                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ENRIQUE BRATHWAITE,           )
                              )
          Plaintiff,          )
                              )
     v.                       )              Civil Action No. 06-1367 (GK)
                              )
VANCE FEDERAL SECURITY        )
SERVICES, INC.                )
                              )
          Defendant.          )
______________________________)


                                MEMORANDUM OPINION


      Plaintiff Enrique Brathwaite (“Plaintiff”) brings this action

against his former employer, Vance Federal Security Services, Inc.

(“Defendant”), pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C. §

1981.      Plaintiff alleges that Defendant violated Title VII (Count

I),   42    U.S.C.   §   1981    (Count   II),   and   the   public   policy   of

Washington, D.C. (Count III) by discriminating against him on the

basis of his race.

      This matter is now before the Court on Defendant’s Motion for

Summary Judgment [Dkt. No. 9].            Upon consideration of the Motion,

Opposition, Reply, the entire record herein, and for the reasons

stated below, Defendant’s Motion is granted.
I.       Background1

         On or about September 15, 2003, Defendant employed Plaintiff,

an African-American male, as a security guard and assigned him to

work at Walter Reed Army Medical Center in Washington, D.C.

         Defendant requires its employees to abide by its “Standards

of Conduct” policy.      These Standards state that “[a]ssault” is

“inappropriate” conduct that “can result in any form of discipline,

up to and including immediate termination, as decided in the

discretion of Chenega/Vance Federal Security Services.”

         Plaintiff signed the “Standards of Conduct” form on February

26, 2004.    Def.’s Mot., Ex. B-1.       Plaintiff “acknowledged” that he

was “required” to comply with these Standards and that if he

violated them, Vance had the sole power to determine an appropriate

penalty.

         Between December 2003 and February 2004, Plaintiff was cited

for the following three disciplinary infractions.2         On December 6,


     1
        Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h) and the
parties’ summary judgment papers.
     2
          Plaintiff does not dispute that he received three
“counseling forms.”     Pl.’s Response to Def.’s Statement of
Undisputed Material Facts ¶ 6-8. Defendant uses these counseling
forms to document disciplinary citations. Plaintiff does dispute
the underlying allegations described in these counseling forms, but
offers no evidence that these incidents did not occur. See id.
Defendant introduced three counseling forms as exhibits. Def.’s
Mot., Ex. B-1. Two of these forms contain signatures of Counseling
Officers, and one contains a report by a witness.                 Id.
                                                          (continued...)

                                     2
2003, he was cited for his “attitude towards the client.”        Def.’s

Mot., Ex. B-1. On December 18, 2003, he was cited for “Post

abandonment and unauthorized removal of a firearm from a Post.”

Id. The Counseling Official recommended a three-day suspension and

wrote that “[a]ny further violations of company policies will lead

to more severe punishment to include possible termination.”         Id.

On February 19, 2004, he was cited for “improperly unloading” his

weapon inside the security booth.        Id.

          On March 13, 2004, Plaintiff was working at the security

booth at Walter Reed.        An altercation occurred between Plaintiff

and   another     security    officer,   Shawn   Verdine   (“Verdine”).3



      2
      (...continued)
Accordingly, the Court may treat as admitted Defendant’s assertion
that Plaintiff committed three disciplinary infractions. See LcvR
7(h) (an opposition “shall include references to the parts of the
record relied on to support the statement” and “the court may
assume the facts identified by the moving party in its statement of
material facts are admitted, unless such a fact is controverted in”
the opposition; see also Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (“In response to a summary judgment motion,
however, the plaintiff can no longer rest on such ‘mere
allegations,’ but must ‘set forth’ by affidavit or other evidence
‘specific facts.’”) (quoting Fed. R. Civ. P. 56(e)); Hussain v.
Nicholson, 435 F.3d 359, 365 (D.C. Cir. 2006) (“In deciding whether
there is a genuine issue of material fact, the court must assume
the truth of all statements proffered by the non-movant except for
conclusory allegations lacking any factual basis in the record.”)
(emphasis in original).

