Ranowsky v. National Railroad Passenger Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KATHLEEN RANOWSKY, )
)
Plaintiff, )
)
v. ) Civil Case No. 15-1133 (RJL)
)
NATIONAL RAILROAD )
PASSENGER CORPORATION )
d/b/a AMTRAK et al., ) F I L E D
)
Defendants. ) MAR 26 2017
- C|erk. U.S. Dlstr|ct & Bankruptcy
MEMO.RA DUM OPINION Courts forthe D|str|ct of Columb|a

(March l‘_, 2017) [Dkt. # 31]

Kathleen Ranowsky (“plaintiff’ or “Ranowsky”) brings this action against the
National Railroad Passenger Corporation (“Amtrak”), Amtrak Inspector General Tom
Howard (“Howard”), and Chief Human Capital Officer for the Amtrak Inspector General,
Terry Gilmore (“Gilmore”). Ranowsky alleges that Amtrak discriminated against her on
the basis of her age and gender, unlawfully terminated her from her position as Deputy
Counsel to the Amtrak Inspector General, and discriminated and retaliated against her
When it refused to rehire her at Amtrak, all in violation of the District of Columbia Human
Rights Act (“DCHRA”), D.C. Code § 2-1401, et seq., and § 2-1402.11, et seq. Ranowsky
further alleges that Howard and Gilmore aided and abetted Amtrak’s discriminatory and
retaliatory conduct, in violation of D.C. Code § 2-1402.62. Currently before the Court is
defendants’ Motion for Summary Judgment [Dkt. # 31]. Upon consideration of the parties’

pleadings, the entire record in this case, and relevant laW, the Court GRANTS summary

judgment in favor of defendants
BACKGROUND

Ranowsky began her employment With Amtrak on July 21, 1997, as an attorney in
Amtrak’s Law Department. Defs.’ Statement of Undisputed Material Facts (“Defs.’ SOF”)
1l 5 [Dkt # 31-2]; Ranowsky Dep. at 24517-20 [Dkt. # 3 l-3]. In April of 2002, Ranowsky
became Deputy Counsel in the Offioe of the lnspector General (“OIG”), Where she
remained until her termination Defs.’ SOF Tl 6; Ranowsky Dep. at 24:19-22; 46:25~47:2.
At all times, defendants Terry Gilmore (“Gilmore”) and Thomas Howard (“Hovvard”) Were
Chief Human Capital Offlcer for the Amtrak lnspector General and Inspector General for
Amtrak, respectively. Defs.’ SOF W 12, 30; Pl.’s Statement of Material Facts Genuinely
in Dispute (“Pl.’s SOF”) W 12, 30 [Dkt. # 40].

On November 18, 2014, Howard notified Ranowsky of her termination in a letter
Which stated: “[t]his letter serves as notification of the termination of your position as
Deputy Counsel for the Office of Inspector General With the National Railroad Passenger
Corporation, in accordance With Amtrak’s Policy and lnstruction Manual (APIM) Human
Resources Policy 7.32.0[.] Termination Will be effective December 2, 2014.” ll/18/14
Termination Letter at l [Dkt. #38-4]. The stated reason for the termination Was “loss of
confidence” in Ranowsky’s “ability to perform in the role of Deputy Counsel.” Id. Her
termination Was designated as a “reduction in force,” thereby making Ranowsky eligible
for a severance agreement not ordinarily available to those employees who are
involuntarily terminated unless designated as a reduction in force. Defs.’ SOF 11 34;

Gilmore Dep. at 33112-18; 54:19-55:4 [Dkt. # 3l-lO]. Ranowsky declined the package

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and later opted to collect early retirement beneflts, so her termination designation was
changed to “Early Retirement.” Defs.’ SOF 1 35; Gilmore Dep. at 63:22-65:14. At the
time of her termination, Ranowsky was sixty~two years old. Ranowsky Dep. at 5115-16.
Howard, also sixty-two years old at the time, was Ranowsky’s second level supervisor and
was the sole decision-maker behind the decision to terminate Ranowsky’s employment,
although he did consult with other senior colleagues. Defs.’ SOF 1111 2l, 65', Howard Dep.
at 19:6~7,97117-99:8 [Dkt. # 31-4]; Howard Decl. il 2 [Dkt. # 31-9].

