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Dyer v. McCormick and Schmick's Restaurants, Inc.

United States District Court, District of Columbia

September 3, 2017

BRETT F. DYER, Plaintiff,


          RANDOLPH D. MOSS United States District Judge

         This employment discrimination and retaliation case is before the Court on Defendants' motions for summary judgment (Dkts. 37 & 38). Plaintiff is Brett F. Dyer-a Sous Chef who aspired to be an Executive Chef. Defendants are three national restaurant chains. Defendant McCormick and Schmick's Seafood Restaurants, Inc. (“M&S”) operates a variety of restaurants across the United States. Defendant Landry's, Inc. (“Landry's”) acquired M&S in January 2012.[1] And Defendant Gordon Biersch Brewery Restaurant Group, Inc. (“Gordon Biersch”) owns and operates another chain of restaurants.

         Between December 2005 and May 2013, Dyer worked as a Sous Chef for M&S and then M&S/Landry's. Although Dyer repeatedly expressed interest in becoming an Executive Chef, he never received a promotion. Dyer says he was not promoted because of his race. M&S/Landry's responds that (1) he was not officially considered for promotion because he never submitted an application and (2) he was not otherwise considered because he was not qualified. Because Dyer has failed to adduce any material evidence casting doubt on the second of these rationales, the Court will GRANT M&S/Landry's motion for summary judgment as to Dyer's non-promotion claims.

         Dyer's employment ended in May 2013 when M&S/Landry's shuttered the restaurant to which he was assigned. Although M&S/Landry's transferred the remaining managers to other M&S/Landry's restaurants in the region, it failed to do the same for Dyer. Instead, M&S/Landry's terminated Dyer's employment for what he alleges were unlawful discriminatory and retaliatory reasons. Because a reasonable jury could find that M&S/Landry's proffered justifications for terminating Dyer's employment were not only false but evasive, and because Dyer was let go shortly after filing an EEO complaint with the D.C. Office of Human Rights, the Court will DENY M&S/Landry's motion for summary judgment as to Dyer's termination claims.

         Finally, in May and June of 2013, Dyer sought a position at a restaurant owned by Gordon Biersch. Gordon Biersch extended him an offer but withdrew it soon thereafter. Gordon Biersch says it withdrew the offer because it learned that Dyer had misrepresented his employment history. Dyer says that Gordon Biersch withdrew the offer because someone from M&S/Landry's sent an email to Gordon Biersch calling him a “troublemaker, ” purportedly in reference to his recent complaints of racial discrimination and unlawful retaliation. Dyer thus accuses M&S/Landry's of engaging in “post-termination retaliatory behavior, ” and accuses Gordon Biersch of withdrawing its offer because of unlawful retaliatory animus. Dyer has failed to identify any admissible evidence, however, establishing the existence, much less the specific substance, of the alleged email. Nor has he identified any evidence that would permit a reasonable jury to find that Gordon Biersch personnel were aware of Dyer's earlier discrimination and retaliation complaints. The Court, accordingly, will GRANT all three defendants' motions for summary judgment as to Dyer's post-termination claims.

         I. BACKGROUND

         At restaurants run by M&S (and, later, by Landry's), Sous Chefs must demonstrate not only culinary skills, but managerial skills. Dkt. 37-2 at 11 (M&S/Landry's Statement of Undisputed Material Facts (“SUMF”) ¶¶ 15, 16).[2] They are responsible for food preparation, inventory management, and supervision of the kitchen's hourly staff, including line cooks. Id. They also “assist with kitchen staff scheduling, personnel actions, and employee paperwork.” Id. (M&S/Landry's SUMF ¶ 15). And they have other responsibilities like ordering supplies and managing costs. See, e.g., Dkt. 37-7 at 4; Dkt. 37-22 at 2. Sous Chefs are evaluated annually based on “culinary skills, quantitative metrics such as sales and budget, and qualitative manager[ial] behaviors such as business acumen, leadership, and employee relations.” Dkt. 37-2 at 11 (M&S/Landry's SUMF ¶ 16).

         A given M&S/Landry's restaurant will typically have multiple Sous Chefs, as well as one Executive Chef. The Executive Chef oversees the Sous Chefs and “is responsible for overall management of kitchen functions.” Id. at 8-9 (M&S/Landry's SUMF ¶ 6); accord Id. at 11 (M&S/Landry's SUMF ¶ 16). In addition, M&S/Landry's employs Regional Managers and Regional Chefs who oversee all M&S/Landry's restaurants in a given regional market. Id. at 9- 10 (M&S/Landry's SUMF ¶¶ 8-9). At the relevant times, the District of Columbia market included as many as nine M&S/Landry's restaurants. See, e.g., Dkt. 40-11 at 4.

