Brathwaite v. Vance Federal Security Services, Inc. ( 2009 )


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  •                          UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    )
    ENRIQUE BRATHWAITE,           )
    )
    Plaintiff,          )
    )
    v.                       )              Civil Action No. 06-1367 (GK)
    )
    VANCE FEDERAL SECURITY        )
    SERVICES, INC.                )
    )
    Defendant.          )
    ______________________________)
    MEMORANDUM OPINION
    Plaintiff Enrique Brathwaite (“Plaintiff”) brings this action
    against his former employer, Vance Federal Security Services, Inc.
    (“Defendant”), pursuant to Title VII of the Civil Rights Act of
    1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 
    42 U.S.C. § 1981
    .      Plaintiff alleges that Defendant violated Title VII (Count
    I),   
    42 U.S.C. § 1981
        (Count   II),   and   the   public   policy   of
    Washington, D.C. (Count III) by discriminating against him on the
    basis of his race.
    This matter is now before the Court on Defendant’s Motion for
    Summary Judgment [Dkt. No. 9].            Upon consideration of the Motion,
    Opposition, Reply, the entire record herein, and for the reasons
    stated below, Defendant’s Motion is granted.
    I.       Background1
    On or about September 15, 2003, Defendant employed Plaintiff,
    an African-American male, as a security guard and assigned him to
    work at Walter Reed Army Medical Center in Washington, D.C.
    Defendant requires its employees to abide by its “Standards
    of Conduct” policy.      These Standards state that “[a]ssault” is
    “inappropriate” conduct that “can result in any form of discipline,
    up to and including immediate termination, as decided in the
    discretion of Chenega/Vance Federal Security Services.”
    Plaintiff signed the “Standards of Conduct” form on February
    26, 2004.    Def.’s Mot., Ex. B-1.       Plaintiff “acknowledged” that he
    was “required” to comply with these Standards and that if he
    violated them, Vance had the sole power to determine an appropriate
    penalty.
    Between December 2003 and February 2004, Plaintiff was cited
    for the following three disciplinary infractions.2         On December 6,
    1
    Unless otherwise noted, the facts set forth herein are
    undisputed and drawn from the parties’ Statements of Undisputed
    Material Facts submitted pursuant to Local Civil Rule 7(h) and the
    parties’ summary judgment papers.
    2
    Plaintiff does not dispute that he received three
    “counseling forms.”     Pl.’s Response to Def.’s Statement of
    Undisputed Material Facts ¶ 6-8. Defendant uses these counseling
    forms to document disciplinary citations. Plaintiff does dispute
    the underlying allegations described in these counseling forms, but
    offers no evidence that these incidents did not occur. See 
    id.
    Defendant introduced three counseling forms as exhibits. Def.’s
    Mot., Ex. B-1. Two of these forms contain signatures of Counseling
    Officers, and one contains a report by a witness.                 
    Id.
    (continued...)
    2
    2003, he was cited for his “attitude towards the client.”        Def.’s
    Mot., Ex. B-1. On December 18, 2003, he was cited for “Post
    abandonment and unauthorized removal of a firearm from a Post.”
    
