                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL
EMPLOYEES LOCAL 2401, et al.,

        Plaintiffs,
                                                           Civil Action No. 09-CV-1804 (BJR)
                 v.
                                                           ORDER GRANTING DEFENDANT’S
                                                           MOTION FOR SUMMARY JUDGMENT
DISTRICT OF COLUMBIA,

        Defendant.




                                        I.      INTRODUCTION

        This case concerns allegations of age and race discrimination against the District of

Columbia (hereinafter “Defendant” or “the District”) in connection with a reduction-in-force

(“RIF”) at the District of Columbia Department of Health Care Finance (hereinafter “DHCF”), as

well as the hiring of personnel into newly created positions at DHCF after the RIF. Plaintiffs—

African-American DHCF employees whose positions were eliminated in the RIF and who were

not rehired into newly created positions—allege that there was intentional age-and race-based

discrimination in both the RIF and the rehiring process, in violation of 42 U.S.C. § 1983, 42

U.S.C. § 1981, and the District of Columbia Human Rights Act (“DCHRA”). 1 See generally

Third Amended Complaint (Dkt. No. 34) (“Comp.”). Before the Court is Defendant’s motion for

summary judgment filed pursuant to Federal Rule of Civil Procedure 56. Having reviewed the

motion, opposition, and reply thereto, the entire record in the case, and the applicable law, the

Court GRANTS Defendant’s motion for summary judgment.
1
         Local 2401 of the American Federation of State County and Municipal Employees, the union that
represents the individual Plaintiffs, is also a Plaintiff in this action.

                                                       1
                                    II.      FACTUAL BACKGROUND 2

         Prior to the creation of DHCF, Medicaid and the D.C. Healthcare Alliance—which

together provide health care services for one in three District citizens—were primarily

administered by the Medical Assistance Administration (“MAA”) within the D.C. Department of

Health. See Defendant’s Statement of Material Facts Not in Dispute (Dkt. No. 98) (hereinafter

“Def.’s St. Facts”) at ¶ 1. It is undisputed that under MAA, the administration of health care

services was frequently mishandled, resulting in significant over and under payments on service

claims, as well as under-reimbursement from federal programs. Id. at ¶ 2. Accordingly, in 2007,

the Mayor of the District of Columbia signed into law the Department of Health Care Finance

Establishment Act of 2007 to create a new agency—DHCF—to centralize and improve the

administration of health care services in the District. Id. at ¶ 3.

         Thereafter, the District retained a team of consultants from the George Washington

University (“GW”) School of Public Health and Health Services to assist the District in

establishing DHCF and transitioning the services from MAA to DHCF. Id. at ¶¶ 6-7. Ultimately,

a Transition Plan was developed that structured DHCF along “functional lines” meant to

2
          Unless otherwise noted, the factual allegations set forth herein are drawn from Defendant’s Statement of
Material Facts Not in Dispute (Dkt. No. 98-2) (hereinafter “Def.’s St. Facts”). In this Statement, Defendant sets forth
in 63 paragraphs what it alleges to be the material undisputed facts in this case. Id. Plaintiffs do not challenge the
factual allegations raised in 38 of the 63 paragraphs. See Plaintiff’s [sic] Statement of Material Facts in Dispute
(Dkt. No. 100-1) (hereinafter “Pls.’ St. Facts”). Accordingly, the factual allegations contained in those 38 paragraphs
are deemed admitted. See, e.g., Sloan v. Urban Title Services, Inc., 689 F. Supp. 2d 123, 127 (D.D.C. 2012)
(deeming admitted any facts identified by defendant that were not disputed by plaintiff). Plaintiffs did challenge the
factual allegations in 25 of the 63 paragraphs. However, significant issues exist with respect to the challenges raised
by Plaintiffs. Initially, while Plaintiffs contend that the factual allegations in paragraphs 42-43, 45, and 51 are in
dispute, Plaintiffs fail to support their challenge to these allegations with any citation to the record. Accordingly, the
factual allegations in paragraphs 42-43, 45, and 51 are deemed admitted. Id. at 127. As to Plaintiffs’ remaining
challenges, the Court notes that a significant number of the countervailing “facts” to which Plaintiffs direct this
Court’s attention: (1) are not supported by the evidence to which Plaintiffs cite, (2) do not address the factual
allegation raised by Defendant, and/or (3) do not create a dispute of fact. Compare, .e.g., Def.’s St. Facts ¶ 19
(“Managers and human resources personnel at DHCF as well as at the Department of Health were given input into
position descriptions for new positions at the agency.”) with Pls.’ St. Facts ¶ 19 (“Despite management and human
resources personnel input, the District failed to comply [sic] its personnel rules, including recertification,
reclassification and the District’s anti-discrimination laws.”). In such instances, the Court deems Defendant’s
proffered facts admitted. Sloan, 689 F. Supp. 2d at 127.

