McNair v. District of Columbia Government ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
SAUNDRA M. MCNAIR, )
)
Plaintiff, )
)
v. ) Case No. 15-cv-00729 (APM)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff, a former Administrative Law Judge for Defendant District of Columbia, was
terminated from her job in 2013. According to Defendant, the termination occurred because
Plaintiff missed 90 minutes of work daily for over a year after Defendant denied her request to
keep an alternate work schedule that would have allowed her to arrive and leave 90 minutes early.
Following her firing, Plaintiff brought a litany of claims against Defendant. Many of her
claims did not survive the motion-to-dismiss stage, but seven proceeded to discovery and now are
the subject of Defendant’s motion for summary judgment. Those claims include the failure to
allow her to work an alternate work schedule in violation of (1) the Americans with Disabilities
Act (ADA) for failure to reasonably accommodate, and in violation of (2) Title VII and (3) the
District of Columbia Human Rights Act (DCHRA) for race discrimination. Plaintiff also claims
that Defendant violated (4) the ADA and (5) the DCHRA when it retaliated against her for making
a reasonable accommodation request and discriminated against her for her disability by firing her.
Plaintiff further asserts that her termination violated (6) the District of Columbia Whistleblower
Protection Act, because she made two purported protected disclosures that led to her termination.
And, finally, Plaintiff avers that Defendant compensated her below the minimum wage in violation
of (7) the Fair Labor Standards Act.
For the reasons explained below, the court grants summary judgment in favor of Defendant
as to all of Plaintiff’s claims, except for the denial of reasonable accommodation under the ADA.
As to that claim, the court finds that Plaintiff has made out a prima facie case and may present her
case to a jury.
II. BACKGROUND
A. Factual Background 1
The District of Columbia Department of Employment Services hired Plaintiff as an
Administrative Law Judge in March 2009. See Def.’s Mot. for Summ. J., ECF No. 72 [hereinafter
Def.’s Mot.]; Def.’s Stmt. of Material Facts in Support of Def.’s Mot. for Summ. J., ECF No. 72
[hereinafter Def.’s Stmt. of Facts], ¶ 1. In February 2010, Plaintiff’s supervisor notified her that
her “tour of duty” would be 8:00 a.m. to 4:30 p.m. Id. ¶ 2. Plaintiff submitted a request for
accommodation on April 16, 2010, specifically, to work from 7:00 a.m. to 3:30 p.m. and to
telecommute as needed, see id. ¶ 3, due to conditions such as lupus, “failed back surgery
syndrome,” and a lumbar disc disorder, see Def.’s Mot., Exs. 2, 3, ECF Nos. 72-2, 72-3. Defendant
sought additional documentation from Plaintiff less than a week later, but Plaintiff never submitted
the requested information. See Def.’s Stmt. of Facts ¶ 4. Ultimately, Defendant never resolved
Plaintiff’s request, because soon after she made it, Plaintiff was away from the office from July
2010 to April 2012. See id. ¶ 5.
1
In opposing Defendant’s Motion for Summary Judgment, Plaintiff failed to controvert any fact asserted in
Defendant’s supporting statement of undisputed facts. See Def.’s Mot. for Summ. J., ECF No. 72, Def.’s Stmt. of
Material Facts in Support of Def.’s Mot. for Summ. J., ECF No. 72; Pl.’s Response about Mot., ECF No. 75, at 5–6
(containing a two-paragraph “Itemization of Undisputed Facts” that does not contest any facts asserted by Defendant).
The court therefore treats as true the facts asserted in Defendant’s statement. See Fed. R. Civ. P. 56(e); LCvR 7(h)(1).
2
Upon her return, on April 30, 2012, Plaintiff submitted a request to participate in
Defendant’s Alternate Work Schedule program, which would allow her to work from 7:00 a.m. to
3:30 p.m. See id. ¶ 9. Defendant denied the request in November 2012. Id. Despite the denial,
Plaintiff continued to work each day from 7:00 a.m. to 3:30 p.m. Id. ¶ 10.
