TABORN v. WMATA et al
MEMORANDUM AND OPINION re: 14 Defendant's Motion for Summary Judgment. Signed by Judge Amit P. Mehta on 09/19/2016. (lcapm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil No. 14-cv-001378 (APM)
Washington Metropolitan Area
Plaintiff Gregory Taborn filed this lawsuit under Title VII of the Civil Rights Act of 1964
against his former employer, Defendant Washington Metropolitan Area Transit Authority
(“WMATA”). This case stems from an incident that occurred on October 5, 2013, when Plaintiff,
a bus operator, became involved in a verbal altercation with a number of WMATA managers and
supervisors over his apparent failure to turn on the interior lights of his assigned bus. Defendant
argues that Plaintiff was terminated as a result of his conduct during that altercation, which violated
a number of workplace rules. Plaintiff, on the other hand, contends that he was fired for an entirely
different reason: because months earlier, he had filed a complaint with the Equal Employment
Opportunity Commission alleging that WMATA had not promoted him because of his age, race,
The court now considers Defendant’s Motion for Summary Judgment. Having reviewed
the parties’ briefing and the evidence, the court finds that no reasonable jury could conclude that
WMATA unlawfully retaliated against Plaintiff. Plaintiff has produced no evidence showing that
the official who fired him actually knew about his prior complaint; therefore, she could not have
retaliated against him. The court therefore grants Defendant’s Motion for Summary Judgment.
Plaintiff Gregory Taborn began working as a bus operator for WMATA in December 1994.
Def.’s Mot. for Summ. J., ECF No. 14 [hereinafter Def.’s Mot.]; Def.’s Stmt. of Material Facts,
ECF No. 14 [hereinafter Def.’s Stmt.], ¶ 1; Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 15
[hereinafter Pl.’s Opp’n]; Pl.’s Stmt. of Material Facts in Dispute, ECF No. 15 [hereinafter Pl.’s
Stmt.], ¶ 1. On July 30, 2013, Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging that WMATA had failed to promote him because of his age, race,
and gender (the “July EEOC Complaint”). Def.’s Stmt. ¶ 2; Pl.’s Stmt. ¶ 2.
About two months later, on October 5, 2013, Plaintiff had a verbal confrontation with
multiple WMATA managers and supervisors. The details of the confrontation are immaterial. It
suffices to say for present purposes that the confrontation arose when WMATA employees accused
Plaintiff of failing to turn on the interior lights of the bus that he was driving. Def.’s Stmt. ¶ 4;
Pl.’s Stmt. ¶ 4.
On October 22, 2013, WMATA Acting Bus Superintendent, Jessica Pitt, terminated
Plaintiff’s employment because of the October 5th incident. Def.’s Stmt. ¶ 5; Pl.’s Stmt. ¶ 5. Pitt
determined that Plaintiff’s conduct had violated numerous workplace rules.
violations, she concluded that he had failed to “perform [his] duties as expected of a professional
bus operator”; had “compromised safety”; and had “displayed unprofessional conduct in the
presence of customers as well as managers.” Def.’s Mot., Ex. 2, Memorandum of Dismissal from
Acting Superintendent Jessica Pitt to Gregory Taborn, ECF No. 14-2 [hereinafter Memo of
Dismissal], at 7. Although Plaintiff defended himself by asserting that the antagonism and
“bullying tone” of the WMATA managers who were involved—rather than his own behavior—
had instigated the confrontation, see Pl.’s Opp’n., Ex. 4, October 9, 2013, Letter from Gregory
Taborn to Ted Harris, ECF No. 15-4 [hereinafter Taborn Letter], Pitt nevertheless dismissed him.
Memo of Dismissal at 7; Def.’s Stmt. ¶ 5; Pl.’s Stmt. ¶ 7. Two days after his termination, Plaintiff
filed a second complaint with the EEOC (the “October EEOC Complaint”), this time claiming he
was fired in retaliation for filing the July EEOC Complaint. Def.’s Stmt. ¶ 8; Pl.’s Stmt. ¶ 7.
