Ms. Wang engaged in further protected “opposition” activity when she allegedly made a
51
discrimination allegation at WMATA’s Office of Civil Rights on September 11. But Ms. Wang’s
September 5 email to Ms. Audette, Ms. Wang’s September 6 conversation with Mr. Greaves, and
Ms. Wang’s September 6 and September 24 OIG visits are not protected “opposition” activities
under Title VII, because they did not “in some way allege unlawful discrimination.” Broderick,
437 F.3d at 1232. The Court now turns to the second and third retaliation elements.
b. Materially Adverse Action
To establish the second element of a Title VII retaliation claim, the plaintiff must show
that her employer took a materially adverse action against her. McGrath v. Clinton, 666 F.3d
1377, 1380 (D.C. Cir. 2012). Just as WMATA argued that Ms. Wang’s written warnings and
corrective action plan cannot be adverse employment actions for purposes of Ms. Wang’s
discrimination claims, WMATA argues that they cannot be materially adverse actions for
purposes of her Title VII retaliation claim. See Def.’s Mem. 9–12, 18. Ms. Wang does not argue
otherwise, see Pl.’s Opp’n 32–37, and so the Court finds that Ms. Wang’s written warnings and
corrective action plan are not materially adverse actions upon which Ms. Wang may base her
Title VII retaliation claim. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003) (“[W]hen a plaintiff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.”). On the other hand, Ms. Wang’s termination is,
of course, a materially adverse action on which she can base her retaliation claim. See Baird v.
Gotbaum, 662 F.3d 1246, 1248–49 (D.C. Cir. 2011) (explaining that “the ‘adverse action’
concept has a broader meaning” in the retaliation context, so that it encompasses at least the
“hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or . . . significant change in benefits” that are adverse employment actions in the discrimination
context (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009))).
52
c. Causation
The third element of a Title VII retaliation claim requires the employee to show “that the
employer took a materially adverse action against the employee ‘because’ the employee opposed
a protected practice.” McGrath v. Clinton, 666 F.3d 1877, 1383 (D.C. Cir. 2012). To survive
summary judgment, therefore, the employee “must demonstrate that there is a genuine issue of
material fact as to whether retaliatory animus was the cause” for the employer’s materially
adverse action. Rattigan v. Holder, 982 F. Supp. 2d 69, 81 (D.D.C. 2013). Title VII retaliation
claims have a higher causation standard than Title VII discrimination claims: “Title VII
retaliation claims must be proved according to traditional principles of but-for causation,” not the
motivating-factor standard applicable to discrimination claims. Univ. Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2533 (2013). The employee must therefore prove “that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of
the employer”—or, in other words, that the retaliation would not have occurred for any reason
other than the employee’s opposition to the employer’s discriminatory conduct. Id. To meet this
burden, the employee can offer both direct and circumstantial evidence “from which a reasonable
jury could infer the employer’s retaliatory intent.” McGrath, 666 F.3d at 1383.
Before analyzing whether Ms. Wang can establish causation, the Court first recounts the
timeline of events leading to Ms. Wang’s termination that are relevant to this inquiry, with
Ms. Wang’s protected activities italicized:
(1) September 5: Ms. Wang attended a meeting with Mr. Greaves and others, at
which Mr. Greaves sought to move one of Ms. Wang’s subordinates to
another WMATA component.25
25
See generally Am. Compl. ¶ 140; Answer Am. Compl. ¶ 140; Pl.’s Statement Ex. 17,
ECF No. 20-19.
53
(2) September 5: Ms. Wang conveyed her account of the meeting by email to
Ms. Audette. Mr. Greaves received notice of Ms. Wang’s email because
Ms. Audette forwarded the email to him.26
(3) September 6: Mr. Greaves gave Ms. Wang her first written warning.
Mr. Greaves allegedly told Ms. Wang that she was fired, after Ms. Wang
accused Mr. Greaves of abusing his authority and after Ms. Wang
mentioned that she might hire an attorney.27
(4) September 6: Ms. Wang visited WMATA’s OIG. At some point after this
visit or after Ms. Wang’s previous OIG visit, and potentially before
Ms. Wang was terminated, Mr. Greaves heard “a rumor” about Ms. Wang
complaining to “HR or OIG.”28
(5) September 6: Ms. Wang emailed Special Agent Coulter and asked for the
contact information for WMATA’s “EEO office.”29
(6) September 11: Ms. Wang stated that she had “a discrimination complaint”
to an employee at WMATA’s Office of Civil Rights and Human Resources.30
(7) September 11: Mr. Greaves gave Ms. Wang her second written warning and
placed her on a corrective action plan.31
(8) September 22: Ms. Wang emailed Special Agent Coulter and alleged that
she believed that she was “being discriminated against because of my age,
race and gender.”32
(9) September 24: Ms. Wang visited WMATA’s OIG once more.33
26
See Pl.’s Statement Ex. 17, ECF No. 20-19 (reproducing Ms. Wang’s email to
Ms. Audette); Def.’s Statement Ex. 12/13, at 488–89, ECF No. 19-14 (reproducing
Ms. Audette’s email to Mr. Greaves).
27
See Def.’s Statement ¶ 32; Pl.’s Statement 3, ¶ 12; Wang Dep. 194:3–7, 206:2–6,
212:10–214:20, Pl.’s Statement Ex. 1, ECF No. 20-3.
