SHARMA v. DISTRICT OF COLUMBIA, No. 1:2010cv01033 - Document 122 (D.D.C. 2014)
Court Description: MEMORANDUM OPINION to the Motions for Summary Judgment. Signed by Judge Gladys Kessler on 8/25/14. (CL, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA } } } } } } } } } } RAMESH SHARMA, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant. Case No. 1:10-cv-1033(GK} ________________________________ } MEMORANDUM OPINION Plaintiff Ramesh Sharma ("Plaintiff" this suit against his former employer, ("Defendant" Rights Act or of "the District"), 1964, 42 et seq.; and the "Sharma") under Title VII U.S.C. 2000e, §§ District Protection Act ("DCWPA"), D.C. Code brings the District of Columbia Discrimination in Employment Act of 1967 621 or of et of the Civil seq.; ( "ADEA'') , Columbia the Age 2 9 U.S. C. § Whistleblower 1-615.51. § This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment [Dkt. Motion for Summary Judgment of the [Dkt. Motions, Nos. Authority Oppositions 104, [Dkt. No. 113] 1 No. 96] [Dkt. No. [Dkt. and 107]. Nos. Plaintiff's Defendant's Upon consideration 100, Notice Cross 110-2], of Replies Supplemental 120], and the entire record herein, and for the reasons stated below, Plaintiff's Motion for Partial Summary Judgment shall be denied and the District's Cross Motion for Summary Judgment shall be granted in part and denied in part. I . Background Factual Background 1 A. Sharma, a United States citizen of Asian-Indian origin, was previously employed Contracting Contract & by Procurement Specialist Renovation the ("CDBR") in District ( "OCP" the Group. of or the Columbia's "Agency") Construction Design See Def.'s Resp. Office of as a Senior and Building to Pl.'s Statement of Material Facts ("SOMF") , 8 [Dkt. No. 100] Sharma alleges that, position in January 2003, at his initial Karen Hester official and then-Manager of Contracting, interview ("Hester"), for this the hiring "asked [him] if he was willing to do all types of work she would assign him, including clerical, people typing, from Pakistan, his and and part filing of Bangladesh[,] supervisors or leaders [.]" [Dkt. No. 50] . the work, because world (South Asia), were very she lazy thought and Third Amended Complaint The District denies this allegation. like most India, made poor ( "TAC") , 11 Answer to TAC ("Answer") , 11 [Dkt. No. 52]. 1 Unless otherwise noted, the facts are undisputed and drawn from either the pleadings or the parties' Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h). -2- In any event, at the time, as Hester hired Sharma, and, on May 26, 2004, "outstanding" in four out who was 64 years of age she evaluated his performance of five performance categories. She elaborated that: [Sharma] brings a vast amount of know 1 edge and experience in contracting He is extremely diligent, does not need supervision and exercises a high degree of judgment in carrying out assignments that are sensitive and highly visible. Ex. to Def.'s Opp'n [Dkt. 2004) Relations" No. at 100 category, (performance evaluation dated May 26, ECF pp. however, "satisfactory" I" acceptable," 77-78]. Hester and judged In the "Personal to cautioned that she Sharma he be only "should be careful not to offend others in his zeal for timeliness and thoroughness." In June Id. 2005, Hester performance evaluation, of five categories again issued rating him as and observing analyzing and resolving problems" "outstanding" that and Sharma he "is "takes the a glowing in four out proactive in initiative to do all that he can do to complete a project or assignment in a timely Ex. [Dkt. manner, to Def. 's No. 100 that Sharma's including Opp' n at hours of (performance ECF pp. 79-80]. "Personal Relations" -3- work without evaluation She compensation." dated June opined again, 2005) however, were only "satisfactory" and she indicated that his co-workers. he "needs improvement in cooperating with 11 She explained: In his zeal for timeliness, thoroughness and integrity Mr. Sharma has offends [sic] internal and external customers on occasion. In this regard, Mr. Sharma must improve the content and tone of his 2 communications with internal and external customers. Id. Sharma's improve. relationships Sharma contends with customers that the reason improvement was that his supervisors, repeatedly "pressured 11 District's procurement him ~ He 18. for ways and for the that lack "bypass "rubber- stamp 11 example, however, of and customers to which he refused to do. alleges, not, co-workers, find regulations~~ and wasteful contracts, TAC to did the inflated See generally he refused an influential lobbyist's demand that he process a $1 million claim evaluated to be "worth only about $100,000, million, as claimed by the contractor[,] "failed costs [.] by 2 to 11 provide Id. ~~ the 14-16. [OCP Deputy Director, required 11 not about $1 because the contractor justification [and] proof of He also objected to alleged "[e]fforts Peter May, and OCP