RUDOLPH CONTRERAS, United States District Judge.
Citing acts of insubordination and communication issues, Defendant Washington Metropolitan Area Transit Authority
This suit followed. Ms. Wang alleges that WMATA violated Title VII of the Civil Rights Act of 1964 by discriminating against her based on her national origin, race, and sex, and by retaliating against her in response to her opposition to those discriminatory acts. Ms. Wang also alleges that WMATA retaliated against her in response to her whistleblowing in relation to federal funds WMATA received under the American Recovery and Reinvestment Act of 2009 (ARRA).
WMATA now moves for summary judgment. On the record the parties present, a reasonable jury could find that WMATA's reasons for terminating Ms. Wang are a pretextual cover for discrimination. A reasonable jury could alternatively find that WMATA terminated Ms. Wang as retaliation for her opposition to what she reasonably perceived to be WMATA's discrimination. The Court therefore declines to grant summary judgment on Ms. Wang's Title VII claims. But, because Ms. Wang has not established that she made a disclosure that the ARRA's whistleblower provision protects, the Court will grant WMATA's motion for summary judgment on Ms. Wang's ARRA retaliation claim.
Defendant WMATA provides transit services in the Washington, D.C. metropolitan area. Am. Compl. ¶ 20, ECF No. 9; Answer Am. Compl. ¶ 20, ECF No. 10.
In October 2008, Stephanie Audette became WMATA's Comptroller and Ms. Wang's direct supervisor. Def.'s Statement ¶ 8; Pl.'s Statement 2, ¶ 5. Ms. Audette remained Ms. Wang's direct supervisor until August 2012. Pl.'s Statement 5, ¶ 42; accord Audette Dep. 16:22-17:3. Between October 2008 and August 2012, Ms. Audette prepared Ms. Wang's yearly performance evaluations. Pl.'s Statement 5, ¶¶ 43-44; accord Audette Dep. 16:22-17:6.
Ms. Wang received her 2009 performance evaluation from Ms. Audette on September 9, 2009. Def.'s Statement ¶ 8; Pl.'s Statement 2, ¶ 5. In that evaluation, Ms. Audette gave Ms. Wang a "Needs Improvement" rating in ten of the thirteen categories in the evaluation. Def.'s Statement ¶ 8; Pl.'s Statement 2, ¶ 5. Ms. Audette accordingly placed Ms. Wang on a corrective action plan, in which Ms. Wang received three and a half months to meet the goals specified in the plan. Def.'s Statement ¶ 8; Pl.'s Statement 2, ¶ 5; id. at 19, ¶ 3; Def.'s Resp. Pl.'s Statement 7, ¶ 3, ECF No. 21-1 [hereinafter Def.'s Resp. Statement]. Ms. Wang successfully completed the tasks specified in the plan. Pl.'s Statement 19, ¶ 4; Def.'s Resp. Statement 7, ¶¶ 2, 4. Ms. Wang received a satisfactory performance evaluation in 2010, and she received a "competent" or "exceeds expectations" rating for each metric in her 2011 and 2012 performance evaluations. Am. Compl. ¶ 38; Answer Am. Compl. ¶ 38; Pl.'s Statement 14, ¶ 25; Def.'s Resp. Statement 5, ¶ 24.
In 2010, while Ms. Audette was Ms. Wang's supervisor, WMATA began work with a contractor named Metaformers on a project titled the PeopleSoft Integrated Finance Organization Project, or the "IFO Project." Am. Compl. ¶¶ 50, 54 (indicating that WMATA awarded Metaformers the
The IFO Project proceeded in stages: a design phase came first, followed by a testing phase, then an implementation phase, and finally a maintenance phase. Def.'s Statement ¶ 76; Pl.'s Statement 4, ¶ 25. During the course of the project, a "Project Team" of WMATA employees ("leads") worked full-time on the IFO Project alongside Metaformers. Def.'s Statement ¶ 77; Pl.'s Statement 4, ¶ 26. But regardless of WMATA employees' Project Team membership, WMATA required everyone in its Office of Accounting to contribute to the IFO Project. Def.'s Statement ¶ 78; Pl.'s Statement 4, ¶ 27. Thus, although Ms. Wang and her staff were not Project Team members, they were "subject-matter experts" for IFO Project purposes, because they used the modules that the IFO Project upgraded. Def.'s Statement ¶ 77; Pl.'s Statement 4, ¶ 26.
While work for the IFO Project was ongoing, it was Ms. Wang's group's top priority. Pl.'s Statement 57, ¶ 13; Def.'s Resp. Statement 16, ¶ 13. Ms. Wang helped the Project Team with the design and testing for software used in Ms. Wang's areas of responsibility. Pl.'s Statement 57, ¶ 11; Def.'s Resp. Statement 16, ¶ 11. For instance, during the testing phase, Metaformers would produce testing kits, and Ms. Wang would organize her staff so that affected staff members could use the kits to test affected modules. Def.'s Statement ¶ 80; Pl.'s Statement 4, ¶ 29. Because she did not believe she could do all the testing herself, Ms. Wang relied on her staff to test the modules: she assigned testing tasks and monitored her staff's performance and completion of the tasks. Def.'s Statement ¶ 80; Pl.'s Statement 4, ¶ 29; id. at 57-58, ¶ 14; Def.'s Resp. Statement 16, ¶ 14. Throughout the IFO Project, at the end of each accounting period, Ms. Wang was responsible for ensuring that all accounts' transactions were properly completed, and that fiscal years and accounting periods closed in a timely manner. Am. Compl. ¶ 94; Answer Am. Compl. ¶ 94.
As the IFO Project went on, however, extensive data issues arose that required manual interventions, data deletions, and data corrections. Am. Compl. ¶ 109, Answer Am. Compl. ¶ 109. In September 2012, for instance, the IFO Project created a $26 million erroneous billing entry, which Ms. Audette asked Ms. Wang to correct. Pl.'s Statement 60, ¶ 28; Def.'s Resp. Statement 17, ¶ 28 (declining to dispute this fact). After Ms. Wang refused to correct the entry because she claimed that she lacked supporting documentation for the correction, Ms. Audette asked one of Ms. Wang's staff members to correct the entry, because Ms. Audette believed that the correction did have supporting documentation. Pl.'s Statement 60, ¶¶ 28-29; Def.'s Resp. Statement 17, ¶¶ 28-29.
In August 2012, WMATA hired Ian Greaves to become its Assistant Comptroller, a newly created position that reported to Ms. Audette. Def.'s Statement ¶ 11; Pl.'s Statement 2, ¶ 6; id. at 6, ¶ 49; see also Greaves Dep. 15:3-5, Pl.'s Statement Ex. 3, ECF No. 20-5 (noting that Ms. Audette was Mr. Greaves's supervisor). Mr. Greaves became Ms. Wang's direct supervisor, as well as the supervisor for WMATA employees in five other positions in the Office of Accounting: (1) Jessie Li, the Accounts Payable Manager;
When Mr. Greaves became Ms. Wang's supervisor, Ms. Wang herself supervised three employees: (1) Shawn Brown, the General Ledger Supervisor; (2) Dale Dixon, the Accounts Receivable Supervisor; and (3) Francisco Julia, a Financial Analyst. Pl.'s Statement 7, ¶ 58; accord Greaves Dep. 39:8-40:6. Ms. Brown was an African-American woman. Pl.'s Statement 44, ¶ 3; Def.'s Resp. Statement 12-13, "Page 44 of 63," ¶ 3.
On February 1, 2013, Mr. Greaves issued Ms. Wang her 2012 performance evaluation. Am. Compl. ¶ 46; Answer Am. Compl. ¶ 46. Ms. Wang received a "competent" rating in many areas, including interpersonal skills, and an "exceeds expectations" rating for customer focus, decisionmaking, and innovation. Am. Compl. ¶¶ 47-48; Answer Am. Compl. ¶¶ 47-48. Because Mr. Greaves had only recently joined WMATA, the performance evaluation included comments from both Ms. Audette and Mr. Greaves. Def.'s Statement ¶¶ 27-28; Pl.'s Statement 2-3; ¶¶ 10-11. Ms. Audette noted that Ms. Wang needed to continue to improve her
Def.'s Statement Ex. 9, at 280, ECF No. 19-11 (reproducing Ms. Wang's performance evaluation); accord Def.'s Statement ¶ 27; Pl.'s Statement 2, ¶ 10; id. at 16, ¶ 35; Def.'s Resp. Statement 5, ¶ 35.
Mr. Greaves and Ms. Wang had one discussion about IFO Project issues relating to WMATA's Asset Management module. Def.'s Statement ¶ 92; Pl.'s Statement 4, ¶ 33. In July 2013, Ms. Wang alerted Mr. Greaves to instances in which software improperly "pulled" data from WMATA's operating inventory expense account, instead of from WMATA's capital transactions account, into the Asset Management module. Pl.'s Statement 59, ¶ 20; Def.'s Resp. Statement 16, ¶ 20. Ms. Wang created a spreadsheet with short-term and long-term items, including additional staff training, that she thought would address the problems. Pl.'s Statement 59, ¶ 20; Def.'s Resp. Statement 16, ¶ 20. Ms. Wang gave her list of solutions to Mr. Greaves, and Mr. Greaves gave that list to one of the IFO Project Team leads. Def.'s Statement ¶¶ 92-93; Pl.'s Statement 4-5, ¶¶ 33-34.
