Donovan v. Powell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DENIS BRENDAN DONOVAN,

Plaintiff,

v. Civil Action No. 14-741 (CKK)

EARL A. POWELL, III,

Defendant.

MEMORANDUM OPINION
(January 8, 2016)

Plaintiff Denis Brendan Donovan brings this action against Defendant Earl A. Powell, III,

in his official capacity as Director of the National Gallery of Art (“NGA”), asserting claims that

the NGA discriminated against him in violation of the Rehabilitation Act, 29 U.S.C. §§ 701, et

seq. Currently before the Court is Defendant’s [28] Motion for Summary Judgment. As of the

date of this Memorandum Opinion, Plaintiff, who is represented by counsel, has not filed a

response to Defendant’s motion or sought an extension of time in which to do so. 1 As such, the

Court shall deem the facts presented by Defendant in support of its motion for summary judgment

as admitted for the purposes of this analysis. LCvR 7(h)(1) (“In determining a motion for summary

1
Pursuant to this Court’s Minute Order of October 9, 2015, Plaintiff’s Opposition to
Defendant’s Motion for Summary Judgment was to be filed on or before December 16, 2015. The
Court notes that Plaintiff also did not file a response to Defendant’s [9] Motion to Dismiss in Part
which ultimately was granted both as conceded and on the merits. Moreover, at the June 12, 2015,
status hearing, Plaintiff indicated that he had completed no discovery in this matter, and had not
sought to extend the deadline to complete discovery which at that time had passed. See Min. Order
(Jun. 12, 2015). The Court set a briefing schedule for Plaintiff’s proposed motion to reopen
discovery, but Plaintiff did not file such a motion by the deadline or seek an extension. Min. Order
(Jun. 19, 2015). As discussed at the status hearing, the Court set a briefing schedule on the instant
Motion for Summary Judgment as no further discovery was ordered. Id.

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judgment, the Court may assume that facts identified by the moving party in its statement of

material facts are admitted, unless such a fact is controverted in the statement of genuine issues

filed in opposition to the motion.”); see also Fed. R. Civ. Pro. 56(e)(2) (“If a party . . . fails to

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

consider the fact undisputed for purposes of the motion.”). Upon consideration of the pleadings, 2

the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant’s [28]

Motion for Summary Judgment. Accordingly, the Court shall enter JUDGMENT for Defendant

on all of Plaintiff’s remaining claims.

I. BACKGROUND

A. Procedural History

On April 29, 2014, Plaintiff filed suit against Defendant in this Court asserting four claims

for relief under the Rehabilitation Act: (1) he was subject to disparate treatment in violation of 29

C.F.R. § 1630.4 (“Count I”); (2) he was subject to disparate treatment in violation of 29 C.F.R. §

1630.7 (“Count II”); (3) the NGA failed to reasonably accommodate him in violation of 29 C.F.R.

§ 1630.12 (“Count III”); and (4) he was subject to retaliation and coercion in violation of 29 C.F.R.

§ 1630.12 (“Count IV”). In response to the Complaint, Defendant filed its [9] Motion to Dismiss

in Part, contending that Counts II and III of the Complaint should be dismissed in their entirety

based on Plaintiff’s failure to state a claim, and Counts I and IV should be dismissed to the extent

that they are based on time-barred acts. Plaintiff filed no response to Defendant’s Motion to

Dismiss in Part. The Court issued an Order and accompanying Memorandum Opinion granting

Defendant’s Motion to Dismiss in Part both on the grounds that the motion was conceded and on

2
While the Court bases its decision on the record as a whole, its consideration has focused
on the following documents: Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. [28]; Def.’s Stmt.
of Undisputed Material Facts (“Def.’s Stmt.”), ECF No. [28-1].

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the merits. See Order (Oct. 2, 2014), ECF No. [11]; Mem. Op. (Oct. 2, 2014), ECF No. [12].

