Miles v. University of the District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CANDICE MILES, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-378 (RBW)
)
HOWARD UNIVERSITY,1 )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
The plaintiff, Candice Miles, filed this civil action against defendant Howard University
(“Howard”), alleging violations of the federal Family and Medical Leave Act (“FMLA”), 29
U.S.C. §§ 2611-19 (2012), the District of Columbia Family and Medical Leave Act
(“DCFMLA”), D.C. Code §§ 32-501 to -517 (2001), Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e to e-17 (2012), and the District of Columbia Human Rights
Act (“DCHRA”), D.C. Code §§ 2-1401.01 to -1431.08 (2001). Amended Complaint (“Compl.”)
¶¶ 116-59. Currently before the Court is Howard’s motion for summary judgment. Defendant
Howard University’s Motion for Summary Judgment (“Def.’s Summ. J. Mot.”). For the reasons
explained below, the Court must grant Howard’s motion.2
1
The plaintiff initially named the University of the District of Columbia as a defendant in this case, but has since
dismissed all claims against that former defendant. July 16, 2014 Minute Order.
2
In deciding Howard’s summary judgment motion, the Court considered the following filings made by the parties in
addition to those already identified: (1) Defendant Howard University’s Memorandum of Law in Support of Its
Motion for Summary Judgment (“Def.’s Summ. J. Mem.”); (2) Defendant Howard University’s Statement of
Material Undisputed Facts in Support of Motion for Summary Judgment (“Def.’s Summ. J. Facts”); (3) Plaintiff
Candice Miles’ Opposition to Defendant Howard University’s Motion for Summary Judgment (“Pl.’s Opp’n”); (4)
Plaintiff Candice Miles’ Statement of Material Facts in Dispute in Support of Motion for Summary Judgment (“Pl.’s
Summ. J. Facts”); (5) Defendant Howard University’s Reply Memorandum in Further Support of its Motion for
Summary Judgment (“Def.’s Reply”); and (6) Defendant Howard University’s Reply to Plaintiff Candice Miles’
Statement of Material Facts in Dispute (“Def.’s Reply Facts”).
I. BACKGROUND
A. The District Of Columbia Small Business Network And The Plaintiff’s
Employment
“During all . . . periods [of time relevant to this case],” the United States Small Business
Administration (“Small Business Administration”) has annually “awarded Howard a grant to run
. . . [the District of Columbia] Small Business Development Center” Network (“Small Business
Network”). Pl.’s Summ. J. Facts ¶ 1. Under that grant, Howard manages the “Lead Center” and
“award[s] annual subcontracts to individual non-profit organizations” throughout the District of
Columbia that are required to host “Service Centers,” which “provide small-business
development services” to third parties. Id. ¶ 2. These Service Centers comprise the Small
Business Network. See id. ¶ 14. One of these non-profit organizations was the University of the
District of Columbia School of Business (“UDC”). Id.
“In late 2008,” the Dean of UDC, Charlie Mahone, formed a “Search Committee” to hire
“a new Director of the UDC Service Center.” Id. ¶¶ 20-21. Although Dean Mahone was “not
required” to do so, he “invited” Henry Turner, the Executive Director of the Howard Lead
Center at the time, “to serve on the Search Committee.” Id. ¶¶ 4, 21. One candidate who
“applied for the position of Service Center Director at UDC” was the plaintiff. Id. ¶ 20. Despite
Mr. Turner’s “reservations about hiring” the plaintiff for the position, she was “nonetheless hired
after Dean Mahone agreed that he would mentor [the plaintiff] in the position.” Id. ¶ 22 (internal
quotation marks omitted).
The plaintiff began serving as the Director of the UDC Service Center in January 2009.
Id. ¶ 24. The plaintiff’s “office was located at UDC,” and she worked there “almost every day.”
Id. ¶ 29. She “generally did not visit Howard’s Lead Center more than a couple of days a
2
month.” Id. ¶ 29. Dean Mahone was the plaintiff’s “direct supervisor” at the UDC Service
Center. Id. ¶ 30. The plaintiff was able to “create[] her own schedule to best address the goals
of the UDC Service Center.” Id. ¶ 39 (internal alteration omitted). She “was responsible for
preparing [the] UDC [Service Center]’s strategy to achieve the contractual goals specified in the
Howard[-]UDC subcontract, as well as work plans for the UDC Service Center.” Id. ¶ 42. The
plaintiff “had to use her own professional judgment when counseling clients[] and in selecting
topics for training workshops.” Id. ¶ 41. Further, “UDC carried [the plaintiff] on its payroll,
issued her paychecks, and provided her with health and disability insurance.” Id. ¶ 29. The
plaintiff was also “subject to UDC’s leave policies.” Id. And UDC “had [the plaintiff’s]
personnel files.” Id.
After January 2010, the individual Service Centers in the Small Business Network
“worked more independently” from Howard’s Lead Center and there was “decreased
cooperation” with Howard’s Lead Center. Id. ¶ 47. Mr. Turner’s supervisor, Barron Harvey, the
Dean of the Howard School of Business, “became dissatisfied with [Mr.] Turner’s leadership”
and “critic[al] [of Mr.] Turner’s performance” as the Executive Director of the Howard Lead
Center. Id. ¶ 6. Throughout Mr. Turner’s tenure, the plaintiff received “little communication as
to the vision and direction of the [Small Business] [N]etwork and the individual [S]ervice
[C]enters” from the Howard Lead Center.3 Id. ¶ 45. Mr. Turner “eventually decided to retire
effective July . . . 2010.” Id. ¶ 7.
3
The UDC Service Center had also been without a “business counselor” since “June 2010,” as the incumbent had
left “after disputes with [the plaintiff] and after complaining about her condescending attitude.” Pl.’s Summ. J.
Facts ¶ 79 (internal quotation marks omitted); see also id. ¶ 78.
3
In that same month, Howard hired Don Wilson “as a consultant to lead the search for a
new Executive Director of the Howard Lead Center[] and to provide advice about the [Small
Business] [N]etwork.” Id. ¶ 10. In December 2010, an “accreditation team” from the
Association of Small Business Development Centers (“Association”) “visited the District of
Columbia and . . . several [S]ervice [C]enters, including UDC.” Id. ¶ 61. The Association “ran
the Congressionally-approved accreditation program for” small business “networks across the
[United States].” Id. ¶ 11. The Association accreditation team “met with Howard’s Dean
Harvey” and “told him that substantial improvement in the [Small Business] [N]etwork was
required[] and that the performance of the UDC Service Center was especially problematic.” Id.
¶ 62 (internal quotation marks omitted). Based on these remarks, “Howard feared that . . . the
[Small Business Administration] . . . [would] cancel the grant for the entire [Small Business]
[N]etwork.”4 Id. ¶ 63.
Early the following year, in February 2011, “Darrell Brown started work as the new
Executive Director of the Howard Lead Center.” Id. ¶ 12. At that time, both Mr. Brown and Mr.
Wilson “concluded that UDC . . . was the worst-performing [Service] Center in the [Small
Business] [N]etwork.” Id. ¶ 58 (internal quotation marks omitted); see also id. ¶ 72. During that
month, Howard also “received a draft of the [Association] accreditation team’s report” regarding
the Small Business Network, which “recommended deferral of accreditation.” Id. ¶ 68 (internal
quotation marks omitted); see also id. ¶ 63. The report “called upon the [Small Business]
[N]etwork to revisit and analyze its organizational structure for service delivery,” which Mr.
Brown interpreted as “calling for a restructuring analysis of who [Howard] partnered with.” Id. ¶
4
The Howard Lead Center “decided to renew the [Howard-UDC] subcontract for 2011 so that [the] UDC[] [Service
Center’s] status could be reviewed once a new Executive Director was hired for the [Howard] Lead Center.” Pl.’s
Summ. J. Facts ¶ 66.
4
68 (internal quotation marks omitted). In that same month, “Howard also received word that the
[Small Business Administration] was planning to terminate the grant for the entire [Small
Business] [N]etwork,” as the Small Business Administration was not going to “allow the status
quo to continue[]” and warned Howard “that termination of the [Small Business Administration]
grant was a distinct possibility.” Id. ¶ 71.
