Walker v. Dist. of Columbia, Civil No. 15–00055 (CKK)

• Citation: 279 F.Supp.3d 246
• Decision Date: 30 September 2017
• Docket Number: Civil No. 15–00055 (CKK)
• Parties: Shavon T. WALKER, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

279 F.Supp.3d 246

Shavon T. WALKER, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil No. 15–00055 (CKK)

United States District Court, District of Columbia.

Signed September 30, 2017

Diana Marjorie Savit, Savit & Szymkowicz, LLP, Bethesda, MD, for Plaintiff.

Shermineh C. Jones, Schertler & Onorato, LLP, Kerslyn D. Featherstone, Office of Attorney General, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

Plaintiff, Shavon Walker, is a former employee of the District of Columbia Public Schools ("DCPS"), which is an agency of the Defendant, the District of Columbia (the "District" or "Defendant"). Plaintiff, who is African American, filed suit against Defendant, alleging that Defendant: (1) violated the District of Columbia Whistleblower Protection Act ("DC WPA"); (2) discriminated and retaliated against her on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . ("Title VII"); and (3) retaliated against her for engaging in activity protected under the Rehabilitation Act of 1972, 29 U. S.C. § 700 et seq. ("Rehabilitation Act"), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12100 et seq. Presently before the Court is Defendant's [54] Motion for Summary Judgment.

Upon consideration of the parties' submissions,¹ the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has raised a genuine issue of material fact as to her claims under the Whistleblower Protection Act and for retaliation under Title VII, but not for racial discrimination or retaliation under the ADA or the Rehabilitation Act. Accordingly, the Court shall GRANT–IN–PART and DENY–IN–PART Defendant's [54] Motion for Summary Judgment. Specifically, the Court shall grant Defendant's Motion for Summary Judgment with regard to Plaintiff's racial discrimination claim pursuant to Title VII and her claim for retaliation under the ADA and the Rehabilitation Act, but shall deny Defendant's Motion for Summary Judgment with regard to Plaintiff's claim under the D.C. Whistleblower Protection Act and her claim for retaliation under Title VII.

I. BACKGROUND

A. Factual Background²

As a preliminary matter, this Court notes that in the Background section of Plaintiff's Opposition, Plaintiff notes that "[a]ll facts in this background statement are drawn from the District's statement of undisputed [facts] if those facts are indeed undisputed, and otherwise from Ms. Walker's accompanying statement of genuine issues and statement of countervailing facts," without providing any cites to either party's statement of material facts Pl.'s Opp'n at 11 n.1. Nor does Plaintiff's argument in her Opposition provide cites to the statement of material facts or to the record evidence in this case. Rather, Plaintiff's Opposition to the Motion contains several narrative discussions by the Plaintiff, which are immaterial to the resolution of issues in this Motion.³

Plaintiff's [60–1] Statement of Genuine Issues and Countervailing Facts is fifty-nine pages in length, and her response to the District's Statement No. 4 consists of numerous references to bates-stamped pages that were produced to the District but only provided in part to the Court as Exhibit D to Plaintiff's Opposition. Plaintiff's first countervailing "fact" (out of 178) is not a fact but a narrative that spans eight and one-half pages and includes numerous facts and citations to bates-stamped documents, many of which have not been produced as exhibits to the Plaintiff's Opposition and are therefore not part of the record available to this Court for purposes of determining Defendant's Motion.⁴ Local Civil R 7(h)(1) permits the non-moving party to submit a statement of facts believed to be genuinely disputed, but those facts must be "concise " and shall include specific "references to the part of the record relied on" to support the statement. See LCvR 7(h)(1) (emphasis added). Plaintiff's lengthy chronology of events, presented as the first Countervailing Fact, does not comply with LCvR 7(h)(1) and is therefore stricken. The parties were warned in this Court's March 11, 2015 Scheduling and Procedures Order that "[t]he Court strictly adheres to the dictates of Local Rule 7(h)," that statements of fact must be "short and concise" and that "the Court may strike papers not in conformity" with its rules. Scheduling and Procedures Order, ECF No. 11.

Furthermore, as the District of Columbia Circuit has emphasized, "[ Local Civil Rule 7(h)(1) ] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner , 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese , 854 F.2d 1421, 1425 (D.C. Cir. 1988) ). In the instant case, Plaintiff's Statement of Genuine Issues and Countervailing Facts is unhelpful to the Court in setting forth the required background as certain key facts relating to the timing and substance of Defendant's alleged retaliatory conduct are not contained therein, nor do Plaintiff and Defendant always effectively distinguish between events that took place while Plaintiff was at McKinley Technical High School ("McKinley") or at Shaw–Garnett Patterson Middle School ("Shaw"), or both, or cite to the correct portions of the record. Accordingly, contrary to its preferred practice, the Court shall in some instances cite directly to the exhibits on which the parties rely in their briefing rather than to their statements of material facts.

