Lilly v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER LILLY,
Plaintiff,
v. Civil Action No. 15-738 (EGS)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Christopher Lilly (“Mr. Lilly”) brings this
action against Defendant District of Columbia (“the District”)
for events arising from his employment with the District of
Columbia Metropolitan Police Department (“MPD”). He alleges that
MPD discriminated against him because of his gender and sexual
orientation, created a hostile work environment, and retaliated
against him in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the District
of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01,
et seq. Pending before the Court is the District’s Motion for
Summary Judgment. See Def.’s Mot., ECF No. 45. Upon careful
consideration of the pending motion, the opposition, the reply
thereto, the applicable law, and the entire record therein, the
Court GRANTS the District’s Motion for Summary Judgment.
1
II. Background
A. Factual Background
Except where indicated, the following facts are not in
dispute. Mr. Lilly, who identifies as gay, Am. Compl., ECF No. 9
at 3 ¶ 16; 1 was an MPD police officer from February 20, 2007 to
August 16, 2013, Def.’s Reply to Pl.’s Counter Statement of
Disputed Facts (“Def.’s SOF Reply”), 2 ECF No. 54-1 at 1 ¶¶ 1-2;
Def.’s Exs. A & B, ECF No. 45-3 at 2, 4. In November 2007, Mr.
Lilly was assigned to the MPD Fourth District (“4D”) as a patrol
officer. Am. Compl., ECF No. 9 at 3 ¶ 9. He served most of his
career with MPD 4D, except for some limited duty assignments to
other divisions of MPD. See Def.’s Exs. L, Q, & Z, ECF No. 45-3
at 207, 248, 284, 287. On August 9, 2013, the Police and
Firefighters’ Retirement and Relief Board (“PFRRB”) ordered Mr.
Lilly’s retirement, determining that he was incapacitated from
further duty by reason of a disability incurred in the
performance of duty, and his retirement took effect on August
16, 2013. See Def.’s Exs. W & X, ECF No. 45-3 at 271, 275.
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document, with the exception of deposition testimony,
which is to the page number of the deposition transcript.
2 This filing encompasses the District’s Statement of Material
Facts Not in Dispute, ECF No. 45-1, and Mr. Lilly’s Counter
Statement of Disputed Facts, ECF No. 48-2. The Court relies on
the District’s SOF Reply, ECF No. 54-1, to assist with setting
forth the undisputed facts of this case.
2
1. Beginning of Mr. Lilly’s MPD Employment Issues
According to Mr. Lilly, no one at MPD knew that he
identified as gay until December 2010, when he learned that his
sexual orientation was being discussed among the other officers
after he was seen leaving a gay nightclub. Am. Compl., ECF No. 9
at 3-4 ¶¶ 10, 16; Pl.’s Opp’n, ECF No. 48-1 at 6-7. Mr. Lilly
claims that another officer called him a “fucking homo” and
“pretty gay,” and that following his “outing,” he experienced
name-calling and derogatory comments from MPD officers. Pl.’s
Opp’n, ECF No. 48-1 at 6-7; Def.’s Mot., ECF No. 45 at 4; Def.’s
Ex. C, ECF No. 45-3 at 143:13-21. For instance, Mr. Lilly claims
he was called a “sleazeball,” a “fucking faggot,” and “feminine
nickname(s)” such as “Brit-he Spears,” “Lilliana,” and “Officer
Lillita” by other officers “on a daily basis.” Pl.’s Opp’n, ECF
No. 48-1 at 7; Def.’s Mot., ECF No. 45 at 4; Def.’s Ex. C, ECF
No. 45-3 at 126:4-9, 146:5-15, 349:14-22, 350:3-351:18.
In January 2011, Mr. Lilly claims he found his locker
covered in HIV/AIDS awareness magnets, along with the word “fag”
written in Sharpie on the locker and a white liquid on the floor
simulating semen. Def.’s Ex. C, ECF No. 45-3 at 171:14-19,
176:1-21. Mr. Lilly alleges that he attempted to report the
incident via phone, id. at 158:15-18; but he did not notify an
MPD supervisor, Sergeant Audra Smith, until October 29, 2012,
see Pl.’s Exs. D & E, ECF No. 48-3 at 178, 180; Def.’s SOF
3
Reply, ECF No. 54-1 at 8 ¶ 50. MPD was officially made aware of
the incident on December 28, 2012. Pl.’s Ex. D, ECF No. 48-3 at
178. On January 13, 2013, Mr. Lilly emailed Sergeant Carlos
Mejia of MPD’s Gay and Lesbian Unit to follow up on his report,
see Def.’s Ex. H, ECF No. 45-3 at 122-24; who raised the
allegations to MPD’s Equal Employment Opportunity (“EEO”)
Compliance Branch, which opened an investigation, see Def.’s
Mot., ECF No. 45 at 6. On May 23, 2013, the MPD EEO Compliance
Branch issued its report concerning the locker incident,
concluding that the events “[did] not meet the threshold of
discrimination based on sexual orientation.” Def.’s Ex. I, ECF
No. 45-3 at 126, 130.
In addition to the locker incident, Mr. Lilly alleges that
in 2011 during an LGBTQ training, he was “singled out” and
called a “faggot.” Def.’s Ex. C, ECF No. 45-3 at 246:3-22.
During one roll call, Mr. Lilly alleges that one officer looked
at him and said, “All I know is that’s on them and faggots burn
in hell[.]” Id. at 246:15-22.
Mr. Lilly also claims that he was sexually harassed by
Officers Maurice Clifford and Scott Pinto, who “constantly” sent
him pictures of their genitalia and explicit text messages. Id.
at 149:9-20, 150:7-13, 152:2-4, 153:9-11. He alleges that once
when he was alone with these officers in the 4D gym, they pinned
him against the wall, and on other occasions, they “grabb[ed
4
his] ass at work,” engaged in thigh and shoulder rubbing, and
Officer Pinto once exposed himself to Mr. Lilly in the locker
room. Id. at 152:8-18, 316:2-22, 317:5-9, 317:20-318:3. In late
2012, Mr. Lilly claims he reported these officers, but no action
was taken. Id. at 314:6-8, 317:1-4; Pl.’s Ex. B, ECF No. 48-3 at
312:22-313:3, 314:6-315:6. But see Def.’s Mot., ECF No. 45 at 5
(contesting Mr. Lilly’s claim that he reported the alleged
harassment); Def.’s SOF Reply, ECF No. 54-1 at 2 ¶ 4.
2. Mr. Lilly’s On-Duty Incidents and Affected
Performance as an MPD Officer
On September 10, 2011, while on duty, Mr. Lilly responded
to a call during which he was “attacked with a large knife by a
mentally disturbed woman who had not bathed in” three months.
Am. Compl., ECF No. 9 at 5 ¶ 24; Pl.’s Opp’n, ECF No. 48-1 at 8-
9. As a result, Mr. Lilly developed a mites/scabies infestation
that affected his body, home, and belongings. Pl.’s Opp’n, ECF
No. 48-1 at 9; Def.’s Ex. D, ECF No. 45-3 at 70. He was placed
on sick leave by a physician from MPD’s Police and Fire Clinic
(“PFC”) on September 14, 2011, who provided a written diagnostic
impression that Mr. Lilly was suffering from Acute Stress
Disorder and Adjustment Disorder with Anxiety. Pl.’s Ex. C, ECF
No. 48-3 at 176. Mr. Lilly remained on sick leave until he was
cleared to return to work via limited duty status. See id. at
169-70. Mr. Lilly completed a limited duty assignment in the
5
Court Liaison Division of the Internal Affairs Bureau (“IAB”)
from October 23, 2011 to January 29, 2012, when he returned to
4D patrol following approval by his PFC physician. Def.’s Ex. Z,
ECF No. 45-3 at 284, 287; Am. Compl., ECF No. 9 at 7 ¶ 32.
“From January 2012 through August 2012,” Mr. Lilly alleges
that his return to MPD 4D was met with increased “scrutiny,
ridicule, and humiliation” by his fellow officers. Pl.’s Opp’n,
ECF No. 48-1 at 10; Am. Compl., ECF No. 9 at 7 ¶ 33. He claims
that he was called “bug man,” “bedbugs,” “drama queen,” and
“crazy,” and that one officer blamed his reaction to the
September 2011 incident on his sexual orientation. Pl.’s Opp’n,
ECF No. 48-1 at 10; Am. Compl., ECF No. 9 at 7 ¶¶ 34-35. Then,
on August 16, 2012, Mr. Lilly was involved in an on-duty
incident that led an assailant to evade police capture. See
Def.’s Ex. U, ECF No. 45-3 at 264-66. He was charged with
Neglect of Duty and Failure to Obey, and on March 18, 2013, he
received a fifteen-day suspension for this charge. 3 Id. at 264.
Mr. Lilly appealed this suspension, but the Chief of Police
denied his appeal on April 8, 2013, finding that his conduct
“was an embarrassment to the Department and to [him] as a law
enforcement officer.” Id. at 264-65. However, given his work
3 Mr. Lilly was also reprimanded for neglect of duty in a prior
incident on July 24, 2012. Def.’s Ex. K, ECF No. 45-3 at 202.
6
history and lack of a disciplinary record, five of the
suspension days were held in abeyance for one year. Id. at 266.
On September 27, 2012, Mr. Lilly responded to a possible
kidnapping and was exposed to bedbugs at the scene. Def.’s Ex.
E, ECF No. 45-3 at 77; Def.’s SOF Reply, ECF No. 54-1 at 2 ¶ 7.
Mr. Lilly claims that he was ordered to go inside, while the
other officers remained outside. See Def.’s Ex. E, ECF No. 45-3
at 79; Pl.’s Ex. B, ECF No. 48-3 at 282:1-22. Despite his prior
history with bedbugs, he was ordered to transport an infected
girl from the scene to the hospital. Def.’s Ex. E, ECF No. 45-3
at 80. Because of this incident, Mr. Lilly’s mental health
conditions were exacerbated. See id. at 82; Pl.’s Ex. C, ECF No.
48-3 at 141-42. As a result, on September 28, 2012, Mr. Lilly
was placed on limited duty status for the second time, and his
police powers were revoked the next day. See Def.’s Ex. F, ECF
No. 45-3 at 88; Def.’s Ex. G, ECF No. 45-3 at 107 (detailing
MPD’s policy for revoking an officer’s police powers due to a
medical condition); Def.’s SOF Reply, ECF No. 54-1 at 2 ¶ 9. He
also reported two hours late for work that day and was placed in
a Leave Without Pay (“LWOP”) status for two hours. See Pl.’s Ex.
M, ECF No. 48-3 at 287.
A few days later, Mr. Lilly was referred by MPD officials
for a Psychological Fitness for Duty Evaluation. Pl.’s Ex. F,
ECF No. 48-3 at 182; Def.’s Ex. N, ECF No. 45-3 at 234. Dr.
7
Gloria Morote (“Dr. Morote”), a licensed clinical psychologist,
evaluated Mr. Lilly on October 10, 2012 and October 24, 2012,
alongside MPD referral documents informing her that “following a
period of good service[,] Officer Lilly’s performance and
appearance began to deteriorate in August/September 2012[,]”
including “two major investigations for neglect of duty,”
“deterioration” in his mental condition, and “marked nervousness
and erratic behavior while on-duty after an exposure to
bedbugs.” Pl.’s Ex. F, ECF No. 48-3 at 182-83; Def.’s SOF Reply,
ECF No. 54-1 at 8 ¶ 51. Following her evaluation, Dr. Morote
concluded that Mr. Lilly should remain on limited duty status
due to his continued “struggle with symptoms of a mood disorder,
specifically anxiety with obsessive features, to the degree that
can adversely impact his ability to perform the requirements of
the job.” Pl.’s Ex. F, ECF No. 48-3 at 187.
On October 13, 2012, Mr. Lilly received an Annual
Performance Rating of “Does Not Meet Expectations” for the
period between October 1, 2011 and September 30, 2012, which was
“significantly lower” than his prior rating. Pl.’s Ex. Q, ECF
No. 48-3 at 295. In addition, between February 2011 and November
2012, Mr. Lilly was disciplined for various incidents of
tardiness and for being absent without official leave (“AWOL”).