28
See Def.’s Statement ¶ 35; Pl.’s Statement 3, ¶ 14; id. at 30, ¶ 1; Def.’s Resp. Statement
9, “Page 30 of 63,” ¶ 1; Greaves Dep. 239:1–240:3, Pl.’s Statement Ex. 3, ECF No. 20-5.
29
See Def.’s Statement Ex. 18, ECF No. 19-18.
30
See Wang Dep. 226:11–227:6, Pl.’s Statement Ex. 1, ECF No. 20-3.
31
See Def.’s Statement ¶ 47; Pl.’s Statement 3, ¶ 16; id. at 40, ¶ 18; Def.’s Resp.
Statement 11, ¶ 18.
32
See Def.’s Statement Ex. 18.
33
See Pl.’s Statement 41, ¶ 3; Def.’s Resp. Statement 11, ¶ 3.
54
(10) October 2: Ms. Wang filed an EEOC Charge.34
(11) October 10: WMATA terminated Ms. Wang’s employment.35
(12) October 17: WMATA received Ms. Wang’s EEOC Charge.36
Ms. Wang’s termination on October 10 (item (11) above) is the only materially adverse action in
this case. See supra Part IV.A.3.b.
Having recounted the timeline of events, the Court can now address WMATA’s
argument that, because Mr. Greaves had no knowledge of Ms. Wang’s protected activities, those
activities could not have caused Mr. Greaves’s decision to terminate Ms. Wang’s employment.
To show causation, the plaintiff must show that the employer “had knowledge of her protected
activity, and that the adverse personnel action took place shortly after that activity.” Holbrook v.
Reno, 196 F.3d 255, 263 (D.C. Cir. 1999) (brackets and internal quotation marks omitted)
(quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985)). A plaintiff’s supervisor thus
could not have retaliated against the plaintiff unless he “had knowledge of [her] protected
activity.” Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009). Likewise, “an adverse
employment action that was already contemplated before a plaintiff engaged in protected activity
cannot be evidence of retaliation.” Terveer v. Billington, 34 F. Supp. 3d 100, 119 (D.D.C. 2014)
(citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)).
With respect to Ms. Wang’s protected activity under the “participation clause”—her
EEOC charge and any subsequent proceedings before the EEOC or this Court—the parties agree
that Ms. Wang was terminated before WMATA received notice of Ms. Wang’s EEOC Charge.
34
See Am. Compl. ¶ 24; Answer Am. Compl. ¶ 24; Pl.’s Statement 41, ¶ 6; Def.’s
Statement 11, “Page 41 of 63,” ¶ 6.
35
See Def.’s Statement ¶¶ 1, 72; Pl.’s Statement 1, ¶ 1; id. at 3, ¶ 23.
36
See Def.’s Statement ¶ 61; Pl.’s Statement 3, ¶ 21; Def.’s Statement Ex. 19, ECF
No. 19-19.
55
See Def.’s Statement ¶ 61; Pl.’s Statement 3, ¶ 21; see also Def.’s Statement Ex. 19, ECF
No. 19-19 (reproducing the EEOC’s Notice of Charge of Discrimination, which was stamped as
received by WMATA on October 17, 2013—a week after Ms. Wang’s termination on October
10, 2013). On this record, WMATA could not have known about Ms. Wang’s EEOC Charge
until after her termination, and hence WMATA’s knowledge about Ms. Wang’s EEOC Charge
could not have caused her termination. Thus, for any retaliation claim based on the EEOC
Charge and the proceedings that it triggered, Ms. Wang cannot establish the causation element
that is necessary for her Title VII retaliation claim.
Ms. Wang faces a similar problem for her other protected activities. The record supports
WMATA’s contention that Mr. Greaves did not know about Ms. Wang’s September 6 or
September 22 emails to Special Agent Coulter, in which she alleged discrimination. See Greaves
Dep. 239:1–12, Pl.’s Statement Ex. 3, ECF No. 20-5 (stating that no one ever formally contacted
Mr. Greaves about Ms. Wang’s complaints to “HR or OIG or any other place”); Pl.’s Statement
42–44 (omitting any claim that Mr. Greaves knew about Ms. Wang’s email correspondence with
Special Agent Coulter). Likewise, no record evidence indicates that Mr. Greaves thought that
Ms. Wang had explicitly alleged discrimination during her September 11 visit to WMATA’s
Office of Civil Rights. See Greaves Dep. 264:9–265:16 (indicating that, even though he had
heard rumors about Ms. Wang’s visit to “HR or OIG,” Mr. Greaves did not know the content of
Ms. Wang’s complaints); Pl.’s Statement 42–44 (omitting any claim that Mr. Greaves knew
about the content of Ms. Wang’s complaints to WMATA’s Office of Civil Rights).
“To survive summary judgment, however, [the plaintiff] needn’t provide direct evidence
that [her] supervisors knew of [her] protected activity; [she] need only offer circumstantial
evidence that could reasonably support an inference that they did.” Jones v. Bernanke, 557 F.3d
56
670, 679 (D.C. Cir. 2009); accord Kacian v. Postmaster Gen., No. 15-1952, 2016 WL 3509564,
at *4 (3d Cir. June 27, 2016); Román v. Castro, No. 12-1321, 2016 WL 829874, at *10 (D.D.C.