Pursuant to the Court’s Order, Plaintiff’s claims for relief under Counts I and IV as related to his

2004 request for reasonable accommodation and his 2006 discipline and suspension were

dismissed. As such, the only remaining claims before the Court are Counts I (disparate treatment)

and IV (retaliation and coercion) to the extent that Plaintiff seeks relief for his January 2013

termination and the incidents that occurred in December 2012. Specifically, Plaintiff alleges in

his Complaint that he was treated differently than other NGA employees who were similarly

situated because of his epilepsy, and that there was a causal connection between the termination

of Plaintiff’s employment on January 23, 2013, and the protected activity that he engaged in on

December 19, 2012. Defendant now seeks an award of summary judgment in Defendant’s favor

with respect to both of Plaintiff’s remaining claims.

B. Undisputed Material Facts

In 2012, Plaintiff Denis Donovan was employed as a Sales Store Checker in the gift shop

at the National Gallery of Art (“NGA”). Def.’s Stmt. ¶ 1. On Tuesday, December 4, 2012, a

member of the public (“the caller”) left a voice message with the NGA requesting that a manager

call her back in response to a complaint about an inappropriate comment that was made to the

caller’s 15-year-old daughter by a cashier while her daughter was at the NGA’s gift shop on the

previous day. Id. ¶¶ 2-3. Karen Boyd, Deputy Division Chief/Operations Manager for the Gallery

Shops returned the telephone call. Id. ¶ 4. The caller told Ms. Boyd that her daughter handed the

cashier a folded bill to purchase an item and the cashier told the girl to unfold the money. Id. ¶ 5.

When the daughter unfolded the money and handed it back to the cashier, the cashier responded,

“that’s how you give money to a stripper.” Id. The caller provided Ms. Boyd with the information

on the sale receipt, including the employee name and employee number, which identified Plaintiff

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as the cashier. Id. ¶ 6. The caller also provided a physical description of the cashier – a bald male

of medium height – to Ms. Boyd. Id. ¶ 7. The physical description matched Plaintiff. Id.

When Ms. Boyd confronted Plaintiff with these allegations, Plaintiff simply claimed that

he did not remember the incident. Id. ¶ 8. However, Plaintiff never asserted that the incident did

not occur. Id. On January 11, 2013, Ms. Boyd provided Plaintiff with a notice proposing his

removal from employment at the NGA based on his inappropriate statement to a minor. Id. ¶ 11.

Plaintiff was advised in that notice that he “may respond to this proposal, orally and/or in writing,

to Mr. David Krol, Chief of Retail Operations, who is the deciding official in this action.” Id. ¶ 12.

In that notice, Plaintiff also was advised that “if there are medical or other conditions that may

have affected your conduct as outlined above, you may provide medical or other information as

part of your response.” Id. ¶ 13. The notice indicated that Plaintiff had seven days to submit his

response or request an extension to respond. Id. Plaintiff received the notice on January 11, 2013,

and had an opportunity to review that document. Id. ¶ 14. However, Plaintiff provided no response

to the notice, nor did he request an extension of time to respond. Id. ¶ 15. Moreover, Plaintiff did

not provide any medical documents to Mr. Krol in an attempt to explain his conduct. Id. ¶ 16.

After considering the proposal to remove and supporting documentation, and in the absence

of any response from Plaintiff, Mr. Krol decided that removal was warranted for Plaintiff’s conduct

and notified Plaintiff by letter dated January 23, 2013, of his decision removing Plaintiff from his

employment with the NGA. Id. ¶ 17. Mr. Krol was not aware of Plaintiff’s disability at the time

of his decision nor was he aware of any prior protected conduct by Plaintiff at the time of his

decision. Id. ¶¶ 18-19. Plaintiff acknowledged that he is unaware of any other person whom he

believed was treated more favorably under similar circumstances, Def.’s Mot., Ex. E at 27:5-11

(Donovan Dep.), ECF No. [28-5]; Def.’s Mot., Ex. H at 13 (EEO Docs.), ECF No. [28-8], and

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both Ms. Boyd and Mr. Krol indicated that they were not aware of any other NGA Shop employees

who engaged in similar behavior, Def.’s Mot., Ex. F at 8 (Boyd Decl.), ECF No. [28-6]; Id., Ex.

