Sun v. District of Columbia Government , 133 F. Supp. 3d 155 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LINDA CHRISTINE SUN, )
)
Plaintiff, )
)
v. ) Civ. Action No. 12-1919 (ABJ)
)
DISTRICT OF COLUMBIA )
GOVERNMENT, et al., )
)
Defendants. )
__________________________________ )
MEMORANDUM OPINION
Plaintiff Linda Sun, a former employee of the District of Columbia Office of the Tenant
Advocate (“OTA”), has sued the District of Columbia, OTA Director Johanna Shreve, and OTA
General Counsel Dennis Taylor for wrongful termination, discrimination, and retaliation. The
claims against Shreve and Taylor have been brought against them in both their official and
individual capacities. The federal claims arise under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e, and 42 U.S.C. § 1981, see Second Am. Compl. [Dkt. # 20] (“Am. Compl.”) at 7–8, 9,
and plaintiff has also brought state and common law claims, invoking the Court’s supplemental
jurisdiction. See Am. Compl. at 1, citing 28 U.S.C. § 1367.
Following a period of discovery, each party moved for summary judgment. See Defs.’
Mot. for Summ. J., [Dkt. # 64]; Pl.’s Mot. for Summ. J. [Dkt. # 73]. Upon consideration of the
motions, oppositions, replies, and supporting documentation, the Court will grant defendants’
motion in part and deny it in part, and it will deny plaintiff’s motion. Count VII of the Second
Amended Complaint for Assault will remain.
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I. BACKGROUND
Plaintiff was born in Shanghai, China, and became a naturalized United States citizen in
May 1972. Am. Compl. ¶ 3. In 2004, plaintiff graduated from Northwestern California University
Law School, but she has not passed a bar exam and is not admitted to practice law in any
jurisdiction. Defs.’ Statement of Undisputed Material Facts [Dkt. # 64] (“Defs.’ SOF”) at 43–48,
¶ 1. OTA hired plaintiff in September 2007 as a Program Support Specialist. Defs.’ SOF ¶ 2.
OTA “provides technical advice and other legal services to tenants regarding disputes with
landlords, including legal representation through lawyers [it] employe[s].” Defs.’ SOF ¶ 2.
Plaintiff’s job included explaining to tenants “on a daily basis” the D.C. Municipal Regulations
covering security deposits and housing code violations. Dep. of Sun [Dkt. # 64-1] (“Sun Dep.”)
at 47:15–19. In addition, plaintiff assisted with mediations in the Office of Administrative
Hearings, advised clients on strategy, and “collected judicial opinions and constructed a formula
for how much of a rebate to request from a specific judge.” Defs.’ SOF ¶ 4, citing Sun Dec. 14,
2010 Email [Dkt. # 64-4] and Sun Dep. at 68:14–69:12.
The undisputed evidence reveals that there came a time when defendant Dennis Taylor,
who was plaintiff’s immediate supervisor, expressed concerns about plaintiff’s engaging in the
unauthorized practice of law. Sun Dep. at 98:10–14. In February 2009, Taylor sent plaintiff an
email titled “Misleading Statement,” in which he informed plaintiff that her email to attorney Parag
Khandhar asking for help in representing an individual in Small Claims Court since she was “not
able to do so myself” was “highly misleading.” Taylor Email, Defs.’ Ex. 9 [Dkt. # 64-9] at 2.
Taylor stated that “[a] reasonable person would read the segment as a peer-to-peer, attorney-to-
attorney communication in which you ask Mr. Khandhar to represent a client for you because you
have a schedule conflict.” Id. Taylor further stated: “[w]e have previously discussed your
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statements of being an attorney or a lawyer and we have addressed your previous practice of
including ‘J.D.’ in your email signature. However, you must also think of how both a lay person
and a lawyer would interpret your words. Please be very careful to not in any way imply that you
are a lawyer. I do not want you to run afoul of District law.” Id.
Plaintiff responded by acknowledging that Taylor’s “point is well taken if there had been
no discussion with Parag and this is the first time we are communicating.” Sun Feb. 12, 2009
Email, Defs.’ Ex. 9 [Dkt. # 64-9] at 3. Plaintiff explained that she had informed Khandhar in a
meeting “several weeks ago” that she was not an attorney and conveyed the difficulties OTA
clients “who do not speak English well” had in getting help from legal services organization
because of the language barrier. Id. Plaintiff then admonished her supervisor:
The danger in statements such as yours once again warn, charge, and
insinuate wrongdoing without sufficient background knowledge. Unless
you have been in on the discussions from the very beginning going back to
several months of communication, it is easy to jump to conclusions based
on supervision information. . . . I think it is also important that you take the
time to ask before reaching conclusions. One of my law professors who
clerked for Justice Thurgood Marshall said he always told his clerks, “Never
assume anything, because it makes an ass out of you and me.”
Id.
The record reflects the fact that plaintiff’s unauthorized practice of law remained an
ongoing concern at the agency, and that plaintiff’s superiors received complaints from multiple
individuals. For example, in May of 2009, the issue was raised by an opposing counsel in a
landlord-tenant matter, who wrote Taylor to complain.
After more than two hours, the Tenant . . . and I came to an agreement. Ms.
Sun, who referred to [the Tenant] as her ‘client; then suggested that she
wanted to leave the hearing room with [the Tenant] . . . . I correctly
anticipated [that] Ms. Sun was seeking to undo the agreement. At that point,
I asked Ms. Sun if she was a lawyer, she responded yes, and volunteered
that she was not admitted to practice in D.C. I didn’t ask her if she was
admitted in any other jurisdiction. You have represented to me that she is
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not . . . . You and I both know a lawyer is not just a graduate of a law school,
but someone admitted to practice in the jurisdiction they’re practicing in
and in good standing.
Brodsky May 20, 2009 Letter, Defs.’ Ex. 6 [Dkt. # 64-6] at 1.
The legislative director of OTA raised the issue again in June 2010, sending an email to
OTA Director Johanna Shreve and copying Taylor, stating:
[I]n a conversation I had with Judge Jennifer Long about another matter, she
alluded to chronic difficulties she and other ALJs are having with Ms. Sun
in terms of appearances at hearings and mediations and the “unauthorized
practice of law.” She said Ms. Sun showed up at a hearing either this week
or last week and was turned away, but regardless Judge Long’s
understanding is that (as a matter of OTA policy or by agreement with
OAH?) Ms. Sun would always be accompanied by other OTA staff for
purposes of any OAH case. Finally, she said many judges are aware of the
work OTA does, but others only know of OTA through Ms. Sun’s
transgressions and she regrets that the agency’s image seems to suffer
accordingly. 1
Cohn June 25, 2010 Email, Defs.’ Ex. 7, [Dkt. # 64-7] at 1.
In March 2011, an OTA attorney filed a formal complaint with Shreve with respect to
actions plaintiff had taken in a particular landlord-tenant matter involving a former OTA client
who was represented by outside counsel. Gibbs Letter, Defs.’ Ex. 8, [Dkt. # 64-8] at 1. 2 In October
2010, the OTA attorney, at plaintiff’s request, drafted a tenant petition to file with the D.C.
