UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTOPHER LILLY,

Plaintiff,

v. Civil Action No. 15-738 (EGS)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Christopher Lilly (“Mr. Lilly”) brings this

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

for events arising from his employment with the District of

Columbia Metropolitan Police Department (“MPD”). He alleges that

MPD discriminated against him because of his gender and sexual

orientation, created a hostile work environment, and retaliated

against him in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the District

of Columbia Human Rights Act (“DCHRA”),

,

et seq. Pending before the Court is the District’s Motion for

Summary Judgment. See Def.’s Mot., ECF No. 45. Upon careful

consideration of the pending motion, the opposition, the reply

thereto, the applicable law, and the entire record therein, the

Court GRANTS the District’s Motion for Summary Judgment.

1 II. Background

A. Factual Background

Except where indicated, the following facts are not in

dispute. Mr. Lilly, who identifies as gay, Am. Compl., ECF No. 9

at 3 ¶ 16; 1 was an MPD police officer from February 20, 2007 to

August 16, 2013, Def.’s Reply to Pl.’s Counter Statement of

Disputed Facts (“Def.’s SOF Reply”), 2 ECF No. 54-1 at 1 ¶¶ 1-2;

Def.’s Exs. A & B, ECF No. 45-3 at 2, 4. In November 2007, Mr.

Lilly was assigned to the MPD Fourth District (“4D”) as a patrol

officer. Am. Compl., ECF No. 9 at 3 ¶ 9. He served most of his

career with MPD 4D, except for some limited duty assignments to

other divisions of MPD. See Def.’s Exs. L, Q, & Z, ECF No. 45-3

at 207, 248, 284, 287. On August 9, 2013, the Police and

Firefighters’ Retirement and Relief Board (“PFRRB”) ordered Mr.

Lilly’s retirement, determining that he was incapacitated from

further duty by reason of a disability incurred in the

performance of duty, and his retirement took effect on August

16, 2013. See Def.’s Exs. W & X, ECF No. 45-3 at 271, 275.

1 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. 2 This filing encompasses the District’s Statement of Material

Facts Not in Dispute, ECF No. 45-1, and Mr. Lilly’s Counter Statement of Disputed Facts, ECF No. 48-2. The Court relies on the District’s SOF Reply, ECF No. 54-1, to assist with setting forth the undisputed facts of this case. 2 1. Beginning of Mr. Lilly’s MPD Employment Issues

According to Mr. Lilly, no one at MPD knew that he

identified as gay until December 2010, when he learned that his

sexual orientation was being discussed among the other officers

after he was seen leaving a gay nightclub. Am. Compl., ECF No. 9

at 3-4 ¶¶ 10, 16; Pl.’s Opp’n, ECF No. 48-1 at 6-7. Mr. Lilly

claims that another officer called him a “fucking homo” and

“pretty gay,” and that following his “outing,” he experienced

name-calling and derogatory comments from MPD officers. Pl.’s

Opp’n, ECF No. 48-1 at 6-7; Def.’s Mot., ECF No. 45 at 4; Def.’s

Ex. C, ECF No. 45-3 at 143:13-21. For instance, Mr. Lilly claims

he was called a “sleazeball,” a “fucking faggot,” and “feminine

nickname(s)” such as “Brit-he Spears,” “Lilliana,” and “Officer

Lillita” by other officers “on a daily basis.” Pl.’s Opp’n, ECF

No. 48-1 at 7; Def.’s Mot., ECF No. 45 at 4; Def.’s Ex. C, ECF

No. 45-3 at 126:4-9, 146:5-15, 349:14-22, 350:3-351:18.

In January 2011, Mr. Lilly claims he found his locker

covered in HIV/AIDS awareness magnets, along with the word “fag”

written in Sharpie on the locker and a white liquid on the floor

simulating semen. Def.’s Ex. C, ECF No. 45-3 at 171:14-19,

176:1-21. Mr. Lilly alleges that he attempted to report the

incident via phone,

; but he did not notify an

MPD supervisor, Sergeant Audra Smith, until October 29, 2012,

see Pl.’s Exs. D & E, ECF No. 48-3 at 178, 180; Def.’s SOF

3 Reply, ECF No. 54-1 at 8 ¶ 50. MPD was officially made aware of

the incident on December 28, 2012. Pl.’s Ex. D, ECF No. 48-3 at

178. On January 13, 2013, Mr. Lilly emailed Sergeant Carlos

Mejia of MPD’s Gay and Lesbian Unit to follow up on his report,

see Def.’s Ex. H, ECF No. 45-3 at 122-24; who raised the

allegations to MPD’s Equal Employment Opportunity (“EEO”)

Compliance Branch, which opened an investigation, see Def.’s

Mot., ECF No. 45 at 6. On May 23, 2013, the MPD EEO Compliance

Branch issued its report concerning the locker incident,

concluding that the events “[did] not meet the threshold of

discrimination based on sexual orientation.” Def.’s Ex. I, ECF

No. 45-3 at 126, 130.

In addition to the locker incident, Mr. Lilly alleges that

in 2011 during an LGBTQ training, he was “singled out” and

called a “faggot.” Def.’s Ex. C, ECF No. 45-3 at 246:3-22.

During one roll call, Mr. Lilly alleges that one officer looked

at him and said, “All I know is that’s on them and faggots burn

in hell[.]”

.

Mr. Lilly also claims that he was sexually harassed by

Officers Maurice Clifford and Scott Pinto, who “constantly” sent

him pictures of their genitalia and explicit text messages.

. He alleges that once

when he was alone with these officers in the 4D gym, they pinned

him against the wall, and on other occasions, they “grabb[ed

4 his] ass at work,” engaged in thigh and shoulder rubbing, and

Officer Pinto once exposed himself to Mr. Lilly in the locker

room.

. In late

2012, Mr. Lilly claims he reported these officers, but no action

was taken.

; Pl.’s Ex. B, ECF No. 48-3 at

312:22-313:3, 314:6-315:6. But see Def.’s Mot., ECF No. 45 at 5

(contesting Mr. Lilly’s claim that he reported the alleged

harassment); Def.’s SOF Reply, ECF No. 54-1 at 2 ¶ 4.

2. Mr. Lilly’s On-Duty Incidents and Affected Performance as an MPD Officer

On September 10, 2011, while on duty, Mr. Lilly responded

to a call during which he was “attacked with a large knife by a

mentally disturbed woman who had not bathed in” three months.

Am. Compl., ECF No. 9 at 5 ¶ 24; Pl.’s Opp’n, ECF No. 48-1 at 8-

9. As a result, Mr. Lilly developed a mites/scabies infestation

that affected his body, home, and belongings. Pl.’s Opp’n, ECF

No. 48-1 at 9; Def.’s Ex. D, ECF No. 45-3 at 70. He was placed

on sick leave by a physician from MPD’s Police and Fire Clinic

(“PFC”) on September 14, 2011, who provided a written diagnostic

impression that Mr. Lilly was suffering from Acute Stress

Disorder and Adjustment Disorder with Anxiety. Pl.’s Ex. C, ECF

No. 48-3 at 176. Mr. Lilly remained on sick leave until he was

cleared to return to work via limited duty status. See

. Mr. Lilly completed a limited duty assignment in the

5 Court Liaison Division of the Internal Affairs Bureau (“IAB”)

from October 23, 2011 to January 29, 2012, when he returned to

4D patrol following approval by his PFC physician. Def.’s Ex. Z,

ECF No. 45-3 at 284, 287; Am. Compl., ECF No. 9 at 7 ¶ 32.

“From January 2012 through August 2012,” Mr. Lilly alleges

that his return to MPD 4D was met with increased “scrutiny,

ridicule, and humiliation” by his fellow officers. Pl.’s Opp’n,

ECF No. 48-1 at 10; Am. Compl., ECF No. 9 at 7 ¶ 33. He claims

that he was called “bug man,” “bedbugs,” “drama queen,” and

“crazy,” and that one officer blamed his reaction to the

September 2011 incident on his sexual orientation. Pl.’s Opp’n,

ECF No. 48-1 at 10; Am. Compl., ECF No. 9 at 7 ¶¶ 34-35. Then,

on August 16, 2012, Mr. Lilly was involved in an on-duty

incident that led an assailant to evade police capture. See

Def.’s Ex. U, ECF No. 45-3 at 264-66. He was charged with

Neglect of Duty and Failure to Obey, and on March 18, 2013, he

received a fifteen-day suspension for this charge. 3

.

Mr. Lilly appealed this suspension, but the Chief of Police

denied his appeal on April 8, 2013, finding that his conduct

“was an embarrassment to the Department and to [him] as a law

enforcement officer.”

. However, given his work

3 Mr. Lilly was also reprimanded for neglect of duty in a prior incident on July 24, 2012. Def.’s Ex. K, ECF No. 45-3 at 202. 6 history and lack of a disciplinary record, five of the

suspension days were held in abeyance for one year.

.

On September 27, 2012, Mr. Lilly responded to a possible

kidnapping and was exposed to bedbugs at the scene. Def.’s Ex.

E, ECF No. 45-3 at 77; Def.’s SOF Reply, ECF No. 54-1 at 2 ¶ 7.

Mr. Lilly claims that he was ordered to go inside, while the

other officers remained outside. See Def.’s Ex. E, ECF No. 45-3

at 79; Pl.’s Ex. B, ECF No. 48-3 at 282:1-22. Despite his prior

history with bedbugs, he was ordered to transport an infected

girl from the scene to the hospital. Def.’s Ex. E, ECF No. 45-3

at 80. Because of this incident, Mr. Lilly’s mental health

conditions were exacerbated. See

; Pl.’s Ex. C, ECF No.

48-3 at 141-42. As a result, on September 28, 2012, Mr. Lilly

was placed on limited duty status for the second time, and his

police powers were revoked the next day. See Def.’s Ex. F, ECF

No. 45-3 at 88; Def.’s Ex. G, ECF No. 45-3 at 107 (detailing

MPD’s policy for revoking an officer’s police powers due to a

medical condition); Def.’s SOF Reply, ECF No. 54-1 at 2 ¶ 9. He

also reported two hours late for work that day and was placed in

a Leave Without Pay (“LWOP”) status for two hours. See Pl.’s Ex.

M, ECF No. 48-3 at 287.

A few days later, Mr. Lilly was referred by MPD officials

for a Psychological Fitness for Duty Evaluation. Pl.’s Ex. F,

ECF No. 48-3 at 182; Def.’s Ex. N, ECF No. 45-3 at 234. Dr.

7 Gloria Morote (“Dr. Morote”), a licensed clinical psychologist,

evaluated Mr. Lilly on October 10, 2012 and October 24, 2012,

alongside MPD referral documents informing her that “following a

period of good service[,] Officer Lilly’s performance and

appearance began to deteriorate in August/September 2012[,]”

including “two major investigations for neglect of duty,”

“deterioration” in his mental condition, and “marked nervousness

and erratic behavior while on-duty after an exposure to

bedbugs.” Pl.’s Ex. F, ECF No. 48-3 at 182-83; Def.’s SOF Reply,

ECF No. 54-1 at 8 ¶ 51. Following her evaluation, Dr. Morote

concluded that Mr. Lilly should remain on limited duty status

due to his continued “struggle with symptoms of a mood disorder,

specifically anxiety with obsessive features, to the degree that

can adversely impact his ability to perform the requirements of

the job.” Pl.’s Ex. F, ECF No. 48-3 at 187.

On October 13, 2012, Mr. Lilly received an Annual

Performance Rating of “Does Not Meet Expectations” for the

period between October 1, 2011 and September 30, 2012, which was

“significantly lower” than his prior rating. Pl.’s Ex. Q, ECF

No. 48-3 at 295. In addition, between February 2011 and November

2012, Mr. Lilly was disciplined for various incidents of

tardiness and for being absent without official leave (“AWOL”).