See, e.g., Pl.’s Ex. L, ECF No. 48-3 at 285 (notifying Mr. Lilly
on February 11, 2011 of his one minute of tardiness and placing
8
him in LWOP status for one hour); Pl.’s Ex. M, ECF No. 48-3 at
287 (notifying Mr. Lilly on September 29, 2012 of his two hours
of tardiness and placing him in LWOP status for two hours);
Pl.’s Ex. N, ECF No. 48-3 at 289 (notifying Mr. Lilly on
November 3, 2012 of his two hours of tardiness and placing him
in LWOP status for two hours); Pl.’s Ex. O, ECF No. 48-3 at 291
(notifying Mr. Lilly on November 27, 2012 that he was placed in
AWOL status following his six-hour absence on November 20,
2012); see also Def.’s SOF Reply, ECF No. 54-1 at 7 ¶¶ 41-44.
3. Events from the Final Year of Mr. Lilly’s MPD
Employment Leading up to His Retirement
On January 7, 2013, IAB’s Internal Affairs Division (“IAD”)
was notified that the Executive Office of the Chief of Police
received an anonymous email complaint alleging that Mr. Lilly
had “conducted himself in a manner that was unbecoming of a[n
MPD] police officer.” See Def.’s Ex. N, ECF No. 45-3 at 225. The
complainant claimed that Mr. Lilly had posted an inappropriate
video on YouTube and was “mentally ill” and a “disgrace” to MPD.
Id. IAD opened an investigation, and Mr. Lilly and his direct
supervisor, Sergeant Christopher Moore, were interviewed. Id. at
227-28. Following the interviews and IAD’s review of twenty-six
videos involving Mr. Lilly singing on YouTube, it concluded in a
report dated April 17, 2013 that there was no evidence to
support that he had “demonstrated conduct that was unbecoming of
9
a police officer[,]” as he never identified himself as an
officer or wore clothing or other emblems that would identify
him as such in the videos. Id. at 233-34. Moreover, IAD found
that “in the videos, Officer Lilly [was] exercising his right to
Freedom of Speech and Freedom of Expression,” and it recommended
that the investigation be closed due to “insufficient facts.”
Id. at 234. However, because IAD was not equipped to assess Mr.
Lilly’s mental condition, it forwarded the allegation regarding
his mental status to MPD’s PFC for review. Id. at 235.
On January 22, 2013, MPD notified Mr. Lilly that he was
being placed in a “chargeable sick leave status” since he failed
to request approval to continue working under limited duty
status beyond the period granted to him in September 2012, as
required by MPD policy. See Pl.’s Ex. S, ECF No. 48-3 at 306.
Thereafter, Mr. Lilly submitted a request to extend his limited
duty status by thirty days, see Pl.’s Ex. T, ECF No. 48-3 at
308; which was granted, see Pl.’s Ex. U, ECF No. 48-3 at 310.
Mr. Lilly was detailed to the Investigative Services Bureau,
Youth Investigations Division (“YID”), effective March 17, 2013,
see Def.’s Ex. L, ECF No. 45-3 at 207; until early May 2013,
when he returned to 4D under limited duty status, see Def.’s Ex.
Q, ECF No. 45-3 at 247-48; Def.’s Ex. R, ECF No. 45-3 at 250.
Following his return, Mr. Lilly alleges the “verbal torture[]
and ridicule” continued, including the name calling of “faggot,”
10
“drama queen,” “bedbug 2.0.,” and “fairy.” Am. Compl., ECF No. 9
at 16 ¶ 77; Pl.’s Opp’n, ECF No. 48-1 at 19.
In 2013, Mr. Lilly reported late to work on several
occasions. On January 26, 2013, Mr. Lilly notified his watch
commander that he had taken Ambien—a prescription medication—and
overslept, causing him to be AWOL for eight hours and not report
for work that day. See Def.’s Ex. J, ECF No. 45-3 at 187-88,
190-91 (showing that IAB investigated this AWOL incident and
cited Mr. Lilly for adverse action); Def.’s SOF Reply, ECF No.
54-1 at 3 ¶ 14. Four days later, on January 30, 2013, Mr. Lilly
was AWOL again for five hours and fifteen minutes. See Def.’s
Ex. K, ECF No. 45-3 at 201. Mr. Lilly told his superiors that he
was late because he had an appointment, realized he forgot his
cell phone, and drove home to get it before reporting for duty,
but later admitted that he overslept. See id. at 197, 200-03(showing that IAB investigated this incident and cited Mr. Lilly
for being AWOL and making false statements to his superior
officers); Def.’s SOF Reply, ECF No. 54-1 at 3 ¶¶ 15-17.
A few months later, on April 18, 2013, Mr. Lilly again
reported late to work by five and a half hours. See Def.’s Ex.
O, ECF No. 45-3 at 237-38; Def.’s SOF Reply, ECF No. 54-1 at 4 ¶
24. While initially claiming that he overslept, upon arriving at
work, Mr. Lilly admitted to his superior officer that he had
been having an anxiety attack. See Def.’s Ex. O, ECF No. 45-3 at
11
241-43 (showing that IAB investigated this incident and cited
Mr. Lilly for being AWOL and making false statements to his
superior officers); see also Def.’s Ex. S, ECF No. 45-3 at 252
(imposing a five day suspension due to Mr. Lilly’s various AWOL
incidents but holding all five in abeyance for twelve months).
Mr. Lilly filed a witness statement, dated April 18, 2013,
about this April AWOL incident, attributing his oversleeping to
“work-related issues.” See Def.’s Ex. P, ECF No. 45-3 at 245. In
this statement, he also reported an incident from the prior
week, in which he claimed to hear YID employees making fun of
the “coming out process” in the presence of senior officials who
“did not stop it.” 4 See id.; Pl.’s Ex. B, ECF No. 48-3 at 190:1-
194:1; Def.’s Ex. I, ECF No. 45-3 at 149-50; Def.’s SOF Reply,
ECF No. 54-1 at 4 ¶ 25. MPD’s EEO Compliance Branch investigated
Mr. Lilly’s claim but did not find any evidence to support it
and concluded that Mr. Lilly was not “subjected to an atmosphere
of sufficiently severe or pervasive harassment” based on the
alleged statement. See Def.’s Ex. I, ECF No. 45-3 at 130.
On April 11, 2013, two U.S. Park Police officers contacted
MPD after they encountered Mr. Lilly walking near a ravine on
the shoulder of the George Washington Memorial Parkway. See
4 Mr. Lilly claims that his coworkers engaged in “bad hate” jokes
by chanting “Sergeant Z’s coming out of the closet, Sergeant Z’s
–- like I’m a fairy faggot, I’m a fairy faggot coming out of the
closet.” Pl.’s Ex. B, ECF No. 48-3 at 193:1-194:1.
12
Def.’s Ex. M, ECF No. 45-3 at 209, 214-15; Def.’s SOF Reply, ECF
No. 54-1 at 3-4 ¶ 19. When questioned by the officers, Mr. Lilly
identified himself as an MPD officer and displayed a duplicate
copy of his MPD badge, despite his police powers having been
revoked in September 2012. See Def.’s Ex. F, ECF No. 45-3 at 90;
Def.’s Ex. M, ECF No. 45-3 at 215; Def.’s SOF Reply, ECF No. 54-
1 at 4 ¶ 20. IAB opened an investigation into this incident,
which led Mr. Lilly to be cited for corrective action in the
form of an official reprimand for displaying his spare MPD badge
while his police powers were revoked. Def.’s Ex. M, ECF No. 45-3
at 215. IAB concluded that this conduct was “prejudicial to the
reputation and good order of the police force” and “detrimental”
to MPD in violation of MPD’s General Order 120.21. Id.Then, on April 19, 2013, MPD’s PFC issued its formal
recommendation (via a written report by Dr. Morote) to the PFRRB
that Mr. Lilly be considered for disability retirement. Def.’s
Ex. D, ECF No. 45-3 at 69, 74. The report noted that Mr. Lilly
had been on limited duty status since September 2012 “following
deterioration in his work performance and emotional stability
after an exposure to bedbugs.” Id. at 74. The report reviewed
Mr. Lilly’s medical records 5 and mental health history to
5 This review included Mr. Lilly’s completion of a January 31,
2013 Psychometric Test (a six-page questionnaire). See Pl.’s Ex.
R, ECF No. 48-3 at 299-304.
13
conclude that he “continue[d] to struggle with symptoms of a
mood disorder . . . that [could] adversely impact his ability to
perform” and was presenting “with symptoms of depression,
anxiety, and behavioral disinhibition which disable[d] his
insight and capacity to function as a police officer.” Id. at
69, 74. The PFC submitted its recommendation to the PFRRB
pursuant to D.C. Code §§ 5-633 and 5-634, which provide that
“regardless of whether the prognosis is that the member will be
able to perform the full range of duties after achieving maximum
medical improvement, the Director shall process for retirement,
pursuant to § 5-710, those members of the [MPD] who spend all or
part of 172 cumulative work days in a less-than-full-duty status
over a 2-year period as a result of any one performance-of-duty
[or non performance-of-duty] injury or illness, including any
complications relating to the injury or illness.” Id. at 74-75.
On May 22, 2013, Mr. Lilly was placed on administrative
leave, Def.’s SOF Reply, ECF No 54-1 at 5 ¶ 28; after “rambling”
with “glassy” eyes to a commanding officer about being sent by
his family to a “funny farm,” see Def.’s Ex. R, ECF No. 45-3 at
250. The commanding officer thereafter made requests to have Mr.
Lilly removed from 4D limited duty. Id. Then, on May 31, 2013,
Mr. Lilly self-admitted into Dominion Hospital, a mental health
facility in Virginia, to receive psychiatric treatment. See
Def.’s Ex. AA, ECF No. 45-3 at 289; Def.’s Ex. BB, ECF No. 45-3
14
at 294. He was also later investigated by IAB regarding whether
he provided false information about his mental health history in
his recruitment package, allegations which were sustained in
IAB’s final investigative report dated August 8, 2013. See
Def.’s Ex. T, ECF No. 45-3 at 257-58; Def.’s SOF Reply, ECF No.
54-1 at 6 ¶ 34.
After conducting an evidentiary hearing on July 18, 2013,
Pl.’s Ex. A, ECF No. 48-3 at 12; on August 9, 2013, the PFRRB
issued an interim order determining that Mr. Lilly was
“incapacitated from further duty by reason of a disability
incurred in the performance of duty after more than five years
of creditable service[,]” effective August 16, 2013, Def.’s Ex.
W, ECF No. 45-3 at 271. The PFRRB finalized this interim order
on December 5, 2013. See Def.’s Ex. X, ECF No. 45-3 at 276. 6
B. Procedural Background
Mr. Lilly made internal complaints to MPD on the following
dates: (1) October 29, 2012, when he notified MPD supervisor
Sergeant Audra Smith about the 2011 locker incident, see Pl.’s
Exs. D & E, ECF No. 48-3 at 178, 180; Def.’s SOF Reply, ECF No.
54-1 at 8 ¶ 50; (2) January 13, 2013, when he emailed Sergeant
Carlos Mejia of MPD’s Gay and Lesbian Unit to follow up on his
6 Mr. Lilly was later informed that he owed a fine of $3,559.20
to MPD because he retired prior to serving a fifteen-day
suspension that was served to him on April 8, 2013. See Def.’s
Exs. U & V, ECF No. 45-3 at 264, 266, 269.
15
report about the 2011 locker incident, see Def.’s Ex. H, ECF No.
45-3 at 122-24; and (3) April 18, 2013, 7 when he reported conduct
making fun of the “coming out process” that occurred in the
presence of YID officials, see Def.’s Ex. I, ECF No. 45-3 at
149-50. Both the locker incident and the incident during Mr.
Lilly’s YID detail were investigated by MPD’s EEO Compliance
Branch, and those findings were detailed in its final
investigative report, dated May 23, 2013. See generally id.
