UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LUIGI BUITRAGO,

Plaintiff, v. No. 18-cv-261(EGS) DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff Luigi Buitrago (“Mr. Buitrago” or “Plaintiff”)

initiated this suit against the District of Columbia (“the

District” or “Defendant”) based on Defendant’s response to Mr.

Buitrago’s disability. See Third Am. Compl., ECF No. 29 ¶¶ 17-

79. Mr. Buitrago’s remaining claims against Defendant are: (1)

discrimination on the basis of national origin under Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e-2 et seq.; (2) discrimination in violation of the

Americans with Disabilities Act (“ADA”),

et

seq.; and (3) retaliation in violation of Title VII and the ADA.

See Mem. Op. (“MTD Op.”), ECF No. 35 at 35. 1 Pending before the

Court is Defendant’s Motion for Summary Judgment. See Def.’s

Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 45 at 1. Upon careful

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. consideration of the motion, the response, the reply thereto,

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

GRANTS Defendant’s Motion for Summary Judgment.

I. Background 2

Mr. Buitrago began working for the District as a Public

Health Analyst in the Department of Health in 2005. Def.’s

Statement of Undisputed Material Facts (“SOMF”), ECF No. 45-1

¶ 1. The following year, he was injured on the job, which

required several surgeries, disability leave in 2011, and

ongoing physical therapy.

. The District provided Mr.

Buitrago with an ergonomic workstation as an accommodation for

his injury.

. He complained that the station did not

give him enough workspace and his union later filed a grievance

against the District regarding the issue.

. The

2 When responding to a motion for summary judgment, the Federal Rules of Civil Procedure, the Rules of the U.S. District Court for the District of Columbia, and the Standing Order of this Court all require a party to identify which of the opposing party’s facts they consider in dispute. See Fed. R. Civ. P. 56(c)(1)(A); LCvR 7(h)(1); Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan, ECF No. 2 at 8-10. Mr. Buitrago fails to address any of the facts the District offers in its Statement of Undisputed Material Facts. Furthermore, Mr. Buitrago only lists four items in his “Statement of Genuine Issues,” none of which directly address any of the facts asserted by the District. See Mem. in Supp. of Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 47 at 1-2. Therefore, as permitted by the Federal Rules of Civil Procedure and this District’s Local Rules, the Court considers Defendant’s statement of material facts undisputed, see Fed. R. Civ. P. 56(e)(2); LCvR (h)(1), and those facts form the basis for this background. 2 District hired an ergonomist and he concluded that although the

workstation could not be altered “to meet [Mr. Buitrago’s]

specifications,” it also “did not present any ergonomic barriers

to [Mr. Buitrago] performing his work.”

.

In 2012, Mr. Buitrago was laid off as part of a reduction

in force and he filed an EEOC charge alleging his termination

was discrimination based on his disability. See

. In

2013, Mr. Buitrago and the District entered into a settlement

agreement which reinstated Mr. Buitrago and provided him

backpay, accrued leave, and a continuation of his flexible work

schedule to accommodate his physical therapy.

. Upon

returning to work in 2013, Mr. Buitrago again objected to the

ergonomic workstation, but in 2015 dropped his request for the

accommodation. See

.

In June 2015, Mr. Buitrago filed another EEOC charge,

alleging retaliation and discrimination based on his sex,

national origin, and disability.

. His charge alleged

that his supervisor violated the 2013 settlement agreement by

not providing him with a flexible work schedule.

. He

alleged that this action was also discrimination based on his

national origin because he found out that two of his African-

American co-workers were provided flexible work schedules and he

was not.

. The District claimed that Mr. Buitrago was

denied his request for an eight-hour work schedule because the

3 District policy requires an eight-hour workday with a mandatory

thirty-minute, uncompensated lunch period.

.

In 2016, Mr. Buitrago claimed that the District stopped

paying for his physical therapy appointments.

. However,

the District explained that Mr. Buitrago’s “pre-approved

physical therapy was authorized and paid for,” but his new

requests for chiropractic care were not covered, a decision made

not by the District but by the third-party worker’s compensation

carrier. See

. Mr. Buitrago also claims that he was

transferred to a different position within the District, but

that the transfer was intended to “find out if there was a

better match for [him] and the program in an effort to make

[him] more comfortable.”

