UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL S. LANE,

Plaintiff, v. Civ. Action No. 17-01484 DISTRICT OF COLUMBIA, (EGS) Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Michael Lane (“Mr. Lane”) brings this action

against Defendant the District of Columbia (“the District”)

alleging: (1) age discrimination 1 in violation of the Age

Discrimination in Employment Act of 1997, (“ADEA”),

(a) et seq., and the District of Columbia Human Rights Act

(“DCHRA”),

, et seq.; (2) retaliation for

complaining about the discrimination when he was terminated in

violation of the ADEA and DCHRA as well as

and

1983; and (3) Misuse and Diversion of Government Funds. See

generally, Am. Compl., ECF No. 1-1.

Pending before the Court is the District’s Motion for

Summary Judgment. See Def.’s Mot., ECF No. 22. The Court has

1 Mr. Lane withdrew his discrimination and retaliation claims based on race. See Pl.’s Opp’n, ECF No. 26 n.1. carefully considered the motion, the response and reply thereto,

the applicable law, and the entire record herein. The Court

GRANTS the District’s Motion for Summary Judgment. Additionally,

the Court DISMISSES Mr. Lane’s claim of misuse and diversion of

government funds.

II. Background

A. Factual Background

Except where indicated, the following material facts are

not in dispute. At all relevant times, Mr. Lane was over 40

years of age. 2 See Am. Compl., ECF No. 1-1 ¶ 7. In 2003, Mr. Lane

was hired by the District of Columbia Public Schools (DCPS) as

an Architect on the Education Service System (EG) pay scale at a

Grade 13, Step 10. Pl.’s Summary and Response to Def.’s

Statement of Undisputed Facts (“SOF”), ECF No. 26-1 ¶ 1. Mr.

Lane’s position was subsequently transferred from DCPS to the

Office of Public Education Facilities Management (“OPEFM”) 3 and

he remained on the EG pay scale.

.

Thereafter, effective October 1, 2011, Mr. Lane’s position

was transferred from OPEFM to the Department of General Services

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document with the exception of deposition testimony, which is to the page number of the deposition transcript. 3 Mr. Lane disputes this, but what he states that he remained on the DCPS payroll and pay scale and his position continued to be funded by the DCPS budget. SOF, ECF No. 26-1 ¶ 2. Accordingly, it is undisputed that Mr. Lane was transferred to OPEFM.

2 (“DGS”), a newly created agency. See Agency Response to EEOC

Charge (“Agency Response”), ECF No. 22-5 at 2. 4 At DGS, Mr. Lane

was assigned to the DGS Capital Construction Division (“CCD”).

SOF, ECF No. 26-1 ¶ 5. When he was transferred to DGS, there was

no change in his pay, grade, title, and series.

.

Mr. Lane was a member of a collective bargaining unit,

represented by the Teamsters, and the compensation of the unit

was based on the EG pay scale. 5 See Agency Response, ECF No. 22-5

at 6. Mr. Lane’s membership in this unit restricted DGS’s

4 Mr. Lane disputes this, but what he states is that his “function and job title were transferred to DGC, but Plaintiff and his colleagues remained on an inactive DCPS EG pay scale, while their colleagues in DGS were paid on the [Career Services (“CS”)] pay scale.”

That Mr. Lane remained on the EG pay scale is undisputed. Owens Dep., ECF No. 26-3 at 17:16-18 (“Employees who came from OPEFM and DCPS were on the EG pay scale.”). 5 Mr. Lane disputes this, pointing to his deposition testimony

where he stated that from 2008 to 2011, while he was at OPEFM, he did not receive any cost of living adjustments. Lane Dep., ECF No. 26-2 at 63:5-13. He also points to the following evidence: (1) FY 2009-FY 2012 District of Columbia Salary Schedule for Comp Unit Exhibit 4, ECF No. 26-6 at 4-14; (2) FY 2008 – OPEM Budget v. Expenditures, Exhibit 5, ECF No. 26-6 at 21-26; (3) Mr. Lane’s April 18, 2014 pay stub, Exhibit 6, ECF No. 26-6 at 28; (4) FY 2006, 2008, DCPS Non Union Educational Service Employees pay scale steps, Exhibit 7, ECF No. 26-6 at 30-31; (5) An Addendum directing DCHR to place certain bargaining unit employees on appropriate compensation units beginning October 5, 2014, Exhibit 20, ECF No. 26-9 at 13-15; and (6) A list of Capital Construction Division Vacancies from 10/1/2011-09/30/2014, Exhibit 21, ECF No. 26-9 at 18. This evidence does not rebut the fact that compensation for the bargaining unit in which Mr. Lane was a member was based on the EG pay scale.

