The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Renee Kennedy, a Metropolitan Police Department employee, brings this action against the District of Columbia (the "District") alleging that it discriminated against her on the basis of her race during the course of her employment. Specifically, plaintiff alleges that the District's failure to appoint her as the Acting Program Manager of the Directive Development Unit and its subsequent failure to promote her as the Permanent Program Manager of the Directive Development Unit violated 42 U.S.C. § 1981 (Counts I and III) and the District of Columbia Human Rights Act, D.C. Code §§ 2-1401.01 to 2-1411.06 (Counts II and IV). Currently before the Court is the District's motion for summary judgment. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court grants the District's motion.
Plaintiff Renee Kennedy, a black female, was appointed to the Metropolitan Police Department ("MPD") in 1992. Statement of Undisp. Facts ("Statement") ¶ 1. From October 1994 to January 2005, plaintiff held the position of Senior Technical Writer in the Directive Development Unit ("DDU") of the Office of Organizational Development ("OOD"). Id. ¶ 3. As a Senior Technical Writer, Kennedy was supervised by Mary Ann Rogers ("Rogers"), who was the Director of the Directive Development and Accreditation Division. Id. ¶ 4. Whenever Rogers was out of the office, Kennedy claims she would stand in for Rogers, would attend meetings in her place, and would perform some of her supervisory responsibilities. Pl.'s Opp. at 2.
In the fall of 2004, OOD was reorganized and several changes occurred. Rogers' position was abolished, and she was appointed as the Executive Manager of the Legal Training and Review Unit at the Institute of Police Science ("IPS"). Statement ¶¶ 5-6. Prior to her scheduled transfer, Rogers asked MPD Chief Administrative Officer Nola Joyce ("Joyce") to permit Kennedy to transfer with her to IPS. Joyce approved Kennedy's transfer but was unable to provide a specific date upon which the transfer would be effective. Id. ¶ 4. On October 8, 2004, Kennedy sent a follow up e-mail to Joyce "formally requesting a release date from the Directive Development, Accreditation and Risk Management Unit to be reassigned to the Training Academy." Def.'s Ex. B at 1.
On October 18, 2004, Debra Hoffmaster ("Hoffmaster") was appointed to the position of Senior Executive Director of the Policy and Program Development Division, and Hoffmaster appointed Jo Hoots ("Hoots"), a white female, to the position of Acting Program Manager for DDU. Statement ¶¶ 13-14. Plaintiff believes that she should have been next in line for this promotion based upon her knowledge and her years of experience in DDU writing directives. Pl.'s Opp. at 2. After Hoots was appointed, Kennedy continued to make several inquires requesting a release date from DDU to IPS. In response to her inquiries, Kennedy was instructed to develop a transition plan that would minimize the impact of her departure and would resolve her outstanding work obligations. Statement ¶ 12.
Around this time, Hoffmaster asked Kennedy to stay in DDU. Hoffmaster told Kennedy that they would create a position for her as an editor, which would involve supervising lieutenants. Id. ¶¶ 16-17; Def.'s Ex. A at 13:16-22. Kennedy declined the offer to stay in DDU, told Hoffmaster that she could not work under Hoots, and indicated that there was no potential for a promotion in DDU. Statement ¶ 18. Kennedy wanted to transfer to IPS to "have more potential to grow, to develop, [and] to be in charge of programs." Def.'s Ex. A at 14:17-20. Therefore, Kennedy continued to work on the transition plan. After the transition plan was completed, Hoffmaster and Hoots agreed to release Kennedy to IPS on November 1, 2004. Statement ¶ 21. As she was instructed, Kennedy prepared a formal memo requesting a transfer to IPS and began packing up her office. On October 29, 2004, however, Kennedy was informed that she could not transfer to IPS until a position in IPS became vacant and available. Id. ¶ 29.
Kennedy was later told that she would remain assigned to DDU in the meantime and that Hoots would be her supervisor. Id. ¶¶ 30-31. Kennedy objected to Hoots' supervision since they were both the same pay grade, and Kennedy raised this concern with Hoffmaster. Id. ¶ 36. In response, Hoffmaster formally instructed Kennedy that Hoots and another DDU employee, Lieutenant Patricia Shahid ("Shahid"), would in fact be her supervisors. When Hoffmaster added Shahid as a supervisor, Kennedy also objected because she had previously trained Shahid in DDU and because she believed that Shahid was the same grade that she and Hoots were -- Grade 13. Id. ¶¶ 37-39.
