Haynes v. Dc Water is Life

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LARRY HAYNES, :
:
Plaintiff, :
:
v. : Civil Action No. 16-2086 (CKK)
:
DC WATER IS LIFE, :
:
Defendant. :

MEMORANDUM OPINION

Plaintiff Larry Haynes brings this action against his former employer, the District of

Columbia Water and Sewer Authority (“DC Water”), under the Americans with Disabilities Act

(“ADA”), see 42 U.S.C. 12101 et seq. (Count I), Title VII of the Civil Rights Act of 1964 (“Title

VII”), see 42 U.S.C. § 2000e et seq. (Count II), 42 U.S.C. § 1981 (“Section 1981”) (Count III),

the Age Discrimination in Employment Act (“ADEA”), see 29 U.S.C. § 623 et seq. (Count IV),

and the District of Columbia Human Rights Act (“DCHRA”), see D.C. Code § 2-1401 et seq.

(Count V). He also brings a breach of contract claim (Count VI). Plaintiff demands declaratory

and injunctive relief, compensatory and punitive damages, litigation expenses and reasonable

attorney’s fees.

This matter is before the Court on Defendant District of Columbia Water and Sewer

Authority’s Motion for Summary Judgment, ECF No. 18. For the reasons discussed below, the

Court concludes that plaintiff’s claims under the ADA and the DCHRA are time-barred, that

plaintiff failed to exhaust his age and race discrimination claims under the ADEA and Title VII,

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that DC Water did not violate Section 1981 by purposely discriminating against plaintiff on the

basis of his race, and that plaintiff fails to state a breach of contract claim. Accordingly, the

Court will grant DC Water’s motion in its entirety.

I. BACKGROUND

Plaintiff is a 55-year old African American man, Pl.’s First Am. Compl., ECF No. 17

(“Am. Compl.”) ¶ 4, who is dyslexic, see id. ¶ 9. DC Water “is an independent authority of the

District of Columbia that provides retail water and wastewater sewer service to the District of

Columbia.” Id. ¶ 5. Its predecessor entity, the District of Columbia Department of Public

Works, Water and Sewer Administration, hired plaintiff in 1988 as an Electrical Equipment

Repairer 11/CDL. Id. ¶ 6.

An Electrical Equipment Repairer 11/CDL “perform[ed] a wide range of electrical duties

independently under the supervision of an electrical foreman.” Def. District of Columbia Water

and Sewer Auth.’s Mem. of P. & A. in Support of its Mot. for Summ. J., ECF No. 18-1 (“Def.’s

Mem.”), Decl. of Charles Sweeney in Support of Def. District of Columbia Water and Sewer

Auth.’s Mot. for Summ. J., ECF No. 18-3 (“Sweeney Decl.”) ¶ 8. 1 Each person in this position

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Plaintiff deems Mr. Sweeney’s declaration inadmissible hearsay evidence which the Court
should not consider. See, e.g., Statement of Disputed Material Facts in Support of Pl.’s Opp’n to
Def.’s Mot. for Summ. J., ECF No. 21-1 ¶¶ 4-7. The Court disagrees. A “declaration used to
support . . . a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the . . . declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4). Mr. Sweeney is the Director of Distribution and Conveyance
Systems at DC Water, Sweeney Decl. ¶ 2, and was involved with the planning an execution of
the reorganization and consolidation of the Departments of Sewer, Water and Sewer Pump
Maintenance into a single Department of Distribution and Conveyance Systems, id. ¶ 4. These
are the circumstances under which plaintiff’s claims arose, about which Mr. Sweeney has
personal knowledge and about which Mr. Sweeney is competent to testify. DC Water “is not
required to produce evidence in a form that would be admissible at trial” at the summary
judgment stage, as long as “the evidence [is] capable of being converted into admissible
evidence.” Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C.
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was “only required to hold an apprentice electrician’s license and a Commercial Driver’s License

[(CDL)].” Sweeney Decl. ¶ 8; see id., Ex. 1 (Job Description, Electrical Equipment Repairer

11/CDL) at 2. “Throughout his employment with DC Water, [plaintiff] had an [a]pprentice

[e]lectrician[’s] license and a Class B [CDL.] ” Am. Compl. ¶ 6.

In or about 2011, DC Water planned to reorganize and consolidate its “Department of

Water, Department of Sewer, and the Water and Sewer Pump Maintenance Branch into one

department called the Department of Distribution and Conveyance Systems.” Sweeney Decl. ¶

4. Management identified positions to abolish and identified “new positions . . . to create to

replace the abolished positions and/or meet new organizational requirements.” Id. ¶ 6. One of

the positions slated for abolishment was the Electrical Equipment Repairer 11/CDL position. Id.

¶ 7. DC Water announced the reorganization in 2014. Id.

It came to light during the reorganization process that District of Columbia licensure

requirements for electricians required direct supervision over “employees holding only an

apprentice electrician’s license [by] a person holding a master electrician’s license[.]” Id. ¶ 9.

DC Water sought guidance from the District of Columbia Department of Consumer and

Regulatory Affairs, see id., which advised:

Pursuant to District law, “[a]n apprentice electrician shall work only
under the direct personal supervision and control of a licensed
master electrician or licensed master electrician specialist.” See
D.C. Official Code §47-2853.92(a) (2010 Repl.). Accordingly, an
apprentice electrician employed by [DC Water] must be directly
supervised, which means that a qualified individual must be present

Cir. 2000) (emphasis in original). The Court is satisfied that the statements set forth in Mr.
Sweeney’s declaration are capable of being converted into admissible, non-hearsay evidence if
he were to testify at trial. See Sabre Int’l Sec. v. Torres Advanced Enter. Sols., LLC, 72 F. Supp.
3d 121, 129 n.9 (D.D.C. 2014) (finding that declarant’s “statements . . . are capable of being
converted into admissible, non-hearsay, evidence when he testifies at trial, as [plaintiff] has
indicated that [the declarant] will do.”).

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 to observe and guide the work of an apprentice. Further, District
law specifies that a master electrician or master electrician specialist
must provide the necessary supervision. Therefore, a licensed
journeyman electrician cannot supervise an apprentice. Thus, to
comply with District law, any Electrical Foreman or General
Foreman employed by [DC Water who] supervises the performance
of electrical work must be licensed as a master electrician or master
electrician specialist, as only a licensed master is legally authorized
to assume responsible charge over the performance of electrical
work in the District.
Id., Ex. 2 (Letter to Stephanie Black, Manager, Learning and Development, DC Water, from

Pamela Hall, Program Support Specialist, D.C. Board of Industrial Trades, Occupational and

Professional Licensing Division, Department of Consumer and Regulatory Affairs, dated March

18, 2015) at 2-3 (emphasis in original).

“DC Water did not employ a sufficient number of master electricians to directly

supervise the electricians with apprentice electrician[’s] licenses.” Id. ¶ 10. Management

determined that, “[g]iven the financial and practical objectives of the planned reorganization, it

was not practical or reasonable for DC Water to hire additional master electricians to

individually oversee each Electrical Equipment Repairer 11/CDL.” Id. Instead, DC Water

“change[d] the minimum license qualifications for the Electrical Equipment Repairer 11/CDL

position, and create[d] the Industrial Journeyman Electrician position to replace it.” Id. ¶ 11.

Each Industrial Journeyman Electrician was required to have a journeyman electrician’s license

and a CDL. Id. ¶ 12; see id., Ex. 3 (Job Description, Industrial Journeyman Electrician) at 2.

