Duru v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
DONATUS U. DURU, )
)
Plaintiff, )
v. )
)
DISTRICT OF COLUMBIA, ) Civil Action No. 15-664 (EGS)
)
)
Defendant. )
)

MEMORANDUM OPINION

I. Introduction

Plaintiff Donatus Duru (“Mr. Duru”) brings suit against

Defendant District of Columbia (“District” or “D.C.”) after he

was terminated from his position as a Youth Development

Representative (“YDR”) at New Beginnings Youth Development

Center. Mr. Duru alleges that his national origin (Nigerian)

motivated the District’s decision to terminate him, in violation

of Title VII of the Civil Rights Act of 1964 (“Title VII”), as

amended, 42 U.S.C. §2000(e), et seq.; the District of Columbia

Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01, et seq.; and

the Civil Rights Act of 1991, 42 U.S.C. § 1981(a) (“Section

1981”). He requests compensatory damages and expenses, in

addition to other equitable relief including ordering the

District to institute anti-discrimination policies and

procedures and Equal Employment Opportunity Commission (“EEOC”)

1
supervisory training. Pending before the Court is the District’s

motion for summary judgment. See Def.’s Mot., ECF No. 25. The

Court has carefully considered the motion, the response and

reply thereto, the applicable law, and the entire record herein.

The Court finds that there is no genuine dispute as to any

material fact, and thus, for the reasons stated below, the

District’s motion for summary judgment is GRANTED.

II. Background

Except where indicated, the following facts are not in

dispute. Mr. Duru was born in Nigeria. Pl.’s Opp’n, ECF No. 39

at 1. In 1983, he moved to the United States and became an

American citizen in 1992. Pl.’s Dep., ECF No. 39-4 at 23:20-

24:22. That same year, he began working for the D.C. Department

of Youth Rehabilitation Services (“DYRS”) as a YDR. He served as

a YDR for almost thirty years until he was terminated in 2012.

Id. at 25:21-26:4.

The DYRS is a D.C. agency that is “responsible for the

supervision, custody, and care of [detained] young people

charged with a delinquent act in the District . . . .” DYRS

Executive Summ., ECF No. 25-1. YDRs are responsible for the

“rehabilitation, direct supervision and active positive

engagement, and safety and security of youth in the custody of

DYRS.” Position Description, ECF No. 25-1 at Ex. 2. A YDR is

expected to adhere to the “eyes-on-supervision policy,” which

2
requires that a YDR “maintains ongoing visual contact with all

youth under supervision.” Policy #8-9.3, ECF No. 25-1 at Ex. 5.

An YDR can only be removed for cause. Such causes include

neglect of duty, insubordination, incompetence, misfeasance, and

other employment-related reasons for which adverse action is not

arbitrary or capricious. D.C. Personnel Regulations §§ 1603.2,

1603.3, ECF No. 25-1 at Ex. 3. In determining which, if any,

adverse action is warranted for a specific policy violation,

DYRS utilizes “progressive discipline,” in which imposed

punishments become harsher as the severity of the infraction

and/or number of offenses increases. Table of Appropriate

Penalties, ECF No. 25-1 at Ex. 4. In “administering progressive

disciplinary action,” “only the past three years’ [of] prior

discipline can be used against an employee. . . .” Test. of HR

Specialist Ohler (“Ohler Test.”), ECF No. 39-7 at 142: 9-14.

A. Mr. Duru’s Disciplinary History

While Mr. Duru contests the veracity of each documented

violation and whether the discipline imposed for each violation

was appropriate, it is uncontested that Mr. Duru was disciplined

for five separate incidents in the three years prior to his

termination. Pl.’s Opp’n, ECF No. 39 at 12-13 (not denying his

discipline record despite denying other statements within the

same paragraph); see generally id. at 29-30 (explaining previous

violations); Pl.’s Dep., ECF No. 39-4 (explaining each

3
violation). First, in September 2009, Mr. Duru received a

counseling notice for failing to report to his work post in a

timely manner. Pl.’s Opp’n, ECF No. 39 at 29. In his deposition,

Mr. Duru could not recall this incident. Pl.’s Dep., ECF No. 39-

4 at 98:17-100:8. Second, in October 2009, Mr. Duru received a

three day suspension for sleeping on the job. Pl.’s Opp’n., ECF

No. 39 at 29. Mr. Duru contends that this charge was fabricated.

Id. Third, in March 2010, Mr. Duru received a nine-day

suspension, for unauthorized absence without official leave. Id.

Mr. Duru contends that this charge was not warranted because he

had contracted malaria while visiting Nigeria and was banned

from traveling back to the United States. 1 Id. at 29-30. Fourth,

on December 13, 2011, Mr. Duru received a fifteen-day suspension

for violating DYRS’ “eyes-on-supervision” policy. Pl.’s Opp’n.,

ECF No. 39 at 12-13 (not denying his discipline record despite

denying other statements within the same paragraph). Finally, on

December 15, 2011, Mr. Duru was terminated for violating DYRS’

“eyes-on-supervision” policy again. Id. The final two

disciplinary events, occurring on December 13, 2011 and December

15, 2011, are explained more fully below. Mr. Duru’s termination

1 As a result of the nine-day suspension, Mr. Duru filed a
complaint with the EEOC for national origin discrimination.
Pl.’s Dep., ECF No. 39-4 at 69:19-71:21. The EEOC ultimately
found that Mr. Duru had been subject to unfair treatment, but
that DYRS had not engaged in discrimination. Id.
4
became effective on June 26, 2012. See Resp. to Proposed

Termination, ECF No. 25-1 at Ex. 16; Hearing Findings, ECF No.

