UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WISLER MARCELUS, )
)
Plaintiff, )
)
v. ) Civil Case No. 07-0721 (RJL)
)
CCA OF TENNESSEE, INC., )
)
Defendant. )
)
)
'lei
MEMORANDUM OPINION
(March 3-,2010) [#28]
Wisler Marcelus ("plaintiff') brings this lawsuit against his former employer, CCA
of Tennessee, Inc. ("defendant"), alleging claims for discrimination, retaliation, and breach
of contract in connection with his termination as a correctional officer at the DC Jail. The
Court having previously dismissed the plaintiff s claims for retaliation and breach of
contract, all that remain are his claims of discrimination. See Marcelus v. Corrs. Corp. of
Am./Corr. Treatment Facility, 540 F. Supp. 2d 231 (D.D.C. 2008). The plaintiff alleges that
the defendant terminated his employment on account of his national origin and age in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age
Discrimination in Employment Act ("ADEA"), respectively. (Am. CompI. [# 15] ~ 1). I The
I Plaintiffs Complaint also raises potential claims of harassment and hostile work
environment on account of his national origin. He alleges, for instance, that co-workers and
supervisors taunted him with derogatory names like "Haiti-Man" and "Voodoo Man."
(CompI. [#1] ~~ 1,10-13; Am. CompI. [#15] ~~ 1,10-13). As the Court observed in its
Memorandum Opinion dismissing the plaintiffs retaliation and breach of contract claims,
the plaintiff did not oppose the defendant's argument against his harassment and hostile
defendant now moves for summary judgment on the ground that the plaintiff s
discrimination claims fail as a matter of law. Having reviewed the pleadings and the record,
the Court GRANTS the defendant's motion.
BACKGROUND
The plaintiff was born in Haiti in 1947. (Marcelus Dep. [#28-4] at 9). The defendant
hired him as a correctional officer at the District of Columbia Correctional Treatment
Facility ("CTF,,)2 in 2002. (Am. CompI. [# 15] ~ 9). A couple of years later, the plaintiff
began working in one of the CTF's two Special Management Units ("SMUs"), which house
inmates who need special protection or who pose a threat to other inmates. (PI. Opposing
Facts [#35] ~~ 11-12, 19). Although there is some disagreement about whether the plaintiff
had timely received the necessary specialized training for that job assignment, (Jd. ~ 13),
there is no disagreement that he was well aware of the policy prohibiting two or more
inmates from leaving their cells at the same time, (Jd. ~~ 14-16). The defendant contends
that the plaintiff violated this policy and lied about it. Not surprisingly, the plaintiff
contends that he did nothing wrong and that his termination was actually the result of
discrimination on account of his Haitian descent and his age.
The plaintiffs discrimination claims arise from an incident that occurred on
September 3, 2004. The plaintiff was escorting an inmate out of the cell block when another
inmate exited his cell. (Marcelus Dep. [#28-4] at 25; PI. Opposing Facts [#35] ~ 21).
work environment claims. (Mem. Op. [# 11] at 3 n.3). As a result, the Court did not address
those claims based on its belief that the plaintiff was not pursuing them. (Jd.). Nothing in
the plaintiff s summary judgment briefing changes this belief. Because the plaintiff has
made no effort to defend or otherwise pursue his harassment and hostile work environment
claims, the Court considers those claims to be waived.
2 The defendant operates the CTF, also known as "DC Jail." (Am. CompI. [# 15] ~ 8).
2
Suddenly, the inmate that the plaintiff was escorting broke away and attacked the other
inmate. (Marcelus Dep. [#28-4] at 25; PI. Opposing Facts [#35] ~ 23). Responding to the
plaintiffs call for assistance, an officer from the other SMU helped regain control of the
inmates. (Marcelus Dep. [#28-4] at 34). Following the altercation, the plaintiff completed
an incident report in which he explained that the unescorted inmate was able to leave his cell
because the lock on the cell door was broken. (Id. at Ex. 2).
