Sharma v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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RAMESH SHARMA, }
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Plaintiff, }
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v. } Case No. 1:10-cv-1033(GK}
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DISTRICT OF COLUMBIA, }
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Defendant. }
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MEMORANDUM OPINION
Plaintiff Ramesh Sharma ("Plaintiff" or "Sharma") brings
this suit against his former employer, the District of Columbia
("Defendant" or "the District"), under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; the Age
Discrimination in Employment Act of 1967 ( "ADEA'') , 2 9 U.S. C. §
621 et seq.; and the District of Columbia Whistleblower
Protection Act ("DCWPA"), D.C. Code § 1-615.51.
This matter is before the Court on Plaintiff's Motion for
Partial Summary Judgment [Dkt. No. 96] and Defendant's Cross
Motion for Summary Judgment [Dkt. No. 107]. Upon consideration
of the Motions, Oppositions [Dkt. Nos. 100, 110-2], Replies
[Dkt. Nos. 104, 113] 1 Plaintiff's Notice of Supplemental
Authority [Dkt. No. 120], and the entire record herein, and for
the reasons stated below, Plaintiff's Motion for Partial Summary
Judgment shall be denied and the District's Cross Motion for
Summary Judgment shall be granted in part and denied in part.
I . Background
A. Factual Background 1
Sharma, a United States citizen of Asian-Indian origin, was
previously employed by the District of Columbia's Office of
Contracting & Procurement ( "OCP" or the "Agency") as a Senior
Contract Specialist in the Construction Design and Building
Renovation ("CDBR") Group. See Def.'s Resp. to Pl.'s Statement
of Material Facts ("SOMF") , 8 [Dkt. No. 100]
Sharma alleges that, at his initial interview for this
position in January 2003, Karen Hester ("Hester"), the hiring
official and then-Manager of Contracting, "asked [him] if he was
willing to do all types of work she would assign him, including
clerical, typing, and filing work, because she thought most
people from his part of the world (South Asia), like India,
Pakistan, and Bangladesh[,] were very lazy and made poor
supervisors or leaders [.]" Third Amended Complaint ( "TAC") , 11
[Dkt. No. 50] . The District denies this allegation. Answer to
TAC ("Answer") , 11 [Dkt. No. 52].
1
Unless otherwise noted, the facts are undisputed and drawn from
either the pleadings or the parties' Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
-2-
In any event, Hester hired Sharma, who was 64 years of age
at the time, and, on May 26, 2004, she evaluated his performance
as "outstanding" in four out of five performance categories.
She elaborated that:
[Sharma] brings a vast amount of know 1 edge and
experience in contracting He is extremely
diligent, does not need supervision and exercises a
high degree of judgment in carrying out assignments
that are sensitive and highly visible.
Ex. to Def.'s Opp'n (performance evaluation dated May 26,
2004) [Dkt. No. 100 at ECF pp. 77-78]. In the "Personal
Relations" category, however, Hester judged Sharma to be only
"satisfactory" I" acceptable," and she cautioned that he "should
be careful not to offend others in his zeal for timeliness and
thoroughness." Id.In June 2005, Hester again issued Sharma a glowing
performance evaluation, rating him as "outstanding" in four out
of five categories and observing that he "is proactive in
analyzing and resolving problems" and "takes the initiative to
do all that he can do to complete a project or assignment in a
timely manner, including hours of work without compensation."
Ex. to Def. 's Opp' n (performance evaluation dated June 2005)
[Dkt. No. 100 at ECF pp. 79-80]. She opined again, however,
that Sharma's "Personal Relations" were only "satisfactory" and
-3-
she indicated that he "needs improvement 11
in cooperating with
his co-workers. She explained:
In his zeal for timeliness, thoroughness and integrity
Mr. Sharma has offends [sic] internal and external
customers on occasion. In this regard, Mr. Sharma
must improve the content and tone of his
2
communications with internal and external customers.
Id.Sharma's relationships with customers did not, however,
improve. Sharma contends that the reason for the lack of
improvement was that his supervisors, co-workers, and customers
repeatedly "pressured 11 him to find ways to "bypass the
District's procurement regulations`` and "rubber- stamp 11 inflated
and wasteful contracts, which he refused to do. See generally
TAC ~ 18. He alleges, for example, that he refused an
influential lobbyist's demand that he process a $1 million claim
evaluated to be "worth only about $100,000, not about $1
million, as claimed by the contractor[,] 11
because the contractor
"failed to provide the required justification [and] proof of
costs [.] 11
Id. `` 14-16. He also objected to alleged "[e]fforts
by [OCP Deputy Director, Peter May, and OCP Project Manager,
2
Hester appears to have used the term "internal customers 11 to
refer to employees of District of Columbia agencies other than
OCP and the term "external customers 11 to refer to contractors
and other non-District of Columbia persons. See Pl.'s Mot. Ex.
