UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) MILDRED MUSGROVE, ) ) Plaintiff, ) ) Civil Action No. 06-1861(EGS) v. ) ) THE GOVERNMENT OF THE ) DISTRICT OF COLUMBIA, ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff, Mildred Musgrove, was employed as the principal
of Anacostia High School from 1997 until 2003. Plaintiff claims
that Defendant District of Columbia (the “District”)
discriminated against her by (i) unlawfully compensating male
high school principals at a higher rate of pay than her in
violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)
(“EPA”); (ii) subjecting her to a hostile work environment in
contravention of Title VII of the Civil Rights Act of 1964, 42
U.S.C § 2000e, et seq. (“Title VII”), and the District of
Columbia Human Rights Act, D.C. Code § 2-1401.01, et seq.
(“DCHRA”); and (iii) impermissibly terminating her employment
because of her gender and age in violation of both Title VII and
the DCHRA. Pending before the Court is defendant’s motion for
summary judgment. Upon consideration of the motion, the response
and reply thereto, the applicable law, the entire record, and for the reasons set forth below the Court hereby GRANTS defendant’s
motion for summary judgment.
I. BACKGROUND
Plaintiff, a female (age 60), was employed as the principal
of Anacostia High School from December 17, 1997 through August
2003. Pl.’s Second Am. Compl. (“Compl.”) ¶¶ 4, 28; Def.’s
Statement of Material Facts Not in Dispute (“Def.’s SMF”) ¶ 1.1
At some point in 1998, plaintiff alleges that she became aware
that “other male principals . . . were being paid more than she
was in the way of salary, bonuses and other financial
incentives.” Compl. ¶ 6. Plaintiff asserts that although she
repeatedly complained about the perceived inequity, her
entreaties went unanswered. Compl. ¶¶ 7—9. Plaintiff also
1 Plaintiff failed to file a separate statement of genuine issues of material fact as required by the local rules. See Local Civil Rule 7(h)(1) (“An opposition to [a motion for summary judgment] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.”). Nor did she file a response admitting or disputing the facts identified by defendant in its statement of material facts not in dispute. Instead, plaintiff submitted her own “Statement of Undisputed Material Facts.” While “the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion[,]” Local Civil Rule 7(h)(1), the Court declines to do so in this case as it is clear from a review of plaintiff’s “Statement of Undisputed Material Facts” that she does, indeed, contest many of the facts identified by defendant. The Court therefore relies upon the statements of the party only to the extent that they are not in dispute.
2 claims that during her time at Anacostia, she was treated with
hostility by various supervisors, including the superintendent.
See Compl. ¶¶ 14, 15, 16, 18, 19, 21, 22.
On February 24, 2003, there was a small fire at Anacostia
High School. Pl.’s Statement of Undisputed Material Facts
(“Pl.’s SMF”) ¶ 15. Concerned about the potential for damage or
theft, plaintiff ordered the school’s maintenance staff to lock
the doors located near the school’s computer labs. Pl.’s SMF
¶ 15. As a result of this action, plaintiff received a citation
from the fire marshal for violating the fire code. Compl. ¶ 24.
The next day plaintiff was placed on administrative leave for
breaching a directive from the superintendent “regarding fire
code violations.” Compl. ¶ 24. Approximately five months later,
plaintiff received a letter from the District informing her that
she had been terminated. Pl.’s SMF ¶ 18. The letter specified
two bases for her termination: (i) “[d]iscourteous treatment of
the public, supervisor, or other employees,” D.C. Mun. Regs. 5-E,
§ 1401.2(n) (2002), and (ii) “[v]iolation of the rules,
regulations, or lawful orders of the Board of Education or any
directive of the Superintendent of Schools, issued pursuant to
the rules of the Board of Education,” D.C. Mun. Regs. 5-E,
§ 1401.2(t).2 See Pl.’s SMF ¶¶ 18-19.
2 Plaintiff testified that the first reason stemmed from a hostile work environment complaint that was filed against her by a staff member at Anacostia High School, and the second reason
3 On May 14, 2004, plaintiff filed a charge of
discrimination with the District of Columbia Office of Human
Rights (“DCOHR”) alleging “unlawful discriminatory behavior on
the bases of sex, age, and retaliation.” Def.’s SMF ¶ 4; see
generally Def.’s Ex. 2, EEOC Form 5. This charge was cross-filed
with the EEOC. Pl.’s SMF ¶ 22. Following mediation and
investigation, the EEOC issued plaintiff a right to sue letter on
August 7, 2006. Pl.’s SMF ¶ 22. On November 1, 2006, plaintiff
filed her complaint in this Court. Upon conclusion of discovery,
defendant filed a motion for summary judgment. This motion is
now ripe for determination by the Court.