Housing Department. Id. at 1. The landlord in turn filed a petition in landlord-tenant court for
possession of the tenant’s unit. Id. The parties reached a settlement agreement, and upon receipt
of the settlement check, the tenant’s attorney filed a motion to withdraw the tenant petition. Id.
1 OAH is the D.C. Office of Administrative Hearings.
2 The OTA attorney’s letter “is in Microsoft Word format with an auto-date feature” that is
activated whenever the document is opened. Thus, it contains an October 2014 date rather than
the creation date. Defs.’ SOF at 3, n.2. The accompanying email states that the complaint was
given to Shreve on March 2, 2011. See Gibbs Mar. 2, 2011 Email, Defs.’ Ex. 8.
4
The OTA attorney wrote that when the tenant “received notice that the [settlement] check had
deducted a per diem amount pursuant to the agreement,” the tenant “breached the agreement by
repudiating her motion to withdraw the tenant petition” and dismissed the attorney. Id. The OTA
attorney wrote:
It has now come to my attention that Ms. Sun has been speaking
with [the tenant] confidentially and providing her with legal advice contrary
to that provided by [the tenant’s counsel] and myself. Ms. Sun even went
so far as to take [the tenant] to consult with a separate attorney yesterday
morning. [The tenant] certainly has the right to consult with an attorney, as
Mr. Taylor and I recommended she do [in their meeting with the tenant
following the filing of the motion to withdraw], but Ms. Sun is an employee
and an agent of this office, and must act as such. . . . Until I am confident
that Ms. Sun will comply with my instructions I give to her and refrain from
offering independent legal advice, I cannot allow her to have contact with
any of my clients. As [her] actions have the potential to legally bind me
and I cannot with confidence say that she will following any direction I
might attempt to give her, I cannot accept any assistance from her
whatsoever.
Id. at 1–2.
The record also reveals that on March 16, 2011, Taylor communicated with Human
Resources about replacing an unnamed Case Management Specialist who “[i]n addition to her
insubordination, . . . insist[ed] on engaging in the unauthorized practice of law.” Taylor Mar. 16,
2011 Email, Defs.’ Ex. 12 [Dkt. # 64-12]. He added that “[w]e fear for Bar Counsel retributions.”
Id. And plaintiff admits that she and Taylor “had this argument about unauthorized practice of
law[.]” Sun Dep. at 98:10–11.
Plaintiff alleges that she was engaged in certain whistleblower activity. According to
plaintiff, in February 2012, she questioned another employee about Taylor’s residing in Maryland
since “it was her understanding” that “legal supervisors employed by the District of Columbia”
were required to live in the District. Am. Compl. ¶ 9. Plaintiff also alleges that she learned in
February 2012 that Shreve “was running a private [property management company] called ‘The
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Shreve Group LLC’” and, on February 17, 2012, she asked Taylor if that constituted a conflict of
interest for Shreve as head of the OTA. Am. Compl. ¶¶ 13–15. Taylor replied that Shreve’s
husband ran the company. Am. Compl. ¶ 15.
Finally, the record includes a series of statements and emails concerning the manner in
which plaintiff went about taking or requesting leave and the manner in which her superiors
addressed it. According to plaintiff, in February 2012, during a conversation with plaintiff about
a leave request, Taylor allegedly “instructed [p]laintiff to address [Shreve] as though she were a
judge [and] stated that [p]laintiff did not understand what was required in ‘American culture[.]’”
Am. Compl. ¶ 12.
Plaintiff was fired on February 21, 2012, and was issued a Summary Removal Notice on
February 24, 2012, signed by Shreve. Removal Notice, Defs.’ Ex. 13, [Dkt. # 64-13]. As grounds
for plaintiff’s termination, the removal notice sets out ten counts:
• Count One – Misfeasance and Insubordination: Copying the Executive Office of
the Mayor with Your Disrespect of Superiors.
• Count Two – Malfeasance by Unauthorized Practice of Law: Preparation of Legal
Documents.
• Count Three – Malfeasance by Unauthorized Practice of Law; Unauthorized
Drafting of Legal Documents.
• Count Four – Malfeasance by Unauthorized Practice of Law and Insubordination
by Violation of OTA Bulletin No. 2010-001: Participation in Mediation Conducted
By the Office of Administrative Hearings.
• Count Five – Malfeasance by Unauthorized Practice of Law: Provision of Legal
Advice and Preparation of Legal Documents.
• Count Six – Malfeasance by Unauthorized Practice of Law: Advising a Tenant to
Fire an OTA Attorney.
• Count Seven – Insubordination: Disobeying a Direct Order From Your Supervisor.
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• Count Eight – Misfeasance: Boasting to a Member of the Public of Your Disrespect
of a Superior.
• Count Nine – Unauthorized Practice of Law and Insubordination: Use of Degree
Designation ‘JD’ in Email Signature Block.
• Count Ten – Insubordination: Disobeying Repeated Direct Orders to Avoid
Practice of Law.
Removal Notice at 1–8. Each count is followed by at least one explanatory paragraph describing
the offending behavior.
The events on the date of plaintiff’s actual departure also form the basis for a count in the
complaint: according to plaintiff, when Shreve informed plaintiff of her termination, she
“demanded that [p]laintiff turn in her employee identification badge and cell phone, and leave the
building” or be escorted out by a security guard. Am. Compl. ¶ 16. When plaintiff asked to discuss
the matter further, Shreve “stood up and moved closely toward [p]laintiff[,] . . . raised her hand,
slammed it on the table, and yelled ‘I am done with you!” Am. Compl. ¶ 17. Plaintiff alleges that
she “felt physically afraid, and quickly left [Shreve’s] office.” She “had less than a half hour to
remove her belongings . . . and leave the building after four and a half years of service.” Am.
Compl. ¶ 18.
Plaintiff alleges that prior to her termination, she “had consistently received good job
performance review [and] compliments from the many tenants she . . . served.” Am. Compl. ¶ 19.
Plaintiff alleges further that she “was just six months away from having fully vested retirement
benefits” at the time of her termination. Am. Compl. ¶ 20.
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In the Second Amended Complaint, which was drafted by then-appointed counsel, 3
plaintiff brought seven causes of action:
(1) Wrongful Termination in Violation of Public Policy, Am. Compl. ¶¶ 26–29;
(2) Retaliation in Violation of the District of Columbia Whistleblower Protection
Act, id. ¶¶ 30–34;
(3) Discrimination in Violation of the District of Columbia Human Rights Act, id.
¶¶ 35–41;
(4) Wrongful Termination in Violation of Title VII of the Civil Rights Act of 1964, as
Amended, id. ¶¶ 42–45;
(5) Breach of Contract, id. ¶¶ 46–50;
(6) Intentional Infliction of Emotional Distress, id. ¶¶ 53–56;
(7) Assault, id. ¶¶ 57–60. 4
3 In February 2013, the Court appointed counsel to represent plaintiff. See Feb. 20, 2013
Order [Dkt. # 11]. On April 4, 2014, after counsel’s filing of two amended complaints, the Court
relieved counsel from the appointment order upon plaintiff’s consent to counsel’s motion to
withdraw “due to irreconcilable differences.” Apr. 8, 2014 Order [Dkt. # 40]. Thereafter, plaintiff
conducted the case pro se. The Court later appointed counsel for the limited purpose of
representing plaintiff during mediation proceedings before a magistrate judge. See May 21, 2014
Order [Dkt. # 44]. That appointment expired automatically at the conclusion of the mediation
referral. See July 31, 2014 Min. Order (concluding mediation).
