Thomas v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AYo M. THoMAs,

Plaintiff, Civil Action No. 13-1551 (RDM)

v.

DISTRICT OF COLUMBIA,

Defena'ant.

MEMORANDUM OPINION

Plaintiff Ayo Thomas brings this action against her now-former employer, the District of

Columbia, for alleged violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq.

(“FMLA”), and the District of Columbia Family Medical Leave Act, D.C. Code § 32-501 et seq.

(“DCFMLA”). Thomas alleges that a month after approving her request for medical leave in

October of 2012, the District terminated her employment and that, by doing so, the District: (l)

interfered With her right to take protected medical leave and (2) retaliated against her for

exercising her right to take protected medical leave. See Dkt. l. The District moves for

summary judgment on both the interference and retaliation claims, arguing that Thomas’s

dismissal Was based on poor Work performance, personality clashes With senior management,

and the results of an internal ethics investigation, rather than her request for medical leave. See

Dkt. 26. Thomas opposes the District’s motion and cross-moves for summary judgment on her

interference claims. See Dkt. 36. For the reasons explained below, the Court will grant the

District’s motion for summary judgment and Will deny Thomas’s cross-motion.

I. BACKGROUND

For the purpose of evaluating the District’s motion for summary judgment, the following

facts are construed in the light most favorable to Thomas, who is the nonmoving party. See

Arrington v. Um`ted States, 473 F.3d 329, 333 (D.C. Cir. 2006).

After several years of employment in the District’s Office of the State Superintendent of

Education, Thomas joined the District’s Department of Youth Rehabilitation Services (“DYRS”)

in January of 2012 as the Human Resources Director. Dkt. 26-3 at 4-5. Thomas’s position was

at-will, Dkt. 33-9 at 132 (Pl.’s Dep.); Dkt. 26-2 (Def.’s SUMF 11 2), and her responsibilities

included the daily oversight of “HR operational functions,” the supervision of a seven-member

human resources team, the “[d]evelop[ment] and implement[ation of] recruitment and workforce

development plans,” and the “[e]ffective[] resol[ution ofj employee grievances,” Dkt. 26-3 at 6;

Dkt. 33-9 at 19-21, 34-35 (Pl.’s Dep.). In addition, Thomas assisted senior management in

filling “high priority positions” within DYRS by creating and maintaining a “recruitment report”

and by taking direct responsibility for the “day-to-day recruitment process.” Dkt. 33-9 at 27, 33-

34 (Pl.’s Dep.); Dkt. 34-3 at 3 (Shorter Dep. 38).

At the start of her employment with DYRS, Thomas’s direct supervisor was Chief

Operating Officer Christopher Shorter, Dkt. 33-9 at 35 (Pl.’s Dep.); Dkt. 26-3 at 7, who in turn

reported to Neil Stanley, the Director of DYRS, Dkt. 26-2 at 3 (Def.’s SUMF 11 13). Shorter

regularly let Thomas and her team “know that [they] were doing a good job” and gave Thomas

“pretty good feedback,” Dkt. 33-9 at 36 (Pl.’s Dep.); see also Dkt. 34~3 at 3, 8, 24~25 (Shorter

Dep. 38, 43, 100, 102) (expressing “satisf[action]” with Thomas’s “successful” work), but also

discussed with Thomas “the urgency of continuing to fill the vacant positions” at DYRS, Dkt.

33-9 at 36-39 (Pl.’s Dep.); see also Dkt. 34-3 at 9~10 (Shorter Dep. 44-45). After Shorter

moved to an “acting chief of staff role” in mid-2012, Regina Youngblood took over as Chief

Operating Officer. Dkt. 33-9 at 39~40 (Pl.’s Dep.). Although Thomas’s direct supervisor

changed, her role and responsibilities did not. Ia'. at 109 (Pl.’s Dep.).

A. Thomas’s Performance at DYRS in late-2012

Thomas was “never written up for any performance issues” while Youngblood was her

supervisor Dkt. 26-3 at 10; Dkt. 33-9 at 132, 212 (Pl.’s Dep.). Thomas did, however, receive

some feedback from Youngblood and others at DYRS in email correspondence, most notably

with respect to a “dashboard” project that required the ongoing submission of entries into a

database. In late-August of 201 2, for example, after Thomas told Youngblood that she would be

unable to meet a deadline due to a “staff shortage,” Youngblood responded that “two very

important items . . . now sit with you.” Dkt. 41-1 at 2. A week later, Youngblood sent Thomas a

second email asking whether Thomas had “made any progress on completing the file for

updating the dashboar ” and noting that “we are more than a week behind on our expected

delivery date.” Id. at 1. About a week later, Youngblood sent another email to Thomas,

explaining that “[Stanley] ha[d] communicated his expectation that the dashboard is correct for

Monday’s report” and that, as they had “been working towards this goal for more than 4 weeks,”

it Was “time to bring this project to a close.” Dkt. 41-2 at 1. Presumably reflecting the ongoing

nature of the project, Youngblood emailed Thomas, once again, several weeks later asking

“[w]here are we on updating the dashboard numbers” and, once again, stressing the “vital”

nature of the task and cautioning that it “must not fall behind again.” Dkt. 41-3 at l. But,

notwithstanding concerns about timing, the work by Thomas’s team was well»received. In mid-

October 2012, Youngblood commended the HR team for its “[g]reat work,” and a DYRS analyst

“congratulate[d]” Thomas and her “team for the AWESOME job” they were “doing updating”

the database. Dkt. 34-1 at 5-6.

Thomas’s supervisors also expressed concern about her team’s work with DYRS

employees and candidates for open positions. In August of 201 2, a member of Thomas’s team

inadvertently included a document containing confidential personnel information about one

DYRS employee in a packet meant for another DYRS employee. See Dkt. 41-7 at 1-6. After

this mistake was discovered, Youngblood assured the director of the D.C. Department of Human

Resources that she had “spoken to . . . Thomas[] about this serious oversight”; that “Thomas

w[ould] be issuing a letter of admonition to” the offending team member; that “Thomas w[ould]

. . . put in place safeguards to ensure [that] this kind of error does not happened in the future”;

and that Thomas would call the employee who received the confidential information “to

apologize for the error and to reassure her of the safety and security of her medical information.”

Dkt. 41-7 at 1. Similarly, two months later, the same member of Thomas’s team sent a

document meant for clearance by DYRS’s lawyer directly to the recipient, a “mishap” that

Youngblood wrote Was “very concerning.” Dkt. 41-8 at l. Youngblood informed Thomas that

Stanley’s document management “instructions were clear,” and, although it was the team

member who mistakenly sent the document, "the responsibility l[ay] with [Thomas] because the

assignment [had been] given to [her] for completion.” Ia’. And, in yet another email,

Youngblood informed Stanley that she had “talked with . . . [Thomas] about [her] failure to

provide adequate contact and follow-up with respect” to an employment candidate Dkt. 41-6 at

1.

Finally, another exchange of emails between Youngblood and Thomas revealed tension

between Thomas and her supervisors. In that exchange, Youngblood asked Thomas to remove

an “[un]authorized” job posting, and Thomas responded that she had “discussed this” posting

with Stanley. Dkt. 41-10 at 2. Thomas further told Youngblood that she would “not go back and

forth” and that “[Stanley’s] directive will be followed.” Id. A few moments later, Youngblood

responded:

This isn’t a back and forth. As your supervisor I am requesting additional

information; and if I request additional information I expect you to provide it to me.

Your email below is hovering very close to insubordination I would advise you to

take care to monitor your tone in all communications

Id. at 1. Thomas replied that she was “not sure how [her] email was interpreted as borderline

insubordination” when she had ultimately “agreed to pull down the vacancy” and noted that her

“email tone [w]as stemming from a place of frustration” with “receiving urgent directives from

upper level management” that were “later retracted.” Id.

B. Thomas’s Relationship with Stanley

Early in Thomas’s tenure at the agency, Stanley complimented Thomas’s work and told

her that “we’re glad you’re here.” Dkt. 33-9 at 47-48, 127~128 (Pl.’s Dep.); Dkt. 34-1 at 1, 3.

Over the course of her employment, however, Thomas came to see Stanley as “very

intimidating” and “very hostile” and, as she explained, her “face to face” meetings With him

“[were]n’t always positive.” Dkt. 33-9 at 48 (Pl.’s Dep.). At times, Stanley wanted Thomas to

“bypass certain processes” to recruit new employees and, when Thomas informed him that the

agency could not do so, Stanley would “yell[]” and tell her, “l don’t care, get it done.” Id. at 51

(Pl.’s Dep.). At other times, Thomas alleges, Stanley “would give [her] [an assignment]” but

“wouldn’t give [her] an opportunity” to complete the necessary work before “calling [her]” to

check in on the status of the assignment Ia’. at 65 (Pl.’s Dep.).

