Wilkerson v. Wackenhut Protective Services, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WINFRED WILKERSON, )

)

Plaintiff, )

)

v. ) Civil Case No. 9-2142 (RJL)

)

)

W ACKENHUT PROTECTIVE )

SERVICES, INC., )

)

Defendant. )

)

)

ltvd

MEMORANDUM OPINION

(September J:I)O

11) [Dkt. # 14]

Plaintiff, Winfred Wilkerson ("Wilkerson" or "plaintiff'), brought an

employment-discrimination action against his employer, Wackenhut Protective Services,

Inc. I ("Wackenhut" or "defendant"), asserting gender discrimination claims under the

D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-l40l.0l-2-140l.06. Complaint

("Compl."), Oct. 15,2009 [Dkt. #1-2]. Defendant removed the case to this Court on

November 13,2009, and later filed a Motion for Summary Judgment. Def.'s Motion for

Summary Judgment ("Mot. for Summ. J."), Sept. 2, 2010 [Dkt. #14]. Upon review of the

pleadings, the entire record, and the applicable law, defendant's Motion for Summary

Judgment [Dkt. #14] is GRANTED.

Although Wackenhut Protective Services, Inc., is named in this suit, plaintiff

acknowledges that Wackenhut Services, Inc. ("WSI") employed him. See Def. 's Mot. for

Summ. J. at 3, n.6.

1

BACKGROUND

I. Plaintiff's Employment With Wackenhut

Wilkerson is an African American male who was, at the time of filing this action,

forty-seven years old. CompI., 6. Wackenhut provides armed and unarmed security

services to government customers such as Walter Reed Army Medical Center ("Walter

Reed"). Mot. for Summ. J. at 2; see also Def.'s Ex. 2, PaffDecI. , 2 [Dkt. #14-10].

Wackenhut is an equal-opportunity employer whose stated policy prohibits unlawful

discrimination, including gender discrimination. Mot. for Summ. J. at 2; Def.'s

Wilkerson Dep. Ex. 6, Equal Employment Opportunity Policy [Dkt. #14-2 at 16].

Around August 2008, Wackenhut succeeded Chenega Protective Services

("Chenega") as the security contractor for Walter Reed. Mot. for Summ. J. at 3; Def.'s

Ex. 3, Deposition of Dale Paff ("Paff Dep."), June 25, 2010, at 12:18-19 [Dkt. #14-11].

That same month, plaintiff applied for a job as a security officer with Wackenhut. Def.'s

Wilkerson Dep. Ex. 3, Wilkerson Employment Application, Aug. 5, 2008 [Dkt. # 14-2].

Wackenhut gave plaintiff a conditional offer of employment, see Def. 's Wilkerson Dep.

Ex. 5, Aug. 1,2008 [Dkt. #14-2 at 14], and plaintiff began work shortly thereafter. 2

During discovery, Mr. Paff, Wackenhut's Regional Manager at that time, learned

that plaintiff falsely represented his prior employment on his Wackenhut job application

by stating that he had never been dismissed or asked to resign from a previous job. Mot.

for Summ. J. at 3-4; see also Def. Dep. Ex. 3, Wilkerson Application for Employment,

Aug. 5,2008, at 3 [Dkt. #14-2]. In fact, a prior employer had fired plaintiff for reckless

and negligent driving which resulted in plaintiff crashing the employer's van, and for

failing to report the accident. See, e.g., Def.'s Ex. 1, Wilkerson Dep. at 20:14-16,22:12-

15,29:4-19; Def. Dep. Ex. 4, Employee Disciplinary Notice, April 12, 2001 [Dkt. # 14-2

at 7]. The employment application stated that "any misrepresentation, falsification, or

omission of this application shall be sufficient reason for refusal or dismissal of ...

2

II. Wackenhut Attendance and Discipline Policies 3

Wackenhut's employee attendance polices are outlined in various company

documents, including the Wackenhut Security Officer Handbook ("Handbook"),4 see,

e.g., Oef.'s Oep. Ex. lO [Okt. #14-3 at 3], and WSI statements of policy. See, e.g., Oef.'s

Oep. Ex. 12, Performance ofOuty Policy Change, Aug. 18,2008 [Okt. #14-9]. The

Wackenhut Handbook clearly states that grounds for immediate dismissal include

"[u]nexcused 'no call, no show' absence(s)." Oef.'s Oep. Ex. lO, Part 4 [Dkt. #14-6 at

3]; see also Def.'s Dep. Ex. 13, Policy #4, Work Attendance [Okt. #14-9 at 8] (noting

that one "no call/no show" incident "will subject the employee to disciplinary action up

to and including termination"). Company policy also emphasizes this point: "the

following are examples of actions ... [which] may result in disciplinary action, up to and

including termination: excessive absences or tardiness (even when excused)." Oef.'s

Dep. Ex. 12, Policy #1, Performance of Duty [Dkt. #14-9 at 5].

