either Ms. Reinckens or Mr. Newsome "mentioned that we thought Eve would
be litigious." Id.
Ms. Reinckens testified that her second meeting with staff regarding
Ms. Ferguson's possible termination included Alan Ullberg, Marilyn Slomba
and Connie Royal. Reinckens Dep. at 103-04. However, Ms. Royal and Ms.
Somba both deny participating in any such discussion. See Royal Dep. at
25-27; Slomba Dep. at 11-12. Mr. Neslen also does not recall being
consulted about Ms. Ferguson's possible termination.
Ms. Reinckens also testified that she consulted with Mr. Hicks prior to
firing Ms. Ferguson. Reinckens Dep. at 104. However, Mr. Hicks was on
vacation in Mexico during early August, and he testified that he did not
recall being consulted or notified by Reinckens or Newsome regarding the
possibility of Ms. Ferguson's termination. Hicks Dep. at 23-32, 82-83.
Furthermore, Mr. Hicks testified that he had no intention of terminating
Ms. Ferguson despite the attendance problems that he had documented, nor
had he discussed the possibility of such action with plaintiff. Hicks
Dep. at 130-31, 109-11.
On Tuesday, August 8, 1995, Ms. Ferguson received a memorandum from
Ms. Reinckens terminating her employment. Def.'s Mot., Ex. P. The
memorandum states: "It is my decision to separate you during your trial
period because of your poor attendance. Your separation will be effective
at the close of business August 11, 1995." Id.
Later, Ms. Reinckens told an EEO investigator that Ferguson was fired:
". . . because she did not come to work and did not provide medical
documentation as to why she was not at work. We asked for documentation
but did not get it. . . ." ROI. The affidavit provided to the EEO
investigator failed to mention any problems with tardiness as the cause
of Ms. Ferguson's termination. At deposition, Ms. Reinckens testified
that Ms. Ferguson was fired for "poor attendance," and, specifically, a
"pattern of coming late, leaving early." Reinckens Dep. at 75. She averred
that Ms. Ferguson's attendance problems "created an atmosphere of
distrust and concern." Id. at 76. She further stated that "medical leave
was not the issue" in Ms. Ferguson's termination. Id. at 70; see also
id. at 127.
A. Legal Standard for Summary Judgment
Summary judgment is granted pursuant to Fed. R. Civ. P. 56 only when
there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548 (1986). The Court views the evidence in
the light most favorable to the nonmoving party, according that party the
benefit of all reasonable inferences. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1086). Thus, in ruling on a
motion for summary judgment, the Court will grant summary judgment only
if one of the moving parties is entitled to judgment as a matter of law
upon material facts that are not in dispute.
B. The McDonnell Douglas Framework
The allocation of burdens of proof in a Rehabilitation Act retaliation
case follows the general rules enunciated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817
(1973). See McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000). To
establish a prima facie case for
retaliation, a plaintiff must show that
(1) the plaintiff was engaged in a protected activity, (2) the employer
was aware of the activity; (3) the plaintiff suffered an adverse
employment action; and (4) there was a causal connection between the
protected activity and the adverse employment action. McDonnell Douglas,
411 U.S. at 802; see also Jones v. Washington Metro. Area Transit,
205 F.3d 428, 433 (2000)
The Supreme Court has stated that the burden on the plaintiff of
establishing the prima facie case is "not onerous." Texas Dep't of Comm.
Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089 (1981). In meeting
her ultimate burden, plaintiff may rely on a combination of "three
possible sources of evidence": "(1) evidence she used to establish her
prima facie case; (2) evidence that the defendants' proffered explanation
for her termination was false; and (3) any additional evidence of
discriminatory motive." Waterhouse v. District of Columbia, 298 F.3d 989,
993 (D.C. Cir. 2002).
Once plaintiff has established a prima facie case of retaliation, a
presumption is created that the employer unlawfully discriminated against
the employee. Burdine, 450 U.S. at 254. The burden then shifts to the
employer to articulate, with clarity and reasonable specificity, a
legitimate, nondiscriminatory reasons for the retaliatory employment
actions suffered by the plaintiff. Id.; St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 510-11, 113 S.Ct. 2742 (1993). The employer must introduce
evidence that presents reasons for its actions, which would support a
finding that the unlawful discrimination was not the cause of the
employment action. Burdine, 450 U.S. at 254-255. If the defendant
satisfies the burden of production, the presumption of discrimination
raised by the prima facie case is rebutted. Id. at 255. The burden then
shifts back to the plaintiff to show that the proffered reasons are
pretextual and that unlawful discrimination was the real reason for the
action. McDonnell Douglas, 411 U.S. at 802-05; St Mary's Honor Ctr., 509
U.S. at 508.
Once both parties have met their burdens under the McDonnell Douglas
burden-shifting scheme, the scheme becomes irrelevant. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097
(2000); Aka v. Washington Hospital Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998) (en banc). Rather, the relevant inquiry is whether there is
sufficient evidence from which a reasonable fact finder could find in
favor of the plaintiff, although "the trier of fact may still consider
the evidence establishing the plaintiff's prima facie case and inferences
properly drawn therefrom . . . on the issue of whether the defendant's
explanation is pretextual." Reeves, 503 U.S. at 143 (quoting Burdine, 450
U.S. at 255 n. 10); see also Aka, 156 F.3d at 1290.
In considering a motion for summary judgment, the Court's analysis
whether the jury could infer discrimination from the
combination of (1) the plaintiff's prima facie case;
(2) any evidence the plaintiff presents to attack the
employer's proffered explanation for its actions; and
(3) any further evidence of discrimination that may be
available to the plaintiff (such as independent
evidence of discriminatory statements or attitudes on
the part of the employer) or any contrary evidence that
may be available to the employer (such as evidence of a
strong track record in equal opportunity employment)