II. STANDARD OF REVIEW
Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). “A fact is material if it ‘might affect the
outcome of the suit under the governing law,’ and a dispute about
a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
stemmed from the fire code violation. See Pl.’s Dep. at 284:16- 285:11.
4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
party seeking summary judgment bears the initial burden of
demonstrating an absence of genuine issues of material fact.
Celotex, 477 U.S. at 322. In determining whether a genuine issue
of material facts exists, the Court must view all facts in the
light most favorable to the non-moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986);
Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).
The non-moving party’s opposition, however, must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth
specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 324. If the
evidence favoring the non-moving party is “merely colorable, or
is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 250. Moreover, “although summary judgment
‘must be approached with special caution in discrimination cases,
a plaintiff is not relieved of her obligation to support her
allegations by affidavits or other competent evidence showing
that there is a genuine issue for trial.’” Bolden v. Winter, 602
F. Supp. 2d 130, 136 (D.D.C. 2009) (quoting Morgan v. Fed. Home
Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)).
Summary judgment will be granted, therefore, if the plaintiff
fails to submit evidence that creates a genuine factual dispute
5 or entitlement to judgment as a matter of law. Wada v.
Tomlinson, 517 F. Supp. 2d 148, 181 (D.D.C. 2007); see also
Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (special
caution “does not eliminate the use of summary judgment in
discrimination cases” (citing cases)).
III. ANALYSIS
Defendant moves for summary judgment as to plaintiff’s EPA,
Title VII, and DCHRA claims, asserting both procedural and
evidentiary deficiencies. Plaintiff, by contrast, contends that
her claims are properly before the Court, and further argues that
genuine issues of material fact prevent an award of summary
judgment in this case. For the reasons discussed below, the
Court finds it appropriate to GRANT defendant’s motion for
summary judgment as to each of plaintiff’s claims.
A. Equal Pay Act Claim
i. Legal Framework
The Equal Pay Act makes it unlawful for an employer to
“discriminate . . . between employees on the basis of sex by
paying wages to employees . . . at a rate less than the rate at
which he [or she] pays wages to employees of the opposite sex
. . . for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed
under similar working conditions[.]” 29 U.S.C § 206(d)(1). The
Act “stands for the straight-forward proposition that employees
6 doing equal work should be paid equal wages, regardless of sex.”
Goodrich v. Int’l Bhd. of Elec. Workers, AFL-CIO, 815 F.2d 1519,
1523 (D.C. Cir. 1987) (internal quotation marks omitted). “The
initial burden to prove wage disparity and job equality is on the
plaintiff.” Id. (citing Corning Glass Works v. Brennan, 417 U.S.
188, 195 (1974)).
In order to establish a prima facie violation of the EPA,
“‘[a plaintiff must] show by a preponderance of the evidence that
[he or] she was discriminated against on the basis of sex in [his
or] her pay. Particularly, [he or] she [must] show that: (1) [he
or] she was . . . doing substantially equal work on a job, the
performance of which required substantially equal skill, effort,
and responsibility as jobs held by members of the opposite sex;
(2) the job was performed under similar working conditions; and
(3) [he or] she was paid at a lower wage than members of the
opposite sex doing equal work.’” Smith v. Janey, 664 F. Supp. 2d
1, 12 (D.D.C. 2010) (quoting Nyman v. FDIC, 967 F. Supp. 1562,
1573 (D.D.C. 1997)). “Where a plaintiff establishes a prima
facie case of disparate pay under the Equal Pay Act, a defendant
can avoid liability by pleading an affirmative defense justifying
a pay disparity if it is ‘pursuant to (i) a seniority system;
(ii) a merit system; (iii) a system which measures earnings by
quantity or quality of production; or (iv) a differential based
7 on any other factor other than sex.’” Gaujacq v. EDF, Inc., 601
F.3d 565, 575 (D.C. Cir. 2010) (quoting 29 U.S.C. § 206(d)(1)).