Project Manager, Hester appears to have used the term "internal customers 11 to refer to employees of District of Columbia agencies other than OCP and the term "external customers 11 to refer to contractors and other non-District of Columbia persons. See Pl.'s Mot. Ex. 10 (deposition tr. of Karen Hester ("Hester tr. I")) at 103:7-10 [Dkt. No. 96-13]. -4- Tony Esse] to Consolidated contractor addition, steer Forensics at highly a Conceptual Lab (CFL) inflated Design project contract to prices[.]" a for the pre-selected ~ Id. In 18. he complained about a Department of Health official's alleged attempt and [a] to coerce him into ignoring procurement general lack of "cost control contracts administered by Mr. Esse." On July complaint" 11, 2 005, with complaining of the these Sharma D.C. many of the Id. filed his first "whistleblower and Auditor and other on rules D.C. City alleged violations. Council, On Id. March 17, 2006, he filed several more "whistleblower complaints" of the same type with the D.C. D.C. Auditor, and the D.C. workers and supervisors, Inspector General's Office, City Council. in turn, Id. ~ 30. the His co- complained that he was "not helpful" and requested that he be removed from certain projects. Id. ~~ 26, 29, 30. In August order from Ms. Project after Sharma refused Hester to "do whatever Manager contracts, among 2006, Esse] want you to to comply with [Deputy Director May and do to process" other 67, certain Hester issued him a letter of admonishment stating, things, that he had "poor customer relations," exhibited "disruptive behavior," and was insubordinate. 58-60, an 68. Thereafter, on October 18, -5- 2006, Id. ~~ Sharma filed additional complaints with the D.C. States Department of Justice, D.C. Auditor, the United Mayor's Office, the D.C. States Equal the United Inspector General, Employment the Opportunity Commission ("EEOC") and the D.C. Office of Human Rights alleging retaliation, discrimination, and violations of federal and D.C. whistleblower and false claims laws. On December 12, 2006, Id. ~ 69. Sharma again refused a direct order from Hester to process a major contract, this one related to the Anacostia Waterfront project, which he contended was "illegal" because "it involved millions of dollars of hidden equipment[.]" Id. ~~ The same day, Sharma submitted further complaints 71-74. of ethical violations to the D.C. Auditor and the D.C. Office of the Inspector General. Id. ~ 75. Hester subsequently removed him from the Anacostia Waterfront Project and the project was reassigned to another employee who, according to Sharma, had "no engineering contracts. background or experience" in complex design Id. ~ 78. -- Sharma alleges that, in April 2007, in a meeting to discuss Sharma's multiple grievances, Hester told him: Ray, you are filing too many complaints with the IG, the Auditors [sic] office, EEOC, and the Mayor. You are making the Mayor's office and other big bosses very mad. They will get back at you and you are also making my job difficult. You need to be careful. It will take you nowhere but trouble [.] -6- Id. ~ In June Sharma's 96. The District denies this allegation. 2007, another performance as supervisor, "unsatisfactory" Diane in Wooden, the rated "Personal Relations" category and only "satisfactory" in three of the five remaining performance that Sharma had a categories. While Wooden acknowledged "vast amount of experience and knowledge of [the] construction procurement processes," she observed that the positive aspects of his performance are marred by poor personal relations with customers and other stakeholders. Mr. Sharma is argumentative, condescending, and an obstacle to District employees who disagree with his perspectives and who are often seeking advice and assistance from OCP on the proper way to get contracts awarded. In fact, the quantity of work that is expected of an employee at his level is deficient because customers have complained and requested that Mr. Sharma not be assigned to their projects. Ex. 2007) to Def. 's Mot. (performance evaluation, dated June 2, [Dkt. No. 100 at ECF pp. 81-82]. Sharma refused to sign this performance evaluation. few months later, in August 2007, EEOC complaint, complaining of, discrimination, harassment, threats, he filed amendments inter alia, hostile work -7- A to his "continuing acts of environment, [and] retaliation by Ms. Hester and Mr. Mack [.]" 121. Id. severe TAC ~ The acrimony between Sharma and his in the 2008, and same general pattern throughout and early 2009. June 2009, supervisors the continued remainder of 2007, In the meantime, between November 2005 applied open Sharma for 20 directorship positions within OCP but was not supervisory and selected for any of them. On March 4, David Gragan 2009, the District's Chief Procurement Officer, ( "Gragan") Sharma worked, announced that this CDBR group, where would be transferred from OCP to the District of Columbia's Office of Property Management with the move, Sharma's colleagues In connection ("OPM"). in the CDBR transferred to other positions within OCP or were group sent were to the Sharma, newly formed OPM construction contracting division. by contrast, was not transferred to another position or sent to the newly formed OPM division. On May 29, stating that, would be 2009, as a received result of a "separated See Ex. 06/19/09." Sharma a letter reduction in force from District government to Def. 