Johnson v. District of Columbia , 947 F. Supp. 2d 123 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PAUL JOHNSON,
Plaintiff,
v. Civil Action No. 07-1033 (JDB)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Paul Johnson has brought this action against defendants District of Columbia,
Mayor Vincent Gray, 1 and the University of the District of Columbia Board of Trustees 2
(collectively “the District”) alleging discrimination on the basis of sex and disability, and
subsequent retaliation, all in violation of federal anti-discrimination laws. The District, i.e., all
three defendants, has filed a motion for summary judgment, and, for the reasons set forth below,
the Court will grant that motion.
1
Former Mayor Adrian Fenty was named in his official capacity as a defendant in Johnson’s original complaint;
however, Mayor Vincent Gray has since replaced Mayor Fenty in the Executive Office of the Mayor. “[F]ederal
law provides for automatic substitution of the new officer when the originally named officer has been replaced.”
Cheney v. U.S. Dist. Court for D.C., 541 U.S. 913, 917 (2004) (citing Fed. R. Civ. P. 25(d)(1); Fed. R. App. P.
43(c)(2)). Nonetheless, because a lawsuit against the Mayor acting in his official capacity is the same as a lawsuit
against the District, the Mayor’s inclusion in this lawsuit is unnecessary because it is duplicative. See e.g., Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (“suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the official’s office[,]” and as such, it is no different from a
suit against the State itself) (internal citations omitted).
2
The District argues that the University of the District of Columbia Board of Trustees “was not and is not Johnson’s
employer,” and therefore should be dismissed from this action. P. & A. in Supp. of Summ. J. at 67-68. Johnson has
not contested this point, which seems correct. However, because the Court is granting the motion for summary
judgment dismissing this action in its entirety, the Court need not reach the question.
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BACKGROUND
Johnson has worked at the University of the District of Columbia (“UDC”) Finance
Office since 1990, when he began work as a Cost Accountant reconciling intra-District grants for
payment. Pl.’s Stmt. of Material Facts [Dkt. 62-4] ¶ 1; Defs.’ Ex. 1 (Johnson Dep.) [Dkt. 59-1]
at 13:9-16, 38:6-19. Johnson is blind in one eye and has insulin-dependent diabetes. Johnson
Dep. at 119:10-14; 127:13-14. Johnson occasionally falls into a brief diabetic sleep at his desk
after lunch, and his eye feels strained if he works long hours into the evening. Id. at 102:7-22,
122:15-22.
In 2000, Alvin Cannon was the UDC Controller and worked directly under CFO Greg
Davis. See Defs.’ Ex. 4 (Dukes Dep.) [Dkt. 59-1] at 27:1-21. According to Johnson, in
December 2000, Cannon asked Johnson to move from his position in the Cost Accounting
department, where he worked as a Cost Accountant under Vivian Brown with a salary of
$44,000, 3 to a position in the General Accounting department. See Johnson Dep. at 38:6-16,
75:2-76:3, 206:9-21; Defs.’ Stmt. of Material Facts ¶ 10; 2d Am. Compl. ¶ 11. Of particular
importance, Johnson alleges that Cannon orally promised him a promotion in job title to “Senior
Accountant” and a pay raise from his current salary to $58,000. 4 See Johnson Dep. at 75:17-
76:6. This alleged agreement was never memorialized in writing. Id. at 207:14-19. Johnson
was subsequently transferred to the General Accounting department, where he was supervised by
Keith Dukes, but Johnson did not receive the pay raise that was allegedly promised. Id. at 203:8-
15; 206: 9-21; Dukes Dep. at 9:14-10:8. According to Brown, when Johnson left her department
3
Johnson originally stated that, “[p]rior to transferring out of his prior position, [Johnson] was earning $44,000.”
Pl.’s 2d Am. Compl. ¶ 11. However, Johnson also testified that he received a pay raise from $48,590 to $50,465,
effective September 1, 2000, which would have been prior to Johnson’s move from Cost Accounting to General
Accounting. See Johnson Dep. at 68:11-22. This raise may have been implemented at a later time and retroactive to
September 1, 2000, but the timing is unclear from the record. See id. at 68:14-15, 69:3-14 (Johnson states that the
pay raise was “retroactive, going back and making adjustments to our steps”).
4
In apparent contradiction to Johnson’s own testimony about this alleged agreement, Johnson also testified that
Cannon “demanded that I take a new position. In fact, I was physically moved to a new position in a new office
space.” Johnson Dep. at 75:2-76:3.
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in December 2000, Johnson’s former position was eliminated because that work “slot”
transferred along with Johnson to General Accounting. Defs.’ Ex. 5 (Brown Dep.) [Dkt 59-1] at
88:13-89:20.
Johnson, on the other hand, believes the Cost Accountant position that he vacated was
filled by Ana Reyes, a female, who was paid $66,000. Johnson Dep. at 207:20-208:12.
However, discovery revealed that Reyes was not affiliated with the UDC Finance Office until
February 2001, when she joined a task force dispatched to the UDC Finance Office by the Office
of Financial Operations and Systems (“OFOS”). See Defs.’ Ex. 6 (Reyes Dep.) [Dkt. 59-1] at
15:4-7, 22:2-14, 54:16-55:8; Defs.’ Ex. 3 (Bryon Dep.) [Dkt. 59-1] at 45:4-17; Dukes Dep. at
58:10-60:1; Pl.’s Ex. 6 (Reyes’ Resume) [Dkt. 64]; Defs.’ Ex. 7 (Reyes’ Resume) [Dkt. 59-1].
At the time, the District of Columbia government was transferring to a new accounting system
called SOAR, and this task force was assigned to help the UDC Finance Office with the
transition. See Reyes Dep. at 9:5-21, 14:10-19:20, 30:9-32:10; Defs.’ Ex. 3 (Byron Dep.)
[Docket Entry 59-1] at 44:8-45:10. The title of Reyes’s position on the task force was “Agency
Group Accountant.” Defs.’ Ex. 7 (Reyes’ Resume) at 3. As a member of the task force, Reyes
was an employee of OFOS, and reported directly to another task force member, LaShawn
Gaines. Reyes Dep. 54:16-55:8; Brown Dep. 95:2-5; Dukes Dep. at 58:16-59:4.
Around October 2001, Ms. Reyes was hired as a permanent employee by the UDC
Finance Office. Reyes Dep. 23:1-6; 26:11-32:18. Reyes recalls that her job title was “Operating
General Ledger Accountant,” also referred to as “Operating Accountant,” and believes her salary
was $70,000. Id. at 23:12-25:1; Defs.’ Ex. 7 (Reyes Resume) at 3. In this role, Reyes continued
to report to Gaines, who had taken on the position of UDC Controller. Reyes Dep. at 41:10-13.
