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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-CV-0366
VANESSA SAMPAY, APPELLANT,
V.
AMERICAN UNIVERSITY, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2017-CA-008360-B)
(Hon. Kelly A. Higashi, Trial Judge)
(Argued December 9, 2021 Decided May 18, 2023)
Jeremy Greenberg, with whom Denise M. Clark was on the brief, for appellant.
John M. Remy for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and FISHER, Senior Judge.
BLACKBURNE-RIGSBY, Chief Judge: Appellant Vanessa Sampay filed a four-
count complaint alleging various violations of the District of Columbia Human
Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq., by her employer, appellee
American University (“AU”). AU filed a motion for summary judgment on all 2
counts, and appellant filed a motion for partial summary judgment as to Count IV,
which alleged impermissible retaliation. The trial court granted AU’s motion and
denied appellant’s motion. Appellant appeals the trial court’s grant of summary
judgment for AU as to the retaliation claim only. We limit our review of the trial
court’s decision accordingly and affirm.
I. Factual Background & Procedural History
In 1999, appellant was hired by AU to work as a “HelpDesk Specialist” before
being promoted in 2001 to a “LAN Analyst II” in its Office of Information
Technology (“OIT”). In 2014, Hosein Nahidian, a former peer, became her direct
supervisor. Appellant’s performance reviews were generally positive for years
2014-2015 and 2015-2016, although appellant was characterized as “partially
meet[ing]” some expectations.
However, in April 2016 following multiple performance concerns, Mr.
Nahidian issued appellant a formal written warning. Appellant challenged the
warning by filing a grievance memorandum with Mr. Nahidian and human 3
resources. 1 However, Mohammad Mirzabeigy, Mr. Nahidian’s direct supervisor,
ultimately upheld the warning in June 2016. According to his responsive
memorandum, Mr. Mirzabeigy concluded that the conduct underlying the warning
was consistent with performance concerns previously raised by Mr. Nahidian and
reflected in her past performance reviews. 2 Mr. Mirzabeigy also concluded that her
need to provide care for her sick child during the relevant time period did not provide
an adequate excuse for not completing her project on time. Kamalika Sandell,
Associate Chief Information Officer, thereafter issued appellant a “Communication
of Expectations” memorandum outlining the expectations for how appellant was
expected to improve her job performance.
Appellant responded to the Communications of Expectations memorandum
by reporting to Ms. Sandell that there were “errors” in the position description for
her role as a “LAN Analyst II.” In response, in October 2016, appellant received a
change of title and position description, transferring her within OIT to the role of
“Systems Engineer.” Per AU’s policy for employees who transfer positions,
1 AU represents that it uses the terms “human resources” and “employee relations” interchangeably. Appellant has not contested this characterization, and so we use these terms flexibly. 2 The record does not contain information about what, if any, investigation preceded this determination. 4
appellant was placed on probation by AU’s Employee Relations Office for a period
of four months. Consequently, the probationary period was set to expire on March
1, 2017. Mr. Nahidian remained her direct supervisor.
On January 3, 2017, appellant received a subpoena by the District Court of
Maryland for Prince George’s County to testify on January 25, 2017 at a criminal
trial that involved an intra-family dispute. She did not inform Mr. Nahidian or
human resources of her need to take leave at that time. After normal business hours
on January 24, 2017, appellant sent an e-mail to Mr. Nahidian and other colleagues
notifying them that she would not be at work the following day. Her message read:
“I will be out of the office tomorrow to attend[] to a personal matter, but will try to
be online later in the afternoon.” The next day, appellant did not show up to work.
Mr. Nahidian replied directly to appellant that morning: “When was this leave
approved? As we discussed back in November, any personal leave needs to be
scheduled and approved ahead of time. This again raises my concern of your
reliability to the team and ability to follow process.”
On January 26, 2017, appellant returned to work. Appellant responded to Mr.
