Gurara v. District of Columbia ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEVERLY GURARA, :
:
Plaintiff, : Civil Action No.: 10-1556 (RC)
:
v. : Re Document No.: 23
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff is a former employee of the District of Columbia. Her work record was not
ideal: by her own admission, she was repeatedly late, missed several days of work, and failed to
attend training sessions. One day, a co-worker noticed that her paper shredder was filled with
remnants of relevant work documents; when asked why this was so, Ms. Gurura lost her
composure, throwing a potted plant towards a co-worker and hurling invective which was heard
by all within earshot. She was so agitated that her employers called 911. Her employers took
progressive disciplinary measures, imposing two suspensions without pay for the missed days of
work and missed training and, after her outburst, terminated her employment. The plaintiff
brought suit against the District,1 claiming that the defendant’s acts were actually taken in
retaliation for a discrimination complaint that she had previously filed. But she has not
1
The complaint also names the District of Columbia’s Department of Transportation, which is non
sui juris and may not be sued. Plater v. D.C. Dep’t of Transp., 530 F. Supp. 2d 101, 102 n.1
(D.D.C. 2008). The court dismissed the Department of Transportation from this suit in a Minute
Order dated March 1, 2011.
submitted enough evidence to convince a reasonable jury of her claim. The court will therefore
grant the District’s motion for summary judgment.
II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Beverly Gurara is a former employee of the District of Columbia’s Department of
Transportation (“DDOT”), where she worked as a staff assistant. In August 2007, for reasons
not fully explained by the parties, she filed a charge with the EEOC alleging that she had been
subjected to a hostile work environment.2 Over the next two years, her employer took three
actions that are relevant to the plaintiff’s case.
A. The Plaintiff’s Nine-Day Suspension (April 2008)
In April 2008, the plaintiff was suspended without pay for nine days. Def.’s Mot. for
Summ. J. at 5 (“Def.’s Mot.”); Pl.’s Mot., Ex. 1 (“Pl.’s Aff.”) ¶ 7. The defendant alleges that
Ms. Gurara repeatedly failed to show up to work, claimed dubious medical excuses for her
absences, and failed to give timely notice of those absences. Def.’s Mot. at 5–6. The plaintiff
contends that she was entitled to take accumulated sick and annual leave, Pl.’s Aff. ¶ 7, though
the parties differ as to whether she properly obtained permission to use any such leave.
B. The Plaintiff’s 15-Day Suspension (December 2008)
In December 2008, the DDOT gave Gurara notice that it planned to suspend her for
fifteen days without pay due to her poor attendance, tardiness, and missed training.3 The
defendant cited several specific instances of absenteeism. First, Gurara failed to attend a “City
2
The plaintiff was placed on administrative leave in August 2007, but does not allege that this
plays any part in her claim. Rather, she focuses on three events that took place between April
2008 and June 2009. Pl.’s Opp’n at 1 (“Plaintiff agrees that the claims of retaliation are based on
three adverse employment actions: (1) a nine-day suspension in 2008; (2) a fifteen day suspension
in 2008; and (3) her termination from employment in 2009.”).
3
The plaintiff appealed this decision internally; it was affirmed three years later. See Def.’s Mot.
at 6, 11; id., Ex. 13.
2
Works training” on October 14–16, 2008, and a “snow training” that occurred in the same
month. Def.’s Mot. at 8–9. Additionally, she was late for work on October 21 and 22, and she
failed to show up at all on October 27 and October 28, 2008. Id. at 7, 10. Although the plaintiff
admits that the defendant is correct, she claims that others similarly failed to attend the City
Works training, and that she was unaware that her presence at the snow training was required.
Pl.’s Aff. ¶¶ 10, 11. She also claims that other employees were commonly late to work, and
those employees did not suffer similar consequences. Id.
C. The Plaintiff’s Termination (June 2009)
In June 2009, Gurara entered a colleague’s office to find her paper shredder on his desk.