Until September 5, 2013, Ms. Wang described her relationship with Mr. Greaves as "fine" and "okay." Def.'s Statement ¶ 16; Pl.'s Statement 2, ¶ 8. On September 5, Mr. Greaves held a meeting with Ms. Wang, the Financial Control Manager; Ms. Li, the Accounts Payable Manager; Mr. Dixon, the Accounts Receivable Supervisor; and Mr. Julia, the Financial Analyst who reported to Ms. Wang. Am. Compl. ¶ 121; Answer Am. Compl. ¶ 121. At the meeting, Mr. Greaves issued a "directive to allocate the duties currently performed by Francisco [Julia] to the Accounts Receivable (AR) staff." Am. Compl. ¶ 140 (reproducing Mr. Greaves's written account of what transpired at the meeting); Answer Am. Compl. ¶ 140 (admitting that the text reflects Mr. Greaves's written account). Although the parties dispute what else occurred during that meeting, they do not dispute that, after the meeting and on that same day, Mr. Greaves prepared a written warning to give to Ms. Wang. Def.'s Statement ¶ 32; Pl.'s Statement 3, ¶ 12; cf., e.g., Def.'s Statement ¶ 30 (alleging that "Ms. Wang yelled, interrupted, and shouted" during the meeting); Pl.'s Statement 21-22, ¶¶ 3-4 (alleging that Ms. Wang "did not raise her voice and was not disrespectful or insubordinate," and that Mr. Greaves "was angry and did not want to listen to" Ms. Wang's concerns).
The record shows that Ms. Wang emailed Ms. Audette at 3:57 PM on September 5, 2013 after the meeting with Mr. Greaves. See Pl.'s Statement Ex. 17, ECF No. 20-19 (reproducing the email); accord Am. Compl. ¶ 134. In her email, Ms. Wang stated that Mr. Greaves "called a meeting and told [Ms. Wang] that he was taking [Mr. Julia]" and moving him to another
The record further shows that, within an hour of when Ms. Wang sent her email to Ms. Audette, Mr. Greaves learned about Ms. Wang's September 5 email because Ms. Audette had forwarded the email to Mr. Greaves. See Def.'s Statement Ex. 12/13, at 488-89, ECF No. 19-14 (showing that Ms. Audette forwarded Ms. Wang's email to Mr. Greaves at 4:31 PM, and that Mr. Greaves replied to Ms. Audette at 4:43 PM). In Mr. Greaves's 4:43 PM reply to Ms. Audette, sent immediately after he received a copy of Ms. Wang's email, Mr. Greaves alleged that Ms. Wang was "mischaracterizing the event in an attempt to create a case." Id. at 488. Mr. Greaves replied to Ms. Audette's email once more that day at 6:20 PM. See id. at 487-88. In his second reply, Mr. Greaves provided six enumerated responses to what he characterized as Ms. Wang's "allegations." Id. As one of his responses, he wrote to Ms. Audette that "[s]aying words like angrily, abruptly, and advantage as you know are words Amy [Wang] is documenting to develop a case." Id. at 488.
The next day, Mr. Greaves and Ms. Wang argued about another issue: whether to train Mr. Dixon (in addition to Ms. Wang's other supervisee, Ms. Brown) about the month-end closing process. Pl.'s Statement 25-26, ¶ 1; Def.'s Resp. Statement 8-9, "Page 25 of 63," ¶ 1. On September 6, Mr. Greaves also delivered to Ms. Wang the written warning he had prepared the day before. Def.'s Statement ¶ 32; Pl.'s Statement 3, ¶ 12. The warning, reproduced in full below, stated that Ms. Wang had been insubordinate in the meeting held on September 5, 2013:
Def.'s Statement Ex. 11, ECF No. 19-13.
The parties agree that the written warning neither terminated Ms. Wang's employment
Thomas Vu, a WMATA employee who had an office adjacent to Ms. Wang's, recalls an occasion "early in the morning," about two weeks before WMATA fired Ms. Wang, when Mr. Vu "heard a lot of shouting and voice raising" coming from Ms. Wang's office, as well as Mr. Greaves saying "You're fired" and "You're fired immediately." Pl.'s Statement 27-28, ¶¶ 5-8; Def.'s Resp. Statement 9, ¶¶ 5-8. Mr. Vu also recalled that Ms. Wang responded by saying "This is not professional" in a lower tone. Pl.'s Statement 27-28, ¶¶ 5-6; Def.'s Resp. Statement 9, ¶¶ 5-6.
After the encounter in which Ms. Wang received the written warning from Mr. Greaves, Ms. Wang went to WMATA's Office of the Inspector General (OIG). Def.'s Statement ¶ 35; Pl.'s Statement 3, ¶ 14; id. at 30, ¶ 1; Def.'s Resp. Statement 9, "Page 30 of 63," ¶ 1. Ms. Wang sought out the OIG because she thought that the OIG was "in charge of abuse" and that Mr. Greaves had been harassing her. Pl.'s Statement 30, ¶ 1; Def.'s Resp. Statement 9, "Page 30 of 63," ¶ 1. At the OIG, Ms. Wang reported that her supervisor had "yelled and screamed" at her and that she was scared. Pl.'s Statement 30, ¶ 1; Def.'s Resp. Statement 9, "Page 30 of 63," ¶ 1. In an interview with OIG Special Agent Mark Coulter, Ms. Wang explained what had happened between Mr. Greaves and herself, beginning with the meeting when Mr. Greaves announced the plan to move Mr. Julia. Pl.'s Statement 30-31, ¶¶ 2, 4; Def.'s Resp. Statement 9, "Page 30 of 63," ¶¶ 1-2, 4. See generally Def.'s Statement Ex. 15 (reproducing the audio file from Special Agent Coulter's interview with Ms. Wang). Ms. Wang told Special Agent Coulter that, in the face of the disagreement between Mr. Greaves and Ms. Wang, Mr. Greaves's immediate response was to tell Ms. Wang "You're fired." Pl.'s Statement 31, ¶ 6; Def.'s Resp. Statement 9-10, "Page 30 of 63," ¶¶ 1, 6. Ms. Wang also told Special Agent Coulter that she thought Mr. Greaves was treating her unfairly, that she had unsuccessfully tried to meet with Ms. Audette, and that overall she "was very unhappy in how she had been treated." Pl.'s Statement 31-32, ¶¶ 3, 7; Def.'s Resp. Statement 9-10, "Page 30 of 63," ¶¶ 1, 3, 7.
In response, Special Agent Coulter explained to Ms. Wang that, for terminations of employment, WMATA had specific procedures, which Mr. Greaves did not appear to have followed. Pl.'s Statement 31, ¶ 4; Def.'s Resp. Statement 9, "Page 30 of 63," ¶¶ 1, 4. Thus, Special Agent Coulter advised Ms. Wang to stay at WMATA for the time being. Pl.'s Statement 30, ¶ 1; Def.'s
When Ms. Wang returned to her office after speaking with Special Agent Coulter at the OIG, she saw a note from Mr. Greaves. Pl.'s Statement 32-33, ¶ 12; Def.'s Resp. Statement 10, ¶ 12. The note requested that Ms. Wang meet with Mr. Greaves and Ms. Audette before leaving the office for the day. Pl.'s Statement 33, ¶ 14; Def.'s Resp. Statement 10, ¶ 14. Mr. Greaves had also sent Ms. Wang an email, in which he stated that he and Ms. Audette wanted to "review expectations" with Ms. Wang, and that Ms. Wang would still be expected to report to work the following Monday. Pl.'s Statement 33, ¶ 14; Def.'s Resp. Statement 10, ¶ 14.
Mr. Greaves then came to Ms. Wang's office, escorted Ms. Wang to Ms. Audette's office, and left the two in Ms. Audette's office. Pl.'s Statement 33, ¶ 14; Def.'s Resp. Statement 10, ¶ 14. There, Ms. Wang told Ms. Audette that she was scared, threatened, and insulted by Mr. Greaves's behavior. Pl.'s Statement 33, ¶ 14; Def.'s Resp. Statement 10, ¶ 14, Ms. Wang also told Ms. Audette that she had reported Mr. Greaves's behavior to the OIG. Pl.'s Statement 33, ¶ 14; Def.'s Resp. Statement 10, ¶ 14.
At some point later, Mr. Greaves heard a rumor that Ms. Wang may have complained to the OIG or WMATA's human resources department. Pl.'s Statement 42, ¶ 1; id. at 43, ¶ 4; Def.'s Resp. Statement 12, "Page 42 of 63," ¶¶ 1, 4. Meanwhile, in emails on September 9, 2013, Mr. Greaves and Ms. Wang continued to argue about whether Ms. Wang should train Mr. Dixon to perform the month-end closing process. Pl.'s Statement 34-35, ¶¶ 1-3; Def.'s Resp. Statement 10, "Page 34 of 63," ¶¶ 1-3.
On September 11, 2013, Ms. Wang visited WMATA's Office of Civil Rights and Human Resources. Def.'s Statement ¶ 49; Pl.'s Statement 3, ¶ 18. At the time, Lisa Johnson worked in the Equal Employment Opportunity (EEO) Division of that office as an EEO Assistant/Coordinator. Def.'s Statement ¶ 50; Pl.'s Statement 3, ¶ 19. Ms. Johnson was responsible for handling complaints involving discrimination claims; no one else in the EEO Division had those duties and responsibilities. Def.'s Statement ¶ 50; Pl.'s Statement 3, ¶ 19; id. at 38, ¶ 11; Def.'s Resp. Statement 11, ¶ 11.