In accordance with CTF procedures, the assistant chief of security conducted an
investigation of the incident. (PI. Opposing Facts [#35] ~ 32). After interviewing both
inmates, he concluded that their accounts differed from the plaintiffs. (Rychen Deci. [# 28-
8] ~ 7). Contrary to the plaintiffs explanation that the cell lock had malfunctioned, both
inmates suggested that the plaintiff had actually authorized the unescorted inmate to leave
his cell for a shower privilege. (Id. ~~ 5-7). In light of these conflicting accounts, the
assistant chief asked CTF's locksmith to inspect the lock. (Id. ~ 8). The locksmith reported
that he had repaired the lock before the incident and that it was working properly when he
inspected it on September 4, the day after the incident. (Flores Decl. [#28-9] ~~ 4-5). Given
this information, the assistant chief concluded that the plaintiff had violated CTF policy by
allowing the two inmates out of their cells at the same time and that he had falsified
information in his incident report. (Rychen Decl. [#28-8] ~ 10). The assistant chief then
prepared a report recommending that the warden issue a Problem Solving Notice ("PSN,,)3
to the plaintiff. (Id.).
A PSN is a formal charge of misconduct that informs the employee about possible
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disciplinary action. (Figueroa Decl. [#28-3] ~ 7).
3
Following the investigation, the plaintiff received a PSN and eventually met with the
warden to discuss the charges. (Marcelus Dep. [# 28-4] at 64-65, Ex. 9). At the meeting,
the warden reviewed the plaintiffs file and then asked the plaintiff about what had
happened. (Jd. at 68). After the plaintiff recounted the facts that he had detailed in his
incident report, the warden terminated the plaintiffs employment and asked him to leave the
premises. (Jd.). The warden reached this decision based on his finding that the plaintiff had
violated the CTF policy against allowing more than one inmate out of their cells at the same
time. (Jd.). The warden also took account of a previous incident in which the plaintiff was
suspended (but not fired) for violating CTF policy during a physical altercation between a
fellow correctional officer and an inmate. (Jd.; PI. Opposing Facts [#35] ~ 26-28). In
addition, the warden decided that termination was appropriate because he believed that the
plaintiff had lied. (Marcelus Dep. [#28-4] at 68). The plaintiff eventually received a letter
from CCA confirming that his termination was effective on October 11, 2004. 4 (Am.
Compi. [#15] ~ 26.)
Not long thereafter, the plaintiff filed an Equal Employment Opportunity
Commission ("EEOC") charge alleging "national origin" and "age" discrimination. (Def.
Mot. for Partial Dismissal [#7] at Ex. A [#7-2]). In the EEOC charge, the plaintiff claimed
that he was used as a "scapegoat" so that prison officials could defend themselves against a
lawsuit filed by the victim-inmate. (Jd.). He also claimed that younger employees of other
national origins had been suspended, not terminated, in similar circumstances. (Jd.). After
4 In its Answer, the defendant states that "the letter incorrectly stated that Plaintiffs
termination was effective as of October 11, 2004; Plaintiff s termination was effective as of
September 30, 2004." (Answer [#6] ~ 26). This discrepancy is not material for purposes of
resolving the defendant's summary judgment motion.
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the EEOC issued a right to sue letter, the plaintiff initiated this lawsuit. CCA filed its
Answer and now moves for summary judgment on the plaintiffs discrimination claims.
STANDARD OF REVIEW
Summary judgment is proper where the evidence shows "that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). Ifa motion for summary judgment is properly supported, "an
opposing party may not rely merely on allegations or denials in its own pleading; rather, its
response must-by affidavits or as otherwise provided in this rule-set out specific facts
showing a genuine issue for trial." Fed. R. Civ. P. 56(e). To the extent that the non-moving
party offers evidence in response, that evidence "is to be believed, and all justifiable
inferences are to be drawn in [the non-movant's] favor." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,255 (1986).
DISCUSSION
The plaintiff s claims are rather straightforward. He alleges that the defendant fired
him simply because of his national origin and age. It is unlawful under Title VII of the Civil
Rights Act for an employer to "fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's ... national origin."
42 U.S.C. § 2000e-2(a)(1). This statute establishes just two elements for an employment
discrimination claim: "(i) the plaintiff suffered an adverse employment action (ii) because
of the employee's ... national origin." Brady v. Office a/Sergeant at Arms, 520 F.3d 490,
493 (D.C. Cir. 2008). If the employee has suffered an adverse employment action and if the
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employer has asserted a legitimate, non-discriminatory reason for that action, then this Court
need only determine at the summary judgment stage whether the "employee produced
sufficient evidence for a reasonable jury to find that the employer's asserted non-
discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of ... national origin." Jd. at 494. The
same approach applies as well to age discrimination claims under the ADEA. See Brown v.