Def.’s Mot. at 13. The colleague—Francesco Pacifico, the DDOT’s Chief of Street and Bridge
Maintenance—states that he was “trying to figure out” why her shredder was filled with ribbons
of certain work documents. Id. She denied shredding any original documents, instead
maintaining that she had only shredded photocopies. Id. When Pacifico showed her slivers of
paper with original ink and highlighting, she responded, “[t]his is bulls--t. You’re accusing me,”
and asserted that the shredded documents were merely photocopied duplicates. Id. Gurara
returned to her desk and, in the presence of other employees, said, “[i]f I wanted to shred f---ing
[work order] tickets, I could have did that a year ago when they put me on this bulls--t [sic].” Id.
at 14–15. She began to curse and talk to herself, repeating, “I can’t believe this s--t.” Id. She
picked up the phone, saying: “I’m sick. I’m going crazy,” and “you need to come over here right
now” before slamming down the telephone. Id. She tossed the shredded tickets in the air and
stated, “f--- that s--t.” Id. at 15. Gurara then swiped various items from her desk, seized a flower
pot, dumped its dirt onto the floor, and catapulted the pot across the room (it narrowly missed a
coworker before landing). Id. Her coworkers called Pacifico, who arrived to see Gurara with
her head cradled in her hands. Id. Pacifico called 911. Id. When the ambulance arrived, Gurara
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refused to speak with the medics and stormed out. Id. at 15. She was fired soon thereafter. Id.
The plaintiff does not contest this factual account except to insist that she never shredded any
original documents, only photocopies. Pl.’s Aff. ¶ 17.
The plaintiff brought suit in September 2010, alleging three claims: (1) retaliation under
Title VII of the Civil Rights Act of 1964, (2) retaliation under the D.C. Human Rights Act, and
(3) age discrimination under the Age Discrimination in Employment Act. The defendant seeks
summary judgment on all three counts. In her opposition, the plaintiff indicated that she no
longer wishes to pursue Counts II and III of her claim. See Pl.’s Opp’n at 1 n.1.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment may be granted when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). A fact is “material” if it is capable of affecting the substantive outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if
sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving
party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The moving party bears the initial
responsibility of identifying those portions of the record which demonstrate the absence of any
genuine issue of material fact. Id. at 323; FED. R. CIV. P. 56(c)(1)(A) (noting that the movant
may cite to “depositions, documents, electronically stored information, affidavits or declarations,
. . . admissions, interrogatory answers, or other materials”). In response, the non-moving party
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must similarly designate specific facts in the record that reveal a genuine dispute that is suitable
for trial. Celotex, 477 U.S. at 324.
On a motion for summary judgment, the court must “eschew making credibility
determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007), and all underlying facts and inferences must be analyzed in the light most favorable to the
non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered
without any evidentiary support do not establish a genuine issue for trial. Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999).
B. Legal Standard for a Title VII Retaliation Claim
Title VII prohibits an employer from retaliating against any employee who files a
discrimination charge against his or her employer. 42 U.S.C. § 2000e–16(a); Ginger v. District
of Columbia, 527 F.3d 1340, 1346 (D.C. Cir. 2008). An act of retaliation gives rise to liability if
it is of sufficient significance that it “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe R.R. v. White, 548 U.S. 53, 68
(2006). Where, as here, the employer has proffered a non-retaliatory explanation for a materially
adverse employment action, the “central question is whether the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted reason was not the actual
reason and that the employer intentionally retaliated against the employee.” McGrath v. Clinton,
666 F.3d 1377, 1383 (D.C. Cir. 2012) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008)) (alterations omitted). The court is obliged to weigh the entirety of the
evidence and to determine whether the plaintiff’s evidence creates a material dispute of fact on
this question. Brady, 520 F.3d at 495. And a plaintiff has “multiple ways” to cast doubt on the
employer’s asserted reason for acting: for instance, the plaintiff may draw comparisons to others
similarly situated, submit evidence suggesting that the employer has lied about the underlying
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facts, or suggest the employer failed to follow established protocol or procedure. See id. But a
plaintiff cannot succeed merely by demonstrating that the employer’s asserted reason was faulty
or erroneous; to prevail, the plaintiff “must show both that the reason was false, and that
[retaliation] was the real reason.” Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007).
