UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LUIGI BUITRAGO,
Plaintiff, v. No. 18-cv-261(EGS) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiff Luigi Buitrago (“Mr. Buitrago” or “Plaintiff”)
initiated this suit against the District of Columbia (“the
District” or “Defendant”) based on Defendant’s response to Mr.
Buitrago’s disability. See Third Am. Compl., ECF No. 29 ¶¶ 17-
79. Mr. Buitrago’s remaining claims against Defendant are: (1)
discrimination on the basis of national origin under Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-2 et seq.; (2) discrimination in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et
seq.; and (3) retaliation in violation of Title VII and the ADA.
See Mem. Op. (“MTD Op.”), ECF No. 35 at 35. 1 Pending before the
Court is Defendant’s Motion for Summary Judgment. See Def.’s
Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 45 at 1. Upon careful
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. consideration of the motion, the response, the reply thereto,
the entire record herein, and the applicable law, the Court
GRANTS Defendant’s Motion for Summary Judgment.
I. Background 2
Mr. Buitrago began working for the District as a Public
Health Analyst in the Department of Health in 2005. Def.’s
Statement of Undisputed Material Facts (“SOMF”), ECF No. 45-1
¶ 1. The following year, he was injured on the job, which
required several surgeries, disability leave in 2011, and
ongoing physical therapy. Id. ¶ 2. The District provided Mr.
Buitrago with an ergonomic workstation as an accommodation for
his injury. Id. ¶ 12. He complained that the station did not
give him enough workspace and his union later filed a grievance
against the District regarding the issue. Id. ¶¶ 13, 17. The
2 When responding to a motion for summary judgment, the Federal Rules of Civil Procedure, the Rules of the U.S. District Court for the District of Columbia, and the Standing Order of this Court all require a party to identify which of the opposing party’s facts they consider in dispute. See Fed. R. Civ. P. 56(c)(1)(A); LCvR 7(h)(1); Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan, ECF No. 2 at 8-10. Mr. Buitrago fails to address any of the facts the District offers in its Statement of Undisputed Material Facts. Furthermore, Mr. Buitrago only lists four items in his “Statement of Genuine Issues,” none of which directly address any of the facts asserted by the District. See Mem. in Supp. of Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 47 at 1-2. Therefore, as permitted by the Federal Rules of Civil Procedure and this District’s Local Rules, the Court considers Defendant’s statement of material facts undisputed, see Fed. R. Civ. P. 56(e)(2); LCvR (h)(1), and those facts form the basis for this background. 2 District hired an ergonomist and he concluded that although the
workstation could not be altered “to meet [Mr. Buitrago’s]
specifications,” it also “did not present any ergonomic barriers
to [Mr. Buitrago] performing his work.” Id. ¶¶ 14-16.
In 2012, Mr. Buitrago was laid off as part of a reduction
in force and he filed an EEOC charge alleging his termination
was discrimination based on his disability. See id. ¶ 3. In
2013, Mr. Buitrago and the District entered into a settlement
agreement which reinstated Mr. Buitrago and provided him
backpay, accrued leave, and a continuation of his flexible work
schedule to accommodate his physical therapy. Id. ¶ 4. Upon
returning to work in 2013, Mr. Buitrago again objected to the
ergonomic workstation, but in 2015 dropped his request for the
accommodation. See id. ¶¶ 18-19.
In June 2015, Mr. Buitrago filed another EEOC charge,
alleging retaliation and discrimination based on his sex,
national origin, and disability. Id. ¶ 11. His charge alleged
that his supervisor violated the 2013 settlement agreement by
not providing him with a flexible work schedule. Id. ¶ 5. He
alleged that this action was also discrimination based on his
national origin because he found out that two of his African-
American co-workers were provided flexible work schedules and he
was not. Id. ¶¶ 7-8. The District claimed that Mr. Buitrago was
denied his request for an eight-hour work schedule because the
3 District policy requires an eight-hour workday with a mandatory
thirty-minute, uncompensated lunch period. Id. ¶¶ 6, 9-10.
