Dorriz v. District of Columbia Department of Transportation , 133 F. Supp. 3d 186 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ZAHRA DORRIZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-297 (TSC)
)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Zahra Dorriz brings this retaliation action against the District of
Columbia Department of Transportation pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights Act
(“DCHRA”), D.C. CODE § 2–1401.01 et seq. Presently before the court is Defendant’s
Motion for Summary Judgment. (ECF No. 24). For the reasons set forth below, the
court will grant the motion in part and deny the motion in part.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the record shows there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. D.C., 298 F.3d 989, 991 (D.C.
Cir. 2002). “A party asserting that a fact cannot be or is genuinely disputed must support the
Page 1 of 23
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, . . . affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). In determining whether a genuine issue of material fact exists, the court must view
all facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970).
II. FIRST EEOC CHARGE: DEMOTION CLAIM
A. Facts
Plaintiff, who is Iranian, began her employment as an engineer with the District
of Columbia Department of Transportation (“DDOT”) in October 2003 as a Project
Manager. (See Pls. Ex. 25, Dorriz Dep. 35). In that position she supervised one or two
employees. (Dorriz Dep. 36). At the time she was hired, her immediate supervisor was
Said Cherifi. (Dorriz Dep. 38). Five years later, she was promoted to Deputy Program
Manager within the Infrastructure Project Management Administration (“IMPA”)
division of DDOT. (Id. 41). Her immediate supervisor in the IMPA division was Ali
Shakeri, who is also Iranian, and there was another Iranian supervisor, Adeesh Nafici,
at DDOT during this time. (Dorriz Dep. 41; Pls. Ex. 23, Cherifi Dep. 132-33). In her
new position, Dorriz was responsible for design and construction projects, while
supervising up to 30 employees. (Dorriz Dep. 43-44).
Sometime later, a terminated Nigerian co-worker, Sylvester Okpala, filed a
discrimination complaint against DDOT alleging that he had been discriminated against
Page 2 of 23
by Iranian supervisors, including Dorriz’s supervisor, Shakeri. See Okpala v. D.C., 09-
cv-1948-RLW (D.D.C.). Okpala also alleged that Dorriz received preferential treatment
from the Iranian supervisors. (Id., Compl. ¶¶ 9-10). Around this same time, a rumor
circulated that these supervisors had used their influence to get Dorriz promoted and
that she was having a sexual relationship with Nafici. (Cherifi Dep. 132-34, 136).
In the fall of 2009, Michael Jelen (who is Caucasian) conducted Dorriz’s
performance evaluation. (Pls. Ex. 2, Jelen Aff. ¶ 3; Pls. Ex. 3). He rated Dorriz’s
performance at four on a five-point scale, but before the evaluation was finalized he
was transferred to another division at DDOT and Maduabuch Udeh, who is Nigerian,
became Dorriz’s supervisor. (Jelen Aff. ¶ 3; Cherifi Dep. 42). According to Dorriz,
Udeh was friends with Okpala, the Nigerian former co-worker who filed the
discrimination complaint. (Dorriz Dep. 98-99). 1
Around this same time, Jelen became aware that Dorriz’s performance evaluation had
been altered and her rating lowered. (Jelen Aff. ¶ 4). He responded by complaining about the
matter in an email to Operations Manager Stephanie Dunbar, who is African-American. (Jelen
Aff. ¶ 5; Pls. Exs. 4-5). After failing to receive a satisfactory response, Jelen sent a series of
emails to Dunbar, some of which were copied to Udeh. (Jelen Aff. ¶¶ 5-9; Pls. Exs. 4-5). In
1
Plaintiff’s brief states that Okapala’s termination “did not sit well with Mr. Udeh.” (See
Pls. Br. at 2; SOMF ¶ 6; Pls. Ex. 24, Udeh Dep. 62). A review of Udeh’s deposition testimony
indicates that Plaintiff’s counsel’s description is simply misleading. When asked if he was upset
by Okpala’s termination, Mr. Udeh quite plainly responded: “Just like any employee, if they lose
their job, you know, I feel for them.” (Udeh Dep. 62). This is a far cry from the picture painted
by Dorriz’s counsel. The court notes that the record contains other instances where counsel for
the Plaintiff characterized the evidence in a misleading manner. Plaintiff’s counsel is hereby
admonished to refrain from future mischaracterizations or face sanctions.
Page 3 of 23
those emails, Jelen not only complained about the altered evaluation, but also complained
because he had not been consulted prior to the change, and explained his reasons for rating
Dorriz as he had. (Jelen Aff. ¶¶ 5-9; Pls. Exs. 4-5).
