United States District Court, District of Columbia
LYLE A. SILVA, Plaintiff,
CLEARY GOTTLIEB STEEN & HAMILTON LLP, Defendant.
BERMAN JACKSON United States District Judge
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.
following facts are undisputed. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”).
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).
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