Musgrove v. District of Columbia Public Schools

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
MILDRED MUSGROVE, )
)
Plaintiff, )
) Civil Action No. 06-1861(EGS)
v. )
)
THE GOVERNMENT OF THE )
DISTRICT OF COLUMBIA, )
)
Defendant. )
)

MEMORANDUM OPINION

Plaintiff, Mildred Musgrove, was employed as the principal

of Anacostia High School from 1997 until 2003. Plaintiff claims

that Defendant District of Columbia (the “District”)

discriminated against her by (i) unlawfully compensating male

high school principals at a higher rate of pay than her in

violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)

(“EPA”); (ii) subjecting her to a hostile work environment in

contravention of Title VII of the Civil Rights Act of 1964, 42

U.S.C § 2000e, et seq. (“Title VII”), and the District of

Columbia Human Rights Act, D.C. Code § 2-1401.01, et seq.

(“DCHRA”); and (iii) impermissibly terminating her employment

because of her gender and age in violation of both Title VII and

the DCHRA. Pending before the Court is defendant’s motion for

summary judgment. Upon consideration of the motion, the response

and reply thereto, the applicable law, the entire record, and for
the reasons set forth below the Court hereby GRANTS defendant’s

motion for summary judgment.

I. BACKGROUND

Plaintiff, a female (age 60), was employed as the principal

of Anacostia High School from December 17, 1997 through August

2003. Pl.’s Second Am. Compl. (“Compl.”) ¶¶ 4, 28; Def.’s

Statement of Material Facts Not in Dispute (“Def.’s SMF”) ¶ 1.1

At some point in 1998, plaintiff alleges that she became aware

that “other male principals . . . were being paid more than she

was in the way of salary, bonuses and other financial

incentives.” Compl. ¶ 6. Plaintiff asserts that although she

repeatedly complained about the perceived inequity, her

entreaties went unanswered. Compl. ¶¶ 7—9. Plaintiff also

1
Plaintiff failed to file a separate statement of
genuine issues of material fact as required by the local rules.
See Local Civil Rule 7(h)(1) (“An opposition to [a motion for
summary judgment] shall be accompanied by a separate concise
statement of genuine issues setting forth all material facts as
to which it is contended there exists a genuine issue necessary
to be litigated, which shall include references to the parts of
the record relied on to support the statement.”). Nor did she
file a response admitting or disputing the facts identified by
defendant in its statement of material facts not in dispute.
Instead, plaintiff submitted her own “Statement of Undisputed
Material Facts.” While “the court may assume that facts
identified by the moving party in its statement of material facts
are admitted, unless such a fact is controverted in the statement
of genuine issues filed in opposition to the motion[,]” Local
Civil Rule 7(h)(1), the Court declines to do so in this case as
it is clear from a review of plaintiff’s “Statement of Undisputed
Material Facts” that she does, indeed, contest many of the facts
identified by defendant. The Court therefore relies upon the
statements of the party only to the extent that they are not in
dispute.

2
claims that during her time at Anacostia, she was treated with

hostility by various supervisors, including the superintendent.

See Compl. ¶¶ 14, 15, 16, 18, 19, 21, 22.

On February 24, 2003, there was a small fire at Anacostia

High School. Pl.’s Statement of Undisputed Material Facts

(“Pl.’s SMF”) ¶ 15. Concerned about the potential for damage or

theft, plaintiff ordered the school’s maintenance staff to lock

the doors located near the school’s computer labs. Pl.’s SMF

¶ 15. As a result of this action, plaintiff received a citation

from the fire marshal for violating the fire code. Compl. ¶ 24.

The next day plaintiff was placed on administrative leave for

breaching a directive from the superintendent “regarding fire

code violations.” Compl. ¶ 24. Approximately five months later,

plaintiff received a letter from the District informing her that

she had been terminated. Pl.’s SMF ¶ 18. The letter specified

two bases for her termination: (i) “[d]iscourteous treatment of

the public, supervisor, or other employees,” D.C. Mun. Regs. 5-E,

§ 1401.2(n) (2002), and (ii) “[v]iolation of the rules,

regulations, or lawful orders of the Board of Education or any

directive of the Superintendent of Schools, issued pursuant to

the rules of the Board of Education,” D.C. Mun. Regs. 5-E,

§ 1401.2(t).2 See Pl.’s SMF ¶¶ 18-19.

