American Federation of State , County and Municipal Employees Local 2401 v. District of Columbia , 31 F. Supp. 3d 149 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL
EMPLOYEES LOCAL 2401, et al.,
Plaintiffs,
Civil Action No. 09-CV-1804 (BJR)
v.
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
DISTRICT OF COLUMBIA,
Defendant.
I. INTRODUCTION
This case concerns allegations of age and race discrimination against the District of
Columbia (hereinafter “Defendant” or “the District”) in connection with a reduction-in-force
(“RIF”) at the District of Columbia Department of Health Care Finance (hereinafter “DHCF”), as
well as the hiring of personnel into newly created positions at DHCF after the RIF. Plaintiffs—
African-American DHCF employees whose positions were eliminated in the RIF and who were
not rehired into newly created positions—allege that there was intentional age-and race-based
discrimination in both the RIF and the rehiring process, in violation of 42 U.S.C. § 1983, 42
U.S.C. § 1981, and the District of Columbia Human Rights Act (“DCHRA”). 1 See generally
Third Amended Complaint (Dkt. No. 34) (“Comp.”). Before the Court is Defendant’s motion for
summary judgment filed pursuant to Federal Rule of Civil Procedure 56. Having reviewed the
motion, opposition, and reply thereto, the entire record in the case, and the applicable law, the
Court GRANTS Defendant’s motion for summary judgment.
1
Local 2401 of the American Federation of State County and Municipal Employees, the union that
represents the individual Plaintiffs, is also a Plaintiff in this action.
1
II. FACTUAL BACKGROUND 2
Prior to the creation of DHCF, Medicaid and the D.C. Healthcare Alliance—which
together provide health care services for one in three District citizens—were primarily
administered by the Medical Assistance Administration (“MAA”) within the D.C. Department of
Health. See Defendant’s Statement of Material Facts Not in Dispute (Dkt. No. 98) (hereinafter
“Def.’s St. Facts”) at ¶ 1. It is undisputed that under MAA, the administration of health care
services was frequently mishandled, resulting in significant over and under payments on service
claims, as well as under-reimbursement from federal programs. Id. at ¶ 2. Accordingly, in 2007,
the Mayor of the District of Columbia signed into law the Department of Health Care Finance
Establishment Act of 2007 to create a new agency—DHCF—to centralize and improve the
administration of health care services in the District. Id. at ¶ 3.
Thereafter, the District retained a team of consultants from the George Washington
University (“GW”) School of Public Health and Health Services to assist the District in
establishing DHCF and transitioning the services from MAA to DHCF. Id. at ¶¶ 6-7. Ultimately,
a Transition Plan was developed that structured DHCF along “functional lines” meant to
2
Unless otherwise noted, the factual allegations set forth herein are drawn from Defendant’s Statement of
Material Facts Not in Dispute (Dkt. No. 98-2) (hereinafter “Def.’s St. Facts”). In this Statement, Defendant sets forth
in 63 paragraphs what it alleges to be the material undisputed facts in this case. Id. Plaintiffs do not challenge the
factual allegations raised in 38 of the 63 paragraphs. See Plaintiff’s [sic] Statement of Material Facts in Dispute
(Dkt. No. 100-1) (hereinafter “Pls.’ St. Facts”). Accordingly, the factual allegations contained in those 38 paragraphs
are deemed admitted. See, e.g., Sloan v. Urban Title Services, Inc., 689 F. Supp. 2d 123, 127 (D.D.C. 2012)
(deeming admitted any facts identified by defendant that were not disputed by plaintiff). Plaintiffs did challenge the
factual allegations in 25 of the 63 paragraphs. However, significant issues exist with respect to the challenges raised
by Plaintiffs. Initially, while Plaintiffs contend that the factual allegations in paragraphs 42-43, 45, and 51 are in
dispute, Plaintiffs fail to support their challenge to these allegations with any citation to the record. Accordingly, the
factual allegations in paragraphs 42-43, 45, and 51 are deemed admitted. Id. at 127. As to Plaintiffs’ remaining
challenges, the Court notes that a significant number of the countervailing “facts” to which Plaintiffs direct this
Court’s attention: (1) are not supported by the evidence to which Plaintiffs cite, (2) do not address the factual
allegation raised by Defendant, and/or (3) do not create a dispute of fact. Compare, .e.g., Def.’s St. Facts ¶ 19
(“Managers and human resources personnel at DHCF as well as at the Department of Health were given input into
position descriptions for new positions at the agency.”) with Pls.’ St. Facts ¶ 19 (“Despite management and human
resources personnel input, the District failed to comply [sic] its personnel rules, including recertification,
reclassification and the District’s anti-discrimination laws.”). In such instances, the Court deems Defendant’s
proffered facts admitted. Sloan, 689 F. Supp. 2d at 127.