Mar. 1, 2016). “[T]hat ‘the employer had knowledge of the employee’s protected activity and the
adverse personnel action took place shortly after that activity’” can be “adequate to permit an
inference of retaliatory motive” on the part of a supervisor. Jones, 557 F.3d at 679 (emphasis in
original) (internal quotation marks omitted) (quoting Holcomb v. Powell, 433 F.3d 889, 903
(D.C. Cir. 2006)).
Here, assuming Ms. Wang’s version of the facts to be true for purposes of this opinion,
Ms. Wang can meet this standard and show (1) that her employer had knowledge of her
protected activities, and (2) that the adverse personnel action took place shortly after those
activities. The record shows that the employer (WMATA) had knowledge of Ms. Wang’s
protected activity because Ms. Wang had raised explicit discrimination allegations to WMATA’s
employees.37 And because WMATA terminated Ms. Wang within five weeks of all her protected
activities, her termination “took place shortly after” her protected activities. Jones, 557 F.3d at
679.38
The record thus supports an inference that Ms. Wang’s supervisor, Mr. Greaves, knew
about Ms. Wang’s protected activity because he terminated her shortly after Ms. Wang’s
37
See Wang Dep. 226:11–227:6, Pl.’s Statement Ex. 1, ECF No. 20-3 (stating that on
September 11 Ms. Wang told employees at WMATA’s Office of Civil Rights and Human
Resources that she wanted to file a discrimination complaint); Def.’s Statement Ex. 18, ECF
No. 19-18 (showing that Ms. Wang asked WMATA Special Agent Mark Coulter about
WMATA’s “EEO office” on September 6, and that Ms. Wang told Special Agent Coulter that
she believed that she was “being discriminated against because of [her] age, race and gender” on
September 22).
38
See Def.’s Statement Ex. 1, ECF No. 19-3 (showing that Ms. Wang’s termination letter
issued on October 10). See generally Mamantov v. McCarthy, 142 F. Supp. 3d 24, 33–34
(D.D.C. 2015) (“Courts in this Circuit have generally accepted as adequate intervals of a few
days up to a few months.” (citations and internal quotation marks omitted)).
57
employer, WMATA, learned about her protected activity. And even though circumstantial
evidence of temporal proximity is most persuasive “at the prima facie stage,” evidence that
supports a prima facie case “tends to support a circumstantial inference of retaliation” and
therefore “applies to the ultimate inquiry as well.” Jones, 447 F.3d at 679. “[I]f such evidence
can support an inference of actual retaliatory motive, it necessarily can support an inference of
mere knowledge.” Id.
Beyond temporal proximity, additional circumstantial evidence exists that reasonably
supports an inference that Mr. Greaves knew about at least one of Ms. Wang’s protected
activities: Belinda Press, a WMATA employee relations officer, attended the September 11
meeting in which Ms. Wang received her corrective action plan from Mr. Greaves. And
circumstances surrounding that meeting indicate that Ms. Press could have told Mr. Greaves
about the discrimination allegation that Ms. Wang claims to have made at WMATA’s Office of
Civil Rights and Human Resources. Below, the Court discusses the evidence supporting this
theory of events.
The record shows that Mr. Greaves was aware of at least one of Ms. Wang’s visits to
WMATA’s OIG or to WMATA’s human resources department, even if he was not aware of
what she stated during that visit. See Greaves Dep. 239:1–240:3 (admitting that Mr. Greaves
heard a “rumor about [Ms. Wang] complaining to HR or OIG”). During his deposition,
Mr. Greaves stated that he did not know when he had become aware of Ms. Wang’s visits to OIG
or to the human resources department, but Mr. Greaves did admit that “it could have been
before” Ms. Wang’s termination. See id. Mr. Greaves could have learned about Ms. Wang’s
September 11 visit to WMATA’s Office of Civil Rights and Human Resources, thus, at any time
between the time the visit occurred and Ms. Wang’s termination on October 10.
58
The record also shows that, later in the day after Ms. Wang’s September 11 visit to
WMATA’s Office of Civil Rights and Human Resources, Mr. Greaves issued Ms. Wang a
second written warning and a corrective action plan. See Wang Dep. 238:12–242:1, Pl.’s
Statement Ex. 1, ECF No. 20-3 (describing how Ms. Wang received the second written warning
and the corrective action plan at a 4:30 PM meeting with Mr. Greaves and WMATA Employee
Relations Officer Belinda Press); Pl.’s Statement Ex. 22, ECF No. 20-24 (showing that, on
September 11 before Ms. Wang’s 4:30 PM meeting with Mr. Greaves, Ms. Wang had established
contact with Belinda Press from WMATA’s Office of Civil Rights and Human Resources). But
the meeting was not just between Mr. Greaves and Ms. Wang. A third person attended: Belinda
Press, the very person, based on Ms. Wang’s version of events, to whom Ms. Wang had been
referred at WMATA’s Office of Civil Rights and Human Resources. See Wang Dep.
226:14–229:5 (stating that Ms. Wang met Ms. Press during her September 11 visit to the Office
of Civil Rights and Human Resources); id. at 238:12–242:1 (stating that Ms. Press was present at
the meeting in which Ms. Wang received her corrective action plan). What is more, Ms. Press
was the same person to whom, immediately before the 4:30 PM meeting with Mr. Greaves,
Ms. Wang had been communicating concerns about Mr. Greaves’s management. See Pl.’s
Statement Ex. 22 (showing that Ms. Wang emailed Ms. Press about Mr. Greaves at 4:03 PM on
September 11).