Cannon, the person who allegedly promised Johnson a promotion and raise, was
terminated from his position as Controller when CFO Davis was replaced by an interim CFO,
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Cassandra Alexander. See Dukes Dep. 27:1-21; Pl.’s Ex. 5 (Cabbell Dep.) [Dkt. 70] at 19:23-
20:6. The exact date of Cannon’s departure is unclear from the record, and there is no evidence
that Johnson ever spoke with Cannon about the alleged promise again after December 2000.
However, according to Johnson, on August 2, 2001, he complained to Dukes, Johnson’s
supervisor in General Accounting, about the delay in Johnson’s allegedly promised raise. 2d
Am. Compl. ¶ 15. Nearly a year later, on July 8, 2002, Johnson sent a memorandum to Dukes,
outlining his concerns about not being promoted or paid more. Pl.’s Ex. 12 (Jul. 8, 2002 Mem.)
[Dkt. 75] at 9. Dukes testified that Johnson told him that Cannon had promised Johnson a
promotion and a raise, but Dukes stated that he was never informed of any plan to change
Johnson’s position or salary. Dukes Dep. at 18:6-19:14. On October 21, 2002, an attorney hired
by Johnson wrote a letter on his behalf to Earl Cabbell, 5 a superior in the UDC Finance Office,
regarding “an ongoing pay dispute,” noting that “younger and less experienced personnel have
come into the Finance Office at higher rates of pay for performing basically the same job
functions.” Pl.’s Ex. 2 (Oct. 21, 2002 Letter) [Dkt. 68] at 1-2.
In November 2003, Johnson’s pay was increased from $50,465 to $57,965, retroactively
effective October 1, 2003, as part of a department-wide salary raise. Johnson Dep. at 71:2-21,
72:9-17, 73:8-12. The pay raise was based primarily on years of service. 6 See id.; Defs.’ Ex. 2
(Gaines Dep.) [Dkt. 59-1] at 31:15-18.
Around June 2004, Johnson received a desk audit, which is a process administered by the
Human Resources department at the UDC Finance Office to determine whether an employee’s
5
In his October 21, 2002 letter, Johnson refers to Cabbell as the “Vice President of Finance and Administration,”
but Cabbell testified that “I was not and never was a VP of Finance at no time.” Pl.s’ Ex. 5 (Cabbell Dep.) [Dkt. 70]
at 17:7-8. It is unclear from the record what position Cabbell held within the UDC Finance Office.
6
At around this time in 2003, Reyes was also given a raise that increased her salary from $70,274 to $74,912. See
Defs.’ Ex. 8 (Reyes Pay Harmonization Form) [Dkt. 59-1]. Reyes left the UDC Finance Office shortly thereafter, in
January 2003, and has since been working for another organization. See Reyes Dep. at 34:20-35:10; Defs.’ Ex. 7
(Reyes Resume) at 1-3.
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duties and responsibilities are commensurate with his position, grade, and salary. See Byron
Dep. at 41:13-42:3. The desk audit was performed by Nelson Madison, and involved obtaining
information from Johnson and Dukes about Johnson’s current duties. See Dukes Dep. at 30:12-
32:10; Byron Dep. at 41:13-21. The audit found that Johnson’s pay was commensurate with his
duties, but that his position should have the title of “Senior Accountant.” See Bryon Dep. at
41:13-42:7. As a result of the desk audit, Johnson’s title was formally changed to Senior
Accountant sometime at the end of 2004 or in early 2005. See Bryon Dep. at 42:6-11; Pl.’s Ex. 1
(Jun. 6, 2011 Johnson Aff.) [Dkt. 67] ¶ 29.
Johnson wrote another letter of complaint to Dukes on September 9, 2004, alleging
discrimination based on age, gender, disability, and sexual orientation. Pl.’s Ex. 12 (Sep. 9, 2004
Mem.) [Dkt. 75] at 8. Johnson then alleges that, in “early 2005,” prior to filing a charge with the
Equal Employment Opportunity Commission (“EEOC”), he told Gaines “about the fact that [a
form] [Johnson] received . . . after the Desk Audit . . . changed only [his] title but not [his] pay
and grade,” and Gaines responded that “she would no longer help [Johnson] because [he] had an
attorney and [he] was ‘in legal.’” Pl.’s Ex. 1 (Jun. 6, 2011 Johnson Aff.) ¶ 29; see also 2d Am.
Compl. ¶ 35. Gaines does not recall this conversation. See Gaines Dep. 53:13-21, 55:1-5.
On or around July 11, 2005, Johnson filed a charge of discrimination against the District
with the EEOC, and was given a right to sue letter on March 14, 2007. 2d Am. Compl. ¶ 2. He
then filed this lawsuit within 90 days thereafter. After the Court’s earlier Opinions and Orders
issued in response to a motion to dismiss in 2008 and a motion for reconsideration in 2009, the
following claims remain intact: that Johnson received less pay than similarly situated females
because of his gender, in violation of the Equal Pay Act, 29 U.S.C. § 206(d) and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; that Johnson received a lower salary
compared to similarly situated non-disabled employees because of actual or perceived disability,
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in violation of the Americans with Disability Act, 42 U.S.C. §§ 12101 et seq., and the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.; and that Johnson suffered retaliation when
Gaines allegedly refused to help him with his pay claim after Johnson filed internal complaints
concerning the alleged disparate pay and retained an attorney. The District moved for summary
judgment after the close of discovery.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
“there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of “the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials,” which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1);
see also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the Court must regard the non-movant’s statements as true and
accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than
the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. Moreover,
“[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.” Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the
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non-movant fails to offer “evidence on which the jury could reasonably find for the [non-
movant].” Id. at 252.
Recognizing the potential difficulty for a plaintiff in an employment discrimination or
retaliation action to uncover clear proof of discriminatory or retaliatory intent, the district court
approaches summary judgment in such actions with “special caution.” Aka v. Washington 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). Nevertheless, the plaintiff is not relieved of his obligation 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 will bear the burden of proof at trial on a dispositive issue,
at the summary judgment stage, he bears the burden of production to designate specific facts
showing that there is a genuine dispute requiring trial.” Mason v. Geithner, 811 F. Supp. 2d 128,
175 (D.D.C. 2011) (citing Ricci v. DeStafano, 557 U.S. 557 (2009)). Absent this burden, the
plaintiff could effectively defeat the “central purpose” of the summary judgment device, “which
is to weed out those cases insufficiently meritorious to warrant . . . a jury trial,” simply by
offering conclusory allegations and speculation. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999).
