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Martin v. District of Columbia

United States District Court, D. Columbia.

January 23, 2015

FELICIA MARTIN, formerly known as Felicia Dantzler, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants

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For FELICIA MARTIN, formerly known as FELICIA DANTZLER, Plaintiff: George A. Rose, LEAD ATTORNEY, THE ROSE LAW FIRM, LLC, Baltimore, MD; Jessie Lyons Crawford, PRO HAC VICE, THE LAW OFFICE OF JESSIE LYONS CRAWFORD, Baltimore, MD.

For DISTRICT OF COLUMBIA GOVERNMENT, FREDERICK PETER MOOSALLY, III, In his official and individual capacity, CHARLES BRODSKY, In his Individual and Professional Capacity, JOHNNIE E. JACKSON, JR, In his Individual and Professional Capacity, CRAIG SELBY STEWART, In his Individual and Professional Capacity, MARIA DELANEY, In her Official and Individual Capacity, Defendants: Denise J. Baker, LEAD ATTORNEY, Jonathan Hale Pittman, OFFICE OF ATTORNEY GENERAL, Washington, DC; Patricia B. Donkor, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, D.C., Civil Litigation Division, Washington, DC.

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RUDOLPH CONTRERAS, United States District Judge.

Granting in Part and Denying in Part Defendants' Motion to Dismiss and for Summary Judgment; Denying Plaintiff's Motion for Sanctions and to Strike Exhibits


Felicia Martin, an employee of the District of Columbia Alcoholic Beverage Regulation Administration, brought this action against the District and her current and former superiors, asserting statutory and common-law claims arising out of alleged

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gender, disability, and age discrimination and retaliation. Before the Court are the defendants' motion to dismiss and for summary judgment (ECF No. 118), and Martin's motion for sanctions and to strike exhibits in support of the defendants' motion (ECF No. 131). Having reviewed the parties' filings, the Court grants in part and denies in part the defendants' motion to dismiss and for summary judgment, and denies Martin's motion for sanctions and to strike exhibits.


Martin is a female aged forty-five at all times relevant to this case. See Am. Compl. ¶ 2, ECF No. 33; Defs.' Statement of Facts ¶ 2, ECF No. 118-2.[2] Since 2007, she has served as an Investigator in the Enforcement Division of the Alcoholic Beverage Regulation Administration (" ABRA" ). See Pl.'s Am. Statement of Facts ¶ 1, ECF No. 129; Martin Aff. ¶ 2, Pl.'s Ex. 74, ECF No. 128-74. ABRA is an independent agency of the District of Columbia (" District" or " D.C." ) that assists the Alcoholic Beverage Control Board (" ABC Board" ) in the administration and enforcement of the District's alcohol regulations. See D.C. Code § § 25-201(c), 25-202. In furtherance of this mission, ABRA Investigators inspect, train, and advise establishments licensed to provide alcoholic beverages and prepare reports on potential regulatory violations for submission to the ABC Board. See Investigator job description, Pl.'s Ex. 62, ECF 128-62.

A. Special Evaluation of ABRA by the D.C. Office of the Inspector General

In 2007 and 2008, several complaints surfaced alleging that ABRA management improperly interfered with or altered investigative reports. See, e.g., Webb complaint, Pl.'s Ex. 6, ECF No. 128-6; Anonymous complaint, Pl.'s Ex. 9, ECF No. 128-9. In response, then-Director of ABRA Maria Delaney (" Delaney" ) requested that the D.C. Office of the Inspector General (" DCOIG" ) conduct a special evaluation of ABRA. See DCOIG Report Executive Summary 2, Defs.' Ex. A, ECF No. 118-4. This evaluation commenced in June 2008 and concluded in April 2009. Id.

Shortly after Delaney announced the forthcoming evaluation, she received an email from Martin asking for " ABRA's contact person responsible for scheduling

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interviews with OIG." Martin-Delaney emails of June 20, 2008, Pl.'s Ex. 18, ECF No. 128-18. Delaney replied, explaining that DCOIG would initiate any necessary interview scheduling. Delaney then forwarded her email exchange with Martin to ABRA Chief of Enforcement Johnnie E. Jackson (" Jackson" ) with the note " Fyi." Id.

