COOPER v. HENDERSON et al
MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 9/29/2017. (lcegs3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DISTRICT OF COLUMBIA,
) Civil Action No. 14-1526 (EGS)
Plaintiff Melissa Cooper (“Ms. Cooper”) brings this action
against the defendant District of Columbia (“District”) after
she was terminated from her position as a Special Education
Teacher in the District of Columbia Public School (“DCPS”)
system. Pending before the Court is the District’s motion for
summary judgment on her two remaining claims: 1 (1) retaliation in
violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq.; Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq.; and (2) retaliation for protected activity under the
Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.
1 Ms. Cooper’s claims for discrimination and failure to accommodate on the
basis of disability, race, gender, and age were dismissed. Cooper v.
Henderson, 174 F. Supp. 3d 193, 202, 205 (D.D.C. 2016).
Court has carefully considered the motion, the response and
reply thereto, the applicable law, and the entire record herein.
The Court finds that there is no genuine dispute as to any
material fact, and thus, for the reasons stated below, the
District’s motion for summary judgment is GRANTED.
Federal Rule of Civil Procedure 56(e), Local Rule
7(h), and Ms. Cooper’s Pleading Defects
When a party moves for summary judgment, it must accompany
its motion with a statement of material facts as to which it
contends there is no genuine issue. LCvR 7(h)(1). The movant
must reference the specific parts of the record relied on in
support of the assertions of fact in the statement. Id. In turn,
the non-movant's opposition brief must be accompanied by a
concise statement of genuine issues setting forth all material
facts as to which it contends a genuine issue exists. Id. That
statement of genuine issues also must include specific
references to the evidentiary record. Id. But if a party “fails
to properly address another party's assertion of fact . . . the
court may . . . consider th[at] fact undisputed for purposes of
the motion.” Fed. R. Civ. P. 56(e). That is, a court “may assume
that facts identified by the moving party in its statement of
material facts are admitted, unless such a fact is controverted
in the statement of genuine issues filed in opposition to the
motion.” LCvR 7(h)(1). However, a material fact in the movant’s
statement is not “controverted” if a non-movant supplies
additional facts and “factual context” but does not actually
dispute the movant's asserted fact. Toomer v. Mattis, No. 112216, 2017 WL 3084376 at *2 (D.D.C. July 19, 2017) (citing
Gibson v. Office of the Architect of the Capitol, No. 00-2424,
2002 WL 32713321, at *1 n.1 (D.D.C. Nov. 19, 2002)).
The District contends, with citations to the record, that
there are nine facts as to which there is no genuine issue. Def.
Stmt., ECF No. 48 at 3-4. In response, Ms. Cooper contends that
twenty-nine facts are in dispute. Pl. Stmt., ECF No. 51-2. 2 Of
these, only one is supported by citation to the record. Id. at ¶
2. Thirteen are irrelevant because they relate to a claim that
was dismissed. Id. at ¶¶ 4-17; see Cooper v. Henderson, 174 F.
Supp. 3d 193, 202-03 (D.D.C. 2016)(dismissing Ms. Cooper’s
claims for failure to accommodate). The remaining statements of
fact either cite to an affidavit that was not filed on the
docket 3 or are unsupported.
Therefore, the Court draws from facts submitted by the
District which went undisputed or were inadequately disputed by
2 Ms. Cooper’s Statement of Disputed Facts is not numbered sequentially, but
the Court will cite each fact as if it had been numbered sequentially.
3 Ms. Cooper has been on notice of the omitted affidavit since the District
filed its reply motion on March 27, 2017. See Def. Reply, ECF No. 52. Ms.
Cooper did not seek leave to file the missing affidavit. See generally Docket
for Civil Action No. 14-1526.
Ms. Cooper, Ms. Cooper’s asserted facts where they are relevant
and supported by record evidence, as well as the factual record.
See Dage v. Johnson, 537 F. Supp. 2d 43, 52-54 (D.D.C. 2008)
(finding no error when the Court assumed the movant’s material
facts were admitted because the non-movant’s statements “did not
cite to record evidence”)(internal quotations omitted).
Ms. Cooper was employed by DCPS as a Special Education
Teacher for over thirty years, from 1980 to 2012. Def. Mot., ECF
No. 48 at ¶¶ 1-2. On August 10, 2012, Ms. Cooper was terminated
from her position at Roosevelt Senior High School. Termination
Notice, ECF. No. 48-1. She is now retired.
Ms. Cooper’s problems with her school’s Principal and
Assistant Principal began in the 2010-2011 school year and
continued until her 2012 termination. See generally Pl.
