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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,
v.
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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MEMORANDUM OPINION

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

I. INTRODUCTION

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.

II. FACTUAL BACKGROUND[1]

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.

III. LEGAL STANDARDS

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).

IV. ANALYSIS

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 (1) the plaintiff's prima facie case, (2) any evidence the plaintiff presents to attack the employer's proffered explanation, and (3) any further evidence of discrimination that may be available to the plaintiff." ).

Under Section 102 of the ADA, " [n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The EEOC regulations elaborate on the scope of such discrimination, prohibiting discrimination " in regard to . . . promotion, . . . [j]ob assignments, . . . training, . . . [and] [a]ny other term, condition, or privilege of employment." 29 C.F.R. § 1630.4(a)(1)(ii), (iv), (vii), (ix). To make out a prima facie case of discrimination under the ADA, the plaintiff must show that " he had a disability within the meaning of the ADA, that he was 'qualified' for the position with or without a reasonable accommodation, and that he suffered an adverse employment action because of his disability." Swanks v. Wash. Metro. Area Transit Auth., 179 F.3d 929, 934, 336 U.S.App.D.C. 319 (D.C. Cir. 1999).

The ADEA makes it unlawful for an employer to discriminate against an individual " because of such individual's age." 29 U.S.C. § 623(a)(1), (2). As with Title VII, 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 . . . 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. To establish a failure-to-hire prima facie case under the ADEA, the plaintiff must show that " 1) she is a member of the protected class ( i.e., over 40 years of age); (2) she was qualified for the position for which she applied; (3) she was not hired; and (4) she was disadvantaged in favor of a younger person." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155, 361 U.S.App.D.C. 214 (D.C. Cir. 2004); see also 29 U.S.C. § 631(a) (providing that ADEA protects individuals " who are at least 40 years of

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age" ). " The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age." O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). However, an inference of discrimination cannot be drawn from the fact that a plaintiff lost out to an " insignificantly younger" individual. Id. at 313.

The Brady framework governs ADEA and ADA disparate-treatment discrimination claims. See Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358, 404 U.S.App.D.C. 439 (D.C. Cir. 2013) (ADEA); Adeyemi v. District of Columbia, 525 F.3d 1222, 1226, 381 U.S.App.D.C. 128 (D.C. Cir. 2008) (ADA). That is, " [o]nce an employer has offered a legitimate reason for an [adverse employment action], the question at the summary judgment stage is whether the employee has 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 . . . age" or disability. Barnett, 715 F.3d at 358 (citation and internal quotation marks omitted).[12]

2. Reduction in Work Assignments[13]

In Count Five, Martin alleges that her work assignments were reduced on account of her carpal tunnel syndrome, in violation of the ADA. See Am. Compl. ¶ 141. In Count One, Martin asserts that her gender was also a basis for discrimination as to her " work assignments," in violation of Title VII. See Am. Compl. ¶ 120.[14]

At the outset, the Court dismisses the ADA claim--Count Five--as to defendants Moosally, Jackson, Stewart, and Delaney. As the Court explained in dismissing the same count against Brodsky, " [t]here is no liability under the ADA for a

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person in his individual capacity." Martin, 968 F.Supp.2d at 166 (citing Cooke-Seals v. District of Columbia, 973 F.Supp. 184, 186-87 (D.D.C. 1997)).[15] As with Brodsky, the amended complaint names Moosally, Jackson, Stewart, and Delaney as defendants only in their " individual capacit[ies]." See Am. Compl. 1-2. Thus, the District is the only remaining defendant in Count Five.[16]

a. Disability Discrimination under the ADA

In its motion, the District neither asserts a nondiscriminatory reason for Martin's workload reduction, nor contests record evidence that the reduction was motivated by Martin's carpal tunnel syndrome and that it lasted at least through August 2010. See Nickens Aff. ¶ 6, Pl.'s Ex. 58 (" [Jackson] stated that if [Martin] could not type she could not get any cases." ); Martin Aff. ¶ ¶ 29, 90, Pl.'s Ex. 74; see also 29 C.F.R. § 1630.4(a)(1)(iv) (prohibiting discrimination as to " job assignments" ). Rather, the District attacks Martin's prima facie case, contending that Martin's carpal tunnel syndrome did not constitute a " disability" under the ADA. See Mem. Supp. Mot. Dismiss & Summ. J. 17.

The ADA provides that no covered entity shall " discriminate against a qualified individual on the basis of disability . . . ." 42 U.S.C. § 12112(a). A " qualified individual" means " an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position . . . ." Id. § 12111(8). The term " disability" refers to, among other things, " a physical or mental impairment that substantially limits one or more major life activities," id. § 12102(1)(A), and " major life activities" include tasks such as " performing manual tasks, . . . lifting, . . . communicating, and working," id. § 12102(2)(A).

In contending that Martin's carpal tunnel syndrome cannot constitute a disability, the District invokes a Ninth Circuit opinion for the proposition that typing does not qualify as a " major life activity." Mem. Supp. Mot. Dismiss & Summ. J. 17 (citing Thornton v. McClatchy Newspapers, Inc., 292 F.3d 1045, 1046 (9th Cir. 2002)); see also 42 U.S.C. § 12102(1)(A).[17] That Ninth Circuit decision in turn relied on Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), in which the Supreme Court explained that " to be substantially limited in performing manual tasks" --one category of " major life activity" provided in the statute--" an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance in most people's daily lives." Thornton, 292 F.3d at 1046

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(quoting Williams, 534 U.S. at 198).

Subsequently, however, Congress expressly rejected the Williams Court's narrow interpretation of " disability" under the ADA, as explained in the " Findings and Purposes" section of the ADA Amendments Act of 2008 (" ADAA" ). See ADAA, Pub. L. No. 110-325, § 2(b)(4), 122 Stat. 3553, 3554 (2008). As amended, the ADA expressly provides that the term " disability" " shall be construed in favor of broad coverage of individuals . . . ." 42 U.S.C. 12102(4)(A). Similarly, " substantially limits" must be " interpreted consistently with the findings and purposes of the [ADAA]," and an impairment need substantially limit only one major life activity to qualify as a disability. Id. § 12102(4)(B), (C). The amended regulations provide that " substantially limits" is " not meant to be a demanding standard," 29 C.F.R. § 1630.2(j)(1)(i), and shall be construed " to require a degree of functional limitation that is lower than the standard" that predated the ADAA, id. § 1630.2(j)(1)(iv). Similarly, " major life activity" must neither be read to " create a demanding standard" nor be defined " by reference to whether it is of 'central importance to daily life.'" Id. § 1630.2(i)(2).[18]

In light of the ADAA's broad definition of " disability," the Court concludes that the District has failed to demonstrate that Martin lacked a " disability" as a matter of law. Celotex, 477 U.S. at 323.[19] Martin has produced a December 2008 letter from her doctor advising her against typing for three months. See Dr. Mody letter, Pl.'s Ex. 59. Her problems did not subside after three months; in 2010, Martin inquired on several occasions about the availability of voice recognition software. Martin correspondence, Pl.'s Ex. 64. In September 2011, after Martin

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had undergone surgery and occupational therapy, her doctor instructed her to limit working hours to four hours per day and computer usage to one hour per day; to avoid grasping, pushing, and pulling; and to observe weight limits for lifting and time limits for standing, walking, sitting, and driving. See Dr. Mosely recommendations, Pl.'s Ex. 65.

On this record, a jury could find that when Jackson decided to reduce her workload, Martin had a " physical . . . impairment that substantially limit[ed]" the major life activity of " working" insofar as her job required typing. 42 U.S.C. § 12102(1)(A), (2)(A). A jury could also find that in 2011, her condition limited several other major life activities, including " manual tasks, . . . walking, standing, lifting, . . ., [and] communicating." Id. Based on these findings, a jury could conclude that Martin was an individual with a " disability," especially in light of the statutory instruction that " disability" should be interpreted " in favor of broad coverage of individuals." Id. § 12102(4)(A). The Court takes additional guidance from Congress's intent that " the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis," and that courts should instead focus on determining whether defendants " have complied with their obligations" under the ADA. ADAA, Pub. L. No. 110-325, § 2(b)(5), 122 Stat. 3553, 3554 (2008). Because there remains a dispute of material fact as to whether carpal tunnel syndrome is a " disability," the District is not entitled to summary judgment on Martin's disability-based discrimination claim in Count Five.[20]

b. Gender Discrimination under Title VII

Martin asserts in Count One that her gender was also a basis for discrimination as to her " work assignments," in violation of Title VII. See Am. Compl. ¶ 120. Although the District moves generally for summary judgment on all disparate-treatment claims in Count One, see Mem. Supp. Mot. Dismiss & Summ. J. 9, it does not address the " work assignments" claim in its motion--neither offering a nondiscriminatory reason nor attacking Martin's prima facie case.[21] Nonetheless, to proceed,

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Martin still must establish the elements of a prima facie case. See Brady, 520 F.3d at 494 n.2.