The Handbook does not appear to outline specific procedures for handling the

request of an officer who wishes to swap shifts with another employee to avoid missing

employment," see Oef.'s Oep. Ex. 3, and plaintiff acknowledged as much during a sworn

deposition. Def.'s Ex. 1, Wilkerson Dep. at 14:22-15:17. In a sworn declaration, Paff

stated that he would have fired plaintiff had the fraud come to light during plaintiff s

employment. Def.'s Ex. 2, PaffDecl. ~~ 5-7.

3

To the extent plaintiff contests the facts described below, he fails to actually

identify genuine issues of material fact because he relies only on bare assertions and

concIusory allegations instead of on admissible, record evidence.

4

Plaintiff signed a receipt stating that he received, read, and understood the

Handbook on August 5, 2008. See Oef.'s Dep. Ex. 11, Receipt of WSI Employee and/or

Security Officer Handbook, Aug. 5,2008 [Dkt. #14-9].

3

an assigned shift. However, Wackenhut does follow an unwritten, but "learned

procedure" for such requests. See Def. 's Ex. 3, PaffDep., at 51 :21-22 [Dkt. #14-11].

Specifically, then-Regional Manager Dale Paff explained that management requires

employees to submit a "swap form" detailing information about the employee originally

scheduled for a given shift and the employee who has agreed to take over the shift. See

id. at 60-61. The form, which must be "signed by both employees and approved by

management," id. at 51: 11-17, ensures that an employee is held accountable, a record is

made, and management is informed about which employee is responsible for each shift,

see id. at 52-53; see also Def.'s Ex. 4, Dep. ofLt. Victor Spain ("Spain Dep.") [Dkt. #14-

12] at 38:3-8 ("Well, they were allowed to change shifts .... That was okay. But

paperwork had to be done for that."). Indeed, "[ a]bsent an official written shift swap, the

officer assigned to a shift at Walter Reed Army Medical Center is responsible for

manning it." Def.'s Ex. 2, PaffDecl., ,; 4.

Importantly, although Wackenhut policy does include a "progressive discipline

process" in which disciplinary actions may escalate commensurate with the number of an

employee's unscheduled absences, see Def.'s Dep. Ex. 13, Policy #4 - Work Attendance,

at 3, Wackenhut also retains "the absolute right to terminate any employee at any time

with or without good cause," Def.' s Dep. Ex. 10, Security Officer Handbook, at 3 § 2.15.

III. Plaintiff's Request For Vacation

In early September 2008, plaintiff submitted a request to his supervisor,

Lieutenant Victor Spain, asking for two weeks of vacation in early October. Mot. for

Summ.1. at 5; Pl.'s Opp'n at 4 [Dkt. #20]. Lt. Spain forwarded the request to Chief

4

limmi Brown, who delegated decision-making to Captain Haskins. See Def.'s Ex. 1,

Wilkerson Dep., at 69-71; see also Def. 's Ex. 4, Spain Dep. at 9-11.

At the time, Walter Reed was short-staffed and Wackenhut was trying to reduce

overtime expenditures. Def.'s Ex. 3, PaffDep. 16:6-13, 19: 18-20:7; Def.'s Ex. 4, Spain

Dep. 39:12-20; Def.'s Ex. 1, Wilkerson Dep. 59:5-60:1. As a result, Capt. Haskins

denied plaintiffs request for leave, explaining the short-staff issue to plaintiff in person.

Notwithstanding the staff shortages, however, Capt. Haskins agreed to give plaintiff time

off if plaintiff could find someone to cover his shifts - that is, if plaintiff could

successfully complete a shift swap. Mot. for Summ. 1. at 5; PI.'s Opp'n at 4; Def.'s Ex.

1, Wilkerson Dep. 70:20-71 :4, 75:2-76:2, 77: 12-78: 17, 81: 15-82:4; Def.'s Dep. Ex. 15,

Wilkerson's EEOC Charge of Discrimination [Dkt. # 14-9] ("I initially applied to use

some of my ... accumulated leave for a week. Initially, I was turned down and was told

that we were short of manpower .... Later I was told by my Captain that he would

approve leave ifI could find a replacement who was willing to work my shifts.").