    Id.
     The Counseling Official recommended a three-day suspension and
    wrote that “[a]ny further violations of company policies will lead
    to more severe punishment to include possible termination.”         
    Id.
    On February 19, 2004, he was cited for “improperly unloading” his
    weapon inside the security booth.        
    Id.
    On March 13, 2004, Plaintiff was working at the security
    booth at Walter Reed.        An altercation occurred between Plaintiff
    and   another     security    officer,   Shawn   Verdine   (“Verdine”).3
    2
    (...continued)
    Accordingly, the Court may treat as admitted Defendant’s assertion
    that Plaintiff committed three disciplinary infractions. See LcvR
    7(h) (an opposition “shall include references to the parts of the
    record relied on to support the statement” and “the court may
    assume the facts identified by the moving party in its statement of
    material facts are admitted, unless such a fact is controverted in”
    the opposition; see also Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 561 (1992) (“In response to a summary judgment motion,
    however, the plaintiff can no longer rest on such ‘mere
    allegations,’ but must ‘set forth’ by affidavit or other evidence
    ‘specific facts.’”) (quoting Fed. R. Civ. P. 56(e)); Hussain v.
    Nicholson, 
    435 F.3d 359
    , 365 (D.C. Cir. 2006) (“In deciding whether
    there is a genuine issue of material fact, the court must assume
    the truth of all statements proffered by the non-movant except for
    conclusory allegations lacking any factual basis in the record.”)
    (emphasis in original).
    3
    In his Opposition, Plaintiff uses two different spellings
    to refer to this officer: “Verdine” and “Verdini.” Compare Pl.’s
    Opp’n at 1 with Pl.’s Opp’n at 7.     Defendant consistently uses
    “Verdine.” See, e.g., Def.’s Mot. at 3. Accordingly, “Verdine”
    will be used hereinafter.
    3
    Plaintiff states that Verdine started the fight, and Verdine states
    that Plaintiff started it. According to Plaintiff, Verdine spit on
    him twice during the fight. Pl.’s Opp’n at 4.
    Three other security officers were present: William Collins
    (“Collins”), Melvin Blassingame (“Blassingame”), and Joseph Barnett
    (“Barnett”). Verdine is Caucasian. Collins, Blassingame, Barnett,
    and Plaintiff are African American.
    After the fight, Plaintiff went to the Provost Marshall’s
    office to report the incident to his supervisors, Lieutenant
    Charles     Green     (“Green”)   and    Lieutenant      Gloria    Williams
    (“Williams”).    He arrived at the office with liquid on his face and
    stated that Verdine had spit on him.        Pl.’s Mot. at 4.       In their
    Incident Reports, Barnett and Blassingame both stated that they did
    not see Verdine spit on Plaintiff.         Def.’s Mot., Ex. F.       Thomas
    Sittner (“Sittner”), Project Manager and Chief of Guards, stated
    that Brathwaite had liquid on his face, but that he did not believe
    that the liquid was Verdine’s spit.        See 
    id.,
     Ex. E.
    On the same day, March 13, 2004, Green began investigating
    the fight and took statements from Blassingame and Barnett.4             Both
    witnesses    stated   that   Plaintiff   started   the   fight.5    In   his
    4
    The record does not indicate why Collins did not provide a
    statement.
    5
    Although Plaintiff concedes that “an investigation was
    conducted and statements were taken,” he “denies the remaining
    allegations.”  Pl.’s Response to Def.’s Statement of Undisputed
    (continued...)
    4
    Incident Report, Barnett stated that “Brathwaite pushed Verdine
    first and then Verdine pushed Brathwaite.”       
    Id.,
     Ex. F.    He also
    stated that he thought that Brathwaite “went out of his way to have
    a confrontation with Verdine.”     
    Id.
    Blassingame provided a similar description in his Incident
    Report where he stated that “out of my peripheral vision, [I saw]
    Verdine fall forward and then he turned and pushed Brathwaite.”
    
    Id.
       He also stated that he heard Verdine say, “Don’t push me.”
    