Ranowsky also alleges Amtrak did not interview her for two positions to which she
applied in 2015 as further age and gender discrimination and as an act of retaliation for the
Charge of Discrimination she filed with the United States Equal Employment Opportunity
Commission (“EEOC”) in January 2015. See EEOC Charge of Discrimination,
[Dkt. # 39-9 (Under Seal)]. First, in March 2015, Ranowsky applied to the open Deputy
Counsel Position in Amtrak OIG, but OIG Deputy Inspector/Counsel Kevin Winters
decided not to interview her. Defs.’ SOF 111 47-51; Winters Dep. at 79:20-22
[Dkt. # 3 l-l l]. Winters instead chose to hire F rank Mazurek, who was under the age of
forty and had nearly a decade of experience in NASA’s Offlce of Inspector General. Defs.’
SOF 1 56; Winters Dep. at 102116-19; l\/Iazurek Dep. 1916-20116 [Dkt. # 3l-l3]. ln July
2015, Ranowsky applied to an opening for an experienced transactional attorney position
with the Amtrak Law Department, but the Managing Deputy General Counsel for the Law
Department, William Herrmann, made a determination not to interview her because of his
prior experience working with her and his determination that she would not “be a positive

addition or contribution to the work” of the Department. Defs.’ SOF 11 59; Herrmann

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Decl. jj 3 [Dkt. # 31-14].

Plaintiff filed this Complaint in the Superior Court of the District of Columbia on
June lO, 2015. Notice ofRemoval jj l [Dkt. # l]. ()n July 15, 2015, defendants collectively
removed this case to federal court pursuant to 28 U.S.C. §§ l44l(a) and 1446, on the
grounds that Amtrak is a federally-chartered stock corporation and the United States owns
more than one-half of its capital stock. [a’. See 28 U.S.C. § 1349; Nat’l R.R. Passenger
Corp. v Lexington Ins. Co., 365 F.3d llO4, llO5 (D.C. Cir. 2004) (“The case is in federal
court because Amtrak is a federal corporation and the federal government owns more than
one-half of its stock.”).

STANDARD OF REVIEW

Under the Federal Rules of Civil Procedure, summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is entitled to
summary judgment as a matter of law.” FED. R. CIV. P. 56(a); See also Celotex Corp. v.
Calrett, 477 U.S. 317, 322 (1986). The burden is on the movant to show that there is no
dispute of fact, but the non-moving party carries the “burden of producing . . . evidence
that would support ajury verdict.” Ana’erson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). The non-moving party “may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.”

Id.
When ruling on a motion for summary judgment, the court must accept as true the
evidence of the non-moving party, and draw “all justifiable inferences” in favor of that

party. Ia’. at 255. However, to the extent that the party opposing summary judgment will

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bear the burden of proving facts at trial, those facts must be supported by competent
evidence, and the absence of that evidence forms the basis for summary judgment See
Ce!ozex, 477 U.S. at 322-24. A genuine dispute of material fact exists only where “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
A)iderson, 477 U.S. at 248.

ANALYSIS

I. Legal Standard

Ranowsky brings her claims under the DCHRA, which makes it unlawful for an
employer "to fail or refuse to hire, or to discharge, any individual” because of his or her
“race, color, religion, national origin, sex, age, marital status, personal appearance, sexual
orientation, gender identity or expression, family responsibilities, genetic information,
disability, matriculation, or political affiliation.” D.C. CODE §2-1402.1 l(a)(l). The statute
also prohibits retaliation against employees who exercise their DCHRA rights, stating that
it is unlawful to “retaliate against . . . any person . . . on account of having exercised or
enjoyed . . . any right granted or protected” under the DCHRA, and imposes liability on
persons who aid or abet DCHRA violations. Id. § 2-l4()2.6l(a), § 2-l4()2.62.

