                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
Gregory Taborn,                           )
                                          )
      Plaintiff,                          )
                                          )
             v.                           ) Civil No. 14-cv-001378 (APM)
                                          )
Washington Metropolitan Area              )
Transit Authority,                        )
                                          )
      Defendant.                          )
_________________________________________ )

                                   MEMORANDUM OPINION

I.     INTRODUCTION

       Plaintiff Gregory Taborn filed this lawsuit under Title VII of the Civil Rights Act of 1964

against his former employer, Defendant Washington Metropolitan Area Transit Authority

(“WMATA”). This case stems from an incident that occurred on October 5, 2013, when Plaintiff,

a bus operator, became involved in a verbal altercation with a number of WMATA managers and

supervisors over his apparent failure to turn on the interior lights of his assigned bus. Defendant

argues that Plaintiff was terminated as a result of his conduct during that altercation, which violated

a number of workplace rules. Plaintiff, on the other hand, contends that he was fired for an entirely

different reason: because months earlier, he had filed a complaint with the Equal Employment

Opportunity Commission alleging that WMATA had not promoted him because of his age, race,

and gender.

       The court now considers Defendant’s Motion for Summary Judgment. Having reviewed

the parties’ briefing and the evidence, the court finds that no reasonable jury could conclude that

WMATA unlawfully retaliated against Plaintiff. Plaintiff has produced no evidence showing that
the official who fired him actually knew about his prior complaint; therefore, she could not have

retaliated against him. The court therefore grants Defendant’s Motion for Summary Judgment.

II.     BACKGROUND

        A.         Factual Background

        Plaintiff Gregory Taborn began working as a bus operator for WMATA in December 1994.

Def.’s Mot. for Summ. J., ECF No. 14 [hereinafter Def.’s Mot.]; Def.’s Stmt. of Material Facts,

ECF No. 14 [hereinafter Def.’s Stmt.], ¶ 1; Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 15

[hereinafter Pl.’s Opp’n]; Pl.’s Stmt. of Material Facts in Dispute, ECF No. 15 [hereinafter Pl.’s

Stmt.], ¶ 1. On July 30, 2013, Plaintiff filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”) alleging that WMATA had failed to promote him because of his age, race,

and gender (the “July EEOC Complaint”). Def.’s Stmt. ¶ 2; Pl.’s Stmt. ¶ 2.

        About two months later, on October 5, 2013, Plaintiff had a verbal confrontation with

multiple WMATA managers and supervisors. The details of the confrontation are immaterial. It

suffices to say for present purposes that the confrontation arose when WMATA employees accused

Plaintiff of failing to turn on the interior lights of the bus that he was driving. Def.’s Stmt. ¶ 4;

Pl.’s Stmt. ¶ 4.

        On October 22, 2013, WMATA Acting Bus Superintendent, Jessica Pitt, terminated

Plaintiff’s employment because of the October 5th incident. Def.’s Stmt. ¶ 5; Pl.’s Stmt. ¶ 5. Pitt

determined that Plaintiff’s conduct had violated numerous workplace rules.            Among other

violations, she concluded that he had failed to “perform [his] duties as expected of a professional

bus operator”; had “compromised safety”; and had “displayed unprofessional conduct in the

presence of customers as well as managers.” Def.’s Mot., Ex. 2, Memorandum of Dismissal from

Acting Superintendent Jessica Pitt to Gregory Taborn, ECF No. 14-2 [hereinafter Memo of



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Dismissal], at 7. Although Plaintiff defended himself by asserting that the antagonism and

“bullying tone” of the WMATA managers who were involved—rather than his own behavior—

had instigated the confrontation, see Pl.’s Opp’n., Ex. 4, October 9, 2013, Letter from Gregory

Taborn to Ted Harris, ECF No. 15-4 [hereinafter Taborn Letter], Pitt nevertheless dismissed him.

Memo of Dismissal at 7; Def.’s Stmt. ¶ 5; Pl.’s Stmt. ¶ 7. Two days after his termination, Plaintiff

filed a second complaint with the EEOC (the “October EEOC Complaint”), this time claiming he

was fired in retaliation for filing the July EEOC Complaint. Def.’s Stmt. ¶ 8; Pl.’s Stmt. ¶ 7.