2
improve the quality and availability of health care to District citizens, as well as “correct the
financial and audit challenges” facing the District. Id. at ¶¶ 11, 13. After DHCF’s organizational
structure was established, the GW consultants developed an organizational chart to implement
the changes envisioned by the Transition Plan. Id. at ¶ 14.
DHCF’s organizational structure included new positions that had not previously existed
at MAA and eliminated some positions that had existed within MAA. Id. at ¶¶ 15-17, 31-32.
Plaintiffs do not dispute that the GW consultants were primary responsible for drafting the job
descriptions for the newly created positions in DHCF. Id. Nor do Plaintiffs dispute that, at the
time that the determination was made as to which positions would be eliminated in the RIF, the
GW consulting team members did not know the identities of the employees who held those
positions. Id. at ¶ 32.
DHCF assumed MAA’s responsibilities on October 1, 2008 and thereafter the RIF was
implemented. Id. at ¶¶ 22, 29-30. Seventy-nine positions were eliminated in conjunction with
the RIF and sixty-two positions were created. Id. at ¶¶ 29-30. It is undisputed that agency
employment records demonstrate that the race and age of DHCF’s workforce before and after the
RIF remained the same. Id. at ¶ 37. More particularly, before the RIF, 47.58% of DHCF’s
employees self-identified as African-American; after the RIF, 47.58% of DHCF’s employees
self-identified as African-American. Id. Likewise, before the RIF, 46 was the median age of
DHCF’s employees; after the RIF, 46 was the median age of DHCF’s employees. Id.
In addition, DHCF notified its employees of the impending RIF one month before it
implemented the RIF. Id. at ¶ 33. The employees whose positions were slated for elimination
were encouraged to apply for one of the newly created positions and were given priority in hiring
for those positions. Id. at ¶ 38-39. Forty-seven of the seventy-nine employees whose positions
3
were eliminated by the RIF were rehired into new positions at DHCF. Id. at ¶ 41. Plaintiffs are
seventeen of the thirty-two former DHCF employees whose positions were terminated, but who
were not rehired into any of the newly created positions. 3 It is undisputed that five of the
seventeen Plaintiffs did not apply for a new position within DHCF or, in the case of one Plaintiff,
applied but then withdrew from consideration for the position. Id. at ¶ 47. This lawsuit followed
on September 21, 2009. Dkt. No. 1.
III. DISCUSSION
A. Summary Judgment Legal Standard
“The 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.” FED.
R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The mere
existence of any factual dispute will not defeat summary judgment; “the requirement is that there
be no genuine issue of material fact.” Olatunji v. District of Columbia, 958 F. Supp. 2d 27, 29
(D.D.C. 2013) (quoting Anderson, 477 U.S. at 247–48) (emphasis in original). A fact is material
if, under the applicable law, it could affect the outcome of the case. Olatunji, 958 F. Supp. 2d at
29. A dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. (quoting Anderson, 477 U.S. at 247-48). Because “[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,” the “evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Id. at 29-30 (quoting Anderson, 477
U.S. at 255). However, the nonmoving party must establish more than “the existence of a
scintilla of evidence” in support of its position, Id. at 30, and the inferences drawn from the
3
Originally there were thirty individual Plaintiffs in this lawsuit. However, thirteen of the original Plaintiffs
were dismissed from the case for failure to respond to discovery requests. See Dkt. No. 75.
