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Berry v. Coastal International Security, Inc.

United States District Court, District of Columbia

March 15, 2016



AMY BERMAN JACKSON United States District Judge

Plaintiff Theodore Berry brought this employment discrimination action against defendant Coastal International Security, Inc. (“CIS”), alleging that defendant discriminated against him based on his national origin (African American) and his age, in violation of Title VII of the Civil Rights of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff also claims that defendant retaliated against him in violation of the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq., Title VII, and the ADEA by suspending, transferring, and demoting him after he complained about the alleged discrimination. See 2d Am. Compl. [Dkt. # 58] ¶¶ 33-128. Defendant moved for summary judgment on the original complaint, and it supplemented its motion after the Court granted plaintiff’s motion for leave to file a second amended complaint. Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [Dkt. # 38]; Def.’s Suppl. Mot. for Summ. J. [Dkt. # 61] (“Def.’s Suppl. Mot.”); Def.’s Mem. of P. & A. in Supp. of Def.’s Suppl. Mot. [Dkt. # 61-1] (“Def.’s Suppl. Mem.”). In response, plaintiff has attempted to show that CIS employed its disciplinary process unfairly. But the Court concludes that plaintiff has been unable to come forward with evidence to rebut the defendant’s legitimate non-discriminatory reasons for its employment decisions - that plaintiff repeatedly violated CIS’s rules and procedures and acted unprofessionally. And with respect to retaliation, plaintiff cannot show the necessary causal connection between the filing of his original age discrimination complaint and his ultimate suspension, transfer, and demotion.

Throughout the pendency of this case, the Court has given plaintiff the benefit of every doubt and afforded him opportunities to add allegations to his complaint, to undertake long-overdue discovery even after the time for discovery had closed, and to supplement his opposition to the motion for summary judgment to bring it into compliance with the federal and local rules governing civil litigation. Plaintiff clearly feels aggrieved, and he has been emphatic in advancing his point of view that he was treated unfairly. But we are no longer at the pleading stage, and at this juncture, in the face of defendant’s motion for summary judgment, the onus is on the plaintiff to point to proven fact - evidence in the record - that supports his claims. Notwithstanding the amount of time he has had to do that - including a considerable period of time when he was represented by counsel - he has failed to marshal the necessary evidence. For those reasons, the Court will grant defendant’s motion.


I. Procedural History

Plaintiff filed a complaint in Superior Court on July 13, 2012, alleging age discrimination and retaliation in violation of the District of Columbia Human Rights Act, D.C. Stat. § 14-201.11. Superior Ct. Compl. [Dkt. # 1-2]. Plaintiff was represented by counsel at that time. Defendant removed the action to this Court on August 27, 2012, and moved to dismiss the complaint on the grounds that plaintiff’s employment with the defendant was covered by a collective bargaining agreement, and the claims were pre-empted by the Labor Management Relations Act, 29 U.S.C. § 185. See Notice of Removal [Dkt. # 1]; Def.’s Mot. to Dismiss [Dkt. # 2]. On September 11, 2013, the Court granted defendant’s motion as to the age discrimination claim, finding that the claim was founded upon rights created by the agreement and therefore completely pre-empted. See Order (Sept. 11, 2013) [Dkt. # 6]; Mem. Op. (Sept. 11, 2013) [Dkt. # 7]. But the Court denied the motion to dismiss the retaliation claim because it found that the rights plaintiff sought to vindicate in that count were independent of the collective bargaining agreement. See id.

When the Court asked the parties to address whether it should continue to exercise jurisdiction over the remaining state law count, plaintiff advised the Court that he intended to amend the complaint to add federal claims, and the Court gave plaintiff until October 24, 2013 to file a motion for leave to amend. See Min. Order (Oct. 10, 2013).

But before that motion was filed, the parties agreed to stay the case while plaintiff awaited receipt of a Notice to Sue letter from the EEOC. Pl.’s Mot. to Stay [Dkt. # 12]. When the stay was lifted, plaintiff filed an amended complaint with defendant’s consent. See Min. Order (Nov. 20, 2013); Am. Compl. [Dkt. # 16]. The Amended Complaint asserted retaliation claims under the DCHRA, and added claims of age and national origin discrimination under Title VII and the ADEA. Am. Compl. ¶¶ 88-113. Defendant answered that complaint, and after an initial scheduling conference was held on February 3, 2014, the case moved into the discovery phase. Answer [Dkt. # 17].[1]

In July of 2014, plaintiff’s attorney moved to withdraw. Mot. to Withdraw/Strike Appearance [Dkt. # 30]. The Court then granted plaintiff, proceeding pro se, two extensions to complete discovery. Min. Order (Aug. 14, 2014); Min. Order (Dec. 24, 2014).

