Watson v. Dc Water and Sewer Authority

• Court: District Court, District of Columbia
• Decided: November 15, 2018
• Docket: Civil Action No. 2016-2033
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIAN WATSON,

Plaintiff, v. Civil Action No. 16-2033 (CKK) D.C. WATER & SEWER AUTHORITY, et al.,

Defendants.

MEMORANDUM OPINION (November 15, 2018)

Plaintiff Brian Watson was not hired by Defendant, the District of Columbia Water and

Sewer Authority (“DC Water”), for an open Water Sewer Services 06 position. Plaintiff claims

that he was not hired for this position because Defendant discriminated against him due to his

African-American race and because Defendant retaliated against him for engaging in protected

activity. Plaintiff brings this lawsuit under Title VII of the Civil Rights Act of 1964, Section

1981, and the District of Columbia Human Rights Act (“DCHRA”). 42 U.S.C. § 2000e et seq.

(Title VII); 42 U.S.C. § 1981 et seq. (Section 1981); D.C. Code §§ 2-1401.01-1403.17

(DCHRA). Defendant has moved for summary judgment, and Plaintiff has opposed the motion.

Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a

whole, the Court shall GRANT Defendant’s [33] Motion for Summary Judgment. Plaintiff

1 The Court’s consideration has focused on the following documents and their attachments and/or exhibits: • Def.’s Mot. for Summary Judgment, ECF No. 33 (“Def.’s Mot.”); • Pl.’s Mem. in Opp’n to Def.’s Mot. for Summary Judgment, ECF No. 34 (“Pl.’s Opp’n”); and • Def.’s Reply in Support of Mot. for Summary Judgment, ECF No. 35 (“Def.’s Reply”).

1 failed to present evidence showing that Defendant’s legitimate, lawful reason for not hiring

Plaintiff was actually pretext for racial discrimination or retaliation. As Plaintiff did not create a

genuine dispute of material fact, Defendant is entitled to judgment as a matter of law.

I. BACKGROUND

Plaintiff, an African-American man, began working at the DC Department of Public

Works, a predecessor to DC Water, in 1985. Pl.’s Opp’n, ECF No. 34, Ex. A, 7. While working

at DC Water, Plaintiff had exemplary performance evaluations and attendance, resulting in salary

increases and an eventual promotion to the position of Plumbing Worker, reading and relocating

water meters. Id. at Ex. A, 2, 6; Id. at Ex. B, 13. After working at DC Water for approximately

fifteen years, in 2000, a new Caucasian supervisor was appointed to oversee Plaintiff. Id. at Ex.

B, 11, 12, 25. Plaintiff contends that he complained to the then-Acting Director of the

Department of Water Measurement and Billing that he was being harassed and that his

supervisor wanted to terminate him. Pl.’s Opp’n, ECF No. 34, 3. Plaintiff also sought help from

his union to transfer, but his union was unable to help him. Id. at Ex. B, 25.

In response to the alleged harassment Plaintiff faced from his new supervisor, Plaintiff

resigned on January 9, 2002. Id. at Ex. B, 38. However, the next day, Plaintiff changed his mind

and returned to work asking to rescind his resignation. Id. at Ex. B, 8. Defendant did not allow

Plaintiff to rescind his resignation, claiming that it had already processed the resignation. Id. at

Ex. B, 8-9. Plaintiff contends that he knows of at least one other employee that was allowed to

rescind his resignation without issue. Id. Plaintiff’s Separation Personnel Action Report indicated

In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 that Plaintiff had resigned, but it did not indicate whether or not he was eligible for rehire. Id. at

Ex. B, 37.

Following his resignation, Plaintiff complained of his unfair treatment to various DC

Water employees and board members and to District of Columbia Councilmembers. In these

complaints, Plaintiff requested help in getting his old job back, but he did not ask to be hired for

any specific, new positions. Id. at Ex. B, 8-9, 13-15, 17-18, 26-27, 29, 30-36. In 2013, Plaintiff

joined a class action against Defendant alleging racial discrimination. Id. at Ex. A, 44-51. The

class action settled later that year, and, in 2015, Plaintiff received a settlement as a result of his

participation in the class action. Def.’s Mot., ECF No. 33, Ex. 1, 23.

On February 6, 2015, Plaintiff wrote a letter to George Hawkins, the General Manager of

DC Water, asking for help being reinstated to his old job. Pl.’s Opp’n, ECF No. 34, Ex. B, 17.

And, on May 28, 2015, Plaintiff’s District of Columbia Councilmember wrote a similar appeal to

Mr. Hawkins on Plaintiff’s behalf. Id. at Ex. B, 19. Mr. Hawkins replied to the councilmember,

writing that “we will be happy to look into this employment prospect.” Id. at Ex. B, 20.

With this assurance from Mr. Hawkins, Plaintiff applied for an entry-level Water

Services worker vacancy at the Grade 6 level in June 2015. Id. at Ex. A, 37-38. The position

required a high school degree and one year of relevant experience. Id. at Ex. A, 30. There were

four open positions.

Defendant’s human resources department began screening qualified applicants for the job

on July 2, 2015. Id. On July 29, 2015, a recruiter, Albert Williams, emailed Plaintiff’s

application and resume to the hiring manager, Curtis Brown. For at least two months, Plaintiff’s

was the only application that Mr. Brown received. Id. at Ex. A, 63-64. However, in October

2015, a different recruiter, Giselle Richardson, forwarded the applications for an additional

3 twelve qualified applicants to Mr. Brown. Plaintiff’s name was not on the new list. Id. at Ex. A,

60-62. On October 28, 2015, Mr. Brown interviewed nine candidates from that list and

recommended five of them for the position. Id. at Ex. A, 65-68. Ultimately, DC Water offered

the job to four of the candidates and one served as an alternate. Def.’s Mot., ECF No. 33,

Declaration of Giselle Richardson, ¶ 13.

After extending the offers, one of the four candidates failed his background check and the

alternative candidate declined the offer. Id. at Declaration of Giselle Richardson, ¶ 14. With one

position remaining open, in January 2016, Defendant reposted the job opening. Id. at Declaration

of Giselle Richardson, ¶ 15. In March 2016, Ms. Richardson sent Mr. Brown a list of five

qualified candidates for the open Water Services worker position, but, again, Plaintiff’s name

was not on the list. Pl.’s Opp’n, ECF No. 34, Ex. A, 33. Mr. Brown interviewed and

recommended three candidates, one of whom ultimately was offered and accepted the job. Id. at

Ex. A, 35-36.

In June 2016, Plaintiff filed a charge of discrimination against Defendant with the Equal

Employment Opportunity Commission (“EEOC”). Plaintiff alleged that Defendant had

discriminated against him by not hiring him for the Water Services worker vacancy on account

of his race and in retaliation for his past complaints. Id. at Ex. B, 2-6. The EEOC was unable to

determine whether or not Defendant had violated any laws in its treatment of Plaintiff, and on

July 21, 2016, Plaintiff received a notice of his right to sue. Id. at Ex. B, 7. Plaintiff timely filed

suit in this Court on October 12, 2016. See generally Compl., ECF No. 1. Plaintiff initiated this

suit pro se, but as of September 29, 2017, Plaintiff has been represented by counsel. See

generally Notice of Appearance, ECF No. 24.

