Jones v. Quintana

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDRIA JONES,
Plaintiff,
Civil Action No. 08-0620 (CKK)
v.
JANICE QUINTANA, et al.,
Defendants.
MEMORANDUM OPINION
(October 1, 2013)
Plaintiff Alexandria Jones, a former employee of the District of Columbia Office of
Unified Communications (“OUC”), filed suit against the District of Columbia and Janice
Quintana, the Director of the OUC, alleging that (1) the Defendants retaliated against the
Plaintiff in violation of the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-
615.51 et seq.; (2) Defendant Quintana retaliated against the Plaintiff for exercising her First
Amendment rights in violation of the 42 U.S.C. § 1983; and (3) the Defendants retaliated against
the Plaintiff in violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C.
§§ 12101 et seq. Presently before the Court is the Defendants’ [91] Motion for Summary
Judgment. Upon consideration of the pleadings,1 the relevant legal authorities, and the record as
a whole, the Court finds the Defendants are entitled to summary judgment on all remaining
claims. Accordingly, the Defendants’ motion is GRANTED.
1
Defs.’ Mot. for Summ. J., ECF No. [91]; Pl.’s Opp’n, ECF No. [95]; Defs.’ Reply, ECF
No. [100]; Pl.’s Notice, ECF No. [101].
I. BACKGROUND
A. Factual Background
From 1999 until 2008, the Plaintiff was employed as a 911 operator with the Office of
Unified Communications (“OUC”). Defs.’ Stmt. ¶ 1.2 In 2007, Defendant Janice Quintana was
appointed by then-Mayor Adrian Fenty to serve as the Director of the OUC. Id. ¶ 2. The OUC
“provides centralized, District-wide coordination and management of public safety voice radio
technology and other public safety wireless communication systems and resources.” Id. ¶ 3.
Prior to 2007, the District of Columbia utilized “727-1000” as a telephone number for city
services. Id. ¶ 4. Mayor Anthony Williams, Mr. Fenty’s predecessor, proposed replacing the
727-1000 number with “311.” Id. Immediately after taking office in January 2007, Mayor Fenty
outlined a plan to establish 727-1000 as a 24-hour, 7-day per week “Mayor’s Call Number,”
within six months, and intended to roll-out the 311 number within one year. Id. ¶ 5.
Defendant Quintana testified before the City Council on March 8, 2007, and explained
that OUC was working towards operating the 727-1000 number 24 hours per day, and
“eventually merging the 7-digit telephone number to a 3-digit 311.” Defs.’ Stmt. ¶ 6. Ms.
Quintana further testified that in order to determine best practices, OUC officials visited “311”
and “911” call centers in Chicago and other major cities. Id. ¶ 7; Defs.’ Ex. 1 (Quintana Dep.)
27:6-28:9. She further indicated that OUC officials attended a number of meetings conducted by
2
As indicated in the September 21, 2012, Scheduling & Procedures Order, ECF No.
[89], the Court strictly adheres to the requirements of Local Civil Rule 7(h)(1). As the Court
previously advised the parties, the Court may assume facts identified by the Defendants in their
statement of material facts are admitted unless such facts are controverted in the Plaintiff's
responsive statement. Id. at ¶ 6(d). Thus, the Court shall cite to the Defendants Statement of
Undisputed Material Facts (“Defs.’ Stmt.”) unless a statement is contradicted with evidence, in
which case the Court may cite to the Plaintiff's Response (“Pl.'s Resp. Stmt.”) or directly to the
record, as appropriate.
2
community organizations in the District of Columbia to discuss the merger of the 727-1000 and
311 telephone numbers with citizens of the District. Defs.’ Stmt. ¶ 8.
Ms. Quintana testified before the City Council once again on March 16, 2007, at which
point Councilmember Phil Mendelson inquired as to why it made sense to combine the 727-1000
and 311 numbers. Defs.’ Stmt. ¶ 9. Ms. Quintana indicated that the new system would be
modeled after systems in several major cities, including Baltimore, Chicago, and New York,
would have a dedicated staff for each number, and would allow emergency operators to handle
only 911 calls. Id.3 During the hearing, Mr. Mendelson and Ms. Quintana discussed the
different purposes underlying the 727-1000, 311, and 911 numbers, and various models and
systems for handling emergency and non-emergency police calls. Id. ¶ 10.
On December 14, 2007, the Committee on Public Safety and the Judiciary conducted a
hearing regarding the OUC. The Plaintiff alleges that she and several of her co-workers sought
leave to attend the hearing, but their requests were denied. Jones Aff. ¶¶ 19-20. During the
hearing, Councilmember Yvette Alexander explained she had received complaints from her
constituents regarding confusion as to whether particular situations were considered emergencies
or non-emergencies. Defs.’ Stmt. ¶ 11. Councilmember Mendelson indicated that he had
received similar complaints of confusion. Id. ¶ 13. Ms. Quitana explained that the 727-1000
number would “collapse into 311” and utilized for non-emergencies, while 911 would be used
anytime the caller sought a police, fire, or ambulance response. Id. ¶ 12. The Plaintiff concedes
that the systems routes all calls seeking a police, fire, or ambulance response to the 911
operators, but the Plaintiff “disputes” Ms. Quintana’s testimony insofar as the Plaintiff would
3
The Plaintiff disputes the accuracy of Ms. Quintana’s statement that the District’s
system is modeled after the other cities, but does not dispute that Ms. Quintana testified as
indicated. Pl.’s Resp. Stmt. ¶ 9.
3
characterize some of the calls seeking a police response as “non-emergencies.” Pl.’s Resp. Stmt.
¶¶ 12, 13.
Following the December 14 oversight hearing, the Plaintiff sent an email to several City
Councilmembers asserting that Ms. Quintana “has no ideal [sic] how to run this agency,” and
“has no communications skills.” Defs.’ Ex. 2 (12/14/07 Email Pl. to V. Bonnett, J. Graham, D.
Catania). The Plaintiff also took issue with Ms. Quintana’s plan to require 911 operators to work
10 hour shifts, and asserted that the employees of OUC felt it was a “big mistake” to combine
311 with 727-1000. Id. Specifically, the Plaintiff argued that “a lot of citizens of the District of
Columbia call 311 with emergency situations and [the merger with 727-1000] would delay
service if the call has to be transferred to 911.” Id. The Plaintiff further suggested that “it will
take a long time to get the citizens used to calling 311 for trash service[,] etc.” Id. The Plaintiff
subsequently forwarded the email to City Council Chairman Vincent Gray and Councilmember
Yvette Alexander. Defs.’ Ex. 3 (12/17/07 Email Pl. to V. Gray, Y. Alexander). Councilmember
Jim Graham forwarded the Plaintiff’s email to Councilmember Mendelson. Defs.’ Ex. 4
(12/18/07 Email).