Interrog., ECF. No. 48-8. Starting in 2010, she had various
disputes with administrators regarding perceived unfair
treatment. Id. at 2-9. In the 2010-2011 school year, from April
4, 2011 until June 10, 2011, 4 Ms. Cooper took FMLA medical leave
due to stress. Pl. Dep., ECF No. 48-9 at 13:16-22. That same
school year, Ms. Cooper received a “minimally effective” rating
pursuant to DCPS’ “Effectiveness Assessment System for School-
4 In Ms. Cooper’s interrogatory response, she indicated that she was on leave
from April 4, 2011 to May 31, 2011. Pl. Interrog., ECF No. 48-8 at 6. This
date discrepancy does not affect the analysis.
Based Personnel.” 2010-2011 Assessment, ECF No. 48-2. Her
difficulties with school administration continued into the 20112012 school year. Ms. Cooper took a second FMLA medical leave of
absence to undergo Achilles tendon surgery from December 1, 2011
through January 10, 2012. Pl. Dep., ECF No. 48-9 at 52:1-6,
59:14-22. That year, Ms. Cooper again received a “minimally
effective” rating. 2011-2012 Assessment, ECF No. 48-3.
On August 10, 2012, Ms. Cooper was terminated subject to
DCPS procedure, which subjects employees receiving a minimally
effective rating for two consecutive years to removal.
Termination Notice, ECF No. 48-1. At some point after she was
terminated, Ms. Cooper challenged the decision with the Office
of Employee Appeals (“OEA”). OEA Appeal, ECF No. 51-5. While it
is unclear when the OEA case was officially resolved, the OEA
Administrative Judge memorialized in a June 23, 2014 Order that
Ms. Cooper and DCPS indicated they were settling the dispute
through retirement. Id.
Ms. Cooper also filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) on December 20,
2013, alleging that she had been subjected to race, age, and
disability discrimination; was subjected to retaliation for
protected activity; and endured a hostile work environment. EEOC
Charge, ECF No. 48-5. The EEOC rejected her claim on May 30,
2014 and sent notice advising Ms. Cooper of her right to sue the
District within 90 days of receipt. EEOC Dismissal, ECF Nos. 513, 48-6. The notice was stamped for mailing on June 4, 2014. Id.
Ms. Cooper filed her claim in this Court on September 9, 2014.
Ms. Cooper is now retired. She first approached DCPS to
determine when she would be eligible for retirement in April
2011 and was told to return for a retirement calculation in the
next school year. Pl. Dep., ECF No. 48-9 at 84:2-10. In November
2011, she requested and received a retirement computation, or an
analysis of when an employee is eligible to retire, and learned
that she was eligible for retirement in November 2012. Id. at
84:11-18. In July or August 2012, 5 Ms. Cooper submitted another
computation form to calculate her future retirement benefits.
Id. at 84:19-85:22; Computation Form, ECF No. 51-4. At some
point, Ms. Cooper was informed by an unnamed DCPS attorney that
she could not receive retirement benefits because she had been
terminated. Pl. Dep., ECF No. 48-9 at 88:9-15. On June 26, 2014,
Ms. Cooper submitted a final application for retirement. Pl.
Opp’n, ECF No. 51 at 12-13; Pl. Dep., ECF No. 48-9 at 86:2-4.
Her retirement paperwork was processed and she began receiving
benefits in August 2014. Pl. Dep., ECF No. 48-9 at 91:19-21.
Cooper testified that she submitted the computation form on July 31,
Pl. Dep., ECF No. 48-9 at 84:19-85:1, but the form itself is dated
32, 2012” and Ms. Cooper dated it signed on August 1, 2012. Computation
ECF No. 51-4.
III. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). The moving party must identify “those portions
of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). To defeat summary
judgment, the nonmoving party must demonstrate that there is a
genuine issue of material fact. Id. at 324. A material fact is
one that is capable of affecting the outcome of the litigation,
while a genuine dispute is one where “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Further, in the summary judgment analysis “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at
255. However, rule 56(e) requires the nonmoving party to go
beyond the pleadings to demonstrate that there is a genuine
issue for trial. Celotex, 477 U.S. 317 at 324.
A. Ms. Cooper Failed to Establish a Retaliation Claim Under
the ADA, ADEA, and Title VII
Ms. Cooper’s Claim is Time-Barred
The District first argues that it is entitled to judgment
on Ms. Cooper’s ADA, Title VII, and ADEA claim because her
complaint was not filed within ninety days of receiving the EEOC
right-to-sue notice and therefore the claim is time-barred. Def.
Mot., ECF No. 48 at 1. “If a charge filed with the Commission .