DCHRA discrimination and retaliation claims are analyzed the same as claims
brought under federal employment discrimination statutes, and are thus subject to the
traditional three-step framework set forth in McDoi/me!l Douglas Corp. v. Green, 4ll U.S.
792, 802-03 (1973). Vatel v. Allz`ance ofAuto. Mfrs., 627 F.3d 1245, 1246 (D.C. Cir.
201 l) (“We analyze discrimination claims under the D.C. Human Rights Act in the same
way that we analyze discrimination claims under the federal anti-discrimination laws.”);

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McCal`n v. CCA OfTenn., [nc., 254 F. Supp. 2d 115, 124 (D.D.C. 2003) (“The elements of
a retaliation claim under the DCHRA are the same as those under the federal employment
discrimination laws.”).

Under this three-step framework, the plaintiff must first make out a prima facie case
ofdiscriminatory or retaliatory conduct. For discrimination claims, the plaintiff must show
that “(1) she is a member of a protected class; (2) she suffered an employment action; and
(3) the unfavorable action gives rise to an inference of discrimination.” Stella v. Mi`neta,
284 F.3d 135, 145 (D.C. Cir. 2002). For retaliation claims, a plaintiff needs to show “that
she engaged in protected activity, that she suffered an adverse employment action, and that
there was a causal link between the former and the latter.” Allen v. Johnson, 795 F.3d 34,
39 (D.C. Cir. 2015). Once a plaintiff establishes a prima facie case, the employer must
provide a legitimate non-discriminatory or non-retaliatory reason for its adverse action.
McDonnell-Douglas, 4ll U.S. at 802; Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015).
lf the employer cannot provide an actual, legitimate reason for the action, then the plaintiff
is entitled to judgment Allen, 795 F.3d at 39.

If, however, the employer offers a non-discriminatory or non-retaliatory reason for
the challenged action, the burden-shifting framework disappears and the court’s inquiry
narrows. Once an employer offers a legitimate reason for it conduct, the existence of a
prima facie case becomes legally irrelevant, and a court considering a motion for summary
judgment need not decide whether the plaintiff met all the elements of a prima facie case
for discrimination or retaliation. United Slates Postal Service Bd. OfGovernors v. Az'kens,

460 U.S. 711, 715 (1983) (“Where the defendant has done everything that would be

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required of him if the plaintiff had properly made out a prima facie case, whether the
plaintiff really did so is no longer relevant.”); Brady v. Offl`ce Ofthe Sergeant atArms, U.S.
House OfRepresentatl`\/es, 520 F.3d 490, 493 (D.C. Cir. 2008); Jones v. Bemanke, 557 F.3d
670, 678 (D.C. Cir. 2009).

Once the employer asserts a legitimate, non-discriminatory or non-retaliatory reason
for the action challenged, the only relevant inquiry is whether the employee has put forth
sufficient evidence for a reasonable jury to conclude that the employer’s proffered
explanation is a mere pretext and the employer intentionally discriminated or retaliated
against the employee. Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015); Vatel, 627 F.3d
at 1247. Summary judgment must be granted for the defendant if the plaintiff fails to
“produce sufficient evidence that would discredit [the employer’s proffered explanation]
and show that the actions were retaliatory” or discriminatory Baloch v. Kempthorne, 550
F.3d 1191, 1200 (D.C. Cir. 2008).

