Deloatch v. Harris Teeter Incorporated

• Court: District Court, District of Columbia
• Decided: July 13, 2011
• Docket: Civil Action No. 2010-0205
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MORESE DELOATCH : : Plaintiff, : Civil Action No.: 10-205 (RMU) : v. : Re Document No: 28 : HARRIS TEETER, INC., : : Defendant. :

MEMORANDUM OPINION

GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the defendant’s motion for summary judgment.

The plaintiff claims that his employer, Harris Teeter, Inc. (“the defendant”), violated various

federal statutes relating to employee compensation, workplace discrimination and medical leave.

See generally Am. Compl. Because the defendant demonstrates that the plaintiff does not make

a showing sufficient to establish the existence of an element essential to each of his claims, the

court grants the defendant’s motion.

II. FACTUAL & PROCEDURAL BACKGROUND

In October 2005 the plaintiff, an African American, began working as an associate in the

meat department of one of the defendant’s retail grocery stores. Am. Compl. ¶¶ 4-5. From 2005

until September 2008, the plaintiff worked for the defendant at Store # 83 located in Virginia.

See Def.’s Mot. for. Summ. J. (“Def.’s Mot.”), Ex. B (Pl.’s Dep.) at 50-55. After a brief stint at

another store, the plaintiff transitioned to Store #282, located in the District of Columbia, where he remained working from September 2008 until his separation from the defendant in June 2009.

See id.

The defendant asserts that, like all of its employees, the plaintiff received an “associate

guidebook,” detailing the defendant’s policies and procedures regarding hourly compensation,

anti-discrimination and employee leave. See id. at 55. According to the plaintiff, however, the

defendant largely failed to uphold its own policies. See generally Am. Compl.

The plaintiff filed this action in February 2010, asserting that the defendant violated

various federal statutes relating to employee compensation, workplace discrimination and

medical leave. See generally id. The factual allegations underlying these claims are discussed in

more detail in the court’s analysis below.

In December 2010, the defendant moved for summary judgment. See generally Def.’s

Mot. With the defendant’s motion now ripe for review, the court turns to the parties’ arguments

and the applicable legal standards.

III. ANALYSIS

A. Legal Standard for Summary Judgment

Summary judgment is appropriate when the pleadings and evidence 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are

“material,” a court must look to the substantive law on which each claim rests. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute” is one whose resolution

2 could establish an element of a claim or defense and, therefore, affect the outcome of the action.

Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion

for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to

the absence of evidence proffered by the nonmoving party, a moving party may succeed on

summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations

made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.

1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338

(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose

of the summary judgment device, which is to weed out those cases insufficiently meritorious to

warrant the expense of a jury trial.” Greene, 164 F.3d at 675.

B. The Court Grants the Defendant’s Motion for Summary Judgment on the Plaintiff’s Failure to Compensate Claims

The plaintiff alleges that the defendant failed to pay him for overtime and off-the-clock

3 work, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207. 1 Am. Compl. ¶¶

12-24. More specifically, the plaintiff asserts that the defendant willfully violated the FLSA by

not compensating him for the time spent: (1) completing product transfers 2 between stores, (2)

working certain shifts that he picked up in addition to his normal work schedule; (3) attending

certain training sessions, (4) working during periods which management erroneously punched

him out as being on a lunch break (referred to by the plaintiff as “improper management punch

outs”) and (5) working during meal periods that lasted less than 30 minutes (“short lunches”).

See Pl.’s Opp’n at 2.

The defendant argues that many of the plaintiff’s claims are time-barred under the

FLSA’s two-year statute of limitations period. Def.’s Mot. at 33. The defendant further

contends that the plaintiff does not adequately demonstrate “how much [off-the-clock] work he

performed, when he performed it, or that he was not paid for it” and has not submitted any

evidence that the defendant was aware of the plaintiff’s uncompensated work. Id. at 33. Finally,

1 In his complaint, the plaintiff also claims that the defendant violated the D.C. Wage Payment and Collection Law, D.C. Code Ann. §§ 32-1301 et seq., by failing to adequately compensate him for working certain “split shifts” and “short shifts” (shifts shorter than four hours). Am. Compl. ¶ 23. The defendant argues that this statute does not apply to the plaintiff because it never scheduled the plaintiff to work any “split shifts” or “short shifts.” Def.’s Mot. at 36-37. The plaintiff provides no argument in response, instead simply reiterating that the “[d]efendant violated the D.C. Wage Act by failing to pay [the plaintiff] the extra amounts when he worked a shift of less than [four] hours and when he worked a split shift.” Pl.’s Opp’n at 7. Because the plaintiff has not provided any factual or legal analysis in response to the defendant’s argument, the court grants as conceded the defendant’s motion for summary judgment with respect to the plaintiff’s D.C. Wage Payment and Collection Law claims. See e.g., Ivanov v. Sunset Pools Mgmt., 567 F. Supp. 2d 189, 191 (D.D.C. 2008 (treating the defendant’s motion for summary judgment as conceded because the plaintiff failed to address the defendant’s claims and granting summary judgment to the defendants as to those claims (citing LCvR 7(m)). 2 A “product transfer” or “product pick up” involves transferring product from one Harris Teeter location to another because of low inventory. See Pl.’s Statement of Material Facts in Dispute (“Pl.’s Statement”) at 11. According to the plaintiff, this usually required him to drive from his home store to another location while off the clock. Id.

4 the defendant alternatively maintains that the plaintiff’s allegations of uncompensated work

occurred “perhaps a handful of times” and therefore should be treated as de minimis. Id. at 34.

In response, the plaintiff asserts that he has sufficiently raised a “reasonable inference” as

to the amount and extent of the work he performed. See Pl.’s Opp’n at 11. Further, the plaintiff

asserts that his claims are not de minimis because they cannot be categorized as being

“insubstantial or insignificant periods of time.” See id. at 9.

As a threshold matter, the court determines that many of the plaintiff’s claims are barred

by the FLSA’s two-year statute of limitations. An action to collect unpaid overtime is “forever

barred unless commenced within two years after the cause of action accrued, except that a cause

of action arising out of a willful violation may be commenced within three years after the cause

of action accrued.” Figueroa v. D.C. Metro. Police Dep’t, 633 F.3d 1129 (D.C. Cir. 2011)

(quoting 29 U.S.C. § 255(a) (2009)). A FLSA violation is willful if the employer knows, or

shows reckless disregard, as to whether its conduct is prohibited by the FLSA. McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 133 (1988). Mere negligence on behalf of an employer is

insufficient to trigger the three-year limitations period under the FLSA. Id.

