Cooper v. American University ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AAMIR COOPER, )
)
Plaintiff, )
)
v. ) Civil Action No. 18-cv-1970 (TSC)
)
AMERICAN UNIVERSITY, )
)
Defendant. )
)
)
MEMORANDUM OPINION
Plaintiff Aamir Cooper sued American University (“AU”), alleging employment
discrimination based on his race and gender. AU has moved for summary judgment
pursuant to Federal Rule of Civil Procedure 56, ECF No. 37. For the reasons explained
below, Defendant’s motion will be GRANTED.
I. BACKGROUND
On January 4, 2016, Plaintiff, an African American man, began working as a
Police Dispatcher in AU’s Police Department. That same day, Plaintiff signed a form
acknowledging and agreeing to follow “the policies in the Staff Personnel Policies
Manual and other university polices.” Def.’s Stmt. of Undisputed Material Facts ¶¶ 14,
16 (“Def.’s Facts”), ECF No. 37-2. The form included “specific instructions” on how
to access the Personnel Manual, id. ¶ 16, which “includes a reference to [AU’s]
Discrimination and Sexual Harassment Policy,” id. ¶ 3. Plaintiff’s job entailed
receiving emergency and non-emergency “requests for service by radio and telephone,”
determining an appropriate response to the caller “according to location and nature of
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problem and procedures of the department,” and “enter[ing], record[ing], track[ing] and
updat[ing] service calls and police activity in the computer-aided dispatch system.” Id.
¶ 15.
In late May 2017, a student lifeguard at the Reeves Aquatics Center complained
to her supervisor, Anike Oladeji, that Plaintiff “had made inappropriate comments to
her while at the swimming pool.” Id. ¶ 17. On May 26, 2017, Employee Relations
Advisor Roberta Goldstein learned that Oladeji “had received several complaints from
lifeguards and student pool patrons about Cooper.” Decl. of Deadre’ Johnson ¶ 15,
ECF No. 37-3. 1 Goldstein “spoke to Will Sowers, the Assistant Director, University
Police & Transportation Programs” and “asked that someone from the Department of
Public Safety speak” to Plaintiff “and tell him not to use the pool until they had a
chance to speak to [him] about the allegations.” Id. ¶ 16. Shortly after, Captain Kevin
Barrett called Plaintiff to his office, informed him “that there was an open
investigation” and gave Plaintiff “a direct order not to go to the pool,” Decl. of Kevin
Barrett ¶ 7, ECF No. 37-5 at 11-12. Although Plaintiff disputes the description of
Barrett’s statement as an order, Pl.’s Decl. ¶¶ 7-8, ECF No. 38-2 at 2-5, on June 28,
2017, Plaintiff was placed on administrative leave with pay for violating “instructions”
not to visit the pool pending the outcome of the investigation of the “sexual harassment
complaint” against him, ECF No. 38-2 at 86.
Meanwhile, on June 14, 2017, the student lifeguard spoke to Employee Relations
Coordinator Jessica Finegan and “elaborated on her earlier May 2017 complaint to
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Since 2013, Johnson, a Black woman, has held the position of Senior Director of Employee
Relations and Recruiting in AU’s Employee Relations Office, “interchangeably referred to as
AU’s Human Resources Department.” Her statements are “based on [her] personal knowledge.”
Decl. ¶¶ 1-2, 4.
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Oladeji about Cooper’s conduct.” Def.’s Facts ¶¶ 9, 20. Following her conversation
with the lifeguard, Finegan spoke with HR Director Johnson and Employee Relations
Advisor Santo A. Scrimenti, and an investigation ensued under Johnson’s supervision.
“[S]oon” after learning “about the student lifeguard’s allegations,” Johnson “emailed
the Title IX Coordinator Regina Curran to inform her about the complaint and to
schedule a call to discuss further.” Johnson Decl. ¶ 20. Curran remained “informed
throughout the course of the investigation.” 2 Id. ¶ 21.
As part of the investigation, Finegan and Scrimenti interviewed Plaintiff, as well
as the complainant, Oladeji, a male pool patron, and another female student lifeguard.
Id. ¶ 23. They also received from Oladeji written statements from other female student
lifeguards and pool patrons, which revealed that “a total of five female student
lifeguards and pool patrons had complaints against” Plaintiff. Id. ¶¶ 25-26; see id. ¶¶
28-34 (recounting complainants’ statements that raised “more” concerns “about
Cooper’s inappropriate behavior,” including one indicating that the behavior “had
started as early as 2016”).
