Singh v. Aarp

_ UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LISA SINGH, )

)

Plaintiff, )

)

Vv. ) Case No. 1:18-cv-1247-RCL

)

AMERICAN ASSOCIATION OF )

RETIRED PERSONS, INC., et al., )

)

Defendants. )

)

MEMORANDUM OPINION

On April 17, 2020, this Court denied defendant American Association of Retired Persons,

Inc.’s (“‘AARP’s”) Motion for Summary Judgment in its entirety, allowing both the

discrimination claim and the retaliation claim to proceed. The Court also granted in part and

denied in part defendant Aquent, LLC’s (““Aquent’s”) Motion for Summary Judgment,

dismissing the retaliation claim but allowing the discrimination claim to proceed. The Court

assumes familiarity with that Memorandum Opinion (ECF No. 42) and the accompanying Order

(ECF No. 43). AARP and Aquent have both filed motions for reconsideration (ECF Nos. 48 &

49). Upon consideration of those motions, plaintiff Lisa Singh’s opposition (ECF No. 53), and

defendants’ replies (ECF Nos. 56 & 57), the Court will DENY both motions.

LEGAL STANDARD

Because a denial of summary judgment is not a final judgment, a motion to reconsider

that denial is evaluated under Federal Rule of Civil Procedure (“Rule”) 54(b). Cobell v. Norton,

355 F. Supp. 2d 531, 539 (D.D.C. 2005). Rule 54(b) provides that “any order or other decision,

however designated, that adjudicates fewer than all the claims . . . may be revised at any time

before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.” Rule 54(b) relief is available “as justice requires.” Cobell, 355 F. Supp. 2d at 539.

Relevant considerations “include whether the Court ‘patently’ misunderstood the parties, made a

decision beyond the adversarial issues presented, made an error in failing to consider controlling

decisions or data, or whether a controlling or significant change in the law has occurred.” Jsse v.

Am. Univ., 544 F. Supp. 2d 25, 29 (D.D.C. 2008). The Court also has discretion to “grant a

motion for reconsideration if there are other good reasons for doing so.” Cobell, 355 F. Supp. 2d

at 540.

ANALYSIS

For the reasons set forth below, the Court will deny both AARP’s and Aquent’s requests

for reconsideration, as neither motion meets the Rule 54(b) standard.

I. AARP’S MOTION FOR RECONSIDERATION

AARP’s Motion for Reconsideration fails to raise any argument that would warrant

reversing course and granting its request for summary judgment. As Ms. Singh aptly points out,

“AARP has merely regurgitated the same wholly unsuccessful arguments asserted in its Motion

for Summary Judgment.” ECF No. 53 at 7. AARP accuses the Court of “improperly questioning

the credibility” of potential defense witnesses. ECF No. 49-1 at 12. On the contrary, the Court

merely noted the existence of potential credibility disputes, correctly noting that a jury must

make all determinations of witness credibility. As the Court reiterated numerous times

throughout its Memorandum Opinion, “the Court is not supposed to weigh the evidence—rather,

the Court must determine whether there is contradictory evidence to be weighed at trial.” ECF

No. 42 at 4. Additionally, much of AARP’s motion is dedicated to attempting to refute each

piece of evidence that could potentially weigh in Ms. Singh’s favor. This approach fails to

recognize that discrimination and retaliation claims are rarely about one piece of “smoking gun”

evidence. Rather, these types of claims involve analyzing the evidence as a whole, with each

individual piece of evidence merely constituting “one brick in the wall.” Therefore, even though

a single piece of evidence standing alone may be insufficient to prove Ms. Singh’s claims, it is

the evidence in its totality that a jury must consider. It is also important to remember that at the

summary judgment stage, the Court has to draw all inferences in Ms. Singh’s favor. A jury,

however, will not be operating under this restriction.

Furthermore, AARP takes issue with this Court’s determination that Ms. Singh’s

retaliation claim is still viable despite the lapse in time between the protected activity and the

adverse action. The Court already explained in its April 17, 2020 Memorandum Opinion why

this is a unique situation wherein the amount of time that passed does not bar her claim, and it

will not repeat: that reasoning here. While AARP is certainly welcome to argue to the jury that

the lapse in time makes a retaliatory animus less likely, the lapse in time does not bar Ms.

Singh’s claim as a matter of law in this particular instance.’ Moreover, AARP’s arguments about

Ms. Boltax rather than Ms. Bettencourt being the sole decisionmaker are unpersuasive. For the

reasons already stated in the April 17, 2020 Memorandum Opinion, a jury will ultimately need to

decide that question. Essentially, AARP’s Motion for Reconsideration is nothing but an attempt

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to relitigate issues that the Court already clearly decided in its April 17, 2020 Memorandum

' AARP incorrectly claims that the Court determined that “temporal proximity, or the lack thereof, is irrelevant to

Ms. Singh’s retaliation claim.” ECF No. 49-1 at 18 (emphasis added). The Court made no such determination. As

noted in both the April 17, 2020 Memorandum Opinion and in this Memorandum Opinion, the lapse in time is

certainly relevant evidence that AARP is welcome to present to the jury; however, because it does not conclusively

bar Ms. Singh’s claim as a matter of law, the Court cannot grant summary judgment for AARP.

