UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RICKIE WILLIAMS, )
)
Plaintiff, )
)
v. ) No. 16-cv-0932 (KBJ)
)
VERIZON WASHINGTON, D.C. INC., )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Rickie Williams has filed the instant lawsuit against his longtime
employer, Verizon Washington, D.C. Inc. (“Verizon”), under the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. Williams’s two-count complaint
alleges that Verizon unlawfully interfered with his rights under the FMLA (Count I) and
retaliated against him (Count II) when it terminated him after he returned to work from
having taken FMLA medical leave. (See Am. Compl. ¶¶ 44–55.) Williams’s specific
allegations pertain to a saga that involved a trip to New Orleans, a lost cell phone, and
Verizon’s subsequent investigation into William’s asserted reasons for taking leave.
(Id. ¶¶ 17–23, 25–29, 31–41.) Williams claims that Verizon “accused him[,]” without
evidence, “of feigning his illness” and “l[ying] to [Verizon]” (id. ¶ 53), and later
unlawfully terminated him “for taking this leave, resulting in monetary loss including
loss of employment” (id. ¶ 47).
Before this Court at present is Verizon’s motion to dismiss and/or motion for
summary judgment. (See Def.’s Mot. to Dismiss and/or Mot. for Summ. J. (“Def.’s
1
Mot.), ECF No. 28; Def.’s Mem. in Supp. of Mot. to Dismiss and/or Mot. for Summ. J.
(“Def.’s Mem.”), ECF No. 28-1.) Among other things, Verizon argues that Williams’s
interference claim must fail because it is duplicative of his retaliation claim, and that
Verizon granted Williams the requested FMLA leave, and thus did not interfere with
Williams’s exercise of his FMLA rights. (See Def.’s Mem. at 14–17.) 1 Verizon also
contends that Williams cannot prevail on the retaliation claim, because Verizon has
articulated a legitimate, non-discriminatory reason for Williams’s termination—namely,
that during the investigation, Williams repeatedly lied to Verizon about what he was
doing while he was on leave—and Williams has not assembled any evidence to show
that this legitimate reason for his termination was pretextual. (See id. at 17–25.)
This Court has reviewed the evidence that both parties have submitted in
conjunction with their briefing of Verizon’s motion, and for the reasons explained
below, it finds that Williams has failed to present any evidence that could support a
reasonable jury finding that Verizon is liable for FMLA interference or retaliation under
the circumstances presented here. Therefore, Verizon’s motion will be GRANTED,
and summary judgment will be entered in Defendant’s favor on all of Williams’s
claims. A separate order consistent with this Memorandum Opinion will follow.
I. BACKGROUND
A. Basic Facts 2
Williams began working for Verizon in 1979, and at all times relevant to this
case, he worked as a systems technician at Verizon’s garage in Northeast Washington,
1
Page numbers herein refer to those that the Court’s electronic case-filing system automatically
assigns.
2
The following facts concerning Williams’s FMLA request, his travel to New Orleans, and Verizon’s
2
D.C. (Def.’s Statement of Undisputed Material Facts (“Def.’s Stmt.”), ECF No. 28-2,
¶¶ 1–2.) Williams had an approved Chronic Health Condition (“CHC”) certification for
migraines under the FMLA, which was effective for the 12-month period between
March 8, 2013, and March 7, 2014. (See id. ¶¶ 16–17.) Once an employee has an
approved CHC certification, absences related to that certification are automatically
approved if the employee “connects the absence to his[] CHC case number when he[]
calls out sick.” (Id. ¶ 16.)
1. Williams’s FMLA Leave And Travel To New Orleans
The events underlying Williams’s leave and termination all unfold over a span of
several days in March of 2014. Williams was scheduled to work on Friday, March 7;
Saturday, March 8; and Monday, March 10, 2014. (See id. ¶ 30.) Williams’s aunt
passed away in New Orleans, Louisiana, on March 4 (see id. ¶ 28), and on March 5,
Williams purchased a non-refundable plane ticket to New Orleans that would depart
from the Baltimore-Washington International Airport on March 7, 2014 at 6:45 AM.
(See id. ¶ 29.) 3
subsequent investigation into his FMLA leave are not disputed, unless otherwise noted. In his
opposition to Defendant’s motion, Williams submitted (one day late) a “Statement of Material Facts in
Dispute” in which he paraphrases each statement that Verizon makes in its statement of undisputed
facts, in contravention of this Court’s General Order and Guidelines, which requires the responding
party to “restate the movant’s statement of undisputed material fact” before noting any responses.
(General Order and Guidelines for Civil Cases, ECF No. 6, ¶ 5(d)(iii); see Pl.’s Statement of Material
Facts in Dispute (“Pl.’s Stmt.”), ECF No. 30; see also Def.’s Reply in Supp. of its Mot. to Dismiss
and/or Mot. for Summ. J. (“Def.’s Reply”), ECF No. 32, at 5 n.1.) Unless Williams’s Statement of
Material Facts explicitly notes a factual objection or dispute, this Court will construe Williams’s
paraphrases of Defendant’s statements as an adoption of the facts as Defendant has stated them.
3
The record is not clear on whether Williams booked the ticket before, or after, he learned of his aunt’s
death. The statement of undisputed facts does not speak to this point; in his amended complaint,
Williams claims that he learned of his aunt’s death on March 6, 2014 (see Am. Compl. ¶ 15)—after he
had booked a ticket for New Orleans, which occurred the previous day.
3
On the morning of March 7, while he was at the airport, Williams called in sick
to Verizon’s FMLA telephone line, referencing his CHC certification for migraines.
(See id. ¶¶ 32, 36; see also Am. Compl. ¶¶ 10, 18–19.) He boarded his flight and
landed at the Charlotte Douglas International Airport for a connecting flight. (See
Def.’s Stmt. ¶¶ 37–39.) During this layover, while he was still inside the Charlotte
airport, Williams misplaced his work cell phone, which had fallen out of his pocket.
(See id.) Around 9:50 AM, Williams’s supervisor, Richard Frames, received a call from
Williams’s work cell phone, and an airport worker who identified himself as Mr. Sherry
left a message stating that he had found the cell phone and was calling the last-dialed
numbers on the phone in an effort to locate its owner. (See id. ¶¶ 40–41; see also Am.
Compl. ¶ 27.) When Frames called Sherry back at 10:15 AM, Sherry said that he had
located Williams and was on his way to return the cell phone to him. (See Def.’s Stmt.
¶ 42.)
Williams then boarded the connecting flight from Charlotte to New Orleans, and
some time after his arrival in New Orleans, at approximately 1:10 PM Central Time,
Williams called Frames and told him that he would not be at work the following day,
March 8, 2014, “because of illness.” (Id. ¶ 44 (internal quotation marks omitted).)