In 2016, Mr. Buitrago claimed that the District stopped
paying for his physical therapy appointments. Id. ¶ 21. However,
the District explained that Mr. Buitrago’s “pre-approved
physical therapy was authorized and paid for,” but his new
requests for chiropractic care were not covered, a decision made
not by the District but by the third-party worker’s compensation
carrier. See id. ¶¶ 26-27. Mr. Buitrago also claims that he was
transferred to a different position within the District, but
that the transfer was intended to “find out if there was a
better match for [him] and the program in an effort to make
[him] more comfortable.” Id. ¶ 28. Mr. Buitrago believed the
change was “retaliatory because it occurred after he submitted
an EEOC complaint.” Id. ¶ 29. Finally, Mr. Buitrago claims that
he was not given work by his direct supervisor when he returned
to his previous position, but also stated that he “remained in
charge of all the programs, assisted co-workers, and received
assignments from the division chief.” Id. ¶ 30.
In 2017, Mr. Buitrago was notified that his temporary
appointment was not being renewed and he was terminated later
that year. See Pl.’s Ex. D, ECF No. 47-4 at 1. Mr. Buitrago’s
employment in a term position was specified in his 2013
settlement agreement. See SOMF, ECF No. 45-1 ¶ 31.
4 Mr. Buitrago initiated this suit in February 2018. See
Compl., ECF No. 1. After several motions to dismiss and
responsive amended complaints, Mr. Buitrago filed his operative
Third Amended Complaint in June 2019. Third Am. Compl., ECF No.
29. He alleged four counts: (1) that the District discriminated
against him on the basis of his national origin, id. ¶¶ 80-87;
(2) that the District discriminated against him based on his
disability, id. ¶¶ 88-94; (3) that the District retaliated
against him in several ways including transferring him, forcing
him to reapply for his position, preventing him from performing
his duties, withdrawing payment for his physical therapy, and
ultimately terminating him, id. ¶¶ 95-100; and (4) that the
District breached the 2013 settlement agreement, id. ¶¶ 101-08.
The District filed its Motion to Dismiss the Third Amended
Complaint in July 2019. See Defs.’ Mot. to Dismiss Pl.’s Third
Am. Compl., ECF No. 30. In March 2020, this Court granted
Defendants’ motion for the breach of contract claim and some of
the retaliatory acts identified in Mr. Buitrago’s claims of
retaliation, but let his claims for national origin
discrimination, disability discrimination, and retaliation based
on four specific adverse actions proceed. See MTD Op., ECF No.
35 at 35.
In March 2021, the District filed the current Motion for
Summary Judgment. See Def.’s Mot., ECF No. 45. Mr. Buitrago
5 filed his brief in opposition the following month, see Pl.’s
Opp’n, ECF No. 47; and Defendant filed its reply, see Def.
District of Columbia’s Reply in Further Supp. of Its Mot. for
Summ. J., ECF No. 48. The District’s motion is now ripe and
ready for adjudication.
II. Standard of Review
Federal Rule of Civil Procedure 56 requires the Court to
grant a motion for summary judgment when “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
“material” fact is one that could “affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). And a dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. The moving party bears the burden
of “informing the district court of the basis for its motion” as
well as “identifying 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) (internal
quotation marks omitted); see also Fed. R. Civ. P. 56(c)(1)(A).
To defeat summary judgment, the nonmoving party must “go
beyond the pleadings” and “designate specific facts showing that
6 there is a genuine issue [of material fact] for trial.” Celotex
Corp., 477 U.S. at 324 (internal quotation marks omitted). In
evaluating a summary judgment motion, “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255. However,
the nonmoving party’s opposition “must consist of more than mere
unsupported allegations or denials and must be supported by
affidavits or other competent evidence” in the record. Musgrove
v. District of Columbia, 775 F. Supp. 2d 158, 164 (D.D.C. 2011);
see also Celotex Corp., 477 U.S. at 324. If the evidence
favoring the nonmoving party is “merely colorable, or is not
significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (internal citations omitted).
