Holassie v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RONALD HOLASSIE, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-2053 (TSC)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
AMENDED MEMORANDUM OPINION 1
Plaintiff Ronald Holassie, a former lifeguard with the District of Columbia Department of
Parks and Recreation (“DPR”), has sued the District of Columbia, alleging that it discriminated
against him, retaliated against him and created a hostile work environment in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the
D.C. Human Rights Act, as amended, D.C. Code §§ 2–1401.01 et seq. (“DCHRA”) (Count I),
and retaliated against him in violation of the D.C. Whistleblower Protection Act (“WPA”), D.C.
Code §§ 1–615.51 et seq. (Count II). Holassie also brings an invasion of privacy claim. (Count
III).
DPR moves, pursuant to Federal Rule of Civil Procedure 56, for summary judgment.
ECF No. 42. For the reasons set forth below, the court will GRANT the motion, in part, and
DENY the motion, in part. 2
1
This Amended Memorandum Opinion replaces the court’s October 15, 2019, opinion. See
ECF No. 57. An accompanying Order will replace the October 15, 2019 Amended Order. See
ECF No. 58.
2
Holassie opposes summary judgment only as to his Title VII, DCHRA, and WPA claims; he
does not address the District’s motion as to his invasion of privacy claim. Therefore, the court
treats the District’s argument as to the invasion of privacy claim as conceded. See Hopkins v.
1
I. BACKGROUND
In May 2006, Carmen Jean-Baptiste, Holassie’s mother, began working as a lifeguard at
DPR’s Takoma Aquatic Center. Byrd v. Dist. of Columbia, 807 F. Supp. 2d 37, 52 (D.D.C.
2011). In 2007, Jean-Baptiste sued the District of Columbia, claiming that, during her
employment, she experienced sexual harassment, a hostile work environment, and was
wrongfully and retaliatorily terminated. Jean-Baptiste v. Dist. of Columbia, 11-cv-1587-RCL,
ECF No. 51. In 2012, a jury awarded Jean-Baptiste $3.5 million and returned an addendum
recommending that DPR “begin an EEO training program for all DPR managers,” revise its
policies regarding the handling of complaints, and conduct an internal audit of compliance with
DPR policies. Id., ECF No. 185. Jean-Baptiste ultimately settled her lawsuit, and the case was
dismissed in January 2014. Id., ECF Nos. 254–55.
A. Holassie’s Employment with DPR
In 2012, two years before the settlement in his mother’s case, Holassie began working for
DPR as a summer lifeguard at Wilson Aquatic Center. ECF No. 44, Pls. Ex. M, Resp. to
Interrog. No. 5. He then worked at Takoma Aquatic Center as a summer lifeguard in 2013 and
2014. Id. According to Holassie, between 2012 and 2014 (the year his mother settled her
lawsuit), he had no “significant” negative interactions with supervisors or co-workers, negative
performance reviews, or mediation meetings with management. Id.Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C.
Cir. 1997)); see also Hajjar–Nejad v. George Washington Univ., 37 F. Supp. 3d 90, 128 (D.D.C.
2014) (“[A] Plaintiff is not entitled to rely on the allegations in h[er] Complaint to create a
genuine issue of material fact at the summary judgment stage.”) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)).
2
Holassie alleges that in the summer of 2015, in retaliation for his mother’s lawsuit, DPR
began discriminating against him and creating a hostile work environment. ECF No. 19, Am.
Compl. ¶ 13; Pls. Resp. to Defs. SOF ¶¶ 1–3; Pls. Ex. M, Pls. Resp. to Interrog. No. 5. Holassie
claims that DPR subjected him to “numerous hostile meetings,” supervisors yelled at him, and
supervisors and co-workers harassed him. Pls. Ex. L, Pls. Resp. to Interrog. No. 4 at 4–5; Am.
Compl. ¶ 30. He further alleges that:
• On June 9, 2015, he was selected for three lifeguard skills performance audits. Pls. Ex.
L, Pls. Resp. to Interrog. No. 4 at 5; Am. Compl. ¶¶ 15, 18. He contends that he was not
allowed to rest or eat the day of the audits, and was videotaped without his consent. Pls.