In November 2012, Plaintiff’s supervisor, Chief Judge George Crawford, notified her that
her “tour of duty” had changed to 8:30 a.m. to 5:00 p.m. See id. ¶ 11. Crawford also warned
Plaintiff that she would be treated as Absent Without Leave (“AWOL”) if she did not comply with
those work hours. See id. Notwithstanding the warning, Plaintiff continued to work from
7:00 a.m. to 3:30 p.m. See id. ¶ 10.
On December 4, 2012, Plaintiff left a letter from her physician, Dr. John Byrne, on Chief
Judge Crawford’s chair. See id. ¶ 12. Dr. Byrne noted that Plaintiff was “under his care for a
disability of her knees” and recommended that her employer allow Plaintiff to work from 7:00
a.m. to 3:30 p.m. to avoid rush hour traffic. See id.; see also Def.’s Mot.; Ex. 10, ECF No. 72-10
[hereinafter Physician Letter]. The record does not indicate what action, if any, Chief Judge
Crawford took with respect to this request for an alternate work schedule. Chief Judge Crawford
stopped working at the Department of Employment Services shortly after December 4, 2012. See
Def.’s Stmt. of Facts ¶ 12.
Nine months later, on August 14, 2013, Defendant issued Plaintiff an Advance Written
Notice of Proposed Removal, which proposed to terminate Plaintiff for cause based on her having
accrued 194.5 AWOL hours and for insubordination. See id. ¶ 14; Def.’s Mot.; Ex. 6, ECF No.
72-6. Defendant terminated Plaintiff on October 18, 2013, for the accumulation of AWOL hours
and insubordination. See Def.’s Stmt. of Facts ¶ 15; Def.’s Mot.; Ex. 7, ECF No. 72-7, at 3.
3
Throughout her employment from November 2012 to July 2013—the period in which
Defendant counted AWOL hours—Plaintiff earned either $40.17 per hour or $41.37 per hour.
See Def.’s Stmt. of Facts ¶¶ 17–18; Def.’s Mot; Ex. 8, ECF No. 72-8, ¶¶ 2–3.
B. Procedural Background
Plaintiff filed this action on May 13, 2015. See Compl., ECF No. 1. On January 1, 2016,
she filed an Amended Complaint, containing a myriad of claims against the District of Columbia,
the Department of Employment Services, and three individuals employed by the District of
Columbia. See Am. Comp., ECF No. 12. In a series of opinions, the court dismissed many claims
and parties from the action. See Mem. Op., ECF No. 35; see also Mem. Op., ECF No. 45; see also
Mem. Op., ECF No. 69. What remains are the following claims against the sole remaining
Defendant, the District of Columbia: (1) failure to accommodate under the Americans with
Disabilities Act (“ADA”); (2) retaliation and disability discrimination under the ADA and the
District of Columbia Human Rights Act (“DCHRA”); (3) race discrimination under Title VII and
the DCHRA; (4) failure to compensate under the Fair Labor Standards Act; and (7) retaliation
under the District of Columbia Whistleblower Protection Act.
Defendant moved for summary judgment on all remaining claims on July 13, 2018.
See Def.’s Mot. 2 Plaintiff filed an Opposition on August 27, 2018. See Pl.’s Response about Mot.,
ECF No. 75 [hereinafter Pl.’s Resp.]. Defendant replied on October 3, 2018. See Def.’s Reply,
ECF No. 76.
III. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
2
Throughout this opinion, citations to Defendant’s Motion are to the pagination of the motion and not to the ECF
numbering.
4
56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the
substantive outcome of the litigation” and “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F. Supp. 3d 18,
28 (D.D.C. 2015) (citations omitted).
In assessing a motion for summary judgment, the “court considers all relevant evidence
presented by [the parties].” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir.
