MEMORANDUM OPINION AND ORDER
This case is brought under the Family and Medical Leave Act, 29 U.S.C. § 2601 et. seq. ("FMLA") and the District of Columbia Family and Medical Leave Act, D.C. Code § 32-501 et. seq. ("DCFMLA") (together, "Acts"). Plaintiff Reginald L. Butler ("Butler") alleges that defendant District of Columbia Housing Finance Agency ("DCHFA") retaliatedagainst him and interfered with his rights under the Acts because he took a period of leave to care for his mother and because, upon returning from that period of leave, he requested additional leave to care for his mother further. DCHFA has moved for summary judgment on all of Butler's claims [#17]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion should be denied.
Butler began working for DCHFA in 1981. By 2006, when the events that gave rise to this litigation took place, Butler had risen to the position of Director of Business Services. In this position, Butler's responsibilities included managing the cleaning and repair of the DCHFA facility and overseeing all ancillary services associated with the facility. Butler was also responsible for coordinating inspections and certifications, maintaining DCHFA vehicles, and handling the security and telephone systems. Important to this litigation, Butler directly supervised the employee responsible for opening the facility each day ("Ulmer"). In Ulmer's absence, it fell to Butler to either open the facility himself or to make arrangements for someone else to do so.
In June 2006, Harry Sewell was appointed Execute Director of DCHFA. During his first ninety days on the job, Sewell assessed the performance of the three employees who reported directly to him: Butler, Harry Alexander (General Counsel), and Francis Dyson (Executive Assistant). Concerning his evaluation of Butler's performance, Sewell testified that he considered the condition of the building, attendance at meetings, completion of assignments, and other similar items. In September 2006, Sewell provided each with an oral performance review.*fn1 Sewell gave Alexander a positive review, but Butler and Dyson received negative reviews.*fn2 Specifically, Sewell told Butler that the facility was not sufficiently clean and that Butler's performance had been unsatisfactory during the preceding three-month evaluation period.*fn3 Around this time, Sewell also discussed with Alexander that he was "was going down th[e] path" to terminate Butler because of his unsatisfactory performance and requested legal advice concerning that termination.
Sewell's dissatisfaction with Butler came to a head less than three weeks after Butler's performance review. On October 13, 2006, Butler planned to open the DCHFA facility himself because Ulmer was unable to do so. When Sewell arrived at DCHFA that day, however, he found a line of employees outside because neither the gate to the parking lot nor the building itself had been unlocked. Sewell unlocked the facility. According to Sewell, Butler's failure to open DCHFA for business that day was the "straw that broke the camel's back," and he immediately decided to terminate Butler's employment.*fn4 When Butler did arrive at work, Sewell told him that they needed to discuss his failure to open the facility that day, but they could not discuss it at that time because Sewell needed to attend a meeting. Butler sensed that Sewell was displeased with him.
Later that same day, October 13, Butler left early for a pre-planned period of leave. The facts surrounding Butler's leave are in dispute. Butler submitted a leave request that did not mention his mother's illness, and it is unclear when that request was submitted and approved.*fn5 Additionally, Butler contends that he left Sewell a voicemail explaining that he was taking leave beginning on October 14 to care for his sick mother. Butler contends that he gave a similar message to Sewell's assistant, in-person, and that he mentioned his mother's illness to Sewell earlier that day. Sewell, however, asserts that Butler never informed him of the leave request and that he had no idea Butler was taking leave to care for his mother. Sewell did not speak with Butler while he was on leave. After twice extending his leave, Butler returned to work on the afternoon of October 23. Because of these extensions, however, Butler missed a meeting he previously had scheduled with a vendor causing Sewell to attend the meeting alone.
Butler and Sewell first spoke following Butler's return from leave on October 25. During that conversation, Butler asked Sewell about the vendor meeting that he had missed. Sewell did not provide him with details and told Butler that he would handle it. Butler again sensed that Sewell was displeased with him. The following day, October 26, Sewell sent Butler an email asking him to confirm whose responsibility it was to open the parking lot and building each morning. Butler responded that he was ultimately responsible. That same day, Butler submitted a request for an additional 25 days of medical leave to care for his mother to the Human Resources Director ("Thomas"). Butler did not discuss this request for additional leave with Sewell. Thomas, however, transmitted the request form to Sewell for his approval later that same day.
The following morning, October 27, Sewell held a meeting with Thomas and Alexander and informed them that Butler would be terminated that day. There is some confusion in the record on the following point, but the court can discern that Thomas advised Sewell to the effect that Butler could not be terminated either because of his FMLA request or while on FMLA leave or both.*fn6 Sewell acknowledged Thomas's advice, but indicated that he would go ahead with the termination. These three men then held a termination meeting with Butler during which Sewell informed Butler that he was being terminated because of his unsatisfactory performance. Sewell provided Butler with a termination letter to that effect, which Alexander previously had prepared for Sewell's signature.*fn7 DCHFA did not hire anyone to replace Butler. His responsibilities were folded into an existing position.
This suit is based essentially on Butler's claims that DCHFA violated the Acts when Sewell terminated him because he took one week of leave and requested an additional 25 days of leave to care for his ill mother. The court agrees with Butler that DCHFA's motion for summary judgment devolves into a single straight forward issue: could a reasonable jury find that he was terminated because he took or requested protected leave rather than because of his unsatisfactory performance. See Aka v. Washington Hosp. Center, 156 F.3d 1284, 1290 (D.C. Cir. 1989). To decide this issue on summary judgment, the court must determine whether there is a genuine issue of material fact regarding what motivated Sewell's decision.
The court analyzes Butler's claims according to the familiar McDonnell Douglas framework. See Gleklen v. Democratic Congressional Campaign Comm., Inc., 199 F.3d 1365, 1367 (D.C. Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).*fn9 Under this framework:
(1) Butler must establish a prima facie case that DCHFA terminated him in violation of the Acts; (2) if Butler meets that burden, the burden shifts to DCHFA to articulate a legitimate, non-Acts-violating reason for his termination; and (3) if DCHFA meets its burden, the burden shifts to Butler to produce substantial evidence that DCHFA's proffered reason is merely a pretext for terminating him because he exercised his rights under the Acts. See id. at 1367-68.To establish a prima facie case, Butler must show: (a) he was engaged in an activity protected under the Acts; (b) he suffered an adverse employment action; and (c) the protected activity and the adverse employment action were causally connected. See id. at 1368 (citing Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999); see also Winder v. Erste, 511 F. Supp. 2d 160, 184 (D.D.C. 2007) (noting also that "the elements of a prima facie case are the same under both the federal and the DC FMLA . . . .").
DCHFA contends that Butler cannot establish a prima facie case because he cannot show causation.*fn10 And even if Butler could establish a prima facie case, DCHFA contends that it has articulated a legitimate non-Acts-violating reason for his termination; namely, that Sewell decided to terminate Butler on October 13 based solely on Butler's unsatisfactory performance, including his failure to open the facility for business that day, and long before Sewell knew anything about the reasons for Butler's leave or requested leave. Therefore, according to DCHFA, Butler cannot demonstrate pretext. Accordingly, DCHFA contends that Butler cannot establish that Sewell terminated him because he exercised (and sought to exercise further) his rights under the Acts. Butler counters that there are genuine issues of ...