. Mr. Buitrago believed the

change was “retaliatory because it occurred after he submitted

an EEOC complaint.”

. Finally, Mr. Buitrago claims that

he was not given work by his direct supervisor when he returned

to his previous position, but also stated that he “remained in

charge of all the programs, assisted co-workers, and received

assignments from the division chief.”

.

In 2017, Mr. Buitrago was notified that his temporary

appointment was not being renewed and he was terminated later

that year. See Pl.’s Ex. D, ECF No. 47-4 at 1. Mr. Buitrago’s

employment in a term position was specified in his 2013

settlement agreement. See SOMF, ECF No. 45-1 ¶ 31.

4 Mr. Buitrago initiated this suit in February 2018. See

Compl., ECF No. 1. After several motions to dismiss and

responsive amended complaints, Mr. Buitrago filed his operative

Third Amended Complaint in June 2019. Third Am. Compl., ECF No.

29. He alleged four counts: (1) that the District discriminated

against him on the basis of his national origin,

;

(2) that the District discriminated against him based on his

disability,

; (3) that the District retaliated

against him in several ways including transferring him, forcing

him to reapply for his position, preventing him from performing

his duties, withdrawing payment for his physical therapy, and

ultimately terminating him,

; and (4) that the

District breached the 2013 settlement agreement,

.

The District filed its Motion to Dismiss the Third Amended

Complaint in July 2019. See Defs.’ Mot. to Dismiss Pl.’s Third

Am. Compl., ECF No. 30. In March 2020, this Court granted

Defendants’ motion for the breach of contract claim and some of

the retaliatory acts identified in Mr. Buitrago’s claims of

retaliation, but let his claims for national origin

discrimination, disability discrimination, and retaliation based

on four specific adverse actions proceed. See MTD Op., ECF No.

35 at 35.

In March 2021, the District filed the current Motion for

Summary Judgment. See Def.’s Mot., ECF No. 45. Mr. Buitrago

5 filed his brief in opposition the following month, see Pl.’s

Opp’n, ECF No. 47; and Defendant filed its reply, see Def.

District of Columbia’s Reply in Further Supp. of Its Mot. for

Summ. J., ECF No. 48. The District’s motion is now ripe and

ready for adjudication.

II. Standard of Review

Federal Rule of Civil Procedure 56 requires the Court to

grant a motion for summary judgment when “there is no genuine

dispute as to any material fact and the movant is entitled to

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

“material” fact is one that could “affect the outcome of the

suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

(1986). And a dispute is “genuine” if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.”

The moving party bears the burden

of “informing the district court of the basis for its motion” as

well as “identifying 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); see also Fed. R. Civ. P. 56(c)(1)(A).

To defeat summary judgment, the nonmoving party must “go

beyond the pleadings” and “designate specific facts showing that

6 there is a genuine issue [of material fact] for trial.” Celotex

Corp.,

(internal quotation marks omitted). In

evaluating a summary judgment motion, “[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are

to be drawn in his favor.” Anderson,

. However,

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. District of Columbia,

(D.D.C. 2011);

see also Celotex Corp.,

. If the evidence

favoring the nonmoving party is “merely colorable, or is not

significantly probative, summary judgment may be granted.”

Anderson,

(internal citations omitted).

III. Analysis

This Court, in its previous opinion on Defendant’s Motion

to Dismiss, specified that “Mr. Buitrago’s remaining claims are

(1) discrimination on the basis of national origin . . . ; (2)

discrimination on the basis of disability under the ADA; and

[(3)] retaliation under Title VII and the ADA as to his claims

that [(i)] DOH would no longer pay for his physical therapy

sessions; [(ii)] he was reassigned to a different division at

DOH; [(iii)] he was returned to his former position, but was not

allowed to resume his former duties; and [(iv)] he was forced to

reapply and compete for his job.” MTD Op., ECF No. 35 at 35. 7 Defendant argues that its Motion for Summary Judgment should be

granted because the “undisputed facts demonstrate that Plaintiff

cannot prove actionable claims under these statutes.” Def.’s

Mot., ECF No. 45 at 1.

