                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
CAMILLA YOUNGER,                          )
                                          )
                  Plaintiff,              )
                                          )
            v.                            )                      Civil No. 13-1296 (RMC)
                                          )
DISTRICT OF COLUMBIA PUBLIC               )
SCHOOLS, et al.,                          )
                                          )
                  Defendants.             )
__________________________________________)


                                  MEMORANDUM OPINION

               Plaintiff Camilla Younger was employed by the District of Columbia Public

Schools (DCPS) as an art teacher and attendance officer for over eighteen years. In 2010, she

was discharged after she allegedly failed to disclose that she continued to hold a part-time,

evening, teaching position at Roosevelt Senior Alternative High School (Roosevelt STAY) while

on medical leave from her full-time teaching position at Woodson Ninth Grade Academy at Ron

Brown Middle School. After the Court granted, in part, Defendants’ motion to dismiss, see

Memorandum Opinion [Dkt. 33], only Ms. Younger’s claims of age discrimination under the

Age Discrimination in Employment Act, 19 U.S.C. §§ 621 et seq. (2012) (ADEA) and retaliation

under the District of Columbia Whistleblower Protection Act, D.C. Code § 1-615.53 (2012)

(DCWPA) remain. DCPS now moves for summary judgment on the remaining claims, arguing

that the undisputed facts show that Ms. Younger’s termination and the denial of her request to

transfer to a new school were not a result of age discrimination or retaliation. For the reasons set

forth below, the Court will grant summary judgment to DCPS on Ms. Younger’s retaliation

claims and on her claim that Principal Darrin Slade discriminated against her when he terminated

                                                 1
her, but will deny summary judgment on Ms. Younger’s claim of age discrimination when

Principal Williams-Minor denied, or withdrew, an offer to transfer Ms. Younger to a new school.

                                              I. FACTS

                Ms. Younger served DCPS as a dual-certified art teacher and attendance officer

from 1992 to 2010. She holds a Bachelor of Fine Arts degree in Art Education and a Master’s

degree in Administration and Supervision. Am. Compl. [Dkt. 2] ¶ 20. Prior to the 2008-2009

school year, Ms. Younger taught full-time at the Woodson Senior High School (WSHS). Id.

¶ 34. Starting in 2007, Ms. Younger was also a part-time evening art teacher at Roosevelt

STAY. Ex. 1, Mot. for SJ, Deposition of Camilla Younger [Dkt. 58-1] at 93:8-11 (Younger

Dep.). After the 2007-2008 school year, WSHS was closed and the students were transferred to

temporary locations. Am. Compl. ¶ 34. Ms. Younger asked to be transferred to the temporary

high school location, but was instead moved to Woodson Ninth Grade Academy, located inside

Ron Brown Middle School. Id.

                Ms. Younger’s experience at Woodson Ninth Grade Academy was not ideal. Ms.

Younger alleges that the combined Ron Brown/Woodson school was “unsafe, overcrowded,

hostile, unbearable[,] . . . school violence increase[d] daily (kids fighting daily, violence against

teachers, destruction of property, fires . . .),” and that she did not receive the institutional support

necessary to teach students effectively. Id. ¶ 37. Ms. Younger describes multiple instances of

physical altercations with students during the 2008-2009 school year, see id. ¶¶ 39-40, and states

that she submitted incident reports to DCPS regarding these events. Id. ¶ 40. Although she

reported the incidents to her supervisors, the solutions were not satisfactory, in that offending

students were merely removed from her classroom for a few days. Id. ¶¶ 39-40.

                At the end of the 2008-2009 school year, when DCPS teachers could apply to

transfer to new schools, Ms. Younger applied and was accepted for a position at another school.

                                                   2
Id. ¶ 41. However, Darrin Slade, Principal of Woodson Ninth Grade Academy, convinced Ms.

Younger to return to Woodson Ninth Grade Academy and assured her that he would authorize an

immediate transfer if her working conditions did not improve. Id.

