Hunter v. District of Columbia Government ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ERNEST HUNTER, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1491 (ABJ)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
This case is before the Court on plaintiff Ernest Hunter’s Motion for Summary Judgment
(“Pl.’s Mot.”) [Dkt. # 51], and defendant District of Columbia’s (“District”) Cross-Motion for
Summary Judgment (“Def.’s Cross-Mot.”) [Dkt. # 66]. This case was referred to Magistrate
Judge Alan Kay for full case management, including preparation of a report and recommendation
for any dispositive motions pursuant to Local Rule of Civil Procedure 72.3. On September 13,
2012, Magistrate Judge Kay issued his Report and Recommendation on the two motions,
recommending that the Court deny summary judgment for Hunter and grant summary judgment
for the District. Hunter filed timely objections. Because the Court finds that summary judgment
is appropriate, it will adopt the Magistrate Judge’s recommendation in full. It will also adopt the
Magistrate Judge’s report and incorporate it as part of this opinion.
BACKGROUND
Ernest Hunter was a contracts compliance officer in the Contracts and Procurement
Administration (“CPA”) within the District of Columbia Child and Family Services Agency
(“CFSA”) until he was terminated in May 2010 through what it called a reduction in force
(“RIF”). Third Am. Compl. [Dkt. # 28] ¶¶ 5, 7, 34; Letter from Roque Gerald to Ernest Hunter
(May 6, 2010), Ex. 37 to Pl.’s Mot (“RIF Notice). In this action, he complains about a number
of employment-related events.
First, Hunter sought to enroll in the CFSA Alternative Work Schedule program (“AWS”)
on or about June 13, 2008. OHR Letter of Determination (May 26, 2009), Ex. 10 to Pl.’s Mot.
(“OHR Letter”) at 2. That request was denied on July 8 by email. Email from LaTonya Bryant
to Ernest Hunter (July 8, 2008), Ex. B to Def.’s Cross-Mot. at 1. The reason given for the denial
was that Hunter was ineligible for the schedule he had requested. Id. He reapplied to enroll in
the AWS program in September, and that application was approved. OHR Letter at 4.
On July 1, 2008, while Hunter’s first AWS request was pending, he submitted a letter to
Ronnie Charles, the Senior Deputy Director for Administration of CFSA. Pl.’s Mem. of Law in
Support of his Mot. for Summ. J. (“Pl.’s Mem.”) [Dkt. # 51] at 4; Letter from Ernest Hunter to
Ronnie Charles (July 1, 2008), Ex. 4 to Pl.’s Mot (“July 1 Letter”). In the letter, Hunter
complained of “discrimination, cronyism, and mismanagement” within CFSA. July 1 Letter at
1–2. He also expressed his dissatisfaction with his most recent performance evaluation and with
CFSA’s AWS approval process. Id. That same month, Hunter sent an email to the “Hotline
Inspector General” complaining of abuses of authority within CFSA, including “fraudulent
funding documents.” Pl.’s Mem. at 4.
A month later, on August 6, 2008, plaintiff wrote a second letter to Mr. Charles,
expressing the same concerns contained in the first letter. See Letter from Ernest Hunter to
Ronnie Charles (Aug. 6, 2008), Ex. 6 to Pl.’s Mot. (“August 6 Letter”). The next day, Hunter
met with his immediate supervisor Catherine Higgins, Ronnie Charles, and the Supervisory
Management Services Liaison, LaTonya Bryant, to discuss his second letter. Pl.’s Mem. at 4;
2
OHR Letter at 5; Bryant Decl., Ex. H to Def.’s Mot at 1. The parties disagree as to why the
meeting degenerated and who was at fault, but it is undisputed that the meeting became highly
contentious. Pl.’s Mem. at 5; Def.’s Mem. of Points and Authorities in Support of Cross-Mot.
for Summ. J. (“Def.’s Mem.”) at 4. Latonya Bryant describes Hunter’s behavior as “angry and
agitated,” “aggressive and belligerent.” Bryant Decl. ¶¶ 6–7. His behavior was described by
management as “erratic, hostile, and often explosive,” and “aggressive[] toward the persons
conducting the meeting, alternatively friendly and cordial one minute and blatantly disrespectful
another.” Letter from Stan Spaght to Ernest Hunter (Aug. 8, 2008), Ex. 14 to Pl.’s Mot.
(“Fitness for Duty Letter”) at 1.
After the meeting, Hunter sent an email to the Director of CFSA Roque Gerald, alleging
that Charles and other managers were abusing their authority. Email from Ernest Hunter to
Roque Gerald (Aug. 7, 2008), Ex. 8 to Pl.’s Mot. Hunter also reported he had already informed
the Inspector General that CFSA management had falsified funding documents. Id.
Another meeting was held the next day. Pl.’s Mem. at 5; Def.’s Mem. at 4. The
participants included Hunter, his union representatives, Ms. Higgins, and representatives from
the Human Resources Department. Pl.’s Mem. at 5. At the meeting, Hunter was informed that
he would be placed on a ten-day period of paid administrative leave pending his completion of a
“fitness for duty” examination because of his behavior at the last meeting. Pl.’s Mem. at 5–6;
Def.’s Mem. at 4–5. Hunter also informed those at the meeting about the complaints he had
made to the Inspector General. Pl.’s Mem. at 7; Def.’s Mem. at 5.
Hunter was permitted to have his own physician administer the fitness for duty
examination. Hearing before Mag. J., July 30, 2012. The exam took approximately ten minutes
and Hunter was responsible for the co-payment for the appointment. Id. Hunter successfully
3
completed the fitness for duty examination within the 10 day administrative leave period, and on
August 18, 2008, he returned to his prior position. Pl.’s Mem. at 8–9; Def.’s Mem. at 5.