10 (deposition tr. of Karen Hester ("Hester tr. I")) at 103:7-10
[Dkt. No. 96-13].
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Tony Esse] to steer [a] Conceptual Design contract for the
Consolidated Forensics Lab (CFL) project to a pre-selected
contractor at highly inflated prices[.]" Id. ~ 18. In
addition, he complained about a Department of Health official's
alleged attempt to coerce him into ignoring procurement rules
and a general lack of "cost control on many of the
contracts administered by Mr. Esse." Id.On July 11, 2 005, Sharma filed his first "whistleblower
complaint" with the D.C. Auditor and D.C. City Council,
complaining of these and other alleged violations. Id. On
March 17, 2006, he filed several more "whistleblower complaints"
of the same type with the D.C. Inspector General's Office, the
D.C. Auditor, and the D.C. City Council. Id. ~ 30. His co-
workers and supervisors, in turn, complained that he was "not
helpful" and requested that he be removed from certain projects.
Id. `` 26, 29, 30.
In August 2006, after Sharma refused to comply with an
order from Ms. Hester to "do whatever [Deputy Director May and
Project Manager Esse] want you to do to process" certain
contracts, Hester issued him a letter of admonishment stating,
among other things, that he had "poor customer relations,"
exhibited "disruptive behavior," and was insubordinate. Id. ``
58-60, 67, 68. Thereafter, on October 18, 2006, Sharma filed
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additional complaints with the D.C. Mayor's Office, the United
States Department of Justice, the D.C. Inspector General, the
D.C. Auditor, the United States Equal Employment Opportunity
Commission ("EEOC") and the D.C. Office of Human Rights alleging
retaliation, discrimination, and violations of federal and D.C.
whistleblower and false claims laws. Id. ~ 69.
On December 12, 2006, Sharma again refused a direct order
from Hester to process a major contract, this one related to the
Anacostia Waterfront project, which he contended was "illegal"
because "it involved millions of dollars of hidden equipment[.]"
Id. `` 71-74. The same day, Sharma submitted further complaints
of ethical violations to the D.C. Auditor and the D.C. Office of
the Inspector General. Id. ~ 75. Hester subsequently removed
him from the Anacostia Waterfront Project and the project was
reassigned to another employee who, according to Sharma, had "no
engineering background or experience" in complex design
contracts. Id. ~ 78.
--
Sharma alleges that, in April 2007, in a meeting to discuss
Sharma's multiple grievances, Hester told him:
Ray, you are filing too many complaints with the IG,
the Auditors [sic] office, EEOC, and the Mayor. You
are making the Mayor's office and other big bosses
very mad. They will get back at you and you are also
making my job difficult. You need to be
careful. It will take you nowhere but
trouble [.]
-6-
Id. ~ 96. The District denies this allegation.
In June 2007, another supervisor, Diane Wooden, rated
Sharma's performance as "unsatisfactory" in the "Personal
Relations" category and only "satisfactory" in three of the five
remaining performance categories. While Wooden acknowledged
that Sharma had a "vast amount of experience and knowledge of
[the] construction procurement processes," she observed that
the positive aspects of his performance are marred by
poor personal relations with customers and other
stakeholders. Mr. Sharma is argumentative,
condescending, and an obstacle to District employees
who disagree with his perspectives and who are often
seeking advice and assistance from OCP on the proper
way to get contracts awarded. In fact, the quantity
of work that is expected of an employee at his level
is deficient because customers have complained and
requested that Mr. Sharma not be assigned to their
projects.
Ex. to Def. 's Mot. (performance evaluation, dated June 2,
2007) [Dkt. No. 100 at ECF pp. 81-82].
Sharma refused to sign this performance evaluation. Id. A
few months later, in August 2007, he filed amendments to his
EEOC complaint, complaining of, inter alia, "continuing acts of
discrimination, harassment, hostile work environment, severe
threats, [and] retaliation by Ms. Hester and Mr. Mack [.]" TAC ~
121.
-7-
The acrimony between Sharma and his supervisors continued
in the same general pattern throughout the remainder of 2007,
2008, and early 2009. In the meantime, between November 2005
and June 2009, Sharma applied for 20 open supervisory and
directorship positions within OCP but was not selected for any
of them.
On March 4, 2009, the District's Chief Procurement Officer,
David Gragan ( "Gragan") announced that the CDBR group, where
Sharma worked, would be transferred from OCP to the District of
Columbia's Office of Property Management ("OPM"). In connection
with this move, Sharma's colleagues in the CDBR group were
transferred to other positions within OCP or were sent to the
newly formed OPM construction contracting division. Sharma, by
contrast, was not transferred to another position or sent to the
newly formed OPM division.