                                                            2
improve the quality and availability of health care to District citizens, as well as “correct the

financial and audit challenges” facing the District. Id. at ¶¶ 11, 13. After DHCF’s organizational

structure was established, the GW consultants developed an organizational chart to implement

the changes envisioned by the Transition Plan. Id. at ¶ 14.

        DHCF’s organizational structure included new positions that had not previously existed

at MAA and eliminated some positions that had existed within MAA. Id. at ¶¶ 15-17, 31-32.

Plaintiffs do not dispute that the GW consultants were primary responsible for drafting the job

descriptions for the newly created positions in DHCF. Id. Nor do Plaintiffs dispute that, at the

time that the determination was made as to which positions would be eliminated in the RIF, the

GW consulting team members did not know the identities of the employees who held those

positions. Id. at ¶ 32.

        DHCF assumed MAA’s responsibilities on October 1, 2008 and thereafter the RIF was

implemented. Id. at ¶¶ 22, 29-30. Seventy-nine positions were eliminated in conjunction with

the RIF and sixty-two positions were created. Id. at ¶¶ 29-30. It is undisputed that agency

employment records demonstrate that the race and age of DHCF’s workforce before and after the

RIF remained the same. Id. at ¶ 37. More particularly, before the RIF, 47.58% of DHCF’s

employees self-identified as African-American; after the RIF, 47.58% of DHCF’s employees

self-identified as African-American. Id. Likewise, before the RIF, 46 was the median age of

DHCF’s employees; after the RIF, 46 was the median age of DHCF’s employees. Id.

        In addition, DHCF notified its employees of the impending RIF one month before it

implemented the RIF. Id. at ¶ 33. The employees whose positions were slated for elimination

were encouraged to apply for one of the newly created positions and were given priority in hiring

for those positions. Id. at ¶ 38-39. Forty-seven of the seventy-nine employees whose positions



                                                  3
were eliminated by the RIF were rehired into new positions at DHCF. Id. at ¶ 41. Plaintiffs are

seventeen of the thirty-two former DHCF employees whose positions were terminated, but who

were not rehired into any of the newly created positions. 3 It is undisputed that five of the

seventeen Plaintiffs did not apply for a new position within DHCF or, in the case of one Plaintiff,

applied but then withdrew from consideration for the position. Id. at ¶ 47. This lawsuit followed

on September 21, 2009. Dkt. No. 1.

                                              III.     DISCUSSION

         A.       Summary Judgment Legal Standard

          “The court shall grant summary judgment if 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The mere

existence of any factual dispute will not defeat summary judgment; “the requirement is that there

be no genuine issue of material fact.” Olatunji v. District of Columbia, 958 F. Supp. 2d 27, 29

(D.D.C. 2013) (quoting Anderson, 477 U.S. at 247–48) (emphasis in original). A fact is material

if, under the applicable law, it could affect the outcome of the case. Olatunji, 958 F. Supp. 2d at

29. A dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. (quoting Anderson, 477 U.S. at 247-48). Because “[c]redibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge,” the “evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.” Id. at 29-30 (quoting Anderson, 477

U.S. at 255). However, the nonmoving party must establish more than “the existence of a

scintilla of evidence” in support of its position, Id. at 30, and the inferences drawn from the


3
        Originally there were thirty individual Plaintiffs in this lawsuit. However, thirteen of the original Plaintiffs
were dismissed from the case for failure to respond to discovery requests. See Dkt. No. 75.

