Akridge v. Gallaudet University ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES AKRIDGE, :
:
Plaintiff, : Civil Action No.: 06-0346 (RMU)
:
v. : Re Document No.: 23, 36
:
GALLAUDET UNIVERSITY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter comes before the court on the defendant’s motion for summary judgment.
The plaintiff is a hearing-impaired African-American male who was employed at Gallaudet
University (“the defendant”), an educational institution with programs and services specifically
designed to accommodate the hearing-impaired. The plaintiff alleges that the defendant
subjected him to a hostile work environment, discriminated against him on the basis of his race
and disability and retaliated against him, in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq. Because the defendant has demonstrated that there is no genuine issue
of material fact and that it is entitled to summary judgment, the court grants the defendant’s
motion.
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff was employed by the defendant for fourteen years, most recently as an
Academic Counselor. Compl. ¶ 8. In 2004, the plaintiff applied for the position of Career
Center Director (“Director”). Id. ¶ 13. Of the fifty-two applicants who applied for the position,
the plaintiff was one of thirteen chosen for an interview by the screening committee. Def.’s Mot.
at 13 & Ex. 13. Of the thirteen chosen for an interview, three were African-American and eight
were deaf. Id. at 14 & Ex. 13. After the screening committee interviewed the thirteen
candidates, Steve Koppi, a non-disabled, 1 white male was selected for the position. Def.’s
Statement of Material Facts Not in Genuine Dispute (“Def.’s Statement”) ¶¶ 32-34; Compl. ¶ 15.
The Director is responsible for assisting students in preparing for future employment or
advanced studies, leading the efforts to offer on-campus employment and internships, educating
and counseling students regarding career choices, developing relationships with potential
employers and facilitating job placement after graduation. Def.’s Mot., Ex. 7. The Director also
supervises seven professional staff members and manages the Career Center budget. Id. The job
listing for the Director position set forth the following requirements for the position:
Master’s degree plus three years progressively responsible experience in
counseling, student affairs, human development, guidance, or a closely related
field. Two years demonstrated competency in a
management/supervisory/coordination capacity. Working knowledge of
educational, psychological, social, cultural and vocational aspects of deafness.
Knowledge of career and general student development theory at the post-
secondary educational level. Experience in program development. Demonstrated
ability to collect, organize, synthesize, analyze and present information clearly.
Excellent communication skills. Willingness to become fluent in American Sign
Language.
Id.
1
Hearing impairment constitutes a disability within the meaning of the ADA. See 42 U.S.C. §
12102(2)(A); see also Adeyami v. Dist. of Columbia, 2007 WL 1020754, at *13 (D.D.C. Mar. 31,
2007) (explaining that “[permanent] [h]earing . . . loss fits the definition of ‘disability’ under the
ADA”) (internal citations omitted).
2
At the time of the interview, the plaintiff was enrolled in the doctoral program in Special
Education Administration and Supervision at Gallaudet University. Pl.’s Opp’n at 3; Def.’s
Mot., Ex. 19 at 0367 (Pl.’s Resume). Koppi, the selected candidate, had a Master’s Degree in
College Student Personnel from the University of Maryland. Def.’s Mot., Ex. 19 at 0407 (Koppi
Resume). As part of the interview, each candidate had to present a vision plan for the Career
Center. Id. at 15. The screening committee members noted that the plaintiff’s presentation,
which primarily focused on student enrollment and attrition, was weak and did not address the
concerns of the Career Center. Id., Ex. 21. In its hiring recommendation, the committee wrote
that the plaintiff gave “weak responses” in his interview and had a “negative attitude.” Id., Ex.
13. The committee ranked the plaintiff the lowest of the thirteen interviewed candidates, id. at
14 & Ex. 13, and unanimously chose not to hire the plaintiff, stating that “he demonstrated
limited knowledge and skills related to career development in a higher education setting, and his
performance in his interview reflected his inexperience in the field.” Id., Ex. 14 (“Palmer Aff.”)
¶ 9; see also id., Ex. 15 (“Moore Aff.”) ¶ 9; id., Ex. 16 (“Cook Aff.”) ¶ 9.