The parties dispute what happened during Ms. Wang's visit to the Office of Civil Rights and Human Resources: Ms. Wang alleges that she spoke first with Ms. Johnson, that Ms. Johnson said that a woman named Belinda Press would speak with Ms. Wang, that Ms. Wang told both Ms. Johnson and Ms. Press that she had come to file a discrimination complaint against Mr. Greaves, and that Ms. Press told Ms. Wang that Ms. Press would call Ms. Wang later to obtain the details of her complaint. See Pl.'s Statement 35-36, ¶¶ 2-3. WMATA disputes this version of events and contends that Ms. Press, as an Employee Relations Officer, would not have handled equal employment opportunity issues, but instead would have handled "discipline matters, performance issue matters, [and]
Ms. Press was one of three Employee Relations Officers in WMATA's Office of Civil Rights and Human Resources. Pl.'s Statement 8, ¶ 72; accord Press Dep. 11:13-12:6, Pl.'s Statement Ex. 9, ECF No. 20-11. After Ms. Wang visited WMATA's Office of Civil Rights and Human Resources on September 11, 2013, Ms. Wang and Ms. Press exchanged emails that same day. Pl.'s Statement 39, ¶ 14; Def.'s Resp. Statement 11, ¶ 14. Their email exchange that day ended with an email from Ms. Wang to Ms. Press, in which Ms. Wang sought to describe what had happened between Ms. Wang and Mr. Greaves: "I am able to give you the timelines now so you can see what happened, briefly. Please see the attachment. I am also attaching the desk duties of my staff that Ian [Greaves] wants to take away from my group. Thanks." Pl.'s Statement 39, ¶ 14; Def.'s Resp. Statement 11, ¶ 14. Ms. Wang's email listed attachments titled "Timelines.docx" and "Desk Procedures — Detailed — Francisco Julia.docx," which provided a timeline of Ms. Wang's interactions with Mr. Greaves between September 5, 2013 and September 9, 2013, as well as a description of Mr. Julia's duties. Pl.'s Statement 39, ¶ 15; Def.'s Resp. Statement 11, ¶ 15; see also Pl.'s Statement Ex. 22, ECF No. 20-24 (reproducing Ms. Wang's email and the accompanying attachments). Ms. Wang and Ms. Press also had one conversation by phone. Def.'s Statement ¶ 53; Pl.'s Statement 3, ¶ 20.
On September 11, 2013, the same day as Ms. Wang's visit to WMATA's Office of Civil Rights and Human Resources, Ms. Wang received a second written warning from Mr. Greaves. Def.'s Statement ¶ 47; Pl.'s Statement 3, ¶ 16. The second warning, reproduced in full below, addressed Mr. Greaves and Ms. Wang's September 6, 2013 encounter, Ms. Wang's communication skills, and Ms. Wang's performance issues:
Def.'s Statement Ex. 16, ECF No. 19-16. This warning, like the first warning, did not change Ms. Wang's benefits, salary, or title. Def.'s Statement ¶¶ 47-48; Pl.'s Statement 3, ¶¶ 16-17.
As prefaced in the warning, Mr. Greaves placed Ms. Wang on a thirty-day corrective action plan at the same meeting in which he issued the warning. Pl.'s Statement 40, ¶ 18; Def.'s Resp. Statement 11, ¶ 18; see also Def.'s Statement ¶ 64 (indicating that the plan lasted thirty days); Pl.'s Statement 3, ¶ 22 (same). See generally Def.'s Statement Ex. 20, ECF No. 19-20 (reproducing the corrective action plan). The plan outlined goals for Ms. Wang to perform, with the purported overall purpose of improving her performance so that it would become "competent." Am. Compl. ¶ 173; Answer Am. Compl. ¶ 173.
On September 22, 2013, during the thirty-day corrective action plan period, Ms. Wang emailed Special Agent Coulter in WMATA's OIG about her situation. Pl.'s Statement 41, ¶ 1; Def.'s Resp. Statement 11, ¶ 1. Ms. Wang told Special Agent Coulter that she had been placed on a corrective action plan after telling Ms. Audette that she had complained to the OIG. Pl.'s Statement 41, ¶ 2; Def.'s Resp. Statement 11, ¶ 2. She also told Special Agent Coulter that the corrective action plan was "reprisal for speaking with the [O]IG" and that she was "being discriminated against because of [her] age, race and gender." Pl.'s Statement 41, ¶ 1; Def.'s Resp. Statement 11, ¶ 1.
In response, Special Agent Coulter told Ms. Wang to seek outside counsel, and Ms. Wang responded that she had already hired an attorney. Pl.'s Statement 41, ¶ 1; Def.'s Resp. Statement 11, ¶ 1. Special Agent Coulter also interviewed Ms. Wang a second time, on September 24, 2013. Pl.'s Statement 41, ¶ 3; Def.'s Resp. Statement 11, ¶ 3. See generally Def.'s Statement Ex. 15 (reproducing the audio file from Special Agent Coulter's second interview with Ms. Wang). During that interview, Ms. Wang stated that she had also contacted WMATA's Office of Civil Rights. Pl.'s Statement 41, ¶ 4; Def.'s Resp. Statement 11, ¶ 4.
Ms. Wang filed a Charge of Discrimination against WMATA with the United States Equal Employment Opportunity Commission (EEOC) on October 2, 2013. Am. Compl. ¶ 24; Answer Am. Compl. ¶ 24; Pl.'s Statement 41-42, ¶ 6; Def.'s Statement 11, "Page 41 of 63," ¶ 6. Her
On October 10, 2013, WMATA terminated Ms. Wang's employment as WMATA's Financial Control Manager. Def.'s Statement ¶¶ 1, 72; Pl.'s Statement 1, ¶ 1; id. at 3, ¶ 23. Ms. Wang's termination letter cited Ms. Wang's unsatisfactory performance on her corrective action plan:
Def.'s Statement Ex. 1, ECF No. 19-3. At the time of Ms. Wang's termination, problems with the IFO Project persisted. Am. Compl. ¶ 120; Answer Am. Compl. ¶ 120; see also supra Parts II.B.2, II.C.3 (recounting the problems WMATA experienced with the IFO Project). WMATA received a copy of Ms. Wang's EEOC Charge after Ms. Wang was terminated. Def.'s Statement ¶ 61; Pl.'s Statement 3, ¶ 21.
After exhausting administrative remedies, Ms. Wang filed suit against WMATA in this Court. See Am. Compl. ¶¶ 24-27; Answer Am. Compl. ¶¶ 24-27. Ms. Wang claims that WMATA violated Title VII of the Civil Rights Act of 1964
WMATA now moves for summary judgment on all of Ms. Wang's claims. See Def.'s Mot. Summ. J., ECF No. 19. For Ms. Wang's Title VII discrimination and retaliation claims, WMATA argues that, among other reasons for summary judgment, WMATA had legitimate non-discriminatory reasons for terminating Ms. Wang's employment: namely, a "history of performance complaints," which included Ms. Wang's failure, in WMATA's view, to meet the expectations of her position as expressed in her final corrective action plan. See Def.'s Mem. P. & A. Supp. Def.'s Mot. Summ. J. 8-30, ECF No. 19-1 [hereinafter Def.'s Mem.]. For Ms. Wang's ARRA retaliation claim, WMATA argues that (1) Ms. Wang cannot establish that any whistleblowing disclosures she made were related to funds specified in the ARRA, (2) Ms. Wang did not make disclosures that the ARRA's whistleblower provision protects, and (3) Ms. Wang cannot show that any protected disclosures caused her termination. See id. at 30-38. Before discussing the merits of WMATA's summary judgment motion, the Court reviews the applicable legal standard.
Under Rule 56 of the Federal Rules of Civil Procedure, a court must 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." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The inquiry under Rule 56 is essentially "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The principal purpose of summary judgment is to determine whether there is a genuine need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-movant may not rest upon mere allegations or denials but must instead present affirmative evidence. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987) (citing Anderson, 477 U.S. at 257, 106 S.Ct. 2505).
In considering a motion for summary judgment, a court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007). All underlying facts and inferences must be analyzed in the light most favorable to the non-movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).
The Court addresses Ms. Wang's Title VII claims before turning to her ARRA retaliation claim.
Under Title VII, employers may not "refuse to hire," "discharge," or "otherwise... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" because of the individual's "race ..., sex, or national origin." 42 U.S.C. § 2000e-2(a). Title VII also contains an antiretaliation provision, which "forbids employer actions that `discriminate against' an employee ... because he has `opposed' a practice that Title VII forbids or has `made a charge... or participated in' a Title VII `investigation, proceeding, or hearing.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting 42 U.S.C. § 2000e-3(a)).
In this circuit, two key cases out-line the litigation framework for Title VII discrimination and retaliation cases: McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Brady v. Office of the Sergeant at Arms, 520 F.3d 490 (D.C.Cir.2008). The
In the D.C. Circuit, Brady streamlines the McDonnell Douglas framework when, in considering a motion for summary judgment, the Court immediately observes that a plaintiff suffered an "adverse employment action" and that her employer asserted a "legitimate, non-discriminatory reason" for the alleged discrimination or retaliation. See 520 F.3d at 494; see also Jones v. Bernanke, 557 F.3d 670, 678-79 (D.C.Cir.2009) (explaining that Brady's "principles apply equally to retaliation claims"). That is the case here: Ms. Wang suffered an adverse employment action when WMATA terminated her employment. See Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009) (listing possible adverse employment actions, and including "firing" as one of them (quoting Taylor, 350 F.3d at 1293)). By arguing that Ms. Wang's termination flowed from Ms. Wang's history of inadequate work performance, WMATA has asserted a legitimate, non-discriminatory reason for Ms. Wang's termination. See Def.'s Mem. 23-30 (arguing that Ms. Wang had "a history of performance complaints at WMATA").