C. The Plaintiff’s Nine-Day Suspension Was Not Unlawful Retaliation
The plaintiff alleges that her nine-day suspension was imposed as a form of retaliation for
her filing of an EEOC charge the previous year. Pl.’s Opp’n at 1–2. The defendant counters that
the plaintiff was suspended because she failed to show up to work. Def.’s Mot. at 5–6. The
plaintiff was placed on a period of administrative leave that was due to end on February 4, 2008.
Id. at 6. She was initially expected to return to work that day. Id. But, based on a doctor’s note,
the plaintiff claimed that she could not return until February 19, 2008. Id. On that date, the
plaintiff left a voicemail with a supervisor at some point after 2:00 o’clock in the afternoon,
indicating that she would not be showing up to work. Id. The plaintiff left a similar voicemail
the following day (February 20, 2008), again informing the supervisor that she would not be
attending work that day. Id. On February 26, the plaintiff faxed a “questionable medical
document” (dated February 12, 2008) to another employee, which indicated that she was under a
doctor’s care and could not attend work for medical reasons. Id.
Absenteeism is, without doubt, a legitimate, non-retaliatory reason for taking action
against an employee. See McGill v. Munoz, 203 F.3d 843, 846 (D.C. Cir. 2000); Short v.
Chertoff, 555 F. Supp. 2d 166, 176–77 (D.D.C. 2008) (noting that the plaintiff’s absence without
leave was valid grounds for suspension). And the defendant argues that the plaintiff did not
follow the relevant procedures before taking medical leave, nor did she provide adequate
evidence that medical leave was warranted. Because the defendant has offered a valid
justification for Gurura’s suspension, the only question is whether there is enough evidence for a
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reasonable juror to determine that this justification is pretextual. Geleta v. Gray, 645 F.3d 408,
411 (D.C. Cir. 2011).
The plaintiff suggests that the defendant’s stated reason for acting is false. The plaintiff
claims that she had valid medical reasons for her absences, and that she had 350 hours of annual
leave and 84 hours of sick leave at her disposal. Pl.’s Opp’n at 4. But this argument misses the
point. Regardless of the plaintiff’s purported medical condition or her available leave, the
plaintiff does not explain why she failed to properly request such leave. A workplace Collective
Bargaining Agreement required the plaintiff to give advance notice of any absences, either (1)
when the employee becomes aware of the need for leave or (2) at the latest, two hours before the
scheduled start of her tour of duty. Def.’s Mot. at 6. Based on the plaintiff’s own paperwork, the
plaintiff was under a doctor’s care beginning no later than February 12, 2008. Pl.’s Opp’n at 4.
Accordingly, there was no reason she could not request leave well in advance of her absences on
February 19 and 20. But she did not do so. Instead, the plaintiff did not inform her supervisors
of her necessity for leave until hours after her scheduled start time. Thus, even if the plaintiff
had leave time available, there is no evidence to indicate that she properly obtained permission to
use that leave. Accordingly, the plaintiff’s arguments do not cast doubt on the defendant’s
reason for acting.4 The court therefore concludes that no reasonable jury could find that the
4
Although the plaintiff does not press this point, the proximity in time between the EEOC charge
and the adverse employment action may give rise to an inference of retaliation depending on the
facts of the case. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (“For purposes of
establishing a prima facie case of retaliation, temporal proximity can indeed support an inference
of causation, but only where the two events are very close in time.”). Here, the suspension was
proposed in March 2008, six months after the EEOC charge was filed. Cf. Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273–74 (2001) (citing cases finding that a temporal proximity of three
months and four months is insufficient to demonstrate causal connection). But regardless,
temporal proximity alone cannot defeat summary judgment when confronted with the employer’s
legitimate, non-retaliatory reason for acting. See Woodruff v. Peters, 482 F.3d 521, 530 (D.C.
Cir. 2007) (concluding in an ADA retaliation claim that “positive evidence beyond mere
proximity is required to defeat the presumption that the [defendant’s] proffered explanations are
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District’s stated reasons for suspending the plaintiff are merely a guise to mask unlawful
retaliation.