. . is dismissed by the Commission . . . the Commission . . .
shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought
against the respondent named in the charge.” 42 U.S.C. § 2000e–
5(f)(1). “No matter how slight the tardiness, a court is not at
liberty to disregard the 90–day deadline out of a vague sympathy
for any particular plaintiff.” Mack v. WP Company, 923 F. Supp.
2d 294, 301 (D.D.C. 2013)(quoting Turner v. Afro–American
Newspaper Co., 572 F. Supp. 2d 71, 73 (D.D.C. 2008) (finding the
plaintiff, who filed one day late, time-barred); citing Smith v.
Dalton, 971 F. Supp. 1, 2–3 (D.D.C. 1997) (finding the
plaintiff, who filed one day late, time-barred)). It is “wellsettled” that the ninety-day, statutory time limit for filing a
claim is “subject to waiver, estoppel, and equitable tolling.”
Smith v. Holder, 806 F. Supp. 2d 59, 62-63 (D.D.C.
2011)(citations omitted). Application of equitable tolling is
“solely within the Court’s discretion,” however it is “only
exercise[d] . . . in a limited number of ‘extraordinary and
carefully circumscribed instances.’” Id. at 63 (quoting Mondy v.
Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). To
benefit from equitable tolling, the plaintiff must “plead and
provide that the delay in meeting the 90-day limit was ‘more
than a garden variety claim of excusable neglect.’” Turner, 572
F. Supp. 2d at 73 (quoting Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990)).
If the date of receipt is unknown for purposes of the
ninety-day calculation, “courts routinely presume that the
notice was received either three days or five days after it was
mailed.” Mack, 923 F. Supp. 2d at 299 (internal citations
omitted). That presumption, however, may be rebutted by contrary
evidence. Greer v. Board of Trustees of the University of the
District of Columbia, 113 F. Supp. 3d 297, 306 (D.D.C. 2015).
“For the purposes of computing the ninety-day period within
which the suit must be filed, the court begins counting the day
after the right-to-sue letter was received.” Akridge v.
Gallaudet University, 729 F. Supp. 2d 172, 178 (D.D.C. 2010)
(citing Fed. R. Civ. P. 6(a)(1)). The date of filing is
established by the official docket. Smith, 971 F. Supp. at 3.
The envelope in which the EEOC’s right-to-sue notice was
mailed is stamped as “mailed from zip code 39269” on June 4,
2014. See EEOC Dismissal, ECF No. 51-3; Envelope, 48-7. “[A]
private postage meter stamp may provide some evidence of the
date of mailing.” White v. Dietrich Industries, 554 F. Supp. 2d
684, 691-92 (E.D. Tex. 2006). Therefore, applying the “more
generous” five-day presumption, the Court presumes Ms. Cooper
received notice on June 9, 2014 unless Ms. Cooper is able to put
forward rebuttal evidence. Mack, 923 F. Supp. 2d at 299. The
District’s copy of the notice is stamped as having been received
on June 9, 2014 at 9:33 a.m. EEOC Dismissal and DCPS Aff., ECF
No. 48-6. This Court determined that Ms. Cooper was entitled to
discovery as to the date she received the EEOC notice, affording
her the opportunity to rebut the three to five day presumption.
Cooper, 174 F. Supp. 3d at 205. She has not done so.
Ms. Cooper fails to present any record evidence to support
her rebuttal. She speculates that the stamp date is inconclusive
as it only “indicates that the [right-to-sue] was still at the
EEOC on that date. Therefore, we really don’t know when the
[right-to-sue] was actually mailed.” Pl. Opp’n, ECF No. 51 at 8.
Ms. Cooper also suggests that she received notice on two
different dates. First, she says “the May 30, 2014 letter was
stamped on June 4, 2014. I believe that I received it about
seven days after that.” Pl. Interrog., ECF No. 48-8 at 10.
Later, she asserts that she received the right-to-sue notice “on
or about June 10, 2017.” 6 Pl. Stmt., ECF No. 51-2 at ¶ 2. In
support, Ms. Cooper cites to the missing affidavit.
Because Ms. Cooper has the burden to rebut the five day
receipt presumption and because she has offered no evidence
beyond her own speculations and conclusory allegations, the
Court will presume that she received the right-to-sue notice on
June 9, 2014. Therefore, she was required to file her claim by
September 8, 2014. However, the electronic docket shows that the
complaint was uploaded at 12:14 am on September 9, 2014. See
Notice of Electronic Filing, Civ. No 14-cv-1526, ECF No. 1. In
fact, Ms. Cooper all but concedes that she missed the deadline.
She repeatedly states that she “filed her initial Complaint on
September 9, 2014.” See Pl. Opp’n, ECF No. 51 at 2, 3, 7, 8, 9.
