MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Plaintiff
Brian Watson was not hired by Defendant, the District of
Columbia Water and Sewer Authority (“DC Water”),
for an open Water Sewer Services 06 position. Plaintiff
claims that he was not hired for this position because
Defendant discriminated against him due to his
African-American race and because Defendant retaliated
against him for engaging in protected activity. Plaintiff
brings this lawsuit under Title VII of the Civil Rights Act
of 1964, Section 1981, and the District of Columbia Human
Rights Act (“DCHRA”). 42 U.S.C. § 2000e
et seq. (Title VII); 42 U.S.C. § 1981 et
seq. (Section 1981); D.C. Code §§
2-1401.01-1403.17 (DCHRA). Defendant has moved for summary
judgment, and Plaintiff has opposed the motion.
Upon
consideration of the pleadings, [1] the relevant legal
authorities, and the record as a whole, the Court shall GRANT
Defendant's [33] Motion for Summary Judgment. Plaintiff
failed to present evidence showing that Defendant's
legitimate, lawful reason for not hiring Plaintiff was
actually pretext for racial discrimination or retaliation. As
Plaintiff did not create a genuine dispute of material fact,
Defendant is entitled to judgment as a matter of law.
I.
BACKGROUND
Plaintiff,
an African-American man, began working at the DC Department
of Public Works, a predecessor to DC Water, in 1985.
Pl.'s Opp'n, ECF No. 34, Ex. A, 7. While working at
DC Water, Plaintiff had exemplary performance evaluations and
attendance, resulting in salary increases and an eventual
promotion to the position of Plumbing Worker, reading and
relocating water meters. Id. at Ex. A, 2, 6;
Id. at Ex. B, 13. After working at DC Water for
approximately fifteen years, in 2000, a new Caucasian
supervisor was appointed to oversee Plaintiff. Id.
at Ex. B, 11, 12, 25. Plaintiff contends that he complained
to the then-Acting Director of the Department of Water
Measurement and Billing that he was being harassed and that
his supervisor wanted to terminate him. Pl.'s Opp'n,
ECF No. 34, 3. Plaintiff also sought help from his union to
transfer, but his union was unable to help him. Id.
at Ex. B, 25.
In
response to the alleged harassment Plaintiff faced from his
new supervisor, Plaintiff resigned on January 9, 2002.
Id. at Ex. B, 38. However, the next day, Plaintiff
changed his mind and returned to work asking to rescind his
resignation. Id. at Ex. B, 8. Defendant did not
allow Plaintiff to rescind his resignation, claiming that it
had already processed the resignation. Id. at Ex. B,
8-9. Plaintiff contends that he knows of at least one other
employee that was allowed to rescind his resignation without
issue. Id. Plaintiff's Separation Personnel
Action Report indicated In an exercise of its discretion, the
Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See
LCvR 7(f).
that
Plaintiff had resigned, but it did not indicate whether or
not he was eligible for rehire. Id. at Ex. B, 37.
Following
his resignation, Plaintiff complained of his unfair treatment
to various DC Water employees and board members and to
District of Columbia Councilmembers. In these complaints,
Plaintiff requested help in getting his old job back, but he
did not ask to be hired for any specific, new positions.
Id. at Ex. B, 8-9, 13-15, 17-18, 26-27, 29, 30-36.
In 2013, Plaintiff joined a class action against Defendant
alleging racial discrimination. Id. at Ex. A, 44-51.
The class action settled later that year, and, in 2015,
Plaintiff received a settlement as a result of his
participation in the class action. Def.'s Mot., ECF No.
33, Ex. 1, 23.
On
February 6, 2015, Plaintiff wrote a letter to George Hawkins,
the General Manager of DC Water, asking for help being
reinstated to his old job. Pl.'s Opp'n, ECF No. 34,
Ex. B, 17. And, on May 28, 2015, Plaintiff's District of
Columbia Councilmember wrote a similar appeal to Mr. Hawkins
on Plaintiff's behalf. Id. at Ex. B, 19. Mr.
Hawkins replied to the councilmember, writing that “we
will be happy to look into this employment prospect.”
Id. at Ex. B, 20.