See, e.g., Pl.’s Ex. L, ECF No. 48-3 at 285 (notifying Mr. Lilly

on February 11, 2011 of his one minute of tardiness and placing

8 him in LWOP status for one hour); Pl.’s Ex. M, ECF No. 48-3 at

287 (notifying Mr. Lilly on September 29, 2012 of his two hours

of tardiness and placing him in LWOP status for two hours);

Pl.’s Ex. N, ECF No. 48-3 at 289 (notifying Mr. Lilly on

November 3, 2012 of his two hours of tardiness and placing him

in LWOP status for two hours); Pl.’s Ex. O, ECF No. 48-3 at 291

(notifying Mr. Lilly on November 27, 2012 that he was placed in

AWOL status following his six-hour absence on November 20,

2012); see also Def.’s SOF Reply, ECF No. 54-1 at 7 ¶¶ 41-44.

3. Events from the Final Year of Mr. Lilly’s MPD Employment Leading up to His Retirement

On January 7, 2013, IAB’s Internal Affairs Division (“IAD”)

was notified that the Executive Office of the Chief of Police

received an anonymous email complaint alleging that Mr. Lilly

had “conducted himself in a manner that was unbecoming of a[n

MPD] police officer.” See Def.’s Ex. N, ECF No. 45-3 at 225. The

complainant claimed that Mr. Lilly had posted an inappropriate

video on YouTube and was “mentally ill” and a “disgrace” to MPD.

IAD opened an investigation, and Mr. Lilly and his direct

supervisor, Sergeant Christopher Moore, were interviewed.

. Following the interviews and IAD’s review of twenty-six

videos involving Mr. Lilly singing on YouTube, it concluded in a

report dated April 17, 2013 that there was no evidence to

support that he had “demonstrated conduct that was unbecoming of

9 a police officer[,]” as he never identified himself as an

officer or wore clothing or other emblems that would identify

him as such in the videos.

. Moreover, IAD found

that “in the videos, Officer Lilly [was] exercising his right to

Freedom of Speech and Freedom of Expression,” and it recommended

that the investigation be closed due to “insufficient facts.”

. However, because IAD was not equipped to assess Mr.

Lilly’s mental condition, it forwarded the allegation regarding

his mental status to MPD’s PFC for review.

.

On January 22, 2013, MPD notified Mr. Lilly that he was

being placed in a “chargeable sick leave status” since he failed

to request approval to continue working under limited duty

status beyond the period granted to him in September 2012, as

required by MPD policy. See Pl.’s Ex. S, ECF No. 48-3 at 306.

Thereafter, Mr. Lilly submitted a request to extend his limited

duty status by thirty days, see Pl.’s Ex. T, ECF No. 48-3 at

308; which was granted, see Pl.’s Ex. U, ECF No. 48-3 at 310.

Mr. Lilly was detailed to the Investigative Services Bureau,

Youth Investigations Division (“YID”), effective March 17, 2013,

see Def.’s Ex. L, ECF No. 45-3 at 207; until early May 2013,

when he returned to 4D under limited duty status, see Def.’s Ex.

Q, ECF No. 45-3 at 247-48; Def.’s Ex. R, ECF No. 45-3 at 250.

Following his return, Mr. Lilly alleges the “verbal torture[]

and ridicule” continued, including the name calling of “faggot,”

10 “drama queen,” “bedbug 2.0.,” and “fairy.” Am. Compl., ECF No. 9

at 16 ¶ 77; Pl.’s Opp’n, ECF No. 48-1 at 19.

In 2013, Mr. Lilly reported late to work on several

occasions. On January 26, 2013, Mr. Lilly notified his watch

commander that he had taken Ambien—a prescription medication—and

overslept, causing him to be AWOL for eight hours and not report

for work that day. See Def.’s Ex. J, ECF No. 45-3 at 187-88,

190-91 (showing that IAB investigated this AWOL incident and

cited Mr. Lilly for adverse action); Def.’s SOF Reply, ECF No.

54-1 at 3 ¶ 14. Four days later, on January 30, 2013, Mr. Lilly

was AWOL again for five hours and fifteen minutes. See Def.’s

Ex. K, ECF No. 45-3 at 201. Mr. Lilly told his superiors that he

was late because he had an appointment, realized he forgot his

cell phone, and drove home to get it before reporting for duty,

but later admitted that he overslept. See

(showing that IAB investigated this incident and cited Mr. Lilly

for being AWOL and making false statements to his superior

officers); Def.’s SOF Reply, ECF No. 54-1 at 3 ¶¶ 15-17.

A few months later, on April 18, 2013, Mr. Lilly again

reported late to work by five and a half hours. See Def.’s Ex.

O, ECF No. 45-3 at 237-38; Def.’s SOF Reply, ECF No. 54-1 at 4 ¶

24. While initially claiming that he overslept, upon arriving at

work, Mr. Lilly admitted to his superior officer that he had

been having an anxiety attack. See Def.’s Ex. O, ECF No. 45-3 at

11 241-43 (showing that IAB investigated this incident and cited

Mr. Lilly for being AWOL and making false statements to his

superior officers); see also Def.’s Ex. S, ECF No. 45-3 at 252

(imposing a five day suspension due to Mr. Lilly’s various AWOL

incidents but holding all five in abeyance for twelve months).

Mr. Lilly filed a witness statement, dated April 18, 2013,

about this April AWOL incident, attributing his oversleeping to

“work-related issues.” See Def.’s Ex. P, ECF No. 45-3 at 245. In

this statement, he also reported an incident from the prior

week, in which he claimed to hear YID employees making fun of

the “coming out process” in the presence of senior officials who

“did not stop it.” 4 See id.; Pl.’s Ex. B, ECF No. 48-3 at 190:1-

194:1; Def.’s Ex. I, ECF No. 45-3 at 149-50; Def.’s SOF Reply,

ECF No. 54-1 at 4 ¶ 25. MPD’s EEO Compliance Branch investigated

Mr. Lilly’s claim but did not find any evidence to support it

and concluded that Mr. Lilly was not “subjected to an atmosphere

of sufficiently severe or pervasive harassment” based on the

alleged statement. See Def.’s Ex. I, ECF No. 45-3 at 130.

On April 11, 2013, two U.S. Park Police officers contacted

MPD after they encountered Mr. Lilly walking near a ravine on

the shoulder of the George Washington Memorial Parkway. See

4 Mr. Lilly claims that his coworkers engaged in “bad hate” jokes by chanting “Sergeant Z’s coming out of the closet, Sergeant Z’s –- like I’m a fairy faggot, I’m a fairy faggot coming out of the closet.” Pl.’s Ex. B, ECF No. 48-3 at 193:1-194:1. 12 Def.’s Ex. M, ECF No. 45-3 at 209, 214-15; Def.’s SOF Reply, ECF

No. 54-1 at 3-4 ¶ 19. When questioned by the officers, Mr. Lilly

identified himself as an MPD officer and displayed a duplicate

copy of his MPD badge, despite his police powers having been

revoked in September 2012. See Def.’s Ex. F, ECF No. 45-3 at 90;

Def.’s Ex. M, ECF No. 45-3 at 215; Def.’s SOF Reply, ECF No. 54-

1 at 4 ¶ 20. IAB opened an investigation into this incident,

which led Mr. Lilly to be cited for corrective action in the

form of an official reprimand for displaying his spare MPD badge

while his police powers were revoked. Def.’s Ex. M, ECF No. 45-3

at 215. IAB concluded that this conduct was “prejudicial to the

reputation and good order of the police force” and “detrimental”

to MPD in violation of MPD’s General Order 120.21.

Then, on April 19, 2013, MPD’s PFC issued its formal

recommendation (via a written report by Dr. Morote) to the PFRRB

that Mr. Lilly be considered for disability retirement. Def.’s

Ex. D, ECF No. 45-3 at 69, 74. The report noted that Mr. Lilly

had been on limited duty status since September 2012 “following

deterioration in his work performance and emotional stability

after an exposure to bedbugs.”

. The report reviewed

Mr. Lilly’s medical records 5 and mental health history to

5 This review included Mr. Lilly’s completion of a January 31, 2013 Psychometric Test (a six-page questionnaire). See Pl.’s Ex. R, ECF No. 48-3 at 299-304. 13 conclude that he “continue[d] to struggle with symptoms of a

mood disorder . . . that [could] adversely impact his ability to

perform” and was presenting “with symptoms of depression,

anxiety, and behavioral disinhibition which disable[d] his

insight and capacity to function as a police officer.”

. The PFC submitted its recommendation to the PFRRB

pursuant to

and 5-634, which provide that

“regardless of whether the prognosis is that the member will be

able to perform the full range of duties after achieving maximum

medical improvement, the Director shall process for retirement,

pursuant to § 5-710, those members of the [MPD] who spend all or

part of 172 cumulative work days in a less-than-full-duty status

over a 2-year period as a result of any one performance-of-duty

[or non performance-of-duty] injury or illness, including any

complications relating to the injury or illness.” Id. at 74-75.

On May 22, 2013, Mr. Lilly was placed on administrative

leave, Def.’s SOF Reply, ECF No 54-1 at 5 ¶ 28; after “rambling”

with “glassy” eyes to a commanding officer about being sent by

his family to a “funny farm,” see Def.’s Ex. R, ECF No. 45-3 at

250. The commanding officer thereafter made requests to have Mr.

Lilly removed from 4D limited duty. Id. Then, on May 31, 2013,

Mr. Lilly self-admitted into Dominion Hospital, a mental health

facility in Virginia, to receive psychiatric treatment. See

Def.’s Ex. AA, ECF No. 45-3 at 289; Def.’s Ex. BB, ECF No. 45-3

14 at 294. He was also later investigated by IAB regarding whether

he provided false information about his mental health history in

his recruitment package, allegations which were sustained in

IAB’s final investigative report dated August 8, 2013. See

Def.’s Ex. T, ECF No. 45-3 at 257-58; Def.’s SOF Reply, ECF No.

54-1 at 6 ¶ 34.

After conducting an evidentiary hearing on July 18, 2013,

Pl.’s Ex. A, ECF No. 48-3 at 12; on August 9, 2013, the PFRRB

issued an interim order determining that Mr. Lilly was

“incapacitated from further duty by reason of a disability

incurred in the performance of duty after more than five years

of creditable service[,]” effective August 16, 2013, Def.’s Ex.

W, ECF No. 45-3 at 271. The PFRRB finalized this interim order

on December 5, 2013. See Def.’s Ex. X, ECF No. 45-3 at 276. 6

B. Procedural Background

Mr. Lilly made internal complaints to MPD on the following

dates: (1) October 29, 2012, when he notified MPD supervisor

Sergeant Audra Smith about the 2011 locker incident, see Pl.’s

Exs. D & E, ECF No. 48-3 at 178, 180; Def.’s SOF Reply, ECF No.

54-1 at 8 ¶ 50; (2) January 13, 2013, when he emailed Sergeant

Carlos Mejia of MPD’s Gay and Lesbian Unit to follow up on his

6 Mr. Lilly was later informed that he owed a fine of $3,559.20 to MPD because he retired prior to serving a fifteen-day suspension that was served to him on April 8, 2013. See Def.’s Exs. U & V, ECF No. 45-3 at 264, 266, 269. 15 report about the 2011 locker incident, see Def.’s Ex. H, ECF No.

45-3 at 122-24; and (3) April 18, 2013, 7 when he reported conduct

making fun of the “coming out process” that occurred in the

presence of YID officials, see Def.’s Ex. I, ECF No. 45-3 at

149-50. Both the locker incident and the incident during Mr.