4
evidence “must be reasonably probable and based on more than mere speculation.” Rogers Corp.
v. E.P.A., 275 F.3d 1096, 1103 (D.C. Cir.2002) (citations omitted). In addition, the nonmoving
party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999). He must present specific facts that would enable a reasonable
jury to find in his favor. Id. If the evidence presented is “merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations
omitted).
B. Plaintiffs’ Claims
As a preliminary matter, this Court notes that Plaintiffs’ opposition to Defendant’s
summary judgment motion largely consists of conclusory statements, with little citation to
evidence in the record. Indeed, rather than refer this Court to evidence in the record, Plaintiffs
cite to their own pleadings. It is black letter law that Plaintiffs may not rest upon the allegations
asserted in their pleadings, but must instead “present affirmative evidence in order to defeat a
properly supported motion for summary judgment.” Anderson, 477 U.S. at 257; District Intown
Props., Ltd. P’ship v. District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court
must assume the truth of all statements proffered by the non-movant except for conclusionary
statements lacking any factual basis in the record.”).
With this in mind, the Court now turns to the merits of Plaintiffs’ arguments. As
discussed above, Plaintiffs bring three claims for relief. First, Plaintiffs filed an equal protection
claim under 42 U.S.C. § 1983 based on the District’s alleged age-and-race-based discrimination.
Specifically, Plaintiffs allege that the District violated their right to the equal protection of the
laws as enshrined in the Fourteenth Amendment by “illegally reorganize[ing] DHCF in such a
way as to selectively terminate more senior African-American employees while simultaneously
5
protecting and excluding less senior, inexperienced, predominately Caucasian employees” from
the RIF. Third Am. Comp. at ¶ 29. Plaintiffs further charge that the District “reclassifi[ed] [] jobs
and grade levels” to effectively disqualify “incumbent African-American employee Plaintiffs
from consideration for so called new (redefined) positions, resulting in their constructive
discharge and exclusion from ‘newly created’ positions.” Id. at ¶ 30.
Second, Plaintiff filed a race-based discrimination claim under 42 U.S.C. § 1981 based
on the District’s alleged interference with the collective bargaining agreement between the
District and Plaintiffs’ union, AFSCME. With respect to this claim, Plaintiffs allege that the
District “acted pursuant to a formally adopted policy” to implement “a racially and age biased
‘realignment’ plan” that “reclassifi[ed] jobs, diminish[ed]/lower[ed] Plaintiffs’ ratings and
qualifications or skills, in order to effectively eliminate their positions and/or preclude their
rehiring.” Id. at ¶ 36. Plaintiffs charge that the District’s actions “impeded Plaintiffs’ enjoyment
and protections articulated in the terms and conditions of the [collective bargaining agreement].”
Id. at ¶ 37. Lastly, Plaintiff charge that the District violated the D.C. Human Rights Act, D.C.
Code § 2-1401 et seq. (hereinafter “DCHRA”) because it “acted in violation of D.C. laws of [sic]
governing Reductions-in-Force.” Id. at ¶ 41.
The familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), applies to § 1981, § 1983, and DCHRA cases where, as here, a plaintiff
presents only circumstantial evidence that discrimination caused an adverse employment action. 4
Royall v. Nat’l Ass’n of Letter Carriers, AFL–CIO, 548 F.3d 137, 144 (D.C. Cir. 2008) (applying
the McDonnell Douglas framework to § 1981 claims); Jo v. Dist. of Columbia, 582 F. Supp. 2d
51, 60 (D.D.C. 2008) (§ 1983 case applying McDonnell Douglas); Paquin v. Federal Nat.
4
Plaintiffs acknowledge that “there is no direct evidence per se of discrimination.” Pls.’ St. Facts at ¶¶ 56-
59.
6
Mortg. Ass’n, 119 F.3d 23, 27 (D.C. Cir. 1997) (applying McDonnell Douglas to a DCHRA
case). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of
discrimination by showing that “(1) [he] is a member of a protected class; (2) [he] suffered an
adverse employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.” Chappell–Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006). The burden
then shifts to the employer to articulate a “legitimate, nondiscriminatory” justification for the
adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Where an employer offers “clear and reasonably specific” nondiscriminatory reasons for the
adverse employment action, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258
(1981), the court “should not decide whether the plaintiff has made out a prima facie case,” and
should instead “proceed[ ] to the ultimate issue of [discrimination] vel non.” Jones v. Bernanke,
557 F.3d 670, 678 (D.C. Cir. 2009). Finally, where a plaintiff can establish a predicate
constitutional violation under § 1983, a municipality such as the Defendant in this case is liable
only for “action pursuant to official municipal policy.” Triplett v. Dist. of Columbia, 108 F.3d
1450, 1453 (D.C. Cir.1997) (citing Monell v. New York City Dept. of Social Services, 436 U.S.
