Liew v. Dist. of Columbia

• Decision Date: 30 September 2017
• Docket Number: Civil Action No. 15–cv–1577 (TSC)
• Citation: 278 F.Supp.3d 77
• Parties: Amy LIEW, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

278 F.Supp.3d 77

Amy LIEW, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 15–cv–1577 (TSC)

United States District Court, District of Columbia.

Signed September 30, 2017

Clarissa Thomas, Law Office of C. Thomas, Chartered, Washington, DC, for Plaintiff.

Aaron Josiah Finkhousen, Laura George, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff Amy Liew brings this suit for racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and the District of Columbia Human Rights Act. (Compl. ¶¶ 8, 12, 16–17). Defendant District of Columbia has moved for summary judgment. (ECF No. 14). For reasons set forth below, the court will GRANT the District's motion.

I. FACTUAL BACKGROUND

Liew, who is of Asian descent, began working for the District of Columbia Department of Motor Vehicles ("DMV") on April 7, 2014 as a probationary Legal Instrument Examiner, responsible for responding to customer inquiries, examining documents and processing transactions. (Compl. ¶ 4; Defs. Ex. 3, Cobb Decl. ¶ 7; Defs. Ex. 1). Liew alleges that during her employment, her managers and some of her co-workers treated her "unfairly," spoke to her "rudely in a negative tone," and acted as if she was a child. (Pls. Ex. 1, Liew Aff. p. 1). She surmised that this treatment resulted from her ability to multi-task and her efforts to show kindness to customers. (Id. ) She also overhead an assistant manager, a supervisor and another employee discussing the fact that she obtained her job without having to participate in a panel interview in a tone that suggested they were "upset and a bit jealous." (Id. )

The DMV's tardiness and absence policy requires employees to arrive on time for their shifts. (ECF No. 14–1, Defs. Statement of Undisputed Facts. # 4 (hereinafter "SOF")). According to DMV service center manager Rakonda Cobb, if an employee arrives late for work on an isolated occasion, he or she will be charged with unscheduled annual leave, but an employee (particularly a probationary employee) who establishes a pattern of tardiness presents a problem that Cobb will "address"—even when the employee calls ahead to notify the DMV of the anticipated tardiness. (Cobb Decl. ¶ 6). Consequently, failure to receive advance approval for a late arrival can result in the employee being charged absent without leave (AWOL). (SOF # 5).

According to the DMV, on September 16, 2014, at Cobb's direction, a supervisor spoke to Liew about three prior tardiness events and warned her that further incidents would result in her being charged AWOL. (Cobb Decl. ¶ 9; Defs. Ex. 4). Several months later, on November 12, 2014, Liew arrived 7 minutes late and was charged AWOL, resulting in an hour's loss of pay. (Defs. Ex. 2, Bates # 659, 660).

Two days later, on November 14, 2014, Thomas Gaymon, an African–American co-worker (whom Liew "believes" is friends with her supervisors), started to "make fun of Liew" and make negative comments about her race. (Compl. ¶¶ 8, 12). When she protested, he threatened to "punch her in the face" and "beat her up" after work. (Id. ¶¶ 8–9). Liew claims that although she immediately reported the incident to the Human Resources Department, they "did nothing" and, likewise, neither did the agency director or her two supervisors (both of whom are African–American). (Id. ¶¶ 9–10). Liew asserts she again reported the incident the next business day, at which time the agency director moved Gaymon to what Liew describes as "a different branch," (id. ¶¶ 10–12), although it appears that he was relocated to a building in a different part of the city. (See Defs. Exs. 1, 9).

Liew alleges that after this incident, her supervisors began treating her differently by "targeting" her for tardiness and marking her AWOL when she was "a minute or two late," but they did not treat other employees in the same manner. (Liew Aff. p.1). Liew was subsequently charged AWOL for tardiness on December 4, 2014 (three minutes late), December 9 (four hours late), December 13 (unclear how late),¹ and January 16, 2015 (four minutes late). (Cobb Decl. ¶ 11; Defs. Ex. 2, Bates # 661-671).

After Liew arrived one minute late on January 22, the DMV placed a letter in her file, described as a "follow-up" to her conversation earlier in the day with a supervisor. (Defs. Ex. 12). In the letter, the supervisor chastised Liew for her continuing tardiness and noted it had been suggested on three separate occasions that Liew adjust her report time, but she had refused. (Id. ) Finally, the supervisor reminded Liew that her "tour of duty" began at 8:00 a.m. and that she should plan to arrive prior to that time each day. (Id. ) According to the DMV, the following day, January 23, Liew again arrived late.² (Cobb Decl. ¶ 11; Defs. Ex. 2, Bates # 666–667, 671).

The DMV terminated Liew on February 6, 2015, before her probationary period expired. (Defs. Exs. 1, 5). Cobb, the supervisor who recommended terminating Liew, also recommended terminating three other probationary Legal Instrument Examiners for "failing to appear for work on time": Frances Goins, Michael Monk and Jovan Powell. (Cobb Decl. ¶¶ 13–16; Defs. Exs. 6–8).³

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where there is no disputed genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ). A plaintiff must provide more than her conclusory statements to oppose a motion for summary judgment, as "[c]onclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact." Sage v. Broad. Publ'ns, Inc. , 997 F.Supp. 49, 53 (D.D.C. 1998).

III. TITLE VII STANDARD

Title VII of the Civil Rights Act provides that employment decisions must be "made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e–16(a). It also prohibits retaliation against any employee because she "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e–3(a).

D.C. Code § 2–1402.61 prohibits retaliation against employees who exercise their DCHRA rights, making it unlawful to "retaliate against...any person...on account of having exercised or enjoyed... any right granted or protected" under the DCHRA, and imposes liability on persons who aid or abet DCHRA violations. § 2–1402.61(a). In analyzing a claim of employment discrimination or retaliation under the DCHRA, this court looks to Title VII and its jurisprudence. Regan v. Grill Concepts–D.C., Inc. , 338 F.Supp.2d 131, 134 (D.D.C. 2004).

The court analyzes Title VII claims under the well-established burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; Barnette v. Chertoff , 453 F.3d 513, 515 (D.C. Cir. 2006). Under this framework, the plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to do so, the plaintiff must demonstrate that she: (1) is a member of a protected class; (2) suffered an adverse employment action; and (3) the challenged adverse action gives rise to an inference of discrimination. McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817. "To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action ‘because’ the employee opposed the practice." McGrath v. Clinton , 666 F.3d 1377, 1380 (D.C. Cir. 2012).

While the plaintiff maintains the burden of persuasion at all times, Burdine , 450 U.S. at 253, 101 S.Ct. 1089, once she establishes a prima facie case of discrimination, the burden of proof "shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [action in question],’ " Wiley v. Glassman , 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting Burdine , 450 U.S. at 253, 101 S.Ct. 1089 ). In asserting a legitimate, non-discriminatory justification for the challenged actions, the defendant "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine , 450 U.S. at 254, 101 S.Ct. 1089 (citation omitted). Ordinarily, the burden then shifts back to the plaintiff to demonstrate that the asserted reason is a pretext for discrimination. Id. at 253, 101 S.Ct. 1089. However, where the defendant provides a legitimate, non-discriminatory explanation for its actions at the summary judgment stage, "the district court need not—and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas ." Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, the court's focus is whether the plaintiff produced "sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the [plaintiff] on [a prohibited basis]." Id. ; see also Jones v. Bernanke , 557 F.3d 670, 679 (D.C. Cir. 2009).

IV. ANALYSIS

It is...