Lilly’s YID detail were investigated by MPD’s EEO Compliance

Branch, and those findings were detailed in its final

investigative report, dated May 23, 2013. See generally id.

On March 11, 2014, Mr. Lilly filed a Charge of

Discrimination with the Alexandria Office of Human Rights, which

was cross-filed with the U.S. Equal Employment Opportunity

Commission (“EEOC”). 8 See Def.’s Ex. Y, ECF No. 45-3 at 279;

Def.’s SOF Reply, ECF No. 54-1 at 6 ¶ 40. Mr. Lilly amended his

charge twice, on March 13, 2014 and March 19, 2014, “adding

allegations that the locker incident was not properly

investigated; that he was forced to retire; and that he was not

receiving full retirement benefits.” Def.’s Mot., ECF No. 45 at

10; Pl.’s Opp’n, ECF No. 48-1 at 20; see Def.’s Ex. Y, ECF No.

7 Both Mr. Lilly and the District identified April 17, 2013 as the date of this reporting. See Def.’s Mot., ECF No. 45 at 10; Pl.’s Opp’n, ECF No. 48-1 at 20. However, Mr. Lilly’s “Complainant/Witness Statement” reporting this incident is dated April 18, 2013. See Def.’s Ex. I, ECF No. 45-3 at 149. 8 Mr. Lilly’s charge checked the “boxes” for discrimination based

on sex, retaliation, and disability. See Def.’s Ex. Y, ECF No. 45-3 at 279. However, none of the counts in Mr. Lilly’s complaint allege discrimination based on disability, so the Court does not analyze it. See Am. Compl., ECF No. 9 at 18-30. 16 45-3 at 279-82. On February 12, 2015, the EEOC denied Mr.

Lilly’s claim and mailed him his right-to-sue letter, which he

received on March 23, 2015. See Compl., Ex. A, ECF No. 1-3 at 1;

Compl., Ex. B, ECF No. 1-4 at 1; Compl., Ex. C, ECF No. 1-5 at

1; Am. Compl., ECF No. 9 at 18 ¶ 92. On May 16, 2015, Mr. Lilly

filed this action, asserting Title VII and DCHRA claims, along

with constitutional claims under

. See Compl.,

ECF No. 1 at 1-2; Am. Compl., ECF No. 9 at 1.

On January 7, 2016, the District moved to dismiss Mr.

Lilly’s constitutional claims. See Def.’s Mot. to Dismiss, ECF

No. 13 at 1. The Court granted the District’s partial motion to

dismiss on September 26, 2016, see Order, ECF No. 18 at 1; and

the District filed its answer as to Mr. Lilly’s remaining claims

on October 12, 2016, see Def.’s Answer, ECF No. 20. On August 9,

2018, the District filed the present Motion for Summary Judgment

along with exhibits. See Def.’s Mot., ECF No. 45; Def.’s Errata

& Exs., ECF No. 46. Mr. Lilly filed his opposition and

accompanying exhibits on October 19, 2018, see Pl.’s Opp’n, ECF

No. 48; to which the District replied on February 5, 2019, see

Def.’s Reply, ECF No. 54.

While the District’s present motion was pending, it

requested leave to file an amended answer on February 11, 2019.

See Def.’s Contested Mot. for Leave to Amend its Answer, ECF No.

61. The case was stayed, see Minute Order (Feb. 28, 2019); until

17 the Court granted this motion, allowing the District “to amend

its answer to add the statute of limitations as an affirmative

defense,” see Minute Order (Oct. 26, 2020). The District

thereafter filed its amended answer on October 27, 2020. See

Def.’s Am. Answer, ECF No. 67. The District’s Motion for Summary

Judgment is now ripe and ready for the Court’s adjudication.

III. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary

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

genuine dispute as to any material fact and the movant is

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

56(a); Waterhouse v. Dist. 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

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

,

(1986) (internal quotation marks omitted). On the

other hand, to defeat summary judgment, the nonmoving party must

“go beyond the pleadings” to designate specific facts showing

that there is a genuine issue of material fact for trial.

. A material fact is one that is capable of affecting the

outcome of the litigation, while a genuine dispute is one in

which “the evidence is such that a reasonable jury could return

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

Inc.,

,

(1986). The nonmoving

party’s opposition “must consist of more than mere unsupported

allegations or denials and must be supported by affidavits or

other competent evidence” in the record. Musgrove v. Dist. of

Columbia,

(D.D.C. 2011), aff’d,

(D.C. Cir. 2012); Celotex,

. Furthermore,

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.” Anderson,

.

IV. Analysis

Mr. Lilly alleges three claims under Title VII and the

DCHRA: (1) discrimination based on gender and sexual

orientation; (2) hostile work environment; and (3) retaliation.

See Am. Compl., ECF No. 9 at 23-30. Because the legal standards

for establishing these claims under Title VII and the DCHRA are

substantively the same, see Carpenter v. Fed. Nat’l Mortg.

Ass’n,

(D.C. Cir. 1999) (explaining that, “[i]n

interpreting its Human Rights Act[,] the District of Columbia .

. . generally seems ready to accept the federal constructions of

Title VII, given the substantial similarity between it and the

[DCHRA]”); the Court will analyze Mr. Lilly’s claims under these

statutes together, first outlining the applicable legal

19 standards for these three claims below, see Williams v. Dist. of

Columbia,

(D.D.C. 2018).

Under Title VII and the DCHRA, an employer cannot

“discriminate against any individual with respect to his . . .

employment, because of [his] race, color, religion, sex, or

national origin.” See 42 U.S.C. § 2000e-2(a)(1);

-

1402.11 (including discrimination based on sexual orientation).

To establish discrimination, Mr. Lilly must prove two elements:

(1) he suffered an adverse employment action (2) because of his

gender or sexual orientation. See Brady v. Off. of Sergeant at

Arms,

(D.C. Cir. 2008). If he succeeds in

doing so, the burden shifts to the District “to articulate some

legitimate, nondiscriminatory reason for the [adverse action].”

Tex. Dep’t of Cmty. Affs. v. Burdine,

,

(1981). The District’s burden is satisfied if it

“explains what [it] has done or produc[es] evidence of

legitimate nondiscriminatory reasons.”

(internal

quotation marks omitted). Then, the burden shifts back to Mr.

Lilly “to prove by a preponderance of the evidence that the

legitimate reasons offered by the [District] were not its true

reasons, but were a pretext for discrimination.”

.

To establish a hostile work environment claim, Mr. Lilly

must show that: “(1) he is a member of a protected class; (2) he

was subjected to unwelcome harassment; (3) the harassment

20 occurred because of [his] protected status; (4) the harassment

affected a term, condition, or privilege of employment; and (5)

the [District] knew or should have known of the harassment in

question but nonetheless failed to either take steps to prevent

it or afford [him] prompt remedial action.” Dudley v. Wash.

Metro. Area Transit Auth.,

(D.D.C.

2013). Whether Mr. Lilly’s MPD workplace was actionably hostile

involves a subjective and objective analysis, i.e., Mr. Lilly

must have subjectively perceived the environment to be hostile,

see Carter-Frost v. Dist. of Columbia,

(D.D.C. 2018); and the conduct must have been “sufficiently

severe or pervasive to alter the conditions of [his] employment

and [objectively] create an abusive working environment[,]”

Dudley,

(quoting Harris v. Forklift Sys.,

Inc.,

,

(1993)). Under the

objective prong, the Court “looks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interfere[d] with [Mr. Lilly’s] work performance[,]” Baloch v.

Kempthorne,

(D.C. Cir. 2008); as “simple

teasing, offhand comments, and isolated incidents” do not amount

to actionable workplace harassment, Faragher v. City of Boca

Raton,

,

(1998).

21 Finally, to establish a retaliation claim, Mr. Lilly must

show that: (1)he engaged in statutorily protected activity; (2)

he suffered a materially adverse action by the District; and (3)

a causal link connects the two. See Carter-Frost,

(citing Jones v. Bernanke,

(D.C. Cir.

2009)). Upon this showing, the burden shifts to the District “to

articulate a legitimate, non-retaliatory reason for its

actions,” and if it does so, the burden returns to Mr. Lilly to

prove that the “asserted non-retaliatory reason was mere pretext

for retaliation.”

(citing Jones,

). The “sole

remaining question” thus becomes “whether, based on all the

evidence, a reasonable jury could conclude that [the] proffered

reason was” not the real reason for the adverse action and that

the District intentionally retaliated against Mr. Lilly. Pardo–

Kronemann v. Donovan,

(D.C. Cir. 2010); Walker

v. Johnson,

(D.C. Cir. 2015).

Mr. Lilly’s complaint alleges a range of discriminatory and

retaliatory conduct spanning several years of his employment

with MPD. “However, the Court must be careful about which events

it can and cannot consider[,]” as before determining whether

each of the alleged events meets the above standards for

discrimination, hostile work environment, and retaliation

claims, the Court must assess whether Mr. Lilly has properly and

timely exhausted his administrative remedies. See Dudley,

Supp. 2d at 154; see also Pierson v. Wash. Metro. Area Transit

Auth.,

(D.D.C. 2011) (“In actions

brought under Title VII, a court has authority over only those

claims that are (1) contained in the plaintiff’s administrative

complaint or claims ‘like or reasonably related to’ those claims

in the administrative complaint[,] and (2) claims for which the

plaintiff exhausted administrative remedies.”). As such, the

Court first discusses these procedural requirements before

turning to the merits of Mr. Lilly’s claims.

A. Mr. Lilly’s Claims Under Title VII and the DCHRA Are, in Part, Procedurally Time-Barred

As an initial matter, the District argues that Mr. Lilly’s

“hostile work environment claims and most of his discrete claims

of discrimination and retaliation should be dismissed.” Def.’s

Mot., ECF No. 45 at 13. Specifically, the District argues that

Mr. Lilly’s Title VII claims that accrued prior to May 15, 2013 9

should be barred as untimely, and in addition, for failure to

exhaust, as it contends that “most of the challenged employment

actions that [Mr. Lilly] alleges in the Amended Complaint” were

not raised in his filed Charge of Discrimination. Id. at 12-13.

In addition, the District argues that Mr. Lilly’s DCHRA claims

9 The District initially alleged that Mr. Lilly’s Title VII claims prior to May 13, 2013 should be time-barred, see Def.’s Mot., ECF No. 45 at 12-13; but it corrected this date to May 15, 2013 in its Reply brief, see Def.’s Reply, ECF No. 54 at 2 n.1. 23 that accrued prior to June 13, 2013 should also be barred as

untimely under that Act. Id. at 14-15. Mr. Lilly opposes these

procedural arguments, contending that all of his Title VII and

DCHRA claims are timely because they were part of a “continuing

violation,” which benefits from the rule that just one act that

is part of the hostile work environment need be timely for the

Court to consider the whole spectrum of conduct, untimely acts

included. See Pl.’s Opp’n, ECF No. 48-1 at 22-26. In addition,

Mr. Lilly argues that the District failed to raise a timeliness

argument in its Rule 12(b)(6) motion to dismiss and therefore

waived its right to raise a statute of limitations defense and

should not now get “a second bite at the apple[.]” Id. at 25.

The District replies that: (1) the “alleged discriminatory acts

pleaded by” Mr. Lilly are “separate and distinct discrimination

claims” rather than “a continuing pattern of discrimination;”

and (2) its exhaustion and “time barred defense[s] ha[ve] not

been waived.” See Def.’s Reply, ECF No. 54 at 1-9.

