United States District Court, D. Columbia
September 26, 2005.
TEKLE TSEHAYE, Plaintiff,
WILLIAM C. SMITH & CO., INC., Defendant.
The opinion of the court was delivered by: JOHN BATES, District Judge
Plaintiff Tekle Tsehaye brings this discrimination action
pursuant to the District of Columbia Human Rights Act ("DCHRA")
and 42 U.S.C. § 1981 against defendant William C. Smith & Co.,
Inc. ("Smith"), asserting claims of discrimination and
retaliation based on race and national origin. Presently before
the Court is Smith's motion for summary judgment. For the reasons
stated below, the Court will grant Smith's motion for summary
Smith is a residential property management company
headquartered in Washington, D.C. Def.'s Statement of Undisputed
Facts at 1 ¶ 1 ("Def.'s Statement"). In 1995, Tsehaye, an
Ethiopian male, began working for Smith as a full-time janitor in
an apartment building located at 2701 Connecticut Avenue, NW
("2701"). Id. at 2. 2701 contains approximately 71 units. Id.
As part of his compensation package, Tsehaye was permitted to
live in 2701 without paying rent. Pl.'s Exh. 20. In his capacity
as janitor, Tsehaye was responsible for vacuuming, dusting common
areas, mopping stairways, preparing vacant apartments for
occupancy, and similar tasks. Def.'s Statement at 1-2 ¶ 2.
Tsehaye was also hired to perform landscaping duties for 2701. See Tsehaye Aff. at 1-2; see also Pl.'s Statement of
Genuine Issues of Material Facts Necessary to be Litigated at 1 ¶
2, 3 ¶ 9 ("Pl.'s Statement").
For the first seven years of his employment at 2701, Tsehaye
was only loosely supervised. Def.'s Statement at 2 ¶ 3. This
laissez-faire approach to employee management was the direct
result of an unfortunate combination of employee turnover,
illness, and death at the supervisory levels of 2701. Id. at ¶¶
3, 5, 8, 10. In April of 1997, a new Resident Manager, John
Horan, was hired and became Tsehaye's supervisor. Id. at ¶ 5.
In January of 1998, Horan also assumed the duties of Property
Manager, which required him to manage several properties on a
full-time basis while still acting as 2701's Resident Manager
part-time. Id. at ¶ 5. Jane Loos took over as the on-site
Resident Manager in October 2001, enabling Horan to work solely
as Property Manager and to operate off-site from Smith's
headquarters. Id. at ¶ 6. As Property Manager, Horan was
responsible for maintaining and evaluating the expenses and
financial allotments of his properties, overseeing staff
management at those properties, and monitoring the condition of
those properties. Id. at ¶ 5.
Shortly after Loos took over, she was diagnosed with terminable
cancer and was unable to perform the full functions of her job as
Resident Manager, which left Tsehaye and the other 2701 employees
without much direct oversight. Id. at 3 ¶ 8. Loos became
incapacitated in October 2002, and Smith did not hire a
replacement until March 25, 2003. Id. at ¶¶ 8, 11, 12. At this
time, Smith employed only one full-time employee in addition to
Tsehaye: an African American man by the name of Louis Carter.
Id. at ¶ 12. Carter was employed as a Maintenance Engineer, and
as such was responsible for making repairs in both occupied and
unoccupied units, mostly regarding electrical, heating, and
carpentry problems. Id. A part-time janitor named Jose Ramos,
of Hispanic origin, was also employed at 2701 beginning in early
2002. Pl.'s Statement at 4 ¶ 22. At this time, Ramos worked four hours per day at 2701.
See Plaintiff's Memorandum in Opposition to Defendants Motion
for Summary Judgment at 27 ("Pl.'s Mem. Opp'n"); see also
Pl.'s Exh. 12.
On March 25, 2003, Smith hired Susan Petree to replace Loos.
Def.'s Statement at 3 ¶ 12. Petree's management style stood in
marked contrast to those of Loos and Tsehaye's previous
supervisors. Petree ran a tight ship, keeping close tabs on the
whereabouts of employees, the hours they worked, and how quickly
and thoroughly they completed their assignments. See id. at 4
¶ 14. She instituted several new policies and procedures,
including one that required employees to complete timesheets on a
daily basis in order to detail their work hours. Id. She also
instituted the use of checklists to ensure that employees
completed their tasks in a satisfactory manner. Id.