's Opp' n to Ramesh Sharma, ( "RIF notice")) [Dkt. No. 100 only the CDBR group as result District's of employment a at -8- ECF p. who of Gragan, ( "RIF") , service he effective (letter from David Gragan, Chief Procurement Officer, member from was the dated May 18, 59] . Sharma was separated RIF. His from 2009 the the separation went into effect on June 19, 2009, at which time he was approximately 71 years old. B. Procedural Background Sharma claims § filed this the DCWPA under 3730(h). Dismiss lawsuit and Original Complaint denied on June 17, 2011 Sharma the June False 18, 2010, Claims asserting Act, 31 U.S.C. On September 1, 2010, the District filed a Motion to the Columbia, on 791 F. [Dkt. No. Supp. subsequently [Dkt. 2d filed 207 a No. 21]. 5] , which the Court See Sharma v. Dist. of (D.D.C. ("Sharma 2011) Second Amended Complaint I"). ("SAC") [Dkt. No. 42] on February 6, 2012, and a Third Amended Complaint ("TAC") [Dkt. No. 50] on March 28, Title VII and the ADEA. 2012, adding claims under On April 16, 2012, the District moved to dismiss Sharma's claim under the False Claims Act Sharma v. Dist. 53], which the Court granted on August 8, 2012. of Columbia, 881 F. Supp. 2d 138, 142-43 [Dkt. No. (D.D.C. 2012) ("Sharma II"). The parties conducted discovery from February 2012 through February 2013. See Scheduling Order dated Feb. 7, 2 012 [Dkt. No. 43]; Minute Order dated Dec. 17, 2012; Order dated Jan. 28, 2013 [Dkt. whether failed No. 86]. During this time, intentionally to retain a or great it came to light that, unintentionally, deal -9- of relevant the and District had discoverable information, of other including "information pertaining to the selection individuals for positions Plaintiff has applied for, his performance record during the relevant period of time, procedures and applicants 15, 2013, The policies for positions at 2 regulation, in OCP and was conceded a C.F.R. 29 the selection of [OPM] . " Order dated Jan. failure to Sharma relief and ordered that, Civ. its of attorneys' P. "as a 37 (a) (3) the Id. 1602.14. § awarded R. that violation Court with Fed. to [Dkt. No. 81] District information pertaining and EEOC's and the (4), record-keeping the various sanction for and this Consequently, at 3. fees preserve discovery failure to comply [District] will be deemed to have waived any privilege objections to any documents produced more than 14 days after issuance of this Order[.]" Id. at the 6-7. The Court thereafter denied an 2013 12, Judgment 2013, [Dkt. Sharma No. 96] . District filed its Opposition 2013, filed On [Dkt. No. his Motion September 100] for 4, Partial 2013, the On September 19, Sharma filed his Reply [Dkt. No. 104]. On September 27, for by [Dkt. No. 91] . On August Summary Motion See Order dated May District to conduct additional discovery. 28, oral Summary Judgment 2013, [Dkt. the District filed its Cross Motion No. -10- 107] . On November 4, 2 013, Sharma 2013, filed his Opposition [Dkt. No. 110]. On the District filed its Reply [Dkt. No. 113]. 2014, Sharma [Dkt. No. filed 116] . a Sur-Reply Thereafter, with 2014, 5, On April 14, permission on June 6, December of the Court he filed a Notice of Supplemental Authority [Dkt. No. 120]. II. STANDARD ON SUMMARY JUDGMENT Summary judgment may be granted only if the pleadings, discovery and disclosure materials on file, the and any affidavits show that there is no genuine issue as to any material fact and that the law. moving party is (D.C. Cir. 2006). 'genuine' if could return a 473 F.3d at u.s. the judgment as a matter of See Fed. R. Civ. P. 56(c); Arrington v. United States, 473 F.3d 329, 333 is entitled to 242, outcome party to material such (quoting Anderson v. the that a reasonable Liberty Lobby, A fact is umaterial" case 477 U.S. demonstrate fact. is for the non-moving party. '" (1986)). of Liberty Lobby, evidence verdict 333 248 'the uA dispute over a material fact under at the Celotex the 248. Corp. substantive v. of any Catrett, Arrington, Inc., 477 if it might affect The burden absence jury is governing on the moving genuine 477 law. U.S. issues of 317, 323 (1986) . In deciding a motion for summary judgment, uthe court must draw all reasonable inferences in favor of the nonmoving party, -11- and it may evidence." 