         A. Dyer's Employment at the D.C. Grill

         On December 7, 2005, Dyer began as a Sous Chef at the M&S Grill located at 600 13th Street NW, Washington, D.C. Dkt. 37-2 at 7-8 (M&S/Landry's SUMF ¶ 3). (For clarity, this opinion will refer to the restaurant as “the D.C. Grill.”) According to Dyer, he also filled in as the D.C. Grill's de facto Executive Chef for an extended period of time “around 2006, ” while Lisa Thompson, an African-American women who served as the actual Executive Chef, recovered from a car accident. Dkt. 40-1 at 6-7 (Dyer Dep. 73:4-77:2, 80:14-20); Dkt. 40-2 at 3 (Dyer Dep. 100:11-12). He asserts that, during his informal tenure in that position, the D.C. Grill rocketed up M&S's internal rankings “in the region for the whole United States, ” moving from sixty-eighth place to first. See Dkt. 40-2 at 3 (Dyer Dep. 97:4-98:16). Although Dyer testified that he had “paperwork to attest to [the D.C. Grill's rise in the rankings]” during his informal tenure as the de facto Executive Chef, see Id. (Dyer Dep. 97:8), no such documents are before the Court. Around the same time (i.e., in 2006), Dyer recalls asking Regional Chef Anthony Marcello why he had not yet been promoted. Id. (Dyer Dep. 98:21-99:4, 100:11-12). According to Dyer, Marcello responded: “[W]hen I see an executive chef, I know it when I'm looking at him.” Id. (Dyer Dep. 99:16-17). In Dyer's view, that answer “d[id]n't make any sense, ” given how successful he had been in his role as the D.C. Grill's de facto Executive Chef. Id. (Dyer Dep. 99:17-100:15).

         Dyer's performance reviews from 2006 to 2008, however, paint a less flattering picture of his abilities. His first-and, ultimately, best-review took place in August 2006, about eight months after he started. See Dkt. 37-7. His average rating across all categories was 3.3 out of 5, putting him slightly above the “[m]eets [e]xpectations” benchmark of 3.0. See Id. But that was the only review in which Dyer “met expectations.” In his 2006-2007 annual review, his average rating dropped to 2.8, see Dkt. 37-8, where it remained for his 2007-2008 review, see Dkt. 37-9.[3]Dyer's various reviewers expressed concerns about his “tend[ency] to forward problems to [his supervisor], ” see Dkt. 37-8 at 2; Dkt. 37-7 at 3; his difficulties training subordinates and delegating them tasks, see Dkt. 37-7 at 2; Dkt. 37-8 at 4; Dkt. 37-9 at 2, 3; and his untimely and inconsistent enforcement of company policies, see Dkt. 37-7 at 2; Dkt. 37-8 at 2, 6; Dkt. 37-9 at 2. The 2006-2007 and 2007-2008 reviewers further emphasized Dyer's need to hew more closely to M&S recipes and food preparation techniques, and his need to keep the kitchen in cleaner condition. See Dkt. 37-8 at 4, 6; Dkt. 37-9 at 3, 5. They also rated many of his financial management skills as “[b]elow [e]xpectations.” See Dkt. 37-8 at 4; Dkt. 37-9 at 3.

         All the while, Dyer continued to express frustration that he had not been promoted.[4]Between April and November 2007, he had several conversations with M&S employees, including two conversations with the supervisor who completed his 2006 performance evaluation, in which he “complained . . . that . . . [he was] being passed over” because of his race and lamented that he “should have been well on [his] way to being promoted.” Dkt. 40-4 at 4 (Dyer Dep. 276:2-5); see also Id. at 4-5 (Dyer Dep. 274:12-280:22). Dyer repeated his concern that he “was having some struggles with trying to be promoted” to his new supervisor, Adan Maya, in March 2009, and did so again to three other M&S employees, including a Human Resources representative, in July and August 2009. See Id. at 5-6 (Dyer Dep. 279:19-282:18). It is undisputed, however, that Dyer never submitted a formal “expression of interest” in promotion through M&S's internal website and that he never filed a written or electronic application for any particular position. See Dkt. 40-3 at 2 (Dyer Dep. 189:22-191:1); Dkt. 37-4 at 27 (Dyer Dep. 244:3-5); Dkt. 37-2 at 11 (M&S/Landry's SUMF ¶ 14).