               Ms. Younger states that her working conditions worsened in the next school year.

On September 1, 2009, she was “physically assaulted and injured by special education high

school students with varied learning disabilities and emotional problems [who] . . . [ran] over

[her] at the door, [and knocked] [her] to the floor,” causing injuries that required her to take

medical leave. Id. ¶ 42; see also Ex. 2, Mot. for SJ [Dkt. 58-1] (Sept. 1, 2009 Report of Injury).

In a memorandum dated September 30, 2009, Ms. Younger was informed of “Classroom

Management Concerns” raised by Principal Slade, including failing to keep students occupied

and engaged during the class period and failing to “maintain appropriate disciplinary data.” Ex.

3, Mot. for SJ [Dkt. 58-1] at 1 (Sept. 30, 2009 Slade Memo). Ms. Younger states that she asked

Principal Slade for an immediate transfer and applied for workers’ compensation following the

September 1, 2009 altercation with the hope of receiving a reasonable accommodation that

would allow her to continue working at Woodson Ninth Grade Academy. Am. Compl. ¶¶ 43-44.

In early October 2009, Ms. Younger stopped reporting for work at Woodson Ninth Grade

Academy, see Ex. 4, Mot. for SJ [Dkt. 58-1] at 1 (DCPS Response to Request for Information);

Younger Dep. 262:15-263:4, but she continued to teach at Roosevelt STAY during the evening.

See DCPS Response to Request for Information at 2. Ms. Younger did not return to the

Woodson Ninth Grade Academy for the remainder of the 2009-2010 school year.

               During the summer of 2010, Ms. Younger interviewed with several DCPS

principals for a new position. Among those with whom she talked was Tanisia Williams-Minor,

Principal at the Youth Engagement Academy. Am. Compl. ¶ 45. Ms. Younger alleges that after



                                                  3
her interview with Principal Williams-Minor,1 she was offered a part-time position as art teacher

at the Youth Engagement Academy and was introduced to the Assistant Principal as Principal

Williams-Minor’s “new art teacher.” Id. Ms. Younger further alleges that she and Principal

Williams-Minor met on multiple occasions to discuss the position and at the last of these

meetings Principal Williams-Minor asked for the spelling of Ms. Younger’s name, her address,

and her date of birth to complete various personnel forms. Id. Ms. Younger alleges that “[w]hen

[she] gave [Principal Williams-Minor] [her] date of birth she was noticeably shocked, breathless

(she place[d] her hand over her heart) and was speechless, and gasping for breath. Her facial

expression and [demeanor] change[d].” Id.

               DCPS disagrees, arguing that Ms. Younger was never offered the position at the

Youth Engagement Academy, see DCPS Response to Request for Information, because Principal

Williams-Minor and the principal from Jefferson Middle School decided to share a single full-

time art teacher and Ms. Younger was seeking a part-time position. See Am. Compl. ¶ 57. Ms.

Younger admits that the teacher hired for the position was full-time to serve both schools, but

alleges that Principal Williams-Minor chose to withdraw her offer of a transfer because of Ms.

Younger’s age. See id. DCPS concedes that the teacher hired to fill the position was 23 years

old (Ms. Younger was 63), but insists that Principal Williams-Minor’s decision was based on the

fact that the Principal had previously worked with the young art teacher. See DCPS Response to

Request for Information. Because Principal Williams-Minor withdrew, or did not offer, the

position to Ms. Younger and it was too late to apply to transfer elsewhere, Ms. Younger was

unable to transfer to a new school before the 2010-2011 school year. See id.




1
 Because each principal was involved in different allegedly discriminatory acts, the Court will
distinguish Principal Slade and Principal Williams-Minor throughout.
                                                4
                Principal Slade learned in August 2010 that Ms. Younger had continued to teach

at Roosevelt STAY during the period she claimed she was unable to return to Woodson Ninth

Grade Academy. On August 16, 2010, Principal Slade notified Ms. Younger that she would be

terminated effective August 27, 2010. See Mot. for SJ, Ex. 6 [Dkt. 58-1] (Notice of

Termination).

