UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THOMAS M. FRANCIS, JR.,

Plaintiff, v. Civil Action No. 07-1473 (JDB) DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Thomas Francis, a former employee of the District of Columbia Office of Property

Management ("OPM"), brings this action for reverse discrimination pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, et seq., and for retaliation pursuant to the

District of Columbia Human Rights Act ("DCHRA"),

, et seq. He

alleges that, as a white male in a predominantly African American agency, he suffered reverse

discrimination when the District terminated his employment in 2003. He further alleges that,

after he filed an EEO charge, the District retaliated against him in 2007 when he sought

reemployment with the District but was not selected for two positions. Before the Court is the

District's motion for summary judgment on both counts. Upon careful consideration of the

parties' memoranda, the applicable law, and the entire record herein, and for the reasons set forth

below, the Court will grant the District's motion.1

1 For ease of reference, the Court will refer to defendants' memorandum in support of motion for summary judgment and defendants' reply as "Defs.' Mem." and "Defs.' Reply," respectively, and to plaintiff's opposition to defendant's motion for summary judgment as "Pl.'s Mem." The Court will refer to exhibits attached to the parties' motions as "Defs.' Ex." and Pl.'s Ex." Where both parties have submitted an exhibit, the Court will cite only one. BACKGROUND

Francis began working for OPM in 1999 as head of the Protective Services Division -- a

Grade 14 position. See Pl.'s Ex. 2 at 25 ("Francis Dep."). In that role, he supervised District and

contract law enforcement officers and security guards, and oversaw the facilities and policies

pertinent to security.

In 2000, his job was converted to an at-will Management Supervisory

Service ("MSS") position. See Defs.' Ex. 2 ("MSS Offer and Acceptance"). And in 2002, the

position was reclassified from Grade 14 to Grade 15. See Defs.' Ex. 3 ("Request for Personnel

Action").

Around July or August of 2002, Deputy Mayor Herb Tillery, an African American,

appointed Marceline Alexander, also an African American, as Chief of Staff of OPM. See Pl.'s

Ex. 7 at 21, 22, 29-35 ("Alexander Dep."); Francis Dep. at 90. At the time, the "perception of the

department as a whole was very, very bad." Alexander Dep. at 82. Councilmember Jim Graham

was conducting oversight hearings into allegations surrounding OPM's activities. See

.

The Director of OPM, Tim Diamond, and the Deputy Director, Michael Lorusso, were suspected

of criminal activity. See

. Both eventually left the agency over these events, and Lorusso

pleaded guilty to criminal charges for actions taken at OPM. See

.2 After Diamond

and Lorusso's departures, Alexander became Acting Director of OPM. See

.

On July 14, 2003, Alexander gave Francis notice that his employment was being

terminated effective July 29, 2003. See Defs.' Ex. 6 ("Termination Letter"). The termination was

without cause pursuant to his at-will status. See id.; Francis Dep. at 151. Although Alexander

gave no reason for Francis's termination at the time, she stated in her deposition that she believed

2 The Court takes judicial notice of Lorusso's criminal conviction in United States v. Lorusso, No. 04-CR-00454 (D.D.C. Jan. 29, 2009) (Urbina) (ECF Doc. No. 56, Judgment).

2 that the office needed to be "reengineered" in order to restore confidence in it. Alexander Dep. at

82, 84-85. She further stated that she made the decision to terminate Francis after hearing

numerous allegations about alleged improprieties in which he was involved. See

. There

were, in her words, "too many smoking guns" around him.

. These allegations included

improper involvement with a contract, failure to report stolen guns, improperly removing guns

without signing them out, outfitting personal vehicles with equipment, and taking government

vehicles home. See

.

After Francis's termination, his position was advertised at the Grade 15 level. See Defs.'

Ex. 7 ("PSM First Vacancy Announcement"). When the search generated few candidates, the

position was re-advertised at the Grade 14 level, with the agency stating it was interested in a

larger pool of applicants. See Defs.' Ex. 9 ("PSM Second Vacancy Announcement"); Defs.' Ex. 8

("PSM First Selection Certificate"). On or around December 15, 2003, Plez Jenkins, an African

American, was hired from this new pool of applicants. See Defs.' Ex. 11 ("Second Selection

Certificate"); Pl.'s First Am. Compl. at ¶ 20. Carol Mitten, a white woman, was the hiring

official. See Pl.'s Ex. 9 at 18-19 ("Mitten Dep."). Alexander had left OPM on December 3 or 4,

2003, almost five months after terminating Francis, and was not involved in the decision to hire

Jenkins. See Alexander Dep. at 101.

Francis then, for the first time, became suspicious that the District had terminated him

with an "agenda" to replace him with an African American. Francis Dep. at 149. On May 20,

2004, he filed a discrimination charge with the EEOC. Defs.' Ex. 13 ("Charge of

Discrimination"). Sixteen months later, on September 15, 2005, the EEOC issued a two-page

determination summarily concluding that there was cause to believe Francis was terminated

based on race. Defs.' Ex. 14 ("EEOC Determination").

3 In February 2007, over a year after issuance of the EEOC Determination, Francis applied

for the position of Risk Management Coordinator (job reference #5881) with OPM. See Defs.'

Ex. 17 ("#5881 Vacancy Announcement"); Defs.' Ex. 18 ("#5881 Selection Certificate").

Although Francis was ranked well qualified for the position, he was not selected for the job.

See #5881 Selection Certificate. Instead, Sonya Williams, an internal candidate who was also

considered well qualified, was chosen on April 20, 2007.

A few months later, in September 2007, Francis applied for another job with the District:

Management Analysis Officer (job reference #7779) with the Office of Risk Management. See

Defs.' Ex. 16 ("Francis Resume/Application for #7779"); Defs.' Ex. 22 ("#7779 Selection

Certificate"). Francis was considered qualified for the position (see #7779 Selection Certificate),

but he was not selected for that job either. Instead, Gail Allen, a qualified candidate with

substantial insurance management experience, was selected on October 5, 2007. See id.; Defs.'

Ex. 23 ("Allen Application").

Francis filed this suit on August 15, 2007, asserting claims under Title VII and the D.C.

Human Rights Act based on his termination and defendant's subsequent actions allegedly

damaging his professional reputation. Compl., Counts I-VI. On September 28, 2007, Francis

sent notice pursuant to

of his intent to sue the District of Columbia under the

D.C. Human Rights Act for discrimination with respect to his termination and for retaliation with

respect to the non-selection decisions. See Defs.' Ex. 25 ("Notice Letter"). Thereafter, on

October 22, 2007, he filed his First Amended Complaint refining his discrimination claim (Count

I), deleting the earlier retaliation claims concerning his professional reputation, and adding a

retaliation claim under the D.C. Human Rights Act based on the non-selections (Count II).

4 STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Crop. v. Catrett,

(1986). The moving party may successfully support its

motion by identifying those portions of "the pleadings, the discovery and disclosure materials on

file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material

fact. Fed. R. Civ. P. 56(c); see also Celotex,

.

In determining whether there exists a genuine issue of material fact sufficient to preclude

summary judgment, the Court must regard the non-movant's statements as true and accept all

evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,

Inc.,

(1986). A non-moving party, however, must establish more than the

"mere existence of a scintilla of evidence" in support of its position.

. Thus, the non-

moving party cannot rely on mere speculation to defeat a motion for summary judgment. See

Hutchinson v. Cent. Intelligence Agency,

(D.C. Cir. 2005). Nor can the non-

moving party rely on hearsay statements or conclusory statements with no evidentiary basis to

establish a genuine issue of material fact. See Assoc. of Flight Attendants v. Dep't of Transp.,

(D.C. Cir. 2009). "If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted." Anderson,

(citations

omitted). Moreover, a moving party may succeed on summary judgment by pointing to the

absence of evidence proffered by the non-moving party. See Celotex,

; see also

Anderson,

.

5 ANALYSIS

I. Dismissal of OPM from the Action

"[B]odies within the District of Columbia government are not suable as separate entities"

unless statutory authority exists to the contrary. Braxton v. Nat'l Capital Housing Auth.,

(D.C. 1978) (citations omitted). Sections 10-1001 through 10-1015 of the D.C.

Code establish the duties and powers of the Office of Property Management. None of those

provisions grants OPM the authority to sue and be sued. OPM is therefore non sui juris.

Accordingly, the Court dismisses OPM from this action, leaving the District as the sole

defendant.

II. The Title VII Discrimination Claim

A. Timeliness of the Title VII Charge of Discrimination

The District argues that Francis's Title VII discrimination claim should be dismissed as

untimely because he filed his EEO charge on May 20, 2004, after the applicable limitations

period had expired. See Defs.' Mem. at 18. Francis responds that his charge was timely, because

the limitations period accrued from the time he had a reasonable suspicion of the alleged injury.

See Pl.'s Mem. at 14-15.

With respect to a Title VII claim for employment discrimination, a plaintiff must file an

administrative complaint with the EEOC "within one hundred and eighty days after the alleged

unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). However, if the plaintiff

"initially instituted proceedings with a State or local agency with authority to grant or seek relief

from such practice," then the deadline becomes "three hundred days after the alleged unlawful

employment practice occurred." Id. Moreover, "where a worksharing agreement exists between

the EEOC and a local fair employment practices agency," employees have up to 300 days to file

6 pursuant to

(a)(4)(ii)(A); Carter v. George Washington Univ.,

(D.C. Cir. 2004) (rejecting employer's contention that a 180-day limitations period applied to

plaintiff who had first filed her charge with the EEOC in light of a worksharing agreement with

the relevant local agency, and holding that "[s]ince the EEOC had such [a worksharing]

agreement with the D.C. Office of Human Rights . . . [plaintiff] had up to 300 days to file [the

charge].")

The EEOC and the D.C. Office of Human Rights had a worksharing agreement in effect

at the time Francis filed his charge with the EEOC on May 20, 2004, and the EEOC notified the

D.C. Office of Human Rights that, pursuant to that agreement, the charge would be initially

investigated by the EEOC. See Charge of Discrimination at 1-2. Accordingly, pursuant to 42

U.S.C. § 2000e-5(e)(1) and

(a)(4)(ii)(A), the applicable limitations period in

this case is 300 days. See Carter,

.

The District contends that, even applying the longer period, Francis's EEO charge still is

untimely because the 300 calendar days expired on May 9, 2004 -- before his May 20, 2004 EEO

charge was filed.3 However, the general accrual rule for remedial civil actions in this circuit is

the "discovery of injury" rule. Commc'ns Vending Corp. of Ariz., Inc. v. FCC,

,

1074 (D.C. Cir. 2004). "Under that rule, a cause of action accrues either when a readily

discoverable injury occurs or, if an injury is not readily discoverable, when the plaintiff should

3 Francis was notified on July 14, 2003 that he would be terminated effective July 29, 2003. The Court calculates the limitations period from the date Francis received the letter of termination, not the date the termination became effective, because the period runs "when the plaintiff is given unequivocal notice of the termination decision, even if one of the effects of the decision -- the eventual loss of the employee's position -- does not occur until later." Powell v. Am. Red Cross,

(D.D.C. 2007) (citing Del. State Coll. v. Ricks,

(1980)).

7 have discovered it."

(citing MCI Telecomms. Corp. v. FCC,

(D.C. Cir.

1995)). Accordingly, the time for calculating the limitations period runs from the time a Title

VII plaintiff develops "a reasonable suspicion of the alleged harm." Johnson v. Holder,

(D.D.C. 2009), aff'd,

(D.C. Cir. 2010).

Francis argues that he had no reason to suspect his termination was discriminatory until

he learned that the position he held had been downgraded to the Grade 14 level and offered to

Plez Jenkins, allegedly a less qualified African American. See Pl.'s Mem. at 12. Drawing all

reasonable inferences in Francis's favor, a reasonable jury could find that there was no basis for

Francis to reasonably suspect discrimination until that occurred, since, according to both Francis

and Alexander, there were no indicia of discrimination at the time he was terminated in July

2003. See Pl.'s Mem. at 7 (citing Francis Decl. ¶ 13 and Francis Dep. at 149); see also Alexander

Dep. at 98; Termination Letter (stating Francis was terminated without cause pursuant to his at-

will status). Thus, calculating the 300-day limitations period from November 7, 2003, when the

downgraded position was first publicly advertised, see Second Vacancy Announcement at 1, the

period did not expire until September 2, 2004, well after Francis filed his charge.

B. Merits of the Discrimination Charge

In assessing Francis's Title VII discrimination claim, the Court applies the familiar

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

, 802-

07 (1973). Under this framework, a plaintiff must first establish a prima facie case of

discrimination by a preponderance of the evidence.

A plaintiff "makes out a prima facie case

of disparate-treatment discrimination by establishing that: (1) she is a member of a protected

class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to

an inference of discrimination." Mastro v. Potomac Elec. Power Co.,

(D.C.

8 Cir. 2006) (quoting George v. Leavitt,

(D.C. Cir. 2005)). In a reverse

discrimination suit, the plaintiff must also show "additional background circumstances that

support the suspicion that the defendant is that unusual employer who discriminates against the

majority."

at 851 (quoting Parker v. Balt. & Ohio R.R.,

(D.C. Cir.

1981)).

Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to

articulate a legitimate, non-discriminatory explanation for its actions. See Smith v. Dist. of

Columbia,

(D.C. Cir. 2005). In asserting a legitimate, non-discriminatory

explanation, an employer "need not persuade the court that it was actually motivated by the

proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine,

(1981) (citations omitted).

If a defendant offers a legitimate, non-discriminatory reason for its actions "the district

court need not -- and should not -- decide whether the plaintiff actually made out a prima facie

case under McDonnell Douglas." Brady v. Office of Sergeant at Arms,

(D.C.

Cir. 2008) (emphasis in original). Rather, the sole inquiry becomes "whether the plaintiff

produced sufficient evidence for a reasonable jury to find that the employer's asserted non-

discriminatory reason was not the actual reason and that the employer intentionally discriminated

against the plaintiff on a prohibited basis." Adeyemi v. Dist. of Columbia,

(D.C. Cir. 2008). "Whether judgment as a matter of law is appropriate in any particular case will

depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the

probative value of the proof that the employer's explanation is false, and any other evidence that

supports the employer's case and that properly may be considered on a motion for judgment as a

9 matter of law." Reeves v. Sanderson Plumbing Prods., Inc.,

(2000); accord

Aka v. Washington Hosp. Ctr.,

(D.C. Cir. 1998) (en banc); see also

Waterhouse v. District of Columbia,

(D.C. Cir. 2002).

In other words, the McDonnell Douglas shifting burdens framework effectively

evaporates, and the only question is "the ultimate factual issue in the case -- discrimination vel

non." Jones v. Bernanke,

(D.C. Cir. 2009) (citation omitted). "[T]o survive

summary judgment the plaintiff must show that a reasonable jury could conclude from all of the

evidence that the adverse employment decision was made for a discriminatory reason." Lathram

v. Snow,

, 1088 (D.C. Cir. 2003); see Reeves,

.

Under the circumstances of this case, the Court will assume without deciding that Francis

has established a prima facie case of discrimination. This is because two of the prima facie

elements -- whether there are "background circumstances" that show the District discriminates

against whites and whether the evidence supports an inference of discrimination -- are

inextricably intertwined with the ultimate question of discrimination vel non on the entire record.

In other words, the assessment of the prima facie case and the question whether a reasonable jury

could find discrimination in light of the employer's proffered non-discriminatory reason are the

same. See Defs.' Mem. at 21-25 (making the same arguments concerning Francis's alleged

failure to establish a prima facie case, the proffered legitimate non-discriminatory reason for

termination, and discrimination vel non). Hence, the Court is to "focus on the key question of

discrimination without slogging through the McDonnell Douglas prima facie factors." See

Adeyemi,

. The Court therefore moves to the second step of the McDonnell

Douglas framework.

The District has proffered a legitimate, non-discriminatory reason for terminating Francis

10 -- that he was terminated based on the "allegations and investigations into misconduct and

improprieties by the plaintiff, which were compounded by the surrounding investigation into

OPM by Councilmember Graham and the FBI." Defs.' Mem. at 25. Accordingly, the Court

looks to the totality of the evidence in the record to determine whether a reasonable jury could

conclude, instead, that the District terminated Francis because of his race. This examination

takes place, of course, in the context of termination of an at-will employee subject to removal

without cause.

The District offers specific evidence supporting its claim that Francis was terminated due

to the cloud of allegations surrounding him. Marceline Alexander was primarily responsible for

initiating Francis's termination. See Alexander Dep. at 50. She consulted with Deputy Mayor

Tillery and Judy Banks, the Interim Director of Personnel, in effectuating the termination. See

Pl.'s Ex. 4 at ¶ 2 ("Defs.' Supp. Resp. to Pl.'s First Set of Interrogatories"). Although Alexander

gave Francis no reasons for her decision at the time, she described the underlying reasons at her

deposition.

When she entered OPM as Chief of Staff, Councilmember Graham was conducting

oversight hearings into allegations surrounding the office, and "the perception of the department

as a whole was very, very bad." Alexander Dep. at 82. In particular, Director Tim Diamond and

Deputy Director Michael Lorusso were suspected of criminal activity. See

Lorusso in fact

later pleaded guilty to criminal offenses relating to OPM. See id. at 57. Diamond departed over

the allegations. See id. at 58. The Chief Procurement Officer, similarly, resigned over issues

involving OPM's use of credit cards. See id. at 61. Alexander stated that, as Acting Director of

OPM, she believed that, in light of those circumstances, "the only way that the administration

was going to be able to restore confidence was for the office to be reengineered." Id. at 84.

11 She terminated Francis without cause on the grounds that he was at-will and it was the

"most expeditious way." Id. at 98. But she elaborated that she reached her decision because

there were "too many smoking guns" around him. Id. at 86. In particular, she heard allegations

about him that included improper involvement with a contract, failure to report stolen guns,

improperly removing guns without signing them out, outfitting personal vehicles with equipment,

and taking government vehicles home. See id. at 60-62.4

Benita Anderson of Human Resources corroborated the existence of these rumors. For

example, when asked at deposition if she was surprised that Francis was fired, she said she was

not because of the "[p]erceptions of Mr. Francis" and "things that people said that he was doing."

See Pl.'s Ex. 8 at 36-37 ("Anderson Dep."). She said, "I heard enough that people had said about

him. . . . Rumors like he was buying things with OPM money and taking them home." Id.

Moreover, she stated, "I wasn't the only one hearing those rumors, and the director knew what

was going on." Id. at 39. Similarly, an employee who worked under Francis, Teala Brewer,

offered deposition testimony that there was a reasonable factual basis for believing several of the

incidents in fact occurred. See Defs.' Ex. 27 ("Brewer Dep."). For example, she offered

evidence that Francis took weapons home (id. at 21); described instances where she believed he

used funds inappropriately (id. at 40-47); claimed he took government vehicles home (id. at 58);

and gave examples where he mischaracterized his position to salespeople (id. at 79-85).

4 The District also refers to allegations that Francis made misrepresentations on his resume. See Defs.' Mem. at 7-8; see also Anderson Dep. at 36 (stating that she heard "[r]umors like his resume wasn't all fact"). Although Francis does not directly dispute this rumor, Alexander offers inconsistent testimony as to whether she learned of this allegation prior to or after terminating Francis. See Alexander Dep. at 46-47. This matter is not material to whether summary judgment is appropriate, and therefore the Court need not resolve it.

12 Despite the substantial evidence supporting the District's justification, Francis contends

that the justification is mere pretext disguising racial discrimination. A plaintiff may establish

pretext "directly by persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer's proffered explanation is unworthy of

credence." Tex. Dep't of Cmty. Affairs,

(citation omitted). But it is not enough

to "show that a reason given for a job action is not just, or fair, or sensible. He must show that

the explanation given is a phony reason." Fischbach v. Dist. of Columbia Dep't of Corrections,

(D.C. Cir. 1996) (citation omitted). "[T]he issue is not 'the correctness or

desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the

reasons it offers.'"

(quoting McCoy v. WGN Continental Broadcasting Co.,

(7th Cir. 1992)). Moreover, "[t]he more valid a reason appears upon evaluation, the less

likely a court will be to find that reason pretextual." Ryan v. Reno,

(D.C. Cir.

1999) (quoting Brazil v. United States Dep't of Navy,

, 197 (9th Cir. 1995)).

Considering the record in its entirety, the Court finds that no reasonable jury could find pretext

based on Francis's proffer of evidence.

Francis does not contest the existence of the rumors and allegations, but claims that the

District offers no evidence of their truth and that Alexander never investigated them. See Pl.'s

Mem. at 22-23. But even assuming the rumors were neither true nor adequately investigated -- a

matter that Francis has not established5 -- Francis offers no evidence to refute Alexander's

testimony that the rumors created a cloud of suspicion around Francis and OPM. Had the rumors

ultimately been proven false, that would do nothing to discredit Alexander's statement that she

5 Alexander states that she both ordered an investigation of the contract and spoke to Francis directly. See Alexander Dep. at 67, 72-79.

13 terminated Francis because of them. In essence, Francis's argument amounts to a claim that the

termination decision was unfair or wrong. But although Francis might well have done nothing

inappropriate, "Title VII protects against discriminatory decisions, not wrong ones." Hairsine v.

James,

(D.D.C. 2007).

Similarly, Francis's positive performance evaluations from 2001 and 2002 are not

evidence of pretext. See Pl.'s Mem. at 20. To be sure, a plaintiff can also create an inference of

discrimination by showing that she was not terminated for "performance below the employer's

legitimate expectations." Mastro,

. However, strong past performance is not

inconsistent with the District's assessment that Francis was no longer the right person for the job

in light of the rumors. Moreover, the District has never taken the position that he was fired on

the basis of deficient performance. His performance was irrelevant to the District's proffered

reason for firing him -- namely, the cloud of suspicion created by the allegations of improper

conduct.

Francis further claims that the District's justification is pretextual because the District

never stated misconduct as the reason for his termination until Alexander's deposition. See Pl.'s

Mem. at 23. Alexander initially told him that his termination was "not for cause" and gave no

reasons for her decision. See Pl.'s Ex. 1 at ¶ 11 ("Francis Decl.").6 The District similarly made

no statements regarding Francis's conduct at the EEOC proceedings or in its responses to

plaintiff's interrogatories, instead referring more broadly to his status as a Management

6 The District moves to strike ¶ 12 of Francis's declaration as well as Attachment E of his opposition, because they refer to and describe correspondence not produced during discovery. Defs.' Reply at 11. The Court finds no need to resolve this issue because, even with consideration of that material, the District is entitled to summary judgment.

14 Supervisory Service employee who "served at the pleasure of the Director of OPM.7 See EEOC

Determination at 1; Pl.'s Ex. 3 at ¶ 2 ("Defs.' Resp. to Pl.'s First Set of Interrogatories"); Defs.'

Supp. Resp. to Pl.'s First Set of Interrogatories at ¶ 2.

Of course, a plaintiff can meet his burden of proving pretext with evidence that "the

employer's explanation was fabricated after the fact by showing that it contradicts other

contemporaneous accounts of the employer's decision." Aka,

. But here,

Alexander's later statements are consistent with a decision to fire him without cause. And there

is no conflict between Alexander's subsequent explanation and the position that Francis was

terminated without cause as an at-will employee, as stated in interrogatory responses. An

employer need not explain its reasons for firing an at-will employee without cause. That it

eventually does so during discovery does not establish pretext. See Bennett v. Chertoff,

(D.C. Cir. 2005) ("[T]he fact that the termination letter . . . stated unsuitability as

the reason for . . . termination is not inconsistent with termination on the basis that [plaintiff]

could not sustain a security clearance.").

Nor is Francis's evidence that OPM did not comply with its procedures for terminating an

MSS employee sufficient to establish pretext. See Pl.'s Mem. at 21. To be sure, an "employer's

failure to follow established procedures or criteria" can be grounds for finding pretext in some

7 Francis does not contend that the EEOC Determination of "reasonable cause" to find discrimination binds the Court, nor could he. It is well established that an EEOC determination does not have any binding effect in a collateral Title VII civil action. See Scott v. Johanns,

(D.C. Cir. 2005). More significantly, the EEOC Determination is so unpersuasive and conclusory that, even if it could properly be admitted into evidence, no reasonably jury could find discrimination based on the Determination. The finding, on its face, is based solely on the District's decision to fire Francis without supplying an explanation (which was consistent with his at-will status) and filling the position with an African American employee. See EEOC Determination at 1. The EEOC cited no other evidence to support its conclusion that the District acted with discriminatory motive. Hence, it does not alter this Court's analysis.

15 circumstances. Brady,

n.3. But "[a]n employer's failure 'to follow its own

regulations and procedures, alone, may not be sufficient to support' the conclusion that its

explanation for the challenged employment action is pretextual." Fischbach,

(quoting Johnson v. Lehman,

(D.C. Cir. 1982)).

Here, Francis presents insufficient evidence to demonstrate that there were "established

procedures or criteria" that OPM should have followed in effectuating his July 2003 termination.

He offers a statement by Benita Anderson that a termination action ordinarily should go through

the head of the DCHR -- as she puts its, "[a]t least that was my understanding" -- and a similar

statement by Leah Treat, an OPM Chief of Staff hired four years after his termination. See

Anderson Dep. at 21; Pl.'s Ex. 10 at 4, 54-60 ("Treat Dep.") (setting forth her "understanding" of

how a termination would work where performance was an issue). Those statements fail to

demonstrate that, at the time of Francis's termination in 2003, there was a departure from

"established procedures" for an at-will employee suspected of malfeasance (not poor

performance). Even assuming that there had been such a departure, moreover, no reasonable jury

could find that the alleged departure from procedure establishes pretext in light of the undisputed

cloud of suspicion surrounding Francis's activities.

Francis further contends that the District's explanation is pretextual because neither

Alexander nor her successor, Mitten, fired anyone except Francis, suggesting that no

"reengineering" in fact occurred. See Pl.'s Mem. at 21-22. However, as the District notes,

Francis "fails to consider that the reengineering of OPM was the removal of Director Tim

Diamond, Deputy Director Michael Lorusso, and himself from the leadership of OPM." Defs.'

Reply at 18. Moreover, to the extent Francis suggests he was treated differently than similarly

situated African American employees, he fails to supply evidence to support this contention.

16 Evidence of disparate treatment requires that "all the relevant aspects of [the plaintiff's]

employment were 'nearly identical' to those" not removed. Royall v. Nat'l Ass'n of Letter

Carriers, AFL-CIO,

(D.C. Cir. 2008) (citations omitted). Francis has not

shown that another employee was similarly situated, and therefore he cannot establish pretext on

this basis.

His claim that he was one of only nine white employees out of a total of 189 is similarly

unpersuasive. This statistic does not shed light on whether whites were treated less favorably

than African Americans because it fails to indicate how many whites applied for positions at

OPM relative to how many were hired. See Hunter v. Rice,

(D.D.C.

2007). Nor does it show that white employees were terminated more often than similarly

situated African Americans.

Francis also offers as evidence the allegedly "bizarre facts surrounding the selection of

Mr. Francis's replacement." Pl.'s Mem. at 23-24. First, OPM downgraded the Protective

Services Manager position from Grade 15 to Grade 14 -- the position's grade level when Francis

first assumed it -- and eventually offered it to Plez Jenkins. See PSM First Vacancy

Announcement; PSM Second Vacancy Announcement; Second Selection Certificate; Request for

Personnel Action. Jenkins was an African American who could not have qualified for the

position had it remained at Grade 15 because he previously held only a Grade 13 position. See

Pl.'s First Am. Compl. at ¶¶ 20-22. Second, Deputy Mayor Tillery, who participated in the

decision to terminate Francis, advised Carol Mitten to offer the job to Jenkins. Mitten Dep. at

18-19. Francis states that this pattern of events shows that his supervisors had an "agenda" and

"were looking to hire a specific person for that job and I was in the way." Francis Dep. at 149.

17 Even if the District terminated Francis to give the job to a pre-selected replacement,

"[p]reselection . . . does not violate Title VII when such preselection is based on the

qualifications of the party and not on some basis prohibited by Title VII." Nyunt v. Tomlinson,

(D.D.C. 2008) (citations omitted). In this jurisdiction, "a plaintiff can

directly challenge [a] qualifications-based explanation only if the plaintiff was 'significantly

better qualified for the job' than those ultimately chosen." Adeyemi,

(quoting

Holcomb v. Powell,

(D.C. Cir. 2006)) (emphasis in original).8

Construing the record in the light most favorable to Francis, no reasonable jury could find

Jenkins unqualified for the position of Protective Services Manager, nor could it find Francis

significantly better qualified. To be sure, Jenkins's prior position was at Grade 13 compared with

Francis's Grade 15 position. But in all other respects Jenkins was similarly qualified. He served

as the Director of Public Safety for the District of Columbia Public Library, where he developed

and implemented security programs and supervised a workforce of union personnel. See Pl.'s Ex.

8, Attachment 7, at 4 ("Jenkins Resume"). Prior to holding that position, his jobs included

Provost Marshal for the First Calvary Division in Fort Hood, Texas, which entailed supervising

275 security personnel and developing security plans. See Jenkins Resume at 5. In one respect,

Jenkins was more qualified than Francis: he held a B.A. in law enforcement and an M.S. in

administration (see id. at 7), whereas Francis held no university degree. See Pl.'s Resp. Defs.'

Stat. of Facts at ¶ 26. Moreover, Jenkins's resume shows that he held a supervisory military

position as early as 1987 (see Jenkins Resume at 7), whereas the earliest position on Francis's

8 The Court sees no difference analytically between assessing the comparative qualifications of (1) and unsuccessful applicant and a selectee, or (2) a terminated employee and the selectee chosen competitively to replace him.

18 resume dates from 1988. See Francis Resume/Application for #7779, at 3.9 Accordingly, on the

basis of the record evidence, a reasonable trier of fact could not find that Francis was

significantly better qualified than Jenkins.

Importantly, Alexander, who was primarily responsible for initiating the termination, was

not involved in the decision to hire Jenkins. She left the Department by early December 2003,

and knew nothing about either the reclassification of the position from Grade 15 to 14 or how

Jenkins came to be selected. See Alexander Dep. at 101. It was Carol Mitten who hired Jenkins

on or around December 15, 2003. See Mitten Dep. at 18-19; Second Selection Certificate.

Hence, Francis's contention of pretext or discrimination is further weakened by the difference in

the personnel ultimately responsible for each action.

In short, Francis has challenged the District's proffered nondiscriminatory reason for his

termination as pretextual on several grounds, but each contention falls far short of suggesting

pretext. The Court has also considered whether the events, collectively, suggest pretext or

underlying discrimination, and concludes that the evidence, taken in the light most favorable to

Francis, cannot reasonably be construed to support such a finding. Indeed, Francis himself

admits that until OPM hired Jenkins, "he had no reason to suspect that his termination was due to

reverse discrimination . . . since by all accounts and to all appearances, the District had simply

decided to replace him without cause." Pl.'s Mem. at 7. In other words, Francis admits that there

was no indicia of discrimination in the events immediately surrounding his termination. And as

discussed above, the hiring of Plez Jenkins later in 2003 does not suffice to indicate

9 Even if Jenkins ultimately resigned from the position of Chief at OPM because the job proved "too much for him" (Pl.'s Mem. at 6, quoting Anderson Dep. at 81), the Court "must beware of using 20/20 hindsight." Fischbach,

. Rather, it looks to the operative moment when Jenkins was hired.

19 discrimination, nor do the other background circumstances alleged by Francis. Furthermore,

Francis has failed to refute the District's evidence of the cloud of suspicion that hung over senior

management at OPM and, in particular, the existence of rumors of improprieties by Francis.

Considering the evidence as a whole, then, the Court concludes that on this record no reasonable

jury could find that race was a factor in the District's decision to terminate Francis.10

Accordingly, the District's motion for summary judgment on the Title VII discrimination claim

will be granted.

III. The D.C. Human Rights Act Retaliation Claim

Francis also brings two retaliation claims under the DCHRA based on the District's

decision not to hire him years later when he applied for positions #7779 (Management Analysis

Officer) and #5881 (Risk Management Coordinator). The District contends that the first

retaliation claim should be dismissed for failure to comply with the mandatory pre-suit notice

provision of

. See Defs.' Mem. at 15-17. The District further contends that

summary judgment is appropriate on the merits of both retaliation claims because no reasonable

trier of fact could find on this record that Francis's EEO activities were the cause of his non-

selection. See Defs.' Mem. at 25-29. The Court addresses each argument below.

10 Francis's First Amended Complaint indicates that he brings this case as a single-motive case under 42 U.S.C. §§ 2000e-2(a). See First Am. Compl. at ¶ 38 ("Defendants [acted] in order to discriminate against plaintiff on account of his race . . . .") and ¶ 41 ("In taking the foregoing actions and discriminating against plaintiff on account of his race, defendants violated . . . 42 U.S.C. § 2000e-2."). However, his brief suggests that he also intends to pursue a mixed-motive theory pursuant to

(m). See Pl.'s Mem. at 16-19 (citing Ginger v. Dist. of Columbia,

(D.C. Cir. 2008)). Assuming arguendo that his complaint adequately pleads a mixed-motive claim, the District is nevertheless entitled to summary judgment for the reasons stated above. On this record, no reasonable jury could find that race was even a motivating factor in the District's decision to terminate Francis.

20 A. Pre-Suit Notice under

The Court turns first to the District's threshold argument that the first retaliation claim is

barred for failure to comply with the pre-suit notice requirement. Section § 12-309 provides that:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

(emphasis added).11 Compliance with this requirement is "mandatory as a

prerequisite to filing a suit against the District" and is to be narrowly construed against the

claimant because it represents a waiver of sovereign immunity. Dist. of Columbia v. Arnold &

Porter,

(D.C. 2000) (quoting Hardy v. Dist. of Columbia,

(D.C. 1992)).12

Francis sent a letter to the Mayor on September 28, 2007, informing the District of his

retaliation claims arising from non-selection for positions #7779 and #5881. See Notice Letter.

The letter stated that "[a]lthough the District has never responded to Mr. Francis' applications for

the foregoing positions, he has recently learned that both positions have since been filled with

other candidates." Id. at 2. The District contends that the letter provides insufficient notice as to

11 The District of Columbia Court of Appeals has recently held that

applies to claims under the DCHRA. See Owens v. Dist. of Columbia,

(D.C. 2010); accord Faison v. Dist. of Columbia,

(D.D.C. 2009); Byrd v. Dist. of Columbia,

(D.D.C. 2008); Kennedy v. Dist. of Columbia Gov't,

(D.D.C. 2007). 12 "The requirement of prompt notice was designed to enable District officials to make a prompt investigation before evidence was lost or witnesses become unavailable, to correct potentially hazardous conditions, and to settle meritorious claims." Wharton v. Dist. of Columbia,

(D.C. 1995) (citations omitted).

21 position #7779 (Management Analysis Officer) because Francis had not yet suffered an injury.

See Defs.' Mem. at 16-17. This is because the position was not filled until the following week,

on October 5, 2007, and indeed, Francis still appeared on the selection certificate for the job on

October 4. Hence, the District argues that the injury had not yet occurred when Francis sent his

letter on September 28, 2007. See id. at 17; #7779 Selection Certificate.

The plain language of § 12-309 controls the resolution of this issue. Notice must occur

"within six months after the injury or damage was sustained."

(emphasis

added). But here, Francis sent his letter before the injury -- i.e., his non-selection -- occurred.

"[T]he District certainly was not put on notice of a claim that did not yet exist." Kennedy v. Dist.

of Columbia Gov't,

(D.D.C. 2007) (holding that plaintiff failed to comply

with § 12-309 when plaintiff sent a notice letter that did not mention an injury because it had not

yet occurred).

To be sure, there may be a theoretical possibility that Francis had been eliminated from

consideration for the job prior to sending the notice letter. But, if so, Francis has not carried the

burden of proving it. His only evidence is his statement that he "learned" from some unknown

person that both positions had been "filled with other candidates." Notice Letter at 2. But the

information provided by that unknown person is inadmissible hearsay. Hearsay evidence is

inadmissible unless it falls within a statutory exception. See Greer v. Paulson,

(D.C. Cir. 2007). "[O]n summary judgment, statements that are impermissible hearsay or

that are not based on personal knowledge are precluded from consideration by the Court."

Riggsbee v. Diversity Servs., Inc.,

(D.D.C. 2009) (citing Greer,

). Hence, on this record, the evidence shows only that Francis was injured on October 5,

2007, when the District selected another applicant for the job he sought. Because Francis's notice

22 letter was submitted before that injury, it is insufficient under the plain language of § 12-309.

Accordingly, the District is entitled to summary judgment with respect to the portion of Francis's

retaliation claim pertaining to position #7779.

B. Merits of the Retaliation Claims

The Court next turns to the merits of the retaliation claims. The District moves for

summary judgment on the merits with respect to the remaining non-selection decision (#5881),

and also seeks summary judgment on the merits with respect to #7779 as an additional basis for

summary judgment. The familiar burden-shifting framework set forth in McDonnell Douglas

applies to retaliation claims under the DCHRA. See Howard Univ. v. Green,

, 45

n.3 (D.C. 1994). Under this framework, the plaintiff must first establish a prima facie case by a

preponderance of the evidence. McDonnell Douglas Corp.,

. To establish a

prima facie case of retaliation under the DCHRA, a plaintiff must show: (1) that she was engaged

in a protected activity, or that she opposed practices made unlawful by the DCHRA; (2) that the

employer took an adverse personnel action against her; and (3) that a causal connection existed

between the two. Howard Univ.,

. If a plaintiff fails to establish one of those

elements, the "entire claim fails."

Furthermore, as under Title VII, in determining whether

judgment as a matter of law is appropriate in any particular case, the Court must consider the

employer's legitimate non-retaliatory reason for the adverse action and, ultimately, whether the

plaintiff has "offered sufficient evidence for a reasonable jury to find that retaliation . . . actually

motivated the employer's decision." See Hamilton v. Howard Univ.,

(D.C.

2008) (citations omitted).

23 1. The Prima Facie Case

The District concedes that Francis engaged in protected activity by filing his EEO charge

and assumes for this motion that non-selection for an open position constitutes adverse personnel

action. Defs.' Mem. at 26. However, the District argues that Francis cannot show a causal

connection between his EEO charge and the adverse actions at issue because too much time

passed between his EEO activity and the non-selection decisions. See

In response, Francis

alleges that Leah Treat knew of his claims against the District at the time she made her selection

decision for position #5881 on April 20, 2007, and therefore an inference of causation can be

drawn. See Pl.'s Mem. at 25.13 He does not discuss whether the hiring official for #7779 knew

of his protected activity when he made his hiring decision in October 2007.

A "causal connection . . . may be established by showing that the employer had

knowledge of the employee's protected activity, and the adverse . . . action took place shortly

after that activity." Rochon v. Gonzales,

(D.C. Cir. 2006) (quoting Mitchell

v. Baldridge,

(D.C. Cir. 1985)). In other words, where a causal connection is

based on the employer's knowledge of the plaintiff's protected activity, temporal proximity is also

required. Although Francis claims that a plaintiff may establish a causal connection by evidence

other than temporal proximity, he has offered no such evidence. See Pl.'s Mem. at 10-11 n.5.

Hence, the Court looks to whether temporal proximity, in combination with the employer's

knowledge, is sufficient to support an inference of a causation.

13 Francis characterizes Treat's "knowledge" as awareness of his having sued OPM. See Pl.'s Mem. at 25. But it is factually impossible that Treat knew of this lawsuit in February of 2007 because Francis had not filed or given notice of suit at that time. Hence, the Court will assume that Francis means to refer to Treat's knowledge of his EEO activity.

24 As to position #5881 (the Risk Management Coordinator position in OPM), Francis has

proffered evidence indicating that the selecting official -- Leah Treat -- knew of his EEO activity,

but he is unable to show causation through a temporal connection because the non-selection took

place over a year after his last protected EEO activity. For temporal proximity to support an

inference of retaliation, the events must be "very close." See Clark County Sch. Dist. v. Breeden,

(2001) (per curiam). This Circuit has found that gaps as small as "two and

one-half months. . .would be untenable" for the purpose of establishing causation. Taylor v.

Solis,

(D.C. Cir. 2009); see also Hammond v. Chao,

(D.D.C. 2005) ("Although plaintiff's supervisor . . . was aware of the plaintiff's . . . EEOC

complaint . . . the year-and-a-half gap is too great to permit temporal proximity alone to establish

a causal connection.") (citations omitted). Here, well over a year separates the date of the EEOC

Determination (the last recorded EEO activity) on September 15, 2005, and the date of his non-

selection for #5881 on April 20, 2007. See #5881 Selection Certificate. Therefore, the Court

holds that Francis has failed to demonstrate a causal connection between his EEO activity and his

non-selection for position #5881.

A timeline more favorable to Francis underlies the non-selection for position #7779, a

Management Analysis Officer position with the Office of Risk Management (an agency separate

from OPM). But even here, Francis fails to prove a causal connection. He filed this lawsuit

against the District on August 15, 2007, asserting claims under Title VII and the D.C. Human

Rights Act, and the non-selection occurred on or about October 5, 2007. Hence, the proximity

between the Title VII activity and the adverse action is much closer -- about seven weeks. But

Francis has offered no evidence that the selecting official in the Office of Risk Management

knew that this lawsuit against the District and OPM had been filed. See Pl.'s Mem. at 25.

25 Furthermore, there is no basis for the Court to presume that the selecting official knew of the

lawsuit, especially considering that the Office of Risk Management was not accused of

wrongdoing in the complaint filed on August 15, 2007.14 Hence, the absence of any evidence of

employer knowledge of relevant protected activity defeats the causal connection assertion.

Accordingly, the District is entitled to summary judgment on both non-selection claims because

Francis has not established an essential prima facie element of retaliation -- a causal connection

between any of his protected EEO activity and the non-selections for positions #5881 or #7779.

2. Assessment of the District's Legitimate Non-retaliatory Reason and Pretext

Assuming arguendo that Francis has established a prima facie case of retaliation for each

non-selection, there is an independent ground for entering summary judgment for the District.

The District has produced a legitimate non-retaliatory reason for each non-selection action, and

Francis has failed to offer evidence from which a reasonable jury could find those reasons to be

pretext for retaliation.

a. Position #5881

The District offers the following legitimate, non-retaliatory reason for selecting Sonya

Williams rather than Francis for position #5881 (Risk Management Coordinator) -- she was an

internal candidate working in risk management under the supervision of Leah Treat and was a

"known quantity." Defs.' Mem. at 29 (citing Treat Dep. at 29). As evidence that the District's

reason is pretext, Francis argues that he was more qualified than Williams and that he was given

rankings that were patently too low during the selection process. See Pl.'s Mem. at 25.

14 Indeed, the allegations against the Office of Risk Management came only after that agency made its non-selection decision, which was then incorporated into Francis's First Amended Complaint on October 22, 2007.

26 The relevant question, of course, is not whether Francis was qualified, but whether he was

significantly better qualified than Williams. Courts do not serve as "a super-personnel

department that reexamines an entity's business decisions." Barbour v. Browner,

(D.C. Cir. 1999) (citation omitted). Accordingly, "a plaintiff can directly challenge [a]

qualifications-based explanation only if the plaintiff was 'significantly better qualified for the job'

than those ultimately chosen." Adeyemi,

(quoting Holcomb,

)

(emphasis in original).

Francis contends that he was more qualified than Williams based primarily on his

previous performance of the requirements of the position while serving as Chief of the Protective

Services Division from 1999-2003. See Pl.'s Mem. at 25. But his own prior performance, by

itself, does not show that he was significantly better qualified than Williams. With respect to

Williams, Francis has offered very little. The record shows only that Williams was a Grade 12

management analyst employed at OPM at the time of the April 2007 selection, with job functions

split equally between risk management and management support in the Office of the Director.

See Treat Dep. at 30. This evidence -- and, in particular, the lower grade level -- is not sufficient

to show that Francis was "significantly better qualified" than Williams. As this Circuit has

explained, "the applicants' relative grade levels at the time of the application are irrelevant, for 'it

says little about the level of relative . . . qualifications to serve.'" Barnette v. Chertoff,

(D.C. Cir. 2006) (citing Stewart v. Ashcroft,

(D.C. Cir. 2003)).

Furthermore, Francis has produced no additional information about Williams' qualifications to

assist in the comparative inquiry. Hence, he has not carried the burden of showing that he was

27 significantly better qualified.15

Francis's contention that he should have received higher scores from Treat in the ranking

factors is similarly insufficient to establish an inference of retaliation. See Pl.'s Mem. at 25; Pl.'s

Ex. 8, Attachment 14, at 5 ("Rankings"). "Evidence indicating that an employer misjudged an

employee's performance or qualifications is, of course, relevant to the question whether its stated

reason is a pretext masking prohibited discrimination . . . ." Fischbach,

(citation

omitted). But even assuming that Francis should have received better scores, he offers nothing to

suggest that Williams did not deserve the scores she received. Where both applicants are

qualified, "liability cannot rest solely upon a judge's determination that an employer misjudged

the relative qualifications of admittedly qualified candidates."

(citing Ramey v. Bowsher,

(D.C. Cir. 1990)). In short, no reasonable jury could find on this record that the

District's explanation is pretext for retaliation. Indeed, when one considers the long period of

time -- 18 months -- that had passed between the last action on Francis's EEO charge (the EEOC

decision in September 2005) and the non-selection (April 2007), a contrary conclusion would be

untenable.

b. Position #7779

The District also offers a legitimate, non-retaliatory reason for not selecting Francis for

position #7779 (Management Analysis Officer) -- Gail Allen was selected for the position

because she was more qualified than Francis. Defs.' Mem. at 28. In response, Francis offers

evidence that allegedly shows his qualifications were superior to Allen's in order to establish

pretext.

15 "In a close case, a reasonable juror would usually assume that the employer is more capable of assessing the significance of small differences in the qualifications of the candidates, or that the employer simply made a judgment call." Aka,

. Accordingly, the evidence here is insufficient to establish an inference of retaliation.

28 The record does not support the conclusion that Francis was "significantly better

qualified" for the position of Management Analysis Officer than was Gail Allen. Both had

substantial managerial experience. Compare Francis Resume with Allen Application. But,

unlike Francis, Allen also had a college degree and the substantial insurance management

experience sought in the job vacancy announcement. See #7779 Vacancy Announcement at 2.

"[C]ourts must defer to the employer's decision as to which qualities required by the job

(substantive v. managerial) it weighs more heavily." Barnette, 435 F.3d at 517 (citing Stewart,

). In light of Francis's failure to show that he was significantly better qualified,

there is no reasonable basis for concluding that the District's explanation is pretext for retaliation.

Hence, the District is entitled to summary judgment on this claim as well.

CONCLUSION

For the foregoing reasons, the Court will grant the District's motion for summary

judgment. A separate order will be filed on this date.

/s/ JOHN D. BATES United States District Judge

Date: August 18, 2010

29