Mack v. Aspen of D.C., Inc.

UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA

JAN 2 4 2018
YoLoNDA MACK, ) ,
) c‘§'§{ls'?¢th[§‘§|"¥t~&ta?'é“'"”*°y
S l'lC l
Plaintiff, ) ° ° ""’°‘a
)
v. ) Civil ease No. 15-1973 (RJL)
)
ASPEN OF D.C., INC., et al., )
)
Defendants.
MEMORANDUM OPINION

(Januaryzi 2018) [Dkts. ## 24, 26, 28, 31]

Plaintiff Yolonda Mack (“plaintiff’ or “Mack”) brings this action against Aspen of
D.C., Inc. (“Aspen”) and Aspen’s President and CEO, Brandy R. Butler (“Butler”)
(collectively, “defendants”). Mack alleges discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as failure to
pay Wages in violation of D.C. Code § 32-1012. See generally Compl. [Dkt.
# l]. Currently pending before the Court is defendants’ Motion for Summary Judgment.
See Defs.’ Mot. Summ. J. (“Defs.’ Mot.”) [Dkt. # 26].l Having considered the record and

relevant case laW, the defendants’ motion is GRANTED.

BACKGROUND

When evaluating a motion for summary judgment, the Court accepts the evidence

of the non-movant_here§ Mack_and resolves all genuine factual disputes in her favor.

' A few motions arising from discovery and deadline disputes also remain pending. See Def.
Aspen’s Motion to Quash Pl. Counsel’s Notice Deps. [Dkt. # 24]; Pl.’s Combined Mot. Rule 56(d) Relief
& Sanctions Pursuant to Rule 56(h) (“Pl.’s Rule 56 Mot.’_’) [Dkt. # 28]; Defs.’ Mot. to Strike Pl.’s Opp’n to
Defs.’ Mot. Summ. J. [Dkt. # 31]. l address those motions, as necessary, below.

Anclerson v. Ll'berly Lobby, ]nc., 477 U.S. 242, 255 (1986). A non-movant’s unsupported
allegations, however, are not sufficient to oppose admissible evidence put forward by the
party seeking summary judgment Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
With those principles in mind, l recount the factual background of this dispute

Aspen is a company that provides temporary staffing to federal, state, and local
government agencies as well as to private sector companies. Defs.’ l\/[ot. EX. l, Aff. of
Brandy Butler (“Butler Aff.”) ll 3 [Dkt. # 26-2]. ln 2010, Aspen secured a contract to
provide temporary sta'l"'l"lng to the District of Columbia Department of General Services
(“DGS”). Ia’. ll 4. The contract was structured in one-year terms, renewable annually at
the sole discretion of DGS. Id. llll 4-5, 7~9. As relevant here, the initial Aspen-DGS
contract for Fiscal Year 2010 required Aspen to provide one temporary employee to staff
DGS’s Eastern l\/larket facility as an assistant manager. Id. llll 5-6. Pursuant to that
requirement, Aspen placed Katrina Cuffey (“Cuffey”) in the assistant manager position.
Id. Although her title was assistant manager, Cuffey, curiously, had no supervisory duties
with respect to other employees Id. Those supervisory duties instead fell to Barry
Margeson, a permanent DGS employee. Id. ll l4; Defs.’ Mot. Ex. 2, Dep. of Yolanda Mack
(“l\/lack Dep.”) 22:18-19 [Dkt. # 26-3].

ln 201 l, DGS revised the scope of work of its contract with Aspen. Butler Aff.
ll l l. ln addition to the assistant manager role, which continued to be occupied by Cuffey,
DGS requested that Aspen provide the Eastern l\/larket facility with another temporary
employee to serve as an event coordinator. Ia’. ln September 201 l, Aspen hired Mack to

fill that new event coordinator position. Id. llll l l~l2. Mack’s employment agreement with

Aspen informed Mack that she was an at-will employee ofAspen_not DGS_and that her
employinth could be terminated at any time. See Def.’s Mot. Ex. ll [Dkt. # 26-12]. As
event coordinator, Mack interacted with Cuffey a few days a week regarding bookings at
the Eastern Market facility and related issues. See Mack Dep. 27:19-28:12.

