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Mitchell v. National Railroad Passenger Corp.

December 30, 2005

ELAYNE R. MITCHELL, PLAINTIFF,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Elayne Mitchell, formerly employed by defendant National Railroad Passenger Corporation ("Amtrak") in its human resources department, filed an amended complaint against Amtrak for race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. (2000), and 42 U.S.C. § 1981 ("§ 1981")(Count I); age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, et seq. (Count II); gender discrimination in violation of Title VII (Count III); perceived disability discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq. (Count IV); and race, age, gender and perceived disability discrimination in violation of the D.C. Human Rights Act ("DCHRA"), D.C. Code Ann. §§ 2-1401.01, et seq. (2001)(Count V). Plaintiff also set forth claims against Amtrak management and supervisory employees Lorraine Green and Paula Porter for race discrimination under § 1981 (Count I) and for sex, race, age and perceived disability discrimination under the DCHRA (Count V).*fn1

Defendants moved for summary judgment on all claims against them. Because plaintiff raises a genuine issue of material fact regarding whether Amtrak's decision to terminate her and not to hire her for a northeast corridor manager position was motivated by her race or gender, Amtrak's motion will be denied as to Counts I and III. Accordingly, because defendants Green and Porter participated in Amtrak's decision to terminate her employment, their motion will be denied as to the termination claim under §1981 in Count I. Because defendants Green and Porter played no role in Amtrak's decision not to hire her for the manager position, their motion will be granted as to the failure to hire claim under § 1981 in Count I. Because plaintiff has not demonstrated that age played any role in Amtrak's decision to terminate her employment and to not hire her for the manager position, or that Amtrak's proffered legitimate and nondiscriminatory basis for its actions was a pretext for age discrimination, Amtrak's motion will be granted as to Count II. Because there are no material facts in dispute with regard to certain elements of plaintiff's perceived disability claim, and Amtrak is entitled to judgment as a matter of law on that claim, Amtrak's motion will be granted as to Count IV.

Because plaintiff's race, age, gender and perceived disability claims under the DCHRA are subject to virtually the same legal analysis that governs Counts I through IV under federal law, judgment will be granted to defendants on Count V with respect to plaintiff's claims of age and perceived disability discrimination, but Amtrak's motion will be denied on plaintiff's race and gender discrimination claims in Count V. Green and Porter's motion regarding plaintiff's race and gender discrimination in termination claims in Count V will be denied as the DCHRA, unlike Title VII, does subject Green and Porter to individual liability. However, because Green and Porter did not participate in the hiring decision for the manager position, judgment will be granted to them as to the failure to hire claims in Count V.

BACKGROUND

I. PLAINTIFF'S EMPLOYMENT WITH AMTRAK

Plaintiff, an African-American female, worked in Amtrak's corporate Human Resources ("HR") Department in Washington, D.C. from January 1996 to January 2000. (See Defs.' Stmt. Fact ¶¶ 1, 2, 22; Pl.'s Stmt. Fact ¶ 100.) Amtrak hired plaintiff as a Human Resources Project Leader, and later changed her title to Human Resources Consultant. (See Pl.'s Am. Compl. ¶ 9; Defs.' Ans. ¶ 9.) Plaintiff worked in the HR Department's Workforce Development unit at the time Amtrak terminated her employment. (See Defs.' Stmt. Fact ¶¶ 12, 13.)

Defendant Paula Porter, an African-American female and the former Director of the Workforce Development unit in the HR Department,*fn2 interviewed plaintiff and recommended and sought approval for her hiring in 1996. (See Decl. of Gerald T. Ford ("Ford Decl."), Ex. 7 at 24-26.) Porter supervised plaintiff throughout her employment with Amtrak. (See id., Ex. 5 at 37.) Defendant Lorraine Green is an African-American female and Vice-President of Amtrak's HR Department. (See Defs.' Stmt. Fact ¶¶ 20-21.) Porter was 48 years old, and Green was 54 years old, at the time Amtrak terminated plaintiff's employment. (See Pl.'s Stmt. Fact ¶ 15; Defs.' Stmt. Fact ¶ 21.)

