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Conn. v. American National Red Cross

United States District Court, D. Columbia.

February 25, 2016

CATHY CONN, Plaintiff,
v.
AMERICAN NATIONAL RED CROSS, Defendant

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[Copyrighted Material Omitted]

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          For CATHY CONN, Plaintiff: Ross Andrew Nabatoff, LQAW OFFICE OF ROSS A. NABATOFF, Washington, DC.

         For AMERICAN NATIONAL RED CROSS, Defendant: Jeffrey W. Larroca, Michael A. Graziano, LEAD ATTORNEYS, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Washington, DC.

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         MEMORANDUM OPINION

         CHRISTOPHER R. COOPER, United States District Judge.

         Cathy Conn. was warned for undermining the leadership of her newly installed supervisor at the American Red Cross, and then terminated several months later for failing to heed the warning and several other purported transgressions. Believing she was actually fired because of her age and disability--she was 59 years old and suffered from depression, anxiety, and insomnia at the time--Conn filed this suit. Before the Court are three motions by the Red Cross: a motion for summary judgment on all aspects of liability; a motion for summary judgment on certain issues of damages; and, should the Court deny summary judgment on liability, a motion for a bench trial on the ground that the Red Cross's status as a federally chartered instrumentality immunizes it from trial by jury.

         Finding that Conn. has offered sufficient evidence to support a finding that the Red Cross's proffered reasons for her termination were pretexts for age and disability discrimination, the Court will deny the Red Cross's summary judgment motion on Conn's claims under the federal Age Discrimination in Employment Act (" ADEA" ) and the Americans with Disabilities Act (" ADA" ). But because Conn. has failed to establish that any conduct surrounding her termination occurred in the nation's capital, it will grant summary judgment in favor of the Red Cross on Conn's claims under the District of Columbia Human Rights Act.

         As for damages, the Court agrees with the Red Cross that any back-pay Conn. is awarded should be reduced by the income she received from an ancillary business, and that Conn. is not entitled to recover pension benefits accruing after the Red Cross's retirement system closed on December 31, 2012, lost interest income, life-insurance benefits, or living expenses above and beyond any award of back-pay. The Court will therefore grant summary judgment to the Red Cross on those damages issues. A genuine issue of material fact exists, however, as to whether Conn. mitigated her damages by making the required good-faith effort to obtain substitute employment after she was terminated, and the Court agrees with Conn. that it has the authority to award back-pay without offsetting that amount with unemployment-insurance benefits. The Court will thus deny summary judgment to the Red Cross on those issues.

         Finally, the Court reserves judgment and will issue a separate opinion as to the following issues: (1) whether Congress has waived the Red Cross's sovereign immunity with respect to punitive damages under the ADA and liquidated damages under the ADEA, and (2) whether Congress has

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waived the Red Cross's sovereign immunity with respect to jury trials under both statutes. It will therefore defer ruling on the remainder of the Red Cross's motion for partial summary judgment on damages and on its motion for a bench trial.

         I. Background

         Cathy Conn. worked for the Red Cross for over ten years, primarily as a director of the audit department responsible for ensuring that the Red Cross's blood bank and blood-testing facilities comply with federal regulations. See Def.'s Mem. Supp. Mot. Summ. J. Liability (" MSJL" ) 2. Conn. supervised between eight and fourteen auditors. Id. In August 2011, the Red Cross created the position of chief compliance officer to oversee Conn's department, and hired Thomas Manor for the job. Id. at 2-3. Things did not go smoothly. Both sides agree that Conn. " had issues with Manor's management style." Pl.'s Opp'n Def.'s MSJL 5; Def.'s Mem. Supp. MSJL 3. But while Conn. claims she was a team player, the Red Cross insists that she openly resisted Manor's authority from the beginning. In either event, the relationship between the two soured in September 2011, only a month or so after Manor arrived, following a presentation by Manor to the auditing staff outlining his vision for the department. Def.'s Mem. Supp. MSJL 4-6. According to Conn, multiple members of the staff voiced concerns about what they perceived as inaccuracies in the presentation slides. Pl.'s Opp'n Def.'s MSJL 7. In response to these concerns, Conn. sent a " confidential" email to all of the auditors--without copying Manor--advising them to take certain of the slides " with a grain of salt" and clarifying that she " had no input" on the presentation. Def.'s Mem. Supp. MSJL 5. When Manor became aware of the email and asked Conn. about the staff's reaction to the presentation, Conn. conveyed their concerns but failed to mention having sent the email. Id. at 5-6.