Although the Court could exercise its discretion and toll
the filing period, Ms. Cooper has given the Court no basis upon
which to do so. In Smith, the Court exercised equitable tolling
because the plaintiff demonstrated “good faith and due
diligence” by hiring a messenger, who did not timely file the
claim because he misunderstood the Clerk Office’s instructions.
806 F. 3d at 63-64; see also Koch v. Donaldson, 260 F. Supp. 2d
86, 90-91 (D.D.C. 2003)(determining that plaintiff, who filed
The Court assumes Ms. Cooper intended to write June 10, 2014, not 2017.
one day late, demonstrated sufficient diligence by making
numerous attempts to file within the filing period, all of which
failed due to “technical problems beyond his control”). Not
here. As discussed above, Ms. Cooper does not offer any reason
for her tardiness and thus, the Court sees no reason to exercise
its “extraordinary” discretion. Turner, 572 F. Supp. 2d at 73-74
(declining to exercise equitable tolling because the Plaintiff
did not “offer any reason” for her delay).
Therefore, Ms. Cooper’s retaliation claim under Title VII,
the ADEA, and the ADA is time-barred because she filed her claim
late. Although Ms. Cooper has given the Court no basis upon
which to apply the doctrine of equitable tolling, because she
missed the statutory deadline by minutes, the Court will analyze
whether Ms. Cooper established a prima facie case of
retaliation, as if she timely filed her complaint. Ms. Cooper
has failed to do so.
Ms. Cooper Cannot Establish a Prima Facie Retaliation
Claim Pursuant to Title VII, the ADEA, and the ADA
Ms. Cooper alleges that the District delayed in processing
her retirement benefits for two years in retaliation for her
complaints regarding discrimination and for seeking reasonable
disability accommodations. Pl. Am. Compl., ECF No. 25 at ¶ 28.
When, as here, a plaintiff lacks evidence of direct
discrimination, a retaliation claim under all three statutes—
Title VII, the ADEA, and the ADA—is “subject to the familiar
burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).” See Toomer, 2017 WL 3084376 at *7 (using
the same framework for resolving Title VII and ADEA retaliation
claims); see also Johnson v. District of Columbia, 207 F. Supp.
3d 3, 11 (D.D.C. 2016) (using the same framework for addressing
an ADA retaliation claim). “Under that framework, a plaintiff
must first establish a prima facie case of retaliation by
showing (1) that [she] engaged in statutorily protected
activity; (2) that [she] suffered a materially adverse action by
[her] employer; and (3) that a causal link connects the two.”
Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). To
establish causation, Ms. Cooper must demonstrate that “the
employer had knowledge of the employee’s protected activity, and
that the [retaliatory] personnel action took place shortly after
that activity.” Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000)(quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir.
1985)). In other words, “retaliation claims must be proved
according to traditional principles of but-for causation . . . .
[meaning] that the adverse action would not have occurred absent
the retaliatory motive.” Farzam v. Shell, No. 12-35, 2015 WL
8664184, at *4 (D.D.C. Dec. 11, 2015).
If a plaintiff establishes a prima facie case, the burden
shifts to the employer to articulate a legitimate, non13
retaliatory reason for its actions. Jones, 557 F.3d at 677. “If
the employer does so, the burden-shifting framework disappears,
and a court reviewing summary judgment looks to whether a
reasonable jury could infer . . . retaliation from all the
evidence . . . .” Id. (internal quotation marks and citations
omitted). Thus, the crucial issue “reduces to whether the
plaintiff has produced sufficient evidence for a reasonable jury
to find that the employer's asserted non-retaliatory reason was
not the actual reason for its adverse action and that the
employer intentionally retaliated against the plaintiff.”
Toomer, 2017 WL 3084376 at *7.
Assuming Ms. Cooper was engaged in statutorily protected
activity when she sought a “reasonable accommodation for her
disability” and “reported every action she believed to be
discriminatory” to school management, Pl. Opp’n, ECF No. 51 at
10-11, Ms. Cooper’s claim fails because she has not shown that
there is a disputed issue of material fact as to whether she
suffered an adverse employment action.
A Court “first must determine whether [a] plaintiff has
suffered an adverse employment action.” Adesalu v. Copps, 606 F.
Supp. 2d 97, 103 (D.D.C. 2009); see also Taylor v. Solis, 571
F.3d 1313, 1320 n.* (D.C. Cir. 2009) (“The court can resolve
[the question of retaliation] in favor of the employer based . .
