COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Larry Haynes brings this action against his former employer, the District of Columbia Water and Sewer Authority ("DC Water"), under the Americans with Disabilities Act ("ADA"), see 42 U.S.C. 12101 et seq. (Count I), Title VII of the Civil Rights Act of 1964 ("Title VII"), see 42 U.S.C. § 2000e et seq. (Count II), 42 U.S.C. § 1981 ("Section 1981") (Count III), the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. § 623 et seq. (Count IV), and the District of Columbia Human Rights Act ("DCHRA"), see D.C. Code § 2-1401 et seq. (Count V). He also brings a breach of contract claim (Count VI). Plaintiff demands declaratory and injunctive relief, compensatory and punitive damages, litigation expenses and reasonable attorney's fees.
This matter is before the Court on Defendant District of Columbia Water and Sewer Authority's Motion for Summary Judgment, ECF No. 18. For the reasons discussed below, the Court concludes that plaintiff's claims under the ADA and the DCHRA are time-barred, that plaintiff failed to exhaust his age and race discrimination claims under the ADEA and Title VII, that DC Water did not violate Section 1981 by purposely discriminating against plaintiff on the basis of his race, and that plaintiff fails to state a breach of contract claim. Accordingly, the Court will grant DC Water's motion in its entirety.
Plaintiff is a 55-year old African American man, Pl.'s First Am. Compl., ECF No. 17 ("Am. Compl.") ¶ 4, who is dyslexic, see id. ¶ 9. DC Water "is an independent authority of the District of Columbia that provides retail water and wastewater sewer service to the District of Columbia." Id. ¶ 5. Its predecessor entity, the District of Columbia Department of Public Works, Water and Sewer Administration, hired plaintiff in 1988 as an Electrical Equipment Repairer 11/CDL. Id. ¶ 6.
An Electrical Equipment Repairer 11/CDL "perform[ed] a wide range of electrical duties independently under the supervision of an electrical foreman." Def. District of Columbia Water and Sewer Auth.'s Mem. of P. & A. in Support of its Mot. for Summ. J., ECF No. 18-1 ("Def.'s Mem."), Decl. of Charles Sweeney in Support of Def. District of Columbia Water and Sewer Auth.'s Mot. for Summ. J., ECF No. 18-3 ("Sweeney Decl.") ¶ 8.
In or about 2011, DC Water planned to reorganize and consolidate its "Department of Water, Department of Sewer, and the Water and Sewer Pump Maintenance Branch into one department called the Department of Distribution and Conveyance Systems." Sweeney Decl. ¶ 4. Management identified positions to abolish and identified "new positions ... to create to replace the abolished positions and/or meet new organizational requirements." Id. ¶ 6. One of the positions slated for abolishment was the Electrical Equipment Repairer 11/CDL position. Id. ¶ 7. DC Water announced the reorganization in 2014. Id.
It came to light during the reorganization process that District of Columbia licensure requirements for electricians required direct supervision over "employees holding only an apprentice electrician's license [by] a person holding a master electrician's license[.]" Id. ¶ 9. DC Water sought guidance from the District of Columbia Department of Consumer and Regulatory Affairs, see id., which advised:
Id., Ex. 2 (Letter to Stephanie Black, Manager, Learning and Development, DC Water, from Pamela Hall, Program Support Specialist, D.C. Board of Industrial Trades, Occupational and Professional Licensing Division, Department of Consumer and Regulatory Affairs, dated March 18, 2015) at 2-3 (emphasis in original).
American Federation of Government Employees Local 2553 ("Union") represented employees in the Electrical Equipment Repairer 11/CDL positions. See id. ¶ 13.
The Union and DC Water disagreed about the length of time within which an Electrical Equipment Repairer 11/CDL was to obtain a journeyman electrician's license. The Union proposed that an "employee[ ] holding an apprentice electrician's license be permitted a total of four (4) years to obtain [a] journeyman electrician's license." Id. ¶ 19. DC Water rejected this proposed timeframe because the journeyman electrician's license requirement was a legal requirement. Id. Ultimately DC Water and the Union entered into a Memorandum of Agreement ("MOA"), and with respect to the Electrical Equipment Repairer 11 positions, the parties agreed:
Id., Ex. 8 (Memorandum of Agreement Regarding the Department of Distribution and Conveyance Systems dated September 2, 2014) ¶ 4.
The MOA also included agreements with respect to other DC Water employees affected by the reorganization. For example:
Id., Ex. 8 ¶ 3.
