Rae v. Children's National Medical Center

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CHARLESWORTH RAE, )
)
Plaintiff, )
)
v. ) No. 15–cv-0736 (KBJ)
)
CHILDREN’S NATIONAL MEDICAL )
CENTER, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Charlesworth Rae, an African-American man of Antiguan descent, was
employed as an Investigational Research Pharmacist at Children’s National Medical
Center (“CNMC”) from February of 2010 until CNMC terminated his employment in
December of 2014. (See 1st Am. Compl. (“Am. Compl.”), ECF No. 22-1, ¶¶ 3, 5, 7.)
Rae has brought the instant action against CNMC and various CNMC employees
(collectively, “Defendants”) under both federal and state law, alleging that he was not
promoted, and was eventually terminated, due to his race and national origin, and also
that Defendants ultimately fired him in retaliation for his having repeatedly expressed
legitimate concerns about CNMC’s pharmacy operations and for filing a police report
accusing his supervisor of assault. (See id. ¶¶ 46–78.) Rae’s claims have been
narrowed through the course of this litigation, such that the only claims that are still at
issue are those that he asserts for (1) wrongful termination in violation of public policy
(Counts I and II); (2) racially discriminatory and retaliatory discharge in violation of
the D.C. Human Rights Act (“DCHRA”), D.C. Code Ann. §§ 2-1401.01–1404.04
(Count III); (3) racially discriminatory and retaliatory discharge in violation of 42
U.S.C. § 1981 (Count IV); and (4) racially discriminatory and retaliatory discharge in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–e-17 (Count
VI). Counts I–IV are asserted against CNMC, Dr. Sarah Donegan (Rae’s supervisor),
Dr. Ursula Tachie-Menson (Donegan’s supervisor), Zandra Russell (a CNMC Human
Resources representative), and Darryl Varnado (CNMC’s Executive Vice President and
Chief People Officer). (See id. at 1 n.1.) 1 Count VI is asserted only against CNMC.
(See id.)
On March 15, 2017, after discovery had closed, this Court referred this matter to
a magistrate judge for full case management through the district’s random-assignment
process. (See Min. Entry of Sept. 6, 2016; Min. Order of Mar. 15, 2017.) The case was
assigned to Magistrate Judge Deborah Robinson, who subsequently granted in part a
motion that Rae filed seeking to reopen discovery. (See Mem. Op. & Order, ECF No.
40, at 4, 7.) The parties proceeded to engage in a renewed period of discovery, and
once they had resolved all of their discovery disputes, Defendants filed a motion for
summary judgment. (See 2d. Joint Status Report, ECF No. 58; see also Defs.’ Mot. for
Summ. J. (“Defs.’ Mot.”), ECF No. 59.) On March 28, 2018, Magistrate Judge
Robinson issued the Report and Recommendation (“R & R”) that is appended hereto as
Appendix A; in that Report, Magistrate Judge Robinson recommends that Defendants’
summary judgment motion be granted in its entirety with respect to Rae’s remaining
claims against the remaining defendants. (See R & R, ECF No. 71, at 2.)
1
Page number references to the documents that the parties have filed refer to those automatically
assigned by the Court’s electronic case-filing system.
2
Before this Court at present is the R & R and Rae’s objection thereto. (See Pl.’s
Obj. to R & R (“Pl.’s Obj.”), ECF No. 78.) Rae argues that Magistrate Judge Robinson
applied the wrong causation standard to his claims (see id. at 1), that the R & R
improperly found that he had not specified any identifiable policy to support his claims
for wrongful termination in violation of public policy (see id. at 2), that Magistrate
Judge Robinson erred in finding that he had not identified evidence to support his
claims of discrimination and retaliation against CNMC (see id. at 4, 12–13; 17–18), and
that Magistrate Judge Robinson had improperly granted summary judgment to the
individual defendants based on the purported failure of his claims against CNMC (see
id. at 15). Rae’s objection further maintains that CNMC may have “vitiated” their “at-
will employment relationship” because it offered him a severance package—an
argument that he did not include in the summary judgment briefing that Magistrate
Judge Robinson addressed. (See id. at 17.) 2
This Court has carefully reviewed the R & R, the parties’ submissions, and the
record evidence, and for the reasons explained below, the Court concludes that
Magistrate Judge Robinson’s report and recommendation must be ADOPTED IN
PART, and Defendants’ motion for summary judgment will ultimately be GRANTED
IN FULL. In particular, while the Court finds that Magistrate Judge Robinson applied
the wrong causation standard to the wrongful discharge claim and that the R & R is also
erroneous with respect to its finding that Rae had not identified any public policy to
2
Because Rae did not raise this issue in the underlying summary judgment briefing, he is precluded
from raising it in the context of an objection to the report and recommendation, see, e.g., Sciacca v.
Fed. Bureau of Investigation, 23 F. Supp. 3d 17, 27 (D.D.C. 2014) (citation omitted), and this Court
has not considered it.
3
support his wrongful termination claims, the Court agrees with Magistrate Judge
Robinson that there is insufficient record evidence of causation with respect to all of
Rae’s claims, and thus no reasonable jury could find that Rae had satisfied each of the
elements for any of the legal claims presented. Therefore, Defendants are entitled to
summary judgment. A separate Order consistent with this Memorandum Opinion will
follow.
I. BACKGROUND
The factual and procedural background underlying this matter is fully recounted
in Magistrate Judge Robinson’s R & R and the various prior rulings that narrowed the
scope of the claims on which Rae is proceeding. What follows is a brief recitation of
the relevant background facts pertaining to Rae’s remaining claims, which turn on his
contention that Defendants are liable for “Racially Discriminatory/Retaliatory
Discharge” (see Am. Compl., Counts III, IV, VI) and for terminating his employment in
violation of public policy (see id. Counts I, II). 3
A. Facts
CNMC hired Rae in February of 2010 as a pharmacist in the Investigational Drug
Services (“IDS”) Pharmacy, and he was an at-will employee of CNMC. (See Decl. of
Charlesworth Rae (“Rae Decl.”), Ex. 1 to Pl.’s Opp’n to Defs.’ Mot. for Summ. J., ECF
No. 60-2, ¶¶ 2–3.) Shortly after Rae was hired, he began expressing safety and
regulatory concerns with respect to various practices that he allegedly observed at
CNMC. For example, he reported to the Food and Drug Administration (“FDA”) his
3
The background facts that are recounted in this Memorandum Opinion are not disputed. They are
drawn from the exhibits that are attached to the parties’ summary judgment filings, which consist of
depositions, declarations, and materials produced during discovery.
4
concerns about data tampering and falsification of records with respect to an ongoing
study. (See id. ¶ 4.) Such reports continued throughout his tenure. (See, e.g., id. ¶¶ 5,
16–18.) In September of 2013, defendant Dr. Sarah Donegan (who is Caucasian) was
hired as the Manager of the IDS Pharmacy, even though she lacked a license to practice
pharmacy in the District of Columbia at the time that she was hired. (See id. ¶ 8.)
Donegan and Rae had a tense relationship from the moment that Donegan began
working at CNMC. In one instance, for example, Donegan conveyed to Rae that he was
improperly loud and aggressive when he addressed her. (See Ex. 16 to Defs.’ Mot.,
ECF No. 59-18, at 1 (noting that Donegan told Rae during a meeting that she felt
bullied by him during their interactions because he repeatedly interrupted her and
increased his tone when talking to her); Ex. 19 to Defs.’ Mot., ECF No. 59-21, at 1
(noting, in the context of a counseling memorandum that Donegan issued to Rae
regarding his behavior, that Rae “raised [his] voice” and refused to lower it, and
“became disruptive to others” during a meeting on May 29, 2014).) In addition,
Donegan had concerns about Rae copying his personal email when responding to her or
sending emails to CNMC employees, and she asked him to refrain from doing this—a
request that Rae did not honor. (See Ex. 24 to Defs.’ Mot., ECF No. 59-26, at 1.) Rae
also apparently initially resisted instructions from Donegan to sign off on certain
paperwork in connection with a research study, which resulted in a warning from
Donegan to Rae about his conduct being deemed insubordination. (See Ex. 25 to Defs.’
Mot., ECF No. 59-27, at 1–5.) Rae ultimately signed off on the necessary paperwork,
but he indicated that he was doing so “under duress.” (Id. at 1.)
5
The tense nature of their relationship was apparently also obvious to others at
CNMC. On December 13, 2013, Donegan’s supervisor, Dr. Tachie-Menson, sent an
email to CNMC’s Human Resources office (“HR”) requesting a meeting to discuss Rae
in light of her concerns that Rae “is undermining [Donegan’s] authority [because]
[w]henever he doesn’t agree with a decision made by her, he sends a response to HR
and to compliance[,] . . . [and he] has been resistant to any change she has attempted to
make for the improvement of the workflow and documentation compliance.” (Ex. 15 to
Defs.’ Mot., ECF No. 59-17, at 1.) The record is also replete with email
communications between Donegan and Rae—with cc’s to Rae’s personal email account,
Tachie-Menson, and various individuals in HR, including HR contact Zandra Russell—
and these exchanges consistently demonstrate Rae’s resistance to Donegan’s requests to
meet with him individually to discuss issues related to his work. (See, e.g., Ex. 16 to
Defs.’ Mot. at 1; see also Ex. 20 to Defs.’ Mot., ECF No. 59-22, at 1 (email from Rae to
Donegan in response to an Outlook meeting invitation, in which Rae states, “Based on
your repeated hostility towards me . . . I would prefer not to meet . . . today.
Alternatively, I would like to have an opportunity to first discuss my concerns with the
Legal Department before meeting with you and HR under these circumstances”); Ex. 22
to Defs.’ Mot., ECF No. 59-24, at 1 (email chain between Russell and Rae, during
which Russell states, in response to Rae’s statements about being uncomfortable
meeting with Donegan, that “Dr. Donegan has the right as your manager to meet with
you to discuss work-related issues[,]” and that “you were [previously] advised to meet
with Pharmacy management when requested and to perform your job as expected”).)
6
For his part, Rae allegedly had his own concerns about Donegan’s conduct and
work performance. In October of 2014, Rae filed a claim of assault with the
Metropolitan Police Department, based on his allegation that Donegan had “hit [him] on
[his] shoulder” in a manner that did not physically hurt him. (Rae Dep., Ex. 5 to Defs.’
