UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LISA SINGH, ) ) Plaintiff, ) ) v. ) Case No. 1:18-cv-1247-RCL ) AMERICAN ASSOCIATION OF ) RETIRED PERSONS, INC., et al., ) ) Defendants. ) _______________________________________)

MEMORANDUM OPINION

Plaintiff Lisa Singh filed this lawsuit against American Association of Retired Persons,

Inc. (“AARP”) and Aquent, LLC (“Aquent”) in May of 2018. Ms. Singh was an Aquent

employee assigned to work as a contractor at AARP. In March of 2018, when Ms. Singh was

approximately six months pregnant, AARP terminated her assignment. She accuses AARP of

discrimination and retaliation in violation of the District of Columbia Human Rights Act

(“DCHRA”) and accuses Aquent of the same under a joint employer theory of liability. Both

defendants have filed for summary judgment (ECF Nos. 27 & 28). Upon consideration of the

motions, opposition (ECF No. 36), and replies (ECF Nos. 39 & 40), the Court has determined

that (when viewing the evidence in the light most favorable to the plaintiff) a reasonable juror

could find either defendant liable for discrimination. Although no reasonable juror could find

Aquent liable for retaliation, the Court has determined that (when viewing the evidence in the

light most favorable to the plaintiff) a reasonable juror could find AARP liable for retaliation.

The Court will therefore DENY AARP’s Motion for Summary Judgment (ECF No. 28) and

GRANT IN PART AND DENY IN PART Aquent’s Motion for Summary Judgment (ECF No.

1 27). The Court will ORDER that Count II against Aquent is DISMISSED WITH PREJUDICE

and enter JUDGMENT for Aquent on Count II.

BACKGROUND

Aquent is a temporary staffing agency that employed Ms. Singh and assigned her to work

as a contractor at AARP in May of 2014. Tozzi Dep. at 12; Singh Dep. at 51-52. Although Ms.

Singh was an Aquent W-2 employee, AARP controlled her daily work activities, schedule, etc.

Tozzi Dep. at 15-20. AARP had the authority to terminate her assignment at any time. Id. In

October of 2017, Ms. Singh learned that she was pregnant. Singh Dec. ¶ 21. She shared this

information with her managers in February of 2018, including the fact that her pregnancy was

high-risk. Id. at ¶ 22.

On March 1, 2018, AARP made a company-wide announcement of certain impending

organizational changes, including its decision to transfer many producers from the Audience

Engagement team to the Content team supervised by Jodi Bettencourt. Ms. Singh had previously

worked under Ms. Bettencourt while employed at Travel Channel a few years earlier. Singh Dep.

at 77-78. In January of 2014, Ms. Singh had disclosed to Ms. Bettencourt that she was pregnant,

and the following day, Ms. Bettencourt allegedly told Ms. Singh that her employment with

Travel Channel would soon be terminated. Singh Dep. at 60. After her actual termination from

Travel Channel a few months later, Ms. Singh accused Ms. Bettencourt of pregnancy

discrimination, and Ms. Singh and Travel Channel reached a confidential settlement agreement.

Singh Dep. at 57; Singh Dec. ¶ 12. Upon learning that she would once again be working under

Ms. Bettencourt pursuant to AARP’s reorganization plans, plaintiff contacted Tina Tozzi

(Aquent’s Director of Strategic Accounts and Ms. Singh’s primary point of contact at Aquent);

2 according to Ms. Singh, she informed Ms. Tozzi of the following points: (1) Ms. Bettencourt had

previously been her manager at Travel Channel; (2) pregnancy should not be viewed as a

liability; (3) Ms. Bettencourt needs to know that contractors have rights just like regular

employees; and (4) if you have medically necessary appointments, you can still do your job.

Singh Dep. at 152-53. Ms. Tozzi remembers this phone call but does not remember Ms. Singh’s

concerns about the reorganization being related to her pregnancy. Tozzi Dep. at 106-108.

Over the next few weeks, AARP worked to figure out how its reorganization plans would

impact contractors and employees. On March 8, 2018, Larry Contratti (Ms. Singh’s second-level

supervisor at AARP) emailed Ms. Bettencourt and Amanda Boltax to inform them of Ms.

Singh’s pregnancy. Both women have admitted to discussing Ms. Singh’s pregnancy and

characterizing it as “convenient.” Bettencourt Dep. at 102; Boltax Dep. at 122-23. On March 29,

2018, Ms. Boltax emailed Ms. Tozzi to notify her that AARP was ending its relationship with

Ms. Singh. Boltax Dep., Exh. 12. Ms. Tozzi responded that she was surprised by the decision

and asked for feedback. Id. Ms. Boltax replied that Ms. Singh’s original responsibilities had been

transferred to another employee, and AARP did not want to retain her because her teammates

said she was difficult to work with and her supervisors frequently found errors in her work.