                                                            4
evidence “must be reasonably probable and based on more than mere speculation.” Rogers Corp.

v. E.P.A., 275 F.3d 1096, 1103 (D.C. Cir.2002) (citations omitted). In addition, the nonmoving

party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164

F.3d 671, 675 (D.C. Cir. 1999). He must present specific facts that would enable a reasonable

jury to find in his favor. Id. If the evidence presented is “merely colorable, or is not significantly

probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations

omitted).

        B.      Plaintiffs’ Claims

        As a preliminary matter, this Court notes that Plaintiffs’ opposition to Defendant’s

summary judgment motion largely consists of conclusory statements, with little citation to

evidence in the record. Indeed, rather than refer this Court to evidence in the record, Plaintiffs

cite to their own pleadings. It is black letter law that Plaintiffs may not rest upon the allegations

asserted in their pleadings, but must instead “present affirmative evidence in order to defeat a

properly supported motion for summary judgment.” Anderson, 477 U.S. at 257; District Intown

Props., Ltd. P’ship v. District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court

must assume the truth of all statements proffered by the non-movant except for conclusionary

statements lacking any factual basis in the record.”).

        With this in mind, the Court now turns to the merits of Plaintiffs’ arguments. As

discussed above, Plaintiffs bring three claims for relief. First, Plaintiffs filed an equal protection

claim under 42 U.S.C. § 1983 based on the District’s alleged age-and-race-based discrimination.

Specifically, Plaintiffs allege that the District violated their right to the equal protection of the

laws as enshrined in the Fourteenth Amendment by “illegally reorganize[ing] DHCF in such a

way as to selectively terminate more senior African-American employees while simultaneously



                                                   5
protecting and excluding less senior, inexperienced, predominately Caucasian employees” from

the RIF. Third Am. Comp. at ¶ 29. Plaintiffs further charge that the District “reclassifi[ed] [] jobs

and grade levels” to effectively disqualify “incumbent African-American employee Plaintiffs

from consideration for so called new (redefined) positions, resulting in their constructive

discharge and exclusion from ‘newly created’ positions.” Id. at ¶ 30.

       Second, Plaintiff filed a race-based discrimination claim under 42 U.S.C. § 1981 based

on the District’s alleged interference with the collective bargaining agreement between the

District and Plaintiffs’ union, AFSCME. With respect to this claim, Plaintiffs allege that the

District “acted pursuant to a formally adopted policy” to implement “a racially and age biased

‘realignment’ plan” that “reclassifi[ed] jobs, diminish[ed]/lower[ed] Plaintiffs’ ratings and

qualifications or skills, in order to effectively eliminate their positions and/or preclude their

rehiring.” Id. at ¶ 36. Plaintiffs charge that the District’s actions “impeded Plaintiffs’ enjoyment

and protections articulated in the terms and conditions of the [collective bargaining agreement].”

Id. at ¶ 37. Lastly, Plaintiff charge that the District violated the D.C. Human Rights Act, D.C.

Code § 2-1401 et seq. (hereinafter “DCHRA”) because it “acted in violation of D.C. laws of [sic]

governing Reductions-in-Force.” Id. at ¶ 41.

       The familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), applies to § 1981, § 1983, and DCHRA cases where, as here, a plaintiff

presents only circumstantial evidence that discrimination caused an adverse employment action. 4

Royall v. Nat’l Ass’n of Letter Carriers, AFL–CIO, 548 F.3d 137, 144 (D.C. Cir. 2008) (applying

the McDonnell Douglas framework to § 1981 claims); Jo v. Dist. of Columbia, 582 F. Supp. 2d

51, 60 (D.D.C. 2008) (§ 1983 case applying McDonnell Douglas); Paquin v. Federal Nat.


4
       Plaintiffs acknowledge that “there is no direct evidence per se of discrimination.” Pls.’ St. Facts at ¶¶ 56-
59.