II. Ranowsky Fails to Present Sufficient Evidence That Her Termination Was
the Result of Age or Gender Discrimination.

Ranowsky alleges that her termination as Deputy Counsel on November 28, 2014
was the result of unlawful age and gender discrimination Am. Compl., Cts. l and III
[Dkt. # 15]. Whether or not Ranowsky has established a prima facie case of either age or
gender discrimination, Amtrak has nevertheless offered evidence that her termination was
the product of a legitimate, non-discriminatory decision_i.e., that Amtrak Inspector
General Tom Howard lost confidence in the Office of Counsel and in Ranowsky

specifically and felt the need to take the office in a different direction. Defs.’ SOF 11 20;

Howard Dep. at 152:22-153:2; Amtrak’s Resps.’ To Pl.’s lnterrogs., No. 6 [Dkt. # 31-7].
In February 2014, Howard became the Amtrak lnspector General and began to assess the
structure and staffing of lnspector General’s office and it’s Office of Counsel. Defs.’ SOF
1111 12, 13; Howard Dep. at 2018-11, 32:8-18, 53:22-54:8. Howard testified that, based on
his professional interactions with Ranowsky, he doubted the reliability of her legal advice,
believed that she was disrespectful in her communications with him, and found her
unhelpful on specific OIG projects. Defs.’ SGF,1111 20-23; Howard Dep. at 63:5-64:22;
15811-15; 169:18-171:7. Because of this loss of confidence, Howard terminated
Ranowsky in November 2014. Defs.’ SOF 1 20; 11/18/14 Termination Letter.

To support her claim for age discrimination, Ranowsky relies primarily on the fact
that her duties were assumed by two lawyers who were younger than her. Nadine Jbaili, a
younger female attorney, was assigned to temporarily assume Ranowsky’s responsibilities
and was eventually made Associate Counsel in the Office of Counsel. Defs.’ SOF 1111 39-
40, 42; Howard Dep. at 132:9-133214; 202:1-14. Frank Mazurek, a younger male
attorney, was ultimately hired to replace Ranowsky as the permanent Deputy Counsel.
Defs.’ SOF 1111 55-56; Winters Decl.11 7 [Dkt. # 31-12].

The fact that Ms. Ranowsky was replaced by younger attorneys may support an
inference of age discrimination, but it is insufficient to establish discrimination by itself.
See Vatel v. All. ofAuto. Mfrs., 679 F. Supp. 2d 15, l7 (D.D.C. 2010) (Leon, J.) (holding
that replacement by employee outside protected class may support inference of
discrimination, but does not establish discrimination by itself), aff’a’, 627 F.3d 1245 (D.C.

Cir. 2011). Furthermore, any inference of discrimination is undercut by the fact that

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Ranowsky was fired by Amtrak lnspector General Howard, who is the Same age as
Ranowsky. Defs.’ SOF 1111 64-65; Howard Dep. at 1916-7. Courts in our District have
repeatedly held that a decision-maker’s inclusion in the same protected class as the
terminated plaintiff cuts against any inference of discrimination See Gonda v. Donohoe,
79 F. Supp. 3d 284, 296 (D.D.C. 2015) (explaining that decision-maker’s age_over forty
years old_cut against an inference of age discrimination),' Perry v. Shz`nsekz`, 783 F. Supp.
2d 125, 138 (D.D.C. 2011) (holding that decision-maker’s membership in the same
protected class as the plaintiff “weighs further against an inference of discrimination”).

To bolster her age discrimination claims, Ranowsky offers evidence that Gilmore
asked her about her retirement plans before she was terminated, and that Amtrak engaged
in succession planning in the months before she lost her job. Ranowsky Dep. 154:6-15;
Gilmore Dep. at 131:4-132:6 [Dkt. # 39-5 (Under Seal)]. But that evidence is woefully
insufficient for a jury to conclude that Howard was motivated by ageism when he
terminated her. There is nothing discriminatory or suspicious about an employer asking
an employee about retirement plans. Joyce v. Ofc. ofArchiIect ofthe Capz`tol, 106 F. Supp.
3d 163, 174-75 (D.D.C. 2015); Shz`pman v. Vz`lsack, 692 F. Supp. 2d 113, 118 n.5).
Furthermore, there is nothing even vaguely discriminatory about a company engaging in
succession planning, as companies are required to prepare for change and maintain
operational continuity. See Boston v. Blue Cross & Blue Shi`eld ofKan., [nc., 438 F. App’x
763, 767 (10th Cir. 2011).