658, 691 (1978)).
Here, Defendant does not challenge whether Plaintiffs have established a prima facie case
for discrimination; rather, it offers a legitimate, non-discriminatory reason for the adverse
employment actions: as Defendant explains, MAA’s mismanagement of the District’s local and
federal public health service programs cost the District “millions of dollars” and resulted in
negative audit findings that “jeopardized the city’s bond rating.” Def.’s Mot. at 3. DHCF was
created to “fix the problems and shortcomings of the existent system,” which included
terminating seventy-nine positions and creating sixty-two new positions. Id. at 4-5. Defendant
7
points out that the reason for the realignment is laid out in “exhaustive detail in the Mayor’s
Transition Plan,” which was submitted to the Council for the District of Columbia for approval
more than a year before the RIF took place. Id. at 13. What is more, the Defendant argues, the
decision as to which positions were eliminated in the RIF was made by many individuals from
multiple District agencies, as well as the GW consulting team. These decision-makers,
Defendant contends, did not know which employees were in the positions slated for elimination.
In other words, according to Defendant, the determination was made without consideration of
race or age.
Defendant further argues that its lack of discriminatory intent in conducting the RIF is
underscored by its emphasis on rehiring the individuals who were displaced as part of the RIF.
“Employees subject to the RIF were given a list of vacancies, information on applying, a training
session, and ‘at least 8 hours of administrative leave to work on resumes and applications.’” Id.
at 15. In addition, the displaced employees were given priority consideration for reemployment
at DHCF. Id. What is more, Defendant claims, DHCF chose to post internally (exclusively)
forty-four of the sixty-two new positions created, thereby increasing the likelihood that the
displaced employees would be rehired. Id. This led to almost 60% of the displaced employees
being rehired within DHCF with little or no break in employment. Id. Defendant alleges that it
would likely have been a greater percentage, but 20% of the displaced employees (including five
of the 17 Plaintiffs in this case) chose not to apply for a new position. Id. at 15, 16 n. 6. Finally,
the District points out that it is undisputed there was no appreciable change in the demographics
of DHCF’s workforce after the RIF and rehiring occurred (noting that the median age of DHCF
employees was 46 before and after the RIF, and the number of DHCF employees self-identifying
as “Black, not of Hispanic origin” was 47.58% before and after the RIF). Id. at 15-16.
8
Plaintiffs concede that the District’s healthcare system was poorly administered under
MAA. Nevertheless, they charge that the District’s asserted nondiscriminatory reason for
creating DHCF is pretextual, and that the true reason that the District implemented the RIF and
created new positions was so that it could get rid of “incumbent and older African American
employees” and replace them with “younger, inexperienced Caucasian” employees. Pls’ Opp. at
1-2. Plaintiffs direct this Court’s attention to the following “facts” that they allege are both
material and in dispute, in support of their claim that the District’s proffered reason is pretext for
discrimination:
1. The District only superficially changed job descriptions so that it could list them as
“new positions”;
2. The District failed to provide “incumbent employees” with an opportunity to review
and appeal the job description and classification of the new positions;
3. “[P]reserve[ing] the employment of [DHCF’s] existing employees” was not a priority
for DHCF;
4. Human Resources at DHCF, not the GW consultants, had the primarily responsibility
for drafting the job descriptions for the new positions;
5. The GW consultants did not determine which positions would be eliminated in the
RIF;
6. GW consultant team members were hired into the newly created DHCF positions;
7. DHCF intentionally omitted approximately 17 employees from its “retention
register”;
8. Plaintiff Eric Walcott was told at one of DHCF’s job fairs that some of the new
positions, including the one to which Mr. Walcott was applying, had already been
filled prior to the job fair;
9. Mr. Walcott was not included on DHCF’s “Displaced Employee and Preferred List,”
meaning he was not given priority treatment for hiring into the new positions;
10. Another Plaintiff, Clement Eyo, applied but was not selected for one of the new
positions; instead, the position went to a lesser qualified candidate; and
9
11. The individuals who were hired into the new positions were hired because they are
Caucasian and friends of the DHCF Director.
