['Battle v. Truland Systems Corporation']

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KEITH A. BATTLE

Plaintiff,

v. Civil Action No. 12-106 (CKK)

TRULAND SYSTEMS CORPORATION,

Defendant.

MEMORANDUM OPINION
(March 19, 2014)

Plaintiff Keith Battle filed suit against Defendant Truland Systems Corporation

(“Truland”) claiming a hostile work environment, retaliation, and disparate treatment in violation

of 42 U.S.C. § 1981. Plaintiff’s claims arise out of a series of racially charged incidents that

occurred while Plaintiff was employed as an electrician by Truland in the construction of the

new Washington Nationals baseball stadium. Presently before the Court is Defendant’s [26]

Motion for Summary Judgment. In the course of briefing Defendant’s Motion for Summary

Judgment, Plaintiff conceded his hostile work environment claim. See Pl.’s Opp’n. at 13.

Consequently, only Plaintiff’s retaliation and disparate treatment claims remain before the Court

to consider on summary judgment. Upon consideration of the pleadings1, the relevant legal

authorities, and the record as a whole, the Court finds that Plaintiff has failed to demonstrate that

1
Defendant’s Motion for Summary Judgment (“Def’s Mot.”), ECF No. [26]; Defendant’s
Statement of Undisputed Material Facts (“Def.’s Stmt.”), ECF No. [26-1]; Plaintiff’s Opposition
to Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n.”), ECF No. [27]; Plaintiff’s
Statement of Opposing Facts Which Show That There is a Genuine Dispute (“Pl.’s Resp.
Stmt.”), ECF No. [27-1]; Defendant’s Reply to Plaintiff’s Opposition (“Def.’s Reply”), ECF No.
[29].

  1
a genuine issue of material fact exists concerning his disparate treatment and retaliation claims.

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.

I. BACKGROUND

A. Factual Background

The following facts are not disputed by the parties. Plaintiff, an African American male and

a journeyman electrician, began working with Defendant Truland Systems Corporation

(“Truland”) on the construction of the Washington Nationals baseball stadium on November 5,

2007. Def.’s Stmt. ¶¶ 11, 13.2 Truland was responsible for the electrical subcontract on the

stadium project. Id. ¶ 2. On January 22, 2008, while Plaintiff was taking a break in the break

room at the stadium, another electrician picked up a noose that had been fashioned out of

electrical wire earlier in the day by two other employees, looked at Plaintiff, started laughing,

held the rope up to his own neck, and said “I’m outta here.” Id. ¶¶ 34, 38. The next day,

Plaintiff, Bradley Brown, and several other electricians who were present during the noose

incident reported the incident to their foreman, who in turn reported the incident up Truland’s

management chain. Id. ¶¶ 62, 64, 68, 70, 72, 77. A few days after the incident, Truland

terminated the employment of all of the individuals involved in the noose incident. Id. ¶ 102.

Truland Chairman and CEO Robert Truland also issued a public apology for the incident, as well

as a private apology to Plaintiff and an apology to all Truland employees in which Truland

expressed its opposition to the noose. Id. ¶¶ 125-29. On January 30, 2008, Truland management

appeared at a roundtable meeting of the D.C. City Council regarding the noose incident. Id. ¶

130. Plaintiff, Bradley Brown, and two other electricians also appeared and testified before the

2
The Court shall refer to Defendant’s Statement of Undisputed Material Facts (“Defs.’
Stmt.”), ECF No. [26-1], or directly to the record, unless a statement is contradicted by the
opposing party, in which case the Court may cite to Plaintiff’s Opposing Facts Which Show that
there is a Genuine Dispute (“Pl.’s Resp. Stmt.”), ECF No. [27-1].

  2
D.C. City Council. Id. ¶ 131. Plaintiff alleges that during the meeting Robert Truland testified

that Plaintiff would not be terminated for the next two years. Pl.’s Resp. Stmt. ¶ 23; Pl.’s Ex. 18.

Around the same time, Plaintiff and several other electricians also complained to Truland

management about racial graffiti in the portable toilets at the stadium. Def.’s Stmt. ¶¶ 109-117.

Truland had the graffiti painted over and signs warning against graffiti were placed in the

portable toilets. Id. ¶¶ 118-119, 121. Finally, on February 6, 2008, Plaintiff reported to

Truland’s management that an employee of Mahogany Interior who was also employed at the

stadium jobsite had made inappropriate racial comments. Id. ¶ 140. Truland in turn reported the

incident to Mahogany Interior’s management and the Mahogany Interior employee was fired. Id.

¶¶ 145, 151.

On March 10, 2008, Plaintiff, at his request, was promoted to subforeman. Id. ¶ 156; Pl.’s

Ex. 9 (EEOC Complaint). Initially, Plaintiff was not paid the increased rate of a subforeman. Id.

