                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

    CHINYERE UZOUKWU,

                        Plaintiff,

                        v.                          Case No. 11-cv-00391 (CRC)

    METROPOLITAN WASHINGTON
    COUNCIL OF GOVERNMENTS, et al.,

                        Defendants.

                                     MEMORANDUM OPINION

        On September 18, 2015, the Court granted in part and denied in part Defendants’ motion

for summary judgment in this employment-discrimination action against the Metropolitan

Council of Governments (“COG”) and three of its executives. See Uzoukwu v. Metro. Wash.

COG, 2015 WL 5541578 (D.D.C. Sept. 18, 2015) (Mem. Op., ECF No. 90). In that opinion, the

Court reviewed Defendants’ challenges to the following counts in Plaintiff Chinyere Uzoukwu’s

Amended Complaint: hostile work environment based on ethnicity in violation of 42 U.S.C.

§ 1981 by Calvin Smith, the former director of the department in which Uzoukwu worked

(Count I); retaliation in violation of 42 U.S.C. § 1981 by Smith (Count II); retaliation in violation

of 42 U.S.C. § 1981 by Paul DesJardin, Uzoukwu’s supervisor, and Imelda Roberts, COG’s

Director of Human Resources (Count VI); hostile work environment and disparate treatment

based on ethnicity in violation of 42 U.S.C. § 1981 by COG itself (Count IX); and retaliation in

violation of 42 U.S.C. § 1981 by COG (Count X). 1




1
  In an Order dated January 22, 2014, ECF No. 61, Judge Wilkins, who previously presided over
this case, dismissed all of the other counts in the Amended Complaint that remained following
Uzoukwu’s revisions to the original Complaint: tortious interference with economic advantage
       The Court found that Uzoukwu had proffered sufficient evidence to present her disparate

treatment claim against COG (part of Count IX) and retaliation claims (Counts II, VI, and X) to a

jury, but that she had not sufficiently made out a claim for hostile work environment (the other

part of Count IX). See Mem. Op., ECF 90. Defendants now move for clarification and

reconsideration of that ruling. They seek clarification on which claims survive against which

individual defendants, and they urge the Court to conclude that Uzoukwu has failed to make out

her disparate treatment claim and her retaliation claims against COG and individual Defendants

Smith and Roberts. 2

       The Court will grant in part and deny in part the motion for reconsideration. It concludes

that Uzoukwu has presented sufficient evidence for her retaliation claim against COG to survive

summary judgment, but that she has not made out a disparate treatment claim against COG or

retaliation claims against Smith or Roberts in their individual capacities.

       I.      Retaliation Claim Against Smith

       Uzoukwu alleges that she was terminated in retaliation for having complained of

discrimination. See Pl.’s Opp’n Defs.’ Mot. Clarification & Recons. 4 (noting that “each of the

remaining counts” in her Amended Complaint identified “terminat[ion]” and “loss of

employment” as the discriminatory and retaliatory adverse action she suffered (quoting Am.




by Smith (Count III); tortious interference by DesJardin and Roberts (Count VII); and negligent
retention and supervision by COG (Count XVI).
2
  Defendants do not appear to challenge the Court’s denial of summary judgment as to
Uzoukwu’s retaliation claim against DesJardin beyond asserting that, because DesJardin had a
hand in hiring Uzoukwu, the “same actor” inference “requires [her] to present further evidence”
to defeat their motion for summary judgment. Defs.’ Mot. Clarification & Recons. 5. As
discussed below, see note 5, infra, the Court is not persuaded by that argument. The Court will
therefore deny Defendants’ motion for reconsideration as to this claim, to the extent they so
move.

                                                 2
Compl., ECF No. 52 ¶¶ 109, 136, 158, 163)). In their motion for reconsideration, Defendants

emphasize that Smith was no longer employed at COG at the time of the termination; he retired

in January 2008, and Uzoukwu was terminated in March 2008. They also note that Uzoukwu

has not alleged that Smith participated in the termination decision.