Plaintiff accepted Capt. Haskins' offer to orchestrate a shift-swap in order to take leave.

Def.'s Ex. 1, Wilkerson Dep. 79:19-20 ("I said okay. I said, that's a deal.").

In total, plaintiff hoped to take leave - and thus swap duties - for six shifts

between October 2 and October 10, 2008. The shifts were scheduled according to

plaintiffs normal working days: in his case, for Thursday, Sunday, Monday, Tuesday,

Wednesday, and the following Thursday. Pl.'s Opp'n at 4-5; PI.'s Attach. B, Wilkerson

Decl., Oct. 11,2010 [Dkt. #20-1 at 11], ~ 5.

Plaintiff contends that he identified three other officers to cover his shifts. Mot.

5

for Summ. 1. at 7; PI.'s Opp'n at 4-5; PI.'s Attach. B, Wilkerson Decl., ~ 5. He maintains

that Officer Samuel Addy agreed to work four of the six shifts: Monday, Tuesday,

Wednesday, and Thursday. Mot. for Summ. J. at 7; PI.'s Opp'n at 5; Def.'s Ex. 1,

Wilkerson Dep., 70:19-71:9, 82:5-83:2, 84:22-85:15; Def.'s Ex. 5, Addy Dep. 23:15-

27:10 [Dkt. #14-13]. Wackenhut acknowledges that Officer Addy orally informed

Capt. Haskins that he would swap four shifts with plaintiff, and that Capt. Haskins orally

approved plaintiffs request for time off. 5 Mot. for Summ. J. at 7. But it is undisputed

that neither Wilkerson, nor Officer Addy, documented the shift swap, and that Capt.

Haskins did not sign any document approving it. Jd.; see also Def.'s Ex. 5, Addy Dep.

24:16-17,25:9-16,27:4-5,28:5.

Nonetheless, Wilkerson took the leave he requested. Indeed, during that time, he

attended a training class offered by Chenega Security, the predecessor for the Walter

Reed contract, see PI.'s Opp'n at 5, and a Wackenhut competitor. See also PI.'s Attach.

B, Wilkerson Decl., ~ 6. Meanwhile, Officer Addy did not show up for the four shifts he

allegedly agreed to cover.6 Mot. for Summ. J. at 7; see PI. 's Attach. C, Addy Decl., ~ 10;

5

Plaintiff does not explain or provide evidence pertaining to who agreed to swap

with him for the remaining two shifts. Wackenhut suggests that plaintiff "hoped"

Officers Pope and Kilgore would cover the remaining two shifts, but plaintiff provides no

evidence that either Officer was asked to swap before plaintiffs departure, and offers no

evidence that either Officer agreed (much less documented the agreement in writing).

See Def.'s Ex. 1, Wilkerson Dep. 84:22-85:15,187:22-188:16 (admitting under oath that

he "hadn't spoke[ n] with [Officer Kilgore] before [he] departed for [his] vacation").

Thus, plaintiffs assertion - with absolutely no explanation or supporting evidence - that

he "arranged for others to cover" does nothing to prove his claim. PI.' s Opp' n at 16.

In his own declaration, Addy explained that when he called into work the day

before the first shift he (orally) agreed to cover for plaintiff, the sergeant on duty stated

6

Def.'s Ex. 3, PaffDep. 62:14-20. As such, Captains Brown and Haskins reported

Wilkerson's absences to Paff, who, as Regional Director, was responsible for

recommending disciplinary action for Wackenhut's Walter Reed employees. Mot.

Summ. J. at 7; Def.'s Ex. 3, PaffDep. 5:13-14,27:2-4,31:5-9,43:2-10. In addition, the

Captains explained that Wilkerson had missed mUltiple shifts over the course of that ten-

day period. 7 See, e.g., Mot. SUlnm. 1. at 7; Def.'s Ex. 3, PaffDep. 18:20-20:10,27:11-17,

31: 10-32: 14. Paff also learned that Capt. Haskins (and perhaps others) had meaningfully

attempted to reach Wilkerson on his cell phone to find out why he had not covered his

shifts. 8 See id. at 32:5-14, 40: 18-21, 44: 11-18.

In sum, Paff concluded that plaintiff had abandoned his job, see, e.g., id. 40: 12-21,

44:9-45:7; Def.'s Ex. 1, Wilkerson Dep. 142:21-143:1, and instructed Chief Brown to

issue a "job abandonment" letter terminating Wilkerson for missing "ten (10) scheduled

that Addy was not listed "anywhere on the schedule." PI.'s Attach. C, Addy Decl., ~ 10.

