United States District Court, D. Columbia.
[Copyrighted Material Omitted]
CATHY CONN, Plaintiff: Ross Andrew Nabatoff, LQAW OFFICE OF
ROSS A. NABATOFF, Washington, DC.
AMERICAN NATIONAL RED CROSS, Defendant: Jeffrey W. Larroca,
Michael A. Graziano, LEAD ATTORNEYS, ECKERT SEAMANS CHERIN &
MELLOTT, LLC, Washington, DC.
R. COOPER, United States District Judge.
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
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.
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.
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
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
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.
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.
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.
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
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.
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
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.
Standard of Review
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
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
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.
Motion for Summary Judgment on Liability
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. 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"
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
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. 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)).
The Red Cross's Proffered Reasons for Terminating
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.
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 ...