United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
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
presently seeks summary judgment as to all of Plaintiff's
claims. Upon consideration of the briefing and evidence,
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.
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
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.
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. Further facts, many of which are
disputed, shall be addressed as necessary in pertinent
portions of this Memorandum Opinion.
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. 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.
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).
September 15, 2013, Defendant provided Plaintiff with an
annual performance evaluation for the period October 2, 2012,
through September 30, 2013. 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
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.
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. 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.
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).
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.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.
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
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.
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. ¶
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
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.
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).
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.
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.
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.
the conclusion of discovery, the Court set a briefing
schedule for Defendant's currently pending motion.
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.
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).
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).
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).
Claims Under Title VII and the Age Discrimination in
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).
Analytical Framework for Racial and Age Discrimination
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).
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)).
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.
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).
Plaintiff Adequately Rebuts Defendant's Articulated
Rationale for Adverse Employment Actions
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
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. 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)).
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).
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.
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.
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.”); 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].”).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
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,  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 ...