A. Discrimination on the Basis of National Origin

Title VII prohibits an employer from “discriminat[ing]

against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of [his] race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2

(a)(1). “[T]he two essential elements of a discrimination claim

are that (i) the plaintiff suffered an adverse employment action

(ii) because of the plaintiff’s race, color, religion, sex, [or]

national origin . . . .” Baloch v. Kempthorne,

(D.C. Cir. 2008). “A plaintiff must prove both elements to

sustain a discrimination claim.”

When employees have no direct evidence of discrimination—

and instead rely on circumstantial evidence to establish an

inference of discrimination—Courts employ the three-step

McDonnell Douglas burden-shifting framework. See Figueroa v.

Pompeo,

(D.C. Cir. 2019). Under this “method

of proof,” (1) “the employee must establish a prima facie case”;

(2) if they succeed, “the burden then shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its

actions”; and (3) “[i]f the employer meets its burden of

8 production, the burden then shifts back to the employee, who

must prove that, despite the proffered reason, [they have] been

the victim of intentional discrimination.”

(internal

quotation marks omitted). However, when considering a motion for

summary judgment, instead of focusing on a plaintiff’s prima

facie case, the Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has clarified that “[i]n a Title VII

disparate-treatment suit where an employee has suffered an

adverse employment action and an employer has asserted a

legitimate, non-discriminatory reason for the decision,” “the

district court must resolve one central question: Has the

employee produced sufficient evidence for a reasonable jury to

find that the employer’s asserted non-discriminatory 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?” Brady v. Off. of the

Sergeant at Arms,

(D.C. Cir. 2008); see also

Figueroa,

(describing the Brady question as “a

shortcut for the District Court to tackle the critical question

of discrimination” (internal quotation marks omitted)).

Mr. Buitrago’s claim for national origin discrimination

rests on the adverse action of Defendant “denying his request

for a flexible work schedule,” see MTD Op., ECF No. 35 at 13;

which he claims raises an inference of discrimination because

9 two African-American co-workers, “who also had a reasonable

accommodation,” were “provide[d] a flexible work schedule,” see

id. at 4; Pl.’s Opp’n, ECF No. 47 at 4. Defendant challenges

this claim on two grounds. First, the District claims that Mr.

Buitrago has provided “no admissible evidence that Plaintiff was

denied an eight hour flexible work schedule based on his

national origin.” Def.’s Mot., ECF No. 45 at 11. And second, the

District argues that Mr. Buitrago “cannot demonstrate” that the

District’s proffered legitimate, non-discriminatory reason for

the decision—“adherence to the District Personnel Manual”—“is

pretext.” Id. at 13. Mr. Buitrago in opposition argues that his

claim should survive summary judgment because “Defendant has not

produced sufficient evidence for a reasonable jury to find that

their asserted reason was the actual reason, and that

subsequently, a dispute of material fact as to a pretextual

reason has been established,” Pl.’s Opp’n, ECF No. 47 at 3; and

that “a reasonable jury could find that the evidence submitted

demonstrating the disparate treatment between Plaintiff and his

two referenced colleagues are probative of pretext,” citing the

Third Amended Complaint, id. at 4.

Looking at the evidence on the overall question of

discrimination, the Court concludes that Mr. Buitrago has not

“produced sufficient evidence for a reasonable jury to find that

the employer’s asserted non-discriminatory reason was not the

10 actual reason and that the employer intentionally discriminated

against [him].” Brady,

. Beginning with pretext,

Defendant argues that Mr. Buitrago “was not denied an eight-hour

flexible work schedule because he is of Panamanian descent” but

rather, “because the District Personnel Manual requires an

eight-hour work day with a 30 minute break.” Def.’s Mot., ECF

No. 45 at 13. For evidentiary support, Defendant cites its

Statement of Material Facts, which in turn cites the District’s

Personnel Manual. See id.; SOMF, ECF No. 45-1 ¶¶ 9-10; Def.’s

Ex. 5, ECF No. 45-7 at 2-3 (explaining that a “basic forty-hour

(40-hour) workweek shall be scheduled”); Def.’s Ex. 6, ECF No.