When Amtrak hired plaintiff in 1996, she represented to Amtrak on her employee information form that her date of birth was November 27, 1940. (See Pl.'s Stmt. Fact ¶ 2; Ford Decl., Ex. 2 at A00118.) Plaintiff's actual date of birth was November 27, 1932. (See Pl.'s Stmt. Fact ¶ 2; Decl. of Martha Walfoort ("Walfoort Decl."), Ex. 1.)

During her employment, plaintiff "was responsible for analyzing the educational and training needs of Amtrak's employees, designing and implementing programs, and assessing training programs for Amtrak's employees." (Pl.'s Am. Compl. ¶ 9; see Defs.' Ans. ¶ 9.) Plaintiff provided these services to employees in Amtrak's three strategic business units ("SBUs") --Northeast Corridor ("NEC"), Inter-City and West -- and "provided training services to all Amtrak management employees . . ., which included employees in the [SBUs] as well as corporate headquarters." (Defs.' Stmt. Fact ¶ 25; Pl.'s Stmt. Fact ¶ 25.) When Amtrak management and supervisory employees required leadership and supervisory development training, plaintiff was responsible for delivering the training. (See Defs.' Stmt. Fact ¶ 26; Pl.'s Stmt. Fact ¶ 26; Ford Decl., Ex. 7 at 92-93, Ex. 5 at 36-37 (plaintiff's deposition testimony that "[she] provided the training throughout Amtrak for all of the training that fell under the title of leadership development," and that she had such a duty throughout her tenure), Ex. 23 at 405 (plaintiff's EEOC affidavit in which she states, "[i]n 1999, . . . I led a company-wide assessment of the skills gaps among front-line supervisory personnel, and developed and managed the majority of the training courses the HR Department used that year, including . . . all leadership/supervisory courses").)

II. PAUL BELLO'S HIRING

In June 1998, Amtrak posted a job opening for an HR Consultant (Management/Executive Education) position. (See Defs.' Reply at 11; Pl.'s Stmt. Fact ¶ 115; Ford Decl., Ex. 32.) Porter testified in her deposition that as Amtrak got closer to hiring someone for the position, Amtrak's "needs changed and parts of [the June 1998 job posting] were no longer applicable." (Walfoort Decl., Ex. 6 at 186.) Amtrak asserts that plaintiff never applied for the HR Consultant position posted in June 1998. (See Defs.' Reply at 12.)

In May 1999, Porter selected Paul Bello, a 49-year-old white male, to fill the vacant HR Consultant position and sought approval from Lorraine Green. (See Ford Decl., Ex. 33 and Ex. 35; Walfoort Decl., Ex. 4 at 5.) In seeking approval for Bello's hiring, Porter noted that "[t]he position for which [Bello] has been selected not only requires knowledge of training, but it is also critical that the successful candidate possess an understanding of explicit performance improvement systems." (Ford Decl., Ex. 33.) Among other skills, Porter specifically noted that Bello's hiring would bring to the Workforce Development unit "[e]xperience in the design and development of automated systems to measure and track key performance indicators" (id.), as well as "[i]ndepth knowledge of transactional delivery systems . . .." (Id.) Amtrak hired Bello as an HR Consultant in the Workforce Development unit on May 31, 1999. (See id., Ex. 34.)

III. RESTRUCTURING THE WORKFORCE DEVELOPMENT UNIT

In 1998, Amtrak hired PricewaterhouseCoopers ("PWC") to assess its HR Department. (See Walfoort Decl., Ex. 26.) According to Amtrak, "[t]he objective of the assessment was to improve client services and establish a more efficient Human Resources Department." (Id., Ex. 25 at 4.)

In November 1999, Porter prepared a power point presentation entitled "Workforce Development: Framework for the Future State -- Amtrak Human Resources -- November, 1999." (Ford Decl., Ex. 7 at 115, Ex. 10.) In the power point presentation, Porter set forth multiple challenges facing the Workforce Development unit (see id., Ex. 10 at 1), as well as an analysis of the Workforce Development unit. (See id., Ex. 10 at 2.) Plaintiff testified during her April 2002 deposition that the challenges identified by Porter in November 1999 had "been around . . . for a while" (Walfoort Decl., Ex. 7 at 74), and that Porter's analyses were accurate for both the Workforce Development unit and the HR Department as a whole. (See id. at 76-77.)