         Around June 2010, Dyer broached the subject of his non-promotion with the restaurant's senior management. He reached out separately to Connie Collins, who was then a Regional Manager for D.C.-area M&S restaurants; to Stephen Briggs, who was then the General Manager of the D.C. Grill; and to Adan Maya, who was then his direct supervisor. See Dkt. 40-4 at 6 (Dyer Dep. 282:19-286:14); accord Dkt. 37-2 at 9, 12 (M&S/Landry's SUMF ¶¶ 7, 17). Dyer asked them generally “what [he was] doing wrong” and “what [he] c[ould] . . . do to . . . break through and get promoted.” Dkt. 40-4 at 6 (Dyer Dep. 284:2-3); see also Dkt. 37-29 at 3 (2011 email from Collins) (“[Dyer] asked to speak to me about his goals and desire to move his career forward.”).

         In response, Collins spoke with Briggs and Maya. Dkt. 37-2 at 12 (M&S/Landry's SUMF ¶ 17). “Both felt that [Dyer] was not performing tasks at the level needed as a Sous Chef and would need to accomplish th[o]se tasks before he could even be considered qualified for potential promotion.” Id.; see also Dkt. 40-16 at 2 (Dyer SDMF) (not disputing this assertion of fact).[5] Collins thus responded to Dyer's inquiry by directing that Briggs and Maya prepare a “Development Plan” for him to help him achieve his goal. See Dkt. 37-2 at 12 (M&S/Landry's SUMF ¶ 19); Dkt. 37-29 at 4. According to an email Collins wrote a year later, Collins, Briggs, and Maya met with Dyer to “outline[]” the Development Plan, and Dyer “agreed to work on [it].” Dkt. 37-29 at 4. The Development Plan was not produced in discovery, however, and the parties dispute whether it was ever actually put to paper. See Dkt. 40-16 at 2-3 (Dyer SDMF ¶ 20). Compare Dkt. 37-4 at 15 (Dyer Dep. 167:7-11) (“They were supposed to work on a plan . . . for me . . . [but] they never followed through with it. It was never completed.”), with Dkt. 37-29 at 3 (April 2011 internal email from Hunter) (“[Dyer] lost the document [memorializing the Development Plan] and brushed it off as ‘stuck in a box somewhere in his house.'”).

         In December 2010, Dyer received his worst performance evaluation yet. See Dkt. 37-10. Maya rated him below the “meets expectations” level in eight out of nine categories, with an average rating of 2.8. See Id. The comments highlighted particular deficits in Dyer's performance. Among other things, Maya admonished Dyer that “[i]t [wa]s essential that [he] elevate [his] professional [i]nteractions with employees;” that he must “execute . . . the financial education [he] received in [his] 2010 Development Plan;” that “[t]here [wa]s no excuse” for failing to hold specific types of mandatory safety and food trainings; that he “ha[d] not partnered enough with [front of the house] managers to build business;” and that, because “[his] administrative skills [were] lacking, ” it was “essential that [he] reach out for training and become more effective.” Id. at 2-4. The review concluded that Dyer “appear[ed] to be a key turner and not the leader that we expect.” Id. at 4.

         In April 2011, Dyer filed his first charge of discrimination against M&S with the D.C. Office of Human Rights and the Equal Employment Opportunity Commission (“EEOC”), alleging that Maya assigned him a poor performance rating “because [Maya] has a bias against [b]lack employees, ” and further alleging that the poor rating “[wa]s still affecting [his] chances for future promotions.” Dkt. 37-18 at 3. Maya had since been transferred to another location and was no longer Dyer's supervisor. Id.