The events giving rise to this case began a few months after Mack started in her role
as event coordinator. At that time, as Mack tells it, Cuffey began to subject Mack to
inappropriate sexual comments and advances. Mack recounts an incident in late 2011 or
early 2012 when Cuffey invited Mack to attend a “swingers party” and, in the course of
that invitation, made crude remarks regarding the potential for Mack and Cuffey to
participate in sexual intercourse with other Aspen employees. See id. at 35:14-36:7, 47:14-
21. ln addition, Mack claims that Cuffey sent her a sexually explicit text message in late
2011. See Pl.’s Rule 56 Mot. Ex. 6, Decl. onolonda Mack (“Mack Decl.”) ll 9 [Dkt. # 28-
6]. l\/lack states that Cuffey frequently remarked on the size of Mack’s breasts and asked
if she could touch them. See Mack Dep. 35:2-8, 38:12-15. The “fmal straw,” according to
Mack, was a late 2013 incident in which Cuffey offered to pay Mack to have sex with
Cuffey and an unknown third person. Id. at 40:6-11, 52:5. ln the month following that
incident, l\/lack says that she informed defendant Butler of Cuffey’s inappropriate sexual

behavior. See Pl.’s Rule 56 Mot. Ex. 3, at 21 [Dkt. # 28-3].2

2 l\/lack also claims that, following Cuffey’s invitation to the “swingers party,” she told Butler that
the invitation made her feel “uncomfortable.” l\/lack Dep. 37‘.19. But, based on the evidence, the late 2013
conversation was the first time that Mack informed an Aspen representative that she thought she was being

sexually harassed

Around that same time, Mack also confided in an Eastern Market maintenance
worker regarding Cuffey’s behavior. Mack Dep. 50:1-15. As it turns out, however, Mack’s
confidant was himself in a relationship with Cuffey and promptly informed Cuffey of
Mack’s comments Icz’. at 50:19-51:2. On February 8, 2014, Cuffey confronted Mack
outside of Eastern Market, stating that she heard Mack had “a problem” with her. [cl. at
58:6-12. Although Mack simply walked away from the conversation, the confrontation
drove her to file a formal, written complaint with Aspen management in February 2014.
Ia’. at 53:1-3, 58:15-20; see also Defs.’ Mot. Ex. 3 [Dkt. # 26-4]. lt is undisputed that Mack
experienced no inappropriate sexual comments or behavior following the filing of her
formal, written complaint. Mack Dep. 59:4.

Upon Aspen’s receipt of the complaint, Aspen immediately began to conduct an
investigation into the allegations made by Mack. Pl.’s Rule 56 Mot. Ex. 4, at 5 (“March
2014 Report”) [Dkt. # 28-4].3 As part of the investigation, Aspen management interviewed
Cuff`ey, Mack, and other individuals employed at Eastern Market. See March 2014 Report.
Notably, during l\/lack’s interview, the Aspen interviewer asked whether Mack wanted

Aspen to implement any “remedial measurels]” to change the work environment Mack

3 l\/lack states that she e-mailed a draft version of her formal, written complaint to Butler on the
evening of February 18, 2014. l\/lack Decl, ll 4. ln that draft version ofthe complaint, Mack states that she
told Butler ofCuffey’s inappropriate behavior in November 2013. See Pl.’s Rule 56 l\/lot. Ex. 7, at 34 [Dkt.
# 28-7]. According to Mack, she removed that piece of information from her final complaint at the
insistence of Aspen Vice President Harrison Boyd, who stated that it could get Butler “in trouble” with
DGS. See l\/lack Decl. ll 4. Although Boyd’s behavior, if true, was inappropriate, it does not change the
fact that Aspen promptly began its investigation based on l\/lack’s “original complaint”_i.e., the one she
sent to Butler_or the fact that Mack did not experience any sexual harassment from Cuffey following the
filing of her complaint See l\/larch 2014 Report; l\/lack Dep. 59:4.