3 ability to change his salary or position. 6 See

On February

20, 2014, the Teamsters notified OPEFM that it disclaimed any

interest in representing the collective bargaining unit. See

Letter from Warehouse Employees Union to Dean Aqui, Office of

Public Education Facilities Management (“Teamster Letter”) (Feb.

20, 2014), ECF No. 22-6 at 1. As a result of this disclaimer,

Mr. Lane’s compensation was exclusively governed by the District

Personnel Manual, which requires a competitive process to move

Mr. Lane to a new pay plan. 7 See Agency Response, ECF No. 22-5 at

6.

Effective January 2, 2014, DGS was approved for

“realignment,” meaning that, with regard to Mr. Lane, his EG pay

scale position would be abolished and he “would be allowed to

move competitively to newly established other existing titles,

series and grades” and would face no monetary loss. See

Memorandum from DGS Interim Director to the City Administrator

on the Request for Approval of Reduction-in-Force Within the

Department of General Services (“RIF Memorandum”) (May 11,

6 Mr. Lane disputes this, asserting that “new hires into the collective bargaining unit were not put on the same EG pay scale.” SOF, ECF No. 26-1 ¶ 9. However, the deposition transcript cite Mr. Lane relies on does not support his assertion. See Owens Dep., ECF No. 26-3 at 17. 7 Mr. Lane disputes this, asserting that the provisions of

Chapter 8 were generally applicable throughout his tenure. SOF, ECF No. 26-1 ¶ 13. However, Mr. Lane’s position is consistent with his compensation being “exclusively” governed by the manual following the Union’s disclaimer.

4 2015), ECF No. 22-8 at 1. Mr. Lane disputes that a realignment

occurred. SOF, ECF No. 26-1 ¶ 10.

DGS did not have the regulatory authority to move Mr. Lane

to the CS pay scale other than through a competitive process.

See Agency Response, ECF No. 22-5 at 6. Accordingly, “DGS

identified comparable positions in the new proposed structure

which would ensure that the impacted employees would not lose

jobs or face a salary loss in a realignment” and “proposed to

permit the impacted employees to move competitively to the newly

established or other exiting titles, series and grades in the

realigned DGS.” Agency Response, ECF No. 22-5 at 3. Mr. Lane

disputes that a competitive process was required. SOF, ECF No.

26-1 ¶ 14. Mr. Lane also disputes that the jobs were comparable

because they consisted of “the same work but at a demoted

position and a depressed wage rate.” SOF, ECF No. 26-1 ¶ 15.

When the realignment began, 34 employees were still on the

EG pay scale. See RIF Memorandum, ECF No. 22-8 at 2.

In 2014, Mr. Lane applied for a CS 13 Architect Position and he

was selected for the position. See Lane Dep., ECF No. 22-4 at

79:4-5. Mr. Lane declined the position because it was at a step

two whereas his EG position was at a step 10. See

.

The CS 13 step two position had a higher salary than Mr. Lane’s

EG 13 step 10 position. See

. While employed at

DGS, Mr. Lane was eligible to apply for 11 positions at the CS

5 13 through CS 15 level. 8 See SOF, ECF No. 26-1 ¶ 19. Mr. Lane did

not apply for any of these positions. See

. 9 “Of the

eleven new hires[,] eight were over the age of forty (40), and

ranged in age from 40 to 56 years old.” 10 See Agency Response,

ECF No. 22-5 at 6. They “were given salaries commensurate with

their depth and quality of directly related experience,

education, certifications and prior salary.”

.

As of May 11, 2015, DGS realigned all but seven employees

from the EG pay plan to the CS pay plan. See RIF Memorandum, ECF

No. 22-8 at 2. Mr. Lane asserts that in 2014, the ages of the

seven employees ranged from 47 to 68. Pl.’s Opp’n, ECF No. 26 at

16. In seeking approval for a RIF to abolish these seven

positions, DGS stated:

Although positions have been identified for these EG employees, they have either not applied for an available position or have applied and been selected for a position, but refused to accept the salary and position offered. Despite our repeated discussions with these employees to address and resolve an remaining issues, the employees have chosen to

8 Mr. Lane disputes this, asserting that accepting such a position would mean a demotion and forgone compensation. SOF, ECF No. 26-1 ¶ 20. This, however, does not rebut the factual statement. 9 Mr. Lane disputes this, pointing to his 2014 application. SOF,

ECF No. 26-1 ¶ 26. That he applied for a position in 2014 does not rebut the factual statement. 10 The District also states that the persons selected for these positions ranged in age from 41 to 81 years of age. See Agency Response, ECF No. 22-5 at 5. Mr. Lane did not provide any evidence showing the ages of the persons selected. See generally SOF, ECF No. 26-1.