ii. Analysis
Defendant contends that summary judgment must be granted on
plaintiff’s EPA claim, arguing that plaintiff cannot establish a
prima facie violation of the Act. After a careful review of the
record in this case, this Court agrees.3
Citing no record evidence, plaintiff avers that “[b]eginning
in 1998, [she] became aware that other male principals at other
similarly situated high schools, who were hired or promoted at
the same time as she, were being paid more than she was in the
way of salary, bonuses and other financial incentives.” See
Pl.’s SMF ¶ 4 (citing her complaint).4 Although plaintiff
testified about five male high school principals whom she
believed were being paid higher salaries and receiving additional
bonuses and incentives,5 see Pl.’s Dep. Tr. at 121:1-122:18, she
3 Defendant also argues that plaintiff’s EPA claim is time-barred. However, because the Court finds that plaintiff has failed to establish a prima facie violation of the EPA, the Court will assume - without deciding - that plaintiff satisfied the three-year statute of limitations set forth in 29 U.S.C. § 255(a). See 29 U.S.C. § 255(a) (“[A] cause of action arising out of a willful violation [of the EPA] may be commenced within three years after the cause of action accrued[.]”). 4 Plaintiff, in her “Statement of Undisputed Material Facts,” routinely cites either her complaint or her deposition transcript generally. 5 Bonuses are considered wages for the purposes of the EPA. See EEOC Regulations Relating to Labor, 29 C.F.R. § 1620.10
8 has failed to adduce any evidence in support of her claim that
these individuals were, in fact, “similarly situated” to her.6
Indeed, rather than produce evidence on the issue of job
equality, plaintiff simply asserts that “[i]t is clear that
principals in senior high schools who served during the same
period of time would have more than comparable job duties.”
(2011) (“Under the EPA, the term ‘wages’ generally includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation . . . whether called wages, salary, profit sharing, expense account, monthly minimum, bonus . . . or some other name.”). 6 It is also unclear to the Court whether plaintiff was, in fact, being paid less than the male senior high school principals she identified in her deposition. For instance, on the issue of salary, plaintiff testified that she received the highest level of pay possible for her position at the time. See Pl.’s Dep. Tr. at 162:3–5; see also Pl.’s Dep. Tr. at 118:20- 119:3 (agreeing that she was given “the appropriate salary based on seniority, size and degrees” when she went to Anacostia High School). And while plaintiff identified one male principal whom she believed had received a bonus that she had not received, the Court was provided with no evidence in support of this claim other than plaintiff’s deposition testimony and a chart of unknown origin. See Pl.’s Ex. 7. Even assuming, however, that each of the male principals identified by plaintiff received higher salaries and/or additional bonuses compared to plaintiff, without evidence regarding the skills and effort required for the plaintiff’s and her comparators’ jobs, or the attendant responsibilities associated with each of their positions, plaintiff cannot establish a prima facie violation of the EPA. See, e.g., Nuzzi v. Bourbonnais Elem. Sch. Dist., 360 Fed. Appx. 664, 666-67 (7th Cir. 2010) (affirming the lower court’s determination that the plaintiff had failed to establish a prima facie violation of the EPA where the plaintiff’s comparators - two higher-paid male principals - supervised a larger staff than the plaintiff principal).
9 Pl.’s Opp’n at 13. As discussed above, however, such self-
serving assertions are insufficient to survive a motion for
summary judgment.
Moreover, the Court finds the lack of record evidence on the
issue of job equality particularly problematic in this case due
to plaintiff’s concession that salaries for senior high school
principals in the District are based upon factors such as student
body size, length of service with DCPS, and education, see Pl.’s
Dep. Tr at 118:20-119:3, 124:17-125:2, and that bonuses are based
upon factors such as “the condition of the school.” Pl.’s Dep.
Tr. at 126:14-19 (explaining that “the rougher the school, the
more likely there was a bonus”). Without evidence on any of
these issues, the Court finds that plaintiff’s “non-specific,
conclusory assertion[s] . . . fall[] short of establishing by a
preponderance of the evidence that, compared to [her] colleagues,
the plaintiff was doing ‘substantially equal work on a job, the
performance of which required substantially equal skill, effort,
and responsibility.’” Smith, 664 F. Supp. 2d at 12 (quoting
Nyman, 967 F. Supp. at 1575). “Such a lack of evidence . . .
foredoom[s an] Equal Pay Act claim.” Id. (internal quotation
marks omitted). Accordingly, because the record before the Court
is insufficient to allow a rational trier of fact to find for
plaintiff on her EPA claim, the Court GRANTS defendant’s motion
for summary judgment on this claim.