       While Title VII of the Civil Rights Act of 1964, the usual vehicle for federal

employment-discrimination claims, “does not impose individual liability on supervisory

employees,” Gary v. Long, 59 F.3d 1391, 1400 (D.C. Cir. 1995), the statute under which

Uzoukwu brings her claims, 42 U.S.C. § 1981, can impose such liability “for personal

involvement in discriminatory activity” that violates that section, Brown v. Children’s Nat’l

Med. Ctr., 773 F. Supp. 2d 125, 136 (D.D.C. 2011) (quoting Zaidi v. Amerada Hess Corp., 723

F. Supp. 2d 506, 516–17 (E.D.N.Y. 2010)). The D.C. Circuit has not articulated a test for

individual liability under § 1981, but the Court is persuaded by the Seventh Circuit’s formulation

and application of the standard in Smith v. Bray, 681 F.3d 888 (7th Cir. 2012), a case with a

number of factual parallels to this one.

       Smith involved a claim of retaliation in violation of § 1981 by a human resources

manager. Because the plaintiff brought a claim of individual liability, the court concluded that

he had to show that the manager (1) “participated in the decision to fire him,” and (2) “was

motivated by a desire to retaliate against him for his complaints of . . . discrimination.” Id. at

892. The Second Circuit has similarly emphasized that “[p]ersonal liability under section 1981

must be predicated on the actor’s personal involvement” in the claimed violation, Patterson v.

Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (quoting Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)) (internal quotation mark omitted); that the

retaliation must have been “intentional,” id. at 226; and that there must have been “some



                                                  3
affirmative link to causally connect the actor with the [retaliatory] action,” id. at 229.

          In Smith, the Court held that the plaintiff failed to establish individual liability because,

although he demonstrated that the human resources manager participated in the decision to

terminate his employment, he failed to show that she was personally motivated by retaliatory

animus. The human resources manager had received complaints of harassment from the plaintiff

without investigating them, had occasionally refused to speak with the plaintiff, had met with the

deciding official in the lead-up to the plaintiff’s termination, and had prepared the plaintiff’s

termination report. See Smith, 681 F.3d at 893, 895, 900. Against those facts, the Court

determined that her participation in the termination decision was sufficiently established, but

that, without more evidence that her “personal motives included retaliation,” the plaintiff had

failed to demonstrate retaliatory animus. Id. at 901.

          Here, the reverse circumstances compel the conclusion that Uzoukwu has failed to

establish individual liability as to Smith. While she alleges facts that might support a finding of

retaliatory animus, 3 she does not dispute that Smith left the organization before she was

terminated, nor does she allege that he participated in the decision after leaving. Under the

Seventh and Second Circuits’ formulations, then, Uzoukwu has not sufficiently predicated

liability as to Smith on his “personal involvement” in the alleged adverse action. Patterson, 375

F.3d at 229; see also Smith, 681 F.3d at 892. Therefore, the Court will grant Defendants’ motion

for reconsideration as to this claim, as it cannot survive summary judgment.

          II.     Retaliation Claim Against Roberts

          Uzoukwu’s claim against Roberts, COG’s human resources director, fails for the same




3
    See section III, infra.

                                                     4
reasons as did the claim in Smith. Uzoukwu has demonstrated Roberts’s involvement in the

termination decision, but she has not established personal retaliatory animus. She points to

deposition testimony of David Robertson, COG’s Executive Director and the deciding official

for Uzoukwu’s termination. Robertson testified that, “working with Mr. DesJardin and Imelda

Roberts,” he decided to eliminate Uzoukwu’s position. Pl.’s Opp’n Mot. Summ. J., Ex. 15, at

31. In addition, he described having sought Roberts’s “perspective or recommendations,” id.,

and having solicited her input on the termination memo, id. at 33. As in Smith, where the human

resources manager had consulted with the deciding official prior to the termination and helped to

prepare the termination document, this evidence is sufficient to establish Roberts’s involvement

in the termination process.