Kennedy asked Deputy Chief Administrative Officer Sampson Annan ("Annan") if there was a policy governing such a line of supervision, and he indicated that he would get back to her with an answer. Kennedy claims that she called the personnel office that same day and was told that a Grade 13 could not supervise another Grade 13 even though there was no such policy in writing. Pl.'s Ex. A at 30:19-31:12. Around that time, Shahid and Hoots asked Kennedy to meet with them, and Kennedy responded that she was waiting for a formal answer from Annan to confirm if either of them could act as her supervisors without violating D.C. or MPD policies. Statement ¶¶ 40-41. Shortly thereafter, Kennedy received a verbal warning of insubordination for failing to meet with her supervisors, Hoots and Shahid. Id. ¶ 42.
In December 2004, Kennedy received an e-mail explaining that office changes were going to occur in DDU. Id. ¶ 47. Kennedy claims that her office was going to be relocated "from where it was to where the officers that she had trained were." Pl.'s Opp. at 8. Kennedy sent an e-mail to Hoffmaster, Annan, and Joyce requesting a meeting about the relocation, and the office move was postponed. Statement ¶ 54. Later in December, for the week of December 27, 2004, Kennedy was made the Acting Program Manager while Hoots was out of the office. Pl.'s Opp. at 8.
Kennedy appealed her insubordination charge to Annan, and Annan responded on January 4, 2005, saying that the Permanent Program Manager position had been established and that Hoots, as the Acting Program Manager, could supervise Kennedy while she held that position. Statement ¶ 56. In response to Annan's e-mail, Kennedy argued that if Hoots' position was just established, Hoots should have lacked the authority to supervise Kennedy for the past two months. Kennedy also expressed concern about not seeing a job announcement for the Permanent Program Manager position and argued that since Hoots had been acting in a position that had not been established up until that point, the fact that Kennedy was told that she could not be moved to IPS because there was no position was "null and void." Id. ¶ 57. Annan told Kennedy that the Chief of Police could detail people to positions to accomplish the goals of the Department and that there was nothing unusual about Hoots acting in a position that was being established. Id. ¶ 58.
On January 11, 2005, Kennedy's request to transfer to IPS was approved with a transfer date of January 23, 2005. Kennedy transferred on the assigned date and began working under Rogers once again. Id. ¶¶ 61-64. One day later, on January 24, 2005, Kennedy sent a letter to the Mayor, the Metropolitan Police Department, and the Office of the Attorney General claiming that the District had violated her rights when she was not made the Acting Program Manager of DDU. Id. ¶ 66. Kennedy subsequently filed this action against the District on February 1, 2005. In her initial complaint, Kennedy claimed that the District's failure to promote her to the Acting Program Manager position constituted racial discrimination in violation of 42 U.S.C. § 1981 and the District of Columbia Human Rights Act ("DCHRA"). Compl. ¶¶ 41-52.
Later in February 2005, the MPD issued the vacancy announcement for the Permanent Program Manager position that Hoots had occupied in an acting capacity since October 2004. Only Kennedy and Hoots applied for the permanent position. Statement ¶¶ 69-73. After the Staffing Specialist received the applications, he determined that both applicants were qualified and forwarded both applications to Hoffmaster, the selecting official. Id. ¶¶ 74-76. Hoffmaster then conducted a paper review of the applications and resumes, and Hoffmaster selected Hoots for the Permanent Program Manager position on March 3, 2005. Id. ¶¶ 77-78. Kennedy was advised that she had not been selected for the position, and on May 2, 2005, Kennedy filed an amended complaint in this Court to include claims arising out of the District's failure to promote her to the Permanent Program Manager position. See Am. Compl. ¶¶ 57-68.
The District has moved for summary judgment on all counts of plaintiff's amended complaint. The District argues that plaintiff's DCHRA claim regarding the Permanent Program Manager position is barred by the mandatory notice provision of D.C. Code § 12-309, that plaintiff cannot bring a claim under 42 U.S.C. § 1981 because she lacks an employment contract, that, in any event, plaintiff cannot establish a prima facie case of racial discrimination, and that the District had legitimate nondiscriminatory reasons for failing to promote Kennedy to either position. The Court agrees that summary judgment is warranted for the District on all counts of plaintiff's amended complaint.
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 party seeking summary judgment bears the initial responsibility of demonstrating the absence of a 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)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make 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 the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 ...