4 II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See

Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

5 Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

In recognition of the difficulty in uncovering clear evidence of discriminatory or

retaliatory intent, the district court should approach summary judgment in an action for

employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116

F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)

(en banc). Be that as it may, the plaintiff is not relieved of his burden to support his allegations

with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any

context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at

the summary judgment stage he bears the burden of production to designate specific facts

showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 586

(2009). Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary

judgment device—namely, “to weed out those cases insufficiently meritorious to warrant . . .

trial”—simply by way of offering conclusory allegations, speculation, and argument. Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

6 III. RACIAL DISCRIMINATION CLAIMS

A. Statutory Background

Plaintiff brings his claims for racial discrimination under three statutes: Title VII of the Civil

Rights Act, Section 1981, and the DCHRA. See generally Sec. Am. Compl., ECF No. 18. All

three statutes prohibit racial discrimination. Title VII provides in relevant part that it is unlawful

for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section

1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same

right … to make an enforce contracts … as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

Under this provision, an employer’s actions may not be based on the consideration of

impermissible factors such as race. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474-76

(2006). And, finally, the DCHRA prohibits employers from discharging or otherwise

discriminating against an individual with respect to the terms and conditions of employment due

to race. See D.C. Code §§ 2-1401.01-1403.17. Because all three statutes are analyzed using the

same standards, the Court will address together Plaintiff’s claims under Title VII, Section 1891,

and the DCHRA. Kidane v. Nw. Airlines, Inc., 41 F. Supp. 2d 12, 17 (D.D.C. 1999) (“[T]he same

standards apply in evaluating claims of discrimination and retaliation under Title VII and §

1981”); Deckwith v. Career Blazers Learning Ctr. Of Washington, D.C., 946 F. Supp. 1035, 1048

(D.D.C. 1996) (“The legal standards applicable to race discrimination are the same under the

DCHRA and § 1981.”); Ali v. D.C. Gov’t, 697 F. Supp. 2d 88, 92 n.6 (D.D.C. 2010) (explaining

that claims under Title VII and the DCHRA are analogous).

7 From Plaintiff’s Second Amended Complaint, it appears that Plaintiff argues that he faced

two adverse employment actions on account of his race: Defendant’s refusal “to consider or hire

him for positions for which he qualified” and Defendant’s placement of “a designation in his

personnel records that he was not eligible for rehire following his complaints of discrimination

during and after his employment.” Sec. Am. Compl., ECF No. 18, 4-6. But, in his opposition to

Defendant’s motion, Plaintiff refined his claim, alleging only that “Defendant DC Water

discriminated against him based on his race … when it refused to consider him for an entry-level

Water Services worker position for which he qualified.” Pl.’s Opp’n, ECF No. 34, 1. Plaintiff’s

decision to refine his racial discrimination claim to only one adverse action, Defendant’s refusal

to consider Plaintiff for the Water Services worker position, is appropriate as that is the only

action that Defendant committed within the claims period for the three statutes.

Under Title VII, claimants are required to bring an EEOC complaint within 300 days of

the adverse action. See 42 U.S.C. § 2000e-5(e)(1). Mr. Watson filed his EEOC charge on June

23, 2016, so any claims occurring more than 300 days before that date, or before August 25,

2015, are time-barred. The only action that Defendant committed involving Plaintiff after August

25, 2015, is the rejection of Plaintiff from the Water Services worker position. And, for claims

brought under Section 1981, a four-year statute of limitations applies. See Jones v. R.R. Donnelly

& Sons Co., 541 U.S. 369, 382 (2004). Mr. Watson filed his complaint in this Court on October

12, 2016, so all claims prior to October 12, 2012, are time-barred. Again, the only adverse action

committed by Defendant against Plaintiff within this time-frame is Plaintiff’s rejection from the

Water Services worker position. Finally, the DCHRA has a one-year statute of limitations starting

from the date that the plaintiff discovered or reasonably should have discovered the

discriminatory act. See D.C. Code § 2-1403.16. As Plaintiff brought his complaint on October

8 12, 2016, all claims that Plaintiff discovered or reasonably should have discovered prior to

October 12, 2015, are barred. And, again, the only adverse action occurring within this time-

frame is Defendant’s rejection of Plaintiff from the Water Services worker position.

Accordingly, the only question before the Court pertaining to Plaintiff’s racial

discrimination claim is whether or not Defendant violated Title VII of the Civil Rights Act,

Section 1981, or the DCHRA when it refused to hire Plaintiff for the Water Services worker

position.2

As mentioned above, the Court uses the same standard for assessing racial discrimination

claims under Title VII, Section 1981, and the DCHRA. Under this well-established framework, a

plaintiff must demonstrate by a preponderance of the evidence that the actions taken by the

Defendant were “more likely than not based on the consideration of impermissible factors” such

as race. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal quotation

marks and citation omitted). In so doing, “the plaintiff may prove his claim with direct evidence,

and absent direct evidence, he may indirectly prove discrimination under the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Brady v.

Livingood, 456 F. Supp. 2d 1, 6 (D.D.C. 2006), aff'd, Brady v. Office of Sergeant at Arms, 520

F.3d 490 (D.C. Cir. 2008) (internal quotation marks and citation omitted).

2 In its Motion, Defendant raised this statute of limitations argument, contending that its failure to hire Plaintiff for the Water Services worker position is Plaintiff’s only actionable claim. Def.’s Mot., ECF No. 33, 3-6. Plaintiff did not respond to this argument in its Opposition. See generally Pl.’s Opp’n, ECF No. 34. Accordingly, the Court can treat this argument as conceded by Plaintiff. Hopkins v. Women’s Div., Gen. Bd. Of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004) (“it is well understood … that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by defendant, a court may treat those arguments that plaintiff failed to address as conceded.”).

9 Direct evidence of discrimination is sufficient alone to defeat a defendant's motion for

summary judgment. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (explaining that

the McDonnell Douglas test is not used where the plaintiff presents direct evidence of

discrimination); see also Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C. Cir. 2013).

Here, however, Plaintiff proffers no direct evidence that Defendant discriminated against him on

the basis of race.

In the absence of direct evidence of discrimination based on race, the McDonnell

Douglas framework applies. Pursuant to that framework, the plaintiff has the initial burden of

proving by a preponderance of the evidence a prima facie case of discrimination. Burdine, 450

U.S. at 252-53. For a claim alleging racial discrimination with respect to employment, a plaintiff

makes out a prima facie case by showing (1) that he is a member of a protected group; (2) that he

suffered an adverse employment action; and (3) that the adverse action gives rise to an inference

of discrimination. Royall v. Nat'l Ass'n of Letter Carriers, AFL–CIO, 548 F.3d 137, 144 (D.C.

Cir. 2008). Once a plaintiff makes out a prima facie case, “the burden shifts to the defendant ‘to

articulate some legitimate, nondiscriminatory reason for the [adverse action].’” Burdine, 450

U.S. at 253 (quoting McDonnell Douglas Corp., 411 U.S. at 802). If the defendant is successful,

then the plaintiff must prove by a preponderance of the evidence that the “legitimate reasons

offered by the defendant were not its true reasons, but were pretext for discrimination.” Id.

In Brady v. Office of Sergeant at Arms, the D.C. Circuit simplified the analysis for racial

discrimination suits. 520 F.3d at 494. Under Brady, once an employer has proffered a legitimate,

nondiscriminatory reason, the McDonnell Douglas burden-shifting framework disappears, and

the court must simply determine whether the plaintiff has put forward enough evidence to defeat

the defendant's proffer of a legitimate, non-discriminatory reason and support a finding of

10 discrimination. See id. (“[W]here an employee has suffered an adverse employment action and

an employer has asserted a legitimate, non-discriminatory reason for the decision, the district

court need not—and should not —decide whether the plaintiff actually made out a prima facie

case under McDonnell Douglas.” (emphasis in original)). Ultimately, “[f]or purposes of

summary judgment, the operative question … is whether ‘the employee produced sufficient

evidence for a reasonable jury to find that ... the employer intentionally discriminated against the

employee on the basis of race.’” Ayissi–Etoh, 712 F.3d at 576 (quoting Brady, 520 F.3d at 494).

