Blackmon v. Winter

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
BIRTER F. BLACKMON, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1415 (EGS)
)
TIMOTHY COX, )
CHIEF OPERATING OFFICER, )
ARMED FORCES RETIREMENT HOME, )
)
1
Defendant. )
)
______________________________)

MEMORANDUM OPINION

Plaintiff Birter Blackmon, proceeding pro se, is an

African-American female, and a licensed practical nurse and wound

care specialist. Plaintiff was terminated by her former

employer, Armed Forces Retirement Home (“AFRH”), after a resident

in her care developed maggots in a wound on his lower left leg.

Plaintiff brings this action against defendant alleging race

discrimination and retaliation in violation of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. Pending before the Court

1
In her complaint, plaintiff named Donald C. Winter,
Secretary of the Navy, as defendant in this action. Defendant
states in its motion and reply brief that the Final Agency
Decision that informed plaintiff of her right to sue had
“mistakenly indicated that the proper defendant was the Secretary
of the Navy.” Def.’s Mot. at 1 n.1; Def.’s Reply Br. at 1 n.1.
Defendant asserts that “[t]he proper defendant is Timothy Cox,
Chief Operating Officer, Armed Forces Retirement Home.” Id.
Accordingly, based on these representations, the Court has
substituted Timothy Cox, Chief Operating Officer, Armed Forces
Retirement Home for Donald C. Winter, Secretary of the Navy as
defendant in this action.
is Defendant’s Motion to Dismiss or, In the Alternative, Motion

for Summary Judgment. Upon consideration of the motion, the

response and reply thereto, the applicable law, the entire

record, and for the reasons stated below, the Court GRANTS

defendant’s motion to dismiss as to plaintiff’s retaliation claim

and GRANTS defendant’s motion for summary judgment as to

plaintiff’s discrimination claim.

I. BACKGROUND 2

On January 23, 2006, plaintiff received a career-

conditional appointment as a nurse with the AFRH in Washington,

D.C. The AFRH provides residences and related services to

retired former members of the Armed Services. Plaintiff’s

career-conditional appointment was subject to completion of a

one-year probationary period. As a nurse at the AFRH,

2
As a preliminary matter, plaintiff’s opposition brief failed
to comply with Local Civil Rule 7(h), as it did not include a
separate concise statement of genuine issues setting forth all
material facts as to which she contends there is a genuine issue
necessary to be litigated. While plaintiff was not notified of
this specific requirement, she was informed that “any factual
assertions contained in the affidavits and other attachments in
support of Defendant’s motion will be accepted by the Court as
true unless Plaintiff submits her own affidavits of other
documentary evidence contradicting the assertions in Defendant’s
attachments.” Def.’s Mot. at 2; see generally Def.’s Mot. at 1-2
(advising the pro se litigant of her responsibilities in
responding to the motion and discussing Fox v. Strickland, 837
F.2d 507 (D.C. Cir. 1988) and Neal v. Kelly, 963 F.2d 453 (D.C.
Cir. 1992)). Because plaintiff failed to submit any contrary
evidence, the Court accepts as true the factual assertions
contained in defendant’s affidavits and documentary evidence.

2
plaintiff’s major duties included “performing nursing assignments

of a highly specialized nature to include medication

administration and hands on nursing care; identifying patient

problems and providing input into the plan of care; recognizing

changes in patient’s condition; and communicating responses

and/or changes to others to include all personnel, physicians and

members of multidisciplinary teams.” Def.’s Statement of Mat.

Facts (“Def.’s Facts”) ¶ 5 (quoting from Ex. E, Blackmon’s

Position Description).

In addition to her general patient care duties, the AFRH

assigned plaintiff to serve as the “primary care nurse” for

approximately five residents at any given time. As a resident’s

primary care nurse, plaintiff’s responsibilities included

ensuring that the paperwork for her assigned residents was

complete and accurate, preparing and updating patient care plans,

reviewing medication activity records, and preparing a monthly

summary based in part on her review of records in residents’

charts that indicated what had transpired that month. Def.’s Ex.

M, Dep. of Birter Blackmon (“Blackmon Dep.”) at 42, 49-51, 221,

351.

In July 2006, plaintiff was assigned as the primary care

nurse for an 80-year-old resident at the AFRH who had a

documented history of chronic ulcers (wounds) on his lower legs.