Koppi, the selected candidate, had a Master’s Degree in College Student Personnel from
the University of Maryland. Def.’s Mot., Ex. 19 at 0407 (Koppi Resume). The committee
ranked Koppi first out of the thirteen interviewed candidates, observing that he was “[h]ighly
organized . . . [and had] [e]xcellent experience in career development and administration at [the]
postsecondary level[,] . . . [e]xcellent, thorough, up-to-date knowledge of career development
theory and practice [and] . . . [s]trong management and budget experience.” Id., Ex. 13.
On February 6, 2005, the plaintiff filed a complaint with the D.C. Office of Human
Rights (“DCOHR”) and the Equal Employment Opportunity Commission (“EEOC”) alleging
3
that the defendant had discriminated against him on the basis of his race and disability. 2 Id., Ex.
1 (“Pl.’s EEOC Charge”). The plaintiff also alleged retaliation, noting that in 1998 he had filed
an internal race discrimination complaint. Id. On August 18, 2005, the DCOHR concluded that
there was “no probable cause” to believe the defendant had for retaliated or discriminated against
the plaintiff on the basis of his race or disability. Id., Ex. 2. On November 23, 2005, the EEOC
adopted the findings of the DCOHR and issued the plaintiff a Dismissal and Notice of Rights
letter (“the right-to-sue letter”). Id., Ex. 3. In his complaint, the plaintiff alleges that he received
the right-to-sue letter on December 1, 2005, Compl. ¶ 5; however, he later failed to respond to an
interrogatory asking for the specific date on which he received the letter, Def.’s Mot., Ex. 4
(“Pl.’s Resp. to Def.’s Interrog. No. 16”). In a subsequent letter to the defendant dated April 13,
2007, the plaintiff stated he received the right-to-sue letter on December 2, 2005. Id., Ex. 5.
On February 27, 2006, the plaintiff commenced this action. See generally Compl. The
plaintiff alleges that the defendant intentionally discriminated against him on the basis of his race
and disability and retaliated against him in violation of Title VII and the ADA. See generally id.
The allegedly discriminatory actions include delaying the plaintiff’s employment advancement,
failing to award the plaintiff the Director position and condoning retaliatory and hostile behavior
directed against the plaintiff after he sought employment advancement. Id. ¶¶ 9, 15, 17. On
August 20, 2007, the defendant filed this motion for summary judgment, arguing that the
plaintiff did not commence his lawsuit in a timely manner, failed to exhaust his administrative
remedies with respect to his hostile work environment claim, failed to allege any hostile conduct
as a matter of law and failed to allege any facts in support of his claim of retaliation. See
generally Def.’s Mot. The parties then engaged in mediation, which was ultimately unfruitful.
2
The plaintiff’s complaint includes an additional allegation of discrimination on the basis of his
gender, but the plaintiff explained during his deposition that he was no longer pursuing that
claim. Def.’s Mot., Ex. 6 (“Pl.’s Dep.”) at 24.
4
See, e.g., Minute Order (Sept. 26, 2007); Minute Order (Oct. 3, 2007). The motion has been
fully briefed, and the court now turns to the applicable legal standards and the parties’
arguments.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive
law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” is one whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion
for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to
the absence of evidence proffered by the nonmoving party, a moving party may succeed on
summary judgment. Id.
5
The nonmoving party may defeat summary judgment through factual representations
made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.
1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338
(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose
of the summary judgment device, which is to weed out those cases insufficiently meritorious to
warrant the expense of a jury trial.” Greene, 164 F.3d at 675.
Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish
proof of discrimination, the court should view summary judgment motions in such cases with
special caution. See Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir.1997), overturned
on other grounds, 156 F.3d 1284 (D.C. Cir.1998) (en banc); see also Johnson v. Digital Equip.
Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. Timeliness of the Plaintiff’s Complaint
1. Legal Standard for Timeliness
A plaintiff aggrieved under Title VII or the ADA must commence a civil action within
ninety days after receipt of a right-to-sue letter from the EEOC. 42 U.S.C. §§ 2000e-5(f)(1),
12117(a); Hogue v. Roach, 967 F. Supp. 7, 8 (D.D.C. 1997). Absent evidence indicating
otherwise, the right-to-sue letter is presumed to have been mailed on the date of its issuance.
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 (1984). When the receipt date of the
right-to-sue letter is unknown or in dispute, Federal Rule of Civil Procedure 6(d) creates a
presumption that the letter was received three days after it was mailed, which includes
intervening Saturdays, Sundays and holidays (“the three-day rule”). Id. at 148 n.1 (applying the
three-day rule to Title VII cases); accord Howard v. Fenty, 580 F. Supp. 2d 86, 91 (D.D.C.
