UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHINYERE UZOUKWU,
Plaintiff,
v. Case No. 11-cv-00391 (CRC)
METROPOLITAN WASHINGTON COUNCIL OF GOVERNMENTS, et al.,
Defendants.
MEMORANDUM OPINION
On September 18, 2015, the Court granted in part and denied in part Defendants’ motion
for summary judgment in this employment-discrimination action against the Metropolitan
Council of Governments (“COG”) and three of its executives. See Uzoukwu v. Metro. Wash.
COG, 2015 WL 5541578 (D.D.C. Sept. 18, 2015) (Mem. Op., ECF No. 90). In that opinion, the
Court reviewed Defendants’ challenges to the following counts in Plaintiff Chinyere Uzoukwu’s
Amended Complaint: hostile work environment based on ethnicity in violation of 42 U.S.C.
§ 1981 by Calvin Smith, the former director of the department in which Uzoukwu worked
(Count I); retaliation in violation of 42 U.S.C. § 1981 by Smith (Count II); retaliation in violation
of 42 U.S.C. § 1981 by Paul DesJardin, Uzoukwu’s supervisor, and Imelda Roberts, COG’s
Director of Human Resources (Count VI); hostile work environment and disparate treatment
based on ethnicity in violation of 42 U.S.C. § 1981 by COG itself (Count IX); and retaliation in
violation of 42 U.S.C. § 1981 by COG (Count X). 1
1 In an Order dated January 22, 2014, ECF No. 61, Judge Wilkins, who previously presided over this case, dismissed all of the other counts in the Amended Complaint that remained following Uzoukwu’s revisions to the original Complaint: tortious interference with economic advantage The Court found that Uzoukwu had proffered sufficient evidence to present her disparate
treatment claim against COG (part of Count IX) and retaliation claims (Counts II, VI, and X) to a
jury, but that she had not sufficiently made out a claim for hostile work environment (the other
part of Count IX). See Mem. Op., ECF 90. Defendants now move for clarification and
reconsideration of that ruling. They seek clarification on which claims survive against which
individual defendants, and they urge the Court to conclude that Uzoukwu has failed to make out
her disparate treatment claim and her retaliation claims against COG and individual Defendants
Smith and Roberts. 2
The Court will grant in part and deny in part the motion for reconsideration. It concludes
that Uzoukwu has presented sufficient evidence for her retaliation claim against COG to survive
summary judgment, but that she has not made out a disparate treatment claim against COG or
retaliation claims against Smith or Roberts in their individual capacities.
I. Retaliation Claim Against Smith
Uzoukwu alleges that she was terminated in retaliation for having complained of
discrimination. See Pl.’s Opp’n Defs.’ Mot. Clarification & Recons. 4 (noting that “each of the
remaining counts” in her Amended Complaint identified “terminat[ion]” and “loss of
employment” as the discriminatory and retaliatory adverse action she suffered (quoting Am.
by Smith (Count III); tortious interference by DesJardin and Roberts (Count VII); and negligent retention and supervision by COG (Count XVI). 2 Defendants do not appear to challenge the Court’s denial of summary judgment as to Uzoukwu’s retaliation claim against DesJardin beyond asserting that, because DesJardin had a hand in hiring Uzoukwu, the “same actor” inference “requires [her] to present further evidence” to defeat their motion for summary judgment. Defs.’ Mot. Clarification & Recons. 5. As discussed below, see note 5, infra, the Court is not persuaded by that argument. The Court will therefore deny Defendants’ motion for reconsideration as to this claim, to the extent they so move.
2 Compl., ECF No. 52 ¶¶ 109, 136, 158, 163)). In their motion for reconsideration, Defendants
emphasize that Smith was no longer employed at COG at the time of the termination; he retired
in January 2008, and Uzoukwu was terminated in March 2008. They also note that Uzoukwu
has not alleged that Smith participated in the termination decision.
While Title VII of the Civil Rights Act of 1964, the usual vehicle for federal
employment-discrimination claims, “does not impose individual liability on supervisory
employees,” Gary v. Long, 59 F.3d 1391, 1400 (D.C. Cir. 1995), the statute under which
Uzoukwu brings her claims, 42 U.S.C. § 1981, can impose such liability “for personal
involvement in discriminatory activity” that violates that section, Brown v. Children’s Nat’l
Med. Ctr., 773 F. Supp. 2d 125, 136 (D.D.C. 2011) (quoting Zaidi v. Amerada Hess Corp., 723
F. Supp. 2d 506, 516–17 (E.D.N.Y. 2010)). The D.C. Circuit has not articulated a test for
individual liability under § 1981, but the Court is persuaded by the Seventh Circuit’s formulation
and application of the standard in Smith v. Bray, 681 F.3d 888 (7th Cir. 2012), a case with a
number of factual parallels to this one.