The Plaintiff testified during her deposition that she had previously expressed concerns
regarding the 311 merger to Ms. Quintana during a labor-management partnership meeting in
October 2007. Defs.’ Ex. 5 (Jones Dep.) 55:8-56:1. The Plaintiff indicated to Ms. Quintana that
the merger was problematic because the OUC was understaffed, and the staff had no way of
prioritizing emergency calls within the 911 system. Id. After Ms. Quintana dismissed the
Plaintiff’s concerns, the Plaintiff reportedly told Ms. Quintana that the Plaintiff “would contact
the City Council, the Mayor and anyone outside of the District government who would listen to
[her].” Jones Aff. ¶ 8.
4
On December 28, 2007, the Plaintiff emailed Mayor Fenty, asserting that the
communications center had become “a cluttered warehouse environment,” and alleging that the
privacy of District citizens could be jeopardized by housing other agencies near the 911
operators. Defs.’ Ex. 6 (12/28/07 Email Pl. to V. Gray, V. Bonett). The Plaintiff blamed the
Mayor for these issues, stating “I can’t understand [sic] my Mayor Adrien Fenty has allowed
the 911 center to become an unsecured open facility that can and will jeopardize the citizens [sic]
confidentiality with emergency calls for service.” Id. (emphasis in original). The Plaintiff
alleged that once the 727-1000 and 311 numbers merged, operators from the 727-1000 line
would be forced to take 311 calls “without the benefit of training,” which would “be a huge
negative impact for the citizens with a delay in service, based on the facts [sic] that 727-1000
employees will have to transfer these calls back to the 911 operators.” Id. The Plaintiff
requested a meeting with Mayor Fenty to discuss the issues further. Id. Four days later the
Plaintiff sent an email to Mayor Fenty’s scheduling assistant “to get his availability to speak with
him.” Defs.’ Ex. 7 (1/1/08 Email Pl. to “Scheduler”).
Mayor Fenty visited the OUC on January 7, 2008. The Plaintiff alleges that when she
approached the Mayor, indicating that she had been trying to arrange a meeting with him, Mayor
Fenty yelled at the Plaintiff, asking “what for?” Jones Dep. 65:21-66:6. The Plaintiff did not
give the Mayor her name, and is not sure whether Mayor Fenty knew who she was at that time.
Id. at 66:7-14; 68:3-8. The Plaintiff purportedly responded by asking the Mayor why he was
yelling, and the Mayor responded with “what for?” Id. at 70:21-22. The Plaintiff asked “Sir,
why are you yelling at me? That’s why I don’t want to discuss it on the operation floor,” to
which the Mayor asked “[w]ell what is it?” Id. at 73:5-7, 75:5-8. The Plaintiff explained that
“it’s about the Director and what’s going on at the agency.” Id. at 75:8-10. The Plaintiff alleges
5
the Mayor replied in a loud voice that “She’s the Director. She can do whatever she wants to do.
If you have a problem with the Director, you talk to her about it,” then looked at the Plaintiff and
said “you keep up the hard work” and walked away. Id. at 75:8-17. Ms. Quintana testified
during her deposition that approximately 20 minutes after he left, the Mayor contacted Ms.
Quintana to discuss the incident and instructed Ms. Quintana to fire the Plaintiff for
insubordination. Quintana Dep. 117:17-119:1. In lieu of termination, Ms. Quintana placed the
Plaintiff on administrative leave on January 10, 2008, informing the Plaintiff that the Mayor with
displeased by the Plaintiff’s disrespectful behavior. Defs.’ Stmt. ¶ 21.
The day after she was placed on administrative leave, the Plaintiff gave a televised
interview with a local news station “to let the public know what was going on at the OUC.”
Defs. Stmt. ¶ 22. The parties disagree as to whether other employees appeared on television to
discuss their concerns regarding the proposed agency changes, and whether it was common
practice for OUC employees to be interviewed about changes at the agency. Pl.’s Resp. Stmt.
¶¶ 23, 24. Regardless, Ms. Quintana testified that she had no reaction to the Plaintiff’s interview,
and did not take criticisms of the 311 merger personally because the Mayor wanted to merge the
systems. Quintana Dep. 98:20-99:10; 104: 9-20; but see Jones Aff. ¶ 42 (alleging Ms. Quintana
reacted “in a negative way” whenever the Plaintiff disagreed with Ms. Quintana). Ms. Quintana
testified that as of January 18, she was not aware of the Plaintiff’s prior contact with the Mayor
and Councilmembers regarding OUC, and did not learn that the Plaintiff had contacted
Councilmembers until the Plaintiff testified at an oversight hearing on January 24, 2008.
Quintana Dep. 97:7-98:19.
On January 18, 2008, Ms. Quintana served the Plaintiff with a proposed 30-day
suspension without pay on the grounds the Plaintiff “displayed unprofessional, rude and
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disrespectful conduct” towards the Mayor. Defs.’ Ex. 8 (1/18/08 Advanced Written Notice of
Proposed Suspension of 10 Days or More) at 1. The notice indicated that the Plaintiff had
previously been reprimanded for “[d]iscourteous treatment of the public.” Id. at 2. The Plaintiff
appealed the proposed suspension, and the suspension was ultimately not sustained and
dismissed without prejudice. Defs.’ Stmt. ¶ 34.
The Plaintiff testified before the City Council regarding her concerns with the proposed
311 merger during a hearing on January 24, 2008. Defs.’ Stmt. 28. The Plaintiff testified that
she was “very concerned” that the new system would cause a “serious incident,” but if the
former 727-1000 operators were trained and certified, the new system “may work.” Id. ¶ 29.
The Plaintiff also indicated she believed the proposed suspension was retaliatory, the 911 system
was understaffed, and the new call system led to backlogs of 911 calls. Id. ¶ 28. Several other
individuals testified to their opposition to the new system during the hearing, including Tiffany
Hopper (an OUC employee), and Michael Patterson, the national vice president of the National
Association of Government Employees. Id. ¶ 30. The Plaintiff admits that these individuals
testified regarding
concerns for public safety (Loftus testimony), proper training for call takers
(Patterson and Hopper testimony), background checks for employees (Hopper
testimony), OUC giving the appearance of being fully staffed when it was not
(Hopper testimony), potential delays in answering emergency calls (Hopper and
Loftus testimony), and emergency calls building up in the queue (Hopper
testimony).
