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Watson v. D.C. Water and Sewer Authority

United States District Court, District of Columbia

November 15, 2018

BRIAN WATSON, Plaintiff,
D.C. WATER & SEWER AUTHORITY, et al., Defendants.



         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.


         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).


         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 ...

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