Ex. L, Pls. Resp. to Interrog. No. 4 at 5; Am. Compl. ¶¶ 15, 18. It is undisputed,
however, that all lifeguards were subjected to random performance audits by a third-party
vendor and that a videotape of one of Holassie’s audits was viewed only by the auditor
and DPR’s aquatic leadership team. Pls. Resp. to Defs. SOF ¶¶ 14–15, 21. Holassie does
not explain what, if any, impact the audit had on his job.
• Although he disputes the cause of the incident, on July 10, 2015, Holassie, his brother,
and another lifeguard were involved in a “physical skirmish,” during which Holassie
tipped over a trash can and used profanity. Id. ¶¶ 5–6. On July 14, 2015, Holassie’s
supervisor, Robert Allen, met with Holassie to discuss the incident. Id. ¶ 7. Holassie
alleges that the incident was precipitated by an employee bullying his brother. Id. ¶ 6.
• On July 21, 2015, Holassie’s supervisor met with Holassie after he left his assigned zone
to secure his whistle. Id. ¶¶ 8–9. The parties dispute whether Holassie secured coverage
before leaving his post. Id. ¶¶ 9–10.
• On August 3, 2015, DPR held a meeting regarding Holassie’s alleged failure to adhere to
the employment schedule several days earlier. Id. ¶¶ 11–12. Holassie maintains that he
was on time for his assigned shift. Id. At the meeting, Holassie informed DPR that he
felt targeted by other employees. Pls. Ex. M, Pls. Resp. to Interrog. No. 5 at 9.
Holassie’s supervisor Allen subsequently emailed Tyrell Lashley, 3 DPR’s Director of
Aquatics, stating: “Ronald Holassie has expressed to me that he feels as if he has been
targeted by other employees and is being harassed. What would be the official DPR
procedure [sic] course of action to take?” Pls. Ex. E.
• On August 4, 2015, Morris responded that he planned to meet with Holassie later that
day, and Allen memorialized the substance of Holassie’s complaints in an email to
3
Lashley has since married and changed his last name to Morris. Id. Going forward, the court
will refer to Lashley as Morris.
3
Morris and DPR’s Aquatic Operations Manager. Pls. Ex. E. Holassie disputes the
accuracy of the email. Pls. Resp. to Defs. SOF ¶¶ 4–6. At some point that day, Holassie
rescheduled the meeting to the following day because he was not feeling well due to the
alleged “harassment” and “hostility” he was experiencing. Pls. Ex. M, Pls. Resp. to
Interrog. No. 5 at 10.
• The following morning, August 5, 2015, Holassie filed an EEOC complaint against DPR
and later that afternoon met with Morris and other DPR management employees. Id.
According to Holassie, he explained during the meeting that he had been “taunted and
treated with unwarranted hostility by his supervisors and staff.” Id. Morris then read
Allen’s email listing Holassie’s alleged incidents and complaints and stated that, effective
immediately, Holassie would be transferred to the Rumsey Aquatic Center. Id. at 10–11.
Holassie alleges that the transfer was retaliatory, but he agreed to the transfer because he
wanted to continue working for DPR. Id.
B. Holassie’s 2015 Alleged Unlawful Termination
More than one week later, on August 17, 2015, Holassie learned that his last day at DPR
would be August 23, 2015. Pls. Ex. N, Pls. Resp. to Interrog. No. 6 at 15. He e-mailed Morris to
confirm, and Morris responded: “It is my understanding that this is the date you provided to staff
as you were leaving to go back to school.” Pls. Ex. H. Holassie contends that DPR prematurely
terminated his employment.
C. Holassie’s 2016 Application for Employment
On April 24, 2016, Holassie applied to work as a summer 2016 DPR lifeguard. Pls. Ex.
K. He did not receive an offer and never returned to work for DPR.
II. LEGAL STANDARD
Summary judgment is appropriate where there is no disputed genuine issue of material
fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). A dispute is “genuine” only “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” only if it could affect the outcome of
the litigation. Id. In determining whether a genuine issue of material fact exists, the court must
4
view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). At the summary judgment stage,
“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255.