10 B. Title VII Claims
Under Title VII of the Civil Rights Act of 1964, it is an
“unlawful employment practice” for employers “to discriminate
against any individual with respect to his [or her] compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Pursuant to this statutory provision,
plaintiff alleges that defendant subjected her to a hostile work
environment and impermissibly discriminated against her on the
basis of her sex and her age.
i. Age Discrimination
As a threshold matter, the Court agrees with defendant that
plaintiff’s claim for age discrimination under Title VII cannot
survive. Unlike the DCHRA, see infra Section III.C, Title VII
does not prohibit discrimination on the basis of age. See 42
U.S.C. § 2000(e).7 The Court, therefore, GRANTS defendant’s
motion for summary judgment as to plaintiff’s age discrimination
claim under Title VII. The Court will now address plaintiff’s
two remaining Title VII claims: hostile work environment and sex
discrimination. 7 The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”), is the federal statute that prohibits discrimination on the basis of age. Plaintiff, however, never sought leave of the Court to amend her complaint to assert a claim under the ADEA nor did she acknowledge or respond to defendant’s argument that “plaintiff cannot maintain a cause of action for age discrimination under Title VII,” Def.’s Mot. at 16. See generally Pl.’s Opp’n.
11 ii. Hostile Work Environment
a. Legal Framework
To sustain a hostile work environment claim, “a plaintiff
must show that his [or her] employer subjected him [or her] to
‘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.’”
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
To determine whether a hostile work environment exists, the court
looks to the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work
performance. Id. (citing Faragher v. City of Boca Raton, 524
U.S. 775, 787-88 (1998)).
b. Analysis
Defendant argues that plaintiff’s hostile work environment
claim is procedurally deficient and fails as a matter of law.
See Def.’s Mot. at 9–11. Plaintiff, by contrast, contends that
her claim was timely filed and further asserts that she has
established a prima facie case of hostile work environment. See
Pl.’s Opp’n 10–12, 14–15. The Court will begin its analysis by
addressing defendant’s procedural arguments, and, in particular,
its contention that this claim is time-barred.
12 “Before bringing a Title VII suit, a plaintiff must first
file a timely EEOC charge.” Lewis v. City of Chicago, 130 S. Ct.
2191, 2196–97 (2010); see also Payne v. Salazar, 619 F.3d 56, 65
(D.C. Cir. 2010). Title VII requires that a charge be filed
within 180 or 300 days — depending on the state — “after the
alleged unlawful employment action occurred.” 42 U.S.C. § 2000e-
5(e)(1). In this case, plaintiff had 300 days from the alleged
violation to file her charge. See generally 29 C.F.R.
§ 1601.13(a)(4), (b)(1).
As discussed above, plaintiff filed a charge with the DCOHR
and the EEOC on May 14, 2004. In her charge, she alleged that
she was subjected to a hostile work environment from the spring
of 2002 until October 2002. See Def.’s Ex. 2, EEOC Form 5
(“Respondent subjected me to harassment when from Spring 2002
through September 2002, I received many intimidating phone calls
about the upcoming September elections. In August 2002,
Respondent’s Chief of Staff (male) stated that he felt that I was
frustrated, divisive, bitter and angry. In October 2002,
Respondent’s Director of Communications (female) chastised me for
failing to return a telephone call to a Washington Post Reporter.
This harassment created a hostile work environment for me.”).
Defendant argues that plaintiff’s charge is untimely with respect
to this behavior, explaining that plaintiff’s May 14, 2004 charge
was filed well past the 300-day window provided by § 2000e-
13 5(e)(1). See Def.’s Mot. at 9. This Court agrees.9
Accordingly, the Court finds that plaintiff’s hostile work
environment claim under Title VII is time-barred with respect to
the purported incidents that occurred in 2002.
