                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
BLYDEN A. DAVIS,               )
                               )
               Plaintiff,      )
                               )
     v.                        )   Civ. Action No. 08-290 (EGS)
                               )
JOSEPH J. MAGNOLIA, INC.,      )
                               )
               Defendant.      )
______________________________)

                       MEMORANDUM OPINION

     Plaintiff Blyden A. Davis, an African-American male, has

filed discrimination and retaliation claims against defendant

Joseph J. Magnolia, Inc., his former employer, pursuant to Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e et seq., and the District of Columbia Human Rights Act

(“DCHRA”), D.C. Code § 2-1401.01 et seq.    Pending before the

Court is defendant’s motion for summary judgment on all claims.

Upon consideration of the motion, the response and reply

thereto, the applicable law, and the entire record, and for the

reasons stated herein, the Court hereby GRANTS IN PART AND

DENIES IN PART defendant’s motion for summary judgment.

I.   BACKGROUND

     Plaintiff was hired by defendant in April 2005 as a heavy

equipment operator working at construction job sites.   Soon

after being hired, plaintiff received two or three oral warnings
in May 2005 concerning his inability to operate heavy equipment,

followed by a written warning issued on June 2, 2005.   The

written warning, issued by plaintiff’s supervisor at the time,

Fred Wedding, stated that plaintiff “was hired as a heavy

equipment operator with 10 years of previous experience.

However, over the course of a month, Mr. Davis has proven to be

uncapable [sic] of operating heavy machinery at this site.”

Def.’s Ex. 8.    Plaintiff signed the warning and indicated he

“agree[d] with the employer’s statement.”   Def.’s Ex. 8.

Another written warning dated June 8, 2005 issued by John Kulp,

the Director of Site Utilities, similarly stated that plaintiff

“is unable to perform the task of operating equipment as needed”

and that plaintiff would be transferred to a different crew at a

reduced rate of pay.   Def.’s Ex. 9.   The June 8 warning also

stated that “if [plaintiff’s] actions do not i[m]prove, with new

crew we may let him go.”    Def.’s Ex. 9.

     Plaintiff was assigned to a new crew, this one supervised

by Foreman Jeff Forsythe.   Plaintiff alleges that while working

on this crew, in July 2005, a fellow employee informed him that

Forsythe had referred to plaintiff as a “nigger.”   Compl. ¶ 13;

Def.’s Ex. 10.   Plaintiff made an internal complaint regarding

Forsythe’s allegedly discriminatory conduct on October 17, 2005.

Def’s Ex. 10.    Defendant conducted an investigation and

                                  2
 
 
interviewed plaintiff, Forsythe, and other members of the crew.

Following the investigation, Forsythe received a written warning

on November 19, 2005.   Def.’s Ex. 12.   The warning indicates a

“violation of company policy/procedures” and “unsatisfactory

behavior towards employees or customers.”      Def.’s Ex. 12.

     On November 2, 2005, while still working on Forsythe’s

crew, plaintiff received another written warning.     This warning

stated that plaintiff had been insubordinate and violated

company policies by failing to take a required training class.

Specifically, the warning stated that plaintiff “did not want to

attend traffic flagging safety class.    Jeff Forsythe had to

ask[] several times before [plaintiff] attended training class.

[Plaintiff] would not take the written test after the class was

completed.   Mark Tavenner [defendant’s Safety Director] was

teaching the class & has documented this issue.     This is final

warning before discharge.”    Def.’s Ex. 14.   Plaintiff concedes

that he received this warning, but he asserts that the warning

was undeserved because - although he did not take the written

test in November 2005 - he did attend the class itself.

Plaintiff also argues that the November 2005 warning was

undeserved because he had taken the traffic flagging safety

course on another occasion.   In December 2005, after plaintiff

had made the internal complaint regarding Forsythe and after the

                                  3
 
 
incident related to the flagging course, plaintiff was

transferred to a third crew, supervised by Foreman George

Shegogue.

              On January 6, 2006, plaintiff filed a complaint with the

District of Columbia Office of Human Rights (“DCOHR”), alleging

discrimination on the basis of race, as well as retaliation.

Def.’s Ex. 15.

              Two more incidents occurred before plaintiff was

terminated.                           On January 30, 2006, plaintiff received a written

warning for failing to report an accident which caused damage to

equipment.                         Def.’s Ex. 17.1             Subsequently on April 25, 2006,

plaintiff was involved in an altercation at a job site.                                    Though

the parties disagree on the particulars, it is undisputed that

plaintiff was involved in some kind of disagreement at a job

site with one of defendant’s customers, the general contractor

at the job site.                                     According to plaintiff, after an employee of

the general contractor repeatedly did not move a truck out of

plaintiff’s way, plaintiff became “agitated” or “upset” and

asked the general contractor’s employee to move the truck before
                                                            
1
     At the time the warning was issued, plaintiff again signed
the warning and indicated that he agreed with the employer’s
statement. Def.’s Ex. 17. Plaintiff now asserts, however, that
the warning was undeserved because defendant’s policies only
require that accidents must be reported, not that all employees
involved report each accident. Because another employee
reported the incident, plaintiff asserts that there was no
violation of company policy. Pl.’s Mem. 36-37.
                                4
 
 
plaintiff “hit it” with the vehicle plaintiff was operating.