In this case, therefore, Brady directs the Court to forgo McDonnell Douglas and instead to resolve one central question: "Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory or [non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race..., sex, or national origin [or retaliated against her because of her protected Title VII activity]?" Brady, 520 F.3d at 494; see also McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C.Cir.2012) (adopting Brady's formulation in a retaliation case). Phrased in terms of the facts of this case, the Court must consider whether Ms. Wang has produced sufficient evidence for a reasonable jury to find (1) that Ms. Wang's work performance was "not the actual reason" for her termination and (2) that WMATA intentionally discriminated against Ms. Wang on the basis of her race, sex, or national origin, or retaliated against her because she opposed a practice made unlawful under Title VII. To answer these questions, the Court must examine the totality of the evidence and ask "whether the jury could infer discrimination [or retaliation] from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination [or retaliation] that may be available to the plaintiff ... or any contrary evidence that may be available to the employer." Hamilton v. Geithner, 666 F.3d 1344,
WMATA argues that it should receive summary judgment on Ms. Wang's discrimination claims for three principal reasons: (1) many of WMATA's allegedly discriminatory acts are not adverse employment actions on which a Title VII plaintiff can base her discrimination claims, (2) Ms. Wang lacks the similarly situated comparators that WMATA contends are necessary to establish Ms. Wang's discrimination claims, and (3) WMATA had legitimate, non-discriminatory reasons for terminating Ms. Wang. See Def.'s Mem. 8-17, 23-30. Ms. Wang responds by arguing that she can establish a prima facie case of discrimination and that WMATA's stated reasons for her termination are a pretext for discrimination. See Pl.'s Mem. P. & A. Opp'n Def.'s Mot. Summ. J. 26-32, ECF No. 20 [hereinafter Pl.'s Opp'n]. Before addressing the arguments about WMATA's legitimate, non-discriminatory reasons for Ms. Wang's termination and whether those reasons were pretextual, the Court first addresses the arguments relating to a prima facie case of discrimination.
As discussed earlier, under Brady v. Office of the Sergeant at Arms, 520 F.3d 490 (D.C.Cir.2008), the Court need not examine whether Ms. Wang has made out a prima facie case of discrimination, because Ms. Wang suffered an adverse employment action (she was terminated) and WMATA has asserted a legitimate, non-discriminatory reason for her termination (Ms. Wang's history of inadequate work performance). See supra Part IV.A.1; see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (explaining that, in these circumstances, the Court "need not — and should not — decide whether the plaintiff actually made out a prima facie case" (quoting Brady, 520 F.3d at 494)). Of course, in a case in which an employer's action does not clearly qualify as an adverse employment action, "the Court still first must determine whether plaintiff suffered an adverse employment action." Donovan v. Powell, No. 107913, 2016 WL 107913, at *4 (D.D.C. Jan. 8, 2016) (internal quotation mark omitted) (quoting Adesalu v. Copps, 606 F.Supp.2d 97, 103 (D.D.C.2009)); see also Brady, 520 F.3d at 494 (indicating that, even though a plaintiff need not establish a prima facie case to defend against a motion for summary judgment, she still must show that she "has suffered an adverse employment action").
WMATA does not dispute that terminating Ms. Wang was an adverse employment action. See Def.'s Mem. 9 n.2 ("WMATA concedes that termination is an adverse employment action."). And Ms. Wang does not, in her summary judgment briefing, offer other WMATA actions as adverse employment actions on which she bases her discrimination claims. See Pl.'s Opp'n 27 (indicating that Ms. Wang established an adverse employment action because "WMATA undoubtedly terminated her"). By declining to respond to WMATA's argument about other potential adverse employment actions in this case, Ms. Wang has conceded the issue to WMATA. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) ("[W]hen a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by
But even though those three categories of WMATA actions are not adverse employment actions on their own, WMATA incorrectly contends that they "therefore must be disregarded from consideration of [Ms. Wang's] discrimination claims." Def.'s Mem. 13. Instead, "[w]hen determining whether summary judgment... is warranted for the employer, the court considers all relevant evidence presented" by the parties. Brady, 520 F.3d at 495 (emphasis added). "All" relevant evidence means
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C.Cir.2006) (quoting Holcomb v. Powell, 433 F.3d 889, 896 (D.C.Cir. 2006)). "[T]he court reviews each of the three relevant categories of evidence — prima facie, pretext, and any other — to determine whether they `either separately or in combination' provide sufficient evidence for a reasonable jury to infer [discrimination or] retaliation." Jones, 557 F.3d at 679 (quoting Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C.Cir.2002)).
Here, Mr. Greaves's statements, Ms. Wang's written warnings, and Ms. Wang's corrective action plan are at least "independent evidence of discriminatory statements or attitudes on the part of the employer." Mastro, 447 F.3d at 855 (quoting Holcomb, 433 F.3d at 896). And, in fact, one could argue that they were building blocks that culminated in the termination. Accordingly, the Court will not disregard these actions, but instead will consider them as part of the evidence that the Court must review to determine whether a reasonable jury could infer discrimination against Ms. Wang on the basis of her race, sex, or national origin. See infra Part IV. A.2.c (undertaking this inquiry).
Before resolving the "central question" required by Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir. 2008), the Court addresses WMATA's argument that Ms. Wang cannot show that "other similarly situated employees [that were] not members of her protected class[ ] did not suffer similar adverse actions." Def.'s Mem. 13 (brackets omitted) (quoting Mack v. Strauss, 134 F.Supp.2d 103, 114 (D.D.C.2001)). WMATA contends
To be sure, to make out a prima facie case of discrimination, the plaintiff may "demonstrate (1) that she is a member of a protected class; (2) that she was similarly situated to an employee who was not a member of the protected class; and (3) that she and the similarly situated person were treated disparately." Holbrook v. Reno, 196. F.3d 255, 261 (D.C.Cir.1999). "But this is not the only way" in which a plaintiff can make out a prima facie case of discrimination. George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005). Furthermore, as mentioned before, when the plaintiff has suffered an adverse employment action and the employer has advanced a legitimate, non-discriminatory reason for that action, then "the question whether the employee actually made out a prima facie case is `no longer relevant' and thus `disappears' and `drops out of the picture.'" Brady, 420 F.3d at 493-94 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Because that is the case here, see supra Part IV.A.1, Ms. Wang need not produce similarly situated comparators for two reasons: (1) she can create an inference of discrimination to make out a prima facie case by other means; and (2) given WMATA's stated legitimate, non-discriminatory reasons for terminating Ms. Wang, the Court need not decide whether Ms. Wang actually made out a prima facie case of discrimination. See Brady, 420 F.3d at 494 (explaining that, in these circumstances, "the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case"). For these reasons, WMATA's comparator-based argument is incorrect under the law, and the Court will not consider it further.
The Court turns, at last, to the "central question" it must resolve in considering WMATA's motion for summary judgment on Ms. Wang's discrimination claims: whether Ms. Wang has produced sufficient evidence for a reasonable jury to find (1) that Ms. Wang's work performance was "not the actual reason" for her termination and (2) that WMATA intentionally discriminated against Ms. Wang on the basis of her race, sex, or national origin. See Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). Ms. Wang can meet her burden of production in multiple ways. Id. at 495. She can "suggest[] that the employer treated other employees of a different race ..., sex, or national origin more favorably," or "attempt to demonstrate that [WMATA] is making up or lying about the underlying facts that formed the predicate for the employment decision." Id.
In Ms. Wang's summary judgment brief, she contends that a "mosaic of circumstantial evidence, ... viewed in the light most favorable to [Ms.] Wang, permits a jury to reject WMATA's proffered reasons for firing [Ms.] Wang and [to] infer discrimination based on race, national origin, and gender." Pl.'s Opp'n 32. Ms. Wang's evidence includes
Id. at 31-32. The Court first turns to the evidence about Ms. Wang's corrective action plan (items (1), (2), and (3) above) before discussing evidence about Mr. Greaves's statements (items (4), (5), (6), and (7) above).
When an employee fails to improve her work performance and does not successfully complete a corrective action plan, her employer can justifiably terminate her based on that unsuccessful performance. See, e.g., Brown v. Vance-Cooks, 920 F.Supp.2d 61, 67-68 (D.D.C.2013) (noting that the plaintiff failed to dispute his lack of improvement during his performance improvement plan period, and concluding that his omission meant that he could not "demonstrate [the] falsity of the criticisms of his performance"). In a typical
Here, however, Ms. Wang implies that the corrective action plan itself flowed from Mr. Greaves's allegedly discriminatory animus. See Am. Compl. ¶ 206 (alleging discrimination because Mr. Greaves "harshly ... disciplined" Ms. Wang); Pl.'s Opp'n 31-32 (contending that the correction action plan was unwarranted and that its terms were unreasonable); Wang Dep. 64:12-65:1, Pl.'s Statement Ex. 21, ECF No. 20-23 ("[T]he first warning, the second warning, the corrective action plan[—]I think they're all based on discrimination."). Because the plan itself could have been discriminatory, the Court follows the D.C. Circuit's directive and will not consider it as evidence that Ms. Wang was performing below WMATA's legitimate expectations:
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 853-54 (D.C.Cir.2006); see also id. at 856 (explaining that employers cannot claim "that the mere fact that they conducted an investigation and fired [the employee] as a result should insulate their actions from further scrutiny," when "sufficient evidence exists for a jury to conclude... that discriminatory treatment may have permeated the investigation itself").
Accordingly, in reviewing the corrective action plan, its terms, and how WMATA monitored Ms. Wang's performance on the corrective action plan, the Court analyzes whether that evidence calls into question the plan's fairness and impartiality. See generally id. at 855-57 (assessing whether an employer's pre-termination investigation into an employee's conduct appeared fair and impartial). If a reasonable jury could find that the WMATA personnel monitoring the corrective action plan appear not to be credible, or that the overall plan appears to lack fairness or impartiality, the Court may not credit WMATA's view of the plan over Ms. Wang's. See id. at 857 ("Although a jury may ultimately decide to credit the version of the events described by the employer over that offered by the employee, this is not a basis upon which a court may rest in granting a motion for summary judgment." (brackets and internal quotation marks omitted) (quoting George v. Leavitt, 407 F.3d 405, 413 (D.C.Cir.2005))). Along these lines, the Court cannot grant summary judgment if a reasonable jury could conclude that WMATA's assessment of Ms. Wang's conduct was "an inquiry colored by ... discrimination." See id. (reversing the district's order of summary judgment after finding that a jury could conclude that the employer's investigation was unfair, partial, and discriminatory).
On the evidence presented in this case, the Court determines that a reasonable jury could conclude that Ms. Wang's corrective action plan was unfair, partial, and created solely to accelerate her termination. The evidence reveals several circumstances in connection with the plan that were potentially unfair to Ms. Wang.
