Watson v. Dc Water and Sewer Authority ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIAN WATSON,
Plaintiff,
v.
Civil Action No. 16-2033 (CKK)
D.C. WATER & SEWER AUTHORITY, et al.,
Defendants.
MEMORANDUM OPINION
(November 15, 2018)
Plaintiff Brian Watson was not hired by Defendant, the District of Columbia Water and
Sewer Authority (“DC Water”), for an open Water Sewer Services 06 position. Plaintiff claims
that he was not hired for this position because Defendant discriminated against him due to his
African-American race and because Defendant retaliated against him for engaging in protected
activity. Plaintiff brings this lawsuit under Title VII of the Civil Rights Act of 1964, Section
1981, and the District of Columbia Human Rights Act (“DCHRA”). 42 U.S.C. § 2000e et seq.
(Title VII); 42 U.S.C. § 1981 et seq. (Section 1981); D.C. Code §§ 2-1401.01-1403.17
(DCHRA). Defendant has moved for summary judgment, and Plaintiff has opposed the motion.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a
whole, the Court shall GRANT Defendant’s [33] Motion for Summary Judgment. Plaintiff
1
The Court’s consideration has focused on the following documents and their attachments and/or
exhibits:
• Def.’s Mot. for Summary Judgment, ECF No. 33 (“Def.’s Mot.”);
• Pl.’s Mem. in Opp’n to Def.’s Mot. for Summary Judgment, ECF No. 34 (“Pl.’s Opp’n”);
and
• Def.’s Reply in Support of Mot. for Summary Judgment, ECF No. 35 (“Def.’s Reply”).
1
failed to present evidence showing that Defendant’s legitimate, lawful reason for not hiring
Plaintiff was actually pretext for racial discrimination or retaliation. As Plaintiff did not create a
genuine dispute of material fact, Defendant is entitled to judgment as a matter of law.
I. BACKGROUND
Plaintiff, an African-American man, began working at the DC Department of Public
Works, a predecessor to DC Water, in 1985. Pl.’s Opp’n, ECF No. 34, Ex. A, 7. While working
at DC Water, Plaintiff had exemplary performance evaluations and attendance, resulting in salary
increases and an eventual promotion to the position of Plumbing Worker, reading and relocating
water meters. Id. at Ex. A, 2, 6; Id. at Ex. B, 13. After working at DC Water for approximately
fifteen years, in 2000, a new Caucasian supervisor was appointed to oversee Plaintiff. Id. at Ex.
B, 11, 12, 25. Plaintiff contends that he complained to the then-Acting Director of the
Department of Water Measurement and Billing that he was being harassed and that his
supervisor wanted to terminate him. Pl.’s Opp’n, ECF No. 34, 3. Plaintiff also sought help from
his union to transfer, but his union was unable to help him. Id. at Ex. B, 25.
In response to the alleged harassment Plaintiff faced from his new supervisor, Plaintiff
resigned on January 9, 2002. Id. at Ex. B, 38. However, the next day, Plaintiff changed his mind
and returned to work asking to rescind his resignation. Id. at Ex. B, 8. Defendant did not allow
Plaintiff to rescind his resignation, claiming that it had already processed the resignation. Id. at
Ex. B, 8-9. Plaintiff contends that he knows of at least one other employee that was allowed to
rescind his resignation without issue. Id. Plaintiff’s Separation Personnel Action Report indicated
In an exercise of its discretion, the Court finds that holding oral argument in this action would not
be of assistance in rendering a decision. See LCvR 7(f).
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that Plaintiff had resigned, but it did not indicate whether or not he was eligible for rehire. Id. at
Ex. B, 37.
Following his resignation, Plaintiff complained of his unfair treatment to various DC
Water employees and board members and to District of Columbia Councilmembers. In these
complaints, Plaintiff requested help in getting his old job back, but he did not ask to be hired for
any specific, new positions. Id. at Ex. B, 8-9, 13-15, 17-18, 26-27, 29, 30-36. In 2013, Plaintiff
joined a class action against Defendant alleging racial discrimination. Id. at Ex. A, 44-51. The
class action settled later that year, and, in 2015, Plaintiff received a settlement as a result of his
participation in the class action. Def.’s Mot., ECF No. 33, Ex. 1, 23.
On February 6, 2015, Plaintiff wrote a letter to George Hawkins, the General Manager of
DC Water, asking for help being reinstated to his old job. Pl.’s Opp’n, ECF No. 34, Ex. B, 17.
And, on May 28, 2015, Plaintiff’s District of Columbia Councilmember wrote a similar appeal to
Mr. Hawkins on Plaintiff’s behalf. Id. at Ex. B, 19. Mr. Hawkins replied to the councilmember,
writing that “we will be happy to look into this employment prospect.” Id. at Ex. B, 20.
With this assurance from Mr. Hawkins, Plaintiff applied for an entry-level Water
Services worker vacancy at the Grade 6 level in June 2015. Id. at Ex. A, 37-38. The position
required a high school degree and one year of relevant experience. Id. at Ex. A, 30. There were
four open positions.
Defendant’s human resources department began screening qualified applicants for the job
on July 2, 2015. Id. On July 29, 2015, a recruiter, Albert Williams, emailed Plaintiff’s
application and resume to the hiring manager, Curtis Brown. For at least two months, Plaintiff’s
was the only application that Mr. Brown received. Id. at Ex. A, 63-64. However, in October
2015, a different recruiter, Giselle Richardson, forwarded the applications for an additional
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twelve qualified applicants to Mr. Brown. Plaintiff’s name was not on the new list. Id. at Ex. A,
60-62. On October 28, 2015, Mr. Brown interviewed nine candidates from that list and
recommended five of them for the position. Id. at Ex. A, 65-68. Ultimately, DC Water offered
the job to four of the candidates and one served as an alternate. Def.’s Mot., ECF No. 33,
Declaration of Giselle Richardson, ¶ 13.
After extending the offers, one of the four candidates failed his background check and the
alternative candidate declined the offer. Id. at Declaration of Giselle Richardson, ¶ 14. With one
position remaining open, in January 2016, Defendant reposted the job opening. Id. at Declaration
of Giselle Richardson, ¶ 15. In March 2016, Ms. Richardson sent Mr. Brown a list of five
qualified candidates for the open Water Services worker position, but, again, Plaintiff’s name
was not on the list. Pl.’s Opp’n, ECF No. 34, Ex. A, 33. Mr. Brown interviewed and
recommended three candidates, one of whom ultimately was offered and accepted the job. Id. at
Ex. A, 35-36.
In June 2016, Plaintiff filed a charge of discrimination against Defendant with the Equal
Employment Opportunity Commission (“EEOC”). Plaintiff alleged that Defendant had
discriminated against him by not hiring him for the Water Services worker vacancy on account
of his race and in retaliation for his past complaints. Id. at Ex. B, 2-6. The EEOC was unable to
determine whether or not Defendant had violated any laws in its treatment of Plaintiff, and on
July 21, 2016, Plaintiff received a notice of his right to sue. Id. at Ex. B, 7. Plaintiff timely filed
suit in this Court on October 12, 2016. See generally Compl., ECF No. 1. Plaintiff initiated this
suit pro se, but as of September 29, 2017, Plaintiff has been represented by counsel. See
generally Notice of Appearance, ECF No. 24.
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II. LEGAL STANDARD
Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See
Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
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Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted).
