                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA



 EVELYN PRIMAS,                                )
                                               )
                      Plaintiff,               )
                                               )
               v.                              )   Civil Case No. 09-2317 (RJL)
                                               )
 DISTRICT OF COLUMBIA, et al.,                 )
                                               )
                      Defendants.              )


                                          ~
                              MEMORANDUM OPINION
                                (July Zk_, 2012) [#44]

       Plaintiff, Evelyn Primas ("plaintiff'), brought this action against defendants

District of Columbia ("the District") and the Chief of the Metropolitan Police Department

Cathy Lanier ("Chief Lanier") (collectively, "defendants"), alleging discrimination based

on race, sex, and age in violation of Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C. §§ 2000(e) et seq., the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. §§ 621 et seq., and the District of Columbia Human Rights Act

("DCHRA"), D.C. Code§§ 2-1401 et seq. On September 12, 2011, defendants moved

for summary judgment on all remaining claims set forth in plaintiffs amended complaint.

For the following reasons, defendants' motion for summary judgment is GRANTED.

                                     BACKGROUND

       Plaintiff, an African-American woman over the age of forty, is a former

Metropolitan Police Official and former employee of the District. Am. Compl.      ~   4, ECF
No.6. She began working for the District's Metropolitan Police Department ("MPD") in

September 1978 and rose through the ranks until she was ultimately promoted to

Commander in the Court Liaison Division in 2004. !d. ,-r,-r 7-9.

        On September 13, 2007, Chief Lanier met with plaintiff and inquired how long she

intended to work before retirement. !d. ,-r 11. Plaintiff informed her that she intended to

work another two years. !d. At that time, Chief Lanier informed the plaintiff that her

position was going to be downsized two levels to the rank of Captain. !d. Plaintiff was

advised by Chief Lanier that she could remain in her job and retain her duties, but would

have to be demoted two levels to the Captain rank. !d. On September 18, 2007, plaintiff

met again with Chief Lanier to discuss the downsizing of her Court of Liaison position.

!d. ,-r 12. After this meeting, it was plaintiffs understanding that, if she chose not to take

the demotion to Captain, her only other choices were retirement or termination. !d.

Believing that "she could not afford to take a two-grade demotion, particularly when she

was close to retirement," plaintiff chose to retire rather than continue employment with

the District. !d. ,-r,-r 12-13.

        On September 23, 2007, Chief Lanier announced that Captain Marcus Westover, a

younger, white male, had been promoted to Inspector, the rank in between Captain and

Commander, and placed in plaintiffs position in charge of the Court Liaison Division.

!d. ,-r 14. On September 25, 2007, plaintiff wrote a letter to Chief Lanier informing her

that plaintiff believed her actions were discriminatory and illegal. !d. ,-r15. Upon

receiving plaintiffs letter, Chief Lanier informed plaintiff that, if she wished, she could




                                              2
remain with the police department at the rank of Inspector in a different assignment. !d.

~   16.

          Plaintiff filed a timely complaint with the Equal Employment Opportunity

Commission and received a right-to-sue letter dated September 14, 2009. !d.     ~18.


Plaintiff filed this suit on December 7, 2009. See Compl., ECF No. 1. On June 19, 2010,

this Court dismissed the plaintiffs official-capacity DCHRA claim against Chief Lanier,

as well as the plaintiffs DCHRA claims against the District. See Mem. Op., June 19,

2010, ECF No. 18. Defendants now move for summary judgment on all remaining

claims set forth in plaintiffs amended complaint. For the following reasons, the motion

is GRANTED.

                                    LEGAL STANDARD

          Summary judgment is appropriate when, based on the record, there is no genuine

issue as to any material fact, and the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(a); Hussain v. Principi, 344 F. Supp. 2d 86, 94 (D.D.C.

2004 ). Summary judgment is not available, however, when there are factual disputes that

may determine the outcome of the case under the governing law or when sufficient

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

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a

motion for summary judgment, the "evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in [her] favor." !d. at 255.

          The moving party has the initial burden of demonstrating that there is no genuine

issue of material fact to be decided with respect to any essential element of the


                                               3
nonmoving party's claim. !d. at 250. Once that burden is met, the nonmoving party must

set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The nonmoving party's opposition may not rest upon

the mere allegations or denials of the pleadings, but must be supported by affidavits or

other competent evidence. !d. By pointing to the absence of evidence proffered by the

nonmoving party, a moving party may succeed on summary judgment. !d. at 322-23.

                                       DISCUSSION

       Defendants seek summary judgment on all claims that remain in plaintiff's

amended complaint. For the reasons set forth below, defendants' motion for summary

judgment is granted.