The moving party 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 . . . which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323
(cleaned up); see also Fed. R. Civ. P. 56(c). The non-moving party’s opposition, however, must
consist of more than mere unsupported allegations or denials, and must be supported by
affidavits, declarations, or other competent evidence, setting forth specific facts showing that
there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. “If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
III. ANALYSIS
A. Title VII and DCHRA Retaliation Claims 4
4
In his Amended Complaint, Holassie alleges that he was “discriminated and retaliated against
and forced to work in a hostile work environment.” Am. Compl. ¶ 32 (emphasis added).
Likewise, in his response to DPR’s Motion for Summary Judgment, Holassie alleges
discrimination and retaliation. Pls. Resp. at 12. Any independent disparate treatment
discrimination claims are not actionable, however, because Holassie did not exhaust his
administrative remedies. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citation
omitted) (“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are
‘like or reasonably related to the allegations of the charge and growing out of such
allegations.’”). Holassie “checked the box” for “retaliation” on his EEOC charge form. ECF
No. 19-2, Ex. 2. He did not check any other boxes on the form. Moreover, he explained in the
EEOC charge that “[e]ver since” his mother’s case was settled and publicized, he began to
experience alleged retaliation. Id. Accordingly, the court will dismiss any independent disparate
treatment discrimination claims with prejudice.
5
“Title VII of the Civil Rights Act makes it unlawful for an employer to ‘fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.’” Brady v. Off. of Sergeant at Arms, 520
F.3d 490, 493 (D.C. Cir. 2008) (quoting 42 U.S.C. § 2000e–2(a)(1)). The statute also prohibits
employers from retaliating against an individual who “opposed any practice” made unlawful by
Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or
investigation. 42 U.S.C. § 2000e–3(a). Retaliation based on a family member’s opposition to a
discriminatory practice is actionable. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 170
(2011).
The DCHRA likewise prohibits discriminatory and retaliatory practices by employers.
D.C. Code § 2-1402.61. “DCHRA and Title VII employment discrimination actions are
evaluated under the same legal standard.” Byrd, 807 F. Supp. 2d at 58.
“Where a plaintiff attempts to prove unlawful retaliation in violation of Title VII using
circumstantial evidence of motive, the burden-shifting framework of McDonnell Douglas
ordinarily applies.” Burton v. Donovan, 210 F. Supp. 3d 203, 212 (D.D.C. 2016) (citations
omitted). To establish a prima facie case of retaliation, a plaintiff must present evidence that (1)
they engaged in activity protected by Title VII, (2) the employer took an adverse employment
Likewise, Holassie failed to exhaust his administrative remedies on his hostile work
environment claims. “A Title VII lawsuit following the EEOC charge is limited in scope to
claims that are ‘like or reasonably related to the allegations of the charge and growing out of
such allegations.’ At a minimum, the Title VII claims must arise from ‘the administrative
investigation that can reasonably be expected to follow the charge of discrimination.’” Park, 71
F.3d at 907 (citations omitted). Nothing in Holassie’s EEOC charge indicates that he intended to
bring a hostile work environment claim, nor could such a claim have reasonably arisen from the
administrative investigation.
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action against them, and (3) the adverse action was causally related to the exercise of their rights.
Holcomb v. Powell, 433 F.3d 889, 901–02 (D.C. Cir. 2006).
If a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate
a legitimate, nondiscriminatory reason for its actions. Id. at 901 (citation omitted). If the
employer proffers such a reason, the burden reverts to the plaintiff to prove that the legitimate
reason provided by the employer was in fact pretext for discrimination. Id. This burden is one
of production, not persuasion: it “can involve no credibility assessment.” St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 509 (1993). Instead, the court “must resolve one central question: Has
the employee produced sufficient evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color, religion, sex, or national origin?”
Brady, 520 F.3d at 494.
1. Incidents During Holassie’s Employment
Holassie has not established a causal connection between his mother’s protected activity
and the events that occurred prior to his 2015 termination. Holassie’s mother won her jury trial
in 2012 and settled her lawsuit with DPR in January 2014. Jean-Baptiste, 11-cv-1587-RCL,
ECF Nos. 254–55. The following summer, less than six months after the settlement, Holassie
worked for DPR, without incident. Pls. Ex. M, Resp. to Interrog. No. 5 at 7–8. It was not until
one year later, in the summer of 2015, that DPR employees allegedly began to retaliate against
him. Id. at 8.