Nahidian’s e-mail stating: “I’m sorry, I meant to mention it to you earlier. I didn’t
remember until after returning home with [my daughter] from dance [the] evening 5
[of January 24].” Shortly after receiving her e-mail, Mr. Nahidian requested a
private meeting with appellant in his office. After the meeting, appellant e-mailed
Mr. Mirzabeigy, and Ms. Sandell, to express concern that, inter alia, Mr. Nahidian
yelled at her during the meeting. 3 Appellant requested a meeting with the two of
them to address her concerns. The following day, appellant also sent an e-mail to
two individuals in the Employee Relations Office concerning the incident (the
“January 27, 2017 e-mail”), adding that, when she mentioned she was not at work
because she had to appear as a witness, Mr. Nahidian yelled at her to get out.
Appellant then met with Mr. Mirzabeigy and Ms. Sandell to discuss the
incident involving Mr. Nahidian. During this meeting, Mr. Mirzabeigy suggested
that appellant file a formal complaint with human resources. Appellant did so on
February 7, 2017, and filed a complaint titled “EEO Complaint of Discriminatory
3 In particular, appellant communicated the following in her e-mail:
[Mr. Nahidian] came to my desk and asked if he could speak to me. I followed him to his office and he said that all leave needed to be approved and that I was unreliable and that he was tired of it. He said that my leave would be unexcused. When I explained to him that I had to be out yesterday to appear as a witness in court he said that he didn’t care, that it would be unexcused. His yelling was unsettling to me and I don’t feel well. Attached is documentation concerning my absence. I would really like to speak with you [both] further concerning this matter. 6
Harassment.” Appellant did not allege the nature of the discrimination, she only
stated that she experienced “discriminatory harassment” and was “verbally
assaulted” by Mr. Nahidian.
On or around February 27, 2017, appellant was informed that Mr. Nahidian
and Mr. Mirzabeigy extended her probation for an additional four months based on
continuing concerns that they had about appellant’s job performance. This decision
to extend probation was one of three options available to supervisors at the end of a
probation period, in addition to placing an employee in regular employment status
or terminating the employee. Shortly thereafter, appellant complained to human
resources that the extension of probation was in retaliation for her complaint of
discrimination.
On March 6, 2017, human resources sent appellant a memorandum
concluding that AU “could not find sufficient evidence of discrimination”
motivating the January 26, 2017, incident, and that they “could not find sufficient
evidence of any retaliatory motive behind the decision to extend [appellant’s]
probation” which “was completed in line with University policy and practice.” 7
Human resources acknowledged that submitting a complaint is a legally protected
activity, and retaliation against someone who files a complaint is prohibited.
On April 6, 2017, Mr. Mirzabeigy instituted a Performance Improvement Plan
(“PIP”) for appellant based on concerns with appellant’s ability to: perform her
systems administration duties; timely communicate status updates; respond to
general inquiries; problem solve; properly escalate issues; and implement feedback.
Mr. Mirzabeigy communicated that the PIP would allow him to “independently
evaluate [appellant’s] work and determine which, if any, performance issues exist.”
During the PIP, Mr. Mirzabeigy and appellant were to meet weekly about the goals
outlined in the PIP and the progress made. Appellant was informed that “[f]ailure
to achieve all of the goals and demonstrate the competencies consistently . . . will
result in termination.” After fifteen weeks, nine more weeks than contemplated by
the PIP, Mr. Nahidian and Mr. Mirzabeigy determined that appellant did not show
sufficient improvement toward the performance goals and competencies set out in
the PIP. On July 21, 2017, appellant received a termination memorandum based on
her “failure to meet the requirements of a [PIP].” 8
On December 14, 2017, appellant filed a four-count employment
discrimination complaint in Superior Court, alleging (I) a hostile work environment
because of family responsibilities; (II) a retaliatory hostile work environment; (III)
disparate treatment because of family responsibilities; and (IV) disparate treatment
due to retaliation for filing her EEO Complaint. AU moved for summary judgment
on all counts, and appellant moved for partial summary judgment solely on Count
IV. The trial court granted AU’s motion and denied appellant’s motion. As to Count
IV, the trial court’s ultimate conclusion rested on the determination that appellant
failed to create a genuine dispute of material fact on the question of whether AU’s
legitimate business reasons for its various employment-related actions were merely
a pretext for a retaliatory act. Appellant’s appeal of the adverse judgment on her
retaliation claim timely followed.