American Federation of Government Employees Local 2553 (“Union”) represented

employees in the Electrical Equipment Repairer 11/CDL positions. See id. ¶ 13. 2 Pursuant to

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Mr. Sweeney’s declaration identifies the union as AFL-CIO Local 2553. Sweeney Decl. ¶¶
13-14. The exhibits to his declaration identify the union as the American Federation of
Government Employees Local 2553. See id., Ex. 8 (Memorandum of Agreement Regarding the
Department of Distribution and Conveyance Systems) & Ex. 10 (Working Conditions
Agreement Between DC Water and American Federation of Government Employees Local
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the collective bargaining agreement (“CBA”), DC Water notified the Union of its “decision that

Electrical Equipment Repairer 11 employees needed a journeyman[] electrician[’s] license” by

hand-delivering a letter to the Union’s president on July 11, 2014. Id. ¶ 14. In addition, DC

Water outlined the reorganization in a PowerPoint presentation to Union representatives on that

same date. Id. ¶ 15. “[T]he Union requested effects bargaining on July 16, 2014, id. ¶ 16, and

bargaining began on or about August 26, 2014, id. ¶ 18. 3 “Among the topics discussed was the

requirement that . . . Electrical Equipment Repairer 11/CDL employees obtain a journeyman

electrician’s license to qualify for the new position” of Industrial Journeyman Electrician. Id.

The Union and DC Water disagreed about the length of time within which an Electrical

Equipment Repairer 11/CDL was to obtain a journeyman electrician’s license. The Union

proposed that an “employee[] holding an apprentice electrician’s license be permitted a total of

four (4) years to obtain [a] journeyman electrician’s license.” Id. ¶ 19. DC Water rejected this

proposed timeframe because the journeyman electrician’s license requirement was a legal

requirement. Id. Ultimately DC Water and the Union entered into a Memorandum of

Agreement (“MOA”), and with respect to the Electrical Equipment Repairer 11 positions, the

parties agreed:

Current DC Water bargaining unit employees[] in the position of
Electrical Equipment Repairer possessing a DC Apprentice
Electrician[’s] license selected for Industrial Journeyman
Electrician and Industrial Specialist Electrician positions shall have
until March 31, 2015 to acquire the required DC Journeyman
Electrician[’s] license. Beginning September 2, 2014, any

2553). The Court presumes that the correct union is American Federation of Government
Employees Local 2553.
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In the interim, the Union requested “additional information about the potential effects of the
reorganization on the Union’s members,” and DC Water responded in writing. Sweeney Decl. ¶
17; see id., Ex. 6 (Letter to Mustaafa Dozier, Manager, Labor Relations and Compliance, DC
Water, from Barbara B. Hutchinson dated July 16, 2014) and Ex. 7 (Letter to Barbara B.
Hutchinson from Clifford Mustaafa Dozier, Esq., dated July 18, 2014).
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 bargaining unit member in possession of a DC Apprentice license
may participate in training for and testing for the DC Journeyman
Electrician[’s] license. DC Water shall pay for this training.
Employees are expected to test within thirty (30) calendar days of
completing this training. Employees that fail the test may retest so
long as the second test is taken by March 31, 2015.
Id., Ex. 8 (Memorandum of Agreement Regarding the Department of Distribution and

Conveyance Systems dated September 2, 2014) ¶ 4.

The MOA also included agreements with respect to other DC Water employees affected

by the reorganization. For example:

For any AFGE Local 2553 bargaining unit employee in the position
of Utility Systems Operator RW-08, hired into the position of a
Utility Systems Operator I or II, the employee shall have 18 months
to obtain the required certification. Any training shall be paid for
by DC Water. If any employee fails a test at any point during the
eighteen (18) month period [he] shall be allowed to retest at DC
Water’s expense, so long as the retest occurs prior to the conclusion
of the eighteen (18) month period . . . . Provided the employee has
obtained the certification in [his] area of prior work experience
(Distribution or Collections), employees who do not meet a
certification requirement because the testing authority determines
the employee did not perform the requisite number of years of work
in the classification, shall be provided the time needed to meet the
classification requirement.
Id., Ex. 8 ¶ 3.

Notwithstanding the MOA, in October 2014, “the Union initiated an unfair labor practice

grievance under the procedures laid out in Article 58 of the [CBA].” Id. ¶ 23; see generally id.,

Ex. 10 (Working Conditions Agreement Between DC Water and American Federation of

Government Employees Local 2553) at 81-87 (Art. 58, General Grievance and Arbitration

Procedures). The grievance did not delay implementation of the reorganization in November

2014. Id. ¶ 24.

“In the fall of 2014, [plaintiff] was informed that his job title was being changed to

Industrial Journeyman Electrician and that [an] Industrial Journeymen Electrician[ was] required

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to obtain a [j]ourneyman [e]lectrican[’s l]icense.” Am. Compl. ¶ 7. On October 3, 2014, DC

Water proffered a copy of the job description for the Industrial Journeyman Electrician position,

Sweeney Decl. ¶ 25, and plaintiff refused to sign a form acknowledging its receipt, see id., Ex. 9

(Job Description Transmittal). Plaintiff had only six months to obtain a journeyman electrician’s

license, even though “[t]he license generally requires years of coursework and the signature of a

master electrician who supervised the candidate.” Am. Compl. ¶ 8.

Pursuant to the MOA, DC Water provided training for employees converting to the new

Industrial Journeyman Electrician positions. Sweeney Decl. ¶¶ 26-27. Plaintiff began the course

in September 2014. Id. ¶ 26. According to DC Water, plaintiff took a 15-week course ending in

December, 2014. Id. ¶ 28. According to plaintiff, DC Water provided a six-week course at the

end of which he “received a certificate showing that he completed sixty hours of training for the

Journeyman Electrician Examination.” Am. Compl. ¶ 8. However, he “did not believe the

course sufficiently prepared him for the examination,” in part because “the course instructor

admitted that [the] course was designed as a refresher for people who had already passed the test

previously, and it was not meant for first-time test takers.” Id.

“In the fall of 2014, [plaintiff] told various members of human resources . . . that he is

dyslexic and needed additional time and to go to class if DC Water wanted him to obtain a

[journeyman electrician’s] license.” Id. ¶ 9. “They refused to give him the additional time,” id.,

even though “other DC Water electricians, including Caucasian and younger electricians,” were

given 18 months to two years to obtain their licenses, and “some were even allowed to go back

to school, id. ¶ 10. For example, according to plaintiff, there were employees “in the machine

shop division [who] were not subject to the new [j]ourneyman [e]lectrician[’s] license

requirement[.]” Id. Plaintiff “tried to obtain a doctor’s medical certification to show that he is

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dyslexic,” but he was not able to do so until May 13, 2015. Id. ¶ 11; see generally Mem. of P. &

A. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 21 (“Pl.’s Opp’n”) Ex. E (Clinical

Neuropsychological Evaluation dated May 13, 2015). 4

Meanwhile, the Union’s grievance proceeded. “The parties could not agree on a

statement of issues to be decided by the Arbitrator.” Def.’s Mem., Ex. 14 (Arbitration Decision

dated July 12, 2015) at 2. On “[c]onsider[ation of] the evidence presented and the arguments in

the briefs,” id., Ex. 14 at 20, the Arbitrator fashioned his own statement of four issues to be

decided, two of which are relevant here:

Did [DC Water] violate the MOA or Articles 4 or 18 of the [CBA]
when it required Electrical Equipment Repairer . . . 11s to convert
to the job classifications of Industrial Journeyman Electrician or
Industrial Specialist Electrician and to obtain a CDL and
journeyman electrician[’s] license?