4 On October 22, 2014, the Court denied plaintiff’s motion for leave to file yet another
amended complaint to add a disability discrimination claim since the motion came after the close
of an extended period of discovery, two amended complaints, an unsuccessful mediation, and the
start of briefing dispositive motions, and the proposed amended complaint was unlikely to survive
a motion to dismiss. See Oct. 22, 2014 Mem. Op. and Order [Dkt. # 67].
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II. LEGAL STANDARD
Summary judgment is appropriate where the pleadings, depositions, answers to
interrogatories, admissions on file and affidavits show that “there is no genuine dispute as to any
material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is “genuine” only if
a reasonable fact-finder could find for the nonmoving party; a fact is “material” only if it is capable
of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
When, as here, both parties file motions for summary judgment, “each must carry its own
burden under the applicable legal standard.” Ehrman v. United States, 429 F. Supp. 2d 61, 67
(D.D.C. 2006). “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 only for the purposes of its own motion.” Hodes v. U.S. Dep’t of
Treasury, 967 F. Supp. 2d 369, 373 (D.D.C. 2013), appeal dismissed sub nom., Hodes v. U.S.
Dep’t of the Treasury, No. 13-5348, 2014 WL 590992 (D.C. Cir. Jan. 21, 2014) (citations and
internal quotation marks omitted). In assessing each party’s motion, the Court must “view the
facts and draw reasonable inferences ‘in the light most favorable to the party opposing the
summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted),
quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
III. ANALYSIS
A. Title VII and D.C. Human Rights Act Claims
Congress enacted Title VII of the Civil Rights Act of 1964 to implement “the federal policy
of prohibiting wrongful discrimination in the Nation’s workplaces.” Univ. of Tex. Sw. Med. Ctr.
9
v. Nassar, 133 S. Ct. 2517, 2522 (2013). The antidiscrimination provision “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’” or other protected
characteristics. Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008), quoting 42 U.S.C. § 2000e–
2(a). To state a claim under Title VII’s anti-discrimination provision, the plaintiff need only
establish two elements: that “(i) [she] suffered an adverse employment action (ii) because of [her]
race, color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d
1191, 1196 (D.C. Cir. 2008), citing 42 U.S.C. § 2000e–16(a). Title VII also includes an anti-
retaliation prong that makes it unlawful for “an employer [to] ‘discriminate against’ an employee
. . . because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge,
testified, assisted, or participated in’ a Title VII proceeding or investigation.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006), quoting 42 U.S.C. § 2000e–3(a); see also Steele,
535 F.3d at 695.
Title VII claims may be proved by direct or circumstantial evidence. “Direct evidence of
discriminatory intent alone is sufficient to survive summary judgment.” Robinson v. Red Coats,
Inc., 31 F. Supp. 3d 201, 216 (D.D.C. 2014), citing Stone v. Landis Constr. Corp., 442 Fed. Appx.
568, 569 (D.C. Cir. 2011) (per curiam). Hence, a statement that itself shows bias in the adverse
decision is direct evidence that would generally entitle a plaintiff to a jury trial. Vatel v. Alliance
of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011); see Wilson v. Cox, 753 F.3d 244, 247 (D.C.
Cir. 2014) (“A statement that itself shows . . . bias in the employment decision qualifies as direct
evidence.”) (citation and internal quotation marks omitted) (ellipsis in original). “While courts
have not precisely defined what constitutes direct evidence, it is clear that at a minimum, direct
evidence does not include stray remarks in the workplace, particularly those made by nondecision-
10
makers or statements made by decisionmakers unrelated to the decisional process itself.” Hajjar-
Nejad v. George Washington Univ., 37 F. Supp. 3d 90, 125 (D.D.C. 2014) (citation and internal
quotation marks omitted). “Discrimination claims under the D.C. Human Rights Act [are
analyzed] in the same way.” Id. at 1246.
1. Direct Evidence of Discrimination
Plaintiff posits that she has come forward with direct evidence of discriminatory bias in the
decision to terminate her. But nothing she identifies rises to that standard.
Plaintiff points to a series of communications with director Shreve and supervisor Taylor
as direct evidence of national origin discrimination against her. The series of events stem from an
email plaintiff sent to Shreve and Taylor in February 2012. That email is not identified in the
record, but it forms the basis of Count One of the removal notice for misfeasance and
insubordination.
As Shreve recounted in the removal notice, plaintiff sent an email on February 11, 2012,
to Shreve and Taylor, stating “I will be taking off the week of 20 to 24.” Removal Notice at 1.
Plaintiff explained that she “had not entered anything in PeopleSoft because, ‘right now my
balance hours do not show that there are enough hours although there will be enough by the end
of the month.’” Id. at 1–2. Shreve took issue with the fact that the statement “was not posed as a
request.” Id. at 1 (Count One). Shreve “requested that Mr. Taylor meet with [plaintiff] to discuss
the situation and [her] word choices,” which he did. Id. at 2. In her deposition testimony, plaintiff
recounts her discussion with Taylor about Shreve’s response to the leave request:
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[He] said . . . why don’t you talk to [Shreve] like – as though a judge? . . . I
thought that was kind of silly, so I kind of made a joke like, “Oh, yes, the
Honorable Shreve” and . . . then he made some remark saying, ‘Well in this
country, you have to address people in a certain” – or whatever it was. And it
was addressed to me in such way as if I didn’t know anything about American
culture, like I was a foreigner.
Sun Dep. at 109:14–110:2.
As is set forth in the removal notice, Taylor discussed with plaintiff Shreve’s “inability to
approve any leave when PeopleSoft does not indicate that the hours are available, and . . . the value
of following general principals of courtesy when submitting requests, which use words such as
‘May’ and ‘Request,’ as opposed to demands, which use words such as ‘I will.’” Removal Notice
at 2. Apparently, plaintiff explained that she had “always appropriately used words such as ‘I will’
when working as an independent contractor” at a law firm and, thus, “viewed the language as
appropriate for use in the OTA office culture.” Id. Plaintiff stated in the meeting with Taylor that
she “might need to bring the Mayor into the decision process, and Mr. Taylor recommended
against such an attempt.” Id.
On February 17, 2012, plaintiff sent another email to Taylor and sent a copy to the Mayor
as well. Removal Notice at 2. Plaintiff wrote to the Director of the agency “that Mr. Taylor had
suggested that [she] ‘should most respectfully submit my petition to our esteemed chief tenant
advocate.’” Removal Notice at 2; Sun Feb. 17, 2012 Email, Defs.’ Ex. 14, [Dkt. # 64-14]. Shreve
found plaintiff’s statements in that email, including what Shreve described as “a blatant
mischaracterization” of Taylor’s statements, to be insubordinate to her and to OTA. Removal
Notice at 2. Shreve explained to plaintiff in the removal notice that by adding Mayor Gray to the
distribution list, “you were expanding the reach of your insubordination beyond the OTA and into
the Executive Office of the Mayor.” Id. at 3.
