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Kangethe v. District of Columbia

United States District Court, District of Columbia

November 20, 2017

JOHN KANGETHE, Plaintiff
v.
THE DISTRICT OF COLUMBIA Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This is 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 VII”).

         Before the Court is Defendant District of Columbia's [30] 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.

         Upon consideration of the pleadings, [1] 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.

         I. BACKGROUND

         Plaintiff 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.

         A. Denial of Plaintiff's Request for Leave

         On 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.

         B. The LMI AD Position

         A 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.

         Plaintiff 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.

         However, 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.

         II. LEGAL STANDARD

         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 ...


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