Kouba v. Omni Hotels Corporation ( 2011 )

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KIM KOUBA
Plaintiff,
v.
Civil Action No. 8-cv-2106 (RLW)
OMNI HOTELS MANAGEMENT
CORPORATION
Defendant.
MEMORANDUM OPINION
In the instant action, Plaintiff Kim Kouba, who is a lesbian, challenges her termination
from employment by Defendant Omni Hotels. Kouba brings this claim pursuant to the District
of Columbia Human Rights Act, which prohibits discrimination based on, inter alia, gender and
sexual orientation. See D.C. Code § 2-1402.11(a)(1) (2001). Jurisdiction is based upon diversity
of the parties. 1 (Minute order Jan. 8, 2009; see Doc. 8.)
Presently before the Court is Omni’s motion for summary judgment. (Doc. 18.) For the
reasons explained below, Omni’s motion shall be granted.
1
In addition to her Human Rights Act claims, Kouba originally asserted claims pursuant
to the D.C. Payment and Collection of Wages Act, D.C. Code § 32-1303. However, on August
27, 2009, Kouba voluntarily dismissed her Section 32-1303 claims. (See Doc. 17.)
1
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
FACTS 2
Omni hired Kouba as Director of Finance for its Washington, D.C. location in September,
2007. 3 As finance director, Kouba was a member of the executive committee, which includes the
top leaders and directors of the hotel. Kouba was responsible for supervising all financial
operations at the hotel. Accordingly, Kouba was privy to employee salary information and she
was responsible for maintaining such information in confidence. (Kouba Dep. at. 62-63, 65, 69.)
Her efforts to do so included keeping salary and other financial information under lock and key,
as well as password protecting financial computer data. (Id. at 65 - 66.) Additionally, when
providing budgets to mid-level managers (i.e, non-executive committee members), Kouba was
instructed to block out managers’ salary information, so as not to disclose such information
outside each department. (Kouba Dep. at 76.)
As Director of Finance, Kouba reported directly to hotel manager Tracy DiFulgo, who
gave Kouba a good performance evaluation in May 2008. Not only did her evaluation show
Kouba met or exceeded expectations, but with respect to her ability to maintain confidences,
2
Kouba offers several objections to the declaration of Joy Rothschild, Vice President of
Human Resources, upon which Omni relies in part. (See Pl’s Response to Def.’s Undisputed
Facts at p. 4-5.) Omni responded to Kouba’s objections by attaching to its reply brief a
“corrected” declaration from Rothschild. (See Doc. 25, Ex. C.) Kouba then filed a sur-reply
brief renewing some of her objections. (See Doc. 26.) Because the Court did not need to
consider Rothschild’s Declaration in reaching its decision on Omni’s motion, the Court declines
to reach the issues raised by the parties with respect to the Rothschild declarations.
3
The witnesses use the titles “Director of Finance” and “Controller” interchangeably.
(Combs Dep. at 10-11.)
2
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
DiFulgo noted Kouba exhibited “extremely high integrity and trust.” (Pl.’s Ex. 8.) On June 16,
2008, Ann Peterson became the Omni General Manager, but Kouba continued to report directly
to DiFulgo.
Omni terminated Kouba several months later, on or around September 5, 2008, after an
investigation into a sexual harassment complaint revealed that Kouba had disclosed confidential
salary information about two Omni hotel employees to a third employee, Jaclyn Stone. (See Pl.’s
Ex. 7.) Stone was an Omni employee who was temporarily working at the D.C. Omni as a “task
force member” under the direct supervision of Kouba. (Kouba Dep. at pp. 105-6.)
Although hotel manager DiFulgo had previously explained to Kouba that General
Manager Peterson did not care for managers going out and drinking with subordinate employees,
Kouba was not told to refrain from doing so. (Kouba Dep. at 89, 204-5.) On August 21, 2008,
Stone and Kouba went to an offsite bar where the two had drinks and exchanged text messages. 4
(Doc. 24, Pl’s Response to Def.’s Undisputed Facts at p. 10; Pl.’s Ex. 3, Kouba Decl. ¶ 7.)
