Wilkerson v. Wackenhut Protective Services, Inc. , 813 F. Supp. 2d 61 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WINFRED WILKERSON, )
)
Plaintiff, )
)
v. ) Civil Case No. 9-2142 (RJL)
)
)
W ACKENHUT PROTECTIVE )
SERVICES, INC., )
)
Defendant. )
)
)
ltvd
MEMORANDUM OPINION
(September J:I)O
11) [Dkt. # 14]
Plaintiff, Winfred Wilkerson ("Wilkerson" or "plaintiff'), brought an
employment-discrimination action against his employer, Wackenhut Protective Services,
Inc. I ("Wackenhut" or "defendant"), asserting gender discrimination claims under the
D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-l40l.0l-2-140l.06. Complaint
("Compl."), Oct. 15,2009 [Dkt. #1-2]. Defendant removed the case to this Court on
November 13,2009, and later filed a Motion for Summary Judgment. Def.'s Motion for
Summary Judgment ("Mot. for Summ. J."), Sept. 2, 2010 [Dkt. #14]. Upon review of the
pleadings, the entire record, and the applicable law, defendant's Motion for Summary
Judgment [Dkt. #14] is GRANTED.
Although Wackenhut Protective Services, Inc., is named in this suit, plaintiff
acknowledges that Wackenhut Services, Inc. ("WSI") employed him. See Def. 's Mot. for
Summ. J. at 3, n.6.
1
BACKGROUND
I. Plaintiff's Employment With Wackenhut
Wilkerson is an African American male who was, at the time of filing this action,
forty-seven years old. CompI., 6. Wackenhut provides armed and unarmed security
services to government customers such as Walter Reed Army Medical Center ("Walter
Reed"). Mot. for Summ. J. at 2; see also Def.'s Ex. 2, PaffDecI. , 2 [Dkt. #14-10].
Wackenhut is an equal-opportunity employer whose stated policy prohibits unlawful
discrimination, including gender discrimination. Mot. for Summ. J. at 2; Def.'s
Wilkerson Dep. Ex. 6, Equal Employment Opportunity Policy [Dkt. #14-2 at 16].
Around August 2008, Wackenhut succeeded Chenega Protective Services
("Chenega") as the security contractor for Walter Reed. Mot. for Summ. J. at 3; Def.'s
Ex. 3, Deposition of Dale Paff ("Paff Dep."), June 25, 2010, at 12:18-19 [Dkt. #14-11].
That same month, plaintiff applied for a job as a security officer with Wackenhut. Def.'s
Wilkerson Dep. Ex. 3, Wilkerson Employment Application, Aug. 5, 2008 [Dkt. # 14-2].
Wackenhut gave plaintiff a conditional offer of employment, see Def. 's Wilkerson Dep.
Ex. 5, Aug. 1,2008 [Dkt. #14-2 at 14], and plaintiff began work shortly thereafter. 2
During discovery, Mr. Paff, Wackenhut's Regional Manager at that time, learned
that plaintiff falsely represented his prior employment on his Wackenhut job application
by stating that he had never been dismissed or asked to resign from a previous job. Mot.
for Summ. J. at 3-4; see also Def. Dep. Ex. 3, Wilkerson Application for Employment,
Aug. 5,2008, at 3 [Dkt. #14-2]. In fact, a prior employer had fired plaintiff for reckless
and negligent driving which resulted in plaintiff crashing the employer's van, and for
failing to report the accident. See, e.g., Def.'s Ex. 1, Wilkerson Dep. at 20:14-16,22:12-
15,29:4-19; Def. Dep. Ex. 4, Employee Disciplinary Notice, April 12, 2001 [Dkt. # 14-2
at 7]. The employment application stated that "any misrepresentation, falsification, or
omission of this application shall be sufficient reason for refusal or dismissal of ...
2
II. Wackenhut Attendance and Discipline Policies 3
Wackenhut's employee attendance polices are outlined in various company
documents, including the Wackenhut Security Officer Handbook ("Handbook"),4 see,
e.g., Oef.'s Oep. Ex. lO [Okt. #14-3 at 3], and WSI statements of policy. See, e.g., Oef.'s
Oep. Ex. 12, Performance ofOuty Policy Change, Aug. 18,2008 [Okt. #14-9]. The
Wackenhut Handbook clearly states that grounds for immediate dismissal include
"[u]nexcused 'no call, no show' absence(s)." Oef.'s Oep. Ex. lO, Part 4 [Dkt. #14-6 at
3]; see also Def.'s Dep. Ex. 13, Policy #4, Work Attendance [Okt. #14-9 at 8] (noting
that one "no call/no show" incident "will subject the employee to disciplinary action up
to and including termination"). Company policy also emphasizes this point: "the
following are examples of actions ... [which] may result in disciplinary action, up to and
including termination: excessive absences or tardiness (even when excused)." Oef.'s
Dep. Ex. 12, Policy #1, Performance of Duty [Dkt. #14-9 at 5].