During discovery, after the Court resolved a discovery dispute, see Min. Order (Nov. 14, 2014), plaintiff moved for reconsideration of the Court’s ruling. Mot. for Recons. [Dkt. # 35]. As part of that motion, plaintiff alerted the Court to a “new development” in the case: the D.C. Office of Human Rights had recently dismissed plaintiff’s second EEO complaint. Id. at 1. The Court denied plaintiff’s motion for reconsideration, but noted that “in light of all the circumstances, ” plaintiff would be permitted to file a motion for leave to amend his complaint. Order (Jan. 5, 2015) [Dkt. # 41].

In the interim, defendant filed its motion for summary judgment on the pending claims, Def.’s Mot., and defendant, still pro se, responded on January 28, 2015. Pl.’s Resp. in Opp. to Def.’s Mot. [Dkt. # 43]. Plaintiff also filed a motion for leave to amend the complaint, and, in light of that motion, the Court stayed the remaining briefing deadlines. Pl.’s Mot. for Leave to File Am. Compl. [Dkt. # 42]; Min. Order (Feb. 9, 2015).

On June 3, 2015, plaintiff secured new counsel who remained in the case thereafter. Notice of Appearance [Dkt. # 46]. On July 24, 2015, the Court granted in part and denied in part the motion for leave to amend, permitting the plaintiff to add certain allegations but not others. See Mem. Op. & Order (July 24, 2015) [Dkt. # 49]. Plaintiff was authorized to undertake discovery on the new claims, and he was directed to file a revised version of the second amended complaint that comported with the Memorandum Opinion and Order. Id; see also Order (Aug. 17, 2015) [Dkt. # 53]; Min. Order (Oct. 22, 2015) (granting in part and denying in part plaintiff’s Motion for Extension of Time To Complete Discovery); and Min. Order (Oct. 29, 2015) (granting plaintiff’s Motion for Leave to File Deposition Notices).

After several unsuccessful efforts, plaintiff eventually filed a Second Amended Complaint that conformed to the Court’s Order. 2d Am. Compl. [Dkt. # 58].[2] The complaint includes six counts: the age discrimination count that was previously dismissed (Count I); retaliation in violation of the DCHRA (Count II); national origin discrimination in violation of Title VII (Count III); retaliation in violation of the ADA (Count IV); age discrimination in violation of the ADEA (Count V); and retaliation in violation of Title VII. 2d Am. Compl. ¶¶ 94-128. After discovery was finally complete, the Court established a schedule resuming the briefing on defendant’s originally filed motion for summary judgment, as well as its supplemental motion seeking judgment on the new claims, which had been filed on October 16, 2015. The Court specifically directed the parties’ attention to Local Civil Rule 7(h)(1) and the scheduling order in the case which detailed the requirements for an opposition to a motion for summary judgment. See Min. Order (Oct. 29, 2015), citing Scheduling Order (Feb. 3, 2014) [Dkt. # 21].

On December 18, 2015, the day when plaintiff’s combined opposition to the motions was due, plaintiff filed nothing more than a motion to strike the declaration of plaintiff’s attorney, Ms. Henninger. See Pl.’s Mot. to Strike [Dkt. # 64]. The Court denied the motion and reminded the plaintiff that he had yet to oppose defendant’s supplemental motion or to comply with Local Rule 7(h)(1) in connection with either of defendant’s motions. It warned:

If plaintiff fails to oppose the supplemental motion, the Court will treat the motion as conceded. See LCvR 7(b). If plaintiff fails to file a statement of material facts in accord with Local Civil Rule 7(h)(1), the Court will treat the facts in defendant's motions as admitted. See LCvR 7(h)(1). In an exercise of the Court's discretion, it is hereby ORDERED that any statement of genuine issues of fact pursuant to Local Rule 7(h)(1) and any opposition to defendant's supplemental motion for summary judgment (which may be consolidated with an opposition to the original summary judgment motion) must be filed no later than January 8, 2016.