In other words, once a defendant has stated a legitimate, non-discriminatory reason for the

adverse employment action, the question “becomes whether, based on the totality of the parties'

evidence, a reasonable jury could determine that the defendant's proffered explanation was

pretext for discrimination.” Kilby-Robb v. Duncan, 77 F. Supp. 3d 164, 169 (D.D.C. 2015)

(citing Brady, 520 F.3d at 494-95).

B. Analysis

1. Defendant’s Legitimate, Non-Discriminatory Reason

Defendant argues in its motion for summary judgment that it had a legitimate,

nondiscriminatory reason for not hiring Plaintiff for the Water Services worker position—it hired

other qualified individuals with recent, relevant work experience. Defendant’s recruiter selected

qualified candidates whose applications showed recent, relevant work experience from the pool

of applicants. The recruiter sent those qualified candidates to the hiring manager, who

interviewed some of the candidates and made offers to those who expressed an understanding of

the position. Def.’s Mot., ECF No. 33, Declaration of Curtis Brown, § 12-15. “Selecting a pool

of qualified candidates based upon their written credential and then making a final selection

based upon personal interviews is an obviously reasonable method of hiring a professional

11 employee.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183-84 (D.C. Cir. 1996).

According to Defendant, Plaintiff was not refused the job because of his race, but, instead,

because other, qualified candidates were given the job.

Generally, DC Water applicants are screened by the human resources department

recruiters based on the job description, skills, and qualifications for the position. Def.’s Mot.,

ECF No. 33, Ex. 3, Deposition of Albert Williams, 8.3 Those applicants who meet the minimum

qualifications are then sent to the hiring manager who selects candidates to interview. Id. at Ex.

3, Deposition of Albert Williams, 8-9. But, there are exceptions to this general process. In

situations where there are a large number of applicants, the recruiters will not send every

qualified applicant to the hiring manager for review because to do so would be overly

burdensome. Id. at Declaration of Giselle Richardson, ¶¶ 10-11.

In this case, there were over 550 applicants for the Water Services worker position, many

of whom met the minimum qualifications. Id. at Declaration of Giselle Richardson, ¶¶ 8-9. Due

to the high number of qualified applicants for this position, neither the recruiters nor the hiring

manager had sufficient time to screen and interview all qualified applicants. Id. at Declaration of

Giselle Richardson, ¶ 11. Accordingly, only some of the many qualified applicants were

screened and forwarded to the hiring manager. Id.

On July 29, 2015, the former DC Water Manager of Recruitment, Albert Williams, sent

Plaintiff’s application and resume to the hiring manager, Mr. Brown. Id. at Ex. 3, Deposition of

Albert Williams, 13; Id. at Declaration of Curtis Brown, ¶ 10, Ex. C. As it was rare to receive

only one candidate, Mr. Brown emailed Mr. Williams asking if there were more applicants for

3 Mr. Williams’s name was misstated in his deposition transcript as “Alfred.” Def.’s Mot., ECF No. 33, Statement of Material Facts As To Which There Is No Genuine Dispute, ¶ 28 n.3. The Court has corrected this mistake.

12 the position. Id. at Declaration of Curtis Brown, ¶ 11 and Ex. C. Mr. Williams never responded,

and when another recruiter, Giselle Richardson, sent Mr. Brown the next round of twelve

qualified applicants, Plaintiff was not included. Id. at Declaration of Giselle Richardson, ¶ 12.

Ms. Richardson was not aware that Mr. Williams had previously shared Plaintiff’s application

with Mr. Brown. Id. at Declaration of Giselle Richardson, ¶ 18. Based on this new list, supplied

by Ms. Richardson, Mr. Brown interviewed nine qualified candidates with recent, relevant

experience. Id. at Declaration of Curtis Brown, ¶ 14. Ultimately the top four candidates were

recommended for hire, with one alternate. Id. at Declaration of Curtis Brown, ¶ 13. One of the

recommended candidates failed the background test and the alternate declined the position.

Accordingly, there remained one open position. Id. at Declaration of Curtis Brown, ¶ 15.

Because there was an open position, in January 2016, Ms. Richardson reposted the

position and began screening additional applicants. Id. at Declaration of Giselle Richardson, ¶

15. On January 5, 2016, Ms. Richardson sent Plaintiff an email informing him that Defendant

had received numerous qualified applicants for the position and that he was no longer being

considered. Id. at Declaration of Giselle Richardson, ¶ 16, Ex. B. And, on March 2, 2016, Ms.

Richardson sent Mr. Brown a list of five qualified candidates for the open position. Id. at

Declaration of Giselle Richardson, ¶ 17. Mr. Brown interviewed three of those candidates who

were qualified and had recent, relevant work experience and offered one candidate the position.

Id. at Declaration of Curtis Brown, ¶¶ 19-20.

2. Plaintiff’s Evidence of Pretext

Based on this chain of events, Defendant argues that it did not hire Plaintiff because it

instead chose to hire four other qualified candidates with recent, relevant work experience.

Because Defendant presented a legitimate, non-discriminatory reason for Plaintiff’s non-

13 selection, the Court proceeds to considering the ultimate question of “discrimination vel non”—

whether Plaintiff adduced sufficient evidence for a reasonable jury to conclude that Defendant’s

proffered reason is pretextual and that its real motivation for not hiring Plaintiff was

discrimination based on race. Reeves, 530 U.S. at 142-43.

Pretext may be established “directly by persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by showing that the employer's proffered

explanation is unworthy of credence.” Burdine, 450 U.S. at 256; see also Reeves, 530 U.S. at

143. “Proof that the defendant's explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional discrimination, and it may be quite

persuasive.” Reeves, 530 U.S. at 147 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517

(1993) (“[P]roving the employer's reason false becomes part of (and often considerably assists)

the greater enterprise of proving that the real reason was intentional discrimination.”)); see also

Aka, 156 F.3d at 1290 (“[A] plaintiff's discrediting of an employer's stated reason for its

employment decision is entitled to considerable weight.”). A plaintiff can also attempt to “avoid

summary judgment by presenting other evidence, direct or circumstantial, that permits an

inference of discrimination,” such as “discriminatory statements by the employer,” “other

attitudes suggesting the decision maker harbors discriminatory animus,” or other “data”

concerning the plaintiff’s protected class. Holcomb v. Powell, 433 F.3d 889, 899 (D.C. Cir.

2006).

Plaintiff presents three arguments for why Defendant’s stated reason for not hiring him is

pretextual. First, Plaintiff argues that he met the basic qualifications for the position. Second,

Plaintiff contends that Defendant deviated from its own hiring practices in not selecting Plaintiff.

Third, Plaintiff claims that Defendant’s justification for not hiring him is beyond credence. The

14 Court concludes that none Plaintiff’s arguments are sufficient to create an inference of pretext

and withstand summary judgment.

a. Plaintiff’s Qualifications

First, Plaintiff argues that Defendant’s legitimate, non-discriminatory reason for not

interviewing or hiring him is pretextual because he met the basic qualifications for the position.

Pl.’s Opp’n, ECF No. 34, 12. But, it is not enough that Plaintiff was qualified for the job. In

order to show that he should have been hired over those who were hired, Plaintiff “must show

that []he is significantly better qualified for the job than [the applicant] ultimately chosen.”

Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 25 (D.C. Cir. 2013) (emphasis in original)

(internal quotation marks and citations omitted). And Plaintiff fails to make such a showing.

The Water Services worker position for which Plaintiff applied required only that the

applicant have a high school diploma and one year of relevant work experience. Plaintiff had his

GED and had worked for DC Water for over a decade before resigning in 2002. Accordingly,

Plaintiff met the minimum qualifications for the position. But, each of the candidates that

Defendant interviewed and later hired were also qualified, and arguably better qualified than

Plaintiff.