                After exhausting her administrative remedies, and acting pro se, Ms. Younger

filed a Complaint on August 27, 2013, see Compl. [Dkt. 1], and an Amended Complaint shortly

thereafter, see Am. Compl. [Dkt. 2]. On July 25, 2014, the Court granted in part and denied in

part Defendants’ Motion to Dismiss, dismissing all claims except Count 1, alleging that DCPS

discriminated against Ms. Younger due to her age when Principal Williams-Minor withdrew or

refused to grant her a transfer and when Principal Slade discharged her; and Count 5, alleging

that DCPS retaliated against Ms. Younger for pursuing her workers’ compensation claim. See

Memorandum Opinion [Dkt. 33]; Order [Dkt. 34]. DCPS filed a Motion for Summary Judgment

on the remaining claims on May 19, 2016. See Mot. for SJ [Dkt. 58]. Ms. Younger, through

counsel, opposed, see Opp’n [Dkt. 62], and DCPS replied. See Reply [Dkt. 65]. The motion is

ripe for review.

                                   II. LEGAL STANDARDS

   A. Motion for Summary Judgment under Fed. R. Civ. P. 56

                Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if 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); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly

granted against a party who “after adequate time for discovery and upon motion . . . fails to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

                                                 5
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the

nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that

would enable a reasonable jury to find in its favor. Id. If the evidence “is merely colorable, or is

not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(citations omitted). On summary judgment, the district judge must decide “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.” Id. at 251-52.

   B. Age Discrimination under ADEA

                The Age Discrimination in Employment Act prohibits discrimination against

federal employees based on age. 29 U.S.C. § 633a. The “two essential elements of a

discrimination claim” under the ADEA are “that [(1)] the plaintiff suffered an adverse

employment action [(2)] because of the plaintiff’s . . . age.” Baloch v. Kempthorne, 550 F.3d

1191, 1196 (D.C. Cir. 2008) (collecting cases). Claims under the ADEA are subject to the

analytical framework adopted first in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015) (citing Smith v.

District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)).

       Under McDonnell Douglas, the plaintiff must first establish by a preponderance of the

evidence a prima facie case of discrimination by showing (1) that he is a member of a protected

class; (2) that he suffered an adverse personnel action; (3) under circumstances giving rise to an

                                                  6
inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999) (McDonnell

Douglas applies to Title VII claim); see also Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir.

2006) (McDonnell Douglas applies to ADEA claim); Stella v. Mineta, 284 F.3d 135, 144-46

(D.C. Cir. 2002) (under the ADEA, a plaintiff must show that there is some causal connection

between the adverse action and the plaintiff’s age).

               Once a plaintiff establishes a prima facie case, the burden of production shifts to

the defendant to “articulate some legitimate, nondiscriminatory reason” for its action. Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802;

see also Barnette, 453 F.3d at 515 (shifting burden applies to ADEA claims). If the defendant

meets this burden, then the plaintiff must demonstrate that the legitimate reasons offered by the

employer were not its true reasons, but were a “pretext” for discrimination. Burdine, 450 U.S. at

253; McDonnell Douglas, 411 U.S. at 804.

               In a motion for summary judgment, a court does not focus significantly on the

plaintiff’s burden to make out a prima facie case. Brady v. Office of Sergeant at Arms, 520 F.3d

490, 493 (D.C. Cir. 2008). The D.C. Circuit stated that this “judicial inquiry into the prima facie

case is usually misplaced” because “[i]n the years since McDonnell Douglas, the Supreme

Court’s decisions have clarified that the question whether the employee made out a prima facie

case is almost always irrelevant.” Id. “[O]nce the employer asserts a legitimate, non-

discriminatory reason, the question whether the employee actually made out a prima facie case is

‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the picture.’” Id. at 493-94

(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

               [I]n considering an employer’s motion for summary judgment or
               judgment as a matter of law in those circumstances, the district court
               must resolve one central question: Has the employee produced
               sufficient evidence for a reasonable jury to find that the employer’s
                                                 7
               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?