         In September 2011, Dyer received his annual performance review from his new supervisor, Jason Boone. See Dkt. 37-12. Like his predecessors, Boone notes a number of deficiencies in Dyer's performance. Id. Assigning Dyer an average rating of 2.20-a significant drop from previous years-Boone flagged a variety of concerns. Id. Boone's comments included that Dyer “leave[s] without notifying fellow management;” “let[s] things ‘fester' until action is necessary;” “[d]oes not listen very well;” “[d]oes not follow through with direction[s];” pays “[n]o attention to detail;” “[h]as a negative attitude;” “[s]truggles with deadlines;” “[d]oes not plan and organize well;” “[h]as trouble achieving strategic and tactical goals;” “[d]oes not follow given recipe direction[s];” and “leave[s] hazardous foods . . . out of refrigeration and then leave[s] for the day.” Id. at 2-4. In the optional “Summary Comments” field, Boone added:

[Dyer] has worked for McCormick & Schmick's for many years now. [He] should fully comprehend all aspects of daily operations, [but] he commonly does not. In [his] position, he should be able to execute at a high level[] all areas/aspects of daily operations, without complaint or resistance to senior management. [He] should be able to follow directions better, and be more aware of what is being asked of him. A review of this caliber is below McCormick & Schmick's standards. [Dyer] needs to work in all areas of his review, and take it upon himself to learn and progress in the areas, not just wait around to be told/shown what to do.

Id. at 5.

         Adding to these concerns, Dyer received three written disciplinary warnings in 2012 after M&S had been acquired by Landry's. Dkt. 37-2 at 14 (M&S/Landry's SUMF ¶¶ 25, 26). The first warning, issued in March, charged Dyer with “insubordination” for failing to complete the task of baking cinnamon rolls before leaving for the day, as Boone had specifically requested. See Dkt. 37-13 at 2. The second warning, also issued in March, charged Dyer with “unprofessional behavior” and “falsifying company records” because Dyer had created a job verification letter that misstated his subordinate's hourly wage. Id. at 3-4. And the third warning, issued in August, faulted Dyer for uncritically accepting a delivery of products intended for an entirely different M&S restaurant.[6] See Dkt. 37-14 at 3; Dkt. 37-20 at 28 (Marcello Dep. 177:4-21). Although Dyer argues in his brief that his supervisors “disciplined [him] without bothering to obtain his version of events, ” Dkt. 40 at 13-15, he does not argue that the warnings were fabricated or suggest that the events did not occur.[7]

         Dyer's final performance evaluation in August 2012 assigned him an average rating of just 2.0. See Dkt. 37-15. Boone rated Dyer “[u]nsatisfactory” or “[n]eeds improvement” in 30 of the 38 performance categories.[8] See id. The comments largely restated those from Dyer's 2011 review, and Boone expressed frustration that Dyer “ha[d] fallen behind in all areas” since then. Id. at 6. Dyer's poor overall rating on his 2012 performance evaluation triggered the creation of a “Performance Improvement Plan” (“PIP”) under company policy. Dkt. 37-2 at 15 (M&S/Landry's SUMF ¶ 28). Briggs and Boone prepared the PIP and presented it to Dyer. Dkt. 37-38 at 3 (Jasso Decl. ¶ 6). The PIP explained that it was intended “[t]o serve as notification that [Dyer's] performance [did] not meet[] professional standards by Landry's” and to “clarify” the company's “performance expectations.” Dkt. 37-38 at 13. It then repeated many of the concerns reflected in Dyer's performance evaluations, including concerns that that Dyer “d[id] not maintain a high level of performance from his staff;” “d[id] not follow recipes;” “d[id] not finish on time;” “d[id] not plan ahead efficiently;” “ha[d] a negative attitude;” “d[id] not motivate his hourly employees well;” and “lack[ed] overall motivation himself.” Id. at 13-14. Finally, the PIP identified various areas of “[e]xpected [i]mprovement” and set a future meeting “to discuss [Dyer'] progress concerning [his] performance.” Id. at 14-15. Once again, Dyer does not dispute that his 2012 performance evaluation and PIP reported these deficiencies, but he does disagree with his managers' assessment of “the quality of [his] job performance.” Dkt. 40-16 at 3 (Dyer SDMF ¶¶ 27-28).

