THOMPSON v. VETERANS CANTEEN SERVICE

Filing 36

MEMORANDUM OPINION re 35 Order granting Defendant's Motion for Summary Judgment. Signed by Judge James E. Boasberg on 01/12/2016. (lcjeb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BONNIE THOMPSON,
Plaintiff,
v.

Civil Action No. 15-249 (JEB)

VETERANS CANTEEN SERVICE,
Defendant.

MEMORANDUM OPINION
Two weeks after starting her job as a food-service associate at the Veterans Canteen
Service, pro se Plaintiff Bonnie Thompson was fired. She has sued, claiming that the VCS’s
employment action constitutes unlawful age and sex discrimination. As the undisputed evidence
instead demonstrates that a rude interaction with a patron precipitated her termination, the Court
will grant Defendant’s Motion for Summary Judgment.
I.

Background
Although the facts here are quite simple, the procedural history is somewhat involved.

Thompson initially filed suit in this court on December 4, 2013. See ECF No. 1 (Complaint).
Her very abbreviated Complaint alleged that she had been terminated “as a food service
associate” at the Veterans Canteen Service on July 25, 2012. See id. at 1. She claimed that she
“was discriminated against based upon my gender in violation of the Civil Rights Act of 1964, as
amended. [¶] Moreover, I believe that I was discriminated against based upon my age 57, in
violation of the age discrimination in Employment Act of 1967 as amended.” Id.

After setting out these legal bases, the remainder of the Complaint alleges, in its entirety:
I was having breakfast prior to my shift and there was another person
having breakfast in the room, shortly afterwards another person
came in and sat next to me. He got up from his seat picked up the
TV remote and asked the other person whom was a male, “Hay
Man” are you watching this”. The person didn’t respond verbally
so the person who came in last rudely changed the channel At that
time, I said to him Sir there is such a thing as mannerism, you could
have asked both of us, he stated it doesn’t matter you’re out
numbered anyway
At that time I left the room, I was approached by Rodney Guiles
(Cafeterial Supervisor) who indicated he wanted to speak with me I
waited for Mr. Guiles approximately 15 minutes before he called me
into his office, at that time Mr. Guiles asked another Supervisor
name Pat to come into the office to listen to my statement, along
with Chief Manager Gavin Moore After giving my statement Mr.
Guiles ask me to sit in the cafeteria while he call the other person,
when I was recalled back into his office Mr. Guiles stated he had to
terminate my employment even though my shift had not begun At
that time I asked Mr. Guiles for a reason and a letter of termination
which he refused I can only conclude that Mr. Guiles treated me
differently than the other people involved in the incident which were
males. I feel Mr. Guiles is bias against older workers which are
females [sic]
Id.
Defendant’s Statement of Undisputed Material Facts (SUMF) accompanying its Motion
largely confirms this account and add a few additional facts – all from Thompson’s own
deposition testimony. See Mot., Exhs. A & B (extracts from Plaintiff’s deposition). She had
been working at the cafeteria for only two weeks at the time of the incident. See Def.’s SUMF, ¶
4. On that day, while wearing her uniform, she was seated in the cafeteria eating breakfast
before her shift began. See id., ¶¶ 5-7. A dispute occurred over television channels, leading
Thompson to make the comment she alleges in her Complaint. See id., ¶¶ 10-15. Her supervisor
then terminated her for this interaction. See id., ¶¶ 24-25.
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The case was initially transferred at the end of 2013 to the Eastern District of Missouri,
where the VCS is headquartered. See ECF No. 3 (Transfer Order). On February 6, 2014,
Thompson filed an Amended Complaint, using a form apparently provided by the court there.
She checked a space indicating her suit was brought under Title VII, but she did not check the
space next to “Age Discrimination in Employment Act of 1967.” Am. Compl. at 1. This
document elsewhere indicates that she believed she was discriminated against based on gender
and possibly age. See id. at 5. In the narrative, she stated that she did not “feel that the incident
was properly and adequately investigated between the customer and myself. Also I received bias
treatment due to the fact I’m a woman and at that time, I was the only woman in the room.” Id.
To give Thompson the benefit of the doubt, the Court will treat this Amended Complaint as
supplementing, not superseding, her original Complaint.
After Defendant answered, see ECF No. 12, Plaintiff successfully moved for venue to be
returned to Washington. See ECF Nos. 20 (Motion); 21 (Order transferring case based on
convenience of parties, convenience of witnesses, and interests of justice). This Court thereupon
held an initial scheduling conference on April 1, 2015, and the parties engaged in discovery
through October 1, 2015. See ECF No. 24 (Scheduling Order). The VCS has now moved for
summary judgment.
II.