The plaintiff has provided no evidence that the defendant acted recklessly or willfully

with regard to its alleged failure to pay him for overtime work. See generally Pl.’s Opp’n.

Indeed, the defendant’s time and attendance policies explicitly outlined procedures to ensure

compliance with the FLSA, and the record reflects that the defendant sought to monitor its

compliance through routine audits of employee time records. See Def.’s Mot., Ex. A (Associates

Guidebook) at 13; Def.’s Mot., Ex. 5 (Vines’s Decl.) at ¶ 9. Accordingly, because the plaintiff

has failed to provide evidence of either a willful or reckless violation of the FLSA, any alleged

violations that occurred before February 5, 2008, two years prior to the date the plaintiff filed his

5 Complaint, are barred under FLSA’s two year statute of limitations. See 29 U.S.C. § 255(a); see

also Phuong v. Nat’l Acad. Of Scis., 901 F. Supp. 12, 15 (D.D.C. 1995) (granting summary

judgment on the issue of statute of limitations because the employee’s conclusory and

unsupported allegations were insufficient to show that the defendant had willfully violated the

FLSA).

Turning to the plaintiff’s allegations of uncompensated work arising after February 5,

2008, the FLSA requires that an employee must be paid overtime wages for hours worked in

excess of forty hours per week. 29 U.S.C. § 207(a)(1); see also id. § 216(b) (providing that

affected employees may recover for violations of the FLSA’s overtime provision). An employee

seeking unpaid overtime compensation under the FLSA has the “burden of proving that he

performed work for which he was not properly compensated.” Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 687-88 (1946). An employee may discharge this burden if he “proves that he

has in fact performed work for which he was improperly compensated and if he produces

sufficient evidence to show the amount and extent of that work as a matter of just and reasonable

inference.” Mt. Clemens Pottery Co., 328 U.S. at 687; see also Hunter v. Sprint Corp., 453 F.

Supp. 2d 44, 52-53 (D.D.C. 2006). If the employee provides such evidence, “[t]he burden then

shifts to the employer to come forward with evidence of the precise amount of work performed

or with evidence to negative the reasonableness of the inference to be drawn from the

employee’s evidence.” Id. at 687-88.

Notably, any unpaid overtime must not be de minimis, meaning that the employee must

be “required to give up a substantial measure of his time and effort” for compensable working

time to be involved. See Mt. Clemens Pottery Co., 328 U.S. at 692 (determining that the de

minimis doctrine permits employers to disregard for purposes of the FLSA otherwise

6 compensable work “[w]hen the matter in issue concerns only a few seconds or minutes of work

beyond the scheduled working hours”). Courts have considered three factors in determining

whether working time is de minimis: (1) the practical administrative difficulty of recording

additional time; (2) the size of the claim in the aggregate; and (3) whether such work was

performed on a regular basis. Singh v. City of New York, 524 F.3d 361, 370-71 (2d Cir. 2008);

De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 374-75 (3d Cir. 2007); Lindow v. United States,

738 F.2d 1057, 1063 (9th Cir. 1984).

Here, the plaintiff’s only evidence of uncompensated work is his own deposition

testimony and his answers to the defendant’s interrogatories. See generally Pl.’s Opp’n. With

respect to his claims corresponding to short meal periods, improper management punch outs and

unpaid training sessions, the plaintiff proffers a log of hours which is not based on his own

personal knowledge, see Pl.’s Opp’n, Ex. 14 (Pl.’s Answers to Interrog.) at 5-9, but rather, was

compiled based on his attorney’s estimates, 3 see Def.’s Mot., Ex. B (Pl.’s Dep.) at 199 (the

plaintiff’s testimony that he did not know if the information contained in the list of short meal

periods and improper management punch outs was correct because his attorney “did the research

on it”); id. at 234 (the plaintiff’s testimony acknowledging that he did not have any basis or

evidence to support his allegation of unpaid training time because his attorney had estimated the

hours).

3 The plaintiff does appear to recall one instance during which he was requested by his manager to work over his lunch period in order to assist with a refrigeration problem. See Pl.’s Opp’n at 11; see also id., Ex. 1 (Pl.’s Dep.) at 158-59. This lone event, however, would at most raise a claim for a short amount of uncompensated time and would be for work that was not performed on a regular basis. As such, the court determines that the claim is de minimis. See Singh v. City of New York, 524 F.3d 361, 370-71 (2d Cir. 2008) (noting that when work off the clock is not performed on a regular basis such time may be considered de minimis).

7 It is well established that evidence not based on personal knowledge is insufficient to

defeat a motion for summary judgment. FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration

used to support or oppose a motion must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or declarant is competent to testify on

the matters stated.”); Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir.

1981) (noting that the “requirement of personal knowledge by the affiant is unequivocal, and

cannot be circumvented” and that “[a]n affidavit based merely on information and belief is

unacceptable”). Moreover, “[t]he mere arguments of counsel . . . are not evidence” that may be

used to defeat a motion for summary judgment. Barnette v. Ridge, 2004 WL 3257071, at *6 n.6

(D.D.C. 2004); see also Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1372 (3d Cir. 1996)

(“[L]egal memoranda and oral argument are not evidence and cannot by themselves create a

factual dispute sufficient to defeat a summary judgment motion.”) (internal quotation marks and

citation omitted). Accordingly, because the plaintiff provides no reliable evidence of

uncompensated time for short meals, improper management punch outs and “unpaid training,”

no reasonable juror could draw a “just and reasonable inference” regarding “the amount and

extent” that the plaintiff had allegedly performed without payment. Mt. Clemens Pottery Co.,

328 U.S. at 687.

The plaintiff’s allegations of uncompensated product transfers and pick up shifts, on the

other hand, appear to be based on his personal knowledge communicated through his own

deposition testimony. 4 Pl.’s Statement at 11. The plaintiff’s assertions are, however, largely

4 Notably, the plaintiff also directs the court to “an affidavit asserting that he was requested by management to travel to other stores on his way to work to pick up product,” see Pl.’s Opp’n at 10. Assuming that the plaintiff is referring to his own sworn affidavit, Pl.’s Opp’n, Ex. 12, the court is unable to find any reference to the unpaid product pickups within this document, see generally id. 8 conclusory and unsubstantiated by factual detail. See Pl.’s Opp’n, Ex. 1 (Pl.’s Dep.) at 246-47

(the plaintiff’s testimony that he performed approximately twelve product transfers that he

estimated took between forty-five minutes to an hour to complete, yet providing dates for only

two relevant product transfers 5); see id. at 141-44 (the plaintiff’s testimony that he completed

five unpaid “pick up shifts,” providing only minimal details regarding the days in question and

without any substantial discussion of the work he performed). Such evidence is hardly sufficient

grounds upon which a reasonable juror could infer the amount and extent of uncompensated

work allegedly performed by the plaintiff. Lee v. Vance Exec. Prot. Inc., 7 F. App’x. 160, 166

(4th Cir. 2001) (affirming summary judgment for the plaintiff’s FLSA claims because of

“insufficient evidence to estimate the amount and extent of [unrecorded] hours” that he worked,

notwithstanding his general testimony that he was asked to run errands for clients after his shifts

had been scheduled to end).