6
2008); see also Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir. 2001) (concluding that “a
presumption of receipt is appropriate whenever the actual receipt date is unknown or disputed”).
For the purposes of computing the ninety-day period within which the suit must be filed,
the court begins counting the day after the right-to-sue letter was received. FED. R. CIV. P.
6(a)(1) (directing courts to “exclude the day of the event that triggers [the ninety-day
countdown].” When the ninetieth calendar day is a Saturday, Sunday or legal holiday, the
ninety-day period does not expire until the end of the next day which is not a Saturday, Sunday
or legal holiday. Id. 6(a)(1)(C).
2. The Plaintiff’s Action Was Timely
In its motion for summary judgment, the defendant argues that the plaintiff’s complaint is
untimely and thus barred because the three-day rule applies and the action was filed ninety-three
days after the plaintiff received the right-to-sue letter from the EEOC. 3 Def.’s Mot. at 4-5. In
response, the plaintiff claims that he received the right-to-sue notice on December 2, 2005, that
the three-day rule thus does not apply and that the action is timely. Pl.’s Opp’n at 6.
The court has no need to resolve this dispute; for, whether the plaintiff received the right-
to-sue letter on December 2, 2005 or the court applies the three-day rule, the plaintiff’s action is
still timely. If the plaintiff received the right-to-sue letter on December 2, 2005, see Def.’s Mot.,
Ex. 5, the ninety-day period would have elapsed on March 2, 2006, three days after the plaintiff
filed his complaint. And if the court instead applies the three-day rule, then the plaintiff
presumptively received the right-to-sue letter on Saturday, November 26, 2005, see id., Ex. 3;
FED. R. CIV. P. 6(a), and the ninety-day time period did not begin to run until Sunday, November
27, 2005. See id. 6(a)(1). Ninety days from November 27, 2005 is Saturday, February 25, 2006;
3
The defendant reaches this result by calculating that the plaintiff filed his complaint ninety-six
days after the EEOC issued its right-to-sue letter and subtracting three days. See Def.’s Mot. at 2.
7
accordingly, the time period did not expire until Monday, February 27, 2006, see id. 6(a)(1)(C),
the day the plaintiff commenced this action. Under either calculation, therefore, the plaintiff’s
action is timely.
C. The Plaintiff’s Hostile Work Environment Claim
1. Legal Standard for Exhaustion of Administrative Remedies
In actions brought under Title VII, a court has authority over only those claims that are
(1) contained in the plaintiff’s administrative complaint or claims “like or reasonably related to”
those claims in the administrative complaint and (2) claims for which the plaintiff exhausted
administrative remedies. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); Caldwell v.
Serv. Master Corp., 966 F. Supp. 33, 49 (D.D.C. 1997). It is the defendant’s burden to prove by
a preponderance of the evidence that the plaintiff failed to exhaust administrative remedies.
Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985) (stating that “because untimely exhaustion of
administrative remedies is an affirmative defense, the defendant bears the burden of pleading and
proving it”). Meager, conclusory allegations that the plaintiff failed to exhaust his administrative
remedies will not satisfy the defendant’s burden. Id. at 12 (noting that a mere assertion of failure
to exhaust administrative remedies without more is “clearly inadequate under prevailing
regulations to establish a failure to exhaust administrative remedies”).
Dismissal results when a plaintiff fails to exhaust administrative remedies. Gillet v. King,
931 F. Supp. 9, 12-13 (D.D.C. 1996) (dismissing the plaintiff’s Title VII claim because he failed
to exhaust his administrative remedies).
2. The Court Grants Summary Judgment to the Defendant
on the Plaintiff’s Hostile Work Environment Claim
The defendant argues that the plaintiff’s hostile work environment claim should be
dismissed because the plaintiff failed to exhaust his administrative remedies. Def.’s Mot. at 10-
8
12. The plaintiff, in response, simply states, “Plaintiff raised the issue of hostile work
environment . . . in his administrative charge,” and cites his deposition transcript. Pl.’s Opp’n at
13.