Defs.’ Stmt. ¶ 31; see also id. ¶¶ 32-33 (describing other discussions during the hearing).
In early 2008, the operators at the OUC began working 10-hour shifts rather than 8-hour
shifts, in part because a majority of the operators preferred the longer shift length. Defs.’ Stmt.
¶ 35. On April 2, 2008, the Plaintiff submitted to her employer a letter from her treating
therapist, Sonja Watts-Means, asking that the Plaintiff be provided an accommodation under the
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ADA. Defs.’ Ex. 9. The letter did not specify the medical condition or the scope of the
accommodation, except to say that the Plaintiff “has a series of symptoms and relevant treatment
interventions that are sometimes debilitating and impacts [sic] her general sense of wellness,”
therefore she “should not be subjected to undue stress or intense working conditions.” Id. The
OUC informed the Plaintiff that in order to provide the Plaintiff with a reasonable
accommodation, the Plaintiff would have to submit additional information from her medical
professional, including “diagnosis, the associated functional limitations; the duration of the
limitations, the accommodation being recommended and/or that [Plaintiff] is requesting.” Defs.’
Ex. 10 (4/10/08 Ltr. A. Bonner-Evans to Pl.) at 1. OUC indicated that while the Plaintiff’s
request was in review status, she would remain on her regularly scheduled 10-hour shifts, though
the Plaintiff would be permitted to take two hours of leave each shift. Id. The Plaintiff was
advised that “if the business needs of the operations floor change, your request [for leave] may
be denied and you will be expected to work the full 10-hour schedule. Should you not work the
assigned schedule you may be charged AWOL and disciplinary action may be considered.” Id.One week later, Dr. Arnulfo Bonavente, provided OUC with a letter stating that the
Plaintiff “is under my care for a medical problem that necessitates treatment with prescription
medication,” and asked OUC to “allow her to work only eight hours a day while she is
recovering from her medical condition.” Defs.’ Ex. 11 (4/15/08 Ltr.). The Plaintiff’s therapist
submitted a separate request for a reasonable accommodation on April 24, 2008, indicating that
the Plaintiff had been diagnosed with a general anxiety disorder. Defs.’ Ex. 12 (4/24/08
Employee Request for Reasonable Accommodation under the ADA). Dr. Watts-Means
described the Plaintiff’s symptoms as including poor concentration and focus, anxiousness,
fatigue, distractability, and headaches. Id. at 1. The request asked that the Plaintiff be relocated
8
to an office with the fewest distractions and undue demands and that she be permitted to work
only eight hours per day. Id.Between April 24 and May 15, the Plaintiff had a number of meetings with an
administrative officer for the OUC regarding the Plaintiff’s request for an accommodation. See
Defs.’ Ex. 13 (5/15/08 Ltr. A. Bonner-Evans to Pl.) at 1. On May 15, OUC notified the Plaintiff
that it had received all of the necessary medical documentation, but for an estimate of the
duration of the Plaintiff’s functional limitations. Id. The OUC explained that as a 911 operator,
it is essential for the Plaintiff to answer calls, and the emergency calls the OUC receives “require
that [Plaintiff] be able to concentrate, provide quick response service and expeditiously route
calls for police, fire and EMS, and other public safety. Id. Since OUC did not have 8-hour shifts
on the emergency operations side, OUC proposed allowing the Plaintiff ten to fifteen minute
breaks (if needed) every sixty to ninety minutes during her 10-hour shift, in addition to two
fifteen minute breaks and a thirty minute lunch break. Id. at 2. It appears that during the May 12
meeting, the Plaintiff rejected the proposed accommodation involving multiple breaks in lieu of a
shortened shift. Id. As a result, OUC thus offered two additional proposed accommodations: (1)
detailing the Plaintiff to a vacant customer service representative position on the non-emergency
side, which included an 8-hour shift; or (2) holding the Plaintiff’s position as an operator and
allowing the Plaintiff to use accrued leave and leave without pay for up to the maximum amount
of time permitted by District of Columbia personnel regulations. Id.The May 15 letter from OUC indicated the Plaintiff could continue to use annual or sick
leave while the parties finalized the details of the Plaintiff’s accommodation request. Defs.’ Ex.
13 at 2. The Plaintiff, through her union representative, objected to OUC requiring the Plaintiff
to use her accrued leave to work shortened shifts. Defs.’ Ex. 15 (5/23/08 Ltr. M. Patterson to A.
9
Bonner-Evans). The Plaintiff subsequently rejected the proposals set forth in the OUC’s May 15
letter, noting that another 911 operator was permitted to work 8-hour shifts to accommodate
medication taken for a seizure disorder, and the customer service representative position was on
a lower pay scale and scheduled for a peak shift. Defs.’ Ex. 16 (5/26/08 Ltr. Pl. to A. Bonner-
Evans). Several days later, Dr. Bonavente submitted a follow-up letter to the OUC stating the
Plaintiff’s improvement “ha[s] been delayed because of her continued stress,” and reiterated his
recommendation that the Plaintiff be permitted to work only eight hours per day. Defs.’ Ex. 17
(5/29/08 Ltr.).
The OUC advised the Plaintiff on June 5, 2008, that she did not have sufficient leave to
cover her request for two hours of leave in connection with her shift on June 6, 2008, and that
she would be expected to report to work on June 6 as scheduled. Defs.’ Ex. 18 (6/5/08 Denied
Leave Request). The Plaintiff failed to report to work on June 6 and was issued a letter of
warning by Assistant Watch Commander Bennie Coates, advising the Plaintiff that although her
overall performance is generally satisfactory, her failure to appear for a scheduled shift was
“unacceptable” and her demeanor was affecting her “overall productivity and performance.”
Defs.’ Ex. 19 (6/13/08 Ltr. of Warning) at 1. Mr. Coates indicated that “it may be necessary to
take further disciplinary action up to and including dismissal, unless these problems are
corrected.” Id. at 2.
On June 30, 2008, OUC responded to the Plaintiff’s May 26 letter regarding the Office’s
proposed accommodations, discussing the details of the customer service representative position.
Defs.’ Ex. 20 (6/30/08 Ltr. A. Bonner-Evans to Pl.) at 1. The OUC further indicated that after
reviewing the medical documentation submitted by the Plaintiff, “the OUC cannot make a
determination as to whether you have a disability as defined by the ADA,” and asked the
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Plaintiff to provide additional medical information regarding specified topics. Id. at 2.