In late June 2008, a DCOIG Special Agent interviewed Martin to gather information regarding allegations that Delaney and Jackson had instructed ABRA staff to destroy evidence relevant to the DCOIG evaluation. Martin denied having been instructed to destroy documents. However, she reported that on several occasions in the past, Delaney had asked her to change reports citing certain licensees for infractions, and as proof, provided a draft report with Delaney's comments. Martin alleged that Delaney was motivated by a personal association with the licensees that she sought to protect. See DCOIG Memorandum of Interview, Pl.'s Ex. 20, ECF No. 128-20. Additionally, Martin claimed that Delaney's favoritism affected not only her reports, but those of all Investigators, who were expected to follow an " unwritten rule in ABRA" that certain licensees should be treated more leniently. Id.

B. Denial of Promotion to Supervisory Investigator

In July 2008, Martin sought a promotion to Supervisory Investigator, applying for one of two vacant positions. See Martin Aff. ¶ 7, Pl.'s Ex. 74; Pl.'s Am. Statement of Facts ¶ 34. In late October 2008, several Supervisory Investigator candidates were interviewed, but Martin was not among them. See Interview notes, Pl.'s Ex. 39, ECF No. 128-39. Days later, having heard about the interviews, Martin approached Jackson and asked why she had not been chosen. See Jackson email of Oct. 27, 2008, Pl.'s Ex. 40, ECF No. 128-40. He explained that because Martin had been promoted in May 2008 to a permanent Investigator position at the G-12 pay grade, Martin Aff. ¶ 3, Pl.'s Ex. 74, she did not have one year's " time in grade" and was thus ineligible for the promotion, id. ¶ 16; Jackson Aff. ¶ 3, Defs.' Ex. I, ECF No. 118-12.

Jackson claims that in finding Martin to be ineligible, he relied on advice from the D.C. Department of Human Resources (" DCHR" ). See Jackson Aff. ¶ 3, Defs.' Ex. I. In late October 2008, the DCHR generated a Selection Certificate listing three individuals deemed eligible, and Martin's name does not appear on that Certificate. See Selection Certificate, Defs.' Ex. J, ECF No. 118-13. However, on at least one past occasion, ABRA management had attempted to fill a vacancy by first identifying the candidate it wished to hire, and then asking DCHR to place that candidate's name on a Selection Certificate. See Farouk email of Feb. 15, 2008, Pl.'s Ex. 30, ECF No. 128-30.

Among the candidates interviewed for the promotion in October 2008 were male Investigators Jermaine Matthews (" Matthews" ) and Gregory Price (" Price" ), whose names appeared on the Selection Certificate. See Interview notes, Pl.'s Ex. 39; Selection Certificate, Defs.' Ex. J. Both Matthews and Price had less than one year's time in grade: Matthews had been promoted in May 2008 to a full-time, DS-11 position, see Jackson email of May 21, 2008, Pl.'s Ex. 32, ECF No. 128-32, whereas Price had been employed with ABRA since February 2008, at the DS-11 pay grade, see Price appointment form, Pl.'s Ex. 31, ECF No. 128-31.

In November 2008, Jackson announced that Price had been selected for the promotion to Supervisory Investigator, leaving only one position vacant. See Jackson email of Nov. 7, 2008, Pl.'s Ex. 41, ECF

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No. 128-41. Martin did not apply for the second position because Jackson had led her to believe that her first application would be considered for the other vacancy. See Pl.'s Am. Statement of Facts ¶ 46; Jackson email of Dec. 12, 2008, Pl.'s Ex. 43, ECF No. 128-43; Jackson Aff. ¶ 4, Defs.' Ex. I.

