Said v. Nat'l R.R. Passenger Corp.
Said v. Nat'l R.R. Passenger Corp.
Opinion of the Court
The plaintiff, Cheryl Renee Said, instituted this civil action against the defendant, the National Railroad Passenger Corporation ("Amtrak"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2 to - 7 (2012) ("Title VII"), § 1981 of the Civil Rights Act of 1866, as amended,
I. BACKGROUND
As an initial matter, the defendant argues that the Plaintiff's Statement of Disputed Facts fails to comply with the Federal Rules of Civil Procedure and the local rules of this Court, and therefore, "the Court should ... not accept any argument [raised] therein as creating a factual dispute that may defeat [its] motion, deem each of [its] factual statements as admitted, and grant summary judgment in [its] favor on the record evidence it presents in support of its motion." Def.'s Reply at 3. The defendant further argues that "the Court should disregard all of the unsupported 'facts' and unauthenticated exhibits [the p]laintiff relies upon in opposing [its] motion," emphasizing that the plaintiff has "not set[ ] forth any of her 'facts' in her [s]eparate [s]tatement[, and] has complied with none of the[ ] requirements [in the federal and local rules] for the purported 'facts' in her brief."
The Court agrees with the defendant that the plaintiff's submissions to the Court fail to comply with both the federal and local rules in a number of respects. The Plaintiff's Statement of Disputed Facts fails to comply with Local Rule 7(h), which requires "[a]n opposition ... [to include] a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, ... [and] references to the parts of the record relied on to support the statement," LcvR 7(h)(1), and also Federal Rule of Civil Procedure 56(c)(1), which similarly requires that "[a] party asserting that a fact ... is genuinely disputed must support the assertion by [ ] citing to particular parts of materials in the record," Fed. R. Civ. P. 56(c)(1). Although the Plaintiff's Statement of Disputed Facts purports to identify seven broad "issues" in dispute, it fails to set forth any statements of fact or provide any corresponding citations to the record. See, e.g., Pl.'s Disputed Facts ¶ 4 (asserting merely that "[t]here is a genuine material issue of fact in dispute as to whether [the d]efendant's claimed reason for terminating *312[the p]laintiff[ ] was a pretext and a cover up"). Furthermore, the Plaintiff's Statement of Disputed Facts fails to specifically respond to the individual statements of fact asserted in the Defendant's Statement of Undisputed Facts. See
Although the Court is troubled by the plaintiff's counsel's non-compliance, which "makes the work of the Court more onerous," Lawrence v. Lew,
Based on the Court's independent review of the record evidence, including the plaintiff's deposition testimony, the Court concludes that the following relevant facts are undisputed, with the exception of facts attributed solely to the plaintiff's deposition testimony or otherwise noted as an *313allegation by the plaintiff. The "[p]laintiff, an African American female," was employed by Amtrak as a Lead Service Attendant [ ] based out of Washington, D.C. Def.'s Facts ¶ 1 (footnote omitted); see also Def.'s Mot., Att. (Declaration of Joshua B. Waxman in Support of Defendant's Motion for Summary Judgment (Apr. 28, 2017) ("Waxman Decl.") ), Exhibit ("Ex.") A (Deposition Transcript of Cheryl Renee Said (Feb. 13, 2017) ) ("Said Dep.") 23:22-25. During the plaintiff's employment with Amtrak, she was a "member[ ] of a bargaining unit whose terms and conditions of employment [we]re governed by a collective bargaining agreement ('CBA') between Amtrak and [the] Amtrak Service Workers Council (... the 'Union')." Def.'s Facts ¶ 5; see also Said Dep. 30:14-25. The plaintiff's direct supervisor was On-Board Services Manager Phyllis McClinton, see Def.'s Facts ¶ 2; see also Said Dep. 26:16-18, an African American female, see Def.'s Facts ¶ 4, and Philip Ryan, a Caucasian male, was the Washington, D.C. Crew Base Manager, Def.'s Facts ¶¶ 44, 46; see also Said Dep. 79:25-80:2. "Per the [U]nion contract, [Ryan] was [also] the [plaintiff's] supervisor," Def.'s Mot., Att. (Waxman Decl.), Ex. C (DCOHR Interview with Phil Ryan, Crew Base Manager ("Ryan Interview") (Oct. 29, 2013) ) at DCOHR000038; however, he "was not [the p]laintiff's day-to-day supervisor," Def.'s Facts ¶ 46.
The plaintiff testified during her deposition that in 2010, "around two months before" February 2, 2011, see Said Dep. 89:9-10, she was "confronted" by Ryan, id. 87:17-21, who, according to the plaintiff, called her to his office because he "had assumed that [she] was not at [her] post, and he wanted to ... discipline [her]," id. 87:14-17. She testified that McClinton and a fellow Lead Service Agent, Lee Lockhart, a Caucasian male, were also present during the encounter, id. 87:17-21, 89:11-22, 92:25-93:1, and that Lockhart "spoke up for [her] to let [Ryan] know that [she] was where [she] was suppose[d] to be," id. 93:4-5. She further testified that "as [she was] leaving" Ryan's office, Ryan "mentioned to [her,] ... I thought it was you, because you all look alike." Id. 87:22-24. The plaintiff asserted that Lockhart was present when Ryan made this statement, id. 89:20-22, but "McClinton was not [with]in the distance where she could hear [Ryan's statement]" because she had left the office before the statement was made, id. 90:3-10.
On February 1, 2011, the plaintiff's husband died as a result of suffering an aneurysm, see id. 47:12-48:18, and "[o]n or about February 2, 2011, [the p]laintiff began a leave of absence due to her husband's death," Def.'s Facts ¶ 13; see also Said Dep. 51:8-13. "[A]bout a week later, [the plaintiff] spoke with [ ] McClinton by phone," Def.'s Facts ¶ 14, who, according to the plaintiff, informed the plaintiff "that [she] was putting [the plaintiff] on bereavement leave," Said Dep. 82:13-14. Then, on February 15, 2011, "McClinton [ ] submitted a request for [the p]laintiff to take a personal leave of absence." Def.'s Facts ¶ 14; see also Said Dep., Ex. 7 (Request for Leave of Absence/Return from Leave of Absence (Feb. 15, 2011) (the "February 15, 2011 Request") ). The request indicated that the leave of absence would have an "Effective Date" of February 20, 2011, and an "Estimated Return from [the Leave of Absence] Date" of March 1, 2011. Said Dep., Ex. 7 (February 15, 2011 Request).
*314The plaintiff testified that around two weeks after receiving McClinton's first phone call, McClinton contacted her again and informed her that she "was putting [the plaintiff] on [ ] personal leave." Id. 82:18-25. During that conversation, McClinton "[a]sked [the plaintiff] how [she] was feeling, and [the plaintiff] told [McClinton] that [she] was not feeling very well," to which McClinton responded "take all the time [you] need[ ]." Id. 83:5-9. The plaintiff further testified that she told McClinton that she "needed health insurance," and McClinton said "she would look into it." Id. 83:13-15. McClinton subsequently "called [the plaintiff] back about a week later," and told the plaintiff "that Amtrak was not able to insure [her] because [she] was on leave without pay," but again told her that she should "take all the time that [she] needed to get well to return to work." Id. 83:15-19.
On March 31, 2011, "[a]fter speaking with [the p]laintiff again by phone, [ ] McClinton submitted a request for an extension of [the p]laintiff's personal leave until April 30, 2011." Def.'s Facts. ¶ 17; see also Said Dep., Ex. 8 (Request for Leave of Absence/Return from Leave of Absence (Mar. 31, 2011) (the "March 31, 2011 Request") ). The request indicated that the leave of absence would have an "Effective Date" of March 26, 2011, and an "Estimated Return from [the Leave of Absence] Date" of April 30, 2011. Said Dep., Ex. 8 (March 31, 2011 Request).