       1. Plaintiff's Title VII Race and Sex Discrimination Claims Against the District

       Plaintiff contends that, based on plaintiff's race and sex, the District downgraded

her position as the Director of Court Liaison by two ranks and assigned a less-qualified

white male at a higher rank and pay grade in her stead, in violation of Title VII. The

District counters that it had legitimate, non-discriminatory reasons for taking the

challenged actions, and the plaintiff has failed to rebut such reasons or produce any

evidence of racial or sexual discrimination on the District's part. I agree.

       Title VII makes it unlawful for an employer to "discriminate against any

individual with respect to his compensation, terms, condition, or privileges of

employment, because of such individual's race, color ... sex, or national origin." 42

U.S.C. § 2000e-2(a)(l). Until recently, under Title VII, in the absence of direct evidence

of discrimination, a plaintiff could indirectly prove discrimination under the burden-


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shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

also Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). However,

our Circuit has since simplified the district court's inquiry. See Brady v. Office of the

Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008). Under the new approach, if

an employee has suffered an adverse employment action and the employer asserts a

legitimate, non-discriminatory reason for the action, at the summary judgment stage, the

Court need only determine whether "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[.]" !d. at 494; see also Jones v.

Bernanke, 557 F.3d 670, 678-79 (D.C. Cir. 2009); Piroty v. Chairman, Broad. Bd. of

Governors, 815 F. Supp. 2d 95, 98 (D.D.C. 2011). 1

        The District argues that the plaintiff did not suffer an adverse employment action

under Title VII, and even if she did, the District had a legitimate, non-discriminatory

reason for its challenged actions. To be considered an "adverse employment action"

under Title VII, a particular act must constitute a "significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different



1 The evidence that plaintiff puts forth may include a combination of "evidence
establishing the plaintiffs prima facie case", "evidence attack[ing] the employer's
proffered explanation for its actions" and "any further evidence of discrimination that
may be available to the plaintiff, such as independent evidence of discriminatory
statements or attitudes on the part ofthe employer." Holcomb v. Powell, 433 F.3d 889,
897 (D.C. Cir. 2006); see also Washington v. Chao, 577 F. Supp. 2d 27, 39 (D.D.C.
2008).


                                               5
responsibilities, or a decision causing a significant change in benefits."2 Courts have held

that actions such as demotion, undesirable reassignment, or a reduction in salary or

benefits qualify as adverse employment actions due to their impact on the terms,

conditions or privileges of employment. 3 The plaintiff has established that, in September

2007, the District downgraded her position as director of the Court Liaison Division from

the rank of Commander to Captain, a two-rank decrease coupled with a $20,000 per year

salary reduction that would impact plaintiffs retirement income, and appointed Westover

as the new director of the Court Liaison Division at a higher rank and pay grade upon her

departure. See Am. Compl.    ~~   11-12.; Pl.'s Opp'n to Defs.' Mot. for Summ. Judgment,

Ex. 1 at 59-60, 71, 82-83, ECF No. 53 (hereinafter "Pl.'s Opp'n"); Pl.'s Opp'n, Ex. 2 at

22-24, 32-33, 151-52; Pl.'s Opp'n, Ex. 12. A proposed demotion coupled with a salary

decrease squarely fits within the confines of an adverse employment decision, see Baloch

v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008), and the fact that plaintiff retired


2 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also Mack v. Strauss,
134 F. Supp. 2d 103, 112 (D.D.C. 2001) (citing Brown v. Brody, 199 F.3d 446, 454-55
(D.C. Cir. 1999)) ("Title VII plaintiffs must demonstrate that an allegedly adverse
personnel action had a tangible impact on the terms and conditions of a plaintiffs
employment").
3 See Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998); Russell v. Principi, 257
F.3d 815, 818-19 (D.C. Cir. 2001); see also Brown v. Brody, 199 F.3d 446, 455-56 (D.C.
Cir. 1999) (differentiating between changes in assignments or work-related duties that are
accompanied or unaccompanied by a salary decrease, with the former being included in
the category of adverse employment decisions); Mungin v. Katten Muchin & Zavis, 116
F.3d 1549, 1556-57 (D.C. Cir. 1997) (same); Ohal v. Bd. ofTrustees ofUniv. ofDist. of
Columbia, 100 Fed. Appx. 833, 834 (D.C. Cir. 2004) (citing Crady v. Liberty Nat'/ Bank
& Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)) ("A materially adverse change
might be indicated by ... a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits ... or other indices that might be unique to
a particular situation").


                                              6
before the decision took effect is of no matter because the demotion was neither

speculative nor hypothetical. 4

       Although the plaintiff suffered an adverse employment action when her position

was demoted5, the District has asserted a legitimate, non-discriminatory justification for

the demotion. The record reflects that Chief Lanier instituted a complete reorganization

of the MPD Command Staff during her first year in office because she believed that the

command structure had become "too top heavy" and that it "needed to be downsized."