Hunter filed his original complaint in this Court on August 7, 2009. [Dkt. # 1]. After
filing an official complaint with the D.C. Office of Human Rights and a complaint with the
Equal Employment Office, both alleging gender discrimination and retaliation, Hunter filed an
amended and second amended complaint in this case. [Dkt. # 3, 20]; see OHR and EEOC
Charges of Discrimination, Ex. 24 to Pl.’s Mot.; Pl.’s Mem. at 9. Both administrative complaints
were subsequently denied. OHR Letter of Determination, Ex. 10 to Pl.’s Mot.; OHR Notice of
the Right to File a Discrimination Complaint, Ex. 22 to Pl.’s Mot., EEOC Dismissal and Notice
of Rights, Ex. 26 to Pl.’s Mot.
Meanwhile, Hunter remained in his job at CFSA. The only notable events that occurred
between his return on August 18, 2008, and the RIF on May 6, 2010 were: (1) In January 2010,
Hunter successfully challenged a negative comment on a performance evaluation that he had
received from Contracts Manager Jacque McDonald and Chief Contracting Officer Tara
Sigamoni, see Performance Eval. And Tracking Form, Ex. 29 to Pl.’s Mot.; Letter from Ernest
Hunter to Dexter Starkes (Jan. 21, 2010), Ex. 31 to Pl.’s Mot.; Pl.’s Mem. at 17–18, and (2) in
May 2010, Hunter wrote a letter to the Chief Administrative Officer at CFSA challenging the
method used to calculate his tenure in relation to the method used for newer employees. Letter
from Ernest Hunter to Ray Davidson (May 3, 2010), Ex. 36 to Pl.’s Mot.
On May 6, 2010, Hunter received a Reduction in Force notice. RIF Notice. He was
placed on immediate administrative leave until June 11, 2010, when he was terminated. Pl.’s
Mem. at 21; RIF Notice.
4
Hunter filed the Third Amended Complaint in this case on November 4, 2010 naming the
District of Columbia as the sole defendant. The complaint alleged that defendant violated Title
VII of the Civil Rights Act of 1964 by engaging in disparate treatment on the basis of gender
(Count I), retaliation (Count II), and hostile work environment (Count III); the D.C.
Whistleblower Protection Act (Count IV); the D.C. Human Rights Act (Count V); and the Fifth
Amendment of the Constitution of the United States (Count VI). Third Am. Compl. ¶¶ 38–70.
Defendant filed a motion to motion to dismiss, which the Court granted in part. Order (July 15,
2011) [Dkt. # 41]. The Court dismissed the claims for hostile work environment and for
violation of the Fifth Amendment. Id. For the discrimination and retaliation claims, the Court
divided the allegedly unlawful acts into two categories: the 2008 acts and the 2010 acts. Id.
The Court dismissed the claims to the extent that they were based on the 2010 acts for failure to
exhaust administrative remedies. Id. Thus, the only claims that remain are for disparate
treatment (Count I) and retaliation (Count II) under Title VII relating to the 2008 acts, violation
of the D.C. Whistleblower Protection Act (Count IV), and violation of the D.C. Human Rights
Act (Count V). Id.
After Hunter filed the Third Amended Complaint, the Court granted a motion to
withdraw filed by his attorney, and Hunter notified the Court of his desire to proceed pro se.
[Dkt. # 36, 37]. On October 12, 2011, the Court referred the case to a Magistrate Judge for full
case management, including preparation of a report and recommendation for any dispositive
motions under Local Rule of Civil Procedure 72.3. The parties cross-moved for summary
judgment and the Magistrate Judge issued his Report and Recommendation, recommending that
the Court deny Hunter’s motion for summary judgment and grant the District’s cross-motion.
Hunter has objected to the Magistrate Judge’s recommendation.
5
STANDARD OF REVIEW
When a party objects to a magistrate judge’s recommendation, the court “must determine
de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3); see also Smith v. District of Columbia, 846 F. Supp. 2d 197, 198 (D.D.C.
2012); D.D. ex rel. Davis v. District of Columbia, 470 F. Supp. 2d 1, 1 (D.D.C. 2007). The
Court may “accept, reject, or modify” the magistrate judge’s recommendation, “receive further
evidence,” or “return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3).
Summary judgment is appropriate “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). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). “The rule
governing cross-motions for summary judgment . . . is that neither party waives the right to a full
trial on the merits by filing its own motion; each side concedes that no material facts are at issue
6
only for the purposes of its own motion.” Sherwood v. Wash. Post, 871 F.2d 1144, 1148 n.4
(D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In
assessing each party’s motion, “[a]ll underlying facts and inferences are analyzed in the light
most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp.
2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
Where a plaintiff proceeds pro se, “the Court must take particular care to construe the
plaintiff’s filings liberally, for such complaints are held ‘to less stringent standards than formal
pleadings drafted by lawyers.’” Cheeks v. Fort Myers Constr. Co., 722 F. Supp. 2d 93, 107
(D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
ANALYSIS
Hunter’s does not identify with any specificity which findings of the Magistrate Judge he
believes are wrong and for what reasons; rather, he generally objects to the recommended
disposition and repeats the factual allegations and arguments contained in his motion for
summary judgment and opposition to the District’s cross-motion.
Hunter spends a significant portion of his objections addressing his 2010 termination,
Objections to Magistrates [sic] Judges [sic] Proposed Findings and Recommendations (“Pl.’s
Objections”) [Dkt. # 72] at 1–2, 5–6, despite the fact that this Court previously dismissed any
Title VII claims based on the District’s 2010 acts for failure to exhaust administrative remedies,
Order (July 15, 2011) [Dkt. # 41]. He attempts to resuscitate those claims by attaching to his
objections two documents that he claims are evidence that he did exhaust his administrative
remedies. The first of those documents, which, according to Hunter, “demonstrates Plaintiff
filed a complaint with the EEOC in February 2011,” Pl.’s Objections at 8, is completely illegible.
Ex. 1 to Pl.’s Objections. The second, which allegedly “shows that Plaintiff also filed a similar
7
complaint with the DC Office of Human Rights on March 6, 2011 that was never acted on,” Pl.’s
Objections at 8, appears to be a letter from Hunter dated March 6, 2011, addressed to Gustavo F.
Velasques, Director of the District of Columbia Office of Human Rights that begins, “Consistent
with Section 2-14013.4 of the DC Human Rights Act, I am filing with the Office of Human
Rights a formal complaint of discrimination/retaliation against the DC Government.” Ex. 2 to
Pl.’s Objections.
