United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For UNITED PLANNING ORGANIZATION, DEANGELO RORIE, ANDREA THOMAS, Defendants: Joseph Erwin Schuler, LEAD ATTORNEY, JACKSON LEWIS LLP, Reston, VA.
REGGIE B. WALTON, United States District Judge.
The plaintiff in this civil case, Salim Bilal-Edwards, filed a six-count complaint against the defendants, the United Planning Organization (" UPO" ) and two individuals, De Angelo Rorie and Andrea Thomas, alleging claims of wrongful termination, negligence, extreme and outrageous conduct, hostile work environment, and retaliation under the Whistleblower Protection Act, 5 U.S.C. § 2302(b) (2006), and violation of the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § § 621-634 (2006). The Court dismissed all the claims except for the plaintiff's ADEA claim in prior rulings. See Bilal-Edwards v. United Planning Org., 896 F.Supp.2d 88, 93-98 (D.D.C. 2012) (dismissing the plaintiff's claims of wrongful termination, negligence, extreme and outrageous conduct, and hostile work environment); ECF No. 58 (dismissing the plaintiff's Whistleblower Protection Act claim). Currently before the Court are the parties' cross motions for summary judgment on the plaintiff's remaining age discrimination claim. See generally Plaintiff's Motion for Summary Judgment (" Pl.'s Mot." );  Defendants' Motion for Partial Summary Judgment (" Defs.' Mot." ). The plaintiff also seeks leave to amend his complaint. See generally Motion to Amend Complaint (" Pl.'s Amend Mot." ). Upon careful consideration of the parties' submissions, the
Court concludes that the defendants' motion for summary judgment must be granted, and the plaintiff's motions for summary judgment and to amend his complaint must be denied.
The following facts are undisputed. The UPO " is the Community Action Agency for the District of Columbia," and " is a 501(c)(3) tax exempt organization." Defs.' Facts ¶ 1. " During [the] [p]laintiff's period of employment at [the] UPO, it was comprised of" various programs and divisions, including the Youth Services Division (" Division" ). Id. The " UPO receives a variety of grants and contracts from the federal government and the District of Columbia government," some of which support the activities of the Division. Id. ¶ 2; see also id. ¶ ¶ 3-4. Among the grants and contracts was " a grant from the U.S. Dream Academy to help fund the programs at the [UPO's] James Creek location." Id. ¶ 2. The " UPO also receives some private funding," including funding for the Division's Beaver Scholarship program. Id. ¶ 4.
Defendant Andrea Thomas " was hired as the first Director of the" Division at the UPO in 2007. Id. ¶ 5. The Division expanded in 2009, and the " UPO hired an Assistant Director." Id. Thomas " and then Chief Operating Officer . .., Gladys Mack, recommended [that the] [p]laintiff be hired as the Assistant Director," id. (citing Defs.' Facts, Exhibit (" Ex." ) A (Declaration of Andrea Thomas (" Thomas Decl." )) ¶ 7), and the " [p]laintiff commenced his employment with [the] UPO on March 23, 2009, as the Assistant Director of the" Division, id. ¶ 6 (citing
Defs.' Facts, Exs. C (New Hire Request Form dated March 23, 2009), D (March 13, 2009 Employment Offer Letter (" Offer Letter" ))). The plaintiff " was an at-will, salaried, exempt employee," id. (citing Defs.' Facts, Ex. D (Offer Letter)), and he was initially supervised by Thomas, id. 6. The plaintiff's duties at the UPO included " assisting the [Division] Director in the daily administration of [D]ivision projects as directed and assigned, and to work with other [Division] staff to ensure coordinated efforts." Id. (citing Defs.' Facts, Ex. E (Youth Services Division Assistant Director Job Description (" Job Description" )). In particular, the " [p]laintiff was assigned the responsibility of overseeing and implementing the [Division's] program at James Creek," which is a " community in southwest Washington, D.C." Id. ¶ 11.
" In or about October 2009, some of the [Division] staff moved into [a] recently renovated space commonly referred to within [the] UPO as the Alabama Avenue facility or just 'Alabama Avenue.'" Id. ¶ 43. Other staff from the Division also moved to the Alabama Avenue facility " later in late 2009 or early 2010." Id. Division employees " whose desks were adjacent to a rest room area, noticed a periodic strong odor," and " complained about the odor." Id. " Of the five [Division] staff located in the part of the building where the odor was strongest, only [the] [p]laintiff" and another employee were over 40. Id. ¶ 44. The UPO " undertook efforts directly and through the building management company to try to determine the source of the odor and remediate it" after receiving a written complaint from an employee who was under the age of 40. Id.
On October 1, 2009, Thomas became the UPO's Chief of Staff. Id. ¶ 7. She " continued to also serve as the Director" of the Division " until the new Director was hired and began service." Id. The " UPO hired De Angelo Rorie, the other individual defendant, as the new Director of the [Division] on November 9, 2009." Id. ¶ 10. Rorie then became the plaintiff's immediate supervisor. Id.