Notwithstanding the MOA, in October 2014, "the Union initiated an unfair labor practice grievance under the procedures laid out in Article 58 of the [CBA]." Id. ¶ 23; see generally id., Ex. 10 (Working Conditions Agreement Between DC Water and American Federation of Government Employees Local 2553) at 81-87 (Art. 58, General Grievance and Arbitration Procedures). The grievance did not delay implementation of the reorganization in November 2014. Id. ¶ 24.
"In the fall of 2014, [plaintiff] was informed that his job title was being changed to Industrial Journeyman Electrician and that [an] Industrial Journeymen Electrician[was] required to obtain a [j]ourneyman [e]lectrican['s l]icense." Am. Compl. ¶ 7. On October 3, 2014, DC Water proffered a copy of the job description for the Industrial Journeyman Electrician position, Sweeney Decl. ¶ 25, and plaintiff refused to sign a form acknowledging its receipt, see id., Ex. 9 (Job Description Transmittal). Plaintiff had only six months to obtain a journeyman electrician's license, even though "[t]he license generally requires years of coursework and the signature of a master electrician who supervised the candidate." Am. Compl. ¶ 8.
Pursuant to the MOA, DC Water provided training for employees converting to the new Industrial Journeyman Electrician positions. Sweeney Decl. ¶¶ 26-27. Plaintiff began the course in September 2014. Id. ¶ 26. According to DC Water, plaintiff took a 15-week course ending in December, 2014. Id. ¶ 28. According to plaintiff, DC Water provided a six-week course at the end of which he "received a certificate showing that he completed sixty hours of training for the Journeyman Electrician Examination." Am. Compl. ¶ 8. However, he "did not believe the course sufficiently prepared him for the examination," in part because "the course instructor admitted that [the] course was designed as a refresher for people who had already passed the test previously, and it was not meant for first-time test takers." Id.
"In the fall of 2014, [plaintiff] told various members of human resources ... that
Meanwhile, the Union's grievance proceeded. "The parties could not agree on a statement of issues to be decided by the Arbitrator." Def.'s Mem., Ex. 14 (Arbitration Decision dated July 12, 2015) at 2. On "[c]onsider[ation of] the evidence presented and the arguments in the briefs," id., Ex. 14 at 20, the Arbitrator fashioned his own statement of four issues to be decided, two of which are relevant here:
Id., Ex. 14 at 21.
There were seven incumbent Electrical Equipment Repairer 11/CDL employees eligible for the newly-created Industrial Journey Electrician positions: six are African-American and one is Caucasian. Sweeney Decl. ¶ 29. Two of the African-American employees already had journeyman
On April 1, 2015, Charles Sweeney, Director of Distribution and Conveyance Systems, Sweeney Decl. ¶ 3, sent plaintiff a letter "informing him of his failure to meet the licensure requirement to convert to the Industrial Journeyman Electrician position" by the March 31, 2015 deadline, id. ¶ 30; see id., Ex. 12 (Letter to plaintiff from Charles Sweeney dated April 1, 2015). DC Water declined to terminate plaintiff's employment at that time. Id. ¶ 31. Instead, "DC Water removed him from his position as an electrician on April 1, 2015," Am. Compl. ¶ 12, and allowed him (and the two other African-American employees who failed to meet the March 31, 2015 deadline) an additional 60 days, to May 31, 2015, to obtain a journeyman electrician's license, Sweeney Decl. ¶¶ 31-32; see id., Ex. 12 (Acknowledgment of Receipt of Sixty (60) day Notice to Obtain a Journeyman Electrician['s] License). Plaintiff and two other African-Americans "were the only Electrical Equipment Repairer 11 employees provided additional time to obtain the required license." Id. ¶ 32. Still, plaintiff failed to obtain the license, and DC Water terminated his employment effective May 31, 2015. Id. ¶ 34; see id., Ex. 13 (Personnel Action Report). He "received no benefits as part of the reduction-in-force (RIF) or severance package from the termination," and he was not eligible for rehire, see Sweeney Decl., Ex. 13, as were other DC Water employees, Am. Compl. ¶ 12.
"On May 26, 2015, [plaintiff] went to the Washington Field Office of the Equal Employment Opportunity Commission [EEOC]," where he filed a charge of discrimination, completed an intake report, and signed an agreement to mediate his discrimination charges. Id. ¶ 13. To indicate the basis of discrimination, plaintiff only checked the box marked "DISABILITY." See Pl.'s Opp'n, Ex. A (Charge of Discrimination dated May 26, 2015). He stated that the alleged discrimination took place between April 1, 2015 and May 26, 2015, and involved "CONTINUING ACTION." Id., Ex. A. The narrative section of the charge read:
Id., Ex. A.
The EEOC "issued a Notice of Right to Sue on May 27, 2015." Am. Compl. ¶ 13. It
DC Water moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. "The 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." Fed. R. Civ. P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents ... affidavits or declarations, stipulations ..., admissions, [or] interrogatory answers[, or by] showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e).