See Mem. in Support ofDefs.' Mot. for Summ. Judgment at 17-18, ECF No. 44

(hereinafter "Defs.' Mem.); Defs.' Mem., Ex. 2 at Interrogatory No. 5; Pl.'s Opp'n, Ex. 2

at 21-22. In pursuit of that goal, the evidence shows that Chief Lanier eliminated the

Regional Operation Commands North, Central, East and Operational Support Command,

reduced the number of Assistant Chiefs from eight to six, eliminated two Senior

Executive Director positions that were the equivalent of Assistant Chiefs, and

downgraded some positions, including the Court Liaison Director position, because "it


4 Compare Harris v. Wackenhut Servs., Inc., 590 F. Supp. 2d 54, 70-71 (D.D.C. 2008)
(holding that a definite pending transfer could constitute an adverse action even though
plaintiff never occupied the transfer position and resigned several days after being
informed of the reassignment) with Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 74-75
(D.D.C. 2002) (holding that a proposed scheduling change was not an adverse action
because it was not effective immediately, it was never implemented, and the plaintiff
continued to serve in normal role as shift supervisor).
5 Because the Court agrees with the plaintiff, namely that she suffered an adverse

employment action when her position was demoted by the District, the Court need not
discuss plaintiffs arguments that premise the occurrence of an adverse employment
action on constructive discharge. See Pl.'s Opp'n at 35-42. To the extent that the
plaintiffs constructive discharge arguments are an attempt to add a substantive claim
based thereon to the case, however, such an attempt must fail. See Am. Compl., ECF No.
6 (failing to include a constructive discharge count against either defendant).


                                             7
was determined that the rank of Commander was not appropriate given the size of the

Court Liaison Division and the responsibilities thereunder." Defs.' Mem., Ex. 2 at

Interrogatory Nos. 5, 13; Pl.'s Opp'n, Ex. 2 at 14-22; Pl.'s Opp'n, Ex. 15 at 1. By

comparison, plaintiff herself does not produce any evidence or explanation as to how race

or sex played a role in the alleged discrimination by the District other than bald assertions

that it did, and has done nothing to rebut the defendant's legitimate, non-discriminatory

justification for its disputed behavior. As such, a reasonable jury could not find that the

District's reorganization-based explanation for demoting the plaintiff's position and

appointing Westover in her stead is pretextual and that race or gender was a determining

factor in the challenged employment decision.

       For instance, the plaintiff takes issue with the fact that the District chose to demote

the plaintiff's position, instead of selecting her for one of the vacant Commander

positions, and offers this as evidence of pretext for racial or gender discrimination against

her. See Pl.'s Opp'n at 22-23. But the plaintiff's evidence counteracts her allegation that

the District discriminated against her on the basis of her race (African-American) or

gender (female), as three of the five employees who were placed in the vacant

Commander positions as part of the reorganization plan were African-American, and one

of the five was an African-American female. 6 The plaintiff also argues that the District's


6 See Pl.'s Opp'n, Ex. 16 at Interrogatory Nos. 2, 3, 4; Pl.'s Opp'n, Ex. 17; see also
McNally v. Norton, 498 F. Supp. 2d 167, 182 (D.D.C. 2007) (quoting Fischbach v. D.C.
Dep't ofCorrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996)) ("[e]ven if a court believes
that the employer used poor selection procedures, it may not second-guess an employer's
personnel decision absent [a] demonstrably discriminatory motive") (internal quotations
and citations omitted).


                                              8
"sham offer of an Inspector position" to the plaintiff, which was apparently occupied at

the time it was offered, demonstrates an "attempt[ ] to hide discriminatory motives for

demoting [p]laintiff." /d. at 19-21. But even if the offer of the Inspector assignment was

in fact illusory, it does not tie plaintiffs race or sex to the District's decisionmaking, nor

does it show that the District's reorganization plan was a pretext for discrimination. 7

       Because the plaintiffhas produced no evidence of racial or sexual discrimination

on the part of the District beyond her own subjective opinion, there is no material dispute

on the issue of racial or gender discrimination and summary judgment on plaintiffs Title

VIII discrimination claims against the District is appropriate as a matter of law.

       2. Plaintiffs DCHRA Race and Sex Discrimination Claims Against Chief
          Lanier

       The legal standard for discrimination under the DCHRA is substantively the same

as the standard under Title VII. See Gaujacq v. Electricite de France Int'l North

America, Inc., 572 F. Supp. 2d 79, 87 n.5 (D.D.C. 2008); Vatel v. Alliance ofAuto Mfrs.,

627 F.3d 1245, 1246 (D.C. Cir. 2011). Accordingly, defendants' motion with respect to

the plaintiffs DCHRA race and sex discrimination claims against Chief Lanier in her




7 See Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (noting that the "critical
inquiry" is whether discrimination "was a factor in the employment decision at the
moment it was made") (emphasis in original); Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (explaining that the plaintiff at all times has the ultimate
burden of persuading the factfinder that the defendant engaged in intentional
discrimination).


