United States District Court, District of Columbia
[Copyrighted Material Omitted]
For PAUL JOHNSON, Plaintiff: Rebecca Newman Strandberg, LEAD ATTORNEY, REBECCA STRANDBERG & ASSOCIATES PA, Silver Spring, MD; David G. Ross, PRO HAC VICE, LAW OFFICE OF DAVID G. ROSS, Bethesda, MD.
For DISTRICT OF COLUMBIA, Defendant: Darrell Chambers, LEAD ATTORNEY, DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Wayne C. Beyer, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC.
For BOARD OF TRUSTEES, UNIVERSITY OF THE DISTRICT OF COLUMBIA, Defendant: Darrell Chambers, LEAD ATTORNEY, DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Wayne C. Beyer, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC.
JOHN D. BATES, United States District Judge.
Plaintiff Paul Johnson has brought this action against defendants District of Columbia, Mayor Vincent Gray,  and the University of the District of Columbia Board of Trustees  (collectively " the District" )
alleging discrimination on the basis of sex and disability, and subsequent retaliation, all in violation of federal anti-discrimination laws. The District, i.e., all three defendants, has filed a motion for summary judgment, and, for the reasons set forth below, the Court will grant that motion.
Johnson has worked at the University of the District of Columbia (" UDC" ) Finance Office since 1990, when he began work as a Cost Accountant reconciling intra-District grants for payment. Pl.'s Stmt. of Material Facts [Dkt. 62-4] ¶ 1; Defs.' Ex. 1 (Johnson Dep.) [Dkt. 59-1] at 13:9-16, 38:6-19. Johnson is blind in one eye and has insulin-dependent diabetes. Johnson Dep. at 119:10-14; 127:13-14. Johnson occasionally falls into a brief diabetic sleep at his desk after lunch, and his eye feels strained if he works long hours into the evening. Id. at 102:7-22, 122:15-22.
In 2000, Alvin Cannon was the UDC Controller and worked directly under CFO Greg Davis. See Defs.' Ex. 4 (Dukes Dep.) [Dkt. 59-1] at 27:1-21. According to Johnson, in December 2000, Cannon asked Johnson to move from his position in the Cost Accounting department, where he worked as a Cost Accountant under Vivian Brown with a salary of $44,000,  to a position in the General Accounting department. See Johnson Dep. at 38:6-16, 75:2-76:3, 206:9-21; Defs.' Stmt. of Material Facts ¶ 10; 2d Am. Compl. ¶ 11. Of particular importance, Johnson alleges that Cannon orally promised him a promotion in job title to " Senior Accountant" and a pay raise from his current salary to $58,000.  See Johnson Dep. at 75:17-76:6. This alleged agreement was never memorialized in writing. Id. at 207:14-19. Johnson was subsequently transferred to the General Accounting department, where he was supervised by Keith Dukes, but Johnson did not receive the pay raise that was allegedly promised. Id. at 203:8-15; 206: 9-21; Dukes Dep. at 9:14-10:8. According to Brown, when Johnson left her department in December 2000, Johnson's former position was eliminated because that work " slot" transferred along with Johnson to General Accounting. Defs.' Ex. 5 (Brown Dep.) [Dkt 59-1] at 88:13-89:20.
Johnson, on the other hand, believes the Cost Accountant position that he vacated was filled by Ana Reyes, a female, who was paid $66,000. Johnson Dep. at 207:20-208:12. However, discovery revealed that Reyes was not affiliated with the UDC Finance Office until February 2001, when she joined a task force dispatched to the UDC Finance Office by the Office of Financial Operations and Systems
(" OFOS" ). See Defs.' Ex. 6 (Reyes Dep.) [Dkt. 59-1] at 15:4-7, 22:2-14, 54:16-55:8; Defs.' Ex. 3 (Bryon Dep.) [Dkt. 59-1] at 45:4-17; Dukes Dep. at 58:10-60:1; Pl.'s Ex. 6 (Reyes' Resume) [Dkt. 64]; Defs.' Ex. 7 (Reyes' Resume) [Dkt. 59-1]. At the time, the District of Columbia government was transferring to a new accounting system called SOAR, and this task force was assigned to help the UDC Finance Office with the transition. See Reyes Dep. at 9:5-21, 14:10-19:20, 30:9-32:10; Defs.' Ex. 3 (Byron Dep.) [Docket Entry 59-1] at 44:8-45:10. The title of Reyes's position on the task force was " Agency Group Accountant." Defs.' Ex. 7 (Reyes' Resume) at 3. As a member of the task force, Reyes was an employee of OFOS, and reported directly to another task force member, LaShawn Gaines. Reyes Dep. 54:16-55:8; Brown Dep. 95:2-5; Dukes Dep. at 58:16-59:4.
Around October 2001, Ms. Reyes was hired as a permanent employee by the UDC Finance Office. Reyes Dep. 23:1-6; 26:11-32:18. Reyes recalls that her job title was " Operating General Ledger Accountant," also referred to as " Operating Accountant," and believes her salary was $70,000. Id. at 23:12-25:1; Defs.' Ex. 7 (Reyes Resume) at 3. In this role, Reyes continued to report to Gaines, who had taken on the position of UDC Controller. Reyes Dep. at 41:10-13.