Tozzi Dep., Exh. 11. Ms. Tozzi called plaintiff on March 30, 2018 to inform her of AARP’s

decision. Singh Dec. ¶ 28. Although Ms. Bettencourt outranked Ms. Boltax at AARP, they have

both claimed that Ms. Boltax was responsible for the ultimate decision to terminate Ms. Singh.

Boltax Dep. at 35; Bettencourt Dep. at 127. In May of 2018, Ms. Singh filed this lawsuit against

both AARP and Aquent for discrimination and retaliation in violation of the DCHRA. Both

defendants deny that Ms. Singh’s termination was based on discrimination or retaliation.

3 LEGAL STANDARDS

I. SUMMARY JUDGMENT

Summary judgment is appropriate “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). Courts must “view the evidence in the light most favorable to the nonmoving party and

draw all reasonable inferences in its favor.” Athridge v. Aetna Cas. & Sur. Co.,

(D.C. Cir. 2010). To show that a dispute is “genuine” and defeat a summary judgment

motion, the nonmoving party must present evidence “such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

(1986). “If

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

granted.”

. If, however, “there are genuine issues that properly can be resolved only

by a finder of fact,” summary judgment is not appropriate.

. When deciding a summary

judgment motion, the Court is not supposed to weigh the evidence—rather, the Court must

determine whether there is contradictory evidence to be weighed at trial. See Abraham v.

Graphic Arts Int’l Union,

(D.C. Cir. 1981).

II. DISCRIMINATION & RETALIATION CLAIMS

The DCHRA prohibits all forms of employment discrimination, including sex

discrimination, which encompasses pregnancy discrimination.1

(a).

The DCHRA also prohibits retaliation against employees for engaging in statutorily protected

activity, considering it to be another form of discrimination.

.

1 DCHRA claims are generally evaluated under the same legal framework as Title VII claims. See Sparrow v. United Air Lines,

, 1114 n.3 (D.C. Cir. 2000). The Court can properly adjudicate plaintiff’s DCHRA claims based on diversity jurisdiction.

.

4 Employment discrimination and retaliation claims that rely on circumstantial evidence—as

opposed to direct evidence of discrimination—are analyzed under the burden-shifting framework

found in McDonnell Douglas Corp. v. Green,

(1973). Under McDonnell Douglas,

the employee “must carry the initial burden under the statute of establishing a prima facie case of

. . . discrimination.”

. In cases concerning sex discrimination, a prima facie case

requires a showing that “(1) [the plaintiff] 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.” Chappell-Johnson v. Powell,

(D.C. Cir. 2006) (citing Brown

v. Brody,

(D.C. Cir. 1999)).

If the employee establishes a prima facie case of discrimination, the burden “must shift to

the employer to articulate some legitimate, nondiscriminatory reason” for the adverse action.

McDonnell Douglas,

. The employer “must clearly set forth, through the

introduction of admissible evidence, the reasons for the [action]” so as to “raise[] a genuine issue

of fact as to whether it discriminated against the plaintiff.” Tex. Dep’t of Cmty. Affairs v.

Burdine,

(1981). The employer, however, “need not persuade the court that

it was actually motivated by the proffered reasons.”

.

If the employer succeeds in offering legitimate, nondiscriminatory reasons for the action,

“the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true reasons, but were a pretext for

discrimination.”

. The plaintiff may demonstrate pretext “either 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.”

. Either

way, the plaintiff must show “both that the reason was false, and that discrimination was the real

reason.” St. Mary’s Honor Ctr. v. Hicks,

(1993). Evidence of pretext may 5 include “the employer’s better treatment of similarly situated employees outside the plaintiff’s

protected group, its inconsistent or dishonest explanations, its deviation from established

procedures or criteria, or the employer’s pattern of poor treatment of other employees in the

same protected group as the plaintiff” as well as any “other relevant evidence that a jury could

reasonably conclude evinces an illicit motive.” Walker v. Johnson,

(D.C.

Cir. 2015) (emphasis added).

Retaliation claims are subject to the same McDonnell Douglas burden shifting standard

as discrimination claims. Walker,

. To establish a prima facie case of retaliation,

“the plaintiff must allege that she engaged in activity protected by [the statute], the employer

took adverse action against her, and the employer took that action because of the employee’s

protected conduct.”

. The plaintiff must also establish that retaliation was a

rationale for the adverse action in order to prove causation. Once the plaintiff establishes these

three elements of a prima facie case, “the burden shifts to the employer to identify the legitimate,

. . . non-retaliatory reason on which it relied in taking the complained-of action.” Walker,

. Then, the plaintiff must show “that the employer’s stated reasons were pretextual,

and the real reason[] [was] prohibited . . . retaliation.”

The aforementioned categories of

evidence demonstrating pretext in discrimination claims also apply to retaliation claims.

In practicality, the issue of whether the plaintiff has established a prima facie case of

discrimination or retaliation under McDonnell Douglas “is almost always irrelevant.” Brady v.

