                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

BEVERLY GURARA,                                   :
                                                  :
               Plaintiff,                         :     Civil Action No.:     10-1556 (RC)
                                                  :
               v.                                 :     Re Document No.: 23
                                                  :
DISTRICT OF COLUMBIA,                             :
                                                  :
               Defendant.                         :

                                  MEMORANDUM OPINION

              GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

                                      I. INTRODUCTION

       The plaintiff is a former employee of the District of Columbia. Her work record was not

ideal: by her own admission, she was repeatedly late, missed several days of work, and failed to

attend training sessions. One day, a co-worker noticed that her paper shredder was filled with

remnants of relevant work documents; when asked why this was so, Ms. Gurura lost her

composure, throwing a potted plant towards a co-worker and hurling invective which was heard

by all within earshot. She was so agitated that her employers called 911. Her employers took

progressive disciplinary measures, imposing two suspensions without pay for the missed days of

work and missed training and, after her outburst, terminated her employment. The plaintiff

brought suit against the District,1 claiming that the defendant’s acts were actually taken in

retaliation for a discrimination complaint that she had previously filed. But she has not




1
       The complaint also names the District of Columbia’s Department of Transportation, which is non
       sui juris and may not be sued. Plater v. D.C. Dep’t of Transp., 530 F. Supp. 2d 101, 102 n.1
       (D.D.C. 2008). The court dismissed the Department of Transportation from this suit in a Minute
       Order dated March 1, 2011.
submitted enough evidence to convince a reasonable jury of her claim. The court will therefore

grant the District’s motion for summary judgment.

          II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

        Beverly Gurara is a former employee of the District of Columbia’s Department of

Transportation (“DDOT”), where she worked as a staff assistant. In August 2007, for reasons

not fully explained by the parties, she filed a charge with the EEOC alleging that she had been

subjected to a hostile work environment.2 Over the next two years, her employer took three

actions that are relevant to the plaintiff’s case.

                      A. The Plaintiff’s Nine-Day Suspension (April 2008)

        In April 2008, the plaintiff was suspended without pay for nine days. Def.’s Mot. for

Summ. J. at 5 (“Def.’s Mot.”); Pl.’s Mot., Ex. 1 (“Pl.’s Aff.”) ¶ 7. The defendant alleges that

Ms. Gurara repeatedly failed to show up to work, claimed dubious medical excuses for her

absences, and failed to give timely notice of those absences. Def.’s Mot. at 5–6. The plaintiff

contends that she was entitled to take accumulated sick and annual leave, Pl.’s Aff. ¶ 7, though

the parties differ as to whether she properly obtained permission to use any such leave.

                     B. The Plaintiff’s 15-Day Suspension (December 2008)

        In December 2008, the DDOT gave Gurara notice that it planned to suspend her for

fifteen days without pay due to her poor attendance, tardiness, and missed training.3 The

defendant cited several specific instances of absenteeism. First, Gurara failed to attend a “City


2
        The plaintiff was placed on administrative leave in August 2007, but does not allege that this
        plays any part in her claim. Rather, she focuses on three events that took place between April
        2008 and June 2009. Pl.’s Opp’n at 1 (“Plaintiff agrees that the claims of retaliation are based on
        three adverse employment actions: (1) a nine-day suspension in 2008; (2) a fifteen day suspension
        in 2008; and (3) her termination from employment in 2009.”).
3
        The plaintiff appealed this decision internally; it was affirmed three years later. See Def.’s Mot.
        at 6, 11; id., Ex. 13.


                                                     2
Works training” on October 14–16, 2008, and a “snow training” that occurred in the same

month. Def.’s Mot. at 8–9. Additionally, she was late for work on October 21 and 22, and she

failed to show up at all on October 27 and October 28, 2008. Id. at 7, 10. Although the plaintiff

admits that the defendant is correct, she claims that others similarly failed to attend the City

Works training, and that she was unaware that her presence at the snow training was required.

Pl.’s Aff. ¶¶ 10, 11. She also claims that other employees were commonly late to work, and

those employees did not suffer similar consequences. Id.

                          C. The Plaintiff’s Termination (June 2009)

       In June 2009, Gurara entered a colleague’s office to find her paper shredder on his desk.

