Guisbert v. Wash. Convention & Sports Auth.

• Decision Date: 31 March 2022
• Docket Number: Civil Action 19-cv-2838 (TSC)
• Parties: GONZALO GUISBERT, Plaintiff, v. WASHINGTON CONVENTION AND SPORTS AUTHORITY, trading as EVENTS DC Defendant.
• Court: U.S. District Court — District of Columbia

GONZALO GUISBERT, Plaintiff,
v.
WASHINGTON CONVENTION AND SPORTS AUTHORITY, trading as EVENTS DC Defendant.

Civil Action No. 19-cv-2838 (TSC)

United States District Court, District of Columbia

March 31, 2022

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge.

Plaintiff Gonzalo Guisbert filed this action in 2019 against his former employer, Defendant Washington Convention and Sports Authority (“Events DC”), after he was terminated for allegedly sleeping on the job. He alleges numerous age discrimination claims under federal and D.C. law. Events DC has moved for summary judgment, ECF No. 29. For the reasons explained below, this court will DENY the motion.

I. BACKGROUND

A. Factual Background

Events DC is an independent authority of the District of Columbia government responsible for managing and operating the District's convention center. D.C. Code § 10-1202.02. Guisbert-a White Hispanic man in his 60s-began working for Events DC in July 1983 as a building engineer responsible for maintaining and repairing HVAC equipment in the convention center. Events DC's Stmt. of Facts not in Dispute ¶ 2, ECF No. 29-2 (“SOF”). In the decades that he worked for Events DC, Guisbert's role shifted to standing post and monitoring building systems in the convention center's Engineering and Fire Command Center.

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Id. ¶ 3. At all relevant times, he reported to Francis Tarpley and Eric Sidberry, Facilities Supervisors. Id. ¶ 4. Tarpley and Sidberry reported to Najib Mohammed, Maintenance Department Manager, who reported to Hootan Kaboli, Director of Facilities Operations and Services. Id. In February 2017, the Facilities Operations team was realigned, and Guisbert was reclassified from “building engineer” to “HVAC mechanic.” Id. ¶¶ 7-8. Guisbert maintained the same job level, seniority, tenure, salary, and duties, but declined an invitation to apply for the new building engineer position, which had been moved to a higher job level with higher pay. Id. ¶¶ 9-10.

On July 19, 2017, Mohammed sent all Events DC facilities employees a memorandum informing them that sleeping on the job would be grounds for disciplinary action, including possible termination. Id. Ex. 7, July 19, 2017 Memo. The memo stated that “anyone witnessed sleeping, napping, closing their eyes for extended lengths of time, etc., would be met with swift and progressive disciplinary action, ” including possible termination. Id.

Events DC claims that disciplinary action would only be taken if a “member of leadership directly observed an employee” sleeping. SOF ¶ 12. In support, they point to an October 1 email from Kaboli declining to discipline a different employee because “the discovering party is not a member of leadership or management that has identified themselves for a statement, ” Id., Ex. 8, Oct. 1, 2018 Kaboli Email, and Kaboli's deposition, in which he stated, “we don't evaluate members sleeping that weren't found by members of management.” Id.,, Ex. 5, Kaboli Dep. 97:21-98:13 (“Kaboli Dep.”). There is no evidence in the record indicating that Events DC published or disseminated this policy. Id. Guisbert claims that no such policy existed. Pl.'s Stmt. of Disputed Facts ¶ 1, ECF No. 31-2 (“Pl.'s Stmt.”).

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i. Discrimination Claims

Around 3:30 AM on August 30, 2018, Events DC's Assistant Director of Development Cathy Boles went to the command center to ask Guisbert-who was on duty at the time-to open a gate so she could leave the building. SOF ¶ 15. The parties disagree about what happened next. Events DC claims that Boles observed Guisbert “sleeping with a blanket covering his body and his feet propped up on a desk.” Id. Guisbert claims that he was not sleeping and was simply startled when Boles entered the room from behind him. Pl.'s Stmt., Ex. I, Guisbert Aff. ¶ 7. Guisbert also notes that a warning signal sounds in the control room every ten minutes which would have prevented him from falling asleep. Id. ¶ 8.

Boles orally reported this incident to Kaboli, who asked her to memorialize her observation in writing. Id. 80:21-22. On September 5, 2018, Boles prepared a one-paragraph memorandum to Kaboli, stating that she had “encountered Mr. Gonzalo Guisbert, HVAC Mechanic, seemingly asleep with a blanket covering his body and with his feet propped on the desk while on duty.” SOF, Ex. 11, Boles Memo. The next day, Kaboli sent Monica Bullock, Events DC's Deputy Director of Human Resources, a memo describing the incident. SOF Ex. 2, Sept. 6 Kaboli Memo. In the memo, Kaboli stated that Guisbert was not on an authorized break at the time and recommended that he be terminated. Id. ¶ 17.