                                                         6
Mortg. Ass’n, 119 F.3d 23, 27 (D.C. Cir. 1997) (applying McDonnell Douglas to a DCHRA

case). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of

discrimination by showing that “(1) [he] is a member of a protected class; (2) [he] suffered an

adverse employment action; and (3) the unfavorable action gives rise to an inference of

discrimination.” Chappell–Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006). The burden

then shifts to the employer to articulate a “legitimate, nondiscriminatory” justification for the

adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Where an employer offers “clear and reasonably specific” nondiscriminatory reasons for the

adverse employment action, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258

(1981), the court “should not decide whether the plaintiff has made out a prima facie case,” and

should instead “proceed[ ] to the ultimate issue of [discrimination] vel non.” Jones v. Bernanke,

557 F.3d 670, 678 (D.C. Cir. 2009). Finally, where a plaintiff can establish a predicate

constitutional violation under § 1983, a municipality such as the Defendant in this case is liable

only for “action pursuant to official municipal policy.” Triplett v. Dist. of Columbia, 108 F.3d

1450, 1453 (D.C. Cir.1997) (citing Monell v. New York City Dept. of Social Services, 436 U.S.

658, 691 (1978)).

       Here, Defendant does not challenge whether Plaintiffs have established a prima facie case

for discrimination; rather, it offers a legitimate, non-discriminatory reason for the adverse

employment actions: as Defendant explains, MAA’s mismanagement of the District’s local and

federal public health service programs cost the District “millions of dollars” and resulted in

negative audit findings that “jeopardized the city’s bond rating.” Def.’s Mot. at 3. DHCF was

created to “fix the problems and shortcomings of the existent system,” which included

terminating seventy-nine positions and creating sixty-two new positions. Id. at 4-5. Defendant



                                                  7
points out that the reason for the realignment is laid out in “exhaustive detail in the Mayor’s

Transition Plan,” which was submitted to the Council for the District of Columbia for approval

more than a year before the RIF took place. Id. at 13. What is more, the Defendant argues, the

decision as to which positions were eliminated in the RIF was made by many individuals from

multiple District agencies, as well as the GW consulting team. These decision-makers,

Defendant contends, did not know which employees were in the positions slated for elimination.

In other words, according to Defendant, the determination was made without consideration of

race or age.

        Defendant further argues that its lack of discriminatory intent in conducting the RIF is

underscored by its emphasis on rehiring the individuals who were displaced as part of the RIF.

“Employees subject to the RIF were given a list of vacancies, information on applying, a training

session, and ‘at least 8 hours of administrative leave to work on resumes and applications.’” Id.

at 15. In addition, the displaced employees were given priority consideration for reemployment

at DHCF. Id. What is more, Defendant claims, DHCF chose to post internally (exclusively)

forty-four of the sixty-two new positions created, thereby increasing the likelihood that the

displaced employees would be rehired. Id. This led to almost 60% of the displaced employees

being rehired within DHCF with little or no break in employment. Id. Defendant alleges that it

would likely have been a greater percentage, but 20% of the displaced employees (including five

of the 17 Plaintiffs in this case) chose not to apply for a new position. Id. at 15, 16 n. 6. Finally,

the District points out that it is undisputed there was no appreciable change in the demographics

of DHCF’s workforce after the RIF and rehiring occurred (noting that the median age of DHCF

employees was 46 before and after the RIF, and the number of DHCF employees self-identifying

as “Black, not of Hispanic origin” was 47.58% before and after the RIF). Id. at 15-16.



                                                   8
       Plaintiffs concede that the District’s healthcare system was poorly administered under

MAA. Nevertheless, they charge that the District’s asserted nondiscriminatory reason for

creating DHCF is pretextual, and that the true reason that the District implemented the RIF and

created new positions was so that it could get rid of “incumbent and older African American

employees” and replace them with “younger, inexperienced Caucasian” employees. Pls’ Opp. at

1-2. Plaintiffs direct this Court’s attention to the following “facts” that they allege are both

material and in dispute, in support of their claim that the District’s proffered reason is pretext for

discrimination:

       1. The District only superficially changed job descriptions so that it could list them as
          “new positions”;

       2. The District failed to provide “incumbent employees” with an opportunity to review
          and appeal the job description and classification of the new positions;

       3. “[P]reserve[ing] the employment of [DHCF’s] existing employees” was not a priority
          for DHCF;

       4. Human Resources at DHCF, not the GW consultants, had the primarily responsibility
          for drafting the job descriptions for the new positions;

       5. The GW consultants did not determine which positions would be eliminated in the
          RIF;

       6. GW consultant team members were hired into the newly created DHCF positions;

       7. DHCF intentionally omitted approximately 17 employees from its “retention
          register”;

       8. Plaintiff Eric Walcott was told at one of DHCF’s job fairs that some of the new
          positions, including the one to which Mr. Walcott was applying, had already been
          filled prior to the job fair;

       9. Mr. Walcott was not included on DHCF’s “Displaced Employee and Preferred List,”
          meaning he was not given priority treatment for hiring into the new positions;

       10. Another Plaintiff, Clement Eyo, applied but was not selected for one of the new
           positions; instead, the position went to a lesser qualified candidate; and



                                                   9
         11. The individuals who were hired into the new positions were hired because they are
             Caucasian and friends of the DHCF Director.