*315On February 24, 2011, the plaintiff moved her residence from Washington, D.C. to Maryland. See id. 76:13-19, 84:11. The plaintiff testified that around the date of her move, she verbally notified an employee named Cassandra at Amtrak's "crew base" of her new address, see id. 107:21-108:24, 113:2, as well as another person at "the crew management base," id. 84:12-15, 113:2. She also testified that she "talked to someone" at Amtrak's Human Resources office in Wilmington, Delaware, id. 110:7-9, and "faxed [her] ... new address" to that office, id. 112:5-6. The plaintiff also testified that around the same time, she "gave [McClinton her new] address," id. 83:20-23, and "about one to two weeks later," she "received a [condolence] card" from McClinton at her new address, id. 84:1-2; see also Def.'s Facts ¶ 16. Furthermore, on April 29, 2011, the "[p]laintiff contacted the [Amtrak] Employee Service Center [ ] to change her address," Def.'s Facts ¶ 21; see also Said Dep., Ex. 12 (Record of April 29, 2011 conversation with Jacqueline King), and she "spoke with Human Capital Representative Jacqueline King," Def.'s Facts ¶ 23. Following that conversation, "King emailed [the p]laintiff a change-of-address form to complete," id. ¶ 24; however, the plaintiff testified that she did not remember if she filled out the change-of-address form and returned it, Said Dep. 115:12-15, and "Amtrak has no record of [the p]laintiff returning the change-of-address form that [ ] King sent her in April 2011," Def.'s Facts ¶ 27.
"In [or] about April 2011, Amtrak received correspondence from [the p]laintiff's husband's life insurance carrier (Security Mutual Life) requesting that Amtrak verify certain information." Id. ¶ 28. In "the first part of May [2011]," Said Dep. 85:10-15, Ryan "called [the p]laintiff on her phone (the number of which did not change when she moved) to ask if he could release information to the insurer," Def.'s Facts ¶ 29. "[The p]laintiff agreed, and [ ] Ryan [ ] responded to the insurer with the requested information." Id. ¶ 28; see also Def.'s Mot., Att. (Waxman Decl.), Ex. E (Deposition of Philip Roger Ryan (Feb. 23, 2017) ) ("Ryan Dep."), Ex. A (Letter from Philip Ryan, Manager, Washington Crew Base, to Security Mutual Life Insurance Company of New York (Apr. 15, 2011) ("Security Mutual letter") ) at 3.
"In or about July 2011, [the p]laintiff encountered [Assistant Superintendant Kathy] Brewer," McClinton's supervisor and an African American female, "at a grocery store." Def.'s Facts ¶¶ 4, 30. According to the plaintiff's testimony, she told Brewer that she "wasn't doing well at all," and Brewer told her to "take all the time you need to get well." Said Dep. 102:1217. The plaintiff also testified that Brewer told her that she "was able to receive disability benefits from the Railroad Retirement Board" (the "Board"), id. 102:19-22, which "administers benefits for all railroad[ ] [employees] in the United States, including Amtrak [employees]," Def.'s Facts ¶ 31. Thereafter, also "in or about July 2011," the plaintiff applied for sickness benefits from the Board, Def.'s Facts ¶ 34; see also Said Dep. 102:19-23, and "provided the [Board] with her [new] address[ ] and communicated with the [Board] via the address she provided," Def.'s Facts ¶ 34. The plaintiff further testified that she "started receiving [benefits] in August of 2011," Said Dep. 102:22-23, and while receiving these benefits, the Board periodically sent her forms, which she "sen[t] to [her] doctor to fill out about [her] condition [and] progress," id. 105:17-19, and then she returned the forms to the Board once they were completed, see id. 106:5-7.
In July 2011, McClinton also took a medical leave of absence, see Def.'s Mot., Att. (Waxman Decl.), Ex. B (DCOHR Interview *316with Phyllis McClinton, Supervisor (Nov. 14, 2013) ) at DCOHR000045; see also Def.'s Facts ¶ 3, during which time "On-Board Service Manager Patricia Baylor," an African American female, "assumed some of [ ] McClinton's supervisory responsibilities," Def.'s Facts ¶¶ 3-4. "At some point [thereafter] ..., it was brought to [ ] Baylor's attention that ... [the p]laintiff[ ] had been absent for an extended period of time." Id. ¶ 42. Baylor "tried by phone" to reach the plaintiff, but "wasn't able to reach her." Def.'s Mot., Att. (Waxman Decl.), Ex. D (DCOHR Interview with Patricia Baylor, On-Board Services Manager (Oct. 29, 2014) ("Baylor Interview") ) at DCOHR000041-42; see also Def.'s Facts ¶ 43 (stating that Baylor "tr[ied] to reach [the p]laintiff"). In addition, "Baylor contacted Amtrak's Medical Department to determine whether [the p]laintiff was on an approved medical leave, and she was told that Amtrak had no record of [the p]laintiff being on [medical] leave." Def.'s Facts ¶ 43.
On September 30, 2011, Baylor forwarded an e-mail to Ryan, which she also sent to Brewer, informing him that "[t]he department [had not] heard from [the plaintiff] concerning [her] absence from work for the past several months[, and that t]his is clearly a violation of the Attendance policy and [stated that] a Rule 24 letter [wa]s necessary at th[at] time." Ryan Dep., Ex. A (E-mail from Patricia Baylor to Philip Ryan (Sept. 30, 2011) (the "Sept. 30, 2011 E-mail") ) at 1. "Per [ ] Baylor's instruction ..., [ ] Ryan prepared a letter to [the p]laintiff ..., using the address on file in Amtrak's [ ] database," Def.'s Facts ¶ 47, which the plaintiff asserts was her former Washington, D.C. address, see Said Dep. 62:23-25 ("[A] letter had been sent to my old address, want[ing] to know my whereabouts, and where I had been[.]"), and "[p]rior to sending the letter, ... [he] contacted Amtrak's Human Resources Department to confirm [the p]laintiff's address," Def.'s Facts ¶ 47. Thereafter, "Ryan sent the [ ] letter to [the p]laintiff via Federal Express ..., copying [ ] Baylor and [ ] Brewer, as well as Dwayne Bateman, [the p]laintiff's Union representative." Id. ¶ 48. In the letter, dated October 12, 2011, Ryan "advised [the plaintiff] that the Medical Department ha[d] not received an update for [her] absence from work," and that "[i]n order to continue [her] absence, [she was] instructed to contact the Medical Department immediately and provide whatever documentation necessary to update [her] records." Said Dep., Ex. 18 (Letter from Philip Ryan, Manager, Washington Crew Base, to Cheryl Said (October 12, 2011) (the "Rule 24 notification letter") ). It further warned that
failure to comply with these instructions will invoke Rule 24 of the [Union] contract, which reads in part ... ["]Employees who are absent from work for [ten] days without notifying the company[ ] shall be considered resigned from the corporation, unless the corporation is furnished satisfactory evidence that the failure is due to circumstances beyond their control."
Id., Ex. 18 (Rule 24 notification letter) (omission in original). The Rule 24 notification "letter was returned to Amtrak as undeliverable." Def.'s Facts ¶ 50. As a result of the letter being returned, Ryan "contacted [ ] Bateman to determine whether the [Union] had a different address for [the p]laintiff," but "Bateman advised [him] that the [Union] had the same address on file that Amtrak had." Id. However, "Ryan did not attempt to contact [the p]laintiff by [ ]phone," consistent with "Amtrak's policy to send Rule 24 communications exclusively in writing, so as to have a clear record of the same." Id. ¶ 51.