The record thus indicates that one person—Belinda Press—both knew the details
Ms. Wang’s discrimination allegations and had the opportunity to communicate them to
Mr. Greaves. Indeed, Ms. Press has stated that, to review the corrective action plan, she may
have met with Mr. Greaves before the 4:30 PM meeting in which Mr. Greaves issued Ms. Wang
the corrective action plan. See Press Dep. 54:8–55:12, Def.’s Statement Ex. 17, ECF No. 19-17.
59
Given that Mr. Greaves admits to hearing that Ms. Wang visited WMATA’s OIG or WMATA’s
Office of Civil Rights and Human Resources, see Greaves Dep. 239:1–240:3, a reasonable jury
could reasonably infer that Ms. Press conveyed the information about Ms. Wang’s visit to
Mr. Greaves. And a reasonable jury could reasonably infer that, if Ms. Press communicated
information about Ms. Wang’s visit to Ms. Press’s office, then Ms. Press also communicated
what Ms. Wang allegedly said during that visit—that Ms. Wang sought to lodge a discrimination
complaint. See Wang Dep. 226:11–227:6. Given Ms. Press’s multiple possible interactions with
Mr. Greaves in connection to Ms. Wang, the record would sufficiently support a reasonable
jury’s inference that Mr. Greaves learned (from Ms. Press) about Ms. Wang’s explicit allegation
of discrimination, voiced at WMATA’s Office of Civil Rights and Human Resources.
In light of WMATA’s knowledge of Ms. Wang’s protected activity, the temporal
proximity between Ms. Wang’s protected activity and her termination, and circumstantial
evidence from which a reasonable jury could infer that Mr. Greaves knew about at least one of
Ms. Wang’s protected activities, the Court determines that Ms. Wang has sufficient record
evidence to refute the argument that Mr. Greaves had no knowledge of Ms. Wang’s protected
activities. See Def.’s Mem. 18–23 (making that argument). See generally Holbrook v. Reno, 196
F.3d 255, 263 (D.C. Cir. 1999) (explaining that, to show causation, the plaintiff must show that
the employer “had knowledge of her protected activity” (brackets and internal quotation mark
omitted) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985))). But this
determination does not conclude the causation inquiry. After all, the causation element of a Title
VII retaliation claim requires the employee to show “that the employer took a materially adverse
action against the employee ‘because’ the employee opposed a protected practice.” McGrath v.
Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012). Simply showing the employer’s knowledge of
60
the employee’s protected practice and the employer’s later materially adverse action does not
fully meet that standard; the employee must also show the materially adverse action “would not
have occurred in the absence of” the employee’s protected practice. Univ. Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2533 (2013). The Court turns now to the evidence Ms. Wang offers to
show Mr. Greaves’s retaliatory animus.
The Court begins with Ms. Wang’s “direct evidence” of retaliation. See Pl.’s Opp’n 36.
Direct evidence of retaliation may be an employer policy that is retaliatory on its face, or an
employer statement that explicitly mentions an employee’s protected activity. See, e.g., Lane v.
Vasquez, 961 F. Supp. 2d 55, 75 (D.D.C. 2013) (holding that the employer’s comment that the
employee “filed an EEO complaint and would never be hired is direct evidence of retaliation”);
Hampton v. Vilsack, 760 F. Supp. 2d 38, 53 (D.D.C. 2011) (finding a sworn affidavit to be direct
evidence of retaliation when it stated that a supervisor informed another employee that the
plaintiff “was not being sent overseas in November 2004 because of his EEO complaint”). See
generally, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121–22 (1985) (explaining
that a policy that was discriminatory on its face was direct evidence of discrimination);
Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576–77 (D.C. Cir. 2013) (per curiam) (finding that the
employer’s reference to the employee’s status as a “young black man” was direct evidence of
discrimination). If the employee has direct evidence of retaliation, she need not make out a prima
facie case, see Thurston, 469 U.S. at 121, and she is entitled to a jury trial, see Ayissi–Etoh, 712
F.3d at 576–77.
Here, Ms. Wang asserts that Mr. Greaves’s “retaliatory animus beg[an] when [Ms.] Wang
sa[id] she [might] consult an attorney and continue[d] through to his deposition testimony,” and
that “[Mr.] Greaves’s documented anger at [Ms.] Wang compels denial of summary judgment on
61
[Ms.] Wang’s Title VII retaliation count.” Pl.’s Opp’n 36. The record does reflect Mr. Greaves
consistent irritation with Ms. Wang’s actions, particularly those actions that he felt might lead to
legal activity. Immediately after reading Ms. Wang’s September 5 email about their meeting
earlier that day, Mr. Greaves believed that Ms. Wang wanted to “create a case” against him, and
he said so in two emails he sent on that same day. See Def.’s Statement Ex. 12/13, at 487–89,
ECF No. 19-14. And on that very day, he recommended Ms. Wang’s termination. Id. at 487–88.