Porter indicated in her power point presentation that the Workforce Development unit in November 1999 was "segmented/ disjointed, inefficient, costly" (Ford Decl., Ex. 10 at 2), and that "accountabilities [were] unclear leading to slow responsiveness, divergent priorities, and impeded service delivery[.]" (Id.) Porter's assessment was consistent with plaintiff's deposition testimony that the Workforce Development unit was "extremely competent in developing plans[,]" but was "not equally as competent in implementation of those plans, and subsequently the personnel in the [SBUs] were dissatisfied with our delivery." (Id., Ex. 5 at 78.) Plaintiff testified that the SBUs' dissatisfaction arose from the Workforce Development unit's failure to deliver on promises because some of the Workforce Development unit team members were not "matched skill[-]wise and competency[-]wise with some of the roles identified that some of the team members had to accomplish or were asked to accomplish." (Id. at 79.)

Porter recommended in the power point presentation restructuring the Workforce Development unit by "eliminat[ing] one position -- HR Consultant, Leadership/Supervisory training." (Id., Ex. 10 at 8.) Porter's presentation concluded, in part, that the "[o]utsourcing of Leadership/Supervisory programs [would] maximize/leverage internal resources, while expanding developmental networks." (Id.) The proposed Workforce Development unit organizational restructuring*fn3 eliminated the HR Consultant position held by plaintiff. (Compare id. at 4, with id. at 7.) According to Amtrak, its decision to outsource plaintiff's position resulted from the PWC review. (See Walfoort Decl., Ex. 25 at 4.)

Porter testified in her April 2002 deposition that she made a decision around November 1999 "that in order to become more efficient and effective, [the Workforce Development unit was] going to outsource leadership development training. [The Workforce Development unit was] going to focus greater attention on analysis and tracking of training and forecasting for that training and providing greater support nationally." (Ford Decl., Ex. 7 at 113.) Porter testified that the decision to outsource leadership development training was based on a need to (1) "create a universal competency base" for Amtrak managerial employees; (2) "cover a diverse geographic area"; and (3) "become more responsive in the way that training was delivered." (Id. at 131.)

Porter testified that as a result of her decision to outsource leadership development training and eliminate plaintiff's position in the Workforce Development unit, she selected the American Management Association ("AMA") to provide leadership and supervisory training. (See id. at 133-34; see also id., Ex. 10 at 7 (Porter's power point presentation denoting that external contractors would be responsible for development and delivery of leadership and supervisory training programs).) Porter was familiar with the AMA and its training capabilities, having participated in AMA training programs "[t]hroughout [her] career, both at Amtrak and the bank." (Id., Ex. 7 at 134-35.)

Gerri Hall, an African-American female and Amtrak's Assistant Vice-President of Human Resources in January 2000,*fn4 approved Porter's recommendation to restructure the Workforce Development unit and eliminate plaintiff's HR Consultant position. (See Defs.' Stmt. Fact ¶ 42; Ford Decl., Ex. 7 at 115-116, Ex. 8 at 106-07.) Hall was 40 years old at the time Amtrak terminated plaintiff's employment. (See Defs.' Stmt. Fact ¶ 18.) After Hall approved Porter's recommendation, Green gave final approval to the proposal. (See id. ¶ 43.)

Amtrak advised plaintiff by letter dated January 7, 2000 that the company was eliminating her position as an HR Consultant in the Workforce Development unit effective January 21, 2000. (See Ford Decl., Ex. 11 at 1.) The letter advised plaintiff that she would receive, among other benefits, two weeks notice pay and four weeks severance pay if she did not sign a release agreement, or six weeks severance pay if she did sign a release agreement.*fn5 (See id. at 1, 2.) The termination letter informed plaintiff that she had 45 days to consider whether to sign a release agreement (see id. at 2), and further provided that plaintiff could "apply for other Amtrak positions during [her] two-week notice period." (Id. at 3.) Plaintiff did not sign the release agreement offered by Amtrak. (See id., Ex. 5 at 134.) She also did not apply for any Amtrak positions during her two-week notice period or at any time after Amtrak terminated her employment. (See id. at 130, 134.)

