Duncan v. Carson ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXIS DUNCAN,
Plaintiff,
v. Case No. 1:19-cv-2113 (TNM)
MARCIA FUDGE, Secretary, U.S.
Department of Housing and Urban
Development,
Defendant.
MEMORANDUM ORDER
Alexis Duncan brings this employment discrimination suit against the Secretary of
Housing and Urban Development (HUD) alleging race and sex discrimination in violation of
Title VII. See 42 U.S.C. § 2000e et seq. Duncan also claims HUD employees unlawfully
retaliated against her for reporting that discrimination. The Secretary now moves for summary
judgment. See Mot. for Summ. J., ECF No. 20. Reviewing the evidence, the Court finds a
genuine dispute of material fact as to Duncan’s race-discrimination claim. Summary judgment is
therefore denied for that cause of action. Duncan forfeited the remaining claims by failing to
brief them.
I.
In 2015, HUD posted a hiring notice for an “Assessment Manager.” See Opp’n to MSJ,
ECF No. 21, Ex. 12 (Position Notice). The notice explained the Assessment Manager would
work as a “supervisor located in the Real Estate Assessment Center (REAC).” Id. Duncan, a
certified public accountant, was hired into that position and assigned to assist in a large financial-
reconciliation project within REAC. See Opp’n to MSJ, Ex. 13 (Hiring Notice); MSJ, Ex. B
(Duncan Depo.) at 32:13–15. She started in December 2015. See Opp’n to MSJ, Ex. 13.
At least five other HUD employees worked on the reconciliation project, too—Sharath
Jangapalli, Adam Hauptman, Jill Rudy, Sam Tuffour, and Shalene Domingo. MSJ, Ex. B
(Duncan Depo.) at 34:18–35:5. Based on the Assessment Manager’s position-description,
Duncan thought she would supervise at least some of those employees. See id. at 20:14–24. But
Duncan never received supervisory responsibilities nor was she introduced as a supervisor. See
Opp’n to MSJ, Ex. 1 at 25–26. The Secretary explains that discrepancy in two ways. First, she
says Duncan’s first- and second-line supervisors were not told she was hired as a supervisor. See
Def.’s Memo in Supp. 3, ECF No. 20-1 (citing MSJ, Ex. 3 (Rudy Aff.) at 2; Ex. 4 (Tuffour Aff.)
at 2; Ex. 2 (Duncan Depo.) at 43:3-7). 1 Second, the Secretary says an error in HUD’s computer
system made it appear as if Duncan was supervising employees, when in reality those employees
reported to another supervisor. See id. (citing MSJ, Ex. B (Duncan Depo.) at 28:14–29:6; Ex. A
(Duncan Aff.) at 12; Ex. E (Nichols Depo.) at 50:15-51:8, 51:13-16). Dissatisfied with the
situation, Duncan left HUD just six months after beginning work there. See MSJ, Ex. 2 at 7:13–
15.
Duncan eventually filed this federal employment discrimination lawsuit. In her
complaint, Duncan alleged employees of HUD discriminated against her because of her race and
sex by failing to assign her supervisory responsibilities and retaliated against her for reporting
that discrimination. See Compl. 6. She sought damages in excess of $300,000, reinstatement to
1
The Secretary provides a helpful breakdown of Duncan’s chain of command: “At the time she was hired, Ms.
Duncan’s first-line supervisor was Jill Rudy (a white female), her second-line supervisor was Sam Tuffour (an
African American male), her third-line supervisor was James Cruiskshank, her fourth-line supervisor was Delton
Nichols (an African American male), and her fifth-line supervisor was D.J. Lavoy (a white male).” Def.’s Memo in
Supp. 2 (cleaned up).
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her position at HUD with supervisory duties, a correction of the employee-designation in her
personnel file, back pay, an injunction preventing further discrimination, as well as costs and
fees. Id. at 7. The Secretary moved for summary judgment. The parties have submitted
responsive briefing and the motion is now ripe for resolution. 2
II.