Def.’s Mot. at 13. The colleague—Francesco Pacifico, the DDOT’s Chief of Street and Bridge

Maintenance—states that he was “trying to figure out” why her shredder was filled with ribbons

of certain work documents. Id. She denied shredding any original documents, instead

maintaining that she had only shredded photocopies. Id. When Pacifico showed her slivers of

paper with original ink and highlighting, she responded, “[t]his is bulls--t. You’re accusing me,”

and asserted that the shredded documents were merely photocopied duplicates. Id. Gurara

returned to her desk and, in the presence of other employees, said, “[i]f I wanted to shred f---ing

[work order] tickets, I could have did that a year ago when they put me on this bulls--t [sic].” Id.

at 14–15. She began to curse and talk to herself, repeating, “I can’t believe this s--t.” Id. She

picked up the phone, saying: “I’m sick. I’m going crazy,” and “you need to come over here right

now” before slamming down the telephone. Id. She tossed the shredded tickets in the air and

stated, “f--- that s--t.” Id. at 15. Gurara then swiped various items from her desk, seized a flower

pot, dumped its dirt onto the floor, and catapulted the pot across the room (it narrowly missed a

coworker before landing). Id. Her coworkers called Pacifico, who arrived to see Gurara with

her head cradled in her hands. Id. Pacifico called 911. Id. When the ambulance arrived, Gurara
                                                  3
refused to speak with the medics and stormed out. Id. at 15. She was fired soon thereafter. Id.

The plaintiff does not contest this factual account except to insist that she never shredded any

original documents, only photocopies. Pl.’s Aff. ¶ 17.

       The plaintiff brought suit in September 2010, alleging three claims: (1) retaliation under

Title VII of the Civil Rights Act of 1964, (2) retaliation under the D.C. Human Rights Act, and

(3) age discrimination under the Age Discrimination in Employment Act. The defendant seeks

summary judgment on all three counts. In her opposition, the plaintiff indicated that she no

longer wishes to pursue Counts II and III of her claim. See Pl.’s Opp’n at 1 n.1.

                                         III. ANALYSIS

                   A. Legal Standard for a Motion for Summary Judgment

       Summary judgment may be granted when “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). A fact is “material” if it is capable of affecting the substantive outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if

sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving

party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

       The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The moving party bears the initial

responsibility of identifying those portions of the record which demonstrate the absence of any

genuine issue of material fact. Id. at 323; FED. R. CIV. P. 56(c)(1)(A) (noting that the movant

may cite to “depositions, documents, electronically stored information, affidavits or declarations,

. . . admissions, interrogatory answers, or other materials”). In response, the non-moving party



                                                  4
must similarly designate specific facts in the record that reveal a genuine dispute that is suitable

for trial. Celotex, 477 U.S. at 324.

       On a motion for summary judgment, the court must “eschew making credibility

determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007), and all underlying facts and inferences must be analyzed in the light most favorable to the

non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered

without any evidentiary support do not establish a genuine issue for trial. Greene v. Dalton, 164

F.3d 671, 675 (D.C. Cir. 1999).

                     B. Legal Standard for a Title VII Retaliation Claim

       Title VII prohibits an employer from retaliating against any employee who files a

discrimination charge against his or her employer. 42 U.S.C. § 2000e–16(a); Ginger v. District

of Columbia, 527 F.3d 1340, 1346 (D.C. Cir. 2008). An act of retaliation gives rise to liability if

it is of sufficient significance that it “might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe R.R. v. White, 548 U.S. 53, 68

(2006). Where, as here, the employer has proffered a non-retaliatory explanation for a materially

adverse employment action, the “central question is whether the employee produced sufficient

evidence for a reasonable jury to find that the employer’s asserted reason was not the actual

reason and that the employer intentionally retaliated against the employee.” McGrath v. Clinton,

666 F.3d 1377, 1383 (D.C. Cir. 2012) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d

490, 494 (D.C. Cir. 2008)) (alterations omitted). The court is obliged to weigh the entirety of the

evidence and to determine whether the plaintiff’s evidence creates a material dispute of fact on

this question. Brady, 520 F.3d at 495. And a plaintiff has “multiple ways” to cast doubt on the

employer’s asserted reason for acting: for instance, the plaintiff may draw comparisons to others

similarly situated, submit evidence suggesting that the employer has lied about the underlying
                                                  5
facts, or suggest the employer failed to follow established protocol or procedure. See id. But a

plaintiff cannot succeed merely by demonstrating that the employer’s asserted reason was faulty

or erroneous; to prevail, the plaintiff “must show both that the reason was false, and that

[retaliation] was the real reason.” Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007).