Nevertheless, the OUC decided to provide the Plaintiff with a temporary workplace modification
in the form of a temporary detail to the customer service representative position in the non-
emergency operations side. The parties held a meeting on July 21, 2008, to further discuss the
Plaintiff’s accommodation request. Defs.’ Stmt. ¶ 49. The Plaintiff refused the transfer to the
non-emergency position, leading OUC to transfer the Plaintiff back to her original 10-hour shift,
and advised the Plaintiff that if she did not work her full 10-hour shift, she would be terminated.
Defs.’ Ex. 21 (7/24/08 Ltr. A. Bonner-Evans to Pl.). As of July 24, 2008, the Plaintiff had not
submitted the additional medical documentation requested by OUC on June 30. Id.The Plaintiff completed informal EEO counseling on July 22, and received a notice of her
right to file a discrimination complaint with the District of Columbia Office of Human Rights.
Defs.’ Stmt. ¶ 50; Defs.’ Ex. 22 (7/22/08 Notice of Right to File). Despite prior warnings from
OUC, the Plaintiff continued to work only eight hours of her ten-hour shifts, and was charged
with being absent without official leave for two hours each shift. Defs.’ Stmt. ¶ 51. The Plaintiff
filed a formal charge of discrimination with the Office of Human Rights on August 7, 2008,
alleging she had been subjected to a hostile work environment and disparate treatment because of
her disability, and was threatened with termination in retaliation for engaging in informal EEO
counseling. Defs.’ Ex. 24 (Charge of Discrimination) at 2-3.
The OUC later served the Plaintiff with a 15-day advanced notice of proposed
termination for insubordination and being absent without official leave. Defs.’ Stmt. ¶ 53; Defs.’
Ex. 25 (8/14/08 Advance Written Notice of Proposed Removal). The Plaintiff, through her
union representative, provided a response to the notice to a hearing officer, alleging the failure to
accommodate the Plaintiff was retaliation in light of the Plaintiff’s July 2008 meeting with an
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EEO counselor. Defs.’ Stmt. ¶ 54; Defs.’ Ex. 26 (8/22/08 Employee Response to Proposed
Action) at 2. The Hearing Officer recommended that the Plaintiff’s proposed termination be
sustained, and OUC terminated the Plaintiff effective September 26, 2008. Defs.’ Ex. 27 (Report
of Hearing Officer); Defs.’ Ex. 28 (Notice of Final Decision Proposed Removal).
B. Procedural History
The Plaintiff filed the present action on April 10, 2008, alleging violations of the D.C.
Whistleblower Protection Act, retaliation in violation of the D.C. Workers’ compensation statute,
and deprivation of the Plaintiff’s First Amendment Rights. See generally Compl., ECF No. [1].
The Plaintiff filed an amended complaint on January 2, 2009, adding additional factual
allegations and two new claims: (1) that the Defendants failed to provide the Plaintiff with a
reasonable accommodation in violation of the ADA; and (2) the Defendants wrongfully
terminated the Plaintiff in retaliation for filing a complaint regarding the Defendants’ purported
violation of the ADA. See generally Am. Compl., ECF No. [19]. The Court granted in part and
denied in part the Defendants’ subsequent motion to dismiss, leaving only the Plaintiff’s claim
under the Whistleblower Protection Act, the First Amendment claim as to Defendant Quintana
only, and the Plaintiff’s ADA retaliation claim. Jones v. Quintana, 658 F. Supp. 2d 183 (D.D.C.
2009).
Consistent with the Court’s September 30, 2009, Memorandum Opinion, the Plaintiff
moved to amend her First Amendment claim, but omitted the remaining claims from the
proposed second amended complaint. Pl.’s Mot. to Am., ECF No. [32]. It appeared from the
Plaintiff’s motion that she was abandoning her remaining claims, but to avoid any ambiguity, the
Court ordered the Plaintiff to re-file a second amended complaint including “all facts and
remaining legal claims at issue.” 10/5/09 Minute Order. The Plaintiff did not submit a revised
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second amended complaint. Thus, the Court assumed the Plaintiff was proceeding only with her
First Amendment claim, and later granted as conceded the Defendants’ motion to dismiss the
First Amendment claim. 10/23/09 Minute Order; 10/26/09 Mem. Op. & Order, ECF Nos. [36,
37].
The Plaintiff filed a notice of appeal of the Court’s decision granting the Defendants’
motion to dismiss as conceded. Notice of Appeal, ECF No. [39]. The United States Court of
Appeals for the District of Columbia Circuit held the appeal in abeyance to allow the Plaintiff to
seek reconsideration of the Court’s order. 4/20/10 Order, ECF No. [41]. After the parties
briefed the Plaintiff’s motion to reconsider, the Court indicated that it would grant the motion if
the D.C. Circuit remanded the matter. 3/27/11 Mem. Op. & Order, ECF No. [49]. The D.C.
Circuit subsequently dismissed the appeal and remanded the case to this Court, at which point
the Court instructed the Plaintiff to file a Third Amended Complaint. 5/8/11 Am Order, ECF
No. [52]; see generally Third Am. Compl., ECF No. [57]. The Third Amended Complaint
asserts three separate claims. Count I alleges that Defendant Quintana’s decision placing the
Plaintiff on administrative leave, proposing a suspension, and the Defendants’ termination of the
Plaintiff constituted retaliation against the Plaintiff for protected disclosures under the
Whistleblower Protection Act, namely, the Plaintiff’s December 2007 and January 2008 emails
to the Mayor and members of the City Council. Id. ¶¶ 45-49.4 Count III contends that Ms.
Quintana placed the Plaintiff on administrative leave, proposed suspending her, and later
terminated the Plaintiff in retaliation for the Plaintiff speaking to the City Council and the media
4
Each of the Counts set forth in the Third Amended Complaint also allege the Plaintiff’s
suspension was retaliatory, but as the undisputed record indicates, the proposed suspension was
dismissed on appeal, and there is no evidence the Plaintiff ever served any portion of the
suspension. Defs.’ Stmt. ¶ 34.
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regarding the Plaintiff’s concerns with respect to the 311 merger. Id. ¶¶ 50-54. Count V alleges
that the Defendants terminated the Plaintiff in retaliation for engaging in informal EEO
counseling in July 2008 regarding the Defendants’ alleged failure to grant the Plaintiff an
accommodation, in violation of the ADA. Id. ¶¶ 55-58. Following the close of discovery, the
Defendants filed the present motion for summary judgment, which is now ripe for consideration
by the Court.
II. LEGAL STANDARD
“The court shall grant summary judgment 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).