From the start, Petree and Tsehaye became embroiled in an
intense personality conflict. Petree found Tsehaye to be
insubordinate, unresponsive and difficult, and described his job
performance as poor. Id. at ¶¶ 14-15. Tsehaye claims that
Petree treated him "like a stinking dog", Plaintiff's Complaint
at 9 ¶ 40 ("Pl.'s Compl."), by: (1) behaving in an unfriendly
manner toward both Tsehaye and his wife, see Pl.'s Statement at
6 ¶ 38; (2) displaying affection for every employee at 2701 but
Tsehaye, see id. at 6-7 ¶ 39; (3) paging Tsehaye incessantly,
Pl.'s Compl. at 4 ¶ 18; (4) requiring Tsehaye to re-perform tasks
that Tsehaye urges he had already completed in a timely and
satisfactory fashion, see id. at 8 ¶ 37; (5) yelling at
Tsehaye and pointing her fingers in his face, id. at 6-7 ¶ 27,
28; (6) forcing Tsehaye to clean up after other employees, id.
at 8 ¶ 37; (7) requiring Tsehaye to work later than he was
originally scheduled to work, Pl.'s Compl. at 4 ¶ 18; see
also Pl.'s Statement at 7 ¶¶ 40-41; (8) physically jostling
Tsehaye in an aggressive fashion, Pl.'s Compl. at 6 ¶ 27; and (9) generally
pestering him in an unpleasant manner, see id. at 4-6; see
also Pl.'s Statement at 7 ¶¶ 40-42.
The record establishes that Petree issued a series of memoranda
to Tsehaye, citing various inadequacies regarding his
performance. See Pl.'s Exh. 23, 24, 40; Def.'s Statement at 5
¶¶ 18-22. These memoranda generally asked Tsehaye to be more
responsive, to be more efficient, to complete his tasks in a
proper fashion, and to stop arguing with Petree and resisting her
authority. See Pl.'s Exh. 23, 24, 40; Def.'s Statement at 5 ¶¶
18-22. Tsehaye was never suspended or demoted as a direct result
of these memoranda. See Def.'s Statement at 6 ¶ 23.
Horan had received several complaints about Petree's behavior,
from both Tsehaye and Carter. Horan Tr. at 44-45, 54-55, 71;
Carter Tr. at 38. In fact, Horan himself has described Petree as
"rude," "insubordinate," and "argumentative." Horan Tr. at 39-40,
83. Because Tsehaye and Petree were so openly unable to function
in a working relationship, Horan became involved. Horan held a
meeting with Tsehaye and Petree on May 21, 2003 in an attempt to
mediate their differences. See Horan Tr. at 45-46; Petree Tr.
at 86-90. However, this meeting proved unproductive, as it
quickly became confrontational and escalated to Tsehaye storming
out of the room. See Horan Tr. at 54; Carter Tr. at 72-73;
Petree Tr. at 88-89. Tsehaye alleges that he explicitly accused
Petree of discrimination at this meeting. Tsehaye Aff. at 11-12 ¶
35; Pl.'s Statement at 9 ¶ 47.
Six days later, Tsehaye filed a discrimination complaint with
Carol Longmore, a Human Resource Generalist in Smith's Human
Resources Department, regarding the way Petree treated him. Pl.'s
Statement at 10 ¶ 51; see also Longmore Tr. at 32-33; Horan
Tr. at 65-66; Tsehaye Tr. at 164-68. Horan was present when the
complaint was filed, and was aware that Tsehaye was complaining
of discrimination. Tsehaye Aff. at 12 ¶ 37; Longmore Tr. at 39.
According to Longmore, Tsehaye said that he did not care for the way Petree
had treated him, stating that Petree had pushed him, shouted at
him, and interrupted him while he was speaking at the May 21
meeting. Longmore Tr. at 37-38. Tsehaye's complaint made its way
to Smith's Human Resources Director, Bob Grzesik, who held a
meeting with both Petree and Tsehaye on May 29, 2003. Longmore
Tr. at 33, 51-54; see Tsehaye Tr. at 173-75. Grzesik told
Tsehaye that Petree was his superior and, thus, he must follow
her orders. Longmore Tr. at 52-53, 55. Tsehaye alleges that on or
about May 28, 2003, Petree promised to fire him for having
complained about her. Pl.'s Compl. at 8 ¶ 35; Pl.'s Statement at
11 ¶ 52; see also Tsehaye Aff. at 12-13 ¶ 38. On June 9,
2003, Petree called Tsehaye a "dumb Ethiopian who did not know
his rights" and stated that "all Ethiopians are dumb or
ignorant." Pl.'s Statement at 11 ¶ 58; see also Pl.'s Compl.
at 10 ¶ 44.