Did [DC Water] violate Article 34, Section A of the [CBA] when
the MOA required Industrial Journeyman Electricians and Industrial
Specialist Electricians to obtain new licenses by March [31], 2015?
Id., Ex. 14 at 21. 5 The Arbitrator found that DC Water did not violate any of the relevant CBA

or MOA provisions, and denied the grievance. Id., Ex. 14 at 40. The Arbitrator’s decision in DC

Water’s favor was binding on both parties. Id., Ex. 10 at 86 (Art. 58, Sec. 1, para. 12).

4
Plaintiff claims to have told human resources personnel that he has dyslexia, yet he fails to
identify the person(s) he notified, indicate whether or to whom he delivered the medical
certification, or identify the person(s) to whom he directed his request(s) for accommodation.
Plaintiff points to no materials in the record to show that DC Water actually knew he has
dyslexia, and he cannot establish this fact on summary judgment by relying on the allegations of
his Amended Complaint. See Statement of Disputed Material Facts in Support of Pl.’s Opp’n to
Def.’s Mot. for Summ. J. ¶¶ 20-22, 24 (citing Am. Compl. ¶ 17). He has cited no evidence in the
record to support this claim. In addition, there is no evidence in the record that the Dr.
Olarinde’s report with the diagnosis of dyslexia ever was provided to DC Water.
5
In relevant part, Article 4 provides that DC Water “shall give the President of the Union
advance written notice of changes in personnel policies, practices, or working conditions
affecting employees covered by this Agreement.” Sweeney Decl., Ex. 10 at 2 (Art. 4, Sec. B,
para. 2). Article 18 pertains to the release of information. See id., Ex. 10 (Table of Contents).
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 There were seven incumbent Electrical Equipment Repairer 11/CDL employees eligible

for the newly-created Industrial Journey Electrician positions: six are African-American and one

is Caucasian. Sweeney Decl. ¶ 29. Two of the African-American employees already had

journeyman electrician’s licenses. Id. One African-American employee and the Caucasian

employee “successfully tested for, and obtained, a journeyman electrician’s license.” Id.

Plaintiff and the two remaining African-American employees did not obtain a journeyman

electrician’s license by the March 31, 2015 deadline. Id. ¶ 30. In April 2015, plaintiff

“submitted his application for the Journeyman Electrician license exam, and was authorized to

take the exam on June 1, 2015.” Am. Compl. ¶ 12.

On April 1, 2015, Charles Sweeney, Director of Distribution and Conveyance Systems,

Sweeney Decl. ¶ 3, sent plaintiff a letter “informing him of his failure to meet the licensure

requirement to convert to the Industrial Journeyman Electrician position” by the March 31, 2015

deadline, id. ¶ 30; see id., Ex. 12 (Letter to plaintiff from Charles Sweeney dated April 1, 2015).

DC Water declined to terminate plaintiff’s employment at that time. Id. ¶ 31. Instead, “DC

Water removed him from his position as an electrician on April 1, 2015,” Am. Compl. ¶ 12, and

allowed him (and the two other African-American employees who failed to meet the March 31,

2015 deadline) an additional 60 days, to May 31, 2015, to obtain a journeyman electrician’s

license, Sweeney Decl. ¶¶ 31-32; see id., Ex. 12 (Acknowledgment of Receipt of Sixty (60) day

Notice to Obtain a Journeyman Electrician[’s] License). Plaintiff and two other African-

Americans “were the only Electrical Equipment Repairer 11 employees provided additional time

Article 34 pertains to employee licenses and certifications. If DC Water finds that “employees
holding certain positions should be certified or licensed, [it] agrees to assure that all employees
who are employed in such positions . . . shall be trained and otherwise assisted in satisfying this
requirement.” Id., Ex. 10 at 42 (Art. 34, Sec. A).
9
to obtain the required license.” Id. ¶ 32. Still, plaintiff failed to obtain the license, and DC

Water terminated his employment effective May 31, 2015. Id. ¶ 34; see id., Ex. 13 (Personnel

Action Report). He “received no benefits as part of the reduction-in-force (RIF) or severance

package from the termination,” and he was not eligible for rehire, see Sweeney Decl., Ex. 13, as

were other DC Water employees, Am. Compl. ¶ 12.

“On May 26, 2015, [plaintiff] went to the Washington Field Office of the Equal

Employment Opportunity Commission [EEOC],” where he filed a charge of discrimination,

completed an intake report, and signed an agreement to mediate his discrimination charges. Id. ¶

13. To indicate the basis of discrimination, plaintiff only checked the box marked

“DISABILITY.” See Pl.’s Opp’n, Ex. A (Charge of Discrimination dated May 26, 2015). He

stated that the alleged discrimination took place between April 1, 2015 and May 26, 2015, and

involved “CONTINUING ACTION.” Id., Ex. A. The narrative section of the charge read:

I work as an Electrical Equipment Repair[er] 11/CDL for the DC
Water and Sewer Authority . . . . I have a disability and require
reasonable accommodations. I have documentation that
demonstrates that I am disabled and require reasonable
accommodations.

I require a reasonable accommodation so that I can obtain the
training for the . . . the Journeyman Electrician[’s] License. My
Employer has not provided me with reasonable accommodations for
the training required to obtain th[is] license[]. Because I have been
unable to obtain th[is] license[] I have been laid off.

I believe that my layoff (and possible subsequent termination as a
result of being unable to obtain these licenses) was discriminatory
in violation of the Americans with Disabilities Act of 1990, as
amended[] (“ADA”)[,] and that my Employer has failed to provide[]
me with a reasonable accommodation in violation of the ADA.
Id., Ex. A.

The EEOC “issued a Notice of Right to Sue on May 27, 2015.” Am. Compl. ¶ 13. It

advised plaintiff that, if he chose to file a lawsuit, the must do so within 90 days of his receipt of

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the notice. See Pl.’s Opp’n, Ex. H (Dismissal and Notice of Rights dated May 27, 2015).

Proceeding pro se, plaintiff filed his original complaint, ECF No. 1, on September 29, 2016. 6 He

subsequently retained counsel who filed an amended complaint, ECF No. 17, on his behalf.

II. DISCUSSION

A. Summary Judgment Standard

DC Water moves for summary judgment under Rule 56 of the Federal Rules of Civil

Procedure. “The court shall grant summary judgment if 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). A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by “citing to particular parts of materials in the record, including

depositions, documents . . . affidavits or declarations, stipulations . . . , admissions, [or]

interrogatory answers[, or by] showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.” Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of

fact or 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.” Fed. R. Civ. P. 56(e).

When considering a motion for summary judgment, the Court cannot make credibility

determinations or weigh the evidence; the evidence must be analyzed in the light most favorable

6
It is the practice of the Clerk of Court to date stamp each pleading upon receipt. Review of the
docket reveals that the Clerk of Court received plaintiff’s original complaint, ECF No. 1, and his
application to proceed in forma pauperis, ECF No. 2, on September 29, 2016, that the Court
granted plaintiff’s application on October 14, 2016, and that the Clerk of Court officially filed
both documents on CM/ECF on October 20, 2016. The Court treats the original complaint as if
it had been filed on September 29, 2016.
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to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are

susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,

571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted). The mere existence of a factual dispute does

not bar summary judgment, however. See Liberty Lobby, 477 U.S. at 248. “Only disputes over

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

entry of summary judgment.” Id. The adverse party must “do more than simply show that there

is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986), and he cannot rely on conclusory assertions without any factual

basis in the record to create a genuine dispute, see Ass’n of Flight Attendants - CWA v. U.S.

Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

B. ADA Claim (Count I)

DC Water moves for summary judgment on Count I of the Amended Complaint on the

ground that plaintiff’s ADA claim is time-barred. Def.’s Mem. at 7. The Notice of Right to Sue

includes a warning that any lawsuit was to be filed within 90 days of the claimant’s receipt of the

notice. See Pl.’s Opp’n, Ex. H. DC Water contends that plaintiff filed his lawsuit “nearly

seventeen (17) months after he received his Notice of Right to Sue, and approximately fourteen

(14) months after the expiration of [his] deadline to initiate his ADA suit.” Def.’s Mem. at 8

(emphasis in original).

The Amended Complaint does not specify the date on which plaintiff received the Notice

of Right to Sue. However, he does not deny DC Water’s assertions that he received the notice on

May 27, 2015, that he had until August 25, 2015 to file a lawsuit under the ADA, and that he

filed his original complaint on September 29, 2016. See Def.’s Statement of Undisputed Facts in

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Support of its Mot. for Summ. J., ECF No. 18-2 (“Def.’s SOF”) ¶¶ 28, 30-31; Statement of

Disputed Material Facts in Support of Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 21-1

(“Pl.’s SOF”) at 3 (page number designated by ECF) (omitting mention of Def.’s SOF ¶¶ 24-32).

He argues instead that the limitations period should be tolled. See Pl.’s Opp’n at 12-13. Plaintiff

has dyslexia, a learning disability, which he claims rendered him non compos mentis and thus

incapable of handling his affairs between May 30, 2015 and September 29, 2016. Id. at 12; see

Pl.’s Opp’n to Def.’s Mot. to Dismiss, or in the Alternative, Mot. for Summ. J., or in the

Alternative, Mot. for a More Definite Statement, ECF No. 12, at 6-7. For this reason, plaintiff

asserts, his lawsuit should be considered timely filed.

Under District of Columbia law, “when a person entitled to maintain an action is, at the

time the right of action accrues . . . non compos mentis . . . he or his proper representative may

bring action within the time limited after the disability is removed.” D.C. Code § 12-302(a).

Although the statute itself “does not itself define non compos mentis,” Smith-Haynie v. District

of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998), “[t]he phrase . . . generally refers to someone

incapable of handling his own affairs or unable to function [in] society,” Hendel v. World Plan

Exec. Council, 705 A.2d 656, 665 (D.C. 1997) (quoting Speiser v. U.S. Dep’t of Health &

Human Servs., 670 F. Supp. 380, 384 (D.D.C. 1986), aff’d , 818 F.2d 95 (D.C. Cir. 1987)).

“The disability of a person claiming to be non compos mentis must be ‘of such a nature as

to show [he] is unable to manage [his] business affairs or estate, or to comprehend [his] legal

rights or liabilities.’” Smith-Haynie, 155 F.3d at 580 (quoting Decker v. Fink, 422 A.2d 389, 392

(Md. 1980)); see also Oparaugo v. Watts, 884 A.2d 63, 73 (D.C. 2005). Impaired judgment by

itself does not excuse a plaintiff’s untimely filing, see Decker, 422 A.2d at 393, and “[t]he mere

existence of mental problems or life difficulties will not suffice,” Davis v. Vilsack, 880 F. Supp.

13
2d 156, 162 (D.D.C. 2012). Indicia of non compos mentis status might include a showing that

plaintiff has been “adjudged incompetent, signed a power of attorney, had a guardian or

caretaker appointed, or otherwise took measures to let someone else handle [his] affairs[.]”

Speiser, 670 F. Supp. at 385.

Plaintiff relied on the reports of Emmanuel A. Olarinde, Ph.D., a licensed clinical

psychologist, one of which was prepared prior to his termination. Plaintiff had “referred himself

for a psychoeducational evaluation . . . designed to assess [his] cognitive ability [and] academic

achievement in reading and mathematics.” Pl.’s Opp’n, Ex. E-1 (Clinical Neuropsychological

Evaluation dated May 13, 2015) at 1. 7 Dr. Olarinde observed:

[Plaintiff] came to the testing sessions [on April 13, April 20, and
April 27, 2015] well kept, and groomed. Hygiene was effectively
managed and he dressed appropriately for the occasion . . . . Facial
expression was responsive, and eye contact was appropriate.
[Plaintiff] demonstrated normal activity level and he appeared not
to be easily aroused by extraneous environmental stimuli . . . .

[Plaintiff’s] speech was spontaneous but with significant
articulation problems. However[,] communication with the
examiner was not impeded in any significant way either receptively
or expressively. His thinking was assessed through his speech
production. [Plaintiff’s] though process was coherent, logical and
goal directed. He was able to reach his goal of thoughts without
significant digression. Thought content was devoid of delusion,
phobia, obsession, suicide, homicide, preoccupied ideas, or any
symptoms of psychosis . . . .

Major components of his memory, such as, immediate, short-term
and remote memories[,] appeared to be intact. [Plaintiff] did not
exhibit significant attention and concentration problems. [He] was
adequately oriented to time, place and person . . . . He complied
with the examiner’s guidelines and performed all the tasks and
answered all the questions presented to him.

Id., Ex. E-1 at 1-2.

7
Plaintiff produces two evaluations, one dated May 13, 2015 and the other dated September 13,
2015. The Court designates the former “Ex. E-1” and the latter “Ex. E-2.”
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 Subsequent testing with respect to plaintiff’s intellectual ability revealed that plaintiff’s

“reasoning abilities on verbal tasks are generally in the low average range . . . while his

nonverbal reasoning abilities are significantly higher and in the average range.” Id., Ex. E-2

(Clinical Neuropsychological Evaluation dated September 13, 2015) at 4. Further, Dr. Olarinde

found that plaintiff’s “ability to sustain attention, concentrate, and exert mental control is in the

low average range,” and his “ability in processing simple or routine visual material without

making errors is in the average range.” Id., Ex. E-2 at 4.

Dr. Olarinde concluded that plaintiff would “have serious difficulties in learning and

memory in any training that involves reading and writing.” Id., Ex. E-1 at 4. With respect to

plaintiff’s reading ability, Dr. Olarinde found “[a] relative weakness in decoding words as

compared to reading words in isolation,” which “may indicate that [plaintiff] has difficulty

applying phonetic rules for decoding words but may not have learned vocabulary words to

automaticity.” Id., Ex. E-1 at 2-3. He concluded that plaintiff “has a disorder of the basic

psychological process involved in understanding or in using written language that manifest[s]

itself in an imperfect ability to read[,] write and spell, or to do mathematical calculations,

including conditions such as visual and auditory perceptual disabilities and dyslexia.” Id., Ex. E-

1 at 4 (emphasis removed). Only after this second round of testing did Dr. Olarinde appear to

diagnose a “[r]eading [d]isorder with impairment in word reading and reading comprehension

(dyslexia),” recommending that plaintiff’s employer “accommodate for his reading disabilities”

by using “a device where instructions or test items or questions are read to him.” Id., Ex. E-2 at

6.

