Jones v. Quintana

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALEXANDRIA JONES,

Plaintiff,
Civil Action No. 08-0620 (CKK)
v.

JANICE QUINTANA, et al.,

Defendants.

MEMORANDUM OPINION
(October 1, 2013)

Plaintiff Alexandria Jones, a former employee of the District of Columbia Office of

Unified Communications (“OUC”), filed suit against the District of Columbia and Janice

Quintana, the Director of the OUC, alleging that (1) the Defendants retaliated against the

Plaintiff in violation of the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-

615.51 et seq.; (2) Defendant Quintana retaliated against the Plaintiff for exercising her First

Amendment rights in violation of the 42 U.S.C. § 1983; and (3) the Defendants retaliated against

the Plaintiff in violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C.

§§ 12101 et seq. Presently before the Court is the Defendants’ [91] Motion for Summary

Judgment. Upon consideration of the pleadings,1 the relevant legal authorities, and the record as

a whole, the Court finds the Defendants are entitled to summary judgment on all remaining

claims. Accordingly, the Defendants’ motion is GRANTED.

1
Defs.’ Mot. for Summ. J., ECF No. [91]; Pl.’s Opp’n, ECF No. [95]; Defs.’ Reply, ECF
No. [100]; Pl.’s Notice, ECF No. [101].
 I. BACKGROUND

A. Factual Background

From 1999 until 2008, the Plaintiff was employed as a 911 operator with the Office of

Unified Communications (“OUC”). Defs.’ Stmt. ¶ 1.2 In 2007, Defendant Janice Quintana was

appointed by then-Mayor Adrian Fenty to serve as the Director of the OUC. Id. ¶ 2. The OUC

“provides centralized, District-wide coordination and management of public safety voice radio

technology and other public safety wireless communication systems and resources.” Id. ¶ 3.

Prior to 2007, the District of Columbia utilized “727-1000” as a telephone number for city

services. Id. ¶ 4. Mayor Anthony Williams, Mr. Fenty’s predecessor, proposed replacing the

727-1000 number with “311.” Id. Immediately after taking office in January 2007, Mayor Fenty

outlined a plan to establish 727-1000 as a 24-hour, 7-day per week “Mayor’s Call Number,”

within six months, and intended to roll-out the 311 number within one year. Id. ¶ 5.

Defendant Quintana testified before the City Council on March 8, 2007, and explained

that OUC was working towards operating the 727-1000 number 24 hours per day, and

“eventually merging the 7-digit telephone number to a 3-digit 311.” Defs.’ Stmt. ¶ 6. Ms.

Quintana further testified that in order to determine best practices, OUC officials visited “311”

and “911” call centers in Chicago and other major cities. Id. ¶ 7; Defs.’ Ex. 1 (Quintana Dep.)

27:6-28:9. She further indicated that OUC officials attended a number of meetings conducted by

2
As indicated in the September 21, 2012, Scheduling & Procedures Order, ECF No.
[89], the Court strictly adheres to the requirements of Local Civil Rule 7(h)(1). As the Court
previously advised the parties, the Court may assume facts identified by the Defendants in their
statement of material facts are admitted unless such facts are controverted in the Plaintiff's
responsive statement. Id. at ¶ 6(d). Thus, the Court shall cite to the Defendants Statement of
Undisputed Material Facts (“Defs.’ Stmt.”) unless a statement is contradicted with evidence, in
which case the Court may cite to the Plaintiff's Response (“Pl.'s Resp. Stmt.”) or directly to the
record, as appropriate.
2
community organizations in the District of Columbia to discuss the merger of the 727-1000 and

311 telephone numbers with citizens of the District. Defs.’ Stmt. ¶ 8.

Ms. Quintana testified before the City Council once again on March 16, 2007, at which

point Councilmember Phil Mendelson inquired as to why it made sense to combine the 727-1000

and 311 numbers. Defs.’ Stmt. ¶ 9. Ms. Quintana indicated that the new system would be

modeled after systems in several major cities, including Baltimore, Chicago, and New York,

would have a dedicated staff for each number, and would allow emergency operators to handle

only 911 calls. Id.3 During the hearing, Mr. Mendelson and Ms. Quintana discussed the

different purposes underlying the 727-1000, 311, and 911 numbers, and various models and

systems for handling emergency and non-emergency police calls. Id. ¶ 10.

On December 14, 2007, the Committee on Public Safety and the Judiciary conducted a

hearing regarding the OUC. The Plaintiff alleges that she and several of her co-workers sought

leave to attend the hearing, but their requests were denied. Jones Aff. ¶¶ 19-20. During the

hearing, Councilmember Yvette Alexander explained she had received complaints from her

constituents regarding confusion as to whether particular situations were considered emergencies

or non-emergencies. Defs.’ Stmt. ¶ 11. Councilmember Mendelson indicated that he had

received similar complaints of confusion. Id. ¶ 13. Ms. Quitana explained that the 727-1000

number would “collapse into 311” and utilized for non-emergencies, while 911 would be used

anytime the caller sought a police, fire, or ambulance response. Id. ¶ 12. The Plaintiff concedes

that the systems routes all calls seeking a police, fire, or ambulance response to the 911

operators, but the Plaintiff “disputes” Ms. Quintana’s testimony insofar as the Plaintiff would
3
The Plaintiff disputes the accuracy of Ms. Quintana’s statement that the District’s
system is modeled after the other cities, but does not dispute that Ms. Quintana testified as
indicated. Pl.’s Resp. Stmt. ¶ 9.

3
characterize some of the calls seeking a police response as “non-emergencies.” Pl.’s Resp. Stmt.

¶¶ 12, 13.

Following the December 14 oversight hearing, the Plaintiff sent an email to several City

Councilmembers asserting that Ms. Quintana “has no ideal [sic] how to run this agency,” and

“has no communications skills.” Defs.’ Ex. 2 (12/14/07 Email Pl. to V. Bonnett, J. Graham, D.

Catania). The Plaintiff also took issue with Ms. Quintana’s plan to require 911 operators to work

10 hour shifts, and asserted that the employees of OUC felt it was a “big mistake” to combine

311 with 727-1000. Id. Specifically, the Plaintiff argued that “a lot of citizens of the District of

Columbia call 311 with emergency situations and [the merger with 727-1000] would delay

service if the call has to be transferred to 911.” Id. The Plaintiff further suggested that “it will

take a long time to get the citizens used to calling 311 for trash service[,] etc.” Id. The Plaintiff

subsequently forwarded the email to City Council Chairman Vincent Gray and Councilmember

Yvette Alexander. Defs.’ Ex. 3 (12/17/07 Email Pl. to V. Gray, Y. Alexander). Councilmember

Jim Graham forwarded the Plaintiff’s email to Councilmember Mendelson. Defs.’ Ex. 4

(12/18/07 Email).