On June 5, 2003, Horan was replaced by Craig Channell, the Vice
President and Director of Operations at Smith. Ritz Decl. at 3 ¶
11; Channell Tr. at 23, 35-36. John Ritz, the President of Smith,
had reviewed the proposed 2003 budget for 2701 in late
October/early November of 2002 and began questioning whether the
property was overstaffed. Ritz Decl. at 4 ¶ 12. However, this was
during Loos' illness, and Ritz did not think that it was an
appropriate time to downsize. Id. But when Ritz appointed
Channell to replace Horan, he thought the time ripe for a
complete review of the budget and staffing operations of 2701,
and directed Channell to undertake such an analysis. Ritz Decl.
at 3 ¶ 11. Channell was asked to review the entire operation of
the building, including its personnel, payroll, leasing,
financial performance, and physical condition. Id. When
Channell's review was complete, he determined that, in light of
2701's size, payroll costs were unduly high and thus the actual
earnings of 2701, as compared to its expected earnings, were
unsatisfactory. Channell Tr. at 94-96. The two Smith properties
that were most comparable in size to 2701 maintained payroll costs per
month per unit of approximately twenty and thirty dollars less
than those of 2701, although those properties actually had more
units than 2701. Ritz Decl. at 4 ¶ 13.
Petree primed Channell on her assessment of Tsehaye's attitude
and job performance. Def.'s Statement of Undisputed Facts at 8 ¶
33. Notwithstanding Petree's statements, or the financial
assessment of 2701, Channell decided to let Tsehaye remain in his
position to give him "time to improve his work performance and
learn to work with Petree." Id.; see Channell Tr. at 54. But
as he observed the situation at 2701, Channell became concerned
about Tsehaye's attitude and performance. Channell Tr. at 61-64.
Channell instructed Petree to tell Tsehaye to clean the building
and to perform his other tasks more frequently and thoroughly.
Chanell Tr. at 61-64. On June 20, 2003, Channell held a meeting
with Tsehaye, during which he explained that Petree was Tsehaye's
superior and Tsehaye was required to follow Petree's
instructions. Tsehaye Tr. at 193-200. Channell also gave Tsehaye
a formal letter to this effect, which clearly expressed
Channell's views that 2701 did not need two full-time employees
and that Tsehaye's position would likely be the one reduced to a
part-time schedule. Pl.'s Exh. 25.
According to Channell, Tsehaye's job performance did not
improve. On one notable occasion in July 2003, Channell and
Tsehaye worked together to prepare a vacant apartment for
occupancy. When Channell asked Tsehaye to clean the bathroom,
Tsehaye responded that he had already done so and did not intend
to do it a second time. Channell Tr. at 101. Channell proceeded
to clean the bathroom himself, and Tsehaye eventually took over.
Channell Tr. at 101. For Channell, this was the proverbial last
straw, prompting him to conclude in early July that Tsehaye would
have to be terminated. Channell Tr. at 55. Tsehaye's treating physician diagnosed him with job related
stress, anxiety, and insomnia on July 11, 2003, after which
Tsehaye took ten days of medical leave. Pl.'s Statement at 13 ¶
64; Pl.'s Exh. 29. Three days later, Ramos' work schedule was
doubled, making him a full-time employee at 2701, and he took
over Tsehaye's duties. Pl.'s Statement at 13 ¶ 66; Pl.'s Exh. 12.
On July 21, 2003, Channell instructed Petree to direct Tsehaye to
obtain his doctor's clearance before he would be permitted to
resume his employment duties. Pl.'s Exhibit 30. On July 22, 2003,
Channell informed Tsehaye that his employment was terminated,
Tsehaye Tr. at 21-22; Pl.'s Exh. 31, notwithstanding the fact
that Tsehaye had obtained the requisite doctor's clearance, see
Pl.'s Statement at 13 ¶ 68; Pl.'s Exh. 28. Tsehaye states that
Petree issued a memorandum terminating his employment on June 19,
2003, but concedes that Channell prevented Petree from giving it
to Tsehaye because Petree had no authority to fire Tsehaye. Pl.'s
Statement at 12 ¶ 60; see also Pl.'s Exh. 42.