With
this assurance from Mr. Hawkins, Plaintiff applied for an
entry-level Water Services worker vacancy at the Grade 6
level in June 2015. Id. at Ex. A, 37-38. The
position required a high school degree and one year of
relevant experience. Id. at Ex. A, 30. There were
four open positions.
Defendant's
human resources department began screening qualified
applicants for the job on July 2, 2015. Id. On July
29, 2015, a recruiter, Albert Williams, emailed
Plaintiff's application and resume to the hiring manager,
Curtis Brown. For at least two months, Plaintiff's was
the only application that Mr. Brown received. Id. at
Ex. A, 63-64. However, in October 2015, a different
recruiter, Giselle Richardson, forwarded the applications for
an additional twelve qualified applicants to Mr. Brown.
Plaintiff's name was not on the new list. Id. at
Ex. A, 60-62. On October 28, 2015, Mr. Brown interviewed nine
candidates from that list and recommended five of them for
the position. Id. at Ex. A, 65-68. Ultimately, DC
Water offered the job to four of the candidates and one
served as an alternate. Def.'s Mot., ECF No. 33,
Declaration of Giselle Richardson, ¶ 13.
After
extending the offers, one of the four candidates failed his
background check and the alternative candidate declined the
offer. Id. at Declaration of Giselle Richardson,
¶ 14. With one position remaining open, in January 2016,
Defendant reposted the job opening. Id. at
Declaration of Giselle Richardson, ¶ 15. In March 2016,
Ms. Richardson sent Mr. Brown a list of five qualified
candidates for the open Water Services worker position, but,
again, Plaintiff's name was not on the list. Pl.'s
Opp'n, ECF No. 34, Ex. A, 33. Mr. Brown interviewed and
recommended three candidates, one of whom ultimately was
offered and accepted the job. Id. at Ex. A, 35-36.
In June
2016, Plaintiff filed a charge of discrimination against
Defendant with the Equal Employment Opportunity Commission
(“EEOC”). Plaintiff alleged that Defendant had
discriminated against him by not hiring him for the Water
Services worker vacancy on account of his race and in
retaliation for his past complaints. Id. at Ex. B,
2-6. The EEOC was unable to determine whether or not
Defendant had violated any laws in its treatment of
Plaintiff, and on July 21, 2016, Plaintiff received a notice
of his right to sue. Id. at Ex. B, 7. Plaintiff
timely filed suit in this Court on October 12, 2016. See
generally Compl., ECF No. 1. Plaintiff initiated this
suit pro se, but as of September 29, 2017, Plaintiff has been
represented by counsel. See generally Notice of
Appearance, ECF No. 24.
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 his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are
genuinely in dispute, or undisputed facts are susceptible to
divergent yet justifiable inferences, summary judgment is
inappropriate. Moore v. Hartman, 571 F.3d 62, 66
(D.C. Cir. 2009). 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
(internal citations omitted).
In
recognition of the difficulty in uncovering clear evidence of
discriminatory or retaliatory intent, the district court
should approach summary judgment in an action for employment
discrimination or retaliation with “special
caution.” Aka v. Wash. Hosp. Ctr., 116 F.3d
876, 879-80 (D.C. Cir. 1997), vacated on other
grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en
banc). Be that as it may, the plaintiff is not relieved
of his burden to support his allegations with competent
evidence. Brown v. Mills, 674 F.Supp.2d 182, 188
(D.D.C. 2009). As in any context, where the plaintiff would
bear the burden of proof on a dispositive issue at trial,
then 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). Otherwise, the
plaintiff could effectively defeat the “central
purpose” of the summary judgment device-namely,
“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.
RACIAL DISCRIMINATION CLAIMS
A.
Statutory Background
Plaintiff
brings his claims for racial discrimination under three
statutes: Title VII of the Civil Rights Act, Section 1981,
and the DCHRA. See generally Sec. Am. Compl., ECF
No. 18. All three statutes prohibit racial discrimination.
Title VII provides in relevant part that it is unlawful for
an 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.” 42 U.S.C. § 2000e-2(a)(1).
Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right
… to make an enforce contracts … as is enjoyed
by white citizens.” 42 U.S.C. § 1981(a). Under
this provision, an employer's actions may not be based on
the consideration of impermissible factors such as race.
See Domino's Pizza, Inc. v. McDonald, 546 U.S.
