United States District Court, District of Columbia
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE
Karen Brandli brought this sex discrimination suit against
her former employer, Micrus Endovascular Corporation
(“Micrus”), Johnson & Johnson Services, Inc.
(“JJSI”), Codman & Shurtleff, Inc.
(“Codman”), and James Bertrand. Brandli was a
Micrus employee under Bertrand's supervision until 2010
when JJSI acquired Micrus and merged it with Codman, a
business JJSI owned. In the process, Micrus terminated
Brandli's employment. Defendants have collectively moved
for summary judgment on the grounds that they had legitimate,
nondiscriminatory reasons for not retaining Brandli and that
Brandli failed to produce evidence that these reasons are a
pretext for discrimination on the basis of sex. The Court
heard oral argument on this motion on June 15, 2016. Upon
careful consideration of the parties' written and oral
arguments, the entire record in this case, and the relevant
statutes and case law, the Court will grant defendants'
Brandli began working for Micrus as an account manager in
2006, selling neurosurgery devices in Washington, D.C.,
Northern Virginia, Maryland, and West Virginia. Am. Compl.
¶ 25; Defs. SMF ¶¶ 1-3. Brandli's sales
quota for Micrus's fiscal year 2007 was $995, 000, a
quota she substantially exceeded by selling approximately
$2.4 million dollars worth of Micrus products during that
period. Am. Compl. ¶ 32. As a result, Micrus nominated
her for its “Sales Rep of the Year” and
“Rookie of the Year” awards. Id. ¶
33. In April 2007, Micrus removed Virginia and West Virginia
from Brandli's territory and gave them to a new sales
representative, Steve Tripp. Id. ¶ 36. In 2007,
Micrus released the director of sales who had hired Brandli
and replaced him with James Bertrand. Id. ¶ 37.
reassigned Brandli in 2008 from the northeast region sales
territory to the southeast region sales territory. Defs. SMF
¶ 4. At that time, Brandli complained to her regional
manager that she believed Bertrand was attempting to force
her out of her sales territory. Am. Compl. ¶ 39. The
regional manager mentioned to Brandli that Bertrand had been
“throwing around” the notion of assigning Brandli
to the sales training division, an assignment that would have
deprived Brandli of the opportunity to earn commissions.
Id. ¶¶ 38-40. Brandli alleges that during
a conference call in 2008 Bertrand stated that he was going
to “get rid of” her, and that another manager
advised Bertrand not to “do anything more with women
right now, because we may have an issue.” Id.
¶¶ 55-56. Bertrand denies making both statements,
and two managers who were present for the conference call
confirmed in deposition testimony that Bertrand did not say
that he was going to “get rid of” Brandli. Defs.
SMF ¶ 32.
2009, Brandli acquired a new account, Chistiana Hospital, and
earned for Micrus the majority of Chistiana Hospital's
medical coil device business. Am. Compl. ¶ 59. As a
result, Micrus awarded her “President's Club”
status and ranked her as the number three sales
representative in North America. Id. ¶ 60;
see also Opp. Ex. 22 [Dkt. 33-32]. Bertrand's
predecessor conducted a field visit with Brandli in 2009 and
wrote an “excellent review and praised her sales
efforts, product knowledge, and relationship with
clients.” Opp. at 4; see also Opp. Ex. 21
[Dkt. 33-31]. Her strong performance continued in 2010 when
she reached 96% of her yearly quota by April. Am. Compl.
¶ 61. But in 2009 Brandli received a rating of
“meets expectation” as opposed to the higher
rating of “exceeds expectation, ” and defendants
assert that Brandli's supervisor received customer
complaints that Brandli was “abrasive.” Defs. SMF
¶ 13. Micrus never placed Brandli on a performance
improvement plan (“PIP”), a measure that is
commonly taken when a sales employee performs below
expectations. Opp. at 4.
2010, JJSI publicly announced its intention to acquire
Micrus. Am. Compl. ¶ 64. JJSI owned Codman, one of
Micrus's competitors, and JJSI intended to run Micrus as
one of Codman's business units. Id. ¶ 62;
Defs. SMF ¶¶ 5-6. Codman anticipated that there
would be overlap in the post-acquisition sales territories,
which meant that Codman planned to terminate some sales
representatives from the post-acquisition entity. Defs. SMF
¶ 7. On September 29, 2010, Codman informed Brandli that
defendants would terminate her employment effective October
31, 2010. Am. Compl. ¶ 71. Defendants thereafter gave
sales responsibilities in Brandli's territory to two male
Codman sales representatives, Daniel Garrison and Christopher
Kearney. Id. ¶ 96; Defs. SMF ¶ 19.