      3
        In his Opposition, Plaintiff uses two different spellings
to refer to this officer: “Verdine” and “Verdini.” Compare Pl.’s
Opp’n at 1 with Pl.’s Opp’n at 7.     Defendant consistently uses
“Verdine.” See, e.g., Def.’s Mot. at 3. Accordingly, “Verdine”
will be used hereinafter.

                                     3
Plaintiff states that Verdine started the fight, and Verdine states

that Plaintiff started it. According to Plaintiff, Verdine spit on

him twice during the fight. Pl.’s Opp’n at 4.

         Three other security officers were present: William Collins

(“Collins”), Melvin Blassingame (“Blassingame”), and Joseph Barnett

(“Barnett”). Verdine is Caucasian. Collins, Blassingame, Barnett,

and Plaintiff are African American.

         After the fight, Plaintiff went to the Provost Marshall’s

office to report the incident to his supervisors, Lieutenant

Charles     Green     (“Green”)   and    Lieutenant      Gloria    Williams

(“Williams”).    He arrived at the office with liquid on his face and

stated that Verdine had spit on him.        Pl.’s Mot. at 4.       In their

Incident Reports, Barnett and Blassingame both stated that they did

not see Verdine spit on Plaintiff.         Def.’s Mot., Ex. F.       Thomas

Sittner (“Sittner”), Project Manager and Chief of Guards, stated

that Brathwaite had liquid on his face, but that he did not believe

that the liquid was Verdine’s spit.        See id., Ex. E.

         On the same day, March 13, 2004, Green began investigating

the fight and took statements from Blassingame and Barnett.4             Both

witnesses    stated   that   Plaintiff   started   the   fight.5    In   his


     4
       The record does not indicate why Collins did not provide a
statement.
     5
        Although Plaintiff concedes that “an investigation was
conducted and statements were taken,” he “denies the remaining
allegations.”  Pl.’s Response to Def.’s Statement of Undisputed
                                                      (continued...)

                                    4
Incident Report, Barnett stated that “Brathwaite pushed Verdine

first and then Verdine pushed Brathwaite.”       Id., Ex. F.    He also

stated that he thought that Brathwaite “went out of his way to have

a confrontation with Verdine.”     Id.

          Blassingame provided a similar description in his Incident

Report where he stated that “out of my peripheral vision, [I saw]

Verdine fall forward and then he turned and pushed Brathwaite.”

Id.   He also stated that he heard Verdine say, “Don’t push me.”

Id.

          After this investigation, Green and Williams each wrote a

report.     Green stated that “Brathwaite shoved Verdine from behind

and Verdine had a spontaneous reaction shoving Brathwaite causing

[sic] Brathwaite to stumble.” Pl.’s Opp’n, Ex. 5. Green concluded

that “each officer should be suspended for a lengthy period and

Brathwaite reassigned to another post.”    Id.   Williams stated that

“Mr. Brathwaite and Mr. Verdine were both wrong.           Ones [sic]

punishment should be no more than the other.”     Id., Ex. 6.   Neither


      5
      (...continued)
Material Facts ¶ 12. This denial is unclear because it could refer
to two different assertions: first, the assertion that Blassingame
and Barnett provided statements indicating that Plaintiff had
started the fight or second, the assertion that Plaintiff started
the fight. For the first assertion, Plaintiff provides no contrary
evidence, whereas Defendant provided signed statements from Barnett
and Blassingame. Compare Def.’s Mot., Ex. F with Pl.’s Response to
Def.’s Statement of Undisputed Material Facts ¶ 12 (denying the
“remaining allegations,” but providing no citations to corroborate
the denial).         Accordingly, this assertion may be treated as
admitted. See supra note 2 (citing Lujan and Hussain). As to the
second assertion, Plaintiff disputes it.

                                   5
Green nor Williams actually observed the fight.

         On March 18, 2004, Sittner conducted his own investigation.