At some point, Plaintiff filed a grievance with his union representative, which resulted in
an arbitration proceeding. Pl.’s Stmt. ¶ 11; see also Pl.’s Opp’n, Ex. 2, June 12, 2015 Opinion by
Arbitrator Andrew M. Strongin, ECF No. 15-2 [hereinafter Arbitration Opinion]. The Arbitrator
concluded that Plaintiff’s behavior constituted “serious insubordination” and was “unacceptable.”
Arbitration Opinion at 15. He also found, however, that the WMATA managers involved in the
incident had “instigated and [had] provoked” Plaintiff and had themselves failed to follow certain
WMATA policies. Id. at 18. As a result, the Arbitrator reduced Plaintiff’s discipline from
termination to a 30-day suspension without pay. Id. at 20. Nevertheless, Plaintiff has yet to return
to work at WMATA. Pl.’s Stmt. ¶ 13.
On May 23, 2014, Plaintiff filed a pro se complaint in D.C. Superior Court. See Compl.,
ECF No. 1-4. The Complaint alleged a single claim: that Plaintiff “was terminated because he
engaged in protected activity when he filed an EEOC Complaint alleging age, gender, color and
race discrimination on July 30.” Pl.’s Opp’n at 5. Defendant then removed the case to this court
on August 13, 2014. See Notice of Removal, ECF No. 1.
Federal Rule of Civil Procedure 56 provides that a court should grant summary judgment
if “there is no genuine dispute as to any material fact and [the moving party] is entitled to judgment
as a matter of law.” Fed. R. Civ. Pro. 56(a)). A material fact is one that is capable of affecting the
outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, [ ] on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary
judgment “bears the initial responsibility of informing the district court of the basis for its motion”
and identifying those portions of the record that it believes “demonstrate the absence of a genuine
issue of material fact.” Id. at 323.
Once the moving party has made an adequate showing that a fact cannot be disputed, the
burden shifts to the party opposing summary judgment to “set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (citation and internal quotation marks
omitted) (footnote omitted). The nonmoving party may oppose the motion using “any of the kinds
of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from
this list that one would normally expect the nonmoving party to make the showing to which [the
Court has] referred.” Celotex Corp., 477 U.S. at 324. “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255
(citation omitted). However, “to defeat a motion for summary judgment, the non-moving party
must offer more than mere unsupported allegations or denials.” Dormu v. District of Columbia,
795 F. Supp. 2d 7, 17 (D.D.C. 2011) (citing Celotex, 477 U.S. at 324). In other words, if the non-
movant’s evidence is “merely colorable” or “not significantly probative,” summary judgment may
be granted. Anderson, 477 U.S. at 249-50. Summary judgment, then, is appropriate when the nonmoving party fails to offer “evidence on which the jury could reasonably find for the [nonmovant].” Id. at 252.
Plaintiff claims that Defendant’s decision to terminate him constituted unlawful retaliation
in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a). Title VII prohibits
employers from retaliating against an employee “because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a). To show unlawful retaliation under Title VII, “a plaintiff
must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took
a materially adverse action against him; and (3) that the employer took the action ‘because’ the
employee opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). Once
an employer comes forward with a legitimate, non-retaliatory reason for the challenged
employment action, as Defendant has done here, the court must decide whether or not the
employee has proven intentional discrimination or retaliation. Morris v. McCarthy, 825 F.3d 658,
668 (D.C. Cir. 2016) (citations omitted). A plaintiff can survive summary judgment “by providing
enough evidence for a reasonable jury to find that the employer’s proffered explanation was a
pretext for retaliation or discrimination.” Id. (citing Hamilton v. Geithner, 666 F.3d 1344, 1351
(D.C. Cir. 2012)).