On May 29, 2009, Sharma received a letter from Gragan,
stating that, as a result of a reduction in force ( "RIF") , he
would be "separated from District government service effective
06/19/09." See Ex. to Def. 's Opp' n (letter from David Gragan,
Chief Procurement Officer, to Ramesh Sharma, dated May 18, 2009
( "RIF notice")) [Dkt. No. 100 at ECF p. 59] . Sharma was the
only member of the CDBR group who was separated from the
District's employment as a result of the RIF. His separation
-8-
went into effect on June 19, 2009, at which time he was
approximately 71 years old.
B. Procedural Background
Sharma filed this lawsuit on June 18, 2010, asserting
claims under the DCWPA and the False Claims Act, 31 U.S.C.
§ 3730(h). On September 1, 2010, the District filed a Motion to
Dismiss the Original Complaint [Dkt. No. 5] , which the Court
denied on June 17, 2011 [Dkt. No. 21]. See Sharma v. Dist. of
Columbia, 791 F. Supp. 2d 207 (D.D.C. 2011) ("Sharma I").
Sharma subsequently filed a Second Amended Complaint ("SAC")
[Dkt. No. 42] on February 6, 2012, and a Third Amended Complaint
("TAC") [Dkt. No. 50] on March 28, 2012, adding claims under
Title VII and the ADEA. On April 16, 2012, the District moved
to dismiss Sharma's claim under the False Claims Act [Dkt. No.
53], which the Court granted on August 8, 2012. Sharma v. Dist.
of Columbia, 881 F. Supp. 2d 138, 142-43 (D.D.C. 2012) ("Sharma
II").
The parties conducted discovery from February 2012 through
February 2013. See Scheduling Order dated Feb. 7, 2 012 [Dkt.
No. 43]; Minute Order dated Dec. 17, 2012; Order dated Jan. 28,
2013 [Dkt. No. 86]. During this time, it came to light that,
whether intentionally or unintentionally, the District had
failed to retain a great deal of relevant and discoverable
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information, including "information pertaining to the selection
of other individuals for positions Plaintiff has applied for,
his performance record during the relevant period of time, and
procedures and policies pertaining to the selection of
applicants for positions in OCP and [OPM] . " Order dated Jan.
15, 2013, at 2 [Dkt. No. 81]
The District conceded that its failure to preserve this
information was a violation of the EEOC's record-keeping
regulation, 29 C.F.R. § 1602.14. Id. at 3. Consequently, the
Court awarded Sharma attorneys' fees and various discovery
relief and ordered that, "as a sanction for failure to comply
with Fed. R. Civ. P. 37 (a) (3) and (4), the [District] will be
deemed to have waived any privilege objections to any documents
produced more than 14 days after issuance of this Order[.]" Id.
at 6-7. The Court thereafter denied an oral Motion by the
District to conduct additional discovery. See Order dated May
28, 2013 [Dkt. No. 91] .
On August 12, 2013, Sharma filed his Motion for Partial
Summary Judgment [Dkt. No. 96] . On September 4, 2013, the
District filed its Opposition [Dkt. No. 100] On September 19,
2013, Sharma filed his Reply [Dkt. No. 104].
On September 27, 2013, the District filed its Cross Motion
for Summary Judgment [Dkt. No. 107] . On November 4, 2 013,
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Sharma filed his Opposition [Dkt. No. 110]. On December 5,
2013, the District filed its Reply [Dkt. No. 113]. On April 14,
2014, Sharma filed a Sur-Reply with permission of the Court
[Dkt. No. 116] . Thereafter, on June 6, 2014, he filed a Notice
of Supplemental Authority [Dkt. No. 120].
II. STANDARD ON SUMMARY JUDGMENT
Summary judgment may be granted only if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Arrington v. United States, 473
F.3d 329, 333 (D.C. Cir. 2006). uA dispute over a material fact
is 'genuine' if 'the evidence is such that a reasonable jury
could return a verdict for the non-moving party. '" Arrington,
473 F.3d at 333 (quoting Anderson v. Liberty Lobby, Inc., 477
u.s. 242, 248 (1986)). A fact is umaterial" if it might affect
the outcome of the case under the substantive governing law.
Liberty Lobby, 477 U.S. at 248. The burden is on the moving
party to demonstrate the absence of any genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) .
In deciding a motion for summary judgment, uthe court must
draw all reasonable inferences in favor of the nonmoving party,
-11-
and it may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The Supreme Court has consistently emphasized
that the judge's function is not to "determine the truth of the
matter, Liberty Lobby, 477 U.S. at 249, but merely to decide
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Id. at 251-52.