Kouba testified she was not interested in Stone romantically, but instead Kouba claimed that she
was considering hiring Stone to help solve some finance department problems that had surfaced
during a prior audit. (Kouba Dep. at 110, 196.) According to Stone, she had no interest in a
position at the Washington location; rather Kouba kept “pushing” the idea on Stone. (Stone
Decl. ¶ 8.) During a text message exchange about the salary Stone would seek if she sought a
4
Defendant indicates in its brief that the incident occurred in August 2009 and Kouba
agrees this fact is undisputed. (See Def.’s Statement of Facts # 15; Pl’s Response to Def.’s
Undisputed Facts at p. 10.) Because Kouba’s termination letter is dated September 2008, it
appears the relevant interactions between Kouba and Stone occurred in 2008. (See Pl.’s Ex. 7.)
3
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
position, Kouba admittedly disclosed the salaries of two employees: credit manager Jackie Picket
and Assistant Director of Finance Lauren Burke:
Why that number out of curiosity? But yes . . . Jackie at [redacted ] . . . underpaid
as well. Lauren at [redacted].
(Doc. 18, Def.’s Ex. I, DEF000373, Pl’s Response to Def.’s Undisputed Facts at p. 11.)
During the course of the week after the disclosure, Kouba and Stone socialized
approximately four additional times outside of work. (Kouba Dep. at 106.) In the aftermath of
these interactions, Stone contacted Human Resources and reported that Kouba’s conduct made
Stone uncomfortable. (Stone Decl. ¶¶ 9-10.)
As a result of Stone’s complaint, Vice President of Human Resources Henry Tebbe
contacted Kouba, who was attending an out-of-town conference, and questioned her about
Stone’s sexual harassment allegations. (See Kouba Dep. at 158.) At some point, Tebbe asked
Kouba if she had disclosed salary information to Stone. Kouba first said she had not, but later
remembered she had done so. (Kouba Dep. at 160 - 61.) Kouba also told Tebbe that the
disclosure was a mistake because she ultimately realized Stone was not serious about pursuing a
position with the D.C. Omni location. (Kouba Dep. at 161, 204.) When Tebbe shared the results
of the investigation (which were inconclusive) with Peterson, she found out about the salary
disclosures and ultimately decided to terminate Kouba. (Peterson Dep. at 42, 55.)
Around this same time, on Labor Day Sunday, August 31, 2008, Kouba returned from her
conference and attempted to gain access to her office, but found the locks had been changed.
4
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
Kouba contacted Peterson and DiFulgo asking if they could “please explain how I may obtain
access to my office as it appears that my office door lock has been changed.” (Pl.’s Ex. 6.) In
response, Peterson admonished Kouba to “Please check the tone of your email I will see you tues
you can get in then.” (Id.) When asked what her email meant, Peterson testified “my
interpretation was that I was being challenged as to why the office door wasn’t working.”
(Peterson Dep. at 66.) When asked if she found the Kouba email offensive, Peterson testified
“At the time I was. . . . I was disappointed that somebody that was in her role, somebody that I
needed to trust had shared information that shouldn’t have been shared and now was gaining
access to an office on a three-day weekend when they really had no expectations of being there.”
(Peterson Dep. at 65-66.) According to Peterson, Kouba was not scheduled to return to the office
until the following Tuesday after Labor Day. (Id. at 66.)
In reaching her decision to terminate Kouba, Peterson did not confer with DiFulgo,
Kouba’s immediate supervisor. (Peterson Dep. at 42-44.) Peterson testified that she does not
recall whether or not DiFulgo was in D.C. when these events occurred, but Peterson does
remember that DiFulgo was either dealing with the burning down of her house or the death of her
mother around that time. (Peterson Dep. at 43-44.) Although DiFulgo could have been reached,
Peterson testified that she did not want to contact DiFulgo because of her personal situation and
because Peterson wanted to have as few persons as possible involved in the investigation, so as
not to damage anybody’s reputation if the allegations proved to be false. (Peterson Dep. at 43-
44.)
Peterson did, however, confer with Human Resources Director Combs. (Peterson Dep. at
5
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
42-44; Combs Dep. at 7–8.) It is not clear if Peterson had reached a decision on the matter at the
time of the discussion with Combs. Once she reached a decision, however, Peterson admits she
shared her decision with Vice-President of Finance Rick LaValley, Senior Vice President of
Associate Services Joy Rothschild, as well as Regional Vice President Ed Netzhammer, all of
whom agreed with Peterson’s decision to terminate Kouba. (Peterson Dep. at 51-53, 56.)