The primary duty of the Water Services worker position for which Plaintiff applied is

making repairs in support of the operation and maintenance of the water supply system. Def.’s

Mot., ECF No. 33, Declaration of Curtis Brown, ¶ 9, Ex. B. Supporting the operation and

maintenance of the water supply system may require workers to engage in preventative

maintenance, to repair and replace mains and service lines, to assist in the operation of valves

and hydrants during pressure tests, to clear and restore work sites, to assist in traffic control

around work sites, and to maintain the equipment used on the job. Id.

15 The nine candidates that were interviewed in October 2015 were all qualified and had

recent, relevant work experience. Id. at Declaration of Curtis Brown, ¶ 14. At the time he was

interviewed, Mr. Darby was working as a plumber measuring, cutting, threading, and mounting

pipes; Mr. Dickens was working for DC Water as a laborer operating hydrants; Mr. Gaston was

working as a Utility System Operator for DC Water monitoring water system pressures; Mr.

Hughes had worked for DC Water until 2010 installing and replacing water mains and servicing

lines to homes; Mr. Jackson had worked as a plumber until 2014; Mr. Nixon was working as a

maintenance worker repairing and inspecting hydrants and assisting with the repair of broken

lines and services; Mr. Owens was working as a traffic supervisor and laborer installing

electrical pipes and had recent experience working on water mains; Mr. Stevens was working as

a utility construction worker assisting with equipment maintenance and valve inspections; and

Mr. Williams had worked until 2014 as a laborer for a company that contracted with DC Water.

Id. at Declaration of Curtis Brown, Exs. E-M.

The three applicants who were interviewed for the position in March 2016 were similarly

qualified with recent, relevant work experience. Id. at Declaration of Curtis Brown, ¶ 19. Mr.

Barr had worked until 2013 as a plumber maintaining plumbing systems and installing valves

and other equipment; Mr. Griffin had worked as a drain cleaning technician until 2011 laying

water pipe and assisting with drain clearance; and Mr. Tanner was working as a construction

laborer with experience digging ditches, backfilling excavations, placing traffic signs in work

areas, and cutting pipes. Id. at Declaration of Curtis Brown, Exs. N-P.

Compared with the candidates who received interviews, it is not apparent that Plaintiff’s

work experience was as relevant or as recent. At the time he applied for the Water Services

Worker position in 2015, Plaintiff had not worked for DC Water for approximately thirteen

16 years. Id. at Ex. 1, Deposition of Brian Watson, 27. When Plaintiff was hired by DC Water in

1985, he was hired as a laborer in charge of relocating water meters from inside houses to street

curbs. Id. at Ex. 1, Deposition of Brian Watson, 5. After approximately two years as a laborer,

Plaintiff moved to a position as a plumbing worker where he visited various residential and

commercial addresses, read water meters, processed the numbers and sent out water bills. Id. at

Ex.1, Deposition of Brian Watson, 5-6. While working with DC Water, Plaintiff only very rarely

assisted in the operation of valves and hydrants, conducted disinfection tests, worked with main

and service activations, or participated in flow tests—all tasks relevant to the Water Services

worker position. Id. at Deposition of Brian Watson, 28-29. And, outside of his work experience

with DC Water, which was approximately thirteen years old at the time Plaintiff applied,

Plaintiff had no relevant water services, construction, or plumbing experience. Id. at Deposition

of Brian Watson, 30.

Based both on the qualifications of the twelve applicants who were interviewed for the

position and on Plaintiff’s qualifications, the Court concludes that Plaintiff was, at best, similarly

qualified to the applicants who were granted an interview. “In order to justify an inference of

discrimination, the qualifications gap [between the selected applicants and the plaintiff] must be

great enough to be inherently indicative of discrimination.” Holcomb, 433 F.3d at 897.

Accordingly, where the candidates’ qualifications are relatively similar, as is true here, a

reasonable jury would not ordinarily infer discrimination from Plaintiff’s non-selection. Instead,

a reasonable jury would “assume that the employer is more capable of assessing the significance

of small differences in the qualifications of candidates, or that the employer simply made a

judgment call.” Aka, 156 F.3d at 1294. Here, the Court concludes that an inference of

discrimination is not warranted due to the fact that Plaintiff was not significantly better qualified

17 than those applicants who were selected for an interview. See Bray v. Georgetown Univ., 917 F.

Supp. 55, 60 (D.D.C. 1996) (“Nothing … requires an employer to interview all qualified

applicants who submit resumes in response to an advertised vacancy.”). Plaintiff’s qualification

for the position does not provide evidence that Defendant’s legitimate, non-discriminatory reason

for not hiring Plaintiff was pretextual.

b. Defendant’s Ordinary Hiring Practices

Second, Plaintiff argues that by not interviewing and hiring him, Defendant failed to

follow its own hiring practices, leading to an inference that Defendant’s legitimate, non-

discriminatory reason is pretextual. Pl.’s Opp’n, ECF No. 34, 12-13. Plaintiff argues that

Defendant deviated from its hiring policy by: not advancing his application to the hiring

manager, not reviewing all applications, and excluding him even though he had priority in the

review process as he had previously worked for DC Water. When an organization deviates from

its typical hiring process without explanation, the deviation “can justify an inference of

discriminatory motive.” Lathram v. Snow, 336 F.3d 1085, 1093 (D.C. Cir. 2003). But, here, any

deviation from the typical hiring process has been explained by Defendant.

First, Plaintiff faults Defendant for not forwarding his applicant to the hiring manager,

Mr. Brown, even though Plaintiff was qualified for the position. As an initial note, Plaintiff’s

application was forwarded to Mr. Brown by recruiter Mr. Williams. But, Plaintiff’s application

was not included in the list of twelve qualified applicants that another recruiter, Ms. Richardson,

sent to Mr. Brown in October 2015. And, it was again not included in the list of another five

qualified candidates which Ms. Richardson sent to Mr. Brown in March 2016. Plaintiff argues

that, because he met the minimum qualifications, Ms. Richardson was required to forward his

18 application to Mr. Brown. According to Plaintiff, only Mr. Brown, the hiring manager, had the

authority to choose among qualified candidates to narrow the interview list.

In support of his argument, Plaintiff cites to the deposition of the manager of recruitment,

Mr. Williams. According to Mr. Williams, after the applicants are screened by the recruiters,

“[t]hose candidates that meet that baseline criteria would be passed on to the hiring manager for

his or her review. He or she would then select those candidates that he or she wished to

interview.” Pl.’s Opp’n, ECF No. 34, Ex. E, Deposition of Albert Williams, 18-19. Plaintiff

understands Mr. Williams’s statement to be describing a policy that all qualified candidates be

sent to the hiring manager. According to Plaintiff, because he was qualified, Defendant violated

its own policy by excluding him from the October 2015 and the March 2016 qualified applicants

lists sent to Mr. Brown.

But, Plaintiff ignores the fact that, while it may be Defendant’s general practice to

forward all qualified applicants to the hiring manager, that general practice has caveats.

According to the declaration of Giselle Richardson, Defendant’s talent acquisition specialist,

when “DC Water receives hundreds of applications for a position, a recruiter will not send every

qualified candidate to the hiring manager for review, because to do so would be overly

burdensome.” Def.’s Mot., ECF No. 33, Declaration of Giselle Richardson, ¶ 10. DC Water

received 552 applications for the Water Services worker position, and many of those applicants

met the minimum qualifications. Id. at Declaration of Giselle Richardson, ¶¶ 8-9. Plaintiff

presents no evidence that it was Defendant’s policy to send all qualified applicants to the hiring

manager when the qualified applicants numbered in the hundreds. And, Defendant has presented

evidence that it was, in fact, not its policy to send all qualified applicants to the hiring manager

when it would be overly burdensome to do so. Id. at Declaration of Giselle Richardson, ¶¶ 10-11.

19 Accordingly, Ms. Richardson’s failure to send Plaintiff’s application to Mr. Brown does not

support an inference of pretext.