Def.’s Facts ¶¶ 6-7. The resident had a longstanding order that

3
the wounds on his lower extremities were to be cleaned with a

wound cleanser and that hydrogel and dry sterile dressings were

to be placed on his wounds “daily.” See Def.’s Ex. G, Aff. of

Elizabeth Weathington (“Weathington Aff.”) at 2. Despite these

specific instructions, the resident’s wounds were not cleaned

most days that plaintiff was assigned as his primary care nurse.

See Def.’s Ex. R, Concurrent Review Sheets (documenting that the

resident’s wounds were cleaned infrequently in July 2006, and

were not cleaned at any point between August 1, 2006 and August

13, 2006). On August 13, 2006, approximately fifty maggots were

found inside the resident’s wounds and the resident was

transported to the emergency room where his leg was markedly

swollen. Def.’s Facts ¶¶ 8-9.

After an investigation into the incident, the AFRH

terminated plaintiff and seven other nurses who were involved in

the care of the resident. Def.’s Facts ¶ 10. The AFRH

disciplined eleven employees in total due to the incident. The

terminated and/or disciplined employees were of various races and

backgrounds. Def.’s Facts ¶ 11; see infra n.8. Plaintiff,

however, was the only probationary employee involved in the care

of the resident. Def.’s Facts ¶ 12; Blackmon Dep. at 127.

Robert Palmer, Human Resource Specialist, recommended to the

Agency that plaintiff be removed during her probationary period

4
in accordance with 5 C.F.R. § 315.804,3 and drafted a Notice of

Termination During Probationary Period for the Agency’s

consideration. See Def.’s Ex. J, Aff. of Robert Palmer (“Palmer

Aff.”) at 2-4. On August 22, 2006, before the completion of

plaintiff’s probationary period, the AFRH issued a Notice of

Termination to plaintiff, which became effective on August 28,

2006. Def.’s Facts ¶ 13.

On August 28, 2006, plaintiff made her initial contact with

an Equal Employment Opportunity (“EEO”) Counselor. Def.’s Facts

¶ 14. The EEO Counselor conducted an initial investigation and,

on November 21, 2006, plaintiff was sent a Notice of Right to

File Action. See Def.’s Ex. Y. On December 4, 2006, plaintiff

filed a Formal Complaint of Discrimination (“Formal Complaint”)

with the Agency’s EEO Counselor alleging that the AFRH

discriminated against her based on her race. See Def.’s Ex. V.

On December 20, 2006, plaintiff was informed that her complaint

was accepted for investigation. See Def.’s Ex. X. After the

3
5 C.F.R. § 315.804, which governs termination of
probationers for unsatisfactory performance or conduct, states,
in relevant part: “[W]hen an agency decides to terminate an
employee serving a probationary or trial period because his work
performance or conduct during this period fails to demonstrate
his fitness or his qualifications for continued employment, it
shall terminate his services by notifying him in writing as to
why he is being separated and the effective date of the action.
The information in the notice as to why the employee is being
terminated shall, as a minimum, consist of the agency’s
conclusions as to the inadequacies of his performance or
conduct.”

5
investigation was complete, plaintiff was provided with a copy of

her investigative file and given the opportunity to request a

Final Agency Decision or a hearing and decision by the Equal

Employment Opportunity Commission (“EEOC”). See Def.’s Ex. A.

Plaintiff requested a hearing before the EEOC, and on August 24,

2007, her case was assigned to an EEOC administrative judge. See

Def.’s Ex. Z. Plaintiff’s complaint was subsequently dismissed

from the hearing process, however, due to plaintiff’s failure to

comply with the administrative judge’s orders. See Def.’s Ex.

BB. Her complaint was remanded for a Final Agency Decision.

On April 18, 2009, plaintiff received a Final Agency Decision

from the Naval Office of EEO Complaints Management and

Adjudication, concluding that plaintiff had not been

discriminated against as alleged. See Def.’s Ex. A. The Final

Agency Decision informed plaintiff of her right to file a lawsuit

in the appropriate United States District Court.

On July 15, 2008, plaintiff, pro se, filed her complaint in

the Superior Court of the District of Columbia (“D.C. Superior

Court”). On August 8, 2008, the United States Attorney’s Office

(“USAO”) received notice of the complaint, and on August 20,

2008, the USAO removed the matter to this Court. Defendant filed

its Motion to Dismiss, or in the Alternative, for Summary

Judgment on October 24, 2008. That motion is now ripe for

determination.