       But also like the plaintiff in Smith, Uzoukwu has not put forward evidence sufficient to

demonstrate retaliatory motivation as to Roberts. Although the plaintiff in Smith showed that he

had complained of discriminatory treatment by his supervisor and that the human resources

manager was aware of those complaints, he failed to show that those complaints motivated her

decision to recommend his termination. Rather, he demonstrated only that she had failed to

investigate his complaints against the supervisor and other employees, that she had refused to

speak with him on occasion, and that his termination came soon after his complaints. See 681

F.3d at 901. Without more, these facts were insufficient “to present a genuine issue of fact as to

whether [the manager’s] personal motives included retaliation.” Id. The same is true here.

Uzoukwu has alleged only that she complained to Roberts of her low performance evaluation

and reduction of responsibilities, Pl.’s Opp’n Mot. Summ. J. 6; id. Ex. 4, at 87–90; id. Ex. 9; that

Roberts was aware of her complaints made directly to Smith and DesJardin, see id. Ex. 11; that

Roberts took no action following her complaint about a joke she overheard a former employee



                                                 5
making that she “ha[d] the right name, but . . . the wrong color,” see id. Ex. 4, at 135–40; and

that Roberts did not handle another complaint about a fellow employee as effectively as she

could have, see id. Ex. 4, at 182–84. Even if true, these facts suggest no more than that Roberts

was aware of the difficulties surrounding Uzoukwu’s employment at COG and that at times, she

failed to act on Uzoukwu’s complaints. They do not support a reasonable inference that Roberts

harbored a retaliatory bias. Therefore, Uzoukwu has failed to make out a claim of retaliation

against Roberts, and the Court will grant Defendants’ motion for reconsideration as to this claim.

       III.    Retaliation Claim Against COG

       Unlike her claims against Smith and Roberts, Uzoukwu’s retaliation claim against COG

is sufficiently supported to survive summary judgment. She has testified that she made several

complaints of discriminatory treatment, see id. Ex. 4, at 58, 88–89, 98–99, 109, 138–40, 4 and

there is no dispute that she was terminated. So the protected activity and adverse employment

action elements of Uzoukwu’s claim of retaliation are satisfied for purposes of summary

judgment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 578 (D.C. Cir. 2013). At issue on this

motion for reconsideration is the causation element; that is, whether Uzoukwu has proffered

sufficient evidence to establish that she was terminated because of retaliatory animus resulting

from her complaints of discrimination, rather than for the ostensibly legitimate reason proffered

by Defendants—that the economic downturn at the time forced it to cut staff.

       As discussed in the Court’s previous opinion, the “cat’s paw” theory of liability allows a

plaintiff to hold an employer liable without having to show retaliatory animus on the part of the




4
 Although Defendants challenge Uzoukwu’s assertion that she complained about the joke she
overheard, see Defs.’ Mot. Supp. Clarification & Recons. 10–11, that is a question of fact
appropriate for resolution at trial rather than at the summary judgment stage.

                                                 6
deciding official, so long as she can show that the deciding official was influenced either by

another official who harbored such animus or by an action by that official that proximately

caused the termination. See Uzoukwu, 2015 WL 5541578, at *10 (citing Staub v. Proctor Hosp.,

562 U.S. 411, 419 (2011)). Here, Uzoukwu has presented evidence from which a reasonable

jury could conclude that DesJardin, exhibiting his own retaliatory animus and being influenced

by that of Smith, in turn influenced the termination decision by consulting with Robertson, the

deciding official. Uzoukwu offers the following facts in support of DesJardin’s retaliatory

animus, Smith’s influence on his views, and DesJardin’s participation in her termination:

           •   DesJardin, along with Smith, reduced her work responsibilities, reassigning some
               of them to white employees, after she complained of his treatment of another
               African-American employee, Gary Givens, in May 2006. Pl.’s Opp’n Mot.
               Summ. J. 3–4; id. Ex. 4, at 68–69, 80, 89–90.