Tensions also arose when Thomas briefly experimented with an alternative work

schedule While working from home on her alternative schedule, Thomas received a call from

Stanley, who was “yelling about an employee Who did not receive [his or her] reassignment

letter."’ Id. at 60-63 (Pl.’s Dep.). After Thomas confirmed that the employee had, in fact,

received the letter, Stanley “recommended that [Thomas] stop” using an alternative work

schedule and that she “focus on building [her] HR department.” Id. at 62-63 (Pl.’s Dep.).

Thomas, in turn, told Stanley that she was on her first day under the alternative work schedule

and that her then-supervisor, Chris Shorter, had approved the schedule. Id. at 64 (Pl.’s Dep.).

From there, the conversation turned even more confrontational. According to Thomas, Stanley

asked her if she “was . . . happy working at DYRS,” and Thomas responded that, although she

was happy working there, she was “not happy with [Stanley’s] aggressive approach towards

[her] to resolve issues.” Id. Faced with this “frank” statement, Stanley told Thomas: “Well, you

know, you know who I am. I’m the director, and I can ask . . . any questions. Just take the rest

of your day[,] and I’ll see you tomorrow.” Id. Following that incident, Thomas gave up her

alternative work schedule. Id. at 68_69 (Pl.’s Dep.).

Thomas also alleges that, while she was on sick leave in July 2012, Stanley “called [her]

at home and inquired about a hiring action that was already completed.” Id. at 74-75 (Pl.’s

Dep.). After Thomas explained that she had already sent Stanley an email about the action,

Stanley asked Thomas if she was “okay.” Id. at 75 (Pl.’s Dep.). Thomas told him that, in fact,

she “wasn’t feeling well and was stressed out.” Id. Stanley then said, “I want you to take a few

days off before . . . Youngblood starts,” so you will not “have a stale attitude before she comes

on board.” Id. Taking this comment as an unwarranted reprimand, Thomas simply repeated

Stanley’s words-_“stale attitude”-and “told him good bye.” Id. Rather than run the risk that

Stanley would reverse course and hold it against her, Thomas decided not to take any additional

time to recover. Id.

ln yet another unpleasant interaction, Thomas alleges that Stanley called her on her

“office phone in August 2012" and told her “to keep [her] staff from documenting too much in

writing.” Id. at 90 (Pl.’s Dep.). Thomas responded that extensive documentation was necessary

in light of the “many pending legal actions” against the agency. Id. Unsatisfied, Stanley “yelled

at” Thomas and told her to “stop emailing so much information.” Ia'. at 91 (Pl.’s Dep.). To

avoid further conflict with Stanley on this issue, Thomas instructed her staff to “use the memo-

to-file approach” and to “minimize how much they put in” email. Id. at 93 (Pl.’s Dep.).

From all of this, Thomas concluded that Stanley did not like the fact that she asked

questions about how he was treating her and that he did not like her “push back.” Id. at 125

(Pl.’s Dep.). In her view, he was “aggressive towards” her7 while she was frank in telling him

that she did not “like how” he spoke to her. Id. at 124~25 (Pl.’s Dep.). In Thomas’s view,

Stanley saw her push back as insubordination, and he saw her commitment to “abid[e] by policy

and procedures” as ineffectiveness and “as being negative.” Id. at 127 (Pl.’s Dep.). Ultimately,

Thomas recognized that Stanley “started putting [her] under . . . heat, some serious heat,” id. at

128 (Pl.’s Dep.), and observed that their “relationship . . . went downhill,” id. at 131 (Pl.’s Dep.).

C. The Office of Internal Integrity Investigation

Thomas learned that she was the subject of an investigation by the Off`ice of Internal

Integrity (“OII”) in the “summer of 2012.” Id. at 147 (Pl.’s Dep.). The OII investigation Was

initiated on July 18, 2012, to look into allegations that Thomas: (1) “abus[ed] her power” by

“borrow[ing] money” from an employee she directly supervised; and (2) “retaliate[ed] against”

that employee by writing a letter of admonishment after the employee asked Thomas to repay the

loan. Dkt. 33-10 at l (OII Report); Dkt. 26-2 (Def.’s SUMF 11 3).

ln the course of its investigation, the Oll interviewed several DYRS employees and

determined that Thomas had “allowed [the employee] to pay a registration fee for her and her

husband” to attend a spiritual workshop. Dkt. 33-10 at 4, 10. Because Thomas and her husband

“did not attend the workshop,” Thomas informed the OIl investigator that she felt, at first, that

“she did not have to repay” the employee,” id. at 4, but, after receiving an email from the

employee requesting repayment, she decided to repay the $80 fee, id. at 4-5, 9-10. The Oll also

found that the day before Thomas repaid the loan, the employee in question had left the DYRS

office with the keys to a file cabinet, which prevented the human resources office “from being

able to access certain files . . . that were urgently needed.” Id. at 9. At Thomas’s directive, the

011 noted, the employee was admonished for this mishap. ld. at 11.

“Based on the evidence gathered during [the] investigation,” the Oll concluded that

Thomas had violated a District ethics rule that prohibited an employee from "accept[ing] a gift

from an employee receiving less pay than . . . herself,” and it thus substantiated the first

allegation against Thomas. Ia'. at 10, 12. The Oll investigation also determined, however, that

the letter of admonishment that Thomas gave to the employee was based on an unrelated

performance issue and was not connected to the employee’s efforts to obtain repayment of the

$80 loan she had made to Thomas. Idw at 10. The Oll, accordingly, “d[id] not find any evidence

that would substantiate [the employee’s] allegation that [Thomas] retaliated against her.” Id. at

11-12. OII Officer “Walter Howell forwarded the completed investigation report to Ms.

Youngblood” on October 19, 2012. Dkt. 26-2 (Def.’s SUMF 11 7).

D. Thomas’s Request for Medical Leave

ln August of 2012, Thomas began “experiencing severe abdominal pain, severe

_ and [related] fatigue.” Dkt. 26-3 at 10. Her doctor diagnosed her with

_ Id. at 11. After consultation with her doctor, Thomas decided to

undergo a surgical procedure _, id, , and because the surgery would

necessitate an eight-week recovery period, she met with Youngblood to discuss when she should

schedule the procedure, id.; see also Dkt. 33-9 at 113 (Pl.’s Dep.).l

At that meeting, Thomas asked if she should schedule the surgery for before or after

Christmas. Youngblood responded that, because the “holidays normally . . . are a little slow,”

Thomas should try to have the surgery done before “the end of [the] year’7 so she could return to

the office “fresh.” Dkt. 33-9 at 113 (Pl.’s Dep.). Youngblood further instructed Thomas to

apply for medical leave by “fill[ing] out the information for FMLA approval” and “provid[ing]

the packet to the FMLA Coordinator" for processing Dkt. 26-3 at 11; Dkt. 33-9 at 112-13 (Pl.’s

Dep.). Thomas did so, requesting both “intermittent” leave that would allow her “to call out and

stay home” should she experience acute symptoms prior to the surgery, and “continuous” leave

that would allow her to take time off to “recover[]” from her surgery. Dkt. 33-9 at 114-15 (Pl.’s

Dep.). Youngblood approved Thomas’s FMLA request on October 1, 2012, granting Thomas

intermittent leave from September 27, 2012, to November 7, 2012, followed by a continuous

1 The Court filed a sealed version of this Memorandum Opinion on December 22, 2016, in order

to provide the parties with an opportunity to identify any portions of the Opinion that they

believed contained sensitive personal information that should be redacted from the publicly filed

version. The Court concludes that, even in light of “the public’s interest in access to judicial

information,” the clauses redacted in the previous two sentences reflect the sort of personal

information in which Thomas maintains a “significant privacy interest.” John Doe Co. No. ] v.

CFPB, No. 15-cv-1177 (RDM), 2016 WL 3390677, at *4 (D.D.C. June 15, 2016) (intemal

quotation marks omitted). These limited redactions “maximize[] the amount of information

available to the public while still protecting the privacy interest [Thomas] assert[s].” Id. (internal

quotation marks omitted); see also United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir.

1980).

block ofleave from November 8, 2012, to December 31, 2012.2 Dkt. 26-3 at 11-12; Dkt. 33-7 at

1-7; Dkt. 26-2 (Def.’s SUMF 11 5).