filed this sex discrimination suit against the defendants in
2011, alleging that she was terminated on the basis of her
sex. Am. Compl. ¶ 2. She initially asserted five claims:
(1) against all defendants, a claim of discrimination on the
basis of sex in violation of the District of Columbia Human
Rights Act (“DCHRA”), D.C. Code §
2-1402.11(a)(1) (2012 Repl.); (2) against Bertrand, a claim
of aiding and abetting discrimination on the basis of sex in
violation of the DCHRA; (3) against JJSI and Codman, a
failure-to-hire claim that is also premised on discriminating
on the basis of sex in violation of the DCHRA; (4) against
all defendants except Bertrand, a common law negligent hiring
claim for the defendants' hiring of Bertrand; and (5)
against Bertrand, a common law tortious interference with
business expectations claim. Am. Compl. ¶¶ 100-70.
In her opposition to the motion for summary judgment, Brandli
stated that she was withdrawing Counts 4 and 5, the common
law claims. See Opp. at 1 n.1. In support of her sex
discrimination claims, Brandli alleges that defendants:
forced her out of her sales territory; forced out other
female employees and replaced them with males; required her
to prepare reports justifying her sales numbers; placed other
female sales representatives on PIPs; failed to select her
for a position on the Field Advisory Board; and praised only
male employees. Am. Compl. ¶ 105.
moved for summary judgment on each count of the amended
complaint. With respect to the sex discrimination claims,
they argue that: (1) they had a legitimate, nondiscriminatory
reason for terminating Brandli and that Brandli has not shown
that the reason is pretextual; (2) the Court cannot infer
discrimination because Garrison and Kearney had stronger
credentials than Brandli; (3) Brandli's failure-to-hire
DCHRA claim is not based on a tangible adverse employment
action and is untimely; and (4) if the underlying DCHRA claim
fails, the aiding-and-abetting claim against Bertrand must
also fail. Mot. at 12-26.
judgment is appropriate only 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
movant is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see Baumann v. District of Columbia, 795
F.3d 209, 215 (D.C. Cir. 2015); Fed.R.Civ.P. 56(a), (c). In
making that determination, the court must view the evidence
in the light most favorable to the nonmoving party and draw
all reasonable inferences in its favor. Baumann v.
District of Columbia, 795 F.3d at 215; see Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam);
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255;
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011). A disputed fact is “material” if it
“might affect the outcome of the suit under the
governing law.” Talavera v. Shah, 638 F.3d at
308 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. at 248). A dispute over a material fact is
“genuine” if it could lead a reasonable jury to
return a verdict in favor of the nonmoving party. See
Scott v. Harris, 550 U.S. 372, 380 (2007); Grimes v.
District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir.
2015); Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir.
2012). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge at summary
judgment. Thus, [the court] do[es] not determine the truth of
the matter, but instead decide[s] only whether there is a
genuine issue for trial.” Barnett v. PA Consulting
Group, Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting
Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.
Cir. 2010)); see also Tolan v. Cotton, 134
S.Ct. at 1866; Baumann v. Dist. of Columbia, 795
F.3d at 215; Allen v. Johnson, 795 F.3d 34, 38 (D.C.
Court will first review the legal framework for analyzing
Brandli's claim, placing special emphasis on
Brandli's chosen theory of defendants' liability
under the DCHRA, and then discuss whether Brandli's two
main pieces of evidence - statements of other female
employees and Codman's employee selection model - create
a genuine issue of material fact entitling her to a jury
trial on her claims.
McDonnell Douglas and Brandli's Cat's-Paw Theory of
VII prohibits discrimination by an employer against
“any individual” based on that individual's
“race, color, religion, sex, or national origin,
” 42 U.S.C. § 2000e-2(a), and the DCHRA contains a
similar provision. See D.C. Code §
2-1402.11(a). Brandli alleges that defendants discriminated
against her on the basis of her sex. “[F]ederal case
law addressing questions arising in Title VII cases is
applicable to the resolution of analogous issues raised
regarding DCHRA claims.” Ali v. District of
Columbia, 697 F.Supp.2d 88, 92 n.6 (D.D.C. 2010) (citing
Howard Univ. v. Green, 652 A.2d 41, 45 n.3 (D.C.