Attempting to establish causation, Holassie states that “[d]uring the summer of 2015, []
news that [his mother] won a sexual harassment lawsuit against Defendant was publicized.” Pls.
Resp. at 1. But his supporting exhibits contain copies of two articles published in August 2012,
Pls. Exs. A, C, and one undated article that also appears to have been published in 2012, at the
7
time of the jury award. Pls. Ex. B (“Carmen Jean-Baptists is relieved the six-year battle is over.
Today, a federal jury awarded her $3.5 million in a sexual harassment lawsuit.”); see Jean-
Baptiste, 11-cv-1587-RCL, ECF No. 185. Thus, Holassie has not established proximity between
his mother’s protected activity and the incidents that occurred during his employment.
While a large gap between protected activity and retaliation is not necessarily fatal to a
retaliation claim, Holassie must point to other factors leading to an inference of causation. See
Greer v. Bd. of Trs. of Univ. of D.C., 113 F. Supp. 3d 297, 311 (D.D.C. 2015) (citing Buggs v.
Powell, 293 F. Supp. 2d 135, 149 (D.D.C. 2003)). He has not done so and therefore the court
will grant summary judgment to DPR on all claims associated with conduct that occurred before
his alleged unlawful termination in August 2015.
2. DPR’s Alleged Unlawful Termination of Holassie in 2015
Holassie engaged in protected activity, by filing an EEOC charge, a few days before his
allegedly unlawful termination on August 23, 2015. Despite the proximity between his protected
activity and his termination, Holassie’s termination claim fails because DPR proffered a
legitimate non-discriminatory reason for the termination, and Holassie has not proffered
evidence of pretext. It is undisputed that in December 2014, when DPR hired Holassie for the
2015 summer season, he completed a personnel form on which he was asked whether he needed
to “end [his] employment before Labor Day Weekend (September 7th),” to which he responded
yes and requested a “mid-August” end date. Defs. Ex. G. Similarly, Holassie’s May 29, 2015
personnel action form states that his appointment was “not to exceed 8/29/2015.” Defs. Ex. F.
Despite these unambiguous records, Holassie contends that his employment was
scheduled to extend past August. He asserts that “there is no record evidence that [he] knew he
would return to school or would have refused an extension.” Pls. Br. at 14. He supports this
argument by citing to his testimony that he ultimately attended school in fall 2015, but did not
8
know in May or June whether his financial aid would be approved. Pls. Ex. Q, Holassie Tr. at
11–12, 36.
This testimony does not create a genuine issue of material fact regarding what DPR knew
about any potential changes in Holassie’s scheduled departure date. Rather, it simply establishes
that Holassie viewed his return to school in the fall as uncertain, but not that DPR was aware of
this uncertainty.
Holassie next attempts to establish pretext by citing his deposition testimony that DPR
had previously offered to extend his employment, even when DPR knew he was scheduled to
return to school in the fall. Pls. Br. 15; Pls. Ex. Q, Holassie Tr. at 102–04. Holassie further cites
to deposition testimony by two DPR employees as evidence that “seasonal lifeguarded terms
were not fixed and offers for extension were common so long as the guard was in good
standing.” Pls. Resp. 15; Pls. Ex. O, Washington Tr. at 24–25, 27–28; Pls. Ex. T, Morris Tr. at
103.
Once again, Holassie has not proffered evidence of pretext. The testimony he cites does
not stand for the proposition he champions; rather, it establishes that employees “may work past
the Labor Day holiday,” if the pool season is extended, or there is a “shortage of personnel.” Pls.
Ex. O, Washington Tr. at 24–25; ECF No. 49, Pls. Ex. T, Morris Tr. at 103–04. Otherwise,
according to Morris, seasonal employees have a “not to exceed date,” after which “the system
will shut off” and he could no longer pay employees. Pls. Ex. T, Morris Tr. at 103–04.