Office of the Sergeant at Arms,

(D.C. Cir. 2008). “[B]y the time the district

court considers an employer’s motion for summary judgment . . . the employer ordinarily will

have asserted a legitimate, non-discriminatory [and non-retaliatory] reason for the challenged

decision,” which is “important because once the employer asserts a legitimate, non-

6 discriminatory [and non-retaliatory] reason, the question [of] whether the employee actually

made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the

picture.’”

(quoting Hicks,

). Therefore, the D.C. Circuit has stated:

[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory [and non-retaliatory] reason for the decision, the district court need not—and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer’s motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory [and non- retaliatory] reason was not the actual reason and that the employer intentionally [retaliated against or] discriminated against the employee on the basis of race, color, religion, sex, or national origin? Id. at 494; see Jones v. Bernanke,

(D.C. Cir. 2009) (explaining that the

simplified McDonnell Douglas standard applies to retaliation claims as well). It is also important

to note that when a plaintiff shows pretext, she is not required to prove that discrimination or

retaliation was the but-for cause of the adverse action. Although all parties in this case have

referenced the but-for standard, the DCHRA sets a lower bar for causation, requiring only that

discrimination or retaliation be part of the reason for the adverse action.

-

1402.11(a) (explaining that an adverse action is unlawful if taken “wholly or partially for a

discriminatory reason”) (emphasis added).2

2 Although the DCHRA does not require but-for causation in order to prove a discrimination claim, Ms. Singh has brought forth evidence sufficient for a reasonable juror to conclude that discrimination was the but-for cause of her termination from AARP. The Court’s decision regarding discrimination would thus be the same under either standard. As for retaliation, the DCHRA does not specify whether this lower standard also applies to retaliation claims, but because the DCHRA considers retaliation to be a form of discrimination, the Court believes that the standard is the same for both types of claims. See

(“It shall be an unlawful discriminatory practice to . . . retaliate against” a person for engaging in statutorily protected activity) (emphasis added). Like with Ms. Singh’s discrimination claims, however, the Court’s decision regarding retaliation would be the same under either standard, as she has brought forth sufficient evidence such that a reasonable juror could find retaliation to be the but-for cause of her termination.

7 ANALYSIS

I. CLAIMS AGAINST AARP

Ms. Singh has brought one discrimination claim and one retaliation claim against AARP.

For the reasons explained below, Ms. Singh’s discrimination and retaliation claims both raise

genuine issues of material fact that need to be resolved by a factfinder.

A. Ms. Singh’s Discrimination Claim Raises Genuine Issues of Material Fact.

Ms. Singh’s contractor status with AARP was terminated in March of 2018 when she was

approximately six months pregnant. Under the simplified McDonnell Douglas framework, there

is no need to assess whether she has established a prima facie case of discrimination because

AARP has already proffered a legitimate, non-discriminatory reason for terminating her. AARP

claims that because of internal reorganization, there was no longer a position for her at the

company. It also claims that her co-workers found her difficult to work with and that her work

frequently contained errors. Ms. Singh, however, has brought forth sufficient evidence such that

a reasonable juror could find pretext for unlawful discrimination. Although no single

independent piece of evidence that she points to is sufficient to lead a jury to find AARP liable,

the evidence in totality raises a genuine dispute of material fact, making summary judgment

improper. This is common in employment discrimination cases, as there is rarely direct evidence

of discrimination—rather, a plaintiff must rely on multiple pieces of circumstantial evidence to

prove discriminatory animus by a preponderance of the evidence.

AARP’s main argument is that after the reorganization, Ms. Singh did not meet any of

the remaining job descriptions and thus there was simply no place for her. One piece of evidence

that Ms. Singh points to in her effort to rebut this assertion is that she has strong writing skills.

AARP argues that writing (Ms. Singh’s recognized strength) was not going to be part of the

8 production job that would remain after the reorganization, and AARP was instead looking for

“well-rounded producers who had broadcast experience, graphic design experience, and

demonstrated that they had worked with video and podcasts as well as traditional media.” ECF

No. 28-2 at 6. Ms. Singh, however, points to the deposition of Mr. Contratti, who stated that

written content was a priority for the new team after the reorganization. Contratti Dep. at 26-27.

Likewise, Ms. Bettencourt admitted during her deposition that she told the Audience

Engagement team during a meeting on March 1, 2018 that she wanted “people who knew what

good writing was” and considered writing skills to be a priority for the reorganized team.

Bettencourt Dep. at 52-55. Plaintiff also points to numerous other pieces of evidence suggesting

that writing skills were important to the reorganized team, yet AARP argues that plaintiff’s

writing skills are irrelevant because the Court’s role is not to question the wisdom of AARP’s

personnel choices, but rather to determine whether those personnel choices were discriminatory.