2
Plaintiff testified that the first reason stemmed from
a hostile work environment complaint that was filed against her
by a staff member at Anacostia High School, and the second reason

3
 On May 14, 2004, plaintiff filed a charge of

discrimination with the District of Columbia Office of Human

Rights (“DCOHR”) alleging “unlawful discriminatory behavior on

the bases of sex, age, and retaliation.” Def.’s SMF ¶ 4; see

generally Def.’s Ex. 2, EEOC Form 5. This charge was cross-filed

with the EEOC. Pl.’s SMF ¶ 22. Following mediation and

investigation, the EEOC issued plaintiff a right to sue letter on

August 7, 2006. Pl.’s SMF ¶ 22. On November 1, 2006, plaintiff

filed her complaint in this Court. Upon conclusion of discovery,

defendant filed a motion for summary judgment. This motion is

now ripe for determination by the Court.

II. STANDARD OF REVIEW

Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002). “A fact is material if it ‘might affect the

outcome of the suit under the governing law,’ and a dispute about

a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”

Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting

stemmed from the fire code violation. See Pl.’s Dep. at 284:16-
285:11.

4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The

party seeking summary judgment bears the initial burden of

demonstrating an absence of genuine issues of material fact.

Celotex, 477 U.S. at 322. In determining whether a genuine issue

of material facts exists, the Court must view all facts in the

light most favorable to the non-moving party. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986);

Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).

The non-moving party’s opposition, however, must consist of

more than mere unsupported allegations or denials and must be

supported by affidavits or other competent evidence setting forth

specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 324. If the

evidence favoring the non-moving party is “merely colorable, or

is not significantly probative, summary judgment may be granted.”

Anderson, 477 U.S. at 250. Moreover, “although summary judgment

‘must be approached with special caution in discrimination cases,

a plaintiff is not relieved of her obligation to support her

allegations by affidavits or other competent evidence showing

that there is a genuine issue for trial.’” Bolden v. Winter, 602

F. Supp. 2d 130, 136 (D.D.C. 2009) (quoting Morgan v. Fed. Home

Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)).

Summary judgment will be granted, therefore, if the plaintiff

fails to submit evidence that creates a genuine factual dispute

5
or entitlement to judgment as a matter of law. Wada v.

Tomlinson, 517 F. Supp. 2d 148, 181 (D.D.C. 2007); 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)).

III. ANALYSIS

Defendant moves for summary judgment as to plaintiff’s EPA,

Title VII, and DCHRA claims, asserting both procedural and

evidentiary deficiencies. Plaintiff, by contrast, contends that

her claims are properly before the Court, and further argues that

genuine issues of material fact prevent an award of summary

judgment in this case. For the reasons discussed below, the

Court finds it appropriate to GRANT defendant’s motion for

summary judgment as to each of plaintiff’s claims.

A. Equal Pay Act Claim

i. Legal Framework

The Equal Pay Act makes it unlawful for an employer to

“discriminate . . . between employees on the basis of sex by

paying wages to employees . . . at a rate less than the rate at

which he [or she] pays wages to employees of the opposite sex

. . . for equal work on jobs the performance of which requires

equal skill, effort, and responsibility, and which are performed

under similar working conditions[.]” 29 U.S.C § 206(d)(1). The

Act “stands for the straight-forward proposition that employees

6
doing equal work should be paid equal wages, regardless of sex.”

Goodrich v. Int’l Bhd. of Elec. Workers, AFL-CIO, 815 F.2d 1519,

1523 (D.C. Cir. 1987) (internal quotation marks omitted). “The

initial burden to prove wage disparity and job equality is on the

plaintiff.” Id. (citing Corning Glass Works v. Brennan, 417 U.S.

188, 195 (1974)).

In order to establish a prima facie violation of the EPA,

“‘[a plaintiff must] show by a preponderance of the evidence that

[he or] she was discriminated against on the basis of sex in [his

or] her pay. Particularly, [he or] she [must] show that: (1) [he

or] she was . . . doing substantially equal work on a job, the

performance of which required substantially equal skill, effort,

and responsibility as jobs held by members of the opposite sex;

(2) the job was performed under similar working conditions; and

(3) [he or] she was paid at a lower wage than members of the

opposite sex doing equal work.’” Smith v. Janey, 664 F. Supp. 2d

1, 12 (D.D.C. 2010) (quoting Nyman v. FDIC, 967 F. Supp. 1562,

1573 (D.D.C. 1997)). “Where a plaintiff establishes a prima

facie case of disparate pay under the Equal Pay Act, a defendant

can avoid liability by pleading an affirmative defense justifying

a pay disparity if it is ‘pursuant to (i) a seniority system;

(ii) a merit system; (iii) a system which measures earnings by

quantity or quality of production; or (iv) a differential based

7
on any other factor other than sex.’” Gaujacq v. EDF, Inc., 601

F.3d 565, 575 (D.C. Cir. 2010) (quoting 29 U.S.C. § 206(d)(1)).