The Plaintiff testified during her deposition that she had previously expressed concerns

regarding the 311 merger to Ms. Quintana during a labor-management partnership meeting in

October 2007. Defs.’ Ex. 5 (Jones Dep.) 55:8-56:1. The Plaintiff indicated to Ms. Quintana that

the merger was problematic because the OUC was understaffed, and the staff had no way of

prioritizing emergency calls within the 911 system. Id. After Ms. Quintana dismissed the

Plaintiff’s concerns, the Plaintiff reportedly told Ms. Quintana that the Plaintiff “would contact

the City Council, the Mayor and anyone outside of the District government who would listen to

[her].” Jones Aff. ¶ 8.

4
 On December 28, 2007, the Plaintiff emailed Mayor Fenty, asserting that the

communications center had become “a cluttered warehouse environment,” and alleging that the

privacy of District citizens could be jeopardized by housing other agencies near the 911

operators. Defs.’ Ex. 6 (12/28/07 Email Pl. to V. Gray, V. Bonett). The Plaintiff blamed the

Mayor for these issues, stating “I can’t understand [sic] my Mayor Adrien Fenty has allowed

the 911 center to become an unsecured open facility that can and will jeopardize the citizens [sic]

confidentiality with emergency calls for service.” Id. (emphasis in original). The Plaintiff

alleged that once the 727-1000 and 311 numbers merged, operators from the 727-1000 line

would be forced to take 311 calls “without the benefit of training,” which would “be a huge

negative impact for the citizens with a delay in service, based on the facts [sic] that 727-1000

employees will have to transfer these calls back to the 911 operators.” Id. The Plaintiff

requested a meeting with Mayor Fenty to discuss the issues further. Id. Four days later the

Plaintiff sent an email to Mayor Fenty’s scheduling assistant “to get his availability to speak with

him.” Defs.’ Ex. 7 (1/1/08 Email Pl. to “Scheduler”).

Mayor Fenty visited the OUC on January 7, 2008. The Plaintiff alleges that when she

approached the Mayor, indicating that she had been trying to arrange a meeting with him, Mayor

Fenty yelled at the Plaintiff, asking “what for?” Jones Dep. 65:21-66:6. The Plaintiff did not

give the Mayor her name, and is not sure whether Mayor Fenty knew who she was at that time.

Id. at 66:7-14; 68:3-8. The Plaintiff purportedly responded by asking the Mayor why he was

yelling, and the Mayor responded with “what for?” Id. at 70:21-22. The Plaintiff asked “Sir,

why are you yelling at me? That’s why I don’t want to discuss it on the operation floor,” to

which the Mayor asked “[w]ell what is it?” Id. at 73:5-7, 75:5-8. The Plaintiff explained that

“it’s about the Director and what’s going on at the agency.” Id. at 75:8-10. The Plaintiff alleges

5
the Mayor replied in a loud voice that “She’s the Director. She can do whatever she wants to do.

If you have a problem with the Director, you talk to her about it,” then looked at the Plaintiff and

said “you keep up the hard work” and walked away. Id. at 75:8-17. Ms. Quintana testified

during her deposition that approximately 20 minutes after he left, the Mayor contacted Ms.

Quintana to discuss the incident and instructed Ms. Quintana to fire the Plaintiff for

insubordination. Quintana Dep. 117:17-119:1. In lieu of termination, Ms. Quintana placed the

Plaintiff on administrative leave on January 10, 2008, informing the Plaintiff that the Mayor with

displeased by the Plaintiff’s disrespectful behavior. Defs.’ Stmt. ¶ 21.

The day after she was placed on administrative leave, the Plaintiff gave a televised

interview with a local news station “to let the public know what was going on at the OUC.”

Defs. Stmt. ¶ 22. The parties disagree as to whether other employees appeared on television to

discuss their concerns regarding the proposed agency changes, and whether it was common

practice for OUC employees to be interviewed about changes at the agency. Pl.’s Resp. Stmt.

¶¶ 23, 24. Regardless, Ms. Quintana testified that she had no reaction to the Plaintiff’s interview,

and did not take criticisms of the 311 merger personally because the Mayor wanted to merge the

systems. Quintana Dep. 98:20-99:10; 104: 9-20; but see Jones Aff. ¶ 42 (alleging Ms. Quintana

reacted “in a negative way” whenever the Plaintiff disagreed with Ms. Quintana). Ms. Quintana

testified that as of January 18, she was not aware of the Plaintiff’s prior contact with the Mayor

and Councilmembers regarding OUC, and did not learn that the Plaintiff had contacted

Councilmembers until the Plaintiff testified at an oversight hearing on January 24, 2008.

Quintana Dep. 97:7-98:19.

On January 18, 2008, Ms. Quintana served the Plaintiff with a proposed 30-day

suspension without pay on the grounds the Plaintiff “displayed unprofessional, rude and

6
disrespectful conduct” towards the Mayor. Defs.’ Ex. 8 (1/18/08 Advanced Written Notice of

Proposed Suspension of 10 Days or More) at 1. The notice indicated that the Plaintiff had

previously been reprimanded for “[d]iscourteous treatment of the public.” Id. at 2. The Plaintiff

appealed the proposed suspension, and the suspension was ultimately not sustained and

dismissed without prejudice. Defs.’ Stmt. ¶ 34.

The Plaintiff testified before the City Council regarding her concerns with the proposed

311 merger during a hearing on January 24, 2008. Defs.’ Stmt. 28. The Plaintiff testified that

she was “very concerned” that the new system would cause a “serious incident,” but if the

former 727-1000 operators were trained and certified, the new system “may work.” Id. ¶ 29.

The Plaintiff also indicated she believed the proposed suspension was retaliatory, the 911 system

was understaffed, and the new call system led to backlogs of 911 calls. Id. ¶ 28. Several other

individuals testified to their opposition to the new system during the hearing, including Tiffany

Hopper (an OUC employee), and Michael Patterson, the national vice president of the National

Association of Government Employees. Id. ¶ 30. The Plaintiff admits that these individuals

testified regarding

concerns for public safety (Loftus testimony), proper training for call takers
(Patterson and Hopper testimony), background checks for employees (Hopper
testimony), OUC giving the appearance of being fully staffed when it was not
(Hopper testimony), potential delays in answering emergency calls (Hopper and
Loftus testimony), and emergency calls building up in the queue (Hopper
testimony).