In recognition of the difficulty in uncovering clear evidence of discriminatory or
retaliatory intent, the district court should approach summary judgment in an action for
employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116
F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)
(en banc). Be that as it may, the plaintiff is not relieved of his burden to support his allegations
with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any
context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at
the summary judgment stage he bears the burden of production to designate specific facts
showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 586
(2009). Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary
judgment device—namely, “to weed out those cases insufficiently meritorious to warrant . . .
trial”—simply by way of offering conclusory allegations, speculation, and argument. Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
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III. RACIAL DISCRIMINATION CLAIMS
A. Statutory Background
Plaintiff brings his claims for racial discrimination under three statutes: Title VII of the Civil
Rights Act, Section 1981, and the DCHRA. See generally Sec. Am. Compl., ECF No. 18. All
three statutes prohibit racial discrimination. Title VII provides in relevant part that it is unlawful
for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section
1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same
right … to make an enforce contracts … as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).
Under this provision, an employer’s actions may not be based on the consideration of
impermissible factors such as race. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474-76
(2006). And, finally, the DCHRA prohibits employers from discharging or otherwise
discriminating against an individual with respect to the terms and conditions of employment due
to race. See D.C. Code §§ 2-1401.01-1403.17. Because all three statutes are analyzed using the
same standards, the Court will address together Plaintiff’s claims under Title VII, Section 1891,
and the DCHRA. Kidane v. Nw. Airlines, Inc., 41 F. Supp. 2d 12, 17 (D.D.C. 1999) (“[T]he same
standards apply in evaluating claims of discrimination and retaliation under Title VII and §
1981”); Deckwith v. Career Blazers Learning Ctr. Of Washington, D.C., 946 F. Supp. 1035, 1048
(D.D.C. 1996) (“The legal standards applicable to race discrimination are the same under the
DCHRA and § 1981.”); Ali v. D.C. Gov’t, 697 F. Supp. 2d 88, 92 n.6 (D.D.C. 2010) (explaining
that claims under Title VII and the DCHRA are analogous).
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From Plaintiff’s Second Amended Complaint, it appears that Plaintiff argues that he faced
two adverse employment actions on account of his race: Defendant’s refusal “to consider or hire
him for positions for which he qualified” and Defendant’s placement of “a designation in his
personnel records that he was not eligible for rehire following his complaints of discrimination
during and after his employment.” Sec. Am. Compl., ECF No. 18, 4-6. But, in his opposition to
Defendant’s motion, Plaintiff refined his claim, alleging only that “Defendant DC Water
discriminated against him based on his race … when it refused to consider him for an entry-level
Water Services worker position for which he qualified.” Pl.’s Opp’n, ECF No. 34, 1. Plaintiff’s
decision to refine his racial discrimination claim to only one adverse action, Defendant’s refusal
to consider Plaintiff for the Water Services worker position, is appropriate as that is the only
action that Defendant committed within the claims period for the three statutes.
Under Title VII, claimants are required to bring an EEOC complaint within 300 days of
the adverse action. See 42 U.S.C. § 2000e-5(e)(1). Mr. Watson filed his EEOC charge on June
23, 2016, so any claims occurring more than 300 days before that date, or before August 25,
2015, are time-barred. The only action that Defendant committed involving Plaintiff after August
25, 2015, is the rejection of Plaintiff from the Water Services worker position. And, for claims
brought under Section 1981, a four-year statute of limitations applies. See Jones v. R.R. Donnelly
& Sons Co., 541 U.S. 369, 382 (2004). Mr. Watson filed his complaint in this Court on October
12, 2016, so all claims prior to October 12, 2012, are time-barred. Again, the only adverse action
committed by Defendant against Plaintiff within this time-frame is Plaintiff’s rejection from the
Water Services worker position. Finally, the DCHRA has a one-year statute of limitations starting
from the date that the plaintiff discovered or reasonably should have discovered the
discriminatory act. See D.C. Code § 2-1403.16. As Plaintiff brought his complaint on October
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12, 2016, all claims that Plaintiff discovered or reasonably should have discovered prior to
October 12, 2015, are barred. And, again, the only adverse action occurring within this time-
frame is Defendant’s rejection of Plaintiff from the Water Services worker position.
Accordingly, the only question before the Court pertaining to Plaintiff’s racial
discrimination claim is whether or not Defendant violated Title VII of the Civil Rights Act,
Section 1981, or the DCHRA when it refused to hire Plaintiff for the Water Services worker
position.2
As mentioned above, the Court uses the same standard for assessing racial discrimination
claims under Title VII, Section 1981, and the DCHRA. Under this well-established framework, a
plaintiff must demonstrate by a preponderance of the evidence that the actions taken by the
Defendant were “more likely than not based on the consideration of impermissible factors” such
as race. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal quotation
marks and citation omitted). In so doing, “the plaintiff may prove his claim with direct evidence,
and absent direct evidence, he may indirectly prove discrimination under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Brady v.
Livingood, 456 F. Supp. 2d 1, 6 (D.D.C. 2006), aff'd, Brady v. Office of Sergeant at Arms, 520
F.3d 490 (D.C. Cir. 2008) (internal quotation marks and citation omitted).
2
In its Motion, Defendant raised this statute of limitations argument, contending that its failure
to hire Plaintiff for the Water Services worker position is Plaintiff’s only actionable claim. Def.’s
Mot., ECF No. 33, 3-6. Plaintiff did not respond to this argument in its Opposition. See generally
Pl.’s Opp’n, ECF No. 34. Accordingly, the Court can treat this argument as conceded by
Plaintiff. Hopkins v. Women’s Div., Gen. Bd. Of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004) (“it is well understood … that when a
plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised
by defendant, a court may treat those arguments that plaintiff failed to address as conceded.”).
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Direct evidence of discrimination is sufficient alone to defeat a defendant's motion for
summary judgment. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (explaining that
the McDonnell Douglas test is not used where the plaintiff presents direct evidence of
discrimination); see also Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C. Cir. 2013).
Here, however, Plaintiff proffers no direct evidence that Defendant discriminated against him on
the basis of race.
In the absence of direct evidence of discrimination based on race, the McDonnell
Douglas framework applies. Pursuant to that framework, the plaintiff has the initial burden of
proving by a preponderance of the evidence a prima facie case of discrimination. Burdine, 450
U.S. at 252-53. For a claim alleging racial discrimination with respect to employment, a plaintiff
makes out a prima facie case by showing (1) that he is a member of a protected group; (2) that he
suffered an adverse employment action; and (3) that the adverse action gives rise to an inference
of discrimination. Royall v. Nat'l Ass'n of Letter Carriers, AFL–CIO, 548 F.3d 137, 144 (D.C.
Cir. 2008). Once a plaintiff makes out a prima facie case, “the burden shifts to the defendant ‘to
articulate some legitimate, nondiscriminatory reason for the [adverse action].’” Burdine, 450
U.S. at 253 (quoting McDonnell Douglas Corp., 411 U.S. at 802). If the defendant is successful,
then the plaintiff must prove by a preponderance of the evidence that the “legitimate reasons
offered by the defendant were not its true reasons, but were pretext for discrimination.” Id.
In Brady v. Office of Sergeant at Arms, the D.C. Circuit simplified the analysis for racial
discrimination suits. 520 F.3d at 494. Under Brady, once an employer has proffered a legitimate,
nondiscriminatory reason, the McDonnell Douglas burden-shifting framework disappears, and
the court must simply determine whether the plaintiff has put forward enough evidence to defeat
the defendant's proffer of a legitimate, non-discriminatory reason and support a finding of
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discrimination. See id. (“[W]here an employee has suffered an adverse employment action and
an employer has asserted a legitimate, non-discriminatory reason for the decision, the district
court need not—and should not —decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas.” (emphasis in original)). Ultimately, “[f]or purposes of
summary judgment, the operative question … is whether ‘the employee produced sufficient
evidence for a reasonable jury to find that ... the employer intentionally discriminated against the
employee on the basis of race.’” Ayissi–Etoh, 712 F.3d at 576 (quoting Brady, 520 F.3d at 494).