45-8 at 2 (explaining that a 30-minute lunch period “shall be in

addition to his or her regularly scheduled duty hours”).

Mr. Buitrago does not dispute the validity or relevance of

this evidence or offer any of his own to combat Defendant’s

assertions. Rather, he argues that “the evidence submitted

demonstrating the disparate treatment between [him] and his two

referenced colleagues are probative of pretext.” Pl.’s Opp’n,

ECF No. 47 at 4. However, in explaining what “evidence”

establishes disparate treatment, Mr. Buitrago cites only his

Third Amended Complaint. At the summary judgment stage, an

unverified complaint is insufficient evidence to survive a

motion for summary judgment. See Grimes v. District of Columbia,

(D.C. Cir. 2015) (“it is well established that

11 [a plaintiff] cannot rely on the allegations of her own

complaint in response to a summary judgment motion, but must

substantiate them with evidence”);

at 94 n.5 (observing that

a verified complaint “has the same evidentiary value as a

plaintiff’s affidavit or sworn declaration”); Fed. R. Civ. P.

56(c)(1)(A) (allowing parties in summary judgment proceedings to

cite to evidence such as “depositions, documents, electronically

stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials”). Thus,

Mr. Buitrago has not pointed to any evidence in the record

showing a genuine dispute of material fact sufficient to

overcome Defendant’s arguments.

Furthermore, although there exists evidence in the record

substantiating Mr. Buitrago’s factual claim from the Third

Amended Complaint, that evidence is also insufficient to

overcome the present motion because it is not admissible. See

Fed. R. Civ. P. 56(c)(2). Defendant points out that Mr.

Buitrago, in his deposition, stated that two African-American

coworkers received eight-hour work schedules. See Def.’s Mot.,

ECF No. 45 at 11; Def.’s Ex. 2, ECF No. 45-4 at 9-10. But he

stated that he knew these facts because his co-workers told him.

Def.’s Ex. 2, ECF No. 45-4 at 10. He claimed that the

information was “discussed in a minute meeting” and he could

12 “ask for the meeting . . . records.”

But Mr. Buitrago

neither cites to nor has attached to his briefing any evidence

from that meeting. Thus, the record only contains Mr. Buitrago’s

own statement about what his co-workers told him about their

work schedules. As Defendant notes, this statement is hearsay

because Mr. Buitrago is relaying an out-of-court statement to

establish the truth of the matter asserted—that his co-workers

actually received eight-hour work schedules. See Fed. R. Evid.

801(c). Mr. Buitrago does not address Defendant’s hearsay

argument and thus fails to establish that the statement would

either be not hearsay or would fall under a hearsay exception.

See Fed. R. Evid. 801(d). Therefore, because Mr. Buitrago’s

statement about his co-workers’ schedules would be inadmissible

in court, the statement is also insufficient to defeat summary

judgment. See Gleklen v. Democratic Cong. Campaign Comm., Inc.,

(D.C. Cir. 2000) (affirming grant of summary

judgment to a defendant because a plaintiff’s “hearsay . . .

counts for nothing” on a motion for summary judgment).

Since Mr. Buitrago’s sole support for the inference of

national origin discrimination comes from inadmissible evidence,

the Court cannot conclude that Mr. Buitrago has met his burden

of “produc[ing] 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

13 discriminated against [him].” Brady,

. Therefore,

the Court GRANTS Defendant’s Motion for Summary Judgment on Mr.

Buitrago’s discrimination claim based on national origin.

B. Discrimination Based on Disability.

The ADA prohibits employers from discriminating “against a

qualified individual on the basis of disability,”

(a); and requires employers to make “reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability,”

§ 12112(b)(5)(A). To establish a valid failure-to-accommodate

claim, “a plaintiff must establish by a preponderance of the

evidence that ‘(1) she was a qualified individual with a

disability, (2) the [employer] had notice of her disability and

(3) the [employer] denied her request for a reasonable

accommodation.’” Waggel v. George Washington Univ.,

(D.C. Cir. 2020) (quoting Ward v. McDonald,

(D.C. Cir. 2014)). An “‘employer need only provide some

reasonable accommodation,’ not the accommodation that the

employee requests or prefers.” Carter v. Nelson, No. 20-5111,

, at *1 (D.C. Cir. Dec. 27, 2021) (quoting Aka v.