Defs.’ Stmt. ¶ 31; see also id. ¶¶ 32-33 (describing other discussions during the hearing).

In early 2008, the operators at the OUC began working 10-hour shifts rather than 8-hour

shifts, in part because a majority of the operators preferred the longer shift length. Defs.’ Stmt.

¶ 35. On April 2, 2008, the Plaintiff submitted to her employer a letter from her treating

therapist, Sonja Watts-Means, asking that the Plaintiff be provided an accommodation under the
7
ADA. Defs.’ Ex. 9. The letter did not specify the medical condition or the scope of the

accommodation, except to say that the Plaintiff “has a series of symptoms and relevant treatment

interventions that are sometimes debilitating and impacts [sic] her general sense of wellness,”

therefore she “should not be subjected to undue stress or intense working conditions.” Id. The

OUC informed the Plaintiff that in order to provide the Plaintiff with a reasonable

accommodation, the Plaintiff would have to submit additional information from her medical

professional, including “diagnosis, the associated functional limitations; the duration of the

limitations, the accommodation being recommended and/or that [Plaintiff] is requesting.” Defs.’

Ex. 10 (4/10/08 Ltr. A. Bonner-Evans to Pl.) at 1. OUC indicated that while the Plaintiff’s

request was in review status, she would remain on her regularly scheduled 10-hour shifts, though

the Plaintiff would be permitted to take two hours of leave each shift. Id. The Plaintiff was

advised that “if the business needs of the operations floor change, your request [for leave] may

be denied and you will be expected to work the full 10-hour schedule. Should you not work the

assigned schedule you may be charged AWOL and disciplinary action may be considered.” Id.

One week later, Dr. Arnulfo Bonavente, provided OUC with a letter stating that the

Plaintiff “is under my care for a medical problem that necessitates treatment with prescription

medication,” and asked OUC to “allow her to work only eight hours a day while she is

recovering from her medical condition.” Defs.’ Ex. 11 (4/15/08 Ltr.). The Plaintiff’s therapist

submitted a separate request for a reasonable accommodation on April 24, 2008, indicating that

the Plaintiff had been diagnosed with a general anxiety disorder. Defs.’ Ex. 12 (4/24/08

Employee Request for Reasonable Accommodation under the ADA). Dr. Watts-Means

described the Plaintiff’s symptoms as including poor concentration and focus, anxiousness,

fatigue, distractability, and headaches. Id. at 1. The request asked that the Plaintiff be relocated

8
to an office with the fewest distractions and undue demands and that she be permitted to work

only eight hours per day. Id.

Between April 24 and May 15, the Plaintiff had a number of meetings with an

administrative officer for the OUC regarding the Plaintiff’s request for an accommodation. See

Defs.’ Ex. 13 (5/15/08 Ltr. A. Bonner-Evans to Pl.) at 1. On May 15, OUC notified the Plaintiff

that it had received all of the necessary medical documentation, but for an estimate of the

duration of the Plaintiff’s functional limitations. Id. The OUC explained that as a 911 operator,

it is essential for the Plaintiff to answer calls, and the emergency calls the OUC receives “require

that [Plaintiff] be able to concentrate, provide quick response service and expeditiously route

calls for police, fire and EMS, and other public safety. Id. Since OUC did not have 8-hour shifts

on the emergency operations side, OUC proposed allowing the Plaintiff ten to fifteen minute

breaks (if needed) every sixty to ninety minutes during her 10-hour shift, in addition to two

fifteen minute breaks and a thirty minute lunch break. Id. at 2. It appears that during the May 12

meeting, the Plaintiff rejected the proposed accommodation involving multiple breaks in lieu of a

shortened shift. Id. As a result, OUC thus offered two additional proposed accommodations: (1)

detailing the Plaintiff to a vacant customer service representative position on the non-emergency

side, which included an 8-hour shift; or (2) holding the Plaintiff’s position as an operator and

allowing the Plaintiff to use accrued leave and leave without pay for up to the maximum amount

of time permitted by District of Columbia personnel regulations. Id.

The May 15 letter from OUC indicated the Plaintiff could continue to use annual or sick

leave while the parties finalized the details of the Plaintiff’s accommodation request. Defs.’ Ex.

13 at 2. The Plaintiff, through her union representative, objected to OUC requiring the Plaintiff

to use her accrued leave to work shortened shifts. Defs.’ Ex. 15 (5/23/08 Ltr. M. Patterson to A.

9
Bonner-Evans). The Plaintiff subsequently rejected the proposals set forth in the OUC’s May 15

letter, noting that another 911 operator was permitted to work 8-hour shifts to accommodate

medication taken for a seizure disorder, and the customer service representative position was on

a lower pay scale and scheduled for a peak shift. Defs.’ Ex. 16 (5/26/08 Ltr. Pl. to A. Bonner-

Evans). Several days later, Dr. Bonavente submitted a follow-up letter to the OUC stating the

Plaintiff’s improvement “ha[s] been delayed because of her continued stress,” and reiterated his

recommendation that the Plaintiff be permitted to work only eight hours per day. Defs.’ Ex. 17

(5/29/08 Ltr.).

The OUC advised the Plaintiff on June 5, 2008, that she did not have sufficient leave to

cover her request for two hours of leave in connection with her shift on June 6, 2008, and that

she would be expected to report to work on June 6 as scheduled. Defs.’ Ex. 18 (6/5/08 Denied

Leave Request). The Plaintiff failed to report to work on June 6 and was issued a letter of

warning by Assistant Watch Commander Bennie Coates, advising the Plaintiff that although her

overall performance is generally satisfactory, her failure to appear for a scheduled shift was

“unacceptable” and her demeanor was affecting her “overall productivity and performance.”

Defs.’ Ex. 19 (6/13/08 Ltr. of Warning) at 1. Mr. Coates indicated that “it may be necessary to

take further disciplinary action up to and including dismissal, unless these problems are

corrected.” Id. at 2.

On June 30, 2008, OUC responded to the Plaintiff’s May 26 letter regarding the Office’s

proposed accommodations, discussing the details of the customer service representative position.

Defs.’ Ex. 20 (6/30/08 Ltr. A. Bonner-Evans to Pl.) at 1. The OUC further indicated that after

reviewing the medical documentation submitted by the Plaintiff, “the OUC cannot make a

determination as to whether you have a disability as defined by the ADA,” and asked the

10
Plaintiff to provide additional medical information regarding specified topics. Id. at 2.

Nevertheless, the OUC decided to provide the Plaintiff with a temporary workplace modification

in the form of a temporary detail to the customer service representative position in the non-

emergency operations side. The parties held a meeting on July 21, 2008, to further discuss the

Plaintiff’s accommodation request. Defs.’ Stmt. ¶ 49. The Plaintiff refused the transfer to the

non-emergency position, leading OUC to transfer the Plaintiff back to her original 10-hour shift,

and advised the Plaintiff that if she did not work her full 10-hour shift, she would be terminated.