Mot., ECF No. 59-7, at 22.) Rae also complained to CNMC’s compliance officer that
Donegan was engaging in the unauthorized practice of pharmacy, and he submitted
various reports regarding safety concerns that he had with respect to Donegan’s
handling of drugs. (See, e.g., Rae Decl. ¶¶ 10–11, 13.) In addition, Rae filed two
charges with the EEOC alleging that Donegan was discriminating against him and
harassing him—the first on June 30, 2014, and the second on November 25, 2014. (See
id. ¶¶ 21, 28.) 4 In the context of the instant action, Rae further claims that Donegan
shouted at him on various occasions (see, e.g., Ex. 14 to Defs.’ Mot., ECF No. 59-16, at
1), and that she otherwise engaged in conduct that was “professionally disrespectful,
demeaning, and unbecoming of a manager” (Ex. 16 to Defs.’ Mot. at 1). Rae emailed
Daryl Varnado (an HR executive), Russell, Tachie-Menson, and other HR staff on
numerous occasions to complain about Donegan’s treatment of him, including to report
that Donegan was subjecting him to unwarranted “hostility” (e.g., Ex. 13 to Pl.’s Opp’n,
ECF No. 60-14, at 1), that she had was violating CNMC’s Harassment/Discrimination
Policy and Procedure (see Ex. 14 to Pl.’s Opp’n, ECF No. 60-15, at 1), and that she had
“publicly ridiculed and embarrassed” him (Ex. 15 to Pl.’s Opp’n, ECF No. 60-16, at 1).
Rae’s relationship with Donegan deteriorated over time, such that he eventually
requested that an HR representative be present for any meeting between them. (See,
4
Defendants did not become aware of Rae’s November charge until after his termination. (See Aff. of
Zandra Russell (“Russell Aff.”), ECF No. 59-48, ¶ 16.)
7
e.g., Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Stmt. of Undisputed Facts, ECF
No. 59-1, at 18–21.) However, Donegan and the HR office both made clear to Rae that
he did not have a right to insist that someone else be present when he met with his
supervisor (see, e.g., Ex. 23 to Defs.’ Mot., ECF No. 59-25, at 1; Ex. 24 to Defs.’ Mot.,
ECF No. 59-26, at 1), and Donegan ultimately informed Rae that if he refused to meet
with her without a witness present, his refusal “will be characterized as
insubordination” (Ex. 24 to Defs.’ Mot. at 1).
The final and noteworthy incident before Rae’s termination occurred on December
3, 2014. Donegan had instructed Rae to appear at the HR office on December 3rd at 3
PM for a “Performance Review Discussion” with her and Russell. (Ex. 18 to Pl.’s Opp’n,
ECF No. 60-19, at 1; Ex. 37 to Defs.’ Mot. (“Termination Letter”), ECF No. 59-39, at 1.)
Rae sent a responsive email to Tachie-Menson, copying Donegan and various other
individuals on December 3rd:
I wish to acknowledge receipt of an invitation from my
immediate supervisor, Dr. Sarah Donegan, for a mandatory
meeting with me and a HR Representative (Zandra Russell)
today at 3 pm. Based on the repeated hostile and unduly
stressful meetings I have had with Dr. Donegan that have
severely affected my health, coupled with my outstanding
complaint of assault, it will be unhealthy and unproductive for
me to meet with her at this time. Accordingly, I would like
to request that any discussions regarding my performance
evaluation at this time occur[] in writing.
(Ex. 33 to Defs.’ Mot., ECF No. 59-35, at 1.) When Donegan subsequently asked Rae
if he intended to attend the meeting as scheduled, he stated that he was waiting for
Tachie-Menson to respond to his email. (See Rae Decl. ¶ 31.) A hallway confrontation
between Rae and Donegan ensued, after which Rae went to his car. (See id. ¶¶ 32–33.)
He returned to the building shortly thereafter and asked for a security escort to the 3
8
PM meeting. (See id. ¶ 34.) Donegan and Russell were not in the HR suite, and
Donegan testified that this was because she believed that Rae had refused to attend the
meeting. (See Donegan Dep., Ex. 6 to Defs.’ Mot., ECF No. 59-8, at 8.) Varnado was
called to the suite, and he placed Rae on indefinite administrative leave pending an
investigation. (See Rae Decl. ¶¶ 36–37.)
In the course of the investigation that followed, Russell learned that “Rae came
to Human Resources [on December 3] with a CNMC security officer to file a complaint
about Donegan’s request for a mandatory meeting with him” because he believed “that
Dr. Donegan’s request was a form of harassment.” (Russell Aff. ¶ 13.) “Based on the
investigation into [] Rae’s conduct, Human Resources recommended that [] Rae’s
employment be terminated for his repeated harassing and insubordinate conduct toward
his supervisor, Dr. Donegan, which had been well documented.” (Id. ¶ 14.) This
decision was memorialized in a letter that Russell drafted on December 4, 2014,
terminating Rae’s employment effective December 8, 2014. (See id. ¶ 15; Termination
Letter at 1.)
B. Procedural History
Rae filed his initial complaint pro se on May 15, 2015, and on March 25, 2016,
this Court issued an Order dismissing certain claims and allowing Rae to file an
amended complaint. (See Compl., ECF No. 1; Order, ECF No. 18, at 1–2.). 5 Rae filed
his Amended Complaint on May 24, 2016. (See generally Am. Compl.) Rae secured
counsel to represent him during the discovery period, but that representation ended after
discovery closed and before summary judgment motions were filed. (See Notice of
5
Rae purports to have received a Juris Doctorate degree from Rutgers. (See Compl. ¶ 11.)
9
Appearance, ECF No. 30; Mot. to Substitute Counsel, ECF No. 32.) Once again
proceeding pro se, Rae moved to reopen discovery, asserting that his former counsel
had falsely represented that all discovery issues had been resolved. (See Mot. to
Reopen Disc., ECF No. 34, at 2–3.) Magistrate Judge Robinson granted this request in
part (see Mem. Op. & Order, ECF No. 40), and during the reopened discovery period,
new counsel entered an appearance for Rae (see Notice of Appearance, ECF No. 51).
Then, at the close of the reopened discovery period, the parties jointly represented to
Magistrate Judge Robinson that all outstanding discovery issues had been resolved. (See
2d Joint Status Report, ECF No. 58.)
CNMC filed its motion for summary judgment on July 28, 2017. In that motion,
Defendants argue that Rae’s claims for discrimination and retaliation fail as a matter of
law, because CNMC has provided a legitimate, non-discriminatory reason for his
termination—insubordination—and that there is no record evidence establishing that
this reason is a pretext for discrimination or retaliation. (See Defs.’ Mem. at 32–35,
40–41.) Defendants further argue that Rae cannot prove that similarly-situated
employees were treated differently (see id. at 39–40), and that they are also entitled to
summary judgment on Rae’s wrongful termination in violation of public policy claim,
because Rae has not identified a specific policy that his termination violates and cannot
prove that his termination was the result of anything other than his insubordination (see
id. at 44–45). Finally, with respect to the claims Rae has brought against the individual
CNMC employees, Defendants assert that such claims are foreclosed because there is
no evidence that these individuals acted with malice or beyond the scope of their
employment at CNMC. (See id. at 45–46.)
10
Rae opposes Defendants’ summary judgment motion, arguing that the record
contains “sufficient evidence for a jury to conclude that the reason given for his
termination was false[,]” and that “the real reasons were (1) retaliation for reporting
violations of regulations related to patient safety and the safety of drugs dispensed to
the public; (2) retaliation for making a complaint of assault to the Metropolitan Police
Department; and (3) retaliation for reporting harassment, hostile work environment and
discrimination.” (Pl.’s Opp’n at 1–2.) 6 Defendants’ motion for summary judgment
became ripe for review on October 16, 2017. (See Reply to Pl.’s Opp’n, ECF No. 70.)
Magistrate Judge Robinson issued her Report and Recommendation regarding
Defendants’ motion on March 28, 2018. (See generally R & R.) The R & R
recommends that Defendants’ motion for summary judgment with respect to Rae’s
claim for termination in violation of public policy be granted for two independent
reasons. First, Magistrate Judge Robinson finds that Rae has failed to specify an
“identifiable policy[,]” which is required to state a claim for wrongful discharge in
violation of public policy under D.C. law. (R & R at 15 (internal quotation marks and
citation omitted).) See Clay v. Howard Univ., 128 F. Supp. 3d 22, 27 (D.D.C. 2015)
(“To state a claim for wrongful discharge in violation of public policy, the plaintiff
must point to some identifiable policy that has been officially declared in a statute or
municipal regulation, or in the Constitution, and a close fit between the policy and the
conduct at issue in the allegedly wrongful termination.” (quoting Davis v. Cmty.
Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709–10 (D.C. 2013)) (internal
6
Shortly after filing this opposition brief, Rae’s counsel moved to withdraw her appearance. (See Mot.
to Withdraw as Att’y, ECF No. 63.) Rae has been proceeding pro se since Magistrate Judge Robinson
granted the withdrawal motion. (See Min. Order of Oct. 19, 2017.)
11
quotation marks omitted).) Magistrate Judge Robinson also concludes that Rae “has
offered no evidence that his protected conduct was the ‘sole reason’” for his
termination, and has instead offered “only his bare speculation[.]” (R & R at 17
(quoting Hewitt v. Chugach Gov’t Servs., Inc., No. 16-cv-2192, 2016 WL 7076987, at
*2 (D.D.C. Dec. 5, 2016)).)
Magistrate Judge Robinson’s R & R further concludes that Defendants are
entitled to summary judgment on Rae’s retaliation claims, primarily because the only
adverse action at issue was his termination (see id. at 7 n.5), and Rae “offered no
evidence that the proffered reason for the termination of his employment was false, or
was a pretext for retaliation (see id. at 18). Instead, according to the R & R, the
“Statement of Genuine Issues” that is included in Rae’s brief “merely recounts the
chronology of events during the course of his employment at CNMC; his concerns
regarding patient safety and the safety of drugs dispensed to the public; his complaints
regarding harassment, hostile work environment and discrimination, and his denial of
having been insubordinate.” (Id.) Magistrate Judge Robinson also explains that she
“reviewed each of the exhibits Plaintiff filed” in order to determine whether any “serves
as evidence of a genuine issue regarding a fact material to Plaintiff’s retaliation claims”
and found that none did. (Id. at 19.) 7 With respect to the retaliation claims that Rae
has brought against the individual defendants, Magistrate Judge Robinson finds that the
individual defendants are also entitled to summary judgment, because “any claim
7
The R & R treats Rae’s discrimination claims as having been subsumed into his retaliation allegation,
and therefore effectively “withdrawn,” because his opposition brief contained no argument regarding
those claims. (R & R at 7 n.5.) Rather, Rae specifically asserts that the real reason for his termination
was retaliation. (See Pl.’s Opp’n at 1–2.)
12
against any one of them must be predicated upon one or more of the causes of action
which Plaintiff pled, none of which can survive summary judgment.” (Id. at 20.)
Rae has asserted a number of objections to the R & R’s finding and conclusions.