III. DISCUSSION
In his TAC, Sharma brings claims for discrimination and
retaliation under Title VII I the ADEA, and the DCWPA.
Specifically, he contends that his separation in 2 009, and the
District's refusal to select him for the 20 supervisory
positions to which he applied between 2005 and 2009, were each
based on his race, age, and/or the fact that he was a
whistleblower. See generally TAC `` 402-34.
A. Legal Framework
Whether brought under Title VII, the ADEA, or the DCWPA,
discrimination and retaliation claims such as Sharma's are
subject to the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (Title VII and ADEA
retaliation claims); Czekalski v. Peters, 475 F.3d 360, 363
-12-
(D.C. Cir. 2007) (Title VII discrimination claims); Payne v.
Dist. of Columbia, 722 F.3d 345, 353 (D.C. Cir. 2013) (DCWPA
claim) .
Under this framework, "a plaintiff must first establish a
prima facie case of retaliation [or discrimination] [.]" Jones,
557 F.3d at 677. To establish a prima facie case of
discrimination, the plaintiff must show: "(i) that he [or she]
belongs to a [protected class]; (ii) that he [or she] applied
and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his [or her] qualifications, he
[or she] was rejected; and (iv) that, after his [or her]
rejection, the position remained open and the employer continued
to seek applicants from persons ·of [the plaintiff's]
qualifications." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139,
1150 (D.C. Cir. 2004) (citing McDonnell Douglas, 411 U.S. at
802) . To establish a prima facie case of retaliation, the
plaintiff must demonstrate that "(1) [he or] she engaged in a
statutorily protected activity; (2) [he or] she suffered an
adverse employment action; and (3) there is a causal connection
between the two." Carter v. George Washington Univ., 387 F.3d
872, 878 (D.C. Cir. 2004).
"If the plaintiff establishes a prima facie case, the
burden shifts to the employer to produce a 'legitimate,
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nondiscriminatory reason' for its actions." Jones, 557 F.3d at
677 (citation omitted). At the summary judgment stage, once the
employer has presented such a legitimate, non-discriminatory
reason, '"the burden-shifting framework disappears,"' id., and
"the district court proceed [s] to address 'one central
question: Has the employee produced sufficient evidence for a
reasonable jury to find that the employer's asserted non-
discriminatory reason was not the actual reason and that the
employer intentionally discriminated [or retaliated] against the
employee on [an invidious basis] ? '" Talavera v. Shah, 638 F.3d
303, 308 (D.C. Cir. 2011) (citing Brady v. Office of the
Sergeant at Arms, 520 F. 3d 490, 494 (D.C. Cir. 2008)) If so,
summary judgment for the employer must be denied. Aka v.
Washington Hasp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998).
B. Plaintiff's Motion
Sharma seeks summary judgment on seven Title VII and ADEA
claims arising out of his failure to be selected for specific
supervisory and directorship positions. 3 He argues that he has
3
These positions were as follows: (1) Supervisory Contract
Specialist, MS-1102-14, under Posting No. 2037, to which Sharma
applied on November 1, 2005; (2) Supervisory Contract
Specialist, OCP, MS-14, under Posting No. 5647, to which Sharma
applied on February 12, 2007; (3) Supervisory Contract
Specialist, MS-14, in OCP's "OCTO contracting group," under
Posting No. 5677, to which Sharma applied on February 12, 2007;
(4) Assistant Director, Procurement (OCP), MS 1101-16, under
-14-
made out a prima facie case of discrimination and retaliation by
demonstrating that he was qualified and applied for each
position but was ultimately rejected in favor of less qualified,
younger individuals who were not Asian or whistleblowers. Pl. Is
Mot. at 30-32. He contends that the District has failed to
rebut this evidence with "a so-called legitimate reason" for not
selecting him. Id. at 26, 34.
The District has, however, presented several legitimate
non-discriminatory and non-retaliatory reasons for not selecting
Sharma. Hester, who was the selecting official for at least two
of the Supervisory Contract Specialist positions at issue,
testified, that, "despite [Sharma's] technical expertise, I
didn't feel that his interaction with the customers was what I
wanted it to be" because he "[t]ended to be combative and
argumentative and difficult." Pl.'s Mot. Ex. 10 (Hester tr. I)
at 103 [Dkt. No. 96-13].
Hester also explained that she selected Karen Wooden
instead of Sharma to fill one of the positions because she
Posting No. 8610, to which Sharma applied on December 12, 2007;
(5) Assistant Director, Construction Contracting, MS-16, OCP,
under Posting 9937, to which Sharma applied on April 2, 2008;
(6) Supervisory Contract Specialist (Construction), MS-14, under
Posting 12320, to which Sharma applied on December 12, 2008; and
(7) Supervisory Contract Specialist (Construction), MS-14, under
Posting No. 12923, to which Sharma applied on March 29, 2009.