6
II. STANDARD OF REVIEW

The Court should grant a motion to dismiss brought pursuant

to Fed. R. Civ. P. 12(b)(6) if plaintiff, in his or her pleading,

fails to present “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) (clarifying the standard set forth in Conley v.

Gibson, 355 U.S. 41 (1957)); Kowal v. MCI Communc’ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994) (noting that a court must

construe the complaint “liberally in the plaintiff’s favor” and

“grant plaintiffs the benefit of all inferences that can be

derived from the facts alleged”). On such a motion, a court

construes a pro se complaint liberally. Haines v. Kerner, 404

U.S. 519, 520 (1972). A court need not, however, “accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set out in the complaint. Nor must [a] court accept

legal conclusions cast in the form of factual allegations.”

Kowal, 16 F.3d at 1276. To survive a motion to dismiss, the

factual allegations in the complaint “must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S.

at 545. In deciding a motion to dismiss under Rule 12(b)(6), a

court may consider only “the facts alleged in the complaint,

documents attached as exhibits or incorporated by reference in

the complaint, and matters about which the Court may take

7
judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191,

196 (D.D.C. 2002).

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,

the Court should grant summary judgment 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(c); Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986); Waterhouse v. Dist. Of Columbia, 298 F. 3d 989,

991 (D.C. Cir. 2002). The party seeking summary judgment bears

the initial burden of demonstrating the absence of a genuine

dispute of material fact. See Celotex, 477 U.S. at 323. In

determining whether a genuine issue of material fact 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, 587 (1986). The non-moving party’s

opposition must consist of more than mere unsupported allegations

of denials and must be supported by affidavits or other competent

evidence setting forth specific facts showing that there is a

genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S.

at 324. To survive a motion for summary judgment, plaintiff

cannot merely rely on the unsupported allegations of the

complaint, and must present more than the “mere existence of a

scintilla of evidence” in her favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986). If the non-moving party fails to

8
make a sufficient showing on an essential element of its case

with respect to which it has the burden of proof, the moving

party is entitled to a judgment as a matter of law. See Celotex,

477 U.S. at 322.

III. DISCUSSION

A. Plaintiff’s Filing in D.C. Superior Court

Defendant first argues that plaintiff’s complaint should be

dismissed because “by bringing her claim in the [D.C.] Superior

Court, Plaintiff has brought her claim in the wrong court.” See

Def.’s Br. at 16-19. Defendant argues, among other things, that

by bringing her lawsuit in the “wrong” court, plaintiff’s action

was not timely filed because the action did not lie in a court

with subject matter jurisdiction within Title VII’s requisite

ninety days. See Def.’s Br. at 19-20 (“Here, plaintiff’s failure

to file the instant action in this Court within the applicable

statue of limitations renders her Complaint flawed, warranting

its dismissal.”). The Court finds defendant’s argument

unpersuasive.

In Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820

(1990), the Supreme Court held that state and federal courts have

concurrent jurisdiction over Title VII cases. See id. at 821

(examining “whether federal courts have exclusive jurisdiction

over civil actions brought under Title VII of the Civil Rights

Act of 1964” and “conclud[ing] that Congress did not divest the

9
state courts of their concurrent authority to adjudicate federal

claims”). The D.C. Superior Court therefore has concurrent

jurisdiction over Title VII civil actions such as the one filed

by plaintiff. See, e.g., Carter-Obayuwana v. Howard Univ., 764

A.2d 779, 786 n.16 (D.C. 2001) (reviewing a Title VII case and

noting at the outset that “[s]tate courts have concurrent

jurisdiction with federal courts over civil actions brought

pursuant to Title VII”).

Accordingly, the Court rejects defendant’s argument that

plaintiff filed her lawsuit in the “wrong” court. Because

plaintiff filed her lawsuit in D.C. Superior Court within the

requisite ninety days, the Court concludes that plaintiff’s suit

was timely filed. See Ikossi v. Dep't of Navy, 516 F.3d 1037,

1044 (D.C. Cir. 2008) (“To be timely, she was required within

ninety days of the EEO dismissal of her complaint either to

appeal to the EEOC or to file a civil suit.” (citing 42 U.S.C. §

2000e-16(c)).