The Handbook does not appear to outline specific procedures for handling the
request of an officer who wishes to swap shifts with another employee to avoid missing
employment," see Oef.'s Oep. Ex. 3, and plaintiff acknowledged as much during a sworn
deposition. Def.'s Ex. 1, Wilkerson Dep. at 14:22-15:17. In a sworn declaration, Paff
stated that he would have fired plaintiff had the fraud come to light during plaintiff s
employment. Def.'s Ex. 2, PaffDecl. `` 5-7.
3
To the extent plaintiff contests the facts described below, he fails to actually
identify genuine issues of material fact because he relies only on bare assertions and
concIusory allegations instead of on admissible, record evidence.
4
Plaintiff signed a receipt stating that he received, read, and understood the
Handbook on August 5, 2008. See Oef.'s Dep. Ex. 11, Receipt of WSI Employee and/or
Security Officer Handbook, Aug. 5,2008 [Dkt. #14-9].
3
an assigned shift. However, Wackenhut does follow an unwritten, but "learned
procedure" for such requests. See Def. 's Ex. 3, PaffDep., at 51 :21-22 [Dkt. #14-11].
Specifically, then-Regional Manager Dale Paff explained that management requires
employees to submit a "swap form" detailing information about the employee originally
scheduled for a given shift and the employee who has agreed to take over the shift. See
id. at 60-61. The form, which must be "signed by both employees and approved by
management," id. at 51: 11-17, ensures that an employee is held accountable, a record is
made, and management is informed about which employee is responsible for each shift,
see id. at 52-53; see also Def.'s Ex. 4, Dep. ofLt. Victor Spain ("Spain Dep.") [Dkt. #14-
12] at 38:3-8 ("Well, they were allowed to change shifts .... That was okay. But
paperwork had to be done for that."). Indeed, "[ a]bsent an official written shift swap, the
officer assigned to a shift at Walter Reed Army Medical Center is responsible for
manning it." Def.'s Ex. 2, PaffDecl., ,; 4.
Importantly, although Wackenhut policy does include a "progressive discipline
process" in which disciplinary actions may escalate commensurate with the number of an
employee's unscheduled absences, see Def.'s Dep. Ex. 13, Policy #4 - Work Attendance,
at 3, Wackenhut also retains "the absolute right to terminate any employee at any time
with or without good cause," Def.' s Dep. Ex. 10, Security Officer Handbook, at 3 § 2.15.
III. Plaintiff's Request For Vacation
In early September 2008, plaintiff submitted a request to his supervisor,
Lieutenant Victor Spain, asking for two weeks of vacation in early October. Mot. for
Summ.1. at 5; Pl.'s Opp'n at 4 [Dkt. #20]. Lt. Spain forwarded the request to Chief
4
limmi Brown, who delegated decision-making to Captain Haskins. See Def.'s Ex. 1,
Wilkerson Dep., at 69-71; see also Def. 's Ex. 4, Spain Dep. at 9-11.
At the time, Walter Reed was short-staffed and Wackenhut was trying to reduce
overtime expenditures. Def.'s Ex. 3, PaffDep. 16:6-13, 19: 18-20:7; Def.'s Ex. 4, Spain
Dep. 39:12-20; Def.'s Ex. 1, Wilkerson Dep. 59:5-60:1. As a result, Capt. Haskins
denied plaintiffs request for leave, explaining the short-staff issue to plaintiff in person.
Notwithstanding the staff shortages, however, Capt. Haskins agreed to give plaintiff time
off if plaintiff could find someone to cover his shifts - that is, if plaintiff could
successfully complete a shift swap. Mot. for Summ. 1. at 5; PI.'s Opp'n at 4; Def.'s Ex.
1, Wilkerson Dep. 70:20-71 :4, 75:2-76:2, 77: 12-78: 17, 81: 15-82:4; Def.'s Dep. Ex. 15,
Wilkerson's EEOC Charge of Discrimination [Dkt. # 14-9] ("I initially applied to use
some of my ... accumulated leave for a week. Initially, I was turned down and was told
that we were short of manpower .... Later I was told by my Captain that he would
approve leave ifI could find a replacement who was willing to work my shifts.").