Defs.’ Ex. 21 (7/24/08 Ltr. A. Bonner-Evans to Pl.). As of July 24, 2008, the Plaintiff had not

submitted the additional medical documentation requested by OUC on June 30. Id.

The Plaintiff completed informal EEO counseling on July 22, and received a notice of her

right to file a discrimination complaint with the District of Columbia Office of Human Rights.

Defs.’ Stmt. ¶ 50; Defs.’ Ex. 22 (7/22/08 Notice of Right to File). Despite prior warnings from

OUC, the Plaintiff continued to work only eight hours of her ten-hour shifts, and was charged

with being absent without official leave for two hours each shift. Defs.’ Stmt. ¶ 51. The Plaintiff

filed a formal charge of discrimination with the Office of Human Rights on August 7, 2008,

alleging she had been subjected to a hostile work environment and disparate treatment because of

her disability, and was threatened with termination in retaliation for engaging in informal EEO

counseling. Defs.’ Ex. 24 (Charge of Discrimination) at 2-3.

The OUC later served the Plaintiff with a 15-day advanced notice of proposed

termination for insubordination and being absent without official leave. Defs.’ Stmt. ¶ 53; Defs.’

Ex. 25 (8/14/08 Advance Written Notice of Proposed Removal). The Plaintiff, through her

union representative, provided a response to the notice to a hearing officer, alleging the failure to

accommodate the Plaintiff was retaliation in light of the Plaintiff’s July 2008 meeting with an

11
EEO counselor. Defs.’ Stmt. ¶ 54; Defs.’ Ex. 26 (8/22/08 Employee Response to Proposed

Action) at 2. The Hearing Officer recommended that the Plaintiff’s proposed termination be

sustained, and OUC terminated the Plaintiff effective September 26, 2008. Defs.’ Ex. 27 (Report

of Hearing Officer); Defs.’ Ex. 28 (Notice of Final Decision Proposed Removal).

B. Procedural History

The Plaintiff filed the present action on April 10, 2008, alleging violations of the D.C.

Whistleblower Protection Act, retaliation in violation of the D.C. Workers’ compensation statute,

and deprivation of the Plaintiff’s First Amendment Rights. See generally Compl., ECF No. [1].

The Plaintiff filed an amended complaint on January 2, 2009, adding additional factual

allegations and two new claims: (1) that the Defendants failed to provide the Plaintiff with a

reasonable accommodation in violation of the ADA; and (2) the Defendants wrongfully

terminated the Plaintiff in retaliation for filing a complaint regarding the Defendants’ purported

violation of the ADA. See generally Am. Compl., ECF No. [19]. The Court granted in part and

denied in part the Defendants’ subsequent motion to dismiss, leaving only the Plaintiff’s claim

under the Whistleblower Protection Act, the First Amendment claim as to Defendant Quintana

only, and the Plaintiff’s ADA retaliation claim. Jones v. Quintana, 658 F. Supp. 2d 183 (D.D.C.

2009).

Consistent with the Court’s September 30, 2009, Memorandum Opinion, the Plaintiff

moved to amend her First Amendment claim, but omitted the remaining claims from the

proposed second amended complaint. Pl.’s Mot. to Am., ECF No. [32]. It appeared from the

Plaintiff’s motion that she was abandoning her remaining claims, but to avoid any ambiguity, the

Court ordered the Plaintiff to re-file a second amended complaint including “all facts and

remaining legal claims at issue.” 10/5/09 Minute Order. The Plaintiff did not submit a revised

12
second amended complaint. Thus, the Court assumed the Plaintiff was proceeding only with her

First Amendment claim, and later granted as conceded the Defendants’ motion to dismiss the

First Amendment claim. 10/23/09 Minute Order; 10/26/09 Mem. Op. & Order, ECF Nos. [36,

37].

The Plaintiff filed a notice of appeal of the Court’s decision granting the Defendants’

motion to dismiss as conceded. Notice of Appeal, ECF No. [39]. The United States Court of

Appeals for the District of Columbia Circuit held the appeal in abeyance to allow the Plaintiff to

seek reconsideration of the Court’s order. 4/20/10 Order, ECF No. [41]. After the parties

briefed the Plaintiff’s motion to reconsider, the Court indicated that it would grant the motion if

the D.C. Circuit remanded the matter. 3/27/11 Mem. Op. & Order, ECF No. [49]. The D.C.

Circuit subsequently dismissed the appeal and remanded the case to this Court, at which point

the Court instructed the Plaintiff to file a Third Amended Complaint. 5/8/11 Am Order, ECF

No. [52]; see generally Third Am. Compl., ECF No. [57]. The Third Amended Complaint

asserts three separate claims. Count I alleges that Defendant Quintana’s decision placing the

Plaintiff on administrative leave, proposing a suspension, and the Defendants’ termination of the

Plaintiff constituted retaliation against the Plaintiff for protected disclosures under the

Whistleblower Protection Act, namely, the Plaintiff’s December 2007 and January 2008 emails

to the Mayor and members of the City Council. Id. ¶¶ 45-49.4 Count III contends that Ms.

Quintana placed the Plaintiff on administrative leave, proposed suspending her, and later

terminated the Plaintiff in retaliation for the Plaintiff speaking to the City Council and the media

4
Each of the Counts set forth in the Third Amended Complaint also allege the Plaintiff’s
suspension was retaliatory, but as the undisputed record indicates, the proposed suspension was
dismissed on appeal, and there is no evidence the Plaintiff ever served any portion of the
suspension. Defs.’ Stmt. ¶ 34.
13
regarding the Plaintiff’s concerns with respect to the 311 merger. Id. ¶¶ 50-54. Count V alleges

that the Defendants terminated the Plaintiff in retaliation for engaging in informal EEO

counseling in July 2008 regarding the Defendants’ alleged failure to grant the Plaintiff an

accommodation, in violation of the ADA. Id. ¶¶ 55-58. Following the close of discovery, the

Defendants filed the present motion for summary judgment, which is now ripe for consideration

by the Court.

II. LEGAL STANDARD

“The court shall grant summary judgment 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).