A number of these alleged factual disputes can be dispensed with quickly. For instance, in

number 4 above, Plaintiffs dispute that the GW consultants had primary responsibility for

drafting the job descriptions for the newly created positions; yet, later in their opposition,

Plaintiffs concede that the “GW Consultants were primarily responsible for creating the new

positions for DHCF.” Pls.’ Opp. at 12. Accordingly, this is not a disputed fact. 5

         In addition, several of the above alleged disputes of fact are not supported by citations to

the record. For instance, in number 6, Plaintiffs allege that GW consultant team members were

hired into the newly created DHCF positions. As evidence of this, Plaintiffs allege that Jessica

Schubel, one of the GW consultants, “began working at DHCF in 2009.” Pls.’ Opp. at 12 (citing

Schubel deposition transcript (“Schubel Tr.” at 13). However, Plaintiffs’ citation to the record in

support of this allegation does not support Plaintiffs’ claim that Ms. Schubel worked at DHCF,

let alone that she was hired into one of the newly created positions. Instead, the record simply

states that Ms. Schubel was hired by “the District of Columbia.” Schubel Tr. at 13. Moreover,

Plaintiffs cite to no evidence in the record demonstrating that other GW consultants were hired

by DHCF into the newly created positions.



5
  Defendant also alleges that the GW consultants had the “primary responsibility for … determining what positions
within DHCF were unnecessary.” Def.’s Mot. at 4. Plaintiffs dispute this, arguing that it was DHCF, not the GW
consultants who determined which positions would be eliminated in the RIF. In support of their claim that DHCF
determined which positions would be eliminated, Plaintiffs point out that the head of the GW consulting team,
Patricia MacTaggert, testified that “she did not consider existing jobs” within DHCF as part of the GW team’s
review of the agency’s organization. In Plaintiffs’ view, this means that the GW consultants could not have had
primary responsibility for determining which positions would be eliminated. Plaintiffs mischaracterize Ms.
MacTaggert’s testimony. She did not testify that she did not consider “existing jobs” within DHCF, she testified that
she did not “look at [current] job descriptions,” a different statement entirely. See Patricia MacTaggert deposition
(“MacTaggert Tr.”) at 22. However, the Court also notes that Defendant did not provide evidentiary support for its
contention that the GW consultants had primary responsibility for determining which positions would be eliminated.
Defendant cites Ms. MacTaggert’s affidavit in support of its contention; Ms. MacTaggert’s affidavit is silent on this
issue. As such, the Court will disregard Defendant’s claim that the GW consultants had primary responsibility for
deciding which positions would be eliminated in the RIF.

                                                         10
         Similarly, Plaintiffs allege that DHCF intentionally omitted approximately 17 employees

from its “retention register,” (alleged fact number 7 above), declaring in an incomplete sentence:

“Defendant’s intentional omission of approximately seventeen (17) or more similarly-situated

Caucasian employees hired within the one year immediately preceding the Reduction in Force

(“RIF”).” Pls.’ Opp. at 13. Not only do Plaintiffs fail to explain the significance of this alleged

fact, they fail to cite to any evidence in the record in support of this allegation. 6 As such,

Plaintiffs’ alleged fact numbers 4, 6, and 7 do not constitute a dispute of material fact that

prohibit summary judgment.

         The Court will now address the remainder of the “disputed facts” to which Plaintiffs cite

in support of their claim that Defendant’s proffered reason for creating DHCF was merely

pretext for discrimination. First, Plaintiffs claim that the job descriptions for the newly created

positions were only “superficially” revised from the descriptions of the eliminated positions.