III. Analysis
This Court, in its previous opinion on Defendant’s Motion
to Dismiss, specified that “Mr. Buitrago’s remaining claims are
(1) discrimination on the basis of national origin . . . ; (2)
discrimination on the basis of disability under the ADA; and
[(3)] retaliation under Title VII and the ADA as to his claims
that [(i)] DOH would no longer pay for his physical therapy
sessions; [(ii)] he was reassigned to a different division at
DOH; [(iii)] he was returned to his former position, but was not
allowed to resume his former duties; and [(iv)] he was forced to
reapply and compete for his job.” MTD Op., ECF No. 35 at 35. 7 Defendant argues that its Motion for Summary Judgment should be
granted because the “undisputed facts demonstrate that Plaintiff
cannot prove actionable claims under these statutes.” Def.’s
Mot., ECF No. 45 at 1.
A. Discrimination on the Basis of National Origin
Title VII prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of [his] race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2
(a)(1). “[T]he two essential elements of a discrimination claim
are that (i) the plaintiff suffered an adverse employment action
(ii) because of the plaintiff’s race, color, religion, sex, [or]
national origin . . . .” Baloch v. Kempthorne, 550 F.3d 1191,
1196 (D.C. Cir. 2008). “A plaintiff must prove both elements to
sustain a discrimination claim.” Id.
When employees have no direct evidence of discrimination—
and instead rely on circumstantial evidence to establish an
inference of discrimination—Courts employ the three-step
McDonnell Douglas burden-shifting framework. See Figueroa v.
Pompeo, 923 F.3d 1078, 1086 (D.C. Cir. 2019). Under this “method
of proof,” (1) “the employee must establish a prima facie case”;
(2) if they succeed, “the burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its
actions”; and (3) “[i]f the employer meets its burden of
8 production, the burden then shifts back to the employee, who
must prove that, despite the proffered reason, [they have] been
the victim of intentional discrimination.” Id. (internal
quotation marks omitted). However, when considering a motion for
summary judgment, instead of focusing on a plaintiff’s prima
facie case, the Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has clarified that “[i]n a Title VII
disparate-treatment suit where an employee has suffered an
adverse employment action and an employer has asserted a
legitimate, non-discriminatory reason for the decision,” “the
district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color,
religion, sex, or national origin?” Brady v. Off. of the
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also
Figueroa, 923 F.3d at 1087 (describing the Brady question as “a
shortcut for the District Court to tackle the critical question
of discrimination” (internal quotation marks omitted)).
Mr. Buitrago’s claim for national origin discrimination
rests on the adverse action of Defendant “denying his request
for a flexible work schedule,” see MTD Op., ECF No. 35 at 13;
which he claims raises an inference of discrimination because
9 two African-American co-workers, “who also had a reasonable
accommodation,” were “provide[d] a flexible work schedule,” see
id. at 4; Pl.’s Opp’n, ECF No. 47 at 4. Defendant challenges
this claim on two grounds. First, the District claims that Mr.
Buitrago has provided “no admissible evidence that Plaintiff was
denied an eight hour flexible work schedule based on his
national origin.” Def.’s Mot., ECF No. 45 at 11. And second, the
District argues that Mr. Buitrago “cannot demonstrate” that the
District’s proffered legitimate, non-discriminatory reason for
the decision—“adherence to the District Personnel Manual”—“is
pretext.” Id. at 13. Mr. Buitrago in opposition argues that his
claim should survive summary judgment because “Defendant has not
produced sufficient evidence for a reasonable jury to find that
their asserted reason was the actual reason, and that
subsequently, a dispute of material fact as to a pretextual
reason has been established,” Pl.’s Opp’n, ECF No. 47 at 3; and
that “a reasonable jury could find that the evidence submitted
demonstrating the disparate treatment between Plaintiff and his
two referenced colleagues are probative of pretext,” citing the
Third Amended Complaint, id. at 4.
Looking at the evidence on the overall question of
discrimination, the Court concludes that Mr. Buitrago has not
“produced sufficient evidence for a reasonable jury to find that
the employer’s asserted non-discriminatory reason was not the
10 actual reason and that the employer intentionally discriminated
against [him].” Brady, 520 F.3d at 494. Beginning with pretext,
Defendant argues that Mr. Buitrago “was not denied an eight-hour
flexible work schedule because he is of Panamanian descent” but
rather, “because the District Personnel Manual requires an
eight-hour work day with a 30 minute break.” Def.’s Mot., ECF
No. 45 at 13. For evidentiary support, Defendant cites its
Statement of Material Facts, which in turn cites the District’s
Personnel Manual. See id.; SOMF, ECF No. 45-1 ¶¶ 9-10; Def.’s
Ex. 5, ECF No. 45-7 at 2-3 (explaining that a “basic forty-hour
(40-hour) workweek shall be scheduled”); Def.’s Ex. 6, ECF No.