12
Plaintiff points to the count in the removal notice arising out of this series of exchanges as
evidence of the alleged national origin discrimination. She complains that Shreve’s “extraordinary
step in using a simple English grammatical construction in the future tense as a ‘count’ is direct
evidence of her racial hostility, as if Plaintiff could not understand English.” She argues that a
jury can find that the fact that defendant predicated a count on plaintiff’s use of the words ‘I will’
“is direct evidence of discrimination.” Pl.’s Opp. to Defs.’ Mot. for Summ. J. [Dkt. # 82] (Pl.’s
Opp.) at 20. But this first example does not rise to the level of direct evidence of discrimination
on Shreve’s part.
Plaintiff also points to a sentence in a lengthy email from Taylor dated February 17, 2012,
in which he addresses plaintiff’s ongoing difficulties with Shreve:
Linda,
Even though I am always concerned when people maintain leave
balances as “close to the bone” as you do, I am glad to hear the balances
have been updated.
Yes, I freely admit to discussing with you that “announcing” that
you are taking additional leave is a poor approach in American culture.
Certainly, I understand that your previous strategies for preparing for the
bar exam have not been successful, and you want to devote as much time to
preparation as possible. I am so glad that you are finding the PMBR course
helpful, just as I was glad when you found other preparation courses helpful.
However, you seem to fail to grasp the role of an agency director in
the leave process. M. Shreve has a responsibility to the District’s tenants,
citizen’s, and government to maintain a level of services, and she has a
responsibility to treat everyone in our small agency with fairness. No
rational person would conclude that each employee has an absolute right to
take off work at their sole individual discretion. While it might seem far
fetched, what if everyone in the agency decided to take next week off? As
an agency, we would just cease to exist for a week!
It is Ms. Shreve’s responsibility to balance the needs of her staff
with a need to maintain services for the people. That is a large reason why
the system is set is designed [sic] as it is. When someone voices a desire to
not work for a period of time, be it one hour or one month, the Director must
evaluate the bigger picture and determine a course of action that best
acknowledges the employee’s needs without compromising all the other
needs for which she is responsible. Once having balanced the competing
interests, she has the authority to make a decision.
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The fact that someone other than you has the authority to determine
if you can take off work, and still be paid, is why I suggested to you that
you would be better served by the phrase, “MAY I take leave,” than by the
phrase, “I AM taking leave.” The announcement, “I am taking . . .” fails to
recognize that someone else has to agree to your plan before you may put
your plan into action.
You appear to have turned my simple explanation of common
courtesy in American culture, and suggestion that in this culture you are
more likely to make a positive impression if you exhibit courtesy, into a
suggestion that you become fawningly obsequious. Nothing could be
further from the truth. Maybe I should have anticipated that you would
approach Ms. Shreve and Mayor Gray with a display of sarcasm. You did
indicate that you would write your friend, the Mayor, and he would order
Ms. Shreve to give you whatever you wanted. I told you that I did not
expect that approach to be effective, but you obviously disagree. I suppose
Mr. Gray will ultimately decide whether he thinks your style is appropriate
and effective, and if it merits his personal intervention.
You will recall that for the day you want to take off because you
have an appointment with your audiologist, I suggested that you “request,”
not “demand,” the five hours sick leave that PeopleSoft said were available,
and then “request,” not “demand,” the rest of the day off . . . .
Taylor Feb. 17, 2012 Email, Large Additional Attachments [Dkt. # 83] at 4.
According to plaintiff, she made the leave request “precisely as a matter of courtesy.” Pl.’s
Opp. at 20 (italics in original). She asserts that Taylor “further distorted” her words by rephrasing
them as “‘I am taking leave,’ instead of ‘I will be taking leave,’ intentionally projecting an animus
towards Plaintiff as a result of her simple gesture of courtesy.” Id. (emphasis in original).
Taylor’s February 17, 2012 email was certainly a little condescending, and it repeated an
unnecessary reference to plaintiff’s cultural differences. But it responded to the February 17 email
from plaintiff that was dripping with sarcasm, Sun Feb. 17, 2012 Email [Dkt. # 64-14] at 3, and it
falls short of direct evidence of discriminatory animus. More important, while plaintiff’s approach
to leave and her appeal to the Mayor seem to have caused considerable consternation, Taylor’s
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February 17 email had nothing to do with the adverse employment decision underlying this
lawsuit. 5
As further evidence of discrimination, plaintiff states that “shortly before [the foregoing]
episode,” she had asked Taylor about the possibility of working as an Attorney Advisor after she
passed the Bar to which he responded that it was not possible “because first of all there was another
attorney already barred.” Pl.’s Opp. at 20–21. Plaintiff states that the other attorney was a younger,
less qualified, African-American, id. at 21, but it is unclear if the latter statement is plaintiff’s
observation of the barred attorney or Taylor’s actual statement, and plaintiff has not cited any
document or sworn evidence to clarify this conversation. In any event, merely referring to a co-
worker of another race or ethnicity in a conversation having nothing to do with an adverse
determination is not direct evidence of unlawful discrimination in that determination. Cf. Ayissi–
Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (finding supervisor’s “young
black man statement alone” during conversation about a pay raise to be direct evidence of race
discrimination based on denial of raise).
Finally, in recounting the direct evidence of discrimination, plaintiff states that “Defendant
[via Taylor] suggested [she] should work for a female Chinese lawyer he described as a ‘bull,’
5 Indeed, plaintiff’s own exhibit indicates that as far back as March 2011, Shreve had raised
problems with plaintiff’s taking leave without prior approval. See Shreve Apr. 6, 2011 Email [Dkt.
# 83] at 2 (plaintiff’s email response to Shreve’s March 10, 2011 email instructing plaintiff that
“going forward you need to put in the absence request prior not post to the action taken otherwise
I will not approve”). In an April 6, 2011 email response to plaintiff’s disagreement with Shreve’s
decision, Shreve wrote “in addition to me clearly making the statement during a previous staff
meeting regarding this matter, I also verbally instructed you regarding the issue of approaching
me on the day to request a[n] absence. Further, you had a client appointment that apparently you
forget [sic] because the client came in after you had left for said appointment. My decision stands.”
Id.
15
presumably because Plaintiff has persevered in taking the bar exam despite repeated failures and
thereby exhibited a likewise tenacity.” Pl.’s Opp. at 21, citing generally Sun Dep. Plaintiff then
concludes: “In this juxtaposition of cultural characteristics Defendant demonstrated his
discriminatory intent, and a jury could find that he discriminated against Plaintiff despite her ability
to perform job duties.” Id. Once again, Taylor’s reference to plaintiff’s ethnicity was insensitive
and inappropriate, but it had nothing to do with her termination or performance evaluation. And
plaintiff herself drew the conclusion that Taylor was admiring her perseverance, not disparaging
her.
In order to find for plaintiff on the discrimination claims, a jury would need to draw the
inference that plaintiff’s supervisors were biased from the foregoing statements, and then tie that
bias to the decision to terminate plaintiff’s employment. Since “direct evidence of discrimination
is evidence that, if believed by the fact finder, proves the particular fact in question without any
need for inference,” Hajjar-Nejad, 37 F. Supp. 3d at 125 (emphasis in original), the proffered
statements do not constitute direct evidence of the alleged unlawful discrimination. See Macy v.