In March 2011, Mr. Brown and Mr. Wilson “had dinner with several members of the
[Association] accreditation team.” Id. ¶ 69. The members “commented that it was necessary for
Howard to seriously restructure the [Small Business] Network and to do so quickly” and
informed Mr. Brown that “Howard may have to change sub-hosts (i.e., change its [S]ervice-
[C]enter subcontractors),” including “tak[ing] a hard look at UDC.” Id. (internal quotation
marks omitted). Subsequently, the Association accreditation team’s final report informed
Howard that the Small Business Network was “currently unaccredited” and that it “had one year
to cure the problems identified by the [Association].” Id. ¶ 88. Based on this deferral of
accreditation, the Small Business Administration reiterated that it “could terminate the . . . grant
with Howard.” Id. ¶ 89 (internal quotation marks omitted). Thus, “[t]he entire grant was in
serious jeopardy.” Id. (internal quotation marks omitted); see also id. ¶ 90 (“[The Small
Business Administration] called for tough decisions by Howard, including the immediate need to
put action plans in place to address concerns about the quality and strength of partnerships
needed for an effective [Small Business Network]. UDC was the worst[-]performing such
partnership.” (internal ellipses and quotation marks omitted)). But the Small Business
Administration decided to afford Howard some time to “reset the foundation” of the Small
Business Network and bring it “into compliance” with the requirements of the grant. Id. “At all
5
times, [the plaintiff] recognized that [the] UDC [Service Center] needed to improve its
performance.” Id. ¶ 65.
B. The Plaintiff’s Pregnancy And Termination
The plaintiff “learned that she was pregnant in August 2010, with an expected due date of
April 3, 2011.” Id. ¶ 50. She informed Dean Mahone that she was pregnant in the fall of 2010.
Id. ¶ 51. However, “[s]he did not tell anyone at the Howard Lead Center about her pregnancy
[or the expected date of her child’s birth] until January 2011.”5 Id. ¶ 50. In February 2011, the
plaintiff requested leave from UDC beginning on April 3, 2011, which coincided with her
expected due date. See, e.g., Pl.’s Opp’n, Exhibit (“Ex.”) 21 (Declaration of Candice Miles
(“Miles Decl.”)) ¶ 67. Because of “unexpected complications,” however, on March 7, 2011, the
plaintiff was placed “on [temporary] bed rest” by her doctor, and then on March 11, 2011, her
doctor required her to remain on bed rest for the remainder of her pregnancy.6 Pl.’s Summ. J.
Facts ¶ 52; Pl.’s Opp’n, Ex. 21 (Miles Decl.) ¶¶ 75, 77.
A week later, on March 14, 2011, the plaintiff “advised . . . [Mr.] Brown [in an email]
that she had started [her] FMLA leave” and “that her planned return date would fall between
June 27 and July 25[, 2011].”7 Pl.’s Summ. J. Facts at 27 ¶ 84, 28 ¶ 87. When Mr. Brown
learned of the plaintiff’s leave on March 14, 2011, he sent the plaintiff “an email wishing her
well” and inquiring about what “accommodations” the plaintiff had “made to continue servicing
5
This was before Mr. Brown became the new Executive Director of Howard’s Lead Center. See Pl.’s Summ. J.
Facts ¶ 12.
6
The plaintiff gave birth to her child on March 24, 2011. Pl.’s Summ. J. Facts ¶ 52.
7
UDC approved the plaintiff’s leave from the Service Center on March 25, 2011, for the period from April 3, 2011
through June 24, 2011. See Pl.’s Opp’n, Ex. 19 (March 25, 2011 Human Resources Letter (“Human Resources
Letter”)).
6
. . . clients while . . . [she was away] on leave,” id. ¶ 92, as she “had an obligation to make
arrangements for the servicing of [the] UDC [Service Center]’s clients while she . . . [was] out on
expected maternity leave,” id. ¶ 97. But prior to the March 14, 2011 email sent to Mr. Brown,
the plaintiff “had not . . . informed the Howard Lead Center of any plan for servicing [the] UDC
[Service Center]’s clients during the period in which [the plaintiff was] expected to be on leave,”
id. ¶ 93, except to refer clients to another Service Center, see id. ¶¶ 100, 101. Mr. Brown
became “concerned when he learned on March 14, 2011, that counseling services were not being
provided at [the] UDC [Service Center].” Id. ¶ 105. Mr. Brown “believed that [the] UDC
[Service Center] had an obligation to ensure that the Service Center [was] operational and
functioning.” Id. (internal quotation marks omitted). “Mass referrals by [the] UDC [Service
Center] of its clients were considered by [Mr.] Brown to be the last option used, not the first, and
not one that should have persisted for more than a few weeks.” Id. (internal quotation marks
omitted).
A meeting between Howard representatives and UDC’s Dean Mahone was subsequently
convened on April 1, 2011, “to discuss the UDC Service Center.” Id. ¶ 109. During this
meeting, “[Mr.] Brown told Dean Mahone that [because] the UDC Service Center was
underperforming, its Director was on leave, and it had no business consultant, [the] UDC
[Service Center] would be asked to put together a contingency plan to ensure that the [UDC
Service] Center would [continue to] function.” Id. ¶ 110 (internal quotation marks omitted).
Dean Mahone was also informed “that the [Small Business Administration] was demanding
significant corrective actions for the [Small Business] [N]etwork and major structural changes.”
Id.
7
Mr. Brown then “followed up the April 1, 2011 meeting by sending [the] UDC [Service
Center] a letter dated April 7, 2011.” Id. ¶ 120. The letter notified the Service Center that
Howard was placing it on “probation” and warned the Service Center that the Howard-UDC
subcontract (or “subcontract”) “could be terminated if it did not submit a satisfactory ‘Recovery
Plan’ within 30 days.” Id. ¶ 121 (certain internal quotation marks omitted). The letter also
“identified several serious deficiencies in [the] UDC [Service Center]’s performance.” Id. ¶ 122
(citing Def.’s Summ. J. Mem., Ex. 25 (April 7, 2011 Letter from Mr. Brown to Dean Mahoney
(“Apr. 7, 2011 Letter”)) at 1). According to the letter, one such deficiency was that
the [UDC] Service Center Director [wa]s . . . on maternity leave. She took leave
without prior notification to the Executive Director [of the Howard Lead Center].
She notified the Executive Director she was taking leave only after her leave
started and she failed to make any meaningful provision for the continuation of
client services at the UDC [S]ervice [C]enter. Moreover, the [UDC Service]
Center Director failed to communicate to the Executive Director a specific date
and time for returning to work. The [UDC Service] Center Director essentially
abandoned the [S]ervice [C]enter and its clients by her failure to take the
necessary and proper steps to assure viable operation of the [S]ervice [C]enter.
Further, the Center Director failed to communicate to the Executive Director that
the [S]ervice [C]enter would cease to function when she took maternity leave.
Today, the [S]ervice [C]enter is not functioning except for making referrals to
other service centers.
Def.’s Summ. J. Mem., Ex. 25 (Apr.7, 2011 Letter) at 2; see also Def.’s Summ J. Mem., Ex. 8
(Candice Miles Deposition Transcript (“Miles Dep. Tr.”) at 195:4-197:10). In light of the
aforementioned deficiencies, the letter recommended that the UDC Service Center “consider” as
part of its Recovery Plan
replacing the [UDC] Service Center Director with a more experienced person,
who has an educational background and meaningful experience in marketing,
business development, consulting, and communications. Should [UDC] decide to
replace the [UDC] Service Center Director, the final selection of a new Service
Center Director shall be subject to the [Howard] Lead Center’s approval.
Def.’s Summ. J. Mem., Ex. 25 (Apr. 7, 2011 Letter) at 2.
8
On May 6, 2011, Dean Mahoney responded to Mr. Brown’s April 7, 2011 letter,
“acknowledg[ing] that the UDC [Service] Center ha[d] not met many of its goals” and that the
Service Center was “prepared to take the necessary corrective action.” Def.’s Summ. J. Mem.,
Ex. 26 (May 6, 2011 Letter from Dean Mahoney to Mr. Brown (“May 6, 2011 Letter”)) at 1); id.
at 1-3 (identifying corrective actions that the UDC Service Center would institute).