Smith involved a claim of retaliation in violation of § 1981 by a human resources
manager. Because the plaintiff brought a claim of individual liability, the court concluded that
he had to show that the manager (1) “participated in the decision to fire him,” and (2) “was
motivated by a desire to retaliate against him for his complaints of . . . discrimination.” Id. at
892. The Second Circuit has similarly emphasized that “[p]ersonal liability under section 1981
must be predicated on the actor’s personal involvement” in the claimed violation, Patterson v.
Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (quoting Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)) (internal quotation mark omitted); that the
retaliation must have been “intentional,” id. at 226; and that there must have been “some
3 affirmative link to causally connect the actor with the [retaliatory] action,” id. at 229.
In Smith, the Court held that the plaintiff failed to establish individual liability because,
although he demonstrated that the human resources manager participated in the decision to
terminate his employment, he failed to show that she was personally motivated by retaliatory
animus. The human resources manager had received complaints of harassment from the plaintiff
without investigating them, had occasionally refused to speak with the plaintiff, had met with the
deciding official in the lead-up to the plaintiff’s termination, and had prepared the plaintiff’s
termination report. See Smith, 681 F.3d at 893, 895, 900. Against those facts, the Court
determined that her participation in the termination decision was sufficiently established, but
that, without more evidence that her “personal motives included retaliation,” the plaintiff had
failed to demonstrate retaliatory animus. Id. at 901.
Here, the reverse circumstances compel the conclusion that Uzoukwu has failed to
establish individual liability as to Smith. While she alleges facts that might support a finding of
retaliatory animus, 3 she does not dispute that Smith left the organization before she was
terminated, nor does she allege that he participated in the decision after leaving. Under the
Seventh and Second Circuits’ formulations, then, Uzoukwu has not sufficiently predicated
liability as to Smith on his “personal involvement” in the alleged adverse action. Patterson, 375
F.3d at 229; see also Smith, 681 F.3d at 892. Therefore, the Court will grant Defendants’ motion
for reconsideration as to this claim, as it cannot survive summary judgment.
II. Retaliation Claim Against Roberts
Uzoukwu’s claim against Roberts, COG’s human resources director, fails for the same
3 See section III, infra.
4 reasons as did the claim in Smith. Uzoukwu has demonstrated Roberts’s involvement in the
termination decision, but she has not established personal retaliatory animus. She points to
deposition testimony of David Robertson, COG’s Executive Director and the deciding official
for Uzoukwu’s termination. Robertson testified that, “working with Mr. DesJardin and Imelda
Roberts,” he decided to eliminate Uzoukwu’s position. Pl.’s Opp’n Mot. Summ. J., Ex. 15, at
31. In addition, he described having sought Roberts’s “perspective or recommendations,” id.,
and having solicited her input on the termination memo, id. at 33. As in Smith, where the human
resources manager had consulted with the deciding official prior to the termination and helped to
prepare the termination document, this evidence is sufficient to establish Roberts’s involvement
in the termination process.
But also like the plaintiff in Smith, Uzoukwu has not put forward evidence sufficient to
demonstrate retaliatory motivation as to Roberts. Although the plaintiff in Smith showed that he
had complained of discriminatory treatment by his supervisor and that the human resources
manager was aware of those complaints, he failed to show that those complaints motivated her
decision to recommend his termination. Rather, he demonstrated only that she had failed to
investigate his complaints against the supervisor and other employees, that she had refused to
speak with him on occasion, and that his termination came soon after his complaints. See 681
F.3d at 901. Without more, these facts were insufficient “to present a genuine issue of fact as to
whether [the manager’s] personal motives included retaliation.” Id. The same is true here.
Uzoukwu has alleged only that she complained to Roberts of her low performance evaluation
and reduction of responsibilities, Pl.’s Opp’n Mot. Summ. J. 6; id. Ex. 4, at 87–90; id. Ex. 9; that
Roberts was aware of her complaints made directly to Smith and DesJardin, see id. Ex. 11; that
Roberts took no action following her complaint about a joke she overheard a former employee
5 making that she “ha[d] the right name, but . . . the wrong color,” see id. Ex. 4, at 135–40; and
that Roberts did not handle another complaint about a fellow employee as effectively as she
could have, see id. Ex. 4, at 182–84. Even if true, these facts suggest no more than that Roberts
was aware of the difficulties surrounding Uzoukwu’s employment at COG and that at times, she
failed to act on Uzoukwu’s complaints. They do not support a reasonable inference that Roberts
harbored a retaliatory bias. Therefore, Uzoukwu has failed to make out a claim of retaliation
against Roberts, and the Court will grant Defendants’ motion for reconsideration as to this claim.
