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Bean v. District of Columbia

United States District Court, District of Columbia

September 12, 2017

VIOLENA BEAN Plaintiff,
v.
DISTRICT OF COLUMBIA Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Violena Bean, a former clerical assistant in the Public Information Office ("PIO") of the District of Columbia Metropolitan Police Department ("MPD"), has brought this action against the District of Columbia. The complaint alleges that defendant discriminated and retaliated against her in violation of the Age Discrimination in Employment Act (" ADEA"), 29 U.S.C. § 621, et seq., and that ultimately, plaintiff was constructively terminated as a result of a series of disciplinary actions taken after she engaged in protected activity. Compl. [Dkt. # 1]. Defendant has moved for summary judgment on all counts, arguing that "no reasonable juror could find that [defendant] discriminated against [p]laintiff because of her age, retaliated against her because of her protected activity, or that [defendant's] conduct resulted in [plaintiffs] constructive termination." Def.'s Mot. for Summ. J. [Dkt. # 16] ("Def.'s Mot."); Def.'s Mem. in Supp. of Def.'s Mot. [Dkt. # 16] ("Def.'s Mem") at 1. Plaintiff opposed the motion, Pl.'s Opp. to Def.'s Mot. [Dkt. # 20] ("Pl.'s Opp."), and defendant replied. Def.'s Reply to Pl.'s Opp. [Dkt. #25] ("Def.'s Reply").

         The Court finds that plaintiff has produced sufficient direct evidence of discrimination-namely, discriminatory statements made by plaintiffs direct supervisor - to entitle her to a jury trial on Count I. However, plaintiff has failed to produce sufficient evidence for a reasonable juror to conclude either that plaintiff was retaliated against because of her protected activity, or that she was constructively terminated. Therefore, the Court will grant defendant's motion for summary judgment on plaintiffs retaliation claim (Count II) and constructive termination claim (Count III), but it will deny the motion with respect to her discrimination claim (Count I).

         BACKGROUND[1]

         The facts are not in dispute except where noted.[2] Plaintiff Violena Bean began working for MPD as a Public Information Office clerical assistant in 2004. Def.'s SOF ¶ 1; Pl.'s SOF ¶ 1. Plaintiff s primary duty was to compile newspaper clippings from various news sources on matters of interest to MPD. Def.'s SOF ¶ 2; Pl.'s SOF ¶ 2.

         In 2010, Gwendolyn Crump became the MPD Director of Communications and plaintiffs direct supervisor. Pl.'s Counter SOF ¶ 7; Def.'s Resp. SOF ¶ 7. Plaintiff was sixty-two years old at the time. Pl.'s Counter SOF ¶ 9; Def.'s Resp. SOF ¶ 9.

         Plaintiffs relationship with Crump was strained from the beginning. In February 2011, plaintiff was cited twice by Crump: once for insubordination, and once for purportedly failing to submit complete news clippings. Pl.'s Counter SOF ¶ 22; Def.'s Resp. SOF ¶ 22. On February 23, 2011, plaintiff was accused of speaking to Crump in a "loud, hostile, and unacceptable" manner after Crump asked her if she had reviewed an email containing her 2010 performance evaluation. Ex. J to Pl.'s Opp. [Dkt. # 20-1] ("Ex. J") at 1-2. One day later, plaintiff was cited for failing to include several articles in her morning clippings as directed by a PIO officer. Ex. L to Pl.'s Opp. [Dkt. # 20-1] ("Ex. L") at 1-3. Investigations into both incidents sustained the allegations. Pl.'s Counter SOF ¶¶ 27-28; Def.'s Resp. SOF ¶¶ 27-28.[3]

         The Fifteen-Day Suspension

         On October 24, 2012, plaintiff answered a phone call from a reporter who had contacted the PIO to speak to an officer about an important news event. PI.' s Counter SOF ¶ 32; Def's Resp. SOF ¶ 32. She did not make a written record of the reporter's call, and she was cited for failing to do so. Pl.'s Counter SOF ¶ 33; Def's Resp. SOF ¶33.[4] Subsequently, on February 1, 2013, plaintiff received a Proposed Notice of Adverse Action stating that she was to be suspended for fifteen days without pay as a result of the October incident. Pl.'s Counter SOF ¶ 38; Def's Resp. SOF ¶ 38; Ex. 4 to Def's Mot. [Dkt. # 16-1] ("Ex. 4") at 1.