A number of these alleged factual disputes can be dispensed with quickly. For instance, in
number 4 above, Plaintiffs dispute that the GW consultants had primary responsibility for
drafting the job descriptions for the newly created positions; yet, later in their opposition,
Plaintiffs concede that the “GW Consultants were primarily responsible for creating the new
positions for DHCF.” Pls.’ Opp. at 12. Accordingly, this is not a disputed fact. 5
In addition, several of the above alleged disputes of fact are not supported by citations to
the record. For instance, in number 6, Plaintiffs allege that GW consultant team members were
hired into the newly created DHCF positions. As evidence of this, Plaintiffs allege that Jessica
Schubel, one of the GW consultants, “began working at DHCF in 2009.” Pls.’ Opp. at 12 (citing
Schubel deposition transcript (“Schubel Tr.” at 13). However, Plaintiffs’ citation to the record in
support of this allegation does not support Plaintiffs’ claim that Ms. Schubel worked at DHCF,
let alone that she was hired into one of the newly created positions. Instead, the record simply
states that Ms. Schubel was hired by “the District of Columbia.” Schubel Tr. at 13. Moreover,
Plaintiffs cite to no evidence in the record demonstrating that other GW consultants were hired
by DHCF into the newly created positions.
5
Defendant also alleges that the GW consultants had the “primary responsibility for … determining what positions
within DHCF were unnecessary.” Def.’s Mot. at 4. Plaintiffs dispute this, arguing that it was DHCF, not the GW
consultants who determined which positions would be eliminated in the RIF. In support of their claim that DHCF
determined which positions would be eliminated, Plaintiffs point out that the head of the GW consulting team,
Patricia MacTaggert, testified that “she did not consider existing jobs” within DHCF as part of the GW team’s
review of the agency’s organization. In Plaintiffs’ view, this means that the GW consultants could not have had
primary responsibility for determining which positions would be eliminated. Plaintiffs mischaracterize Ms.
MacTaggert’s testimony. She did not testify that she did not consider “existing jobs” within DHCF, she testified that
she did not “look at [current] job descriptions,” a different statement entirely. See Patricia MacTaggert deposition
(“MacTaggert Tr.”) at 22. However, the Court also notes that Defendant did not provide evidentiary support for its
contention that the GW consultants had primary responsibility for determining which positions would be eliminated.
Defendant cites Ms. MacTaggert’s affidavit in support of its contention; Ms. MacTaggert’s affidavit is silent on this
issue. As such, the Court will disregard Defendant’s claim that the GW consultants had primary responsibility for
deciding which positions would be eliminated in the RIF.
10
Similarly, Plaintiffs allege that DHCF intentionally omitted approximately 17 employees
from its “retention register,” (alleged fact number 7 above), declaring in an incomplete sentence:
“Defendant’s intentional omission of approximately seventeen (17) or more similarly-situated
Caucasian employees hired within the one year immediately preceding the Reduction in Force
(“RIF”).” Pls.’ Opp. at 13. Not only do Plaintiffs fail to explain the significance of this alleged
fact, they fail to cite to any evidence in the record in support of this allegation. 6 As such,
Plaintiffs’ alleged fact numbers 4, 6, and 7 do not constitute a dispute of material fact that
prohibit summary judgment.
The Court will now address the remainder of the “disputed facts” to which Plaintiffs cite
in support of their claim that Defendant’s proffered reason for creating DHCF was merely
pretext for discrimination. First, Plaintiffs claim that the job descriptions for the newly created
positions were only “superficially” revised from the descriptions of the eliminated positions.