After reviewing Dean Mahoney’s May 6, 2011 letter, Mr. Brown replied on May 11,
2011, concluding that Dean Mahoney had not provided an adequate Recovery Plan, Summ. J.
Mem. Ex. 23 (May 11, 2011 Letter from Mr. Brown to Dean Mahoney (“May 11, 2011 Letter”))
at 1, and “add[ing] that [the] UDC Service Center could only avoid termination [of the Howard-
UDC subcontract] if it agreed to several non-negotiable conditions, including the replacement of
the UDC Service Center Director,” Pl.’s Summ. J. Facts ¶ 133. Mr. Brown “explained that he
wanted new leadership that had the ability to turn the [UDC Service] Center around and . . .
[improve its performance], as the UDC Service Center was the worst-performing [Service]
Center in the [Small Business] Network under the [plaintiff]’s leadership.” Id. ¶ 133.
Later that month, on May 24, 2011, Howard formally terminated the Howard-UDC
subcontract effective June 10, 2011, because the UDC Service Center failed to adopt Mr.
Brown’s suggested changes at the UDC Service Center, id. ¶ 136 (citing Def.’s Summ. J. Mem.,
Ex. 27 (May 24, 2011 Letter from Mr. Brown to Dean Mahoney (“May 24, 2011 Letter”)) at 1),
and the plaintiff “was terminated effective June 30, 2011,” Pl.’s Opp’n, Ex. 21 (Miles Decl.) ¶
107. After Howard’s termination of the subcontract, the Small Business Administration
“concluded during a . . . review of the [Small Business] [N]etwork that Howard’s termination of
the . . . subcontract was managerially and strategically sound.” Id. ¶ 139. The Small Business
Network “later regained full [Association] accreditation.” Id.
9
As a result of the preceding events, the plaintiff filed this action against Howard alleging
violations of the FMLA, the DCFMLA, and the DCHRA. Miles v. Univ. of the District of
Columbia, No. 12-cv-378(RBW), 2013 WL 5817657, at *5 (D.D.C. Oct. 30, 2013). Howard
moved to dismiss the case, arguing that the plaintiff failed to state claims upon which relief may
be granted. Id. The motion was denied by the Court.8 Id. at *15. As noted above, the case is
now before the Court on Howard’s motion for summary judgment.
II. STANDARD OF REVIEW
A motion for summary judgment must 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,” based upon the depositions, affidavits, and other factual materials in the record. Fed. R.
Civ. P. 56(a), (c). A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And “a dispute
over a material fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir.
2006) (quoting Anderson, 477 U.S. at 247). The moving party bears the initial burden of
showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If this burden is satisfied by the moving party, the burden then shifts to the opposing
party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248. “Although summary judgment is not the occasion for the court to weigh credibility
or evidence, summary judgment is appropriate ‘if the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
8
The plaintiff also moved for leave to amend her complaint to add a Title VII claim for discrimination. Miles,
2013 WL 5817657, at *14. Howard opposed the motion, contending that it would be futile to allow the plaintiff
leave to amend her complaint. Id. The Court granted the plaintiff’s motion. Id.
10
party will bear the burden of proof at trial.’” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011) (citations omitted) (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)).
“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for
a [reasonable] jury to return a verdict for that party.” Anderson, 477 U.S. at 249. In making this
assessment, “[t]he evidence is to be viewed in the light most favorable to the nonmoving party
and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera,
638 F.3d at 308 (citing Anderson, 477 U.S. at 255). These inferences, however, must be
“justifiable.” Anderson, 477 U.S. at 255.
III. ANALYSIS
A. Whether Howard Was A Joint Employer Of The Plaintiff
Howard disclaims liability for any alleged violations under the FMLA, the DCFMLA, the
DCHRA, or Title VII on the ground that it was not an “employer” of the plaintiff under any of
these statutes. Def.’s Summ. J. Mem. at 27. The plaintiff responds that Howard and UDC are
liable for any violations under these statutes because they were “joint employers” of the plaintiff.
Pl.’s Opp’n at 13-19. The Court previously held that the joint employment inquiry under the
relevant statutes at issue in this case was to be scrutinized under the tests espoused in Spirides v.
Reinhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979), and NLRB v. Browning-Ferris Indus. of
Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982)). Miles, 2013 WL 5817657, at *7-8.9
The Court now applies each test in turn.
9
When considering Howard’s motion to dismiss earlier in this matter, the Court decided both tests were applicable
out of an abundance of caution, as the District of Columbia Circuit has never explicitly rejected one test over the
other. Nevertheless, the Court notes that the Circuit is more inclined to adopt the Browning-Ferris test when the
issue of joint employment arises in the context of the alleged statutory violations here. See Redd, 232 F.3d at 940
(commenting that the Spirides test is likely “ill-suited to an analysis of whether an employee of a independent
contractor is also an employee of the contractor’s client”); see also Donuts Mid-Atl. Distribution Ctr., Inc. v. NLRB,
(continued . . .)
11
1. The Spirides Test
Since issuing the Spirides opinion, the District of Columbia Circuit has refined and
simplified the method by which courts in this Circuit must evaluate the relationship between a
putative employer and employee. Redd v. Summers, 232 F.3d 933, 938 (D.C. Cir. 2000). In
Redd, the Circuit explained that the main consideration for the Court is the extent to which the
putative employer has the “right to control the means and manner of the worker’s performance.”
Id. (internal quotation marks omitted); see also Spirides, 613 F.2d at 831 (instructing courts to
“analy[ze] the ‘economic realities’ of the work relationship”). “[I]f the putative employer has
‘the right to control and direct the work of an individual, not only as to the result to be achieved,
but also as to the details by which that result is achieved, an employer/employee relationship is
likely to exist.’” Id. (quoting Spirides, 613 F.2d at 831-32). After analyzing the question of
control, courts must also weigh: “the intent of the parties, primarily as reflected in the contract
between the ‘contractor’ and its ‘client’”; “whether contracting out work is justifiable as a
prudent business decision”; “whether the business is exercising a degree of control that seems
excessive in comparison to a reasonable client-contractor relationship in the same
circumstances”; and “whether the relationship shares attributes commonly found in arrangements
with independent contractors or with employees.” Id. at 939-40.
Viewing the facts in a light most favorable to the plaintiff and drawing all reasonable
inferences in her favor, the Court concludes as a matter of law that Howard was not a joint
(. . . continued)
363 F.3d 437, 440 (D.C. Cir. 2004) (applying Browning-Ferris standard in conducting joint employment analysis);
Palmer v. Napolitano, 867 F. Supp. 2d 120, 124 n.1 (D.D.C. 2012) (noting that Redd suggested in dictum that
Browning-Ferris was the preferred method of evaluating joint-employer analysis in cases like the one before the
Court).
12
employer of the plaintiff under the Spirides analysis. As to the issue of control, the plaintiff had
significant autonomy in directing the UDC Service Center and deciding what her day-to-day
routine should be in order to advance the goals of the UDC Service Center. For example, the
plaintiff “was responsible for preparing [the] UDC [Service Center]’s strategy to achieve the
contractual goals specified in the Howard[-]UDC subcontract, as well as [the] work plans for the
UDC Service Center.” Pl.’s Summ. J. Facts ¶ 42; see also id. (“[The plaintiff] was responsible
for preparing the Strategic Action Plan for the UDC Service Center and for creating the Strategic
Action Items for each of the Performance Indicators.” (internal quotation marks omitted)); id. ¶
43 (“The plaintiff . . . [can]not recall that anyone at the Howard Lead Center ever told UDC that
it had [to] follow a work plan, marketing plan, or strategic action plan written by Howard. [The
plaintiff] . . . [can]not recall anyone at Howard ever asking her to change the strategic plans or
work plans which she had prepared.” (citations and internal quotation marks omitted)). She was
also able to “create[] her own schedule to best address the goals of the UDC Service Center.” Id.
¶ 39 (internal alteration omitted). And “when counseling clients[]” or “selecting topics for
training workshops,” the plaintiff “use[d] her own professional judgment.” Id. ¶ 41. However,
Howard “never denied permission for [the] UDC [Service Center] to give a workshop that [it]
proposed.” Id. Notably, the plaintiff’s “direct supervisor” was Dean Mahone and not anyone at
Howard. Id. ¶ 30.