           C. The Plaintiff’s Nine-Day Suspension Was Not Unlawful Retaliation

       The plaintiff alleges that her nine-day suspension was imposed as a form of retaliation for

her filing of an EEOC charge the previous year. Pl.’s Opp’n at 1–2. The defendant counters that

the plaintiff was suspended because she failed to show up to work. Def.’s Mot. at 5–6. The

plaintiff was placed on a period of administrative leave that was due to end on February 4, 2008.

Id. at 6. She was initially expected to return to work that day. Id. But, based on a doctor’s note,

the plaintiff claimed that she could not return until February 19, 2008. Id. On that date, the

plaintiff left a voicemail with a supervisor at some point after 2:00 o’clock in the afternoon,

indicating that she would not be showing up to work. Id. The plaintiff left a similar voicemail

the following day (February 20, 2008), again informing the supervisor that she would not be

attending work that day. Id. On February 26, the plaintiff faxed a “questionable medical

document” (dated February 12, 2008) to another employee, which indicated that she was under a

doctor’s care and could not attend work for medical reasons. Id.

       Absenteeism is, without doubt, a legitimate, non-retaliatory reason for taking action

against an employee. See McGill v. Munoz, 203 F.3d 843, 846 (D.C. Cir. 2000); Short v.

Chertoff, 555 F. Supp. 2d 166, 176–77 (D.D.C. 2008) (noting that the plaintiff’s absence without

leave was valid grounds for suspension). And the defendant argues that the plaintiff did not

follow the relevant procedures before taking medical leave, nor did she provide adequate

evidence that medical leave was warranted. Because the defendant has offered a valid

justification for Gurura’s suspension, the only question is whether there is enough evidence for a
                                                 6
reasonable juror to determine that this justification is pretextual. Geleta v. Gray, 645 F.3d 408,

411 (D.C. Cir. 2011).

       The plaintiff suggests that the defendant’s stated reason for acting is false. The plaintiff

claims that she had valid medical reasons for her absences, and that she had 350 hours of annual

leave and 84 hours of sick leave at her disposal. Pl.’s Opp’n at 4. But this argument misses the

point. Regardless of the plaintiff’s purported medical condition or her available leave, the

plaintiff does not explain why she failed to properly request such leave. A workplace Collective

Bargaining Agreement required the plaintiff to give advance notice of any absences, either (1)

when the employee becomes aware of the need for leave or (2) at the latest, two hours before the

scheduled start of her tour of duty. Def.’s Mot. at 6. Based on the plaintiff’s own paperwork, the

plaintiff was under a doctor’s care beginning no later than February 12, 2008. Pl.’s Opp’n at 4.

Accordingly, there was no reason she could not request leave well in advance of her absences on

February 19 and 20. But she did not do so. Instead, the plaintiff did not inform her supervisors

of her necessity for leave until hours after her scheduled start time. Thus, even if the plaintiff

had leave time available, there is no evidence to indicate that she properly obtained permission to

use that leave. Accordingly, the plaintiff’s arguments do not cast doubt on the defendant’s

reason for acting.4 The court therefore concludes that no reasonable jury could find that the



4
       Although the plaintiff does not press this point, the proximity in time between the EEOC charge
       and the adverse employment action may give rise to an inference of retaliation depending on the
       facts of the case. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (“For purposes of
       establishing a prima facie case of retaliation, temporal proximity can indeed support an inference
       of causation, but only where the two events are very close in time.”). Here, the suspension was
       proposed in March 2008, six months after the EEOC charge was filed. Cf. Clark Cnty. Sch. Dist.
       v. Breeden, 532 U.S. 268, 273–74 (2001) (citing cases finding that a temporal proximity of three
       months and four months is insufficient to demonstrate causal connection). But regardless,
       temporal proximity alone cannot defeat summary judgment when confronted with the employer’s
       legitimate, non-retaliatory reason for acting. See Woodruff v. Peters, 482 F.3d 521, 530 (D.C.
       Cir. 2007) (concluding in an ADA retaliation claim that “positive evidence beyond mere
       proximity is required to defeat the presumption that the [defendant’s] proffered explanations are

                                                   7
District’s stated reasons for suspending the plaintiff are merely a guise to mask unlawful

retaliation.