The investigation included a review of the videotape footage of the

incident6 and two interviews with Plaintiff.                 It also included

interviews of the other security guards on duty, Walter Reed police

officers, and bystanders.        During the course of the investigation,

Barnett and Blassingame told Sittner that he saw Brathwaite push

Verdine from behind, and Blassingame told Sittner that he witnessed

Verdine “go forward” and then heard him say, “Don’t push me.”

         At   the   conclusion   of   the   investigation,     he   prepared   a

Memorandum     on    his   findings   and   sent   it   to   Timothy   McManus

(“McManus”), the Operations Manager.7          In this Memorandum, Sittner

wrote,

         I believe that Officer Brathwaite was the aggressor in
         this matter. I also believe that he has lied in his
         statements. They are not consistent and he refused to
         sign the statement that I took from him.          Most
         compelling are the statements from Barnett and
         Blassingame.     Barnett witnessed Brathwaite push
         Verdine first and Blassingame heard Verdine say,
         “don’t push me,” just before he heard the noise of
         Brathwaite falling.      This type of spontaneous
         utterance is a clear indication that Verdine had been


     6
       According to the letter Sittner wrote to Operations Manager
Timothy McManus, the videotape footage “supports portions of each
officer’s account of the incident,” but it “does not show the
assault by either officer and there is no audio of the incident.”
Def.’s Mot., Ex. D.
     7
        In Plaintiff’s Response to Def.’s Statement of Undisputed
Material Facts, Plaintiff disputed the “conclusions reached in the
report,” but does not dispute that the report stated these
conclusions. See ¶ 19.

                                       6
         pushed and         was       reacting   instead    of    being   the
         aggressor.

Def.’s Mot., Ex. D.            Based on his findings, Sittner recommended

that Defendant terminate Plaintiff.

         McManus reviewed Sittner’s Memorandum.                  He concurred with

Sittner’s recommendation and authorized the termination.                        At the

time he made the decision to terminate Plaintiff, McManus had never

met Plaintiff and did not know his race.

         On March 24, 2004, Plaintiff was informed of his termination.

On April 12, 2004, Defendant hired Norris Hercules, an African

American, to replace Plaintiff.

         On    November     16,   2004,     Defendant   terminated    Verdine      and

another officer who were involved in a fight.

         Plaintiff     filed      a    discrimination   charge     with   the    Equal

Employment Opportunity Commission (“EEOC”).8

         In a letter dated February 21, 2006, the EEOC dismissed the

charge        and   found    that       “[d]ue   to   the   lack     of   evidence,

discriminatory practices cannot be established.”9 Def.’s Mot., Ex.


     8
       The filing date is disputed. See infra III.A.                      Plaintiff
states that he filed the claim on September 4, 2004.                      Defendant
states that he filed the claim on April 28, 2005.
     9
       Plaintiff denies these assertions in his Response to Def.’s
Statement of Undisputed Material Facts.    See Pl.’s Response to
Def.’s Statement of Undisputed Material Facts ¶ 32. However, he
produced no evidence showing that the EEOC did not make these
statements in its February 21, 2006 letter. See generally id. In
contrast, Defendant attached a date-stamped copy of this letter to
his Motion. See Def.’s Mot., Ex. B-2. Accordingly, the Court may
                                                         (continued...)

                                             7
B-2.

           On or about May 18, 2006, Plaintiff instituted this action

in the Superior Court of the District of Columbia.               On August 1,

2006, Defendant filed a Notice of Removal in this Court.

II.        Standard of Review

           Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.              See Fed.

R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United

States, 473 F.3d 329, 333 (D.C. Cir. 2006).              In other words, the

moving party must satisfy two requirements:              first, demonstrate

that there is no “genuine” factual dispute and, second, that if

there is it is “material” to the case.           “A dispute over a material

fact is ‘genuine’ if ‘the evidence is such that a reasonable jury

could return a verdict for the non-moving party.’” Arrington,

(quoting      Anderson   v.   Liberty   Lobby,   Inc.,   477   U.S.   242,   248

(1986)).       A fact is “material” if it might affect the outcome of

the case under the substantive governing law.             Liberty Lobby, 477

U.S. at 248.