D. The Plaintiff’s 15-Day Suspension Was Not Unlawful Retaliation
The plaintiff similarly claims that her 15-day suspension in February 2009 was a form of
unlawful retaliation. Pl.’s Opp’n at 2–3. The defendant claims that the plaintiff was suspended
because she failed to attend two training programs, arrived at work late, and missed two days of
work entirely. Def.’s Mot. at 7–10. Specifically, the defendant argues that the plaintiff failed to
attend “snow training” on October 11, 2008; that she failed to attend the “City Works” training
program from October 14 to October 16, 2008; that she was thirty minutes late to work on
October 20 and October 22, 2008; and that she did not show up to work on October 27 and
October 28, 2008. The defendants’ offered reasons are valid under Title VII: an employer may
punish its employees for failing to show up at work functions, showing up late, or not showing
up at all. McGill, 203 F.3d at 846; Singleton v. Potter, 402 F. Supp. 2d 12, 31 (D.D.C. 2005)
(noting that “attendance issues” are legitimate grounds for action). Thus, it falls on the plaintiff
to show that this justification is pretextual.
The plaintiff concedes that she did not attend the City Works training in the fall of 2008.
Pl.’s Opp’n at 2; see Def.’s Mot., Ex. 13 at 184 (“Q. Did you attend the [City Works] training?
A. No.”). The plaintiff nevertheless maintains that other employees failed to attend the City
Works training without suffering any reprisal and that she attended the training at some later
point in time. Pl.’s Opp’n at 2. It is true that the plaintiff may prove retaliation by introducing
evidence suggesting that other employees who failed to attend the training received more lenient
genuine”); Hutchinson v. Holder, 815 F. Supp. 2d 303, 318 (D.D.C. 2011) (reaching the same
conclusion in a Title VII case).
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treatment. See Brady, 520 F.3d at 495. But the plaintiff does not specify which employees
failed to attend the training, whether they were similarly situated, or what consequences they
may have suffered. Pl.’s Opp’n, Ex. 1 ¶ 10 (“To my knowledge, no other employee received
adverse action for failing to attend the training as initially scheduled.”). In addition, the plaintiff
was not suspended for just missing this training; she committed a host of other infractions as
well. The plaintiff does not indicate whether any other employees also committed similar
infractions. Thus, the plaintiff fails to demonstrate that these purported comparators were
similarly situated to her. See Royall v. Nat’l Ass’n of Letter Carriers, 548 F.3d 137, 145 (D.C.
Cir. 2008) (indicating that the defendant’s disparate treatment of similarly situated employees
may establish pretext, but only if the plaintiff shows that “all of the relevant aspects of [her]
employment were nearly identical”) (quotation marks and alterations omitted). Therefore, the
plaintiff’s argument does not create a triable issue of fact. See Greene v. Dalton, 164 F.3d 671,
675 (D.C. Cir. 1999) (noting that conclusory, unsubstantiated allegations are insufficient to
defeat summary judgment); Mason v. Geithner, 811 F. Supp. 2d 128, 181 (D.D.C. 2011) (noting
that a “cursory allegation may suffice in a complaint, but it is patently insufficient to create a
genuine dispute necessitating trial”).
Second, the plaintiff admits that she did not attend the snow training in October 2008, yet
she maintains that she was unaware that her attendance was required. Pl.’s Opp’n, Ex. 1 ¶ 11.
But the defendant has submitted the plaintiff’s testimony to the contrary. See Def.’s Mot., Ex. 13
at 187 (“Q. Were you aware that you were to attend a snow training on October 11th? A. Yes.
Q. So why didn’t you attend the training? A. Well, I don’t know.”).5 In addition, she states that
5
To the extent that her prior statements consist of sworn testimony, the plaintiff cannot create a
question of fact by submitting an affidavit that contradicts her previous statements. Galvin v. Eli
Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (explaining that the “sham affidavit” rule
“precludes a party from creating an issue of material fact by contradicting prior sworn testimony
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she did not attend the snow training because she lacked a means of transportation. Pl.’s Opp’n,
Ex. 1 ¶ 11. But the plaintiff’s allegations, even if true, would not excuse her absence. The
defendant submits evidence suggesting that employees were responsible for getting to training on
their own, or requesting a ride if needed. Def.’s Mot., Ex. 13 at 101–02. The plaintiff puts forth
no evidence to the contrary nor evidence that she attempted to arrange a ride to the training. In
sum, the plaintiff’s second argument does not create a genuine dispute of material fact.
