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Walker v. District of Columbia

United States District Court, District of Columbia

September 30, 2017

SHAVON T. WALKER, Plaintiff,



         Plaintiff, Shavon Walker, is a former employee of the District of Columbia Public Schools (“DCPS”), which is an agency of the Defendant, the District of Columbia (the “District” or “Defendant”). Plaintiff, who is African American, filed suit against Defendant, alleging that Defendant: (1) violated the District of Columbia Whistleblower Protection Act (“DC WPA”); (2) discriminated and retaliated against her on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); and (3) retaliated against her for engaging in activity protected under the Rehabilitation Act of 1972, 29 U.S.C. § 700 et seq. (“Rehabilitation Act”), and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12100 et seq. Presently before the Court is Defendant's [54] Motion for Summary Judgment.

         Upon consideration of the parties' submissions, [1] the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has raised a genuine issue of material fact as to her claims under the Whistleblower Protection Act and for retaliation under Title VII, but not for racial discrimination or retaliation under the ADA or the Rehabilitation Act. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART Defendant's [54] Motion for Summary Judgment. Specifically, the Court shall grant Defendant's Motion for Summary Judgment with regard to Plaintiff's racial discrimination claim pursuant to Title VII and her claim for retaliation under the ADA and the Rehabilitation Act, but shall deny Defendant's Motion for Summary Judgment with regard to Plaintiff's claim under the D.C. Whistleblower Protection Act and her claim for retaliation under Title VII.

         I. BACKGROUND

         A. Factual Background[2]

         As a preliminary matter, this Court notes that in the Background section of Plaintiff's Opposition, Plaintiff notes that “[a]ll facts in this background statement are drawn from the District's statement of undisputed [facts] if those facts are indeed undisputed, and otherwise from Ms. Walker's accompanying statement of genuine issues and statement of countervailing facts, ” without providing any cites to either party's statement of material facts Pl.'s Opp'n at 11 n.1. Nor does Plaintiff's argument in her Opposition provide cites to the statement of material facts or to the record evidence in this case. Rather, Plaintiff's Opposition to the Motion contains several narrative discussions by the Plaintiff, which are immaterial to the resolution of issues in this Motion.[3]

         Plaintiff's [60-1] Statement of Genuine Issues and Countervailing Facts is fifty-nine pages in length, and her response to the District's Statement No. 4 consists of numerous references to bates-stamped pages that were produced to the District but only provided in part to the Court as Exhibit D to Plaintiff's Opposition. Plaintiff's first countervailing “fact” (out of 178) is not a fact but a narrative that spans eight and one-half pages and includes numerous facts and citations to bates-stamped documents, many of which have not been produced as exhibits to the Plaintiff's Opposition and are therefore not part of the record available to this Court for purposes of determining Defendant's Motion.[4] Local Civil R 7(h)(1) permits the non-moving party to submit a statement of facts believed to be genuinely disputed, but those facts must be “concise” and shall include specific “references to the part of the record relied on” to support the statement. See LCvR 7(h)(1) (emphasis added). Plaintiff's lengthy chronology of events, presented as the first Countervailing Fact, does not comply with LCvR 7(h)(1) and is therefore stricken. The parties were warned in this Court's March 11, 2015 Scheduling and Procedures Order that “[t]he Court strictly adheres to the dictates of Local Rule 7(h), ” that statements of fact must be “short and concise” and that “the Court may strike papers not in conformity” with its rules. Scheduling and Procedures Order, ECF No. 11.

         Furthermore, as the District of Columbia Circuit has emphasized, “[Local Civil Rule 7(h)(1)] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)). In the instant case, Plaintiff's Statement of Genuine Issues and Countervailing Facts is unhelpful to the Court in setting forth the required background as certain key facts relating to the timing and substance of Defendant's alleged retaliatory conduct are not contained therein, nor do Plaintiff and Defendant always effectively distinguish between events that took place while Plaintiff was at McKinley Technical High School (“McKinley”) or at Shaw-Garnett Patterson Middle School (“Shaw”), or both, or cite to the correct portions of the record. Accordingly, contrary to its preferred practice, the Court shall in some instances cite directly to the exhibits on which the parties rely in their briefing rather than to their statements of material facts.