In late December 2008, Martin spoke with male Investigator Craig Selby Stewart (" Stewart" ) at a celebration to mark his departure from ABRA. During their conversation, Martin learned that despite the fact that Stewart had also been ineligible under the time-in-grade rule for the Supervisory Investigator promotion, he had been offered the promotion, though he declined for personal reasons. See Martin Aff. ¶ 27, Pl.'s Ex. 74. Ultimately, in November 2009, two additional male Supervisory Investigators were selected--Matthews and Stewart, who by that time had re-joined ABRA. See Moosally email of Nov. 10, 2009, Pl.'s Ex. 53, ECF No. 128-53 (announcing promotions); Moosally email of Apr. 10, 2009, Pl.'s Ex. 47, ECF No. 128-47 (announcing Stewart's return to ABRA); Martin Aff. ¶ 52, Pl.'s Ex. 74.[3]

C. Denial of Volunteer Assignment as Relief Supervisory Investigator

On several occasions, Martin was not selected for the volunteer position of Relief Supervisory Investigator, despite expressing interest.[4] In July 2008, Martin volunteered to serve as Relief Supervisory Investigator upon the resignation of a former Supervisory Investigator. Jackson instead appointed Matthews. See Martin Aff. ¶ 5, Pl.'s Ex. 74. In September 2008, Jackson solicited volunteers to serve as Relief Supervisory Investigator, and Martin expressed her interest. See id. ¶ 9. Jackson instead selected Stewart. See Jackson email of Oct. 8, 2008, Pl.'s Ex. 37, ECF No. 128-37. In June 2009, Jackson again asked for volunteers, and Martin again responded affirmatively. See Martin-Jackson emails of June 10, 2009, Pl.'s Ex. 48, ECF No. 128-48. The next day, Jackson again selected Stewart. See Jackson email of June 11, 2009, Pl.'s Ex. 49, ECF No. 128-49. At the time, Stewart was either thirty-eight or thirty-nine years old. See DCOHR letter 3, Defs.' Ex. E, ECF No. 118-8 (explaining that at time of the November 2009 promotion, Stewart was thirty-nine years old). In August 2009, Jackson asked Martin to serve as Relief Supervisory Investigator, but Martin declined on grounds that she did not wish to answer service calls after hours, as required by the position. See Jackson Aff. ¶ 5, Defs.' Ex. I; Hollis Aff. ¶ 10, Defs.' Ex. L, ECF No. 118-15.

D. Denial of Other Volunteer Assignments

Martin was also denied various other volunteer positions. In June 2008, Martin was selected to serve on a committee detailed to the 2009 Presidential Inauguration. See Jackson email of June 21, 2008, Pl.'s Ex. 54, ECF No. 128-54. However, Martin was removed from the committee after failing to have her photograph taken on a designated day in November

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2008, as required for participation per certain security measures. See Martin-Jackson emails of Nov. 19-20, 2008, Defs.' Ex. N, ECF No. 118-17; Jackson Aff. ¶ 6, Defs.' Ex. I. Although there was a make-up appointment for taking the required photographs, Martin was unaware of anyone who had their photo taken on the make-up day. See Martin Dep. 89: 17-21, Defs.' Ex. B, ECF No. 118-5.

In September 2008, Jackson asked for volunteers to serve as Training Coordinator, Fleet Coordinator, and Special Events Coordinator. See Martin-Jackson emails of Sept. 19-24, 2008, Pl.'s Ex. 56, ECF No. 128-56. These volunteers would take on additional duties to improve the Enforcement Division's operations and would in turn gain management and leadership experience. See Martin Aff. ¶ 11, Pl.'s Ex. 74; Jackson Aff. ¶ 10, Defs.' Ex. I. Jackson did not specify any selection criteria. See Martin-Jackson emails of Sept. 19-24, 2008, Pl.'s Ex. 56. Despite expressing interest in all three positions, Martin was not selected for any. See id.; Martin Aff. ¶ 11, Pl.'s Ex. 74. The two females selected as Training and Special Events Coordinators were under age forty, while the male selected as Fleet Coordinator was sixty-two years old. See Pl.'s Am. Statement of Facts ¶ 53.