DISCUSSION
The District moves for summary judgment as to all of Johnson’s claims. For the reasons
discussed below, the Court will grant the District’s motion.
I. Unequal wages
The Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d)(1), makes it unlawful for an
employer to “discriminate . . . on the basis of sex by paying wages to employees . . . at a rate less
than the rate at which [the employer] pays wages to employees of the opposite sex . . . for equal
work on jobs the performance of which requires equal skill, effort, and responsibility, and which
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are performed under similar working conditions[.]” The plaintiff has the initial burden to prove
wage disparity and job equality. Musgrove v. District of Columbia, 775 F. Supp. 2d 158, 165
(D.C. Cir. 2011) (citing Goodrich v. Int’l Bhd. of Elec. Workers, AFL-CIO, 815 F.2d 1519, 1523
(D.C. Cir. 1987)); see Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
To establish a prima facie violation of the EPA, a plaintiff must show by a preponderance
of the evidence that (1) he was doing “substantially equal work on a job, the performance of
which required substantially equal skill, effort, and responsibility as jobs held by members of the
opposite sex”; (2) “the job was performed under similar working conditions”; and (3) he was
“paid at a lower wage than members of the opposite sex doing equal work.” Musgrove, 775 F.
Supp. 2d at 165 (internal citations omitted).
Here, Johnson makes the following claims under the EPA: (A) that the District paid him
less than Reyes, who performed equal work in substantially the same position Johnson formerly
held and (B) that the District paid him less than other females performing the same work.
A. Unequal Pay Compared to Reyes
The record does not support Johnson’s assertion that, after he left his Cost Accountant
position, the position was filled by a female (Reyes) who performed the same duties that Johnson
had performed. Instead, the evidence shows that Reyes held completely different positions from
Johnson’s former Cost Accountant position. 7 In fact, despite claiming that Reyes took over his
former position, Johnson testified that he did not know what Reyes’ actual position was, or what
duties and responsibilities she had in addition to any intra-District grant work. See Johnson Dep.
207:20-211:11.
7
As purported evidence of the similarities of the positions, Johnson points to a 1997 letter from the Office of the
CFO of the District of Columbia offering Reyes an accountant position, and a description of an accountant position
in the Office of the D.C. Controller, Office of Finance Management; however, he fails to demonstrate how this
information is in any way relevant to Reyes’ 2001 or 2003 positions at issue here. See Pl.’s Ex. 10 (Jul. 15, 1997
Offer Letter from the Office of the CFO of the District of Columbia to Reyes and an Accountant Position
Description in the Office of the D.C. Controller, Office of Finance Management) [Dkt. 64] at 17, 18.
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As a Cost Accountant, Johnson handled intra-District work, which involved
“reconcil[ing]” the intra-District grants “for payment from other agencies,” booking data into
UDC’s financial management system, and processing invoices for payment. 8 See Johnson Dep.
38:6-39:8. Although Reyes did handle some intra-District grant work, her positions involved
additional and significantly different duties and responsibilities. As an agency group accountant,
Reyes’ responsibilities included assisting with the transfer of the UDC Finance Office’s
accounting system to SOARS, running and analyzing the general ledger, and coordinating efforts
with management concerning accounting system issues. See Reyes Dep. 14:10-19:20; Brown
Dep. 95:6-19, 203:12-205:11. There is no evidence to suggest that Johnson was responsible for
any of these tasks as a Cost Accountant. Later, as an Operating Accountant, Reyes assisted with
monthly and quarterly financial reviews of UDC and provided training and assistance on the
SOARS accounting system, in addition to other duties. See Reyes Dep. 26-11-32:18. Again,
there is no evidence in the record to show that Johnson was responsible for any of these tasks.
Furthermore, Cyril Byron, a former UDC CFO, testified that the Operating Accountant position
is hierarchically above and “more difficult” than the Cost Accountant position. See Bryon Dep.
49:10-50:19.
In regard to Reyes’ involvement in SOARS-related functions, Johnson argues that work
with SOARS is accounting work – implying that all types of accounting work are the same and
therefore Reyes’ SOARS-related work was similar to his work. See Opp’n at 17. However,
whether Reyes performed accounting functions is not at issue; the issue is whether her functions
as an Agency Group Accountant or as an Operating Accountant were “substantially equal work”
requiring “substantially equal skill, effort, and responsibility . . . performed under similar
8
Johnson alleges that he “did more than Intra-District reporting. His work was key to closeout.” Opp’n at 16.
However, he puts forward no evidence in support of these statements, or explains how such a distinction materially
impacts this analysis.
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working conditions.” See Musgrove, 775 F. Supp. 2d at 165. The record demonstrates that both
of Reyes’ positions involved significantly different responsibilities and skills than Johnson’s
former Cost Accountant position. Indeed, in addition to having different job titles and duties,
Johnson and Reyes also reported to different supervisors. 9 Accordingly, it is clear that Johnson
fails to meet his burden of proving job equality, and hence his EPA claim in regard to Reyes
does not survive summary judgment.
B. Unequal Pay Compared to Other Female Employees
Johnson’s other claim under the EPA is that the District paid him less than females who
performed the same work with the same duties and responsibilities. Opp’n at 9, 12, 18. In
support of this assertion, he offers a loss calculation report prepared by an economist at his
request (the “Edelman Report”), which allegedly shows that “males are all lower paid than
females in similar positions.” Id. at 12; Pl.’s Ex. 11 (Edelman Report) [Dkt. 74] at 10. However,
Johnson fails to point to any evidence to support the implication that the female employees listed
in the report were performing “substantially equal work” or that their work “required
substantially equal skill, effort, and responsibility” as his work. See Musgrove, 775 F. Supp. 2d
at 165; see also Smith v. Janey, 664 F. Supp. 2d 1, 13 (D.D.C. 2009) (plaintiff’s EPA claim
failed when it did not include “a description of the skills and effort required for the plaintiff’s
and comparators’ jobs, or [their] attendant responsibilities”). Instead, Johnson asserts, without
any support, that the female workers whose names he provided to the economist for inclusion in
the report: all held positions with the same job description as a Cost Accountant; all “worked in
an office doing accounting work so [] they worked under similar conditions”; and “many” of
them “reported to the same supervisors to whom [Johnson] reported.” Opp’n at 16, 18.
9
Reyes reported to LaShawn Gaines in both her former positions, and Johnson reported to Vivian Brown when he
was a cost accountant and to Keith Dukes when he moved to General Accounting. See Reyes Dep. 41:7-13;
Johnson Dep. 38:6-16, 75:2-76:3, 206:9-21, 209:1-6; Brown Dep. at 85: 17-20; Dukes Dep. at 8:9-9:16.