1. Title VII: Mr. Lilly’s Hostile Work Environment Claim Is Time-Barred, Along with All Alleged Discrete Discriminatory or Retaliatory Acts Prior to May 15, 2013

The Court begins by assessing exhaustion under Title VII,

which “requires that an employee exhaust [his] administrative

remedies by filing a claim with the EEOC prior to filing suit in

the district court.” Headen v. Wash. Metro. Area Transit Auth.,

24

(D.D.C. 2010). The Act “provides

detailed procedures for bringing administrative charges, and . .

. ‘specifies with precision’ the prerequisites that a plaintiff

must satisfy before filing suit.” Dudley,

(quoting Nat’l R.R. Passenger Corp. v. Morgan,

,

(2002)). Specifically, Title VII requires

an aggrieved employee to file a charge with the EEOC within 180

days “after the alleged unlawful employment practice occurred,”

but extends this period to 300 days if the employee “has [first]

instituted proceedings with a State or local agency.” Dieng v.

Am. Insts. for Rsch. in Behav. Scis.,

, 12

(D.D.C. 2019) (citing 42 U.S.C. § 2000e-5(e)(1)). “Only after

the EEOC has notified the aggrieved person of its decision to

dismiss or its inability to bring a civil action within the

requisite time period can that person bring a civil action

[himself].” Park v. How. Univ.,

(D.C. Cir.

1995). The aggrieved employee has ninety days following receipt

of that notice to commence a civil action. Akridge v. Gallaudet

Univ.,

(D.D.C. 2010) (citing 42

U.S.C. §§ 2000e–5(f)(1), 12117(a)). 10

10Although the District notes that Mr. Lilly filed this action ninety-three days after the EEOC issued his right-to-sue notice on February 12, 2015, it does not appear to contest Mr. Lilly’s conformance with the ninety-day right-to-sue period, as it notes that the ninety-day countdown does not begin “until the date of receipt of the right-to-sue notice[,]” which Mr. Lilly states 25 The parties do not dispute that Mr. Lilly benefits from the

300-day extension period, as he first “instituted proceedings

with a State or local agency,” see 42 U.S.C. § 2000e-5(e)(1);

and his claims were then cross-filed with the EEOC, see Craig v.

Dist. of Columbia,

(D.D.C. 2012); Def.’s

Ex. Y, ECF No. 45-3 at 279. Pursuant to Title VII, Mr. Lilly was

thus required to file his Charge of Discrimination “within three

hundred days after the alleged unlawful employment practice

occurred[.]” 42 U.S.C. § 2000e-5(e)(1). Here, Mr. Lilly filed

his charge on March 11, 2014. See Def.’s Ex. Y, ECF No. 45-3 at

279. Calculating 300 days backwards from that date, only Title

VII claims occurring on or after May 15, 2013 fall within the

timely filing window. See Def.’s Reply, ECF No. 54 at 2 n.1.

However, the U.S. Supreme Court has determined that Title

VII applies different limitations rules for hostile work

environment claims and “discrete discriminatory act” claims. See

Singletary v. Dist. of Columbia,

(D.C. Cir.

2003) (citing Morgan,

). For discrete retaliatory

or discriminatory acts like terminations, each act “starts a new

clock for filing charges alleging that act[,]” and these acts

become “not actionable if time barred, even when they are

related to acts alleged in timely filed charges.” Morgan, 536

was March 23, 2015. See Def.’s Mot., ECF No. 45 at 14 n.6; Am. Compl., ECF No. 9 at 18 ¶ 92. 26 U.S. at 113. In contrast, hostile work environment claims “are

different in kind from discrete acts” because “[t]heir very

nature involves repeated conduct[,]” i.e., “a series of separate

acts that collectively constitute one ‘unlawful employment

practice.’” Id. at 115, 117. Accordingly, the limitations rule

for hostile work environment claims provides that when “an act

contributing to the claim occurs within the filing period, the

entire time period of the hostile environment may be considered

by the court for the purposes of determining liability.” Id. at

117. In other words, a hostile work environment claim “will not

be time barred so long as all acts which constitute the claim

are part of the same unlawful employment practice and at least

one act falls within the time period.” Id. at 122; Singletary,

; Craig,

(“Because a

hostile work environment claim aggregates numerous occurrences,

. . . plaintiffs need only allege that one or more contributing

acts occurred within the relevant time period.”). 11

The parties agree that “[u]nless the discriminatory acts

pleaded by [Mr. Lilly] constitute a continuing pattern of

discrimination, each [discrete] claim must have occurred within

the 300-day period before the charge was filed.” See Def.’s

11This same division between the limitations rules for discrete discriminatory acts and hostile work environment claims under Title VII applies to the equivalent DCHRA claims. See Barrett v. Covington & Burling LLP,

(D.C. 2009). 27 Reply, ECF No. 54 at 1, 7-8; Pl.’s Opp’n, ECF No. 48-1 at 22-23.

Therefore, to the extent that Mr. Lilly alleges any discrete

instances of discrimination or retaliation prior to May 15,

2013, the Court concludes that they are time-barred under Title

VII. However, the parties debate whether many of the alleged

acts that occurred between 2010 and Mr. Lilly’s retirement date

are “discrete discriminatory acts” that are mostly time-barred,

or are instead all “part of the same actionable hostile work

environment practice,” where only one act need be timely for the

whole series of conduct to be considered. Singletary,

; compare Def.’s Reply, ECF No. 54 at 2-3 (listing all

of the alleged acts the District views as “separate and distinct

discrimination claims” that “were required to be filed by May

15, 2013,” and are thus “time-barred”), with Pl.’s Opp’n, ECF

No. 48-1 at 23 (alleging a continuing pattern of “intentional

and persistent derogatory comments towards [Mr. Lilly]” and

harassment, “which continued through his involuntary retirement”

and included acts occurring after May 15, 2013).

The Court is unpersuaded that Mr. Lilly has sufficiently

alleged an ongoing hostile work environment claim up until the

date that he was effectively retired. As noted by the District,

Mr. Lilly returned to MPD 4D following his detail to YID on May

5, 2013, see Def.’s Ex. Q, ECF No. 45-3 at 247-48; but he was

placed on administrative leave on May 22, 2013, see Def.’s Ex.

28 R, ECF No. 45-3 at 250; and shortly thereafter, on May 31, 2013,

he self-admitted to Dominion Hospital to receive psychiatric

treatment, see Def.’s Ex. AA, ECF No. 45-3 at 289; Def.’s Ex.

BB, ECF No. 45-3 at 294. Thus, following May 22, 2013, Mr. Lilly

was not in a position to experience any alleged “discriminatory

intimidation, ridicule, and insult[,]” as he was no longer an

active participant in MPD’s working environment. See Barrett v.

Covington & Burling LLP,

(D.C. 2009)

(determining that a conversation between the former employee and

her employer regarding her termination did not make her hostile

work environment claim timely, as that conversation “simply was

not part of the work environment—appellant had not been in the

workplace for months” due to medical leave). Nor is Mr. Lilly

permitted to “bootstrap” any timely alleged discrete acts of

retaliation or discrimination into his broader hostile work

environment claim. See Marcus v. Yellen, No. 09-1686,

, at *23 (D.D.C. Aug. 31, 2022) (citation omitted). Thus,

the Court is only left with the question of whether Mr. Lilly

has alleged any timely acts contributing to his hostile work

environment claim between May 15, 2013 and May 22, 2013 (the

date he was placed on administrative leave), such that the Court

can consider “the entire time period of the hostile environment”

to determine the District’s liability. See Morgan,

; Def.’s Mot., ECF No. 45 at 12 (noting that Mr. Lilly only

29 worked seven days out of the 300-day Title VII filing period—May

15, 2013 to May 21, 2013—so any act making his hostile work

environment claim timely must have occurred during that window).

As the District notes, “[t]he only evidence” to support a

hostile work environment claim that Mr. Lilly “was subject to

any discriminatory name-calling or derogatory comments on or

after May 1[5], 2013, is [his] sworn testimony.” Def.’s Mot.,

ECF No. 45 at 13. The District points to Mr. Lilly’s deposition

testimony that he experienced name-calling “every day” following

being “outed” as gay in December 2010 and that he was sexually

harassed “non-stop” and “constantly” by Officers Clifford and

Pinto. See id.; Def.’s Ex. C, ECF No. 45-3 at 143:1-144:8,

149:9-20. As to the seven-day time period at issue, Mr. Lilly

claims he has “allege[d] acts that took place . . . after May

1[5], 2013,” including “persistent derogatory comments” and

“harassment based on sexual orientation and personal

appearance[.]” Pl.’s Opp’n, ECF No. 48-1 at 23. Yet, he does not

cite to his sworn testimony to support this statement, nor

indicate anywhere in the record that might prove that a hostile

event occurred between May 15, 2013 and May 21, 2013. In fact,

the Court only located this specific time period in Mr. Lilly’s

Amended Complaint, in which he alleged that following May 16,

2013, “the discriminatory verbal torture[] and ridicule due to

[his] sexual orientation” continued and “[h]is environment

30 remained hostile” due to “[n]ame calling such as ‘faggot,’

‘drama queen,’ and ‘bedbug 2.0[.]’” See Am. Compl., ECF No. 9 at

16 ¶¶ 76-77. Of note, however, the pleadings are factually

inconsistent with the record, as the Amended Complaint does not

mention that Mr. Lilly was placed on administrative leave on May

22, 2013, and instead alleges that he continued to work and

experience discriminatory actions “[o]ver the course of June

2013 through July 2013” until he was admitted into Dominion

Hospital, when the record instead shows that he self-admitted on

May 31, 2013. Compare

at 16 ¶ 78, with Def.’s Ex. R, ECF No.

45-3 at 250, and Def.’s Ex. AA, ECF No. 45-3 at 289.

Drawing all reasonable inferences in his favor, the Court

is not persuaded that Mr. Lilly has met his burden to defeat

summary judgment as to the timeliness of his hostile work

environment claim. Mr. Lilly is required to “go beyond the

pleadings” to designate specific facts showing a genuine dispute

as to the existence of a timely hostile act to support his

claim, see Celotex,

; but instead, his opposition

consists of “mere unsupported allegations” that are not backed

by any affidavits or “other competent evidence” in the record,

Musgrove,

; see also Morgan v. Fed. Home

Loan Mortg. Corp.,

(D.D.C. 2001), aff’d,

(D.C. Cir. 2003) (“While summary judgment must be

approached with special caution in discrimination cases, a

31 plaintiff is not relieved of [his] obligation to support [his]

allegations by affidavits or other competent evidence showing

that there is a genuine issue for trial.”); Bolden v. Winter,

, 136 (D.D.C. 2009) (prohibiting a court on

summary judgment from “overlook[ing] a plaintiff’s failure to

submit evidence that creates a genuine factual dispute”).

Even Mr. Lilly’s “direct testimonial evidence,” which can

be used to defeat summary judgment, see Pierson,

(quoting Arrington v. United States,

(D.C. Cir. 2006)); does not specifically mention the relevant

seven-day time period. Instead, his deposition testimony only

generalizes with “vague, self-serving allegations” that the

discriminatory name-calling and comments were “daily” and the

harassment “constant,” which is “not sufficient evidence to

create a dispute of material fact.” Carter-Frost,

. The Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has indicated that summary judgment “is

most likely when a plaintiff’s claim is supported solely by

[his] own self-serving testimony, unsupported by corroborating

evidence, and undermined either by other credible evidence [in

the record], . . . or other persuasive evidence that the

plaintiff has deliberately committed perjury.” Arrington,

(Brown, J. concurring in part). Here, there is no

allegation of perjury, but the allegations in the Complaint are

32 undermined by other credible evidence in the record, and Mr.

