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Hicks v. District of Columbia

United States District Court, District of Columbia

March 30, 2018

PAUL HICKS, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         Plaintiff Paul Hicks is an African American who was in his mid-sixties when Defendant District of Columbia terminated his job as Director of Medicaid Audits in the Office of the Inspector General. He does not accept Defendant's argument that he was fired because of alleged poor performance. Rather, Plaintiff argues that his dismissal was attributable to his race, his age, and retaliation for his insistence that Defendant comply with certain alleged reporting obligations for Defendant's alleged violations of Medicaid regulations.

         Defendant presently seeks summary judgment as to all of Plaintiff's claims. Upon consideration of the briefing and evidence, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS-IN-PART and DENIES-IN-PA RT Defendant's Motion for Summary Judgment, ECF No. 32.[2] The Court grants summary judgment to Defendant on Plaintiff's retaliation claims under the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. (2017), federal False Claims Act, 31 U.S.C. §§ 3729 et seq. (2016), and District of Columbia False Claims Act, D.C. Code §§ 2-381.01 et seq. (2017). The jury must decide Plaintiff's claims of age discrimination under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (2016), and of racial discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (2016).

         The Court also shall address a motion buried within Plaintiff's Opposition papers. With Defendant's consent, the Court GRANTS Plaintiff's Motion to Seal Certain Exhibits Which Accompany Defendant's Motion and Plaintiff's Opposition Thereto, ECF No. 33-5. Defendant's Exhibits 1, 3, 4, 5, and 9 attached to Defendant's Motion for Summary Judgment, ECF No. 32, shall be placed under seal pursuant to the parties' Protective Order, ECF No. 28. Plaintiff's Exhibits B, D, K, L, M, N, O, T, and aa, which accompany his Opposition to Defendant's Motion for Summary Judgment, ECF No. 33, also shall be placed under seal pursuant to the parties' Protective Order. The parties are reminded that documents subject to the parties' Protective Order must be filed in accordance with Local Civil Rule 5.1(h) and Paragraph 17 of that Protective Order in order to receive the benefit of sealing during the pendency of any motion to seal.

         I. BACKGROUND

         A. Factual Background

         The Court identified many of the facts of this matter when it decided Defendant's motion to dismiss Plaintiff's claims under the federal False Claims Act and District of Columbia False Claims Act. See Mem. Op. and Order, ECF No. 19, at 6-9. The Court presently shall set forth certain material facts that are supported by uncontroverted evidence now in the record.[3] Further facts, many of which are disputed, shall be addressed as necessary in pertinent portions of this Memorandum Opinion.

         Plaintiff served as an auditor in the District of Columbia's Office of the Inspector General (“OIG”). Pl.'s Ex. K, ECF No. 33-16, at 1.[4] On September 27, 2010, OIG offered Plaintiff a promotion to Director of Medicaid Audits, an at-will position within OIG's Management Supervisory Service, and Plaintiff accepted the following day. Def.'s Initial Stmt. ¶¶ 1-2. While Director of Medicaid Audits, Plaintiff's job description included, inter alia, “scheduling and completing performance audits, estimating workloads and capability of staff, . . . [and] making adjustments in staff and workload to meet firm deadlines for special projects.” Id. ¶ 3; Def.'s Ex. 2, ECF No. 32-4, at 064. He served in that position until August 15, 2014. See Def.'s Ex. 9, ECF No. 32-4, at 013.

         Plaintiff was assigned the “Medicaid State Plan/Program Integrity” audit in September 2012. Def.'s Initial Stmt. ¶ 23. Among other audit reports for which Plaintiff was responsible during his employment was the “Nursing Home Performance and Administrative Salaries” audit. Pl.'s Stmt. ¶ 39; Pl.'s Ex. G, ECF No. 33-12, at 1 (citing various audits for which Plaintiff was director).