As an initial matter, the court notes that the plaintiff did not specifically make a hostile
work environment allegation before the EEOC. See generally Pl.’s EEOC Charge. In fact, the
only conduct discussed or referenced in the plaintiff’s EEOC Charge is his non-selection for the
Director position. See generally id. Nevertheless, the exhaustion of administrative remedies
requirement is less stringent for hostile work environment claims than for discrete claims of
discrimination or retaliation. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122
(2002) (concluding “that a Title VII plaintiff raising claims of discrete discriminatory or
retaliatory acts must file his charge within the appropriate time . . . however, [a hostile work
environment claim] will not be time barred so long as all acts which constitute the claim are part
of the same unlawful employment practice and at least one act falls within the time period”); see
also Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107 n.10 (D.D.C. 2005) (recognizing that “[u]nlike
discrete claims of discrimination and retaliation, the exhaustion requirement on a hostile work
environment claim is less stringent . . . [and the p]laintiff need only have filed an EEO complaint
alleging some of the claims that comprise the hostile work environment claim”). A plaintiff may
adequately exhaust administrative remedies without specifically alleging a hostile work
environment claim in his formal EEO complaint so long as the hostile work environment claim is
“like or reasonably related to the allegations . . . [in the formal EEO complaint] and grows out of
such allegations.” Roberson v. Snow, 404 F. Supp. 2d 79, 96 (D.D.C. 2005) (citing Jones v.
Billington, 12 F. Supp. 2d 1, 7 (D.D.C. 1997)); accord Na’im v. Rice, 577 F. Supp. 2d 361, 369-
70 (D.D.C. 2008).
9
In support of his hostile work environment claim the plaintiff claims that
[t]he hostile environment is the director not speaking to you, just walking past
you, he [sic] relaying messages through a third-party, me practically keeping my
office door closed because, you know, there’s just that tension that come [sic] up
when he passes through[;] so that’s the type of hostile environment that I’m in.
Pl.’s Opp’n at 13 (quoting Pl.’s Dep. at 33). The plaintiff also proffers that when he attempted to
take classes for his doctoral program that conflicted with his work schedule, he had to take
annual leave or find weekend classes while other employees were allowed to take evening
classes. Id. Additionally, the plaintiff cites an instance during an administrative restructuring
when he was allegedly demoted. Id. at 14. As a result, in order for the plaintiff to enjoy
commensurate status and pay to the position he held prior to the restructuring, he had to apply for
other positions. Id. He alleges he was the “only minority out of approximately 13 staff from that
particular department who applied for various jobs” and did not get a job from those interviews.
Id. Lastly, the plaintiff states that another of the defendant’s employees sent out a memo to the
African-American faculty “requesting an assembly to discuss the discrimination pattern on
within [sic] the institution,” but that the assembly never occurred because that employee was
reprimanded. Id. Beyond these descriptions of the defendant’s allegedly hostile conduct, the
plaintiff fails to cite any legal authority to support his contention that he adequately exhausted
his administrative remedies. See id. at 13-15.
Although the standard for exhaustion of a hostile work environment claim is “less
stringent” than that for discrete acts of discrimination or retaliation, Nurriddin, 382 F. Supp. 2d
at 107 n.10, the plaintiff has nonetheless failed to meet this lower threshold. The plaintiff’s
EEOC Charge alleges one discrete act of discrimination – that the plaintiff was not hired for the
Director position. See generally Pl.’s EEOC Charge. The plaintiff does not rely on this non-
selection in support of his hostile work environment claim, see Pl.’s Opp’n at 13-15, and he does
10
not allege – or even allude to – any of the facts upon which he does rely in his EEOC Charge, see
generally Pl.’s EEOC Charge. That is, the plaintiff’s EEOC Charge is solely devoted to his
allegation of discrimination based on his non-selection for the Director position. See generally
id. In the EEOC Charge, the plaintiff does not address or even reference any events occurring
before or after he applied, interviewed and was not selected for that job and, despite the fact that
the charge form allows for the plaintiff to list a date range for the allegedly discriminatory
conduct, the plaintiff specifically lists the only relevant date as August 1, 2004, the first day of
the month in which the plaintiff learned he was not selected for the Director position. Id. at 1.
The plaintiff has, thus, failed to demonstrate that his hostile work environment claim is “like or
reasonably related to” the allegation in his EEOC Charge. See Hodge v. United Airlines, 666 F.