IV. PLAINTIFF'S APPLICATION FOR THE NEC MANAGER POSITION

In October 1999, before Amtrak eliminated plaintiff's HR Consultant position in January 2000, she applied for a position with Amtrak as the Employee Services-NEC Manager, one of three SBU Manager vacancies. (See id. at 102; Ford Decl., Ex. 50, Ex. 13 at 15.) Rose Bacchus, an African-American female who was 53 years old in January 2000, was the Director of Employee Services*fn6 for Amtrak and the decisionmaker with respect to the NEC Manager position for which plaintiff applied. (See Defs.' Stmt. Fact ¶¶ 52, 53, 59; Ford Decl., Ex. 13 at 15, 17.) Bacchus testified in a deposition that the Employee Services unit acted as an "ombudsman" for employees (see Defs.' Stmt. Fact ¶ 55), serving as a "resource" for any questions or problems that any employee had and working to "pull the right people together" to get any questions or problems resolved quickly. (Id. ¶¶ 55, 56.) The Employee Services unit consisted of only Bacchus and the four managers she supervised -- one for each of the SBUs (NEC, InterCity and West) and one to handle whistleblower and ADA issues. (See id. ¶¶ 57, 58.) Bacchus interviewed candidates for the three SBU manager positions in December 1999, and January and February 2000. (See Ford Decl., Ex. 15, Ex. 18 and Ex. 19.)

The October 1999 NEC Manager job posting provided that the NEC Manager "[a]dministers and coordinates company sponsored employee services to further the development of employee-company relationships" (Ford Decl., Ex. 14), and indicated that the NEC Manager "[o]ften conducts difficult employee counseling sessions regarding hiring practices, salary, job classification, promotion, discipline, performance and termination." (Id.) The job posting further indicated that it was "preferred" that a candidate have a bachelor's degree or senior human resource management certification (see id.), and provided that a candidate "[m]ust effectively create and use written materials, oral presentations and [verbal] interchange, and be at ease working with [senior] staff members." (Id.)

Michael Ramirez, a Senior Director of Workforce Management at the time, was 43 years old when Amtrak posted the NEC Manager position in October 1999. (See Defs.' Stmt. Fact ¶¶ 66, 67; Pl.'s Stmt. Fact ¶ 66.) Ramirez provided assistance to Bacchus in the interview and selection process (see Pl.'s Stmt. Fact ¶ 68), but "it really was [Bacchus's] decision" on whom to hire for the NEC Manager position (Ford Decl., Ex. 13 at 66), subject to approval from her supervisor Gerri Hall. (See Walfoort Decl., Ex. 16 at 71-72.*fn7 )

Bacchus created interview forms and wrote the interview questions for the NEC Manager position. (See Ford Decl., Ex. 13 at 28.) Bacchus and Ramirez used the same form and asked the same questions of each candidate during the interview process. (See id. at 41.) Bacchus testified in her August 2002 deposition that although she tried to use the candidate rating system --strong, good and weak -- that she included on the interview form (see id. at 41, 64-65), she "may not have checked it every time . . .." (Id. at 41.)

According to Bacchus, in comparison to a candidate's written application or resume, the interview process was the "key component" to the selection process for the SBU manager positions. (See id. at 62.) Bacchus testified that "the interview would certainly override, would be more important to [her] than the application because [she] get[s] more information from the interview." (Id.) She explained that at the interview stage, she was interested in having a candidate elaborate on the words contained on her or his application or resume. (See id. at 63.)

Bacchus testified that it was important for the Employee Services SBU managers to have (1) interpersonal communication skills; (2) knowledge of Amtrak; (3) relationships, such as professional networks, within Amtrak; and (4) an ability to appropriately bring all of these together. (See id. at 29.) She defined interpersonal communication skills to include "listening as well as the ability to communicate with all levels of people in a variety of situations" (id. at 30), and knowledge of Amtrak such as knowing the organization's lines of division, as well as the spheres of responsibility for different employees in particular areas within Amtrak. (See id.) Bacchus testified that relationships within Amtrak means establishing professional networks within various parts of the organization. (See id. at 30-31.)