G at 4 (Krol Decl.), ECF No. [28-7]. Plaintiff’s alleged prior protected conduct on which Plaintiff

bases his claim of retaliation occurred in 2004. Def.’s Stmt. ¶ 20.

Subsequently, during the Equal Employment Opportunity (“EEO”) complaint process,

Plaintiff explained that “one of the symptoms of my disability [epilepsy] is that during a seizure, I

can be unaware of what I am saying or doing. So I cannot say with certainty that I did not make

that statement.” Id. ¶ 9. However, Plaintiff did not mention the possibility of a seizure to Ms.

Boyd when she asked him about the incident, nor did he raise this possible explanation with Mr.

Krol prior to his termination. See id. ¶¶ 10, 17. Moreover, Plaintiff indicated that on December

3, 2012, he was not aware that he had a seizure. Donovan Dep. 18:14-18; EEO Docs. at 11.

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary

judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may

summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute

must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable

trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record — including deposition testimony, documentary evidence, affidavits

5
or declarations, or other competent evidence — in support of its position, or (b) demonstrate that

the materials relied upon by the opposing party do not actually establish the absence or presence

of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See

Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-

52. In this regard, the non-movant must “do more than simply show that there is some metaphysical

doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986); “[i]f the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

III. DISCUSSION

Plaintiff raises a disparate treatment claim and a retaliation and coercion claim premised

on the fact that Plaintiff is epileptic and that he allegedly reported an ADA violation to his

employer. Defendant argues that Plaintiff was not treated differently because he is epileptic, and

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his employment was terminated on January 23, 2013, based on a legitimate non-discriminatory

reason, namely the December 4, 2012, complaint related to the exchange between Plaintiff and the

15-year-old customer. The Court shall discuss each of Plaintiff’s claims in turn. For the reasons

described herein, the Court finds that there is no genuine dispute as to any material fact and, as

such, Defendant is entitled to summary judgment on both of claims.

A. Disparate Treatment Claim

Plaintiff claims that he was discriminated against based on the fact that he is epileptic and

that he was terminated as a result of his disability. Title VII of the Civil Rights Act makes it

unlawful for any 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 race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly, the Rehabilitation Act provides that “[n]o otherwise

qualified individual with a disability” may be discriminated against by a federal agency “solely by

reason of his or her disability.” 29 U.S.C. § 794(a). The Rehabilitation Act further states that “[t]he

standards used to determine whether this section has been violated in a complaint alleging

employment discrimination under this section shall be the standards applied under [provisions of]

the Americans with Disabilities Act [ADA].” Id. § 794(d). The ADA bars discrimination against

a “qualified individual on the basis of disability in regard to . . . conditions [ ] and privileges of

employment,” including “advancement,” 42 U.S.C. § 12112(a).

Where, as here, a plaintiff offers no direct evidence of discrimination, Title VII and

Rehabilitation Act claims are assessed pursuant to a burden-shifting framework initially set out by

the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See

Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 16-17 (D.C. Cir. 2009) (noting that

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McDonnell Douglas framework also applies to claims under the Rehabilitation Act). Pursuant to

that framework, the plaintiff has the initial burden of proving by a preponderance of the evidence

a prima facie case of discrimination or retaliation. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 252-53 (1981). Then, “the burden shifts to the defendant ‘to articulate some legitimate,

nondiscriminatory reason for the [adverse employment action].’” Id. at 253 (quoting McDonnell

Douglas, 411 U.S. at 802).

However, in Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008), the

D.C. Circuit simplified the analysis for Title VII disparate treatment suits. Under Brady, once an

employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting

framework disappears, and the court must simply determine whether the plaintiff has put forward

enough evidence to defeat the proffer and support a finding of discrimination or retaliation. See

Brady, 520 F.3d at 494 (“[W]here 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.”) (emphasis in original). Consequently, at the summary judgment stage, a

district court is left with “one central question: Has the employee produced sufficient evidence for

a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual

reason and that the employer intentionally discriminated against the employee on the basis of race,

color, religion, sex, or national origin?” Id. See also Kersey, 586 F.3d at 17 n.2 (applying Brady

in case involving the Rehabilitation Act). “In other words, the Court must determine if the plaintiff

has produced enough evidence such that a reasonable jury would find that the Department’s non-

discriminatory reasons are mere pretext for underlying unlawful discrimination.” Perry v.