Def.’s Ex. 21; Def.’s Ex. 24.     In an email plaintiff sent on

April 28, 2006, plaintiff explained the incident as follows:

     I had asked one of the supers to have his friend move
     his truck out of our way 5 times. . . . [E]ach time I
     asked I did become more agitated. The last time I
     said “Come on move the truck before I slam the machine
     into it” (accidentally of course). Well I was kinda
     pissed off so I stopped my machine and asked them
     where my cat key was which I had let them borrow the
     previous day 4/26/06. they told me it was on the
     machine so I retrieved it and went about my business.

Def.’s Ex. 24.   Defendant, relying on the testimony of another

witness, asserts that plaintiff also yelled into the trailer

belonging to the superintendent: “Are you going to move this

shit or what.”   Def.’s Mem. 7.

     It is also undisputed that after the incident at the job

site, plaintiff’s supervisor George Shegogue told plaintiff to

report to the office the next day for a meeting with Kulp.    At

that meeting, Kulp informed plaintiff that the general

contractor had demanded that plaintiff be permanently removed

from its job site.   The parties further agree that defendant

then conducted an investigation of the general contractor’s

allegations, at which time plaintiff provided defendant with a

written statement.   Def.’s Ex. 21.    At the conclusion of the

investigation, and despite an otherwise favorable performance

review from Shegogue, defendant terminated plaintiff on May 3,

                                   5
 
 
2006.    The termination report listed several reasons for the

termination, including: 1) “insubordinately refused to take

safety course,” 2) “dishonest[l]y failing to report @ fault

accident w/ property damage,” 3) “morale and conduct

unbecoming,” 4) “solicitation of employment to another

contractor,” and 5) “performance was bad enough that super had

to remove him before [he] could cause physical altercation

amongst contractors.”    Def.’s Ex. 25.

        After he was terminated, plaintiff amended his complaint

with DCOHR to reflect his termination, asserting that the

termination was motivated by unlawful retaliation.    Def.’s Ex.

26.   In a Letter of Determination dated November 28, 2006, DCOHR

found no probable cause to believe defendant subjected plaintiff

to discriminatory conduct or retaliated against plaintiff.

Def.’s Mem. Ex 27.    The EEOC issued a Dismissal and Notice of

Rights on November 19, 2007 stating that the EEOC “adopted the

findings of the state or local fair employment practices agency

that investigated this charge.”    Def.’s Ex. 28.   On February 20,

2008, plaintiff initiated this lawsuit.

II.     STANDARD OF REVIEW

        Summary judgment is appropriate “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.

                                   6
 
 
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).   Though the Court must draw all justifiable inferences

in favor of the non-moving party in deciding whether there is a

disputed issue of material fact, “[t]he mere existence of a

scintilla of evidence in support of the [non-movant]’s position

will be insufficient; there must be evidence on which the jury

could reasonably find for the [non-movant].”     Anderson, 477 U.S.

at 252.   “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id.

at 249-50 (internal citations omitted).

III. ANALYSIS

     A.    Statute of Limitations: D.C. Code § 2-1403.16(a)

     Plaintiff’s DCHRA claims are time barred.    D.C. Code

§ 2-1403.16(a) provides that “[a] private cause of action

pursuant to this chapter shall be filed in a court of competent

jurisdiction within one year of the unlawful discriminatory

act[.]”   Id.   Plaintiff argues that the statute of limitations

was tolled because he filed an administrative complaint, but

§ 2-1403.16(a) provides only that “[t]he timely filing of a

complaint with the [District of Columbia Office of Human Rights]

. . . shall toll the running of the statute of limitations while

the complaint is pending.”    Id. (emphasis added).




                                  7
 
 
              Plaintiff filed his administrative complaint in January

2006, and on November 28, 2006 the DCOHR issued a Letter of

Determination finding “no probable cause” to believe that

plaintiff was subjected to a hostile work environment or

retaliation.                             The Letter of Determination explicitly informed

plaintiff that the OHR had “completed the investigation of [his]

complaint.”                           Def. Ex. 27 at 1.             The Letter of Determination

further stated that plaintiff could apply to the Director of the

OHR for reconsideration within 30 days and explained that if

plaintiff “does not file a request for reconsideration with the

OHR, this letter constitutes a final decision from OHR.”                                      Def.

Ex. 27 at 12.                               Plaintiff did not apply for reconsideration of

the DCOHR’s decision.

