Evans v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
Abraham Evans , )
)
Plaintiff, )
)
v. ) Civil No. 1:14-cv-01652 (APM)
)
District of Columbia, )
)
Defendant. )
_________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Abraham Evans filed this lawsuit against his former employer, Defendant District

of Columbia, alleging discriminatory treatment in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § et seq., and the District of Columbia Human Rights Act, D.C. Code § 14.01.1

et seq. Plaintiff—an African-American police officer who worked in the District of Columbia

Metropolitan Police Department (“MPD”)—asserts that Defendant terminated his employment on

the basis of his race. Defendant disagrees and instead contends that it fired Plaintiff because he

engaged in conduct that violated internal MPD policies and lied to MPD investigators about that

conduct.

This matter is before the court on Defendant’s Motion for Summary Judgment. Having

reviewed the pleadings and evidence, the court finds that no reasonable factfinder could conclude

that Defendant discriminated against Plaintiff when it terminated his employment. Accordingly,

the court grants Defendant’s Motion for Summary Judgment.
II. BACKGROUND

A. Factual Background

In 2002, the District of Columbia Metropolitan Police Department (“MPD”) hired Plaintiff

as a police officer. Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 25 [hereinafter Pl.’s Opp’n],

at 2. Before his termination in 2013, Plaintiff had received several performance awards and had

not been cited for any performance-related issues. Id.

In December 2008, MPD received a complaint that several on-duty MPD officers were

being paid to provide security for the Calvert Woodley liquor store, which recently had been

robbed. Pl.’s Opp’n at 2–3; Pl.’s Resp. to Def.’s Stmt. of Material Facts, ECF No. 25 [hereinafter

Pl.’s Resp.], ¶ 1; Def.’s Stmt. of Material Facts, ECF No. 23 [hereinafter Def.’s Stmt.], ¶ 1. In

response, MPD’s Internal Affairs Division and the FBI launched an investigation into the

allegations. Def.’s Stmt. ¶ 2; Pl.’s Resp. ¶ 2. As part of that investigation, MPD officers set up

surveillance at Calvert Woodley from December 2008 through May 2009, which revealed that

Plaintiff, along with two other MPD officers, would arrive at the liquor store around closing time,

receive an envelope from a store employee, and stand guard until the store closed. Def.’s Stmt.

¶ 3; Pl.’s Resp. ¶ 3. Based on the surveillance footage, MPD and FBI investigators questioned

several Calvert Woodley employees who admitted to paying MPD officers, including Plaintiff, for

extra security during closing hours. Def.’s Stmt. ¶ 4. The investigators then targeted an MPD

officer implicated in the allegations, Officer Nathaniel Anderson, who eventually admitted to

accepting payment for providing security and informed investigators that two other officers,

including Plaintiff, had done the same. Pl.’s Opp’n, Ex. 2, Final Investigative Report for Abraham

Evans, ECF No. 23-2 [hereinafter Evans Report], at 4–5.

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 The United States Attorney’s Office pursued criminal charges against the implicated MPD

officers. Id. at 1–2. On November 21, 2010, Officer Anderson pleaded guilty to illegally

supplementing his salary and ultimately resigned from MPD. Id. at 5. On January 21, 2011,

Plaintiff was indicted on charges of receiving illegal gratuities and illegal supplementation of

salary. Def.’s Stmt. ¶ 5; Pl.’s Resp. ¶ 5. A year later, however, prosecutors moved to dismiss the

indictment after discovering that Plaintiff had provided security to the liquor store while on unpaid

lunch breaks, which meant that he had not supplemented his income while on duty.1 Evans Report

at 10.

Notwithstanding dismissal of the indictment, MPD Internal Affairs continued its

investigation of Plaintiff’s conduct to determine whether to bring administrative charges. On

February 22, 2012, MPD investigators interviewed Plaintiff. Id. at 7. Plaintiff claimed that his

lieutenant had ordered him and the other officers on his shift to provide extra security for Calvert

Woodley during its closing hours. Id. Plaintiff flatly denied accepting any money in exchange for

providing those security services and explained that the envelopes he was seen accepting on the

surveillance footage did not contain cash, but rather, discounts on certain bottles of wine that he

had purchased while on duty. Id. at 8.