         Following this incident, on September 30, 2011, Manor issued Conn. a " final written warning" letter for " undermining [his] leadership." Def.'s MSJL Ex. 9. Manor wrote that Conn's all-staff email exhibited " a lack of support" and raised questions about her management abilities, as well as her " ethics and integrity." Id. Manor admonished Conn. to conduct herself professionally and with an " absence of negativity" and directed her to, among other things, " copy me on your all staff communication" and " invite me to all staff meetings." Id.

         The next business day, Conn. notified Manor in an email that she had " been under a psychiatrist's care for the past 6 years due to job related stress and anxiety" and that the final written warning had " exacerbated [her] condition to the point where" she was " heavily medicated and not able to travel or work." Id. Ex. 13. Conn. subsequently applied for approximately five weeks of leave under the Family and Medical Leave Act (" FMLA" ) due to " poor focus, distract[ibility], [and] anxiety." Id. Ex. 14. On her application, which was approved and signed on Manor's behalf by another employee, Conn. indicated that she had " a serious health condition that makes me unable to perform the essential functions of my job." Pl.'s Opp'n Def.'s MSJL Ex. G. Conn. claims that after she returned from leave, in November 2011, Manor proceeded to " strip[] [her] of her original job functions," Pl.'s Opp'n Def.'s MSJL 9, and " informed other employees that she would slow them down," id. at 3.

         On January 16, 2012, Conn. emailed Manor and her co-director in the auditing department, Winnie Dimmick, concerning Kristine Bevan, Manor's executive assistant. Complaining about Bevan's interactions

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with the auditing staff, Conn. wrote that " [Kristine] has insulted Winnie and [me] on multiple occasions. Perhaps a final written warning letter is warranted since her letter is undermining your leadership with the staff?!" Def.'s Mem. Supp. MSJL Ex. 17.

         Three days after this incident, on January 19, 2012, Manor prepared a memorandum requesting approval to terminate Conn. Id. Ex. 16. In the memorandum, Manor offered four reasons in support of his termination request: (1) the January 16 email about Kristine Bevan, which Manor took to be a violation of his admonition in Conn's final written warning to act professionally and with an " absence of negativity" ; (2) Conn's failure to copy him on all of her email communications to her staff; (3) her failure to accurately complete the processing of retirement paperwork for another employee, which Manor had asked her to do; and (4) Conn's distribution of multiple incorrect versions of a document discussing department goals. Def.'s Mem. Supp. MSJL Ex. 15. The Red Cross's Human Resources Director approved Conn's termination, which took effect on January 20, 2012.

         Conn then timely filed a charge of discrimination with the Equal Employment Opportunity Commission on March 19, 2012, was issued a right-to-sue letter by the agency on August 22, 2013, and filed suit in this Court on November 19, 2013. Compl. 2; id. Exs. 1, 2. The Court held a hearing on the Red Cross's summary judgment motions on December 14, 2015.

         II. Standard of Review

         Summary judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the burden to demonstrate the " absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To overcome a motion for summary judgment, the non-moving party must " designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). A dispute is genuine only if a reasonable fact-finder could find for the non-moving party; a fact is material only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Laningham v. U.S. Dep't of Navy, 813 F.2d 1236, 1241, 259 U.S.App.D.C. 115 (D.C. Cir. 1987). In assessing a party's motion, a court must " view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alteration in original) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)).

         III. Analysis

         The Red Cross has filed a motion for summary judgment on liability as to all of Conn's claims, which she brings under the ADEA, the ADA, and the DCHRA; a motion for partial summary judgment on damages, which addresses Conn's mitigation of salary- and benefits-related damages, the availability of punitive damages under the ADA and liquidated damages under the ADEA, the availability of compensatory and punitive damages under the ADEA, and Conn's living expenses; and a motion for a bench trial. The Court will address the liability and most of the damages issues but reserve judgment on the

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availability of punitive damages under the ADA and liquidated damages under the ADEA, as well as Conn's right to a jury trial against the Red Cross, until a later date.