In addition, plaintiff pointed to errors he made as evidence of his inability to comprehend

his legal rights. When he “attempted to complete the EEOC Charge of Discrimination form . . .

15
he selected the box that stated he does not have a disability and selected ‘genetic information’ as

the type of discrimination he faced on the EEO questionnaire.” Pl.’s Opp’n at 12; see id. Exs. A,

F. He also “stated that he faced a ‘layoff’ on April 1, 2015, because he did not understand DC

Water’s letter [to mean] that he needed to complete his license within sixty days.” Id.; see id.,

Ex. C. Further, he pointed to his misidentification of his former employer on his pro se

complaint as “DC Water Is Life,” and he even wrote down the incorrect zip code for his home

address. Id. And among other examples, plaintiff referred to the quality of his pro se complaint

and DC Water’s need to file a “motion for a more definite statement due to the limited facts

presented and nonexistent legal allegation” as proof that he “was absolutely unable to manage his

own legal affairs.” Id. at 13.

Missing from plaintiff’s opposition are any references to materials in the record of this

case tending to show that plaintiff could not manage his own affairs or otherwise function in

society because of a reading disorder. Nothing is known about plaintiff’s activities and mental or

physical condition during this supposed period of incapacity. Plaintiff does not claim that his

judgment was impaired or that his physical or mental health was compromised. He neither

identifies an event that suddenly triggered his incapacity on May 30, 2015, nor explains how his

incapacity was removed on September 29, 2016, the day he filed his original pro se complaint.

Rather, plaintiff’s actions immediately prior to the purported onset of his non compus

mentis status on May 30, 2015 reflect an understanding that his employment with DC Water was

at risk unless he could obtain a journeyman electrician’s license, that his dyslexia is a basis for

requesting a reasonable accommodation to prepare for the licensure examination, that DC Water

may have discriminated against him because of his disability, and that the EEOC was an

appropriate place to seek relief. Dr. Olarinde’s observations, particularly his assessment that

16
plaintiff’s “thought process was coherent, logical and goal directed,” Pl.’s Opp’n, Ex. E-1 at 1,

are not consistent with a person who purports to be incompetent or who was otherwise unable to

manage his own affairs. Furthermore, the narrative set forth in plaintiff’s EEOC charge was

coherent and clearly set forth a claim of discrimination based on disability.

The Court concludes that plaintiff was not non compos mentis, that equitable tolling of

the 90-day limitations period is not warranted, and that his ADA claim is untimely. Summary

judgment will be granted in DC Water’s favor on Count I.

C. Title VII (Count II) and ADEA (Count IV) Claims

An employer shall 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, because of such individual’s race [.]” 42 U.S.C. § 2000e-2(a)(1). Nor

shall an employer “fail or refuse to hire or to discharge any individual or otherwise discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of [his] age.” 29 U.S.C. § 623(a)(1).

A plaintiff bringing employment discrimination claims under Title VII and the ADEA

first must file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(b) (Title VII);

29 U.S.C. § 626(d) (ADEA). If the EEOC determines “that there is no reasonable cause to

believe that the charge is true,” the EEOC “shall dismiss the charge and promptly notify the

person claiming to be aggrieved.” Id. Only after a plaintiff files his charge of discrimination and

obtains a notice of right to sue has he exhausted his administrative remedies on a race

discrimination claim, see, e.g., Bell v. Redding, 539 F. Supp. 2d 423, 424 (D.D.C. 2008), and

only then can he file a lawsuit in federal district court, see, e.g., Jones v. District of Columbia,

273 F. Supp. 2d 61, 64 (D.D.C. 2003). A plaintiff who is not a federal employee raising an age

17
discrimination claim must file a charge of discrimination with the EEOC, but he need not obtain

a notice of right to sue before filing his lawsuit. See Cruz-Packer v. District of Columbia, 539 F.

Supp. 2d 181, 189 (D.D.C. 2008). “These procedural requirements . . . are not trivial.” Rattigan

v. Gonzales, 503 F. Supp. 2d 56, 68 (D.D.C. 2007). They are designed to give “agencies an

opportunity to handle matters internally whenever possible and to ensure that the federal courts

are burdened only when reasonably necessary.” Id. (citing Brown v. Marsh, 777 F.2d 8, 14 (D.C.

Cir. 1985)) (internal quotation marks omitted).

Generally, the scope of the subsequent lawsuit “is limited . . . to claims that are ‘like or

reasonably related to the allegations of the charge and growing out of such allegations.’” Park v.

Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citing Cheek v. Western and Southern Life

Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)); see Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir.

2010) (reinforcing Park holding insofar as claims in civil suit must arise from the administrative

investigation that can reasonably be expected to follow the charge of discrimination). “A

plaintiff fails to exhaust [his] administrative remedies when the complaint [he] files in federal

court includes a claim that was not raised in the administrative complaint.” Mogenhan v.

Shinseki, 630 F. Supp. 2d 56, 60 (D.D.C. 2009).

DC Water seeks judgment in its favor on Counts II and IV of the Amended Complaint on

the ground that plaintiff failed to exhaust his administrative remedies with respect to his race and

age discrimination claims before filing this lawsuit. See Def.’s Mem. at 8-10. It notes that

plaintiff’s charge of discrimination “contains neither a checked box for ‘race’ or ‘age,’ nor does

the factual narrative include any reference to discrimination based on age or race, or to

[plaintiff’s] age or race.” Id. at 9. Rather, “the checked boxes and factual narrative only include

allegations of disability discrimination and failure to accommodate,” such that “no reasonable

18
reading and/or interpretation of the Charge . . . allows the inference that [plaintiff] intended to

bring claims of race and age discrimination, or even contemplated the existence of any such

claims at the time of filing the Charge.” Id. at 9-10.

Plaintiff argues that his failure to check the boxes for race and age discrimination is not

dispositive. Rather, he contends that his race and age discrimination claims “would have arisen

from an investigation of his charge of discrimination” based on his disability because all of his

claims “arose from the same factual circumstances.” Pl.’s Opp’n at 10. And, he asserts, his

Intake Questionnaire indicates his intention to list the ages of certain employees whom DC

Water treated more favorably than it treated plaintiff, see id., Ex. F (Intake Questionnaire) at 2,

from which the EEOC was to divine an age discrimination claim. Similarly, he asserts that an

investigation as to “timing concerns regarding the Journeyman license would give rise to [his]

claims of race and age discrimination.” Id. at 11. The Court is not persuaded.

A Title VII claim “must arise from the administrative investigation that can reasonably be

expected to follow the charge of discrimination.” Park, 71 F.3d at 907 (internal quotation marks

and citation omitted). It simply is not reasonable to conclude that an investigation of the

allegations in plaintiff’s EEOC charge, particularly in light of its repeated mention of “disability”

and “reasonable accommodation,” would uncover a claim of discrimination based on race or age.

See Hicklin v. McDonald, 110 F. Supp. 3d 16, 21 (D.D.C. 2015) (finding that plaintiff “failed to

give any notice that he was alleging retaliation in his EEO complaint; rather, he clearly indicated

race and religion as the only bases for the adverse action he suffered and furnished a narrative

focusing solely on his allegedly hostile work environment without mentioning retaliation or

reprisal”); Massey v. Gray, 85 F. Supp. 3d 104, 109 (D.D.C. 2015) (concluding that allegations

of discrimination based on gender, race, disability and retaliation raised for the first time in

19
amended complaint “are neither like nor reasonably related to her age discrimination claim” in

the charge of discrimination “and therefore are not properly before the Court”), aff’d sub nom.