Second, Plaintiff argues that Defendant deviated from its typical hiring process by not

reviewing all applications. According to Plaintiff, it is Defendant’s hiring policy to “ensure that

all current qualified employees and individuals who apply for a job opening receive[]

consideration.” Pl.’s Mot., ECF No. 34, Ex. A, 14. But, having Plaintiff’s application “receive[]

consideration” does not equate to being offered a job, or even an interview. Moreover, the hiring

policy does not state that all qualified employees must receive consideration from the hiring

manager. And, Plaintiff presents no evidence that his application did not receive consideration

from at least someone in the hiring process. In fact, it appears that Plaintiff’s application did

receive consideration when Mr. Williams forwarded his application to Mr. Brown. Accordingly,

Plaintiff presents no evidence that Defendant violated its hiring process by failing to consider his

application. Again, this argument does not support an inference of pretext.

Finally, Plaintiff argues that Defendant deviated from its hiring practices by excluding

him from the qualified applicants lists even though he had priority in the hiring process. Plaintiff

cites to the deposition of Andre Clay, a member of Defendant’s human resources team, to

support his claim that he had priority in the hiring process. But, Mr. Clay testified that if a person

is “terminated for resigning, that person would be then given an eligibility based upon their

actual criteria … meaning that … basically it’s not an impact.” Id. at Ex. D, Deposition of Andre

Clay, 15. Mr. Clay’s statements do no support Plaintiff’s assertion that he should have been

given priority in the hiring process after resigning. Plaintiff also cites to the deposition of Mr.

Williams for support. Mr. Williams did testify that recruiters “would also look at employees who

were eligible for rehire, but were no longer with the organization … they sort of had a secondary

20 priority in the process.” Id. at Ex. E, Deposition of Albert Williams, 22. But, Mr. Williams

clarified that statement, explaining that the only employees eligible for rehire who would receive

priority consideration are those employees that were terminated due to a reduction in workforce.

Def.’s Reply, ECF No. 35, Ex. A, Deposition of Albert Williams, 4-5. Employees, such as

Plaintiff, who voluntarily terminated their position would not receive priority consideration. Id.

Considering Mr. William’s statements in full, Plaintiff has not presented evidence that he

was entitled to priority consideration in the hiring process. Accordingly, Defendant did not

violate its hiring practices by failing to give Plaintiff priority consideration. Moreover, even if

the Court were to assume that Plaintiff did have priority in the hiring process, that priority would

not necessarily entitle Plaintiff to an interview or a job. Plaintiff presents no evidence that, even

with priority consideration, his level of work experience would entitle him to an interview or job

given the relative qualifications of other, external candidates.

Plaintiff failed to produce evidence showing that Defendant was required to interview or

hire him for the Water Services worker position as part of Defendant’s usual hiring process.

Accordingly, Plaintiff cannot use this ground as evidence that Defendant’s legitimate, non-

discriminatory reason for not hiring Plaintiff is pretextual.

c. Credibility of Defendant’s Explanation

Third, Plaintiff contends that Defendant’s legitimate, non-discriminatory reason for his

non-selection is pretextual because it is beyond credence. Pl.’s Opp’n, ECF No. 34, 13-16. An

employee may demonstrate pretext by showing that the employer’s stated justification is

“unworthy of credence.” Burdine, 450 U.S. at 256. When an employer’s explanation is unworthy

of credence, “in appropriate circumstances, the tier of fact can reasonably infer from the falsity

21 of the explanation that the employer is dissembling to cover up a discriminatory purpose.”

Reeves, 530 U.S. at 147.

Here, Plaintiff presents two reasons why Defendant’s legitimate, non-discriminatory

reason is unworthy of credence. First, Plaintiff claims that Mr. Brown’s justification for ignoring

Plaintiff’s application makes no business sense. Second, Plaintiff contends that Ms. Richardson’s

justification for forgetting Plaintiff’s application is beyond credence. The Court is persuaded by

neither of Plaintiff’s arguments.

First, Plaintiff claims that Mr. Brown’s justification for ignoring Plaintiff’s application

makes no business sense. As was previously explained, Mr. Williams sent Plaintiff’s application

to Mr. Brown approximately two months before Ms. Richardson sent Mr. Brown the list of

twelve qualified applicants in October 2015. Mr. Brown did not interview Plaintiff or reject him.

Instead, Mr. Brown waited for the list of additional qualified candidates from Ms. Richardson

and interviewed nine of those candidates. Pl.’s Opp’n, ECF No. 34, Ex. C, Deposition of Curtis

Brown, 19-20. Plaintiff claims that, based on his application, Mr. Brown knew that Plaintiff was

qualified, had work experience at DC Water, and was available to start immediately. Id. at Ex. A,

63-64. According to Plaintiff, “[i]t makes no practical or business sense for Mr. Brown to delay

interviewing Plaintiff … and work understaffed when the information available to him indicated

that Plaintiff … would be able to quickly transition into the Sewer Services Worker 06 position.”

Id. at 14.

As an initial matter, Plaintiff ignores Mr. Brown’s reasonable explanation for why he did

not immediately act on Plaintiff’s application. According to Mr. Brown, “it’s rare that [the

recruiters] just send one candidate.” Id. at Ex. C, Deposition of Curtis Brown, 17. Mr. Brown did

not immediately act on Plaintiff’s application because he was expecting to receive additional

22 qualified candidates from the recruiters. Plaintiff presents no record evidence that would cause

the Court to doubt Mr. Brown’s reasonable explanation or to view it as pretext for racial

discrimination.

Additionally, Plaintiff presents no evidence that Mr. Brown was in any rush to fill the

open Water Services worker positions. It is undisputed that there were four open positions for the

Water Services worker job. Def.’s Mot., ECF No. 33, Statement of Material Facts As To Which

There Is No Genuine Dispute, ¶ 42. From this undisputed fact, Plaintiff asks the court to jump to

the conclusion that Mr. Brown unreasonably “chose to work understaffed for an entire season in

lieu of interviewing Plaintiff.” Pl.’s Opp’n, ECF No. 34, 14. But, Plaintiff cites to no record

evidence showing that Defendant was working understaffed or that Defendant required the open

Water Services Worker positions to be expeditiously filled. Brown v. Mills, 674 F. Supp. 2d 182,

188 (D.D.C. 2009) (explaining that under the summary judgment standard, the non-moving party

must support allegations with competent evidence). Absent any evidence, the Court will not

jump to the conclusion that Defendant chose to work understaffed for a season or that such a

decision would be unreasonable.

The D.C. Circuit has “consistently declined to serve as a super-personnel department that

reexamines an entity’s business decisions.” Holcomb, 433 F.3d at 897) (internal quotation marks

and citation omitted). Absent any record evidence, this Court will not conclude that Mr. Brown

made an unreasonable business decision in failing to interview and hire Plaintiff immediately

upon receiving his application. This is especially true because Mr. Brown did not interview every

qualified candidate that the recruiters sent to him. In October 2015, Ms. Richardson sent Mr.

Brown a list of twelve qualified candidates, but Mr. Brown chose to interview only nine of them.

Pl.’s Opp’n, ECF No. 32, Ex. A, 60-61, 65. Accordingly, the Court does not find Mr. Brown’s

23 explanation for failing to act immediately on Plaintiff’s application to be beyond credence or to

be evidence of pretext.

Second, Plaintiff argues that Ms. Richardson’s justification for “forgetting” Plaintiff’s

application is unreasonable. Plaintiff has three reasons for why Ms. Richardson’s justification is

beyond credence: Defendant’s General Manager had recently promised a DC Councilmember to

look into Plaintiff’s employment prospects; Defendant’s candidate tracking system offered a

simple way to track and sort candidates; and, another qualified candidate was placed on both the

October 2015 and March 2016 qualified applicants lists even though he was not interviewed in

October 2015. Pl.’s Opp’n, ECF No. 34, 15. None of these arguments support Plaintiff’s

allegation that Ms. Richardson’s explanation is beyond credence.

