Copeland v. Arklay LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANNETTE COPELAND,

Plaintiff,

v. Case No. 15-cv-02110 (CRC)

ARKLAY LLC,

Defendant.

MEMORANDUM OPINION

Annette Copeland claims that her former employer, Arklay LLC, discriminated against

her because of her race in violation of 42 U.S.C. § 1981. Specifically, she alleges that Arklay

terminated her because she is African American, that it maintained a racially hostile work

environment, and that it engaged in unlawful retaliation.

No reasonable factfinder could side with Copeland on any of these claims. There is no

evidence suggesting that Copeland’s termination was racially motivated. Assuming that her

coworkers’ alleged harassment was sufficiently severe to be actionable, there is no indication

that Copeland’s supervisor responded to it unreasonably. And because the undisputed facts show

that Copeland did not engage in protected conduct, she has no viable retaliation claim. The

Court will therefore grant summary judgment in favor of Arklay.

I. Background

Arklay provides network-security support for defense agencies and specializes in

assisting those agencies in classified operations. The firm is managed solely by its CEO and

owner, Marc Pecot. Pecot hired Copeland in February 2013 to work as a full-time network
administrator, paid hourly. Def.’s Mot. Summ. J. Ex. B (“Pl.’s Dep.”), at 22:15–17, 32:9–33:4.

During her tenure, Copeland was the company’s sole African American employee. Id. 223:7–9.

During Copeland’s tenure, Arklay was working on a subcontract with BAE Systems,

which in turn was a contractor for the Defense Intelligence Agency (“DIA”). The contract

required Arklay’s employees to work at the “Threat Mitigation Center,” a DIA facility within

Bolling Air Force Base in Washington, D.C. Copeland worked in a cubicle in a shared

workspace with the four other Arklay employees who were assigned to the BAE subcontract.

Her primary responsibility was administering a DIA network called ITACT.

Copeland alleges several instances of workplace harassment while working on the BAE

contract. Most of the purported incidents involved two Arklay data engineers, David Chesher

and Dean Gull. Copeland’s recounts that Chesher “frowned at [her] the whole time” during her

job interview, Pl.’s Dep. 215:1, and that Chesher, Gull, and the other employees were generally

unwelcoming and excluded her from conversations, id. at 215:2–4, 8–20. She claims to have

reported their behavior to Pecot during her first week in a closed-door meeting. Id. at 215:4–11.

Copeland further alleges that, a few months after she was hired, Chesher—who sat in a

nearby cubicle—temporarily locked her out of the ITACT network. Copeland reported this

incident to Pecot in an email dated June 6, 2013. Pl.’s Dep. Ex. 19. In that message, Copeland

implicated Gull in the lockout scheme. Id. at 1. She also mentioned that the pair would often

look at her computer screen—apparently Gull was “constantly peering over the cubicle or

standing and staring over at [her] screen.” Id. At the end of the message, Copeland proffered a

motive for her coworkers’ actions:

Dean [Gull] and Dave [Chesher] have made it known in the office that I don’t know what
I am doing. Which is quite insulting. Whenever they talk about me, they do it openly in
front of [other employees.] So, I take it they want me out of there, especially Dean. And
what he wants, he gets. That’s how I’ve seen it.

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Id. Ex. 21. As Copeland explained in her deposition, she did not indicate to Pecot that Gull or

Chesher were motivated by her race. Pl.’s Dep. 155:9–21.

Pecot responded to Copeland’s message a few hours later, explaining that he suspected

the lockout was merely a system error, but indicating that he would investigate further if the

same problem happened again. Id. Ex. 21. Pecot later explained in his deposition that users,

including him, were regularly locked out of the system. Def.’s Mot. Summ. J. Ex. F, at 98:7–21.

As to Copeland’s accusation that Gull and Chesher sought to undermine her, Pecot explained

that he had found the team “reasonable and considerate” and that no one had approached him

with “issues regarding [her] performance.” Pl.’s Dep. Ex. 21. Pecot was willing to approach the

team about an “uncomfortable working environment,” but, noting that Arklay had only six days

left working on the BAE contract, he expressed hesitation to use those final days “focusing our

efforts to resolve a team dynamic that will shortly become irrelevant.” Id.