25-1 at Ex. 15.

B. The December 13, 2011 Incident

On December 13, 2011, a “serious incident” occurred while

Mr. Duru and another YDR, Ms. Jacqueline Brown, were on duty.

Pl.’s Opp’n., ECF No. 39 at 8, ¶ 11. Specifically, four DYRS

youth residents entered the bathroom at the same time and

climbed into the ceiling, contrary to DYRS policy. Id. ¶ 12. As

a result, several residents required medical attention and the

ceiling was damaged. Id. at 9, ¶¶ 17, 18. DYRS conducted an

investigation and prepared an incident report. See Dec. 13

Incident Report, ECF. No 25-1 at Ex. 7. Both Ms. Brown and Mr.

Duru were charged with violating DYRS’ “eyes-on-supervision”

policy and with neglect of duty, insubordination, and

incompetence. Notice of Suspension, ECF No. 25-1 at Ex.6; Notice

to YDR Brown, ECF No. 25-1 at Ex. 9. Mr. Duru received a

fifteen-day suspension and Ms. Brown received an official

reprimand. Id.

C. The December 15, 2011 Incident

Two days later, on December 15, 2011, another “major

incident” occurred while Ms. Brown and Mr. Duru were again on

duty, along with a third YDR, Mr. Jeffrey Starkey. Pl.’s Opp’n.,

ECF No. 39 at 10, ¶ 21. Adopting Mr. Duru’s version of events,

5
two youth residents assaulted a resident. Pl.’s Opp’n, ECF No.

39 at 2-4. While Mr. Duru was breaking up that fight, two

different residents used a dissembled broom to assault another

resident. Id. at 3. At least one resident was taken to the

hospital to treat his injuries. Id.; OEA Decision, ECF No. 39-8.

DYRS again conducted an investigation and prepared an incident

report with witness statements. Dec. 15 Incident Report, ECF

Nos. 25-1 at Exs. 12, 13.

Both Ms. Brown and Mr. Duru were again charged with

violating DYRS’ “eyes-on-supervision policy” and with neglect of

duty, insubordination, incompetence, and misfeasance. Notice of

Proposed Removal, ECF No. 25-1 at Ex. 11; Notice on Suspension,

ECF No. 25-1 at Ex. 14. Mr. Duru, but not Ms. Brown, was also

charged with negatively affecting the integrity of the

government. Id. Ms. Brown and Mr. Duru were again disciplined-

Mr. Duru was fired and Ms. Brown was suspended for nine days.

Id. YDR Starkey was not disciplined for the incident. Pl.’s

Opp’n, ECF No. 39 at 34. In an affidavit, YDR Starkey states

that he had been on an approved break at the time of the

incident, while Mr. Duru argues that he had not been approved to

leave his station. Starkey Aff., ECF No. 25-1 at Ex. 18; Pl.’s

Opp’n, ECF No. 39 at 10-11, ¶ 23.

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 D. Mr. Duru’s Termination

Mr. Duru was fired after the December 15, 2011 incident.

Notice of Proposed Removal, ECF No. 25-1 at Ex. 11. DYRS decided

to fire Mr. Duru after reviewing his disciplinary history and

conducting investigations of the two “serious” December 2011

incidents. Ohler Test., ECF No. 39-7 at 144:20-145:13; Hearing

Officer Findings, ECF No. 25-1 at Ex. 15 (“With each

transgression, his sanctions increase and his suitability to

remain in the position of a [YDR] is further called into

question. The basis for this proposed removal has been met.”).

Mr. Duru’s removal was eventually overturned when Office of

Employee Appeals (“OEA”) Judge Dohnji found that DYRS had not

met its burden of proof. OEA Decision, ECF No. 39-8 at 14.

Specifically, DYRS did not present sufficient evidence that Mr.

Duru violated the “eyes-on-supervision” policy on December 15,

2011. Id. OEA Judge Dohnji found that Mr. Duru had not violated

the policy because he had been resolving the first assault when

the second assault occurred. Id. Additionally, DYRS failed to

prove that Mr. Duru was at fault for not detecting the

dissembled broom used in the second assault. Id. at 13-14. On

July 16, 2014, Mr. Duru was reinstated and reimbursed for back-

pay, benefits lost, and attorney’s fees. Id. at 14.

7
 Mr. Duru previously filed a charge of national origin

discrimination with the EEOC, which was cross-filed with the

D.C. Office of Human Rights. Pl. Opp’n, ECF No. 39 at 15, ¶ 28.

III. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should 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); Waterhouse v. District of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002). The moving party must identify “those portions

of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (internal quotation marks omitted). To defeat summary

judgment, the nonmoving party must demonstrate that there is a

genuine issue of material fact. Id. at 324. A material fact is

one that is capable of affecting the outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A genuine dispute is one where “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Id. Further, in the summary judgment analysis “[t]he

evidence of the non-movant is to be believed, and all

8
justifiable inferences are to be drawn in his favor.” Id. at

255.

IV. Analysis

To establish a viable national origin claim under Title

VII, the DCHRA, and Section 1981, 2 Mr. Duru must provide

sufficient evidence to establish that the District’s non-

discriminatory justification for firing him was pretext for its

real, discriminatory reason. 3 Under all three statutes, it is

unlawful for an employer to “discharge . . . or otherwise to

discriminate against any individual with respect to his . . .

employment, because of such individual's race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000(e-2)(a)(1). There are

“two essential elements of a discrimination claim . . . (i) the

plaintiff suffered an adverse employment action [and] (ii)

2 It may be that Mr. Duru’s claim is not cognizable under Section
1981. See Kidane v. N.W. Airlines, Inc., 41 F. Supp. 2d 12, 16-
17 (D.D.C. 1999)(“[A] plaintiff cannot base proof of
discrimination under § 1981 solely on the place or nation of his
origin.”). Because the Court finds that no reasonable jury could
find that the District was motivated by Mr. Duru’s national
origin when it fired him and because neither party raises this
argument, the Court will not address this issue.
3 All three of Mr. Duru’s claims under Title VII, Section 1981,

and DCHRA are analyzed using the same framework and therefore
will be discussed concurrently. See Lemmons v. Georgetown Univ.
Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006) (“Where, as here,
the plaintiff has proffered no direct evidence of intentional
discrimination, race discrimination claims under both the DCHRA
and Section 1981 are evaluated using the same framework as
claims arising under Title VII . . . .”)(citing Mungin v. Katten
Muchin & Zavis, 116 F.3d 1549, 1553 (D.C. Cir. 1997)).

9
because of the plaintiff's race, color, religion, sex, national

origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d

1191, 1196 (D.C. Cir. 2008).

If the plaintiff succeeds in proving the prima facie case

by a preponderance of the evidence, “the burden shifts to the

defendant to articulate some legitimate, nondiscriminatory

reason for the [adverse action].” Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981) (internal citations and

quotations omitted). The employer’s burden is therefore

satisfied if it “simply ‘explains what [it] has done’ or

‘produc[es] evidence of legitimate nondiscriminatory reasons.’”

Id. at 256 (quoting Bd. of Trs. of Keene State Coll. v. Sweeney,

439 U.S. 24, 25 n. 2 (1978)). The defendant “need not persuade

the court that it was actually motivated by the proffered

reasons.” Id. at 254. Moreover, “it is important to note” that

although the “burden of production [has shifted] to the

defendant, the ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal

citations and quotations omitted)(emphasis added).

If the defendant presents a “legitimate, nondiscriminatory”

reason for the adverse action, the burden shifts again. “[T]he

plaintiff must then . . . prove by a preponderance of the

10
evidence that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for

discrimination.” Burdine, 450 U.S. at 253. The plaintiff may be

able to prove pretext, for example, “by showing that the

employer's proffered explanation is unworthy of credence.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000) (quoting Burdine, 450 U.S. at 256)). However, this is not

altogether sufficient: “a reason cannot be proved to be ‘a

pretext for discrimination’ unless it is shown both that the

reason was false, and that discrimination was the real reason.”

Hicks, 509 U.S. at 515 (emphasis in original).

While the prima face case “is no longer relevant” once “the

defendant has succeeded in carrying its burden of production,”

Hicks, 509 U.S. at 510, it is undisputed that Mr. Duru has

stated a prima facie case. See Def.’s Mot., ECF No. 25; Pl.’s

Opp’n, ECF No. 39 at 24-25. Thus, the only question before the

Court is the “central issue” of a discrimination case: whether

the employee “produced sufficient evidence for a reasonable jury

to find that the employer's asserted non-discriminatory reason

was not the actual reason and that the employer intentionally

discriminated against [the employee] based on his [national

origin].” Brady v. Office of Sargeant at Arms, 520 F.3d 490, 495

(D.C. Cir. 2008).

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 A. The District Proffered a Legitimate, Non-Discriminatory
Justification for its Decision to Terminate Mr. Duru
The District asserts that it terminated Mr. Duru for

legitimate, non-discriminatory reasons. First, it contends that

the “serious incidents” involving Mr. Duru in December 2011 and

his disciplinary history warranted termination. Def.’s Stmt. of

Material Facts, ECF No. 25 at 6, ¶ 24. Mr. Duru’s supervisor,

Superintendent Baynes, testified at the OEA hearing that the

decision was ultimately influenced by “all the personnel

actions” and “[the] lack of eyes-on supervision [on December 13,

2011 and December 15, 2011] . . . which could have also caused

great harm to the youth.” Baynes Test., ECF No. 39-6 at 50:13-

22. The combination caused Superintendent Baynes to “have no

confidence that [Mr. Duru] can provide the safety and security

that we require within DYRS from our YDRs.” Id. at 54:20-55:2.