Lilly’s sworn testimony remains unsupported by any corroborating

evidence. Cf. Craig v. Dist. of Columbia,

,

373 n.23 (D.D.C. 2014) (considering the plaintiff’s testimony on

summary judgment only because there was no suggestion of perjury

or any evidence that undermined or contradicted his claims).

These issues directly challenge the existence of a genuine

dispute and make Mr. Lilly’s hostile work environment claim

“insufficiently meritorious to warrant the expense of a jury

trial.” Greene v. Dalton,

, 675 (D.C. Cir. 1999).

The parties disagree as to the weight the Court should

assign to Mr. Lilly’s “self-serving testimony.” Compare Def.’s

Mot., ECF No. 45 at 13 (“A jury that credited [Mr. Lilly’s]

testimony in its entirety could not conclude that any of these

incidents continued to occur after May 1[5], 2013.”), and Def.’s

Reply, ECF No. 54 at 8 (“[Mr. Lilly’s] self-serving testimony,

at times relying on hearsay, is insufficient[.]”), with Pl.’s

Opp’n, ECF NO. 48-1 at 24 (“Plaintiff’s own testimony can be

enough to withstand [the District’s] summary judgment motion,

and it[ is] the jury, not the Court, that has to judge [Mr.

Lilly’s] credibility.”). To support his position, Mr. Lilly

points to the D.C. Circuit’s opinion in Desmond v. Mukasey,

(D.C. Cir. 2008), where that court wrote that “there is

no rule of law that the testimony of a discrimination plaintiff,

33 standing alone, can never make out a case of discrimination that

could withstand a summary judgment motion.” Desmond,

(internal quotation marks omitted); see also Johnson v.

Perez,

(D.C. Cir. 2016) (“After all, evidence

a party proffers in support of its cause will usually, in some

sense, be ‘self-serving.’”).

While the Court credits the D.C. Circuit’s decision in

Desmond, the primary issue here is not that Mr. Lilly’s

deposition is “self-serving,” as the Court accepts as true his

“direct testimonial evidence” proffered in opposition to summary

judgment, see Greene, 164 F.3d at 674 (citing Anderson,

); Pierson,

; but rather that Mr.

Lilly has “fail[ed] to submit evidence that creates a genuine

factual dispute” for the time period in question, Musgrove,

. Apart from the Amended Complaint, which is

(1) not a consideration “beyond the pleadings,” see Celotex,

; (2) not considered uncontroverted evidence, and (3)

factually inconsistent with record evidence, it becomes readily

apparent that the record, including Mr. Lilly’s deposition

testimony, is “woefully deficient” as to any specific instances

of alleged harassment or discrimination that occurred between

May 15, 2013 and May 21, 2013, see Fed. Home,

; Pl.’s Opp’n, ECF No. 48-1 at 23 (only generally alleging

that acts of harassment occurred after May 15, 2013). “By

34 pointing to [this] absence of evidence[,]” the District may

succeed on summary judgment as to Mr. Lilly’s hostile work

environment claim, see Pierson,

; as Mr.

Lilly has not adequately alleged “a systematic policy or

practice of discrimination,” nor a single timely incident

“sufficiently related” to any alleged untimely incidents forming

“the same unlawful employment practice[,]” see Morgan,

; Baird v. Gotbaum,

(D.C. Cir.

2011) (requiring timely and untimely incidents to be “linked

into a coherent hostile environment claim”). As such, the Court

concludes that Mr. Lilly’s hostile work environment claim under

Title VII is time-barred, and furthermore that only alleged

discrete instances of discrimination or retaliation that

occurred on or after May 15, 2013 may proceed for further

analysis under Title VII. 12

12The Court declines to analyze, as unnecessary, the District’s argument that Mr. Lilly’s deposition testimony was based on inadmissible hearsay and should not be considered on summary judgment. See Def.’s Reply, ECF No. 54 at 8-9. In addition, the Court rejects the District’s broader exhaustion argument under Title VII. See Def.’s Mot., ECF No. 45 at 12 n.5. The District argues that Mr. Lilly’s March 2014 charge “did not raise allegations of name-calling, derogatory comments, sexual harassment, or most of the challenged employment actions that he alleges in the Amended Complaint[,]” and contends that even if he “could show the timeliness of his claims, most of his claims should still be dismissed for failure to exhaust.”

However, it is the District’s “burden to prove by a preponderance of the evidence that [Mr. Lilly] failed to exhaust [his] administrative remedies[,]” and “[m]eager, conclusory allegations that [he] failed to exhaust his administrative remedies will not satisfy 35 2. DCHRA: Mr. Lilly’s Hostile Work Environment Claim Is Time-Barred, Along with All Alleged Discrete Discriminatory or Retaliatory Acts Prior to June 16, 2013

The District also argues that Mr. Lilly’s DCHRA claims

based on alleged incidents prior to June 13, 2013 13 are time-

barred. See Def.’s Mot., ECF No. 45 at 14-15. The DCHRA requires

that “[a] private cause of action . . . be filed . . . within

one year of the unlawful discriminatory act, or the discovery

thereof[.]”

. However, “[t]he timely filing

of a complaint with the [D.C. Office of Human Rights] . . .

shall toll the running of the statute of limitations while the

complaint is pending.” Craig,

(quoting

D.C. Code § 2–1403.16(a)). Here, Mr. Lilly filed his Charge of

Discrimination on March 11, 2014 with the Alexandria Office of

Human Rights based on alleged violations of the DCHRA by

[that] burden.” Pierson v. Wash. Metro. Area Transit Auth.,

(D.D.C. 2011); see also Brown v. Marsh,

(D.C. Cir. 1985) (stating that the mere assertion of failure to exhaust is “clearly inadequate under prevailing regulations”). Here, the District has not made a “colorable showing of non-exhaustion,” instead only making “meager representations” that fail to allege specific facts “reasonably establishing” non-exhaustion. Brown,

; see Def.’s Mot., ECF No. 45 at 12 n.5 (citing to Mr. Lilly’s charge but not pointing to specific places in the Complaint that deviate from the allegations raised in that charge). In fact, the District does not allege specifics regarding exhaustion until its Reply brief. See Def.’s Reply, ECF No. 54 at 10. 13 The District changes this date in its reply brief to March 11,

2013 but does not specifically address why. See Def.’s Reply, ECF No. 54 at 4-7. The Court therefore proceeds with its own calculations as to the timeliness of Mr. Lilly’s DCHRA claims. 36 “District government agencies, officials[,] or employees.” D.C.

Code § 2–1403.03(b); see Def.’s Ex. Y, ECF No. 45-3 at 279;

Def.’s SOF Reply, ECF No. 54-1 at 6 ¶ 40. His claim was

automatically cross-filed with the EEOC in D.C., “which suffices

to toll the one-year statute of limitations for DCHRA claims.”

See Craig,

; Ibrahim v. Unisys Corp.,

(D.D.C. 2008) (noting a “worksharing

agreement” between the D.C. Office of Human Rights and the

EEOC). On February 12, 2015, the EEOC denied Mr. Lilly’s claim

and issued his right-to-sue notice, and Mr. Lilly then filed

this lawsuit on May 16, 2015. See Compl., Ex. A, ECF No. 1-3 at

1. The DCHRA statute of limitations was thus tolled from March

11, 2014—the date Mr. Lilly filed his charge—until February 12,

2015—the date his complaint was no longer administratively

pending and the clock resumed running, i.e., a period of

approximately eleven months. See D.C. Code § 2–1403.16(a).

Under the DCHRA, Mr. Lilly alleges discrimination,

retaliation, and hostile work environment claims through his

retirement date of August 16, 2013. See Pl.’s Opp’n, ECF No. 48-

1 at 25 (arguing that his DCHRA “claims are timely because he

has stated a continuing violation from 2011 until the date of

his discharge”). First, as to discrete acts, the DCHRA makes it

clear that any claims arising more than one year before Mr.

Lilly filed his charge are time-barred and do not benefit from

37 any tolling of the statute of limitations. See D.C. Code § 2–

1403.16(a); Def.’s Reply, ECF No. 54 at 4. Subtracting 365 days

from March 11, 2014—the date Mr. Lilly filed his charge—brings

the Court to March 11, 2013, such that any discrete unlawful

acts that occurred prior to March 11, 2013 are time-barred. The

same is true for alleged discrete unlawful acts between March

11, 2013 and May 22, 2013—when Mr. Lilly was placed on

administrative leave—which, even accounting for the eleven-month

tolling period, are still beyond the DCHRA’s one-year statute of

limitations. Per the Court’s calculations, the cut-off date for

the timeliness of discrete unlawful acts under the DCHRA is June

16, 2013. 14 This is because there is 1 year, 11 months, and 1 day

between June 16, 2013 and Mr. Lilly’s civil action filing date

of May 16, 2015, and 11 months and 1 day was the exact time that

the DCHRA statute of limitations was tolled between March 11,

2014 and February 11, 2015 (the day before the clock resumed

running once the EEOC denied Mr. Lilly’s claim on February 12,

2015). Therefore, the Court concludes that any of Mr. Lilly’s

discrete discriminatory or retaliatory claims occurring prior to

June 16, 2013 are time-barred under the DCHRA.

14The government appears to have incorrectly calculated this date as June 13, 2013. See Def.’s Mot., ECF No. 45 at 14. 38 Second, as to his DCHRA hostile work environment claim, 15 as

noted, Mr. Lilly was no longer a participant in MPD’s working

environment after he was placed on administrative leave on May

22, 2013, see Def.’s Ex. R, ECF No. 45-3 at 250; so any incident

contributing to “an ongoing pattern of discrimination” must have

occurred on or before May 21, 2013, see Pl.’s Opp’n, ECF No. 48-

1 at 26. However, as the Court just concluded, any incidents

occurring prior to June 16, 2013 are time-barred. Because more

than one year passed between any hostile act and the filing of

this action (minus the time tolled), the Court concludes that

Mr. Lilly’s hostile work environment claim under the DCHRA is

also time-barred. Therefore, only alleged discrete instances of

discrimination or retaliation that occurred on or after June 16,

2013 may proceed for further analysis under the DCHRA.

3. The District Has Not Waived a Timeliness or Statute of Limitations Argument Under Title VII or the DCHRA

Mr. Lilly urges the Court not to “entertain” the District’s

timeliness arguments under Title VII and the DCHRA because he

claims that this is the District’s “second bite at the apple” in

asserting such arguments. See Pl.’s Opp’n, ECF No. 48-1 at 25.

Specifically, Mr. Lilly contends that the District: (1) failed

15See supra note 11 (explaining that the different limitations rules for discrete acts versus ongoing hostile work environment claims under Title VII also apply to claims under the DCHRA). 39 to raise timeliness arguments in its Rule 12(b)(6) motion; and

(2) waived its right to a statute of limitations defense because

the District did not raise this defense in its initial Answer.

Id. Mr. Lilly points to Federal Rule of Civil Procedure 12(g)(2)

as the basis for his argument, claiming that the District’s

“belated untimeliness argument is barred by” that rule. Id.

Rule 12(g), in combination with Rule 12(h), “describe two

nonexhaustive ways in which” the Rule 12(b) defenses are waived.

Gilmore v. Palestinian Interim Self-Gov’t Auth.,

(D.D.C. 2014). Rule 12(g)(2) states that “a party that

makes a motion under this rule must not make another motion

under this rule raising a defense or objection that was

available to the party but omitted from its earlier motion.”

Fed. R. Civ. P. 12(g)(2). Rule 12(h) provides that “[a] party

waives any defense listed in Rule 12(b)(2)-(5) by . . . omitting

it from a motion in the circumstances described in Rule

12(g)(2); or . . . failing to either: (i) make it by motion

under this rule; or (ii) include it in a responsive pleading[.]”