133, 150 not make credibility determinations Reeves v. Sanderson Plumbing Prods., (2000). or weigh Inc., the 530 U.S. The Supreme Court has consistently emphasized that the judge's function is not to "determine the truth of the matter, Liberty Lobby, "whether the 477 U.S. presents evidence at a 249, but merely to decide sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. III. DISCUSSION In his TAC, retaliation brings claims for discrimination and the DCWPA. he contends that his separation in 2 009, and the under Specifically, District's Sharma refusal Title to VII the I select him ADEA, for and the 20 supervisory positions to which he applied between 2005 and 2009, based on his whistleblower. A. race, age, and/or See generally TAC ~~ the fact that were each he was a 402-34. Legal Framework Whether brought under Title VII, discrimination and retaliation the ADEA, claims such as or the DCWPA, Sharma's are subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (Title VII and ADEA retaliation 475 claims); Czekalski v. -12- Peters, F.3d 360, 363 (D.C. Cir. 2007) (Title Dist. of Columbia, 722 VII discrimination F.3d 345, 353 claims); (D.C. Cir. Payne 2013) v. (DCWPA claim) . Under this framework, "a plaintiff must prima facie case of retaliation 557 F.3d at 677. discrimination, belongs to a To applicants; [or she] establish [protected class]; (iii) was that, establish a [or discrimination] [.]" the plaintiff must and was qualified for a first a prima facie "(i) that he show: (ii) that he Jones, case [or she] of [or she] applied job for which the employer was seeking despite his rejected; and [or her] (iv) that, qualifications, after his [or he her] rejection, the position remained open and the employer continued to applicants seek qualifications." 1150 (D.C. 802) . To Teneyck v. Cir. 2004) establish plaintiff must statutorily from a prima 872, McDonnell facie that activity; case "(1) (2) adverse employment action; between the two." ·of and Carter v. 878 the of or] 411 U.S. retaliation, she at the engaged in a she suffered an there is a causal connection George Washington Univ., 387 F.3d (D.C. Cir. 2004). "If (3) 365 F.3d 1139, Douglas, [he or] [he plaintiff's] [the Omni Shoreham Hotel, (citing demonstrate protected persons burden shifts plaintiff to the establishes employer -13- to a prima facie produce a case, the 'legitimate, nondiscriminatory reason' 677 (citation omitted). employer reason, has for its actions." such '"the burden-shifting court question: the Has reasonable jury a legitimate, non-discriminatory framework disappears,"' proceed [s] to address employee produced sufficient to find discriminatory reason was that not the the employer's actual employee on [an invidious basis] ? '" 308 (D.C. Cir. 2011) (citing Sergeant at Arms, 520 F. 3d 490, summary for judgment the 494 employer evidence and for a asserted non- reason and that Brady v. (D.C. Cir. be the against the Talavera v. Shah, must id., 'one central employer intentionally discriminated [or retaliated] 303, 557 F.3d at At the summary judgment stage, once the presented "the district Jones, Office 2008)) denied. 638 F.3d of the If so, Aka v. Washington Hasp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998). B. Plaintiff's Motion Sharma seeks summary judgment on seven Title VII and ADEA claims arising out of his failure to be selected for specific supervisory and directorship positions. 3 3 He argues that he has These positions were as follows: (1) Supervisory Contract Specialist, MS-1102-14, under Posting No. 2037, to which Sharma applied on November 1, 2005; (2) Supervisory Contract Specialist, OCP, MS-14, under Posting No. 5647, to which Sharma applied on February 12, 2007; (3) Supervisory Contract Specialist, MS-14, in OCP's "OCTO contracting group," under Posting No. 5677, to which Sharma applied on February 12, 2007; (4) Assistant Director, Procurement (OCP), MS 1101-16, under -14- made out a prima facie case of discrimination and retaliation by demonstrating that he was qualified and applied for each position but was ultimately rejected in favor of less qualified, younger individuals who were not Asian or whistleblowers. Mot. at 30-32. He contends that the District has Pl. Is failed to rebut this evidence with "a so-called legitimate reason" for not selecting him. The Id. at 26, 34. District has, however, presented several legitimate non-discriminatory and non-retaliatory reasons for not selecting Sharma. Hester, who was the selecting official for at least two of Supervisory the testified, that, Contract "despite Specialist [Sharma's] positions technical at issue, expertise, I didn't feel that his interaction with the customers was what I wanted it to be" because he argumentative and difficult." "[t]ended to be Pl.'s Mot. Ex. 10 combative and (Hester tr. I) at 103 [Dkt. No. 96-13]. Hester instead of also Sharma explained to fill that one of she the selected positions Karen Wooden because she Posting No. 8610, to which Sharma applied on December 12, 2007; (5) Assistant Director, Construction Contracting, MS-16, OCP, under Posting 9937, to which Sharma applied on April 2, 2008; (6) Supervisory Contract