               D. The Plaintiff’s 15-Day Suspension Was Not Unlawful Retaliation

        The plaintiff similarly claims that her 15-day suspension in February 2009 was a form of

unlawful retaliation. Pl.’s Opp’n at 2–3. The defendant claims that the plaintiff was suspended

because she failed to attend two training programs, arrived at work late, and missed two days of

work entirely. Def.’s Mot. at 7–10. Specifically, the defendant argues that the plaintiff failed to

attend “snow training” on October 11, 2008; that she failed to attend the “City Works” training

program from October 14 to October 16, 2008; that she was thirty minutes late to work on

October 20 and October 22, 2008; and that she did not show up to work on October 27 and

October 28, 2008. The defendants’ offered reasons are valid under Title VII: an employer may

punish its employees for failing to show up at work functions, showing up late, or not showing

up at all. McGill, 203 F.3d at 846; Singleton v. Potter, 402 F. Supp. 2d 12, 31 (D.D.C. 2005)

(noting that “attendance issues” are legitimate grounds for action). Thus, it falls on the plaintiff

to show that this justification is pretextual.

        The plaintiff concedes that she did not attend the City Works training in the fall of 2008.

Pl.’s Opp’n at 2; see Def.’s Mot., Ex. 13 at 184 (“Q. Did you attend the [City Works] training?

A. No.”). The plaintiff nevertheless maintains that other employees failed to attend the City

Works training without suffering any reprisal and that she attended the training at some later

point in time. Pl.’s Opp’n at 2. It is true that the plaintiff may prove retaliation by introducing

evidence suggesting that other employees who failed to attend the training received more lenient

        genuine”); Hutchinson v. Holder, 815 F. Supp. 2d 303, 318 (D.D.C. 2011) (reaching the same
        conclusion in a Title VII case).




                                                  8
treatment. See Brady, 520 F.3d at 495. But the plaintiff does not specify which employees

failed to attend the training, whether they were similarly situated, or what consequences they

may have suffered. Pl.’s Opp’n, Ex. 1 ¶ 10 (“To my knowledge, no other employee received

adverse action for failing to attend the training as initially scheduled.”). In addition, the plaintiff

was not suspended for just missing this training; she committed a host of other infractions as

well. The plaintiff does not indicate whether any other employees also committed similar

infractions. Thus, the plaintiff fails to demonstrate that these purported comparators were

similarly situated to her. See Royall v. Nat’l Ass’n of Letter Carriers, 548 F.3d 137, 145 (D.C.

Cir. 2008) (indicating that the defendant’s disparate treatment of similarly situated employees

may establish pretext, but only if the plaintiff shows that “all of the relevant aspects of [her]

employment were nearly identical”) (quotation marks and alterations omitted). Therefore, the

plaintiff’s argument does not create a triable issue of fact. See Greene v. Dalton, 164 F.3d 671,

675 (D.C. Cir. 1999) (noting that conclusory, unsubstantiated allegations are insufficient to

defeat summary judgment); Mason v. Geithner, 811 F. Supp. 2d 128, 181 (D.D.C. 2011) (noting

that a “cursory allegation may suffice in a complaint, but it is patently insufficient to create a

genuine dispute necessitating trial”).

        Second, the plaintiff admits that she did not attend the snow training in October 2008, yet

she maintains that she was unaware that her attendance was required. Pl.’s Opp’n, Ex. 1 ¶ 11.

But the defendant has submitted the plaintiff’s testimony to the contrary. See Def.’s Mot., Ex. 13

at 187 (“Q. Were you aware that you were to attend a snow training on October 11th? A. Yes.

Q. So why didn’t you attend the training? A. Well, I don’t know.”).5 In addition, she states that


5
        To the extent that her prior statements consist of sworn testimony, the plaintiff cannot create a
        question of fact by submitting an affidavit that contradicts her previous statements. Galvin v. Eli
        Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (explaining that the “sham affidavit” rule
        “precludes a party from creating an issue of material fact by contradicting prior sworn testimony

                                                     9
she did not attend the snow training because she lacked a means of transportation. Pl.’s Opp’n,

Ex. 1 ¶ 11. But the plaintiff’s allegations, even if true, would not excuse her absence. The

defendant submits evidence suggesting that employees were responsible for getting to training on

their own, or requesting a ride if needed. Def.’s Mot., Ex. 13 at 101–02. The plaintiff puts forth

no evidence to the contrary nor evidence that she attempted to arrange a ride to the training. In

sum, the plaintiff’s second argument does not create a genuine dispute of material fact.