On September 11, 2018, Kaboli, Bullock, Guisbert, and a union steward met to discuss the incident. Id. ¶ 19. The parties again disagree about what happened next. Events DC contends that Guisbert did not deny having been asleep, and in fact seemed more focused on the question of whether he had a blanket with him. Id. ¶ 19; Kaboli Dep. 93:4-94:18; Ex. 13, Sept. II, 2018 Bullock Handwritten Notes. Guisbert contends that he effectively denied the allegation by stating that he would file a grievance against Events DC and that he “would not resign because [he] didn't do anything wrong.” Pl.'s Stmt., Ex. 1, Guisbert Aff. ¶ 9. It is undisputed

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that Guisbert was offered the “choice” of resignation rather than termination, which he refused. SOF ¶ 19. Later that day, Guisbert was terminated via formal letter based on “[m]anagement's observation of you sleeping under a blanket with your feet propped on top [of] the desk . . . in the Engineering Command Center.” Pl.'s Stmt., Ex. 4, Termination Letter.

On October 1, 2018, an Events DC Facilities Supervisor, Francis Tarpley, sent Kaboli a picture of HVAC mechanic Malcom Whittaker appearing to be asleep at the console of the command center. SOF, Ex. 8, Oct. 1, 2018 Tarpley Email (“Tarpley Email”); see also Pl.'s Stmt., Ex. 9 (photograph referenced in Tarpley Email). In response, Kaboli said the picture was “concerning” and merited “follow up . . . in some form.” Tarpley Email. Kaboli went on to state that there are “[a] lot of unknown facts with just a picture, ” noting that the origin of the picture was unknown, and it was unclear if the “discovering party is . . . a member of leadership or management.” Id. Kaboli promised, at minimum, an “intensive investigation.” Id.

The next day, Kaboli met with Whittaker to discuss the photo. SOF ¶ 23. Whittaker stated that-based on his clothes and appearance-the photo was several years old, and that he may have been on break at the time. Id. Kaboli indicated that Whittaker was given a written warning, though Whitaker stated that he only received a verbal reprimand. Compare Kaboli Dep. 70:7-11 (“A memo to file can serve as a discipline in the future, if needed. . . .”) with Pl.'s Stmt., Ex. 10, Whittaker Depo. 27:16-20 (Q: “So, did you receive any discipline based on this picture? Were . . . you reprimanded? Yes?” A: “A verbal reprimand” Q: “By whom?” A: “Mr. Kaboli.”). Guisbert contends that Whittaker is less than 40 years old. First Am. Compl. ¶ 30, ECF No. 8.

ii. Retaliation Claims

Guisbert claims that after Events DC realigned his and other older workers' job titles, he began to criticize Events DC's mistreatment of older workers. First Am., Compl. ¶¶ 21-28, ECF

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No. 8. He alleges that newer, younger workers who lacked the same certifications that he and other older workers had were hired and paid more. Id. ¶ 23. Guisbert claims that he first spoke to Sidberry and Tarpley about “mistreatment of and efforts to push out older workers, . . . [who] were being fired or forced to quit” in June and July of 2018. Id. ¶ 25-6. Guisbert also claims that he voiced these same concerns at a July 2018 meeting that Bullock, Kaboli, and Oratokhai attended, id. ¶ 27, and that he spoke to Mohammed about the same concerns in early 2018 and August 2018. Id. ¶ 24.

Events DC disputes that Guisbert spoke to Bullock, Kaboli, Mohammed, or Oratokhai, and offers their sworn testimony to the same. Def.'s MSJ at 10-11 & n.4, ECF No. 29. Events DC notes that it would be impossible for any of those individuals to have attended the July meeting, because that meeting was a union ratification meeting. Id. at 10 n. 4. They contend that because ratification meetings are closed to anyone other than represented staff and union officials, Bullock, Kaboli, and Oratokhai could not have been present. Id. at 10. It is not clear from Events DC's papers whether Mohammed was present at the meeting, though he states that Guisbert never spoke to him about the way older workers were treated. Id.

B. Statutory Framework

The Age Discrimination in Employment Act (“ADEA”) prohibits employers from firing employees older than 40 based on their age. 29 U.S.C. §§ 623(a)(1), 631(a). It also prohibits an employer from retaliating against an employee who either participates in an investigation or complains of unlawful age-related employment practices. Id. § 623(d). Title VII of the Civil Rights Act (“Title VII”) similarly prohibits termination based solely on an employee's race. 42 U.S.C. § 2000e-2(a)(1). Its anti-retaliation clause is functionally identical to the ADEA's and bars retaliation against an employee who opposes unlawful discrimination. Id. § 2000e-3(a). The District of Columbia Human Rights Act (“DCHRA”) also makes age and racial

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discrimination unlawful, though its age discrimination provisos carry no age minimum. D.C. Code § 2-1402.11(a)(1)(A). The DCHRA also prohibits retaliation against persons who complain of civil rights violations. Id. § 2-1402.61.

On April 10, 2019, Guisbert filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (“EEOC”), checking the boxes next to age, race, and retaliation. First Am. Compl, Ex. A, EEOC Charge. After receiving a right to sue letter, Guisbert filed this lawsuit on September 20,...