         On February 11, 2013, in response to the proposed fifteen-day suspension, plaintiff sought EEO counseling and, on February 13, 2013, she filed a complaint with the District of Columbia Office of Human Rights ("OHR") alleging that she had been discriminated against on the basis of her age in connection with the fifteen-day suspension. Pl.'s Counter SOF ¶41; Def's Resp. SOF ¶ 41. In a written statement completed as part of the EEO counseling and eventual OHR complaint, plaintiff alleged that Crump had said: "The officers are faster than you, you need to work, work, work"; and "You've been here so long when are you going to retire?" Ex. B to Pl.'s Opp. [Dkt. #20-1] ("OHR Complaint").

         On March 5, 2013, plaintiff received a Notice of Final Decision to impose the fifteen-day suspension and was advised of her right to appeal the suspension with the Office of Employee Appeals ("OEA"). Pl.'s Counter SOF ¶ 43; Def's Resp. SOF ¶ 43; Ex. 4. She began serving her fifteen-day suspension on March 18, 2013, Def.'s SOF ¶ 4; Pl.'s SOF ¶ 4, and she filed an OEA appeal contesting it on April 4, 2013. Pl.'s Counter SOF ¶ 46; Def.'s Resp. SOF ¶ 46.

         On August 16, 2013, Crump exchanged emails with Matthew Miranda, a Human Resources Special Assistant, regarding MPD's response to plaintiffs OEA appeal, Pl.'s Counter SOF ¶ 65; Def.'s Resp. SOF ¶ 65, and defendant filed its response on August 20, 2013. Pl.'s Counter SOF ¶ 66; Def.'s Resp. SOF ¶ 66. On November 5, 2013, Crump was served with a Notice of a Deposition in plaintiffs OEA appeal. Pl.'s Counter SOF ¶ 70; Def.'s Resp. SOF ¶ 70. And on December 9, 2013, defendant produced responses to plaintiffs discovery requests in this matter. Pl.'s Counter SOF ¶ 84; Def.'s Resp. SOF ¶ 84.

         The Thirty-Five-Day Suspension

         On April 12, 2013, Crump assigned plaintiff to gather newspaper articles for the Chief of Police and the Command Staff. Ex. 3 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 3") at 2. However, plaintiff failed to complete the assignment, and she was cited a few days later for "neglect of duty, insubordination and incompetence." Pl.'s Counter SOF ¶ 49; Def.'s Resp. SOF ¶49; see also Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6; Ex. 3 at 2. While plaintiff does not dispute that she failed to complete the assignment in question, she maintains that her inability to complete the assignment was the result of computer problems. Pl.'s Counter SOF ¶ 47; Bean Dep. at 67:11-69:10.

         On June 27, 2013, plaintiff was served with a Proposed Notice of Adverse Action stating that she was to be suspended for thirty-five days as a result of the April incident. Ex. 6 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 6") at 1. The decision to suspend plaintiff was upheld on July 11, 2013, and she began her suspension on August 12, 2013. Pl.'s Counter SOF ¶¶ 58, 61; Def.'s Resp. SOF ¶¶ 58, 61; Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6. On September 18, 2013, plaintiff returned to work. Pl.'s Counter SOF ¶ 68; Def.'s Resp. SOF ¶ 68.

         Plaintiffs Formal and Informal Complaints

         On April 30, 2013, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against MPD, alleging that she had been subject to unlawful age discrimination and retaliation in connection with previous suspensions that had been imposed upon her as well as other harassing treatment in the workplace. Pl.'s Counter SOF ¶ 50; Def.'s Resp. SOF ¶ 50; Ex. 9 to Def.'s Mot. [Dkt. # 16-1]. On July 22, 2013, Crump was interviewed regarding that EEOC complaint. Pl.'s Counter SOF ¶ 62; Def.'s Resp. SOF ¶ 62.

         Also, the parties do not dispute that plaintiff had previously filed an internal EEO complaint, and that during the week of April 16, 2012, the MPD EEO office interviewed her with regard to that complaint. Pl.'s Counter SOF ¶ 26; Def.'s Resp. SOF ¶ 26. Neither party provides any further information about the substance of that complaint.

         In addition, at some point in time while Crump was her supervisor, plaintiff complained to Crump that she felt "harassed, " prompting a meeting that included plaintiff, Crump, and Assistant Chief Alfred Durham. See Pl.'s Counter SOF ¶¶ 23, 25; Def.'s Resp. SOF ¶¶ 23, 25. Again, neither party provides any other details.

         The November 20, 2013 Supervisory Support Program Meeting

         On May 24, 2013, the Internal Affairs Bureau ("IAB") generated an automatic referral to place plaintiff in the Supervisory Support Program ("SSP") as a result of the October 2012 and April 2013 citations. Pl.'s Counter SOF ¶ 51; Def.'s Resp. SOF ¶ 51. SSP is an intervention program similar to placing an employee on a performance improvement plan. Pl.'s Counter SOF ¶ 52; Def.'s Resp. SOF ¶ 52.

