Wilson v. Wmata

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
TAJ WILSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-2146 (GK)
)
WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY )
)
Defendant. )
)
______________________________)

MEMORANDUM OPINION

Plaintiff Taj Wilson ("Plaintiff") brings this action against

Defendant Washington Metropolitan Area Transit Authority

("Defendant" or “WMATA”), pursuant to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). He alleges

that Defendant violated Title VII on the grounds of Disparate

Treatment Based on Race and Color (Count I), Disparate Treatment

Based on Gender (Count II), Racially Hostile Work Environment

(Count III), and Retaliation (Count IV).

This case is now before the Court on Defendant's Motion for

Summary Judgment on Count I, Disparate Treatment Based on Race and

Color [Dkt. No. 77].1 Upon consideration of the Motion,

1
Plaintiff withdrew Counts II-IV on June 12, 2008 [Dkt. No. 86].
See Pl.'s 2d. Errata Opp’n to Def.'s Mot. for Summ. J. at 3 n.2.
Opposition, Reply, the entire record herein, and for the reasons

stated below, Defendant’s Motion is granted.

I. BACKGROUND 2

Plaintiff, an African-American male, began his employment as

a police officer with Defendant's Metro Transit Police Department

("MTPD") on January 14, 2002. He participated in field training

from September to December 2002, when he completed the field

training program. During this period, Plaintiff noted that a white

officer insisted on putting on gloves before touching him during a

drill, even though that officer touched white officers without

wearing gloves. Plaintiff also noted that white officers called

Anacostia "Animal Costia," that a white officer made racial slurs

and gang references to him and other black officers, and that Metro

Transit Police Chief Polly Hanson ("Chief Hanson") stated that

"people like [Plaintiff] in the department do not change." Def.'s

Statement of Material Facts ¶ 141.

During his employment with WMATA, Plaintiff was the subject of

five disciplinary investigations within a nine-month period.

First, on December 3, 2003, Plaintiff displayed his service weapon

during an off-duty altercation at a Wal-Mart store. He had stored

the weapon in his unlocked glove compartment and failed to identify

himself as a police officer during the altercation. Captain George
2
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties' Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h) and the
parties' summary judgment papers.

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Heilmann ("Heilmann") of MTPD's Office of Professional

Responsibility and Integrity investigated the incident and charged

Plaintiff with leaving his service weapon in his glove compartment,

displaying his service weapon and failing to wear it in his holster

while off duty, and failing to identify himself as a police

officer. Plaintiff was suspended for one day.

Second, on May 4, 2004, while driving his MTPD scout car,

Plaintiff was involved in an auto accident. He and another

motorist were injured in the accident, and the scout car sustained

$14,000 in damage. Sergeant Helen Acton investigated the collision

and found that it was preventable. Because of its preventability,

Plaintiff was suspended for one day.

Third, on June 13, 2004, Plaintiff was visiting a friend when

he intervened in an altercation, at which point "an unknown person

attempted to grab [his] service weapon." Id. ¶ 25. Heilmann

investigated the incident and recommended remedial weapons training

for Plaintiff.

Fourth, on June 18, 2004, while on duty, Plaintiff left his

"assigned sector" to address personal business. Id. ¶ 28. He did

so without alerting his supervisor or obtaining permission, and he

subsequently turned in an "inaccurate run sheet" (daily activity

log) for this period of time.3 Id. ¶¶ 30, 32-34.

3
Plaintiff asserted that he was away from his sector for 10-15
minutes, while the investigation found the duration of his absence
to be more than 60 minutes. Def.'s Statement of Material Facts ¶
41.

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 Heilmann investigated the incident and charged Plaintiff with

nine violations of MTPD General Orders4: (1) violation of oath of

office; (2) making false reports in an official daily activity log

with a prior history of doing so; (3) providing false information

to a dispatcher regarding his whereabouts while on duty; (4)

providing false information to Heilmann regarding his whereabouts

while on duty; (5) conducting activities on duty that were "not

related to the protection of WMATA customers, personnel, and

transit facilities" and failing to call local police at the scene

of a traffic accident; (6) failing to disclose his personal

involvement and that of his girlfriend in a traffic accident, which

endangered the officer responding to the accident; (7) leaving his

sector for more than an hour without the authorization or knowledge

of his supervisor or the Communications Division; (8) leaving his

beat for over an hour to attend to personal affairs; and (9)

leaving his sector for more than an hour without the permission of

his supervisor or the Communications Division in order to attend to

personal affairs. Id. ¶¶ 38-46. As punishment, Plaintiff was

suspended for eleven days. Def.'s Mot. for Summ. J. at 8.