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Opinion. The Court finds that AARP is not entitled to reconsideration, as justice does not require

reconsideration. Ms. Singh’s discrimination and retaliation claims against AARP may thus

proceed to a jury.

II. AQUENT’S MOTION FOR RECONSIDERATION

Although the Court does not believe that Aquent is entitled to reconsideration, the Court

does agree that a more detailed explanation of why Ms. Singh’s discrimination claim may

proceed to trial would be useful.? Aquent’s primary argument is essentially that it lacked the

ultimate authority to prevent AARP from discriminating against Ms. Singh, and thus as a matter

of law it cannot be held liable for AARP’s discrimination. Although the D.C. Circuit does not

appear to have directly addressed joint employer liability in this context, the Fifth Circuit has

held that a staffing agency is only liable for the discriminatory conduct of its joint-employer

client if it (1) participates in the discrimination; or (2) knows or should have known of the

client’s discrimination but fails to take corrective measures within its control. Nicholson v.

Securitas Sec. Servs. USA, Inc., 830 F.3d 186, 189-90 (Sth Cir. 2016). This is the standard that

the Court used when ruling on Aquent’s initial summary judgment motion, and Aquent agrees

that this is the correct standard. There is no evidence that Aquent participated in the

discrimination, so Ms. Singh must rely on the second prong of Nicholson to prove her

discrimination claim against Aquent. Aquent regurgitates the same arguments from its initial

summary judgment motion in arguing that Aquent had no reason to know of AARP’s

2 For the purposes of this Section of the Memorandum Opinion, the Court must assume that a jury will first find that

AARP acted discriminatorily when it terminated Ms. Singh. If a jury does not find that AARP acted

discriminatorily, then Aquent cannot be held liable for discrimination. Nothing in this Section should be taken as an

indication that the Court believes a jury is certain to find AARP liable for discrimination; as detailed in the April 17,

2020 Memorandum Opinion, there are many factual issues that a jury still must resolve with respect to that claim.

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discrimination. The Court already explained why a jury could find that Aquent should have

known of AARP’s discrimination in its initial Memorandum Opinion and will not repeat that

explanation here.

The remaining question under Nicholson’s second prong is whether “corrective measures

within its control” means that Aquent must have had ultimate authority over AARP’s decision to

terminate Ms. Singh, or merely that Aquent must have taken all reasonable steps to try to correct

AARP’s decision to terminate Ms. Singh even if it could not ultimately stop the discrimination.

The Court believes the latter is the proper question. In trying to argue that the former is the

proper question, Aquent suggests that the Court improperly ignored Caldwell v. ServiceMaster

Corp., 966 F. Supp. 33 (D.D.C. 1997). This argument is insufficient for four main reasons. First,

the Court did not ignore Caldwell—in fact, it expressly cited Caldwell in its initial Memorandum

Opinion. ECF No. 42 at 16-17. Second, Caldwell is not binding authority. Although Aquent

characterizes Caldwell as “long-standing” and “oft-cited,” ECF No. 48-2 at 5, it has never been

cited or addressed by the D.C. Circuit in the twenty-three years since it was issued. Aquent also

fails to acknowledge that although Caldwell has been cited by the D.C. District Court in

approximately thirty-seven different cases (not including this one), it does not appear that the

D.C. District Court has ever cited the portion of Caldwell analyzing whether a joint employer

took all corrective measures within its control. Indeed, Caldwell is usually only cited when

courts must determine whether the plaintiffs exhausted their administrative remedies or whether

the plaintiffs can establish a hostile work environment.’ Neither of these issues is present here.

3 Although a few D.C. District Court cases do reference Caldwell in connection with the two-pronged test for joint

employer liability, they do not address the detailed issues present here. See, e.g., Nytes v. Trustify, Inc., 297 F. Supp.

3d 191, 207 (citing Caldwell in finding that the plaintiff could survive a motion to dismiss by alleging that the joint

ermployer knew of the discriminatory conduct, even if the plaintiff did not allege that he directly told the joint

employer about his request for an accommodation); Riggsbee v. Diversity Servs., 637 F. Supp. 2d 39, 45 n.1 (D.D.C,

2009) (citing Caldwell in a footnote solely to establish the general rule for joint employer liability).

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Third, Caldwell is factually distinct from this case. Caldwell specifically held that no

reasonable jury could find that the joint employer knew or should have known about any

discriminatory conduct, whereas the Court already explained in its original Memorandum

Opinion why a reasonable jury could potentially find that Aquent should have known that Ms.