On July 21, 2017, the investigation concluded with Scrimenti’s and Finegan’s
“Confidential Report on Investigation.” Id. ¶¶ 18, 35. The original complainant and
Plaintiff were informed “simultaneously on July 28, 2017, about the outcome of the
investigation,” id. ¶ 44, which was also the date of Plaintiff’s termination as per the
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Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
“Sexual harassment of students can be a form of discrimination prohibited by Title IX[,]” and “the
Office for Civil Rights has long recognized that sexual harassment of students engaged in by
school employees, other students, or third parties is covered by Title IX.” Off. for Civil Rights;
Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or
Third Parties, 62 FR 12034-01.
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recommendation of Human Resources. In the termination letter prepared by Human
Resources in consultation with Police Chief Phillip Morse, Johnson Decl. ¶¶ 42-43,
Morse explained:
HR's investigation [ ] included interviews with you and the
complainant as well as other staff and patrons of the Aquatic Center,
and they were able to corroborate that you inappropriately attempted
to make sexual advances toward at least four students and one staff
member. Four witnesses independently corroborated that you used
the alias “Noah” and gave shifting stories about your affiliation with
the University, never truthfully disclosing your role as University
Police Dispatcher.
The University’s core competencies require that all staff act
ethically and with integrity, which is defined, in relevant part, as
“think[ing] carefully about the likely effect on others of one’s
words, actions and behavior.” Additionally, the core competencies
require staff to support a diverse and inclusive community, which
means staff should avoid “doing or saying things that might offend
others.”
You have exhibited a pattern of unprofessional and inappropriate
behavior that runs counter to your duties as a member of the
University Police Department and has substantially eroded and
undermined your ability to do your job. Specifically, sexual
advances toward those you are charged to protect and assist in
times of crises, as well as use of a false identity, cannot be tolerated.
Your behavior constitutes a Level III violation of University policy
- serious misconduct - which is grounds for immediate termination.
Therefore, consistent with the University's discipline policy, I have
decided to terminate your employment effective today, July 28,
2017.
ECF No. 37-4 at 98-99.
Johnson attests that she, Scrimenti, and Finegan “concluded that Cooper’s
behavior was a Level III violation of AU policy and, as a result, [he] should be
terminated for cause.” Johnson Decl. ¶ 37. Johnson “approved the termination decision
because Cooper’s conduct was so egregious, given his role as a Police Dispatcher, and
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because multiple witnesses provided similar statements describing a pattern of
inappropriate and aggressive behavior by Cooper.” Id. ¶ 38. Johnson notes:
The recommendations section of the investigation report
stated, inter alia: “Mr. Cooper did not admit to unprofessional
behavior and inappropriate behavior when confronted with
some of the allegations. Each of the remaining allegations,
which Mr. Cooper denied, were verified and corroborated by
at least two other lifeguards. Because every lifeguard
interviewed and those who provided statements consistently
described a pattern of inappropriate behavior, Mr. Cooper’s
assertions and explanations to the contrary are dubious. Mr.
Cooper is an employee of the Department of Public Safety,
making his unprofessionalism more egregious. Each lifeguard
and pool patron interviewed had directly witnessed and
experienced multiple instances of Mr. Cooper’s inappropriate
behavior.”
Decl. ¶ 36 (citing Ex. 3). Johnson further attests that Plaintiff’s termination was not
based on his race or gender but “on the facts presented in the investigation,” id. ¶ 40,
and that Plaintiff’s “returning to the pool or using the pool in June 2017” did not factor
into the decision, id. ¶ 39.
Morse attests that he signed the termination letter because he
believed the five student witnesses who accused Cooper of
engaging in inappropriate conduct. These student reports
were disturbing to me, particularly since Cooper was a
member of the University Police Department. I have never
had any member of the Police Department accused by this
many students of such conduct as Cooper.
Decl. of Phillip Morse ¶ 7, ECF No. 37-5 at 2-5. 3 He further attests that he
3
At all relevant times, Morse, a White man, was Chief of Police, Assistant Vice President of
AU’s Police Services and Emergency Management. His statements “are based on [his] personal
knowledge.” Decl. ¶¶ 1-2.