6 maintain their status as EG employees. Their actions have effectively stymied DGS’ ability to bring closure to our realignment implementation activities.

RIF Memorandum, ECF No. 22-8 at 2.

On June 1, 2015, Mr. Lane was informed that his separation

from District government service would be effective July 2,

2015. See Letter from DGS to Michael Lane (“Separation Letter”)

(June 1, 2015), ECF No. 22-9 at 1. The letter further informed

him that he “ha[d] a right to priority placement consideration

through the Agency Reemployment Priority Program” (“ARPP”).

.

On June 17, 2015, Mr. Lane was informed that he had been

selected for a Project Manager position at CS 13, step 1, at an

annual salary of $76,397, a higher salary than Mr. Lane had been

earning, and that the effective start date of his appointment

was June 28, 2015. See Letter from DGS to Michael Lane (“Offer

Letter”) (June 17, 2015), ECF No. 22-10 at 1; see also SOF, ECF

No. 26-1 ¶ 33. The offer letter explains that:

This offer of employment is being extended to you under the Agency Reemployment Priority Program (ARPP) that has been established in the Department of General Services. The ARPP provides assistance to employees who will or have been affected by a reduction-in-force (RIF). The ARPP provides employees or former employees separated in tenure groups I and groups II with reemployment priority consideration for vacancies within the agency, as provided in Chapter 24 of the regulations. Employees are automatically entered on the

7 reemployment priority list immediately after it has been determined that the employee is to be adversely affected by a reduction-in-force and not later than the issuance of the notice of reduction-in-force.

Offer Letter, ECF No. 22-10 at 1. Mr. Lane did not accept this

position. See SOF, ECF No. 26-1 ¶ 34.

B. Procedural History

Following the District’s removal of this case from the

Superior Court of the District of Columbia, the Complaint was

filed in this Court on July 25, 2017. See Am. Compl., ECF No. 1-

1. The District filed its Motion for Summary Judgment on

November 25, 2019. See Def.’s Mot., ECF No. 22. Mr. Lane filed

his Opposition Response on February 19, 2020, see Pl.’s Opp’n,

ECF No. 26; and the District filed its Reply on March 16, 2020.

See Def.’s Reply, ECF No. 27. The motion is ripe and ready for

the Court’s adjudication.

III. Legal Standard

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

Waterhouse v. District of Columbia,

(D.C. Cir.

2002). The moving party must identify “those portions of the

pleadings, depositions, answers to interrogatories, and

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

8 it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

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

judgment, the nonmoving party must demonstrate that there is a

genuine issue of material fact.

. A material fact is

one that is capable of affecting the outcome of the

litigation. Anderson v. Liberty Lobby, Inc.,

(1986). Mere conclusory allegations with no factual basis are

not sufficient to overcome a motion for summary judgment. Diaz

v. Washington Metro. Area Transit Auth.,

(D.D.C. 2017) (quoting Ass’n of Flight Attendants-CWA, AFL-CIO

v. United States Dep’t of Transp.,

(D.C. Cir.

2009)). A genuine dispute is one where “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.”

Further, in the summary judgment analysis “[t]he

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

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

255.

IV. Analysis

A. Mr. Lane’s Discrimination Claims Arising Out of the Failure to Convert His Position From the EG Pay Scale to the CS Pay Scale and Associated Loss of Compensation Are Time Barred

The District argues that Mr. Lane’s claims regarding the

District’s failure to convert his position from the EG pay scale

9 to the CS pay scale when he was transferred from OPEFM to DGS on

October 1, 2011 are time barred because he did not file a claim

with the EEOC until 2016. See Def.’s Mot., ECF No. 22 at 12. Mr.

Lane contends that the “seminal” discriminatory act occurred in

2007, when he was transferred from DCPS to OPEFM, but was not

moved to the CS pay scale, and that his claims are not time

barred because the Lilly Ledbetter Fair Pay Act applies to his

claims. See Pl.’s Opp’n, ECF No. 26 at 26.

An employee must first exhaust administrative remedies with

the EEOC within 180 days of the unlawful employment practice,

but if the plaintiff has first instituted proceedings with a

state or local agency, the period is extended to 300 days.

Cooper v. Henderson,

(D.D.C. 2018)

(Sullivan, J.). A discrete retaliatory or discriminatory act

occurs on the day it happened, and each discrete act starts a

new clock. National R.R. Passenger Corp. v. Morgan,

(2002). The Lilly Ledbetter Fair Pay Act allows

for the statute of limitations to reset with each paycheck that

is the result of a discriminatory compensation decision, thereby

extending the amount of time in which the plaintiff can file a

complaint. See 42 U.S.C. § 2000e-5(e)(3)(A). For the Lilly

Ledbetter Fair Pay Act to apply, Mr. Lane “must bring a claim

involving discrimination in compensation and point to a

discriminatory compensation decision or other practice.” Schuler

10 v. PricewaterhouseCoopers, LLP,

(D.C. Cir.