It is clearly legitimate for an employer to terminate an

employee after a policy violation. See Burley v. Nat’l Passenger

Rail Corp., 801 F.3d 290, 297-98 (D.C. Cir. 2015)(finding it

legitimate that an employee was fired for violating a safety

policy); Brady v. Office Sergeant at Arms, 520 F.3d 490, 494-95

(D.C. Cir. 2008) (finding it legitimate that an employee was

fired for violating a sexual harassment policy); Baloch v.

Kempthorne, 550 F.3d 1191, 1200 (D.C. Cir. 2008) (finding it

legitimate that an employer took adverse action because the

“disciplinary measures . . . occurred only after various
12
infractions” and therefore “good institutional administration”

justified discipline); Childs-Pierce v. Util. Workers Union of

Am., 383 F. Supp. 2d 60, 72-73 (D.D.C. 2005) (finding it

legitimate that an employee was disciplined for violating one

policy and later terminated for not complying with another).

However, Mr. Duru argues that the District’s proffered

explanation is not supported by the evidence. Pl.’s Opp’n, ECF

No. 39 at 25-32 (primarily citing his own deposition, ECF No.

39-4; the videotape of the incident, which is not included as an

exhibit; the OEA decision overturning his termination, ECF No.

39-8; and the transcript from the OEA hearing, ECF Nos. 39-6, 7,

10). Mr. Duru disagrees with the District’s conclusion that he

violated DYRS policy. Specifically, he argues that he did not

violate the eyes-on-supervision policy on December 15, 2011.

Pl.’s Opp’n, ECF No. 39 at 30-31. Instead, he argues that he was

protecting DYRS residents involved in the first assault. See,

e.g., Pl.’s Dep., ECF No. 39-4 at 185:1-186:6; Pl.’s Opp’n, ECF

No. 39 at 30. He also argues that he did not conduct a defective

sweep of the unit; therefore, it was not his fault that a

resident was able to access the broom used to assault another

resident. Pl.’s Opp’n, ECF No. 39 at 27-28. He ultimately

concludes that the District’s description of the two December

2011 incidents was “exaggerated,” that his disciplinary history

was the result of violations that did not actually occur, and

13
that the progressive discipline imposed was inappropriate under

the circumstances. Id. at 30.

The District’s decision may be legitimate and non-

discriminatory even if it was based on conclusions that

ultimately prove to be factually inaccurate, so long as it

“honestly and reasonably believed that the underlying . . .

incident occurred”. Brady, 520 F.3d at 496 (emphasis in

original). Because the District articulated a non-discriminatory

explanation for its action, “the issue is not ‘the correctness

or desirability of [the] reasons offered ... [but] whether the

employer honestly believes in the reasons it offers.’” See

Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d

1180, 1183 (D.C. Cir. 1996)(quoting McCoy v. WGN Cont’l Broad.

Co., 957 F.2d 368, 373 (7th Cir. 1992)). Moreover, the Court

should not “second-guess” the employer’s explanation for its

actions “absent [a] demonstratively discriminatory motive.” Id.

at 1183 (quoting Milton v. Weinberger, 696 F.2d 94, 100 (D.C.

Cir. 1982) and citing Pignato v. Am. Trans. Air, Inc., 14 F.3d

342, 349 (7th Cir. 1994) (“It is not enough for the plaintiff to

show that a reason given for a job action is not just, or fair,

or sensible. He must show that the explanation given is a phony

reason.”)).

Mr. Duru has not raised an issue of material fact as to

whether the District honestly believed his termination was

14
warranted. The District’s decision to terminate Mr. Duru was

reached after the undisputedly “serious incident” that occurred

on December 15, 2011, his fifth infraction in three years. See,

e.g., Baynes Test., ECF No. 39-6 at 43:4-21. While Mr. Duru

argues that some of his infractions were not warranted, he has

not produced any evidence to question that there were five

infractions in his personnel record. Pl.’s Opp’n., ECF No. 39 at

12-13, ¶ 25 (not denying his discipline record despite denying

other statements within the same paragraph). Moreover, he

correcting admits that this Court is not the forum for

relitigating the merits of his prior disciplinary actions. Pl.’s

Opp’n, ECF No. 39 at 29-30. It is therefore reasonable that a

DYRS official reviewing Mr. Duru’s file would see his extensive

disciplinary history and honestly rely on that information in

concluding to terminate him.

As in Burley, “the fact that [the District’s] conclusion

was not the only possible conclusion does not cast doubt on the

sincerity of its belief.” 33 F. Supp. 3d 61, 70 (D.D.C. 2014)

(emphasis in original). The District’s termination decision was

not made hastily. It was made only after DYRS officials

conducted two investigations of the December 2011 incidents,

reviewed the written statements of all witnesses, watched the

security videotapes from the custodial area, and examined Mr.

Duru’s personnel file. Baynes Test., ECF No. 39-6 at 30:22-31:3;

15
43:7-21; see Incident Reports, ECF No. 25-1 at Exs. 7, 12, 13.