Fifth, on August 15, 2004, Plaintiff lost control of his MTPD

scout car while responding to an incident. His car became airborne

4
These infractions are covered under General Order 217 "Ethical
Standards of Conduct and Financial Interest," General Order 105
"Authority and Jurisdiction," and General Order 215 "Duties and
Responsibilities." Def.'s Statement of Material Facts ¶¶ 39-46.

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and crashed into a residence. At the time of the accident, the

weather was clear, and the road was dry and unobstructed.

Plaintiff was found unconscious at the scene, and the vehicle's

airbag had deployed. Plaintiff later "estimated" his speed to have

been between 65 and 70 MPH at the time of the accident. Pl.'s

Resp. to Def.'s Statement of Material Facts ¶ 66. Both the car and

the residence were severely damaged, and the residence was

subsequently closed by county building inspectors. Def.’s

Statement of Material Facts ¶ 62.

The Prince George’s County Police Department investigated the

incident and found that "[P]laintiff was at fault for the

accident."5 Def.'s Statement of Material Facts ¶ 63. On October

5, 2004, Chief Hanson notified Plaintiff in writing that any

"future integrity issues" would result in his termination from

employment. Id. ¶ 47.

Lieutenant Shawn Doody ("Lt. Doody") conducted the internal

investigation, and, as a result, Plaintiff was charged with seven

5
Plaintiff asserts that "both the [Computer Voice Stress
Analysis] and data recorder were inconclusive regarding Plaintiff's
speed." Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 63.
Plaintiff further states that he "was responding to a 'Code One' in
which there are no speed restrictions." Id. ¶ 56. However,
Plaintiff does not dispute that the official investigation found
him to be at fault for the accident and to have been driving his
vehicle at a high speed "without regard to life and property" or
"due regard for safety." Def.'s Statement of Material Facts ¶¶ 63,
73-74.

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violations of MTPD General Orders6: (1) violation of oath of

office, (2) providing false statements during an investigation, (3)

providing a false written report, (4) responding untruthfully to

inquiries posed by an official, (5) operating a "scout car at a

high rate of speed and fail[ure] to maintain his lane without due

regard for safety," (6) operating "his scout car at a high rate

[of] speed without regard to life and property," and (7) "failing

to wear a seatbelt."7 Id. ¶¶ 69-75.

On November 12, 2004, as cumulative punishment for these

charges as well as for the "culmination of several incidents which

occurred over a short period of time," Plaintiff was terminated.

Id. ¶ 76. In arbitration, the Fraternal Order of Police/DCHA Labor

Committee upheld his termination on grounds of "just cause." 8

Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 77.

On April 8, 2005, following his termination, Plaintiff filed

a complaint with the Equal Employment Opportunity Commission

("EEOC"), alleging that he was subjected to racial discrimination

and retaliation between October 1, 2004 and November 12, 2004.

Def.'s Mem. in Support of its Mot. for Summ. J. at 13-14.

6
These infractions are covered under General Order 217 "Ethical
Standards of Conduct and Financial Interest" and General Order 306
"Emergency Vehicle Operations." Def.'s Statement of Material Facts
¶¶ 70-75.
7
Lt. Doody recommended termination as the punishment for four of
these charges. Def.'s Statement of Material Facts ¶¶ 69-72.
8
The hearing took place on June 2, 2005 in Washington, D.C.
before Stephen E. Alpern, arbitrator and chairman.

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Plaintiff did not include charges of gender discrimination or

racially hostile work environment in his EEOC complaint. Id. at

14. However, he observed that "he was [the] subject of intense

scrutiny with respect to disciplinary actions and punishments,

[and] that his entire class, white and black officers alike, were

subject to punishment" because he complained to MTPD officials

about the gloved officer incident during training. Def.'s

Statement of Material Facts ¶ 147 (citation omitted).