A plaintiff asserting a Title VII gender-discrimination claim " 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, 475 F.3d at 364 (internal quotation marks omitted). The first prong is satisfied, as Martin is a female protected by Title VII. The second prong would not bar Martin's claim either: Her evidence establishes that the reduction in her workload was substantial and lasted into 2010. See Martin Aff. ¶ 90, Pl.'s Ex. 74; cf. Holcomb v. Powell, 433 F.3d 889, 903, 369 U.S.App.D.C. 122 (D.C. Cir. 2006) (holding that " precipitous reduction in the complexity of [plaintiff's] work and the substantial amount of time it took to correct these deficiencies" constituted adverse employment action as to Title VII retaliation claim).

The third prong of the Title VII disparate-treatment prima facie case is that " the unfavorable action gives rise to an inference of discrimination," Czekalski, 475 F.3d at 364, which inference a plaintiff can establish by eliminating " 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, 284 F.3d at 145. Here, Martin's evidence could support a finding that she was still qualified to handle her normal workload, despite her inability to type for three months. See Dr. Mody letter, Pl.'s Ex. 59 (advising against keyboard use for three months); Jackson memo, id. (" [W]here [Martin] is working with another ABRA investigator and they observe a violation, the other investigator is to take the lead and prepare the report." ).[22] Furthermore, there was no absence of a job " vacancy," since Martin's cases were simply reassigned to her colleague. See Nickens Aff. ¶ 6, Pl.'s Ex. 58.[23]

Because Martin's evidence rules out " the two most common legitimate reasons" for reducing her workload, she has made out a prima facie case for her claim that the reduction was based on her gender.

* * *

Accordingly, the Court dismisses all claims in Count Five as to defendants

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Moosally, Jackson, Stewart, and Delaney. The Court denies summary judgment on Counts One and Five as to Martin's claim against the District that, on account of her gender and disability, respectively, she suffered the disparate treatment of a reduced workload.

3. Denial of Promotion to Supervisory Investigator

Martin alleges that she was denied a promotion to Supervisory Investigator on the basis of her gender, disability, and age. See Am. Compl. ¶ ¶ 15-23, 119-23, 139-45, 197-200. In response, the District proffers a nondiscriminatory reason for the denial: ABRA was advised by the DCHR that Martin was ineligible for the promotion under the " time-in-grade" rule because she had occupied her current position for less than one year. Mem. Supp. Mot. Dismiss & Summ. J. 10 (citing Jackson Aff. ¶ 3, Defs.' Ex. I). As evidence of the DCHR's guidance, the District cites a Selection Certificate listing three individuals deemed eligible for the promotion--not including Martin. See id. at 10-11 (citing Selection Certificate, Defs.' Ex. J).

In arguing that the District's reason was pretextual, Martin does not contend that she was eligible for promotion under the time-in-grade rule. Indeed, she effectively concedes that she did not have one year's time in grade. See Pl.'s Am. Statement of Facts ¶ 38 (stating that interviewee " also" had less than one year's time in grade). Nor does she challenge the facial validity of the time-in-grade rule or its applicability to her. Rather, Martin submits that a jury could find the District's reason to be pretextual on the basis of evidence that ABRA management interviewed, extended offers to, and ultimately promoted Investigators who also failed to satisfy the time-in-grade rule. The Court agrees with Martin: Based on this record, a jury could conclude that ABRA did not " honestly and reasonably believ[e]" that its time-in-grade rule was a valid basis for refusing to consider Martin. Brady, 520 F.3d at 496 (emphasis omitted); id. at 495 n.3 (explaining that finding that proffered reason was " not the actual reason" can be established by showing " inconsistencies in the stated reasons for the adverse action" ).

When an employer cites a facially nondiscriminatory policy as a reason for an adverse employment action, the plaintiff can undermine that reason by showing that the policy is waived or applied more leniently to a similarly situated employee. In Mungin v. Katten Muchin & Zavis, Mungin, an attorney hired laterally by the Katten law firm, alleged that because of his race, his starting salary was lower than that of other sixth-year associates. 116 F.3d 1549, 1554, 325 U.S.App.D.C. 373 (D.C. Cir. 1997). Katten's nondiscriminatory reason was that under the firm's policy, all lateral hires were paid less--in an amount between the associate's former salary and the salary of current Katten associates. Id. On appeal, Mungin contended that the firm's reason was pretextual because it " never demonstrated that such a policy was ever consistently and systematically enforced," citing the higher salaries of white sixth-year associates. Id. But the D.C. Circuit disagreed, explaining that Mungin had compared his pay only to that of " homegrown" associates and had failed to identify any " nearly identical" lateral hires " to whom this policy was not enforced." Id. (citations and internal quotation marks omitted).[24]

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Unlike Mungin, Martin has identified " nearly identical" colleagues who were treated more favorably in spite of the time-in-grade rule. Id. at 1514. Martin's evidence suggests that three colleagues--Price, Matthews, and Stewart--were, like her, ineligible under the time-in-grade rule at the time they sought promotions to Supervisory Investigator.[25] Yet unlike her, they were interviewed and, in the case of Stewart and Price, actually promoted.[26] This inconsistency suggests that even if the time-in-grade rule was formally in effect, it was not " consistently and systematically enforced." Id.

The inquiry cannot end here, however, because as the District correctly notes, a plaintiff must do more than show the employer's nondiscriminatory reason to be " false" : She must demonstrate that the employer's action is not " justified by a reasonable belief in the validity of the reason given . . . ." George, 407 F.3d at 415 (emphasis added). Indeed, " it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247, 393 U.S.App.D.C. 305 (D.C. Cir. 2011) (citation omitted). The District claims that ABRA management reasonably relied on the DCHR's Selection Certificate, even if the Certificate was inaccurate. See Mem. Supp. Mot. Dismiss & Summ. J. 10-11 (" DCHR, not ABRA, selected the candidates who were qualified for the position and should be interviewed." ). The Certificate purports to identify three individuals eligible for the promotion, and Martin was not among them. See Selection Certificate, Defs.' Ex. J.

However, the Court concludes that the Selection Certificate is unavailing and, in fact, bolsters Martin's argument that the time-in-grade rule was " not the actual reason" for ABRA's action. Brady, 520 F.3d at 494. In short, Martin has introduced evidence sufficient for a jury to conclude that the Selection Certificate is not the binding guidance the District makes it out to be. First, Martin's evidence suggests

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Hthat on at least one past occasion, ABRA management attempted to fill a vacancy by first identifying the candidate it wished to hire, and then asking the DCHR to place that candidate's name on a Selection Certificate. See Farouk email of Feb. 15, 2008, Pl.'s Ex. 30. This procedure suggests that the Selection Certificate is a mere formality, that ABRA management--not DCHR--decides which employees to promote, and that the notion of " eligibility" is subject to manipulation. Second, although the Selection Certificate here appears to bear a list of eligible employees, the Certificate was dated October 31, 2008, and Martin has produced interview notes dating from October 24, 2008. See Selection Certificate, Defs.' Ex. J; Interview notes, Pl.'s Ex. 39. The fact that interviews took place before the Selection Certificate's issuance further supports an inference that ABRA management was not bound by names listed therein.[27]

Moreover, the Certificate, viewed in the light most favorable to Martin, appears to contravene the District's own policies for waiver of the time-in-grade rule, further suggesting that the rule was not consistently enforced. Under District Personnel Manual Instruction No. 8-59, each job candidate appearing on a Selection Certificate who is ineligible under the time-in-grade rule must be marked with an asterisk, accompanied by an explanation of time-in-grade waiver procedures. See DPM Instruction No. 8-59 § 6(c), D.C. Department of Human Resources, http://dchr.dc.gov/publication/issuance-i-8-59 (last visited Jan. 15, 2015).[28] Both Matthews and Price are listed on the Certificate, and if both men were ineligible under the time-in-grade rule (as Martin's evidence suggests), then asterisks should have appeared by their names with the relevant explanation. See Selection Certificate, Defs.' Ex. J. There are no such asterisks or explanations, and the Court concludes that this absence could further suggest that the time-in-grade rule was not rigorously or consistently enforced. Thus, Martin has proffered sufficient evidence that could support a jury finding that ABRA's action was not " justified by a reasonable belief in the validity of the reason given." George, 407 F.3d at 415.

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Having concluded that Martin's evidence could show that the District's nondiscriminatory reason was " not the actual reason" for its action, the Court must now ask whether the evidence could also show that " the employer intentionally discriminated against the employee" on the unlawful basis. Brady, 520 F.3d at 494. Accordingly, the Court reviews holistically Martin's evidence of discrimination supporting her claims of disparate treatment based on gender, disability, and age. See Evans, 754 F.Supp.2d at 44 (examining evidence for pretext, prima facie case, and any " further evidence of discrimination" ).

a. Gender Discrimination under Title VII

Martin's evidence could support a jury finding that ABRA " intentionally discriminated" against her on the basis of her gender. Brady, 520 F.3d at 494. In addition to Martin's evidence supporting a prima facie case,[29] she has introduced " further evidence of discrimination." See Evans, 754 F.Supp.2d at 44.