On November 4, 2011, "[b]ecause [the p]laintiff did not respond to the [ ] Rule 24 *317[notification] letter," id. ¶ 52, Ryan sent a second letter to the plaintiff, which served as "official notification that [the plaintiff was] [ ] considered resigned," Said Dep., Ex. 19 (Letter from Philip Ryan, Manager, Washington Crew Base, to Cheryl Said (Nov. 4, 2011) (the "Rule 24 termination letter") ). Specifically, the letter stated:
There has been no response or notification of your prolonged absence from work at Amtrak. In a letter sent to you on October 12, 2011, ... you were instructed to notify the corporation [of] your absence. In the letter, you were informed that failure to do so w[ould] invoke Rule 24 of the [Union] contract, and you w[ould] be considered as resigned from the corporation.
Id., Ex. 19 (Rule 24 termination letter). "On November 7, 2011, [the p]laintiff's termination was recorded by Amtrak as an 'involuntary separation,' effective November 4, 2011, without eligibility for rehire[,]" Def.'s Facts ¶ 53, with the reason recorded as "No Return from [Leave of Absence]," Ryan Dep., Ex. D (Involuntary Separation form). The plaintiff testified that she "never received" either of the Rule 24 letters from the defendant. Said Dep. 124:3-4.
"On or about February 7, 2012, [the p]laintiff appeared at the Washington[,] D.C. crew base," Def.'s Facts ¶ 55 (footnote omitted), "to let the[ ] [defendant] know that [her] doctor had released [her] to return back to work on February 19," Said Dep. 62:4-6. However, "Ryan advised [the plaintiff] that her employment had been terminated," Def.'s Facts ¶ 55, and he further "advised [her] to discuss the situation with her Union and provided her with [ ] Bateman's [ ]phone number," id. ¶ 56; see also Said Dep. 62:10-14. The "[p]laintiff contacted ... Bateman," Def.'s Facts ¶ 61; see also Said Dep. 62:16-18, and informed him that she "had just found out that [she] had been terminated," Said Dep. 62:20-21. Thereafter, the Union "advised her that [it] would not file a grievance on her behalf," Def.'s Facts ¶ 61, and the "[p]laintiff did not pursue her grievance to the National Railroad Adjustment Board or public law board," id. ¶ 63; see also Said Dep. 66:14-21 (acknowledging that she did not file a formal grievance).
On January 30, 2013, the plaintiff submitted an Intake Questionnaire to the District of Columbia Office of Human Rights ("DCOHR"), see Def.'s Facts ¶ 64; see also Def.'s Mot., Att. (Waxman Decl.), Ex. F (Employment Intake Questionnaire) at DCOHR000019, and, on May 30, 2013, she filed a Charge of Discrimination with the DCOHR, in which she alleged that the defendant had unlawfully terminated her employment based on her race, gender, and disability, see Def.'s Facts ¶ 65. On or about January 13, 2014, the DCOHR issued a determination letter, id. ¶ 67, which found "no probable cause to believe" the plaintiff's claims, Def.'s Mot., Att. (Waxman Decl.), Ex. G (Letter of Determination-No Cause Finding (Jan. 13, 2014) ) at DCOHR000079. Thereafter, on May 4, 2015, the plaintiff alleges that the Equal Employment Opportunity Commission ("EEOC") mailed her a "Dismissal and Notice of Rights" letter. Compl., Ex. A (Dismissal and Notice of Rights) at 1. The plaintiff filed this suit on August 11, 2015. See Compl. at 1.
II. STANDARD OF REVIEW
Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56(a)"if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When ruling on a Rule 56(a) motion, the Court must view the evidence in the light most favorable to the non-moving party.
*318Holcomb v. Powell,
In responding to a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
III. ANALYSIS
A. The Plaintiff's Title VII Claims
The defendant argues that the plaintiff's Title VII claims are time-barred "[b]ecause [the p]laintiff did not file her Charge [of Discrimination] (or even initiate the administrative process via the intake questionnaire) until well after [the three-hundred-]day[ ] [statutorily required administrative filing period] had elapsed." Def.'s Mem. at 4. The Court agrees.
The District of Columbia Circuit has made clear that "Title VII '[c]omplainants must timely exhaust the[ir] administrative remedies before bringing their claims to court.' " Payne v. Salazar,
Here, the parties agree that the plaintiff initially instituted the proceedings in this case by filing an Intake Questionnaire with the DCOHR, see Def.'s Facts ¶ 64; Pl.'s Opp'n at 7, and that the statutory period for filing an administrative charge with the EEOC commenced on the day when the plaintiff first learned about her termination, see Def.'s Mem. at 4; Pl.'s Opp'n at 8, which the plaintiff testified was February 7, 2012, see Said Dep. 61:2-3.
*319Therefore, the plaintiff was required to file her charge of discrimination with the EEOC within three hundred days thereafter, or by December 3, 2012. Curiously, neither party has provided the Court with a date when the plaintiff filed a charge of discrimination with the EEOC, and the plaintiff actually insists that she "did not file her Complaint with the EEOC," but rather that "[h]er Complaint was only sent to the EEOC for 'substantial review' of the DCOHR decision which [she] challenged." Pl.'s Opp'n at 7. However, the DCOHR's Letter of Determination submitted by the defendant suggests that a charge of discrimination was indeed filed with the EEOC, as the letter purports to relate to an "EEOC No." of "10C-2013-00242," see Def.'s Mot., Att. (Waxman Decl.), Ex. G (Letter of Determination-No Cause Finding) at 1, and the EEOC Dismissal and Notice of Rights letter attached to the plaintiff's Complaint refers to an "EEOC Charge No." that matches the "EEOC No." recorded by the DCOHR, see Compl., Ex. A (Dismissal and Notice of Rights) at 1. Nonetheless, it appears that any EEOC charge was not timely filed. The plaintiff's "EEOC Charge No.," which contains a reference to the year "2013," suggests that the charge was filed in that year, and therefore could not have been filed until January 1, 2013 at the earliest, approximately one month past the statutory deadline. Alternatively, the plaintiff's assertion that she "did not file her Complaint with the EEOC," Pl.'s Opp'n at 7, suggests that her EEOC charge was automatically generated pursuant to "the worksharing agreement between the ... [ ]DCOHR[ ] and the EEOC, ... [which] operates so that '[c]harges received by one agency under the agreement shall be deemed received by the other agency,' " Miller v. Gray,
Nonetheless, the plaintiff argues that her claims are timely because she "filed her discrimination [c]omplaint with the ... [ ]DCOHR[ ], [and] the limitation[s] period under D[.]C[.] [ ] law is one year." Pl.'s Opp'n at 7. However, as the defendant correctly notes, the Supreme Court has foreclosed the plaintiff's argument that any statute of limitations provided in the D.C. Code applies to a Title VII claim. See Def.'s Reply at 5 (citing EEOC v. Comm. Office Prods. Co.,
*320
B. The Plaintiff's Section 1981 Race Discrimination Claim
The defendant argues that the plaintiff's discrimination claim under
Section 1981 prohibits racial discrimination in the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."
Here, the defendant has asserted legitimate, nondiscriminatory reasons for the plaintiff's termination, alleging that the
[p]laintiff was terminated pursuant to Rule 24 of the [Union's] CBA after failing to communicate with Amtrak during her extended leave of absence, failing to advise Amtrak of the reason she continued to be on leave or her expected return date, and failing to respond to correspondence from Amtrak regarding the same.
Def.'s Mem. at 6.
1. Ryan's Alleged Discriminatory Statement
"[E]vidence, direct or circumstantial, that permits an inference of discrimination ... include[s] discriminatory statements by the employer, or other attitudes suggesting the decision maker harbors discriminatory animus."