¶ 173. On May 6, 2008, Plaintiff filed a complaint with the EEOC explaining that although he

had been promoted to subforeman, his salary was not increased and he had not been given

responsibilities commensurate with his position. See Pl.’s Ex. 9 (EEOC Complaint). Plaintiff

alleged that he was being discriminated against based on his race and in retaliation for his

complaints regarding the noose incident. Id. Sometime thereafter, Plaintiff began to be paid the

increased rate and was retroactively paid for the increased rate back to the time at which he

became subforeman. Def.’s Stmt. ¶ 173. Although Plaintiff alleged in his EEOC complaint that

his lower salary and responsibilities were the effects of discrimination and retaliation, in his

Opposition to Defendant’s Motion for Summary Judgment Plaintiff does not now claim either as

an adverse employment action.

  3
 In May 2008, the Washington Nationals stadium project was coming to a close, and Truland

was laying off and transferring a lot of workers. Id. ¶¶ 185, 187-88. On June 13, 2008, Plaintiff

was transferred from the stadium jobsite. Id. ¶ 189. Prior to Plaintiff’s reassignment from the

stadium project, Truland management discussed via email to which project Plaintiff and Bradley

Brown could be assigned. Id. ¶ 190; Pl.’s Ex. 19 (Email Exchange Regarding Transfer). As part

of the email exchange, Joe Roscher, a Truland Vice President and project executive, indicated

that Truland “need[s] to keep Battle and Brown for at least a year.” Pl.’s Ex. 19 (Email

Exchange Regarding Transfer), at D660. Howard “Al” Silcott, Truland’s general superintendent

with responsibility for the stadium project, recommended that Plaintiff and Bradley Brown be

assigned to GEICO, a Truland project in Fredericksburg, Virginia, because it was a “cost-plus”

construction contract, which would permit Truland to obtain reimbursement under the contract

for the additional labor hours that Plaintiff and Bradley Brown’s assignment to the project would

foster. Id. at D659; see also Def.’s Stmt. ¶ 192. In his email proposing the reassignment to

GEICO, Mr. Silcott wrote: “got to get them [Plaintiff and Bradley Brown] off stadium.” Pl.’s

Ex. 19 (Email Exchange Regarding Transfer), at D659. In response to Mr. Silcott’s email, Dean

Filomena, a Truland general superintendent for the One Noma project, wrote:

I’m laying off 10 a week for the next 3 to 4 weeks at Geico and will be coming
down at One Noma at the end of the month I can swap some out I don’t need your
problem children.

Id. Shortly thereafter, Plaintiff was told he would be transferred to the GEICO project, but,

concerned about the travel time, Plaintiff researched Truland’s other projects, and requested to

be assigned to the One Noma project in Washington, D.C. Id. ¶ 193. Per his request, Truland

transferred Plaintiff to the One Noma project instead. Id. ¶ 194. Plaintiff never went to the

GEICO job site. Id.

  4
 When Plaintiff arrived at the One Noma project in June 2008, the project was already coming

to an end. Id. ¶ 200. John Young, the owner of Nationwide Electric (“Nationwide”), called Mr.

Filomena to ask if Truland had anyone who would be interested in coming to work for him. Id. ¶

201. Mr. Filomena spoke to Plaintiff about the opportunity at Nationwide and Plaintiff

expressed his interest in accepting the opportunity. Id. ¶¶ 203-04. Had Plaintiff not taken the

Nationwide position, he likely would have been laid off from Truland because the One Noma

project was coming to an end. Id. ¶ 210. In order to take the position at Nationwide, Plaintiff’s

employment at Truland had to be terminated. Id. ¶ 205. Plaintiff’s employment with Truland

ended on July 3, 2008, and Plaintiff began working at Nationwide during the first week of July

2008. Id. ¶ 207.

On August 22, 2008, Nationwide terminated Plaintiff’s employment. Id. ¶ 212. After

Plaintiff was terminated, Plaintiff registered on the out-of-work list with the International

Brotherhood of Electrical Workers (“IBEW”) Union. Id. ¶ 214. Plaintiff was then hired by

VARCO/MAC from October 31, 2008, until January 2, 2009, when he was terminated. Id. ¶¶

214-15. After his termination, Plaintiff again registered with the IBEW Union’s out-of-work list.

Id. ¶ 217. The Collective Bargaining Agreement (“CBA”) that IBEW had with Truland,

Nationwide, and VARCO/MAC provided that “[t]he Union shall be the sole and exclusive

source of referral of applicants for employment.” Id. ¶ 220. Under the CBA, the Union is

required to “refer applicants in the order of their place on the out-of-work list on which

applicants are listed in chronological order of the dates they registered their availability for

employment.” Id. ¶ 222. As a result of not being in a position high enough on the out-of-work

list at a point when Truland sought electricians from the Union hiring hall, the Union never

referred Plaintiff to Truland after his employment with Truland terminated in 2008. Id. ¶ 231.