Even assuming, however, that the plaintiff’s evidence is sufficient, the plaintiff has failed

to rebut the defendant’s evidence negating the reasonableness of the plaintiff’s allegations. See

Def.’s Mot. at 34-35. With respect to the plaintiff’s claims of five unpaid pickup shifts, the

defendant provides the plaintiff’s time cards from the days in question, revealing that he was

paid for at least one of the alleged days and indicating that the plaintiff did not punch his time

card at all on the remaining four days. Id., Ex. B at 19. As for the plaintiff’s alleged

uncompensated time conducting product transfers, the defendant points out that there are no

5 Although the plaintiff claims he conducted a product transfer on a third date, February 12, 2006, see Def.’s Mot. Ex. B (Pl.’s Dep.) at 228, the court has already noted that claims arising before February 5, 2008 are barred under FLSA’s two year statute of limitations. See supra Part III.B.

9 product transfer slips in the defendant’s records for the dates the plaintiff reports to have

conducted unpaid product transfers. 6 See Def.’s Mot., Ex. J.

The plaintiff fails to dispute any of the defendant’s evidence, relying solely on his own

conclusory statements which are void of any factual detail. See generally Pl.’s Opp’n. Indeed,

the plaintiff makes no mention of the alleged unpaid pickup shifts in his opposition to the

defendant’s motion for summary judgment. See generally Pl.’s Opp’n. Because the plaintiff

does not address his allegations of unpaid product transfers and pick up shifts in a meaningful

manner, the court determines that defendant has successfully negated the reasonableness of the

plaintiff’s claims. See Cement Kiln Recycling Coal. v. Envlt. Prot. Agency, 255 F.3d 855, 869

(D.C. Cir. 2001) (“A litigant does not properly raise an issue by addressing it in a cursory fashion

with only bare bone arguments”); see also Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)

(“[A] district court judge should not be obligated to sift through hundreds of pages of

depositions, affidavits, and interrogatories in order to make his own analysis and determination

of what may, or may not be a genuine issue of material disputed fact.”).

6 The court also notes that pursuant to the defendant’s associate guidebook, associates are strictly prohibited from working off the clock and must keep accurate records of the time they worked by recording the beginning and ending time of each work period, including the beginning and ending time of any meal period, split shift (a shift with more than one hour break scheduled within it, see D.C. MUN. REGS. Tit. 7 § 999.2 (defining split shift)), or an early departure from work for personal reasons, see Def.’s Mot., Ex. A (Associates Guidebook) at 13-14. Product transfers, moreover, are usually performed by salaried employees, but if an hourly employee is asked to perform a product transfer before or after his shift, the general policy is to have the employee “call-in” to his home store to ensure the defendant accurately accounts for the employee’s time. See Def.’s Mot., Ex. E, Dep. of Lisa Adams, store manager of Store # 282, (“Adams’s Dep.”) at 15-16.

10 Accordingly, because the plaintiff has neither provided any evidence from which a

reasonable juror could infer the amount and extent of uncompensated work performed, nor

adequately addressed the defendant’s evidence negating the reasonableness of his claims of

unpaid work off the clock, the court grants the defendant’s motion for summary judgment on the

plaintiff’s FLSA claims.

C. The Plaintiff’s Discrimination Claims

1. The Court Grants the Defendant’s Motion for Summary Judgment on the Plaintiff’s Disparate Treatment Claim

The plaintiff alleges that the defendant discriminated against him on the basis of his race,

violating 42 U.S.C. § 1981 and the District of Columbia Human Rights Act (“DCHRA”). 7 See

Am. Compl. ¶¶ 28, 34. In making these allegations, the plaintiff notes that during the course of

his employment, he participated in the defendant’s “BBT” program, 8 an on-the-job training

curriculum designed to train associates to become either department managers or assistant

market managers, depending on which program they entered. See Pl.’s Statement at 7; Vines’s

Dep. at 58-61. The plaintiff alleges that his BBT training program “was not equivalent to the

training provided to white and Asian employees.” Pl.’s Statement at 7; see also Pl’s Opp’n, Ex. 7 The court notes that the plaintiff alleges in his complaint that the defendant retaliated against him for “complaining about racial discrimination.” Am. Compl. ¶¶ 29-34. The plaintiff, however, makes no mention of this claim in his opposition to the defendant’s motion for summary judgment. See generally Pl.’s Opp’n. Accordingly, to the extent that the plaintiff raised a retaliation claim, the court treats it as conceded and grants summary judgment to the defendant with respect to the claim. Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” (citing Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997))). 8 The plaintiff entered the BBT program at Store #83 to become an assistant market manager, but discontinued his participation in March 2007. Def.’s Mot., Ex. B (Pl.’s Dep.) at 57, 61-62, 70. After moving to Store #282, the plaintiff re-enlisted in the BBT program, where he trained until his separation from the defendant in June 2009. See id. at Ex. 7.

11 1 (Pl.’s Dep.) at 66-67. More specifically, the plaintiff claims that although other employees

were permitted to use their notes during a final exam, he was not allowed to do so. Pl’s Opp’n,

Ex. 1 (Pl.’s Dep.) at 66-67. Moreover, he alleges that he was not permitted “to attend the weekly

managers meeting at the store while others in the BBT program attended these meetings,” and

received less hours of training than non-African American employees. Id. Based on these

differences in treatment while in the BBT program, the plaintiff alleges that the defendant

racially discriminated against him. 9 Pl.’s Statement at 7; see also Pl.’s Opp’n, Ex. 1 (Pl.’s Dep.)

at 61-67; Pl.’s Opp’n, Ex. 12 (Pl.’s Aff.) at ¶ 5.

