Burton v. Dist. of Columbia

• Decision Date: 09 October 2015
• Docket Number: Civil Action No. 10-1750 (BAH)
• Parties: Gerald Burton, et al., Plaintiffs, v. District of Columbia, Defendant.
• Court: U.S. District Court — District of Columbia

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Gerald Burton, et al., Plaintiffs,
v.
District of Columbia, Defendant.

Civil Action No. 10-1750 (BAH)

United States District Court, District of Columbia.

Signed October 9, 2015

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Chad Alan Naso, Chad Wayne Copeland, Gary Daniel Feldon, Robert Joseph Rich, Sara Elizabeth Tonnesen, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Plaintiffs are nineteen African–American current and former employees of the District of Columbia Fire and Emergency Medical Services Department (“DCFEMS”). Along with twenty-five of their colleagues, the current plaintiffs sought to initiate a class action against DCFEMS on behalf of themselves and all African–American firefighters and EMS employees subject to discipline or denied promotion by DCFEMS on or after October 15, 2007. See Am. Compl., ECF No. 20. Following extensive pre-certification discovery, the plaintiffs elected not to move for class certification. Pls.' Status Report, ECF No. 64. Thereafter, eighteen of the original plaintiffs voluntarily withdrew their claims against the District, leaving twenty-six plaintiffs pursuing claims against the District individually in the Second Amended Complaint, see Sec. Am. Compl. (“SAC”), ECF No. 86–2, for which individual claims the Court permitted an additional ten months of discovery, see Minute Order, dated July 31, 2014. Pending before the Court are twenty motions filed by the District of Columbia seeking summary judgment on the remaining claims set out in the plaintiffs' Second Amended Complaint. For the reasons set out below, each of these motions for summary judgment is granted.¹

I. BACKGROUND

Although this case was commenced as a putative class action, in its present iteration, the plaintiffs' allegations separately describe the individual experiences of nineteen current and former African–African DCFEMS employees. Various plaintiffs challenge several of the same DCFEMS programs or procedures, but their allegations more obviously demonstrate the unique circumstances giving rise to their distinct claims of discrimination. They were employed in a variety of capacities and served in separate components throughout DCFEMS. While certain plaintiffs allege only that they were subjected to a racially discriminatory disciplinary regime, others variously allege that they were not promoted, were forced to obtain EMT training and certification, or were subjected to harassment and ridicule on account of their race. Finally, while at least eight of these plaintiffs have separated—voluntarily or otherwise—from DCFEMS, the remaining plaintiffs continue to work for DCFEMS.

The plaintiffs' written submissions—including the 47–page Second Amended Complaint and an 86–page Omnibus Opposition to the instant summary judgment motions—do little to explain the degree to

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which their allegations are mutually supportive or otherwise interrelated. As a result, the task of organizing the plaintiffs' allegations into a more comprehensible form in order to draw all inferences in their favor on their respective claims of workplace discrimination has posed a challenge. Even after indulging in ample discovery throughout nearly two years, the plaintiffs each have failed to demonstrate sufficient record evidence to support their various claims to raise a genuine factual issue requiring resolution at trial.²

A. PROCEDURAL HISTORY

Claiming violations of 42 U.S.C .§§ 1981 and 1983, forty-four African–American current and former DCFEMS employees filed this lawsuit to pursue a class action on behalf of “all current and former African American Firefighters and EMS employees at the D.C. Fire and EMS Department who experienced a hostile work environment, were subjected to unfair termination, to discipline unequal to that of their similarly situated White colleagues, were discriminatorily denied promotions that were awarded to their White colleagues, or were otherwise subjected to discrimination within the applicable statute of limitations.” Burton v. District of Columbia, 277 F.R.D. 224, 227 (D.D.C.2011) (citing Am. Compl. ¶ 16). The plaintiffs requested declaratory and injunctive relief, including reinstatement of wrongfully disciplined employees and expungement of discriminatory disciplinary actions; retroactive promotion of all African–American employees denied promotions based on the 2006, 2008, and 2010 DCFEMS promotional examinations; back pay and benefits; compensatory damages for, inter alia, loss of reputation and physical and emotional distress; and punitive damages. Id. (citing Am. Compl. ¶¶ 115–120).