The Standard Operating Procedures, which Howard promulgated in December 2010,10
shed further light on the issue of control. See id. ¶ 31. In outlining the expectations for a Service
Center Director, the Standard Operating Procedures state that:
10
The Standard Operating Procedures were revised “[a]round December 2010.” Pl.’s Summ. J. Facts ¶ 31.
(continued . . .)
13
A [Service] Center Director is responsible for the management and services
provided at an individual [Small Business Network] [S]ervice [C]enter location.
He/she is also responsible for the supervision of any staff in [his/her] [Service]
[C]enter. In addition to the steps required for every new employee, [Service]
Center Directors will be required to receive information and training on [the
Small Business Network] budget and the final report system by the Financial
Control Manager in the [Howard] Lead Center. They must also receive training
on the current reporting system software and other software programs currently
used by the [Small Business Network] and to shadow a [Service] Center Director
in the [Howard] Lead Center to observe work process and at least one (1) full day
client consultation. Also, a [Service] Center Director will make at least one (1)
visit to another [Small Business Network] [Service] [C]enter to observe
operations and perform work functions. He/she must also meet with and receive
training from the host institution for [his/her] [Service] [C]enter on the operation
requirements of that host.
Def.’s Summ. J. Mem., Ex. 13 (The District of Columbia Small Business Development Center
Standard Operating Procedures (“Standard Operating Procedures”)) at 17; see also id. at 53-54
(listing additional responsibilities for Service Center Directors). Nowhere in the Standard
Operating Procedures11 does it demonstrate that Howard directed and controlled the specific
means by which the plaintiff fulfills her responsibilities as the UDC Service Center Director. At
most, the Standard Operating Procedures establish that Howard monitored the plaintiff for
quality control purposes; in other words, it set out certain high-level personnel requirements for
all Service Center employees to fulfill so that the Small Business Network would maintain its
accreditation from the Association, which in turn allowed Howard to remain eligible for funding
from the Small Business Administration. See id. at 15 (“The [Howard] Lead Center will review
the adequacy of the [Service] [C]enter’s staffing pattern, adherence to host institution
(. . . continued)
11
The parties have only attached excerpts of the Standard Operating Procedures. The Court presumes that those
portions not attached to the parties’ submissions contain information that is either immaterial or irrelevant to the
Court’s summary judgment analysis.
14
procedures, and ability to provide core services during annual internal audits.”); see also id. at
15-17 (imposing certain training requirements and mandating certain orientations for employees
of the Service Centers). Such oversight from Howard, see, e.g., Pl.’s Opp’n at 17, however, is
insufficient to establish that it was a joint employer of the plaintiff, see Jacobson v. Comcast
Corp., 740 F. Supp. 2d 683, 690 (D. Md. 2010) (“[S]upervision and control is probative of an
employment relationship only when the oversight demonstrates effective control over the
schedule and conditions of employment. The nature of the control exercised by [a] putative joint
employer is the key element in this analysis. This factor does not contemplate the generic
control exercised by a supervisor over an independent contractor. Therefore, detailed
instructions and a strict quality control mechanism will not, on their own, indicate an
employment relationship. Indeed, detailed instructions and close monitoring are key components
in many independent contractor and franchise relationships. A high level of supervision and
control is not an automatic trigger for joint employment.” (citations and footnote omitted)).
Next, Howard never intended to convert the personnel at the UDC Service Center into
Howard employees. In pertinent part, the Standard Operating Procedures delegate daily
personnel management to the UDC Service Center and not Howard:
Unless otherwise provided in this operating standard or in Operating Standard 2.4,
the hiring, retention, management and termination of [Small Business Network]
employees will be governed by the standard written personnel policies of the
respective host/sponsoring institution. . . . The personnel policies of the
host/sponsoring institution will govern all [Small Business Network] personnel
matters including, but not limited to, recruitment, hiring, fringe benefits, health
and insurance plans, holidays, sick leave, vacation leave, disciplinary actions,
promotions, cost of living increments, leaves of absence and termination. These
personnel policies will govern the employment of faculty, professional, support,
clerical and student employees of the [Small Business Network] at that institution.
15
Def.’s Summ. J. Mem., Ex. 13 (Standard Operating Procedures) at 53; see also Pl.’s Summ. J.
Facts ¶ 31. The Standard Operating Procedures also state that the “salaries, benefits, personnel
policies and procedures are established by the host institution of that particular [Small Business
Network] [Service] Center.” Def.’s Summ. J. Mem., Ex. 13 (Standard Operating Procedures) at
53; see also Pl.’s Summ. J. Facts ¶ 31. Tellingly, prior to this litigation, the plaintiff never
viewed Howard as her employer. This reality is demonstrated by the fact that after “[the
plaintiff] left UDC,” she applied for a new job and “listed UDC as her employer[] and [Dean]
Mahone as her immediate supervisor, with no mention of Howard or anyone at Howard.” Pl.’s
Summ. J. Facts ¶ 33.
Further, Howard’s decision to subcontract with UDC “to provide small-business
development services” at UDC, id. ¶¶ 2-3, was a prudent business decision. The record evidence
establishes that subcontracting with UDC, as well as other non-profit organizations in the District
of Columbia, was necessary so that Howard could ensure that the Small Business Network
expanded to “different parts of the city.” Id. ¶¶ 1-3.
Finally, as the Court has already explained, the degree of control that Howard exercised
over the plaintiff was not unreasonably excessive because the plaintiff’s employment with UDC
shared common attributes with employees who work for independent contractors. Compare,
e.g., Redd, 232 F.3d at 939, 940 (listing factors suggesting lack of joint employment, such as
when subcontractor pays the employee, affords the employee leave, and provides the place of
work), with Def.’s Summ. J. Mem., Ex. 13 (Standard Operating Procedures) at 53 (explaining
that the “personnel policies of [UDC] will govern all . . . personnel matters including, but not
limited to, recruitment, hiring, fringe benefits, health and insurance plans, holidays, sick leave,
vacation leave, disciplinary actions, promotions, cost of living increments, leaves of absence and
16
termination”), Pl.’s Summ. J. Facts ¶ 29 (“UDC carried [the plaintiff] on its payroll, issued her
paychecks, and provided her with health and disability insurance. [The plaintiff]’s office was
located at UDC. She was subject to UDC’s leave policies. [The plaintiff] was at UDC almost
every workday, and generally did not visit Howard’s Lead Center more than a couple of days a
month.” (citations omitted)), and id. at 16 ¶ 32 (admitting “that [the] defendant did not pay [the
plaintiff] a salary, social security benefits, or provide [the plaintiff] with benefits; that Howard
did not provide [the plaintiff] with a place to work, provide [the plaintiff] with annual leave, or
set the leave policies that governed [the plaintiff]’s employment; [and] that Howard had no
authority to discipline [the plaintiff] . . . .”). Howard’s degree of supervision is not unusual in
circumstances where an employee works for a subcontractor. See, e.g., Moreau v. Air France,
356 F.3d 942, 951 (9th Cir. 2004) (supervision of workers not indicative of joint employment
where contractor was “very specific about how it wanted its work performed, and [the
contractor] checked to ensure that its standards were met and that the [subcontractor]’s overall
performance adhered to [the contractor]’s specifications”). The plaintiff makes no attempt to
distinguish the relationship between Howard and herself from the typical employee who works
for a subcontractor and that employee’s relationship with the contractor. Accordingly, Howard
is not a joint employer under the Spirides test.
2. The Browning-Ferris Test
The Browning-Ferris test leads the Court to the same conclusion. Under this analysis, the
Court must assess “whether ‘one employer, while contracting in good faith with an otherwise
independent company, has retained for itself sufficient control of the terms and conditions of
employment of the employees who are employed by the other employer.’” Redd, 232 F.3d at
938 (quoting Browning-Ferris, 691 F.2d at 1123). Factors for the Court to consider under the
17
Browning-Ferris test include: “[(1)] the alleged employer’s authority to hire and fire the relevant
employees; [(2)] the alleged employer’s authority to promulgate work rules and assignments and
to set the employees’ conditions of employment: compensation, benefits, and work schedules,
including the rate and method of payment; [(3)] the alleged employer’s involvement in day-to-
day employee supervision, including employee discipline; and [(4)] the alleged employer’s
actual control of employee records, such as payroll, insurance, or taxes.” In re Enter. Rent-A-
Car Wage & Hour Emp’t Practices Litig., 683 F.3d 462, 469 (3d Cir. 2012); see also id. (noting
also that list of specified factors is not exhaustive and that the Court should account for any
variables that clarify the total employment situation).
