United States District Court, District of Columbia
MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE.
This
four-year-old age-discrimination case concerns a job
reassignment that lasted four days and did not take full
effect until just hours before the plaintiff, Mark William
Townsend, was escorted from the building and ultimately
terminated due to his role in a multi-year
time-and-attendance fraud against his former employer, the
United States Environmental Protection Agency
(“EPA”). The plaintiff initiated this action
against the EPA, the United States Department of Justice
(“DOJ”), and the United States of America
(collectively, the “agency defendants”), and ten
current and former employees of the EPA and DOJ
(collectively, the “individual defendants”).
After twenty of the twenty-one counts in a 174-paragraph
complaint against the agency defendants were dismissed for
failure to state a claim on which relief could be granted,
see Townsend v. United States (“Townsend
I”), 236 F.Supp.3d 280, 326 (D.D.C. 2017), the
plaintiff was granted partial leave to amend his complaint,
see Townsend v. United States (“Townsend
II”), 282 F.Supp.3d 118, 133 (D.D.C. 2017),
leaving, after the opportunity of more than one year of
discovery, two claims at issue. In Count I of his Second
Amended Complaint (“SAC”), ECF No. 66, the
plaintiff alleges that he was constructively demoted due to
disparate treatment age discrimination and, in Count II, he
alleges a “pattern or practice” of age-based
disparate treatment, both in violation of the federal Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621 et seq. See SAC
¶¶ 48-75.
Count I
is predicated on the plaintiff's allegation that his
“putative supervisor, ” Dr. Tala Henry,
“illegally pressured the plaintiff [to accept a new
position] by telling him to ‘step aside' . . . in
order to make room for ‘younger' employees.”
Townsend I, 236 F.Supp.3d at 300 (some internal
quotation marks and citations omitted).[1] Count II is
predicated on allegations naming three individuals whom the
plaintiff alleges were subject to age discrimination as part
of the same reorganization leading to the plaintiff's
reassignment. See Townsend II, 282 F.Supp.3d at 128.
Although the plaintiff's evidence on this claim was
deemed “thin, ” id., his “new
allegations about older employees [were] sufficient to nudge
[his] claim into the realm of the plausible by alleging
‘something more than an isolated, sporadic incident,
'” id. (quoting Int'l Bhd. of
Teamsters v. United States
(“Teamsters”), 431 U.S. 324, 336 n.16
(1977)).
The
defendants now seek summary judgment, under Federal Rule of
Civil Procedure 56(a), see Defs.' Mot. Summ. J.
(“Defs.' MSJ”), ECF No. 73, contending that,
as to Count I, the plaintiff neither suffered an adverse
employment action nor can show that age was a factor in his
reassignment, and as to Count II, the plaintiff has not
demonstrated that age discrimination was EPA's
“standard operating procedure, ” id.,
Ex. 1, Defs.' Mem. Supp. Mot. Summ. J. (“Defs.'
Mem.”) at 2, ECF No. 73-1.[2] For the reasons explained
below, the defendants' motion is granted.
I.
BACKGROUND
The
plaintiff is a Caucasian male who began working at the EPA in
1980 and was over the age of 40 when the internal EPA
reorganization prompting this suit transpired. Defs.'
MSJ, Ex. 2, Defs.' Statement of Material Facts
(“Defs.' SMF”) ¶ 1, ECF No. 73-2;
id., Ex. 7, Dep. of Mark Townsend (“Pl.'s
Dep.”) at 44, ECF No. 73-7.[3] During his time at the EPA,
the plaintiff “shuffled” among divisions as the
agency periodically reorganized and consequently he worked in
various positions with responsibility for a number of
office-wide duties. Pl.'s Dep. at 10-38, ECF No. 73-7
(plaintiff agreeing “[i]t was not unusual to see
reorganizations across EPA” and expressing the view
that “all [reorganizations] are is a shuffling, all
they are is a political game, the shuffling. The staff, once
again, do[es] exact[ly] the same work, their assignments do
not change. . . . [t]he roles and responsibilities for the
people on the teams don't change”); see
also Defs.' Mem. at 1 (“As with many federal
agencies over the years, EPA's internal structure has
changed several times through reorganization of its
offices.”).[4] From December 2005 until the alleged
adverse employment action on July 27, 2014, the plaintiff
served as Supervisory Biologist (Branch Chief), a GS-15
position, in the High Production Volume Chemicals Branch
(“HPVCB”) of the Risk Assessment Division
(“RAD”) of the EPA's Office of Pollution
Prevention and Toxics. Defs.' SMF ¶¶ 2, 4;
Pl.'s Dep. at 20, ECF No. 73-7. The plaintiff describes
this position as “mid-level management.”