Morris testified that in order to extend seasonal employees, he had to initiate a formal HR
process articulating why he wanted to extend a lifeguard’s employment: “I can’t just say send
them because I want to. No. We have a public safety need or the government’s having a service
or program that we need these individuals.” Id. at 104. When asked how DPR determined
which employees were offered extensions, he testified it depended on who was available “if you
9
were in school—if you were a student in high school, you went back to school. If you were in
college, you went back to college.” Id.
This testimony does not establish evidence of pretext. Holassie does not provide
evidence that DPR extended the pool season in 2015. Nor does he show that DPR’s procedures
for offering extensions in 2015 were unusual or even that DPR allowed other lifeguards to
continue working past their “not to exceed” dates. Accordingly, Holassie has not come forward
with evidence that DPR’s reason for terminating his employment in August was a pretext for
retaliation. Therefore, the court will grant DPR summary judgment on the termination claim.
3. DPR’s Failure to Rehire Holassie in 2016
As previously discussed, a significant time period between protected activity and alleged
retaliation is not necessarily fatal to a retaliation claim, but to survive summary judgment a
plaintiff must point to other factors leading to an inference of discrimination. See Greer, 113 F.
Supp. 3d at 311 (citation omitted). Holassie has pointed to such evidence with respect to DPR’s
failure to rehire him in 2016.
DPR claims that it did not re-hire Holassie for summer 2016 because his lifeguard
certification—which is a prerequisite for employment—had expired, and there were no available
positions when he applied. Defs. Br. at 11–12. But DPR relies solely on Holassie’s expired
certification, without identifying any hiring policies or procedures governing expired
certifications. See Defs. Ex. H. And DPR officials testified that candidates’ lack of certification
did not preclude them from getting an interview. Pls. Ex. T, Morris Tr. at 42–43. Indeed, DPR
sometimes conducted job fairs where it interviewed non-certified applicants and then “enroll[ed]
them in the certification,” id. at 42–43, and Holassie testified that in prior years he had been
hired before obtaining re-certification. Pls. Ex. Q, Holassie Tr. at 82–83.
10
In support of its assertion that it had completed hiring when Holassie applied, DPR points
to Morris’ testimony that in 2016 DPR had “hit its number” much earlier than it had in the past,
and that “[i]t’s very possible” that even if Holassie had a valid certification he may have been too
late in the process. Defs. Reply, Ex. I, Morris Tr. at 122. But this testimony does not establish
that DPR had completed the hiring process. And, as Holassie notes, other portions of Morris’
testimony suggest that he did not know whether DPR had completed hiring in April, when
Holassie applied. See Pls. Ex. T, Morris Tr. at 46 (“But I don’t recall ever—like once the
summer started [after Memorial Day], I don’t recall doing any more interviews.”); id. at 48 (“So
I can’t speak with any confidence where we were [with our numbers] in April.”); id. at 44 (Q:
“Do you remember about when you hit that quota, then, for opening weekend in 2016?”; A:
“When?”; Q: “Yeah. Do you know if it was like March or May?”; A: “No.”).
Because Holassie has proffered evidence that he engaged in protected activity and DPR’s
proffered reason for subsequently failing to rehire him may have been pretextual, the court will
deny DPR’s motion for summary judgment on Holassie’s Title VII and DCHRA failure to rehire
retaliation claims.
B. WPA Claim
“[C]laims brought under the DCWPA are subject to [the] familiar burden-shifting
framework established in McDonnell Douglas.” Payne v. Dist. of Columbia, 741 F. Supp. 2d
196, 213 (D.D.C. 2010) (citing Crawford v. Dist. of Columbia, 891 A.2d 216, 221 (D.C. 2006)).