. upon the employee's failure to prove an element of her case—
here that her employer took a materially adverse action against
her.”). “Adverse actions in the retaliation context encompass a
broader sweep of actions than those in a pure discrimination
Baloch v. Kempthorne, 550 F.3d 1191, 1198 n. 4 (D.C.
Cir. 2008)(internal quotations and citations omitted). However,
even under this “broad[ ]” meaning of “adverse action,” Ms.
Cooper must still demonstrate that “‘a reasonable employee would
have found the challenged action materially adverse.’” Id.
(quoting Burlington North & Santa Fe Railway Co. v. White, 548
U.S. 53, 68 (2006)). Put differently, the adverse action must be
capable of “dissuad[ing] a reasonable worker from making or
supporting a charge of discrimination.” Burlington, 548 U.S. at
68 (internal quotations and citations omitted).
Delaying retirement benefits for two years could be an
adverse action if it involved “financial harms,” Baloch, 550
F.3d at 1199, or “a significant change in benefits.” Burlington,
548 U.S. at 64 (internal citations omitted). To that end, Ms.
Cooper alleged—without providing any corroborating evidence—that
the intentional delay in processing her retirement benefits
caused financial harm. Pl. Stmt., ECF No. 51-2 ¶ 23 (She “could
not pay her bills and had her home placed in foreclosure”).
However, Ms. Cooper has not provided any evidence
supporting her contention that the District did actually delay
processing her retirement benefits for two years. Rather, the
undisputed facts show that Ms. Cooper did not submit her
complete application for retirement until June 26, 2014. Pl.
Dep., ECF No. 48-9 at 86:2-4. Once she applied, she received her
retirement benefits less than two months later in August 2014.
Id. at 91:19-21.
Ms. Cooper makes several arguments to explain why there was
a two-year delay attributable to the District in processing her
retirement benefits. First, she alleges, without providing any
supporting evidence, that she “formally invoked” the retirement
process in April 2011, that the District “deliberately neglected
and delayed” processing her paperwork. Pl. Opp’n, ECF No. 51 at
11-12. However, Ms. Cooper’s own testimony confirms that she did
not apply for retirement, but merely requested a retirement
computation “just to see if [she] could retire.” Pl. Dep., ECF
No. 48-9 at 84:5-10. She was asked by the retirement office
employee to return during the 2011-2012 school year for a
computation. Id. According to Ms. Cooper, when she returned to
the retirement office in November 2011, the District did in fact
provide her with a computation, advising her that she was
eligible to retire in November 2012. Id. at 84:11-18. More to
the point, it is clear that Ms. Cooper did not actually attempt
to retire in 2011. As the District’s forms make certain, a
“Request for Retirement Computation Only” form is not an
application for retirement, but merely a form to determine
retirement eligibility and future benefits. Computation Form,
ECF No. 51-4. It clearly informs employees that submitting the
form “is not considered . . . intent to retire.” Id.
Next, Ms. Cooper argues that the District delayed
processing her retirement paperwork in 2012. Pl. Opp’n and Exs.,
ECF No. 51 at 11; Pl. Interrog., ECF No. 48-8 at 10 (“I applied
for retirements [sic] on about July 2012.”). Again, Ms. Cooper
cites no support for this claim, nor is there evidence in the
record establishing that Ms. Cooper applied for retirement at
this time. See generally Pl. Opp’n, ECF No. 51. Instead, Ms.
Cooper testified that she returned to the retirement office on
July 31, 2012, stating that she was “ready to fill out [her]
paperwork for retirement.” Pl. Dep., ECF No. 48-9 at 84:19-85:7.
The retirement official, Ms. Green, told Ms. Cooper that she
“couldn’t speak with [her] right then because she had all these
other retirement applications to do” and told Ms. Cooper that
she needed to fill out a new “Request for Computation” form in
case there had been any changes over the past year. Id. at 85:319. No reasonable jury could interpret this encounter to mean
that the District was delaying processing Ms. Cooper’s
retirement paperwork in retaliation. Indeed, Ms. Cooper followed
these instructions and submitted the computation form in July or
August 2012. Computation Form, ECF. Nos. 48-10, 51-4. Moreover,
Ms. Cooper’s own testimony also contradicts her unsupported,
conclusory argument that she had applied in 2012. For example,
in her deposition, Ms. Cooper acknowledges that she understood
that submitting a computation form was not the same as applying
for retirement. See Pl. Dep., ECF No. 48-9 at 85:3-5. And she
stated that she was told by a DCPS attorney involved in her OEA
appeal that she could not apply for retirement because she had
been terminated. Pl. Dep., ECF No. 48-9 at 88:9-15. While the
date that the OEA case was resolved is not clear from the record
provided, Ms. Cooper testified that she applied on June 26, 2014
once the “final decision that came from the [OEA] judge . . .