As to the evidence of a prima facie case, the District does not dispute that Martin is a member of a protected class and that the denial of the promotion was an adverse employment action. Likewise, a jury could draw an inference of discrimination because Martin's evidence does not establish either her " absolute or relative lack of qualifications or the absence of a vacancy in the job sought." See Stella, 284 F.3d at 145. The Supervisory Investigator position was vacant when Martin applied in 2008, and the District's only claim that Martin lacked " qualifications" --that she was ineligible under the time-in-grade rule--has not stood up to Martin's evidence that this explanation was not the " actual reason" for ABRA's decision. Brady, 520 F.3d at 494; id. at 496 n.4 ( " [D]iscrediting an employer's asserted reason is often quite probative of discrimination." (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000))).

There is also indirect evidence of discriminatory animus in the form of later statements made by Jackson. In August 2009, Jackson told Martin's colleague that he should be " ashamed . . . for being co-dependent on a '[w]oman'" --Martin. Nickens Aff. ¶ 8, Pl.'s Ex. 58. Moreover, in October 2009, Jackson stated that he was hiring " four . . . new male [I]nvestigators" to " 'balance' out the 'mess' in the office." Id. ¶ 10; see also Martin Aff. ¶ 46, Pl.'s Ex. 74 (" Chief Jackson added that they were older males, so that they could balance out the office." ). Considering the " totality of the circumstances of the case," the Court concludes that the District is not entitled to summary judgment on Martin's gender discrimination claim as to her denial of the promotion to Supervisory Investigator. Evans, 754 F.Supp.2d at 44 (citing Reeves, 530 U.S. at 147).

b. Disability Discrimination under the ADA

Martin has not shown that ABRA " intentionally discriminated against [her] on the basis of [her disability]" by denying her the promotion, Brady, 520 F.3d at 494, because she has not proffered evidence that she had a " disability" at the time of the denial, 42 U.S.C. § 12112(a); Swanks, 179 F.3d at 934. Martin was allegedly denied the promotion in October 2008, when ABRA officials allegedly declined to invite her to interview. See Jackson email of Oct. 27, 2008, Pl.'s Ex. 40; Martin Aff. ¶ 16, Pl.'s Ex. 74 (explaining that on October

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1, 2008, Martin learned from Jackson and Delaney that she was ineligible for the promotion). But not until November 7, 2008, did she experience the initial numbness in her hand that prompted her later doctor's visit and carpal tunnel syndrome diagnosis in December 2008. See Martin Aff. ¶ 20, Pl.'s Ex. 74; Mody letter, Pl.'s Ex. 59. Thus, the District is entitled to summary judgment on Martin's claim of disability discrimination as to the denied promotion.

c. Age Discrimination under the ADEA

An ADEA plaintiff must establish as part of her prima facie case that she was " disadvantaged in favor of a younger person." Teneyck, 365 F.3d at 1155. An inference of discrimination cannot be drawn from the fact that a plaintiff lost out to another individual who was " insignificantly younger." O'Connor, 517 U.S. at 313. Martin has neither alleged that Price is younger than she is nor proffered any evidence of his age.[30] Accordingly, the Court concludes that the District is entitled to summary judgment on Martin's claim of age discrimination as to the denied promotion.

* * *

The Court grants the motion for summary judgment on Counts Five and Ten as to Martin's claims that she was denied the promotion to Supervisory Investigator on the basis of her disability and age, respectively. The Court denies the motion for summary judgment on Count One as to the claim that this denial was based on gender.[31]

4. Denial of Relief Supervisory Investigator Assignment

Martin alleges that she was denied the opportunity in June 2009 to serve as a Relief Supervisory Investigator on the basis of her gender, disability, and age. See Am. Compl. ¶ ¶ 24-25, 119-23, 139-45, 197-200. The District fails to assert any nondiscriminatory reason for Martin's loss of

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this opportunity.[32] Because the District offers no nondiscriminatory reason, the Court must determine whether Martin has made out a prima facie case. See Brady, 520 F.3d at 494 n.2.

a. Gender Discrimination under Title VII

As explained above, a Title VII 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, 475 F.3d at 364 (citation and internal quotation marks omitted). The first prong is easily satisfied, as Martin is a female protected under Title VII. Likewise, the third prong is no obstacle: A jury could draw an " inference of discrimination" because the record rules out " the two most common legitimate reasons" for denying an opportunity--" absolute or relative lack of qualifications or the absence of a vacancy . . . ." Stella, 284 F.3d at 145 (citation omitted). The District's own evidence establishes that all Investigators were qualified to serve as Relief Supervisory Investigator, and the District does not deny that Martin was presented with such an opportunity in June 2009. Jackson Aff. ¶ 5, Defs.' Ex. I.[33]

The remaining question for Martin's prima facie case is whether the June 2009 denial of an opportunity to serve as Relief Supervisory Investigator constitutes an " adverse employment action." Such an action must result in " materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Douglas v. Preston, 559 F.3d 549, 552, 385 U.S.App.D.C. 120 (D.C. Cir. 2009); see also 42 U.S.C. § 2000e-2(a)(1). Certain decisions are " conclusively presumed to be adverse employment actions" because they directly impact employment status--hiring, firing, failing to promote, and reassignment with significantly different responsibilities. Id. at 552-53. By

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contrast, when a plaintiff challenges an employment action " that do[es] not obviously result in a significant change in employment status . . . [she] must go the further step of demonstrating how the decision nonetheless caused . . . an objectively tangible harm." Id. at 553. To inflict objectively tangible harm, the " denial of a training opportunity" must cause a " material change in [one's] employment conditions, status or benefits." Casey v. Mabus, 878 F.Supp.2d 175, 184 (D.D.C. 2012) (quoting Lester v. Natsios, 290 F.Supp.2d 11, 29 (D.D.C. 2003)). Actionable harm resulting from lost training can consist of " a failure to promote or a loss of career advancement opportunities." Trachtenberg v. Dep't of Educ. of City of New York, 937 F.Supp.2d 460, 468 (S.D.N.Y. 2013) (citations omitted). Put differently, denial of training that is a " stepping-stone" for advancement is an adverse employment action. Cruz v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 13-cv-1335, 2014 WL 2547541, at *5 (S.D.N.Y. June 4, 2014).

The Court concludes that Martin's evidence is sufficient to support a finding of " objectively tangible harm" because it suggests that the volunteer Relief Supervisory Investigator position was a " stepping-stone" for promotion to Supervisory Investigator, see Cruz, 2014 WL 2547541, at *5, and that she had thus been denied tangible " career advancement opportunities," Trachtenberg, 937 F.Supp.2d at 468. The crux of this inquiry is the materiality of the management training afforded by service as Relief Supervisory Investigator.[34] Martin asserts that Matthews and Stewart, who were promoted to Supervisory Investigator, both " served in volunteer positions with similar duties . . . ." Am. Pl.'s Mem. Supp. Pl.'s Resp. Opp'n 9. Martin contends that a jury could find that the loss of these volunteer opportunities " harmed her future employment opportunities and competitive promotional opportunities within [ABRA]." Id.

Martin's inferences find support in her proffered evidence. First, the career paths of the three individuals promoted to Supervisory Investigator all included a period of service as Relief Supervisory Investigator. Stewart and Matthews, both promoted in November 2009, had both previously served as Relief Supervisory Investigator, as did Price, who was promoted in November 2008.[35] Cf. Casey, 878 F.Supp.2d at 184 (dismissing denial-of-training claim on basis that plaintiff's contention that training would have " increased her potential for career advancement" was " pure speculation" ).

Second, record evidence suggests that the position of Relief Supervisory Investigator was seen as a form of career advancement itself. An individual who was removed in 2007 from his service as Acting Supervisory Investigator protested the action as a " demotion." See Coward email of Dec. 7, 2007, Pl.'s Ex. 29, ECF No. 128-29. Jackson himself, in a 2008 email soliciting volunteers for the position, asked Investigators

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to respond " if [they] would like to be considered to participate in the management program as a Relief Supervisor or Acting Supervisory Investigator." Jackson email of Sept. 10, 2008, Defs.' Ex. K, ECF No. 118-14 (emphasis added). In short, the evidence could lead a jury to conclude that the Relief Supervisory Investigator position, while in name a volunteer post, was in fact an informal promotion and change in " status" that carried significant weight when formal promotion decisions were made. Casey, 878 F.Supp.2d at 184; cf. Yee v. Dep't of Envtl. Servs., Multnomah Cnty., 826 F.2d 877, 882 (9th Cir. 1987) (rejecting district court's finding of lack of pretext on basis of evidence that Title VII plaintiff's Caucasian colleague " was given preferential treatment in access to training opportunities and in de facto promotion to supervisory responsibilities before the vacancy in the supervisor position" ).

The Court is mindful of the imperative to avoid " judicial micromanagement of . . . employers' decisions about which of several qualified employees will work on a particular assignment." Baloch v. Kempthorne, 550 F.3d 1191, 1197, 384 U.S.App.D.C. 85 (D.C. Cir. 2008) (citation and internal quotation marks omitted). But here, Martin has produced evidence suggesting that the Relief Supervisory Investigator positions are more than ordinary assignments. Rather, a jury could conclude that they are at least informal prerequisites for promotion or, at most, de facto promotions. In denying such unique opportunities, ABRA must observe its obligations under Title VII, as it would in denying any other " conditions, status or benefits" of employment. See Casey, 878 F.Supp.2d at 184.