Washington Hosp. Ctr.,

(D.C. Cir. 1998) (en

banc)).

In the Third Amended Complaint, Mr. Buitrago alleged that

the District violated the ADA “when Defendant denied Plaintiff’s

14 request for a reasonable accommodation in the form of an

ergonomic workstation.” Third Am. Compl., ECF No. 29 ¶ 93. On

this Motion for Summary Judgment, the District argues that Mr.

Buitrago’s failure-to-accommodate claim fails because the

“[u]ndisputed facts demonstrate that Plaintiff was provided with

a reasonable accommodation, specifically an ergonomic

workstation that did not present any ergonomic barriers to

Plaintiff performing his work.” Def.’s Mot., ECF No. 45 at 14.

The District also acknowledges that while Mr. Buitrago

previously objected “to the amount of workspace provided” by the

workstation, “the ADA does not require employers to provide the

accommodation that the employee requests or prefers; it simply

requires them to provide some reasonable accommodation.”

Mr. Buitrago does not mention his failure-to-accommodate

claim in his briefing on this motion. He does not discuss or

cite to any evidence related to his request for an ergonomic

workstation. In his “Statement of Genuine Issues,” in which he

states four matters which he seems to claim are material and in

dispute, Mr. Buitrago only mentions his flexible work schedule

and administrative leave for physical therapy, see Pl.’s Opp’n,

ECF No. 47 at 1; but never argues in the briefing that either

issue is the basis for a failure-to-accommodate claim.

Therefore, Mr. Buitrago has abandoned his failure-to-accommodate

claim by not addressing it in his briefing. See Al-Gharawy v.

15 U.S. Dep’t of Homeland Sec.,

, 19 (D.D.C. 2022)

(concluding that “Plaintiffs appear to abandon [a] claim”

because they did “not mention” it “[i]n their opposition”); cf.

Posters ‘N’ Things, Ltd. v. U.S.,

(1994)

(concluding that a party “abandons” an issue where “petitioners’

brief on the merits fails to address the issue”). Furthermore,

because Mr. Buitrago does not dispute the validity or relevance

of the District’s evidence that it accommodated his request for

an ergonomic workstation, Mr. Buitrago has also conceded the

argument that a reasonable accommodation was made for his

request. See Am. Waterways Operators v. Regan,

, 138 (D.D.C. 2022) (“‘If a party fails to counter an

argument that the opposing party makes in a motion, the court

may treat that argument as conceded.’” (quoting Day v. D.C.

Dep’t of Consumer & Regul. Affs.,

(D.D.C. 2002))). Accordingly, the Court GRANTS Defendant’s

Motion for Summary Judgment on Mr. Buitrago’s failure-to-

accommodate claim.

C. Retaliation

Title VII and the ADA prohibit retaliating against

employees who file complaints of discrimination. See 42 U.S.C.

§ 2000e-3(a);

(a). Under both statutes, an

employee must establish that they: (1) “engaged in protected

activity,” (2) were “subjected to adverse action by the

16 employer,” and (3) that “there existed a causal link between the

adverse action and the protected activity.” Smith v. District of

Columbia,

(D.C. Cir. 2005) (internal quotation

marks omitted). Like discrimination claims under Title VII, when

an employee does not have direct evidence of causation—and

instead intends to rely on circumstantial evidence to establish

an inference that the adverse employment action was due to the

employee’s protected activity—Courts employ the three-step

McDonnell Douglas burden shifting framework. See

(adopting

the Title VII framework for “ADA retaliation suits”).