Dep. 97:18. l\/lack responded by noting that she thought that things “should be good” once
Aspen spoke with Cuffey and that Mack was “okay with moving past all of this” in part
because she did not “really have to see” Cuffey at Eastern Market. Icl. at 98:7-14. After
the investigation was complete, Aspen issued a report of its findings and recommendations
in late l\/larch 2014. See March 2014 Report. The report noted that Aspen could not
“corroborate either the complainant’s allegations of sexual harassment, or the
respondent[’sl denial of such behavior.” ]cl. at 2. Yet the report acknowledged that there
were communications between Mack and Cuffey that, if substantiated, had the potential to
create a “hostile work environment.” Id. The report also observed that both Mack and
Cuffey gave “individual assurances” that they were “willing to continue to work at Eastern
Market and believe they can do so effectively.” Icl. To prevent any further misconduct,
however, the report required Mack and Cuffey to complete sexual harassment training. Icl.
Aspen’s vice president, Boyd, also informed Cuffey “that sexual harassment in the
workplace would not be tolerated” and that she “would be terminated” should Boyd learn
of any additional complaints Defs.’ l\/lot. Ex. 4, Aff. of Harrison Boyd (“Boyd Aff.”) ll 7
[Dkt. # 26-5].

Mack was not satisfied with the conclusions set forth in the report. During an April
2014 meeting where Aspen representatives and Mack met to discuss the report, Mack
indicated that she may have additional evidence to substantiate her claims of Cuffey’s
sexual harassment Pl.’s Rule 56 Mot. Ex. 3, at 18 [Dkt. # 28-3]. After considering Mack’s
assertions, Aspen agreed to allow Mack to supplement the internal investigation record

with her additional evidence. [a’. Mack responded by providing Aspen with a sexually

explicit image_an image that Mack claims was sent to her by Cuffey via text message.
Mack Decl. ll 9. Aspen considered the additional information and issued a finalized report
in July 2014. See Defs.’ Mot. Ex. 5 (“July 2014 Report”) [Dkt. # 26-6].

1n that July report, Aspen reiterated its findings that Cuffey’s communications had
the potential to create a hostile work environment Id. lt also determined that the sexually
explicit image had indeed been sent from Cuffey to l\/lack, but was transmitted on “personal
cell phones after normal work hours.” Icl. at 2. Nonetheless, the report notes that Cuffey
had completed her required sexual harassment training, and that Aspen “advised Ms.
Cuffey in writing that the behavior alleged by l\/ls. Mack is unacceptable and against ADC
corporate policies and procedures and that any further behavior of this nature and/or acts
of retribution would result in further disciplinary actions.” Icl. at 3. The report also stated
that an Aspen representative “will continue to monitor the worksite” to ensure “improved
working conditions” for Mack. Ia’.

From the time of her formal complaint through the end of the investigation, Mack
claims that she experienced various retaliatory actions on the part of Aspen and DGS staff`,
including increased monitoring by Aspen personnel and questioning about an incident in
which cocaine was found in an office at Eastern Market. See Mack Dep. 73:20-74:12,
76:5-77:1. Ultimately, Mack’s position was phased out as part of a DGS effort to
consolidate operations and cut costs. Butler Af`f. ll 15. ln particular, DGS requested that
Aspen bid on a new contract that provided only for the retention of the assistant manager
position#not Mack’s event coordinator position. Icl.; Defs.’ Mot. Ex. 12 [Dkt. # 26-13].

As a result of DGS’s alteration of the contract terms, Mack’s position at Eastern Market

was eliminated effective at the start of Fiscal Year 2014. Mack was informed of that fact
in September 2014, and worked through mid-October 2014. Butler Af`f. ll 16. According
to Aspen’s Human Resources and Accounting supervisor, Haile Eyob Nessibu, Mack’s
paycheck was mailed to her last known address after Mack failed to pick up the paycheck
at the office. Defs.’ Mot. Ex. 13, Af`f. of Haile Eyob Nessibu (“Nessibu Aff.”) llll 5, 7
[Dkt. # 26-14]. Mack, for her part, claims that she never received her final paycheck and,
more broadly, that the elimination of` her position was retaliatory. Mack Decl. ll l 1.
Based on the above events, Mack filed a Title VII hostile work environment and
retaliation complaint with the EEOC in January 2015. Defs.’ Mot. Ex. 10 (“Mack EEOC
Compl.”) [Dkt. # 26-11]. After receiving notice ofher right to sue in court, Mack filed this
judicial action against Aspen and Butler.4 ln her complaint, Mack alleges discrimination
and retaliation in violation of Title VH; she also presses one claim for failure to pay wages
in violation of the D.C. Code. See generally Compl. Currently before the Court is
defendants’ Motion for Summary Judgment as well as the parties’ dueling motions
stemming from discovery and deadline disputes. 1 now turn to the various issues presented

by those motions, ultimately concluding that defendants are entitled to summary judgment

4 l\/lack’s complaint also names DGS and DGS’s Acting Director, Christopher Weaver, as
defendants In a l\/larch 2017 l\/lemorandum O;iinion, 1 granted DGS and Wenver’s motion to dismiss the
claims against them. See generally 3/30/17 Mem. Op. [Dkt. # 22]. l did so after concluding that l\/lack had
failed to allege facts that, taken as true7 would state a claim that DGS was her employer for purposes of
Title Vll or establish a causal link between her complaint to Aspen and the phasing out of her position by
DGS in October 2014. See ld. at 5-9 & n.l.