II. Analysis
We review the grant of a motion for summary judgment de novo, applying the
same standard used by the trial court. Propp v. Counterpart Int’l, 39 A.3d 856, 871
(D.C. 2012). We affirm if we conclude that “there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” 9
Id. (internal quotations omitted). “Although we view the evidence in the light most
favorable to the party opposing the motion, conclusory allegations by the nonmoving
party are insufficient to establish a genuine issue of material fact or to defeat the
entry of summary judgment.” Furline v. Morrison, 953 A.2d 344, 352 (D.C. 2008)
(internal quotations omitted).
The DCHRA makes it “an unlawful discriminatory practice for an employer
to take adverse action against an employee . . . for a [prohibited] discriminatory
reason . . . .” Furline, 953 A.2d at 352 (internal quotations omitted). 4 Further, the
DCHRA “makes it unlawful for an employer to retaliate against an employee for
opposing an employment practice that is prohibited by the Act[,]” such as
discrimination. Vogel v. D.C. Off. of Plan., 944 A.2d 456, 463 (D.C. 2008).
4 Appellant did not plead in her complaint that she was retaliated against only in part for a discriminatory reason, nor did appellant argue in her motion for partial summary judgment that she was retaliated against only in part for a discriminatory reason. Further, although appellant cited to the pertinent legal standards establishing that this jurisdiction recognizes a “mixed motive” theory of retaliation under the DCHRA, appellant did not raise any arguments in her appellate briefs or during oral argument suggesting she is raising a mixed motive claim. Accordingly, we conclude that appellant has not raised such a claim, and, therefore, we do not address whether AU acted with a mixed motive. See Furline, 953 A.2d at 353. 10
In cases where the plaintiff “rel[ies] on circumstantial evidence, rather than
direct evidence linking the personnel action to a forbidden motive, we evaluate [the
plaintiff’s claim] utilizing the tripartite burden-shifting framework set forth in
[McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Furline, 953 A.3d at
352. Under the McDonnell Douglas burden-shifting framework,
a plaintiff bears the initial burden of producing evidence to sustain a prima facie case. If the plaintiff satisfies this burden, the employer must then produce evidence of a legitimate, nondiscriminatory or nonretaliatory reason for its action. If the employer offers a legitimate, nondiscriminatory or nonretaliatory reason, the burden then shifts back to the plaintiff to present evidence that the employer’s proffered reason is pretextual. The ultimate burden of persuasion rests with the plaintiff to show that the defendant acted with impermissible motive or intent.
Propp, 39 A.3d at 863 (quoting Chang v. Inst. for Pub.-Priv. P’ships, Inc., 846 A.2d
318, 329 (D.C. 2004)) (cleaned up); see also McDonnell Douglas, 411 U.S. at 802-
04. We address each step of the McDonnell Douglas framework, applying this
standard, in turn.
A. Prima Facie Case of Retaliation
“To establish a prima facie case of retaliation, the plaintiff must demonstrate
by a preponderance of the evidence that: (1) [she] was engaged in a protected activity
. . . ; (2) the employer took an adverse action against [her]; and (3) a causal 11
connection existed between [her] opposition or protected activity and the adverse
action taken against [her].” Propp, 39 A.3d at 863.
1. Protected Activity
As an initial matter, the parties disagree as to what conduct of appellant
constitutes protected activity for purposes of this appeal. See Powell v. Am. Red
Cross, 518 F. Supp. 2d 24, 36 (D.D.C. 2007) (“[N]ot every complaint by an
employee is encompassed by the DCHRA.”). The trial court’s order stated that
Count IV of the Complaint alleged that the retaliation was based on appellant’s
submission of her February 7, 2017 EEO Complaint to human resources, a protected
activity. 5 However, on appeal, appellant contends that both her January 27, 2017 e-
mail to human resources and her February 7, 2017 EEO Complaint constituted
protected activities. In response to AU’s argument that appellant should be limited
5 The trial court does not appear to have made a finding concerning whether the filing of the February 7, 2017 EEO Complaint constituted a protected activity, which AU disputed below and continues to dispute on appeal. It is unclear whether that was an inadvertent omission or the trial court determined it need not reach that question, having found appellant failed to prove pretext. Regardless, the parties have fully briefed this question on appeal and we deem it properly before us. 12
to the allegations set forth in her complaint, appellant contends that the trial court
was aware of the January 27 e-mail.