         Despite these increasingly critical performance evaluations, between 2010 and 2012 Dyer continued to express interest in receiving a promotion. At deposition, Dyer recounted at least four such incidents.[9] First, near “the end of 2010 or the beginning of 2011, ” Dyer expressly told Marcello that he wanted to “put in [his] bid to be the next [E]xecutive [C]hef” at the D.C. Grill. Dkt. 40-3 at 8-9 (Dyer Dep. 239:19-241:19). There is no evidence that Dyer submitted a formal application. See id. Second, in late March or early April 2011, Dyer asked Marcello about a specific “[E]xecutive [S]ous or [E]xecutive [C]hef” job opening, but Marcello told him the position had been filled. Dkt. 40-4 at 7 (Dyer Dep. 287:10-288:8). Third, sometime after Maya left the D.C. Grill in mid-2012, Dyer says that he asked Marcello “what . . . [he] ha[d] to do in order to be promoted, ” and Marcello responded, “Don't worry about it, Brett. I'll take care of you.” Dkt. 40-1 at 10 (Dyer Dep. 91:22-92:6). And, fourth, in December 2012, Dyer recalls “expressing an interest in being promoted” during a conversation with Brendan Lofton, the Regional Director of Operations. Dkt. 40-4 at 9 (Dyer Dep. 306:11-12, 307:10-21). Again, there is no record evidence that Dyer ever submitted a formal “expression of interest” online or submitted written or electronic applications for any particular job openings.[10]

         On April 25, 2013, Dyer filed a second EEO complaint against M&S/Landry's with the D.C. Office of Human Rights and the EEOC in which he alleged that his poor performance reviews and his occasionally late pay checks were the result of racial discrimination. See Dkt. 37-18 at 4. This complaint did not mention a discriminatory failure to promote. See id.

         B. Dyer's Discharge from the D.C. Grill

         Around the same time that Dyer filed his second EEO complaint, Lofton learned that the D.C. Grill would be closing its doors permanently, effective May 27, 2013. Dkt. 37-2 at 15 (M&S/Landry's SUMF ¶ 29); Dkt. 37-24 at 7 (Lofton Dep. 17:8-22). M&S/Landry's had elected not to renew the building's lease, Dkt. 37-2 at 15 (M&S/Landry's SUMF ¶ 29), and Dyer does not challenge that decision here, Dkt. 40 at 5.

         As was standard operating procedure, it fell to Lofton as the Regional Manager to decide which D.C. Grill employees would be transferred to other D.C.-area Landry's restaurants, and which employees would be let go. Dkt. 37-2 at 15 (M&S/Landry's SUMF ¶ 30); Dkt. 40-8 at 12 (Lofton Dep. 135:13-137:10); Dkt. 40-16 at 3 (Dyer SDMF ¶ 30). Although Dyer disputes this testimony, Lofton testified he made these determinations in early May 2013 based on the other restaurants' “current [staffing] needs.” Dkt. 40-8 at 12 (Lofton Dep. 136:8-137:18). Lofton also testified, with some equivocation, that he does not remember if he was able to find a place for Dyer. Id. at 13 (Lofton Dep: 138:1-8); id. at 14 (Lofton Dep. 148:2-10) (“[M]y recollection is there was nothing open within my restaurant authority . . . in order to transfer him or we would have, more than likely-or not. I don't remember.”). It is undisputed, however, that when Dyer arrived at work on May 27, 2013, Lofton informed him that M&S/Landry's “d[id]n't have any place for [him]” and that they were “going to let [him] go.” Dkt. 40-4 at 3 (Dyer Dep. 263:4- 264:18); accord Dkt. 37-2 at 17 (M&S/Landry's SUMF ¶ 34). Lofton then terminated Dyer's employment. M&S/Landry's maintains that Lofton made this decision “[b]ecause there was no open Sous Chef position in his territory.” Dkt. 37-2 at 17 (M&S/Landry's SUMF ¶ 34); see also Dkt. 37-26 at 16 (Jasso Dep. 81:14-22) (“I don't believe that we offered [Dyer] a specific position because we didn't have one in his region.”).

         Dyer was the only manager still working at the D.C. Grill who was terminated rather than transferred. Lofton transferred the other three managers to equivalent positions at nearby M&S/Landry's restaurants. See 37-2 at 16-17 (M&S/Landry's SUMF ¶¶ 31-33). Those three mangers were General Manager Jeff White (Caucasian); Assistant General Manager Sophia Kiflu (African American);[11] and Sous Chef Dario Guzman (Hispanic). Id. Although Dyer and Guzman were both Sous Chefs, only Guzman-the more junior of the two-was transferred.