E. Thomas’s Termination

While in the office for emergency planning sessions related to Hurricane Sandy in late-

October 2012, Youngblood and Thomas had a conversation about the “personality conflict”

between Thomas and Stanley. Dkt. 33-9 at 119-20 (Pl.’s Dep.). During that conversation,

Youngblood “alluded” to the fact “that [Stanley] wanted something different.” Id. at 124 (Pl.’s

Dep.). Thomas asked Youngblood if she should “look[] for a job while . . . out on [medical

leave],” and Youngblood responded, “Yes.” Id. at 120 (Pl.’s Dep.). As Thomas further

explained in her deposition, Youngblood told her that Stanley did not like the fact that she

pushed back against him. Id. at 125 (Pl.’s Dep.). This did not come to Thomas as a surprise in

light of her earlier conversation With Stanley, when he referred to Thomas’s “stale attitude.” ld.

at 126-27 (Pl.’s Dep.).

The next week, Youngblood once again spoke with Thomas. Youngblood explained that

she wanted to make the previous week’s conversation “a little bit more formal,” and she

presented Thomas with a letter of termination Id. at 120-21 (Pl.’s Dep.). During their

conversation, Youngblood discussed the OII investigation and the one substantiated allegation,

id. at 142 (Pl.’s Dep.), but, when Thomas asked if she was “being fired . . . for cause,”

Youngblood explained that the termination was not “for cause” and that Thomas, accordingly,

2 Although part of Thomas’s responsibilities “normally” included “approv[ing] all agency

FLMA packets,” because this packet pertained to Thomas’s own FMLA request, the packet was

sent to Youngblood for approval. Dkt. 33-9 at 114 (Pl.’s Dep.). Thomas explained that

“[d]uring [her] tenure, no employees were separated during FMLA leave approval,” Dkt. 26-3 at

13; Dkt. 33-9 at 146~47 (Pl.’s Dep.), and that no one had ever pressured her to “fire somebody

because they Were on FMLA leave,” Dkt. 33-9 at 147 (Pl.’s Dep.); see also Dkt. 26-2 (Def.’s

sUMF 1111 9_10).

10

would receive severance pay, id. at 135-36 (Pl.’s Dep.). According to Thomas’s deposition,

Youngblood then added, “[w]e could have terminated you for this, but we’re not” doing so. Id.

at 142-43 (Pl.’s Dep.). Youngblood did not elaborate, however, on what she meant by that

statement Ia’. at 143 (Pl.’s Dep.). This ambiguity is repeated in Thomas’s interrogatory

response, where she asserts that Youngblood stated that Thomas “was not being terminated for

cause or because of the investigation.” Dkt. 26-3 at 13.

Thomas’s termination letter was dated November 1, 2012, falling in the middle of her

FMLA intermittent leave period and roughly one week before she was to begin her continuous

FMLA leave period. Dkt. 33-7 at 8-9. The letter of termination contains no statement of

reasons but, rather, merely states that Thomas’s employment was “at-will” and that her

termination was “neither grievable nor appealable.” la’. at 8. Although Thomas was given the

mandatory 15 days’ notice of termination, she was placed on immediate administrative leave

during the notice period. Id. Consistent with Youngblood’s representations, Thomas was

allowed to receive severance pay, along with “any unused annual leave.” Id. Her employment

with DYRS, however, came to an end before her FMLA leave would have expired at the end of

December 2012.

On October 8, 2013, Thomas filed this suit under FMLA and DCFMLA7 alleging that the

District interfered with her ability to take medical leave and terminated her employment in

retaliation for her request to take medical leave. See Dkt. 1. The District moves for summary

judgment on Thomas’s interference and retaliation claims, and Thomas cross-moves for

summary judgment on her interference claims. See Dkts. 26, 36.

ll

II. LEGAL STANDARD

Summary judgment is appropriate when “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 Ana'erson v. Liberty Lobl)y, Inc., 477 U.S. 242, 247-48 (1986). “A fact

is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute

about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.’” Steele v. Sclzafer, 535 F.3d 689, 692 (D.C. Cir. 2008)

(quoting Liberty Lobby, 477 U.S. at 248) (emphasis added). “Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Liberty Lobby, 477 U.S. at 255. Accordingly, “[t]he evidence

of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

la’.

To defeat a Summary judgment motion, however, the nonmoving party must offer more

than “a scintilla of evidence,” id. at 252, or mere “speculation,” Hutchinson v. CIA, 393 F.3d

226, 229 (D.C. Cir. 2005), in support of her position. lnstead, the non-moving party must set

forth “specific facts showing that there is a genuine issue for trial,” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (internal quotation marks omitted), which means that the non-moving party

must point to “evidence on which the jury could reasonably find” for her side, Liberty Lobby,

477 U.S. at 252. “In essence, . . . the inquiry [is] . . . whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Ia'. at 251-52.

12

III. ANALYSIS

Under “certain circumstances7 the FMLA and its DC counterpart, the DCFMLA, grant an

employee the right to take temporary medical leave from employment, without the threat of, or

actual termination from her job.” Dorsey v. Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 33

(D.D.C. 2010). The FMLA, for example, allows an “eligible employee” to take a “total of 12

workweeks of leave during any 12-month period” because of “a serious health condition that

makes the employee unable to perform the functions of the position,” 29 U.S.C. § 2612(a)(1)(D),

while the DCFMLA permits an employee to take a total of “16 workweeks” of medical leave

over “any 24-month period,” D.C. Code § 32-503(a).

“The FMLA creates two types of claims: interference claims, in which an employee

asserts that his employer denied or otherwise interfered with his substantive rights under the Act,

see 29 U.S.C. § 2615(a)(1), and retaliation claims, in which an employee asserts that his

employer discriminated against him because he was engaged in activity protected by the Act, see

29 U.S.C. § 2615(3)(1) & (2).” Hopkins v. Granl Thornton Int’l, 851 F. Supp. 2d 146, 152

(D.D.C. 2012) (quoting Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239

F. 3d l 199, 1206 (11th Cir. 2001)). Although “the text of the FMLA does not clearly label these

two claims as ones for ‘retaliation’ and ‘interference,’ ‘those are the labels courts have used in

describing an employee’s conduct under the Act.”’ ]cl. at 152 n.6 (quoting Strickland, 239 F.3d

at 1207 n.9). “Claims under the DCFMLA similarly include claims for interference and claims

for retaliation,” Alford v. Provia'ence Hosp., 945 F. Supp. 2d 98, 105 (D.D.C. 2013) (citing D.C.

Code § 32-507(a) (interference) and D.C. Code § 32-507(b)(1) (retaliation)), and courts regularly

analyze both the FMLA and the DCFMLA under the same legal framework, see, e.g., id. at 105-

08; Thomas v. District ofColumbia, No. l4-cv-335 (APM), 2016 WL 3919822, at *4 (D.D.C.

13

July 18, 2016) (recognizing that “DCFMLA’s theories of recovery parallel the FMLA’s”). For

present purposes, moreover, the parties agree that the same legal analysis applies to both the

FMLA and the DCFMLA. See Dkt. 26-1 at 4; Dkt. 33-1 at 11. The Court, accordingly, treats

Thomas’s FMLA and DCFMLA claims together, and for the sake of simplicity, refers only to the

FMLA in the remainder of this opinion.

The Court will first address Thomas’s retaliation claims and will then turn to her

interference claims.

A. Retaliation Claims

Under the FMLA, the “prohibition against interference prohibits an employer from . . .

retaliating against an employee . . . for having exercised or attempted to exercise FMLA rights.”

29 C.F.R. § 825.220(0).3 “[E]mployers cannot,” for example, “use the taking of FMLA leave as

3 There is some disagreement in this district regarding whether a retaliation claim of this type

arises under § 2615(a)(1) or (a)(2). Compare Elzeneiny v. District of Columbia, 2016 WL

3647838, at *5-8 (D.D.C. July 1, 2016) (analyzing an FMLA interference claim under

§ 2615(a)(1) and an FMLA retaliation claim under § 2615(a)(2)), with Hopkins, 851 F. Supp. 2d

at 152 (noting that § 2615(a)(1) covers both retaliation and interference claims, and using “the

term retaliation” to “describe prohibited . . . retaliatory conduct under the Act, whether it is under

§ 2615(a)(l) or § 2615(a)(2)”). In Roseboro v. Billington, for example, the court describes a

“retaliation claim under § 2615(a)(2)” as a claim “in which the employer has taken adverse

action against the employee because the employee took leave or otherwise engaged in activity

protected by [FMLA].” 606 F. Supp. 2d 104, 107-08 (D.D.C. 2009). But the text of

§ 2615(a)(2) is not so broad; it states only that it “shall be unlawful for any employer to

discharge . . . any individual for opposing any practice made unlawful by this subchapter”

(emphasis added). ln the Court’s view, § 2615(a)(2) applies only in cases in which an employer

takes some adverse action against an employee based on the employee’s opposition to a practice

made unlawful by the FMLA. In contrast, in cases_like this one_in which the employer is

alleged to have taken some adverse action against the employee based on the employee’s

exercise of her rights under the FMLA, the claim arises under § 2615(a)(1), which bars

employers from interfering with the exercise of rights protected under the FMLA. See Bachelder

v. Am. West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) (“By [its] plain meaning, the anti-

retaliation . . . provision[] do[es] not cover visiting negative consequences on an employee

simply because he has used FMLA leave. Such action is, instead, covered under § 2615(a)(l),

the provision governing ‘lnterference [with the] Exercise of rights.”’). For present purposes,

however, it is sufficient to note that neither party disputes that_whether premised on

14

a negative factor in employment actions, such as . . . disciplinary actions.” Ia'. Thomas alleges

that the District did just that, terminating her employment with DYRS “in retaliation for

ex[er]cising and/or attempting to ex[er]cise her right to take approved leave” under the FMLA.

