                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


    CLIFTON STANLEY DIAZ, JR.,
      Plaintiff,

         v.                                                  Civil Action No. 15-442 (CKK)
    WASHINGTON METROPOLITAN AREA
    TRANSIT AUTHORITY,
      Defendant.


                                  MEMORANDUM OPINION
                                     (March 22, 2017)

        Plaintiff Clifton Stanley Diaz filed suit against Defendant Washington Metropolitan Area

Transit Authority (“WMATA”) alleging violations of Title VII of the Civil Rights Act of 1964

after he was terminated from his employment as a probationary officer with WMATA’s Metro

Transit Police Department (“MTPD”). Plaintiff alleges that Defendant discriminated against him

on the basis of his national origin and sexual orientation. Presently before the Court is Defendant’s

[21] Motion for Summary Judgment. Upon consideration of the pleadings, 1 the relevant legal

authorities, and the record as a whole, the Court shall GRANT Defendant’s Motion. Plaintiff has

not presented evidence that would allow a reasonable juror to find that Defendant’s asserted non-

discriminatory reason for terminating Plaintiff was not Defendant’s actual reason for doing so.




1
   The Court’s consideration has focused on the following documents and their attachments
and/or exhibits: Def.’s Mot. for Summary Judgment, ECF No. [21] (“Def.’s Mot.”); Pl.’s Resp.
to Def.’s Mot. for Summary Judgment, ECF No. [22] (“Pl.’s Resp.”); and Def.’s Reply to Pl.’s
Resp. to Def.’s Mot. for Summary Judgment, ECF No. [23] (“Def.’s Reply”). In an exercise of
its discretion, the Court finds that holding oral argument in this action would not be of assistance
in rendering a decision. See LCvR 7(f).
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                                        I. BACKGROUND

       Plaintiff Clifton Stanley Diaz was employed as a probationary recruit police officer with

the MTPD until his termination in 2013. Def.’s Stmt. of Material Facts Not in Dispute, ECF No.

[21-1] (“Def.’s Stmt.”), ¶¶ 1, 7. In 2013, MTPD conducted an investigation into allegations that

Plaintiff had abandoned his Field Training Officer (“FTO”) during a service call, returned to the

police station without said FTO, failed to submit his paperwork for review by a supervising

official, and failed to check off with the official on duty before ending his shift. Id. ¶ 4; see also

Def.’s Stmt., Exs. 1, 2 (May 7, 2013 and May 27, 2013 MTPD Investigative Reports outlining

Plaintiff’s alleged misconduct). As a result of the investigation, MTPD charged Plaintiff with a

violation of its Ethical Standards of Conduct and Financial Interest, General Order # 217, section

III.A, number 3, which states that “Members will respond promptly and truthfully to all inquiries

initiated by an official” and “will not knowingly make false statements in any written or verbal

reports.” Def.’s Stmt. ¶ 5. The MTPD subsequently terminated Plaintiff, effective June 1, 2013.

Id. ¶ 7. According to Defendant, Plaintiff was terminated as a result of this investigation and due

to his failure to satisfactorily complete his field training program. Id. ¶ 6; see also Def.’s Stmt.,

Ex. 3 (May 31, 2013 MTPD Field Training Failure Notice summarizing “performance

deficiencies exhibited by Recruit Officer Clifton Diaz during his Field Training”).

       Plaintiff has not presented evidence that rebuts the facts laid out above, but claims that he

was in fact discharged either because he is Hispanic 2 or because his superiors at WMATA

“perceived [him] to be gay.” Def.’s Stmt., Ex. 5 (Deposition of Clifton Stanley Diaz) at 18:6-12.

Plaintiff expounded on the basis for his claims at his deposition. At that deposition, Plaintiff




2
 Plaintiff refused at his deposition to provide additional detail as to his national origin beyond
asserting that he is Hispanic. Def.’s Stmt., Ex. 5 at 16:9-15.

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stated that he “was the only Hispanic in [his] training group.” Id. at 16:2-3. He further stated

that “[t]he Deputy Police Chief, Jeffrey Delinski, asked me if I had girlfriends. When I

responded no, he laughed and chuckled, then discharged me.” Id. at 16:21-17:1. Additionally,

Plaintiff—who has repeatedly indicated that he is a heterosexual—claims that he overheard two

unidentified peers at WMATA refer to him using a derogatory term for homosexuals. Id. at

17:12-13, 19:3-4, 22:6-23:4. Finally, Plaintiff stated that he was required to wear pants that did

not fit him. Id. at 17:13-20.

                                    II. LEGAL STANDARD

       Summary judgment is appropriate where “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. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See



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Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party's assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

       In recognition of the difficulty in uncovering clear evidence of discriminatory or

retaliatory intent, the district court should approach summary judgment in an action for

employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116

F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)

(en banc). Be that as it may, the plaintiff is not relieved of his burden to support his allegations

with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any



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context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at

the summary judgment stage he bears the burden of production to designate specific facts

showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557

(2009). Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary

judgment device—namely, “to weed out those cases insufficiently meritorious to warrant . . .

trial”—simply by way of offering conclusory allegations, speculation, and argument. Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

                                        III. DISCUSSION

       Title VII of the Civil Rights Act makes it unlawful for any 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). To

establish a prima facie case under Title VII, a plaintiff must show that he “is a member of a

protected class,” that he “suffered an adverse employment action,” and that “the unfavorable

action gives rise to an inference of discrimination.” Youssef v. F.B.I., 687 F.3d 397, 401 (D.C.