According to Human Resources Director Combs, termination of executive committee
members, such as Kouba, require corporate approval. (Combs Dep. at 8.) Although Peterson
admittedly made the termination decision, she testified she was of the opinion she should obtain
corporate “advice or counsel” from the executives prior to implementation of her decision.
(Peterson Dep. at 53, 56.) According to Peterson, she was new to the job and did not yet know
company protocol. (Id. at 53.) Therefore, she wanted to make sure the executives understood
her decision and they had an opportunity to give her “feedback.” (Id. at 53- 55, 56.) Peterson
testified the executives did not “tell her what do,” about the matter and she does not know what
might have happened had the executives disagreed with her decision to terminate. (Id. at 56.)
Although progressive discipline was an option, Peterson made the termination decision
because Kouba had shared confidential information. (Peterson Dep. at 51-52, 54-59; see Pl.’s
Ex. 7.)
“[I]n the course of the investigation I found out that confidential information had
been shared, to include the salaries of . . . an assistant controller and a credit
manager, with someone who was subordinate to the assistant controller, that the
sharing of the information occurred in a bar with alcohol and that it was for a position
that didn’t exist and that my concern is in this position if I can’t trust the controller,
I can’t trust anybody.
6
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
(Peterson Dep. at 73; see id. at 59.) When asked why she elected to forego progressive discipline
in favor of termination, Peterson testified that she did not consider Kouba’s situation a
performance issue. (Peterson Dep. at 58-59.) Rather, according to Peterson, it was a
“confidentiality and trust issue.” (Id. at 59.)
On Friday, September 5, 2008, Peterson sent Kouba a letter terminating her employment
for sharing management team member salaries, in violation of Omni’s Confidentiality
Agreement. (Pl’s Response to Def.’s Undisputed Facts at p. 18.) Peterson replaced Kouba with
a male who found out about the job through one of Peterson’s contacts.
During her employment with Omni, Kouba acknowledged receipt of the Omni Associate
Handbook, which contains the following provisions:
While every situation cannot be anticipated, the following are examples of conduct
that cannot be permitted and which may result in immediate discharge and/or
progressive disciplinary action. . . . [T]he hotel at all times reserves the right to
discipline or to terminate any associates as it sees fit in the exercise of its sole
discretion.
. . . .
[T]he following acts of misconduct are provided as nonexclusive examples of
unacceptable activity:
. . . .
Unauthorized release or use of confidential associate, guest or company information.
. . . .
Any associate who acts in a manner inconsistent with our standards of behavior is
subject to discipline, up to and including termination. Responsibility for imposing
proper discipline rests in the first instance with an associate’s supervisor, but
situations involving serious discipline or termination will ordinarily be reviewed by
senior management as well.
7
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
In a situation where Omni Hotels believes that the problems with an associate’s
performance may be cured in a reasonable time, we may choose to place the associate
on probation, giving him/her notice of deficiencies in performance and an
opportunity to correct them.
Omni Hotels may terminate an associate immediately for serious misconduct,
including but not limited to . . . .any other conduct that significantly interferes with
the efficient operation of Omni Hotels.
(Def.’s Ex. A at DEF000260 - 61; DEF000264) (emphasis added).
In addition to the rules of conduct and disciplinary policies spelled out in the handbook,
Omni maintains certain confidentiality policies. Consistent with those policies, Kouba signed a
Confidentiality Agreement which contained the following provisions:
2. Employee hereby agrees that Confidential Information (a) will be held in
confidence and not disclosed by Employee to any person and (b) will only
by used by Employee in connection with his or her job duties while
employed by Omni.
....
4. Employee understands and acknowledges that any violation of the terms of
this Agreement may lead to the termination of Employee’s employment with
Omni.
5. Nothing in this Agreement is intended to prohibit employees from discussing
with one another, or with third parties who are not competitors of Omni,
wages, hours and other terms and conditions of employment.
6. This Agreement shall constitute the entire agreement between the parties with
regard to the subject matter hereof. No modification, amendment or waiver
shall be binding without the written consent of each of the parties.
(Def.’s Ex. E ) (emphasis added).