Because Martin has established a prima facie case of gender discrimination as to her denied opportunity to serve as Relief Supervisory Investigator, the District is not entitled to summary judgment on this claim.

b. Disability Discrimination under the ADA

To make out a prima facie case of discrimination under the ADA, Martin must show that " [she] had a disability within the meaning of the ADA, that [she] was 'qualified' for the position with or without a reasonable accommodation, and that [she] suffered an adverse employment action because of [her] disability." Swanks, 179 F.3d at 934. Martin's evidence could support findings that she had a disability, see supra Part IV.B.2.a, that she would have been qualified with or without a reasonable accommodation, see supra Part IV.B.2.b, and that the June 2009 denial of the Relief Supervisory Investigator opportunity constitutes an " adverse employment action," see supra Part IV.B.4.a.

Martin's prima facie case thus hinges on whether she lost out on the opportunity " because of [her] disability." Swanks, 179 F.3d at 934. Here, the only relevant evidence shows that Martin was disabled in June 2009, and that Stewart was selected. See Jackson email of June 11, 2009, Pl.'s Ex. 49. The record is silent as to whether Stewart was disabled; indeed, Martin does not advance an allegation one way or another. See Am. Compl. ¶ 25 (describing Stewart as " an African American male under 40 years of age, with military and law enforcement background" ). Although the Court must view factual disputes in the light most favorable to Martin, it cannot assume facts in the absence of any evidentiary support. See Celotex, 477 U.S. at 324 (describing nonmovant's duty to " designate specific facts showing that there is a genuine issue for trial" ).

To frame this analysis, the Court opts to proceed under the arguendo premise that Stewart was disabled. The resultant inquiry implicates an open question in the

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D.C. Circuit: Is evidence that the disabled plaintiff was rejected in favor of a non-disabled individual necessary to demonstrate that the plaintiff suffered the rejection " because of [her] disability" for purposes of her prima facie case? Swanks, 179 F.3d at 934.[36] Most courts of appeals have answered in the negative--including the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. See Craig Robert Senn, Minimal Relevance: Non-Disabled Replacement Evidence in ADA Discrimination Cases, 66 Baylor L.Rev. 65, 82-88 (2014) (reviewing cases).[37] Notably, in adopting this rule, the Seventh Circuit relied on the Supreme Court's holding in O'Connor that under the ADEA, a plaintiff need not show that discrimination favored an individual outside of the protected class in order to make out a prima facie case of age discrimination. See Leffel v. Valley Fin. Servs., 113 F.3d 787, 792-93 (7th Cir. 1997). Following O'Connor 's rationale, the court explained that the selection of a non-disabled individual " is not required to make out a prima facie case, so long as there is some evidence from which one can infer that the employer took adverse action against the plaintiff on the basis of a statutorily proscribed criterion." Id. at 793 (explaining earlier parallel holding in Title VII context). The court went on to explain that " the nature of the proof giving rise to the requisite inference of discrimination cannot be reduced to a formula that will serve any and all discrimination cases." Id. " All that is necessary," reasoned the court, " is that there be evidence reasonably suggesting that the employer would not have taken adverse action against the plaintiff had she not been disabled and everything else had remained the same." Id. at 794.

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Because the D.C. Circuit has already applied the rationale of O'Connor in the Title VII gender discrimination context, see Stella, 284 F.3d at 145-46, this Court is persuaded that the D.C. Circuit, like the Seventh Circuit in Leffel, would do the same under the ADA. Accordingly, this Court concludes that in establishing rejection " because of [her] disability" under the ADA at the prima facie case stage, a plaintiff need not introduce evidence that a non-disabled individual was selected. Swanks, 179 F.3d at 934.

Applying the above principles, the Court finds that Martin has established a prima facie case of disability discrimination as to the denial of the Relief Supervisory Investigator opportunity. She has proffered evidence that she was disabled, and the (assumed) fact that Stewart was also disabled would not be fatal to her prima facie case because Martin has introduced " some evidence" of discriminatory hostility based on her disability. Leffel, 113 F.3d at 793. When Martin initially reported her condition to Jackson in December 2008, 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. Moreover, her evidence of discriminatory workload reduction shows that from at least January 2009 through August 2010, Jackson diverted cases away from her based on her inability to type. See Nickens Aff. ¶ 6, Pl.'s Ex. 58; Martin Aff. ¶ 90, Pl.'s Ex. 74. This evidence could support an inference that Martin was not selected for the Relief Supervisory Investigator position in June 2009 " because of [her] disability." Swanks, 179 F.3d at 934.

c. Age Discrimination under the ADEA

An ADEA plaintiff must establish as part of her prima facie case that she was " disadvantaged in favor of a younger person." Teneyck, 365 F.3d at 1155. The D.C. Circuit has held that a plaintiff's replacement by an individual seven years younger, without other evidence that the plaintiff lost out " because of her age," is insufficient to make out a prima facie case at summary judgment. Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758, 767, 354 U.S.App.D.C. 36 (D.C. Cir. 2002); accord Grosjean v. First Energy Corp., 349 F.3d 332, 338 (6th Cir. 2003).

Here, Martin has not established a prima facie case of age discrimination as to her loss of the Relief Supervisory Investigator position in June 2009. Her evidence establishes that in June 2009, Jackson chose Stewart to serve as Relief Supervisory Investigator. See Jackson email of June 11, 2009, Pl.'s Ex. 49. Stewart was only five or six years her junior: In November 2009, he was thirty-nine years old, see DCOHR letter 3, Defs.' Ex. E, while Martin was forty-five, see Defs.' Statement of Facts ¶ 2; Am. Compl. ¶ 2. If a seven-year age differential, standing alone, is insufficient to support a prima facie case, Martin's evidence must also fall short. See Dunaway, 310 F.3d at 767. Martin has proffered no other evidence demonstrating that she was disfavored " because of her age." Id. To the contrary, Martin's evidence suggests that " older" employees were preferred. Martin Aff. ¶ 46, Pl.'s Ex. 74 (" Chief Jackson added [in a September 2009 meeting] that [certain new hires] were older males, so that they could balance out the office." (emphasis added)).[38]

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Because Martin's evidence does not show that Stewart was " significantly" younger than Martin, and because she has not otherwise suggested that she was not selected to be Relief Supervisory Investigator " because of" her age, her rejection cannot support a prima facie case of age discrimination under the ADEA. See O'Connor, 517 U.S. at 312-13.[39]

* * *

The Court grants the motion for summary judgment on Count Ten as to Martin's claim that she was denied the Relief Supervisory Investigator opportunity on the basis of her age. The Court denies the motion for summary judgment on Counts One and Five as to Martin's claims that this denial was based on her gender and disability, respectively.

5. Denial of Other Volunteer Opportunities

Martin alleges that ABRA denied her various other volunteer opportunities on the basis of her gender, disability, and age. See Am. Compl. ¶ ¶ 27-30, 39-47, 119-23, 139-45, 197-200. Specifically, Martin claims that she was not allowed to serve as Inaugural Liaison for the 2009 Presidential Inauguration on the basis of her gender, as Training Coordinator and Special Events Coordinator on the basis of her age, and as Fleet Coordinator on the basis of both age and gender. See id. ¶ ¶ 27-30. The complaint further alleges that these denials of " volunteer opportunities" discriminated against her on the basis of her disability. See id. ¶ 141.[40] Martin also alleges that she was removed from ABRA's Inaugural Committee for the 2009 Presidential Inauguration on the basis of her gender, age, and disability. See id. ¶ ¶ 39-47, 119-23, 139-45, 197-200.

The District contends that Martin has not made out a prima facie case, on the basis that the denials of these volunteer opportunities cannot constitute an " adverse employment action." See Czekalski, 475 F.3d at 364 (Title VII); Swanks, 179 F.3d at 934 (ADA); Baloch, 550 F.3d at 1196 (ADEA). In support, the District explains that the " volunteer activities did not result in extra pay or other tangible benefits." Mem. Supp. Mot. Dismiss & Summ. J. 11.[41]

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Here, the Court concludes that Martin has not introduced evidence that the denials of these other volunteer positions constitute adverse employment actions under Title VII, the ADA, or the ADEA. To be sure, the District's evidence corroborates Martin's contention that these opportunities provided managerial and leadership training. See Jackson Aff. ¶ 10, Defs.' Ex. I (explaining that Investigators could " gain experience with managing a program and developing leadership skills" ).[42] But more is required: Martin's evidence must allow a jury to make a finding of " objectively tangible harm." Douglas, 559 F.3d at 552. In the context of denied training, such evidence must show that she suffered a " material change in [her] employment conditions, status or benefits," Casey, 878 F.Supp.2d at 184, or " a failure to promote or a loss of career advancement opportunities," Trachtenberg, 937 F.Supp.2d at 468.[43]

In contrast to Martin's evidence of the importance of the Relief Supervisory Investigator position, her evidence regarding the other volunteer opportunities fails to suggest any correlation to career advancement. The fact that Price was the only future Supervisory Investigator to hold the position of Inaugural Liaison demonstrates that this experience was not required or particularly helpful for promotion. See Jackson email of Sept. 11, 2008, Pl.'s Ex. 55 (selection of Shoemaker and Price as Inaugural Liaisons). Similarly, none of the three promoted Investigators--Price, Matthews, or Stewart--was selected as Training, Special Events, or Fleet Coordinator. See Pl.'s Am. Statement of Facts ¶ 53 (selection of Mitchell, Butler, and Corrales). Lastly, although Price and Matthews served on the Inaugural Committee, Stewart did not, and several other Committee members were not promoted. See Jackson email of June 21, 2008, Pl.'s Ex. 54.[44] The attenuated relationship between Martin's non-selection for these volunteer positions and her alleged harm of stifled career advancement evokes Douglas, in which an agency's failure to nominate the plaintiff for an award ultimately conferred by the President was not an adverse employment action given the " inherent uncertainty" of a competitive selection process involving " multiple rounds of independent evaluation." Douglas,

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559 F.3d at 553.[45] Because a jury could not find " objectively tangible harm" on this record, Martin has failed to raise a genuine dispute of material fact. Douglas, 559 F.3d at 552.