On March 11, 2014, Mr. Lilly filed a Charge of
Discrimination with the Alexandria Office of Human Rights, which
was cross-filed with the U.S. Equal Employment Opportunity
Commission (“EEOC”). 8 See Def.’s Ex. Y, ECF No. 45-3 at 279;
Def.’s SOF Reply, ECF No. 54-1 at 6 ¶ 40. Mr. Lilly amended his
charge twice, on March 13, 2014 and March 19, 2014, “adding
allegations that the locker incident was not properly
investigated; that he was forced to retire; and that he was not
receiving full retirement benefits.” Def.’s Mot., ECF No. 45 at
10; Pl.’s Opp’n, ECF No. 48-1 at 20; see Def.’s Ex. Y, ECF No.
7 Both Mr. Lilly and the District identified April 17, 2013 as
the date of this reporting. See Def.’s Mot., ECF No. 45 at 10;
Pl.’s Opp’n, ECF No. 48-1 at 20. However, Mr. Lilly’s
“Complainant/Witness Statement” reporting this incident is dated
April 18, 2013. See Def.’s Ex. I, ECF No. 45-3 at 149.
8 Mr. Lilly’s charge checked the “boxes” for discrimination based
on sex, retaliation, and disability. See Def.’s Ex. Y, ECF No.
45-3 at 279. However, none of the counts in Mr. Lilly’s
complaint allege discrimination based on disability, so the
Court does not analyze it. See Am. Compl., ECF No. 9 at 18-30.
16
45-3 at 279-82. On February 12, 2015, the EEOC denied Mr.
Lilly’s claim and mailed him his right-to-sue letter, which he
received on March 23, 2015. See Compl., Ex. A, ECF No. 1-3 at 1;
Compl., Ex. B, ECF No. 1-4 at 1; Compl., Ex. C, ECF No. 1-5 at
1; Am. Compl., ECF No. 9 at 18 ¶ 92. On May 16, 2015, Mr. Lilly
filed this action, asserting Title VII and DCHRA claims, along
with constitutional claims under 42 U.S.C. § 1983. See Compl.,
ECF No. 1 at 1-2; Am. Compl., ECF No. 9 at 1.
On January 7, 2016, the District moved to dismiss Mr.
Lilly’s constitutional claims. See Def.’s Mot. to Dismiss, ECF
No. 13 at 1. The Court granted the District’s partial motion to
dismiss on September 26, 2016, see Order, ECF No. 18 at 1; and
the District filed its answer as to Mr. Lilly’s remaining claims
on October 12, 2016, see Def.’s Answer, ECF No. 20. On August 9,
2018, the District filed the present Motion for Summary Judgment
along with exhibits. See Def.’s Mot., ECF No. 45; Def.’s Errata
& Exs., ECF No. 46. Mr. Lilly filed his opposition and
accompanying exhibits on October 19, 2018, see Pl.’s Opp’n, ECF
No. 48; to which the District replied on February 5, 2019, see
Def.’s Reply, ECF No. 54.
While the District’s present motion was pending, it
requested leave to file an amended answer on February 11, 2019.
See Def.’s Contested Mot. for Leave to Amend its Answer, ECF No.
61. The case was stayed, see Minute Order (Feb. 28, 2019); until
17
the Court granted this motion, allowing the District “to amend
its answer to add the statute of limitations as an affirmative
defense,” see Minute Order (Oct. 26, 2020). The District
thereafter filed its amended answer on October 27, 2020. See
Def.’s Am. Answer, ECF No. 67. The District’s Motion for Summary
Judgment is now ripe and ready for the Court’s adjudication.
III. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). The moving party must identify “those portions of
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S. Ct. 2548 (1986) (internal quotation marks omitted). On the
other hand, to defeat summary judgment, the nonmoving party must
“go beyond the pleadings” to designate specific facts showing
that there is a genuine issue of material fact for trial. Id. at
324. A material fact is one that is capable of affecting the
outcome of the litigation, while a genuine dispute is one in
which “the evidence is such that a reasonable jury could return
18
a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). The nonmoving
party’s opposition “must consist of more than mere unsupported
allegations or denials and must be supported by affidavits or
other competent evidence” in the record. Musgrove v. Dist. of
Columbia, 775 F. Supp. 2d 158, 164 (D.D.C. 2011), aff’d, 458 F.
App’x 1 (D.C. Cir. 2012); Celotex, 477 U.S. at 324. Furthermore,
in the summary judgment analysis, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson, 477 U.S. at 255.
IV. Analysis
Mr. Lilly alleges three claims under Title VII and the
DCHRA: (1) discrimination based on gender and sexual
orientation; (2) hostile work environment; and (3) retaliation.
See Am. Compl., ECF No. 9 at 23-30. Because the legal standards
for establishing these claims under Title VII and the DCHRA are
substantively the same, see Carpenter v. Fed. Nat’l Mortg.
Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999) (explaining that, “[i]n
interpreting its Human Rights Act[,] the District of Columbia .
. . generally seems ready to accept the federal constructions of
Title VII, given the substantial similarity between it and the
[DCHRA]”); the Court will analyze Mr. Lilly’s claims under these
statutes together, first outlining the applicable legal
19
standards for these three claims below, see Williams v. Dist. of
Columbia, 317 F. Supp. 3d 195, 199 (D.D.C. 2018).
Under Title VII and the DCHRA, an employer cannot
“discriminate against any individual with respect to his . . .
employment, because of [his] race, color, religion, sex, or
national origin.” See 42 U.S.C. § 2000e-2(a)(1); D.C. Code § 2-
1402.11 (including discrimination based on sexual orientation).
To establish discrimination, Mr. Lilly must prove two elements:
(1) he suffered an adverse employment action (2) because of his
gender or sexual orientation. See Brady v. Off. of Sergeant at
Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). If he succeeds in
doing so, the burden shifts to the District “to articulate some
legitimate, nondiscriminatory reason for the [adverse action].”
Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, 101 S.
Ct. 1089 (1981). The District’s burden is satisfied if it
“explains what [it] has done or produc[es] evidence of
legitimate nondiscriminatory reasons.” Id. at 256 (internal
quotation marks omitted). Then, the burden shifts back to Mr.
Lilly “to prove by a preponderance of the evidence that the
legitimate reasons offered by the [District] were not its true
reasons, but were a pretext for discrimination.” Id. at 253.
To establish a hostile work environment claim, Mr. Lilly
must show that: “(1) he is a member of a protected class; (2) he
was subjected to unwelcome harassment; (3) the harassment
20
occurred because of [his] protected status; (4) the harassment
affected a term, condition, or privilege of employment; and (5)
the [District] knew or should have known of the harassment in
question but nonetheless failed to either take steps to prevent
it or afford [him] prompt remedial action.” Dudley v. Wash.
Metro. Area Transit Auth., 924 F. Supp. 2d 141, 152 (D.D.C.
2013). Whether Mr. Lilly’s MPD workplace was actionably hostile
involves a subjective and objective analysis, i.e., Mr. Lilly
must have subjectively perceived the environment to be hostile,
see Carter-Frost v. Dist. of Columbia, 305 F. Supp. 3d 60, 75
(D.D.C. 2018); and the conduct must have been “sufficiently
severe or pervasive to alter the conditions of [his] employment
and [objectively] create an abusive working environment[,]”
Dudley, 924 F. Supp. 2d at 152 (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S. Ct. 367 (1993)). Under the
objective prong, the Court “looks to the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it
interfere[d] with [Mr. Lilly’s] work performance[,]” Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008); as “simple
teasing, offhand comments, and isolated incidents” do not amount
to actionable workplace harassment, Faragher v. City of Boca
Raton, 524 U.S. 775, 788, 118 S. Ct. 2275 (1998).
21
Finally, to establish a retaliation claim, Mr. Lilly must
show that: (1)he engaged in statutorily protected activity; (2)
he suffered a materially adverse action by the District; and (3)
a causal link connects the two. See Carter-Frost, 305 F. Supp.
3d at 73 (citing Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir.
2009)). Upon this showing, the burden shifts to the District “to
articulate a legitimate, non-retaliatory reason for its
actions,” and if it does so, the burden returns to Mr. Lilly to
prove that the “asserted non-retaliatory reason was mere pretext
for retaliation.” Id. (citing Jones, 557 F.3d at 677). The “sole
remaining question” thus becomes “whether, based on all the
evidence, a reasonable jury could conclude that [the] proffered
reason was” not the real reason for the adverse action and that
the District intentionally retaliated against Mr. Lilly. Pardo–
Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010); Walker
v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015).
Mr. Lilly’s complaint alleges a range of discriminatory and
retaliatory conduct spanning several years of his employment
with MPD. “However, the Court must be careful about which events
it can and cannot consider[,]” as before determining whether
each of the alleged events meets the above standards for
discrimination, hostile work environment, and retaliation
claims, the Court must assess whether Mr. Lilly has properly and
timely exhausted his administrative remedies. See Dudley, 924 F.
22Supp. 2d at 154; see also Pierson v. Wash. Metro. Area Transit
Auth., 821 F. Supp. 2d 360, 364 (D.D.C. 2011) (“In actions
brought under Title VII, a court has authority over only those
claims that are (1) contained in the plaintiff’s administrative
complaint or claims ‘like or reasonably related to’ those claims
in the administrative complaint[,] and (2) claims for which the
plaintiff exhausted administrative remedies.”). As such, the
Court first discusses these procedural requirements before
turning to the merits of Mr. Lilly’s claims.
A. Mr. Lilly’s Claims Under Title VII and the DCHRA Are,
in Part, Procedurally Time-Barred
As an initial matter, the District argues that Mr. Lilly’s
“hostile work environment claims and most of his discrete claims
of discrimination and retaliation should be dismissed.” Def.’s
Mot., ECF No. 45 at 13. Specifically, the District argues that
Mr. Lilly’s Title VII claims that accrued prior to May 15, 2013 9
should be barred as untimely, and in addition, for failure to
exhaust, as it contends that “most of the challenged employment
actions that [Mr. Lilly] alleges in the Amended Complaint” were
not raised in his filed Charge of Discrimination. Id. at 12-13.
In addition, the District argues that Mr. Lilly’s DCHRA claims
9 The District initially alleged that Mr. Lilly’s Title VII
claims prior to May 13, 2013 should be time-barred, see Def.’s
Mot., ECF No. 45 at 12-13; but it corrected this date to May 15,
2013 in its Reply brief, see Def.’s Reply, ECF No. 54 at 2 n.1.
23
that accrued prior to June 13, 2013 should also be barred as
untimely under that Act. Id. at 14-15. Mr. Lilly opposes these
procedural arguments, contending that all of his Title VII and
DCHRA claims are timely because they were part of a “continuing
violation,” which benefits from the rule that just one act that
is part of the hostile work environment need be timely for the
Court to consider the whole spectrum of conduct, untimely acts
included. See Pl.’s Opp’n, ECF No. 48-1 at 22-26. In addition,
Mr. Lilly argues that the District failed to raise a timeliness
argument in its Rule 12(b)(6) motion to dismiss and therefore
waived its right to raise a statute of limitations defense and
should not now get “a second bite at the apple[.]” Id. at 25.
The District replies that: (1) the “alleged discriminatory acts
pleaded by” Mr. Lilly are “separate and distinct discrimination
claims” rather than “a continuing pattern of discrimination;”
and (2) its exhaustion and “time barred defense[s] ha[ve] not
been waived.” See Def.’s Reply, ECF No. 54 at 1-9.
1. Title VII: Mr. Lilly’s Hostile Work Environment
Claim Is Time-Barred, Along with All Alleged
Discrete Discriminatory or Retaliatory Acts
Prior to May 15, 2013
The Court begins by assessing exhaustion under Title VII,
which “requires that an employee exhaust [his] administrative
remedies by filing a claim with the EEOC prior to filing suit in
the district court.” Headen v. Wash. Metro. Area Transit Auth.,
24
741 F. Supp. 2d 289, 294 (D.D.C. 2010). The Act “provides
detailed procedures for bringing administrative charges, and . .