MPD Internal Affairs issued its Final Investigative Report on June 4, 2012. Id. at 1. The

Report concluded that Plaintiff had violated MPD policies by accepting unauthorized employment

and compensation; receiving gratuities while on duty; and making false statements to both MPD

and FBI investigators during the course of their investigations. Id. at 10–11; Def.’s Stmt. ¶ 6; Pl.’s

Resp. ¶ 6.

1
See United States v. Rhinehart, 11-cr-00020, Mot. to Dismiss Indictment, ECF No. 16 (D.D.C. Nov. 22, 2011).

3
 On January 17, 2013, Plaintiff was afforded an Adverse Action Hearing before a panel of

three senior MPD officers: Commander James Crane, Captain Marvin Lyons, and Captain Andrew

Wright (“the Panel”). Plaintiff was represented by counsel and both sides were able to present

evidence and witnesses to the Panel. At the hearing, two witnesses testified that they had

personally paid Plaintiff money in exchange for providing security services for Calvert Woodley.

Def.’s Stmt. ¶ 7; Pl.’s Resp. ¶ 7. The Panel ultimately found Plaintiff guilty of all three charges

and recommended his termination. Def.’s Stmt. ¶ 9; Pl.’s Resp. ¶ 9.

On March 4, 2013, the MPD Human Resource Management Division issued a Final Notice

of Adverse Action, which formally adopted the Panel’s findings; notified Plaintiff that he would

be terminated effective April 19, 2013; and informed him of his right to appeal to the MPD Chief

of Police. See Def.’s Mem. in Supp. of Mot. for Summ. J., ECF No. 23 [hereinafter Def.’s Mot.],

Ex. 1, Final Notice of Adverse Action for Abraham Evans, ECF No. 23-1 [hereinafter Evans Final

Notice], at 3–4.

B. Procedural Background

On October 2, 2014, Plaintiff filed suit in this court, alleging discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and the District of Columbia

Human Rights Act, D.C. Code § 14.01.1 et seq. See Compl., ECF No. 1, ¶ 38. The crux of

Plaintiff’s discrimination claims is that the MPD investigation leading to his termination was in

fact pretext for race discrimination and that other non-African American officers had been treated

more leniently than Plaintiff for committing similar misconduct.

On February 15, 2016, following discovery, Defendant filed a Motion for Summary

Judgment, arguing that it had terminated Plaintiff for a legitimate non-discriminatory reason—

specifically, his acts of misconduct and deceit, as detailed in the Final Notice of Adverse Action.

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See Def.’s Mot at 4–7. On April 11, 2016, Plaintiff filed his Opposition to Defendant’s Motion

for Summary Judgment, claiming that Defendant’s proffered non-discriminatory reason for

terminating him was a pretext for discrimination. See generally Pl.’s Opp’n. On May 13, 2016,

Defendant filed a Reply to Plaintiff’s Opposition. See Def.’s Reply in Supp. of Mot. for Summ.

J., ECF No. 29 [hereinafter Def.’s Reply].

III. LEGAL STANDARD

Summary judgment will only be granted if the movant can show 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). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving

party, and a fact is “material” only if it is capable of affecting the outcome of litigation. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A non-material factual dispute is insufficient to

prevent the court from granting summary judgment. Id.

Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case . . . on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The party moving for summary

judgment “bears the initial responsibility of informing the district court of the basis for its motion”

and identifying those portions of the record that it believes “demonstrate the absence of a genuine

issue of material fact.” Id. at 323.

Once the moving party has made an adequate showing that a fact cannot be disputed, the

burden shifts to the party opposing summary judgment to “set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (internal quotation marks omitted).

The nonmoving party may oppose the motion using “any of the kinds of evidentiary materials

5
listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would

normally expect the nonmoving party to make the showing to which [the Court has] referred.”

Celotex Corp., 477 U.S. at 324. “The evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. However, “to

defeat a motion for summary judgment, the non-moving party must offer more than mere

unsupported allegations or denials.” Dormu v. District of Columbia, 795 F. Supp. 2d 7, 17 (D.D.C.

2011). In other words, if the non-movant’s evidence is “merely colorable or . . . is not significant ly

probative . . . summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations

omitted). Summary judgment, then, is appropriate when the nonmoving party fails to offer

“evidence on which the jury could reasonably find for the [non-movant].” Id. at 252.