       At some point, Plaintiff filed a grievance with his union representative, which resulted in

an arbitration proceeding. Pl.’s Stmt. ¶ 11; see also Pl.’s Opp’n, Ex. 2, June 12, 2015 Opinion by

Arbitrator Andrew M. Strongin, ECF No. 15-2 [hereinafter Arbitration Opinion]. The Arbitrator

concluded that Plaintiff’s behavior constituted “serious insubordination” and was “unacceptable.”

Arbitration Opinion at 15. He also found, however, that the WMATA managers involved in the

incident had “instigated and [had] provoked” Plaintiff and had themselves failed to follow certain

WMATA policies. Id. at 18. As a result, the Arbitrator reduced Plaintiff’s discipline from

termination to a 30-day suspension without pay. Id. at 20. Nevertheless, Plaintiff has yet to return

to work at WMATA. Pl.’s Stmt. ¶ 13.

       B.      Procedural History

       On May 23, 2014, Plaintiff filed a pro se complaint in D.C. Superior Court. See Compl.,

ECF No. 1-4. The Complaint alleged a single claim: that Plaintiff “was terminated because he

engaged in protected activity when he filed an EEOC Complaint alleging age, gender, color and

race discrimination on July 30.” Pl.’s Opp’n at 5. Defendant then removed the case to this court

on August 13, 2014. See Notice of Removal, ECF No. 1.




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III.   LEGAL STANDARD

       Federal Rule of Civil Procedure 56 provides that a court should grant summary judgment

if “there is no genuine dispute as to any material fact and [the moving party] is entitled to judgment

as a matter of law.” Fed. R. Civ. Pro. 56(a)). A material fact is one that is capable of affecting the

outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, [ ] on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary

judgment “bears the initial responsibility of informing the district court of the basis for its motion”

and identifying those portions of the record that it believes “demonstrate the absence of a genuine

issue of material fact.” Id. at 323.

       Once the moving party has made an adequate showing that a fact cannot be disputed, the

burden shifts to the party opposing summary judgment to “set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (citation and internal quotation marks

omitted) (footnote omitted). The nonmoving party may oppose the motion using “any of the kinds

of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from

this list that one would normally expect the nonmoving party to make the showing to which [the

Court has] referred.” Celotex Corp., 477 U.S. at 324. “The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255

(citation omitted). However, “to defeat a motion for summary judgment, the non-moving party

must offer more than mere unsupported allegations or denials.” Dormu v. District of Columbia,

795 F. Supp. 2d 7, 17 (D.D.C. 2011) (citing Celotex, 477 U.S. at 324). In other words, if the non-



                                                  4
movant’s evidence is “merely colorable” or “not significantly probative,” summary judgment may

be granted. Anderson, 477 U.S. at 249-50. Summary judgment, then, is appropriate when the non-

moving party fails to offer “evidence on which the jury could reasonably find for the [non-

movant].” Id. at 252.

IV.    DISCUSSION

       Plaintiff claims that Defendant’s decision to terminate him constituted unlawful retaliation

in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a). Title VII prohibits

employers from retaliating against an employee “because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. § 2000e-3(a). To show unlawful retaliation under Title VII, “a plaintiff

must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took

a materially adverse action against him; and (3) that the employer took the action ‘because’ the

employee opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). Once

an employer comes forward with a legitimate, non-retaliatory reason for the challenged

employment action, as Defendant has done here, the court must decide whether or not the

employee has proven intentional discrimination or retaliation. Morris v. McCarthy, 825 F.3d 658,

668 (D.C. Cir. 2016) (citations omitted). A plaintiff can survive summary judgment “by providing

enough evidence for a reasonable jury to find that the employer’s proffered explanation was a

pretext for retaliation or discrimination.” Id. (citing Hamilton v. Geithner, 666 F.3d 1344, 1351

(D.C. Cir. 2012)).