. ‘specifies with precision’ the prerequisites that a plaintiff
must satisfy before filing suit.” Dudley, 924 F. Supp. 2d at 154(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109, 122 S. Ct. 2061 (2002)). Specifically, Title VII requires
an aggrieved employee to file a charge with the EEOC within 180
days “after the alleged unlawful employment practice occurred,”
but extends this period to 300 days if the employee “has [first]
instituted proceedings with a State or local agency.” Dieng v.
Am. Insts. for Rsch. in Behav. Scis., 412 F. Supp. 3d 1, 12
(D.D.C. 2019) (citing 42 U.S.C. § 2000e-5(e)(1)). “Only after
the EEOC has notified the aggrieved person of its decision to
dismiss or its inability to bring a civil action within the
requisite time period can that person bring a civil action
[himself].” Park v. How. Univ., 71 F.3d 904, 907 (D.C. Cir.
1995). The aggrieved employee has ninety days following receipt
of that notice to commence a civil action. Akridge v. Gallaudet
Univ., 729 F. Supp. 2d 172, 177-78 (D.D.C. 2010) (citing 42
U.S.C. §§ 2000e–5(f)(1), 12117(a)). 10
10Although the District notes that Mr. Lilly filed this action
ninety-three days after the EEOC issued his right-to-sue notice
on February 12, 2015, it does not appear to contest Mr. Lilly’s
conformance with the ninety-day right-to-sue period, as it notes
that the ninety-day countdown does not begin “until the date of
receipt of the right-to-sue notice[,]” which Mr. Lilly states
25
The parties do not dispute that Mr. Lilly benefits from the
300-day extension period, as he first “instituted proceedings
with a State or local agency,” see 42 U.S.C. § 2000e-5(e)(1);
and his claims were then cross-filed with the EEOC, see Craig v.
Dist. of Columbia, 881 F. Supp. 2d 26, 31 (D.D.C. 2012); Def.’s
Ex. Y, ECF No. 45-3 at 279. Pursuant to Title VII, Mr. Lilly was
thus required to file his Charge of Discrimination “within three
hundred days after the alleged unlawful employment practice
occurred[.]” 42 U.S.C. § 2000e-5(e)(1). Here, Mr. Lilly filed
his charge on March 11, 2014. See Def.’s Ex. Y, ECF No. 45-3 at
279. Calculating 300 days backwards from that date, only Title
VII claims occurring on or after May 15, 2013 fall within the
timely filing window. See Def.’s Reply, ECF No. 54 at 2 n.1.
However, the U.S. Supreme Court has determined that Title
VII applies different limitations rules for hostile work
environment claims and “discrete discriminatory act” claims. See
Singletary v. Dist. of Columbia, 351 F.3d 519, 526 (D.C. Cir.
2003) (citing Morgan, 536 U.S. at 113). For discrete retaliatory
or discriminatory acts like terminations, each act “starts a new
clock for filing charges alleging that act[,]” and these acts
become “not actionable if time barred, even when they are
related to acts alleged in timely filed charges.” Morgan, 536
was March 23, 2015. See Def.’s Mot., ECF No. 45 at 14 n.6; Am.
Compl., ECF No. 9 at 18 ¶ 92.
26
U.S. at 113. In contrast, hostile work environment claims “are
different in kind from discrete acts” because “[t]heir very
nature involves repeated conduct[,]” i.e., “a series of separate
acts that collectively constitute one ‘unlawful employment
practice.’” Id. at 115, 117. Accordingly, the limitations rule
for hostile work environment claims provides that when “an act
contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be considered
by the court for the purposes of determining liability.” Id. at
117. In other words, a hostile work environment claim “will not
be time barred so long as all acts which constitute the claim
are part of the same unlawful employment practice and at least
one act falls within the time period.” Id. at 122; Singletary,
351 F.3d at 526-28; Craig, 881 F. Supp. 2d at 32 (“Because a
hostile work environment claim aggregates numerous occurrences,
. . . plaintiffs need only allege that one or more contributing
acts occurred within the relevant time period.”). 11
The parties agree that “[u]nless the discriminatory acts
pleaded by [Mr. Lilly] constitute a continuing pattern of
discrimination, each [discrete] claim must have occurred within
the 300-day period before the charge was filed.” See Def.’s
11This same division between the limitations rules for discrete
discriminatory acts and hostile work environment claims under
Title VII applies to the equivalent DCHRA claims. See Barrett v.
Covington & Burling LLP, 979 A.2d 1239, 1245-47 (D.C. 2009).
27
Reply, ECF No. 54 at 1, 7-8; Pl.’s Opp’n, ECF No. 48-1 at 22-23.
Therefore, to the extent that Mr. Lilly alleges any discrete
instances of discrimination or retaliation prior to May 15,
2013, the Court concludes that they are time-barred under Title
VII. However, the parties debate whether many of the alleged
acts that occurred between 2010 and Mr. Lilly’s retirement date
are “discrete discriminatory acts” that are mostly time-barred,
or are instead all “part of the same actionable hostile work
environment practice,” where only one act need be timely for the
whole series of conduct to be considered. Singletary, 351 F.3d
at 526-27; compare Def.’s Reply, ECF No. 54 at 2-3 (listing all
of the alleged acts the District views as “separate and distinct
discrimination claims” that “were required to be filed by May
15, 2013,” and are thus “time-barred”), with Pl.’s Opp’n, ECF
No. 48-1 at 23 (alleging a continuing pattern of “intentional
and persistent derogatory comments towards [Mr. Lilly]” and
harassment, “which continued through his involuntary retirement”
and included acts occurring after May 15, 2013).
The Court is unpersuaded that Mr. Lilly has sufficiently
alleged an ongoing hostile work environment claim up until the
date that he was effectively retired. As noted by the District,
Mr. Lilly returned to MPD 4D following his detail to YID on May
5, 2013, see Def.’s Ex. Q, ECF No. 45-3 at 247-48; but he was
placed on administrative leave on May 22, 2013, see Def.’s Ex.
28
R, ECF No. 45-3 at 250; and shortly thereafter, on May 31, 2013,
he self-admitted to Dominion Hospital to receive psychiatric
treatment, see Def.’s Ex. AA, ECF No. 45-3 at 289; Def.’s Ex.
BB, ECF No. 45-3 at 294. Thus, following May 22, 2013, Mr. Lilly
was not in a position to experience any alleged “discriminatory
intimidation, ridicule, and insult[,]” as he was no longer an
active participant in MPD’s working environment. See Barrett v.
Covington & Burling LLP, 979 A.2d 1239, 1245-46 (D.C. 2009)
(determining that a conversation between the former employee and
her employer regarding her termination did not make her hostile
work environment claim timely, as that conversation “simply was
not part of the work environment—appellant had not been in the
workplace for months” due to medical leave). Nor is Mr. Lilly
permitted to “bootstrap” any timely alleged discrete acts of
retaliation or discrimination into his broader hostile work
environment claim. See Marcus v. Yellen, No. 09-1686, 2022 WL
3910568, at *23 (D.D.C. Aug. 31, 2022) (citation omitted). Thus,
the Court is only left with the question of whether Mr. Lilly
has alleged any timely acts contributing to his hostile work
environment claim between May 15, 2013 and May 22, 2013 (the
date he was placed on administrative leave), such that the Court
can consider “the entire time period of the hostile environment”
to determine the District’s liability. See Morgan, 536 U.S. at
117; Def.’s Mot., ECF No. 45 at 12 (noting that Mr. Lilly only
29
worked seven days out of the 300-day Title VII filing period—May
15, 2013 to May 21, 2013—so any act making his hostile work
environment claim timely must have occurred during that window).
As the District notes, “[t]he only evidence” to support a
hostile work environment claim that Mr. Lilly “was subject to
any discriminatory name-calling or derogatory comments on or
after May 1[5], 2013, is [his] sworn testimony.” Def.’s Mot.,
ECF No. 45 at 13. The District points to Mr. Lilly’s deposition
testimony that he experienced name-calling “every day” following
being “outed” as gay in December 2010 and that he was sexually
harassed “non-stop” and “constantly” by Officers Clifford and
Pinto. See id.; Def.’s Ex. C, ECF No. 45-3 at 143:1-144:8,
149:9-20. As to the seven-day time period at issue, Mr. Lilly
claims he has “allege[d] acts that took place . . . after May
1[5], 2013,” including “persistent derogatory comments” and
“harassment based on sexual orientation and personal
appearance[.]” Pl.’s Opp’n, ECF No. 48-1 at 23. Yet, he does not
cite to his sworn testimony to support this statement, nor
indicate anywhere in the record that might prove that a hostile
event occurred between May 15, 2013 and May 21, 2013. In fact,
the Court only located this specific time period in Mr. Lilly’s
Amended Complaint, in which he alleged that following May 16,
2013, “the discriminatory verbal torture[] and ridicule due to
[his] sexual orientation” continued and “[h]is environment
30
remained hostile” due to “[n]ame calling such as ‘faggot,’
‘drama queen,’ and ‘bedbug 2.0[.]’” See Am. Compl., ECF No. 9 at
16 ¶¶ 76-77. Of note, however, the pleadings are factually
inconsistent with the record, as the Amended Complaint does not
mention that Mr. Lilly was placed on administrative leave on May
22, 2013, and instead alleges that he continued to work and
experience discriminatory actions “[o]ver the course of June
2013 through July 2013” until he was admitted into Dominion
Hospital, when the record instead shows that he self-admitted on
May 31, 2013. Compare id. at 16 ¶ 78, with Def.’s Ex. R, ECF No.
45-3 at 250, and Def.’s Ex. AA, ECF No. 45-3 at 289.
Drawing all reasonable inferences in his favor, the Court
is not persuaded that Mr. Lilly has met his burden to defeat
summary judgment as to the timeliness of his hostile work
environment claim. Mr. Lilly is required to “go beyond the
pleadings” to designate specific facts showing a genuine dispute
as to the existence of a timely hostile act to support his
claim, see Celotex, 477 U.S. at 324; but instead, his opposition
consists of “mere unsupported allegations” that are not backed
by any affidavits or “other competent evidence” in the record,
Musgrove, 775 F. Supp. 2d at 164; see also Morgan v. Fed. Home
Loan Mortg. Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001), aff’d,
328 F.3d 647 (D.C. Cir. 2003) (“While summary judgment must be
approached with special caution in discrimination cases, a
31
plaintiff is not relieved of [his] obligation to support [his]
allegations by affidavits or other competent evidence showing
that there is a genuine issue for trial.”); Bolden v. Winter,
602 F. Supp. 3d 130, 136 (D.D.C. 2009) (prohibiting a court on
summary judgment from “overlook[ing] a plaintiff’s failure to
submit evidence that creates a genuine factual dispute”).
Even Mr. Lilly’s “direct testimonial evidence,” which can
be used to defeat summary judgment, see Pierson, 821 F. Supp. 2d
at 364 (quoting Arrington v. United States, 473 F.3d 329, 338
(D.C. Cir. 2006)); does not specifically mention the relevant
seven-day time period. Instead, his deposition testimony only
generalizes with “vague, self-serving allegations” that the
discriminatory name-calling and comments were “daily” and the
harassment “constant,” which is “not sufficient evidence to
create a dispute of material fact.” Carter-Frost, 305 F. Supp.
3d at 74. The Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has indicated that summary judgment “is
most likely when a plaintiff’s claim is supported solely by
[his] own self-serving testimony, unsupported by corroborating
evidence, and undermined either by other credible evidence [in
the record], . . . or other persuasive evidence that the
plaintiff has deliberately committed perjury.” Arrington, 473
F.3d at 343 (Brown, J. concurring in part). Here, there is no
allegation of perjury, but the allegations in the Complaint are
32
undermined by other credible evidence in the record, and Mr.
Lilly’s sworn testimony remains unsupported by any corroborating
evidence. Cf. Craig v. Dist. of Columbia, 74 F. Supp. 3d 349,
373 n.23 (D.D.C. 2014) (considering the plaintiff’s testimony on
summary judgment only because there was no suggestion of perjury
or any evidence that undermined or contradicted his claims).