Plaintiff’s retaliation claim fails for a simple reason: he has not offered any evidence from
which a reasonable juror could infer that either Jessica Pitt—the person who fired him—or any
other WMATA supervisor involved in the October 5th altercation had knowledge of his protected
activity. Morris, 825 F.3d at 673 (“To establish . . . [a] retaliation claim, an employee must have
engaged in protected participation or opposition activity about which the employer knew.”), citing
Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009) (“We agree that Jones’s supervisors could
not have retaliated against him unless they had knowledge of his protected activity.”). Plaintiff
admitted as much during his deposition. When asked how he knew that his supervisors were aware
of his July EEOC Complaint, Plaintiff answered that “[t]here [were] people telling me ‘I heard you
did this’” and he further pointed to “the overall treatment” at his workplace. Def.’s Mot., Ex. 1,
Deposition of Gregory Taborn, ECF No. 14-1 [hereinafter Taborn Dep.] at 107. Yet when asked
if any of his supervisors mentioned that they were upset or were going to do something to him
because he had filed the July EEOC Complaint, he responded “[t]hey didn’t mention it, no.” Id.
at 108. Notably, in a letter written to a different supervisor just days after the October 5th incident,
Plaintiff did not mention his July EEOC Complaint or that the WMATA employees with whom
he argued were aware of his complaint. See Taborn Letter. In short, Plaintiff has not come forward
with any evidence—such as his own affidavit or deposition testimony from Pitt—establishing that
Pitt or any other WMATA supervisor involved in the altercation was aware of his initial EEOC
The evidence that Plaintiff’s supervisors knew about his protected activity consists of one
vague allegation by Plaintiff that unnamed people at his workplace told him at an unspecified time
that they were aware of his EEOC filing. There is no evidence whatsoever that Pitt was aware of
Plaintiff’s July EEOC Complaint. Plaintiff has not offered nearly enough evidence to allow a
reasonable jury to infer that Plaintiff was fired because of his protected activity. See McGrath,
666 F.3d at 1380.
Plaintiff argues that the temporal proximity—about three months—between his July EEOC
Complaint and his termination is enough to infer retaliation and allow his action to survive
summary judgment. Pl.’s Opp’n at 7-8. On this point, Plaintiff is wrong. The case law in this
circuit is clear that absent additional evidence, the fact that a few months passed between the
protected activity and the adverse employment action is insufficient to allow a complaint to survive
summary judgment. See Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (finding that the
passage of two and a half months between the protected activity and the adverse action was
insufficient to support retaliation based on temporal proximity alone); see also Woodruff v. Peters,
482 F.3d 521, 530 (D.C. Cir. 2007) (“[P]ositive evidence beyond mere proximity is required to
defeat the presumption that the proffered explanations are genuine.”). In any event, the temporal
proximity between Plaintiff’s protected activity and his firing cannot cure his failure, discussed
above, to demonstrate that Pitt, or anyone else involved in the October 5 altercation, knew that he
had filed the July EEOC complaint.
Finally, to the extent that Plaintiff argues that Arbitrator’s findings enable him to defeat
summary judgment, see Pl.’s Opp’n at 5, he is incorrect. The Arbitrator’s lengthy opinion absolved
Plaintiff of some workplace rules violations and reduced his discipline from termination to a 30day suspension without pay. See Arbitration Opinion. It did not, however, address the issue before
the court— whether Defendant retaliated against Plaintiff for filing a complaint with the EEOC.
Id. The Arbitrator made no finding that Pitt, or any other WMATA supervisor, was aware of his
protected Title VII activity. Thus, the Arbitrator’s ruling provides no evidence from which a
reasonable juror could infer that Defendant’s legitimate, non-discriminatory reason for terminating
Plaintiff was pretext for retaliation.
For the foregoing reasons, the court grants Defendant’s Motion for Summary Judgment.
A separate order accompanies this Memorandum Opinion.
Dated: September 19, 2016
Amit P. Mehta
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?