A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:

(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials); or

(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When

considering a motion for summary judgment, the court may not make credibility determinations

or weigh the evidence; the evidence must be analyzed in the light most favorable to the

nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
14
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,

571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).

The moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a

factual dispute, by itself, is insufficient to bar summary judgment. See Liberty Lobby, 477 U.S.

at 248. “Only disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Id. For a dispute about a material

fact to be “genuine,” there must be sufficient admissible evidence that a reasonable trier of fact

could find for the nonmoving party. Id. The adverse party must “do more than simply show that

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

Radio Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis

in the record cannot create a genuine dispute. See Ass’n of Flight Attendants–CWA v. U.S. Dep’t

of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

III. DISCUSSION

A. Whistleblower Protection Act Claim

The District of Columbia Whistleblower Protection Act prohibits any “supervisor” from

threatening to take or taking a prohibited personnel action or otherwise retaliating against an

employee because of the employee's “protected disclosure.” D.C. Code § 1–615.53. A

“protected disclosure” is defined as:

any disclosure of information, not specifically prohibited by statute, by an
employee to a supervisor or a public body that the employee reasonably believes
evidences:

(A) Gross mismanagement;

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

15
 (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 of a term of a contract between the District government and a
District government contractor which is not of a merely technical
or minimal nature; or

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

Id. § 1–615.52(a)(6). “A ‘protected disclosure’ under the [statute] is one that the employee

‘reasonably believes' evidences one or more of the circumstances delineated in D.C. Code § 1–

615.52(a)(6)(A)–(E) (2001).” The “‘employee must disclose such serious errors by the agency

that a conclusion the agency erred is not debatable among reasonable people.’” Wilburn v.

District of Columbia, 957 A.2d 921, 925 (D.C. 2008) (quoting White v. Dep’t of the Air Force,

391 F.3d 1377, 1382 (Fed. Cir. 2004)). The Plaintiff alleges that her December 14 and 17, 2007

emails to members of the City Council, her December 28, 2007, and January 1, 2008, emails to

Mayor Fenty, and her January 7, 2008, conversation with Mayor Fenty constituted “protected

disclosures” for purposes of the Whistleblower Protection Act. Third Am. Compl. ¶¶ 45-48.

The Plaintiff thus argues that the decision to place the Plaintiff on administrative leave,

proposing that the Plaintiff be suspended, and ultimately terminating the Plaintiff constituted

retaliatory personnel actions. Id. ¶ 49.

The Defendants move for summary judgment regarding the Plaintiff’s Whistleblower

Protection Act claim on a number of grounds, including that the Plaintiff’s Whistleblower

Protection Act claim fails because the Plaintiff’s disclosures simply contributed to the ongoing

public debate. In Williams v. District of Columbia, 9 A.3d 484 (D.C. 2010), the D.C. Court of

Appeals confirmed what it had previously implied: a disclosure is not protected if the facts

alleged are “public knowledge” and there has been “vocalized public concern about the very
16
information that [plaintiff] conveyed,” although the court stopped short of limiting protected

disclosures to “instances in which no one in the general public is aware of the abuse.” Id. at 489.

The Defendants allege that the Plaintiff’s statements did not constitute protected disclosures

because the Plaintiff was simply “giving her opinion on a policy issue that was being debated by

the government and the public,” and that Defendant Quintana had identified the same issues

discussed by the Plaintiff during Quintana’s earlier discussions with the City Council regarding

the proposal during public hearings---several of which pre-date the Plaintiff’s first protected

disclosure by nearly nine months. Defs.’ Mot. at 44-45; see supra, Section I.A., at 3.

The Plaintiff does not dispute this contention, except to say that “[t]his Court, in its

September 30, 2009 Memorandum, held that the statements by Plaintiff were protected

disclosures pursuant to the WPA.” Pl.’s Opp’n at 29. The Plaintiff’s argument refers to the

Court’s decision regarding the Defendants’ motion to dismiss the Amended Complaint. See

generally Jones, 658 F. Supp. 2d 183. The Defendants moved to dismiss the Plaintiff’s

Whistleblower Protection Act claim on three grounds. First, the Defendants argue the Plaintiff

could not pursue a claim against Defendant Quintana in her individual capacity under the

Whistleblower Protection Act. Id. at 198. The Court agreed with several prior decisions in this

District finding the Act does not create a private right of action against individual defendants. Id.

Second, the Defendants argued the Plaintiff’s disclosures were not protected under the Act

insofar as they did not evidence “gross mismanagement,” “abuse of authority,” or any of the

other circumstances set forth in D.C. Code § 1–615.52(a)(6)(A)–(E). Id. at 199. The Court

found that allegations in the Amended Complaint were “sufficient to suggest that she reasonably

believe[d] her emails evidenced [a] substantial and specific danger to the public health and

safety,” and thus sufficiently alleged “protected disclosures” for purposes of a motion to dismiss.

17
Id. at 199-200. Third, the Defendants suggested the Amended Complaint failed to sufficiently

allege that the Plaintiff’s protected disclosure were a contributing factor in the prohibited

personnel actions allegedly taken against the Plaintiff. Id. at 200. Noting that the Whistleblower

Protection Act broadly defines “contributing factor” to mean “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 Court found that in the context of a motion to dismiss, it reasonably could

be inferred from the short timeframe between the Plaintiff’s protected activity in December 2007

and the personnel action that the Plaintiff’s protected disclosures were a contributing factor in the

Defendants’ decision to place the Plaintiff on administrative leave on January 10, 2008. Id. The

Defendants did not argue, and thus the Court did not address, the issue presented here: whether

the Plaintiff’s statements merely addressed an issue already the subject of a public discussion.

The Plaintiff offers no response to the Defendants’ argument that the Plaintiff simply provided

her opinion regarding facts previously revealed as part of the public discourse on the issue.

Therefore, the Defendants are also entitled to summary judgment on the Plaintiff’s

Whistleblower Protection Act claim.

B. First Amendment Retaliation Claim

It is true that individuals do not “relinquish the First Amendment rights they
would otherwise enjoy as citizens” when they accept employment with the
government. . . . However, “the State has interests as an employer in regulating
the speech of its employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.”

Navab–Safavi v. Glassman, 637 F.3d 311, 315 (D.C. Cir. 2011). “To balance these competing

interests in First Amendment retaliation claims by government employees,” the Court applies a

four-factor test to determine whether an employer retaliated against an employee for the

employee’s exercise of her First Amendment rights:

18
 First, the public employee must have spoken as a citizen on a matter of public
concern. Second, the court must consider whether the governmental interest in
promoting the efficiency of the public services it performs through its employees
outweighs the employee’s interest, as a citizen, in commenting upon matters of
public concern. Third, the employee must show that [his] speech was a
substantial or motivating factor in prompting the retaliatory or punitive act.
Finally, the employee must refute the government employer’s showing, if made,
that it would have reached the same decision in the absence of the protected
speech.