First, Plaintiff argues that Ms. Richardson would have remembered Plaintiff’s application

because Defendant’s General Manager, Mr. Hawkins, had recently promised a DC

Councilmember to look into Plaintiff’s job prospects. Id., at Ex. B, 19-20. But, Plaintiff provides

no evidence that Ms. Richardson had any knowledge of Mr. Hawkins’s conversation with the DC

Councilmember. In fact, Plaintiff provides no evidence that Mr. Hawkins told anyone with

responsibility for filling the Water Services worker position about his conversation with the DC

Councilmember. And, the Court will not infer such knowledge especially given that Mr.

Hawkins’s conversation with the DC Councilmember concerned Plaintiff’s employment

prospects generally and made no mention of the Water Services worker position for which

Plaintiff later applied. Absent evidence that Ms. Richardson was aware of Mr. Hawkins’s

conversation with the DC Councilmember, that conversation provides no evidence that Ms.

Richardson should have paid special attention to Plaintiff’s application.

24 Second, Plaintiff claims that Defendant’s candidate tracking system offered a simple way

to track candidates, so Ms. Richardson should not have forgotten Plaintiff’s application. But,

Plaintiff misconstrues Ms. Richardson’s statements. Ms. Richardson only claimed that she “had

no knowledge of Mr. Williams forwarding [Plaintiff’s] resume to Mr. Brown.” Def.’s Mot., ECF

No. 33, Declaration of Giselle Richardson, ¶ 18. Ms. Richardson never stated that she was

unaware of or had forgotten about Plaintiff’s application. Instead, as was explained above, due to

the high volume of applications, Ms. Richardson did not screen and send every qualified

candidate to Mr. Brown. Instead, she provided Mr. Brown with a list of some, but not all, of the

candidates who met the minimum qualifications for the Water Services worker position. Id. at

Declaration of Giselle Richardson, ¶¶ 10-12. In short, there is no record evidence to support

Plaintiff’s contention that Ms. Richardson “forgot” about Plaintiff’s application. Accordingly,

the potential usefulness of the candidate tracking system is not relevant.

Plaintiff’s third argument fails for similar reasons. Plaintiff argues that Ms. Richardson’s

justification for forgetting Plaintiff’s application is not worthy of credence because another

qualified candidate was placed on both the October 2015 and the March 2016 qualified

candidates lists even though he was not interviewed in October 2015. Pl.’s Opp’n, ECF No. 34,

Ex. A, 60-61, 33. But, again, Plaintiff provides no record evidence to support the contention that

Ms. Richardson unreasonably “forgot” about Plaintiff’s application. As was explained above, not

every qualified applicant appeared on either the October 2015 or the March 2016 lists. Instead,

because there were numerous qualified candidates, only some of the many qualified candidates

were forwarded on to Mr. Brown. Def.’s Mot., ECF No. 33, Declaration of Giselle Richardson, ¶

10. Because Ms. Richardson did not send all qualified candidates to Mr. Brown, the fact that

Plaintiff was not on the October 2015 or the March 2016 lists, even though another qualified

25 candidate was, is not evidence that Ms. Richardson unreasonably forgot about Plaintiff’s

application.

Plaintiff fails to present any record evidence that Ms. Richardson’s statements concerning

his application are unworthy of credence. Instead, Plaintiff makes conclusory allegations that

Ms. Richardson unreasonably “forgot” about Plaintiff’s application. But, without record

evidence, Plaintiff’s conclusory allegations are insufficient to show that Defendant’s legitimate,

non-discriminatory reason for not hiring Plaintiff is pretextual. See Mulhern v. Gates, 525 F.

Supp. 2d 174, 186 (D.D.C. 2007) (explaining that “self-serving, unsupported statement[s]” and

“conclusory sentences” are “insufficient to defeat a motion for summary judgment”).

The Court has now addressed each of Plaintiff’s arguments for why Defendant’s

legitimate, non-discriminatory reason is pretext for racial discrimination. But, Plaintiff has not

adduced sufficient evidence for a reasonable jury to conclude that Defendant’s proffered reason

is pretextual or that its real motivation for not hiring Plaintiff was racial discrimination. Reeves,

530 U.S. at 142–43, 120 S.Ct. 2097.

In fact, the record evidence casts serious doubt on Plaintiff’s claim that race played any

role in Defendant’s decision not to interview or hire him. For example, both the decision makers

who did not select Plaintiff and the applicants who were ultimately hired instead of Plaintiff all

share Plaintiff’s race. The two people in charge of hiring for the Water Services worker position,

Mr. Brown and Ms. Richardson, are both the same race as Plaintiff, African-American. Def.’s

Mot., ECF No. 33, Declaration of Curtis Brown, ¶ 1; Id. at Declaration of Giselle Richardson, ¶

1. When those in charge of hiring are of the same race as the plaintiff, “any claim of racial

discrimination [is] suspect.” Hardy v. Marriott Corp., 670 F. Supp. 385, 392 (D.D.C. 1987.

Additionally, the four qualified applicants ultimately hired for the Water Services worker

26 position are all African-American as well. Def.’s Mot., ECF No. 33, Ex. 4, Deposition of Curtis

Brown, 15-16; Id. at Declaration of Curtis Brown, ¶ 16. The shared race of Plaintiff and those

ultimately hired “cuts strongly against any inference of discrimination.” Murray v. Gilmore, 406

F.3d 708, 715 (D.C. Cir. 2005). While these factors are not dispositive, they further weaken

Plaintiff’s already extremely tenuous claim of racial discrimination.

Moreover, if the above were not enough to entitle Defendant to summary judgment on

Plaintiff’s claim of racial discrimination, Plaintiff presents no evidence that the relevant decision

makers even knew his race when deciding not to interview or hire him. Ms. Richardson stated

that “[p]rior to the filing of his Complaint on October 12, 2016, I was not aware of [Plaintiff’s]

race.” Def.’s Mot., ECF No. 33, Declaration of Giselle Richardson, § 19. And, Mr. Brown

explained that “[a]t no time, either before or during the hiring process, was I aware of

[Plaintiff]s’ race.” Id. at Declaration of Curtis Brown, § 22. Plaintiff provides no evidence that

would cause the Court to doubt these statements which were made under oath. “It is axiomatic

that a defendant cannot be found to have discriminated against a plaintiff on the basis of race

where the defendant had no knowledge of the plaintiff’s race.” Washington v. Chao, 577 F.

Supp. 2d 27, 40 (D.D.C. 2008); see also Jackson v. Dep’t of Justice, 2003 U.S. App. LEXIS

20014, at *2 (D.C. Cir. Sept. 29, 2003) (explaining that the plaintiff could not show

discrimination because “[t]he record … contains no evidence that the individuals who made the

hiring determinations knew of [the plaintiff’s] race”). Plaintiff provides the Court with no

argument for how Defendant could have discriminated against Plaintiff on the basis of his race

while simultaneously not knowing his race.

In summary as to Plaintiff’s racial discrimination claims, Plaintiff failed to present a

genuine dispute of material fact concerning whether Defendant improperly considered Plaintiff’s

27 race in not interviewing or hiring him for the Water Services worker position. Defendant argues

that it did not hire Plaintiff because it hired other qualified workers with recent, relevant work

experience, thus presenting a legitimate, non-discriminatory reason for the decision. Plaintiff’s

arguments that he was qualified for the job, that Defendant failed to follow its usual hiring

practices, and that Defendant’s proffered reason is unworthy of credence do not create an

inference that Defendant’s legitimate, non-discriminatory reason was pretextual. And, Plaintiff

failed to cite any other record evidence that would allow a reasonable jury to conclude that

Defendant’s true reason for not interviewing or hiring Plaintiff was his race. Accordingly,

Defendant is entitled judgement as a matter of law on Plaintiff’s racial discrimination claims.