The question is not whether appellant had introduced the January 27, 2017 e-
mail into the record, but whether appellant had sufficiently pleaded that the January
27, 2017 e-mail constituted protected activity in her complaint. See generally Scott
v. District of Columbia, 493 A.2d 319, 323 (D.C. 1985) (“It is not error . . . for a trial
judge to limit his consideration to issues unequivocally raised by the complaint.”).
Even construing the complaint liberally, appellant references only the February 7,
2017 EEO Complaint after the header contending that “After Engaging in Protected
Activity, Ms. Sampay Is Placed on Probation.” Appellant’s only reference to the
January 27, 2017 e-mail in the complaint is a vague statement that the “evening and
the next day [after the meeting with Mr. Nahidian], [appellant] reported the incident
to [AU’s] Employee Relations office.” Likewise, appellant’s motion for partial
summary judgment only argued that she “engaged in protected activity when she
submitted her EEO complaint to [AU].” Again, appellant failed to allege that the
January 27, 2017 e-mail constituted protected activity. In consideration of the entire
record, we conclude that appellant failed to sufficiently allege that the January 27, 13
2017 e-mail constituted a protected activity. Accordingly, we deem it not properly
before us for review. 6
Turning now to whether the February 7, 2017 EEO Complaint constituted
protected activity within the meaning of the DCHRA, we conclude that it did. We
have previously stated that the “employee must alert the employer that she is lodging
a complaint about allegedly [unlawful] discriminatory conduct.” Vogel, 944 A.2d at
464 (internal quotation marks omitted). Even if the actions complained of were
lawful, an “employee is protected from retaliation . . . so long as the employee
reasonably believed the employer’s action was discriminatory.” Propp, 39 A.3d at
863. Although “no ‘magic words’ are required,” Broderick v. Donaldson, 437 F.3d
1226, 1232 (D.C. Cir. 2006), 7 employees are required to put their employer on notice
6 We note that even were we to consider appellant’s January 27, 2017 e-mail informing her supervisors that Mr. Nahidian yelled at her due to her family responsibilities to be before us and we were to conclude that it constituted protected activity, we would still reach the same conclusion that the trial court properly granted summary judgment to AU. All of the adverse employment actions alleged occurred after the February 7, 2017 EEO Complaint. Accordingly, through the February 7, 2017 EEO Complaint, appellant has established as part of her prima facie case that she engaged in protected activity prior to any of the adverse employment actions regardless of whether the January 27, 2017 e-mail separately constituted a protected activity. 7 “This court has often looked to cases construing Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. to aid us in construing the D.C. Human Rights 14
of the grounds on which discrimination is alleged, see Howard Univ. v. Green, 652
A.2d 41, 46 (D.C. 1994) (explaining that a complaint alleging favoritism but not
explaining that it was the result of sexual orientation discrimination was insufficient
notice of the nature of the claim of discrimination). Where a complaint fails to make
the nature of the discrimination explicit, “an employer’s awareness [of the nature of
the complaint] may be inferred in a given set of factual circumstances, the employee
must sufficiently alert the employer to the nature of her complaint.” Id. at 48;
Howard Univ., 652 A.2d at 47 (“[T]he communication of a complaint of unlawful
discrimination, in a given set of factual circumstances, may be inferred or implied[.]”
(citation and emphasis omitted)).