2010) (internal quotation marks omitted). “Discrimination in

compensation means paying different wages or providing different

benefits to similarly situated employees.”

(internal

quotation marks omitted).

With regard to Mr. Lane’s transfer from DCPS to OPEFM in

2007, it is undisputed that similarly situated employees—the

DCPS CCD employees who were transferred from DCPS to OPEFM—were

not converted to the CS pay scale. Lane Dep., ECF No. 26-2 at

57-59. Following the transfer, the Teamsters began negotiations

regarding converting the CCD employees to the CS pay scale. See

id. at 53-54. On October 1, 2011, Mr. Lane and other CCD

employees were transferred from OPEFM to DGS. See SOF, ECF No.

26-1 ¶ 4. In February 2014, the Teamsters disclaimed any further

interest in representing this group of employees. See Teamsters

Letter, ECF No. 22-6 at 1. In January 2014, DGS initiated a

realignment to address, among other things, the 34 DGS employees

still on the EG pay scale. See RIF Memorandum, ECF No. 26-9 at

2. As of May 11, 2015, all but seven employees had been moved

from the EG pay scale to the CS pay scale. See id.

The undisputed facts show that the failure to automatically

convert Mr. Lane from the EG pay scale to the CS pay scale did

not constitute “discrimination in compensation” because Mr. Lane

was not paid different wages from similarly situated employees,

11 specifically, the DCPS CCD employees who were transferred from

DCPS to OPEFM, and then from OPEFM to DGS, and were not

converted to the CS pay scale. See Schuler,

(D.C. Cir. 2010). The Lilly Ledbetter Fair Pay Act therefore

does not apply.

The discriminatory acts—the failure to convert Mr. Lane

from the EG pay scale to the CS pay scale in 2007 and in 2011—

occurred on the date of the transfer from DCPS to OPEFM and then

on the date of the transfer from OPEFM to DGS respectively. Mr.

Lane states that he contacted the Equal Employment Opportunity

Commission (“EEOC”) on or about January 29, 2016 and

subsequently filed a claim of discrimination, which was cross-

filed with the District of Columbia Office of Human Rights

(“DCOHR”). Am. Compl., ECF No. 1-1 ¶ 5. Since the allegedly

discriminatory acts occurred in 2007 and 2011, but Mr. Lane did

not file a claim with the EEOC or with DCOHR until years later,

Mr. Lane’s discrimination claims based on the failure to convert

his position from the EG pay scale to the CS pay scale and

associated loss of compensation are time barred.

12 B. Mr. Lane Has Failed to Produce Sufficient Evidence From Which a Reasonable Jury Could Find that the District’s Stated Reasons For Allegedly Demoting Him and Then Terminating Him Were Pretext for Discrimination Based on Age

1. Legal Standards

Under the ADEA, it is unlawful for an employer to:

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.

(a)(1)-(3).

The DCHRA prohibits certain discriminatory practices “[b]y

an employer,” making it unlawful for an employer to “fail or

refuse to hire, or to discharge, any individual; or otherwise

discriminate against any individual, with respect to his

compensation, terms, conditions, or privileges of employment”

based upon several protected categories including the person’s

age. D.C. Code § 2–1402.11(a)(1). When construing provisions of

the D.C. Code—including the DCHRA—this Circuit “defer[s] to the

District of Columbia Court of Appeals on questions of statutory

interpretation.” United States v. Edmond,

(D.C.Cir. 1991). District of Columbia courts look to cases

13 construing Title VII in construing the DCHRA, see Arthur Young &

Co. v. Sutherland,

, 361 n.17 (D.C. 1993); as ‘[t]he

anti-discrimination provisions of both statutes are

substantially similar,

(citation omitted). Accordingly, the

McDonnell-Douglas burden-shifting framework governs the

analysis. Cain v. Reinoso,

(D.C. 2012).

To establish a prima facie case of discrimination, the

plaintiff must show: “(1) she is a member of a protected class;

(2) she suffered an adverse employment action; and (3) the

circumstances gave rise to an inference of discrimination.”

Stella v. Mineta,

(D.C. Cir. 2002), see also

Kumar v. Dist’ of Columbia Water & Sewer Auth.,

(D.C. 2011) (same).