See Pl.'s Mot. at 34-43.
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thought Wooden was "better qualified," meaning that she had
"[t]he ability to get along with others [and] respectfully
disagree with customers." Id. at 105. She explained that she
selected another employee, Geoffrey Mack, to fill the second
position because he had a "vast amount of experience," id. at
208, and, unlike Sharma,
had a non-emotional analytical approach to dealing
with [customers] . [Mack] understood what I was
looking for. He didn't have a problem conferring with
me or, you know, turning certain issues over to me for
resolution if he had a problem. In other words, he
supported the manner in which I wanted to manage the
office.
Id. at 201.
Hester also stated, more generally, that Sharma was
"disruptive" and "uncooperative" and that she had communicated
to him on several occasions, without effect, that " [h] e needed
to learn how to appropriately deal with our customers[.]" Ex.
to Def.'s Opp'n (deposition tr. of Karen Hester ("Hester tr.
II")) at 164-68 [Dkt. No. 100 at ECF pp. 65-69]; see also Hester
tr. I at 217-18 [Dkt. No. 96-13]. 4
Similarly, Diane Wooden, who became Plaintiff's supervisor
upon her promotion in 2006, testified that, although Sharma was
4
In addition, as Sharma concedes, the fact that Hester hired him
in the first place "is probative evidence against the claim that
[she] harbored a general animus" against him on the basis of his
age or race. Pl.'s Reply at 10.
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"very knowledgeable," his "overall attitude and condescending
ways and disruptive behavior sort of muddled his experience and
knowledge." Ex. to Def.'s Opp'n (deposition tr. of Diane Wooden
("Wooden tr.")) at 35-36 [Dkt. No. 100 at ECF pp. 87-88].
Sharma's personnel records also support this general
assessment of his performance. Both Hester and Wooden completed
performance evaluations opining that his abrasive manner and
"poor personal relations" with customers and co-workers
prevented him from being successful on the job. See Ex. to
Def. 's Opp' n (Performance Evaluations dated June 2005 and June
2, 2007) [Dkt. No. 100 at ECF pp. 79-82].
Furthermore, on February 8, 2006, Kevin Donahue, a Special
Assistant in the District's Department of Transportation, sent
Hester an email complaining that Sharma "displayed a stunning
lack of professionalism in how he handled disagreements with
staff at the RFQ process today." Def.'s Mot. Ex. G [Dkt. No.
107-11]. Donahue went on to state that:
[w] ithin the first ten minutes of the meeting today,
[Sharma] threatened (in fact declared) that he was
going to report the team to the IG on several
occassions [sic] and called the group a zoo.
Since I'm not familiar with the process, I really
don't know who was right or wrong on the issues, but
what I do know is that under no circumstances should
the OCP representative have responded . . with such
a complete disregard for processional decorum. It
made it impossible to move forward until he was
removed.
-17-
Id.
Indeed, Sharma's interpersonal issues appear to have been
such a concern to Hester that, in August 2006, she issued him a
formal admonition stating that "despite repeated counseling," he
continued to "display disruptive and inappropriate behavior with
me, your peers, and OCP customers," which included "insulting,
accusatory, and threatening comments and outbursts." Def. 's
Mot. Ex. F (Formal Admonition, dated Aug. 25, 2006) at 1 [Dkt.
No. 107-10] Hester explained that such conduct "has resulted
in poor customer relations, lack of timely progress on critical
procurement actions, and disruptions in the operations of the
Construction, Design, and Building Renovations group (CDBR) . "
Id.
Finally, Wilbur Giles, OCP's Chief of Staff and one of the
hiring officials for several of the positions at issue,
testified that, in his opinion, Sharma was only a "mediocre
performer" because he thought himself superior to everyone else,
"portrayed an imbalanced thought process [,]" and "failed to
understand the type of leadership potential that the
organization was looking for." Def.'s Mot. Ex. E (deposition
tr. of Wilbur Giles ("Giles tr.")) at 152, 219, 220.
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Sharma argues that this evidence is insufficient to survive
summary judgment because the District's failure to retain
relevant personnel records warrants an inference that the
missing records support his claims of discrimination. Pl. Is
Mot. at 32-34. Such an inference, however, is merely a relevant
consideration for the trier of fact; it does not warrant the
entry of summary judgment where, as here, there is admissible
evidence that the employer had a legitimate, non-discriminatory
basis for its actions. See, e.g., Talavera, 638 F.3d at 311-12(reversing summary judgment because permissive adverse inference
resulting from record destruction created genuine fact issue);
Gerlich v. U.S. Dep't of Justice, 711 F.3d 161, 170-73 (D.C.
Cir. 2013) (same)
Sharma also contends that summary judgment must be granted
because the witness who testified for the District pursuant to
Fed. R. Civ. P. 30(b) (6) did not know the specific reason he was
not selected for each of the seven positions at issue. Pl. Is
Reply at 3-4. He fails to cite a single case, however, holding
that an employer's evidence of a legitimate nondiscriminatory
reason for its actions must be in the form of Rule 30 (b) (6)
testimony as opposed to other competent evidence produced in
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discovery. 5 Nor must the District produce evidence "that the
person selected [in each case] was better qualified than
[Sharma]." St. Peter v. Sec'y of Army, 659 F.2d 1133, 1138
(D.C. Cir. 1981) Instead, it must merely "bring forth evidence
that [it] acted on a neutral basis,,, id. (citation omitted),
which the District has done with evidence of Sharma,s
argumentative, antagonistic style and interpersonal issues.
In sum, the District has presented more than sufficient
evidence for a jury to conclude that Sharma was not selected for
the positions at issue because of his combative and abrasive
communication style and general inability to work with others,
rather than his race, age, or "whistleblower" status. Any
adverse inference arising out of the District,s failure to
retain relevant documentary evidence is merely an additional
consideration to be submitted to the trier of fact. Sharma,s
Motion for Partial Summary Judgment shall, therefore, be denied.
c. The District of Columbia's Motion
The District has also moved for summary judgment on each of
Sharma,s claims. It advances two arguments: first, that
5
The cases on which Sharma relies concern, almost exclusively,
discovery sanctions under Fed. R. Civ. P. 37. These cases are
inapposite because Sharma has not moved under Rule 37 to
preclude the testimony of Hester, Wooden, or Giles or to bar
introduction of the personnel records memorializing their
complaints about his interpersonal issues.
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Sharma's DCWPA claim is time-barred, and second, that his claims
of discrimination and retaliation are not supported by the
evidence in the record. The Court considers these arguments in
turn.
1. Plaintiff's Claim under the DCWPA
The DCWPA, D.C. Code § 1-615.51, provides that "[a]
supervisor shall not take, or threaten to take, a prohibited
personnel action or otherwise retaliate against an employee
because of the employee's protected disclosure or because of an
employee's refusal to comply with an illegal order." D. C. Code
§ 1-615.53. Employees seeking to enforce their rights under the
DCWPA must file their case "within 3 years after a violation
occurs or within one year after the employee first becomes aware
of the violation, whichever occurs first." D.C. Code § 1-
615.54 (a) (2). As the Court has previously observed, "[t]here is
no dispute that the one year statute of limitations applies to
this case[.]" Sharma I, 791 F. Supp. 2d at 214.
Sharma's DCWPA claim is based on his separation under the
RIF, which went into effect on June 19, 2009. See P1 . ' s Opp' n
at 28. He filed this case on June 18, 2010. Therefore, if his
claim accrued on the date his separation went into effect, as he
argues, the claim is timely, having been filed on the last day
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of the limitations period. If, however, the claim accrued any
time before that, as the District argues, it is time-barred.
As the Court held in Sharma I, a DCWPA claim accrues when
the employee learns "'of the discriminatory act, not [when] the
consequences of the act become painful . ' " Sharma I, 791 F.
Supp. 2d at 214 (emphasis in original) (quoting Stephenson v.
American Dental Ass'n, 789 A.2d 1248, 1250 (D.C. 2002)).
Consequently, the relevant question is when Sharma obtained
"'final, unequivocal, and definite' notice" of the District's
purportedly retaliatory act even if "the effective date" of the
retaliatory decision occurred later. Id. (citing Del. State
College v. Ricks, 449 U.S. 250, 259 (1980); Cesarano v. Reed
Smith, LLP, 990 A.2d 455, 465 (D.C. 2010)).
The District argues that the RIF notice gave Sharma "final,
unequivocal, and definite notice" of his separation, and
therefore that his DCWPA claim accrued no later than May 29,
2009, when he received the notice. Def.'s Mot. at 9-11. 6
6
Sharma initially stated in his TAC that he received the RIF
notice "on or about May 29, 2009." TAC ~ 340. He has now
submitted an affidavit declaring that, although he first saw the
notice on May 29, 2009, he refused to sign for it without a
union steward present and, therefore, did not read it until June
3, 2009. See Pl.'s Opp'n Ex. 72 (Affidavit of Ramesh Sharma
("Sharma Aff.")) ~ 3. Whether Sharma first had notice of his
impending separation on May 29 or June 3 is immaterial to the
timeliness of his claim because he did not file this case until
June 18, 2010 - more than a year after both dates.