         Plaintiff, who is African-American, was employed as a Special Education teacher at McKinley beginning in 2005. Def.'s Stmt. ¶ 1. In her capacity as a Special Education teacher, Plaintiff worked with high functioning autistic students. Def.'s Stmt. ¶ 2. At the beginning of the 2011-2012 school year, Plaintiff was transferred to Shaw as a continuing special education teacher. Def. Stmt. ¶ 10. Plaintiff was informed that the autism program at McKinley was changing and that Shaw needed a special education teacher. Def.'s Stmt. ¶¶ 9, 10, 11. At Shaw, Plaintiff was assigned to teach a self-contained class of intellectually disabled students. Def.'s Stmt. ¶ 13. She worked there until her employment was terminated on August 8, 2013. Def.'s Stmt. ¶ 42.

         1. Plaintiff's Time at McKinley

         During her time at McKinley, Plaintiff made complaints about the school's alleged failure to provide special education students with required services or accommodations that fulfilled their individualized education programs. Def.'s Reply ¶ 4. More specifically, Plaintiff raised complaints regarding: inappropriate class sizes and groupings of students; not being able to obtain resources, including textbooks and classroom materials, and the support needed to teach effectively; and inadequate working conditions, including operating out of a classroom in the girl's locker room adjacent to the school's theater. Def.'s Reply ¶¶ 4, 5. Plaintiff claimed that she was denied certain assistive technology devices, a white board and textbooks that she needed for her students. Def.'s Stmt. ¶ 23. Plaintiff admitted however that she did not know what [resources and support] other [teachers] requested or received at other schools. Def.'s Stmt. ¶ 53. In fact, when asked whether the services were being provided at other schools, Plaintiff testified that “[she couldn't] speak to that because [she] wasn't at those schools.” Def.'s Stmt ¶ 52. Nor could Plaintiff speak to whether or not the purported lack of resources was due to budgetary constraints at the school. Def.'s Reply ¶ 30; see Def.'s Mot., Ex. 4 (Pl.'s April 4, 2016 Dep.) at 53:2-12.

         Plaintiff also complained about not being able to participate in certain training programs. Def.'s Reply ¶ 6. Plaintiff testified that she believed there was a racial element to the decision regarding who would receive training. See Pl.'s Mot., Ex. A (Pl.'s Dec. 22, 2015 Dep. at 126:1-126:8, 131:1-132:10, 133:5-134:5, 134:21-136:5, 136:20-137:7.)[5] Plaintiff did not however know whether only one teacher received the training that she was allegedly denied, and she did not know whether other black teachers were trained. See Def's Mot., Exhibit 1 (Pl.'s Dec. 22, 2015 Dep.) at 121:12-123:14.[6] According to Plaintiff, “the only reason why [she knew the [white] teacher received the training] [was] because [she] had regular conversations with her.” See Ex. A, Pl.'s Dep. at 125:11-20. Plaintiff's allegations that the denial of training was racially motivated is unsupported by Plaintiff's own statements, which are inconclusive as to who received training.