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has “never treated Cooper differently in any manner due to his race or sex”
and that the termination decision “was based on the facts presented in the
investigation[.]” Id. ¶ 8.
On June 19, 2019, the court dismissed Plaintiff’s common law claims of
defamation and intentional infliction of emotional distress, leaving only the Title VII
discrimination claim for resolution. See Mem. Op., ECF No. 17.
II. LEGAL STANDARD
Summary judgment is appropriate where there is no disputed genuine issue of
material fact, and the movant is entitled to judgment as a matter of law. F ED . R. C IV . P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A dispute is “genuine” only
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining
whether a genuine issue of material fact exists, the court must view all facts in the light
most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
The moving party bears the “initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the ‘pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits . . .’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp., 477 U.S. at 323. The non-moving party, in response, must “go beyond the
pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that there is a genuine issue
for trial.’” Id. at 324. To survive summary judgment the non-moving party must
“produce evidence . . . capable of being converted into admissible evidence.” Greer v.
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Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (citing Gleklen v. Democratic Cong.
Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000 (other citation omitted)). “If
the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted). “[A]t the
summary judgment stage the judge’s function is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Id. at 249.
III. ANALYSIS
Title VII’s anti-discrimination provision makes it unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a). Title VII claims may be proved by direct or
circumstantial evidence.
In the absence of direct evidence, as here, the court analyzes Title VII claims
under the well-established burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir.
2006); Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). Under this framework,
the plaintiff has the initial burden of proving a prima facie case of discrimination,
which “is not onerous.” 4 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981). While the plaintiff always carries the burden of persuasion, id. at 253, the
burden of proof then “shifts to the defendant ‘to articulate some legitimate,
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The two essential elements of a Title VII claim are that (i) the plaintiff suffered an adverse
employment action (ii) based on one or more statutorily protected categories. Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
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nondiscriminatory reason for the [action in question],’” Wiley v. Glassman, 511 F.3d
151, 155 (D.C. Cir. 2007) (quoting Texas Dep't of Cmty. Affairs, 450 U.S. at 253).
Defendant has offered such reasons; therefore, the court need only decide on summary
judgment whether Plaintiff has “produced evidence sufficient for a reasonable jury to
find that the employer’s asserted non-discriminatory reasons were not the actual reasons
and that the employer intentionally discriminated against the plaintiff on a prohibited
basis.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C .Cir. 2008) (citing
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008)); see Wheeler
v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016) (“In reviewing a
summary judgment motion where the defendant has proffered some legitimate reason
for its adverse employment action . . ., [t]he only question that remains is whether the
evidence creates a material dispute on the ultimate issue.”). The court considers
“whether a reasonable jury could infer intentional discrimination . . . from all the
evidence, including (1) the plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its action; 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).” Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)
(citations and internal quotation marks omitted)). “‘The ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.’” Wheeler, 812 F.3d at 1114 (quoting Texas
Dep't of Cmty. Affairs, 450 U.S. at 253).
“Title VII . . . does not authorize a federal court to become a super-personnel
department that reexamines an entity’s business decisions,” Barbour v. Browner, 181
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F.3d 1342, 1346 (D.C. Cir. 1999) (citation and internal quotation marks omitted), and a
court “may not ‘second-guess an employer’s personnel decision absent demonstrably
discriminatory motive.’” Fischbach v. District of Columbia Dep’t of Corr., 86 F.3d
1180, 1183 (D.C. Cir. 1996) (quoting Milton v. Weinberger, 696 F. 2d 94, 100 (D.C.
Cir. 1982)). Therefore, to establish that an employer’s reason for the personnel
decision was pretextual, a plaintiff must proffer evidence showing either “that a
discriminatory reason more likely motivated the employer or . . . that the employer’s
proffered explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs, 450 U.S.
at 256. Pretext may be shown “in a number of ways, including by offering evidence of
more favorable treatment of similarly situated persons who are not members of the
protected class or that the employer is lying about the proffered justification.” Royall v.
Nat'l Ass'n of Letter Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C. Cir. 2008). But “[i]f
the employer’s stated belief about the underlying facts is reasonable in light of the
evidence . . . there ordinarily is no basis for permitting a jury to conclude that the
employer is lying about the underlying facts.” Id. (alterations in original).