ii. Analysis

Defendant contends that summary judgment must be granted on

plaintiff’s EPA claim, arguing that plaintiff cannot establish a

prima facie violation of the Act. After a careful review of the

record in this case, this Court agrees.3

Citing no record evidence, plaintiff avers that “[b]eginning

in 1998, [she] became aware that other male principals at other

similarly situated high schools, who were hired or promoted at

the same time as she, were being paid more than she was in the

way of salary, bonuses and other financial incentives.” See

Pl.’s SMF ¶ 4 (citing her complaint).4 Although plaintiff

testified about five male high school principals whom she

believed were being paid higher salaries and receiving additional

bonuses and incentives,5 see Pl.’s Dep. Tr. at 121:1-122:18, she

3
Defendant also argues that plaintiff’s EPA claim is
time-barred. However, because the Court finds that plaintiff has
failed to establish a prima facie violation of the EPA, the Court
will assume - without deciding - that plaintiff satisfied the
three-year statute of limitations set forth in 29 U.S.C.
§ 255(a). See 29 U.S.C. § 255(a) (“[A] cause of action arising
out of a willful violation [of the EPA] may be commenced within
three years after the cause of action accrued[.]”).
4
Plaintiff, in her “Statement of Undisputed Material
Facts,” routinely cites either her complaint or her deposition
transcript generally.
5
Bonuses are considered wages for the purposes of the
EPA. See EEOC Regulations Relating to Labor, 29 C.F.R. § 1620.10

8
has failed to adduce any evidence in support of her claim that

these individuals were, in fact, “similarly situated” to her.6

Indeed, rather than produce evidence on the issue of job

equality, plaintiff simply asserts that “[i]t is clear that

principals in senior high schools who served during the same

period of time would have more than comparable job duties.”

(2011) (“Under the EPA, the term ‘wages’ generally includes all
payments made to [or on behalf of] an employee as remuneration
for employment. The term includes all forms of compensation
. . . whether called wages, salary, profit sharing, expense
account, monthly minimum, bonus . . . or some other name.”).
6
It is also unclear to the Court whether plaintiff was,
in fact, being paid less than the male senior high school
principals she identified in her deposition. For instance, on
the issue of salary, plaintiff testified that she received the
highest level of pay possible for her position at the time. See
Pl.’s Dep. Tr. at 162:3–5; see also Pl.’s Dep. Tr. at 118:20-
119:3 (agreeing that she was given “the appropriate salary based
on seniority, size and degrees” when she went to Anacostia High
School). And while plaintiff identified one male principal whom
she believed had received a bonus that she had not received, the
Court was provided with no evidence in support of this claim
other than plaintiff’s deposition testimony and a chart of
unknown origin. See Pl.’s Ex. 7. Even assuming, however, that
each of the male principals identified by plaintiff received
higher salaries and/or additional bonuses compared to plaintiff,
without evidence regarding the skills and effort required for the
plaintiff’s and her comparators’ jobs, or the attendant
responsibilities associated with each of their positions,
plaintiff cannot establish a prima facie violation of the EPA.
See, e.g., Nuzzi v. Bourbonnais Elem. Sch. Dist., 360 Fed. Appx.
664, 666-67 (7th Cir. 2010) (affirming the lower court’s
determination that the plaintiff had failed to establish a prima
facie violation of the EPA where the plaintiff’s comparators -
two higher-paid male principals - supervised a larger staff than
the plaintiff principal).

9
Pl.’s Opp’n at 13. As discussed above, however, such self-

serving assertions are insufficient to survive a motion for

summary judgment.

Moreover, the Court finds the lack of record evidence on the

issue of job equality particularly problematic in this case due

to plaintiff’s concession that salaries for senior high school

principals in the District are based upon factors such as student

body size, length of service with DCPS, and education, see Pl.’s

Dep. Tr at 118:20-119:3, 124:17-125:2, and that bonuses are based

upon factors such as “the condition of the school.” Pl.’s Dep.

Tr. at 126:14-19 (explaining that “the rougher the school, the

more likely there was a bonus”). Without evidence on any of

these issues, the Court finds that plaintiff’s “non-specific,

conclusory assertion[s] . . . fall[] short of establishing by a

preponderance of the evidence that, compared to [her] colleagues,

the plaintiff was doing ‘substantially equal work on a job, the

performance of which required substantially equal skill, effort,

and responsibility.’” Smith, 664 F. Supp. 2d at 12 (quoting

Nyman, 967 F. Supp. at 1575). “Such a lack of evidence . . .

foredoom[s an] Equal Pay Act claim.” Id. (internal quotation

marks omitted). Accordingly, because the record before the Court

is insufficient to allow a rational trier of fact to find for

plaintiff on her EPA claim, the Court GRANTS defendant’s motion

for summary judgment on this claim.