Supp. 2d 14, 22 (D.D.C. 2009) (determining that the plaintiff had not exhausted his
administrative remedies where “[t]he only possible reference to a hostile work environment [in
the administrative charge] could be [the plaintiff’s] indication that he ‘wrote a letter of
harassment’ [sic] to headquarters, but this information is not specific or elaborate enough to
allow the EEOC to infer the existence of a hostile work environment”); Pearsall v. Holder, 610
F. Supp. 2d 87, 98 (D.D.C. 2009) (dismissing the plaintiff’s hostile work environment claim
because he failed to argue it at the administrative level); Park, 71 F.3d at 907-08 (holding that
the plaintiff had not exhausted her administrative remedies because her EEOC charge “did not
express or even hint at a . . . hostile work environment claim”). Because the plaintiff has not
exhausted his administrative remedies with respect to his hostile work environment claim, the
court grants summary judgment to the defendant on that claim.
11
D. The Plaintiff’s Discrimination Claims
1. Legal Standard for Discrimination
When the defendant in a Title VII or the ADA 4 case presents a legitimate, non-
discriminatory reason for its actions, 5 the district court need resolve only one question to
adjudicate a motion for summary judgment: “Has the employee produced sufficient evidence for
a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated against the employee on the basis
of race, color, religion, sex, or national origin?” Brady v. Office of the Sergeant at Arms, U.S.
House of Representatives, 520 F.3d 490, 494 (D.C. Cir. 2008); Adeyemi v. Dist. of Columbia,
525 F.3d 1222, 1226 (D.C. Cir. 2008) (applying the Brady rationale to ADA cases). The court
must consider whether the jury could infer discrimination from (1) the plaintiff’s prima facie
case, (2) any evidence the plaintiff presents to attack the employer’s proffered explanation, and
(3) any further evidence of discrimination that may be available to the plaintiff. Waterhouse v.
District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr.,
4
The ADA prohibits employers from discriminating against a “qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). The ADA defines disability in relevant part as “a physical
or mental impairment that substantially limits one or more [of a person’s] major life activities.”
Id. § 12102(2)(A). Congress, however, specifically limited the ADA’s protections to those
qualified individuals with a disability who, “with or without reasonable accommodation, can
perform the essential functions of the positions they hold.” Id. § 12111(8). The ADA provides
that consideration be given to the employer’s judgment in determining what functions are
essential. See id.
5
In those rare cases in which the defendant fails to present a legitimate, non-discriminatory reason
for its actions, the court must follow a three-part burden-shifting analysis known as the
McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (noting
that once the defendant presents a legitimate non-discriminatory reason “the McDonnell Douglas
framework . . . disappears, and the sole remaining issue is discrimination vel non”) (citing
McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973)); see also Brady, 520 F.3d at 494
(explaining that “the prima facie case is a largely unnecessary sideshow”).
12
156 F.3d 1284, 1291 (D.C. Cir. 1998)). The plaintiff need not present evidence in each of these
categories to avoid summary judgment. Aka, 156 F.3d at 1289. Rather, the court should assess
the plaintiff’s challenge to the employer’s explanation in light of the total circumstances of the
case. Id. at 1291.
2. The Court Grants Summary Judgment to the Defendant
on the Plaintiff’s Race Discrimination Claim
The plaintiff alleges that the defendant discriminated against him based on his race 6 by
hiring Koppi, a less-qualified white male, for the Director position. Compl. ¶ 17-18; Pl’s
Statement of Material Facts in Dispute ¶ I. First, the plaintiff notes he was enrolled in a doctoral
program for Special Education Administration and Supervision at the time of the hiring, Def.’s
Mot., Ex. 19 at 0367 (Pl.’s Resume), while Koppi possessed only a Master’s Degree in College
Student Personnel, id. at 0407 (Koppi Resume). The plaintiff contends that, unlike him, the
other candidates “did not have experience at the university level . . . did not have an employment
background in employment services . . . did not work with individuals with disabilities in
employment . . . [and] did not have administrative experiences.” Pl.’s Dep. at 80. The defendant
responds that six other candidates including Koppi possessed those qualifications, and that it
chose Koppi over the plaintiff because Koppi was the most qualified candidate for the job.
Def.’s Mot. at 13-14.
