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Silva v. Cleary Gottlieb Steen & Hamilton LLP

United States District Court, District of Columbia

May 25, 2017

LYLE A. SILVA, Plaintiff,


          AMY BERMAN JACKSON United States District Judge

         Plaintiff Lyle A. Silva is an African-American attorney who has worked at various law firms as a contract attorney. After he was furloughed and then fired by defendant Cleary Gottlieb Steen & Hamilton (“Cleary”), he filed this lawsuit, alleging that he was fired because of his race in violation of Title VII the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Am. Compl. [Dkt. # 16]. Defendant has moved for summary judgment. While plaintiff attributes his termination to his race, defendant maintains that plaintiff was terminated because the matter to which he was assigned had concluded, and the firm did not have other suitable work for him to do. Because plaintiff has not identified any evidence from which a reasonable juror could conclude that defendant's explanation is a pretext for discrimination, the Court will grant defendant's motion.


         The following facts are undisputed.[1] Cleary is an international law firm. Def.'s Statement of Material Facts [Dkt. # 24-18] (“Def.'s SOF”) ¶ 1. Cleary's Discovery and Litigation Technology Department, based in Washington, D.C., handles the electronic discovery needs of the firm's clients in antitrust, litigation, and enforcement matters. Id. ¶ 2. The firm employs both contract attorneys and project attorneys. Id. ¶ 3. Contract attorneys are employed through a staffing agency and project attorneys are employed directly by the firm. Id. Both contract attorneys and project attorneys perform work on specific projects. Id. Project attorneys at Cleary are often furloughed for weeks at a time when their projects end or begin to slow down. Id. ¶ 4. Furloughed project attorneys may be recalled to work, but if the firm determines that it lacks sufficient suitable work to assign to a furloughed project attorney, it will terminate that individual's employment. Id.

         Senior Staff Attorney Delante Stevens, who is African American, is the Cleary employee responsible for making employment decisions with regard to project attorneys. Def.'s SOF ¶ 5. He collaborates with the attorneys who are in charge of the Discovery Department's projects, and he works with Practice Administrator Alex Billeb, who is multiracial, and the Managing Attorney for Discovery and Litigation Technology, Tom Hall, who is white. Id.

         Plaintiff, who is African American, graduated from law school in 1998. Def.'s SOF ¶ 6. Since 2000, he has held a series of contract and project attorney positions in the document review field at approximately 20 or 30 law firms in the Washington, D.C. area. Id. Plaintiff applied for a project attorney position at Cleary in 2011. Id. ¶ 8. He had previously worked at Cleary for Tom Hall, and Hall recommended that Stevens interview plaintiff for an open position. Id. ¶ 9.

         In the summer of 2011, the Department was working on a large bank matter that required attorneys with strong skills in determining whether particular documents could be withheld from production on privilege grounds. Def.'s SOF ¶ 10. Applicants at that time were given a diagnostic test to assess their skills in that area. Id. Plaintiff scored lower on the exercise than ten of the fifteen other applicants who took it in that time period; in light of his score, a senior staff attorney who scored the exam recommend that plaintiff not be offered a position. Id. ¶ 11. Stevens decided to hire plaintiff notwithstanding his diagnostic score because the firm had a high volume of work at that time, but he assigned plaintiff to a regulatory matter, instead of the privilege exercise in the bank matter. Id. ¶¶ 12, 14.

         About a month later, work on the regulatory investigation slowed, and plaintiff was transferred to a project involving a coal mine investigation. Def.'s SOF ¶ 15. The mining project was managed by Staff Attorney Mike Bohner, who is white. Id. Bohner found plaintiff's work to be “acceptable, ” but not strong; he found it difficult to get plaintiff to focus on his work; and he also found errors in the work product that plaintiff ultimately completed. Id. ¶¶ 18-19. Bohner also had to caution plaintiff twice to not use social media during work hours. Id. ¶ 20.

         Stevens avers in a declaration submitted in support of the summary judgment motion that he had concerns about plaintiff's focus and professionalism from the start. He lists a number of events that led him to doubt plaintiff's commitment to the job: plaintiff's request to delay his start date at the firm to attend a film festival, plaintiff's request to access the firm's guest wireless network so that he could use a personal device during work, and the fact that plaintiff was often away from his desk for twenty to thirty minutes at a time talking with his coworkers. Def.'s SOF ¶ 22; Decl. of Delante Stevens, Ex. 5 to Def.'s Mot. [Dkt. # 24-6] (“Stevens Decl.”) ¶ 21. In light of those concerns, Stevens concluded that plaintiff was an adequate employee who lacked potential for growth. Def.'s SOF ¶ 23. Stevens contemplated firing plaintiff in October 2011, when a white project attorney was also terminated for performance issues, but Bohner convinced him that plaintiff should stay given his knowledge about the mining matter. Id. ¶ 24.

         In November 2011, plaintiff was given the same raise that was given to all recently-hired project attorneys. Def.'s SOF ¶ 26. And in December 2011, all project attorneys received a year-end bonus which was principally based on the number of hours that each project attorney worked. Id. ¶ 27. Because of the concerns about plaintiff's work performance, his bonus was reduced. Id.