Bowie v. Maddox, 642 F.3d 1122, 1133 (citation omitted). The Plaintiff alleges in Count III of

the Third Amended Complaint that she spoke as a citizen on a matter of public concern by

“voic[ing] her concerns about [sic] safety of D.C. residents to the city council and speak[ing]

with the media,” and that her speech was a motivating factor in the Defendants’ decisions to

place the Plaintiff on administrative leave, propose a 30-day suspension, and finally terminate

the Plaintiff. Third Am. Compl. ¶ 51. The Defendants move for summary judgment on the

Plaintiff’s First Amendment claim, arguing, among other things, that the Plaintiff failed to

proffer any evidence to suggest that her protected speech was a motivating factor in any of the

allegedly retaliatory acts. The Court agrees that the Plaintiff failed to proffer sufficient evidence

from which a reasonable jury could conclude that the Plaintiff’s protected speech was a

motivating factor in prompting the Defendants’ allegedly retaliatory conduct.

As a threshold matter, the Court notes that for the first time in her opposition brief, the

Plaintiff alleges she also engaged in protected speech during the October 2007 labor-

management meeting. Pl.’s Opp’n at 17. This allegation is nowhere to be found in the Third

Amended Complaint, nor could one reasonably infer from the reference to speech before the City

Council and the media that the Plaintiff’s claim encompassed a meeting months prior involving

neither the City Council nor the media. The Plaintiff cannot amend her complaint to

significantly alter the scope of her First Amendment retaliation claim by way of her opposition to

19
the Defendants’ dispositive motion. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal

Service, 297 F.Supp.2d 165, 170 (D.D.C. 2003) (“It is axiomatic that the Plaintiff cannot amend

her Complaint by the briefs in support of or in opposition to a motion for summary judgment.”).

For the same reason, the Plaintiff cannot use her opposition to allege new retaliatory conduct by

the Defendants. See Pls.’ Opp’n at 21 (alleging that Defendant Quintana’s knowledge of the

Plaintiff’s protected speech “predated the other adverse actions against Ms. Jones, from the

denial of a number for her to submit a worker’s compensation claim . . . , to the rejection of her

request for a reasonable accommodation under the ADA to the imposition of AWOL [] status”).

Therefore, in analyzing the Plaintiff’s First Amendment retaliation claim, the Court considers

only the protected speech identified in Plaintiff’s opposition as protected speech and alleged in

the Third Amended Complaint, specifically: (1) the Plaintiff’s December 14 and 17, 2007, emails

to members of the City Council, Pl.’s Opp’n at 15; (2) the Plaintiff’s December 28, 2007, email

to Mayor Fenty, id. at 15; and (3) the Plaintiff’s January 11, 2008, interview with a local news

station, id. at 16.

The Defendants contend that the Plaintiff fails to raise a genuine issue of fact with respect

to causation in large part because Ms. Quintana was not aware of the Plaintiff’s protected activity

until late January 2008. The Plaintiff suggests Ms. Quintana was aware of the Plaintiff’s

protected activity for five reasons. The Court addresses each issue seriatim. First, the Plaintiff

argues Ms. Quintana was aware of the Plaintiff’s protected activity in December 2007 and

January 2008 because several months prior, in October 2007, the Plaintiff told Ms. Quintana that

the Plaintiff intended to contact the City Council. By her own admission the Plaintiff did not

contact any member of the City Council for at least six weeks, and the Plaintiff does not allege

that she ever informed Ms. Quintana that the she (the Plaintiff) actually contacted members of

20
the City Council.

Second, the Plaintiff alleges Ms. Quintana denied the Plaintiff and several of her co-

workers leave to attend an oversight hearing before the City Council. The Plaintiff alleges that

“[i]n December 2007, following [her] contacts with several City [C]ouncil members” she sought

leave to attend the hearing, but “was told that Ms. Quintana personally denied [her] leave so that

[she] could not testify at the Council [h]earing.” Jones Aff. ¶ 19; Pl.’s Opp’n at 23 (indicating

the request for leave was made “little more than three weeks” before January 10, 2008).

Initially, it is unclear when this exchange might have taken place because the only City Council

hearings in this timeframe discussed by the parties are (1) the December 14, 2007, hearing,

which the Plaintiff attended and which preceded the Plaintiff’s protected activity; and (2) the

January 28, 2008, hearing at which the Plaintiff testified. Regardless, this argument is misplaced

for the same reason as the Plaintiff’s October 2007 statement: setting aside the fact this statement

is hearsay,5 at most it establishes that Ms. Quintana knew the Plaintiff may have wanted to speak

to the City Council about the 311 merger, but does not suggest that Ms. Quintana new the

Plaintiff had already contacted several City Councilmembers before seeking leave to attend the

oversight hearing.

Third, the Plaintiff alleges, without further elaboration, that she has learned that City

Councilmember Mendelson and Mayor Fenty had a policy of forwarding complaints to the

agencies at issue in the complaints. The Plaintiff offers no documentation or other evidence to

support her assertion that she learned (from an unknown source) that Mayor Fenty and

Councilmember Mendelson had a policy of forwarding complaints to relevant District agencies,

5
The Plaintiff does not even attempt to argue in her opposition that any of the hearsay
statements in her declaration could be presented in a form admissible at trial. See Wilburn v.
Robinson, 480 F.3d 1140, 1142-42 (D.C. Cir. 2007).
21
nor does the Plaintiff offer any evidence that either Mayor Fenty or Councilmember Mendelson

forwarded any of the Plaintiff’s emails to Defendant Quintana. To the contrary, Ms. Quintana

testified that she did not receive any emails nor was otherwise informed by the City Council of

the Plaintiff’s concerns. Quintana Dep. 97:7-12; 98:6-15. Not only is the Plaintiff’s assertion

hearsay, without any information as where the Plaintiff learned of the alleged policies, the Court

cannot determine how many levels of hearsay might be involved.

Fourth, the Plaintiff alleges that during the phone call between Mayor Fenty and Ms.

Quintana following the January 7 incident, Mayor Fenty must have mentioned the Plaintiff’s

prior correspondence with the Mayor. This allegation is pure speculation. Plaintiff’s counsel

questioned Ms. Quintana regarding her conversation with the Mayor, and relevant exchange

from Ms. Quintana’s deposition is set forth below:

Q: And what do you recall about -- I mean if you could recount for me
as much of that conversation as you can.