Ranowsky presents even less evidence that her termination was motivated by gender

discrimination To support her claims, Ranowsky relies primarily on the fact that she was

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ultimately replaced as Deputy Counsel by a male attorney. But this evidence is undercut
by the fact that she was partially replaced in her duties by Nadine Jbaili, a female, which
weighs against an inference of gender discrimination Murray v. Gilmore, 406 F.3d 708,
715 (D.C. Cir 2005) (“[A] replacement within the same protected class cuts strongly
against any inference of discrimination.”); see also Brown v. Broa’y, 199 F.3d 446, 451
(D.C. Cir. 1999) (explaining that “any sexual discrimination claim would be baseless
because two of the three employees selected . . . were women”). Even more significantly,
Ranowsky’s male supervisor in the Office of Counsel was terminated on the same day as
Ranowsky. Ranowsky Dep. at 147:2-4; Howard Dep. at 19:22~20:16, 120115~121:2. Not
only does this lend further support to Howard’s claim that he fired her as part of an effort
to take the Counsel’s Office in a different direction, it makes it difficult for a reasonable
jury to conclude that her termination was driven by her gender. See Gilberr v. Babbl`tt, No.
92-cv-ll24, 1993 WL 468465, at *5 n.5 (D.D.C. Oct. 29, 1993) (holding that female
plaintiff’ s allegation of gender discrimination was “preposterous” where the evidence
showed that male employees were subject to the same punishment for the “similar
infractions”).

ln her attempt to show that Howard’s asserted reasons for firing her were pretextual,
Ranowsky makes much of the fact that Gilmore coded her termination as a “reduction in
force” on a personnel action form to argue that Howard’s asserted reasons for firing her
were pretextual and that her termination was actually motivated by discrimination
Ranowsky is certainly correct that a jury can conclude that an employer’s asserted reasons

are pretextual when it offers shifting and inconsistent explanations for its action

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Sw. Merclz. Corp. v. NLRB, 53 F.3d 1334, 1344 (D.C. Cir, 1995); Allen v. Johnson, 795
F.3d 34, 40 (D.C. Cir. 2015). However, the proper focus is on the decision-makers
asserted reasons. Montgomery v. Gotbawn, 920 F. Supp. 2d 73, 81 (D.D.C. 2013)
(explaining that pretext arguments turn on a “decision-maker’s shifting and inconsistent
explanations”) (internal quotation marks omitted); Johnson v. Dist. of Columbia, 99 F.
Supp. 3d 100, 109 (D.D.C. 2015) (“Johnson does not allege that anyone involved in the
decision to terminate him offered inconsistent reasons for doing so.” (emphasis added)).
Howard, who made the decision to terminate Ranowsky, has consistently stated that he
fired her because he lost confidence in her. Gilmore, who did not make the decision to fire
Ranowsky, testified that he coded the termination as a “reduction in force” simply so that
Ranowsky would be entitled to a severance package. Gilmore Dep. at 33:12-18; 54:19-
55:4. This discrepancy between Howard’s asserted reasons and a human resources form
he did not prepare is not sufficient for a jury to conclude that Howard was somehow
motivated by ageist or sexist bias.

Even drawing all justifiable inferences in her favor, Ranowsky has failed to present
sufficient evidence that would permit a reasonable jury to conclude that she was terminated
because ofher age or her gender, rather than as a result of Howard’s loss of confidence in
her performance as Deputy Counsel. As a result, defendants are entitled to judgment on

her claims related to her termination in November 2014.