In other words, once a defendant has stated a legitimate, non-discriminatory reason for the
adverse employment action, the question “becomes whether, based on the totality of the parties'
evidence, a reasonable jury could determine that the defendant's proffered explanation was
pretext for discrimination.” Kilby-Robb v. Duncan, 77 F. Supp. 3d 164, 169 (D.D.C. 2015)
(citing Brady, 520 F.3d at 494-95).
B. Analysis
1. Defendant’s Legitimate, Non-Discriminatory Reason
Defendant argues in its motion for summary judgment that it had a legitimate,
nondiscriminatory reason for not hiring Plaintiff for the Water Services worker position—it hired
other qualified individuals with recent, relevant work experience. Defendant’s recruiter selected
qualified candidates whose applications showed recent, relevant work experience from the pool
of applicants. The recruiter sent those qualified candidates to the hiring manager, who
interviewed some of the candidates and made offers to those who expressed an understanding of
the position. Def.’s Mot., ECF No. 33, Declaration of Curtis Brown, § 12-15. “Selecting a pool
of qualified candidates based upon their written credential and then making a final selection
based upon personal interviews is an obviously reasonable method of hiring a professional
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employee.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183-84 (D.C. Cir. 1996).
According to Defendant, Plaintiff was not refused the job because of his race, but, instead,
because other, qualified candidates were given the job.
Generally, DC Water applicants are screened by the human resources department
recruiters based on the job description, skills, and qualifications for the position. Def.’s Mot.,
ECF No. 33, Ex. 3, Deposition of Albert Williams, 8.3 Those applicants who meet the minimum
qualifications are then sent to the hiring manager who selects candidates to interview. Id. at Ex.
3, Deposition of Albert Williams, 8-9. But, there are exceptions to this general process. In
situations where there are a large number of applicants, the recruiters will not send every
qualified applicant to the hiring manager for review because to do so would be overly
burdensome. Id. at Declaration of Giselle Richardson, ¶¶ 10-11.
In this case, there were over 550 applicants for the Water Services worker position, many
of whom met the minimum qualifications. Id. at Declaration of Giselle Richardson, ¶¶ 8-9. Due
to the high number of qualified applicants for this position, neither the recruiters nor the hiring
manager had sufficient time to screen and interview all qualified applicants. Id. at Declaration of
Giselle Richardson, ¶ 11. Accordingly, only some of the many qualified applicants were
screened and forwarded to the hiring manager. Id.
On July 29, 2015, the former DC Water Manager of Recruitment, Albert Williams, sent
Plaintiff’s application and resume to the hiring manager, Mr. Brown. Id. at Ex. 3, Deposition of
Albert Williams, 13; Id. at Declaration of Curtis Brown, ¶ 10, Ex. C. As it was rare to receive
only one candidate, Mr. Brown emailed Mr. Williams asking if there were more applicants for
3
Mr. Williams’s name was misstated in his deposition transcript as “Alfred.” Def.’s Mot., ECF
No. 33, Statement of Material Facts As To Which There Is No Genuine Dispute, ¶ 28 n.3. The
Court has corrected this mistake.
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the position. Id. at Declaration of Curtis Brown, ¶ 11 and Ex. C. Mr. Williams never responded,
and when another recruiter, Giselle Richardson, sent Mr. Brown the next round of twelve
qualified applicants, Plaintiff was not included. Id. at Declaration of Giselle Richardson, ¶ 12.
Ms. Richardson was not aware that Mr. Williams had previously shared Plaintiff’s application
with Mr. Brown. Id. at Declaration of Giselle Richardson, ¶ 18. Based on this new list, supplied
by Ms. Richardson, Mr. Brown interviewed nine qualified candidates with recent, relevant
experience. Id. at Declaration of Curtis Brown, ¶ 14. Ultimately the top four candidates were
recommended for hire, with one alternate. Id. at Declaration of Curtis Brown, ¶ 13. One of the
recommended candidates failed the background test and the alternate declined the position.
Accordingly, there remained one open position. Id. at Declaration of Curtis Brown, ¶ 15.
Because there was an open position, in January 2016, Ms. Richardson reposted the
position and began screening additional applicants. Id. at Declaration of Giselle Richardson, ¶
15. On January 5, 2016, Ms. Richardson sent Plaintiff an email informing him that Defendant
had received numerous qualified applicants for the position and that he was no longer being
considered. Id. at Declaration of Giselle Richardson, ¶ 16, Ex. B. And, on March 2, 2016, Ms.
Richardson sent Mr. Brown a list of five qualified candidates for the open position. Id. at
Declaration of Giselle Richardson, ¶ 17. Mr. Brown interviewed three of those candidates who
were qualified and had recent, relevant work experience and offered one candidate the position.
Id. at Declaration of Curtis Brown, ¶¶ 19-20.
2. Plaintiff’s Evidence of Pretext
Based on this chain of events, Defendant argues that it did not hire Plaintiff because it
instead chose to hire four other qualified candidates with recent, relevant work experience.
Because Defendant presented a legitimate, non-discriminatory reason for Plaintiff’s non-
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selection, the Court proceeds to considering the ultimate question of “discrimination vel non”—
whether Plaintiff adduced sufficient evidence for a reasonable jury to conclude that Defendant’s
proffered reason is pretextual and that its real motivation for not hiring Plaintiff was
discrimination based on race. Reeves, 530 U.S. at 142-43.
Pretext may be established “directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer's proffered
explanation is unworthy of credence.” Burdine, 450 U.S. at 256; see also Reeves, 530 U.S. at
143. “Proof that the defendant's explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it may be quite
persuasive.” Reeves, 530 U.S. at 147 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517
(1993) (“[P]roving the employer's reason false becomes part of (and often considerably assists)
the greater enterprise of proving that the real reason was intentional discrimination.”)); see also
Aka, 156 F.3d at 1290 (“[A] plaintiff's discrediting of an employer's stated reason for its
employment decision is entitled to considerable weight.”). A plaintiff can also attempt to “avoid
summary judgment by presenting other evidence, direct or circumstantial, that permits an
inference of discrimination,” such as “discriminatory statements by the employer,” “other
attitudes suggesting the decision maker harbors discriminatory animus,” or other “data”
concerning the plaintiff’s protected class. Holcomb v. Powell, 433 F.3d 889, 899 (D.C. Cir.
2006).
Plaintiff presents three arguments for why Defendant’s stated reason for not hiring him is
pretextual. First, Plaintiff argues that he met the basic qualifications for the position. Second,
Plaintiff contends that Defendant deviated from its own hiring practices in not selecting Plaintiff.
Third, Plaintiff claims that Defendant’s justification for not hiring him is beyond credence. The
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Court concludes that none Plaintiff’s arguments are sufficient to create an inference of pretext
and withstand summary judgment.
a. Plaintiff’s Qualifications
First, Plaintiff argues that Defendant’s legitimate, non-discriminatory reason for not
interviewing or hiring him is pretextual because he met the basic qualifications for the position.
Pl.’s Opp’n, ECF No. 34, 12. But, it is not enough that Plaintiff was qualified for the job. In
order to show that he should have been hired over those who were hired, Plaintiff “must show
that []he is significantly better qualified for the job than [the applicant] ultimately chosen.”
Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 25 (D.C. Cir. 2013) (emphasis in original)
(internal quotation marks and citations omitted). And Plaintiff fails to make such a showing.
The Water Services worker position for which Plaintiff applied required only that the
applicant have a high school diploma and one year of relevant work experience. Plaintiff had his
GED and had worked for DC Water for over a decade before resigning in 2002. Accordingly,
Plaintiff met the minimum qualifications for the position. But, each of the candidates that
Defendant interviewed and later hired were also qualified, and arguably better qualified than
Plaintiff.