STANDARD OF REVIEW

The defendants have moved for summary judgment Summary judgment may be
granted “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 fact is
“material” ifit “may affect the outcome ofthe litigation.” Montgo)nery v. Risen, 875 F.3d
709, 713 (D.C. Cir. 2017). A dispute is “genuine” if“the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anclerson, 477 U.S. at 248.

As previously noted, a court examining a summary judgment motion must accept
the nonmoving party’s statements as true and view all evidence and inferences in the
nonmoving party’s favor. See ia’. at 255. The party moving for summary judgment bears
the initial burden of identifying evidence that demonstrates that there is no genuine issue
of material fact See Celotex Corp., 477 U.S. at 323. lt can satisfy that burden by “citing
to particular parts of materials in the record,” or by “showing that the materials cited do
not establish” the “presence of a genuine dispute.” Fed. R. Civ. P. 56(c). lf` the moving
party meets its burden, it then falls to the nonmoving party_here, plaintiff-to identify
the “specific facts” and “properly support” any allegations showing there is a genuine issue
for trial. Icl. at 324 (internal quotation marks omitted); Anclerson, 477 U.S. at 256. lf the
nonmoving party fails to proffer relevant evidence, the moving party may succeed on
summary judgment by citing that “failure of proof`.” Celolex Corp., 477 U.S. at 323.

ANALYSIS
ln her complaint, l\/lack claims that defendants violated Title Vll by subjecting her

to a hostile work environment and retaliating against her for complaining about that

environment l\/lack also alleges that defendants violated the D.C. Code by illegally
withholding her final paycheck. Defendants have moved for summary judgment on all of
l\/lack’s claims. l will address l\/lack’s Title Vll and D.C. Code claims in turn.
A. Mack’s Title VII Claims

Title Vll of the Civil Rights Act of 1964, as relevant here, makes it unlawful for an
employer to discriminate against any individual with respect to “compensation, terms,
conditions, or privileges of employment” because of that individual’s “sex.” 42 U.S.C.
§ 2000e-2(a)(1). ln addition to outlawing “status-based discrimination,” Univ. ofTex. Sw.
Mea’. Clr. v. Nassar, 133 S. Ct. 2517, 2522 (2013), Title Vll also precludes employers from
retaliating against an employee “on account of an employee’s having opposed, complained
of, or sought remedies for, unlawful workplace discrimination,” ia’. (citing 42 U.S.C.
§2000e-3(a)). Mack asserts that defendants engaged in both sex discrimination and
retaliation in violation of Title Vll. l will follow the lead of the parties and analyze Mack’s
discrimination and retaliation claims separately.

l. Sex Discrimination Claim

ln this case, l\/lack grounds her discrimination claim in Cuff`ey’s inappropriate
sexual comments and behavior, which l\/lack contends created an unlawful hostile work
environment To prove an actionable “hostile work environment” sex discrimination claim

Cé

under Title Vll, a plaintiff must show that his or her workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working

environment.” Vickers v. Powell, 493 F.3d 186, 197 (D.C. Cir. 2007) (internal quotation

marks omitted) (quoting Harrz`s v. Forklz`ft Sys., Inc., 510 U.S. 17, 21 (1993)). Mack
contends that the various comments and overtures from Cuf`f`ey, made over the course of
two years, were sufficiently severe or pervasive to create a hostile work environment
Defendants counter that Mack’s hostile work environment claim was not timely exhausted,
and, in any event, fails on the merits. Unfortunately for l\/lack, defendants are correct