When considering a motion for summary judgment, the Court cannot make credibility determinations or weigh the evidence; the evidence must be analyzed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted). The mere existence of a factual dispute does not bar summary judgment, however. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. The adverse party must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and he cannot rely on conclusory assertions without any factual basis in the record to create a genuine dispute, see Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
DC Water moves for summary judgment on Count I of the Amended Complaint on the ground that plaintiff's ADA claim is time-barred. Def.'s Mem. at 7. The Notice of Right to Sue includes a warning that any lawsuit was to be filed within 90 days of the claimant's receipt of the notice. See Pl.'s Opp'n, Ex. H. DC Water contends that plaintiff filed his lawsuit "nearly seventeen (17) months after he received his
The Amended Complaint does not specify the date on which plaintiff received the Notice of Right to Sue. However, he does not deny DC Water's assertions that he received the notice on May 27, 2015, that he had until August 25, 2015 to file a lawsuit under the ADA, and that he filed his original complaint on September 29, 2016. See Def.'s Statement of Undisputed Facts in Support of its Mot. for Summ. J., ECF No. 18-2 ("Def.'s SOF") ¶¶ 28, 30-31; Statement of Disputed Material Facts in Support of Pl.'s Opp'n to Def.'s Mot. for Summ. J., ECF No. 21-1 ("Pl.'s SOF") at 3 (page number designated by ECF) (omitting mention of Def.'s SOF ¶¶ 24-32). He argues instead that the limitations period should be tolled. See Pl.'s Opp'n at 12-13. Plaintiff has dyslexia, a learning disability, which he claims rendered him non compos mentis and thus incapable of handling his affairs between May 30, 2015 and September 29, 2016. Id. at 12; see Pl.'s Opp'n to Def.'s Mot. to Dismiss, or in the Alternative, Mot. for Summ. J., or in the Alternative, Mot. for a More Definite Statement, ECF No. 12, at 6-7. For this reason, plaintiff asserts, his lawsuit should be considered timely filed.
Under District of Columbia law, "when a person entitled to maintain an action is, at the time the right of action accrues ... non compos mentis ... he or his proper representative may bring action within the time limited after the disability is removed." D.C. Code § 12-302(a). Although the statute itself "does not itself define non compos mentis," Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998), "[t]he phrase ... generally refers to someone incapable of handling his own affairs or unable to function [in] society," Hendel v. World Plan Exec. Council, 705 A.2d 656, 665 (D.C. 1997) (quoting Speiser v. U.S. Dep't of Health & Human Servs., 670 F.Supp. 380, 384 (D.D.C. 1986), aff'd, 818 F.2d 95 (D.C. Cir. 1987)).
"The disability of a person claiming to be non compos mentis must be `of such a nature as to show [he] is unable to manage [his] business affairs or estate, or to comprehend [his] legal rights or liabilities.'" Smith-Haynie, 155 F.3d at 580 (quoting Decker v. Fink, 47 Md.App. 202, 422 A.2d 389, 392 (1980)); see also Oparaugo v. Watts, 884 A.2d 63, 73 (D.C. 2005). Impaired judgment by itself does not excuse a plaintiff's untimely filing, see Decker, 422 A.2d at 393, and "[t]he mere existence of mental problems or life difficulties will not suffice," Davis v. Vilsack, 880 F.Supp.2d 156, 162 (D.D.C. 2012). Indicia of non compos mentis status might include a showing that plaintiff has been "adjudged incompetent, signed a power of attorney, had a guardian or caretaker appointed, or otherwise took measures to let someone else handle [his] affairs[.]" Speiser, 670 F.Supp. at 385.
Plaintiff relied on the reports of Emmanuel A. Olarinde, Ph.D., a licensed clinical psychologist, one of which was prepared prior to his termination. Plaintiff had "referred himself for a psychoeducational evaluation ... designed to assess [his] cognitive ability [and] academic achievement in reading and mathematics." Pl.'s Opp'n, Ex. E-1 (Clinical Neuropsychological Evaluation dated May 13, 2015) at 1.
Id., Ex. E-1 at 1-2.
Subsequent testing with respect to plaintiff's intellectual ability revealed that plaintiff's "reasoning abilities on verbal tasks are generally in the low average range ... while his nonverbal reasoning abilities are significantly higher and in the average range." Id., Ex. E-2 (Clinical Neuropsychological Evaluation dated September 13, 2015) at 4. Further, Dr. Olarinde found that plaintiff's "ability to sustain attention, concentrate, and exert mental control is in the low average range," and his "ability in processing simple or routine visual material without making errors is in the average range." Id., Ex. E-2 at 4.