The plaintiffs' motion for class certification was provisionally denied, on December 23, 2011, since the Amended Complaint failed to allege with sufficient detail the District's discriminatory disciplinary process and use of “a biased testing procedure to evaluate employees” or that the District operated under a general policy of discrimination, in order to satisfy the commonality requirement of Federal Rule of Civil Procedure 23(a)(2). Burton, 277 F.R.D. at 228–30 (citing Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2553, 180 L.Ed.2d 374 (2011) ). Nonetheless, because the plaintiffs alleged a “potentially viable class claim,” the Court granted an initial sixty days of pre-certification discovery. Id. at 230–31.

Nearly two years later, following numerous extensions of the pre-certification discovery deadline, see Minute Orders, dated February 10, 2012, March 26, 2012, April 18, 2012, May 25, 2012, July 13, 2012, September 17, 2012, November 5, 2012, January 22, 2013, May 10, 2013, and October 25, 2013 (extending discovery deadline to June 25, 2014), the plaintiffs notified the Court that they would no longer seek class certification and would instead litigate the respective claims of certain of the original forty-four plaintiffs. See Pls.' Status Report, ECF No. 64. Thereafter, on November 8, 2013, twenty-six of the original forty-four

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plaintiffs jointly filed a Second Amended Complaint alleging specific instances of discrimination experienced by the remaining plaintiffs. See generally SAC.

The Second Amended Complaint alleges three causes of action. Count I, pursued only by three plaintiffs, Gerald Burton, Joshua Fuller, and Tawanna Robinson, alleges the DCFEMS subjected the plaintiffs to a hostile work environment, and racially discriminatory discipline, and otherwise intentionally discriminated against the plaintiffs, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. SAC ¶¶ 397–414. Count II, pursued by all plaintiffs, alleges that the DCFEMS subjected the plaintiffs to a hostile work environment through discriminatory discipline and non-promotion, in violation of 42 U.S.C. § 1981. Id. ¶¶ 415–25. Count III, also pursued by all plaintiffs, alleges discriminatory punishment and promotion, as well as maintaining a hostile work environment, in violation of 42 U.S.C § 1983. Id. ¶¶ 426–35. The plaintiffs seek declaratory and injunctive relief, including that the District institute additional anti-discrimination policies and training. Id. ¶¶ 438–49.

Despite the extensive pre-certification discovery, the plaintiffs requested additional discovery, on grounds that such discovery was necessary to obtain information relevant to each remaining plaintiff's circumstances. See Pls.' Mot. Compel & Extend Discovery Deadline, ECF No. 123 (requesting, over objection by the District, an extension of the discovery deadline to allow the plaintiffs to “review the District's outstanding discovery and to schedule further fact and Rule 30(b)(6) witnesses”). This final request was granted, and discovery then continued. See Minute Order, dated July 31, 2014. Along the way, the claims of seven of the remaining plaintiffs were dismissed, either voluntarily or in response to a motion by the District, see Minute Orders, dated April 30, 2014, May 13, 2014, June 2, 2014, June 12, 2014, March 11, 2015, April 2, 2015, and May 1, 2015, leaving the current nineteen plaintiffs.

The District now moves for summary judgment as to the remaining § 1982 and Title VII claims of each current plaintiff separately. ECF Nos. 145–47, 150–57, 159–162, 163–66.³ The District likewise renewed its motion to dismiss the plaintiffs' claims arising under 42 U.S.C. § 1981. ECF No. 143.⁴

B. FACTUAL BACKGROUND

Each current plaintiff alleges that he or she was discriminated against on the basis of race during the course of his or her employment by DCFEMS. Despite this facial similarity, however, each plaintiff asserts unique factual allegations underlying his or her individual claims, which also vary among the plaintiffs. For example, only three plaintiffs (Gerald Burton, Joshua Fuller, and Tawanna Robinson) assert causes of action under Title VII. Likewise, while all but three of the plaintiffs allege that they were subjected to racially discriminatory

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discipline, only six plaintiffs (Charles Addo, Jonathan Morris, Nelson, Robert Person, John Thomas, and Anthony Walker) allege that they were not selected for promotion during the relevant years on account of their race. Although Counts II and III suggest that each plaintiff alleges that he or she was subject to a hostile work environment, see SAC ¶¶ 424, 436, the Second Amended Complaint lacks any specific hostile work environment allegation with respect to five plaintiffs (Daniel Botts, James Johnson, Albert Montgomery, Nelson, and Christopher Walker), see SAC ¶¶ 74–83, 155–86, 216–28, 355–62. Finally, four plaintiffs allege that they were subjected to disparate treatment when they were required to attend a training academy to obtain EMT certification.

The individual discrimination claims asserted by each plaintiff are summarized in the chart below, with checkmarks indicating the claims asserted by individual plaintiffs.

Count I ...