Williams also called the Verizon employee responsible for keeping track of vacation
hours for Williams’s crew, and requested a vacation day for Monday, March 10, 2014,
which is the same day that he returned to Washington, D.C. from New Orleans. (See id.
¶ 47.)
2. Verizon’s Investigation And Williams’s Termination
After receiving the call from Sherry and speaking to him on Williams’s work
phone on March 7, 2014, Williams’s supervisor (Frames) notified his area manager,
4
William Alexander, that “Williams had called out sick that day, but his Verizon cell
phone had been found in the Charlotte Airport.” (Id. ¶ 51.) Alexander directed Frames
to conduct an investigation, which included two investigatory interviews with Williams.
(See id. ¶¶ 52, 54, 60.)
The first interview took place on Tuesday, March 11, 2014, the day that Williams
returned to work after his FMLA leave and his vacation day. (See id. ¶¶ 48, 54.)
Frames, Alexander, and Derrick Griffin, a union representative, participated in the
interview. During the interview, when Williams was asked about what he did on March
7, 2014, Williams stated, “I got up, called the Center and requested FMLA leave. I
to[ok] medicine, and went back to bed. I made a few calls during the day, that kind of
stuff.” (Id. ¶ 57 (internal quotation marks omitted).) After the interview, Alexander
and Frames obtained the bill for Williams’s company cell phone, which showed that
calls had been made from Charlotte, North Carolina, and Pearl River, Louisiana, on
March 7, 2014. (See id. ¶¶ 58–59.)
The following month, on April 21, 2014, Frames and Alexander conducted a
second investigatory interview with Williams, who was accompanied by a union
representative. (See id. ¶ 60.) At this interview, Frames asked the same questions that
he had asked at the March 11 interview, and the union representative read Williams’s
answers from that interview, which Williams confirmed as correct. (See id. ¶¶ 61–62.)
Frames then told Williams that they were looking into his leave because Frames had
received a phone call on March 7, 2014, from someone who said he had found
Williams’s phone in the Charlotte airport. (See id. ¶ 63.) Although Williams initially
said that his son had his cell phone that day, after asking for a break, Williams
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“admitted that he had traveled to Louisiana for his [a]unt’s funeral.” (Id. ¶ 66.)
Williams explained that “someone died on me that Friday” (his aunt had actually passed
away on Tuesday, March 4, 2014). (Id. ¶ 67 (internal quotation marks omitted).)
On May 9, 2014, Verizon terminated Williams for “lying about his whereabouts
and misrepresenting facts” during its investigation. (Id. ¶ 68.) Williams’s termination
letter cites three violations of the Verizon Code of Conduct stemming from his
misrepresentations relating to his FMLA leave, including that he “[m]isrepresented
[his] health status and as a result received benefits to which [he was] not entitled[,]”
that he “[f]alsified records when [he] reported [he was] sick[,]” and that he “[was] not
honest and forthcoming during the investigation.” Employee Contact Memorandum
(“Termination Letter”), Ex. P to Pl.’s Opp’n, ECF No. 30-15, at 1–2 (listing
“independent and alternate grounds for discipline”). Williams “admits he knew” that
his misrepresentations about his whereabouts during Verizon’s investigation violated
Verizon’s Code of Conduct (Def.’s Stmt. ¶ 73; see also id. ¶ 74), which requires
employees to “be honest and forthcoming at all times during an investigation” and
states that “[m]isrepresenting facts or failing to disclose facts during an investigation is
strictly prohibited.” (Id. (quoting Verizon Code of Conduct, Ex. 3 to Def.’s Mot. to
Dismiss and/or Mot. for Summ. J., ECF No. 28-5, at 10).)
B. Procedural History
Williams filed the instant FMLA lawsuit against Verizon in the Superior Court of
the District of Columbia on April 13, 2016. (See Compl., ECF No. 1-1, at 3.)
Approximately one month later, on May 17, 2016, Verizon removed Williams’s action
to this Court. (See Notice of Removal, ECF No. 1, ¶ 5.) In the original two-count
complaint, Williams alleged that Verizon interfered with his FMLA rights by denying
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his request for FMLA leave on March 7, 2014, and March 8, 2014, and further, that
Verizon retaliated against him by accusing him of feigning his illness and subsequently
terminating him. (See Compl. ¶¶ 3446.) Verizon subsequently answered the
complaint, 4 and the parties moved on to discovery. (See Answer, ECF No. 4.)
During discovery, Verizon moved for sanctions pursuant to Federal Rule of Civil
Procedure 11 and asked the Court to dismiss the case because Williams and his attorney
had produced evidence that Verizon argued “should have placed Plaintiff’s counsel on
notice that certain critical allegations in the [c]omplaint are false” (Def.’s Mot. for
Sanctions, ECF No. 14, at 1), and that his client’s claims are not “grounded in fact” (id.
at 2). As grounds for this motion, Verizon explained that the original complaint
represented that Williams had decided to attend his aunt’s funeral in New Orleans last-
minute, after he had already called in sick, but that Williams produced debit card
records showing that he had in fact purchased his ticket two days prior, on March 5,
2014. (See Mem. in Supp. of Def.’s Mot. for Sanctions, ECF No. 15, at 3.) Verizon
further contended that the original complaint’s allegation that Verizon had denied
Williams’s FMLA leave was untrue, based on copies of FMLA paperwork that Williams
had produced, which established that Verizon had in fact approved his FMLA requests
for March 7 and 8, 2014. (See id. at 7–8.)
The Court denied Verizon’s motion for sanctions, insofar as Verizon sought
dismissal of the complaint, and also declined to award attorney’s fees, see Williams v.
4
Williams initially named Verizon Communications Inc. as the defendant; the parties subsequently
filed a Joint Motion to Substitute Proper Party Defendant to substitute Williams’s correct employer,
Verizon Washington, D.C. Inc. (ECF No. 9), which this Court granted. (See Min. Order of June 29,
2016.)
7
Verizon Washington, D.C. Inc., 322 F.R.D. 145, 146 (D.D.C. 2017), but it ordered
Williams to amend his complaint to reflect the new factual allegations that came into
light in discovery (see Min. Order of Feb. 28, 2017). Thereafter, Williams amended his
complaint (see Am. Compl. ¶¶ 12, 46), and adjusted the interference claim to be based
on the contention that “Verizon [] terminated him . . . for taking [FMLA] leave” (id.
¶ 47.)