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As part of the Edelman Report, Johnson submitted a note he wrote to the economist
explaining that the data he provided was from a confidential wage report produced by the
government which Johnson had entered into an excel chart. See Edelman Report at 10. He also
writes in the note that he included “entries [only] … for individuals [who] worked at UDC under
the UDC Controller who report[] to the UDC CFO – my co-workers.” Id. However, there is no
record evidence of these female employees’ titles, job duties, or qualifications. Johnson’s mere
assurance that these female employees are “co-workers” is not enough to demonstrate that these
female employees were proper comparators performing substantially similar work with equal
skill, effort, and responsibility under similar working conditions. The Edelman Report,
therefore, provides no evidence of Johnson’s pay relative to female comparators and hence will
be given no weight by the Court.
Excluding the report leaves only Johnson’s self-serving testimony that he was paid less
than female comparators, which alone is insufficient to survive a motion for summary judgment.
Musgrove, 775 F. Supp. 2d at 170; see also Fields v. Office of Eddie Bernice Johnson, 520 F.
Supp. 2d 101, 105 (D.D.C. 2007) (“Self-serving testimony does not create genuine issues of
material fact.”); Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997) (noting that, on a motion for
summary judgment, courts “examine the facts in the record and reasonable inferences in the light
most favorable to the nonmoving party, but do not accept bare conclusory allegations as fact”)
(internal citations omitted). The Court finds that Johnson’s “non-specific, conclusory
assertion[s] . . . fall [] short of establishing by a preponderance of the evidence that, compared to
his colleagues, the plaintiff was doing substantially equal work on a job, the performance of
which required substantially equal skill, effort, and responsibility.” Smith, 664 F. Supp. 2d at 13(internal quotations omitted). “Such a lack of evidence . . . foredoom[s an] Equal Pay Act
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claim.” Id. (internal citations omitted). Accordingly, the Court will grant the District’s motion
for summary judgment with respect to Johnson’s EPA claim.
II. Sex Discrimination
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,
prohibits employers from discriminating against “any individual” with respect to sex. Johnson
contends that the District violated the antidiscrimination provisions of Title VII when it denied
and delayed his promised pay raise. 10
The Supreme Court established the familiar three-part “burden-shifting approach to
employment discrimination claims in cases where the plaintiff lacks direct evidence of
discrimination.” Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). However, the D.C. Circuit has
clarified that “[i]n a Title VII disparate treatment suit where an employee has suffered an adverse
employment action and an employer has asserted a legitimate, nondiscriminatory 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.” Brady v. Office of the Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008).
Instead, once an adverse employment action is shown and a nondiscriminatory reason is
offered, the plaintiff has the ultimate burden of establishing that the reason provided by the
employer is pretext, and the Court “must determine whether all the evidence taken together is
insufficient to support a reasonable inference of discrimination.” Musgrove, 775 F. Supp. 2d at
169 (internal citations omitted). “All of the evidence” means “any combination of (1) evidence
establishing the plaintiff’s prima facie case; (2) evidence the plaintiff presents to attack the
employer’s proffered explanation for its actions; and (3) any further evidence of discrimination
10
The Court initially dismissed this claim as time-barred; however, the Court reinstated the claim in its July 14,
2009 Order in light of the Ledbetter Fair Pay Act of 2009. See Jul. 14, 2009 Mem. Op. [Dkt. 40].
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that may be available to the plaintiff, such as independent evidence of discriminatory statements
or attitudes on the part of the employer.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006); see also Washington v. Chao, 577 F. Supp. 2d 27, 39 (D.D.C. 2008) (“[I]n all instances
where a defendant has asserted a legitimate, non-discriminatory reason for its conduct, the Court
shall evaluate all of the evidence in the record, including that which would be used to establish a
prima facie case (but not for the purpose of evaluating whether a prima facie case has been
established), to address the ultimate question of discrimination vel non.”).
This Court will, therefore, determine whether an adverse employment action has been
demonstrated and whether a nondiscriminatory explanation has been offered, and, if so, whether
Johnson has produced sufficient evidence for a reasonable jury to find that the District’s asserted
non-discriminatory explanation was mere pretext.
A. Adverse Action
Johnson argues that he suffered an adverse employment action because the District
delayed and denied him a promised salary increase. 11 Opp’n at 14. An adverse employment
action is “a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
change in benefits.” Douglas v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009) (internal citations
11
Johnson also alleges that he suffered an adverse employment action in the form of a diminution in job duties,
exclusion of closeout assignments, and denial of incentive awards. See Opp’n at 13. The District responds that
these claims were dismissed as time-barred in the Court’s August 21, 2008 Memorandum Opinion and Order, see
Aug. 21, 2008 Mem. Op. [Dkt. 26] at 11, 17 n.7, and, furthermore, that Johnson’s claim of denial of incentive
awards was only pled as part of his retaliation claim, not as part of his gender discrimination claim. See Defs.’
Points & Auth. at 7-8. The District is correct that these claims were dismissed when the Court dismissed the Title
VII claim based on untimeliness; however, the Court reinstated the Title VII claim in its July 14, 2009 Order
reflecting the Lilly Ledbetter Fair Pay Act’s changes to the time restrictions on Title VII claims. See Jul. 14, 2009
Mem. Op. [Dkt. 40] (citing Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (Jan. 29, 2009)).
Nonetheless, as noted in the Court’s August 21, 2008 Memorandum Opinion, Johnson’s alleged diminution in duties
and exclusion of closeout assignments “were changes in assignments without reduction in pay … [which] would be
dismissed as well because there were no materially adverse consequences that amounted to objectively tangible
harm.” See Aug. 21, 2008 Mem. Op. [Dkt. 26] at 17 n.7; see also Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C.
Cir. 2002) (“[P]urely subjective injuries, such as dissatisfaction with a reassignment … do not constitute adverse
action.”) (internal citations omitted).
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omitted). The employee must “experience[ ] materially adverse consequences affecting the
terms, conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1131 (D.C. Cir. 2002); see Griffin v. Wash. Convention Ctr.,142 F.3d 1308, 1310 (D.C. Cir.
1998) (termination is an adverse employment action); Cones v. Shalala,199 F.3d 512, 521 (D.C.
Cir. 2000) (refusal to allow an employee to compete for a job could be actionable because it was
“tantamount to refusing to promote him,” and failure to promote can be an adverse employment
action); Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (“[F]ormal criticism or poor
performance evaluations are not [] adverse actions . . . if they did not affect the employee's grade
or salary.”). “[N]ot everything that makes an employee unhappy is an actionable adverse
action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001).