was that I be allowed to retire with full benefits.” Id. at
Therefore, in light of her conflicting testimony and lack
of evidence to the contrary, no reasonable jury could find that
Ms. Cooper filed a retirement application in 2012: specifically,
Ms. Cooper believed that she was ineligible to do so and there
is no evidence in the record that she submitted an application
before 2014. Thus, the District could not retaliate by delaying
an application it never received. The only retirement
application in the record is Ms. Cooper’s June 26, 2014
application. Retirement Application, ECF No. 51-4; Pl. Opp’n,
ECF No. 51 at 12 (“[S]he eventually filed a completed
application form on June 26, 2014”). It is undisputed that Ms.
Cooper received her retirement benefits shortly thereafter in
August 2014. Pl. Dep., ECF No. 48-9 at 91:19-21. Because a
“court must enter summary judgment against a nonmovant ‘who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case,” Frito–Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1032 (D.C. Cir. 1988)(quoting
Celotex, 447 U.S. at 322), the District’s motion for summary
judgment on this claim 7 is GRANTED.
B. Ms. Cooper Failed to Establish an FMLA Violation, Much
Less a Willful One
It is undisputed that Ms. Cooper received a performance
evaluation score of “minimally effective” for school years 20102011 and 2011-2012 and that she was terminated for that reason.
Def. Stmt., ECF No. 48 at ¶¶ 3-5. However, Ms. Cooper contends
that her termination and the events leading up to it, including
a “ten-point deduction from her job performance,” were done in
Ms. Cooper has also not established that her protected activity caused the
adverse action, or that the District intentionally delayed processing her
paperwork as a result of her complaints. She merely concludes that there is a
“material fact question as to the existence of a causal link” between her
protected activity and any delay, as demonstrated by the “temporal proximity”
of her complaints and the “breakdown” in the retirement process. Pl. Opp’n,
ECF No. 51 at 12, 14. For the Court to accept “mere temporal proximity . . .
as sufficient evidence of causality . . . the temporal proximity must be very
close.” Clark County School District v. Breeden, 532 U.S. 268, 273–74
(2001)(internal citations and quotations omitted). But Ms. Cooper does not
identify the dates of her protected activity nor does she include the date of
the alleged “breakdown.” In searching the record, Ms. Cooper did allege that
she requested a disability accommodation in September 2011, Pl. Interrog.,
ECF No. 51-8 at 6, but her retirement computation was processed as requested
two months later. Pl. Dep., ECF No. 48-9 at 84: 11-18. Moreover, Ms. Cooper
presents no evidence to suggest that the employees who processed her
retirement knew about her protected activity. Compare with Alexander v.
Tomlinson, 507 F. Supp. 2d 2, 17-18 (D.D.C. 2007) (finding sufficient
evidence of causation because the principal actors had direct knowledge of
the employee’s protected activity and the adverse action took place shortly
retaliation for exercising her FMLA rights. Pl. Opp’n, ECF No.
51 at 2. The FMLA prohibits employers from interfering with or
denying an employee's right to take leave under the Act, and
further prohibits an employer from discharging or discriminating
against an employee who returns from leave. 29 U.S.C. §
2615(a); Dahlman v. American Association of Retired Persons, 791
F. Supp. 2d 68, 79 (D.D.C. 2011). An action under the FMLA must
be brought within two years of the alleged violation, or within
three years if the violation is alleged to have been willful. 29
U.S.C. § 2617(c); see Hodge v. United Airlines, 666 F. Supp. 2d
14, 23 (D.D.C. 2009)(citing Sampson v. Citibank, F.S.B., 53 F.
Supp. 2d 13, 19 (D.D.C. 1999)) (“The three-year statute of
limitations for willful violations does not apply unless the
complaint contains some express or implied allegation of willful
To prove retaliation under FMLA, Ms. Cooper must “show that
she engaged in a protected activity under this statute; that she
was adversely affected by an employment decision; and that the
protected activity and the adverse employment action were
causally connected.” Gleklen v. Democratic Congressional
Campaign Committee, 199 F. 3d 1365, 1368 (D.C. Cir 2000); see
also Alford v. Providence Hospital, 945 F. Supp. 2d 98, 108
(D.D.C. 2013) (“The McDonnell Douglas framework applies to
retaliation claims” under the “FMLA/DCFMLA”). However, if the
District demonstrates a “legitimate, non-discriminatory
justification” for its actions, “the prima facie case drops out
of the equation, and ‘the one central inquiry that remains is
whether a reasonable jury could infer retaliation or
discrimination from all the evidence.’” Thomas v. District of
Columbia, 197 F. Supp. 3d 100, 112 (D.D.C. 2016)(quoting
Nurriddin v. Bolden, 818 F.3d 751, 758 (D.C. Cir. 2016)). Ms.