On November 11, 2005, Plaintiff filed his original Complaint

in this Court on counts of “Disparate Treatment Based on Race and

Color in Violation of Title VII & 1981" (Count I) and “Disparate

Treatment Based on Gender in Violation of Title VII” (Count II).

Compl. at 2, 3. He sought $300,000 for “compensatory damages,

backpay, interests [sic], [and] emotional distress” resulting from

the alleged Title VII violations as well as costs, expenses,

attorney’s fees, and an injunction against Defendant’s allegedly

discriminatory practices. Id. at 4: ¶¶ ii-iv.

On October 29, 2007, Plaintiff filed an Amended Complaint,

which added the count of “Racially Hostile Work Environment in

Violation of 1981” (Count III) [Dkt. No. 46]. Am. Compl. ¶¶ 22-29.

On December 18, 2007, Plaintiff filed a Second Amended Complaint,

which added a fourth count of Retaliation [Dkt. No. 57].9

9
The Second Amended Complaint also withdrew his claim of 42
U.S.C. § 1981 jurisdiction and corrected an error as to Plaintiff's
gender in ¶ 4.

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 On April 1, 2008, Defendant moved for Summary Judgment [Dkt.

No. 77]. On June 12, 2008, Plaintiff filed an Opposition, in which

he withdrew his claims of Gender Discrimination, Hostile Work

Environment, and Retaliation in Counts II, III, and IV [Dkt. No.

86].

II. STANDARD FOR SUMMARY JUDGMENT

Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United

States, 473 F.3d 329, 333 (D.C. Cir. 2006). In other words, the

moving party must satisfy two requirements: first, demonstrate that

there is no “genuine” factual dispute and, second, that if there

is, it is “material” to the case. “A dispute over a material fact

is ‘genuine’ if ‘the evidence is such that a reasonable jury could

return a verdict for the non-moving party.’” Arrington, 473 F.3d

at 333 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A fact is “material” if it might affect the outcome of

the case under the substantive governing law. Liberty Lobby, 477

U.S. at 248.

In its most recent discussion of summary judgment, in Scott v.

Harris, 550 U.S. 372, 380 (2007), the Supreme Court said,

[a]s we have emphasized, “[w]hen the moving party has
carried its burden under Rule 56(c), its opponent must do

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 more than simply show that there is some metaphysical
doubt as to the material facts.... Where the record
taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine
issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87... (1986) (footnote
omitted). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” [Liberty Lobby, 477 U.S. at 247-48.]

However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is

not... to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for

trial.” Liberty Lobby, 477 U.S. at 248, 249. In both Liberty

Lobby and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 150 (2000), the Supreme Court cautioned that “[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts, are jury functions, not

those of a judge” deciding a motion for summary judgment. Liberty

Lobby, 477 U.S. at 255. “To survive a motion for summary

judgment, the party bearing the burden of proof at trial... must

provide evidence showing that there is a triable issue as to an

element essential to that party’s claim. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).” Arrington, 473 F.3d at 335.

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III. DISPARATE TREATMENT BASED ON RACE AND COLOR UNDER TITLE VII

The key inquiry on a motion for summary judgment in a Title

VII case is whether the plaintiff has produced enough evidence for

a reasonable jury to find, by a preponderance of the evidence,

that the employer's legitimate, non-discriminatory justification

for the employee's termination is pretextual, and that the true

reason for the employee's termination was discriminatory. See

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

Cir. 2008); see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C.

Cir. 2009) (instructing courts to determine whether "all the

evidence, taken together, was insufficient to support a reasonable

inference of discrimination"). Although discrimination claims

under Title VII are typically analyzed under the McDonnell Douglas

framework, Brady excused courts, when ruling on a summary judgment

motion, from considering whether the plaintiff established a prima

facie case of discrimination. 520 F.3d at 493-94. Rather, once

the defendant has offered his justification, the burden shifts

back to the plaintiff to prove that it is pretextual. See Plummer

v. Bolger, 559 F. Supp. 324, 329 (D.D.C. 1983).

The court may rely on the totality of the evidence in

conducting this inquiry, including "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

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discrimination that may be available to the plaintiff, such as

independent evidence of discriminatory statements or attitudes on

the part of the employer." Holcomb v. Powell, 433 F.3d 889, 897

(D.C. Cir. 2006) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

1289 (D.C. Cir. 1998) (en banc)).