At the outset, the Court notes that it need not consider new evidence that Hunter failed to
submit during the motion to dismiss or summary judgment briefing. Fed. R. Civ. P. 72(b)(3)
(stating that the district judge “may” receive further evidence). Nonetheless, the documents
plaintiff has submitted are insufficient to rescue his dismissed claims. To exhaust administrative
remedies under Title VII, a plaintiff must file a charge with the EEOC outlining his allegations.
42 U.S.C. § 2000e-5(e); see Duberry v. Inter-Con Sec. Systems, Inc., -- F. Supp. 2d --, 2012 WL
4923905, at *3 (D.D.C. Oct. 17, 2012). In the District of Columbia, the charge must be filed
within 300 days of the challenged act. Duberry, 2012 WL 4923905, at *3. Moreover, the
plaintiff may only bring suit in federal court within ninety days after the EEOC notifies him of
his right to sue through the issuance of a right-to-sue letter, or after a complaint has been pending
before the agency or the EEOC for at least 180 days. 42 U.S.C. §§ 2000e-5(f)(1), 2000e-16(c);
see Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); Ellison v. Napolitano, -- F. Supp.
2d --, No. 11-1386, 2012 WL 5381399, at *4–5 (D.D.C. Nov. 4, 2012). The documents plaintiff
submits do not demonstrate that he filed a formal charge with the EEOC, that he received a right-
8
to-sue letter, or that he filed this suit within 90 days of his notice of the right to sue, or after his
complaint had been pending before the EEOC for at least 180 days. 1
The remaining claims, which the Court will address in turn, are: (1) gender
discrimination under Title VII based on the 2008 acts; (2) retaliation based on the 2008 acts; (3)
violation of the D.C. Whistleblower Protection Act based on the 2008 and 2010 acts; and (4)
violation of the D.C. Human Rights Act based on the 2008 and 2010 acts.
I. The Court will deny plaintiff’s motion for summary judgment and grant
defendant’s cross-motion as to the remaining portion of Count II (Gender
discrimination under Title VII).
Hunter claims that the District treated him “in a disparate manner” on the basis of his
gender when his managers initially denied his application for participation in the AWS program,
1 In his objections, Hunter also takes issue with the way discovery proceeded in this case,
i.e., plaintiff alleges that he asked for and was denied specifics relating to fitness for duty exams
during one of several phone conferences between the parties and the Magistrate Judge; the
attorneys refused to turn over any responsive emails out of the more than 8,000 they claim to
have reviewed; and the attorneys obstructed justice and unnecessarily delayed this matter. Pl.’s
Objections at 2. This matter was referred to the Magistrate Judge for full case management.
Under Local Rule of Civil Procedure 72.2, a magistrate judge may hear and determine any
pretrial motion or matter other than those specified in local rule 72.3. Discovery disputes are not
specified under local rule 72.3. Any party may file written objections to a magistrate judge’s
ruling within 14 days after being served with the order of the magistrate judge. “The objections
shall specifically designate the order or part thereof to which objection is made, and the basis for
the objection.” LCvR 72.2(b). Only then will the district judge review the magistrate judge’s
decision under a clearly erroneous standard. LCvR 72.2(c). Since plaintiff has not followed that
procedure, the Court will not consider Hunter’s complaints about the discovery process.
Moreover, the only discovery ruling on the docket – in which the Magistrate Judge sustained
defendant's objection to disclosing the names of employees who were administered fitness for
duty exams and the reasons for administering those exams – appears to be well within the
discretion of the Magistrate Judge on relevance grounds. Minute Order (Dec. 8, 2011); see
LCvR 72.2 (a district judge reviews the magistrate judge’s order on discovery disputes under a
“clearly erroneous or contrary to law” standard). Finally, since the Court finds that the fitness
for duty exam is not an actionable adverse action under Title VII for both disparate treatment and
retaliation, Hunter’s objections to discovery rulings regarding defendant’s reasons for
administering fitness for duty exams in other cases ultimately are not relevant to the disposition
of this case.
9
required that he take the fitness for duty examination, and placed him on administrative leave
pending the results of the examination. Pl.’s Mem. at 37–38.
The two essential elements of a gender discrimination claim under Title VII are: (i) that
the plaintiff suffered an adverse employment action; and (ii) that the action was based upon the
plaintiff’s gender. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
A. As a matter of law, plaintiff has not shown that he suffered any adverse
employment action.
As the Magistrate Judge pointed out, not every action by an employer against an
employee qualifies as an “adverse employment action” that is protected by Title VII. Forkkio v.
Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002); Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir.
2001) (“[N]ot everything that makes an employee unhappy is an actionable adverse action.”).
An actionable adverse employment action is a “a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998) (citations omitted). To ultimately establish an adverse employment action, a
plaintiff must show that he “experience[d] materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. This
harm usually takes the form of “direct economic harm,” Burlington Indus., 524 U.S. at 762,
affecting, for instance, an employee’s grade or salary. Taylor v. Small, 350 F.3d 1286, 1293
(D.C. Cir. 2003).
None of the actions that Hunter challenges here rises to the level of an adverse
employment action.
10
First, there is no showing that defendant’s denial of Hunter’s application for the AWS
program affected his employment status, such as his grade or salary. See Taylor, 350 F.3d at
1293. The denial merely prevented Hunter from changing his work hours to a Monday through
Thursday schedule so that he could take Fridays off. Pl.’s Objections at 6. Hunter submits no
evidence and, indeed, does not even argue that the denial affected his job responsibilities, his
pay, his grade, or his chances for promotion. Although in his objections to the Magistrate
Judge’s Report and Recommendation, Hunter claims that the denial “adversely impacted
Plaintiff physically, mentally and financially,” because it prevented him from using Fridays to
work on his new home inspection business, Pl.’s Objections at 6, this is not the type of harm that
is actionable under Title VII.