Legal Standard
Summary judgment may 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
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895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in its favor. See
Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
In light of this requirement, and pursuant to Local Civil Rule 7(h) and Federal Rule 56(c),
the Court, in resolving summary-judgment motions, “assume[s] that facts identified by the
moving party in the 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). Plaintiff here
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submits neither a separate statement nor any record evidence whatsoever. The Court,
consequently, will credit the VCS’s evidence, which, in any event, consists only of Thompson’s
own testimony.
III.

Analysis
Title VII makes it “an unlawful employment practice . . . to discharge any individual, or

otherwise to discriminate against any individual . . . because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The ADEA, similarly, prevents an
employer from “discharg[ing] any individual or otherwise discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). Individuals 40 years of age and older are
included in the protected class. Id., § 631(a). Because Thompson was concededly
“discharge[d],” the sole inquiry here is whether she was terminated “because of” her sex or age.
Id., §§ 623(a)(1), 631(a).
Claims of sex and age discrimination ordinarily proceed in three steps. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Kersey v. Washington Metr. Transit
Auth., 586 F.3d 13, 16-17 (D.C. Cir. 2009). First, the plaintiff carries the initial burden of
establishing a prima facie case of discrimination. See Texas Dept. of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53 (1981); Kersey, 586 F.3d at 17. To pass that hurdle, a plaintiff need only
show that “(1) she is a member of a protected class; (2) she suffered an adverse employment
action; and (3) the unfavorable action gives rise to an inference of discrimination.” Czekalski v.
Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C.
Cir. 2005)). Next, the defendant typically rebuts that prima facie showing with evidence of “a
legitimate, nondiscriminatory reason” for its actions. Reeves v. Sanderson Plumbing Prods, Inc.,
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530 U.S. 133, 142 (2000). Finally, if the defendant has produced such evidence, then the
plaintiff must show that “the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Id. at 143 (internal quotation marks omitted). In
other words, the plaintiff must prove “that the employer’s asserted non-discriminatory reason
was not the actual reason and that the employer intentionally discriminated against the
employee.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
At the summary-judgment stage, however, the inquiry typically collapses into one simple
question: Given all the evidence, could a reasonable jury conclude that “the defendant
intentionally discriminated against the plaintiff”? Id. (internal quotation marks omitted). Once
an employer has offered legitimate, non-discriminatory reasons for firing the plaintiff, “the prima
facie case” becomes “a largely unnecessary sideshow.” Id. (italics added). After all, a jury
would be permitted to consider all the evidence on both sides of the scale – not only the
defendant’s explanation of the firing and whatever evidence formed the plaintiff’s prima facie
case, but also any other facts tending to demonstrate animus. The relevant inquiry at the
summary-judgment stage, as always, is simply whether the facts, viewed in the light most
favorable to the plaintiff, would permit a reasonable jury to find in her favor.
According to Plaintiff herself, she was terminated for her comment to the cafeteria
customer. While her actions hardly seem to amount to a firing offense, that is not the question
here. Her assertion in her Opposition that the VCS “acted irrationally and hastily firing me
without any investigation,” Opp. at 2, is similarly beside the point. The only issue is whether the
VCS acted because of Plaintiff’s age or sex. See Fischbach v. D.C. Dep’t of Corrections, 86
F.3d 1180, 1183 (D.C. Cir. 1996) (court “may not second-guess an employer’s personnel
decision absent demonstrably discriminatory motive”). All Thompson can muster on that point
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is her allegation in the Complaint that “I can only conclude that Mr. Guiles treated me differently
than the other people involved in the incident which were males.” Compl. at 2; see also Am.
Compl. at 5 (“I received bias treatment due to the fact I’m a woman and at that time, I was the
only woman in the room.”). Assuming Plaintiff is trying to claim that she was treated differently
from her purported male comparators, she has neither alleged nor established that either of the
men involved was even a VCS employee. See Exh. A at 33-34 (seated man “wasn’t an
employee of the Veterans Canteen Service”); id. at 37 (“don’t know” if other man “was a Vet”).
As a result, they cannot serve as comparators who were conceivably treated more favorably than
Plaintiff.
In her Opposition, Plaintiff now asserts that she was also “wrongfully dismiss[ed] for
exercising my First Amendment Constitutional Rights to freedom of speech while off duty as
well.” Opp. at 1. As a preliminary matter, she never mentioned this rationale in any of her prior
pleadings. Even if the Court could now consider such a claim as an amendment to her
Complaint, a public employee’s speech is protected only where she “spoke as a citizen on a
matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Sniping about
television etiquette does not qualify.
IV.

Conclusion
The Court, accordingly, concludes that the VCS is entitled to summary judgment and will

this day issue a contemporaneous Order to that effect.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 12, 2016
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