Furthermore, on multiple occasions during his deposition, Mr. Greaves expressed his belief that
Ms. Wang was telling “a complete lie . . . to set up her little case.” See Greaves Dep. 138:1–14,
147:16–150:14, Pl.’s Statement Ex. 3, ECF No. 20-5. See generally 1 Lex K. Larson & Arthur
Larson, Larson on Employment Discrimination § 8.07 (2d ed. 2016) (“Discriminatory [or
retaliatory] comments may establish a prima facie case even if occurring after the adverse
employment action.” (citing Ridgell v. Colvin, No. 10-3280, 2013 WL 952253 (D. Md. Mar. 11,
2013)). Finally, according to Ms. Wang, when Mr. Greaves became agitated after Ms. Wang
accused him of abusing his authority, Mr. Greaves replied that “[a]buse would be a word you
would tell a lawyer” and then told Ms. Wang that she was fired. Wang Dep. 212:10–214:20, Pl.’s
Statement Ex. 1, ECF No. 20-3.39
The record thus reveals several instances in which Mr. Greaves showed awareness of and
irritation toward the possibility that Ms. Wang might pursue legal action against him. However,
Mr. Greaves’s statements never specifically addressed the possibility that Ms. Wang might lodge
39
As discussed above, see supra Part IV.A.3.a, although Mr. Greaves disagrees with
Ms. Wang’s version of events, the Court will assume that Ms. Wang’s version of events is
accurate for purposes of this opinion. See generally Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (explaining that the Court must analyze all underlying facts and inferences in the
light most favorable to the non-movant); Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007)
(explaining that the Court may not make credibility determinations or weigh the evidence on
summary judgment).
62
discrimination allegations against him. For that reason, Mr. Greaves’s statements are not the
kind of direct evidence that ensures Ms. Wang a jury trial on her retaliation claim. Cf.
Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576–77 (D.C. Cir. 2013) (per curiam) (holding that a
statement that specifically invoked the plaintiff’s protected class was direct evidence that entitled
the plaintiff to a jury trial on his discrimination claims); Lane v. Vasquez, 961 F. Supp. 2d 55, 75
(D.D.C. 2013) (holding that a statement that specifically invoked the plaintiff’s EEO complaint
was direct evidence that entitled the plaintiff to a jury trial on his retaliation claim); Hampton v.
Vilsack, 760 F. Supp. 2d 38, 53 (D.D.C. 2011) (same). The Court will, however, consider
Mr. Greaves’s statements as indirect evidence of Mr. Greaves’s retaliatory animus.
To assess whether indirect evidence of retaliation suffices to show that WMATA
terminated Ms. Wang “because” she opposed discriminatory conduct, the Court engages in the
same analysis it did for Ms. Wang’s indirect evidence of discrimination: the Court considers
whether “the employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-retaliatory reason was not the actual reason and that the employer
intentionally retaliated against the employee in violation of Title VII.” McGrath v. Clinton, 666
F.3d 1377, 1383 (D.C. Cir. 2012) (brackets and internal quotation marks omitted) (quoting
Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011)). As discussed before, circumstantial
evidence supports the idea that Mr. Greaves might have known about Ms. Wang’s protected
activity at the time that he issued her corrective action plan. See supra (discussing how Ms. Press
was allegedly aware of Ms. Wang’s discrimination allegations against Mr. Greaves and might
have also met with Mr. Greaves before Mr. Greaves issued Ms. Wang her corrective action
plan). And, as also noted before, the goals and deadlines in Ms. Wang’s corrective action plan
call its fairness and impartiality into doubt. See supra Part IV.A.2.c. Those circumstances,
63
combined with Mr. Greaves’s statements showing his irritation toward any legal action from
Ms. Wang, might leave a reasonable jury with the impression that Mr. Greaves imposed an
unfair corrective action plan, ensured that Ms. Wang performed poorly on it, and ultimately
terminated Ms. Wang in retaliation for her intent to file a discrimination suit against WMATA.
See Burley v. Nat’l Passenger Rail Corp., 801 F.3 290, 296 (D.C. Cir. 2015) (explaining that a
plaintiff may establish pretext with evidence that “[a]n employer’s [pre-termination]
investigation . . . is so unsystematic and incomplete that a factfinder could conclude that the
employer sought, not to discover the truth, but to cover up its own discrimination [or retaliation]”
(citing Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C. Cir. 2006))); Brady v.
Office of the Sergeant at Arms, 520 F.3d 490, 495 n.3 (D.C. Cir. 2008) (noting that a plaintiff can
also point to “discriminatory [or retaliatory] statements by the decisionmaker”). A reasonable
jury could further buttress an inference of retaliation with the observation that Ms. Wang’s
termination came within five weeks of both instances in which allusions to legal action provoked
a reaction from Mr. Greaves.40 Because a reasonable jury could infer retaliation here, the Court
must deny WMATA’s motion for summary judgment on Ms. Wang’s Title VII retaliation claim.
40
Compare Def.’s Statement Ex. 12/13, at 488–89, ECF No. 19-14 (showing that
Mr. Greaves believes that Ms. Wang was attempting to “create a case” when she emailed
Ms. Audette about the meeting in which Mr. Greaves suggested Mr. Julia’s transfer); Wang Dep.
194:3–7, 206:2–6, 212:10–214:20, Pl.’s Statement Ex. 1, ECF No. 20-3 (indicating that
Mr. Greaves accused Ms. Wang of using the word “abuse” because “[a]buse would be a word
you would tell a lawyer” on September 6, 2013), with Def.’s Statement Ex. 1, ECF No. 19-3
(showing that Ms. Wang was terminated less than five weeks later, on October 10, 2013). See
generally Hamilton v. Geithner, 666 F.3d 1344, 1357–58 (D.C. Cir. 2012) (explaining that
temporal proximity can support an inference of causation, and analyzing the facts of the case to
find that, when “the period between . . . statutorily protected activity and the adverse
employment action is just under three months,” “just two months,” or “one month later,” the
plaintiff provided sufficient evidence to infer retaliation).