The D.C. Circuit has not clearly ruled on whether the denial or delay of an allegedly
promised salary increase is an adverse employment action. 12 Generally, “hiring, firing, failing to
promote, [and] reassignment with significantly different responsibilities . . . all relate to one's
work responsibilities and position, and . . . it is obvious that each significantly changes an
employee's status.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009). However, “[f]or
employment actions that do not obviously result in a significant change in employment status …
such as giving a poor performance evaluation [or] reassigning office space and equipment[,] …
an employee must go the further step of demonstrating how the decision nonetheless caused such
an objectively tangible harm.” Id. at 553. “For example, a benefit such as a bonus – or, by
logical extension, a pay raise – is objectively tangible because it has a ‘direct, measurable, and
12
Johnson argues that “denials of salary increases or raises” are adverse employment actions by citing to an Eight
Circuit case. See Opp’n at 13. But that case actually contradicts Johnson’s argument. See Turner v. Gonzales, 421
F.3d 688, 696 (8th Cir. 2005) (“Similarly, a “decision not to raise . . . salary [is] not an adverse employment action
[where] . . . salary [is] not decreased or otherwise diminished in any way.”) (citing Tademe v. St. Cloud State Univ.,
328 F.3d 982, 992 (8th Cir. 2003)).
-14-
immediate effect’ upon the employee's compensation.” Id. (citing Russell v. Principi, 257 F.3d
815, 818-19 (D.C. Cir. 2001)). If a pay raise is considered objectively tangible, then by
extension the denial or delay of a pay raise would be an objectively tangible harm.
Consequently, Johnson’s claim that the District delayed and denied providing him with
an allegedly promised pay raise arguably is an adverse employment action, if the claim is
properly supported by the record. However, the Court need not make this determination here
because Johnson is unable to clear the additional hurdle of demonstrating that the District’s
asserted non-discriminatory explanation is pretextual.
B. Pretext
The District argues that Johnson did not receive a pay raise because his work did not
merit one. 13 In support of its position, the District offers evidence of Johnson’s desk audit,
which found that he was being paid commensurate with his duties and responsibilities.
Furthermore, the District contends, if there is any pay disparity between Johnson and female
employees, it results from “defendant’s seniority system, legitimate merit system, system which
measures earnings by quantity or quality of production and/or factors other than sex[.]” See Am.
Ans.; P. & A. in Supp. of Summ. J. at 2. In support of this explanation, the District puts forward
Reyes’ work history and qualifications as reasons for her higher salary. See P. & A. in Supp. of
Summ. J. at 46-48.
Because the District has asserted a legitimate reason for its denial or delay of Johnson’s
raise, the Court must now determine whether he has “produced sufficient evidence for a
13
The District also argues that the Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01, et seq. is
the exclusive remedy for Johnson’s pay raise claim, and that this Court lacks jurisdiction over the instant complaint
because Johnson has not alleged that he exhausted his administrative remedies, and “if [he] were to now file an
appeal with the OEA, it would be dismissed as untimely[.]” P. & A. in Supp. of Summ. J. at 21. However, the
CMPA does not apply to allegations of discrimination. See Robinson v. District of Columbia, 748 A.2d 409, 411
(D.C. 2000) (noting that “an employee seeking relief for discrimination must pursue the remedies provided under
the D.C. Human Rights Act rather than the CMPA”). Here, the D.C. Human Rights Act claims were dismissed, and
the remaining claims of discrimination under the EPA, Title VII, the ADA, and the Rehabilitation Act are properly
before this Court.
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reasonable jury to find [this] reason was not the actual reason and that the employer intentionally
discriminated against the plaintiff.” Adeyemi v. D.C., 525 F.3d 1222, 1226 (D.C. Cir. 2008)
(citing Brady, 520 F.3d at 493-95). The plaintiff bears the burden of showing that a defendant’s
proffered non-discriminatory reason for the challenged action is a pretext. Musgrove, 775 F.
Supp. 2d at 170 (internal citations omitted). A plaintiff can carry this burden by showing that a
non-discriminatory reason offered by a defendant is false, Montgomery v. Chao, 546 F.3d 703,
707 (D.C. Cir. 2008), or otherwise presenting enough evidence to allow a reasonable trier of fact
to conclude that the employer’s proffered explanation is pretext, Wicks v. Am. Transmission Co.
LLC, 701 F. Supp. 2d 38, 45 (D.D.C. 2010) (citing Desmond v. Mukasey, 530 F.3d 944, 962
(D.C. Cir. 2008)). Employees can also try to cast doubt on an employer’s asserted reason by
demonstrating the employer’s failure to follow established procedures or criteria. Brady, 520
F.3d at 496 n.3. “If the employer’s stated belief is reasonable in light of the evidence, however,
there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the
underlying facts.” Id. at 495 (internal citations omitted).
Johnson does not argue that the desk audit of his duties was defective. 14 Instead, he
maintains that he was wrongfully denied a higher salary despite his good work record. Opp’n at
4. But it was the desk audit that determined that there was no basis for increasing Johnson’s
14
He does argue that the desk audit was unnecessary “because CFO Alexander had already increased his job grade.”
Opp’n at 6. In purported support of this argument, Johnson offers several documents. The first is a September 2001
memorandum from CFO Cassandra Alexander stating that Johnson is reclassified as a senior accountant. See Pl.’s
Ex. 10 (Sep. 17, 2001 Alexander Memorandum) [Dkt. 64] at 5. This document is followed by two others within
Johnson’s Exhibit 10, but it is unclear if they are connected to each other. One document is a human resources form
signed by Dukes and Alexander that does not include the name of the employee for whom the form is meant and
lists two different Senior Accountant positions with different grades. See Pl.’s Ex. 10 (Request for Personnel Action
Form) [Dkt. 64] at 6. The other is a position description of what appears to be a Senior Accountant position for the
Metropolitan Police Department, not the UDC Finance Office. See Pl.’s Ex. 10 (Position Description) [Dkt. 64] at
7. It is unclear how these documents support Johnson’s belief that a desk audit was unnecessary when none of the
documents appear to address his salary, which is the crux of his complaints. Moreover, Johnson does not provide
any evidence, through these documents or otherwise, to support an inference that the outcome of the desk audit was
faulty or that it was tainted by discriminatory animus.
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salary or grade, and there is no evidence that the circumstances surrounding the desk audit were
questionable or tainted with discriminatory intent.