(See generally Pl.’s Obj.) With respect to his claim for wrongful termination in
violation of public policy, Rae’s objection is twofold. He argues, first, that he has
identified a public policy to support his claims; specifically, “‘the public policy
underlying the legal proscriptions on the storage and handling of drugs[.]’” (Pl.’s Obj.
at 2 (quoting Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999)).) Rae
also contends that the proper causation standard for claims alleging termination in
violation of public policy is a “predominate reason” and not the “sole reason” standard
that Magistrate Judge Robinson applied (id. at 1 (citing Bereston v. UHS of Del., Inc.,
180 A.3d 95 (D.C. 2018)), and that there is sufficient record evidence to show that his
conduct in reporting safety concerns regarding prescription drugs was a predominate
reason for his termination (see id. at 4). With respect to his claims for retaliatory
discharge under Title VII, section 1981, and the DCHRA, Rae contends that the proper
causation standard for such claims is a “motivating reason” standard, rather than the
“but for” standard that Magistrate Judge Robinson applied. (Id. at 1.) And he further
maintains that the question of whether his protected conduct led to his termination is
one for a jury, “because there is a close temporal relationship between [his] claimed
protect[ed] activity and the falsity of the reasons Defendants give for [his] termination.”
(Id. at 12.) Finally, Rae objects to the findings regarding his claims against the
individual defendants, arguing that he did not have a fair opportunity during discovery
13
to develop evidence about whether they acted with malice or outside the scope of their
employment. (See id. at 16.) 8
Defendants respond that this Court should overrule Rae’s objections to the R &
R because Magistrate Judge Robinson applied the appropriate causation standard for his
claims (see Defs.’ Resp. to Pl.’s Obj., ECF No. 80, at 5), correctly found that he had not
identified a public policy on which to predicate a wrongful termination claim (see id. at
6–8), properly concluded that Rae did not produce sufficient evidence to send any of his
claims to a jury (see id. at 8–10), and correctly dismissed the claims against the
individual defendants on the grounds that his underlying claims all failed (see id. at 10).
Rae replied to Defendants’ arguments concerning his objection on July 6, 2018. (See
Reply to Defs.’ Obj. Resp., ECF No. 85.) 9
8
Rae does not object to the R & R’s conclusion that he is now proceeding solely on his claims for
retaliation and not racially-based disparate treatment (see supra n.7), and this Court generally agrees
that he abandoned his disparate treatment claims by not pursuing them in the context of the underlying
summary judgment briefing. However, as explained in Part III.B, infra, the Court also finds, in the
alternative, that the state of the record is such that no reasonable jury could conclude that Defendants’
asserted reason for his termination was a pretext for race discrimination.
9
Following the completion of briefing on the objection to the R & R, Rae submitted a supplemental
declaration in support of the objection. (See Pl.’s Suppl. Obj., ECF No. 96.) This declaration largely
consists of a reiteration of the events underlying this case, with additional citations to the record and
case law. In addition, Rae makes new legal arguments which, as noted supra in note 2, are not proper
in the context of an objection to a report and recommendation, and which this Court will not consider.
(See, e.g., id. at 19–20 (arguing that the CNMC Employee Handbook is an employment contract, and
that CNMC breached that contract by terminating him); id. at 28–29 (arguing that he was engaged in
the protected activity of opposing an unlawful discriminatory practice when he copied his personal
email); id. at 49 (arguing that the wrong statute of limitations was applied to his claims under section
1981).)
14
II. LEGAL STANDARDS
A. Review Of Objections To A Magistrate Judge’s Report And
Recommendation
When a magistrate judge issues a report and recommendation on a motion for
summary judgment, any party may file written objections to the proposed findings and
recommendations within fourteen days. See LCvR 72.2(a)(3), (b). Any objection must
“specifically designate the order or part thereof to which objection is made, and the
basis for the objection.” See LCvR 72.3(d). And upon receipt of a timely objection,
this Court is obligated to “make a de novo determination of those portions of the report
or specified proposed finding or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1).
Put another way, “the Court’s analysis with respect to such issues is ‘equivalent
to a decision in the first instance on the merits’ of the [motion] for summary judgment.”
Harris v. Friendship Pub. Charter Sch., No. 18-cv-396, 2019 WL 954814, at *2
(D.D.C. Feb. 27, 2019) (quoting Rooths v. District of Columbia, 802 F. Supp. 2d 56, 60
(D.D.C. 2011)).
B. Motions For Summary Judgment Under Rule 56
To succeed on a motion for summary judgment, the moving party must “show[]
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 citing to particular
parts of materials in the record[,]” Fed. R. Civ. P. 56(c)(1)(A), and “[a] fact is material
if it ‘might affect the outcome of the suit under the governing law[,]’” Steele v. Schafer,
535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
15242, 248 (1986)). The moving party bears the initial burden of demonstrating the
absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden, the non-moving party must
designate “specific facts showing that there is a genuine issue for trial.” Id. at 324(quoting Fed. R. Civ. P. 56(e)).
When assessing a motion for summary judgment, this Court’s role is solely to
determine “whether there is a genuine dispute for trial[,]” and the Court must not make
credibility assessments or weigh evidence. Barnett v. PA Consulting Grp., Inc., 715
F.3d 354, 358 (D.C. Cir. 2013). Instead, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477
U.S. at 255. Notably, however, the Court need not accept conclusory assertions that are
unsupported by the record evidence. See Ass’n of Flight Attendants–CWA, AFL–CIO v.
U.S. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009); see also Scott v. Harris,
550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of
which is blatantly contradicted by [video evidence in] the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”).
III. ANALYSIS
As explained above, at issue at this stage of the instant case are Rae’s claims
for wrongful termination in violation of public policy (Counts I and II), and for racially
discriminatory and retaliatory discharge in violation of the DCHRA (Count III), 42
U.S.C. § 1981 (Count IV), and Title VII (Count VI). Magistrate Judge Robinson’s
R & R recommends that this Court grant Defendants’ motion for summary judgment
16
regarding these claims in its entirety, and this Court ultimately agrees, as explained
below. While Rae is correct that certain aspects of the R & R are erroneous, the Court
concludes that Rae has nevertheless provided insufficient evidence to support a jury
finding that the reason given for his termination was pretextual and that the real reason
was retaliation for his having engaged in certain protected activities or race
discrimination.
A. Defendants Are Entitled To Summary Judgment On Rae’s Claims For
Termination In Violation Of The Public Policies He Has Identified,
Because There Is No Evidence That Defendants Terminated Rae In
Violation Of Any Such Policy
As explained above, the R & R recommends that Defendants’ motion for
summary judgment with respect to Rae’s claim for termination in violation of public
policy be granted because Rae had failed to point to the requisite “identifiable
policy[,]” (R & R at 15 (quotation marks and citation omitted)), and because he “has
offered no evidence that this protected conduct was the sole reason” for his discharge,
instead relying on “only his bare speculation.” (See id. at 17 (internal quotation marks
and citation omitted).) Rae asserts that he has identified “‘the public policy underlying
the legal proscriptions on the storage and handling of drugs’” (Pl.’s Obj. at 2 (quoting
Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999))), and he further
maintains that there is sufficient record evidence to show that his protected conduct was
a predominate reason for his termination (see Pl.’s Obj. at 4; see also Pl.’s Suppl. Obj.
at 46.) This Court agrees with Rae that he has identified a public policy to support his
wrongful termination claim, and that the “predominate reason” standard applies, but
Rae has not provided evidence from which a reasonable jury could determine that his
17
reports about drug handling and pharmacy practices were a predominate reason for his
termination.
1. The R & R Incorrectly Found That Rae Had Not Identified A Public
Policy And Applied The Wrong Legal Standard To His Claim
In Adams v. George W. Cochran & Co., Inc., 597 A.2d 28 (D.C. 1991), the
District of Columbia Court of Appeals held “that there is a very narrow exception to the
at-will doctrine under which a discharged at-will employee may sue his or her former
employer for wrongful discharge when the sole reason for the discharge is the
employee’s refusal to violate the law, as expressed in a statute or municipal regulation.”
Id. at 34. The Court later clarified “that the ‘very narrow exception’ created in Adams”
was not so narrow as to foreclose the exception entirely, and, in particular, that the
exception “should not be read in a manner that makes it impossible to recognize any
additional public policy exceptions to the at-will doctrine that may warrant
recognition.” Carl v. Children’s Hosp., 702 A.2d 159, 160 (D.C. 1997).
In finding that Rae had not pointed to a recognized public policy that could
support invocation of this exception, Magistrate Judge Robinson distinguished the key
case on which Rae relies, Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999),
which involved a plaintiff’s claim that he was wrongfully discharged “in retaliation for
his threat to report to the Federal Drug Administration [] the unlawful condition in
which his employer was storing pharmaceutical drugs[.]” Id. at 1327. Relying on
Adams, the D.C. Circuit panel found that the plaintiff’s termination implicated “the
public policy underlying the legal proscriptions on the storage and handling of drugs”
and “protecting the public from the purchase of adulterated drugs[,]” and thus, that the
plaintiff had stated a cognizable claim for termination in violation of public policy. Id.18
at 1331. Magistrate Judge Robinson nevertheless rejected Rae’s reliance on Liberatore,
on the grounds that Rae was basing his claim on what she perceived to be a different
policy: “patient safety and the safety of drugs dispensed to the public.’” (R & R at 17
n.7 (quotation marks and citation omitted); see also Pl.’s Obj. at 9–10 (noting that Rae
had made safety reports regarding “patient safety concerns pertaining to drug potency
and regulatory concerns”); id. at 13 (pointing out Rae’s reporting of “a number of ‘good
catches’ drug safety interventions involving expired investigational drugs”).)
This Court finds that the distinction that the R & R draws between a public
policy concerning “the legal proscriptions on the storage and handling of drugs” and
“protecting the public from the purchase of adulterated drugs”—which Liberatore
plainly recognizes, 168 F.3d at 1327—on the one hand, and a public policy concerning
“patient safety and the safety of drugs dispensed to the public’” (R & R at 17 n.7), on
the other, is one without a difference, as far as the wrongful termination tort is
concerned. Therefore, based on the authority of Liberatore, this Court concludes that
Rae has, in fact, identified a public policy on which he can base the wrongful
termination claim in Count I. And to the extent that Rae alternatively seeks to ground
his tort claim on his report to MPD that Donegan assaulted him (see Pl.’s Opp’n at 8),
he has likewise plainly identified the necessary public policy for Count II, see Perkins
v. WCS Constr., LLC, No. 18-cv-751, 2018 WL 5792828, at *8 (D.D.C. Nov. 5, 2018)
(finding that plaintiff stated a claim for wrongful termination in violation of public
policy based on her reporting a criminal threat of assault).