Plaintiffs argue that this is evidence that Defendant created DHCF simply so that it could create
the new positions, thereby “circumvent[ing] the inconvenient obstacle of terminating tenured
employees for cause.” Pls.’ Opp. at 9. As evidence of this, Plaintiffs point to the deposition
testimony of Lewis Norman, a Human Resources Specialist with the District and the Defendant’s
designated Rule 30(b)(6) witness. However, this Court has carefully reviewed those portions of
Mr. Norman’s deposition transcript to which Plaintiffs cite, and there is nothing in the cited
evidence that even remotely suggests that the job descriptions were modified in order to further a
discriminatory agenda on Defendant’s part. 7 Next, Plaintiffs argue that DHCF Director, Julie
6
Plaintiffs list the 17 individuals whom they believe were excluded from this “retention register,” and claim
that the names of the 17 individuals was provided in a letter from Plaintiffs’ union. However, the letter is not
included in the record or otherwise provided for this Court’s review. See Pls.’s Opp. at 13, fn. 2.
7
What is more, Plaintiffs failed to attach complete portions of the cited transcript as an exhibit. For instance,
Plaintiffs refer this Court to a response that Mr. Norman gave on page 152 of his deposition transcript, but fail to
attach the complete response. See Lewis Norman Deposition Transcript, Dkt. No. 100 at 9, Ex. 9 at p. 152 (response
cutting off at mid-sentence).
11
Hudman, admitted that she “was not concerned with preserving the employment of current
employees in the reorganization” and this admission, according to Plaintiffs, is evidence that
Defendant’s proffered reason is pretext for discrimination. Pls’ Opp. at 10. However, once again,
this Court’s review of the cited portion of Ms. Hudman’s deposition transcript reveals no facts
upon which a reasonable jury could deduce that the RIF and subsequent rehiring was the result of
discriminatory intent. Id.
Next Plaintiffs cite to the interrogatory responses of one Plaintiff, Mr. Walcott, as further
evidence that Defendant was motivated by discriminatory intent. Dkt. No. 100, Ex. 15. As a
preliminary matter, this Court notes that the interrogatory responses contain multiple unsworn,
out of court statements that were allegedly made by DHCF employees and that are offered for
the truth of the matter asserted. Plaintiffs have not identified any hearsay exception that would
allow the Court to consider these statements, much less carried their burden of showing that such
an exception applies. Nevertheless, even if this Court were to assume the veracity of such
statements, the statements, along with the remaining allegations in Mr. Walcott’s interrogatory
responses, are not sufficient to create a dispute of material fact.
This is because nowhere in the interrogatory responses does Mr. Walcott even allege (let
alone cite to evidence in the record) that he was terminated and later not rehired because of his
race or age. 8 Instead, Mr. Walcott’s own interrogatory responses offer a nondiscriminatory
reason for why he was not rehired. Id. at 15 (noting that the co-worker who interviewed him for
the newly created position did not like him because a project had once been taken from the co-
worker and given to Mr. Walcott).
8
At most, Mr. Walcott alleges that he told a co-worker that the “disproportionate impact of [the RIF] takes
on a racial overtone.” Id. at 13. This statement, without more, is not sufficient to raise a dispute of material fact.
12
Mr. Walcott does allege in his interrogatory responses that he was not included on
DHCF’s Displaced Employee and Preferred List. Id. at 14. But, once again, Mr. Walcott does not
allege that this “oversight” was the result of discriminatory animus. Although failure to follow
procedures, as appears to be the case here, can be circumstantial evidence that an employer’s
stated explanation is pretextual, the employee must also provide sufficient evidence that the
offered explanation is pretext for discrimination. See Evans v. Sebelius, 716 F.3d 617, 623 (D.C.
Cir. 2013) (even when employee demonstrates that a hiring decision “was procedurally flawed,
… she must still provide sufficient evidence that the government’s proffered explanation is
pretext for racial discrimination”) (emphasis in original). Here, Mr. Walcott does not allege
discriminatory intent, and Plaintiffs have failed to cite to any evidence in the record that would
allow a reasonable jury to find that Mr. Walcott’s exclusion from the Displaced Employee and
Preferred List was anything other than a simple mistake.