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials); or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When
considering a motion for summary judgment, the court may not make credibility determinations
or weigh the evidence; the evidence must be analyzed in the light most favorable to the
nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
14
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,
571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a
factual dispute, by itself, is insufficient to bar summary judgment. See Liberty Lobby, 477 U.S.
at 248. “Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. For a dispute about a material
fact to be “genuine,” there must be sufficient admissible evidence that a reasonable trier of fact
could find for the nonmoving party. Id. The adverse party must “do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis
in the record cannot create a genuine dispute. See Ass’n of Flight Attendants–CWA v. U.S. Dep’t
of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
III. DISCUSSION
A. Whistleblower Protection Act Claim
The District of Columbia Whistleblower Protection Act prohibits any “supervisor” from
threatening to take or taking a prohibited personnel action or otherwise retaliating against an
employee because of the employee's “protected disclosure.” D.C. Code § 1–615.53. A
“protected disclosure” is defined as:
any disclosure of information, not specifically prohibited by statute, by an
employee to a supervisor or a public body that the employee reasonably believes
evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
15
(C) Abuse of authority in connection with the administration of a
public program or the execution of a public contract;
(D) A violation of a federal, state, or local law, rule, or regulation,
or of a term of a contract between the District government and a
District government contractor which is not of a merely technical
or minimal nature; or
(E) A substantial and specific danger to the public health and
safety.
Id. § 1–615.52(a)(6). “A ‘protected disclosure’ under the [statute] is one that the employee
‘reasonably believes' evidences one or more of the circumstances delineated in D.C. Code § 1–
615.52(a)(6)(A)–(E) (2001).” The “‘employee must disclose such serious errors by the agency
that a conclusion the agency erred is not debatable among reasonable people.’” Wilburn v.
District of Columbia, 957 A.2d 921, 925 (D.C. 2008) (quoting White v. Dep’t of the Air Force,
391 F.3d 1377, 1382 (Fed. Cir. 2004)). The Plaintiff alleges that her December 14 and 17, 2007
emails to members of the City Council, her December 28, 2007, and January 1, 2008, emails to
Mayor Fenty, and her January 7, 2008, conversation with Mayor Fenty constituted “protected
disclosures” for purposes of the Whistleblower Protection Act. Third Am. Compl. ¶¶ 45-48.
The Plaintiff thus argues that the decision to place the Plaintiff on administrative leave,
proposing that the Plaintiff be suspended, and ultimately terminating the Plaintiff constituted
retaliatory personnel actions. Id. ¶ 49.
The Defendants move for summary judgment regarding the Plaintiff’s Whistleblower
Protection Act claim on a number of grounds, including that the Plaintiff’s Whistleblower
Protection Act claim fails because the Plaintiff’s disclosures simply contributed to the ongoing
public debate. In Williams v. District of Columbia, 9 A.3d 484 (D.C. 2010), the D.C. Court of
Appeals confirmed what it had previously implied: a disclosure is not protected if the facts
alleged are “public knowledge” and there has been “vocalized public concern about the very
16
information that [plaintiff] conveyed,” although the court stopped short of limiting protected
disclosures to “instances in which no one in the general public is aware of the abuse.” Id. at 489.
The Defendants allege that the Plaintiff’s statements did not constitute protected disclosures
because the Plaintiff was simply “giving her opinion on a policy issue that was being debated by
the government and the public,” and that Defendant Quintana had identified the same issues
discussed by the Plaintiff during Quintana’s earlier discussions with the City Council regarding
the proposal during public hearings---several of which pre-date the Plaintiff’s first protected
disclosure by nearly nine months. Defs.’ Mot. at 44-45; see supra, Section I.A., at 3.
The Plaintiff does not dispute this contention, except to say that “[t]his Court, in its
September 30, 2009 Memorandum, held that the statements by Plaintiff were protected
disclosures pursuant to the WPA.” Pl.’s Opp’n at 29. The Plaintiff’s argument refers to the
Court’s decision regarding the Defendants’ motion to dismiss the Amended Complaint. See
generally Jones, 658 F. Supp. 2d 183. The Defendants moved to dismiss the Plaintiff’s
Whistleblower Protection Act claim on three grounds. First, the Defendants argue the Plaintiff
could not pursue a claim against Defendant Quintana in her individual capacity under the
Whistleblower Protection Act. Id. at 198. The Court agreed with several prior decisions in this
District finding the Act does not create a private right of action against individual defendants. Id.Second, the Defendants argued the Plaintiff’s disclosures were not protected under the Act
insofar as they did not evidence “gross mismanagement,” “abuse of authority,” or any of the
other circumstances set forth in D.C. Code § 1–615.52(a)(6)(A)–(E). Id. at 199. The Court
found that allegations in the Amended Complaint were “sufficient to suggest that she reasonably
believe[d] her emails evidenced [a] substantial and specific danger to the public health and
safety,” and thus sufficiently alleged “protected disclosures” for purposes of a motion to dismiss.
17
Id. at 199-200. Third, the Defendants suggested the Amended Complaint failed to sufficiently
allege that the Plaintiff’s protected disclosure were a contributing factor in the prohibited
personnel actions allegedly taken against the Plaintiff. Id. at 200. Noting that the Whistleblower
Protection Act broadly defines “contributing factor” to mean “any factor which, alone or in
connection with other factors, tends to affect in any way the outcome of the decision,” D.C. Code
§ 1–615.52(a)(2), the Court found that in the context of a motion to dismiss, it reasonably could
be inferred from the short timeframe between the Plaintiff’s protected activity in December 2007
and the personnel action that the Plaintiff’s protected disclosures were a contributing factor in the
Defendants’ decision to place the Plaintiff on administrative leave on January 10, 2008. Id. The
Defendants did not argue, and thus the Court did not address, the issue presented here: whether
the Plaintiff’s statements merely addressed an issue already the subject of a public discussion.
The Plaintiff offers no response to the Defendants’ argument that the Plaintiff simply provided
her opinion regarding facts previously revealed as part of the public discourse on the issue.
Therefore, the Defendants are also entitled to summary judgment on the Plaintiff’s
Whistleblower Protection Act claim.
B. First Amendment Retaliation Claim
It is true that individuals do not “relinquish the First Amendment rights they
would otherwise enjoy as citizens” when they accept employment with the
government. . . . However, “the State has interests as an employer in regulating
the speech of its employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.”
Navab–Safavi v. Glassman, 637 F.3d 311, 315 (D.C. Cir. 2011). “To balance these competing
interests in First Amendment retaliation claims by government employees,” the Court applies a
four-factor test to determine whether an employer retaliated against an employee for the
employee’s exercise of her First Amendment rights:
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First, the public employee must have spoken as a citizen on a matter of public
concern. Second, the court must consider whether the governmental interest in
promoting the efficiency of the public services it performs through its employees
outweighs the employee’s interest, as a citizen, in commenting upon matters of
public concern. Third, the employee must show that [his] speech was a
substantial or motivating factor in prompting the retaliatory or punitive act.