This comports with Pafrs testimony that "if the vacation was not approved," (and

according to Paff, it was not) Wilkerson "would still be scheduled for work on his shift-

on the schedule." Def.'s Ex. 3, PaffDep. 49:8-10. It is undisputed that Addy did not

show up for the shifts - the likely result of Addy's assumption, after calling in, "that they

must have got somebody else to cover [Wilkerson's] shifts." Pl.'s Attach. C, Addy

Decl" ~ 10. And although no party explicitly makes this point, the evidence manifestly

supports the inference that the documentation portion of the "shift swap" procedure exists

precisely to avoid the situation described here: missed shifts due to lack of formal

communication between employees and employers.

Paff characterized the missed shifts as plaintiff "in effect" not "show[ing] up for

approximately ten days" and being "unable to be contacted." Def.'s Ex. 3, PaffDep.

20:8-10. He later clarified that he did not contend that plaintiff "missed ten shifts," but

rather that "for a period of over ten days we were unable to get in contact with Mr.

Wilkerson." Id. 50:1-5.

Plaintiff denies that anyone called him about missed shifts. See PI. 's Attach B,

Wilkerson Decl" ~ 7.

7

days of work, without calling or letting [Wackenhut] know your status." Def.' sEx. 3,

PaffDep. 49: 19-51 :7; Def.'s Dep. Ex. 16, Letter from J. Brown to Wilkerson, Oct. 16,

2008 [Dkt. # 14-9].

After his termination, plaintiff (curiously!) filed a discrimination charge with the

Equal Employment Opportunity Commission ("EEOC"). See Def. 's Ex. 1, Wilkerson

Dep. 75:2-10; Def.'s Dep. Ex. 15, EEOC Charge of Discrimination [Dkt. #14-9]. The

EEOC dismissed plaintiff s charge for failure to find any evidence of discrimination

against him. Def.' sEx. 1, Wilkerson Dep. 117: 17 -22. Wilkerson then filed this civil

action.

ANALYSIS

I. Standard of Review

A. Summary Judgment

Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment 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." When examining the record, the Court must

view all inferences in the light most favorable to the non-moving party. See, e.g., Adiekes

v. SH. Kress & Co., 398 U.S. 144, 157 (1970). But to avoid summary judgment, the

non-moving party must introduce specific facts "showing that there is a genuine issue for

trial." Matsushita Elee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citing Fed. R. Civ. P. 56(e». That evidence "must consist of more than mere

unsupported allegations or denial and must set forth specific facts." Walker v. Dalton, 94

F. Supp. 2d 8, 10 (D.D.C. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 n.3

8

(1986». Indeed, the "opponent must do more than simply show that there is some

metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at

586.

B. Employment Discrimination

Claims under the DCHRA are analyzed under the burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that

framework, a plaintiff must establish a prima facie case by proving that (1) he is a

member of a protected class; (2) he suffered an adverse employment action; and (3) the

unfavorable action creates an inference of discrimination. See McDonnell Douglas, 411

U.S. at 802. If a plaintiff successfully makes a prima facie case, the burden then shifts to

the defendant to articulate a "legitimate, nondiscriminatory reason for the employee's

rejection." Id. If the defendant is able to articulate such a reason, the burden shifts back

to the plaintiff to prove, by a preponderance of the evidence, that defendant's stated

reasons are actually pretext for discrimination. Id.; see also Brady v. Office of the

Sergeant at Arms, 520 F.3d 490,495 (D.C. Cir. 2008).

However, at the summary judgment stage, the Court need only resolve one central

question: whether the employee "produced evidence sufficient for a reasonable jury to

find that the employer's stated reason was not the actual reason and that the employer

intentionally discriminated against [the employee] based on his [protected class]?"

Brady, 520 FJd at 494.

9

II. Defendant Is Entitled To Summary Judgment Because Plaintiff Offers No

Admissible Evidence of Discrimination.

In essence, plaintiff's discrimination claim boils down to this: as a male, he

suffered disparate treatment when he was "treated less favorably than females who were

taking vacation during th[ e] same period of time to attend training for competitor security

companies." See PI.'s Opp'n at 7. Because he was asked to complete a shift swap before

taking leave, and because he was fired when he did not successfully do so, plaintiff

contends that he was "treated much more harshly than female coworkers who had

attendance problems and were no call/no shows for several days in a row." See id. at 8.