         Similarly, Plaintiff noted “different patterns of treatment” with regard to teachers in the autism cluster program when the teachers attended meetings, but she was unable to identify the schools or teachers. Def.'s Stmt. ¶ 19. Nor did Plaintiff know the Individualized Education Program (“IEPs”) of the students of the Caucasian teachers, and admittedly, all she knew was from what she saw at the meetings that took place and conversations she had with unidentified minority teachers. Def.'s Stmt. ¶ ¶ 20, 21. On November 17, 2010, at a meeting with Colleen Koval, the citywide head of DCPS's autism program, Ms. Koval threatened to have Plaintiff “written up.” Ex. 1's Dep. at 60:4-60:22 (where Plaintiff states that Ms. Koval threatened to write her up for a “task [that] wasn't completed in an electronic database”); Def.'s Mot., Ex. 2 (May 16, 2014 Amended Charge of Discrimination) at 1. On November 23, 2010, Plaintiff received a written reprimand by McKinley's Principal, David Pinder. Def.'s Reply ¶ 3; Def.'s Stmt. ¶ 33; Ex. 1 at 60:4-9. When asked whether the reprimand was the result of her raising concerns about lack of resources, Plaintiff testified that “I don't know why [Ms. Koval] - I can't speak to why it was influenced, I just know that it happened.” Ex. 1 at 62:3-15. Plaintiff does not assert that this reprimand had any effect on her employment or otherwise.

         In September 2011, Plaintiff was transferred to Shaw. Def.'s Stmt. ¶ 10. According to Mr. Pinder, Ms. Koval recommended that Ms. Walker's transfer from McKinley to Shaw because Shaw needed Ms. Walker's skill with autistic students. Pl.'s Stmt. ¶ 19. Plaintiff admits that “she was told that they needed additional support at Shaw Middle School, [t]hey needed to reallocate funds at the time, they didn't have a special education teacher who could oversee . . .students with . . . an intellectual disability at Shaw Middle School and so they needed someone to cover the classroom.” Def.'s Stmt. ¶ 11.

         2. Plaintiff's Time at Shaw

         At Shaw, Plaintiff was assigned to teach intellectually disabled students as opposed to working with students in the autism program. Def.'s Stmt. ¶ 13. Plaintiff's transfer to Shaw did not affect her teacher licensing. Def.'s Stmt. ¶ 55. Plaintiff ended up also taking extra students from another class and these students presented different disabilities from her intellectually disabled students. Def.'s Stmt. ¶ 12; Pl.'s Stmt. ¶ 27. Plaintiff concludes that she was given additional work in relation to a non-minority teacher.

         After her transfer to Shaw, Plaintiff continued to make complaints about the lack of resources available to implement the requirements of her students' IEPs. Def.'s Stmt. ¶ 14. Plaintiff indicated that “[d]uring the 2011-12 and 2012-13 school years at Shaw Middle School, resources, teaching caseloads and training opportunities were allocated unequally between white and minority teachers.” See Def.'s Mot., Ex. 5 (Pl.'s Answers and Objections to Interrogatories), Answer to Interrogatory 4. Plaintiff contends further that she made a protected disclosure by joining in a grievance with several other Shaw teachers concerning school safety and proper discipline. Def.'s Stmt. ¶ 17.

         At a February 15, 2012 IEP review meeting, Plaintiff informed a student's parent and attorney that the student was not receiving appropriate IEP services. Pl.'s Stmt. ¶ 3. On March 12, 2012, the Shaw Assistant Principal told Plaintiff that teachers could “not share any new IEP information with the [student's] attorney prior to the meeting.” Pl.'s Stmt. ¶ 4; Pl.'s Opp'n, Ex. K (Mar. 12, 2012 e-mail from Shaw Assistant Principal DeMatthews to Plaintiff). In a May 27, 2012 e-mail to Mr. DeMatthews, Plaintiff asserted that “information about [her] classroom and [her] students' progress as it pertains to [her] classroom should be topics [she] can freely discuss.” See Pl.'s Opp'n, Ex. L (5/27/2012 e-mail from Shavon Walker to David DeMatthews). Plaintiff testified that [sometime] after the IEP meeting, she noticed that her “evaluations [went] down significantly, ” and she was subject to “constant micromanaging” and put on a “leave restriction, ” and she was told to “follow a certain protocol if [she] wanted to take leave.” See Pl.'s Opp'n, Ex. B (Pl.'s Apr. 4, 2016 Dep.) at 65:14-68:1.

