United States District Court, D. Columbia.
DISTRICT OF COLUMBIA, Defendant: Chad Alan Naso, LEAD
ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF
COLUMBIA, Public Interest Division, Equity Section,
Washington, DC; Chad Wayne Copeland, OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC; Robert
Joseph Rich, DC OFFICE OF THE ATTORNEY GENERAL, Public
Interest Division, Washington, DC.
A. HOWELL, United States District Judge.
are nineteen African-American current and former employees of
the District of Columbia Fire and Emergency Medical Services
Department (" DCFEMS" ). Along with twenty-five of
their colleagues, the current plaintiffs sought to initiate a
class action against DCFEMS on behalf of themselves and all
African-American firefighters and EMS employees subject to
discipline or denied promotion by DCFEMS on or after October
15, 2007. See Am. Compl., ECF No. 20. Following
extensive pre-certification discovery, the plaintiffs elected
not to move for class certification. Pls.' Status Report,
ECF No. 64. Thereafter, eighteen of the original plaintiffs
voluntarily withdrew their claims against the District,
leaving twenty-six plaintiffs pursuing claims against the
District individually in the Second Amended Complaint,
see Sec. Am. Compl. (" SAC" ), ECF No.
86-2, for which individual claims the Court permitted an
additional ten months of discovery, see Minute
Order, dated July 31, 2014. Pending before the Court are
twenty motions filed by the District of Columbia seeking
summary judgment on the remaining claims set out in the
plaintiffs' Second Amended Complaint. For the reasons set
out below, each of these motions for summary judgment is
this case was commenced as a putative class action, in its
present iteration, the plaintiffs' allegations separately
describe the individual experiences of nineteen current and
former African-African DCFEMS employees. Various plaintiffs
challenge several of the same DCFEMS programs or procedures,
but their allegations more obviously demonstrate the unique
circumstances giving rise to their distinct claims of
discrimination. They were employed in a variety of capacities
and served in separate components throughout DCFEMS. While
certain plaintiffs allege only that they were subjected to a
racially discriminatory disciplinary regime, others variously
allege that they were not promoted, were forced to obtain EMT
training and certification, or were subjected to harassment
and ridicule on account of their race. Finally, while at
least eight of these plaintiffs have separated--voluntarily
or otherwise--from DCFEMS, the remaining plaintiffs continue
to work for DCFEMS.
plaintiffs' written submissions--including the 47-page
Second Amended Complaint and an 86-page Omnibus Opposition to
the instant summary judgment motions--do little to explain
the degree to which their allegations are mutually supportive
or otherwise interrelated. As a result, the task of
organizing the plaintiffs' allegations into a more
comprehensible form in order to draw all inferences in their
favor on their respective claims of workplace discrimination
has posed a challenge. Even after indulging in ample
discovery throughout nearly two years, the plaintiffs each
have failed to demonstrate sufficient record evidence to
support their various claims to raise a genuine factual issue
requiring resolution at trial.
violations of 42 U.S.C. § § 1981 and 1983,
forty-four African-American current and former DCFEMS
employees filed this lawsuit to pursue a class action on
behalf of " all current and former African American
Firefighters and EMS employees at the D.C. Fire and EMS
Department who experienced a hostile work environment, were
subjected to unfair termination, to discipline unequal to
that of their similarly situated White colleagues, were
discriminatorily denied promotions that were awarded to their
White colleagues, or were otherwise subjected to
discrimination within the applicable statute of
limitations." Burton v. District of Columbia,
277 F.R.D. 224, 227 (D.D.C. 2011) (citing Am. Compl. ¶
16). The plaintiffs requested declaratory and injunctive
relief, including reinstatement of wrongfully disciplined
employees and expungement of discriminatory disciplinary
actions; retroactive promotion of all African-American
employees denied promotions based on the 2006, 2008, and 2010
DCFEMS promotional examinations; back pay and benefits;
compensatory damages for, inter alia, loss of
reputation and physical and emotional distress; and punitive
damages. Id. (citing Am. Compl. ¶ ¶
plaintiffs' motion for class certification was
provisionally denied, on December 23, 2011, since the Amended
Complaint failed to allege with sufficient detail the
District's discriminatory disciplinary process and use of
" a biased testing procedure to evaluate employees"
or that the District operated under a general policy of
discrimination, in order to satisfy the commonality
requirement of Federal Rule of Civil Procedure 23(a)(2).
Burton, 277 F.R.D. at 228-30 (citing Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541,
2553, 180 L.Ed.2d 374 (2011)). Nonetheless, because the
plaintiffs alleged a " potentially viable class
claim," the Court granted an initial sixty days of
pre-certification discovery. Id. at 230-31.
two years later, following numerous extensions of the
pre-certification discovery deadline, see Minute
Orders, dated February 10, 2012, March 26, 2012, April 18,
2012, May 25, 2012, July 13, 2012, September 17, 2012,
November 5, 2012, January 22, 2013, May 10, 2013, and October
25, 2013 (extending discovery deadline to June 25, 2014), the
plaintiffs notified the Court that they would no longer seek
class certification and would instead litigate the respective
claims of certain of the original forty-four plaintiffs.
See Pls.' Status Report, ECF No. 64. Thereafter,
on November 8, 2013, twenty-six of the original forty-four
plaintiffs jointly filed a Second Amended Complaint alleging
specific instances of discrimination experienced by the
remaining plaintiffs. See generally SAC.
Second Amended Complaint alleges three causes of action.
Count I, pursued only by three plaintiffs, Gerald Burton,
Joshua Fuller, and Tawanna Robinson, alleges the DCFEMS
subjected the plaintiffs to a hostile work environment, and
racially discriminatory discipline, and otherwise
intentionally discriminated against the plaintiffs, in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e, et seq. SAC ¶ ¶
397-414. Count II, pursued by all plaintiffs, alleges that
the DCFEMS subjected the plaintiffs to a hostile work
environment through discriminatory discipline and
non-promotion, in violation of 42 U.S.C. § 1981.
Id. ¶ ¶ 415-25. Count III, also pursued by
all plaintiffs, alleges discriminatory punishment and
promotion, as well as maintaining a hostile work environment,
in violation of 42 U.S.C. § 1983. Id. ¶
¶ 426-35. The plaintiffs seek declaratory and injunctive
relief, including that the District institute additional
anti-discrimination policies and training. Id.
¶ ¶ 438-49.
the extensive pre-certification discovery, the plaintiffs
requested additional discovery, on grounds that such
discovery was necessary to obtain information relevant to
each remaining plaintiff's circumstances. See
Pls.' Mot. Compel & Extend Discovery Deadline, ECF No.
123 (requesting, over objection by the District, an extension
of the discovery deadline to allow the plaintiffs to "
review the District's outstanding discovery and to
schedule further fact and Rule 30(b)(6) witnesses" ).
This final request was granted, and discovery then continued.
See Minute Order, dated July 31, 2014. Along the
way, the claims of seven of the remaining plaintiffs were
dismissed, either voluntarily or in response to a motion by
the District, see Minute Orders, dated April 30,
2014, May 13, 2014, June 2, 2014, June 12, 2014, March 11,
2015, April 2, 2015, and May 1, 2015, leaving the current
District now moves for summary judgment as to the remaining
§ 1982 and Title VII claims of each current plaintiff
separately. ECF Nos. 145-47, 150-57, 159-162,
163-66. The District likewise renewed its
motion to dismiss the plaintiffs' claims arising under 42
U.S.C. § 1981. ECF No. 143.
current plaintiff alleges that he or she was discriminated
against on the basis of race during the course of his or her
employment by DCFEMS. Despite this facial similarity,
however, each plaintiff asserts unique factual allegations
underlying his or her individual claims, which also vary
among the plaintiffs. For example, only three plaintiffs
(Gerald Burton, Joshua Fuller, and Tawanna Robinson) assert
causes of action under Title VII. Likewise, while all but
three of the plaintiffs allege that they were subjected to
racially discriminatory discipline, only six plaintiffs
(Charles Addo, Jonathan Morris, Nelson, Robert Person, John
Thomas, and Anthony Walker) allege that they were not
selected for promotion during the relevant years on account
of their race. Although Counts II and III suggest that each
plaintiff alleges that he or she was subject to a hostile
work environment, see SAC ¶ ¶ 424, 436,
the Second Amended Complaint lacks any specific hostile work
environment allegation with respect to five plaintiffs
(Daniel Botts, James Johnson, Albert Montgomery, Nelson, and
Christopher Walker), see SAC ¶ ¶ 74-83,
155-86, 216-28, 355-62. Finally, four plaintiffs allege that
they were subjected to disparate treatment when they were
required to attend a training academy to obtain EMT
individual discrimination claims asserted by each plaintiff
are summarized in the chart below, with checkmarks indicating
the claims asserted by individual plaintiffs.