Dr. Olarinde concluded that plaintiff would "have serious difficulties in learning and memory in any training that involves reading and writing." Id., Ex. E-1 at 4. With respect to plaintiff's reading ability, Dr. Olarinde found "[a] relative weakness in decoding words as compared to reading words in isolation," which "may indicate that [plaintiff] has difficulty applying phonetic rules for decoding words but may not have learned vocabulary words to automaticity." Id., Ex. E-1 at 2-3. He concluded that plaintiff "has a disorder of the basic psychological process involved in understanding or in using written language that manifest[s] itself in an imperfect ability to read[,] write and spell, or to do mathematical calculations, including conditions such as visual and auditory perceptual disabilities and dyslexia." Id., Ex. E-1 at 4 (emphasis removed). Only after this second round of testing did Dr. Olarinde appear to diagnose a "[r]eading [d]isorder with impairment in word reading and reading comprehension (dyslexia)," recommending that plaintiff's employer "accommodate for his reading disabilities" by using "a device where instructions or test items or questions are read to him." Id., Ex. E-2 at 6.
In addition, plaintiff pointed to errors he made as evidence of his inability to comprehend his legal rights. When he "attempted to complete the EEOC Charge of Discrimination form ... he selected the box that stated he does not have a disability and selected `genetic information' as the type of discrimination he faced on the EEO questionnaire." Pl.'s Opp'n at 12; see id. Exs. A, F. He also "stated that he faced a `layoff' on April 1, 2015, because he did not understand DC Water's letter [to mean] that he needed to complete his license within sixty days." Id.; see id., Ex.
Missing from plaintiff's opposition are any references to materials in the record of this case tending to show that plaintiff could not manage his own affairs or otherwise function in society because of a reading disorder. Nothing is known about plaintiff's activities and mental or physical condition during this supposed period of incapacity. Plaintiff does not claim that his judgment was impaired or that his physical or mental health was compromised. He neither identifies an event that suddenly triggered his incapacity on May 30, 2015, nor explains how his incapacity was removed on September 29, 2016, the day he filed his original pro se complaint.
Rather, plaintiff's actions immediately prior to the purported onset of his non compus mentis status on May 30, 2015 reflect an understanding that his employment with DC Water was at risk unless he could obtain a journeyman electrician's license, that his dyslexia is a basis for requesting a reasonable accommodation to prepare for the licensure examination, that DC Water may have discriminated against him because of his disability, and that the EEOC was an appropriate place to seek relief. Dr. Olarinde's observations, particularly his assessment that plaintiff's "thought process was coherent, logical and goal directed," Pl.'s Opp'n, Ex. E-1 at 1, are not consistent with a person who purports to be incompetent or who was otherwise unable to manage his own affairs. Furthermore, the narrative set forth in plaintiff's EEOC charge was coherent and clearly set forth a claim of discrimination based on disability.
The Court concludes that plaintiff was not non compos mentis, that equitable tolling of the 90-day limitations period is not warranted, and that his ADA claim is untimely. Summary judgment will be granted in DC Water's favor on Count I.
An employer shall not "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [.]" 42 U.S.C. § 2000e-2(a)(1). Nor shall an employer "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of [his] age." 29 U.S.C. § 623(a)(1).
A plaintiff bringing employment discrimination claims under Title VII and the ADEA first must file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(b) (Title VII); 29 U.S.C. § 626(d) (ADEA). If the EEOC determines "that there is no reasonable cause to believe that the charge is true," the EEOC "shall dismiss the charge and promptly notify the person claiming to be aggrieved." Id. Only after a plaintiff files his charge of discrimination and obtains a notice of right to sue has he exhausted his administrative remedies on a race discrimination claim, see, e.g., Bell v. Redding, 539 F.Supp.2d 423, 424 (D.D.C. 2008), and only then can he file a lawsuit in federal district court, see, e.g., Jones v. District of Columbia, 273 F.Supp.2d 61, 64 (D.D.C. 2003). A
Generally, the scope of the subsequent lawsuit "is limited ... to claims that are `like or reasonably related to the allegations of the charge and growing out of such allegations.'" Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citing Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)); see Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (reinforcing Park holding insofar as claims in civil suit must arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination). "A plaintiff fails to exhaust [his] administrative remedies when the complaint [he] files in federal court includes a claim that was not raised in the administrative complaint." Mogenhan v. Shinseki, 630 F.Supp.2d 56, 60 (D.D.C. 2009).