         On June 13, 2012, Plaintiff received a poor performance review, which she alleged was inconsistent with two other evaluations provided to her by the Special Education Master Educators at the Central District Office. Def.'s Stmt. ¶ 32; Pl.'s Stmt. ¶ 7; Ex. A at 107:1-108:4. Plaintiff's low evaluation placed a “step hold” on her pay. Pl.'s Stmt. ¶ 9.

         During the 2012-2013 school year, Plaintiff filed five complaints with the Labor Management and Employee Relations Division (“LMER”) of DCPS, dated: October 11, 2012; December 7, 2012; February 15, 2013; April 10, 2013; and May 20, 2013. Pl.'s Stmt. ¶ 21. During that school year, Plaintiff was alleged to have fraudulently completed an IEP for a student and submitted it as a finalized documents in EasyIEP, the IEP management system. Def.'s Stmt. ¶ 35. An investigation was initiated into the complaint about Plaintiff's alleged fraudulent activity. Def.'s Stmt. ¶ 37. Because Shaw was closing at the end of the 2012-2013 school year, all staff had to secure new employment elsewhere. Def.'s Stmt. ¶ 38. Plaintiff secured an offer of employment from Ludlow-Taylor Elementary School for the 2013-2014 school year. Def.'s Stmt. ¶ 39; see Ex. 5, Answer to Interrogatory No. 10; Pl.'s Opp'n, Ex. H (Details of Plaintiff's July 4, 2013 offer of employment from Ludlow-Taylor Elementary School). After the investigation was completed, a review board decided to terminate Plaintiff's employment with DCPS, effective August 8, 2013, before she commenced employment at Ludlow-Taylor Elementary School. Def.'s Stmt. ¶¶ 41, 42.

         B. Procedural History

         On or about June 19, 2012, Plaintiff filed a Charge of Discrimination (“Charge”) with the Equal Employment Opportunity Commission (“EEOC”). Def.'s Stmt. ¶ 44; Def.'s Mot., Ex. 8 (June 19, 2012 Charge of Discrimination). In that Charge, Plaintiff identified the following grievances from November 17, 2010 through June 13, 2012:

a. On September 2, 2011, Plaintiff was involuntarily transferred to Shaw Middle School as a Special Education Teacher- Autism.
b. On November 17, 2010, Colleen Koval, the Special Education Autism Program Manager (PM) for DC Public Schools (White), told her in a staff meeting, in front of her peers, that she was going to be written up.
c. On November 23, 2010, Plaintiff received a written reprimand.
d. In August 2011, she was denied her request for school resources she needed.
e. On April 10, 2012, she was placed on an unwarranted leave restriction.
f. On April 25, 2012, she was given a letter of reprimand.
g. On or about June 13, 2012, she was given a poor performance review which was inconsistent with two other evaluations provided by the Special Education Masters Educators at the Central District Office.

Def.'s Stmt. ¶ 45.[7]

         On or about May 16, 2014, Plaintiff amended her EEOC Charge of Discrimination. Def.'s ¶ 46; Ex. 2. In that Amended Charge, Plaintiff identified the following additional acts of alleged racial discrimination from October 2012 through December 2012:

a. [I]nequitable distribution of workloads, resources, and access to professional development opportunities among the races.

         Plaintiff also identified additional acts of racial discrimination as follows:

b. During the period February 2013 through August 2013, she participated in an unexpected investigation regarding a[n] [alleged] fraudulent IEP, and that the documentation regarding the investigation became part of her personnel file.
c. She received a low performance evaluation score because of the lack of direction provided to her on future tasks.