Counts II & III
chart indicates, and as evidenced by the plaintiffs'
aborted effort to pursue their claims as a class action, the
plaintiffs' claims present a morass of similar, but
distinct allegations of discrimination. With this in mind,
the Court begins by summarizing the relevant undisputed facts
common to two or more of the plaintiffs' allegations.
This summary is followed by a detailed review of each
plaintiffs' individual claims, in alphabetical order,
drawing all justifiable inferences in favor of the plaintiff
and accepting the plaintiff's evidence as true, to assess
the degree to which each plaintiff has presented a triable
issue of fact to overcome the District's motions for
summary judgment. Tolan v. Cotton, 134 S.Ct. 1861,
1863, 188 L.Ed.2d 895 (2014) (per curiam).
doing so, however, the Court pauses to comment on the record
evidence advanced by the plaintiffs in opposition to the
instant motions. In compliance with this Court's rules,
the plaintiffs submitted a Statement of Material Facts in
Genuine Dispute (" Pls.' SMF" ), ECF No.
202-22, that purports to identify elements of the record
tending to support their own claims, as well as noting that
the plaintiffs " rely upon [each general factual
statement] as it relates to themselves and the Statements of
the other Plaintiffs." Pls.' SMF at 1; see
LCvR 7(h) (requiring non-moving party to " set forth
all material facts as to which it is contended there exists a
genuine issue necessary to be litigated" with "
references to the parts of the record relied on" ). This
technical compliance with this Court's rules does little
to mask that the " genuine issues" identified by
the plaintiffs are drawn nearly exclusively from their own
views and beliefs based on anecdotal information or hearsay,
as expressed in their deposition testimony or interrogatory
no doubt earnestly held, the plaintiffs' subjective
impressions and beliefs regarding their experiences while
employed by DCFEMS generally are insufficient to raise a
genuine factual dispute requiring resolution at trial.
Indeed, although the D.C. Circuit recently noted that "
a plaintiff's own firsthand observations of relevant
facts are probative evidence, and . . . we must not set them
aside merely because they come from a party who necessarily
has a stake in the outcome," the Court ultimately
concluded that, where a plaintiff's ostensibly plausible
observations differ with other just as plausible observations
and inferences, the plaintiff's version of the facts
" is not, without more, grounds on which a reasonable
jury could conclude that" the employer " was so far
off base as to suggest that [it] acted with a racial
motive" and, therefore, are insufficient to defeat
summary judgment for employer. Burley v. Nat'l
Passenger Rail Corp., 801 F.3d 290, 2015 WL 5474078 at
*6 (D.C. Cir. 2015); see also Adams v. Wal-Mart
Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)
(affirming summary judgment in favor of defendant where
plaintiff's conclusory assertions about incidents outside
her personal knowledge and without " evidence,
affidavits, or deposition testimony . . . to back up her
account of these incidents," were insufficient to show
that any similarly situated individual outside of her
protected class was treated more favorably); Turner v.
Shinseki, 824 F.Supp.2d 99, 118 (D.D.C. 2011) ("
[W]hen considering a summary judgment motion 'the Court
need not rely on any conclusory allegations unsupported by
factual [evidence].'" ) (quoting Harris v.
Wackenhut Servs., Inc., 648 F.Supp.2d 53, 58 (D.D.C.
2009)) (latter alteration in the original); GE v.
Jackson, 595 F.Supp.2d 8, 36 (D.D.C. 2009) (observing
that when a " declaration is self-serving and
uncorroborated," it is " of little value at the
summary judgment stage" ); Fields v. Office of
Johnson, 520 F.Supp.2d 101, 105 (D.D.C. 2007) ("
Self-serving testimony does not create genuine issues of
material fact, especially where that very testimony suggests
that corroborating evidence should be readily
available." ). This demand for competent corroborating
evidence is particularly pronounced where, as here, the
parties have engaged in extensive discovery, thereby
affording the plaintiffs with ample opportunity to uncover
to the extent the plaintiffs' Statement of Material Facts
in Genuine Dispute either fails to contest facts stated in
the District's assorted Statements of Material Facts or,
in so contesting, fails to refer to admissible evidence
uncovered during discovery supporting the factual dispute,
the Court will " assume that facts identified by the
[District] in its statement of material facts are
admitted." LCvR 7(h).
Common Undisputed Facts
the plaintiffs' claims of workplace discrimination rely
on allegations that certain DCFEMS procedures were
implemented in a discriminatory manner. The Court thus begins
by summarizing the undisputed facts relevant to the operation
of these DCFEMS policies or procedures regarding (1) the use
of a biannual testing regime to guide the promotion of DCFEMS
employees; (2) internal DCFEMS disciplinary procedures; and
(3) DCFEMS's implementation of the District of Columbia
Emergency Medical Services (" EMS" ) Act of 2008,
DC Code § § 7-2341.01 et seq.
DCFEMS Promotion and Testing Procedures
within DCFEMS are governed by the terms of the Collective
Bargaining Agreement (" CBA" ) between the District
and the D.C. Fire Fighters Association. See
Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s Mem.
(Morris)" ), Ex. C (Collective Bargaining Agreement with
Local 36), Art. 20, ECF No. 166-6. Under the CBA, employees
eligible for promotion to Sergeant, Lieutenant, or Captain
sit for biannual examinations. Id. The examination
process includes both a written examination and an
interview-based oral evaluation. Id. The written
examination is scored out of 100 points, with test takers
eligible to receive additional points based on their
educational attainment and seniority. Id. Following
administration and scoring of the exam, DCFEMS must make
reasonable efforts to notify candidates promptly of their
final score and relative standing with regard to other
on the results of these examinations, DCFEMS produces and
disseminates a ranking based on total overall score of each
employee taking the exam, and this ranking dictates the order
in which these employees are eligible to be promoted to the
next-highest rank. Id. Under the terms of the CBA,
DCFEMS uses this list to guide promotion decisions beginning
on October 16 following the administration of each
examination and ending when the list expires on October 15
two years thereafter. Id. Promotion decisions must
be made on a rank-order, non-discriminatory basis, and must
be made consistent with District of Columbia equal
opportunity laws and any affirmative action plan adopted by
the District. Id. Certain plaintiffs challenge their
non-promotion as discriminatory based on two aspects of the
promotion process discussed in more detail below: namely, a
2008 change to the scoring procedure and an incident of
employee misconduct in connection with the 2010 examinations.
2008 Modifications to Exam Scoring Procedures
to the 2008 examination, education and seniority enhancements
were automatically included in the final score for all test
takers. Def.'s SMF (" Def.'s SMF (Addo)" )
¶ 68, ECF No. 146-2. Beginning in 2008, however, DCFEMS
instituted a " cut-off" below which applicants
would not be allowed to proceed past the multiple choice
portion of the examination and therefore would not receive
the benefit of their education and seniority enhancements.
Id. The parties do not dispute that the CBA neither
required nor prohibited these changes. Def.'s Resp.
Pls.' SMF (" Def.'s Resp." ) at 110, ECF
No. 212-1. The change to implement a cut-off score was
instituted when DCFEMS engaged a third-party human resources
consulting firm, named I/O Solutions, to redesign the
promotional test. Def.'s SMF (Addo) ¶ 69.
Misconduct Linked to 2010 Exam
preparation for the 2010 promotional exam, DCFEMS selected
various DCFEMS employees to serve on a subject-matter expert
panel tasked with assisting in the examination's design.
District's SMF (" Def.'s SMF (Pearson)" )
¶ 41, ECF No. 156-2. Prior to the administration of the
exam, all members of the expert panel were sequestered from
other DCFEMS employees. Id. ¶ 42. This
prohibition notwithstanding, a DCFEMS Captain serving on the
expert panel violated the terms of the sequester order by
communicating with a number of DCFEMS employees (including at
least one of the plaintiffs). Id. ; Def.'s SMF
(" Def.'s SMF (Robinson)" ) ¶ 20, ECF No.
165-2. The District asserts that the Captain was promptly
removed from the expert panel before the exam material was
written and therefore received no examination materials.
Def.'s SMF (Pearson) ¶ 43. Consequently, DCFEMS
maintains that this violation of the sequester order did not
compromise the integrity of the examination. Id.