         On September 15, 2013, Defendant provided Plaintiff with an annual performance evaluation for the period October 2, 2012, through September 30, 2013.[5] Def.'s Initial Stmt. ¶ 4; Def.'s Ex. 3, ECF No. 32-4. Notwithstanding the parties' competing interpretations of this evaluation, it is clear that some language is complimentary of Plaintiff's performance and other language is critical of his performance. See generally Def.'s Ex. 3, ECF No. 32-4. In addition to ratings in specific areas, the review gave Plaintiff an “Overall Summary” rating of “3 Valued Performer, ” specifically 3.15 out of 5.00. Id. at 049; Def.'s Initial Stmt. ¶ 9. The review also noted that “[d]uring this rating period at the Mid-Year period [Plaintiff] was operating in a satisfactory manner.” Def.'s Ex. 3, ECF No. 32-4, at 049. The record contains a second version of this report showing Plaintiff's signature and a handwritten indication that it was “[r]eviewed and [a]cknowledged” on December 30, 2013. Def.'s Ex. 4, ECF No. 32-4, at 041; see also Def.'s Initial Stmt. ¶ 10 (making uncontested point that he read and signed evaluation).

         In an April 2013 debrief regarding the Medicaid State Plan/Program Integrity audit, upper-level management and Plaintiff discussed the fact that Medicaid payments had not been suspended to certain healthcare providers who were under investigation for fraudulent activity by Defendant's Medicaid Fraud Control Unit (“MFCU”). Pl.'s Stmt. ¶ 29. Management disagreed with Plaintiff's assertion that this fact should be included in his audit report. Id.; Def.'s Reply Stmt. ¶ 29.

         In October 2013, an employee of Defendant's Department of Healthcare Finance (“DHCF”) emailed Plaintiff a list of providers whom DHCF had referred to MFCU for investigation but to whom payments were not suspended.[6] Def.'s Initial Stmt. ¶ 24. Also in October 2013, Plaintiff discussed with Ron King, Assistant Inspector General for Audits (“AIGA”), Plaintiff's belief that Medicaid payments to healthcare providers under investigation by MFCU should have been suspended. Pl.'s Stmt. ¶ 30; Def.'s Reply Stmt. ¶ 30. Plaintiff also discussed the payment non-suspension issue during meetings on October 21 & 22, 2013, and on December 2, 2013, with Susan Kennedy, Assistant Inspector General for the MFCU. Pl.'s Stmt. ¶ 32; Dep. of Paul Hicks at 84:9-12, Pl.'s Ex. E, ECF No. 33-10. At least one of those meetings included Mr. King, who voiced his concern with the inclusion of the payment non-suspension issue in the Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶ 32.

         The record contains a December 13, 2013, letter from Charles Willoughby, the District of Columbia Inspector General (“IG”), to Wayne Turnage, the Director of the DHCF, “to inform [the latter] of a serious concern that Susan Kennedy, Director of the Medicaid Fraud Control Unit (MFCU), has brought to my attention about suspension of Medicaid providers after they have been referred to the MFCU for investigation.” Def.'s Ex. 13, ECF No. 32-4, at 0482. Mr. Willoughby reported Ms. Kennedy's finding “from DHCF personnel that no providers referred by DHCF to the MFCU in FY 2013 have had payments suspended.” Id. at 0483. The letter also discusses federal Medicaid regulations regarding payment suspension and DHCF's efforts pursuant to a “good cause” exception therein. Id. Non-suspension was particularly concerning, the IG wrote, because of a January 2013 “CMS Comprehensive Program Integrity Review Draft Report” that documented the District of Columbia's failure “to suspend $59 million in payments for providers referred to the Medicaid Fraud Control Unit (“MFCU”) for investigation.” Id. at 3 (internal quotation marks omitted).[7]

         During the first quarter of 2014, Plaintiff again discussed the payment non-suspension issue with OIG officials, first on March 11, 2014, during the “AIGA's Weekly Directors' Meeting, ” and then on April 10, 2014, in a meeting that included Mr. King and LaDonia Wilkins, Deputy AIGA.[8]Id. ¶¶ 33-34; see also Pl.'s Ex. U, ECF No. 33-26, at 1 (referring to Ms. Wilkins as “DAIGA”). Discussion at these meetings also included the Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶¶ 33-34. Mr. King directed Plaintiff to remove the payment non-suspension issue from the draft Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶ 34; Def.'s Reply Stmt. ¶ 34. Plaintiff argued during at least one meeting with Mr. King that the Government Accountability Office's (“GAO”) Government Auditing Standards and 42 C.F.R. § 455.23 dictated that the payment non-suspension issue should be included in the Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶ 35; Def.'s Reply Stmt. ¶ 35. Mr. King disagreed that the cited C.F.R. provision was applicable. Pl.'s Stmt. ¶ 35; Def.'s Reply Stmt. ¶ 35.