Accordingly, the Court grants the motion for summary judgment on Counts One, Five, and Ten, as to the denial of the other volunteer opportunities.[46]

6. Denial of Overtime Pay

Martin alleges that around July 2009, she was not paid for an instance of overtime work on the basis of her gender. See Am. Compl. ¶ ¶ 36-37, 119-23.[47] In response, the District asserts a nondiscriminatory reason for the denial: Martin failed to obtain written pre-approval for overtime work, in violation of ABRA procedures. See Mem. Supp. Mot. Dismiss & Summ. J. 11-12. Martin contends that the District's reason is pretextual. See Brady, 520 F.3d at 494. She first submits that Relief Supervisory Investigator Matthews had previously approved her overtime work. Alternatively, she claims that Matthews's reason for the denial of overtime pay--that too many people worked the same overtime shift--is inconsistent with the reason given by the District in its motion. Am. Pl.'s Mem. Supp. Pl.'s Resp. Opp'n 14.

The Court concludes that Martin has not established a genuine dispute as to whether the District's reason was pretextual. First, Martin cites no record evidence supporting her assertion that her

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overtime detail " was approved by [Acting Supervisory Investigator] Matthews" in advance. Pl.'s Statement of Facts ¶ 56.[48] The Court also finds no inconsistency between Matthews's statements and the District's assertion that Martin never obtained formal approval for the overtime. See Geleta v. Gray, 645 F.3d 408, 413, 396 U.S.App.D.C. 87 (D.C. Cir. 2011) ( " [S]hifting and inconsistent justifications are probative of pretext." (citation and internal quotation marks omitted)). According to Martin, Matthews, upon meeting other overtime workers during the overtime shift, stated that " he was not paying overtime for . . . five people" and that one worker had to leave. Martin Aff. ¶ 37, Pl.'s Ex. 74. Even when viewed in the light most favorable to Martin, Matthews's remarks cannot be stretched to mean that Martin was properly approved for the shift and would have received overtime pay but for there being too many people assigned to the shift. Such a statement would indeed suggest that the District's proffered reason was not the " actual reason." Cf. supra Part IV.B.3.a (District's invoking time-in-grade rule for rejecting Martin is inconsistent with interviewing and hiring other candidates also ineligible under time-in-grade rule). Rather, Matthews's statement suggests only that an improper number of people were present on the shift; his observation is fully consistent with the possibility that Martin failed to obtain approval for the shift, as the District asserts in its motion. Cf. Hairston v. Vance-Cooks, 773 F.3d 266, 273 (D.C. Cir. 2014) (" Providing more detailed information once litigation begins does not create a genuine issue of material fact." ).[49]

The Court grants the motion for summary judgment on Count One as to the denial of overtime pay.

C. Disparate Impact in Violation of Title VII (Count Two)

In Count Two, Martin alleges that ABRA's employment practices disparately impacted female employees as to promotion, training, volunteer opportunities, overtime pay, work assignments, and hiring. See Am. Compl. ¶ ¶ 124-26.

" In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate [Title VII] without proof that the employer adopted those practices with a discriminatory intent." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (emphasis omitted). Plaintiffs seeking relief under this " disparate impact" theory must " offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Id. at 994. That is, showing mere " imbalance" is insufficient; a

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plaintiff must demonstrate a causal link between the challenged employment practice and the resulting disparate impact. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (emphasis omitted); accord Garcia v. Johanns, 444 F.3d 625, 635, 370 U.S.App.D.C. 280 (D.C. Cir. 2006) (applying Title VII disparate-impact analysis to Equal Credit Opportunity Act claim).

The District submits that Martin has failed to introduce statistical evidence demonstrating causation, and the Court's review of the record confirms this to be so. See Mem. Supp. Mot. Dismiss & Summ. J. 19. The amended complaint alleges that the gender composition of ABRA Enforcement Division staff and new hires was skewed toward males. See Am. Compl. ¶ ¶ 63-66. However, such allegations are insufficient--both because gender " imbalance" alone cannot establish disparate impact liability, Wards Cove Packing, 490 U.S. at 657, and because mere allegations without evidence cannot enable Martin to meet her summary judgment burden, see Celotex, 477 U.S. at 324 (explaining that nonmovant must " go beyond the pleadings" ).

Accordingly, the Court grants summary judgment to the District on Count Two.[50]

D. Retaliation in Violation of Title VII and the D.C. Human Rights Act (Counts Three and Four)

In Count Three, Martin alleges that the District retaliated against her for filing her discrimination complaint and for participating in the investigation of the EEO complaint, in violation of Title VII. See Am. Compl. ¶ ¶ 127-32. In Count Four, Martin alleges that all Defendants retaliated against her for the same activities, in violation of the DCHRA. See Am. Compl. ¶ ¶ 133-38. The retaliation allegedly suffered by Martin includes the denial of promotion, training, volunteer opportunities, overtime pay, reasonable accommodation, and work assignments; unduly burdensome work assignments; [51] and verbal abuse and embarrassment. See id. ¶ ¶ 130, 137.[52]

Under Title VII, it is unlawful for an employer to discriminate against an

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employee " because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, . . . or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). " To prove retaliation [under Title VII], the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim." Baloch, 550 F.3d at 1198. Under Title VII, the elements of a prima facie case of retaliation are: " first, that [the plaintiff] engaged in protected activity; second, that she was subjected to adverse action by the employer; and third, that there existed a causal link between the adverse action and the protected activity." Broderick v. Donaldson, 437 F.3d 1226, 1231-32, 369 U.S.App.D.C. 374 (D.C. Cir. 2006) (citation omitted). The materially adverse action must be such that it would " dissuad[e] a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citation omitted). Where a plaintiff allegedly suffers a materially adverse action, the defendant can prevail by offering " legitimate, nondiscriminatory reasons" for its action. Baloch, 550 F.3d at 1200 (citing Brady, 520 F.3d at 494).

The DCHRA provides that " [i]t shall be an unlawful discriminatory practice to coerce, threaten, retaliate against, or interfere with any person in the exercise or enjoyment of, or on account of having exercised or enjoyed . . . any right granted or protected" under the Act. D.C. Code § 2-1402.61(a). The elements of a prima facie case for a DCHRA retaliation claim are the same as those under Title VII. See Arthur Young & Co. v. Sutherland, 631 A.2d 354, 367-68 (D.C. 1993).[53]

Applying the above principles, the Court concludes that Martin has failed to introduce evidence that any act of alleged retaliation had a causal relationship to her protected complaints. The amended complaint alleges that Martin was saddled with the extra work of training Field Training Investigators (" FTIs" ) " on 72 separate occasions--in addition to [her] regular duties," and her evidence shows that she completed this work sometime between November 2009 and August 2010. Am. Compl. ¶ 104; see also Martin Aff. ¶ 51, Pl.'s Ex. 74 (explaining that Martin learned of her non-selection as FTI in November 2009); id. ¶ 90 (explaining that Martin had completed FTI training by August 2010). Martin further alleges that ABRA management fabricated complaints against her in June 2010 and August 2010 that impacted performance reviews, denied her overtime pay in June 2010, and reduced

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her normal caseload from the time of her carpal tunnel syndrome diagnosis through at least August 2010. See Am. Compl. ¶ 72; Martin Aff. ¶ ¶ 79-80, 90-91, Pl.'s Ex. 74. Lastly, Martin alleges that she suffered " constant verbal abuse, insults, personal attacks, and public embarrassment" because of her discrimination complaints. See Am. Compl. ¶ ¶ 130.[54] The record, however, is barren as to any evidence that her discrimination complaints caused the alleged retaliation. Broderick, 437 F.3d at 1231-32.