Smith has moved for summary judgment, alleging that even if all
of Tsehaye's assertions are true, Tsehaye has not proven conduct
that rises to the level of legally cognizable harm based on
racial discrimination or retaliatory action under the applicable
statutes. For the reasons discussed herein, the Court finds that
summary judgment in favor of Smith is warranted.
I. Summary Judgment
Summary judgment is appropriate when the pleadings and the
evidence demonstrate that "there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). The moving party
bears the initial responsibility of demonstrating the absence of
any genuine dispute of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The moving party may
successfully support its motion by "informing the district court of the basis for its
motion, and identifying those portions of `the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact."
Id. (quoting Fed.R.Civ.P. 56(c)).
To determine whether a genuine dispute of material fact
sufficient to preclude summary judgment exists, the court must
take the non-movant's assertions as true, accepting all evidence
and drawing all inferences in the non-movant's favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A
non-moving party, however, must establish more than a "mere
existence of a scintilla of evidence" in support of its position.
Id. at 252. A movant may successfully obtain summary judgment
by pointing to the absence of evidence proffered by the
non-moving party. Celotex, 477 U.S. at 322. "If the
[non-movant's] evidence is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50 (internal citations omitted).
Summary judgment is appropriate if the non-movant fails to offer
"evidence on which the jury could reasonably find for the
[non-movant]." Id. at 252; see also Holbrook v. Reno,
196 F.3d 255, 259-60 (D.C. Cir. 1999).
II. Legal Framework Under DCHRA
The District of Columbia, for alleged violations of DCHRA, has
"adopted the Supreme Court's approach in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), the seminal case establishing the
burden of proof in employment discrimination cases under Title
VII." Miller v. American Coalition of Citizens with
Disabilities, 485 A.2d 186, 189 (D.C. 1984). Similarly, alleged
violations of § 1981 are addressed under the McDonnell Douglas
framework. Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir.
2005). Under this framework, the plaintiff has the burden of
establishing a prima facie case of discrimination or retaliation by a preponderance of
the evidence. McDonnell Douglas, 411 U.S. at 802; see also
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
If the plaintiff establishes a prima facie case, the burden
then shifts to the employer to articulate a legitimate,
nondiscriminatory or non-retaliatory reason for its actions.
McDonnell Douglas, 411 U.S. at 802. The employer's burden,
however, is merely one of production. Burdine,
450 U.S. at 254-55. The employer "need not persuade the court that it was
actually motivated by the proffered reasons. It is sufficient if
the defendant's evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff." Id.
If the employer successfully articulates a nondiscriminatory or
non-retaliatory basis for its actions, the burden shifts back to
the plaintiff to show that the employer's stated reason was a
pretext for discrimination or retaliation. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff
may attempt to establish that she was the victim of intentional
discrimination "by showing that the employer's proffered
explanation is unworthy of credence." Id. (quoting Burdine,
450 U.S. at 256). But "[p]roof that the defendant's explanation
is unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination." Id.
at 147. Thus, the trier of fact may also "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.'" Id. (quoting
Burdine, 450 U.S. at 255 n. 10). As the Reeves Court
Whether judgment as a matter of law is appropriate in
any particular case will depend on a number of
factors . . . includ[ing] the strength of the
plaintiff's prima facie case, the probative value of
the proof that the employer's explanation is false,
and any other evidence that supports the employer's case and that
properly may be considered on a motion for judgment
as a matter of law.
Id. at 148-49.
Thus, if the employer meets its burden of proffering a
nondiscriminatory impetus for its actions, then trial or summary
judgment proceedings will center on whether a jury could infer
discrimination from the following mix of evidence: (1) the
plaintiff's prima facie case; (2) any evidence presented by the
plaintiff to undercut the employer's proffered non-discriminatory
impetus; (3) any other evidence of discrimination available to
the plaintiff, including independent evidence of the employer's
discriminatory statements or attitudes; and (4) any contrary
evidence available to the employer, including evidence that the
employer has a pattern of taking seriously its responsibilities
of equal opportunity employment. Aka v. Washington Hosp. Ctr.,
156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc); see also
Waterhouse v. District of Columbia, 298 F.3d 989, 992-993 (D.C.
