SUPPLEMENTAL MEMORANDUM OPINION*fn1
The plaintiff, Edward Harris, brought this action against the defendant, Wackenhut Services, Inc. ("Wackenhut"), pursuant to the District of Columbia Human Rights Act ("Human Rights Act"), D.C. Code §§ 2-1401.01(a)(1), 2-1402.11(a)(1), and 2-1402.61(a) & (b) (2001), asserting claims of having been subjected to (1) a hostile work environment because of his race; (2) disparate treatment based on his race; (3) retaliation; and (4) constructive discharge. Complaint ("Compl.") at 14-16. Specifically, the plaintiff's complaint as pled alleges that the defendant subjected him "to a hostile work environment and constructively discharged him by discriminatorily demoting him and depriving him of his supervisory responsibilities over approximately 1,000 employees and retaliating against him for opposing senior management's discriminatory treatment of [the] [d]efendant's African American employees." Compl. at 2. On September 28, 2007, the Court issued an Order resolving the parties' cross-motions for summary judgment, granting in part and denying in part the defendant's motion, and denying the plaintiff's motion for partial summary judgment. The Court followed that Order with a Memorandum Opinion, issued on December 9, 2008. Following the resolution of the cross-motions for summary judgment, the case proceeded with the scheduling of a pretrial conference.
In preparing for the pretrial conference and as a result of the discussions at that conference the Court came to the realization that there were several outstanding issues in need of resolution before this case could proceed to trial. Those issues include: (1) whether the defendant's summary judgment motion challenged the adequateness of the plaintiff's showing of pretext, and thus left an unresolved issued; (2) whether the jury should consider as support for the plaintiff's racial discrimination claim evidence of alleged discriminatory acts outside of the one-year statute of limitations; (3) whether the plaintiff adequately alleged in his complaint that he was discriminated against based on his opposition to the racial discrimination of others in a protected class; and (4) whether the plaintiff can seek compensatory damages based on the defendant's alleged injury to his career and reputation.*fn2 At the Court's request, each party filed written submissions setting forth their legal basis for their respective positions on each issue and made oral representations at both the Pretrial conference and the August 10, 2009 hearing at which the Court orally resolved the pending motions in limine.*fn3 Upon consideration of the parties' written submissions, the evidentiary record presented to the Court, the applicable legal authority, the oral arguments presented by the parties, and in accordance with the oral reasons expressed by the Court at the hearing on the motions, the Court finds that it indeed failed to address an issue raised by the defendant in its summary judgment briefing, i.e., whether the plaintiff made a sufficient showing of pretext to defeat the legitimate, non-discriminatory reason proffered by the defendant for its decision to transfer the plaintiff. Now, having considered the question, for the reasons set forth in this Supplemental Memorandum Opinion the Court finds that summary judgment must be entered in favor of the defendant, thus resolving the one claim remaining in this case. This conclusion takes into account, inter alia, the Court's finding that the plaintiff did not properly allege in his complaint that he was personally discriminated against based on his race due to his opposition to the discrimination allegedly directed against his predominantly African-American staff; in fact, no such theory is actionable under the Human Rights Act as the basis for a racial discrimination claim, as opposed to a claim for retaliation or coercion.*fn4
The facts of this case are set forth thoroughly in the Court's December 9, 2008 Memorandum Opinion addressing the parties' cross-motions for summary judgment, which are incorporated by reference herein. However, because the Court is revisiting some of the issues addressed in that Memorandum Opinion upon further review of the arguments presented in the defendant's motion, a brief summary of the defendant's motion and the Court's decision is necessary.
1. The Defendant's Basis For Summary Judgment on the Plaintiff's Discrimination Claim
In its motion for summary judgment, the defendant argued that it was entitled to the entry of summary judgment as a matter of law, in part because some of the alleged discriminatory conduct occurred outside of the statute of limitations period, and in part because the acts complained of did not establish a hostile work environment, or amount to either discrimination or retaliation. See generally Wackenhut Services, Inc.'s Memorandum In Support Of Its Summary Judgment Motion ("Def.'s Mem."). Specifically, the defendant's primary argument for why the plaintiff's racial discrimination claim was not legally sustainable was because "Wackenhut treated Plaintiff the same as it treated similarly situated white employees[,] [and] [t]hus, no reasonable jury could infer discrimination." Id. at 29. The defendant further argued that its decision to transfer the plaintiff was made for "legitimate non-discriminatory business reasons," and relied on case law stating that no claim could lie where there was "'no objective evidence to suggest that the adverse actions taken against [a plaintiff] occurred because of [his] race, nor that similarly situated individuals of other races were treated differently.'" Id. at 29-30 (quoting Lemmons v. Geo. Univ. Hosp., 431 F. Supp. 2d 76, 88 (D.D.C. 2006)). The remainder of the defendant's argument pertained to the alleged absence of any evidence that a constructive discharge occurred. Id. at 30-31. In going through this constructive discharge analysis, the defendant reiterated its position that "Wackenhut did not discriminate against [the] [p]laintiff," again citing Lemmons for the proposition that a claim for constructive discharge, like a claim for hostile work environment, "'require[s] the plaintiff to prove the existence of intentional discrimination.'" Id. at 31 (quoting Lemmons, 431 F. Supp. 2d at 91 n.16).