The R & R also mistakenly determined that the narrow Adams exception to at
will termination “is recognized in this jurisdiction [only] when violation of such public
19
policy is the ‘sole reason’ for the employee’s termination.” (R & R at 11 (quoting
Arias v. Marriott Int’l, Inc., 217 F. Supp. 3d 189, 197 (D.D.C. 2016).) While the D.C.
Court of Appeals in Adams initially established a “sole reason” standard, its later
decisions have adopted the “predominant reason” standard to which Rae points. See,
e.g., Bereston v. UHS of Delaware, Inc., 180 A.3d 95, 104 n.25 (D.C. 2018); Davis v.
Cmty. Alternatives of Wash., D.C., Inc., 74 A.3d 707, 710 (D.C. 2013); Wallace v.
Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886 n.25 (D.C. 1998).
Consequently, to survive Defendants’ motion for summary judgment with respect to
Counts I and II, Rae’s wrongful termination claims must be supported by sufficient
evidence to permit a reasonable jury to conclude that Rae was discharged
predominantly because he did not countenance CNMC’s alleged violations of drug-
handling or safety standards, or predominantly because he did not keep quiet about
Donegan’s alleged assault.
2. The R & R Correctly Found That There Is Insufficient Evidence
Connecting Rae’s Protected Conduct To His Termination
On the record presented here, this Court concludes (as Magistrate Judge
Robinson ultimately did) that there is no genuine issue of material fact concerning
whether Rae’s conduct in making drug safety reports or his police report concerning
Donegan was a predominant reason for his termination.
Rae’s efforts to establish such a genuine dispute are primarily comprised of an
attempt to raise the specter of pretext, by making various assertions that relate to the
legitimate reason that CNMC offered for his termination—that his “continued pattern of
insubordinate and harassing behavior” towards Donegan, including the facts
surrounding his attendance at the December 3, 2014, meeting. (Termination Letter at
20
1.) For instance, Rae emphasizes that he “did in fact attend the meeting” on December
3 rd , and he argues that this circumstance indicates that CNMC’s “insubordination”
contention is pretextual. (Pl.’s Obj. at 6.) But his analysis in this regard ignores both
key facts about what Donegan believed concerning the meeting at issue, and also the
related and well-established principle that, when considering questions of pretext in the
employment realm, courts look not at “the correctness or desirability of the reasons
offered, but whether the employer honestly believes in the reasons it offers.” Woodruff
v. Peters, 482 F.3d 521, 531 (D.C. Cir. 2007) (quotation marks and citation omitted).
And based on the undisputed record facts about what happened prior to that meeting,
there can be no question that Donegan reasonably believed that Rae did not plan to
attend the meeting. (See Donegan Dep. at 8.) Russell, too, apparently doubted Rae’s
willingness to meet as requested; she conducted an investigation and determined that
Rae was present in Human Resources on December 3rd at 3 PM not for the mandatory
meeting that Donegan had set, but for an entirely separate reason: to complain, once
again, about Donegan asking to meet with him in person. (See Russell Aff. ¶ 13.)
Thus, the record establishes that Russell and Donegan both sincerely and reasonably
believed that Rae was being insubordinate regarding the December 3rd meeting.
Rae also attempts to establish pretext based on the contention that his copying of
correspondence to his personal email was not a violation of CNMC’s IT policy. (See
Pl.’s Obj. at 7 (asserting that, therefore, “Defendants’ stated reason for Plaintiff’s
alleged insubordination for copying his email is false”).) But any dispute over whether
or not Rae’s copying conduct violation CNMC’s policies is not material. What is
relevant is that Donegan gave Rae an express instruction based on her reading of the
21
policy (see Ex. 27 to Defs.’ Mot., ECF No. 59-29, at 3–4), and that Rae refused to
comply (see id.). Rae does not dispute that Donegan had demanded that he cease that
behavior and that he did not do so; therefore, whether the IT policy actually prohibited
Rae from copying his personal email address is entirely beside the point. (See id.)
Similarly, Rae’s assertion that he did not continually harass Donegan, and that he
did not act unprofessionally toward her or undermine her authority (see Pl.’s Obj. at 7–
8), does not create a genuine issue regarding the real reason for his termination. Again,
the record is replete with evidence that indisputably establishes Rae’s insubordinate
conduct and contentions on various occasions, and the evidence also amply
demonstrates that Donegan and others had a legitimate basis for believing—and did, in
fact, believe—that Rae had acted inappropriately toward Donegan and refused to follow
her instructions. (See, e.g., Ex. 15 to Defs.’ Mot. at 1 (email from Tachie-Menson to
HR personnel on December 13, 2013, expressing concerns that Rae is undermining
Donegan’s authority); Ex. 19 to Defs.’ Mot., ECF No. 59-21, at 1 (counseling
memorandum from Donegan to Rae on June 4, 2014, reflecting her belief that Rae
inappropriately raised his voice when discussing a matter with her); Ex. 24 to Defs.’
Mot., ECF No. 59-26, at 1 (email from Donegan to Rae on August 24, 2014, stating that
if he refused to participate in a meeting with her “it will be characterized as
insubordination”); Ex. 25 to Defs.’ Mot., ECF No. 59-27, at 5 (email from Donegan to
Rae on October 8, 2014, explaining that his refusal to comply with her instructions to
sign certain documents would be deemed insubordination); see also Rae Decl. ¶ 20
(admitting that Donegan had expressed that she felt bullied by him).) And there is
nothing in the record that supports the conclusion that Rae’s reporting activity played
22
any role in the termination decision, much less that it was the predominate reason for
his firing.
Indeed, the only record evidence that could conceivably support the
predominance element of Rae’s public policy claim is the proximity in time between
Rae’s drug safety and police reports and his termination. It appears that the last drug
safety report he made was in May of 2014, which was seven months before his
termination (see Pl.’s Opp’n at 7–8), and that he contacted the police in October of
2014, two months before his termination (Ex. 30 to Defs.’ Mot, ECF No. 59-32, at 1.).
But Rae has not cited any wrongful termination cases that hold that the predominance
element can be satisfied solely based on timing of the activity that the public policy
protects relative to the employee’s termination, and this is especially so where, as here,
the two events are literally months apart. In the analogous realm of Title VII retaliation
claims, see Perkins, 2018 WL 5792828, at *8, it is well established that
a seven-month window between the protected activity and the adverse action does not
give rise to a reasonable inference that the former was the predominant reasons for the
latter. See, e.g., Wilson v. Mabus, 65 F. Supp. 3d 127, 133 (D.D.C. 2014) (finding that
a four-month gap between protected activity and an adverse action is too attenuated to
establish causation in a Title VII case). And, even if a two-month gap—such as the one
between Rae’s police report and his termination—is sufficiently close in time to raise a
genuine issue concerning causation based on temporal proximity (which is doubtful), it
would nevertheless be improper for a jury to infer that there is causation and pretext
based on such temporal proximity standing alone. See, e.g., Talavera v. Shah, 638 F.3d
303, 313 (D.C. Cir. 2011) (noting that “positive evidence beyond mere proximity is
23
required to defeat the presumption that the [employer’s] proffered explanations are
genuine” (internal quotation marks and citation omitted)); Snowden v. Zinke, 15-cv-
1382, 2020 WL 7248349, at *14 (D.D.C. Dec. 9, 2020) (explaining, in the context of a
Title VII retaliation case, that “temporal proximity between [protected activity and an
adverse employment action], standing alone, is insufficient to raise a reasonable
inference of pretext”). In the instant context, Rae has offered nothing more.
As a result, this Court confidently concludes that there are no genuine disputes
of material fact regarding whether Rae can establish each of the elements of the tort of
wrongful termination in violation of public policy, which means that Defendants are
entitled to summary judgment on Counts I and II.
B. Defendants Are Entitled To Summary Judgment On Rae’s Claims For
Retaliation And Discrimination And Under Title VII, 42 U.S.C.
§ 1981, And The DCHRA, Because There Is No Evidence That
Defendants Terminated Rae Due To His Protected Activities Or Race
The Court next considers Rae’s claims that that CNMC terminated him in
retaliation against for his protected activity, or that his termination was discriminatory
in violation of Title VII, section 1981, and the DCHRA. As mentioned, Magistrate
Judge Robinson concluded that Rae’s silence with respect to the discrimination claims
in the context of his opposition amounted to a withdrawal of his claims in this regard.
(See supra n.7.) But even if Rae had not forfeited his right to pursue those claims,
Magistrate Judge Robinson’s conclusion that Rae had “not offered ‘sufficient evidence’
from which a reasonable trier of fact could find in his favor; indeed, he has offered no
evidence that the proffered reason for the termination of his employment was false, or
was a pretext for retaliation” (R & R at 18) is not only accurate, it applies to the
discrimination claims as well.
24
Magistrate Judge Robinson reached this conclusion while applying the
McDonnell Douglas burden-shifting framework, which “ requires that the plaintiff
must, first, point to evidence of a ‘prima facie case’—i.e., (1) that he engaged in
statutorily protected activity; (2) that he suffered a materially adverse action by his
employer; and (3) that a causal link connects the two.” Rochon v. Lynch, 139 F. Supp.
3d 394, 403 (D.D.C. 2015) (internal quotation marks and citation omitted), aff’d, 664 F.
App’x 8 (D.C. Cir. 2016). Once a plaintiff establishes his prima facie case, the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its
actions, and if it does so, “the McDonnell Douglas framework—with its presumptions
and burdens—disappear[s],” leaving only the ultimate question of “discrimination vel
non[.]” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142. “And on that
question, the burden of showing that a reasonable jury could find that defendant’s
reasons are pretextual and that the real reason for the adverse action was discriminatory
or retaliatory animus falls on the plaintiff.” Rochon, 139 F. Supp. 3d at 403. 10
Because Rae’s termination indisputably qualifies as an adverse action, and
because CNMC has articulated a legitimate, non-discriminatory reason for its decision
to terminate his employment, the central question that this Court must answer to decide
the pending summary judgment motion is “whether 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
10
The McDonnell Douglas framework applies to Rae’s discrimination and retaliation claims because
he has not presented any direct evidence of discrimination or retaliation. See, e.g., Lemmons v.
Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006) (noting that, in the absence of direct
evidence of discrimination, claims under the DCHRA and section 1981 proceed under Title VII’s
McDonnell Douglas framework).
25
against the employee’ on the basis of a protected class or activity.” Davis v. Mnuchin,
No. 08-cv-0447, 2018 WL 8584035, at *13 (D.D.C. Nov. 13, 2018) (quoting Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)).