Finally, the employee must refute the government employer’s showing, if made,
that it would have reached the same decision in the absence of the protected
speech.
Bowie v. Maddox, 642 F.3d 1122, 1133 (citation omitted). The Plaintiff alleges in Count III of
the Third Amended Complaint that she spoke as a citizen on a matter of public concern by
“voic[ing] her concerns about [sic] safety of D.C. residents to the city council and speak[ing]
with the media,” and that her speech was a motivating factor in the Defendants’ decisions to
place the Plaintiff on administrative leave, propose a 30-day suspension, and finally terminate
the Plaintiff. Third Am. Compl. ¶ 51. The Defendants move for summary judgment on the
Plaintiff’s First Amendment claim, arguing, among other things, that the Plaintiff failed to
proffer any evidence to suggest that her protected speech was a motivating factor in any of the
allegedly retaliatory acts. The Court agrees that the Plaintiff failed to proffer sufficient evidence
from which a reasonable jury could conclude that the Plaintiff’s protected speech was a
motivating factor in prompting the Defendants’ allegedly retaliatory conduct.
As a threshold matter, the Court notes that for the first time in her opposition brief, the
Plaintiff alleges she also engaged in protected speech during the October 2007 labor-
management meeting. Pl.’s Opp’n at 17. This allegation is nowhere to be found in the Third
Amended Complaint, nor could one reasonably infer from the reference to speech before the City
Council and the media that the Plaintiff’s claim encompassed a meeting months prior involving
neither the City Council nor the media. The Plaintiff cannot amend her complaint to
significantly alter the scope of her First Amendment retaliation claim by way of her opposition to
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the Defendants’ dispositive motion. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal
Service, 297 F.Supp.2d 165, 170 (D.D.C. 2003) (“It is axiomatic that the Plaintiff cannot amend
her Complaint by the briefs in support of or in opposition to a motion for summary judgment.”).
For the same reason, the Plaintiff cannot use her opposition to allege new retaliatory conduct by
the Defendants. See Pls.’ Opp’n at 21 (alleging that Defendant Quintana’s knowledge of the
Plaintiff’s protected speech “predated the other adverse actions against Ms. Jones, from the
denial of a number for her to submit a worker’s compensation claim . . . , to the rejection of her
request for a reasonable accommodation under the ADA to the imposition of AWOL [] status”).
Therefore, in analyzing the Plaintiff’s First Amendment retaliation claim, the Court considers
only the protected speech identified in Plaintiff’s opposition as protected speech and alleged in
the Third Amended Complaint, specifically: (1) the Plaintiff’s December 14 and 17, 2007, emails
to members of the City Council, Pl.’s Opp’n at 15; (2) the Plaintiff’s December 28, 2007, email
to Mayor Fenty, id. at 15; and (3) the Plaintiff’s January 11, 2008, interview with a local news
station, id. at 16.
The Defendants contend that the Plaintiff fails to raise a genuine issue of fact with respect
to causation in large part because Ms. Quintana was not aware of the Plaintiff’s protected activity
until late January 2008. The Plaintiff suggests Ms. Quintana was aware of the Plaintiff’s
protected activity for five reasons. The Court addresses each issue seriatim. First, the Plaintiff
argues Ms. Quintana was aware of the Plaintiff’s protected activity in December 2007 and
January 2008 because several months prior, in October 2007, the Plaintiff told Ms. Quintana that
the Plaintiff intended to contact the City Council. By her own admission the Plaintiff did not
contact any member of the City Council for at least six weeks, and the Plaintiff does not allege
that she ever informed Ms. Quintana that the she (the Plaintiff) actually contacted members of
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the City Council.
Second, the Plaintiff alleges Ms. Quintana denied the Plaintiff and several of her co-
workers leave to attend an oversight hearing before the City Council. The Plaintiff alleges that
“[i]n December 2007, following [her] contacts with several City [C]ouncil members” she sought
leave to attend the hearing, but “was told that Ms. Quintana personally denied [her] leave so that
[she] could not testify at the Council [h]earing.” Jones Aff. ¶ 19; Pl.’s Opp’n at 23 (indicating
the request for leave was made “little more than three weeks” before January 10, 2008).
Initially, it is unclear when this exchange might have taken place because the only City Council
hearings in this timeframe discussed by the parties are (1) the December 14, 2007, hearing,
which the Plaintiff attended and which preceded the Plaintiff’s protected activity; and (2) the
January 28, 2008, hearing at which the Plaintiff testified. Regardless, this argument is misplaced
for the same reason as the Plaintiff’s October 2007 statement: setting aside the fact this statement
is hearsay,5 at most it establishes that Ms. Quintana knew the Plaintiff may have wanted to speak
to the City Council about the 311 merger, but does not suggest that Ms. Quintana new the
Plaintiff had already contacted several City Councilmembers before seeking leave to attend the
oversight hearing.
Third, the Plaintiff alleges, without further elaboration, that she has learned that City
Councilmember Mendelson and Mayor Fenty had a policy of forwarding complaints to the
agencies at issue in the complaints. The Plaintiff offers no documentation or other evidence to
support her assertion that she learned (from an unknown source) that Mayor Fenty and
Councilmember Mendelson had a policy of forwarding complaints to relevant District agencies,
5
The Plaintiff does not even attempt to argue in her opposition that any of the hearsay
statements in her declaration could be presented in a form admissible at trial. See Wilburn v.
Robinson, 480 F.3d 1140, 1142-42 (D.C. Cir. 2007).
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nor does the Plaintiff offer any evidence that either Mayor Fenty or Councilmember Mendelson
forwarded any of the Plaintiff’s emails to Defendant Quintana. To the contrary, Ms. Quintana
testified that she did not receive any emails nor was otherwise informed by the City Council of
the Plaintiff’s concerns. Quintana Dep. 97:7-12; 98:6-15. Not only is the Plaintiff’s assertion
hearsay, without any information as where the Plaintiff learned of the alleged policies, the Court
cannot determine how many levels of hearsay might be involved.
Fourth, the Plaintiff alleges that during the phone call between Mayor Fenty and Ms.
Quintana following the January 7 incident, Mayor Fenty must have mentioned the Plaintiff’s
prior correspondence with the Mayor. This allegation is pure speculation. Plaintiff’s counsel
questioned Ms. Quintana regarding her conversation with the Mayor, and relevant exchange
from Ms. Quintana’s deposition is set forth below:
Q: And what do you recall about -- I mean if you could recount for me
as much of that conversation as you can.