Brody, 199 F.3d 446, 456 n.lO (D.C. Cir. 1999), abrogated on other grounds by Steele v.
Schafer, 535 F.3d 689 (D.C. Cir. 2008) (stating that courts "routinely apply the same
standards to evaluate Title VII claims as they do ADA claims, ADEA claims, and even
ERISA claims").
There is no doubt that the defendant's decision to discharge the plaintiff is an adverse
employment action. The defendant justifies this decision on grounds that the plaintiff
violated CTF policy, that he lied about it, and that he had been suspended once already for
violations of CTF policy in connection with a physical altercation. (Def. Summ. 1. Br. [#28]
5
at 12-13). Not surprisingly, the plaintiff contends that these non-discriminatory reasons are
mere pretexts for the discriminatory animus that really motivated the defendant's decision. I
disagree.
To prove discriminatory intent, the plaintiff makes two arguments. First, he
challenges the defendant's conclusion that he violated CTF policy and that he falsified his
incident report. In essence, the plaintiff contends that he did nothing wrong and that to the
5 The plaintiff claims that the defendant never raised his prior suspension as a basis
for his termination, (PI. Opp. [#36-1] at 38), but this claim is belied by his own deposition
where he testified that the warden specifically mentioned the prior incident, (Marcelus Dep.
[#28-4] at 68).
6
extent the defendant found otherwise, it was because the defendant "conducted an
investigation that was biased and flawed from its inception" and was "pre[ -]designed to
achieve the results that [the defendant] wanted." (PI. Opp. [#36-1] at 35). To support this
claim, the plaintiff cites a litany of errors made by the assistant chief of security who
conducted the investigation and by the warden who made the final decision to terminate the
plaintiffs employment. He contends, for instance, that their reliance on the statements of
both the locksmith and the victim-inmate was misplaced because those statements lacked
credibility. (Jd. at 36-37). He also contends that the defendant mischaracterized the other
inmate's account of the incident. (Jd. at 37). More importantly, the plaintiff claims that the
veracity of his account is supported by the declaration of the corrections officer assigned to
the preceding shift who was not interviewed during the investigation but has since
confirmed that the cell lock was not functioning properly on the morning of September 3.
(ld.). That the lock had malfunctioned is not unusual, says the plaintiff, because it is
common knowledge that the cell locks frequently break when inmates repeatedly kick them,
as the victim-inmate had done the night before the incident. (ld. at 37-38). Finally, the
plaintiff points to positive performance reviews that he claims the defendant disregarded in
reaching its decision to fire him. (Jd. at 38). To the plaintiff, these defects collectively
demonstrate that the defendant was biased against him. Not quite!
Even if the plaintiff is correct that the investigation and his subsequent discharge
were somehow unfairly rigged,6 that fact alone does not establish unlawful discrimination
on account of national origin or age. The anti-discrimination statutes "[do] not hold
6 Of course, the Court renders no judgment on that allegation.
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employers liable for erroneous judgment, unless that judgment is motivated by an illegal
discriminatory motivation." Phillips v. Holladay Prop. Servs., Inc., 937 F. Supp. 32, 37
(D.D.C. 1996). In short, the law does not prohibit employers from treating their employees
"unfairly" so long as that treatment is not the product of unlawful discriminatory intent. It
bears emphasizing that the federal courts are not empowered by the civil rights laws to
referee every dispute or to remedy every wrong that might arise from an employment
decision. More aptly put, the Court is not a "super-personnel department." Dale v. Chicago
Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). As such, it may not "second-guess an
employer's personnel decision absent demonstrably discriminatory motive." Fischbach v.