       Third, the plaintiff argues that she requested approval for her absence on October 27 and

October 28, 2008 by calling in on the day of her absences. Pl.’s Opp’n, Ex. 1 ¶ 12 (“With

respect to the AWOL, I attempted to call in to advise that I would not be in for work. I was

unable to reach a supervisor and left a voicemail message.”). But, in order to constitute an

excused absence, the plaintiff needed to obtain approval of her absence in advance. She did not

do so. Although she may have attempted to notify her supervisor of her absence, she did not

obtain approval for such leave in advance. Def.’s Mot., Ex. 13 at 34–35.

       Finally, the plaintiff argues that her tardiness should be excused because “it was common

in my office for other employees to miss work or come to work late. To my knowledge, no

adverse action was taken against them and I was singled out.” Id. ¶ 13. Again, this allegation

lacks sufficient detail and evidentiary support to warrant trial. Greene v. Dalton, 164 F.3d at

675; Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 45 n.6 (D.D.C. 2008) (finding that a

plaintiff’s description of work procedures consisted of mere allegations rather than genuine facts

because the descriptions were unsupported by any citation to evidence in the record). As set

forth above, the plaintiff was suspended for a number of infractions and she has failed to identify

any similarly situated co-workers who were treated differently despite committing a number of

       unless the shifting party can offer persuasive reasons for believing the supposed correction is
       more accurate than the prior testimony”).


                                                   10
infractions (rather than the occasional late arrival to work). Accordingly, the plaintiff’s claim

that her 15-day suspension was a form of unlawful retaliation cannot proceed to trial.

                 E. The Plaintiff’s Termination Was Not Unlawful Retaliation

        Finally, the plaintiff alleges that her termination was retaliatory. The defendant argues

that the plaintiff was fired for insubordination, malfeasance, and the use of abusive or offensive

language. Def.’s Mot. at 15–16. It goes without saying that these reasons are a legitimate basis

for disciplinary action. See Weigert v. Georgetown Univ., 120 F. Supp. 2d 1, 5 (D.D.C. 2000)

(concluding that the plaintiff’s “insubordination,” as well as her “rude and abrasive behavior,”

were grounds for her termination). The plaintiff’s sole response is to argue that the documents

she shredded were not originals, but instead were photocopies. Pl.’s Opp’n, Ex. 1 ¶ 16. But

even if the plaintiff is correct, the plaintiff has not demonstrated that Mr. Pacifico did not

honestly believe that, based on the original ink and highlighted areas of the shreds, someone had

shredded the originals. And if the employer honestly believes in the correctness of the

conclusions that form the basis for its actions, those acts will not constitute unlawful retaliation.

See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Once the employer

has articulated a non-discriminatory reason for its action . . . . the issue is not the correctness or

desirability of the reasons offered but whether the employer honestly believes in the reasons it

offers.” (citing McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.

1992))) (alterations omitted); Mentzer v. Lanier, 677 F. Supp. 2d 242, 260 (D.D.C. 2010) (same).

Regardless, the plaintiff does not contest that she lost her composure, used vulgar language, and

hurled a flower pot towards her co-workers. Based on these facts, no reasonable juror could

conclude that the plaintiff’s termination was pretextual.




                                                  11
                                       IV. CONCLUSION

       Summary judgment “serves as the ultimate screen to weed out truly insubstantial lawsuits

prior to trial.” Crawford-El v. Britton, 523 U.S. 574, 600 (1998). Here, the plaintiff alleges that

every disciplinary action taken after her EEOC charge was retaliatory. But Title VII’s retaliation

provisions are “intended to protect the remedial scheme,” not to “create a permanent discipline-

free zone for complainants.” See Woodruff v. Peters, 482 F.3d 521, 531 (D.C. Cir. 2007). And

the defendant should not suffer through a trial absent any evidence for the jury to rely on.

Accordingly, the defendant’s motion is granted. An order consistent with this memorandum

opinion is separately issued this 8th day of August, 2012.


                                                              RUDOLPH CONTRERAS
                                                              United States District Judge




                                                12