         Guzman was “promot[ed] to the position of Sous Chef at the Reston, Virginia location” in August 2012, Dkt. 37-37 at 2 (Guzman offer letter), but he had since been “transferred to the D.C. Grill, ” Dkt. 37-20 at 16 (Marcello Dep. 96:9-12). Dyer characterizes Guzman as a “[S]ous [C]hef in training, ” Dkt. 37-4 at 37 (Dyer Dep. 257:8), and, indeed, Guzman's offer letter reflects that he was originally hired into the “Manager in Training” program, Dkt. 37-37 at 2. The parties, however, have presented no evidence as to what this program entailed or whether Guzman remained a part of it in May 2013.[12] When the D.C. Grill closed, Guzman was transferred “[a]s a [S]ous [C]hef” back to his prior location in Reston. Dkt. 40-7 at 10 (Jasso Dep. 79:8-21).

         C. Dyer's Application to Gordon Biersch

         1. Dyer Applies to Gordon Biersch Even before the D.C. Grill closed, Dyer had been looking for a new job. He contacted a third-party recruiter, Julie Spencer, and on May 2, 2013, Spencer forwarded Dyer's candidate profile to employees at Gordon Biersch. Dkt. 38-2 at 2 (GB SUMF ¶ 6); see also Dkt. 41-1 at 1 (Dyer SDMF). On May 16, 2013, Chris Brett, one of Gordon Biersch's internal recruiters, interviewed Dyer for a Sous Chef position. Dkt. 38-2 at 2 (GB SUMF ¶ 7); see also Dkt. 41-1 at 1 (Dyer SDMF). During the interview, Dyer stated that he was still working at M&S/Landry's- which was true at the time. Dkt. 38-2 at 2 (GB SUMF ¶ 7); see also Dkt. 41-1 at 1 (Dyer SDMF). But, as noted above, his employment with M&S/Landry's terminated eleven days later on May 27, 2013. Dkt. 38-2 (GB SUMF ¶ 8). Dyer then filed additional EEO complaints against M&S/Landry's on May 31, 2013, and June 8, 2013. See Dkt. 37-18 at 2, 5.

         After his termination from the D.C. Grill, Dyer continued to represent to Gordon Biersch that he was still employed there, even though that assertion was no longer true. During an interview on June 8, 2013, Dyer made statements to Gordon Biersch's Regional Manager, Arthur Forgette, that at minimum left Forgette with the false impression that Dyer was still working at the D.C. Grill. See Dkt. 38-2 at 2 (GB SUMF ¶ 9); Dkt. 38-7 at 2-3 (Forgette Dep. 35:22-36:1). Forgette testified that Dyer told him that “he was currently working at [the D.C.] Grill, ” although he also testified that he did not have a specific recollection of the conversation and that he was replying, instead, on his “general practice” in conducting interviews. Dkt. 38-7 (Forgette Dep. 35:22-36:22). Dyer, in turn, testified that Forgette asked him if he “was . . . still working, ” and that he responded, “Yes, I'm still working.” Dkt. 41-6 at 7-8 (Dyer Dep. 355:9-356:11).

         On June 24, 2013, Dyer completed his online job application. Dkt. 38-2 at 2 (GB SUMF ¶ 10). In response to a question asking for his “[r]eason for leaving” M&S/Landry's, Dyer wrote: “Still employed there.” Dkt. 37-34 at 4. As a Gordon Biersch witness explained, however, the date reflected on the online application represents “the last time that the candidate accessed the application, ” Dkt. 38-5 at 5-6 (Brett Dep. 60:22-61:14), raising the possibility that Dyer's response was correct at the time him input his answer but became incorrect by the time he finalized his application.[13] And on June 28, 2013, Dyer began to complete a background check form for Gordon Biersch, on which he falsely indicated that he was still employed at the D.C. Grill. Dkt. 38-2 at 2 (GB SUMF ¶ 11). According to Spencer, Dyer confided in her that he had intentionally misrepresented his employment history “because [he] didn't think they would give [him] the job” otherwise. Dkt. 37-31 at 13-14 (Spencer Dep. 38:5-39:17).

         2. Gordon Biersch Extends an Offer

         On July 8, 2013, Gordon Biersch offered Dyer a job as a Sous Chef. Dkt. 37-35. Dyer immediately accepted. Dkt. 38-2 at 3 (GB SUMF ¶ 14). Within days, however, Gordon Biersch, reconsidered that decision. The following events are recounted in the record.