Specialist (Construction), MS-14, under Posting 12320, to which Sharma applied on December 12, 2008; and (7) Supervisory Contract Specialist (Construction), MS-14, under Posting No. 12923, to which Sharma applied on March 29, 2009. See Pl.'s Mot. at 34-43. -15- thought Wooden was "[t]he ability to "better get along disagree with customers." selected another qualified," Id. employee, position because he had a with meaning others at 105. that [and] she had respectfully She explained that she Geoffrey Mack, to fill the "vast amount of experience," second id. at 208, and, unlike Sharma, had a non-emotional analytical approach to dealing with [customers] . [Mack] understood what I was looking for. He didn't have a problem conferring with me or, you know, turning certain issues over to me for resolution if he had a problem. In other words, he supported the manner in which I wanted to manage the office. Id. at 201. Hester also "disruptive" stated, more and "uncooperative" to him on several occasions, that generally, Sharma and that she had communicated without effect, that " [h] e needed to learn how to appropriately deal with our customers[.]" to Def.'s Opp'n II")) at 164-68 (deposition tr. was of Karen Hester Ex. ("Hester tr. [Dkt. No. 100 at ECF pp. 65-69]; see also Hester tr. I at 217-18 [Dkt. No. 96-13]. 4 Similarly, Diane Wooden, upon her promotion in 2006, who became Plaintiff's supervisor testified that, 4 although Sharma was In addition, as Sharma concedes, the fact that Hester hired him in the first place "is probative evidence against the claim that [she] harbored a general animus" against him on the basis of his age or race. Pl.'s Reply at 10. -16- "very knowledgeable," his "overall attitude and condescending ways and disruptive behavior sort of muddled his experience and knowledge." Ex. to Def.'s Opp'n (deposition tr. of Diane Wooden ("Wooden tr.")) at 35-36 [Dkt. No. 100 at ECF pp. 87-88]. Sharma's personnel records assessment of his performance. performance "poor evaluations personal also that with 2, 2007) of on February 8, 2006, job. and co-workers and See Ex. Kevin Donahue, to a Special in the District's Department of Transportation, complaining that professionalism in how Sharma he staff at the RFQ process today." 107-11]. on the manner [Dkt. No. 100 at ECF pp. 79-82]. Hester an email lack abrasive (Performance Evaluations dated June 2005 and June Furthermore, Assistant his customers prevented him from being successful Def. 's Opp' n general Both Hester and Wooden completed opining relations" this support "displayed a stunning handled disagreements Def.'s Mot. Ex. G [Dkt. Donahue went on to state that: [w] ithin the first ten minutes of the meeting today, [Sharma] threatened (in fact declared) that he was going to report the team to the IG on several occassions [sic] and called the group a zoo. Since I'm not familiar with the process, I really don't know who was right or wrong on the issues, but what I do know is that under no circumstances should the OCP representative have responded . . with such a complete disregard for processional decorum. It made it impossible to move forward until he was removed. -17- sent with No. Id. Indeed, Sharma's interpersonal such a concern to Hester that, issues appear to have been in August 2006, she issued him a formal admonition stating that "despite repeated counseling," he continued to "display disruptive and inappropriate behavior with me, your peers, accusatory, Mot. Ex. No. and OCP customers," which included "insulting, and F threatening comments (Formal Admonition, 107-10] and dated Aug. Def. 's outbursts." 25, 2006) at 1 [Dkt. Hester explained that such conduct "has resulted in poor customer relations, procurement actions, Construction, lack of timely progress on critical and disruptions Design, and in the operations of Building Renovations group the (CDBR) . " Id. Finally, Wilbur Giles, OCP's Chief of Staff and one of the hiring officials testified that, for in several his of opinion, the Sharma positions was only at a issue, "mediocre performer" because he thought himself superior to everyone else, "portrayed understand an the imbalanced type of thought process [,]" leadership organization was looking for." and potential Def.'s Mot. Ex. E tr. of Wilbur Giles ("Giles tr.")) at 152, 219, 220. -18- "failed that to the (deposition Sharma argues that this evidence is insufficient to survive summary judgment relevant missing because personnel records records support Mot. at 32-34. the his District's warrants claims failure an of to inference retain that the Pl. Is discrimination. Such an inference, however, is merely a relevant consideration for the trier of fact; entry of summary judgment where, it does not warrant as here, the there is admissible evidence that the employer had a legitimate, non-discriminatory basis for its actions. 