Francis v. Dist. of D.C.
| Decision Date | 18 August 2010 |
| Docket Number | Civil Action No. 07-1473 (JDB) |
| Citation | 731 F.Supp.2d 56 |
| Parties | Thomas M. FRANCIS, Jr., Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Woodley B. Osborne, Mehri & Skalet, PLLC, Robert C. Seldon, Robert C. Seldon & Associates, PC, Washington, DC, for Plaintiff.
Darrell Chambers, Esther Yong, District of Columbia Office of the Attorney General, Melvin W. Bolden, Jr., Office of the Attorney General, Washington, DC, for Defendants.
Thomas Francis, a former employee of the District of Columbia Office of Property Management ("OPM"), brings this action for reverse discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, et seq., and for retaliation pursuant to the District of Columbia Human Rights Act ("DCHRA"), D.C.Code §§ 2-1401.01, et seq. He alleges that, as a white male in a predominantly African American agency, he suffered reverse discrimination when the District terminated his employment in 2003. He further alleges that, after he filed an EEO charge, the District retaliated against him in 2007 when he sought reemployment with the District but was not selected for two positions. Before the Court is the District's motion for summary judgment on both counts. Upon careful consideration of the parties' memoranda, the applicable law, and the entire record herein, and for thereasons set forth below, the Court will grant the District's motion.1
Francis began working for OPM in 1999 as head of the Protective Services Division-a Grade 14 position. See Pl.'s Ex. 2 at 25 ("Francis Dep."). In that role, he supervised District and contract law enforcement officers and security guards, and oversaw the facilities and policies pertinent to security. Id. In 2000, his job was converted to an at-will Management Supervisory Service ("MSS") position. See Defs.' Ex. 2 ("MSS Offer and Acceptance"). And in 2002, the position was reclassified from Grade 14 to Grade 15. See Defs.' Ex. 3 ("Request for Personnel Action").
Around July or August of 2002, Deputy Mayor Herb Tillery, an African American, appointed Marceline Alexander, also an African American, as Chief of Staff of OPM. See Pl.'s Ex. 7 at 21, 22, 29-35 ("Alexander Dep."); Francis Dep. at 90. At the time, the "perception of the department as a whole was very, very bad." Alexander Dep. at 82. Councilmember Jim Graham was conducting oversight hearings into allegations surrounding OPM's activities. See id. at 57. The Director of OPM, Tim Diamond, and the Deputy Director, Michael Lorusso, were suspected of criminal activity. See id. at 82. Both eventually left the agency over these events, and Lorusso pleaded guilty to criminal charges for actions taken at OPM. See id. at 58-59.2 After Diamond and Lorusso's departures, Alexander became Acting Director of OPM. See id. at 21.
On July 14, 2003, Alexander gave Francis notice that his employment was being terminated effective July 29, 2003. See Defs.' Ex. 6 ("Termination Letter"). The termination was without cause pursuant to his at-will status. See id.; Francis Dep. at 151. Although Alexander gave no reason for Francis's termination at the time, she stated in her deposition that she believed that the office needed to be "reengineered" in order to restore confidence in it. Alexander Dep. at 82, 84-85. She further stated that she made the decision to terminate Francis after hearing numerous allegations about alleged improprieties in which he was involved. See id. at 85. There were, in her words, "too many smoking guns" around him. Id. at 86. These allegations included improper involvement with a contract, failure to report stolen guns, improperly removing guns without signing them out, outfitting personal vehicles with equipment, and taking government vehicles home. See id. at 60-62.
After Francis's termination, his position was advertised at the Grade 15 level. See Defs.' Ex. 7 ("PSM First Vacancy Announcement"). When the search generated few candidates, the position was re-advertised at the Grade 14 level, with the agency stating it was interested in a larger pool of applicants. See Defs.' Ex. 9 ("PSM Second Vacancy Announcement"); Defs.' Ex. 8 ("PSM First Selection Certificate"). On or around December 15, 2003, Plez Jenkins, an African American, was hired from this new pool of applicants. SeeDefs.' Ex. 11 ("Second Selection Certificate"); Pl.'s First Am. Compl. at ¶ 20. Carol Mitten, a white woman, was the hiring official. See Pl.'s Ex. 9 at 18-19 ("Mitten Dep."). Alexander had left OPM on December 3 or 4, 2003, almost five months after terminating Francis, and was not involved in the decision to hire Jenkins. See Alexander Dep. at 101.
Francis then, for the first time, became suspicious that the District had terminated him with an "agenda" to replace him with an African American. Francis Dep. at 149. On May 20, 2004, he filed a discrimination charge with the EEOC. Defs.' Ex. 13 ("Charge of Discrimination"). Sixteen months later, on September 15, 2005, the EEOC issued a two-page determination summarily concluding that there was cause to believe Francis was terminated based on race. Defs.' Ex. 14 ("EEOC Determination").
In February 2007, over a year after issuance of the EEOC Determination, Francis applied for the position of Risk Management Coordinator (job reference # 5881) with OPM. See Defs.' Ex. 17 ("# 5881 Vacancy Announcement"); Defs.' Ex. 18 ("# 5881 Selection Certificate"). Although Francis was ranked well qualified for the position, he was not selected for the job. See # 5881 Selection Certificate. Instead, Sonya Williams, an internal candidate who was also considered well qualified, was chosen on April 20, 2007. Id.
A few months later, in September 2007, Francis applied for another job with the District: Management Analysis Officer (job reference # 7779) with the Office of Risk Management. See Defs.' Ex. 16 ("Francis Resume/Application for # 7779"); Defs.' Ex. 22 ("# 7779 Selection Certificate"). Francis was considered qualified for the position ( see # 7779 Selection Certificate), but he was not selected for that job either. Instead, Gail Allen, a qualified candidate with substantial insurance management experience, was selected on October 5, 2007. See id.; Defs.' Ex. 23 ("Allen Application").
Francis filed this suit on August 15, 2007, asserting claims under Title VII and the D.C. Human Rights Act based on his termination and defendant's subsequent actions allegedly damaging his professional reputation. Compl., Counts I-VI. On September 28, 2007, Francis sent notice pursuant to D.C.Code § 12-309 of his intent to sue the District of Columbia under the D.C. Human Rights Act for discrimination with respect to his termination and for retaliation with respect to the non-selection decisions. See Defs.' Ex. 25 ("Notice Letter"). Thereafter, on October 22, 2007, he filed his First Amended Complaint refining his discrimination claim (Count I), deleting the earlier retaliation claims concerning his professional reputation, and adding a retaliation claim under the D.C. Human Rights Act based on the non-selections (Count II).
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see also Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the Court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. Thus, the nonmoving party cannot rely on mere speculation to defeat a motion for summary judgment. See Hutchinson v. Cent. Intelligence Agency, 393 F.3d 226, 229 (D.C.Cir.2005). Nor can the nonmoving party rely on hearsay statements or conclusory statements with no evidentiary basis to establish a genuine issue of material fact. See Assoc. of Flight Attendants-CWA v. Dep't of Transp., 564 F.3d 462, 465 (D.C.Cir.2009). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Moreover, a moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
"[B]odies within the District of Columbia government are not suable as separate entities" unless statutory authority exists to the contrary. Braxton v. Nat'l Capital Housing Auth., 396 A.2d 215, 216 (D.C.1978) (citations omitted). Sections 10-1001 through 10-1015 of the D.C.Code establish the duties and powers of the Office of Property Management. None of those provisions grants OPM the authority to sue and be sued. OPM is therefore non sui juris. Accordingly, the Court dismisses OPM from this action, leaving the District as the sole defendant.
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