United States District Court, District of Columbia
DONATUS U. DURU, Plaintiff,
DISTRICT OF COLUMBIA, Defendant.
G. Sullivan United States District Judge
Donatus Duru (“Mr. Duru”) brings suit against
Defendant District of Columbia (“District” or
“D.C.”) after he was terminated from his position
as a Youth Development Representative (“YDR”) at
New Beginnings Youth Development Center. Mr. Duru alleges
that his national origin (Nigerian) motivated the
District's decision to terminate him, in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), as amended, 42 U.S.C. §2000(e), et
seq.; the District of Columbia Human Rights Act
(“DCHRA”), D.C. Code § 2-1401.01, et
seq.; and the Civil Rights Act of 1991, 42 U.S.C. §
1981(a) (“Section 1981”). He requests
compensatory damages and expenses, in addition to other
equitable relief including ordering the District to institute
anti-discrimination policies and procedures and Equal
Employment Opportunity Commission (“EEOC”)
supervisory training. Pending before the Court is the
District's motion for summary judgment. See
Def.'s Mot., ECF No. 25. The Court has carefully
considered the motion, the response and reply thereto, the
applicable law, and the entire record herein. The Court finds
that there is no genuine dispute as to any material fact, and
thus, for the reasons stated below, the District's motion
for summary judgment is GRANTED.
where indicated, the following facts are not in dispute. Mr.
Duru was born in Nigeria. Pl.'s Opp'n, ECF No. 39 at
1. In 1983, he moved to the United States and became an
American citizen in 1992. Pl.'s Dep., ECF No. 39-4 at
23:20-24:22. That same year, he began working for the D.C.
Department of Youth Rehabilitation Services
(“DYRS”) as a YDR. He served as a YDR for almost
thirty years until he was terminated in 2012. Id. at
DYRS is a D.C. agency that is “responsible for the
supervision, custody, and care of [detained] young people
charged with a delinquent act in the District . . . .”
DYRS Executive Summ., ECF No. 25-1. YDRs are responsible for
the “rehabilitation, direct supervision and active
positive engagement, and safety and security of youth in the
custody of DYRS.” Position Description, ECF No. 25-1 at
Ex. 2. A YDR is expected to adhere to the
“eyes-on-supervision policy, ” which requires
that a YDR “maintains ongoing visual contact with all
youth under supervision.” Policy #8-9.3, ECF No. 25-1
at Ex. 5. An YDR can only be removed for cause. Such causes
include neglect of duty, insubordination, incompetence,
misfeasance, and other employment-related reasons for which
adverse action is not arbitrary or capricious. D.C. Personnel
Regulations §§ 1603.2, 1603.3, ECF No. 25-1 at Ex.
3. In determining which, if any, adverse action is warranted
for a specific policy violation, DYRS utilizes
“progressive discipline, ” in which imposed
punishments become harsher as the severity of the infraction
and/or number of offenses increases. Table of Appropriate
Penalties, ECF No. 25-1 at Ex. 4. In “administering
progressive disciplinary action, ” “only the past
three years' [of] prior discipline can be used against an
employee. . . .” Test. of HR Specialist Ohler
(“Ohler Test.”), ECF No. 39-7 at 142: 9-14.
Mr. Duru's Disciplinary History
Mr. Duru contests the veracity of each documented violation
and whether the discipline imposed for each violation was
appropriate, it is uncontested that Mr. Duru was disciplined
for five separate incidents in the three years prior to his
termination. Pl.'s Opp'n, ECF No. 39 at 12-13 (not
denying his discipline record despite denying other
statements within the same paragraph); see generally
Id. at 29-30 (explaining previous violations); Pl.'s
Dep., ECF No. 39-4 (explaining each violation). First, in
September 2009, Mr. Duru received a counseling notice for
failing to report to his work post in a timely manner.
Pl.'s Opp'n, ECF No. 39 at 29. In his deposition, Mr.
Duru could not recall this incident. Pl.'s Dep., ECF No.
39-4 at 98:17-100:8. Second, in October 2009, Mr. Duru
received a three day suspension for sleeping on the job.
Pl.'s Opp'n., ECF No. 39 at 29. Mr. Duru contends
that this charge was fabricated. Id. Third, in March
2010, Mr. Duru received a nine-day suspension, for
unauthorized absence without official leave. Id. Mr.
Duru contends that this charge was not warranted because he
had contracted malaria while visiting Nigeria and was banned
from traveling back to the United States. Id. at
29-30. Fourth, on December 13, 2011, Mr. Duru received a
fifteen-day suspension for violating DYRS'
“eyes-on-supervision” policy. Pl.'s
Opp'n., ECF No. 39 at 12-13 (not denying his discipline
record despite denying other statements within the same
paragraph). Finally, on December 15, 2011, Mr. Duru was
terminated for violating DYRS'
“eyes-on-supervision” policy again. Id.
The final two disciplinary events, occurring on December 13,
2011 and December 15, 2011, are explained more fully below.
Mr. Duru's termination became effective on June 26, 2012.
See Resp. to Proposed Termination, ECF No. 25-1 at
Ex. 16; Hearing Findings, ECF No. 25-1 at Ex. 15.
The December 13, 2011 Incident
December 13, 2011, a “serious incident” occurred
while Mr. Duru and another YDR, Ms. Jacqueline Brown, were on
duty. Pl.'s Opp'n., ECF No. 39 at 8, ¶ 11.
Specifically, four DYRS youth residents entered the bathroom
at the same time and climbed into the ceiling, contrary to
DYRS policy. Id. ¶ 12. As a result, several
residents required medical attention and the ceiling was
damaged. Id. at 9, ¶¶ 17, 18. DYRS
conducted an investigation and prepared an incident report.