Dorriz also complained, first to Dunbar, who allegedly dismissed the matter and instead
asked Dorriz if she knew where Nafici was now working. (Dorriz Dep. 88-89). When Dorriz
responded that she did not know, Dunbar reportedly said “C’mon, how wouldn’t you know? You
guys had [a] relationship.” (Id.). Dorriz was shocked by the response. (Id.).
At Dunbar’s direction, Dorriz subsequently discussed her concerns about the
performance evaluation with Udeh, who denied making the alterations. (Id.). Dorriz believes
Udeh or Dunbar made the alterations; she claims Jelen told her he was unable to access the
online performance evaluation form after he left the department and, only Udeh and Dunbar had
access. (Dorriz Dep. 88-89). Jelen testified that he believes Dunbar made the alterations or
ordered someone to make them because of what he perceived as Dunbar’s discriminatory animus
toward Dorriz. (Jelen Aff. ¶ 13). 2 Apparently, no-one at DDOT admitted to making the
alterations.
Subsequently, in January 2010, Dorriz spoke with an internal EEO counselor –although
the precise nature of the discussion is not entirely clear because the record contains conflicting
evidence. (See Pls. Ex. 7, DCHRA Determination Letter at p. 4; Pls. Br. at 5; Pls. Ex. 10 at p. 2).
2
Jelen claims to have observed Dunbar “treat Dorriz unfairly and in a discriminatory manner.”
(Jelen Aff. ¶ 11). He also claims to have “personally witnessed Ms. Dunbar regularly mock Ms.
Dorriz’ [sic] aptitude, appearance, and dress to parties including Ms. Dorriz’ [sic] superiors,
peers, and direct reports in an attempt to undermine Ms. Dorriz.” (Jelen Aff. ¶ 12). Jelen does
not provide any further details about Dunbar’s alleged discriminatory conduct.
Page 4 of 23
In any event, on January 26, 2010, shortly after the conversation with the EEO counselor, the
IMPA division was restructured and Dorriz claims she was demoted from Deputy Program
Manager to Structural Engineer by her supervisor Udeh. (See Pls. Ex. 8; Cherifi Dep. 59-61).
Less than one month later, on February 18, Dorriz was involuntarily transferred to the role of
Project Manager for the District of Columbia Street Car Project, where she had no supervisory
authority. (Dorriz Dep. 142-43). Dorriz notes that “Project Manager” was the same title she had
previously held when she began her employment with DDOT five years earlier. Moreover,
Dorriz claims the Street Car Project was underfunded and she was forced to reapply for her
position periodically. (Dorriz Dep. 84-85).
In response to these events, on February 24, 2010, Dorriz completed an EEO
Intake Questionnaire in which she complained about the altered performance evaluation
and her “plann[ed]” demotion. (Pls. Ex. 9). 3 On the form, Dorriz alleged that Dunbar,
Udeh, Cherifi and others had engaged in the challenged conduct for discriminatory and
retaliatory reasons. (Id.).
Several months later, on April 5, 2010, Dorriz filed her first EEOC Charge of
Discrimination, alleging disparate treatment and retaliation. (Pls. Ex. 10). In that
charge, Dorriz contended that Udeh began creating a hostile environment for her
because he had been friends with Okpala. (Id.). Specifically, she complained about the
3
Dorriz’s discussion of her “planned demotion” on the EEO questionnaire is not entirely clear,
given her allegations that she had already been demoted. At any rate, this apparent inconsistency
is not material to resolution of DDOT’s motion.
Page 5 of 23
demotion, reassignment to temporary duty, and about Dunbar’s comment regarding the
alleged relationship between Dorriz and former DDOT employee Nafici. (Id.).
Dorriz remained on the Street Car Project for approximately one year, until
February 2011, when she returned to the IPMA division. (Dorriz Dep. 85, 39). Later,
during the summer of that same year, Dorriz unsuccessfully sought a promotion and
ultimately filed a second EEOC Charge on March 1, 2012 over the failed promotion.
(See Pls. Ex. 1; ECF No. 39, Notice ¶ 4). 4
B. Analysis
Although Plaintiff alleged in Count I of her complaint that the demotion was
retaliatory, DDOT does not seek summary judgment for the demotion claim. (See ECF
No. 7, Amend. Compl ¶ 51). Consequently, Plaintiff contends the court should deny
summary judgment on this claim. 5 In its reply, DDOT argues that Plaintiff’s demotion
claim is not properly before this court because Plaintiff raised the claim in her first
EEOC Charge, but did not raise it in the second EEOC Charge, which is the subject of
this suit.