Moreover, even if the denial was an “adverse employment action,” an employer may cure
an adverse employment action before that action becomes the subject of litigation. Taylor, 350
F.3d at 1293–94. That is exactly what happened here. The record shows, and Hunter does not
dispute, that management approved his renewed application for AWS three weeks after the initial
application was denied. See OHR Letter at 4.
Nor do the period of administrative leave and fitness for duty examination constitute
actionable adverse employment actions. The period of administrative leave was paid, it lasted
only ten days, it did not result in disciplinary action being taken, and plaintiff returned to the
same job responsibilities, pay, grade, and benefits after it concluded. Pl.’s Mem. at 8–10; Def.’s
Mem. at 5. See Walker v. Johnson, 501 F. Supp. 2d 156, 171 (D.D.C. 2007) (finding no adverse
employment action where employee was paid for the time he spent on administrative leave, no
other employment action was taken against him, the investigation concluded that he engaged in
no wrongdoing, and he was returned to his former position after the period of leave concluded).
11
The fitness for duty examination that Hunter completed while on his paid leave, similarly, did
not result in any change in Hunter’s employment status or benefits. Although Hunter paid the
out-of-pocket co-pay to his physician to perform the tem-minute examination, these indirect
costs are not the type of direct economic harm resulting from a change in the terms, conditions,
or privileges of employment or future employment opportunities that courts recognize as
actionable.
Accordingly, none of the actions that Hunter challenges here constitute the type of
adverse employment actions that are actionable under Title VII for discrimination. This finding
alone provides a sufficient basis for the Court to grant defendant’s motion for summary judgment
as to Count I. Thus, Hunter’s attacks on the credibility of defendant’s evidence do not supply the
grounds to reject the Magistrate Judge’s conclusion. See Pl.’s Objections at 2–5. It is the
plaintiff’s burden to show that he has suffered some adverse employment action, Baloch, 550
F.3d at 1197 n.2, and Hunter has failed to do so in this case, even if all the evidence he has
submitted is assumed to be true.
B. No reasonable jury could find that defendant’s actions were motivated by
discrimination on the basis of gender.
Even if the Court were to find that Hunter suffered an adverse employment action, no
reasonable jury could find that the District’s actions were motivated by discrimination on the
basis of gender. Where, as here, a plaintiff puts forth only indirect evidence of discrimination,
the court must apply the three-part test that the Supreme Court established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Taylor v. Small, 350 F.3d 1286, 1292
(D.C. Cir. 2003). First, the plaintiff bears the burden of establishing a prima facie case of
discrimination by a preponderance of the evidence. Id., citing Stella v. Mineta, 284 F.3d 135,
144 (D.C. Cir. 2002). If the plaintiff meets that burden, the employer must then “articulate a
12
legitimate, nondiscriminatory reason for its actions.” Id., quoting Stella, 284 F.3d at 144. Once
that burden has been met, the burden shifts back to the plaintiff to demonstrate that the
employer’s stated reason was pretextual and that the true reason was discriminatory. Id., citing
Stella, 284 F.3d at 144. At the motion for summary judgment stage, if the employer has asserted
a legitimate non-discriminatory reason for its actions, the court need only ask “whether 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 gender. Baloch, 550 F.3d at 1197 n.2.
(internal quotation marks and citations omitted).
Here, defendant has submitted legitimate non-discriminatory reasons for the denial of
plaintiff’s first application for the AWS program, for placing him on administrative leave, and
for requiring him to take the fitness for duty examination. As for the AWS application,
defendant submits an email from the CFSA Supervisory Management Services Liaison for the
Office of the Senior Deputy for Administration Latonya Bryant to Hunter, which explains that
plaintiff’s AWS request was denied because CPA staff were not eligible for “compressed
schedule A nor Friday’s [sic] off.” Email from LaTonya Bryant to Ernest Hunter (July 8, 2008).
The email states that this policy was presented in a staff meeting a month earlier, and that it was
in accordance with section VII.B of the procedures section of the AWS policy. Id. As for the
fitness for duty examination, defendant submits evidence that CFSA management was concerned
about Hunter’s behavior during the August 7, 2008 meeting. Bryant Decl. ¶¶ 6–8; Higgins
Decl., Ex. I to Def.’s Cross-Mot. ¶¶ 10–12. At the direction of Ronnie Charles, Human
Resources prepared a letter for Ms. Bryant to sign requiring Hunter to submit to the fitness for
duty exam with paid administrative leave. Bryant Decl. ¶¶ 9–10. This complies with District of
13
Columbia personnel policy, which states that “an employing agency may require a medical
examination because of an employee’s conduct or performance on the job. Such an examination
shall be ordered only upon approval by the personnel authority of a written request from the
agency.” D.C. Personnel Regulations, pt. I, ch. 20B, § 2049.8, Ex. J to Def.’s Cross-Mot. In
addition, the District’s policy requires that an employee be given administrative leave for up to
ten consecutive workdays for the purpose of taking any examination that his agency has
requested him to take in order to continue his or her present job. 6-B DCMR §§ 1266.1, 1266.9
(2009), Ex. 18 to Pl.’s Mot.
Hunter argues that the Court should not place any weight on the declarations of Ms.
Bryant and Ms. Higgins because these two witnesses lack credibility. 2 Pl.’s Objections at 3–4.
But that is not the issue. The question is whether plaintiff has come forward with evidence that
would tend to show that the employer’s stated grounds are pretextual.
Courts consider whether the jury could infer discrimination from “(1) the plaintiff’s
prima facie case, (2) any evidence that the plaintiff presents to attack the employer’s proffered
explanation, and (3) any further evidence of discrimination that may be available to the
plaintiff.” Waterhouse v. District of Columbia, 298 F.3d 989, 992–93 (D.C. Cir. 2002), quoting
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998). Courts do not require that
the plaintiff present evidence in each of these categories, but they instead assess the plaintiff’s
challenge to the employer’s reason in light of the totality of the circumstances. Pierson v. Wash.
Metro. Area Transit Auth., 821 F. Supp. 2d 360, 367 (D.D.C. 2011), citing Aka, 156 F.3d at2 Hunter also opposes the Court’s reliance on statements made by Ronnie Charles and
Roque Gerald because “the party’s [sic] also agreed to not use any witness in support of any
dispositive motions that were not made available during discovery.” Pl.’s Objections at 2.