         On or about July 9, 2013, Forgette received a phone call from Kirk Spare, one of Gordon Biersch's General Managers with whom Dyer had interviewed. Dkt. 38-2 at 2-3 (GB SUMF ¶¶ 12, 15); Dkt. 41-8 at 7-8 (Forgette Dep. 49:20-50:21). Spare described how he had mentioned to an unidentified M&S/Landry's employee from the D.C. Grill that Gordon Biersch had hired Dyer. Dkt. 41-8 at 7-8 (Forgette Dep. 49:20-50:21). According to Spare, the M&S/Landry's employee “raised [his] eyebrows” and informed Spare that Dyer no longer worked for M&S/Landry's. Id. Based on this conversation, Spare recommended that Forgette “look deeper” into Dyer's employment history and “maybe do some reference checks.” Id. at 9 (Forgette Dep. 52:1-15). Spare was concerned, in particular, that Dyer may have misrepresented “the times that he told [Gordon Biersch that] he was working at M&S Grill.” Id.

         On July 10, 2013, Brett sent Spencer an email with the subject line “RE: Brett Dyer, ” stating: “It is getting weirder and more strange by the minute.” Dkt. 41-3 at 2. The following day, Forgette sent Brett an email describing a conversation Forgette had had with one of Gordon Biersch's chefs, Mamadou Diallo. See Dkt. 41-4 at 4; Dkt. 41-9 at 3 (Forgette Dep. 10:18-22). According to Forgette's email, Diallo had previously worked for M&S as a regional chef. Dkt. 41-4 at 4. The email further explained that Diallo had “called the guy . . . he worked with, ” and that guy had “said that they closed [the D.C. Grill] and had open positions in the region but would not offer jobs to the [two] chefs (including [Dyer]) when they closed it.” Id. Finally, the email reported that Diallo “said he would not hire [Dyer].” Id. Diallo never identified “the guy with whom he worked” at M&S. Dkt. 41-9 at 5 (Forgette Dep. 14:11-18).

         3. Gordon Biersch Withdraws the Offer

         On July 12, 2013, one or more representatives from Gordon Biersch contacted Dyer to rescind the company's offer. Dkt. 38-2 at 3 (GB SUMF ¶ 16); see also Dkt. 41-1 at 1 (Dyer SDMF). Brett and Forgette state that they and Spare jointly made the decision to withdraw the offer, and that they did so because they had been unable to verify Dyer's employment history and because they believed Dyer had been untruthful with them. Dkt. 37-36 at 7 (Forgette Dep. 70:7-18); Dkt. 38-5 at 17 (Brett Dep. 118:7-20).[14] Spencer attests that it was also her understanding that Dyer's perceived untruthfulness was the reason the offer had been withdrawn. Dkt. 37-31 at 15 (Spencer Dep. 46:6-9). Dyer, however, “hotly contest[s]” those accounts. Dkt. 41 at 6.

         According to Dyer, he received two phone calls in quick succession on July 11, 2013. Dkt. 41-6 at 9, 13 (Dyer Dep. 359:13-19, 363:1-11). He was driving at the time, so he put both calls on speakerphone. Id. at 11 (Dyer Dep. 361:4-8). His fiancée was also in the car, id. at 9- 10 (Dyer Dep. 359:21, 360:18), and she has submitted a declaration stating that she “could hear both sides of the conversation[s]” and corroborating Dyer's account, see Dkt. 41-5 (Gonzalez-Dyer Decl.).

         The first phone call was from Spencer, the third-party recruiter. Dkt. 41-6 at 9 (Dyer Dep. 359:13-16); Dkt. 41-5 at 2-3 (Gonzalez-Dyer Decl. ¶¶ 3-7). Dyer attests that Spencer was “very excited” about a call she had received from Forgette. Dkt. 41-6 at 9-10 (Dyer Dep. 359:19-360:5). According to Dyer, Spencer told Dyer that Forgette had told Spencer that Forgette received “an anonymous email” saying that Dyer “was a problem employee” and “was trouble.” Id. Forgette had also told Spencer that this email was the reason Gordon Biersch was withdrawing the offer. Id.; see also Dkt. 41-5 at 2 (Gonzalez-Dyer Decl. ¶ 4) (“Spencer stated that . . . Forgette told her that . . . Dyer's offer was going to be rescinded because an anonymous email indicated that he was a ‘trouble-maker.'”). Spencer did not mention anything about Dyer's job application being untruthful. Dkt. 41-5 at 2-3 (Gonzalez-Dyer Decl. ¶¶ 5, 6). Spencer also told Dyer to “expect a call” from Arthur Forgette. Dkt. 41-6 at 12 (Dyer Decl. 362:11-12).