Appellant’s February 7, 2017 EEO Complaint did not explicitly set forth the
context of the discrimination that was alleged. However, the record reflects that AU
was aware of the circumstances from which the initial incident arose, including that
it was family-related. Additionally, we find it relevant that AU contemporaneously
acknowledged in its “Determination of Complaint” that appellant’s complaint
alleged that her supervisor “engaged [in] discrimination.” We conclude that taken
Act.” Propp, 39 A.3d at 864 n.11 (quoting Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 n.17 (D.C. 1993)) (cleaned up). 15
together, this is sufficient for appellant to have satisfied her burden of proof at this
stage. See Gallo v. Prudential Residential Servs., Ltd. P’ship., 22 F.3d 1219, 1225
(2d Cir. 1994) (“[P]laintiff’s burden of proof [of establishing a prima facie case] . . .
under the McDonnell Douglas[] analysis is de minimis at this stage . . . .”).
2. Adverse Employment Action
An adverse employment action is one in which “a reasonable employee would
have found the challenged action materially adverse which . . . means it well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Propp, 39 A.3d at 863-64 (quoting Burlington N. & Santa Fe Ry.
v. White, 548 U.S. 53, 68 (2006)). The burden of demonstrating that a reasonable
worker might well have been dissuaded from making or supporting a charge of
discrimination does not require a showing that the retaliatory conduct directly
affected the terms and conditions of employment. See Bereston v. UHS of Del., Inc.,
180 A.3d 95, 112 n.51 (D.C. 2018) (quoting Burlington N., 548 U.S. at 68); see also
Powell v. Lockhart, 629 F. Supp. 2d 23, 42 (D.D.C. 2009) (explaining that the
materiality standard for a retaliation claim is more liberal). However, “the standard
of material adversity is meant to separate significant from trivial harms . . . .”
Bereston, 180 A.3d at 112 (internal citations and quotations omitted). “[N]ot 16
everything that makes an employee unhappy is an actionable adverse action.” Id.
(citation omitted).
On appeal, appellant argues that three discrete actions by AU constituted
adverse employment actions: (1) AU extended her probation an additional four
months; (2) AU issued her a PIP; and (3) AU terminated her. We address each in
turn.
AU’s extension of probation constitutes an adverse action for purposes of
maintaining a retaliation claim because it could have dissuaded appellant from
pursuing her claim of discrimination. See, e.g., Smart v. Ball State Univ., 89 F.3d
437, 442 (7th Cir. 1996) (suggesting that probation could constitute an adverse
employment action for a retaliation claim). Although AU in its brief argues that
appellant cannot demonstrate that she was harmed in any way, demonstrating harm
is the requirement for a discrimination claim, not a retaliation claim. See Bereston,
180 A.3d at 112 n.50. Even if AU had a lawful business reason for extending
appellant’s probationary period (which may contribute to a finding that the action
was not pretextual), a lawful business reason does not prevent the extension of
probation from constituting an adverse action. See Propp, 39 A.3d at 866. For the 17
same reason, AU errs in its argument that placement of appellant on a PIP was not
an adverse action. See also Powell, 629 F. Supp. 2d at 42-43 (concluding that a PIP
was capable of constituting an adverse employment action for a retaliation claim).
Finally, we can summarily conclude, and AU does not contest, that AU’s decision
to terminate appellant constituted an adverse employment action. Nicola v.
Washington Times Corp., 947 A.2d 1164, 1172 (D.C. 2008) (“Job termination [is]
inherently an ‘adverse employment action.’”).
3. Causal Connection
Next, we must consider whether appellant has established as part of her prima
facie case that there was a causal connection between the protected activity and the
adverse action taken against her. See Propp, 39 A.3d at 868. We consider whether
appellant has presented sufficient evidence that there was a causal connection
between her filing of the February 7, 2017 EEO Complaint and the adverse
employment actions. The three alleged events took place between about three weeks
and five-and-a-half months following the protected activity.