The first problem with Mack’s discrimination claim is that it was not timely
exhausted with the Equal Employment Opportunity Commission (“EEOC”). As with all
Title Vll plaintiffs, an employee seeking to press a hostile work environment claim must
“exhaust” her remedies by filing a timely employment discrimination charge with the
EEOC. See 42 U.S.C. § 2000e-5(e); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109-10 (2002). Typically, the time for filing with the EEOC is 180 days. But in
jurisdictions, such as the District of Columbia, where a “worksharing agreement” exists
between the EEOC and a local fair employment practices office-here, the D.C. Office of
leluman Rights~that time period may be increased to 300 days. Although there is some
dispute in the case law regarding when the 300-day as opposed to the 180-day window
applies, see, e.g., Ashraf-Hassan v. Ernl)assy of France, 878 F. Supp. 2d 164, 170-71
(D.D.C. 2012) (recounting conflicting D.C. Circuit opinions on the subject), l need not
tackle that issue here. Even accepting that the lengthier 300-day time period is applicable
to l\/lack’s claims, she fails to satisfy it

Because hostile work environment claims are “composed of a series of separate acts
that collectively constitute one ‘unlawful employment practice,”’ the applicable rules for

timeliness are different than those for Title Vll claims based upon discrete employment

actions. Wlse v. Ferrz`ero, 999 F. Supp. 2d 286, 294 (D.D.C. 2013) (quoting Morgan, 536
U.S. at 117). For a plaintiffs hostile work environment claim to be deemed timely filed
with the EEOC, a plaintiff must show that “an act contributing to the claim occurs within
the filing period,” even if other “component acts of the hostile work environment fall
outside the statutory time period.” Morgan, 536 U.S. at 117. However, and critically for
purposes of this case, that Morgan rule is not an “open sesame to recovery for time-barred
violations.” Baz`rcl v. Gotl)aum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). Rathe_r, timely
incidents and time-barred incidents must still be “part of the same actionable hostile
environment claim.” Icl. (internal quotation marks omitted). Actions qualify as part of the
same hostile environment claim, according to our Circuit, “only if they are adequately
linked into a coherent hostile environment claim_if`, for example, they ‘involve the same
type of employment actions, occur relatively frequently, and are perpetrated by the same
managers.”’ Icl. (alterations omitted) (quoting Morgan, 536 U.S. at 120-21). On the other
hand, if “certain intervening action by the employer” mitigated the original harassment,
then the time-barred acts cannot be revived for purposes of Title Vll’s exhaustion rule. Ia’.
(quoting Morgan, 536 U.S. at 118).

Applying those principles, it is clear that l\/lack’s discrimination claim is untimely.
Mack filed her EEOC complaint on January 15, 2015. For that complaint to be timely
under the 300-day limit, a component act of Mack’s hostile environment claim must have
occurred after March 21, 2014. Mack concedes that Cuf`fey’s last sexual comment occurred
in November 2013, over four months prior to that date, and that her final confrontation

with Cuffey occurred on February 8, 2014, over one month prior to that date. Mack

nonetheless argues that other actions by Aspen, including its investigation, the issuance of
the l\/larch Report, and the issuance ofthe revised July Report, serve to revive her otherwise
time-barred clams. l disagree. Mack’s own testimony_in which she acknowledges that
no sexual comments were made after the filing of her formal complaint_shows that
Cuffey’s harassment ceased long before the 300-day filing window commenced Mack
Dep. 59:4; cf Morgan, 536 U.S. at 120-21; Bal`rcl, 662 F.3d at 1251. Although l\/lack
questions Aspen’s investigation, she has not alleged that it involved the “same type of
employment actions”_i.e., inappropriate sexual remarks_or was “perpetrated by the
same” individuals_i.e., Cuffey_as the time-barred incidents. Morgan, 536 at 120-21.5
For those reasons, Mack may not rely upon the investigations or reports to revive her
otherwise time-barred hostile work environment claim.

Even putting the issue oftimeliness aside, Mack’s discrimination claim fails on the
merits. lt is well-established that an “employer’s liability for a hostile work environment
sexual harassment claim differs depending on who does the harassing.” Curry v. District
OfCola/nl)ia, 195 F.3d 654, 659 (D.C. Cir. 1999); See Vance v. BallState Unl`v., 133 S. Ct.
2434, 2441-43 (2013). l-lere, Mack concedes that Cuffey, her co-worker with no
supervisory duties, was the only Aspen employee to subject Mack to sexually inappropriate
comments.6 ln such a situation, “the employer is liable only if it was negligent in

controlling working conditions.” Vance, 133 S. Ct. at 2439. To clear the “higher hurdle

5 lndeed, as discussed below, Mack has failed to show that defendants’ actions violated their duties
under Title Vll or otherwise contributed to the allegedly hostile work environment See infra pp. 12-14.