           In its most recent discussion of summary judgment, in Scott

v. Harris, 550 U.S. 372, 380 (2007), the Supreme Court said,



       9
     (...continued)
treat this fact as admitted.        See supra note 2.

                                        8
      [a]s we have emphasized, “[w]hen the moving party has
      carried its burden under Rule 56(c), its opponent must
      do more than simply show that there is some
      metaphysical doubt as to the material facts. . . .
      Where the record taken as a whole could not lead a
      rational trier of fact to find for the nonmoving
      party, there is no ‘genuine issue for trial.’”
      Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
      475 U.S. 574, 586-87 . . . (1986) (footnote omitted).
      “[T]he mere existence of some alleged factual dispute
      between the parties will not defeat an otherwise
      properly supported motion for summary judgment; the
      requirement is that there be no genuine issue of
      material fact.” Liberty Lobby, 477 U.S. at 247-48.

      However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is not .

. . to weigh the evidence and determine the truth of the matter,

but to determine whether there is a genuine issue for trial.”

Liberty Lobby, 477 U.S. at 248, 249.     In both Liberty Lobby and

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150

(2000),   the   Supreme    Court   cautioned   that     “[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts, are jury functions, not those

of a judge” deciding a motion for summary judgment. Liberty Lobby,

477 U.S. at 255.   “To survive a motion for summary judgment, the

party bearing the burden of proof at trial . . . must provide

evidence showing that there is a triable issue as to an element

essential to that party’s claim. See Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).”    Arrington, 473 F.3d at 335.




                                   9
III.    Analysis

       A.       There is a Genuine Issue of Fact About                  Whether
                Plaintiff’s Title VII Claim is Time-Barred

        A Title VII claim is time barred if it is not filed within

180 days after the “alleged unlawful employment practice.”                  42

U.S.C. § 2000e-5(e)(1).           If a plaintiff “initially instituted

proceedings with a State or local agency with authority to grant or

seek relief from such practice,” then he is permitted 300 days to

file his claim.       Id.    When a plaintiff fails to file his claim

within the applicable time period, a court may grant summary

judgment for the defendant.        Washington v. Washington Metro. Area

Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998).

        Defendant argues that Plaintiff’s Title VII claim is barred

by the statute of limitations because it was filed on April 28,

2005, 400 days after Defendant terminated him on March 24, 2004.

In response, Plaintiff argues that Defendant is incorrect and that

he filed the claim on September 4, 2004.

        To corroborate his argument, Plaintiff submits five documents

as     attachments    to    his   Opposition:     a   “Charge    Information

Questionnaire”; a “Continuation Answer Sheet”; a March 9, 2005

letter from the EEOC’s Washington Field Office; a February 17, 2005

letter from the EEOC’s Baltimore District Office; and an email from

an Intake Supervisor.        Pl.’s Opp’n, Ex. 10.          The Questionnaire

includes    a    hand-written     date    of   September   4,   2004.      The

accompanying “Continuation Answer Sheet” uses the same date in

                                         10
typed form.       Id.    The Baltimore District Office EEOC letter is

date-stamped February 17, 2005.                   Id.     This letter states that

Plaintiff’s case is being transferred to the Washington Field

Office.    Id.

         Plaintiff argues that the Questionnaire and the Continuation

Sheet establish that he filed the claim within the prescribed

filing    period.       Pl.’s      Opp’n    at    13.          He   explains   that     the

discrepancy between the original filing date of September 4, 2004

and the date cited by Defendant -- April 28, 2005 -- resulted from

his case being transferred twice: once from the EEOC’s Washington

Field Office to Baltimore and then again when the EEOC transferred

the case back to Washington.                Id.       Defendant responds that the

hand-dated form only “purport[s]” to show that he filed his claim

on the earlier date.         Def.’s Reply at 7.