Discrimination and retaliation claims are subject to the

burden-shifting framework set forth in McDonnell Douglas Corp.

v. Green,

, 802–05 (1973). The Court of Appeals for

the District of Columbia Circuit has instructed that if a

plaintiff establishes a prima facie case,

the burden shifts to the employer to identify the legitimate, nondiscriminatory or non- retaliatory reason on which it relied in taking the complained-of action. Holcomb v. Powell,

(D.C. Cir. 2006). Assuming the employer proffers such a reason, the “central question” at summary judgment becomes whether “the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory or nonretaliatory reason

14 was not the actual reason and that the employer intentionally discriminated or retaliated against the employee.” Allen v. Johnson,

, No. 13–5170,

(D.C. Cir. July 24, 2015) (brackets omitted) (quoting Brady, 520 F.3d at 494); see also Hamilton, 666 F.3d at 1351.

A plaintiff may support an inference that the employer's stated reasons were pretextual, and the real reasons were prohibited discrimination or retaliation, by citing 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, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive.

Walker v. Johnson,

(D.C. Cir. 2015). The

Court may not “second-guess an employer’s personnel decision

absent demonstrably discriminatory motive.” Fischbach v.

District of Columbia Dep’t of Corr.,

(D.C.

Cir. 1996) (internal quotation marks and citation omitted).

“Once the employer has articulated a non-discriminatory

explanation for its action, as did the [employer] here, the

issue is not the correctness or desirability of [the] reasons

offered . . . [but] whether the employer honestly believes the

reasons it offers.”

An inference of pretext could be

appropriate where “the employer made an error too obvious to be

unintentional” because in such a situation, “perhaps [the

employer] had an unlawful motive for doing so.”

15 2. Analysis

Mr. Lane claims that he was discriminated against based on

his age when he was allegedly demoted and then ultimately

terminated. See Am. Compl., ECF No. 1-1 ¶ 58.

The District asserts that its legitimate, non-

discriminatory reason for eliminating Mr. Lane’s position

through a RIF was because of adverse impact “the defunct EG pay

scale was having on the agency’s realignment.” Def.’s Mot., ECF

No. 22 at 2. “Being both reasonable and non-discriminatory,”

Fischbach v. District of Columbia Dept. of Corrections,

(D.C. Cir. 1996); Mr. Lane must now “‘produce[]

sufficient evidence for a reasonable jury to find that the

employer's asserted nondiscriminatory [or nonretaliatory] reason

was not the actual reason and that the employer intentionally

discriminated [or retaliated] against the employee.’” Allen v.

Johnson,

(D.C. Cir. 2015) (quoting Brady v.

Office of Sergeant at Arms,

(D.C. Cir. 2008)).

Mr. Lane asserts that after the Teamsters disavowed

representation, seven employees remained on the EG pay scale,

half of whom were over age 60. See Pl.’s Opp’n, ECF No. 26 at

16. Mr. Lane argues that the there was no requirement for

competitive bidding to transfer employees to the CS pay scale.

See SOF, ECF No. 26-1 ¶ 14. To support his argument, Mr. Lane

makes a number of assertions and points to evidence he contends

16 supports his position. First, Mr. Lane asserts that many

employees were transferred without competitive bidding. Id. at

17. However, the evidence he points to—the deposition of Latrena

Owens, who was certified as the Rule 30(b)(6) deponent to speak

on behalf of the District—does not support his assertion. See

Owens Dep., ECF No. 26-3 at 7:3-10. Rather, Ms. Owens quoted the

language in the RIF Memorandum stating that all but seven of the

34 employees transferred from OPEFM to DGS were transitioned to

CS positions in the realignment. See Owens Dep., ECF No. 26-3 at

28:16-19. Second, Mr. Lane points to his own deposition

testimony. See Lane Dep., ECF No. 26-2 at 105. The cite does not

support this assertion, but even if it did, his own self-serving

assertions do not give rise to a triable issue of fact. Toomer

v. Mattis,

(D.D.C. 2017) (Sullivan,

J.). Third, Mr. Lane points to an October 8, 2013 DGS

realignment request. See Memorandum From DGS Director to City

Administrator, Request for Approval of Realignment within the

Department of General Services, (Oct. 8, 2013), ECF No. 26-8 at

20. However, the Memorandum states the opposite of what Mr. Lane

contends: “[i]n order to appropriately place the EG employees

within the career service, employees will be selected for

positions in the new structure through competitive means.”

Fourth, Mr. Lane points to the October 1, 2008 through September

2012 Teamsters Collective Bargaining Proposal which, among other

17 things, proposed the promotion of EG professionals to CS

positions at current grade and step effective FY 2009. See Union

Proposal for a Collective Bargaining Agreement, ECF No. 26-6 at

57. However, Mr. Lane does not point to any evidence indicating

that this proposal was adopted. Finally, Mr. Lane argues that

the District was wrong to interpret the applicable regulations

to require competitive bidding to move the EG pay scale

employees to the CS pay scale. See Pl.’s Opp’n, ECF No. 26 at

17-18.