*322Holcomb,
The plaintiff has not explicitly argued that Ryan's comment constitutes direct evidence of discrimination. See generally Pl.'s Opp'n. However, even if she had raised this argument, it would fail. "To qualify as direct evidence, a statement or remark must 'itself show[ ] ... bias in the employment decision.' " Conn v. Am. Nat'l Red Cross,
However, the Court concludes that Ryan's alleged comment does constitute indirect evidence of discrimination that must be considered by the Court in conjunction with the other evidence proffered by the plaintiff. To constitute indirect evidence, a statement need not "express[ ] [ ] bias on [its] face," but "[d]iscrimination [may] instead be inferred from the statement based on what was said and the surrounding circumstances." Conn,
The defendant raises a number of challenges to the plaintiff's testimony regarding Ryan's alleged comment, none of which is persuasive. First, the defendant argues that "aside from [the p]laintiff's self-serving testimony, there is no evidence that [Ryan] ever made such a comment." Def.'s Mem. at 10. However, this argument fails in light of this Circuit's agreement with the Third Circuit that "there is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion." George v. Leavitt,
The defendant next argues that even if Ryan made the comment, it is insufficient to establish discrimination because "the undisputed evidence demonstrates that [Ryan] was not a decision[ ]maker with respect to her termination," Def.'s Mem. at 10; see also Def.'s Reply at 11-12, given that "Baylor [ ] made the decision to terminate [the p]laintiff's employment," Def.'s Reply at 12, by "instructi[ng] ... Ryan [to] prepare[ ]" the Rule 24 notification letter that was sent to the plaintiff, Def.'s Facts ¶ 47. Additionally, the defendant argues that Ryan's comment lacks probative value because "it was remote in time from [the plaintiff's] termination, was completely unrelated to [her termination], and [the p]laintiff does not allege that any discriminatory conduct or comments took place in the interim." Def.'s Mem. at 10 (internal citations omitted).
It is well established that "an isolated race-based remark unrelated to the relevant employment decision [does not], without more, permit a jury to infer discrimination." Morris v. McCarthy,
[e]ven if such a statement carries less weight than one made at the time of the [adverse employment action], it is nonetheless probative evidence of a supervisor's discriminatory attitude, at least when it is targeted directly at the plaintiff or is one of a pattern of similar remarks. Instead of reviewing each racially charged remark individually and finding it insufficient, [courts must] consider it alongside any additional statements-and all other evidence-to determine whether a plaintiff has met her burden.
First, the Court concludes that the facts in the record could lead a reasonable jury to conclude that Ryan had "the power to influence [the p]laintiff's termination." Ajisefinni,
Second, the Court disagrees with the defendant that Ryan's alleged remark is too "remote in time from [the plaintiff's] termination" to be probative. Def.'s *325Mem. at 10. The plaintiff testified that Ryan's comment was made approximately two months before she began her leave of absence on February 2, 2011, see Said Dep. 89:9-10, and therefore, was allegedly made approximately eleven months before her termination on November 4, 2011, see Def.'s Facts ¶ 52. Although eleven months is a significant period of time, this Circuit has instructed that "[e]ven if [ ] a statement [made significantly before the relevant employment action] carries less weight than one made at the time of the [action], it is nonetheless probative evidence of a supervisor's discriminatory attitude, at least when it is targeted directly at the plaintiff." Morris,
In sum, the Court concludes that Ryan's alleged remark is evidence of Ryan's discriminatory intent that must be "consider[ed] alongside ... all other evidence[ ] to determine whether [the] plaintiff has met her burden." Morris,
2. Evidence Challenging the Defendant's Proffered Reasons for the Plaintiff's Termination
"Proof that the defendant's explanation is unworthy of credence is [another]
*326form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves,
As previously indicated, the defendant asserts that
[the p]laintiff was terminated pursuant to Rule 24 of the [Union's] CBA after failing to communicate with Amtrak during her extended leave of absence, failing to advise Amtrak of the reason she continued to be on leave or her expected return date, and failing to respond to correspondence from Amtrak regarding the same.
Def.'s Mem. at 6. Rule 24 of the CBA, which governs "Unauthorized Absence," states that "[e]mployees who are absent from work for ten [ ] days without notifying [Amtrak] shall be considered as having resigned from the service, unless [Amtrak] is furnished satisfactory evidence that circumstances beyond their control prevented such notification." Said Dep., Ex. 3 (CBA) at 30.
The plaintiff disputes each of the defendant's proffered reasons for her termination. See generally Pl.'s Opp'n. The defendant responds that the plaintiff has failed "to offer credible evidence that Amtrak's proffered reason for her termination was unworthy of credence ... because she can offer nothing but her own self-serving speculation that anyone at Amtrak-let alone everyone at Amtrak-is lying." Def.'s Reply at 10 (internal citations omitted). For the reasons explained below, the Court concludes that the plaintiff has identified sufficient evidence to cast doubt on some of the defendant's proffered reasons.
i. The Plaintiff's Alleged Failure to Communicate with the Defendant During Her "Extended Leave of Absence"
The plaintiff first disputes the defendant's assertion that she "fail[ed] to communicate *327with Amtrak during her extended leave of absence," Def.'s Mem. at 6, arguing that "she was in constant contact with" her managers and supervisors, Pl.'s Opp'n at 3. Although it is not entirely clear what time period the defendant considers to be the plaintiff's "extended leave of absence," the defendant appears to be referring to the period between April 2011 and February 2012, when the plaintiff attempted to return to work. See Def.'s Reply at 8 (asserting that the plaintiff "did not speak with anyone at Amtrak from April 2011 until January 2012," "except for bumping into [ ] Brewer in a grocery store"); see also id. at 1 (asserting that the plaintiff "did not contact Amtrak for [ten] months about her status"). The evidence before the Court, viewed in the light most favorable to the plaintiff, shows that during this time period, the plaintiff had at least three contacts with Amtrak employees. First, the plaintiff testified that she spoke with McClinton on the phone "sometime before early May 2011," when McClinton called her to "check[ ] to see how [she] was doing" and told her that "she[ ] [would] continue to put [her] on leave without pay." Said Dep. 85:16-20; see also Def.'s Facts ¶ 18 ("[The p]laintiff and [ ] McClinton spoke [ ] at some point in or around April 2011, at which time [ ] McClinton verbally extended [the p]laintiff's leave without a specific return date."). Second, the plaintiff testified that she spoke with Ryan on the phone sometime in May 2011, when he called her regarding a request for information he had received from her deceased husband's life insurance carrier. See id. 57:4-14; 85:10-15; see also Def.'s Facts ¶¶ 28-29 (acknowledging that Ryan "called [the p]laintiff on her phone" when he "received correspondence from [the p]laintiff's husband's insurance carrier," but asserting that the phone call occurred "[i]n [or] about April 2011"). And third, it is undisputed that the plaintiff spoke with Brewer in person at a grocery store in July 2011, when the two women unexpectedly encountered each other there. See Def.'s Facts ¶ 30; see also Pl.'s Opp'n at 18 (describing the encounter with Brewer as "a chance/unscheduled face-to-face meeting"). Although the Court is not convinced that a reasonable jury could find that the plaintiff's chance encounter with Brewer at the grocery store constitutes a "communicat[ion] with Amtrak," Def.'s Mem. at 6, the facts show that her other contacts with McClinton and Ryan occurred when those employees were acting as representatives of Amtrak, see Def.'s Facts ¶ 18 (agreeing that during McClinton's phone call with the plaintiff in or around April 2011, McClinton "verbally extended the plaintiff's leave"); id. ¶ 29 (representing that Ryan's phone call to the plaintiff concerned her husband's life insurance carrier's "request[ ] that Amtrak verify certain information" and "Amtrak's response" to that request (emphases added) ). Therefore, although the plaintiff does not assert that she had any other specific contacts with the defendant's employees during this extended leave of absence period, see Said Dep. 86:4-12 (testifying that after her May 2011 phone call with McClinton, she did not speak with McClinton again until February 2012), a jury could reasonably conclude from these two contacts that the plaintiff did not "fail[ ] to communicate with Amtrak during her extended leave of absence," Def.'s Mem. at 6.
