The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
This case is before the Court on plaintiff Ernest Hunter's Motion for Summary Judgment ("Pl.'s Mot.") [Dkt. # 51], and defendant District of Columbia's ("District") Cross-Motion for Summary Judgment ("Def.'s Cross-Mot.") [Dkt. # 66]. This case was referred to Magistrate Judge Alan Kay for full case management, including preparation of a report and recommendation for any dispositive motions pursuant to Local Rule of Civil Procedure 72.3. On September 13, 2012, Magistrate Judge Kay issued his Report and Recommendation on the two motions, recommending that the Court deny summary judgment for Hunter and grant summary judgment for the District. Hunter filed timely objections. Because the Court finds that summary judgment is appropriate, it will adopt the Magistrate Judge's recommendation in full. It will also adopt the Magistrate Judge's report and incorporate it as part of this opinion.
Ernest Hunter was a contracts compliance officer in the Contracts and Procurement Administration ("CPA") within the District of Columbia Child and Family Services Agency ("CFSA") until he was terminated in May 2010 through what it called a reduction in force ("RIF"). Third Am. Compl. [Dkt. # 28] ¶¶ 5, 7, 34; Letter from Roque Gerald to Ernest Hunter (May 6, 2010), Ex. 37 to Pl.'s Mot ("RIF Notice). In this action, he complains about a number of employment-related events.
First, Hunter sought to enroll in the CFSA Alternative Work Schedule program ("AWS") on or about June 13, 2008. OHR Letter of Determination (May 26, 2009), Ex. 10 to Pl.'s Mot. ("OHR Letter") at 2. That request was denied on July 8 by email. Email from LaTonya Bryant to Ernest Hunter (July 8, 2008), Ex. B to Def.'s Cross-Mot. at 1. The reason given for the denial was that Hunter was ineligible for the schedule he had requested. Id. He reapplied to enroll in the AWS program in September, and that application was approved. OHR Letter at 4.
On July 1, 2008, while Hunter's first AWS request was pending, he submitted a letter to Ronnie Charles, the Senior Deputy Director for Administration of CFSA. Pl.'s Mem. of Law in Support of his Mot. for Summ. J. ("Pl.'s Mem.") [Dkt. # 51] at 4; Letter from Ernest Hunter to Ronnie Charles (July 1, 2008), Ex. 4 to Pl.'s Mot ("July 1 Letter"). In the letter, Hunter complained of "discrimination, cronyism, and mismanagement" within CFSA. July 1 Letter at 1--2. He also expressed his dissatisfaction with his most recent performance evaluation and with CFSA's AWS approval process. Id. That same month, Hunter sent an email to the "Hotline Inspector General" complaining of abuses of authority within CFSA, including "fraudulent funding documents." Pl.'s Mem. at 4.
A month later, on August 6, 2008, plaintiff wrote a second letter to Mr. Charles, expressing the same concerns contained in the first letter. See Letter from Ernest Hunter to Ronnie Charles (Aug. 6, 2008), Ex. 6 to Pl.'s Mot. ("August 6 Letter"). The next day, Hunter met with his immediate supervisor Catherine Higgins, Ronnie Charles, and the Supervisory Management Services Liaison, LaTonya Bryant, to discuss his second letter. Pl.'s Mem. at 4; OHR Letter at 5; Bryant Decl., Ex. H to Def.'s Mot at 1. The parties disagree as to why the meeting degenerated and who was at fault, but it is undisputed that the meeting became highly contentious. Pl.'s Mem. at 5; Def.'s Mem. of Points and Authorities in Support of Cross-Mot. for Summ. J. ("Def.'s Mem.") at 4. Latonya Bryant describes Hunter's behavior as "angry and agitated," "aggressive and belligerent." Bryant Decl. ¶¶ 6--7. His behavior was described by management as "erratic, hostile, and often explosive," and "aggressive toward the persons conducting the meeting, alternatively friendly and cordial one minute and blatantly disrespectful another." Letter from Stan Spaght to Ernest Hunter (Aug. 8, 2008), Ex. 14 to Pl.'s Mot. ("Fitness for Duty Letter") at 1.