First, Mr. Greaves contemplated terminating Ms. Wang's employment as early as
Second, Ms. Wang received her corrective action plan on September 11, 2013, but the plan made four of the plan's ten performance goals due on that same day. See Def.'s Statement Ex. 20, at 1, 5-11, ECF No. 19-20 (reproducing Ms. Wang's corrective action plan, and showing that the first four performance goals were due on September 11, 2013). Although evidence shows that WMATA later specified that one of those four goals had an "ongoing" due date,
Third, Ms. Wang's corrective action plan shows that Mr. Greaves evaluated her performance based, at least in part, on subjective criteria. "Although `employers may of course take subjective considerations into account in their employment decisions,' ... heavy reliance on subjective criteria may be used to `mask' or `camouflage' discrimination." Hamilton v. Geithner, 666 F.3d 1344, 1356 (D.C.Cir.2012) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298 (D.C.Cir.1998) (en banc)). The Court accordingly treats the subjective explanations for Ms. Wang's performance on her corrective action plan "with caution." Id. Viewing Mr. Greaves's comments on Ms. Wang's performance from this perspective, the Court notes that Ms. Wang's performance on one deliverable rested entirely on subjective considerations, and that Mr. Greaves's criticisms about Ms. Wang's performance often rested on subjective considerations.
Fourth, evidence in the record supports Ms. Wang's contention that some of her corrective action plan's performance goals were not within her normal work responsibilities. See Pl.'s Opp'n 20 ("[Ms.] Wang... had not previously completed certain tasks outlined in the [corrective action plan] because they were not assigned to her."). An email from Lori Lloyd-Smith, another WMATA employee, indicates that updating the quarterly closing checklist (the fourth goal on Ms. Wang's corrective action plan) was previously Ms. Lloyd-Smith's responsibility.
From the evidence about all these circumstances surrounding Ms. Wang's corrective action plan, a reasonable jury could conclude that the plan was so "inexplicably unfair" that it was a pretext for discrimination. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855-57 (D.C.Cir.2006).
Although the above-referenced evidence of pretext is sufficient to submit Ms. Wang's discrimination claims to a jury, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ("The factfinder's disbelief of the reasons put forward by the defendant... may, together with the elements of the
As noted before, Ms. Wang suggests that Mr. Greaves made several statements that could show his discriminatory intent:
Pl.'s Opp'n 32.
The first two statements highlight instances in which Mr. Greaves's account of events differs from others'. For those statements, evidence supports Ms. Wang's assertions about Mr. Greaves's and others' differing opinions.
Ms. Wang's last two sets of statements highlight instances that could suggest that Mr. Greaves might possess discriminatory attitudes toward foreigners and toward women. As with the first two statements, evidence — including evidence aside from Ms. Wang's own opinions — supports Ms. Wang's assertions about the last two sets of statements.
The four sets of statements highlighting Mr. Greaves's positions and attitudes, combined with evidence relating to Ms. Wang's corrective action plan, show that WMATA's pre-termination procedures for Ms. Wang may have been "inexplicably unfair," Mastro, 447 F.3d at 855, and that Mr.
The Court turns next to Ms. Wang's Title VII retaliation claim. "To prove unlawful retaliation, a plaintiff must show: (1) that [she] opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against [her]; and (3) that the employer took the action `because' the employee opposed the practice." McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012); see also id. at 1380 n. 3 (explaining that, "[a]lthough these [elements] are often described as the elements that a plaintiff must show to establish a `prima facie' case of retaliation," they are also the elements that a plaintiff must ultimately prove in order to win [her] case" (citation omitted)).
In support of summary judgment in its favor on Ms. Wang's Title VII retaliation claim, WMATA repeats some arguments it made about Ms. Wang's discrimination claims and also makes some retaliation-specific arguments. WMATA argues that
See Def.'s Mem. at 17-30. In response, Ms. Wang asserts
See Pl.'s Opp'n 32-37. The Court addresses each of the parties' arguments in the context of the three elements Ms. Wang must prove.
Under Title VII, a plaintiff can establish the first element of a retaliation case in two ways: (1) by opposing any practice that Title VII makes an unlawful employment practice, or (2) by making a charge, testifying, assisting, or participating in any manner in a Title VII investigation, proceeding, or hearing. 42 U.S.C. § 2000e-3(a); accord Borgo v. Goldin, 204 F.3d 251, 255 & n. 4 (D.C.Cir.2000) (recognizing the two ways in which a plaintiff may allege retaliation). The "opposition clause" protects a broad range of informal actions or statements that employees make in resistance to actions they reasonably perceive to be discriminatory. See Crawford v. Metro. Gov't, 555 U.S. 271, 276-78 (2009) (explaining that "opposition" includes "tak[ing] no action at all to advance a position beyond disclosing it"); Grosdidier
The parties do not dispute that Ms. Wang never filed a discrimination complaint against WMATA through WMATA's internal processes. See Def.'s Statement ¶¶ 49-63 (describing Ms. Wang's interactions with WMATA's Office of Civil Rights without mentioning that Ms. Wang filed a discrimination complaint); Pl.'s Statement 35-40 (same). Thus, Title VII's "participation clause" protects only Ms. Wang's legal efforts, through external processes, to combat the discrimination that she perceived. The "participation clause" therefore extends to just Ms. Wang's EEOC Charge, filed on October 2, 2013, and her participation in the administrative and judicial proceedings that the EEOC charge triggered. See Am. Compl. ¶ 24 (indicating that Ms. Wang filed her EEOC Charge on October 2, 2013); Answer Am. Compl. ¶ 24 (same); see also Def.'s Statement Ex. 19, ECF No. 19-19 (reproducing the EEOC's Notice of Charge of Discrimination, issued to WMATA). Because Ms. Wang lodged an "official EEOC complaint[]," her EEOC charge was a protected activity under the "participation clause" for Title VII retaliation cases. Although WMATA contends that it did not receive notice of Ms. Wang's EEOC Charge until after her termination, the Court addresses that issue later, in the context of whether Ms. Wang can establish a causal link between the EEOC Charge and her termination. See infra Part IV. A.3.c.
The Court now turns to Ms. Wang's activities at WMATA to determine whether, within WMATA, she engaged in "opposition" activity that Title VII protects from retaliation. The Court examines Ms. Wang's activities at WMATA in three categories. As an initial matter, the Court finds that Ms. Wang took two actions at WMATA that, by virtue of how clearly they imply discrimination allegations, receive protection from retaliation under Title VII:
Def.'s Statement Ex. 18, ECF No. 19-18 (reproducing Ms. Wang's emails). Because "[n]ot every complaint garners its author protection under Title VII," a plaintiff in a retaliation case "must in some way allege unlawful discrimination" to engage in protected Title VII activity. Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006).
Ms. Wang also testified about another incident in which she explicitly communicated discrimination allegations to WMATA. In her deposition, Ms. Wang stated that, during her September 11, 2013 visit to WMATA's Office of Civil Rights and Human Resources, she said "I have a discrimination complaint" to an employee there. Wang Dep. 226:11-227:6, Pl.'s Statement Ex. 1, ECF No. 20-3. WMATA disputes this fact and alleges that "no one else can corroborate Ms. Wang's claim that Ms. Wang mentioned discrimination" during that visit. See Def.'s Statement ¶ 57; Def.'s Resp. Statement 10, "Page 35 of 63," ¶ 3. Because the Court generally may not resolve disputed material facts on summary judgment, see Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007) (holding that, on summary judgment, the Court must "eschew ... weighing the evidence"), the Court assumes for now that Ms. Wang did explicitly allege discrimination during her September 11 visit to WMATA's Office of Civil Rights and Human Resources — and thus that her allegation there also qualifies as a protected activity for her retaliation claim. See Powell, 629 F.Supp.2d at 39. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining that, on summary judgment, the Court must analyze all underlying facts and inferences in the light most favorable to the non-movant). As with Ms. Wang's emails to Special Agent Coulter, the Court postpones discussion of whether Ms. Wang can establish causation based on her September 11 allegation of discrimination. See infra Part IV.A.3.c (discussing causation).
Of the possible protected activities in this case, a final category encompasses certain actions that Ms. Wang took, by which Ms. Wang arguably "opposed" the events that led to her termination, but which did not include explicit mention of "discrimination" or "EEO" issues. Dividing this category of actions into three groups, the Court briefly recounts them before discussing whether they might be protected activities.
First, Ms. Wang emailed Ms. Audette on September 5, 2013 after the meeting in which Mr. Greaves announced that he wanted to transfer one of Ms. Wang's staff members to another WMATA component. See Pl.'s Statement Ex. 17, ECF No. 20-19 (reproducing the email). In her email, Ms. Wang stated that "[she] felt that [she was] being taken advantage of because [she does] not complain and just get[s] the job done" and that "[she was] not sure about [her] next step," but hoped to discuss the
Second, the next day, Ms. Wang and Mr. Greaves had a conversation, in which Ms. Wang suggested that she might hire a lawyer, and after which Ms. Wang had the impression of being terminated. Pl.'s Statement 26-27, ¶ 3; Def.'s Resp. Statement 8-9, "Page 25 of 63," ¶ 3. Ms. Wang alleges that, during their September 6 conversation, after Ms. Wang told Ms. Greaves that, because of his yelling and screaming, Mr. Greaves "seem[ed] to abuse [his] authority," Mr. Greaves replied that "[a]buse would be a word you would tell a lawyer." Wang Dep. 194:3-7, 206:2-6, 212:10-214:12, Pl.'s Statement Ex. 1, ECF No. 20-3. According to Ms. Wang, after she replied "[m]aybe," Mr. Greaves became very excited, pointed his finger to Ms. Wang's nose, and said "You're fired. You're fired. You're fired immediately." Id. at 214:12-20. Mr. Greaves disagrees with Ms. Wang's version of events but admits that Ms. Wang may have mentioned that she might retain an attorney because "[t]hat's the ... normal retaliation speech that you would get." Greaves Dep. 147:16-150:18, Pl.'s Statement Ex. 3, ECF No. 20-5. Because the Court may not make credibility determinations or weigh the evidence on summary judgment, Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007), the Court will view the record in the light most favorable to Ms. Wang and accept her version of events for purposes of this opinion. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Ms. Wang does not, however, claim that she mentioned unlawful discrimination during the September 6 conversation. See Wang Dep. 212:10-214:20.