Although the "intermediate evidentiary burdens shift back and
forth" under the McDonnell Douglas framework, "`[t]he ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting
Burdine, 450 U.S. at 253). Once the defendant has proffered a
legitimate nondiscriminatory reason for its action, the question
then becomes whether that proffered reason is a pretext for
discrimination. At this point, the McDonnell Douglas
burden-shifting framework is dissolved. The sole remaining issue
is discrimination vel non, and "to survive summary judgment
the plaintiff must show that a reasonable jury could conclude
from all of the evidence that the adverse employment decision was
made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); see
Reeves, 530 U.S. at 142-43. Examination of that issue in this
setting therefore requires consideration of all the relevant
circumstances in evidence, including the strength of the prima
facie case, any direct evidence of discrimination, any
circumstantial evidence that defendant's proffered explanation is
false (which, in conjunction with the prima facie case, may be
sufficient to infer unlawful discrimination), and any
properly-considered evidence supporting the employer's case.
Reeves, 530 U.S. at 147-48; see also Teneyck v. Omni
Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004); Lathram,
336 F.3d at 1089; Waterhouse, 298 F.3d at 993; Aka,
156 F.3d at 1290.
Tsehaye's Complaint raises three claims: (1) discrimination
based on Petree's conduct; (2) discrimination in his termination;
and (3) retaliation by termination for his prior complaints about
Petree's conduct.*fn1 These claims arise under § 1981 and
the DCHRA. Smith has moved for summary judgment, arguing that
Tsehaye cannot establish a prima facie case for these claims and
that Tsehaye cannot show that Smith's proffered justifications
for its actions were a pretext for discrimination or retaliation.
The Court will address each of Tsehaye's claims in turn.
A. Alleged Discriminatory Conduct of Petree To make out a prima facie case of discriminatory treatment,
Tsehaye must establish that: (1) he is a member of a protected
class; (2) he suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.
Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). As set forth above,
the McDonnell Douglas burden-shifting framework applies once
Tsehaye has carried his burden of establishing a prima facie
Tsehaye's first claim is that the conduct of Petree, his
supervisor, was discriminatory. Specifically, Tsehaye alleges
that Petree: (1) wrongfully gave him disciplinary memoranda; (2)
made statements that maligned his Ethiopian nationality and
disparaged Ethiopians in general; (3) physically touched him in
an aggressive fashion; (4) gave him inconsistent instructions and
"unreasonable" deadlines; and (5) generally was rude toward him.
See Pl.'s Mem. Opp'n at 17-26. All of these claims regarding
Petree's conduct fail for the same reason: Tsehaye cannot
establish that he suffered an adverse employment action. A prima
facie case for discrimination requires an adverse employment
action. Stella, 284 F.3d at 145.
If a plaintiff has not suffered a reduction in benefits or pay,
then an adverse personnel action can only be established if it is
shown that the employer's action had "materially adverse
consequences affecting the terms, conditions, or privileges of
employment." Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir.
2002) (quoting Brody, 199 F.3d at 457) (decision of district
court reprinted with endorsement from D.C. Circuit panel)).
Indeed, "[a]n `employment decision does not rise to the level of an actionable
adverse action . . . unless there is a tangible change in the
duties or working conditions constituting a material employment
disadvantage.'" Id. (quoting Walker v. Washington Metropolitan
Area Transit Authority, 102 F. Supp. 2d 24, 29 (D.D.C. 2000);
see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998) (stating that "[a] tangible employment action
constitutes a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits"); Brody, 199 F. 3d at 457.
Tsehaye fails to show that he suffered an objectively tangible
harm to the terms of his employment. He did not lose any pay or
benefits, nor suffer any diminished responsibilities, as a result
of Petree's conduct. Rather, he appears to have had the
unfortunate experience of working under an overbearing
micromanager. But without more, the law does not recognize this
type of workplace unpleasantry as actionable. See, e.g.,
Mack v. Strauss, 134 F. Supp. 2d 103, 113-14 (D.D.C. 2001)
(holding that plaintiff's allegedly increased workload was
insufficient to support suit for discrimination in the absence of
"some other adverse change in the terms, conditions, or
privileges of employment"; standing alone, harassing and
threatening treatment does not constitute actionable
discrimination unless so pervasive and severe as to constitute a
hostile work environment); Brodetski v. Duffey,
141 F. Supp. 2d 35, 47 (D.D.C. 2001) (stating that "[c]riticism of an employee's
performance unaccompanied by a change in position or status does not
constitute adverse employment action").*fn2
Tsehaye's complaints about Petree's disciplinary memoranda also
fail to allege a tangible harm to the terms of his employment. A
reprimand that "amounts to a mere scolding, without any
disciplinary action which follows, does not rise to the level of
adverse action." Childers v. Slater, 44 F. Supp. 2d 8, 20
(D.D.C. 1999), vacated in part on other grounds,
197 F.R.D. 185, 191 (D.D.C. 2000); see also Stewart, 275 F.3d at 1136
(observing that "[t]his [c]ourt has held that formal criticisms
or reprimands, without any additional disciplinary action such as
a change in grade, salary, or other benefits, do not constitute
adverse employment actions"). Although Tsehaye was eventually
terminated by Smith, he did not suffer any change to the terms of
his employment as a direct result of Petree's memoranda.
