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Donovan v. Powell

United States District Court, District of Columbia

January 8, 2016

EARL A. POWELL, III, Defendant.



Plaintiff Denis Brendan Donovan brings this action against Defendant Earl A. Powell, III, in his official capacity as Director of the National Gallery of Art (“NGA”), asserting claims that the NGA discriminated against him in violation of the Rehabilitation Act, 29 U.S.C. §§ 701, et seq. Currently before the Court is Defendant’s [28] Motion for Summary Judgment. As of the date of this Memorandum Opinion, Plaintiff, who is represented by counsel, has not filed a response to Defendant’s motion or sought an extension of time in which to do so.[1] As such, the Court shall deem the facts presented by Defendant in support of its motion for summary judgment as admitted for the purposes of this analysis. LCvR 7(h)(1) (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”); see also Fed. R. Civ. Pro. 56(e)(2) (“If a party . . . fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.”). Upon consideration of the pleadings, [2]the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant’s [28] Motion for Summary Judgment. Accordingly, the Court shall enter JUDGMENT for Defendant on all of Plaintiff’s remaining claims.


A. Procedural History

On April 29, 2014, Plaintiff filed suit against Defendant in this Court asserting four claims for relief under the Rehabilitation Act: (1) he was subject to disparate treatment in violation of 29 C.F.R. § 1630.4 (“Count I”); (2) he was subject to disparate treatment in violation of 29 C.F.R. § 1630.7 (“Count II”); (3) the NGA failed to reasonably accommodate him in violation of 29 C.F.R. § 1630.12 (“Count III”); and (4) he was subject to retaliation and coercion in violation of 29 C.F.R. § 1630.12 (“Count IV”). In response to the Complaint, Defendant filed its [9] Motion to Dismiss in Part, contending that Counts II and III of the Complaint should be dismissed in their entirety based on Plaintiff’s failure to state a claim, and Counts I and IV should be dismissed to the extent that they are based on time-barred acts. Plaintiff filed no response to Defendant’s Motion to Dismiss in Part. The Court issued an Order and accompanying Memorandum Opinion granting Defendant’s Motion to Dismiss in Part both on the grounds that the motion was conceded and on the merits. See Order (Oct. 2, 2014), ECF No. [11]; Mem. Op. (Oct. 2, 2014), ECF No. [12]. Pursuant to the Court’s Order, Plaintiff’s claims for relief under Counts I and IV as related to his 2004 request for reasonable accommodation and his 2006 discipline and suspension were dismissed. As such, the only remaining claims before the Court are Counts I (disparate treatment) and IV (retaliation and coercion) to the extent that Plaintiff seeks relief for his January 2013 termination and the incidents that occurred in December 2012. Specifically, Plaintiff alleges in his Complaint that he was treated differently than other NGA employees who were similarly situated because of his epilepsy, and that there was a causal connection between the termination of Plaintiff’s employment on January 23, 2013, and the protected activity that he engaged in on December 19, 2012. Defendant now seeks an award of summary judgment in Defendant’s favor with respect to both of Plaintiff’s remaining claims.

B. Undisputed Material Facts

In 2012, Plaintiff Denis Donovan was employed as a Sales Store Checker in the gift shop at the National Gallery of Art (“NGA”). Def.’s Stmt. ¶ 1. On Tuesday, December 4, 2012, a member of the public (“the caller”) left a voice message with the NGA requesting that a manager call her back in response to a complaint about an inappropriate comment that was made to the caller’s 15-year-old daughter by a cashier while her daughter was at the NGA’s gift shop on the previous day. Id. ¶¶ 2-3. Karen Boyd, Deputy Division Chief/Operations Manager for the Gallery Shops returned the telephone call. Id. ¶ 4. The caller told Ms. Boyd that her daughter handed the cashier a folded bill to purchase an item and the cashier told the girl to unfold the money. Id. ¶ 5. When the daughter unfolded the money and handed it back to the cashier, the cashier responded, “that’s how you give money to a stripper.” Id. The caller provided Ms. Boyd with the information on the sale receipt, including the employee name and employee number, which identified Plaintiff as the cashier. Id. ¶ 6. The caller also provided a physical description of the cashier - a bald male of medium height - to Ms. Boyd. Id. ¶ 7. The physical description matched Plaintiff. Id.

When Ms. Boyd confronted Plaintiff with these allegations, Plaintiff simply claimed that he did not remember the incident. Id. ¶ 8. However, Plaintiff never asserted that the incident did not occur. Id. On January 11, 2013, Ms. Boyd provided Plaintiff with a notice proposing his removal from employment at the NGA based on his inappropriate statement to a minor. Id. ¶ 11. Plaintiff was advised in that notice that he “may respond to this proposal, orally and/or in writing, to Mr. David Krol, Chief of Retail Operations, who is the deciding official in this action.” Id. ¶ 12. In that notice, Plaintiff also was advised that “if there are medical or other conditions that may have affected your conduct as outlined above, you may provide medical or other information as part of your response.” Id. ¶ 13. The notice indicated that Plaintiff had seven days to submit his response or request an extension to respond. Id. Plaintiff received the notice on January 11, 2013, and had an opportunity to review that document. Id. ¶ 14. However, Plaintiff provided no response to the notice, nor did he request an extension of time to respond. Id. ¶ 15. Moreover, Plaintiff did not provide any medical documents to Mr. Krol in an attempt to explain his conduct. Id. ¶ 16.

After considering the proposal to remove and supporting documentation, and in the absence of any response from Plaintiff, Mr. Krol decided that removal was warranted for Plaintiff’s conduct and notified Plaintiff by letter dated January 23, 2013, of his decision removing Plaintiff from his employment with the NGA. Id. ¶ 17. Mr. Krol was not aware of Plaintiff’s disability at the time of his decision nor was he aware of any prior protected conduct by Plaintiff at the time of his decision. Id. ¶¶ 18-19. Plaintiff acknowledged that he is unaware of any other person whom he believed was treated more favorably under similar circumstances, Def.’s Mot., Ex. E at 27:5-11 (Donovan Dep.), ECF No. [28-5]; Def.’s Mot., Ex. H at 13 (EEO Docs.), ECF No. [28-8], and both Ms. Boyd and Mr. Krol indicated that they were not aware of any other NGA Shop employees who engaged in similar behavior, Def.’s Mot., Ex. F at 8 (Boyd Decl.), ECF No. [28-6]; Id., Ex. G at 4 (Krol Decl.), ECF No. [28-7]. Plaintiff’s alleged prior protected conduct on which Plaintiff bases his claim of retaliation occurred in 2004. Def.’s Stmt. ¶ 20.

Subsequently, during the Equal Employment Opportunity (“EEO”) complaint process, Plaintiff explained that “one of the symptoms of my disability [epilepsy] is that during a seizure, I can be unaware of what I am saying or doing. So I cannot say with certainty that I did not make that statement.” Id. ¶ 9. However, Plaintiff did not mention the possibility of a seizure to Ms. Boyd when she asked him about the incident, nor did he raise this possible explanation with Mr. Krol prior to his termination. See Id. ¶¶ 10, 17. Moreover, Plaintiff indicated that on December 3, 2012, he was not aware that he had a seizure. Donovan Dep. 18:14-18; EEO Docs. at 11.


Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record - including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence - in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. ...

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