RICHARD J. LEON, District Judge.
Plaintiff, Winfred Wilkerson ("Wilkerson" or "plaintiff"), brought an employment-discrimination action against his employer, Wackenhut Protective Services,
Wilkerson is an African American male who was, at the time of filing this action, forty-seven years old. Compl. ¶ 6. Wackenhut provides armed and unarmed security services to government customers such as Walter Reed Army Medical Center ("Walter Reed"). Mot. for Summ. J. at 2; see also Def.'s Ex. 2, Paff Decl. ¶ 2 [Dkt. #14-10]. Wackenhut is an equal-opportunity employer whose stated policy prohibits unlawful discrimination, including gender discrimination. Mot. for Summ. J. at 2; Def.'s Wilkerson Dep. Ex. 6, Equal Employment Opportunity Policy [Dkt. #14-2 at 16].
Around August 2008, Wackenhut succeeded Chenega Protective Services ("Chenega") as the security contractor for Walter Reed. Mot. for Summ. J. at 3; Def.'s Ex. 3, Deposition of Dale Paff ("Paff Dep."), June 25, 2010, at 12:18-19 [Dkt. #14-11]. That same month, plaintiff applied for a job as a security officer with Wackenhut. Def.'s Wilkerson Dep. Ex. 3, Wilkerson Employment Application, Aug. 5, 2008 [Dkt. #14-2]. Wackenhut gave plaintiff a conditional offer of employment, see Def.'s Wilkerson Dep. Ex. 5, Aug. 1, 2008 [Dkt. #14-2 at 14], and plaintiff began work shortly thereafter.
Wackenhut's employee attendance polices are outlined in various company documents, including the Wackenhut Security Officer Handbook ("Handbook"),
The Handbook does not appear to outline specific procedures for handling the request of an officer who wishes to swap shifts with another employee to avoid missing an assigned shift. However, Wackenhut does follow an unwritten, but "learned procedure" for such requests. See Def.'s Ex. 3, Paff Dep., at 51:21-22 [Dkt. #14-11]. Specifically, then-Regional Manager Dale Paff explained that management requires employees to submit a "swap form" detailing information about the employee originally scheduled for a given shift and the employee who has agreed to take over the shift. See id. at 60-61. The form, which must be "signed by both employees and approved by management," id. at 51:11-17, ensures that an employee is held accountable, a record is made, and management is informed about which employee is responsible for each shift, see id. at 52-53; see also Def.'s Ex. 4, Dep. of Lt. Victor Spain ("Spain Dep.") [Dkt. #14-12] at 38:3-8 ("Well, they were allowed to change shifts. . . . That was okay. But paperwork had to be done for that."). Indeed, "[a]bsent an official written shift swap, the officer assigned to a shift at Walter Reed Army Medical Center is responsible for manning it." Def.'s Ex. 2, Paff Decl., ¶ 4.
Importantly, although Wackenhut policy does include a "progressive discipline process" in which disciplinary actions may escalate commensurate with the number of an employee's unscheduled absences, see Def.'s Dep. Ex. 13, Policy #4—Work Attendance, at 3, Wackenhut also retains "the absolute right to terminate any employee at any time with or without good cause," Def.'s Dep. Ex. 10, Security Officer Handbook, at 3 § 2.15.
In early September 2008, plaintiff submitted a request to his supervisor, Lieutenant Victor Spain, asking for two weeks of vacation in early October. Mot. for Summ. J. at 5; Pl.'s Opp'n at 4 [Dkt. #20]. Lt. Spain forwarded the request to Chief Jimmi Brown, who delegated decision-making to Captain Haskins. See Def.'s Ex. 1, Wilkerson Dep., at 69-71; see also Def.'s Ex. 4, Spain Dep. at 9-11.
At the time, Walter Reed was short-staffed and Wackenhut was trying to reduce overtime expenditures. Def.'s Ex. 3, Paff Dep. 16:6-13, 19:18-20:7; Def.'s Ex. 4, Spain Dep. 39:12-20; Def.'s Ex. 1, Wilkerson Dep. 59:5-60:1. As a result, Capt. Haskins denied plaintiffs request for leave, explaining the short-staff issue to plaintiff in person. Notwithstanding the staff shortages, however, Capt. Haskins agreed to give plaintiff time off if plaintiff could find someone to cover his shifts— that is, if plaintiff could successfully complete a shift swap. Mot. for Summ. J. at 5; Pl.'s Opp'n at 4; Def.'s Ex. 1, Wilkerson
In total, plaintiff hoped to take leave— and thus swap duties—for six shifts between October 2 and October 10, 2008. The shifts were scheduled according to plaintiffs normal working days: in his case, for Thursday, Sunday, Monday, Tuesday, Wednesday, and the following Thursday. Pl.'s Opp'n at 4-5; Pl.'s Attach. B, Wilkerson Decl., Oct. 11, 2010 [Dkt. #20-1 at 11], ¶ 5.
Plaintiff contends that he identified three other officers to cover his shifts. Mot. for Summ. J. at 7; Pl.'s Opp'n at 4-5; Pl.'s Attach. B, Wilkerson Decl., ¶ 5. He maintains that Officer Samuel Addy agreed to work four of the six shifts: Monday, Tuesday, Wednesday, and Thursday. Mot. for Summ. J. at 7; Pl.'s Opp'n at 5; Def.'s Ex. 1, Wilkerson Dep., 70:19-71:9, 82:5-83:2, 84:22-85:15; Def.'s Ex. 5, Addy Dep. 23:15-27:10 [Dkt. #14-13]. Wackenhut acknowledges that Officer Addy orally informed Capt. Haskins that he would swap four shifts with plaintiff, and that Capt. Haskins orally approved plaintiffs request for time off.