638 F.3d at 311-12 See, e.g., Talavera, (reversing summary judgment because permissive adverse inference resulting from record destruction created genuine fact Gerlich v. U.S. Cir. 2013) Dep't of Justice, 711 F.3d 161, issue); 170-73 (D.C. (same) Sharma also contends that summary judgment must be granted because the witness who testified for the District pursuant to Fed. R. Civ. P. 30(b) (6) did not know the specific reason he was not selected for each of the seven positions at issue. He fails to cite a single case, however, holding Reply at 3-4. that an employer's reason for its testimony as Pl. Is evidence of a actions must be in the opposed to other legitimate competent -19- nondiscriminatory form of Rule evidence 30 (b) (6) produced in discovery. 5 person Nor must selected [Sharma]." [in St. [it] which each Peter v. (D.C. Cir. 1981) that case] was better Sec'y of Army, 659 "that the qualified than F.2d 1133, 1138 Instead, it must merely "bring forth evidence acted on a the the District produce evidence District neutral has basis,,, done id. (citation omitted), evidence with of Sharma,s argumentative, antagonistic style and interpersonal issues. In sum, the District has presented more than sufficient evidence for a jury to conclude that Sharma was not selected for the positions at issue because of his combative and abrasive communication style and general inability to work with others, rather adverse retain than his race, inference relevant age, arising documentary or out "whistleblower" of the evidence status. District,s is merely failure Any to an additional consideration to be submitted to the trier of fact. Sharma,s Motion for Partial Summary Judgment shall, therefore, be denied. c. The District of Columbia's Motion The District has also moved for summary judgment on each of Sharma,s claims. It advances 5 two arguments: first, that The cases on which Sharma relies concern, almost exclusively, discovery sanctions under Fed. R. Civ. P. 37. These cases are inapposite because Sharma has not moved under Rule 37 to preclude the testimony of Hester, Wooden, or Giles or to bar introduction of the personnel records memorializing their complaints about his interpersonal issues. -20- Sharma's DCWPA claim is time-barred, and second, that his claims of discrimination and evidence in the record. retaliation are not supported by the The Court considers these arguments in turn. 1. The Plaintiff's Claim under the DCWPA DCWPA, supervisor personnel D.C. shall not action or Code take, § or otherwise 1-615.51, threaten provides to retaliate take, that a against "[a] prohibited an employee because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order." § 1-615.53. DCWPA must D. C. Code Employees seeking to enforce their rights under the file their case "within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, 615.54 (a) (2). whichever occurs first." D.C. Code § 1- As the Court has previously observed, "[t]here is no dispute that the one year statute of limitations applies to this case[.]" Sharma I, 791 F. Supp. 2d at 214. Sharma's DCWPA claim is based on his separation under the RIF, which went into effect on June 19, at 28. 2009. He filed this case on June 18, 2010. See P1 . ' s Opp' n Therefore, if his claim accrued on the date his separation went into effect, as he argues, the claim is timely, having been filed on the last day -21- of the limitations period. If, however, the claim accrued any time before that, as the District argues, it is time-barred. As the Court held in Sharma I, a DCWPA claim accrues when the employee learns "'of the discriminatory act, consequences of Supp. 214 2d at American the Dental Consequently, "'final, act become (emphasis Ass'n, the 789 unequivocal, and A.2d 1248, is definite' [when] I, the 791 F. (quoting Stephenson v. question relevant Sharma painful . ' " in original) not (D.C. 2002)). Sharma obtained 1250 when notice" of the District's purportedly retaliatory act even if "the effective date" of the retaliatory College v. decision Ricks, occurred 449 U.S. Smith, LLP, 990 A.2d 455, 465 Id. later. 250, 259 (citing (1980); Del. State Cesarano v. Reed (D.C. 2010)). The District argues that the RIF notice gave Sharma "final, unequivocal, therefore that and his definite notice" DCWPA claim accrued 2009, when he received the notice. 6 of his no separation, later than May and 29, Def.'s Mot. at 9-11. 6 Sharma initially stated in his TAC that he received the RIF notice "on or about May 29, 2009." TAC ~ 340. He has now submitted an affidavit declaring that, although he first saw the notice on May 29, 2009, he refused to sign for it without a union steward present and, therefore, did not read it until June 3, 2009. See Pl.'s Opp'n Ex. 72 (Affidavit of Ramesh Sharma ("Sharma Aff.")) ~ 3. Whether Sharma first had notice of his impending separation on May 29 or June 3 is immaterial to the timeliness of his claim because he did not file this case until June 18, 2010 - more than a year after both dates. -22- Sharma counters that the RIF notice did not provide final and unequivocal notice of his claim obtained another position in the D.C. became final . " Pl. 