In the absence of a response by Dorriz, the court issued a Minute Order on
September 16, 2015 directing Dorriz to file a Notice with the court identifying which
EEOC Charge(s) formed the basis of the present lawsuit. In response, Plaintiff
4
The court addresses the promotion claims more fully in Section III.
5
In addition to the demotion claim, DDOT did not seek summary judgment on the claim
surrounding the altered performance evaluation. Plaintiff did not raise the issue of the altered
performance evaluation in her response to DDOT’s motion.
Page 6 of 23
indicated that the second charge, dated March 1, 2012, is the only charge at issue.
(ECF No. 39, Notice ¶ 4). Because the March 1, 2012 charge does not contain any
allegations regarding the demotion or the allegedly altered performance evaluation,
those claims are not properly before this court. Accordingly, the court will grant
summary judgment on any claims relating to those events.
II. SECOND EEOC CHARGE: PREFORMANCE APPRAISAL,
MICROMANANGING AND PROMOTION CLAIMS
A. The Evidence
Upon Dorriz’s transfer back to the IPMA division, in February 2010, Program
Manager Paul Hoffman became her immediate supervisor. 6 (See Dorriz Dep. 85, 39;
Pls. Ex. 21, Khalid Dep. 105). Hoffman’s supervisor was Muhammed Khalid. (See
Defs. Ex. 6, Khalid Dep. 102-3).
After the transfer, Dorriz applied for a promotion to the position of Program
Manager. 7 The job description specified that there were three vacancies and one of the
“Conditions of Employment” was that each successful applicant “[m]ust possess and
maintain current licensure as a professional engineer. . . . Professional Engineer
License required.” (Pls. Ex. 1 at pp. 1, 3).
6
The parties do not identify Mr. Hoffman’s race.
7
While the job description lists the job title as “Supervisory Civil Engineer,” the parties do not
dispute that Dorriz applied for the job and the position would have been a promotion. (See Pls.
Ex. 1).
Page 7 of 23
Dorriz was ranked “highly qualified” for the position, along with eleven other
candidates, including the successful candidates: Wendy Gagnier, Dawit Muluneh, and
Faisal Hameed. (Pls. Ex. 11). Dorriz appears to believe that the deck was stacked
against her from the very beginning of the interview process. First, Dorriz claims Dunbar
intentionally scheduled Dorriz’s interview for days when she was not scheduled to be in the
office. (Dorriz Dep. 71). Next, Dorriz points out that two of the three interviewers, Cherifi and
Dunbar, had been named in Dorriz’s prior EEO complaints. (See Khalid Dep. 54; Pls.
Exs. 9-10). The third person on the interview panel, Khalid, was her upper-level
supervisor. (Khalid Dep. 54, 23-24).
The panel conducted Dorriz’s interview on or around August 10, 2011. (Pls. Ex.
22, Dunbar Dep. 54). In his affidavit, Cherifi stated he was not aware Dorriz had
previously filed an EEO complaint against DDOT at the time of the interview. (Pls. Ex.
17, Cherifi Aff. ¶ 8). He later contradicted this statement, during his deposition, when
he testified that Dunbar had mentioned Dorriz’s EEO complaint to him the year before
the interview. (Cherifi Dep. 35-36, 68). In Cherifi’s view, because of Dorriz’s prior
EEO complaint, Dunbar’s presence on the panel constituted a conflict of interest.
(Cherifi Dep. 68). Indeed, according to Cherifi, Dunbar apparently recognized this
conflict and explained prior to the interview that she intended to recuse herself from
“being part of the scoring.” (Cherifi Dep. 68).
With respect to the potential conflict of interest posed by her service on the
interview panel, Dunbar testified that she “had no reason not to sit on the panel.”
(Dunbar Dep. 80). When asked, hypothetically, whether she would select persons to
Page 8 of 23
serve on an interview panel that had been the subject of allegations by one of the
applicants, she responded:
A. Probably not.
Q. And why not?
A. Well, it depends on - - I don’t’ know. I don’t know. I don’t know.
Q. Do you believe that it was a conflict of interest for you to sit on Ms. Dorriz’s
interview panel?
A. Knowing what I know now, yes. But then, no.
(Dunbar Dep. 80).
When asked whether she had been aware of Dorriz’s EEO complaint at the time
of the interview, Dunbar’s testimony is troubling when considered along with other
evidence in the record. Initially, Dunbar appeared to indicate that she was indeed aware
of the discrimination charge at the time of the interview. In an affidavit dated June 21,
2010, that specifically discussed Dorriz’s discrimination allegations, Dunbar stated that
“I did not make the statement that she alleged in her Charge of Discrimination.”