       Plaintiff’s retaliation claim fails for a simple reason: he has not offered any evidence from

which a reasonable juror could infer that either Jessica Pitt—the person who fired him—or any



                                                5
other WMATA supervisor involved in the October 5th altercation had knowledge of his protected

activity. Morris, 825 F.3d at 673 (“To establish . . . [a] retaliation claim, an employee must have

engaged in protected participation or opposition activity about which the employer knew.”), citing

Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009) (“We agree that Jones’s supervisors could

not have retaliated against him unless they had knowledge of his protected activity.”). Plaintiff

admitted as much during his deposition. When asked how he knew that his supervisors were aware

of his July EEOC Complaint, Plaintiff answered that “[t]here [were] people telling me ‘I heard you

did this’” and he further pointed to “the overall treatment” at his workplace. Def.’s Mot., Ex. 1,

Deposition of Gregory Taborn, ECF No. 14-1 [hereinafter Taborn Dep.] at 107. Yet when asked

if any of his supervisors mentioned that they were upset or were going to do something to him

because he had filed the July EEOC Complaint, he responded “[t]hey didn’t mention it, no.” Id.

at 108. Notably, in a letter written to a different supervisor just days after the October 5th incident,

Plaintiff did not mention his July EEOC Complaint or that the WMATA employees with whom

he argued were aware of his complaint. See Taborn Letter. In short, Plaintiff has not come forward

with any evidence—such as his own affidavit or deposition testimony from Pitt—establishing that

Pitt or any other WMATA supervisor involved in the altercation was aware of his initial EEOC

complaint.

       The evidence that Plaintiff’s supervisors knew about his protected activity consists of one

vague allegation by Plaintiff that unnamed people at his workplace told him at an unspecified time

that they were aware of his EEOC filing. There is no evidence whatsoever that Pitt was aware of

Plaintiff’s July EEOC Complaint. Plaintiff has not offered nearly enough evidence to allow a

reasonable jury to infer that Plaintiff was fired because of his protected activity. See McGrath,

666 F.3d at 1380.



                                                   6
        Plaintiff argues that the temporal proximity—about three months—between his July EEOC

Complaint and his termination is enough to infer retaliation and allow his action to survive

summary judgment. Pl.’s Opp’n at 7-8. On this point, Plaintiff is wrong. The case law in this

circuit is clear that absent additional evidence, the fact that a few months passed between the

protected activity and the adverse employment action is insufficient to allow a complaint to survive

summary judgment. See Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (finding that the

passage of two and a half months between the protected activity and the adverse action was

insufficient to support retaliation based on temporal proximity alone); see also Woodruff v. Peters,

482 F.3d 521, 530 (D.C. Cir. 2007) (“[P]ositive evidence beyond mere proximity is required to

defeat the presumption that the proffered explanations are genuine.”). In any event, the temporal

proximity between Plaintiff’s protected activity and his firing cannot cure his failure, discussed

above, to demonstrate that Pitt, or anyone else involved in the October 5 altercation, knew that he

had filed the July EEOC complaint.

        Finally, to the extent that Plaintiff argues that Arbitrator’s findings enable him to defeat

summary judgment, see Pl.’s Opp’n at 5, he is incorrect. The Arbitrator’s lengthy opinion absolved

Plaintiff of some workplace rules violations and reduced his discipline from termination to a 30-

day suspension without pay. See Arbitration Opinion. It did not, however, address the issue before

the court— whether Defendant retaliated against Plaintiff for filing a complaint with the EEOC.

Id. The Arbitrator made no finding that Pitt, or any other WMATA supervisor, was aware of his

protected Title VII activity. Thus, the Arbitrator’s ruling provides no evidence from which a

reasonable juror could infer that Defendant’s legitimate, non-discriminatory reason for terminating

Plaintiff was pretext for retaliation.




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V.    CONCLUSION

      For the foregoing reasons, the court grants Defendant’s Motion for Summary Judgment.

A separate order accompanies this Memorandum Opinion.




Dated: September 19, 2016                       Amit P. Mehta
                                                United States District Judge




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