Massey v. District of Columbia, No. 15-7041, 2015 WL 9310126 (D.C. Cir. Dec. 9, 2015) (per

curiam); Brown v. District of Columbia, 251 F. Supp. 2d 152, 162 (D.D.C. 2003) (finding that

“plaintiff [who] checked only the boxes for allegations of discrimination based on race and

disability, and did not check the boxes for gender discrimination or retaliation, and whose civil

complaint “relate[d] specifically to race and disability discrimination [with] absolutely no

indication that plaintiff was alleging gender discrimination or retaliation” failed to exhaust

gender discrimination and retaliation claims).

All of plaintiff’s discrimination claims may have arisen from the same factual

circumstances: abolishing the Electrical Equipment Repairer 11/CDL positions, creating the

Industrial Journeyman Electrician positions, and requiring a journeyman electrician’s license by

date certain. It is apparent, however, that plaintiff’s “timing concerns” pertain to the time period

within which he was expected to train for, take and pass the journeyman electrician’s license

examination, and the difficulty his reading disability may have posed. An EEOC investigation

likely would have focused on the nature of plaintiff’s purported disability and the reasonable

accommodations he may have requested or to which he may have been entitled. It is not at all

clear that inquiries of this nature would have uncovered a basis for race and age discrimination

claims plaintiff himself had not raised.

The Court concludes that plaintiff failed to exhaust his administrative remedies with

respect to his Title VII and ADEA claims, and grants summary judgment for DC Water on

Counts II and IV.

20
 D. Section 1981 Claim (Count III)

“Section 1981 prohibits private employers from intentionally discriminating on the basis

of race with respect to the ‘benefits, privileges, terms, and conditions’ of employment.” Ayissi-

Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting 42 U.S.C. § 1981)

(additional citation omitted). “Under extant precedent[,] purposeful discrimination requires more

than ‘intent as volition or intent as awareness of consequences’ . . . . It instead involves a

decisionmaker’s undertaking a course of action ‘because of,’ not merely ‘in spite of,’ [the

action’s] adverse effects upon an identifiable group.” Ashcroft v. Iqbal, 556 U.S. 662, 676-77

(2009) (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979))

(brackets in original). In other words, “only . . . purposeful discrimination” violates Section

1981. Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982).

Plaintiff alleges that DC Water discriminated against him on the basis of his race in

violation of Section 1981when it “changed his official position to require an unnecessary license,

gave him six months to obtain the [j]ourneyman [e]lectrician[’s l]icense while giving Caucasian

electricians eighteen months to two years to obtain their . . . [l]icenses, denied [him] the chance

to go back to school while offering Caucasian employees the opportunity to take classes and

obtain the education necessary to earn their [j]ourneyman [e]lectrician[’s l]icenses, removed him

from his position, and terminated him from his employment.” Am. Compl. ¶ 25.

“For purposes of summary judgment, the operative question under Section 1981 . . . is

whether the employee produced sufficient evidence for a reasonable jury to find that . . . the

employer intentionally discriminated against [him] on the basis of race.” Ayissi-Etoh, 712 F.3d

at 576 (quoting Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)

(internal quotation marks removed). Where a plaintiff presents no direct evidence of

21
discrimination, the Court employs the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973):

Under this formula, a plaintiff must first establish a prima facie case
of prohibited discrimination. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). The employer must then come
forward with a legitimate, non-discriminatory reason for the
challenged employment decision. Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981). If the employer meets this
burden, the framework falls away and the court must decide one
ultimate 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[?]”
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008).
DeJesus v. WP Co. LLC, 841 F.3d 527, 532-33 (D.C. Cir. 2016).

However, it is well-established that “it is no longer relevant” if plaintiff established his

prima facie case once defendant has proffered a non-discriminatory explanation for its conduct.

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). Here, because DC

Water has proffered an allegedly non-discriminatory reason for its decision to terminate plaintiff,

setting forth facts to establish a prima facie case would be “an unnecessary sideshow.” Brady,

520 F.3d at 494. Thus, the Court need only determine whether plaintiff has “produced sufficient

evidence for a reasonable jury to find the [defendant’s] non-discriminatory reason was not the

actual reason that [DC Water] intentionally discriminated against [plaintiff] on the basis of” his

protected status. Id.

DC Water proffered that compliance with District of Columbia law prompted its actions.

See Sweeney Decl. ¶¶ 8-11; see id., Ex. 2; Def.’s SOF ¶¶ 8-9. It “could not ignore that some of

the Electrical Equipment Repairer 11s, including [plaintiff] might not be qualified electricians in

the District of Columbia because they had apprentice electrician’s licenses, worked

independently for extended periods of time, and [did] not [work] under the direct supervision of

22
a master electrician.” Def.’s Mem. at 12. Because there were not enough master electricians in

DC Water’s employ to supervise directly each Electrical Equipment Repairer 11 with only an

apprentice electrician’s license, and because DC Water lacked the resources to hire a sufficient

number of master electricians, it opted to “chang[] the Electrical Equipment Repairer 11 position

into the Industrial Journeyman Electrician position.” Id. at 12-13. Each Electrical Equipment

Repairer 11 – regardless of his race – was required to have, or to obtain by March 31, 2015, a

journeyman electrician’s license. Id. at 13; see Sweeney Decl. ¶¶ 20-21; Def.’s SOF ¶ 17. All of

the then-incumbent Electrical Equipment Repairer 11s had the same deadline, and all had the

same opportunity for training at DC Water’s expense in preparation for the license examination.

Def.’s Mem. at 13-14; see Sweeney Decl. ¶¶ 21-22; Def.’s SOF ¶¶ 18, 21. Plaintiff was allowed

two additional months to comply with the licensure requirement, and still failed to do so.

Sweeney Decl. ¶ 13; Def.’s SOF ¶¶ 25, 29. DC Water proffered that the imposition of a

licensure requirement consistent with District of Columbia law was the legitimate

nondiscriminatory reason for abolishing the Electrical Equipment Repairer 11 positions, creating

the new Industrial Journeyman Electrician positions, and requiring each Journeyman Electrician

to have a journeyman electrician’s license. Def.’s Mem. at 12.

At this stage, plaintiff bears the burden to show that DC Water’s proffered reason was not

the actual reason for its employment decisions, and, instead, DC Water discriminated against

plaintiff on the basis of his race. See Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151

(D.C. Cir. 2003). “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) (citing Brady, 520 F.3d at 495).

“In order to successfully use similarly situated individuals to establish pretext and thus raise an

23
inference of discrimination, a plaintiff must establish that all of the relevant aspects of [his]

employment situation were nearly identical to those of the comparators.” Steele v. Carter, 192 F.

Supp. 3d 151, 169 (D.D.C. 2016) (internal quotation marks and citation omitted), aff’d in part,

appeal denied in part sub nom. Steele v. Mattis, No. 16-5236, 2017 WL 2332608 (D.C. Cir. Feb.

21, 2017).