The BAE contract ended in June 2013, and Arklay furloughed its employees for about

three weeks while Pecot sought more work for the company. Def.’s Mot. Summ. J. Ex. A

(“Pecot Decl.”), at ¶ 17; Pl.’s Resp. to Stmt. Material Facts ¶ 51. In early July, Arklay obtained a

subcontract with another DIA contractor. Pecot assigned Copeland to be the network

administrator for this contract. For the first few weeks of the contract, Copeland, Chesher, Gull,

and two other employees worked at Bolling, in the same location as they had for the BAE

contract. The DIA then decided to relocate the operation to a new facility in Landover

Maryland. On August 28, Copeland told Pecot by email that she “will not be moving with you

all to the [new facility]” because the Maryland facility was “much too far, [and] even if I took

trains it would take me too long to get to my daughter in an emergency.” Pl.’s Dep. Ex. 5. She

formalized her resignation the next day. Id. Ex. 4. In response, Pecot said that he understood her

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decision and offered that, if she did not have another job lined up, she could work part-time work

until her replacement began. Id. Ex. 9. Copeland accepted, and Pecot told her that, while part-

time employees typically were ineligible for health insurance, he would maintain hers so that she

did not “have to worry.” Id. Ex. 10.

Copeland worked for Arklay part-time beginning August 29, 2013. Pl.’s Dep. 57:17–

58:13. During some of this period, Pecot allowed Copeland to work remotely at a facility in

Reston, Virginia, which was nearer to her home. Pecot Decl. ¶ 25. Pecot also gave her a

substantial raise—from $62.50 to $70.30 per hour—because her part-time status reduced

Arklay’s overhead costs. Pl.’s Dep. Ex. 14.

Copeland alleges further incidents of harassment during this period of part-time work.

Her primary accusation is that Gull and Chesher regularly peered at her monitor and continued to

interfere with her access to the computer systems. Pl.’s Dep. 38:18–39:20. She did not report

these incidents to Pecot. Id. 101:15–102:20. Rather, she claims that in October she informed

Pamela Prewitt, a government employee who worked at the DIA facility, and enlisted Prewitt’s

help to try to catch the pair hacking into her system on subsequent occasions. Id.; see also Pl.’s

Opp. Ex. 1, at 6 (EEOC letter). Copeland believes that Pecot was aware of her decision to report

Gull and Chesher’s behavior to Prewitt, though she acknowledges that she did not herself inform

Pecot of that fact. Pl.’s Dep. 162:19–163:3.

Pecot originally planned to terminate Copeland’s position that November, but, finding

that he had billable hours to fill due to other employees’ vacations, he asked Copeland to stay on

until those hours were exhausted. Pecot Decl. ¶ 29. By July 2014, those hours were complete,

and Pecot informed Copeland that her last day with the company would be September 20,

2014—the last day of Arklay’s DIA subcontract. As Pecot explained in a July 31 email to

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Copeland, the position of network administrator was being eliminated at the end of the current

contract. Pecot Decl. Ex. 5.

A few months after her tenure with Arklay ended, Copeland filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”) alleging that Arklay discriminated

against her on the basis of race and sex, and that it engaged in illegal retaliation. Pl.’s Opp. Ex.

4; see also id. Ex. 1. After receiving a right-to-sue notice from the EEOC, Copeland filed this

action. Compl. ¶ 26. Arklay moved for summary judgment, and the motion is now ripe for

adjudication.

II. Standard of Review

Granting a motion for summary judgment is proper 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 movant bears the burden to demonstrate an “absence of a

genuine issue of material fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The Court must accept as true the nonmovant’s evidence and draw all reasonable inferences in

her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmovant may not,

however, rely on “mere allegations” or conclusory statements. Veitch v. England, 471 F.3d 124,

134 (D.C. Cir. 2006).

III. Analysis

A. Title VII Claims

Though Copeland originally brought claims under both Title VII and 42 U.S.C. § 1981,

she now concedes in her opposition to Arklay’s motion that Arklay did not employ more than

fifteen people in any month during the years of her employment, and thus does not qualify as an

“employer” for purposes of Title VII. 42 U.S.C. § 2000e(b); see Pl.’s Opp. 10–11; Pl.’s Resp. to

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Stmt. Material Facts ¶ 110. The Court will therefore grant summary judgment for Arklay with

respect to Copeland’s claims under Title VII.

B. Section 1981 Claim

Copeland’s remaining claims are those brought under 42 U.S.C. § 1981, which protects

the right of “[a]ll persons” to “have the same right . . . to make and enforce contracts.” 42 U.S.C.