Also in September 2008, Jackson asked for volunteers to serve as Inaugural Liaison to help coordinate activities and submission of documents on behalf of ABRA's detail for the 2009 Presidential Inauguration. Martin volunteered. See Martin-Jackson emails of Sept. 11, 2008, Pl.'s Ex. 55, ECF No. 128-55. Minutes later, however, Jackson announced that male Investigators Dwyne Shoemaker and Price would serve as the Liaisons. See id.

E. Carpal Tunnel Syndrome

In December 2008, Martin was diagnosed with carpal tunnel syndrome, a condition that limits her ability to type. See Dr. Mody Letter, Pl.'s Ex. 59, ECF No. 128-59; Jackson memo, Pl.'s Ex. 60, ECF No. 128-60. Typing is a significant part of an Investigator's job: Investigators must resolve virtually all complaints of regulatory violations by means of a written report, and Martin handled 96 to 162 cases per year. See Martin letter of Jan. 2, 2012, Pl.'s Ex. 62, ECF No. 128-62; Investigator job description, id. In December 2008, when Martin reported her condition to Jackson, he accused her of having a pre-existing condition and of " dropping [her] injury in ABRA's lap." Martin Aff. ¶ 22, Pl.'s Ex. 74. ABRA then provided Martin with a cassette recorder " to be utilized to dictate her investigative reports," though Martin had requested voice recognition software. Jackson memo, Pl.'s Ex. 60; Jackson memo, Pl.'s Ex. 59, ECF No. 128-59; see also Defs.' Statement of Facts ¶ 41. That same month, Jackson decided to divert cases away from Martin on the basis that she could no longer type. See Nickens Aff. ¶ 6, Pl.'s Ex. 58, ECF No. 58. By January 2009, Martin had no cases assigned to her, see Martin email of Jan. 8, 2009, Pl.'s Ex. 57, ECF No. 128-57, and this workload reduction persisted into August 2010, see Martin Aff. ¶ 90, Pl.'s Ex. 74 (" I did not have enough work to sustain me thru [sic] the 8 hour tour." ). Also in January 2009, Jackson instructed another Investigator to type Martin's cases for her, though such duties would be additional to his normal work assignments. See Nickens Aff. ¶ 7, Pl.'s Ex. 58.

Martin's symptoms did not abate. In 2010, Martin inquired on several occasions about the availability of voice recognition software, explaining that the cassette recorder was of no help in sending emails on a daily basis. See Martin correspondence, Pl.'s Ex. 64, ECF No. 128-64. In July 2010, Supervisory Investigator Stewart

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confirmed to Martin that Jackson had declined to purchase the requested software and that she consequently had to use the cassette recorder. See Martin Aff. ¶ 84, Pl.'s Ex. 74. In early 2011, Martin underwent surgery for her condition and attended occupational therapy sessions. See Medical records, Pl.'s Ex. 76, ECF No. 128-76. In September 2011, her doctor instructed her to limit working hours, computer usage, and other physical tasks such as lifting, standing, walking, sitting, and driving. See Dr. Mosely recommendations, Pl.'s Ex. 65, ECF No. 128-65. ABRA eventually provided Martin with voice recognition software in December 2011. Martin Dep. 33:17-18, Defs.' Ex. Q, ECF No. 118-20; Defs.' Statement of Facts ¶ 44.[5]

F. Denial of Overtime Pay

In July 2009, Martin signed up to work an overtime shift. During the shift, she and other colleagues met Matthews, who was riding in a separate vehicle and at the time was serving as Relief Supervisory Investigator. Upon seeing the number of people on the shift, Matthews stated that he " was not paying overtime for . . . five people" and that " one of [them] had to leave." Martin Aff. ¶ 37, Pl.'s Ex. 74. However, no one departed, given that each believed that they had been properly approved to work. Id. Martin later learned that her name was not on the " overtime list" and that she would not be paid for the overtime hours. Id. According to Jackson, Martin had failed to obtain written advance approval by a Supervisory Investigator for her work on the overtime shift, per ABRA policy. See Jackson Aff. ¶ 8, Defs.' Ex. I.