Third, Ms. Wang paid WMATA's OIG two visits, on September 6, 2013 and September 24, 2013. See Def.'s Statement Ex. 15 (reproducing an audio recording of Ms. Wang's OIG interviews on those two dates). Ms. Wang does not mention unlawful discrimination in either of the two recorded interviews that took place during her OIG visits. See Def.'s Statement Ex. 15.
In determining whether these three groups of activities are activities that Title VII protects, the Court must heed the D.C. Circuit's directive that, "while no `magic words' are required, the [plaintiff's] complaint [or actions] must in some way allege unlawful discrimination" to be protected activity. Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006). Thus, "ambiguous complaints that do not make the employer aware of alleged discriminatory misconduct do not constitute protected activity." Clemmons v. Acad. for Educ. Dev., 107 F.Supp.3d 100, 128 (D.D.C.2015) (quoting Int'l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y.2007)). Courts in this Circuit therefore require the plaintiff to communicate to the employer "alleged discriminatory conduct or ill-treatment based on her race, color, religion, sex, or national origin," or at least to require the plaintiff to allege that she believed that she was reporting discriminatory conduct. Magowan v. Lowery, No. 15-0917, 2016 WL 778351, at *18 (D.D.C. Feb. 29, 2016); see also Richardson v. Petasis, No. 13-0826, 160 F.Supp.3d 88 2015 WL 8082244, at *29-31 (D.D.C. Dec. 7, 2015); Uzoukwu v. Metro. Wash. COG, 130 F.Supp.3d 403, 416-17 (D.D.C.2015); Brooks v. Kerry, 37 F.Supp.3d 187, 197 n. 4 (D.D.C.2014). Although courts have held that protected "opposition" activity need not be an explicit discrimination complaint voiced by the plaintiff and communicated to her employer, the law requires, in the
With these principles in mind, the Court determines that Ms. Wang's September 5 email to Ms. Audette, Ms. Wang's September 6 conversation with Mr. Greaves, and Ms. Wang's September 6 and September 24 OIG visits were not protected activities under Title VII. As noted above, none of these actions included explicit allegations of discrimination. Nor did they allege conduct that, if true, would plainly signal discrimination. Ms. Wang's September 5 email alleged that Ms. Wang was "being taken advantage of because [she does] not complain and just get[s] the job done." Pl.'s Statement Ex. 17, ECF No. 20-19. Even if Ms. Wang's allegation had been true, it would not necessarily imply discrimination. Any employee — regardless of his or her race, sex, or national origin — could raise a concern about inequitable distribution of work. Broderick, 437 F.3d at 1232 (noting that "complaining about being `picked on,' without mentioning discrimination or otherwise indicating that gender was an issue, does not constitute protected activity, even if the employee honestly believes she is the subject of sex discrimination" (citing Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727-28 (7th Cir. 2003))).
And even though Ms. Wang accused Mr. Greaves on September 6 of abusing his authority and indicated that she might hire a lawyer, Ms. Wang's statements were "untethered to an allegation that [Mr. Greaves's] conduct occurred because of [Ms. Wang's] membership in a protected class." Clemmons, 107 F.Supp.3d at 130. Lacking that critical allegation, the statements merely alleged a "workplace complaint," not protected activity. See id. (explaining that, in these circumstances, even "`somewhat magical' words like `bias,' `prejudice,' and `hostile work environment[]'" do not make a plaintiff's statements protected Title VII activity).
Ms. Wang's OIG visits fail for the same reason: Because Ms. Wang never alleged unlawful discrimination under Title VII during those visits, her visits signaled only that she was reporting non-discriminatory "fraud, waste, or abuse," which is the kind of allegation that WMATA's OIG typically handles. See Def.'s Statement Ex. 15, at 27:33-40 (reproducing the audio file from Ms. Wang's September 6, 2013 interview with WMATA's OIG, in which Special Agent Coulter discusses the OIG's responsibilities). Indeed, this Court has explicitly held that "Title VII does not bar ill treatment because an employee complains to an inspector general ... or because a manager engages in actions perceived as harassment after such an IG complaint." Cole v. Boeing Co., 75 F.Supp.3d 70, 78 (D.D.C. 2014); see also Hunter v. District of Columbia,
The Court summarizes its analysis of the first element of Ms. Wang's Title VII retaliation case (whether Ms. Wang engaged in protected activity under Title VII). First, Ms. Wang engaged in protected activity under the "participation clause" when she filed her EEOC Charge on October 2, 2013. Second, Ms. Wang engaged in protected activities under the "opposition" clause when she emailed Special Agent Coulter on September 6 and September 22, because she explicitly alleged discrimination and sought the contact information for WMATA's EEO office. Third, Ms. Wang engaged in further protected "opposition" activity when she allegedly made a discrimination allegation at WMATA's Office of Civil Rights on September 11. But Ms. Wang's September 5 email to Ms. Audette, Ms. Wang's September 6 conversation with Mr. Greaves, and Ms. Wang's September 6 and September 24 OIG visits are not protected "opposition" activities under Title VII, because they did not "in some way allege unlawful discrimination." Broderick, 437 F.3d at 1232. The Court now turns to the second and third retaliation elements.
To establish the second element of a Title VII retaliation claim, the plaintiff must show that her employer took a materially adverse action against her. McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012). Just as WMATA argued that Ms. Wang's written warnings and corrective action plan cannot be adverse employment actions for purposes of Ms. Wang's discrimination claims, WMATA argues that they cannot be materially adverse actions for purposes of her Title VII retaliation claim. See Def.'s Mem. 9-12, 18. Ms. Wang does not argue otherwise, see Pl.'s Opp'n 32-37, and so the Court finds that Ms. Wang's written warnings and corrective action plan are not materially adverse actions upon which Ms. Wang may base her Title VII retaliation claim. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) ("[W]hen a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."). On the other hand, Ms. Wang's termination is, of course, a materially adverse action on which she can base her retaliation claim. See Baird v. Gotbaum, 662 F.3d 1246, 1248-49 (D.C.Cir. 2011) (explaining that "the `adverse action' concept has a broader meaning" in the retaliation context, so that it encompasses at least the "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or ... significant change in benefits" that are adverse employment actions in the discrimination context (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009))).
The third element of a Title VII retaliation claim requires the employee to show "that the employer took a materially adverse action against the employee `because' the employee opposed a protected practice." McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C.Cir.2012). To survive summary judgment, therefore, the employee "must demonstrate that there is a genuine issue of material fact as to
Before analyzing whether Ms. Wang can establish causation, the Court first recounts the timeline of events leading to Ms. Wang's termination that are relevant to this inquiry, with Ms. Wang's protected activities italicized:
Ms. Wang's termination on October 10 (item (11) above) is the only materially adverse action in this case. See supra Part IV.A.3.b.
Having recounted the timeline of events, the Court can now address WMATA's argument that, because Mr. Greaves had no knowledge of Ms. Wang's protected activities, those activities could not have caused Mr. Greaves's decision to terminate Ms. Wang's employment. To show causation, the plaintiff must show that the employer "had knowledge of her protected activity, and that the adverse personnel action took place shortly after that activity." Holbrook v. Reno, 196 F.3d 255, 263 (D.C.Cir.1999) (brackets and internal quotation marks omitted) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C.Cir.1985)). A plaintiff's supervisor thus could not have retaliated against the plaintiff unless he "had knowledge of [her] protected activity." Jones v. Bernanke, 557 F.3d 670, 679 (D.C.Cir.2009). Likewise, "an adverse employment action that was already contemplated before a plaintiff engaged in protected activity cannot be evidence of retaliation." Terveer v. Billington, 34 F.Supp.3d 100, 119 (D.D.C.2014) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)).
With respect to Ms. Wang's protected activity under the "participation clause" — her EEOC charge and any subsequent proceedings before the EEOC or this Court — the parties agree that Ms. Wang was terminated before WMATA received notice of Ms. Wang's EEOC Charge. See Def.'s Statement ¶ 61; Pl.'s Statement 3, ¶ 21; see also Def.'s Statement Ex. 19, ECF No. 19-19 (reproducing the EEOC's Notice of Charge of Discrimination, which was stamped as received by WMATA on October 17, 2013 — a week after Ms. Wang's termination on October 10, 2013). On this record, WMATA could not have known about Ms. Wang's EEOC Charge until after her termination, and hence WMATA's knowledge about Ms. Wang's EEOC Charge could not have caused her termination. Thus, for any retaliation claim based on the EEOC Charge and the proceedings that it triggered, Ms. Wang cannot establish the causation element that is necessary for her Title VII retaliation claim.
"To survive summary judgment, however, [the plaintiff] needn't provide direct evidence that [her] supervisors knew of [her] protected activity; [she] need only offer circumstantial evidence that could reasonably support an inference that they did." Jones v. Bernanke, 557 F.3d 670, 679 (D.C.Cir.2009); accord Kacian v. Postmaster Gen., No. 15-1952, 653 Fed.Appx. 125, 2016 WL 3509564, at *4 (3d Cir. June 27, 2016); Román v. Castro, 149 F.Supp.3d 157, 171-72 (D.D.C.2016). "[T]hat `the employer had knowledge of the employee's protected activity and the adverse personnel action took place shortly after that activity'" can be "adequate to permit an inference of retaliatory motive" on the part of a supervisor. Jones, 557 F.3d at 679 (emphasis in original) (internal quotation marks omitted) (quoting Holcomb v. Powell, 433 F.3d 889, 903 (D.C.Cir.2006)).