Hopkins Cnty. Bd. of Educ., 429 F. Supp. 2d 888, 898 (W.D. Ky. 2006), aff’d sub nom., Macy v.
Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357 (6th Cir. 2007) (“Evidence of discrimination is not
considered direct evidence unless a discriminatory motivation is explicitly expressed.”); see also
Forman v. Small, 271 F.3d 285, 293 (D.C. Cir. 2001), quoting Hunt v. City of Markham, 219 F.3d
649, 653 (7th Cir. 2000) (“[W]hen decision makers, or those who have input into the decision,
express [ ] discriminatory feelings [i.e., series of comments implicitly referring to age] around the
relevant time in regard to the adverse employment action complained of, ‘then it may be possible
to infer that the decision makers were influenced by those feelings in making their decisions.’”).
16
Plaintiff indicates that the alleged offending remarks occurred “closely in time” to her
termination, Pl.’s Opp. at 21, but of the four documents she identifies, only Taylor’s February 17,
2012 response to the leave request is dated close to plaintiff’s February 21, 2012 termination date.
See id. 20–21, n.32 & 33, citing emails at Large Additional Attachments [Dkt. # 83]. 6 The
remaining documents are: (1) an email from Shreve dated November 30, 2011, denying plaintiff’s
leave request and commenting that “it seems to me that you should ask for a half of day. The
current request indicates two hours and with traveling time its [sic] hard to believe that you could
return to work within an hour of the work being completed,” Shreve Nov. 30, 2011 Email [Dkt.
# 83] at 1, and (2) an email exchange between plaintiff and Shreve dated April 5–6, 2011,
disagreeing about the timing of plaintiff’s leave request and ending with Shreve’s informing
plaintiff that “going forward[,] you need to put in the absence request prior not post to the action
taken otherwise I will not approve.” Sun and Shreve Apr. 6, 2011 Emails [Dkt. # 83] at 2. And
plaintiff has not pointed to any other place in the record confirming any other alleged statements
and when they were made in a way that would tie them to the termination decision.
2. Indirect Evidence of Discrimination
In the absence of direct evidence that defendants discriminated against plaintiff due to her
Chinese ancestry, plaintiff must prove her discrimination claim through the familiar burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As
6 Plaintiff’s citations to the record are far from ideal. The Court has given her considerable
leeway as a pro se party and where possible has matched plaintiff’s cited footnotes with the
corresponding exhibit. But the Court’s duty to construe pro se filings liberally has its limits, and
it is not the Court’s job to canvass the record for documents supporting a pro se party’s position.
See October 20, 2014 Order [Dkt. # 65] (advising plaintiff about responding to a summary
judgment motion).
17
discussed below, defendants have asserted legitimate, nondiscriminatory reasons for plaintiff’s
termination. Hence, the Court is left with “one central inquiry”: whether plaintiff has “produced
evidence sufficient for a reasonable jury to find that the employer’s asserted non-discriminatory
reasons were not the actual reasons and that the employer intentionally discriminated against the
plaintiff on a prohibited basis.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C .Cir.
2008), citing Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008); see accord
Morales v. Gotbaum, 42 F. Supp. 3d 175, 188 (D.D.C. 2014) (citing cases). In assessing this
question, the Court is required to consider “all the evidence, which includes not only the prima
facie case but also the evidence the plaintiff offers to attack the employer’s proffered explanation
for its action . . . .” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009), quoting Carter v.
George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (internal quotation marks omitted).
In the removal notice, Shreve sets out ten specific reasons for plaintiff’s termination and
cites District of Columbia personnel regulations. More than half of the reasons relate to plaintiff’s
unauthorized practice of law in violation of D.C. Court of Appeals Rule 49(a), which “prohibits
engaging in the practice of law in the District of Columbia unless enrolled as an active member of
the District of Columbia Bar.” Removal Notice at 3–10 (Counts Two, Three, Four, Five, Six,
Nine). 7 Each reason describes the offending behavior and adds that “in addition to being in
violation of [D.C.] law, the unauthorized practice of law compromises the integrity of the [OTA].”
Id. Those counts alone suffice as legitimate, nondiscriminatory reasons for plaintiff’s termination,
7 Subsection (a) of Rule 49 titled Unauthorized Practice of Law reads: “No person shall
engage in the practice of law in the District of Columbia or in any manner hold out as authorized
or competent to practice law in the District of Columbia unless enrolled as an active member of
the District of Columbia Bar, except as otherwise permitted by the Rules.” D.C. Court of Appeals
Rule 49(a) (Mar. 20, 2008).
18
as do the specific incidences of insubordination, see Removal Notice at 1–8 (Counts One, Seven,
Ten), and misfeasance, id. at 7–8 (Count Eight), since all of the reasons relate to plaintiff’s job
performance and none supports an inference of a discriminatory motive.
Since defendants have proffered a legitimate explanation for plaintiff’s termination, the
burdens shifts back to the plaintiff to demonstrate why defendants are not entitled to judgment as
a matter of law. In the context of the discrimination claim, plaintiff may defeat summary judgment
by proving either that defendants’ legitimate, nondiscriminatory reasons are a pretext for
discrimination, McDonnell Douglas, 411 U.S. at 803, or that the employment action was motivated
by discrimination in addition to the proffered legitimate reasons. Nassar, 133 S. Ct. at 2522–23;
Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007); see also Ginger v. District of Columbia,
527 F.3d 1340, 1345 (D.C. Cir. 2008) (explaining the difference between a “single motive” and a
“mixed-motive” disparate treatment case). In the context of the retaliation claim, plaintiff must
establish that retaliation was the “but-for cause” of the adverse action in order to survive summary
judgment. Nassar, 133 S. Ct. at 2533. “This requires proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id.
In both contexts, plaintiff “bears the ultimate burden of proving that discriminatory [or
retaliatory] animus was the determining cause of the personnel action.” Lancaster v. Vance-Cooks,
967 F. Supp. 2d 375, 393 (D.D.C. 2013), citing Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir.
2010) (other citation omitted). Pretext may be established by showing either “that a discriminatory
reason more likely motivated the employer or . . . that the employer’s proffered explanation is
unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Even
if the employer’s explanation is shown to be false, “an employer [still] would be entitled to
judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory
19
reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether
the employer’s reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.” Colbert v. Tapella, 649 F.3d 756, 759 (D.C. Cir.
2011). Courts “may not ‘second-guess an employer’s personnel decision absent demonstrably
discriminatory motive.’” Fischbach v. District of Columbia Dep’t of Corr., 86 F.3d 1180, 1183
(D.C. Cir. 1996), quoting Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982).
The Court finds that plaintiff has not carried her burden of persuasion. Plaintiff first
disputes defendants’ allegation that she engaged in the unauthorized practice of law. She states
that she was simply a participant in mediation proceedings and that Rule 49 does not cover
mediation. Pl.’s Reply [Dkt. # 88] at 18. But plaintiff does not cite a provision of the rule for that
proposition, and the exceptions set out at subsection (c) of Rule 49 do not support her
interpretation. Indeed, subsection (c)(12), captioned “Practice in ADR Proceedings” specifies that
attorneys must be licensed in order to represent individuals in “legal services in or reasonably
related to a pending or potential arbitration, mediation, or other alternative dispute resolution . . .
proceeding.”
