Davis v. Joseph J. Magnolia, Inc. ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
BLYDEN A. DAVIS, )
)
Plaintiff, )
)
v. ) Civ. Action No. 08-290 (EGS)
)
JOSEPH J. MAGNOLIA, INC., )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Blyden A. Davis, an African-American male, has
filed discrimination and retaliation claims against defendant
Joseph J. Magnolia, Inc., his former employer, 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. Pending before the
Court is defendant’s motion for summary judgment on all claims.
Upon consideration of the motion, the response and reply
thereto, the applicable law, and the entire record, and for the
reasons stated herein, the Court hereby GRANTS IN PART AND
DENIES IN PART defendant’s motion for summary judgment.
I. BACKGROUND
Plaintiff was hired by defendant in April 2005 as a heavy
equipment operator working at construction job sites. Soon
after being hired, plaintiff received two or three oral warnings
in May 2005 concerning his inability to operate heavy equipment,
followed by a written warning issued on June 2, 2005. The
written warning, issued by plaintiff’s supervisor at the time,
Fred Wedding, stated that plaintiff “was hired as a heavy
equipment operator with 10 years of previous experience.
However, over the course of a month, Mr. Davis has proven to be
uncapable [sic] of operating heavy machinery at this site.”
Def.’s Ex. 8. Plaintiff signed the warning and indicated he
“agree[d] with the employer’s statement.” Def.’s Ex. 8.
Another written warning dated June 8, 2005 issued by John Kulp,
the Director of Site Utilities, similarly stated that plaintiff
“is unable to perform the task of operating equipment as needed”
and that plaintiff would be transferred to a different crew at a
reduced rate of pay. Def.’s Ex. 9. The June 8 warning also
stated that “if [plaintiff’s] actions do not i[m]prove, with new
crew we may let him go.” Def.’s Ex. 9.
Plaintiff was assigned to a new crew, this one supervised
by Foreman Jeff Forsythe. Plaintiff alleges that while working
on this crew, in July 2005, a fellow employee informed him that
Forsythe had referred to plaintiff as a “nigger.” Compl. ¶ 13;
Def.’s Ex. 10. Plaintiff made an internal complaint regarding
Forsythe’s allegedly discriminatory conduct on October 17, 2005.
Def’s Ex. 10. Defendant conducted an investigation and
2
interviewed plaintiff, Forsythe, and other members of the crew.
Following the investigation, Forsythe received a written warning
on November 19, 2005. Def.’s Ex. 12. The warning indicates a
“violation of company policy/procedures” and “unsatisfactory
behavior towards employees or customers.” Def.’s Ex. 12.
On November 2, 2005, while still working on Forsythe’s
crew, plaintiff received another written warning. This warning
stated that plaintiff had been insubordinate and violated
company policies by failing to take a required training class.
Specifically, the warning stated that plaintiff “did not want to
attend traffic flagging safety class. Jeff Forsythe had to
ask[] several times before [plaintiff] attended training class.
[Plaintiff] would not take the written test after the class was
completed. Mark Tavenner [defendant’s Safety Director] was
teaching the class & has documented this issue. This is final
warning before discharge.” Def.’s Ex. 14. Plaintiff concedes
that he received this warning, but he asserts that the warning
was undeserved because - although he did not take the written
test in November 2005 - he did attend the class itself.
Plaintiff also argues that the November 2005 warning was
undeserved because he had taken the traffic flagging safety
course on another occasion. In December 2005, after plaintiff
had made the internal complaint regarding Forsythe and after the
3
incident related to the flagging course, plaintiff was
transferred to a third crew, supervised by Foreman George
Shegogue.
On January 6, 2006, plaintiff filed a complaint with the
District of Columbia Office of Human Rights (“DCOHR”), alleging
discrimination on the basis of race, as well as retaliation.
Def.’s Ex. 15.
Two more incidents occurred before plaintiff was
terminated. On January 30, 2006, plaintiff received a written
warning for failing to report an accident which caused damage to
equipment. Def.’s Ex. 17.1 Subsequently on April 25, 2006,
plaintiff was involved in an altercation at a job site. Though
the parties disagree on the particulars, it is undisputed that
plaintiff was involved in some kind of disagreement at a job
site with one of defendant’s customers, the general contractor
at the job site. According to plaintiff, after an employee of
the general contractor repeatedly did not move a truck out of
plaintiff’s way, plaintiff became “agitated” or “upset” and
asked the general contractor’s employee to move the truck before
1
At the time the warning was issued, plaintiff again signed
the warning and indicated that he agreed with the employer’s
statement. Def.’s Ex. 17. Plaintiff now asserts, however, that
the warning was undeserved because defendant’s policies only
require that accidents must be reported, not that all employees
involved report each accident. Because another employee
reported the incident, plaintiff asserts that there was no
violation of company policy. Pl.’s Mem. 36-37.