“Temporal proximity between the protected activity and the adverse action
can establish the causal connection.” Propp, 39 A.3d at 868. In other words, the 18
causal connection “may be established by showing that the employer had knowledge
of the employee’s protected activity, and that the adverse personnel action took place
shortly after that activity.” Hollins v. Fed. Nat. Mortg. Ass’n, 760 A.2d 563, 579
(D.C. 2000) (citation omitted). In the past, we have considered time periods of two
days and nine days between the protected activity and the adverse employment
action sufficient. See, e.g., Carter-Obayuwana v. Howard Univ., 764 A.2d 779, 793
(D.C. 2001) (concluding two days was sufficient); Nicola, 947 A.2d at 1175
(determining nine days was sufficient and further noting the D.C. Circuit’s approval
of a period of a few weeks in Gleklen v. Democratic Cong. Campaign Comm., Inc.,
199 F.3d 1365, 1368 (D.C. Cir. 2000)). 8
What is less clear is whether, as appellant contends, a plaintiff can establish a
causal connection where there was a four (or five) month lapse between the initial
protected activity and the adverse employment action. Appellant contends that this
court in Propp concluded the plaintiff presented sufficient evidence of a causal
8 The causal connection need not be proved through a temporal proximity between events. See, e.g., Propp, 39 A.3d at 868 (considering direct evidence of a causal connection). However, appellant has not alleged that there is direct evidence of a causal connection, nor can any be discerned from an independent review of the record. 19
connection as part of his prima facie case where there was a four-month period
between the protected activity and the adverse employment activity. It is unclear
whether that is an accurate characterization. In Propp, the protected action was a
letter that Propp’s counsel sent to his employer contesting his termination and the
adverse action was the employer’s refusal, five months later, to negotiate a future
consulting agreement without adding punitive terms to the contract. 39 A.3d at 860-
61, 866. However, when discussing Propp’s prima facie case, we noted that in
addition to the “close” temporal link, there was direct testimonial evidence and party
admissions showing that the adverse employment action was undertaken in direct
response to the protected activity. Id. at 868. As such, we did not opine about
whether the temporal connection considered alone would have been sufficient to
satisfy Propp’s burden. Here, whatever implications that the lapse in time may have
on appellant’s ability to satisfy her ultimate burden, we think it is nevertheless
sufficient to establish her prima facie case. But cf. Johnson v. District of Columbia,
935 A.2d 1113, 1120 (D.C. 2007) (concluding in the context of the District of
Columbia Whistleblower Protection Act, D.C. Code § 1-615.51 et seq., that a
plaintiff failed to create a genuine dispute of material fact on the question of whether
there was a causal connection based on a four-month lapse of time between a
protected disclosure and an adverse employment action). 20
B. Legitimate, Non-Retaliatory Reason
“Once [plaintiff] has presented a prima facie case of retaliation, the burden
shifts to [the employer] to show a legitimate, non-retaliatory reason for the contested
action.” Propp, 39 A.3d at 868. At this stage, the employer need only make a
proffer; the persuasiveness of the evidence is not considered until the court needs to
determine whether that reason was pretextual. See generally Johnson v. District of
Columbia, 225 A.3d 1269, 1281-82 (D.C. 2020).
AU proffered legitimate, non-retaliatory reasons for its actions. As for its
decision to extend appellant’s probation, AU proffers that the decision to do so was
done in lieu of termination under AU’s policies to allow appellant further time to
improve in her role. Similarly, AU proffers that its decision to impose the PIP was
also in lieu of termination. Finally, AU proffers that appellant’s termination
followed a determination that appellant failed to “adequately achieve the goals and
competencies set forth within the PIP, even after [AU] gave [appellant] a four-week
extension of the PIP.” Accordingly, we conclude that AU has satisfied its initial
burden of production and the burden has shifted back to appellant to demonstrate
pretext. 21
C. Pretext
Once an employer has proffered a legitimate, non-retaliatory business reason
for its action, the burden shifts back to the plaintiff to establish by a preponderance
of the evidence that the employer’s proffered reasoning for its action was not its true
reason, but a pretext for retaliation. Johnson, 225 A.3d at 1281; Atl. Richfield Co.
v. D.C. Comm’n on Human Rights, 515 A.2d 1095, 1100 (D.C. 1986) (“[The
employee’s burden of production to show pretext] merges with the ultimate burden
of persuasion on the question of intentional discrimination.”). To survive a motion
for summary judgment, a plaintiff must set forth sufficient evidence that, after
considering both the plaintiff’s evidence and drawing all reasonable inferences in
their favor, the employee has created a genuine dispute of material fact on the
question of whether the employer’s proffered reasoning was pretextual. Hollins, 760
A.2d at 562 n.6. This requires that the employee “either directly [establish pretext]
by [proving] that a [retaliatory] reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of 22
credence.” Id. at 573 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,
256 (1981)).