         The   Questionnaire       and     the    Continuation         Sheet   show    that

Plaintiff      submitted     his   claim     within       the       filing   period,   and

Defendant      cites    to   no    statute       or     case    law    stating   that    a

handwritten date is not sufficient to raise an issue of material

fact.     In addition, the date-stamped letter of February 17, 2005

corroborates Plaintiff’s assertion that the discrepancy in dates

resulted from the transfer of the case between the Baltimore and

Washington EEOC offices.

         For these reasons, the Questionnaire and the Continuation

Sheet raise a genuine issue of material fact about the date that


                                            11
Plaintiff filed his claim.             Cf. Colbert v. Potter, 471 F.3d 158,

166-67 (D.C. Cir. 2006) (affirming a grant of summary judgment when

the court determined that “it would be patently unreasonable” to

“infer”     that     the   plaintiff    had   timely    filed   his   complaint).

Therefore summary judgment cannot be granted on that ground.

     B.        Plaintiff   Has          Not    Raised     an     Inference      of
               Discrimination10

          Discrimination claims pursuant to Title VII are analyzed

under the McDonnell Douglas burden shifting framework.                  Ginger v.

District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); see Hawkins

v. Holder, 597 F. Supp. 2d 4, 16-17 (D.D.C. 2009).

          Our Court of Appeals recently held that, when considering a

motion for summary judgment in an employment discrimination case in

which the employer has offered a legitimate, non-discriminatory

reason for its actions, a district court need not consider whether

a plaintiff has satisfied the elements of a prima facie case.

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008).

          Instead,    “‘the   district    court   must    resolve     one   central


     10
        As Defendant states in its Motion, “[r]ace discrimination
claims under Section 1981 are governed by the same evidentiary
framework applicable to Title VII race discrimination claims.”
Def.’s Mot. at 9 (citing Carney v. Am. Univ., 151 F.3d 1090, 1092-
93 (D.C. Cir. 1998) (using the McDonnell Douglas framework to
analyze a Section 1981 claim)). Accordingly, the analysis in this
section applies to the Section 1981 claim (Count II) as well as to
the Title VII claim (Count I).

                                         12
question: 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’ for the adverse

employment   actions,     and   that      the   employer’s      actions    were

discriminatory.”    Daniels v. Tapella, 571 F. Supp. 2d 137, 143

(D.D.C. 2008) (quoting Brady, 520 F.3d at 494).           In other words, a

court must determine whether “all the evidence, taken together, was

insufficient to support a reasonable inference of discrimination.”

Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (citing

Brady, 520 F.3d at 494-495); see also Holcomb v. Powell, 433 F.3d

889, 896-97 (D.C. Cir. 2006) (“[T]he plaintiff must show that a

reasonable jury could conclude from all of the evidence that the

adverse   employment     decision    was    made    for   a     discriminatory

reason.”)(citations omitted).

        In this case, Defendant argues that it had a legitimate,

nondiscriminatory reason for firing Plaintiff: he violated the

company’s “rule against physical assaults.” Def.’s Mot. at 14. In

response, Plaintiff argues that Defendant’s reason is a pretext

that “mask[s] unlawful discrimination.”            Pl.’s Opp’n at 7.

        Because Defendant has cited Plaintiff’s violation of its

“rule     against   physical        assaults”       as    its      legitimate,

nondiscriminatory reason for terminating him, it is not necessary

to determine whether Plaintiff has made out a prima facie case.

Instead, the Court must decide the ultimate question: whether “all


                                     13
the   evidence,    taken     together,    was    insufficient          to    support    a

reasonable inference of discrimination.”              Jones, 557 F.3d at 678

(citations omitted).

        Our Court of Appeals has specified that “all of the evidence”

means “any combination of (1) evidence establishing the plaintiff’s

prima facie case; (2) 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.” Holcomb, 433

F.3d at 897 (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289

(D.C.   Cir.    1998)    (en    banc)).         The   Court       of    Appeals     has

“consistently declined to serve as a super-personnel department

that reexamines an entity’s business decisions.” Holcomb, 433 F.3d

at 897 (internal citations and quotation marks omitted).