B. Failure to Cooperate in the Administrative Process

Defendant also asserts that plaintiff’s lawsuit should be

dismissed because plaintiff failed to cooperate in the

administrative process.4 In support of this argument, defendant

4
While motions to dismiss for failure to exhaust Title VII
administrative remedies are normally resolved as motions to
dismiss for failure to state a claim under Rule 12(b)(6), see
Marcelus v. Corr. Corp. of America, 540 F. Supp. 2d 231, 234
(D.D.C. 2008), in this case, plaintiff’s complaint did not attach

10
points to plaintiff’s failure to prosecute her case before an

EEOC administrative judge. The undisputed facts are as follows.

On December 4, 2006, plaintiff filed a Formal Complaint of

Discrimination alleging that defendant discriminated against her

based on race with the Agency’s EEO Counselor. See Def.’s Ex. V.

On December 20, 2006, plaintiff was informed that her complaint

was accepted for investigation by the Department of Defense,

Investigations and Resolutions Division. See Def.’s Ex. X. Upon

conclusion of the investigation, plaintiff was provided with a

copy of her investigative file and advised of her right to

request a Final Agency Decision or a hearing and decision by the

EEOC. See Def.’s Ex. A (“You were provided a copy of the

Investigative File and advised of your right to request a Final

Agency Decision (FAD) by the Secretary of the Navy, or a hearing

and decision by the Equal Employment Opportunity Commission.”).

On July 31, 2007, plaintiff requested a hearing before an

EEOC administrative judge. See Def.’s Ex. Z (Acknowledgment and

Order regarding plaintiff’s request for a hearing). Due to

plaintiff’s repeated failures to participate in the discovery

process and to respond to the Administrative Court’s orders, the

or reference the relevant Agency documents. Cf. id. at 235 n.5
(treating an EEOC charge as incorporated in the complaint because
it was referenced therein). Because the Court must look outside
the pleadings to resolve the exhaustion issues presented in this
case, the Court will consider plaintiff’s failure to exhaust her
Title VII administrative remedies under the summary judgment
standard.

11
administrative judge dismissed plaintiff’s complaint from the

hearing process and remanded the case to the Agency for a Final

Agency Decision. See Def.’s Ex. BB (“I DISMISS this Complaint

from the hearings process pursuant to 29 C.F.R. §§ 1614.109(b)

and 1614.109(f)(3)(v), and REMAND the case to the Agency so that

the Agency may issue a Final Agency Decision pursuant to 29

C.F.R. § 1614.110.”); Def.’s Ex. A (“On February 19, 2008, EEOC

dismissed your request [for a hearing], based on your failure to

comply with the Administrative Judge’s orders, and remanded your

complaint to this Office for a FAD.”).

Defendant argues that because Plaintiff failed to fully

cooperate in the administrative hearing process, her subsequent

civil action was improper as she failed to exhaust her

administrative remedies prior to filing suit. See Smith v.

Koplan, 362 F. Supp. 2d 266, 268 (D.D.C. 2005) (“Courts equate

cases of failing to cooperate with the agency as cases where a

plaintiff has failed to exhaust her administrative remedies.”).

While it is undoubtedly true that claimants have an

“obligation of good faith participation in the administrative

process prior to bringing a civil action,” Def.’s Br. at 24, “[a]

complainant may be barred from filing suit for failure to exhaust

only ‘[i]f a complainant forces an agency to dismiss or cancel

the complaint by failing to provide the agency sufficient

information to investigate the claim.’” Brown v. Tomlinson, 462

12
F. Supp. 2d 16, 21 (D.D.C. 2006) (quoting Wilson v. Pena, 79 F.3d

154, 164 (D.C. Cir. 1996)). In this case, although complainant’s

request for a hearing was dismissed due to her failure to

prosecute and comply with the Administrative Court’s orders, the

Agency was not forced to dismiss or cancel the complaint. In

fact, after the hearing was dismissed and the case was remanded,

the Agency issued a lengthy Final Agency Decision - including a

seven-page “Analysis of the Case” – based on the record evidence.

