United States District Court, District of Columbia
BRETT F. DYER, Plaintiff,
McCORMICK AND SCHMICK'S SEAFOOD RESTAURANTS, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
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. And Defendant Gordon Biersch Brewery
Restaurant Group, Inc. (“Gordon Biersch”) owns
and operates another chain of restaurants.
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.
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.
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.
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). 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).
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.
Dyer's Employment at the D.C. Grill
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.
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.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.
while, Dyer continued to express frustration that he had not
been promoted.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).
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.”).
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). 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
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.
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
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.
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. 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.
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. 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 ¶¶
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. 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.
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.
Dyer's Discharge from the D.C. Grill
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.
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
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); 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.
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. 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.
Dyer's Application to Gordon Biersch
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.
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.
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. 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).
Gordon Biersch Extends an Offer
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.
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.
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).
Gordon Biersch Withdraws the Offer
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). 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.
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.).
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).
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).
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.
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).
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.
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.
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 ...