Fed. R. Civ. P. 12(h)(1). “The collective import of these two

provisions is that ‘[i]f a party files a Rule 12(b) motion to

dismiss, it may not subsequently assert any Rule 12(b) defenses

that were available when the first Rule 12(b) motion was

filed.’” Gilmore,

(citation omitted); Pl.’s

40 Opp’n, ECF No. 48-1 at 25 (relying on Gilmore to advance Mr.

Lilly’s timeliness argument).

The Court concludes that Mr. Lilly’s argument based on

Rule 12(g)(2) is legally incorrect. First and foremost, that

rule pertains to Rule 12(b) defenses only, which do not include

any defenses pertaining to timeliness. See Fed. R. Civ. P.

12(b)(1)-(7). Instead, the statute of limitations, waiver, and

other time-related defenses are considered “affirmative

defenses” under Rule 8(c), which must be affirmatively raised in

a responsive pleading and not in a Rule 12 motion. See Fed. R.

Civ. P. 8(c)(1), 12(h). Second, even though the District filed

an earlier Rule 12(b)(6) motion to dismiss that did not raise

timeliness arguments, see Def.’s Mot. to Dismiss, ECF No. 13; it

is not now making another motion under Rule 12 that “rais[es] a

defense or objection that was available to [it] but omitted from

its earlier motion.” See Fed. R. Civ. P. 12(g)(2); Gilmore,

(applying Rule 12(g)(2)’s rule to a situation

where the defendants first moved to dismiss “[m]ore than a

decade ago” for lack of subject matter jurisdiction under Rule

12(b)(1) and then later moved to dismiss based on a lack of

personal jurisdiction under Rule 12(b)(2)). Instead of moving

again under Rule 12, the District is now moving for summary

judgment under Rule 56, and so the guidelines Mr. Lilly points

41 to under Rule 12(g)(2) are inapposite. 16 See Def.’s Reply, ECF

No. 54 at 7 (noting that in moving for summary judgment, the

District has presented evidence regarding the timeliness of Mr.

Lilly’s claims, which the Court finds appropriate at this stage

of the litigation); see also Fed. R. Civ. P. 56(b) (allowing a

party to move for summary judgment “at any time until [thirty]

days after the close of all discovery”).

The Court also rejects Mr. Lilly’s argument that the

District waived its right to a statute of limitations defense by

failing to raise it as an affirmative defense in its initial

Answer. See Pl.’s Opp’n, ECF No. 48-1 at 25. Not only does Mr.

Lilly not provide any caselaw to support this argument, but also

the Court settled this issue on October 26, 2020 by granting the

District’s motion requesting leave to amend its Answer to add

the statute of limitations as an affirmative defense. See Minute

Order (Oct. 26, 2020). Under that motion, Mr. Lilly also argued

that the District waived its statute of limitations defense

because it did not raise the argument in its Rule 12(b) motion

or its original Answer filed on October 12, 2016.

(citing

Pl.’s Opp’n to Def.’s Mot. for Leave to File First Am. Answer,

16The Court notes that the District uses the word “dismiss” when arguing that Mr. Lilly’s claims should be deemed time barred. See Def.’s Mot., ECF No. 45 at 12-15. However, the District’s motion is not styled as a Rule 12(b) motion to dismiss but as a Rule 56 motion for summary judgment. Thus, the Court does not assign weight to this choice of language. 42 ECF No. 64 at 3-4). The Court rejected that argument, applying

Rule 15(a)’s “generous standard” to “freely give leave” to the

District to amend its Answer.

(citing Fed. R. Civ. P.

15(a)(2)). The Court also noted that the District “raised

statute of limitations arguments in its motion for summary

judgment based on the discovery produced” and that “adding this

defense [did] not change the theory of the case, but is

consistent with discovery already provided[,]” and also did not

cause undue prejudice to Mr. Lilly.

The District thereafter

timely filed its Amended Answer on October 27, 2020, writing

that Mr. Lilly’s claims “are barred, in whole or in part, by the

applicable statute of limitations.” Def.’s Am. Answer, ECF No.

67 at 15. This added affirmative defense, along with the

District’s previously raised defense that Mr. Lilly “failed to

exhaust his administrative remedies and/or failed to comply with

other mandatory filing requirements[,]” operate to negate Mr.

Lilly’s present argument that the District waived a statute of

limitations defense under Title VII and the DCHRA.

;

see Def.’s Reply, ECF No. 54 at 4-5.

Because both Title VII and the DCHRA require the filing of

charges of discrimination within a certain time period following

the alleged unlawful incidents, Mr. Lilly cannot expect to be

“waived into court” by bypassing the timely exhaustion

requirements that these laws impose. See Kizas v. Webster, 707

(D.C. Cir. 1983) (labeling Title VII’s

statutory requirements “part and parcel of the congressional

design” for complaints to initiate at the agency level rather

than mere “technicalit[ies]”). As such, the Court reiterates its

prior conclusions that: (1) Mr. Lilly’s hostile work environment

claim is barred under Title VII and the DCHRA; 17 (2) Mr. Lilly’s

allegations of discrete discriminatory or retaliatory acts prior

to May 15, 2013 are barred under Title VII; and (3) Mr. Lilly’s

allegations of discrete discriminatory or retaliatory acts prior

to June 16, 2013 are barred under the DCHRA.

B. Mr. Lilly Has Failed to Produce Sufficient Evidence from Which a Reasonable Jury Could Conclude that the District’s Stated Reasons for the Alleged Discriminatory or Retaliatory Acts Are Pretextual

Mr. Lilly’s remaining claims involve a mix of discrete

discriminatory and retaliatory acts under Title VII and the

DCHRA, including allegations “that he was subject to unwarranted

17Both parties proffer arguments regarding whether the District can be liable via a hostile work environment theory under Title VII and the DCHRA for the alleged sexual harassment by Officers Pinto and Clifford. Compare Def.’s Mot., ECF No. 45 at 15-17 (“Even if [Mr. Lilly’s] claims of sexual harassment against two of his co-workers were not procedurally barred, the Court should grant summary judgment because their alleged misconduct cannot be imputed to the District.”), with Pl.’s Opp’n, ECF No. 48-1 at 26-29 (claiming that Mr. Lilly “reported the sexual harassment by Officers Pinto and Clifford” but that “the District failed to implement prompt and corrective action” and can be held liable for this failure). The Court does not consider the merits of these arguments since it has concluded that Mr. Lilly’s hostile work environment claim, which includes these sexual harassment allegations, is time barred under Title VII and the DCHRA. 44 investigations, excessive discipline, and forced to retire

because of his sexual orientation, gender, or in retaliation for

complaints he made about discrimination.” Def.’s Mot., ECF No.

45 at 17. As discussed, to establish a discrimination claim, Mr.

Lilly must allege that he was subject to an adverse action based

on his gender and/or sexual orientation. See Carter-Frost,

; Brady,

. Similarly, to prove

retaliation, Mr. Lilly must show that he engaged in a protected

activity and that he suffered a materially adverse action by MPD

as a causal result of having engaged in that activity. See

Carter-Frost,

; Dieng, 412 F. Supp. 3d at

8. “The D.C. Circuit, however, has instructed that when

considering a motion for summary judgment in an employment

discrimination [or retaliation] case, a distinct court need not

consider whether a plaintiff has actually satisfied the elements

of a prima facie case if the defendant has offered a legitimate,

non-discriminatory reason for its actions.” Musgrove,

(citing Brady,

).

A legitimate, non-discriminatory reason is a “clear and

reasonably specific” explanation for the employer’s actions,

i.e., “simply explain[ing] what [it] has done or produc[ing]

evidence of [those] legitimate nondiscriminatory reasons.”

Burdine,

(internal quotation marks omitted).

“[I]n all instances where a defendant has asserted a legitimate,

45 non-discriminatory reason for its conduct, the Court shall

evaluate all of the evidence in the record” when assessing the

legitimacy of that reason. Washington v. Chao,

(D.D.C. 2008). Under the Court’s evaluation of an

discrimination claim on summary judgment, the “inquiry collapses

into a single question: ‘[h]as the employee produced sufficient

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

asserted non-discriminatory reason was not the actual reason and

that the employer intentionally discriminated against the

employee on the basis of race, color, religion, sex, or national

origin?’”

(quoting Brady,

). Likewise, under

the Court’s assessment of a retaliation claim on summary

judgment, the “central question” reduces to whether the employee

has “produced sufficient evidence for a reasonable jury to find

that the employer’s asserted . . . non-retaliatory reason was

not the actual reason [for its adverse action] and that the

employer intentionally . . . retaliated against the employee.”

Walker,

. Upon the articulation of a legitimate

reason for the alleged discriminatory or retaliatory adverse

action, the burden shifts back to the plaintiff to rebut the

defendant’s stated reason as pretextual. See Musgrove,

. The plaintiff can “carry this burden by showing

that a non-discriminatory reason offered by [the] defendant is

false,”

(citing Montgomery v. Chao,

(D.C.

46 Cir. 2008)); or by “presenting enough evidence to allow a

reasonable trier of fact to conclude that the employer’s

proffered explanation is unworthy of credence[,]”

(quoting

Desmond,

).

Here, the parties disagree as to whether the District has

stated legitimate, non-discriminatory reasons for five of its

actions: (1) Mr. Lilly’s disability retirement; (2) Mr. Lilly’s

five-day suspension following his receipt of several AWOL

citations; (3) IAB’s investigation into Mr. Lilly’s encounter

with U.S. Park Police and his subsequent citation for corrective

action in the form of an official reprimand; (4) IAB’s

investigation into MPD’s receipt of an anonymous complaint

regarding Mr. Lilly’s conduct as an officer; and (5) IAB’s

investigation into whether Mr. Lilly provided false information

in his MPD recruitment package. 18 Compare Def.’s Mot., ECF No. 45

at 18-22, and Def.’s Reply, ECF No. 54 at 12-15, with Pl.’s

Opp’n, ECF No. 48-1 at 30-39. For the reasons discussed below,

the Court concludes that, for all five actions, a reasonable

jury could find that the District has satisfied its burden to

18The District proffered a reason for Mr. Lilly’s receipt of a fine following his retirement—that he did not serve a fifteen- day suspension prior to retiring. See Def.’s Mot., ECF No. 45 at 22 (citing Def.’s Ex. V, ECF No. 45-3 at 269). Mr. Lilly replies that he did not “cite[] this fine as evidence of the District’s discriminatory conduct.” Pl.’s Opp’n, ECF No. 48-1 at 39. The Court therefore does not consider this fine in its analysis. 47 articulate legitimate, non-discriminatory reasons that Mr. Lilly

has not shown are pretextual. Because the District has “done

everything that would be required of [it,]” it is entitled to

summary judgment as to Mr. Lilly’s remaining discrimination and

retaliation claims. Brady,

.

1. Mr. Lilly’s Disability Retirement

The District argues that it had a legitimate, non-

discriminatory reason for Mr. Lilly’s disability retirement,

specifically that his retirement was ordered by the PFRRB for

the reasons set forth in the PFC’s April 19, 2013 report. See

Def.’s Mot., ECF No. 45 at 18; Def.’s Ex. D, ECF No. 45-3 at 69.

That report noted that Mr. Lilly was on limited duty status

since September 2012 “following deterioration in his work

performance and emotional stability after an exposure to

bedbugs.” Def.’s Ex. D, ECF No. 45-3 at 74. The report reviewed

Mr. Lilly’s medical and mental health records to conclude that

he “continue[d] to struggle with symptoms of a mood disorder,

specifically depression and anxiety with obsessive features to a

degree that [could] adversely impact his ability to perform the

requirements of the job.” Id. at 69, 74. The report also

concluded that Mr. Lilly presented “with symptoms of depression,

anxiety, and behavioral disinhibition which disable[d] his

insight and capacity to function as a police officer[,]” and it

recommended retirement pursuant to

, 5-634,

48 and 5-710.