(Dunbar Aff. ¶ 5). Dorriz points out that this statement indicates Dunbar was aware of
the EEO complaints at the time of the interview because the 2010 affidavit was
prepared prior to the 2011 interview. In contrast, during her deposition—taken after
this lawsuit was filed –Dunbar testified it “is possible. . . . I could have been” aware of
Dorriz’s charge at the time of the interview. (Dunbar Dep. 79). When questioned about
the apparent conflict between the deposition and the affidavit, Dunbar indicated she had
not drafted the affidavit and, therefore, she did not understand the statement in the
Page 9 of 23
affidavit regarding the discrimination charge. (Dunbar Dep. 72-79). Yet, Dunbar
admits she read and signed the affidavit under oath. (Id.).
According to Dorriz, not only was Dunbar’s presence on the panel problematic,
but Cherifi’s presence was as well. Cherifi, however, testified that he did not believe
his presence on the interview panel constituted a conflict because he claimed that, at the
time of the interview, he was not aware he had been named in Dorriz’s prior
discrimination complaints. (Cherifi Dep. 98). He claims that if he had known Dorriz
had named him in a prior complaint, he would have recused himself. (Id.).
While there is no indication that Khalid was named in the EEO complaints
Dorriz made prior to the interview, there appears to be conflicting evidence about
whether he was aware of the complaints at the time of the interview. In his affidavit,
Khalid explicitly stated he was not aware of Dorriz’s EEO complaint against DDOT at
the time of the interview. (Khalid Aff. ¶ 8). Yet, in his deposition, he subsequently
appears to admit he was aware of at least one prior EEO complaint Dorriz had made.
(Khalid Dep. 24-28). 8
Dorriz claims that, during her interview, the panel asked her what she considered
irrelevant questions, such as “you look like you are nervous and tired.” (Dorriz Dep.
137, 69). She also alleges that Khalid repeatedly cut her off when she attempted to
answer questions. (Dorriz Dep. 69).
8
Despite testimony to the contrary, even in its reply brief DDOT continues to assert that
there is no evidence Khalid or Cherifi knew about Dorriz’s EEO complaints at the time
of the interview. (Amended Reply Br. at 10).
Page 10 of 23
Notwithstanding Dunbar’s alleged statement that she would not be “part of the
scoring,” she did have some involvement. Each panelist had a form that listed
interview questions and provided space to write notes after each question. Dunbar
admits that on Cherifi’s form for Dorriz, Dunbar wrote in the numerical scores for each
question in the left margin and she wrote the total score in the upper right hand corner.
(Dunbar Dep. 58-59). Dunbar’s same notations appear on Khalid’s form. (See Pls. Exs.
12-13; see Defs. Ex. 6, Khalid Dep. 107-09). Moreover, Khalid testified that the “right
way to do it” would have been for him to write the numbers himself, but the numbers on
his score sheet were “very closely related” to the numbers he would have given had he
done the scoring himself. (Khalid Dep. 113).
Dunbar’s involvement in the scoring did not stop there. Although she testified
that she played no role in determining who was selected, the record also contains an
interview form for Dorriz that lists Dunbar’s name as the interviewer. (Pls. Ex. 14;
Dunbar Dep. 40, 54). On that form, Dunbar wrote notes after each question and, like
the forms completed by the other panelists, Dunbar’s form contains scores listed in the
left column for each question and a total score listed in the upper right hand corner.
(See Pls. Ex. 14). Dorriz points out that the scores of the three interviewers were the
same or within one point of each other: Cherifi rated Dorriz 54 and both Khalid and
Dunbar rated Dorriz 53. (See Pls. Exs. 12-14). Dunbar, however, denies modifying the
actual scores provided by the other interviewers. (Dunbar Dep. 62).
Dorriz alleges that in addition to not selecting her for the Program Manager
position, DDOT officials also retaliated against her by micromanaging her work.
Page 11 of 23
Specifically, she alleges that she supervised few if any employees, she was not invited
to meetings, and her involvement in projects was minimized. (Dorriz Dep. 142-45).
Dorriz also claims that Hoffman, her immediate supervisor, told her that Khalid had
ordered Hoffman to lower Dorriz’s performance evaluation because she was suing
DDOT. (Dorriz Dep. 147).
B. Analysis
To establish a prima facie case for retaliation in violation of Title VII, 42 U.S.C.