              The Court concludes that plaintiff’s complaint was no

longer “pending” with the DCOHR as of November 2006.                                      Because

plaintiff did not commmence this action until February 20, 2008,

the one year statute of limitations bars plaintiff from pursuing

the DCHRA claims.                                       Accordingly, plaintiff’s claims under the

DCHRA are hereby DISMISSED.2




                                                            
2
     Because the Court concludes that plaintiff’s claims under
the DCHRA are barred by the statute of limitations, the Court
does not reach defendant’s alternate argument that these same
claims are also barred under the election of remedies provision
contained in D.C. Code § 2-1403.16(a).  
                                8
 
 
     B.   Collateral Estoppel

     Defendant argues that because the DCOHR issued an adverse

ruling on the merits of plaintiff’s DCHRA claims, plaintiff is

collaterally estopped from pursuing both his DCHRA claims and

his Title VII claims.   The Court disagrees.   Although the

Supreme Court has made it clear that a state administrative

determination can preclude Title VII claims if it was affirmed

by the state court, the same is not true if the agency

determination was not reviewed by a state court.    Specifically,

in Kremer v. Chemical Construction Corporation, 456 U.S. 461,

479-80 (1982), the Supreme Court held that a plaintiff was

precluded from pursuing his Title VII claims because the

administrative decision dismissing his New York state law claims

had been affirmed by the New York state court.     Id. (“The [New

York] Appellate Division’s affirmance of the [New York State

Division of Human Rights’] dismissal necessarily decided that

petitioner’s claim under New York law was meritless, and thus it

also decided that a Title VII claim arising from the same events

would be equally meritless.” (citing 28 U.S.C. § 1738)).

     However, in University of Tennessee v. Elliott, 478 U.S.

788 (1986), the Supreme Court explained that “[w]hile Kremer

teaches that final state-court judgments are entitled to full

faith and credit in Title VII actions, it indicates that

                                 9
 
 
unreviewed determinations by state agencies stand on a different

footing[.]” Id. at 792.   The Court then explicitly held,

“Congress did not intend unreviewed state administrative

proceedings to have preclusive effect on Title VII claims.”      Id.

at 796; see also Bagenstose v. Dist. of Columbia, 503 F. Supp.

2d 247, 260 (D.D.C. 2007)(“[A] state administrative decision in

the employment-discrimination context is entitled to preclusive

effect in a subsequent Title VII suit where that decision has

been reviewed and affirmed by the state courts.”(emphasis

added)), aff’d, No. 07-5293, 2008 U.S. App. LEXIS 2914 (D.C.

Cir. Feb. 5, 2008).

     In the instant case, the administrative decision by the

DCOHR was not reviewed by a state court.   Accordingly, plaintiff

is not precluded from litigating his Title VII claims, and the

Court now turns to the merits of plaintiff’s claims.

     C.   Plaintiff’s Discrimination Claim

     Title VII makes it unlawful for an employer to “fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1).   “This statutory

text establishes two elements for an employment discrimination

                                10
 
 
case: (i) the plaintiff suffered an adverse employment action

(ii) because of the employee’s race, color, religion, sex, or

national origin.”    Brady v. Office of Sergeant at Arms, 520 F.3d

490, 493 (D.C. Cir. 2008).    An adverse action in the

discrimination context is a “significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing significant change in benefits.”     Douglas v. Preston,

559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor v. Small, 350

F.3d 1286, 1293 (D.C. Cir. 2003)).

     “[O]nce the plaintiff has made out a prima facie case, [the

defendant] bears the burden of producing a non-discriminatory

explanation for the challenged personnel action.”     Ford v.

Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973)).    After

defendant has produced a legitimate, non-discriminatory reason

for the action, plaintiff bears the burden of showing either

that “the employer’s reason is pretextual or . . . that it was

more likely than not that the employer was motivated by

discrimination.”    Id.   (quoting Forman v. Small, 271 F.3d 285,

292 (D.C. Cir. 2001)).

     At the summary judgment stage, “once the employer asserts a

legitimate, non-discriminatory reason, the question whether the

                                  11
 
 
employee actually made out a prima facie case is no longer

relevant[.]”   Brady, 520 F.3d at 493 (internal quotation marks

omitted).   In other words, once an employer provides a

legitimate, non-discriminatory explanation for the challenged

action, “the district court need not - and should not – decide

whether the plaintiff actually made out a prima facie case under

McDonnell Douglas.”    Id. at 494.    In this circumstance, the

Court must assess “whether [the plaintiff] produced evidence

sufficient for a reasonable jury to find that the employer’s

stated reason was not the actual reason and that the employer

intentionally discriminated against [the plaintiff] based on his

race.”   Id. at 495.   As this Circuit has repeatedly held, the

inquiry after defendant has proffered a legitimate, non-

discriminatory reason for its actions is:

     [W]hether a reasonable jury could infer intentional
     discrimination from “(1) the plaintiff’s prima facie
     case; (2) any evidence the plaintiff presents to
     attack the employer’s proffered explanation for its
     actions; and (3) any further evidence of
     discrimination that may be available to the plaintiff
     (such as independent evidence of discriminatory
     statements or attitudes on the part of the employer).”
     This boils down to two inquiries: could a reasonable
     jury infer that the employer’s given explanation was
     pretextual, and, if so, could the jury infer that this
     pretext shielded discriminatory motives?

Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005) (quoting

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.