Third, the plaintiff argues that she requested approval for her absence on October 27 and
October 28, 2008 by calling in on the day of her absences. Pl.’s Opp’n, Ex. 1 ¶ 12 (“With
respect to the AWOL, I attempted to call in to advise that I would not be in for work. I was
unable to reach a supervisor and left a voicemail message.”). But, in order to constitute an
excused absence, the plaintiff needed to obtain approval of her absence in advance. She did not
do so. Although she may have attempted to notify her supervisor of her absence, she did not
obtain approval for such leave in advance. Def.’s Mot., Ex. 13 at 34–35.
Finally, the plaintiff argues that her tardiness should be excused because “it was common
in my office for other employees to miss work or come to work late. To my knowledge, no
adverse action was taken against them and I was singled out.” Id. ¶ 13. Again, this allegation
lacks sufficient detail and evidentiary support to warrant trial. Greene v. Dalton, 164 F.3d at
675; Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 45 n.6 (D.D.C. 2008) (finding that a
plaintiff’s description of work procedures consisted of mere allegations rather than genuine facts
because the descriptions were unsupported by any citation to evidence in the record). As set
forth above, the plaintiff was suspended for a number of infractions and she has failed to identify
any similarly situated co-workers who were treated differently despite committing a number of
unless the shifting party can offer persuasive reasons for believing the supposed correction is
more accurate than the prior testimony”).
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infractions (rather than the occasional late arrival to work). Accordingly, the plaintiff’s claim
that her 15-day suspension was a form of unlawful retaliation cannot proceed to trial.
E. The Plaintiff’s Termination Was Not Unlawful Retaliation
Finally, the plaintiff alleges that her termination was retaliatory. The defendant argues
that the plaintiff was fired for insubordination, malfeasance, and the use of abusive or offensive
language. Def.’s Mot. at 15–16. It goes without saying that these reasons are a legitimate basis
for disciplinary action. See Weigert v. Georgetown Univ., 120 F. Supp. 2d 1, 5 (D.D.C. 2000)
(concluding that the plaintiff’s “insubordination,” as well as her “rude and abrasive behavior,”
were grounds for her termination). The plaintiff’s sole response is to argue that the documents
she shredded were not originals, but instead were photocopies. Pl.’s Opp’n, Ex. 1 ¶ 16. But
even if the plaintiff is correct, the plaintiff has not demonstrated that Mr. Pacifico did not
honestly believe that, based on the original ink and highlighted areas of the shreds, someone had
shredded the originals. And if the employer honestly believes in the correctness of the
conclusions that form the basis for its actions, those acts will not constitute unlawful retaliation.
See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Once the employer
has articulated a non-discriminatory reason for its action . . . . the issue is not the correctness or
desirability of the reasons offered but whether the employer honestly believes in the reasons it
offers.” (citing McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.
1992))) (alterations omitted); Mentzer v. Lanier, 677 F. Supp. 2d 242, 260 (D.D.C. 2010) (same).
Regardless, the plaintiff does not contest that she lost her composure, used vulgar language, and
hurled a flower pot towards her co-workers. Based on these facts, no reasonable juror could
conclude that the plaintiff’s termination was pretextual.
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IV. CONCLUSION
Summary judgment “serves as the ultimate screen to weed out truly insubstantial lawsuits
prior to trial.” Crawford-El v. Britton, 523 U.S. 574, 600 (1998). Here, the plaintiff alleges that
every disciplinary action taken after her EEOC charge was retaliatory. But Title VII’s retaliation
provisions are “intended to protect the remedial scheme,” not to “create a permanent discipline-
free zone for complainants.” See Woodruff v. Peters, 482 F.3d 521, 531 (D.C. Cir. 2007). And
the defendant should not suffer through a trial absent any evidence for the jury to rely on.
Accordingly, the defendant’s motion is granted. An order consistent with this memorandum
opinion is separately issued this 8th day of August, 2012.
RUDOLPH CONTRERAS
United States District Judge
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