8
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
Kouba never agreed to any modifications of this confidentiality agreement and she
testified that she believed the agreement allowed her to discuss salaries with individuals who
were not competitors of Omni. (Kouba Dep. at 197.) Kouba admits, however, that she could
have given Stone a salary range, rather than disclosing employee salaries. (Kouba Dep. at 171.)
Kouba admits she is not aware of any executive committee members who shared salary
information with subordinate employees. (Pl’s Response to Def.’s Undisputed Facts at p. 19.)
Additionally, Kouba has no evidence of anyone at Omni making disparaging comments about
women, gays or lesbians. (Id. at p. 20.)
LEGAL STANDARDS
A. Motions for Summary Judgment
The party seeking summary judgment bears the initial burden of demonstrating no
genuine issues of material fact exist. See Fed. R. Civ. P. 56.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence
as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however,
must establish more than “the mere existence of a scintilla of evidence” in support
of its position. Id. at 252, 106 S.Ct. 2505. . . .
[T]he nonmoving party may not rely solely on allegations or conclusory
statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray,
9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific
facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at
675. If the evidence “is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (internal
citations omitted).
9
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
Felton v. Haris Design & Const. Co., 417 F. Supp. 2d 17, 20- 21 (D.D.C. 2006).
B. Discrimination Claims
Because the District of Columbia Human Rights Act (DCHRA) was “‘modeled on Title
VII,’ courts employ the Title VII prima facie case analysis established in McDonnell Douglas’
when analyzing motions for summary judgment in cases brought under the DCHRA.” Gaujacq
v. Electricite de France Int.’l. North America, Inc., 572 F. Supp. 2d 79, 87 n.5 (D.D.C. 2008)
(quoting Goos v. National Ass'n of Realtors, 715 F. Supp. 2d, 3 (D.D.C. 1989); Howard Univ. v.
Green, 652 A.2d 41, 49 n.3 (D.C. 1994)). Therefore, this Court must apply a Title VII analysis
when reviewing Omni’s summary judgment motion.
In a Title VII disparate-treatment suit where an employee has suffered an
adverse employment action and an employer has asserted a legitimate,
non-discriminatory reason for the decision . . . the district court must resolve one
central 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 and that the employer intentionally discriminated against the employee on the
basis of race, color, religion, sex, or national origin? 5
. . . .
A plaintiff . . . may try in multiple ways to show that the employer’s stated reason
for the employment action was not the actual reason (in other words, was a pretext).
Often, the employee attempts to produce evidence suggesting that the employer
treated other employees of a different race, color, religion, sex, or national origin
more favorably in the same factual circumstances. Alternatively, the employee may
attempt to demonstrate that the employer is making up or lying about the underlying
facts that formed the predicate for the employment decision. . . . .
5
Although Title VII does not protect against discrimination based on sexual orientation,
the Title VII analysis still applies when interpreting the DCHRA’s protections against
discrimination based on sexual orientation. See Howard Univ. v. Green, 652 A. 2d 41, 45 n. 3
(D.C. 1994).
10
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
Employees often try to cast doubt on an employer’s asserted reason in other ways as
well, such as pointing to: changes and inconsistencies in the stated reasons for the
adverse action; the employer’s failure to follow established procedures or criteria; the
employer’s general treatment of minority employees; or discriminatory statements
by the decisionmaker.
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494, 495 n.3 (D.C. Cir. 2008) (citations
omitted).
ANALYSIS
Kouba argues Omni’s stated reason for her termination, disclosure of confidential salary
information, is a pretext for discrimination because this policy specifically allows for disclosure
of such information to non-competitors. (See Def.’s Ex. E #5.) Further, she argues additional
evidence of discriminatory intent can be found in: (1) Peterson’s failure to impose a lesser
penalty; (2) Peterson’s failure to consult Kouba’s immediate supervisor DiFulgo, who was gay;
(3) Peterson’s “inexplicable” “sharp words” directed at Kouba over the email regarding entry to
her office; and (4) Peterson’s “demonstrated” and “irrational dislike” of Kouba.