Plaintiff does not seriously dispute the legitimate, non-discriminatory reasons
underlying his termination. See Pl.’s Resp. to Def.’s Facts (“Pl.’s Resp.”), ECF No. 38-
4 (conceding numbered paragraphs 17-18, 20-23, 51-58, 69-70). Instead, he “invokes
comparator evidence in an effort to undercut [Defendant’s] explanations” and to show
that he was treated differently from similarly situated white employees. Burley v. Nat'l
Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015). Plaintiff also suggests
improprieties with the investigation, which under certain circumstances “can also
permit a factfinder to find pretext.” Id. at 296.
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1. Comparator Evidence
To prove pretext, Plaintiff’s evidence must show “that all of the relevant aspects
of [his] employment situation were nearly identical to those of the comparators.”
Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995).
“Factors that bear on whether someone is an appropriate comparator include the
similarity of the plaintiff’s and the putative comparator’s jobs and job duties, whether
they were disciplined by the same supervisor, and, in cases involving discipline, the
similarity of their offenses.” Burley, 801 F.3d at 301. “Whether two employees are
similarly situated ordinarily presents a question of fact for the jury,” but the court may
find that employees are not similarly situated as a matter of law if a reasonable jury
would be unable to reach that conclusion. Duru v. D.C., 303 F. Supp. 3d 63, 73
(D.D.C. 2018) (quoting George v. Leavitt, 407 F.3d 405, 414–15 (D.C. Cir. 2005)).
Plaintiff compares his situation to that of two white women and one white man:
(1) Lieutenant Rima Sifri, (2) Police Dispatcher Billie Cunningham, and (3) Academic
Multimedia Services Coordinator Scott O’Beirne. Johnson Decl. ¶ 46; Def.’s Facts ¶¶
80-81; see Pl.’s Stmt. of Material Facts in Dispute (“Pl.’s Disp. Facts”) ¶¶ 20-44, ECF
No. 38-3. None of these individuals are similarly situated to Plaintiff.
Lieutenant Sifri
Sifri, a White woman, was the supervisor of Plaintiff’s supervisor, Sergeant
Darryl Queen, from February 2016 until April 2016 when Queen complained to Captain
Sowers in writing that Sifri “had gossiped about him.” Morse Decl. ¶¶ 12-13, 16.
Sowers “immediately investigated” the complaint; the “gossiping allegations were
substantiated”; Morse and Sowers “removed” Sifri from her “new role of leading the
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Communications Unit” but did not fire her; and Sifri “received a verbal warning.” Id.
¶¶ 17-18.
As a Police Dispatcher, Plaintiff’s position was “subordinate to Sifri’s position
as Police Lieutenant,” and each “had different job responsibilities.” Id. ¶ 14; see Darryl
Queen’s Decl. in Supp. of Pl.’s Opp’n to Summ. J. ¶ 4, ECF No. 38-2 at 7-8 (“the
ranking within the department from highest to lowest goes like this: The Director or
Chief of the Police Department, Captains, Lieutenants, Sergeants, Corporals, and then
patrol officers and Dispatchers”) (emphases added)). Plaintiff has adduced no
comparative evidence to the contrary and in fact admits that he and Sifri “had different
roles.” Pl.’s Decl. ¶ 15. He adds that they “shared certain job responsibilities in
common,” but has identified only the duty of “responding to calls to the AU police
department,” id., which admittedly is a duty that “[e]very active officer . . . shared,” id.
¶ 16.
Even if Plaintiff’s and Sifri’s jobs were similar, their offenses were not. Sifri
was accused of and disciplined for gossiping about a co-worker, Def.’s Facts ¶ 109,
whereas Plaintiff was accused of and terminated for a “documented pattern of
inappropriate behavior” toward students that included “sexual advances.” 5 ECF No.
5
Plaintiff states that “Queen complained specifically of sexual harassment against Sifri,” Pl.’s
Resp. ¶¶ 109-110, but he has presented no corroborating evidence save Queen’s supporting
declaration prepared in November 2020. The evidentiary record includes derogatory and crude
remarks that Sifri allegedly made to other employees about Queen and about which Queen
supposedly complained to Sowers verbally. Queen Decl. ¶ 7. But Queen’s written complaint to
Sowers dated April 1, 2016, Johnson Decl., Ex. 12, neither refers to nor implies sexual harassment.