Donovan, 733 F.Supp.2d 114, 118 (D.D.C. 2010).

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 Yet “[w]hile Brady directs the district court’s focus to the employer’s proffered non-

discriminatory reason, the Court still first must determine whether plaintiff has suffered an adverse

employment action.” Adesalu v. Copps, 606 F. Supp. 2d 97, 103 (D.D.C. 2009). See Evans v.

Sebelius, 716 F.3d 617, 619 (D.C. Cir. 2013) (noting that an adverse action is a prerequisite for a

Title VII claim) (citing Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003)); Patterson v.

Johnson, 505 F.3d 1296, 1298 (D.C. Cir. 2007) (“Liability for discrimination under Title VII

requires an adverse employment action.”) (citing Brown v. Brody, 199 F.3d 446, 452-55 (D.C. Cir.

1999)); Perry, 733 F. Supp. 2d at 118 (“Before the Court can undertake [the Brady] inquiry,

however, the Court must determine whether the alleged acts of discrimination constitute adverse

employment actions.”). See also Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008)

(stating that an adverse employment action is an essential element of a discrimination claim under

the Rehabilitation Act). Here, Plaintiff suffered an adverse employment action because he was

terminated from employment on January 23, 2013. See Douglas v. Preston, 559 F.3d 549, 552,

(D.C. Cir. 2009) (“An ‘adverse employment action’ is ‘a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,

or a decision causing significant change in benefits.’”).

Plaintiff acknowledged that he was not aware of any other person whom he believed was

treated more favorably under similar circumstances. Donovan Dep. 27:5-11; EEO Docs. at 13.

Moreover, both Ms. Boyd and Mr. Krol indicated that they were not aware of any other NGA Shop

employees who engaged in similar behavior. Boyd Decl. at 8; Krol Decl. at 4.

Defendant asserts that Plaintiff’s employment was terminated because of the incident with

the 15-year-old customer involving Plaintiff’s comment which had a sexual connotation and

provided an undisputed account of the decision to terminate Plaintiff from his position as outlined

9
above. Defendant also provided documentation in support of its legitimate, nondiscriminatory

reason for Plaintiff’s termination. Specifically, Defendant provided a transcript of the voicemail

message that was left on the hotline from the customer’s mother and a copy of the receipt from the

sales transaction that lists “Denis” as the employee. See EEO Docs. at 4, 6. In response to the

customer complaint, Ms. Boyd asked Plaintiff to stop by her office on Friday of that same week,

December 7, 2012. When Plaintiff came to Ms. Boyd’s office, Ms. Boyd informed Plaintiff of the

phone call and gave the description of the incident provided by the caller. Boyd Decl. at 5. Ms.

Boyd indicated that she and Plaintiff then had the following exchange:

After I finished, I asked him, “Is this true?” His response was, “I don’t know, I
don’t remember.” I questioned, “You don’t remember saying that to a customer?”
to which he responded, “I don’t know. I’m still upset about Nancy trying to change
my schedule yesterday.” I said, “I don’t know about that. You need to talk with
Nancy about that. Do you have anything to say about this matter?” He responded,
“I don’t know, Karen, I don’t remember.” I said, “Okay,” and he left.

Id. Ms. Boyd contends that at no time during this discussion did Plaintiff reference his epilepsy

or offer any explanation for why he did not remember the incident. Id.