D.C Dep't of Carr. , 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal quotation marks
omitted). The Court's task is limited to determining whether an employee's factual
allegations actually raise a triable issue of employment discrimination on the basis of race,
color, religion, sex, or national origin. Brady, 520 F .3d at 494. Charges of unfairness, no
matter how well- founded, do not by themselves prove unlawful discrimination. After all, the
anti-discrimination statutes do not make "an employer liable for simply ... arbitrary
decisions." Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir. 1987). To survive
summary judgment, therefore, the aggrieved employee must point to some evidence that the
decision-even if wrong or unfair-was based on discriminatory animus. 7
7 The case law on this point is overwhelming. See, e.g., Waggoner v. City of
Garland, 987 F.2d 1160,1166 (5th Cir. 1993) (stating that evidence of innocence contrary
to the allegations relied upon by the employer is irrelevant unless the employee can
"produce evidence demonstrating that [the employer] did not in good faith believe the
allegations, but relied on them in a bad faith pretext to discriminate against him an the basis
afhis age"); Royall v. Nat 'I Ass 'n of Letter Carriers, AFL-CIO, 507 F. Supp. 2d 93, 110
(D.D.C. 2007) ("It may be that the decision to terminate the plaintiff was ... , on balance,
8
The plaintiffs second argument is an attempt to do that. He contends that the
defendant treated two co-workers more leniently even though they had committed similar or
more egregious infractions because they are of a different national origin and are younger
than the plaintiff. This disparate treatment argument ultimately fails, however, because the
officers who the plaintiff references are not similarly situated to him. To establish that a
comparator is similarly situated for purposes of proving disparate treatment, the plaintiff
must show that he and the comparator were charged with "offenses of 'comparable
seriousness,'" Holbrookv. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999), and that "all of the
relevant aspects of [his] employment situation were 'nearly identical ", to the comparator's
employment situation, Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514
(D.C. Cir. 1995). Unfortunately, he didn't.
The plaintiff points first to Officer Peyton who received a five-day suspension for
violating CTF's segregation management policy by entering an inmate's cell without
securing the inmate and without notifying a supervisor, which ultimately resulted in a
physical altercation. (PI. Opp., Ex. E [#35-5] at DEF 0389). The plaintiff claims that
Officer Peyton committed a more serious infraction, yet he only received suspension, not
termination. (PI. Opp. [#36-1] at 33). Specifically, the plaintiff contends that Officer
unfair, but the plaintiff has provided no evidence at all that it was motivated by his
employer's discriminatory intent, and that is the question that the Court must answer.");
Agugliaro v. Brooks Bros., Inc., 927 F. Supp. 741,747 (S.D.N.Y. 1996) ("Even assuming
defendants were wrong in their belief that plaintiff had engaged in sexual misconduct, what
is significant is that they based their decision to dismiss plaintiff on that belief, and not on
his age, gender, or pension status."); Grier v. Casey, 643 F. Supp. 298, 308 (W.D.N.C.
1986) ("The law is clear that an employer's reason for his action may be a good reason, a
bad reason, a mistaken reason, or no reason at all, as long as the decision was not based on
race and/or sex or other unlawful discriminatory criteria.").
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Peyton deliberately violated CTF policy; whereas, the plaintiff s infraction was
unintentional-the result of a malfunctioning lock. (Id.). Even assuming that the defendant
was mistaken in believing that the plaintiff knowingly violated CTF policy, or worse yet,
assuming that the defendant intentionally rigged the outcome of the investigation, the
plaintiff and Officer Peyton are not similarly situated because Officer Peyton, unlike the
plaintiff, was not involved in more than one physical altercation. Because no one can know
how the defendant would have treated Officer Peyton if he had been the target of a second
investigation involving a violent incident at CTF, there is no basis for concluding that the
defendant treated Officer Peyton any more leniently than the plaintiff. Indeed, the
defendant treated them quite similarly: Like the plaintiff, Officer Peyton was suspended
after his first infraction involving a physical altercation. (PI. Opp., Ex. E [#35-5] at DEF
0389). It is also worth noting that the defendant ultimately fired Officer Peyton for the
seemingly lesser offense of failing to provide documentation supporting his use of
bereavement leave. (PI. Opp., Ex. E [#35-5] at DEF 0390). On these facts, a reasonable
juror could not find disparate treatment sufficient to support an inference of unlawful
discriminatory intent.