  5
 B. Procedural Background

Plaintiff filed this lawsuit on January 23, 2012, alleging three counts against Truland:

retaliation, disparate treatment based on race, and hostile work environment. Shortly after the

completion of discovery, Defendant filed the present Motion for Summary Judgment. In

Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, Plaintiff concedes his

hostile work environment claim on the basis that “defendant took prompt action to correct the

situation.” Pl.’s Opp’n. at 13. Plaintiff’s Opposition also refines the scope of his retaliation and

disparate treatment claims. Specifically, Plaintiff alleges that he suffered three adverse

employment actions because of his protected activity: (1) his reassignment from the stadium

project to the One Noma project on June 16, 2008; (2) his termination from Truland on July 3,

2008, in order to work at Nationwide; and (3) his non-rehire by Truland after he was laid off

from Nationwide. Id. at 6-8. Although Plaintiff’s pleadings are far from a model of clarity,

Plaintiff appears to allege that these three actions also form the basis of his disparate treatment

claim. See id. at 12. Plaintiff also alleges a list of fourteen protected activities in which he

engaged at the beginning of 2008. Id. at 5-6. Five of the alleged protected activities relate to

complaints Plaintiff made about the noose incident, the graffiti, and the Mahogany employee’s

racial comments. Id. at 5. The other protected activities relate to complaints Plaintiff made to

Truland management about African American employees being underpaid, workplace diversity

generally, the lack of minority participation on the stadium project, the failure of a Truland

employee to contact Plaintiff for a witness statement about a Caucasian foreman striking an

African American foreman, Plaintiff’s pay rate, Plaintiff’s reassignment to the GEICO project,

and the sexual harassment of a female on the One Noma project. Id. at 5-6.

Defendant moves the Court to grant summary judgment in Defendant’s favor on all of

Plaintiff’s claims on the basis that Plaintiff cannot establish a prima facie case of retaliation or

  6
disparate treatment or show that Defendant’s legitimate, nondiscriminatory reasons for

reassigning, terminating, and failing to rehire Plaintiff are pretextual.

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that he] . . . 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 his 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.

Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. 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).

  7
 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) (citing Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638

(D.C. Cir. 1994)). In the end, the district court’s task is to determine “whether the evidence

presents a sufficient disagreement to require submission to [the trier of fact] 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 sufficiently probative, summary

judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

Importantly, “[w]hile summary judgment must be approached with special caution in

discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by

affidavits or other competent evidence showing that there is a genuine issue for trial.” Morgan v.

Fed. Home Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001), aff’d, 328 F.3d 647

(D.C. Cir. 2003); see also Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (special

caution “does not eliminate the use of summary judgment in discrimination cases”) (citing

cases). Accordingly, the Court reviews the Defendant’s Motion for Summary Judgment under a

“heightened standard” that reflects “special caution.” Aka v. Washington Hosp. Ctr., 116 F.3d

876, 880 (D.C. Cir. 1997) (internal quotations omitted), overturned on other grounds, 156 F.3d

  8
1284 (D.C. Cir. 1998) (en banc). Nonetheless, while this special standard is more exacting, it is

not inherently preclusive. Although more circumspect, the Court shall grant a motion for

summary judgment where the nonmoving party has failed to submit evidence that creates a

genuine factual dispute and the moving party is entitled to a judgment as a matter of law.

III. DISCUSSION

The Court notes at the outset that this case involved several serious incidents of racial

harassment during the construction of the new Washington Nationals baseball stadium. These

incidents were of great concern to the Washington, D.C. community and led the Council of the

District of Columbia to introduce legislation making it a criminal offense to display a noose on

any private or public property in the District if the intent of the action is to deprive a person of

equal protection of the law, injure a person, intimidate a person exercising a federal right, or

cause fear for personal safety. See Pl.’s Ex. 4 (Kwame Brown Press Release). Plaintiff’s initial

hostile work environment claim against Defendant Truland was predicated on these serious

incidents of racial harassment. However, Plaintiff concedes that following these incidents,

Truland “took prompt action to correct the situation” and thus should not be held liable for

creating a hostile work environment. Pl.’s Opp’n. at 13. In light of this concession, the Court’s

analysis shall focus only on Plaintiff’s remaining claims that Truland retaliated against him for

making a series of complaints and that Truland discriminated against him based on his race in

violation of 42 U.S.C. § 1981.

A. Disparate Treatment

Section 1981, as amended by the Civil Rights Act of 1991, prohibits racial discrimination

in the “making, performance, modification, and termination of contracts, and the enjoyment of

all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981;

see also Rivers v. Roadway Express, 511 U.S. 298, 302 (1994) (Ҥ 1981's prohibition against

  9
racial discrimination in the making and enforcement of contracts applies to all phases and

incidents of the contractual relationship . . . .”). Under Section 1981 as under Title VII,3 Plaintiff

must demonstrate by a preponderance of the evidence that the actions taken by his employer

were “more likely than not based on the consideration of impermissible factors” such as race,

ethnicity, or national origin. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)

(internal quotation marks and citation omitted). In so doing, “the plaintiff may prove his claim

with direct evidence, and absent direct evidence, he may indirectly prove discrimination” under

the burden-shifting analysis created by McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Brady v. Livingood, 456 F.Supp.2d 1, 6 (D.D.C. 2006), aff’d Brady v. Office of Sergeant

at Arms, 520 F.3d 490 (D.C. Cir. 2008). As Plaintiff proffers no direct evidence that Truland

discriminated against him based on his race, the McDonnell Douglas framework applies here.