These issues directly challenge the existence of a genuine
dispute and make Mr. Lilly’s hostile work environment claim
“insufficiently meritorious to warrant the expense of a jury
trial.” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
The parties disagree as to the weight the Court should
assign to Mr. Lilly’s “self-serving testimony.” Compare Def.’s
Mot., ECF No. 45 at 13 (“A jury that credited [Mr. Lilly’s]
testimony in its entirety could not conclude that any of these
incidents continued to occur after May 1[5], 2013.”), and Def.’s
Reply, ECF No. 54 at 8 (“[Mr. Lilly’s] self-serving testimony,
at times relying on hearsay, is insufficient[.]”), with Pl.’s
Opp’n, ECF NO. 48-1 at 24 (“Plaintiff’s own testimony can be
enough to withstand [the District’s] summary judgment motion,
and it[ is] the jury, not the Court, that has to judge [Mr.
Lilly’s] credibility.”). To support his position, Mr. Lilly
points to the D.C. Circuit’s opinion in Desmond v. Mukasey, 530
F.3d 944 (D.C. Cir. 2008), where that court wrote that “there is
no rule of law that the testimony of a discrimination plaintiff,
33
standing alone, can never make out a case of discrimination that
could withstand a summary judgment motion.” Desmond, 530 F.3d at
964 (internal quotation marks omitted); see also Johnson v.
Perez, 823 F.3d 701, 710 (D.C. Cir. 2016) (“After all, evidence
a party proffers in support of its cause will usually, in some
sense, be ‘self-serving.’”).
While the Court credits the D.C. Circuit’s decision in
Desmond, the primary issue here is not that Mr. Lilly’s
deposition is “self-serving,” as the Court accepts as true his
“direct testimonial evidence” proffered in opposition to summary
judgment, see Greene, 164 F.3d at 674 (citing Anderson, 477 U.S.
at 255); Pierson, 821 F. Supp. 2d at 364; but rather that Mr.
Lilly has “fail[ed] to submit evidence that creates a genuine
factual dispute” for the time period in question, Musgrove, 775
F. Supp. 2d at 164. Apart from the Amended Complaint, which is
(1) not a consideration “beyond the pleadings,” see Celotex, 477
U.S. at 324; (2) not considered uncontroverted evidence, and (3)
factually inconsistent with record evidence, it becomes readily
apparent that the record, including Mr. Lilly’s deposition
testimony, is “woefully deficient” as to any specific instances
of alleged harassment or discrimination that occurred between
May 15, 2013 and May 21, 2013, see Fed. Home, 172 F. Supp. 2d at
104; Pl.’s Opp’n, ECF No. 48-1 at 23 (only generally alleging
that acts of harassment occurred after May 15, 2013). “By
34
pointing to [this] absence of evidence[,]” the District may
succeed on summary judgment as to Mr. Lilly’s hostile work
environment claim, see Pierson, 821 F. Supp. 2d at 364; as Mr.
Lilly has not adequately alleged “a systematic policy or
practice of discrimination,” nor a single timely incident
“sufficiently related” to any alleged untimely incidents forming
“the same unlawful employment practice[,]” see Morgan, 536 U.S.
at 107, 122; Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir.
2011) (requiring timely and untimely incidents to be “linked
into a coherent hostile environment claim”). As such, the Court
concludes that Mr. Lilly’s hostile work environment claim under
Title VII is time-barred, and furthermore that only alleged
discrete instances of discrimination or retaliation that
occurred on or after May 15, 2013 may proceed for further
analysis under Title VII. 12
12The Court declines to analyze, as unnecessary, the District’s
argument that Mr. Lilly’s deposition testimony was based on
inadmissible hearsay and should not be considered on summary
judgment. See Def.’s Reply, ECF No. 54 at 8-9. In addition, the
Court rejects the District’s broader exhaustion argument under
Title VII. See Def.’s Mot., ECF No. 45 at 12 n.5. The District
argues that Mr. Lilly’s March 2014 charge “did not raise
allegations of name-calling, derogatory comments, sexual
harassment, or most of the challenged employment actions that he
alleges in the Amended Complaint[,]” and contends that even if
he “could show the timeliness of his claims, most of his claims
should still be dismissed for failure to exhaust.” Id. However,
it is the District’s “burden to prove by a preponderance of the
evidence that [Mr. Lilly] failed to exhaust [his] administrative
remedies[,]” and “[m]eager, conclusory allegations that [he]
failed to exhaust his administrative remedies will not satisfy
35
2. DCHRA: Mr. Lilly’s Hostile Work Environment
Claim Is Time-Barred, Along with All Alleged
Discrete Discriminatory or Retaliatory Acts
Prior to June 16, 2013
The District also argues that Mr. Lilly’s DCHRA claims
based on alleged incidents prior to June 13, 2013 13 are time-
barred. See Def.’s Mot., ECF No. 45 at 14-15. The DCHRA requires
that “[a] private cause of action . . . be filed . . . within
one year of the unlawful discriminatory act, or the discovery
thereof[.]” D.C. Code § 2-1403.16. However, “[t]he timely filing
of a complaint with the [D.C. Office of Human Rights] . . .
shall toll the running of the statute of limitations while the
complaint is pending.” Craig, 881 F. Supp. 2d at 33 (quoting
D.C. Code § 2–1403.16(a)). Here, Mr. Lilly filed his Charge of
Discrimination on March 11, 2014 with the Alexandria Office of
Human Rights based on alleged violations of the DCHRA by
[that] burden.” Pierson v. Wash. Metro. Area Transit Auth., 821
F. Supp. 2d 360, 364 (D.D.C. 2011); see also Brown v. Marsh, 777
F.2d 8, 12 (D.C. Cir. 1985) (stating that the mere assertion of
failure to exhaust is “clearly inadequate under prevailing
regulations”). Here, the District has not made a “colorable
showing of non-exhaustion,” instead only making “meager
representations” that fail to allege specific facts “reasonably
establishing” non-exhaustion. Brown, 777 F.2d at 12-13; see
Def.’s Mot., ECF No. 45 at 12 n.5 (citing to Mr. Lilly’s charge
but not pointing to specific places in the Complaint that
deviate from the allegations raised in that charge). In fact,
the District does not allege specifics regarding exhaustion
until its Reply brief. See Def.’s Reply, ECF No. 54 at 10.
13 The District changes this date in its reply brief to March 11,
2013 but does not specifically address why. See Def.’s Reply,
ECF No. 54 at 4-7. The Court therefore proceeds with its own
calculations as to the timeliness of Mr. Lilly’s DCHRA claims.
36
“District government agencies, officials[,] or employees.” D.C.
Code § 2–1403.03(b); see Def.’s Ex. Y, ECF No. 45-3 at 279;
Def.’s SOF Reply, ECF No. 54-1 at 6 ¶ 40. His claim was
automatically cross-filed with the EEOC in D.C., “which suffices
to toll the one-year statute of limitations for DCHRA claims.”
See Craig, 881 F. Supp. 2d at 33; Ibrahim v. Unisys Corp., 582
F. Supp. 2d 41, 45 (D.D.C. 2008) (noting a “worksharing
agreement” between the D.C. Office of Human Rights and the
EEOC). On February 12, 2015, the EEOC denied Mr. Lilly’s claim
and issued his right-to-sue notice, and Mr. Lilly then filed
this lawsuit on May 16, 2015. See Compl., Ex. A, ECF No. 1-3 at
1. The DCHRA statute of limitations was thus tolled from March
11, 2014—the date Mr. Lilly filed his charge—until February 12,
2015—the date his complaint was no longer administratively
pending and the clock resumed running, i.e., a period of
approximately eleven months. See D.C. Code § 2–1403.16(a).
Under the DCHRA, Mr. Lilly alleges discrimination,
retaliation, and hostile work environment claims through his
retirement date of August 16, 2013. See Pl.’s Opp’n, ECF No. 48-
1 at 25 (arguing that his DCHRA “claims are timely because he
has stated a continuing violation from 2011 until the date of
his discharge”). First, as to discrete acts, the DCHRA makes it
clear that any claims arising more than one year before Mr.
Lilly filed his charge are time-barred and do not benefit from
37
any tolling of the statute of limitations. See D.C. Code § 2–
1403.16(a); Def.’s Reply, ECF No. 54 at 4. Subtracting 365 days
from March 11, 2014—the date Mr. Lilly filed his charge—brings
the Court to March 11, 2013, such that any discrete unlawful
acts that occurred prior to March 11, 2013 are time-barred. The
same is true for alleged discrete unlawful acts between March
11, 2013 and May 22, 2013—when Mr. Lilly was placed on
administrative leave—which, even accounting for the eleven-month
tolling period, are still beyond the DCHRA’s one-year statute of
limitations. Per the Court’s calculations, the cut-off date for
the timeliness of discrete unlawful acts under the DCHRA is June
16, 2013. 14 This is because there is 1 year, 11 months, and 1 day
between June 16, 2013 and Mr. Lilly’s civil action filing date
of May 16, 2015, and 11 months and 1 day was the exact time that
the DCHRA statute of limitations was tolled between March 11,
2014 and February 11, 2015 (the day before the clock resumed
running once the EEOC denied Mr. Lilly’s claim on February 12,
2015). Therefore, the Court concludes that any of Mr. Lilly’s
discrete discriminatory or retaliatory claims occurring prior to
June 16, 2013 are time-barred under the DCHRA.
14The government appears to have incorrectly calculated this
date as June 13, 2013. See Def.’s Mot., ECF No. 45 at 14.
38
Second, as to his DCHRA hostile work environment claim, 15 as
noted, Mr. Lilly was no longer a participant in MPD’s working
environment after he was placed on administrative leave on May
22, 2013, see Def.’s Ex. R, ECF No. 45-3 at 250; so any incident
contributing to “an ongoing pattern of discrimination” must have
occurred on or before May 21, 2013, see Pl.’s Opp’n, ECF No. 48-
1 at 26. However, as the Court just concluded, any incidents
occurring prior to June 16, 2013 are time-barred. Because more
than one year passed between any hostile act and the filing of
this action (minus the time tolled), the Court concludes that
Mr. Lilly’s hostile work environment claim under the DCHRA is
also time-barred. Therefore, only alleged discrete instances of
discrimination or retaliation that occurred on or after June 16,
2013 may proceed for further analysis under the DCHRA.
3. The District Has Not Waived a Timeliness or
Statute of Limitations Argument Under Title VII
or the DCHRA
Mr. Lilly urges the Court not to “entertain” the District’s
timeliness arguments under Title VII and the DCHRA because he
claims that this is the District’s “second bite at the apple” in
asserting such arguments. See Pl.’s Opp’n, ECF No. 48-1 at 25.
Specifically, Mr. Lilly contends that the District: (1) failed
15See supra note 11 (explaining that the different limitations
rules for discrete acts versus ongoing hostile work environment
claims under Title VII also apply to claims under the DCHRA).
39
to raise timeliness arguments in its Rule 12(b)(6) motion; and
(2) waived its right to a statute of limitations defense because
the District did not raise this defense in its initial Answer.
Id. Mr. Lilly points to Federal Rule of Civil Procedure 12(g)(2)
as the basis for his argument, claiming that the District’s
“belated untimeliness argument is barred by” that rule. Id.
Rule 12(g), in combination with Rule 12(h), “describe two
nonexhaustive ways in which” the Rule 12(b) defenses are waived.
Gilmore v. Palestinian Interim Self-Gov’t Auth., 8 F. Supp. 3d
9, 13 (D.D.C. 2014). Rule 12(g)(2) states that “a party that
makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion.”
Fed. R. Civ. P. 12(g)(2). Rule 12(h) provides that “[a] party
waives any defense listed in Rule 12(b)(2)-(5) by . . . omitting
it from a motion in the circumstances described in Rule
12(g)(2); or . . . failing to either: (i) make it by motion
under this rule; or (ii) include it in a responsive pleading[.]”
