Once the defendant articulates a "legitimate,
nondiscriminatory reason" for the adverse action, the plaintiff
must then have an opportunity to prove by a preponderance of the
evidence that the defendant's stated reasons are a pretext for
discrimination or retaliation. See McDonnell Douglas, 411 U.S.
at 802, 93 S.Ct. 1817. "That is, the plaintiff may attempt to
establish that he was the victim of intentional discrimination
`by showing that the employer's proffered explanation is
unworthy of credence'" and that the plaintiff's membership in a
protected class was the true reason for the employment action.
See Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (quoting
Burdine, 450 U.S. at 256, 101 S.Ct. 1089); see also Aka, 156
F.3d at 1290; Mungin v. Katten Muchin & Zavis, 116 F.3d 1549,
1554 (D.C.Cir. 1997).
Both the Supreme Court and the D.C. Circuit have held that the
burden-shifting scheme becomes irrelevant once both parties have
met the burdens discussed above. See Reeves, 530 U.S. at 143,
120 S.Ct. 2097; Aka, 156 F.3d at 1289. At that point, the
relevant inquiry is whether there is sufficient evidence from
which a reasonable trier of fact could find in favor of the
plaintiff, although the "trier of fact may still consider the
evidence establishing the plaintiffs prima facie case and
inferences properly drawn therefrom . . . on the issue of
whether the defendant's explanation is pretextual." See
Reeves, 120 S.Ct. at 2106 (citing Burdine, 450 U.S. at 255 n.
10, 101 S.Ct. 1089); see also Aka, 156 F.3d at 1290; Mungin,
116 F.3d at 1554. In Aka, the D.C. Circuit found that the
plaintiff had presented no evidence directly suggesting
discrimination, but instead presented evidence that the
defendant's proffered justification was false. The Aka court
ruled that simply casting doubt on the employer's proffered
justification did not automatically enable the plaintiff to
survive summary judgment. See Aka, 156 F.3d at 1290-91.
Rather, the plaintiff must proffer evidence beyond mere
speculations and allegations when refuting the defendant's
legitimate, non-discriminatory reasons for its decisions. See
Brown v. Brody, 199 F.3d 446, 458 (D.C.Cir. 1999). "`As courts
are not free to second-guess an employer's business judgment,' a
plaintiffs mere speculations are `insufficient to create a
genuine issue of fact regarding [an employer's] articulated
reasons for [its decisions] and avoid summary judgment.'" Id.
at 459 (quoting Branson v. Price River Coal Co., 853 F.2d 768,
772 (10th Cir. 1988)).
2. Prima Facie Case of Discrimination and Retaliation
Under the McDonnell Douglas framework, the plaintiff bears
the initial burden of establishing a prima facie case of
discrimination. Thus, Mr. Laboy must demonstrate: (1) that he is
a member of a protected class; (2) that he suffered an adverse
employment action; and (3) that the unfavorable action gives
rise to an inference of discrimination. See Brown v. Brody,
199 F.3d 446, 452 (D.C.Cir. 1999). The elements of a Title VII
retaliation claim differ slightly. A plaintiff must establish:
(1) participation in protected activity known to the defendant;
(2) an employment action disadvantaging the person engaged in
the protected activity; and (3) a causal connection between the
protected activity and the adverse employment decision. See
Carter v. Pena, 14 F. Supp.2d 1, 9 (D.C. 1997), aff'd, 1998 WL
315616 (D.C.Cir. 1998).
The plaintiff easily satisfies the first two elements of a
prima-facie case of discrimination and retaliation. Mr. Laboy is
a member of a protected class (Hispanic), he participated in a
protected activity (filed EEO claims), and he suffered an
adverse employment action (termination). By
contrast, the plaintiff does not satisfy the third element of
either of his claims and thus cannot make a prima-facie case of
discrimination or retaliation.
a. The Plaintiff Has Failed to Establish a Prima-Facie Case
The plaintiff may satisfy the third element of a prima facie
case of discrimination by showing that the adverse employment
action gives rise to an inference of discrimination. See
Brown, 199 F.3d at 452. A reasonable inference of
discrimination arises if a plaintiff can show that other
similarly situated employees, not members of his protected
class, did not suffer similar adverse actions. See Mack v.
Strauss, 134 F. Supp.2d 103, 114 (D.C. 2001). "[T]o make such a
comparison, plaintiff must show that the individuals with whom
he seeks to compare his treatment `have dealt with the same
supervisor, have been subject to the same standards and have
engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or
the employer's treatment of them for it.'" Id. (quoting
Phillips v. Holladay Property Servs., Inc., 937 F. Supp. 32, 37
(D.C. 1996), aff'd without op., 1997 WL 411695, 1997 U.S.App.