64
Until now, the Court has discussed the causation element of Ms. Wang’s Title VII
retaliation claim under the D.C. Circuit’s directive that a plaintiff’s supervisor could not have
retaliated against the plaintiff unless he “had knowledge of [her] protected activity.” Jones v.
Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009). But the Court notes here that, in the Title VII
discrimination context, some courts—including the Supreme Court—have held that the
employer’s knowledge of a plaintiff’s protected class is not required for a successful Title VII
discrimination claim: “When evaluating causation in a Title VII case, the question is not what the
employer knew about the employee’s religious beliefs [or the employee’s protected class]. . . .
Instead, the critical question is what motivated the employer’s employment decision.” Nobach v.
Woodland Vill. Nursing Ctr., Inc., 799 F.3d 374, 378 (5th Cir. 2015) (citing EEOC v.
Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015)); accord Mendoza v. Roman
Catholic Archbishop of L.A., No. 14-55651, 2016 WL 3165856, at *2 (9th Cir. June 7, 2016)
(“Knowledge is not a requirement of a Title VII claim.” (citing Abercrombie, 135 S. Ct. at
2032–33)).
In the Supreme Court’s words, Title VII’s “intentional discrimination provision prohibits
certain motives, regardless of the state of the actor’s knowledge.” Abercrombie, 135 S. Ct. at
2033. “Motive and knowledge are separate concepts.” Id. And the Supreme Court has recently
reached a similar holding in the First Amendment retaliation context: “When an employer
demotes an employee out of a desire to prevent the employee from engaging in political activity
that the First Amendment protects, the employee is entitled to challenge that unlawful action
under the First Amendment and 42 U.S.C. § 1983—even if . . . the employer makes a factual
mistake about the employee's behavior.” Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418
(2016). See generally Smith v. City of Greensboro, No. 15-11643, 2016 WL 1425953, at *6 (11th
65
Cir. Apr. 12, 2016) (applying the same causation principles for the plaintiff’s Title VII and First
Amendment retaliation claims); Martin v. District of Columbia, 78 F. Supp. 3d 279, 327 n.74
(D.D.C. 2015) (same).
To the Court’s knowledge, no court has squarely held that a plaintiff may prove Title VII
retaliation based solely on a supervisor’s retaliatory motive, without having to establish the
supervisor’s knowledge of the plaintiff’s protected activity. But such a holding is the logical
extension of the Supreme Court’s statutory analysis in Abercrombie, which observed that 42
U.S.C. § 2000e-2(a)(1)—the provision governing Title VII discrimination—“does not impose a
knowledge requirement,” even though “some antidiscrimination statutes do.” Abercrombie, 135
S. Ct. at 2032–33; see also 42 U.S.C. § 2000e-2(a) (stating that “[i]t shall be an unlawful
employment practice for an employer . . . to discriminate against any individual . . . because of
such individual’s race, color, religion, sex, or national origin,” but not because of the employer’s
knowledge of the individual’s race, color, religion, sex, or national origin). Title VII’s
antiretaliation provision, just like Title VII’s antidiscrimination provision, imposes no knowledge
requirement. See 42 U.S.C. § 2000e-3(a) (stating that “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice,” not because the employer knows
that the employee has opposed any practice made an unlawful employment practice). To prove
that a supervisor unlawfully retaliated against the plaintiff, the plaintiff arguably need only to
prove that the supervisor harbored unlawful retaliatory intent—not that he harbored unlawful
retaliatory intent and that he knew about the plaintiff’s protected activity.
Here, because the Court finds that circumstantial evidence exists from which a reasonable
jury could infer Mr. Greaves’s knowledge of one of Ms. Wang’s protected activities, the Court
66
need not analyze Ms. Wang’s claim under this alternative method of proving causation. The
Court observes, however, that record evidence exists that suggests that, even before Mr. Greaves
could have had knowledge of Ms. Wang’s protected activities (and even if Mr. Greaves did not
have knowledge of those activities), Mr. Greaves harbored retaliatory animus toward
Ms. Wang.41 And additional circumstantial evidence in this case suggests that Mr. Greaves’s
hostility arose from the concern that Ms. Wang would file discrimination allegations: In today’s
workplace climate, if an employee (1) is in a protected class, (2) has expressed dissatisfaction
with an adverse personnel action taken against her, (3) appears to be building a case against her
manager, (4) has stated that she may hire a lawyer as a result of her dissatisfaction with the
adverse personnel action, and (5) has visited her employer’s human resources department to
discuss the same adverse personnel action, then the manager that took action against that
employee would logically suspect that her complaint is discrimination-related (in particular
where the employee is an at-will employee with almost no other legal options). All of these
parameters, of course, apply here.42 Thus, it is plausible that Mr. Greaves mistakenly sought to
41
See Def.’s Statement Ex. 12/13, at 488–89, ECF No. 19-14 (showing that, after reading
Ms. Wang’s September 5 email about the meeting in which Mr. Greaves sought to transfer
Mr. Julia, Mr. Greaves immediately believed that Ms. Wang wanted to “create a case” against
him); Wang Dep. 194:3–7, 206:2–6, 212:10–214:12, Pl.’s Statement Ex. 1, ECF No. 20-3
(alleging that Mr. Greaves told Ms. Wang that she was “fired immediately” after she said that
she might hire a lawyer); Greaves Dep. 147:16–150:18, Pl.’s Statement Ex. 3, ECF No. 20-5
(opining that statements about hiring an attorney are typical in “the . . . normal retaliation speech
that you would get”).
