United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.
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]
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).
facts are not in dispute except where noted. 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.
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.
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 ¶¶
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. 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.
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").
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.
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.
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
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 ¶
Formal and Informal Complaints
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.
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.
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.
November 20, 2013 Supervisory Support Program
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.
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. 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. 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.
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.
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.
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.
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.
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 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).
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.
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
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.
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.
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
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). Plaintiffs who are able to
proffer direct evidence of discriminatory intent are
generally entitled to a jury trial. Id.
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
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:
been here so long when are you going to retire?" OHR
Complaint. Second, in her deposition, plaintiff recounted the
Q: Okay. Let me ask you this, why were you terminated from
[Plaintiffs] A: I retired before they terminated me.
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 ...