IV. DISCUSSION

Under Title VII, an employer may not “discharge any individual, or otherwise . . .

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). Nor may an employer “limit, segregate, or classify his

employees . . . in any way which would deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an employee, because of such individua l’s

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2). Similarly, under the

DCHRA, an employer may not “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, including promotion; or to limit, segregate, or classify his employees

in any way which would deprive or tend to deprive any individual of employment opportunit ies,

or otherwise adversely affect his status as an employee.” D.C. Code § 2-1402.11(a)(1).

6
 In the absence of direct evidence of discrimination, Title VII and DCHRA claims are

analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Gaujacq v. EDF, Inc., 601 F.3d 565, 576 (D.C. Cir. 2010). The plaintiff

bears the burden of proving a prima facie case of discrimination; if he does so, the burden shifts to

the defendant to “articulate some legitimate, nondiscriminatory reason” for the adverse

employment action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981). The

plaintiff then must “prove by a preponderance of the evidence that the legitimate reasons offered

by the defendant were not its true reasons, but were a pretext for discrimination.” Id. at 253.

In the summary judgment context, however, once an employer sets forth a legitimate, non-

discriminatory reason for the employment action, “the question whether the employee actually

made out a prima facie case is no longer relevant, and thus disappears and drops out of the picture.”

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (internal quotations

omitted); see also Nurriddin v. Bolden, 818 F.3d 751, 758 (D.C. Cir. 2016) (“At the summary

judgment stage, once the employer has claimed a nondiscriminatory reason for its actions, this

burden-shifting framework disappears.”). At that point, the court must determine whether “the

employee [has] 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” or some other prohibited ground. Brady,

520 F.3d at 494; accord Nurriddin, 818 F.3d at 758 (“The ‘one central inquiry’ that remains is

whether a reasonable jury could infer retaliation or discrimination from the evidence.”). Courts

should consider this issue “in light of the total circumstances of the case,” asking “whether the jury

could infer discrimination from the combination of (1) the plaintiff’s prima facie case; (2) any

evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and

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(3) any further evidence of discrimination that may be available to the plaintiff . . . or any contrary

evidence that may be available to the employer.” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C.

Cir. 2012) (internal quotation marks omitted); see also Nurriddin, 818 F.3d at 759.

Here, Defendant has asserted a non-discriminatory reason for Plaintiff’s termination: its

finding that Plaintiff engaged in unauthorized employment, accepted gratuities while on duty, and

misled MPD investigators in an attempt to cover up his misconduct. Thus, the question whether

Plaintiff made out a prima facie case is no longer relevant, and the court instead turns directly to

the whether Plaintiff produced evidence sufficient—under a preponderance of the evidence

standard—for a reasonable jury to find that Defendant’s stated reason was not the actual reason

for his termination and that the true reason was his race. See Brady, 520 F.3d at

495; see also Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1154 (D.C. Cir. 2004) (“[O]nce

the defendant has responded with rebuttal evidence, the factfinder normally proceeds to the

ultimate issue on the merits to determine whether the employer intentionally discriminated against

the plaintiff.”).

A. The Reasonableness of Defendant’s Conclusion that Plaintiff Had
Committed Misconduct

Plaintiff contends that the court should deny summary judgment because there is a genuine

dispute as to whether Defendant’s proffered reason for terminating him—namely, his violation of

various MPD policies—was the true reason for his termination. Pl.’s Opp’n at 15–21. The crux

of Plaintiff’s argument is that summary judgment is inappropriate because “[t]here are a number

of discrepancies and holes” in the Panel’s determination, “causing it to barely hold water.” Id. at

15. Plaintiff, for instance, points out that several of the witnesses who testified before the Panel

either did not acknowledge paying Plaintiff themselves or did not otherwise identify him as

someone who had received payment from other Calvert Woodley employees. Id. at 15–16. As to

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the two witnesses who did acknowledge paying him—Robert Starr and Kevin Ehrman—Plaintiff

asserts that a “credibility determination is warranted” as to their testimony and that, as a result,

summary judgment is inappropriate at this time. Id. at 16–17 (arguing as to Starr that “a credibility

determination is warranted” because he gave contradictory statements to investigators regarding

whether he recognized Plaintiff and as to Ehrman that “[a] credibility determination needs to be

made as to whether [he] held a grudge against the store and was using the investigation as an

opportunity to cause some legal issues for it”). In short, Plaintiff argues that a reasonable jury

could infer pretext from the inadequacy of the evidence against him. Id. at 15–21.