42
See Am. Compl. ¶¶ 2, 140 (noting that Ms. Wang is a Chinese-American female, and
that on September 5, 2013, Mr. Greaves sought to move one of her subordinates to a different
WMATA component); Answer Am. Compl. ¶¶ 2, 140 (same); Def.’s Statement Ex. 12/13, at
488–89, ECF No. 19-14 (showing that Ms. Wang emailed her second-line supervisor about
Mr. Greaves’s actions on September 5, 2013, and that Mr. Greaves thought that Ms. Wang was
“creating a case”); Wang Dep. 194:3–7, 206:2–6, 212:10–214:20, Pl.’s Statement Ex. 1, ECF
No. 20-3 (indicating that Ms. Wang told Mr. Greaves on September 6, 2013 that she might hire a
lawyer); Greaves Dep. 239:1–240:3, Pl.’s Statement Ex. 3, ECF No. 20-5 (indicating that
Mr. Greaves had heard a rumor that Ms. Wang had visited WMATA’s OIG or WMATA’s
67
retaliate against Ms. Wang for engaging in activity protected in Title VII, even though she did
not actually engage in such activity. And such mistaken retaliatory act may be actionable. But
the Court is hesitant to reach such a conclusion without further briefing.
Having momentarily digressed, the Court returns to—and recaps—its analysis of
Ms. Wang’s Title VII retaliation claim. As discussed above, Ms. Wang engaged in certain
protected Title VII activities during her last five weeks at WMATA, and WMATA terminated
her employment shortly after most of those activities took place. See supra Part IV.A.3.a–b. And
sufficient evidence exists to allow a reasonable jury to infer (1) that Ms. Wang’s supervisor,
Mr. Greaves, knew about at least one of Ms. Wang’s protected activities; and (2) that
Mr. Greaves terminated Ms. Wang’s employment because Ms. Wang engaged in that protected
activity. See supra. Because a reasonable jury could therefore find for Ms. Wang on each
element of her Title VII retaliation claim, the Court will deny WMATA’s motion for summary
judgment on the Title VII retaliation claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) (“[S]ummary judgment will not lie . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”); McGrath v. Clinton, 666 F.3d 1377, 1380
(D.C. Cir. 2012) (“To prove unlawful retaliation, a plaintiff must show: (1) that [she] opposed a
practice made unlawful by Title VII; (2) that the employer took a materially adverse action
against [her]; and (3) that the employer took the action ‘because’ the employee opposed the
practice.”).
human resources department); see also Bible Way Church of Our Lord Jesus Christ of Apostolic
Faith of Washington, D.C. v. Beards, 680 A.2d 419, 432–33 (D.C. 1996) (“In the District of
Columbia, where there is no clear expression of an intent to enter into a contract for a fixed
period, we recognize a presumption that ‘the parties have in mind merely the ordinary business
contract for a continuing employment, terminable at the will of either party.’” (quoting Sullivan
v. Heritage Found., 399 A.2d 856, 860 (D.C. 1979))).
68
B. ARRA Retaliation Claim
The Court concludes its consideration of WMATA’s summary judgment motion by
addressing Ms. Wang’s retaliation claim under the American Recovery and Reinvestment Act of
2009 (ARRA). See Am. Compl. ¶¶ 221–30. The ARRA, “popularly known as the Stimulus Act,
was passed as emergency legislation to rescue the American economy from the recent deep
recession.” Dorsey v. Jacobson Holman, PLLC, 707 F. Supp. 2d 21, 23 (D.D.C. 2010). The Act
appropriated federal funds to “promote economic recovery,” among other things. ARRA, Pub. L.
No. 111-5, § 3(a)(1), 123 Stat. 115, 116 (2009). To promote accountability and transparency in
the use of those funds, the ARRA includes a whistleblower provision that protects employees
who disclose
information that the employee reasonably believes is evidence of—
(1) gross mismanagement of an agency contract or grant relating to
covered funds;
(2) a gross waste of covered funds;
(3) a substantial and specific danger to public health or safety related to
the implementation or use of covered funds;
(4) an abuse of authority related to the implementation or use of covered
funds; or
(5) a violation of law, rule, or regulation related to an agency contract
(including the competition for or negotiation of a contract) or grant, awarded or
issued relating to covered funds.
Id. ¶ 1553(a), 123 Stat. at 297. The ARRA’s whistleblower provision declares that those
employees “may not be discharged, demoted, or otherwise discriminated against as a reprisal for
disclosing” that information, even if they make their disclosures “in the ordinary course of [their]
duties.” Id.
“To recover under ARRA’s whistleblower provision, a plaintiff must prove by a
preponderance of the evidence . . . (1) [that she] made a protected disclosure, (2) [that she]
suffered a reprisal, and (3) [that] the protected disclosure was a contributing factor in the
reprisal.” Hadley v. Duke Energy Progress, Inc., No. 14-0229, 2016 WL 1071098, at *4
69
(E.D.N.C. Mar. 17, 2016) (citing ARRA § 1553(a), (c)(1)(A), 123 Stat. at 297, 299). To prove
that a protected disclosure was a contributing factor, the plaintiff may use “circumstantial
evidence, including . . . (I) evidence that the official undertaking the reprisal knew of the
disclosure; or (II) evidence that the reprisal occurred within a period of time after the disclosure
such that a reasonable person could conclude that the disclosure was a contributing factor in the
reprisal.” ARRA § 1553(c)(1)(A)(ii), 123 Stat. at 299. If a plaintiff proves the three elements of
an ARRA whistleblower claim, the employer can rebut the claim with clear and convincing
evidence “that the employer would have taken the action constituting the reprisal in the absence
of the disclosure.” Hadley, 2016 WL 1071098, at *4 (brackets and internal quotation marks
omitted) (quoting ARRA § 1553(c)(1)(B), 123 Stat. at 299).