Plaintiff accepted Capt. Haskins' offer to orchestrate a shift-swap in order to take leave.
Def.'s Ex. 1, Wilkerson Dep. 79:19-20 ("I said okay. I said, that's a deal.").
In total, plaintiff hoped to take leave - and thus swap duties - for six shifts
between October 2 and October 10, 2008. The shifts were scheduled according to
plaintiffs normal working days: in his case, for Thursday, Sunday, Monday, Tuesday,
Wednesday, and the following Thursday. Pl.'s Opp'n at 4-5; PI.'s Attach. B, Wilkerson
Decl., Oct. 11,2010 [Dkt. #20-1 at 11], ~ 5.
Plaintiff contends that he identified three other officers to cover his shifts. Mot.
5
for Summ. 1. at 7; PI.'s Opp'n at 4-5; PI.'s Attach. B, Wilkerson Decl., ~ 5. He maintains
that Officer Samuel Addy agreed to work four of the six shifts: Monday, Tuesday,
Wednesday, and Thursday. Mot. for Summ. J. at 7; PI.'s Opp'n at 5; Def.'s Ex. 1,
Wilkerson Dep., 70:19-71:9, 82:5-83:2, 84:22-85:15; Def.'s Ex. 5, Addy Dep. 23:15-
27:10 [Dkt. #14-13]. Wackenhut acknowledges that Officer Addy orally informed
Capt. Haskins that he would swap four shifts with plaintiff, and that Capt. Haskins orally
approved plaintiffs request for time off. 5 Mot. for Summ. J. at 7. But it is undisputed
that neither Wilkerson, nor Officer Addy, documented the shift swap, and that Capt.
Haskins did not sign any document approving it. Jd.; see also Def.'s Ex. 5, Addy Dep.
24:16-17,25:9-16,27:4-5,28:5.
Nonetheless, Wilkerson took the leave he requested. Indeed, during that time, he
attended a training class offered by Chenega Security, the predecessor for the Walter
Reed contract, see PI.'s Opp'n at 5, and a Wackenhut competitor. See also PI.'s Attach.
B, Wilkerson Decl., ~ 6. Meanwhile, Officer Addy did not show up for the four shifts he
allegedly agreed to cover.6 Mot. for Summ. J. at 7; see PI. 's Attach. C, Addy Decl., ~ 10;
5
Plaintiff does not explain or provide evidence pertaining to who agreed to swap
with him for the remaining two shifts. Wackenhut suggests that plaintiff "hoped"
Officers Pope and Kilgore would cover the remaining two shifts, but plaintiff provides no
evidence that either Officer was asked to swap before plaintiffs departure, and offers no
evidence that either Officer agreed (much less documented the agreement in writing).
See Def.'s Ex. 1, Wilkerson Dep. 84:22-85:15,187:22-188:16 (admitting under oath that
he "hadn't spoke[ n] with [Officer Kilgore] before [he] departed for [his] vacation").
Thus, plaintiffs assertion - with absolutely no explanation or supporting evidence - that
he "arranged for others to cover" does nothing to prove his claim. PI.' s Opp' n at 16.
In his own declaration, Addy explained that when he called into work the day
before the first shift he (orally) agreed to cover for plaintiff, the sergeant on duty stated
6
Def.'s Ex. 3, PaffDep. 62:14-20. As such, Captains Brown and Haskins reported
Wilkerson's absences to Paff, who, as Regional Director, was responsible for
recommending disciplinary action for Wackenhut's Walter Reed employees. Mot.
Summ. J. at 7; Def.'s Ex. 3, PaffDep. 5:13-14,27:2-4,31:5-9,43:2-10. In addition, the
Captains explained that Wilkerson had missed mUltiple shifts over the course of that ten-
day period. 7 See, e.g., Mot. SUlnm. 1. at 7; Def.'s Ex. 3, PaffDep. 18:20-20:10,27:11-17,
31: 10-32: 14. Paff also learned that Capt. Haskins (and perhaps others) had meaningfully
attempted to reach Wilkerson on his cell phone to find out why he had not covered his
shifts. 8 See id. at 32:5-14, 40: 18-21, 44: 11-18.