1994)); see also Whitbeck v. Vital Signs, Inc., 116
F.3d 588, 591 (D.C. Cir. 1997) (“District of Columbia
courts interpreting the DCHRA ‘have generally looked
[for guidance] to cases from the federal courts' arising
under federal civil rights statutes.” (quoting
Benefits Communication Corp. v. Klieforth, 642 A.2d
1299, 1301-02 (D.C. 1994))). “A plaintiff may prove her
Title VII discrimination or retaliation claim with direct
evidence, for example through a statement that itself shows
racial bias in the employment decision. Alternatively, a
plaintiff may base her claim on circumstantial evidence under
the familiar McDonnell Douglas burden-shifting
framework.” Nurriddin v. Bolden, 818 F.3d 751,
758 (D.C. Cir. 2016). Here, because Brandli offers no direct
evidence, the Court will analyze Brandli's DCHRA claims
under McDonnell Douglas Corp. v. Green, 411 U.S. 792
McDonnell Douglas burden-shifting framework contains
three steps. First, the burden is on the employee to make a
prima facie case of retaliation or discrimination.
411 U.S. at 801-02. Second, if the employee does so, the
burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for the challenged action.
Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir.
2016). Third, if the employer does so, the McDonnell
Douglas burden-shifting analysis “falls away,
” id., and “the district court must
resolve one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that the
employer's asserted non-discriminatory reason was not the
actual reason and that the employer intentionally
discriminated against the employee on the basis of
[sex]?” Brady v. Office of Sergeant at Arms,
520 F.3d 490, 494 (D.C. Cir. 2008); see also Gaujacq v.
EDF, Inc., 601 F.3d 565, 576 (D.C. Cir. 2010).
“The employee can survive summary judgment by providing
enough evidence for a reasonable jury to find that the
employer's proffered explanation was a pretext for
retaliation or discrimination.” Morris v.
McCarthy, 825 F.3d at 668; see also Nurriddin v.
Bolden, 818 F.3d at 758-59.
do not dispute that Brandli is a member of a protected class,
that she was qualified for her job, or that her termination
was an adverse employment action. They maintain, however,
that they had a legitimate, nondiscriminatory reason for
terminating her: JJSI could not afford to retain all of
Micrus's sales representatives when it merged Micrus with
Codman, and the two persons selected had higher assessment
scores than Brandli. Defs. SMF ¶¶ 7-8. It is
established that “terminat[ing an employee] as part of
the company's larger reorganization . . . constitute[s a]
legitimate, non-discriminatory reason[.]” Edmonds
v. Engility Corp., 82 F.Supp.3d 337, 341-42 (D.D.C.
2015), aff'd (Jan. 21, 2016); see also Gross
v. Logistics Support, Inc., 952 F.Supp.2d 119, 124
(D.D.C. 2013) (“implementing cost-cutting
measures” is a legitimate, nondiscriminatory reason for
an employer to terminate an employee). “[W]here an
employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason
for the decision, the district court need not - and
should not - decide whether the plaintiff actually made
out a prima facie case under McDonnell
Douglas.” Brady v. Office of Sergeant at
Arms, 520 F.3d at 494 (emphasis in original). The
question in this case therefore is whether, viewing the
evidence in the light most favorable to Brandli, her evidence
would allow a reasonable jury to conclude that JJSI's
proffered reason for terminating her was not the actual
reason for her termination and that defendants intentionally
discriminated against her on the basis of sex.
relies entirely on the so-called “cat's-paw”
theory of liability for her DCHRA claims. Opp. at 15, 17-21,
“Under that theory, the discriminatory animus of a
subordinate who recommends an adverse employment decision is
imputed to the selecting officer who relies on the
subordinate's recommendation.” McNally v.
Norton, 498 F.Supp.2d 167, 184 n.16 (D.D.C.
2007). As the D.C. Circuit recently explained:
“Under a cat's-paw theory of discrimination, an
employer may be held liable for discriminatory acts by a
direct supervisor - even where that supervisor is not the
final decision maker - if ‘ [the] supervisor
performs an act motivated by [discriminatory] animus  that
is intended by the supervisor to cause an adverse
employment action, and . . .  that act is a proximate
cause of the ultimate employment action.'”
Morris v. McCarthy, 825 F.3d at 668 (quoting
Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)
(internal citation omitted)) (emphasis in original); see
also Griffin v. Washington Convention Ctr., 142 F.3d
1308, 1311 (D.C. Cir. 1998); Furline v. Morrison,
953 A.2d 344, 355 (D.C. 2008).
Brandli's theory is that Bertrand was a supervisor who -
although he did not personally make the decision to terminate
her - performed acts motivated by discriminatory animus that
he intended to cause and which actually did cause her
termination. Opp. at 21.Brandli has no direct evidence that
discriminatory animus motivated Bertrand's actions in
this case and instead attempts to prove Bertrand's animus
with two kinds of circumstantial evidence: (1) the statements
of other female Micrus employees; and (2) reasons ...