The defendant asserts that “no BBT participants [were] allowed to use notes during the

final walkthrough.” Def.’s Mot. at 22; Vines’s Dep. at 62-63. Further, the defendant argues that

only employees training as “department managers,” were scheduled for forty-four hours of

training per week, and that all other employees, including “assistant managers” like the plaintiff,

were scheduled for forty hours of weekly training. Id.; Adams’s Dep. at 266. Similarly, the

defendant submits that its weekly manager meetings are “only for department managers and the

assistant department manager may attend only in the department manager’s absence.” Def.’s

9 The plaintiff also alleges that there is “direct evidence of discrimination” to support his race discrimination claim because a manager once addressed him using the term “nigger.” See Pl.’s Opp’n at 5. Direct evidence of discrimination is “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198, 204 (D.C. Cir. 1997). There is no indication, however, that the manager who allegedly used the term “nigger” was involved in any fashion with the allegedly discriminatory behavior concerning the BBT program or even the plaintiff’s termination. See generally Am. Compl.; Pl.’s Opp’n. Thus, the court determines that the plaintiff has not advanced direct evidence of discrimination to support any allegations of disparate treatment in the BBT program or with respect to his termination. See Hall v. Giant Food, Inc., 175 F.3d 1074, 1079-80 (D.C. Cir. 1999) (affirming summary judgment for the defendant because individual who remarked that the plaintiff was too old for the job did not participate in the termination decision).

12 Mot. at 22; See Vines’s Decl. at ¶ 33. The plaintiff provides no argument in response to the

defendant’s assertions. See Pl.’s Opp’n at 5; Pl.’s Statement at 2, 7.

Section 1981 claims and DCHRA claims are scrutinized under the same legal framework

used by courts in analyzing claims brought under Title VII of the Civil Rights Act of 1964, 41

U.S.C. §§ 2000e et seq. See Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d

1395, 1413 n.7 (D.C. Cir. 1988) (noting that “the standards and order of proof in [§] 1981 cases

have been held to be identical to those governing Title VII disparate treatment cases” (citing

Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984))); Atl. Richfield Co. v. D.C.

Comm’n on Human Rights, 515 A.2d 1095, 1099 (D.C. 1986) (noting that “[i]n an employment

discrimination case where disparate treatment is alleged, this court has adopted the . . .

allocation of the burdens of proof under Title VII of the Civil Rights Act of 1964”). Under the

Title VII framework, when a defendant presents a legitimate, non-discriminatory reason for its

actions, the district court need resolve only one question to adjudicate a motion for summary

judgment: “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. Office of the Sergeant at Arms, U.S. House of Representatives, 520

F.3d 490, 494 (D.C. Cir. 2008). The court must consider whether the jury could infer

discrimination from (1) the plaintiff’s prima facie case, (2) any evidence the plaintiff presents to

attack the employer’s proffered explanation, and (3) any further evidence of discrimination that

may be available to the plaintiff. Waterhouse v. District of Columbia, 298 F.3d 989, 992-93

(D.C. Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998)). The

plaintiff need not present evidence in each of these categories to avoid summary judgment. Aka,

13 156 F.3d at 1289. Rather, the court should assess the plaintiff’s challenge to the employer’s

explanation in light of the total circumstances of the case. Id. at 1291.

Here, the defendant has provided legitimate nondiscriminatory reasons for its actions.

The defendant proffers testimony that its company practice is to not allow any trainees to use

notes during the final exam, see Def.’s Mot., Vines’s Dep. at 62-63, and that only department

managers, and not assistant managers such as the plaintiff, were allowed to participate in

management meetings, id. at ¶ 33. Additionally, the defendant points out that only those

individuals training to become department managers received forty-four hours of training per

week. See Adams’s Dep. at 26.

The plaintiff, in turn, has not demonstrated any evidence of the defendant’s

discriminatory animus in making these employment decisions. See generally Pl.’s Opp’n.

Indeed, the plaintiff fails to address any of the plaintiff’s legitimate, non-discriminatory reasons,

or otherwise put forth an argument that the defendant’s proffered reasons were false or

pretextual. See generally Pl.’s Opp’n; see also Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir.

2007) (noting that “one way for a plaintiff to show that an adverse employment decision was

made for a discriminatory reason is to show that the nondiscriminatory explanation the defendant

proffered for its decision was false” (citations omitted)).

Because the plaintiff fails to address the defendant’s legitimate non-discriminatory

reasons for its actions, the court determines that the plaintiff has not provided evidence which

would permit a reasonable juror to conclude the defendant’s actions were pretextual. See Hastie

v. Henderson, 121 F. Supp. 2d 72, 81 (D.D.C. 2000) (determining that no genuine issue of

material fact existed because the plaintiff had provided no evidence “other than her own self-

serving and conclusory statements . . . that would permit [the court] to conclude that defendant’s

14 reason . . . [were] pretextual”); Saunders v. DiMario, 1998 WL 525798, at *4 (D.D.C. Aug. 14,

1998) (“Plaintiff has otherwise offered the type of self-serving allegations that are simply

insufficient to establish pretext.”). Accordingly, the defendant’s motion is granted as to the

plaintiff’s disparate treatment claim. See Baloch v. Kempthorne, 550 F.3d 1191, 1200 (D.C. Cir.

2008) (affirming grant of summary judgment to the defendant because the plaintiff failed to offer

any evidence to rebut the legitimate, nondiscriminatory reasons offered by the employer).

2. The Court Grants the Defendant’s Motion for Summary Judgment on the Plaintiff’s Hostile Work Environment Claim

The plaintiff further alleges that he encountered a racially hostile work environment at

both of the defendant’s stores where he worked. Am. Compl. ¶ 26. Specifically, he alleges that

his manager used the phrase “Nigger, please” when commenting on the plaintiff’s lack of effort

while working in the meat department. Pl.’s Opp’n, Ex. 2 at 43. The plaintiff also claims that he

overheard another manager use the same derogatory term in addressing his co-worker. Id., Ex. 1

at 270. As a general matter, the plaintiff submits that other employees had witnessed the use of

racially offensive language while working for the defendant on a variety of occasions. Pl.’s Aff.

at ¶ 3.