Because, however, AARP has cited no longer needing Ms. Singh’s skills after the reorganization

as its reason for terminating her, plaintiff’s writing skills are relevant, as they directly rebut the

validity of AARP’s stated rationale. Ms. Singh has shown ample evidence that AARP valued her

writing skills before announcing the reorganization, and she has also shown that she frequently

outproduced her teammates. She has also pointed to evidence suggesting that (contrary to

AARP’s assertions), writing skills were still necessary after the reorganization. Additionally, Ms.

Singh highlights the job posting that AARP put out after the reorganization, which was

supposedly very similar to the job posting for the position from which she was terminated.

Boltax Dep., Exh. 14. Although AARP disputes Ms. Singh’s characterization of the post-

reorganization job notice, that is a factual dispute for a jury to resolve.

9 A reasonable juror could also be troubled by the fact that Ms. Bettencourt interviewed

every single member of the Audience Engagement team except for Ms. Singh prior to making

termination decisions. Ms. Bettencourt claimed at her deposition that she could not meet with

Ms. Singh due to a “scheduling conflict,” Bettencourt Dep. at 85-86, but Ms. Boltax’s deposition

suggests that Ms. Bettencourt did not want to participate in Ms. Singh’s interview because of

what happened at Travel Channel, Boltax Dep. at 49-50. Although this evidence is more

probative of Ms. Singh’s retaliation claim, it nonetheless calls into question the truthfulness of

Ms. Bettencourt’s testimony, including her statements about why Ms. Singh was terminated.

Oftentimes, plaintiffs in employment discrimination cases use comparator evidence,

which involves looking at others who were similarly situated and how the employer treated

them. Here, AARP suggests that because Christine Carson—another team member who was on

maternity leave in March of 2018—was not terminated, AARP must not have discriminated

against Ms. Singh based on pregnancy. Although AARP can argue this at trial, it does not

definitively prove that Ms. Singh’s claim will fail. The jury must weigh this evidence, especially

because Ms. Singh has alleged that AARP only retained Ms. Carson because she resumed her

work in March of 2018, shortly after AARP announced its impending reorganization. Singh Dec.

¶ 25. Although Ms. Boltax testified at her deposition that Ms. Carson did not return until April of

2018, Boltax Dep. at 45-46, that is a factual dispute for the jury to resolve. Additionally, it is

possible that AARP recognized that it would find itself in serious legal trouble if it

simultaneously terminated an employee on maternity leave and an employee who was about to

take maternity leave. Essentially, although AARP’s decision not to terminate Ms. Carson could

end up being very compelling at trial, it is not dispositive, and it does not entitle AARP to

summary judgment. Furthermore, AARP suggests that because it terminated multiple other non-

10 pregnant contractors at the same time, Ms. Singh could not have been fired due to pregnancy

discrimination. This logic is flawed. Ms. Singh does not dispute that AARP was reorganizing,

nor does she dispute that some terminations were necessary to effectuate that reorganization. The

issue is whether Ms. Singh was selected as one of the contractors to be terminated because of her

pregnancy. AARP is welcome to present evidence at trial that non-pregnant contractors were

terminated at the same time as Ms. Singh, but that evidence does not entitle it to summary

judgment.

Another rationale that AARP uses to justify Ms. Singh’s termination is the allegedly poor

reviews she received from her co-workers. During her deposition, however, Ms. Boltax was

unable to recall which member or members of the former Audience Engagement team said that

Ms. Singh was difficult to work with. Boltax Dep. at 90-91. There is also no evidence to suggest

that Ms. Singh ever received poor feedback prior to March of 2018, as both Maura White and

Mr. Contratti had given her positive reviews before then. White Dep. at 35-36; Contratti Dep. at

16, Exh. 1. AARP has also stated that Alyson Casey, the Quality Assurance contractor, made

negative comments about constantly having to correct errors in Ms. Singh’s work. Tozzi Dep.,

Exh. 11. Again, much of the evidence directly contradicts this feedback. Of course, the Court’s

job is not to determine whether AARP made a wise decision in terminating Ms. Singh, but the

Court also cannot blindly accept AARP’s stated rationale—if AARP genuinely believed that Ms.

Singh produced poor work, then it had every right to fire her. If, however, that belief was not

genuine, AARP cannot be permitted to use it as an excuse for terminating Ms. Singh if its real

reason was her pregnancy. Based on the evidence that Ms. Singh has brought forth, a reasonable

juror could find the allegedly poor feedback from co-workers and supervisors to be a cover for

discrimination. To be clear, the Court is not accusing AARP of lying about any of this

11 information, but the timing of the negative feedback could be viewed with suspicion, meaning

that a factfinder will need to assess this evidence carefully at trial.

