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Ginger v. District of Columbia

March 5, 2007

SGT. JAMES E. GINGER, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Eight Canine Unit officers have brought suit against the Metropolitan Police Department ("MPD") claiming race discrimination, retaliation, and a hostile work environment based on a reorganization of the unit that occurred in 2003. Pending before the Court is Defendants' Renewed Motion for Summary Judgment. Upon careful consideration of the motion, response and reply thereto, the applicable law, and the entire record, the Court grants defendants' motion.

I. BACKGROUND

Plaintiffs are eight District of Columbia Metropolitan Police Department officers employed in the Canine Unit of the Special Operations Division. Am. Compl. ¶¶ 4-5; Def. District of Columbia's Statement of Material Facts as to Which There is No Genuine Issue ("Defs.' Facts") ¶9.*fn1 Plaintiffs James E. Ginger, Paul E. Hustlar, Michael J. Lewis, Bernard D. Richardson, Mark W. Wood, Robert M. Wigton, and Roy Potter are white. Am. Compl. ¶ 4. Plaintiff Sean S. LaGrand is African American. Id. ¶ 5. All of the plaintiffs were members of the same squad within the Canine Unit (Squad 2) and supervised by Sergeant Ginger prior to the Department's reorganization of the entire Canine Unit, which was announced in March 2003. Defs.' Facts ¶¶ 9, 44.

Prior to its reorganization, the Canine Unit was divided into four squads, each with a sergeant as a supervisor. Id. ¶ 8. Squad assignments were based on individual preferences and seniority. See id. ¶ 16.*fn2 Two of the squads worked the midnight shift (8:00 p.m. to 6:00 a.m.) and two of the squads worked the day shift (10:00 a.m. to 8:00 p.m.) Id. ¶ 13. Squad 2 worked the midnight shift. Id. On March 6, 2003, Cathy Lanier, Commander of the Special Operations Division, issued a memorandum announcing that the MPD was going to reorganize the Canine Unit so that all canine officers would work five eight-hour shifts per week instead of four ten-hour shifts and would rotate through different shifts instead of being assigned to a permanent day or night shift. Defs.' Facts ¶ 44.

Plaintiffs allege that the reorganization occurred because of a perception that Squad 2 was "too white" and because of a concern about how the media would react to a mostly white squad whose victims were mostly black. Am. Compl. ¶ 11. Plaintiffs dispute the MPD's proffered reasons for the reorganization, including the need to increase supervision, equalize workloads of squads, reduce exposure of certain squads to high-risk canine activities, ensure coverage during high-crime times, and distribute seniority more evenly across the Canine Unit. Defs.' Facts ¶¶ 44-58. Plaintiffs instead claim that political pressure drove the defendants to break up Squad 2 in order to spread out canine bites among a more diverse officer population. Id. Prior to the reorganization, an analysis performed by an Independent Monitor selected by the Department of Justice and the MPD revealed that 11 out of 17 bites (65%) occurred with handlers in one squad -- Squad 2. Am. Compl. ¶ 9; Defs.' Facts ¶ 29. The analysis also revealed that Squad 2, which was involved in the majority of the bites, had a racial makeup that is predominantly white male -- 6 out of 7 officers and the sergeant are white males. Am. Compl. ¶ 9.*fn3

II. DISCUSSION

A. Standard of Review

This case is before the Court on defendants' renewed motion for summary judgment. Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Employment Discrimination*fn4

Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Where there is no direct evidence of discrimination, the Court applies the McDonnell Douglas burden-shifting framework under which the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff successfully establishes a prima facie case, the burden shifts to the defendant employer "to articulate some legitimate, non-discriminatory reason" for the employment action. Id. If the employer meets it burden, the burden then shifts back to the plaintiff to "prove by a preponderance of the evidence that the [employer's] proffered reasons are a pretext for discrimination." Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The McDonnell Douglas framework was "never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).

The "central focus of the inquiry" in such cases "is always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex, or national origin.'" George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005) (quoting Furnco, 438 U.S. at 577) (internal quotation marks and citations omitted). In this case, all officers in the Canine Unit were equally affected by the reorganization in that all officers were required to work rotating shifts regardless of race. Without any showing of disparate treatment, there is no discrimination in this case.

To make out a prima facie case of disparate-treatment discrimination, a plaintiff 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." George, 407 F.3d at 412 (internal quotation marks and citations omitted). The Title VII plaintiff "carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on discriminatory criterion illegal under the Act.'" Furnco, 438 U.S. at 476 (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). The plaintiffs in this case have failed to even meet their initial burden.

1. Membership in a Protected Class

Plaintiffs allege that the MPD discriminated against them by reorganizing the entire Canine Unit as a result of Squad 2 being "too white."*fn5 In reverse discrimination cases, a plaintiff must do more than simply show that he is white in order to make out the first prong of a prima facie case of discrimination. Mastro, 447 F.3d at 851. A majority-group plaintiff alleging employment discrimination must show "additional background circumstances that support the suspicion that the defendant is that unusual employer that discriminates against the majority." Id. (quoting Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993)). The "background circumstances" requirement "'substitutes for the minority plaintiff's burden to show that he is a member of a racial minority.'" Id. (quoting Harding, 9 F.3d at 153).

To demonstrate background circumstances, a plaintiff must provide evidence from one of the following categories: (1) evidence indicating that the employer "'has some reason or inclination to discriminate invidiously against whites'";*fn6 or (2) evidence indicating that "'there is something "fishy" about the facts of the case at hand that raises an inference of discrimination.'"*fn7 Id. (quoting Harding, 9 F.3d at 153). However, the burden of establishing "background ...


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