See Dec. 13 Incident Report, ECF. No. 25-1 at Ex. 7.
Both Ms. Brown and Mr. Duru were charged with violating
DYRS' “eyes-on-supervision” policy and with
neglect of duty, insubordination, and incompetence. Notice of
Suspension, ECF No. 25-1 at Ex.6; Notice to YDR Brown, ECF
No. 25-1 at Ex. 9. Mr. Duru received a fifteen-day suspension
and Ms. Brown received an official reprimand. Id.
The December 15, 2011 Incident
days later, on December 15, 2011, another “major
incident” occurred while Ms. Brown and Mr. Duru were
again on duty, along with a third YDR, Mr. Jeffrey Starkey.
Pl.'s Opp'n., ECF No. 39 at 10, ¶ 21. Adopting
Mr. Duru's version of events, two youth residents
assaulted a resident. Pl.'s Opp'n, ECF No. 39 at 2-4.
While Mr. Duru was breaking up that fight, two different
residents used a dissembled broom to assault another
resident. Id. at 3. At least one resident was taken
to the hospital to treat his injuries. Id.; OEA
Decision, ECF No. 39-8. DYRS again conducted an investigation
and prepared an incident report with witness statements. Dec.
15 Incident Report, ECF Nos. 25-1 at Exs. 12, 13.
Ms. Brown and Mr. Duru were again charged with violating
DYRS' “eyes-on-supervision policy” and with
neglect of duty, insubordination, incompetence, and
misfeasance. Notice of Proposed Removal, ECF No. 25-1 at Ex.
11; Notice on Suspension, ECF No. 25-1 at Ex. 14. Mr. Duru,
but not Ms. Brown, was also charged with negatively affecting
the integrity of the government. Id. Ms. Brown and
Mr. Duru were again disciplined-Mr. Duru was fired and Ms.
Brown was suspended for nine days. Id. YDR Starkey
was not disciplined for the incident. Pl.'s Opp'n,
ECF No. 39 at 34. In an affidavit, YDR Starkey states that he
had been on an approved break at the time of the incident,
while Mr. Duru argues that he had not been approved to leave
his station. Starkey Aff., ECF No. 25-1 at Ex. 18; Pl.'s
Opp'n, ECF No. 39 at 10-11, ¶ 23.
Mr. Duru's Termination
Duru was fired after the December 15, 2011 incident. Notice
of Proposed Removal, ECF No. 25-1 at Ex. 11. DYRS decided to
fire Mr. Duru after reviewing his disciplinary history and
conducting investigations of the two “serious”
December 2011 incidents. Ohler Test., ECF No. 39-7 at
144:20-145:13; Hearing Officer Findings, ECF No. 25-1 at Ex.
15 (“With each transgression, his sanctions increase
and his suitability to remain in the position of a [YDR] is
further called into question. The basis for this proposed
removal has been met.”).
Duru's removal was eventually overturned when Office of
Employee Appeals (“OEA”) Judge Dohnji found that
DYRS had not met its burden of proof. OEA Decision, ECF No.
39-8 at 14. Specifically, DYRS did not present sufficient
evidence that Mr. Duru violated the
“eyes-on-supervision” policy on December 15,
2011. Id. OEA Judge Dohnji found that Mr. Duru had
not violated the policy because he had been resolving the
first assault when the second assault occurred. Id.
Additionally, DYRS failed to prove that Mr. Duru was at fault
for not detecting the dissembled broom used in the second
assault. Id. at 13-14. On July 16, 2014, Mr. Duru
was reinstated and reimbursed for backpay, benefits lost, and
attorney's fees. Id. at 14.
Duru previously filed a charge of national origin
discrimination with the EEOC, which was cross-filed with the
D.C. Office of Human Rights. Pl. Opp'n, ECF No. 39 at 15,
Standard of Review
to Federal Rule of Civil Procedure 56, summary judgment
should 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); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). The moving party must identify
“those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the nonmoving
party must demonstrate that there is a genuine issue of
material fact. Id. at 324. A material fact is one
that is capable of affecting the outcome of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine dispute is one where “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Id. Further, in the summary
judgment analysis “[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be
drawn in his favor.” Id. at 255.
establish a viable national origin claim under Title VII, the
DCHRA, and Section 1981,  Mr. Duru must provide sufficient
evidence to establish that the District's
non-discriminatory justification for firing him was pretext
for its real, discriminatory reason. Under all three statutes, it
is unlawful for an employer to “discharge . . . or
otherwise to discriminate against any individual with respect
to his . . . employment, because of such individual's
race, color, religion, sex, or national origin.” 42
U.S.C. § 2000(e-2)(a)(1). There are “two essential
elements of a discrimination claim . . . (i) the plaintiff
suffered an adverse employment action [and] (ii) because of
the plaintiff's race, color, religion, sex, national
origin, age, or disability.” Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
plaintiff succeeds in proving the prima facie case by a
preponderance of the evidence, “the burden shifts to
the defendant to articulate some legitimate,
nondiscriminatory reason for the [adverse action].”
Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981) (internal citations and quotations
omitted). The employer's burden is therefore satisfied if
it “simply ‘explains what [it] has done' or
‘produc[es] evidence of legitimate nondiscriminatory
reasons.'” Id. at 256 (quoting Bd. of
Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 n.
2 (1978)). The defendant “need not persuade the court
that it was actually motivated by the proffered
reasons.” Id. at 254. Moreover, “it is
important to note” that although the “burden of
production [has shifted] to the defendant, the
ultimate burden of persuading the trier of fact ...