“A party may move for summary judgment” on grounds “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A material fact is one that “might affect the outcome of the suit under the governing law,”
and a dispute about a material fact is only genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir.
2008). As the movant here, the Secretary bears the burden of proving the absence of a genuine
dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining
whether she has carried that burden, the Court will “review all evidence in the light most
favorable to the nonmoving party and draw all inferences in [her] favor.” Keister v. AARP
Benefits Comm., 410 F. Supp. 3d 244, 250 (D.D.C. 2019) (citing Tolan v. Cotton, 572 U.S. 650,
655–56 (2014) (per curiam)).
The “governing law” of this suit is Title VII, which makes it unlawful for an employer to
“discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). To determine whether the Secretary is entitled to summary
judgment under Title VII, the Court applies the familiar McDonnell Douglas framework. See
2
The Court has subject matter jurisdiction over this dispute. See 28 U.S.C. § 1331; 42 U.S.C. § 2000e–5(f)(3);
Arbaugh v. Y&H Corp., 546 U.S. 500, 505 (2006).
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Tex. Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981); McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). “Under McDonnell Douglas, it is the plaintiff’s burden to
establish a prima facie case of discrimination by a preponderance of the evidence.” Stella v.
Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). Once the plaintiff satisfies that initial burden, the
employer “must then articulate a legitimate nondiscriminatory reason for its actions.” Id. Then
it falls to the plaintiff to show “the employer’s stated reason was pretextual and that the true
reason was discriminatory.” Id.At summary judgment, if “an employer has asserted a legitimate non-discriminatory
reason for the [challenged action], [a] district court need not—and should not—decide whether
the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Off. of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “Rather, . . . 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.”
Id. Such evidence may include “the employer’s better treatment of similarly situated employees
outside the plaintiff’s protected group, [the employer’s] inconsistent or dishonest explanations,
its deviation from established procedures or criteria, or the employer’s pattern of poor treatment
of other employees in the same protected group . . . , or other relevant evidence that a jury could
reasonably conclude evinces an illicit motive.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C.
Cir. 2015).
III.
Now to apply those standards here. The Secretary offered a two-part explanation for why
Duncan received no supervisory responsibilities—she says (1) Duncan’s first- and second-line
supervisors were unaware that she was hired as a supervisor, and (2) a software error made it
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appear as if Duncan was assigned subordinates upon arrival at HUD, when in reality she was not.
Def’s Memo. in Supp. 3. Following Brady, the only question is whether Duncan has proffered
evidence from which a jury could find those explanations are a pretext for discrimination. The
Court finds Duncan has carried her burden as to the race-discrimination claim for two reasons.
First, although software issues and a chain-of-command miscommunication explain why
Duncan was not initially assigned supervisory responsibility, they may not explain why Duncan
was never assigned such responsibilities in her six-month tenure at HUD. The summary
judgment evidence shows Duncan’s first-line supervisor Jill Rudy was told as early as March,
2015, that Duncan was hired as a supervisor and should have supervisory duties. See Opp’n to
MSJ, Ex. 9 (Deposition of Jill Rudy) at 24:22–25:3 (“Q: [A]fter a few months of Ms. Duncan
working for you, Jeff Nichols told you that she was hired as a supervisor, is that right? A:
Correct.”). It is no response to say Rudy was “leaving it up to the front office” because “there
wasn’t anybody [] to supervise.” See Reply at 8. As the Secretary’s own evidence shows,
Nichols (a “front office” supervisor) directed Rudy to ensure Duncan had subordinates. See
Reply, Ex. A 53:9–11 (“I indicated to . . . either to Mr. Tuffour or Ms. Rudy to make sure [] there
were employees assigned to Ms. Duncan.”). And there were at least three other non-supervisory
employees assigned to the reconciliation project Duncan was hired to lead: Sharath Jangapalli,
Adam Hauptman, and Shalene Domingo. MSJ, Ex. B (Duncan Depo.) at 34:18–35:5. Taken
together, this evidence casts doubt on the Secretary’s explanation.