         On May 16, 2014, M r. King issued a memorandum that revoked Plaintiff's alternative work schedule (“AW S ”), effective May 19, 2014. Def.'s Initial Stmt. ¶ 11; Def.'s Ex. 5, ECF No. 32-4, at 020.[9] The memorandum stated that “Paul Hicks has been rated in his mid term [sic] performance review as unsatisfactory based on 5 audit reports that have been long term in process and are required to be issued by September 30, 2014.” Def.'s Ex. 5, ECF No. 32-4, at 020.

         On approximately June 3, 2014, a draft Medicaid State Plan/Program Integrity audit report was submitted to Ms. Wilkins. Pl.'s Stmt. ¶ 37. A draft Nursing Home Performance and Administrative Salaries audit report also was submitted by July 22, 2014. Id. ¶ 40.[10]

         During a “Special Called Meeting of [OIG's] Audit Division Management Team, ” on July 23, 2014, Ms. Wilkins indicated that she convened directors in order to “discuss the serious state of current audit deliverables, how we get through the current situation, and how we move forward from this point.” Def.'s Initial Stmt. ¶ 12; Def.'s Ex. 6, ECF No. 32-4, at 0250. According to a summary of that meeting, Ms. Wilkins

noted that communications prior to now had not been fully open and honest, that the review work by directors has not been enough to prevent the current situation, and that the quality of the reports is not what it should have been, given the amount of time and money spent to perform these audits.

Def.'s Ex. 6, ECF No. 32-4, at 0250. Immediately following this point, under the header “Current Situation, ” the summary continues by stating that “[t]wo audits, Nursing Home Performance and Medicaid State Plan/Program Integrity, are so problematic that Mr. King is considering not issuing them, ” but that Ms. Wilkins “stated that she believes that we should release them in some manner.” Id. While Ms. Wilkins “stated that we all are at fault, in some way, in terms of the work that we have been performing, ” “Director Paul Hicks took responsibility for the condition of the reports in question and the actions that led us to this point.” Id. Two other OIG directors would each “carefully review” one of those two reports and “later today provide their recommendations to Ms. Wilkins and Mr. King. Mr. King will decide whether or not to issue the reports.” Id. at 0250-0251. The remainder of the meeting summary, including the “Moving Forward” section, does not specifically name any other directors or reports but instead refers generally to what “directors” or “we” need to do. See Id. at 0251 (stating, e.g., “we can't continue to take more than a year to complete audits”).

         The following day, a memorandum from Kenneth Bates, a senior auditor, sent “thru” Plaintiff to Mr. King and Ms. Wilkins on July 24, 2014, indicated a decision to cancel the Nursing Home Performance and Administrative Salaries audit report. That memorandum stated in entirety:

After careful consideration and review of the documentations gathered during the audit fieldwork of project No: 11-1-20HT - Nursing Home Performance and Administrative Salaries, and additional consideration of administrative matters, we have decided to terminate this project. As a result, an audit report will not be issued on this project.

Pl.'s Stmt. ¶ 42; Pl.'s Ex. J, ECF No. 33-15.

         The Medicaid State Plan/Program Integrity audit report also was cancelled, on an unspecified date. Pl.'s Stmt. ¶ 38 (stating only that “[s]ometime in June or July of 2014, Defendant cancelled the Medicaid State Plan Audit”); see also Pl.'s Ex. I, ECF No. 33-14 (“Open Audit Status Report Update” from “AIGA's Weekly Directors' Meeting” on July 29, 2014, listing audits without referencing the Medicaid State Plan/Program Integrity or Nursing Home Performance and Administrative Salaries audit reports).

         Finally, in a July 31, 2014, letter from Blanche Bruce, Interim Inspector General, Defendant terminated Plaintiff's employment, without explanation, effective August 15, 2014. Def.'s Initial Stmt. ¶ 22; Def.'s Ex. 9, ECF No. 32-4, at 013. That letter also indicated that Plaintiff would be placed on administrative leave until the effective date of his termination and that he should “immediately” return property issued to him as a government employee. Id.