    Id.
    After this investigation, Green and Williams each wrote a
    report.     Green stated that “Brathwaite shoved Verdine from behind
    and Verdine had a spontaneous reaction shoving Brathwaite causing
    [sic] Brathwaite to stumble.” Pl.’s Opp’n, Ex. 5. Green concluded
    that “each officer should be suspended for a lengthy period and
    Brathwaite reassigned to another post.”    
    Id.
       Williams stated that
    “Mr. Brathwaite and Mr. Verdine were both wrong.           Ones [sic]
    punishment should be no more than the other.”     
    Id.,
     Ex. 6.   Neither
    5
    (...continued)
    Material Facts ¶ 12. This denial is unclear because it could refer
    to two different assertions: first, the assertion that Blassingame
    and Barnett provided statements indicating that Plaintiff had
    started the fight or second, the assertion that Plaintiff started
    the fight. For the first assertion, Plaintiff provides no contrary
    evidence, whereas Defendant provided signed statements from Barnett
    and Blassingame. Compare Def.’s Mot., Ex. F with Pl.’s Response to
    Def.’s Statement of Undisputed Material Facts ¶ 12 (denying the
    “remaining allegations,” but providing no citations to corroborate
    the denial).         Accordingly, this assertion may be treated as
    admitted. See supra note 2 (citing Lujan and Hussain). As to the
    second assertion, Plaintiff disputes it.
    5
    Green nor Williams actually observed the fight.
    On March 18, 2004, Sittner conducted his own investigation.
    The investigation included a review of the videotape footage of the
    incident6 and two interviews with Plaintiff.                 It also included
    interviews of the other security guards on duty, Walter Reed police
    officers, and bystanders.        During the course of the investigation,
    Barnett and Blassingame told Sittner that he saw Brathwaite push
    Verdine from behind, and Blassingame told Sittner that he witnessed
    Verdine “go forward” and then heard him say, “Don’t push me.”
    At   the   conclusion   of   the   investigation,     he   prepared   a
    Memorandum     on    his   findings   and   sent   it   to   Timothy   McManus
    (“McManus”), the Operations Manager.7          In this Memorandum, Sittner
    wrote,
    I believe that Officer Brathwaite was the aggressor in
    this matter. I also believe that he has lied in his
    statements. They are not consistent and he refused to
    sign the statement that I took from him.          Most
    compelling are the statements from Barnett and
    Blassingame.     Barnett witnessed Brathwaite push
    Verdine first and Blassingame heard Verdine say,
    “don’t push me,” just before he heard the noise of
    Brathwaite falling.      This type of spontaneous
    utterance is a clear indication that Verdine had been
    6
    According to the letter Sittner wrote to Operations Manager
    Timothy McManus, the videotape footage “supports portions of each
    officer’s account of the incident,” but it “does not show the
    assault by either officer and there is no audio of the incident.”
    Def.’s Mot., Ex. D.
    7
    In Plaintiff’s Response to Def.’s Statement of Undisputed
    Material Facts, Plaintiff disputed the “conclusions reached in the
    report,” but does not dispute that the report stated these
    conclusions. See ¶ 19.
    6
    pushed and         was       reacting   instead    of    being   the
    aggressor.
    Def.’s Mot., Ex. D.            Based on his findings, Sittner recommended
    that Defendant terminate Plaintiff.
    McManus reviewed Sittner’s Memorandum.                  He concurred with
    Sittner’s recommendation and authorized the termination.                        At the
    time he made the decision to terminate Plaintiff, McManus had never
    met Plaintiff and did not know his race.
    On March 24, 2004, Plaintiff was informed of his termination.
    On April 12, 2004, Defendant hired Norris Hercules, an African
    American, to replace Plaintiff.
    On    November     16,   2004,     Defendant   terminated    Verdine      and
    another officer who were involved in a fight.
    Plaintiff     filed      a    discrimination   charge     with   the    Equal
    Employment Opportunity Commission (“EEOC”).8
    In a letter dated February 21, 2006, the EEOC dismissed the
    charge        and   found    that       “[d]ue   to   the   lack     of   evidence,
    discriminatory practices cannot be established.”9 Def.’s Mot., Ex.
    8
    The filing date is disputed. See infra III.A.                      Plaintiff
    states that he filed the claim on September 4, 2004.                      Defendant
    states that he filed the claim on April 28, 2005.
    9
    Plaintiff denies these assertions in his Response to Def.’s
    Statement of Undisputed Material Facts.    See Pl.’s Response to
    Def.’s Statement of Undisputed Material Facts ¶ 32. However, he
    produced no evidence showing that the EEOC did not make these
    statements in its February 21, 2006 letter. See generally id. In
    contrast, Defendant attached a date-stamped copy of this letter to
    his Motion. See Def.’s Mot., Ex. B-2. Accordingly, the Court may
    (continued...)
    7
    B-2.
    On or about May 18, 2006, Plaintiff instituted this action
    in the Superior Court of the District of Columbia.               On August 1,
    2006, Defendant filed a Notice of Removal in this Court.
    II.        Standard of Review
    Summary judgment may be granted “only if” the pleadings, the
    discovery and disclosure materials on file, and any affidavits show
    that there is no genuine issue as to any material fact and that the
    moving party is entitled to judgment as a matter of law.              See Fed.
    R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United
    States, 
    473 F.3d 329
    , 333 (D.C. Cir. 2006).              In other words, the
    moving party must satisfy two requirements:              first, demonstrate
    that there is no “genuine” factual dispute and, second, that if
    there is it is “material” to the case.           “A dispute over a material
    fact is ‘genuine’ if ‘the evidence is such that a reasonable jury
    could return a verdict for the non-moving party.’” Arrington,
    (quoting      Anderson   v.   Liberty   Lobby,   Inc.,   
    477 U.S. 242
    ,   248
    (1986)).       A fact is “material” if it might affect the outcome of
    the case under the substantive governing law.             Liberty Lobby, 
    477 U.S. at 248
    .
    In its most recent discussion of summary judgment, in Scott
    v. Harris, 
    550 U.S. 372
    , 380 (2007), the Supreme Court said,
    9
    (...continued)
    treat this fact as admitted.        See supra note 2.
    8
    [a]s we have emphasized, “[w]hen the moving party has
    carried its burden under Rule 56(c), its opponent must
    do more than simply show that there is some
    metaphysical doubt as to the material facts. . . .
    Where the record taken as a whole could not lead a
    rational trier of fact to find for the nonmoving
    party, there is no ‘genuine issue for trial.’”
    Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
    
