Cain v. Reinoso, 11–CV–249.

• Decision Date: 10 May 2012
• Docket Number: No. 11–CV–249.,11–CV–249.
• Citation: 43 A.3d 302,114 Fair Empl.Prac.Cas. (BNA) 1693
• Parties: Bonnie J. CAIN, Appellant, v. Victor REINOSO, et al., Appellees.
• Court: D.C. Court of Appeals

43 A.3d 302

114 Fair Empl.Prac.Cas. (BNA) 1693

Bonnie J. CAIN, Appellant,

v.Victor REINOSO, et al., Appellees.

No. 11–CV–249.

District of Columbia Court of Appeals.

Argued April 5, 2012.

Decided May 10, 2012.

John P. Racin, with whom James R. Klimaski and Lynn I. Miller, Washington, were on the brief, for appellant.

Carl J. Schifferle, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellees.

Before GLICKMAN and BECKWITH, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

In this suit claiming compensatory and punitive damages for age discrimination, the plaintiff-appellant, Bonnie Cain, appeals the trial court's order granting summary judgment for the appellees, Deputy Mayor Victor Reinoso and the District of Columbia. The incidents at issue arose after the mayoral election of 2007 and the subsequent passage of the Public Education Reform Amendment Act of 2007.¹ Cain had worked on behalf of Mayor Adrian Fenty's campaign, and Reinoso—newly named though not yet confirmed as Deputy Mayor for Education—hired her on January 7, 2007, as an education policy analyst (formally titled a “Special Assistant to the Deputy Mayor”).² Cain remained in that position at the Office of the Deputy Mayor for Education (ODME) for nearly one year until December 14, 2007, when, at age sixty-two, she was discharged by Reinoso. She alleges that, in terminating her employment, Reinoso violated the District of Columbia Human Rights Act (DCHRA).³ She argues that she has established a prima facie case and rebutted appellees' pretextual explanation for retaining a younger special assistant instead of her during a period of downsizing at ODME. Concluding that summary judgment was properly granted, we affirm.

I.

Before addressing the particulars of Cain's claim, it will be useful to establish the legal framework for analysis. “In considering claims of discrimination under the DCHRA, we employ the same three-part, burden-shifting test articulated by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green.” ⁴

In order to survive a motion for summary judgment, [the employee must] establish a prima facie case that [the employer discriminated against] [her]. If such a showing is made, the burden shifts to the employer to articulate a legitimate basis for [its action]. If the employer articulates a legitimate, nondiscriminatory basis for the [action], the burden shifts back to the employee to demonstrate that the employer's action was pretextual.⁵

Age discrimination must have “actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome.” ⁶ Therefore, to establish a prima facie showing of discrimination,

a plaintiff generally must demonstrate (1) that [she] was a member of a protected class, (2) that [she] was qualified for the job from which [she] was terminated, (3) that [her] termination occurred despite [her] employment qualifications, and (4) that a substantial factor in [her] termination was [her] membership in the protected class.⁷

Once the employee has made such a showing “by a preponderance of the evidence”—creating a “rebuttable presumption that the employer's conduct amounted to unlawful discrimination” ⁸—the “burden of production,” not persuasion, shifts to the employer.⁹ The employer can then satisfy its burden “by producing admissible evidence from which the trier of fact [can] rationally conclude that the employment action [was not] motivated by discriminatory animus” but, rather, reflected a “legitimate, nondiscriminatory reason” for its action.¹⁰ If the employer meets that burden, “the presumption of discrimination” raised by the employee's prima facie showing “is rebutted and drops from the case.” ¹¹ At this point, the employee's burden to show that the employer's stated reason for its action was pretextual—a disguise for discrimination—“merges with the ultimate burden of persuasion on the question of intentional discrimination.” ¹² Thus, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” ¹³

This case is before us on summary judgment, which we review de novo.¹⁴ To prevail on appeal, defendants “must demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law.” ¹⁵ Although “we examine the evidence in the light most favorable to the party opposing the motion, ‘[c]onclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment.’ ” ¹⁶ The question, therefore, is whether there is any record evidence, after discovery, on which a jury could properly reach a verdict for the party with the burden of persuasion.¹⁷

II.