Because this course of action involved the “steps one would

expect of an investigator who sincerely sought to determine what

actually happened,” it is easy to conclude that the District

honestly believed that Mr. Duru was responsible for the December

2011 incidents and had violated DYRS policy five times in three

years. Burley, 801 F.3d at 299.

Even if Mr. Duru is correct that he did not violate DYRS

policy and that his disciplinary history was unwarranted, he

must still provide evidence that his national origin motivated

DYRS’ decision to terminate him; the law “protects against

discriminatory decisions, not wrong ones.” Hairsine v. James,

517 F. Supp. 2d 301, 308–09 (D.D.C. 2007); see Burley, 801 F.3d.

at 298 (“[Plaintiff’s] analysis of the record falls short of

identifying grounds on which a factfinder reasonably could

conclude that [the employer’s] stated rationale for disciplining

him was a pretext for . . . discrimination.”). Fully crediting

Mr. Duru’s only evidence of the District’s discriminatory

motivation—his own deposition testimony—he has not raised a

disputed issue of fact as to whether he was fired as a result of

his national origin.

16
 B. Mr. Duru Failed to Establish that the District’s
Legitimate Reason for Terminating Him was Mere Pretext
for National Origin Discrimination
The Court must determine, viewing the evidence in the light

most favorable to Mr. Duru, whether a reasonable jury could

believe that the District’s proffered reason was not genuine,

but simply pretext for discrimination. Mr. Duru makes two

arguments. First, he reasserts that he never violated DYRS

policy, contending that the District “created an entire scenario

to defend against its discrimination . . . .” Pl.’s Opp’n, ECF

No. 39 at 28. Second, Mr. Duru claims the District treated him

more harshly than it did similarly situated, American-born YDRs.

Id. at 34-39. Neither argument is availing.

1. Mr. Duru Failed to Establish that the District Did
Not Honestly Believe that His Termination Was
Warranted

Because the District Court may not “second-guess an

employer's personnel decision absent [a] demonstrably

discriminatory motive,” the Court must determine whether a jury

could believe that DYRS’ justification was disingenuous or

dishonest. Fischbach, 86 F.3d at 1183. To that end, the Court

may infer that the defendant had a discriminatory motive if “the

employer is making up or lying about the underlying facts that

formed the predicate for the employment decision.” Brady, 520

F.3d at 495; see also Burley, 33 F. Supp. 3d at 69 (concluding

that “no reasonable jury could infer [defendant] is lying about

17
its reasons for disciplining [the plaintiff]”). Whether the

District’s decision was incorrect is therefore “relevant” if its

error was “too obvious to be unintentional.” Fischbach, 86 F.3d

at 1183.

In Mr. Duru’s case, there is no basis in the record to

suggest that DYRS fabricated the facts surrounding his

termination, nor does the record establish that any mistake made

was so obvious as to be intentional. To the contrary, the record

establishes that DYRS took the incidents seriously and conducted

an investigation before terminating Mr. Duru. See, e.g.,

Incident Reports, ECF No. 25-1 at Exs. 7, 12, 13. Mr. Duru does

not criticize those investigations as flawed or unfair. See

Pl.’s Opp’n, ECF No. 39; compare with Mastro v. Potomac Electric

Power Co., 447 F.3d 843, 855 (D.C. Cir. 2006) (concluding that a

jury could infer discriminatory pretext when the investigation

leading to the employee’s termination was “not just flawed but

inexplicably unfair”).

There is no basis in the record to find that the District

“created the entire scenario,” as Mr. Duru claims. Pl.’s Opp’n,

ECF No. 39 at 28. Contrary to this conclusory allegation, it is

undisputed that Mr. Duru was on duty when youth residents in his

care were severely injured. Id. at 8, ¶ 11, 10, ¶ 21. Moreover,

he ultimately admits that he should have been disciplined for

the December 2011 incidents—he begrudges that he was fired while
18
other YDRs were not: “all the three of us [YDRs] that work in

that unit [were] supposed to be disciplined [for the December

15, 2011 incident].” Pl.’s Dep., ECF No. 39-4 at 181:21-182:3.

While OEA Judge Dohnji reversed the District’s decision to

terminate Mr. Duru, she never suggested that the District

fabricated the charges against him or was obviously mistaken

that the events occurred. See OEA Decision, ECF No. 39-8.

Instead, Judge Dohnji found that the District had not met its

statutory burden to prove that Mr. Duru’s actions warranted

termination. See id. at 10-13. Ultimately, because the

District’s belief at the time was “reasonable in light of the

evidence,” there is “no basis for permitting a jury to conclude

that the employer is lying . . . .” Brady, 520 F.3d at 495.

