United States District Court, D. Columbia.
For Ramesh Sharma, Plaintiff: Alan Banov, Stephanie Lynn Rapp, ALAN BANOV & ASSOCIATES, Silver Spring, MD USA.
For District of Columbia, Defendant: Michael K. Addo, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC USA.
For Metropolitan Washington Employment Lawyers Association, Amicus: Alan Robert Kabat, LEAD ATTORNEY, BERNABEI & WACHTEL, PLLC, Washington, DC USA.
Gladys Kessler, United States District Judge.
Plaintiff Ramesh Sharma (" Plaintiff" or " Sharma" ) brings this suit against his former employer, the District of Columbia (" Defendant" or " the District" ), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq.; the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq.; and the District of Columbia Whistleblower Protection Act (" DCWPA" ), D.C. Code § 1-615.51.
This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment [Dkt. No. 96] and Defendant's Cross Motion for Summary Judgment [Dkt. No. 107]. Upon consideration of the Motions, Oppositions [Dkt. Nos. 100, 110-2], Replies [Dkt. Nos. 104, 113], Plaintiff's Notice of Supplemental Authority [Dkt. No. 120], and the entire record herein, and for the reasons stated below, Plaintiff's Motion for Partial Summary Judgment shall be denied and the District's Cross Motion for Summary Judgment shall be granted in part and denied in part.
A. Factual Background
Sharma, a United States citizen of Asian-Indian origin, was previously employed by the District of Columbia's Office of Contracting & Procurement (" OCP" or the " Agency" ) as a Senior Contract Specialist in the Construction Design and Building Renovation (" CDBR" ) Group. See Def.'s Resp. to Pl.'s Statement of Material Facts (" SOMF" ) ¶ 8 [Dkt. No. 100].
Sharma alleges that, at his initial interview for this position in January 2003, Karen Hester (" Hester" ), the hiring official and then-Manager of Contracting, " asked [him] if he was willing to do all types of work she would assign him, including clerical, typing, and filing work, because she thought most people from his part of the world (South Asia), like India, Pakistan, and Bangladesh[,] were very lazy and made poor supervisors or leaders[.]" Third Amended Complaint (" TAC" ) ¶ 11 [Dkt. No. 50]. The District denies this allegation. Answer to TAC (" Answer" ) ¶ 11 [Dkt. No. 52].
In any event, Hester hired Sharma, who was 64 years of age at the time, and, on May 26, 2004, she evaluated his performance as " outstanding" in four out of five performance categories. She elaborated that:
[Sharma] brings a vast amount of knowledge and experience in contracting . . . . He is extremely diligent, does not need supervision and exercises a high degree of judgment in carrying out assignments that are sensitive and highly visible.
Ex. to Def.'s Opp'n (performance evaluation dated May 26, 2004) [Dkt. No. 100 at ECF pp. 77-78]. In the " Personal Relations" category, however, Hester judged Sharma to be only " satisfactory" /" acceptable," and she cautioned that he " should be careful not to offend others in his zeal for timeliness and thoroughness." Id.
In June 2005, Hester again issued Sharma a glowing performance evaluation, rating him as " outstanding" in four out of five categories and observing that he " is proactive in analyzing and resolving problems" and " takes the initiative to do all that he can do to complete a project or assignment in a timely manner, including hours of work without compensation." Ex. to Def.'s Opp'n (performance evaluation dated June 2005) [Dkt. No. 100 at ECF pp. 79-80]. She opined again, however, that Sharma's " Personal Relations" were only " satisfactory" and she indicated that he " needs improvement" in cooperating with his co-workers. She explained:
In his zeal for timeliness, thoroughness and integrity Mr. Sharma has offends [sic] internal and external customers on occasion. In this regard, Mr. Sharma must improve the content and tone of his communications with internal and external customers.