There are three possible ways for a plaintiff to show that

the employer's justification was pretextual and that her action

was discriminatory: (1) directly, by demonstrating that a

"discriminatory reason more likely motivated the employer," George

v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) (internal citations

and quotation marks omitted), (2) indirectly, by demonstrating

that the employer falsified the "underlying facts" that allegedly

justified the termination, Brady, 520 F.3d at 495, and (3)

indirectly, by demonstrating that a similarly situated employee

received more preferential treatment or less harsh punitive

measures. Id.

In evaluating the possibility of pretext, "[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." Id. See also Fischbach v. D.C. Dept. of

Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) ("the issue is

not the correctness or desirability of the reasons offered but

whether the employer honestly believes in the reasons it offers").

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The D.C. Circuit has time and again resisted serving as a "super-

personnel department" that double-checks hiring and firing

decisions made by a business or organization. Holcomb, 433 F.3d

at 897 (quoting Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir.

1999)).

A. Defendant Provided a Legitimate, Non-Discriminatory
Justification for Plaintiff's Termination

Defendant argues that it has established a legitimate, non-

discriminatory justification for Plaintiff's termination and that

Plaintiff's named comparators do not discredit this justification.

Def.'s Mem. in Support of its Mot. for Summ. J. at 16. Therefore,

it is unnecessary to decide whether Plaintiff has established a

prima facie case of discrimination. See Brady, 520 F.3d at 493-

94.

Plaintiff's disciplinary record for the short duration of his

employment with MTPD is an exceedingly serious one. The charges

against him consist of both ethical violations and instances of

very poor judgment involving his service weapon and service

vehicle. He was involved in five disciplinary incidents within a

nine month span prior to the August incident, and all of his

violations endangered either the public or a fellow officer.

Investigations of two of the violations uncovered further

wrongdoing in the form of Plaintiff’s deliberate falsehoods in

recounting his version of the incidents.

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 Therefore, under the Fischbach analysis, supra, a jury may

find that Defendant's act of terminating Plaintiff is reasonable

in light of Plaintiff's recurring disciplinary problems. Unless

Plaintiff establishes pretext or falsity of Defendant’s

justification, there is no ground on which a reasonable jury could

find discrimination by a preponderance of the evidence.

B. Plaintiff Has Not Proven that Defendant's Justification
for Plaintiff's Termination is Pretextual

Plaintiff denies that Defendant has provided a legitimate,

non-discriminatory justification for his termination. He argues

that even if, assuming arguendo, Defendant had made such a

showing, that justification would be "both dishonest and

unreasonable." Pl.'s 2d. Errata Opp’n to Def.'s Mot. for Summ. J.

at 5. Plaintiff considers Defendant's justification to be

pretextual on two grounds: first, that Plaintiff's "veracity" and

"integrity" have not been "impugned" by his disciplinary

violations, and second, that in comparison to allegedly similarly-

situated employees who were not terminated, Plaintiff was

terminated on the basis of race. Id. at 6.

1. Plaintiff Has Not Demonstrated that Defendant’s
Justification Is “Unreasonable” and “Dishonest.”

Plaintiff addresses each violation to demonstrate that his

veracity and integrity were not damaged by his disciplinary

record. This argument is patently wrong. As the basis for it, he

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appears to insinuate that, but for a complete undermining of his

veracity and integrity, his termination is discriminatory.

For example, in regard to the Wal-Mart incident on December

3, 2003, Plaintiff asserts that he "was not charged with any

violation that challenged his veracity or integrity related to the

incident."10 Id. at 7. However, Plaintiff was charged with a

violation of General Order 217 "Ethical Standards of Conduct and

Financial Interest" in connection with that incident. Def.'s

Statement of Material Facts ¶ 16. In regard to the June 13, 2004

incident, Plaintiff makes a series of observations but fails to

present any argument or conclusion. Plaintiff's strongest

observation is that "Defendant's motion acknowledges that

Hellman's [sic] observations rests [sic] upon, 'unverifiable

sources.'" Pl.'s 2d. Errata Opp’n to Def.'s Mot. for Summ. J. at

5. This is, at best, a mischaracterization of the cited portion

of Defendant's Motion for Summary Judgment, which clearly explains

that the only unverified information pertained specifically to the

identity of the person who tried to take Plaintiff’s gun. Def.'s

Mem. in Support of its Mot. for Summ. J. at 5 (stating that

unverified witnesses testified that Plaintiff’s girlfriend was the

person who attempted to take his service weapon).