ii. The Plaintiff's Alleged Failure to Advise the Defendant of the Reason She Continued to Be on Leave or Her Expected Return Date
As to the defendant's assertion that the plaintiff "fail[ed] to advise Amtrak of the reason she continued to be on leave," Def.'s Mem. at 6, which appears to refer to "the reason she needed to continue her leave beyond the initial bereavement *328period," Def.'s Reply at 8, the plaintiff argues that "Amtrak[ ] and its managers ... knew everything about the reason behind [her] absence from work[ ] [and] her ill health, including surrounding circumstances and happenings," Pl.'s Opp'n at 18. As support, she argues that "McClinton, ... Brewer, ... and ... [another employee] signed and put into her personnel file[ ] three [ ] separate Leave of Absence[ ] [ ] form[s] on [her] behalf," and that she discussed her health issues with her supervisors, presumably referring to Brewer and McClinton, who consequently "gave her oral permission over the phone ... to take all the time she needed to get well[ ] before returning to work." Id. at 15; see also, e.g., id. at 20 (asserting that she "informed [ ] McClinton that she had been dropped from her husband's health insurance, and that she ha[d] no money to pay for her doctors' visits or to buy needed medication, and asked [ ] McClinton whether Amtrak would cover her"); Said Dep. 55:4-6 (testifying that "McClinton and [ ] Brewer said [to her] take all the time that [you] need to get well").
Viewing the evidence in the light most favorable to the plaintiff, the Court concludes that the plaintiff has identified evidence creating a genuine factual dispute as to whether she "fail[ed] to advise Amtrak of the reason she continued to be on leave." Def.'s Mem. at 6. First, the defendant admits that during the plaintiff's phone conversation with McClinton "in or around April 2011, ... McClinton verbally extended [the plaintiff's] leave without a specific return date." Def.'s Facts ¶ 18. A reasonable jury could find this fact compelling, given that McClinton presumably would not have extended the plaintiff's leave of absence without a reason provided by the plaintiff. Cf. Aka,
In an apparent attempt to dispute that the plaintiff notified it of the reasons for her continued leave of absence, the defendant argues that "the fact that the CBA governing [the p]laintiff's employment prohibits any leave exceeding [ninety] days without joint agreement between Amtrak and the [U]nion (which indisputably did not occur here) undermines any argument by [the p]laintiff that she had permission for an unlimited leave," Def.'s Reply at 8-9, invoking Rule 22 of the CBA, see also Def.'s Facts ¶ 20 ("McClinton did not have authority to grant a leave of absence of more than [ninety] days." (citing, inter alia, Rule 22); see also Said Dep., Ex. 3 (CBA) at 28-29 ("Except for physical disability ..., leaves of absence in excess of ninety [ ] days in any calendar year shall not be granted unless by agreement between ... [Amtrak] and ... the [Union]."). However, the significance of this argument is unclear to the Court, given that the defendant has not asserted that it terminated the plaintiff because she did not have "permission" to be on leave or, more specifically, because she violated Rule 22 of the CBA. Rather, it has admitted that "in or around April 2011, McClinton verbally extended [the p]laintiff's leave without a specific return date," Def.'s Facts ¶ 18, notwithstanding her alleged lack of authorization. Furthermore, in this litigation, it has explicitly invoked Rule 24, not Rule 22, as the reason for the plaintiff's termination, see Def.'s Mem. at 6 ("[The p]laintiff was terminated pursuant to Rule 24 of the [ ] CBA[.]"), and the Court is unaware of any evidence in the record demonstrating that at any point prior to this litigation, the defendant invoked lack of authorization or violation of Rule 22 as a justification for the plaintiff's termination. Therefore, for these reasons the Court concludes that this argument has no bearing on its summary judgment analysis of whether the plaintiff has identified sufficient evidence to cast doubt on the defendant's proffered reasons for the plaintiff's termination. See Chudson v. Watt,
However, the Court cannot conclude that the plaintiff has successfully disputed that she "fail[ed] to advise Amtrak of ... her expected return date." Def.'s Mem. at 6. Although the plaintiff purports to dispute this assertion, see, e.g., Pl.'s Opp'n at 4, she has not produced any evidence to demonstrate that she notified the defendant of her expected return-to-work date or that the defendant was otherwise aware of it. As the defendant points out, see Def.'s Mem. at 17, although the plaintiff testified in her deposition that her doctor estimated that she would be able to return to work on February 19, 2012, see Said Dep. 144:22-24, she also testified that she did not notify the defendant of that return-to-work date until she reported to work on February 7, 2012, id. 143:19-144:10; see also Def.'s Facts ¶ 38 (asserting that the plaintiff did not "provide any information about an expected return to work date until approximately three months after her termination" (emphasis removed) ). And, although the plaintiff testified that her return-to-work date appeared on a doctor's slip she submitted to the Board in connection with her sickness benefits claim, see Said Dep. 137:11-25 (testifying that a document introduced during the plaintiff's deposition as Exhibit *33021 was a "doctor's slip" that reflected a return-to-work date of February 19, 2012); id. 140:8-12 (testifying that she provided Exhibit 21 to the Board), she testified that she never provided this document to the defendant, id. 140:19-21, and the plaintiff's broad claim that the Board must "give a railroad employer notice whenever an application for [benefits] is made," Pl.'s Opp'n at 33, even if true, is plainly insufficient to establish that the Board specifically notified the defendant of the plaintiff's expected return-to-work date or provided the defendant with documentation of the date.
iii. The Application by the Defendant of Rule 24 to the Plaintiff
The plaintiff also disputes that her conduct violated Rule 24 of the CBA. Specifically, she argues that "Rule 24 is predicated on [an] employer's lack of knowledge of an employee's whereabouts," Pl.'s Opp'n at 18, and "[b]ecause [the d]efendant knew that [she] was absent from work due to illness, ... Rule 24 was not available to [it] and [its] use of [the Rule] to terminate [the p]laintiff[ ] was [ ] pretext," id. at 19. The defendant argues that "nothing in Rule 24 limits its use to cases where Amtrak has no information about the reason for an employee's absence," Def.'s Reply at 9, and nothing in the record demonstrates "the circumstances under w[hich] [ ] [R]ule [24] is normally invoked," id. at 7. The defendant further argues that "it is neither [the p]laintiff's nor the Court's role to question how Amtrak and the [Union] interpret Rule 24 or the circumstances under which Amtrak customarily invokes it, so long as there is no evidence of discriminatory application, as is the case here." Id. Although the defendant is correct that the plaintiff has not introduced any evidence of the circumstances under which Amtrak typically invokes Rule 24, the plaintiff's position that Rule 24 was inapplicable to her situation finds some support in the plain language of Rule 24, which purports to apply where an "[e]mployee [ ] [is] absent from work for ten [ ] days without notifying the corporation." Said Dep., Ex. 3 (CBA) at 30 (emphasis added).
The decisions the defendant cites for the proposition that it is not "the Court's role to question how Amtrak ... interpret[s] Rule 24," Def.'s Reply at 7 (first citing *331Dudley v. Wash. Metro. Area Transit Auth.,
iv. The Plaintiff's Failure to Respond to the Defendant's Rule 24 Correspondence
Finally, although it is undisputed that the plaintiff did not respond to the defendant's Rule 24 correspondence, see, e.g., Pl.'s Opp'n at 32 (acknowledging that "both letters [were] returned undelivered [to the d]efendant"), the plaintiff appears to assert that certain circumstances surrounding the Rule 24 correspondence demonstrate that this proffered reason is pretext. First, the plaintiff argues that the defendant "intentionally sent her notice and termination letters via FedEx to her old address[,] because it was part of [its] scheme[ ] to insure that she d[id] not find out [about her termination i]n time[ ] to challenge her managers," Pl.'s Opp'n at 3, when it "knew, ha[d] reason to know, or should have known ... her [correct] address," id. at 15. Furthermore, she argues that pretext is demonstrated by the fact that the defendant "sen[t] mail for a second time to the same address, when the first mail had come back undelivered," and *332the "[d]efendant and its managers and supervisors and Human Resources office, who had her telephone number in their 'system'-the same number [ ] Ryan called her on[ ] in April[ ] 2011 ..., did not use the phone and call [the plaintiff]." Id. at 32.