Brady, 520 F.3d at 493-94.

   C. Retaliation under the DCWPA

               The DCWPA protects employees of the D.C. government by ensuring they are

“free to report waste, fraud, abuse of authority, violations of law, or threats to public health or

safety without fear of retaliation or reprisal.” D.C. Code § 1-615.51. City employers are

prohibited from taking an adverse action against employees in retaliation for protected

disclosures made under the DCWPA. See D.C. Code § 1-615.52, 53. A “protected disclosure” is

               Any disclosure of information, not specifically prohibited by statute,
               without restriction to time, place, form, motive, context, forum, or
               prior disclosure made to any person by an employee or applicant,
               including a disclosure made in the ordinary course of an employee’s
               duties by an employee to a supervisor or a public body that they
               employee reasonably believes evidences:

               (A) Gross mismanagement;

               (B) Gross misuse or waste of public resources or funds;

               (C) Abuse of authority in connection with the administration of a
               public program or the execution of a public contract;

               (D) A violation of a federal, state, or local law, rule, or
               regulation, . . . ; or

               (E) A substantial and specific danger to the public health and safety.

D.C. Code § 1-615.52(a)(6).

               The DCWPA also uses a burden shifting framework to determine liability.

               [A]fter a plaintiff makes a prima facie case that h[er] ‘protected
               disclosure’ was a ‘contributing factor’ in h[er] dismissal, the burden
               shifts to the defendant to show by clear and convincing evidence
               that the plaintiff’s dismissal would have occurred for ‘legitimate,
               independent reasons’ even if [s]he had not engaged in activities
               protected under the [DCWPA].


                                                  8
Crawford v. District of Columbia, 891 A.2d 216, 219 (D.C. 2006). A contributing factor is “any

factor which, alone or in connection with other factors, tends to affect in any way the outcome of

the decision.” D.C. Code § 1-615.52(a)(2). The DCWPA, like other whistleblower statutes,

only shields an employee from an adverse employment action “‘to the extent the record supports

a finding that [s]he would not have been disciplined except for h[er] status as a whistleblower.’”

Crawford, 891 A.2d at 222 (quoting Carr v. Social Security Admin., 185 F.3d 1318, 1325 (Fed.

Cir. 1999)). At summary judgment a court reviews the record as a whole to determine whether,

based on undisputed facts, “a reasonable jury [could] conclude that retaliation played a

contributing role in [the plaintiff’s] termination.” Payne v. District of Columbia, 808 F. Supp. 2d

164, 170 (D.D.C. 2011).

                                        III. ANALYSIS2

               Ms. Younger’s Opposition completely ignores the arguments advanced by DCPS

with regard to her claims that Principal Slade retaliated against her for engaging in protected

activity and/or discriminated against her because of her age when he discharged her. She focuses

exclusively on the contested facts that prevent summary judgment on her claim that Principal

Williams-Minor discriminated against Ms. Younger because of her age when she withdrew the

job offer to teach at the Youth Engagement Academy. The law is clear that when a party fails to

respond to arguments in a motion for summary judgment, the points are conceded. See Wash.

Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997) (declining to consider

argument that was raised in only “a cursory fashion”); Ry. Labor Execs.’ Ass’n v. U.S. R.R. Ret.