Defendants explain that Rule 49 permits unlicensed individuals to serve as impartial
mediators, but that it bars plaintiff’s role as an advisor to OTA clients. See Defs.’ Opp. to Pl.’s
Summ. J. Mot. [Dkt. # 81] (“Defs.’ Opp.”) at 10–11. The Court agrees. The Commentary to Rule
49(b)(2) states that the rule “is not intended to cover the provision of mediation or alternative
dispute resolution (ADR) services” because such services “are not given in circumstances where
there is a client relationship of trust or reliance; and it is common practice for providers of ADR
services explicitly to advise participants that they are not providing the services of legal counsel.”
20
D.C. Court of Appeals Rule 49, cmt. § 49(b)(2). So plaintiff has not shown the proffered
nondiscriminatory reason to be false. 8
Moreover, even if defendants were wrong in their application of the rule, that would not
defeat summary judgment because plaintiff has provided no probative evidence of a discriminatory
motive.
According to plaintiff, the “discrimination” began “when Mark Raddatz, a Caucasian, self-
appointed landlord attorney . . . , complained to Defendant about Plaintiff’s ‘unauthorized practice
of law’ when Plaintiff helped [Carmen] Salazar,” a native of Ecuador whom plaintiff claims had
limited English skills, “complete a tenant petition.” Pl.’s Reply at 18. Plaintiff contends that
defendants “misunderstood what mediation at OAH entailed, or, if they did, they deliberately
ignored it.” Id. In any event, according to plaintiff, Taylor instructed her to tell Ms. Salazar that
Ms. Kosak would be representing her instead. Plaintiff notes that there was no written
representation, and that “she could not impose herself on Ms. Salazar without her consent.” Id.
8 Moreover, there is considerable evidence in the record that demonstrates that plaintiff was
repeatedly cautioned about the issue, and that the concerns were not simply raised in the mediation
context. See, e.g., Taylor Email [Dkt. # 64-9] at 1 (Taylor’s admonition to plaintiff regarding
misleading statements in the email to attorney Parag Khandhar that could have reasonably inferred
that plaintiff was a lawyer); Cohn Jun. 25, 2010 Email [Dkt. # 64-7] (OTA Legislator Director’s
email to Shreve about the concerns conveyed to him by Judge Long that she and other
administrative law judges had about plaintiff’s appearances at hearings and mediation and the
“unauthorized practice of law”). The evidence also reflects plaintiff’s unwillingness to respond to
the concerns in any meaningful way. See Sun Feb. 12, 2009 Email [Dkt. # 64-9] at 2 (plaintiff’s
retort to Taylor’s misleading statement email, all but stating that Taylor was jumping to
conclusions without knowing the facts); Sun Sept. 5, 2009 Email [Dkt. # 64-10] (plaintiff’s
September 5, 2009 email to Taylor, stating “[w]e need to find out what constitutes unauthorized
practice in our particular are[a] of work, as I know the other advocates also regularly help write
tenant petitions . . . . You had mentioned on a previous occasion that unauthorized practice of law
would prohibit me from getting a license. While I appreciate your concern, I do not think it is
relevant to our discussion at this point (maybe after I pass the bar).”).
21
Plaintiff reports that when Taylor “insisted, Plaintiff said to him, ‘Don’t try to control me,’ to
which Defendant replied in a display of animus, ‘Oh, yes, I will.’ Plaintiff then asked Defendant
to stop discrimination.” Pl.’s Reply at 19. Plaintiff argues that defendants’ “improper acts . . .
showed ‘unauthorized practice of law’ was not the real reason why” she was not permitted to assist
Ms. Salazar, but rather [ ] was pretext for discrimination.” 9 Id.
Plaintiff’s argument is illogical and unsupported by the evidence in the record. In any
event, plaintiff does not dispute the conduct underlying her termination but rather questions
defendants’ interpretation of that conduct as constituting the unauthorized practice of law. See
generally Pl.’s Opp. at 43–45 (Summ. of Material Facts in Genuine Dispute); Pl.’s Mot. for Summ.
J. (Stmt. of Material Facts Not in Reasonable Dispute) at 9–12; Pl.’s Mot. for Summ. J. (Pl.’s
Supporting Mem.) at 4–5 (Table of Contents listing argument against allegation of unauthorized
practice of law). But that question is relevant only if a reasonable jury could find no support for
the counts of the removal notice and a prohibited discriminatory purpose. Rule 49’s definition of
“Practice of Law” encompasses preparing “any claims, demands or pleadings of any kind, or any
written documents . . . for filing in any court, administrative agency or other tribunal” and
“[p]roviding advice or counsel as to how [such] activities . . . might be done, or whether they were
done, in accordance with applicable law.” D.C. Court of Appeals Rule 49(b)(2)(D)–(E). Counts
Two through Six of the removal notice certainly fall within that definition. Moreover, plaintiff
does not refute the conduct underlying the insubordination counts, which also provide legitimate,
nondiscriminatory reasons for plaintiff’s termination.
9 Plaintiff also argues that defendants’ “intentional discrimination extended to the foreign-
born tenants [she] served,” Pl.’s Reply at 19–20, but she does not have legal standing to assert the
tenants’ claims and, as a lay person, she cannot represent them in federal court.
22
Even if plaintiff felt offended by Taylor’s remarks or disagreed with his supervision, Title
VII does not create or require federal courts to enforce “a general civility code for the American
workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68, quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Hence, the mere fact that plaintiff and
Taylor clashed does not supply the evidence from which a reasonable jury can find or infer
unlawful discrimination. See, e.g., Bonnette v. Shinseki, 907 F. Supp. 2d 54, 70 (D.D.C. 2012)
(despite complaint detailing “a series of annoying and embarrassing workplace grievances[,] . . .
the law is clear that ‘purely subjective injuries,’ such as dissatisfaction with a reassignment, public
humiliation, or loss of reputation, are not adverse actions[.]”).
In fact, plaintiff admitted in her deposition testimony that she “[p]ersonally” did not “think”
that Taylor had “any prejudices one way or the other” but was instead “very pompous” and
controlling, which “created a very antagonistic attitude.” Sun Dep. at 115:9–14, 116:1–3. And
she acknowledged that she thought she was fired because Taylor did not like her and perceived
her as undermining him and incapable of being controlled. Sun Dep. at 105:7–20. In addition,
plaintiff could not identify “any overt act of discrimination” on Shreve’s part and, when pressed,
she surmised that Shreve “is much too smart to do that . . . She made sure with Mr. Taylor – and I
have an e-mail . . . by Mr. Taylor – that they wanted to make sure that whatever termination action
they took would not be challenged.” Sun Dep. at 155:11–156:21.
In keeping with the McDonnell Douglas framework, the Court finds that plaintiff has failed
to produce probative evidence to rebut defendants’ legitimate nondiscriminatory reasons for her
termination. Consequently, the Court will grant summary judgment to defendants on the Title VII
claim (Count IV) and the D.C. Human Rights Act claim (Count III).
23
B. Other State Law Claims
Since the remaining claims of wrongful termination, retaliation under the D.C.
