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Payne v. British Embassy, Washington, D.C.

United States District Court, District of Columbia

May 23, 2019



          Amit P. Mehta United States District Judge


         Plaintiff Shelagh Payne is a former employee of Defendant British Embassy, Washington, D.C., where she served most recently as a Trade FMS Finance Officer. Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 14-15. Following her termination in 2015, id. ¶ 41, Plaintiff filed this Complaint, alleging violations of: (1) the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. (“FMLA”); (2) the DC Family and Medical Leave Act, D.C. Code §§ 32-401 et seq. (“DCFMLA”); (3) the District of Columbia Human Rights Act, D.C Code §§ 2-1401 et seq. (“DCHRA”); as well as (4) intentional infliction of emotional distress, see generally Compl. Plaintiff contends that Defendant placed her on a performance improvement plan (“PIP”), id. ¶ 33; falsely reported to the police that she was “starving her mother to death, ” id. ¶¶ 36-37; and terminated her, id. ¶ 41, because of her age and in retaliation for exercising her right to take FMLA leave to care for her mother.

         The court now considers Defendant's Motion for Summary Judgment. Six claims remain: (1) interference with Plaintiff's FMLA and DCFMLA rights (Count I, Count III); (2) retaliation against Plaintiff for exercising her FMLA and DCFMLA rights (Count II, Count IV); (3) age discrimination under the DCHRA (Count V); and (4) discrimination against Plaintiff based on her family responsibilities under the DCHRA (Count VII).[1]

         The court finds that there is no genuine dispute of material fact as to Plaintiff's age discrimination claim and therefore grants summary judgment as to Count V. However, as to the remaining claims, there remains a genuine dispute of material fact. Accordingly, Defendant's Motion is denied as to all other counts.


         Summary judgment is appropriate “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). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F.Supp.3d 18, 28 (D.D.C. 2015). In assessing a motion for summary judgment, the court looks at the facts in the light most favorable to the nonmoving party and draws all justifiable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Defendant makes much of Plaintiff's failure to cite to her Declaration in her original Statement of Disputed Material Facts, Pl.'s Opp'n Mem., ECF No. 28 [hereinafter Pl.'s Opp'n]; Pl.'s Stmt. Disputed Material Facts, ECF No. 28-1 [hereinafter Pl.'s Stmt.]. See generally Def.'s Opp'n to Pl.'s Mot. for Leave, ECF No. 33 [hereinafter Def.'s Opp'n to Leave]. To be sure, to defeat a motion for summary judgment, the nonmoving party must put forward “more than mere unsupported allegations or denials, ” and its opposition must be “supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial.” Elzeneiny v. District of Columbia, 125 F.Supp.3d 18, 28 (D.D.C. 2015) (citing Fed.R.Civ.P. 56(e)). However, Defendant asks the court to ignore Plaintiff's Declaration merely because Plaintiff's original Statement does not specifically cite to it-even though the Declaration as the source of Plaintiff's fact assertions is evident. See Def.'s Opp'n to Leave at 5; see also Pl.'s Stmt. at 1 (stating that “[a]ll facts not cited to are supported by [Plaintiff]'s affidavit, attached hereto as Exhibit 1”). The court declines to do so. Plaintiff would have done better to cite specifically to her Declaration in the first instance, but the court will consider it nonetheless. See Fed. R. Civ. P. 56(c)(3).



         The court first disposes of Plaintiff's age discrimination claim under the DCHRA. District of Columbia courts “look[ ] to federal court decisions interpreting the federal Age Discrimination in Employment Act of 1967 [(‘ADEA')] when evaluating age discrimination claims under the DCHRA.” Washington Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1073 n.7 (D.C. 2008). The D.C. Court of Appeals has yet to determine whether, in proving a DCHRA age discrimination claim, a plaintiff must merely show that her age “had a determinative influence on the” challenged employment action, id. at 1073 (internal citation and quotation marks omitted), or she must prove the more rigorous “but-for” causation standard for ADEA cases established by later Supreme Court precedent, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009); see also Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 376 (D.C. Cir. 2010). But, no matter-under either standard, Plaintiff's claim fails.

         Plaintiff offers no proof connecting her age and the only adverse decision that she claims resulted from discrimination-her termination. See Pl.'s Opp'n at 29-30.[2] The sole evidence on which Plaintiff relies to show “discriminatory animus” is that, on some unidentified date in 2014, one of her supervisors “stated that Ms. Payne ‘was showing her age' because Ms. Payne was unfamiliar with social media and Skype.” Pl.'s Stmt. ¶ 119. But that evidence, standing alone, establishes no causality. The statement's temporal proximity to the termination is uncertain and the supervisor who made the statement is not identified as involved in the firing in any way. Plaintiff adds that she was terminated “only a couple of years prior to when she was eligible for full retirement benefits, ” Pl.'s Opp'n at 29, but she produces no evidence that this consideration played any role in the decision to fire her. Because Plaintiff has not offered evidence sufficient to show that her age was either the but-for cause or a “determinative influence” in her termination, her age discrimination claim cannot survive. The court therefore grants Defendant's Motion for Summary Judgment on Count V.


         As to the remainder of Plaintiff's claims, there are genuine disputes of material fact that preclude the court ...

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