Under this paradigm, a plaintiff has the initial burden of proving a prima facie case by a

preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. If he succeeds, the

burden shifts to the defendant to articulate some legitimate, non-discriminatory or non-retaliatory

reason justifying its conduct. Id. If the defendant is successful, then “the McDonnell Douglas

framework—with its presumptions and burdens—disappear[s], and the sole remaining issue [is]

discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43

(2000) (internal citations and quotation marks omitted).

For a claim alleging disparate-treatment discrimination, a plaintiff makes out a prima

facie case by showing (1) that he is a member of a protected group; (2) that he suffered an

adverse employment action; and (3) the unfavorable action gives rise to an inference of

3
“[T]he same standards apply in evaluating claims of discrimination and retaliation under
Title VII and § 1981.” Kidane v. Northwest Airlines, Inc., 41 F.Supp.2d 12, 17 (D.D.C. 1999);
see also Ramey v. Potomac Electric Power Co., 468 F.Supp.2d 51, 58 n.9 (D.D.C. 2006) (same).

  10
discrimination. Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). At the summary

judgment stage, however, the D.C. Circuit has instructed that, once an employer provides a

legitimate, non-discriminatory basis for its decision, “the district court need not—and should

not—decide whether the plaintiff actually made out a prima facie case under McDonnell

Douglas.” Brady, 520 F.3d at 494 (emphasis in original). Rather, the central question for the

Court to resolve is whether “the employee produced sufficient evidence for a reasonable jury to

find that the employer's asserted non-discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the employee on the basis of race, color, religion,

sex, or national origin.” Id. Effectively, “[t]his boils down to two inquiries: could a reasonable

jury infer that the employer's given explanation was pretextual, and, if so, could the jury infer

that this pretext shielded discriminatory motives?” Murray v. Gilmore, 406 F.3d 708, 713 (D.C.

Cir. 2005).

Nevertheless, the Supreme Court has taken care to instruct trial courts that “the trier of

fact may still consider the evidence establishing the plaintiff's prima facie case ‘and inferences

properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.’”

Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 255 n.10). “[A] plaintiff's prima facie

case, combined with sufficient evidence to find that the employer's justification is false, may

permit the trier of fact to conclude that the employer unlawfully discriminated.” Id. at 148. The

Court of Appeals for the District of Columbia Circuit has distilled this analysis, noting that the

factfinder can infer discrimination from the combination of:

(1) the plaintiff's prima facie case; (2) any 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) or
any contrary evidence that may be available to the employer (such as evidence of
a strong record in equal opportunity employment).

  11
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc). However,

evidence in each of the three categories is not required. Id. “At this stage, if [the plaintiff] is

unable to adduce evidence that could allow a reasonable trier of fact to conclude that [the

defendant's] proffered reason was a pretext for discrimination, summary judgment must be

entered against [plaintiff].” Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27–28 (D.C. Cir.

1997). “[T]he court must consider all the evidence in its full context in deciding whether the

plaintiff has met his burden of showing that a reasonable [fact-finder] could conclude that he has

suffered discrimination.” Aka, 156 F.3d at 1290.

B. Retaliation

The Supreme Court has also held that Section 1981 encompasses claims of retaliation.

CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008). “Like claims of discrimination,

claims of retaliation are governed by the McDonnell Douglas burden-shifting scheme.” Carney

v. Am. Univ., 151 F.3d 1090, 1094 (D.C. Cir. 1998) (citing McKenna v. Weinberger, 729 F.2d

783, 790 (D.C. Cir. 1984)). As Plaintiff proffers no direct evidence that Truland retaliated

against him for his protected activity, the McDonnell Douglas framework applies here. Under

the McDonnell Douglas paradigm, Plaintiff has the initial burden of proving a prima facie case

of retaliation by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. To

prove unlawful retaliation, a plaintiff must show that (1) he engaged in statutorily protected

activity; (2) his employer took an adverse personnel action against him; and (3) a causal

connection exists between the two. Wiley, 511 F.3d at 155. If Plaintiff succeeds in establishing

a prima facie case, the burden then shifts to Truland to articulate some legitimate, non-retaliatory

reason for its actions, and to produce credible evidence supporting its claim. McDonnell

Douglas, 411 U.S. at 802. However, as with disparate treatment claims, at the summary

  12
judgment stage, if the employer produces a legitimate non-discriminatory reason for its actions,

“the district court need not—and should not—decide whether the plaintiff actually made out a

prima facie case under McDonnell Douglas;” “the only question is whether the employee's

evidence creates a material dispute on the ultimate issue of retaliation.” Jones v. Bernanke, 557

F.3d 670, 678 (D.C. Cir. 2009) (quoting Brady, 520 F.3d at 494) (emphasis in original) (internal

quotation marks omitted).