The defendant argues that even taking the plaintiff’s allegations of racially offensive

language as true, this evidence does not constitute conduct “so extreme to amount to a change in

the terms and conditions of [the plaintiff’s] employment” and therefore does not rise to the level

of a hostile work environment. Def.’s Mot. at 23. Indeed, the defendant maintains, the plaintiff

only “heard the N-word twice during his employment” and never once complained about these

15 instances to Associate Relations. 10 Id. According to the defendant, it “exercised reasonable care

to prevent and correct any harassing behavior that was brought to its attention.” Def.’s Mot. at

24.

In response, the plaintiff argues that the defendant created a hostile environment by

allowing the use of racially offensive language and discriminating against the plaintiff in the

BBT program. Pl.’s Opp’n at 6. He contends that the evidence he has proffered concerning

those events is sufficient for his claim to survive summary judgment. Id.

Title VII prohibits an employer from discriminating against any individual with respect to

compensation, terms, conditions, or privileges of employment because of race, color, religion,

sex, or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Toward that end, an

employer may not create or condone a hostile or abusive work environment that is

discriminatory. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986). Such an environment

exists “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule and insult,’

that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’” Singletary v. District of Columbia, 351 F.3d 519, 526

(D.C. Cir 2003) (quoting Meritor, 477 U.S. at 65, 67). On the other hand, “[c]onduct that is not

severe or pervasive enough to create an objectively hostile or abusive work environment – an

environment that a reasonable person would find hostile or abusive – is beyond Title VII’s

purview.” Harris, 510 U.S. at 21. Thus, to determine whether a hostile work environment

exists, the court looks to the totality of the circumstances, including the frequency of the

10 The defendant notes that company policy directs any associate with concerns about “any type of discrimination in the workplace . . . to bring these issues to the attention of their immediate supervisor, Manager, Associate Relations Specialists, or the Director of Associate Relations at the Corporate Office.” Def.’s Mot., Ex. A (Associate Guidebook) at 7.

16 discriminatory conduct, its severity, its offensiveness, and whether it interferes with an

employee’s work performance. Id. at 23; Faragher v. City of Boca Raton, 524 U.S. 775, 787-88

(1998). In considering the totality of the circumstances, however, the court is mindful that:

[e]veryone can be characterized by sex, race, ethnicity, or (real or perceived) disability, and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude form consideration personnel decisions that lack a linkage of correlation to the claim ground of discrimination. Otherwise the federal courts will become a court of personnel appeals.

Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d

365, 377 (2d Cir. 2002)).

An examination of the plaintiff’s evidence shows that the defendant’s conduct, although

inappropriate at times, does not rise to the level of a hostile work environment. As the court has

already discussed, the plaintiff has not introduced any evidence to support that the defendant

acted in a discriminatory fashion when conducting the BBT program. See supra at 17-18.

Moreover, “alleged acts of disparate treatment cannot be transformed, without more, into a

hostile work environment claim.” Kilby-Robb v. Spellings, 522 F. Supp. 2d 148, 164 (D.D.C.

2007) aff’d, 309 F. App’x. 422 (D.C. Cir. 2009); Lester v. Natsios, 290 F. Supp. 2d 11, 33

(D.D.C. 2003) (“Discrete acts constituting discrimination or retaliation claims . . . are different in

kind from a hostile work environment claim that must be based on severe and pervasive

discriminatory intimidation or insult.”).

The only other possible evidence of discrimination offered by the plaintiff is his

testimony that, in the time spent working for the defendant, his manager addressed him as

“nigger” once and that he overheard another manager refer to his co-worker using the same term

on a separate occasion. See Pl.’s Opp’n at 5; see also Def.’s Mot., Ex. B (Pl.’s Dep.) at 237, 269.

17 The plaintiff apparently did not report either incident to management. Def.’s Mot., Ex. B (Pl.’s

Dep.) at 237; see Pl.’s Opp’n, Ex. 12 at 269.

It is well established that the “mere utterance of an ethnic or racial epithet which

engenders offensive feelings in an employee would not affect the conditions of employment to

[a] sufficiently significant degree to violate Title VII.” Meritor, 477 U.S. at 67 (citations

omitted); see also Odeyale v. Aramark Mgmt. Servs. Ltd. P’ship, 518 F. Supp. 2d 179, 184

(D.D.C. 2007) (citing Meritor, 477 U.S. at 67)). Indeed, courts have held that no hostile work

environment exists in situations where the alleged instances of racially hostile behavior were far

greater than what the plaintiff experienced in this case. See Barrett v. Whirlpool Corp., 556 F.3d

502, 518 (6th Cir. 2009) (granting summary judgment on hostile work environment claim to

employer although the plaintiff “often overheard several employees use the word ‘nigger’ at

work”); Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir. 2002)

(concluding that no severe or pervasive hostile work environment existed although the plaintiff

had been exposed to racial poems and drawings of KKK, swastika, and a hooded figure on the

bathroom wall); Bryant v. Brownlee, 265 F. Supp. 2d 52, 64 (D.D.C. 2003) (determining that no

hostile work environment existed even though a coworker referred to the plaintiff as “nigger”

and had stated that white men were first and black women were “at the bottom”); George v.

Leavitt, 407 F.3d 405, 416-17 (D.D.C. 2005) (holding that statements by three employees over a

six-month period telling plaintiff to “go back where she came from,” separate acts of yelling and

hostility and allegations that plaintiff was singled out for undesirable work assignments were

insufficient to demonstrate a hostile work environment); Wright v. Eastman Kodak Co., 550 F.

Supp. 2d 371, 379 (W.D.N.Y. 2008), aff’d, 328 F. App’x. 738 (2d Cir. 2009) (determining that

alleged incidents – including a colleague’s attempt to place flashlight near or between an

18 African-American employee’s buttocks, a co-worker’s reference to an African-American

employee as “boy,” and a co-worker’s use of racial slur – did not create a hostile work

environment).

In light of this case law, the plaintiff’s allegations – that his manager referred to him as a

“nigger” in one instance and that he overheard another manager call his co-worker the same

racial epithet on another occasion – are not enough to rise to the level of severity and

pervasiveness required to maintain a hostile work environment claim. Nor does the plaintiff’s

claim that other employees told him that their supervisors would also call them “nigger,” alter

this determination. Kilby-Robb v. Spellings, 522 F. Supp. 2d 148, 166-67 (D.D.C. 2007), aff’d,

309 F. App’x. 422 (D.C. Cir. 2009) (citations omitted) (explaining that “the impact of second-

hand harassment is obviously not as great as the impact of harassment directed at the plaintiff”).