45-8 at 2 (explaining that a 30-minute lunch period “shall be in
addition to his or her regularly scheduled duty hours”).
Mr. Buitrago does not dispute the validity or relevance of
this evidence or offer any of his own to combat Defendant’s
assertions. Rather, he argues that “the evidence submitted
demonstrating the disparate treatment between [him] and his two
referenced colleagues are probative of pretext.” Pl.’s Opp’n,
ECF No. 47 at 4. However, in explaining what “evidence”
establishes disparate treatment, Mr. Buitrago cites only his
Third Amended Complaint. At the summary judgment stage, an
unverified complaint is insufficient evidence to survive a
motion for summary judgment. See Grimes v. District of Columbia,
794 F.3d 83, 94 (D.C. Cir. 2015) (“it is well established that
11 [a plaintiff] cannot rely on the allegations of her own
complaint in response to a summary judgment motion, but must
substantiate them with evidence”); id. at 94 n.5 (observing that
a verified complaint “has the same evidentiary value as a
plaintiff’s affidavit or sworn declaration”); Fed. R. Civ. P.
56(c)(1)(A) (allowing parties in summary judgment proceedings to
cite to evidence such as “depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”). Thus,
Mr. Buitrago has not pointed to any evidence in the record
showing a genuine dispute of material fact sufficient to
overcome Defendant’s arguments.
Furthermore, although there exists evidence in the record
substantiating Mr. Buitrago’s factual claim from the Third
Amended Complaint, that evidence is also insufficient to
overcome the present motion because it is not admissible. See
Fed. R. Civ. P. 56(c)(2). Defendant points out that Mr.
Buitrago, in his deposition, stated that two African-American
coworkers received eight-hour work schedules. See Def.’s Mot.,
ECF No. 45 at 11; Def.’s Ex. 2, ECF No. 45-4 at 9-10. But he
stated that he knew these facts because his co-workers told him.
Def.’s Ex. 2, ECF No. 45-4 at 10. He claimed that the
information was “discussed in a minute meeting” and he could
12 “ask for the meeting . . . records.” Id. But Mr. Buitrago
neither cites to nor has attached to his briefing any evidence
from that meeting. Thus, the record only contains Mr. Buitrago’s
own statement about what his co-workers told him about their
work schedules. As Defendant notes, this statement is hearsay
because Mr. Buitrago is relaying an out-of-court statement to
establish the truth of the matter asserted—that his co-workers
actually received eight-hour work schedules. See Fed. R. Evid.
801(c). Mr. Buitrago does not address Defendant’s hearsay
argument and thus fails to establish that the statement would
either be not hearsay or would fall under a hearsay exception.
See Fed. R. Evid. 801(d). Therefore, because Mr. Buitrago’s
statement about his co-workers’ schedules would be inadmissible
in court, the statement is also insufficient to defeat summary
judgment. See Gleklen v. Democratic Cong. Campaign Comm., Inc.,
199 F.3d 1365, 1369 (D.C. Cir. 2000) (affirming grant of summary
judgment to a defendant because a plaintiff’s “hearsay . . .
counts for nothing” on a motion for summary judgment).
Since Mr. Buitrago’s sole support for the inference of
national origin discrimination comes from inadmissible evidence,
the Court cannot conclude that Mr. Buitrago has met his burden
of “produc[ing] sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason was
13 discriminated against [him].” Brady, 520 F.3d at 494. Therefore,
the Court GRANTS Defendant’s Motion for Summary Judgment on Mr.
Buitrago’s discrimination claim based on national origin.
B. Discrimination Based on Disability.
The ADA prohibits employers from discriminating “against a
qualified individual on the basis of disability,” 42 U.S.C.
§ 12112(a); and requires employers to make “reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability,” id.