The remaining alleged materially adverse actions--loss of promotions, management training, volunteer opportunities, reasonable accommodation, and work assignments--all took place before Martin filed her discrimination claim in February 2010. See generally Martin Aff., Pl's Ex. 74. Indeed, those actions were the basis for her discrimination claim. See Charges, Pl.'s Ex. 68.[55] Accordingly, Martin's evidence fails to create a dispute of fact about any causal connection between her protected activity and the alleged retaliation. See Hayslett v. Perry, 332 F.Supp.2d 93, 98 (D.D.C. 2004) (holding that plaintiff cannot " establish a prima facie case of retaliation [as to] several of the alleged retaliatory acts [that] predate the relevant protected EEO activity" ).

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The Court therefore grants summary judgment to the District on Count Three and to all Defendants on Count Four.[56]

E. Failure to Provide a Reasonable Accommodation in Violation of the ADA and Rehabilitation Act (Counts Five and Six)

In Counts Five and Six, Martin alleges that after she was diagnosed with carpal tunnel syndrome, the District failed to provide her with a reasonable accommodation, in violation of the ADA and the Rehabilitation Act, respectively. See Am. Compl. ¶ ¶ 144-52.[57]

The ADA provides that no covered entity shall " discriminate against a qualified individual on the basis of disability . . . ." 42 U.S.C. § 12112(a). Such discrimination includes the failure to provide " reasonable accommodations" to a " qualified individual with a disability," unless doing so would constitute an undue hardship. Id. § 12112(b)(5)(A). In order to make out a prima facie case for a failure-to-accommodate claim under the ADA, a plaintiff must show: (1) that she was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of her disability; (3) that with or without reasonable accommodation she could perform the essential functions of the position; and (4) that the employer refused to make such accommodations. See Gordon v. District of Columbia, 480 F.Supp.2d 112, 115 (D.D.C. 2007).[58] The

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ADA's standards likewise govern failure-to-accommodate claims under the Rehabilitation Act. See 29 U.S.C. § 791(f); see also Solomon v. Vilsack, 763 F.3d 1, 5, 412 U.S.App.D.C. 127 (D.C. Cir. 2014).

In its motion, the District contends that it is entitled to summary judgment on the failure-to-accommodate claims because the fact that Martin received a reasonable accommodation is undisputed. Mem. Supp. Mot. Dismiss & Summ. J. 18.[59] The Court disagrees. An accommodation is reasonable if it allows the employee " to perform the essential functions of the job." Norden v. Samper, 503 F.Supp.2d 130, 145 (D.D.C. 2007); see also 29 C.F.R. § 1630.2(o)(1)(ii). While it is undisputed here that the District provided Martin with a cassette recorder, the District fails to explain how the recorder enabled Martin to perform the " essential functions" of her position. Norden, 503 F.Supp.2d at 145.[60] Record evidence could support findings that the recorder did not facilitate email communications or typing, both of which were substantial routine tasks for Investigators, and that Martin did not receive the voice recognition software until December 2011. See Martin correspondence, Pl.'s Ex. 64; Martin letter of Jan. 2, 2012, Pl.'s Ex. 62; Investigator job description, id.; Martin Dep. 33:17-18, Defs.' Ex. Q. The Court concludes that a dispute of fact exists as to whether ABRA's chosen accommodation was " reasonable." See Martin correspondence, Pl.'s Ex. 64.[61]

The Court therefore denies the motion for summary judgment as to Martin's failure-to-accommodate claims in Counts Five and Six.

F. Negligent Hiring and Retention (Count Seven)

Martin alleges in Count Seven that the District and Moosally selected and retained employees who created an environment that promoted discrimination and retaliation. Am. Compl. ¶ ¶ 153-66.[62] In

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dismissing Count Seven as to Brodsky, this Court explained that a negligent supervision claim " may be predicated only on common law causes of action or duties imposed by the common law." Martin, 968 F.Supp.2d at 166 (quoting Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 576 (D.C. 2007) (per curiam) (emphasis added)). Because Martin's negligence claim is predicated on " various employment causes of action that are creatures of statute, not common law," this Court dismissed Count Seven as to Brodsky. Id. For the same reason, this Court now dismisses Count Seven as to the District and Moosally.[63]

G. Retaliation in Violation of the D.C. Whistleblower's Protection Act (Count Eight)

In Count Eight, Martin alleges that Defendants retaliated against her because of her participation in the DCOIG investigation, in violation of the DCWPA. See Am. Compl. ¶ ¶ 167-87. The alleged retaliation includes threatened and actual disciplinary action, reprimand, negative personnel decisions, involuntary transfers, denial of promotion and training, reassignment, and ostracizing. See Am. Compl. ¶ 183; D.C. Code § 1-615.52(a)(5) (defining " prohibited personnel action" ).

In their motion, Defendants argue that Martin's DCWPA claim is untimely and that, alternatively, it fails on the merits because Martin's evidence cannot establish a causal relationship between Martin's participation in the DCOIG evaluation and any alleged retaliation. See Mem. Supp. Mot. Dismiss & Summ. J. 13-15. The Court need not reach the merits because it agrees with Defendants that Martin's DCWPA claim is untimely.

The DCWPA provides that claims under the statute " shall be filed within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first." D.C. Code § 1-615.54(a)(2). As Martin concedes, " [c]ourts presume that an employee becomes aware of the [DCWPA] violation at the time that the adverse employment act occurs." Clayton v. District of Columbia, 931 F.Supp.2d 192, 203 (D.D.C. 2013); see also Am. Pl.'s Mem. Supp. Pl.'s Resp. Opp'n 24 (citing Sharma v. District of Columbia, 791 F.Supp.2d 207, 214 (D.D.C. 2011)). She also does not deny that all of the alleged retaliatory actions occurred more than one year before June 9, 2011--the date that she initially filed her DCWPA claim. See Mem. Supp. Mot. Dismiss & Summ. J. 14; Compl. ¶ ¶ 181-95 (DCWPA claim in original complaint). Under the presumption that she became aware of the DCWPA violations when the alleged retaliation occurred, her claim would be untimely.

Attempting to avoid this presumption, Martin contends in her opposition that although she was aware of the adverse actions when they occurred, she did not realize that they were retaliatory, and thus actionable under the DCWPA, until she filed her complaint on June 9, 2011. See Am. Pl.'s Mem. Supp. Pl.'s Resp. Opp'n 24.

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In support, she cites further analysis by the Court in Clayton v. District of Columbia. There, the Court recognized that " an employee may argue that she did not learn that the action was retaliatory until some later date, and [that] thus, the one-year statutory period began later." Clayton, 931 F.Supp.2d at 203. The Court then assumed the truth of the plaintiff's allegation that she did not discover that a reclassification was retaliatory until a later date--when her termination became effective--and denied the District's motion to dismiss. Id. at 204.

Martin's reliance on Clayton is misplaced. Because Clayton was decided on a motion to dismiss, the Court there had to assume the truth of the plaintiff's allegation that she did not learn that an action was retaliatory until a later time. See id. at 197 (discussing motion to dismiss); see also Iqbal, 556 U.S. at 678. By contrast, here, the parties have proceeded through discovery. At summary judgment, Martin cannot prevail by resting on an unfounded assertion in her opposition that she did not learn of the retaliatory nature of the actions until the day she filed her complaint in this Court. Rather, she must point to " sufficient evidence supporting the claimed factual dispute . . . ." Anderson, 477 U.S. at 249 (citation omitted); see also Celotex, 477 U.S. at 324 (explaining that nonmovant must " go beyond the pleadings" ). Because she has not done so, the Court presumes that she learned of the violations when the allegedly retaliatory acts occurred. Clayton, 931 F.Supp.2d at 203. And because she learned of the violations over a year before she brought this action, her claim is untimely.

Accordingly, the Court dismisses Count Eight because Martin filed her claim after the applicable one-year limitations period had expired. See D.C. Code § 1-615.54(a)(2).

H. Retaliation for Exercise of First Amendment Rights, in Violation of 42 U.S.C. § 1983 (Count Nine)

Martin alleges in Count Nine that Defendants retaliated against her for various activities protected by the First Amendment, in violation of 42 U.S.C. § 1983. See Am. Compl. ¶ ¶ 188-96. Although the amended complaint alleges numerous acts of both protected speech and retaliation, the Court concludes that Martin's claim cannot proceed because she has failed to introduce evidence that any of her speech is protected by the First Amendment.[64]

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In the D.C. Circuit, courts apply a four-prong test in evaluating a government employee's First Amendment retaliation claim:

First, the public employee must have spoken as a citizen on a matter of public concern. Second, the court must consider whether the governmental interest in promoting the efficiency of the public services it performs through its employees outweighs the employee's interest, as a citizen, in commenting upon matters of public concern. Third, the employee must show that [her] speech was a substantial or motivating factor in prompting the retaliatory or punitive act. Finally, the employee must refute the government employer's showing, if made, that it would have reached the same decision in the absence of the protected speech.

Bowie v. Maddox, 642 F.3d 1122, 1133, 395 U.S.App.D.C. 301 (D.C. Cir. 2011) (quoting Wilburn v. Robinson, 480 F.3d 1140, 1149, 375 U.S.App.D.C. 257 (D.C. Cir. 2007) (citations, alterations, and internal quotation marks omitted)). " The first two factors . . . are questions of law for the court to resolve, while the latter are questions of fact ordinarily for the jury." Wilburn, 480 F.3d at 1149 (citation omitted). The first factor, in turn, consists of two distinct inquiries that inform the Court's analysis below--whether the employee spoke as a citizen, rather than as a government employee,[65] and whether the speech addressed a " matter of public concern." See id.