        A   plaintiff   may    show    discrimination      either        directly      or

indirectly.    George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)

(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256

(1981)); see also Hawkins, 597 F. Supp. 2d at 17.                           Evidence is

direct if it shows that a “discriminatory reason more likely

motivated    the   employer.”         George,   407   F.3d    at       413    (internal

citations and quotation marks omitted). Evidence is indirect if it

shows that “the employer’s proffered explanation is unworthy of

credence.”     Id. (internal citations and quotation marks omitted).


                                         14
         Plaintiff      offers   no    direct    evidence      of   discrimination.

Instead, he argues that Defendant’s reason for terminating him is

a pretext that “mask[s] unlawful discrimination.”                    Pl.’s Opp’n at

7. There are two ways to show that a nondiscriminatory explanation

was false.        First, a plaintiff may show that “the employer is

making up or lying about the underlying facts that formed the

predicate for the employment decision.”                Brady, 520 F.3d at 495

(citations omitted). Second, a plaintiff may show that a similarly

situated employee was treated more favorably.                  Id.

            1.       Plaintiff Has Not Shown that Defendant Lied About
                     the Underlying Facts

         Plaintiff      first    argues    that     Defendant’s          “reasons    for

terminating Mr. Brathwaite are unworthy of credence.”                      Pl.’s Opp’n

at 13.    He argues that Verdine “assaulted Mr. Brathwaite at least

once” and the “fact that Vance did not discipline Verdine at all

shows that its action against Mr. Brathwaite was discriminatory.”

Id. at 11, 13.

         In response, Defendant states that it decided to terminate

Plaintiff    because      its    “thorough      investigation”       concluded      that

Plaintiff was at fault.          Def.’s Mot. at 16.       In its investigation,

Defendant    relied      on    two   witnesses,    both   of      whom    are   African

American as is Plaintiff, who stated that Plaintiff started the

fight.      Id.    at    15.     The    investigation       also     concluded      that

Plaintiff’s statements were “inconsistent.”                 Id.     Defendant argues

that in light of this evidence, Plaintiff cannot show that its

                                          15
reason for terminating Plaintiff was a “phony” one.    Id. at 16.

      As our Court of Appeals stated in George, “an employer’s

action may be justified by a reasonable belief in the validity of

the reason given even though that reason may turn out to be false.”

George, 407 F.3d at 415 (citing Fischbach v. D.C. Dep’t of Corr.,

86 F.3d 1180, 1183 (D.C. Cir. 1996)).   In other words, a defendant

“could prevail on its motion for summary judgment . . . if it were

able to demonstrate the absence of a genuine dispute in the record

over whether [it] honestly and reasonably believed” in its given

reason.   Id.; see also Forrester v. Rauland-Borg Corp., 453 F.3d

416, 419 (7th Cir. 2006) (Posner, J.) (“A pretext . . . is a

deliberate falsehood. An honest mistake, however dumb, is not, and

if there is no doubt that it is the real reason it blocks the case

at the summary-judgment stage.”) (citations omitted).

      The Eighth Circuit emphasized the same principle in a recent

age discrimination case that is strikingly similar to the one now

before this Court.   In Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th

Cir. 2004), a plaintiff was terminated because he was fighting. He

argued that there was a genuine issue of fact about whether he was

“actually fighting.”   Id.   In affirming the district court’s grant

of summary judgment for the defendant, the court held that the “key

question in a discrimination case like this one is not whether [the

plaintiff] was truly fighting, but whether the employer really

believed that he was fighting, such that the termination was based


                                  16
on   a        non-discriminatory       reason.”      Id.   (emphasis      in   original;

citations omitted).