The screening committee noted in its hiring recommendation that the plaintiff gave
“weak responses” in his interview and had a “negative attitude.” Id., Ex. 13. In addition, it
critiqued the plaintiff’s presentation as not relevant to the issues faced by the Career Center. Id.,
Ex. 21. The committee ranked the plaintiff the last of the thirteen interviewed candidates, id.,
Ex. 13, and unanimously chose not to hire the plaintiff because “he demonstrated limited
6
The plaintiff previously withdrew his claim of gender discrimination. See supra n.2.
13
knowledge and skills related to career development in a higher education setting, and his
performance in his interview reflected his inexperience in the field. Palmer Aff. ¶ 9; see also
Moore Aff. ¶ 9; Cook Aff. ¶ 9.
In contrast, the committee ranked Koppi first out of the thirteen interviewed candidates
and selected him for the job because he was “[h]ighly organized . . . [and had] [e]xcellent
experience in career development and administration at [the] postsecondary level . . . [e]xcellent,
thorough, up-to-date knowledge of career development theory and practice[, and] . . . [s]trong
management and budget experience.” Def.’s Mot., Ex. 13.
Because the defendant has asserted a legitimate, nondiscriminatory reason for why the
plaintiff was not selected for the job, namely that the plaintiff was not the most qualified
candidate, the court turns to the central matter in dispute: whether the plaintiff has produced
sufficient evidence for a reasonable jury to conclude the defendant’s asserted nondiscriminatory
reason for the personnel action was a pretext for discrimination. See Brady, 520 F.3d at 494. To
show pretext, the plaintiff must demonstrate “both that the reason was false, and that
discrimination . . . was the real reason.” Weber, 494 F.3d at 186 (quoting Hicks, 509 U.S. at
515); see also Houston v. Sectek, Inc., 2010 WL 322251, at *5 (D.D.C. Jan. 28, 2010)
(concluding that even if the defendant’s asserted justification for reassigning an African-
American employee’s job responsibilities to another employee was pretext, the defendant was
entitled to summary judgment because the plaintiff offered insufficient evidence from which a
reasonably jury could infer that the true motivation for the plaintiff’s actions was racial
discrimination).
To begin, the court notes that even though the plaintiff was in a Ph.D. program at the time
of the interview, Mot., Ex. 19 at 0367 (Pl.’s Resume), and Koppi only had a Master’s degree, id.
14
at 0407 (Koppi Resume), the job only required a Master’s degree, Def.’s Mot., Ex. 7.
Furthermore, although, the plaintiff asserts that he was more qualified than Koppi and the other
candidates, he offers nothing beyond his own deposition testimony to substantiate that assertion.
Pl.’s Opp’n at 8-12. Without more, the plaintiff has not produced evidence sufficient to establish
pretext. See Hastie v. Henderson, 121 F. Supp. 2d 72, 81 (D.D.C. 2000) (determining that there
was no genuine issue of material fact because the plaintiff provided no evidence “other than her
own self-serving and conclusory statement” that she completed more work than her co-worker to
show that the reason her employer gave her a lower performance rating was pretext); Waterhouse
v. Dist. of Columbia, 124 F. Supp. 2d 1, 7 (D.D.C. 2000), abrogated on other grounds by Mastro
v. Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006) (holding that the plaintiff
cannot establish pretext based on her self-serving affidavit and own subjective assessment that
she was qualified for the position).
The plaintiff also alleges that the defendant has an “institutionalized practice of
discriminating against qualified minorities” because he applied for and was denied nine different
positions at Gallaudet over the course of fourteen years working there, each of which was
supposedly filled by less qualified white applicants. Pl.’s Opp’n at 7-8. He does not, however,
offer any details regarding the previous positions to which he applied or the people hired to fill
those positions. See Pl.’s Opp’n at 8-12; see also Pl.’s Dep. at 26-27, 60-61. As such, the
plaintiff has not proffered sufficient evidence to raise a genuine issue of material fact regarding
the defendant’s reasons for not hiring him. See Banks v. Dist. of Columbia, 498 F. Supp. 2d 228,
235 (D.D.C. 2007) (holding that the plaintiff failed to establish an inference of discrimination
based on comparing herself to similarly situated employees because she could not specifically
name any such employee); Vasilevsky v. Reno, 31 F. Supp. 2d 143, 150 (D.D.C. 1998) (holding
15
that the “plaintiff’s opinion of the relative merits of her credentials as opposed to those of
selected individuals is irrelevant”). Accordingly, the court grants the defendant’s motion for
summary judgment on the plaintiff’s race discrimination claim.