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Sharma counters that the RIF notice did not provide final
and unequivocal notice of his claim because he "could have
obtained another position in the D.C. Government before his RIF
became final . " Pl. 's Opp' n at 3 0. His theory is that the
retaliatory act was not merely his impending separation under
the RIF (which applied to the entire CDBR group) , but rather
such separation in conjunction with the Agency's failure to
reemploy him in a new position. Specifically, he alleges that
the District "moved other similarly situated employees from the
abolished CDBR group to positions in other groups" but
refused to move him. TAC ~ 390. Under this view, even if the
RIF notice was final and unequivocal as to the elimination of
his position in the CDBR group, his claim did not accrue until
he learned that he was to be treated differently than other CDBR
employees subject to the RIF (i.e., not reassigned to or
reemployed in a new position) .
However, even if, Sharma's claim did not accrue until he
learned the District was treating him differently from other
CDBR employees by refusing to reassign him to a new position, it
is undisputed that he knew as much by June 11, 2009. On that
date, he forwarded a memorandum to the offices of the D.C.
Inspector General and the D.C. Government Auditor titled "Formal
Complaint of Outrageous Behavior and Illegal Retaliation
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Leading to My job Loss for Whistleblowing, etc. - REQUEST FOR
PROTECTION [.]II See Def.'s Reply Ex. A [Dkt. No. 113-1]
(emphasis in original) . In this memorandum, Sharma specifically
complained, not only that his position was being cut under the
RIF, but also that he had been "illegally FORCED-OUT/RIF'ed with
a severe and adverse impact on of [sic] losing my job as the
only SINGLE employee in the group . . all because of my trying
to do an 'HONEST' job for the Government." See Def.'s Reply Ex.
A [Dkt. No. 113-1] (emphasis added). He stated further that
"OCP+OPM refuses [sic] to consider me under 'Priority/RIP'
status for many vacancies for which I am, not just minimally,
but HIGHLY qualified." Id. (emphasis added)
This evidence removes any doubt that, no later than June
11, 2009, Sharma knew or believed that: (1) he was being treated
differently than other employees in the CDBR group, (2) the
District was refusing to reassign him to other vacancies as it
had with other members of his group, and (3) the RIF would lead
to his final separation from the District's employment. 7
7
Sharma has submitted an affidavit stating that until "late June
or early July" 2009, he did not completely understand the RIF's
effects on other CDBR employees and did not "fully realize" that
he had been discriminated against. Pl.'s Opp' n Ex. 72 (Sharma
Aff.) ' ' 14-16. But the date on which Sharma "fully realize[d]"
he was a victim of discrimination is not important. See e.g. ,
Fortune v. Holder, 767 F. Supp. 2d 116, 122 (D.D.C. 2011)
("Notice or knowledge of discriminatory motivation is not a
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Consequently, even if the Court were to apply the accrual theory
urged by Sharma, there is no genuine dispute that his claim
accrued, at the latest, by June 11, 2009. Sharma did not file
this case until June 18, 2010, more than one year later.
Therefore, his DCWPA claim is time-barred and Defendant's Motion
for Summary Judgment on Count 1 shall be granted.
2. Plaintiff's Claims Under Title VII and the ADEA
The District next argues that summary judgment should be
granted in its favor on Sharma's Title VII and ADEA claims
because Sharma "can present no evidence that the District's
[non-discriminatory, legitimate] reasons for the non- selections
were pretextual[.]" Def.'s Mot. at 20-21. 8 Sharma has, however,
prerequisite for a cause of action to accrue.") (citation and
punctuation omitted) . What is important is the date Sharma knew
the District was "refus [ing] to consider [him for reassignment]
under 'Priority/RIF' status," which the undisputed evidence
shows to be no later than June 11, 2009.
8
The District also contends that Sharma has not made out a prima
facie case. Def. 's Mot. at 11-16. Our Court of Appeals has
consistently held that where, as here, an employer has asserted
a legitimate, non-discriminatory reason for the adverse
employment decision, "the district court need not - and should
not decide whether the plaintiff actually made out a prima
facie case under McDonnell Douglas" but rather should focus on
whether the employee has "produced sufficient evidence for a
reasonable jury to find that the employer intentionally
discriminated [or retaliated] against the employee [.]" Brady,
520 F. 3d at 494 (emphasis in original) (citations omitted); see
also Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014).
Consequently, the Court does not consider whether Sharma has
made out a prima facie case.
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presented evidence from which a jury could find that the
District's failure to select him for various positions, as well
as its ultimate decision to terminate him in 2009, were not
based on his interpersonal issues but rather on his race, age,
and/or "whistleblower 11
status.