DC Water seeks judgment in its favor on Counts II and IV of the Amended Complaint on the ground that plaintiff failed to exhaust his administrative remedies with respect to his race and age discrimination claims before filing this lawsuit. See Def.'s Mem. at 8-10. It notes that plaintiff's charge of discrimination "contains neither a checked box for `race' or `age,' nor does the factual narrative include any reference to discrimination based on age or race, or to [plaintiff's] age or race." Id. at 9. Rather, "the checked boxes and factual narrative only include allegations of disability discrimination and failure to accommodate," such that "no reasonable reading and/or interpretation of the Charge ... allows the inference that [plaintiff] intended to bring claims of race and age discrimination, or even contemplated the existence of any such claims at the time of filing the Charge." Id. at 9-10.
Plaintiff argues that his failure to check the boxes for race and age discrimination is not dispositive. Rather, he contends that his race and age discrimination claims "would have arisen from an investigation of his charge of discrimination" based on his disability because all of his claims "arose from the same factual circumstances." Pl.'s Opp'n at 10. And, he asserts, his Intake Questionnaire indicates his intention to list the ages of certain employees whom DC Water treated more favorably than it treated plaintiff, see id., Ex. F (Intake Questionnaire) at 2, from which the EEOC was to divine an age discrimination claim. Similarly, he asserts that an investigation as to "timing concerns regarding the Journeyman license would give rise to [his] claims of race and age discrimination." Id. at 11. The Court is not persuaded.
A Title VII claim "must arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination." Park, 71 F.3d at 907 (internal quotation marks and citation omitted). It simply is not reasonable to conclude that an investigation of the allegations in plaintiff's EEOC charge, particularly in light of its repeated mention of "disability" and "reasonable accommodation," would uncover a claim of discrimination based on race or age. See Hicklin v.
All of plaintiff's discrimination claims may have arisen from the same factual circumstances: abolishing the Electrical Equipment Repairer 11/CDL positions, creating the Industrial Journeyman Electrician positions, and requiring a journeyman electrician's license by date certain. It is apparent, however, that plaintiff's "timing concerns" pertain to the time period within which he was expected to train for, take and pass the journeyman electrician's license examination, and the difficulty his reading disability may have posed. An EEOC investigation likely would have focused on the nature of plaintiff's purported disability and the reasonable accommodations he may have requested or to which he may have been entitled. It is not at all clear that inquiries of this nature would have uncovered a basis for race and age discrimination claims plaintiff himself had not raised.
The Court concludes that plaintiff failed to exhaust his administrative remedies with respect to his Title VII and ADEA claims, and grants summary judgment for DC Water on Counts II and IV.
"Section 1981 prohibits private employers from intentionally discriminating on the basis of race with respect to the `benefits, privileges, terms, and conditions' of employment." Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting 42 U.S.C. § 1981) (additional citation omitted). "Under extant precedent[,] purposeful discrimination requires more than `intent as volition or intent as awareness of consequences' .... It instead involves a decisionmaker's undertaking a course of action `because of,' not merely `in spite of,' [the action's] adverse effects upon an identifiable group." Ashcroft v. Iqbal, 556 U.S. 662, 676-77, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)) (brackets in original). In other words, "only ... purposeful discrimination" violates Section 1981. Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982).
Plaintiff alleges that DC Water discriminated against him on the basis of his race in violation of Section 1981 when it "changed his official position to require an unnecessary license, gave him six months to obtain the [j]ourneyman [e]lectrician['s
"For purposes of summary judgment, the operative question under Section 1981 ... is whether the employee produced sufficient evidence for a reasonable jury to find that ... the employer intentionally discriminated against [him] on the basis of race." Ayissi-Etoh, 712 F.3d at 576 (quoting Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (internal quotation marks removed). Where a plaintiff presents no direct evidence of discrimination, the Court employs the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973):
DeJesus v. WP Co. LLC, 841 F.3d 527, 532-33 (D.C. Cir. 2016).
However, it is well-established that "it is no longer relevant" if plaintiff established his prima facie case once defendant has proffered a non-discriminatory explanation for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Here, because DC Water has proffered an allegedly non-discriminatory reason for its decision to terminate plaintiff, setting forth facts to establish a prima facie case would be "an unnecessary sideshow." Brady, 520 F.3d at 494. Thus, the Court need only determine whether plaintiff has "produced sufficient evidence for a reasonable jury to find the [defendant's] non-discriminatory reason was not the actual reason that [DC Water] intentionally discriminated against [plaintiff] on the basis of" his protected status. Id.