         B. Procedural History

         Plaintiff brought this suit on October 27, 2015. Compl., ECF No. 1. The Amended Complaint, filed on December 22, 2015, presents a claim of racial discrimination under Title VII of the Civil Rights Act of 1964, as amended; a claim of age discrimination under the Age Discrimination in Employment Act of 1967, as amended (“ADEA”); a claim of retaliation under the federal False Claims Act (“FCA”); a claim of retaliation under the District of Columbia False Claims Act (“DCFCA”); and a claim of retaliation under D.C. Code § 1-615.51 et seq., which codifies the District of Columbia's Whistleblower Protection Act (“D C W PA ”). Pl.'s First Am. Compl., ECF No. 10 (“Am. Compl.”), Plaintiff claims in his Amended Complaint that he had exhausted his administrative remedies under Title VII and the ADEA by filing with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the D.C. Office of Human Rights on May 4, 2015, and receiving a Notice of Right to Sue from the EEOC on August 3, 2015. See Am. Compl. ¶ 9. Defendant does not contest this assertion.

         On April 28, 2016, the Court denied Defendant's Motion to Dismiss Counts 3 & 4 of the Amended Complaint, finding that Defendant had not shown that Plaintiff failed to state FCA and DCF C A claims as to which relief could be granted. See Mem. Op. and Order, ECF No. 19, at 13.

         Upon the conclusion of discovery, the Court set a briefing schedule for Defendant's currently pending motion.

         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 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.

         In 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 assertion of fact or fails to properly address another party's assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

         When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255. “If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal quotation marks omitted). In the end, the district court's task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

         In recognition of the difficulty in uncovering clear evidence of discriminatory intent, the district court should approach summary judgment in an action for employment discrimination with “special caution.” Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997) (internal quotation marks omitted), reh'g en banc granted, opinion vacated, 124 F.3d 1302 (D.C. Cir. 1997) (en banc); see also Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007) (citing Aka, 116 F.3d at 879-80). The same standard arguably applies to retaliation claims. See Walker v. District of Columbia, 279 F.Supp.3d 246, 258 (D.D.C. 2017) (Kollar-Kotelly, J.) (taking “special caution” in DCWPA case). Be that as it may, “a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence.” Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C. 2009) (quoting Calhoun v. Johnson, No. CIV. A. 95-2397 (PLF), 1998 WL 164780 (D.D.C. Mar. 31, 1998)) (internal quotation marks omitted). As in any context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, at the summary judgment stage he bears the burden of production to designate specific facts showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary judgment device-name l y, “to weed out those cases insufficiently meritorious to warrant . . . trial”-simply by way of offering conclusory allegations, speculation, and argument. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

         III. DISCUSSION

         A. Claims Under Title VII and the Age Discrimination in Employment Act

         The Court shall consider Plaintiff's Title VII and ADEA claims together, because they share a common analytical framework and, in this case, overlapping sets of facts. See Etokie v. Duncan, 202 F.Supp.3d 139, 148-49 (D.D.C. 2016) (citing Baloch v. Kempthorne, 550 F.3d 1191, 1197 n.2, 1200 (D.C. Cir. 2008) (applying common framework)), aff'd sub nom. Etokie v. D e Vo s , No. 16-5243, 2017 WL 3725634 (D.C. Cir. May 31, 2017); see also Baloch, 550 F.3d at 1196 (specifically identifying common elements of Title VII and ADEA claims); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996) (assuming in absence of any dispute that Title VII framework articulated in McDonnell Douglas applies to ADEA claim).

         1. Analytical Framework for Racial and Age Discrimination Claims

         Title VII of the Civil Rights Act makes it unlawful for any employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2016). Similarly, the ADEA does not permit any employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1) (2016).

         Where there is no direct evidence of discrimination, Title VII and ADEA claims are assessed pursuant to the burden-shifting framework originally set forth by the Supreme Court for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. To allege a prima facie case of discrimination, a plaintiff must show that he “is a member of a protected class, ” that he “suffered an adverse employment action, ” and that “the unfavorable action gives rise to an inference of discrimination.” Youssef v. F.B.I., 687 F.3d 397, 401 (D.C. Cir. 2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)).

         Once the plaintiff has made a prima facie case, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [employment action that is challenged].'” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting McDonnell Douglas, 411 U.S. at 802). Once an employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework disappears, and the court is left to determine whether the plaintiff has put forth enough evidence to defeat the defendant's proffer and support a finding of discrimination. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008); Woodruff, 482 F.3d at 530.

