Rae v. Children's National Medical Center

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
CHARLESWORTH RAE, )
)
Plaintiff, )
)
v. ) No. 15–cv-0736 (KBJ)
)
CHILDREN’S NATIONAL MEDICAL )
CENTER, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiff Charlesworth Rae, an African-American man of Antiguan descent, was

employed as an Investigational Research Pharmacist at Children’s National Medical

Center (“CNMC”) from February of 2010 until CNMC terminated his employment in

December of 2014. (See 1st Am. Compl. (“Am. Compl.”), ECF No. 22-1, ¶¶ 3, 5, 7.)

Rae has brought the instant action against CNMC and various CNMC employees

(collectively, “Defendants”) under both federal and state law, alleging that he was not

promoted, and was eventually terminated, due to his race and national origin, and also

that Defendants ultimately fired him in retaliation for his having repeatedly expressed

legitimate concerns about CNMC’s pharmacy operations and for filing a police report

accusing his supervisor of assault. (See id. ¶¶ 46–78.) Rae’s claims have been

narrowed through the course of this litigation, such that the only claims that are still at

issue are those that he asserts for (1) wrongful termination in violation of public policy

(Counts I and II); (2) racially discriminatory and retaliatory discharge in violation of

the D.C. Human Rights Act (“DCHRA”), D.C. Code Ann. §§ 2-1401.01–1404.04
(Count III); (3) racially discriminatory and retaliatory discharge in violation of 42

U.S.C. § 1981 (Count IV); and (4) racially discriminatory and retaliatory discharge in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–e-17 (Count

VI). Counts I–IV are asserted against CNMC, Dr. Sarah Donegan (Rae’s supervisor),

Dr. Ursula Tachie-Menson (Donegan’s supervisor), Zandra Russell (a CNMC Human

Resources representative), and Darryl Varnado (CNMC’s Executive Vice President and

Chief People Officer). (See id. at 1 n.1.) 1 Count VI is asserted only against CNMC.

(See id.)

On March 15, 2017, after discovery had closed, this Court referred this matter to

a magistrate judge for full case management through the district’s random-assignment

process. (See Min. Entry of Sept. 6, 2016; Min. Order of Mar. 15, 2017.) The case was

assigned to Magistrate Judge Deborah Robinson, who subsequently granted in part a

motion that Rae filed seeking to reopen discovery. (See Mem. Op. & Order, ECF No.

40, at 4, 7.) The parties proceeded to engage in a renewed period of discovery, and

once they had resolved all of their discovery disputes, Defendants filed a motion for

summary judgment. (See 2d. Joint Status Report, ECF No. 58; see also Defs.’ Mot. for

Summ. J. (“Defs.’ Mot.”), ECF No. 59.) On March 28, 2018, Magistrate Judge

Robinson issued the Report and Recommendation (“R & R”) that is appended hereto as

Appendix A; in that Report, Magistrate Judge Robinson recommends that Defendants’

summary judgment motion be granted in its entirety with respect to Rae’s remaining

claims against the remaining defendants. (See R & R, ECF No. 71, at 2.)

1
Page number references to the documents that the parties have filed refer to those automatically
assigned by the Court’s electronic case-filing system.

2
 Before this Court at present is the R & R and Rae’s objection thereto. (See Pl.’s

Obj. to R & R (“Pl.’s Obj.”), ECF No. 78.) Rae argues that Magistrate Judge Robinson

applied the wrong causation standard to his claims (see id. at 1), that the R & R

improperly found that he had not specified any identifiable policy to support his claims

for wrongful termination in violation of public policy (see id. at 2), that Magistrate

Judge Robinson erred in finding that he had not identified evidence to support his

claims of discrimination and retaliation against CNMC (see id. at 4, 12–13; 17–18), and

that Magistrate Judge Robinson had improperly granted summary judgment to the

individual defendants based on the purported failure of his claims against CNMC (see

id. at 15). Rae’s objection further maintains that CNMC may have “vitiated” their “at-

will employment relationship” because it offered him a severance package—an

argument that he did not include in the summary judgment briefing that Magistrate

Judge Robinson addressed. (See id. at 17.) 2

This Court has carefully reviewed the R & R, the parties’ submissions, and the

record evidence, and for the reasons explained below, the Court concludes that

Magistrate Judge Robinson’s report and recommendation must be ADOPTED IN

PART, and Defendants’ motion for summary judgment will ultimately be GRANTED

IN FULL. In particular, while the Court finds that Magistrate Judge Robinson applied

the wrong causation standard to the wrongful discharge claim and that the R & R is also

erroneous with respect to its finding that Rae had not identified any public policy to

2
Because Rae did not raise this issue in the underlying summary judgment briefing, he is precluded
from raising it in the context of an objection to the report and recommendation, see, e.g., Sciacca v.
Fed. Bureau of Investigation, 23 F. Supp. 3d 17, 27 (D.D.C. 2014) (citation omitted), and this Court
has not considered it.

3
support his wrongful termination claims, the Court agrees with Magistrate Judge

Robinson that there is insufficient record evidence of causation with respect to all of

Rae’s claims, and thus no reasonable jury could find that Rae had satisfied each of the

elements for any of the legal claims presented. Therefore, Defendants are entitled to

summary judgment. A separate Order consistent with this Memorandum Opinion will

follow.

I. BACKGROUND

The factual and procedural background underlying this matter is fully recounted

in Magistrate Judge Robinson’s R & R and the various prior rulings that narrowed the

scope of the claims on which Rae is proceeding. What follows is a brief recitation of

the relevant background facts pertaining to Rae’s remaining claims, which turn on his

contention that Defendants are liable for “Racially Discriminatory/Retaliatory

Discharge” (see Am. Compl., Counts III, IV, VI) and for terminating his employment in

violation of public policy (see id. Counts I, II). 3

A. Facts

CNMC hired Rae in February of 2010 as a pharmacist in the Investigational Drug

Services (“IDS”) Pharmacy, and he was an at-will employee of CNMC. (See Decl. of

Charlesworth Rae (“Rae Decl.”), Ex. 1 to Pl.’s Opp’n to Defs.’ Mot. for Summ. J., ECF

No. 60-2, ¶¶ 2–3.) Shortly after Rae was hired, he began expressing safety and

regulatory concerns with respect to various practices that he allegedly observed at

CNMC. For example, he reported to the Food and Drug Administration (“FDA”) his

3
The background facts that are recounted in this Memorandum Opinion are not disputed. They are
drawn from the exhibits that are attached to the parties’ summary judgment filings, which consist of
depositions, declarations, and materials produced during discovery.

4
concerns about data tampering and falsification of records with respect to an ongoing

study. (See id. ¶ 4.) Such reports continued throughout his tenure. (See, e.g., id. ¶¶ 5,

16–18.) In September of 2013, defendant Dr. Sarah Donegan (who is Caucasian) was

hired as the Manager of the IDS Pharmacy, even though she lacked a license to practice

pharmacy in the District of Columbia at the time that she was hired. (See id. ¶ 8.)

Donegan and Rae had a tense relationship from the moment that Donegan began

working at CNMC. In one instance, for example, Donegan conveyed to Rae that he was

improperly loud and aggressive when he addressed her. (See Ex. 16 to Defs.’ Mot.,

ECF No. 59-18, at 1 (noting that Donegan told Rae during a meeting that she felt

bullied by him during their interactions because he repeatedly interrupted her and

increased his tone when talking to her); Ex. 19 to Defs.’ Mot., ECF No. 59-21, at 1

(noting, in the context of a counseling memorandum that Donegan issued to Rae

regarding his behavior, that Rae “raised [his] voice” and refused to lower it, and

“became disruptive to others” during a meeting on May 29, 2014).) In addition,

Donegan had concerns about Rae copying his personal email when responding to her or

sending emails to CNMC employees, and she asked him to refrain from doing this—a

request that Rae did not honor. (See Ex. 24 to Defs.’ Mot., ECF No. 59-26, at 1.) Rae

also apparently initially resisted instructions from Donegan to sign off on certain

paperwork in connection with a research study, which resulted in a warning from

Donegan to Rae about his conduct being deemed insubordination. (See Ex. 25 to Defs.’

Mot., ECF No. 59-27, at 1–5.) Rae ultimately signed off on the necessary paperwork,

but he indicated that he was doing so “under duress.” (Id. at 1.)

5
 The tense nature of their relationship was apparently also obvious to others at

CNMC. On December 13, 2013, Donegan’s supervisor, Dr. Tachie-Menson, sent an

email to CNMC’s Human Resources office (“HR”) requesting a meeting to discuss Rae

in light of her concerns that Rae “is undermining [Donegan’s] authority [because]

[w]henever he doesn’t agree with a decision made by her, he sends a response to HR

and to compliance[,] . . . [and he] has been resistant to any change she has attempted to

make for the improvement of the workflow and documentation compliance.” (Ex. 15 to

Defs.’ Mot., ECF No. 59-17, at 1.) The record is also replete with email

communications between Donegan and Rae—with cc’s to Rae’s personal email account,

Tachie-Menson, and various individuals in HR, including HR contact Zandra Russell—

and these exchanges consistently demonstrate Rae’s resistance to Donegan’s requests to

meet with him individually to discuss issues related to his work. (See, e.g., Ex. 16 to

Defs.’ Mot. at 1; see also Ex. 20 to Defs.’ Mot., ECF No. 59-22, at 1 (email from Rae to

Donegan in response to an Outlook meeting invitation, in which Rae states, “Based on

your repeated hostility towards me . . . I would prefer not to meet . . . today.

Alternatively, I would like to have an opportunity to first discuss my concerns with the

Legal Department before meeting with you and HR under these circumstances”); Ex. 22

to Defs.’ Mot., ECF No. 59-24, at 1 (email chain between Russell and Rae, during

which Russell states, in response to Rae’s statements about being uncomfortable

meeting with Donegan, that “Dr. Donegan has the right as your manager to meet with

you to discuss work-related issues[,]” and that “you were [previously] advised to meet

with Pharmacy management when requested and to perform your job as expected”).)

6
 For his part, Rae allegedly had his own concerns about Donegan’s conduct and

work performance. In October of 2014, Rae filed a claim of assault with the

Metropolitan Police Department, based on his allegation that Donegan had “hit [him] on

[his] shoulder” in a manner that did not physically hurt him. (Rae Dep., Ex. 5 to Defs.’

