United States District Court, District of Columbia
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Torrain Kelly was employed as a teacher and administrator at
Richard Wright Public Charter School for four years. In
February 2016, he suffered injuries from a car accident that
left him unable to work for several months, during which time
he took medical leave. He asserts that from the beginning of
his leave, he had trouble communicating with the school and
its Chief Executive Officer, Dr. Marco Clark, about the
conditions and duration of his leave. In June 2016, Kelly was
ready to return to work. But he struggled to get a straight
answer from Clark about when he could resume his position.
And on June 30, the school informed Kelly that they would not
offer him a job for the following school year.
brings claims under the federal Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601 et seq., the District
of Columbia Family and Medical Leave Act (DCFMLA), D.C. Code
§ 32-503 et seq., and the District of Columbia
Human Rights Act (DCHRA), D.C. Code § 2-1401.01 et
seq. He claims that the school and Clark (collectively,
“Defendants”) interfered with his right to take
FMLA leave in a variety of ways,  and, by eliminating his
position shortly after his FMLA leave expired, both
retaliated against him and discriminated against him on the
basis of his sex. Both parties have moved for summary
judgment. For the reasons explained below, the Court will
grant Defendants' Motion for Summary Judgment, ECF No.
20, and deny Kelly's Corrected Cross-Motion for Summary
Judgment, ECF No. 67.
I.Factual and Procedural Background
August 2012, Kelly was hired as a physical education and
health teacher at the school. Pl. Facts ¶ 1. In June
2013, he left his teaching job when he was promoted to one of
the school's “dean of students” positions.
Id. ¶ 2. Throughout his tenure, he also was the
school's football coach. Id. On February 20,
2016, Kelly was hospitalized after a car accident. Def Facts
¶¶ 3-4. He was discharged from the hospital the
next day, but he remained under his doctor's supervision
and was unable to work. Id. ¶ 14.
texted Clark and other school employees about his predicament
on the morning of February 21. Pl. Facts ¶ 5. After
receiving no response from Clark, Kelly called and texted him
again that evening. Id. Clark texted Kelly back,
acknowledging Kelly's injuries and his need to take time
off. Id. Earlier that same day, around 1:00 p.m.,
Clark had sent an email to all school administrators,
including Kelly. ECF No. 67-2, Ex. 2. That email read, in
I sit in overall dismay that I have to write this letter to a
group of professionals. . . . Unfortunately I am still
addressing proper business attire, professional
responsibilities/etiquette and meeting deadlines with
leaders. . . . Over the next several months I will be closely
evaluating the work of each of you. . . . Effective
immediately! Any leader that needs to be off for any reason
must be cleared by me. If you are AWOL without my clearance
it will be non paid and subject to disciplinary action
inclusive of termination.
March 7, 2016, with Kelly still unable to return to work,
Clark discussed Kelly's accident with a human resources
specialist. Def. Facts ¶ 7. The human resources
specialist emailed the school's FMLA policy and request
form to Kelly that day. Id. ¶ 8. Kelly tried
several times to return the completed form to the school; the
school acknowledged receiving it on March 28, 2016.
Id. ¶¶ 11-12; Pl. Facts ¶ 11.
the same time, Kelly sent multiple requests to the school to
use his accrued paid leave while he was recovering. Def.
Facts ¶ 15; Pl. Facts ¶ 15. His pay stub at the
time indicated that he had accrued 546 hours of paid leave.
Pl. Facts ¶ 66. By Defendants' account, Kelly's
request to use this leave prompted the school to notice that
the amount of accrued paid leave reflected on his pay
stub-and that of every other non-teaching employee-was too
high. Def. Facts ¶¶ 24-25. Although the
school's leave policy imposed a cap on how many hours of
paid leave could roll over from one academic year to the
next, the non-teaching employees' pay stubs reflected
hours well above what that cap allowed. Id.
¶¶ 26-32. Therefore, in April 2016, the school
corrected the amount of paid leave reflected on Kelly's
pay stub to 240 hours. Id. ¶¶ 33, 35. A
few months later, in July 2016, the school similarly
corrected the accrued leave amounts for the school's
other non-teaching employees. Id. ¶ 34. Kelly
denies that the downward adjustment of his paid leave was
based on school policy, although he offers no specific facts
that suggest another reason for the change. See Pl.
Facts ¶¶ 24-34. Ultimately, according to
Defendants, the school authorized Kelly to take the maximum
amount of paid leave permitted by the policy, plus two weeks.
Def. Facts ¶ 35; ECF No. 67-3, Ex. 12(j).
remained on FMLA leave for the rest of the school year. Def.
Facts ¶ 21. His FMLA leave expired on June 10, 2016.
Def. Mot. at 11. On June 14, 2016, his doctor approved his
return to work. Def. Facts ¶ 23. By Kelly's account,
he emailed Clark and the human resources specialist on June
14 and again on June 24 about arranging his return to work,
but received no response. Pl. Mot. at 14-15. He went to the
school on June 27 and found his office emptied; he also
learned that he had been replaced as the football coach.
Id. at 15. He spoke with Clark on the phone while at
school, and Clark told him to leave and to arrange a meeting
to discuss his return to work. Id. at 16-17. Clark
denied that he was terminating Kelly. Id. at 17.
to Defendants, the school began having financial trouble in
2015, which led Clark and other senior administrators to
discuss cutbacks. Def. Facts ¶ 36. These discussions
continued through the spring of 2016. Id. ¶ 37.
Not wanting to eliminate any teaching positions, they decided
to eliminate duplicative administrative positions.
Id. ¶¶ 38-39. At the time, Kelly held one
of two “dean of students” positions at the
school. Id. ¶¶ 2, 42. The other
“dean of students, ” a woman, had held that
position at four different schools and had 30 years of
experience. Id. ¶¶ 42-43. Because of her
greater experience and lower salary, Defendants assert, they
decided to eliminate Kelly's position instead of hers.
Def. Mot. at 3. Kelly denies this account of the school's
decision to eliminate his position, but points to no specific
facts that call it into question. See Pl. Facts
1, 2016, the school sent Kelly an email informing him that he
would not be offered a position for the upcoming school year.
ECF No. 67-3, Ex. 12(m). The email read, in part: “Due
to staff consolidations because of budget restrictions, [the
school] will no longer have two Deans on staff. Therefore,
there is not a position to offer you for next year.”
September 16, 2016, Kelly filed this lawsuit. ECF No. 1.
Defendants moved for summary judgment, ECF No. 20, and Kelly
cross-moved, ECF No. 27. Subsequently, Defendants moved to
dismiss the Complaint on sovereign immunity grounds. ECF No.
40. The Court denied the motion to dismiss because Defendants
had waived that affirmative defense by failing to raise it in