The Court concludes that the vast majority of the plaintiff's evidence fails to demonstrate that Ryan or anyone else involved in her termination knew or should have known her correct address. Although the plaintiff testified that "Ryan had [her] address on the letter from the [life] insurance company that was sent to [her] home," Said Dep. 114:24-25, the plaintiff has failed to produce any evidence to demonstrate that Ryan received such a letter.
Moreover, as the defendant notes, the plaintiff has not shown that there is reason to believe that her address was ever updated in the defendant's records. See Def.'s Mem. at 8 ("[N]either Amtrak nor the [ ] Union had any [ ] address [other than her old address] on file for her[.]"). She has not provided sufficient evidence to dispute Ryan's deposition testimony that the plaintiff's address on record when the Rule 24 correspondence was sent was her District of Columbia address, see Def.'s Facts ¶ 47 (asserting that in preparing the Rule 24 notification letter, "Ryan ... us[ed] the address on file in Amtrak's [ ] database ... [and] also contacted Amtrak's Human Resources Department to confirm [the p]laintiff's address"),
However, the Court cannot entirely dismiss the plaintiff's argument that pretext is to some extent demonstrated by the circumstances surrounding the defendant's Rule 24 correspondence. First, the plaintiff has provided some, albeit very little, evidence that Ryan knew her correct address at the time he sent her Rule 24 correspondence, in the form of her testimony that "Ryan knew about [her] new address because [during their] call[ ] ... [in the] first part of May [2011]," Said Dep. 124:23-24, "[she] told him [she] had moved," id. 125:7-8. Second, it is undisputed that approximately six months later, when the Rule 24 notification letter was returned as undeliverable, "Ryan ... did not use the phone and call [the plaintiff]." Pl.'s Opp'n at 32. Although the defendant argues that "Ryan did not attempt to contact [the p]laintiff by telephone[ ] because it is Amtrak's policy to send Rule 24 communications exclusively in writing, so as to have a clear record of the same," Def.'s Facts ¶ 51 (citing Ryan Dep. 53:20-56:4), and that "[i]t is not the Court's role to assess whether Amtrak's procedures were optimal, but [only] whether its actions were motivated by discrimination," Def.'s Mem. at 7 (citing Dudley,
In sum, the plaintiff has identified facts in the record sufficient to cast doubt on two of the defendant's proffered reasons for her termination-that the plaintiff failed to communicate with the defendant during her extended leave of absence and failed to notify the defendant of the reason for her extended leave of absence, see Def.'s Mem. at 6-and to make a reasonable jury "quite suspicious" of the defendant's application of Rule 24 to the plaintiff and the circumstances surrounding the defendant's Rule 24 correspondence, see Morris,
*335C. The Plaintiff's DCHRA Claims
1. Statute of Limitations
The defendant argues that "[a]lthough the DCOHR accepted [the p]laintiff's [c]harge [of discrimination], it should have been dismissed as time-barred because the only thing [the p]laintiff submitted to the DCOHR within the one-year statute of limitations was an Intake Questionnaire," and the "content of the Intake Questionnaire ... does not satisfy the Supreme Court's test for when filing a document short of a [c]harge tolls the statute of limitations." Def.'s Mem. at 14 n.3 (citing Fed. Express Corp. v. Holowecki,
In order for DCHRA claims to be timely, a plaintiff need only file a "complaint" with the DCOHR "within [one] year of the occurrence of the unlawful discriminatory practice, or the discovery thereof."
*3362. The Plaintiff's Race and Gender Discrimination Claims
The defendant further argues that the Court should grant it summary judgment as to the plaintiff's race and discrimination claims under the DCHRA for the same reasons it asserted regarding the plaintiff's § 1981 claim. See Def.'s Mem. at 15 ("[The p]laintiff's race and gender claims under the DCHRA fail ... [because] Amtrak has articulated a legitimate business reason for terminating [the p]laintiff's employment and she can offer no evidence to demonstrate that Amtrak's reason was pretext for race discrimination."). The defendant is correct that in the absence of direct evidence of discrimination, the same McDonnell Douglas burden-shifting framework applies in evaluating discrimination claims under the DCHRA. See, e.g., Mitchell v. Nat'l R.R. Passenger Corp.,
The Court also concludes that the same evidence relied upon by the plaintiff to establish her race discrimination claims also supports, even though less convincingly, her gender discrimination claim under the DCHRA. As to Ryan's alleged remark, "you all look alike," Said Dep. 87:23-24, which the plaintiff asserts was "directed toward[ ] [her and] black [ ] women," id. 93:7-8 (emphasis added), given the "difficulties inherent in parsing out [employment discrimination] claims brought by individuals, [such as] African American women, who fall under more than one protected class," Mosby-Grant v. City of Hagerstown,
3. The Plaintiff's Disability Discrimination Claim
The defendant argues that the plaintiff's disability discrimination claim under the DCHRA must fail because the plaintiff cannot establish a prima facie case of disability discrimination, see Def.'s Mem. at 15-17, and "cannot establish pretext for the same reasons that she is unable to do so with respect to her race and gender discrimination claims," id. at 17. Like the plaintiff's race and gender discrimination claims, her disability discrimination claim must be analyzed under the McDonnell Douglas burden-shifting framework. See *337Giles v. Transit Emps. Fed. Credit Union,
The defendant argues that the plaintiff has failed to establish a prima facie case of disability discrimination for two reasons. First, although the defendant does not dispute the plaintiff's allegations that she "had a disability [because] she suffered from [h]ypertension, [i]nsomnia, and [d]epression among other ills," Pl.'s Opp'n at 40, it argues that the "[p]laintiff can offer no proof that Amtrak or [ ] Baylor ... knew [that the p]laintiff was disabled or perceived her as being disabled," Def.'s Mem. at 16. Second, it argues that the plaintiff cannot "establish that she was able to perform the essential functions of her position with or without reasonable accommodation." Id. at 16-17. However, as the defendant acknowledges elsewhere in its brief, see id. at 5, "once the employer asserts a legitimate, non[ ]discriminatory reason [for its challenged action], the question whether the employee actually made out a prima facie case is no longer relevant and thus disappear[s] and drops out of the picture," Giles,
Nonetheless, the Court finds it appropriate to consider the defendant's argument that it lacked knowledge of the plaintiff's alleged disability. Whether an employer knew about an employee's disability is a "threshold question[ ]" with respect to the issue of disability discrimination vel non, Conn,
Here, the plaintiff argues that the defendant "knew [ ] and had reason to know" that "[i]t was [the p]laintiff's disability that took her out of work for about a year ... because she was collecting sickness benefit[s] from the [Board] and the [Board] gave [the defendant] notice of that as [it] was required to do under the law." Pl.'s Opp'n at 41. She further argues that "Brewer[ ] knew that [she] was ... ill[ ] and that she was on sickness benefit."