The primary duty of the Water Services worker position for which Plaintiff applied is
making repairs in support of the operation and maintenance of the water supply system. Def.’s
Mot., ECF No. 33, Declaration of Curtis Brown, ¶ 9, Ex. B. Supporting the operation and
maintenance of the water supply system may require workers to engage in preventative
maintenance, to repair and replace mains and service lines, to assist in the operation of valves
and hydrants during pressure tests, to clear and restore work sites, to assist in traffic control
around work sites, and to maintain the equipment used on the job. Id.
15
The nine candidates that were interviewed in October 2015 were all qualified and had
recent, relevant work experience. Id. at Declaration of Curtis Brown, ¶ 14. At the time he was
interviewed, Mr. Darby was working as a plumber measuring, cutting, threading, and mounting
pipes; Mr. Dickens was working for DC Water as a laborer operating hydrants; Mr. Gaston was
working as a Utility System Operator for DC Water monitoring water system pressures; Mr.
Hughes had worked for DC Water until 2010 installing and replacing water mains and servicing
lines to homes; Mr. Jackson had worked as a plumber until 2014; Mr. Nixon was working as a
maintenance worker repairing and inspecting hydrants and assisting with the repair of broken
lines and services; Mr. Owens was working as a traffic supervisor and laborer installing
electrical pipes and had recent experience working on water mains; Mr. Stevens was working as
a utility construction worker assisting with equipment maintenance and valve inspections; and
Mr. Williams had worked until 2014 as a laborer for a company that contracted with DC Water.
Id. at Declaration of Curtis Brown, Exs. E-M.
The three applicants who were interviewed for the position in March 2016 were similarly
qualified with recent, relevant work experience. Id. at Declaration of Curtis Brown, ¶ 19. Mr.
Barr had worked until 2013 as a plumber maintaining plumbing systems and installing valves
and other equipment; Mr. Griffin had worked as a drain cleaning technician until 2011 laying
water pipe and assisting with drain clearance; and Mr. Tanner was working as a construction
laborer with experience digging ditches, backfilling excavations, placing traffic signs in work
areas, and cutting pipes. Id. at Declaration of Curtis Brown, Exs. N-P.
Compared with the candidates who received interviews, it is not apparent that Plaintiff’s
work experience was as relevant or as recent. At the time he applied for the Water Services
Worker position in 2015, Plaintiff had not worked for DC Water for approximately thirteen
16
years. Id. at Ex. 1, Deposition of Brian Watson, 27. When Plaintiff was hired by DC Water in
1985, he was hired as a laborer in charge of relocating water meters from inside houses to street
curbs. Id. at Ex. 1, Deposition of Brian Watson, 5. After approximately two years as a laborer,
Plaintiff moved to a position as a plumbing worker where he visited various residential and
commercial addresses, read water meters, processed the numbers and sent out water bills. Id. at
Ex.1, Deposition of Brian Watson, 5-6. While working with DC Water, Plaintiff only very rarely
assisted in the operation of valves and hydrants, conducted disinfection tests, worked with main
and service activations, or participated in flow tests—all tasks relevant to the Water Services
worker position. Id. at Deposition of Brian Watson, 28-29. And, outside of his work experience
with DC Water, which was approximately thirteen years old at the time Plaintiff applied,
Plaintiff had no relevant water services, construction, or plumbing experience. Id. at Deposition
of Brian Watson, 30.
Based both on the qualifications of the twelve applicants who were interviewed for the
position and on Plaintiff’s qualifications, the Court concludes that Plaintiff was, at best, similarly
qualified to the applicants who were granted an interview. “In order to justify an inference of
discrimination, the qualifications gap [between the selected applicants and the plaintiff] must be
great enough to be inherently indicative of discrimination.” Holcomb, 433 F.3d at 897.
Accordingly, where the candidates’ qualifications are relatively similar, as is true here, a
reasonable jury would not ordinarily infer discrimination from Plaintiff’s non-selection. Instead,
a reasonable jury would “assume that the employer is more capable of assessing the significance
of small differences in the qualifications of candidates, or that the employer simply made a
judgment call.” Aka, 156 F.3d at 1294. Here, the Court concludes that an inference of
discrimination is not warranted due to the fact that Plaintiff was not significantly better qualified
17
than those applicants who were selected for an interview. See Bray v. Georgetown Univ., 917 F.
Supp. 55, 60 (D.D.C. 1996) (“Nothing … requires an employer to interview all qualified
applicants who submit resumes in response to an advertised vacancy.”). Plaintiff’s qualification
for the position does not provide evidence that Defendant’s legitimate, non-discriminatory reason
for not hiring Plaintiff was pretextual.
b. Defendant’s Ordinary Hiring Practices
Second, Plaintiff argues that by not interviewing and hiring him, Defendant failed to
follow its own hiring practices, leading to an inference that Defendant’s legitimate, non-
discriminatory reason is pretextual. Pl.’s Opp’n, ECF No. 34, 12-13. Plaintiff argues that
Defendant deviated from its hiring policy by: not advancing his application to the hiring
manager, not reviewing all applications, and excluding him even though he had priority in the
review process as he had previously worked for DC Water. When an organization deviates from
its typical hiring process without explanation, the deviation “can justify an inference of
discriminatory motive.” Lathram v. Snow, 336 F.3d 1085, 1093 (D.C. Cir. 2003). But, here, any
deviation from the typical hiring process has been explained by Defendant.
First, Plaintiff faults Defendant for not forwarding his applicant to the hiring manager,
Mr. Brown, even though Plaintiff was qualified for the position. As an initial note, Plaintiff’s
application was forwarded to Mr. Brown by recruiter Mr. Williams. But, Plaintiff’s application
was not included in the list of twelve qualified applicants that another recruiter, Ms. Richardson,
sent to Mr. Brown in October 2015. And, it was again not included in the list of another five
qualified candidates which Ms. Richardson sent to Mr. Brown in March 2016. Plaintiff argues
that, because he met the minimum qualifications, Ms. Richardson was required to forward his
18
application to Mr. Brown. According to Plaintiff, only Mr. Brown, the hiring manager, had the
authority to choose among qualified candidates to narrow the interview list.
In support of his argument, Plaintiff cites to the deposition of the manager of recruitment,
Mr. Williams. According to Mr. Williams, after the applicants are screened by the recruiters,
“[t]hose candidates that meet that baseline criteria would be passed on to the hiring manager for
his or her review. He or she would then select those candidates that he or she wished to
interview.” Pl.’s Opp’n, ECF No. 34, Ex. E, Deposition of Albert Williams, 18-19. Plaintiff
understands Mr. Williams’s statement to be describing a policy that all qualified candidates be
sent to the hiring manager. According to Plaintiff, because he was qualified, Defendant violated
its own policy by excluding him from the October 2015 and the March 2016 qualified applicants
lists sent to Mr. Brown.
But, Plaintiff ignores the fact that, while it may be Defendant’s general practice to
forward all qualified applicants to the hiring manager, that general practice has caveats.
According to the declaration of Giselle Richardson, Defendant’s talent acquisition specialist,
when “DC Water receives hundreds of applications for a position, a recruiter will not send every
qualified candidate to the hiring manager for review, because to do so would be overly
burdensome.” Def.’s Mot., ECF No. 33, Declaration of Giselle Richardson, ¶ 10. DC Water
received 552 applications for the Water Services worker position, and many of those applicants
met the minimum qualifications. Id. at Declaration of Giselle Richardson, ¶¶ 8-9. Plaintiff
presents no evidence that it was Defendant’s policy to send all qualified applicants to the hiring
manager when the qualified applicants numbered in the hundreds. And, Defendant has presented
evidence that it was, in fact, not its policy to send all qualified applicants to the hiring manager
when it would be overly burdensome to do so. Id. at Declaration of Giselle Richardson, ¶¶ 10-11.
19
Accordingly, Ms. Richardson’s failure to send Plaintiff’s application to Mr. Brown does not
support an inference of pretext.