§ 1981(a). An employer violates § 1981 if it discriminates on the basis of race in “the making,

performance, modification, and termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b); see Carney v.

Am. Univ., 151 F.3d 1090, 1092–93 (D.C. Cir. 1998).

Copeland alleges that Arklay violated § 1981 by (1) terminating her because of her race,

(2) maintaining a hostile work environment because of her race, and (3) retaliating against her

for the exercise of statutorily protected conduct with respect to race-based discrimination. The

Court will address these allegations in turn.

1. Discriminatory Termination

Copeland alleges that she was terminated from her position based on her race. Compl. 6

(Count V). In evaluating these sorts of discrimination claims under § 1981, courts use the three-

step framework established for race-discrimination claims under Title VII. See Carney, 151 F.3d

at 1092–93 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973)). First, the

plaintiff must make a prima facie case by establishing that (1) she is a member of a protected

class, (2) she suffered an adverse employment action, and (3) “the unfavorable action gives rise

to an inference of discrimination (that is, an inference that his employer took the action because

of [her] membership in the protected class).” Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir.

2002). The burden then shifts to the employer “to articulate ‘some legitimate, nondiscriminatory

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reason’ for the employment action, which the plaintiff can rebut by proving, under a

preponderance of the evidence standard, that the employer's justification is merely pretext for

discrimination.” Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014) (quoting McDonnell

Douglas, 411 U.S. at 802–04). “Although the burden of persuasion always remains with the

plaintiff, to survive summary judgment the plaintiff need only raise a genuine issue of material

fact with respect to each element of the McDonnell Douglas framework.” Carney, 151 F.3d at

1093.

The D.C. Circuit has explained that, where an employer at the summary judgment stage

asserts a legitimate, nondiscriminatory justification for an adverse action, “the question whether

the employee actually made out a prima facie case is ‘no longer relevant.’” Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (quoting St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 510 (1993)). Rather, a court in that posture “must resolve 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 . . . ?” Id. at 494.

Here, Arklay has asserted a legitimate, nondiscriminatory reason for terminating

Copeland: it is undisputed that her temporary position was eliminated. Pecot Decl. Ex. 5; Pl.’s

Resp. to Stmt. of Material Facts ¶ 104. And assuming that Copeland has made out a prima facie

case of discrimination, she has not produced sufficient evidence for a reasonable juror to

conclude that this nondiscriminatory reason was pretextual.

A plaintiff can create a material dispute of fact as to pretext in a variety of ways. If

Copeland could introduce direct evidence that race really drove the decision—for example, a

racially charged comment—her claim would almost certainly survive summary judgment.

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See, e.g., Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013). Copeland concedes

that no such evidence exists here. See Pl.’s Dep. 222:11–19.

A plaintiff can also sustain a discrimination claim against an employer’s assertion of a

nondiscriminatory reason using circumstantial evidence—for example, evidence undermining

the employer’s proffered reason or showing an employer’s generally biased attitude. See

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). The record here contains no such

evidence. Indeed, Copeland in her deposition offers an express concession that Pecot did not

terminate her because of her race. In Copeland’s view, Pecot was “upset that I spoke with Pam

[Prewitt], and had Pam to catch Dave Chesher hacking me,” Pl.’s Dep. 218:15–17, because it

showed that Copeland “wasn’t a team player,” id. 219:11–12. This accusation sounds in a theory

of retaliation, not race-based discrimination (though, as explained below, it is not sufficient

evidence of illegal retaliation either).

In any event, insofar as Copeland relies on her coworkers’ alleged misconduct to imply

bias on Pecot’s part—absent any evidence of Pecot’s bias—she invites the factfinder “to go far

beyond reasonable inference and into the realm of unfettered speculation.” Holcomb, 433 F.3d

at 901; cf. Dunaway v. Int’l Brotherhood of Teamsters, 310 F.3d 758, 764–66 (D.C. Cir. 2002)

(in reversing summary judgment for employer, noting that plaintiff’s supervisor had made

derogatory comments to employees); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1299–1300 (D.C.

Cir. 1988) (en banc) (in finding that record supported pretext, focusing on inconsistency between

employer’s explanation that applicant was unqualified and employer’s actual treatment of

applicant). Thus, the Court will grant summary judgment against Copeland’s claim that she was

terminated because of her race.