Ms. Boyd contacted the Personnel Office and informed them that she wanted to pursue

Plaintiff’s removal. Id. at 6. In consultation with Meredith Weiser, the Deputy Personnel Officer,

and Luis Baquedano, one of the NGA’s attorneys, Ms. Boyd reviewed the Standard Table of

Offenses and Penalties to determine whether termination was the appropriate penalty and found

that it was. Id. Ms. Boyd provided documentation of Plaintiff’s past disciplines and the Personnel

Office provided a draft of the Letter of Proposed Removal. Id. Ms. Boyd reviewed the draft, may

have revised it, and then it was finalized. Id. Ms. Boyd indicated that in recommending Plaintiff’s

removal as the appropriate course of action:

I considered [Plaintiff’s] behavior to be egregious; it reflected on the Gallery and
our mission of customer service and visitor orientation. I had tried to correct his

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 customer service problems through other means, including verbal counseling and a
disciplinary suspension, but had been unsuccessful. I would not have suspended
him, because he already had been suspended.

Id. at 7. While the parties do not dispute that Ms. Boyd was aware that Plaintiff was epileptic, Ms.

Boyd indicated that she did not consider Plaintiff’s disability or prior EEO activity in issuing the

Notice of Proposed Removal. 3 Id. at 8. On January 11, 2013, Ms. Boyd issued the Notice of

Proposed Removal to Plaintiff. The same day, Plaintiff initialed the document to acknowledge his

receipt of it. EEO Docs. at 18-21; Donovan Dep. 34:18—35:3. The Notice informed Plaintiff of

the nature of the complaint against him and indicated that Plaintiff responded, “I don’t know, I

don’t remember,” when asked whether he made the “stripper” comment. EEO Docs. at 18. The

Notice also indicated that Ms. Boyd was proposing Plaintiff’s removal from his position at the

NGA and provided a description of Ms. Boyd’s reasons for making that recommendation. Id. at

19-20. The Notice advised Plaintiff of his right to respond to the proposal within 7 days of the

receipt of the Notice “orally and/or in writing, to Mr. David Krol, the Chief of Retail Operations,

who is the deciding official on this action.” Id. at 20. The Notice also indicated that Plaintiff could

provide a written request for more time to respond to Mr. Krol. Id. Moreover, the Notice indicated

that Plaintiff could provide Mr. Krol with affidavits, and medical or other information if there are

medical or other conditions that may have affected Plaintiff’s conduct. Id. Despite being advised

of his right to respond, Plaintiff did not submit a response to Mr. Krol. Donovan Dep. 35:7-19

3
In 2004, Plaintiff requested a reasonable accommodation to allow his epilepsy medication
to be delivered to him at work because the mailbox at his new apartment was not secure. Compl.
¶ 14. When Plaintiff’s supervisor, Karen Boyd, denied the request, Plaintiff was able to secure the
accommodation after contacting the NGA’s EEO Office and a resolution was negotiated. Id. ¶¶
14-15. Furthermore, in early 2006, Plaintiff was disciplined for “rude” conduct to customers. Id.
¶¶ 17-19. Several months later, NGA suspended Plaintiff for five days, alleging negligence and
insubordination. Id. ¶¶ 20-22. The Court dismissed Plaintiff’s claims as they relate to these two
incidents as time barred under the statute of limitations.

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(discussing notification of Plaintiff’s right to respond as set forth in the Notice and indicating that

he did not respond orally or in writing); see also EEO Docs. at 23 (“You were given an opportunity

to respond to the proposal, but you did not submit a response.”).

On January 23, 2013, Mr. Krol issued a letter to Plaintiff indicating his decision that

Plaintiff’s removal was warranted for egregious misconduct. Id. at 23-24. In reaching this

decision, Mr. Krol described the steps that he took after receiving the Notice of Proposed Removal

from Ms. Boyd. Krol Decl. at 3. Specifically Mr. Krol read through the documentation provided

to him, including the receipt from the transaction and the copies of previous discipline; contacted

Mr. Baquedano; and reviewed the applicable procedures. Id. at 3. After the notice period passed

without a response from Plaintiff, Mr. Krol made the decision to remove Plaintiff from his position

and notified Mr. Baquedano who drafted the January 23, 2013, Notice of Removal for Mr. Krol’s

signature. Id. Mr. Krol explained the basis of his decision as follows:

It was based on the information contained in the Proposal, the seriousness of the
offense, and the fact that there were previous incidents of similar misconduct
prejudicial to the Gallery. I considered this incident to be particularly serious
because it involved a minor and was sexual in nature. I was aware that [Plaintiff]
had been counseled, that he had the same training as other Shop employees,
including Disney customer service training, and that he was aware of the
importance of customer service to the Gallery. Customer service is paramount to
the Gallery and just one incident could seriously affect the Gallery and its operation.