         A. Motion for Summary Judgment on Liability

         The Age Discrimination in Employment Act (" ADEA" ) prohibits employers from " discharg[ing] an[] individual . . . because of such individual's age." 29 U.S.C. § 623. Similarly, the Americans with Disabilities Act (" ADA" ) prohibits employers from discharging " a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). Conn. charges the Red Cross with violations of both of these acts.[1] To succeed on her ADEA claim, Conn. ultimately " must prove that age was the 'but-for' cause of [her] employer's adverse decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Although the D.C. Circuit has not spoken directly to the issue, other circuit courts to have considered the issue in light of Gross have concluded that both the ADEA and the ADA " prohibit discrimination that is a 'but-for cause of the employer's adverse decision.' The same standard applies to both laws." Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012) (en banc) (quoting Gross, 557 U.S. at 176); see also Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010) (" [A] plaintiff complaining of discriminatory discharge under the ADA must show that his or her employer would not have fired him but for his actual or perceived disability; proof of mixed motives will not suffice." ). This Court will apply " the same standard . . . to both laws." Lewis, 681 F.3d at 321. But see Drasek v. Burwell, No. 13-CV-0847 (KBJ), 121 F.Supp.3d 143, 2015 WL 4910499, at *7 (D.D.C. Aug. 17, 2015) (holding that " a [disability] discrimination . . . claim brought under the ADA can rest on a 'motivating factor' causation analysis--meaning that the claim can be sustained if discriminatory animus is merely one of several factors that precipitated the adverse employment action" ).

         Courts analyze both statutes under the familiar McDonnell-Douglas framework, which first requires the plaintiff to make out a prima facie case of discrimination. Hall v. Giant Food, Inc., 175 F.3d 1074, 1077, 336 U.S.App.D.C. 63 (D.C. Cir. 1999); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288, 332 U.S.App.D.C. 256 (D.C. Cir. 1998). In the age-discrimination context, making out a prima facie case entails " show[ing] that [the plaintiff] belongs in the statutorily protected age group, [s]he was qualified for the position, [s]he was terminated, and [s]he was disadvantaged in favor of a younger person." Hall, 175 F.3d at 1077. As relevant here, in the disability-discrimination context, an employee makes out a prima facie case in a similar way, but puts forward evidence showing that she is disabled under the ADA--meaning that she has " a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(1)(A). After the plaintiff makes out her prima facie case, the burden then switches to the defendant to show that there was a lawful reason for

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the employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the defendant does so, then the question on summary judgment becomes whether, based on the totality of the parties' evidence, a reasonable jury could determine that the defendant's proffered explanation was pretext for discrimination.[2] Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494-95, 380 U.S.App.D.C. 283 (D.C. Cir. 2008). In other words,

[T]he focus of proceedings at trial (and at summary judgment) [should] be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff . . . .

Aka, 156 F.3d at 1289. Where, as here, " an employer offers 'clear and reasonably specific' nondiscriminatory reasons for the adverse employment action," Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137, 144, 383 U.S.App.D.C. 331 (D.C. Cir. 2008) (quoting Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), " the court need not decide whether the plaintiff has made out a prima facie case, and [should] 'proceed [directly] to the ultimate question of discrimination vel non,'" id. (quoting George v. Leavitt, 407 F.3d 405, 411, 366 U.S.App.D.C. 11 (D.C. Cir. 2005)).

         1. The Red Cross's Proffered Reasons for Terminating Conn

         Applying McDonnell-Douglas's burden-shifting framework, the Court makes two determinations: whether the Red Cross's proffered reasons for Conn's termination are legitimate and non-discriminatory, and, if they are, whether Conn. has produced sufficient evidence for a reasonable jury to conclude that those legitimate reasons were in fact pretexts for discrimination. In undertaking this inquiry, the Court is mindful that " there are 'instances where, although the plaintiff has . . . set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.'" Giles, 794 F.3d at 9 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). In such situations, summary judgment for the defendant would be proper. See id.

         The Red Cross maintains that its decision to terminate Conn. is amply supported by the four reasons cited in Manor's termination memorandum. First, the Red Cross points to Conn's email to Manor complaining about Kristine Bevan, Manor's executive assistant, in which Conn. wrote, " Perhaps a final written warning letter is warranted since her letter is ...


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