III. Retaliation Claim Against COG
Unlike her claims against Smith and Roberts, Uzoukwu’s retaliation claim against COG
is sufficiently supported to survive summary judgment. She has testified that she made several
complaints of discriminatory treatment, see id. Ex. 4, at 58, 88–89, 98–99, 109, 138–40, 4 and
there is no dispute that she was terminated. So the protected activity and adverse employment
action elements of Uzoukwu’s claim of retaliation are satisfied for purposes of summary
judgment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 578 (D.C. Cir. 2013). At issue on this
motion for reconsideration is the causation element; that is, whether Uzoukwu has proffered
sufficient evidence to establish that she was terminated because of retaliatory animus resulting
from her complaints of discrimination, rather than for the ostensibly legitimate reason proffered
by Defendants—that the economic downturn at the time forced it to cut staff.
As discussed in the Court’s previous opinion, the “cat’s paw” theory of liability allows a
plaintiff to hold an employer liable without having to show retaliatory animus on the part of the
4 Although Defendants challenge Uzoukwu’s assertion that she complained about the joke she overheard, see Defs.’ Mot. Supp. Clarification & Recons. 10–11, that is a question of fact appropriate for resolution at trial rather than at the summary judgment stage.
6 deciding official, so long as she can show that the deciding official was influenced either by
another official who harbored such animus or by an action by that official that proximately
caused the termination. See Uzoukwu, 2015 WL 5541578, at *10 (citing Staub v. Proctor Hosp.,
562 U.S. 411, 419 (2011)). Here, Uzoukwu has presented evidence from which a reasonable
jury could conclude that DesJardin, exhibiting his own retaliatory animus and being influenced
by that of Smith, in turn influenced the termination decision by consulting with Robertson, the
deciding official. Uzoukwu offers the following facts in support of DesJardin’s retaliatory
animus, Smith’s influence on his views, and DesJardin’s participation in her termination:
• DesJardin, along with Smith, reduced her work responsibilities, reassigning some of them to white employees, after she complained of his treatment of another African-American employee, Gary Givens, in May 2006. Pl.’s Opp’n Mot. Summ. J. 3–4; id. Ex. 4, at 68–69, 80, 89–90.
• DesJardin, along with Smith, assessed her performance at a low level in an appraisal in August 2006. See Pl.’s Opp’n Mot. Summ. J. 4–5; id. Ex. 4, at 81– 86; id. Ex. 5.
• After she complained that the initial appraisal was discriminatory, DesJardin, along with Smith, changed her appraisal rating to a higher score and insisted that the lower rating had never been given. See Pl.’s Opp’n Mot. Summ. J. 7; id. Ex. 1, at 20–21; id. Ex. 2, at 25–26; id. Ex. 3, at 26; id. Ex. 7; id. Ex. 8.
• In a memo to Uzoukwu, DesJardin, copying Smith and Roberts, characterized Uzoukwu’s complaint that the appraisal was discriminatory as “disturbing,” Pl.’s Opp’n Mot. Summ. J., Ex. 11, at 1, adding that he found her “pattern of making judgments against COG management and staff to be troubling and unacceptable,” id. at 2.
• In another memo to Uzoukwu, Smith, copying DesJardin and Roberts, expressed his “total disagreement” with her email complaint that a low performance rating he and DesJardin had given her was discriminatory, characterizing her complaint as “baseless and unwarranted,” lacking “collegiality,” “the most disturbing comment [he] ha[d] ever received in [his] 20 plus years of senior management,” and having a more “far reaching implication than a performance evaluation” in that “it seeks to undermine both the effectiveness of how [the department] is managed and the vision of the department moving forward.” Pl.’s Opp’n Mot. Summ. J., Ex. 13, at 1–2.
• In the same memo on which DesJardin was copied, Smith recommended that
7 Uzoukwu receive counseling through COG’s Employee Assistance Program (“EAP”) “at [her] earliest opportunity” due to her “lack of confidence,” “unprofessional tone and baseless accusations toward management.” Id. at 2.
• DesJardin took no action following Uzoukwu’s complaint about the joke she overheard a coworker making about her having the “right name” but the “wrong color.” See Pl.’s Opp’n Mot. Summ. J. 12; id. Ex. 4, at 138–40.