                                 12
 
 
1998)); see also Czekalski v. Peters, 475 F.3d 360, 368 (D.C.

Cir. 2007).

     In the instant case, plaintiff alleges that the verbal and

written reprimands, his transfer from one crew to another, and

his eventual termination were discriminatory conduct by

defendant in violation of Title VII.    Compl. ¶ 20.   In

particular, plaintiff has asserted that he “received repeated,

unwarranted warnings that no one else received.”   Pl.’s Mem. 24.

     As detailed below, the Court concludes that the defendant,

in its motion for summary judgment, the accompanying Statement

of Material Undisputed Facts (“Def.’s Stat. Facts.”), and

related exhibits, has produced legitimate, non-discriminatory

reasons for each of the allegedly discriminatory actions.

However, with respect to one of those actions, namely the

written warning issued to plaintiff in November 2005, the Court

concludes that plaintiff has produced sufficient evidence from

which a reasonable jury could infer intentional discrimination.

     The Court will first address the November 2005 incident

before addressing the remainder of plaintiff’s allegations.

          1.   The November 2005 Written Warning

     It is undisputed that on or around November 2, 2005,

plaintiff received a written warning.   It is also undisputed

that the proffered reason for the warning was insubordination,

                               13
 
 
more specifically that “Jeff Forsythe had to ask[] several times

before [plaintiff] attended [a] training class” and that

plaintiff “would not take the written test after the class was

completed.”                           Def.’s Ex. 14.

              Plaintiff concedes that he did not take the written portion

of the class and does not dispute that Forsythe had to ask him

“several times” to attend the course.                                         However, plaintiff claims

Forsythe treated him unfairly by making him retake a course that

he had already taken.                                          Plaintiff also asserts that he therefore

did not deserve the written warning.3

              Because the defendant has provided a legitimate, non-

discriminatory explanation for its actions, i.e. that the

general contractor required all members of the crews working on

its job site to take the course and that the warning was issued

to plaintiff because he refused to do so, the Court must

determine whether there is sufficient evidence from which a

reasonable jury could infer intentional discrimination. Murray,

406 F.3d at 713.                                     As noted above, the Court considers “(1) the

plaintiff’s prima facie case; (2) any evidence the plaintiff

                                                            
3
     To the extent plaintiff is arguing that being required to
attend the safety training course was discriminatory conduct by
his employer in violation of Title VII, the Court disagrees.
The Court finds that the plaintiff’s required attendance at the
safety training class, along with everyone else assigned to
Forsythe’s crew, was not an “adverse employment action.”

                                                                       14
 
 
presents to attack the employer’s proffered explanation for its

actions; and (3) any further evidence of discrimination that may

be available to the plaintiff (such as independent evidence of

discriminatory statements or attitudes on the part of the

employer).”                           Id. (emphasis added).

              Here, evidence that Forsythe - who was plaintiff’s direct

supervisor at the time of the November 2005 incident - used the

term “nigger” specifically in reference to plaintiff provides

just such independent evidence of discriminatory statements or

attitudes on the part of the employer from which a reasonable

jury could infer intentional discrimination.4                                Plaintiff has

therefore identified sufficient, albeit circumstantial, evidence

from which a reasonable jury could infer that Forsythe’s

decision to issue plaintiff a written reprimand was the result

of intentional discrimination.                                 Accordingly, with respect to the

November 2005 incident, the Court DENIES summary judgment on

plaintiff’s discrimination claim.
                                                            
4
      Whether or not Forsythe made the racist remark is itself a
disputed issue of material fact. The reprimand issued to
Forsythe after plaintiff made an internal complaint, as well as
defendant’s submission to the DCOHR, assert that one of
defendant’s employees stated that he heard Forsythe use the
racial slur. Furthermore, although plaintiff has provided
inconsistent statements in this regard, plaintiff stated in his
deposition that he himself heard Forsythe use the racial slur.
Forsythe, on the other hand, denied that he ever made a racist
statement or discriminated against anyone. Def.’s Stat. Facts
¶ 47.

                                                               15
 
 
             2.    Other Allegations of Discriminatory Conduct

        The Court now turns to the other allegedly discriminatory

conduct by defendant, including the June 2005 warnings, the

January 2006 warning and plaintiff’s ultimate termination in May

2006.    First, with respect to the warnings and demotion that

occurred shortly after plaintiff began working for defendant in

June 2005, defendant asserts that these actions were taken

because plaintiff demonstrated an inability to perform the job

for which he was hired, namely safely operate heavy equipment.

Defendant has submitted the written warnings themselves in

support of this assertion, as well as the testimony of John Kulp

and defendant’s human resources director, Ricardo Tormo.