Accordingly, Tsehaye cannot establish the requisite element that
he suffered an adverse employment action, and he necessarily
fails to carry his prima facie case burden with respect to his
independent claim that Petree's conduct constituted actionable
B. Termination Discrimination Claim
Tsehaye's second claim is that his termination from his
position as janitor was discriminatory. The elements of a prima
facie case for termination discrimination are identical to those
for discriminatory treatment. Termination from employment certainly qualifies as an adverse
employment action, see Ellerth, 524 U.S. 742, 761 (1998), and
there is no debate that, as an African of Ethiopian nationality,
Tsehaye is a member of a protected class. Tsehaye has also
sufficiently shown an inference of discrimination in his
termination. Thus, he has established a prima facie case for
discrimination, and the burden now shifts to Smith to articulate
a legitimate nondiscriminatory justification for terminating
Tsehaye. See McDonnell Douglas, 411 U.S. at 802.
Smith contends that Craig Channell, the resident manager of
2701, determined that costs were too high for that building and
that payroll therefore needed to be reduced i.e., that one of
the 2701 employees would have to be terminated. Def. Mem. at 8-9;
see also Channell Tr. at 60-61, 96; Pl.'s Exh. 25. Channell
further explained that he chose to terminate Tsehaye rather than
Carter because Carter could do some of Tsehaye's work, but the
converse was not true. Channell Tr. at 60-61. Smith also contends
that the problems between Tsehaye and Petree, in addition to the
performance deficiencies identified by Channell, further
justified Tsehaye's termination. Id. These proffers satisfy
Smith's burden under the McDonnell Douglas framework. Thus, the
burden shifts back to Tsehaye, and he must show that Smith's
proffered nondiscriminatory motives are actually a pretext for
discrimination. See Reeves, 530 U.S. at 143.
Here, Tsehaye's first avenue of attacking Smith's proffered
nondiscriminatory motives is to assert that neither 2701 nor
Smith actually suffered from financial distress. Tsehaye provides a detailed
analysis of 2701's financial condition, including a comparison to
other Smith buildings. Pl.'s Mem. Opp'n at 31-37. Tsehaye draws a
number of conclusions from this analysis that call Smith's
financial justification into question. Id. For example, Tsehaye
asserts that not only was 2701 not in financial distress, but
Smith hired both Carter and Petree after it had already
identified concerns regarding payroll costs, id. at 33, and it
hired Ramos as a full-time employee to replace Tsehaye after he
was terminated, see id. at 25-27. Tsehaye also claims that
payroll costs did not cause 2701 to lose money, and that the
costs per unit at 2701 were in step with those of other Smith
buildings. Id. at 33-37. Finally, Tsehaye asserts that Smith
had to incur new expenses as a result of his termination
namely, landscaping costs and that this fact refutes the
suggestion that his termination was based on financial concerns.
See id. at 32.
Although Tsehaye presents a thorough argument for pretext, it
is ultimately unpersuasive. Smith never claimed that 2701 was in
danger of financial insolvency; rather, Smith claimed that it
assessed the monthly costs per unit at 2701 and did not think
them prudent. Essentially, Smith no longer wished to continue
shelling out the same amount of money for 2701's payroll. Tsehaye
offers no reason to disbelieve this non-discriminatory
justification for his termination. This is a legitimate financial
business decision, and the Court will not second guess it. See
Hardin v. Hussman Corp., 45 F.3d 262, 265 (8th Cir. 1995)
(stating that "when a company's decision to reduce its workforce is due to the exercise of business judgment, it need
not provide evidence of financial distress"). An employer is not
legally required to face financial collapse before downsizing its
staff. Smith determined that 2701 was not earning as much money
as it wanted the building to earn, and the termination of
plaintiff was part of a larger attempt to maximize Smith's
profits. Thus, Tsehaye's evidence, putting aside any questions of
its competence or accuracy,*fn3 is not convincing.