§ 12112(b)(5)(A). To establish a valid failure-to-accommodate
claim, “a plaintiff must establish by a preponderance of the
evidence that ‘(1) she was a qualified individual with a
disability, (2) the [employer] had notice of her disability and
(3) the [employer] denied her request for a reasonable
accommodation.’” Waggel v. George Washington Univ., 957 F.3d
1364, 1371 (D.C. Cir. 2020) (quoting Ward v. McDonald, 762 F.3d
24, 31 (D.C. Cir. 2014)). An “‘employer need only provide some
reasonable accommodation,’ not the accommodation that the
employee requests or prefers.” Carter v. Nelson, No. 20-5111,
2021 WL 6139250, at *1 (D.C. Cir. Dec. 27, 2021) (quoting Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en
banc)).
In the Third Amended Complaint, Mr. Buitrago alleged that
the District violated the ADA “when Defendant denied Plaintiff’s
14 request for a reasonable accommodation in the form of an
ergonomic workstation.” Third Am. Compl., ECF No. 29 ¶ 93. On
this Motion for Summary Judgment, the District argues that Mr.
Buitrago’s failure-to-accommodate claim fails because the
“[u]ndisputed facts demonstrate that Plaintiff was provided with
a reasonable accommodation, specifically an ergonomic
workstation that did not present any ergonomic barriers to
Plaintiff performing his work.” Def.’s Mot., ECF No. 45 at 14.
The District also acknowledges that while Mr. Buitrago
previously objected “to the amount of workspace provided” by the
workstation, “the ADA does not require employers to provide the
accommodation that the employee requests or prefers; it simply
requires them to provide some reasonable accommodation.” Id.
Mr. Buitrago does not mention his failure-to-accommodate
claim in his briefing on this motion. He does not discuss or
cite to any evidence related to his request for an ergonomic
workstation. In his “Statement of Genuine Issues,” in which he
states four matters which he seems to claim are material and in
dispute, Mr. Buitrago only mentions his flexible work schedule
and administrative leave for physical therapy, see Pl.’s Opp’n,
ECF No. 47 at 1; but never argues in the briefing that either
issue is the basis for a failure-to-accommodate claim.
Therefore, Mr. Buitrago has abandoned his failure-to-accommodate
claim by not addressing it in his briefing. See Al-Gharawy v.
15 U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d 1, 19 (D.D.C. 2022)
(concluding that “Plaintiffs appear to abandon [a] claim”
because they did “not mention” it “[i]n their opposition”); cf.
Posters ‘N’ Things, Ltd. v. U.S., 511 U.S. 513, 527 (1994)
(concluding that a party “abandons” an issue where “petitioners’
brief on the merits fails to address the issue”). Furthermore,
because Mr. Buitrago does not dispute the validity or relevance
of the District’s evidence that it accommodated his request for
an ergonomic workstation, Mr. Buitrago has also conceded the
argument that a reasonable accommodation was made for his
request. See Am. Waterways Operators v. Regan, 590 F. Supp. 3d
126, 138 (D.D.C. 2022) (“‘If a party fails to counter an
argument that the opposing party makes in a motion, the court
may treat that argument as conceded.’” (quoting Day v. D.C.
Dep’t of Consumer & Regul. Affs., 191 F. Supp. 2d 154, 159
(D.D.C. 2002))). Accordingly, the Court GRANTS Defendant’s
Motion for Summary Judgment on Mr. Buitrago’s failure-to-
accommodate claim.
C. Retaliation
Title VII and the ADA prohibit retaliating against
employees who file complaints of discrimination. See 42 U.S.C.
§ 2000e-3(a); 42 U.S.C. § 12203(a). Under both statutes, an
employee must establish that they: (1) “engaged in protected
activity,” (2) were “subjected to adverse action by the
16 employer,” and (3) that “there existed a causal link between the
adverse action and the protected activity.” Smith v. District of
Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005) (internal quotation
marks omitted). Like discrimination claims under Title VII, when
an employee does not have direct evidence of causation—and
instead intends to rely on circumstantial evidence to establish
an inference that the adverse employment action was due to the
employee’s protected activity—Courts employ the three-step
McDonnell Douglas burden shifting framework. See id. (adopting
the Title VII framework for “ADA retaliation suits”).