10
 B. Title VII Claims

Under Title VII of the Civil Rights Act of 1964, it is an

“unlawful employment practice” for employers “to discriminate

against any individual with respect to his [or her] compensation,

terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). Pursuant to this statutory provision,

plaintiff alleges that defendant subjected her to a hostile work

environment and impermissibly discriminated against her on the

basis of her sex and her age.

i. Age Discrimination

As a threshold matter, the Court agrees with defendant that

plaintiff’s claim for age discrimination under Title VII cannot

survive. Unlike the DCHRA, see infra Section III.C, Title VII

does not prohibit discrimination on the basis of age. See 42

U.S.C. § 2000(e).7 The Court, therefore, GRANTS defendant’s

motion for summary judgment as to plaintiff’s age discrimination

claim under Title VII. The Court will now address plaintiff’s

two remaining Title VII claims: hostile work environment and sex

discrimination.
7
The Age Discrimination in Employment Act, 29 U.S.C. § 621
et seq. (the “ADEA”), is the federal statute that prohibits
discrimination on the basis of age. Plaintiff, however, never
sought leave of the Court to amend her complaint to assert a
claim under the ADEA nor did she acknowledge or respond to
defendant’s argument that “plaintiff cannot maintain a cause of
action for age discrimination under Title VII,” Def.’s Mot. at
16. See generally Pl.’s Opp’n.

11
 ii. Hostile Work Environment

a. Legal Framework

To sustain a hostile work environment claim, “a plaintiff

must show that his [or her] employer subjected him [or her] to

‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.’”

Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

To determine whether a hostile work environment exists, the court

looks to the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work

performance. Id. (citing Faragher v. City of Boca Raton, 524

U.S. 775, 787-88 (1998)).

b. Analysis

Defendant argues that plaintiff’s hostile work environment

claim is procedurally deficient and fails as a matter of law.

See Def.’s Mot. at 9–11. Plaintiff, by contrast, contends that

her claim was timely filed and further asserts that she has

established a prima facie case of hostile work environment. See

Pl.’s Opp’n 10–12, 14–15. The Court will begin its analysis by

addressing defendant’s procedural arguments, and, in particular,

its contention that this claim is time-barred.

12
 “Before bringing a Title VII suit, a plaintiff must first

file a timely EEOC charge.” Lewis v. City of Chicago, 130 S. Ct.

2191, 2196–97 (2010); see also Payne v. Salazar, 619 F.3d 56, 65

(D.C. Cir. 2010). Title VII requires that a charge be filed

within 180 or 300 days — depending on the state — “after the

alleged unlawful employment action occurred.” 42 U.S.C. § 2000e-

5(e)(1). In this case, plaintiff had 300 days from the alleged

violation to file her charge. See generally 29 C.F.R.

§ 1601.13(a)(4), (b)(1).

As discussed above, plaintiff filed a charge with the DCOHR

and the EEOC on May 14, 2004. In her charge, she alleged that

she was subjected to a hostile work environment from the spring

of 2002 until October 2002. See Def.’s Ex. 2, EEOC Form 5

(“Respondent subjected me to harassment when from Spring 2002

through September 2002, I received many intimidating phone calls

about the upcoming September elections. In August 2002,

Respondent’s Chief of Staff (male) stated that he felt that I was

frustrated, divisive, bitter and angry. In October 2002,

Respondent’s Director of Communications (female) chastised me for

failing to return a telephone call to a Washington Post Reporter.

This harassment created a hostile work environment for me.”).

Defendant argues that plaintiff’s charge is untimely with respect

to this behavior, explaining that plaintiff’s May 14, 2004 charge

was filed well past the 300-day window provided by § 2000e-

13
5(e)(1). See Def.’s Mot. at 9. This Court agrees.9

Accordingly, the Court finds that plaintiff’s hostile work

environment claim under Title VII is time-barred with respect to

the purported incidents that occurred in 2002.