Mot., ECF No. 59-7, at 22.) Rae also complained to CNMC’s compliance officer that

Donegan was engaging in the unauthorized practice of pharmacy, and he submitted

various reports regarding safety concerns that he had with respect to Donegan’s

handling of drugs. (See, e.g., Rae Decl. ¶¶ 10–11, 13.) In addition, Rae filed two

charges with the EEOC alleging that Donegan was discriminating against him and

harassing him—the first on June 30, 2014, and the second on November 25, 2014. (See

id. ¶¶ 21, 28.) 4 In the context of the instant action, Rae further claims that Donegan

shouted at him on various occasions (see, e.g., Ex. 14 to Defs.’ Mot., ECF No. 59-16, at

1), and that she otherwise engaged in conduct that was “professionally disrespectful,

demeaning, and unbecoming of a manager” (Ex. 16 to Defs.’ Mot. at 1). Rae emailed

Daryl Varnado (an HR executive), Russell, Tachie-Menson, and other HR staff on

numerous occasions to complain about Donegan’s treatment of him, including to report

that Donegan was subjecting him to unwarranted “hostility” (e.g., Ex. 13 to Pl.’s Opp’n,

ECF No. 60-14, at 1), that she had was violating CNMC’s Harassment/Discrimination

Policy and Procedure (see Ex. 14 to Pl.’s Opp’n, ECF No. 60-15, at 1), and that she had

“publicly ridiculed and embarrassed” him (Ex. 15 to Pl.’s Opp’n, ECF No. 60-16, at 1).

Rae’s relationship with Donegan deteriorated over time, such that he eventually

requested that an HR representative be present for any meeting between them. (See,

4
Defendants did not become aware of Rae’s November charge until after his termination. (See Aff. of
Zandra Russell (“Russell Aff.”), ECF No. 59-48, ¶ 16.)

7
e.g., Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Stmt. of Undisputed Facts, ECF

No. 59-1, at 18–21.) However, Donegan and the HR office both made clear to Rae that

he did not have a right to insist that someone else be present when he met with his

supervisor (see, e.g., Ex. 23 to Defs.’ Mot., ECF No. 59-25, at 1; Ex. 24 to Defs.’ Mot.,

ECF No. 59-26, at 1), and Donegan ultimately informed Rae that if he refused to meet

with her without a witness present, his refusal “will be characterized as

insubordination” (Ex. 24 to Defs.’ Mot. at 1).

The final and noteworthy incident before Rae’s termination occurred on December

3, 2014. Donegan had instructed Rae to appear at the HR office on December 3rd at 3

PM for a “Performance Review Discussion” with her and Russell. (Ex. 18 to Pl.’s Opp’n,

ECF No. 60-19, at 1; Ex. 37 to Defs.’ Mot. (“Termination Letter”), ECF No. 59-39, at 1.)

Rae sent a responsive email to Tachie-Menson, copying Donegan and various other

individuals on December 3rd:

I wish to acknowledge receipt of an invitation from my
immediate supervisor, Dr. Sarah Donegan, for a mandatory
meeting with me and a HR Representative (Zandra Russell)
today at 3 pm. Based on the repeated hostile and unduly
stressful meetings I have had with Dr. Donegan that have
severely affected my health, coupled with my outstanding
complaint of assault, it will be unhealthy and unproductive for
me to meet with her at this time. Accordingly, I would like
to request that any discussions regarding my performance
evaluation at this time occur[] in writing.

(Ex. 33 to Defs.’ Mot., ECF No. 59-35, at 1.) When Donegan subsequently asked Rae

if he intended to attend the meeting as scheduled, he stated that he was waiting for

Tachie-Menson to respond to his email. (See Rae Decl. ¶ 31.) A hallway confrontation

between Rae and Donegan ensued, after which Rae went to his car. (See id. ¶¶ 32–33.)

He returned to the building shortly thereafter and asked for a security escort to the 3

8
PM meeting. (See id. ¶ 34.) Donegan and Russell were not in the HR suite, and

Donegan testified that this was because she believed that Rae had refused to attend the

meeting. (See Donegan Dep., Ex. 6 to Defs.’ Mot., ECF No. 59-8, at 8.) Varnado was

called to the suite, and he placed Rae on indefinite administrative leave pending an

investigation. (See Rae Decl. ¶¶ 36–37.)

In the course of the investigation that followed, Russell learned that “Rae came

to Human Resources [on December 3] with a CNMC security officer to file a complaint

about Donegan’s request for a mandatory meeting with him” because he believed “that

Dr. Donegan’s request was a form of harassment.” (Russell Aff. ¶ 13.) “Based on the

investigation into [] Rae’s conduct, Human Resources recommended that [] Rae’s

employment be terminated for his repeated harassing and insubordinate conduct toward

his supervisor, Dr. Donegan, which had been well documented.” (Id. ¶ 14.) This

decision was memorialized in a letter that Russell drafted on December 4, 2014,

terminating Rae’s employment effective December 8, 2014. (See id. ¶ 15; Termination

Letter at 1.)

B. Procedural History

Rae filed his initial complaint pro se on May 15, 2015, and on March 25, 2016,

this Court issued an Order dismissing certain claims and allowing Rae to file an

amended complaint. (See Compl., ECF No. 1; Order, ECF No. 18, at 1–2.). 5 Rae filed

his Amended Complaint on May 24, 2016. (See generally Am. Compl.) Rae secured

counsel to represent him during the discovery period, but that representation ended after

discovery closed and before summary judgment motions were filed. (See Notice of

5
Rae purports to have received a Juris Doctorate degree from Rutgers. (See Compl. ¶ 11.)

9
Appearance, ECF No. 30; Mot. to Substitute Counsel, ECF No. 32.) Once again

proceeding pro se, Rae moved to reopen discovery, asserting that his former counsel

had falsely represented that all discovery issues had been resolved. (See Mot. to

Reopen Disc., ECF No. 34, at 2–3.) Magistrate Judge Robinson granted this request in

part (see Mem. Op. & Order, ECF No. 40), and during the reopened discovery period,

new counsel entered an appearance for Rae (see Notice of Appearance, ECF No. 51).

Then, at the close of the reopened discovery period, the parties jointly represented to

Magistrate Judge Robinson that all outstanding discovery issues had been resolved. (See

2d Joint Status Report, ECF No. 58.)

CNMC filed its motion for summary judgment on July 28, 2017. In that motion,

Defendants argue that Rae’s claims for discrimination and retaliation fail as a matter of

law, because CNMC has provided a legitimate, non-discriminatory reason for his

termination—insubordination—and that there is no record evidence establishing that

this reason is a pretext for discrimination or retaliation. (See Defs.’ Mem. at 32–35,

40–41.) Defendants further argue that Rae cannot prove that similarly-situated

employees were treated differently (see id. at 39–40), and that they are also entitled to

summary judgment on Rae’s wrongful termination in violation of public policy claim,

because Rae has not identified a specific policy that his termination violates and cannot

prove that his termination was the result of anything other than his insubordination (see

id. at 44–45). Finally, with respect to the claims Rae has brought against the individual

CNMC employees, Defendants assert that such claims are foreclosed because there is

no evidence that these individuals acted with malice or beyond the scope of their

employment at CNMC. (See id. at 45–46.)

10
 Rae opposes Defendants’ summary judgment motion, arguing that the record

contains “sufficient evidence for a jury to conclude that the reason given for his

termination was false[,]” and that “the real reasons were (1) retaliation for reporting

violations of regulations related to patient safety and the safety of drugs dispensed to

the public; (2) retaliation for making a complaint of assault to the Metropolitan Police

Department; and (3) retaliation for reporting harassment, hostile work environment and

discrimination.” (Pl.’s Opp’n at 1–2.) 6 Defendants’ motion for summary judgment

became ripe for review on October 16, 2017. (See Reply to Pl.’s Opp’n, ECF No. 70.)

Magistrate Judge Robinson issued her Report and Recommendation regarding

Defendants’ motion on March 28, 2018. (See generally R & R.) The R & R

recommends that Defendants’ motion for summary judgment with respect to Rae’s

claim for termination in violation of public policy be granted for two independent

reasons. First, Magistrate Judge Robinson finds that Rae has failed to specify an

“identifiable policy[,]” which is required to state a claim for wrongful discharge in

violation of public policy under D.C. law. (R & R at 15 (internal quotation marks and

citation omitted).) See Clay v. Howard Univ., 128 F. Supp. 3d 22, 27 (D.D.C. 2015)

(“To state a claim for wrongful discharge in violation of public policy, the plaintiff

must point to some identifiable policy that has been officially declared in a statute or

municipal regulation, or in the Constitution, and a close fit between the policy and the

conduct at issue in the allegedly wrongful termination.” (quoting Davis v. Cmty.

Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709–10 (D.C. 2013)) (internal

6
Shortly after filing this opposition brief, Rae’s counsel moved to withdraw her appearance. (See Mot.
to Withdraw as Att’y, ECF No. 63.) Rae has been proceeding pro se since Magistrate Judge Robinson
granted the withdrawal motion. (See Min. Order of Oct. 19, 2017.)

11
quotation marks omitted).) Magistrate Judge Robinson also concludes that Rae “has

offered no evidence that his protected conduct was the ‘sole reason’” for his

termination, and has instead offered “only his bare speculation[.]” (R & R at 17

(quoting Hewitt v. Chugach Gov’t Servs., Inc., No. 16-cv-2192, 2016 WL 7076987, at

*2 (D.D.C. Dec. 5, 2016)).)

Magistrate Judge Robinson’s R & R further concludes that Defendants are

entitled to summary judgment on Rae’s retaliation claims, primarily because the only

adverse action at issue was his termination (see id. at 7 n.5), and Rae “offered no

evidence that the proffered reason for the termination of his employment was false, or

was a pretext for retaliation (see id. at 18). Instead, according to the R & R, the

“Statement of Genuine Issues” that is included in Rae’s brief “merely recounts the

chronology of events during the course of his employment at CNMC; his concerns

regarding patient safety and the safety of drugs dispensed to the public; his complaints

regarding harassment, hostile work environment and discrimination, and his denial of

having been insubordinate.” (Id.) Magistrate Judge Robinson also explains that she

“reviewed each of the exhibits Plaintiff filed” in order to determine whether any “serves

as evidence of a genuine issue regarding a fact material to Plaintiff’s retaliation claims”

and found that none did. (Id. at 19.) 7 With respect to the retaliation claims that Rae

has brought against the individual defendants, Magistrate Judge Robinson finds that the

individual defendants are also entitled to summary judgment, because “any claim

7
The R & R treats Rae’s discrimination claims as having been subsumed into his retaliation allegation,
and therefore effectively “withdrawn,” because his opposition brief contained no argument regarding
those claims. (R & R at 7 n.5.) Rather, Rae specifically asserts that the real reason for his termination
was retaliation. (See Pl.’s Opp’n at 1–2.)

12
against any one of them must be predicated upon one or more of the causes of action

which Plaintiff pled, none of which can survive summary judgment.” (Id. at 20.)

Rae has asserted a number of objections to the R & R’s finding and conclusions.

(See generally Pl.’s Obj.) With respect to his claim for wrongful termination in

violation of public policy, Rae’s objection is twofold. He argues, first, that he has

identified a public policy to support his claims; specifically, “‘the public policy

underlying the legal proscriptions on the storage and handling of drugs[.]’” (Pl.’s Obj.

at 2 (quoting Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999)).) Rae

also contends that the proper causation standard for claims alleging termination in

violation of public policy is a “predominate reason” and not the “sole reason” standard

that Magistrate Judge Robinson applied (id. at 1 (citing Bereston v. UHS of Del., Inc.,

180 A.3d 95 (D.C. 2018)), and that there is sufficient record evidence to show that his

conduct in reporting safety concerns regarding prescription drugs was a predominate

reason for his termination (see id. at 4). With respect to his claims for retaliatory

discharge under Title VII, section 1981, and the DCHRA, Rae contends that the proper

causation standard for such claims is a “motivating reason” standard, rather than the

“but for” standard that Magistrate Judge Robinson applied. (Id. at 1.) And he further

maintains that the question of whether his protected conduct led to his termination is

one for a jury, “because there is a close temporal relationship between [his] claimed

protect[ed] activity and the falsity of the reasons Defendants give for [his] termination.”

(Id. at 12.) Finally, Rae objects to the findings regarding his claims against the

individual defendants, arguing that he did not have a fair opportunity during discovery

13
to develop evidence about whether they acted with malice or outside the scope of their

employment. (See id. at 16.) 8

Defendants respond that this Court should overrule Rae’s objections to the R &

R because Magistrate Judge Robinson applied the appropriate causation standard for his

claims (see Defs.’ Resp. to Pl.’s Obj., ECF No. 80, at 5), correctly found that he had not

identified a public policy on which to predicate a wrongful termination claim (see id. at

6–8), properly concluded that Rae did not produce sufficient evidence to send any of his

claims to a jury (see id. at 8–10), and correctly dismissed the claims against the

individual defendants on the grounds that his underlying claims all failed (see id. at 10).

Rae replied to Defendants’ arguments concerning his objection on July 6, 2018. (See

Reply to Defs.’ Obj. Resp., ECF No. 85.) 9

8
Rae does not object to the R & R’s conclusion that he is now proceeding solely on his claims for
retaliation and not racially-based disparate treatment (see supra n.7), and this Court generally agrees
that he abandoned his disparate treatment claims by not pursuing them in the context of the underlying
summary judgment briefing. However, as explained in Part III.B, infra, the Court also finds, in the
alternative, that the state of the record is such that no reasonable jury could conclude that Defendants’
asserted reason for his termination was a pretext for race discrimination.
9
Following the completion of briefing on the objection to the R & R, Rae submitted a supplemental
declaration in support of the objection. (See Pl.’s Suppl. Obj., ECF No. 96.) This declaration largely
consists of a reiteration of the events underlying this case, with additional citations to the record and
case law. In addition, Rae makes new legal arguments which, as noted supra in note 2, are not proper
in the context of an objection to a report and recommendation, and which this Court will not consider.
(See, e.g., id. at 19–20 (arguing that the CNMC Employee Handbook is an employment contract, and
that CNMC breached that contract by terminating him); id. at 28–29 (arguing that he was engaged in
the protected activity of opposing an unlawful discriminatory practice when he copied his personal
email); id. at 49 (arguing that the wrong statute of limitations was applied to his claims under section
1981).)

14
II. LEGAL STANDARDS

A. Review Of Objections To A Magistrate Judge’s Report And
Recommendation

When a magistrate judge issues a report and recommendation on a motion for

summary judgment, any party may file written objections to the proposed findings and

recommendations within fourteen days. See LCvR 72.2(a)(3), (b). Any objection must

“specifically designate the order or part thereof to which objection is made, and the

basis for the objection.” See LCvR 72.3(d). And upon receipt of a timely objection,

this Court is obligated to “make a de novo determination of those portions of the report

or specified proposed finding or recommendations to which objection is made.” 28

U.S.C. § 636(b)(1).

Put another way, “the Court’s analysis with respect to such issues is ‘equivalent

to a decision in the first instance on the merits’ of the [motion] for summary judgment.”

Harris v. Friendship Pub. Charter Sch., No. 18-cv-396, 2019 WL 954814, at *2

(D.D.C. Feb. 27, 2019) (quoting Rooths v. District of Columbia, 802 F. Supp. 2d 56, 60

(D.D.C. 2011)).

B. Motions For Summary Judgment Under Rule 56

To succeed on a motion for summary judgment, the moving party must “show[]

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact

cannot be or is genuinely disputed must support the assertion by citing to particular

parts of materials in the record[,]” Fed. R. Civ. P. 56(c)(1)(A), and “[a] fact is material

if it ‘might affect the outcome of the suit under the governing law[,]’” Steele v. Schafer,

535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

15
242, 248 (1986)). The moving party bears the initial burden of demonstrating the

absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). If the moving party meets this burden, the non-moving party must

designate “specific facts showing that there is a genuine issue for trial.” Id. at 324

(quoting Fed. R. Civ. P. 56(e)).

When assessing a motion for summary judgment, this Court’s role is solely to

determine “whether there is a genuine dispute for trial[,]” and the Court must not make

credibility assessments or weigh evidence. Barnett v. PA Consulting Grp., Inc., 715

F.3d 354, 358 (D.C. Cir. 2013). Instead, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477

U.S. at 255. Notably, however, the Court need not accept conclusory assertions that are

unsupported by the record evidence. See Ass’n of Flight Attendants–CWA, AFL–CIO v.

U.S. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009); see also Scott v. Harris,

550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of

which is blatantly contradicted by [video evidence in] the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes of

ruling on a motion for summary judgment.”).

III. ANALYSIS

As explained above, at issue at this stage of the instant case are Rae’s claims

for wrongful termination in violation of public policy (Counts I and II), and for racially

discriminatory and retaliatory discharge in violation of the DCHRA (Count III), 42

U.S.C. § 1981 (Count IV), and Title VII (Count VI). Magistrate Judge Robinson’s

R & R recommends that this Court grant Defendants’ motion for summary judgment

16
regarding these claims in its entirety, and this Court ultimately agrees, as explained

below. While Rae is correct that certain aspects of the R & R are erroneous, the Court

concludes that Rae has nevertheless provided insufficient evidence to support a jury

finding that the reason given for his termination was pretextual and that the real reason

was retaliation for his having engaged in certain protected activities or race

discrimination.

A. Defendants Are Entitled To Summary Judgment On Rae’s Claims For
Termination In Violation Of The Public Policies He Has Identified,
Because There Is No Evidence That Defendants Terminated Rae In
Violation Of Any Such Policy

As explained above, the R & R recommends that Defendants’ motion for

summary judgment with respect to Rae’s claim for termination in violation of public

policy be granted because Rae had failed to point to the requisite “identifiable

policy[,]” (R & R at 15 (quotation marks and citation omitted)), and because he “has

offered no evidence that this protected conduct was the sole reason” for his discharge,

instead relying on “only his bare speculation.” (See id. at 17 (internal quotation marks

and citation omitted).) Rae asserts that he has identified “‘the public policy underlying

the legal proscriptions on the storage and handling of drugs’” (Pl.’s Obj. at 2 (quoting

Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999))), and he further

maintains that there is sufficient record evidence to show that his protected conduct was

a predominate reason for his termination (see Pl.’s Obj. at 4; see also Pl.’s Suppl. Obj.

at 46.) This Court agrees with Rae that he has identified a public policy to support his

wrongful termination claim, and that the “predominate reason” standard applies, but

Rae has not provided evidence from which a reasonable jury could determine that his

17
reports about drug handling and pharmacy practices were a predominate reason for his

termination.

1. The R & R Incorrectly Found That Rae Had Not Identified A Public
Policy And Applied The Wrong Legal Standard To His Claim

In Adams v. George W. Cochran & Co., Inc., 597 A.2d 28 (D.C. 1991), the

District of Columbia Court of Appeals held “that there is a very narrow exception to the

at-will doctrine under which a discharged at-will employee may sue his or her former

employer for wrongful discharge when the sole reason for the discharge is the

employee’s refusal to violate the law, as expressed in a statute or municipal regulation.”

Id. at 34. The Court later clarified “that the ‘very narrow exception’ created in Adams”

was not so narrow as to foreclose the exception entirely, and, in particular, that the

exception “should not be read in a manner that makes it impossible to recognize any

additional public policy exceptions to the at-will doctrine that may warrant

recognition.” Carl v. Children’s Hosp., 702 A.2d 159, 160 (D.C. 1997).

In finding that Rae had not pointed to a recognized public policy that could

support invocation of this exception, Magistrate Judge Robinson distinguished the key

case on which Rae relies, Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999),

which involved a plaintiff’s claim that he was wrongfully discharged “in retaliation for

his threat to report to the Federal Drug Administration [] the unlawful condition in

which his employer was storing pharmaceutical drugs[.]” Id. at 1327. Relying on

Adams, the D.C. Circuit panel found that the plaintiff’s termination implicated “the

public policy underlying the legal proscriptions on the storage and handling of drugs”

and “protecting the public from the purchase of adulterated drugs[,]” and thus, that the

plaintiff had stated a cognizable claim for termination in violation of public policy. Id.

18
at 1331. Magistrate Judge Robinson nevertheless rejected Rae’s reliance on Liberatore,

on the grounds that Rae was basing his claim on what she perceived to be a different

policy: “patient safety and the safety of drugs dispensed to the public.’” (R & R at 17

n.7 (quotation marks and citation omitted); see also Pl.’s Obj. at 9–10 (noting that Rae

had made safety reports regarding “patient safety concerns pertaining to drug potency

and regulatory concerns”); id. at 13 (pointing out Rae’s reporting of “a number of ‘good

catches’ drug safety interventions involving expired investigational drugs”).)

This Court finds that the distinction that the R & R draws between a public

policy concerning “the legal proscriptions on the storage and handling of drugs” and

“protecting the public from the purchase of adulterated drugs”—which Liberatore

plainly recognizes, 168 F.3d at 1327—on the one hand, and a public policy concerning

“patient safety and the safety of drugs dispensed to the public’” (R & R at 17 n.7), on

the other, is one without a difference, as far as the wrongful termination tort is

concerned. Therefore, based on the authority of Liberatore, this Court concludes that

Rae has, in fact, identified a public policy on which he can base the wrongful

termination claim in Count I. And to the extent that Rae alternatively seeks to ground

his tort claim on his report to MPD that Donegan assaulted him (see Pl.’s Opp’n at 8),

he has likewise plainly identified the necessary public policy for Count II, see Perkins

v. WCS Constr., LLC, No. 18-cv-751, 2018 WL 5792828, at *8 (D.D.C. Nov. 5, 2018)

(finding that plaintiff stated a claim for wrongful termination in violation of public

policy based on her reporting a criminal threat of assault).

The R & R also mistakenly determined that the narrow Adams exception to at

will termination “is recognized in this jurisdiction [only] when violation of such public

19
policy is the ‘sole reason’ for the employee’s termination.” (R & R at 11 (quoting

Arias v. Marriott Int’l, Inc., 217 F. Supp. 3d 189, 197 (D.D.C. 2016).) While the D.C.

Court of Appeals in Adams initially established a “sole reason” standard, its later

decisions have adopted the “predominant reason” standard to which Rae points. See,

e.g., Bereston v. UHS of Delaware, Inc., 180 A.3d 95, 104 n.25 (D.C. 2018); Davis v.

Cmty. Alternatives of Wash., D.C., Inc., 74 A.3d 707, 710 (D.C. 2013); Wallace v.

Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886 n.25 (D.C. 1998).

Consequently, to survive Defendants’ motion for summary judgment with respect to

Counts I and II, Rae’s wrongful termination claims must be supported by sufficient

evidence to permit a reasonable jury to conclude that Rae was discharged

predominantly because he did not countenance CNMC’s alleged violations of drug-

handling or safety standards, or predominantly because he did not keep quiet about

Donegan’s alleged assault.

2. The R & R Correctly Found That There Is Insufficient Evidence
Connecting Rae’s Protected Conduct To His Termination

On the record presented here, this Court concludes (as Magistrate Judge

Robinson ultimately did) that there is no genuine issue of material fact concerning

whether Rae’s conduct in making drug safety reports or his police report concerning

Donegan was a predominant reason for his termination.

Rae’s efforts to establish such a genuine dispute are primarily comprised of an

attempt to raise the specter of pretext, by making various assertions that relate to the

legitimate reason that CNMC offered for his termination—that his “continued pattern of

insubordinate and harassing behavior” towards Donegan, including the facts

surrounding his attendance at the December 3, 2014, meeting. (Termination Letter at

20
1.) For instance, Rae emphasizes that he “did in fact attend the meeting” on December

3 rd , and he argues that this circumstance indicates that CNMC’s “insubordination”

contention is pretextual. (Pl.’s Obj. at 6.) But his analysis in this regard ignores both

key facts about what Donegan believed concerning the meeting at issue, and also the

related and well-established principle that, when considering questions of pretext in the

employment realm, courts look not at “the correctness or desirability of the reasons

offered, but whether the employer honestly believes in the reasons it offers.” Woodruff

v. Peters, 482 F.3d 521, 531 (D.C. Cir. 2007) (quotation marks and citation omitted).

And based on the undisputed record facts about what happened prior to that meeting,

there can be no question that Donegan reasonably believed that Rae did not plan to

attend the meeting. (See Donegan Dep. at 8.) Russell, too, apparently doubted Rae’s

willingness to meet as requested; she conducted an investigation and determined that

Rae was present in Human Resources on December 3rd at 3 PM not for the mandatory

meeting that Donegan had set, but for an entirely separate reason: to complain, once

again, about Donegan asking to meet with him in person. (See Russell Aff. ¶ 13.)

Thus, the record establishes that Russell and Donegan both sincerely and reasonably

believed that Rae was being insubordinate regarding the December 3rd meeting.

Rae also attempts to establish pretext based on the contention that his copying of

correspondence to his personal email was not a violation of CNMC’s IT policy. (See

Pl.’s Obj. at 7 (asserting that, therefore, “Defendants’ stated reason for Plaintiff’s

alleged insubordination for copying his email is false”).) But any dispute over whether

or not Rae’s copying conduct violation CNMC’s policies is not material. What is

relevant is that Donegan gave Rae an express instruction based on her reading of the

21
policy (see Ex. 27 to Defs.’ Mot., ECF No. 59-29, at 3–4), and that Rae refused to

comply (see id.). Rae does not dispute that Donegan had demanded that he cease that

behavior and that he did not do so; therefore, whether the IT policy actually prohibited

Rae from copying his personal email address is entirely beside the point. (See id.)

Similarly, Rae’s assertion that he did not continually harass Donegan, and that he

did not act unprofessionally toward her or undermine her authority (see Pl.’s Obj. at 7–

8), does not create a genuine issue regarding the real reason for his termination. Again,

the record is replete with evidence that indisputably establishes Rae’s insubordinate

conduct and contentions on various occasions, and the evidence also amply

demonstrates that Donegan and others had a legitimate basis for believing—and did, in

fact, believe—that Rae had acted inappropriately toward Donegan and refused to follow

her instructions. (See, e.g., Ex. 15 to Defs.’ Mot. at 1 (email from Tachie-Menson to

HR personnel on December 13, 2013, expressing concerns that Rae is undermining

Donegan’s authority); Ex. 19 to Defs.’ Mot., ECF No. 59-21, at 1 (counseling

memorandum from Donegan to Rae on June 4, 2014, reflecting her belief that Rae

inappropriately raised his voice when discussing a matter with her); Ex. 24 to Defs.’

Mot., ECF No. 59-26, at 1 (email from Donegan to Rae on August 24, 2014, stating that

if he refused to participate in a meeting with her “it will be characterized as

insubordination”); Ex. 25 to Defs.’ Mot., ECF No. 59-27, at 5 (email from Donegan to

Rae on October 8, 2014, explaining that his refusal to comply with her instructions to

sign certain documents would be deemed insubordination); see also Rae Decl. ¶ 20

(admitting that Donegan had expressed that she felt bullied by him).) And there is

nothing in the record that supports the conclusion that Rae’s reporting activity played

22
any role in the termination decision, much less that it was the predominate reason for

his firing.

Indeed, the only record evidence that could conceivably support the

predominance element of Rae’s public policy claim is the proximity in time between

Rae’s drug safety and police reports and his termination. It appears that the last drug

safety report he made was in May of 2014, which was seven months before his

termination (see Pl.’s Opp’n at 7–8), and that he contacted the police in October of

2014, two months before his termination (Ex. 30 to Defs.’ Mot, ECF No. 59-32, at 1.).

But Rae has not cited any wrongful termination cases that hold that the predominance

element can be satisfied solely based on timing of the activity that the public policy

protects relative to the employee’s termination, and this is especially so where, as here,

the two events are literally months apart. In the analogous realm of Title VII retaliation

claims, see Perkins, 2018 WL 5792828, at *8, it is well established that

a seven-month window between the protected activity and the adverse action does not

give rise to a reasonable inference that the former was the predominant reasons for the

latter. See, e.g., Wilson v. Mabus, 65 F. Supp. 3d 127, 133 (D.D.C. 2014) (finding that

a four-month gap between protected activity and an adverse action is too attenuated to

establish causation in a Title VII case). And, even if a two-month gap—such as the one

between Rae’s police report and his termination—is sufficiently close in time to raise a

genuine issue concerning causation based on temporal proximity (which is doubtful), it

would nevertheless be improper for a jury to infer that there is causation and pretext

based on such temporal proximity standing alone. See, e.g., Talavera v. Shah, 638 F.3d

303, 313 (D.C. Cir. 2011) (noting that “positive evidence beyond mere proximity is

23
required to defeat the presumption that the [employer’s] proffered explanations are

genuine” (internal quotation marks and citation omitted)); Snowden v. Zinke, 15-cv-

1382, 2020 WL 7248349, at *14 (D.D.C. Dec. 9, 2020) (explaining, in the context of a

Title VII retaliation case, that “temporal proximity between [protected activity and an

adverse employment action], standing alone, is insufficient to raise a reasonable

inference of pretext”). In the instant context, Rae has offered nothing more.

As a result, this Court confidently concludes that there are no genuine disputes

of material fact regarding whether Rae can establish each of the elements of the tort of

wrongful termination in violation of public policy, which means that Defendants are

entitled to summary judgment on Counts I and II.

B. Defendants Are Entitled To Summary Judgment On Rae’s Claims For
Retaliation And Discrimination And Under Title VII, 42 U.S.C.
§ 1981, And The DCHRA, Because There Is No Evidence That
Defendants Terminated Rae Due To His Protected Activities Or Race

The Court next considers Rae’s claims that that CNMC terminated him in

retaliation against for his protected activity, or that his termination was discriminatory

in violation of Title VII, section 1981, and the DCHRA. As mentioned, Magistrate

Judge Robinson concluded that Rae’s silence with respect to the discrimination claims

in the context of his opposition amounted to a withdrawal of his claims in this regard.

(See supra n.7.) But even if Rae had not forfeited his right to pursue those claims,

Magistrate Judge Robinson’s conclusion that Rae had “not offered ‘sufficient evidence’

from which a reasonable trier of fact could find in his favor; indeed, he has offered no

evidence that the proffered reason for the termination of his employment was false, or

was a pretext for retaliation” (R & R at 18) is not only accurate, it applies to the

discrimination claims as well.

24
 Magistrate Judge Robinson reached this conclusion while applying the

McDonnell Douglas burden-shifting framework, which “ requires that the plaintiff

must, first, point to evidence of a ‘prima facie case’—i.e., (1) that he engaged in

statutorily protected activity; (2) that he suffered a materially adverse action by his

employer; and (3) that a causal link connects the two.” Rochon v. Lynch, 139 F. Supp.

3d 394, 403 (D.D.C. 2015) (internal quotation marks and citation omitted), aff’d, 664 F.

App’x 8 (D.C. Cir. 2016). Once a plaintiff establishes his prima facie case, the burden

shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its

actions, and if it does so, “the McDonnell Douglas framework—with its presumptions

and burdens—disappear[s],” leaving only the ultimate question of “discrimination vel

non[.]” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142. “And on that

question, the burden of showing that a reasonable jury could find that defendant’s

reasons are pretextual and that the real reason for the adverse action was discriminatory

or retaliatory animus falls on the plaintiff.” Rochon, 139 F. Supp. 3d at 403. 10

Because Rae’s termination indisputably qualifies as an adverse action, and

because CNMC has articulated a legitimate, non-discriminatory reason for its decision

to terminate his employment, the central question that this Court must answer to decide

the pending summary judgment motion is “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

10
The McDonnell Douglas framework applies to Rae’s discrimination and retaliation claims because
he has not presented any direct evidence of discrimination or retaliation. See, e.g., Lemmons v.
Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006) (noting that, in the absence of direct
evidence of discrimination, claims under the DCHRA and section 1981 proceed under Title VII’s
McDonnell Douglas framework).

25
against the employee’ on the basis of a protected class or activity.” Davis v. Mnuchin,

No. 08-cv-0447, 2018 WL 8584035, at *13 (D.D.C. Nov. 13, 2018) (quoting Brady v.

Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)).

Rae objects to the R & R’s conclusion that his evidence is insufficient in this

regard, once again pointing to the purported falsity of the reasons that CNMC offered

for his termination, and the proximity of time between his protected activities and his

termination. (See Pl.’s Obj. at 12.) However, as this Court has already explained in

Section III.A.2, supra, there is no record evidence to support Rae’s assertion that the

reason that CNMC proffered for his termination was false, or that Donegan and Russell

did not actually believe that Rae had engaged in a “continued pattern of insubordinate

and harassing behavior towards [Donegan.]” (Termination Letter at 1.) What is more,

while Rae might well have complained to CNMC’s Human Resources office about

Donegan’s treatment of him in late November of 2014 and early December of 2014,

“[i]t is the binding precedent of this circuit that ‘positive evidence beyond mere

proximity [between protected activity and adverse action] is required to defeat the

presumption that the employer’s proffered explanations are genuine.’” Snowden, 2020

WL 7248349, at *14 (quoting Talavera, 638 F.3d at 313 (alterations omitted)). Rae has

not offered any admissible positive evidence demonstrating pretext, as previously

discussed, and he has therefore failed to establish that there is a genuine issue of fact

for trial concerning the reasons for his termination. 11

11
Rae’s lack of evidence showing that his termination was retaliatory necessarily means that the
standard of causation is irrelevant. But to the extent that Rae takes issue with Magistrate Judge
Robinson’s statement that a “but-for” causation standard applies to his retaliation claims, rather than a
“motivating reason” standard (Pl.’s Obj. at 1–2), he is mistaken in this regard as well. “[T]here is no
‘mixed motive’ retaliation[.]” Saunders v. Mills, 172 F. Supp. 3d 74, 86 (D.D.C. 2016) (citations

26
 C. The Individual Defendants Are Entitled To Summary Judgment On
Rae’s Wrongful Termination Claim And His Claims Under Section
1981 And The DCHRA Because, As Rae Has Pled Them, The Claims
Against The Individuals Are Indistinguishable From His Failed
Claims Against CNMC

Finally, this Court also agrees with Magistrate Judge Robinson’s conclusion

concerning the claims that Rae has brought against the individual defendants. Rae’s

complaint indicates that Counts I–IV are brought against CMNC and various individual

defendants. (See Am. Compl. at 1 n.1) Magistrate Judge Robinson’s R & R found that,

so pled, “any claim against any one of [the individual defendants] must be predicated

upon one or more of the causes of action which Plaintiff pled, none of which can

survive summary judgment.” (R & R at 20.) Cf. Brown v. Children’s Nat. Med. Ctr.,

773 F. Supp. 2d 125, 136 (D.D.C. 2011) (explaining that “a claim for individual

liability under [s]ection 1981 requires an affirmative showing linking the individual

defendant with the discriminatory action’” (quoting Page v. Winn–Dixie Montgomery,

Inc., 702 F. Supp. 2d 1334, 1355 (S.D. Ala. 2010))). The Court concurs with the R &

R’s conclusion that the claims that Rae has brought against the individual defendants

are indistinguishable from the claims that he makes against CNMC with respect to those

same causes of action. And Rae appears to take no issue with this basic legal principle;

instead, he contends that his retaliation claims do, in fact, survive summary judgment.

(See Pl.’s Obj. at 15–17.) Unfortunately for Rae, they do not. Therefore, the

individuals defendants, too, are entitled to summary judgment with respect to Counts I–

IV. 12

omitted). Rather, a retaliation claim “must be proved according to the traditional principles of but-for
causation.” Id.
12
Rae also contends that he did not have a fair opportunity to develop evidence regarding the
individual defendant’s motivations or whether they acted outside the scope of their employment. (See

27
IV. CONCLUSION

For the reasons articulated above, and as stated in the accompanying Order,

Magistrate Judge Robinson’s Report and Recommendation is ADOPTED IN PART,

and to the extent that she correctly concluded that there is no genuine issue of material

fact concerning whether or not Defendants terminated Rae in violation of public policy

or whether the reason that Defendants provided for Rae’s termination—his

insubordination and harassment of his supervisor—was a pretext for discrimination or

retaliation. The fact that the R & R’s analysis contains misrepresentations concerning

various legal standards and misapprehends Rae’s public policy argument does not

undermine its ultimate determination that Rae has not presented sufficient evidence to

proceed to trial. Consequently, Defendant’s Motion for Summary Judgment (ECF No.

59) must be GRANTED.

DATE: December 28, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

Pl.’s Obj. at 16.) This argument is irrelevant to the disposition of these claims, because evidence in
this regard does not relate to the unsubstantiated elements of his underlying retaliation claims.

28
 Appendix A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHARLESWORTH RAE,

Plaintiff,

v. Civil Action No. 15-00736
KBJ/DAR
CHILDREN’S NATIONAL MEDICAL
CENTER, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff was formerly employed by Defendant Children’s National Medical Center

(hereinafter “CNMC”) as a research pharmacist. In this action, Plaintiff, in his First Amended

Complaint, alleges that Defendant CNMC, and individual supervisory and management officials

further identified herein, engaged in discriminatory and retaliatory conduct violative of public

policy; the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq.;

42 U.S.C. § 1981, and Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq.

See generally First Amended Complaint (ECF No. 22-1). Defendants, in response to the First

Amended Complaint, denied the allegations of discrimination and retaliation, and pled seven

affirmative defenses, including the defenses that certain of Plaintiff’s claims are barred by the

applicable statute of limitations and his failure to exhaust his administrative remedies. See

generally Answer and Affirmative Defenses (ECF No. 25). Discovery has closed, and

Defendants Children’s National Medical Center, et al.’s Motion for Summary Judgement (ECF

No. 59) has been fully briefed.
Rae v. Children’s National Medical Center, et al. Appendix A

Upon consideration of the motion and accompanying Memorandum of Law in Support of

Defendants’ Motion for Summary Judgment (ECF No. 59-1) (“Defendants’ Memorandum”);

Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Motion for

Summary Judgment (ECF No. 60) (“Plaintiff’s Opposition”); Defendants’ Reply to Plaintiff’s

Opposition to Defendants’ Motion for Summary Judgment (ECF No. 70) (“Defendants’ Reply”);

Defendants’ statement of material facts as to which there is no genuine issue; Plaintiff’s

statement of genuine issues, and the exhibits filed by the parties in support of and in opposition

to Defendants’ motion, the undersigned recommends that Defendants’ motion be granted with

respect to the remaining claims and Defendants. 1

I. Procedural Background

Plaintiff, proceeding pro se, commenced this action in May 2015 by the filing of a 50-

page complaint in which he named CNMC and a total of seven management officials as

defendants. Plaintiff stated that he was born in Antigua; immigrated to the United States in

1979; earned an undergraduate degree, and later, earned both doctor of pharmacy and juris

doctor degrees. See Complaint (ECF No. 1) ¶¶ 10-11. Plaintiff stated that in February 2010, he

was hired by CNMC as an Investigational Research Pharmacist “pursuant to an ‘at will’

employment contract.” See generally id. at 1. Plaintiff described a series of instances of

perceived irregularities in the pharmacy operations which he brought to the attention of CNMC

1
At various times during the course of the proceedings in this action, Plaintiff represented himself; indeed, it
appears that Plaintiff has been unrepresented in this action since October 19, 2017. See 10/19/2017 Minute Order.
However, Plaintiff was represented by counsel during the course of discovery, and throughout the briefing of
Defendants’ motion for summary judgment. Accordingly, the undersigned’s consideration of Plaintiff’s opposition
to Defendants’ motion does not include the otherwise expansive reading which would be accorded to the
submissions of pro se litigants. See, e.g., Bowe-Connor v. McDonald, Civil Action No. 15-00231, 2016 WL
5675854, at *4, n.2 (D.D.C. Sept. 30, 2016), aff’d and remanded, No. 16-05289, 2017 WL 2373002 (D.C. Cir. Apr.
11, 2017).

2
Rae v. Children’s National Medical Center, et al. Appendix A

management officials throughout 2010. See generally id., ¶¶ 16-31. Plaintiff alleged that in

2011, he applied for, but was denied, a promotion. Id., ¶ 62. Plaintiff further alleged that

continuing through as late as December, 2014, he voiced additional concerns regarding

pharmacy operations, while being subjected to unwarranted criticism and false accusations by

CNMC managers. See id., ¶¶ 63-161. Plaintiff stated that on December 8, 2014, he received a

“Termination of Employment” letter by which he was advised that a decision had been made to

terminate his employment on that date “[a]s a result of the continued pattern of insubordinate and

harassing behavior towards your supervisor[.]” Id., ¶ 162. Plaintiff, in that complaint, stated that

he filed charges of discrimination with the Equal Employment Opportunity Commission, in

which he alleged both discrimination on the basis of his race, age, gender and national origin,

and retaliation “for asserting his legal right in filing [a] report of assault [by an immediate

supervisor, one of the named Defendants] with the Metropolitan Police [Department].” Id., ¶¶

152, 165-169. Plaintiff, in that complaint, alleged “Harassment and Hostile Work Environment”

(“First Count”); “Disparate Treatment” with respect to having been “passed over” for promotion,

“singled out” for disciplinary action and ultimately terminated (Count Two); “reprisal” for

reporting perceived pharmacy operations irregularities and filing a report of assault by his

immediate supervisor (Count Three); assault (Count Four); wrongful termination (Count Five);

defamation (Count Six), and “Negligent Supervision” (Count Seven). Plaintiff named CNMC as

a Defendant; additionally, Plaintiff named as Defendants Kurt Newman, President and Chief

Executive Officer; Sarah Donegan, Investigational Drug Services (“IDS”) Unit Manager; Ursula

Tachie-Menson, Chief of Pharmacy; Zandra Russell, Senior Human Resources Business Partner;

Denise Cooper, Principal Human Resources Consultant for Labor Strategy and Human

3
Rae v. Children’s National Medical Center, et al. Appendix A

Resources Compliance; Wilhelmina DeShazo, Senior Human Resources Business Partner, and

Darryl Varnado, Executive Vice President and Chief People Officer.

By an Order filed on March 25, 2016, the Court (K. Jackson, J.) granted Defendants’

motion to dismiss with respect to Counts One, Four, Six and Seven. Additionally, the Court

granted Defendants’ motion to dismiss any claims under the Age Discrimination in Employment

Act which Plaintiff asserted in the context of Counts Two and Three; and claims in Counts Two

and Three brought under Title VII of the Civil Rights Act of 1964 arising from events that

occurred prior to March 21, 2014, or under the D.C. Human Rights Act arising from events that

occurred prior to February 12, 2014. Order (ECF No. 18) at 1. Finally, the Court granted

Plaintiff’s oral motion for leave to file an amended complaint, and required that in so doing,

Plaintiff “must clarify the law under which each count is being brought and the particular

defendant(s) to which each count pertains.” Id. at 2; see also Transcript of Proceedings at 46

(ECF No. 20).

In the amended complaint filed in accordance with the March 25, 2016 Order, Plaintiff

alleges “Wrongful Termination in Violation of Public Policy Promoting Drug Safety” (Count I);

“Wrongful Termination in Violation of Public Policy Favoring Reports of Illegal Activity to Law

Enforcement” (Count II); “Racially Discriminatory/Retaliatory Discharge in Violation of DC

Human Rights Act” (Count III); “Racially Discriminatory/Retaliatory Discharge in Violation of

42 U.S.C. § 1981” (Count IV); “Discriminatory/Retaliatory Denial of Promotion[,]” also in

violation of 42 U.S.C. § 1981 (Count V); “Racially Discriminatory/Retaliatory Discharge in

violation of Title VII” (Count VI), and “Racially Discriminatory Disparate Treatment in

violation of Title VII” (mistakenly designated Count VI, but hereinafter designated “Count

VII”). First Amended Complaint (ECF No. 22-1). Plaintiff again named CNMC and the same

4
Rae v. Children’s National Medical Center, et al. Appendix A

seven management officials as Defendants; however, in the amended complaint, he indicated that

Counts VI and VII “are only being asserted against Defendant Children’s Nation Medical

Center[,]” but that Counts I through V “[are being asserted] against all named defendants.” Id. at

1, n.1.

The undersigned granted the unopposed motion of Defendants Kirk Newman and

Wilhemina DeShazo for judgment on the pleadings, resulting in the dismissal of Plaintiff’s First

Amended Complaint as to them. 08/01/2017 Minute Order. The undersigned also dismissed

Count V and Count VII of Plaintiff’s First Amended Complaint, and Denise Cooper as a

Defendant, see Plaintiff’s Opposition at 1, n.1, pursuant to Rule 41(a)(2) of the Federal Rules of

Civil Procedure. 03/08/2018 Minute Order.

Thus, the remaining claims are Plaintiff’s claims that he was wrongfully terminated in

violation of public policy (Counts I and II); “Racially Discriminatory/Retaliatory Discharge” in

violation of the D.C. Human Rights Act (Count III); “Racially Discriminatory/Retaliatory

Discharge” in violation of 42 U.S.C. § 1981 (Count IV), and “Racially

Discriminatory/Retaliatory Discharge” in violation of Title VII (Count VI). The remaining

individual Defendants are Sarah Donegan, Ursula Tachie-Menson, Zandra Russell and Darryl

Varnado. 2

II. The Parties’ Contentions
Defendants, in their memorandum of points and authorities in support of their motion,

maintain that given the Court’s ruling that the only claims of discrimination which Plaintiff may

assert must have occurred after February 12, 2014, and that the only adverse employment action

2
Given the dismissal of the two claims and the three individual Defendants addressed in the preceding section, only
the contentions relevant to the remaining claims and Defendants will be further addressed herein.

5
Rae v. Children’s National Medical Center, et al. Appendix A

which remains viable is Plaintiff’s claim regarding the termination of his employment.

Defendants’ Memorandum at 30-31. 3 Defendants submit that they are entitled to summary

judgment in their favor for the following reasons: (1) Plaintiff has no direct evidence of

discrimination or retaliation; (2) Defendant CNMC has documented legitimate,

nondiscriminatory business reasons for its business decisions regarding Plaintiff; (3) Plaintiff has

no evidence that the reasons CNMC offers for the termination of his employment are pretextual;

(4) Plaintiff cannot identify any similarly-situated employee who engaged in misconduct similar

to that in which Plaintiff engaged, but was treated more favorably; (5) with respect to Plaintiff’s

retaliation claims, the protected activities in which Plaintiff claims to have engaged lack close

temporal proximity to Plaintiff’s termination, and (6) Plaintiff cannot identify any public policy

which was violated by his termination, or any evidence that CNMC terminated his employment

because of any protected conduct. Id. at 2. With respect to Plaintiff’s claims that he was

terminated in violation of public policy, Defendants submit, more specifically, that Plaintiff “has

failed to identify any specific public policy that would have been violated[]”; that “[he] cannot

prove any of the alleged complaints he made were the ‘sole cause’ for his termination[,]” and

that “[he] lacks evidence to convince a reasonable jury that his termination was caused by

anything other than his own [in]subordination.” Id. at 37-38. With respect to the individual

Defendants, Defendants broadly submit that Plaintiff has no evidence to support any claims

against any of them. Id.; see also id. at 20, 38-39. 4

3
See infra. n. 5.
4
Defendants submit that “Plaintiff conceded in his deposition that many of [the individual Defendants] were sued
merely because of their position[s][,]” and “also conceded that he has no evidence that any of the Individual
Defendants acted outside the scope of their employment with CNMC.” Id. at 38.

6
Rae v. Children’s National Medical Center, et al. Appendix A

Plaintiff, in his opposition, asserts that summary judgment in favor of Defendants should

be denied “because [he] provided sufficient evidence for a jury to conclude that the reason given

for his termination was false and pretext[ual] and the real reasons were (1) retaliation for

reporting violations of regulations related to patient safety and the safety of drugs dispensed to

the public; (2) retaliation for making a complaint of assault to the Metropolitan Police

Department[,] and (3) retaliation for reporting harassment, hostile work environment and

discrimination.” Plaintiff’s Memorandum of Points and Authorities in Opposition to

Defendants’ Motion for Summary Judgment (“Plaintiff’s Opposition”) (ECF No. 60) at 1-2, 18.5

With respect to the four remaining individual Defendants, Plaintiff submits that “[he] has

established individual liability under Section 1981 because [the four remaining individual

Defendants] . . . all participated in the decision to terminate [him].” Id. at 25-26. More

specifically, Plaintiff submits that the four remaining individual Defendants “retaliated against

[him] by terminating him for insubordination in the face of evidence that he was present at HR at

the appointed time for the meeting on December 3, 2014.” Id. at 26.

Defendants, in their reply to Plaintiff’s opposition, submit that Plaintiff has failed to offer

evidence from which a reasonable trier of fact could find that the reason offered by Defendants

for the termination of Plaintiff’s employment was not the actual reason, and that his employment

was terminated because he filed an Equal Employment Opportunity Commission charge, or

because he made anonymous complaints to regulatory agencies concerning pharmacy practices,

or because he filed a police report against his supervisor. Defendants’ Reply at 1-2. More

specifically, Defendants submit that “Plaintiff’s entire case rests on pure speculation and his

5
Plaintiff thus seemingly concedes, as Defendants submit, that the only viable claims are those which concern the
termination of his employment. Additionally, Plaintiff appears to have withdrawn his contention that the
termination of his employment was discriminatory, and instead, now submits only that the termination of his
employment was retaliatory.

7
Rae v. Children’s National Medical Center, et al. Appendix A

unsupported self-serving affidavit that merely recites the allegation in his Amended Complaint.”

Id.; see also id. at 6 (“Plaintiff’s conclusory and speculative assertions, which are devoid of any

factual content, are nothing more than ‘mere[] allegations’ upon which Plaintiff cannot base his

claims.”) (quoting Fed. R. Civ. P. 56(e)(2)).

III. Applicable Standards

A. Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). An issue is genuine if the “evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Whether a fact is material is determined based on whether it might affect the outcome of the suit

under the governing law. Id. The party seeking summary judgment 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).

“[A] party opposing a properly supported motion for summary judgment may not rest

upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing

that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 256 (internal quotation marks

omitted). “Conclusory allegations without any factual support in the record cannot create a

genuine dispute sufficient to survive summary judgment.” Coates v. Washington Metro. Area

Transit Auth., Civil Action No. 15-02006, 2018 WL 1210861, at *2 (D.D.C. Mar. 8,

2018) (citing Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462,

8
Rae v. Children’s National Medical Center, et al. Appendix A

465-66 (D.C. Cir. 2009)). Moreover, where “a party fails to properly support an assertion of fact

or fails to properly address another party’s assertion of fact,” the district court may, among other

actions, “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).

Additionally, the Local Civil Rules of this Court require that

[e]ach motion for summary judgment shall be accompanied by a
statement of material facts as to which the moving party contends
there is no genuine issue, which shall include references to the
parts of the record relied on to support the statement. An
opposition to such a motion shall be accompanied by a separate
concise statement of genuine issues setting forth all material facts
as to which it is contended there exists a genuine issue necessary to
be litigated, which shall include references to the parts of the
record relied on to support the statement. . . . In determining a
motion for summary judgment, the Court may assume that facts
identified by the moving party in its statement of material facts are
admitted, unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.

LCvR 7(h)(1). “The purpose of this rule is to ‘place[] the burden on the parties and their

counsel, who are most familiar with the litigation and the record, to crystallize for the district

court the material facts and relevant portions of the record.’” Bruder v. Chu, No. 11-1492, 2013

WL 3722334, at *1 (D.D.C. July 17, 2013) (quoting Jackson v. Finnegan, Henderson, Farabow,

Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996)). “Because [LCvR 7(h)] helps the district

court maintain docket control and decide motions for summary judgment efficiently, the D.C.

Circuit has repeatedly upheld district court rulings that hold parties to strict compliance with this

rule.” Lockhart v. Coastal Int’l Sec., Inc., No. 11-02264, 2013 WL 6571605, at *1, n.2 (D.D.C.

Dec. 14, 2013) (internal quotation marks omitted) (quoting Robertson v. Am. Airlines, Inc., 239

F. Supp. 2d 5, 8 (D.D.C.2002)).

When deciding a motion for summary judgment, “[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences” are not the Court’s role;

9
Rae v. Children’s National Medical Center, et al. Appendix A

instead, the evidence must be analyzed in the light most favorable to the non-movant, with all

justifiable inferences drawn in the non-movant’s favor. Liberty Lobby, 477 U.S. at 255; see also

Figueroa v. Tillerson, Civil Action No. 16-00649, 2018 WL 646883, at *4 (D.D.C. Jan. 31,

2018) (“When deciding a motion for summary judgment, the Court must ‘examine the facts in

the record and all reasonable inferences derived therefrom in a light most favorable to’ the

nonmoving party.”) (quoting Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation

omitted)). “If material facts are genuinely in dispute, or undisputed facts are susceptible to

divergent yet justifiable inferences, summary judgment is inappropriate.” Coates, 2018 WL

1210861, at *2 (D.D.C. Mar. 8, 2018) (citing Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009)). Ultimately, the Court must determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52. Put another way, the non-

movant must “do more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If

the evidence is merely colorable, or is not significantly probative, summary judgment may be

granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

B. Wrongful Termination in Violation of Public Policy

Generally, in the District of Columbia, “an employer may discharge an at-will employee

at any time and for any reason, or for no reason at all.”

Harris v. D.C. Water & Sewer Auth., 195 F. Supp. 3d 100, 104 (D.D.C. 2016), appeal

dismissed, Civil Action No. 16-7097, 2018 WL 846615 (D.C. Cir. Jan. 3, 2018) (quoting Adams

v. George W. Cochran & Co., Inc., 597 A.2d 28, 30 (D.C. 1991) (citations omitted)). However,

10
Rae v. Children’s National Medical Center, et al. Appendix A

the District of Columbia Court of Appeals has held that an intentional tort for wrongful discharge

exists “where ‘the sole reason for the discharge is the employee’s refusal to violate the law, as

expressed in a statute or municipal regulation.’” LeFande v. District of Columbia, 864 F. Supp.

2d 44, 50 (D.D.C. 2012) (quoting Adams, 597 A.2d at 34). Later the District of Columbia Court

of Appeals extended this narrow exception to permit courts to recognize additional public policy

exceptions subject to the following qualification: The District of Columbia recognizes a common

law tort of wrongful discharge “as an exception to the traditional at-will doctrine governing

termination of employment, where the discharge violates ‘a clear mandate of public policy.’”

District of Columbia v. Beretta, USA Corp., 872 A.2d 633, 645 (D.C. 2005) (en banc) (quoting

Carl v. Children’s Hosp., 702 A.2d 159, 164 (D.C. 1997)). When asked to apply the exception:

[The] court should consider seriously only those arguments that reflect a clear
mandate of public policy—i.e., those that make a clear showing, based on some
identifiable policy that has been officially declared in a statute or municipal
regulation, or in the Constitution, that a new exception is needed. Furthermore,
there must be a close fit between the policy thus declared and the conduct at issue
in the allegedly wrongful termination.

LeFande, 864 F. Supp. at 50 (quoting Carl, 702 A.2d at 164) (emphasis supplied).

Further, this narrow exception is recognized in this jurisdiction when violation of such

public policy is the “sole reason” for the employee’s termination. Arias v. Marriott Int’l, Inc.,

217 F. Supp. 3d 189, 197 (D.D.C. 2016); see also Battles v. Washington Metro. Area Transit

Auth., 272 F. Supp. 3d 5, 14, n.2 (D.D.C. 2017) (“there is a cause of action for wrongful

termination where an at-will employee acted in furtherance of a public policy and was terminated

solely on the basis of such conduct.” (citation and internal quotation marks omitted).

C. Retaliation

11
Rae v. Children’s National Medical Center, et al. Appendix A

Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to

hire or to discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Where

there is no direct evidence of discrimination, Title VII claims are assessed pursuant to the

burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-03 (1973). Plaintiff has the initial burden of proving by a

preponderance of the evidence a prima facie case of discrimination. To allege a prima facie case

of discrimination, a plaintiff must show that he “is a member of a protected class,” that he

“suffered an adverse employment action,” and that “the unfavorable action gives rise to an

inference of discrimination.” Youssef v. F.B.I., 687 F.3d 397, 401 (D.C. Cir.

2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)).

Once the plaintiff has made out a prima facie case, “the burden shifts to the defendant ‘to

articulate some legitimate, nondiscriminatory reason for the [employment action that is

challenged].’” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting McDonnell

Douglas, 411 U.S. at 802, 93 S. Ct. 1817). Once an employer has proffered a nondiscriminatory

reason, the McDonnell Douglas burden-shifting framework ceases, and the court must then

determine whether the plaintiff has proffered enough evidence to defeat the defendant’s proffer

and support a finding of discrimination. Brady v. Office of the Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008); Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).

At the summary judgment stage, courts may consider plaintiff’s prima facie case,

evidence proffered by the plaintiff to rebut the employer’s explanations for actions taken, and

any additional evidence of discrimination that the plaintiff might proffer. See E.g., Hampton v.

12
Rae v. Children’s National Medical Center, et al. Appendix A

Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012); see also Hamilton v. Geithner, 666 F.3d 1344,

1351 (D.C. Cir. 2012) (noting that, to avoid summary judgment, a plaintiff need not submit

evidence “over and above” that necessary to rebut the employer’s stated reason) (quotation

omitted). A plaintiff’s disagreement with an employer’s explanation cannot alone “satisfy the

burden of showing that a reasonable jury could find that the employer’s asserted reason was not

the actual reason and that the employer intentionally discriminated against the plaintiff on a

prohibited basis.” Burton v. District of Columbia, 153 F. Supp. 3d 13, 58 (D.D.C. 2015).

“Despite Title VII’s range and its design as a comprehensive solution for the problem of

invidious discrimination in employment, the aggrieved individual clearly is not deprived of other

remedies he possesses and is not limited to Title VII in his search for relief.” Johnson v. Ry.

Exp. Agency, Inc., 421 U.S. 454, 459, (1975). Courts analyze Title VII and Section

1981 employment discrimination claims under similar legal standards. “Under either Title

VII or Section 1981, [the plaintiff] must demonstrate by a preponderance of the evidence that the

actions taken by the employer were ‘more likely than not based on the consideration of

impermissible factors’ such as race, ethnicity, or national origin.” Pollard v. Quest

Diagnostics, 610 F. Supp. 2d 1, 18 (D.D.C. 2009) (quoting Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 254 (1981)). Under this standard, the plaintiff may either prove his claim

with direct evidence of discrimination or he may indirectly prove discrimination under the

familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,

(1973). The McDonnell Douglas burden-shifting framework applies to employment

discrimination claims, id.; retaliation claims, Carney v. American Univ., 151 F.3d 1090, 1094

(D.C. Cir. 1998); and claims brought pursuant to Section 1981, Carter v. George Washington

13
Rae v. Children’s National Medical Center, et al. Appendix A

Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Thus, the undersigned will also analyze the Section

1981 claim in tandem with the Title VII claim.

When it comes to prohibiting discrimination and retaliation, the D.C. Human Rights Act

“uses almost precisely the same language” as Title VII. Thomas v. District of Columbia, 209 F.

Supp. 3d 200, 204 (D.D.C. 2016). Hence, “[w]hen presented with a suit alleging violations of

each law, courts generally evaluate the claims under Title VII jurisprudence.” Id.; see also

Carpenter v. Fed. Nat’l Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999) (noting that District of

Columbia courts follow the burden-shifting test applicable to Title VII claims when evaluating

DCHRA claims and “seem[] ready to accept the federal constructions of Title VII, given the

substantial similarity between it and the [DCHRA]”).

Accordingly, the undersigned applies the Title VII standards to the consideration of

Plaintiff’s Section 1981 and D.C. Human Rights Act claims.

IV. Discussion

A. Alleged Termination of Employment in Violation of Public Policy

As the undersigned discusses in greater detail in Section B., infra, Defendants proffer that

the reason for the termination of Plaintiff’s employment was a legitimate, non-discriminatory,

reason, i.e., Plaintiff’s “clear pattern of combative and insubordinate behavior toward his direct

supervisor[.]” Defendants’ Memorandum at 1; see also id. at 10-18 (Defendants’ Statement of

Undisputed Facts); 25-27. As evidence of such legitimate, nondiscriminatory reason, Defendants

offer a total of 25 exhibits. See Defendants’ Statement of Material Facts at 10-18; Exhibits (ECF

Nos. 59-15, 59-16, 59-17, 59-18, 59-19, 59-20, 59-21, 59-22, 59-23, 59-24, 59-25, 59-26, 59-27,

59-28, 59-29, 59-30, 59-31, 59-32, 59-33, 59-34, 59-35, 59-36, 59-37, 59-38, 59-39). The

14
Rae v. Children’s National Medical Center, et al. Appendix A

exhibits primarily consist of email and other exchanges – some of which were authored by

Plaintiff himself – concerning the perceptions of Plaintiff’s conduct. E.g., Exhibit 13 (ECF No

59-15) (email from Plaintiff requesting a meeting with a Human Resources representative “re Dr.

Donegan’s claim the ‘she feels she is being bullied’ by me whenever we interact”); Exhibit 14

(ECF No. 59-16) (including Plaintiff’s acknowledgment that “I placed my pen on a prescription

label that [Dr. Donegan] was holding in her hand[]”); Exhibit 19 (ECF No. 59-21) (Dr.

Donegan’s letter to Plaintiff, six months prior to the termination of his employment, noting, inter

alia, that “it is expected that you comply with my instructions and be courteous and professional

when dealing with me and your coworkers[,]” and that “your continued refusal to follow my

direction could also be perceived as insubordinate, which is a violation of our Corrective Action

Procedure.”); Exhibit 27 (ECF No. 59-29) at 3 (directive of Dr. Donegan to Plaintiff that he

refrain, as she previously directed, from including his personal email when engaging in CNMC-

related communications).

Before a court can reach the issue of whether an individual whose at-will employment

was terminated has offered evidence from which a reasonable trier of fact could find that such

termination was in violation of public policy – and that the allegedly protected conduct was the

“sole reason” for the termination – the individual first must “point to some identifiable policy

that has been officially declared in a statute or municipal regulation, or in the Constitution[.]”

Clay v. Howard University, 128 F. Supp. 3d 22, 28 (D.D.C. 2015) (the “common denominator”

in viable wrongful termination claims is the existence of specific laws or regulations that clearly

reflect a policy prohibiting the activity about which the employee complained, whether or not the

employer actually violated the law or regulation.”) (citation and internal quotation marks

omitted) (emphasis supplied).

15
Rae v. Children’s National Medical Center, et al. Appendix A

However, as Defendants aptly observe, see, e.g., Defendants’ Memorandum at 37,

Plaintiff has failed to offer evidence of any “identifiable policy” allegedly violated. Rather,

Plaintiff cites five District of Columbia Code provisions, three District of Columbia Municipal

Regulations, a United States Code provision, and two Code of Federal Regulations provisions in

support of his assertion that (1) “Public policy in the District of Columbia promotes patient

safety and the safety of drugs dispensed to the public[,]” and “Public policy of the District of

Columbia promotes the rights of its citizens to seek assistance of law enforcement through the

filing of police reports.” Plaintiff’s Opposition at 3 (Plaintiff’s Statement of Genuine Issues), ¶¶

11, 34; see also id. at 19-21, 27. As Plaintiff offers no exhibits to support these assertions, the

undersigned has undertaken a review of each of the 11 provisions. Having done so, the

undersigned finds that none of them – read individually or in combination with others – declares

any “identifiable policy” on which a claim of wrongful termination in violation of public policy

could be predicated. Cf. Omwenga v. United Nations Foundation, 244 F.Supp.3d 214, 221

(D.D.C. 2017) (finding that the municipal regulations cited by the Plaintiff reflect the public
6
policy alleged).

Given this finding, the undersigned concludes that no further inquiry with respect to

whether a reasonable trier of fact could conclude that Plaintiff was terminated in violation of

public policy is warranted. However, assuming, arguendo, the existence of an “identifiable

6
Here, Plaintiff cites a District of Columbia Municipal Regulation pertaining to the supervision of the practice of
pharmacy (D.C. Mun. Regs. tit. 17, § 6508); two District of Columbia Municipal Regulations and a United States
Code provision pertaining to recordkeeping of pharmacy records (D.C. Mun. Regs. subt. 22-B, § 1913, D.C. Mun.
Regs. subt. 22-B, § 1914 and Food, Drug, and Cosmetic Act, § 505(i), as amended, 21 U.S.C. § 355(i)); a District of
Columbia Code provision pertaining to disciplinary actions in the context of pharmacy licensure (D.C. Code Ann. §
3-1205.14); two Code of Federal Regulations pertaining to investigational drug studies (21 C.F.R. 312.1, et seq and
42 C.F.R. 93.100, et seq.), and four District of Columbia Code provisions pertaining generally to assaults and
victim’s rights (D.C. Code Ann. § 1-301.191, D.C. Code Ann. § 23-1901, D.C. Code Ann. § 22-403 and D.C. Code
Ann. § 22-404).

16
Rae v. Children’s National Medical Center, et al. Appendix A

policy” on which Plaintiff can base his claim, the undersigned further finds that Plaintiff has

offered no evidence that his protected conducted was the “sole reason[.]” Hewitt v. Chugach

Gov’t Servs., Inc., Civil Action No. 16-02192, 2016 WL 7076987, at *2 (D.D.C. Dec. 5, 2016).

Instead, Plaintiff offers only his bare speculation that his protected conduct was the reason for

the termination. See, e.g., Plaintiff’s Opposition at 20 (“Defendants’ reason for Plaintiff’s

termination is suspect because Defendants did not follow the Employee Handbook guidelines on

termination and ignored Plaintiff’s claim that he came to the meeting . . . as requested.”). Such

speculation is insufficient to survive a motion for summary judgment. E.g. Nunnally v. District

of Columbia, 243 F. Supp. 3d 55, 68-69 (D.D.C. 2017) (observing that “a plaintiff’s mere

speculations are insufficient to create a genuine issue of fact regarding an employer's articulated

reasons for its decisions and avoid summary judgment.”) (citation omitted). 7

B. Alleged Retaliation in Violation of Title VII, Section 1981 and the D.C. Human Rights
Act

Plaintiff, in his opposition to Defendants’ motion for summary judgment, maintains that

Defendants’ motion should be denied “because [he] provided sufficient evidence for a jury to

conclude that the reason given for his termination was false and pretext[ual] and the real reasons

were (1) retaliation for reporting violations of regulations related to patient safety and the safety

of drugs dispensed to the public; (2) retaliation for making a complaint of assault to the
7
Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999), on which Plaintiff relies, see Plaintiff’s Opposition
at 20, is distinguishable. In Liberatore, as here, the plaintiff challenged the termination of his employment on the
ground that his employer violated public policy in doing so. A panel of the District of Columbia Circuit reversed the
District Court’s grant of summary judgment in favor of the employer, finding that the challenged conduct
“implicate[d] the public policy underlying the legal proscriptions on the storage and handling of drugs.” 168 F.3d.
at 1331. However, this is not the public policy on which Plaintiff, in this action, bases his claims. See Plaintiff’s
Opposition at 3 (“Public policy in the District of Columbia promotes patient safety and the safety of drugs dispensed
to the public.”); id. at 8 (“Public policy of the District of Columbia promotes the rights of its citizens to seek
assistance of law enforcement through the filing of police reports.”).

17
Rae v. Children’s National Medical Center, et al. Appendix A

Metropolitan Police Department; and (3) retaliation for reporting harassment, hostile work

environment and discrimination.” Plaintiff’s Opposition at 1-2. The undersigned finds,

however, that Plaintiff – his assertion to the contrary notwithstanding – has not offered

“sufficient evidence” from which a reasonable trier of fact could find in his favor; indeed, he has

offered no evidence that the proffered reason for the termination of his employment was false, or

was a pretext for retaliation.

As noted in Section A, supra, Defendants offer evidence in support of their proffer of a

legitimate, non-discriminatory reason for the termination of Plaintiff’s employment. 8 Thus,

Plaintiff must proffer evidence “to show that ‘the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimination.’” Gilliard v. Gruenberg, Civil

Action No. 16-02007, 2018 WL 1471949, at *4 (D.D.C. Mar. 26, 2018) (quoting George v.

Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005)); see also Brady, 520 F.3d at 494, Woodruff, 482

F.3d at 530. However, Plaintiff, in his “Statement of Genuine Issues[,]” fails to identify a single

“material fact[] as to which it is contended there exists a genuine issue necessary to be litigated,”

see LCvR 7(h), and instead, merely recounts the chronology of events during the course of his

employment at CNMC; his concerns regarding patient safety and the safety of drugs dispensed to

the public; his complaints regarding harassment, hostile work environment and discrimination,

and his denial of having been insubordinate. See Plaintiff’s Opposition at 2-18. However, “the

Court can neither credit [any assertions], nor conclude that they controvert defendant’s factual

assertions.” Barot v. Embassy of Republic of Zambia, Civil Action No. 13-00451, 2018 WL

8
With respect to Plaintiff’s retaliation claim, Defendants offer, in addition, evidence that at the time Plaintiff’s
employment was terminated, no one was aware that Plaintiff had made any reports of violations of regulations
related to patient safety and the safety of drugs, or that he had reported harassment, hostile work environment and
discrimination. See Defendants’ Statement of Material Facts at 10-18, Defendants’ Exhibit 38 (ECF No. 59-40), D.
Cooper Affidavit (ECF No. 59-47) at ¶ 14; Z. Russell Affidavit (ECF No. 59-48) at ¶ 17.

18
Rae v. Children’s National Medical Center, et al. Appendix A

1210862, at *5, n.8 (D.D.C. Mar. 8, 2018) (citing LCvR 7(h)); see also Mack v. Georgetown

Univ., Civil Action No. 15-00793, 2017 WL 4325596, at *2 (D.D.C. Aug. 4, 2017), report and

recommendation adopted, 2017 WL 4325617 (D.D.C. Sept. 27, 2017) (“a district court should

not be forced to comb through the factual record to ferret out disputes of material fact[]”).)

(citation omitted).

Nonetheless, the undersigned has reviewed each of the exhibits Plaintiff filed in an effort

to determine whether any exhibit, or combination of exhibits, serves as evidence of a genuine

issue regarding a fact material to Plaintiff’s retaliation claims. Having done so, the undersigned

answers the inquiry in the negative. 9 Rather, the exhibits fairly may be characterized as

documentation of Plaintiff’s narrative concerning the interactions among him, his supervisor and

other managers. See, e.g., Plaintiff’s Exhibit 15 (ECF No. 60-16) (Plaintiff’s “Report of Contact

re Public ridicule and embarrassment by immediate supervisor[]”). 10

C. Individual Defendants

9
By way of illustration, the undersigned notes that Plaintiff’s exhibits include his own declaration, which can be
accorded little weight in any event. See Berry v. Coastal Int’l Sec., Inc., Civil Action No. 12-01420, 2016 WL
1060196, at *3, n.3 (D.D.C. Mar. 15, 2016), aff'd, Civil Action No. 16-7043, 2016 WL 4434664 (D.C. Cir. Aug. 22,
2016). In the declaration, Plaintiff states, inter alia, that “[t]he letter of termination. . . states that I received repeated
counseling by numerous employees; however, in her deposition, Dr. Donegan said she did not know of any
employee who counseled me other than herself and Denise Cooper.” Plaintiff’s Exhibit 1 (Declaration of Plaintiff
Charlesworth Rae) (ECF No. 60-2), ¶ 42. The undersigned finds that whether Plaintiff was counseled by
“numerous” employees or by only two employees is not a fact which is material. See Am. Civil Constr., LLC v. Fort
Myer Constr. Corp., Civil Action No. 15-00515, 2018 WL 953328, at *3 (D.D.C. Feb. 20, 2018) (“‘Material’ facts
are those capable of affecting the substantive outcome of the litigation[.]”) (citing Liberty Lobby, Inc., 477 U.S. at
248 (1986)).
10
The undersigned’s review of the exhibits offered by Plaintiff included consideration of Plaintiff’s Exhibit 7,
Plaintiff’s Amended Response to Interrogatories [Propounded by] Defendant Children’s National Medical Center,
see ECF No. 60-8, which was the subject of Defendants’ Motion to Strike (ECF No. 64). Because the amended
interrogatory response cannot reasonably be construed as evidence sufficient to create a genuine issue for trial, the
undersigned has no occasion to reconsider the order denying the motion to strike without prejudice. See 03/02/2018
Minute Order.

19
Rae v. Children’s National Medical Center, et al. Appendix A

As Plaintiff has failed to offer evidence from which a reasonable trier of fact could find in

his favor regarding his claims of termination in violation of public policy, or his claims of

retaliation, no discussion of Plaintiff’s purported claims against the four remaining individual

Defendants is necessary: any claim against any one of them must be predicated upon one or more

of the causes of action which Plaintiff pled, none of which can survive summary judgment.

Plaintiff’s theory of liability with respect to the four remaining individual Defendants is that they

“were personally involved in the [retaliatory] activity–Plaintiff’s termination.” Plaintiff’s

Opposition at 25. Assuming, without deciding, that all four remaining individual Defendants

“were personally involved” in the decision to terminate Plaintiff’s employment, such

involvement does not create a cause of action against them. 11

V. Conclusion

Defendants have offered legitimate, non-retaliatory and non-discriminatory reasons for

the decision to terminate Plaintiff’s employment. Plaintiff has failed to offer evidence that the

actions challenged were violative of public policy. Likewise, Plaintiff has failed to offer

evidence which could lead a reasonable trier of fact to discredit the proffered legitimate, non-

retaliatory, non-discriminatory reasons; to find that the proffered reasons were pretextual, or to

11
The undersigned finds that Plaintiff’s reliance on Telesford v. Maryland Provo-I Med. Servs., P.C., 204 F. Supp.
3d 120, 131 (D.D.C. 2016), see Plaintiff’s Opposition at 25-26, is misplaced. In Telesford, the Court stated the
settled proposition that “there can be no individual liability” under Title VII against the individual defendants. 204
F. Supp. 3d at 131 (citation omitted). The Court reached the opposite conclusion with respect to the individual
defendants in the context of the plaintiff’s Section 1981 claims. However, that conclusion was based upon a finding
that the plaintiff had offered evidence giving rise to a viable Section 1981 claim, see id. at 132; in the instant action,
the undersigned has determined that Plaintiff failed to do so.

20
Rae v. Children’s National Medical Center, et al. Appendix A

find that retaliation against him was the true reason for the termination of his employment.

It is therefore, this 28th day of March, 2018,

RECOMMENDED that Defendants Children’s National Medical Center, et al.’s Motion

for Summary Judgment (ECF No. 59) be GRANTED with respect to the remaining claims and

Defendants. 12

/s/ .
DEBORAH A. ROBINSON
United States Magistrate Judge

Within fourteen days, any party may file written objections to this report and
recommendation. The objections shall specifically identify the portions of the findings and
recommendations to which objection is made and the basis of each objection. In the
absence of timely objections, further review of issues addressed may be deemed waived.

12
See supra n.2.

21