This Court specified, at the end of its opinion regarding
Defendant’s Motion to Dismiss, that Mr. Buitrago’s only
remaining claims for retaliation are based on: (1) that DOH
would no longer pay for Mr. Buitrago’s physical therapy
sessions; (2) that Mr. Buitrago was reassigned to a different
division at DOH; (3) that Mr. Buitrago was returned to his
former position, but was not allowed to resume his former
duties; and (4) that Mr. Buitrago was forced to reapply and
compete for his job. See MTD Op., ECF No. 35 at 35. The District
argues that all four claims fail because Mr. Buitrago “cannot
prove that any of these acts were taken as a result of his
protected EEO activity,” Def.’s Mot., ECF No. 45 at 16; and that
even if Mr. Buitrago “could prove a prima facie case of
retaliation, the District had legitimate, non-retaliatory
17 reasons for the . . . employment actions at issue,” id. at 19.
In his briefing on the current motion, Mr. Buitrago
significantly alters his claims. First, he argues that his
protected activity was “when he attempted to communicate with
his employer regarding his desired disability accommodations and
need for reasonable accommodation for medical treatment.” Pl.’s
Opp’n, ECF No. 47 at 5. Second, he identifies three adverse
actions in connection with this protected activity: (1) that he
was “subjected to negative evaluation comments and reprimands
from his supervisor”; (2) that he “was not given work
assignments by his supervisor, who was angered by [his] actions
in contacting the supervisor’s superiors in an effort to find
substantive work”; and (3) that “he was place[d] on
administrative leave in late 2016 and ultimately terminated in
May 2017 under the guise of a reduction in force.” Id. at 5-6.
Finally, the only causal connection Mr. Buitrago identifies is
the temporal connection to his termination which occurred “four
months after he was granted permission to file a formal EEOC
complaint relating to his attempted protected activity
communicating with HR about his concerns.” Id. at 6.
Turning first to the four retaliation claims which survived
Defendant’s prior Motion to Dismiss, the Court concludes that
Mr. Buitrago either abandoned the claims or failed to point to
any evidence in the record showing a genuine dispute of material
18 fact. On the first issue of payment for physical therapy
sessions, Mr. Buitrago seems to abandon his previous argument,
see MTD Op., ECF No. 35 at 26-28; that the District’s refusal to
pay was a retaliatory action. On this motion, Mr. Buitrago
claims that his request for the District to pay for the physical
therapy sessions was itself the protected activity, not the
retaliatory effect of protected activity. See Pl.’s Opp’n, ECF
No. 47 at 5. Mr. Buitrago does not address Defendant’s argument
that there is no causal connection between the District’s
failure to pay for Mr. Buitrago’s sessions and his protected
activity because “[t]here is no evidence that any District
employee . . . was aware of [his] EEOC complaints or that anyone
at this separate District agency would be motivated to retaliate
against [him].” Def.’s Mot., ECF No. 45 at 17. Mr. Buitrago also
does not address Defendant’s proffered non-discriminatory reason
for not paying for his appointments, namely that his “pre-
approved physical therapy was authorized and paid for,” but his
“treatment with unauthorized, other physicians, specifically
chiropractic care . . . was not covered.” Id. at 19. He also
does not dispute that this determination was “the third-party
worker’s compensation carrier’s determination, not a retaliatory
determination made by [the District].” Id. Thus, the Court
concludes that Mr. Buitrago has conceded Defendant’s arguments
by failing to address them in his briefing and abandoned his
19 claim for retaliation based on the District’s failure to pay for
his therapy appointments. See Al-Gharawy, 617 F. Supp. 3d at 19;
Am. Waterways Operators, 590 F. Supp. 3d at 138.
The Court reaches the same conclusion for Mr. Buitrago’s
retaliation claim based on his reassignment to a different
division of DOH. Mr. Buitrago does not once mention reassignment
in his briefing on this motion. Therefore, he also fails to
address Defendant’s argument that “nothing in the summary
judgment record suggests that [the person who reassigned Mr.
Buitrago] was aware of [his] EEOC complaints.” Def.’s Mot., ECF
No. 45 at 17. Again, Mr. Buitrago concedes this argument and has
abandoned his claim by not mentioning either in his briefing.