1. DCOIG Interview

The allegedly protected speech upon which Martin's First Amendment claim primarily relies is her report to the DCOIG Special Agent that Delaney had directed that unfavorable investigative reports be altered to protect certain licensees. See DCOIG Memorandum of Interview, Pl.'s Ex. 20; Am. Pl.'s Mem. Supp. Pl.'s Resp. Opp'n 27. For the reasons given below, Martin has failed to offer evidence that could support a finding that she spoke " as a citizen" during her DCOIG

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interview. Bowie, 642 F.3d at 1133.[66]

In Winder v. Erste, 566 F.3d 209, 386 U.S.App.D.C. 26 (D.C. Cir. 2009), the D.C. Circuit considered whether a school district employee spoke " as a citizen" when he criticized his supervisors in several forums. Winder's primary job duty was to facilitate the school district's compliance with court orders mandating transportation services for special education students. Over time, Winder came to believe that his supervisors were frustrating this compliance and reported his supervisors' conduct to the court-appointed Special Master, to the D.C. Council, and to the DCOIG. Id. at 211-12. On appeal, the D.C. Circuit reasoned that " Winder was hired to help [the district] comply with the . . . court orders," and that " in each communication at issue . . . he acted in furtherance of that duty by exposing the efforts of [district] officials to block compliance." Id. at 214-15. Reviewing this Circuit's prior applications of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which rendered unprotected public employees' speech made " pursuant to their official duties," id. at 421, the Winder court held that Winder's testimony was not protected because it " report[ed] conduct that interfere[d] with his job responsibilities." Winder, 566 F.3d at 215. In reaching this conclusion, the court rejected Winder's submissions that he ventured " outside his chain of command," and that " his supervisors . . . did not want him to speak candidly to officials who were reviewing . . . compliance with the [court] orders." Id. at 215. At the same time, the court disapproved of the sweeping proposition that any speech that merely " concerns" an employee's job duties is unprotected. Id. at 216 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).

Applying Winder, this Court concludes that Martin has failed to introduce evidence that she spoke " as a citizen" during the June 2008 DCOIG interview.[67]

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Like Winder, Martin was speaking " pursuant to" her job duties by " report[ing] conduct that that interferes with [her] job responsibilities . . . ." Id. at 215. Investigators are tasked with inspecting licensees and reporting potential violations of the District's alcohol regulations. See Investigator job description, Pl.'s Ex. 62. In alerting the DCOIG to her belief that Delaney was altering findings of Investigators in favor of certain licensees, Martin " acted in furtherance of [her] duty by exposing the efforts of [ABRA] officials" to frustrate her investigations and the enforcement of the alcohol regulations. Winder, 566 F.3d at 214-15. Although Martin's evidence shows that her allegations took place " outside [her] chain of command," and that her superiors " did not want [her] to speak candidly to officials" auditing ABRA, Winder deemed the same circumstances unavailing. Id. at 215.[68]

As Martin correctly notes, however, Winder 's approach comes into potential tension with the recent Supreme Court decision of Lane v. Franks, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). The D.C. Circuit noted this tension in its dicta in Mpoy v. Rhee, 758 F.3d 285, 411 U.S.App.D.C. 94 (D.C. Cir. 2014):

[I]t is possible that Winder 's broad language, interpreting Garcetti as leaving an employee unprotected when he reports conduct that " interferes with his job responsibilities," 566 F.3d at 215, could be in tension with Lane 's holding that an employee's speech is unprotected only when it is within the scope of the employee's " ordinary job responsibilities," 134 S.Ct. at 2379-80, or " ordinary job duties," id. at 2378. In particular, the use of the adjective " ordinary" --which the court repeated nine times--could signal a narrowing of the realm of employee speech left unprotected by Garcetti. Neither Garcetti nor any other previous Supreme Court case had added " ordinary" as a qualifier.

Mpoy, 758 F.3d at 295 (citation omitted). After noting these doubts about Winder, the Mpoy court declined to resolve the tension and decided the case on qualified immunity grounds. See id. at 289; see supra note 64.

Martin contends that under Lane, as interpreted in Mpoy, she spoke outside the bounds of her " ordinary" job responsibilities " by voluntarily disclosing protected information to the Board and to the OIG." Am. Pl.'s Mem. Supp. Pl.'s Resp. Opp'n 27. She submits in particular that her DCOIG interview could not have been part of her ordinary duties given that it took place " in the course of a special, ad hoc investigation." Id.

In Lane, the Supreme Court considered whether the First Amendment protected a public employee's testimony in a criminal trial, where such testimony was not a routine part of the employee's job function. An Alabama community college hired Lane to oversee a statewide program for underprivileged youth, giving him authority over the program's daily operations, personnel

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matters, and finances. Lane, 134 S.Ct. at 2375. In this capacity, he conducted an audit of the program's finances and discovered that an Alabama State Representative on the program's payroll had not been reporting to her assigned office. Although college officials told him that firing the State Representative could lead to " negative repercussions" for both him and the college, he proceeded to terminate her anyway, prompting a subsequent federal investigation into the Representative leading to criminal charges for mail fraud and theft concerning a program receiving federal funds. Id. At the State Representative's trial, Lane testified under subpoena about the events leading to her termination, and the jury returned guilty verdicts on nearly all counts. Id. Months later, Lane was terminated. Id. at 2376. He then sued his supervisor under § 1983, alleging that he was fired in retaliation for his trial testimony, in violation of the First Amendment. Id.

The Lane Court reaffirmed Garcetti 's functional inquiry into whether a public employee's speech occurred " pursuant to [his] official duties." Lane, 134 S.Ct. at 2378; see also Winder, 566 F.3d at 215. In doing so, however, the Court opted for different language in describing the Garcetti Court's " [a]ppl[ication of] that rule" : " [T]he [ Garcetti ] Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech." Lane, 134 S.Ct. at 2378 (emphasis added). The Lane Court ultimately held that " truthful sworn testimony, compelled by subpoena, outside the scope of [the employee's] ordinary job responsibilities" is protected citizen speech. Id.

The Mpoy court explained that Lane 's " use of the adjective 'ordinary' . . . could signal a narrowing" of the space of unprotected speech under Garcetti. Mpoy, 758 F.3d at 295. That is, Lane could be read to mandate a more descriptive, rather than normative, inquiry: The speech act must " itself" constitute part of the speaker's " ordinary" job duties, regardless of whether the speech furthers those duties. Compare Winder, 566 F.3d at 214-15 (holding that speech " in furtherance of" or " pursuant to" job responsibilities is unprotected), with Lane, 134 S.Ct. at 2379 (" The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties . . . ." (emphasis added)).

However, the Mpoy court noted in the paragraph immediately preceding its discussion of the Lane-Winder tension that because both the Lane and Garcetti Courts " had no occasion to consider how the scope of [ordinary job] responsibilities should be determined in other circumstances," Lane " does not directly or necessarily contradict Winder 's application of Garcetti." Mpoy, 758 F.3d at 294. Indeed, the Lane and Garcetti Courts expressly reserved the question of how to define a speaker's job duties. In Garcetti, because the parties agreed that the speech at issue was " pursuant to" the speaker's job duties, the Court had " no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate," and emphasized only that the " proper inquiry is a practical one" that cannot rely solely on tasks listed in a job description. Garcetti, 547 U.S. at 424. In Lane, too, the scope of employment duties was not at issue because the parties agreed that " Lane's ordinary job responsibilities did not include testifying in court proceedings." Lane, 134 S.Ct. at 2378 n.4.

This Court thus agrees that Winder addresses a question not yet resolved by the

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Supreme Court: What characterizes speech that is " itself ordinarily within the scope of an employee's duties" and thus unprotected under Lane ? Id. at 2379 (emphasis added). The answer preferred by Martin is that the activity giving rise to unprotected speech must occur with some degree of frequency in the course of " ordinary" duties. Cf. Lane, 134 S.Ct. at 2384 (explaining that Lane did not implicate public employees for whom " testifying is a routine and critical part of their employment duties," such as " police officers, crime scene technicians, and laboratory analysts" ) (Thomas, J., concurring).[69] But under Winder, any speech that furthers those " ordinary" duties by attempting to eliminate interference would fall within the " scope" of those duties and thus also be unprotected. 566 F.3d at 214-15.[70]

Even if Martin is " correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept [her] invitation to depart from this Circuit's binding precedent." Hartley v. Wilfert, 918 F.Supp.2d 45, 52 (D.D.C. 2013). Winder and the principles of stare decisis must control: It is a " long-standing rule of the D.C. Circuit" that prior panel decisions are binding unless withdrawn by the panel or overruled by the court sitting en banc. Cobell v. Salazar, 816 F.Supp.2d 10, 15 (D.D.C. 2011) (citing Brewster v. C.I.R., 607 F.2d 1369, 1373, 197 U.S.App.D.C. 184 (D.C. Cir. 1979) (per curiam)). This Court's duty to apply Winder is all the more apparent where the D.C.