              The Eighth Circuit concluded that the district court properly

granted         summary     judgment    for    the    defendant     because     it   was

“undisputed”         that    witnesses     reported        that   the    plaintiff   was

fighting, even if the plaintiff “could now show that the witnesses

were wrong in what they reported about the altercation.”                         Id. at

924-25.

              Accordingly, in this case, the relevant issue is not whether

Plaintiff did in fact initiate the fight, but rather whether

Defendant         “honestly     and    reasonably      believed”        that   Plaintiff

initiated the fight.11           Defendant conducted an investigation into

the fight, and the investigation concluded that “Brathwaite was the

aggressor in this matter” and that he “has lied in his statements.”

Def.’s Mot. at 4-5; see also id., Ex. E (Sittner Deposition) (“[A]t

that point, I determined that [Plaintiff] was the aggressor, that

he was lying in the course of the investigation”).                         During this

investigation, two witnesses informed Defendant that Plaintiff

initiated the fight.           Id. at 15; see also id., Ex. F (Blassingame

and Barnett Incident Reports). Although they also saw Verdine push

Plaintiff, both witnesses believed that the fight was initiated by

Brathwaite.          See, e.g., id., Ex. F (“Brathwaite pushed Verdine



         11
        As a result, it is also unnecessary to determine whether
Verdine spit on Plaintiff.

                                              17
first     and    then    Verdine   pushed       Brathwaite   who     fell    into   the

watercooler.”).

          Defendant      introduced      evidence    that    shows    that    McManus

concurred with these conclusions and used them as the basis for

terminating Plaintiff.          Def.’s Mot, Ex. C (“Verdine did not appear

to be the aggressor in the matter”); see id. (the reason for

terminating Plaintiff was “assaulting another security officer,

based on the investigation”).              In addition, McManus did not know

Plaintiff’s race,         Def.’s Mot. at 17, and thus could not have used

race as a reason for terminating him.

          In contrast, Plaintiff has provided no evidence to show that

Defendant did not honestly and reasonably believe that it was

terminating Plaintiff because he had initiated the fight with

Verdine.12

          For these reasons, no reasonable juror could conclude that

Defendant        did    not   honestly    and     reasonably   believe       that   it

terminated Plaintiff because he initiated the fight.

                2.      Plaintiff Has Not Shown that a Similarly Situated
                        Employee Was Treated More Favorably

          Plaintiff next argues that Defendant’s reason is a pretext

because Verdine was a similarly situated employee who was treated

“better” than Plaintiff. Pl.’s Opp’n at 11. Plaintiff argues that

Plaintiff and Verdine were similarly situated because they were


     12
         Nor did Plaintiff ever make such an argument in his
Opposition.

                                           18
“involved in the same incident with the same people in charge of

investigating the incident . . . the same person in charge of

recommending disciplinary action . . . and the same person in

charge of issuing the disciplinary action.”               Id. at 12.

      In response, Defendant argues that the employees were not

similarly situated because its investigation found that Plaintiff,

and not Verdine, was responsible for initiating the altercation.

It also argues that Verdine was not treated favorably because it

subsequently    terminated    Verdine      when    he    was   involved   in    an

unrelated fight in November 2004.              Def.’s Mot. at 17, Ex. G.

Plaintiff argues that this latter incident is “distinguishable”

because   Sittner    and    McManus     were      not    “involved     with    the

investigation   of   this    other    incident     or    Vance’s   decision     to

terminate Verdine.”    Pl.’s Opp’n at 12.

      Employees are similarly situated only if “all of the relevant

aspects” of their employment situations are “nearly identical.”

McFadden v. Ballard, et al., 580 F. Supp. 2d 99, 109 (D.D.C. 2008)

(quoting Neuren v. Adduci, Mastriani, Meeks, & Schill, 43 F.3d

1507, 1514 (D.C. Cir. 1995)); see also Brady, 520 F.3d at 495

(employees are similarly situated if they share “the same factual

circumstances”).     If no reasonable juror could conclude that two

employees were similarly situated, then a court may find they were

not similarly situated as a matter of law.              See George, 407 F.3d at

414-15; see also Banks v. District of Columbia, 498 F. Supp. 2d


                                      19
228, 234 (D.D.C. 2007).