2008). The court looks at the facts in the light most favorable to the nonmoving party and draws
all justifiable inferences in that party’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). If the court determines “no reasonable jury could reach a verdict in her favor,” then
summary judgment is appropriate. Wheeler v. Georgetown University Hosp., 812 F.3d 1109, 1113
(D.C. Cir. 2016). Courts are “not to make credibility determinations or weigh the
evidence.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).
IV. DISCUSSION
A. Failure to Accommodate under the ADA
Before addressing Defendant’s arguments, the court notes that Plaintiff made two, possibly
three, requests for reasonable accommodation, one of which does not present a cognizable claim.
Plaintiff first asked for accommodation in April 2010, seeking both an alternate work schedule
(7:00 a.m. to 3:30 p.m.) and occasionally to work from home. Def.’s Stmt. of Facts ¶ 3. Defendant
never formally denied this first request, however, because Plaintiff failed to respond to Defendant’s
follow up for additional information and soon thereafter began a nearly two-year-long leave of
absence. See id. ¶¶ 4–5. As to this first accommodation request, Plaintiff can state no claim.
Plaintiff made a second request for accommodation after she returned from her leave.
See Def.’s Stmt. of Facts ¶ 9. The record as to this request is muddled, however. On April 30,
5
2012, Plaintiff asked to work a “Flexible Work Schedule,” which her supervisor recommended for
approval. See Def.’s Mot., Ex. 5, ECF No. 72-5. 3 But Defendant apparently took no final action
as to this request until November 2012. Kameron Kima-Cherry, an employee in Defendant’s
Human Resources Department, disapproved the alternate work schedule on November 14, 2012,
see id., and Plaintiff’s supervisor, Chief Judge Crawford, instructed Plaintiff on November 19,
2012, that she was required to work the “standard tour of duty hours” of 8:30 a.m. to 5:00 p.m.,
see Def.’s Mot., Ex. 11, ECF No. 72-11. The record contains neither a reason for the long delay
in responding to Plaintiff’s request nor a reason for rejecting it. Then, according to Plaintiff, on
or about December 4, 2012, she left a letter from her doctor on the chair of Chief Judge Crawford,
which asked that she be able to work an alternate work schedule—a possible third request. See
Def.’s Stmt. of Facts ¶ 12. The record is silent as to what, if any, action Defendant took following
receipt of the doctor’s letter. The court evaluates these two additional requests against Defendant’s
arguments.
To make out a prima facie case of discrimination based on a failure to accommodate, a
“plaintiff must demonstrate by a preponderance of evidence: (1) that she was an individual who
had a disability within the meaning of the statute; (2) that the employer had notice of her disability;
(3) that with reasonable accommodation she could perform the essential functions of her job; and
(4) that the employer refused to make such accommodations.” Etheridge v. FedChoice Federal
Credit Union, 789 F. Supp. 2d 27, 35 (D.D.C. 2011) (citation omitted). Defendant argues that
3
Defendant does not assert that Plaintiff’s April 2012 request did not provide adequate notice of an accommodation
request. See Def.’s Mot. at 11–12 (arguing that the 2012 AWS request demonstrated Plaintiff’s unwillingness to
participate in interactive process). But even if Defendant did make such an argument, viewing the evidence in the
light most favorable to Plaintiff, a reasonable jury could find that the April 2012 request put Defendant on notice that
Plaintiff was seeking accommodation for disability, thus triggering the interactive process. See Crandall v. Paralyzed
Veterans of America, 146 F.3d 894, 898 (D.C. Cir. 1998); Floyd v. Lee, 85 F. Supp. 3d 482, 506 (D.D.C. 2015).
6
Plaintiff fails to establish a prima facie case for two reasons. See Def.’s Mot. at 6. 4 First, it
contends that Plaintiff does not meet the third element because “she cannot show a causal
connection between the accommodation sought and her limitation.” Id. Second, Defendant
maintains that Plaintiff cannot meet the fourth element because “she cannot show that [Defendant]
failed to engage in the interactive process.” Id. The court rejects both arguments.