Furthermore, even if the defendant knew that the plaintiff was receiving sickness benefits, that knowledge would only necessarily put the defendant on notice that the plaintiff had demonstrated to the Board that she suffered from any one of a number of conditions, see
The defendant also argues that the plaintiff "cannot establish pretext ... [because s]he simply has no evidence of discriminatory animus other than her own rank conjecture, w[hich] is patently insufficient to meet her burden." Def.'s Mem. at 17. The Court agrees that the plaintiff has not proffered sufficient evidence to establish that the defendant's proffered reasons for her termination are pretext for disability discrimination. As already discussed at length, although the plaintiff has provided evidence that some of the defendant's proffered reasons are pretext, unlike in the context of her race and gender discrimination claims, she has not proffered any discriminatory statements or other evidence that could give rise to an inference of discrimination on the basis of her purported disability. See Giles,
In sum, although the plaintiff has provided sufficient evidence for a reasonable jury to find that some of the defendant's proffered reasons for her termination "w[ere] not the actual reason[s]" for her termination, Adeyemi,
D. The Plaintiff's Due Process Claims
In response to the plaintiff's claim that the defendant "violated her due process rights under the [Fifth Amendment to the United States] Constitution" when it "took away her property interest *340in her job," Compl. ¶ 64, the defendant argues that the "[p]laintiff cannot demonstrate either a procedural or substantive Due Process violation," because, inter alia, the plaintiff has not "identif[ied] the source of [her alleged] property interest." Def.'s Mem. at 22. As the defendant notes, see Def.'s Reply at 23, the plaintiff's only response to this argument is that she "ma[d]e[ ] a legitimate due process argument[ ] and has provided probative evidence [ ] that [ ] [the d]efendant intentionally planned and orchestrated her termination in a manner that was deliberately intended to ensure that she had no opportunity to defend herself, or to go through the CBA process with her [U]nion." Pl.'s Opp'n at 43.
The Due Process Clause of the Fifth Amendment provides that "no person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. In assessing the plaintiff's due process claim, the Court notes as an initial matter that the plaintiff does not specify whether she is asserting a procedural or substantive due process claim, or both. However, even assuming that she is asserting both types of due process claims, the Court agrees with the defendant that both lack merit.
To establish a Fifth Amendment procedural due process claim "based on termination from employment, ... a plaintiff must demonstrate that [s]he has a 'property interest in continued employment.' " Dave v. D.C. Metro. Police Dep't,
To assert a substantive due process violation, a plaintiff must demonstrate that she was arbitrarily deprived of a fundamental right, liberty, or property interest that is based in the United States Constitution. See Regents of the Univ. of Mich. v. Ewing,
E. The Plaintiff's Wrongful Discharge in Violation of District of Columbia Public Policy, Fraudulent Misrepresentation, and Negligent Misrepresentation Claims
Finally, the defendant argues that the plaintiff's claims for wrongful discharge *342in violation of District of Columbia public policy, fraudulent misrepresentation, and negligent misrepresentation are barred by the applicable statutes of limitations, and therefore, the Court should grant summary judgment to the defendant as to these claims. See Def.'s Mem. at 23-24. The defendant is correct that these claims are subject to a three-year statute of limitations under District of Columbia law. See Drake v. McNair,
The plaintiff argues that the defendant should be "estopped from claiming that [she] brought her action untimely because it intentionally and actively ensured that she not find out [ ]timely so as to have the opportunity to know what ha[d] been done to her and appropriately defend herself." Pl.'s Opp'n at 44. Although the doctrine of equitable estoppel may be used to toll a statute of limitations in situations where "the defendant takes active steps to prevent the plaintiff from suing in time," Gonzalez v. Internacional de Elevadores S.A.,
The plaintiff further argues that as a result of the defendant's actions, she "could not have brought her action prior to when she did, before trying to exhaust [her] administrative remedies open to her, even at that late time that she found out she was terminated," id. at 44; however, she again has failed to offer any explanation for this position. As the Court explained in its prior opinion in this case, the plaintiff "had the right" to file a grievance *343on her own behalf but "opted not to," Said v. Nat'l R.R. Passenger Corp.,
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the plaintiff has produced sufficient evidence for a reasonable jury to find in her favor on her race discrimination claim under
SO ORDERED this 10th day of July, 2018.
Although the plaintiff's Complaint purports that "[t]his action arises under [42 U.S.C. §] 1983," see Compl. ¶ 3, the Complaint contains no counts pleading a § 1983 claim, see generally Compl. ¶¶ 43-75, and the plaintiff makes no other reference to § 1983 in her Complaint or her opposition to the Defendant's Motion for Summary Judgment, see generally Compl.; Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment. Therefore, the Complaint's reference to § 1983 appears to be an error, and accordingly, the Court need not consider whether a non-existent § 1983 claim is the subject of the defendant's summary judgment motion.
In addition to the filings already identified, the Court also considered the following submissions in rendering its decision: (1) the Defendant's Memorandum of Points and Authorities in Support of Its Motion for Summary Judgment ("Def.'s Mem."); (2) the Defendant's Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment (the "Defendant's Statement of Undisputed Facts" or "Def.'s Facts"); (3) the Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n"); (4) the Plaintiff's Statement of Disputed Genuine Material Facts in Dispute in Support of Her Opposition to Defendant's Motion for Summary Judgment (the "Plaintiff's Statement of Disputed Facts" or "Pl.'s Disputed Facts"); and (5) the Defendant's Reply Memorandum of Points and Authorities in Support of Its Motion for Summary Judgment ("Def.'s Reply").
The Court notes that the plaintiff has raised no objection to the admissibility of the exhibits submitted by the defendant in support of its motion, see generally Pl.'s Opp'n, which are supported by a declaration from the defendant's counsel, see generally Def.'s Mot., Attachment (Declaration of Joshua B. Waxman in Support of Defendant's Motion for Summary Judgment (Apr. 28, 2017) ).
The Defendant's Statement of Undisputed Facts states that McClinton's first request for a leave of absence on the plaintiff's behalf sought a return date of April 1, 2011, from the leave of absence, see Def.'s Facts ¶ 14; however, the document the Defendant's Statement of Undisputed Facts cites as support for this assertion is a leave of absence request form introduced by the defendant at the plaintiff's deposition, which indicates an "Estimated Return from [the Leave of Absence]" on March 1, 2011, see Said Dep., Ex. 7 (February 15, 2011 Request). Therefore, the Court concludes for purposes of the defendant's motion for summary judgment that the estimated return date associated with McClinton's first request for a leave of absence for the plaintiff was March 1, 2011.
The Court notes that the record does not contain any documentation purporting to authorize the plaintiff's leave of absence for the period between March 1, 2011, the "Estimated Return from [the Leave of Absence Date]" indicated on McClinton's first leave of absence request form, see Said Dep., Ex. 7 (February 15, 2011 Request), and March 26, 2011, the "Effective Date" indicated on McClinton's second leave of absence request form, see Said Dep., Ex. 8 (March 31, 2011 Request). Although the plaintiff has attached to her opposition a third leave of absence form dated March 8, 2011, with an "Effective Date" of February 26, 2011, and no "Estimated Return from [the Leave of Absence] Date," see Pl.'s Opp'n, Ex. I (Request for Leave of Absence/Return from Leave of Absence (Mar. 8, 2011) ) at 3, she does not assert that this form authorized her leave of absence during any period, but argues only that it demonstrates that the defendant's documentation of her leave "make[s] no sense,"
Despite what she said during her deposition, the plaintiff asserts in her opposition that she did not learn about her termination until February 9, 2012, see, e.g., Pl.'s Opp'n at 16; however, she does not cite to any fact in the record to support this claim, see generally Pl.'s Opp'n. In any event, even if the plaintiff did not find out about her termination until February 9, her Title VII claims would still be untimely because, as explained in further detail infra, the record evidence demonstrates that her DCOHR charge of discrimination was untimely by at least several weeks and potentially several months.
The Court notes that the plaintiff does not argue that the Title VII statute of limitations should be equitably tolled for any reason. See generally Pl.'s Opp'n. To the extent that she incorporates her equitable tolling arguments made in the context of her wrongful termination and misrepresentation claims, for the reasons explained in Part III.E, infra, the Court finds those arguments unpersuasive.
In summarizing the defendant's arguments regarding the plaintiff's § 1981 claim, the Court cites to the portion of the defendant's brief that addresses the plaintiff's Title VII claims because the defendant raises the same arguments against both claims. See Def.'s Mem. at 14 (asserting that the "[p]laintiff's [s]ection 1981 claim ... fails for the same reasons" as her Title VII claims).