Rather, Queen submitted a “formal complaint about unprofessional behavior I have been made
aware” with respect to “rumors” about him, which, as discussed above, Defendant investigated.
Queen wrote that if Sifri is “in fact engaging in” such behavior, she would be “in violation of the
directive . . . about gossiping in the workplace.” Queen requested (1) his removal “from [Sifri’s]
direct supervision” because “she is spreading lies about me around the department” and (2) that
Sifri reveal her source of the rumors. Id. Nothing in the complaint suggests that Sifri made any
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37-4 at 98-99. Further, unlike Plaintiff’s situation, Captain Sowers investigated
Queen’s complaint against Sifri without involving Human Resources, much less
obtaining a recommendation of discipline. See Johnson Decl. ¶ 53 (“I was not involved
in [Queen’s] complaint as it was handled by the Department of Public Safety[.]”).
Consequently, the court concludes as a matter of law that no reasonable jury could find
Sifri and Plaintiff to be similarly situated.
Police Dispatcher Cunningham
Plaintiff suggests that in 2015, Cunningham, a White woman, was demoted from
Sergeant to Police Dispatcher (rather than fired) for allegedly distributing and
displaying pornographic images to other employees. Plaintiff admits, however, that he
has no direct knowledge of such occurrences. See Def.’s Facts ¶¶ 117-129 (citing Pl.’s
Depo.). Plaintiff’s witness, Darryl Queen, purports to testify about same but admits
that the “incidents and the resulting demotion” of Cunningham “took place before [he]
started working for AU.” Queen Decl. ¶ 14; see id. ¶ 1 (stating that he “speak[s]” from
his “own experience as a [former] Sergeant in the police department, or . . . from other
people with direct knowledge of the matter, who reported the information to me”).
Because such hearsay is “[in]capable of being converted into admissible evidence,”
Gleklen, 199 F.3d at 1369, the foregoing statements “cannot be considered in . . .
avoiding summary judgment,” Ragsdale v. Holder, 668 F. Supp. 2d 7, 16 (D.D.C.
2009).
derogatory remarks directly to Queen or that Queen personally witnessed what Sifri is alleged to
have said to other employees. Therefore, Plaintiff’s reliance on paragraph seven of Queen’s
declaration is misplaced, particularly where in the next paragraph Queen states falsely that
“Captain Sowers found Sifri engaged in sexual harassment.” Decl. ¶ 8.
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Defendant’s evidence establishes that unlike Plaintiff’s situation, neither Human
Resources nor Chief Morse received any complaints about Cunningham’s purportedly
similar behavior to trigger an investigation, Def.’s Facts ¶¶ 130-32 (citing Johnson
Decl. ¶¶ 60-62), and although Plaintiff disputes those facts, he has not come forward
with any evidence proving otherwise. Surmising that “AU; either H.R. or the police
department must have records,” Pl.’s Resp. to ¶ 130, does not suffice to defeat a post-
discovery summary judgment motion. Further, Defendant has shown that on May 26,
2015, Cunningham was issued “a Level III final written warning” for the dissimilar
conduct of failing to respond properly to a call and for interacting negatively with co-
workers and supervisors. Def.’s Facts ¶ 133 (citing Johnson Decl. ¶ 64 and Ex. 15).
Plaintiff acknowledges that a year later, in May 2016, Human Resources investigated
Cunningham for complaints of “inappropriate verbal conduct” among co-workers and
issued findings in her favor. Pl.’s Disp. Facts ¶ 35 (citing ECF No. 37-3 at 77-81,
Review Summary of “Allegations of Malicious Gossip”). And when asked during his
deposition to name any other AU employee who “had five different people complain
that they made inappropriate comments,” was accused “of giving a false name to a
student,” and “of lingering around an area where a student worked in order to have
further contact with the student,” Plaintiff could not. Def.’s Facts ¶¶ 71-74 (citing
Depo. at 70, 71, 72, 73). The court concludes that no reasonable jury could find from
such evidence that Cunningham and Plaintiff were similarly situated.
Librarian O’Beirne
Plaintiff claims that O’Beirne, a White man, was placed on administrative leave
for attacking a Black female student during an anti-Trump rally, even though this was
his third offense for violating AU’s misconduct policy. Def.’s Facts ¶¶ 138-40 (citing
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Cooper Depo.). Plaintiff admits that he lacks personal knowledge of the incident and
when it occurred, having learned of it from a newspaper article and a YouTube video.