        Because defendant has produced a legitimate, non-

discriminatory reason for its actions, the burden shifts to

plaintiff to show either “that the employer’s reason is

pretextual” or “that it was more likely than not that the

employer was motivated by discrimination.”     Ford, 629 F.3d at

201.    Plaintiff has not met this burden with respect to these

incidents.    Quite the contrary, at his deposition, plaintiff

plainly stated that he did not believe that his demotion from a

heavy equipment operator and reduction in pay was because of his

race, and plaintiff stated that those events “had nothing to do

with my case.”    Pl.’s Dep. 66:11-67:6; see also Pl.’s Dep. at 68

                                  16
 
 
(Q: “[A]re you claiming that Mr. Kulp’s decision to move you to

another crew, off [Wedding’s] crew onto [Forsythe’s] crew, was

that due to your race?” A: “No.”).5

              Similarly, with respect to the warning issued in January

2006 related to the accident on the job site that caused damage

to defendant’s property, the defendant has plainly offered a

non-discriminatory reason for its actions.                                The written warning

itself, which plaintiff himself signed at the time it was

issued, states that plaintiff failed to report an accident in

which he caused damage to property.                                 At his deposition,

plaintiff admitted that he caused an accident that resulted in

damage to defendant’s property.                                 Pl.’s Dep. 115:9-115:19.

              Plaintiff has also failed to point to any “evidence

sufficient for a reasonable jury to find that the employer’s

stated reason was not the actual reason and that the employer

                                                            
5
     In December 2005, after plaintiff had made the internal
complaint regarding Forsythe and after the incident related to
the flagging course, plaintiff was transferred to a third crew,
supervised by Foreman George Shegogue. To the extent that
plaintiff alleges that his transfer from Forsythe’s crew to
Shegogue’s crew in November 2005 supports his claim of
discrimination, the Court is not persuaded that this particular
transfer amounted to an adverse employment action. Unlike the
transfer in June 2005 that was accompanied by a demotion and
reduction in pay, plaintiff has not identified for the Court any
evidence suggesting that the transfer to Shegogue’s crew in
December 2005 an adverse employment action.


                                                               17
 
 
intentionally discriminated against [the plaintiff] based on his

race,”     Brady, 520 F.3d at 493, regarding the January 2006

warning.    Plaintiff, quoting the Circuit’s opinion in Aka v.

Washington Hospital Center, attempts to argue that “an

employer’s heavy use of highly subjective criteria, such as

‘interpersonal skills,’ could support an inference of

discrimination,” 156 F.3d at 1298, and that such an inference

should be drawn in the instant case because the employer’s

policies were unclear.    Pl.’s Mem. 24.   While plaintiff is

correct that the heavy use of highly subjective criteria is

treated with suspicion, the Court finds nothing subjective about

the criteria behind this written warning, i.e. damage to

defendant’s property.

     Finally, the Court considers the plaintiff’s termination in

May 2006.    As detailed above, defendant has produced legitimate,

non-discriminatory reasons for plaintiff’s termination.    The

termination report listed several reasons for the termination,

including the prior incidents for which warnings were issued, as

well as the altercation at the job site in April 2006 that led

to the general contractor demanding that plaintiff be

permanently removed from the job site.     Def.’s Stat. Facts

¶¶ 76-95.    The termination report listed five violations:

insubordination for failing to take a safety course, failure to

                                  18
 
 
report an accident as required by company policy, “unbecoming

morale and conduct,” soliciting employment from another

contractor, and poor performance that was “bad enough that super

had to remove him before [he] could cause physical altercation

amongst contractors.”    Def.’s Ex. 25.   Defendant, in its summary

judgment briefing, has particularly emphasized the altercation

at the job site.

     Thus, the inquiry again becomes whether, despite the

reasons articulated by defendant, plaintiff has provided

sufficient evidence from which a reasonable jury could infer

discriminatory intent.

     Plaintiff makes several arguments in this respect.      First,

regarding the assertion that plaintiff exhibited “unbecoming

morale and conduct” and “solicited employment from another

contractor,” plaintiff asserts that these are charges “for which

no Magnolia employee has been disciplined.”    Pl.’s Mem. 20.

Although it is correct that evidence of pretext can include

evidence of more favorable treatment of employees not in

plaintiff’s protected class, “[t]o prove that [plaintiff] is

similarly situated to another employee, a plaintiff must

‘demonstrate that all of the relevant aspects of [his]

employment situation were nearly identical to those of the

[allegedly comparable] employee.”     Laurent v. Bureau of

                                 19
 
 
Rehabilitation, Inc., 544 F. Supp. 2d 17, 22 (D.D.C.

2008)(quoting Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.

1999)); see also Phillips v. Holladay Prop. Servs., 937 F. Supp.

32, 37 (D.D.C. 1996), aff’d, No. 96-7202, 1997 U.S. App. LEXIS

19033 (D.C. Cir. Jun. 19, 1997).     The plaintiff’s comparator

must have been charged with a comparable offense and then

treated less harshly than the plaintiff.     See Holbrook, 196 F.3d

at 261; Hanna v. Herman, 121 F. Supp. 2d 113, 120-21 (D.D.C.

2000).

     In the instant case, plaintiff has failed to demonstrate

that another similarly situated employee was treated more

favorably.   Plaintiff points first to the defendant’s treatment

of another employee, Norayer Mehrabian.    Pl.’s Stat. Facts ¶ 12.