470, 474-76 (2006). And, finally, the DCHRA prohibits
employers from discharging or otherwise discriminating
against an individual with respect to the terms and
conditions of employment due to race. See D.C. Code
§§ 2-1401.01-1403.17. Because all three statutes
are analyzed using the same standards, the Court will address
together Plaintiff's claims under Title VII, Section
1891, and the DCHRA. Kidane v. Nw. Airlines, Inc.,
41 F.Supp.2d 12, 17 (D.D.C. 1999) (“[T]he same
standards apply in evaluating claims of discrimination and
retaliation under Title VII and § 1981”);
Deckwith v. Career Blazers Learning Ctr. Of Washington,
D.C., 946 F.Supp. 1035, 1048 (D.D.C. 1996) (“The
legal standards applicable to race discrimination are the
same under the DCHRA and § 1981.”); Ali v.
D.C. Gov't, 697 F.Supp.2d 88, 92 n.6 (D.D.C. 2010)
(explaining that claims under Title VII and the DCHRA are
analogous).
From
Plaintiff's Second Amended Complaint, it appears that
Plaintiff argues that he faced two adverse employment actions
on account of his race: Defendant's refusal “to
consider or hire him for positions for which he
qualified” and Defendant's placement of “a
designation in his personnel records that he was not eligible
for rehire following his complaints of discrimination during
and after his employment.” Sec. Am. Compl., ECF No. 18,
4-6. But, in his opposition to Defendant's motion,
Plaintiff refined his claim, alleging only that
“Defendant DC Water discriminated against him based on
his race … when it refused to consider him for an
entry-level Water Services worker position for which he
qualified.” Pl.'s Opp'n, ECF No. 34, 1.
Plaintiff's decision to refine his racial discrimination
claim to only one adverse action, Defendant's refusal to
consider Plaintiff for the Water Services worker position, is
appropriate as that is the only action that Defendant
committed within the claims period for the three statutes.
Under
Title VII, claimants are required to bring an EEOC complaint
within 300 days of the adverse action. See 42 U.S.C.
§ 2000e-5(e)(1). Mr. Watson filed his EEOC charge on
June 23, 2016, so any claims occurring more than 300 days
before that date, or before August 25, 2015, are time-barred.
The only action that Defendant committed involving Plaintiff
after August 25, 2015, is the rejection of Plaintiff from the
Water Services worker position. And, for claims brought under
Section 1981, a four-year statute of limitations applies.
See Jones v. R.R. Donnelly & Sons Co., 541 U.S.
369, 382 (2004). Mr. Watson filed his complaint in this Court
on October 12, 2016, so all claims prior to October 12, 2012,
are time-barred. Again, the only adverse action committed by
Defendant against Plaintiff within this time-frame is
Plaintiff's rejection from the Water Services worker
position. Finally, the DCHRA has a one-year statute of
limitations starting from the date that the plaintiff
discovered or reasonably should have discovered the
discriminatory act. See D.C. Code § 2-1403.16.
As Plaintiff brought his complaint on October 12, 2016, all
claims that Plaintiff discovered or reasonably should have
discovered prior to October 12, 2015, are barred. And, again,
the only adverse action occurring within this time-frame is
Defendant's rejection of Plaintiff from the Water
Services worker position.
Accordingly,
the only question before the Court pertaining to
Plaintiff's racial discrimination claim is whether or not
Defendant violated Title VII of the Civil Rights Act, Section
1981, or the DCHRA when it refused to hire Plaintiff for the
Water Services worker position.[2]
As
mentioned above, the Court uses the same standard for
assessing racial discrimination claims under Title VII,
Section 1981, and the DCHRA. Under this well-established
framework, a plaintiff must demonstrate by a preponderance of
the evidence that the actions taken by the Defendant were
“more likely than not based on the consideration of
impermissible factors” such as race. Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)
(internal quotation marks and citation omitted). In so doing,
“the plaintiff may prove his claim with direct
evidence, and absent direct evidence, he may indirectly prove
discrimination under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).” Brady v. Livingood, 456
F.Supp.2d 1, 6 (D.D.C. 2006), aff'd, Brady v. Office
of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008)
(internal quotation marks and citation omitted).