See Def.’s Ex. A, Final Agency Decision (“The case record

concerning your complaint has been carefully reviewed. It is the

decision of this Office that you were not discriminated against

as alleged. The rationale for this decision is set forth in

enclosure (1), ‘Analysis of the Case.’”); see also Def.’s Ex. B

(report detailing the Agency’s investigation of plaintiff’s

complaint, including sworn interviews with plaintiff and her

supervisors). Because the Agency was able to take final action

on the merits, the Court declines to dismiss plaintiff’s suit for

failure to cooperate with the administrative process. See, e.g.,

Wilson, 79 F.3d at 165 (“Where the agency has taken final action

based on an evaluation of the merits, it cannot later contend

that the complainant failed to exhaust [her] remedies.”).

C. Retaliation Claim

Next, defendant argues that plaintiff’s retaliation claim

should be dismissed. Assuming that the Agency had adequate

13
notice of plaintiff’s retaliation claim,5 plaintiff has failed to

state a claim for retaliation. “To establish a prima facie case

of retaliation, a claimant must show that (1) she engaged in a

statutorily protected activity; (2) she suffered a materially

adverse action by her employer; and (3) a causal connection

existed between the two.” Wiley v. Glassman, 511 F.3d 151, 155

(D.C. Cir. 2007). While Title VII plaintiffs need not plead each

element of a prima facie case to survive a motion to dismiss,

5
Defendant also argues that plaintiff’s retaliation claim
should be dismissed for failure to exhaust her administrative
remedies, asserting that plaintiff failed to raise her
retaliation claim prior to filing suit in D.C. Superior Court.
While it is true that plaintiff failed to list retaliation in her
Formal Complaint, the evidence indicates that the Agency was
aware of plaintiff’s “retaliation claim.” See Def.’s Ex. DD, EEO
Counselor’s Report (“Ms. Blackmon believes she was targeted for
termination following a series of issues she brought to the
attention of management officials about discrepancies in medical
care, problems within the nursing staff, and improvements needed
in the physical working conditions of the health care
facility.”); Def.’s Ex. B, Agency Report of Investigation at 4
(“Complainant adds that she believes she was retaliated against
for reporting her co-workers for sleeping on the job and for
complaining too much about the conditions for the residents.”);
Def.’s Ex. C, Aff. of Birter Blackmon at 4 (“Blackmon Aff.”)
(“There were a lot of things going on and I was being retaliated
against that I reported things that were wrong. I reported one
person for sleeping and there was a big issue because of that. I
also gave Ms. Terrell a warning for sleeping. . . . I also
believe that I was terminated for complaining too much about the
conditions for the residents and about the conduct of other
employees.”). Given the “significant leeway” afforded Title VII
plaintiffs, Cheek v. Western & S. Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994), the Court will assume without deciding that the
Agency was given sufficient notice of plaintiff’s retaliation
claim through plaintiff’s sworn statement to the Agency regarding
retaliation and the Agency’s own investigation report.

14
they must allege facts that, if true, would establish the

elements of the claim. Robinson-Reeder v. Am. Council on Educ.,

532 F. Supp. 2d 6, 14 (D.D.C. 2008). In particular, plaintiff

must allege facts demonstrating her engagement in the opposition

of a Title VII violation or her participation in an investigation

of such a violation. See 42 U.S.C. § 2000e-3(a)(“It shall be an

unlawful employment practice for an employer to discriminate

against any of his employees . . . because he has opposed any

practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this subchapter.”). In this case, plaintiff’s

complaint states only that she was discriminated against based on

“reprisal.” See generally Compl. ¶ 1. Plaintiff does not

identify any statutorily protected activity that she participated

in nor does she allege that her participation in such an activity

led to her termination. Plaintiff’s bare assertion of “reprisal”

is insufficient to satisfy even the most liberal pleading

standard. See Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir.

2006) (“[I]n order to survive a motion to dismiss, ‘all [the]

complaint has to say,’ is ‘the Government retaliated against me

because I engaged in protected activity.’” (quoting Sparrow v.

United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000))

(internal citations omitted)). Accordingly, the Court finds that

15
plaintiff failed to state a claim for retaliation and GRANTS

defendant’s motion to dismiss as to this claim.