2. Mr. Duru Failed to Establish that the District
Favored Similarly Situated, American-born Employees

Mr. Duru argues that the District disciplined him more

harshly than it did similarly situated, American-born employees

who committed comparable infractions. He concludes that this

disparate treatment reveals a discriminatory motive. Pl.’s

Opp’n, ECF No. 39 at 34-39. A plaintiff can establish “pretext

masking a discriminatory motive by presenting ‘evidence

suggesting that the employer treated other employees of a

different race [or national origin] . . . more favorably in the

same factual circumstances.’” Burley, 801 F.3d at 301

19
(quoting Brady, 520 F.3d at 495). In order to reach this

conclusion, the Court must first determine, based on evidence

substantiated by the record, that the plaintiff and an asserted

comparator are “similarly situated.” Burton v. District of

Columbia, 153 F. Supp. 3d 13, 67 (D.D.C. 2015). A plaintiff and

a comparator may be similarly situated if they are “charged with

offenses of comparable seriousness” and their “employment

situation[s] [are] nearly identical.” Burley, 801 F.3d at 301

(citations omitted). “Factors that bear on whether someone is an

appropriate comparator include the similarity of the plaintiff's

and the putative comparator's jobs and job duties, whether they

were disciplined by the same supervisor, and, in cases involving

discipline, the similarity of their offenses.” Id. “Whether two

employees are similarly situated ordinarily presents a question

of fact for the jury,” but the court may find that employees are

not similarly situated as a matter of law if a reasonable jury

would be unable to reach that conclusion. George v. Leavitt, 407

F.3d 405, 414–15 (D.C. Cir. 2005)(citations omitted).

Mr. Duru argues that the District engaged in national

origin discrimination because he was treated more harshly than

two similarly situated, American-born YDRs: Ms. Brown and Mr.

Starkey. Pl.’s Opp’n, ECF No. 39 at 34-39. The Court only

evaluates whether Ms. Brown is a proper comparator because Mr.

Duru puts forward no evidence regarding Mr. Starkey’s employment

20
history or disciplinary record. See generally Pl.’s Opp’n, ECF

No. 39. Therefore, the Court cannot assess whether Mr. Duru and

Mr. Starkey are similarly situated.

Mr. Duru argues that the District discriminated against him

because: (1) Ms. Brown received lesser penalties for the same

conduct; and (2) DYRS did not record all of her alleged past

disciplinary infractions. Id. The Court cannot infer that the

District favored American-born Ms. Brown because Mr. Duru has

not raised an issue of material fact such that a reasonable jury

could find that they were similarly situated. Indeed, it is

undisputed that Ms. Brown and Mr. Duru had the same job and same

responsibilities. Id. at 30-39. In fact, Ms. Brown was on duty

with Mr. Duru and was jointly responsible for the December 13,

2011 and December 15, 2011 incidents. Id. at 8, ¶ 11 and 10, ¶

21. It is also true that Ms. Brown received less severe

discipline than Mr. Duru for those two incidents: a formal

reprimand for the December 13, 2011 incident and a nine-day

suspension for December 15, 2011 incident. Id. at 34. However,

the Court finds that Ms. Brown and Mr. Duru are not similarly

situated as a matter of law because Mr. Duru has not established

that their “employment situations” were “nearly identical.”

Burley, 801 F.3d at 301.

Ms. Brown and Mr. Duru had different disciplinary

histories, which constitutes “differentiating or mitigating

21
circumstances that would distinguish their conduct or the

employer's treatment of them.” Ey v. Office of Chief

Administrative Officer of U.S. House of Representatives, 967 F.

Supp. 2d 337, 345 (D.D.C. 2013)(quotations and citations

omitted)). Indeed, a disciplinary history is a “relevant factor”

in determining whether employees are similarly situated. Childs-

Pierce v. Util. Workers Union of America, 383 F. Supp. 2d 60, 75

(D.D.C. 2005) (citations omitted); see also Kidane v. N.W.

Airlines, Inc., 41 F. Supp. 2d 12, 17-18 n. 8 (D.D.C. 1999). In

Childs-Pierce, the plaintiff was not similarly situated to other

employees because she “possessed a record of misconduct” while

the comparator employees did not. 383 F. Supp. 2d at 74. So here

too. Whereas Mr. Duru had a total of five infractions over three

years, Ms. Brown only had two infractions over the same three

years. See Ohler Test., ECF No. 39-7 at 161:16-162:13; see also

Def.’s Answers to Interrog., ECF No. 39-41 at 9 (“The District

of Columbia employs a progressive discipline scheme. [Ms.] Brown

did not have a disciplinary history that would warrant removal,

in contrast to Plaintiff’s disciplinary history.”). For this

reason, Ms. Brown and Mr. Duru are not similarly situated and

their respective treatment does not raise an inference of

intentional discrimination.

Just as in Childs-Pierce, the District had a “legitimate

reason” to doubt Mr. Duru’s fitness as an YDR. 383 F. Supp. 2d

22
at 74. It is clear from the record that their respective

disciplinary histories caused the District to fire Mr. Duru and

merely suspend Ms. Brown. For example, when asked in the OEA

proceeding why Ms. Brown was suspended but Mr. Duru was

terminated, Ms. Ohler testified that “Mr. Duru had more

disciplinary actions in the prior three years than Ms. Brown

had.” Ohler Test., ECF No. 39-7 at 161:6-9. Had Ms. Brown’s

discipline history been similar to Mr. Duru’s, she also would

have been terminated. Id. at 162:5-19.

Mr. Duru attempts to refute this explanation with his

second argument: Ms. Brown was unfairly favored because she had

two infractions that the District did not record. By recording

his conduct but not recording her “prior egregious conduct,” Mr.