1. Causal Connection between the Accommodation Sought and
Plaintiff’s Limitation
Defendant’s first contention—that Plaintiff cannot show a causal connection between the
accommodation sought and her limitation—fails because Plaintiff’s physician letter, dated
November 30, 2012, is to the contrary. “[W]hen an employee seeks a workplace accommodation,
the accommodation must be related to the limitation that rendered the person disabled.” Adams v.
Rice, 531 F.3d 936, 944 (D.C. Cir. 2008) (internal quotation marks and citation omitted).
According to her physician, Plaintiff had a “disability of her knees” and “[s]he needs
accommodation so that she can avoid the rush hour traffic . . . which would significantly be
detrimental to her recovery because of the motion in her knee during driving and potential stop
and go situations in her car.” Physician Letter. The physician’s letter creates a genuine dispute of
material fact as to whether there is a causal connection between Plaintiff’s request for alternative
work hours and the limitation that rendered her disabled.
2. Interactive Process
Defendant’s second contention—that Plaintiff failed to participate in the required
interactive process—also fails. The interactive process is “a flexible give-and-take between
employer and employee so that together they can determine what accommodation would enable
4
Defendant argues only that Plaintiff cannot make out a prima facie case for failure to accommodate. See Def.’s Mot.
at 6–10. Defendant does not argue that it denied Plaintiff’s accommodation request for a reason unrelated to her
claimed disability or some other valid reason.
7
the employee to continue working.” Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (internal
quotation marks and citations omitted). Courts “should attempt to isolate the cause of the
breakdown and then assign responsibility.” Id.
Defendant’s argument focuses primarily on Plaintiff’s failure to supply the follow-up
information requested by her employer on April 22, 2010, after Plaintiff submitted her first request.
See Def.’s Mot. at 10–15. But that is not the relevant inquiry. The pertinent question is which
party, if any, was responsible for the ineffectiveness of the interactive process following Plaintiff’s
second and third demands. There is no evidence that anyone requested additional information
from Plaintiff after she made her second request for a modified work schedule in April 2012.
Indeed, as discussed, Defendant offers no explanation for why, even though Plaintiff’s supervisor
approved her request for an alternate work schedule the day she submitted it, see Def.’s Mot., Ex.
5, the agency did not formally deny it until six months later, on November 14, 2012, see id.
Likewise, the record is silent as to what steps, if any, Defendant took following its receipt of the
letter from Plaintiff’s physician in December 2012, which explicitly justified Plaintiff’s need for
an alternate work schedule. Defendant complains that Plaintiff did not provide the letter to Human
Resources, see Def.’s Mot. at 15, but otherwise does not defend what appears to be inaction on its
part. Based on these disputed facts, a reasonable juror could find that Defendant, not Plaintiff,
failed to engage in the interactive process. Accordingly, Plaintiff’s claim for failure to
accommodate under the ADA survives summary judgment.
B. Race Discrimination under Title VII and DCHRA
Next, Plaintiff alleges that Defendant denied her an alternate work schedule based on her
race. To prove a Title VII and DCHRA race discrimination claim, a plaintiff must show that she
suffered an adverse employment action because of her race. See Baloch v. Kempthorne, 550 F.3d
8
1191, 1196 (D.C. Cir. 2008); see also Vatel v. Alliance of Automobile Manufacturers, 627 F.3d
1245, 1246 (D.C. Cir. 2011). An adverse employment action is a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also Taylor v. Small, 350 F.3d 1286, 1293
(D.C. Cir. 2003). To establish an adverse action, a plaintiff must show that she “experience[d]
materially adverse consequences affecting the terms, conditions, or privileges of employment . . .
such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002).
Courts in this Circuit consistently have held that denial of an alternate work schedule, by
itself, is not an adverse action. See Hunter v. District of Columbia, 905 F. Supp. 2d 364, 373
(D.D.C. 2012); see also Williams v. Donovan, 219 F. Supp. 3d 167, 175–76 (D.D.C. 2016). This
case is no different. Plaintiff has submitted no evidence that Defendant’s denial of her request to
work from 7:30 a.m. to 3:30 p.m. caused a significant change in employment status or a materially
adverse consequence. See Pl.’s Resp. at 14–15. 5 The mere denial of her request for an alternate
work schedule, therefore, cannot sustain her race discrimination claims.