Kouba’s arguments are not persuasive. Kouba cites the written policy which allows
employees to disclose “wages, hours and other terms and conditions of employment” with “one
another, or with third parties who are not competitors of Omni.” (Def.’s Ex. E.) Although
Kouba may have interpreted the policy as permitting the salary disclosures she made, Peterson
testified that she viewed the disclosures as a violation of the confidentiality policy. (Peterson
Dep. at 51–52, 54-59.) When an employer offers a legitimate non-discriminatory reason for
terminating an employee, it is enough that the employer “honestly and reasonably” believed in
11
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
its justification for terminating the plaintiff. See Brady v. Office of Sergeeant at Arms, 520 F.3d
490, 496 (D.C. Cir. 2008); George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005).
“Of course, the fact that a proffered reason is objectively false may undermine an
employer's professed honest belief in that reason.” George, 407 F.3d at 415. In the instant case,
however, there is no evidence that the proffered reason was objectively false. Indeed, the most
reasonable interpretation of Omni’s confidentiality provision is that it allows an employee to
share only her own salary information with others: “to the extent an employee is privy to
confidential information about another employee . . . [s]he has no right to disclose that
information contrary to the policy of [her] employer.” Community Hospitals of Central
California v. NLRB, 335 F.3d 1079, 1089 (D.C. Cir. 2003) (citing Aroostook County Reg'l
Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 213 (D.C. Cir. 1996)). See also, Labor and
Employment Law, Ch.4, § 4.04[4][b] (Matthew Bender 2011) (while employees generally have a
right under the National Labor Relations Act to discuss their own wages with others and to seek
out information about wages from others in order to use such information for self-organization,
where “disclosure of the information is a breach of the employer’s trust,” the conduct is not
protected); International Business Machines Corp., 265 NLRB 638 (1982) (while employer may
not prohibit employees from discussing their own wages under the NLRA, employer may
lawfully terminate employee who disseminated confidential documents related to wages of other
employees, where employee was aware of company policy against such disclosure).
Kouba’s reliance on Davis v. Ashcroft, 355 F. Supp. 2d 330 (D.D.C. 2005), is therefore
misplaced. In Davis, which involved claims of racial discrimination, the FBI sent plaintiff a letter
12
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
ordering her to submit to a psychological fitness-for-duty (FFD) examination and, in that letter,
cited to the federal regulation supporting its request. Id. at 349-50. The regulation, however,
allowed the FBI to request an FFD only after a general medical examination failed to explain
employee behavior that might affect safety and performance. Id. at 350. Because no medical
examination report had been released to the FBI at the time of the FFD request, the Court denied
summary judgment for the FBI. Id. The Court reasoned that a fact finder could infer
discriminatory intent from the FBI’s failure to adhere to its own regulations. Id. at 350. In the
instant case, however, Omni’s actions were consistent with company policy, thereby
distinguishing the instant case from Davis.
Even if a reasonable person could find that Peterson’s actions were in technical violation
of Omni’s confidentiality policy when she terminated Kouba, no reasonable person could find
evidence of pretext in Peterson’s application of Omni’s policy. Indeed, Kouba’s own testimony
establishes that Omni’s practice was to allow disclosures of manager salaries only as absolutely
necessary. For example, Kouba admitted that she kept salary information in locked files and, at
the direction of her superiors, she redacted certain salary information when sharing budgets
among middle managers. (Kouba Dep. at 65-66, 76.) Thus, any allegation that Peterson acted in
conflict with the written policy is insufficient to provide evidence of discriminatory motive,
because Peterson’s actions were consistent with Omni’s past practice. When “departure from the
prescribed procedure . . . become(s) the norm,” such a departure alone does not provide evidence
of pretext. See Fischbach v. District of Columbia Dept. of Corrections, 86 F.3d 1180, 1183
(D.C. Cir. 1996).
13
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
Accordingly, Kouba’s challenge to Peterson’s decision is without merit, unless she has
evidence of discriminatory motive. The “evidence” upon which Kouba relies, however, fails to
even faintly suggest discriminatory motive. First, Peterson’s decision to forego progressive
discipline was consistent with the company guidelines. Although progressive discipline is an
option for some infractions, the company policies provide that Omni in its “sole discretion” may
“immediately” terminate employees for “serious misconduct.” (Def.’s Ex. A at pp. DEF000260 -
61; DEF000264.) Peterson exercised that discretion and Kouba points to no similarly situated
heterosexuals or males who were treated more favorably. See Morris v. City of Chillicothe, 512
F.3d 1013, 1020 (8th Cir. 2008) (finding no evidence of pretext in employer’s failure to use
progressive discipline where the policy also allowed termination of employees without warning).