Pl.'s Dep. at 20, ECF NO. 73-7.
A.
Reorganization Begins in 2013 and Eventually Dissolves
Plaintiff's Branch
Starting
in 2013, the EPA's Office of Pollution Prevention and
Toxics (“OPPT”), of which the plaintiff's
Branch and Division were a part, began the process of
reorganizing. Defs.' SMF ¶ 4; Defs.' MSJ, Ex. 3,
Decl. of Tala Henry (“Henry Decl.”) ¶¶
4-13, ECF No. 73-3. During March and April 2013-while the
plaintiff was already under investigation for
time-and-attendance fraud, see Townsend I, 236
F.Supp.3d at 291-93-he discussed with his supervisor, Dr.
Jeffery Morris, then the acting Director of the RAD, the
plaintiff's vision for the reorganization. Defs.' SMF
¶ 3; Defs.' Mem. at 3; Defs.' MSJ, Ex. 5, Decl.
of Jeffery T. Morris (“Morris Decl.”)
¶¶ 2-4, ECF No. 73-5. In a March 27, 2013 meeting,
Dr. Morris claims that the plaintiff proposed that his
branch, the HPVCB, “be dissolved and subsumed into
other RAD branches, ” and that the plaintiff “be
reassigned from Branch Chief to a RAD immediate office
position.” Morris Decl. ¶ 4. Later that same day,
Dr. Morris received a follow-up email from the plaintiff,
which Dr. Morris says “reiterated [plaintiff's]
proposal.” Id. (citing Ex. A to Morris Decl.,
Email from Plaintiff to Jeffery Morris, dated March 27, 2013
(“Mar. 2013 Email”) at 1, ECF No. 73-6)). The
plaintiff's email opens by referring to “our early
morning conversation” and indicates that the purpose of
the email is “to clarify and probably commit
myself.” Mar. 2013 Email. The plaintiff suggests that
RAD be reorganized into three branches, with “[o]ne
focused on PMNs, ” and “two focused on generic
support for toxic chemical review, ” id.;
Morris Decl. ¶ 4 (noting that “‘PMNs'
stands for pre-manufacture notices and relates to the
EPA's responsibility to review chemicals before they are
manufactured and enter commerce in the United States”),
and the email contains the plaintiff's recommendations as
to both the positions needed and employees to fill various
roles, Mar. 2013 Email. The closing sentence states,
regarding the plaintiff's own role: “Deputy BC [for
Branch Chief]-nope. Deputy DD [for Division Director] and
sadly, I have suites [sic] and shirts and dress shoes and
even scads of ties. I can be pretty when necessary.”
Id.[5] In other words, the plaintiff's
“nope” indicates his rejection of maintaining his
then-position as a Branch Chief and preference, though
“sadly, ” for a more senior position as Deputy
Division Director.
A few
weeks later, on April 11, 2013, the plaintiff again wrote Dr.
Morris about “perceiv[ing] a significant proposal
towards changing [plaintiff's] role and
responsibilities” and requesting “a written
proposal regarding when (date) [his] current responsibilities
will cease and new role will begin.” Ex. B to Morris
Decl., Email from Plaintiff to Jeffery Morris, dated April
11, 2013 (“Apr. 2013 Email”) at 5, ECF No. 73-6.
The plaintiff goes on to acknowledge that he is to become a
“Special Assistant in the Immediate Office of the Risk
Assessment Division, ” a position that “does not
currently exist.” Id.
Dr.
Morris understood the plaintiff's recommendation as
proposing that his branch, HPVCB, “be dissolved and
subsumed into other RAD branches, ” and that the
plaintiff “be reassigned from Branch Chief to a RAD
immediate office position.” Morris Decl. ¶ 4.
Since this was the reassignment that the plaintiff now
challenges, the defendants contend this “fact [] casts
doubt on his subsequent contention that the reassignment was
somehow discriminatory and adverse.” Defs. Mem. at 11.
The plaintiff disputes that, in his communications with Dr.
Morris, he proposed to eliminate his own Branch or asked to
be reassigned to the RAD Immediate Office. Pl.'s
Opp'n Defs.' Mot. Summ. J. (“Pl.'s
Opp'n”) at 7-9, ¶¶ 2, 4-7, 9, 14, ECF No.