A: He just said what's the young lady's name I was talking to, I want
you to terminate her because I think that was insubordinate, and
that was that.

Q: Did you ask him what he thought was insubordinate?

A: No.

Q: Did you see anything that you thought was insubordinate?

A: Yes.

Q: What was that?

A: I think Ms. Jones’ behavior, yelling at him and taking her headset
off while she was still logged on to take 911 calls.

Q: So her behavior? And how about the mayor?

A: I think he was angry about it, I mean obviously, yes.

Quintana Dep. 118:17-119:15. Nothing in the record suggests Mayor Fenty ever stated to Ms.
22
Quintana that the Plaintiff had previously contacted him, nor is there anything to suggest Mayor

Fenty and Ms. Quintana had any discussion regarding the contents of the Plaintiff’s emails to the

Mayor.

The Plaintiff’s fifth argument is similarly speculative. The Plaintiff indicates that she

contacted a local television news station on January 7, to discuss the 311 merger. Jones Aff.

¶ 35. At some point between January 7 and January 11, the Plaintiff was interviewed by a

reporter at the station. Id. ¶¶ 36-38. The Plaintiff asserts that the reporter told her that the facts

she told the reporter would need to be verified. Id. ¶ 43. The Plaintiff was placed on

administrative leave on January 10---her first day back to work after the incident involving

Mayor Fenty---and the interview aired on January 11. The Plaintiff offers no evidence, apart

from her own speculation, to suggest that the reporter contacted Ms. Quintana, much less that he

informed Ms. Quintana that the Plaintiff had expressed her concerns regarding the 311 merger to

the reporter.

To be fair, causation is often a question for the jury. Hall v. Ford, 856 F.2d 255, 258

(D.C. Cir. 1988) (citations omitted). Nevertheless, to avoid summary judgment the Plaintiff

must show that there is “evidence (either of a direct or indirect nature) from which a reasonable

jury could find the required causal link between the protected disclosures . . . and the allegedly

retaliatory actions.” Williams v. Johnson, 701 F.Supp.2d 1, 17 (D.D.C. 2010). As the non-

moving party the Plaintiff must demonstrate more than “the mere existence of a scintilla of

evidence” in support of her position. Liberty Lobby, 477 U.S. at 252. Thus, the Court considers

the (albeit speculative) evidence the Plaintiff offers to show when Ms. Quintana became aware

of the Plaintiff’s protected speech in combination with the other evidence the Plaintiff proffers to

show her protected speech was a motivating factor in the three specified personnel actions. The

23
Court examines each of the personnel actions in turn.

With respect to Ms. Quintana’s January 10, 2008, decision to place the Plaintiff on

administrative leave, as noted above the Plaintiff offers nothing but speculation and

unsubstantiated hearsay to establish Ms. Quintana was aware of the Plaintiff’s protected speech

as of that date. Moreover, Ms. Quintana testified that the decision to place the Plaintiff on

administrative leave was made in response to Mayor Fenty’s request that Ms. Quintana terminate

the Plaintiff. Quintana Dep. 118:2-119:4; 125:14-126:18. The Plaintiff suggests Ms. Quintana’s

decision was questionable because Ms. Quintana based the decision “on her asserted

conversation where she was told in one sentence that Ms. Jones was insubordinate when there is

not a scintilla of evidence of any insubordinate behavior.” Pl.’s Opp’n at 24. The Plaintiff fails

to articulate why Ms. Quintana should have sought additional information from the Mayor when

Ms. Quintana personally witnessed the incident in question. Quintana Dep. 119:2-21. No

reasonable jury could conclude from this record that the decision to place the Plaintiff on paid

administrative leave on January 10 was in retaliation for the Plaintiff’s protected speech.

Turning to Ms. Quintana’s January 18 decision to suspend the Plaintiff without pay for

insubordination (referring to the January 7 incident), the Plaintiff emphasizes the short time

frame between the airing of her television interview (January 11) and the issuance of the notice

of proposed suspension (January 18). The Defendant argues suspension was a result of the

January 7 incident involving Mayor Fenty. The record indicates that on January 10, Ms.

Quintana placed the Plaintiff on administrative leave due in light of the Mayor’s request that she

be terminated for insubordination, but was not sure if the Plaintiff’s actions “necessarily

warranted termination.” Quintana Dep. 125:17-126:7. In a similar context, the Supreme Court

has held that “[e]mployers need not suspend previously planned [personnel actions] upon

24
discovering that a Title VII suit has been filed, and their proceeding along lines previously

contemplated, though not yet definitively determined, is no evidence whatever of causality.”

Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 272 (2001). In Breeden, the employer

announced that she was contemplating transferring the plaintiff, but did not transfer the plaintiff

until after the employer learned the plaintiff had filed a discrimination law suit. Id. The Court

ruled that the fact the employer became aware of the plaintiff’s lawsuit one month before the

transfer “is immaterial in light of the fact that [the employer] concededly was contemplating the

transfer before it learned of the suit.” Id. Here, the undisputed evidence indicates Ms. Quintana

was contemplating disciplining the Plaintiff by way of termination as of January 10. Under

Breeden, the fact that Ms. Quintana watched the Plaintiff’s interview with a local news station

before issuing the notice of proposed suspension is immaterial because Ms. Quintana was

contemplating a more severe sanction before learning of the Plaintiff’s protected activity.6

Curiously absent from the Plaintiff’s discussion of her First Amended retaliation claim is

any discussion of the Plaintiff’s termination, which was first proposed by the Defendants on

August 14, 2008---over seven months after the Plaintiff’s last protected speech regarding the 311

merger. The Plaintiff concedes that under Breeden, a six month gap cannot support an inference

of causation. Pl.’s Opp’n at 23; Breeden, 532 U.S. at 273 (citing with approval cases finding

three and fourth month gaps insufficient to support an inference of causation); see also Payne v.

District of Columbia, 741 F. Supp. 2d 196, 219-20 (D.D.C. 2010) (finding eight month gap

insufficient to support inference of causation regarding plaintiff’s First Amendment retaliation

claim). Moreover, the Plaintiff fails to respond to the Defendants’ contention that it would have

6
See also Anderson v. Ramsey, No. 04-56, 2006 WL 1030155, at *12 (D.D.C. Apr. 19,
2006) (finding the same holding in Breeden instructive in the context of a First Amendment
retaliation claim).
25
terminated the Plaintiff even absent any protected speech because of the Plaintiff’s repeated

AWOL status, thus conceding the argument. Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when

a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised

by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.”). Accordingly, the Defendants are entitled to summary judgment on all aspects of

the Plaintiff’s First Amendment Retaliation claim.