Plaintiff, who is African–American, was employed as a Special Education teacher at McKinley beginning in 2005. Def.'s Stmt. ¶ 1. In her capacity as a Special Education teacher, Plaintiff worked with high functioning autistic students. Def.'s Stmt. ¶ 2. At the beginning of the 2011–2012 school year, Plaintiff was transferred to Shaw as a continuing special education teacher. Def. Stmt. ¶ 10. Plaintiff was informed that the autism

program at McKinley was changing and that Shaw needed a special education teacher. Def.'s Stmt. ¶¶ 9, 10, 11. At Shaw, Plaintiff was assigned to teach a self-contained class of intellectually disabled students. Def.'s Stmt. ¶ 13. She worked there until her employment was terminated on August 8, 2013. Def.'s Stmt. ¶ 42.

1. Plaintiff's Time at McKinley

During her time at McKinley, Plaintiff made complaints about the school's alleged failure to provide special education students with required services or accommodations that fulfilled their individualized education programs. Def.'s Reply ¶ 4. More specifically, Plaintiff raised complaints regarding: inappropriate class sizes and groupings of students; not being able to obtain resources, including textbooks and classroom materials, and the support needed to teach effectively; and inadequate working conditions, including operating out of a classroom in the girl's locker room adjacent to the school's theater. Def.'s Reply ¶¶ 4, 5. Plaintiff claimed that she was denied certain assistive technology devices, a white board and textbooks that she needed for her students. Def.'s Stmt. ¶ 23. Plaintiff admitted however that she did not know what [resources and support] other [teachers] requested or received at other schools. Def.'s Stmt. ¶ 53. In fact, when asked whether the services were being provided at other schools, Plaintiff testified that "[she couldn't] speak to that because [she] wasn't at those schools." Def.'s Stmt ¶ 52. Nor could Plaintiff speak to whether or not the purported lack of resources was due to budgetary constraints at the school. Def.'s Reply ¶ 30; see Def.'s Mot., Ex. 4 (Pl.'s April 4, 2016 Dep.) at 53:2–12.

Plaintiff also complained about not being able to participate in certain training programs. Def.'s Reply ¶ 6. Plaintiff testified that she believed there was a racial element to the decision regarding who would receive training. See Pl.'s Mot., Ex. A (Pl.'s Dec. 22, 2015 Dep. at 126:1–126:8, 131:1–132:10, 133:5–134:5, 134:21–136:5, 136:20–137:7.)⁵ Plaintiff did not however know whether only one teacher received the training that she was allegedly denied, and she did not know whether other black teachers were trained. See Def's Mot., Exhibit 1 (Pl.'s Dec. 22, 2015 Dep.) at 121:12–123:14.⁶ According to Plaintiff, "the only reason why [she knew the [white] teacher received the training] [was] because [she] had regular conversations with her." See Ex. A, Pl.'s Dep. at 125:11–20. Plaintiff's allegations that the denial of training was racially motivated is unsupported by Plaintiff's own statements, which are inconclusive as to who received training.

Similarly, Plaintiff noted "different patterns of treatment" with regard to teachers in the autism

cluster program when the teachers attended meetings, but she was unable to identify the schools or teachers. Def.'s Stmt. ¶ 19. Nor did Plaintiff know the Individualized Education Program ("IEPs") of the students of the Caucasian teachers, and admittedly, all she knew was from what she saw at the meetings that took place and conversations she had with unidentified minority teachers. Def.'s Stmt. ¶¶ 20, 21. On November 17, 2010, at a meeting with Colleen Koval, the citywide head of DCPS's autism program, Ms. Koval threatened to have Plaintiff "written up." Ex. 1's Dep. at 60:4–60:22 (where Plaintiff states that Ms. Koval threatened to write her up for a "task [that] wasn't completed in an electronic database"); Def.'s Mot., Ex. 2 (May 16, 2014 Amended Charge of Discrimination) at 1. On November 23, 2010, Plaintiff received a written reprimand by McKinley's Principal, David Pinder. Def.'s Reply ¶ 3; Def.'s Stmt. ¶ 33; Ex. 1 at 60:4–9. When asked whether the reprimand was the result of her raising concerns about lack of resources, Plaintiff testified that "I don't know why [Ms. Koval]—I can't speak to why it was influenced, I...