74-1; id., Ex. 4, Dep. of Mark Townsend
(“Pl.'s Dep.”) at 3-4, 6-15, ECF No.
74-4.[6] When confronted with his March 2013 email
to Dr. Morris, the plaintiff back-tracked, claiming that he
“clarified in later emails” what he meant, and
that the March 2013 email was an “off-the-cuff response
that [he] disagreed with [Dr. Morris]” and that he
“was trying to be polite.” Pl.'s Dep. at 9,
ECF No. 74-4. He concedes, however, that the email never said
whether he “agreed . . . or disagreed with [Dr.
Morris]” but rather “asked lots of questions
about what was going through his mind and gave him
information about [himself] and the organization.”
Id. at 10. He also stated that he “disagreed
[with Dr. Morris] in person in public” and “did
not think [he] needed to repeat that in writing.”
Id. at 11.[7]
When
the reorganization ultimately took shape, the number of OPPT
Divisions was reduced from seven to six. Defs.' SMF
¶ 5; Henry Decl. ¶ 4. OPPT's RAD remained, but
all four branches within it, including the plaintiff's,
were dissolved and reincorporated, along with staff from two
branches of a division that had been eliminated, into five
new, multidisciplinary branches, affecting a total of 80
positions. Defs.' SMF ¶¶ 5-6; Henry Decl.
¶¶ 4-5, 13; Defs.' Mem. at 3-4 (characterizing
this reorganization as “major”). As a result of
the reorganization, the number of leadership positions within
OPPT was reduced from 17 to 13. Defs.' SMF ¶ 8;
Defs.' Mem. at 4; Henry Decl. ¶ 5; Ex. 2 to Henry
Decl., Memorandum Explaining Reorganization
(“Reorganization Mem.”), dated Sept. 11, 2013 at
5, 6, 36, ECF No. 73-4 (explaining that “consolidating
the [risk-assessment] functions in a single division will
significantly improve integration, consistency, coordination,
collaboration, decision-making and timeliness among
disciplines”). The defendants claim that because the
“HPVC Branch in RAD was eliminated, ” the
plaintiff's previous role of HPVC Branch Chief
“ceased to exist.” Defs.' SMF ¶ 7. The
plaintiff maintains, however, that despite this
reorganization, the position he previously held “still
existed” and “was not eliminated-other than by
name.” Pl.'s Dep. at 17, ECF No. 74-4 (“If
the branches were one, two, three, four, and five, and I was
a branch chief, and nothing was advertised, I would say my
position still existed.”); Pl.'s Opp'n at 8
¶ 10.
B.
Plaintiff's Supervisor Allegedly Encourages Him and
Others to “Step Aside” for
Younger Employees as Part of Reorganization
As part
of the reorganization, “Dr. Tala Henry became the
Director of RAD” and thus the plaintiff's putative
supervisor, in which role she “was tasked with
developing RAD's reorganization staffing plan, ”
was “significantly, but not solely, involved in
drafting the mission statement and staffing plan” for
the RAD, and met with each manager who would be affected,
including the plaintiff. See Defs.' Mem. at 4;
Henry Decl. ¶¶ 1, 4, 6, 8.[8] Dr. Henry consulted with Dr.
Morris, the acting RAD Director, “to gain insights on
the current manager's roles, responsibilities, management
styles and functioning/performance in their management roles,
” Henry Decl. ¶ 7; Morris Decl. ¶ 5, and
“convened several meetings with existing managers,
” including the plaintiff, “to discuss options
for organizational units within the division, ” Henry
Decl. ¶ 8.
On
August 8, 2013, Dr. Henry sent an email to the plaintiff and
six other employees explaining that six “management
(i.e. supervisory)” positions and one “Sr.
Science Advisor (non-supervisory)” position would be
available following the reorganization and asking the
employees to provide their top three preferences among those
positions. Ex. 1 to Henry Decl., Email from Tala Henry to
Plaintiff and Others, dated Aug. 8, 2013 (“August 2013
Email from Henry”) at 2, ECF No. 73-4; Henry Decl.
¶ 8. Dr. Henry describes both the management and senior
advisor positions as “senior level” roles in the
newly constituted RAD, Henry Decl. ¶ 8, but does not
dispute that her August 2013 email characterized the
“Sr. Science Advisor” position as
“non-supervisory, ” August 2013 Email from Henry
at 2.
On
September 6, 2013, Dr. Henry met with the plaintiff and
informed him that “the proposed reorganization plan
would eliminate the HPVC Branch and that his position would
no longer exist.” Defs.' Mem. at 5; Henry Decl.