G. Procedural History

In November 2009, Martin met with ABRA's internal Equal Employment Opportunity (" EEO" ) Officer to discuss the possibility of filing a discrimination complaint. Martin Aff. ¶ 54, Pl.'s Ex. 74. She subsequently filed an internal EEO complaint. See id. ¶ 57.

In February 2010, Martin filed a formal charge alleging gender, disability, and age discrimination under the D.C. Human Rights Act (" DCHRA" ), D.C. Code § § 2-1401.01 et seq., and Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § § 2000e et seq., with the D.C. Office of Human Rights (" DCOHR" ) and the U.S. Equal Employment Opportunity Commission (" EEOC" ). See Charges, Pl.'s Ex. 68, ECF No. 128-68.[6] In July 2010, Martin filed with both agencies a separate retaliation complaint under the DCHRA and Title VII, alleging that she had suffered retaliation for her discrimination complaints. See id. In August 2010, the DCOHR issued a no-cause finding on Martin's discrimination claims. See DCOHR letter, Defs.' Ex. E; Martin Aff. ¶ 110, Pl.'s Ex. 74. In December 2010, Martin withdrew her retaliation complaint from

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the DCOHR administrative process. See Request for Withdrawal, Defs.' Ex. F, ECF No. 118-9. In March 2011, Martin received a notice from the EEOC of the dismissal of her discrimination claims and of her right to file a lawsuit, explaining that the EEOC had adopted the findings of the DCOHR. See Compl. Ex. A, ECF No. 1-1.

On June 9, 2011, Martin filed the instant action. See generally Compl., ECF No. 1. Her amended complaint asserts claims under Title VII; the DCHRA; the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § § 621 et seq.; the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101 et seq.; the Rehabilitation Act, 29 U.S.C. § § 701 et seq.; the D.C. Whistleblower Protection Act (" DCWPA" ), D.C. Code § § 1-615.51 et seq.; and the Civil Rights Act of 1871, 42 U.S.C. § 1983 (" § 1983" ); along with other statutory and common law claims. See generally Am. Compl. In addition to the District, the amended complaint names as defendants various ABRA personnel in their individual capacities, including Jackson, Delaney, and Stewart, who by then was Martin's direct supervisor. The other two individual defendants are Frederick Peter Moosally, III (" Moosally" ), who had become ABRA Director in July 2009 after Delaney resigned, and former Chairman of the ABC Board Charles Brodsky (" Brodsky" ). See generally Am. Compl. This Court subsequently dismissed or granted summary judgment on all claims against Brodsky. See Martin v. District of Columbia, 968 F.Supp.2d 159, 161 (D.D.C. 2013) (ECF No. 99). Accordingly, the remaining defendants are the District, Moosally, Jackson, Stewart, and Delaney (collectively " Defendants" ).

During the pendency of this litigation, in March 2012, Martin filed a second retaliation complaint with the DCOHR and EEOC, alleging retaliation for both this lawsuit and her earlier discrimination complaints. See Charge, Defs.' Ex. G, ECF No. 118-10. In May 2014, the DCOHR issued a no-cause finding on this retaliation claim. See DCOHR letter, Defs.' Ex. H, ECF No. 118-11.

Subsequently, Defendants moved to dismiss and for summary judgment on Martin's outstanding claims. See ECF No. 118. After Martin filed her opposition and Defendants replied, Martin moved for sanctions and to strike certain exhibits in support of Defendants' motion, alleging that Defendants had failed to disclose those exhibits during discovery, in violation of Federal Rule of Civil Procedure 37(c)(1). See ECF No. 131. Both motions are now ripe for adjudication.


Federal Rule of Civil Procedure 37(c)(1) provides that a party who " fails to provide information or identify a witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or witness to supply evidence on a motion . . ., unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1).

" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted); see also Fed.R.Civ.P. 12(b)(6). A court need not accept as true a plaintiff's legal conclusions or " naked assertions devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (citation, alterations, and internal quotation marks omitted).