10
Plaintiff fails to provide any citation for this assertion.

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 Plaintiff does not deny his involvement in any of the

incidents for which he was disciplined but instead challenges the
1
degree to which they damaged his value as an employee of MTPD. 1

Given the fact that the charges against him were the result of

formal, departmental investigations and that a union arbitrator,

Stephen E. Alpern, upheld his termination without questioning the

accuracy of his disciplinary record, Defendant was more than

reasonable in believing the charges to be accurate.

In short, Plaintiff argues that his veracity and integrity

have not been called into question by his disciplinary violations.

However, not only has he offered virtually no persuasive evidence

or legal argument to this effect, the undisputed facts are

completely to the contrary. On a motion for summary judgment, no

genuine issue of material fact is raised if the non-movant offers

only “conclusory allegations lacking any factual basis in the

record.” Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir.

2006). The non-movant must do more than offer “‘mere

allegations’”; rather, she must demonstrate “‘specific facts’”

through evidence or affidavits. See Lujan v. Defenders of

11
The issue raised by Hitt v. Harsco Corp., 356 F.3d 920 (8th Cir.
2004), relied on by Plaintiff, where plaintiff in that case
asserted a genuine issue of fact as to whether he engaged in the
conduct for which he was terminated, is not the issue in this case.
Assuming arguendo that it were, as long as the employer reasonably
believes that the charges for which the plaintiff was terminated
are true, the termination may be legitimate and justified even if
the charges were, in actuality, false. See George, 407 F.3d at 415
(citation omitted).

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Wildlife, 504 U.S. 555, 561 (1992) (quoting Fed. R. Civ. P.

56(e)). Because Plaintiff has failed to provide evidence that

Defendant’s justification for terminating him was either dishonest

or unreasonable, no reasonable jury could find pretext in this

regard.

2. Plaintiff Has Not Demonstrated that Similarly-
Situated Employees Were Treated More Favorably.

In order to establish that a plaintiff is similarly-situated

to another individual, she must "demonstrate that 'all of the

relevant aspects of her employment situation were 'nearly

identical' to those of the” comparator. Holbrook v. Reno, 196

F.3d 255, 261 (D.C. Cir. 1999) (quoting Neuren v. Adduci,

Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)

(citation omitted)). This includes demonstrating that the

comparator was "charged with offenses of 'comparable

seriousness.'" Id. If a reasonable juror would be unable to find

that the plaintiff and the comparator were similarly situated, the

court may decide, as a matter of law, that the two are not

similarly situated. See George, 407 F.3d at 414-15.

Plaintiff and Defendant have discussed eight MTPD employees

as alleged comparators at various points throughout the record.12

Defendant’s Interrogatory No. 1 reads “Please identify each and

12
Plaintiff refers to these as his “Non-White Comparators.” See
Pl.'s 2d. Errata Opp'n to Def.'s Mot. for Summ. J. at 9. The
Court assumes this is a mistake and that he intends to say “Non-
Black Comparators.”

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every person whom you consider to be a ‘similarly situated while

[sic] Police Officer’ who was not subjected to the same discipline

to which you were subjected.” Pl.’s Resp. to Def.’s Interrogs. at

2. Plaintiff’s answer provided six names: Steven Morrison

(“Morrison”), Jason Williams (“Williams”), Julie Musitano

(Dronsfield) (“Musitano”), Scott Bird (“Bird”), Tommie Call

(“Call”), and Thomas Stolz (“Stolz”). Def.’s Mem. in Support of

Mot. for Summ. J. at 16.

Defendant argues that, because Plaintiff failed to name

Robert Burkholder (“Burkholder”) and Kenneth Honick (“Honick”) as

comparators in his response to Interrogatory No. 1, he is

precluded from identifying them as comparators after the

conclusion of discovery. See id.; Def.'s Reply to Pl.'s Opp’n to

Def.'s Mot. for Summ. J. at 5 n.5 (citing Gadaleta v.