Very briefly summarized, Cain presents the following prima facie case: at age sixty-two she was a member of a protected class; ¹⁸ she was qualified for her job; ¹⁹ but she was fired nonetheless because of her age, as evidenced by (1) a “bogus” performance evaluation, (2) Reinoso's decision to hire an unqualified young woman in her thirties to replace Cain, and (3) a pattern of firing older employees and hiring only younger ones.

The trial court initially denied appellees' motion for summary judgment, but, after a hearing and supplementary briefing, granted the motion on the ground that Cain had “not established a prima facie case of age discrimination.” ²⁰ We are not prepared to evaluate Cain's prima facie case and the trial court's judgment of it without understanding the larger context from which it arose—a context from which we can also discern and evaluate appellees' effort to refute Cain's case by establishing a legitimate, nondiscriminatory basis for terminating Cain's employment. We shall therefore assume for sake of argument that Cain has established her prima facie case and address whether, in response, appellees have articulated a “legitimate, nondiscriminatory basis” for terminating Cain's employment at ODME.²¹

III.

It is undisputed that pursuant to the Reform Amendment Act ²² adopted three months after Cain was hired, the Mayor gained control over the newly reorganized District of Columbia Public Schools (DCPS), through creation of a separate cabinet-level agency to replace the traditional, elected school board. The Act also gave the Deputy Mayor for Education the authority to reorganize and oversee the Office of the State Superintendent for Education (OSSE) and the Office of Public Education Facilities Modernization, as well as to create and staff a new Office of Ombudsman for Public Education.²³

In his testimony before the Council of the District of Columbia (Council) on July 7, 2007 (and later under oath on deposition), Reinoso described his task as the Mayor's principal appointee charged with responsibility for these entities through ODME. He explained how he intended to modernize his office in an effort to ensure that ODME provided educational services to the District in a more efficient and effective manner. Among his goals, Reinoso sought to bring to the District a “central, coordinated, and aligned service delivery across all education levels.” Implementation of this plan, in addition to oversight of OSSE and the “facilities modernization agency,” would require organization of “five core functions” within ODME: (1) advise the mayor on educational strategy; (2) “[c]oordinate across [District] agencies for education-related initiatives”; (3) “[h]ouse and oversee an ombudsman to serve as the point of contact for residents”; (4) “[d]evelop partnerships in a systematic way” among the public and private sectors and non-profit agencies; and (5) “[c]oordinate parent and community involvement initiatives.”

Reinoso informed the Council that, as guiding principles, ODME would provide a “lean” structure, and eliminate “redundant activities.” ODME, according to Reinoso, had to “remain dynamic and flexible” and “only employ [ ] as many people as are necessary to accomplish [this] mission.” He emphasized maintaining a staff with “a broad range of experience and skills sets, with a particular emphasis on the ability to jump into any issue to move it forward.” ODME would also seek to avoid activities that duplicated those of OSSE or DCPS. The timeline for the transition, Reinoso added, would “occur [ ] over the next couple of months.” ²⁴

There is a dispute as to when Reinoso informed ODME staff members of impending personnel changes. Reinoso says June 2007; Cain recalls “the end of July or right at the beginning of September.” ²⁵ In any event, according to Cain's deposition, Reinoso told everyone that the Mayor required that ODME “downsize,” and that he, Reinoso, would help staff members who wished to do so attempt to transfer to OSSE.²⁶ Cain was interested in working at OSSE, informed Reinoso of that interest and, as a result, was detailed there.²⁷ In the meantime, Reinoso was trying to figure out who was going to stay at ODME.²⁸

On October 26, 2007, Reinoso informed the personnel office that he wished to dismiss Cain and Jackie Pinckney–Hackett (a woman in her fifties) effective November 30, 2007 (although Cain's leave date was later extended to December 14, 2007). Cain apparently did not learn of her impending separation from service until she received a notice of termination on November 14, 2007, the same day that Pinckney–Hackett received her notice.²⁹

The parties dispute why Reinoso ended Cain's employment. Cain acknowledges on deposition, however, that neither Reinoso nor Eric Lerum, Reinoso's chief of staff, ever made any age-related or discriminatory remark to her. Reinoso offers the following explanations.

Reorganization, Including Downsizing

In the first place, Reinoso planned to reorganize ODME and...