This Court specified, at the end of its opinion regarding

Defendant’s Motion to Dismiss, that Mr. Buitrago’s only

remaining claims for retaliation are based on: (1) that DOH

would no longer pay for Mr. Buitrago’s physical therapy

sessions; (2) that Mr. Buitrago was reassigned to a different

division at DOH; (3) that Mr. Buitrago was returned to his

former position, but was not allowed to resume his former

duties; and (4) that Mr. Buitrago was forced to reapply and

compete for his job. See MTD Op., ECF No. 35 at 35. The District

argues that all four claims fail because Mr. Buitrago “cannot

prove that any of these acts were taken as a result of his

protected EEO activity,” Def.’s Mot., ECF No. 45 at 16; and that

even if Mr. Buitrago “could prove a prima facie case of

retaliation, the District had legitimate, non-retaliatory

17 reasons for the . . . employment actions at issue,” id. at 19.

In his briefing on the current motion, Mr. Buitrago

significantly alters his claims. First, he argues that his

protected activity was “when he attempted to communicate with

his employer regarding his desired disability accommodations and

need for reasonable accommodation for medical treatment.” Pl.’s

Opp’n, ECF No. 47 at 5. Second, he identifies three adverse

actions in connection with this protected activity: (1) that he

was “subjected to negative evaluation comments and reprimands

from his supervisor”; (2) that he “was not given work

assignments by his supervisor, who was angered by [his] actions

in contacting the supervisor’s superiors in an effort to find

substantive work”; and (3) that “he was place[d] on

administrative leave in late 2016 and ultimately terminated in

May 2017 under the guise of a reduction in force.” Id. at 5-6.

Finally, the only causal connection Mr. Buitrago identifies is

the temporal connection to his termination which occurred “four

months after he was granted permission to file a formal EEOC

complaint relating to his attempted protected activity

communicating with HR about his concerns.” Id. at 6.

Turning first to the four retaliation claims which survived

Defendant’s prior Motion to Dismiss, the Court concludes that

Mr. Buitrago either abandoned the claims or failed to point to

any evidence in the record showing a genuine dispute of material

18 fact. On the first issue of payment for physical therapy

sessions, Mr. Buitrago seems to abandon his previous argument,

see MTD Op., ECF No. 35 at 26-28; that the District’s refusal to

pay was a retaliatory action. On this motion, Mr. Buitrago

claims that his request for the District to pay for the physical

therapy sessions was itself the protected activity, not the

retaliatory effect of protected activity. See Pl.’s Opp’n, ECF

No. 47 at 5. Mr. Buitrago does not address Defendant’s argument

that there is no causal connection between the District’s

failure to pay for Mr. Buitrago’s sessions and his protected

activity because “[t]here is no evidence that any District

employee . . . was aware of [his] EEOC complaints or that anyone

at this separate District agency would be motivated to retaliate

against [him].” Def.’s Mot., ECF No. 45 at 17. Mr. Buitrago also

does not address Defendant’s proffered non-discriminatory reason

for not paying for his appointments, namely that his “pre-

approved physical therapy was authorized and paid for,” but his

“treatment with unauthorized, other physicians, specifically

chiropractic care . . . was not covered.” Id. at 19. He also

does not dispute that this determination was “the third-party

worker’s compensation carrier’s determination, not a retaliatory

determination made by [the District].” Id. Thus, the Court

concludes that Mr. Buitrago has conceded Defendant’s arguments

by failing to address them in his briefing and abandoned his

19 claim for retaliation based on the District’s failure to pay for

his therapy appointments. See Al-Gharawy, 617 F. Supp. 3d at 19;

Am. Waterways Operators, 590 F. Supp. 3d at 138.

The Court reaches the same conclusion for Mr. Buitrago’s

retaliation claim based on his reassignment to a different

division of DOH. Mr. Buitrago does not once mention reassignment

in his briefing on this motion. Therefore, he also fails to

address Defendant’s argument that “nothing in the summary

judgment record suggests that [the person who reassigned Mr.

Buitrago] was aware of [his] EEOC complaints.” Def.’s Mot., ECF

No. 45 at 17. Again, Mr. Buitrago concedes this argument and has

abandoned his claim by not mentioning either in his briefing.

See Al-Gharawy, 617 F. Supp. 3d at 19; Am. Waterways Operators,

590 F. Supp. 3d at 138.

The Court also reaches the same conclusion for Mr.