                                               9
individual capacitl are subject to the same analysis as plaintiffs Title VIII race and sex

discrimination claims against the District. See supra, 4-9.

       For the same reasons that plaintiff cannot carry her burden with regard to her Title

VIII race and sex discrimination claims against the District, plaintiff cannot carry her

burden with regard to her DCHRA race and sex discrimination claims against Chief

Lanier in her individual capacity. The plaintiffs DCHRA race and gender discrimination

claims against Chief Lanier thus fail as a matter of law.

       3. Plaintiff's ADEA Age Discrimination Claim Against the District and

          DCHRA Age Discrimination Claim Against Chief Lanier

       Both the ADEA and the DCHRA make it unlawful for an employer to

discriminate against an employee based on age. See 29 U.S.C. § 623(a)(l); D.C. Code§

2-1402.11(a)(l). Age discrimination claims under the ADEA and DCHRA are analyzed

in the same way sex and gender discrimination claims are analyzed under the federal anti-

discrimination laws. See Piroty, 815 F. Supp. 2d at 98; Murphy v.

PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 16, 26 n.22 (D.D.C. 2008).

Accordingly, if the defendant, at the summary judgment phase, asserts a legitimate, non-

discriminatory reason for the challenged behavior, as the District and Chief Lanier have

done here, see supra, 7-9, the Court must limit its inquiry to whether the plaintiff has

presented sufficient evidence for a reasonable factfinder to conclude that the defendant's



8Plaintiffs official-capacity DCHRA claims against Chief Lanier have already been
dismissed by this Court. See Mem. Op. at 4-5, ECF No. 18 ("Plaintiffs remaining claim
against Chief Lanier is her individual-capacity DCHRA claim").


                                             10
rationale is not genuine and that age discrimination actually motivated the employer's

decision. Brady, 520 F .3d at 494.

       Unfortunately for the plaintiff, she has presented no evidence to cast doubt on the

District or Chief Lanier's nondiscriminatory reasons for their decisions, merely

conclusory allegations that the plaintiff was terminated by the defendants due to her age.

See Defs.' Mem. at 13; Defs.' Mem., Ex. 4, Interrogatory No.4. Indeed, the plaintiff

effectively concedes the defendants' arguments by failing to counter any of the

defendants' assertions regarding age-based discrimination in its opposition. 9 The Court

would note, however, that no rational jury could find from the existing record that the

District or Chief Lanier, in her individual capacity, demoted the plaintiffs position, and

promoted Westover to plaintiffs former assignment at a higher rank, on the basis of

plaintiffs age. See Mulhern v. Gates, 525 F. Supp. 2d 174, 186 (D.D.C. 2007)

(unsupported allegations and self-serving, conclusory statements do not create genuine

disputes). And surely the three-year age gap between the plaintiff and Westover also




9 See Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997)
("[ w ]here the district court relies on the absence of a response as a basis for treating the
motion as conceded, we honor its enforcement of the rule"); Buggs v. Powell, 293 F.
Supp. 2d 135, 141 (D.D.C. 2003) ("[i]t is understood in this Circuit that when a plaintiff
files an opposition to a dispositive motion and addresses only certain arguments raised by
the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded"); Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002); Local Rules of
the U.S. Dist. Court for the Dist. of Columbia, LCvR 7(b) ("If ... a[n] [opposing]
memorandum is not filed within the prescribed time, the Court may treat the motion as
conceded").


                                              11
precludes any accusation that age played a significant role in the defendants'

decisionmaking. 10

       Accordingly, plaintiffs ADEA and DCHRA age discrimination claims against the

District and Chief Lanier in her individual capacity respectively cannot survive summary

judgment, and are dismissed as a matter of law. 11

                                     CONCLUSION

       Thus, for all of the foregoing reasons, defendants' motion for summary judgment

is GRANTED. An appropriate order shall accompany this memorandum opinion.

                                                     {t:,,.. Jilt, .. J
                                                 RijHARD1G?ON~
                                                 United States District Judge




10 See Pl.'s Opp'n, Ex. 16, Interrogatory Nos. 2, 4; Pl.'s Opp'n, Ex. 17; McNally v.
Norton, 498 F. Supp. 2d 167, 181 n.l4 (D.D.C. 2007) (an inference of age discrimination
can only be drawn when a plaintiff is treated less favorably than a person who is younger
by ten years or more).
11 In June 2010, this Court dismissed the plaintiffs claims for punitive damages against

both defendants. See Mem. Op. at 5, ECF No. 18. Accordingly, no further ruling on
punitive damages is necessary.


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