D. DISCRIMINATION CLAIM

Plaintiff also alleges that she was “discriminated against,

based on [her] race (African American).” Compl. at ¶ 1. Title

VII makes it unlawful for a federal government employer to

discriminate based on race. 42 U.S.C. § 2000e-16(a). In cases

such as this one, where “a plaintiff produces no direct evidence

of discrimination, [the Court] analyze[s] a Title VII claim under

the familiar burden-shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), initially placing the burden on

the plaintiff to establish a prima facie case of discrimination; 6

shifting it to the defendant employer to articulate some

legitimate, non-discriminatory reason for the employment action;

and shifting it back to the plaintiff to prove by a preponderance

of the evidence that the proffered reasons are a pretext for

discrimination.” Mastro v. Potomac Elec. Power Co., 447 F.3d

843, 850 (D.C. Cir. 2006) (internal quotations and citations

omitted). “‘The ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the

6
The elements of a prima facie case of discrimination are as
follows: (1) plaintiff is a member of a protected class; (2)
plaintiff has suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.
See Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007);
Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002).

16
plaintiff remains at all times with the plaintiff.’” Thompson v.

Dist. of Columbia, 573 F. Supp. 2d 64, 68 (D.D.C. 2008) (quoting

Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C.

Cir. 2003))).

Defendant argues that summary judgment is appropriate

because it produced a legitimate non-discriminatory reason for

its actions, which plaintiff has failed to rebut. Specifically,

defendant argues that plaintiff – a probationary employee - was

terminated after an investigation by defendant revealed that a

resident in plaintiff’s care developed maggots in a wound due to

negligent medical care. See Def.’s Ex. I, Aff. of Linda Rader

(“Rader Aff.”), AFRH Administrator (“I made the decision to

terminate [plaintiff’s] employment with the AFRH. . . . She was

terminated because, when you find a resident in a controlled

environment with maggots, it tells me no one looked at him or

assessed him and he was ignored. It was so egregious that it

cannot be tolerated.”); Def.’s Ex. G, Weathington Aff., AFRH

Director of Nursing (discussing the “incident of a resident who

had maggots in his wound,” and then stating that “[plaintiff] was

terminated because she was negligent in the care of this

resident”); see also Def.’s Ex. K, Letter of Termination (“This

memorandum constitutes a notice of termination during your

probationary period. Your termination is based upon your

negligence in performing the duties of your position. As you

17
know, recently a resident in the [AFRH], under your primary care,

developed maggots in his wounds as a direct result of your

negligence to perform the duties of your position. . . . Your

poor performance in this instance is completely unacceptable.”).

Because defendant put forth a legitimate, non-discriminatory

reason for plaintiff’s termination, this Court need not determine

whether plaintiff established a prima facie case. See Brady v.

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

2008) (“In a Title VII disparate-treatment suit where an employee

has suffered an adverse employment action and an employer has

asserted a legitimate, non-discriminatory reason for the

decision, the district court need not - and should not - decide

whether the plaintiff actually made out a prima facie case under

McDonnell Douglas.”). Accordingly, the only remaining issue

before the Court is whether “[plaintiff] 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. When determining whether summary judgment is

warranted for the employer, the Court considers all relevant

evidence presented by the plaintiff and the defendant. Id.

Plaintiff argues that defendant’s stated reason for her

termination was pretextual because (I) she was “terminated for

18
alleged untrue reasons” and (ii) she was “treated less favorably

than similarly situated, non-African American nurses involved in

[the] patient negligence case.” See Compl. at ¶ 1. The Court

will address both of these arguments in turn.

Plaintiff’s first argument – that she was terminated for

“untrue reasons” – is based on plaintiff’s assertion that she did

not engage in “any direct negligent behavior.” Aff. of Birter

Blackmon at 3. While an employee may demonstrate pretext by

“demonstrat[ing] that the employer is making up or lying about

the underlying facts that formed the predicate for the employment

decision,” “[i]f the employer’s stated belief about the

underlying facts is reasonable in light of the evidence . . .

there ordinarily is no basis for permitting a jury to conclude

that the employer is lying about the underlying facts.” See,

e.g., Brady, 520 F.3d at 495. In this case, defendant conducted

a thorough investigation of the incident, which led to the

termination of seven employees, including plaintiff, and the

discipline of four others. See infra n.8 (discussing the other

personnel who were terminated as a result of the incident).