The plaintiff turns next to Officer McDade who was neither suspended nor
terminated for his involvement in an altercation with an inmate who attempted to escape
from an unsecured cell. (PI. Opp., Ex. G [#35-7] at DEF 0373). When Officer McDade
suspected that an inmate's cell was unlocked, he asked for assistance from another officer
and then proceeded to check the cell. (Id.). When the inmate tried to force his way out, the
two officers pushed him back in and secured the door. (Id.). The plaintiff contends that this
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incident was similar to his, yet Officer McDade was not discharged. (PI. Opp. [#36-1] at
33). Furthermore, the plaintiff claims that this event was the second time Officer McDade
had been involved in a serious incident that endangered him or others. (Id. at 34). Earlier,
he had been suspended for inadvertently discharging his firearm in a van while transporting
inmates. (See PI. Opp., Ex. H [#35-8] at DEF 0379). In response, the defendant explains
that Officer McDade was not disciplined-nor should he have been disciplined-for the
first incident because he acted properly under the circumstances by identifying the
unsecured cell, by calling for assistance, and then by taking action to secure the inmate in
the cell. (Figueroa Second Decl. [#37-3] ~ 8). Thus, because Officer McDade has had only
one serious infraction (the accidental firearm discharge), the defendant contends that he is
not a proper comparator. I agree that Officer McDade's conduct is not sufficiently similar
to the plaintiffs conduct to form an adequate basis for comparing the defendant's treatment
of the two officers. Even if! were to accept the plaintiffs account that the lock was broken
and that the defendant's finding to the contrary was erroneous, the plaintiffs conduct was
nevertheless substantially different than Officer McDade's conduct. In his declaration, the
plaintiff states that he knew the lock was broken and that he requested back-up assistance as
a result. (Marcelus Decl. [#35-3] '19). He then notes that the back-up officer did not arrive
until after the altercation had occurred. (Id.). If so, then the plaintiff must have failed to
confirm that the lock had been secured and that back-up was on site before removing the
inmate who caused the fight from his cell. Unlike the plaintiff, however, Officer McDade
took immediate action to investigate the unsecured cell with the assistance of another
officer, and in doing so, he managed to keep the inmate from escaping. Given that the two
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officers responded differently when confronted with the problem of an unsecured cell, the
defendant had good reason for treating them differently.
In any event, even if Officer McDade was similarly situated with respect to the
plaintiff yet was treated more favorably, a single incident of disparate treatment cannot by
itself suffice to convince a reasonable trier of fact that the defendant discriminated on an
unlawful basis. "[T]o hold otherwise would be to permit the inference of discrimination
anytime a single member of a non-protected group was allegedly treated more favorably
than one member of the protected group, regardless of how many other members of the non-
protected group were treated equally or less favorably." Simpson v. Kay Jewelers, 142 F.3d
639, 646 (3d Cir. 1998). One instance of disparate treatment hardly constitutes a pattern
that would justify an inference of intentional discrimination, especially where the plaintiff
offers no other evidence that the decision-makers in this case-the assistant chief and the
warden-have ever harbored any discriminatory animus toward persons of Haitian descent
or toward older persons. Although the plaintiff has alleged that certain co-workers and
supervisors called him derogatory names like "Haiti-Man" and "Voodoo Man," (Compi.
[#1] ~~ 1, 10-13; Am. Compi. [#15] ~~ 1, 10-13), he cites no evidence, nor even makes an
allegation, attributing those disparaging words to the actual decision-makers, (see Marcelus
Decl. [#35-3] ~ 5). Indeed, the plaintiff even testified in his deposition that he had no reason
to think that the assistant chief conducted the investigation in bad faith. (Marcelus Dep.
[#28-4] at 46). Nor could the plaintiff recall a single instance that would indicate that the
warden disliked him or was "out to get" him. (Jd. at 76). Furthermore, the plaintiffs claim
of discriminatory animus is undermined by the simple fact that the defendant hired him in
12
the first place. "From the standpoint of the putative discriminator, it hardly makes sense to
hire workers from a group one dislikes ... , only to fire them once they are on the job."
Proud v. Stone, 945 F .2d 796, 797 (4th Cir. 1991) (internal quotation marks omitted). In
short, the plaintiffs evidentiary proffer-even when viewed in the light most favorable to
the plaintiff-is not sufficient to overcome the summary judgment bar.
CONCLUSION
Because this case is devoid of evidence that would convince a reasonable jury that
the defendant terminated the plaintiffs employment on account of his Haitian descent or his
age, the defendant is entitled to judgment as a matter of law. Accordingly, the Court
GRANTS the defendant's Motion for Summary Judgment. An Order consistent with this
decision accompanies this Memorandum Opinion.
United States District Judge
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