         On June 11, 2013, Crump received notice that plaintiff had reached the SSP threshold, and she was directed to develop an SSP plan for plaintiff by August 30, 2013. Pl.'s Counter SOF ¶ 56; Def.'s Resp. SOF ¶ 56.[5] However, Crump did not complete or submit the required SSP Intervention Plan by August 30, 2013 as required, and she failed to do so over the next few months despite receiving notices that the plan was overdue. Pl.'s Counter SOF ¶¶ 67, 69; Def.'s Resp. SOF ¶¶ 67, 69.[6] Finally, on November 7, 2013, Meagher sent an email to Crump with a subject line reading, "Hello please call me when you can. We need to do Ms. Bean's SSP." Ex. AA to Pl.'s Opp. [Dkt. #20-1] ("Ex. AA").[7]

         On November 20, 2013, Meagher informed plaintiff by email that she was being assessed for an SSP plan and scheduled a meeting with her for the same day at 1:30 P.M. - a little more than an hour after the email was sent. Pl.'s Counter SOF ¶ 72; Def.'s Resp. SOF ¶ 72. Plaintiff arrived at the conference room where the meeting was to be held, but when she realized that no union representative was present, she left the conference room and emailed Meagher that she would "be happy" to meet with him as soon as a union representative was available. Pl.'s Counter SOF¶¶ 75-76; Def.'s Resp. SOF ¶¶ 75-76. In an investigative report about the events of November 20, Crump stated that she and Meagher approached plaintiff s desk at 1:45 P.M. to ask why plaintiff had not reported to the meeting room. Ex. 2 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 2") at 2. According to Crump, plaintiff "ignored Sgt. Meagher's directives, and refused to acknowledge him." Id.; see also Crump Dep. at 95:1-96:15. Plaintiff calls this account "untruthful." Bean Dep. at 54:19-55:5, 56:17-57:1.

         In any event, plaintiff returned to the meeting room at 2:00 P.M. with two union representatives. Pl.'s Counter SOF ¶ 78; Def.'s Resp. SOF ¶ 78. As plaintiff describes it, she was not presented with an assessment and performance plan, but she was asked questions about her "rent" and "personal living" instead. Bean Dep. at 46:12-18. Defendant disputes this and maintains that plaintiff answered "no comment" to every question posed by Meagher. Ex. 2 at 2.[8]

         After the meeting, Meagher lodged a complaint about plaintiffs conduct on November 20, and Crump handled the investigation into the allegations of plaintiff s insubordination. See Ex. 2 at 3. On December 27, 2013, Crump submitted a final investigative report concerning the events of that day, and she recommended that the investigation be forwarded to the Disciplinary Review Branch ("DRB") for its review and recommendation. Id. at 7. One month later, the final investigative report was forwarded to the DRB Director, Michael Eldridge, who recommended that plaintiff be terminated. Ex. 10 to Def.'s Mot. [Dkt. # 16-1] ("Ex. 10") at I.[9]

         On March 5, 2014, plaintiff received a Proposed Notice of Adverse Action advising her that she had been recommended for termination. Def.'s SOF ¶ 8; Pl.'s SOF ¶ 8; see Pl.'s Counter SOF ¶¶ 83, 87; Def.'s Resp. SOF ¶¶ 83, 87. On April 11, 2014, a Hearing Officer issued a final decision recommending that plaintiffs termination be upheld. Pl.'s Counter SOF ¶ 89; Def.'s Resp. SOF ¶ 89. A week later, plaintiff received a Notice of Adverse Action Hearing Officer's Decision informing her that the decision to terminate her had been sent to a Deciding Official from the DRB and that she could request an audience with the Deciding Official within seven days. Ex. GGtoPl.'sOpp. [Dkt. # 20-1]; see Pl.'s Counter SOF ¶ 91; Def.'s Resp. SOF ¶ 91. Although it is undisputed that plaintiff knew she was going to be terminated and ultimately retired, see Def.'s SOF ¶¶ 15-16; Pl.'s SOF ¶¶ 15-16; Pl.'s Counter SOF ¶ 96; Def.'s Resp. SOF ¶ 96, the exact date of her retirement is disputed. On approximately April 25, 2014, plaintiff submitted a notice of her intent to retire, which became effective as of May 2, 2014. Ex. HH to Pl.'s Opp. [Dkt. # 20-1] at DCBEAN00011003; Ex. 10. And on May 1, 2014, the Deciding Official upheld plaintiffs termination. Ex. E to Pl.'s Opp. [Dkt. # 20-1] at DCBEAN00007057.