Dkt. 1 (Compl. 1111 56, 67). The District, in contrast, argues that Thomas was “tenninated for

,, “

legitimate, non-retaliatory reasons”: an “ethical violation, personality conflicts” with her

supervisor, and “work performance issues.” Dkt. 26-1 at 4, 7.

In analyzing FMLA retaliation claims, “courts apply the burden-shifting framework

adopted in McDonnell Douglas Corp. v. Green, 41 l U.S. 792 (1973).” Roseboro, 606 F. Supp.

2d at 109. Under that framework, an “employee may establish a prima facie case creating a

presumption of retaliation” by showing “(1) that he exercised rights afforded by the [FMLA], (2)

that he suffered an adverse employment action, and (3) that there was a causal connection

between the exercise of his rights and the adverse employment action." Id. (internal quotation

marks omitted). If the employee makes this prima facie showing the employer may overcome

the presumption of retaliation by “producing evidence of a legitimate, non-discriminatory reason

for its action.” Ia'

Once an employer has proffered some legitimate non-retaliatory reason for its action,

however, “the district court need not_anal should not_decide whether the plaintiff actually

made out a prima facie case under McDonnell Doziglas.” Braa’y v. Office of Sergeant at Arms,

520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original).4 Rather, the “central question at

§ 2615(a)(1) or (a)(2)_the FMLA bars an employer from terminating an employee merely

because the employee has, or has attempted to, exercise her right to take FMLA leave.

4 Although Brady and other cases cited below involve claims arising under Title Vll, the D.C.

Circuit has held that the “analytical framework for [a] claim of retaliation” under FMLA is “the

same as that applicable to a claim of discrimination under Title Vll.” McFadden v. Ballard

Spahr Andrews & Ingersoll, LLP, 611 F.3d l, 6 (D.C. Cir. 2010).

15

summary judgment becomes whether the employee produced sufficient evidence for a

reasonable jury to find that the employer’s asserted . . . non-retaliatory reason was not the actual

reason and that the employer intentionally . . . retaliated against the employee.” Walker v.

Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (internal quotation marks omitted). “A plaintiff

opposing summary judgment may raise an inference that the employer’s purpose was retaliatory

by pointing to evidence attacking the employer’s proffered reasons, together with other evidence,

if any, suggesting that retaliation was the real reason.” Allen v. Johnson, 795 F.3d 34, 39-40

(D.C. Cir. 2015). Whether “the available evidence suffices to support a jury finding of

retaliation will, necessarily, be a contextual judgment.” Id. at 40.

Here, there is no dispute that Thomas has made a prima facie showing of retaliation or,

more importantly, that the District has responded to that showing by proffering three non-

retaliatory reasons for Thomas’s termination See Dkt. 26-1; Dkt. 33-1 at 2. As a result, the crux

of the issue before the Court is whether Thomas has demonstrated that there is a genuine dispute

of material fact about whether those stated grounds are pretextual and whether the District, in

fact, fired Thomas because she took, or sought to take, FMLA leave. See Roseboro, 606 F.

Supp. 2d at 109. ln an effort to make this showing, Thomas takes two tacks: First, she seeks to

undermine the District’s stated rationales for her termination by claiming that the “excuses

postulated . . . lack credibility and are pretext,” see Dkt. 33-1 at 2, 14-25, and second, she

highlights other facts that, she suggests, show that the District retaliated against her for taking

FMLA leave, see id. at 28-32.

1. The District ’s Projj’ered Reasons for Thomas ’s Terminaiion

The District proffers three “legitimate, non-discriminatory reasons” for Thomas’s

termination Dkt. 26-1 at 7, 9. First, the District highlights Thomas’s “work performance

16

issues"' and the negative feedback she received from her DYRS supervisors Id. at 2, 7; see also

Dkt. 40 at 8-11. Next, it argues that Thomas and DYRS Director Stanley “had personality

conflicts” that led to Thomas’s termination Dkt. 26-1 at 2, 5-7. Finally, the District points to

the results of the Oll investigation and claims that Thomas’s “lack of judgment in accepting a

loan from a subordinate, which was clearly against [DYRS’s] ethics policy[,] . . . was sufficient

reason to terminate [Thomas’s] employment.” Dkt. 26-1 at 5. Thomas contends that all three

asserted reasons for her termination are pretextual.

ln the ordinary course, a plaintiff alleging that her employer acted for unlawful,

retaliatory reasons may avoid summary judgment by identifying evidence from which a

reasonable jury could find that her employer’s proffered, lawful reasons for acting “were

pretextua ,” Carpenter v. Fed. Nat’[ Mortg. Ass ’n, 165 F.3d 69, 72 (D.C. Cir. 1999), or, in other

words, “unworthy of credence,” Texas Dep ’l of Cmty. Ajfairs v. Burdine, 450 U.S. 248, 256

(1981). “Showing pretext, however, requires more than simply criticizing the employer’s

decisionmaking process."’ Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014). lt is

not sufficient to “show that a reason given for a job action [was] not just, or fair, or sensible,” nor

is it sufficient to challenge “the correctness or desirability of [the] reasons offered.” Fischbach

v. D.C. Dep ’t ofCorr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal quotation marks omitted).

The plaintiff must show_or, at summary judgment, must identify evidence from which a

reasonable jury could find_that her employer’s stated reasons were “phony.” Id. Based on the

record before the Court, however, the Court concludes that no reasonable jury would find that

the District’s stated justifications for Thomas’s termination were pretextual

As an initial matter, the Court notes that the fact that the termination letter that DYRS

provided to Thomas contained no explanation for the office’s action does not preclude the

17

District from offering reasons now. A plaintiff can, of course, “meet his burden of proving

pretext with evidence that ‘the employer’s explanation was fabricated after the fact by showing

that it contradicts other contemporaneous accounts of the employer’s decision.” Francis v. Dist.

ofColumbia, 731 F. Supp. 2d 56, 72 (D.D.C. 2010) (quoting Aka v. Wash. Hosp. Center, 156

F.3d 1284, 1295 (D.C. Cir. 1998)). But “[a]n employer need not explain its reasons for firing an

at-will employee without cause,” and the fact that “it eventually does so during discovery does

not establish pretext.” Ia'. (citing Bennett v. Chertoff, 425 F.3d 999, 1002-03 (D.C. Cir. 2005)).

Nor does the fact that Youngblood offered a less than complete explanation for terminating

Thomas during their November 2012 conversation establish pretext. Youngblood “alluded to”

the fact that Stanley “wanted something different,” Dkt. 33-9 at 124 (Pl.’s Dep.), and

Youngblood and Thomas discussed the difficulties that existed between Thomas and Stanley, ia'.

at 119-20, 124-27 (Pl.’s Dep.). Youngblood also provided Thomas with a copy of the OII

investigation report and told her that one of the allegations had been substantiated Ia'. at 121,

142 (Pl.’s Dep.). And, although Youngblood indicated that Thomas was not being “fired for

cause,” she did not “go into details.” Ia'. at 143 (Pl.’s Dep.). Thomas questions much of this, and

she challenges the credibility of the reasons the District offers in support of its decision to end

her employment But she points to no evidence suggesting that the District ever purported to

provide a full explication of the reasons for its action in either the termination letter or in the

course of Thomas’s conversations with Youngblood.

Instead, Thomas focuses much of her argument on perceived weaknesses in each of the

three rationales on which the District now relies:

18

(a) Work Performance and Personalitv Conflict

The District’s first two asserted non-retaliatory reasons for ending Thomas’s employment

are closely related_it contends that Thomas’s work performance was deficient and that she did

not get along with her ultimate supervisor, Neil Stanley. As to each, Thomas has failed to carry

her burden of identifying evidence from which a reasonable jury could find pretext.