§ 2000e-3(a), 9 a plaintiff must present evidence that: (1) she engaged in activity protected by
Title VII; (2) the employer took a “materially adverse” employment action against her; and (3)
the adverse action was causally related to the exercise of her rights. 10 Port. v. Shah, 606 F.3d
809, 817-18 (D.C. Cir. 2010); Holcomb v. Powell, 433 F.3d 889, 901-2 (D.C. Cir. 2006)
(citations omitted).
9
“The legal standard for discrimination under the DCHRA is substantively the same as under
Title VII.” Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 73, 84 (D.D.C. 2002) (alterations
omitted) (citing Knight v. Georgetown Univ., 725 A.2d 472, 478 n. 5 (D.C. 1999)); Daka v.
Breiner, 711 A.2d 86, 92 (D.C. 1998).
10
DDOT contends that Dorriz cannot meet the causation requirement with respect to her
promotion claim because she has no circumstantial evidence linking her protected activity with
the alleged retaliatory conduct, other than the fact that her non-selection occurred sometime after
her protected activity. Noting that sixteen months passed between Dorriz’s April 2010 EEO
charge and her August 2011 interview, DDOT argues that she fails to establish temporal
proximity and, therefore, fails to establish causation.
DDOT’s temporal proximity argument is unpersuasive because Dorriz alleges ongoing
retaliation in the form of demotions and reduced work responsibility that allegedly started well
before she filed the April 2010 charge and continued through the time she filed the present
lawsuit. (See Amend. Compl. ¶ 44; Dorriz Dep. 142-43).
Page 12 of 23
DDOT raises three arguments in support of its motion for summary judgment on
the claims associated with Dorriz’s second EEOC Charge, in which she alleged that
DDOT retaliated against her when it failed to select her for the promotion and when it
micromanaged her work. First, DDOT argues that Dorriz has not established a prima
facie case for discrimination because the alleged retaliatory conduct did not deter her
from engaging in protected activity. Second, the agency contends that Dorriz has no
evidence to support her allegations that Khalid, who was not her direct supervisor, was
behind the alleged micromanaging and lowered performance appraisal. DDOT argues
that even if she did have such evidence, the challenged conduct did not constitute
“materially” adverse employment actions. Finally, DDOT asserts that Dorriz cannot
overcome the agency’s legitimate non-discriminatory reasons for failing to select her
for the Program Manager position.
1. Adverse Employment Action Arguments
DDOT first argues that Dorriz has not presented evidence that she suffered any
adverse action as a result of the alleged retaliation:
A plaintiff must demonstrate that the alleged adverse employment action
“might well have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (internal quotation marks and citations omitted). Here,
because Plaintiff twice testified that she would not have been dissuaded by
any of the conduct she alleges, (Dorriz Tr. 132:10‐16; 139:3 – 140:3; SOF
¶ 2), she cannot demonstrate that she suffered any adverse retaliatory action.
(Defs. Br. at p. 5). DDOT’s argument is disingenuous.
Page 13 of 23
In Burlington North & Sante Fe Railway Company v. White, 548 U.S. 53, 57
(2006), the case upon which DDOT relies, the Supreme Court was faced with the
question of “how harmful . . . adverse actions” must be in order to fall within the scope
of Title VII’s anti-retaliation provision. Faced with a split among the Circuits, the Supreme
Court held that Title VII’s anti-retaliation provision “covers those (and only those) employer
actions that would have been materially adverse to a reasonable employee or job applicant.” Id.
at 57, 59-60. In other words, a plaintiff bringing a Title VII retaliation claim “must show that a
reasonable employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 68 (citations and internal quotations omitted) (emphasis added).
In adopting this approach, the Court noted that “[t]he antiretaliation provision seeks to prevent
employer interference with unfettered access to Title VII’s remedial mechanisms. It does so by
prohibiting employer actions that are likely to deter victims of discrimination from complaining
to the EEOC, the courts, and their employers.” Id. at 68 (citations and internal quotations
omitted) (emphasis added).
Thus, the Burlington North standard simply looks at whether a reasonable person under
the circumstances would likely have been deterred from engaging in protected activity, not
whether that person was actually deterred from doing so. Accordingly, it is nonsensical to argue,
as DDOT essentially does, that an employee who is deterred from engaging in protected activity
has a remedy, but an undeterred employee like Dorriz is left in the lurch. DDOT, apparently
realizing its argument was illogical, refrained from championing this argument in its reply brief.