In sum, Paff concluded that plaintiff had abandoned his job, see, e.g., id. 40: 12-21,
44:9-45:7; Def.'s Ex. 1, Wilkerson Dep. 142:21-143:1, and instructed Chief Brown to
issue a "job abandonment" letter terminating Wilkerson for missing "ten (10) scheduled
that Addy was not listed "anywhere on the schedule." PI.'s Attach. C, Addy Decl., ~ 10.
This comports with Pafrs testimony that "if the vacation was not approved," (and
according to Paff, it was not) Wilkerson "would still be scheduled for work on his shift-
on the schedule." Def.'s Ex. 3, PaffDep. 49:8-10. It is undisputed that Addy did not
show up for the shifts - the likely result of Addy's assumption, after calling in, "that they
must have got somebody else to cover [Wilkerson's] shifts." Pl.'s Attach. C, Addy
Decl" ~ 10. And although no party explicitly makes this point, the evidence manifestly
supports the inference that the documentation portion of the "shift swap" procedure exists
precisely to avoid the situation described here: missed shifts due to lack of formal
communication between employees and employers.
Paff characterized the missed shifts as plaintiff "in effect" not "show[ing] up for
approximately ten days" and being "unable to be contacted." Def.'s Ex. 3, PaffDep.
20:8-10. He later clarified that he did not contend that plaintiff "missed ten shifts," but
rather that "for a period of over ten days we were unable to get in contact with Mr.
Wilkerson." Id. 50:1-5.
Plaintiff denies that anyone called him about missed shifts. See PI. 's Attach B,
Wilkerson Decl" ~ 7.
7
days of work, without calling or letting [Wackenhut] know your status." Def.' sEx. 3,
PaffDep. 49: 19-51 :7; Def.'s Dep. Ex. 16, Letter from J. Brown to Wilkerson, Oct. 16,
2008 [Dkt. # 14-9].
After his termination, plaintiff (curiously!) filed a discrimination charge with the
Equal Employment Opportunity Commission ("EEOC"). See Def. 's Ex. 1, Wilkerson
Dep. 75:2-10; Def.'s Dep. Ex. 15, EEOC Charge of Discrimination [Dkt. #14-9]. The
EEOC dismissed plaintiff s charge for failure to find any evidence of discrimination
against him. Def.' sEx. 1, Wilkerson Dep. 117: 17 -22. Wilkerson then filed this civil
action.
ANALYSIS
I. Standard of Review
A. Summary Judgment
Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment 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." When examining the record, the Court must
view all inferences in the light most favorable to the non-moving party. See, e.g., Adiekes
v. SH. Kress & Co., 398 U.S. 144, 157 (1970). But to avoid summary judgment, the
non-moving party must introduce specific facts "showing that there is a genuine issue for
trial." Matsushita Elee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing Fed. R. Civ. P. 56(e». That evidence "must consist of more than mere
unsupported allegations or denial and must set forth specific facts." Walker v. Dalton, 94
F. Supp. 2d 8, 10 (D.D.C. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 n.3
8
(1986». Indeed, the "opponent must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at
586.
B. Employment Discrimination
Claims under the DCHRA are analyzed under the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that
framework, a plaintiff must establish a prima facie case by proving that (1) he is a
member of a protected class; (2) he suffered an adverse employment action; and (3) the
unfavorable action creates an inference of discrimination. See McDonnell Douglas, 411
U.S. at 802. If a plaintiff successfully makes a prima facie case, the burden then shifts to
the defendant to articulate a "legitimate, nondiscriminatory reason for the employee's
rejection." Id. If the defendant is able to articulate such a reason, the burden shifts back
to the plaintiff to prove, by a preponderance of the evidence, that defendant's stated
reasons are actually pretext for discrimination. Id.; see also Brady v. Office of the
Sergeant at Arms, 520 F.3d 490,495 (D.C. Cir. 2008).
However, at the summary judgment stage, the Court need only resolve one central
question: whether the employee "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 employee] based on his [protected class]?"
Brady, 520 FJd at 494.
9
II. Defendant Is Entitled To Summary Judgment Because Plaintiff Offers No
Admissible Evidence of Discrimination.
In essence, plaintiff's discrimination claim boils down to this: as a male, he
suffered disparate treatment when he was "treated less favorably than females who were
taking vacation during th[ e] same period of time to attend training for competitor security
companies." See PI.'s Opp'n at 7. Because he was asked to complete a shift swap before
taking leave, and because he was fired when he did not successfully do so, plaintiff
contends that he was "treated much more harshly than female coworkers who had
attendance problems and were no call/no shows for several days in a row." See id. at 8.