Furthermore, Ms. Singh has brought forth evidence that the timing of her termination was

highly suspicious. Although Ms. Boltax admits that she considered Ms. Singh to be the strongest

candidate for the reorganized Quality Assurance position on March 2, 2018 (before Ms. Boltax

learned of Ms. Singh’s pregnancy), Ms. Singh was terminated later that month—but Ms. Boltax

did not eliminate the Quality Assurance position until after terminating Ms. Singh. Boltax Dep.

at 46-47, 70, 73. Additionally, the reactions of Ms. Boltax and Ms. Bettencourt upon learning

about Ms. Singh’s pregnancy could suggest that Ms. Singh’s termination was the result of

discrimination. Ms. Bettencourt admitted during her deposition that she discussed with Ms.

Boltax how the email informing them of Ms. Singh’s high-risk pregnancy “came out of the blue”

and was “totally out of context and deliberate.” Bettencourt Dep. at 104. Ms. Boltax admitted to

feeling that the email was meant to “influence” her decision. Boltax Dep. at 122-23. These

negative reactions coupled with the suspicious timing of Ms. Singh’s termination could be

influential in leading a reasonable juror to find discrimination based on pregnancy.

It is important to recognize that AARP and Aquent both accuse Ms. Singh of “cherry-

pick[ing]” quotes from depositions, using misleading portions of exhibits, telling “half-truths,”

etc. ECF No. 39 at 19; ECF No. 40 at 1. The fact remains, however, that these quotes and pieces

of evidence exist. If AARP believes that the evidence Ms. Singh cites is misleading or being

taken out of context, it may argue that at trial. The jury may very well agree with AARP’s

characterization of what occurred in March of 2018; however, as long as evidence exists that

would permit a reasonable juror to find in Ms. Singh’s favor, it is not the Court’s place to weigh

that evidence. If there is evidence to be weighed, the factfinder must do so at trial. Again, it is

12 important to remember that in cases relying upon circumstantial evidence, there is rarely a

“smoking gun;” rather, the factfinder must assess the evidence as a whole and determine whether

it is more likely than not that AARP terminated Ms. Singh based on impermissible pregnancy

discrimination. When viewing the evidence in the light most favorable to Ms. Singh, it is clear

that a reasonable juror could find that AARP’s stated rationales for terminating Ms. Singh are

mere pretext for pregnancy discrimination, thus making summary judgment inappropriate.

B. Ms. Singh’s Retaliation Claim Raises Genuine Issues of Material Fact.

Ms. Singh’s retaliation claim against AARP is based on her belief that Ms. Bettencourt

retaliated against her for accusing her of pregnancy discrimination at Travel Channel. Although

Ms. Singh’s conversation with Ms. Tozzi on March 1, 2018 is not protected behavior, Ms. Singh

clearly engaged in protected behavior when she accused Ms. Bettencourt of pregnancy

discrimination in 2014, which ultimately resulted in a confidential settlement agreement with

Travel Channel. AARP, however, denies that Ms. Singh’s termination in March of 2018 was

retaliatory. AARP first attempts to refute the retaliation claim by arguing that it was Ms. Boltax

and not Ms. Bettencourt who made the decision to terminate Ms. Singh. According to AARP,

because there is no evidence that Ms. Bettencourt told Ms. Boltax about Ms. Singh’s accusations

at Travel Channel, Ms. Boltax’s decision to terminate her could not have been retaliatory. The

Court, however, finds that Ms. Singh has raised a genuine question of material fact as to Ms.

Bettencourt’s role in her termination. Although AARP points out that Ms. Boltax and Ms.

Bettencourt “testified under oath . . . on at least six separate instances . . . that Ms. Boltax had

100% authority to make the personnel decisions as to who would be retained as part of the new

digital producer team,” ECF No. 40 at 9, there is conflicting evidence on this point. AARP

acknowledges that Ms. Bettencourt was Ms. Boltax’s supervisor,

which could raise questions

13 about whether Ms. Boltax really made the decision independently. Ms. Bettencourt was also

heavily involved in the interview process, and Ms. Bettencourt and Ms. Boltax admit that they

discussed the termination decisions at length. Additionally, Ms. Boltax’s and Ms. Bettencourt’s

own depositions could be read as suggesting that Ms. Bettencourt was more involved than AARP

wants the Court to believe. For example, it is undisputed that Ms. Boltax needed Ms.

Bettencourt’s “approval,” and Ms. Bettencourt had to “sign off” on Ms. Boltax’s decisions.

Boltax Dep. at 80-81. It is thus for a factfinder to determine whether the decision really was

“100%” Ms. Boltax’s as AARP claims.

Regardless of how many times Ms. Boltax and Ms.

Bettencourt testified under oath that Ms. Singh’s termination was Ms. Boltax’s decision, a

reasonable juror could conclude otherwise. The question of Ms. Bettencourt’s involvement in the

decision is crucial, as she admits that she harbored “hurt” over Ms. Singh’s accusations against

her at Travel Channel. Bettencourt Dep. at 32-33. Therefore, a jury must decide whether to

believe AARP’s assertion that Ms. Boltax made the decision to terminate Ms. Singh by herself,

as resolution of this issue involves determinations about witness credibility.