Page 14 of 23
(See ECF No. 38, Amended Reply Br. at 7-8). 11 Instead, the agency changed course and argued
that any lowered performance evaluation or micromanaging in this case did not constitute
“material” adverse employment actions. With respect to the lowered performance evaluation,
DDOT points out that in the District of Columbia Circuit, a lowered performance evaluation is
“materially adverse” if it negatively impacts the plaintiff’s “position, grade level, salary or
promotion opportunities.” (Defs. Amended Reply at 12). Indeed, post-Burlington cases in this
Circuit have repeatedly rejected retaliation claims centered around performance evaluations that
were not attached to some type of “objectively tangible harm.” See, e.g., Wiley v. Glassman, 511
F.3d 151, 161 (D.C. Cir. 2007) (plaintiff radio announcer failed to produce evidence of
“objectively tangible harm” where employer reduced her on-air time from 17 minutes to 13
minutes); Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. 2009) (finding that an evaluation which
was lowered from “outstanding” to “excellent” was not materially adverse because plaintiff’s
“bare, conclusory allegation that she was denied promotional and bonus opportunities . . . d[id]
not discharge her burden to show the evaluations were ‘attached to financial harms.’”) (citations
omitted); Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008) (“Baloch did not produce
evidence showing that the 2003 negative performance evaluation could affect his position, grade
level, salary, or promotion opportunities”) (citations omitted).
11
DDOT also appears to have abandoned its argument that Dorriz has not produced evidence of
retaliation by Khalid. In its opening brief, DDOT argued that it was undisputed that Khalid was
not Dorriz’s first-line supervisor and, therefore, he could not have micromanaged her. (Defs. Br.
at pp. 7-8). Similarly, the agency argued that Khalid never evaluated Dorriz because his role was
to review Hoffman’s evaluation. (Id.). The agency did not address this argument again in its
reply brief – and rightly so. There was nothing about being Dorriz’s upper-level manager that
would have precluded Khalid from participating in or influencing the conduct about which she
complains. (See Defs. Ex. 6, Khalid Dep. 103-5).
Page 15 of 23
Here, Dorriz does not allege that she suffered tangible harm as a consequence of the
performance evaluation allegedly lowered by Hoffman at Khalid’s direction. Indeed, she failed
to make any substantive arguments on this issue. This case is, therefore, unlike Porter v. Shah,
606 F.3d 809, 818 (D.C. Cir. 2010), where the plaintiff’s supervisor placed a written interim
evaluation of unacceptable performance in plaintiff’s personnel file, in violation of company
policy, and thereby subjected plaintiff to removal, reduction in grade, withholding of pay
increases and reassignment. Accordingly, on the present record, the court finds that Dorriz’s
lowered performance evaluation under Hoffman and Khalid did not constitute a “materially
adverse” employment action. Thus, she has not made out a prima facie for discrimination on this
claim.
Despite the court’s finding, at this juncture DDOT is not entitled to summary judgment
on this issue because the agency did not raise this argument in its primary brief and, generally,
courts decline to consider arguments raised for the first time in a reply brief. See Am. Wildlands
v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (“We need not consider this argument
because plaintiffs . . . raised it for the first time in their reply [brief].”) (citations omitted).
Applying this rule is particularly appropriate here because DDOT made the issue of whether
Dorriz satisfied the “adverse employment” action requirement an essential part of its opening
brief. Thus, the court will hold in abeyance its ruling on this issue and allow Dorriz an
opportunity to respond.
DDOT argues that, as with the lowered performance evaluation issue, any
micromanaging by Dorriz’s supervisors was not actionable. According to DDOT, Dorriz’s
allegations are vague and constitute unsubstantiated opinion evidence. DDOT also argues that
Page 16 of 23
Dorriz’s complaints are simply the result of hurt feelings and workplace frustrations that do not
constitute “materially” adverse employment actions. (Defs. Amended. Reply at 14-15).
DDOT’s argument is without merit because Dorriz’s testimony is not vague and she does
far more than complain about mere workplace frustrations. Dorriz specifically testified that,
upon her return to the IPMA division, she supervised at most one or two employees. (Dorriz
Dep. 143-44). Moreover, such supervision merely involved approving the employees’
timesheets, rather than giving them work assignments. (Dorriz Dep. 143-44). Dorriz also claims
she was pushed aside and relived of all of decision-making involvement, and was not invited to
participate in “important” meetings, such as those involving the selection process for consultants.