Plaintiff cannot, however, establish pretext by either attacking the credibility of the

witnesses who testified before the Panel or re-litigating the correctness of the Panel’s findings. As

the Court of Appeals has made clear, “[o]nce the employer has articulated a non-discriminat ory

explanation for its action . . . the issue is not the correctness or desirability of [the] reasons offered

. . . [but] whether the employer honestly believes in the reasons it offers.” Fischbach v. D.C. Dep’t

of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal quotation marks omitted). In other words,

“[a]n employer’s action may be justified by a reasonable belief in the validity of the reason given

even though that reason may turn out to be false.” George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir.

2005). “If 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.” Brady, 520 F.3d at 495.

The question here, then, is not whether Plaintiff in fact violated MPD policies, but whether

MPD decision-makers honestly and reasonably believed that he did so. See id. at 496 (finding that

summary judgment was proper where the plaintiff “did not produce evidence sufficient to show

that [his employer’s] conclusion was dishonest or unreasonable”); DeJesus v. WP Company LLC,

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No. 15-7126, 2016 WL 6694952, at *5 (D.C. Cir. Nov. 15, 2016) (emphasizing that the decision-

maker must both reasonably and honestly believe that the employee committed a transgression).

As to that inquiry, Plaintiff offers no argument or evidence. Plaintiff points to no proof that would

cause a factfinder to doubt the reasonableness of either the Panel’s credibility determinations or

its ultimate findings. Cf. Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015)

(“A plaintiff might also establish pretext with evidence that a factual determination underlying an

adverse employment action is egregiously wrong, because if the employer made an error too

obvious to be unintentional, perhaps it had an unlawful motive for doing so.” (internal quotation

marks omitted)). Nor does he offer any proof that MPD’s decision to accept the Panel’s findings

and its recommendation to terminate Plaintiff was “so unreasonable that it provokes suspicion of

mendacity.” DeJesus, 2016 WL 6694952, at *5. In short, Plaintiff must do more than dispute the

credibility of the witnesses who testified against him to defeat summary judgment. See Brady,

520 F.3d at 495–96 (rejecting argument that it is “the jury’s job to decide factual and credibility

questions” concerning whether the underlying incident ever occurred). He has not done so in this

case.

The court also finds unavailing Plaintiff’s argument that “the timeline of events does not

add up and, thus, indicates that [Defendant’s] reason for terminating [him] is pretextual for

discrimination.” Pl.’s Opp’n at 20. More specifically, Plaintiff claims that the passage of six

months between his reinstatement with pay in January 2012,2 and his being formally charged in

June 2012, can only be explained by “discriminatory reasons.” Id. But Plaintiff offers no authority

for the proposition that a reasonable inference of discriminatory intent can arise from the mere

2
At some point, MPD suspended Plaintiff without pay during the Internal Affairs investigation. On January 4, 2012,
MPD reinstated his full police powers with pay. See Pl.’s Opp’n, Ex. L, Reversal of Indefinite Suspension without
Pay for Abraham Evans, ECF No. 25-9.

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passage of time. Indeed, on this record, there is an obvious, non-discriminatory explanation for

the six-month lapse—during that time MPD was completing its investigation and preparing its

findings and recommendations. The record demonstrates that MPD Internal Affairs re-interviewed

Plaintiff on February 22, 2016. Evans Report at 7. It then held a “pre-write up conference” on

May 15, 2012. Id. at 12. Nothing on this record establishes that the time taken to accomplish

those tasks rendered the investigation “so unsystematic and incomplete that a factfinder could

conclude that the employer sought, not to discover the truth, but to cover up its own

discrimination.” Burley, 801 F.3d at 296. Thus, Plaintiff has failed to show that the investigation

itself was a pretext for discrimination.

B. Comparator Evidence

Plaintiff offers a second rationale for inferring pretext: He was treated more harshly

compared to other similarly situated employees who are not African American. Pl.’s Opp’n at 11–

14. Plaintiff identifies a number of non-African American MPD officers—S.B., D.H., C.P., J.D.,

D.P., and J.R.—who he claims “committed similar . . . or even worse offenses” and were

disciplined or investigated by Defendant, but were not terminated from their positions. Id.; see

also Pl.’s Resp. ¶¶ 7–16. The court finds that none of those officers are an appropriate comparator.

