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Blyden A. Davis v. Joseph J. Magnolia

September 30, 2011


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


Plaintiff Blyden A. Davis, an African-American male, has filed discrimination and retaliation claims against defendant Joseph J. Magnolia, Inc., his former employer, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01 et seq. Pending before the Court is defendant's motion for summary judgment on all claims. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, and for the reasons stated herein, the Court hereby GRANTS IN PART AND DENIES IN PART defendant's motion for summary judgment.


Plaintiff was hired by defendant in April 2005 as a heavy equipment operator working at construction job sites. Soon after being hired, plaintiff received two or three oral warnings in May 2005 concerning his inability to operate heavy equipment, followed by a written warning issued on June 2, 2005. The written warning, issued by plaintiff's supervisor at the time, Fred Wedding, stated that plaintiff "was hired as a heavy equipment operator with 10 years of previous experience. However, over the course of a month, Mr. Davis has proven to be uncapable [sic] of operating heavy machinery at this site."

Def.'s Ex. 8. Plaintiff signed the warning and indicated he "agree[d] with the employer's statement." Def.'s Ex. 8. Another written warning dated June 8, 2005 issued by John Kulp, the Director of Site Utilities, similarly stated that plaintiff "is unable to perform the task of operating equipment as needed" and that plaintiff would be transferred to a different crew at a reduced rate of pay. Def.'s Ex. 9. The June 8 warning also stated that "if [plaintiff's] actions do not i[m]prove, with new crew we may let him go." Def.'s Ex. 9.

Plaintiff was assigned to a new crew, this one supervised by Foreman Jeff Forsythe. Plaintiff alleges that while working on this crew, in July 2005, a fellow employee informed him that Forsythe had referred to plaintiff as a "nigger." Compl. ¶ 13; Def.'s Ex. 10. Plaintiff made an internal complaint regarding Forsythe's allegedly discriminatory conduct on October 17, 2005. Def's Ex. 10. Defendant conducted an investigation and interviewed plaintiff, Forsythe, and other members of the crew. Following the investigation, Forsythe received a written warning on November 19, 2005. Def.'s Ex. 12. The warning indicates a "violation of company policy/procedures" and "unsatisfactory behavior towards employees or customers." Def.'s Ex. 12.

On November 2, 2005, while still working on Forsythe's crew, plaintiff received another written warning. This warning stated that plaintiff had been insubordinate and violated company policies by failing to take a required training class. Specifically, the warning stated that plaintiff "did not want to attend traffic flagging safety class. Jeff Forsythe had to ask[] several times before [plaintiff] attended training class. [Plaintiff] would not take the written test after the class was completed. Mark Tavenner [defendant's Safety Director] was teaching the class & has documented this issue. This is final warning before discharge." Def.'s Ex. 14. Plaintiff concedes that he received this warning, but he asserts that the warning was undeserved because - although he did not take the written test in November 2005 - he did attend the class itself. Plaintiff also argues that the November 2005 warning was undeserved because he had taken the traffic flagging safety course on another occasion. In December 2005, after plaintiff had made the internal complaint regarding Forsythe and after the incident related to the flagging course, plaintiff was transferred to a third crew, supervised by Foreman George Shegogue.

On January 6, 2006, plaintiff filed a complaint with the District of Columbia Office of Human Rights ("DCOHR"), alleging discrimination on the basis of race, as well as retaliation. Def.'s Ex. 15.