Johnson also tries to cast doubt on the District’s non-discriminatory explanation by
claiming that “Reyes was put in her position at UDC without a posting of the position.” See
Pl.’s Stmt. of Material Facts, ¶ 29. But Johnson presents insufficient evidence to demonstrate
that there were “established procedures or criteria” that the District should have followed by
posting available positions. He offers sections of the D.C. Code and Municipal Regulations that
provide for “open competition[,]” which “involve[es] positive recruitment and . . . procedures
designed to achieve maximum objectivity, reliability, and validity” for available positions;
however, these regulations do not require that positions be publicly posted. Pl.’s Sur Reply at 3-
4 (citing D.C. Code §§1-601.02, 1-608.01 (2013); D.C. Mun. Regs. tit. 6, §802 (2013)).
Therefore, Johnson has not shown that there was a departure from “established procedures”
because publicly posting jobs does not appear to be required, and he provides no evidence that
the District failed to foster “open competition.” Rather, the record indicates that the District’s
hiring of Reyes to fill the Operating Accountant position satisfied “open competition” because
she applied and interviewed twice for the position before being selected. See Reyes Dep. 22:2-
22:10. And, even assuming that the District had departed from an established procedure by not
publicly posting positions, no reasonable jury could find that the alleged departure establishes
pretext for sex discrimination in light of Johnson’s own assertion that Max Fano, a male, was
hired into one of these positions that was not publicly posted. 15 See Opp’n at 20.
15
Although an “employer’s failure to follow established procedures or criteria” may undermine the credibility of its
asserted non-discriminatory reasons, Francis v. District of Columbia, 731 F. Supp. 2d 56, 72 (D.D.C. 2010) (quoting
Brady, 520 F.3d at 495 n.3), “[a]n employer's failure ‘to follow its own regulations and procedures, alone, may not
be sufficient to support’ the conclusion that its explanation for the challenged employment action is pretextual,”
Fischbach v. D.C. Dep’t of Corrs., 86 F.3d 1180, 1183 (quoting Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir.
1982)).
-17-
Johnson also claims that the District’s allegedly merit-based pay system was a pretext for
discrimination because Reyes was paid more than he was. Opp’n 18-19. The Court finds no
merit in this argument because Reyes and Johnson did not even hold the same positions, see
supra Section I, and because the record does not demonstrate that Johnson was significantly
more qualified than Reyes. As an initial note, “Title VII is not a statutory invitation for the
judiciary to micromanage all personnel decisions.” Barbour v. Browner, 181 F.3d 1342, 1346
(D.C. Cir. 1999). Therefore, although a plaintiff may demonstrate evidence of a pretext where
there is a gap between the relative qualifications of the plaintiff and the individual who was paid
more, “[t]his evidence is only probative . . . if the gap is so wide and inexplicable that it
inherently gives rise to an inference of discrimination.” Bolden v. Clinton, 847 F. Supp. 2d 28,
36 (D.D.C. 2012) (internal quotations omitted); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294
(D.C. Cir. 1998) (en banc) (discrimination can be inferred if fact finder can conclude that
plaintiff was “significantly better qualified”); Stewart v. Ashcroft, 352 F.3d 422, 429-30 (D.C.
Cir. 2003) (there must be evidence of “stark superiority of credentials” because “differences in
qualifications” that merely indicate a “close call” do not get [plaintiff] beyond summary
judgment”).
Hence, Johnson must show not merely that he was more qualified than Reyes, but that he
was significantly better qualified. He has not done so. The District offers Reyes’ credentials and
job history to demonstrate that she was at least as qualified as he was. In particular, at the time
that Reyes worked as a member of the OFOS task force, she had a bachelor’s degree in business
administration with the requisite hours of accounting and over fourteen years of prior accounting
experience, as well as relevant experience in the specialized area of the SOARS accounting
system. See P. & A. in Supp. of Summ. J. at 9-12, 26-27. By comparison, Johnson had an
associate’s degree in science with some accounting coursework and about twenty years of
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accounting experience, but did not have specialized SOAR experience. See Pl.’s Ex. 10
(Johnson’s Resume) at 4; Johnson Dep. at 12:18-19, 13: 9-16. Bearing in mind that in order to
demonstrate evidence of a pretext, a gap in qualifications must be so “wide and inexplicable that
it inherently gives rise to an inference of discrimination,” Bolden, 847 F. Supp. 2d at 36, the
Court finds that the record does not reflect that Johnson was significantly better qualified than
Reyes. Moreover, there is nothing in the record that contradicts the District’s explanation that
Reyes was paid more because she “attained a higher level of education,” “had greater breadth
and depth of accounting and financial experience,” and “possessed crucial expertise in SOAR at
a time when such expertise was vitally needed.” See P. & A. in Supp. of Summ. J. at 27.
Lastly, Johnson argues that the District’s explanation that factors other than sex were the
cause of any pay disparity is pretextual because he received less money than female employees
according to his loss calculation report. See Opp’n at 18; Edelman Report. However, although
“statistics may be used in Title VII cases to illustrate a history of discrimination or to show that
the defendant’s professed reasons for acting are merely a subterfuge,” the mere presentation of
the various salaries of certain male and female employees is insufficient, without more, to
support an inference of discrimination. Bolden, 847 F. Supp. 2d at 35; see also Cook v.
Boorstin, 763 F.2d 1462, 1468 (D.C. Cir. 1985). Rather, a plaintiff “must demonstrate that all of
the relevant aspects of their employment situation are nearly identical.” Adair v. Solis, 742 F.
Supp. 2d 40, 53 n.12 (D.D.C. 2012). As previously discussed, Johnson fails to do this.
Accordingly, Johnson failed to produce evidence sufficient to satisfy his “burden of showing that
a reasonable juror could conclude” that the District’s alleged delay and denial of a salary
increase was because of his gender, see Aka, 156 F.3d at 1290, and his claims of gender
discrimination under Title VII cannot survive summary judgment.
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III. Disability Discrimination
The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and the
Rehabilitation Act, 29 U.S.C. § 794(a), provide disabled individuals with essentially identical
protections against employment discrimination. Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir.
1999). Given the coextensive scope of their coverage, claims of employment discrimination
under these statutes generally can be scrutinized together, see Barnes v. Gorman, 536 U.S. 181,
184-85 (2002), and this Court will do so here.
To establish a prima face violation of the ADA or the Rehabilitation Act, a plaintiff must
show by a preponderance of the evidence that he: (1) is disabled within the meaning of the
statute; (2) was qualified for the position with or without a reasonable accommodation; and (3)
suffered an adverse employment action because of his disability. Duncan v. Wash. Metro. Area
Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001) (en banc) (internal citations omitted).
However, similar to Title VII claims, if there is an adverse employment action and the defendant
has proffered legitimate, nondiscriminatory reasons for its actions, the Court should bypass the
prima facie case and examine whether the employee has produced sufficient evidence for a
reasonable jury to find that the employer’s proffered reasons were pretextual. Kersey v. Wash.
