United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge
On September 18, 2015, the Court granted in part and denied in part Defendants’ motion for summary judgment in this employment-discrimination action against the Metropolitan Council of Governments (“COG”) and three of its executives. See Uzoukwu v. Metro. Wash. COG, 2015 WL 5541578 (D.D.C. Sept. 18, 2015) (Mem. Op., ECF No. 90). In that opinion, the Court reviewed Defendants’ challenges to the following counts in Plaintiff Chinyere Uzoukwu’s Amended Complaint: hostile work environment based on ethnicity in violation of 42 U.S.C. § 1981 by Calvin Smith, the former director of the department in which Uzoukwu worked (Count I); retaliation in violation of 42 U.S.C. § 1981 by Smith (Count II); retaliation in violation of 42 U.S.C. § 1981 by Paul DesJardin, Uzoukwu’s supervisor, and Imelda Roberts, COG’s Director of Human Resources (Count VI); hostile work environment and disparate treatment based on ethnicity in violation of 42 U.S.C. § 1981 by COG itself (Count IX); and retaliation in violation of 42 U.S.C. § 1981 by COG (Count X).
The Court found that Uzoukwu had proffered sufficient evidence to present her disparate treatment claim against COG (part of Count IX) and retaliation claims (Counts II, VI, and X) to a jury, but that she had not sufficiently made out a claim for hostile work environment (the other part of Count IX). See Mem. Op., ECF 90. Defendants now move for clarification and reconsideration of that ruling. They seek clarification on which claims survive against which individual defendants, and they urge the Court to conclude that Uzoukwu has failed to make out her disparate treatment claim and her retaliation claims against COG and individual Defendants Smith and Roberts.
The Court will grant in part and deny in part the motion for reconsideration. It concludes that Uzoukwu has presented sufficient evidence for her retaliation claim against COG to survive summary judgment, but that she has not made out a disparate treatment claim against COG or retaliation claims against Smith or Roberts in their individual capacities.
I. Retaliation Claim Against Smith
Uzoukwu alleges that she was terminated in retaliation for having complained of discrimination. See Pl.’s Opp’n Defs.’ Mot. Clarification & Recons. 4 (noting that “each of the remaining counts” in her Amended Complaint identified “terminat[ion]” and “loss of employment” as the discriminatory and retaliatory adverse action she suffered (quoting Am. Compl., ECF No. 52 ¶¶ 109, 136, 158, 163)). In their motion for reconsideration, Defendants emphasize that Smith was no longer employed at COG at the time of the termination; he retired in January 2008, and Uzoukwu was terminated in March 2008. They also note that Uzoukwu has not alleged that Smith participated in the termination decision.
While Title VII of the Civil Rights Act of 1964, the usual vehicle for federal employment-discrimination claims, “does not impose individual liability on supervisory employees, ” Gary v. Long, 59 F.3d 1391, 1400 (D.C. Cir. 1995), the statute under which Uzoukwu brings her claims, 42 U.S.C. § 1981, can impose such liability “for personal involvement in discriminatory activity” that violates that section, Brown v. Children’s Nat’l Med. Ctr., 773 F.Supp.2d 125, 136 (D.D.C. 2011) (quoting Zaidi v. Amerada Hess Corp., 723 F.Supp.2d 506, 516-17 (E.D.N.Y. 2010)). The D.C. Circuit has not articulated a test for individual liability under § 1981, but the Court is persuaded by the Seventh Circuit’s formulation and application of the standard in Smith v. Bray, 681 F.3d 888 (7th Cir. 2012), a case with a number of factual parallels to this one.
Smith involved a claim of retaliation in violation of § 1981 by a human resources manager. Because the plaintiff brought a claim of individual liability, the court concluded that he had to show that the manager (1) “participated in the decision to fire him, ” and (2) “was motivated by a desire to retaliate against him for his complaints of . . . discrimination.” Id. at 892. The Second Circuit has similarly emphasized that “[p]ersonal liability under section 1981 must be predicated on the actor’s personal involvement” in the claimed violation, Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)) (internal quotation mark omitted); that the retaliation must have been “intentional, ” id. at 226; and that there must have been “some affirmative link to causally connect the actor with the [retaliatory] action, ” id. at 229.
In Smith, the Court held that the plaintiff failed to establish individual liability because, although he demonstrated that the human resources manager participated in the decision to terminate his employment, he failed to show that she was personally motivated by retaliatory animus. The human resources manager had received complaints of harassment from the plaintiff without investigating them, had occasionally refused to speak with the plaintiff, had met with the deciding official in the lead-up to the plaintiff’s termination, and had prepared the plaintiff’s termination report. See Smith, 681 F.3d at 893, 895, 900. Against those facts, the Court determined that her participation in the termination decision was sufficiently established, but that, without more evidence that her “personal motives included retaliation, ” the plaintiff had failed to demonstrate retaliatory animus. Id. at 901.
Here, the reverse circumstances compel the conclusion that Uzoukwu has failed to establish individual liability as to Smith. While she alleges facts that might support a finding of retaliatory animus,  she does not dispute that Smith left the organization before she was terminated, nor does she allege that he participated in the decision after leaving. Under the Seventh and Second Circuits’ formulations, then, Uzoukwu has not sufficiently predicated liability as to Smith on his “personal involvement” in the alleged adverse action. Patterson, 375 F.3d at 229; see also Smith, 681 F.3d at 892. Therefore, the Court will grant Defendants’ motion for reconsideration as to this claim, as it cannot survive summary judgment.
II. Retaliation Claim Against Roberts
Uzoukwu’s claim against Roberts, COG’s human resources director, fails for the same reasons as did the claim in Smith. Uzoukwu has demonstrated Roberts’s involvement in the termination decision, but she has not established personal retaliatory animus. She points to deposition testimony of David Robertson, COG’s Executive Director and the deciding official for Uzoukwu’s termination. Robertson testified that, “working with Mr. DesJardin and Imelda Roberts, ” he decided to eliminate Uzoukwu’s position. Pl.’s Opp’n Mot. Summ. J., Ex. 15, at 31. In addition, he described having sought Roberts’s “perspective or recommendations, ” id., and having solicited her input on the termination memo, id. at 33. As in Smith, where the human resources manager had consulted with the deciding official prior to the termination and helped to prepare the termination document, this evidence is sufficient to establish Roberts’s involvement in the termination process.
But also like the plaintiff in Smith, Uzoukwu has not put forward evidence sufficient to demonstrate retaliatory motivation as to Roberts. Although the plaintiff in Smith showed that he had complained of discriminatory treatment by his supervisor and that the human resources manager was aware of those complaints, he failed to show that those complaints motivated her decision to recommend his termination. Rather, he demonstrated only that she had failed to investigate his complaints against the supervisor and other employees, that she had refused to speak with him on occasion, and that his termination came soon after his complaints. See 681 F.3d at 901. Without more, these facts were insufficient “to present a genuine issue of fact as to whether [the manager’s] personal motives included retaliation.” Id. The same is true here. Uzoukwu has alleged only that she complained to Roberts of her low performance evaluation and reduction of responsibilities, Pl.’s Opp’n Mot. Summ. J. 6; id. Ex. 4, at 87-90; id. Ex. 9; that Roberts was aware of her complaints made directly to Smith and DesJardin, see id. Ex. 11; that Roberts took no action following her complaint about a joke she overheard a former employee making that she “ha[d] the right name, but . . . the wrong color, ” see id. Ex. 4, at 135-40; and that Roberts did not handle another complaint about a fellow employee as effectively as she could have, see id. Ex. 4, at 182-84. Even if true, these facts suggest no more than that Roberts was ...