Plaintiff also argues that another incident — which
occurred after she had filed her charge with the DCOHR and EEOC —
comprises part of her hostile work environment claim. See Pl.’s
Compl. ¶ 38 (discussing the District’s purported breach of its
settlement agreement with her and asserting that “the hostile
work environment had still continued”). Plaintiff did not,
however, amend her charge to reflect this incident. Because
“Title VII ‘[c]omplainants must timely exhaust the[ir]
administrative remedies before bringing their claims to court,’”
Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (quoting
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)), the
9 Rather than directly addressing defendant’s argument, plaintiff draws the Court’s attention to its Memorandum Opinion dated March 16, 2009 (the “March 2009 Memorandum Opinion”). See Pl.’s Opp’n at 11-12. In its March 2009 Memorandum Opinion the Court found, among other things, that plaintiff timely filed her administrative complaint with respect to her allegation of discriminatory discharge. See March 2009 Mem. Op. at 7 (“Plaintiff filed her claims with OHR on May 19, 2004, alleging there that the initial discriminatory discharge occurred on July 16, 2003. She, therefore, met the one-year deadline for her initial filing[.]”). The Court did not, however, address whether plaintiff’s hostile work environment claim under Title VII was timely filed. Plaintiff’s reliance on the Court’s March 2009 Memorandum Opinion for this issue, therefore, is misplaced. As discussed, infra, however, even if plaintiff’s hostile work environment claim was not procedurally barred, it would nevertheless fail because plaintiff’s evidence is insufficient to support a claim for hostile work environment.
14 Court finds that plaintiff’s second hostile work environment
claim is not properly before the Court. Accordingly, as a result
of these procedural deficiencies, the Court concludes that
defendant is entitled to summary judgment on plaintiff’s hostile
work environment claim under Title VII.
Even assuming, however, that plaintiff’s hostile work
environment claim was timely filed and administratively
exhausted, the Court finds that summary judgment is warranted
because “the totality of circumstances presented in this record
does not rise to the level necessary to support a hostile work
environment claim.” Baloch, 550 F.3d at 1201. Specifically,
having closely reviewed the record citations relied upon by
plaintiff in support of her hostile work environment claim, see
Pl.’s Opp’n at 14-15, the Court finds that the incidents upon
which plaintiff relies - (i) being “loud[ly]” reprimanded for
failing to return the call of a Washington Post reporter, Pl.’s
Dep. Tr. at 204, (ii) having the Superintendent make occasional
unannounced visits at her school, and (iii) having the
Superintendent refuse to meet with her “[o]n more than one
occasion,” Pl.’s Opp’n at 15, - are simply insufficient in their
frequency, severity, and offensiveness to support a claim for
hostile work environment. In addition, plaintiff has also failed
to provide the Court with any evidence “indicating any ‘linkage
of correlation’ between the allegedly harassing behavior and the
15 claimed ground of discrimination.” Holmes-Martin v. Sebelius,
693 F. Supp. 2d 141, 166 (D.D.C. 2010) (citing cases); see also,
e.g., Baloch, 550 F.3d at 1201 (affirming the district court’s
award of summary judgment on a hostile work environment claim
where “none of the comments or actions directed at [the
plaintiff] expressly focused on his race, religion, age, or
disability” and “the disciplinary actions and workplace conflicts
were not so ‘severe’ or ‘pervasive’ as to have changed the
conditions of [the plaintiff’s] employment”). Accordingly, as a
result of these procedural and evidentiary deficiencies, the
Court GRANTS defendant’s motion for summary judgment on this
claim as well.
iii. Sex Discrimination
Discrimination claims under Title VII have traditionally
been analyzed under the McDonnell Douglas burden shifting
framework. The D.C. Circuit, however, has instructed that when
considering a motion for summary judgment in an employment
discrimination case, a district court need not consider whether a
plaintiff has actually satisfied the elements of a prima facie
case if the defendant has offered a legitimate,
non-discriminatory reason for its actions. Brady v. Office of
the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
Instead, “the district court must resolve one central question:
16 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?” Id. In other
words, a court must determine whether “all the evidence, taken
together, [is] insufficient to support a reasonable inference of
discrimination.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir.
2009) (citing Brady, 520 F.3d at 494-95); see also Holcomb v.
Powell, 433 F.3d 889, 896-97 (D.C. Cir. 2006) (“‘[T]he plaintiff
must show that a reasonable jury could conclude from all of the
evidence that the adverse employment decision was made for a
discriminatory reason.’” (quoting Lathram v. Snow, 336 F.3d 1085,
1088 (D.C. Cir. 2003))). “[A]ll of the evidence,” in turn, means
“any combination of (1) evidence establishing the plaintiff's
prima facie case; (2) evidence the plaintiff presents to attack
the employer’s proffered explanation for its actions; and (3) any
further evidence of discrimination that may be available to the
plaintiff, such as independent evidence of discriminatory
statements or attitudes on the part of the employer.” Holcomb,
433 F.3d at 897; see also Washington v. Chao, 577 F. Supp. 2d 27,
39 (D.D.C. 2008) (“[I]n all instances where a defendant has
asserted a legitimate, non-discriminatory reason for its conduct,
the Court shall evaluate all of the evidence in the record,
17 including that which would be used to establish a prima facie
case (but not for the purpose of evaluating whether a prima facie
case has been established), to address the ultimate question of
discrimination vel non.”).