The parties appear to agree that Mehrabian was also removed from

a customer’s job site, but he was not terminated for that

offense.   Plaintiff also alleges that two of his co-workers,

Jose Parajan and Andre Bender “engag[ed] in a similar incident”

by having an altercation at a job site but were sent home and

“given an opportunity to ‘cool off’” rather than being

reprimanded or terminated.   Pl.’s Stat. Facts ¶ 11.

     However, plaintiff does not dispute that Mehrabian was

removed from a job site for a safety violation and that the

altercation between the other two employees did not involve one

                                20
 
 
of defendant’s customers.   Nor does plaintiff allege that any of

these other employees accumulated multiple warnings before

termination, as plaintiff did.   Finally, plaintiff cannot show

pretext by simply asserting that defendant “provided no examples

of employees disciplined for [the] reasons given for Davis’

warnings and/or termination.”    Pl.’s Mem. 38.   The burden is on

plaintiff to provide evidence from which a jury could infer

discriminatory intent.   The Court concludes that plaintiff has

not demonstrated a “similarly situated employee” was treated

more favorably than plaintiff.    “In the absence of evidence

that the comparators were actually similarly to [plaintiff] an

inference of falsity or discrimination is not reasonable.”

Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008).

     Second, plaintiff argues that favorable statements by the

plaintiff’s direct supervisor, Shegogue, are evidence that

defendant’s asserted reasons for terminating plaintiff were

pretextual.   Specifically, Shegogue, in a statement apparently

obtained during defendant’s investigation into the April 2006

altercation at the job site, stated that plaintiff was a “model

employee” who does “whatever I ask” and “[t]akes care of

equipment – great.”   Def. Ex. 18.    The flaw in plaintiff’s

argument, however, is that plaintiff himself does not dispute

that he caused an accident that caused injury to defendant’s

                                 21
 
 
property, that he was demoted for demonstrating an inability to

perform the tasks for which he was hired, and that he was

involved in an altercation with one of defendant’s customers.

The Court concludes that Shegogue’s statement that plaintiff was

otherwise a good employee does not provide “evidence sufficient

for a reasonable jury to find that the employer’s stated reason

was not the actual reason” or that the employer intentionally

“discriminated against [the plaintiff] based on his race.”

Brady, 520 F.3d at 493.      To the contrary, the Court is not

persuaded that Shegogue’s statements are inconsistent with the

legitimate, non-discriminatory reasons articulated by defendant.

     In sum, unlike the plaintiff’s claim with respect to the

November 2005 incident, plaintiff has not produced sufficient

evidence from which a reasonable jury could infer intentional

discrimination in connection with the remainder of the

challenged actions.6     It is undisputed that Forsythe, who was


                                                            
6
               Plaintiff also offers statistical evidence in support of
his discrimination claim. In particular, he asserts that “the
record demonstrates that Defendant, which employs approximately
114 employees (13 of whom are African American) and is located
in the District of Columbia, a city with a majority African-
American population, favors non-African American employees.
Indeed, Defendant employs no African-American managers[.]”
Pl.’s Mem. 24 (internal citations omitted). However, although
statistical evidence may be relevant in disparate treatment
actions, see McDonnell Douglas, 411 U.S. at 804-05, such
evidence is “ordinarily not dispositive.” Krodel v. Young, 748
                                22
 
 
plaintiff’s supervisor at the time of the November 2005

incident, had no decision-making authority with respect to any
                                                                     7
of the other incidents.

              Accordingly, the Court GRANTS IN PART AND DENIES IN PART

defendant’s motion for summary judgment on plaintiff’s

discrimination claim.

              D.             Plaintiff’s Claim of a Hostile Work Environment

              To prevail on a hostile work environment claim, “a

plaintiff must show that his employer subjected him to

‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the

                                                                                                                                                                                               
                                                                                                                                                                                               
F.2d 701, 710 (D.C. Cir. 1984); see also Simpson v. Leavitt, 437
F. Supp. 2d 95, 104 (D.D.C. 2006) (concluding that statistical
evidence of discrimination is “not conclusive [in a disparate
treatment case]” although it can bolster a claim of
discrimination “presuming other evidence exists to give rise to
an inference of discrimination”). In the instant case, the
Court further notes that the statistical evidence cited by
plaintiff is even less meaningful because it is not directly
relevant to the type of disparate treatment about which
plaintiff complains.
7
     The Court does note, however, that the November 2005
incident was one of several reasons included by defendant in
plaintiff’s termination report. If it is determined that the
November 2005 warning was in fact the result of discrimination,
as discussed above, the question may arise whether the plaintiff
can show that discrimination “played a motivating part or was a
substantial factor in the employment decision” to terminate
plaintiff, and then whether the defendant can “demonstrate[]
that it would have taken the same action in the absence of the
impermissible motivating factor.” Fogg v. Gonzales, 492 F.3d
447, 451 (D.C. Cir. 2007); 42 U.S.C. § 2000e-5(g)(2)(B).
                                23
 
 
victim’s employment and create an abusive working environment.’”

Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

“To determine whether a hostile work environment exists, the

court looks to the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work

performance.”                               Id. (citing Faragher v. City of Boca Raton, 524

U.S. 775, 787-88 (1998)).

              In the instant case, plaintiff alleges in his complaint

that his supervisor in July 2005 referred to him as a “nigger.”

Although plaintiff’s memorandum of law in opposition vaguely

asserts his supervisor used the racial slur “on more than one

occasion” in 2005, Pl.’s Mem. 14., plaintiff has not pointed to

any evidence that supports this assertion.                              On the contrary,

both plaintiff’s complaint, as well as plaintiff’s statement of

material facts as to which there exists a genuine issue to be

litigated, only refer to the one instance.8




                                                            
8
     Paragraph 1 and paragraph 17 of plaintiff’s statement of
material facts, despite the apparent typographical error
contained in the date referenced in paragraph 17, appear to
refer to the same incident. Both paragraphs rely on page six of
Plaintiff’s Exhibit M; the document is defendant’s submission to
DCOHR and contains, on page six, an account of the single 2005
incident.
                                24
 
 
     Even assuming that plaintiff’s allegations are true, the

incident described by plaintiff is insufficient to support a

claim of a hostile work environment.   Looking at the “totality

of the circumstances,” the conduct described by plaintiff was

not “pervasive.”   Baloch, 550 F.3d at 1201.   Furthermore,

“isolated incidents (unless extremely serious) will not amount

to discriminatory changes in the terms and conditions of

employment.”   George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir.

2005).   Plaintiff in the instant case fails to show that his

workplace was “permeated with discriminatory intimidation,

ridicule, and insult that was sufficiently severe or pervasive

to alter the conditions of [his] employment and create an

abusive working environment.” Id. (emphasis added); see also

Lester v. Natsios, 290 F. Supp. 2d 11, 31 (D.D.C. 2003) (holding

that plaintiff failed to establish a prima facie case of hostile

work environment because the events alleged were “not,

individually or collectively, sufficiently ‘severe’ and

‘pervasive’ to move beyond ‘the ordinary tribulations of the

workplace’ and ‘create an abusive working environment’” (quoting

Faragher, 524 U.S. at 787-88)).    Accordingly, defendant’s motion

for summary judgment on plaintiff’s hostile work environment

claim is hereby GRANTED.




                                  25
 
 
        E.      Plaintiff’s Retaliation Claim

        The anti-retaliation provision of Title VII prohibits an

employer from “discriminat[ing] against any of his employees or

applicants for employment . . . because [the employee] has

opposed any practice made an unlawful employment practice by

this title, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this title.”       42 U.S.C. § 2000e-

3(a).    “To establish a prima facie case of retaliation, a

claimant must show that (1) she engaged in a statutorily

protected activity; (2) she suffered a materially adverse action

by her employer; and (3) a causal connection existed between the

two.”        Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).

        “In order to prevail upon a claim of unlawful retaliation,

an employee must show she engaged in protected activity, as a

consequence of which her employer took a materially adverse

action against her.”        Porter v. Shah, 606 F.3d 809, 817 (D.C.

Cir. 2010) (quoting Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.

Cir. 2009)).       An action is materially adverse in the context of

a retaliation claim, if plaintiff can show “that a reasonable

employee would have found the challenged action materially

adverse, which in this context means it well might have

dissuaded a reasonable worker from making or supporting a charge

                                     26
 
 
of discrimination.”   Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006); see also Steele v. Schafer, 535 F.3d

689, 696 (D.C. Cir. 2008); Baloch, 550 F.3d at 1198.

      As in the context of a discrimination claim,

“[r]etaliation claims based upon circumstantial evidence are

governed by the three-step test of McDonnell Douglas Corp. v.

Green, which requires the employee first to establish prima

facie the elements of retaliation.    If the plaintiff does so,

then the burden shifts to the employer to offer a legitimate,

nondiscriminatory reason for its action.”    Taylor, 571 F.3d at

1320(internal citations omitted).    If defendant rebuts

plaintiff’s claims in this manner, plaintiff’s retaliation

claims will not survive unless plaintiff is able to “produce

sufficient evidence that would discredit those reasons and show

that the actions were retaliatory.”    Baloch, 550 F.3d at 1200.

     In the instant case, plaintiff alleges that “[s]ince

complaining internally to Defendant’s human resources office and

since his complaint to [DCOHR], Defendant reprimanded Plaintiff

on numerous occasions by issuing him unfounded or otherwise

concocted warnings in retaliation for his engaging in the

protected activity of complaining of unlawful discrimination and

retaliation[.]”   Compl. ¶ 17; see also Compl. ¶ 25.




                                27
 
 
     In its motion for summary judgment, defendant first

challenges plaintiff’s prima facie case.     First, with respect to

plaintiff’s termination, defendant asserts that plaintiff has

failed to establish a causal connection between plaintiff’s

protected activity and his termination.    In particular,

defendant asserts that because plaintiff first reported the

racist comment in October 2005 but was not terminated until

seven months later, there is no causal connection.    Defendant

also attacks plaintiff’s prima facie case by arguing plaintiff

cannot maintain a retaliation claim based on receiving written

warnings.   Def.’s Reply 17.