Plaintiff also argues that another incident — which

occurred after she had filed her charge with the DCOHR and EEOC —

comprises part of her hostile work environment claim. See Pl.’s

Compl. ¶ 38 (discussing the District’s purported breach of its

settlement agreement with her and asserting that “the hostile

work environment had still continued”). Plaintiff did not,

however, amend her charge to reflect this incident. Because

“Title VII ‘[c]omplainants must timely exhaust the[ir]

administrative remedies before bringing their claims to court,’”

Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (quoting

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)), the

9
Rather than directly addressing defendant’s argument,
plaintiff draws the Court’s attention to its Memorandum Opinion
dated March 16, 2009 (the “March 2009 Memorandum Opinion”). See
Pl.’s Opp’n at 11-12. In its March 2009 Memorandum Opinion the
Court found, among other things, that plaintiff timely filed her
administrative complaint with respect to her allegation of
discriminatory discharge. See March 2009 Mem. Op. at 7
(“Plaintiff filed her claims with OHR on May 19, 2004, alleging
there that the initial discriminatory discharge occurred on July
16, 2003. She, therefore, met the one-year deadline for her
initial filing[.]”). The Court did not, however, address whether
plaintiff’s hostile work environment claim under Title VII was
timely filed. Plaintiff’s reliance on the Court’s March 2009
Memorandum Opinion for this issue, therefore, is misplaced. As
discussed, infra, however, even if plaintiff’s hostile work
environment claim was not procedurally barred, it would
nevertheless fail because plaintiff’s evidence is insufficient to
support a claim for hostile work environment.

14
Court finds that plaintiff’s second hostile work environment

claim is not properly before the Court. Accordingly, as a result

of these procedural deficiencies, the Court concludes that

defendant is entitled to summary judgment on plaintiff’s hostile

work environment claim under Title VII.

Even assuming, however, that plaintiff’s hostile work

environment claim was timely filed and administratively

exhausted, the Court finds that summary judgment is warranted

because “the totality of circumstances presented in this record

does not rise to the level necessary to support a hostile work

environment claim.” Baloch, 550 F.3d at 1201. Specifically,

having closely reviewed the record citations relied upon by

plaintiff in support of her hostile work environment claim, see

Pl.’s Opp’n at 14-15, the Court finds that the incidents upon

which plaintiff relies - (i) being “loud[ly]” reprimanded for

failing to return the call of a Washington Post reporter, Pl.’s

Dep. Tr. at 204, (ii) having the Superintendent make occasional

unannounced visits at her school, and (iii) having the

Superintendent refuse to meet with her “[o]n more than one

occasion,” Pl.’s Opp’n at 15, - are simply insufficient in their

frequency, severity, and offensiveness to support a claim for

hostile work environment. In addition, plaintiff has also failed

to provide the Court with any evidence “indicating any ‘linkage

of correlation’ between the allegedly harassing behavior and the

15
claimed ground of discrimination.” Holmes-Martin v. Sebelius,

693 F. Supp. 2d 141, 166 (D.D.C. 2010) (citing cases); see also,

e.g., Baloch, 550 F.3d at 1201 (affirming the district court’s

award of summary judgment on a hostile work environment claim

where “none of the comments or actions directed at [the

plaintiff] expressly focused on his race, religion, age, or

disability” and “the disciplinary actions and workplace conflicts

were not so ‘severe’ or ‘pervasive’ as to have changed the

conditions of [the plaintiff’s] employment”). Accordingly, as a

result of these procedural and evidentiary deficiencies, the

Court GRANTS defendant’s motion for summary judgment on this

claim as well.

iii. Sex Discrimination

a. Legal Framework

Discrimination claims under Title VII have traditionally

been analyzed under the McDonnell Douglas burden shifting

framework. The D.C. Circuit, however, has instructed that when

considering a motion for summary judgment in an employment

discrimination case, a district court need not consider whether a

plaintiff has actually satisfied the elements of a prima facie

case if the defendant has offered a legitimate,

non-discriminatory reason for its actions. Brady v. Office of

the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

Instead, “the district court must resolve one central question:

16
Has 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. In other

words, a court must determine whether “all the evidence, taken

together, [is] insufficient to support a reasonable inference of

discrimination.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir.

2009) (citing Brady, 520 F.3d at 494-95); see also Holcomb v.

Powell, 433 F.3d 889, 896-97 (D.C. Cir. 2006) (“‘[T]he plaintiff

must show that a reasonable jury could conclude from all of the

evidence that the adverse employment decision was made for a

discriminatory reason.’” (quoting Lathram v. Snow, 336 F.3d 1085,

1088 (D.C. Cir. 2003))). “[A]ll of the evidence,” in turn, means

“any combination of (1) evidence establishing the plaintiff's

prima facie case; (2) evidence the plaintiff presents to attack

the employer’s proffered explanation for its actions; and (3) any

further evidence of discrimination that may be available to the

plaintiff, such as independent evidence of discriminatory

statements or attitudes on the part of the employer.” Holcomb,

433 F.3d at 897; see also Washington v. Chao, 577 F. Supp. 2d 27,

39 (D.D.C. 2008) (“[I]n all instances where a defendant has

asserted a legitimate, non-discriminatory reason for its conduct,

the Court shall evaluate all of the evidence in the record,

17
including that which would be used to establish a prima facie

case (but not for the purpose of evaluating whether a prima facie

case has been established), to address the ultimate question of

discrimination vel non.”).