" There is doubt whether Cuffey’s intermittent comments, made over the course of two years, are
sufficiently severe and pervasive to create a hostile work environment l need not resolve that question,
however, given that l\/lack fails to show timely exhaustion or that Aspen was negligent

under the negligence standard,” a plaintiff bears the burden of establishing that the
employer “knew or should have known of the harassment and failed to implement prompt
and appropriate corrective action.” Curry, 195 F.3d at 660. Mack has not met that burden.

Cuffey’s inappropriate behavior towards Mack began in late 201 1. But the evidence
shows that Mack did not make Aspen or Butler aware of the alleged harassment until
November 2013 at the earliest7 Mack claims that Butler did not take sufficient action to
stop the sexual harassment but at the same time, Mack has not identified any sexual
comments made by Cuffey after November 2013. To be sure, Cuffey subsequently
confronted Mack about Mack’s complaints to an Eastern Market maintenance worker (not
to Butler), and it was that confrontation that drove Mack to file her first formal, written
complaint with Aspen. Butjust a few days after the filing ofthat complaint, Aspen initiated
an investigation into Mack’s allegations See July 2014 Report 1. Pursuant to the
investigation, Aspen managers interviewed Cuf`fey, Mack, and other individuals employed
at Eastern Market Ia’. Aspen also asked Mack whether she wanted Aspen to implement
any changes to the work environment See Mack Dep. 97:1-2. Mack declined, noting that
she thought things “should be good” once Aspen spoke with Cuffey and that she was “okay
with moving past all of this” given that she did not “really have to see” Cuffey at Eastern

l\/larket. Ia’. at 97:7-14.

7 Although l\/lack told Butler in casual conversation that Cuffey’s invitation to the “swingers party”
made Mack “tilicolnfortable,” l\/lack Dep. 37:19, l\/lack’s own testimony and documents indicate that she
did not inform Butler or any other Aspen employee of the fact that she thought she was being sexually
harassed by Cuffey until November 2013. See, e.g., Pl.’s Rule 56 Mot. Ex. 7, at 32-33.

Aspen’s investigation culminated in a March 2014 report in which Aspen concluded
that it could not substantiate Mack’s allegations, but would nonetheless require Cuffey and
Mack to undergo sexual harassment training based on the potential that the environment
had been hostile. March 2014 Report 2. Boyd, Aspen’s vice president, also informed
Cuffey that she would be terminated if she engaged in any further misbehavior. Boyd Aff.
ll 7. When l\/lack was not satisfied with that outcome, Aspen gave her an opportunity to
supplement the investigatory record. Pl.’s Rule 56 Mot. Ex. 3, at 18. lt then issued a
revised report that maintained the training requirement and warned Cuffey that any
additional inappropriate actions would be grounds for further discipline July 2014 Report
4. ln short, the evidence shows both that Cuf`fey’s sexual harassment ceased at the point
when Aspen or Butler “knew or should have known of the harassment” and that Aspen
promptly initiated an investigation and reprimanded Cuffey after Mack’s first formal
complaint Curry, 195 F.3d at 660. Mack has therefore failed-to clear the “high[l hurdle
under the negligence standard” that applies to her hostile work environment claim. Icl.

2. Retaliation Claim

Mack claims that Aspen and Butler also violated Title Vll by retaliating against her
for filing a harassment complaint For Mack to succeed on that claim, which defendants
concede was timely filed with the EEOC, she must show that defendants subjected her to
a “materially adverse” employment action because of her opposition to an unlawful
employment practice. Nassar, 133 S. Ct. at 2522; Durant v. D.C. Gov ’t, 875 F.3d 685, 697
(D.C. Cir. 2017). As relevant here, that requires proof`: 1) that, following her complaint,

l\/lack was subjected to an employment action sufficiently serious to “dissuade a reasonable

worker from making or supporting a charge of discrimination,” Darant, 875 F.3d at 698
(internal quotation marks and alteration omitted) (quoting Burlington N. & Santa Fe Ry.
C0. v. Wliile, 548 U.S. 53, 57 (2006)); and 2) that the adverse action would not have
occurred in the absence of the alleged retaliation-in other words, that “her protected
activity was a but-for cause of the alleged adverse action by the employer,” Nassar, 133
S. Ct. at 2534. lf` l\/lack satisfies that burden, then it falls to the employer to provide a
legitimate, nonretaliatory reason for its action. Duranl, 875 F.3d at 697.