Second, no improper motive can be gleaned from Peterson’s failure to consult Kouba’s
immediate supervisor where, as here, there is evidence the supervisor was dealing with family
emergencies. DiFulgo’s status as a lesbian does not change this analysis. Moreover, Peterson
testified she wanted as few persons involved in the matter as possible given the nature of the
allegations. There is nothing untoward about Peterson’s testimony.
Next, Peterson’s “inexplicably” “harsh words” admonishing Kouba to “check the tone of
her email,” regarding Kouba’s locked office, do not establish evidence of discriminatory intent.
Peterson explained that she was initially offended by Kouba’s email because Peterson believed
she could no longer trust Kouba, who was seeking entry to her office, over a holiday weekend,
when she was not expected to be in the office. (Peterson Dep. at 65-66.) Additionally, Peterson
testified she interpreted Kouba’s email as challenging Peterson. (Id. at 66.)
14
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
Finally, Kouba attempts to create pretext by asserting Peterson was biased against gays.
According to Kouba, Peterson “demonstrated an irrational dislike of Plaintiff that is difficult to
explain and that a reasonable jury could attribute to [sic] except in the context of Plaintiff’s status
as a lesbian.” (Pl.’s Brief at 5.) Kouba supports her argument by citing to the “harsh” email and
Peterson’s failure to consult Kouba’s gay supervisor, DiFulgo, about the termination. As
discussed above, there is nothing about these matters that might suggest Peterson was biased
against gays.
Kouba also points to certain comments made by Peterson about Kouba’s lesbianism, as
evidence of bias. Kouba fails to point out, however, that Peterson made the comments in
response to direct inquires from Kouba’s attorney. Moreover, Kouba’s creatively edited
recitations of Peterson’s comments do not give full context to her testimony.
The Court finds no reasonable jury could find bias in the comments when quoted in
context. Specifically, when Peterson was asked when she became aware that Kouba was a
lesbian, Peterson testified “[p]robably within the first three days of meeting her.” (Peterson Dep.
at 91.) When asked how she knew of Kouba’s sexual orientation, Peterson responded, “Kim
makes it very apparent, discussions socially, in morning meetings. . . . I believe that in the
context of morning meetings and overhearing social conversations, that’s how I came to gain that
understanding.” (Id. at 91, 94.) When asked if Kouba had the “appearance of a lesbian,”
Peterson responded “Kim always dressed very professionally when ever I saw her.” (Id. at 91-
92.)
Whether Kouba is of the opinion that Peterson’s decision was the most prudent decision,
15
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
is not the focus of this Court’s inquiry. As the D.C. Circuit has explained, “the issue is not the
correctness or desirability of the reasons offered, but whether the employer honestly believes in
the reasons it offers.” Fischbach v. District of Columbia Dept. of Corrections, 86 F.3d 1180,
1183, 1182 (D.C. Cir. 1996) (citation and internal quotes omitted). Of course, a plaintiff can
provide evidence of discriminatory motive in an effort to establish that the proffered reasons are
not the real reasons for the challenged employment action. In doing so, however, a plaintiff must
come forward with more than speculation and conjecture in order to survive a motion for
summary judgment. In the instant case, Kouba has failed to meet this burden and, therefore, her
claims cannot survive. See Carter v. Pena, 14 F. Supp. 2d 1, 7 (D.D.C. 1997) (“neither the
nonmovant’s conjecture and surmise nor mere conclusory allegations of discrimination, without
more are sufficient to defeat a motion for summary judgment.”) (citation and internal quotes
omitted).
CONCLUSION
For the reasons set forth above, the Court finds that no genuine issues of material fact
exist with respect to the pertinent circumstances surrounding Kouba’s termination and that the
evidence, even considered in the light most favorable to Kouba, does not support the allegation
16
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.
of discrimination. Accordingly, Omni’s motion shall be granted and Kouba’s claims shall be
dismissed.
SO ORDERED.
July 12, 2011
/s/
___________________________
Robert L. Wilkins
United States District Judge
17