Two more incidents occurred before plaintiff was terminated. On January 30, 2006, plaintiff received a written warning for failing to report an accident which caused damage to equipment. Def.'s Ex. 17.*fn1 Subsequently on April 25, 2006, plaintiff was involved in an altercation at a job site. Though the parties disagree on the particulars, it is undisputed that plaintiff was involved in some kind of disagreement at a job site with one of defendant's customers, the general contractor at the job site. According to plaintiff, after an employee of the general contractor repeatedly did not move a truck out of plaintiff's way, plaintiff became "agitated" or "upset" and asked the general contractor's employee to move the truck before plaintiff "hit it" with the vehicle plaintiff was operating. Def.'s Ex. 21; Def.'s Ex. 24. In an email plaintiff sent on April 28, 2006, plaintiff explained the incident as follows:

I had asked one of the supers to have his friend move his truck out of our way 5 times. . . . [E]ach time I asked I did become more agitated. The last time I said "Come on move the truck before I slam the machine into it" (accidentally of course). Well I was kinda pissed off so I stopped my machine and asked them where my cat key was which I had let them borrow the previous day 4/26/06. they told me it was on the machine so I retrieved it and went about my business.

Def.'s Ex. 24. Defendant, relying on the testimony of another witness, asserts that plaintiff also yelled into the trailer belonging to the superintendent: "Are you going to move this shit or what." Def.'s Mem. 7.

It is also undisputed that after the incident at the job site, plaintiff's supervisor George Shegogue told plaintiff to report to the office the next day for a meeting with Kulp. At that meeting, Kulp informed plaintiff that the general contractor had demanded that plaintiff be permanently removed from its job site. The parties further agree that defendant then conducted an investigation of the general contractor's allegations, at which time plaintiff provided defendant with a written statement. Def.'s Ex. 21. At the conclusion of the investigation, and despite an otherwise favorable performance review from Shegogue, defendant terminated plaintiff on May 3, 2006. The termination report listed several reasons for the termination, including: 1) "insubordinately refused to take safety course," 2) "dishonest[l]y failing to report at fault accident w/ property damage," 3) "morale and conduct unbecoming," 4) "solicitation of employment to another contractor," and 5) "performance was bad enough that super had to remove him before [he] could cause physical altercation amongst contractors." Def.'s Ex. 25.

After he was terminated, plaintiff amended his complaint with DCOHR to reflect his termination, asserting that the termination was motivated by unlawful retaliation. Def.'s Ex. 26. In a Letter of Determination dated November 28, 2006, DCOHR found no probable cause to believe defendant subjected plaintiff to discriminatory conduct or retaliated against plaintiff.

Def.'s Mem. Ex 27. The EEOC issued a Dismissal and Notice of Rights on November 19, 2007 stating that the EEOC "adopted the findings of the state or local fair employment practices agency that investigated this charge." Def.'s Ex. 28. On February 20, 2008, plaintiff initiated this lawsuit.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Though the Court must draw all justifiable inferences in favor of the non-moving party in deciding whether there is a disputed issue of material fact, "[t]he mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted).


A.Statute of Limitations: D.C. Code § 2-1403.16(a)

Plaintiff's DCHRA claims are time barred. D.C. Code § 2-1403.16(a) provides that "[a] private cause of action pursuant to this chapter shall be filed in a court of competent jurisdiction within one year of the unlawful discriminatory act[.]" Id. Plaintiff argues that the statute of limitations was tolled because he filed an administrative complaint, but § 2-1403.16(a) provides only that "[t]he timely filing of a complaint with the [District of Columbia Office of Human Rights] . . . shall toll the running of the statute of limitations while the complaint is pending." Id. (emphasis added).

Plaintiff filed his administrative complaint in January 2006, and on November 28, 2006 the DCOHR issued a Letter of Determination finding "no probable cause" to believe that plaintiff was subjected to a hostile work environment or retaliation. The Letter of Determination explicitly informed plaintiff that the OHR had "completed the investigation of [his] complaint." Def. Ex. 27 at 1. The Letter of Determination further stated that plaintiff could apply to the Director of the OHR for reconsideration within 30 days and explained that if plaintiff "does not file a request for reconsideration with the OHR, this letter constitutes a final decision from OHR." Def. Ex. 27 at 12. Plaintiff did not apply for reconsideration of the DCOHR's decision.

The Court concludes that plaintiff's complaint was no longer "pending" with the DCOHR as of November 2006. Because plaintiff did not commmence this action until February 20, 2008, the one year statute of limitations bars plaintiff from pursuing the DCHRA claims. ...

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