Sharma's relationships with customers did not, however, improve. Sharma contends that the reason for the lack of improvement was that his supervisors, co-workers, and customers repeatedly " pressured" him to find ways to " bypass the District's procurement regulations" and " rubber-stamp" inflated and wasteful contracts, which he refused to do. See generally TAC ¶ 18. He alleges, for example, that he refused an influential lobbyist's demand that he process a $1 million claim evaluated to be " worth only about $100,000, not about $1 million, as claimed by the contractor[,]" because the contractor " failed to provide the required justification [and] proof of costs[.]" Id. ¶ ¶ 14-16. He also objected to alleged " [e]fforts by [OCP Deputy Director, Peter May, and OCP Project Manager, Tony Esse] to steer [a] Conceptual Design contract for the Consolidated Forensics Lab (CFL) project to a pre-selected contractor at highly inflated prices[.]" Id. ¶ 18. In addition, he complained about a Department of Health official's
alleged attempt to coerce him into ignoring procurement rules and a general lack of " cost control on many of the contracts administered by Mr. Esse." Id.
On July 11, 2005, Sharma filed his first " whistleblower complaint" with the D.C. Auditor and D.C. City Council, complaining of these and other alleged violations. Id. On March 17, 2006, he filed several more " whistleblower complaints" of the same type with the D.C. Inspector General's Office, the D.C. Auditor, and the D.C. City Council. Id. ¶ 30. His co-workers and supervisors, in turn, complained that he was " not helpful" and requested that he be removed from certain projects. Id. ¶ ¶ 26, 29, 30.
In August 2006, after Sharma refused to comply with an order from Ms. Hester to " do whatever [Deputy Director May and Project Manager Esse] want you to do to process" certain contracts, Hester issued him a letter of admonishment stating, among other things, that he had " poor customer relations," exhibited " disruptive behavior," and was insubordinate. Id. ¶ ¶ 58-60, 67, 68. Thereafter, on October 18, 2006, Sharma filed additional complaints with the D.C. Mayor's Office, the United States Department of Justice, the D.C. Inspector General, the D.C. Auditor, the United States Equal Employment Opportunity Commission (" EEOC" ) and the D.C. Office of Human Rights alleging retaliation, discrimination, and violations of federal and D.C. whistleblower and false claims laws. Id. ¶ 69.
On December 12, 2006, Sharma again refused a direct order from Hester to process a major contract, this one related to the Anacostia Waterfront project, which he contended was " illegal" because " it involved millions of dollars of hidden equipment[.]" Id. ¶ ¶ 71-74. The same day, Sharma submitted further complaints of ethical violations to the D.C. Auditor and the D.C. Office of the Inspector General. Id. ¶ 75. Hester subsequently removed him from the Anacostia Waterfront Project and the project was reassigned to another employee who, according to Sharma, had " no engineering background or experience" in complex design contracts. Id. ¶ 78.
Sharma alleges that, in April 2007, in a meeting to discuss Sharma's multiple grievances, Hester told him:
Ray, you are filing too many complaints with the IG, the Auditors [sic] office, EEOC, and the Mayor. You are making the Mayor's office and other big bosses very mad. They will get back at you and you are also making my job difficult. . . . You need to be careful. . . . It will take you nowhere . . . but trouble[.]
In June 2007, another supervisor, Diane Wooden, rated Sharma's performance as " unsatisfactory" in the " Personal Relations" category and only " satisfactory" in three of the five remaining performance categories. While Wooden acknowledged that Sharma had a " vast amount of experience and knowledge of [the] construction procurement processes," she observed that
the positive aspects of his performance are marred by poor personal relations with customers and other stakeholders. Mr. Sharma is argumentative, condescending, and an obstacle to District employees who disagree with his perspectives and who are often seeking advice and assistance from OCP on the proper way to get contracts awarded. In fact, the quantity of work that is expected of an employee at his level is deficient because customers have complained and requested that Mr. Sharma not be assigned to their projects.
Ex. to Def.'s Mot. (performance evaluation, dated June 2, 2007) [Dkt. No. ...