“One way to discredit an employer’s justification is to show that similarly situated

employees of a different race received more favorable treatment.” Royall v. Nat’l Ass’n of Letter

Carriers, AFL–CIO, 548 F.3d 137, 145 (D.C. Cir. 2008). “For a plaintiff to prove that she is

similarly situated to another employee, she must demonstrate that she and the alleged similarly-

situated employee ‘were charged with offenses of comparable seriousness,’ and ‘that all of the

relevant aspects of her employment situation were nearly identical to those of the other

employee.’” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016)

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(alteration adopted) (quoting Burley, 801 F.3d at 301). ‘“Factors that bear on whether someone is

an appropriate comparator include the similarity of the plaintiff’s and the putative comparator’s

job and job duties, whether they were disciplined by the same supervisor, and, in cases involving

discipline, the similarity of their offenses.”’ Id. (quoting Burley, 801 F.3d at 301).

Defendant argues that Plaintiff has not satisfied the Wheeler requirements because he failed

to demonstrate that the proposed comparators: (1) committed substantially similar offenses;

(2) had comparable jobs or job duties; and (3) were disciplined by the same supervisor. Def.’s

Mot. at 6–7; Def.’s Reply at 6–9. Defendant’s second argument is unconvincing, as all proposed

comparators were MPD officers and, thus, were subject to the same policies. See Mann v.

Washington Metro. Area Transit Auth., 168 F. Supp. 3d 71, 84 (D.D.C. 2015) (observing that “just

because two employees occupy different positions does not automatically render a comparison

between them inappropriate,” where they are subject to the same workplace policies). Therefore,

the court will only address Defendant’s first and third arguments. See Burley, 801 F.3d at 301–

02.

1. Officers S.B., J.D., D.P., and J.R

The court begins with those four officers for whom Plaintiff provided clearly admissible

evidence to support his comparator theory: S.B., J.D., D.P., and J.R. To support the theory,

Plaintiff offers both deposition testimony and internal MPD documentation—namely, a Final

Notice of Adverse Action for S.B. and investigative reports concerning J.D., D.P., and J.R.

See Pl.’s Opp’n, Ex. E, Dep. Tr. of Abraham Evans, ECF No. 25-6 [hereinafter Evans Dep.]; Pl.’s

Mot. to File Exs. Under Seal, ECF. No 26 [hereinafter Pl.’s Mot. to File Exs.], Ex. G, Final Notice

of Adverse Action for S.B., ECF No 26-2 [hereinafter S.B. Final Notice]; Pl.’s Mot. to File Exs.,

Ex. H, Final Investigative Report Concerning J.D., ECF No. 26-3 [hereinafter J.D. Report]; Pl.’s

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Mot. to File Exs., Ex. I, Final Investigative Report Concerning D.P., ECF No. 26-4 [hereinafter

D.P. Report]; Pl.’s Mot. to File Exs., Ex. J, Final Investigative Report Concerning J.R., ECF No.

26-5 [hereinafter J.R. Report].

The evidence presented, however, fails to establish that S.B., J.D., D.P., and J.R. committed

offenses that were substantially similar to Plaintiff’s misconduct. Although it is not necessary that

comparators engage in the exact same offense to be considered similarly situated, those

comparators must have at least committed offenses of “comparable seriousness.” McDonnell

Douglas, 411 U.S. at 804. For instance, in Wheeler, the Court of Appeals found the proposed

comparators appropriate even though their misconduct was factually distinct because, among other

things, those comparators had committed “categorically similar” misconduct—there, nurses whose

respective patient care was so negligent that it rose to the level of “gross misconduct.” Wheeler,

812 F.3d at 1118–1120. Here, however, Plaintiff has failed to demonstrate that the proposed

comparators’ misconduct was “categorically similar.”

Plaintiff was disciplined for engaging in unauthorized outside employment, making false

statements about that employment, and receiving gratuities. Def.’s Stmt. ¶ 6; Pl.’s Resp. ¶ 6.

Plaintiff’s proposed comparators, S.B., J.D., D.P., and J.R, also were disciplined for either

unauthorized employment or accepting outside compensation while on duty but, unlike Plaintiff,

none of them was found to have lied to investigators when confronted with their transgressions.

