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WATERHOUSE v. DISTRICT OF COLUMBIA

December 13, 2000

ELLEN WATERHOUSE, PLAINTIFF,
V.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Plaintiff, a white female, was employed as the Chief Financial Officer ("CFO") of the District of Columbia Government's Department of Administrative Services ("DAS") from February 1997 through January 1998. She was terminated by the District of Columbia, Office of the Chief Financial Officer ("CFO"), on January 16, 1998. Plaintiff has filed suit against the District of Columbia and Mayor Anthony Williams, who was at the time the Chief Financial Officer ("CFO") of the District of Columbia, alleging disparate treatment, discriminatory discharge and a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Defendants have moved for summary judgment on the grounds that plaintiff has failed to present sufficient facts to permit a reasonable jury to conclude that plaintiff was the victim of race discrimination or subjected to a racially hostile work environment. As explained more fully below, the Court concludes that defendants' motion should be granted.

BACKGROUND

The function of DAS is to provide procurement and accounts payable services to other District agencies with respect to facility leasing, security, custodial services, utility and telecommunications services. Plaintiff, as CFO, was responsible for supervising the day-to-day activities of the DAS Financial Office, including management of the general ledger through the accounts receivable and accounts payable functions. Additionally, plaintiff was responsible for developing and implementing a strategic operating plan for addressing the longstanding financial problems of the agency, overseeing the preparation of the annual budget for DAS, and managing year-end closing activities for DAS accounts.

As discussed more extensively below, soon after plaintiff was hired, defendants developed serious concerns regarding her performance. In particular, defendants perceived deficiencies in plaintiff's ability to build a financial team, to submit required reports to her supervisors, to pay outside vendors in a timely fashion, and to complete the FY 1999 budget submission and the FY 1997 closing process.

As a result, Dong and Triggs recommended to Williams that plaintiff be terminated. Cabbell requested that the termination be delayed until January so as not to compromise the audit. Williams accepted both recommendations. On January 16, 1998, Triggs informed plaintiff that she would be terminated for her inadequate performance unless she voluntarily resigned or accepted a revenue accountant position in the Office of Tax and Revenue. Plaintiff rejected both alternatives and was terminated effective January 16, 1998.

Plaintiff filed an EEOC discrimination complaint, was subsequently issued a right to sue letter, and filed this suit on February 3, 1999. In Count I, plaintiff contends that she suffered disparate treatment on the basis of her race in that she was discriminatorily discharged and was given less time, resources, and support to carry out her responsibilities than was provided to her African-American counterparts. In Count II, plaintiff claims, based on the same factual allegations that underlie Count I, that she was subject to a hostile working environment on account of her race.

The question raised by this summary judgment motion is whether defendants violated plaintiff's rights by subjecting her to disparate treatment and by discharging her because of her race. Since plaintiff has not opposed defendants' motion with respect to Count II, which alleges a hostile work environment, the Court finds that the motion is conceded as to that count.*fn1 With respect to Count I, the issue is whether plaintiff's termination was a result of discrimination, i.e. whether defendants' criticisms of her performance were false or pretextual and whether she was treated less favorably than similarly situated African Americans. In deciding this issue, the Court need not decide whether plaintiff was qualified for the position of CFO of DAS or whether plaintiff had strengths or successes in her position.*fn2 Rather, the Court need only decide whether plaintiff has raised an issue of fact regarding the legitimacy of defendants' reasons for termination.

LEGAL ANALYSIS

I. Summary Judgment Standard

Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be. drawn in his favor." Id. at 255, 106 S.Ct. 2505; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir. 1989).

The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). "While summary judgment must be approached with special caution in discrimination cases a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, 1998 WL 164780 at *3 (D.D.C. March 31, 1998), aff'd, 1999 WL 825425 (D.C.Cir. Sept. 27, 1999) (citation omitted). In addition, Local Civil Rule 7.1(h) provides that "[a]n opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the part of the record relied on to support the statement."

Despite these principles of law and the requirements of the local rules, plaintiff has filed an affidavit entitled "Verified Statement of Material Facts as to Which the Plaintiff Contends There Exists a Genuine Dispute," in which there are many assertions as to which she has no firsthand knowledge. The affidavit is also deficient insofar as reference is made to alleged facts for which no record citation is provided or a deposition is cited without any specific page references.*fn3 The burden is on the parties, not on the court, to "identify the pertinent parts of the record, to isolate the facts that are deemed to be material, and to distinguish those facts which are disputed from those that are undisputed." Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir. 1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153 (D.C.Cir. 1996) (noting the burden is on counsel, not the court, to "winnow the wheat from the chaff").

Plaintiff's verified statement also fails to dispute many of the facts set forth by defendants concerning plaintiff's alleged failure to perform her work satisfactorily.*fn4 Under Rule 7.1(h), "the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." Moreover, as discussed below, plaintiff's self-serving statements as to her competence or her superior performance do not serve to raise material issues of fact regarding defendants' ...


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