         In the spring of 2012, the mining project, as well as other projects, began to wind down. Def.'s SOF ¶ 28. So Stevens, Billeb, and Hall began discussing the reallocation of project and contract attorneys. Id. At the time, the firm “had many strong project attorneys and contract attorneys, ” and the decision on which attorneys would be furloughed was “difficult.” Stevens Decl. ¶ 31.

         There were six project attorneys on the mining project: B.S., R.A., P.C., A.B., M.W, and plaintiff. Def.'s SOF ¶ 29. In a series of emails from Bohner to Billeb and Stevens in April 2012, Bohner provided feedback on a number of project attorneys. In those emails, Bohner described P.C. as “very good” and M.W. as “excellent, ” and he recommended that they be “placed first if other projects need assistance.” Id. ¶ 30; SILVA0884, Ex. 12 to Def.'s Mot. [Dkt. # 24-13]; SILVA0896, Ex. 12 to Def.'s Mot. [Dkt. # 24-13]. Stevens also wrote emails to himself to memorialize his assessment of various project attorneys. In a September 2011 email to himself, Stevens described P.C., a white male, as a “solid” project attorney, and he noted that it would be easy to build a team of contract attorneys around him. Def.'s SOF ¶ 31; SILVA0850, Ex. 9 to Def.'s Mot. [Dkt. # 24-10]. M.W., a white female, ran the privilege review team on the mining project; Stevens described her in the same September 2011 email as a “promising” project attorney. Id. ¶ 32; SILVA0850. R.A., a white female, was a former Cleary associate who had returned to the firm to work part-time; she worked as an associate doing securities work, and also assisted with document review. Def.'s SOF ¶ 34. In a June 2012 email from Bohner to Billeb and Stevens, Bohner described R.A.'s work as “very good.” Id. ¶ 35; SILVA0903, Ex. 12 to Def.'s Mot. [Dkt. # 24-13]. Those three attorneys were reassigned to other matters. Id. ¶¶ 33, 35.

         B.S., a white male, resigned in June 2012, but Stevens had planned to furlough him. Stevens Decl. ¶¶ 20, 39. A.B., a Hispanic female, was furloughed and then terminated. Id. ¶ 43.

         Bohner, the attorney who supervised plaintiff on the mining project, told Billeb and Stevens in an April 2012 email that plaintiff “has proven capable of targeted searches in response to associate research requests, ” SILVA0883, but he later testified at his deposition that those kinds of assignments only constituted a “very small percentage” of the Discovery Department's work. Dep. of Michael W. Bohner (Oct. 12, 2016) [Dkt. # 24-12] (“Bohner Dep.”) at 22:11-16. Bohner also testified about a specific incident: he gave plaintiff a privilege assignment, but the final work product contained many errors, so Bohner was required to work late at night to correct the issues. Id. at 23:3-9; Def.'s SOF ¶ 19. After that experience, Bohner was reluctant to assign plaintiff additional privilege work. Bohner Dep. at 39:11-15; Def.'s SOF ¶ 19.

         Ultimately, on July 27, 2012, plaintiff was furloughed. Def.'s SOF ¶ 37. Stevens states in his declaration that he made the decision to furlough plaintiff based on “the feedback . . . from Mr. Bohner” about plaintiff's contributions to the mining project; his “own observations” about Silva's “commitment to the work of the Department;” and in light of “the staffing needs of other projects being handled by the Department at the time.” Stevens Decl. ¶ 40. Stevens had been prepared to bring plaintiff back to work if the mining project resumed, but he concluded that the department had no other suitable work for plaintiff. Def.'s SOF ¶ 38. When it became clear that the mining project would not generate work in the immediate future, plaintiff was terminated, effective August 9, 2012. Id. ¶ 39.

         Plaintiff, proceeding pro se, filed this federal lawsuit on December 23, 2014, alleging discrimination on the basis of his race and color. Compl. [Dkt. # 1] ¶¶ 24-25. On April 8, 2015, defendant moved to dismiss. Def.'s Mot. to Dismiss [Dkt. # 3]. On February 17, 2016, plaintiff, represented by counsel, moved for leave to amend the complaint. Pl.'s Mot. to Am. Compl. [Dkt. # 14]. On March 29, 2016, the Court granted plaintiff's motion and denied defendant's motion to dismiss. Min. Entry (Mar. 29, 2016); see Am. Compl. [Dkt. # 16]. The amended complaint alleges that defendant engaged in discrimination based on race when it terminated plaintiff; it omits the claim based on color. Am. Compl. ¶¶ 48-54.

         After a period of discovery, defendant moved for summary judgment, and that motion is fully briefed and ripe for resolution. Def.'s Mot. for Summ. J. [Dkt. # 24] (“Def.'s Mot.”); Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 24-1] (“Def.'s Mem.”); Mem. in Supp. of Pl.'s Opp. to Def.'s Mot. [Dkt. # 26] (“Pl.'s Opp.”); Reply in Supp. of Def.'s Mot. [Dkt. # 27] (“Def.'s Reply”).


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 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. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment ...

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