A plaintiff bears the burden of persuasion to show that a

defendant’s proffered non-discriminatory reason for the

challenged action is a pretext. See Morgan v. Fed. Home Loan

Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). “A plaintiff

can carry this burden by showing that a non-discriminatory reason

offered by a defendant is false, Montgomery v. Chao, 546 F.3d

703, 707 (D.C. Cir. 2008), or otherwise ‘presenting enough

evidence to allow a reasonable trier of fact to conclude that the

employer’s proffered explanation is unworthy of credence.’”

Wicks v. Am. Transmission Co. LLC, 701 F. Supp. 2d 38, 45 (D.D.C.

2010) (quoting Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir.

2008)). A plaintiff may also “attempt[] to produce evidence

suggesting that the employer treated other employees of a

different race, color, sex, or national origin more favorably in

the same factual circumstances” than the employer treated the

plaintiff. Brady, 520 F.3d at 495.

b. Analysis

In this case, defendant has proffered a legitimate, non-

discriminatory reason for plaintiff’s termination. Specifically,

defendant asserts that plaintiff was terminated for

18
(i) disregarding the superintendent’s directive regarding locked

doors at school in violation of the D.C. Fire Code; and (ii) the

discourteous treatment of public employees. See Def.’s SMF ¶ 10;

Def.’s Mot. at 15; see also Pl.’s SMF ¶¶ 18-19; Pl.’s Dep. Tr. at

284:16-285:11. Because defendant has put forth legitimate, non-

discriminatory reasons for plaintiff’s termination, the issue

before the Court is whether plaintiff has produced sufficient

evidence for a reasonable jury to find that defendant’s asserted

non-discriminatory reasons were not the actual reasons for the

adverse employment action, and that the employer’s actions were

discriminatory. For the reasons discussed below, the Court finds

that plaintiff has failed to meet this burden.

Plaintiff contends that defendant’s legitimate, non-

discriminatory reasons were pretext for sex discrimination

“because [plaintiff] testified in her deposition that other males

had also locked doors but had not suffered the same adverse

employment action.” Pl.’s Opp’n at 16. While plaintiff’s

testimony - if true - is compelling evidence in support of a

claim of pretext, plaintiff has failed to provide the Court with

any evidence in support of this allegation other than her own

deposition testimony. Such self-serving testimony alone,

however, is insufficient to survive a motion for summary

judgment. See Fields v. Office of Johnson, 520 F. Supp. 2d 101,

105 (D.D.C. 2007) (“Self-serving testimony does not create

19
genuine issues of material fact.”); see also generally Taylor v.

FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997) (on a motion for summary

judgment, courts “examine the facts in the record and reasonable

inferences in the light most favorable to the nonmoving party,

but do not accept bare conclusory allegations as fact” (internal

citation omitted)). Moreover, even if plaintiff had proffered

competent evidence in support of these purported comparators,

plaintiff has not alleged these individuals also violated D.C.

Municipal Regulation §1401.2(n) - “[d]iscourteous treatment of

the public supervisor or other employees” - or an analogous

provision. Unless these proffered comparators also committed a

second comparable offense, they are not “similarly situated” to

plaintiff for purposes of Title VII. See Adair v. Solis, 742 F.

Supp. 2d 40, 53 n.12 (D.D.C. 2010) (“To show that another

individual is similarly situated, Plaintiff must demonstrate that

all of the relevant aspects of their employment situation are

nearly identical. Therefore, when, as here, an employer states

that it took an adverse employment action due to the plaintiff’s

misconduct, the plaintiff’s comparator must have been charged

with a comparable offense and then treated less harshly than the

plaintiff.” (internal quotation marks and citation omitted)). In

sum, having received no competent evidence in support of

plaintiff’s purported comparators, nor any evidence indicating

that defendant’s proffered explanation is unworthy of credence,

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the Court finds that plaintiff has failed to carry the burden of

persuasion on this issue. The Court therefore finds that

defendant is entitled to summary judgment on plaintiff’s sex

discrimination claim under Title VII. Accordingly, the only

claims remaining before the Court are plaintiff’s claims of

hostile work environment and discrimination under the DCHRA.