Thomas first argues that the District has failed to offer any “written documentation” of

these “alleged performance deficiencies and/or ‘personality conflicts with . . . Stanley [that]

would have been reason for terminating . . . Thomas.” Dkt. 47 at 4. That is not correct. With

respect to the asserted performance deficiencies, it is true that Thomas did not receive negative

reviews in any formal evaluations, Dkt. 33-1 at 7 (citing Dkt. 33-9 at 132 (Pl.’s Dep.)), and it is

true that she, at times, received compliments on her work, Dkt. 33-1 at 4 & n.2 (citing Dkt. 34-1

at 1~6). But the District has, in fact, produced evidence that Thomas’s work, and the work of

those she supervised, was subject to criticism in the months preceding her termination

Youngblood emailed Thomas on multiple occasions, for example, about missed deadlines and

incomplete assignments5 There is evidence that Thomas and another employee “fail[ed] to

provide adequate contact and follow-up with respect” to a job applicant.6 There is evidence that

5 See, e.g., Dkt. 41-1 at 1 (Youngblood to Thomas, August 29, 2012: “Have you made any

progress on completing the file for updating the dashboard? At this point we are more than a

week behind on our expected delivery date.”); Dkt. 41 -3 at 1 (Youngblood to Thomas, October

30, 201 21 “Where are we on updating the dashboard numbers? This is a vital task that must not

fall behind again.”); Dkt. 41-5 (Youngblood to Thomas, October 19, 2012: “By the way, you

previously advised that a draft of the PD would be provided by COB yesterday but it was not

delivered. When will I receive the updated PD?”); see also Dkt. 41-4 at 1 (Sinks email,

September 21, 2012: “l have requested this information from Ms. Thomas several times. l was

informed that l would receive the information by our deadline of September l7th, but l have still

not received it after repeated requests.”).

6 See Dkt. 41-6 at 1 (Youngblood to Stanley, October 24, 2012).

19

a member of Thomas’s staff mistakenly placed a confidential personnel document of one

employee inside a mailing to another employee_an oversight that required Thomas to “call” and

“apologize for the error,”7 and that that same staff member accidentally forwarded a document

that was meant for DYRS’s counsel directly to an employee, a “mishap [that] [wa]s very

concerning” to Youngblood.8 With respect to the last of these errors, moreover, Youngblood

made clear that she held Thomas responsible “because the assignment [had been] given to

[Thomas] for completion.”9 Finally, just three days before her termination, Thomas sent a

memorandum to the “DC Department of Human Resources” responding to a “compliance audit”

of her office in which she admitted to “errors” made by “DYRS Human Resources” that

stemmed from a “lack of knowledge and understanding” by members of her staff. Dkt. 41-11 at

1-2.

Thomas is on even weaker ground in arguing that the District has failed to offer

documentation of the asserted interpersonal clashes between her and Stanley. Dkt. 47 at 4. If

she means by this that there is no proof of these clashes, the Court need look no further than her

own deposition to disagree She testified, for example, that Stanley yelled at her on a number of

occasions, see, e.g., Dkt. 33-9 at 61~62, 91 (Pl.’s Dep.); that he suggested that Thomas had a

“stale attitude,” id. at 75 (Pl.’s Dep.); and that their “face to face” meetings “[were]n’t always

positive,” id. at 48 (Pl.’s Dep.). More significantly, she testified that she “push[ed] bac ” at

times and that Stanley did not like it when she did so. Id. at 125, 127 (Pl.’S Dep.). One

conversation, for example, devolved to a point at which Stanley asked Thomas whether she “was

7 See Dkt. 41-7 at 1~2 (Youngblood correspondence with Shawn Stokes, August 31, 2012).

8 See Dkt. 41-8 at 1~2 (Youngblood to Thomas, October 12, 2012).

9 See id. at 1.

20

happy working at DYRS,” and she answered that, while she liked her job, she was “not happy

with [Stanley’s] aggressive approach towards [her].” Id. at 64 (Pl.’s Dep.). Stanley, in turn,

responded, “Well, you know, you know who l am. l’m the director, and l can ask . . . any

questions.” Id. As Thomas apparently recognized, this was not a healthy relationship. See, e.g.

id. at 48_49 (Pl.’s Dep.) (“l’ve had meetings where l’ve cried in meetings because he’s very

intimidating His approach is very hostile[.] . . . He pretty much talked to me like l was

nothing[.]"’).

Rather than disputing the existence of these clashes, Thomas is perhaps better understood

to maintain that it was Stanley who was out of line and that he answered her legitimate desire “to

abide by HR policies and procedures,” Dkt. 33-1 at 16, with inappropriate hostility and unduly

aggressive behavior, Dkt. 33-9 at 90~93, 127 (Pl.’s Dep.). lt was Stanley who developed a “hit

list” of those employees who pushed back in response to his demands Id. at 127 (Pl.’s Dep.). lt

was Stanley, in Thomas’s view, who had a poor management “style,” who “degrade[d] other

employees in meetings,” id. at 48 (Pl.’s Dep.), who was subject to criticism by “several

employees, including managers,” for his “hostile leadership approach, id. at 94 (Pl.’s Dep.), and

who drove others from DYRS due to his “hostile approach,” ia'. at 95 (Pl.’s Dep.). But, even if

accurate, these assertions miss the point. The relevant question is not whether Stanley was a

difficult boss who unfairly clashed with Thomas over proper adherence to HR policies, but

whether Thomas was terminated for seeking to exercise her FMLA rights The contention that

Stanley was aggressive and overbearing does not show that the District’s proffered, non-

retaliatory reason for Thomas’s termination is pretextual, but rather, if anything, strengthens the

District’s position that Thomas was fired for reasons unrelated to the FMLA.

21

Nor is the absence of official documentation of Thomas’s performance deficiencies or

clashes with Stanley sufficient to establish pretext. Dkt. 47 at 4~5. Thomas is correct that an

“employer’s failure to follow established procedures or criteria” can, at times, support a finding

of pretext. Braa'y, 520 F.3d at 495 n.3. She has failed to demonstrate, however, that DYRS Was

required to take these steps before ending her employment As a member of the Manageinent

Supervisory Service ("MSS”), Thomas was an at-will employee D.C. Code § 1-609.54; see also

Dkt. 33-9 at 132 (Pl.’s Dep.); Dkt. 26-2 (Def.’s SUMF 11 2). Members of the MMS are, in

general, subject to chapter 14 of the D.C. personnel regulations, which, among other things,

require a supervisor to prepare a performance improvement plan “when employee performance

has been observed by the supervisor as being deficient.” D.C. Mun. Regs. Tit. 6-B § 1410.4.

But they are not subject to chapter 16, which governs adverse employment actions, including

termination actions due to failure to meet the requirements of a performance improvement plan

Ia'. § 1600.3(g) (2012).

Moreover, even if the District failed to follow its own regulations that omission standing

alone "‘may not be sufficient to support’ the conclusion that [DYRS’s] explanation for the

challenged employment action [Was] pretextual.” Fischbach, 86 F.3d at 1183 (quoting Johnson

v_ Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982)). Given Thomas’s status as an at-will employee,

no reasonable jury could conclude that DYRS’s failure to engage in performance counseling or

to issue a performance improvement plan was “an error too obvious to be unintentional.” Id. To

the contrary, even if the District could have done a better job of documenting Thomas’s

performance issues, could have provided her with more formal notice of the need for

improvement, and could have done more to document her clashes with Stanley, she was an at-

will employee who was provided with actual notice of concerns as they arose Indeed, the record

22

before the Court reflects that Thomas received multiple emails from her supervisor timely raising

performance-related issues, see, e.g., Dkt. 41-1 at 1; Dkt. 41-2 at l; Dkt. 41-3 at 1, Dkt. 41-5 at

1; Dkt. 41-8 at 1, and Thomas concedes that she was not surprised when Youngblood told her

that Stanley did not like her or their interactions, Dkt. 33-9 at 126-27 (Pl.’s Dep.). And, most

importantly, there is no evidence whatsoever that the District’s real purpose was to retaliate

against her for taking FMLA leave. To the contrary, even when viewed in the light most

favorable to Thomas, what the record reveals is an unreasonable supervisor who did not like it

when his subordinates pushed back, even when they had good reason to do so, and a series of

performance criticisms, even if modest in nature and expressed with insufficient formality or

clarity. lt is not enough, however, to show that an employer was unfair, vindictive, or otherwise

unreasonable in its dealings with the plaintiff See Fischbach, 86 F.3d at 1183. What matters is

whether there is any basis to believe that the asserted non-retaliatory reasons for the employer’s

actions are false. Id. Here, there is not.

(b) OII lnvestigation Report

The District posits that Thomas was also fired in light of the Office of lnternal lntegrity’s

finding that Thomas violated a D.C. ethics rule by accepting a gift (or loan) from an employee

compensated at a lower level than she was. Dkt. 26-1 at 5; Dkt. 40 at 11-15. The OII

investigation was initiated in July of 2012_well before Thomas applied for FMLA leave-and

was not finalized until October 19, 2012-nearly three weeks after Youngblood approved

Thomas’s FMLA leave and less than two weeks before the District terminated her employment.