Rae objects to the R & R’s conclusion that his evidence is insufficient in this
regard, once again pointing to the purported falsity of the reasons that CNMC offered
for his termination, and the proximity of time between his protected activities and his
termination. (See Pl.’s Obj. at 12.) However, as this Court has already explained in
Section III.A.2, supra, there is no record evidence to support Rae’s assertion that the
reason that CNMC proffered for his termination was false, or that Donegan and Russell
did not actually believe that Rae had engaged in a “continued pattern of insubordinate
and harassing behavior towards [Donegan.]” (Termination Letter at 1.) What is more,
while Rae might well have complained to CNMC’s Human Resources office about
Donegan’s treatment of him in late November of 2014 and early December of 2014,
“[i]t is the binding precedent of this circuit that ‘positive evidence beyond mere
proximity [between protected activity and adverse action] is required to defeat the
presumption that the employer’s proffered explanations are genuine.’” Snowden, 2020
WL 7248349, at *14 (quoting Talavera, 638 F.3d at 313 (alterations omitted)). Rae has
not offered any admissible positive evidence demonstrating pretext, as previously
discussed, and he has therefore failed to establish that there is a genuine issue of fact
for trial concerning the reasons for his termination. 11
11
Rae’s lack of evidence showing that his termination was retaliatory necessarily means that the
standard of causation is irrelevant. But to the extent that Rae takes issue with Magistrate Judge
Robinson’s statement that a “but-for” causation standard applies to his retaliation claims, rather than a
“motivating reason” standard (Pl.’s Obj. at 1–2), he is mistaken in this regard as well. “[T]here is no
‘mixed motive’ retaliation[.]” Saunders v. Mills, 172 F. Supp. 3d 74, 86 (D.D.C. 2016) (citations
26
C. The Individual Defendants Are Entitled To Summary Judgment On
Rae’s Wrongful Termination Claim And His Claims Under Section
1981 And The DCHRA Because, As Rae Has Pled Them, The Claims
Against The Individuals Are Indistinguishable From His Failed
Claims Against CNMC
Finally, this Court also agrees with Magistrate Judge Robinson’s conclusion
concerning the claims that Rae has brought against the individual defendants. Rae’s
complaint indicates that Counts I–IV are brought against CMNC and various individual
defendants. (See Am. Compl. at 1 n.1) Magistrate Judge Robinson’s R & R found that,
so pled, “any claim against any one of [the individual defendants] must be predicated
upon one or more of the causes of action which Plaintiff pled, none of which can
survive summary judgment.” (R & R at 20.) Cf. Brown v. Children’s Nat. Med. Ctr.,
773 F. Supp. 2d 125, 136 (D.D.C. 2011) (explaining that “a claim for individual
liability under [s]ection 1981 requires an affirmative showing linking the individual
defendant with the discriminatory action’” (quoting Page v. Winn–Dixie Montgomery,
Inc., 702 F. Supp. 2d 1334, 1355 (S.D. Ala. 2010))). The Court concurs with the R &
R’s conclusion that the claims that Rae has brought against the individual defendants
are indistinguishable from the claims that he makes against CNMC with respect to those
same causes of action. And Rae appears to take no issue with this basic legal principle;
instead, he contends that his retaliation claims do, in fact, survive summary judgment.
(See Pl.’s Obj. at 15–17.) Unfortunately for Rae, they do not. Therefore, the
individuals defendants, too, are entitled to summary judgment with respect to Counts I–
IV. 12
omitted). Rather, a retaliation claim “must be proved according to the traditional principles of but-for
causation.” Id.12
Rae also contends that he did not have a fair opportunity to develop evidence regarding the
individual defendant’s motivations or whether they acted outside the scope of their employment. (See
27
IV. CONCLUSION
For the reasons articulated above, and as stated in the accompanying Order,
Magistrate Judge Robinson’s Report and Recommendation is ADOPTED IN PART,
and to the extent that she correctly concluded that there is no genuine issue of material
fact concerning whether or not Defendants terminated Rae in violation of public policy
or whether the reason that Defendants provided for Rae’s termination—his
insubordination and harassment of his supervisor—was a pretext for discrimination or
retaliation. The fact that the R & R’s analysis contains misrepresentations concerning
various legal standards and misapprehends Rae’s public policy argument does not
undermine its ultimate determination that Rae has not presented sufficient evidence to
proceed to trial. Consequently, Defendant’s Motion for Summary Judgment (ECF No.
59) must be GRANTED.
DATE: December 28, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
Pl.’s Obj. at 16.) This argument is irrelevant to the disposition of these claims, because evidence in
this regard does not relate to the unsubstantiated elements of his underlying retaliation claims.
28
Appendix A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLESWORTH RAE,
Plaintiff,
v. Civil Action No. 15-00736
KBJ/DAR
CHILDREN’S NATIONAL MEDICAL
CENTER, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff was formerly employed by Defendant Children’s National Medical Center
(hereinafter “CNMC”) as a research pharmacist. In this action, Plaintiff, in his First Amended
Complaint, alleges that Defendant CNMC, and individual supervisory and management officials
further identified herein, engaged in discriminatory and retaliatory conduct violative of public
policy; the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq.;
42 U.S.C. § 1981, and Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq.
See generally First Amended Complaint (ECF No. 22-1). Defendants, in response to the First
Amended Complaint, denied the allegations of discrimination and retaliation, and pled seven
affirmative defenses, including the defenses that certain of Plaintiff’s claims are barred by the
applicable statute of limitations and his failure to exhaust his administrative remedies. See
generally Answer and Affirmative Defenses (ECF No. 25). Discovery has closed, and
Defendants Children’s National Medical Center, et al.’s Motion for Summary Judgement (ECF
No. 59) has been fully briefed.
Rae v. Children’s National Medical Center, et al. Appendix A
Upon consideration of the motion and accompanying Memorandum of Law in Support of
Defendants’ Motion for Summary Judgment (ECF No. 59-1) (“Defendants’ Memorandum”);
Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Motion for
Summary Judgment (ECF No. 60) (“Plaintiff’s Opposition”); Defendants’ Reply to Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment (ECF No. 70) (“Defendants’ Reply”);
Defendants’ statement of material facts as to which there is no genuine issue; Plaintiff’s
statement of genuine issues, and the exhibits filed by the parties in support of and in opposition
to Defendants’ motion, the undersigned recommends that Defendants’ motion be granted with
respect to the remaining claims and Defendants. 1
I. Procedural Background
Plaintiff, proceeding pro se, commenced this action in May 2015 by the filing of a 50-
page complaint in which he named CNMC and a total of seven management officials as
defendants. Plaintiff stated that he was born in Antigua; immigrated to the United States in
1979; earned an undergraduate degree, and later, earned both doctor of pharmacy and juris
doctor degrees. See Complaint (ECF No. 1) ¶¶ 10-11. Plaintiff stated that in February 2010, he
was hired by CNMC as an Investigational Research Pharmacist “pursuant to an ‘at will’
employment contract.” See generally id. at 1. Plaintiff described a series of instances of
perceived irregularities in the pharmacy operations which he brought to the attention of CNMC
1
At various times during the course of the proceedings in this action, Plaintiff represented himself; indeed, it
appears that Plaintiff has been unrepresented in this action since October 19, 2017. See 10/19/2017 Minute Order.
However, Plaintiff was represented by counsel during the course of discovery, and throughout the briefing of
Defendants’ motion for summary judgment. Accordingly, the undersigned’s consideration of Plaintiff’s opposition
to Defendants’ motion does not include the otherwise expansive reading which would be accorded to the
submissions of pro se litigants. See, e.g., Bowe-Connor v. McDonald, Civil Action No. 15-00231, 2016 WL
5675854, at *4, n.2 (D.D.C. Sept. 30, 2016), aff’d and remanded, No. 16-05289, 2017 WL 2373002 (D.C. Cir. Apr.
11, 2017).
2
Rae v. Children’s National Medical Center, et al. Appendix A
management officials throughout 2010. See generally id., ¶¶ 16-31. Plaintiff alleged that in
2011, he applied for, but was denied, a promotion. Id., ¶ 62. Plaintiff further alleged that
continuing through as late as December, 2014, he voiced additional concerns regarding
pharmacy operations, while being subjected to unwarranted criticism and false accusations by
CNMC managers. See id., ¶¶ 63-161. Plaintiff stated that on December 8, 2014, he received a
“Termination of Employment” letter by which he was advised that a decision had been made to
terminate his employment on that date “[a]s a result of the continued pattern of insubordinate and
harassing behavior towards your supervisor[.]” Id., ¶ 162. Plaintiff, in that complaint, stated that
he filed charges of discrimination with the Equal Employment Opportunity Commission, in
which he alleged both discrimination on the basis of his race, age, gender and national origin,
and retaliation “for asserting his legal right in filing [a] report of assault [by an immediate
supervisor, one of the named Defendants] with the Metropolitan Police [Department].” Id., ¶¶
152, 165-169. Plaintiff, in that complaint, alleged “Harassment and Hostile Work Environment”
(“First Count”); “Disparate Treatment” with respect to having been “passed over” for promotion,
“singled out” for disciplinary action and ultimately terminated (Count Two); “reprisal” for
reporting perceived pharmacy operations irregularities and filing a report of assault by his
immediate supervisor (Count Three); assault (Count Four); wrongful termination (Count Five);
defamation (Count Six), and “Negligent Supervision” (Count Seven). Plaintiff named CNMC as
a Defendant; additionally, Plaintiff named as Defendants Kurt Newman, President and Chief
Executive Officer; Sarah Donegan, Investigational Drug Services (“IDS”) Unit Manager; Ursula
Tachie-Menson, Chief of Pharmacy; Zandra Russell, Senior Human Resources Business Partner;
Denise Cooper, Principal Human Resources Consultant for Labor Strategy and Human
3
Rae v. Children’s National Medical Center, et al. Appendix A
Resources Compliance; Wilhelmina DeShazo, Senior Human Resources Business Partner, and
Darryl Varnado, Executive Vice President and Chief People Officer.
By an Order filed on March 25, 2016, the Court (K. Jackson, J.) granted Defendants’
motion to dismiss with respect to Counts One, Four, Six and Seven. Additionally, the Court
granted Defendants’ motion to dismiss any claims under the Age Discrimination in Employment
Act which Plaintiff asserted in the context of Counts Two and Three; and claims in Counts Two
and Three brought under Title VII of the Civil Rights Act of 1964 arising from events that
occurred prior to March 21, 2014, or under the D.C. Human Rights Act arising from events that
occurred prior to February 12, 2014. Order (ECF No. 18) at 1. Finally, the Court granted
Plaintiff’s oral motion for leave to file an amended complaint, and required that in so doing,
Plaintiff “must clarify the law under which each count is being brought and the particular
defendant(s) to which each count pertains.” Id. at 2; see also Transcript of Proceedings at 46
(ECF No. 20).