Here, none of the facts in the record would permit a reasonable jury to find that Howard
was a joint employer of the plaintiff as a matter of law. First, although it is undisputed that
Howard has some control12 over the hiring of Service Center Directors, as it must “concur in the
appointment” of any new Service Center Director at UDC, Pl.’s Summ. J. Facts ¶ 31 (internal
quotation marks omitted), this authority to “pre-screen” candidates for a particular position does
not equate to a sufficient control of the terms and conditions of the plaintiff’s employment
because once a Service Center Director is hired, Howard lacks the authority to fire the Director.13
12
Contrary to the plaintiff’s suggestion that Howard could “force” the UDC Service Center to “hire its chosen
candidate for [a Service] Center Director [position],” Pl.’s Opp’n at 16, that does not appear to be an accurate
reflection of the record, see Def.’s Reply at 10 (citing Def.’s Summ. J. Mem., Ex. 12 (Charlie Mahone Deposition
Transcript (“Mahone Dep. Tr.”)) at 144:21-145:2).
13
The plaintiff mistakenly argues that Howard’s “ability to terminate [the plaintiff]’s employment through its
rescission of the UDC sub-grant” illustrates that a joint employer relationship existed in this case. Pl.’s Opp’n at 17.
As a matter of law, Howard’s ability to not renew the subcontract with UDC does not confer upon itself the actual
authority to terminate the plaintiff’s employment. Simms, 587 F. Supp. 2d at 274 (“[The contractor] did not have . .
. the authority to terminate [the subcontractor’s] employees. Rather, [the] plaintiff’s ‘termination’ was due to [the
contractor]’s decision not to renew the contract with [the subcontractor].”); see also Santichen v. Greater Johnstown
Water Auth., No. 06-cv-72(KRG), 2008 WL 868212, at *11 (W.D. Pa. Mar. 31, 2008) (recognizing that “[t]he mere
fact that [the plaintiff’s] continued employment with [the subcontractor] was dependent upon [the subcontractor]’s
(continued . . .)
18
Simms v. D.C. Gov’t, 587 F. Supp. 2d 269, 274-75 (D.D.C. 2008); see also Redd, 232 F.3d at
940 (“As to [the plaintiff]’s termination, while the contract gives the [contractor] the right to
reject any guide, under the contract the decision to terminate the . . . employment with [the
subcontractor] is solely within [the subcontractor]’s power. . . . [T]he [contractor]’s command to
remove a specific worker (say, on grounds of rudeness or just personal incompatibility) would
hardly render the worker an employee of the [contractor].”); Santichen v. Greater Johnstown
Water Auth., No. 06-cv-72(KRG), 2008 WL 868212, at *10 (W.D. Pa. Mar. 31, 2008) (finding
no joint-employer relationship under Browning-Ferris test where, inter alia, contractor “reserved
the right to monitor [subcontractor]’s personnel decisions” for quality control purposes, but “did
not reserve the right to direct the hiring (or dismissal) of a particular employee” even though the
contractor had the right to “agree as to who was . . . [hired]”).
Second, it is undisputed that personnel matters such as workplace rules and conditions of
employment were handled by UDC, not Howard. Def.’s Summ. J. Mem., Ex. 13 (Standard
Operating Procedures) at 53 (“The personnel policies of [UDC] will govern all . . . personnel
matters including, but not limited to, recruitment, hiring, fringe benefits, health and insurance
(. . . continued)
contract with the [contractor] did not transform the [contractor] into [the plaintiff’s] employer”). Likewise, when
Howard recommended that the UDC Service Center replace the plaintiff with someone whom Howard approved or
face the possibility of losing the subcontract, see Pl.’s Opp’n at 17 (citing Pl.’s Opp’n, Ex. 11 (Apr. 7, 2011 Letter)
at 3; Pl.’s Opp’n, Ex. 13 (May 11, 2011 Letter) at 2), this also was not tantamount to an ability to terminate the
plaintiff’s employment, see Braden v. Cnty. of Wash., No. 08-cv-574(DWA), 2010 WL 1664895, at *7 (W.D. Pa.
Apr. 23, 2010) (concluding that the defendant was not plaintiff’s joint employer because, inter alia, it lacked the
power to terminate the plaintiff’s employment, even where the defendant had recommended that the plaintiff be
“suspended, written up, and fired”); Vrabel v. Greater Johnstown Water Auth., No. 06-cv-73(KRG), 2008 WL
868152, at *11 (W.D. Pa. Mar. 31, 2008) (“The Court acknowledges that [the plaintiff’s] continued employment
with [the subcontractor] was dependent upon [the subcontractor’s] contract with the [contractor], and that [the
subcontractor]’s decision to terminate [the plaintiff] was directly triggered by the [the contractor]’s decision to
discontinue its business relationship with [the subcontractor]. Nonetheless, the mere fact that [the plaintiff]’s
termination was incidentally caused by a decision made by the [the contractor] did not transform the [the
subcontractor] into his employer.”). Also indicative of Howard’s inability to terminate the plaintiff’s employment is
that it did not do so on its own; instead it suggested that the UDC Service Center replace the plaintiff.
19
plans, holidays, sick leave, vacation leave, disciplinary actions, promotions, cost of living
increments, leaves of absence and termination.”); see also Pl.’s Summ. J. Facts ¶¶ 29-31; id. at
16 ¶ 32 (admitting “that [the] defendant did not pay [the plaintiff] a salary, social security
benefits, or provide [the plaintiff with] benefits; that Howard did not provide [the plaintiff] with
a place to work, provide [the plaintiff with] annual leave, or set the leave policies that governed
[the plaintiff]’s employment; [and] that Howard had no authority to discipline [the plaintiff] . . .
.”). And there is no dispute that UDC “had [the plaintiff’s] personnel files.” Pl.’s Summ. J.
Facts ¶ 29.
The plaintiff makes much of the fact that Howard was “solely responsible for [the]
oversight of the daily operations of the UDC [Service] Center,” Pl.’s Opp’n at 17; see also id. at
18 (“The Executive Director at the [Howard] Lead Center was solely responsible for overseeing
the day-to-day operations of the UDC [Service] Center . . . .”), which is consistent with what is
laid out in the Standard Operating Procedures, see Def.’s Summ. J. Mem., Ex. 13 (Standard
Operating Procedures) at 15 (“The [Howard] Lead Center will review the adequacy of the
center’s staffing pattern, adherence to host institution procedures, and ability to provide core
services during annual internal audits.”). But this fact does little to convert Howard into a joint
employer, as the record evidence cited by the plaintiff does not detail the degree of this daily
oversight over the UDC Service Center, i.e., what and how much daily control Howard had over
the plaintiff. Moreover, to the extent that Howard oversaw the operations of the UDC Service
Center on a daily basis, it remains undisputed that:
 “[the plaintiff], as [UDC] Service Center [D]irector, created her own schedule to best
address the goals of the [UDC] Service Center”;
 “[the plaintiff] was responsible for preparing [the] UDC [Service Center]’s strategy to
achieve the contractual goals specified in the Howard[-]UDC subcontract, as well as
[the] work plans for the UDC Service Center”;
20
 “[the plaintiff] was responsible for preparing the Strategic Action Plan for the UDC
Service Center and for creating the Strategic Action Items for each of the
Performance Indicators”;
 “[the plaintiff] had to use her own professional judgment when counseling clients[]
and in selecting topics for training workshops”; and
 “[t]he Howard Lead Center never denied permission for UDC to give a workshop that
UDC propose.”
Pl.’s Summ. J. Facts ¶¶ 39-42 (internal quotation marks omitted); see also id. ¶ 37 (“Before [Mr.]
Turner’s departure in July 2010, . . . [the plaintiff] very rarely met alone with [Mr.] Turner.”