Whistleblower Protection Act (“DCWPA”), breach of contract, intentional infliction of emotional
distress, and assault “are so related [to the Title VII claim] that they form part of the same . . .
controversy,” the Court will exercise supplemental jurisdiction over those claims. 28 U.S.C.
§ 1367(a). The Court will address the statutory claim and then the common law claims.
1. D.C. Whistleblower Protection Act
In Count II, plaintiff claims “Retaliation in Violation of the District of Columbia
Whistleblower Protection Act.” Am. Compl. ¶¶ 30–34. To survive summary judgment on a
DCWPA claim, plaintiff must supply probative evidence that (1) she made a protected disclosure,
(2) the disclosure resulted in a prohibited personnel action, and (3) the disclosure was a
contributing factor to the prohibited personnel action. Bowyer v. District of Columbia, 793 F.3d
49, 52 (D.C. Cir. 2015). A protected disclosure “includes ‘any disclosure of information . . . that
the employee reasonably believes evidences . . . gross mismanagement . . . or a violation of a
federal, state, or local law.’” Id., quoting D.C. Code § 1-615.52(a)(6) (internal brackets omitted;
ellipses in original).
Plaintiff alleged that she questioned another employee about Taylor’s residing in Maryland
since “it was her understanding” that “legal supervisors employed by the District of Columbia”
were required to live in the District. Am. Compl. ¶ 9. Plaintiff also alleged that she learned in
February 2012 that Shreve “was running a private [property management company] called ‘The
Shreve Group LLC’” and, on February 17, 2012, she asked Taylor if that constituted a conflict of
interest for Shreve as head of the OTA. Am. Compl. ¶¶ 13–15. Taylor replied that Shreve’s
husband ran the company. Am. Compl. ¶ 15. In her summary judgment motion, plaintiff addresses
24
only the latter claim and argues that she was fired just four days after questioning Taylor about
Shreve’s potential conflict of interest. 10 Pl.’s Mot. for Summ. J. (Pl.’s Supporting Mem.) at 21.
Plaintiff concludes that “[t]he close proximity between Plaintiff’s financial conflicts-of-interest
remarks and termination is direct evidence of retaliation.” Id.
But, as with the discrimination claim, plaintiff has not pointed to any statements that would
constitute direct evidence of a retaliatory motive for her termination. Defendants contend that
plaintiff did not believe she was making a protected disclosure when she questioned Taylor about
the Shreve Group. Defs.’ SOF ¶ 17. Indeed, in her deposition testimony, plaintiff stated that she
did not “think that there was anything wrong with it. I just wanted to know whether that was a
conflict of interest. And . . . even if it was a conflict of interest, maybe she was able to do it or she
had arrangements to do it. I had no idea.” Sun Dep. at 174:7–12.
In any event, the “DCWPA adopts a burden-shifting scheme that in some ways parallels
federal Title VII jurisprudence,” Bowyer v. District of Columbia, 793 F.3d at 52, and the Court has
already determined with regard to the Title VII claim that plaintiff has “failed to point to any
evidence countering [defendant’s] legitimate, independent reason[s] for [her] termination.” Id.
at 51. Hence, the Court finds that defendants are entitled to summary judgment on the
whistleblower claim as well. See id. at 52, citing Johnson v. District of Columbia, 935 A.2d 1113,
1118 (D.C. 2007) (“If the defendant shows at summary judgment that there is no genuine issue of
disputed fact as to its asserted legitimate, independent reason, the plaintiff . . . must come forward
with credible [admissible] evidence [that a jury might credit] showing that the legitimate,
10 Plaintiff does not dispute, and thus concedes, that only Shreve, as Chief Tenant Advocate,
was subject to the District’s residency requirements. Defs.’ SOF ¶ 19.
25
independent reason the defendant offered was pretext for an actual, discriminatory motive or did
not actually motivate the challenged personnel action.”).
2. Wrongful Termination
In Count I, plaintiff claims “Wrongful Termination in Violation of Public Policy.” Am.
Compl. ¶¶ 26–29. Generally, as an at-will employee, Defs.’ Ex. 2, plaintiff could have been fired
“at any time and for any reason, or for no reason at all.” Adams v. George W. Cochran & Co.,
Inc., 597 A.2d 28, 30 (D.C. 1991). The D.C. Court of Appeals has carved out “a very narrow
[public policy] exception to the at-will doctrine under which a discharged at-will employee may
sue . . . her former employer for wrongful discharge when the sole reason for the discharge is the
employee’s refusal to violate the law, as expressed in a statute or municipal regulation.” Id. at 34.
In a subsequent plurality opinion, the D.C. Court of Appeals recognized that “Adams does not
foreclose any additional ‘public policy’ exceptions,” but three judges agreed that any exceptions
should remain narrow. See Carl v. Children’s Hosp., 702 A.2d 159 (D.C. 1997) (Terry, J.,
concurring) (“[L]est we allow ‘public policy’ exceptions to swallow up the at-will doctrine, I
would also hold that the recognition of any such exception must be firmly anchored either in the
Constitution or in a statute or regulation which clearly reflects the particular ‘public policy’ being
relied upon.”). “[C]ourts have treated Judge Terry’s concurring opinion as the relevant standard.”
Myers v. Alutiiq Int’l Solutions, LLC, 811 F. Supp. 2d 261, 266, n.3 (D.D.C. 2011), quoting Vreven
v. American Ass’n of Retired Persons, 604 F. Supp. 2d 9, 14, n.5 (D.D.C. 2009).
The D.C. Court of Appeals has also questioned whether the “very narrow” public policy
exception can be invoked “where the very statute the relied-upon public policy already contains a
specific and significant remedy for the party aggrieved by its violation.” Nolting v. Nat’l Capital
Grp., Inc., 621 A.2d 1387, 1390 (D.C. 1993). Since Title VII, the D.C. Human Rights Act, and
26
the DCWPA each contains a remedial scheme to address the very public policy issues plaintiff
seeks to redress, the Court finds the public policy exception “inapplicable.” Mattiaccio v. DHA
Grp., Inc., 293 F.R.D. 229, 233 (D.D.C. 2013). See Rosella v. Long Rap, Inc., 2015 WL 4604295,
at *4 (D.C. July 30, 2015) (identifying Title VII, the D.C. Human Rights Act, and the DCWPA as
examples where “the legislature has seen fit to simultaneously create statutory exceptions to the
employment-at-will rule by recognizing an employee’s right to challenge wrongful discharges
based on specific protections of public policy”).
Accordingly, plaintiff’s wrongful termination claim falls along with her statutory claims
since plaintiff has not identified any other public policy that defendants are supposed to have
violated.
3. Breach of Contract
In Count V, plaintiff alleges that the District “intentionally breached its contractual
commitments to [her] by terminating her employment without cause,” Am. Compl. ¶ 50, and she
invokes 42 U.S.C. § 1981. Am. Compl. ¶¶ 46–52. Section 1981 of the Civil Rights Act protects
“the equal right of [a]ll persons within the jurisdiction of the United States to make and enforce
contracts without respect to race.” Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014),
quoting Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (internal quotation marks
omitted). It encompasses employment claims. See Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576
(D.C. Cir. 2013).