Second, Rudy made a remark suggesting the continued failure to assign Duncan
supervisory responsibilities was “at least in part[] for a prohibited reason.” Pauling v. District of
Columbia, 286 F. Supp. 3d 179, 205 (D.D.C. 2017). When Domingo and Duncan got into an
argument, Rudy allegedly characterized them as “just two black women who could not get
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along.” MSJ, Ex. 5 (Duncan Depo.) at 52:21. Circuit precedent suggests such a remark supports
an inference of racial animus. Cf. Evans v. Sebelius, 716 F.3d 617, 622 (D.C. Cir. 2013) (“[A]
reasonable jury could interpret as racially insensitive” a supervisor’s reference to African
American staff as “those sisters.”); Walker, 798 F.3d at 1092 (noting that a plaintiff may rely on
any “relevant evidence that a jury could reasonably conclude evinces an illicit motive”). And
recall that the Court must draw such an inference in Duncan’s favor. Tolan, 572 U.S. at 655–56.
The Secretary would disregard Rudy’s comment because Duncan “fails to identify ‘any
relation’ between the ‘proffered statement’ and the ‘adverse employment action at issue.” Reply
12. The Court disagrees. Rudy was Duncan’s first-line supervisor and the person who allegedly
failed to assign Duncan supervisory responsibility, even after being told to do so by Nichols.
Rudy’s remark thus directly connects the complained-of adverse action to evidence supporting
an inference of racial animus. Cf. Evans, 716 F.3d at 621–622. 3
Lastly, the sex-discrimination and retaliation claims. In her Opposition, Duncan
exclusively argued the Secretary is not entitled to summary judgment on the race-discrimination
claim. See Opp’n to MSJ 6–15. “As a plaintiff opposing summary judgment, it was [Duncan’s]
burden to identify evidence that a reasonable jury could credit in support of each essential
element of her claims.” Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015). By
failing to do so, Duncan forfeited opposition to summary judgment on the remaining sex-
discrimination and retaliation claims. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C.
3
To advance this point the Secretary relies on the D.C. Circuit’s opinion in Pauling v. District of Columbia. See
MSJ 18 (citing 823 F.3d 701, 710 (D.C. Cir. 2016)); Reply 12 (same). The problem is, there’s no such case. The
“any relation” language comes from a district court’s opinion, see 286 F. Supp. 3d at 206, which does not bind this
Court.
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Cir. 2014) (“[I]f a party files an opposition to a motion and therein addresses only some of the
movant’s arguments, the court may treat the unaddressed arguments as conceded.”).
IV.
In sum, Duncan has offered enough evidence that a “reasonable jury” could find the
Secretary’s proffered nondiscriminatory reason is a pretext for race discrimination. Brady, 520
F.3d at 494. Summary judgment must be denied as to that claim. The remaining sex-
discrimination and retaliation claims are forfeited. The Court notes, however, that Duncan’s
limited success at summary judgment does not necessarily portend success at trial. Summary
judgment standards heavily favor nonmovants. At trial, by contrast, Duncan’s evidence will
have to win the day, showing the Secretary’s nondiscriminatory reasons for the alleged adverse
employment action are more likely than not a pretext for racial discrimination. It remains to be
seen whether Duncan can shoulder that more substantial burden.
For all these reasons, it is hereby
ORDERED that the Secretary’s [20] Motion for Summary Judgment is DENIED as to
Duncan’s race-discrimination claim; and it is also
ORDERED that the Secretary’s [20] Motion for Summary Judgment is GRANTED as to
Duncan’s sex-discrimination and retaliation claims.
SO ORDERED.
2021.11.27
13:08:58 -05'00'
Dated: November 27, 2021 TREVOR N. McFADDEN, U.S.D.J.
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