(internal quotation marks omitted)); id. ¶ 43 (“[The plaintiff] . . . [can]not recall that anyone at
the Howard Lead Center ever told UDC that it had [to] follow a work plan, marketing plan, or
strategic action plan written by Howard. [The plaintiff] . . . [can]not recall anyone at Howard
ever asking her to change the strategic plans or work plans which she had prepared.” (internal
quotation marks omitted)); id. ¶ 44 (“[The plaintiff] . . . can[not] recall that [Mr.] Turner, at the
Howard Lead Center, ever refused to approve something she wanted to do.” (internal quotation
marks omitted)); id. ¶ 46 (“No one at [the] Howard [Lead Center] gave [the plaintiff] guidance,
following her semi-annual reports, that the UDC [Service] Center should try doing something a
little differently.” (internal quotation marks omitted)); id. ¶ 47 (“After January 2010, the
[Service] [C]enters worked more independently, and there was decreased cooperation with [the]
Howard[] Lead Center.” (internal quotation marks omitted)); Def.’s Summ. J. Mem., Ex. 8
(Miles Dep. Tr.) at 56:2-17 (the plaintiff recalling that after Mr. Turner left in July 2010, “there
[was not] much oversight relating to the operations of the [S]ervice [C]enters”). So the extent of
oversight that Howard exercised over the UDC Service Center did not relate to the “essential
21
terms and conditions [of the plaintiff’s] employment,” Browing-Ferris, 691 F.2d at 1123
(internal quotation marks omitted).14
Because Howard was not a joint employer under either the Spirides or the Browning-
Ferris tests, the Court will grant Howard’s motion for summary judgment as to all of the
plaintiff’s claims against Howard.
B. The Plaintiff’s Retaliation And Interference Claims Under The FLMA And
Retaliation Claim Under The DCFLMA
Even if the Court could conclude that Howard was a joint employer of the plaintiff, it
would still be compelled to grant summary judgment to Howard on count one of the complaint,
which asserts retaliation and interference claims under the FLMA, as well as count two, which
asserts a retaliation claim under the DCFLMA. See Compl. ¶¶ 116-38. In the context of
summary judgment, a retaliation claim under either the FMLA or the DCFMLA is scrutinized
under the familiar burden-shifting framework laid out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03, 807 (1973). See, e.g., Alford v. Providence Hosp., 945 F. Supp. 2d 98,
108 (D.D.C. 2013), aff’d, 561 F. App’x 13 (D.C. Cir. 2014) (applying McDonnell Douglas to
retaliation claims under both statutes); Cobbs v. Bluemercury, Inc., 746 F. Supp. 2d 137, 142
(D.D.C. 2010) (explaining that “[c]ourts interpret the FMLA and the DCFMLA similarly” and
applying McDonnell Douglas to FMLA and the DCFMLA retaliation claims). Under this
14
If the Court could draw the favorable inference that Howard micromanaged the daily operations of the UDC
Service Center—which would be unreasonable because the record evidence suggests otherwise—it would still find
that Howard was not a joint employer in light of the undisputed facts concerning the relationship between Howard
and the plaintiff. See In re Enter. Rent-A-Car, 683 F.3d at 471 (“When a legal standard requires the balancing of
multiple factors, as it does in this case, summary judgment may still be appropriate even if not all of the factors
favor one party . . . .”); Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 76-77 (2d Cir. 2003) (“In order to grant
summary judgment for defendants, the [d]istrict [c]ourt would have to conclude that, even where both the historical
facts and the relevant factors are interpreted in the light most favorable to [the] plaintiffs, [the] defendants are still
entitled to judgment as a matter of law. To reach this conclusion, the Court need not decide that every factor weighs
against joint employment.” (emphasis in original) (footnote omitted)).
22
burden-shifting framework, the plaintiff may establish a prima facie case, creating a presumption
of retaliation, by showing that (1) the plaintiff exercised rights afforded by the FMLA or
DCFMLA; (2) the plaintiff suffered an adverse employment action; and (3) there was a causal
connection between the exercise of the plaintiff’s statutory rights and the adverse employment
action. Alford, 945 F. Supp. 2d at 108. Once the plaintiff establishes a prima facie case, the
burden shifts to the defendant to proffer a legitimate basis for the adverse employment action.
Id. Where the alleged retaliatory, adverse action is the plaintiff’s termination, “the burden is on
[the defendant] to show that it had a legitimate reason, unrelated to the exercise of FMLA [or
DCFMLA] rights, to terminate [the plaintiff] . . . .” Hopkins v. Grant Thornton Int’l, 851 F.
Supp. 2d 146, 155-56 (D.D.C. 2012), aff’d sub nom., Hopkins v. Grant Thornton, LLP, 529 F.
App’x 1 (D.C. Cir. 2013). In other words, the defendant has the burden of showing that during
the plaintiff’s statutory leave, the plaintiff “would have been dismissed regardless of the
employee’s request for leave.” Id. “If the [defendant] successfully presents a legitimate, non-
retaliatory reason for its actions, ‘the presumption raised by the prima facie is rebutted and drops
from the case.’” Deloatch v. Harris Teeter, Inc., 797 F. Supp. 2d 48, 67-68 (D.D.C. 2011)
(quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993)).
The Court must then resolve the lone question of whether the plaintiff has “produced
sufficient evidence for a reasonable jury to find that the [defendant]’s asserted non-retaliatory
reason was not the actual reason and that the employer intentionally retaliated against the
employee . . . .” Id. (internal quotation marks omitted); see also Jones v. Bernanke, 557 F.3d
670, 677 (D.C. Cir. 2009) (“If the . . . [defendant puts forth a legitimate, non-retaliatory reason],
‘the burden-shifting framework disappears, and a court reviewing summary judgment looks to
whether a reasonable jury could infer retaliation from all the evidence,’ which includes not only
23
the prima facie case but also the evidence the plaintiff offers to ‘attack the [defendant]’s
proffered explanation for its action’ and other evidence of retaliation.” (ellipses omitted)
(quoting Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004))). “In other
words, [whether] the plaintiff ‘show[ed] both that the reason was false[] and that retaliation was
the real reason.’” Deloatch, 797 F. Supp. 2d at 68 (ellipses omitted) (quoting Weber v. Battista,
494 F.3d 179, 186 (D.C. Cir. 2007)). Relevant evidence demonstrating such a showing includes
pretext. Jones, 557 F.3d at 679. “[E]vidence of pretext is . . . usually . . . enough to get a
plaintiff’s [retaliation] claim to a jury.” Id. (citations and internal alterations and ellipses
omitted). Pretext can be shown by citing evidence that suggests the defendant was “making up
or lying about the underlying facts that formed the predicate for the employment decision.”
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). “If the [defendant]’s
stated belief about the underlying facts is reasonable in light of the evidence, however, there
ordinarily is no basis for permitting a jury to conclude that the [defendant] is lying about the
underlying facts.” Id.
Here, Howard concedes that the plaintiff has established a prima facie case of retaliation,
but contends that it had a legitimate basis for terminating the plaintiff. See Def.’s Summ. J.
Mem. at 35 n.34, 38. Specifically, Howard represents that it terminated the Howard-UDC
subcontract in May 2011 because “the UDC Service Center was the worst performing center in
the network, and Howard reasonably concluded that its performance would not improve.” Id. at
38; see also Pl.’s Summ. J. Facts ¶¶ 54-55, 58, 61-62, 65, 68-69, 72, 90, 109-10, 120-23, 133,
136, 139. Indeed, after the termination of the subcontract, the Small Business Administration
“concluded during a . . . review of the [Small Business] [N]etwork that . . . [the] termination . . .
was managerially and strategically sound.” Pl.’s Summ. J. Facts ¶ 139. And the Small Business
24
Network would ultimately “regain[] full . . . accreditation” from the Association, id., which was
previously “deferred” in March 2011, id. ¶ 88. The Court finds that “[a] planned reduction in
force necessitated by business conditions is a legitimate reason for terminating an employee.”
Cobbs, 746 F. Supp. 2d at 142 (internal quotation marks omitted); see also Goss v. George
Washington Univ., 942 F. Supp. 659, 664 (D.D.C. 1996) (granting summary judgment against
plaintiff where “a reduction in [work]force” was a “legitimate” business reason to dismiss the
plaintiff).