Unfortunately for plaintiff, he offers no admissible evidence to prove his claims of
disparate treatment. References (and citations) to unsworn and unauthenticated
documents pertaining to the discipline of what plaintiff says are similarly situated female
employees, see PI.'s Attach. J, Rhyne Notice of Termination [Dkt. #20-1 at 50], Attach.
K, Walcott Abandonment Letter [Dkt. #20-1 at 55], have no value since those documents
are inadmissible, see PI.'s Opp'n at 7-8; see also Jackson v. Finnegan et. al, 101 F.3d
145,150 (D.C. Cir. 1996) ("Unless the opposing party points to 'affirmative evidence'
showing disputed material facts, the court shall enter summary judgment, if appropriate,
against the adverse party.") (internal citation omitted). Indeed, it is well established that
"[ u]nsworn, unauthenticated documents cannot be considered on a motion for summary
judgment." Akers v. Liberty Mut. Grp.} 744 F. Supp. 2d 92,97 (D.D.C. 2010) (internal
citations omitted);9 see also Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to
Defendant contends, and I agree, that much of plaintiff's "evidence" is, as a matter
10
support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.").
In the same vein, Wilkerson's claims that a female employee requested - and was
granted - vacation but was not asked to first complete a shift swap does not create a
genuine issue where the only documentation supporting the assertion is unauthenticated
and unsworn. See PI.'s Attach. I, Saab Leave Request Form [Dkt. #20-1 at 48]; see also
Akers, 744 F. Supp. 2d at 97. Personal belief, speculation, and hearsay, however, are
simply insufficient to defeat a motion for summary judgment. See, e.g., Robinson-Reeder
v. Am. Council on Educ., 674 F. Supp. 2d 49,52 (D.D.C. 2009). With no actual evidence
of disparate treatment before this Court, there is no reason to analyze - much less endorse
- these aspects of plaintiff's claims. And in any event, plaintiff's own sworn admission-
acknowledging that in other instances, Wackenhut has allowed other male employees to
take time off without requiring them to first complete a shift swap, see Def.' sEx. 1,
Wilkerson Dep. 113: 19-114: 10,232:4-17, greatly undermines Wilkerson's claim of
of law, inadmissible. To wit, plaintiff's Attachments E (Rivera Statement) [Dkt. #20-1 at
37], H (Aponte Statement) [Dkt. #20-1 at 47], I (Saab Leave Request Form) [Dkt. #20-1
at 48], J (Rhyne Disciplinary Record) [Dkt. #20-1 at 50], K (Walcott Disciplinary
Record) [Dkt. #20-1 at 55], are unsworn, irrelevant, and/or hearsay and therefore
inadmissible. See Def.'s Reply at 3-4. As a result, they cannot be considered at summary
judgment. Moreover, to the extent that Wilkerson's declaration (PI.'s Attach. B) and that
of Officer Addy (PI.'s Attach. C), present conclusory beliefs and speculation (not
evidence) and inadmissible hearsay, they are unpersuasive. See Jameson v. Jameson, 176
F.2d 58, 60 (D.C. Cir. 1949) ("Affidavits filed by a party in support of or in opposition to
a motion for summary judgment must present evidence" and should "follow substantially
the same form as though the affiant were giving testimony in court") (internal citation
and quotations omitted); see also Def.'s Reply at 3-4 [Dkt. #21].
11
gender discrimination.
Finally, even if plaintiff's utter lack of evidence were not already fatal to his
claims 10 (which it most certainly is), he is still unable to prove that Wackenhut's
legitimate, non-discriminatory reasons for firing him are pretextual. Plaintiff's mere
suggestion - absent admissible, corroborating evidence - that his personal disagreement
with the characterization of certain facts either creates a genuine issue or permits the
inference of pretext, see generally Pl.'s Opp'n at 15-18, does not make it so. For
example, although plaintiff offers an unsworn statement from Dale Paff (which cites
hearsay from Chief Brown) suggesting that plaintiff did submit the requisite shift-swap
paperwork, see Pl.'s Attach. L, Unsworn and Undated PaffStmt. at 8 [Dkt. #20-1 at 59],
that statement does not create a genuine issue of fact (much less an inference of
discrimination) because it is inadmissible. See Jackson, 101 F.3d at 150. Plaintiff's
unsupported conclusion that "it is clear that in this case Chief Brown made the decision
[to terminate] even before any investigation was conducted" does not prove illegal
animus, either, and is similarly unavailing. See Pl.'s Opp'n at 17; see also, e.g., Pl.'s
Opp'n at 16 (unsupported contention that Chief Brown "fabricated" plaintiff's alleged
admission). Nor can plaintiff establish pretext by contending that Wackenhut could have,
but did not, impose progressive discipline, see Pl.'s Opp'n at 7, 16 - especially when
Wackenhut policy permitted swift and severe punishment for a single "no show," see
10 That is, assuming arguendo that plaintiff could establish a prima facie case of
discrimination. Wackenhut does not concede this point, Def.'s Reply at 9 n.8, and
because Wackenhut asserted a legitimate, nondiscriminatory reason for its action, I "need
not - and should not - decide whether plaintiff actually made out a prima facie case
under McDonnell Douglas." Brady, 520 F.3d at 494 (emphasis in original).