4
plaintiff “hit it” with the vehicle plaintiff was operating.
Def.’s Ex. 21; Def.’s Ex. 24. In an email plaintiff sent on
April 28, 2006, plaintiff explained the incident as follows:
I had asked one of the supers to have his friend move
his truck out of our way 5 times. . . . [E]ach time I
asked I did become more agitated. The last time I
said “Come on move the truck before I slam the machine
into it” (accidentally of course). Well I was kinda
pissed off so I stopped my machine and asked them
where my cat key was which I had let them borrow the
previous day 4/26/06. they told me it was on the
machine so I retrieved it and went about my business.
Def.’s Ex. 24. Defendant, relying on the testimony of another
witness, asserts that plaintiff also yelled into the trailer
belonging to the superintendent: “Are you going to move this
shit or what.” Def.’s Mem. 7.
It is also undisputed that after the incident at the job
site, plaintiff’s supervisor George Shegogue told plaintiff to
report to the office the next day for a meeting with Kulp. At
that meeting, Kulp informed plaintiff that the general
contractor had demanded that plaintiff be permanently removed
from its job site. The parties further agree that defendant
then conducted an investigation of the general contractor’s
allegations, at which time plaintiff provided defendant with a
written statement. Def.’s Ex. 21. At the conclusion of the
investigation, and despite an otherwise favorable performance
review from Shegogue, defendant terminated plaintiff on May 3,
5
2006. The termination report listed several reasons for the
termination, including: 1) “insubordinately refused to take
safety course,” 2) “dishonest[l]y failing to report @ fault
accident w/ property damage,” 3) “morale and conduct
unbecoming,” 4) “solicitation of employment to another
contractor,” and 5) “performance was bad enough that super had
to remove him before [he] could cause physical altercation
amongst contractors.” Def.’s Ex. 25.
After he was terminated, plaintiff amended his complaint
with DCOHR to reflect his termination, asserting that the
termination was motivated by unlawful retaliation. Def.’s Ex.
26. In a Letter of Determination dated November 28, 2006, DCOHR
found no probable cause to believe defendant subjected plaintiff
to discriminatory conduct or retaliated against plaintiff.
Def.’s Mem. Ex 27. The EEOC issued a Dismissal and Notice of
Rights on November 19, 2007 stating that the EEOC “adopted the
findings of the state or local fair employment practices agency
that investigated this charge.” Def.’s Ex. 28. On February 20,
2008, plaintiff initiated this lawsuit.
II. STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
6
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Though the Court must draw all justifiable inferences
in favor of the non-moving party in deciding whether there is a
disputed issue of material fact, “[t]he mere existence of a
scintilla of evidence in support of the [non-movant]’s position
will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-movant].” Anderson, 477 U.S.
at 252. “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Id.
at 249-50 (internal citations omitted).
III. ANALYSIS
A. Statute of Limitations: D.C. Code § 2-1403.16(a)
Plaintiff’s DCHRA claims are time barred. D.C. Code
§ 2-1403.16(a) provides that “[a] private cause of action
pursuant to this chapter shall be filed in a court of competent
jurisdiction within one year of the unlawful discriminatory
act[.]” Id. Plaintiff argues that the statute of limitations
was tolled because he filed an administrative complaint, but
§ 2-1403.16(a) provides only that “[t]he timely filing of a
complaint with the [District of Columbia Office of Human Rights]
. . . shall toll the running of the statute of limitations while
the complaint is pending.” Id. (emphasis added).
7
Plaintiff filed his administrative complaint in January
2006, and on November 28, 2006 the DCOHR issued a Letter of
Determination finding “no probable cause” to believe that
plaintiff was subjected to a hostile work environment or
retaliation. The Letter of Determination explicitly informed
plaintiff that the OHR had “completed the investigation of [his]
complaint.” Def. Ex. 27 at 1. The Letter of Determination
further stated that plaintiff could apply to the Director of the
OHR for reconsideration within 30 days and explained that if
plaintiff “does not file a request for reconsideration with the
OHR, this letter constitutes a final decision from OHR.” Def.
Ex. 27 at 12. Plaintiff did not apply for reconsideration of
the DCOHR’s decision.
The Court concludes that plaintiff’s complaint was no
longer “pending” with the DCOHR as of November 2006. Because
plaintiff did not commmence this action until February 20, 2008,
the one year statute of limitations bars plaintiff from pursuing
the DCHRA claims. Accordingly, plaintiff’s claims under the
DCHRA are hereby DISMISSED.2
2
Because the Court concludes that plaintiff’s claims under
the DCHRA are barred by the statute of limitations, the Court
does not reach defendant’s alternate argument that these same
claims are also barred under the election of remedies provision
contained in D.C. Code § 2-1403.16(a).