Notwithstanding Howard’s explanation for terminating the Howard-UDC subcontract,
the plaintiff insists that Howard’s proffered business reason is merely pretext. See Pl.’s Opp’n at
22-25. But the grounds offered as support for the plaintiff’s allegation of pretext are individually
and collectively insufficient for a reasonable jury to reach that same conclusion. The Court
rejects the plaintiff’s proposition that Howard harbored a “discriminatory animus against
employees who take maternity leave” because Howard only required a continuity plan from the
plaintiff who was pregnant.15 Id. at 22. It is undisputed that the plaintiff “never heard anyone at
the Howard Lead Center make negative remarks about people who went out on family medical
leave, people who got pregnant, people who had to take leave in order to care for family
members, or about women based on their gender,” Pl.’s Summ. J. Facts ¶ 25 (internal quotation
marks omitted), and that the plaintiff “has no information, and there is no evidence[,] that anyone
who worked at the [Small Business Network] who took FMLA leave suffered any problems in
[his/her] jobs afterwards,” id. ¶ 26 (internal alteration and quotation marks omitted); see also
15
On this point, the plaintiff offers the deposition testimony of Dean Harvey. Pl.’s Opp’n at 22 (citing Pl.’s Opp’n,
Ex. 15 (Deposition Transcript of Barron Harvey (“Harvey Dep. Tr.”) at 52)). But Dean Harvey’s testimony does not
show either directly or indirectly that continuity plans were not required from Service Center Directors taking other
types of statutory leave, as no other Service Center Directors were pregnant or planned to be on leave for any other
reason. Pl.’s Opp’n, Ex. 15 (Harvey Dep. Tr.) at 52:10-21.
25
Pl.’s Opp’n at 23 (conceding that Howard “considered terminating the [Howard-]UDC
subcontract long before [the] plaintiff took leave” (internal quotation marks omitted)). In fact,
“[o]ne female employee of the Howard Lead Center who took pregnancy-related leave was
promoted upon her return.” Pl.’s Summ. J. Facts ¶ 27. And when Mr. Brown learned of the
plaintiff’s leave from the UDC Service Center, he actually “wished her well.” Id. ¶ 92. In light
of these undisputed facts, a reasonable jury could not find that Howard harbored any
discriminatory animus against the plaintiff for taking maternity leave.
Next, the plaintiff mischaracterizes the record evidence in arguing that Howard “singled
out [the plaintiff]’s FMLA [and DCFLMA] leave as a reason for placing the UDC [Service]
Center on probation[] and only made the decision to shut down the UDC [Service] Center once it
became clear that [the UDC Service Center] was not going to terminate [the plaintiff].”16 Pl.’s
Opp’n at 22. Howard did not “single out” the plaintiff’s decision to take maternity leave as a
reason for placing the UDC Service Center on probation; rather, probation was necessary, in part
because the plaintiff failed to make arrangements for counseling services at the UDC Service
Center during her absence. See Pl.’s Summ. J. Facts ¶¶ 92-93, 97 (plaintiff admitting that
despite her “obligation to make arrangements for the servicing of [the] UDC [Service Center]’s
clients while she . . . [was] out on expected maternity leave,” she “had not . . . informed the
Howard Lead Center of any plan for servicing [the] UDC [Service Center]’s clients during the
period in which [the plaintiff was] expected to be on leave” prior to her maternity leave); id. ¶
105 (“Mr. Brown was concerned when he learned ‘that counseling services were not being
provided at [the] UDC [Service Center]’”). And the decision to terminate the subcontract
16
It is unclear whether the plaintiff’s citation to Darrell Brown’s deposition testimony even supports this argument.
See Pl.’s Opp’n at 22 (citing Ex. 1 (Deposition Transcript of Darrell Brown (“Brown Dep. Tr.”) at 126-28, 134)).
26
thereafter was due to a number of reasons independent of whether the UDC Service Center
would replace the plaintiff. See Pl.’s Summ. J. Facts ¶¶ 78-79, 109-10, 120-23, 133, 136; see
also Def.’s Summ. J. Mem., Ex. 8 (Miles Dep. Tr.) at 195:4-197:10; Summ. J. Mem., Ex. 25
(Apr. 7, 2011 Letter) at 2-3 (identifying several “major deficiencies” at the UDC Service Center
and requiring it to submit a recovery plan to Howard within thirty days); Summ. J. Mem., Ex. 23
(May 11, 2011 Letter) at 1-2 (enumerating many reasons why the UDC Service Center’s
proposed recovery plan was “inadequate” and ordering it to agree to several conditions in order
to save the subcontract); Summ. J. Mem., Ex. 27 (May 24, 2011 Letter) at 1 & n.1 (terminating
subcontract for failing to follow conditions imposed by Howard). In light of the pressure from
the Small Business Administration and the Association accreditation team to improve the Small
Business Network, see ¶¶ 61-63, 65-66, 68-69, 71-72, 78-79, 88-90, 109-10, the communications
between Howard and the UDC Service Center do not demonstrate that the “determinative factor”
or that the “real” and “true reason” for terminating the Howard-UDC subcontract was because of
the plaintiff’s maternity leave, Roseboro v. Billington, 606 F. Supp. 2d 104, 110 (D.D.C. 2009)
(“The employee must demonstrate that retaliation was not just ‘a mere factor among many,’ but
the ‘determinative factor’ or ‘real’ and ‘true reason’ behind the adverse action.” (quoting
Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 10 (1st Cir. 1998))).17
17
The plaintiff does not appear to dispute that there must be sufficient evidence for a jury to find that Howard’s
retaliation was the “determinative” factor that led Howard to terminate the subcontract. But it appears that the
plaintiff has somewhat implicitly conceded that she cannot meet this burden. Compare Pl.’s Opp’n at 25
(recognizing that record evidence must be sufficient for a reasonable jury to find that the plaintiff’s maternity leave
was the “predominant cause” for Howard’s termination of the subcontract (emphasis added)), with id. at 22
(“[T]here is sufficient evidence to show that [the plaintiff]’s FMLA leave was at least a motivating factor in
Howard’s adverse employment actions.” (emphasis added)). Even if the Court could apply a less-exacting standard,
the record evidence still would not permit a reasonable jury to find that “a motivating factor” for Howard’s
termination of the subcontract was the plaintiff’s maternity leave because the undisputed facts demonstrate that
Howard terminated the subcontract at a time when Howard was pressured to make changes to the Small Business
(continued . . .)
27
Instead, the evidence more than reasonably shows that Howard terminated the subcontract
because it was under pressure from the Small Business Administration and the Association to
reevaluate and reform the Small Business Network, and the UDC Service Center refused to
implement improvements Howard suggested, including hiring a new Director for the UDC
Service Center, even though it was the worst-performing Service Center in the Small Business
Network under the plaintiff’s leadership. Brady, 520 F.3d at 495 (“there ordinarily is no basis
for permitting a jury to conclude that the [defendant] is lying about the underlying facts” if they
are “reasonable in light of the evidence”).
Much of the plaintiff’s support for her theory of pretext relies on the basis that other
Service Centers in the Small Business Network were as deficient as the UDC Service Center, but
Howard took no corrective actions against those other Service Centers and only took such
actions against the UDC Service Center after learning of the plaintiff’s maternity leave in the
spring of 2011. See Pl.’s Opp’n at 24. But the undisputed facts belie the plaintiff’s attempt to
draw parallels between the performance of the UDC Service Center and that of other Service
Centers in the Small Business Network. Although the Small Business Network may have been
underperforming as a whole for a prolonged period of time and the UDC Service Center’s
performance may have “only [been] marginally worse” than its counterparts, it is still undisputed
that at all relevant times the UDC Service Center “was the worst-performing [Service] [C]enter
in the [Small Business] [N]etwork.”18 Pl.’s Summ. J. Facts ¶ 58 (internal quotation marks
(. . . continued)
Network by the Small Business Administration and the Association, and the UDC Service Center did not implement
Howard’s recommendations to improve its performance.
18
The plaintiff argues that Howard did not terminate a subcontract with another Service Center—the District of
Columbia Chamber Center—despite the fact that it was without a Service Center Director during the relevant period
(continued . . .)