¶ 10. Dr. Henry also told the plaintiff that he would
eventually be reassigned from Supervisory Biologist (Branch
Chief, GS-15, Step 10) in the HPVCB to Senior Advisor
(Biologist, GS-15, Step 10) in the RAD Immediate Office.
Defs.' SMF ¶¶ 9, 10; Henry Decl. ¶ 10;
Pl.'s Dep. at 36, ECF No. 73-7.[9] Most significantly for his
age discrimination claim, the plaintiff alleges that, at this
meeting, Dr. Henry asked him to “do [her] a favor,
” to “step aside” and “move up to the
front office, [to] give up [his] branch chief role for the
younger staff that just went through training at American
University.” Pl.'s Dep. at 5-6, 19- 20, ECF No.
74-4; Pl.'s Opp'n at 7-8 ¶ 3.
Dr.
Henry categorically denies having made such a request and
asserts that age played no role in her decision to reassign
the plaintiff. Henry Decl. ¶ 12 (“Plaintiff's
age was never a factor in my decision to reassign him. Nor
did I ever make any statements that Plaintiff would be
reassigned from Branch Chief to a Senior Advisor position in
order to make positions available to younger staff.”).
She contends that the plaintiff was “uniquely
qualified-from both educational and experience
perspective[s]” for the Division-wide role to which he
was reassigned, id. ¶ 10, based on his
experience with several Division-level responsibilities such
as budget formulation assistance, contracts, and information
technology, id. ¶ 11, and that, because the
reorganized RAD would have 80 rather than 50 full-time
equivalent employees, the need for the types of activities
the plaintiff would be assigned would be increasing,
id.; see also Pl.'s Dep. at 20-34, ECF
No. 73-7 (the plaintiff describing his experience in
information technology, budgeting, contracting, and
negotiating); Defs.' SMF ¶ 13 (referring to these
excerpts); Defs.' Mem. at 15 (describing plaintiff's
reassignment to “front office” with
“Division-level responsibilities that Plaintiff . . .
had already been performing as a Branch Chief, and . . . he
was the best qualified employee within RAD to perform them at
the Division-level”). The plaintiff concedes that no
witnesses were present at this meeting in which Dr. Henry
asked him to “step aside” “for the younger
staff, ” Pl.'s Dep. at 39, ECF No. 73-7, that he
did not record it, id. at 39- 40, and that he did
not take contemporaneous notes while speaking with Dr. Henry,
id. at 40; Defs.' SMF ¶ 12.
The
plaintiff claims that he later heard about a similar
conversation Dr. Henry allegedly had with Dr. Jennifer Seed,
another employee who was reassigned during the
reorganization. Pl.'s Dep. at 39, ECF No. 73-7; Pl.'s
Opp'n at 9 ¶ 12; id., Ex. 2, Decl. of Dr.
Jennifer Seed (“Seed Decl.”) ¶¶ 3-5, 7,
ECF No. 74-2. Seed, while represented by the same counsel as
the plaintiff here, has also sued the EPA for alleged age
discrimination in another case pending before another Judge
of this Court. See Seed v. EPA, No. 16-cv-748 (TSC).
In a declaration filed in this instant litigation, Seed
reiterates her claims from her own case that Dr. Henry
“discouraged [her] from applying for certain branch
chief positions because EPA was hoping to fill those
positions with younger people who had just been through the
leadership training program.” Seed Decl. ¶ 3
(internal quotation marks and alterations omitted). Dr. Seed
asserts, based on her own experience and conversations with
the plaintiff, that “it appears that EPA was openly
engaging in age discrimination as a matter of policy, ”
id. ¶ 5, and that the similarity of the
statements made to her and the plaintiff “show that age
was a factor in EPA policy decisions, ” id.
¶ 7; see also Pl.'s Opp'n, Ex. 3, Dep.
of Jennifer Seed (“Seed Dep.”) at 2-3, ECF No.
74-3 (Dr. Seed alleging that Dr. Henry told her “[w]e
were hoping to fill those [branch chief positions] with
younger people who had just been through the leadership
training program”). Despite alleging a pattern of
discrimination against himself, Dr. Seed, and two other EPA
employees, Dr. Kay Austin and Dr. Phillip Sayre, see
SAC ¶¶ 59-75, the plaintiff concedes that no
documentation or witnesses corroborate his belief that age
was a factor in reassigning any employee other than himself
and Dr. Seed. Pl.'s Dep. at 43-46, ECF No. 73-7;
Defs.' SMF ¶¶ 15, 16; but see
Pl.'s Opp'n at 10-11 ¶ 23 (contending that
“[b]ased upon the questions asked by the
government during the deposition, ” plaintiff
“has ‘no doubt at all' that he, Dr. Jennifer
Seed, Dr. Phillip Sayre and Dr. Kay Austin were discriminated
against based on their age(s).” (emphasis in original)
(quoting Pl.'s Dep. at 29, ECF No. 74-4)).[10]
C.