3. The Court Grants Summary Judgment to the Defendant
on the Plaintiff’s Disability Discrimination Claim
The plaintiff alleges that the defendant failed to select him for the Director position
because of his hearing impairment. Compl. ¶ 27. Koppi, who was hired for the position, has no
such disability. Id. The defendant contends that the plaintiff was not hired for the position
because he was not the most qualified candidate for the job. Id. at 13.
Because the defendant has asserted a legitimate, nondiscriminatory justification for the
challenged personnel action as described above, the court forgoes an examination of the
plaintiff’s prima facie case and turns directly to whether the plaintiff has produced sufficient
evidence for a reasonable jury to conclude that the defendant’s asserted nondiscriminatory reason
for hiring Koppi was a pretext for discrimination. See Aka, 156 F.3d at 1288.
Although the plaintiff contends that Koppi is actually less qualified for the Director
position because he lacked sign language skills, Pl.’s Opp’n at 3, the position only required
candidates to have a “willingness to become fluent in American Sign Language,” Def.’s Mot.,
Ex. 7, which Koppi demonstrated according to the screening committee, see Palmer Aff. ¶ 9;
Moore Aff. ¶ 9; Cook Aff. ¶ 9. The plaintiff asserts that the defendant engages in
institutionalized discrimination against individuals with hearing impairments because it “denied
the plaintiff numerous job advancement opportunities,” Pl.’s Opp’n at 7; but these allegations are
generalized, conclusory and uncorroborated by any evidence other than the plaintiff’s own
deposition testimony, which is insufficient to establish a triable issue of fact as to pretext. See
supra Part III.D.2; Waterhouse, 124 F. Supp. 2d at 7. Again, the plaintiff does not provide any
16
specific information regarding the jobs he has been denied or who filled those positions, as
needed for the court to determine if the defendant’s non-discriminatory reason was pretext. See
Banks, 498 F. Supp. 2d at 235 (holding that the plaintiff failed to establish an inference of
discrimination based on comparing herself to similarly situated employees because she could not
specifically name any such employee). Consequently, the court grants summary judgment to the
defendant on the plaintiff’s ADA claim.
F. The Plaintiff’s Retaliation Claim
1. Legal Standard for Retaliation
To prevail on a claim of retaliation, a plaintiff must follow the McDonnell Douglas
framework. 7 Taylor v. Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009) (observing that
“[r]etaliation claims based upon circumstantial evidence are governed by the three-step test of
McDonnell Douglas Corp. v. Green”); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d
647, 651 (D.C. Cir. 2003) (applying the McDonnell Douglas framework to a Title VII retaliation
claim).
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in
a statutorily protected activity, (2) a reasonable employee would have found the challenged
action materially adverse, 8 and (3) there existed a causal connection between the protected
activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 67-69 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). The plaintiff’s burden
7
See supra Part III.D.1.
8
In the retaliation context, the term “adverse action” “encompass[es] a broader sweep of actions
than those in a pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C.
Cir. 2008). Thus, “[r]etaliation claims are ‘not limited to discriminatory actions that affect the
terms and conditions of employment’ and may extend to harms that are not workplace-related or
employment-related so long as ‘a reasonable employee would have found the challenged action
materially adverse.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68
(2006)).
17
is not great: he “need only establish facts adequate to permit an inference of retaliatory motive.”
Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).
As with discrimination claims, if the employer successfully presents a legitimate, non-
retaliatory reason for its actions, “the presumption raised by the prima facie is rebutted and drops
from the case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citation
omitted); Brady, 520 F.3d at 494 (noting that “the prima facie case is a largely unnecessary
sideshow”).
The strength of the plaintiff’s prima facie case, especially the existence of a causal
connection, can be a significant factor in his attempt to rebut the defendant’s legitimate non-
retaliatory reason for the adverse action. See Aka, 156 F.3d at 1289 n.4 (stating that “a prima
facie case that strongly suggests intentional discrimination may be enough by itself to survive
summary judgment”); Laurent v. Bureau of Rehab., Inc., 544 F. Supp. 2d 17, 23 n.5 (D.D.C.
2008) (holding that the plaintiff cannot establish pretext because “she is unable to show any
causal connection”); Meadows v. Mukasey, 2008 WL 2211434, at *5-6 (D.D.C. May 29, 2008)
(holding that the plaintiff demonstrated pretext in part by establishing a causal connection). The
plaintiff may establish a causal connection “by showing that the employer had knowledge of the
employee’s protected activity, and that the [retaliatory] personnel action took place shortly after
that activity.” Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (quoting Mitchell v.
Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)).
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2. The Court Grants Summary Judgment to the Defendant
on the Plaintiff’s Retaliation Claim
The plaintiff alleges that the defendant’s failure to select him for the Director position
was an act of retaliation against him because of “his prior complaints of discrimination.” 9 Pl.’s
Opp’n at 15. The plaintiff also believes that he was retaliated against by screening committee
member Palmer for not “kowtowing to his title.” Pl.’s Dep. at 47-50. Lastly, the plaintiff claims
that his e-mail account was deleted “around the time” of his first discrimination complaint
against the university. Id. at 153.
The defendant argues that the plaintiff has not established a prima facie case of
retaliation. Def.’s Mot. at 16-17. Specifically, the defendant argues that the plaintiff’s alleged
failure to “kowtow” to Palmer does not constitute “protected activity” as a matter of law, id. at
16, and contends that the deletion of the plaintiff’s e-mail account is inconsequential because it
does not constitute an adverse action, id. Furthermore, the defendant argues there is no evidence
of a causal link between its decision not to hire the plaintiff for the Director position and the
plaintiff’s protected conduct. Id. at 16-17.
The plaintiff’s failure to “kowtow” to Palmer does not constitute protected activity
because there is no evidence that such behavior was in protest of an unlawful employment
practice by the defendant. 42 U.S.C. 2000e-3(a); see also Jones v. Billington, 12 F. Supp. 2d 1,
13 (D.D.C. 1997), (stating that retaliation must be “based on the fact that an employee has
opposed any practice that is an unlawful employment practice, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing”)
(internal citations omitted) aff’d without op., 1998 WL 389101 (D.C. Cir. June 30, 1998). The
9
In his administrative charge, the plaintiff did not check off the box available for “retaliation;”
however, the DCOHR and the EEOC investigated and ruled on this claim. See Def.’s Mot., Exs.
1 & 2.
19
only specific protected activity alleged by the plaintiff was the internal discrimination complaint
he filed in 1998. 10 See Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 31 (D.C. Cir. 1997)
(holding that letters to employers protesting discrimination constitute protected activity).
Although the plaintiff also references other “prior complaints of discrimination,” he does not
provide any further information beyond that (e.g., when he made the complaints, to whom they
were sent, or the subject matter of the complaints). See generally Pl.’s Opp’n.
Additionally, the deletion of the plaintiff’s e-mail account does not constitute a materially
adverse action. See Walker v. Wash. Metro. Area Transit Auth., 102 F. Supp. 2d 24, 29 (D.D.C.
2000) (holding that an “employment decision does not rise to the level of an actionable adverse
action . . . unless there is a tangible change in the duties or working conditions constituting a
material employment disadvantage”); Jones v. Billington, 12 F. Supp. 2d at 13 (noting that “not
everything that makes an employee unhappy is an actionable adverse action”) (citation and
quotation marks omitted). The court notes that it was the plaintiff’s school e-mail account that
was deleted, and that the plaintiff makes no allegation that the deletion of this e-mail account had
a materially adverse effect on him in any way. See Pl.’s Dep. at 152-53; see also generally Pl.’s
Mot. A failure to present evidence to support the elements of a claim is a basis for the granting
of summary judgment. Celotex, 477 U.S. at 322. Accordingly, because the plaintiff has not
satisfied the elements of a prima facie case of retaliation, the defendant is entitled to summary
judgment on that claim.
10
The plaintiff’s February 2005 complaint to the DCOHR and the EEOC cannot be a basis for the
plaintiff’s retaliation claim because all of the acts of retaliation complained of by the plaintiff
occurred prior to that date. See Pl.’s Opp’n to Def.’s Mot. for Summ J. at 15; Def.’s Mot., Ex. 6
(“Pl.’s Dep.”) at 47-53.
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IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion for summary
judgment. 11 An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 3rd day of August, 2010.
RICARDO M. URBINA
United States District Judge
11
The court notes that the defendant filed a motion to dismiss for failure to prosecute on October
13, 2009. See generally Def.’s Mot. to Dismiss. Because the court has adjudicated this case on
the merits, the motion is moot.
21