                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA


BURLEY A. SANDERS,                             )
                                               )
                     Plaintiff,                )
                                               )
                v.                             )
                                               )      Civ. Action No. 14-0829 (ESH)
METROPOLITAN POLICE                            )
DEPARTMENT,1                                   )
                                               )
              Defendant.                       )
_________________________________              )


                                     MEMORANDUM OPINION

         In August 2010, plaintiff was convicted of simple assault following a bench trial in the

Superior Court of the District of Columbia. (See United States v. Sanders, 2010 CMD 006551

(D.C. Super. Ct. Aug. 23, 2010.) The misdemeanor conviction resulted from an encounter

between plaintiff, then a lieutenant in the District of Columbia Metropolitan Police Department

(“MPD”), and a female sergeant, both of whom were assigned to MPD’s Fifth District.

Following internal proceedings, MPD fired plaintiff on July 1, 2011, after 23 years of

employment. (See Compl. at 1.) Plaintiff filed this lawsuit in May 2014 upon learning “that the

District of Columbia EEOC had adopted [MPD’s] findings in relation to the termination[.]” (Id.

at 1.)

         Pending is the District of Columbia’s Motion to Dismiss or in the Alternative Motion for

Summary Judgment (ECF No. 9.) Because plaintiff has not successfully rebutted MPD’s




1
    Since the Metropolitan Police Department cannot be sued in its own name, see McRae v.
Olive, 368 F. Supp. 2d 91, 94 (D.D.C. 2005), the District of Columbia is hereby substituted as
the proper defendant.
legitimate non-discriminatory reasons for his termination, the Court will grant summary

judgment to the District on the federal claim and enter judgment accordingly.2

                                         BACKGROUND

       The undisputed facts are as follows. On February 1, 2011, in response to plaintiff’s

simple assault conviction, defendant served plaintiff with a notice of proposal to terminate his

employment. On April 7, 2011, plaintiff appeared with counsel for a hearing before the

Department’s Adverse Action Panel and pled guilty to four charges. Three of the charges related

directly to plaintiff’s arrest and conviction, including his “providing questionable testimony”

during his bench trial. A fourth charge alleged that plaintiff had provided “a false account of

events involving the female subordinate” during the Department’s investigation. (Decl. of

Michael I. Eldridge ¶¶ 7-8, ECF No. 9-3.) The Panel “unanimously determined” that plaintiff

was guilty of the charges and “further determined that [he had] exercised poor judgment as a

supervisor and manager.” (Id. ¶¶ 9-10.) The Panel also found that due to “the seriousness of the

crime, which was compounded by [plaintiff’s] false statements to the Court, there would be a

significant risk to the Department to allow [him] to have contact with MPD members.” (Id. ¶

11.) Consequently, the Panel concluded that plaintiff “could not be rehabilitated and termination

was the appropriate penalty.” (Id. ¶ 12.)

       In his appeal to the Chief of Police, plaintiff argued that officers convicted of drunk

driving offenses were “given stiff suspensions, but permitted to retain their positions.” (Id. ¶ 14.)

In affirming the termination decision in June 2011, the Chief of Police found such convictions

“not equivalent” to the sexual assault charges lodged against plaintiff and the ensuing conviction



2
    Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental jurisdiction
over any common law claims or claims arising under District of Columbia law.


                                                 2
“of a crime which was also an incident of sexual harassment that involved physical touching[.]”

(Id. ¶ 15.) The Chief further determined that as a lieutenant, plaintiff was “considered an

‘official’ of the Department . . . held to a higher level of conduct than rank-and-file members,”

such as “the victim of Sanders’ assault.” (Id. ¶¶ 16-17.)

       On January 22, 2013, The District of Columbia Office of Human Rights (“OHR”) issued

a Letter of Determination finding after an investigation that there was “no probable cause to

believe [MPD] subjected [plaintiff] to discrimination based on his race . . . when [MPD]

allegedly terminated [plaintiff’s] employment and did not terminate a [white] employee for

similar violations of [MPD’s] policies.” (Def.’s Ex. C, ECF No. 9-3.)