Unfortunately for plaintiff, he offers no admissible evidence to prove his claims of

disparate treatment. References (and citations) to unsworn and unauthenticated

documents pertaining to the discipline of what plaintiff says are similarly situated female

employees, see PI.'s Attach. J, Rhyne Notice of Termination [Dkt. #20-1 at 50], Attach.

K, Walcott Abandonment Letter [Dkt. #20-1 at 55], have no value since those documents

are inadmissible, see PI.'s Opp'n at 7-8; see also Jackson v. Finnegan et. al, 101 F.3d

145,150 (D.C. Cir. 1996) ("Unless the opposing party points to 'affirmative evidence'

showing disputed material facts, the court shall enter summary judgment, if appropriate,

against the adverse party.") (internal citation omitted). Indeed, it is well established that

"[ u]nsworn, unauthenticated documents cannot be considered on a motion for summary

judgment." Akers v. Liberty Mut. Grp.} 744 F. Supp. 2d 92,97 (D.D.C. 2010) (internal

citations omitted);9 see also Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to

Defendant contends, and I agree, that much of plaintiff's "evidence" is, as a matter

10

support or oppose a motion must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.").

In the same vein, Wilkerson's claims that a female employee requested - and was

granted - vacation but was not asked to first complete a shift swap does not create a

genuine issue where the only documentation supporting the assertion is unauthenticated

and unsworn. See PI.'s Attach. I, Saab Leave Request Form [Dkt. #20-1 at 48]; see also

Akers, 744 F. Supp. 2d at 97. Personal belief, speculation, and hearsay, however, are

simply insufficient to defeat a motion for summary judgment. See, e.g., Robinson-Reeder

v. Am. Council on Educ., 674 F. Supp. 2d 49,52 (D.D.C. 2009). With no actual evidence

of disparate treatment before this Court, there is no reason to analyze - much less endorse

- these aspects of plaintiff's claims. And in any event, plaintiff's own sworn admission-

acknowledging that in other instances, Wackenhut has allowed other male employees to

take time off without requiring them to first complete a shift swap, see Def.' sEx. 1,

Wilkerson Dep. 113: 19-114: 10,232:4-17, greatly undermines Wilkerson's claim of

of law, inadmissible. To wit, plaintiff's Attachments E (Rivera Statement) [Dkt. #20-1 at

37], H (Aponte Statement) [Dkt. #20-1 at 47], I (Saab Leave Request Form) [Dkt. #20-1

at 48], J (Rhyne Disciplinary Record) [Dkt. #20-1 at 50], K (Walcott Disciplinary

Record) [Dkt. #20-1 at 55], are unsworn, irrelevant, and/or hearsay and therefore

inadmissible. See Def.'s Reply at 3-4. As a result, they cannot be considered at summary

judgment. Moreover, to the extent that Wilkerson's declaration (PI.'s Attach. B) and that

of Officer Addy (PI.'s Attach. C), present conclusory beliefs and speculation (not

evidence) and inadmissible hearsay, they are unpersuasive. See Jameson v. Jameson, 176

F.2d 58, 60 (D.C. Cir. 1949) ("Affidavits filed by a party in support of or in opposition to

a motion for summary judgment must present evidence" and should "follow substantially

the same form as though the affiant were giving testimony in court") (internal citation

and quotations omitted); see also Def.'s Reply at 3-4 [Dkt. #21].

11

gender discrimination.

Finally, even if plaintiff's utter lack of evidence were not already fatal to his

claims 10 (which it most certainly is), he is still unable to prove that Wackenhut's

legitimate, non-discriminatory reasons for firing him are pretextual. Plaintiff's mere

suggestion - absent admissible, corroborating evidence - that his personal disagreement

with the characterization of certain facts either creates a genuine issue or permits the

inference of pretext, see generally Pl.'s Opp'n at 15-18, does not make it so. For

example, although plaintiff offers an unsworn statement from Dale Paff (which cites

hearsay from Chief Brown) suggesting that plaintiff did submit the requisite shift-swap

paperwork, see Pl.'s Attach. L, Unsworn and Undated PaffStmt. at 8 [Dkt. #20-1 at 59],

that statement does not create a genuine issue of fact (much less an inference of

discrimination) because it is inadmissible. See Jackson, 101 F.3d at 150. Plaintiff's

unsupported conclusion that "it is clear that in this case Chief Brown made the decision