     The Court finds defendant’s arguments concerning

plaintiff’s prima facie case unpersuasive.    First, this Circuit

has made it clear that negative performance assessments may

constitute materially adverse actions when they “affect

[plaintiff’s] position, grade level, salary, or promotion

opportunities.” Porter v. Shah, 606 F.3d 809, 817 (D.C. Cir.

2010); see also Baloch, 550 F.3d at 1191.    A “lower score on the

employee’s performance evaluation, by itself, is not

actionable,” for instance, “unless [the employee] can establish

that the lower score led to a more tangible form of adverse

action, such as ineligibility for promotional opportunities.”

Brown v. Snow, 440 F.3d 1259, 1265 (11th Cir. 2006) (relied upon

                               28
 
 
by this Circuit in Baloch, 550 F.3d at 1198 (emphasis added));

see also Hyson v. Architect of the Capitol, Civ. No. 08-979,

2011 U.S. Dist. LEXIS 88300, at *40 (D.D.C. Aug. 10, 2011) (“A

letter of counseling, written reprimand, or unsatisfactory

performance review, if not . . . a predicate for a more tangible

form of adverse action, will rarely constitute materially

adverse action under Title VII.” (emphasis added)).

     In the instant case, the Court concludes that plaintiff has

produced sufficient evidence to demonstrate that the written

warnings issued to plaintiff in November 2005 and January 2006

“led to a more tangible form of adverse action” because they

contributed to plaintiff’s termination, or at least that this is

a materially disputed fact.   The termination report explicitly

relies on plaintiff’s prior infractions.   Def.’s Ex. 25.

     Defendant’s argument relating to temporal proximity is

equally unpersuasive.   Particularly in light of the Court’s

conclusion that the written warnings issued to the plaintiff are

appropriately part of plaintiff’s prima facie case of

discrimination, the Court finds the timing of the November 2005

warning significant.    It is undisputed that Forsythe issued the

November 2005 warning to plaintiff merely two weeks after he

became aware of plaintiff’s internal complaint against him.

Furthermore, after plaintiff filed a charge of discrimination

                                 29
 
 
with the DCOHR in January 2006, plaintiff received an additional

warning on January 30, 2006.   The Court accordingly concludes

that plaintiff has established a prima facie case of

retaliation.

     In the alternative, defendant argues that it has produced

legitimate reasons for the conduct in question.    Here, the Court

is in agreement with the defendant.   The defendant has, as

discussed above in the context of plaintiff’s discrimination

claim, produced legitimate, non-discriminatory reasons for all

of the challenged conduct that occurred after plaintiff filed

complaints against his employer, i.e. the November 2005 and

January 2006 written reprimands and plaintiff’s termination in

May 2006.   Because defendant has offered legitimate, non-

discriminatory reasons, plaintiff’s retaliation claims will not

survive unless plaintiff is able to “produce sufficient evidence

that would discredit those reasons and show that the actions

were retaliatory.”   Baloch, 550 F.3d at 1200.    Plaintiff has

failed to do so.

     Plaintiff relies on substantially the same evidence used in

support of his discrimination claim to argue that a reasonable

jury could infer intentional retaliation.   For the same reasons

already articulated, the Court finds plaintiff’s arguments

unpersuasive.   In addition, plaintiff focuses on the temporal

                                30
 
 
proximity, emphasizing the short amount of time between when

Forsythe learned of the internal complaint plaintiff made and

when Forsythe issued a written warning to plaintiff in November

2005 for insubordination.                                      However, “positive evidence beyond

mere proximity is required to defeat the presumption that the

proffered explanations are genuine.”                                      Talavera v. Shah, 638 F.3d

303, 313 (D.C. Cir. 2011) (quoting Woodruff v. Peters, 482 F.3d

521, 530 (D.C. Cir. 2007).                                     Plaintiff has failed to provide any

evidence, other than sheer temporal proximity, that would allow

a reasonable jury to infer that Forsythe’s motive in issuing the

written warning was retaliatory.9                                     Accordingly, defendant’s

motion for summary judgment on plaintiff’s retaliation claim is

hereby GRANTED.

IV.           CONCLUSION

              For the foregoing reasons, the Court GRANTS IN PART AND

DENIES IN PART defendant’s motion for summary judgment.                                      An

Order accompanies this Memorandum Opinion.

SIGNED:                      Emmet G. Sullivan
                             United States District Court Judge
                             September 30, 2011

                                                            
9
     Although evidence that Forsythe used a racial slur was
      
sufficient circumstantial evidence from which a jury could infer
discriminatory intent with respect to the November 2005 warning,
the remark does not support an inference of retaliatory intent.
A racist remark by Forsythe, if proven, would demonstrate a
racially discriminatory animus; it would not demonstrate a
retaliatory animus.  
                                31
 
 