/-\ccording to Mack, Aspen representatives retaliated against her by questioning her
regarding a bag of cocaine found in the Eastern l\/larket office space; subjecting her to
heightened scrutiny by having a project manager more thoroughly supervise her work; and
ultimately phasing out her position at Eastern 1\/1arket.8 Mack’s first two arguments can be
disposed of quickly. Based on the record, neither l\/lack’s brief questioning (to which
Cuffey was also subjected) nor her increased supervision rises to the level of a materially
adverse employment action. Cf Clark v. Johnson, 206 F. Supp. 3d 645, 660-61 (D.D.C.
2016) (employee failed to demonstrate that employer’s interviews constituted materially

adverse employment actions); Durant, 875 F.3d at 697-98 (letter of admonishment

8 Mack also claims that DGS promised to create a full-time position for her, but reneged following
l\/lack’s harassment complaint To start, it is woith noting that after filing her internal complaint, l\/lack wasl
offered the chance to take on additional work with DGS. /-\Ithough she recognized the DGS offer as a
“dynamic oppoitunity,” she declined it, citing the demands of her “current workload.” Defs.’ l\/lot. Ex. 7
[Dkt. # 26-8]. ln any event, with respect to l\/lack’s claim regarding the denial ofa position with DGS, this
Court already dismissed DGS from the case on the basis that l\/lack failed to allege facts sufficient to show
a nexus between her sexual harassment complaints and any subsequent action by DGS. See 3/30/17 l\/Iem.
Op. at 5-9 & n. 1. l\/loreover, Mack has not demonstrated that DGS created the position l\/lack identifies-
a fact that precludes a finding of retaliation. See Tayl()r v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009).
Mack’s retaliation claim based on the “witliholding” of her paycheck also fails: The undisputed evidence
shows that l\/lack did not pick up her paycheck when instructed and that the paycheck was subsequently
mailed to Mack’s last known home address See Nessibu Aff`. llll 5, 7; Defs.’ l\/lot. Ex. 13, at 6.

informing employee of“specific deficiencies regarding his conduct” not materially adverse
action); Taylor v. Solz`s, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (requirement that employee
submit “biweekly reports on the status of her work” not materially adverse action).

T he termination of Mack’s event coordinator position, by contrast, may qualify as
a materially adverse employment action. But the evidence with respect to Mack’s
termination shows that it was DGS’s decision-not defendants’ decision-to phase out the
event coordinator position in order to cut costs See Butler Aff. ll 15. Under DGS’s new
request for services and contract with Aspen that began in Fiscal Year 2014, Aspen was
only obligated to provide Eastern l\/larket with the “assistant manager position” occupied
by Cuffey. Ia’.; Defs.’ Mot. Ex. 12. As a result ofthat “legitimate, nonretaliatory reason”_
namely, DGS’s decision to cut costs and restructure its staffing needs at Eastern Market_-
Aspen informed 1\/lack that her position at Eastern Market would not be maintained
Durant, 875 F.3d at 697. Mack has failed to meet her burden to come forward with
evidence to show that Aspen’s explanations and its decision to reduce staff in order to
comply with the new DGS contract were mere pretext for its unlawful discrimination Cf
Braa'y v. Ojj(lce OfSergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).9 Her retaliation

claim against the defendants therefore fails as a matter of law.lO

° ln her reply, l\/lack argues that Aspen may be held liable for retaliation on the basis that it failed
to take corrective action to remedy retaliatory acts on the part of DGS. But at the motion to dismiss stage,
this Court dismissed the DGS defendants from the case, determining, as relevant here, that l\/lack failed to
plead facts sufficient to establish a nexus between her protected 'fil'le Vll activity and DGS’s decision to
reduce its staffing levels Mack has not challenged or otherwise asked for reconsideration of that decision,
and her belated efforts to premise Aspen’s liability on the acts of the DGS defendants are unavailing

'0 After failing to abide by the requisite deadline to oppose defendants’ motion for summary
judgment (a deadline that had been extended by the Court at her request), l\/lack filed a belated opposition