A plaintiff bears the burden of persuasion to show that a
defendant’s proffered non-discriminatory reason for the
challenged action is a pretext. See Morgan v. Fed. Home Loan
Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). “A plaintiff
can carry this burden by showing that a non-discriminatory reason
offered by a defendant is false, Montgomery v. Chao, 546 F.3d
703, 707 (D.C. Cir. 2008), or otherwise ‘presenting enough
evidence to allow a reasonable trier of fact to conclude that the
employer’s proffered explanation is unworthy of credence.’”
Wicks v. Am. Transmission Co. LLC, 701 F. Supp. 2d 38, 45 (D.D.C.
2010) (quoting Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir.
2008)). A plaintiff may also “attempt[] to produce evidence
suggesting that the employer treated other employees of a
different race, color, sex, or national origin more favorably in
the same factual circumstances” than the employer treated the
plaintiff. Brady, 520 F.3d at 495.
In this case, defendant has proffered a legitimate, non-
discriminatory reason for plaintiff’s termination. Specifically,
defendant asserts that plaintiff was terminated for
18 (i) disregarding the superintendent’s directive regarding locked
doors at school in violation of the D.C. Fire Code; and (ii) the
discourteous treatment of public employees. See Def.’s SMF ¶ 10;
Def.’s Mot. at 15; see also Pl.’s SMF ¶¶ 18-19; Pl.’s Dep. Tr. at
284:16-285:11. Because defendant has put forth legitimate, non-
discriminatory reasons for plaintiff’s termination, the issue
before the Court is whether plaintiff has produced sufficient
evidence for a reasonable jury to find that defendant’s asserted
non-discriminatory reasons were not the actual reasons for the
adverse employment action, and that the employer’s actions were
discriminatory. For the reasons discussed below, the Court finds
that plaintiff has failed to meet this burden.
Plaintiff contends that defendant’s legitimate, non-
discriminatory reasons were pretext for sex discrimination
“because [plaintiff] testified in her deposition that other males
had also locked doors but had not suffered the same adverse
employment action.” Pl.’s Opp’n at 16. While plaintiff’s
testimony - if true - is compelling evidence in support of a
claim of pretext, plaintiff has failed to provide the Court with
any evidence in support of this allegation other than her own
deposition testimony. Such self-serving testimony alone,
however, is insufficient to survive a motion for summary
judgment. See Fields v. Office of Johnson, 520 F. Supp. 2d 101,
105 (D.D.C. 2007) (“Self-serving testimony does not create
19 genuine issues of material fact.”); see also generally Taylor v.
FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997) (on a motion for summary
judgment, courts “examine the facts in the record and reasonable
inferences in the light most favorable to the nonmoving party,
but do not accept bare conclusory allegations as fact” (internal
citation omitted)). Moreover, even if plaintiff had proffered
competent evidence in support of these purported comparators,
plaintiff has not alleged these individuals also violated D.C.
Municipal Regulation §1401.2(n) - “[d]iscourteous treatment of
the public supervisor or other employees” - or an analogous
provision. Unless these proffered comparators also committed a
second comparable offense, they are not “similarly situated” to
plaintiff for purposes of Title VII. See Adair v. Solis, 742 F.
Supp. 2d 40, 53 n.12 (D.D.C. 2010) (“To show that another
individual is similarly situated, Plaintiff must demonstrate that
all of the relevant aspects of their employment situation are
nearly identical. Therefore, when, as here, an employer states
that it took an adverse employment action due to the plaintiff’s
misconduct, the plaintiff’s comparator must have been charged
with a comparable offense and then treated less harshly than the
plaintiff.” (internal quotation marks and citation omitted)). In
sum, having received no competent evidence in support of
plaintiff’s purported comparators, nor any evidence indicating
that defendant’s proffered explanation is unworthy of credence,
20 the Court finds that plaintiff has failed to carry the burden of
persuasion on this issue. The Court therefore finds that
defendant is entitled to summary judgment on plaintiff’s sex
discrimination claim under Title VII. Accordingly, the only
claims remaining before the Court are plaintiff’s claims of
hostile work environment and discrimination under the DCHRA.