C. Analysis

Plaintiff alleges that Truland took three adverse employment actions against him that

were motivated by retaliatory and discriminatory animus: (1) his reassignment from the stadium

project to the One Noma project on June 16, 2008 (“Plaintiff’s reassignment”); (2) his

termination from Truland on July 3, 2008, in order to work at Nationwide (“Plaintiff’s

termination”); and (3) his non-rehire by Truland after he was laid off from Nationwide

(“Plaintiff’s non-rehire”). Pl.’s Opp’n. at 6-8. Although Plaintiff’s Opposition does not clearly

distinguish between these three adverse actions in discussing Plaintiff’s evidence of retaliation

and discrimination, for the sake of clarity the Court shall independently analyze each

employment action, Truland’s proffered legitimate, non-discriminatory reason for that action,

and Plaintiff’s evidence of pretext. As Defendant Truland has offered a legitimate, non-

discriminatory reason for each adverse employment action against Plaintiff, the only question for

the Court to address is “whether [Plaintiff’s] evidence creates a material dispute on the ultimate

issue of retaliation” or disparate treatment. Jones, 557 F.3d at 678 (quoting Brady, 520 F.3d at

494).

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 i. Plaintiff’s Reassignment

Truland contends that Plaintiff was reassigned from the Washington Nationals stadium

project to the One Noma project on June 16, 2008, because the stadium project was coming to a

close, and, as a result, Truland was laying off and transferring a lot of workers from the stadium

project. Def.’s Stmt. ¶¶ 185, 187-88. Truland also explains that it initially sought to transfer

Plaintiff to the GEICO project because it was a “cost-plus” construction contract, but that it

ultimately transferred Plaintiff to the One Noma project at Plaintiff’s own request. Id. ¶¶ 190,

192-94. In his response statement to Defendant’s statement of material facts, Plaintiff concedes

that the stadium project was coming to an end. Plaintiff also concedes that he was transferred to

the One Noma project at his own request. Nevertheless, in his Opposition, Plaintiff argues that

Truland’s explanation for Plaintiff’s reassignment off the stadium project is pretext for retaliation

and racial discrimination.4 As evidence that Truland’s explanation is pretextual, Plaintiff points

to the following: (1) the email by Al Silcott in which Mr. Silcott writes that he needs to “get”

Plaintiff and Bradley Brown off the stadium project and (2) the email response by Dean

Filomena in which Mr. Filomena refers to Plaintiff and Bradley Brown as “problem children.”

The Court finds this evidence insufficient to create a genuine issue of material fact as to whether

Truland’s legitimate, non-discriminatory reason for Plaintiff’s reassignment is pretext for racial

discrimination or retaliation.

4
In his Opposition, Plaintiff conclusorily states that he “has made out a prima facie case
of disparate treatment,” see Pl.’s Opp’n. at 1, but never actually articulates an argument as to
how he has established such a prima facie case or as to how Truland’s actions raise an inference
of discrimination despite Truland’s legitimate, non-discriminatory reasons for its adverse
employment actions, see Pl.’s Opp’n. at 12. The Court has conducted a generous reading of
Plaintiff’s Opposition and considered the evidence of pretext and discriminatory motive on
which Plaintiff relies to support his retaliation claim in evaluating Plaintiff’s disparate treatment
claim, to the extent that such evidence would support such a claim.

  14
 First, Mr. Silcott’s statement that he needed to “get” Plaintiff and Bradley Brown off the

stadium project neither on its face nor implicitly shows retaliatory or discriminatory intent.

Instead, the statement appears to simply reflect the fact—which Plaintiff does not dispute—that

the stadium project was ending at the time the statement was made and that, as a result, Truland

had to lay off or reassign the workers remaining on the project. Accordingly, the Court finds this

statement does not raise an inference of discriminatory or retaliatory motive in Plaintiff’s

reassignment.

Second, contrary to Plaintiff’s contention, Mr. Filomena’s reference to Plaintiff and Mr.

Brown as “problem children” is not direct evidence of retaliation or discrimination. A remark is

not direct evidence unless it “proves the particular fact in question without any need for

inference.” Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 86 (D.D.C. 2006)

(citations omitted). In other words, the remark must show a discriminatory or retaliatory motive

on its face. Id. Calling two individuals “problem children” in an email exchange that is

otherwise devoid of any racial reference or mention of protected activity is not direct evidence of

discrimination. Such a remark may nevertheless be probative of discriminatory or retaliatory

animus. However, Mr. Filomena’s remark in the context of the email exchange in which it

occurred has extremely limited probative value. Instead of a reference to Plaintiff’s engagement

in protected activity, Mr. Filomena’s comment can be understood as a reaction to the assignment

of additional workers that Truland management believed needed to remain employed while Mr.