Plaintiffs argue that this is evidence that Defendant created DHCF simply so that it could create

the new positions, thereby “circumvent[ing] the inconvenient obstacle of terminating tenured

employees for cause.” Pls.’ Opp. at 9. As evidence of this, Plaintiffs point to the deposition

testimony of Lewis Norman, a Human Resources Specialist with the District and the Defendant’s

designated Rule 30(b)(6) witness. However, this Court has carefully reviewed those portions of

Mr. Norman’s deposition transcript to which Plaintiffs cite, and there is nothing in the cited

evidence that even remotely suggests that the job descriptions were modified in order to further a

discriminatory agenda on Defendant’s part. 7 Next, Plaintiffs argue that DHCF Director, Julie

6
          Plaintiffs list the 17 individuals whom they believe were excluded from this “retention register,” and claim
that the names of the 17 individuals was provided in a letter from Plaintiffs’ union. However, the letter is not
included in the record or otherwise provided for this Court’s review. See Pls.’s Opp. at 13, fn. 2.
7
          What is more, Plaintiffs failed to attach complete portions of the cited transcript as an exhibit. For instance,
Plaintiffs refer this Court to a response that Mr. Norman gave on page 152 of his deposition transcript, but fail to
attach the complete response. See Lewis Norman Deposition Transcript, Dkt. No. 100 at 9, Ex. 9 at p. 152 (response
cutting off at mid-sentence).

                                                           11
Hudman, admitted that she “was not concerned with preserving the employment of current

employees in the reorganization” and this admission, according to Plaintiffs, is evidence that

Defendant’s proffered reason is pretext for discrimination. Pls’ Opp. at 10. However, once again,

this Court’s review of the cited portion of Ms. Hudman’s deposition transcript reveals no facts

upon which a reasonable jury could deduce that the RIF and subsequent rehiring was the result of

discriminatory intent. Id.

         Next Plaintiffs cite to the interrogatory responses of one Plaintiff, Mr. Walcott, as further

evidence that Defendant was motivated by discriminatory intent. Dkt. No. 100, Ex. 15. As a

preliminary matter, this Court notes that the interrogatory responses contain multiple unsworn,

out of court statements that were allegedly made by DHCF employees and that are offered for

the truth of the matter asserted. Plaintiffs have not identified any hearsay exception that would

allow the Court to consider these statements, much less carried their burden of showing that such

an exception applies. Nevertheless, even if this Court were to assume the veracity of such

statements, the statements, along with the remaining allegations in Mr. Walcott’s interrogatory

responses, are not sufficient to create a dispute of material fact.

         This is because nowhere in the interrogatory responses does Mr. Walcott even allege (let

alone cite to evidence in the record) that he was terminated and later not rehired because of his

race or age. 8 Instead, Mr. Walcott’s own interrogatory responses offer a nondiscriminatory

reason for why he was not rehired. Id. at 15 (noting that the co-worker who interviewed him for

the newly created position did not like him because a project had once been taken from the co-

worker and given to Mr. Walcott).




8
         At most, Mr. Walcott alleges that he told a co-worker that the “disproportionate impact of [the RIF] takes
on a racial overtone.” Id. at 13. This statement, without more, is not sufficient to raise a dispute of material fact.

                                                          12
       Mr. Walcott does allege in his interrogatory responses that he was not included on

DHCF’s Displaced Employee and Preferred List. Id. at 14. But, once again, Mr. Walcott does not

allege that this “oversight” was the result of discriminatory animus. Although failure to follow

procedures, as appears to be the case here, can be circumstantial evidence that an employer’s

stated explanation is pretextual, the employee must also provide sufficient evidence that the

offered explanation is pretext for discrimination. See Evans v. Sebelius, 716 F.3d 617, 623 (D.C.

Cir. 2013) (even when employee demonstrates that a hiring decision “was procedurally flawed,

… she must still provide sufficient evidence that the government’s proffered explanation is

pretext for racial discrimination”) (emphasis in original). Here, Mr. Walcott does not allege

discriminatory intent, and Plaintiffs have failed to cite to any evidence in the record that would

allow a reasonable jury to find that Mr. Walcott’s exclusion from the Displaced Employee and

Preferred List was anything other than a simple mistake.