Cooper has the burden of demonstrating that the District’s
asserted reason for her poor reviews and termination were not
“true” reasons and that the District “intentionally retaliated”
against her for exercising her FMLA rights. Miles v. Howard
University, 653 Fed. Appx. 3, *7 (D.C. Cir. June 14, 2016).
Ms. Cooper filed her complaint on September 9, 2014, more
than two years after she was she was terminated on August 20,
2012. Thus, to avoid being time-barred, she must also
demonstrate that the District’s alleged FMLA violations were
willful. To prove a willful violation, Ms. Cooper must
demonstrate that the District “knows its conduct [is] wrong or
has shown reckless disregard for the matter in light of the
statute.” Hodge, 666 F. Supp. 2d at 23 (quoting Sampson, 53 F.
Supp. 2d at 19); see also McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1988)(“The word ‘willful’ is widely used in the
law, and . . . it is generally understood to refer to conduct
that is not merely negligent.”).
Ms. Cooper exercised her rights under FMLA twice: once from
April 4, 2011 to June 10, 2011, Pl. Dep., ECF No. 48-9 at 13:1622, and a second time from December 1, 2011 to January 10, 2012,
Id. at 51:1-5, 59:14-22. Def. Mot., ECF No. 48 at 12-13 (citing
Pl. Dep., ECF No. 48-9). However, because Ms. Cooper filed her
claim in September 2014, alleged retaliatory actions before
September 2011 are time-barred, and thus she can only claim that
she endured retaliation for taking FMLA leave the second time.
29 U.S.C. § 2617(c). Ms. Cooper alleges that the retaliatory,
adverse actions taken as a result of her requesting and taking
FMLA leave include a November 2011 ten-point performance rating
deduction taken soon after she requested the December 2011 FMLA
leave, harassment related to her medical leave, “altered terms
of [her] employment,” and termination. See Pl. Opp’n, ECF No. 51
The District argues that it has met its burden to present a
legitimate reason for taking adverse action when it explained
that Ms. Cooper’s termination and negative ratings were
performance-based. Its argument is supported by an affidavit
from the supervisor who gave Ms. Cooper her evaluations, Walker
Aff., ECF No 48-12; Ms. Cooper’s performance ratings themselves,
ECF Nos. 48-2, 48-3; and the termination notice citing the
performance ratings, ECF No. 48-1. The evidence establishes that
Ms. Cooper was rated “slightly below standard” for several
performance-related reasons including: failing to follow
procedures for submitting discipline referrals, failing to
follow procedures for appropriate work attire, failing to follow
protocols for the morning block, failing to participate in a
work project, and failing to arrive on time. Walker Aff., ECF
No. 48-12. Ultimately, Ms. Cooper was terminated for her low
performance ratings. In its July 2012 termination notice, the
District explains that Ms. Cooper was terminated because “IMPACT
procedure provides that employees who receive a rating of
Minimally Effective for two consecutive years are subject to
separation.” Termination Notice, ECF No. 48-1. These performance
assessments confirm the District’s reasoning. See Assessments,
ECF Nos. 48-2, 48-3. In both, Ms. Cooper’s reduced scores
correspond to performance-related deficiencies observed in the
classroom and contain detailed explanations of each individual
problem. See, e.g., Assessment, ECF No. 48-3 at 5 (“Mrs. Cooper
was minimally effective at explaining content clearly.
Explanations of the content could have been strengthened through
the use of operational definitions and text rich bulletin board
material that outlined key concepts from the unit of study.”)
The Court agrees that the District has met its burden. It
is “well established” that an employee’s poor job performance is
a “nondiscriminatory justification for an adverse employment
action.” Edwards v. Environmental Protection Agency, 456 F.
Supp. 2d 72, 90 (D.D.C. 2006); see also Miles, 653 Fed. Appx. at
*7 (finding it legitimate that the employer terminated the
employee for performance-related reasons), Thomas v. District of
Columbia, 227 F. Supp. 3d 88, 101-02 (D.D.C. 2016) (finding
deficient work performance and not “get[ting] along with her
ultimate supervisor” a legitimate reason for adverse action).