                                            ANALYSIS

I. LEGAL STANDARD

       A motion for summary judgment shall be granted “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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “An

issue is ‘genuine’ if the ‘evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’ ” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson,

477 U.S. at 248). In determining whether a genuine issue of material fact exists, a court must

view the evidence in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C.

Cir. 2009) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)). Plaintiff's

opposition, however, must consist of more than mere unsupported allegations or denials and

must be supported by affidavits or other competent evidence setting forth “specific facts showing

that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).



                                                  3
II. LEGAL FRAMEWORK

        Although the complaint does not specifically state a basis for federal court jurisdiction,

the Court accepts from plaintiff’s references to EEOC proceedings, his allegations of unequal

treatment in comparison with white officers, and the OHR documents defendant has supplied

that he, a black man, is proceeding under Title VII of the Civil Rights Act, which proscribes

employment discrimination on the basis of race. See 42 U.S.C. § 2000e-2(a); Haines v. Kerner,

404 U.S. 519, 520 (1972) (requiring liberal construction of pro se filings); Richardson v. U.S.,

193 F.3d 545, 548 (D.C. Cir. 1999) (absent any indication of prejudice to the defendant, a court

should read “all of the plaintiff's [pro se] filings together”).

        In the absence of direct evidence of discrimination, as here, Title VII claims are assessed

under a burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-03 (1973). Pursuant to that framework, a 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, 253 (1981). A plaintiff must show 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. Wiley v. Glassman, 511 F.3d 151,

155 (D.C. Cir. 2007). Once a plaintiff has made a prima facie case, “the burden shifts to the

defendant ‘to articulate some legitimate, nondiscriminatory reason for the [challenged

employment action].’ ” Tex. Dep't of Cmty. Affairs, 450 U.S. at 253 (quoting McDonnell

Douglas, 411 U.S. at 802). Once an employer satisfies its burden, the McDonnell Douglas

burden-shifting framework disappears, and a court must simply determine whether the plaintiff

has put forward enough evidence to defeat the proffer and support a finding of discrimination.



                                                    4
Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007); see also Brady v. Off. of the Sergeant at

Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (“[W]here an employee has suffered an adverse

employment action and an employer has asserted a legitimate, non-discriminatory reason for the

decision, the district court need not-and should not-decide whether the plaintiff actually made

out a prima facie case under McDonnell Douglas.” ) (emphasis in original). Instead, when

deciding the employer's motion for summary judgment, the district court “must resolve one

central question: Has the employee 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 employee on the basis of race . . . .?” Id.

       Pretext of discrimination may be established by showing either “that a discriminatory

reason more likely motivated the employer or . . . that the employer's proffered explanation is

unworthy of credence.” Tex. Dep't of Cmty. Affairs, 450 U.S. at 256. Courts, however, “may not

‘second-guess an employer's personnel decision absent demonstrably discriminatory motive.’ ”

Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996)

(quoting Milton v. Weinberger, 696 F. 2d 94, 100 (D.C. Cir. 1982)).

III. DEFENDANT’S REASONS FOR PLAINTIFF’S TERMINATION

       Plaintiff does not seriously dispute that he was terminated for legitimate, non-

discriminatory reasons. Indeed, he admits that he “could not reasonably have pleaded innocent

to being arrested, being convicted of a crime or negatively affecting the reputation of the

agency.” (Pl.’s Opp’n at 1, ECF No. 14.) Plaintiff argues instead that while he “may be the only

official convicted of assaulting a subordinate . . ., [he] would not be the only member of the

MPDC with a misdemeanor criminal conviction.” (Id. at 2.) Thus, the question becomes

whether plaintiff has offered sufficient rebuttal evidence to overcome defendant’s explanation.