Around the same time that Rorie commenced his employment with the UPO, the Division also selected Tina Dawson as " a part-time Youth Services Worker to operate the youth programs at James Creek." Id. ¶ 12. After Dawson was notified " that she had been selected for the . . . position," the UPO began a required " pre-employment screening including drug testing, and . . . criminal background checks and the [District of Columbia] Child Protection Register check." Id. While the screening was ongoing, the " UPO considered other staffing options to move the implementation of youth services at James Creek forward." Id. ¶ 13.
Initially, " Rorie spoke with Jemeka Brown, a [Division] Case Manager for the Providing Opportunities with Educational Readiness Program known as 'P.O.W.E.R.', about changing positions in the [Division]." Id. ¶ 14. Rorie wanted Brown " to consider changing from her Case Manager position with the P.O.W.E.R. program, to the Youth Services Worker position at James Creek," which " would have entailed a formal change in positions, responsibilities, and hours." Id. Brown " was not interested in changing positions," because " she was a graduate student at Howard University and also had an internship, and the scheduled hours for James Creek would have conflicted." Id. " As a result of those obligations, she informed  Rorie that she was not available for the times needed to staff James Creek and that she would resign if he directed her to take the James Creek assignment." Id. (citing Defs.' Facts, Ex. K (Declaration of Jemeka Brown (" Brown Decl." )) ¶ ¶ 4, 6-7).
" [I]n late 2009 or early 2010,  Rorie spoke with DeVita Lanham, another [Division] Case Manager, about changing positions in the [Division]." Id. ¶ 15. He explained to Lanham " that ongoing funding for her position" was " questionable" because of grant uncertainties. Id. Rorie asked " if she was interested in changing jobs from her full-time Case Manager position to the part-time Youth Services Worker position at James Creek." Id. " Lanham declined the offer to transfer positions and to go from full-time to part-time." Id.
Also " [i]n late 2009 or early 2010," Thomas spoke with both Lanham " and LaShawn Reeder, a Retention Placement Specialist who shared duties with  Lanham, regarding several issues related to the [Division]," including the funding uncertainties surrounding both Lanham and Reeder's positions. Id. ¶ 16. Thomas additionally " raised the issue of needing to get the youth program at James Creek up and running" and " indicated that the Division may need their assistance with this project." Id. Both Lanham and Reeder " agreed to help" and " understood that they were not being offered the position and that their help would be temporary, since  Dawson was selected for the position and was going through the pre-employment screening process." Id. (citing Defs.' Facts, Exs. A (Thomas Decl.) ¶ 15, L (Declaration of LaShawn Reeder (" Reeder Decl." )) ¶ 11).
Rorie spoke with the plaintiff " on or about January 28 and 29, 2010, regarding [the Division's] need for [the] [p]laintiff to take a more active role to implement the program at James Creek." Id. ¶ 18. Rorie asked the " [p]laintiff to oversee the program and implement the program, including recruiting youth and starting up performance of the services by working at the site for several hours a day, three days per week, until the new Youth Services Worker commenced employment." Id. Rorie told the " [p]laintiff that this was a temporary responsibility, it was not a demotion or job transfer, and it would not result in a reduction of pay," and that the " [p]laintiff was to get the program off the ground until the new Youth Services Worker was hired." Id. However, the " [p]laintiff refused to do what was necessary to implement the program at James Creek by taking up those duties for the requested three days per week for several hours each day." Id. ¶ 19; see also Defs.' Facts, Ex. O (Memoranda from Salim Bilal-Edwards to Human Resources) at 8.
Rorie spoke with Thomas and personnel in the UPO's Human Resources department " regarding how to handle the [p]laintiff's . . . response" to the request that he staff the James Creek project. Defs.' Facts ¶ 21. Human Resources personnel and Thomas " suggested  Rorie issue a written warning," id., and " [o]n or about February 3, 2010,  Rorie issued the written warning to [the] [p]laintiff." Id. (citing Defs.' Facts, Ex. M (Employee Warning Notice)). The warning stated that " [f]ailure to comply with the directive to oversee the start up operations and implementation of the James Creek cite [sic] will result in further disciplinary action up to and including termination." Defs.' Facts, Ex. M (Employee Warning Notice).
Subsequently, the " [p]laintiff sent an email to  Rorie following up their conversation about [the] [p]laintiff's concerns with the [written warning], and also sent [Human Resources] a copy of the e-mail." Defs.' Facts. ¶ 22. " On or about February 19, 2010, Nnenna Ugorji, then UPO's Human Resources Director, met with [the] [p]laintiff to discuss his concerns," but the meeting did not result in a withdrawal of the ...