Duru argues that Ms. Brown is a proper comparator and the

District engaged in national origin discrimination by favoring

her. Id. at 38. If Ms. Brown’s true violations had been

recorded, “the number of disciplinary actions in her personnel

folder would be equal to Mr. Duru’s,” warranting identical

treatment. Pl.’s Opp’n, ECF No. 39 at 37-38.

The first of two allegedly unrecorded infractions occurred

in “November or December 2010” 4 when “some residents blocked the

4 Mr. Duru alleges this unrecorded incident happened in “November
or December 2010” on pages 14 and 37 of his opposition
memorandum and “November/December 2009” on page 36. Pl.’s Opp’n,
ECF No. 39. While the date does not affect the Court’s analysis,
23
bathroom door with chairs and climbed through the ceiling to

escape.” Id. at 37. According to Mr. Duru, Ms. Brown was “not

reprimanded for this incident at all, in direct conflict with

DYRS’ progressive discipline structure.” Id. However, Mr. Duru

offers no evidence other than his own testimony to demonstrate

that this unrecorded incident occurred. Turner v. Shinseki, 824

F. Supp. 2d 99, 118 (D.D.C. 2011) (“When considering a summary

judgment motion the Court need not rely on any conclusory

allegations unsupported by factual evidence.”)(quotations and

citations omitted). Mr. Duru also fails to provide any evidence

that DYRS knew about Ms. Brown’s infraction and chose not to

discipline her. See Isse v. Am. Univ., 540 F. Supp. 2d 9, 33

(D.D.C. 2008) (“Of course, Plaintiff cannot claim that

management disparately disciplined other [employees] unless he

shows that management was aware of those [employees’] alleged

infractions.”).

At various points in his brief, Mr. Duru supports his

contention that an unrecorded violation occurred in November or

December 2010 by citing to the Defendant’s Responses to the

Plaintiff’s Request for Admissions (“RFA”), ECF No. 39-10 ¶¶ 6

and 8, and to his own deposition, ECF No. 39-4. See Pl.’s Opp’n,

ECF No. 39 at 13-14, 34-39. However, none of the cited record

it will that assume that the first allegedly unrecorded incident
occurred in November or December 2010.
24
supports the stated proposition. Specifically, in the cited RFA,

the District specifically denies that “[Ms.] Brown was working

on a shift . . . in November and/or December 2010 [when] some

residents blocked the door with chairs (or other items) and

climbed through the ceiling.” ECF No. 39-10 ¶¶ 5, 6. While the

District admits that Ms. Brown “was not disciplined for the

incident . . . in Admission No. 6,” the District clearly denied

that the event listed in “Admission No. 6” had occurred. Id. ¶

8. Thus, the District merely admitted that Ms. Brown was not

disciplined for an event that it denied happened in the first

place. Id. This clearly does not support Mr. Duru’s allegation

of the unrecorded violation.

Furthermore, although he cites his deposition, Mr. Duru did

not testify about the alleged unrecorded incident whatsoever.

See Pl.’s Dep., ECF No. 39-4. Instead, he corroborated the

District when he stated that Ms. Brown had only one “prior

incident” before December 13, 2011—the alleged December 12, 2011

incident discussed below. Id. at 142:5-7. When asked if Ms.

Brown had any other infractions, Mr. Duru said he “had no idea.”

Id. at 143:21-144:3. His testimony therefore contradicts his own

allegations. As in Burley, “despite the opportunity . . . to

develop the point” by, for example, deposing Ms. Brown, “the

record is devoid of even a circumstantial basis” from which the

25
Court could infer that this unrecorded event happened and that

the District knew but chose not to act. 301 F.3d at 299.

The second allegedly unrecorded violation occurred on

December 12, 2011, the day before the December 13, 2011 incident

involving Ms. Brown and Mr. Duru. According to Mr. Duru, Ms.

Brown was on duty when residents “locked her out of the bathroom

and climbed through the ceiling.” 5 Pl.’s Opp’n, ECF No. 39 at 14.

Mr. Duru states that he learned about this alleged infraction

because he “read the log book . . . .” Pl.’s Dep., ECF No. 39-4

at 142:5-144:3. Beyond his own testimony, however, Mr. Duru does

not offer any support in the record that this second unrecorded

incident occurred. See Fields v. Office of Johnson, 520 F. Supp.

2d 101, 105 (D.D.C. 2007) (“Self-serving testimony does not

create genuine issues of material fact, especially where that

very testimony suggests that corroborating evidence should be

readily available.”). Mr. Duru cites to the “log book,” from

which he learned about the incident. 6 Pl.’s Opp’n, ECF No. 39 at

14. However, the Court reviewed the entire record and was unable

to locate a log book or testimony that corroborates Mr. Duru’s

5
In the OEA hearing, however, Mr. Duru alleges that the youths
got “into the ceiling by stacking tables in the main dorm area.”
Ohler Test., ECF No. 39-13 at 194:7-13.
6 Mr. Duru’s exhibit list, ECF No. 40, identifies the log book as

exhibit 8. However, there is no exhibit 8 on the docket. In his
opposition, he identifies the log book as exhibit 7. See Pl.’s
Opp’n, ECF No. 29 at 14. Exhibit 7 is listed as video
surveillance, which also does not exist.
26
account. Moreover, at the OEA hearing Superintendent Baynes

testified that while DYRS maintains a log book, he did not

recall seeing any entry regarding Ms. Brown’s alleged December

12, 2011 infraction. Baynes Test., ECF No. 39-6 at 79:5-80:21.