See Al-Gharawy, 617 F. Supp. 3d at 19; Am. Waterways Operators,
590 F. Supp. 3d at 138.
The Court also reaches the same conclusion for Mr.
Buitrago’s retaliation claim based on him being forced to
reapply and compete for his job. Mr. Buitrago does not mention
this action in his briefing on this motion. In his “Statement of
Genuine Issues,” he claims that he “was not a term employee as
he was converted in a 2010 personnel action,” citing an attached
exhibit. See Pl.’s Opp’n, ECF No. 47 at 1; Pl.’s Ex. A, ECF No.
47-1 at 1. However, Mr. Buitrago never mentions, much less
argues the significance of, this purported personnel action in
his briefing. He does not use it to claim that he should not
20 have been forced to reapply and compete for his job. And he does
not use it to refute Defendant’s claim that “the settlement
agreement clearly states that [Mr. Buitrago] was returned to a
term position.” Def.’s Mot., ECF No. 45 at 19. Furthermore,
since the personnel action was from 2010 and the settlement
agreement was from 2013, see SOMF, ECF No. 45-1 ¶ 31; Mr.
Buitrago’s evidence has no bearing on Defendant’s argument or
evidence. Therefore, the Court concludes that Mr. Buitrago has
conceded the argument and abandoned his retaliation claim based
on being forced to reapply and compete for his job.
Mr. Buitrago’s claim that he was not allowed to return to
his former duties seems to correspond with his argument on this
motion that he was not given work assignments by his supervisor.
However, Mr. Buitrago points to no evidence in the record
indicating a genuine dispute of material fact to survive summary
judgment. In his briefing, he cites to his own deposition, where
he claims that he was “not allowed” to return to “[a]ll of” his
duties. See Pl.’s Opp’n, ECF No. 47 at 5-6; Def.’s Ex. 2, ECF
No. 45-4 at 18. He states that this action was an “adverse
action,” sufficient to sustain a claim of retaliation because
Mr. Buitrago “was not given work assignments by his supervisor,
who was angered by [his] actions in contacting the supervisor’s
superiors in an effort to find substantive work.” Pl.’s Opp’n,
21 ECF No. 47 at 5.
Even if the Court were to assume arguendo that this action
qualifies as an adverse action for a retaliation claim, Mr.
Buitrago does not argue and points to no evidence connecting
this action to his protected activity. In the Court’s previous
opinion ruling on Defendant’s Motion to Dismiss, this Court
allowed Mr. Buitrago’s claim to proceed because he was not
required “to establish each element of his prima facie case at
the motion to dismiss stage,” MTD Op., ECF No. 35 at 26; and his
allegations of “temporal proximity” were “sufficient to
withstand the District’s Motion to Dismiss,” id. at 28. However,
on this Motion for Summary Judgment, Mr. Buitrago does not state
in his briefing nor point to any evidence in the record
establishing when the purported adverse action occurred. Thus,
the Court has no basis to infer a causal connection through
temporal proximity. Furthermore, Mr. Buitrago offers no other
evidence or argument explaining the causal connection for this
adverse action. In his briefing, he only argues that a causal
connection exists based on temporal proximity for the adverse
action of being terminated. See Pl.’s Opp’n, ECF No. 47 at 6 (“A
causal connection is demonstrated in this case because
Plaintiff’s employer began moving to terminate Plaintiff four
22 communicating with HR about his concerns.”). Therefore, the
Court agrees with Defendant that there is “no evidence to
suggest that [Mr. Buitrago] was prevented from performing his
job duties as retaliation for his EEO activity.” Def.’s Mot.,
ECF No. 45 at 18.
Because Mr. Buitrago has either conceded, abandoned, or
failed to show a genuine dispute of material fact on his
remaining retaliation claims, the Court GRANTS Defendant’s
Motion for Summary Judgment on those claims.
The Court now turns to the two adverse actions Mr. Buitrago
identifies in his briefing on this motion but were not included
in this Court’s list of claims surviving Defendant’s prior
Motion to Dismiss. First, Mr. Buitrago claims that he “suffered
adverse actions following his protected activity when he was
subjected to negative evaluation comments and reprimands from
his supervisor, Ms. Quick.” Pl.’s Opp’n, ECF No. 47 at 5.
However, as Defendant points out, this is the first time Mr.