Defendant has not submitted any declarations or depositions of these individuals, and the Court
does not rely on any statements made by them.
14
1289. However, to meet his burden, the plaintiff must demonstrate “both that the [employer’s
proffered] reason was false, and that discrimination was the real reason.” Weber v. Battista, 494
F.3d 179, 186 (D.C. Cir. 2007), quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993). 3
To support his claim that defendant’s motive for denying his original AWS application
was discriminatory, Hunter submits an affidavit from Jacque McDonald, stating that a female
employee, Rhonda Thompson, “maintained her AWS schedule throughout her tenure with the
administration.” McDonald Aff., Ex. 2 to Pl.’s Mot. ¶ 16; see also Pl.’s Objections at 6; Pl.’s
Opp. to Def.’s Cross-Mot. [Dkt. # 68] at 9. The comparison between Thompson and Hunter,
however, is not particularly enlightening because even if the Court treats the statement as true,
there is no indication that Thompson’s alternate schedule was the same as the schedule that
Hunter sought and was denied. This is particularly important because the letter rejecting
Hunter’s application indicated that the problem with his application was the specific schedule he
was seeking. This, without any other evidence tying the denial of his application to his gender, is
insufficient to meet Hunter’s burden of proof. Moreover, this Court agrees with the Magistrate
Judge that the fact defendant approved Hunter’s renewed AWS application three weeks after it
denied the initial application undermines his argument that the initial denial was discriminatory.
Similarly, Hunter does not meet his burden of proving that there is a genuine dispute of
material fact as to whether defendant’s actual reason for placing him on administrative leave and
requiring the fitness for duty examination was discriminatory. First, the fact that after Hunter
3 Defendant argues that plaintiff must surpass an even higher burden since he is alleging
“reverse discrimination” – discrimination against a male employee. Def.’s Mem. at 8. Since the
Court finds that plaintiff does not even satisfy the ordinary threshold, it declines to determine
whether a heightened burden applies.
15
passed the fitness for duty examination the District immediately permitted him to return to his
position with the same pay and benefits weakens his discrimination claim.
In an attempt to show discrimination, Hunter submits a list of employees charged with
various performance issues that were not subject to a fitness for duty exam. Exs. 56–60 to Pl.’s
Mot. However, the list does not show that female employees were treated any differently than
male employees. As the Magistrate Judge pointed out, it is not possible to identify the gender of
the employees on the list since the names are redacted. Moreover, the information about
employees whose gender is decipherable by the use of gender-specific pronouns does not show a
pattern of differential treatment by gender.
Hunter also makes several assertions that go to the plausibility of the government’s
proffered reason:
The two supervisors who recommended the administrative leave and examination
lack credibility because of their alleged history of fraud, their misrepresentations
to plaintiff regarding the purpose of the August 7 meeting, and misrepresentations
they made at the meeting. Pl.’s Mem. at 37; Pl.’s Objections at 3–5, 7.
Hunter did not have any prior disciplinary record. Pl.’s Mem. at 37.
Management did not follow the correct authorization process. Pl.’s Mem. at 37;
Pl.’s Objections at 7.
Plaintiff’s conduct did not fit the CFSA criteria for issuing a fitness for duty
examination. Pl.’s Objections at 5.
Management had other less severe options available to them. Pl.’s Mem. at 10;
Pl.’s Objections at 7.
Putting aside the question of whether these assertions are even supported by sufficient
evidence, they are ultimately unavailing because none of them purport to link the District’s
actions to Hunter’s gender. Because Hunter fails to meet his burden, the Court will grant
defendant’s motion for summary judgment as to Count I.
16
II. The Court will deny plaintiff’s motion for summary judgment and grant
defendant’s cross-motion as to Count II (Retaliation under Title VII).
In Count II, Hunter alleges that defendant engaged in unlawful retaliation against him, in
violation of Title VII, when it denied his AWS application, required him to take the fitness for
duty examination, and placed him on administrative leave. Third Am. Compl. ¶¶ 48–49; Pl.’s
Mem. at 37–38.
Like claims for disparate treatment, claims for retaliation based on circumstantial
evidence are analyzed under the McDonnell Douglas burden-shifting framework. Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). To make a prima facie case of retaliation,
plaintiff must show “(1) that he engaged in statutorily protected activity; (2) that he suffered a
materially adverse action by his employer; and (3) that a causal link connects the two.” Id.,citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).
A. No reasonable jury could conclude that Hunter suffered a materially adverse
action.
As with the disparate treatment claim, Hunter does not show that his employer’s denial of
his AWS application satisfies the standard for an adverse action in the retaliation context. It is
true that “some actions not sufficiently adverse under a disparate treatment theory may sustain a
retaliation claim,” Manuel v. Potter, 685 F. Supp. 2d 46, 66 (D.D.C. 2010) (citations omitted),
but as with disparate treatment, not every bad act suffered by an employee is sufficient. In the
retaliation context, an action is “materially adverse” if it “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation
omitted).
17
In Burlington Northern, the Supreme Court described how courts must consider the
particular circumstances of an individual plaintiff. The Court explained, for example, that “[a]
schedule change in an employee’s work schedule may make little difference to many workers,
but may matter enormously to a young mother with school-age children.” Id. at 69. There are
no facts in the record that would show that the denial of Hunter’s AWS application, which was
approved three weeks later, would be more than a “trivial harm” to a reasonable person in
plaintiff’s position. See id. at 68. Hunter asserts in his objections to the Magistrate Judge’s
report and recommendation that his schedule interfered with a new business he was starting:
“[p]laintiff indeed had started a Home Inspection business and his desire to be off on Fridays was
related to his business pursuits.” Pl.’s Objections at 6. This is Hunter’s first mention of any
concrete affects the denial may have had on him, and it is not supported by any evidence in the
record. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (refusing to consider
allegation that employer hired applicant with “less experience” because affiant provided no
“supporting facts” for her claim). Moreover, the interference of his schedule with his side
business aspirations does not constitute the kind of “material adversity” that supports a
retaliation claim because the inability to make the change at issue here would not have dissuaded
a reasonable person in Hunter’s position from making or supporting a charge of discrimination.