On April 11, 2017, Verizon filed a motion to dismiss and/or motion for summary
judgment with respect to William’s Amended Complaint. Because discovery has
concluded, Verizon’s motion is fairly presented as one for summary judgment, and this
Court will treat it as such. In its motion, Verizon argues that Williams has failed to
establish a valid FMLA interference claim because his interference claim is based on
the same set of facts as his retaliation claim, and that, in any event, Williams has
presented no evidence that Verizon interfered with the exercise of his FMLA rights.
(See Def.’s Mem. at 14–17.) Verizon further contends that Williams has failed to
support his FMLA retaliation claim, because Williams has not shown the causation that
a prima facie case for retaliation requires, and because Verizon has put forward a
legitimate reason for terminating Williams—the fact that he lied during the
investigation in violation of Verizon’s Code of Conduct—which Williams has failed to
rebut as pretextual. (See id. at 17–25.)
In his opposition to Verizon’s motion for summary judgment, Williams appears
to maintain that Verizon interfered with his exercise of rights under the FMLA, first,
when his supervisors inquired into his leave, and then when they subsequently fired
him, because an investigation alone “make[s] it triply difficult for an employee to
8
obtain FMLA[,]” and Verizon further infringed on his FMLA rights when it made the
decision to fire him. (Pl.’s Opp’n to Verizon’s Mot. to Dismiss and/or Mot. for Summ.
J. (“Pl.’s Opp’n”), ECF No. 30, at 18; see id. at 11–14.) Williams also contends that his
firing was retaliatory, because Verizon never ascertained whether he was actually sick
during his FMLA leave, and deviated from its “usual progressive discipline policy” in a
way that suggests that the stated reason for firing Williams was not the actual reason he
was fired. (Id. at 16.)
II. LEGAL STANDARDS
A. FMLA Interference Claims
The FMLA provides a cause of action for an employer’s interference with its
employees’ attempts to exercise any rights granted under the FMLA. See 29 U.S.C.
§ 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided under this subchapter.”).
To prevail on an FMLA interference claim, a plaintiff must “show both that her
employer ‘interfered with, restrained, or denied the exercise of or the attempt to
exercise, any right provided’ by the FMLA, and that she was prejudiced thereby.”
McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 7 (D.C. Cir. 2010)
(alteration omitted) (quoting 29 U.S.C. § 2615(a)(1)); see also Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 87 (2002)).
A valid FMLA interference claim exists when an employer takes an action “with
a reasonable tendency to interfere with, restrain, or deny the exercise or attempt to
exercise an FMLA right[,]” even if the action “fails to actually prevent such exercise or
attempt.” Gordon v. U.S. Capitol Police, 778 F.3d 158, 165 (D.C. Cir. 2015) (internal
9
quotation marks and citation omitted). Thus, interference claims “include, for example,
not only refusing to authorize FMLA leave, but discouraging an employee from using
such leave” or “manipulation . . . to avoid responsibilities under FMLA[.]” 29 C.F.R.
§ 825.220(b).
B. FMLA Retaliation Claims
The FMLA also provides covered employees with a cause for action when an
employer has taken adverse action against the employee because the employee engaged
in an activity that is protected under the statute. Such retaliation claims are commonly
brought under 29 U.S.C. § 2615(a)(2), which states that it is “unlawful for any
employer to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.” Id. § 2615(a)(2); see Kasten
v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 10 (2011) (referring to
§ 2615(a)(2) as an “antiretaliation provision[]”); Gordon, 778 F.3d at 162 (noting that
“Congress derived . . . § 2615(a)(2)[] from Title VII’s retaliation provision”). In this
Circuit, claims arising out of an alleged act of retaliation have also been recognized
under the interference provision of the statute, 29 U.S.C. § 2615(a)(1). See Gordon,
778 F.3d at 161 (acknowledging that a retaliation claim may arise under § 2615(a)(1)
(citing Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367–68
(D.C. Cir. 2000))); see also Hopkins v. Grant Thornton Int’l, 851 F. Supp. 2d 146, 152
(D.D.C. 2012) (“[U]nder 29 U.S.C. § 2615(a)(1) ‘the Act’s prohibition against
‘interference’ prohibits an employer from discriminating or retaliating against an
employee or prospective employee for having exercised or attempted to exercise FMLA
rights,’ see 29 C.F.R. § 825.220(c).”), aff’d sub nom. Hopkins v. Grant Thornton, LLP,
529 F. App’x 1 (D.C. Cir. 2013).
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Regardless of the precise subsection of FMLA under which a retaliation claim
arises, courts have applied the burden-shifting framework under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to evaluate retaliation claims under the FMLA.
See Gordon, 778 F.3d at 161 (analyzing a retaliation claim arising under both
§ 2615(a)(1) and § 2615(a)(2) using the McDonnell Douglas framework). Under the
McDonnell Douglas framework, an employee must first establish a prima facie case that
creates a presumption of retaliation, by showing (1) that “the employee engaged in a
protected activity under [the FMLA,]” (2) that he “was adversely affected by an
employment decision[,]” and (3) that “the protected activity and the adverse
employment action were causally connected.” Gordon, 778 F.3d at 161 (internal
quotation marks omitted) (quoting Gleklen, 199 F.3d at 1368). Once the employee has
established a prima facie case, the burden then “shifts to the employer to articulate
some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell
Douglas, 411 U.S. at 802. If the employer shows a legitimate reason for the adverse
action, the burden shifts back to the employee to show that the legitimate reason was
pretextual—i.e., that the reason is a false one, and that the real motivation for the
adverse action was to retaliate against the employee. See Young v. United Parcel Serv.,
Inc., 135 S. Ct. 1338, 1354 (2015).
In this Circuit, district courts applying the McDonnell Douglas framework at the
summary judgment stage “need not—and should not—decide whether the plaintiff
actually made out a prima facie case under McDonnell Douglas” once “an employer has
asserted a legitimate, non-discriminatory reason” for the adverse employment action.
Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008) (emphasis in
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original). Although Brady involved claims arising under Title VII, the D.C. Circuit has
held that “[t]he analytical framework for [a] claim of retaliation” under various other
statutes, including the FMLA, “is essentially the same as that applicable to a claim of
discrimination under Title VII.” McFadden, 611 F.3d at 6; cf. Walker v. Johnson, 798
F.3d 1085, 1091 (D.C. Cir. 2015) (explaining that retaliation claims and discrimination
claims are both analyzed under the burden-shifting framework of McDonnell Douglas).
Accordingly, courts in this district have applied McDonnell Douglas to FMLA
retaliation claims, see, e.g., Long v. Endocrine Soc’y, 263 F. Supp. 3d 275, 282 (D.D.C.
