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Forkwa v. Symbral Foundation for Community Services Inc.

United States District Court, District of Columbia

March 12, 2018



          ROSEMARY M. COLLYER United States District Judge.

         Patrick Forkwa worked as an aide at a longterm care facility operated by the Symbral Foundation for Community Services, Inc., where he alleges that he suffered discrimination due to his sex and was retaliated against after he complained. After full discovery, Symbral moves for summary judgment in its favor, which the Court will grant for the reasons stated below.

         I. FACTS

         The facts in this matter originate from multiple sources. First, of course, is the Complaint, which was drafted by Mr. Forkwa with the advice of unidentified counsel.[1] Second, the Court reviews the discovery material and exhibits submitted by the parties through their respective motions, which include affidavits and Mr. Forkwa's own deposition testimony.[2] The Court notes that, in its motion, Symbral rests on a defense of law and not disputes of fact.[3]

         Mr. Forkwa, a native of Cameroon, came to the United States in 2005. Forkwa Dep. at 38:15-18. He began to work for Symbral in 2008. Forkwa Decl. [Dkt. 18-1] ¶ 2. Symbral provides housing and daily assistance to persons with significant mental disabilities, providing care in a number of different residences throughout the greater D.C. area. Def.'s Statement of Undisputed Facts (Def.'s SOF) [Dkt. 17-1] ¶ 1. Mr. Forkwa worked as a Relief Counselor, providing assistance, doing light housekeeping, making meals, and serving as a companion to Symbral's residents. Forkwa Decl. ¶ 2.

         In 2011, Mr. Forkwa worked in Symbral's “Benjee House” which housed two residents. Def.'s SOF ¶ 4. Mr. Forkwa was supervised there by House Manager Henry Glay, his immediate supervisor, and by Kendel Larose Paul, [4] Resident Manager, who was Mr. Forkwa's second-line supervisor. Larose Aff. [Dkt. 24-1] ¶ 2. Leon Mohammed was Symbral's Chief Operating Officer and, in 2011, acting Personnel Director. Mohammad Decl. [Dkt. 24] ¶ 2. Mr. Forkwa understood that Mr. Mohammed was the ranking official. Forkwa Decl. ¶ 3. Mr. Forkwa also worked as a part-time substitute teacher, on an on-call basis, with Montgomery County Public Schools (MCPS). Def.'s SOF ¶ 5; Forkwa Dep. 68:14-69:1.

         A. Events of May-June 2011

         On May 26, 2011, Mr. Forkwa was scheduled to work his normal shift between 4:00 and11:00 P.M. at Benjee House. Def.'s SOF ¶ 6. His coworker, Bih Mbanwi, was scheduled to relieve him at 11:00 p.m. Id. During the evening shift change, Ms. Mbanwi could not locate her own key to the Benjee House medicine cabinet, and Ms. Mbanwi and Mr. Forkwa argued over whether Mr. Forkwa was obligated to give Ms. Mbanwi his key. Id. ¶ 7. After that argument occurred-which is not disputed-the chain of events becomes murky; it appears that Mr. Forkwa may have initially refused to give Ms. Mbanwi his key, but relented after talking with Mr. Glay by phone. Forkwa Dep. 87:13-88:12. However, at that point Ms. Mbanwi refused to accept his key. See Def.'s SOF ¶ 10. Based on Mr. Forkwa's deposition testimony and the documentation submitted by the parties, apparently Mr. Forkwa left Benjee House without giving Ms. Mbanwi his key, although after having offered it to her. See Forkwa Dep. 88:12-89:10; Mbanwi Disciplinary Notice [Dkt. 17-5].

         A few hours later, in the early morning hours of May 27, 2011, one of the residents living in Benjee House, A.M., passed away. Def.'s SOF ¶ 11. Mr. Glay placed both Mr. Forkwa and Ms. Mbanwi, who had been the last caregivers to A.M., on administrative leave without pay (LWOP) while Symbral investigated his death. See Larose Decl. ¶ 6; Glay Decl. [Dkt. 17-6] ¶ 4.

         On June 6, 2011, Mr. Larose met with Ms. Mbanwi and provisionally reinstated her to work, warning her that she could still be discharged after investigation. Larose Decl. ¶ 8. On June 22, Mr. Larose met with Ms. Mbanwi again and terminated her employment. Id. ¶ 8. A few days later, Ms. Mbanwi met with Mr. Mohammad, to whom she had appealed her discharge. Mr. Mohammad reinstated Ms. Mbanwi, although Mr. Larose did not learn of this for several weeks. Id. ¶ 9; Mohammad Decl. ¶ 4.