Nederlandsch-Amerekaansche Stoomvart, 291 F.2d 212 (2d. Cir.

1961)).

It is not clear that this non-controlling authority fully

supports Defendant's assertion. Gadaleta found that, even though

responses to interrogatories may be used as admissions at trial,

the responses in that case were not treated as admitted because

they were predicated on the party proving that another condition

was present. 291 F.2d at 213 (finding that “[t]he answers here...

were conditional on the prior establishment of the existence of

the wet condition of the pier, which was not admitted by

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defendant”).

In the instant case, the issue is not that Plaintiff

responded to interrogatories in such a way that they were

dependent upon proof of an underlying condition. Here, the issue

is that Plaintiff failed to name all of his alleged comparators in

his interrogatory response and subsequently addressed only three

(Burkholder, Williams, and Musitano) in his Opposition to

Defendant’s Motion for Summary Judgment.

Plaintiff does list Burkholder and Honick in his response to

Interrogatory No. 4 as officers who allegedly committed offenses

similar to Plaintiff's [Dkt. No. 39].13 Pl.'s Resp. to Def.'s

Interrogs. at 5. He also mentions Burkholder in his deposition

and, for that reason, argues in favor of Burkholder’s inclusion as

a comparator. Pl.'s Dep. at 150:3-4. Plaintiff does not mention

Morrison, Bird, Call, Honick, or Stolz in his Opposition to

Summary Judgment or his Complaint. He does mention Bird in his

Statement of Material Facts as well as his Response to Defendant’s

Statement of Material Facts, see Pl.’s Statement of Material Facts

¶¶ 8-9; Pl.’s Resp. to Def.’s Statement of Material Facts ¶ 117.

However, his allegation that Bird is a similarly-situated

individual is cited to Defendant’s Motion for Summary Judgment,

and the remainder of his discussion of Bird is in reference to a

13
Names in the interrogatories are heavily redacted and it is,
therefore, difficult to ascertain whether Burkholder and Honick
were mentioned repeatedly.

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conclusory statement that Plaintiff made in his deposition. Pl.’s

Statement of Material Facts ¶¶ 8-9. For the sake of thoroughness,

Bird is discussed as a comparator below; however, Plaintiff has

legally conceded Bird’s position as a similarly-situated

individual by failing to include any discussion of him in his

Opposition.

Without admitting that Burkholder or Honick are similarly-

situated, Defendant does discuss all comparators mentioned by

Plaintiff anywhere in the record in its Motion for Summary

Judgment. Because Plaintiff effectively abandoned four alleged

comparators (Morrison, Call, Stolz, and Honick) by not discussing

them in his Opposition to Defendant’s Motion for Summary Judgment

or his Statement of Material Facts, those individuals are conceded

as not being similarly-situated to Plaintiff and, therefore, will

not be discussed herein. See FDIC v. Bender, 127 F.3d 58, 67-68

(D.C. Cir. 1997) (finding that a plaintiff concedes an argument

raised in a defendant’s motion if she fails to respond to that

argument in her opposition to the motion).

a. Julie Musitano

Musitano is a white female, employed by MTPD between May 8,

2000 and October 6, 2006, when she resigned. Musitano received

two disciplinary charges during her tenure, and both were in

connection with a single incident: "failure to safeguard prisoner

property... and failure to ensure that prisoner property is

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returned to the rightful owner." Def.'s Statement of Material

Facts ¶ 91. She was suspended for two days for the former charge

and one day for the latter.

Plaintiff argues that there was a disparity in treatment

between himself and Musitano because Defendant "should have

concluded" that Musitano was lying about misplacing prisoner

property. Pl.'s 2d. Errata Opp’n to Def.'s Mot. for Summ. J. at

15. However, the MTPD investigation did not make that finding.

Although MTPD retained an expert to review Musitano’s polygraph

results, it did not do so for Plaintiff’s admittedly unfavorable

results. See id. at 17. Plaintiff alleges that this also reveals

discriminatory treatment.