2017); Thomas v. District of Columbia, 227 F. Supp. 3d 88, 99–100 (D.D.C. 2016), and
the D.C. Circuit appears to have ratified this approach, see McFadden, 611 F.3d at 4
(recognizing that that the district court below “did not pause to consider [the] prima
facie case” in “keeping with Brady” in its analysis of the FMLA claim); Miles v.
Howard Univ., 653 F. App’x 3 (D.C. Cir. 2016) (affirming the district court, which
applied the Brady modification in the FMLA context).
C. Motions For Summary Judgment Under Federal Rule 56
Under Federal Rule of Civil Procedure 56, a 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 material
fact is one that “might affect the outcome of the suit under the governing law,” and a
dispute about a material fact is only genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689,
692 (D.C. Cir. 2008) (internal quotation marks and citation omitted). The movant is
entitled to judgment as a matter of law if the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
12
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). In evaluating motions for summary judgment, a court must
review all evidence in the light most favorable to the nonmoving party, and draw all
inferences in the nonmoving party’s favor. See Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam).
Importantly, it is well established that the nonmoving party must show more than
“[t]he mere existence of a scintilla of evidence in support of [its] position[.]” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see also Potter v. District of
Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009) (“[M]erely colorable or not significantly
probative evidence . . . is insufficient to defeat a summary judgment motion.” (internal
quotation marks and citation omitted)). Indeed, the nonmovant must present specific
facts and evidence that support its allegations and are sufficient to enable a reasonable
jury to find in its favor. See Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) (“[A]
mere unsubstantiated allegation . . . creates no genuine issue of fact and will not
withstand summary judgment.” (citation omitted)).
III. ANALYSIS
The FMLA interference and FMLA retaliation claims that Williams has brought
in this case are based on the same set of facts: that Verizon investigated him, and then
terminated him, after he returned from taking FMLA leave. As an initial matter, there
can be “a good deal of overlap” between retaliation claims and interference claims,
Gordon, 778 F.3d at 161, as explained fully below, and the fact that Williams’s two
claims arise out of the same facts does not preclude the Court’s consideration of both
legal theories. Even so, this Court finds that Williams has failed to point to anything
13
with respect to either claim that would create more than a “mere existence of a scintilla
of evidence” in support of Williams’s claims. Liberty Lobby, Inc., 477 U.S. at 252.
That is, the record evidence is not sufficient to support either Williams’s contention
that Verizon unlawfully restrained the rightful exercise of his FMLA rights, or his claim
that Verizon illegitimately discriminated against him on the basis of his having taken
FMLA leave when it fired him. Consequently, Verizon is entitled to summary judgment
on both counts.
A. Williams’s Amended Interference Claim Need Not Be Dismissed As
Duplicative
As its opening salvo, Verizon asserts that the Court need not reach Williams’s
interference claim as set forth in his Amended Complaint (Count I), because it is
entirely duplicative of his retaliation claim (Count II). (See Def.’s Mem. at 14–15.)
Verizon argues that, because the FMLA provides “two distinct claims”—an interference
claim under 29 U.S.C. § 2615(a)(1), and a retaliation claim under 29 U.S.C.
§ 2615(a)(2)—Williams cannot maintain both an interference claim and a separate
retaliation claim based on the same set of facts, which, here, involve approved FMLA
leave followed by the termination of Williams’s employment. (Id. at 14 (quoting
Roseboro v. Billington, 606 F. Supp. 2d 104, 107 (D.D.C. 2009).)
This argument is easily disposed of, as this Court has no doubt that a plaintiff
alleging substantially similar facts as those that Williams asserts here can seek the
simultaneous advancement of two distinct theories of FMLA liability. As noted above,
retaliation claims brought under section 2615(a)(2), on the one hand, and interference
claims brought under section 2615(a)(1), on the other, can sometimes “overlap[,]”
Gordon, 778 F.3d at 161; and, indeed, the D.C. Circuit has expressly recognized that a
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retaliation claim in particular can be stated under both FMLA provisions, id. The
standard retaliation claim involves the allegation that the plaintiff’s employer sought to
punish him for exercising his right to take leave under the FMLA, and this claim can be
deemed cognizable under the language of section 2615(a)(2), which it makes “unlawful
for any employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C.
§ 2615(a)(2); see Gordon, 778 F.3d at 161; Long, 263 F. Supp. 3d at 281. Some courts
have also found that, because of the narrowness of the language in section 2615(a)(2),
such facts state a claim under section 2615(a)(1). See Thomas, 227 F. Supp. 3d at 99
n.3 (discussing different courts’ analysis of retaliation claims); see also Gleklen, 199
F.3d at 1367.
Moreover, and significantly for present purposes, a plaintiff can allege that his
employer’s retaliatory response to his use of leave has interfered with that employee’s
right to exercise leave in the future, implicating the FMLA’s interference provision.
See Gordon, 778 F.3d at 161 (positing a situation in which “acts of the employer that
operate as retaliation for [an] initial request may also operate as interference with []
later requests for use”); see also 29 C.F.R. § 825.220(c) (“The Act’s prohibition against
interference prohibits an employer from discriminating or retaliating against an
employee or prospective employee for having exercised or attempted to exercise FMLA
rights.”). In light of this ‘retaliatory interference’ scenario, the same set of facts can
actually form the basis for two different FMLA claims: that the employer unlawfully
retaliated against the employee for taking leave in the past, and also that the employer’s
retaliatory act will substantially interfere with that employee’s right to take leave in the
15
future. In other words, it is plausible that the same retaliatory act can undergird two
different legal theories under the FMLA, and thus, separate interference and retaliation
claims that pertain to only one set of actions by the employer are not necessarily
duplicative.
Williams has been clear in his complaint and subsequent briefs that he wishes to
bring claims for both interference and retaliation (see, e.g., Am. Compl. (asserting two
separate counts)), and given the legal analysis set forth above, this Court sees no reason
to dismiss his interference claim as necessarily duplicative of his retaliation claim on its
face. Consequently, this Court will decline to follow Verizon’s suggestion that
Williams’s “interference claim should be dismissed with prejudice” because his claim
“is one of retaliation only, not interference” (Def.’s Mem. at 15), and will proceed to
analyze both claims.
B. Williams’s Interference Claim Fails Because There Is Insufficient
Evidence That Verizon Discouraged The Exercise Of His Rights Under
The FMLA
Both parties agree that Verizon approved Williams’s request to take FMLA leave
on March 7 and 8, 2014 (see Def.’s Stmt. ¶¶ 18, 23–24), and per Williams’s amended
complaint, Williams’s interference claim is not based on Verizon’s outright refusal of
leave (see Am. Compl. ¶ 46). Instead, Williams’s interference theory now rests on the
fact that Verizon investigated his FMLA leave after his return to work, and
subsequently fired him. Although Williams’s legal assertions are less than clear, he
appears to be making two related contentions: (1) that Verizon restrained the taking of
FMLA leave by investigating the circumstances of his FMLA leave (see Pl.’s Opp’n at
14–15), and (2) that Verizon discouraged the taking of FMLA leave by terminating him
on return from leave (see id. at 15–16).
