Kangethe v. Dist. of Columbia

• Decision Date: 20 November 2017
• Docket Number: Civil Action No. 15–2185 (CKK)
• Citation: 281 F.Supp.3d 37
• Parties: John KANGETHE, Plaintiff v. The DISTRICT OF COLUMBIA, Defendant
• Court: U.S. District Court — District of Columbia

281 F.Supp.3d 37

John KANGETHE, Plaintiff

v.The DISTRICT OF COLUMBIA, Defendant

Civil Action No. 15–2185 (CKK)

United States District Court, District of Columbia.

Signed November 20, 2017

John N. Kangethe, Washington, DC, pro se.

Steven J. Anderson, Office of the Attorney General for the District Of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District JudgeThis is an age discrimination and retaliation case brought by an employee of the District of Columbia Department of Employment Services ("DOES"). Plaintiff John Kangethe, who is representing himself pro se , alleges that he was passed over for a promotion on the basis of his age and as retaliation for earlier discrimination complaints. Specifically, Plaintiff alleges that he was not selected to fill an Associate Director position with the Office of Labor Market Research and Information ("LMI AD Position"). He also alleges that he was retaliated against when he was denied leave to attend the deposition of a party to a prior discrimination lawsuit. Plaintiff brings this lawsuit against the District of Columbia under the Age Discrimination in Employment Act ("ADEA"), the District of Columbia Human Rights Act ("DCHRA") and Title VII of the Civil Rights Act ("Title VII").

Before the Court is Defendant District of Columbia's [30] Motion for Summary Judgment. Defendant claims that it is entitled to summary judgment for two reasons. First, Defendant argues that Plaintiff cannot establish his prima facie case with respect to his claim that he was denied leave, because this alleged denial did not constitute an "adverse action." Second, Defendant argues that Plaintiff has not rebutted Defendant's proffered legitimate non-discriminatory reason for not selecting Plaintiff for the LMI AD Position.

Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Court DENIES Defendant's motion. First, the Court finds that a reasonable jury could conclude that Defendant's failure to approve Plaintiff's request for leave in a timely fashion, thereby denying him the opportunity to prepare for the deposition of a key witness to his earlier discrimination lawsuit, was sufficiently adverse to be actionable. Second, although a close call, the Court finds that Plaintiff has offered enough evidence to rebut Defendant's proffered non-discriminatory reason for not selecting him for the LMI AD Position and that it would be inappropriate for the Court to summarily adjudicate that claim.

I. BACKGROUND

Plaintiff John Kangethe is approximately 61 years old. Def.'s Stmt. of Material Facts not in Dispute, ECF No. 30 ("Def.'s Stmt."), at ¶ 1. He is a Labor Economist at DOES. Id.

A. Denial of Plaintiff's Request for Leave

On April 7, 2014, Plaintiff submitted a request to take eight hours of leave from work on April 9, 2014 so that he could prepare for and attend the deposition of a key witness to a prior discrimination lawsuit that he had filed against the District of Columbia. Id. ¶ 39; Depo. of John Kangethe, ECF No. 30–19 ("Pl.'s Depo."), at 6:15–20, 21:18–21. The deposition was scheduled for 3:30 pm. Def.'s Stmt. ¶ 37. Having received no response to his request by the morning of the ninth, Plaintiff reported to work. Id. ¶¶ 42–43. He e-mailed his supervisor reminding him of his request and notifying him that he would be taking off four hours in the afternoon. Id. Plaintiff still got no response, but he went to the deposition. Id. ¶ 45. Plaintiff's supervisor later claimed to have forgotten to respond to Plaintiff's request and e-mail. Id. ¶ 47. The supervisor did not charge Plaintiff with leave for the four hours of work he missed on the afternoon of the ninth. Id. ¶ 49. However, Plaintiff did not take the four hours of leave he had requested on the morning of that day that he had intended to use to prepare for the deposition. Pl.'s Depo. at 21:18–21.

B. The LMI AD Position

A vacancy announcement for the LMI AD Position was issued on May 6, 2014 ("Vacancy No. 25001"). Def.'s Stmt. ¶ 6. DOES Human Resource specialist Lachelle Savoy conducted an initial review and scoring of the applications that were submitted and decided which applicants were sufficiently qualified. Id. ¶ 3; see also generally Depo. of Lachelle Savoy Rogers, ECF No. 30–17 ("Savoy Depo."). One of the factors Ms. Savoy was required to consider when scoring applications was whether the applicant had "five years of specialized experience in supervisory or project coordination assignments involving a staff of professional economists or researchers, and experience in conducting economic analyses and studies regarding highly complex and sophisticated issues." Def.'s Stmt. ¶ 22.

Plaintiff applied to Vacancy No. 25001. Id. ¶ 6. Ms. Savoy testified that she scored Plaintiff's application and that his score was beneath the threshold required for further consideration. Savoy Depo. at 29:10–12. Ms. Savoy testified that she was unable to score Plaintiff any higher than she did because his application did not contain a resume. Id. at 29:19–31:20. In particular, she testified that the absence of a resume rendered her unable to assess whether Plaintiff had the requisite experience in supervisory or project coordination assignments. Id. at 16:8–20, 29:19–31:20. Plaintiff contends that this is false—he testified that he did submit a resume and that Ms. Savoy had more than enough material to determine Plaintiff's experience. Pl.'s Depo. at 24:9–17. Vacancy No. 25001 was cancelled after no one had been chosen for the position for sixty days. Savoy Depo. at 33:2–14.

However, a vacancy announcement for the same LMI AD Position was re-posted on August 11, 2014 ("Vacancy No. 25461"). Def.'s Stmt. ¶ 14. It is undisputed that Plaintiff did not submit an application for Vacancy No. 25461. Id. ¶ 7. Saidou Diallo, an economist employed at DOES who is much younger than Plaintiff, did submit an application and was selected for the position. Id. ¶¶ 16–17.

II. LEGAL STANDARD

Summary judgment is appropriate where "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). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n ofFlight Attendants–CWA, AFL–CIO v. Dep't of Transp. , 564 F.3d 462, 465–66 (D.C. Cir. 2009). Moreover, where "a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may "consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman , 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby , 477 U.S. at 251–52, 106 S.Ct. 2505. In this regard, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby , 477 U.S. at 249–50, 106 S.Ct. 2505 (internal citations omitted).

In recognition of the difficulty in uncovering clear evidence of discriminatory or retaliatory intent, the district court should approach summary judgment in an action for employment discrimination or retaliation with "special caution." Aka v. Wash. Hosp. Ctr. , 116 F.3d 876, 879–80 (D.C. Cir. 1997), vacated on other grounds , 156 F.3d 1284 (D.C. Cir. 1998) (en banc ). Be that as it may, the plaintiff is not relieved of his burden to support his allegations with competent evidence. Brown v. Mills , 674 F.Supp.2d 182, 188 (D.D.C. 2009). As in any context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, at the summary judgment stage he bears the burden of production to designate specific facts showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). Otherwise, the plaintiff could effectively defeat the "central purpose" of the summary judgment device—namely, ...