Defendant put forth sworn declarations and other documentary

evidence regarding plaintiff’s role in the care of the resident

who developed maggots in his wounds, including that: plaintiff

was a certified wound care specialist with nineteen years of

nursing experience, Pl.’s Dep. at 272; plaintiff was the

19
resident’s primary care nurse, charged with reviewing the

resident’s medical records each night, Pl.’s Dep. at 41-42, 86-

87; plaintiff made nightly rounds to the resident’s room to see

if he was getting the care provided, Pl.’s Dep. at 282; plaintiff

knew that the resident’s orders required daily wound care, Pl.’s

Dep. at 76, 340-41; plaintiff never examined the resident’s

wounds or dressing during the time she was the resident’s primary

care nurse, Pl.’s Dep. at 105, 273; plaintiff knew or could have

determined from a review of the resident’s records that he was

not getting the baths and “skin audits” that he was supposed to

be getting, Pl.’s Dep. at 86-87; and plaintiff was aware that

serious problems could develop if wounds were not properly

treated, Pl.’s Dep. at 273-74. Accordingly, in light of the

undisputed factual record in this case, plaintiff’s vague,

unsubstantiated allegation that she was terminated for “untrue

reasons” does not create a genuine issue of material fact

sufficient to withstand summary judgment. See Ginger v. District

of Columbia, 527 F.3d 1340, 1347 (D.C. Cir. 2008) (“‘[A] mere

unsubstantiated allegation . . . creates no genuine issue of fact

and will not withstand summary judgment.’” (quoting Harding v.

Gray, 9 F.3d 150, 154 (D.C. Cir. 1993))).

Plaintiff’s next argument is that she was treated “less

favorable than similarly situated, non-African American nurses.”

Compl. at ¶ 1. Specifically, plaintiff argues that “other staff

20
of different nationality but with the same status as [herself]”

were allowed to participate in the investigation of the incident

and/or were given the option to resign or retire, while she was

not. Pl.’s Opp’n Br. ¶ 14.7 The Court finds this argument

misplaced, however, because none of the employees to whom

plaintiff seeks to compare herself were similarly-situated.

Specifically, plaintiff was the only probationary employee

involved in the care of the resident. Def.’s Facts ¶ 12;

Blackmon Dep. at 127. As a matter of law, probationary and non-

probationary federal employees are not similarly situated because

they are subject to different rules with respect to discipline as

well as other aspects of employment. See, e.g., McMillan v.

Bair, 304 Fed. Appx. 876, 877 (D.C. Cir. 2008) (“[Plaintiff]’s

only asserted evidence of pretext fails because probationary

trainees are not similarly situated to permanent employees for

purposes of Title VII when an employer decides to retain or

dismiss the probationary employee.”); Holbrook v. Reno, 196 F.3d

255, 262 (D.C. Cir. 1999) (explaining that in McKenna v.

Weinberger, 729 F.2d 783 (D.C. Cir. 1984), the Circuit “expressly

7
The other nurses and aides who were terminated for the
incident were: F.T.(Black/Carribean), resigned before proposed
termination; H.S.(White), resigned after proposed termination;
H.O.(African-American), retired before proposed termination;
I.V.(Hispanic/White), retired after proposed termination; P.A.
(African-American), retired before proposed termination; T.A.
(Black/Unknown National Origin), resigned before proposed
termination. See Ex. I, Rader Aff. at 3-4.

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held that a probationary employee was not similarly situated to a

permanent employee”). Plaintiff, therefore, has failed to

demonstrate that the reason she was treated differently than

other nurses involved in the investigation was based on race

discrimination. See Montgomery v. Chao, 546 F.3d 703, 707 (D.C.

Cir. 2008) (“In the absence of evidence that the comparators were

actually similarly situated to him, an inference of falsity or

discrimination is not reasonable.” (internal quotation marks

omitted)).

Plaintiff has adduced no additional evidence to support her

claim of race discrimination. Accordingly, the Court concludes

that plaintiff has failed to present evidence from which a

reasonable factfinder could conclude that defendant’s

non-discriminatory reason for plaintiff’s termination was pretext

for discrimination, and therefore GRANTS defendant’s motion for

summary judgment as to plaintiff’s discrimination claim.

IV. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss as

to plaintiff’s retaliation claim and motion for summary judgment

as to plaintiff’s discrimination claim are GRANTED. An

appropriate Order accompanies this Memorandum Opinion.

Signed: EMMET G. SULLIVAN
UNITES STATES DISTRICT JUDGE
September 25, 2009

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