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 2. Hostile Work Environment

Copeland also contends that Arklay maintained a hostile work environment because of

her race. Specifically, she alleges that her coworkers harassed her by locking her out of her

computer system and generally giving her the cold shoulder, and that Pecot did not adequately

police their behavior. Pl.’s Opp. at 12.

To prevail on a hostile work environment claim, the plaintiff must show that (1) she is a

member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment

occurred because of her protected status; (4) the harassment was severe to a degree which

affected a term, condition, or privilege of employment, and (5) the employer may be held liable

for the harassment. See Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122–23 (D.C. Cir.

2002). To be actionable, harassment must be “sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Ayissi-

Etoh, 712 F.3d at 577 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

Here, even assuming that Copeland could show sufficiently severe or pervasive

harassment, and that the harassment was driven by race—two long-shot assumptions, given the

record—no reasonable factfinder could conclude that Arklay was liable for that harassment. As

the Supreme Court has explained in the Title VII context, “an employer’s liability for such

harassment may depend on the status of the harasser.” Vance v. Ball State Univ., 133 S. Ct.

2434, 2439 (2013). “If the harassing employee is the victim’s co-worker,” as opposed to her

supervisor, “the employer is liable only if it was negligent in controlling working conditions.”

Id. The alleged incidents of harassment here were perpetrated by Copeland’s coworkers, not her

supervisors, and thus Arklay can be liable for that harassment only if it “knew or should have

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known of the harassment and failed to implement prompt and appropriate corrective action.”

Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999).

Copeland admits that she informed Pecot of the alleged lockout and snooping only in one

instance: her May 2013 email. Pecot responded that he would be willing to investigate if it

occurred again, but that he believed the lockout was the result of a system error. He reiterated in

his deposition that the problem happened regularly and thus that a network lockout raised no red

flags. Moreover, in her message to Pecot describing the lockout incident, Copeland made no hint

that Chesher or Gull were motivated by racial bias—only that she suspected that they believed

her to be incompetent. The same is true of the closed-door meeting where Copeland apparently

told Pecot that none of her coworkers were willing to show her around the office.

Section 1981, like Title VII, does not impose a generalized duty on employers to police

the social conditions of the workplace. See Oncale v. Sundowner Offshore Servs., Inc., 525 U.S.

75, 81 (1998). Rather, Arklay can be held vicariously liable for coworkers’ harassment only if it

ignored conduct that it perceived (or reasonably should have perceived) as violating § 1981, and

nothing in Copeland’s communications to her supervisor raised the specter of unlawful bias. As

a result, no reasonable factfinder could believe that Pecot unreasonably handled Copeland’s

reports about her coworkers’ behavior. The Court will grant summary judgment in favor of

Arklay on Copeland’s hostile work environment claim.

3. Retaliation

Finally, Copeland alleges that Arklay terminated her in retaliation for taking actions

protected by statute. To establish a prima facie case of retaliation, Copeland must show that she

“engaged in protected activity—such as filing an EEOC complaint—and that [her] employer

took an adverse employment action against [her] because of that activity.” Ayissi-Etoh, 712

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F.3d at 578. If, for example, an employee complained to her supervisor about race

discrimination, it would be unlawful for the employer to respond by firing her. See Broderick v.

Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006).

Nothing of the sort happened here. There is no plausible allegation, let alone evidence,

showing that Copeland engaged in protected activity. Copeland’s EEOC complaint was filed

several months after her termination. Compl. ¶ 26. She did tell Pecot in May 2013 that Chesher

and Gull locked her out of the network and were unkind toward her. But “[w]hile no ‘magic

words’ are required” to render an internal complaint protected, “the complaint must in some way

allege unlawful discrimination, not just frustrated ambition.” Broderick, 437 F.3d at 1232. No

reasonable factfinder would think Copeland’s description of her coworkers’ conduct suggested

unlawful harassment.

Similarly, Copeland’s decision to inform Pamela Prewitt of Chesher and Gull’s alleged

behavior was not protected. Prewitt was a DIA employee with no employment relationship to

Arklay. Even if Pecot was aware of Copeland’s decision to report her coworkers to Prewitt,

nothing that she reported would plausibly suggest to Pecot that she was complaining about race-

based harassment. The Court will grant summary judgment against Copeland’s claim that

Arklay engaged in unlawful retaliation.

IV. Conclusion

For the foregoing reasons, the Court will grant [25] Defendant Arklay LLC’s Motion for

Summary Judgment. A separate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date: September 19, 2017

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