See Dkt. 33-10 at l; Dkt. 33-7 at 5-7. The investigation substantiated an allegation that

“Thomas allowed [a subordinate employee] to pay a registration fee for her and her husband and

later repaid [that employee], . . . a violation of the DYRS Employee Conduct Policy and the

23

corresponding District’s Ethics Policy.” Dkt. 33-10 at 10. Thomas argues that the District’s

reliance on the Oll investigation is pretextual for several reasons

As an initial matter, it is unclear whether a factual dispute about whether this one asserted

justification were pretextual would be sufficient to defeat the District’s motion for summary

judgment There is support for the proposition that a plaintiff must “demonstrate that each of

[her employer’ s1 proffered nonretaliatory reasons for the termination of [the plaintiff s]

employment was pretextual."’ Kirk v. Small, No. 03-5360, 2004 WL 1249294, at *l (D.C. Cir.

June 7, 2004) (mem.) (emphasis added); see also Brown v. Vance-Cooks, 920 F. Supp. 2d 61,

70~71 (D.D.C. 2013) (“Summary judgment should be granted for an employer where an

employee cannot demonstrate that every proffered nonretaliatory reason for the termination was

pretextual.”); Hairston v. Boardman, 915 F. Supp. 2d 155, 161 (D.D.C. 2013) (“To defeat a Title

Vll defendant’s summary judgment motion, a plaintiff must demonstrate pretext as to all of the

defendant’s proffered neural explanations, not just some of them.”); Hicks v. Gotbaum, 828 F.

Supp. 2d 152, 162 (D.D.C. 2011) (same). To be sure, that rule applies only where the

nonpretextual rationale, standing alone, “would have caused the [employer] to take the action of

which the plaintiff is complaining,” Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995),

and where the reasons are not “intertwined or pretext is [not] otherwise obvious,” Kl`rk, 2004 WL

1249294, at * 1. Here, pretext is not obvious, and, indeed, there is no direct or indirect evidence

that Thomas’s FMLA leave played any role in her termination lt is not entirely clear from the

present record, however, whether DYRS would have terminated Thomas based solely on her

performance deficiencies and conflicts with Stanley, even in the absence of the Oll’s findings

The District’s interrogatory responses hint at that conclusion, asserting that Thomas was

terminated for the performance and personality issues discussed above, and that,

24

“[a]ddiiionally,” she “was the subject of an internal investigation . . . , which . . . found that she

violated the District Employee Code of Ethics.” Dkt. 26-5 at 4 (emphasis added). Drawing all

reasonable inferences in favor of the nonmoving party, however, the Court cannot, at least on the

current record, foreclose the possibility that the ethics charge was “intertwined” with the other

asserted bases for terminating Thomas’s employment with DYRS. But, even if the three

rationales were, in fact, intertwined, there is no evidence that would allow a reasonable jury to

find that the District’s reliance on the ethics charge was pretextual

Thomas argues that “it is undisputed that [the District] did not terminate . . . [her] because

of the [OII] investigation[,] and therefore [the District’s] contention that the Oll investigation

provided a reason for her termination must fail." Dkt. 33-1 at 21. In support, Thomas relies on

two pieces of evidence: the District’s responses to her interrogatories id. at 21-22 (citing Dkt.

26-5 at 7), and her responses to the District’s interrogatories7 id. at 22 (citing Dkt. 26-3 at 13).

Neither submission however, would permit a reasonable jury to find that the Oll investigation

played no role in the decision to end Thomas’s employment with DYRS, and neither would

support a finding of pretext.

Nothing in the District’s interrogatory responses is at odds with its current contention that

the Oll investigation was one factor DYRS took into account in deciding to terminate Thomas

To the contrary, just as the District now argues, those interrogatory responses assert that Thomas

was “removed from her position” based on performance issues, her failure “to follow directives

from her superiors” and to “accept constructive feedback,” and the Oll investigation Dkt. 26-5

at 4. Rather than focus on this response, which was given to an interrogatory specifically

requesting the reasons for the District’s action, Thomas relies on an interrogatory seeking

support for the contention that Thomas “was disciplined as a result of the” Olls’ findings See

25

Dkt. 33-1 at 21_22 (quoting Dkt. 26-5 at 7 (emphasis added)). ln response, the District

explained that it was “not making any such contention although [Thomas] could have been

disciplined” based on the Oll findings Dkt. 26-5 at 7. The District further explained that,

“while [Thomas] was separated as an MSS at-will employee and not for cause, the substantiated

Oll investigation against her and other performance-related issues supported the District’s

decision to terminate [Thomas].” Id. The unmistakable import of these responses is that

Thomas was not subject to the type of disciplinary proceeding that would support a for-cause

removal and that, instead, she was removed at will, based on the dissatisfaction of her superiors

Thomas’s own deposition testimony bears this out. According to Thomas Youngblood

told Thomas that she was not being fired for cause and that, as a result, she would still qualify to

receive severance pay. Dkt. 33-9 at 135-36. That statement, in tum, was consistent with D.C.

personnel law, which precludes an award of severance pay to an employee terminated for

disciplinary reasons but allows such a payment for employees terminated at will. D.C. Code

§ 1-609.54(b). Reasonably construed, what the District conveyed in its interrogatory responses

and what Youngblood told Thomas was that Thomas was not subject to any formal discipline,

and she was not terminated for cause Rather, as an at-will employee, she was terminated at the

discretion of her supervisors

The conclusion that Thomas was not terminated “for cause,” however, does not mean that

she Was terminated “without reason.” Under D.C. personnel rules District employees that are

part of the “Career Service” can only be removed “for cause,” D.C. Code § 1-608.01(a)(13), and

the types of employee actions or transgressions that qualify as “for cause” are enumerated in the

D.C. regulations see D.C. Mun. Regs. Tit. 6-B § 1605.4. The parties agree7 however, that MSS

employees like Thomas are “at-will" employees and can be terminated for any reason, so long as

26

that reason is not otherwise illegal. See Dkt. 26-2 (Def.’s SUMF 11 2); Dkt. 33-9 at 132 (Pl.’s

Dep. 132) (“At-will means that you can be terminated at any time.”); see also D.C. Code § 1-

609.54. Here, the District has articulated its reasons for terminating Thomas and the fact that

Thomas was not subject to a disciplinary action or removed for cause does not cast doubt on the

veracity of those reasons

Thomas’s reliance on her own responses to the District’s interrogatories presents a

slightly closer question, but still fails to give rise to a genuine dispute of material fact. ln those

responses Thomas asserts that Youngblood informed her that she “was not being terminated for

cause or because of the investigation.” Dkt. 26-3 at 13 (emphasis added). Standing alone, the

second clause of this response might support a claim that Youngblood expressly disavowed the

argument that the District now makes_that is, that the Oll finding of an ethical breach was an

“additional[]” factor that DYRS weighed in deciding to end Thomas’s at-will employment. See

Dkt. 26-5 at 4. Thomas’s deposition testimony, however, clarifies what she contends was said_

and what was left unsaid_in her conversation with Youngblood. According to that testimony,

Youngblood came to Thomas’s office with “a folder in her hand.” Dkt. 33-9 at 120 (Pl.’s Dep.).

Youngblood reminded Thomas about the conversation that they had previously had, in which she

suggested that Thomas look for a new job, and Youngblood explained that she now wanted “to

make it a little bit more formal.” Id. Youngblood then opened the folder, which contained both

a termination letter and the Oll investigation report. Id. at 120~21 (Pl.’s Dep.). Thomas asked

whether she was “being terminated for cause,” and Youngblood said, “No, you’re not being

terminated for cause This is just a decision that the agency wants to make.” Id. at 122 (Pl.’s

Dep.); see also id. at 135-36 (Pl.’s Dep.) (“[l asked,] ‘Why am l being fired? ls this for cause,’

you know? And she said, ‘No, you’re not being terminated for cause.”’).

27

Later in her deposition, Thomas was again asked about her conversation with

Youngblood. At this point, Thomas acknowledged that Youngblood discussed the Oll’s findings

during their conversation and that Youngblood told her that “one part of the investigation was

substantiated.” Id. at 142 (Pl.’s Dep.). lt was in this context that Youngblood allegedly said,

“We could have terminated you for this but we’re not.” Id. at 142-43 (Pl.’s Dep.). And, finally,

when asked whether Youngblood “was . . . saying [that Thomas] could have been fired for cause

because of this but [DYRS was] not firing [her] for cause,” Thomas simply testified that

Youngblood “didn’t go into details.” Id. at 143 (Pl.’s Dep.).