Mr. Lane has provided no evidence that calls into question

that the District honestly believed that it needed to eliminate

the EG pay scale positions so that it could complete its

realignment and that employees could only be moved from the EG

pay scale to the CS pay scale through a competitive process. See

Fischbach,

. None of the evidence he points to

supports his assertion that a competitive process was not

required to transfer from the EG pay scale to the CS pay scale.

And his opinion that the District was wrong in how it

interpreted the applicable regulations does not call into

questions that the District honestly believed what the

regulations required.

18 Mr. Lane would have the Court infer discriminatory intent

because the District “articulate[d] no legitimate reason to

demote and remove ranking steps from Mr. Lane related to his job

skills or performance” because the EG pay scale and CS pay scale

job descriptions are nearly identical. Pl.’s Opp’n, ECF No. 26

at 19. Even if the job descriptions are nearly identical, it is

undisputed that DGS needed to move the remaining employees from

a defunct pay scale to the CS pay scale. While it is undisputed

that CS pay scale position was at a lower grade but higher

salary than the EG pay scale position, Mr. Lane has provided no

support for his position that a lower grade on a different pay

scale at a higher salary constitutes a demotion.

Further evidence of discriminatory intent, according to Mr.

Lane, is that new hires on the CS pay scale “were given market-

rate salaries while the same was denied to [him] and his

colleagues. They were also given COLA increases and promotion

opportunities that were denied to [him].” SOF, ECF No. 26-1 ¶

25. Mr. Lane also contends that the new hires had less

experience and were younger than him; some of whom earned more

money than he did. See Pl.’s Opp’n, ECF No. 26 at 20 (citing

Exhibits 20, 21, 22). However, Mr. Lane has provided no evidence

to support these assertions. Exhibit 20 is an Addendum directing

DCHR to place certain bargaining unit employees on appropriate

compensation units beginning October 5, 2014. The Addendum

19 provides the name and position of a list of employees, indicates

their grade, step and salary, with a hand-written notation of

“New Hire” next to some employees. See Exhibit 20, ECF No. 26-9

at 13-15. Exhibit 21 is a list of CCD Vacancies from 10/1/2011-

09/30/2014. See Exhibit 21, ECF No. 26-9 at 18. Exhibit 22 is a

June 13, 2013 “Frequently Asked Questions” regarding Pay

Increase for District Government Employees. See Exhibit 22, ECF

No. 26-9 at 20-22. None of this evidence supports Mr. Lane’s

assertions that the new hires on the CS pay scale were given

market rate salaries that were denied to him and that they had

less experience and were younger than Mr. Lane. Furthermore, it

is undisputed that the CS pay scale positions Mr. Lane was

offered were at a higher salary than his EG pay scale position.

Mr. Lane has failed to present evidence from which “a

reasonable jury could not only disbelieve the employer's

reasons, but conclude that the real reason the employer took a

challenged action was a prohibited one.” Walker,

. Accordingly, the District’s Motion for Summary Judgment as

to Mr. Lane’s discrimination claim is GRANTED.

20 C. Mr. Lane has Failed to Produce Sufficient Evidence From Which a Reasonable Jury Could Find that the District’s Stated Reasons for Terminating Him Were Pretext for Retaliation For Having Engaged in Protected Activity

1. Legal Standards

“To prove retaliation [under the ADEA], the plaintiff

generally must establish that he or she suffered (i) a

materially adverse action (ii) because he or she had brought or

threatened to bring a discrimination claim.” Baloch v.

Kempthorne,

(D.C. Cir. 2008). “Under the

DCHRA, it an unlawful discriminatory practice for an employer to

retaliate against a person on account of that person’s

opposition to any practice made unlawful by the DCHRA.” Howard

University v. Green,

(D.C. 1994). Consistent

with the McDonnell-Douglas burden-shifting framework, once the

defendant “assert[s] legitimate, nondiscriminatory reasons for

[its actions],” the plaintiff must “produce sufficient evidence

that would discredit those reasons and show that the actions

were retaliatory.” Baloch,

(citations omitted.)

As with a discrimination claim, the Court may not “second-

guess an employer’s personnel decision absent demonstrably

discriminatory motive.” Fischbach v. District of Columbia Dep’t

of Corr.,

(D.C. Cir. 1996) (internal

quotation marks and citation omitted). “Once the employer has

articulated a non-discriminatory explanation for its action, as

21 did the [employer] here, the issue is not the correctness or

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

employer honestly believes the reasons it offers.”

An

inference of pretext could be appropriate where “the employer

made an error too obvious to be unintentional” because in such a

situation, “perhaps [the employer] had an unlawful motive for

doing so.” Id.