Mr. Duru also relies on Ms. Ohler’s OEA testimony,

frequently citing it for the proposition that “Brown had a

disciplinary infraction on December 12, 2011, although [Ohler]

seems to not be aware that Brown also had a disciplinary action

on December 13, 2011.” See, e.g., Pl.’s Opp’n, ECF No. 39 at 14,

33, 36, 39. The Court disagrees that Ms. Ohler was aware of a

third, unrecorded infraction. After carefully reading the entire

hearing transcript, it is clear that Mr. Duru mischaracterizes

Ms. Ohler’s testimony. Making all inferences in Mr. Duru’s

favor, Ms. Ohler was obviously confused about the dates of the

two December 2011 incidents. For example, Mr. Duru’s counsel

begins questioning Ms. Ohler about the allegedly unrecorded

December 12, 2011 incident by asking whether Ms. Ohler was

“aware of whether Ms. Brown, the day before this incident, had

been involved in an incident . . . . were you aware of any event

on December 12th involving Ms. Brown?” Ohler Test., ECF No. 39-7

at 162:20-163:3. However, just before this question was asked,

Ms. Ohler was testifying about the December 15, 2011 incident—

not, as the convoluted question suggests, the December 13, 2011

incident. Id. at 160-162.

27
 Moreover in the same line of questioning, Ms. Ohler

testifies that Ms. Brown received an “official reprimand” for

the alleged December 12, 2011 incident—the discipline that she

actually received for the December 13, 2011 incident. Id. at

163:9-14. When Mr. Duru’s counsel asked whether management knew

about the allegedly unrecorded December 12, 2011 incident, Ms.

Ohler testified that management knew about the incident

involving “both employees” on “the first date.” Id. 170:16-

171:9. Accepting Mr. Duru’s arguments, Ms. Ohler was referring

to the December 13, 2011 incident because the allegedly

unrecorded December 12, 2011 event involved only Ms. Brown.

This conclusion becomes all the more clear once Ms. Ohler

realized that Mr. Duru’s counsel was asking her about a third

infraction:

Counsel: Do you have an understanding that Ms.
Brown had an event on December 12 of 2011 that
was in her [personnel] folder?

Ohler: Yes
Counsel: How about December 13 of 2011?
Ohler: I don’t know that one.
Counsel: Wasn’t Ms. Brown on duty with Mr.
Duru when the youths went through the ceiling
in the restroom?
Ohler: That’s the thing that I was referring
to.
Counsel: What thing?
Ohler: All I knew for Ms. Brown was the event
where the youths got in the ceiling and this

28
 event for which we’re here today, whatever
those dates are.
Counsel: . . . Were you aware of an event where
youths got into the ceiling through the main
floor on December the 12th of 2011 by stacking
tables?
Ohler: I’m sorry . . . are you telling me
there’s three events in three days? . . . I
know of two events in the December time frame.
Ohler Test., ECF No. 39-13 7 at 193:4-194:6.

Despite her confusion, Ms. Ohler continually maintained

that Ms. Brown had “no other instances in her file within the

past three years.” Ohler Test., ECF No. 39-7 at 172: 12-19.

Therefore, her OEA testimony does not raise a factual dispute as

to whether Ms. Brown had a third, unrecorded infraction known to

DYRS. To use this obvious misunderstanding to support the

proposition that Ms. Brown had three known infractions is

misleading. Furthermore, Ms. Ohler’s testimony that Ms. Brown

only had two known infractions is corroborated by Arnita Evans,

another DYRS HR Specialist. See Evans Dep., ECF No. 39-5. At her

deposition, Ms. Evans testified that there were only two

infractions in Ms. Brown’s personnel folder—both from the

December 13, 2011 and December 15, 2011 incidents. Id. at 51:10-

15. When specifically asked whether there was an additional

7 Mr. Duru attached Ms. Ohler’s OEA administrative hearing
testimony as separate exhibits. However, this testimony is from
the same hearing.
29
event in December 2011, Ms. Evans testified that she was not

aware of another incident. Id. at 68:21-69:2; 90:3-15.

With only Mr. Duru’s unsubstantiated allegations that Ms.

Brown committed unreported infractions, he fails to establish

that he was similarly situated to Ms. Brown. Ultimately, no

reasonable jury could conclude that the District was motivated

to fire him based on his national origin.

V. Conclusion

Drawing every justifiable inference in Mr. Duru’s favor, as

the Court must, it finds no basis upon which a reasonable

factfinder could conclude that the District was motivated by Mr.

Duru’s national origin when it terminated him. See Celotex, 477

U.S. at 322 (“Rule 56(c) mandates the entry of summary judgment

. . . against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case . . . .”). Accordingly, the District’s motion for summary

judgment is GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
April 9, 2018

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