The Amended Complaint alleges that Caucasian electricians received more favorable

treatment than plaintiff, an African American, because they were allowed 18 months to two years

to obtain their journeyman electrician’s licenses. Am. Compl. ¶ 25. Nevertheless, he faults DC

Water for proceeding as if “the only employees similarly-situated to [plaintiff] are Electrical

Equipment Repairer 11 employees.” Pl.’s Opp’n at 2; see id. at 7. Plaintiff contends that the

“job title is not dispositive to the identification of similarly-situated employees.” Id. at 2.

According to plaintiff, there are other similarly-situated employees who “received more time to

obtain their licenses and were . . . allowed to return to school,” id., but these employees in “other

units,” id. at 3, cannot be identified without discovery, see id. at 2, 8.

Notwithstanding his argument for discovery, plaintiff refers to the MOA, see id. at 3,

particularly its third paragraph regarding “Utility Systems Operator RW-08 [employees] hired

into the position of a Utility Systems Operator I or II,” who were allowed 18 months to obtain

necessary certification for that position, id., Ex. B (MOA) ¶ 3. Plaintiff fails, however, to

describe a Utility Systems Operator’s job duties or set forth any basis from which the Court

might determine whether and to what extent Utility Systems Operators’ situation mirrored

plaintiff’s situation. Further, plaintiff offers no response to DC Water’s assertions that “[t]hese

employees are not electricians,” Def.’s Reply Mem. of P. & A in Support of its Mot. for Summ.

J., ECF No. 23 (“Def.’s Reply”) at 20; see id., Decl. of Roger E. Brown, Jr., Ex. B (Job

24
Description, Utility Systems Operator 08), and that “their job duties and supervisory structures

differ from either the Electrical Equipment Repairer 11 or Industrial Journeyman Electrician

positions,” id. at 20.

The Court may allow a nonmovant time to take discovery if he “shows by affidavit or

declaration that, for specified reasons, [he] cannot present facts essential to justify [his]

position.” Fed. R. Civ. P. 56(d). The declaration must “outline the particular facts he intends to

discover and describe why those facts are necessary to the litigation,” explain why he could not

produce these facts in his opposition to the summary judgment motion, and demonstrate that the

information he seeks is actually discoverable. Convertino v. U.S. Dep’t of Justice, 684 F.3d 93,

99-100 (D.C. Cir. 2012) (citations omitted). The declaration of plaintiff’s counsel is deficient.

For example, counsel requests information about the reorganization generally, and about

electricians specifically. See Decl. Pursuant to Rule 56(d) of the Fed. R. Civ. P. in Support of

Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 21-2 ¶¶ 1-5. Missing from his declaration is

an outline of the particular facts he intends to discover and why these yet-to-be discovered facts

are necessary. If Utility Systems Operators are the similarly-situated employees plaintiff deems

comparators, these employees are not even mentioned in the list of matters about which plaintiff

claims discovery is needed. 8

Utility Systems Operators are not electricians, and nothing in the record of this case

demonstrates that these non-electricians are viable comparators. Furthermore, in the context of

8
Nor does counsel explain why he could not produce items such as plaintiff’s medical records,
documents relating to plaintiff’s ability to manage his own affairs, and requests for
accommodations for plaintiff’s alleged disability. See Decl. Pursuant to Rule 56(d) of the Fed.
R. Civ. P. in Support of Pl.’s Opp’n to Def.’s Mot. for Summ. J. ¶¶ 7-9. These matters are
discoverable (even if DC Water is unlikely to have information such as plaintiff’s medical
records, for example), within the realm of plaintiff’s personal knowledge, or otherwise accessible
to plaintiff absent formal discovery.
25
this case, plaintiff does not demonstrate that African American electricians were disadvantaged

in any way. There is but one Caucasian electrician in plaintiff’s situation -- he was offered the

same training opportunity plaintiff was offered, and he obtained a journeyman electrician’s

license by the March 31, 2015 deadline. Arguably, DC Water treated plaintiff and two fellow

African American electricians more favorably by allowing them two additional months, to May

31, 2015, to obtain the required journeyman electrician’s license.

Next, plaintiff argues that DC Water changed his position description because there had

been a change in District of Columbia law. See Pl.’s Opp’n at 5-6. “The clause governing the

limitation of those who hold an apprentice [electrician’s] license ha[s] not changed since at least

1981.” Id. at 6. Thus, for his entire tenure at DC Water, plaintiff “worked under the supervision

of an Electrical Foreman, not a Master Electrician,” such that DC Water had “been breaking

D.C. statutory law” for decades. Id. According to plaintiff, these circumstances “suggest[] that

[DC Water’s] purported justification for the change of [plaintiff’s] position is false and pretext

for unlawful discrimination.” Id.

DC Water does not argue that there had been a change in law regarding electrician’s

licenses. Rather, it explains, in order “[t]o come into compliance with applicable regulations

already on the books, DC Water abolished the Electrical Equipment Repairer 11 position” and

created the Industrial Journeyman Electrician in its place. Def.’s Reply at 16 (emphasis in

original); see Sweeney Decl. ¶¶ 8-12. An “Industrial Journeyman Electrician . . . would perform

similar duties, but had a job description which explicitly required a journeyman electrician’s

license. Def.’s Reply at 16. “The tasks and duties [plaintiff] performed, and perhaps should not

have [performed], were a critical basis for the change in licensure requirements.” Id. at 17.

26
Plaintiff misreads DC Water’s argument, and he fails to rebut DC Water’s showing based on his

misunderstanding of DC Water’s proffered basis for its employment decision.

The Court finds that plaintiff has not produced sufficient evidence from which a

reasonable jury could find that DC Water intentionally discriminated against him on the basis of

race. Discovery is not warranted, and the Court will grant summary judgment in DC Water’s

favor on Count III.

E. DCHRA Claims (Count V)

In the District of Columbia, it is unlawful for an employer “[t]o 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 opportunities, or otherwise adversely affect his status as an employee”

on the basis of his race, age, or disability. D.C. Code § 2-1402.11(a). A plaintiff making a claim

under the DCHRA must do so “within 1 year of the occurrence of the unlawful discriminatory

practice, or the discovery thereof.” D.C. Code § 2-1403.04(a). However, a timely filed charge

with the EEOC, “which in turn cross-files with DCHRA, tolls the time for filing a private cause

of action under D.C. law.” Esteños v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 882 (D.C.

2008); see Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 78 (D.D.C. 2009) (“When a

charge of discrimination is filed with the EEOC in the District of Columbia, a claim is

automatically cross-filed with the D.C. Office of Human Rights . . . pursuant to a ‘worksharing

agreement’ between the two agencies.”).

DC Water argues that plaintiff failed to bring his race, age and disability discrimination

claims under the DCHRA within the one-year limitations period. Def.’s Mem. at 15-17. Even if

27
the cross-filing of his EEOC charge with the DCHRA tolled the limitations period, “the tolling

period is only one-day long.” Id. at 16. The Court concurs.

Plaintiff filed his charge of discrimination with the EEOC on May 26, 2015, and the

EEOC issued its notice of right to sue one day later, on May 27, 2015. The limitations period

would have been “tolled during the processing of the [charge] by the EEOC.” Miller v. Gray, 52

F. Supp. 3d 62, 68 (D.D.C. 2014) (citations omitted); see Alexander v. Washington Metro. Area

Transit Auth., 826 F.3d 544, 551 (D.C. Cir. 2016) (noting that, “generally when a federal court

borrows a limitations period from state law, that law’s tolling provisions come along as part of

the package”). Tolling “ended when the EEOC issued its right to sue notice[.]” Hammel v.