LEXIS 19033 (D.C.Cir. 1999)).
As suggested by the conduct of the defendant, the plaintiff
and Officer Smith, the plaintiffs partner, are similarly
situated. Indeed, Officer Smith and the plaintiff are almost
identically situated. The only relevant difference between the
two is that the plaintiff is Hispanic and Officer Smith is
African-American. The plaintiff attempts to distinguish himself
from Officer Smith by claiming that BEP investigators targeted
the plaintiff throughout the investigation. For example, the
plaintiff claims that because Inspector Oglesby warned Officer
Smith to "take care of himself and his family first," he was
somehow pressuring Officer Smith to change "his recollection of
the events [so that] BEP could have more easily justified
punishing Laboy." See Opp'n. at 28. This characterization of
Inspector Oglesby's comment distorts the record. As the
defendant correctly points out, the plaintiffs proposition that
"some inference of either discrimination or retaliation can be
made because Inspector Oglesby, allegedly, did not put enough
`pressure' on the plaintiff to tell the truth" is absurd. See
Reply at 21 n. 23 (internal citations omitted).
The plaintiff also alleges that his termination is
inconsistent with BEP's discipline of other officers charged
with misconduct involving dishonesty. See Opp'n at 31. The
plaintiff provides several examples of BEP officers who have
received different punishments for their dishonest behavior.
See id. at 31-32. Not only are the plaintiffs examples
distinguishable from his situation, but none involve lying under
oath in an official investigation. Cf. Holbrook v. Reno,
196 F.3d 255, 261 (D.C.Cir. 1999) (concluding that a comparable
employee was not similarly situated because "he was accused of
`misconduct of a type that does not involve honesty and
forthrightness, which is what [the plaintiffs] case was
about'"). Furthermore, the record indicates that BEP has either
terminated or required employees to resign if they lied to
investigators. See Opp'n at 32.
Finally, there is no evidence that the plaintiff was treated
any differently than other BEP employees with regard to his
pre-termination activity. For example, the plaintiff alleges
that BEP discriminatorily rejected his medical shaving profile
and issued a "racially motivated" AWOL charge for his refusal to
work overtime hours. See id. at 7. The plaintiff fails to
provide any concrete evidence of
discriminatory motive. Indeed, the plaintiffs own union
representative found no indication that BEP management was
treating the plaintiff any differently than his peers. See Lee
Decl. ¶ 3. Because the plaintiff cannot point to another
similarly situated employee, not in his protected class, who was
treated differently than him, he cannot establish a prima-facie
case of discrimination.
b. The Plaintiff Has Failed to Establish a Prima-Facie Case
The third element of a prima-facie case of retaliation
requires the plaintiff to establish a causal connection between
the protected activity and the adverse employment decision. See
Carter v. Pena, 14 F. Supp.2d 1, 9 (D.C. 1997). This "may be
established by showing that the employer had knowledge of the
employee's protected activity, and that the adverse personnel
action took place shortly after that activity." Id. at 9.
Here, the plaintiff makes no showing "that any of those capable
of making employment decisions had knowledge of these charges,"
and thus he fails to establish a prima-facie case of
retaliation. See id.; see also Holbrook, 196 F.3d at 264.
Although Chief Stephens was the deciding official regarding
the plaintiffs termination, see Reply at 2, the plaintiff
offers no concrete evidence that Chief Stephens was ever aware
of his EEO activity. Instead, the plaintiff mischaracterizes
statements made by Chief Stephens at his deposition. For
example, the plaintiff alleges that Chief Stephens "testified at
his deposition that he required his supervisors to notify him
if any employee raised allegations of bias." Opp'n at 8. This
statement, if true, could have created a material issue of fact.
What Chief Stephens actually said, however, was that he would
want his supervisors to notify him. See Stephens Dep. at 58.
Consequently, there is no indication that Chief Stephens was
aware of the plaintiffs EEO activity. Absent such evidence, the
plaintiff cannot establish the causation element of a
prima-facie case of retaliation.
3. Lying under oath is a legitimate and non-discriminatory
reason for the plaintiffs termination
Even assuming arguendo that the plaintiff had established a
prima-facie case of discrimination and retaliation, the
defendant still would have to meet its burden of providing a
legitimate, non-discriminatory explanation for the plaintiff's