In the amended complaint filed in accordance with the March 25, 2016 Order, Plaintiff
alleges “Wrongful Termination in Violation of Public Policy Promoting Drug Safety” (Count I);
“Wrongful Termination in Violation of Public Policy Favoring Reports of Illegal Activity to Law
Enforcement” (Count II); “Racially Discriminatory/Retaliatory Discharge in Violation of DC
Human Rights Act” (Count III); “Racially Discriminatory/Retaliatory Discharge in Violation of
42 U.S.C. § 1981” (Count IV); “Discriminatory/Retaliatory Denial of Promotion[,]” also in
violation of 42 U.S.C. § 1981 (Count V); “Racially Discriminatory/Retaliatory Discharge in
violation of Title VII” (Count VI), and “Racially Discriminatory Disparate Treatment in
violation of Title VII” (mistakenly designated Count VI, but hereinafter designated “Count
VII”). First Amended Complaint (ECF No. 22-1). Plaintiff again named CNMC and the same
4
Rae v. Children’s National Medical Center, et al. Appendix A
seven management officials as Defendants; however, in the amended complaint, he indicated that
Counts VI and VII “are only being asserted against Defendant Children’s Nation Medical
Center[,]” but that Counts I through V “[are being asserted] against all named defendants.” Id. at
1, n.1.
The undersigned granted the unopposed motion of Defendants Kirk Newman and
Wilhemina DeShazo for judgment on the pleadings, resulting in the dismissal of Plaintiff’s First
Amended Complaint as to them. 08/01/2017 Minute Order. The undersigned also dismissed
Count V and Count VII of Plaintiff’s First Amended Complaint, and Denise Cooper as a
Defendant, see Plaintiff’s Opposition at 1, n.1, pursuant to Rule 41(a)(2) of the Federal Rules of
Civil Procedure. 03/08/2018 Minute Order.
Thus, the remaining claims are Plaintiff’s claims that he was wrongfully terminated in
violation of public policy (Counts I and II); “Racially Discriminatory/Retaliatory Discharge” in
violation of the D.C. Human Rights Act (Count III); “Racially Discriminatory/Retaliatory
Discharge” in violation of 42 U.S.C. § 1981 (Count IV), and “Racially
Discriminatory/Retaliatory Discharge” in violation of Title VII (Count VI). The remaining
individual Defendants are Sarah Donegan, Ursula Tachie-Menson, Zandra Russell and Darryl
Varnado. 2
II. The Parties’ Contentions
Defendants, in their memorandum of points and authorities in support of their motion,
maintain that given the Court’s ruling that the only claims of discrimination which Plaintiff may
assert must have occurred after February 12, 2014, and that the only adverse employment action
2
Given the dismissal of the two claims and the three individual Defendants addressed in the preceding section, only
the contentions relevant to the remaining claims and Defendants will be further addressed herein.
5
Rae v. Children’s National Medical Center, et al. Appendix A
which remains viable is Plaintiff’s claim regarding the termination of his employment.
Defendants’ Memorandum at 30-31. 3 Defendants submit that they are entitled to summary
judgment in their favor for the following reasons: (1) Plaintiff has no direct evidence of
discrimination or retaliation; (2) Defendant CNMC has documented legitimate,
nondiscriminatory business reasons for its business decisions regarding Plaintiff; (3) Plaintiff has
no evidence that the reasons CNMC offers for the termination of his employment are pretextual;
(4) Plaintiff cannot identify any similarly-situated employee who engaged in misconduct similar
to that in which Plaintiff engaged, but was treated more favorably; (5) with respect to Plaintiff’s
retaliation claims, the protected activities in which Plaintiff claims to have engaged lack close
temporal proximity to Plaintiff’s termination, and (6) Plaintiff cannot identify any public policy
which was violated by his termination, or any evidence that CNMC terminated his employment
because of any protected conduct. Id. at 2. With respect to Plaintiff’s claims that he was
terminated in violation of public policy, Defendants submit, more specifically, that Plaintiff “has
failed to identify any specific public policy that would have been violated[]”; that “[he] cannot
prove any of the alleged complaints he made were the ‘sole cause’ for his termination[,]” and
that “[he] lacks evidence to convince a reasonable jury that his termination was caused by
anything other than his own [in]subordination.” Id. at 37-38. With respect to the individual
Defendants, Defendants broadly submit that Plaintiff has no evidence to support any claims
against any of them. Id.; see also id. at 20, 38-39. 4
3
See infra. n. 5.
4
Defendants submit that “Plaintiff conceded in his deposition that many of [the individual Defendants] were sued
merely because of their position[s][,]” and “also conceded that he has no evidence that any of the Individual
Defendants acted outside the scope of their employment with CNMC.” Id. at 38.
6
Rae v. Children’s National Medical Center, et al. Appendix A
Plaintiff, in his opposition, asserts that summary judgment in favor of Defendants should
be denied “because [he] provided sufficient evidence for a jury to conclude that the reason given
for his termination was false and pretext[ual] and the real reasons were (1) retaliation for
reporting violations of regulations related to patient safety and the safety of drugs dispensed to
the public; (2) retaliation for making a complaint of assault to the Metropolitan Police
Department[,] and (3) retaliation for reporting harassment, hostile work environment and
discrimination.” Plaintiff’s Memorandum of Points and Authorities in Opposition to
Defendants’ Motion for Summary Judgment (“Plaintiff’s Opposition”) (ECF No. 60) at 1-2, 18.5
With respect to the four remaining individual Defendants, Plaintiff submits that “[he] has
established individual liability under Section 1981 because [the four remaining individual
Defendants] . . . all participated in the decision to terminate [him].” Id. at 25-26. More
specifically, Plaintiff submits that the four remaining individual Defendants “retaliated against
[him] by terminating him for insubordination in the face of evidence that he was present at HR at
the appointed time for the meeting on December 3, 2014.” Id. at 26.
Defendants, in their reply to Plaintiff’s opposition, submit that Plaintiff has failed to offer
evidence from which a reasonable trier of fact could find that the reason offered by Defendants
for the termination of Plaintiff’s employment was not the actual reason, and that his employment
was terminated because he filed an Equal Employment Opportunity Commission charge, or
because he made anonymous complaints to regulatory agencies concerning pharmacy practices,
or because he filed a police report against his supervisor. Defendants’ Reply at 1-2. More
specifically, Defendants submit that “Plaintiff’s entire case rests on pure speculation and his
5
Plaintiff thus seemingly concedes, as Defendants submit, that the only viable claims are those which concern the
termination of his employment. Additionally, Plaintiff appears to have withdrawn his contention that the
termination of his employment was discriminatory, and instead, now submits only that the termination of his
employment was retaliatory.
7
Rae v. Children’s National Medical Center, et al. Appendix A
unsupported self-serving affidavit that merely recites the allegation in his Amended Complaint.”
Id.; see also id. at 6 (“Plaintiff’s conclusory and speculative assertions, which are devoid of any
factual content, are nothing more than ‘mere[] allegations’ upon which Plaintiff cannot base his
claims.”) (quoting Fed. R. Civ. P. 56(e)(2)).
III. Applicable Standards
A. Summary Judgment
“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). An issue is genuine if the “evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Whether a fact is material is determined based on whether it might affect the outcome of the suit
under the governing law. Id. The party seeking summary judgment must identify “those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“[A] party opposing a properly supported motion for summary judgment may not rest
upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 256 (internal quotation marks
omitted). “Conclusory allegations without any factual support in the record cannot create a
genuine dispute sufficient to survive summary judgment.” Coates v. Washington Metro. Area
Transit Auth., Civil Action No. 15-02006, 2018 WL 1210861, at *2 (D.D.C. Mar. 8,
2018) (citing Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462,
8
Rae v. Children’s National Medical Center, et al. Appendix A
465-66 (D.C. Cir. 2009)). Moreover, where “a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact,” the district court may, among other
actions, “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).
Additionally, the Local Civil Rules of this Court require that
[e]ach motion for summary judgment shall be accompanied by a
statement of material facts as to which the moving party contends
there is no genuine issue, which shall include references to the
parts of the record relied on to support the statement. An
opposition to such a motion shall be accompanied by a separate
concise statement of genuine issues setting forth all material facts
as to which it is contended there exists a genuine issue necessary to
be litigated, which shall include references to the parts of the
record relied on to support the statement. . . . In determining a
motion for summary judgment, the Court may assume that facts
identified by the moving party in its statement of material facts are
admitted, unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.
LCvR 7(h)(1). “The purpose of this rule is to ‘place[] the burden on the parties and their
counsel, who are most familiar with the litigation and the record, to crystallize for the district
court the material facts and relevant portions of the record.’” Bruder v. Chu, No. 11-1492, 2013
WL 3722334, at *1 (D.D.C. July 17, 2013) (quoting Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996)). “Because [LCvR 7(h)] helps the district
court maintain docket control and decide motions for summary judgment efficiently, the D.C.
Circuit has repeatedly upheld district court rulings that hold parties to strict compliance with this
rule.” Lockhart v. Coastal Int’l Sec., Inc., No. 11-02264, 2013 WL 6571605, at *1, n.2 (D.D.C.
Dec. 14, 2013) (internal quotation marks omitted) (quoting Robertson v. Am. Airlines, Inc., 239
F. Supp. 2d 5, 8 (D.D.C.2002)).
When deciding a motion for summary judgment, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences” are not the Court’s role;
9
Rae v. Children’s National Medical Center, et al. Appendix A
instead, the evidence must be analyzed in the light most favorable to the non-movant, with all
justifiable inferences drawn in the non-movant’s favor. Liberty Lobby, 477 U.S. at 255; see also
Figueroa v. Tillerson, Civil Action No. 16-00649, 2018 WL 646883, at *4 (D.D.C. Jan. 31,
2018) (“When deciding a motion for summary judgment, the Court must ‘examine the facts in
the record and all reasonable inferences derived therefrom in a light most favorable to’ the
nonmoving party.”) (quoting Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation
omitted)). “If material facts are genuinely in dispute, or undisputed facts are susceptible to
divergent yet justifiable inferences, summary judgment is inappropriate.” Coates, 2018 WL
1210861, at *2 (D.D.C. Mar. 8, 2018) (citing Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.
2009)). Ultimately, the Court must determine “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.” Liberty Lobby, 477 U.S. at 251–52. Put another way, the non-
movant must “do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).
B. Wrongful Termination in Violation of Public Policy
Generally, in the District of Columbia, “an employer may discharge an at-will employee
at any time and for any reason, or for no reason at all.”
Harris v. D.C. Water & Sewer Auth., 195 F. Supp. 3d 100, 104 (D.D.C. 2016), appeal
dismissed, Civil Action No. 16-7097, 2018 WL 846615 (D.C. Cir. Jan. 3, 2018) (quoting Adams
v. George W. Cochran & Co., Inc., 597 A.2d 28, 30 (D.C. 1991) (citations omitted)). However,
10
Rae v. Children’s National Medical Center, et al. Appendix A
the District of Columbia Court of Appeals has held that an intentional tort for wrongful discharge
exists “where ‘the sole reason for the discharge is the employee’s refusal to violate the law, as
expressed in a statute or municipal regulation.’” LeFande v. District of Columbia, 864 F. Supp.