Plaintiff also contends that Defendant’s denial of her request to occasionally work from
home was an adverse action. See id. at 5. But Defendant never denied Plaintiff’s request to work
from home. Instead, Plaintiff made the request, Defendant asked for more documentation, and
Plaintiff was then absent from work for nearly two years. See Def.’s Stmt. of Facts ¶¶ 3–5.
Nonetheless, even if Defendant had denied the request, it would not constitute an adverse action.
5
At the Motion to Dismiss stage, the court allowed Plaintiff to proceed on her Title VII race discrimination claim for
“other adverse actions, such as failure to promote and termination.” Memorandum Opinion, ECF No. 35, at 5.
Plaintiff did not raise any other adverse actions—such as failure to promote or termination—at the Motion for
Summary Judgment stage, however, so the court does not address those issues here.
9
Much like the denial of an alternative work schedule, the denial of a request to work from home,
in and of itself, is not an adverse action. See Walker v. McCarthy, 170 F. Supp. 3d 94, 106 (D.D.C.
2016) (citing cases); see also Ng v. Lahood, 952 F. Supp. 2d 85, 96 (D.D.C. 2013). Plaintiff has
offered no evidence that would warrant a finding of adversity here.
For these reasons, Defendant’s Motion for Summary Judgment on the Title VII and
DCHRA race discrimination claims is granted.
C. Disability Discrimination and Retaliation under the ADA and DCHRA
Plaintiff’s next set of claims are that Defendant violated the DCHRA by terminating her
because of her disability, see Am. Compl., ECF No. 12, ¶¶ 65–69, and violated the ADA and the
DCHRA by terminating her in retaliation for making a reasonable accommodation request, see id.
¶¶ 83–85. ADA and DCHRA retaliation and discrimination claims are analyzed under the
McDonnell Douglas three-step framework. See Smith v. District of Columbia, 430 F.3d 450, 455
(D.C. Cir. 2005) (stating that McDonnell Douglas framework applies in ADA retaliation cases);
see also Ranowsky v. National Railroad Passenger Corp., 244 F. Supp. 3d 138, 143 (D.D.C. 2017)
(stating that DCHRA discrimination and retaliation claims analyzed under McDonnell Douglas);
see also Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C. Cir. 2011). However, if an
“employer offers a non-discriminatory or non-retaliatory reason for the challenged action, the
burden-shifting framework disappears and the court’s inquiry narrows . . . [T]he only relevant
inquiry is whether the employee has put forth sufficient evidence for a reasonable jury to conclude
that the employer’s proffered explanation is a mere pretext and the employer intentionally
discriminated or retaliated against the employee.” Ranowsky, 244 F. Supp. 3d at 143–44; see also
Vatel, 430 F.3d at 306.
10
Here, Defendant asserts a non-discriminatory and non-retaliatory justification for
Plaintiff’s termination: she had accumulated 194.5 hours of AWOL and she was deemed to be
insubordinate. See Def.’s Stmt. of Facts ¶¶ 14–15. Plaintiff counters this explanation by arguing
that “other[s] were treated more favorably and allowed to work modified work schedules and
permitted to work from home.” Pl.’s Resp. at 12. But that argument fails for two reasons. First,
for the retaliation claim, the pertinent question is not whether others were treated more favorably
with respect to the denied accommodation request, but instead whether Defendant did not
terminate others for engaging in comparable misconduct. See Wheeler v. Georgetown Univ. Hosp.,
812 F.3d 1109, 1115–16 (D.C. Cir. 2016) (“For a plaintiff to prove that she is similarly situated to
another employee, she must demonstrate that she and the alleged similarly-situated employee
‘were charged with offenses of comparable seriousness,’ and ‘that all of the relevant aspects of
[her] employment situation were nearly identical to those of the other employee.’”) (citation
omitted). Second, Plaintiff offers no evidence whatsoever to support her contention of disparate
treatment based on disability. She points to no specific comparator that would allow the court to
evaluate whether Defendant treated her differently than other similarly situated employees, or to
any other pertinent evidence. See id.