Cir. 2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)).

       Plaintiff represents himself pro se in this matter and his pleadings are not a model of

clarity. Accordingly, two preliminary points must be made. First, Plaintiff appears to allege in

his Amended Complaint that he was discriminated against based on his sexual orientation. Am.

Compl., ECF No. [20], at 5. However, “Title VII does not prohibit discrimination based on

sexual orientation or sexual preference.” Schroer v. Billington, 424 F. Supp. 2d 203, 208 (D.D.C.

2006). Accordingly, Plaintiff has not established an actionable claim for discrimination based on




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his sexual orientation. 3 That being said, it is unclear from his pleadings whether Plaintiff

intended to additionally assert claims for gender or sex-stereotyping, which could be actionable.

Assuming that Plaintiff did intend to plead such claims, the Court explains further below why

they would not survive summary judgment.

       Second, although Plaintiff’s pleadings include references to various other conduct, the

only actionable “adverse employment action” Plaintiff has alleged in this case is his termination.

“[N]ot everything that makes an employee unhappy is an actionable adverse action.” Russell v.

Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). An adverse action must be “‘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.’” Taylor v. Small,

350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

761 (1998)). In this case, other than Plaintiff’s termination, the acts complained of in Plaintiff’s

pleadings—including comments by Plaintiff’s peers and supervisors and issues with Plaintiff’s

uniform—do not rise to the level of adverse employment actions that could form the basis of a

Title VII claim on their own.

       Having resolved these preliminary issues, the Court moves on to consider the record as to

Plaintiff’s allegedly discriminatory termination. Defendant has proffered a non-discriminatory

rationale for this employment action, for which it has provided supporting evidence: Defendant

claims that Plaintiff was terminated as a result of the investigation into Plaintiff’s alleged

misconduct relating to his abandoning of his FTO, which he was determined to have been

untruthful about when questioned, as well as Plaintiff’s poor evaluations. Because Defendant




3
 Moreover, although Plaintiff appears to suggest that he was mistreated because he was
perceived to be a homosexual, Plaintiff has repeatedly indicated that he is in fact a heterosexual.

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has proffered such a rationale, it “is no longer relevant” if Plaintiff has established a prima facie

case. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). In fact, the Court

of Appeals has dictated that this Court “need not—and should not—decide” whether the Plaintiff

has made out a prima facie case at this stage. Brady v. Office of Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008) (emphasis in original). Instead, this Court need only determine whether

Plaintiff has “produced sufficient evidence for a reasonable jury to find that the [Defendant’s]

asserted non-discriminatory reason was not the actual reason and that [Defendant] intentionally

discriminated against [Plaintiff] on the basis of” a protected status. Id. A plaintiff may make this

showing by relying on “(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 v.

Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).

       In this case, Plaintiff has not produced sufficient evidence to rebut Defendant’s proffered

non-discriminatory reason for terminating him. With respect to Plaintiff’s national origin

discrimination claim, the only “evidence” the Court can discern from the record is that Plaintiff

claims to have been the only Hispanic person in his training group. This is clearly insufficient

evidence for a reasonable jury to conclude that Defendant’s non-discriminatory reason for

terminating Plaintiff—based on a fully-documented investigation into Plaintiff’s alleged

wrongdoing and poor evaluations—was false and that Plaintiff was actually terminated due to his

national origin. In fact, the Court does not find that this “evidence” supports that conclusion at

all.




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       Moreover, even if Plaintiff’s allegations related to his sexual orientation were construed

as actionable gender or sex-stereotype discrimination claims under Title VII, the Court similarly

finds that there is not sufficient evidence for a reasonable jury to find that such discrimination

was the true purpose of Plaintiff’s termination either. Plaintiff claims that he was required to

wear a uniform with ill-fitting pants, was asked if he had “girlfriends,” and that he overheard two

of his peers—who had no supervisory role over Plaintiff and no apparent involvement with his

termination—refer to him by a derogatory term for homosexuals. Plaintiff’s concerns regarding

his uniform and the derogatory comments attributed to his peers have no apparent connection to

his termination. Similarly, the comment regarding Plaintiff’s “girlfriends,” without any context,

also provides little if any evidence as to the intent of Defendant in terminating Plaintiff. The

Court of course by no means sanctions any of this alleged conduct. However, it does conclude

that these assertions are not sufficient evidence upon which a reasonable juror could base a

conclusion that Defendant’s non-discriminatory reason for terminating Plaintiff was not its

“actual reason.” Brady, 520 F.3d at 494. Because Plaintiff failed to produce such evidence,

Defendant is entitled to summary judgment in its favor.

                                       IV. CONCLUSION

       For the reasons discussed above, the Court shall GRANT Defendant’s [21] Motion for

Summary Judgment and DISMISS this case. An appropriate Order accompanies this

Memorandum Opinion.


                                                         /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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