2d 44, 50 (D.D.C. 2012) (quoting Adams, 597 A.2d at 34). Later the District of Columbia Court
of Appeals extended this narrow exception to permit courts to recognize additional public policy
exceptions subject to the following qualification: The District of Columbia recognizes a common
law tort of wrongful discharge “as an exception to the traditional at-will doctrine governing
termination of employment, where the discharge violates ‘a clear mandate of public policy.’”
District of Columbia v. Beretta, USA Corp., 872 A.2d 633, 645 (D.C. 2005) (en banc) (quoting
Carl v. Children’s Hosp., 702 A.2d 159, 164 (D.C. 1997)). When asked to apply the exception:
[The] court should consider seriously only those arguments that reflect a clear
mandate of public policy—i.e., those that make a clear showing, based on some
identifiable policy that has been officially declared in a statute or municipal
regulation, or in the Constitution, that a new exception is needed. Furthermore,
there must be a close fit between the policy thus declared and the conduct at issue
in the allegedly wrongful termination.
LeFande, 864 F. Supp. at 50 (quoting Carl, 702 A.2d at 164) (emphasis supplied).
Further, this narrow exception is recognized in this jurisdiction when violation of such
public policy is the “sole reason” for the employee’s termination. Arias v. Marriott Int’l, Inc.,
217 F. Supp. 3d 189, 197 (D.D.C. 2016); see also Battles v. Washington Metro. Area Transit
Auth., 272 F. Supp. 3d 5, 14, n.2 (D.D.C. 2017) (“there is a cause of action for wrongful
termination where an at-will employee acted in furtherance of a public policy and was terminated
solely on the basis of such conduct.” (citation and internal quotation marks omitted).
C. Retaliation
11
Rae v. Children’s National Medical Center, et al. Appendix A
Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Where
there is no direct evidence of discrimination, Title VII claims are assessed pursuant to the
burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03 (1973). Plaintiff has the initial burden of proving by a
preponderance of the evidence a prima facie case of discrimination. To allege a prima facie case
of discrimination, a plaintiff must show that he “is a member of a protected class,” that he
“suffered an adverse employment action,” and that “the unfavorable action gives rise to an
inference of discrimination.” Youssef v. F.B.I., 687 F.3d 397, 401 (D.C. Cir.
2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)).
Once the plaintiff has made out a prima facie case, “the burden shifts to the defendant ‘to
articulate some legitimate, nondiscriminatory reason for the [employment action that is
challenged].’” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. 1817). Once an employer has proffered a nondiscriminatory
reason, the McDonnell Douglas burden-shifting framework ceases, and the court must then
determine whether the plaintiff has proffered enough evidence to defeat the defendant’s proffer
and support a finding of discrimination. Brady v. Office of the Sergeant at Arms, 520 F.3d 490,
494 (D.C. Cir. 2008); Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).
At the summary judgment stage, courts may consider plaintiff’s prima facie case,
evidence proffered by the plaintiff to rebut the employer’s explanations for actions taken, and
any additional evidence of discrimination that the plaintiff might proffer. See E.g., Hampton v.
12
Rae v. Children’s National Medical Center, et al. Appendix A
Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012); see also Hamilton v. Geithner, 666 F.3d 1344,
1351 (D.C. Cir. 2012) (noting that, to avoid summary judgment, a plaintiff need not submit
evidence “over and above” that necessary to rebut the employer’s stated reason) (quotation
omitted). A plaintiff’s disagreement with an employer’s explanation cannot alone “satisfy the
burden of showing that a reasonable jury could find that the employer’s asserted reason was not
the actual reason and that the employer intentionally discriminated against the plaintiff on a
prohibited basis.” Burton v. District of Columbia, 153 F. Supp. 3d 13, 58 (D.D.C. 2015).
“Despite Title VII’s range and its design as a comprehensive solution for the problem of
invidious discrimination in employment, the aggrieved individual clearly is not deprived of other
remedies he possesses and is not limited to Title VII in his search for relief.” Johnson v. Ry.
Exp. Agency, Inc., 421 U.S. 454, 459, (1975). Courts analyze Title VII and Section
1981 employment discrimination claims under similar legal standards. “Under either Title
VII or Section 1981, [the plaintiff] must demonstrate by a preponderance of the evidence that the
actions taken by the employer were ‘more likely than not based on the consideration of
impermissible factors’ such as race, ethnicity, or national origin.” Pollard v. Quest
Diagnostics, 610 F. Supp. 2d 1, 18 (D.D.C. 2009) (quoting Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). Under this standard, the plaintiff may either prove his claim
with direct evidence of discrimination or he may indirectly prove discrimination under the
familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
(1973). The McDonnell Douglas burden-shifting framework applies to employment
discrimination claims, id.; retaliation claims, Carney v. American Univ., 151 F.3d 1090, 1094
(D.C. Cir. 1998); and claims brought pursuant to Section 1981, Carter v. George Washington
13
Rae v. Children’s National Medical Center, et al. Appendix A
Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Thus, the undersigned will also analyze the Section
1981 claim in tandem with the Title VII claim.
When it comes to prohibiting discrimination and retaliation, the D.C. Human Rights Act
“uses almost precisely the same language” as Title VII. Thomas v. District of Columbia, 209 F.
Supp. 3d 200, 204 (D.D.C. 2016). Hence, “[w]hen presented with a suit alleging violations of
each law, courts generally evaluate the claims under Title VII jurisprudence.” Id.; see also
Carpenter v. Fed. Nat’l Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999) (noting that District of
Columbia courts follow the burden-shifting test applicable to Title VII claims when evaluating
DCHRA claims and “seem[] ready to accept the federal constructions of Title VII, given the
substantial similarity between it and the [DCHRA]”).
Accordingly, the undersigned applies the Title VII standards to the consideration of
Plaintiff’s Section 1981 and D.C. Human Rights Act claims.
IV. Discussion
A. Alleged Termination of Employment in Violation of Public Policy
As the undersigned discusses in greater detail in Section B., infra, Defendants proffer that
the reason for the termination of Plaintiff’s employment was a legitimate, non-discriminatory,
reason, i.e., Plaintiff’s “clear pattern of combative and insubordinate behavior toward his direct
supervisor[.]” Defendants’ Memorandum at 1; see also id. at 10-18 (Defendants’ Statement of
Undisputed Facts); 25-27. As evidence of such legitimate, nondiscriminatory reason, Defendants
offer a total of 25 exhibits. See Defendants’ Statement of Material Facts at 10-18; Exhibits (ECF
Nos. 59-15, 59-16, 59-17, 59-18, 59-19, 59-20, 59-21, 59-22, 59-23, 59-24, 59-25, 59-26, 59-27,
59-28, 59-29, 59-30, 59-31, 59-32, 59-33, 59-34, 59-35, 59-36, 59-37, 59-38, 59-39). The
14
Rae v. Children’s National Medical Center, et al. Appendix A
exhibits primarily consist of email and other exchanges – some of which were authored by
Plaintiff himself – concerning the perceptions of Plaintiff’s conduct. E.g., Exhibit 13 (ECF No
59-15) (email from Plaintiff requesting a meeting with a Human Resources representative “re Dr.
Donegan’s claim the ‘she feels she is being bullied’ by me whenever we interact”); Exhibit 14
(ECF No. 59-16) (including Plaintiff’s acknowledgment that “I placed my pen on a prescription
label that [Dr. Donegan] was holding in her hand[]”); Exhibit 19 (ECF No. 59-21) (Dr.
Donegan’s letter to Plaintiff, six months prior to the termination of his employment, noting, inter
alia, that “it is expected that you comply with my instructions and be courteous and professional
when dealing with me and your coworkers[,]” and that “your continued refusal to follow my
direction could also be perceived as insubordinate, which is a violation of our Corrective Action
Procedure.”); Exhibit 27 (ECF No. 59-29) at 3 (directive of Dr. Donegan to Plaintiff that he
refrain, as she previously directed, from including his personal email when engaging in CNMC-
related communications).
Before a court can reach the issue of whether an individual whose at-will employment
was terminated has offered evidence from which a reasonable trier of fact could find that such
termination was in violation of public policy – and that the allegedly protected conduct was the
“sole reason” for the termination – the individual first must “point to some identifiable policy
that has been officially declared in a statute or municipal regulation, or in the Constitution[.]”
Clay v. Howard University, 128 F. Supp. 3d 22, 28 (D.D.C. 2015) (the “common denominator”
in viable wrongful termination claims is the existence of specific laws or regulations that clearly
reflect a policy prohibiting the activity about which the employee complained, whether or not the
employer actually violated the law or regulation.”) (citation and internal quotation marks
omitted) (emphasis supplied).
15
Rae v. Children’s National Medical Center, et al. Appendix A
However, as Defendants aptly observe, see, e.g., Defendants’ Memorandum at 37,
Plaintiff has failed to offer evidence of any “identifiable policy” allegedly violated. Rather,
Plaintiff cites five District of Columbia Code provisions, three District of Columbia Municipal
Regulations, a United States Code provision, and two Code of Federal Regulations provisions in
support of his assertion that (1) “Public policy in the District of Columbia promotes patient
safety and the safety of drugs dispensed to the public[,]” and “Public policy of the District of
Columbia promotes the rights of its citizens to seek assistance of law enforcement through the
filing of police reports.” Plaintiff’s Opposition at 3 (Plaintiff’s Statement of Genuine Issues), ¶¶
11, 34; see also id. at 19-21, 27. As Plaintiff offers no exhibits to support these assertions, the
undersigned has undertaken a review of each of the 11 provisions. Having done so, the
undersigned finds that none of them – read individually or in combination with others – declares
any “identifiable policy” on which a claim of wrongful termination in violation of public policy
could be predicated. Cf. Omwenga v. United Nations Foundation, 244 F.Supp.3d 214, 221
(D.D.C. 2017) (finding that the municipal regulations cited by the Plaintiff reflect the public
6
policy alleged).
Given this finding, the undersigned concludes that no further inquiry with respect to
whether a reasonable trier of fact could conclude that Plaintiff was terminated in violation of
public policy is warranted. However, assuming, arguendo, the existence of an “identifiable
6
Here, Plaintiff cites a District of Columbia Municipal Regulation pertaining to the supervision of the practice of
pharmacy (D.C. Mun. Regs. tit. 17, § 6508); two District of Columbia Municipal Regulations and a United States
Code provision pertaining to recordkeeping of pharmacy records (D.C. Mun. Regs. subt. 22-B, § 1913, D.C. Mun.