DCFEMS Disciplinary Procedures
the terms of the CBA, disciplinary procedures within DCFEMS
are generally governed by the provisions of Chapter 16 of the
District Personnel Manual and the DCFEMS Rules and
Regulations and Order Book. CBA, Art. 32. Under these
procedures, prior to the initiation of any disciplinary
action, employees must receive, within seventy-five days of
an alleged infraction, an " Initial Written
Notification" and, within sixty days thereafter, a
notice of " Proposed Action" describing the range
of discipline being considered and indicating the
adjudicatory body within DCFEMS that will consider any appeal
of the Proposed Action. Id.
separate adjudicatory bodies, a Battalion Chief's
Conference, a Deputy Chief's Conference and a Trial
Board, are available to review charges against DCFEMS
employees, depending upon the potential severity of any
recommended punishment. Specifically, a Battalion Chief's
Conference may be convened to consider challenges to Proposed
Actions for minor infractions, for which the maximum penalty
imposed does not exceed a 72-hour suspension. Id.
Decisions from a Battalion Chief's Conference may be
appealed, first, to the Assistant Fire Chief and, ultimately,
to the Fire Chief. Id. Proposed Actions alleging
more serious infractions, for which maximum suspensions
imposed range between 72 hours and 120 hours, are considered
by a Deputy Chief's Conference and appealed to a Trial
Board. Id. Finally, Proposed Actions alleging
serious infractions are referred to a Trial Board, which is
comprised of two Captains and two Battalion Fire Chiefs,
appointed by the Fire Chief. Id. Trial Boards are
responsible for making a determination as to the guilt or
innocence of the employee for the charged infraction and
recommending appropriate penalties to the Fire Chief, who is
responsible for adopting or modifying the proposed penalty,
or dismissing the case against the employee. Id. An
employee may appeal a final decision by the Fire Chief only
to the D.C. Office of Employee Appeals. Id.
EMT Certification Requirement and Training Academy
1987, the DCFEMS Order Book has required all DCFEMS EMS
providers, including all firefighters who assume duty on an
EMS unit, to maintain a valid EMT card. Def.'s SMF
(" Def.'s SMF (Botts)" ) ¶ 11, ECF No.
147-2; Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s
Mem. (Botts)" ), Ex. E (DCFEMS General Order Book, Art.
XXIV) § § 1-3, ECF No. 147-8. Despite this
longstanding requirement, however, employees hired before
1987 cannot be terminated for failure to obtain or maintain a
valid EMT card. Id.
2009, the D.C. Council enacted the District of Columbia EMS
Act. The EMS Act provides that " no person shall perform
the duties of emergency medical services personnel in the
District, whether for compensation or not for compensation,
without first having obtained a certification from the Mayor
to do so." D.C. Code § 7-2341.05. The D.C.
Department of Health has since adopted, as the District's
required EMS certification standard, a certification by the
National Registry of Emergency Medical Technicians ("
NREMT" ), which is a private, non-profit organization
that administers a nationally recognized, industry-accepted
EMT certification process for state and local emergency
medical services providers. Def.'s SMF (" Def.'s
SMF (Johnson)" ) ¶ ¶ 20-21, ECF No. 151-2.
Effective July 1, 2009, all DCFEMS employees certifying or
re-certifying as EMS providers were required to complete the
NREMT certification process. Id. ¶ 22. No
DCFEMS employees are exempt from obtaining NREMT
certification as a condition for obtaining a D.C. EMS
certification card, id. ¶ 27, although--as
noted--employees hired before 1987 are not subject to
termination for failing to obtain a certification card.
in 2007, in accordance with recommendations issued by the
Mayor's Task Force on EMS and in anticipation of the
statutory requirement adopted in the EMS Act, DCFEMS assigned
employees to NREMT certification courses at the NREMT "
Training Academy." Id. ¶ ¶ 23-24.
Employees were detailed to certification courses and the
Training Academy on a staggered basis, such that, by December
2010, a total of 1,573 DCFEMS employees had obtained NREMT
certification, with only approximately sixty active
firefighters still awaiting an EMT class. Id. ¶
¶ 25-26; Def.'s Mem. (Johnson), Ex. I (Exec. Summary
on the Status of NREMT) at 37-38, ECF No. 151-12. While
detailed to the Training Academy, DCFEMS employees are not
eligible to work overtime. Def.'s SMF (Johnson) ¶
33; see also Def.'s Mem. (Johnson), Ex. J (Decl.
of Brian K. Lee) ¶ 14, ECF No. 151-13.
The Plaintiffs' Individual Allegations
noted, despite ample opportunity for discovery, the
plaintiffs rely heavily on their own uncorroborated beliefs
and feelings for their allegations of discriminatory
treatment within DCFEMS. This reliance is highlighted in the
summaries that follow of each plaintiff's allegations.
Plaintiff Charles Addo
Addo worked for DCFEMS from 1982 until his retirement in
2013. SAC ¶ ¶ 37, 48; Def.'s SMF (Addo) ¶
¶ 4, 6. During this time, Addo alleges that he was
subjected to discriminatory non-promotion due to his
non-ranking for promotion in 2008 and low ranking in 2010;
racially discriminatory discipline because he was more
promptly disciplined than white firefighters for the same
infractions; and a hostile workplace environment. SAC ¶
¶ 49, 51-53.
took both the 2008 and 2010 DCFEMS promotional examinations
seeking to be promoted to Captain. Def.'s SMF (Addo)
¶ ¶ 70, 79. In 2008, Addo failed to meet the
cut-off score, and his education points therefore were not
added to his composite score. Id. ¶ 71. As a
result, Addo did not qualify for the oral assessment portion
of the 2008 exam. Id. In 2010, Addo exceeded the
cut-off score and was ranked in the 40s on the resulting
promotional list, but he again was not promoted. Id.
¶ ¶ 79-80. Addo asserts that he would have been
promoted to Captain in 2008 but for the cut-off score.
Id. ¶ 72. He alleges that the modifications to
the examination procedure implemented in 2008 made it more
difficult for African-American candidates to be promoted.
Id. ¶ 74.
Discriminatory Discipline Allegations
2009, DCFEMS initiated a disciplinary action against Addo
after he failed to provide timely reports of his supervision
of another firefighter's training. SAC ¶ 39;
Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s Mem.
(Addo)" ), Ex. C (Pl. Charles Addo's Answers
Def.'s Am. Interrogs.), No. 2, ECF No. 169-6. The
Proposed Action recommended a 72-hour suspension. Def.'s
SMF (Addo) ¶ 25. Addo successfully contested the
proposed discipline at a Battalion Chief's Conference and
received only an official reprimand in connection with the
incident. Def.'s SMF (Addo) ¶ 28.
was again disciplined in 2010 for missing a series of medical
appointments at the D.C. Police and Fire Clinic ("
PFC" ). First, Addo accepted a 12-hour suspension after
missing an appointment on June 11, 2010. Def.'s SMF
(Addo) ¶ ¶ 50-51. Thereafter, Addo missed two
additional PFC appointments on June 24 and July 22, 2010.
Def.'s SMF (Addo) ¶ ¶ 52-53. On September 1,
2010, a Deputy Fire Chief's Conference recommended an
84-hour suspension in connection with these missed
appointments. Def.'s SMF (Addo) ¶ 54. After
appealing, Addo ultimately agreed to serve a 24-hour
suspension. Def.'s SMF (Addo) ¶ 55. Addo alleges
that, while he was disciplined within days of missing his PFC
appointments, white DCFEMS firefighters were not promptly
disciplined for similar infractions. SAC ¶ ¶ 47,
49, 54-55; Pl. Addo's Resps. Def.'s SMF (" Addo
Resps." ) ¶ ¶ 56-64, ECF No. 202-3.
Hostile Workplace Allegations
addition to these specific instances of discrimination, Addo
asserts various instances of workplace harassment due to his
race. SAC ¶ ¶ 50-51, 53. First, Addo alleges that,
beginning in 2007, his supervisors often unfairly criticized
his work performance. Pls.' SMF at 4-8; SAC ¶ ¶
19-20, 39, 48. Addo claims that he complained about his
supervisor's harassing conduct to DCFEMS leadership on
three occasions. Def.'s Mem. (Addo), Ex. B at 48:19-49:1.
addition, in October 2009, Addo injured his shoulder while on
duty. Def.'s SMF (Addo) ¶ 33; Def.'s Mem.
(Addo), Ex. B at 67:19-68:2, 74:3-5. At the PFC, Addo
requested treatment from a particular doctor and was advised
that this doctor was unavailable. Def.'s SMF (Addo)
¶ ¶ 34-38. When Addo requested that his preferred
doctor perform a required surgery to repair the injury, he
was again informed that this doctor was unavailable and he
would therefore have to pay for the surgery himself in order
to have it performed by his preferred doctor. Def.'s SMF
(Addo) ¶ 39. The surgery was ultimately performed by
another doctor at the expense of DCFEMS. Def.'s SMF
(Addo) ¶ 41. Although DCFEMS maintains no formal
choice-of-doctor provision, see Def.'s SMF
(Addo) ¶ ¶ 43, Addo alleges that white employees
are permitted to choose their doctor, SAC ¶ 44;
Def.'s Mem. (Addo), Ex. C at 5.
Plaintiff Kwame Agyeman
Agyeman has served as a DCFEMS firefighter since 1985.
Def.'s SMF (" Def.'s SMF (Agyeman)" )
¶ 3, ECF No. 162-2. During the course of his employment
Agyeman alleges that he was subject to racially disparate
discipline and a hostile work environment. SAC ¶ ¶
Discriminatory Discipline Allegations
approximately 2000 to 2002, and again in 2006, Agyeman served
in the DCFEMS Fire Investigation Unit. Def.'s SMF
(Agyeman) ¶ ¶ 4, 9, 18. At some point during his
second assignment to the unit, Agyeman was charged with
recording false information on an arrest warrant review
checklist and providing false information to the U.S.
Attorney's Office. Id. ¶ 21; Def.'s
Mem. Supp. Mot. Summ. J. (" Def.'s Mem.
(Agyeman)" ), Ex. F (Letter of Decision/Not Guilty), ECF
No. 162-9. Apparently as a result of these charges, the U.S.
Attorney's Office placed Agyeman on a list of
investigators ineligible to testify in court (called the
" Lewis List" ). Def.'s SMF (Agyeman) ¶
16; Def.'s Mem. (Agyeman), Ex. F. Consistent with DCFEMS
policy, Agyeman was transferred from the Fire Investigation
Unit, in December 2006, as a result of his placement on this
list. Def.'s SMF (Agyeman) ¶ ¶ 15-18.
March 2007, however, the Trial Board considering the charges
concluded that Agyeman submitted the challenged report "
in the honest believe that it was truthful and correct,"
and found Agyeman not guilty of the charged infractions.
Def.'s SMF (Agyeman) ¶ 22; Def.'s Mem.
(Agyeman), Ex. F. Noting that Agyeman was apparently
erroneously placed on the list of investigators ineligible to
testify at trial, the Trial Board ordered its decision to be
forwarded to the U.S. Attorney's Office. Def.'s SMF
(Agyeman) ¶ ¶ 24-25. Agyeman does not believe that
the Trial Board was racially biased, and he acknowledges that
he ultimately did not receive any discipline as a result of
the Trial Board hearing. Id. ¶ ¶ 26-27.
Nonetheless, Agyeman alleges that he was disparately
disciplined based on the District's refusal to reassign
him to the Fire Investigation Unit. SAC ¶ ¶ 64-65.
Hostile Work Environment Allegations
was reassigned to the Fire Investigators Unit in early 2006,
Agyeman avers that his supervisors described the transfer as
a promotion. Pl. Agyeman's Resps. Def.'s SMF ("
Agyeman Resps." ) ¶ 5, ECF No. 202-4. Although
internal DCFEMS notices announcing the transfer did not
describe Agyeman's new position as a promotion,
Def.'s SMF (Agyeman) ¶ 9, Agyeman contends that the
transfer was intended to be a promotion, for which he was
entitled to a pay increase while serving in the unit,
id. Agyeman did not receive his desired pay
increase, and the parties disagree as to whether Agyeman
properly submitted his request. Agyeman Resps. ¶ ¶
further contends that DCFEMS engaged in a systematic effort
to remove African-American employees from the Fire
Investigation Unit. Although acknowledging that DCFEMS
maintains a policy of summarily removing from the unit
investigators who are placed on the Lewis List, Agyeman
asserts that African-American investigators were replaced in
the unit with white investigators. Agyeman Resps. ¶
Agyeman avers that he was wrongfully denied certification as
a foam unit technician and was required to attend the DCFEMS
mandatory EMT recertification program, despite being
ineligible for termination for failure to maintain EMT
credentials. Id. ¶ ¶ 28-29; Pls.' SMF
Plaintiff Daniel Botts
Botts began service as a DCFEMS firefighter in 1982 and was,
in 2004, promoted to a fire inspector in the Fire
Marshal's Office. Def.'s SMF (Botts) ¶ ¶
3-4. Botts alleges that he was wrongfully assigned to the
NREMT Training Academy and subjected to a hostile work
environment. SAC ¶ ¶ 74-83.
NREMT Training Allegations
allowed his EMT Card to expire in January 2009, resulting in
his transfer to the NREMT Training Academy later that year.
Def.'s SMF (Botts) ¶ 21. Botts avers that he is
not an EMS provider, Pl. Botts' Resps. Def.'s SMF
(" Botts Resps." ) ¶ 20, ECF No. 202-5, and
was told that he did not need an EMS card while working in
the Fire Marshal's Office, Def.'s Mem. (Botts), Ex. B
at 76:6-9. Consequently, he contends that his assignment to
the Training Academy was due to racial discrimination since
similarly situated white firefighters were not required to
obtain NREMT certification. SAC ¶ 83; Def.'s SMF
(Botts) ¶ 27. Citing his deposition testimony and
interrogatory responses as support for this contention, Botts
claims that he was told that as many as 100 white
firefighters hired before 1986 did not have to go to the
Training Academy. Def.'s SMF (Botts) ¶ 37; Pls.'
SMF at 13. After initially indicating that he could not
recall how he obtained this information, Botts later claimed
that a Fire Sergeant named " Maria" told him about
the alleged racial disparity in the Training Academy.
Def.'s SMF (Botts) ¶ 37. Further, he claims that an
unnamed superior expressed his concern to Botts that
African-American firefighters were required to attend the
Training Academy while " a lot of white guys are out
there who don't have to come down here [to the Training
Academy]." Id. ¶ 38.
took and failed the NREMT certification exam five times
between January 2009 and August 2010. Id. ¶ 23.
While he is not subject to termination for failing to
maintain EMT certification, he alleges that DCFEMS employees
told him that he could be fired if he did not pass the NREMT
examination. Botts Resps. ¶ ¶ 25-26.
Hostile Work Environment Allegations
does not expressly allege that he was subjected to a hostile
work environment, see SAC ¶ ¶ 74-83, but
asserts that he was frequently harassed by fellow
firefighters both on account of his race, Def.'s Mem.
(Botts), Ex. A at 33:18-21, and his unrelated personal views
( e.g., his religious beliefs, vegetarianism, and
belief in UFOs), Def.'s SMF (Botts) ¶ ¶
39-40. As evidence, Botts claims that, in
2002 or 2003, his car was keyed and broken into and his
personal effects were disturbed and stolen. Id.
¶ 41. In the same time period, Botts asserts that
someone put " charred" glass in his firefighting
equipment. Id. The Metropolitan Police Department
(" MPD" ) investigated this latter incident and was
unable to substantiate Botts' claim. Id.
Although he does not know who broke into his car or placed
glass in his gear, he asserts that these incidents were
motivated by race. Pls.' SMF at 17-18.
addition, following his promotion to Fire Inspector in 2004,
Botts alleges that an accompanying pay raise was not timely
processed. SAC ¶ ¶ 77-78; Def.'s SMF (Botts)
¶ ¶ 5-7. After Botts submitted a complaint to the
DCFEMS Equal Opportunity Office (" EEO" ) in 2006
regarding the overdue raise, the EEO found no evidence of
discrimination. Def.'s Mem. (Botts), Ex. C (Ltr. from
Detria J. Liles Hutchinson to Daniel Botts), ECF No. 147-6.
Ultimately, Botts was awarded the pay increase in 2006 and
received back pay for the period during which the raise was
not in effect. Def.'s Mem. (Botts), Ex. A, Ex. 9.
According to Botts, the paperwork for a white employee, who
was also promoted, was processed three weeks after he was
transferred. SAC ¶ 79.
although he does not provide specific dates, Botts asserts
various additional instances of workplace harassment,
including: (1) DCFEMS not allowing African-American employees
to work overtime, Def.'s Mem. (Botts), Ex. A at 35:2-5;
(2) a physical altercation between Botts and a Fire Chief
" years ago," id. at 34:11-14; (3) white
firefighters tampering with African-American
firefighters' equipment, id. at 35:12-1; (4)
disparate assignment practices, id. at 35:6-11; and
(5) two instances of white firefighters using racial
epithets, id. at 37:20-38:1.
Plaintiff Gerald Burton
Burton is an African-American firefighter employed by DCFEMS.
Def.'s SMF (" Def.'s SMF (Burton)" ) ¶
1, ECF No. 145-2. Burton alleges that he was subjected to
racially disparate discipline that amounts to a hostile work
environment. SAC ¶ ¶ 94, 99-101.
allegations stem from an event that occurred on November 21,
2007, when Burton requested permission to respond to a
dispatch call transmitted to all D.C. Fire Department units
regarding a house fire. Def.'s SMF (Burton) ¶ ¶
3-4; Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s
Mem. (Burton)" ), Ex. C (Stmt. of Michael T. Reilley,
1st Battalion Fire Chief), at 2, ECF No. 145-3. The District
contends that Burton was returning from a training drill at
the time of the relevant dispatch call and Burton alleges
that he was heading to the drill and driving in the
direction of the house fire, when he requested permission to
respond to the call. Pl. Burton's Resps. Def.'s SMF
¶ ¶ 3-4, ECF No. 202-6. Although Burton's
superior ordered him to disregard the alarm, Burton proceeded
to the scene of the fire. Def.'s SMF (Burton) ¶ 5.
According to Burton, once he reached the vicinity of the
fire, nearby citizens requested that he attend to it. Burton
Resps. ¶ 5, ECF No. 202-6. Burton further asserts that
he heard " crackling" noises and decided to address
the fire despite his contrary orders. Def.'s Mem.
(Burton), Ex. A at 31:1-4.
arriving on the scene, Burton's superior ordered Burton
to take a support role in assisting the larger response to
the fire. Def.'s SMF (Burton) ¶ 7. Burton contends
that he could not take such a role because no other fire
truck was on the scene. Def.'s Mem. (Burton), Ex. A at
30:10-16. Burton contends that he did not ignore this second
order, but concedes that he did not take the support role as
instructed. Burton Resps. ¶ 7. Thus, he acknowledges
that he did not follow orders. Def.'s Mem. (Burton), Ex.
A at 31:9-18. Burton asserts that he was successful in
preventing the fire from spreading elsewhere in the building
and that his superior ultimately agreed that he helped to
subdue the fire. Id.
weeks later, however, Burton received an initial written
notification of pending disciplinary charges against him for
having disobeyed orders. Def.'s SMF (Burton) ¶ 14;
Def.'s Mem. (Burton), Ex. E (Initial Written Notice), ECF
No. 145-3. Following this initial notice, Burton's
attorney spoke to the press on his behalf. Def.'s SMF
(Burton) ¶ 15. Thereafter, Burton received a Proposed
Action notice alleging four infractions: (1) falsely
representing that his engine company was already at the scene
of the active fire at the time of the call; (2) disobeying a
direct order of a superior not to respond to the scene; (3)
disregarding the subsequent order and failing to adhere to
standard practices in fighting fire which " could have
jeopardized the lives of the firefighters battling the fire
and could have caused additional loss of property; " and
(4) " through his representative, . . . provid[ing]
false information to the media" that compromised the
image of DCFEMS and using the media " to influence the
public in impacting an internal disciplinary case."
Def.'s Mem. (Burton), Ex. I (Proposed Action), ECF No.
145-3. The Trial Board considering these charges determined
that the plaintiff disobeyed orders and ignored proper
procedures at the scene of a fire, resulting in a unanimous
recommendation for a 180-hour suspension. Def.'s SMF
(Burton) ¶ ¶ 23-24; Def.'s Burton Mem., Ex. G
(Trial Board Letter of Decision/Suspension), ECF No. 145-3.
Burton successfully appealed the Trial Board's
recommendation, resulting in a reduction of his punishment to
seventy-two hours, with reimbursement of the back pay and
benefits for the 108 hours that were set aside. Def.'s
SMF (Burton) ¶ 26; Def.'s Mem. (Burton), Ex. J
(Amended Letter of Decision/Suspension), ECF No. 145-3.
Burton appealed his reduced punishment to the D.C. Office of
Employee Appeals, which declined to consider the appeal
because the reduced suspension did not meet the Office's
jurisdictional threshold. Def.'s SMF (Burton) ¶
alleges that he was disparately disciplined compared to white
firefighters, who were involved in " similar or more
egregious actions." Def.'s Mem. (Burton), Ex. A at
157:11-17. Further, he alleges that he experienced a hostile
work environment by being " subjected to a Deputy Fire
Chief's Conference, Illegal Battalion Conference, a Trial
Board, transferred to Engine 7, suspended and not allowed to
work overtime, and given a discipline for actions that White
employees were not disciplined for." Def.'s Mem.
(Burton), Exh. O (Pl. Burton's Am. Answers Def.'s
First Interrogs.), No. 11, ECF No. 145-3. Finally, he alleges
that he was " served disciplinary papers for the same
charges three (3) different times, at work in front of [his]
co-workers, at the clinic and by federal express [sic] at
[his] house." Id.
Plaintiff Lawrence Clark
Clark is a DCFEMS firefighter who was promoted to Lieutenant
in early 2008. Def.'s SMF (" Def.'s SMF
(Clark)" ) ¶ ¶ 1-2, ECF No. 157-2. Clark
alleges that he was subjected to racially disparate
discipline after he assaulted another person with a knife
during " horseplay," and a hostile work
environment. SAC ¶ ¶ 111-115.
allegations stem primarily from an incident that occurred on
September 16, 2008, when Clark reported to the fire
department to retrieve gear before reporting to an overtime
shift. Def.'s SMF (Clark) ¶ 3; Def.'s Mem. Supp.
Mot. Summ. J. (" Def.'s Mem. (Clark)" ), Ex. C
(Pl.'s Supp. Answer & Obj. Def.'s First Interrogs.),
No. 1, ECF No. 157-6. Upon arrival, Clark encountered an EMT
and a paramedic outside the firehouse. Def.'s SMF (Clark)
¶ 4; Def.'s Mem. (Clark), Ex. D (Memorandum from
Lawrence Clark to Brian Lee), ECF No. 157-7. Clark approached
the paramedic while holding an open pocketknife and began to
" joke around" and engage in " horseplay"
with him, including attempting to " tickle" the
EMT's abdomen. Def.'s SMF (Clark) ¶ 5;
Def.'s Mem. (Clark), Ex. A (Dep. of Lawrence Clark) at
30:2-12; 33:2-11, ECF No. 157-4, Ex. C, No. 1. During the
course of this " horseplay," the EMT sustained a
severe laceration on the back of his hand, which required
emergency treatment at George Washington University hospital
and ultimately resulted in the EMT's ambulance being
placed out of service pending his recovery. Def.'s SMF
(Clark) ¶ ¶ 6-8; Def.'s Mem. (Clark), Ex. E
(Photograph of Injured Hand) at 3, ECF No. 157-8.
superior learned of the incident and interviewed Clark, as
well as the EMT and paramedic on the night it occurred.
Def.'s SMF (Clark) ¶ ¶ 9-10; Def.'s Mem.
(Clark), Ex. G (Mem. from Raymond Gretz to Dennis Rubin), ECF
No. 157-10. The MPD also investigated the incident and
interviewed each of the individuals involved. Def.'s SMF
(Clark) ¶ 12; Def.'s Mem. (Clark), Ex. H (MPD WACIIS
Investigative Supplement Report), ECF No. 157-11. As a result
of these investigations, Clark was summarily removed from his
position and provided with a Proposed Action charging him
with: (1) " knowingly and recklessly wav[ing] a pocket
knife at [the EMT] causing significant bodily injury; "
(2) " fail[ing] to take appropriate supervisory
action" by leaving the scene of the incident "
without documenting or otherwise giving notice to [his]
supervisors . . . of this unusual incident; " and (3)
" fail[ing] to take action to ensure that [the injured
EMT] received appropriate medical care and attention."
Def.'s SMF (Clark) ¶ ¶ 13-18; Def.'s Mem.
(Clark), Ex. F (Notice of Summary Removal and Proposed
Action), ECF No. 157-11.
extensive proceedings before a DCFEMS Trial Board--during
which Clark was represented by counsel and the Board received
testimony from sixteen witnesses as well as audio and written
evidence--the Board unanimously found Clark guilty of both
assaulting the EMT and failing to report the incident.