2. Analysis

Mr. Lane alleges that he was retaliated against for having

engaged in protected activity when his position was eliminated

through an allegedly illegal RIF. See Am. Compl., ECF No. 1-1 ¶

21. The District responds that it had a legitimate, non-

retaliatory reason for the RIF. Def.’s Mot., ECF No. 22 at 20-

21. Specifically, “having seven employees (including [Mr. Lane])

remaining on the EG pay scale presented an impediment to DGS’s

reorganization and realignment.” Id. at 21. Accordingly, DGS

proposed, and the City Administrator and Interim Director of

Human Resources approved, a RIF to eliminate these positions. 11

11While the District argues that Mr. Lane made not made out a prima facie case because he has not demonstrated that the persons who approved the RIF knew about his protected activity, see Def.’s Mot., ECF No. 22 at 20; whether or not he has made out a prima facie case is not relevant at this point because the District has “asserted a legitimate, non-discriminatory reason for” terminating Mr. Lane. Accordingly, the Court need not examine whether Mr. Lane made out a prima facie case of retaliation as it is “no longer relevant.” Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008).

22 “Being both reasonable and non-discriminatory,” Fischbach v.

District of Columbia Dept. of Corrections,

(D.C. Cir. 1996); Mr. Lane must now “‘produce[] sufficient

evidence for a reasonable jury to find that the employer's

asserted nondiscriminatory or nonretaliatory reason was not the

actual reason and that the employer intentionally discriminated

or retaliated against the employee.’” Allen,

.

Mr. Lane argues that the RIF eliminating the positions was

a “ruse” because “[t]he work did not go away. Rather[,] the

employees were notified of termination . . . and then notified

of being offered a new lower level position on the CS pay

scale.” Pl.’s Opp’n, ECF No. 26 at 24. He also claims that

“neither [he], nor any of his colleagues actually ‘competitively

bid’ for the positions they were offered on rehire,” and that

this demonstrates that if the District could terminate him and

then offer him a CS pay scale position, as occurred here, “it

always had the ability to do so.”

In support of his arguments, Mr. Lane relies on the

testimony of Ms. Owens, who testified that DGS received

“permission to RIF [the seven employees]. However, the positions

were posted simultaneously so the people could apply for the

positions, and while [they] may have been RIF’d, they still did

not miss any money because if [they] applied for [their] job and

accepted it, [they] could just come back to work.”

at 122:7-

23 13. Ms. Owens further testified that DGS “needed [the seven

employees] to come into the larger alignment.”

.

In response to whether what occurred was really a RIF since the

work still needed to be done, Ms. Owens testified that “it was

really a realignment, and it would have been a reduction in

force based just upon the EG positions.”

.

Here, Mr. Lane would have the Court infer that the

District’s proffered reasons are pretextual because although the

positions on the EG pay scale were eliminated, but the work

still needed to be done, the elimination of the positions was a

pretext for retaliating against him for having engaged in

protected activity. However, Mr. Lane has provided no evidence

that calls into question that the District honestly believed

that it needed to eliminate the EG pay scale positions so that

it could complete its realignment. See Fischbach,

. And while Mr. Lane disputes that a realignment occurred,

he has provided no evidence that calls into question that the

District honestly believed that it was engaging in a

realignment. See

The undisputed evidence shows that the

realignment resulted in the elimination of the EG positions and

the creation of comparable CS positions.

Mr. Lane would also have the Court infer that because

“neither [he], nor any of his colleagues actually ‘competitively

bid’ for the positions they were offered on rehire,” Pl.’s

24 Opp’n, ECF No. 26 at 24; the elimination of the positions was

pretext for retaliating against him for having engaged in

protected activity. However, the Separation Letter informed Mr.

Lane that he “ha[d] a right to priority placement consideration

through the [ARPP],” Separation Letter, ECF No. 22-9 at 2; and

the Offer Letter informed him that he had been “automatically

entered on the reemployment priority list,” Offer Letter, ECF

No. 22-10 at 1. Mr. Lane has provided no evidence that calls

into question that the District honestly believed he was

entitled to be offered this position through the AARP. See

Fischbach,

.

Finally, Mr. Lane would have the Court infer that because

he was offered a position on the CS pay scale at a higher salary

but lower grade than his EG pay scale grade, this demonstrates

pretext for retaliating against him for having engaged in

protected activity. The District has explained that it needed to

eliminate the EG pay scale positions so that it could complete

the implementation of the realignment. RIF Memorandum, ECF No.

22-8 at 8. Mr. Lane has provided no evidence that calls into

question that the District honestly believed that it needed to

eliminate the remaining seven EG pay scale positions to complete

its realignment. Fischbach,

.