• In a memo following up on an earlier mandatory referral of Uzoukwu to EAP counseling, DesJardin, along with Smith, notified Uzoukwu that she was required to consent to disclosure of her diagnosis and treatment information in order to fully cooperate with the referral. See id. Ex. 20, at 1.
• DesJardin consulted with Robertson, the deciding official, leading up to Uzoukwu’s termination, and aided Robertson in deciding to eliminate Uzoukwu’s position. See id. Ex. 15, at 31–32.
A reasonable jury could conclude from these facts that DesJardin and Smith each
independently harbored retaliatory animus toward Uzoukwu; that, through their close
collaboration with respect to Uzoukwu’s complaints and disciplinary actions, DesJardin’s views
toward Uzoukwu were informed and influenced by Smith—who was DesJardin’s direct
supervisor, see id. Ex. 2, at 12; and that DesJardin, in turn, influenced Robertson’s decision to
terminate Uzoukwu through his participation in that decision. Because Smith was DesJardin’s
direct supervisor, a jury could conclude that Smith’s approach to Uzoukwu shaped their
communications with her and that, as a result, the memo that Smith authored and on which
DesJardin was copied—in which Smith criticized her for complaining about her performance
appraisal, see id. Ex. 13—influenced DesJardin’s perspective.
In addition, Uzoukwu offers further evidence of DesJardin’s retaliatory animus in the
form of another memo addressed to her from Smith. This memo, on which no one else was
copied, informed Uzoukwu of her mandatory referral to the EAP. In it, Smith explained that
Uzoukwu was required to attend counseling sessions for, among other reasons, “inappropriate
emails,” which, a jury could conclude, referred to her emailed complaints of discrimination. Id.
8 Ex. 17, at 1. Although DesJardin was not copied on this memo, he testified in his deposition that
he consulted with Smith and Roberts on the decision to issue the referral, that the referral was
made on Roberts’s recommendation, and that he concurred with the decision. See id. Ex. 2, at
62. In addition, when asked if he had been involved in drafting the memo notifying Uzoukwu of
the mandatory referral, DesJardin answered, “I may have been, yes.” Id. at 64. This testimony
evinces not only an awareness of the contents of Smith’s memo to Uzoukwu, but a hand in
formulating them. A reasonable jury could conclude from this evidence that DesJardin agreed
with the decision to refer Uzoukwu to counseling in part because of her email complaints of
discrimination. 5
A reasonable jury could also conclude that Uzoukwu has presented sufficient evidence to
rebut Defendants’ assertion that COG eliminated her position for legitimate reasons stemming
from its desire to reduce staffing levels due to the economic downturn. Defendants have
presented evidence that COG faced economic challenges, that it terminated Uzoukwu by way of
eliminating her position altogether, and that it has not replaced her. Uzoukwu responds with
evidence showing that, despite their purported need to reduce overhead, Defendants put forth no
reduction-in-force plan for the organization, and, although they reduced nine positions
5 Defendants also contend that Uzoukwu’s retaliation claim is undermined by the fact that the allegedly retaliatory actors—DesJardin and Smith—were the same people who chose to hire her in the first place. See Defs.’ Mot. Supp. Clarification & Recons. 4–5. But Defendants acknowledge that this “same actor inference” “is just that, an inference” that “cannot immunize” against liability. Id. at 5 (quoting Czekalski v. Peters, 475 F.3d 360, 369 (D.C. Cir. 2007)). In Czekalski, the D.C. Circuit explained that, while the same actor inference “is probative evidence against a claim” that the hiring official “harbored a general animus” against those of the plaintiff’s protected classification, it “cannot immunize” “from liability for subsequent discrimination, nor is it alone sufficient to keep [a] case from a jury.” 475 F.3d at 368–69 (emphasis added). Here, Uzoukwu alleges discrimination and retaliation subsequent to her hiring; she does not rely on a contention that Smith and DesJardin harbored general animus toward African-Americans or people of her ethnicity.
9 throughout the organization in 2008, they added a position to Uzoukwu’s department as part of
the reorganization. See Pl.’s Opp’n Mot. Summ. J., Ex. 15, at 47 (deposition testimony of
Robertson that the statement that Uzoukwu’s department “went from 17 and a half full-time
equivalent positions to 18 and a half full-time equivalent positions” in the reorganization was
“correct”).6 Weighing the competing evidence, a reasonable jury could conclude that
Defendants’ proffered reasons for the termination were pretext for retaliation. Accordingly, the
Court will deny Defendants’ motion for reconsideration as to this claim.