(Dorriz Dep. 144-45). She alleges that because of these actions, not only has she been
“prevent[ed] from . . . advancing in [her] career,” but she has also been pushed “back maybe 20
years.” (Dorriz Dep. 145). She attributes this retaliatory conduct to “DDOT management,”
including “Khalid and [Hoffman] the chief engineer.” (Dorriz Dep. 144-45). Dorriz’s testimony
regarding the actions of her managers and the loss of her supervisory duties is sufficient to meet
the “materiality” standard. As the D.C. Circuit has recognized, “reassignment with significantly
different responsibilities . . . generally indicates an adverse action.” Forkkio v. Powell, 306 F.3d
1127, 1131 (D.C. Cir. 2002) (citation omitted); Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.
Cir. 2013). Likewise, exclusion from important meetings can constitute a materially adverse
employment action. See Allen v. Napolitano, 774 F. Supp. 2d 186, 199-200 (D.D.C. 2011).
In sum, DDOT’s argument that there is no genuine issue of material fact with regard to
whether Dorriz suffered an adverse employment action is unavailing, with the exception of the
argument that the lowered performance evaluation was not sufficiently material to be actionable.
Page 17 of 23
The court will reserve its ruling on that issue alone in order to allow Plaintiff to file a sur-reply
brief. Defendant’s motion will be denied on Dorriz’s micromanaging claim.
2. Promotion Claim
DDOT argues that it is entitled to summary judgment on Dorriz’s promotion
claim because she cannot overcome the agency’s proffered reasons for her non-
selection. DDOT offers Cherifi’s affidavit, in which he stated that Dorriz did not have
the skills or experience to excel in the position, and that her responses to interview
questions merited low scores. (Cherifi Aff. ¶¶ 5-6). Cherifi also stated that DDOT
determined the successful candidates were “more” qualified. (Cherifi Aff. ¶ 6).
Similarly, Khalid stated in his affidavit that Dorriz performed poorly during the
interview and DDOT determined the successful candidates were “more” qualified.
(Khalid Aff. ¶¶ 5-7).
In a Title VII action, once an
employer asserts a legitimate, nondiscriminatory reason for an adverse employment
action, the district court must conduct one central inquiry in considering an
employer’s motion for summary judgment or judgment as a matter of law: whether
the plaintiff produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was [mere pretext for unlawful
discrimination].
Adeyemi v. D.C., 525 F.3d 1222, 1226 (D.C. Cir. 2008) (citation omitted); see Primas v. D.C.,
719 F.3d 693, 697 (D.C. Cir. 2013). Sufficient evidence of unlawful discrimination can include
“evidence the plaintiff presents to attack the employer’s proffered explanation for its actions,”
including “changes and inconsistencies in the stated reasons for the adverse action [or] the
Page 18 of 23
employer’s failure to follow established procedures or criteria.” Evans v. Sebelius, 716 F.3d 617,
620 (D.C. Cir. 2013) (citations and internal quotations omitted).
Here, as described above, Dorriz has adduced ample evidence that DDOT failed
to follow “established criteria,” as well as evidence regarding “changes and
inconsistences” in DDOT’s reasons for her non-selection. See Sebelius, 716 F.3d at 620.
Most significantly, despite the statements in Cherifi and Khalid’s affidavits, Dorriz has
produced evidence that Hameed, the selected candidate, was not the “most” qualified.
Even though the job description specified that successful applicants “[m]ust possess and
maintain current licensure as a professional engineer. . . . Professional Engineer
License required,” DDOT does not dispute that Hameed had no such license and only
eight years of professional experience. (See Dorriz Dep. 72-73, 174; Khalid Dep. 157;
Pls. Ex. 1 at pp. 2-3). In contrast, Dorriz testified that she does have a professional
engineering license and has thirty-two years of experience. (Dorriz Dep. 72-73).
Perhaps realizing the problem this evidence presents, DDOT has now taken a
different approach. Specifically, in its brief, DDOT now defends its hiring decision by
asserting that the three selectees were “uniquely” qualified for the position. (Defs. Br.
at p. 7). During his deposition, Khalid attempted to explain DDOT’s deviation from the
job description requirements. When asked what made Hameed “stand out as an
applicant,” Khalid testified that:
One of those three positions was really a person who would be the
DDOT’s NEPA, National Environmental Protection [sic] Act expert,
which is a critical position, as is [sic] required by legislation that
every state DDOT has a person who would clear the NEPA
documentations for the city or the state.
Page 19 of 23
That is a - - that is a core function that has to be done. And
Dr. Faisal Hameed has - - is an industry expert in that act, and he has
actually developed manuals and standards for the District of
Columbia or the DDOT. And he is a national expert. He not only
does it for us, but he also presents his expertise in this area.
So as I mentioned, one of those positions required - - it was
for that office, it would be the coordinator for the environment
documentations, and he stood out from all of our applicants in that
area. He would just – just – he was just absolutely the right fit for
that position.