The remainder of Tsehaye's attempts to rebut Smith's proffered
financial justification for Tsehaye's termination also fall
short. To begin with, the Court is not particularly troubled by
the fact that Smith hired Petree and Carter even after the desire
to maximize 2701's profits arose. See Pl.'s Mem. Opp'n at 32.
Petree and Carter were hired because Smith needed to fill staff
vacancies at that time and to make 2701 function properly again
following the extended stretch of poor management. See Channell
Tr. at 96. Smith may have determined that, notwithstanding the
fact that 2701 would have been more profitable if it continued to
operate short-handed, the immediate objective of fixing the building's operational infrastructure was
worth the delay in fiscal savings. See id. That, again, would
be a legitimate business decision. Whether it was wise or unwise
is not something this Court will address. The question for the
Court is whether it was pretextual and thus discriminatory.
The fact that Ramos was hired to replace Tsehaye after his
termination is also insufficient to negate Smith's proffered
financial justification. Ramos was actually only hired full-time
after Tsehaye was discharged. Ramos had been working at 2701 four
hours per day; once Tsehaye left, Ramos' hours were bumped up to
eight hours per day. See Pl.'s Mem. Opp'n at 26-28; Pl.'s Exh.
12. The additional cost to Smith was therefore just four hours
per day: the equivalent of hiring a part-time worker. Combined,
the termination of Tsehaye and expansion of Ramos' hours resulted
in a net cost savings to Smith of four hours per day. Thus, the
fact that Ramos was employed at 2701 full-time after Tsehaye was
discharged does not show that Smith was not trying to maximize
2701's profits. To the contrary, it shows that Smith cut back on
the total hours of paid employment.
Finally, the fact that Smith incurred landscaping costs after
Tsehaye's discharge is also unremarkable, as Smith had incurred
similar landscaping costs in the past. Smith never stated that
its decision to fire Tsehaye rested solely on financial concerns;
rather, it appears to have been predicated on the overall mix of
circumstances, including: (1) a desire to maximize 2701 profits
in particular; (2) a desire to maximize Smith profits generally;
(3) problems with Tsehaye's work ethic and attitude; (4) problems
with Tsehaye's job performance; and (5) the incurable personality
conflict between Tsehaye and Petree. Thus, Smith in its
business judgment could reasonably have decided that Tsehaye's
continued employment at 2701 was not worth the modest fiscal
advantage flowing from his ability to perform landscaping duties.
Tsehaye's second avenue of attack concerns his own work
performance. On this point, Tsehaye's evidence consists mainly of
his own subjective assessment of his performance. Even if that
evidence were proper, it would still be insufficient to establish
pretext. See, e.g., Keeley v. Small, ___ F. Supp. ___, 2005 WL
2304162 at *16 (D.D.C. 2005) (citing Waterhouse v. District of
Columbia, 124 F. Supp. 2d 1, 7 (D.D.C. 2000), aff'd,
Waterhouse, 298 F.3d at 992-993)). The Court is not concerned
with whether Smith's proffered nondiscriminatory justifications
are in fact the reasons why Tsehaye was discharged; relief under
the law exists not when the defendant's proffers are merely
pretextual, but rather when they are pretexts for
discrimination. See Murray, 406 F.3d at 713 (describing the
pretext analysis as two-fold, requiring a determination whether a
reasonable jury could infer that the employer's proffered
nondiscriminatory motive is pretextual, and, if so, whether a
reasonable jury could infer that the pretext shielded a
discriminatory animus); cf. Aka, 156 F.3d at 1291 (stating
that material questions regarding whether the employer's
nondiscriminatory justification for its actions is true will not
suffice to support an inference of discrimination if the
plaintiff has established pretext in a way that supports an
inference of a different nondiscriminatory motivation, or if the
plaintiff has only weakly shown that the employer's reason could be false and the record contains
ample evidence that no discrimination was involved). Even
assuming that Tsehaye has established that Smith did not fire him
because it wanted to maximize 2701's profits, and that Tsehaye
was a paradigm of janitorial perfection, there is still no
legally cognizable harm. Tsehaye must show that the real reason
for his termination was his nationality or race, not that Smith
harbored an intense and conspiratorial disdain for him.