           •   DesJardin, along with Smith, assessed her performance at a low level in an
               appraisal in August 2006. See Pl.’s Opp’n Mot. Summ. J. 4–5; id. Ex. 4, at 81–
               86; id. Ex. 5.

           •   After she complained that the initial appraisal was discriminatory, DesJardin,
               along with Smith, changed her appraisal rating to a higher score and insisted that
               the lower rating had never been given. See Pl.’s Opp’n Mot. Summ. J. 7; id. Ex.
               1, at 20–21; id. Ex. 2, at 25–26; id. Ex. 3, at 26; id. Ex. 7; id. Ex. 8.

           •   In a memo to Uzoukwu, DesJardin, copying Smith and Roberts, characterized
               Uzoukwu’s complaint that the appraisal was discriminatory as “disturbing,” Pl.’s
               Opp’n Mot. Summ. J., Ex. 11, at 1, adding that he found her “pattern of making
               judgments against COG management and staff to be troubling and unacceptable,”
               id. at 2.

           •   In another memo to Uzoukwu, Smith, copying DesJardin and Roberts, expressed
               his “total disagreement” with her email complaint that a low performance rating
               he and DesJardin had given her was discriminatory, characterizing her complaint
               as “baseless and unwarranted,” lacking “collegiality,” “the most disturbing
               comment [he] ha[d] ever received in [his] 20 plus years of senior management,”
               and having a more “far reaching implication than a performance evaluation” in
               that “it seeks to undermine both the effectiveness of how [the department] is
               managed and the vision of the department moving forward.” Pl.’s Opp’n Mot.
               Summ. J., Ex. 13, at 1–2.

           •   In the same memo on which DesJardin was copied, Smith recommended that

                                                 7
               Uzoukwu receive counseling through COG’s Employee Assistance Program
               (“EAP”) “at [her] earliest opportunity” due to her “lack of confidence,”
               “unprofessional tone and baseless accusations toward management.” Id. at 2.

           •   DesJardin took no action following Uzoukwu’s complaint about the joke she
               overheard a coworker making about her having the “right name” but the “wrong
               color.” See Pl.’s Opp’n Mot. Summ. J. 12; id. Ex. 4, at 138–40.

           •   In a memo following up on an earlier mandatory referral of Uzoukwu to EAP
               counseling, DesJardin, along with Smith, notified Uzoukwu that she was required
               to consent to disclosure of her diagnosis and treatment information in order to
               fully cooperate with the referral. See id. Ex. 20, at 1.

           •   DesJardin consulted with Robertson, the deciding official, leading up to
               Uzoukwu’s termination, and aided Robertson in deciding to eliminate Uzoukwu’s
               position. See id. Ex. 15, at 31–32.

       A reasonable jury could conclude from these facts that DesJardin and Smith each

independently harbored retaliatory animus toward Uzoukwu; that, through their close

collaboration with respect to Uzoukwu’s complaints and disciplinary actions, DesJardin’s views

toward Uzoukwu were informed and influenced by Smith—who was DesJardin’s direct

supervisor, see id. Ex. 2, at 12; and that DesJardin, in turn, influenced Robertson’s decision to

terminate Uzoukwu through his participation in that decision. Because Smith was DesJardin’s

direct supervisor, a jury could conclude that Smith’s approach to Uzoukwu shaped their

communications with her and that, as a result, the memo that Smith authored and on which

DesJardin was copied—in which Smith criticized her for complaining about her performance

appraisal, see id. Ex. 13—influenced DesJardin’s perspective.