First, it is undisputed that all of the positions to which
Sharma applied were filled by employees who were younger than
Sharma, were not of Indian or Asian descent, and had not filed
any complaints. See, e.g., Def.'s Resp. to Pl.'s SOMF `` 22,
38, 52, 79, 85, 88, 96, 110, 114, 124, 154.
Second, as to race/national origin discrimination, Sharma
has submitted a sworn statement that, at his initial interview
in January 2003, Hester told him "she thought most people from
his part of the world (South Asia), like India, Pakistan, and
Bangladesh[,] were very lazy and made poor supervisors or
leaders [.] 11
Sharma has further sworn that, during
his tenure at OCP, he "observed that Ms. Hester constantly
harassed [a Bangladeshi employee] , and finally forced [that
employee] out of his supervisory job [.] 11
TAC ~ 12. This
9
Because the TAC is verified, it serves as a sworn statement of
Sharma. See Neal v. Kelly, 963 F. 2d 453, 457 (D.C. Cir. 1992)
(treating verified complaint as an affidavit for purposes of
summary judgment) .
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evidence establishes a genuine factual dispute as to whether
Hester,s treatment of Sharma, and in particular, her failure to
select him for several supervisory positions, was motivated by a
bias against South Asians. 10
Third, as to age discrimination, Sharma has submitted a
sworn statement that Hester told him not to apply for one of the
Supervisory Contract Specialist positions because Geoffrey Mack,
who was ultimately selected to fill the position, was "younger,
[and] needed a break with a permanent promotion and a faster
salary jump than Plaintiff. 11
TAC `` 37 I 42. There is also
evidence that, in 2008, OCP s Chief Procurement Officer,
1
David
Gragan, opined that Sharma was "'too old, for [a supervisory]
position 11
and had an "'old outdated vision, and outdated
management experience. 111
TAC ~ 152. This evidence is
sufficient to establish a genuine factual dispute as to whether
Sharma, s failure to be selected for a supervisory position was
based on his age, rather than his interpersonal problems.
10
The District argues that Hester s decision to hire Sharma in
1
the first place refutes any inference that she discriminated
against him on the basis of his age or race. Def. s Opp n at 6- 1 1
7. This circumstance, while relevant, is countered by Sharma,s
direct evidence of discriminatory animus and is not, therefore,
dispositive at the summary judgment stage. See, e.g.,
Czekalski, 475 F.3d at 368-69 (fact that supervisor hired
plaintiff was "probative evidence against the claim that he
harbored a general animus against,, women but was not "alone
sufficient to keep th[e] case from the jury 11
).
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Fourth and finally, as to retaliation, Sharma has submitted
evidence that Hester told him he was "filing too many
complaints" and "making the Mayor's office and other big bosses
very mad" which would take him "nowhere but trouble [.]"
TAC ~ 96. Similarly, he attests that, on or about July 16,
2007, Geoffrey Mack, "stalked [him], and yelled to him 'You
damn it Motherf*cker . you have been calling and
filing all these reports with the auditors . I am calling my
mother [ex-D.C. Council Member Gladys Mack] right now and .
She will fire your ass[.]" TAC ~ 110.
In addition, former OCP Assistant Director, Anthony Reed,
has filed an affidavit stating that, in October 2008, Giles
asked him to "terminate Sharma, effective immediately[.]" Pl. Is
Mot. Ex. 3 (Affidavit of Anthony Reed ("Reed Aff. ")) ~ 3 [Dkt.
No. 96-6] Reed explains that Giles told him to watch out for
Sharma because "[h]e'll document everything you say and then use
it against you." Id. ~ 4. Reed states further that he
discussed Giles' request with Chief Procurement Officer David
Gragan who told him that he was "was free to make [his] own
decision regarding Mr. Sharma's continued employment [,]" but
agreed with Giles that Sharma "was 'problematic' due to his
numerous whistleblower and EEO complaints[.]" Id. `` 6-7.
Based on all of this evidence, a jury could find that Sharma's
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separation and non-selections were based on the numerous
complaints he filed.
In sum, the record is sufficient for a jury to conclude
that the District's adverse actions against Sharma were based on
his race, age, and/or whistleblower status rather than his
interpersonal issues, as the District contends. Therefore, the
District's Motion for Summary Judgment shall be denied.
III. CONCLUSION
For the reasons set forth above, Plaintiff's Motion for
Partial Summary Judgment shall be denied and Defendant's Cross
Motion for Summary Judgment shall be granted insofar as it
pertains to Count 1 of the TAC and shall be denied insofar as it
pertains to Counts 3-5 of the TAC. An Order shall accompany
this Memorandum Opinion.
August 25, 2014
United States District Judge
Copies to: attorneys on record via ECF
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