Considered in this context, no reasonable jury could conclude that this conversation

between Youngblood and Thomas supports a finding that the District’s reliance on the OIl’s

findings was pretextual Youngblood went to Thomas’s office to tell her that she was fired. She

had two documents in hand_the termination letter and the Oll report. She explained to Thomas

that the Oll had found that she violated the D.C. ethics rules. Youngblood and Thomas

discussed the fact that Thomas would qualify for severance pay, which is unavailable when an

employee is discharged for cause And Thomas conceded at her deposition that Youngblood did

not “go into details” about what she meant when she told Thomas that they “could have

terminated” her for the ethical violation, “but we’re not.” Id. at 142-43 (Pl.’s Dep.). Although

inconsistency in an employer’s explanation for why it took an adverse action “may cast doubt on

the employer’s proffered reason,” Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013); see

also Reeves v. Sanderson Plurnl)ing Prods., Inc., 530 U.S. 133, 147 (2000) (“ln appropriate

circumstances the trier of fact can reasonably infer from the falsity of the explanation that the

employer is dissembling to cover up a discriminatory purpose.”), the relevant inquiry must focus

on Thomas’s testimony as a whole, and not on an isolated sentence or clause, see Lathan v.

28

Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (“[T]o survive summary judgment the plaintiff must

show that a reasonable jury could conclude from all of the evidence that the adverse employment

action was made for a discriminatory reason.”) (emphasis added). Here, considered in that light

and along with the other evidence before the Court, no reasonable jury could find (1) that

Youngblood went to Thomas’S office to fire her, brought along a copy of the Oll’s findings and

even summarized those findings for Thomas yet did so solely for the purpose of clarifying that

those findings had nothing to do with the decision to end Thomas’s employment; (2) that the

District subsequently resurrected the Oll findings as a third reason for terminating Thomas

knowing that Thomas was in fact, terminated for other reasons; and (3) that this deception

proves that Thomas was actually fired in retaliation for exercising her rights under the FMLA.

Thomas also challenges the Oll’s finding that she committed an ethical misstep, arguing

that there was “scant factual support” that she actually accepted a “gift” from a subordinate

employee Dkt. 33-1 at 22-23. Again, this argument misses the mark. The OII report notes that

Thomas in a “face-to-face interview,” admitted that she “reluctantly agreed to allow [the

subordinate employee] to pay the registration fees for her and her husband” and “felt that she did

not have to repay [the employee] because she and her husband did not attend the workshop.”

Dkt. 33-10 at 4. ln her deposition, Thomas claimed she never asked the employee to pay the fee,

see Dkt. 33-9 at 149~50 (Pl.’s Dep.), but she never challenges the Oll finding that she “agreed to

allow"' a subordinate employee to pay the fee, Dkt. 33-10 at 10 (emphasis added), and she admits

that “she reimbursed the money to avoid any workplace issues” Dkt. 33-1 at 24. But, more

importantly, even if the Oll’s finding is erroneous or unfair, “[t]he question is not whether the

underlying . . . incident occurred; rather, the issue is whether the employer honestly and

reasonably believed that the underlying . . . incident occurred.” Brady, 520 F.3d at 496. Here,

29

Thomas has presented no evidence to suggest that her supervisors had any reason to doubt the

validity of the Oll’s finding, nor has she shown that the report was so “egregiously wrong” or

“unsystematic and incomplete” that a reasonable jury could infer that DYRS’s reliance on it was

t.]O Burley v.

a ruse to hide its actual, unlawful reason for ending Thomas’s at-will employmen

Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).

Finally, Thomas’s efforts to cast doubt on the Oll investigation by asserting that she (or

one of her subordinates) was told by certain former employees that “the allegations were falsely

substantiated,” Dkt. 33-9 at 157 (Pl.’s Dep.), and that Stanley pressured the investigators “[t]o

close out the investigation,” id., amount to hearsay, double hearsay, and (possibly) even triple

hearsay. Although “a nonmovant is not required to produce evidence in a form that would be

admissible at trial, the evidence still must be capable of being converted into admissible

evidence” Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C.

Cir. 2000). Under this rule, “[o]nly that portion of a deposition that would be admissible in

evidence at trial may be introduced on [a summary judgrnent] motion,” 10A Charles Alan

Wright & Arthur R. Miller, Federal Practi`ce & Procedure § 2722 (4th ed. 2016), and because

Thomas’s “evidence about the conversation[s] is sheer hearsay[,] she would not be permitted to

testify about the conversation[s] at trial,” Gleklen, 199 F.3d at 1369. Because these statements

cannot be “presented in a form that would be admissible in evidence” at trial, they cannot aid

Thomas at this stage of the proceeding Fed. R. Civ. P. 56(c)(2).

10 Thomas’s reliance on a D.C. Ethics Manual (updated in 2014) and an advisory opinion

(circulated in 2013) to argue that her actions did not actually violate the District’s ethics rules

see Dkt. 33-1 at 24 (citing to Dkt. 33-10 at 13-21), fails for similar reasons and, in any event,

these sources post-date the 2012 Oll report.

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2. Circurnstantial Evidence and Temporal Proximity

Aside from challenging her employer’s proffered reasons for taking an adverse action, a

plaintiff asserting a retaliation claim may also defeat a motion for summary judgment by

identifying “other evidence . . . suggesting that retaliation was the real reason” her employer

acted. Allen, 795 F.3d at 40. ln an effort to do so, Thomas directs the Court to “circumstantial

evidence” that she claims would permit a reasonable jury to find that the District’s “proffered

explanation is false,” Dkt. 33-1 at 29-32, and also argues that the “temporal proximity . . .

between the time when DYRS approved [Thomas’s] FMLA leave and her termination” would

allow a reasonable jury to infer that the District retaliated against Thomas for requesting FMLA

leave, Dkt. 33-1 at 28.

Thomas first argues that Stanley and Youngblood “were long aware of [Thomas] having

medical issues and taking leave” and, armed with that knowledge, the pair “hatched” a plan “to

terminate her once she formalized her need for medical leave through her FMLA request.” Dkt.

33-1 at 30. Thomas is correct that her supervisors were aware of her medical issues; Stanley

knew, for example, that Thomas took three days off to deal with an illness in May of 2012, see

Dkt. 34-2 at 1, and Youngblood, who knew more of the specifics than Stanley, asked another

DYRS employee to help out if “[Thomas] [wa]s unable to respond to emails due to illness,” id. at

2. The fact that Stanley and Youngblood knew that Thomas was ill, however, adds nothing to

her claim; indeed, in virtually every FMLA case, the plaintiff s employer knows that the

employee or a close family member has a serious health condition or is in need of care See, e.g.,

29 U.S.C. § 2613(a) (allowing employers “to require that a request for [FMLA] leave . . . be

supported by a certification issued by [a] health care provider”). Nor is there any evidence that

Stanley and Youngblood plotted for months simply waiting for Thomas to submit a formal

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request for leave before executing on their plan to fire her in retaliation for seeking leave To the

contrary, the record shows that, if anything Youngblood sought to accommodate Thomas’s

health issues by ensuring that Thomas’s responsibilities were handled in her absence by another

staff member. See Dkt. 34-2 at 2. And, although Thomas asserts that Stanley chastised her for

having a “stale attitude” when he called her while she was out sick in July of 2012, see Dkt. 33-9

at 75, 79 (Pl.’s Dep.), as Thomas acknowledged in her deposition, that comment was prompted

by her evident “irritat[ion]” at Stanley’s call, id. at 79 (Pl.’s Dep.), and not by Stanley’s

knowledge of her long-term medical condition, Which Thomas did not disclose to him at that

time, id.