8
B. Collateral Estoppel
Defendant argues that because the DCOHR issued an adverse
ruling on the merits of plaintiff’s DCHRA claims, plaintiff is
collaterally estopped from pursuing both his DCHRA claims and
his Title VII claims. The Court disagrees. Although the
Supreme Court has made it clear that a state administrative
determination can preclude Title VII claims if it was affirmed
by the state court, the same is not true if the agency
determination was not reviewed by a state court. Specifically,
in Kremer v. Chemical Construction Corporation, 456 U.S. 461,
479-80 (1982), the Supreme Court held that a plaintiff was
precluded from pursuing his Title VII claims because the
administrative decision dismissing his New York state law claims
had been affirmed by the New York state court. Id. (“The [New
York] Appellate Division’s affirmance of the [New York State
Division of Human Rights’] dismissal necessarily decided that
petitioner’s claim under New York law was meritless, and thus it
also decided that a Title VII claim arising from the same events
would be equally meritless.” (citing 28 U.S.C. § 1738)).
However, in University of Tennessee v. Elliott, 478 U.S.
788 (1986), the Supreme Court explained that “[w]hile Kremer
teaches that final state-court judgments are entitled to full
faith and credit in Title VII actions, it indicates that
9
unreviewed determinations by state agencies stand on a different
footing[.]” Id. at 792. The Court then explicitly held,
“Congress did not intend unreviewed state administrative
proceedings to have preclusive effect on Title VII claims.” Id.
at 796; see also Bagenstose v. Dist. of Columbia, 503 F. Supp.
2d 247, 260 (D.D.C. 2007)(“[A] state administrative decision in
the employment-discrimination context is entitled to preclusive
effect in a subsequent Title VII suit where that decision has
been reviewed and affirmed by the state courts.”(emphasis
added)), aff’d, No. 07-5293, 2008 U.S. App. LEXIS 2914 (D.C.
Cir. Feb. 5, 2008).
In the instant case, the administrative decision by the
DCOHR was not reviewed by a state court. Accordingly, plaintiff
is not precluded from litigating his Title VII claims, and the
Court now turns to the merits of plaintiff’s claims.
C. Plaintiff’s Discrimination Claim
Title VII makes it unlawful for an employer to “fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). “This statutory
text establishes two elements for an employment discrimination
10
case: (i) the plaintiff suffered an adverse employment action
(ii) because of the employee’s race, color, religion, sex, or
national origin.” Brady v. Office of Sergeant at Arms, 520 F.3d
490, 493 (D.C. Cir. 2008). An adverse action in the
discrimination context 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) (quoting Taylor v. Small, 350
F.3d 1286, 1293 (D.C. Cir. 2003)).
“[O]nce the plaintiff has made out a prima facie case, [the
defendant] bears the burden of producing a non-discriminatory
explanation for the challenged personnel action.” Ford v.
Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973)). After
defendant has produced a legitimate, non-discriminatory reason
for the action, plaintiff bears the burden of showing either
that “the employer’s reason is pretextual or . . . that it was
more likely than not that the employer was motivated by
discrimination.” Id. (quoting Forman v. Small, 271 F.3d 285,
292 (D.C. Cir. 2001)).
At the summary judgment stage, “once the employer asserts a
legitimate, non-discriminatory reason, the question whether the
11
employee actually made out a prima facie case is no longer
relevant[.]” Brady, 520 F.3d at 493 (internal quotation marks
omitted). In other words, once an employer provides a
legitimate, non-discriminatory explanation for the challenged
action, “the district court need not - and should not – decide
whether the plaintiff actually made out a prima facie case under
McDonnell Douglas.” Id. at 494. In this circumstance, the
Court must assess “whether [the plaintiff] produced evidence
sufficient for a reasonable jury to find that the employer’s
stated reason was not the actual reason and that the employer
intentionally discriminated against [the plaintiff] based on his
race.” Id. at 495. As this Circuit has repeatedly held, the
inquiry after defendant has proffered a legitimate, non-
discriminatory reason for its actions is:
[W]hether a reasonable jury could infer intentional
discrimination from “(1) the plaintiff’s prima facie
case; (2) any evidence the plaintiff presents to
attack the employer’s proffered explanation for its
actions; and (3) any further evidence of
discrimination that may be available to the plaintiff
(such as independent evidence of discriminatory
statements or attitudes on the part of the employer).”
This boils down to two inquiries: could a reasonable
jury infer that the employer’s given explanation was
pretextual, and, if so, could the jury infer that this
pretext shielded discriminatory motives?
Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005) (quoting
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
12
1998)); see also Czekalski v. Peters, 475 F.3d 360, 368 (D.C.
Cir. 2007).
In the instant case, plaintiff alleges that the verbal and
written reprimands, his transfer from one crew to another, and
his eventual termination were discriminatory conduct by
defendant in violation of Title VII. Compl. ¶ 20. In
particular, plaintiff has asserted that he “received repeated,
unwarranted warnings that no one else received.” Pl.’s Mem. 24.
As detailed below, the Court concludes that the defendant,
in its motion for summary judgment, the accompanying Statement
of Material Undisputed Facts (“Def.’s Stat. Facts.”), and
related exhibits, has produced legitimate, non-discriminatory
reasons for each of the allegedly discriminatory actions.
However, with respect to one of those actions, namely the
written warning issued to plaintiff in November 2005, the Court
concludes that plaintiff has produced sufficient evidence from
which a reasonable jury could infer intentional discrimination.
The Court will first address the November 2005 incident
before addressing the remainder of plaintiff’s allegations.
1. The November 2005 Written Warning
It is undisputed that on or around November 2, 2005,
plaintiff received a written warning. It is also undisputed
that the proffered reason for the warning was insubordination,
13
more specifically that “Jeff Forsythe had to ask[] several times
before [plaintiff] attended [a] training class” and that
plaintiff “would not take the written test after the class was
completed.” Def.’s Ex. 14.
Plaintiff concedes that he did not take the written portion
of the class and does not dispute that Forsythe had to ask him
“several times” to attend the course. However, plaintiff claims
Forsythe treated him unfairly by making him retake a course that
he had already taken. Plaintiff also asserts that he therefore
did not deserve the written warning.3
Because the defendant has provided a legitimate, non-
discriminatory explanation for its actions, i.e. that the
general contractor required all members of the crews working on
its job site to take the course and that the warning was issued
to plaintiff because he refused to do so, the Court must
determine whether there is sufficient evidence from which a
reasonable jury could infer intentional discrimination. Murray,
406 F.3d at 713. As noted above, the Court considers “(1) the
plaintiff’s prima facie case; (2) any evidence the plaintiff
3
To the extent plaintiff is arguing that being required to
attend the safety training course was discriminatory conduct by
his employer in violation of Title VII, the Court disagrees.
The Court finds that the plaintiff’s required attendance at the
safety training class, along with everyone else assigned to
Forsythe’s crew, was not an “adverse employment action.”
14
presents to attack the employer’s proffered explanation for its
actions; and (3) any further evidence of discrimination that may
be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes on the part of the
employer).” Id. (emphasis added).
Here, evidence that Forsythe - who was plaintiff’s direct
supervisor at the time of the November 2005 incident - used the
term “nigger” specifically in reference to plaintiff provides
just such independent evidence of discriminatory statements or
attitudes on the part of the employer from which a reasonable
jury could infer intentional discrimination.4 Plaintiff has
therefore identified sufficient, albeit circumstantial, evidence
from which a reasonable jury could infer that Forsythe’s
decision to issue plaintiff a written reprimand was the result
of intentional discrimination. Accordingly, with respect to the
November 2005 incident, the Court DENIES summary judgment on
plaintiff’s discrimination claim.
4
Whether or not Forsythe made the racist remark is itself a
disputed issue of material fact. The reprimand issued to
Forsythe after plaintiff made an internal complaint, as well as
defendant’s submission to the DCOHR, assert that one of
defendant’s employees stated that he heard Forsythe use the
racial slur. Furthermore, although plaintiff has provided
inconsistent statements in this regard, plaintiff stated in his
deposition that he himself heard Forsythe use the racial slur.
Forsythe, on the other hand, denied that he ever made a racist
statement or discriminated against anyone. Def.’s Stat. Facts
¶ 47.
15
2. Other Allegations of Discriminatory Conduct
The Court now turns to the other allegedly discriminatory
conduct by defendant, including the June 2005 warnings, the
January 2006 warning and plaintiff’s ultimate termination in May
2006. First, with respect to the warnings and demotion that
occurred shortly after plaintiff began working for defendant in
June 2005, defendant asserts that these actions were taken
because plaintiff demonstrated an inability to perform the job
for which he was hired, namely safely operate heavy equipment.
Defendant has submitted the written warnings themselves in
support of this assertion, as well as the testimony of John Kulp
and defendant’s human resources director, Ricardo Tormo.