Burlington N., 548 U.S. at 68.
Similarly, no reasonable jury could find that the ten days of administrative leave
constitute materially adverse actions. As described above, plaintiff was reinstated into exactly
the same position that he was in before the period of administrative leave. There is no evidence
that his duties, responsibilities, pay grade, or chances for promotion changed. Paid suspension
alone is not enough to rise to the level of materially adverse unless it causes some further harm
18
or hardship. Compare Greer v. Paulson, 505 F.3d 1306, 1317–18 (D.C. Cir. 2007) (holding that
suspension with back pay was materially adverse because plaintiff presented evidence of a
demonstrable effect involving objectively tangible harm, which included personal bankruptcy,
two real estate foreclosures, and negative marks on her employment record), with Harper v.
Potter, 456 F. Supp. 2d 25, 29 (D.D.C. 2006) (holding seven-day suspension was not materially
adverse because although it was disciplinary in nature, plaintiff was able to remain on the job
and in pay status).
The fitness for duty examination does not constitute an actionable materially adverse
action either. As explained above, Hunter remained on paid administrative leave while the
examination was conducted, he was able to have his own personal physician conduct the exam,
and once it was completed, he returned to the same position he had been in before. Hunter’s
unsupported assertion in his objection to the Magistrate Judge’s report and recommendation that
“[e]ach of the acts by Defendant adversely impacted Plaintiff physically, mentally and
financially, manifesting itself in insomnia, and anxiety,” Pl.’s Objections at 6, is not supported
by any evidence in the record and does not show that the fitness for duty examination would
dissuade a reasonable employee from making or supporting a charge of discrimination. See
Greene, 164 F.3d at 675.
B. Hunter has not submitted sufficient evidence for a reasonable jury to find that
he engaged in protected activity under Title VII.
Even if the Court were to consider these events to be materially adverse actions, there is
no evidence that Hunter engaged in an activity that is protected under Title VII. As with
discrimination claims, once the defendant has articulated a legitimate non-retaliatory reason for
its actions, “the central question on summary judgment is whether the employee produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory
19
reason was not the actual reason and that the employer intentionally . . . retaliated against the
employee” for engaging in a protected activity. Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir.
2011) (internal quotation marks and citations omitted).
“[O]pposition to an unlawful employment practice qualifies as protected activity even if
it may have occurred outside of the EEO context.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 77
n.7 (D.D.C. 2007), citing Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)
(internal quotation marks omitted). However, the complaint must in some way allege
discrimination made unlawful by Title VII. Williams v. Spencer, -- F. Supp. 2d --, 2012 WL
3264569, at *8 (D.D.C. Aug. 13, 2012), citing Broderick, 437 F.3d at 1232; 42 U.S.C. § 2000e-
3(a). Accordingly, the complaints and reports that Hunter identifies as his “protected activities”
must have in some way alleged discrimination on the basis of race, color, religion, gender or
national origin. See 42 U.S.C. §§ 2000e-2, 2000e-3(a).
Hunter identifies the following acts as his protected activities: (1) he “reported
mismanagement and fraudulent activity to the OIG”; (2) he “spoke out against and complained
about discriminatory policies and practices”; and (3) he “filed an EEO complaint.” Third Am.
Compl. ¶ 48. As a preliminary matter, Hunter cannot rely on his EEO complaint as a protected
activity because he submitted the complaint on November 18, 2008 – over four months after
defendant denied plaintiff’s original AWS application and three months after it issued the
administrative leave and fitness for duty examination. Hunter cannot make a plausible argument
that defendant’s actions were taken in retaliation for something that occurred afterward.
As to the first category of protected activity – Hunter’s reports of mismanagement and
fraudulent activity to the OIG – nothing in the record demonstrates that his complaint to the OIG
alleged discrimination on the basis of the characteristics protected by Title VII, so the Court
20
cannot find it to be protected activity. 4 In fact, the affidavit of Jacque McDonald that plaintiff
submits in support of his motion for summary judgment states that the OIG complaint reported
allegations of fraud that Hunter witnessed within the agency; it says nothing about allegations of
discrimination on the basis of a protected category. McDonald Aff., Ex. 2 to Pl.’s Mot. ¶¶ 8–15. 5
As to the second category of protected activity – Hunter’s complaints about
discriminatory policies and practices – Hunter attaches several letters that he submitted to CFSA
management and other District officials as evidence. See, e.g., Exs. 4, 7–9 to Pl.’s Mot.
However, these letters do not allege discrimination on the basis of the protected characteristics
either. The first letter identifies Hunter’s concerns as “lack of experience in key positions,
cronyism and discriminatory practices.” July 1 Letter at 1. However, even though Hunter uses
the word “discriminatory,” the substance of the letter does not allege any discrimination on the
basis of race, color, religion, or national origin. Instead, it alleges discrimination on the basis of
cronyism – a category that is not protected by Title VII. The statement that comes closest to a
protected complaint states:
I am deeply disappointed with some of the negative and unprofessional
behavior of the current Management within this administration. In recent
weeks I have been approached by different coworkers at different times,
informing me of malicious comments being said about me, including
questioning my competency from a Professional level and attacking my
character by questioning my coworkers as to whether I smoke crack. I
have worked for the District for many years and I refuse to be treated in
such a manner, especially by individuals who do not have the prerequisite
experience to perform their duties.
4 Plaintiff attaches a document to his Motion for Summary Judgment, which he labels
“Email to Hotline Inspector General 7-28-08,” but the document is illegible. See Ex. 5 to Pl.’s
Mot.
5 Moreover, Hunter allegedly submitted the complaint on July 28, 2008 – nearly a month
after the denial of his AWS application, so Hunter cannot establish that the complaint caused the
department to deny his AWS application.
21
Id. He goes on to suggest that the department would be better served by new management
instead of “those who promote themselves and their cronies into positions.” Id. Since he does
not even allude to discrimination on the basis of the categories protected by Title VII, this Court
cannot find that the letter constitutes a “protected activity” under that statute.