DC Water proffered that compliance with District of Columbia law prompted its actions. See Sweeney Decl. ¶¶ 8-11; see id., Ex. 2; Def.'s SOF ¶¶ 8-9. It "could not ignore that some of the Electrical Equipment Repairer 11s, including [plaintiff] might not be qualified electricians in the District of Columbia because they had apprentice electrician's licenses, worked independently for extended periods of time, and [did] not [work] under the direct supervision of a master electrician." Def.'s Mem. at 12. Because there were not enough master electricians in DC Water's employ to supervise directly each Electrical Equipment Repairer 11 with only an apprentice electrician's license, and because DC Water lacked the resources to hire a sufficient number of master electricians, it opted to "chang[ ] the Electrical Equipment Repairer 11 position into the Industrial Journeyman Electrician position."
At this stage, plaintiff bears the burden to show that DC Water's proffered reason was not the actual reason for its employment decisions, and, instead, DC Water discriminated against plaintiff on the basis of his race. See Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004). "One way to discredit an employer's justification is to show that similarly situated employees of a different race received more favorable treatment." Royall v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 548 F.3d 137, 145 (D.C. Cir. 2008) (citing Brady, 520 F.3d at 495). "In order to successfully use similarly situated individuals to establish pretext and thus raise an inference of discrimination, a plaintiff must establish that all of the relevant aspects of [his] employment situation were nearly identical to those of the comparators." Steele v. Carter, 192 F.Supp.3d 151, 169 (D.D.C. 2016) (internal quotation marks and citation omitted), aff'd in part, appeal denied in part sub nom. Steele v. Mattis, No. 16-5236, 2017 WL 2332608 (D.C. Cir. Feb. 21, 2017).
The Amended Complaint alleges that Caucasian electricians received more favorable treatment than plaintiff, an African American, because they were allowed 18 months to two years to obtain their journeyman electrician's licenses. Am. Compl. ¶ 25. Nevertheless, he faults DC Water for proceeding as if "the only employees similarly-situated to [plaintiff] are Electrical Equipment Repairer 11 employees." Pl.'s Opp'n at 2; see id. at 7. Plaintiff contends that the "job title is not dispositive to the identification of similarly-situated employees." Id. at 2. According to plaintiff, there are other similarly-situated employees who "received more time to obtain their licenses and were ... allowed to return to school," id., but these employees in "other units," id. at 3, cannot be identified without discovery, see id. at 2, 8.
Notwithstanding his argument for discovery, plaintiff refers to the MOA, see id. at 3, particularly its third paragraph regarding "Utility Systems Operator RW-08 [employees] hired into the position of a Utility Systems Operator I or II," who were allowed 18 months to obtain necessary certification for that position, id., Ex. B (MOA) ¶ 3. Plaintiff fails, however, to describe a Utility Systems Operator's job duties or set forth any basis from which the Court might determine whether and to what extent Utility Systems Operators' situation mirrored plaintiff's situation. Further, plaintiff offers no response to DC Water's assertions that "[t]hese employees are not electricians," Def.'s Reply Mem. of P. & A in Support of its Mot. for Summ. J., ECF No. 23 ("Def.'s Reply") at 20; see id., Decl. of Roger E. Brown, Jr., Ex. B (Job
The Court may allow a nonmovant time to take discovery if he "shows by affidavit or declaration that, for specified reasons, [he] cannot present facts essential to justify [his] position." Fed. R. Civ. P. 56(d). The declaration must "outline the particular facts he intends to discover and describe why those facts are necessary to the litigation," explain why he could not produce these facts in his opposition to the summary judgment motion, and demonstrate that the information he seeks is actually discoverable. Convertino v. U.S. Dep't of Justice, 684 F.3d 93, 99-100 (D.C. Cir. 2012) (citations omitted). The declaration of plaintiff's counsel is deficient. For example, counsel requests information about the reorganization generally, and about electricians specifically. See Decl. Pursuant to Rule 56(d) of the Fed. R. Civ. P. in Support of Pl.'s Opp'n to Def.'s Mot. for Summ. J., ECF No. 21-2 ¶¶ 1-5. Missing from his declaration is an outline of the particular facts he intends to discover and why these yet-to-be discovered facts are necessary. If Utility Systems Operators are the similarly-situated employees plaintiff deems comparators, these employees are not even mentioned in the list of matters about which plaintiff claims discovery is needed.
Utility Systems Operators are not electricians, and nothing in the record of this case demonstrates that these non-electricians are viable comparators. Furthermore, in the context of this case, plaintiff does not demonstrate that African American electricians were disadvantaged in any way. There is but one Caucasian electrician in plaintiff's situation — he was offered the same training opportunity plaintiff was offered, and he obtained a journeyman electrician's license by the March 31, 2015 deadline. Arguably, DC Water treated plaintiff and two fellow African American electricians more favorably by allowing them two additional months, to May 31, 2015, to obtain the required journeyman electrician's license.