                                                 5
        Considering plaintiff’s comparisons as an attempt to support pretext (see Compl. at 1-2)

(listing four examples), the Court must conclude that they are insufficient for a reasonable jury to

find or infer discrimination. Defendant disputes plaintiff’s comparisons and argues that the

white officers who committed assaults and were disciplined but not terminated were not

comparable to plaintiff. (See Def.’s Mem. of P. & A. at 7-8.) The record supports this argument.

        Plaintiff contends that like the white officers, his conduct amounted to simple assault.

Specifically, plaintiff alleges that he was convicted of simple assault “for grabbing the victim’s

arm,” as opposed to a crime with “sexual overtones.” (Compl. at 1.) But defendant has

produced portions of the transcript of plaintiff’s trial that directly contradict plaintiff’s

characterization of the offending conduct. (See Def.’s Facts ¶¶ 4-5) (Court finding “contact

between [plaintiff’s] groin and [the victim’s] buttocks” satisfied “unwelcome touching” element

of simple assault charge, that “sexual contact” had “certainly” occurred, but that evidence on

specific intent was insufficient to convict on misdemeanor sexual assault charge). Furthermore,

the Director of the Disciplinary Review Board avers that he reviewed the Board’s files for the

previous five years and had “not found any other instance where an official has been convicted

of assaulting a rank-and-file officer.” (Eldridge Decl. ¶ 18.)

        In addition, plaintiff admits that only one of the alleged incidents resulted in an arrest and

conviction, thereby rendering the other incidents incomparable. (See Compl. at 2.) Plaintiff

identifies a white officer who was convicted in Superior Court for assaulting “two Ethiopian

citizens over a parking issue.” (Id.) Plaintiff alleges that the officer received “a mere 30 day

suspension” because he was “deemed as being able to be rehabilitated.” (Id.) The OHR

determination reveals that the white officer was convicted of one count of simple assault and one

count of fleeing from the police. (Def.’s Ex. C at ECF p.14). Unlike plaintiff, the officer was a



                                                    6
“non-supervisor/manager” and was “off-duty and intoxicated when he was involved in an

altercation with two citizens.” (Id.) Like plaintiff, the officer was served with notice of a

proposal to terminate his employment but the Adverse Action Panel “determined that [the

officer] was under the influence of alcohol and therefore subject to rehabilitation.” (Id. at 15).

The Panel’s decision about the white officer’s conduct appears consistent with MPD policy as

evidenced by the Chief of Police’s response to plaintiff’s claim of unequal treatment. According

to the OHR determination, the Chief of Police “indicated that the Department approaches

convictions for DUI or DWI differently, since in many instances, the member may be an

alcoholic. Alcoholism is recognized as a disease which requires treatment[,] [whereas] violation

of EEO laws such as the incident of sexual harassment involving physical touching in the first

offense penalty [sic] can result in termination.” (Id. at 14.)

       The Court finds that no reasonable jury could find for plaintiff on the overwhelming

evidence differentiating his circumstances from those of the convicted white officer. See

Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (“A plaintiff must [] demonstrate that all

of the relevant aspects of [the] employment situation were nearly identical” and that he and the

alleged similarly situated employee “were charged with offenses of comparable seriousness.”)

(citations and internal quotation marks omitted). Nor, upon considering plaintiff’s contradictory

statements, could a reasonable jury find defendant’s explanation for terminating plaintiff

“unworthy of credence” or tainted by racial animus. Tex. Dep't of Cmty. Affairs, 450 U.S. at 256.

                                          CONCLUSION

       For the reasons stated above, the Court concludes that the District of Columbia is entitled

to judgment as a matter of law on plaintiff’s Title VII claim and declines to exercise




                                                  7
supplemental jurisdiction over any non-federal claims. A separate Order accompanies this

Memorandum Opinion.

                                                  /s/ Ellen Segal Huvelle
                                                  ELLEN SEGAL HUVELLE
                                                  United States District Judge


Date: February 10, 2015




                                              8
