United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
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.
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. 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. The Court notes that, in its motion,
Symbral rests on a defense of law and not disputes of
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.
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,  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.
Events of May-June 2011
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].
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.
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.
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.
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.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.
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
Events of October 2011
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. 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.
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.
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.
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.
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
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.
STANDARD OF REVIEW
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).
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 ...