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Williams is correct when he asserts that the fact of Verizon’s approval of the
FMLA leave, by itself, does not preclude a valid interference claim, if Verizon
nevertheless acted in a manner that had a “reasonable tendency[,]” Gordon, 778 F.3d at
165, to thwart the taking of FMLA leave. (See Pl.’s Opp’n at 11.) But, notably,
Williams has not alleged, nor offered any evidence to support, that Verizon took any
action with respect to Williams’s taking leave. To the contrary, by all accounts,
Williams appears to have taken the requested medical leave without hindrance, and the
factual bases for Williams’s interference claim—Verizon’s investigation and its
termination of him—occurred after he appears to have taken his leave successfully
based on his pre-approved FMLA certification. See Gordon, 778 F.3d at 165
(recognizing that interference claims are “forward-looking[,]” as distinguished from
“backward-looking” retaliation claims). Nor is there any evidence that Verizon dragged
its feet in acquiescing to the specific instances of his leave on March 7, 2014, and
March 8, 2014 after the fact. (See Def.’s Stmt. ¶¶ 18, 23–24.) Indeed, at the time that
he called in sick and requested leave for March 8, 2014, Williams’s certification for
migraines had expired (see id. ¶¶ 19–20), but Verizon permitted Williams to obtain a
FMLA certification from his physician for back pain some time later, and retroactively
approved Williams’s FMLA leave for March 8, 2014 based on that certification (see id.
¶¶ 23–24).
The best that Williams can do to sustain his interference claim on the facts
presented here is to maintain that what Verizon did after he returned from FMLA leave
(i.e., investigate the circumstances of Williams’s leave and ultimately terminate him)
discouraged any potential future FMLA leave he may have wanted to take. But there is
17
no support in the record for this theory of interference, either. As to the investigation,
Williams appears to suggest that merely by asking questions about the circumstances of
his FMLA leave, Verizon unlawfully discouraged the taking of any further leave, citing
an Eleventh Circuit case where the employer was found to have interfered with an
employee’s FMLA leave by asking for additional documentation of her FMLA need.
(Pl.’s Opp’n at 14–15 (citing Diamond v. Hospice of Fla. Keys, Inc., 677 F. App’x 586,
594 (11th Cir. 2017)).) But in that case, the employer sought additional information as
it decided whether or not to approve the employee’s FMLA leave request. See
Diamond, 677 F. App’x at 593–594 (finding that the employer’s request for food
receipts and other additional documentation in assessing the employee’s “need for
leave” was an impermissible attempt to “mak[e] approval of her leave requests more
difficult”). Here, the evidence is clear that Verizon’s investigation was not being
conducted to construct additional hoops for Williams to traverse before his FMLA leave
would be approved; instead, Verizon commenced investigating because of a reasonable
suspicion that Williams had been deceptive about his illness on the day he invoked the
FMLA. (See Def.’s Stmt. ¶¶ 49–52 (recounting the fact that Frames received a call
from Williams’s cell phone in Charlotte during Williams’s FMLA leave, and Alexander
directed Frames to conduct an investigation only after Frames notified him of that
fact).)
Verizon’s legitimate attempt to look into how Williams had conducted himself
during the FMLA medical leave that Verizon had authorized was entirely warranted
based on the troubling facts that were brought to the company’s attention, and nothing
in the record indicates that the investigation had the tendency to thwart any valid
18
request for medical leave by Williams in the future. Indeed, no employee who had a
valid claim for medical leave and has used that leave appropriately would be bothered
by the questions that Williams’s supervisors asked. And to suggest otherwise, as
Williams does here, is to accept the preposterous contention that employees can abuse
the FMLA leave process with impunity, and that employers cannot do anything to audit
or supervise the leave process, because to ask questions effectively makes it “triply
difficult” for employees “to obtain FMLA” and to use it however they want, even
inappropriately. (Pl.’s Opp’n at 18.) See Sharif v. United Airlines, Inc., 841 F.3d 199,
206 (4th Cir. 2016) (upholding an employer’s actions in terminating an employee
suspected of lying about his FMLA leave, and remarking that “[w]hile a company may
not deny valid requests for leave . . . it is equally important to prevent the FMLA from
being abused”). This Court concludes that Verizon’s legitimate investigation of what
appeared to be a dubious FMLA leave claim was not an act that interfered with an
employee’s right to bring valid FMLA requests in the future. At most, Verizon’s
investigation would have deterred false future FMLA claims, which does not constitute
interference with the exercise of FMLA rights as a matter of law.
In regard to Williams’s suggestion that Verizon’s termination of his employment
constituted unlawful interference, it is undisputed that it was only after the company’s
investigation and Williams’s repeated misrepresentations during the investigatory
interviews that Verizon fired him. (See Def.’s Stmt. ¶¶ 53–71.) And in this Circuit, it
is well established that “[r]ights to FMLA leave—whether in the application phase,
medical certification phase, or off-work phase—do not protect an employee’s job
against a legitimate, unrelated, reason for separation from employment.” Hopkins, 851
19
F. Supp. 2d at 155; see also Hopkins, 529 F. App’x at 3 (rejecting an interference claim
where there was a “termination for a valid business reason”). Here, it is undisputed that
Williams’s misrepresentations during the investigation violated Verizon’s Code of
Conduct (see Def.’s Stmt. ¶¶ 73–74), and such a violation is a legitimate business
reason for Verizon’s decision to fire Williams. Williams cannot shield himself from
that outcome merely because the termination of his employment also prevented the
hypothetical future exercise of his FMLA rights.
Undaunted, Williams maintains that Verizon investigated his use of FMLA leave,
and then terminated him, without inquiring into whether he was really sick, and that,
ultimately, Verizon penalized him “because he was not in the District of Columbia” and
“was not in bed for 24 hours” during his leave. (Pl.’s Opp’n at 15.) This construction
of the facts is belied by the facts in the instant record, which establish quite clearly that
Williams lied about his whereabouts when he was questioned during the investigation,
and that his deceptiveness was one of the reasons for his termination. (See Termination
Letter at 1 (stating that Verizon determined that Williams misrepresented his health
status, falsified records, and was not honest and forthcoming during the investigation);
see also Def.’s Stmt. ¶¶ 51–52, 68 (demonstrating that Williams was not terminated
until after Verizon had investigated the matter for more than two months, even though it
was aware that Williams had traveled to New Orleans at the outset).) Williams’s
suggestion that Verizon had to verify Williams’s malingering before it could fire him is
also inconsistent with the law, which does not mandate that an employer amass
“medical documentary evidence” that an employee is “feigning his illness” (Am.