Under Federal Rule of Civil Procedure 56, " [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party moving for summary judgment bears the " initial responsibility" of demonstrating " the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party must " go beyond the pleadings" and " designate specific facts showing that there is a genuine issue for trial." Id. at 324 (citation and internal quotation marks omitted). In determining whether a genuine issue exists, a court must refrain from making credibility determinations or weighing the evidence; rather, " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


Martin's remaining claims are those brought against the District (All Counts); against Moosally (Counts Four, Five, Seven, Eight, Nine, Eleven, and Twelve); and against Jackson, Stewart, and Delaney (Counts Four, Five, Eight, Nine, Eleven, and Twelve). Defendants have moved to dismiss or for summary judgment on all of these counts. Martin has moved for sanctions and to strike exhibits in support of Defendants' motion. Because the disposition of Martin's motion could potentially affect the Court's assessment of Defendants' motion, the Court addresses Martin's motion first.

A. Martin's Motion for Sanctions and to Strike Exhibits

Martin moves under Federal Rule of Civil Procedure 37(c) to strike certain exhibits in support of Defendants' motion to dismiss and for summary judgment, and for other sanctions as this Court deems appropriate. See Pl.'s Mot. Sanctions & Strike Exs., ECF No. 131. Martin contends that the exhibits at issue were not disclosed by Defendants as required by Rule 26(a)(1), and that Rule 37(c) sanctions are warranted because the failure to disclose was not harmless. See id. at 7-8; Fed.R.Civ.P. 37(c).[7] Defendants concede that they failed to file their Rule 26(a)(1) initial disclosure but argue that Martin's motion is untimely and, alternatively, that the lack of disclosure was harmless. See Opp'n Pl.'s Mot. Sanctions 1-3, ECF No. 132.

The Court declines to strike exhibits or impose any sanctions. First, Martin's motion was not timely. " The timeliness of a [Rule 37(c)] motion for sanctions depends on such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court's attention, and whether discovery has been completed." Long v. Howard Univ., 561 F.Supp.2d 85, 91 (D.D.C. 2008). Here, Martin learned of the discovery violation in April 2012 and waited over two years--until after discovery had closed (and after summary judgment briefing had concluded)--to move for sanctions. See Opp'n Pl.'s Mot. Sanctions 2.

Moreover, Martin has failed to establish that Defendants' discovery violation prejudiced her. See Fed.R.Civ.P. 37(c)(1) (authorizing exclusion of undisclosed evidence " unless the failure [to disclose] . . . is harmless" ). As Defendants explain, most of the exhibits that Martin seeks to

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strike were produced during discovery by Martin herself.[8] Of the three exhibits that were not, only one was not produced during discovery by Defendants--the no-cause finding determination sent to Martin from the DCOHR. See DCOHR letter, Defs.' Ex. H. This omission is understandable: The letter, dated May 14, 2014, did not exist when discovery closed in February 2014. See id.; Minute Order of Jan. 28, 2014 (extending discovery deadline to February 28, 2014). Furthermore, the letter was addressed to Martin, who presumably was fully aware of its content before Defendants filed it as a supporting exhibit. See DCOHR letter, Defs.' Ex. H.

Martin's only concrete assertion of prejudice is that she was unable to examine Jackson about his affidavit because she allegedly did not receive the affidavit prior to his deposition. See Pl.'s Mot. Sanctions & Strike Exs. 8 (citing Wannall v. Honeywell Int'l, Inc., 292 F.R.D. 26, 36 (D.D.C. 2013) (holding that party was prejudiced " by being unable to cross-examine [expert witness] about his new opinions" disclosed only after discovery)). Martin's contention is unfounded: She possessed a copy of the Jackson affidavit prior to discovery, as she subsequently produced it to Defendants.[9] Moreover, in their discovery responses, Defendants also provided Martin with a copy of the same affidavit. See Opp'n Pl.'s Mot. Sanctions 3.

Accordingly, the Court denies Martin's motion for sanctions and to strike exhibits in support of Defendants' motion.