Based on the investigation’s findings, Musitano's infractions

were significantly less serious and less numerous than

Plaintiff's. They were in connection with a single incident, did

not endanger anyone, and did not involve the misuse of a service

weapon or service vehicle. For these reasons, Musitano is not

similarly-situated to Plaintiff.

b. Jason Williams

Williams is a white male, employed by MTPD since July 19,

1999. His first disciplinary incident occurred on September 13,

2003, when he attended to personal affairs while on duty and

falsified entries on his run sheet. He received four charges:

"failure to devote full time and attention to the business of the

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department... failure to provide the Communications Division with

an odometer reading prior to and following the transport of

juveniles or persons of the opposite sex... knowingly make [sic]

a false statement in any written or verbal report, and... failure

to perform duties impartially, without favor or affection or ill

will, and without regard to status, sex, race, religion, political

belief or aspiration." Def.’s Statement of Material Facts ¶ 104.

As a result, he was removed from mobile patrol and suspended for

four days.

Williams' second infraction was on March 10, 2005, when he

"conducted an unauthorized traffic stop" with Robert Burkholder.

Id. ¶ 106. Williams was charged with voluntarily participating in

a traffic stop without jurisdictional authority, searching a

vehicle on the basis of misleading information, making false

statements during an investigation (two charges), and discrediting

the MTPD. Pl.'s Ex. D at 8-10. His original punishment of a

thirteen day suspension with a reprimand was reduced by Chief

Hanson to a six day suspension with a reprimand, and he was warned

that further infractions would eventually lead to his termination.

Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 107.

Williams was involved in two disciplinary incidents within

eighteen months, in comparison to Plaintiff, who was involved in

five disciplinary incidents within nine months. Neither of his

infractions endangered anyone or involved the misuse of a service

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weapon or service vehicle. Although the second incident involved

giving false information, which was similar to Plaintiff’s

conduct, Williams did "'clarify' his statements." Def.’s 2d.

Errata Opp’n to Def.’s Mot. for Summ. J. at 14. Furthermore,

Plaintiff provided false information at the time of the incident,

following the incident, and during the investigation, resulting in

three charges for false information in comparison to Williams'

single charge. Def.'s Reply to Pl.'s Opp’n to Def.'s Mot. for

Summ. J. at 7-8. For these reasons, Williams is not similarly-

situated to Plaintiff.

c. Scott Bird

Bird is a white male, employed by MTPD between December 17,

2001 and October 24, 2007, when he resigned. His single

disciplinary violation was the accidental discharge of a weapon,

for which he was suspended for three days. The investigation did

not result in a finding of deception.

Although Bird's incident did involve the misuse of a service

weapon, it was his single violation in a roughly six-year period,

significantly less than Plaintiff's extensive disciplinary record.

For these reasons, Bird is not similarly-situated to Plaintiff.

d. Robert Burkholder

Burkholder is a white male, employed by MTPD since August 25,

1997. During his tenure, he has received twelve disciplinary

violations, and Chief Hanson has characterized his behavior as

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involving "deception by omission." Hanson Dep. at 88:3-4. First,

on December 11, 1998, he "received a dereliction for failure to

reinspect the prisoner transport area of his patrol vehicle" after

transporting a prisoner. Def.’s Statement of Material Facts ¶

128. As a result, he received counseling and was removed from

solo patrol for a month.

On April 7, 1999, Burkholder was suspended for one day

following an accident with his police vehicle.

On December 27, 1999, he received counseling and an order for

training in regards to his profanity use.

On March 13, 2000, Burkholder was reprimanded, removed from

solo patrol, and denied the opportunity to obtain outside

employment due to his use of inappropriate language. He again

received additional training.14

On February 8, 2001, he underwent formal counseling for

rudeness to a fellow employee.

On April 4, 2001 and December 29, 2003, Burkholder was

involved in two separate vehicle accidents and received a one day

suspension for each.15
14
Plaintiff includes a brief description of additional training
that Burkholder received in 2000: February 24, 2000, “Communicating
with Tact” Training; June 22-23, 2000, Verbal Judo; September 18-
22, 2000, Crisis Management Training. Pl.’s 2d. Errata Opp’n to
Def.’s Mot. for Summ. J. at 12.
15
Neither accident resulted in any injuries, and Burkholder
admitted all surrounding facts. Furthermore, a collective
bargaining agreement prohibited consideration of the prior vehicle
accident(s) at the time of each incident.