       Lastly, Mr. Walcott alleges in his interrogatory responses that while he was at a DHCF

job fair, he was told by then-Director of the Medicaid Administration, Bob Maruca, that a

number of the newly created positions had already been filled “by a select group of people” who,

Mr. Walcott claims, had two things in common: they were (1) Caucasian, and (2) friends of the

DHCF Director. Dkt. No. 100, Ex. 15 at 12. Once again, this statement, without more, is

insufficient for a reasonable jury to conclude that the RIF and rehiring process was motivated by

race-and age-based discrimination. Plaintiffs have failed to provide any of the evidence

necessary for a jury to reach such a decision, namely: (1) Plaintiffs applied for the positions

offered at the job fair, (2) Plaintiffs were qualified for the positions; (3) who was hired into the

positions; (4) what the age and race is of those individuals; and (5) Plaintiffs were more qualified

for the positions than those individuals. In short, Mr. Walcott’s interrogatory responses contain



                                                  13
only his personal conclusions, conclusory allegations, bare assertions, and subjective beliefs.

They do not include any specific facts to support these conclusions, allegations, and beliefs, and

as such, do not create an issue of material fact.

        Next, Plaintiffs contend that Plaintiff Clement Eyo’s statements in an email to District

Human Resources Director Brender Gregory are evidence of discrimination. Specifically, in his

email, Mr. Eyo stated that he was denied a new position for which he applied because his name

was removed from the list of individuals being considered for the position and replaced with “the

name of the person [DHCF] intended to give the job to.” Dkt. No. 100, Ex. 16 at 2. However,

review of Mr. Eyo’s email shows that it is completely devoid of any suggestion that the RIF and

rehiring process was tainted by race- or age-based discrimination. Accordingly, Mr. Eyo’s email

is insufficient to raise a dispute of fact.

        Lastly, Plaintiffs cite to an email from Candice Young, a former HR Advisor in the

District’s Human Resources Office, dated January 2, 2010. Dkt. No. 100, Ex. 11. In the email,

Ms. Young accuses the Human Resource Office of hiring improprieties. Id. But, once again,

there are no allegations that the improprieties were motivated by race and/or age discrimination.

Id. Instead, Ms. Young specifically states that the improprieties were due to cronyism. Id. (“I

then stated that I would no longer have anything to do with bringing people on board just

because they were friends of the Director.”); (“Our current employees…were losing their jobs

because we wanted to hire friends of the administration.”). Even if the Court were to assume that

Ms. Young’s claims of cronyism are accurate, such statements do not create a dispute of fact as

to whether the RIF was motivated by race-and age-based discrimination. Cronyism, while

disfavored, is not illegal. See Barry v. Moran, 661 F.3d 696, 708 (1st Cir. 2011) (“[A]n

employment decision motivated by cronyism, not discrimination, would be ‘lawful, though



                                                    14
perhaps unsavory.’”) (quoting Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 587 (1st

Cir. 1999), abrogated on other grounds by Desert Palace v. Costa, 539 U.S. 90 (2003); Neal v.

Roche, 349 F.3d 1246, 1252 (10th Cir. 2003) (“[E]mployers are free to employ

nondiscriminatory criteria that are ‘unfair’ or even reprehensible, so long as they are not

discriminatory.”).

       Finally, the Court notes that Plaintiffs fail to address whatsoever the undisputed fact that

there is no difference—significant or otherwise—between the demographics of DHCF’s

workforce before and after the RIF. Def.’s St. Facts ¶ 37. As previously stated, the median age of

DHCF employees was 46 before the RIF and 46 after the RIF; the number of DHCF employees

self-identifying as “Black not of Hispanic origin” was 47.58% before the RIF and 47.58% after

the RIF. Id. Plaintiffs’ complete failure to address this issue—alone—is sufficient to warrant

summary judgment for Defendant. See Aliotta v. Bair, 614 F.3d 556, 565 (D.C. Cir. 2010)

(upholding an award of summary judgment because employees’ “statistics could not support an

inference of discrimination).

                                     IV.     CONCLUSION

       For the foregoing reasons, this Court HEREBY GRANTS Defendant’s Motion for

Summary Judgment (Dkt. No. 98). Plaintiffs’ claims are DISMISSED with prejudice.

       Dated this 26th day of March 2014.


                                                      A
                                                      Barbara Jacobs Rothstein
                                                      U.S. District Court Judge




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