. That the report made these findings is

an undisputed fact. See Def.’s SOF Reply, ECF No. 54-1 at 5 ¶¶

29-31. The District states that in August 2013, the PFRRB

ordered Mr. Lilly’s retirement after determining that he “was

incapacitated from further duty by reason of a disability

incurred in the performance of duty[.]” See Def.’s Mot., ECF No.

45 at 19; Def.’s Ex. W, ECF No. 45-3 at 271; Def.’s Ex. X, ECF

No. 45-3 at 275; Def.’s SOF Reply, ECF No. 54-1 at 6 ¶¶ 38-39.

Having asserted a legitimate, non-discriminatory, and non-

retaliatory reason for his disability retirement, the burden

shifts back to Mr. Lilly to demonstrate that the District’s

“stated reasons were pretextual, and the real reasons were

prohibited discrimination [on the basis of his gender or sexual

orientation] or retaliation[.]” Walker,

. In an

attempt to meet his burden, MR. Lilly argues that: (1) the

District’s “face value reliance” on the PFC’s report is “unwise”

because that report relied primarily on “a six-month old duty

evaluation and a six-page [psychiatric] questionnaire” that led

to “a lack of quality in the District’s investigation[,]” and

(2) that he “was able and willing to work in any less-than-full-

duty capacity within [MPD], [and] he should have never been

processed for involuntary retirement under D.C. Code [ ] § 5-

710” per other sections of the D.C. Code, specifically §§ 5-

633(h)(3)(A)-(B) and 5-634. Pl.’s Opp’n, ECF No. 48-1 at 30-32.

49 Even drawing all inferences in Mr. Lilly’s favor, the Court

is not persuaded that this evidence could convince a reasonable

jury to conclude that the District’s stated reasons for his

retirement were false and instead based on intentional gender

and/or sexual orientation discrimination. Even if the PFC report

relied heavily on “unfair” sources, see Pl.’s Opp’n, ECF No. 48-

1 at 30-31; Mr. Lilly points to “no evidence in [the] record

that Dr. Morote took [his] sexual orientation [or gender] into

account when she made her recommendation” that Mr. Lilly’s

mental health diagnoses adversely impacted his ability to

function as an MPD officer, see Def.’s Reply, ECF No. 54 at 12.

Nor is there any evidence that the PFRRB considered Mr. Lilly’s

gender or sexual orientation before ordering his retirement.

Instead, following the issuance of the PFC’s report, the PFRRB

held a hearing on July 18, 2013 to review the evidentiary

material and hear testimony from Mr. Lilly and Dr. Morote before

reaching a reasoned conclusion as to his disability retirement.

See Pl.’s Ex. A, ECF No. 48-3 at 12; Def.’s Ex. BB, ECF No. 45-3

at 291-93. Mr. Lilly has also not otherwise presented “evidence

substantiated by the record[,]” Burton v. Dist. of Columbia,

(D.D.C. 2015); that the District treated

similarly situated heterosexual officers more favorably than him

in the same factual circumstances, see Carter-Frost,

(quoting Brady,

); or that the

50 District has a pattern of treating poorly officers in the same

protected group as him, see Walker,

(citing

Brady,

n.3). 19 Nor does he establish that the

District deviated “from established procedures or criteria,”

id.; since the D.C. Code sections that Mr. Lilly cites are

inapposite, as they pertain to MPD officers “who sustained, in

the performance of duty, any serious or life-threatening injury

or illness for which [they] require[d] critical care treatment

in a hospital intensive care unit or its equivalent,” which is

not applicable to Mr. Lilly, see

(h)(1)-(3).

Neither is the Court persuaded that Mr. Lilly’s evidence

could convince a reasonable jury to conclude that the District’s

stated reason for his retirement was based on retaliation.

Temporal proximity between an employee’s protected activity and

an employer’s adverse action “is a common and often probative

form of evidence of retaliation.” Walker,

(citing Taylor v. Solis,

(D.C. Cir. 2009)).

Yet, Mr. Lilly does not direct the Court’s attention to any

record evidence indicating that the PFRRB’s decision followed

19Mr. Lilly attempted to make “similarly situated” comparisons between himself and fellow officers in his Amended Complaint. See Am. Compl., ECF No. 9 at 8 ¶¶ 39-40, 10 ¶ 48, 16 ¶ 78. Yet, he never goes “beyond the pleadings” to support these claims with “evidence substantiated by the record.” Celotex Corp. v. Catrett,

,

(1986); Burton v. Dist. of Columbia,

(D.D.C. 2015). 51 any protected activity closely in time. And even if he had, at

the summary judgment stage, “positive evidence beyond mere

proximity is required to defeat” the District’s stated reason

for his retirement. See Kurtiev v. Shell, No. 15-cv-1839,

, at *11 (D.D.C. June 1, 2020) (quoting Woodruff v.

Peters,

(D.C. Cir. 2007)).

For these reasons, the Court concludes that Mr. Lilly has

failed to provide evidence from which “a reasonable jury could

not only disbelieve the [District’s] reasons, but conclude that

the real reason” for his disability retirement “was a prohibited

one.” Walker,

.

2. Mr. Lilly’s Five-Day Suspension Following Several AWOL Citations

The District also argues that it had legitimate, non-

discriminatory reasons for citing Mr. Lilly for being AWOL on

January 26, 2013; January 30, 2013; and April 18, 2013 because

“he was, in fact, absent without leave.” Def.’s Mot., ECF No. 45

at 19. The record supports it being undisputed that Mr. Lilly

was AWOL on those three dates. See Def.’s Ex. J, ECF No. 45-3 at

190-91 (citing Mr. Lilly for being AWOL for eight hours on

January 26, 2013 when he took prescription medication and

overslept, causing him to not report for work that day); Def.’s

Ex. K, ECF No. 45-3 at 197, 200-03 (citing Mr. Lilly for being

AWOL for five hours and fifteen minutes on January 30, 2013 when

52 he admittedly overslept and for making false statements to his

superior officers about it); Def.’s Ex. O, ECF No. 45-3 at 241-

43 (citing Mr. Lilly for being AWOL for five and a half hours on

April 18, 2013 and for making false statements to his superior

officers about it); see also Def.’s SOF Reply, ECF No. 54-1 at 3

¶¶ 14-17, 4 ¶ 24. Because of these AWOL incidents, the District

states that it had legitimate, non-discriminatory reasons for

disciplining Mr. Lilly and on May 15, 2013, imposing a five-day

suspension, to be held in abeyance for one year. See Def.’s

Mot., ECF No. 45 at 19; Def.’s Ex. S, ECF No. 45-3 at 252-55

(attaching a copy of the “Commander’s Resolution Conference

Worksheet,” which calculated Mr. Lilly’s suspension to be five

days, “with all [five] held in abeyance for [twelve] months”).

The Court concludes that the District has articulated

legitimate, non-discriminatory reasons for Mr. Lilly’s AWOL

citations and five-day suspension, specifically that he was AWOL

on the relevant dates. While Mr. Lilly does not dispute “the

fact that he was charged with being AWOL,” he attempts to

establish pretext for the District’s actions by “disput[ing] the

motive and circumstances behind” MPD’s formal investigations

into his three 2013 AWOL incidents. See Pl.’s Opp’n, ECF No. 48-

1 at 33-34. To do so, Mr. Lilly proffers three Notifications of

Tardiness and one AWOL notice from 2011 to 2012 and argues that

“none of these instances triggered an investigation to the

53 magnitude seen from January 2013 through Ma[]y 2013.” Id. at 33;

see also Pl.’s Ex. L, ECF No. 48-3 at 285 (placing Mr. Lilly in

LWOP status for one hour due to his tardiness on February 11,

2011); Pl.’s Ex. M, ECF No. 48-3 at 287 (placing Mr. Lilly in

LWOP status for two hours due to his tardiness on September 29,

2012); Pl.’s Ex. N, ECF No. 48-3 at 289 (placing Mr. Lilly in

LWOP status for two hours due to his tardiness on November 3,

2012); Pl.’s Ex. O, ECF No. 48-3 at 291 (placing Mr. Lilly in

AWOL status due to his six-hour absence on November 20, 2012).

Mr. Lilly contends that after filing his complaint with Sergeant

Carlos Mejia and MPD’s EEO Compliance Branch on January 13,

2013, see Def.’s Ex. H, ECF No. 45-3 at 122-24; Def.’s Ex. I,

ECF No. 45-3 at 126-85 (attaching the EEO Compliance Branch’s

final report as to Mr. Lilly’s allegations); he was retaliated

against with “increased scrutiny” and formal investigations into

each of his 2013 AWOL incidents, see Pl.’s Opp’n, ECF No. 48-1

at 33-34. Mr. Lilly claims that “[t]he dichotomy between the

dissected investigations of [him] from January 2013 through May

2013 and the laissez-faire one-page notices received by [him]

from February 2011 through November 2012” indicate pretext. Id.

at 34.

The Court concludes that Mr. Lilly has not “put forward

enough evidence to defeat the proffer and support a finding of

retaliation” for filing a complaint with MPD’s EEO Compliance

54 Branch in relation to his AWOL citations and five-day

suspension, Woodruff,

; as “imposing disciplinary

measures [is] legitimate[ly] [ ] warranted after a policy

infraction[,]” see Carter-Frost,

(rejecting the plaintiff’s pretext argument and finding that her

“involuntary detail to the Fifth District” as a result of

violating MPD policy, or “‘corrective action’ for her

infraction,” was a legitimate, non-discriminatory action);

Baloch,

(finding it legitimate that an employer

took adverse action because the “disciplinary measures . . .

occurred only after various infractions” and therefore, “[g]ood

institutional administration” justified discipline). Indeed, Mr.

Lilly “concedes the infractions that formed the basis for” MPD’s

responses, Baloch,

; and admitted to being tardy

and AWOL in all the above incidents (three notices of tardiness

and four citations for being AWOL, totaling seven disciplinary

incidents between 2011 and 2013), see Pl.’s Opp’n, ECF No. 48-1

at 33; Def.’s SOF Reply, ECF No. 54-1 at 3 ¶¶ 14-17, 4 ¶ 24, 7

¶¶ 41-44. As such, the Court concludes that Mr. Lilly has not

produced evidence, apart from “unsupported conjecture,” Def.’s

Reply. ECF No. 54 at 13; to prove that the District’s asserted

reasons for its challenged disciplinary actions “were so ill-

justified as to allow a jury to conclude that they were not the

55 actual reasons and that he suffered retaliation for his

discrimination complaints[,]” Baloch,

.

3. IAB’s Three Internal Affairs Investigations into Mr. Lilly’s Conduct

Finally, the District argues that it had legitimate, non-

discriminatory reasons for conducting “investigations into

allegations of misconduct against [Mr. Lilly] during the months

leading up to his retirement.” Def.’s Mot., ECF No. 45 at 19-20.