Because defendant has produced a legitimate, non-
discriminatory reason for its actions, the burden shifts to
plaintiff to show either “that the employer’s reason is
pretextual” or “that it was more likely than not that the
employer was motivated by discrimination.” Ford, 629 F.3d at
201. Plaintiff has not met this burden with respect to these
incidents. Quite the contrary, at his deposition, plaintiff
plainly stated that he did not believe that his demotion from a
heavy equipment operator and reduction in pay was because of his
race, and plaintiff stated that those events “had nothing to do
with my case.” Pl.’s Dep. 66:11-67:6; see also Pl.’s Dep. at 68
16
(Q: “[A]re you claiming that Mr. Kulp’s decision to move you to
another crew, off [Wedding’s] crew onto [Forsythe’s] crew, was
that due to your race?” A: “No.”).5
Similarly, with respect to the warning issued in January
2006 related to the accident on the job site that caused damage
to defendant’s property, the defendant has plainly offered a
non-discriminatory reason for its actions. The written warning
itself, which plaintiff himself signed at the time it was
issued, states that plaintiff failed to report an accident in
which he caused damage to property. At his deposition,
plaintiff admitted that he caused an accident that resulted in
damage to defendant’s property. Pl.’s Dep. 115:9-115:19.
Plaintiff has also failed to point to any “evidence
sufficient for a reasonable jury to find that the employer’s
stated reason was not the actual reason and that the employer
5
In December 2005, after plaintiff had made the internal
complaint regarding Forsythe and after the incident related to
the flagging course, plaintiff was transferred to a third crew,
supervised by Foreman George Shegogue. To the extent that
plaintiff alleges that his transfer from Forsythe’s crew to
Shegogue’s crew in November 2005 supports his claim of
discrimination, the Court is not persuaded that this particular
transfer amounted to an adverse employment action. Unlike the
transfer in June 2005 that was accompanied by a demotion and
reduction in pay, plaintiff has not identified for the Court any
evidence suggesting that the transfer to Shegogue’s crew in
December 2005 an adverse employment action.
17
intentionally discriminated against [the plaintiff] based on his
race,” Brady, 520 F.3d at 493, regarding the January 2006
warning. Plaintiff, quoting the Circuit’s opinion in Aka v.
Washington Hospital Center, attempts to argue that “an
employer’s heavy use of highly subjective criteria, such as
‘interpersonal skills,’ could support an inference of
discrimination,” 156 F.3d at 1298, and that such an inference
should be drawn in the instant case because the employer’s
policies were unclear. Pl.’s Mem. 24. While plaintiff is
correct that the heavy use of highly subjective criteria is
treated with suspicion, the Court finds nothing subjective about
the criteria behind this written warning, i.e. damage to
defendant’s property.
Finally, the Court considers the plaintiff’s termination in
May 2006. As detailed above, defendant has produced legitimate,
non-discriminatory reasons for plaintiff’s termination. The
termination report listed several reasons for the termination,
including the prior incidents for which warnings were issued, as
well as the altercation at the job site in April 2006 that led
to the general contractor demanding that plaintiff be
permanently removed from the job site. Def.’s Stat. Facts
¶¶ 76-95. The termination report listed five violations:
insubordination for failing to take a safety course, failure to
18
report an accident as required by company policy, “unbecoming
morale and conduct,” soliciting employment from another
contractor, and poor performance that was “bad enough that super
had to remove him before [he] could cause physical altercation
amongst contractors.” Def.’s Ex. 25. Defendant, in its summary
judgment briefing, has particularly emphasized the altercation
at the job site.
Thus, the inquiry again becomes whether, despite the
reasons articulated by defendant, plaintiff has provided
sufficient evidence from which a reasonable jury could infer
discriminatory intent.
Plaintiff makes several arguments in this respect. First,
regarding the assertion that plaintiff exhibited “unbecoming
morale and conduct” and “solicited employment from another
contractor,” plaintiff asserts that these are charges “for which
no Magnolia employee has been disciplined.” Pl.’s Mem. 20.
Although it is correct that evidence of pretext can include
evidence of more favorable treatment of employees not in
plaintiff’s protected class, “[t]o prove that [plaintiff] is
similarly situated to another employee, a plaintiff must
‘demonstrate that all of the relevant aspects of [his]
employment situation were nearly identical to those of the
[allegedly comparable] employee.” Laurent v. Bureau of
19
Rehabilitation, Inc., 544 F. Supp. 2d 17, 22 (D.D.C.
2008)(quoting Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
1999)); see also Phillips v. Holladay Prop. Servs., 937 F. Supp.
32, 37 (D.D.C. 1996), aff’d, No. 96-7202, 1997 U.S. App. LEXIS
19033 (D.C. Cir. Jun. 19, 1997). The plaintiff’s comparator
must have been charged with a comparable offense and then
treated less harshly than the plaintiff. See Holbrook, 196 F.3d
at 261; Hanna v. Herman, 121 F. Supp. 2d 113, 120-21 (D.D.C.
2000).