Accordingly, because no reasonable juror could determine that the defendant’s conduct was so

severe or pervasive as to alter the conditions of the plaintiff’s employment and create an abusive

working environment, the court grants the defendant’s motion for summary judgment on the

plaintiff’s hostile work environment claim.

D. The Plaintiff’s Family Medical Leave Act (“FMLA”) Claims

The plaintiff alleges that the defendant denied him time off to care for the serious medical

conditions of his wife and mother, violating the Family and Medical Leave Act (“FMLA”), 29

U.S.C. §§ 2601 et seq. Am. Compl. ¶ 43. By way of background, in October 2008, the

plaintiff’s wife had emergency gallbladder surgery, requiring her to remain in the hospital for

three days. Def.’s Mot., Ex. B (Pl.’s Dep.) at Ex. 1 at 209-13. After his wife’s surgery, the

plaintiff reports that he requested three weeks of leave, explaining to his manager that his wife’s

surgery had been more complicated than originally anticipated and that she would need help

19 around the house. Id. at 211. According to the plaintiff, the defendant, however, refused to grant

this leave. Id. at 209-13.

In April 2009, the plaintiff’s mother was diagnosed with pancreatic cancer. Pl.’s Dep.

Ex. 1 at 213. According to the plaintiff, he again requested time off to help his mother, and was

allowed some, but not all, of the days off he requested. Id. at 214-15. His mother was

hospitalized on June 16, 2009, and she passed away the following day. Id. at 99-100.

After his mother’s death, the plaintiff alleges that his supervisors told him to “take as

much time as [he] need[ed].” Pl.’s Opp’n, Ex. 2 at 173. According to the defendant, the plaintiff

was granted three days of bereavement leave, but did not return after the three days elapsed.

Vines’s Dep. at 72-77. After unsuccessfully attempting to contact the plaintiff for approximately

three weeks, the defendant removed the plaintiff’s name from the payroll. Id. at 72-73. In late

July 2009, the plaintiff contacted Associate Relations Manager, Rodney Vines, to inquire

whether he could return to his position. Id. at 75. The plaintiff was advised that he would not be

reinstated and would have to reapply for a position, which he elected not to do. Id. at 82-83.

According to the defendant’s leave of absence policy, an employee is permitted up to

twelve weeks of leave in order to care for a family member’s serious health condition. Def.’s

Mot., Ex. A at 17. The defendant’s policy, however, requires that the employee must “provide

certification issued by the attending health care provided of the need for leave.” Id. at 20. The

certification must include, among other things, “[t]he date the medical condition and treatment

began and the probable duration, [t]he time the associate is expected to miss work, . . . [and a]

statement from the associate’s health care provided that the associate is unable to perform their

position.” Id.

20 Two distinct types of claims are recognized under the FMLA: (1) “interference claims, in

which an employee asserts that his employer denied or otherwise interfered with his substantive

rights under the Act,” and (2) “retaliation claims, in which an employee asserts that his employer

discriminated against him because he engaged in activity protected by the Act.” Gaghan v.

Guest Servs., Inc., 2005 WL 3211591, at *3 (D.D.C. Oct. 26, 2005) (citing Strickland v. Water

Works & Sewer Bd., 239 F.3d 1199, 1206 (11th Cir. 2001)); see also 29 U.S.C. § 2615(a)(1)-(2);

Price v. Wash. Hosp. Ctr., 321 F. Supp. 2d 38, 46 (D.D.C. 2004); Roseboro v. Billington, 606 F.

Supp. 2d 104, 107-08 (D.D.C. 2009). The plaintiff pursues his FMLA claims under both

theories. Pl.’s Opp’n at 12. The court addresses each in turn.

1. The Court Grants the Defendant’s Motion for Summary Judgement on the Plaintiff’s FMLA Interference Claim

The plaintiff alleges that the defendant violated the FMLA by refusing him time off to

care for his wife and mother who both suffered from serious medical conditions. 11 Am. Compl.

¶ 43. The defendant argues that the plaintiff’s interference claim fails because he has not

demonstrated that either his wife or mother had a serious health condition as defined by the

FMLA. Def.’s Reply at 19. More specifically, the defendant contends “there are no facts to

show that [the plaintiff’s wife] had a serious medical condition during her recovery period

because her after-care instructions did not require personal care, but rather advised her to ‘remain

active.’” Id. With respect to the plaintiff’s mother, the defendant argues that her cancer “did not

meet the required definition of a serious medical condition because her radiation treatment at the

hospital did not involve inpatient care.” Id. The defendant further contends that the plaintiff

11 Additionally, the plaintiff contends that the defendant also denied him time off to attend to his own serious medical conditions. See Pl.’s Statement at 9; Pl.’s Opp’n at 13. Because the court has already denied the plaintiff’s motion to amend his complaint by adding these allegations, see Minute Entry (Nov. 18, 2010), it does not address them here.

21 failed to provide it with proper notice under the FMLA because he did not communicate a

“qualifying reason” at the time that he asked his manager for time off from work, and that he did

not follow the defendant’s policy requiring medical certification for FMLA leave approval. Id.

at 19-20.

The plaintiff responds that his wife’s medical condition was a “serious medical condition

[because it] requir[ed] three days of hospitalization.” Pl.’s Statement at 5. Additionally, the

plaintiff contends that his mother’s pancreatic cancer was by definition a serious medical

condition under the FMLA and that the defendant was “largely denied” the days off he

requested. Id. at 5-6. Finally, the plaintiff maintains that he did follow the defendant’s policies

for requesting leave, which, according to the plaintiff, only required him to raise his request for

time off to his immediate supervisor. Id. at 9.

In order to establish an interference claim under FMLA, a plaintiff must prove, inter alia,

that (1) the plaintiff was entitled to take leave because he or a family member had a “serious

health condition,” (2) the plaintiff provided the defendant with adequate notice of his or her

intention to take leave and (3) the defendant interfered with the plaintiff’s right to take leave.

See 29 U.S.C. §§ 2611, 2612, 2615. Upon returning from FMLA leave, a covered employee is

entitled to be reinstated to his same position of employment or to “an equivalent position with

equivalent employment benefits, pay, and other terms and conditions of employment.” See 29

U.S.C. § 2614(a)(1)(A)-(B). A “serious health condition” is defined as “an illness, injury,

impairment, or physical or mental condition that involves inpatient care . . . or continuing

treatment by a health care provider.” 29 C.F.R. § 825.113(b) (2009); see also 29 U.S.C. §

2611(11)(B). A health condition involving continuing treatment entails, inter alia, “[a] period of

incapacity of more than three consecutive, full calendar days, and any subsequent treatment or

22 period of incapacity relating to the same condition.” 29 C.F.R. § 825.115(a). It is the plaintiff’s

burden to establish that the leave of absence was caused by a “serious health condition.”