Fed. R. Civ. P. 12(h)(1). “The collective import of these two
provisions is that ‘[i]f a party files a Rule 12(b) motion to
dismiss, it may not subsequently assert any Rule 12(b) defenses
that were available when the first Rule 12(b) motion was
filed.’” Gilmore, 8 F. Supp. 3d at 13 (citation omitted); Pl.’s
40
Opp’n, ECF No. 48-1 at 25 (relying on Gilmore to advance Mr.
Lilly’s timeliness argument).
The Court concludes that Mr. Lilly’s argument based on
Rule 12(g)(2) is legally incorrect. First and foremost, that
rule pertains to Rule 12(b) defenses only, which do not include
any defenses pertaining to timeliness. See Fed. R. Civ. P.
12(b)(1)-(7). Instead, the statute of limitations, waiver, and
other time-related defenses are considered “affirmative
defenses” under Rule 8(c), which must be affirmatively raised in
a responsive pleading and not in a Rule 12 motion. See Fed. R.
Civ. P. 8(c)(1), 12(h). Second, even though the District filed
an earlier Rule 12(b)(6) motion to dismiss that did not raise
timeliness arguments, see Def.’s Mot. to Dismiss, ECF No. 13; it
is not now making another motion under Rule 12 that “rais[es] a
defense or objection that was available to [it] but omitted from
its earlier motion.” See Fed. R. Civ. P. 12(g)(2); Gilmore, 8 F.
Supp. 3d at 13 (applying Rule 12(g)(2)’s rule to a situation
where the defendants first moved to dismiss “[m]ore than a
decade ago” for lack of subject matter jurisdiction under Rule
12(b)(1) and then later moved to dismiss based on a lack of
personal jurisdiction under Rule 12(b)(2)). Instead of moving
again under Rule 12, the District is now moving for summary
judgment under Rule 56, and so the guidelines Mr. Lilly points
41
to under Rule 12(g)(2) are inapposite. 16 See Def.’s Reply, ECF
No. 54 at 7 (noting that in moving for summary judgment, the
District has presented evidence regarding the timeliness of Mr.
Lilly’s claims, which the Court finds appropriate at this stage
of the litigation); see also Fed. R. Civ. P. 56(b) (allowing a
party to move for summary judgment “at any time until [thirty]
days after the close of all discovery”).
The Court also rejects Mr. Lilly’s argument that the
District waived its right to a statute of limitations defense by
failing to raise it as an affirmative defense in its initial
Answer. See Pl.’s Opp’n, ECF No. 48-1 at 25. Not only does Mr.
Lilly not provide any caselaw to support this argument, but also
the Court settled this issue on October 26, 2020 by granting the
District’s motion requesting leave to amend its Answer to add
the statute of limitations as an affirmative defense. See Minute
Order (Oct. 26, 2020). Under that motion, Mr. Lilly also argued
that the District waived its statute of limitations defense
because it did not raise the argument in its Rule 12(b) motion
or its original Answer filed on October 12, 2016. Id. (citing
Pl.’s Opp’n to Def.’s Mot. for Leave to File First Am. Answer,
16The Court notes that the District uses the word “dismiss” when
arguing that Mr. Lilly’s claims should be deemed time barred.
See Def.’s Mot., ECF No. 45 at 12-15. However, the District’s
motion is not styled as a Rule 12(b) motion to dismiss but as a
Rule 56 motion for summary judgment. Thus, the Court does not
assign weight to this choice of language.
42
ECF No. 64 at 3-4). The Court rejected that argument, applying
Rule 15(a)’s “generous standard” to “freely give leave” to the
District to amend its Answer. Id. (citing Fed. R. Civ. P.
15(a)(2)). The Court also noted that the District “raised
statute of limitations arguments in its motion for summary
judgment based on the discovery produced” and that “adding this
defense [did] not change the theory of the case, but is
consistent with discovery already provided[,]” and also did not
cause undue prejudice to Mr. Lilly. Id. The District thereafter
timely filed its Amended Answer on October 27, 2020, writing
that Mr. Lilly’s claims “are barred, in whole or in part, by the
applicable statute of limitations.” Def.’s Am. Answer, ECF No.
67 at 15. This added affirmative defense, along with the
District’s previously raised defense that Mr. Lilly “failed to
exhaust his administrative remedies and/or failed to comply with
other mandatory filing requirements[,]” operate to negate Mr.
Lilly’s present argument that the District waived a statute of
limitations defense under Title VII and the DCHRA. Id. at 14;
see Def.’s Reply, ECF No. 54 at 4-5.
Because both Title VII and the DCHRA require the filing of
charges of discrimination within a certain time period following
the alleged unlawful incidents, Mr. Lilly cannot expect to be
“waived into court” by bypassing the timely exhaustion
requirements that these laws impose. See Kizas v. Webster, 707
43
F.2d 524, 544-46 (D.C. Cir. 1983) (labeling Title VII’s
statutory requirements “part and parcel of the congressional
design” for complaints to initiate at the agency level rather
than mere “technicalit[ies]”). As such, the Court reiterates its
prior conclusions that: (1) Mr. Lilly’s hostile work environment
claim is barred under Title VII and the DCHRA; 17 (2) Mr. Lilly’s
allegations of discrete discriminatory or retaliatory acts prior
to May 15, 2013 are barred under Title VII; and (3) Mr. Lilly’s
allegations of discrete discriminatory or retaliatory acts prior
to June 16, 2013 are barred under the DCHRA.
B. Mr. Lilly Has Failed to Produce Sufficient Evidence
from Which a Reasonable Jury Could Conclude that the
District’s Stated Reasons for the Alleged
Discriminatory or Retaliatory Acts Are Pretextual
Mr. Lilly’s remaining claims involve a mix of discrete
discriminatory and retaliatory acts under Title VII and the
DCHRA, including allegations “that he was subject to unwarranted
17Both parties proffer arguments regarding whether the District
can be liable via a hostile work environment theory under Title
VII and the DCHRA for the alleged sexual harassment by Officers
Pinto and Clifford. Compare Def.’s Mot., ECF No. 45 at 15-17
(“Even if [Mr. Lilly’s] claims of sexual harassment against two
of his co-workers were not procedurally barred, the Court should
grant summary judgment because their alleged misconduct cannot
be imputed to the District.”), with Pl.’s Opp’n, ECF No. 48-1 at
26-29 (claiming that Mr. Lilly “reported the sexual harassment
by Officers Pinto and Clifford” but that “the District failed to
implement prompt and corrective action” and can be held liable
for this failure). The Court does not consider the merits of
these arguments since it has concluded that Mr. Lilly’s hostile
work environment claim, which includes these sexual harassment
allegations, is time barred under Title VII and the DCHRA.
44
investigations, excessive discipline, and forced to retire
because of his sexual orientation, gender, or in retaliation for
complaints he made about discrimination.” Def.’s Mot., ECF No.
45 at 17. As discussed, to establish a discrimination claim, Mr.
Lilly must allege that he was subject to an adverse action based
on his gender and/or sexual orientation. See Carter-Frost, 305
F. Supp. 3d at 67; Brady, 520 F.3d at 493. Similarly, to prove
retaliation, Mr. Lilly must show that he engaged in a protected
activity and that he suffered a materially adverse action by MPD
as a causal result of having engaged in that activity. See
Carter-Frost, 305 F. Supp. 3d at 73; Dieng, 412 F. Supp. 3d at
8. “The D.C. Circuit, however, has instructed that when
considering a motion for summary judgment in an employment
discrimination [or retaliation] case, a distinct court need not
consider whether a plaintiff has actually satisfied the elements
of a prima facie case if the defendant has offered a legitimate,
non-discriminatory reason for its actions.” Musgrove, 775 F.
Supp. 2d at 169 (citing Brady, 520 F.3d at 494).
A legitimate, non-discriminatory reason is a “clear and
reasonably specific” explanation for the employer’s actions,
i.e., “simply explain[ing] what [it] has done or produc[ing]
evidence of [those] legitimate nondiscriminatory reasons.”
Burdine, 450 U.S. at 256-58 (internal quotation marks omitted).
“[I]n all instances where a defendant has asserted a legitimate,
45
non-discriminatory reason for its conduct, the Court shall
evaluate all of the evidence in the record” when assessing the
legitimacy of that reason. Washington v. Chao, 577 F. Supp. 2d
27, 39 (D.D.C. 2008). Under the Court’s evaluation of an
discrimination claim on summary judgment, the “inquiry collapses
into a single question: ‘[h]as 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?’” Id. (quoting Brady, 520 F.3d at 494). Likewise, under
the Court’s assessment of a retaliation claim on summary
judgment, the “central question” reduces to whether the employee
has “produced sufficient evidence for a reasonable jury to find
that the employer’s asserted . . . non-retaliatory reason was
not the actual reason [for its adverse action] and that the
employer intentionally . . . retaliated against the employee.”
Walker, 798 F.3d at 1092. Upon the articulation of a legitimate
reason for the alleged discriminatory or retaliatory adverse
action, the burden shifts back to the plaintiff to rebut the
defendant’s stated reason as pretextual. See Musgrove, 775 F.
Supp. 2d at 170. The plaintiff can “carry this burden by showing
that a non-discriminatory reason offered by [the] defendant is
false,” id. (citing Montgomery v. Chao, 546 F.3d 703, 707 (D.C.
46
Cir. 2008)); or by “presenting enough evidence to allow a
reasonable trier of fact to conclude that the employer’s
proffered explanation is unworthy of credence[,]” id. (quoting
Desmond, 530 F.3d at 962).
Here, the parties disagree as to whether the District has
stated legitimate, non-discriminatory reasons for five of its
actions: (1) Mr. Lilly’s disability retirement; (2) Mr. Lilly’s
five-day suspension following his receipt of several AWOL
citations; (3) IAB’s investigation into Mr. Lilly’s encounter
with U.S. Park Police and his subsequent citation for corrective
action in the form of an official reprimand; (4) IAB’s
investigation into MPD’s receipt of an anonymous complaint
regarding Mr. Lilly’s conduct as an officer; and (5) IAB’s
investigation into whether Mr. Lilly provided false information
in his MPD recruitment package. 18 Compare Def.’s Mot., ECF No. 45
at 18-22, and Def.’s Reply, ECF No. 54 at 12-15, with Pl.’s
Opp’n, ECF No. 48-1 at 30-39. For the reasons discussed below,
the Court concludes that, for all five actions, a reasonable
jury could find that the District has satisfied its burden to
18The District proffered a reason for Mr. Lilly’s receipt of a
fine following his retirement—that he did not serve a fifteen-
day suspension prior to retiring. See Def.’s Mot., ECF No. 45 at
22 (citing Def.’s Ex. V, ECF No. 45-3 at 269). Mr. Lilly replies
that he did not “cite[] this fine as evidence of the District’s
discriminatory conduct.” Pl.’s Opp’n, ECF No. 48-1 at 39. The
Court therefore does not consider this fine in its analysis.
47
articulate legitimate, non-discriminatory reasons that Mr. Lilly
has not shown are pretextual. Because the District has “done
everything that would be required of [it,]” it is entitled to
summary judgment as to Mr. Lilly’s remaining discrimination and
retaliation claims. Brady, 520 F.3d at 494.
1. Mr. Lilly’s Disability Retirement
The District argues that it had a legitimate, non-
discriminatory reason for Mr. Lilly’s disability retirement,
specifically that his retirement was ordered by the PFRRB for
the reasons set forth in the PFC’s April 19, 2013 report. See
Def.’s Mot., ECF No. 45 at 18; Def.’s Ex. D, ECF No. 45-3 at 69.