    475 U.S. 574
    , 586-87 . . . (1986) (footnote omitted).
    “[T]he mere existence of some alleged factual dispute
    between the parties will not defeat an otherwise
    properly supported motion for summary judgment; the
    requirement is that there be no genuine issue of
    material fact.” Liberty Lobby, 
    477 U.S. at 247-48
    .
    However, the Supreme Court has also consistently emphasized
    that “at the summary judgment stage, the judge’s function is not .
    . . to weigh the evidence and determine the truth of the matter,
    but to determine whether there is a genuine issue for trial.”
    Liberty Lobby, 
    477 U.S. at 248, 249
    .     In both Liberty Lobby and
    Reeves v. Sanderson Plumbing Products, Inc., 
    530 U.S. 133
    , 150
    (2000),   the   Supreme    Court   cautioned   that     “[c]redibility
    determinations, the weighing of the evidence, and the drawing of
    legitimate inferences from the facts, are jury functions, not those
    of a judge” deciding a motion for summary judgment. Liberty Lobby,
    
    477 U.S. at 255
    .   “To survive a motion for summary judgment, the
    party bearing the burden of proof at trial . . . must provide
    evidence showing that there is a triable issue as to an element
    essential to that party’s claim. See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986).”    Arrington, 
    473 F.3d at 335
    .
    9
    III.    Analysis
    A.       There is a Genuine Issue of Fact About                  Whether
    Plaintiff’s Title VII Claim is Time-Barred
    A Title VII claim is time barred if it is not filed within
    180 days after the “alleged unlawful employment practice.”                  42
    U.S.C. § 2000e-5(e)(1).           If a plaintiff “initially instituted
    proceedings with a State or local agency with authority to grant or
    seek relief from such practice,” then he is permitted 300 days to
    file his claim.       Id.    When a plaintiff fails to file his claim
    within the applicable time period, a court may grant summary
    judgment for the defendant.        Washington v. Washington Metro. Area
    Transit Auth., 
    160 F.3d 750
    , 752 (D.C. Cir. 1998).
    Defendant argues that Plaintiff’s Title VII claim is barred
    by the statute of limitations because it was filed on April 28,
    2005, 400 days after Defendant terminated him on March 24, 2004.
    In response, Plaintiff argues that Defendant is incorrect and that
    he filed the claim on September 4, 2004.
    To corroborate his argument, Plaintiff submits five documents
    as     attachments    to    his   Opposition:     a   “Charge    Information
    Questionnaire”; a “Continuation Answer Sheet”; a March 9, 2005
    letter from the EEOC’s Washington Field Office; a February 17, 2005
    letter from the EEOC’s Baltimore District Office; and an email from
    an Intake Supervisor.        Pl.’s Opp’n, Ex. 10.          The Questionnaire
    includes    a    hand-written     date    of   September   4,   2004.      The
    accompanying “Continuation Answer Sheet” uses the same date in
    10
    typed form.       
    Id.
        The Baltimore District Office EEOC letter is
    date-stamped February 17, 2005.                   
    Id.
         This letter states that
    Plaintiff’s case is being transferred to the Washington Field
    Office.    
    Id.
    Plaintiff argues that the Questionnaire and the Continuation
    Sheet establish that he filed the claim within the prescribed
    filing    period.       Pl.’s      Opp’n    at    13.          He   explains   that     the
    discrepancy between the original filing date of September 4, 2004
    and the date cited by Defendant -- April 28, 2005 -- resulted from
    his case being transferred twice: once from the EEOC’s Washington
    Field Office to Baltimore and then again when the EEOC transferred
    the case back to Washington.                
    Id.
           Defendant responds that the
    hand-dated form only “purport[s]” to show that he filed his claim
    on the earlier date.         Def.’s Reply at 7.
    The   Questionnaire       and     the    Continuation         Sheet   show    that
    Plaintiff      submitted     his   claim     within       the       filing   period,   and
    Defendant      cites    to   no    statute       or     case    law    stating   that    a
    handwritten date is not sufficient to raise an issue of material
    fact.     In addition, the date-stamped letter of February 17, 2005
    corroborates Plaintiff’s assertion that the discrepancy in dates
    resulted from the transfer of the case between the Baltimore and
    Washington EEOC offices.
    For these reasons, the Questionnaire and the Continuation
    Sheet raise a genuine issue of material fact about the date that
    11
    Plaintiff filed his claim.             Cf. Colbert v. Potter, 
    471 F.3d 158
    ,
    166-67 (D.C. Cir. 2006) (affirming a grant of summary judgment when
    the court determined that “it would be patently unreasonable” to
    “infer”     that     the   plaintiff    had   timely    filed   his   complaint).
    Therefore summary judgment cannot be granted on that ground.
    B.        Plaintiff   Has          Not    Raised     an     Inference      of
    Discrimination10
    Discrimination claims pursuant to Title VII are analyzed
    under the McDonnell Douglas burden shifting framework.                  Ginger v.
    District of Columbia, 
    527 F.3d 1340
    , 1344 (D.C. Cir. 2008) (citing
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973)); see Hawkins
    v. Holder, 
    597 F. Supp. 2d 4
    , 16-17 (D.D.C. 2009).
    Our Court of Appeals recently held that, when considering a
    motion for summary judgment in an employment discrimination case in
    which the employer has offered a legitimate, non-discriminatory
    reason for its actions, a district court need not consider whether
    a plaintiff has satisfied the elements of a prima facie case.
    Brady v. Office of the Sergeant at Arms, 
    520 F.3d 490
    , 494 (D.C.
    Cir. 2008).