Having established a legitimate, nondiscriminatory purpose,
the “ultimate burden” now switches to Ms. Cooper to show that
the District’s stated reasons were pretextual, masking its
retaliatory motive. St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 508 (1993)(analyzing a Title VII case under the McDonnell
Douglas scheme). 8 This requires showing both that the District’s
reason was false and that protected activity was the real
reason. Id. Otherwise, courts “may not second-guess an
employer’s personnel decisions absent demonstratively
discriminatory motive.” Fishbach v. District of Columbia
Department of Corrections, 86 F.3d 1180, 1183 (D.C. Cir.
1996)(internal quotations and citations omitted).
Ms. Cooper has not met her burden. She does not cite any
support in the record to corroborate that the school’s reasons
in terminating her were pretextual. See generally Pl. Opp’n and
The D.C. Circuit has held that the “analytical framework for [a] claim of
retaliation” under FMLA is the same as a claim of discrimination under Title
VII. McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6 (D.C.
Exs., ECF No. 51. After a review of the record, the Court comes
up lacking. In fact, to the extent that Ms. Cooper does argue
that the decisions were pretextual, she seems to allege that the
pretext is based not on taking FMLA leave, but on “racial and
age-based animus,” which is irrelevant to her FMLA claim. Pl.
Opp’n, ECF No. 51 at 3; see also id. at 4 (“Plaintiff returned
from FMLA leave and was harassed by her superiors, demoted with
a ten point deduction . . . and terminated. These actions were
taken . . . in retaliation for the protected activity of
reporting harassment and discrimination to her employer and
requesting accommodation for her disability.”) In her Statement
of Disputed Facts, Ms. Cooper again asserts that her “lowered
teacher rating was in retaliation for her accommodation request
and reports of harassment.” Pl. Stmt., ECF No. 51-2 at ¶ 14.
Again, Ms. Cooper contradicts herself when she testified that
the allegedly adverse ten-point deduction in her performance
rating resulted from questioning another teacher’s authority, a
reason completely unrelated to her FMLA leave. Pl. Dep., ECF No.
48-9 at 66:22-67:4.
Ms. Cooper goes on to argue that “further discovery” will
reinforce “existing record proof that the sole reason provided
by the District for Cooper’s discharge was a pretext . . . in
retaliation for her participation in activities protected by the
statute.” Pl. Opp’n, ECF No. 51 at 5. Not only does Ms. Cooper
not cite to any of the claimed “existing record proof” to
support her argument, but this summary judgment motion comes
after a full opportunity for discovery on the claims that
survived the District’s Motion to Dismiss. Finally, Ms. Cooper
asserts that the District’s reasons are pretextual because the
District has given “different justifications at different times”
which have been “arguably inconsistent.” Id. at 6. But Ms.
Cooper does not describe what those inconsistent reasons are,
nor does she cite to the record to support these assertions.
Additionally, Ms. Cooper provided no evidence that she
faced harassment as a result of her taking FMLA leave. While Ms.
Cooper describes a number of incidents demonstrating a
contentious relationship with the school’s administration, she
does not demonstrate that any of these interactions were in
retaliation for taking FMLA leave. See Pl. Dep., ECF No. 48-9 at
53-84; see also Pl. Interrog., ECF No. 48-8 at 2-9. When asked
what she thought caused the alleged harassment, Ms. Cooper
responded: “I don’t know. I don’t have the slightest . . . . I
wish I could tell you what it was . . . . I wish somebody would
tell me what the problem was.” Pl. Dep., ECF No. 48-9 at 65-67.
The most colorable incident of potential FMLA-related harassment
is the allegation that the DCPS Principal told her “on or about”
September 16, 2011 that he “heard [she] always uses leave.” Pl.
Dep., ECF No. 48-9 at 68:2-22; Pl. Interrog., ECF No. 48-8 at 7.
Ms. Cooper does not allege that any further harassment happened
as a result of that conversation. See Faragher v. City of Boca
Raton, 524 U.S. 775, 787–88 (1998) (finding that “simple
teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to [discrimination]”)
(quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S.
75, 82 (1998)). Indeed, “the D.C. Circuit has repeatedly
emphasized that ‘casual or isolated manifestations of a
discriminatory environment . . . may not raise a cause of
action.’” Goode v. Billington, 932 F. Supp. 2d 75, 89 (D.D.C.
2013) (quoting Park v. Howard University, 71 F.3d 904, 906 (D.C.
Because Ms. Cooper is unable to demonstrate that the
District retaliated against her in violation of the FMLA, it is
not necessary to determine whether any alleged violation is
willful as it must be to avoid the two-year time bar. The
District’s motion for summary judgment on this claim is GRANTED.
For the reasons stated above, the District of Columbia’s
motion for summary judgment is GRANTED. An appropriate Order
accompanies this Memorandum Opinion.
Emmet G. Sullivan
United States District Judge
September 29, 2017
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