Next, plaintiff argues that DC Water changed his position description because there had been a change in District of Columbia law. See Pl.'s Opp'n at 5-6. "The clause governing the limitation of those who hold an apprentice [electrician's] license ha[s] not changed since at least 1981." Id. at 6. Thus, for his entire tenure at DC Water, plaintiff "worked under the supervision of an Electrical Foreman, not a Master Electrician," such that DC Water had "been breaking D.C. statutory law" for decades. Id. According to plaintiff, these circumstances "suggest[ ] that [DC Water's] purported justification for the change of [plaintiff's] position is false and pretext for unlawful discrimination." Id.
DC Water does not argue that there had been a change in law regarding electrician's licenses. Rather, it explains, in order "[t]o come into compliance with applicable regulations already on the books, DC Water abolished the Electrical Equipment Repairer 11 position" and created the Industrial Journeyman Electrician in its place.
The Court finds that plaintiff has not produced sufficient evidence from which a reasonable jury could find that DC Water intentionally discriminated against him on the basis of race. Discovery is not warranted, and the Court will grant summary judgment in DC Water's favor on Count III.
In the District of Columbia, it is unlawful for an employer "[t]o or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee" on the basis of his race, age, or disability. D.C. Code § 2-1402.11(a). A plaintiff making a claim under the DCHRA must do so "within 1 year of the occurrence of the unlawful discriminatory practice, or the discovery thereof." D.C. Code § 2-1403.04(a). However, a timely filed charge with the EEOC, "which in turn cross-files with DCHRA, tolls the time for filing a private cause of action under D.C. law." Esteños v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 882 (D.C. 2008); see Ellis v. Georgetown Univ. Hosp., 631 F.Supp.2d 71, 78 (D.D.C. 2009) ("When a charge of discrimination is filed with the EEOC in the District of Columbia, a claim is automatically cross-filed with the D.C. Office of Human Rights ... pursuant to a `worksharing agreement' between the two agencies.").
DC Water argues that plaintiff failed to bring his race, age and disability discrimination claims under the DCHRA within the one-year limitations period. Def.'s Mem. at 15-17. Even if the cross-filing of his EEOC charge with the DCHRA tolled the limitations period, "the tolling period is only one-day long." Id. at 16. The Court concurs.
Plaintiff filed his charge of discrimination with the EEOC on May 26, 2015, and the EEOC issued its notice of right to sue one day later, on May 27, 2015. The limitations period would have been "tolled during the processing of the [charge] by the EEOC." Miller v. Gray, 52 F.Supp.3d 62, 68 (D.D.C. 2014) (citations omitted); see Alexander v. Washington Metro. Area Transit Auth., 826 F.3d 544, 551 (D.C. Cir. 2016) (noting that, "generally when a federal court borrows a limitations period from state law, that law's tolling provisions come along as part of the package"). Tolling "ended when the EEOC issued its right to sue notice[.]" Hammel v. Marsh USA Inc., 79 F.Supp.3d 234, 241 (D.D.C. 2015).
The filing of this lawsuit on September 29, 2016 occurred roughly four months after the DCHRA's one-year limitations period expired. The Court has considered and rejected plaintiff's assertion that he was non compos mentis during the relevant time period, and absent any alternative basis for tolling the statute of limitations, plaintiff's DCHRA claims are time-barred.
Plaintiff claims to have been employed by DC Water "though an express or implied employment contract" created by the "employee handbook[.]" Am. Compl. ¶ 36. He alleges that DC Water breached the contract "by changing [plaintiff's] job description[,] giving [him] less time than other electricians to obtain his [journeyman electrician's] license," and by denying him "the right to rehire and severance pay provided to other employees." Id. DC Water asserts, and plaintiff does not dispute, that "the only express contract that could be at issue is the CBA." Def.'s Reply at 21; see Def.'s Mem. at 23; see also Pl.'s Opp'n at 13.
DC Water notes that the CBA governs plaintiff's employment terms and conditions, and its "grievance process ... is the sole and exclusive remedy ... a covered employee may use to seek recovery for a purported breach of the CBA." Def.'s Mem. at 23. Assuming that plaintiff actually has a viable breach of contract claim, DC Water contends that it "is based on [an] argument that [it] breached the CBA when it changed his job description and job requirements during the reorganization." Id. According to DC Water, "[t]hese exact issues were arbitrated ... through the CBA's sole and exclusive grievance procedure, and the ruling in DC Water's favor has preclusive effect" on plaintiff's contract claim. Id.
"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as `res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Claim preclusion bars a subsequent lawsuit "if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction." Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006) (citations omitted); see New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ("Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.").
