                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   WILLIE M. JENKINS,

                             Plaintiff,

                        v.

   JOSEPH NEE
                                                      Civil Action 07-01003 (HHK)
   and

   DISTRICT OF COLUMBIA HOUSING
   AUTHORITY,

                             Defendants.



                                    MEMORANDUM OPINION

         Plaintiff Willie Jenkins brings this action against his employer, the District of Columbia

Housing Authority (“DCHA”), and his supervisor, Joseph Nee, in Nee’s individual capacity,

alleging discrimination under 42 U.S.C. §§ 1981 and 1983 (counts I, II, and III), intentional

infliction of emotional distress (count IV), defamation (count V), intentional interference with

contractual relations (count VI), and injunctive relief (count VII).

         Before the court is defendants’ motion for summary judgment [# 32].1 Jenkins does not

dispute defendants are entitled to summary judgment on counts IV–VII. Upon consideration of

the motion, the opposition thereto, the record of this case, and the parties’ oral arguments of July

24, 2009, the court concludes that the motion must be granted.


         1
         The court granted defendants’ motion for summary judgment previously. The motion is
before the court again following plaintiff’s unopposed motion to reconsider.

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                                I.   FACTUAL BACKGROUND

       Jenkins is a Black male who has worked for DCHA as a Utility Systems Operator since

2005. A “Utility Systems Repairer-Operator” has repair and maintenance responsibilities as well

as a responsibility to “[p]erform other related duties as assigned.” (Pl.’s Ex. 5 at 57–58 (Position

Description).) Jenkins’s second-level supervisor is Lyle Griffith; Jenkins’s third-level supervisor

is Joseph Nee. Since Nee was hired in 2005, Nee’s assignments to Jenkins include cleaning

boiler rooms and performing tasks late in the day in far reaches of the city, forcing Jenkins to

work beyond regular hours. (Pl.’s Ex. 1 at 16, 17–18 (Jenkins Dep., Dec. 9, 2008).) Jenkins

testified that only he and one other co-worker have ever been asked to complete such

assignments. (Pl.’s Ex. 6 at 61 (Jenkins Aff.).)

       Jenkins has also testified Nee used “racial overtones,” and terms like “you people” and

“boys” when speaking to Jenkins. (Def.’s Ex. 3 at 4–5 (Jenkins Dep., Jan. 23, 2009).) When

asked to comment on how Nee’s speech implicated Jenkins’s race, Jenkins testified that “[i]t is

the way [Nee] talked as somebody demeaning you. A white guy talking to a black guy in a racial

way saying it. The wat [sic] he is using his words.” (Id. at 5). But Jenkins also testified:

       [Jenkins’s counsel:] Have you witnessed Joseph [Nee] act differently towards people not
       of color than he has towards people – I’m sorry, acted differently towards people with
       color than Caucasians?

       [Jenkins:] No, I haven’t witnessed that.

(Def.’s Ex. 2 at 37 (Jenkins Dep., Dec. 9, 2008).) Nevertheless, around February 2007, Jenkins

filed several Equal Employment Opportunity Commission (“EEOC”) claims concerning these

allegations. (Pl.’s Ex. 1 at 21 (Jenkins Dep., Dec. 9, 2008).)

       Seven months later, two disagreements took place between Jenkins and Griffith. The first


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was prompted by Jenkins’s absence from his assigned duty station. (Pl.’s Ex. 1 at 26 (Jenkins

Dep. Dec. 9, 2008); (Pl.’s Ex. 1 at 33 (Notice of Suspension).) The second took place later that

afternoon in Griffith’s office. Griffith stated that Jenkins entered the office and accused him of

disrespecting Jenkins. Jenkins also threatened Griffith, and allegedly called him a “big dummy

and faggot.” (Id. at 33.) According to Griffith, a DCHA plumber had to pull Jenkins out of the

office. (Id. at 34.) Jenkins testified he did not remember referring to Griffith as either “big

dummy” or “faggot,” but admits both he and Griffith “raised our voices.” (Pl.’s Ex. 1 at 27

(Jenkins Dep., Dec. 9, 2008).)

        On November 29, 2007, Griffith delivered a notice of disciplinary action to Jenkins,

ordering Jenkins to serve a 14-day suspension due to “[u]se of abusive or offensive language or

discourteous or disrespectful conduct toward the public or other employees.” (Id. at 33 (Notice

of Suspension).) In the notice, Griffith recounted the duty station absence and the confrontation

in Griffith’s office, and explained that “[d]ue to the fact that this is not the first time [Jenkins

has] made threatening remarks toward me, it is necessary to take appropriate action.” (Id. at 34.)

        Jenkins filed complaints in this court alleging Nee and DCHA discriminated against

Jenkins in his work assignments, then suspended Jenkins in response to his EEOC claims.

                                           II. ANALYSIS

        Once there has been adequate time for discovery, a defendant may move for summary

judgment at any time. Fed. R. Civ. P. 56(b); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The court must grant summary judgment if it concludes there is no genuine issue of material fact

in dispute, and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Conversely, if there is sufficient evidence for a

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reasonable jury to find for the non-moving party, the court must deny summary judgment; mere

allegations, however, are insufficient to defeat the motion. Id. at 248, 255–56.

       An employee bringing a claim under § 1981 or § 1983 must make a prima facie showing

of discrimination or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

see also Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (§ 1981 case applying

McDonnell Douglas, superceded in part by the Civil Rights Act of 1991); see also Jo v. District

of Columbia, 582 F. Supp. 2d 51, 60 (D.D.C. 2008) (§ 1983 case applying McDonnell Douglas).

The employer can rebut this prima facie showing by presenting “some legitimate,

nondiscriminatory reason” for the action in dispute. McDonnell Douglas, 411 U.S. at 802. The

employee can then rebut the employer’s showing by demonstrating that the asserted reason is

pretextual. Id. at 805.

       In determining whether to grant summary judgment, however, the D.C. Circuit has

stressed that a court need not consider whether the employee has made a prima facie showing

once the employer articulates a legitimate, non-discriminatory reason for the action in question.

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493–494 (D.C. Cir. 2008).2 Under Brady, the

only question before the court is:

       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, color, religion, sex or national origin?

Id. at 494 (emphasis added).




       2
           Brady involved a race discrimination claim; the D.C. Circuit has also applied Brady to
retaliation claims. See, e.g., Jones v. Bernanke, 557 F.3d 670, 672 (D.C. Cir. 2009).

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       The court has considered the record of the case, the motion for summary judgment, the

opposition thereto, and the parties’ oral arguments, and finds defendants are entitled to summary

judgment. Jenkins alleges he was discriminated against and retaliated against when he was

suspended, when he was ordered to clean boiler rooms, and when he was required to work

beyond regular hours. DCHA has offered legitimate, non-discriminatory reasons for all these

actions. Jenkins has not submitted evidence from which a reasonable jury could conclude these

reasons were pretext. Accordingly, DCHA is entitled to summary judgment.

                                     III.   CONCLUSION

       For the foregoing reasons, the court concludes that defendants’ motion for summary

judgment must be granted in full. An appropriate order accompanies this memorandum opinion.




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