According to Bacchus, the ability of the Employee Services SBU managers to bring all of these attributes together was necessary because a large part of the job with so many people and one person doing it is being able to reach out and bring the appropriate people together to expedite things getting done. And part of the job is to remove the logjams that are there. So necessarily in order to avoid them you have to know what they are, and that's what I mean by the network pieces. Who can I call with this problem? Who can get it done right now?

(Id. at 31.) Bacchus believed that the Employee Services SBU manager's networking capability was "absolutely critical" to the job, and that the SBU managers would need to use discretion, good judgment and maturity in dealing with individual personalities. (See id. at 33.)

Ramirez testified in his April 2002 deposition that, with respect to the NEC, Intercity and West manager positions, he and Bacchus discussed having a diverse group of managers:

In this particular position -- and I'm saying all three positions -- we were hoping to have a diverse group.. . .

[W]e were hoping that . . . we would have a nice mix. You know, it would help the diversity issue, a mix of -- you know, taking into account gender and race and national origin. And that's a general subject that is discussed with hiring managers all the time. (Walfoort Decl., Ex. 13 at 124-25.) Bacchus testified during her deposition that diversity was not an issue and that the topic never came up in discussions with Ramirez. (See id., Ex. 16 at 60.)

In January 2000, Bacchus selected Carolyn Janet Harvey for the Employee Services Intercity Manager position. (See Defs.' Stmt. Fact ¶ 72; Ford Decl., Ex. 18.) Harvey is an African-American female and was 51 years old when Bacchus selected her for the position. (See Defs.' Stmt. Fact ¶ 72.) Bacchus selected Harvey because she "had been around . . . about 28 years or so. She knew literally . . . every organizational reference change. She knew the people. She knew the politics. She knew the culture." (Ford Decl., Ex. 13 at 58; see Defs.' Stmt. Fact ¶¶ 73, 74.) Bacchus also hired the Employee Services West Manager in January 2000, selecting Robin Brown for the position. (See Defs.' Stmt. Fact at ¶ 75; Ford Decl., Ex. 19.) Brown, an African-American female who was 36 years old at the time Bacchus selected her, had been employed by Amtrak for about 18 years. (See Defs.' Stmt. Fact at ¶ 75; Ford Decl., Ex. 13 at 58-59.) Bacchus characterized Brown's knowledge of Amtrak as similar to that of Harvey, and stated that Brown "knew [the Western Region] inside out" and was "well respected[.]" (Ford Decl., Ex. 13 at 59.) Amtrak confirmed Harvey's and Brown's selections by letters dated January 7, 2000, and indicated that their promotion date would be January 16, 2000. (See id., Ex. 18 and Ex. 19.)

Amtrak posted the NEC Manager job listing on two occasions, from October 7 to October 14, 1999, and from January 26 to February 2, 2000. (See id., Ex. 15.) Plaintiff, along with four other candidates, interviewed for the NEC Manager position in December 1999. (See Defs.' Stmt. Fact ¶ 78.) She met with Bacchus and Michael Ramirez on December 16, 1999. (See Defs.' Stmt. Fact ¶ 62; Ford Decl., Ex. 15.) According to Bacchus, plaintiff was her lowest ranking candidate for the NEC Manager position. (See Ford Decl., Ex. 13 at 45.) Bacchus believed that plaintiff's tenure of only "a couple of years" with Amtrak "showed . . . [in] her awareness about the organization itself . . .." (Id.) Bacchus testified that she was concerned about having to "probe more" to try to get complete answers from plaintiff to the interview questions. (See id.) Plaintiff's answers "just made [Bacchus] far less comfortable than was necessary" (id. at 46), and Bacchus felt that they were not in-depth or thoughtful. (See Defs.' Stmt. Fact ¶ 98; Ford Decl., Ex. 13 at 46-47.)

Ramirez also ranked plaintiff low in comparison to the other candidates interviewed in December 1999, placing her near the bottom of his list.*fn8 (See Ford Decl., Ex. 17 at 118; Defs.' Stmt. Fact ¶ 92; Pl.'s Stmt. Fact ¶ 92.) Ramirez testified that "[t]he skill sets that [plaintiff] possesse[d] weren't necessarily the skill sets that [they] were looking for specifically for the manager of employee services." (Ford Decl., Ex. 17 at 117.) According to Ramirez, he and Bacchus agreed that although plaintiff met the minimum qualifications for the position, she was not "considered the most highly qualified candidate." (Id.) Ramirez testified that he and Bacchus discussed plaintiff's "difficulty in responding to the questions in concise, clear answers" and that they "had to continuously rephrase questions or keep probing in order to elicit responses" from plaintiff. (See id.)