    Instead,    “‘the   district    court   must    resolve     one   central
    10
    As Defendant states in its Motion, “[r]ace discrimination
    claims under Section 1981 are governed by the same evidentiary
    framework applicable to Title VII race discrimination claims.”
    Def.’s Mot. at 9 (citing Carney v. Am. Univ., 
    151 F.3d 1090
    , 1092-
    93 (D.C. Cir. 1998) (using the McDonnell Douglas framework to
    analyze a Section 1981 claim)). Accordingly, the analysis in this
    section applies to the Section 1981 claim (Count II) as well as to
    the Title VII claim (Count I).
    12
    question: has the employee produced sufficient evidence for a
    reasonable   jury   to   find   that      the   employer’s      asserted   non-
    discriminatory reason was not the actual reason’ for the adverse
    employment   actions,     and   that      the   employer’s      actions    were
    discriminatory.”    Daniels v. Tapella, 
    571 F. Supp. 2d 137
    , 143
    (D.D.C. 2008) (quoting Brady, 
    520 F.3d at 494
    ).           In other words, a
    court must determine whether “all the evidence, taken together, was
    insufficient to support a reasonable inference of discrimination.”
    Jones v. Bernanke, 
    557 F.3d 670
    , 678 (D.C. Cir. 2009) (citing
    Brady, 
    520 F.3d at 494-495
    ); see also Holcomb v. Powell, 
    433 F.3d 889
    , 896-97 (D.C. Cir. 2006) (“[T]he plaintiff must show that a
    reasonable jury could conclude from all of the evidence that the
    adverse   employment     decision    was    made    for   a     discriminatory
    reason.”)(citations omitted).
    In this case, Defendant argues that it had a legitimate,
    nondiscriminatory reason for firing Plaintiff: he violated the
    company’s “rule against physical assaults.” Def.’s Mot. at 14. In
    response, Plaintiff argues that Defendant’s reason is a pretext
    that “mask[s] unlawful discrimination.”            Pl.’s Opp’n at 7.
    Because Defendant has cited Plaintiff’s violation of its
    “rule     against   physical        assaults”       as    its      legitimate,
    nondiscriminatory reason for terminating him, it is not necessary
    to determine whether Plaintiff has made out a prima facie case.
    Instead, the Court must decide the ultimate question: whether “all
    13
    the   evidence,    taken     together,    was    insufficient          to    support    a
    reasonable inference of discrimination.”              Jones, 
    557 F.3d at 678
    (citations omitted).
    Our Court of Appeals has specified that “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 that may be available to the
    plaintiff,     such     as    independent       evidence     of        discriminatory
    statements or attitudes on the part of the employer.” Holcomb, 
    433 F.3d at
    897 (citing Aka v. Wash. Hosp. Ctr., 
    156 F.3d 1284
    , 1289
    (D.C.   Cir.    1998)    (en    banc)).         The   Court       of    Appeals     has
    “consistently declined to serve as a super-personnel department
    that reexamines an entity’s business decisions.” Holcomb, 
    433 F.3d at 897
     (internal citations and quotation marks omitted).
    A   plaintiff   may    show    discrimination      either        directly      or
    indirectly.    George v. Leavitt, 
    407 F.3d 405
    , 413 (D.C. Cir. 2005)
    (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 256
    (1981)); see also Hawkins, 
    597 F. Supp. 2d at 17
    .                           Evidence is
    direct if it shows that a “discriminatory reason more likely
    motivated    the   employer.”         George,   
    407 F.3d at 413
        (internal
    citations and quotation marks omitted). Evidence is indirect if it
    shows that “the employer’s proffered explanation is unworthy of
    credence.”     
    Id.
     (internal citations and quotation marks omitted).
    14
    Plaintiff      offers   no    direct    evidence      of   discrimination.
    Instead, he argues that Defendant’s reason for terminating him is
    a pretext that “mask[s] unlawful discrimination.”                    Pl.’s Opp’n at
    7. There are two ways to show that a nondiscriminatory explanation
    was false.        First, a plaintiff may show that “the employer is
    making up or lying about the underlying facts that formed the
    predicate for the employment decision.”                Brady, 
    520 F.3d at 495
    (citations omitted). Second, a plaintiff may show that a similarly
    situated employee was treated more favorably.                  Id.
    1.       Plaintiff Has Not Shown that Defendant Lied About
    the Underlying Facts
    Plaintiff      first    argues    that     Defendant’s          “reasons    for
    terminating Mr. Brathwaite are unworthy of credence.”                      Pl.’s Opp’n
    at 13.    He argues that Verdine “assaulted Mr. Brathwaite at least
    once” and the “fact that Vance did not discipline Verdine at all
    shows that its action against Mr. Brathwaite was discriminatory.”
    Id. at 11, 13.
    In response, Defendant states that it decided to terminate
    Plaintiff    because      its    “thorough      investigation”       concluded      that
    Plaintiff was at fault.          Def.’s Mot. at 16.       In its investigation,
    Defendant    relied      on    two   witnesses,    both   of      whom    are   African
    American as is Plaintiff, who stated that Plaintiff started the
    fight.      Id.    at    15.     The    investigation       also     concluded      that
    Plaintiff’s statements were “inconsistent.”                 Id.     Defendant argues
    that in light of this evidence, Plaintiff cannot show that its
    15
    reason for terminating Plaintiff was a “phony” one.    Id. at 16.
    As our Court of Appeals stated in George, “an employer’s
    action may be justified by a reasonable belief in the validity of
    the reason given even though that reason may turn out to be false.”
    George, 
    407 F.3d at
    415 (citing Fischbach v. D.C. Dep’t of Corr.,
    