C. District of Columbia Human Rights Act Claims
The DCHRA, like Title VII, prohibits certain discriminatory
practices “[b]y an employer,” making it unlawful for an employer
to “fail or refuse to hire, or to discharge, any individual; or
otherwise discriminate against any individual, with respect to
his compensation, terms, conditions, or privileges of employment”
based upon several protected categories including, inter alia, an
individual’s “race, color, religion, national origin, sex [or]
age.” D.C. Code § 2-1402.11(a)(1).10 The purpose of the DCHRA
10 The DCHRA is broader than Title VII as it prohibits discrimination based on the “race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual,” while Title VII only prohibits discrimination with respect to an individual’s “race, color, religion, sex, or national origin.” Compare D.C. Code § 2-1402.11(a)(1) with 42 U.S.C. § 2000e-2(a)(1). Some of the additional categories protected under the DCHRA, however, are protected under other federal statutes. See, e.g., ADEA, 29 U.S.C. § 621 et seq. (age discrimination); Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110–233, 122 Stat. 881 (codified as amended in various sections of chapters 26, 29, and 42 of the United States Code).
21 is “to secure an end in the District of Columbia to
discrimination for any reason other than that of individual
merit.” Id. § 2-1401.01. When construing provisions of the D.C.
Code — including the DCHRA — this Circuit “defer[s] to the
District of Columbia Court of Appeals on questions of statutory
interpretation.” United States v. Edmond, 924 F.2d 261, 264
(D.C. Cir. 1991). The District of Columbia Court of Appeals, in
turn, “has made clear that federal case law addressing questions
arising in Title VII cases is applicable to the resolution of
analogous issues raised regarding DCHRA claims.” Ali v. Dist. of
Columbia, 697 F. Supp. 2d 88, 92 n.6 (D.D.C. 2010) (citing Howard
Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C. 1994)); see also,
e.g., Wicks, 701 F. Supp. 2d at 43-44 (“Discrimination claims
brought under the DCHRA are analyzed in the same manner as claims
brought under Title VII[.]” (citing cases)); Elam v. Bd. of Trs.,
530 F. Supp. 2d 4, 22 n.7 (D.D.C. 2007) (“The elements of a
hostile work environment claim under the DCHRA mirror the federal
requirements.” (citing Lively v. Flexible Packaging Assoc., 830
A.2d 874, 889 (D.C. 2003))). Likewise, age discrimination claims
brought under the DCHRA are analyzed in the same manner as claims
arising under the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621 et seq. (the “ADEA”). See Schuler v.
PricewaterhouseCoopers, LLP, 595 F.3d 370, 376 (D.C. Cir. 2010)
(“The courts of the District of Columbia ‘look[] to federal court
22 decisions interpreting the [ADEA] when evaluating age
discrimination claims under the DCHRA.’” (quoting Washington
Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1073 n.7 (D.C.
2008))).
As a threshold matter, defendant argues that plaintiff’s
claims under the DCHRA are barred for failure to comply with D.C.
Code § 12-309 (“§ 12-309”). Defendant also asserts, however,
that plaintiff’s DCHRA claims fail as a matter of law.
Plaintiff, in turn, contends that her claims are in full
compliance with § 12-309, and further asserts that genuine issues
of material fact preclude an award of summary judgment on her
DCHRA claims. The Court will begin by addressing defendant’s
argument with regards to § 12-309.
a. D.C. Code § 12-309
Defendant first argues that “judgment must be entered in
favor of the District for plaintiff’s failure to comply with the
mandatory requirements of § 12-309.” Def.’s Mot. at 11. This
provision states:
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.
23 D.C. Code § 12-309. “Th[is] notice requirement is a prerequisite
to a suit against the District of Columbia ‘because it represents
a waiver of sovereign immunity.’” Blocker-Burnette v. District
of Columbia, 730 F. Supp. 2d 200, 203 (D.D.C. 2010) (quoting
Faison v. District of Columbia, 664 F. Supp. 2d 59, 68 (D.D.C.
2009)). Compliance with the notice requirement is mandatory,
id., and “‘is to be strictly construed[.]’” Barnhardt v.
District of Columbia, 601 F. Supp. 2d 324, 329 (D.D.C. 2009)
(quoting Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.
1981)). In addition, the District of Columbia Court of Appeals
recently clarified that § 12-309 “applies to claims for
unliquidated damages brought against the District of Columbia
under the DCHRA.” Owens v. District of Columbia, 993 A.2d 1085,
1089 (D.C. 2010).