IV. RETALIATION CLAIMS

The Court moves next to Plaintiff’s retaliation claims, again, brought under Title VII of

the Civil Rights Act, Section 1981, and the DCHRA. “Title VII prohibits federal agencies

from retaliating against employees for asserting their rights.” Holcomb v. Powell, 433 F.3d 889,

901 (D.C. Cir. 2006). Specifically, Title VII makes it unlawful for an employer “to discriminate

against [an] employee[] … because he has opposed any practice” made unlawful by Title VII,

such as racial discrimination. 42 U.S.C. § 2000e-3(a). The Supreme Court has recognized that

Section 1981, like Title VII, encompasses retaliation claims. CBOCS West, Inc. v. Humphries,

553 U.S. 442, 451 (2008). Similarly, the DCHRA makes it unlawful for an employer to retaliate

against an employee for exercising “any right granted or protected under [the DCHRA]” or

“because [an employee] has opposed any [discriminatory] practice.” D.C. Code § 2-1402.61(a)-

(b). These three statutes use the same standard for evaluating retaliation claims, and Defendant

28 does not treat the statutes separately. Accordingly, the Court will assess Plaintiff’s claims under

the three statutes together.

Evaluation of retaliation claims follows the same burden-shifting template as

discrimination claims. Holcomb, 433 F.3d at 901. First, a plaintiff must establish a prima facie

case of retaliation. A plaintiff makes a prima facie case of retaliation by showing that “(1) he

engaged in protected activity; (2) he was subjected to an adverse employment action; and (3)

there was a causal link between the protected activity and the adverse action.” Hamilton v.

Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (internal quotation marks and citation omitted)

(Title VII); Fox v. Giaccia, 424 F. Supp. 2d 1, 9 (D.D.C. 2006) (using the same test for the

DCHRA); Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (using the

same test for Section 1981).

After a plaintiff has established a prima facie case of retaliation, the defendant must offer

a lawful, non-retaliatory explanation for the employment action. Where “the employer has

proffered a non-retaliatory explanation for a materially adverse employment action, the

sufficiency of the plaintiff’s prima facie case is no longer in issue, and ‘the only question is

whether the employee’s evidence creates a material dispute on the ultimate issue of retaliation.’”

McGrath v. Clinton, 666 F.3d 1377, 1380 n.3 (D.C. Cir. 2012) (quoting Jones v. Bernanke, 557

F.3d 670, 678 (D.C. Cir. 2009)).

In this case, the only adverse action before the Court is Plaintiff’s non-selection for the

Water Services worker position. See Supra Sec. III.A. Defendant has proffered a legitimate, non-

retaliatory reason for not selecting Plaintiff—Defendant hired other, qualified applicants with

recent, relevant work experience. And, the Court concludes that Plaintiff has failed to rebut this

proffered reason or to establish any inference of retaliation.

29 B. Analysis

Plaintiff presents two incidents of allegedly protected activity for which he argues he was

wrongfully retaliated against. First, Plaintiff claims that Defendant retaliated against him because

he complained that he had been unfairly treated and harassed by his supervisor leading to his

resignation from DC Water in 2002. Second, Plaintiff claims that Defendant retaliated against

him based on his participation in a 2013 class action against DC Water alleging racial

discrimination. Defendant, again, asserts that it had a legitimate, non-retaliatory reason for not

hiring Plaintiff—Defendant hired other qualified applicants with recent, relevant work

experience. Plaintiff fails to present record evidence which would allow a reasonable jury to

conclude that Defendant’s proffered reason was pretext for retaliation.

First, Plaintiff argues that Defendant did not interview or hire him for the Water Services

worker position in retaliation for Plaintiff’s complaints about unfair treatment and harassment

that occurred while working at DC Water. Pl.’s Opp’n, ECF No. 34, 10. Plaintiff cites many

instances in the record where he complained about “unfair treatment” by his supervisor. But,

simply complaining about “unfair treatment” is not a protected activity. In order for an activity to

be “protected,” the employer must be aware that that the employee is complaining of treatment

that is unlawful and discriminatory. See Mazloum v. District of Columbia, 442 F. Supp. 2d 1, 12

(D.D.C. 2006). “While no ‘magic words’ are required, the complaint must in some way allege

unlawful discrimination, not just frustrated ambition.” Broderick v. Donaldson, 437 F.3d 1226,

1232 (D.C. Cir. 2006). None of Plaintiff’s purported complaints allege racial discrimination in

violation of Title VII, Section 1981, or the DCHRA. Accordingly, his complaints do not rise to

the level of protected activity.

30 Prior to his resignation, Plaintiff claims that he complained to the then-Acting Director of

the Department of Water Measurement and Billing that his Caucasian supervisor was harassing

him and subjecting him to unfair allegations. But, Plaintiff cites to no record evidence that would

support this allegation.4 And, DC Water has no record of any race discrimination complaints

made by Plaintiff during his employment. Def.’s Mot., ECF No. 33, Declaration of Roger Brown

Jr., ¶ 15. Plaintiff’s conclusory statement that he made such a complaint to the then-Acting

Director of the Department of Water Measurement and Billing is insufficient to withstand a

motion for summary judgment. See Mulhern v. Gates, 525 F. Supp. 2d 174, 186 (D.D.C. 2007)

(requiring the non-moving party to submit some affirmative evidence in support of his

allegations). But, even if the Court were to assume that Plaintiff made such a complaint, this

complaint would not rise to the level of protected activity. Plaintiff alleges only that he

complained about harassment and unfair treatment, not that he complained about racial

discrimination, or some other matter protected by anti-discrimination laws. See Logan v. Dep’t of

Veteran Affairs, 404 F. Supp. 2d 72, 77 (D.D.C. 2005) (explaining that the plaintiff’s written

complaint was not protected activity because it did “not include a claim of discrimination based

upon race”).

Plaintiff also claims that he continued complaining about his unfair treatment after he

resigned from his job. But, the only evidence of these complaints to which Plaintiff cites are

various letters to DC Water employees and DC Councilmembers complaining about unfair

treatment and asking for his job back. Pl.’s Opp’n, ECF No. 34, Ex. B, 8-9 (“We had heard that

4 Plaintiff cites to a letter his former attorney wrote to DC Water and to an undated, out-of- context, written statement by Plaintiff. Neither of these documents contain mention of any complaint to any DC Water employee prior to Defendant’s resignation. Pl.’s Opp’n, ECF No. 34, Ex. A, 42-43.

31 [DC Water] wanted to get rid of most of its meter readers; the actions of my supervisors seemed

to confirm this rumor.”), 13-15 (“I was subjected to discipline and negative performance

evaluations based on false and inaccurate information.”), 17-22(“I am writing again in the hope

of receiving your support in my ongoing quest to rescind my job resignation that I submitted due

to unjust pressure.”), 26-28 (“Claimant resigned because of numerous attacks on his ability.”), 29

(“My job performance was unfairly criticized, and I was told that they wanted to get rid of me.”),

30-36 (“The meter readers at [DC Water] came under new supervision, and our new supervisors

seemed more interested in building a record to get rid of us than to ensure that the meters were

read accurately and efficiently.”). These communications all complain that Plaintiff was treated

unfairly and request that he be given back his job. But, the communications, again, do not rise to

the level of protected activity as they to not allege that Plaintiff had been unlawfully

discriminated against on the basis of race or any other protected status.

While not cited as support by Plaintiff, Plaintiff’s deposition mentions other letters that

he claims to have sent to DC Water employees after he resigned. Def.’s Mot., ECF No. 33, Ex.1,

Deposition of Brian Watson, 15. These letters are not in the record. When asked if the letters

indicated that he felt like he was being discriminated against because of his race, Plaintiff

replied, “I don’t know if I started off with race because, even though he wasn’t African

American, I may have put race but I maybe made emphasis to him and his name … I mean,

didn’t say he’s a white man or something like that.” Id. These statements show that even Plaintiff

is not certain whether or not he complained of racial discrimination. Plaintiff’s equipoise

statement does not create a genuine dispute of material fact as to whether or not Plaintiff

complained to Defendant about racial discrimination.