The defense has also argued that the events at Travel Channel were too far removed from

Ms. Singh’s termination in March of 2018 to constitute retaliation. Approximately four years

passed between Ms. Singh’s termination from Travel Channel and her termination from AARP.

Ordinarily, this would undermine a plaintiff’s attempts to show causation. See, e.g., Payne v.

District of Columbia Government,

(D.C. Cir. 2013) (noting that “[o]nce the

time between a protected disclosure and a negative employment action has stretched to two

thirds of a year,” there is no longer “temporal proximity” supporting a causal connection

between the two events). In Payne, however, the D.C. Circuit noted that the lack of temporal

proximity would not have been fatal to the plaintiff’s claim if he provided other convincing

14 evidence of causation, which he failed to do.

In contrast, Ms. Singh is not basing her claim on

temporal proximity, so a lack of temporal proximity is not fatal.3 Another important distinction is

that Payne dealt with the District of Columbia Whistleblower Protection Act rather than the

DCHRA; however, even if Payne did involve the DCHRA, this situation would still be unique.

Unlike in Payne where the plaintiff remained employed by the same entity (the D.C.

government), the facts underlying Ms. Bettencourt’s alleged retaliation involve two separate

employers—after Ms. Singh accused Ms. Bettencourt of pregnancy discrimination at Travel

Channel, Ms. Singh went to work at AARP and did not report directly to Ms. Bettencourt again

until March of 2018. Therefore, Ms. Bettencourt would not have had an opportunity to retaliate

against her during those four intervening years. If Ms. Bettencourt had remained Ms. Singh’s

supervisor throughout that time, the Court would find the lack of temporal proximity to be more

concerning; however, March of 2018 was the first opportunity Ms. Bettencourt would have had

in four years to retaliate against Ms. Singh, so those four years do not undermine Ms. Singh’s

retaliation claim. Although AARP is welcome to highlight the intervening years for a jury, a

reasonable juror could still find by a preponderance of the evidence that AARP’s stated

rationales for terminating Ms. Singh were mere pretext for retaliation. When viewing the

evidence in the light most favorable to Ms. Singh, summary judgment for AARP is

inappropriate.

3 The D.C. Circuit has recognized that there are certain cases in which temporal proximity alone is sufficient to establish a prima facie case of retaliation. See, e.g., Hamilton v. Geithner,

(D.C. Cir. 2012). In this case, however, Ms. Singh is not basing her retaliation claim against AARP on temporal proximity. Therefore, the lack of temporal proximity is not fatal to her retaliation claim, and the line of cases that the defense cites are inapplicable.

15 II. CLAIMS AGAINST AQUENT

Ms. Singh has brought one discrimination claim and one retaliation claim against

Aquent.4 For the reasons explained below, Ms. Singh’s discrimination claim raises genuine

issues of material fact that need to be resolved by a factfinder, but her retaliation claim does not.

Summary judgment in Aquent’s favor is therefore appropriate only on the retaliation claim,

which fails as a matter of law.

A. Ms. Singh’s Discrimination Claim Raises Genuine Issues of Material Fact.

Aquent argues that because Ms. Singh’s discrimination claim against AARP cannot

survive and her discrimination claim against Aquent is based on joint employer liability, it

follows that her discrimination claim against Aquent cannot survive. As explained above,

however, AARP is not entitled to summary judgment on the discrimination claim. Therefore, this

preliminary argument is invalid.

Aquent also argues that even if Ms. Singh’s discrimination claim against AARP can

survive, Aquent cannot be held liable for AARP’s actions. The D.C. Circuit does not appear to

have directly addressed joint employment liability in this context, but case law from other Circuit

Courts of Appeals suggests that a staffing agency is only liable for the discriminatory conduct of

its joint-employer client if it (1) participated in the discrimination; or (2) knows or should have

known of the client’s discrimination but fails to take corrective measures within its control. See,

e.g., Nicholson v. Securitas Sec. Servs. USA, Inc.,

(5th Cir. 2016);

4 Aquent argues that Ms. Singh did not comply with Local Rule 7(h) when completing her statement of material facts, and therefore Aquent’s statement of material facts should be deemed admitted. Although the Court would have preferred Ms. Singh to address each of the defendants’ statements of material facts paragraph by paragraph, Local Rule 7(h) is not as strict as Aquent believes it to be. Although the format Ms. Singh chose did make it more difficult to establish which facts were contested and which were not, deeming defendants’ statements of material facts to have been admitted would be extreme and unjustified. Aquent would like the Court to believe that this is a commonplace remedy, but AARP’s choice not to mention this issue in its motion or reply is further confirmation that Aquent’s request is unreasonable.

16 Caldwell v. ServiceMaster Corp.,

(D.D.C. 1997). There is no evidence that

Aquent actually participated in any discriminatory conduct, so in order to prevail, Ms. Singh

must rely on the second prong of the test. Aquent does not dispute that it has joint employer

status with AARP, but it does dispute any liability for AARP’s conduct.