Compl. ¶ 53), prior to responding to suspected FMLA leave violations. See Sharif, 841
20
F.3d at 206 (finding, in a case where plaintiff was investigated and discharged after the
employer discovered that he was traveling during his FMLA leave, that the employer
“had no obligation to pursue additional investigation when it had more than ample
reason to believe it had been lied to[,]” as long as it had made a reasonably informed
decision). Williams’s similar suggestion that Verizon interfered with his exercise of
FMLA rights by attaching additional restrictions to what constitutes valid FMLA leave,
and firing him based on the failure to meet those made-up restrictions (see id. at 15
(“Their insistence that he remain in D.C. and be in bed for 24 hours is made all the
more bizarre, when not a single Verizon employee determined them to be qualifying
conditions for FMLA leave.”); id. (“If he was sick, in bed, attending a funeral in
Shanghai, and Verizon had notice of his leave, it is an FMLA qualifying incident.”)), is
likewise meritless. The record shows that Verizon’s investigation was a reasonable
attempt to determine what Williams actually did on the days he called in sick (see
Def.’s Stmt. ¶¶ 56–59), in order to determine whether his request for leave was valid in
light of the travel information Verizon received, and not an effort to impose new rules
about what employees are permitted to do when they are truly sick, as Williams
suggests.
For all his talk of actual illness, Williams has essentially ignored what is by far
the most salient point as far as the interference claim is concerned: regardless of
whether Williams actually had an FMLA-qualifying illness on March 7 and 8, 2014,
Verizon was entitled to conduct an investigation based on its reasonable belief that he
was not ill and was instead feigning illness and fraudulently claiming FMLA leave. See
George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may be
21
justified by a reasonable belief in the validity of the reason given even though that
reason may turn out to be false.”). If Williams was telling the truth and was in fact ill,
then Verizon’s investigation could very well have revealed that fact. But in the course
of Verizon’s inquiry, Williams told several blatant lies about his conduct while on leave
(see Def.’s Stmt. ¶¶ 56–57, 64–67), and Verizon was entitled to treat his egregious
violation of the company’s Code of Conduct as the serious infraction that it was, by
opting to terminate his employment. Thus, to the extent that Williams asserts an
interference claim with respect to his taking of FMLA leave and Verizon’s ultimate
termination of his employment, there is no evidence that would allow a reasonable jury
to conclude that Verizon took “action with a reasonable tendency to ‘interfere with,
restrain, or deny’ the ‘exercise or attempt to exercise’ an FMLA right” when it
investigated Williams, or when it terminated him after he came back from leave that it
had approved. Gordon, 778 F.3d at 165 (quoting 29 U.S.C. § 2615(a)(1)).
C. Williams’s Retaliation Claim Fails Because There Is Insufficient
Evidence That Verizon Terminated Williams With A Retaliatory Motive
In addition to claiming interference, Williams has also framed the basic facts of
this matter as a retaliation claim, as asserted in Count II of his complaint. (See Am.
Compl. ¶ 52 (alleging that Williams “engaged in protected activity when he requested
FMLA leave from Verizon on March 7, 2014 and March 8, 2014”); id. ¶ 53 (“Verizon
then retaliated against [Williams] for taking this leave, when they terminated him on
May 9, 2014, when Verizon accused him without any medical documentary evidence of
feigning his illness and that he lied to them during their investigations.”).) Because
Verizon has put forward a legitimate, non-discriminatory reason for its adverse action—
namely, that Williams lied during the investigation—“the question [of] whether the
22
employee actually made out a prima facie case is no longer relevant and thus disappears
and drops out of the picture,” Brady, 520 F.3d at 493 (internal quotation marks and
citations omitted), and Verizon’s arguments about Williams’s lack of a prima facie
showing are not pertinent to the analysis (see Def.’s Mem. at 18–19). Instead, the
Court begins with the analysis of Verizon’s proffered reason for Williams’s
termination, and concludes that Williams’s retaliation claim cannot proceed to trial,
because Williams has not provided sufficient evidence to support a reasonable inference
that Williams’s deceptiveness was not the real reason for his termination and that
Verizon terminated him in retaliation for the FMLA leave that he had taken. See
Walker, 798 F.3d at 1093.
1. Verizon Has Articulated A Legitimate, Non-Retaliatory Reason For
Williams’s Termination
Verizon has put forward an undoubtedly legitimate, non-retaliatory reason for its
termination of Williams’s employment: that it fired Williams “for lying about his
whereabouts and misrepresenting facts during an investigation.” (Def.’s Stmt. ¶ 68.)
Notably, Williams does not dispute that he knowingly told Verizon that he was at home
sick in bed on March 7, 2014, when in fact he was on his way to New Orleans. (See id.
¶¶ 73–74; see also Pl.’s Opp’n at 1.) Moreover, as mentioned above, Verizon’s Code of
Conduct specifically states that employees must “be honest and forthcoming at all times
during an investigation[,]” and prohibits employees from “[m]isrepresenting facts or
failing to disclose facts during an investigation[.]” (Id. ¶ 73 (quoting Verizon Code of
Conduct at 10); see also Termination Letter at 2.) Consequently, Verizon had a valid
reason for terminating Williams’s employment that had nothing to do with any alleged
retaliation for Williams’s having previously taken FMLA leave. See Thomas, 227 F.
23
Supp. 3d at 104–08 (finding employee’s ethical violation to be a legitimate reason for
termination in a FMLA retaliation case); Ghawanmeh v. Islamic Saudi Acad., 857 F.
Supp. 2d 22, 40–41 (D.D.C. 2012) (finding, among others, that employee’s violation of
employer’s regulations and dishonesty about health status were legitimate reasons for
termination in a FMLA retaliation case); see also Williams v. Chertoff, 495 F. Supp. 2d
17, 35 (D.D.C. 2007) (noting, in the discrimination context, that “[t]he most common
legitimate reason on which an employer might rely in disciplining an employee would
be that the employee had violated an employment regulation or policy”).
2. Williams Has Not Shown That Verizon’s Reasons for Terminating Him
Were Pretextual
Because Verizon has articulated a valid non-retaliatory reason for terminating
Williams, the central inquiry is whether Williams’s evidence “creates a material dispute
on the ultimate issue of retaliation ‘either directly by showing that a discriminatory
reason more likely motivated [Verizon] or indirectly by showing that [Verizon’s]
proffered explanation is unworthy of credence.’” Jones v. Bernanke, 557 F.3d 670, 678
(D.C. Cir. 2009) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
716, (1983)); see Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir.