Cannon, the person who allegedly promised Johnson a promotion and raise, was terminated from his position as Controller when CFO Davis was replaced by an interim CFO, Cassandra Alexander. See Dukes Dep. 27:1-21; Pl.'s Ex. 5 (Cabbell Dep.) [Dkt. 70] at 19:23-20:6. The exact date of Cannon's departure is unclear from the record, and there is no evidence that Johnson ever spoke with Cannon about the alleged promise again after December 2000. However, according to Johnson, on August 2, 2001, he complained to Dukes, Johnson's supervisor in General Accounting, about the delay in Johnson's allegedly promised raise. 2d Am. Compl. ¶ 15. Nearly a year later, on July 8, 2002, Johnson sent a memorandum to Dukes, outlining his concerns about not being promoted or paid more. Pl.'s Ex. 12 (Jul. 8, 2002 Mem.) [Dkt. 75] at 9. Dukes testified that Johnson told him that Cannon had promised Johnson a promotion and a raise, but Dukes stated that he was never informed of any plan to change Johnson's position or salary. Dukes Dep. at 18:6-19:14. On October 21, 2002, an attorney hired by Johnson wrote a letter on his behalf to Earl Cabbell,  a superior in the UDC Finance Office, regarding " an ongoing pay dispute," noting that " younger and less experienced personnel have come into the Finance Office at higher rates of pay for performing basically the same job functions." Pl.'s Ex. 2 (Oct. 21, 2002 Letter) [Dkt. 68] at 1-2.
In November 2003, Johnson's pay was increased from $50,465 to $57,965, retroactively effective October 1, 2003, as part of a department-wide salary raise. Johnson Dep. at 71:2-21, 72:9-17, 73:8-12. The pay raise was based primarily on years of service.  See id.; Defs.' Ex. 2 (Gaines Dep.) [Dkt. 59-1] at 31:15-18.
Around June 2004, Johnson received a desk audit, which is a process administered by the Human Resources department at the UDC Finance Office to determine whether an employee's duties and responsibilities are commensurate with his position, grade, and salary. See Byron Dep. at 41:13-42:3. The desk audit was performed by Nelson Madison, and involved obtaining information from Johnson and Dukes about Johnson's current duties. See Dukes Dep. at 30:12-32:10; Byron Dep. at 41:13-21. The audit found that Johnson's pay was commensurate with his duties, but that his position should have the title of " Senior Accountant." See Bryon Dep. at 41:13-42:7. As a result of the desk audit, Johnson's title was formally changed to Senior Accountant sometime at the end of 2004 or in early 2005. See Bryon Dep. at 42:6-11; Pl.'s Ex. 1 (Jun. 6, 2011 Johnson Aff.) [Dkt. 67] ¶ 29.
Johnson wrote another letter of complaint to Dukes on September 9, 2004, alleging discrimination based on age, gender, disability, and sexual orientation. Pl.'s Ex. 12 (Sep. 9, 2004 Mem.) [Dkt. 75] at 8. Johnson then alleges that, in " early 2005," prior to filing a charge with the Equal Employment Opportunity Commission (" EEOC" ), he told Gaines " about the fact that [a form] [Johnson] received . . . after the Desk Audit . . . changed only [his] title but not [his] pay and grade," and Gaines responded that " she would no longer help [Johnson] because [he] had an attorney and [he] was 'in legal.'" Pl.'s Ex. 1 (Jun. 6, 2011 Johnson Aff.) ¶ 29; see also 2d Am. Compl. ¶ 35. Gaines does not recall this conversation. See Gaines Dep. 53:13-21, 55:1-5.
On or around July 11, 2005, Johnson filed a charge of discrimination against the District with the EEOC, and was given a right to sue letter on March 14, 2007. 2d Am. Compl. ¶ 2. He then filed this lawsuit within 90 days thereafter. After the Court's earlier Opinions and Orders issued in response to a motion to dismiss in 2008 and a motion for reconsideration in 2009, the following claims remain intact: that Johnson received less pay than similarly situated females because of his gender, in violation of the Equal Pay Act, 29 U.S.C. § 206(d) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq.; that Johnson received a lower salary compared to similarly situated non-disabled employees because of actual or perceived disability, in violation of the Americans with Disability Act, 42 U.S.C. § § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § § 701 et seq.; and that Johnson suffered retaliation when Gaines allegedly refused to help him with his pay claim after Johnson filed internal complaints concerning the alleged disparate pay and retained an attorney. The District moved for summary judgment after the close of discovery.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the evidence demonstrate that " there is no genuine issue as to any material fact and that 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 demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of " the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1); See also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the Court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the " mere existence of a scintilla of evidence" in support of its position. Id. at 252. Moreover, " [i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer " evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
Recognizing the potential difficulty for a plaintiff in an employment discrimination or retaliation action to uncover clear proof of discriminatory or retaliatory intent, the district court approaches summary judgment in such actions with " special caution." Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80, 325 U.S.App. D.C. 255 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284, 332 U.S.App. D.C. 256 (D.C. Cir. 1998) (en banc). Nevertheless, the plaintiff is not relieved of his obligation to support his allegations with competent evidence.
Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C. 2009). " As in any context, where the plaintiff will bear the burden of proof at trial on a dispositive issue, at the summary judgment stage, he bears the burden of production to designate specific facts showing that there is a genuine dispute requiring trial."
Mason v. Geithner, 811 F.Supp.2d 128, 175 (D.D.C. 2011) (citing Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)). Absent this burden, the plaintiff could effectively defeat the " ...