Filomena was already in the process of laying off workers at the GEICO project and would next

start laying off workers from the One Noma project. Mr. Filomena’s remark is even less

probative of racial discrimination because “nothing in the statement suggests that the plaintiff

was being targeted based upon [his race].” Warner v. Vance-Cooks, 956 F.Supp.2d 129, 157

  15
(D.D.C. 2013). Even more direct statements have been held insufficient to create a triable issue

when the defendant offered a legitimate, non-discriminatory reason for the challenged decision

that the plaintiff otherwise failed to rebut as pretext. See Forman v. Small, 271 F.3d 285, 293

(D.C. Cir. 2001) (in age discrimination suit, “series of comments . . . that implicitly referred to

[the plaintiff's] age [including] . . . that [the plaintiff] may be ‘over the hill’ or in the ‘twilight of

his career,’ and may have ‘written his last significant article’ ” may support prima facie case but

did not show legitimate reason given by employer for denying promotion was pretext).

Accordingly, the Court finds Mr. Filomena’s stray remark insufficient to raise an inference that

Truland’s explanation for Plaintiff’s reassignment is pretext for discrimination or retaliation.5

ii. Plaintiff’s Termination

As for Plaintiff’s lay-off from the One Noma project and Truland in July 2008, Truland

contends that when Plaintiff arrived at the One Noma project in June 2008, the project was

already coming to an end. Def.’s Stmt. ¶ 200. Mr. Filomena, general superintendent of the One

Noma project, spoke to Plaintiff about an opportunity at Nationwide that was brought to Mr.

Filomena’s attention and Plaintiff expressed his interest in accepting the opportunity. Id. ¶¶ 203-

04. Truland further contends that had Plaintiff not taken the Nationwide position, he likely

5
To the extent Plaintiff is citing Mr. Filomena’s remark as evidence of retaliatory or
discriminatory animus in Plaintiff’s termination from Truland in order to work at Nationwide or
Truland’s failure to rehire Plaintiff, the Court notes that Mr. Filomena’s remark is not direct
evidence of discrimination or retaliation. “While courts have not precisely defined what
constitutes ‘direct evidence,’ it is clear that ‘at a minimum, direct evidence does not include stray
remarks in the workplace, particularly those made by nondecision-makers or statements made by
decisionmakers unrelated to the decisional process itself.’ ” Brady, 456 F.Supp.2d at 6 (citing
Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 96 (1st Cir.1996) (citing Price
Waterhouse v. Hopkins, 490 U.S. 228, 251–52 (1989) (plurality op.))). Here, Mr. Filomena’s
statement related only to Plaintiff’s reassignment from the stadium project, not to Plaintiff
termination from Truland or to Truland’s failure to rehired Plaintiff. Moreover, for the same
reasons (outlined supra) that Mr. Filomena’s statement is not probative of discriminatory or
retaliatory animus in Plaintiff’s reassignment, it is also not probative of retaliatory or
discriminatory animus in Plaintiff’s termination or Truland’s failure to rehire Plaintiff.

  16
would have been laid off from Truland because the One Noma project was coming to an end. Id.

¶ 210. In order for Plaintiff to accept the position at Nationwide—a different company—

Plaintiff’s employment at Truland had to be terminated. Id. ¶ 205. As with Truland’s

explanation for Plaintiff’s reassignment, Plaintiff concedes that the One Noma project was

coming to an end and that he agreed to take the position at another company, Nationwide, when

Mr. Filomena presented the opportunity to him. Nevertheless, as evidence that Truland’s

explanation is pretextual, Plaintiff points to the following: (1) the fact that Truland was

conducting work at more than twenty job sites in and around D.C. when Plaintiff was terminated

from Truland, and (2) statements by two Truland executives that Plaintiff needed to remain

employed by Truland for one or two more years. Specifically, Plaintiff argues that the fact that

Truland admits it was conducting work at more than twenty job sites at the time Plaintiff was

terminated from Truland exposes as fallacious Truland’s claim that it terminated Plaintiff’s

employment with Truland because the One Noma project was ending. In other words, Plaintiff

contends that Truland could have employed him at one of several other job sites and thus did not

need to terminate him when the One Noma project ended, suggesting that Truland actually

terminated him for retaliatory or discriminatory reasons. This evidence, however, fails to create

a genuine issue of material fact. As Defendant explains, the presence of a project on Truland’s

list of job sites is not an indication that any particular project had any need for electricians.

Def.’s Mot. at 24-25. Moreover, Plaintiff presents no evidence that Truland had any open

positions for which Plaintiff was qualified at the time he was terminated from Truland.

Accordingly, the Court finds that, with this fact, Plaintiff fails to create a genuine dispute as to

whether Defendant’s reason for terminating Plaintiff was the actual reason.