's Opp' n retaliatory act was the applied such RIF (which separation not in reemploy him in a at the His is have the that the separation under CDBR group) , with new position. "could theory impending entire conjunction he Government before his RIF 3 0. merely his to because Agency's Specifically, but rather failure to he alleges that the District "moved other similarly situated employees from the abolished CDBR group to positions refused to move him. TAC ~ 390. RIF notice was and unequivocal final his position in the CDBR group, in other groups" Under this view, as to the but even if the elimination of his claim did not accrue until he learned that he was to be treated differently than other CDBR employees subject to the RIF (i.e., not reassigned to or accrue until he reemployed in a new position) . However, learned the even if, District Sharma's was claim did not treating him differently from other CDBR employees by refusing to reassign him to a new position, is undisputed that he knew as much by June 11, date, he forwarded a memorandum to the 2009. offices of it On that the D.C. Inspector General and the D.C. Government Auditor titled "Formal Complaint of Outrageous Behavior and Illegal Retaliation -23- Leading to My job Loss for Whistleblowing, PROTECTION [.]II See Def.'s (emphasis in original) . complained, Reply Ex. etc. A - [Dkt. REQUEST FOR No. 113-1] In this memorandum, Sharma specifically not only that his position was being cut under the RIF, but also that he had been "illegally FORCED-OUT/RIF'ed with a severe and adverse impact on of [sic] only SINGLE employee in the group . losing my job as the . all because of my trying See Def.'s Reply Ex. to do an 'HONEST' job for the Government." A [Dkt. "OCP+OPM No. 113-1] refuses (emphasis added). [sic] to consider status for many vacancies for which I but HIGHLY qualified." Id. He me stated further under am, not 11, 2009, Sharma knew or believed that: than other 'Priority/RIP' just minimally, (emphasis added) This evidence removes any doubt that, differently that employees in no later than June (1) he was being treated the CDBR group, (2) the District was refusing to reassign him to other vacancies as it had with other members of his group, and (3) to 7 his final separation from the the RIF would lead District's employment. 7 Sharma has submitted an affidavit stating that until "late June or early July" 2009, he did not completely understand the RIF's effects on other CDBR employees and did not "fully realize" that he had been discriminated against. Pl.'s Opp' n Ex. 72 (Sharma Aff.) ' ' 14-16. But the date on which Sharma "fully realize[d]" he was a victim of discrimination is not important. See e.g. , Fortune v. Holder, 767 F. Supp. 2d 116, 122 (D.D.C. 2011) ("Notice or knowledge of discriminatory motivation is not a -24- Consequently, even if the Court were to apply the accrual theory urged by Sharma, accrued, this there at the latest, case until June is no genuine by June 11, 18, 2010, dispute 2009. more that his claim Sharma did not file than one year later. Therefore, his DCWPA claim is time-barred and Defendant's Motion for Summary Judgment on Count 1 shall be granted. 2. Plaintiff's Claims Under Title VII and the ADEA The District next granted in its because Sharma favor "can argues on that Sharma's present no summary judgment Title evidence [non-discriminatory, legitimate] were pretextual[.]" Def.'s Mot. at 20-21. 8 VII that and the should be ADEA claims District's reasons for the non- selections Sharma has, however, prerequisite for a cause of action to accrue.") (citation and punctuation omitted) . What is important is the date Sharma knew the District was "refus [ing] to consider [him for reassignment] under 'Priority/RIF' status," which the undisputed evidence shows to be no later than June 11, 2009. 8 The District also contends that Sharma has not made out a prima facie case. Def. 's Mot. at 11-16. Our Court of Appeals has consistently held that where, as here, an employer has asserted a legitimate, non-discriminatory reason for the adverse employment decision, "the district court need not - and should not decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas" but rather should focus on whether the employee has "produced sufficient evidence for a reasonable jury to find that the employer intentionally discriminated [or retaliated] against the employee [.]" Brady, 520 F. 3d at 494 (emphasis in original) (citations omitted); see also Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014). Consequently, the Court does not consider whether Sharma has made out a prima facie case. -25- presented evidence from which a jury could find that the District's failure to select him for various positions, as well as its ultimate decision to terminate him in 2009, were not based on his interpersonal issues but rather on his race, and/or "whistleblower age, status. 