32 In order to receive protection from retaliation, Plaintiff must have engaged in conduct

opposing an employment practice made unlawful by the statute under which he filed his claim of

retaliation. See Broderick, 437 F.3d at 1232. And, none of Plaintiff’s communications, for which

he claims he was retaliated against, so much as mention race or discrimination. Because Plaintiff

never complained that he was unfairly treated or harassed because of his race or some other

protected class, Plaintiff cannot claim protection under the anti-retaliation statutes.

In addition to failing to prove that he engaged in any protected activity through his

various complaints, Plaintiff also fails to show a causal connection between his complaints and

the alleged retaliatory act. Under Title VII, the causal link between the protected activity and the

adverse employment action requires “proof that the desire to retaliate was the but-for cause of

the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352

(2013). But, under Section 1981 and the DCHRA, the plaintiff need only prove that retaliation

was a “motivating factor.” Jones v. D.C. Water & Sewer Auth., 2016 U.S. Dis. LEXIS 19455, at

*19-20 (D.D.C. Feb. 18, 2016). However, this distinction is irrelevant as Plaintiff fails to meet

even the lesser “motivating factor” standard.

Plaintiff presents no evidence that Mr. Brown or Ms. Richardson, the relevant decision

makers, had any knowledge of Plaintiff’s complaints. Because there is no evidence that the

relevant decision makers had knowledge of Plaintiff’s complaints, and Plaintiff points to no other

evidence which would support an inference of a causal relation, it “simply defies logic to charge

[Defendant] with acting in retaliation for an action of which the [relevant decision makers were]

not, in fact, made aware.” Howard Univ. v. Green, 652 A.2d 41, 46 (D.C. 1994).

Accordingly, even if Plaintiff’s generalized complaints of unfair treatment and

harassment constituted protected activity, which the Court finds that they do not, Plaintiff fails to

33 establish a causal connection between his complaints and Defendant’s decision not to interview

or hire him. Accordingly, Plaintiff has not introduced evidence which would allow a reasonable

jury to conclude that Defendant’s legitimate, non-retaliatory reason was actually pretext for

retaliating against Plaintiff due to his various complaints.

Besides the generalized complaints discussed above, Plaintiff asserts another protected

activity for which he alleges he was retaliated against—his participation in a 2013 class action

lawsuit against DC Water alleging racial discrimination. Pl.’s Opp’n, ECF No. 34, 10. Plaintiff’s

participation in a lawsuit alleging racial discrimination is a protected activity under the anti-

retaliation laws. But, Plaintiff fails to provide evidence to suggest that his participation in the

class action played any part in Defendant’s decision not to hire him.

Neither of the relevant decision makers in charge of hiring for the Water Services worker

position was aware that Plaintiff had participated in the class action against DC Water. Mr.

Brown explained that, “[a]t no time, either before or during the hiring process, was I aware …

that [Plaintiff] was among the class membership in the … Class Action.” Def.’s Mot., ECF No.

33, Declaration of Curtis Brown, ¶ 22. Similarly, Ms. Richardson stated that, “[p]rior to the filing

of his Complaint on October 12, 2016, I was not aware that Mr. Watson participated as a class

member in the class action lawsuit.” Id. at Declaration of Giselle Richardson, ¶ 20. Plaintiff

provides no evidence that would cause the Court to doubt these two sworn statements. And, if the

relevant decision makers were not aware that Plaintiff participated in the class action, they could

not have been motivated by Plaintiff’s participation in the protected activity when deciding not to

interview or hire him. See Green, 652 A.2d at 46.

But, even if the relevant decision makers did not have knowledge of Plaintiff’s protected

activity, the Court can impute a causal connection if there was institutional knowledge and the

34 adverse personnel action took place shortly after Plaintiff engaged in the protected activity.

Holcomb, 433 F.3d at 903. Here, the class action in which Plaintiff participated settled in 2013,

more than a year before Plaintiff’s non-selection. Def.’s Mot., ECF No. 33, Declaration of

Jennifer Harper, ¶ 4. While Plaintiff may have received his settlement in 2015, closer to the time

of his non-selection, the settlement funds were distributed through a claims administrator in

Florida, not by DC Water. Id. Declaration of Jennifer Harper, ¶ 8. Accordingly, the temporal

proximity between Plaintiff’s protected activity and Defendant’s adverse employment action is

not sufficiently close to infer a causal relationship. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.

268, 273 (2001) (explaining that the temporal proximity to support an inference of causation

must be “very close,” meaning less than three or four months).

Regardless, it is not clear that temporal proximity alone could support an inference of

causation in this case. When the D.C. Circuit explained that a causal relationship may be inferred

when there is institutional knowledge and the employer’s adverse action took place shortly after

the employee engaged in the protected activity, the court was referring to the requirements for a

prima facie showing of retaliation. Holcomb, 433 F.3d at 903. The court explicitly declined to

address whether proximity alone would suffice once the defendant provided a legitimate, non-

retaliatory reason for the adverse action. Id. at 903-904.

In this case, the Court is no longer concerned with Plaintiff’s prima facie showing of

retaliation as Defendant has supplied a legitimate, non-retaliatory reason for the adverse action.

And the D.C. Circuit has held that “positive evidence beyond mere proximity is required to

defeat the presumption that the [defendant’s] proffered explanations are genuine.” Woodruff v.

Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). Plaintiff has provided no such positive evidence.

35 Accordingly, Plaintiff has not shown that Defendant’s legitimate, non-retaliatory reason for not

hiring him was really pretext for retaliation based on Plaintiff’s participation in the class action.

In evaluating Plaintiff’s retaliation claims, the Court has also considered Plaintiff’s

arguments as to why Defendant’s proffered reason is pretext which were discussed in the section

on racial discrimination. The Court is no more persuaded by Plaintiff’s arguments for pretext in

the retaliation context than it was in the racial discrimination context. For the reasons discussed

in the prior section, Plaintiff’s arguments that he was qualified for the position, that Defendant

failed to follow its own hiring practices, and that Defendant’s proffered reason is unworthy of

credence fail to show that Defendant’s legitimate, non-retaliatory reason for not hiring Plaintiff is

pretextual. See Supra Sec. III.B.2.

In summary as to Plaintiff’s retaliation claims, Defendant has presented a legitimate, non-

retaliatory reason for not hiring Plaintiff—Defendant hired other qualified workers with recent,

relevant work experience. Plaintiff has failed to create a genuine dispute as to whether

Defendant’s proffered reason is pretext. Plaintiff’s generalized complaints of unfairness, with no

mention of discrimination or race, do not constitute protected activity. And, even if they did,

Plaintiff has presented no evidence showing that these generalized complaints are causally

connected to Defendant’s decision not to interview or hire Plaintiff. Additionally, while

Plaintiff’s participation in a class action alleging racial discrimination constitutes protected

activity, Plaintiff has presented no evidence connecting this protected activity to Defendant’s

decision not to interview or hire him. Accordingly, Plaintiff has not shown that Defendant’s

legitimate, non-retaliatory reason is pretext or created an inference of retaliation. Defendant is

entitled to judgment as a matter of law as to Plaintiff’s claims of retaliation.

36 V. CONCLUSION

For the reasons discussed above, the Court shall GRANT Defendant’s motion for

summary judgment. Plaintiff has not presented a genuine dispute of material fact as to whether

Defendant discriminated against him on account of his race or as to whether Defendant retaliated

against him for engaging in protected activity. Accordingly, Defendant is entitled to judgment as

a matter of law. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge