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Burton v. District of Columbia

United States District Court, D. Columbia.

October 9, 2015

GERALD BURTON, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant

          For 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.

         MEMORANDUM OPINION

         BERYL A. HOWELL, United States District Judge.

         Plaintiffs 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 granted.[1]

         I. BACKGROUND

         Although 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.

         The 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.[2]

         A. PROCEDURAL HISTORY

         Claiming 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. ¶ ¶ 115-120).

         The 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.

         Nearly 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.

         The 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.

         Despite 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 nineteen plaintiffs.

         The 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.[3] The District likewise renewed its motion to dismiss the plaintiffs' claims arising under 42 U.S.C. § 1981. ECF No. 143.[4]

         B. FACTUAL BACKGROUND

         Each 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 certification.

         The individual discrimination claims asserted by each plaintiff are summarized in the chart below, with checkmarks indicating the claims asserted by individual plaintiffs.

Count I

Name

Title VII

1

Charles Addo

NO

2

Kwame Agyeman

NO

3

Daniel Botts

NO

4

Gerald Burton

[x]

5

Lawrence Clark

NO

6

Charles Florence

NO

7

Joshua Fuller

[x]

8

James Johnson

NO

9

Albert Montgomery

NO

10

Jonathan Morris

NO

11

Wayne Nelson

NO

12

Robert Pearson

NO

13

Charles Rayford

NO

14

Tawanna Robinson

[x]

15

Michael Sims

NO

16

John Thomas

NO

17

Christopher Walker

NO

18

Anthony Williams

NO

19

Antoine Williams

NO

Counts II & III

Name

Non-Promotion

Discipline

Hostile Work

Training

Environment

Academy

1

Charles Addo

[x]

[x]

[x]

NO

2

Kwame Agyeman

NO

[x]

[x]

[x]

3

Daniel Botts

NO

NO

NO

[x]

4

Gerald Burton

NO

[x]

[x]

NO

5

Lawrence Clark

NO

[x]

[x]

NO

6

Charles Florence

NO

[x]

[x]

NO

7

Joshua Fuller

NO

[x]

[x]

NO

8

James Johnson

NO

NO

NO

[x]

9

Albert Montgomery

NO

[x]

NO

[x]

10

Jonathan Morris

[x]

[x]

[x]

NO

11

Wayne Nelson

[x]

NO

NO

NO

12

Robert Pearson

[x]

[x]

[x]

NO

13

Charles Rayford

NO

[x]

[x]

NO

14

Tawanna Robinson

NO

[x]

[x]

NO

15

Michael Sims

NO

[x]

[x]

NO

16

John Thomas

[x]

[x]

[x]

NO

17

Christopher Walker

NO

[x]

NO

NO

18

Anthony Williams

[x]

[x]

[x]

NO

19

Antoine Williams

NO

[x]

[x]

NO

         As this 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).

         Before 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 responses.

         While 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 such evidence.

         Accordingly, 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).

         1. Common Undisputed Facts

         Many of 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.

         a) DCFEMS Promotion and Testing Procedures

         Promotions 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 applicants. Id.

         Based 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.

         (i) 2008 Modifications to Exam Scoring Procedures

         Prior 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.

         (ii) Misconduct Linked to 2010 Exam

         In 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.

         b) DCFEMS Disciplinary Procedures

         Under 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.

         Three 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.

         c) EMT Certification Requirement and Training Academy

         Since 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.

         In 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.

         Beginning 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.

         2. The Plaintiffs' Individual Allegations

         As 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.

         a) Plaintiff Charles Addo

         Charles 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.

         (i) Non-Promotion Allegations

         Addo 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.

         (ii) Discriminatory Discipline Allegations

         In 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.

         Addo 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.

         (iii) Hostile Workplace Allegations

         In 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.

         In 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.

         b) Plaintiff Kwame Agyeman

         Kwame 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 ¶ ¶ 65, 68-69.

         (i) Discriminatory Discipline Allegations

         From 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.

         In 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.

         (ii) Hostile Work Environment Allegations

         When he 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. ¶ ¶ 11-14.

         Agyeman 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. ¶ ¶ 19-20.

         Finally, 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 at 10-12.

         c) Plaintiff Daniel Botts

         Daniel 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.

         (i) NREMT Training Allegations

         Botts 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.[5] 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.

         Botts 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.

         (ii) Hostile Work Environment Allegations

         Botts 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.[6] 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.

         In 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.

         Finally, 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.

         d) Plaintiff Gerald Burton

         Gerald 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.

         His 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.

         Upon 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.

         Two 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) ¶ 28.[7]

         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.

         e) Plaintiff Lawrence Clark

         Lawrence 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.

         His 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.

         Clark's 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.

         Following 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).

         Despite 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.

         f) Plaintiff Charles Florence

         Charles 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.

         On 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.

         On July 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.

         Following 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.

         In any 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. ¶ 128.

         g) Plaintiff Joshua Fuller

         Joshua 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.

         Less 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) ¶ 14.

         Following 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.

         Following 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.

         Fuller 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. 164-5.[8]

         h) Plaintiff James Johnson

         James 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.

         (i) NREMT Training Allegations

         Johnson 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.

         Johnson 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.

         (ii) Hostile Work Environment Allegations

         Beginning 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.

         The 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.

         In June 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.[9]

         i) Plaintiff Albert Montgomery

         Albert 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.

         (i) Allegations Prior to 2007

         In 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.

         Montgomery 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.

         Montgomery 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.

         (ii) NREMT Training Allegations

         Sometime 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. 188-15.

         Montgomery 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.

         j) Plaintiff Jonathan Morris

         Jonathan 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.

         (i) Non-Promotion Allegations

         Morris 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.

         (ii) Discriminatory Discipline Allegations

         Morris 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.

         Second, 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.

         In June 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 ¶ 201.

         (iii) Hostile Work Environment Allegations

         Morris 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.

         Second, 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.

         Finally, 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.

         k) Plaintiff Wayne Nelson

         Wayne 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.

         Seeking 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.

         In 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) ¶ 23.

         l) Plaintiff Robert Pearson

         During 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.

         (i) Non-Promotion Allegations

         Pearson 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 ...


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