    86 F.3d 1180
    , 1183 (D.C. Cir. 1996)).   In other words, a defendant
    “could prevail on its motion for summary judgment . . . if it were
    able to demonstrate the absence of a genuine dispute in the record
    over whether [it] honestly and reasonably believed” in its given
    reason.   Id.; see also Forrester v. Rauland-Borg Corp., 
    453 F.3d 416
    , 419 (7th Cir. 2006) (Posner, J.) (“A pretext . . . is a
    deliberate falsehood. An honest mistake, however dumb, is not, and
    if there is no doubt that it is the real reason it blocks the case
    at the summary-judgment stage.”) (citations omitted).
    The Eighth Circuit emphasized the same principle in a recent
    age discrimination case that is strikingly similar to the one now
    before this Court.   In Hitt v. Harsco Corp., 
    356 F.3d 920
    , 924 (8th
    Cir. 2004), a plaintiff was terminated because he was fighting. He
    argued that there was a genuine issue of fact about whether he was
    “actually fighting.”   
    Id.
       In affirming the district court’s grant
    of summary judgment for the defendant, the court held that the “key
    question in a discrimination case like this one is not whether [the
    plaintiff] was truly fighting, but whether the employer really
    believed that he was fighting, such that the termination was based
    16
    on   a        non-discriminatory       reason.”      
    Id.
       (emphasis      in   original;
    citations omitted).
    The Eighth Circuit concluded that the district court properly
    granted         summary     judgment    for    the    defendant     because     it   was
    “undisputed”         that    witnesses     reported        that   the    plaintiff   was
    fighting, even if the plaintiff “could now show that the witnesses
    were wrong in what they reported about the altercation.”                         
    Id. at 924-25
    .
    Accordingly, in this case, the relevant issue is not whether
    Plaintiff did in fact initiate the fight, but rather whether
    Defendant         “honestly     and    reasonably      believed”        that   Plaintiff
    initiated the fight.11           Defendant conducted an investigation into
    the fight, and the investigation concluded that “Brathwaite was the
    aggressor in this matter” and that he “has lied in his statements.”
    Def.’s Mot. at 4-5; see also 
    id.,
     Ex. E (Sittner Deposition) (“[A]t
    that point, I determined that [Plaintiff] was the aggressor, that
    he was lying in the course of the investigation”).                         During this
    investigation, two witnesses informed Defendant that Plaintiff
    initiated the fight.           Id. at 15; see also id., Ex. F (Blassingame
    and Barnett Incident Reports). Although they also saw Verdine push
    Plaintiff, both witnesses believed that the fight was initiated by
    Brathwaite.          See, e.g., id., Ex. F (“Brathwaite pushed Verdine
    11
    As a result, it is also unnecessary to determine whether
    Verdine spit on Plaintiff.
    17
    first     and    then    Verdine   pushed       Brathwaite   who     fell    into   the
    watercooler.”).
    Defendant      introduced      evidence    that    shows    that    McManus
    concurred with these conclusions and used them as the basis for
    terminating Plaintiff.          Def.’s Mot, Ex. C (“Verdine did not appear
    to be the aggressor in the matter”); see id. (the reason for
    terminating Plaintiff was “assaulting another security officer,
    based on the investigation”).              In addition, McManus did not know
    Plaintiff’s race,         Def.’s Mot. at 17, and thus could not have used
    race as a reason for terminating him.
    In contrast, Plaintiff has provided no evidence to show that
    Defendant did not honestly and reasonably believe that it was
    terminating Plaintiff because he had initiated the fight with
    Verdine.12
    For these reasons, no reasonable juror could conclude that
    Defendant        did    not   honestly    and     reasonably   believe       that   it
    terminated Plaintiff because he initiated the fight.
    2.      Plaintiff Has Not Shown that a Similarly Situated
    Employee Was Treated More Favorably
    Plaintiff next argues that Defendant’s reason is a pretext
    because Verdine was a similarly situated employee who was treated
    “better” than Plaintiff. Pl.’s Opp’n at 11. Plaintiff argues that
    Plaintiff and Verdine were similarly situated because they were
    12
    Nor did Plaintiff ever make such an argument in his
    Opposition.
    18
    “involved in the same incident with the same people in charge of
    investigating the incident . . . the same person in charge of
    recommending disciplinary action . . . and the same person in
    charge of issuing the disciplinary action.”               Id. at 12.
    In response, Defendant argues that the employees were not
    similarly situated because its investigation found that Plaintiff,
    and not Verdine, was responsible for initiating the altercation.
    It also argues that Verdine was not treated favorably because it
    subsequently    terminated    Verdine      when    he    was   involved   in    an
    unrelated fight in November 2004.              Def.’s Mot. at 17, Ex. G.
    Plaintiff argues that this latter incident is “distinguishable”
    because   Sittner    and    McManus     were      not    “involved     with    the
    investigation   of   this    other    incident     or    Vance’s   decision     to
    terminate Verdine.”    Pl.’s Opp’n at 12.
    Employees are similarly situated only if “all of the relevant
    aspects” of their employment situations are “nearly identical.”
    McFadden v. Ballard, et al., 
    580 F. Supp. 2d 99
    , 109 (D.D.C. 2008)
    (quoting Neuren v. Adduci, Mastriani, Meeks, & Schill, 
    43 F.3d 1507
    , 1514 (D.C. Cir. 1995)); see also Brady, 
    520 F.3d at 495
    (employees are similarly situated if they share “the same factual
    circumstances”).     If no reasonable juror could conclude that two
    employees were similarly situated, then a court may find they were
    not similarly situated as a matter of law.              See George, 
    407 F.3d at 414-15
    ; see also Banks v. District of Columbia, 
    498 F. Supp. 2d 19
    228, 234 (D.D.C. 2007).
    Here, Sittner conducted an investigation and concluded that
    Plaintiff had initiated the fight.                McManus concurred with the
    results of the investigation.                 Two witnesses stated in their
    Incident Reports that Plaintiff was the aggressor in the fight.
    Thus, Plaintiff and Verdine were not similarly situated because
    several        relevant   aspects   of   their   employment     situations        were
    distinguishable. Moreover, Verdine was not treated more favorably.
    Defendant       terminated    Verdine    when    it   found   him   at    fault   for
    fighting in a later incident.13
    In    addition,    comparing    the     two   employees        shows    that
    Defendant’s nondiscriminatory reason for terminating Plaintiff was
    not a pretext that masks discrimination.                  Defendant terminated
    Plaintiff, an African-American employee, when its investigation
    found him at fault for fighting. It terminated Verdine, a Causasan
    employee, when its investigation found him at fault for fighting.
    In comparing these two incidents, it is clear that the relevant
    factor distinguishing the treatment of the two employees was not
    their race.        In both cases, the relevant factor was the employee’s
    role in the fight.           In each case, it terminated the employee it
    found at fault for fighting.
    13
    Plaintiff has not explained the relevance of his assertion
    that Sittner and McManus participated in one investigation but not
    the other.    This assertion offers no support for Plaintiff’s
    argument that he and Verdine were similarly situated but treated
    differently.
    20
    For these reasons, Plaintiff has presented no evidence that
    would   allow   a   reasonable   juror   to   conclude   that   Verdine   was
    similarly situated to Plaintiff but treated favorably.
    C.      Plaintiff Did Not State a Valid Cause of Action for
    Termination in Violation of D.C. Public Policy
    Finally, Defendant argues that Plaintiff “cannot state a
    cause of action for termination in violation of public policy.”
    Def.’s Mot. at 18.
    Plaintiff argues that an employee can bring a wrongful
    discharge claim under the District of Columbia’s “public policy
    exception to the employment-at-will doctrine.”           Pl.’s Opp’n at 14.
    Plaintiff alleges that he was fired because he “reported matters of
    public concern.”      Pl.’s Opp’n at 14.
    This exception to the at-will doctrine is a “very narrow” one
    in the District of Columbia.       See Owens v. Nat’l Med. Care, Inc.,
    