Lightfoot v. District of Columbia, 2006 WL 54430, at *4 (D.D.C. Jan. 10, 2006) (citing Bauer v.

Varity Dayton-Walther Corp., 118 F.3d 1109, 1112 (6th Cir. 1997)).

Here, the plaintiff provides no evidence that his wife required any inpatient care or

continuing treatment by a health care provider after her initial surgery. 12 See generally Pl.’s

Opp’n. Instead, the plaintiff simply states that his wife’s medical condition was serious and that

she needed his “help during her recovery.” Pl.’s Statement at 9. Such conclusory statements,

without more, are insufficient to defeat a motion for summary judgment. See Bond v. Abbott

Labs., 7 F. Supp. 2d 967, 974 (N.D. Ohio 1998) (determining that whether an illness qualifies as

a “serious health condition” for purposes of the FMLA is a legal question that a plaintiff may not

avoid simply by alleging it to be so). Accordingly, because the plaintiff has failed to put forth

sufficient evidence that his wife’s condition required any continuing treatment by a health

provider, a reasonable juror could not conclude that she suffered from a serious health condition

as defined by the FMLA and summary judgment is appropriate. See Ahern v. Dep’t of Treasury,

230 F.3d 1373 (Fed. Cir. 1999) (affirming that an employee’s gall bladder condition did not

constitute a serious health condition because there was no evidence of a period of incapacity of

more than three days or continuing treatment under the supervision of a health care provider as

required by the regulations).

The plaintiff did, however, advance sufficient evidence to demonstrate that his mother

suffered from a serious health condition under the FMLA. The regulations governing the FMLA

12 The plaintiff acknowledges that he was available to care for his wife during her surgery. See Pl.’s Opp’n, Ex. 1 at 210. The court therefore limits its analysis to the plaintiff’s claim that he was denied leave to care for his wife after her hospital discharge.

23 state that a serious health condition includes “[a] condition that would likely result in a period of

incapacity of more than three consecutive, full calendar days in the absence of medical

intervention or treatment, such as cancer.” 29 C.F.R. § 825.115(e)(2) (emphasis added). The

plaintiff provided deposition testimony that his mother was required to undergo radiation

treatment for her pancreatic cancer beginning in April 2009, which ostensibly lasted until her

passing in June 2009. See Pl.’s Statement at 9; Pl’s Opp’n, Ex. 1 (Pl.’s Dep.) at 210-13. In light

of this testimony, a reasonable juror could conclude that his mother’s cancer constituted a serious

medical condition.

Under the FMLA, however, the plaintiff must also show that the defendant had sufficient

notice as to the “qualifying reason for the needed leave.” 29 C.F.R. § 825.208(a)(2). Although

an employee need not expressly assert his rights under the FMLA or even mention the FMLA, an

employee must provide “sufficient information for an employer to reasonably determine whether

the FMLA may apply to the leave request.” 29 C.F.R. § 825.303; see also id. § 825.302. For

instance, an employee should inform the employer if “the condition renders the family member

unable to perform daily activities.” Id. § 825.302(c). Ultimately, the timeliness and adequacy of

notice standards depend on the facts of each case. See id. § 825.303(b) (stating that the content

of adequate notice “[d]epend[s] on the situation”).

Although the plaintiff’s deposition testimony indicates that he was upset when he told his

manager that he “needed some time off to help his mom,” Pl.’s Opp’n, Ex. 1 (Pl.’s Dep.) at 214,

it does not indicate that he told his employer the reasons for his requested time off, see id. at 210-

16. In fact, the plaintiff does not indicate whether he even told his manager that his mother was

suffering from cancer, that she was under the continuing care of a health care provider, or that

the extent of her illness rendered her unable to perform daily activities. See generally id. at 210-

24 16. Further, there is no evidence to suggest that the plaintiff attempted to follow the defendant’s

formal procedures for requesting FMLA leave. See generally Pl.’s Opp’n. Accordingly, based

on the evidence in the record, no reasonable juror could infer that the plaintiff provided

“sufficient information for [his] employer to reasonably determine whether the FMLA may apply

to [his] leave request,” 29 C.F.R. § 825.303, and the court grants summary judgment to the

defendant on this claim. 13

2. The Court Grants the Defendant’s Motion for Summary Judgment on the Plaintiff’s FMLA Retaliation Claim

The defendant argues that the plaintiff fails to establish his prima facie case of FMLA

retaliation because he has not shown that he engaged in any FMLA protected activity. Def.’s

Mot. at 43. Specifically, the defendant contends that the plaintiff could not have been discharged

in retaliation for engaging in protected activity because he never instituted any proceedings or

opposed any practice related to the FMLA against the defendant prior to his termination. Def.’s

Mot. at 43. Moreover, the defendant maintains that even assuming that the plaintiff was able to

demonstrate a prima facie case for retaliation, he still fails to rebut the legitimate reason offered

by the defendant for his termination. Id. at 43. Namely, the defendant asserts that it terminated

the plaintiff due to his lack of communication with the defendant in the weeks following his

mother’s funeral. Id. at 43.

13 To the extent that the plaintiff argues that the defendant interfered with his rights to use FMLA leave after the death of his mother, see Pl.’s Statement at 3, the court determines that this argument also lacks merit. The FMLA does not cover bereavement leave, and thus the defendant could not have violated the statute in denying the plaintiff time off after his mother’s funeral. Lange v. Showbiz Pizza Time, Inc., 12 F. Supp. 2d 1150 (D. Kan. 1998) (denying the plaintiff’s FMLA claim based on his request for bereavement leave because such leave was not protected under the FMLA); Beal v. Rubbermaid Commercial Prods. Inc., 972 F. Supp. 1216, 1229 (S.D. Iowa 1997) (concluding that an employer was not required under the FMLA to give its employee leave after her son’s death because FMLA leave was not meant to be used for bereavement).