Buitrago’s retaliation claim based on him being forced to

reapply and compete for his job. Mr. Buitrago does not mention

this action in his briefing on this motion. In his “Statement of

Genuine Issues,” he claims that he “was not a term employee as

he was converted in a 2010 personnel action,” citing an attached

exhibit. See Pl.’s Opp’n, ECF No. 47 at 1; Pl.’s Ex. A, ECF No.

47-1 at 1. However, Mr. Buitrago never mentions, much less

argues the significance of, this purported personnel action in

his briefing. He does not use it to claim that he should not

20 have been forced to reapply and compete for his job. And he does

not use it to refute Defendant’s claim that “the settlement

agreement clearly states that [Mr. Buitrago] was returned to a

term position.” Def.’s Mot., ECF No. 45 at 19. Furthermore,

since the personnel action was from 2010 and the settlement

agreement was from 2013, see SOMF, ECF No. 45-1 ¶ 31; Mr.

Buitrago’s evidence has no bearing on Defendant’s argument or

evidence. Therefore, the Court concludes that Mr. Buitrago has

conceded the argument and abandoned his retaliation claim based

on being forced to reapply and compete for his job.

Mr. Buitrago’s claim that he was not allowed to return to

his former duties seems to correspond with his argument on this

motion that he was not given work assignments by his supervisor.

However, Mr. Buitrago points to no evidence in the record

indicating a genuine dispute of material fact to survive summary

judgment. In his briefing, he cites to his own deposition, where

he claims that he was “not allowed” to return to “[a]ll of” his

duties. See Pl.’s Opp’n, ECF No. 47 at 5-6; Def.’s Ex. 2, ECF

No. 45-4 at 18. He states that this action was an “adverse

action,” sufficient to sustain a claim of retaliation because

Mr. Buitrago “was not given work assignments by his supervisor,

who was angered by [his] actions in contacting the supervisor’s

superiors in an effort to find substantive work.” Pl.’s Opp’n,

21 ECF No. 47 at 5.

Even if the Court were to assume arguendo that this action

qualifies as an adverse action for a retaliation claim, Mr.

Buitrago does not argue and points to no evidence connecting

this action to his protected activity. In the Court’s previous

opinion ruling on Defendant’s Motion to Dismiss, this Court

allowed Mr. Buitrago’s claim to proceed because he was not

required “to establish each element of his prima facie case at

the motion to dismiss stage,” MTD Op., ECF No. 35 at 26; and his

allegations of “temporal proximity” were “sufficient to

withstand the District’s Motion to Dismiss,” id. at 28. However,

on this Motion for Summary Judgment, Mr. Buitrago does not state

in his briefing nor point to any evidence in the record

establishing when the purported adverse action occurred. Thus,

the Court has no basis to infer a causal connection through

temporal proximity. Furthermore, Mr. Buitrago offers no other

evidence or argument explaining the causal connection for this

adverse action. In his briefing, he only argues that a causal

connection exists based on temporal proximity for the adverse

action of being terminated. See Pl.’s Opp’n, ECF No. 47 at 6 (“A

causal connection is demonstrated in this case because

Plaintiff’s employer began moving to terminate Plaintiff four

months after he was granted permission to file a formal EEOC

complaint relating to his attempted protected activity

22 communicating with HR about his concerns.”). Therefore, the

Court agrees with Defendant that there is “no evidence to

suggest that [Mr. Buitrago] was prevented from performing his

job duties as retaliation for his EEO activity.” Def.’s Mot.,

ECF No. 45 at 18.

Because Mr. Buitrago has either conceded, abandoned, or

failed to show a genuine dispute of material fact on his

remaining retaliation claims, the Court GRANTS Defendant’s

Motion for Summary Judgment on those claims.

The Court now turns to the two adverse actions Mr. Buitrago

identifies in his briefing on this motion but were not included

in this Court’s list of claims surviving Defendant’s prior

Motion to Dismiss. First, Mr. Buitrago claims that he “suffered

adverse actions following his protected activity when he was

subjected to negative evaluation comments and reprimands from

his supervisor, Ms. Quick.” Pl.’s Opp’n, ECF No. 47 at 5.

However, as Defendant points out, this is the first time Mr.