Def.'s SMF (Clark) ¶ ¶ 22, 25, 27; Def.'s
Mem. (Clark), Ex. I (Final Bd. Ltr. of
Decision/Suspension/Demotion). The Trial Board recommended
that Clark be demoted to Sergeant and suspended for 240
hours. Def.'s SMF (Clark) ¶ ¶ 30-31, 33. As a
result, Clark's summary removal was retracted and Clark
received back pay to the date of his reinstatement.
Def.'s SMF (Clark) ¶ ¶ 34-35; Def.'s Mem.
(Clark), Ex. J (Notification of Personnel Action), Ex. K
(Reinstatement with Back Pay Worksheet/Check Off List).
his reinstatement, Clark alleges that he was disparately
disciplined in comparison to white DCFEMS employees for
similar or more egregious actions. SAC ¶ ¶ 111-114.
Moreover, he alleges that he was subjected to a hostile work
environment as a result of DCFEMS's alleged policy of
discriminatory discipline. SAC ¶ 115.
Plaintiff Charles Florence
Florence retired as a DCFEMS firefighter on July 30, 2010.
Def.'s SMF (" Def.'s SMF (Florence)" )
¶ 27, ECF No. 155-2; Def.'s Mem. Supp. Mot. Summ. J.
(" Def.'s Mem. (Florence)" ), Ex. K (Optional
Retirement Order), ECF No. 155-14. Prior to his retirement,
Florence alleges that he was subject to racially disparate
discipline following allegations about Florence's
harassing conduct towards female DCFEMS employees.
April 8, 2009, a female DCFEMS Sergeant filed a complaint
against Florence with the DCFEMS EEO officer. Def.'s SMF
(Florence) ¶ 4; Def.'s Mem. (Florence), Ex. A (EEO
Complaint Form), ECF No. 155-4. The complaint described
various instances of Florence's alleged behavior while on
duty, including five instances of sexually suggestive
comments and/or contact with the Sergeant and a single
instance of aggressive and threatening behavior arising from
an argument between Florence and the complaining Sergeant.
Id. During an ensuing investigation of these
allegations, the DCFEMS EEO discovered numerous additional
instances of Florence's allegedly harassing behavior
towards the complaining Sergeant and other female DCFEMS
employees. Def.'s SMF (Florence) ¶ ¶ 5-7;
Def.'s Mem. (Florence), Ex. A.
13, 2009, DCFEMS provided Florence with a Proposed Action
charging Florence with: (1) engaging in " on-duty or
employment related act[s] or omission[s] that [he] knew or
should have reasonably known was a violation of the
law," with two specifications describing Florence's
alleged sexually inappropriate behavior and otherwise
aggressive conduct; and (2) engaging in " [a]ny on duty
or employment related act or omission that interferes with
the efficiency or integrity of government operations."
Def.'s SMF (Florence) ¶ ¶ 10-11; Def.'s
Mem. (Florence), Ex. A. These charges were considered by a
DCFEMS Trial Board, which unanimously found Florence guilty
of the charge related to his sexually inappropriate comments
and not guilty with respect to the other charges, and
recommended that Florence be demoted to Sergeant, prohibited
from taking the 2012 promotional exam, and suspended for 168
hours. Def.'s SMF (Florence) ¶ ¶ 13-14;
Def.'s Mem. (Florence), Ex. B (Fire Board Findings of
Fact, Conclusions, and Recommendations), ECF No. 155-4.
the conclusion of the Trial Board, Florence was given the
option of retiring instead of being disciplined. Def.'s
SMF (Florence) ¶ ¶ 21-22; Def.'s Mem.
(Florence), Ex. C (Dep. of Charles Florence) at 25:8-26:19,
ECF No. 155-5. Florence asserts that he chose to retire in
order to avoid being publicly labeled as a sexual harasser,
although the parties dispute whether this public labeling
alone ( i.e., absent any corresponding discipline)
would have prompted Florence to retire. Def.'s SMF
(Florence) ¶ ¶ 23-26; Pl. Florence's Resps.
Def.'s SMF (" Florence Resps." ) ¶ ¶
23-26, ECF No. 202-8.
event, Florence asserts that he was " unfairly subjected
to a trial board hearing for events that did not establish
sexual harassment," Def.'s SMF (Florence) ¶ 29;
Def.'s Mem. (Florence), Ex. G (Pl. Florence's Answer
Def.'s First Interrogs.) at No. 1, ECF No. 155-10, and
alleges that he was disparately disciplined in comparison to
white DCFEMS employees, who committed similar or more
egregious infractions, SAC ¶ 126. Florence further
alleges that he was subjected to a hostile work environment
due to this allegedly disparate discipline. Id.
Plaintiff Joshua Fuller
Fuller was hired as a DCFEMS firefighter in February 2005.
Def.'s SMF (" Def.'s SMF (Fuller)" ) ¶
3, ECF No. 164-2. Fuller alleges that he was subjected to
racially disparate discipline after his criminal conviction
for possession of an unregistered firearm, and a hostile work
environment. SAC ¶ ¶ 142-146.
than three years after he joined DCFEMS, Fuller was arrested,
on May 20, 2007, by the MPD and charged with carrying a
pistol without a license and possession of an unregistered
firearm and ammunition. Def.'s SMF (Fuller) ¶ 8;
Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s Mem.
(Fuller)" ), Ex. C (Dep. of Joshua Fuller) at 55:6-12,
ECF No. 164-6. The DCFEMS Order Book requires employees to
" immediately notify" DCFEMS if they are arrested,
although Fuller contends that the DCFEMS generally requires
employees to report arrests within two to three days.
Def.'s SMF (Fuller) ¶ 9; Pl. Fuller's Resps.
Def.'s SMF (" Fuller Resps." ) at 3, ECF No.
202-9. DCFEMS became aware of Fuller's arrest on the day
of the arrest, but the parties dispute the date on which
Fuller--as opposed to the MPD--informed DCFEMS of the
incident. Def.'s SMF (Fuller) ¶ ¶ 10-11; Fuller
Resps. at 3. In June 2007, Fuller pleaded guilty to the
charges for which he was arrested. Def.'s SMF (Fuller)
his guilty plea, Fuller was charged by DCFEMS and ordered to
attend a Trial Board hearing. Def.'s SMF (Fuller) ¶
15; SAC ¶ 136. During the hearing, Fuller unsuccessfully
attempted to introduce phone records purportedly showing that
he attempted to contact his supervisor to alert him of his
arrest soon after it occurred. Def.'s SMF (Fuller) ¶
21; Def.'s Mem. (Fuller), Ex. E (Transcript of Fuller
Trial Board Hearing) at 224:22-225:8, 278:1-14, ECF No.
164-8. The parties disagree as to whether these records were
properly excluded from consideration by the Trial Board.
Fuller Resps. at 7. The parties similarly disagree as to
whether the Board prohibited Fuller from presenting a witness
during the hearing. Def.'s SMF (Fuller) ¶ 22; Fuller
Resps. at 7.
the hearing, the Trial Board unanimously concluded: (1) that
Fuller failed to notify DCFEMS promptly of his arrest; and
(2) that Fuller had in fact pled guilty to the three charges
for which he was arrested. Def.'s SMF (Fuller) ¶ 23;
Def.'s Mem. (Fuller), Ex. D (Ltr. of Decision/Removal),
ECF No. 164-7. The Trial Board recommended termination for
these infractions. Def.'s SMF (Fuller) ¶ 24;
Def.'s Mem. (Fuller), Ex. D.
appealed this recommendation with the D.C. Office of Employee
Appeals. Def.'s SMF (Fuller) ¶ 26; Def.'s Mem.
(Fuller), Ex. G (Petition for Appeal), ECF No. 164-10. In
this appeal, Fuller did not assert that his termination was
the result of racial discrimination, Def.'s SMF (Fuller)
¶ 27; Def.'s Mem. (Fuller), Ex. G, Ex. C at
75:15-20, and the Office of Employee Appeals affirmed the
initial DCFEMS disciplinary action, Def.'s SMF (Fuller)
¶ 28; Def.'s Mem. (Fuller), Ex. B (Office of
Employee Appeals Initial Decision), ECF No.
Plaintiff James Johnson
Johnson served as a DCFEMS firefighter between 1983 and
January 2011. Def.'s SMF (Johnson) ¶ ¶ 1-2.
Johnson alleges he felt compelled to retire after continued
discrimination and harassment that began on or around April
24, 2007, and continued until his retirement. SAC ¶ 157.
His allegations center on two incidents: (1) an investigation
into alleged misconduct in his engine company and his
subsequent transfer, id. ¶ ¶ 158-61; and
(2) his assignment to the NREMT Training Academy,
id. ¶ 162.
NREMT Training Allegations
was transferred to the NREMT Training Academy in March 2008
and remained at the Academy until his retirement. Def.'s
SMF (Johnson) ¶ 28; Def.'s Mem. (Johnson), Ex. A
(Dep. of James Johnson) at 70:15-17, ECF No. 151-4. During
that time, Johnson sat for the NREMT certification
examination six times and failed each time. Def.'s SMF
(Johnson) ¶ 29; Def.'s Mem. (Johnson), Ex. E
(Pl.'s Answer Def.'s Am. Interrogs.) at 4, ECF No.
151-8. Johnson asserts that he was transferred to the
Training Academy on account of his race and " as a
result of testimony in support of a colleague, an African
American." Pls.' SMF at 48. Johnson alleges that he
should not have been required to complete the NREMT
certification course because of his hire date. SAC ¶
¶ 162-65, 168.
alleges that similarly situated white firefighters were not
required to remain in the NREMT certification course,
Pls.' SMF at 50-51, and that, of the people required to
attend the Training Academy who were hired prior to the
cut-off year, none were white, Def.'s SMF (Johnson)
¶ 45; SAC ¶ 168. Finally, Johnson claims that he
was served with adverse action papers in November of 2010 for
failing the NREMT certification six times and placed on
administrative leave pending the resolution of that adverse
action. Def.'s SMF (Johnson) ¶ 38; Def.'s Mem.
(Johnson), Ex. E at 4, 7, 10. While the proposed adverse
action was later recalled, Def.'s SMF (Johnson) ¶
39; Def.'s Mem. (Johnson), Ex. E at 10, Johnson alleges
that he chose to retire primarily due to his continued
assignment to the Training Academy, SAC ¶ 169;
Def.'s SMF (Johnson) ¶ 46; Def.'s Mem.
(Johnson), Ex. E at 13-14.
Hostile Work Environment Allegations
in April 2007, DCFEMS began an investigation into alleged
misconduct in the engine company to which Johnson was
assigned. Def.'s SMF (Johnson) ¶ 3. The
investigation initially centered on an allegation about
tampering with a female African-American firefighter's
self-contained breathing apparatus. Id. ; Def.'s
Mem. (Johnson), Ex. D (Mem. from James Talbert & Michael
Willis to Lawrence Schultz), ECF No. 151-7. In connection
with this investigation, Johnson submitted a report
recommending discipline against white DCFEMS employees for
their alleged harassment of the female firefighter.
Def.'s SMF (Johnson) ¶ 4; Def.'s Mem. (Johnson),
Ex. E at 2-3. Johnson likewise described " numerous
incidents of discrimination, race, and gender" within
his engine company. Id.
DCFEMS investigation eventually expanded to include a review
of other significant operational issues within the engine
company. Def.'s SMF (Johnson) ¶ 3; Def.'s Mem.
(Johnson), Ex. D. Johnson contends that this investigation
turned into a " witch-hunt" focused on his
character. Def.'s Mem. (Johnson), Ex. A at 49:5. In
particular, he claims that during this investigation, DCFEMS
employees asked his coworkers if he was racist or a
troublemaker. Id. at 51:15-16. Although the District
contests this characterization, individual investigators
expressed their concern regarding Johnson's erratic and
abrasive personality and called into question his competency,
with some focus on a conflict between Johnson and another
firefighter in the engine company. Def.'s SMF (Johnson)
¶ 3; Def.'s Mem. (Johnson), Ex. D. Ultimately, in
May 2013, Johnson along with twenty-three other members of
the engine company were transferred to different platoons or
engine companies within DCFEMS. Def.'s SMF (Johnson)
¶ ¶ 5-6; Def.'s Mem. (Johnson), Ex. C. Despite
the transfer, Johnson retained the same duties,
responsibilities, salary, benefits, and promotion potential
available to him in his prior assignment. Def.'s SMF
(Johnson) ¶ 9.
2007, Johnson filed a complaint with the DCFEMS EEO and D.C.
Office of Human Rights alleging that his transfer was the
result of efforts to call attention to racist behavior in his
engine company. Def.'s SMF (Johnson) ¶ 15. Johnson
was reassigned to his original station in July 2007, which
Johnson suggests demonstrates that his initial transfer was
wrongful. Def.'s SMF (Johnson) ¶ ¶ 10, 15;
Def.'s Mem. (Johnson), Ex. E at 3.
Plaintiff Albert Montgomery
Montgomery served as a DCFEMS firefighter from 1984 until his
voluntary retirement in 2009. Def.'s SMF ("
Def.'s SMF (Montgomery)" ) ¶ 2, ECF No. 159-3;
Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s Mem.
(Montgomery)" ), Ex. A (Dep. of Albert Montgomery) at
11:17-12:5, ECF No. 159-4. Montgomery asserts various
instances of racial discrimination between his date of hire
and 2008, including both discriminatory discipline and
assignment to the NREMT Training Academy.
Allegations Prior to 2007
1981, Montgomery asserts that he was discriminated against
during the hiring process after scoring higher on the
entry-level civil service examination than many white
applicants. Def.'s SMF (Montgomery) ¶ 4; Def.'s
Mem. (Montgomery), Ex. B (Pl.'s Supp. Answer Def.'s
Am. Interrogs.), No. 37, ECF No. 159-5. Thereafter, between
June 1984 and 1988, Montgomery alleges that he was subjected
to harassment and physical assault by a white firefighter.
Def.'s SMF (Montgomery) ¶ 4; Def.'s Mem.
(Montgomery), Ex. B at 27, 35.
further claims that he received the following discriminatory
disciplinary actions prior to 2007: (1) a reprimand for
intervening in a house fire in September 1986; (2) a
suspension for insubordination while off duty in May 1988;
(3) a detail to a different duty station for over a year in
August 1988; (4) a twelve-hour suspension after being found
guilty of negligence while on duty in May 1991; (5) a
120-hour suspension for using discourteous language toward an
African-American supervisor in February 2000; and (6) an
official reprimand for failing to safeguard his equipment in
late 2005 or early 2006. Def.'s SMF (Montgomery) ¶
4; Def.'s Mem. (Montgomery), Ex. B at 27, 35.
also asserts that he saw racial epithets written " in
dust on a window sill [sic] and window" in a firehouse
locker room in 2003. Def.'s SMF (Montgomery) ¶ 4;
Pls.' SMF at 54. Montgomery claims he sent a memorandum
about this incident to a superior. Def.'s SMF
(Montgomery) ¶ 4; Def.'s Mem. (Montgomery), Ex. B at
3-4. He alleges that he heard about similar language
appearing on the windowsill and on the window on at least
three other occasions, but he did not witness these
incidents. Def.'s Mem. (Montgomney), Ex. A at 30:2-31:2.
NREMT Training Allegations
before 2007, Montgomery's EMT certification card expired.
Def.'s SMF (Montgomery) ¶ 18; Def.'s Mem.
(Montgomery), Ex. K (Mem. from Frederick Cooper to Douglas
Smith), ECF No. 159-14. As a result, Montgomery was
transferred to the NREMT Training Academy for
recertification. Def.'s SMF (Montgomery) ¶ 19;
Def.'s Mem. (Montgomery), Ex. K. Montgomery completed the
NREMT certification process in December 2008, three months
after being transferred to the Training Academy. Def.'s
SMF (Montgomery) ¶ 24; Def.'s Mem. (Montgomery), Ex.
L (Ltr. from William Brown to Albert Montgomery), ECF No.
alleges he was not required to go to the Training Academy
because he was hired before 1987 and was not required to be
an EMS firefighter. SAC ¶ ¶ 174-75. Further,
relying on his deposition testimony and interrogatory
responses, he alleges that similarly situated white
firefighters were not required to take the recertification
course. Pls.' SMF at 75; SAC ¶ 182.
Plaintiff Jonathan Morris
Morris served as a DCFEMS firefighter from March 1992 until
his termination in April 2010. Def.'s SMF ("
Def.'s SMF (Morris)" ) ¶ 3, ECF No. 166-2.
During his tenure with DCFEMS, Morris alleges that he was
subject to racially discriminatory discipline and
non-promotion, as well as a hostile work environment. SAC
¶ ¶ 199, 201, 204-05.
sat for the 2006 promotional exam seeking promotion to
Sergeant. Def.'s SMF (Morris) ¶ 4. Based on his
composite score, Morris was ranked ninety-ninth out of 300
eligible firefighters on the promotional list at the time it
expired on October 15, 2008. Def.'s SMF (Morris) ¶
¶ 6, 9. The last employee to be promoted to Sergeant
from the 2006 promotion list was ranked seventy-fifth.