Plaintiff is Reassigned for Four Days Before Being Placed on
Paid Leave and Ultimately Terminated
The
plaintiff's reassignment from Supervisory Biologist
(Branch Chief) of the High Production Volume Chemicals Branch
of the RAD to Senior Advisor (Biologist) of the RAD became
effective on July 27, 2014. Defs.' SMF ¶ 10; Henry
Decl. ¶¶ 3, 13; Ex. 3 to Henry Decl., Email from
Bobby Moore, dated July 15, 2014 at 38, ECF No. 73-4 (noting
that “[t]his is the [second] phase of the
reorganization process and the effective dates . . . provided
do[] not make this reorganization final”); Ex. 4 to
Henry Decl., Notification of Personnel Action, dated July 27,
2014 (“Notification of Personnel Action”) at 40,
ECF No. 73-4 (reassigning plaintiff from “Supervisory
Biologist” in the HPVCB of the RAD to
“Biologist” in the RAD). According to the
plaintiff, however, he was not made aware that his
reassignment had been completed until the day he was removed
from the building on July 31, 2014. Pl.'s Dep. at 50, ECF
No. 73-7; Defs.' Reply at 9 n.3. Indeed, he asserts that
“Dr. Tala Henry had obviously not decided what [the
plaintiff] was going to do [or] when [he] was going to do
it” and that “[n]o one ever” “[came]
in and [said], ‘Mark, you are no longer a branch chief.
I am taking off your stripes and you're now something
else.'” Pl.'s Dep. at 53, ECF No. 73-7. In
fact, when asked in his deposition whether he “ever
serve[d] as a senior advisor at the EPA at the RAD Immediate
Office, ” the plaintiff replied, “No. No.”
Id. at 37; but see Id. at 36 (“I
became a biologist for one day before I was no
longer with the reorganization [sic].” (emphasis
added)).
At any
rate, the plaintiff's reassignment did not change his job
series or pay grade, nor did it reduce his pay, benefits, or
working hours. Defs.' SMF ¶ 11; Pl.'s Dep. at
51-55, ECF No. 73-7; Notification of Personnel Action at
40.[11] Although his “staff were being
picked up by other people periodically to do things, ”
he “was still being held accountable to get certain
projects done.” Pl.'s Dep. at 57, ECF No. 73-7.
Consequently, the plaintiff testified that he was
“still a branch chief” and “was still
managing brominated flame retardants, . . . still managing
other projects, . . . [and] still being asked by Tala Henry
to attend management meetings” until the day of his
removal, and that he “lost no projects . . . and
actually picked up extra projects.” Pl.'s Dep. at
36-37, 51-53, 57, ECF No. 73-7; Defs.' SMF ¶
14.[12] Thus, the plaintiff states that
“after the reorganization, [he] was still floating-[he]
was still a branch chief doing [his] work . .. until
[it] was the last day at EPA, and then [he got notice] saying
[he] was a biologist and then [he] was walked out the
door.” Pl.'s Dep. at 36, ECF No. 73-7 (emphasis
added)
At the
same time, for the four days he was present after the
reorganization, the plaintiff states in his opposition brief
that he was “stripped of all supervisory [and]
managerial responsibilities.” Pl.'s Opp'n at 10
¶ 20. While his “pay stayed the same, ” the
plaintiff complains that his “responsibilities were
significantly less, ” Pl.'s Dep. at 51, ECF No.
73-7, because he was no longer responsible for
“checking staff's work, telling staff what to do,
solving staff problems, [or] working with other branch
chiefs, ” id. at 52, but instead was
apparently asked to scan documents, Pl.'s Dep. at 18, ECF
No. 74-4, a task which he suggests would ordinarily be
assigned to library staff at the GS-11, GS-12, or GS-13
level, id. at 28; Pl.'s Opp'n at 8-10
¶¶ 11, 20, 21, and which he describes as
“bullshit tasks, ” Pl.'s Dep. at 18, ECF No.