         Mr. Forkwa was not provisionally reinstated in the same manner as Ms. Mbanwi; he remained on unpaid administrative leave from May 27, 2011 until his full reinstatement on June 22, 2011. Forkwa Decl. ¶ 5. Symbral states that this timing was due to scheduling conflicts between Messrs. Gray, Larose and Forkwa. Records from Montgomery County schools show that Mr. Forkwa worked as a substitute teacher, often for an entire school day, until June 11, 2011. See Def.'s SOF ¶ 19. No. records indicate what efforts Symbral undertook to meet with Mr. Forkwa prior to June 22. Id. ¶ 9.

         At an unspecified time during this period, Mr. Forkwa contacted Mr. Glay to complain that he remained on LWOP while female staff were working. Forkwa Dep. at 117:3-13. Mr. Forkwa alleges that he complained to Mr. Glay that he was being discriminated against, to which Mr. Glay allegedly responded that Mr. Glay “sympathizes with women.” Id. at 90:1-9.[5]Mr. Glay also told Mr. Forkwa during this period, possibly during the same conversation, that he “sympathize[d] with [Mr. Forkwa]” due to the death of A.M., for whom Mr. Forkwa had cared. Id. at 113:21-114:5. Ultimately, Mr. Forkwa alleges that he complained to Mr. Glay, Mr. Larose, and Mr. Mohammad of sex discrimination because he remained on LWOP. See Forkwa Decl. ¶ 4. On June 22, Mr. Glay met with Mr. Forkwa and gave him a disciplinary action notice that turned his period of LWOP into a disciplinary suspension. Def.'s SOF ¶ 22. The notice said that Mr. Forkwa was being suspended for the period between May 27 and June 22, 2011 for “declin[ing] to follow manager instruction;” “fail[ing] to communicate” and several other infractions. Forkwa 6/22/2011 Disciplinary Notice [Dkt. 17-5]. Mr. Forkwa returned to work immediately.

         Mr. Forkwa was also given a disciplinary notice in July 2011 for failure to turn in his time cards on time. Forkwa 7/12/2011 Disciplinary Notice [Dkt. 18-4]. He did not identify this discipline as either discriminatory or retaliatory until his opposition brief, see Pl.'s Opp'n [Dkt. 18] (Opp'n) ¶ 6, which is too late to be considered. See Williams v. Spencer, 883 F.Supp.2d 165, 181 n.8 (D.D.C. 2012) (“Where the . . . complaint does not make a claim, plaintiff cannot add a new claim through an opposition brief.”).

         B. Events of October 2011

         On October 27 in the same year, Symbral conducted a mandatory training session for its counselors at the Shepherd Library starting at 10:00 A.M. Compl. ¶ 11. Afterwards, a controversy ensued as to whether Mr. Forkwa had left this training early without leave or was released. Mr. Forkwa swears that he only left after Mr. Larose announced that individuals with medication licenses, which he possessed, could leave. Forkwa Decl. ¶ 9. Mr. Forkwa submits the Declaration of Kalin-Samlan Commelle, who attests that those with medication licenses were released about noon. See Commelle Decl. [Dkt. 18-6] ¶ 3. At one point during the training, perhaps after a break, Mr. Larose asked Mr. Glay to gather his staff into the meeting area. Glay Aff. ¶ 6. Learning from Mr. Glay that Mr. Forkwa was no longer at the Library, and believing that Mr. Forkwa had either not attended the mandatory training or had left early without permission, Mr. Larose met with Mr. Forkwa the next day, October 28, to discuss his non-attendance or early departure. Larose Decl. ¶ 12-13. Mr. Forkwa reminded Mr. Larose that he was at the training at the beginning-when he helped Mr. Larose to distribute materials-but Mr. Larose remained unconvinced that Mr. Forkwa had not left early without permission.[6] Mr. Forkwa states that Mr. Larose told him not to report to work. Forkwa Decl. ¶ 10. Mr. Forkwa then complained that certain female counselors did not attend the training session but were not being punished or left off the schedule. Id.