Id. at 4. Notably, Mr. Krol indicated that he did not know Plaintiff had a disability at the time he

made the decision and only learned that Plaintiff was epileptic months later on September 6, 2013,

during his interview related to Plaintiff’s EEO complaint. Id. at 2. Plaintiff also testified during

his deposition that he did not believe that Mr. Krol was aware of his disability because Mr. Krol

did not know the Plaintiff. Donovan Dep. at 14:21—15:2; EEO Docs. at 9.

At some point after Plaintiff’s termination, the EEO investigation process was initiated.

Plaintiff prepared a declaration during that process. However, Plaintiff never returned a signed

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copy of the declaration to the EEO investigator. EEO Docs. at 2. Indeed, Carol L. Browne, the

EEO investigator, created a Memorandum on September 20, 2013, documenting her efforts to

obtain a signed copy of the declaration. Id. at 16. An unsigned copy of Plaintiff’s declaration was

provided alongside the instant motion and during his deposition, Plaintiff verified the accuracy of

the information in that declaration. See id. at 8-14; Donovan Dep. 11:22—33:20. In his

declaration, Plaintiff indicated that he did not think that he made the statement to the 15-year-old

customer. Specifically, Plaintiff stated:

I do not believe I could have said that and it is completely out of character for me.
However, one of the symptoms of my disability is that during a seizure I can be
unaware of what I am saying or doing, so I cannot say with certainty that I did not
make that statement.

EEO Docs. at 10; Donovan Dep. 16:22—17:4. Plaintiff indicated that he did not mention to Ms.

Boyd the possibility that a seizure could have caused his memory loss with respect to the incident

during his meeting with her in December 2012. EEO Docs. at 10; Donovan Dep. 17:5-9. Rather,

Plaintiff told Ms. Boyd during that meeting, “I have no idea what you’re talking about.” EEO

Docs. at 10; Donovan Dep. 15:23—16:7. Moreover, there is nothing in the record before the Court

to demonstrate that Plaintiff indicated to either Ms. Boyd or Mr. Krol prior to his termination that

the incident with the customer could have occurred while he was having a seizure. Indeed, Plaintiff

himself indicated that he was unaware if he had a seizure that day. EEO Docs. at 11; Donovan

Dep. 18:14-18. Plaintiff conceded that the information on the receipt reflected his name and

employee number and that he had no reason to doubt that he was the person to handle the sales

transaction at issue. Donovan Dep. 37:14—38:12.

Here, Plaintiff claims that he was terminated because he is epileptic. While Plaintiff was

subject to an adverse employment action when he was terminated from employment at the NGA

13
shop, Plaintiff has failed to produce evidence sufficient for a reasonable jury to find that the

Defendant’s stated reason for his termination, the incident that occurred on December 3, 2012, and

subsequent complaint from the customer’s mother, was not the actual reason and that the employer

intentionally discriminated against Plaintiff based on the fact that he is epileptic. Indeed,

Defendant has produced evidence that Mr. Krol was the ultimate decision maker with respect to

the decision to terminate Plaintiff. By Mr. Krol’s account as well by Plaintiff’s own account, Mr.

Krol was unaware at the time that he decided to terminate Plaintiff’s employment that Plaintiff

was epileptic. Given that Mr. Krol had no knowledge of Plaintiff’s disability and Plaintiff has

offered no evidence whatsoever to rebut that Mr. Krol was the ultimate decision maker, Defendant

is entitled to summary judgment with respect to Plaintiff’s disparate treatment claim. See Halasa

v. ITT Educ. Servs., 690 F.3d 844, 848 (7th Cir. 2012) (holding that plaintiff failed to establish that

his protected conduct was connected to the decision to fire him when plaintiff did not present any

evidence that the persons who made the termination decision knew of the protected conduct);

McGowan v. Billington, 281 F. Supp. 2d 238, 249 (D.D.C. 2003) (noting that plaintiff’s claim

failed because plaintiff offered no evidence of motive when claiming that one person on a hiring

panel acted on behalf of the management which had the alleged retaliatory animus, in not selecting

plaintiff for a position).