Id. ¶¶ 143-47 (citing Cooper Depo. at 49, 51). Nevertheless, it is undisputed that
Beirne was employed as a librarian at the University’s Library, not the Police
Department; he and Plaintiff did not report to the same supervisor; and his job
responsibilities had no connection to the Police Department. Id. ¶¶ 136-37. Further,
Beirne’s purported conduct toward one student, id. ¶ 140, was remarkably different
from Plaintiff’s harassing conduct toward multiple students. And Beirne received a
Final Written Warning for a Level II violation, ECF No. 37-3 at 83, whereas Plaintiff’s
violation was Level III. Therefore, the court concludes as a matter of law that no
reasonable jury could find any comparison, much less a similar one, between O’Beirne
and Plaintiff.
2. Defendant’s Investigation
As indicated above, a “reasonable jury can conclude that an employer’s reasons
were pretextual and that discrimination was afoot if a plaintiff can show that an
employer’s ‘investigation, which was central to and culminated in [the plaintiff's]
termination, was not just flawed but inexplicably unfair.’” Burley, 801 F.3d at 299
(quoting Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C. Cir. 2006)).
Thus, a plaintiff may survive a summary judgment motion by (1) showing that “the
employer is making up or lying about the underlying facts that formed the predicate for
the employment decision,” (2) adducing “evidence that a factual determination
underlying [the] adverse employment action is egregiously wrong, because ‘if the
employer made an error too obvious to be unintentional, perhaps it had an unlawful
motive for doing so,’” Burley, 801 F.3d at 296 (quoting Fischbach v. D.C. Dep't of
14
Corr., 86 F.3d 1180, 1183 (D.C. Cir.1996)), or (3) showing that the investigation was
“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,” id. (citing
Mastro, 447 F.3d at 855. That Plaintiff does not dispute the core facts and conclusions
supporting the termination decision, Cf. Def.’s Facts ¶¶ 68-70 with Pl.’s Resp. to Facts
¶¶ 68-71 (“Undisputed; these [are] not material facts”), undermines this theory of the
case.
Nevertheless, Plaintiff argues “possible pretext” based on Defendant’s alleged
failure to follow Title IX’s investigative procedures. Opp’n at 21-22. This argument
fails as a matter of law because where, as here, “a plaintiff alleges facts that are
actionable under Title VII and for which Title VII provides a remedy, Title VII
preempts virtually all other federal causes of action,” Kittner v. Gates, 783 F. Supp. 2d
170, 174 (D.D.C. 2011) (citation omitted), including Title IX claims. See Morris v.
Wallace Cmty. Coll.-Selma, 125 F. Supp. 2d 1315, 1343 (S.D. Ala. 2001), aff'd sub
nom. Morris v. Wallace Cmty., 34 Fed. App'x 388 (11th Cir. 2002) (holding “in light of
the weight of authority that a Title IX claim of employment discrimination may not be
maintained to the extent that Title VII provides a parallel remedy”) (surveying cases)).
Finally, Plaintiff argues that Defendant’s failure to consult Queen as his direct
supervisor “suggests that AU had a nefarious racial or gender-based motive.” Opp’n at
18. But Queen states that Defendant followed “the usual course of conduct” where the
“input” of immediate supervisors was not sought. Queen Decl. ¶¶ 16-17, 27.
According to Queen, “H.R. would make [the] decision and investigative findings, and
send the letter to the immediate supervisors to sign and hand-deliver to the employee.”
Id. ¶ 16. Therefore, consistent with practice, Defendant did not seek Queen’s input
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with respect to Plaintiff or Billie Cunningham, whom he also supervised. Id. And
while Queen opines that the disciplinary process should have been different, he affirms,
based on his experience as a supervisor, that for “the purposes of discipline, it did not
matter who your ‘direct supervisor’ was . . . it was all carried out and decided by Phillip
Morse, and the H.R. department.” Id. ¶ 26. Queen’s statements corroborate
Defendant’s version that “Finegan’s and Scrimenti’s investigation did not differ in
approach from any other investigation,” and it was “in line with standard practice[.]”
Johnson Decl. ¶ 41. Therefore, the court concludes that no reasonable jury could infer
pretext from the pre-termination investigation.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment will be
GRANTED. A corresponding order will issue separately.
Date: September 23, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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