A plaintiff must establish a prima facie case by alleging that “(1) he made a ‘protected
disclosure’; (2) his supervisor took or threatened to take a ‘prohibited personnel action’ against
him; and (3) the protected disclosure was a ‘contributing factor’ to the prohibited personnel
action.” Bowyer v. Dist. of Columbia, 793 F.3d 49, 52 (D.C. Cir. 2015) (internal quotation
marks omitted) (citing D.C. Code §§ 1–615.53(a), 1–615.54(b)) (citations omitted). Once the
11
plaintiff establishes a “prima facie case by a preponderance of the evidence, the burden shifts to
the defendant ‘to prove by clear and convincing evidence that the alleged prohibited personnel
action would have occurred for legitimate, independent reasons even if the employee had not’
made the protected disclosure.” Bowyer, 793 F.3d at 52 (alterations omitted) (quoting D.C. Code
§ 1–615.54(b); Johnson v. Dist. 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 “contrary
admissible evidence that a jury might credit” establishing that “the legitimate, independent
reason the defendant offered was pretext for an actual, discriminatory motive or did not actually
motivate the challenged personnel action.” Bowyer, 793 F.3d at 52 (quoting Johnson, 935 A.2d
at 1118 n.2). To impose liability at trial, the “jury must find ‘but for’ causation . . . .” Wilburn v.
Dist. of Columbia, 957 A.2d 921, 922 n.3 (D.C. 2008) (citing Johnson, 935 A.2d at 1113).
Holassie claims he made two types of disclosures—(1) internal complaints to his supervisors,
and (2) his EEOC complaint. See Pls. Resp. at 25–26.
Although the parties address the application of the WPA to all of DPR’s alleged
retaliatory conduct, in his Amended Complaint Holassie alleges only that his transfer to the
Rumsey Aquatic Center was retaliatory under the WPA:
COUNT II: Violation of the D.C. Whistleblower Act, D.C. Code §§ 1-615.51 et
seq.
34. Plaintiff incorporates by reference paragraphs 1-28 above.
35. As described herein, Plaintiff’s supervisors and managers, each of whom
was an employee of DPR, threatened to transfer Plaintiff in response to
Plaintiff’s complaints about the harassing, discriminatory, unfair and
retaliatory conduct to which he was subjected while working for DPR.
36. This conduct by DPR’s employees violated D.C. Whistleblower Act, D.C.
Code §§ 1-615.51 et seq.
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Am. Compl. ¶¶ 34–36. Accordingly, the court will only address the WPA claim as it relates to
the transfer.
1. Internal Complaints
Prior to his transfer, Holassie had not yet filed his EEOC charge; all his complaints were
internal. Holassie alleges that he complained to DPR (1) about switching shifts because he felt
“uncomfortable,” (2) that he was “targeted by other employees and [] harassed,” (3) that “he was
being tormented, harassed, and subjected to hostility,” and (4) that “he had been taunted and
treated with unwarranted hostility.” See Pls. Ex. L, Pls. Resp. to Interrog. No. 4 at 5; Pls. Ex. M,
Pls. Resp. to Interrog. No. 5 at 10.
Holassie argues that his complaints were “protected disclosures” for purposes of the
WPA, but relies solely on cases involving Title VII, not the WPA. See Pls. Resp. 24–26. To
establish retaliation under Title VII, a plaintiff must show that their actions constituted
“protected activity.” See 42 U.S.C. § 2000e–3(a) (making it unlawful under Title VII to retaliate
against an applicant or employee “because he has opposed any practice made an unlawful
employment practice by [Title VII], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” relating to a Title VII
charge); Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of Libr. of Cong., Inc. v.
Billington, 737 F.3d 767, 772 (D.C. Cir. 2013) (noting that the retaliation provision in 42 U.S.C.
§ 2000e–3(a) “protects employees who file discrimination charges (or engage in other statutorily
protected activity) from materially adverse retaliation by their employers.”) (citing Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). In contrast, the WPA requires that a plaintiff
have made a “protected disclosure,” which is defined as
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
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(C) Abuse of authority in connection with the administration of a public program or
the execution of a public contract;
(D) A violation of a federal, state, or local law, rule, or regulation, or of a term of a
contract between the District government and a District government contractor
which is not of a merely technical or minimal nature; or
(E) A substantial and specific danger to the public health and safety.
Williams v. Johnson, 776 F.3d 865, 870 (D.C. Cir. 2015) (quoting D.C. Code § 1–615.52(a)(6)).