Nonetheless, Wilkerson took the leave he requested. Indeed, during that time, he attended a training class offered by Chenega Security, the predecessor for the Walter Reed contract, see Pl.'s Opp'n at 5, and a Wackenhut competitor. See also Pl.'s Attach. B, Wilkerson Decl., ¶ 6. Meanwhile, Officer Addy did not show up for the four shifts he allegedly agreed to cover.
In sum, Paff concluded that plaintiff had abandoned his job, see, e.g., id. 40:12-21, 44:9-45:7; Def.'s Ex. 1, Wilkerson Dep. 142:21-143:1, and instructed Chief Brown to issue a "job abandonment" letter terminating Wilkerson for missing "ten (10) scheduled days of work, without calling or letting [Wackenhut] know your status." Def.'s Ex. 3, Paff Dep. 49.19-51:7; Def.'s Dep. Ex. 16, Letter from J. Brown to Wilkerson, Oct. 16, 2008 [Dkt. #14-9].
After his termination, plaintiff (curiously!) filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). See Def.'s Ex. 1, Wilkerson Dep. 75:2-10; Def.'s Dep. Ex. 15, EEOC Charge of Discrimination [Dkt. #14-9]. The EEOC dismissed plaintiffs charge for failure to find any evidence of discrimination against him. Def.'s Ex. 1, Wilkerson Dep. 117:17-22. Wilkerson then filed this civil action.
Under Fed.R.Civ.P. 56(a), "[t]he court shall grant summary judgment 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." When examining the record, the Court must view all inferences in the light most favorable to the non-moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). But to avoid summary judgment, the non-moving party must introduce specific facts "showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Fed.R.Civ.P. 56(e)). That evidence "must consist of more than mere unsupported allegations or denial and must set forth specific facts." Walker v. Dalton, 94 F.Supp.2d 8, 10 (D.D.C.2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 n. 3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Indeed, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348.
Claims under the DCHRA are analyzed under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework,
However, at the summary judgment stage, the Court need only resolve one central question: whether the employee "produced evidence sufficient for a reasonable jury to find that the employer's stated reason was not the actual reason and that the employer intentionally discriminated against [the employee] based on his [protected class]?" Brady, 520 F.3d at 494.
In essence, plaintiff's discrimination claim boils down to this: as a male, he suffered disparate treatment when he was "treated less favorably than females who were taking vacation during th[e] same period of time to attend training for competitor security companies." See Pl.'s Opp'n at 7. Because he was asked to complete a shift swap before taking leave, and because he was fired when he did not successfully do so, plaintiff contends that he was "treated much more harshly than female coworkers who had attendance problems and were no call/no shows for several days in a row." See id. at 8.
Unfortunately for plaintiff, he offers no admissible evidence to prove his claims of disparate treatment. References (and citations) to unsworn and unauthenticated documents pertaining to the discipline of what plaintiff says are similarly situated female employees, see Pl.'s Attach. J, Rhyne Notice of Termination [Dkt. #20-1 at 50], Attach. K, Walcott Abandonment Letter [Dkt. #20-1 at 55], have no value since those documents are inadmissible, see Pl.'s Opp'n at 7-8; see also Jackson v. Finnegan et al, 101 F.3d 145, 150 (D.C.Cir.1996) ("Unless the opposing party points to `affirmative evidence' showing disputed material facts, the court shall enter summary judgment, if appropriate, against the adverse party.") (internal citation omitted). Indeed, it is well established that "[u]nsworn, unauthenticated documents cannot be considered on a motion for summary judgment." Akers v. Liberty Mut. Grp., 744 F.Supp.2d 92, 97 (D.D.C.2010) (internal citations omitted);
In the same vein, Wilkerson's claims that a female employee requested— and was granted—vacation but was not asked to first complete a shift swap does not create a genuine issue where the only documentation supporting the assertion is unauthenticated and unsworn. See Pl.'s Attach. I, Saab Leave Request Form [Dkt. #20-1 at 48]; see also Akers, 744 F.Supp.2d at 97. Personal belief, speculation, and hearsay, however, are simply insufficient to defeat a motion for summary judgment. See, e.g., Robinson-Reeder v. Am. Council on Educ., 674 F.Supp.2d 49, 52 (D.D.C.2009). With no actual evidence of disparate treatment before this Court, there is no reason to analyze—much less endorse—these aspects of plaintiff's claims. And in any event, plaintiff's own sworn admission—acknowledging that in other instances, Wackenhut has allowed other male employees to take time off without requiring them to first complete a shift swap, see Def.'s Ex. 1, Wilkerson Dep. 113:19-114:10, 232:4-17, greatly undermines Wilkerson's claim of gender discrimination.
Finally, even if plaintiff's utter lack of evidence were not already fatal to his claims
In contrast to plaintiffs conclusory and unsupported assertions, Wackenhut has offered more than enough evidence to show that it terminated plaintiff for a legitimate and nondiscriminatory reason:
For all of the foregoing reasons, defendant Wackenhut's Motion for Summary Judgment [Dkt. #14] is GRANTED. An order consistent with this decision accompanies this Opinion.