C. District of Columbia Human Rights Act Claims

i. Legal Framework

The DCHRA, like Title VII, prohibits certain discriminatory

practices “[b]y an employer,” making it unlawful for an employer

to “fail or refuse to hire, or to discharge, any individual; or

otherwise discriminate against any individual, with respect to

his compensation, terms, conditions, or privileges of employment”

based upon several protected categories including, inter alia, an

individual’s “race, color, religion, national origin, sex [or]

age.” D.C. Code § 2-1402.11(a)(1).10 The purpose of the DCHRA

10
The DCHRA is broader than Title VII as it prohibits
discrimination based on the “race, color, religion, national
origin, sex, age, marital status, personal appearance, sexual
orientation, gender identity or expression, family
responsibilities, genetic information, disability, matriculation,
or political affiliation of any individual,” while Title VII only
prohibits discrimination with respect to an individual’s “race,
color, religion, sex, or national origin.” Compare D.C. Code
§ 2-1402.11(a)(1) with 42 U.S.C. § 2000e-2(a)(1). Some of the
additional categories protected under the DCHRA, however, are
protected under other federal statutes. See, e.g., ADEA, 29
U.S.C. § 621 et seq. (age discrimination); Genetic Information
Nondiscrimination Act of 2008, Pub. L. No. 110–233, 122 Stat. 881
(codified as amended in various sections of chapters 26, 29, and
42 of the United States Code).

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is “to secure an end in the District of Columbia to

discrimination for any reason other than that of individual

merit.” Id. § 2-1401.01. When construing provisions of the D.C.

Code — including the DCHRA — this Circuit “defer[s] to the

District of Columbia Court of Appeals on questions of statutory

interpretation.” United States v. Edmond, 924 F.2d 261, 264

(D.C. Cir. 1991). The District of Columbia Court of Appeals, in

turn, “has made clear that federal case law addressing questions

arising in Title VII cases is applicable to the resolution of

analogous issues raised regarding DCHRA claims.” Ali v. Dist. of

Columbia, 697 F. Supp. 2d 88, 92 n.6 (D.D.C. 2010) (citing Howard

Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C. 1994)); see also,

e.g., Wicks, 701 F. Supp. 2d at 43-44 (“Discrimination claims

brought under the DCHRA are analyzed in the same manner as claims

brought under Title VII[.]” (citing cases)); Elam v. Bd. of Trs.,

530 F. Supp. 2d 4, 22 n.7 (D.D.C. 2007) (“The elements of a

hostile work environment claim under the DCHRA mirror the federal

requirements.” (citing Lively v. Flexible Packaging Assoc., 830

A.2d 874, 889 (D.C. 2003))). Likewise, age discrimination claims

brought under the DCHRA are analyzed in the same manner as claims

arising under the Age Discrimination in Employment Act of 1967,

29 U.S.C. § 621 et seq. (the “ADEA”). See Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 376 (D.C. Cir. 2010)

(“The courts of the District of Columbia ‘look[] to federal court

22
decisions interpreting the [ADEA] when evaluating age

discrimination claims under the DCHRA.’” (quoting Washington

Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1073 n.7 (D.C.

2008))).

ii. Analysis

As a threshold matter, defendant argues that plaintiff’s

claims under the DCHRA are barred for failure to comply with D.C.

Code § 12-309 (“§ 12-309”). Defendant also asserts, however,

that plaintiff’s DCHRA claims fail as a matter of law.

Plaintiff, in turn, contends that her claims are in full

compliance with § 12-309, and further asserts that genuine issues

of material fact preclude an award of summary judgment on her

DCHRA claims. The Court will begin by addressing defendant’s

argument with regards to § 12-309.

a. D.C. Code § 12-309

Defendant first argues that “judgment must be entered in

favor of the District for plaintiff’s failure to comply with the

mandatory requirements of § 12-309.” Def.’s Mot. at 11. This

provision states:

An action may not be maintained against the District of
Columbia for unliquidated damages to person or property
unless, within six months after the injury or damage
was sustained, the claimant, his agent, or attorney has
given notice in writing to the Mayor of the District of
Columbia of the approximate time, place, cause, and
circumstances of the injury or damage. A report in
writing by the Metropolitan Police Department, in
regular course of duty, is a sufficient notice under
this section.

23
D.C. Code § 12-309. “Th[is] notice requirement is a prerequisite

to a suit against the District of Columbia ‘because it represents

a waiver of sovereign immunity.’” Blocker-Burnette v. District

of Columbia, 730 F. Supp. 2d 200, 203 (D.D.C. 2010) (quoting

Faison v. District of Columbia, 664 F. Supp. 2d 59, 68 (D.D.C.

2009)). Compliance with the notice requirement is mandatory,

id., and “‘is to be strictly construed[.]’” Barnhardt v.

District of Columbia, 601 F. Supp. 2d 324, 329 (D.D.C. 2009)

(quoting Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.

1981)). In addition, the District of Columbia Court of Appeals

recently clarified that § 12-309 “applies to claims for

unliquidated damages brought against the District of Columbia

under the DCHRA.” Owens v. District of Columbia, 993 A.2d 1085,

1089 (D.C. 2010).