12
Def.'s Mot. for Summ. 1. at 4.
In contrast to plaintiffs conclusory and unsupported assertions, Wackenhut has
offered more than enough evidence to show that it terminated plaintiff for a legitimate
and nondiscriminatory reason: plaintiff did not show up for multiple shifts for which he
was solely responsible. Ultimately, however, Wackenhut prevails because it must only
meet the standard of acting in good faith: "Once the employer has articulated a non-
discriminatory explanation for its action ... the issue is not the correctness or desirability
of [the] reasons offered ... [but] whether the employer honestly believer d] in the reasons
it offers." Fishbach v. D.C Dep't ofCorrs., 86 F.3d 1180,1183 (D.C. Cir. 1996)
(internal citations omitted). Looking at the evidence here, it is clear that Wackenhut
easily meets this standard. Its explanation is as simple as this: then-Regional Manager
Paff attested to his genuine belief - and conclusion, based on the evidence before him at
that time - that plaintiff had abandoned his job. See, e.g., Def.'s Ex. 3, PaffDep. 18:20-
20:10,31:5-32:4,40:12-21,44:9-51:7. Paffinstructed Chief Brown to issue an
abandonment letter, id. at 49: 19-51 :7, which he did. Evidence ofPaffs reasonable and
honest belief that plaintiff abandoned his job far outweighs the tangled web of
unsupported assertions plaintiff weaves to obscure a complete lack of evidence
substantiating his claims. See Vatel v. Alliance ofAuto. Manufs., 627 F.3d 1245, 1248
(D.C. Cir. 2011) (affirming summary judgment for employer because "it is [the
supervisor's] perception that is relevant. Here, the evidence overwhelmingly shows that
[the supervisor] honestly and reasonably believed that their working styles were
incompatible"). Not only does plaintiff himself conceded that Wackenhut "probably did"
13
believe that he had "miss[ed] [his] shift," Def.'s Ex. 1, Wilkerson Dep. 205:10-14 - thus
substantiating, under oath, Wackenhut's nondiscriminatory and legitimate belief - he
offers no evidence to the contrary. Most unsettling, however, and ultimately fatal to his
claims, are Wilkerson's own admission - under oath - that he is not aware of any facts to
support a conclusion that: (1) Paff, Chief Brown, or Lt. Haskins are prejudiced against
men, see Def.'s Ex. 1, Wilkerson Dep. 119:4-11, 169:l3-16, 215:14-18; or (2) "that
Wackenhut terminated [him] because [he is] a man," id. at 107:7-11. Thus, it is no
surprise that plaintiff s claims must, and will, join the ever-growing pantheon of meritless
employment-discrimination claims used as a sword by disgruntled employees in an effort
to leverage yet another opportunity with their former employer. II
CONCLUSION
For all of the foregoing reasons, defendant Wackenhut's Motion for Summary
Judgment [Dkt. #14] is GRANTED. An order consistent with this decision accompanies
this Opinion.
II Because plaintiff does not survive summary judgment, defendant's argument that
this Court can deny relief for any damage or injuries plaintiff sustained beyond June
2010, when Paff discovered that plaintiff lied on his employment application, is moot.
See Def.'s Mot. for Summ. 1. at 14; Def.'s Reply at 14; McKennon v. Nashville Banner
Publ'g Co., 513 U.S. 352, 362-63 (1995) (allowing courts to deny reinstatement, front
pay, and back pay to employee prevailing on an ADEA claim when the employer
presents after-acquired evidence of misconduct "of such severity that the employee in
fact would have been terminated on those grounds alone if the employer had known of it
at the time of the discharge").
14