Defendant’s Motion for Summary Judgment, therefore, is granted as to Plaintiff’s disability
discrimination claim under the DCHRA and Plaintiff’s retaliation claim under the ADA and the
DCHRA.
D. Unlawful Compensation under the Fair Labor Standards Act
The court turns next to Plaintiff’s claim under the Fair Labor Standards Act (“FLSA”).
See Am. Compl., ECF No. 12, ¶¶ 5, 75. Plaintiff contends that Defendant did not compensate her
11
about ten hours each week because it did not pay her for her AWOL hours. See Pl.’s Resp. at 14–
15. This accusation, even if true, does not give rise to an FLSA minimum-wage claim.
A cause of action under the FLSA will not lie “so long as the total weekly wage paid by an
employer meets the minimum weekly requirements of the statute, such minimum weekly
requirement being equal to the number of hours actually worked that week multiplied by the
minimum hourly statutory requirement.” Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d
353, 357 (8th Cir. 1986) (citation omitted); see also Dove v. Coupe, 759 F.2d 167, 172 (D.C. Cir.
1985). The minimum wage is $7.25 per hour. See 29 U.S.C. § 206(a)(1)(C) (2016). Plaintiff
claims she worked forty hours per week. Pl.’s Resp. at 14–15. So, to satisfy the FLSA, Defendant
would need to have paid Plaintiff at least $290.00 weekly, which is $7.25 per hour multiplied by
40 hours per week.
Plaintiff’s weekly income well exceeded the minimum requirement. Defendant paid
Plaintiff at either $40.17 per hour or $41.37 per hour throughout the relevant period. See Def.’s
Stmt. of Facts ¶ 17–18; Def.’s Mot; Ex. 8, ECF No. 72-8. The first wage, multiplied by thirty
hours, resulted in a weekly income of $1,205.10. The second wage, multiplied by thirty hours,
resulted in a weekly income of $1,241.10. Both wages satisfied the FLSA’s minimum wage
requirement. Plaintiff’s FLSA claim, therefore, cannot survive summary judgment.
E. Retaliation under the D.C. Whistleblower Protection Act
Plaintiff’s final claim is that Defendant violated the D.C. Whistleblower Protection Act
(“DCWPA”) by terminating her for making two protected disclosures. DCWPA claims are
analyzed under a burden-shifting framework. See Coleman v. District of Columbia, 794 F.3d 49,
54 (D.C. Cir. 2015). “To make out a prima facie claim of retaliation under the Whistleblower Act,
the plaintiff must show by a preponderance of the evidence that (i) she made a statutorily protected
12
disclosure, and (ii) the disclosure was a ‘contributing factor’ behind (iii) an adverse personnel
action taken by her employer.” Id. A protected disclosure is a disclosure that the whistleblower
“reasonably believes” would show evidence of gross mismanagement; gross misuse or waste of
public resources or funds; abuse of public authority; violation of law; or a substantial and specific
danger to public health and safety. Id. (citing D.C. Code § 1–615.52(a)(6)). A contributing factor
is “any factor which, alone or in connection with other factors, tends to affect in any way the
outcome of the [employment] decision.” D.C. Code § 1–615.52(a)(2). Plaintiff’s termination
constitutes an adverse action. See D.C. Code § 1–615.52(a)(5)(A).