    337 F. Supp. 2d 131
    , 137 (D.D.C. 2004) (citations omitted).                An
    employee states a claim for wrongful discharge in violation of
    public policy when he alleges that “(1) he engaged in a protected
    activity . . . (2) the employer took an adverse personnel action
    against him; and (3) there was a causal connection between the
    two.”   Owens, 
    337 F. Supp. 2d at 137
     (citations omitted); see Pl.’s
    Opp’n at 14.        A causal connection exists only if the protected
    activity was the “sole reason” for the adverse personnel action.
    Owens, 
    337 F. Supp. 2d at 141
     (emphasis in original) (citing Carl
    v. Children’s Hosp., 
    702 A.2d 159
    , 160 (D.C. 1997)); Pl.’s Opp’n at
    21
    14.
    In this case, as discussed supra III.B, Defendant introduced
    substantial evidence to show that it terminated Plaintiff because
    it determined that he was the aggressor in the fight with Verdine.
    It made this determination after an investigation that included
    statements by two employees who witnessed the fight.                See supra
    III.B.      Plaintiff has provided no evidence showing that any other
    reason motivated Defendant. Accordingly, no reasonable juror could
    conclude      that   protected    activity    was   the   “sole”   reason    for
    Plaintiff’s termination.14
    IV.        Conclusion
    For the reasons set forth above, Defendant’s Motion for
    Summary      Judgment   is   granted.    An   Order   shall   accompany     this
    Memorandum Opinion.
    /s/
    May 11, 2009                     Gladys Kessler
    United States District Judge
    Copies via ECF to all counsel of record
    14
    In addition, there is little reason to doubt the validity
    of Defendant’s argument that Plaintiff did not engage in protected
    activity.
    22
    