Of the other letters to CFSA management and other District officials that Hunter submits
as evidence of retaliation, some post-date the alleged retaliatory actions, and therefore will not be
considered by the Court. See, e.g., Letter from Ernest Hunter to Yasmine Mitchell (Aug. 19,
2008), Ex. 9 to Pl.’s Mot.; Letter from Ernest Hunter to Mayor Fenty (Oct. 27, 2008), Ex. 21 to
Pl.’s Mot. Those that pre-date the alleged retaliatory actions generally reassert the same
allegations and similarly do not contain any mention of discrimination on the basis of the
categories protected by Title VII. See, e.g., August 6 Letter; Email from Ernest Hunter to Gerald
Roque, Ex. 7 to Pl.’s Mot. (Aug. 7, 2008) (illegible); Email from Ernest Hunter to Gerald Roque,
Ex. 8 to Pl.’s Mot. (Aug. 7, 2008); Email from Earnest Hunter to Ronnie Charles, Ex. 19 to Pl.’s
Mot. (Aug. 7, 2008).
Since the Court finds no evidence that plaintiff engaged in activity that is protected under
Title VII prior to the allegedly retaliatory actions, it cannot find that the actions were taken in
retaliation for protected activity.
C. No reasonable jury could find that defendant’s actions were motivated by
retaliation for Hunter’s protected activity.
Finally, even if the Court were to find that the initial denial of Hunter’s AWS application
and the imposition of the fitness for duty exam and administrative leave constitute adverse
actions, and that Hunter’s complaints were protected under Title VII, there is no evidence of a
causal relationship between the allegedly retaliatory actions and the complaints that predated
them. “The [C]ourt reviews each of the three relevant categories of evidence – prima facie,
22
pretext, and any other – to determine whether they either separately or in combination provide
sufficient evidence for a reasonable jury to infer retaliation.” Jones, 557 F.3d at 679 (internal
quotation marks and citation omitted).
As to the AWS application denial, the only evidence that Hunter can point to in order to
support his retaliation claim is the temporal proximity between his complaint to Ronnie Charles
and the denial of his application. 6 That alone is insufficient. Hamilton v. Geithner, 666 F.3d
1344, 1359 (D.C.Cir. 2012), quoting Woodruf v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007)
(explaining that even where there is temporal proximity between the protected activity and the
alleged retaliatory action, it must be “[kept] in mind that ‘positive evidence beyond mere
proximity is required to defeat the presumption that the [employer’s] proffered explanations are
genuine.’”).
Hunter also fails to present sufficient evidence to support his claim that the fitness for
duty examination and administrative leave were retaliatory. Hunter first presents an affidavit of
Jacque McDonald, a former employee of the Contracts Procurement Administration of the Child
and Family Services Agency beginning in April 2007, that states that based on her personal
experiences within the agency, she believes that “Hunter was retaliated against because of his
various complaints and treated different than other employees.” McDonald Aff. ¶ 18. This
statement of opinion, of questionable admissibility, does little to establish actionable retaliation
under Title VII because the rest of the affidavit reveals that McDonald believes Hunter was
retaliated against for his complaints about fraud and cronyism, not complaints about
discrimination on the basis of one of the protected categories under Title VII. See id. ¶¶ 8–19.
6 The letter to Ronnie Charles is the only complaint that Hunter identifies that occurred
before his AWS application was denied.
23
Hunter also points to the fact that defendant did not satisfy the necessary requirements for
imposing the fitness for duty examination as evidence of pretext. Pl.’s Mem. at 37; Pl.’s
Objections at 5. Hunter questions the authority of Y. Mitchell to authorize the examination.
Pl.’s Mem. at 37; Pl.’s Objections at 4. But the fitness-for-duty letter is actually signed by Stan
Spaght, who is identified as a Human Resources Manager. Fitness for Duty Letter. There
appears to be no dispute over Spaght’s authority to authorize the examination. Plaintiff also
argues that defendant never documented any of the three circumstances in which a fitness for
duty examination is required under the governing policy. Pl.’s Mem. at 37; Pl.’s Objections at 4.
Under District of Columbia policy, a fitness for duty examination may be required when an
employee: “(1) [m]ay pose a hazard or risk to him or herself or others; (2) [h]as been ‘off from
work’ for an extended period of time due to illness; or (3) [i]s unable to perform duties of his or
her position of record that were previously performed.” Procedures for Fitness-for-Duty Medical
Examinations, D.C. Dept of Human Resources District Personnel Manual Issuance System E-
DPM Instruction No. 20B-5 (Jan. 3, 2011), Ex. 17 to Pl.’s Mot. at 1(b). The notice letters
provided to plaintiff by defendant explain that the leave and exam were being imposed because
of Hunter’s “erratic behavior” at the August 7, 2008 meeting. Ex. 12–14 to Pl.’s Mot. In light of
his behavior, the letters express concern about Hunter’s ability to perform the essential functions
of his job. Id. Hunter vehemently disputes these allegations. See Pl.’s Mem. at 5; Pl.’s
Objections at 3–4 (“Plaintiff specifically objects to the mischaracterizations attributed to his
behavior.”). Yet, he submits no evidence to support his assertions that his managers were to
blame for the contentious tone of the meeting, see Pl.’s Mem. at 5, and that defendant’s
characterization of his behavior is false, see Pl.’s Objections at 3–4. Hunter’s own denial of his
managers’ account of the August 7, 2008 meeting is not sufficient for a reasonable jury to find
24
retaliation; rather, the plaintiff must provide proof that the employer is lying about its non-
retaliatory justification. See Brady, 520 F.3d 490, 495 (D.C. Cir. 2008) (stating that although “it
is common at this stage for an employee to attempt to demonstrate that the employer is making
up or lying about the underlying facts that formed the predicate for the employment decision,”
that is ordinarily insufficient for permitting a jury to conclude that the employer is lying about
the underlying facts”); McGrath v. Clinton, 674 F. Supp. 2d 131, 145 (D.D.C. 2009) (plaintiff’s
only evidence that employer was lying about its stated reasons were “his own allegations,” which
was insufficient to prove retaliation). Accordingly, the Court finds that Hunter has not presented
any basis on which a reasonable jury could find that defendant’s asserted reason for imposing the
fitness-for-duty exam is pretextual.