Bd., 749 F.2d 856, 859 n.6 (D.C. Cir. 1984) (“We decline to resolve this issue on the basis of



2
 Federal court jurisdiction arises under Title VII, 42 U.S.C. § 2000e-5(f)(3), and 28 U.S.C.
§§ 1331, 1343, and 1367. Because the alleged discrimination occurred in the District of
Columbia, and Plaintiff was employed by the District of Columbia Public Schools, venue is
proper here as well. See 28 U.S.C. § 1391(b)(1) and (2).
                                                 9
briefing which consisted of only three sentences in the [party’s] brief and no discussion of the

relevant statutory text, legislative history, or relevant case law.”). Thus, Ms. Younger has

conceded that her claims involving actions by Principal Slade cannot be proved. Accordingly,

the Court will enter judgment for Defendant.3

               However, material facts remain in dispute concerning whether Principal

Williams-Minor denied Ms. Younger a position at the Youth Engagement Academy because of

her age. DCPS argues that the undisputed facts show that Principal Williams-Minor selected

another candidate for the position due to her prior history working with that teacher and because

the teacher that was selected wanted a full-time position, while Ms. Younger was looking for a

part-time position. Ms. Younger contests those facts, citing her statements in her Amended

Complaint as record evidence that she was originally offered the position, but it was only

withdrawn when Principal Williams-Minor learned Ms. Younger’s age.

               While a nonmoving plaintiff may not “rely upon the mere allegations or denials of

her pleadings” to defeat a summary judgment motion, McCormick v. District of Columbia, 899

F. Supp. 2d 59, 64 (D.D.C. 2012), a verified complaint4 may “be treated as the functional

equivalent of an affidavit to the extent it satisfies the standards explicated in Rule 56(e).”

Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991); see also Neal, 963 F.2d at 457-58;

accord Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987);



3
  Although the Court will enter judgment in favor of DCPS on Ms. Younger’s claims that
retaliation and/or age discrimination caused her discharge by Principal Slade, it cannot be
determined from the record that her termination by Principal Slade would still have occurred if
Ms. Younger satisfies a factfinder that Principal Williams-Minor denied her a job at the Youth
Engagement Academy because of her age. DCPS does not argue that Principal Slade would
have retained such authority if Ms. Younger had earlier transferred to another school. This issue
may be relevant to Ms. Younger’s damages if she prevails on her remaining claim.
4
 A verified complaint is a complaint sworn under penalty to tell the truth and signed by the
author. See Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992).
                                               10
Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985). Rule 56(e) permits the use of

affidavits when they are “made on personal knowledge, . . . set forth such facts as would be

admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the

matters stated therein.” Fed. R. Civ. P. 56(e). Ms. Younger was appearing pro se when she filed

her Complaint and Amended Complaint and she prepared and signed both documents herself.

Because Ms. Younger was proceeding pro se, the Court construes her compliance with the rules

of civil procedure with a less stringent standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

(citations omitted)). Appearing before the Court without counsel at the beginning of this case,

Ms. Younger argued ably concerning the denial of a transfer. For its part, the District of

Columbia withheld the age of the successful teacher until the point of summary judgment

briefing. For these purposes, therefore, the Court will treat the Amended Complaint as Ms.

Younger’s affidavit indicating the facts about which she intends to testify at trial.

               Because the material facts concerning the denial of Ms. Younger’s application for

a transfer are contested, the record does not admit a decision on whether DCPS discriminated

against Ms. Younger due to her age when Principal Williams-Minor withdrew or refused to offer

a transfer to Ms. Younger to a new school. The Court will deny summary judgment to DCPS on

Ms. Younger’s claim that Principal Williams-Minor discriminated against her on the basis of her

age.

                                       IV. CONCLUSION

               The Court will grant in part and deny in part the District of Columbia’s motion for

summary judgment. The Court will grant summary judgment to the District of Columbia on Ms.

Younger’s claims that Principal Slade retaliated and/or discriminated against Ms. Younger when

                                                 11
he discharged her but will deny summary judgment on Ms. Younger’s claim that Principal

Williams-Minor discriminated against Ms. Younger because of her age in deciding to withdraw

or refuse to offer a transfer to a new school. A memorializing Order accompanies this

Memorandum Opinion.


Date: July 21, 2017                                               /s/
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge




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