B. Mack’s D.C. Code Claim

ln addition to her Title Vll claims, Mack asserts that defendants violated a provision
of the D.C. Wage and Hour Law, as modified by the D.C. Minimum Wage Revision Act,
when it withheld her final paycheck. See Compl. llll 31-34 (citing D.C. Code § 32-1012).
1\/lack is wrong. Even putting aside the fact that Aspen asked l\/lack to come pick up her
paycheck and then sent a paycheck to Mack’s last known address, the D.C. Code provisions
l\/lack cites dictate the minimum wages an employer must pay, not the process or timing of
wage payments See, e.g., Fudali v. Pivotal Corp., 310 F. Supp. 2d 22, 24-26 (D.D.C.
2004) (D.C. Wage and llour Law as codified in § 32-1001 et seq. “quite clearly confines
itself to minimum wage issues”). Accordingly, l\/lack’s claim under D.C. Code § 32-1012

fails

as well as a motion for Rule 56(d) reliefand Rule 56(h) sanctions See Pl.’s Rule 56 l\/lot. [Dkt. # 28]. The
Court will DENY l\/lack’s Ru|e 56 motion.

First, citing Rule 56(d), l\/lack asks this Court to defer ruling on defendants’ motion for summary
judgment until she has had the opportunity to complete additional depositions Specifically, l\/lack says she
needs to depose Butler, Boyd, and Nessibu in order to “confii‘m the facts established” by documents in
l\/lack’s possession and “c|arify the information contained in their affidavits.” l\/lem. P & A Supp. Pl.’s
Rule 56 l\/lot. 25. To start, l\/[ack did not comply with Local Civil Rule 7(m)’s meet and confer
requirement¢a failure that warrants denial of her motion. Beyond that, as defendants rightly point out,
Rule 56(d) is not a means by which a party can delay the inevitable by making conclusory allegations
regarding the need for additional discovery at the eleventh hour. See Defs.’ Opp’n Pl.’s Rule 56 Mot. 6-7
(collecting cases). Here, l\/lack has failed to satisfy her obligation to point out the “particu|ar facts” she
seeks to discover and why those facts would be material to the outcome of the litigation Smilh v. Uniled
Slales, 843 F.3d 509, 513 (D.C. Cir. 2016) (quoting C()nvertinr) v. U.S. Dep'l.]ustlce, 684 F.3d 93, 99-100
(D.C. Cir. 2012)). Even more importantly, l have taken all of l\/lack’s factual assertions_including those
that contradict the facts as told by defendants-as true for purposes ofthis motion, and have concluded that
her claims nonetheless fail as a matter of law. Given that fact, l\/lack’s attempts to use Rule 56(d) discovery
to undermine the credibility of Aspen’s witnesses are futile. See Defs.’ Opp’n Pl.’s Rule 56 l\/lot. 10-13.

Second, l\/lack moves for sanctions pursuant to Ru|e 56(11), arguing that Aspen’s declarations were
submitted “in bad faith.” Fed. R. Civ, P. 56(h). But l\/lack has not supported that claim by, for example,
showing that the declarations “directly contradicted previous sworn testimony” or were submitted “for the
sole purpose of delaying the beginning of the trial.” 1013 Charles Alan Wright & Arthur R. l\/liller, Federal
Practl`ce and Prc)cedure § 2742 (4th ed. 2013). The mere fact that l\/lack disputes the assertions contained
in Aspen’s declarations does not make this situation analogous to those “few situations in which the courts
have resorted to Ru|e 56(h).” Id.

CONCLUSION

For the foregoing reasons, the Court GRANTS defendants’ Motion for Summary

Judgment An Order consistent with this decision accompanies this Memorandum

iam

nimmwa

United States District ludge

Opinion.ll

" Because l am granting defendants’ l\/lotion for Summary Judgment even having considered
plaintiffs opposition and the suppoiting materials, l will DENY AS l\/lOOT defendants l\/lotion to Strike
Plaintiff’s Opposition [Dkt. # 31], notwithstanding the fact that Mack’s opposition was filed late, without
motion, in violation of Federal Rule of Civil Procedure 6(b). l will similarly DENY AS l\/lOOT Aspen’s
l\/lotion to Quash PlaintiffCounse|’s Notice of Depositions [Dkt. # 24]. .

Mack v. Aspen of D.C., Inc.

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