2008) (noting that the crucial question at this step is whether the plaintiff has produced
sufficient evidence “that the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated against the plaintiff on a
prohibited basis”). Williams primarily relies on the latter tack by suggesting that
Verizon’s reason for his termination was not the real reason, but he makes little
headway in this regard.
24
To begin with, it is difficult for Williams to show that Verizon’s proffered
reason for terminating him is “unworthy of credence[,]” Jones, 557 F.3d at 678 (internal
quotation marks and citation omitted), when he admits to much of the underlying
behavior on which Verizon based his termination—he does not dispute that he was
traveling to New Orleans when he requested FMLA leave for March 7 and 8, 2014 (see
Def.’s Stmt. ¶¶ 32–36, 44, 66), nor does he maintain that he was truthful during
Verizon’s investigation of his whereabouts (see id. ¶¶ 73–74; see also Pl.’s Opp’n at 1
(accepting that “Williams lied during his investigation.”)). See Waterhouse v. District
of Columbia, 298 F.3d 989, 995 (D.C. Cir. 2002) (“Because [plaintiff] did not
contravene—and in fact admitted—many of the deficiencies the defendants cited
concerning her performance, she failed to establish that her employer’s proffered
explanation [was] unworthy of credence.” (internal quotation marks and citations
omitted)). Although Williams maintains that he was in fact ill, and thus “had an
unforeseeable FMLA valid leave request” regardless of where he was physically located
(Pl.’s Opp’n at 16), to the extent that he does not deny that he was traveling during his
requested leave and was subsequently dishonest regarding his conduct during his leave,
Williams has not cast any real doubt on the genuineness or reasonableness of Verizon’s
stated beliefs about his conduct. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180,
1183 (D.C. Cir. 1996) (stating that the issue in establishing pretext is “not the
correctness or the desirability of the reasons offered . . . [but] whether the employer
honestly believes in the reasons it offers[,]” and it is insufficient to merely “show that a
reason given for a job action is not just, or fair, or sensible” (internal quotation marks
and citations omitted)); Brady, 520 F.3d at 495 (holding that “there ordinarily is no
25
basis for permitting a jury to conclude that the employer is lying about the underlying
facts” if the belief is reasonable).
Thus, Williams appears to base his pretext argument on the contention that
Verizon “deviat[ed] from [its] usual progressive discipline policy” in terminating him,
and that, absent a retaliatory motivation, Verizon would have simply suspended him, as
it has previously done with other employees. (Pl.’s Opp’n at 16.) It is true that if
Williams can show “an unexplained inconsistency” between how Verizon treated him
versus other similarly situated Verizon employees, such an inconsistency could
potentially “justify an inference of [unlawful] motive.” Lathram v. Snow, 336 F.3d
1085, 1093 (D.C. Cir. 2003). But Williams has failed to demonstrate any such
inconsistency here.
In this regard, Williams relies solely on two affidavits from two union stewards,
Drucilla Jones and Derrick Griffin. (See Aff. of Drucilla Jones (“Jones Aff.”), Ex. C to
Pl.’s Opp’n, ECF No. 30-3; Aff. of Derrick Griffin (“Griffin Aff.”), Ex. D to Pl.’s
Opp’n, ECF No. 30-4.) Both affidavits contain bald assertions about Verizon’s so-
called progressive discipline policy, past practices with respect to other employees
involved in misconduct, and the alleged irregularity of Verizon’s treatment of Williams.
(See, e.g., Jones Aff. ¶ 12 (“Verizon had a practice of simply suspending employees for
acts worse than that attributed to [] Williams.”); Griffin Aff. ¶ 18 (“[Williams’s]
termination was a clear departure from Verizon’s progressive discipline policy.”).) But
neither provides the specificity required to give rise to an inference that the referenced
facts and circumstances actually pertain to similarly situated employees who were
treated more favorably by Verizon than Williams was treated in this case.
26
As an initial matter, neither affidavit does more than merely assert that Verizon
ordinarily employs a “progressive discipline policy,” pursuant to which it suspends
derelict employees but does not fire them. (Jones Aff. ¶ 8; Griffin Aff. ¶ 8.) In fact,
Jones’s affidavit specifically recognizes that Verizon “did not have a written policy for
suspension[,]” and no such policy or practice is contained in Verizon’s collective
bargaining agreement with the union. (Jones Aff. ¶ 8; see also Def.’s Reply at 11
(maintaining that neither Verizon’s Code of Conduct nor the collective bargaining
agreement requires progressive discipline).) Griffin’s affidavit purports to explain that
his “knowledge and familiarity” with Verizon’s progressive discipline policy comes
from “attend[ing] a three[-]day training” on the grievance and termination process that
the union conducts (Griffin Aff. ¶ 8), but does not cite any source that shows that
Verizon actually has such a policy, much less that it has taken the position that the
company will not terminate employees who lie during an investigation of potential
fraud pertaining to approved FMLA leave. In fact, Verizon’s Code of Conduct appears
to belie the claim that Verizon has a progressive discipline policy with respect to
violations of the Code, because it specifically states that termination can result from
violating company policy as set forth in the Code. (Verizon Code of Conduct at 8
(“Failure to comply with any provision of this Code or company policy is a serious
violation and may result in disciplinary action, up to and including termination of
employment[.]” (emphasis added)).) See Long, 263 F. Supp. 3d at 286 (rejecting the
argument that the employer’s given reason her termination was pretextual based on its
failure to follow an alleged “progressive discipline policy” where “the record ma[de] it
27
clear that [the employer] was not wedded to a strict” policy and the staff handbook
permitted termination without first employing other measures).