Def.'s SMF (Morris) ¶ ¶ 7-8. Morris alleges
that DCFEMS allowed the 2006 promotion list to expire in
order to promote more white firefighters. See SAC
¶ 207. He acknowledges, however, that he is unaware of
any DCFEMS official or supervisor who indicated such a
motive. Def.'s SMF (Morris) ¶ 11.
Discriminatory Discipline Allegations
alleges two instances of disparate discipline. First, in
2007, Morris was suspended for seventy-two hours due to an
away without leave (" AWOL" ) infraction he
received for attending a fellow firefighter's funeral.
Def.'s SMF (Morris) ¶ 42; Def.'s Mem. (Morris),
Ex. I (Pl.'s Answer Def.'s Am. Interrogs.) at 7, 11,
ECF. No. 166-12. Morris alleges that he was incorrectly
deemed to be AWOL and asserts that he believed that he was
granted leave to attend the funeral. See SAC ¶
197; Pl. Morris' Resps. Def.'s SMF (" Morris
Resps." ) ¶ 42, ECF No. 202-12.
following an absence from a mandatory lineup in 2009, Morris
spoke with two supervisors via telephone and falsely reported
that he had been in a car accident in Atlanta and would be
unable to report for his shift. Def.'s SMF (Morris)
¶ ¶ 22-25; Def.'s Mem. (Morris), Ex. A at
59:17-60:3, 62:9-64:4, 68:7-9. Three weeks later, Morris
submitted a report indicating that he had been in a car
accident in Prince George's County on the date of his
absence. Def.'s SMF (Morris) ¶ 26. When asked to
provide documentation in support of this report, Morris
submitted a falsified traffic citation and an altered
registration form for medical treatment at a hospital in
eastern Maryland. Def.'s SMF (Morris) ¶ 27;
Def.'s Mem. (Morris), Ex. A at 68:19-69:17.
2009, DCFEMS notified Morris that he was being charged with
making false statements and providing false documents in
connection with his absence. Def.'s SMF (Morris) ¶
30. At the resulting Trial Board hearing, Morris pleaded
guilty to these charges knowing that doing so could result in
his termination. Def.'s SMF (Morris) ¶ ¶ 31-34;
Def.'s Mem. (Morris), Ex. A at 75:7-14, 81:9-14, 84:9-12.
Accepting his guilty plea, the Trial Board split on its
recommended punishment with respect to the charge of making
false statements, with two members recommending a 216-hour
suspension and two members recommending termination.
Def.'s SMF (Morris) ¶ ¶ 34-36; Def.'s Mem.
(Morris), Ex. H (Final Trial Bd. Ltr. of Decision/Suspension)
at 1, ECF No.166-11. Consistent with the tiebreak procedures
outlined in the CBA, the Assistant Fire Chief reviewed the
case and recommended termination, and Morris was removed from
DCFEMS service in April 2010. Def.'s SMF (Morris) ¶
¶ 37, 39-40; Def.'s Mem. (Morris), Ex. H. Morris
asserts that the Fire Chief pressured the Assistant Fire
Chief to recommend termination, Morris Resps. ¶ 39, and
alleges that he was disparately disciplined relative to white
DCFEMS employees for similar or more egregious conduct, SAC
Hostile Work Environment Allegations
also alleges that he was subjected to a hostile work
environment during the course of his tenure with DCFEMS.
Pls.' SMF at 55-58; SAC ¶ ¶ 202, 205. First, he
claims that a white coworker interfered with his medical care
after Morris injured his back in early 2009. SAC ¶
¶ 189-194. In particular, Morris avers that a DCFEMS PFC
physician changed his diagnosis at the behest of a Battalion
Fire Chief, who had no authority to make medical decisions.
Id. ; Def.'s SMF (Morris) ¶ ¶ 19-20.
Morris alleges that he received unequal work assignments as
compared to his white counterparts. SAC ¶ 195.
Specifically, he asserts that he was assigned to areas of the
District with which he was unfamiliar and to which white
firefighters were not assigned, and that his lack of
familiarity with these areas negatively affected his job
performance. Id. ; Def.'s SMF (Morris) ¶
41. Morris also alleges that he was not permitted to work
overtime assignments due to his race, Pls.' SMF at 46,
though he acknowledges that he was not eligible for such
assignments while he was designated as injured for
performance of duty, Morris Resps. ¶ 43.
Morris alleges that a white firefighter was neither
reprimanded nor disciplined after referring to Morris using a
racial epithet on at least one occasion between 2006 and
2008. Def.'s SMF (Morris) ¶ 16; SAC ¶ 196.
Morris concedes, however, that neither he nor the four
African-American firefighters who allegedly witnessed this
incident reported it to any other DCFEMS employees.
Def.'s SMF (Morris) ¶ 17.
Plaintiff Wayne Nelson
Nelson has served as a DCFEMS firefighter since 1985.
District's SMF (" Def.'s SMF (Nelson)" )
¶ 2, ECF No. 152-2. Although Nelson was promoted to
Lieutenant in August 2013, he alleges that he was not
promoted between 2008 and 2012 due to his race. Id.
¶ 4; SAC ¶ 218.
a promotion to Lieutenant, Nelson sat for both the 2008 and
2010 promotional examinations. Def.'s SMF (Nelson) ¶
26. In 2008, Nelson's composite score ranked
thirty-second out of thirty-six candidates for promotion to
Lieutenant, and approximately twenty-eight candidates were
promoted to Lieutenant. Id. ¶ ¶ 27-28, 36.
In 2010, his composite score ranked ninety-sixth out of 104
candidates, and only forty-one Sergeants were promoted to
Lieutenant from the 2010 promotional list. Id.
¶ ¶ 29, 30, 56.
addition to the modifications to the 2008 exam described
above, see supra Part I.B.1.(a)(i), Nelson alleges
that firefighters sitting for the 2010 exam were required to
write their names on their exams, as opposed to only their
employee identification numbers. SAC ¶ 222; Def.'s
SMF (Nelson) ¶ 34. According to Nelson, this change
enabled DCFEMS to identify exam takers and ensure that white
firefighters would receive higher exam scores. SAC ¶
223; Pl. Nelson's Resps. Def.'s SMF (" Nelson
Resps." ) at 10, ECF No. 202-13. Nelson further alleges
that DCFEMS did not reveal the 2010 examination results in a
timely manner. SAC ¶ 225. According to Nelson, this
delay demonstrates that the 2010 promotion list was based on
test takers' race, as opposed to their composite scores.
Def.'s SMF (Nelson) ¶ 43; Def.'s Mem. Supp. Mot.
Summ. J. (" Def.'s Mem. (Nelson)" ), Ex. A at
40:8-42:1. Finally, Nelson alleges that DCFEMS chose not to
withdraw the 2010 examination results despite violations of
DCFEMS sequester procedures in order to preserve a promotion
list that would permit the promotion of more white
firefighters. SAC ¶ 226; Def.'s SMF (Nelson) ¶
21. By contrast, Nelson alleges that DCFEMS canceled the 2000
promotional exam and terminated an African American
firefighter who violated the sequester procedures associated
with that exam. SAC ¶ 227; Def.'s SMF (Nelson)
Plaintiff Robert Pearson
the course of his service as a DCFEMS firefighter, Robert
Pearson alleges that he has been subjected to racially
discriminatory promotion decisions and disciplinary actions,
as well as a hostile work environment. See SAC
¶ ¶ 229-253.
sat for the DCFEMS Captain promotional examination in 2006,
2008, and 2010. Def.'s SMF (Pearson) ¶ 44. In 2006,
his score ranked fifty-second out of ninety test takers, and
the last Lieutenant to be promoted to Captain was ranked
fortieth on the promotional list. Def.'s SMF (Pearson)
¶ ¶ 45, 48. In 2008, Pearson's score ranked
twenty-sixth out of thirty-eight test takers, and the last
promoted Lieutenant was ranked twenty-fifth. Def.'s SMF
(Pearson) ¶ 46; Def.'s Resp. at 91. In 2010,
Pearson's score ranked thirty-third out of fifty-test
takers, and the last Sergeant to be promoted was ranked
thirtieth. Def.'s SMF (Pearson) ¶ ¶ 47, 52-53.
Citing the aforementioned violation of the DCFEMS sequester
policy, see supra ...