After viewing the available evidence in the light most favorable to Ms. Singh, the Court

finds that a reasonable juror could conclude that Aquent knew or should have known of AARP’s

discrimination5 and failed to take corrective measures within its control. Looking first at the

March 1, 2018 telephone conversation that Ms. Singh had with Ms. Tozzi, Ms. Singh and Ms.

Tozzi gave different accounts of this conversation during their depositions; however, for

summary judgment purposes, the Court must examine this evidence in the light most favorable to

Ms. Singh. Assuming that a jury believes Ms. Singh’s account of the conversation, that

conversation should have raised concerns about whether Ms. Bettencourt would respect Ms.

Singh’s rights as a pregnant contractor. As explained later in this Memorandum Opinion, this

conversation was insufficient to put Aquent on notice of any alleged retaliation, but Ms. Singh’s

repeated pleas to have Ms. Tozzi convey to Ms. Bettencourt that pregnant contractors have legal

rights is critical. At the very least, it shows that Ms. Singh was extremely concerned about how

Ms. Bettencourt would react to her pregnancy. In response to Ms. Singh’s concerns, Ms. Tozzi

reached out to Ms. Boltax (rather than Ms. Bettencourt as Ms. Singh allegedly requested) on

March 2, 2018. According to Ms. Singh, Ms. Boltax told Ms. Tozzi that Ms. Singh was “not

going anywhere” because she had “exactly the kind of writing and editing skills we’re looking

5 Of course, if a jury finds that AARP is not liable for discrimination, Aquent will not be liable for discrimination either; however, the Court has to assume for the purposes of analyzing the discrimination claim against Aquent that AARP is liable for discrimination. This section of the Memorandum Opinion is therefore written as if AARP has already been found liable for discrimination, but this should not be taken as any indication of what the Court believes a jury will actually find at trial.

17 for.”6 Singh Dep. at 156-57. Ms. Tozzi supposedly relayed this information to Ms. Singh, but

Ms. Tozzi never contacted Ms. Bettencourt as Ms. Singh requested. When Ms. Tozzi learned of

Ms. Singh’s termination via email on March 29, 2018, she expressed her surprise to Ms. Boltax,

and Ms. Tozzi called Ms. Singh the next day to inform her of AARP’s decision. Tozzi Dep. at

126-27. When Ms. Singh spoke with Ms. Tozzi after learning that she had been fired, Ms. Singh

allegedly said, “You don’t fire a woman who is six months pregnant, and you don’t tell me over

the past few weeks, ‘Lisa’s not going anywhere.’” Singh Dep. at 156-57. Ms. Singh allegedly

went on to ask if her abrupt job termination represented a value that Aquent was comfortable

with, and Ms. Tozzi supposedly replied, “Sadly, we see this more often than we like to, and most

clients come back and say it’s an ‘at-will state.’ Companies change and needs change, that’s just

how it goes. Unfortunately, that is likely what the response is going to be from [AARP].” Singh

Dec. ¶ 28. Ms. Tozzi has a different account of the conversation, claiming instead that Ms. Singh

“just started screaming” at her, but Ms. Tozzi’s deposition does not reveal many details about her

recollection of this conversation. Tozzi Dep. at 127. Of course, for the purposes of summary

judgment, the Court must assume that a jury will believe Ms. Singh’s account of the

conversation.

A reasonable juror could conclude that Ms. Singh’s concerns about Ms. Bettencourt’s

reaction to her pregnancy on the March 1, 2018 phone call,7 Ms. Boltax’s alleged assurances that

Ms. Singh’s job was safe before she learned of her pregnancy, and the surprising decision to

terminate Ms. Singh after learning of her pregnancy put Aquent on notice that AARP acted

discriminatorily. A reasonable juror could also potentially find that Ms. Tozzi’s response to Ms.

6 There appears to be some dispute about what exactly was said during that phone call, thus creating another factual question for the jury to resolve. 7 Again, the Court must assume that Ms. Singh’s account of that conversation with Ms. Tozzi is the one that the jury will believe.

18 Singh’s statement upon learning that she had been terminated indicated that Ms. Tozzi believed

AARP acted discriminatorily. Ms. Tozzi claims that she did not believe that the termination of

Ms. Singh’s assignment was related to her pregnancy, Tozzi Dep. at 134-135, but this is a matter

of witness credibility. Of course, a jury may examine this evidence and determine that Aquent

was not on notice of any discriminatory conduct by AARP; however, because a jury could find

that these conversations prove Aquent knew or should have known about AARP’s

discrimination, the Court must move to determining whether a reasonable jury could find that

Aquent failed to take corrective measures within its control.