         STANDARD OF REVIEW

         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 motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

         ANALYSIS

         Plaintiff claims in Count I that defendant discriminated against her on the basis of her age in connection with multiple suspensions and the recommendation for her termination. She alleges in Count II that defendant took these actions in retaliation for the fact that she made formal and informal complaints regarding alleged age discrimination. And in Count III, she claims that this mistreatment forced her to retire.

         There is no question that plaintiffs relationship with her supervisor was marked with conflict. Because plaintiff has provided some direct evidence of discriminatory statements made by Crump, the fact-finding must be left to the jury, and the Court will deny defendant's motion for summary judgment on Count I. But since defendant has come forward with evidence to show that plaintiff was disciplined and ultimately recommended for termination because of her poor job performance, and not for a retaliatory purpose, and plaintiff has failed to come forward with evidence to show that defendant's stated reasons were either pretextual or tainted by improper animus, the Court will grant defendant's motion for summary judgment on Count II. And because plaintiff has failed to provide any evidence that she was forced to retire as a result of intolerable working conditions, the Court will grant defendant's motion for summary judgment on Count III the constructive termination claim.

         I. The Court will deny defendant's motion for summary judgment on Count I alleging ADEA discrimination because plaintiff has produced sufficient direct evidence to entitle her to a jury trial.

         Plaintiff alleges that the District discriminated against her on the basis of her age in violation of the ADEA. The ADEA provides:

It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.

         29 U.S.C. § 623(a)(1). The ADEA protects "individuals who are at least 40 years of age." Id. § 631(a). To succeed on an ADEA discrimination claim, a plaintiff must prove that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the [adverse] action gives rise to an inference of discrimination." George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005), quoting Stella v. Mineta, 248 F.3d 135, 145 (D.C. Cir. 2002). The parties do not dispute that plaintiff was well over forty years of age at all relevant times. Pl.'s Counter SOF ¶ 9; Def's Resp. SOF ¶ 9. And defendant does not seem to challenge that plaintiff was subject to adverse employment actions. See Def's Mem. at 5-6; Pl.'s Opp. at 21; see also Def's SOF ¶¶ 4, 6; Pl.'s SOF ¶¶ 4, 6. So the only question is whether plaintiff has produced sufficient evidence to support a reasonable inference of discrimination.

         Courts analyze ADEA cases at the summary judgment stage under the same standard as Title VII cases. Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014). Accordingly, "[a]t the summary judgment stage, the operative question is whether the employee produced sufficient evidence for a reasonable jury to find that... the employer intentionally discriminated against the employee on the basis of age." Id. (internal quotations omitted).[10] Plaintiffs who are able to proffer direct evidence of discriminatory intent are generally entitled to a jury trial. Id.

         Direct evidence includes "a statement that itself shows . . . bias in the employment decision." Wilson, 753 F.3d at 247 (holding that an employer's statement that employees "didn't come here to work, [but] came here to retire, " was sufficient direct evidence for a reasonable factfinder to conclude that a discriminatory intent motivated the adverse employment action), quoting Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C. Cir. 2013); see also Ayissi-Etoh, 712 F.3d at 576 (reversing the grant of summary judgment because plaintiff had provided direct evidence of discrimination in the form of a racially charged statement made by his manager). But a stray remark, especially one made by a non-decision maker, or a statement made by a decision maker that is unrelated to the relevant employment decision itself, does not constitute direct evidence. Kalekiristos v. CTF Hotel Mgmt, 958 F.Supp. 641, 665 (D.D.C. 1997) (concluding there was no direct evidence of racial or national origin discrimination where plaintiff only provided evidence of vague statements that were, at most, insensitive), affd without op., 132 F.3d 1481 (D.C. Cir. 1997) (citation omitted); see also Steele v. Carter, 192 F.Supp.3d 151, 165 (D.D.C. 2016) (concluding there was no direct evidence of age discrimination where the speaker was not involved in plaintiffs termination and allegedly made the remarks at the very start of plaintiffs employment).

         Plaintiff has produced two statements that constitute direct evidence of age discrimination, entitling her to a jury trial. First, in plaintiff s February 13, 2013 OHR complaint, she alleged that Crump told her, "[t]he officers are faster than you, you need to work, work, work, " followed by:

         "[y]ou've been here so long when are you going to retire?" OHR Complaint. Second, in her deposition, plaintiff recounted the following incident:

Q: Okay. Let me ask you this, why were you terminated from MPD?
[Plaintiffs] A: I retired before they terminated me.
Q: Okay.
A: Because Ms. Crump had said that you have been wrote up [sic] three times.
And she was going to fire me, have me fired.
Q: She told you that ...

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