Second, Plaintiff argues that Defendant deviated from its typical hiring process by not
reviewing all applications. According to Plaintiff, it is Defendant’s hiring policy to “ensure that
all current qualified employees and individuals who apply for a job opening receive[]
consideration.” Pl.’s Mot., ECF No. 34, Ex. A, 14. But, having Plaintiff’s application “receive[]
consideration” does not equate to being offered a job, or even an interview. Moreover, the hiring
policy does not state that all qualified employees must receive consideration from the hiring
manager. And, Plaintiff presents no evidence that his application did not receive consideration
from at least someone in the hiring process. In fact, it appears that Plaintiff’s application did
receive consideration when Mr. Williams forwarded his application to Mr. Brown. Accordingly,
Plaintiff presents no evidence that Defendant violated its hiring process by failing to consider his
application. Again, this argument does not support an inference of pretext.
Finally, Plaintiff argues that Defendant deviated from its hiring practices by excluding
him from the qualified applicants lists even though he had priority in the hiring process. Plaintiff
cites to the deposition of Andre Clay, a member of Defendant’s human resources team, to
support his claim that he had priority in the hiring process. But, Mr. Clay testified that if a person
is “terminated for resigning, that person would be then given an eligibility based upon their
actual criteria … meaning that … basically it’s not an impact.” Id. at Ex. D, Deposition of Andre
Clay, 15. Mr. Clay’s statements do no support Plaintiff’s assertion that he should have been
given priority in the hiring process after resigning. Plaintiff also cites to the deposition of Mr.
Williams for support. Mr. Williams did testify that recruiters “would also look at employees who
were eligible for rehire, but were no longer with the organization … they sort of had a secondary
20
priority in the process.” Id. at Ex. E, Deposition of Albert Williams, 22. But, Mr. Williams
clarified that statement, explaining that the only employees eligible for rehire who would receive
priority consideration are those employees that were terminated due to a reduction in workforce.
Def.’s Reply, ECF No. 35, Ex. A, Deposition of Albert Williams, 4-5. Employees, such as
Plaintiff, who voluntarily terminated their position would not receive priority consideration. Id.
Considering Mr. William’s statements in full, Plaintiff has not presented evidence that he
was entitled to priority consideration in the hiring process. Accordingly, Defendant did not
violate its hiring practices by failing to give Plaintiff priority consideration. Moreover, even if
the Court were to assume that Plaintiff did have priority in the hiring process, that priority would
not necessarily entitle Plaintiff to an interview or a job. Plaintiff presents no evidence that, even
with priority consideration, his level of work experience would entitle him to an interview or job
given the relative qualifications of other, external candidates.
Plaintiff failed to produce evidence showing that Defendant was required to interview or
hire him for the Water Services worker position as part of Defendant’s usual hiring process.
Accordingly, Plaintiff cannot use this ground as evidence that Defendant’s legitimate, non-
discriminatory reason for not hiring Plaintiff is pretextual.
c. Credibility of Defendant’s Explanation
Third, Plaintiff contends that Defendant’s legitimate, non-discriminatory reason for his
non-selection is pretextual because it is beyond credence. Pl.’s Opp’n, ECF No. 34, 13-16. An
employee may demonstrate pretext by showing that the employer’s stated justification is
“unworthy of credence.” Burdine, 450 U.S. at 256. When an employer’s explanation is unworthy
of credence, “in appropriate circumstances, the tier of fact can reasonably infer from the falsity
21
of the explanation that the employer is dissembling to cover up a discriminatory purpose.”
Reeves, 530 U.S. at 147.
Here, Plaintiff presents two reasons why Defendant’s legitimate, non-discriminatory
reason is unworthy of credence. First, Plaintiff claims that Mr. Brown’s justification for ignoring
Plaintiff’s application makes no business sense. Second, Plaintiff contends that Ms. Richardson’s
justification for forgetting Plaintiff’s application is beyond credence. The Court is persuaded by
neither of Plaintiff’s arguments.
First, Plaintiff claims that Mr. Brown’s justification for ignoring Plaintiff’s application
makes no business sense. As was previously explained, Mr. Williams sent Plaintiff’s application
to Mr. Brown approximately two months before Ms. Richardson sent Mr. Brown the list of
twelve qualified applicants in October 2015. Mr. Brown did not interview Plaintiff or reject him.
Instead, Mr. Brown waited for the list of additional qualified candidates from Ms. Richardson
and interviewed nine of those candidates. Pl.’s Opp’n, ECF No. 34, Ex. C, Deposition of Curtis
Brown, 19-20. Plaintiff claims that, based on his application, Mr. Brown knew that Plaintiff was
qualified, had work experience at DC Water, and was available to start immediately. Id. at Ex. A,
63-64. According to Plaintiff, “[i]t makes no practical or business sense for Mr. Brown to delay
interviewing Plaintiff … and work understaffed when the information available to him indicated
that Plaintiff … would be able to quickly transition into the Sewer Services Worker 06 position.”
Id. at 14.
As an initial matter, Plaintiff ignores Mr. Brown’s reasonable explanation for why he did
not immediately act on Plaintiff’s application. According to Mr. Brown, “it’s rare that [the
recruiters] just send one candidate.” Id. at Ex. C, Deposition of Curtis Brown, 17. Mr. Brown did
not immediately act on Plaintiff’s application because he was expecting to receive additional
22
qualified candidates from the recruiters. Plaintiff presents no record evidence that would cause
the Court to doubt Mr. Brown’s reasonable explanation or to view it as pretext for racial
discrimination.
Additionally, Plaintiff presents no evidence that Mr. Brown was in any rush to fill the
open Water Services worker positions. It is undisputed that there were four open positions for the
Water Services worker job. Def.’s Mot., ECF No. 33, Statement of Material Facts As To Which
There Is No Genuine Dispute, ¶ 42. From this undisputed fact, Plaintiff asks the court to jump to
the conclusion that Mr. Brown unreasonably “chose to work understaffed for an entire season in
lieu of interviewing Plaintiff.” Pl.’s Opp’n, ECF No. 34, 14. But, Plaintiff cites to no record
evidence showing that Defendant was working understaffed or that Defendant required the open
Water Services Worker positions to be expeditiously filled. Brown v. Mills, 674 F. Supp. 2d 182,
188 (D.D.C. 2009) (explaining that under the summary judgment standard, the non-moving party
must support allegations with competent evidence). Absent any evidence, the Court will not
jump to the conclusion that Defendant chose to work understaffed for a season or that such a
decision would be unreasonable.
The D.C. Circuit has “consistently declined to serve as a super-personnel department that
reexamines an entity’s business decisions.” Holcomb, 433 F.3d at 897) (internal quotation marks
and citation omitted). Absent any record evidence, this Court will not conclude that Mr. Brown
made an unreasonable business decision in failing to interview and hire Plaintiff immediately
upon receiving his application. This is especially true because Mr. Brown did not interview every
qualified candidate that the recruiters sent to him. In October 2015, Ms. Richardson sent Mr.
Brown a list of twelve qualified candidates, but Mr. Brown chose to interview only nine of them.
Pl.’s Opp’n, ECF No. 32, Ex. A, 60-61, 65. Accordingly, the Court does not find Mr. Brown’s
23
explanation for failing to act immediately on Plaintiff’s application to be beyond credence or to
be evidence of pretext.
Second, Plaintiff argues that Ms. Richardson’s justification for “forgetting” Plaintiff’s
application is unreasonable. Plaintiff has three reasons for why Ms. Richardson’s justification is
beyond credence: Defendant’s General Manager had recently promised a DC Councilmember to
look into Plaintiff’s employment prospects; Defendant’s candidate tracking system offered a
simple way to track and sort candidates; and, another qualified candidate was placed on both the
October 2015 and March 2016 qualified applicants lists even though he was not interviewed in
October 2015. Pl.’s Opp’n, ECF No. 34, 15. None of these arguments support Plaintiff’s
allegation that Ms. Richardson’s explanation is beyond credence.
