United States District Court, District of Columbia
SHAVON T. WALKER, Plaintiff,
DISTRICT OF COLUMBIA, Defendant.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
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  Motion for Summary Judgment.
consideration of the parties' submissions,  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  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.
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
[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. 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.
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.
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.
Plaintiff's Time at McKinley
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.
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.) 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. 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
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
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.
Plaintiff's Time at Shaw
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.
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.
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.
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.
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.
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
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
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
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.
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
a. [I]nequitable distribution of workloads, resources, and
access to professional development opportunities among the
also identified additional acts of racial discrimination as
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
c. She received a low performance evaluation score because of
the lack of direction provided to her on future tasks.
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
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
Def.'s Stmt. ¶ 47; Pl.'s Resp. ¶
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.
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. 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.
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
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.
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.
the close of discovery, Defendant filed its Motion for
Summary Judgment, which is now fully briefed and ripe for
resolution. See Def.'s Mot.
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.
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