The issue before the Court, therefore, is whether plaintiff
satisfied § 12-309 when she sent a letter to an individual in the
District of Columbia Public School’s Office of Human Resources,
which stated that she had been “discriminated against due to her
age and gender” and that she was “comfortable taking this
complaint of discrimination to trial.” See Def.’s Ex. 4, Letter
Dated Sept. 20, 2004; see also Def.’s Ex. 3, Pl.’s Resp. to
Def.’s Interrog. (contending that the District was put on notice
of plaintiff’s claim as a result of the September 2004 letter).
Although the Court previously found this letter sufficient to
24 satisfy the notice requirement of § 12-309, see March 2009 Mem.
Op. at 6, upon further consideration, the Court VACATES its
earlier finding. See Fed. R. Civ. P. 54(b) (providing, in
relevant part, that “any order or other decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . . may be
revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities”). As
this Court recently explained, § 12-309 may only be satisfied by
two types of notice: (i) written notice to the Mayor of the
District; or (ii) a report prepared by the Metropolitan Police
Department in the regular course of duty. See Martin v. District
of Columbia, 720 F. Supp. 2d 19, 24 (D.D.C. 2010).
Because § 12-309 “is to be construed narrowly against
claimants,” Owens, 993 A.2d at 1088 (internal quotation marks
omitted), the Court cannot conclude that plaintiff’s letter to
the District of Columbia Public School’s Office of Human
Resources satisfied § 12-309. See also, e.g., Brown v. District
of Columbia, 251 F. Supp. 2d 152, 165 (D.D.C. 2003) (finding that
the plaintiff failed to satisfy § 12-309 when she sent letters to
the District’s police chief, D.C. Corporation Counsel for the
District of Columbia, the Office of the United States Attorney
25 for the District of Columbia, and other local government
officials). Accordingly, to the extent that plaintiff seeks
unliquidated damages from the District for her DCHRA claims, the
Court finds that these claims are barred for failure to comply
with § 12-309.12
b. DCHRA Discrimination Claims
The Court must now determine whether summary judgment is
warranted as to plaintiff’s DCHRA claims for hostile work
environment, sex discrimination, and age discrimination insofar
as plaintiff seeks liquidated damages for these claims. For the
reasons set forth above, the Court finds that defendant is
entitled to summary judgment on plaintiff’s claims for hostile
work environment and sex discrimination under the DCHRA. See
supra Section III.B.i.b (finding that the totality of
circumstances presented in the record before the Court does not
rise to the level necessary to support a hostile work environment
claim) and Section III.B.ii.b (concluding that plaintiff failed
to put forth sufficient evidence to rebut defendant’s legitimate,
12 Section 12-309 only requires notice for actions seeking unliquidated damages, such as compensatory and punitive damages. Plaintiff’s DCHRA claims are not barred, therefore, to the extent that she is seeking back pay and other equitable relief. See Blocker-Burnette, 730 F. Supp. 2d at 204-05 (explaining that awards of back pay and other equitable relief are not barred by a party’s failure to comply with § 12-309, while claims for compensatory and punitive damages are barred if notice is not given).
26 non-discriminatory reasons for plaintiff’s termination).
Plaintiff’s only remaining claim, therefore, is her claim for age
discrimination under the DCHRA. For the reasons discussed below,
the Court finds that summary judgment must be awarded to
defendant on this claim as well.
“[A] claimant under the DCHRA, if he [or she] is to survive
summary judgment, must show a reasonable jury could find his [or
her] age ‘had a determinative influence on the’ challenged
employment action.” Schuler, 595 F.3d at 376 (citing Washington
Convention, 953 A.2d at 1073). Having closely reviewed the
record in this case, the Court finds that in light of defendant’s
legitimate, non-discriminatory reasons for plaintiff’s
termination, no reasonable jury could find that plaintiff’s age
either “‘had a determinative influence’” upon defendant’s
decision to terminate her or was the “‘but-for’ cause of that
decision.” Id.13 Accordingly, the Court hereby GRANTS
defendant’s motion for summary judgment as to plaintiff’s age
discrimination claim under the DCHRA.
13 Indeed, plaintiff provides no response to defendant’s assertion that “[she] has provided no evidence that her age was a factor in her termination from her position as Principal of Anacostia High School on July 23, 2003,” Def.’s Mot. at 13. See generally Pl.’s Opp’n.
27 IV. CONCLUSION
For the reasons set forth above, the Court hereby GRANTS
defendant’s motion for summary judgment. An Amended Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge April 7, 2011