         At the summary judgment stage, courts may consider plaintiff's prima facie case, evidence presented by the plaintiff to rebut the employer's explanations for actions taken, and any additional evidence of discrimination that the plaintiff might proffer. See Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012); Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (noting that, to avoid summary judgment, a plaintiff need not submit evidence “over and above” that necessary to rebut the employer's stated reason (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc)) (internal quotation marks omitted)). A plaintiff's disagreement with or disbelief in an employer's explanation cannot alone “satisfy the burden of showing that a reasonable jury could find that the employer's asserted reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.” Burton v. District of Columbia, 153 F.Supp.3d 13, 58 (D.D.C. 2015). Rather, the plaintiff must put forward enough evidence that “a reasonable jury not only could disbelieve the employer's reasons, but also could conclude that the employer acted, at least in part, for a prohibited reason.” Id. (quoting Walker v . Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015)) (internal quotation marks omitted).

         2. Plaintiff Adequately Rebuts Defendant's Articulated Rationale for Adverse Employment Actions

         “The record contains no direct evidence of discrimination-for example, a statement that itself shows [age or] racial . . . bias in the decision-that would generally entitle a plaintiff to a jury trial.” Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011). Plaintiff raises only one instance of a direct reference to his age, and no such instances referring to his race. Dep. of Paul Hicks at 61-63, Pl.'s Ex. E, ECF No. 33-10. In his deposition, Plaintiff commented that Mr. King, Plaintiff's intermediate supervisor in the OIG, “made comments to my receiving social security and having bags of money because of my double retirement on more than one occasion.” Id. at 62:6-8. Neither Plaintiff nor Defendant provides any further context to these conversations.

         Without more, the “bags of money” comments are not enough to qualify as direct evidence of age discrimination. “Direct evidence does not include stray remarks in the workplace, particularly those made by non-decision makers or statements made by decision makers unrelated to the decisional process itself.” Steele v. Carter, 192 F.Supp.3d 151, 165 (D.D.C. 2016) (quoting Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 12 (D.D.C. 2000), aff'd 298 F.3d 989 (D.C. Cir. 2002)), aff'd in part, appeal denied in part sub nom. Steele v. Mattis, No. 16-5236, 2017 WL 2332608 (D.C. Cir. Feb. 21, 2017); see also Reply Mem. at 16 (same). Whether or not Mr. King could be considered a decision maker, Plaintiff does not claim that the “bags of money” comments specifically pertained to Defendant's decision to revoke his AWS privileges or terminate his employment. Yet, the Court certainly considers such comments in deciding whether there is a genuine dispute as to the material facts supporting Plaintiff's age discrimination claim.[11] See Steele, 192 F.Supp.3d at 165 (citing Morris v. McCarthy, 825 F.3d 658, 670 (D.C. Cir. 2016) (urging consideration of “isolated race-based remark” together with other evidence)).

         Because there is no direct evidence in support of Plaintiff's age and race discrimination claims, the Court shall turn to circumstantial evidence. That inquiry invites the burden-shifting analysis under McDonnell Douglas. Plaintiff is an African American who was 66-years-old at the time of his termination. Pl.'s Aff., ECF No. 33-4, ¶¶ 1-2; Pl.'s Ex. K, ECF No. 33-16, at 1. There is no dispute that he falls within protected classes under Title VII and the ADEA. See, e.g., Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005) (recognizing African American as member of Title VII protected class); 29 U.S.C. § 631(a) (2016) (establishing 40 years of age as threshold for ADEA protections).

         Plaintiff experienced two instances of what could be considered adverse employment actions, namely the revocation of his AWS privileges on May 16, 2014, and his termination on July 31, 2014, effective August 15, 2014. Def.'s Initial Stmt. ¶¶ 11, 22; Pl.'s Stmt. ¶¶ 11, 22; Def.'s Ex. 9, ECF No. 32-4, at 013. In this Circuit, “adverse employment action” is defined for purposes of Title VII as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (emphasis added) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)) (internal quotation marks omitted). In the absence of dispute, the Court shall assume, arguendo, that the revocation of Plaintiff's A W S privileges is a significant change in employment status, akin to a decision causing a significant change in benefits.