First, Plaintiff argues that Ms. Richardson would have remembered Plaintiff’s application
because Defendant’s General Manager, Mr. Hawkins, had recently promised a DC
Councilmember to look into Plaintiff’s job prospects. Id., at Ex. B, 19-20. But, Plaintiff provides
no evidence that Ms. Richardson had any knowledge of Mr. Hawkins’s conversation with the DC
Councilmember. In fact, Plaintiff provides no evidence that Mr. Hawkins told anyone with
responsibility for filling the Water Services worker position about his conversation with the DC
Councilmember. And, the Court will not infer such knowledge especially given that Mr.
Hawkins’s conversation with the DC Councilmember concerned Plaintiff’s employment
prospects generally and made no mention of the Water Services worker position for which
Plaintiff later applied. Absent evidence that Ms. Richardson was aware of Mr. Hawkins’s
conversation with the DC Councilmember, that conversation provides no evidence that Ms.
Richardson should have paid special attention to Plaintiff’s application.
24
Second, Plaintiff claims that Defendant’s candidate tracking system offered a simple way
to track candidates, so Ms. Richardson should not have forgotten Plaintiff’s application. But,
Plaintiff misconstrues Ms. Richardson’s statements. Ms. Richardson only claimed that she “had
no knowledge of Mr. Williams forwarding [Plaintiff’s] resume to Mr. Brown.” Def.’s Mot., ECF
No. 33, Declaration of Giselle Richardson, ¶ 18. Ms. Richardson never stated that she was
unaware of or had forgotten about Plaintiff’s application. Instead, as was explained above, due to
the high volume of applications, Ms. Richardson did not screen and send every qualified
candidate to Mr. Brown. Instead, she provided Mr. Brown with a list of some, but not all, of the
candidates who met the minimum qualifications for the Water Services worker position. Id. at
Declaration of Giselle Richardson, ¶¶ 10-12. In short, there is no record evidence to support
Plaintiff’s contention that Ms. Richardson “forgot” about Plaintiff’s application. Accordingly,
the potential usefulness of the candidate tracking system is not relevant.
Plaintiff’s third argument fails for similar reasons. Plaintiff argues that Ms. Richardson’s
justification for forgetting Plaintiff’s application is not worthy of credence because another
qualified candidate was placed on both the October 2015 and the March 2016 qualified
candidates lists even though he was not interviewed in October 2015. Pl.’s Opp’n, ECF No. 34,
Ex. A, 60-61, 33. But, again, Plaintiff provides no record evidence to support the contention that
Ms. Richardson unreasonably “forgot” about Plaintiff’s application. As was explained above, not
every qualified applicant appeared on either the October 2015 or the March 2016 lists. Instead,
because there were numerous qualified candidates, only some of the many qualified candidates
were forwarded on to Mr. Brown. Def.’s Mot., ECF No. 33, Declaration of Giselle Richardson, ¶
10. Because Ms. Richardson did not send all qualified candidates to Mr. Brown, the fact that
Plaintiff was not on the October 2015 or the March 2016 lists, even though another qualified
25
candidate was, is not evidence that Ms. Richardson unreasonably forgot about Plaintiff’s
application.
Plaintiff fails to present any record evidence that Ms. Richardson’s statements concerning
his application are unworthy of credence. Instead, Plaintiff makes conclusory allegations that
Ms. Richardson unreasonably “forgot” about Plaintiff’s application. But, without record
evidence, Plaintiff’s conclusory allegations are insufficient to show that Defendant’s legitimate,
non-discriminatory reason for not hiring Plaintiff is pretextual. See Mulhern v. Gates, 525 F.
Supp. 2d 174, 186 (D.D.C. 2007) (explaining that “self-serving, unsupported statement[s]” and
“conclusory sentences” are “insufficient to defeat a motion for summary judgment”).
The Court has now addressed each of Plaintiff’s arguments for why Defendant’s
legitimate, non-discriminatory reason is pretext for racial discrimination. But, Plaintiff has not
adduced sufficient evidence for a reasonable jury to conclude that Defendant’s proffered reason
is pretextual or that its real motivation for not hiring Plaintiff was racial discrimination. Reeves,
530 U.S. at 142–43, 120 S. Ct. 2097.
In fact, the record evidence casts serious doubt on Plaintiff’s claim that race played any
role in Defendant’s decision not to interview or hire him. For example, both the decision makers
who did not select Plaintiff and the applicants who were ultimately hired instead of Plaintiff all
share Plaintiff’s race. The two people in charge of hiring for the Water Services worker position,
Mr. Brown and Ms. Richardson, are both the same race as Plaintiff, African-American. Def.’s
Mot., ECF No. 33, Declaration of Curtis Brown, ¶ 1; Id. at Declaration of Giselle Richardson, ¶
1. When those in charge of hiring are of the same race as the plaintiff, “any claim of racial
discrimination [is] suspect.” Hardy v. Marriott Corp., 670 F. Supp. 385, 392 (D.D.C. 1987.
Additionally, the four qualified applicants ultimately hired for the Water Services worker
26
position are all African-American as well. Def.’s Mot., ECF No. 33, Ex. 4, Deposition of Curtis
Brown, 15-16; Id. at Declaration of Curtis Brown, ¶ 16. The shared race of Plaintiff and those
ultimately hired “cuts strongly against any inference of discrimination.” Murray v. Gilmore, 406
F.3d 708, 715 (D.C. Cir. 2005). While these factors are not dispositive, they further weaken
Plaintiff’s already extremely tenuous claim of racial discrimination.
Moreover, if the above were not enough to entitle Defendant to summary judgment on
Plaintiff’s claim of racial discrimination, Plaintiff presents no evidence that the relevant decision
makers even knew his race when deciding not to interview or hire him. Ms. Richardson stated
that “[p]rior to the filing of his Complaint on October 12, 2016, I was not aware of [Plaintiff’s]
race.” Def.’s Mot., ECF No. 33, Declaration of Giselle Richardson, § 19. And, Mr. Brown
explained that “[a]t no time, either before or during the hiring process, was I aware of
[Plaintiff]s’ race.” Id. at Declaration of Curtis Brown, § 22. Plaintiff provides no evidence that
would cause the Court to doubt these statements which were made under oath. “It is axiomatic
that a defendant cannot be found to have discriminated against a plaintiff on the basis of race
where the defendant had no knowledge of the plaintiff’s race.” Washington v. Chao, 577 F.
Supp. 2d 27, 40 (D.D.C. 2008); see also Jackson v. Dep’t of Justice, 2003 U.S. App. LEXIS
20014, at *2 (D.C. Cir. Sept. 29, 2003) (explaining that the plaintiff could not show
discrimination because “[t]he record … contains no evidence that the individuals who made the
hiring determinations knew of [the plaintiff’s] race”). Plaintiff provides the Court with no
argument for how Defendant could have discriminated against Plaintiff on the basis of his race
while simultaneously not knowing his race.
In summary as to Plaintiff’s racial discrimination claims, Plaintiff failed to present a
genuine dispute of material fact concerning whether Defendant improperly considered Plaintiff’s
27
race in not interviewing or hiring him for the Water Services worker position. Defendant argues
that it did not hire Plaintiff because it hired other qualified workers with recent, relevant work
experience, thus presenting a legitimate, non-discriminatory reason for the decision. Plaintiff’s
arguments that he was qualified for the job, that Defendant failed to follow its usual hiring
practices, and that Defendant’s proffered reason is unworthy of credence do not create an
inference that Defendant’s legitimate, non-discriminatory reason was pretextual. And, Plaintiff
failed to cite any other record evidence that would allow a reasonable jury to conclude that
Defendant’s true reason for not interviewing or hiring Plaintiff was his race. Accordingly,
Defendant is entitled judgement as a matter of law on Plaintiff’s racial discrimination claims.