After the meeting, Hunter sent an email to the Director of CFSA Roque Gerald, alleging that Charles and other managers were abusing their authority. Email from Ernest Hunter to Roque Gerald (Aug. 7, 2008), Ex. 8 to Pl.'s Mot. Hunter also reported he had already informed the Inspector General that CFSA management had falsified funding documents. Id.
Another meeting was held the next day. Pl.'s Mem. at 5; Def.'s Mem. at 4. The participants included Hunter, his union representatives, Ms. Higgins, and representatives from the Human Resources Department. Pl.'s Mem. at 5. At the meeting, Hunter was informed that he would be placed on a ten-day period of paid administrative leave pending his completion of a "fitness for duty" examination because of his behavior at the last meeting. Pl.'s Mem. at 5--6; Def.'s Mem. at 4--5. Hunter also informed those at the meeting about the complaints he had made to the Inspector General. Pl.'s Mem. at 7; Def.'s Mem. at 5.
Hunter was permitted to have his own physician administer the fitness for duty examination. Hearing before Mag. J., July 30, 2012. The exam took approximately ten minutes and Hunter was responsible for the co-payment for the appointment. Id. Hunter successfully completed the fitness for duty examination within the 10 day administrative leave period, and on August 18, 2008, he returned to his prior position. Pl.'s Mem. at 8--9; Def.'s Mem. at 5.
Hunter filed his original complaint in this Court on August 7, 2009. [Dkt. # 1]. After filing an official complaint with the D.C. Office of Human Rights and a complaint with the Equal Employment Office, both alleging gender discrimination and retaliation, Hunter filed an amended and second amended complaint in this case. [Dkt. # 3, 20]; see OHR and EEOC Charges of Discrimination, Ex. 24 to Pl.'s Mot.; Pl.'s Mem. at 9. Both administrative complaints were subsequently denied. OHR Letter of Determination, Ex. 10 to Pl.'s Mot.; OHR Notice of the Right to File a Discrimination Complaint, Ex. 22 to Pl.'s Mot., EEOC Dismissal and Notice of Rights, Ex. 26 to Pl.'s Mot.
Meanwhile, Hunter remained in his job at CFSA. The only notable events that occurred between his return on August 18, 2008, and the RIF on May 6, 2010 were: (1) In January 2010, Hunter successfully challenged a negative comment on a performance evaluation that he had received from Contracts Manager Jacque McDonald and Chief Contracting Officer Tara Sigamoni, see Performance Eval. And Tracking Form, Ex. 29 to Pl.'s Mot.; Letter from Ernest Hunter to Dexter Starkes (Jan. 21, 2010), Ex. 31 to Pl.'s Mot.; Pl.'s Mem. at 17--18, and (2) in May 2010, Hunter wrote a letter to the Chief Administrative Officer at CFSA challenging the method used to calculate his tenure in relation to the method used for newer employees. Letter from Ernest Hunter to Ray Davidson (May 3, 2010), Ex. 36 to Pl.'s Mot.
On May 6, 2010, Hunter received a Reduction in Force notice. RIF Notice. He was placed on immediate administrative leave until June 11, 2010, when he was terminated. Pl.'s Mem. at 21; RIF Notice.
Hunter filed the Third Amended Complaint in this case on November 4, 2010 naming the District of Columbia as the sole defendant. The complaint alleged that defendant violated Title VII of the Civil Rights Act of 1964 by engaging in disparate treatment on the basis of gender (Count I), retaliation (Count II), and hostile work environment (Count III); the D.C. Whistleblower Protection Act (Count IV); the D.C. Human Rights Act (Count V); and the Fifth Amendment of the Constitution of the United States (Count VI). Third Am. Compl. ¶¶ 38--70. Defendant filed a motion to motion to dismiss, which the Court granted in part. Order (July 15, 2011) [Dkt. # 41]. The Court dismissed the claims for hostile work environment and for violation of the Fifth Amendment. Id. For the discrimination and retaliation claims, the Court divided the allegedly unlawful acts into two categories: the 2008 acts and the 2010 acts. Id. The Court dismissed the claims to the extent that they were based on the 2010 acts for failure to exhaust administrative remedies. Id. Thus, the only claims that remain are for disparate treatment (Count I) and retaliation (Count II) under Title VII relating to the 2008 acts, violation of the D.C. Whistleblower Protection Act (Count IV), and violation of the D.C. Human Rights Act (Count V). Id.