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 On January 25, 2005, he conducted an unauthorized traffic

stop when his duty at the time was with the rail canine explosives

team. He received counseling for the incident and "was directed

to discontinue unsupervised traffic stops." Id. ¶ 137.

On March 10, 2005, Burkholder was suspended for four days for

his involvement in the incident with Williams, supra. He was

charged with participating in a stop outside of MTPD jurisdiction,

failing to report a traffic stop and conducting it with misleading

information, failing to notify the Communications Division of the

stop, conducting a routine traffic stop contrary to specific

instructions for Metro Rail Canine Explosive Teams, and

discrediting the MTPD. Pl.'s Ex. D at 10-12. The investigation

also found that Burkholder "displayed signs of deception." Id. at

7.

On April 29, 2005, Burkholder was suspended for one day "for

conduct unbecoming of an officer."16 Def.'s Statement of Material

Facts ¶ 138.

On June 24, 2005, Burkholder was suspended for one day for

his part in a traffic stop conducted by him and Honick. He

received two charges: leaving "his sector without notification and

fail[ure] to notify communications that he had initiated a traffic

16
Plaintiff denies this paragraph and states that Burkholder was
not disciplined for false reporting and his persistence in making
unauthorized stops. Pl.'s Resp. to Def.'s Statement of Material
Facts ¶ 138. However, Plaintiff does not deny that Burkholder
received a one-day suspension.

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stop, as well as fail[ure] to notify an official that his vehicle

had become disabled." Id. ¶ 139.

Defendant omits from his Statement of Material Facts an

additional incident on May 10, 2005, when a citizen complaint was

filed against Burkholder's erratic driving of his service vehicle.

Burkholder stated that he was pursuing a drunk driver at the time.

His account of the incident differed significantly from the

complainant, who was also a police officer. An investigation

found that either Burkholder or the complainant was lying and

that, at the least, Burkholder "behaved unprofessionally... and

that his conduct was unbecoming [to] that of an MTPD officer."

Pl.'s Ex. G at 3. Sergeant Thomas A. Sharkey, who conducted the

investigation, recommended a one day suspension without pay.

Despite this admittedly extraordinary disciplinary record,

Plaintiff relies on only three incidents in comparing Burkholder

to himself -- those of March 10, 2005, May 10, 2005, and June 24,

2005. Pl.’s 2d. Errata Opp’n to Def.’s Mot. for Summ. J. at 9-13.

However, none of the three incidents involves Burkholder's misuse

of his service weapon, a significant difference in comparison to

Plaintiff’s two gun violations.

Burkholder's veracity and professionalism were certainly

called into question by the charges against him. However, his

violations differ from those against Plaintiff in that

Burkholder's infractions were largely related to his lack of

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restraint in carrying out his duties, i.e., over-stepping

jurisdiction and making traffic stops without authorization. As

already noted, many of Plaintiff's violations involved his use of

MTPD resources (his service weapon, his service vehicle, and his

paid, on-duty time) in attending to his personal affairs.

Furthermore, Plaintiff refers to Burkholder as “similarly-

situated to [himself] in position and tenure.” Pl's 2d. Errata

Opp’n to Def.'s Mot. for Summ. J. at 9. However, Burkholder had

worked at MTPD for almost twelve years, whereas Plaintiff’s tenure

with MTPD lasted less than two years.

As discussed above, in order for an individual to qualify as

similarly-situated to Plaintiff, “‘all of the relevant aspects of

[his] employment situation’” must be ‘”nearly identical’” to

Plaintiff’s, including a history of disciplinary violations of

“‘comparable seriousness.’” Holbrook, 196 F.3d at 261. While

Burkholder has a substantial disciplinary history, for the reasons

stated above, he does not qualify as a similarly-situated

individual.

IV. Conclusion

Once Defendant established a legitimate, non-discriminatory

justification for Plaintiff’s termination, the burden of proof

shifted to Plaintiff to prove that this justification was

pretextual. See Plummer, 559 F. Supp. at 329. Because Plaintiff

failed to meet this burden, no reasonable jury could find that

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Plaintiff’s termination was discriminatory. For all the reasons

set forth, Defendant's Motion for Summary Judgment is granted. An

Order shall accompany this Memorandum Opinion.

July 6, 2009 /s/
Gladys Kessler
United States District Judge

Copies via ECF to all counsel of record

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