Holassie’s generalized complaints of “harassment,” “torment,” and “hostility”—
containing no mention of alleged discrimination—do not meet the WPA definition of a
“protected disclosure.” In some instances, such as here, “a workplace complaint is just a
workplace complaint.’” Coleman v. Dist. Of Columbia, 794 F.3d 49, 53 (citing Wilburn v. Dist.
of Columbia, 957 A.2d 921, 925 (D.C. 2008); Williams, 776 F.3d at 870). Holassie did not, as
the WPA requires, allege “‘objectively serious’ governmental act[s] of gross mismanagement,
gross misuse or waste of public funds, abuse of authority, a material violation of local or federal
law, or a substantial and specific danger to public health and safety.” Coleman, 794 F.3d at 58
(citing Williams, 776 F.3d at 871–72). Accordingly, the court finds that Holassie’s internal
complaints did not constitute “protected disclosures” under the WPA.
2. EEOC Charge
Holassie filed his EEOC charge on August 5, 2015 and, later that day, met with Morris,
who informed him that DPR was transferring him to the Rumsey Aquatic Center. Pls. Ex. M,
Pls. Resp. to Interrog. No. 5 at 11. Holassie claims that the transfer was retaliatory, but that he
agreed to it because he wanted to continue working for DPR. Id. Despite the proximity between
the filing of the EEOC charge and the transfer, Holassie has not established a prima facie case
for retaliation under the WPA.
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While a “prohibited personnel action” can include a “threatened, or actual . . . involuntary
transfer, reassignment, or detail,” D.C. Code § 1–615.52(a)(5)(A), Holassie has not produced
evidence that the transfer constituted an adverse employment action. In evaluating alleged
retaliatory conduct, “the standard is objective but context-specific.” Mentzer v. Lanier, 677 F.
Supp. 2d 242, 251 (D.D.C.), aff’d, 408 F. App’x 379 (D.C. Cir. 2010) (citing Burlington N., 548
U.S. at 68–69 (2006)). A transfer or schedule change “may make little difference to many
workers, but may matter enormously to a [parent] with school-age children.” Mentzer, 677 F.
Supp. 2d at 251–52 (quoting Burlington N., 548 U.S. at 69). “To be actionable, the challenged
conduct must be materially adverse, producing significant, nontrivial harm to the employee”
such that they would be dissuaded from making a charge of discrimination. Mentzer, 677 F.
Supp. 2d at 252 (quoting Burlington N., 548 U.S. at 67–68).
Holassie has not met this standard. He has provided no details about the transfer:
whether the commute, working conditions or schedule were materially more difficult, or whether
his pay diminished. As such, Holassie has not “produced enough evidence to permit a
reasonable juror to conclude that [the transfer] may have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” See Mentzer, 677 F. Supp. 2d at 252;
Williams v. Dist. Of Columbia, 825 F. Supp. 2d 88, 98–101 (D.D.C. 2011) (rejecting Plaintiff’s
argument that “any employment action whatsoever” can support a WPA claim and finding that
WPA claims incorporate “a ‘materiality’ requirement akin to the one in federal employment
discrimination law”).
Even if he had established that the transfer constituted an adverse employment action,
Holassie has not proffered evidence that Morris knew that Holassie had filed an EEOC charge
just hours before their meeting. See Pls. Counter SOF ¶¶ 88, 90, 93. Morris testified that he did
not learn of Holassie’s EEOC charge until “very close to the end of August,” Defs. Reply, Ex. B,
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Morris Tr. at 100–02, and there is no evidence contradicting this testimony. Absent evidence
that Morris knew about the EEOC charge, Holassie cannot continue to press his WPA claim
arising out of his transfer. See Coleman, 794 F.3d at 64 (“Without evidence, circumstantial or
otherwise, that the decision-maker responsible for the adverse action had actual knowledge of the
[complaint], Coleman has failed to create a disputed fact question about whether the decision
was retaliatory.”) (cleaned up).
VI. CONCLUSION
For the foregoing reasons, the court will GRANT in part, and DENY in part, DPR’s
motion for summary judgment. The motion will be denied with respect to Holassie’s Title VII
and DCHRA retaliation claims predicated upon DPR’s failure to re-hire Holassie in 2016. In all
other respects the motion will be granted.
The court will also dismiss with prejudice Plaintiff’s hostile work environment claim and
any disparate treatment claims.
Date: February 1, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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