MEMORANDUM OPINION
AMIT
P. MEHTA UNITED STATES DISTRICT COURT JUDGE
I.
In
October 2016, the Gaylord Hotel terminated Plaintiff Cesar
Parada Torres-a member of Defendant Unite Here Local 25's
bargaining unit-for leaving his work station, striking a
colleague named Ms. Byrd with two pieces of bread at her work
station, and threatening her to “take it
outside.” Def.'s Mot. for Summ. Judg., ECF No. 45
at 3-22 [hereinafter Def.'s Facts], [1]¶¶ 56,
68.[2]
Defendant represented Plaintiff at the first-step grievance
hearing with the Gaylord Hotel and advocated that Plaintiff
“be returned to work with full back pay and no loss of
seniority.” Id. ¶ 91. After Gaylord
denied the first-step grievance, Defendant decided against
further representing Plaintiff in mediation, the next phase
of the disciplinary review process. Id. ¶ 112.
It based its decision on several factors, including
Plaintiff's three disciplinary issues in the prior
eighteen months (including two separate instances of yelling
at a coworker and using profanity at a coworker), video
evidence and witness testimony of the altercation with Ms.
Byrd that did not corroborate Plaintiff's version of
events, and the fact that Plaintiff confronted Ms. Byrd at
her work station. Id. ¶¶ 97, 99, 102, 105,
106.
On July
30, 2017, Plaintiff filed a charge of discrimination against
Defendant with the U.S. Equal Employment Opportunity
Commission for its decision not to further represent him in
mediation against the Gaylord Hotel. See Id. ¶
138. He alleged race, national origin, and age
discrimination, and asserted that Defendant “did
nothing for me, but worked hard on behalf of [Ms. Byrd] and
succeeded in getting her reinstated to her job.”
See Id. ¶ 139; see also Notice of
Removal, ECF No. 1, EEOC Charge, ECF No. 1-1 [hereinafter
EEOC Charge], at 4.[3] The EEOC dismissed Plaintiff's charge
on February 13, 2018. See Notice of Removal, ECF No.
1, EEOC Dismissal, ECF No. 1-2, at 2.
Plaintiff,
proceeding pro se, filed a case in the Superior
Court of the District of Columbia on March 5, 2018, against
Marriott Hotel Services-which operates the Gaylord Hotel-and
against Defendant. See Notice of Removal, ECF No. 1,
Superior Court Filing, ECF No. 1-3, at 2. On April 3, 2018,
Defendant removed the case to federal court. See
Notice of Removal, ECF No. 1. Soon after, the court dismissed
Marriott Hotel Services because Plaintiff failed to exhaust
his administrative remedies against them. See Order,
ECF No. 20. On January 25, 2019, Defendant moved for summary
judgment. See Def.'s Mot. For Summ. J., ECF No.
45 [hereinafter Def.'s Mot.].
II.
At the
summary judgment stage, once a defendant asserts a
“legitimate, non-discriminatory reason for the
decision, ” plaintiff must “produce[] sufficient
evidence for a reasonable jury to find that the
employer's asserted non-discriminatory reason was not the
actual reason and that the employer intentionally
discriminated against the employee.” Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). Defendant has asserted a legitimate,
non-discriminatory reason for deciding not to represent
Plaintiff in mediation: it “reasonably believed that an
arbitrator would likely find that Gaylord had just cause to
terminate [Plaintiff]” because he had three prior
disciplinary incidents in the last eighteen months that
demonstrated a history of verbally provoking and yelling at
coworkers, and Defendant had evidence that Plaintiff
initiated the altercation with Ms. Byrd. See
Def.'s Mot. at 13, 15-16.
Plaintiff
has produced no evidence that Defendant's
“non-discriminatory reason was not the actual reason
and that the employer intentionally discriminated against the
employee.” Brady, 520 F.3d at 494. In his
opposition, Plaintiff argues that the video evidence from the
altercation that Defendant relied on is not the same video he
saw after the incident. See Pl.'s Opp'n, ECF
No. 52 [hereinafter Pl.'s Opp'n], at 1. Plaintiff
also avers that he did not initiate the altercation with Ms.
Byrd. Instead, he claims he ate the bread and put it in the
trash (as opposed to throwing it at Ms. Byrd), then Ms. Byrd,
unprovoked, pushed the trash can into him, and after that, he
offered to walk outside with her to “talk and
relax” (as opposed to threatening to “take it
outside” for a fight), at which point Ms. Byrd punched
Plaintiff in the eyes. See Id. at 2-3.
Even if
Plaintiff's version of the altercation is correct, he
cannot prevail here. First, Plaintiff's perception of the
fight alone is insufficient to counter Defendant's
considered judgment-based on evidence outside of
Plaintiff's perception-that an arbitrator would not
reverse Gaylord's termination decision. Cf. Wilkerson
v. Wackenhut Protective Servs., Inc., 813 F.Supp.2d 61,
67 (D.D.C. 2011) (“Plaintiff's mere
suggestion-absent admissible, corroborating evidence-that his
personal disagreement with the characterization of certain
facts either creates a genuine issue or permits the inference
of pretext does not make it so.”) (citations omitted).
Plaintiff's version of events does not counter his three
prior disciplinary issues, the fact that he was away from his
work station, and video evidence that does not corroborate
his story. Second, Plaintiff, by singularly focusing on the
altercation, does not put forth an iota of evidence that
Defendant intentionally discriminated against him when it
decided not to represent him in mediation. Plaintiff offers
no direct evidence of discrimination, nor does he provide
circumstantial evidence, such as a bargaining unit member of
a different age, national origin, or race, who was
represented by Defendant in mediation in similar
circumstances.
In his
EEOC complaint, Plaintiff did argue that Defendant “did
nothing for [him], but worked hard on behalf of [Ms. Byrd]
and succeeded in getting her reinstated to her job.”
See Notice of Removal, ECF No. 1, EEOC Charge, ECF
No. 1-1 [hereinafter EEOC Charge], at 4. But Ms. Byrd is not
an adequate comparator for Plaintiff to prove age, national
origin, or race discrimination. First, Plaintiff provides no
demographical information about Ms. Byrd, so the court does
not know whether Defendant treated Plaintiff differently than
Ms. Byrd based on a difference in age, national origin, or
race. Second, Ms. Byrd had materially different circumstances
than Plaintiff that made it more likely she could prevail in
mediation against Gaylord Hotel. Namely, she had no prior
violations with Gaylord, see Def.'s Facts ¶
122, and she did not leave her work space during the
altercation, see Id. ¶ 131. The court,
therefore, concludes that Ms. Byrd is not a proper comparator
with Plaintiff, and as such, Defendant had legitimate,
non-discriminatory reasons for deciding not to pursue
mediation on Plaintiff's behalf. See Duru v. District
of Columbia, 303 F.Supp.3d 63, 74 (D.D.C. 2018) (ruling
that two employees with different disciplinary histories are
not similarly situated); see also Childs-Pierce v. Util.
Workers Union of America, 383 F.Supp.2d 60, 75 (D.D.C.
2005) (“Plaintiff's disciplinary history with
defendant is a relevant factor that distinguishes her from
the three other UWUA employees to whom she attempts to
compare herself.”).
III.
For the
foregoing reasons, Defendant's Motion for Summary
Judgment is granted. A separate final, appealable order
accompanies this Memorandum Opinion.
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