A: He just said what's the young lady's name I was talking to, I want
you to terminate her because I think that was insubordinate, and
that was that.
Q: Did you ask him what he thought was insubordinate?
A: No.
Q: Did you see anything that you thought was insubordinate?
A: Yes.
Q: What was that?
A: I think Ms. Jones’ behavior, yelling at him and taking her headset
off while she was still logged on to take 911 calls.
Q: So her behavior? And how about the mayor?
A: I think he was angry about it, I mean obviously, yes.
Quintana Dep. 118:17-119:15. Nothing in the record suggests Mayor Fenty ever stated to Ms.
22
Quintana that the Plaintiff had previously contacted him, nor is there anything to suggest Mayor
Fenty and Ms. Quintana had any discussion regarding the contents of the Plaintiff’s emails to the
Mayor.
The Plaintiff’s fifth argument is similarly speculative. The Plaintiff indicates that she
contacted a local television news station on January 7, to discuss the 311 merger. Jones Aff.
¶ 35. At some point between January 7 and January 11, the Plaintiff was interviewed by a
reporter at the station. Id. ¶¶ 36-38. The Plaintiff asserts that the reporter told her that the facts
she told the reporter would need to be verified. Id. ¶ 43. The Plaintiff was placed on
administrative leave on January 10---her first day back to work after the incident involving
Mayor Fenty---and the interview aired on January 11. The Plaintiff offers no evidence, apart
from her own speculation, to suggest that the reporter contacted Ms. Quintana, much less that he
informed Ms. Quintana that the Plaintiff had expressed her concerns regarding the 311 merger to
the reporter.
To be fair, causation is often a question for the jury. Hall v. Ford, 856 F.2d 255, 258
(D.C. Cir. 1988) (citations omitted). Nevertheless, to avoid summary judgment the Plaintiff
must show that there is “evidence (either of a direct or indirect nature) from which a reasonable
jury could find the required causal link between the protected disclosures . . . and the allegedly
retaliatory actions.” Williams v. Johnson, 701 F.Supp.2d 1, 17 (D.D.C. 2010). As the non-
moving party the Plaintiff must demonstrate more than “the mere existence of a scintilla of
evidence” in support of her position. Liberty Lobby, 477 U.S. at 252. Thus, the Court considers
the (albeit speculative) evidence the Plaintiff offers to show when Ms. Quintana became aware
of the Plaintiff’s protected speech in combination with the other evidence the Plaintiff proffers to
show her protected speech was a motivating factor in the three specified personnel actions. The
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Court examines each of the personnel actions in turn.
With respect to Ms. Quintana’s January 10, 2008, decision to place the Plaintiff on
administrative leave, as noted above the Plaintiff offers nothing but speculation and
unsubstantiated hearsay to establish Ms. Quintana was aware of the Plaintiff’s protected speech
as of that date. Moreover, Ms. Quintana testified that the decision to place the Plaintiff on
administrative leave was made in response to Mayor Fenty’s request that Ms. Quintana terminate
the Plaintiff. Quintana Dep. 118:2-119:4; 125:14-126:18. The Plaintiff suggests Ms. Quintana’s
decision was questionable because Ms. Quintana based the decision “on her asserted
conversation where she was told in one sentence that Ms. Jones was insubordinate when there is
not a scintilla of evidence of any insubordinate behavior.” Pl.’s Opp’n at 24. The Plaintiff fails
to articulate why Ms. Quintana should have sought additional information from the Mayor when
Ms. Quintana personally witnessed the incident in question. Quintana Dep. 119:2-21. No
reasonable jury could conclude from this record that the decision to place the Plaintiff on paid
administrative leave on January 10 was in retaliation for the Plaintiff’s protected speech.
Turning to Ms. Quintana’s January 18 decision to suspend the Plaintiff without pay for
insubordination (referring to the January 7 incident), the Plaintiff emphasizes the short time
frame between the airing of her television interview (January 11) and the issuance of the notice
of proposed suspension (January 18). The Defendant argues suspension was a result of the
January 7 incident involving Mayor Fenty. The record indicates that on January 10, Ms.
Quintana placed the Plaintiff on administrative leave due in light of the Mayor’s request that she
be terminated for insubordination, but was not sure if the Plaintiff’s actions “necessarily
warranted termination.” Quintana Dep. 125:17-126:7. In a similar context, the Supreme Court
has held that “[e]mployers need not suspend previously planned [personnel actions] upon
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discovering that a Title VII suit has been filed, and their proceeding along lines previously
contemplated, though not yet definitively determined, is no evidence whatever of causality.”
Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 272 (2001). In Breeden, the employer
announced that she was contemplating transferring the plaintiff, but did not transfer the plaintiff
until after the employer learned the plaintiff had filed a discrimination law suit. Id. The Court
ruled that the fact the employer became aware of the plaintiff’s lawsuit one month before the
transfer “is immaterial in light of the fact that [the employer] concededly was contemplating the
transfer before it learned of the suit.” Id. Here, the undisputed evidence indicates Ms. Quintana
was contemplating disciplining the Plaintiff by way of termination as of January 10. Under
Breeden, the fact that Ms. Quintana watched the Plaintiff’s interview with a local news station
before issuing the notice of proposed suspension is immaterial because Ms. Quintana was
contemplating a more severe sanction before learning of the Plaintiff’s protected activity.6
Curiously absent from the Plaintiff’s discussion of her First Amended retaliation claim is
any discussion of the Plaintiff’s termination, which was first proposed by the Defendants on
August 14, 2008---over seven months after the Plaintiff’s last protected speech regarding the 311
merger. The Plaintiff concedes that under Breeden, a six month gap cannot support an inference
of causation. Pl.’s Opp’n at 23; Breeden, 532 U.S. at 273 (citing with approval cases finding
three and fourth month gaps insufficient to support an inference of causation); see also Payne v.
District of Columbia, 741 F. Supp. 2d 196, 219-20 (D.D.C. 2010) (finding eight month gap
insufficient to support inference of causation regarding plaintiff’s First Amendment retaliation
claim). Moreover, the Plaintiff fails to respond to the Defendants’ contention that it would have
6
See also Anderson v. Ramsey, No. 04-56, 2006 WL 1030155, at *12 (D.D.C. Apr. 19,
2006) (finding the same holding in Breeden instructive in the context of a First Amendment
retaliation claim).