Direct
evidence of discrimination is sufficient alone to defeat a
defendant's motion for summary judgment. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)
(explaining that the McDonnell Douglas test is not
used where the plaintiff presents direct evidence of
discrimination); see also Ayissi-Etoh v. Fannie Mae,
712 F.3d 572, 576-77 (D.C. Cir. 2013). Here, however,
Plaintiff proffers no direct evidence that Defendant
discriminated against him on the basis of race.
In the
absence of direct evidence of discrimination based on race,
the McDonnell Douglas framework applies. Pursuant to
that framework, the plaintiff has the initial burden of
proving by a preponderance of the evidence a prima facie case
of discrimination. Burdine, 450 U.S. at 252-53. For
a claim alleging racial discrimination with respect to
employment, a plaintiff makes out a prima facie case by
showing (1) that he is a member of a protected group; (2)
that he suffered an adverse employment action; and (3) that
the adverse action gives rise to an inference of
discrimination. Royall v. Nat'l Ass'n of Letter
Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C. Cir. 2008).
Once a plaintiff makes out a prima facie case, “the
burden shifts to the defendant ‘to articulate some
legitimate, nondiscriminatory reason for the [adverse
action].'” Burdine, 450 U.S. at 253
(quoting McDonnell Douglas Corp., 411 U.S. at 802).
If the defendant is successful, then the plaintiff must prove
by a preponderance of the evidence that the “legitimate
reasons offered by the defendant were not its true reasons,
but were pretext for discrimination.” Id.
In
Brady v. Office of Sergeant at Arms, the D.C.
Circuit simplified the analysis for racial discrimination
suits. 520 F.3d at 494. Under Brady, once an
employer has proffered a legitimate, nondiscriminatory
reason, the McDonnell Douglas burden-shifting
framework disappears, and the court must simply determine
whether the plaintiff has put forward enough evidence to
defeat the defendant's proffer of a legitimate,
non-discriminatory reason and support a finding of
discrimination. See id. (“[W]here an employee
has suffered an adverse employment action and an employer has
asserted a legitimate, non-discriminatory reason for the
decision, the district court need not-and should not
-decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas.” (emphasis in
original)). Ultimately, “[f]or purposes of summary
judgment, the operative question … is whether
‘the employee produced sufficient evidence for a
reasonable jury to find that ... the employer intentionally
discriminated against the employee on the basis of
race.'” Ayissi-Etoh, 712 F.3d at 576
(quoting Brady, 520 F.3d at 494). In other words,
once a defendant has stated a legitimate, non-discriminatory
reason for the adverse employment action, the question
“becomes whether, based on the totality of the
parties' evidence, a reasonable jury could determine that
the defendant's proffered explanation was pretext for
discrimination.” Kilby-Robb v. Duncan, 77
F.Supp.3d 164, 169 (D.D.C. 2015) (citing Brady, 520
F.3d at 494-95).
B.
Analysis
1.
Defendant's Legitimate, Non-Discriminatory
Reason
Defendant
argues in its motion for summary judgment that it had a
legitimate, nondiscriminatory reason for not hiring Plaintiff
for the Water Services worker position-it hired other
qualified individuals with recent, relevant work experience.
Defendant's recruiter selected qualified candidates whose
applications showed recent, relevant work experience from the
pool of applicants. The recruiter sent those qualified
candidates to the hiring manager, who interviewed some of the
candidates and made offers to those who expressed an
understanding of the position. Def.'s Mot., ECF No. 33,
Declaration of Curtis Brown, § 12-15. “Selecting a
pool of qualified candidates based upon their written
credential and then making a final selection based upon
personal interviews is an obviously reasonable method of
hiring a professional employee.” Fischbach v. D.C.
Dep't of Corr., 86 F.3d 1180, 1183-84 (D.C. Cir.
1996). According to Defendant, Plaintiff was not refused the
job because of his race, but, instead, because other,
qualified candidates were given the job.
Generally,
DC Water applicants are screened by the human resources
department recruiters based on the job description, skills,
and qualifications for the position. Def.'s Mot., ECF No.
33, Ex. 3, Deposition of Albert Williams, 8.[3] Those applicants
who meet the minimum qualifications are then sent to the
hiring manager who selects candidates to interview.
Id. at Ex. 3, Deposition of Albert Williams, 8-9.
But, there are exceptions to this general process. In
situations where there are a large number of applicants, the
recruiters will not send every qualified ...