IV. Disparate Treatment Claim Against COG
Although the cat’s paw theory of liability likewise applies in the discrimination context,
see Walker v. Johnson, 798 F.3d 1085, 1095–96 (D.C. Cir. 2015) (applying the theory to
discrimination and retaliation claims arising from a termination decision), upon reconsideration,
the Court concludes that Uzoukwu has not proffered sufficient evidence to support her disparate
treatment claim. A disparate treatment claim requires demonstrating that the plaintiff “suffered
an adverse employment action”—here, termination— “because of” a protected status—here, her
ethnicity. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). In order to show that
an adverse employment action was taken “because of” a protected status, the plaintiff must
present evidence of discriminatory intent; “[p]roof of discriminatory motive is critical.” Davis v.
District of Columbia, 949 F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Anderson v. Zubieta, 180
F.3d 329, 338 (D.C. Cir. 1999)); see also id. at 7–8. Unlike with respect to the evidence offered
to support her retaliation claim, a reasonable jury could not conclude from the evidence
6 Uzoukwu characterizes this as an addition of two positions because COG began by eliminating Uzoukwu’s position, and then it added “two full-time positions” to her department. See Pl.’s Opp’n Mot. Summ. J. 34–35.
10 supporting this claim that discriminatory animus informed the termination decision such that it
was made intentionally “because of” Uzoukwu’s ethnicity.
Uzoukwu contends that DesJardin and Smith reassigned her workload to white
coworkers, that they failed to act on her complaint about overhearing the “right name, wrong
color” joke, and that Smith admonished that she lacked “white privilege” and therefore had to
“be careful because [she was] black,” and “understand [her] position because [she was] black,”
Pl.’s Opp’n Mot. Summ. J. 11 (quoting id. Ex. 4, at 116). Given that Smith did not participate in
the termination decision, his comments hold significance only to the extent that the evidence
supports an inference that they influenced those involved in the decision—DesJardin and
Robertson—or that they evinced COG’s “general atmosphere of discrimination.” Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000). Because there is no
evidence in the record that either DesJardin or Robertson was aware of Smith’s comments
concerning “white privilege,” these comments could be probative only in the latter sense.
While “statements made by ‘one who neither makes nor influences [a] challenged
personnel decision are [typically] not probative in an employment discrimination case,’” id. (first
alteration in original) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st
Cir. 1990)), “evidence of a company’s general atmosphere of discrimination ‘may be considered
along with any other evidence bearing on motive in deciding whether a . . . plaintiff has met her
burden of showing that the defendants’ reasons are pretexts,’” id. (quoting Sweeney v. Bd. of
Trustees, 604 F.2d 106, 113 (1st Cir. 1979)). And while “comments . . . concerning the
company’s treatment” of employees who share a plaintiff’s protected classification “are not
proof of discrimination[,] . . . they ‘add color to the decision-making process . . . and the reasons
given for’” the personnel action at issue. Id. at 56 (quoting Sweeney, 604 F.2d at 113). Smith’s
11 comments concerning “white privilege,” then, may be considered as probative of COG’s
“general atmosphere,” but they are not, by themselves, sufficient to substantiate Uzoukwu’s
disparate treatment claim.
The meaning underlying these comments is far from unambiguous. As the Court
suggested in its previous opinion, a jury could infer that “Smith, as an African-American, might
well have intended simply to begin a frank conversation about the challenges that non-white
employees face in the workplace.” Uzoukwu, 2015 WL 5541578, at *7. Or, a jury could infer
that Smith was articulating the view, from his high-ranking position within the organization, that
COG is generally inhospitable to African-American employees—that the organization is one in
which such employees have to “be careful” because of their race or ethnicity. But even taking
these comments in the light most favorable to Uzoukwu, they “are not proof of discrimination,”
but rather may be considered only alongside “other evidence bearing on motive.” Santiago-
Ramos, 217 F.3d at 55. And here, the only other evidence of ethnicity discrimination proffered
is that DesJardin and Smith reassigned some of Uzoukwu’s workload to white employees and
that they failed to take action in response to her complaint about a joke she found disparaging.
Without more, this evidence is insufficient to substantiate a claim that her termination was the
product of discriminatory intent on the part of DesJardin and Robertson. The Court will
therefore grant Defendants’ motion for reconsideration as to this claim.
V. Conclusion
For the foregoing reasons, Defendants’ Motion for Clarification and Reconsideration will
be granted in part and denied in part. An Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER United States District Judge Date: February 8, 2016