In the instant case, plaintiff has failed to demonstrate
that another similarly situated employee was treated more
favorably. Plaintiff points first to the defendant’s treatment
of another employee, Norayer Mehrabian. Pl.’s Stat. Facts ¶ 12.
The parties appear to agree that Mehrabian was also removed from
a customer’s job site, but he was not terminated for that
offense. Plaintiff also alleges that two of his co-workers,
Jose Parajan and Andre Bender “engag[ed] in a similar incident”
by having an altercation at a job site but were sent home and
“given an opportunity to ‘cool off’” rather than being
reprimanded or terminated. Pl.’s Stat. Facts ¶ 11.
However, plaintiff does not dispute that Mehrabian was
removed from a job site for a safety violation and that the
altercation between the other two employees did not involve one
20
of defendant’s customers. Nor does plaintiff allege that any of
these other employees accumulated multiple warnings before
termination, as plaintiff did. Finally, plaintiff cannot show
pretext by simply asserting that defendant “provided no examples
of employees disciplined for [the] reasons given for Davis’
warnings and/or termination.” Pl.’s Mem. 38. The burden is on
plaintiff to provide evidence from which a jury could infer
discriminatory intent. The Court concludes that plaintiff has
not demonstrated a “similarly situated employee” was treated
more favorably than plaintiff. “In the absence of evidence
that the comparators were actually similarly to [plaintiff] an
inference of falsity or discrimination is not reasonable.”
Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008).
Second, plaintiff argues that favorable statements by the
plaintiff’s direct supervisor, Shegogue, are evidence that
defendant’s asserted reasons for terminating plaintiff were
pretextual. Specifically, Shegogue, in a statement apparently
obtained during defendant’s investigation into the April 2006
altercation at the job site, stated that plaintiff was a “model
employee” who does “whatever I ask” and “[t]akes care of
equipment – great.” Def. Ex. 18. The flaw in plaintiff’s
argument, however, is that plaintiff himself does not dispute
that he caused an accident that caused injury to defendant’s
21
property, that he was demoted for demonstrating an inability to
perform the tasks for which he was hired, and that he was
involved in an altercation with one of defendant’s customers.
The Court concludes that Shegogue’s statement that plaintiff was
otherwise a good employee does not provide “evidence sufficient
for a reasonable jury to find that the employer’s stated reason
was not the actual reason” or that the employer intentionally
“discriminated against [the plaintiff] based on his race.”
Brady, 520 F.3d at 493. To the contrary, the Court is not
persuaded that Shegogue’s statements are inconsistent with the
legitimate, non-discriminatory reasons articulated by defendant.
In sum, unlike the plaintiff’s claim with respect to the
November 2005 incident, plaintiff has not produced sufficient
evidence from which a reasonable jury could infer intentional
discrimination in connection with the remainder of the
challenged actions.6 It is undisputed that Forsythe, who was
6
Plaintiff also offers statistical evidence in support of
his discrimination claim. In particular, he asserts that “the
record demonstrates that Defendant, which employs approximately
114 employees (13 of whom are African American) and is located
in the District of Columbia, a city with a majority African-
American population, favors non-African American employees.
Indeed, Defendant employs no African-American managers[.]”
Pl.’s Mem. 24 (internal citations omitted). However, although
statistical evidence may be relevant in disparate treatment
actions, see McDonnell Douglas, 411 U.S. at 804-05, such
evidence is “ordinarily not dispositive.” Krodel v. Young, 748
22
plaintiff’s supervisor at the time of the November 2005
incident, had no decision-making authority with respect to any
7
of the other incidents.
Accordingly, the Court GRANTS IN PART AND DENIES IN PART
defendant’s motion for summary judgment on plaintiff’s
discrimination claim.
D. Plaintiff’s Claim of a Hostile Work Environment
To prevail on a hostile work environment claim, “a
plaintiff must show that his employer subjected him to
‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the
F.2d 701, 710 (D.C. Cir. 1984); see also Simpson v. Leavitt, 437
F. Supp. 2d 95, 104 (D.D.C. 2006) (concluding that statistical
evidence of discrimination is “not conclusive [in a disparate
treatment case]” although it can bolster a claim of
discrimination “presuming other evidence exists to give rise to
an inference of discrimination”). In the instant case, the
Court further notes that the statistical evidence cited by
plaintiff is even less meaningful because it is not directly
relevant to the type of disparate treatment about which
plaintiff complains.
7
The Court does note, however, that the November 2005
incident was one of several reasons included by defendant in
plaintiff’s termination report. If it is determined that the
November 2005 warning was in fact the result of discrimination,
as discussed above, the question may arise whether the plaintiff
can show that discrimination “played a motivating part or was a
substantial factor in the employment decision” to terminate
plaintiff, and then whether the defendant can “demonstrate[]
that it would have taken the same action in the absence of the
impermissible motivating factor.” Fogg v. Gonzales, 492 F.3d
447, 451 (D.C. Cir. 2007); 42 U.S.C. § 2000e-5(g)(2)(B).