In fact, J.D., D.P., and J.R. all admitted their misconduct, and there is no evidence in the record

that S.B. attempted to mislead MPD investigators. See S.B. Final Notice; J.D. Report; D.P. Report;

J.R. Report. Plaintiff’s additional offense of making false statements to investigators actually

renders his conduct categorically dissimilar from that of his proposed comparators. The act of

dissembling by a police officer does not merely impugn the officer’s integrity, it also has far-

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reaching consequences for his capacity as a witness against an accused. See, e.g., Milke v. Ryan,

711 F.3d 998, 1007 (9th Cir. 2013) (“That [the law enforcement officer] was disciplined for lying

on the job obviously bears on his credibility and qualifies as Giglio evidence.”); Vaughn v. United

States, 93 A.3d 1237, 1263–64 (D.C. 2014) (holding that the failure to disclose a corrections

officer’s “track record for untruthfulness” warranted a new trial). Therefore, the officers who did

unauthorized off-duty work, but did not lie about that conduct, did not engage in conduct that was

“categorically similar” to Plaintiff’s actions.

Plaintiff attempts to bolster his comparator evidence by pointing to interrogatory responses

in which Defendant admitted that, (1) in 2008, “no White members were terminated for willfully

and knowingly making an untruthful statement,” and (2) in 2010, although at least one Caucasian

officer was found to have willfully and knowingly made an untruthful statement, none were fired.

See Pl.’s Opp’n, Ex. K, Def.’s Resps. to Pl.’s First Req. for Admissions, ECF No. 25-8, ¶ 7. That

evidence does not help Plaintiff show pretext, however, for two reasons. First, the fact that no

Caucasian officers were fired in 2008 for making false statements does not establish that there

were any Caucasian officers charged with such conduct in the first place. Indeed, in those same

interrogatories, Defendant denied that two Caucasian officers had willfully and knowingly made

false statements in 2008. See id. ¶ 8. Thus, the fact that no Caucasian officers were terminated in

2008 for making false statements provides no probative comparative evidence. Second, the fact

that, in 2010, there was one Caucasian officer found to have made false statements, but who was

not terminated, is simply not enough—without more context—for a reasonable factfinder to

determine that the officer’s misconduct was “categorically similar” to Plaintiff’s misconduct. The

record does not indicate, for instance, the nature of the untruthful statement, to whom it was

directed, or whether it was coupled with other types of misconduct. A false overtime entry, for

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example, is categorically different than lying to federal agents and Internal Affairs officers

investigating the misconduct of supplementing salary and accepting gratuities. Stated simply,

Defendant’s terse interrogatory responses, without more, do not allow for the kind of meaningful

comparison that would enable a factfinder to conclude that Plaintiff and the unnamed officer

identified in Defendant’s interrogatory were similarly situated.

In addition to failing to show that his proposed comparators committed substantially

similar offenses, Plaintiff also has not shown that both he and his proposed comparators were

disciplined by the same supervisors. See Burley, 801 F.3d at 301. Indeed, the record does not

conclusively establish who made the final decision to terminate Plaintiff. MPD’s Human Resource

Management Department sent Plaintiff his formal termination notice in the form of the Final

Notice of Adverse Action. See Evans Final Notice. The Notice states: “Upon consideration of

the findings by the Panel and a review of the record, I conclude that a Preponderance of the

Evidence proves that you are guilty of all charges as outlined in the Panel’s attached Findings,

Conclusions and Recommendations.”3 Id. at 2 (emphasis added). The Notice in the record does

not, however, identify who the “I” is that made the decision to adopt the Panel’s recommendation

to terminate Plaintiff—the Notice appears to be missing a signature page. The rest of the record

also does not supply an answer. It identifies the Panel members, but nowhere specifies who within

MPD adopted the Panel’s findings and recommendations. As a result, Plaintiff, who bears the

burden of proof on this issue, has failed to demonstrate that he and his proposed comparators were

disciplined by the same official.4 Burley, 801 F.3d at 301.