Here, assuming Ms. Wang's version of the facts to be true for purposes of this opinion, Ms. Wang can meet this standard and show (1) that her employer had knowledge of her protected activities, and (2) that the adverse personnel action took place shortly after those activities. The record shows that the employer (WMATA) had knowledge of Ms. Wang's protected activity because Ms. Wang had raised explicit discrimination allegations to WMATA's employees.
The record thus supports an inference that Ms. Wang's supervisor, Mr. Greaves, knew about Ms. Wang's protected activity because he terminated her shortly after Ms. Wang's employer, WMATA, learned about her protected activity. And even though circumstantial evidence of temporal
Beyond temporal proximity, additional circumstantial evidence exists that reasonably supports an inference that Mr. Greaves knew about at least one of Ms. Wang's protected activities: Belinda Press, a WMATA employee relations officer, attended the September 11 meeting in which Ms. Wang received her corrective action plan from Mr. Greaves. And circumstances surrounding that meeting indicate that Ms. Press could have told Mr. Greaves about the discrimination allegation that Ms. Wang claims to have made at WMATA's Office of Civil Rights and Human Resources. Below, the Court discusses the evidence supporting this theory of events.
The record shows that Mr. Greaves was aware of at least one of Ms. Wang's visits to WMATA's OIG or to WMATA's human resources department, even if he was not aware of what she stated during that visit. See Greaves Dep. 239:1-240:3 (admitting that Mr. Greaves heard a "rumor about [Ms. Wang] complaining to HR or OIG"). During his deposition, Mr. Greaves stated that he did not know when he had become aware of Ms. Wang's visits to OIG or to the human resources department, but Mr. Greaves did admit that "it could have been before" Ms. Wang's termination. See id. Mr. Greaves could have learned about Ms. Wang's September 11 visit to WMATA's Office of Civil Rights and Human Resources, thus, at any time between the time the visit occurred and Ms. Wang's termination on October 10.
The record also shows that, later in the day after Ms. Wang's September 11 visit to WMATA's Office of Civil Rights and Human Resources, Mr. Greaves issued Ms. Wang a second written warning and a corrective action plan. See Wang Dep. 238:12-242:1, Pl.'s Statement Ex. 1, ECF No. 20-3 (describing how Ms. Wang received the second written warning and the corrective action plan at a 4:30 PM meeting with Mr. Greaves and WMATA Employee Relations Officer Belinda Press); Pl.'s Statement Ex. 22, ECF No. 20-24 (showing that, on September 11 before Ms. Wang's 4:30 PM meeting with Mr. Greaves, Ms. Wang had established contact with Belinda Press from WMATA's Office of Civil Rights and Human Resources). But the meeting was not just between Mr. Greaves and Ms. Wang. A third person attended: Belinda Press, the very person, based on Ms. Wang's version of events, to whom Ms. Wang had been referred at WMATA's Office of Civil Rights and Human Resources. See Wang Dep. 226:14-229:5 (stating that Ms. Wang met Ms. Press during her September 11 visit to the Office of Civil Rights and Human Resources); id. at 238:12-242:1 (stating that Ms. Press was present at the meeting in which Ms. Wang received her corrective action plan). What is more, Ms. Press was the same person to whom, immediately before the 4:30 PM meeting with Mr. Greaves, Ms. Wang had been communicating concerns about Mr. Greaves's management. See Pl.'s Statement Ex. 22 (showing that Ms. Wang emailed Ms. Press about Mr. Greaves at 4:03 PM on September 11).
The record thus indicates that one person — Belinda Press — both knew the details Ms. Wang's discrimination allegations and had the opportunity to communicate them to Mr. Greaves. Indeed, Ms. Press has stated that, to review the corrective action plan, she may have met with Mr.
In light of WMATA's knowledge of Ms. Wang's protected activity, the temporal proximity between Ms. Wang's protected activity and her termination, and circumstantial evidence from which a reasonable jury could infer that Mr. Greaves knew about at least one of Ms. Wang's protected activities, the Court determines that Ms. Wang has sufficient record evidence to refute the argument that Mr. Greaves had no knowledge of Ms. Wang's protected activities. See Def.'s Mem. 18-23 (making that argument). See generally Holbrook v. Reno, 196 F.3d 255, 263 (D.C.Cir. 1999) (explaining that, to show causation, the plaintiff must show that the employer "had knowledge of her protected activity" (brackets and internal quotation mark omitted) (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985))). But this determination does not conclude the causation inquiry. After all, the causation element of a Title VII retaliation claim requires the employee to show "that the employer took a materially adverse action against the employee `because' the employee opposed a protected practice." McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C.Cir.2012). Simply showing the employer's knowledge of the employee's protected practice and the employer's later materially adverse action does not fully meet that standard; the employee must also show the materially adverse action "would not have occurred in the absence of" the employee's protected practice. Univ. Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). The Court turns now to the evidence Ms. Wang offers to show Mr. Greaves's retaliatory animus.
The Court begins with Ms. Wang's "direct evidence" of retaliation. See Pl.'s Opp'n 36. Direct evidence of retaliation may be an employer policy that is retaliatory on its face, or an employer statement that explicitly mentions an employee's protected activity. See, e.g., Lane v. Vasquez, 961 F.Supp.2d 55, 75 (D.D.C. 2013) (holding that the employer's comment that the employee "filed an EEO complaint and would never be hired is direct evidence of retaliation"); Hampton v. Vilsack, 760 F.Supp.2d 38, 53 (D.D.C. 2011) (finding a sworn affidavit to be direct evidence of retaliation when it stated that a supervisor informed another employee that the plaintiff "was not being sent overseas in November 2004 because of his EEO complaint"). See generally, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (explaining that a policy that was discriminatory on its face was direct evidence of discrimination); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576-77
Here, Ms. Wang asserts that Mr. Greaves's "retaliatory animus beg[an] when [Ms.] Wang sa[id] she [might] consult an attorney and continue[d] through to his deposition testimony," and that "[Mr.] Greaves's documented anger at [Ms.] Wang compels denial of summary judgment on [Ms.] Wang's Title VII retaliation count." Pl.'s Opp'n 36. The record does reflect Mr. Greaves consistent irritation with Ms. Wang's actions, particularly those actions that he felt might lead to legal activity. Immediately after reading Ms. Wang's September 5 email about their meeting earlier that day, Mr. Greaves believed that Ms. Wang wanted to "create a case" against him, and he said so in two emails he sent on that same day. See Def.'s Statement Ex. 12/13, at 487-89, ECF No. 19-14. And on that very day, he recommended Ms. Wang's termination. Id. at 487-88. Furthermore, on multiple occasions during his deposition, Mr. Greaves expressed his belief that Ms. Wang was telling "a complete lie ... to set up her little case." See Greaves Dep. 138:1-14, 147:16-150:14, Pl.'s Statement Ex. 3, ECF No. 20-5. See generally 1 Lex K. Larson & Arthur Larson, Larson on Employment Discrimination § 8.07 (2d ed. 2016) ("Discriminatory [or retaliatory] comments may establish a prima facie case even if occurring after the adverse employment action." (citing Ridgell v. Colvin, No. 10-3280, 2013 WL 952253 (D.Md. Mar. 11, 2013)). Finally, according to Ms. Wang, when Mr. Greaves became agitated after Ms. Wang accused him of abusing his authority, Mr. Greaves replied that "[a]buse would be a word you would tell a lawyer" and then told Ms. Wang that she was fired. Wang Dep. 212:10-214:20, Pl.'s Statement Ex. 1, ECF No. 20-3.
The record thus reveals several instances in which Mr. Greaves showed awareness of and irritation toward the possibility that Ms. Wang might pursue legal action against him. However, Mr. Greaves's statements never specifically addressed the possibility that Ms. Wang might lodge discrimination allegations against him. For that reason, Mr. Greaves's statements are not the kind of direct evidence that ensures Ms. Wang a jury trial on her retaliation claim. Cf. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C.Cir. 2013) (per curiam) (holding that a statement that specifically invoked the plaintiff's protected class was direct evidence that entitled the plaintiff to a jury trial on his discrimination claims); Lane v. Vasquez, 961 F.Supp.2d 55, 75 (D.D.C.2013) (holding that a statement that specifically invoked the plaintiff's EEO complaint was direct evidence that entitled the plaintiff to a jury trial on his retaliation claim); Hampton v. Vilsack, 760 F.Supp.2d 38, 53 (D.D.C.2011) (same). The Court will, however, consider Mr. Greaves's statements as indirect evidence of Mr. Greaves's retaliatory animus.
Until now, the Court has discussed the causation element of Ms. Wang's Title VII retaliation claim under the D.C. Circuit's directive that a plaintiff's supervisor could not have retaliated against the plaintiff unless he "had knowledge of [her] protected
In the Supreme Court's words, Title VII's "intentional discrimination provision prohibits certain motives, regardless of the state of the actor's knowledge." Abercrombie, 135 S.Ct. at 2033. "Motive and knowledge are separate concepts." Id. And the Supreme Court has recently reached a similar holding in the First Amendment retaliation context: "When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983 — even if ... the employer makes a factual mistake about the employee's behavior." Heffernan v. City of Paterson, U.S. ___, 136 S.Ct. 1412, 1418, 194 L.Ed.2d 508 (2016). See generally Smith v. City of Greensboro, No. 15-11643, 647 Fed. Appx. 976, 2016 WL 1425953, at *6 (11th Cir. Apr. 12, 2016) (applying the same causation principles for the plaintiff's Title VII and First Amendment retaliation claims); Martin v. District of Columbia, 78 F.Supp.3d 279, 327 n. 74 (D.D.C.2015) (same).