The issue before the Court, therefore, is whether plaintiff

satisfied § 12-309 when she sent a letter to an individual in the

District of Columbia Public School’s Office of Human Resources,

which stated that she had been “discriminated against due to her

age and gender” and that she was “comfortable taking this

complaint of discrimination to trial.” See Def.’s Ex. 4, Letter

Dated Sept. 20, 2004; see also Def.’s Ex. 3, Pl.’s Resp. to

Def.’s Interrog. (contending that the District was put on notice

of plaintiff’s claim as a result of the September 2004 letter).

Although the Court previously found this letter sufficient to

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satisfy the notice requirement of § 12-309, see March 2009 Mem.

Op. at 6, upon further consideration, the Court VACATES its

earlier finding. See Fed. R. Civ. P. 54(b) (providing, in

relevant part, that “any order or other decision, however

designated, that adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties . . . may be

revised at any time before the entry of a judgment adjudicating

all the claims and all the parties’ rights and liabilities”). As

this Court recently explained, § 12-309 may only be satisfied by

two types of notice: (i) written notice to the Mayor of the

District; or (ii) a report prepared by the Metropolitan Police

Department in the regular course of duty. See Martin v. District

of Columbia, 720 F. Supp. 2d 19, 24 (D.D.C. 2010).

Because § 12-309 “is to be construed narrowly against

claimants,” Owens, 993 A.2d at 1088 (internal quotation marks

omitted), the Court cannot conclude that plaintiff’s letter to

the District of Columbia Public School’s Office of Human

Resources satisfied § 12-309. See also, e.g., Brown v. District

of Columbia, 251 F. Supp. 2d 152, 165 (D.D.C. 2003) (finding that

the plaintiff failed to satisfy § 12-309 when she sent letters to

the District’s police chief, D.C. Corporation Counsel for the

District of Columbia, the Office of the United States Attorney

25
for the District of Columbia, and other local government

officials). Accordingly, to the extent that plaintiff seeks

unliquidated damages from the District for her DCHRA claims, the

Court finds that these claims are barred for failure to comply

with § 12-309.12

b. DCHRA Discrimination Claims

The Court must now determine whether summary judgment is

warranted as to plaintiff’s DCHRA claims for hostile work

environment, sex discrimination, and age discrimination insofar

as plaintiff seeks liquidated damages for these claims. For the

reasons set forth above, the Court finds that defendant is

entitled to summary judgment on plaintiff’s claims for hostile

work environment and sex discrimination under the DCHRA. See

supra Section III.B.i.b (finding that the totality of

circumstances presented in the record before the Court does not

rise to the level necessary to support a hostile work environment

claim) and Section III.B.ii.b (concluding that plaintiff failed

to put forth sufficient evidence to rebut defendant’s legitimate,

12
Section 12-309 only requires notice for actions seeking
unliquidated damages, such as compensatory and punitive damages.
Plaintiff’s DCHRA claims are not barred, therefore, to the extent
that she is seeking back pay and other equitable relief. See
Blocker-Burnette, 730 F. Supp. 2d at 204-05 (explaining that
awards of back pay and other equitable relief are not barred by a
party’s failure to comply with § 12-309, while claims for
compensatory and punitive damages are barred if notice is not
given).

26
non-discriminatory reasons for plaintiff’s termination).

Plaintiff’s only remaining claim, therefore, is her claim for age

discrimination under the DCHRA. For the reasons discussed below,

the Court finds that summary judgment must be awarded to

defendant on this claim as well.

“[A] claimant under the DCHRA, if he [or she] is to survive

summary judgment, must show a reasonable jury could find his [or

her] age ‘had a determinative influence on the’ challenged

employment action.” Schuler, 595 F.3d at 376 (citing Washington

Convention, 953 A.2d at 1073). Having closely reviewed the

record in this case, the Court finds that in light of defendant’s

legitimate, non-discriminatory reasons for plaintiff’s

termination, no reasonable jury could find that plaintiff’s age

either “‘had a determinative influence’” upon defendant’s

decision to terminate her or was the “‘but-for’ cause of that

decision.” Id.13 Accordingly, the Court hereby GRANTS

defendant’s motion for summary judgment as to plaintiff’s age

discrimination claim under the DCHRA.

13
Indeed, plaintiff provides no response to defendant’s
assertion that “[she] has provided no evidence that her age was a
factor in her termination from her position as Principal of
Anacostia High School on July 23, 2003,” Def.’s Mot. at 13. See
generally Pl.’s Opp’n.

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IV. CONCLUSION

For the reasons set forth above, the Court hereby GRANTS

defendant’s motion for summary judgment. An Amended Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
April 7, 2011

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