IV. RETALIATION CLAIMS
A. Statutory Background
The Court moves next to Plaintiff’s retaliation claims, again, brought under Title VII of
the Civil Rights Act, Section 1981, and the DCHRA. “Title VII prohibits federal agencies
from retaliating against employees for asserting their rights.” Holcomb v. Powell, 433 F.3d 889,
901 (D.C. Cir. 2006). Specifically, Title VII makes it unlawful for an employer “to discriminate
against [an] employee[] … because he has opposed any practice” made unlawful by Title VII,
such as racial discrimination. 42 U.S.C. § 2000e-3(a). The Supreme Court has recognized that
Section 1981, like Title VII, encompasses retaliation claims. CBOCS West, Inc. v. Humphries,
553 U.S. 442, 451 (2008). Similarly, the DCHRA makes it unlawful for an employer to retaliate
against an employee for exercising “any right granted or protected under [the DCHRA]” or
“because [an employee] has opposed any [discriminatory] practice.” D.C. Code § 2-1402.61(a)-
(b). These three statutes use the same standard for evaluating retaliation claims, and Defendant
28
does not treat the statutes separately. Accordingly, the Court will assess Plaintiff’s claims under
the three statutes together.
Evaluation of retaliation claims follows the same burden-shifting template as
discrimination claims. Holcomb, 433 F.3d at 901. First, a plaintiff must establish a prima facie
case of retaliation. A plaintiff makes a prima facie case of retaliation by showing that “(1) he
engaged in protected activity; (2) he was subjected to an adverse employment action; and (3)
there was a causal link between the protected activity and the adverse action.” Hamilton v.
Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (internal quotation marks and citation omitted)
(Title VII); Fox v. Giaccia, 424 F. Supp. 2d 1, 9 (D.D.C. 2006) (using the same test for the
DCHRA); Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (using the
same test for Section 1981).
After a plaintiff has established a prima facie case of retaliation, the defendant must offer
a lawful, non-retaliatory explanation for the employment action. Where “the employer has
proffered a non-retaliatory explanation for a materially adverse employment action, the
sufficiency of the plaintiff’s prima facie case is no longer in issue, and ‘the only question is
whether the employee’s evidence creates a material dispute on the ultimate issue of retaliation.’”
McGrath v. Clinton, 666 F.3d 1377, 1380 n.3 (D.C. Cir. 2012) (quoting Jones v. Bernanke, 557
F.3d 670, 678 (D.C. Cir. 2009)).
In this case, the only adverse action before the Court is Plaintiff’s non-selection for the
Water Services worker position. See Supra Sec. III.A. Defendant has proffered a legitimate, non-
retaliatory reason for not selecting Plaintiff—Defendant hired other, qualified applicants with
recent, relevant work experience. And, the Court concludes that Plaintiff has failed to rebut this
proffered reason or to establish any inference of retaliation.
29
B. Analysis
Plaintiff presents two incidents of allegedly protected activity for which he argues he was
wrongfully retaliated against. First, Plaintiff claims that Defendant retaliated against him because
he complained that he had been unfairly treated and harassed by his supervisor leading to his
resignation from DC Water in 2002. Second, Plaintiff claims that Defendant retaliated against
him based on his participation in a 2013 class action against DC Water alleging racial
discrimination. Defendant, again, asserts that it had a legitimate, non-retaliatory reason for not
hiring Plaintiff—Defendant hired other qualified applicants with recent, relevant work
experience. Plaintiff fails to present record evidence which would allow a reasonable jury to
conclude that Defendant’s proffered reason was pretext for retaliation.
First, Plaintiff argues that Defendant did not interview or hire him for the Water Services
worker position in retaliation for Plaintiff’s complaints about unfair treatment and harassment
that occurred while working at DC Water. Pl.’s Opp’n, ECF No. 34, 10. Plaintiff cites many
instances in the record where he complained about “unfair treatment” by his supervisor. But,
simply complaining about “unfair treatment” is not a protected activity. In order for an activity to
be “protected,” the employer must be aware that that the employee is complaining of treatment
that is unlawful and discriminatory. See Mazloum v. District of Columbia, 442 F. Supp. 2d 1, 12
(D.D.C. 2006). “While no ‘magic words’ are required, the complaint must in some way allege
unlawful discrimination, not just frustrated ambition.” Broderick v. Donaldson, 437 F.3d 1226,
1232 (D.C. Cir. 2006). None of Plaintiff’s purported complaints allege racial discrimination in
violation of Title VII, Section 1981, or the DCHRA. Accordingly, his complaints do not rise to
the level of protected activity.
30
Prior to his resignation, Plaintiff claims that he complained to the then-Acting Director of
the Department of Water Measurement and Billing that his Caucasian supervisor was harassing
him and subjecting him to unfair allegations. But, Plaintiff cites to no record evidence that would
support this allegation.4 And, DC Water has no record of any race discrimination complaints
made by Plaintiff during his employment. Def.’s Mot., ECF No. 33, Declaration of Roger Brown
Jr., ¶ 15. Plaintiff’s conclusory statement that he made such a complaint to the then-Acting
Director of the Department of Water Measurement and Billing is insufficient to withstand a
motion for summary judgment. See Mulhern v. Gates, 525 F. Supp. 2d 174, 186 (D.D.C. 2007)
(requiring the non-moving party to submit some affirmative evidence in support of his
allegations). But, even if the Court were to assume that Plaintiff made such a complaint, this
complaint would not rise to the level of protected activity. Plaintiff alleges only that he
complained about harassment and unfair treatment, not that he complained about racial
discrimination, or some other matter protected by anti-discrimination laws. See Logan v. Dep’t of
Veteran Affairs, 404 F. Supp. 2d 72, 77 (D.D.C. 2005) (explaining that the plaintiff’s written
complaint was not protected activity because it did “not include a claim of discrimination based
upon race”).
Plaintiff also claims that he continued complaining about his unfair treatment after he
resigned from his job. But, the only evidence of these complaints to which Plaintiff cites are
various letters to DC Water employees and DC Councilmembers complaining about unfair
treatment and asking for his job back. Pl.’s Opp’n, ECF No. 34, Ex. B, 8-9 (“We had heard that
4
Plaintiff cites to a letter his former attorney wrote to DC Water and to an undated, out-of-
context, written statement by Plaintiff. Neither of these documents contain mention of any
complaint to any DC Water employee prior to Defendant’s resignation. Pl.’s Opp’n, ECF No. 34,
Ex. A, 42-43.
31
[DC Water] wanted to get rid of most of its meter readers; the actions of my supervisors seemed
to confirm this rumor.”), 13-15 (“I was subjected to discipline and negative performance
evaluations based on false and inaccurate information.”), 17-22(“I am writing again in the hope
of receiving your support in my ongoing quest to rescind my job resignation that I submitted due
to unjust pressure.”), 26-28 (“Claimant resigned because of numerous attacks on his ability.”), 29
(“My job performance was unfairly criticized, and I was told that they wanted to get rid of me.”),
30-36 (“The meter readers at [DC Water] came under new supervision, and our new supervisors
seemed more interested in building a record to get rid of us than to ensure that the meters were
read accurately and efficiently.”). These communications all complain that Plaintiff was treated
unfairly and request that he be given back his job. But, the communications, again, do not rise to
the level of protected activity as they to not allege that Plaintiff had been unlawfully
discriminated against on the basis of race or any other protected status.