Buitrago has attempted to base a retaliation claim on these
actions. In the Third Amended Complaint, Mr. Buitrago stated
that he “received negative evaluations with comments about his
communication skills and was required to undergo training.”
Third Am. Compl., ECF No. 29 ¶ 43. But he claimed that “[t]hese
evaluations were discriminatory in nature because [Mr. Buitrago]
was the only Hispanic male under Quick’s supervision, and she
23 favored other African American females under her supervision.”
Id. ¶ 46. Furthermore, in his description of the claims of
retaliation, he makes no mention of the evaluation or comments.
See id. ¶¶ 97-99 (describing as retaliatory the acts of not
being allowed to return to his previous position, being
transferred to a new position, being forced to apply for his
position, being subjected to administrative leave, being
terminated, and Defendant withdrawing authorization for medical
treatment for his disability). Finally, Mr. Buitrago never
advanced this retaliation claim in response to Defendant’s prior
Motion to Dismiss. See generally MTD Op., ECF No. 35. It is
well-established that “a plaintiff is not permitted to raise new
claims at the summary judgment stage, where those claims were
not pleaded in the complaint.” Taylor v. Mills, 892 F. Supp. 2d
124, 137-38 (D.D.C. 2012) (collecting cases). Therefore, the
Court may not consider Mr. Buitrago’s retaliation claim based on
the negative comments and evaluation.
The other claim Mr. Buitrago attempts to advance in his
briefing is a claim for retaliation based on his being “place[d]
on administrative leave in late 2016 and ultimately terminated
in May 2017 under the guise of a reduction in force.” Pl.’s
Opp’n, ECF No. 47 at 6. This exact claim was dismissed by this
Court for failing to exhaust administrative remedies. See MTD
Op., ECF No. 35 at 31 (“Mr. Buitrago may not proceed on his
24 retaliation claim based on his termination and being placed on
administrative leave until the effective date of his termination
. . . [because he] has not exhausted his administrative remedies
as to his allegation that he was terminated in retaliation for
engaging in protected activity.”). Mr. Buitrago fails to mention
this Court’s dismissal, much less argue that the decision was
erroneous. Therefore, the Court stands by its previous
conclusion and refuses to consider Mr. Buitrago’s retaliation
claim based on his termination and administrative leave.
IV. Mr. Buitrago’s Representation Issues
On August 23, 2023, the Court granted Mr. Buitrago’s
counsel’s Motion to Withdraw and stayed proceedings in the case.
The Court stated that “[i]f new counsel has not entered an
appearance by October 30, 2023, Mr. Buitrago shall submit a
status report by that date informing the Court of the status of
his efforts to obtain new counsel or whether he will proceed pro
se.” Minute Order (Aug. 28, 2023). Thereafter, the Court granted
Mr. Buitrago an extension of time to respond to the court by
November 30, 2023. See Minute Order (Nov. 21, 2023). Mr.
Buitrago failed to respond to the Court’s order. See generally
Docket for Case 18-cv-261. On January 3, 2024, the Court sua
sponte ordered Mr. Buitrago to submit a status report informing
the Court by no later than January 31, 2024 of the status of his
efforts to secure representation. See Minute Order (Jan. 4,
25 2024). On February 7, 2024, the Court denied leave to file a
Notice of Appearance by putative counsel for Mr. Buitrago
because said counsel is not a member of the Bar of the District
Court for the District of Columbia and failed to comply with the
local rules regarding appearance pro hac vice. See Minute Order
(Feb. 7. 2024). On March 21, 2024, the Court again sua sponte
issued a Minute Order directing Mr. Buitrago to inform the Court
by no later than April 20, 2024 of his attempts to secure
representation. See Minute Order (Mar. 21, 2024). Mr. Buitrago
failed to comply with this Minute Order. Although Mr. Buitrago
has failed to comply with the Court’s orders, in an abundance of
caution, the Court will lift the stay in this case and delay
entry of the Order effectuating this Memorandum Opinion and the
Final Judgment in this case for 30 days.
V. Conclusion
For the reasons set forth above, the Court GRANTS
Defendant’s Motion for Summary Judgment, ECF No. 45. A separate
Order will accompany this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge July 3, 2024