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Circuit has expressly concluded that Lane " does not directly or necessarily contradict Winder 's application of Garcetti." Mpoy, 758 F.3d at 294.

The Court addresses one final wrinkle: Although Martin's discussion of Mpoy is limited to its dicta concerning Lane, certain other aspects of Mpoy 's reasoning could also be read to limit the domain of unprotected speech. In that case, Mpoy, a special education teacher, sent an email to the school district chancellor complaining about a host of job-related frustrations. Mpoy, 758 F.3d at 291-92. On appeal, Mpoy contended that one sentence in his email was protected citizen speech--the allegation that his school's principal " misrepresented students' performance and results on" certain tests. Id. at 292. The court disagreed. In determining that even this allegation was made " pursuant to his official responsibilities" under Winder, the court examined the speech's " context" : The vast majority of the email concerned problems specific to Mpoy's classroom, and Mpoy identified himself by his job title, suggesting that he viewed the email as an " internal channel." Id. at 292-94.

Notably for purposes of the instant case, the Mpoy court also emphasized that " [t]he complaint makes clear that Mpoy was not complaining that the principal had changed the [scores] of any other teachers' students," but only those of his own students. Id. at 293. Here, Martin alleged during her DCOIG interview that Delaney sought to influence not only Martin's own cases and reports, but also those of the " Investigators" as a whole, such that an " unwritten rule" colored all ABRA reports on certain licensees. DCOIG Memorandum of Interview, Pl.'s Ex. 20. Thus, unlike Mpoy's email, Martin's speech arguably implicated more than her own job duties.

This Court nonetheless concludes that Mpoy does not confer First Amendment protection on Martin's speech. Preliminarily, the Court doubts that, under Mpoy, Martin's duties can be reduced to the management of her assigned cases alone, given that Investigators have a higher obligation to enforce the law, and that Martin's own evidence shows that collaboration between Investigators was not uncommon. See Investigator job description, Pl.'s Ex. 62 (explaining that the Investigator " [p]lans and conducts periodic investigations and inspections . . . in order to effectively administer and enforce the District of Columbia beverage alcohol laws. . . ." (emphasis added)); Nickens Aff. ¶ ¶ 2-3, Pl.'s Ex. 58 (explaining that Nickens worked " together" with and was trained by Martin).[71] Even assuming (without deciding) that Mpoy does limit Martin's responsibilities in such a manner, the Court still concludes that, on balance, Mpoy 's other " contextual" factors foreclose a finding that Martin spoke as a citizen: First, like Mpoy, she spoke in her official capacity in what she perceived to be an internal forum for registering complaints, and, second, most of her speech targeted interference with her own cases and reports. See Mpoy, 758 F.3d at 292-94.[72] Crucially, Mpoy did not

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create an exception to Winder 's rule by holding that First Amendment protection is triggered whenever a public employee reports interference with her duties, if that interference also incidentally obstructs the duties of others.[73] Here, Martin alleged that Delaney's favoritism affected all " Investigators" --of whom, of course, she is one. DCOIG Memorandum of Interview, Pl.'s Ex. 20. Because Winder remains the law in this Circuit, see Cobell, 816 F.Supp.2d at 15, this Court concludes on this record that Martin " report[ed] conduct that interfere[d] with [her] job responsibilities," even if that conduct also happened to interfere with the duties of other Investigators, Winder, 566 F.3d at 215.

Accordingly, under Winder, the allegation made by Martin during her DCOIG interview was employee speech unprotected by the First Amendment. Bowie, 642 F.3d at 1133.[74]

2. Other allegedly protected speech

Besides the DCOIG interview, the amended complaint mentions other speech activities--" opposing perceived discrimination

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in employment," " obeying a subpoena," " appearing as a witness to offer testimony," and " reporting to police and cooperating with [p]olice in a criminal matter involving [I]nvestigator misconduct." Am. Compl. ¶ 189.

The Court concludes that no other instance of allegedly protected speech saves Martin's First Amendment retaliation claim. Martin's discrimination complaints cannot support a First Amendment retaliation claim because there is no evidence that they extended beyond an " individual personnel dispute" to reach any " matter of public concern." Tao v. Freeh, 27 F.3d 635, 639, 307 U.S.App.D.C. 185 (D.C. Cir. 1994) (holding that complaint that agency discriminated against all Chinese-Americans, directed to agency director, and styled as a " first voice of protest," implicated matters of public concern and was " broader than an individual employee personnel grievance," id. at 640); see also Charges, Pl.'s Ex. 68 (alleging that Martin had suffered gender, disability, and age discrimination and retaliation but not alleging systemic problems). The Court declines to consider the remaining speech activities--obeying a subpoena, testifying as a witness, and cooperating with police--because these allegations are unsupported by the record and absent from Martin's opposition. See Celotex, 477 U.S. at 324 (explaining that party opposing summary judgment must " go beyond the pleadings" ).

* * *

Martin's First Amendment retaliation claim under § 1983 cannot proceed in the absence of evidence that could support a finding that any of her speech was citizen speech protected by the First Amendment. The Court thus grants summary judgment to Defendants on Count Nine.

I. Conspiracy and Failure to Prevent Conspiracy (Counts Eleven and Twelve)

Lastly, Martin alleges in Count Eleven that Defendants conspired to deprive her of the equal protection of the laws, in violation of 42 U.S.C. § 1985, and, in Count Twelve, that they failed or neglected to prevent such a conspiracy, in violation of 42 U.S.C. § 1986. See Am. Compl. ¶ ¶ 201-208. In dismissing Counts Eleven and Twelve as to Brodsky, the Court concluded that the intracorporate conspiracy doctrine foreclosed Martin's claims that Brodsky conspired with the other individual defendants, who were all " agents of the D.C. government during the alleged events giving rise to this litigation." Martin, 968 F.Supp.2d at 169; see also Tabb v. District of Columbia, 477 F.Supp.2d 185, 190 (D.D.C. 2007) (" [A] corporation cannot conspire with its employees, and its employees, when acting within the scope of their employment, cannot conspire among themselves." (citation omitted)). The parties do not dispute that Moosally, Jackson, Stewart, and Delaney--like Brodsky--are all agents of the District during the period at issue. See generally Am. Compl. The Court concludes that the intracorporate conspiracy doctrine likewise mandates dismissal of Counts Eleven and Twelve as to Defendants.[75]

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V. CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss and for summary judgment (ECF No. 118) is GRANTED in part and DENIED in part, and Martin's motion for sanctions and to strike exhibits (ECF No. 131) is DENIED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

ORDER

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

For the reasons stated in the Court's Memorandum Opinion separately and contemporaneously issued, Defendants' motion to dismiss and for summary judgment (ECF No. 118) is GRANTED IN PART and DENIED IN PART, and Martin's motion for sanctions and to strike exhibits (ECF No. 131) is DENIED. It is hereby ORDERED that:

1. As to Count One: The District is DENIED summary judgment as to the claims that it reduced Martin's workload, denied the promotion to Supervisory Investigator, and denied the Relief Supervisory Investigator opportunity, on the basis of Martin's gender. JUDGMENT IS ENTERED in favor of the District as to the claim that it denied Martin other volunteer opportunities and overtime compensation, on basis of her gender.
2. As to Count Two: JUDGMENT IS ENTERED in favor of the District.
3. As to Count Three: JUDGMENT IS ENTERED in favor of the District.
4. As to Count Four: JUDGMENT IS ENTERED in favor of the District, Moosally, Jackson, Stewart, and Delaney.
5. As to Count Five: This Count is DISMISSED as to Moosally, Jackson, Stewart, and Delaney; JUDGMENT IS ENTERED in favor of the District as to the claims that it denied Martin the promotion to Supervisory Investigator and other volunteer opportunities on the basis of her disability; and the District is DENIED summary judgment as to the claims that it reduced Martin's workload and denied Martin the Relief Supervisory Investigator opportunity, on the basis of disability, and that it denied her a reasonable accommodation.
6. As to Count Six: The District is DENIED summary judgment.
7. As to Count Seven: This Count is DISMISSED as to the District and Moosally.
8. As to Count Eight: This Count is DISMISSED as to the District, Moosally, Jackson, Stewart, and Delaney.
9. As to Count Nine: JUDGMENT IS ENTERED in favor of the District, Moosally, Jackson, Stewart, and Delaney.
10. As to Count Ten: JUDGMENT IS ENTERED in favor of the District as to the claims that it denied Martin the promotion to Supervisory Investigator, the Relief Supervisory Investigator opportunity, and other volunteer opportunities, on the basis of her age.
11. As to Count Eleven: This Count is DISMISSED as to the District, Moosally, Jackson, Stewart, and Delaney.
12. As to Count Twelve: This Count is DISMISSED as to the District, Moosally, Jackson, Stewart, and Delaney.

It is FURTHER ORDERED that the parties shall appear for a status conference before the Court on February 6, 2015, at 10:00 AM in Courtroom 14.

SO ORDERED.


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