         The second phone call occurred shortly thereafter. The phone number on caller ID had the same first three digits as did the phone number Spencer had used. Dkt. 41-6 at 13 (Dyer Dep. 363:4-8). Dyer assumed the caller was Forgette and answered the phone by saying “Arthur.” Id. (Dyer Dep. 363:9-11). The man on the line immediately started talking, without acknowledging Dyer's greeting or stating who he was. Id. The caller then confirmed that Gordon Biersch had received the anonymous email asserting that Dyer was “trouble, ” that he was “a bad employee, ” and that Gordon Biersch should not hire him. Id. at 15 (Dyer Dep. 367:6-19). According to Dyer, the caller concluded by saying that he had “to protect the business and, ” therefore, was “going to have to withdraw the [company's] offer” of employment. Id. The caller did not mention the truthfulness of Dyer's application. Dkt. 41-5 at 3 (Gonzalez-Dyer Decl. ¶¶ 8-12).

         Spencer, for her part, testified that she was unaware of the anonymous email and that Dyer's contention that she called to tell him about the email was untrue. Dkt. 37-31 at 15 (Spencer Dep. 46:1-22). Brett denies having received or learned of an anonymous email, and further denies that he was aware of Dyer's disciplinary history at M&S/Landry's. Dkt. 37-33 at 8-9 (Brett Dep. 159:21-160:7). Brett was also unaware of Dyer's previous EEO complaints against M&S and M&S/Landry's. Id. at 9 (Brett Dep. 160:16-19). As to Forgette, he testified that he did not receive any communications, including any email, about Dyer from anyone at M&S/Landry's. Dkt. 37-36 at 8 (Forgette Dep. 104:15-21). And, although the parties have not directed the Court to any portion of Forgette's deposition in which he confirmed or denied knowledge of Dyer's earlier EEO complaints, Forgette attests that those EEO complaints played no role in the decision to withdraw Dyer's offer. Id. at 10 (Forgette Dep. 106:4-8). Spare's deposition was not taken. See Dkt. 46 at 1. Dyer agrees that he never told Brett, Forgette, or Spare about his prior EEO activity. Dkt. 38-6 at 5-7 (Dyer Dep. 39:6-41:2). The “anonymous email” was not produced in discovery.


         The moving party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it can “show[] that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When, as here, the plaintiff bears the ultimate burden of proof, but the defendant has moved for summary judgment, the defendant “bears the initial responsibility” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it could affect the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007). The Court, moreover, must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party's favor. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

         “Although summary judgment is not the occasion for the court to weigh credibility or evidence . . . summary judgment is appropriate if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. (internal citations and quotation marks omitted). The nonmoving party's opposition, accordingly, must consist of more than unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. That is, once the moving party carries its initial burden on summary judgment, the nonmoving party must provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If the nonmoving party's evidence is “merely colorable” or “not significantly probative, ” the Court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50.

         III. ANALYSIS

         Dyer brings claims for racial discrimination in employment in violation of 42 U.S.C. § 1981 and the D.C. Human Rights Act (“DCHRA”). Both statutes “prohibit[] private employers from intentionally discriminating on the basis of race with respect to the ‘benefits, privileges, terms, and conditions' of employment.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting § 1981(b)); accord D.C. Code § 2-1402.11(a)(1). He also asserts claims for retaliation under the DCHRA, which further prohibits “retaliat[ing] against, ” “suggest[ing]” retaliation against, or “aid[ing]” and “abet[ting]” retaliation against any person “on account of [that person] having exercised” his DCHRA rights. See D.C. Code §§ 2-1402.61, 2-1402.62.

         Under both statutes, when a plaintiff relies on circumstantial evidence to prove a defendant's intent, courts apply the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 3, 6 (D.C. Cir. 2010) (Title VII analytic framework applies to discrimination and retaliation claims under § 1981 and the DCHRA). “Under this formula, an employee must first make out a prima facie case of retaliation or discrimination. The employer must then come forward with a legitimate, non-discriminatory or non-retaliatory reason for the challenged action.” Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016) (citations omitted). But once the defendant proffers one or more legitimate, non-discriminatory, and non-retaliatory reasons, the Court “need not-and should not-decide whether the plaintiff actually made out a prima facie case.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, the Court should decide only the ultimate question: “Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non[-]discriminatory [and non-retaliatory] reason[s] w[ere] not the actual reason[s] and that the employer intentionally discriminated against the employee on the basis of race [or retaliated against the employee for engaging in ...

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