Document Info

Docket Number: Civil Action No. 2006-1367

Judges: Judge Gladys Kessler

Filed Date: 5/11/2009

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (27)

Reeves v. Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097 ( 2000 )

Owens v. National Medical Care, Inc. , 337 F. Supp. 2d 131 ( 2004 )

Jones v. Bernanke , 557 F.3d 670 ( 2009 )

Cathy S. NEUREN, Appellant, v. ADDUCI, MASTRIANI, MEEKS & ... , 43 F.3d 1507 ( 1995 )

Etim U. Aka v. Washington Hospital Center , 156 F.3d 1284 ( 1998 )

Scott v. Harris , 127 S. Ct. 1769 ( 2007 )

Brady v. Office of the Sergeant at Arms , 520 F.3d 490 ( 2008 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Texas Department of Community Affairs v. Burdine , 101 S. Ct. 1089 ( 1981 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Hawkins v. Holder , 597 F. Supp. 2d 4 ( 2009 )

Daniels v. Tapella , 571 F. Supp. 2d 137 ( 2008 )

Carl v. Children's Hospital , 1997 D.C. App. LEXIS 235 ( 1997 )

Colbert, Venita v. Potter, John E. , 471 F.3d 158 ( 2006 )

Ray Forrester v. Rauland-Borg Corporation , 453 F.3d 416 ( 2006 )

William Hitt v. Harsco Corporation , 356 F.3d 920 ( 2004 )

Carney, Darion M. v. Amer Univ , 151 F.3d 1090 ( 1998 )

McFadden v. Ballard, Spahr, Andrews, & Ingersoll, LLP , 580 F. Supp. 2d 99 ( 2008 )

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