III. Plaintiff Fails to Present Sufficient Evidence that Amtrak’s Refusal to
Rehire Her in 2015 Was Motivated By Discrimination or Retaliation.

In 2015, Ranowsky applied for the position of Deputy Counsel in the Amtrak OIG,

ll

and for a temporary contract attorney position in Amtrak’s corporate law department
Defs.’ SOF 1111 47, 58; Ranowsky Dep. at 191 :5. She was neither interviewed nor hired for
either job. Id. 11 59; Herinan Decl. 11 3. She alleges that Amtrak’s refusal to interview or
hire her was driven by age and gender discrimination, and in retaliation for her filing an
EEOC Charge ofDiscrimination in January 2015. Am. Compl., Cts. 1, 111, and V.

Amtrak has offered legitimate, non-discriminatory, and non-retaliatory reasons for
declining to interview Ranowsky for either position Kevin Winters, the Amtrak Deputy
lnspector General/Counsel, was responsible for hiring the new Deputy Counsel in 2015.
Defs.’ SOF 11 45; Winters Decl. 11 2. He testified in his deposition that he decline to
interview Ranowsky because she had previously held the same position and had been
terminated because the lnspector General lost confidence in her performance Defs.’ SOF
1111 49, 50; Winters Dep. at 80:1-9. William Hermann, the corporate law department’s
Managing Deputy Counsel, decided that Ranowsky should not be interviewed for the
temporary contract attorney position because he did not believe she would be a positive
contribution to the law department, a conclusion that he reached based on his own personal
interactions with her when they both worked in the law department and when she was
Deputy Counsel for the OIG. Defs.’ SOF 1111 59, 60; Hermann Decl. 11 3.

Once again, Ranowsky fails to present sufficient evidence to show that the refusal
to hire her in either position was discriminatory or retaliatory. With respect to
discrimination, she relies on much the same evidence she did in arguing that her
termination was unlawful_that she was replaced by Deputy Counsel Frank Mazurek. As

an initial matter, this argument only reaches the refusal to rehire her as Deputy Counsel; it

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has no bearing on the contract attorney position More importantly, as discussed above,
an employee’s replacement by a younger person of a different gender is patently
insufficient to rebut an employer’s asserted non-discriminatory reasons. As to her
retaliation claim, Ranowsky can only point to the fact that she filed an EEOC charge before
Amtrak decided not to rehire her. But this is also insufficient, as our Circuit has clearly
held that the mere fact that an employer’s adverse action follows closely after an
employee’s assertion of rights_here, the filing of an EEOC charge_will not overcome
the presumption that the employer’s asserted reasons are valid. Allen v. Johnson, 795 F.3d
34, 47 (D.C. Cir. 2015). As a result, defendants are entitled to judgment on Ranowsky’s
claims of discrimination and retaliation with respect to the refusal to rehire her in 2015.

IV. Plaintiff’s Claims Against Howard and Gilmore for “Aiding and
Abetting” Violations of DCHRA Fail as a Matter of Law.

Lastly, Ranowsky alleges that Howard and Gilmore individually “aided and
abetted” Amtrak’s discriminatory and retaliatory conduct against her. Ain Compl., Cts.
11, IV, and VI. However, an individual cannot be held liable for aiding and abetting
discriminatory or retaliatory conduct where the organization itself did not engage in
discriminatory or retaliatory conduct. See Gaujaca v. EDF, Inc., 601 F.3d 565, 576 (D.C.
Cir. 2010) (holding that an individual could not aid and abet unlawful discrimination where
the organization did not engage in discrimination). Because Amtrak is entitled to summary
judgment on Ranowsky’s substantive discrimination and retaliation claims, then Howard
and Gilmore are entitled to summary judgment on her aiding and abetting claims as a matter

of law.

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CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is
GRANTED. An Order consistent with this decision accompanies this Memorandum

Opinion.

KZW

RICHARD J.LU
United States District Judge

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