The plaintiff argues that the "[d]efendant did not claim to have terminated [the p]laintiff for [a] common legitimate reason ... [,] such as ... because she was not a good or competent worker," but "terminated her [for the] 'special' 'uncommon' reason [of] Rule 24 of the CBA." Pl.'s Opp'n at 30. Although this Circuit has held that a plaintiff's "show[ing] that [her] termination was not attributable to either of the two most common legitimate reasons for termination: performance below the employer's expectations or the elimination of the plaintiff's position altogether ... is sufficient to satisfy a plaintiff's burden of establishing a prima facie case at the summary judgment stage," Harris v. D.C. Water & Sewer Auth.,
The Court notes that contrary to the defendant's position, the plaintiff's testimony is not necessarily contradicted by her "co-worker and supervisor ... [, who] deny any recollection of" Ryan's comment, Def.'s Mem. at 10, because the plaintiff testified that her supervisor, McClinton, left Ryan's office before Ryan allegedly made the comment, see Said Dep. 90:5-10, and her co-worker, Lockhart, only stated that he largely does not remember the events of that day, see Pl.'s Opp'n, Ex. M (Affidavit of Lee Lockhart (Sept. 28, 2013) ) (stating that he "vaguely remember[s] the crew base asking [him] if [the plaintiff] was at her post," and that he told the crew base "to the best of [his] memory [ ] [the plaintiff] was doing her job," but that he "do[es] not remember anything else from that day besides smoking a cigarette with [the plaintiff] in front of the crew base").
The defendant relies in part on the Circuit's decision in Hall v. Giant Food,
The plaintiff also argues that "Ryan had a discriminatory animus against her[ ] [because] she kind of reminds him of a black woman who had a [child] with [his] son, ... [who] was in prison for ... killing his [child] with that black woman." Pl.'s Opp'n at 24. As support for her claim, she relies on Ryan's testimony confirming that his son is incarcerated for the murder of his child, whose mother is an African American woman, see Pl.'s Opp'n at 36; Ryan Dep. 32:21-34:2, and her assertion that "it was well-known at work[ ] that [ ] Ryan was very angry that his son was in jail for murder, and that he has said, [ ] but for that black woman[ ] [his] son 'mixed up with' he would not have been in jail," Pl.'s Opp'n at 24. However, as the defendant notes, see Def.'s Mem. at 11, the plaintiff admitted in her deposition that she did not hear Ryan make any statements about the events surrounding his son's incarceration, see Said Dep. 91:15-20, but that she only "heard indirectly from other coworkers talking ... that [Ryan] was not too fond of African-American women," id. 91:2-7; see also id. 91:13-14 ("It was just the buzz that was going around."). Deposition testimony "based on second-hand information rather than personal knowledge, [ ] amount[s] to inadmissible hearsay and may not be considered in resolving a motion for summary judgment." Lemmons,
The plaintiff also argues that the defendant "had reason to know [of the reason for her extended leave] because she was collecting sickness benefits" from the Board, Pl.'s Opp'n at 19, and the Board "is obligated by an Act of Congress[ ] to inform the employer" of her sickness benefits, id. at 33. However, even if the Board notified the defendant of the plaintiff's sickness benefits, that fact would not demonstrate that the plaintiff advised the defendant of the reason she continued to be on leave. In any event, for the reasons explained infra, the Court finds that the plaintiff has identified other evidence sufficient to create a genuine dispute of material fact as to whether she advised the defendant of the reason she continued to be on leave.
The plaintiff also argues that "Rule 24[,] by its terms, makes termination voluntary," and therefore does not apply to the plaintiff's situation. Pl.'s Opp'n at 14. She further argues that the "[d]efendant's own 'Separation Checklist for Cheryl Said,' [which] continuously classified her termination as 'Involuntary Separation,' " "contradict[s]" Rule 24. Id. at 15. However, the plaintiff's interpretation of Rule 24 is not supported by its text, which states that "[e]mployees who are absent from work for ten [ ] days without notifying the corporation shall be considered as having resigned from the service," Said Dep., Ex. 3 (CBA) at 30 (emphasis added), and contrary to the plaintiff's position, does not purport to apply only when an employee voluntarily resigns.
The plaintiff has not attached to her Complaint or opposition any letters from Security Mutual Life sent to Ryan that reflect her correct address. The only letter from Security Mutual Life she has produced is a letter from that company that was sent to her, which does indeed reflect her correct address, but does not indicate that the letter was ever sent to Ryan or seen by him. See Compl., Ex. D (Letter from Pat Bush, Advanced Life Claims Examiner, Security Mutual Life, to Cheryl R. Said (May 26, 2011) ).
The plaintiff has generally argued that during his deposition testimony, Ryan "obfuscated and told outright lies and contradicted himself many times," Pl.'s Opp'n at 26, for example, by "deny[ing] any kind [of] supervisory responsibility over [the p]laintiff," id. at 27, and "cook[ing] up a fantastic and totally untrue and different story from what actually happened" in 2010 when he allegedly made a discriminatory remark to the plaintiff, id. at 25. However, the plaintiff has given the Court no reason to question the accuracy of Ryan's testimony regarding the absence of her new address in the defendant's files, and in any event, as already explained, the Court may not resolve issues of credibility at the summary judgment stage. See Anderson,
Although a number of the records identified by the defendant as evidence that the plaintiff's address was never updated in the defendant's files appear to have been printed nearly a year after the Rule 24 correspondence was sent, see, e.g., Said Dep., Ex. 13 (record of the plaintiff's February 9, 2012 phone call with an Amtrak Human Resources representative printed by the defendant on July 31, 2013), the plaintiff has not submitted any evidence to suggest that her address was ever updated in the defendant's files at any point prior to the date that these records were generated. Therefore, the Court finds that these records support the defendant's position that the plaintiff's address was never updated in the defendant's files.
The plaintiff also asserts that she "can establish proof of disparate treatment[ ] because she is the only black employee at Amtrak[ ] who [ ] Ryan has addressed the way he has." Pl.'s Opp'n at 30. Although a plaintiff may "support an inference that the employer's stated reasons were pretextual, and [that] the real reasons were prohibited discrimination ..., [by citing] the employer's better treatment of similarly situated employees outside the plaintiff's protected group," Walker v. Johnson,
The plaintiff's Complaint also references the Americans with Disabilities Act ("ADA") in the context of her wrongful discharge claim, see Compl. ¶ 66 ("[The p]laintiff believes she was wrongfully discharged in violation of public policy under the ADA, Fifth Amendment, and D[.]C[.] Human Rights."), but the plaintiff conceded in her opposition that she "did not make [a]n ADA claim," Pl.'s Opp'n at 43. Consequently, the Court need not consider an ADA claim.
The Court may take judicial notice of information on official public websites of government agencies. See Pharm. Research & Mfrs. of Am. v. U.S. Dep't of Health & Human Servs.,
To evaluate the plaintiff's DCHRA disability discrimination claim, the Court considered decisions interpreting the ADA, which are "persuasive" in the DCHRA context, Giles,
Indeed, as the defendant notes, see Def.'s Reply at 13-14, the regulations implementing the Railroad Unemployment Insurance Act prohibit the Board from providing access to a claimant's medical records except pursuant to "special procedures" that the plaintiff has not alleged were followed here, see
The defendant also argues that any due process claim must fail because the "[p]laintiff offers no basis for application of the Fifth Amendment to Amtrak," Def.'s Mem. at 22, and that the plaintiff's procedural due process claim must fail because the plaintiff "eventually receive[d] notice" of her termination,
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
Reference
- Full Case Name
- Cheryl Renee SAID v. NATIONAL RAILROAD PASSENGER CORPORATION
- Cited By
- 12 cases
- Status
- Published