         The parties disagree about the precise sequence of events that followed, but agree generally as to the following: after his conversation with Mr. Larose, Mr. Forkwa called Mr. Mohammad to complain about not being allowed to work. Id. ¶ 11. After leaving several voice messages over the next few days, Mr. Forkwa reached Mr. Mohammad by phone and complained that he was being discriminated against. Id. ¶ 12. Mr. Mohammad met with Mr. Forkwa soon after to discuss his status and complaint. Mohammad Decl. ¶ 5. Sometime after that meeting-the exact date is contested-Mr. Mohammed told Mr. Forkwa that he could return to work at a different Symbral residence, called “Harmony House.” Forkwa Decl . ¶¶ 12-13. Mr. Forkwa does not appear to have had an objection to this transfer and may have sought it. See Id. ¶¶ 13-15; Def's SOF ¶ 29.

         However, Mr. Forkway says that he called but never heard back from Edith Glay, first-line supervisor of Harmony House (and wife of Mr. Glay), in his effort to make arrangements to work there. Forkwa Decl. ¶ 15. When he called again and reached Ms. Glay, Mr. Forkwa was told that the position been filled by another Symbral employee. Id. In contrast, Ms. Glay states that she spoke with Mr. Forkwa directly and arranged for him to arrive at Harmony House on a date and time certain for a training session. Edith Glay Decl. [Dkt. 17-10] ¶ 6. She further states that Mr. Forkwa had called to say that he was lost and that she gave him directions to Harmony House. Id. When Mr. Forkwa failed to arrive as scheduled, Ms. Glay informed Mr. Mohammed that he was a no-show. Id. ¶ 6-7. Ms. Glay and Mr. Mohammed both aver that Mr. Mohammed transferred another employee to the open position a few days later. Id. ¶ 8; Mohammed Decl. ¶ 8. The Court finds no material conflict in the evidence as the distinction is without a difference; the decision to fill the Harmony House position with another employee may have been made immediately, as Mr. Forkwa argues, while the actual transfer occurred days later.

         “[A]s soon as [he] got off the phone” with Ms. Glay, Mr. Forkwa called Mr. Mohammed to complain that Ms. Glay had failed to hold the job for him. Forkwa Decl. ¶ 16. Mr. Mohammed said he would look into it but on November 14, 2011, he informed Mr. Forkwa that “there was nothing that he could do to get him a work schedule.” Id. Mr. Forkwa has not worked for Symbral since October 2011.

         C. Procedural History

         Following the events of October and November 2011, Mr. Forkwa filed a complaint with the District of Columbia Office of Human Rights (DCOHR), alleging disparate treatment on the basis of sex and retaliation. Def.'s Reply Ex. 1, DCOHR No. Cause Finding Letter (DCOHR Letter) [Dkt. 20-1] at 1. The charge was cross-filed with the Equal Employment Opportunity Commission, alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Certain facts as they appear in the DCOHR Letter are different from those presented in the submissions to this Court, and not all arguments made before the DCOHR are made here. DCOHR issued its Letter finding No. Cause on September 4, 2014. The DCOHR Letter will be admitted for the limited purposed intended by Symbral, that is, to show that Mr. Forkwa did not complain that retaliation caused the June 2011 events or mention Mr. Glay's statement that he sympathized with women. The Court will not rely on DCOHR's analysis, but itself analyze the record evidence here.

         On November 4, 2015, Mr. Forkwa filed the instant Complaint. After discovery, Symbral filed its Motion for Summary Judgment on February 8, 2017. See Def.'s Mot. for Summary Judgment [Dkt. 17] (Def.'s MSJ). Now represented by counsel, Mr. Forkwa opposed, see Pl.'s Opp'n, and Symbral replied, see Def.'s Reply [Dkt. 20]. Mr. Forkwa also filed a Supplemental Memorandum soon after filing his Opposition, see [Dkt. 19], and Symbral submitted substitute declarations for Messrs. Mohammed and Larose, which simply added signatures and dates. See Supplemental Declarations [Dkt. 24]. The Court held oral argument on July 11, 2017, following which Mr. Forkwa submitted supplemental citations in response to questions posed by the Court at the argument. See Notice of Supplemental Citations [Dkt. 25]. The matter is now ripe for disposition.


         Symbral moves for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         In ruling on a motion for summary judgment, a court gives the non-movant the benefit of all permissible inferences that may be drawn from the facts alleged in the complaint, and accepts the nonmoving party's evidence as true. Anderson, 477 U.S. at 255; Talavera, 638 F.3d at 308. A nonmoving party, however, must establish more than “[t]he mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable ...

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