That report noted that Mr. Lilly was on limited duty status
since September 2012 “following deterioration in his work
performance and emotional stability after an exposure to
bedbugs.” Def.’s Ex. D, ECF No. 45-3 at 74. The report reviewed
Mr. Lilly’s medical and mental health records to conclude that
he “continue[d] to struggle with symptoms of a mood disorder,
specifically depression and anxiety with obsessive features to a
degree that [could] adversely impact his ability to perform the
requirements of the job.” Id. at 69, 74. The report also
concluded that Mr. Lilly presented “with symptoms of depression,
anxiety, and behavioral disinhibition which disable[d] his
insight and capacity to function as a police officer[,]” and it
recommended retirement pursuant to D.C. Code §§ 5-633, 5-634,
48
and 5-710. Id. at 74-75. That the report made these findings is
an undisputed fact. See Def.’s SOF Reply, ECF No. 54-1 at 5 ¶¶
29-31. The District states that in August 2013, the PFRRB
ordered Mr. Lilly’s retirement after determining that he “was
incapacitated from further duty by reason of a disability
incurred in the performance of duty[.]” See Def.’s Mot., ECF No.
45 at 19; Def.’s Ex. W, ECF No. 45-3 at 271; Def.’s Ex. X, ECF
No. 45-3 at 275; Def.’s SOF Reply, ECF No. 54-1 at 6 ¶¶ 38-39.
Having asserted a legitimate, non-discriminatory, and non-
retaliatory reason for his disability retirement, the burden
shifts back to Mr. Lilly to demonstrate that the District’s
“stated reasons were pretextual, and the real reasons were
prohibited discrimination [on the basis of his gender or sexual
orientation] or retaliation[.]” Walker, 798 F.3d at 1092. In an
attempt to meet his burden, MR. Lilly argues that: (1) the
District’s “face value reliance” on the PFC’s report is “unwise”
because that report relied primarily on “a six-month old duty
evaluation and a six-page [psychiatric] questionnaire” that led
to “a lack of quality in the District’s investigation[,]” and
(2) that he “was able and willing to work in any less-than-full-
duty capacity within [MPD], [and] he should have never been
processed for involuntary retirement under D.C. Code [ ] § 5-
710” per other sections of the D.C. Code, specifically §§ 5-
633(h)(3)(A)-(B) and 5-634. Pl.’s Opp’n, ECF No. 48-1 at 30-32.
49
Even drawing all inferences in Mr. Lilly’s favor, the Court
is not persuaded that this evidence could convince a reasonable
jury to conclude that the District’s stated reasons for his
retirement were false and instead based on intentional gender
and/or sexual orientation discrimination. Even if the PFC report
relied heavily on “unfair” sources, see Pl.’s Opp’n, ECF No. 48-
1 at 30-31; Mr. Lilly points to “no evidence in [the] record
that Dr. Morote took [his] sexual orientation [or gender] into
account when she made her recommendation” that Mr. Lilly’s
mental health diagnoses adversely impacted his ability to
function as an MPD officer, see Def.’s Reply, ECF No. 54 at 12.
Nor is there any evidence that the PFRRB considered Mr. Lilly’s
gender or sexual orientation before ordering his retirement.
Instead, following the issuance of the PFC’s report, the PFRRB
held a hearing on July 18, 2013 to review the evidentiary
material and hear testimony from Mr. Lilly and Dr. Morote before
reaching a reasoned conclusion as to his disability retirement.
See Pl.’s Ex. A, ECF No. 48-3 at 12; Def.’s Ex. BB, ECF No. 45-3
at 291-93. Mr. Lilly has also not otherwise presented “evidence
substantiated by the record[,]” Burton v. Dist. of Columbia, 153
F. Supp. 3d 13, 67 (D.D.C. 2015); that the District treated
similarly situated heterosexual officers more favorably than him
in the same factual circumstances, see Carter-Frost, 305 F.
Supp. 3d at 72 (quoting Brady, 520 F.3d at 495); or that the
50
District has a pattern of treating poorly officers in the same
protected group as him, see Walker, 798 F.3d at 1092 (citing
Brady, 520 F.3d at 495 n.3). 19 Nor does he establish that the
District deviated “from established procedures or criteria,”
id.; since the D.C. Code sections that Mr. Lilly cites are
inapposite, as they pertain to MPD officers “who sustained, in
the performance of duty, any serious or life-threatening injury
or illness for which [they] require[d] critical care treatment
in a hospital intensive care unit or its equivalent,” which is
not applicable to Mr. Lilly, see D.C. Code § 5-633(h)(1)-(3).
Neither is the Court persuaded that Mr. Lilly’s evidence
could convince a reasonable jury to conclude that the District’s
stated reason for his retirement was based on retaliation.
Temporal proximity between an employee’s protected activity and
an employer’s adverse action “is a common and often probative
form of evidence of retaliation.” Walker, 798 F.3d at 1092
(citing Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009)).
Yet, Mr. Lilly does not direct the Court’s attention to any
record evidence indicating that the PFRRB’s decision followed
19Mr. Lilly attempted to make “similarly situated” comparisons
between himself and fellow officers in his Amended Complaint.
See Am. Compl., ECF No. 9 at 8 ¶¶ 39-40, 10 ¶ 48, 16 ¶ 78. Yet,
he never goes “beyond the pleadings” to support these claims
with “evidence substantiated by the record.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986); Burton v.
Dist. of Columbia, 153 F. Supp. 3d 13, 67 (D.D.C. 2015).
51
any protected activity closely in time. And even if he had, at
the summary judgment stage, “positive evidence beyond mere
proximity is required to defeat” the District’s stated reason
for his retirement. See Kurtiev v. Shell, No. 15-cv-1839, 2020
WL 2838523, at *11 (D.D.C. June 1, 2020) (quoting Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007)).
For these reasons, the Court concludes that Mr. Lilly has
failed to provide evidence from which “a reasonable jury could
not only disbelieve the [District’s] reasons, but conclude that
the real reason” for his disability retirement “was a prohibited
one.” Walker, 798 F.3d at 1093.
2. Mr. Lilly’s Five-Day Suspension Following
Several AWOL Citations
The District also argues that it had legitimate, non-
discriminatory reasons for citing Mr. Lilly for being AWOL on
January 26, 2013; January 30, 2013; and April 18, 2013 because
“he was, in fact, absent without leave.” Def.’s Mot., ECF No. 45
at 19. The record supports it being undisputed that Mr. Lilly
was AWOL on those three dates. See Def.’s Ex. J, ECF No. 45-3 at
190-91 (citing Mr. Lilly for being AWOL for eight hours on
January 26, 2013 when he took prescription medication and
overslept, causing him to not report for work that day); Def.’s
Ex. K, ECF No. 45-3 at 197, 200-03 (citing Mr. Lilly for being
AWOL for five hours and fifteen minutes on January 30, 2013 when
52
he admittedly overslept and for making false statements to his
superior officers about it); Def.’s Ex. O, ECF No. 45-3 at 241-
43 (citing Mr. Lilly for being AWOL for five and a half hours on
April 18, 2013 and for making false statements to his superior
officers about it); see also Def.’s SOF Reply, ECF No. 54-1 at 3
¶¶ 14-17, 4 ¶ 24. Because of these AWOL incidents, the District
states that it had legitimate, non-discriminatory reasons for
disciplining Mr. Lilly and on May 15, 2013, imposing a five-day
suspension, to be held in abeyance for one year. See Def.’s
Mot., ECF No. 45 at 19; Def.’s Ex. S, ECF No. 45-3 at 252-55
(attaching a copy of the “Commander’s Resolution Conference
Worksheet,” which calculated Mr. Lilly’s suspension to be five
days, “with all [five] held in abeyance for [twelve] months”).
The Court concludes that the District has articulated
legitimate, non-discriminatory reasons for Mr. Lilly’s AWOL
citations and five-day suspension, specifically that he was AWOL
on the relevant dates. While Mr. Lilly does not dispute “the
fact that he was charged with being AWOL,” he attempts to
establish pretext for the District’s actions by “disput[ing] the
motive and circumstances behind” MPD’s formal investigations
into his three 2013 AWOL incidents. See Pl.’s Opp’n, ECF No. 48-
1 at 33-34. To do so, Mr. Lilly proffers three Notifications of
Tardiness and one AWOL notice from 2011 to 2012 and argues that
“none of these instances triggered an investigation to the
53
magnitude seen from January 2013 through Ma[]y 2013.” Id. at 33;
see also Pl.’s Ex. L, ECF No. 48-3 at 285 (placing Mr. Lilly in
LWOP status for one hour due to his tardiness on February 11,
2011); Pl.’s Ex. M, ECF No. 48-3 at 287 (placing Mr. Lilly in
LWOP status for two hours due to his tardiness on September 29,
2012); Pl.’s Ex. N, ECF No. 48-3 at 289 (placing Mr. Lilly in
LWOP status for two hours due to his tardiness on November 3,
2012); Pl.’s Ex. O, ECF No. 48-3 at 291 (placing Mr. Lilly in
AWOL status due to his six-hour absence on November 20, 2012).
Mr. Lilly contends that after filing his complaint with Sergeant
Carlos Mejia and MPD’s EEO Compliance Branch on January 13,
2013, see Def.’s Ex. H, ECF No. 45-3 at 122-24; Def.’s Ex. I,
ECF No. 45-3 at 126-85 (attaching the EEO Compliance Branch’s
final report as to Mr. Lilly’s allegations); he was retaliated
against with “increased scrutiny” and formal investigations into
each of his 2013 AWOL incidents, see Pl.’s Opp’n, ECF No. 48-1
at 33-34. Mr. Lilly claims that “[t]he dichotomy between the
dissected investigations of [him] from January 2013 through May
2013 and the laissez-faire one-page notices received by [him]
from February 2011 through November 2012” indicate pretext. Id.
at 34.
The Court concludes that Mr. Lilly has not “put forward
enough evidence to defeat the proffer and support a finding of
retaliation” for filing a complaint with MPD’s EEO Compliance
54
Branch in relation to his AWOL citations and five-day
suspension, Woodruff, 482 F.3d at 530; as “imposing disciplinary
measures [is] legitimate[ly] [ ] warranted after a policy
infraction[,]” see Carter-Frost, 305 F. Supp. 3d at 71-74
(rejecting the plaintiff’s pretext argument and finding that her
“involuntary detail to the Fifth District” as a result of
violating MPD policy, or “‘corrective action’ for her
infraction,” was a legitimate, non-discriminatory action);
Baloch, 550 F.3d at 1200 (finding it legitimate that an employer
took adverse action because the “disciplinary measures . . .
occurred only after various infractions” and therefore, “[g]ood
institutional administration” justified discipline). Indeed, Mr.
Lilly “concedes the infractions that formed the basis for” MPD’s
responses, Baloch, 550 F.3d at 1200; and admitted to being tardy
and AWOL in all the above incidents (three notices of tardiness
and four citations for being AWOL, totaling seven disciplinary
incidents between 2011 and 2013), see Pl.’s Opp’n, ECF No. 48-1
at 33; Def.’s SOF Reply, ECF No. 54-1 at 3 ¶¶ 14-17, 4 ¶ 24, 7
¶¶ 41-44. As such, the Court concludes that Mr. Lilly has not
produced evidence, apart from “unsupported conjecture,” Def.’s
Reply. ECF No. 54 at 13; to prove that the District’s asserted
reasons for its challenged disciplinary actions “were so ill-
justified as to allow a jury to conclude that they were not the
55
actual reasons and that he suffered retaliation for his
discrimination complaints[,]” Baloch, 550 F.3d at 1200.
3. IAB’s Three Internal Affairs Investigations into
Mr. Lilly’s Conduct
Finally, the District argues that it had legitimate, non-
discriminatory reasons for conducting “investigations into
allegations of misconduct against [Mr. Lilly] during the months
leading up to his retirement.” Def.’s Mot., ECF No. 45 at 19-20.
