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Duru v. District of Columbia

United States District Court, District of Columbia

April 9, 2018

DONATUS U. DURU, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Background

         Except 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 25:21-26:4.

         The 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.

         A. Mr. Duru's Disciplinary History

         While 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.[1] 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.

         B. The December 13, 2011 Incident

         On 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.

         C. The December 15, 2011 Incident

         Two 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.

         Both 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.

         D. Mr. Duru's Termination

         Mr. 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.”).

         Mr. 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.

         Mr. 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, ¶ 28.

         III. Standard of Review

         Pursuant 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.

         IV. Analysis

         To establish a viable national origin claim under Title VII, the DCHRA, and Section 1981, [2] 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.[3] 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).

         If the 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 ...


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