The Court finds that a reasonable juror could conclude that Aquent failed to take

corrective measures within its control. For example, a jury may find that Ms. Tozzi should have

contacted Ms. Bettencourt (rather than just Ms. Boltax) like Ms. Singh requested on the March 1,

2018 phone call. Perhaps a jury will find that Ms. Tozzi’s request for feedback upon learning of

Ms. Singh’s termination was insufficient, and Aquent should have investigated the matter

further. Aquent claims that it was under no obligation to investigate because Ms. Singh never

formally requested an investigation, ECF No. 39 at 11-12, but a jury may disagree. Again, this is

not to say that a jury will find that Aquent failed to take corrective measures; however, the

possibility that a reasonable jury will reach that conclusion makes summary judgment for Aquent

inappropriate.

B. Aquent is Entitled to Summary Judgment on Ms. Singh’s Retaliation Claim.

Aquent argues that because Ms. Singh’s retaliation claim against AARP cannot survive

and her retaliation claim against Aquent is based on joint employer liability, it follows that her

retaliation claim against Aquent cannot survive. As explained above, however, AARP is not

19 entitled to summary judgment on the retaliation claim. Therefore, this preliminary argument is

invalid.

Aquent also argues that even if Ms. Singh’s retaliation claim against AARP can survive,

Aquent cannot be held liable for AARP’s actions. The same two-pronged test that applies to joint

employer discrimination claims also applies to joint employer retaliation claims. Like with the

joint employer discrimination claim, there is no evidence that Aquent participated in any

retaliatory activity or had any independent retaliatory motive, so Ms. Singh must rely on the

second prong of the test.

After examining the available evidence, the Court finds that no reasonable juror could

conclude that Aquent knew or should have known of AARP’s retaliation, nor could a reasonable

juror find that Aquent failed to take corrective measures within its control. Ms. Singh points to

the conversation that she had with Ms. Tozzi on March 1, 2018, claiming that this conversation

sufficiently informed Aquent of the pregnancy discrimination allegations she made against Ms.

Bettencourt four years earlier. Even assuming that a jury believes Ms. Singh’s account of this

conversation over Ms. Tozzi’s account of this conversation, it is still insufficient. When asked

during her deposition if she disclosed the pregnancy discrimination allegations that she made

against Ms. Bettencourt at Travel Channel, Ms. Singh answered:

I didn’t phrase it that way.

I said to Tina [Tozzi], in that early March conversation, that I have a history with Jodi [Bettencourt]. I don’t think she understands that someone who is a contractor, even a contractor has certain rights if they are pregnant. Can you please let her know that there are certain fundamental rights that are in place.

What I expressed and verbalized to her is, I’ve just gotten an email, like everyone else. And it says Jodi Bettencourt is going to be our new manager. We’re meeting with her in less than one hour. I need her to know that I have – she needs to know that even as a contractor, I have certain rights during this pregnancy. She may not

20 know that based on what I experienced with her at Travel Channel . . . Can you please convey that to Ms. Bettencourt.

Singh Dep. at 153.

Although this conversation (as Ms. Singh relays it) suggests a negative history with Ms.

Bettencourt and implies that Ms. Singh did not believe Ms. Bettencourt would respect her rights

as a pregnant contractor, it does not suggest that Ms. Singh made any kind of formal complaint

against Ms. Bettencourt, nor does it mention the settlement agreement with Travel Channel. No

reasonable juror could expect Aquent to infer from this conversation that Ms. Singh had engaged

in statutorily protected activity with respect to Ms. Bettencourt. Ms. Singh can point to no other

conversation or piece of evidence that should have put Aquent on notice of the fact that she

engaged in statutorily protected activity in the past. Because Aquent did not know about what

happened at Travel Channel (nor should it be expected to have known), it could not have taken

any corrective measures with respect to AARP’s alleged retaliation. In making this finding, the

Court is not merely weighing the evidence—rather, it is making a determination that there is no

evidence sufficient to support Ms. Singh’s allegations of retaliation against Aquent. Even when

viewing the available evidence in the light most favorable to Ms. Singh, her retaliation claim

against Aquent still fails as a matter of law. Therefore, judgment for Aquent on Count II is

appropriate.

CONCLUSION

Based on the foregoing, the Court will DENY American Association of Retired Persons,

Inc.’s Motion for Summary Judgment (ECF No. 28) on both Count I (Discrimination) and Count

II (Retaliation).

21 The Court will GRANT IN PART AND DENY IN PART Aquent, LLC’s Motion for

Summary Judgment (ECF No. 27). Aquent, LLC’s Motion for Summary Judgment on Count I

(Discrimination) will be DENIED. Aquent, LLC’s Motion for Summary Judgment on Count II

(Retaliation) will be GRANTED.

It will be ORDERED that Count II (Retaliation) against Aquent, LLC is DISMISSED

WITH PREJUDICE. It will be further ORDERED that JUDGMENT is entered for Aquent,

LLC on Count II (Retaliation).

A separate Order accompanies this Memorandum Opinion.

Date: April 17, 2020 sssssssssssssss/s/sssssssssssssssss Royce C. Lamberth United States District Court Judge

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