The plaintiff opposed the defendant's motion, rejoining that, in fact, his claim of racial discrimination could be sustained on his allegations and the record, and the defendant's rationale for transferring him was merely a pretext for illegal discrimination. See Plaintiff's Memorandum In Oposition [sic] To Defendant's Motion For Summary Judgment at 26-29. In its reply, the defendant mainly reiterated its previous arguments, but added that the "[p]laintiff [did] not dispute the legitimate good faith reasons for the transfer that Wackenhut details in its Statement of Material Facts not in Dispute," and because the defendant's rationale for transferring the plaintiff to a new position was justified on a non-racially motivated basis, "no reasonable jury could infer that Wackenhut discriminated against [the] [p]laintiff." Reply to Plaintiff's Opposition to Wackenhut Services, Inc.'s Summary Judgment Motion at 12-14.
2. The Court's Resolution of the Defendant's Motion For Judgment on the Plaintiff's Discrimination Claim
In responding to the defendant's challenge to the plaintiff's racial discrimination claim, the Court in its earlier summary judgment opinion, which is incorporated by reference herein, first set forth the familiar burden-shifting analysis required to establish a claim for racial discrimination under the Human Rights Act. Dec. 9, 2008 Memorandum Opinion at 23-25. The first stage of this analysis, reflected the Court, requires a plaintiff to establish that "'he is a member of a protected class, . . . he suffered an adverse employment action, and . . . the unfavorable action [gave] rise to an inference of discrimination.'" Id. at 25 (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). Undertaking that analysis, the Court determined that "regardless of whether the plaintiff's impending reassignment is characterized as a lateral transfer or a demotion, the determination of whether it amounted to an adverse employment action raise[d] a genuine issue of material fact that must be submitted to a jury," and denied in part the defendant's motion for summary judgment on the plaintiff's racial discrimination claim on that basis. Id. at 27, 29. However, as to "the plaintiff's allegations concerning the racial jokes and comments made to him or in his presence by the defendant's employees, the Court [found] that the plaintiff [had] not presented sufficient evidence to establish that the jokes or comments rose to the level of adverse employment actions" and granted in part the defendant's motion as to those allegations. Id. at 29-30.
3. Rationale for Revisiting the Previous Decision
Based on its finding that a question of material fact existed at the first stage of the burden-shifting analysis, the Court did not advance its analysis to the question of whether an inference of discrimination could be sufficiently found upon the evidentiary record before it. Nor did the Court go on analyze the two additional stages of the test, namely, whether the defendant proffered a legitimate, non-discriminatory rationale for its decision, and if so, whether the defendant's proffered non-discriminatory rationale was a pretext for discrimination to conceal its true unlawful discriminatory motivation. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Upon further review of the defendant's motion for summary judgment, which, in fact, although however summarily, raised the issue of the inadequacy of the evidence for establishing discriminatory pretext through its reliance on passages from the Lemmons case, the Court now concludes that it erred in ceasing its analysis at the first stage of the burden-shifting test. In doing so, the Court misplaced its focus on the plaintiff's immediate burden, the first stage of the burden-shifting framework, and lost sight of the plaintiff's ultimate burden: establishing with admissible evidence that the defendant engaged in intentional racial discrimination against him. See Burdine, 450 U.S. at 253 ("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.").
However untimely, having now recognized this shortcoming -- made all the more evident upon reflection of the discussions engaged in during the pretrial conference and the August 10, 2009 hearing -- the Court will now conduct that analysis and resolve the question of whether the plaintiff can establish that racial discrimination occurred on the record before it. In so doing, the Court will also address a related issue on which it sought supplemental briefing -- whether the plaintiff adequately alleged in his complaint that he was discriminated against based on his opposition to the racial discrimination of others in a protected class -- as well as the defendant's motion in limine seeking to exclude stray comments by a handful of high-level executives in the defendant's employ that the plaintiff asserts are relevant to his claim for racial discrimination.
As the Court stated in its December 9, 2008 Memorandum Opinion, summary judgment pursuant to Federal Rule of Civil Procedure 56 should be awarded to the movant 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). In evaluating the appropriateness of summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)), accepting the non-moving party's evidence as true and drawing "all justifiable inferences" in the non-moving party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court need not rely on any "conclusory allegations unsupported by factual data," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted), and should only find that "there is [a] [genuine] issue for trial [where] there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted). Moreover, as the Supreme Court observed in Anderson v. Liberty Lobby, Inc., evidence that is "merely colorable . . . or . . . not significantly probative" is insufficient to defeat summary judgment. Anderson, 477 U.S. at 249.