B. Disparate Treatment on the Basis of Gender in Violation of Title VII, of Disability in Violation of the ADA, and of Age in Violation of the ADEA (Counts One, Five, and Ten)

Martin alleges that the District discriminated against her on the basis of her gender, disability, and age, in violation of Title VII, the ADA, and the ADEA, respectively. Because her claims of gender, disability, and age discrimination are premised on many of the same factual allegations related to promotion, training, work assignments, volunteer opportunities, overtime pay, and other work benefits, the Court proceeds by analyzing each set of factual allegations under the relevant legal theories. See Am. Compl. ¶ ¶ 119-23, 139-41, 197-200.

1. Legal Framework for Disparate-Treatment Discrimination under Title VII, the ADA, and the ADEA

Title VII makes it unlawful for an employer to discriminate against an individual " because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1), (2). Such discrimination includes " fail[ing] or refus[ing] to hire . . . any individual, or otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment" or " limit[ing] . . . his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee . . . ." Id.

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Where a Title VII plaintiff proffers " only indirect evidence" of discrimination, courts apply the three-part burden-shifting framework of McDonnell Douglas Corp. v.Green. Taylor v. Small, 350 F.3d 1286, 1292, 358 U.S.App.D.C. 439 (D.C. Cir. 2003). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination; the employer then must articulate a legitimate, nondiscriminatory reason for its action; and finally, the plaintiff must show that the employer's reason was a pretextual cover for discrimination. 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A plaintiff " makes out a prima facie case of disparate-treatment discrimination by establishing that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Czekalski v. Peters, 475 F.3d 360, 364, 374 U.S.App.D.C. 351 (D.C. Cir. 2007) (citation and internal quotation marks omitted).[10] In the context of a failure to hire or promote, an inference of discrimination can be established by a plaintiff's elimination of " the two most common legitimate reasons . . . to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought." Stella v. Mineta, 284 F.3d 135, 145, 350 U.S.App.D.C. 300 (D.C. Cir. 2002) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).

Where a plaintiff has suffered an " adverse employment action" and her employer asserts a " legitimate, non-discriminatory reason" for the alleged discrimination, the district court must forgo the McDonnell Douglas burden-shifting framework. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494, 380 U.S.App.D.C. 283 (D.C. Cir. 2008). Instead, at summary judgment, " the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of . . . sex . . . ?" Id. A plaintiff can demonstrate that the employer's stated reason was " not the actual reason" by " produc[ing] evidence suggesting that the employer treated other employees of a different . . . sex . . . more favorably in the same factual circumstances" or by showing that the employer " is making up or lying about the underlying facts . . . ." Id. at 495. " If the employer's stated belief about the underlying facts is reasonable in light of the evidence, however, there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts." Id. (citing George v. Leavitt, 407 F.3d 405, 415, 366 U.S.App.D.C. 11 (D.C. Cir. 2005) (" [A]n employer's action may be justified by a reasonable belief in the validity of the reason given even though that reason may turn out to be false." )).

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Under Brady, the prima facie case still plays a role under certain circumstances. Where an employer offers no nondiscriminatory reason for its actions, a plaintiff must still make out a prima facie case. See Brady, 520 F.3d at 494 n.2 (explaining that prima facie case still " matters" where " defendant does not assert any legitimate, nondiscriminatory reason for the decision" ). Additionally, when a plaintiff successfully demonstrates that an employer's proffered nondiscriminatory reason is " not the actual reason," the plaintiff must still show that " the employer intentionally discriminated against the employee on the basis of . . . sex . . . [.]" Id. at 494.[11] In deciding this latter issue, " courts since Brady have used evidence from the prima facie case (without deciding whether there is one or not) as well as evidence of pretext . . . ." Pederson v. Mills, 636 F.Supp.2d 78, 82 n.2 (D.D.C. 2009) (explaining that Brady " broaden[ed]" the summary judgment inquiry); see also Evans v. District of Columbia, 754 F.Supp.2d 30, 44 (D.D.C. 2010) (" The evidence to consider [in resolving Brady 's central inquiry] includes ...

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