74-4, “busy work, ” id. at 26,
“make believe, ” id., “make work,
” id., “not real, ” id.,
and “below-grade-level, ” id. at 28. The
plaintiff's starkly differing characterizations of his
tasks in his reassigned position for the four days between
July 27 and 31, 2014, are difficult to reconcile, except
perhaps to include scanning as among the new assignments he
was given.[13]
On July
31, 2014, four days after the reorganization was put into
effect, the plaintiff was removed from the building and
placed on paid administration leave in connection with his
role in time-and-attendance fraud at the EPA. See
Defs.' Mem. at 2 n.1; Defs.' Reply at 9 n.3;
Townsend I, 236 F.Supp.3d at 295; SAC ¶ 43. The
plaintiff was formally terminated from the EPA on October 7,
2014 for his role in this fraudulent activity. Defs.' SMF
¶ 17; Townsend I, 236 F.Supp.3d at 291-95.
II.
LEGAL STANDARD
Federal
Rule of Civil Procedure 56 provides that summary judgment
shall be granted “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 issue of material fact exists
‘if the evidence, viewed in a light most favorable to
the nonmoving party, could support a reasonable jury's
verdict for the nonmoving party.'” Figueroa v.
Pompeo, 923 F.3d 1078, 1085 (D.C. Cir. 2019) (internal
quotation marks omitted) (quoting Hairston v.
Vance-Cooks, 773 F.3d 266, 271 (D.C. Cir. 2014)). The
moving party bears the burden to demonstrate the
“absence of a genuine issue of material fact” in
dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), while the nonmoving party must present specific
facts, supported by materials in the record, that would be
admissible at trial and that could enable a reasonable jury
to find in its favor, see Anderson v. Liberty Lobby,
Inc. (“Liberty Lobby”), 477 U.S.
242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38
(D.C. Cir. 2015) (noting that, on summary judgment, the
appropriate inquiry is “whether, on the evidence so
viewed, ‘a reasonable jury could return a verdict for
the nonmoving party'”) (quoting Liberty
Lobby, 477 U.S. at 248); see also Greer v.
Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)
(“[S]heer hearsay . . . counts for nothing on summary
judgment.” (internal quotation marks and citation
omitted)); Fed.R.Civ.P. 56(c), (e)(2)-(3).
“Evaluating
whether evidence offered at summary judgment is sufficient to
send a case to the jury is as much art as science.”
Estate of Parsons v. Palestinian Auth., 651 F.3d
118, 123 (D.C. Cir. 2011). This evaluation is guided by the
related principles that “courts may not resolve genuine
disputes of fact in favor of the party seeking summary
judgment, ” Tolan v. Cotton, 572 U.S. 650, 656
(2014) (per curiam), and “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor, ” id. at 651
(internal quotation marks omitted) (alteration in original)
(quoting Liberty Lobby, 477 U.S. at 255). Courts
“may not make credibility determinations or weigh the
evidence, ” Iyoha v. Architect of the Capitol,
927 F.3d 561, 565 (D.C. Cir. 2019) (internal quotation marks
and citations omitted), since “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge, ” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)
(internal quotation marks and citation omitted); see also
Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290,
296 (D.C. Cir. 2015).
The
fact that a plaintiff's testimony is uncorroborated is
immaterial for purposes of summary judgment, since
“[c]orroboration goes to credibility, a question for
the jury, not the district court.” Robinson v.
Pezzat, 818 F.3d 1, 9 (D.C. Cir. 2016). Nonetheless, for
a factual dispute to be “genuine, ” the nonmoving
party must establish more than “[t]he mere existence of
a scintilla of evidence in support of [its] position, ”
Liberty Lobby, 477 U.S. at 252, and cannot rely on
“mere allegations” or conclusory statements,
see Equal Rights Ctr. v. Post Props., Inc., 633 F.3d
1136, 1141 n.3 (D.C. Cir. 2011) (internal quotation marks
omitted); accord Fed. R. Civ. P. 56(e). If
“opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.” Lash v. Lemke, 786 F.3d
1, 6 (D.C. Cir. 2015) (internal quotation marks omitted)
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
The Court is only required to consider the materials
explicitly cited by the parties, but may on its own accord
consider “other materials in the record.”
Fed.R.Civ.P. 56(c)(3).
III.
DISCUSSION
As
noted, only two of the plaintiff's twenty-one original
claims remain: his alleged constructive demotion due to age
discrimination claim (Count I), and his pattern or practice
disparate treatment claim (Count II). For the reasons that
...