Defendants argue that D.C. employees are not hired pursuant to a contract, and therefore,
they cannot sue under section 1981. See Defs.’ Mot. for Summ. J., Defs.’ Mem. of P. & A. in
Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) at 30. But that argument “is one frequently
raised by the District, but as often as it has been raised, it has been rejected.” Bowyer v. District
27
of Columbia, 910 F. Supp. 2d 173, 208 (D.D.C. 2012), aff’d, 793 F.3d 49 (D.C. Cir. 2015), quoting
Graves v. District of Columbia, 777 F. Supp. 2d 109, 120 (D.D.C. 2011) (other citations omitted).
This is in part because “the D.C. Circuit has held that ‘members of the District of Columbia Fire
Department are the counterparts of employees of state and local governmental units . . . . , and they
retain an independent right of action under section 1981.’” Id., quoting Torre v. Barry, 661 F.2d
1371, 1374–75 (D.C. Cir. 1981). But see Olatunji v. District of Columbia, 958 F. Supp. 2d 27, 34
(D.D.C. 2013) (holding “that plaintiff cannot maintain an independent cause of action under §
1981 against the District of Columbia”); Sledge v. District of Columbia, 869 F. Supp. 2d 140, 145
(D.D.C. 2012) (concluding same).
Defendants also argue that plaintiff was hired as a career service employee pursuant to
statute and, thus, did not enter into a contract that could be breached. See Defs.’ Mem. at 27–30;
Am. Compl., Ex. 1 (letter appointing plaintiff “in the Career Service”). But a career service
employee does have rights under the D.C. Comprehensive Merit Personnel Act (“CMPA”) that an
at-will employee does not. See Fonville v. District of Columbia, 448 F. Supp. 2d 21, 27 (D.D.C.
2006) (“At issue in this case is whether plaintiff’s status changed from a Career Service employee
to an ‘at-will’ employee when he was promoted to the Commander position.”); see also Ekwem v.
Fenty, 666 F. Supp. 2d 71, 78 (D.D.C. 2009), citing Fonville, 448 F. Supp. 2d at 26–27 (unlike
career service employees, “Management Supervisory Service members are specifically excluded
from the Career Service,” and thus are not protected by the CMPA, which “creates a property
interest for members of the Career Service”). Plaintiff touches on that distinction in her reply, see
Reply at 18, and she raises the question of whether the CMPA creates an implied contract for
career service appointees. See Myers, 811 F. Supp. 2d at 270, quoting Austin v. Howard Univ.,
267 F. Supp. 2d 22, 25 (D.D.C. 2003) (“The at-will employment presumption may be rebutted by
28
evidence that the parties intended the employment to be for a fixed period, or subject to specific
preconditions before termination.”) (other citation and internal quotation marks omitted)
(emphasis supplied). The Court cannot resolve that question on the current record, but whether or
not plaintiff had contractual rights in her position, her claim fails because she has not produced
evidence from which a jury could conclude that she was terminated without cause.
“To evaluate a section 1981 claim, courts use the three-step McDonnell Douglass
framework for establishing racial discrimination under Title VII,” Brown v. Sessoms, 774 F.3d at
1022 (internal quotation marks omitted), and this Court has already determined that no reasonable
jury presented with defendants’ legitimate, nondiscriminatory reasons for the termination could
find for plaintiff on the discrimination claim. It follows, then, that no reasonable jury could agree
with the premise underlying the contract claim that the termination was without any cause.
Consequently, the Court finds that defendants are entitled to judgment as a matter of law on the
breach of contract claim.
4. Intentional Infliction of Emotional Distress (“IIED”)
In Count VI, plaintiff alleges that defendants “were aware that its [sic] actions were in
violation of the law, and as a result, they were either intentionally or recklessly caused.” Am.
Compl. ¶ 54. “In order to succeed on a claim of intentional infliction of emotional distress, a
plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which
(2) intentionally or recklessly (3) cause[d] the plaintiff severe emotional distress.” Duncan v.
Children’s Nat’l Med. Ctr., 702 A.2d 207, 211 (D.C. 1997), quoting Drejza v. Vaccaro, 650 A.2d
1308, 1312 (D.C. 1994). The D.C. Court of Appeals has set “a very high bar for satisfying the
requisite level of outrageousness,” Greene v. Shegan, 2015 WL 5011419, at *3 (D.D.C. Aug. 24,
2015), which goes well beyond “mere insults, indignities, or annoyances,” id., quoting
29
Restatement (Second) of Torts § 46, cmt. d (1965). And “[i]n the employment context, [the D.C.
Court of Appeals has] traditionally [] been demanding in the proof required to support an [IIED]
claim.” Joyner v. Sibley Mem’l Hosp., 826 A.2d 362, 373 (D.C. 2003), quoting Kerrigan v.
Britches of Georgetowne, 705 A.2d 624, 628 (D.C. 1997).
Defendants argue that this claim fails “because the circumstances surrounding Plaintiff’s
discharge were not extreme and outrageous.” Defs.’ Opp. at 15. The Court agrees that plaintiff’s
conclusory allegations in the amended complaint do not rise to the requisite level of
outrageousness to state an IIED claim. In addition, plaintiff has adduced no evidence to support
this claim following an extensive period of discovery. Consequently, the Court finds that
defendants are entitled to judgment as a matter of law on the IIED claim. See Celotex Corp., 477
U.S. at 322 (“after adequate time for discovery and upon motion,” summary judgment is warranted
against “a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial”).
5. Assault
In Count VII, plaintiff alleges that Shreve “assaulted and/or threatened [p]laintiff in a
menacing manner during her termination . . . and caused [p]laintiff to fear for her safety.” Am.
Compl. ¶ 59. “Under District of Columbia law, an assault is ‘an intentional and unlawful attempt
or threat, either by words or acts, to do physical harm to the victim.’” Collier v. District of
Columbia, 46 F. Supp. 3d 6, 14 (D.D.C. 2014), quoting Etheredge v. District of Columbia,
635 A.2d 908, 916 (D.C. 1993). To succeed on the assault count, plaintiff must present probative
evidence that she “suffered apprehension of harmful or offensive contact and that a reasonable
person in [her] position would have experienced such apprehension.” Id., citing Rogers v. Loews
L’Enfant Plaza Hotel, 526 F. Supp. 523, 529 (D.D.C. 1981).
30
Defendants do not refute plaintiff’s deposition testimony that during the termination
meeting, Shreve “got up . . . raised her hand, put her face within a few inches of me, yelled and
slammed her hand on the table . . . .” Sun Dep. 161. Nor have defendants proffered any contrary
version of the encounter. While this may be a thin reed upon which to predicate a claim of assault,
the question of whether plaintiff reasonably feared for her personal safety during the undisputed
encounter is a question for a jury, not this Court. So neither party is entitled to summary judgment
on that claim.
CONCLUSION
For the foregoing reasons, the Court concludes that defendants are entitled to summary
judgment on Counts I through VI of plaintiff’s Second Amended Complaint, but not on Count VII,
which is not resolvable on summary judgment. Accordingly, defendants’ motion is granted in part
and denied in part, and plaintiff’s motion for summary judgment is denied. A separate Order
accompanies this Memorandum Opinion.
AMY BERMAN JACKSON
United States District Judge
Date: September 30, 2015
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