Regs. subt. 22-B, § 1914 and Food, Drug, and Cosmetic Act, § 505(i), as amended, 21 U.S.C. § 355(i)); a District of
Columbia Code provision pertaining to disciplinary actions in the context of pharmacy licensure (D.C. Code Ann. §
3-1205.14); two Code of Federal Regulations pertaining to investigational drug studies (21 C.F.R. 312.1, et seq and
42 C.F.R. 93.100, et seq.), and four District of Columbia Code provisions pertaining generally to assaults and
victim’s rights (D.C. Code Ann. § 1-301.191, D.C. Code Ann. § 23-1901, D.C. Code Ann. § 22-403 and D.C. Code
Ann. § 22-404).
16
Rae v. Children’s National Medical Center, et al. Appendix A
policy” on which Plaintiff can base his claim, the undersigned further finds that Plaintiff has
offered no evidence that his protected conducted was the “sole reason[.]” Hewitt v. Chugach
Gov’t Servs., Inc., Civil Action No. 16-02192, 2016 WL 7076987, at *2 (D.D.C. Dec. 5, 2016).
Instead, Plaintiff offers only his bare speculation that his protected conduct was the reason for
the termination. See, e.g., Plaintiff’s Opposition at 20 (“Defendants’ reason for Plaintiff’s
termination is suspect because Defendants did not follow the Employee Handbook guidelines on
termination and ignored Plaintiff’s claim that he came to the meeting . . . as requested.”). Such
speculation is insufficient to survive a motion for summary judgment. E.g. Nunnally v. District
of Columbia, 243 F. Supp. 3d 55, 68-69 (D.D.C. 2017) (observing that “a plaintiff’s mere
speculations are insufficient to create a genuine issue of fact regarding an employer's articulated
reasons for its decisions and avoid summary judgment.”) (citation omitted). 7
B. Alleged Retaliation in Violation of Title VII, Section 1981 and the D.C. Human Rights
Act
Plaintiff, in his opposition to Defendants’ motion for summary judgment, maintains that
Defendants’ motion should be denied “because [he] provided sufficient evidence for a jury to
conclude that the reason given for his termination was false and pretext[ual] and the real reasons
were (1) retaliation for reporting violations of regulations related to patient safety and the safety
of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the
7
Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999), on which Plaintiff relies, see Plaintiff’s Opposition
at 20, is distinguishable. In Liberatore, as here, the plaintiff challenged the termination of his employment on the
ground that his employer violated public policy in doing so. A panel of the District of Columbia Circuit reversed the
District Court’s grant of summary judgment in favor of the employer, finding that the challenged conduct
“implicate[d] the public policy underlying the legal proscriptions on the storage and handling of drugs.” 168 F.3d.
at 1331. However, this is not the public policy on which Plaintiff, in this action, bases his claims. See Plaintiff’s
Opposition at 3 (“Public policy in the District of Columbia promotes patient safety and the safety of drugs dispensed
to the public.”); id. at 8 (“Public policy of the District of Columbia promotes the rights of its citizens to seek
assistance of law enforcement through the filing of police reports.”).
17
Rae v. Children’s National Medical Center, et al. Appendix A
Metropolitan Police Department; and (3) retaliation for reporting harassment, hostile work
environment and discrimination.” Plaintiff’s Opposition at 1-2. The undersigned finds,
however, that Plaintiff – his assertion to the contrary notwithstanding – has not offered
“sufficient evidence” from which a reasonable trier of fact could find in his favor; indeed, he has
offered no evidence that the proffered reason for the termination of his employment was false, or
was a pretext for retaliation.
As noted in Section A, supra, Defendants offer evidence in support of their proffer of a
legitimate, non-discriminatory reason for the termination of Plaintiff’s employment. 8 Thus,
Plaintiff must proffer evidence “to show that ‘the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.’” Gilliard v. Gruenberg, Civil
Action No. 16-02007, 2018 WL 1471949, at *4 (D.D.C. Mar. 26, 2018) (quoting George v.
Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005)); see also Brady, 520 F.3d at 494, Woodruff, 482
F.3d at 530. However, Plaintiff, in his “Statement of Genuine Issues[,]” fails to identify a single
“material fact[] as to which it is contended there exists a genuine issue necessary to be litigated,”
see LCvR 7(h), and instead, merely recounts the chronology of events during the course of his
employment at CNMC; his concerns regarding patient safety and the safety of drugs dispensed to
the public; his complaints regarding harassment, hostile work environment and discrimination,
and his denial of having been insubordinate. See Plaintiff’s Opposition at 2-18. However, “the
Court can neither credit [any assertions], nor conclude that they controvert defendant’s factual
assertions.” Barot v. Embassy of Republic of Zambia, Civil Action No. 13-00451, 2018 WL
8
With respect to Plaintiff’s retaliation claim, Defendants offer, in addition, evidence that at the time Plaintiff’s
employment was terminated, no one was aware that Plaintiff had made any reports of violations of regulations
related to patient safety and the safety of drugs, or that he had reported harassment, hostile work environment and
discrimination. See Defendants’ Statement of Material Facts at 10-18, Defendants’ Exhibit 38 (ECF No. 59-40), D.
Cooper Affidavit (ECF No. 59-47) at ¶ 14; Z. Russell Affidavit (ECF No. 59-48) at ¶ 17.
18
Rae v. Children’s National Medical Center, et al. Appendix A
1210862, at *5, n.8 (D.D.C. Mar. 8, 2018) (citing LCvR 7(h)); see also Mack v. Georgetown
Univ., Civil Action No. 15-00793, 2017 WL 4325596, at *2 (D.D.C. Aug. 4, 2017), report and
recommendation adopted, 2017 WL 4325617 (D.D.C. Sept. 27, 2017) (“a district court should
not be forced to comb through the factual record to ferret out disputes of material fact[]”).)
(citation omitted).
Nonetheless, the undersigned has reviewed each of the exhibits Plaintiff filed in an effort
to determine whether any exhibit, or combination of exhibits, serves as evidence of a genuine
issue regarding a fact material to Plaintiff’s retaliation claims. Having done so, the undersigned
answers the inquiry in the negative. 9 Rather, the exhibits fairly may be characterized as
documentation of Plaintiff’s narrative concerning the interactions among him, his supervisor and
other managers. See, e.g., Plaintiff’s Exhibit 15 (ECF No. 60-16) (Plaintiff’s “Report of Contact
re Public ridicule and embarrassment by immediate supervisor[]”). 10
C. Individual Defendants
9
By way of illustration, the undersigned notes that Plaintiff’s exhibits include his own declaration, which can be
accorded little weight in any event. See Berry v. Coastal Int’l Sec., Inc., Civil Action No. 12-01420, 2016 WL
1060196, at *3, n.3 (D.D.C. Mar. 15, 2016), aff'd, Civil Action No. 16-7043, 2016 WL 4434664 (D.C. Cir. Aug. 22,
2016). In the declaration, Plaintiff states, inter alia, that “[t]he letter of termination. . . states that I received repeated
counseling by numerous employees; however, in her deposition, Dr. Donegan said she did not know of any
employee who counseled me other than herself and Denise Cooper.” Plaintiff’s Exhibit 1 (Declaration of Plaintiff
Charlesworth Rae) (ECF No. 60-2), ¶ 42. The undersigned finds that whether Plaintiff was counseled by
“numerous” employees or by only two employees is not a fact which is material. See Am. Civil Constr., LLC v. Fort
Myer Constr. Corp., Civil Action No. 15-00515, 2018 WL 953328, at *3 (D.D.C. Feb. 20, 2018) (“‘Material’ facts
are those capable of affecting the substantive outcome of the litigation[.]”) (citing Liberty Lobby, Inc., 477 U.S. at
248 (1986)).
10
The undersigned’s review of the exhibits offered by Plaintiff included consideration of Plaintiff’s Exhibit 7,
Plaintiff’s Amended Response to Interrogatories [Propounded by] Defendant Children’s National Medical Center,
see ECF No. 60-8, which was the subject of Defendants’ Motion to Strike (ECF No. 64). Because the amended
interrogatory response cannot reasonably be construed as evidence sufficient to create a genuine issue for trial, the
undersigned has no occasion to reconsider the order denying the motion to strike without prejudice. See 03/02/2018
Minute Order.
19
Rae v. Children’s National Medical Center, et al. Appendix A
As Plaintiff has failed to offer evidence from which a reasonable trier of fact could find in
his favor regarding his claims of termination in violation of public policy, or his claims of
retaliation, no discussion of Plaintiff’s purported claims against the four remaining individual
Defendants is necessary: any claim against any one of them must be predicated upon one or more
of the causes of action which Plaintiff pled, none of which can survive summary judgment.
Plaintiff’s theory of liability with respect to the four remaining individual Defendants is that they
“were personally involved in the [retaliatory] activity–Plaintiff’s termination.” Plaintiff’s
Opposition at 25. Assuming, without deciding, that all four remaining individual Defendants
“were personally involved” in the decision to terminate Plaintiff’s employment, such
involvement does not create a cause of action against them. 11
V. Conclusion
Defendants have offered legitimate, non-retaliatory and non-discriminatory reasons for
the decision to terminate Plaintiff’s employment. Plaintiff has failed to offer evidence that the
actions challenged were violative of public policy. Likewise, Plaintiff has failed to offer
evidence which could lead a reasonable trier of fact to discredit the proffered legitimate, non-
retaliatory, non-discriminatory reasons; to find that the proffered reasons were pretextual, or to
11
The undersigned finds that Plaintiff’s reliance on Telesford v. Maryland Provo-I Med. Servs., P.C., 204 F. Supp.
3d 120, 131 (D.D.C. 2016), see Plaintiff’s Opposition at 25-26, is misplaced. In Telesford, the Court stated the
settled proposition that “there can be no individual liability” under Title VII against the individual defendants. 204
F. Supp. 3d at 131 (citation omitted). The Court reached the opposite conclusion with respect to the individual
defendants in the context of the plaintiff’s Section 1981 claims. However, that conclusion was based upon a finding
that the plaintiff had offered evidence giving rise to a viable Section 1981 claim, see id. at 132; in the instant action,
the undersigned has determined that Plaintiff failed to do so.
20
Rae v. Children’s National Medical Center, et al. Appendix A
find that retaliation against him was the true reason for the termination of his employment.
It is therefore, this 28th day of March, 2018,
RECOMMENDED that Defendants Children’s National Medical Center, et al.’s Motion
for Summary Judgment (ECF No. 59) be GRANTED with respect to the remaining claims and
Defendants. 12
/s/ .
DEBORAH A. ROBINSON
United States Magistrate Judge
Within fourteen days, any party may file written objections to this report and
recommendation. The objections shall specifically identify the portions of the findings and
recommendations to which objection is made and the basis of each objection. In the
absence of timely objections, further review of issues addressed may be deemed waived.
12
See supra n.2.
21