Buitrago has attempted to base a retaliation claim on these

actions. In the Third Amended Complaint, Mr. Buitrago stated

that he “received negative evaluations with comments about his

communication skills and was required to undergo training.”

Third Am. Compl., ECF No. 29 ¶ 43. But he claimed that “[t]hese

evaluations were discriminatory in nature because [Mr. Buitrago]

was the only Hispanic male under Quick’s supervision, and she

23 favored other African American females under her supervision.”

Id. ¶ 46. Furthermore, in his description of the claims of

retaliation, he makes no mention of the evaluation or comments.

See id. ¶¶ 97-99 (describing as retaliatory the acts of not

being allowed to return to his previous position, being

transferred to a new position, being forced to apply for his

position, being subjected to administrative leave, being

terminated, and Defendant withdrawing authorization for medical

treatment for his disability). Finally, Mr. Buitrago never

advanced this retaliation claim in response to Defendant’s prior

Motion to Dismiss. See generally MTD Op., ECF No. 35. It is

well-established that “a plaintiff is not permitted to raise new

claims at the summary judgment stage, where those claims were

not pleaded in the complaint.” Taylor v. Mills,

(D.D.C. 2012) (collecting cases). Therefore, the

Court may not consider Mr. Buitrago’s retaliation claim based on

the negative comments and evaluation.

The other claim Mr. Buitrago attempts to advance in his

briefing is a claim for retaliation based on his being “place[d]

on administrative leave in late 2016 and ultimately terminated

in May 2017 under the guise of a reduction in force.” Pl.’s

Opp’n, ECF No. 47 at 6. This exact claim was dismissed by this

Court for failing to exhaust administrative remedies. See MTD

Op., ECF No. 35 at 31 (“Mr. Buitrago may not proceed on his

24 retaliation claim based on his termination and being placed on

administrative leave until the effective date of his termination

. . . [because he] has not exhausted his administrative remedies

as to his allegation that he was terminated in retaliation for

engaging in protected activity.”). Mr. Buitrago fails to mention

this Court’s dismissal, much less argue that the decision was

erroneous. Therefore, the Court stands by its previous

conclusion and refuses to consider Mr. Buitrago’s retaliation

claim based on his termination and administrative leave.

IV. Mr. Buitrago’s Representation Issues

On August 23, 2023, the Court granted Mr. Buitrago’s

counsel’s Motion to Withdraw and stayed proceedings in the case.

The Court stated that “[i]f new counsel has not entered an

appearance by October 30, 2023, Mr. Buitrago shall submit a

status report by that date informing the Court of the status of

his efforts to obtain new counsel or whether he will proceed pro

se.” Minute Order (Aug. 28, 2023). Thereafter, the Court granted

Mr. Buitrago an extension of time to respond to the court by

November 30, 2023. See Minute Order (Nov. 21, 2023). Mr.

Buitrago failed to respond to the Court’s order. See generally

Docket for Case 18-cv-261. On January 3, 2024, the Court sua

sponte ordered Mr. Buitrago to submit a status report informing

the Court by no later than January 31, 2024 of the status of his

efforts to secure representation. See Minute Order (Jan. 4,

25 2024). On February 7, 2024, the Court denied leave to file a

Notice of Appearance by putative counsel for Mr. Buitrago

because said counsel is not a member of the Bar of the District

Court for the District of Columbia and failed to comply with the

local rules regarding appearance pro hac vice. See Minute Order

(Feb. 7. 2024). On March 21, 2024, the Court again sua sponte

issued a Minute Order directing Mr. Buitrago to inform the Court

by no later than April 20, 2024 of his attempts to secure

representation. See Minute Order (Mar. 21, 2024). Mr. Buitrago

failed to comply with this Minute Order. Although Mr. Buitrago

has failed to comply with the Court’s orders, in an abundance of

caution, the Court will lift the stay in this case and delay

entry of the Order effectuating this Memorandum Opinion and the

Final Judgment in this case for 30 days.

V. Conclusion

For the reasons set forth above, the Court GRANTS

Defendant’s Motion for Summary Judgment, ECF No. 45. A separate

Order will accompany this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 3, 2024

26