Plaintiff was notified on January 21, 2000, that she had not been selected for the NEC Manager position.*fn9 (See id., Ex. 16.) On January 24, 2000, Robert Dougherty, a white male Amtrak employee, interviewed for the NEC Manager position. (See Pl.'s Stmt. Fact ¶ 198; Ford Decl., Ex. 15.) Two days later, Amtrak re-posted the availability of the NEC Manager position (see Ford Decl., Ex. 15), and Dougherty formally submitted an application for the position around February 1, 2000. (See Walfoort Decl., Ex. 33.)

Amtrak employee Barry Warner also submitted an application for the NEC Manager position after the second job posting (see Ford Decl., Ex. 21), and completed his interview on February 11, 2000. (See id., Ex. 15.) Warner is a white male, was 52 years old in February 2000 and had been employed by Amtrak since 1976. (See Defs.' Stmt Fact ¶¶ 79, 80; Ford Decl., Ex. 15, Ex. 13 at 61, Ex. 20 at 1 and Ex. 21.)

Plaintiff asserts that Dougherty was offered the NEC Manager position and turned the offer down. (See Pl.'s Stmt. Fact ¶ 198.) On February 18, 2000, Ramirez sent Dougherty a letter confirming his rejection of an offer for the NEC Manager position.*fn10 (See Walfoort Decl., Ex. 34 ("We regret that you were unable to accept our offer for the position of Manager, Employee Services, Amtrak Northeast Corridor.").) That same day, Ramirez sent Warner a letter congratulating him on having been offered the NEC Manager position, confirming Warner's acceptance of the job offer, and notifying him that his promotion date would be March 1, 2000. (See id., Ex. 15.) According to Bacchus, she selected Warner because "[h]e had a knowledge of the entire organization . . . not limited to the corridor." (Ford Decl., Ex. 13 at 44.) Bacchus also believed Warner had "an extraordinary background in interviewing and investigations" and "a great desire to do the [NEC Manager] job." (Id.)

V. PLAINTIFF'S DEGENERATIVE ARTHRITIS CONDITION

Plaintiff claims to suffer from degenerative arthritis. (See Defs.' Stmt. Fact ¶ 10; Pl.'s Stmt. Fact ¶ 10.) Plaintiff admits that the condition did not interfere with her duties as an HR Consultant, but asserts that it caused her to use a cushioned chair at work and to have a slight limp on occasion. (See Defs.' Stmt. Fact ¶ 11; Pl.'s Stmt. Fact ¶ 11.) "At various times, [Porter and plaintiff] talked about [their] back problems" (Walfoort Decl., Ex. 6 at 233), and Porter "was aware that [plaintiff] periodically had pains" and knew that Amtrak provided her with an oversized chair. (Id. at 233-234.) Plaintiff asserts that she informed Porter in December 1999 that she needed surgery due to her degenerative arthritis condition. (See Pl.'s Am. Compl. ¶ 15; Pl.'s Opp'n at 42, 43.)

DISCUSSION

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). The record must be viewed in the light most favorable to the nonmoving party. See Aka, 156 F.3d at 1288.

The moving party carries the initial burden to either identify evidence that demonstrates the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), or "point[] to the absence of evidence proffered by the nonmoving party." Baker v. Potter, 294 F. Supp. 2d 33, 38 (D.D.C. 2003). Summary judgment is inappropriate if a reasonable factfinder could find in the non-moving party's favor. "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.'" McCain v. CCA of Tenn., Inc., 254 F. Supp. 2d 115, 119 (D.D.C. 2003) (citation omitted); see Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) ("[M]ere unsubstantiated allegation . . . creates no 'genuine issue of fact' and will not withstand summary judgment."); Sage v. Broadway Publ'ns, Inc., 997 F. Supp. 49, 53 (D.D.C. 1998) ("Conclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact."); Baker, 294 F. Supp. ...


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