DC Water argues, and the Court concurs, that three elements are easily met. A binding arbitration decision is a final decision on the merits, see Century Int'l Arms, Ltd. v. Fed. State Unitary Enter. State Corp. "Rosvoorouzhenie," 172 F.Supp.2d 79, 95 (D.D.C. 2001) ("The decisions of binding arbitration proceedings are final decisions on the merits for purposes of res judicata.") (citations omitted), and a union member is in privity with his union, see Proctor v. District of Columbia, 74 F.Supp.3d 436, 452 (D.D.C. 2014), for claim preclusion purposes. Although the Arbitrator is not a court, there is no dispute that plaintiff is a Union member whose employment terms and conditions are governed by the CBA, particularly its provision that arbitration decisions are final and binding decisions on the merits. Cf. Camp v. Kollen, 567 F.Supp.2d 170, 173 (D.D.C. 2008) (rejecting argument that arbitrator's award "is not a final judgment deserving preclusive effect because the award is unconfirmed" where "the parties agreed to participate in binding arbitration, the [arbitrator] rendered a `final and binding' decision on the merits, and neither party has challenged that decision"). Remaining, then, is a determination whether the Union grievance and plaintiff's
Two claims need not be "literally identical claims for res judicata to apply." Capitol Hill Grp. v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F.Supp.2d 143, 149 (D.D.C. 2008), aff'd sub nom. Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485 (D.C. Cir. 2009). "Whether two cases implicate the same cause of action turns on whether they share the same `nucleus of facts.'" Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)).
Plaintiff's contract claim arose from DC Water's reorganization: DC Water changed plaintiff's job description, negotiated a deadline by which he was to obtain a journeyman electrician's license, and provided training for him and the other Electrical Equipment Repairer 11 employees to prepare for the journeyman electrician's license examination. The Union could have, and opted not to, grieve the change of job description. An Arbitrator addressed the deadline and training matters in the context of the Union grievance, and resolved both matters in DC Water's favor. Pursuant to the CBA, the Arbitrator's decision is binding on all parties, including plaintiff.
Plaintiff maintains that the Union's "case is very different from [his] allegations." Pl.'s Opp'n at 14. While the Union had heard rumors of a reorganization long before 2014 and had been consulted during the process, plaintiff "faced an abrupt change in his job description" after having worked for DC water for 27 years. Id. He asserts that the Union's grievance "is not sufficient to address [his] claim" that DC Water "effectively terminated [him] from his position when [it] changed the job description." Id. Plaintiff does not explain how or why the Union-initiated grievance would have arisen from a set of facts distinct from those supporting his contract claim, or why he might avoid the consequences of binding arbitration.
In vague terms, plaintiff alleges that "DC Water's employee handbook created a... contract" and breached the contract when it "denied [him] the right to rehire and severance pay provided to other employees." Am. Compl. ¶ 36. DC Water moves to dismiss this claim on the ground that the pleading fails to state a contract claim upon which relief can be granted. See generally Def.'s Mem. at 26-29.
A plaintiff adequately alleges a breach of contract claim by stating that there is a legitimate contract between the parties, that a party breached an obligation or duty arising from the contract, and that he suffered damages as a result of the breach. See, e.g., Logan v. LaSalle Bank Nat'l Ass'n, 80 A.3d 1014, 1024 (D.C. 2013) (citation omitted); Patriot, Inc. v. U.S. Dep't of Housing & Urban Dev., 963 F.Supp. 1, 6 (D.D.C. 1997) (rejecting implied contract claim where "plaintiffs have not demonstrated an offer, acceptance, or consideration — all essential elements of a contract which are required to succeed on an implied contract claim").
As DC Water notes, see Def.'s Mem. at 27-28, the Amended Complaint addresses none of these points. Plaintiff neither identifies a policy in an employee handbook which DC Water breached, see id., nor alleged the manner by which DC Water breached his purported right to rehire or for severance pay, id. at 28. Further, on summary judgment, plaintiff's opposition fails to produce sufficient evidence to raise a genuine issue of material fact as to the existence, terms and breach of an implied contract. See Def.'s Reply at 23-24. Therefore,
DC Water has demonstrated that there is no genuine issue of material fact in dispute and that it is entitled to judgment as a matter of law. Plaintiff's ADA and DCHRA claims are time-barred. Plaintiff failed to exhaust administrative remedies with respect to his ADEA and Title VII claims. He has not produced sufficient evidence from which a reasonable jury could find that DC Water intentionally discriminated against him on the basis of race, and his lack of success on this Section 1981 claim renders moot his request for discovery. Lastly, plaintiff fails to state a breach of contract claim. Accordingly, the Court grants DC Water's motion for summary judgment. An Order is issued separately.