11 First, it is undisputed that all of the positions to which Sharma applied were filled by employees who were younger than Sharma, were not of Indian or Asian descent, any complaints. See, e.g., Def.'s Resp. and had not filed to Pl.'s SOMF ~~ 22, 38, 52, 79, 85, 88, 96, 110, 114, 124, 154. Second, as to race/national origin discrimination, has submitted a sworn statement that, in January 2003, leaders [.] his at his initial interview Hester told him "she thought most people from his part of the world Bangladesh[,] were (South Asia), very lazy and like India, made poor Pakistan, and supervisors or Sharma has further sworn that, 11 tenure at harassed [a employee] out Sharma OCP, he Bangladeshi of his "observed employee] , supervisory 9 that Ms. and job [.] Hester finally 11 TAC constantly forced ~ during 12. [that This Because the TAC is verified, it serves as a sworn statement of Sharma. See Neal v. Kelly, 963 F. 2d 453, 457 (D.C. Cir. 1992) (treating verified complaint as an affidavit for purposes of summary judgment) . -26- evidence establishes a genuine factual dispute as to whether Hester,s treatment of Sharma, and in particular, her failure to select him for several supervisory positions, was motivated by a bias against South Asians. 10 Third, as to age discrimination, Sharma has submitted a sworn statement that Hester told him not to apply for one of the Supervisory Contract Specialist positions because Geoffrey Mack, who was ultimately selected to fill the position, was "younger, [and] needed a break with a permanent promotion and a salary jump than Plaintiff. 11 evidence that, ~~ There is also 1 Gragan, position in 2008, opined that 11 management and had TAC experience. "'old 111 42. I OCP s Chief Procurement Officer, Sharma was an 37 faster TAC "'too old, outdated ~ for [a supervisory] and vision, This 152. David outdated evidence is sufficient to establish a genuine factual dispute as to whether Sharma, s failure to be selected for a supervisory position was based on his age, rather than his interpersonal problems. 10 The District argues that Hester s decision to hire Sharma in the first place refutes any inference that she discriminated against him on the basis of his age or race. Def. s Opp n at 67. This circumstance, while relevant, is countered by Sharma,s direct evidence of discriminatory animus and is not, therefore, dispositive at the summary judgment stage. See, e.g., Czekalski, 475 F.3d at 368-69 (fact that supervisor hired plaintiff was "probative evidence against the claim that he harbored a general animus against,, women but was not "alone sufficient to keep th[e] case from the jury -271 1 11 ). 1 Fourth and finally, as to retaliation, Sharma has submitted evidence that Hester told him he was "filing too many complaints" and "making the Mayor's office and other big bosses very mad" which would take him "nowhere ~ TAC 96. Similarly, Geoffrey Mack, 2007, damn it he attests that, but trouble [.]" on or about "stalked [him], and yelled to him 'You Motherf*cker . you have been calling and filing all these reports with the auditors . I am calling my mother [ex-D.C. Council Member Gladys Mack] She will fire your ass[.]" In addition, has filed ~ TAC right now and . 110. former OCP Assistant Director, Giles asked him to "terminate Sharma, effective immediately[.]" Pl. Is Ex. No. 96-6] 3 affidavit stating that, in Anthony Reed, 2008, Mot. an July 16, (Affidavit of Anthony Reed October ("Reed Aff. ")) ~ 3 [Dkt. Reed explains that Giles told him to watch out for Sharma because "[h]e'll document everything you say and then use it against you." discussed Giles' ~ Id. request with Chief Gragan who told him that decision agreed regarding with numerous Giles Mr. that whistleblower Reed 4. he was Sharma's Sharma and "was "was further Procurement free continued EEO Based on all of this evidence, states that he Officer David to make [his] own employment [,]" but 'problematic' complaints[.]" due Id. to ~~ his 6-7. a jury could find that Sharma's -28- separation and non-selections were based on the numerous complaints he filed. In sum, the record is sufficient for a jury to conclude that the District's adverse actions against Sharma were based on his race, age, and/or interpersonal issues, whistleblower status rather as the District contends. than his Therefore, the District's Motion for Summary Judgment shall be denied. III. CONCLUSION For the reasons set forth above, Plaintiff's Motion for Partial Summary Judgment shall be denied and Defendant's Cross Motion for Summary Judgment shall be granted insofar as it pertains to Count 1 of the TAC and shall be denied insofar as it pertains to Counts 3-5 of the TAC. An Order shall accompany this Memorandum Opinion. August 25, 2014 United States District Judge Copies to: attorneys on record via ECF -29-
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