Metro. Area Transit Auth., 586 F.3d 13, 16-17 (D.C. Cir. 2009).
Johnson argues that he was discriminated against based on his actual or perceived
disabilities (blindness in one eye and insulin-dependent diabetes) when the District delayed and
denied providing him with an allegedly promised pay raise. 16 As discussed previously, the
District’s delay and denial of the allegedly promised pay raise arguably rises to the level of an
adverse employment action. But, as was true for Johnson’s Title VII claim, the Court need not
16
The additional adverse employment actions alleged under Title VII that were dismissed by the Court, see supra
Section II(A) n.11, were also alleged under the ADA and the Rehabilitation Act. However, for the same reason that
those actions were dismissed by the Court in the context of Johnson’s Title VII claims, they will be here. See id.
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resolve this issue here because Johnson is unable to establish that the District’s proffered non-
discriminatory reason is pretext.
The District urges, as it did in response to the Title VII claim, that Johnson was not given
a pay raise because his work did not merit it, as demonstrated by the desk audit. The Court has
already determined that there is no evidentiary basis to call into question the desk audit’s
accuracy or suggest that it was tainted with discriminatory intent.
The District further contends that, if there is any pay disparity between Johnson and other
non-disabled employees, such a disparity would result from “defendant’s seniority system,
legitimate merit system, system which measures earnings by quantity or quality of production
and/or factors other than … disability.” See Am. Ans.; P. & A. in Supp. of Summ. J. at 2. In
response, Johnson offers several arguments in an attempt to show a causal connection between
the delay and denial of the pay raise and his disability. His arguments center on his belief that
Gaines could have given him a pay raise, 17 but chose not to do so because she discriminated
against him because of his disability.
As putative proof of animus, Johnson first alleges that Gaines inquired about his habit of
sleeping at his desk, something that apparently results from his diabetes and typically happens
after lunch. Opp’n at 22; Johnson Dep. at 102:7-22. Gaines testified that she “noticed that
[Johnson] was falling asleep quite a bit in the afternoons[,]” so she asked his supervisor, Dukes,
if he knew that Johnson “was falling asleep on the job.” Gaines Dep. at 27:1-7. Dukes then told
Gaines that Johnson “was on medication.” Id. at 27:8-9. A supervisor asking questions about an
17
Specifically, Johnson alleges that, in February 2003, “Gaines refused to [sign] the Personnel Action changing
[Johnson] to a Grade 6 and increasing his salary.” Pl.’s Stmt. of Material Facts, ¶ 49. However, the documentary
evidence does not support this argument. The personnel action form, which purports to request a grade change for
Johnson, appears to be only partially completed, contains only the typed names of Alexander and Cabbell in a box
that calls for the requestors’ signatures, and bears no indication of its validity. See Pl.’s Ex. 12 (Request for
Personnel Action Form) [Dkt. 75] at 4-5. Also, there are no signatures on the form, and when Cabbell was shown
the form, he testified that he did not recall seeing it before or understand “in what capacity [his] name is typed in
there.” Cabbell Dep. 18:1-19:6. Furthermore, Johnson had the opportunity to depose Gaines, but offers no excerpt
of that testimony, let alone testimony regarding this alleged personal action form.
-21-
employee who is sleeping at work is not, on its face, a suspicious action, and Johnson provides
no evidence of discriminatory animus behind the inquiry, or any causal connection between the
inquiry and the decision not to raise his pay. He even admits that merely inquiring into his
drowsiness is not proof of discrimination – he acknowledged that a former supervisor who
inquired about his sleeping habit likely did so “because it’s sort of embarrassing to a person, you
know, if [an employee is] sitting up there asleep, the president might walk through, you know,
and then, you know, [the supervisor] might be or [the employee] might be or anybody might be –
writ[ten] up for it.” Johnson Dep. 104:14-21. Likewise, there are legitimate reasons for Gaines
to have asked about Johnson’s habit of falling asleep at his desk that simply have nothing to do
with discrimination.
Johnson also argues that Gaines complained that he was a slow worker, and this
complaint was indicative of discriminatory animus because Johnson asserts that any slowness on
his part “was caused by his eyesight [because he is blind in one eye].” Opp’n at 14, 15.
However, even after considering all possible inferences that can be drawn from this alleged
complaint in a light most favorable to Johnson, there is nothing about it that demonstrates
discrimination based on disability or any connection between it and the decision not to raise
Johnson’s pay. Gaines’s alleged complaint merely reflects the justifiable concerns of a
supervisor in the workplace.
In short, neither of the incidents described by Johnson rebuts the District’s explanation
that it delayed or denied his raise for the simple reason that it was not merited, as demonstrated
by the desk audit. Accordingly, there is insufficient evidence in the record to call into question
the District’s proffered non-discriminatory reason for not raising Johnson’s pay, and no
reasonable juror could conclude that the District acted because of Johnson’s diabetes or partial
blindness. The ADA and Rehabilitation Act claims, then, cannot survive summary judgment.
-22-
VI. Retaliation
Title VII, the ADA, and the Rehabilitation Act prohibit an employer from retaliating
against an employee who files a discrimination charge or engages in certain other protected
conduct. See Ginger v. District of Columbia, 527 F.3d 1340, 1346 (D.C. Cir. 2008); Smith v.
District of Columbia, 430 F.3d 450, 454-55 (D.C. Cir. 2005); Duncan v. Wash. Metro. Area
Transit Auth., 214 F.R.D. 43, 49 (D.D.C. 2005). Here, Johnson claims that he suffered
retaliation when Gaines, the Controller at UDC and one of his supervisors, allegedly refused to
assist him with his pay raise matter. 18 Specifically, he alleges that, at some point in 2005 prior to
his filing of an EEOC charge, Johnson told Gaines “about the fact that [a form] [he] received . . .
after the Desk Audit . . . changed only [his] title but not [his] pay and grade,” to which Gaines
allegedly responded that “she would no longer help [Johnson] because [he] had an attorney and
[he] was ‘in legal.’” 19 Pl.’s Ex. 1 (Jun. 6, 2011 Johnson Aff.) ¶ 29.
To establish a claim for retaliation, a plaintiff must demonstrate that: (1) he engaged in a
statutorily protected activity; (2) the employer took adverse personnel action; and (3) a causal
connection existed between the two. Morgan v. Fed. Home Loan Mortg. Corp, 328 F.3d 647,
651 (D.C. Cir. 2003) (stating the legal standard for retaliation claim under Title VII); Jones v.