While temporal proximity may be used to establish pretext, “positive evidence
beyond mere [temporal] proximity is required to defeat the presumption that the
proffered explanations are genuine.” Woodruff v. Peters, 482 F.3d 521, 530 (D.C.
Cir. 2007). An employer’s failure to follow its own policies can provide this type of
affirmative evidence of pretext. See, e.g., Jeffries v. Barr, 965 F.3d 843, 858 (D.C.
Cir. 2020); Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d 210, 224 (D.C. Cir.
2016); Houston v. SecTek, Inc., 680 F. Supp. 2d 215, 221 (D.D.C. 2010). However,
“an employer’s failure to follow its own regulations and procedures, alone, may not
be sufficient to support the conclusion that its explanation for the challenged
employment action is pretextual - but such a failure is certainly not irrelevant.”
Jeffries, 965 F.3d at 858 (cleaned up). Moreover, “courts are not free to second-
guess an employer’s business judgment, and a plaintiff’s mere speculations are
insufficient to create a genuine issue of fact regarding an employer’s articulated
reasons for its decisions,” Propp, 39 A.3d at 870 (quoting Furline, 953 A.2d at 354) 23
(cleaned up). But “employers cannot shield their adverse actions as business
judgment if the record belies the proffered reason.” Id.
Appellant contends that AU’s failure to abide by its written policies by
extending her probation without her supervisor completing an extension of probation
form by the end of the probation period was evidence of pretext. Although AU
characterizes this as “literally an argument of form over substance,” appellant
characterizes this as a requisite action under AU’s probation policies that was
consequential because appellant would have been automatically converted to regular
employee status absent completion of the form. While it is true that under AU’s
policy appellant’s supervisor was required to complete the form, appellant does not
provide anything other than conjecture to explain why the failure to fill out the form
is evidence of pretext.
It is uncontested that at the end of a probation period the employee’s
supervisor may extend probation up to four months, place an employee in regular
employment status, or terminate the employee. Although appellant contends that
she was entitled to the benefit of an automatic return to regular status because her
supervisors did not complete the form, it is uncontested that the same form states 24
that a supervisor seeking to extend probation is asked to “please contact the
Employee Relations Team” in the space prior to indicating how the initial period of
probation was resolved. Consequentially, appellant’s contention that her
supervisors’ decision to verbally contact human resources, rather than complete a
form to send to human resources, was evidence of pretext, when the ultimate
outcome of extending her probation would have been the same, is insufficient to
create a genuine dispute of material fact on the question of pretext.
Likewise, appellant’s other arguments concerning AU’s failure to follow its
policy requiring completion of the form to extend probation also fail to create a
genuine dispute of material fact on the question of pretext. For example, appellant
has not introduced any evidence in the record demonstrating that the failure to
complete this form was a unique practice as to her, rather than a common practice at
AU. Cf. Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“In
fact, the procedure that the [employer] followed is reasonable and was, according to
undisputed testimony, its usual procedure. That is, departure from the prescribed
procedure had become the norm.”). Nor has appellant introduced any evidence in
the record demonstrating that failure to follow the process otherwise deprived her of
the protections afforded to her by this policy. Cf. Lathram v. Snow, 336 F.3d 1085,
1093 (D.C. Cir. 2003) (concluding a jury could find an employer’s decision to make 25
an internal applicant compete against external applicants for a directorship pretextual
when the employer had not instituted that practice for other directorships being filled
around the same time).
Appellant further argues that AU’s failure to abide by its PIP policies is
evidence of pretext. Appellant contends that AU did not adhere to its stated
procedures because Mr. Mirzabeigy did not “independently evaluate” her, but relied,
at least in part, on Mr. Nahidian’s opinion on her performance. On the other hand,
AU argues that appellant errs in asserting that the PIP prohibited Mr. Nahidian’s
involvement or that Mr. Mirzabeigy’s evaluation was not otherwise independent.