  17
 As further evidence of pretext, Plaintiff points to the fact that Rob Truland, Truland’s

Chairman and CEO, testified before the D.C. Council that Plaintiff would not be terminated from

Truland for the next two years, and that Joe Roscher, Truland’s Vice President and project

executive, stated in an email that Truland needed to keep Plaintiff for at least one year, yet

Plaintiff was terminated less than a year after these statements were made.6 These facts, standing

alone, do not suggest Defendant acted with a discriminatory or retaliatory motive in terminating

Plaintiff from Truland or that Defendant’s reasons for terminating Plaintiff were not its actual

reasons. These facts only show that Defendant failed to keep an alleged promise regarding the

duration of Plaintiff’s employment, but they do not establish or even suggest why Defendant

failed to keep that promise. As Plaintiff otherwise presents no evidence that he was treated

worse than other similarly situated electricians in being terminated from Truland, the Court finds

6
Plaintiff alleges in his response statement to Defendant’s statement of material facts that
Robert Truland testified before the D.C. Council that he would keep Plaintiff’s job secure for
two years. See Pl.’s Resp. Stmt. ¶ 23. As support for this allegation, Plaintiff cites to a letter that
Plaintiff wrote to an unidentified individual or entity in which he states: “the owner testified in
the Hearing that our position would be secure for at least two years.” See Pl.’s Ex. 18.
Plaintiff’s allegation regarding Robert Truland’s statement cannot be considered for the purposes
of summary judgment. To survive summary judgment, the non-moving party must “produce
evidence . . . capable of being converted into admissible evidence.” Greer v. Paulson, 505 F.3d
1306, 1315 (D.C. Cir. 2007) (quoting Gleklen v. Democratic Cong. Campaign Comm., 199 F.3d
1365, 1369 (D.C. Cir. 2000)). “[S]heer hearsay . . . counts for nothing on summary judgment.”
Id. (internal quotation marks omitted). Robert Truland’s alleged statement is nothing more than
inadmissible hearsay. Plaintiff does not indicate whether he actually heard Mr. Truland’s
statement and, despite apparently having access to the transcript of the hearing where Mr.
Truland made the alleged statement, see Def.’s Reply at 5, Plaintiff does not include the
transcript in the exhibits he attached to his Opposition. Accordingly, the Court shall not rely on
Mr. Truland’s hearsay statement. However, Mr. Truland’s statement is ultimately immaterial
because Plaintiff presents evidence that another Truland employee, Joe Roscher, also made a
comment about needing to employ Plaintiff for a period longer than he was ultimately employed
by Truland. In his exhibits, Plaintiff corroborates this statement with a copy of the email in
which Mr. Roscher made the statement. Thus, the Court shall still evaluate this specific
argument regarding pretext.

  18
these facts do not create a material dispute as to whether Truland’s reason for terminating

Plaintiff is pretext for discrimination or retaliation.

iii. Plaintiff’s Non-Rehire

Finally, Truland contends that Plaintiff was never rehired by Truland after he was laid off

from Nationwide because the IBEW Union’s CBA with Truland provided that “[t]he Union shall

be the sole and exclusive source of referral of applicants for employment” and Plaintiff was

never in a position high enough on the out-of-work list at a point when Truland sought

electricians from the Union hiring hall. Def.’s Stmt. ¶ 231. Although Plaintiff concedes that he

was never in a position high enough on the Union out-of-work list when Truland sought

electricians from the Union, Plaintiff argues that Truland’s failure to rehire him was retaliatory.

As evidence of retaliation, Plaintiff points to the fact that another electrician, Charles Brown,

who was previously employed by Truland, but did not engage in protected activity at Truland,

was rehired by Truland while Plaintiff was not rehired.

The fact that another electrician, Charles Brown, who Plaintiff alleges was not engaged in

protected activity, was rehired by Truland in October 2008 while Plaintiff was not is, without

more, insufficient to raise an inference of retaliation. Plaintiff alleges that he and Mr. Brown

both served as electricians with Truland and later Nationwide and were laid off from Nationwide

at the same time. Plaintiff further alleges that Mr. Brown was rehired by Truland in October

2008, while Plaintiff was not despite both Plaintiff and Mr. Brown “keeping in touch with Mr.

Filomena [and] inquiring about vacancies with Truland.” Pl.’s Resp. Stmt. ¶ 32. Plaintiff was,

however, hired by VARCO/MAC in October 2008, the same month Mr. Brown was rehired by

Truland. These facts do not create a genuine issue of material fact because Plaintiff does not

present any facts suggesting that Plaintiff was in a position to be hired by Truland at the time Mr.

  19
Brown was rehired by Truland. The undisputed facts establish that Truland was required to

exclusively hire electricians referred to it from the IBEW Union out-of-work list, and that

referrals were made in the order of the electrician’s place on the out-of-work list. Plaintiff

presents no facts as to when he registered on the out-of-work list and especially when he

registered as compared to Mr. Brown’s registration. Moreover, Plaintiff does not present any

facts indicating when the position taken by Mr. Brown became available at Truland nor when

that position became available in relation to the position Plaintiff was offered by VARCO/MAC,

which he began the same month as Mr. Brown was rehired by Truland. In other words,

Plaintiff’s comparator evidence is insufficient to create a genuine dispute on the issue of

retaliation because Plaintiff does not allege any facts as to whether Mr. Brown was in a higher

position on the Union’s out-of-work list than Plaintiff and referred to Truland instead of Plaintiff

when a position became available or, alternatively, that Plaintiff was in a higher position on the

out-of-work list, but the opportunity at VARCO/MAC became available first and thus Plaintiff

was never referred to Truland. Plaintiff focuses on the fact that he kept in touch with Mr.