         The only disputed element of Plaintiff's prima facie case is any causal connection between Defendant's adverse employment actions and Plaintiff's status as a member of protected classes under Title VII and/or the ADEA. At this summary judgment stage, the Court “‘need not-and should not-decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas, ' where (1) ‘an employee has suffered an adverse employment action, ' and (2) ‘an employer has asserted a legitimate, non-discriminatory reason for the decision.'” Burton, 153 F.Supp.3d at 57 (quoting Brady, 520 F.3d at 494). Accordingly, bearing in mind the adverse employment actions described above, the Court shall turn directly to Defendant's alleged rationale for those actions.

         The parties go to some lengths in detailing their disagreement over Plaintiff's performance. The Court shall focus here on the highlights. Defendant justifies its adverse employment actions by pointing to evidence tending to suggest that Plaintiff's audit reports were not produced in a timely fashion, see, e.g., Def.'s Ex. 3, ECF No. 32-4, at 046 (performance review stating “[Plaintiff's] written products have taken an extremely long period of time for the reports to be finalized.”);[12] he failed to supervise an employee to the point that she did nothing for two years, Dep. of Ronald W. King at 130:16-21, 131:1-21, Pl.'s Ex. F, ECF No. 33-11 (“[I]t was implied to me that she was working and, later on, it was found out that she was not doing anything for two years.”); and he failed to review his draft reports in Team Mate, an internal system for managing drafts of audit reports, see Dep. of Paul Hicks at 39:17-22, 40:1-20, Def.'s Ex. 7, ECF No. 32-4 (“[W]ith the exception of Medicaid state plan, I reviewed my audits in Team Aid [sic].”).[13]Plaintiff challenges each point, identifying evidence that the other audit directors also were delayed in producing their reports and that different types of audits take different amounts of time, see, e.g., Dep. of Roy Simmons at 46:2-21, Pl.'s Ex. R, ECF No. 33-23 (describing differing lengths of time by size and complexity of audit, and an average period that at one point was approximately 15 months and at another was approximately 30 months); Pl.'s Ex. aa, ECF No. 33-32, at 04119 (performance review of another supervisory auditor indicating that “she is not timely with her products and could better manage her people, projects, and time”); he did supervise the relevant employee, who did in fact work during that time period at issue, Dep. of Paul Hicks at 36:3-22, 37:1, Def.'s Ex. 7, ECF No. 32-4 (describing the employee's role doing research and data mining); Dep. of Roy Simmons at 66:8-16, Pl.'s Ex. R, ECF No. 33-23 (confirming Plaintiff's supervision of the relevant employee); and although he admittedly did not use Team Mate for one of his audit reports, the Medicaid State Plan/Program Integrity audit, it was not loaded in Team Mate, he reviewed that report in paper form anyway, and other audit directors allegedly were not fully compliant in their Team Mate usage either, see, e.g., Dep. of Paul Hicks at 40:15-22, 41:1-12, Pl.'s Ex. E, ECF No. 33-10 (affirming review of this report in paper format); id. at 38:16-19, 39:12-14 (“Q. Ms. Loudin was accused of refusing to use Team Aid [sic] and poorly supervising subordinates? A. That is what I know firsthand.”); Dep. of Roy Simmons at 35:15-22, 36:1, Pl.'s Ex. R, ECF No. 33-23 (“It was a problem for all directors to, in a timely manner, review work papers” in Team Mate.). The Court also observes evidence in the record that the employee whom Defendant says did no work for two years remained employed at OIG for years after Plaintiff's termination. See Dep. of Roy Simmons at 65:4-21, 66:1-7 (stating unequivocally in 2017 deposition that “[s]he still currently works there”).

         Other evidence as well tends to show that Defendant's performance rationale fails to account for certain key facts. In particular, the performance reviews Plaintiff did receive included significant amounts of positive feedback. His 2011-2012 annual performance review shows that he received an overall rating in the “Competencies” section of 4.40/5.00, [14] making him a “4 Highly Effective Performer, ” and in some specific areas, “5 Role Model.” See Pl.'s Ex. B, ECF No. 33-7, at 039-041. While Defendant points to constructive criticism in the 2012-2013 review, that review contains primarily positive feedback, together with the overall finding that he is considered a “3 Va lued Performer.” See Def.'s Ex. 3, ECF No. 32-4, at 11-17. Notwithstanding any mixed message that a rating of three on a five point scale may suggest, elsewhere Defendant defines a rating of “Valued Performer” as showing that the ...


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