28
omitted); see also id. ¶¶ 54-55, 65, 72, 82. Furthermore, the Association accreditation team
singled out the UDC Service Center’s performance as being “especially problematic” in
December 2010. Id. ¶ 62; see also id. ¶ 69 (“[The Association accreditation team] also told
Howard that [it] needed to take a hard look at UDC.” (internal quotation marks omitted)); id. at
21-22 ¶ 64 (“By December 2010, [the plaintiff] was concerned that her job was in jeopardy in
light of the goals and performance of the UDC Service Center. She was concerned that the
performance of the UDC Service Center in 2010 might be viewed as inadequate as a basis for
renewing that sub-grant. This was before she informed anyone at Howard about her pregnancy.”
(citations and internal quotation marks omitted)).19 And thereafter, in March 2011, “[the Small
Business Administration] called for tough decisions by Howard, including the immediate need to
put action plans in place to address concerns about the quality and strength of partnerships
needed for an effective [Small Business Network]. UDC was the worst performing such
partnership.” Id. ¶ 90 (citations and internal ellipses and quotation marks omitted); see also id. ¶
71; Def.’s Summ. J. Mem., Ex. 22 (March 21, 2011 Letter from Small Business Administration
to Howard (“Mar. 21, 2011 Letter”) at 1). As Howard correctly observes, the “status of the
[Small Business Network] reached a crisis point between December 2010 and March 2011,”
(. . . continued)
of time, and thus it had to refer clients to other Service Centers, which is the continuity plan that the plaintiff put into
effect during her maternity leave. Pl.’s Opp’n at 24. But by the plaintiff’s own admission, the District of Columbia
Chamber Center and the UDC Service Center were not “equally non-functioning,” id. at 25, as “[t]he [District of
Columbia] Chamber’s Service Center was not the worst-performing [Service] [C]enter,” Pl.’s Summ. J. Facts ¶ 91.
More importantly, “it continued to provide counseling services . . . through a business counselor,” id., whereas the
plaintiff “did not even try to arrange to hire temporary counselors for the [UDC Service Center during the] period in
which she planned to be out on [maternity] leave,” id. ¶ 101; see also id. ¶¶ 78-79, 122, 133.
19
The deposition testimony cited by the plaintiff does not address Howard’s proffered facts, and thus these facts are
undisputed. See, e.g., Am. Fed’n of State, Cnty., & Mun. Emps. Local 2401 v. District of Columbia, 31 F. Supp. 3d
149, 150 n.2 (D.D.C. 2014) (deeming the defendant’s proffered facts as admitted where the plaintiffs’
“countervailing facts . . . (1) are not supported by the evidence to which [the] [p]laintiffs cite, (2) do not address
the factual allegation raised by [the] [d]efendant, and/or (3) do not create a dispute of fact”).
29
Def.’s Reply at 14; see also id. at 16-17, Pl.’s Summ. J. Facts at 21-22 ¶ 64, which unfortunately
coincided with the time when the plaintiff exercised her statutory rights to take maternity leave
and set into action the events that led to her termination. Cf. Hopkins, 851 F. Supp. 2d at 153
(noting that a “perfect storm” of non-retaliatory events, as opposed to retaliation for engaging in
protected activity, led to alleged adverse employment action). The plaintiff has not presented
sufficient evidence for a reasonable jury to find that Howard retaliated against her for exercising
her rights under the FLMA and the DCFLMA or that Howard’s business reason for terminating
the subcontract—namely that the UDC Service Center was the worst-performing Service Center
in the Small Business Network—was not the real and true reason for the termination.20
Consequently, Howard is entitled to summary judgment on counts one and two as a matter of
law.
C. The Plaintiff’s Discrimination Claims Under Title VII And The DCHRA
Counts three and four of the plaintiff’s complaint allege that Howard violated Title VII
and the DCHRA by discriminating against the plaintiff on the basis of her sex and pregnancy.
Compl. ¶¶ 139-59. The Court need not expend much time assessing these claims. See, e.g.,
Elhusseini v. Compass Grp. USA, Inc., 578 F. Supp. 2d 6, 18 (D.D.C. 2008) (Walton, J.)
(“The DCHRA, like Title VII, prohibits certain discriminatory practices by an employer. The
legal standard for establishing discrimination under the DCHRA is substantively the same as
20
The Court’s analysis of the plaintiff’s FLMA interference claim goes hand-in-hand with its analysis of whether
Howard’s termination of the plaintiff was non-retaliatory, and thus lawful. See Pl.’s Opp’n at 27 (citing Miles, 2013
WL 5817657, at *12-13); see also Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1368 & n.3
(D.C. Cir. 2000) (explaining that a claim “is essentially one of retaliation” under the FLMA where plaintiff alleges
that termination was due to maternity leave). In other words, in this case the retaliation and interference claims
under the FLMA must rise and fall together. Because the Court has concluded that Howard’s termination of the
subcontract, which led to the plaintiff’s dismissal from UDC, was not unlawful, the plaintiff’s interference claim
cannot survive summary judgment either.
30
under Title VII.” (citation, and internal alterations, footnote, and quotation marks omitted)). At
the summary judgment stage, the Court must assess these claims using the same burden-shifting
framework outlined above for the plaintiff’s retaliation claims under the FLMA and DCFLMA.
See, e.g., McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010)
(explaining that the “analytical framework for . . . [a] claim of retaliation [under the FLMA] . . .
is essentially the same as that applicable to a claim of discrimination under Title VII”); Gleklen
v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367 (D.C. Cir. 2000) (using
McDonnell Douglas to evaluate claims under the DCHRA and FMLA “simultaneously”).
Application of this framework here yields the same result, as the parties have recycled
their respective arguments regarding the alleged retaliation under the FLMA and DCFLMA. See
Def.’s Summ. J. Mem. at 44-45; Pl.’s Opp’n at 29-30. Howard does not dispute that the plaintiff
has made a prima facie showing of discrimination. See Def.’s Summ. J. Mem. at 44-45 (failing
to dispute prima facie case of discrimination). Rather, Howard relies on the same legitimate
business reason for terminating the Howard-UDC subcontract that the Court discussed above: the
performance, or lack thereof, of the UDC Service Center. Id. at 44. The Court has already found
that, in terminating the UDC Service Center’s subcontract, Howard neither did so with a
discriminatory animus nor treated the UDC Service Center any differently than a similarly
situated Service Center in the Small Business Network. And there is insufficient evidence to
demonstrate that Howard’s proffered business reason is merely pretext for discrimination.
Therefore, no reasonable jury could find that Howard terminated the subcontract on the basis of
31
the plaintiff’s sex or pregnancy.21 Accordingly, the Court will grant summary judgment in favor
of Howard on counts three and four.
IV. CONCLUSION
For the foregoing reasons, the Court grants Howard’s motion for summary judgment.22
SO ORDERED this 16th day of March, 2015.
REGGIE B. WALTON
United States District Judge
21
To the extent the plaintiff sought to base her discrimination claims on Howard’s alleged refusal to respond to an
Equal Employment Opportunity complaint filed by the plaintiff, see Def.’s Summ. J. Mem. at 42 n.41 (citing
Compl. ¶¶ 148, 159), the Court treats these claims as having been abandoned by the plaintiff, as her opposition to
Howard’s summary judgment motion does not explain how that alleged conduct is discriminatory, see, e.g., Noble
Energy, Inc. v. Salazar, 691 F. Supp. 2d 14, 23 (D.D.C. 2010); Shankar v. ACS-GSI, No. 02-cv-1370(RMC), 2006
WL 1073073, at *4 (D.D.C. Apr. 24, 2006), aff’d, 258 F. App’x 344 (D.C. Cir. 2007). The Court could also deem
Howard’s argument that any discrimination claims based on its alleged conduct is unsupported by the record, Def.’s
Summ. J. Mem. at 42 n.41, as conceded, see, e.g., Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003) (Walton, J.) (the Court may treat arguments plaintiff failed to address as conceded in
deciding summary judgment motions), aff’d sub nom., Hopkins v. Women’s Div., Gen. Bd. of Global Ministries,
United Methodist Church, 98 F. App’x 8 (D.C. Cir. 2004). And in any event, the undisputed facts demonstrate that
these claims are unfounded. See Pl.’s Summ. J. Facts ¶ 143.
22
The Court has contemporaneously issued an Order consistent with the Memorandum Opinion.
32