23
victim’s employment and create an abusive working environment.’”
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
“To determine whether a hostile work environment exists, the
court looks to the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work
performance.” Id. (citing Faragher v. City of Boca Raton, 524
U.S. 775, 787-88 (1998)).
In the instant case, plaintiff alleges in his complaint
that his supervisor in July 2005 referred to him as a “nigger.”
Although plaintiff’s memorandum of law in opposition vaguely
asserts his supervisor used the racial slur “on more than one
occasion” in 2005, Pl.’s Mem. 14., plaintiff has not pointed to
any evidence that supports this assertion. On the contrary,
both plaintiff’s complaint, as well as plaintiff’s statement of
material facts as to which there exists a genuine issue to be
litigated, only refer to the one instance.8
8
Paragraph 1 and paragraph 17 of plaintiff’s statement of
material facts, despite the apparent typographical error
contained in the date referenced in paragraph 17, appear to
refer to the same incident. Both paragraphs rely on page six of
Plaintiff’s Exhibit M; the document is defendant’s submission to
DCOHR and contains, on page six, an account of the single 2005
incident.
24
Even assuming that plaintiff’s allegations are true, the
incident described by plaintiff is insufficient to support a
claim of a hostile work environment. Looking at the “totality
of the circumstances,” the conduct described by plaintiff was
not “pervasive.” Baloch, 550 F.3d at 1201. Furthermore,
“isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the terms and conditions of
employment.” George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir.
2005). Plaintiff in the instant case fails to show that his
workplace was “permeated with discriminatory intimidation,
ridicule, and insult that was sufficiently severe or pervasive
to alter the conditions of [his] employment and create an
abusive working environment.” Id. (emphasis added); see also
Lester v. Natsios, 290 F. Supp. 2d 11, 31 (D.D.C. 2003) (holding
that plaintiff failed to establish a prima facie case of hostile
work environment because the events alleged were “not,
individually or collectively, sufficiently ‘severe’ and
‘pervasive’ to move beyond ‘the ordinary tribulations of the
workplace’ and ‘create an abusive working environment’” (quoting
Faragher, 524 U.S. at 787-88)). Accordingly, defendant’s motion
for summary judgment on plaintiff’s hostile work environment
claim is hereby GRANTED.
25
E. Plaintiff’s Retaliation Claim
The anti-retaliation provision of Title VII prohibits an
employer from “discriminat[ing] against any of his employees or
applicants for employment . . . because [the employee] has
opposed any practice made an unlawful employment practice by
this title, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title.” 42 U.S.C. § 2000e-
3(a). “To establish a prima facie case of retaliation, a
claimant must show that (1) she engaged in a statutorily
protected activity; (2) she suffered a materially adverse action
by her employer; and (3) a causal connection existed between the
two.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).
“In order to prevail upon a claim of unlawful retaliation,
an employee must show she engaged in protected activity, as a
consequence of which her employer took a materially adverse
action against her.” Porter v. Shah, 606 F.3d 809, 817 (D.C.
Cir. 2010) (quoting Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.
Cir. 2009)). An action is materially adverse in the context of
a retaliation claim, if plaintiff can 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
26
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006); see also Steele v. Schafer, 535 F.3d
689, 696 (D.C. Cir. 2008); Baloch, 550 F.3d at 1198.
As in the context of a discrimination claim,
“[r]etaliation claims based upon circumstantial evidence are
governed by the three-step test of McDonnell Douglas Corp. v.
Green, which requires the employee first to establish prima
facie the elements of retaliation. If the plaintiff does so,
then the burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for its action.” Taylor, 571 F.3d at
1320(internal citations omitted). If defendant rebuts
plaintiff’s claims in this manner, plaintiff’s retaliation
claims will not survive unless plaintiff is able to “produce
sufficient evidence that would discredit those reasons and show
that the actions were retaliatory.” Baloch, 550 F.3d at 1200.
In the instant case, plaintiff alleges that “[s]ince
complaining internally to Defendant’s human resources office and
since his complaint to [DCOHR], Defendant reprimanded Plaintiff
on numerous occasions by issuing him unfounded or otherwise
concocted warnings in retaliation for his engaging in the
protected activity of complaining of unlawful discrimination and
retaliation[.]” Compl. ¶ 17; see also Compl. ¶ 25.