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terminated the Plaintiff even absent any protected speech because of the Plaintiff’s repeated
AWOL status, thus conceding the argument. Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when
a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised
by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”). Accordingly, the Defendants are entitled to summary judgment on all aspects of
the Plaintiff’s First Amendment Retaliation claim.
C. Americans with Disabilities Act Retaliation Claim
The Americans with Disabilities Act provides that “[n]o person shall discriminate against
any individual because such individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
The Plaintiff alleges in Count V of the Third Amended Complaint the Defendants terminated the
Plaintiff in retaliation for her July 2008 meeting with an EEO counselor regarding the
Defendant’s alleged failure to accommodate the Plaintiff’s disability. Third Am. Compl. ¶¶ 55-
58. As with the prior claims, the Defendants seek summary judgment with respect to the
Plaintiff’s ADA retaliation claim on a number of grounds, only one of which the Court need
address, namely, the Plaintiff’s failure to exhaust her administrative remedies.
“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must
exhaust their administrative remedies by filing an EEOC charge and giving that agency a chance
to act on it.” Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (citing 42
U.S.C. § 12117(a)). “[O]rdinarily receipt of a notice of right-to-sue letter is a condition
precedent” to filing suit under the ADA. Dahlman v. Am. Ass’n of Retired Persons, 791 F. Supp.
262d 68, 75 (D.D.C 2011). The Defendants argue the Plaintiff failed to exhaust her administrative
remedies with respect to her ADA retaliation claim because the Plaintiff filed suit before the
District of Columbia Office of Human Rights issued the Plaintiff a right-to-sue letter regarding
the claims.
The Plaintiff contacted an EEO counselor in July 2008 in connection with the
Defendants’ alleged failure to accommodate the Plaintiff’s disability. The July 24, 2008, letter
from OUC to the Plaintiff advised the Plaintiff that she may be terminated if she did not work her
full ten-hour shifts. The Plaintiff filed a charge of discrimination with the Office of Human
Rights on August 7, 2008, alleging the Defendants subjected the Plaintiff to a hostile work
environment and discriminated against her on account of her disability, and further claimed that
the July 24 letter was issued in retaliation for the Plaintiff consulting an EEO counselor, in
violation of the District of Columbia Human Rights Act. The Plaintiff was ultimately terminated
on September 26, 2008. In October 2008, the Plaintiff amended her charge of discrimination to
include retaliatory discharge in violation of the Americans with Disabilities Act. The Plaintiff
amended her initial complaint on January 2, 2009, to include the present retaliation claim under
the ADA, at which point the Office of Human Rights had yet to make any determination as to the
Plaintiff’s charge of discrimination. Accordingly, on June 24, 2009, the Office of Human Rights
dismissed the Plaintiff’s charge because it was “informed that a similar charge” was filed with
this Court.
The Plaintiff does not dispute the fact that she has never received a right-to-sue letter
regarding her ADA retaliation claim. Instead, the Plaintiff suggests that she never sought to
bring a retaliation claim pursuant to the ADA, but rather intended to bring a claim for retaliation
in violation of the District of Columbia Human Rights Act. Pl.’s Opp’n at 25. The Plaintiff
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explains:
When Plaintiff was terminated, she moved to amend her complaint to add the
termination and the failure to reasonably accommodate her. The termination claim
was categorized as retaliation for having filed a disability claim. The filing was
confused and the terminology of an ADA claim became part of the reference. The
Court, in its September 30, 2009, decision, relying on the amended complaint, sought
to clarify the situation stating the retaliation claim was pursuant to the Americans
With Disabilities Act, because she alleged that she was terminated one month after
filing a claim that the OUC had violated the ADA. The Amended Complaint was in
error. As seen now from Defs’ Exh 24, Ms. Jones filed a complaint about disability,
but did not mention the ADA. [S]ince it was filed with OHR and since it was based
on the EEO Counselor’s Notice of Right to File, which granted her permission to file
a DCHRA claim, Defs’ Exh 22, more accurately, the retaliation is from a DCHRA
filing.
Pl.’s Opp’n at 25. Whatever confusion might have existed in 2009, nothing in the Plaintiff’s
opposition excuses the fact she explicitly invoked the American with Disabilities Act in her
Third Amended Complaint---the operative complaint for purposes of the Defendants’ motion.
Count V of the Third Amended Complaint, in which the Plaintiff alleges she was fired in
retaliation for filing a discrimination complaint in August 2008, does not specify under which
statute the Plaintiff seeks relief. Third Am. Compl. ¶¶ 55-58. However, in her prayer for relief,
the Plaintiff seeks “[a]n order declaring defendants’ actions to be retaliation against Ms. Jones in
violation of the Americans with Disabilities Act of 1990, as amended,” and “[a]n order enjoining
defendants from continuing to discriminate and/or retaliate against Ms. Jones regarding her
reasonable accommodations” under the ADA. Id. at 10 (emphasis added). The only reference to
the District of Columbia Human Rights Act in the entirety of the Third Amended Complaint
appears in the tenth paragraph of the prayer for relief, which seeks “[a]n order granting plaintiff
attorney’s fees pursuant to the D.C. Whistleblower statue; 42 U.S.C. 2000 et[] [s]eq,[ ]the
District of Columbia’s Human Rights Act, the federal Access to Justice Act and 42 U.S.C.
§1983.” Id. The Plaintiff cannot amend her claim to state a cause of action under a different
28
statute by way of her opposition brief. Arbitraje Casa de Cambio, S.A. de C.V., 297 F. Supp. 2d
at 170. Therefore, the Defendants are entitled to summary judgment on the Plaintiff’s ADA
retaliation claim.
IV. CONCLUSION
For the foregoing reasons, viewing the evidence in the light most favorable to the
Plaintiff, the Court finds the Plaintiff failed to raise an genuine issue of material fact with respect
to any of the claims in Third Amended Complaint. The Plaintiff did not respond to the
Defendants’ contention that the Plaintiff’s conduct did not amount to a protected disclosure
under the District of Columbia Whistleblower Protection Act because the Plaintiff’s comments
conveyed information already at issue in the public debate concerning the 311 merger. The
Plaintiff failed to produce sufficient evidence from which a reasonable jury could conclude that
the Plaintiff’s protected speech was a motivating factor in the decision to place the Plaintiff on
administrative leave, proposed suspension of the Plaintiff, or the Defendants’ ultimate
termination of the Plaintiff. Finally, the Plaintiff concedes that she filed her claim for retaliation
in violation of the Americans with Disabilities Act without first receiving a right to sue notice,
and thus failed to exhaust her administrative remedies. Accordingly, the Defendants’ [91]
Motion for Summary Judgment is GRANTED. An appropriate Order accompanies this
Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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