Wash. Metro. Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000) (stating that the legal
standard for retaliation claim under the ADA is the same as that for claims under Title VII);
Norden v. Samper, 503 F. Supp. 2d 130, 156 (D.D.C. 2007) (stating that the legal standard for
retaliation claim under the Rehabilitation Act is the same as that for claims under Title VII).
Similar to a discrimination claim, when a retaliation claim is “based upon circumstantial
18
The parties agree that Johnson engaged in protected activities when he sent the 2004 letter to Dukes and when he
retained a lawyer to assist him with his claims. See P. & A. in Supp. of Summ. J. at 61; 2d Am. Compl ¶ 25.
19
Johnson also asserts that he suffered retaliation in the form of a diminution in job duties, exclusion of closeout
assignments, and denial of incentive awards. Opp’n at 13, 20. However, these claims were previously dismissed as
time-barred, see Aug. 21, 2008 Mem. Op. at 11, 17 n.7, and were not reinstated, see Jul. 14, 2009 Mem. Op. at 4.
-23-
evidence, we analyze it under the burden-shifting framework set out in McDonnell Douglas.”
Kersey, 586 F.3d at 16-17, 17 n.2. However, the D.C. Circuit has explained that the principles
that led it in Brady to call McDonnell Douglas a “sideshow” in the discrimination context,
“apply equally to retaliation claims.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009)
(quoting Brady, 520 F.3d at 494) (internal quotation marks omitted). Therefore, when there is an
adverse action and “defendant proffers a [] nonretaliatory rationale … the plaintiff must show
that a reasonable jury could conclude from all of the evidence” that defendant’s rationale is a
pretext. Kersey, 586 F.3d at 16-17. This Court will, therefore, begin its analysis with an
examination of whether there was an adverse action.
In the retaliation context, the term “adverse action” “encompass[es] a broader sweep of
actions than those in a pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198
n. 4 (D.C. Cir. 2008). Thus, retaliation claims are “not limited to discriminatory actions that
affect the terms and conditions of employment” and may extend to harms that are not workplace-
related or employment-related. Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 64, 68 (2006)). Nonetheless, “the employer’s actions must be harmful to the point that
they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 57; see also Pardo-Kroneman v. Donovan, 601 F.3d
599, 607 (D.C. Cir. 2010).
Johnson contends that he suffered an adverse action because Gaines refused to assist him
with his pay raise matter when he complained to her that a form from his desk audit did not
provide him with a raise. 20 Pl.’s Ex. 1 (Jun. 6, 2011 Johnson Aff.) ¶ 29. The District responds
20
In his opposition, Johnson adds a new claim that Gaines initiated the desk audit as a form of retaliatory adverse
action against him because “he had complained,” but he also states, in the same paragraph, that “Gaines did not
initiate a desk audit on her own initiative.” Opp’n at 6. Thus, it appears that Johnson is, on one hand, contending
that Gaines initiated a desk audit to retaliate against him for his complaints, but on the other hand, arguing that
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that Gaines’s “alleged refusal to assist Johnson was a single, isolated, unadorned comment that
appears less a threat than an expression of exasperation.” P. & A. in Supp. of Summ. J. at 63.
The District analogizes the statement to one made in Gaujacq v. EDF, Inc., 601 F.3d 565 (D.C.
Cir. 2010), where the Court found that a threatening verbal statement alone “is not necessarily a
materially adverse action; employer’s words and other actions must be considered in context to
determine whether they would dissuade a reasonable worker from filing a claim and thus result
in actionable retaliation.” 601 F.3d at 578 (citing Burlington, 548 U.S. at 57).
In Gaujacq, the alleged adverse action was a superior’s statement to an employee that
“[y]our career is dead” at the company “if you file the claim” of discrimination. Id. The Court
decided that a reasonable worker in the employee’s position would not have taken the
supervisor’s “brief, fleeting, and unadorned verbal statement as an act or threat of retaliation,”
where company officials “went out of their way to accommodate [the employee’s] desire to stay
in the United States, despite her increasing insubordination and refusal to consider any future
employment decision that did not meet her precise demands.” Id. The District argues here that,
similarly, Gaines’s statement cannot be considered adverse where the District had responded to
Johnson’s pay concerns by requesting the desk audit, yet he “continued to raise the matter,
angrily and at inappropriate times,” and the District had tried to offer him positions of
advancement, but he refused to consider them. P. & A. in Supp. of Summ. J. at 44, 62.
Although there are some similarities between Gaujacq and this case, the Court finds that
because Gaines’s statement was not a direct threat it does not rise to the level of the statement at
issue in Gaujacq. On its face, Gaines’s statement does not represent an attempt to intimidate
Johnson or interfere with his discrimination claim; more fairly, it was just a statement that she
was unable to help him. Interpreted most favorably to Johnson, the potential adverse action here
Gaines did not initiate the audit on her own motivation. Regardless, this claim is time-barred because the desk audit
occurred in 2004. See Aug. 21, 2008 Mem. Op. at 11; Jul. 14, 2009 Mem. Op. at 4.
-25-
is Gaines’s refusal to assist him with his pay issue. However, the record shows Johnson was
paid commensurate with his duties and, as a result, Gaines’s refusal to help him with his claim
for a higher salary did not eliminate or otherwise affect some benefit or opportunity to which
Johnson was entitled. It cannot be an actionable adverse action for a supervisor to decline to
assist an employee with a claim that the employer has already rejected and that the employee has
acquired legal help to explore.
Simply put, the alleged adverse action here rests on Johnson’s unsubstantiated personal
belief, supported only by his testimony and self-serving affidavit, that he should be paid more
than the desk audit determined he should be paid. This is insufficient. See Sykes v. Napolitano,
710 F. Supp. 2d 133, 144 (D.D.C. 2010) (an employee’s “subjective belief … is insufficient to
demonstrate that the [challenged employment action] was an adverse action”). To resist
summary judgment, Johnson must put forward competent evidence in support of his claims, and
he has failed to discharge that burden here.
Previously, the Court observed that a refusal to assist in a pay raise matter could be an
adverse employment action. See Aug. 21, 2008 Mem. Op. [Dkt. 26] at 22. Despite extensive
discovery, Johnson has offered no evidence to demonstrate that Gaines’s refusal resulted in any
cognizable harm to him. Therefore, Johnson has failed to show that a reasonable employee
would be dissuaded from making or supporting a charge of discrimination under these
circumstances. Johnson has not presented evidence that would allow a reasonable fact finder to
conclude that Gaines’s statement constituted an adverse action. His retaliation claim, then, does
not survive summary judgment.
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CONCLUSION
For the reasons set forth above, the District’s motion for summary judgment will be
granted. A separate Order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: June 5, 2013
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