27
In its motion for summary judgment, defendant first
challenges plaintiff’s prima facie case. First, with respect to
plaintiff’s termination, defendant asserts that plaintiff has
failed to establish a causal connection between plaintiff’s
protected activity and his termination. In particular,
defendant asserts that because plaintiff first reported the
racist comment in October 2005 but was not terminated until
seven months later, there is no causal connection. Defendant
also attacks plaintiff’s prima facie case by arguing plaintiff
cannot maintain a retaliation claim based on receiving written
warnings. Def.’s Reply 17.
The Court finds defendant’s arguments concerning
plaintiff’s prima facie case unpersuasive. First, this Circuit
has made it clear that negative performance assessments may
constitute materially adverse actions when they “affect
[plaintiff’s] position, grade level, salary, or promotion
opportunities.” Porter v. Shah, 606 F.3d 809, 817 (D.C. Cir.
2010); see also Baloch, 550 F.3d at 1191. A “lower score on the
employee’s performance evaluation, by itself, is not
actionable,” for instance, “unless [the employee] can establish
that the lower score led to a more tangible form of adverse
action, such as ineligibility for promotional opportunities.”
Brown v. Snow, 440 F.3d 1259, 1265 (11th Cir. 2006) (relied upon
28
by this Circuit in Baloch, 550 F.3d at 1198 (emphasis added));
see also Hyson v. Architect of the Capitol, Civ. No. 08-979,
2011 U.S. Dist. LEXIS 88300, at *40 (D.D.C. Aug. 10, 2011) (“A
letter of counseling, written reprimand, or unsatisfactory
performance review, if not . . . a predicate for a more tangible
form of adverse action, will rarely constitute materially
adverse action under Title VII.” (emphasis added)).
In the instant case, the Court concludes that plaintiff has
produced sufficient evidence to demonstrate that the written
warnings issued to plaintiff in November 2005 and January 2006
“led to a more tangible form of adverse action” because they
contributed to plaintiff’s termination, or at least that this is
a materially disputed fact. The termination report explicitly
relies on plaintiff’s prior infractions. Def.’s Ex. 25.
Defendant’s argument relating to temporal proximity is
equally unpersuasive. Particularly in light of the Court’s
conclusion that the written warnings issued to the plaintiff are
appropriately part of plaintiff’s prima facie case of
discrimination, the Court finds the timing of the November 2005
warning significant. It is undisputed that Forsythe issued the
November 2005 warning to plaintiff merely two weeks after he
became aware of plaintiff’s internal complaint against him.
Furthermore, after plaintiff filed a charge of discrimination
29
with the DCOHR in January 2006, plaintiff received an additional
warning on January 30, 2006. The Court accordingly concludes
that plaintiff has established a prima facie case of
retaliation.
In the alternative, defendant argues that it has produced
legitimate reasons for the conduct in question. Here, the Court
is in agreement with the defendant. The defendant has, as
discussed above in the context of plaintiff’s discrimination
claim, produced legitimate, non-discriminatory reasons for all
of the challenged conduct that occurred after plaintiff filed
complaints against his employer, i.e. the November 2005 and
January 2006 written reprimands and plaintiff’s termination in
May 2006. Because defendant has offered legitimate, non-
discriminatory reasons, plaintiff’s retaliation claims will not
survive unless plaintiff is able to “produce sufficient evidence
that would discredit those reasons and show that the actions
were retaliatory.” Baloch, 550 F.3d at 1200. Plaintiff has
failed to do so.
Plaintiff relies on substantially the same evidence used in
support of his discrimination claim to argue that a reasonable
jury could infer intentional retaliation. For the same reasons
already articulated, the Court finds plaintiff’s arguments
unpersuasive. In addition, plaintiff focuses on the temporal
30
proximity, emphasizing the short amount of time between when
Forsythe learned of the internal complaint plaintiff made and
when Forsythe issued a written warning to plaintiff in November
2005 for insubordination. However, “positive evidence beyond
mere proximity is required to defeat the presumption that the
proffered explanations are genuine.” Talavera v. Shah, 638 F.3d
303, 313 (D.C. Cir. 2011) (quoting Woodruff v. Peters, 482 F.3d
521, 530 (D.C. Cir. 2007). Plaintiff has failed to provide any
evidence, other than sheer temporal proximity, that would allow
a reasonable jury to infer that Forsythe’s motive in issuing the
written warning was retaliatory.9 Accordingly, defendant’s
motion for summary judgment on plaintiff’s retaliation claim is
hereby GRANTED.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART defendant’s motion for summary judgment. An
Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 30, 2011
9
Although evidence that Forsythe used a racial slur was
sufficient circumstantial evidence from which a jury could infer
discriminatory intent with respect to the November 2005 warning,
the remark does not support an inference of retaliatory intent.
A racist remark by Forsythe, if proven, would demonstrate a
racially discriminatory animus; it would not demonstrate a
retaliatory animus.
31