B. Retaliation Claim

Plaintiff also contends that there is a causal connection between his alleged protected

activity under the ADA on December 19, 2012, and the termination of his employment on January

23, 2013. The ADA “bars retaliation against an individual for making a charge under or opposing

any practice made unlawful by that Act.” Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d

13, 16 (D.C. Cir. 2009). Because the plaintiff has offered only circumstantial evidence of

14
retaliation, his claim also is analyzed under the McDonnell Douglas burden-shifting framework.

Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014). “To establish a prima facie case of retaliation

based on circumstantial evidence, a plaintiff must show that “(i) [ ]he engaged in statutorily

protected activity’; (ii) ‘[ ]he suffered a materially adverse action by h[is] employer’; and (iii) ‘a

causal link connects the two.’” Doak v. Johnson, 798 F.3d 1096, 1107 (D.C. Cir. 2015). If a prima

facie case is established, the burden shifts to the defendant to produce a legitimate,

nondiscriminatory reason for the adverse employment action. Id. “Once the employer does so,

the plaintiff must respond with ‘sufficient evidence to create a genuine dispute on the ultimate

issue of retaliation’ by showing either directly that ‘a discriminatory reason more likely motivated

the employer,’ or indirectly that ‘the employer’s proffered explanation is unworthy of credence.’”

Id. (quoting Solomon, 763 F.3d at 14).

While Plaintiff has not presented any evidence related to this claim, the Court has

considered the evidence accompanying Defendant’s instant motion with respect to this incident. 4

Plaintiff indicated that in December 2012, after his December 7, 2012, meeting with Ms. Boyd

regarding the customer complaint, he was working in the Shop with his co-worker, Mary Powell,

when they noticed fixture displays that were too close together and could make the Shop

inaccessible for someone with a disability. EEO Docs. at 12. Ms. Powell voiced a concern about

the displays to Plaintiff when Ms. Boyd was not present. Donovan Depo. 23:7-22. At some point

after this, Ms. Boyd was on the sales floor with buyers and book specialists conducting a

walkthrough. Id. 24:4-17. Ms. Boyd stated with respect to the displays, “It’s not ADA compliant,

4
While Plaintiff did not provide any evidence in response to Defendant’s Motion for
Summary Judgment, the Court acknowledges that Defendant provided both Plaintiff’s unsigned
declaration and Plaintiff’s deposition testimony verifying the contents of the declaration so that
the Court could consider Plaintiff’s account of the incidents at issue.

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but they’ll figure it out.” EEO Docs. at 12. At this time, Ms. Boyd was basically “speaking out

loud” while observing the fixtures, but was not responding to any concern raised by Ms. Powell

or another person. Donovan Dep. 24:18-25, 25:4-9. Plaintiff was offended by Ms. Boyd’s

statement and asked, “Did you actually just say that?” EEO Docs. at 12. When Ms. Boyd asked,

“What?,” Plaintiff indicated, “You basically just said ‘to heck with the handicapped.’” Id. At this

point Ms. Boyd did not answer and just walked away. Id. Plaintiff contends that Ms. Boyd’s

statement, “they’ll figure it out” was in reference to people with disabilities such as people in

walkers or wheelchairs. Donovan Dep. 25:10-20.

Ms. Boyd indicated that she did not recall Plaintiff raising any concerns about ADA

compliance, but she did know that at some point Plaintiff asked questions during a reorganization

of the store related to space between the display fixtures. Boyd Decl. at 2-3. Ms. Boyd also did

not recall Plaintiff’s statement that Ms. Boyd basically said “to heck with the handicapped,” but

noted that such a statement would not be unusual for Plaintiff. Id. at 3. Plaintiff asserts in his

Complaint that there is a casual connection between the exchange on or around December 19,

2012, 5 with Ms. Boyd and Plaintiff’s termination on January 23, 2013. 6 Compl. ¶ 41.