25 In response, the plaintiff argues that he has provided deposition testimony supporting that

his manager had told him, following the death of his mother, to take as much time off as he

needed, and yet, when he returned to work, the defendant refused to reinstate the plaintiff to his

former position. Pl.’s Statement at 10-11. Additionally, the plaintiff asserts that he has

presented evidence from which a jury could reasonably conclude that the defendant’s articulated

legitimate nondiscriminatory reason for his termination was pretext for retaliation. Pl.’s Opp’n

at 14. This evidence includes the plaintiff’s own assertion that “other employees were given up

to six months off after a death[,]” Pl.’s Aff. at ¶ 4, and that Vines’s had told the plaintiff after his

termination that he could be brought back under the FMLA,” Pl.’s Statement at ¶ 9.

The FMLA makes it unlawful “for any employer to discharge or in any other manner

discriminate against any individual for opposing any practice made unlawful by [the FMLA].” 14

29 U.S.C. § 2615(a)(2); see also 29 C.F.R. § 825.220(e) (“Individuals . . . are protected from

retaliation for opposing (e.g., filing a complaint about) any practice which is unlawful under the

[FMLA].”). Claims of retaliation under the FMLA are analyzed under the familiar McDonnell

Douglas burden-shifting framework. Roseboro v. Billington, 606 F. Supp. 2d 104, 109 (D.D.C.

2009) (determining that when “analyz[ing] [FMLA] retaliation claims, courts apply the burden-

shifting framework adopted in McDonnell Douglas”). Accordingly, in order to establish a prima

14 The FMLA’s retaliation provision, 29 U.S.C. § 2615(a)(2), is analogous to the sort of “retaliation” claim that is familiar under Title VII, in which an employee alleges that the employer discriminated against the employee for opposing what the employee reasonably believed to be violations of Title VII by the employer. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids”); see also 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995) (“[The FMLA] makes it unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the Act. This opposition clause is derived from Title VII of the Civil Rights Act of 1964 and is intended, according to the legislative history, to be construed in the same manner.”).

26 facie case of retaliation under the FMLA, a plaintiff must show, inter alia, that he engaged in a

statutorily protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69

(2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).

If the employer successfully presents a legitimate, non-retaliatory reason for its actions,

“the presumption raised by the prima facie is rebutted and drops from the case.” Hicks, 509 U.S.

at 507 (internal citation omitted); Brady, 520 F.3d at 494 (noting that “the prima facie case is a

largely unnecessary sideshow”). Upon such a showing by the defendant, the district court need

resolve only one question: “Has the employee produced sufficient evidence for a reasonable jury

to find that the employer’s asserted non-[retaliatory] reason was not the actual reason and that

the employer intentionally [retaliated] against the employee . . . ?” Brady, 520 F.3d at 494. In

other words, did the plaintiff “show both that the reason was false, and that . . . retaliation was

the real reason.” Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007) (internal quotations and

citation omitted).

Here, the plaintiff appears to argue that because he took leave after the death of his

mother, and was subsequently terminated, he has provided sufficient evidence that he “engaged

in statutorily protected activity.” See Pl.’s Opp’n at 14. Importantly, however, the plaintiff

never alleges that he was terminated for “opposing” a practice made unlawful under the FMLA.

See Pl.’s Opp’n at 12-16. Nor is there any indication in the record that the plaintiff objected to

the defendant’s FMLA policies or practices during his entire five year tenure with the defendant.

See generally Pl.’s Opp’n; Pl.’s Dep. As noted, the FMLA’s retaliation provision only makes it

unlawful for an employer to discharge or discriminate against an individual for “opposing any

practice made unlawful” under the statute. 29 U.S.C. § 2615(a)(2). Accordingly, given that the

plaintiff has not alleged that he “opposed” some practice made unlawful under the FMLA, he

27 could not have engaged in any statutorily protected activity for purposes of his retaliation claim.

See Price v. Wash. Hosp. Ctr., 321 F. Supp. 2d. 38, 46 (D.D.C. 2004) (noting that the FMLA’s

retaliation provision applies to a discharge “for opposing any practice made unlawful by this

subchapter” and that alleging unlawful termination, without more, is insufficient to raise an

FMLA retaliation claim); see also Phillips v. Mathews, 547 F.3d 905, 914 (8th Cir. 2008)

(asserting that, when correctly interpreted, the FMLA’s retaliation provision requires an “alleged

opposition to a practice made unlawful by the FMLA”).

Finally, even assuming that the plaintiff has stated a prima facie case, he has failed to

provide sufficient evidence from which a reasonable juror could determine that the defendant’s

legitimate non-discriminatory reason for terminating the plaintiff was pretext. See Roseboro,

606 F. Supp. 2d at 109 (noting that if the employer successfully produces evidence of a

legitimate, non-discriminatory reason for its action, the burden “shifts back to the employee to

produce evidence that the legitimate reason was pretextual, i.e. that it was false and the real

reason for the adverse action was retaliation.”). The defendant maintains it discharged the

plaintiff due to the plaintiff’s failure to communicate with the defendant following the death of

his mother and explain if and when he would return to work. Def.’s Mot. at 43; see also Vines’s

Dep. at 72-73, 82-83 (explaining that the plaintiff had been removed from the payroll after three

weeks of being absent from work without communication).

In response, the plaintiff only states that “an employee named Tyra” was given up to six

months of leave after a family member’s death. Pl.’s Aff. at ¶ 4. Notably, the plaintiff does not

explain the circumstances surrounding Tyra’s leave, such as the amount and extent of

information that she provided to the defendant regarding her reason for missing work or the

extent of communication with the defendant leading up to and during her absence. Such vague

28 evidence is insufficient for a reasonable juror to infer that the plaintiff’s FMLA activity was the

“real reason for the termination.” See Weber, 494 F.3d at 186. Accordingly, the court grants the

defendant’s motion for summary judgment with respect to the defendant’s FMLA claims.

IV. CONCLUSION

For the foregoing reasons, the court grants the defendant’s motion for summary

judgment. 15 An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 13th day of July, 2011.

RICARDO M. URBINA United States District Judge

15 The court does not grant the defendant’s motion for summary judgment lightly, as the alleged actions would be grossly offensive to the court if proven true. At this stage, however, the court’s role is limited to determine whether there is more than the “mere existence of a scintilla of evidence” in support of the plaintiff’s claims. Celotex, 277 U.S. at 322. Because the defendant has shown that the plaintiff “fail[ed] to make a showing sufficient to establish the existence of an element essential to [the plaintiff’s] case,” summary judgment is appropriate. Anderson, 477 U.S. 252.