United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
an age discrimination and retaliation case brought by an
employee of the District of Columbia Department of Employment
Services (“DOES”). Plaintiff John Kangethe, who
is representing himself pro se, alleges that he was
passed over for a promotion on the basis of his age and as
retaliation for earlier discrimination complaints.
Specifically, Plaintiff alleges that he was not selected to
fill an Associate Director position with the Office of Labor
Market Research and Information (“LMI AD
Position”). He also alleges that he was retaliated
against when he was denied leave to attend the deposition of
a party to a prior discrimination lawsuit. Plaintiff brings
this lawsuit against the District of Columbia under the Age
Discrimination in Employment Act (“ADEA”), the
District of Columbia Human Rights Act (“DCHRA”)
and Title VII of the Civil Rights Act (“Title
the Court is Defendant District of Columbia's  Motion
for Summary Judgment. Defendant claims that it is entitled to
summary judgment for two reasons. First, Defendant argues
that Plaintiff cannot establish his prima facie case
with respect to his claim that he was denied leave, because
this alleged denial did not constitute an “adverse
action.” Second, Defendant argues that Plaintiff has
not rebutted Defendant's proffered legitimate
non-discriminatory reason for not selecting Plaintiff for the
LMI AD Position.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court DENIES
Defendant's motion. First, the Court finds that a
reasonable jury could conclude that Defendant's failure
to approve Plaintiff's request for leave in a timely
fashion, thereby denying him the opportunity to prepare for
the deposition of a key witness to his earlier discrimination
lawsuit, was sufficiently adverse to be actionable. Second,
although a close call, the Court finds that Plaintiff has
offered enough evidence to rebut Defendant's proffered
non-discriminatory reason for not selecting him for the LMI
AD Position and that it would be inappropriate for the Court
to summarily adjudicate that claim.
John Kangethe is approximately 61 years old. Def.'s Stmt.
of Material Facts not in Dispute, ECF No. 30
(“Def.'s Stmt.”), at ¶ 1. He is a Labor
Economist at DOES. Id.
Denial of Plaintiff's Request for Leave
April 7, 2014, Plaintiff submitted a request to take eight
hours of leave from work on April 9, 2014 so that he could
prepare for and attend the deposition of a key witness to a
prior discrimination lawsuit that he had filed against the
District of Columbia. Id. ¶ 39; Depo. of John
Kangethe, ECF No. 30-19 (“Pl.'s Depo.”), at
6:15-20, 21:18-21. The deposition was scheduled for 3:30 pm.
Def.'s Stmt. ¶ 37. Having received no response to
his request by the morning of the ninth, Plaintiff reported
to work. Id. ¶¶ 42-43. He e-mailed his
supervisor reminding him of his request and notifying him
that he would be taking off four hours in the afternoon.
Id. Plaintiff still got no response, but he went to
the deposition. Id. ¶ 45. Plaintiff's
supervisor later claimed to have forgotten to respond to
Plaintiff's request and e-mail. Id. ¶ 47.
The supervisor did not charge Plaintiff with leave for the
four hours of work he missed on the afternoon of the ninth.
Id. ¶ 49. However, Plaintiff did not take the
four hours of leave he had requested on the morning of that
day that he had intended to use to prepare for the
deposition. Pl.'s Depo. at 21:18-21.
The LMI AD Position
vacancy announcement for the LMI AD Position was issued on
May 6, 2014 (“Vacancy No. 25001”). Def.'s
Stmt. ¶ 6. DOES Human Resource specialist Lachelle Savoy
conducted an initial review and scoring of the applications
that were submitted and decided which applicants were
sufficiently qualified. Id. ¶ 3; see also
generally Depo. of Lachelle Savoy Rogers, ECF No. 30-17
(“Savoy Depo.”). One of the factors Ms. Savoy was
required to consider when scoring applications was whether
the applicant had “five years of specialized experience
in supervisory or project coordination assignments involving
a staff of professional economists or researchers, and
experience in conducting economic analyses and studies
regarding highly complex and sophisticated issues.”
Def.'s Stmt. ¶ 22.
applied to Vacancy No. 25001. Id. ¶ 6. Ms.
Savoy testified that she scored Plaintiff's application
and that his score was beneath the threshold required for
further consideration. Savoy Depo. at 29:10-12. Ms. Savoy
testified that she was unable to score Plaintiff any higher
than she did because his application did not contain a
resume. Id. at 29:19-31:20. In particular, she
testified that the absence of a resume rendered her unable to
assess whether Plaintiff had the requisite experience in
supervisory or project coordination assignments. Id.
at 16:8-20, 29:19-31:20. Plaintiff contends that this is
false-he testified that he did submit a resume and that Ms.
Savoy had more than enough material to determine
Plaintiff's experience. Pl.'s Depo. at 24:9-17.
Vacancy No. 25001 was cancelled after no one had been chosen
for the position for sixty days. Savoy Depo. at 33:2-14.
a vacancy announcement for the same LMI AD Position was
re-posted on August 11, 2014 (“Vacancy No.
25461”). Def.'s Stmt. ¶ 14. It is undisputed
that Plaintiff did not submit an application for Vacancy No.
25461. Id. ¶ 7. Saidou Diallo, an economist
employed at DOES who is much younger than Plaintiff, did
submit an application and was selected for the position.
Id. ¶¶ 16-17.
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 ...