       In addition, Uzoukwu offers further evidence of DesJardin’s retaliatory animus in the

form of another memo addressed to her from Smith. This memo, on which no one else was

copied, informed Uzoukwu of her mandatory referral to the EAP. In it, Smith explained that

Uzoukwu was required to attend counseling sessions for, among other reasons, “inappropriate

emails,” which, a jury could conclude, referred to her emailed complaints of discrimination. Id.



                                                 8
Ex. 17, at 1. Although DesJardin was not copied on this memo, he testified in his deposition that

he consulted with Smith and Roberts on the decision to issue the referral, that the referral was

made on Roberts’s recommendation, and that he concurred with the decision. See id. Ex. 2, at

62. In addition, when asked if he had been involved in drafting the memo notifying Uzoukwu of

the mandatory referral, DesJardin answered, “I may have been, yes.” Id. at 64. This testimony

evinces not only an awareness of the contents of Smith’s memo to Uzoukwu, but a hand in

formulating them. A reasonable jury could conclude from this evidence that DesJardin agreed

with the decision to refer Uzoukwu to counseling in part because of her email complaints of

discrimination. 5

       A reasonable jury could also conclude that Uzoukwu has presented sufficient evidence to

rebut Defendants’ assertion that COG eliminated her position for legitimate reasons stemming

from its desire to reduce staffing levels due to the economic downturn. Defendants have

presented evidence that COG faced economic challenges, that it terminated Uzoukwu by way of

eliminating her position altogether, and that it has not replaced her. Uzoukwu responds with

evidence showing that, despite their purported need to reduce overhead, Defendants put forth no

reduction-in-force plan for the organization, and, although they reduced nine positions




5
  Defendants also contend that Uzoukwu’s retaliation claim is undermined by the fact that the
allegedly retaliatory actors—DesJardin and Smith—were the same people who chose to hire her
in the first place. See Defs.’ Mot. Supp. Clarification & Recons. 4–5. But Defendants
acknowledge that this “same actor inference” “is just that, an inference” that “cannot immunize”
against liability. Id. at 5 (quoting Czekalski v. Peters, 475 F.3d 360, 369 (D.C. Cir. 2007)). In
Czekalski, the D.C. Circuit explained that, while the same actor inference “is probative evidence
against a claim” that the hiring official “harbored a general animus” against those of the
plaintiff’s protected classification, it “cannot immunize” “from liability for subsequent
discrimination, nor is it alone sufficient to keep [a] case from a jury.” 475 F.3d at 368–69
(emphasis added). Here, Uzoukwu alleges discrimination and retaliation subsequent to her
hiring; she does not rely on a contention that Smith and DesJardin harbored general animus
toward African-Americans or people of her ethnicity.

                                                 9
throughout the organization in 2008, they added a position to Uzoukwu’s department as part of

the reorganization. See Pl.’s Opp’n Mot. Summ. J., Ex. 15, at 47 (deposition testimony of

Robertson that the statement that Uzoukwu’s department “went from 17 and a half full-time

equivalent positions to 18 and a half full-time equivalent positions” in the reorganization was

“correct”).6 Weighing the competing evidence, a reasonable jury could conclude that

Defendants’ proffered reasons for the termination were pretext for retaliation. Accordingly, the

Court will deny Defendants’ motion for reconsideration as to this claim.

       IV.     Disparate Treatment Claim Against COG

       Although the cat’s paw theory of liability likewise applies in the discrimination context,

see Walker v. Johnson, 798 F.3d 1085, 1095–96 (D.C. Cir. 2015) (applying the theory to

discrimination and retaliation claims arising from a termination decision), upon reconsideration,

the Court concludes that Uzoukwu has not proffered sufficient evidence to support her disparate

treatment claim. A disparate treatment claim requires demonstrating that the plaintiff “suffered

an adverse employment action”—here, termination— “because of” a protected status—here, her

ethnicity. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). In order to show that

an adverse employment action was taken “because of” a protected status, the plaintiff must

present evidence of discriminatory intent; “[p]roof of discriminatory motive is critical.” Davis v.