Min. Order (Dec. 21, 2015).

Plaintiff filed his opposition to defendant’s motion on December 21, 2015 which included a factual recitation entitled “Summary of Undisputed Facts, ” but lacked any statement identifying genuine issues of material fact pursuant to Local Rule 7(h). Pl.’s Opp. to Def.’s Mot. for Summ. J. [Dkt. # 65] (“Pl.’s Opp.”); Pl.’s Summary of Undisputed Facts [Dkt. # 65] (“Pl.’s SOF”). What was appended to the opposition was plaintiff’s declaration, which appeared to be just a draft and contained few, if any, citations to record evidence. See Decl. of Theodore W. Berry [Dkt. # 65-1]. The Statement of Undisputed Facts was also largely devoid of citations to materials in the record. Plaintiff filed no excerpts of depositions or exhibits with his pleading, and the Court ordered him to file a final version of the declaration as well as any record materials upon which he intended to rely, by January 11. See Min. Order (Jan. 6, 2016).

On January 11, 2016, plaintiff filed two more pleadings: another version of his opposition to plaintiff’s first motion for summary judgment, See Pl.’s Opp. to Def.’s Suppl. Mot. [Dkt. # 67] (“Pl.’s 2d Opp.”); and an opposition to the supplemental motion. Pl.’s Opp. to Def.’s Suppl. Mot. [Dkt. 68-10] (“Pl.’s 3d Opp.”). Those pleadings again included plaintiff’s own recitations of the facts, see Pl.’s Statement of Genuine Issues of Fact in Supp. of His Opp. to Def.’s Mot. [Dkt. # 67-7] (“Pl.’s 2d SOF”); Pl.’s Statement of Genuine Facts in Opp. to Def.’s Suppl. Mot. [Dkt. # 68] (“Pl.’s Supp. SOF”), but they lacked the statement responsive to the defendant’s Statement of Facts required by the Local Rules. Plaintiff also failed to replace the draft declaration as the Court had ordered.[3] Pl.’s 2d SOF; Pl.’s Statement of Genuine Facts in Opp. to Def.’s Suppl. Mot. [Dkt. # 68] (“Pl.’s 3d SOF”).

Defendant filed a reply in support of its motion on January 19, 2016. Def.’s Reply Mem. in Further Supp. of Def.’s. Mot. [Dkt. 69] (“Def.’s Reply”).[4]

II. Factual Background

In the absence of a statement by plaintiff “setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, ” Local Civil Rule 7(h)(1), and pursuant to Fed.R.Civ.P. 56(c) (“[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .”), the Court relies primarily on defendant’s statement of undisputed facts. Plaintiff’s allegations to the contrary will also be set forth where relevant.

Plaintiff was born in 1951, and he identifies his national origin as “American.” Pl.’s Dep., Ex. A. to Decl. of S. Libby Henninger [Dkt. # 38-4] (“Pl.’s Dep.”) at 28. He was hired as a security officer at CIS in 1998. Id. at 33-34, 36. CIS is a private security company that contracts with various federal government agencies, and it provides armed security services at the Ronald Reagan Building and International Trade Center (“RRB”). Def.’s Statement of Undisputed Facts in Supp. of Def.’s Mot. [Dkt. # 61-2] (“Def.’s SOF”) ¶ 1.

Security officers working for CIS at the RRB belong to a union, and the terms and conditions of their employment are governed by a collective bargaining agreement (“CBA”). Pl.’s Dep. at 36-38; Ex. B to Henninger Decl. [Dkt. # 38-4] (attaching relevant portions of the CBA). The CBA includes a provision detailing a system of progressive discipline for misconduct by security officers, but it also provides that CIS reserves the right to skip any step of the progressive discipline process, depending on the severity of the misconduct. Ex. B to Henninger Decl. at § 7.1-7.5.

A. Plaintiff’s protected activity

Around January 26, 2011, plaintiff submitted a complaint to Regional Manager Frank Duran related to a prior disciplinary action he had received from another manager. Pl.’s Dep. at 72-76; Ex. D to Henninger Decl. [Dkt. # 38-4] (complaint). That complaint made reference to concerns of “nepotism and cronyism” with regards to the ...

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