         Plaintiff identified additional acts of retaliation as follows:

d. In April 2013, she was suspended with no pay re: “negligence and dereliction of duties.”
e.. In April & May 2013, she was not paid for all medical leave taken despite providing medical notes.
f. In July 2013, she received a letter stating that her overall performance evaluation for the entire school year is not within an acceptable range to receive a pay increase.
g. In January 2014, her administrative appeal to the Chancellor regarding her performance evaluation scores was denied.
h. In March 2013, she was suspended for three days.
i. The IMPACT process was violated when her performance was not properly rated.
j. On August 8, 2013, she was notified that her employment was terminated.

Def.'s Stmt. ¶ 47; Pl.'s Resp. ¶ 47.[8]

         Plaintiff filed a lawsuit in the Superior Court of the District of Columbia on December 15, 2014. ECF No. 1-1. On January 14, 2015, this case was removed to this Court from the Superior Court of the District of Columbia. Plaintiff's Complaint alleges one count in violation of the DC W PA, one count o f racial discrimination and retaliation, in vio lat io n o f Tit le VII, and one count of retaliation for engaging in protected activity under the Rehabilitation Act and the ADA. See Amended Compl., ECF No. 1-1.

         While discovery was pending in this case, Plaintiff filed a motion to compel against the District on November 6, 2016, wherein she identified all the discovery produced by the District on which she requested court intervention.[9] See Pl.'s Mot. to Compel, ECF No. 24 (requesting information regarding training opportunities and support and benefits available to Plaintiff and to comparable DCPS employees in Interrogatories Nos. 5-7). The motion to compel was referred to Magistrate Judge G. Michael Harvey, who set a December 9, 2015 status hearing on the motion. On December 10, 2015, Magistrate Judge Harvey directed the parties to file a “joint notice with the Court, . . . articulating what, if any, issues raised in plaintiff's Motion to Compel [Dkt. 24] remain following the defendants' submission of amended responses to plaintiff's documents requests and its recent production to plaintiff of additional materials after entry of the protective order.” See December 10, 2015 Minute Order.

         On January 27, 2016, the parties filed a Joint Report regarding the status of the motion to compel, which indicated that Interrogatory No. 7 had been resolved but Interrogatories No. 5 and No. 6 were still unresolved or only partially resolved. The District claimed that it had “fully answered the interrogatories [5 and 6] as revised by Ms. Walker” and asserted that while Plaintiff alleged that answers were deficient, she had not demonstrated any deficiency. See Joint Report to the Court regarding the Status of the Motion to Compel, ECF No. 37, at 6. Accordingly, Magistrate Judge Harvey set a February 16, 2016 hearing on the remaining issues identified in the parties' Joint Report.

         In a Minute Order following the February 16, 2016 hearing, Magistrate Judge Harvey stated that “[b]y agreement of the parties reached at the hearing, defendant [was to] provide amended responses to a revised version of plaintiff's interrogatories 5 and 6 on or before February 23, 2016, which, if defendant complies, plaintiff agrees will resolve her motion with respect to those two interrogatories as well.” February 16, 2016 Minute Order. Magistrate Judge Harvey further noted that once defendant had provided amended responses to interrogatories 4, 5, and 6, and document request 31, “plaintiff agrees that all issues raised in her motion to compel will be resolved with the exception of her request that defendant pay plaintiff's legal fees and expenses incurred in bringing the motion.” Id. Plaintiff did not raise any issues about any contested discovery thereafter, even at the time she filed her motion for fees, which was granted in part in a [46, 47] Memorandum Opinion and Order.

         On July 1, 2016, this Court issued an Order finding that the parties had resolved all discovery-related issues, including those concerning “Defendant's answers to Plaintiff's interrogatories, ” and Plaintiff made no objection to that Order. See July 1, 2016 Order, ECF No. 46. Nor did Plaintiff indicate there was any outstanding contested discovery when the parties appeared before the Court, on September 8, 2016, to set a briefing schedule for dispositive motions. See September 8, 2016 Minute Order.

         After the close of discovery, Defendant filed its Motion for Summary Judgment, which is now fully briefed and ripe for resolution. See Def.'s Mot.


         Summary judgment is appropriate where “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 mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an ...

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