Filomena about opportunities at Truland after he was terminated from Truland, but Plaintiff does

not dispute that under the CBA an employer may only request an electrician by name if “the

employee’s name appears on the highest priority group eligible for referral.” Def.’s Stmt. ¶ 228.

Plaintiff presents no facts suggesting that he was in that priority group or that an opportunity was

ever available for which Plaintiff was qualified. Importantly, Plaintiff concedes the fact that “as

a result of not being in a position high enough on the out-of-work list at a point when Truland

sought electricians from the Union hiring hall, the Union never referred Plaintiff to Truland after

his employment with Truland terminated in 2008.” Id. ¶ 231. Accordingly, the Court finds that

  20
Plaintiff’s reliance on this comparator fails to raise an inference the Truland retaliated against

Plaintiff in failing to rehire him after he was laid off from Nationwide.

iv. Other Evidence

The Court finds that none of the evidence discussed supra is sufficient, individually or

collectively, to create a genuine issue of material fact as to whether Defendant’s legitimate, non-

discriminatory reasons for any of its adverse employment actions are pretext for racial

discrimination or retaliation. The only other evidence to which Plaintiff points in his pleadings is

that he engaged in protected activity7 shortly before he was reassigned, terminated, and not

rehired. While close temporal proximity between a protected activity and an adverse

employment action is sufficient to establish causation at the prima facie stage of a retaliation

claim, “positive evidence beyond mere proximity is required to defeat the presumption that [an

employer’s] explanations are genuine.” Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).

As Defendant has offered a legitimate, non-discriminatory reason for the adverse actions it took

against Plaintiff and Plaintiff has not offered any evidence sufficient to create a genuine dispute

as to the veracity of Defendant’s reasons or otherwise raise an inference of retaliatory motive,

temporal proximity alone is insufficient to create a genuine issue of material fact as to the

definitive question of discrimination vel non.

7
  In its Motion for Summary Judgment, Defendant devotes substantial space to arguing
that most of the long list of protected activities that Plaintiff sets forth in his Opposition do not
actually qualify as protected activities and, if they do, were too temporarily distant from any of
the alleged adverse actions to allow for an inference of causation. See Def.’s Mot. at 5-15.
Although the Court recognizes that Plaintiff must establish that he engaged in a protected activity
to prevail on a retaliation claim, the Court need not address these arguments because even
assuming all of Plaintiff’s allegedly protected activities are in fact protected activities, the Court
finds that Plaintiff has failed to rebut Defendant’s legitimate, non-discriminatory reasons for
taking the adverse actions against Plaintiff and adduce sufficient evidence to create a material
dispute on the ultimate issue of retaliation or discrimination.  

  21
 Ultimately, it would appear that Plaintiff would have this Court conclude that his

reassignment, termination, and non-rehire were discriminatory and/or retaliatory based on his

prima facie case, without a proffer of additional evidence supporting an inference that Truland’s

reasons for these adverse employment actions were pretext for racial discrimination or

retaliation.8 As a result, and based on the totality of the admissible evidence before the Court, a

jury could not reasonably conclude that Plaintiff’s reassignment, termination, and non-rehire

constituted impermissible racial discrimination or retaliation under § 1981. Accordingly, the

Court shall grant Defendant’s Motion for Summary Judgment.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.

An appropriate Order accompanies this Memorandum Opinion.

____/s/________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge

8
Defendant argues in the alternative that Plaintiff cannot prevail on his claim of
retaliation because, by conceding Truland’s legitimate reasons for the challenged employment
actions, Plaintiff cannot establish “but-for” causation, which the Supreme Court held in
University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct 2517, 2533 (2013), is
required for a plaintiff to prevail in a retaliation claim. Nassar, however, addressed retaliation
claims brought under Title VII. The present case involves a § 1981 retaliation claim. While
courts in this Circuit have held that “the same standards apply in evaluating claims of
discrimination and retaliation under Title VII and § 1981,” Kidane v. NW. Airlines, Inc., 41
F.Supp.2d 12, 17 (D.D.C. 1999), the Supreme Court’s analysis in Nassar was based on the
specific language and structure of Title VII, as distinguished from other anti-discrimination and
retaliation laws, including § 1981. See Nassar, 133 S.Ct. at 2530. This Circuit has yet to address
the applicability of Nassar’s holding to § 1981 retaliation claims. This Court need not now
decide the applicability of Nassar’s analysis to a § 1981 retaliation claim because Plaintiff has
failed to adduce sufficient evidence to create a genuine dispute of material fact as to whether
Defendant retaliated against him under either a “but-for” or “motivating factor” causation
standard.

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