Nor do Jones’s or Griffin’s affidavits provide any competent comparator
evidence to show that Williams was actually treated differently than anyone else. See
Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)
(holding that the plaintiff must “demonstrate that all of the relevant aspects of her
employment situation were ‘nearly identical’ to those of the [comparator]” in order to
demonstrate pretext in a Title VII discrimination case). Jones’s affidavit states
generally that, “[i]n my 35 years’ experience as a union steward representing Verizon
employees, I have full and personal knowledge of employees who have been terminated
under our grievance policy and Verizon has not terminated any employee for a lie or
misrepresentation during a grievance or company hearing,” and thus, “Williams’s
“termination was a deviation from [Verizon’s] policy.” (Jones Aff. ¶ 7.) But Jones
does not provide the titles or roles of the employees she references, and she omits the
specific misrepresentations these supposedly similar employees made, as well as the
facts and information upon which her knowledge of their treatment is based. See Carter
v. Rubin, 14 F. Supp. 2d 22, 39 (D.D.C. 1998) (finding that a declaration asserting that
plaintiff was treated differently from others engaging in similar conduct was not
probative of plaintiff’s discrimination and retaliation claims because it “fail[ed] to
reference any other [employee] specifically”). Similarly, although Jones makes the
blanket statement that Verizon employees are “not terminated for . . . falsifying FMLA
leave” (Jones Aff. ¶ 9), she includes no facts regarding comparable employees who lied
about their leave, making an assessment of their similarities or dissimilarities to
28
Williams’s case impossible. See Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)
(holding that a plaintiff who relies on alleged comparators to show discrimination must
demonstrate that the comparators were “charged with offenses of comparable
seriousness” to show similarity of situation (internal quotation marks and citation
omitted)). Jones’s statement that “[i]t is my opinion that Verizon interfered or
retaliated against Williams for using FMLA leave” (Jones Aff. ¶ 13) fares no better;
such a contention is conclusory, and therefore insufficient to cast doubt on Verizon’s
stated, non-retaliatory explanation for Williams’s termination. See Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999) (noting that “[a]ccepting [] conclusory allegations
as true . . . would defeat the central purpose of the summary judgment device”);
Ransom v. Ctr. For Nonprofit Advancement, 514 F. Supp. 2d 18, 27 (D.D.C. 2007)
(finding testimony that consisted of “vague and conclusory argument without factual
support” insufficient to show pretext because the statements merely stated that the
employer’s actions were discriminatory, without citing any “actual evidence”).
The affidavit from Griffin, who accompanied Williams to his investigatory
interviews (see Griffin Aff. ¶ 15), also falls far short of providing adequate support for
its contention that Williams’s termination “was a clear departure from Verizon’s
progressive discipline policy” (id. ¶ 18). Griffin’s sworn statement says little more than
that, insofar as it contains no information about any other specific instances of
discipline by the company that could possibly form the basis of Griffin’s conclusion
that Verizon has a policy that it departed from with respect to Williams. And there is
nothing in the record that Griffin (or Jones, for that matter) is or ever was a Verizon
executive, and thereby has the power to announce that the policy of the company is that
29
Williams “should have been suspended for a period of days,” rather than terminated.
(Id. ¶ 17.) So, it is clear to this Court that, without more, the affidavits of Jones and
Griffin cannot “by [themselves] create a disputed question of material fact concerning
pretext[.]” Miles, 653 F. App’x at 9; Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir.
2016) (“Courts may grant summary judgment to a defendant where a plaintiff’s
evidence is vague or conclusory.”).
It is also notable that Verizon has gone above and beyond to highlight the
deficiency of Williams’s showing, by providing evidence that specifically rebuts any
claim that Williams faced inconsistent treatment in regard to his termination. Contrary
to Jones’s and Griffin’s vague perception that Verizon allows its employees to make
fraudulent misrepresentations without being fired, it appears that Verizon has
terminated employees who are also “in the Potomac bargaining unit” (to which
Williams belongs) for “providing false and misleading information during an
investigation in violation of the Code of Conduct.” (Def.’s Stmt. ¶ 75; see also Verizon
Termination Letters, Ex. A–F to Decl. of Miriam T. Brooks, ECF No. 28-14, at 5–16.)
And Williams’s only objection to paragraph 75 of Verizon’s statement of undisputed
material facts is the contention that “[h]is discipline was a deviation from their normal
practice per the affidavit[s] of Drucilla Jones and Derrick Griffin[.]” (Pl.’s Stmt. ¶ 75.)
As such, Williams merely maintains that the Jones and Griffin affidavits ought to be
given more weight than the facts that are reflected in these company documents.
However earnest, Williams’s own assessment of the relevant strength of the parties’
evidence is not important; what matters is whether a reasonable jury could conclude
that Williams’s termination was an anomaly because employees are never terminated
30
for lying in an investigation as he did, and based on Verizon’s exhibits and the paucity
of information in Williams’s affidavits, this Court concludes that it could not.
Notably, even assuming, arguendo, that Verizon departed from previous practice
in regard to Williams’s termination, that alone may still not be enough to show pretext.
Cf. Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982) (noting, in the
discrimination context, that even where an employer has failed to follow its own
established regulations, that alone is merely probative, and may not be sufficient to
establish a forbidden intent). Because Verizon’s written policy explicitly states that
termination may result for employees who violate its Code of Conduct (see Verizon
Code of Conduct at 8), the mere fact that Verizon could have taken a different
approach—i.e., suspended him instead of terminated him—would not be sufficient to
show pretext, and this is especially so in the absence of robust comparator evidence.
See Wilkerson v. Wackenhut Protective Servs., Inc., 813 F. Supp. 2d 61, 67 (D.D.C.
2011) (rejecting the idea that a plaintiff can “establish pretext by contending that [the
employer] could have, but did not, impose progressive discipline, especially when [the
employer’s] policy permitted swift and severe punishment for a single [violation]”
(internal citation omitted)); cf. Sharif, 841 F.3d at 206 (rejecting the claim that the
“severity of the consequence [the employee] received is evidence of pretext”).
The bottom line is this: when evaluating a retaliation claim at the summary
judgment stage, the court must “consider all the evidence, taken together,” and assess
whether it is sufficient to support a reasonable inference of retaliation. Jones, 557 F.3d
at 678. Thus, even for plaintiffs who create some genuine issue of material fact as to
pretext, not every one “will always be deemed to have presented enough evidence to
31
survive summary judgment.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir.
1998) (en banc). So it is here. Even when the evidence is viewed in the light most
favorable to Williams, see Tolan, 134 S. Ct. at 1866, “the record conclusively reveal[s]
some other, nondiscriminatory reason for the employer’s decision,” and Williams has,
at best, “created only a weak issue of fact as to whether the employer’s reason was
untrue[,]” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). In
other words, Williams has not provided evidence that would be sufficient for a
reasonable jury to conclude that Verizon’s stated reasons for firing him was mere
pretext; therefore, his retaliation claim fails as a matter of law. See, e.g., Thomas, 227
F. Supp. 3d at 111; Long, 263 F. Supp. 3d at 288.
IV. CONCLUSION
For the reasons explained above, this Court finds that Williams has not adduced
sufficient evidence to support his claim that Verizon interfered with, or otherwise
attempted to restrain, any exercise of his rights protected by the FMLA, and the Court
also concludes that no reasonable jury could find based on the instant record evidence
that Verizon terminated Williams with a retaliatory motive. Therefore, as set forth in
the accompanying order, Verizon’s motion for summary judgment will be GRANTED,
and judgment will be entered in Defendant’s favor on all claims.
DATE: March 31, 2018 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
32