Marsh USA Inc., 79 F. Supp. 3d 234, 241 (D.D.C. 2015).

The filing of this lawsuit on September 29, 2016 occurred roughly four months after the

DCHRA’s one-year limitations period expired. The Court has considered and rejected plaintiff’s

assertion that he was non compos mentis during the relevant time period, and absent any

alternative basis for tolling the statute of limitations, plaintiff’s DCHRA claims are time-barred.

The Court grants summary judgment in DC Water’s favor on Count V.

F. Contract Claim (Count VI)

Plaintiff claims to have been employed by DC Water “though an express or implied

employment contract” created by the “employee handbook[.]” Am. Compl. ¶ 36. He alleges

that DC Water breached the contract “by changing [plaintiff’s] job description[,] giving [him]

less time than other electricians to obtain his [journeyman electrician’s] license,” and by denying

him “the right to rehire and severance pay provided to other employees.” Id. DC Water asserts,

and plaintiff does not dispute, that “the only express contract that could be at issue is the CBA.”

Def.’s Reply at 21; see Def.’s Mem. at 23; see also Pl.’s Opp’n at 13.

28
 1. Res Judicata (Claim Preclusion)

DC Water notes that the CBA governs plaintiff’s employment terms and conditions, and

its “grievance process . . . is the sole and exclusive remedy . . . a covered employee may use to

seek recovery for a purported breach of the CBA.” Def.’s Mem. at 23. Assuming that plaintiff

actually has a viable breach of contract claim, DC Water contends that it “is based on [an]

argument that [it] breached the CBA when it changed his job description and job requirements

during the reorganization.” Id. According to DC Water, “[t]hese exact issues were arbitrated . . .

through the CBA’s sole and exclusive grievance procedure, and the ruling in DC Water’s favor

has preclusive effect” on plaintiff’s contract claim. Id.

“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892

(2008). Claim preclusion bars a subsequent lawsuit “if there has been prior litigation (1)

involving the same claims or cause of action, (2) between the same parties or their privies, and

(3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.”

Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006) (citations omitted); see New

Hampshire v. Maine, 532 U.S. 742, 748 (2001) (“Claim preclusion generally refers to the effect

of a prior judgment in foreclosing successive litigation of the very same claim, whether or not

relitigation of the claim raises the same issues as the earlier suit.”).

DC Water argues, and the Court concurs, that three elements are easily met. A binding

arbitration decision is a final decision on the merits, see Century Int’l Arms, Ltd. v. Fed. State

Unitary Enter. State Corp. “Rosvoorouzheinie,” 172 F. Supp. 2d 79, 95 (D.D.C. 2001) (“The

decisions of binding arbitration proceedings are final decisions on the merits for purposes of res

judicata.”) (citations omitted), and a union member is in privity with his union, see Proctor v.

29
District of Columbia, 74 F. Supp. 3d 436, 452 (D.D.C. 2014), for claim preclusion purposes.

Although the Arbitrator is not a court, there is no dispute that plaintiff is a Union member whose

employment terms and conditions are governed by the CBA, particularly its provision that

arbitration decisions are final and binding decisions on the merits. Cf. Camp v. Kollen, 567 F.

Supp. 2d 170, 173 (D.D.C. 2008) (rejecting argument that arbitrator’s award “is not a final

judgment deserving preclusive effect because the award is unconfirmed” where “the parties

agreed to participate in binding arbitration, the [arbitrator] rendered a ‘final and binding’

decision on the merits, and neither party has challenged that decision”). Remaining, then, is a

determination whether the Union grievance and plaintiff’s contract claim involve the same

claims or causes of action.

Two claims need not be “literally identical claims for res judicata to apply.” Capitol Hill

Grp. v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp. 2d 143, 149 (D.D.C. 2008), aff’d

sub nom. Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485 (D.C. Cir.

2009). “Whether two cases implicate the same cause of action turns on whether they share the

same ‘nucleus of facts.’” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Page v.

United States, 729 F.2d 818, 820 (D.C. Cir. 1984)).

Plaintiff’s contract claim arose from DC Water’s reorganization: DC Water changed

plaintiff’s job description, negotiated a deadline by which he was to obtain a journeyman

electrician’s license, and provided training for him and the other Electrical Equipment Repairer

11 employees to prepare for the journeyman electrician’s license examination. The Union could

have, and opted not to, grieve the change of job description. An Arbitrator addressed the

deadline and training matters in the context of the Union grievance, and resolved both matters in

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DC Water’s favor. Pursuant to the CBA, the Arbitrator’s decision is binding on all parties,

including plaintiff.

Plaintiff maintains that the Union’s “case is very different from [his] allegations.” Pl.’s

Opp’n at 14. While the Union had heard rumors of a reorganization long before 2014 and had

been consulted during the process, plaintiff “faced an abrupt change in his job description” after

having worked for DC water for 27 years. Id. He asserts that the Union’s grievance “is not

sufficient to address [his] claim” that DC Water “effectively terminated [him] from his position

when [it] changed the job description.” Id. Plaintiff does not explain how or why the Union-

initiated grievance would have arisen from a set of facts distinct from those supporting his

contract claim, or why he might avoid the consequences of binding arbitration.

2. Right to Rehire and Severance Pay

In vague terms, plaintiff alleges that “DC Water’s employee handbook created a . . .

contract” and breached the contract when it “denied [him] the right to rehire and severance pay

provided to other employees.” Am. Compl. ¶ 36. DC Water moves to dismiss this claim on the

ground that the pleading fails to state a contract claim upon which relief can be granted. See

generally Def.’s Mem. at 26-29.

A plaintiff adequately alleges a breach of contract claim by stating that there is a

legitimate contract between the parties, that a party breached an obligation or duty arising from

the contract, and that he suffered damages as a result of the breach. See, e.g., Logan v. Lasalle

Bank Nat’l Ass’n, 80 A.3d 1014, 1024 (D.C. 2013) (citation omitted); Patriot, Inc. v. U.S. Dep’t

of Housing & Urban Dev., 963 F. Supp. 1, 6 (D.D.C. 1997) (rejecting implied contract claim

where “plaintiffs have not demonstrated an offer, acceptance, or consideration – all essential

elements of a contract which are required to succeed on an implied contract claim”).

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 As DC Water notes, see Def.’s Mem. at 27-28, the Amended Complaint addresses none

of these points. Plaintiff neither identifies a policy in an employee handbook which DC Water

breached, see id., nor alleged the manner by which DC Water breached his purported right to

rehire or for severance pay, id. at 28. Further, on summary judgment, plaintiff’s opposition fails

to produce sufficient evidence to raise a genuine issue of material fact as to the existence, terms

and breach of an implied contract. See Def.’s Reply at 23-24. Therefore, the Court grants

summary judgment for DC Water on Count VI.

III. CONCLUSION

DC Water has demonstrated that there is no genuine issue of material fact in dispute and

that it is entitled to judgment as a matter of law. Plaintiff’s ADA and DCHRA claims are time-

barred. Plaintiff failed to exhaust administrative remedies with respect to his ADEA and Title

VII claims. He has not produced sufficient evidence from which a reasonable jury could find

that DC Water intentionally discriminated against him on the basis of race, and his lack of

success on this Section 1981 claim renders moot his request for discovery. Lastly, plaintiff fails

to state a breach of contract claim. Accordingly, the Court grants DC Water’s motion for

summary judgment. An Order is issued separately.

DATE: September 22, 2017 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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