Here, WMATA argues that Ms. Wang cannot prevail on her ARRA retaliation claim
because
(1) Ms. Wang cannot establish that any whistleblowing disclosures she made
were related to funds specified in the ARRA,
(2) Ms. Wang did not make disclosures that the ARRA’s whistleblower provision
protects, and
(3) Ms. Wang cannot show that any protected disclosures caused her termination.
See Def.’s Mem. 30. Because the Court finds that WMATA’s second argument suffices to award
WMATA summary judgment on Ms. Wang’s ARRA retaliation claim, the Court addresses that
argument without addressing the other two.
When a plaintiff’s disclosure “concerns mismanagement, waste, or an abuse of ARRA
funds,” ARRA protects the plaintiff from discharge, demotion, and other discrimination only if
the misuse of funds was (1) “severe enough that the employee subjectively believes that it is
‘gross’” and (2) “severe enough that a ‘reasonabl[e]’ employee in the plaintiff’s position would
consider it ‘gross.’” Hadley, 2016 WL 1071098, at *5 (quoting ARRA § 1553(a), 123 Stat. at
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297) (citing Livingston v. Wyeth, Inc., 520 F.3d 344, 352 (4th Cir. 2008); White v. Dep’t of the
Air Force, 391 F.3d 1377, 1381–82 (Fed. Cir. 2005); and Gerhard v. D Constr., Inc.,
No. 11-0631, 2012 WL 893673, at *2–3 (N.D. Ill. Mar. 14, 2012). When applying this standard,
courts adopt principles used when applying “substantially identical language in the
Whistleblower Protection Act (‘WPA’), 5 U.S.C. § 2302(b)(8).” See id. Accordingly, because
whistleblower protection is not meant to allow employees to litigate policy disputes with their
employers, gross mismanagement under the ARRA “occurs when the ‘conclusion that the
employer erred is not debatable among reasonable people.’” Id. (brackets omitted) (quoting
White, 391 F.3d at 1382).
WMATA argues that Ms. Wang fails to allege “that the alleged integration issues [in
relation to WMATA’s IFO Project] were gross mismanagement” and not “the normal occurrence
of a system upgrade.” Def.’s Mem. 32. Along these lines, WMATA elaborates that Ms. Wang
provides “no point of reference for this Court to ascertain whether what she is describing as
issues are technical glitches in a complicated system or the product of reckless management.” Id.
The Court agrees. Ms. Wang spends just two pages of her opposition brief discussing the
legal merits of her ARRA retaliation claim, and nowhere in those two pages does she establish
that she disclosed WMATA actions that rise to the level of “gross” mismanagement, waste, or
abuse. See Pl.’s Opp’n 37–38. And, from the Court’s review of the record, whether WMATA’s
actions in relation to the IFO Project rose to the level of “gross” mismanagement appears to be a
question that reasonable people could debate. Compare Am. Compl. 8–13 (“[Ms.] Wang
reported gross mismanagement of the IFO project . . . .”), with Audette Dep. 147:19–149:9, Pl.’s
Statement Ex. 2, ECF No. 20-4 (contending that WMATA anticipated issues with the IFO
Project as “part of the correction process”). Because Ms. Wang does not argue otherwise, the
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Court concludes that a reasonable jury could not find, by a preponderance of the evidence, that
Ms. Wang made a protected disclosure under the ARRA. See ARRA § 1553(a), 123 Stat. at 297
(requiring plaintiffs to disclose “gross” mismanagement, waste, or abuse—or, alternatively, an
illegal act or “substantial and specific danger to public health or safety”—to receive protection
under the ARRA whistleblower provision); Hadley, 2016 WL 1071098, at *4 (explaining that
plaintiffs must prove the three elements of an ARRA whistleblower claim “by a preponderance
of the evidence”). Because Ms. Wang therefore fails to establish the first element of her ARRA
whistleblower claim—that she made a protected disclosure under the ARRA—the Court must
award summary judgment on that claim to WMATA. See Hadley, 2016 WL 1071098, at *4–5
(listing the three elements of an ARRA whistleblower claim, and noting that the plaintiff satisfies
the first element by proving that she “made a protected disclosure”).
V. CONCLUSION
On the record presented, the Court concludes that a reasonable jury could find that
WMATA terminated Ms. Wang’s employment for discriminatory or retaliatory reasons, in
violation of Title VII of the Civil Rights Act of 1964. But for Ms. Wang’s retaliation claim under
the whistleblower provision of the American Recovery and Reinvestment Act of 2009, the Court
concludes that a reasonable jury could not find in Ms. Wang’s favor. For the foregoing reasons,
Defendant’s motion for summary judgment (ECF No. 19) is GRANTED IN PART and
DENIED IN PART.43 An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 25, 2016 RUDOLPH CONTRERAS
United States District Judge
43
The Court denies as moot Ms. Wang’s request for an oral hearing. See Pl.’s Opp’n 40.
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