C. Americans with Disabilities Act Retaliation Claim

The Americans with Disabilities Act provides that “[n]o person shall discriminate against

any individual because such individual has opposed any act or practice made unlawful by this

chapter or because such individual made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).

The Plaintiff alleges in Count V of the Third Amended Complaint the Defendants terminated the

Plaintiff in retaliation for her July 2008 meeting with an EEO counselor regarding the

Defendant’s alleged failure to accommodate the Plaintiff’s disability. Third Am. Compl. ¶¶ 55-

58. As with the prior claims, the Defendants seek summary judgment with respect to the

Plaintiff’s ADA retaliation claim on a number of grounds, only one of which the Court need

address, namely, the Plaintiff’s failure to exhaust her administrative remedies.

“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must

exhaust their administrative remedies by filing an EEOC charge and giving that agency a chance

to act on it.” Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (citing 42

U.S.C. § 12117(a)). “[O]rdinarily receipt of a notice of right-to-sue letter is a condition

precedent” to filing suit under the ADA. Dahlman v. Am. Ass’n of Retired Persons, 791 F. Supp.

26
2d 68, 75 (D.D.C 2011). The Defendants argue the Plaintiff failed to exhaust her administrative

remedies with respect to her ADA retaliation claim because the Plaintiff filed suit before the

District of Columbia Office of Human Rights issued the Plaintiff a right-to-sue letter regarding

the claims.

The Plaintiff contacted an EEO counselor in July 2008 in connection with the

Defendants’ alleged failure to accommodate the Plaintiff’s disability. The July 24, 2008, letter

from OUC to the Plaintiff advised the Plaintiff that she may be terminated if she did not work her

full ten-hour shifts. The Plaintiff filed a charge of discrimination with the Office of Human

Rights on August 7, 2008, alleging the Defendants subjected the Plaintiff to a hostile work

environment and discriminated against her on account of her disability, and further claimed that

the July 24 letter was issued in retaliation for the Plaintiff consulting an EEO counselor, in

violation of the District of Columbia Human Rights Act. The Plaintiff was ultimately terminated

on September 26, 2008. In October 2008, the Plaintiff amended her charge of discrimination to

include retaliatory discharge in violation of the Americans with Disabilities Act. The Plaintiff

amended her initial complaint on January 2, 2009, to include the present retaliation claim under

the ADA, at which point the Office of Human Rights had yet to make any determination as to the

Plaintiff’s charge of discrimination. Accordingly, on June 24, 2009, the Office of Human Rights

dismissed the Plaintiff’s charge because it was “informed that a similar charge” was filed with

this Court.

The Plaintiff does not dispute the fact that she has never received a right-to-sue letter

regarding her ADA retaliation claim. Instead, the Plaintiff suggests that she never sought to

bring a retaliation claim pursuant to the ADA, but rather intended to bring a claim for retaliation

in violation of the District of Columbia Human Rights Act. Pl.’s Opp’n at 25. The Plaintiff

27
explains:

When Plaintiff was terminated, she moved to amend her complaint to add the
termination and the failure to reasonably accommodate her. The termination claim
was categorized as retaliation for having filed a disability claim. The filing was
confused and the terminology of an ADA claim became part of the reference. The
Court, in its September 30, 2009, decision, relying on the amended complaint, sought
to clarify the situation stating the retaliation claim was pursuant to the Americans
With Disabilities Act, because she alleged that she was terminated one month after
filing a claim that the OUC had violated the ADA. The Amended Complaint was in
error. As seen now from Defs’ Exh 24, Ms. Jones filed a complaint about disability,
but did not mention the ADA. [S]ince it was filed with OHR and since it was based
on the EEO Counselor’s Notice of Right to File, which granted her permission to file
a DCHRA claim, Defs’ Exh 22, more accurately, the retaliation is from a DCHRA
filing.

Pl.’s Opp’n at 25. Whatever confusion might have existed in 2009, nothing in the Plaintiff’s

opposition excuses the fact she explicitly invoked the American with Disabilities Act in her

Third Amended Complaint---the operative complaint for purposes of the Defendants’ motion.

Count V of the Third Amended Complaint, in which the Plaintiff alleges she was fired in

retaliation for filing a discrimination complaint in August 2008, does not specify under which

statute the Plaintiff seeks relief. Third Am. Compl. ¶¶ 55-58. However, in her prayer for relief,

the Plaintiff seeks “[a]n order declaring defendants’ actions to be retaliation against Ms. Jones in

violation of the Americans with Disabilities Act of 1990, as amended,” and “[a]n order enjoining

defendants from continuing to discriminate and/or retaliate against Ms. Jones regarding her

reasonable accommodations” under the ADA. Id. at 10 (emphasis added). The only reference to

the District of Columbia Human Rights Act in the entirety of the Third Amended Complaint

appears in the tenth paragraph of the prayer for relief, which seeks “[a]n order granting plaintiff

attorney’s fees pursuant to the D.C. Whistleblower statue; 42 U.S.C. 2000 et[] [s]eq,[ ]the

District of Columbia’s Human Rights Act, the federal Access to Justice Act and 42 U.S.C.

§1983.” Id. The Plaintiff cannot amend her claim to state a cause of action under a different

28
statute by way of her opposition brief. Arbitraje Casa de Cambio, S.A. de C.V., 297 F. Supp. 2d

at 170. Therefore, the Defendants are entitled to summary judgment on the Plaintiff’s ADA

retaliation claim.

IV. CONCLUSION

For the foregoing reasons, viewing the evidence in the light most favorable to the

Plaintiff, the Court finds the Plaintiff failed to raise an genuine issue of material fact with respect

to any of the claims in Third Amended Complaint. The Plaintiff did not respond to the

Defendants’ contention that the Plaintiff’s conduct did not amount to a protected disclosure

under the District of Columbia Whistleblower Protection Act because the Plaintiff’s comments

conveyed information already at issue in the public debate concerning the 311 merger. The

Plaintiff failed to produce sufficient evidence from which a reasonable jury could conclude that

the Plaintiff’s protected speech was a motivating factor in the decision to place the Plaintiff on

administrative leave, proposed suspension of the Plaintiff, or the Defendants’ ultimate

termination of the Plaintiff. Finally, the Plaintiff concedes that she filed her claim for retaliation

in violation of the Americans with Disabilities Act without first receiving a right to sue notice,

and thus failed to exhaust her administrative remedies. Accordingly, the Defendants’ [91]

Motion for Summary Judgment is GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

29