After Hunter filed the Third Amended Complaint, the Court granted a motion to withdraw filed by his attorney, and Hunter notified the Court of his desire to proceed pro se. [Dkt. # 36, 37]. On October 12, 2011, the Court referred the case to a Magistrate Judge for full case management, including preparation of a report and recommendation for any dispositive motions under Local Rule of Civil Procedure 72.3. The parties cross-moved for summary judgment and the Magistrate Judge issued his Report and Recommendation, recommending that the Court deny Hunter's motion for summary judgment and grant the District's cross-motion. Hunter has objected to the Magistrate Judge's recommendation.
When a party objects to a magistrate judge's recommendation, the court "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Smith v. District of Columbia, 846 F. Supp. 2d 197, 198 (D.D.C. 2012); D.D. ex rel. Davis v. District of Columbia, 470 F. Supp. 2d 1, 1 (D.D.C. 2007). The Court may "accept, reject, or modify" the magistrate judge's recommendation, "receive further evidence," or "return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
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). The party seeking summary judgment bears the "initial responsibility of 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). "The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Wash. Post, 871 F.2d 1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In assessing each party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
Where a plaintiff proceeds pro se, "the Court must take particular care to construe the plaintiff's filings liberally, for such complaints are held 'to less stringent standards than formal pleadings drafted by lawyers.'" Cheeks v. Fort Myers Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520--21 (1972).
Hunter's does not identify with any specificity which findings of the Magistrate Judge he believes are wrong and for what reasons; rather, he generally objects to the recommended disposition and repeats the factual allegations and arguments contained in his motion for summary judgment and opposition to the District's cross-motion.
Hunter spends a significant portion of his objections addressing his 2010 termination, Objections to Magistrates [sic] Judges [sic] Proposed Findings and Recommendations ("Pl.'s Objections") [Dkt. # 72] at 1--2, 5--6, despite the fact that this Court previously dismissed any Title VII claims based on the District's 2010 acts for failure to exhaust administrative remedies, Order (July 15, 2011) [Dkt. # 41]. He attempts to resuscitate those claims by attaching to his objections two documents that he claims are evidence that he did exhaust his administrative remedies. The first of those documents, which, according to Hunter, "demonstrates Plaintiff filed a complaint with the EEOC in February 2011," Pl.'s Objections at 8, is completely illegible. Ex. 1 to Pl.'s Objections. The second, which allegedly "shows that Plaintiff also filed a similar complaint with the DC Office of Human Rights on March 6, 2011 that was never acted on," Pl.'s Objections at 8, appears to be a letter from Hunter dated March 6, 2011, addressed to Gustavo F. Velasques, Director of the District of Columbia Office of Human Rights that begins, "Consistent with Section 2-14013.4 of the DC Human Rights Act, I am filing with the Office of Human Rights a formal complaint of discrimination/retaliation against the DC Government." Ex. 2 to Pl.'s Objections.
At the outset, the Court notes that it need not consider new evidence that Hunter failed to submit during the motion to dismiss or summary judgment briefing. Fed. R. Civ. P. 72(b)(3) (stating that the district judge "may" receive further evidence). Nonetheless, the documents plaintiff has submitted are insufficient to rescue his dismissed claims. To exhaust administrative remedies under Title VII, a plaintiff must file a charge with the EEOC outlining his allegations.
42 U.S.C. § 2000e-5(e); see Duberry v. Inter-Con Sec. Systems, Inc., -- F. Supp. 2d --, 2012 WL 4923905, at *3 (D.D.C. Oct. 17, 2012). In the District of Columbia, the charge must be filed within 300 days of the challenged act. Duberry, 2012 WL 4923905, at *3. Moreover, the plaintiff may only bring suit in federal court within ninety days after the EEOC notifies him of his right to sue through the issuance of a right-to-sue letter, or after a complaint has been pending before the agency or the EEOC for at least 180 days. 42 U.S.C. §§ 2000e-5(f)(1), 2000e-16(c); see Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); Ellison v. Napolitano, -- F. Supp. 2d --, No. 11-1386, 2012 WL 5381399, at *4--5 (D.D.C. Nov. 4, 2012). The documents plaintiff submits do not demonstrate that he filed a formal charge with ...