[to terminate] even before any investigation was conducted" does not prove illegal

animus, either, and is similarly unavailing. See Pl.'s Opp'n at 17; see also, e.g., Pl.'s

Opp'n at 16 (unsupported contention that Chief Brown "fabricated" plaintiff's alleged

admission). Nor can plaintiff establish pretext by contending that Wackenhut could have,

but did not, impose progressive discipline, see Pl.'s Opp'n at 7, 16 - especially when

Wackenhut policy permitted swift and severe punishment for a single "no show," see

10 That is, assuming arguendo that plaintiff could establish a prima facie case of

discrimination. Wackenhut does not concede this point, Def.'s Reply at 9 n.8, and

because Wackenhut asserted a legitimate, nondiscriminatory reason for its action, I "need

not - and should not - decide whether plaintiff actually made out a prima facie case

under McDonnell Douglas." Brady, 520 F.3d at 494 (emphasis in original).

12

Def.'s Mot. for Summ. 1. at 4.

In contrast to plaintiffs conclusory and unsupported assertions, Wackenhut has

offered more than enough evidence to show that it terminated plaintiff for a legitimate

and nondiscriminatory reason: plaintiff did not show up for multiple shifts for which he

was solely responsible. Ultimately, however, Wackenhut prevails because it must only

meet the standard of acting in good faith: "Once the employer has articulated a non-

discriminatory explanation for its action ... the issue is not the correctness or desirability

of [the] reasons offered ... [but] whether the employer honestly believer d] in the reasons

it offers." Fishbach v. D.C Dep't ofCorrs., 86 F.3d 1180,1183 (D.C. Cir. 1996)

(internal citations omitted). Looking at the evidence here, it is clear that Wackenhut

easily meets this standard. Its explanation is as simple as this: then-Regional Manager

Paff attested to his genuine belief - and conclusion, based on the evidence before him at

that time - that plaintiff had abandoned his job. See, e.g., Def.'s Ex. 3, PaffDep. 18:20-

20:10,31:5-32:4,40:12-21,44:9-51:7. Paffinstructed Chief Brown to issue an

abandonment letter, id. at 49: 19-51 :7, which he did. Evidence ofPaffs reasonable and

honest belief that plaintiff abandoned his job far outweighs the tangled web of

unsupported assertions plaintiff weaves to obscure a complete lack of evidence

substantiating his claims. See Vatel v. Alliance ofAuto. Manufs., 627 F.3d 1245, 1248

(D.C. Cir. 2011) (affirming summary judgment for employer because "it is [the

supervisor's] perception that is relevant. Here, the evidence overwhelmingly shows that

[the supervisor] honestly and reasonably believed that their working styles were

incompatible"). Not only does plaintiff himself conceded that Wackenhut "probably did"

13

believe that he had "miss[ed] [his] shift," Def.'s Ex. 1, Wilkerson Dep. 205:10-14 - thus

substantiating, under oath, Wackenhut's nondiscriminatory and legitimate belief - he

offers no evidence to the contrary. Most unsettling, however, and ultimately fatal to his

claims, are Wilkerson's own admission - under oath - that he is not aware of any facts to

support a conclusion that: (1) Paff, Chief Brown, or Lt. Haskins are prejudiced against

men, see Def.'s Ex. 1, Wilkerson Dep. 119:4-11, 169:l3-16, 215:14-18; or (2) "that

Wackenhut terminated [him] because [he is] a man," id. at 107:7-11. Thus, it is no

surprise that plaintiff s claims must, and will, join the ever-growing pantheon of meritless

employment-discrimination claims used as a sword by disgruntled employees in an effort

to leverage yet another opportunity with their former employer. II

CONCLUSION

For all of the foregoing reasons, defendant Wackenhut's Motion for Summary

Judgment [Dkt. #14] is GRANTED. An order consistent with this decision accompanies

this Opinion.

II Because plaintiff does not survive summary judgment, defendant's argument that

this Court can deny relief for any damage or injuries plaintiff sustained beyond June

2010, when Paff discovered that plaintiff lied on his employment application, is moot.

See Def.'s Mot. for Summ. 1. at 14; Def.'s Reply at 14; McKennon v. Nashville Banner

Publ'g Co., 513 U.S. 352, 362-63 (1995) (allowing courts to deny reinstatement, front

pay, and back pay to employee prevailing on an ADEA claim when the employer

presents after-acquired evidence of misconduct "of such severity that the employee in

fact would have been terminated on those grounds alone if the employer had known of it

at the time of the discharge").

14