Here, even assuming that Plaintiff’s ambiguous exchange with Ms. Boyd and her stray

comment on December 19, 2012, was protected activity under the ADA, Plaintiff’s claim still fails.

The temporal proximity between December 19, 2012, exchange, and Plaintiff’s termination on

5
In his Complaint, Plaintiff indicates that the date of this incident is December 19, 2012.
Compl. ¶ 25. However, in Plaintiff’s declaration he simply notes that the incident occurred after
his December 7, 2012, meeting with Ms. Boyd but before he went on leave for the holidays. EEO
Docs. at 12. For the purposes of this analysis, the Court shall refer to the incident as the December
19, 2012, exchange as it occurred by Plaintiff’s account on or around that date.
6
While Plaintiff indicates in the Complaint that he was terminated from his employment
on January 25, 2013, the letter from Mr. Krol notifying Plaintiff of the decision was dated January
23, 2013. EEO Docs. at 23.

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January 23, 2013, may alone establish the necessary causal connection to make out a prima facie

case. However, once Defendant, as it has done in this action, provides a legitimate, non-retaliatory

reason for Plaintiff’s termination, “positive evidence beyond mere proximity is required to defeat

the presumption that the proffered explanations are genuine.” Woodruff v. Peters, 482 F.3d 521,

530 (D.C. Cir. 2007). Here, the only evidence linking Plaintiff’s purported protected activity under

the ADA and the termination of his employment is the temporal proximity of two incidents, and

Plaintiff has presented no evidence whatsoever in response to Defendant’s proffer that Plaintiff

was terminated based on the complaint received regarding Plaintiff’s interaction with a 15-year-

old customer, nor has Plaintiff entirely denied that the incident occurred. This showing is

insufficient to survive a motion for summary judgment because Plaintiff has failed to put forward

any evidence to defeat the proffer and support a finding of retaliation. See, e.g., Allen v. Johnson,

795 F.3d 34, 47 (D.C. Cir. 2015).

More importantly, there is nothing in the record to demonstrate that Mr. Krol, the ultimate

decision maker, had any knowledge of the exchange between Ms. Boyd and Plaintiff on December

19, 2012, prior to making the decision that Plaintiff should be terminated. Indeed, by Plaintiff’s

own account, Mr. Krol did not know Plaintiff and had only been working at the NGA for about a

year. EEO Docs. at 9. Moreover, the Court notes that while the December 19, 2012, incident

occurred approximately two weeks after Ms. Boyd had the conversation with Plaintiff regarding

the complaint received on the hotline and approximately two weeks before she issued the Letter

of Proposed Removal, it also appears that Ms. Boyd may have initiated the process of proposing

the Plaintiff’s termination by contacting the Personnel Office, consulting the Standard Table of

Offenses and Penalties, and reviewing the draft Letter of Proposed Removal provided by the

Personnel Office by that time. Boyd Decl. at 6. Accordingly, for the reasons set forth above, the

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Court concludes that Defendant is entitled to summary judgment on Plaintiff’s retaliation and

coercion claim based on the fact that Plaintiff has failed to produce evidence sufficient for a

reasonable jury to find that the Defendant’s stated reason for his termination was not the actual

reason and that Defendant terminated Plaintiff from his employment in retaliation for his

December 19, 2012, exchange with Ms. Boyd regarding the display fixtures.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s [28] Motion for Summary

Judgment. Specifically, the Court GRANTS Defendant’s request for summary judgment with

respect to both of Plaintiff’s remaining claims, Counts I (disparate treatment) and IV (retaliation

and coercion) of Plaintiff’s Complaint seeking relief for his January 2013 termination and the

incidents that occurred in December 2012. Accordingly, the Court shall enter JUDGMENT for

Defendant on all of Plaintiff’s remaining claims.

An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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