Lastly, Mr. Walcott alleges in his interrogatory responses that while he was at a DHCF
job fair, he was told by then-Director of the Medicaid Administration, Bob Maruca, that a
number of the newly created positions had already been filled “by a select group of people” who,
Mr. Walcott claims, had two things in common: they were (1) Caucasian, and (2) friends of the
DHCF Director. Dkt. No. 100, Ex. 15 at 12. Once again, this statement, without more, is
insufficient for a reasonable jury to conclude that the RIF and rehiring process was motivated by
race-and age-based discrimination. Plaintiffs have failed to provide any of the evidence
necessary for a jury to reach such a decision, namely: (1) Plaintiffs applied for the positions
offered at the job fair, (2) Plaintiffs were qualified for the positions; (3) who was hired into the
positions; (4) what the age and race is of those individuals; and (5) Plaintiffs were more qualified
for the positions than those individuals. In short, Mr. Walcott’s interrogatory responses contain
13
only his personal conclusions, conclusory allegations, bare assertions, and subjective beliefs.
They do not include any specific facts to support these conclusions, allegations, and beliefs, and
as such, do not create an issue of material fact.
Next, Plaintiffs contend that Plaintiff Clement Eyo’s statements in an email to District
Human Resources Director Brender Gregory are evidence of discrimination. Specifically, in his
email, Mr. Eyo stated that he was denied a new position for which he applied because his name
was removed from the list of individuals being considered for the position and replaced with “the
name of the person [DHCF] intended to give the job to.” Dkt. No. 100, Ex. 16 at 2. However,
review of Mr. Eyo’s email shows that it is completely devoid of any suggestion that the RIF and
rehiring process was tainted by race- or age-based discrimination. Accordingly, Mr. Eyo’s email
is insufficient to raise a dispute of fact.
Lastly, Plaintiffs cite to an email from Candice Young, a former HR Advisor in the
District’s Human Resources Office, dated January 2, 2010. Dkt. No. 100, Ex. 11. In the email,
Ms. Young accuses the Human Resource Office of hiring improprieties. Id. But, once again,
there are no allegations that the improprieties were motivated by race and/or age discrimination.
Id. Instead, Ms. Young specifically states that the improprieties were due to cronyism. Id. (“I
then stated that I would no longer have anything to do with bringing people on board just
because they were friends of the Director.”); (“Our current employees…were losing their jobs
because we wanted to hire friends of the administration.”). Even if the Court were to assume that
Ms. Young’s claims of cronyism are accurate, such statements do not create a dispute of fact as
to whether the RIF was motivated by race-and age-based discrimination. Cronyism, while
disfavored, is not illegal. See Barry v. Moran, 661 F.3d 696, 708 (1st Cir. 2011) (“[A]n
employment decision motivated by cronyism, not discrimination, would be ‘lawful, though
14
perhaps unsavory.’”) (quoting Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 587 (1st
Cir. 1999), abrogated on other grounds by Desert Palace v. Costa, 539 U.S. 90 (2003); Neal v.
Roche, 349 F.3d 1246, 1252 (10th Cir. 2003) (“[E]mployers are free to employ
nondiscriminatory criteria that are ‘unfair’ or even reprehensible, so long as they are not
discriminatory.”).
Finally, the Court notes that Plaintiffs fail to address whatsoever the undisputed fact that
there is no difference—significant or otherwise—between the demographics of DHCF’s
workforce before and after the RIF. Def.’s St. Facts ¶ 37. As previously stated, the median age of
DHCF employees was 46 before the RIF and 46 after the RIF; the number of DHCF employees
self-identifying as “Black not of Hispanic origin” was 47.58% before the RIF and 47.58% after
the RIF. Id. Plaintiffs’ complete failure to address this issue—alone—is sufficient to warrant
summary judgment for Defendant. See Aliotta v. Bair, 614 F.3d 556, 565 (D.C. Cir. 2010)
(upholding an award of summary judgment because employees’ “statistics could not support an
inference of discrimination).
IV. CONCLUSION
For the foregoing reasons, this Court HEREBY GRANTS Defendant’s Motion for
Summary Judgment (Dkt. No. 98). Plaintiffs’ claims are DISMISSED with prejudice.
Dated this 26th day of March 2014.
A
Barbara Jacobs Rothstein
U.S. District Court Judge
15