Thomas also points to an email exchange between Youngblood and DCHR Director

Shawn Stokes that, she argues “demonstrates that the reasons given for the termination are

pretext and unworthy of belief.” Dkt. 33-1 at 32. In those emails, Stokes asked Youngblood if

Thomas was on approved intermittent FMLA leave when she was terminated, and four minutes

later, Youngblood responded that she did not “have any knowledge of any approved intermittent

FMLA.” Dkt. 34-2 at 5. Stokes then explained that she wanted to be “absolutely sure” that

Thomas’s intermittent leave had not yet started, and about ten minutes later, Youngblood

responded that she “went back and double checked the paperwork,” confirmed that Thomas had

requested FMLA intermittent leave, and “apologize[d] for the confusion.” Id. at 4. The entire

back-and-forth lasted fifteen minutes

Thomas claims that the emails show an “attempt at a cover-up by . . . Youngblood”

because, even though Youngblood had signed the paperwork approving Thomas’s intermittent

FMLA leave, she “lied when she responded” to Stokes by telling her that she had no knowledge

of such leave Dkt. 33-1 at 31-32. Although Thomas does not quite connect the dots she seems

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to suggest that Youngblood knew DYRS should not have terminated Thomas while she was on

intermittent FMLA leave, sought to hide that fact from Stokes and came clean only when

pressed. But no reasonable jury would reach such a conclusion by reading the emails. The

emails simply show that, when Stokes asked her to confirm her earlier assertion, Youngblood

returned to her records double-checked, and quickly clarified her earlier answer. Youngblood’s

need to refresh her recollection is far from surprising; indeed, when asked at deposition whether

she had taken any intermittent leave prior to her termination, Thomas responded, “l think l took

off maybe one day. l don’t remember.” Dkt. 33-9 at 119 (Pl.’s Dep.). That Youngblood forgot

the precise dates of Thomas’s intermittent FMLA leave, thus merely suggests that she was not

focused on the FMLA issue at the time she terminated Thomas’s employment. ln short, if

anything, the email exchange between Youngblood and Stokes would seem to undercut

Thomas’s claim of FMLA retaliation

With respect to the issue of temporal proximity, Thomas correctly notes that Youngblood

approved Thomas’s FMLA leave request on October 1, 2012, and that her termination letter was

dated only a month later, on November 1, 2012. Thomas’s argument, however, confuses the use

of temporal proximity evidence to make out a prima facie case at the first step of the McDonnell

Douglas framework, and the use of such evidence “to defeat [a defendant’s] proffer and support

a finding of retaliation” once it has proffered a non-retaliatory reason for its actions Woodrujj”v.

Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). For purposes of establishing aprimafacie case of

retaliation, “[t]emporal proximity can indeed support an inference of causation,” at least “where

the two events are ‘very close’ in time.” Id. at 529 (intemal citation omitted). But, once a

defendant proffers a legitimate reason for its adverse action, temporal proximity standing alone is

not sufficient to “defeat the proffer and [to] support a finding of retaliation.” Id. at 530. At this

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stage, permitting evidence of temporal proximity to rebut the defendant’s showing would be

tantamount to “grant[ing] employees a period of immunity, during which no act, however

egregious would support summary judgment for the employer in a subsequent retaliation claim.”

Id. Courts in this circuit, accordingly, require “positive evidence beyond mere proximity . . . to

defeat the presumption that the proffered explanations are genuine.” Id. Here, as explained

above, Thomas has presented no competent evidence that the District’s proffered reasons were

false, nor does she grapple with the fact that it was during the month between when Youngblood

approved her FMLA leave and when DYRS terminated her employment that various

performance issues arose and the Oll issued its finding that Thomas had violated the ethics rules

The Court will, accordingly, grant the District’s motion for summary judgment on

Thomas’s FMLA and DCFMLA retaliation claims

B. Interference Claims

Under the FMLA, it is “unlawful for any employer to interfere with . . . the exercise of or

the attempt to exercise, any right provided” under the Act. 29 U.S.C. § 2615(a). “To state an

FMLA interference claim, a plaintiff must allege facts sufficient to show, among other things

that (1) he was entitled to take leave because he had a ‘serious health condition,’ (2) he gave his

employer adequate notice of his intention to take leave, and (3) his employer denied or otherwise

interfered with his right to take leave.” Hodges v. District of Columbia, 959 F. Supp. 2d 148,

155 (D.D.C. 2013); see also Elzeneiny, 2016 WL 3647838, at *5. Yet, significantly, the FMLA

does not “protect an employee’s job against a legitimate, unrelated, reason for separation”

Hopkins, 851 F. Supp. 2d at 155. Thomas and the District, accordingly, agree that an “employer

can defend against [an FMLA interference] claim by showing that the employee would have

been terminated regardless of the request for FMLA leave.” Dkt. 33-1 at 12; see also Dkt. 40 at

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18-19; Hopkins, 851 F. Supp. 2d at 155-56 (collecting cases); Edgar v. JACProds., 443 F.3d

501 , 508 (6th Cir. 2007) (“[l]nterference with an employee’s FMLA rights does not constitute a

violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for

engaging in the challenged conduct.”).

The parties disagree, however, about who bears the burden on this defense lt is settled in

this circuit that the plaintiff bears the burden of showing “that her employer ‘interfere[d] with,

restraine[d], or den[ied] the exercise of or the attempt to exercise, any right provided’ by the

FMLA.” McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d l, 7 (D.C. Cir. 2010)

(quoting 29 U.S.C. § 2615(a)(l)); see also Gordon v. U.S. Capitol Police, 778 F.3d 158, 164

(D.C. Cir. 2015). But the D.C. Circuit has not addressed whether the McDonald Douglas

framework, under which the ultimate burden remains with the plaintiff, see 411 U.S. at 804~05,

applies to an FMLA interference claim, and courts from other circuits are divided on this issue,

compare, e.g., Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) (explaining that the

“district court correctly applied McDonnell Douglas to both [plaintiff s] interference and

retaliation claims”), with, e.g., Bachelder, 259 F.3d at 1131 (explaining that “there is no room for

a McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under”

the FMLA). Here, the Court need not resolve this issue beeause, even if the McDonala' Douglas

framework does not apply, and the employer has not only the burden of production, but also “the

burden of proving that [the] employee dismissed during FMLA leave would have been dismissed

regardless of the employee’s request for leave,” Hopkins, 851 F. Supp. 2d at 156, the District is

entitled to summary judgment on Thomas’s interference claim.

Assuming for present purposes that the District bears the burden of proving that Thomas

would have been dismissed regardless of her request for FMLA leave, the Court must still apply

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the traditional rules applicable at summary judgment Under those rules a defendant may meet

its burden by producing competent evidence showing the absence of any genuine dispute of

material fact for trial See Fed. R. Civ. P. 56. After “a properly supported motion for summary

judgment is made,” the burden then shifts to the nonmoving paity, who “must set forth specific

facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 250 (intenial

quotation marks omitted). To carry that burden, moreover, the nonmoving party must offer more

than a “mere existence of a scintilla of evidence,” id. at 252, unadorned speculation, see

Hutchinson, 393 F.3d at 229, or conclusory assertions see Ass ’n of F li ght Attendants-C WA v.

Dep ’t ofTransp., 564 F.3d 462, 465 (D.C. Cir. 2009). “[T]he nonmoving party must,” instead,

“come forward With specific facts Showing that there is a genuine issue for trial,’7 Matsushita

Elec. lndus. Co., Ltd. v Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks

omitted) (emphasis in original); that is she must show that “the evidence is such that a

reasonable jury could return a verdict” in her favor, Liberty Lobby, 477 U.S. at 248. Here,

Thomas has failed to counter the District’s “supported motion for summary judgment” with any

such evidence Id.

As explained at length above, the District has offered ample evidence that Thomas was

dismissed for reasons unrelated to her request for FMLA leave See supra pp. 16-30. The sole

question, then, is Whether Thomas has identified any evidence that would permit a reasonable

jury to reach a contrary conclusion According to Thomas she has not only carried this burden,

but has shown that she is entitled to summary judgment because the undisputed evidence shows

that she was discharged “‘not for cause.”’ Dkt. 33-1 at 12 (quoting Dkt. 26-5 at 7); Dkt. 47 at 3.

But, as explained above, that contention confuses "not for cause” with “without reason.” See

supra p. 26. An at-will employee can be dismissed without a finding of wrongdoing

36

insubordination or incompetence See D.C. Code § 1-609.54; see also D.C. Mun. Regs. Tit. 6-B

§ 1600.3(g) (2012). That does not mean that the employee’s supervisors had no rationale for

their decision or that they acted in an entirely arbitrary manner. Here, the District has explained

its reasons and, as discussed above, Thomas has failed to cast doubt on that explanation

For all of the reasons explained above, see supra pp. 16-34, there is no genuine dispute

that Thomas was discharged for reasons unrelated to her plan to take FMLA leave The Court

will, accordingly, grant the District’s motion for summary judgment on Thomas’s FMLA and

DCFMLA interference claims and will deny Thomas’s cross- motionll

CONCLUSION

F or the foregoing reasons the Court will grant the District’s motion for summary

judgment, Dkt. 26, and will deny Thomas’s cross-motion for summary judgment, Dkt. 36.12

With 71 /L/i.~rt

EANDOILPH D. Moss

nited States District Judge

A separate order will issue

Date: December 30, 2016

" ln her motion for summary judgment, Thomas alleges that the District’s FMLA violations

were “willful and intentional” and argues that she is entitled to liquidated damages pursuant to

29 U.S.C. § 2617(a)(1)(A)(ii). See Dkt. 33-1 at 32_33. Because the Court will grant the

District’s motion for summary judgment, it follows that Thomas’s request for liquidated

damages fails

37