The District proffers explanations for three investigations,
alleging that “each investigation was based on a legitimate
inquiry into whether [Mr. Lilly] violated MPD policies.” Id. at
20-22. Mr. Lilly counters that the District’s reasons “are
littered with inconsistencies, contradictions, and deviation[s]
from policy.” Pl.’s Opp’n, ECF No. 48-1 at 29. These three IAB
investigations are addressed in turn below.
a. IAB’s Investigation into Mr. Lilly’s
Encounter with U.S. Park Police and His
Subsequent Citation for Corrective Action in
the Form of an Official Reprimand
First, the District states that IAB opened an investigation
into whether Mr. Lilly committed misconduct during an encounter
with two U.S. Park Police officers after one of those officers
reported the incident to MPD. See Def.’s Mot., ECF No. 45 at 20;
Def.’s Ex. M, ECF No. 45-3 at 209, 215. The undisputed facts and
record evidence indicate that on April 11, 2013, the U.S. Park
Police contacted MPD after they encountered Mr. Lilly walking
56
near a ravine on the shoulder of the George Washington Memorial
Parkway. See Def.’s Ex. M, ECF No. 45-3 at 209, 214-15; Def.’s
SOF Reply, ECF No. 54-1 at 3-4 ¶ 19. When questioned by the
officers, Mr. Lilly identified himself as an MPD officer and
displayed a duplicate copy of his MPD badge, despite his police
powers having been previously revoked in September 2012. See
Def.’s Ex. F, ECF No. 45-3 at 90; Def.’s Ex. M, ECF No. 45-3 at
215; Def.’s SOF Reply, ECF No. 54-1 at 4 ¶ 20. Following the
encounter, the U.S. Park Police sent MPD 4D a copy of the
incident report. See Def.’s Ex. M, ECF No. 45-3 at 215.
Afterwards, IAB opened an investigation and issued its final
investigative report on May 22, 2013, recommending that Mr.
Lilly be cited for corrective action in the form of an official
reprimand “for violating General Order 120.21, Attachment A,
Part A, 25,” which governs “[a]ny conduct not specifically set
forth in this order, which is prejudicial to the reputation and
good order of the police force[.]” Id. at 209, 215. IAD
concluded that by displaying his spare MPD badge while his
police powers were revoked, Mr. Lilly had engaged in conduct
that was “prejudicial to the reputation and good order of the
police force” and “detrimental” to MPD. Id. at 215.
In discussing the District’s reason for this investigation,
the parties focus on facts that paint a different picture of Mr.
Lilly’s behavior on the date in question. Compare Def.’s Mot.,
57
ECF No. 45 at 20 (noting that Mr. Lilly was “wearing unusual
attire including a belt of fake ammunition” and “was talking in
circles”), with Pl.’s Opp’n, ECF No. 48-1 at 35 (describing Mr.
Lilly’s demeanor on the scene as “polite, cooperative,
professional and not rude or demanding”). Regardless of how the
facts are characterized, the Court concludes that the District
has stated a legitimate, non-discriminatory reason for this
investigation. The undisputed facts indicate that the U.S. Park
Police, an independent federal agency, contacted MPD during the
incident to verify Mr. Lilly’s identity as an MPD officer after
he displayed his spare badge to the officers, and that following
this encounter, the U.S. Park Police shared its incident report
with MPD 4D. See Def.’s SOF Reply, ECF No. 54-1 at 3-4 ¶ 19;
Def.’s Ex. M, ECF No. 45-3 at 215. After being informed of this
off-duty incident, the District initiated its investigation, and
while Mr. Lilly claims that the “true reason” for the
investigation “was because [he] looked too ‘gay’ to be an
office[r,]” Pl.’s Opp’n, ECF No. 48-1 at 36; “there is no basis
in the record to believe that the investigation was unfounded or
initiated for pretextual reasons[,]” Carter-Frost, 305 F. Supp.
3d at 71. Mr. Lilly attempts to establish pretext by claiming
that the Park Police officers’ reports and statements focused on
his appearance and that he was dressed in a manner “not normally
associate[d] with a police officer,” based on his clothing,
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makeup, and nail attire. See Pl.’s Opp’n, ECF No. 48-1 at 34-35.
However, none of these details establish that IAB, or even the
Park Police, investigated Mr. Lilly because of his gender or
sexual orientation. See id. at 35 (admitting that “[n]othing in
the witness statements indicate[s] why [the Park Police]
reported [him] to the 4th District”). Nor does Mr. Lilly adduce
evidence that other heterosexual MPD officers who were involved
in off-duty incidents were treated more favorably and not
similarly investigated. See Carter-Frost, 305 F. Supp. 3d at 71-
72; Walker, 798 F.3d at 1092 (citing an “employer’s better
treatment of similarly situated employees outside the
plaintiff’s protected group” as a way to establish pretext).
Moreover, the undisputed facts indicate that Mr. Lilly
admitted to displaying his spare MPD badge while his police
powers were revoked. Def.’s SOF Reply, ECF No. 54-1 at 4 ¶ 20;
Def.’s Ex. M, ECF No. 45-3 at 215. Although not conduct
“specifically outlined in [MPD’s] orders or directives,” MPD
maintains a General Order prohibiting prejudicial conduct to the
police force, and IAB concluded that Mr. Lilly violated this
General Order with his “detrimental” conduct and cited him with
an official reprimand as a result. See Def.’s Ex. M, ECF No. 45-
3 at 215. Assuming this was an adverse action, the Court has
already noted that imposing disciplinary measures is a
legitimate course of action following misconduct that violates
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an employer’s policies. See Carter-Frost, 305 F. Supp. 3d at 71.
Furthermore, to the extent Mr. Lilly attempts to demonstrate
discrimination and/or retaliation based on temporal proximity
between this IAB investigation and “the middle of” MPD’s EEO
Compliance Branch investigation, the Court rejects that
argument, as it was Mr. Lilly himself who initiated the incident
with the Park Police on April 11, 2013. See Pl.’s Opp’n, ECF No.
48-1 at 35-36. Therefore, having received no competent evidence
that the District’s stated explanation is unworthy of credence,
the Court concludes that Mr. Lilly has failed to carry his
burden of persuasion on this issue. See Musgrove, 775 F. Supp.
2d at 171.
b. IAB’s Investigation into MPD’s Receipt of an
Anonymous Complaint Regarding Mr. Lilly’s
Conduct as an Officer
The District next states that IAB opened an investigation
into Mr. Lilly’s conduct as an officer because on January 7,
2013, it received an anonymous complaint that he had “conducted
himself in a manner that was unbecoming” of an MPD officer. See
Def.’s Mot., ECF No. 45 at 21; Def.’s Ex. N, ECF No. 45-3 at
225. The complaint alleged that Mr. Lilly had posted
inappropriate YouTube videos and that he was mentally ill. See
Def.’s Ex. N, ECF No. 45-3 at 225. On January 13, 2013, the case
was assigned to an IAD detective, who began the investigation.
Id. at 226. The investigation concluded with IAB’s April 17,
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2013 final investigative report, in which IAB found that Mr.
Lilly had exercised his First Amendment rights in the YouTube
videos and therefore recommended closing the investigation due
to “insufficient facts.” Id. at 234. IAB thereafter forwarded
the anonymous allegation regarding Mr. Lilly’s mental status to
MPD’s PFC for review because it was not equipped to assess his
mental condition. Id. at 235. Having received a complaint from a
third-party regarding Mr. Lilly’s conduct as an MPD officer, the
District has proffered legitimate, non-discriminatory reasons
for opening this investigation, and the burden shifts back to
Mr. Lilly to demonstrate that these stated reasons were
pretextual, “and the real reasons were prohibited discrimination
or retaliation[.]” Walker, 798 F.3d at 1092.
To meet this burden, Mr. Lilly argues that discrimination
and retaliation are proven based on the way IAB conducted its
investigation, which he claims was contrary to the procedure
outlined in MPD’s General Order for Processing Citizen
Complaints. See Pl.’s Opp’n, ECF No. 48-1 at 36-38; Pl.’s Ex. J,
ECF No. 48-3 at 239-58. Yet, the record evidence indicates that
MPD’s policy “is to accept all citizen complaints, to include
anonymous complaints[.]” Pl.’s Ex. J, ECF No. 48-3 at 240. That
IAB’s investigation may have deviated slightly from the outlined
procedure (i.e., as Mr. Lilly claims, taking more than three
business days to contact the complainant), see id. at 246; Pl.’s
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Opp’n, ECF No. 48-1 at 37; does not give rise to any inference
of discrimination or retaliation, either in the initiation of
the investigation or in the way it was conducted, see Baloch,
550 F.3d at 1201. Neither does Mr. Lilly benefit from a temporal
proximity argument, as MPD received the anonymous complaint
before he reported the locker incident to Sergeant Carlos Mejia
on January 13, 2013. See Def.’s Ex. N, ECF No. 45-3 at 225;
Def.’s Ex. H, ECF No. 45-3 at 122. And, the IAB investigation
cleared Mr. Lilly of misconduct following his reporting of the
locker incident, thus negating any inference of discrimination
or retaliation. See Def.’s Ex. N, ECF No. 45-3 at 234.
Regardless, the Court does not conclude that this
investigation resulted in any adverse action against Mr. Lilly.
Generally, “the ‘mere initiation’ of an investigation may not
constitute a materially adverse action[.]” King v. Holder, 77 F.
Supp. 3d 146, 151 (D.D.C. 2015) (citing Ware v. Billington, 344
F. Supp. 2d 63, 76 (D.D.C. 2004)). And an investigation is not
usually considered adverse unless it results in “materially
adverse consequences affecting the terms, conditions, or
privileges of” a plaintiff’s employment or future employment
opportunities. Id. at 151-52 (citation omitted). Here, no such
adverse consequences emerged, as Mr. Lilly admits he was not
disciplined following the conclusion of IAB’s investigation.
Pl.’s Opp’n, ECF No. 48-1 at 36. Without the requisite adverse
62
action, no reasonable jury could conclude that Mr. Lilly
established discrimination or retaliation under Title VII or the
DCHRA for this claim.
c. IAB’s Investigation into Whether Mr. Lilly
Provided False Information in His MPD
Recruitment Package
Finally, the District states that IAB conducted an
investigation from June 19, 2013 to August 8, 2013 to determine
whether Mr. Lilly “provided false information in his drug use
and medical history statement for his recruitment package.”
Def.’s Mot., ECF No. 45 at 21. The District states that IAB
opened this investigation following MPD PFC’s receipt of a
letter from Dr. Walker Lyerly, Mr. Lilly’s personal psychiatrist
for the past sixteen years, containing information regarding his
medical status that conflicted with his recruitment package. Id.
at 21-22. On August 8, 2013, IAB issued its final investigative
report, concluding that Mr. Lilly intentionally lied during the
recruitment process regarding his medical and mental health
history. See Def.’s Ex. T, ECF No. 45-3 at 258-62.
The District has provided legitimate, non-discriminatory
reasons for conducting this third IAB investigation into Mr.
Lilly’s conduct, and the Court does not conclude that the
evidence is such to make a reasonable jury disbelieve these
reasons or conclude that the real reasons for the investigation
were discrimination or retaliation. See Walker, 798 F.3d at
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1092-93. Mr. Lilly claims that the District used this
investigation to “cover up [its] true, longstanding motivations
for penalizing” him but does not cite anything from the record
to support this statement. See Pl.’s Opp’n, ECF No. 48-1 at 39.
While this investigation concluded the day before the PFRRB
issued Mr. Lilly’s interim retirement order, it began because of
information received from a third-party and occurred long after
Mr. Lilly’s three instances of internal reporting (October 29,
2012; January 13, 2013; and April 18, 2013), thereby negating
inferences of retaliation or discrimination. Thus, even drawing
all inferences in Mr. Lilly’s favor and assuming as true the
PFC’s awareness of Mr. Lilly’s treatment by Dr. Lyerly from the
age of thirteen, a reasonable jury would not believe that IAB—a
separate MPD entity from the PFC—had any legitimate reason to
open an investigation or access Mr. Lilly’s PFC medical records
until receipt of Dr. Lyerly’s letter. As such, the Court
concludes that Mr. Lilly has failed to provide enough evidence
to rebut the District’s stated reasons for this IAB
investigation.
V. Conclusion
Drawing every justifiable inference in Mr. Lilly’s favor,
as the Court must, it finds no basis under Title VII or the
DCHRA upon which a reasonable factfinder could conclude that the
District had discriminatory intent based on his gender and/or
64
sexual orientation, or was retaliating against him for taking
part in a protected activity. Accordingly, the District’s Motion
for Summary Judgment, ECF No. 45, is GRANTED. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
February 21, 2023
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