Hunter’s remaining evidence consists of (1) the proximity between his complaints and the
allegedly retaliatory actions, and (2) his later dismissal, which the agency justified as a reduction
in force. Temporal proximity is not sufficient on its own to support a claim of retaliation at the
summary judgment stage. Hamilton, 666 F.3d at 1359. And, while evidence of acts that form
the basis of an unexhausted claim of discrimination – such as Hunter’s dismissal – may serve as
background evidence to support an exhausted claim, Ellison, 2012 WL 5381399, at *5, to
survive summary judgment, the plaintiff must provide some evidence that retaliation was the real
reason for the adverse action. See Weber, 494 F.3d at 186. Even taken together, these
allegations would not form a sufficient basis for a reasonable jury to find that defendant engaged
in actionable retaliation against Hunter because Hunter presents insufficient proof that defendant
is lying about its asserted justification for its actions and no proof that the real reason was
retaliation.
25
Since the Court finds that the allegedly retaliatory actions Hunter claims to have suffered
do not constitute actionable material adverse actions under Title VII, that the complaints he
claims to have motivated them are not protected under Title VII, and that no reasonable jury
could find that the real reason for defendant’s actions was retaliation, the Court will grant
defendant’s motion for summary judgment as to Count II.
III. The Court will not exercise supplemental jurisdiction over Hunter’s state law
claims.
Counts IV and V of the Third Amended Complaint allege violations of the D.C.
Whistleblower Protection Act, Third Am. the D.C. Human Rights Act, id.now been disposed of, the Court no
longer has original jurisdiction over the case and will decline to exercise supplemental
jurisdiction over these state law claims.
Although Hunter objects to the Magistrate Judge’s recommendation that the Court
dismiss his state law claims, his arguments are unavailing. District courts may exercise
supplemental jurisdiction over state claims that “form part of the same case or controversy” as
federal claims over which they have original jurisdiction. 28 U.S.C. § 1367(a). In its discretion,
the Court may decline to exercise supplemental jurisdiction if it has dismissed all claims over
which it has original jurisdiction. Id. § 1367(c)(3). “[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n. 7 (1988); see Edmondson & Gallagher v. Alban Towers Tenants
Ass’n, 48 F.3d 1260, 1267 (D.C.Cir.1995). This Court agrees with the Magistrate Judge that the
balance of factors favors declining to exercise jurisdiction over the remaining state law claims.
26
This result will not deprive Hunter of a fair resolution to his claims because there are no apparent
barriers to his ability to re-file those claims in Superior Court. See 28 U.S.C. § 1367(d) (tolling
the statute of limitations for supplemental state law claims while the claim is pending and for a
period of thirty days after it is dismissed unless State law provides for a longer tolling period);
see also Robertson v. District of Columbia; No. 09-1188, 2010 WL 3238996, at *9 (D.D.C. Aug.
16, 2010) (declining to exercise supplemental jurisdiction over state law claims because the court
had not invested substantial time and resources in them and there were no apparent reasons why
plaintiff could not re-file them in Superior Court).
While Hunter argues that judicial economy favors retaining the state law claims because
the parties have already engaged in pertinent discovery for this case, that discovery will also
form the backdrop for the Superior Court proceeding. Moreover, litigation of the state law
claims may require further discovery concerning the 2010 acts, which are no longer a part of this
case. Therefore, the Court finds that judicial economy would not be served by exercising
jurisdiction over the remaining claims. See Edmondson, 48 F.3d at 1266 (finding dismissal
appropriate where “the district court has invested virtually no time on any of the issues left to be
resolved in [the] case [and where] there has been no trial . . . and little analysis.”).
Although the Court is mindful that the litigants may be required to expend some
additional time and expense in the event that Hunter decides to re-file the state law claims in
D.C. Superior Court, see Pl.’s Objections at 8, these considerations do not outweigh the factors
favoring dismissal. Importantly, “in the interest of comity, federal judges should refrain from
deciding cases founded solely on local law when the requirements for diversity jurisdiction are
not present.” Lowe v. District of Columbia (internal
quotation marks and citations omitted). And as the Magistrate Judge indicated, the D.C.
27
Whistleblower Protection Act presents an undeveloped body of law that is more suitable for
adjudication in Superior Court. See Cannon v. District of Columbia, --- F. Supp. 2d ---, 2012
WL 2673097 at *12 (D.D.C. July 6, 2012) (remanding D.C. Whistleblower Protection Act claim
to Superior Court given the undeveloped state of the law); Lowe, 669 F. Supp. 2d at
(same); see also Doe v. Bd. on Prof’l Responsibility of the D.C. Court of Appeals, 717 F.2d 1424,
1428 (D.C. Cir. 1983) (“[A] federal District Court opinion is no substitute for an authoritative
decision by the courts of the District of Columbia.”). As to the D.C. Human Rights Act claim,
the Court has expended little judicial energy on it up to this point. See Anderson v. Holder, 647
F.3d 1165, 1174 (D.C. Cir. 2011) (“With no federal claims remaining in the case, the district
court also properly declined to exercise supplemental jurisdiction over Anders’s claim under the
D.C. Human Rights Act.”); Mitchell v. Yates, 402 F. Supp. 2d 222, 229 n.4 (remanding D.C.
Human Rights Act claims for resolution in Superior Court after dismissing federal claims).
Accordingly, the Court declines to exercise supplemental jurisdiction over Counts IV and
V of the Third Amended Complaint.
28
CONCLUSION
For the reasons stated above, the Court will adopt the Magistrate Judge’s
recommendation in full. It will deny Hunter’s motion for summary judgment and grant
defendant’s cross-motion as to the remaining portions of Counts I and II. It will also dismiss
Counts IV and V without prejudice. Hunter will have thirty days from the date of dismissal to
re-file his state law claims in the Superior Court of the District of Columbia. A separate order
will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 29, 2012
29