Plaintiff avers that she made two protected disclosures. First, in 2009, she alerted the
D.C. City Council about alleged theft from a workers’ compensation fund. See Pl.’s Resp. at 16;
see also Def.’s Mot.; Ex. 4, ECF No. 72-4, at 139 (in deposition, Plaintiff saying she made
disclosure to Council “sometime in 2009”). Second, in about June 2013, she notified her
supervisors that a colleague was falsifying timesheets. See id. at 17; see also Notice, ECF No. 78,
Plaintiff’s Deposition, ECF No. 78-1, at 130. Plaintiff fails to make out a prima facie claim as to
either disclosure.
Plaintiff has not shown by a preponderance of the evidence that her disclosure to City
Council members of theft from a workers’ compensation fund was a contributing factor behind
her termination. Plaintiff made this disclosure in 2009. See Pl.’s Resp. at 16; see also Def.’s Mot.;
Ex. 4, ECF No. 72-4, at 139. Defendant terminated her in the fall of 2013. See Def.’s Stmt. of
Facts ¶¶ 14–15. Four years is far too long for a reasonable jury to believe this disclosure was a
contributing factor to Plaintiff’s termination. See Booth v. District of Columbia, 701 F. Supp. 2d
73, 81 (D.D.C. 2010) (stating that “claims premised on alleged retaliatory acts over four months
after plaintiffs’ protected activity do not permit an inference of causation . . . [and] absent
13
additional evidence of causation . . . these claims must fail”). Furthermore, Plaintiff points to no
evidence showing that the personnel who fired her knew about her disclosures to the City Council.
See McFarland v. George Washington University, 935 A.2d 337, 357 (D.C. 2007) (observing that
“it simply defies logic to charge an employer with acting in retaliation for an action of which the
employer was not, in fact, made aware”) (citations and quotations omitted).
Plaintiff’s other disclosure—that a colleague was falsifying timesheets—occurred much
closer to her termination, as Plaintiff made the disclosure in June 2013 and received notice of her
termination in August 2013. Despite this proximity of time, Plaintiff fails to show the disclosure
was a contributing factor to her termination. For purposes of the DCWPA, “an inference of
retaliation cannot rest solely on temporal proximity . . . where the opportunity for retaliation
conflicts with the opponent’s explicit evidence of an innocent explanation.” Johnson v. District
of Columbia, 935 A.2d 1113, 1120 (D.C. 2007); see also Freeman v. District of Columbia, 60
A.3d 1131, 1145 (D.C. 2012). Here, Defendant justified the termination based on excessive
AWOL hours and insubordination. Other than temporal proximity, Plaintiff identifies no other
evidence to counter Defendant’s non-retaliatory justification. Moreover, Plaintiff offers no proof
that the people responsible for her termination even knew she made the disclosure. According to
the final termination notice, Thomas Luparello made the decision and Christine Davis served as a
hearing officer. See Def.’s Mot.; Ex. 7, ECF No. 72-7. There is no evidence establishing that
either Luparello or Davis knew about the June 2013 disclosure, and Plaintiff does not raise a “cat’s
paw theory” that those who knew about her disclosures notified Luparello or Davis. Cf. Coleman,
794 F.3d at 64 n.8 (recognizing that a lower-level supervisor could proximately cause the
employment action).
14
Finally, the fact that Plaintiff was warned about her termination before she made the June
2013 disclosure undermines any inference of retaliation. In November 2012, Chief Judge
Crawford admonished Plaintiff: “Failure to comply [with the designated work hours] will result
in you being charged AWOL for the hours you are away from your duty station due to early
departure. Failure to comply will result in corrective or adverse action.” Def.’s Mot.; Ex. 11,
ECF No. 72-11. That Defendant carried through with its warning, in the absence of any other
evidence, negates an inference of retaliation.
For these reasons, Plaintiff’s DCWPA retaliation claim falls.
V. CONCLUSION AND ORDER
For the reasons set forth above, Defendant’s Motion for Summary Judgment, ECF No. 72,
is granted in part and denied in part. The parties shall appear for a status hearing in this matter on
February 22, 2019, at 9:15 a.m., in Courtroom 10.
Dated: February 8, 2019 Amit P. Mehta
United States District Judge
15