3
Although neither party entered into the record the Panel’s Findings, Conclusions and Recommendations, the Notice
itself makes clear that the Panel found Plaintiff guilty of each charge and recommended his termination for each
violation. Id. at 2.
4
There is conflicting evidence in the record as to whether then-MPD Chief Lanier was the final decision-maker.
Plaintiff alleged in his Complaint that she terminated him “[o]n or around April 19, 2013,” Compl. ¶ 28, and Defendant
“[a]dmitted” that allegation in its Answer, see Answer, ECF No. 6, ¶ 28. The Final Notice of Adverse Action,
however, states that Plaintiff could appeal his termination to Chief Lanier, see Evans Final Notice at 2–3, yet there is

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 2. Officers C.P. and D.H.

Plaintiff’s two other comparators—C.P. and D.H.—also do not help his case. Neither

officer’s actions nor discipline is established through admissible evidence so as to permit a

meaningful comparison. See Bush v. District of Columbia, 595 F.3d 384, 386 (D.C. Cir. 2010)

(holding that plaintiffs must “produce admissible evidence establishing a genuine issue of material

fact” in order to survive summary judgment). Plaintiff asserts that C.P. was suspended for thirty

days after making threats to First Lady Michelle Obama. Pl.’s Opp’n at 12. But that contention

is supported by nothing other than inadmissible hearsay. Plaintiff testified that he learned of C.P.’s

threats because “there was some sort of media on it” and that he “might have read it after it was

told to [him] by an officer.” Evans Dep. at 10. Furthermore, the basis for his contention that C.P.

received only a 30-day suspension was because “it was told to [him] by an officer.” Id. This type

of inadmissible hearsay in insufficient to defeat summary judgment. See Commercial Drapery

Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998).

The court rejects D.H. as a comparator for similar reasons. Plaintiff asserts that D.H.

committed check forgery, loan forgery, and theft of electricity, yet was not terminated. Plaintiff

did offer proof that D.H. was investigated for committing check forgery. See Pl.’s Mot. to File

Exs., Ex. M, Report of Investigation and Affidavit of Forgery for D.H., ECF No. 26-6. But he also

admitted that the check forgery allegations were later determined to be unfounded. See Evans

Dep. at 2. Additionally, as to D.H.’s alleged loan forgery and electricity theft, Plaintiff conceded

that the sole basis for that contention was the statements of unidentified officers. See id. at 5

(“Someone told me. I don’t remember.”); id. at 7 (“An officer told me. I don’t have any records

no record evidence that he ever did so or that she ever made a decision regarding Plaintiff’s employment. In any
event, even if the court were to assume that Chief Lanier was in fact the final decision-maker, Plaintiff still has not
shown that S.B., J.D., D.P., or J.R, were appropriate comparators, because the record does not establish that they too
were disciplined by Chief Lanier. See S.B. Final Notice; J.D. Report; D.P. Report; J.R. Report.

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of it.”). Such inadmissible hearsay cannot defeat summary judgment. See Commercial Drapery,

133 F.3d at 7.

***

In sum, Defendant provided a non-discriminatory reason for Plaintiff’s termination—his

violation of multiple MPD policies, including making false statements to officials investigating

his conduct—causing the burden to shift to Plaintiff to demonstrate that Defendant’s reason was

pretext for discrimination. For the reasons explained, Plaintiff failed to carry his burden.

Accordingly, the court will grant summary judgment in favor of Defendant on Plaintiff’s Title VII

and DCHRA claims.5

IV. CONCLUSION

For the foregoing reasons, the court grants Defendant’s Motion for Summary Judgment in

its entirety. A separate order accompanies this Memorandum Opinion.

Dated: December 1, 2016 Amit P. Mehta
United States District Judge

5
The court also agrees with Defendant that Plaintiff cannot proceed on his DCHRA claim because he failed to provide
the notice required under D.C. Code § 12-309. See Def.’s Mot. at 7–9. Plaintiff contends that he provided adequate
notice by alleging in his Complaint that a “DCMPD police report was issued by the Department regarding the
circumstances [of his conduct, which] put the District on notice.” Pl.’s Opp’n at 22. Plaintiff did not, however, supply
the police report he cites, and he cannot simply rely on allegations made in his Complaint to overcome Defendant’s
motion. See Anderson, 477 U.S. at 250; Celotex Corp., 477 U.S. at 324. Accordingly, the court finds that Plaintiff
did not satisfy the notice requirements of § 12-309 and, therefore, cannot proceed on his DCHRA claim.

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