          Here, Sittner conducted an investigation and concluded that

Plaintiff had initiated the fight.                McManus concurred with the

results of the investigation.                 Two witnesses stated in their

Incident Reports that Plaintiff was the aggressor in the fight.

Thus, Plaintiff and Verdine were not similarly situated because

several        relevant   aspects   of   their   employment     situations        were

distinguishable. Moreover, Verdine was not treated more favorably.

Defendant       terminated    Verdine    when    it   found   him   at    fault   for

fighting in a later incident.13

          In    addition,    comparing    the     two   employees        shows    that

Defendant’s nondiscriminatory reason for terminating Plaintiff was

not a pretext that masks discrimination.                  Defendant terminated

Plaintiff, an African-American employee, when its investigation

found him at fault for fighting. It terminated Verdine, a Causasan

employee, when its investigation found him at fault for fighting.

In comparing these two incidents, it is clear that the relevant

factor distinguishing the treatment of the two employees was not

their race.        In both cases, the relevant factor was the employee’s

role in the fight.           In each case, it terminated the employee it

found at fault for fighting.


     13
        Plaintiff has not explained the relevance of his assertion
that Sittner and McManus participated in one investigation but not
the other.    This assertion offers no support for Plaintiff’s
argument that he and Verdine were similarly situated but treated
differently.

                                         20
        For these reasons, Plaintiff has presented no evidence that

would   allow   a   reasonable   juror   to   conclude   that   Verdine   was

similarly situated to Plaintiff but treated favorably.

     C.      Plaintiff Did Not State a Valid Cause of Action for
             Termination in Violation of D.C. Public Policy

        Finally, Defendant argues that Plaintiff “cannot state a

cause of action for termination in violation of public policy.”

Def.’s Mot. at 18.

        Plaintiff argues that an employee can bring a wrongful

discharge claim under the District of Columbia’s “public policy

exception to the employment-at-will doctrine.”           Pl.’s Opp’n at 14.

Plaintiff alleges that he was fired because he “reported matters of

public concern.”      Pl.’s Opp’n at 14.

        This exception to the at-will doctrine is a “very narrow” one

in the District of Columbia.       See Owens v. Nat’l Med. Care, Inc.,

337 F. Supp. 2d 131, 137 (D.D.C. 2004) (citations omitted).                An

employee states a claim for wrongful discharge in violation of

public policy when he alleges that “(1) he engaged in a protected

activity . . . (2) the employer took an adverse personnel action

against him; and (3) there was a causal connection between the

two.”   Owens, 337 F. Supp. 2d at 137 (citations omitted); see Pl.’s

Opp’n at 14.        A causal connection exists only if the protected

activity was the “sole reason” for the adverse personnel action.

Owens, 337 F. Supp. 2d at 141 (emphasis in original) (citing Carl

v. Children’s Hosp., 702 A.2d 159, 160 (D.C. 1997)); Pl.’s Opp’n at

                                    21
14.

           In this case, as discussed supra III.B, Defendant introduced

substantial evidence to show that it terminated Plaintiff because

it determined that he was the aggressor in the fight with Verdine.

It made this determination after an investigation that included

statements by two employees who witnessed the fight.                See supra

III.B.      Plaintiff has provided no evidence showing that any other

reason motivated Defendant. Accordingly, no reasonable juror could

conclude      that   protected    activity    was   the   “sole”   reason    for

Plaintiff’s termination.14

IV.        Conclusion

      For the reasons set forth above, Defendant’s Motion for

Summary      Judgment   is   granted.    An   Order   shall   accompany     this

Memorandum Opinion.



                                       /s/
May 11, 2009                     Gladys Kessler
                                      United States District Judge

Copies via ECF to all counsel of record




      14
        In addition, there is little reason to doubt the validity
of Defendant’s argument that Plaintiff did not engage in protected
activity.

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