While not cited as support by Plaintiff, Plaintiff’s deposition mentions other letters that
he claims to have sent to DC Water employees after he resigned. Def.’s Mot., ECF No. 33, Ex.1,
Deposition of Brian Watson, 15. These letters are not in the record. When asked if the letters
indicated that he felt like he was being discriminated against because of his race, Plaintiff
replied, “I don’t know if I started off with race because, even though he wasn’t African
American, I may have put race but I maybe made emphasis to him and his name … I mean,
didn’t say he’s a white man or something like that.” Id. These statements show that even Plaintiff
is not certain whether or not he complained of racial discrimination. Plaintiff’s equipoise
statement does not create a genuine dispute of material fact as to whether or not Plaintiff
complained to Defendant about racial discrimination.
32
In order to receive protection from retaliation, Plaintiff must have engaged in conduct
opposing an employment practice made unlawful by the statute under which he filed his claim of
retaliation. See Broderick, 437 F.3d at 1232. And, none of Plaintiff’s communications, for which
he claims he was retaliated against, so much as mention race or discrimination. Because Plaintiff
never complained that he was unfairly treated or harassed because of his race or some other
protected class, Plaintiff cannot claim protection under the anti-retaliation statutes.
In addition to failing to prove that he engaged in any protected activity through his
various complaints, Plaintiff also fails to show a causal connection between his complaints and
the alleged retaliatory act. Under Title VII, the causal link between the protected activity and the
adverse employment action requires “proof that the desire to retaliate was the but-for cause of
the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352
(2013). But, under Section 1981 and the DCHRA, the plaintiff need only prove that retaliation
was a “motivating factor.” Jones v. D.C. Water & Sewer Auth., 2016 U.S. Dis. LEXIS 19455, at
*19-20 (D.D.C. Feb. 18, 2016). However, this distinction is irrelevant as Plaintiff fails to meet
even the lesser “motivating factor” standard.
Plaintiff presents no evidence that Mr. Brown or Ms. Richardson, the relevant decision
makers, had any knowledge of Plaintiff’s complaints. Because there is no evidence that the
relevant decision makers had knowledge of Plaintiff’s complaints, and Plaintiff points to no other
evidence which would support an inference of a causal relation, it “simply defies logic to charge
[Defendant] with acting in retaliation for an action of which the [relevant decision makers were]
not, in fact, made aware.” Howard Univ. v. Green, 652 A.2d 41, 46 (D.C. 1994).
Accordingly, even if Plaintiff’s generalized complaints of unfair treatment and
harassment constituted protected activity, which the Court finds that they do not, Plaintiff fails to
33
establish a causal connection between his complaints and Defendant’s decision not to interview
or hire him. Accordingly, Plaintiff has not introduced evidence which would allow a reasonable
jury to conclude that Defendant’s legitimate, non-retaliatory reason was actually pretext for
retaliating against Plaintiff due to his various complaints.
Besides the generalized complaints discussed above, Plaintiff asserts another protected
activity for which he alleges he was retaliated against—his participation in a 2013 class action
lawsuit against DC Water alleging racial discrimination. Pl.’s Opp’n, ECF No. 34, 10. Plaintiff’s
participation in a lawsuit alleging racial discrimination is a protected activity under the anti-
retaliation laws. But, Plaintiff fails to provide evidence to suggest that his participation in the
class action played any part in Defendant’s decision not to hire him.
Neither of the relevant decision makers in charge of hiring for the Water Services worker
position was aware that Plaintiff had participated in the class action against DC Water. Mr.
Brown explained that, “[a]t no time, either before or during the hiring process, was I aware …
that [Plaintiff] was among the class membership in the … Class Action.” Def.’s Mot., ECF No.
33, Declaration of Curtis Brown, ¶ 22. Similarly, Ms. Richardson stated that, “[p]rior to the filing
of his Complaint on October 12, 2016, I was not aware that Mr. Watson participated as a class
member in the class action lawsuit.” Id. at Declaration of Giselle Richardson, ¶ 20. Plaintiff
provides no evidence that would cause the Court to doubt these two sworn statements. And, if the
relevant decision makers were not aware that Plaintiff participated in the class action, they could
not have been motivated by Plaintiff’s participation in the protected activity when deciding not to
interview or hire him. See Green, 652 A.2d at 46.
But, even if the relevant decision makers did not have knowledge of Plaintiff’s protected
activity, the Court can impute a causal connection if there was institutional knowledge and the
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adverse personnel action took place shortly after Plaintiff engaged in the protected activity.
Holcomb, 433 F.3d at 903. Here, the class action in which Plaintiff participated settled in 2013,
more than a year before Plaintiff’s non-selection. Def.’s Mot., ECF No. 33, Declaration of
Jennifer Harper, ¶ 4. While Plaintiff may have received his settlement in 2015, closer to the time
of his non-selection, the settlement funds were distributed through a claims administrator in
Florida, not by DC Water. Id. Declaration of Jennifer Harper, ¶ 8. Accordingly, the temporal
proximity between Plaintiff’s protected activity and Defendant’s adverse employment action is
not sufficiently close to infer a causal relationship. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (explaining that the temporal proximity to support an inference of causation
must be “very close,” meaning less than three or four months).
Regardless, it is not clear that temporal proximity alone could support an inference of
causation in this case. When the D.C. Circuit explained that a causal relationship may be inferred
when there is institutional knowledge and the employer’s adverse action took place shortly after
the employee engaged in the protected activity, the court was referring to the requirements for a
prima facie showing of retaliation. Holcomb, 433 F.3d at 903. The court explicitly declined to
address whether proximity alone would suffice once the defendant provided a legitimate, non-
retaliatory reason for the adverse action. Id. at 903-904.
In this case, the Court is no longer concerned with Plaintiff’s prima facie showing of
retaliation as Defendant has supplied a legitimate, non-retaliatory reason for the adverse action.
And the D.C. Circuit has held that “positive evidence beyond mere proximity is required to
defeat the presumption that the [defendant’s] proffered explanations are genuine.” Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). Plaintiff has provided no such positive evidence.
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Accordingly, Plaintiff has not shown that Defendant’s legitimate, non-retaliatory reason for not
hiring him was really pretext for retaliation based on Plaintiff’s participation in the class action.
In evaluating Plaintiff’s retaliation claims, the Court has also considered Plaintiff’s
arguments as to why Defendant’s proffered reason is pretext which were discussed in the section
on racial discrimination. The Court is no more persuaded by Plaintiff’s arguments for pretext in
the retaliation context than it was in the racial discrimination context. For the reasons discussed
in the prior section, Plaintiff’s arguments that he was qualified for the position, that Defendant
failed to follow its own hiring practices, and that Defendant’s proffered reason is unworthy of
credence fail to show that Defendant’s legitimate, non-retaliatory reason for not hiring Plaintiff is
pretextual. See Supra Sec. III.B.2.
In summary as to Plaintiff’s retaliation claims, Defendant has presented a legitimate, non-
retaliatory reason for not hiring Plaintiff—Defendant hired other qualified workers with recent,
relevant work experience. Plaintiff has failed to create a genuine dispute as to whether
Defendant’s proffered reason is pretext. Plaintiff’s generalized complaints of unfairness, with no
mention of discrimination or race, do not constitute protected activity. And, even if they did,
Plaintiff has presented no evidence showing that these generalized complaints are causally
connected to Defendant’s decision not to interview or hire Plaintiff. Additionally, while
Plaintiff’s participation in a class action alleging racial discrimination constitutes protected
activity, Plaintiff has presented no evidence connecting this protected activity to Defendant’s
decision not to interview or hire him. Accordingly, Plaintiff has not shown that Defendant’s
legitimate, non-retaliatory reason is pretext or created an inference of retaliation. Defendant is
entitled to judgment as a matter of law as to Plaintiff’s claims of retaliation.
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V. CONCLUSION
For the reasons discussed above, the Court shall GRANT Defendant’s motion for
summary judgment. Plaintiff has not presented a genuine dispute of material fact as to whether
Defendant discriminated against him on account of his race or as to whether Defendant retaliated
against him for engaging in protected activity. Accordingly, Defendant is entitled to judgment as
a matter of law. An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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