District of Columbia, 949 F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Anderson v. Zubieta, 180

F.3d 329, 338 (D.C. Cir. 1999)); see also id. at 7–8. Unlike with respect to the evidence offered

to support her retaliation claim, a reasonable jury could not conclude from the evidence




6
 Uzoukwu characterizes this as an addition of two positions because COG began by eliminating
Uzoukwu’s position, and then it added “two full-time positions” to her department. See Pl.’s
Opp’n Mot. Summ. J. 34–35.

                                                10
supporting this claim that discriminatory animus informed the termination decision such that it

was made intentionally “because of” Uzoukwu’s ethnicity.

       Uzoukwu contends that DesJardin and Smith reassigned her workload to white

coworkers, that they failed to act on her complaint about overhearing the “right name, wrong

color” joke, and that Smith admonished that she lacked “white privilege” and therefore had to

“be careful because [she was] black,” and “understand [her] position because [she was] black,”

Pl.’s Opp’n Mot. Summ. J. 11 (quoting id. Ex. 4, at 116). Given that Smith did not participate in

the termination decision, his comments hold significance only to the extent that the evidence

supports an inference that they influenced those involved in the decision—DesJardin and

Robertson—or that they evinced COG’s “general atmosphere of discrimination.” Santiago-

Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000). Because there is no

evidence in the record that either DesJardin or Robertson was aware of Smith’s comments

concerning “white privilege,” these comments could be probative only in the latter sense.

       While “statements made by ‘one who neither makes nor influences [a] challenged

personnel decision are [typically] not probative in an employment discrimination case,’” id. (first

alteration in original) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st

Cir. 1990)), “evidence of a company’s general atmosphere of discrimination ‘may be considered

along with any other evidence bearing on motive in deciding whether a . . . plaintiff has met her

burden of showing that the defendants’ reasons are pretexts,’” id. (quoting Sweeney v. Bd. of

Trustees, 604 F.2d 106, 113 (1st Cir. 1979)). And while “comments . . . concerning the

company’s treatment” of employees who share a plaintiff’s protected classification “are not

proof of discrimination[,] . . . they ‘add color to the decision-making process . . . and the reasons

given for’” the personnel action at issue. Id. at 56 (quoting Sweeney, 604 F.2d at 113). Smith’s



                                                 11
comments concerning “white privilege,” then, may be considered as probative of COG’s

“general atmosphere,” but they are not, by themselves, sufficient to substantiate Uzoukwu’s

disparate treatment claim.

       The meaning underlying these comments is far from unambiguous. As the Court

suggested in its previous opinion, a jury could infer that “Smith, as an African-American, might

well have intended simply to begin a frank conversation about the challenges that non-white

employees face in the workplace.” Uzoukwu, 2015 WL 5541578, at *7. Or, a jury could infer

that Smith was articulating the view, from his high-ranking position within the organization, that

COG is generally inhospitable to African-American employees—that the organization is one in

which such employees have to “be careful” because of their race or ethnicity. But even taking

these comments in the light most favorable to Uzoukwu, they “are not proof of discrimination,”

but rather may be considered only alongside “other evidence bearing on motive.” Santiago-

Ramos, 217 F.3d at 55. And here, the only other evidence of ethnicity discrimination proffered

is that DesJardin and Smith reassigned some of Uzoukwu’s workload to white employees and

that they failed to take action in response to her complaint about a joke she found disparaging.

Without more, this evidence is insufficient to substantiate a claim that her termination was the

product of discriminatory intent on the part of DesJardin and Robertson. The Court will

therefore grant Defendants’ motion for reconsideration as to this claim.

       V.      Conclusion

       For the foregoing reasons, Defendants’ Motion for Clarification and Reconsideration will

be granted in part and denied in part. An Order accompanies this Memorandum Opinion.



                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge
Date: February 8, 2016

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