To the Court's knowledge, no court has squarely held that a plaintiff may prove Title VII retaliation based solely on a supervisor's retaliatory motive, without having to establish the supervisor's knowledge of the plaintiff's protected activity. But such a holding is the logical extension of the Supreme Court's statutory analysis in Abercrombie, which observed that 42 U.S.C. § 2000e-2(a)(1) — the provision governing Title VII discrimination — "does not impose a knowledge requirement," even though "some antidiscrimination statutes do." Abercrombie, 135 S.Ct. at 2032-33; see also 42 U.S.C. § 2000e-2(a) (stating that "[i]t shall be an unlawful employment practice for an employer... to discriminate against any individual... because of such individual's race, color, religion, sex, or national origin," but not because of the employer's knowledge of the individual's race, color, religion, sex, or national origin). Title VII's antiretaliation provision, just like Title VII's antidiscrimination provision, imposes no knowledge requirement. See 42 U.S.C. § 2000e-3(a) (stating that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice," not because the employer knows that the employee has opposed any practice made an unlawful employment practice). To prove that a supervisor unlawfully retaliated against the plaintiff, the plaintiff arguably need only to prove that the supervisor harbored unlawful retaliatory intent — not that he harbored unlawful retaliatory
Here, because the Court finds that circumstantial evidence exists from which a reasonable jury could infer Mr. Greaves's knowledge of one of Ms. Wang's protected activities, the Court need not analyze Ms. Wang's claim under this alternative method of proving causation. The Court observes, however, that record evidence exists that suggests that, even before Mr. Greaves could have had knowledge of Ms. Wang's protected activities (and even if Mr. Greaves did not have knowledge of those activities), Mr. Greaves harbored retaliatory animus toward Ms. Wang.
Having momentarily digressed, the Court returns to — and recaps — its analysis of Ms. Wang's Title VII retaliation claim. As discussed above, Ms. Wang engaged in certain protected Title VII activities during her last five weeks at WMATA, and WMATA terminated her employment
The Court concludes its consideration of WMATA's summary judgment motion by addressing Ms. Wang's retaliation claim under the American Recovery and Reinvestment Act of 2009 (ARRA). See Am. Compl. ¶¶ 221-30. The ARRA, "popularly known as the Stimulus Act, was passed as emergency legislation to rescue the American economy from the recent deep recession." Dorsey v. Jacobson Holman, PLLC, 707 F.Supp.2d 21, 23 (D.D.C. 2010). The Act appropriated federal funds to "promote economic recovery," among other things. ARRA, Pub. L. No. 111-5, § 3(a)(1), 123 Stat. 115, 116 (2009). To promote accountability and transparency in the use of those funds, the ARRA includes a whistleblower provision that protects employees who disclose
Id. ¶ 1553(a), 123 Stat. at 297. The ARRA's whistleblower provision declares that those employees "may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing" that information, even if they make their disclosures "in the ordinary course of [their] duties." Id.
"To recover under ARRA's whistleblower provision, a plaintiff must prove by a preponderance of the evidence ... (1) [that she] made a protected disclosure, (2) [that she] suffered a reprisal, and (3) [that] the protected disclosure was a contributing factor in the reprisal." Hadley v. Duke Energy Progress, Inc., No. 14-0229, 2016 WL 1071098, at *4 (E.D.N.C. Mar. 17, 2016) (citing ARRA § 1553(a), (c)(1)(A), 123 Stat. at 297, 299). To prove that a protected disclosure was a contributing factor, the plaintiff may use "circumstantial evidence, including ... (I) evidence that the official undertaking the reprisal knew of the disclosure; or (II) evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the
Here, WMATA argues that Ms. Wang cannot prevail on her ARRA retaliation claim because
See Def.'s Mem. 30. Because the Court finds that WMATA's second argument suffices to award WMATA summary judgment on Ms. Wang's ARRA retaliation claim, the Court addresses that argument without addressing the other two.
When a plaintiff's disclosure "concerns mismanagement, waste, or an abuse of ARRA funds," ARRA protects the plaintiff from discharge, demotion, and other discrimination only if the misuse of funds was (1) "severe enough that the employee subjectively believes that it is `gross'" and (2) "severe enough that a `reasonabl[e]' employee in the plaintiff's position would consider it `gross.'" Hadley, 2016 WL 1071098, at *5 (quoting ARRA § 1553(a), 123 Stat. at 297) (citing Livingston v. Wyeth, Inc., 520 F.3d 344, 352 (4th Cir. 2008)); White v. Dep't of the Air Force, 391 F.3d 1377, 1381-82 (Fed.Cir.2005); and Gerhard v. D Constr., Inc., No. 11-0631, 2012 WL 893673, at *2-3 (N.D.Ill. Mar. 14, 2012). When applying this standard, courts adopt principles used when applying "substantially identical language in the Whistleblower Protection Act (`WPA'), 5 U.S.C. § 2302(b)(8)." See id. Accordingly, because whistleblower protection is not meant to allow employees to litigate policy disputes with their employers, gross mismanagement under the ARRA "occurs when the `conclusion that the employer erred is not debatable among reasonable people.'" Id. (brackets omitted) (quoting White, 391 F.3d at 1382).
WMATA argues that Ms. Wang fails to allege "that the alleged integration issues [in relation to WMATA's IFO Project] were gross mismanagement" and not "the normal occurrence of a system upgrade." Def.'s Mem. 32. Along these lines, WMATA elaborates that Ms. Wang provides "no point of reference for this Court to ascertain whether what she is describing as issues are technical glitches in a complicated system or the product of reckless management." Id.
The Court agrees. Ms. Wang spends just two pages of her opposition brief discussing the legal merits of her ARRA retaliation claim, and nowhere in those two pages does she establish that she disclosed WMATA actions that rise to the level of "gross" mismanagement, waste, or abuse. See Pl.'s Opp'n 37-38. And, from the Court's review of the record, whether WMATA's actions in relation to the IFO Project rose to the level of "gross" mismanagement appears to be a question that reasonable people could debate. Compare Am. Compl. 8-13 ("[Ms.] Wang reported gross mismanagement of the IFO project...."), with Audette Dep. 147:19-149:9, Pl.'s Statement Ex. 2, ECF No. 20-4 (contending that WMATA anticipated issues
On the record presented, the Court concludes that a reasonable jury could find that WMATA terminated Ms. Wang's employment for discriminatory or retaliatory reasons, in violation of Title VII of the Civil Rights Act of 1964. But for Ms. Wang's retaliation claim under the whistleblower provision of the American Recovery and Reinvestment Act of 2009, the Court concludes that a reasonable jury could not find in Ms. Wang's favor. For the foregoing reasons, Defendant's motion for summary judgment (ECF No. 19) is
Even though Ms. Wang did not strictly comply with Rule 15's requirements, WMATA has implicitly consented to Ms. Wang's amended complaint by failing to object to it, answering it, and addressing its claims in its motion for summary judgment. See Answer Am. Compl. 1-19; Def.'s Mem. P. & A. Supp. Mot. Summ. J. 6-38, ECF No. 19 [hereinafter Def.'s Mem.]. The Court therefore considers Ms. Wang's amended complaint to be the complaint currently governing this case.
The Court's discussion here, however, finds that a reasonable jury could consider Ms. Wang's corrective action plan, and the circumstances surrounding it, to be evidence of "demonstrably discriminatory motive." In doing so, the Court follows D.C. Circuit precedent and examines whether a reasonable jury could find that the corrective action plan was so "inexplicably unfair" that it was a pretext for discrimination. Mastro, 447 F.3d at 855-57. If the jury can infer pretext in this manner, the plan becomes evidence of the employer's "demonstrably discriminatory motive." Cf. Milton v. Weinberger, 696 F.2d 94, 100 (D.C.Cir.1982) (concluding that, when the employee failed to prove that the employer's legitimate, non-discriminatory reason for its employment decision was pretextual, the court should not "second guess" that decision "absent demonstrably discriminatory motive"). In light of the evidence showing that Ms. Wang's corrective action plan may have been a ruse by which Mr. Greaves could terminate her, "second-guessing" WMATA's actions in this case does not contravene Title VII principles in this Circuit.
The Court's analysis of Ms. Wang's corrective action plan recognizes that whether Ms. Wang "may have met expectations in the past is irrelevant" to whether Mr. Greaves "believed that [Ms. Wang] was performing adequately when [Mr. Greaves] placed [Ms. Wang] on the [corrective action plan]." Khan v. Holder, 37 F.Supp.3d 213, 227 (D.D.C. 2014). The Court accordingly does not consider Ms. Wang's argument that, because of Ms. Wang's previous satisfactory performance evaluations, Mr. Greaves "had no substantive basis for putting her on a [corrective action plan]." See Pl.'s Opp'n 31-32 (making that argument).
The Court also does not consider Ms. Wang's argument that WMATA failed "to adhere to its own policies regarding the involvement of [WMATA's human resources department] in drafting, reviewing, and [e]nsuring the appropriateness and fairness of a [corrective action plan]." Id. at 32. Ms. Wang has failed to develop this argument, and has therefore waived it, because she does not allege any particular procedures that the human resources department should have followed. See id. at 22 (alleging that Ms. Press, a WMATA employee relations officer, did not suggest changes to the corrective action plan, did not ask Mr. Greaves how he would monitor Ms. Wang's progress, did not monitor Ms. Wang's progress, and was just an observer of the process — but without mentioning any human resources policies WMATA violated); id. at 33 (recounting Ms. Wang's interactions with WMATA's Office of Civil Rights and with Ms. Press, again without mentioning any human resources policies); Pl.'s Statement 35-40 (same); see also id. at 31, ¶ 4 (stating that Special Agent Mark Coulter, a WMATA OIG employee, "explained that WMATA had specific procedures and protocols for terminations which Greaves did not appear to have followed," but without mentioning what those procedures were). See generally Johnson v. Panetta, 953 F.Supp.2d 244, 250 (D.D.C.2013) ("[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are deemed waived.").