C. Retaliation Claim
To make a prima facie showing of retaliation, Tsehaye must
establish that: (1) he was engaged in a statutorily protected
activity; (2) Smith took an adverse personnel action against him;
and (3) there is a causal nexus between Tsehaye's engagement in
the protected activity and Smith's adverse personnel action.
Brody, 199 F.3d at 452; Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); McKenna v. Weinberger, 729 F.2d 783, 790
(D.C. Cir. 1984). The McDonnell Douglas burden-shifting
framework applies once Tsehaye has made his prima facie case.
Tsehaye's complaint of discrimination to a superior at Smith
suffices as a protected activity: the law does not require a
formal EEOC or court filing. See, e.g., Jones v. Washington
Metropolitan Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir.
2000) (affirming lower court's finding of retaliation based on
letter sent by employee to employer's manager, which described
discrimination practices against Caucasian women); McKenna,
729 F.2d at 791 (finding retaliation where employee orally complained to
superiors about sexism). Thus, Tsehaye's escalation to Smith's
Human Resources Department by filing a discrimination grievance
against Petree constitutes a statutorily protected activity.
Smith also knew about the complaint, as it was filed at Smith's
headquarters with Smith employees, a Smith supervisor accompanied
Tsehaye when he made the complaint, and a Smith personnel manager
met with Tsehaye as a result of the complaint. When Smith
terminated Tsehaye's employment, Smith took an adverse employment
action against him. Thus, Tsehaye clears the first two hurdles
for proving a prima facie case.
Tsehaye has also satisfied the third hurdle: he has
successfully shown a causal nexus between his protected activity
and Smith's adverse personnel action. A plaintiff may establish
causation by demonstrating a sufficiently close temporal
proximity between an employer's knowledge of protected activity
and an adverse employment action. See Clark County Sch. Dist.
v. Breeden, 532 U.S. 268, 273 (2001). Here, the key inquiry
focuses on the length of time between the two. See, e.g.,
Childs-Pierce v. Utility Workers Union of America,
___ F. Supp. 2d ___, 2005 WL 1983577 at *13 (D.D.C. 2005). Courts diverge on the
issue of how short the length of time must be, compare
Mitchell, 759 F.2d at 86-87 (holding that the passage of three
months between the employee's protected activity and the
employer's adverse personnel action is sufficient to establish
causation for purposes of the plaintiff's prima facie burden),
and Castle v. Bentsen, 867 F. Supp. 1, 3 (D.D.C. 1994)
(stating that a gap of three to five months may support a finding of causation), with Kipp v. Missouri Highway & Transp.
Comm'n, 280 F.3d 893, 897 (8th Cir. 2002) (holding that a
two-month interval is too attenuated to support a finding of
causation), and Baker v. Potter, 294 F. Supp. 2d 33, 41
(D.D.C. 2003) (stating that a two-month interval is insufficient
to support the finding of a causal nexus).
There are a myriad of reasons why Smith may have decided to
terminate Tsehaye's employment. But the fact remains that Tsehaye
filed the discrimination grievance at Smith's headquarters with
Ms. Longmore on May 27, 2003, and he was promptly terminated less
than one month later, on June 22, 2003. This interval of
twenty-six days certainly suffices to establish an inference of
causation where, as here, the adverse employment action taken
final termination was severe. See Childs-Pierce, 2005 WL
1983577 at *13 (holding that interval of nine weeks was
sufficient to support finding of causation in part due to the
severity of the adverse employment action). Thus, Tsehaye has
established a prima facie case of retaliation.
Nevertheless, this is as far as Tsehaye may go under the law.
Tsehaye's Achilles heel is again the inability to prove pretext
on the part of Smith. Tsehaye cannot, for the reasons discussed
earlier in connection with the termination discrimination claim,
make the requisite showing that Smith's proffered justifications
for his discharge were a pretext for discrimination, rather
than a pretext for something else. See, e.g., Murray,
406 F.3d at 713. Accordingly, Tsehaye has failed to carry his
ultimate burden under the McDonnell Douglas framework. CONCLUSION
For the reasons discussed above, Smith's motion for summary
judgment is granted. This case is accordingly dismissed. A
separate Order has been issued on this day.
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