The District proffers explanations for three investigations,

alleging that “each investigation was based on a legitimate

inquiry into whether [Mr. Lilly] violated MPD policies.” Id. at

20-22. Mr. Lilly counters that the District’s reasons “are

littered with inconsistencies, contradictions, and deviation[s]

from policy.” Pl.’s Opp’n, ECF No. 48-1 at 29. These three IAB

investigations are addressed in turn below.

a. IAB’s Investigation into Mr. Lilly’s Encounter with U.S. Park Police and His Subsequent Citation for Corrective Action in the Form of an Official Reprimand

First, the District states that IAB opened an investigation

into whether Mr. Lilly committed misconduct during an encounter

with two U.S. Park Police officers after one of those officers

reported the incident to MPD. See Def.’s Mot., ECF No. 45 at 20;

Def.’s Ex. M, ECF No. 45-3 at 209, 215. The undisputed facts and

record evidence indicate that on April 11, 2013, the U.S. Park

Police contacted MPD after they encountered Mr. Lilly walking

56 near a ravine on the shoulder of the George Washington Memorial

Parkway. See Def.’s Ex. M, ECF No. 45-3 at 209, 214-15; Def.’s

SOF Reply, ECF No. 54-1 at 3-4 ¶ 19. When questioned by the

officers, Mr. Lilly identified himself as an MPD officer and

displayed a duplicate copy of his MPD badge, despite his police

powers having been previously revoked in September 2012. See

Def.’s Ex. F, ECF No. 45-3 at 90; Def.’s Ex. M, ECF No. 45-3 at

215; Def.’s SOF Reply, ECF No. 54-1 at 4 ¶ 20. Following the

encounter, the U.S. Park Police sent MPD 4D a copy of the

incident report. See Def.’s Ex. M, ECF No. 45-3 at 215.

Afterwards, IAB opened an investigation and issued its final

investigative report on May 22, 2013, recommending that Mr.

Lilly be cited for corrective action in the form of an official

reprimand “for violating General Order 120.21, Attachment A,

Part A, 25,” which governs “[a]ny conduct not specifically set

forth in this order, which is prejudicial to the reputation and

good order of the police force[.]” Id. at 209, 215. IAD

concluded that by displaying his spare MPD badge while his

police powers were revoked, Mr. Lilly had engaged in conduct

that was “prejudicial to the reputation and good order of the

police force” and “detrimental” to MPD. Id. at 215.

In discussing the District’s reason for this investigation,

the parties focus on facts that paint a different picture of Mr.

Lilly’s behavior on the date in question. Compare Def.’s Mot.,

57 ECF No. 45 at 20 (noting that Mr. Lilly was “wearing unusual

attire including a belt of fake ammunition” and “was talking in

circles”), with Pl.’s Opp’n, ECF No. 48-1 at 35 (describing Mr.

Lilly’s demeanor on the scene as “polite, cooperative,

professional and not rude or demanding”). Regardless of how the

facts are characterized, the Court concludes that the District

has stated a legitimate, non-discriminatory reason for this

investigation. The undisputed facts indicate that the U.S. Park

Police, an independent federal agency, contacted MPD during the

incident to verify Mr. Lilly’s identity as an MPD officer after

he displayed his spare badge to the officers, and that following

this encounter, the U.S. Park Police shared its incident report

with MPD 4D. See Def.’s SOF Reply, ECF No. 54-1 at 3-4 ¶ 19;

Def.’s Ex. M, ECF No. 45-3 at 215. After being informed of this

off-duty incident, the District initiated its investigation, and

while Mr. Lilly claims that the “true reason” for the

investigation “was because [he] looked too ‘gay’ to be an

office[r,]” Pl.’s Opp’n, ECF No. 48-1 at 36; “there is no basis

in the record to believe that the investigation was unfounded or

initiated for pretextual reasons[,]” Carter-Frost,

. Mr. Lilly attempts to establish pretext by claiming

that the Park Police officers’ reports and statements focused on

his appearance and that he was dressed in a manner “not normally

associate[d] with a police officer,” based on his clothing,

58 makeup, and nail attire. See Pl.’s Opp’n, ECF No. 48-1 at 34-35.

However, none of these details establish that IAB, or even the

Park Police, investigated Mr. Lilly because of his gender or

sexual orientation. See id. at 35 (admitting that “[n]othing in

the witness statements indicate[s] why [the Park Police]

reported [him] to the 4th District”). Nor does Mr. Lilly adduce

evidence that other heterosexual MPD officers who were involved

in off-duty incidents were treated more favorably and not

similarly investigated. See Carter-Frost,

-

72; Walker,

(citing an “employer’s better

treatment of similarly situated employees outside the

plaintiff’s protected group” as a way to establish pretext).

Moreover, the undisputed facts indicate that Mr. Lilly

admitted to displaying his spare MPD badge while his police

powers were revoked. Def.’s SOF Reply, ECF No. 54-1 at 4 ¶ 20;

Def.’s Ex. M, ECF No. 45-3 at 215. Although not conduct

“specifically outlined in [MPD’s] orders or directives,” MPD

maintains a General Order prohibiting prejudicial conduct to the

police force, and IAB concluded that Mr. Lilly violated this

General Order with his “detrimental” conduct and cited him with

an official reprimand as a result. See Def.’s Ex. M, ECF No. 45-

3 at 215. Assuming this was an adverse action, the Court has

already noted that imposing disciplinary measures is a

legitimate course of action following misconduct that violates

59 an employer’s policies. See Carter-Frost,

.

Furthermore, to the extent Mr. Lilly attempts to demonstrate

discrimination and/or retaliation based on temporal proximity

between this IAB investigation and “the middle of” MPD’s EEO

Compliance Branch investigation, the Court rejects that

argument, as it was Mr. Lilly himself who initiated the incident

with the Park Police on April 11, 2013. See Pl.’s Opp’n, ECF No.

48-1 at 35-36. Therefore, having received no competent evidence

that the District’s stated explanation is unworthy of credence,

the Court concludes that Mr. Lilly has failed to carry his

burden of persuasion on this issue. See Musgrove,

.

b. IAB’s Investigation into MPD’s Receipt of an Anonymous Complaint Regarding Mr. Lilly’s Conduct as an Officer

The District next states that IAB opened an investigation

into Mr. Lilly’s conduct as an officer because on January 7,

2013, it received an anonymous complaint that he had “conducted

himself in a manner that was unbecoming” of an MPD officer. See

Def.’s Mot., ECF No. 45 at 21; Def.’s Ex. N, ECF No. 45-3 at

225. The complaint alleged that Mr. Lilly had posted

inappropriate YouTube videos and that he was mentally ill. See

Def.’s Ex. N, ECF No. 45-3 at 225. On January 13, 2013, the case

was assigned to an IAD detective, who began the investigation.

. The investigation concluded with IAB’s April 17,

60 2013 final investigative report, in which IAB found that Mr.

Lilly had exercised his First Amendment rights in the YouTube

videos and therefore recommended closing the investigation due

to “insufficient facts.”

. IAB thereafter forwarded

the anonymous allegation regarding Mr. Lilly’s mental status to

MPD’s PFC for review because it was not equipped to assess his

mental condition.

. Having received a complaint from a

third-party regarding Mr. Lilly’s conduct as an MPD officer, the

District has proffered legitimate, non-discriminatory reasons

for opening this investigation, and the burden shifts back to

Mr. Lilly to demonstrate that these stated reasons were

pretextual, “and the real reasons were prohibited discrimination

or retaliation[.]” Walker,

.

To meet this burden, Mr. Lilly argues that discrimination

and retaliation are proven based on the way IAB conducted its

investigation, which he claims was contrary to the procedure

outlined in MPD’s General Order for Processing Citizen

Complaints. See Pl.’s Opp’n, ECF No. 48-1 at 36-38; Pl.’s Ex. J,

ECF No. 48-3 at 239-58. Yet, the record evidence indicates that

MPD’s policy “is to accept all citizen complaints, to include

anonymous complaints[.]” Pl.’s Ex. J, ECF No. 48-3 at 240. That

IAB’s investigation may have deviated slightly from the outlined

procedure (i.e., as Mr. Lilly claims, taking more than three

business days to contact the complainant), see id. at 246; Pl.’s

61 Opp’n, ECF No. 48-1 at 37; does not give rise to any inference

of discrimination or retaliation, either in the initiation of

the investigation or in the way it was conducted, see Baloch,

. Neither does Mr. Lilly benefit from a temporal

proximity argument, as MPD received the anonymous complaint

before he reported the locker incident to Sergeant Carlos Mejia

on January 13, 2013. See Def.’s Ex. N, ECF No. 45-3 at 225;

Def.’s Ex. H, ECF No. 45-3 at 122. And, the IAB investigation

cleared Mr. Lilly of misconduct following his reporting of the

locker incident, thus negating any inference of discrimination

or retaliation. See Def.’s Ex. N, ECF No. 45-3 at 234.

Regardless, the Court does not conclude that this

investigation resulted in any adverse action against Mr. Lilly.

Generally, “the ‘mere initiation’ of an investigation may not

constitute a materially adverse action[.]” King v. Holder,

(D.D.C. 2015) (citing Ware v. Billington,

(D.D.C. 2004)). And an investigation is not

usually considered adverse unless it results in “materially

adverse consequences affecting the terms, conditions, or

privileges of” a plaintiff’s employment or future employment

opportunities.

(citation omitted). Here, no such

adverse consequences emerged, as Mr. Lilly admits he was not

disciplined following the conclusion of IAB’s investigation.

Pl.’s Opp’n, ECF No. 48-1 at 36. Without the requisite adverse

62 action, no reasonable jury could conclude that Mr. Lilly

established discrimination or retaliation under Title VII or the

DCHRA for this claim.

c. IAB’s Investigation into Whether Mr. Lilly Provided False Information in His MPD Recruitment Package

Finally, the District states that IAB conducted an

investigation from June 19, 2013 to August 8, 2013 to determine

whether Mr. Lilly “provided false information in his drug use

and medical history statement for his recruitment package.”

Def.’s Mot., ECF No. 45 at 21. The District states that IAB

opened this investigation following MPD PFC’s receipt of a

letter from Dr. Walker Lyerly, Mr. Lilly’s personal psychiatrist

for the past sixteen years, containing information regarding his

medical status that conflicted with his recruitment package. Id.

at 21-22. On August 8, 2013, IAB issued its final investigative

report, concluding that Mr. Lilly intentionally lied during the

recruitment process regarding his medical and mental health

history. See Def.’s Ex. T, ECF No. 45-3 at 258-62.

The District has provided legitimate, non-discriminatory

reasons for conducting this third IAB investigation into Mr.

Lilly’s conduct, and the Court does not conclude that the

evidence is such to make a reasonable jury disbelieve these

reasons or conclude that the real reasons for the investigation

were discrimination or retaliation. See Walker,

1092-93. Mr. Lilly claims that the District used this

investigation to “cover up [its] true, longstanding motivations

for penalizing” him but does not cite anything from the record

to support this statement. See Pl.’s Opp’n, ECF No. 48-1 at 39.

While this investigation concluded the day before the PFRRB

issued Mr. Lilly’s interim retirement order, it began because of

information received from a third-party and occurred long after

Mr. Lilly’s three instances of internal reporting (October 29,

2012; January 13, 2013; and April 18, 2013), thereby negating

inferences of retaliation or discrimination. Thus, even drawing

all inferences in Mr. Lilly’s favor and assuming as true the

PFC’s awareness of Mr. Lilly’s treatment by Dr. Lyerly from the

age of thirteen, a reasonable jury would not believe that IAB—a

separate MPD entity from the PFC—had any legitimate reason to

open an investigation or access Mr. Lilly’s PFC medical records

until receipt of Dr. Lyerly’s letter. As such, the Court

concludes that Mr. Lilly has failed to provide enough evidence

to rebut the District’s stated reasons for this IAB

investigation.

V. Conclusion

Drawing every justifiable inference in Mr. Lilly’s favor,

as the Court must, it finds no basis under Title VII or the

DCHRA upon which a reasonable factfinder could conclude that the

District had discriminatory intent based on his gender and/or

64 sexual orientation, or was retaliating against him for taking

part in a protected activity. Accordingly, the District’s Motion

for Summary Judgment, ECF No. 45, is GRANTED. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge February 21, 2023

65