The record does not support appellant’s arguments. First and foremost, no evidence
in the record indicates that AU had a specific policy of requiring a PIP evaluation
without any involvement of an employee’s direct supervisor. Second, while it is true
that the letter communicating the PIP expressed that Mr. Mirzabeigy would
“independently evaluate” appellant’s work performance, AU correctly notes that
neither the letter nor the PIP itself disclaims any involvement by Mr. Nahidian.
Indeed, it is hard to reconcile how Mr. Mirzabeigy could “actually determine”
whether there were performance issues without communicating with Mr. Nahidian
about her work, especially when the action plan for at least one goal outlined that 26
there would be “[b]iweekly team meetings with your manager [Mr. Nahidian] and
the senior director [Mr. Mirzabeigy].”
Next, appellant argues that AU’s reason for terminating her—that she failed
to satisfy the PIP—was pretextual. Relevant to the termination, appellant argues
that pretext can be established because AU’s proffered legitimate, nondiscriminatory
reasons were induced or otherwise tainted by Mr. Nahidian’s influence because he
had a retaliatory motive based on his knowledge of the February 7, 2017 EEO
Complaint. AU argues that appellant errs in asserting that Mr. Nahidian knew of the
February 7, 2017 EEO Complaint or that there was otherwise evidence that Mr.
Nahidian expressed a retaliatory motive, but that even if he did, Mr. Mirzabeigy’s
evaluation was still independent.
Although it is relevant whether Mr. Nahidian knew of the February 7, 2017
EEO Complaint, appellant must create a genuine dispute of material fact on the
question of whether the actual decision-maker—in this case Mr. Mirzabeigy—
possessed the discriminatory motive or was tainted or influenced by someone who
possessed a discriminatory motive. Furline, 953 A.2d at 354. Even assuming Mr.
Nahidian knew of the February 7, 2017 EEO Complaint and, therefore, possessed a 27
retaliatory motive, because the complaint was not lodged against Mr. Mirzabeigy,
appellant has not introduced evidence creating a genuine dispute of material fact
concerning whether Mr. Mirzabeigy himself possessed a retaliatory motive.
Appellant also has not created a genuine dispute of material fact concerning
the question whether Mr. Mirzabeigy was tainted or influenced by Mr. Nahidian’s
allegedly retaliatory motive, rather than making the decision to terminate her based
on his independent judgment after continued documented performance issues
despite being on a PIP for an extended period of time. 9 The record, without evidence
to the contrary, reflects that at times Mr. Mirzabeigy’s evaluation of appellant’s
performance diverged from Mr. Nahidian’s evaluation in appellant’s favor. For
example, Mr. Mirzabeigy stated at one point during the PIP process that appellant
was doing “much better” based on his personal observations of her in meetings, even
though Mr. Nahidian thought to the contrary. Beyond that, appellant does not
identify a single instance in which Mr. Mirzabeigy merely adopted, uncritically, Mr.
Nahidian’s opinions about appellant’s performance. Further, Mr. Mirzabeigy
testified to his belief he was independently evaluating appellant and appellant has
9 We are unpersuaded by appellant’s arguments that there is a material dispute of fact over whether appellant failed to meet the performance standards outlined in her termination letter. 28
not produced evidence beyond speculation to the contrary. Even viewing this issue
in the light most favorably to appellant, appellant cannot survive summary judgment
on the issue of whether she “directly [established pretext] by [proving] that a
[retaliatory] reason more likely motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of credence.” Hollins, 760 A.2d
at 573 (internal quotations omitted).
III. Conclusion
Based on the foregoing, we conclude that appellant’s filing of her February 7
EEO Complaint constituted a protected activity within the meaning of the DCHRA.
However, appellant has failed to create a genuine dispute of material fact on the
question of whether AU’s stated legitimate, non-retaliatory reasons for taking
adverse actions against her were, in fact, pretextual. Therefore, the grant of summary
judgment in favor of AU by the trial court as to Count IV is, hereby, affirmed.
So ordered.