And that position was not a hardcore engineering, it was more
of an environmental reviews and coordination. Of course there’s
some engineering element is [sic] there, but that position does not
require actually review and approve designs. So therefore, he just
was – was the best candidate for that particular position.
(Khalid Dep. 160 – 61).
Khalid’s testimony is undermined by the testimony of his fellow panelist,
Cherifi. Despite Khalid’s testimony that the position did not really require an engineering
license, Cherifi testified that he did not know if the successful applicants for the position had
professional engineering licenses, but he would not have recommended hiring an applicant for
the position who did not have such a license “[b]ecause it’s mandatory.” (Cherifi Dep. 108)
(emphasis added).
In light of this evidence –from DDOT’s own witnesses and documents – a reasonable
jury could find that the agency’s decision to ignore the engineering license requirement was a
pretext for retaliation against Dorriz, especially where, as here, the employer instead claims after
the fact to have relied on specialized skills that were not even mentioned in the job description.
See Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1109 (8th Cir. 1994) (reasonable
minds could find evidence of pretext where company claimed that the younger employee, who
Page 20 of 23
essentially replaced plaintiff, was more valuable to the company because his computer skills
were “critical,” but plaintiff demonstrated, inter alia, that the need for computer skills was not
mentioned in the new job description and the personnel director had never been informed of this
need).
Not only has Dorriz produced evidence that DDOT changed its justification for the hiring
decision and that the agency failed to follow its published hiring criteria, she also points to a
substantial amount of additional circumstantial evidence that DDOT’s reasons for her non-
selection may have been pretextual. Specifically, Dorriz points to: (1) conflicting evidence about
the extent to which the panelists knew of Dorriz’s prior EEO complaints at the time of her
interview; (2) the apparent conflict of interest created by Dunbar’s presence on the panel, given
the allegations Dorriz had made against her in the prior EEO complaints; (3) Dunbar’s
involvement in the scoring of Dorriz, despite testimony that Dunbar had pledged to refrain from
becoming involved; and (4) the similarities in the panelists’ scores for Dorriz. Viewing this
record in its entirety, a reasonable fact-finder could infer something “fishy” about the selection
process for the Program Manager position Dorriz unsuccessfully sought. See Salazar v.
Washington Metro. Transit Auth., 401 F.3d 504, 509 (D.C. Cir. 2005) (“jury could infer
something ‘fishy’” from selection process where, inter alia, there were questions about the
composition of the interview panel and the weight attributed to scoring the applicants).
III. DCHRA CLAIMS
Finally, DDOT argues that Dorriz’s DCHRA claims are not properly before this
court because she elected an administrative remedy before the District of Columbia
Page 21 of 23
Office of Human Rights (DCOHR). “[T]o preserve the right to bring the same action in
court, withdrawal of an administrative complaint must occur prior to the DCOHR’s disposition.”
Adams v. D.C., 793 F. Supp. 2d 392, 397 (D.D.C. 2011) (alterations omitted and internal
quotations omitted) (citing Anderson v. U.S. Safe Deposit Co., 552 A.2d 859, 860 (D.C. 1989).
In other words, Dorriz cannot bring her DCHRA claims in this court unless “she withdr[e]w her
administrative complaint prior to receiving a notice of a probable cause determination.” Adams,
793 F. Supp. 2d at 397.
Consistent with this argument, in its statement of undisputed facts, DDOT
alleged that the DCOHR issued a “no probable cause” determination on Dorriz’s
administrative complaint before she brought this suit. (Defs. SOF ¶ 7). Plaintiff failed
to respond to DDOT’s factual assertion in her response, nor did she address DDOT’s
argument. Therefore, the court will treat the matter as conceded and grant summary
judgment on the DCHRA claims asserted in Count II of the Amended Complaint. See
LCvR 7(b); McGinnis v. D.C., 65 F. Supp. 3d 203, 224 (D.D.C. 2014); Lewis v. United States,
Civ. A. No. 90-0991, 1990 WL 179930, at * 2 (D.D.C. Oct. 29, 1990).
IV. CONCLUSION
For the reasons set forth above, the court will grant DDOT’s motion for summary
judgment with respect to the claims raised in Dorriz’s first EEOC Charge. The court
will hold in abeyance a ruling on Dorriz’s retaliation claim over the performance
evaluation lowered by Hoffman at the direction of Khalid. The court will grant summary
Page 22 of 23
judgment on Count II of the complaint which asserts retaliation claims under the DCHRA.
Date: September 30, 2015
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 23 of 23