Mr. Lane has failed to present evidence from which “a

reasonable jury could not only disbelieve the employer's

25 reasons, but conclude that the real reason the employer took a

challenged action was a prohibited one.” Walker,

. Accordingly, the District’s Motion for Summary Judgment as

to Mr. Lane’s retaliation claim is GRANTED.

D. Mr. Lane’s § 1981 and § 1983 Claims

The District did not move for summary judgment on Mr.

Lane’s claims that he was retaliated against in violation of

and

, explaining in its Reply

brief that it inadvertently failed to do so. See Reply, ECF No.

27 at 5. However, the precedent in this Circuit is that courts

should not address arguments raised for the first time in a

reply brief, and the Court declines to do so here. See, e.g.,

McBride v. Merrell Dow & Pharm.,

(D.C. Cir.

1986) (“Considering an argument advanced for the first time in a

reply brief ... is not only unfair to [a defendant], but also

entails the risk of an improvident or ill-advised opinion on the

legal issues tendered.” (citation omitted)); Conservation Force

v. Salazar,

(D.D.C. 2013), aff'd

(D.C. Cir. 2012) (forfeiting an argument made for the first

time in a reply brief); see also Jones v. Mukasey,

(D.D.C. 2008) (holding that D.C. precedent

consistently submits that courts should not address arguments

raised for the first time in a party's reply). Accordingly, the

parties will be ordered to file, by no later than 14 days

26 following the entry of this Memorandum Opinion and accompanying

Order, a Joint Status Report with recommendations for further

proceedings with regard to Mr. Lane’s remaining retaliation

claims in violation of

and

.

E. Mr. Lane’s Claim for Misuse of Government Funds Is Dismissed

In Count IV, Mr. Lane alleges misuse and diversion of

government funds, seeking an order from the Court requiring the

District “to restore funds authorized for [his] position in the

budgets for fiscal years 2013-2016,” and enjoining the District

“from terminating jobs which would have otherwise been properly

funded and preserved except for its illegal reallocation of said

funds.” Am. Compl., ECF No. 101 ¶ 87. The District seeks

dismissal of this claim, arguing that Mr. Lane cannot maintain a

claim against the District for misuse and diversion of

government funds because there is no private cause of action for

alleged misuse and diversion of government funds in the civil

context. See Def.’s Mot., ECF No. 22 at 21.

A complaint must contain "a short and plain statement of

the claim showing that the pleader is entitled to relief, in

order to give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests." Bell Atl. Corp. v.

Twombly,

, (2007) (internal quotation marks

omitted). Despite this liberal pleading standard, to survive a

27 motion to dismiss, a complaint "must contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face." Ashcroft v. Iqbal,

,

(2009) (internal quotation marks omitted). A claim is facially

plausible when the facts pled in the complaint allow the court

to "draw the reasonable inference that the defendant is liable

for the misconduct alleged."

The standard does not amount to

a "probability requirement," but it does require more than a

"sheer possibility that a defendant has acted unlawfully."

In support of his claim, Mr. Lane points to two cases which

affirm the existence of judicial review of certain agency action

and one case which finds it precluded. In Simpson v. District of

Columbia Office of Human Rights,

, (D.C. 1991), the

District of Columbia Court of Appeals (“DCCA”) held that

although the D.C. Humans Rights Act (“HRA”) does not explicitly

provide for judicial review of Office of Human Rights (“OHR”)

findings, an OHR determination that there was no probable cause

to believe that the HRA had not been violated was subject to

judicial review.

. In District of Columbia v. Reid,

(2014), the DCCA held that the Homeless Services

Reform Act (“HRSA”) entitled homeless families “the right to sue

to obtain apartment-style shelter.”

. In People’s

Counsel of Dist. of Columbia v. Public Service Commission of the

District of Columbia,

(D.C. 1984), however, the

28 Court held that judicial review of the Public Service

Commission’s denial of declaratory relief was available. See

.

In each of these cases, the determination of whether

judicial review was available depended upon the particular

statutory provision at issue. Here, Mr. Lane has not indicated

the statutory provision(s) upon which his claim rests. See

generally Am. Compl., ECF No. 1-1; Pl.’s Opp’n, ECF No. 26.

Accordingly, Mr. Lane’s claim for misuse of government funds is

DISMISSED.

V. Conclusion

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

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

factfinder could conclude the District discriminated against Mr.

Lane based on his age when it terminated him, or that it

retaliated against him for taking part in a protected activity

when it terminated him. Accordingly, the District’s Motion for

Summary Judgment is GRANTED. Additionally, Mr. Lane’s claim for

misuse of government funds is DISMISSED. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge August 31, 2021

29