Singh’s termination was based on discrimination. Although the Court in Caldwell also found that

the joint employer could not have prevented the discrimination, that finding was likely

influenced by the fact that the joint employer had no reason to know of the discrimination.

Additionally, the joint employer in Caldwell made a reasonable inquiry into whether the

plaintiffs’ terminations were lawful and reasonably concluded that they were. In this case,

however, Aquent’s inquiry consisted of sending an email asking for more information about Ms.

Singh’s termination—although a jury may find that this was sufficient, a jury could also find that

further investigation was warranted under the circumstances. Aquent further argues that like in

Caldwell, it satisfied its responsibility to take corrective measures by offering Ms. Singh

different employment. While Aquent may certainly produce evidence of this relevant fact at trial,

a jury must determine whether that was sufficient or whether other corrective measures would

have been reasonable under the circumstances.*

Fourth, even if Caldwell were perfectly analogous to this case, there is good reason for

departing from its holding with respect to joint employer liability. Most employment agencies

operate like Aquent in that the client (here, AARP) has ultimate control over whether to

4 In Waltman v. International Paper Co., the Fifth Circuit held that taking some corrective action does not

automatically absolve a defendant of liability for discrimination if additional corrective actions would have been

reasonable under the circumstances. 875 F.2d 468, 479 (Sth Cir. 1989). The D.C. District Court similarly held that

the sufficiency of a defendant’s corrective measures is a fact-specific question. Rochon v. Attorney Gen. of U.S., 734

F. Supp. 543, 547 (D.D.C. 1990). Although these holdings were made in the context of employers being held

vicariously liable for their employees’ discriminatory conduct (and thus they are inapplicable to the question of

whether a joint employer must have ultimate control over the discriminatory conduct to be held liable), they still

suggest that Aquent is not automatically absolved of liability simply by taking some corrective measures—rather, a

question of fact remains regarding whether those corrective measures were sufficient.

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terminate an employee that the agency procured—put another way, it is common for people like

Ms. Singh to work for the client on an at-will basis. If the Court were to accept Aquent’s

argument that it cannot be held liable because it could not prevent AARP from terminating Ms.

Singh for discriminatory reasons, the Court would essentially be shielding Aquent (and all other

employment agencies who operate in this fashion) from liability under the second prong of

Nicholson. Indeed, even if Aquent admitted to having direct knowledge of AARP’s

discrimination, it would still be able to throw its hands up and say, “No corrective measures that

we take can cure AARP’s discrimination because Ms. Singh’s contract is ultimately under

AARP’s control, and therefore we have no obligation to take any corrective measures at all.”

Therefore, in order to ensure that the second Nicholson prong is not rendered impotent, the Court

mist find that the second prong does not require that 4 corrective measure have the ability to

cure the discriminatory act in order to constitute a corrective measure. Rather, a jury must look at

what steps Aquent took and determine whether it reasonably should have done more as part of a

good-faith effort to cure the discrimination, even if the ultimate decision to terminate Ms. Singh

was still in AARP’s hands. Essentially, the availability and reasonableness of corrective

measures is a question of fact, not a question of law. Although a jury may find that the steps

Aquent took in this case were sufficient, as explained in the Court’s initial Memorandum

Opinion, a jury may also find that Aquent should have done more.

The Court’s reasoning is also confirmed by the relevant legal standard for determining

whether a defendant was a joint employer who may be liable for discriminatory acts committed

by another employer. As the D.C. Circuit has clarified, a defendant need not have direct control

over the terms and conditions of the plaintiff's employment in order to be a joint employer—

indirect control over the terms and conditions of the plaintiff's employment will suffice. See

Browning-Ferris Indus. of Cal. v. NLRB, 911 F.3d 1195, 1201 (D.C. Cir. 2018) (citing NLRB v.

Browning-Ferris Indus., Inc., 691 F.2d 1117 (3d Cir. 1982)). Whether the employer retained the

power to fire the plaintiff is only one factor to consider under the Browning-Ferris test for joint

employers. See Nytes v. Trustify, Inc., 297 F. Supp. 3d 191, 204 (D.D.C. 2018). This suggests

that even if an employment contract gives only one employer the authority to terminate the

plaintiff, if the joint employer still retains indirect control over other terms and conditions of

employment, the joint employer is potentially liable if that termination was discriminatory. .

Of course, the second prong of Nicholson is irrelevant if Ms. Singh does not first

establish that Aquent was in fact a joint employer. The Court is somewhat skeptical about

whether Ms. Singh can meet this standard based on the evidence presented at the summary

judgment stage; however, the Court cannot grant simmary judgment for Aquent on this basis

because Aquent did not argue the joint employer issue in its summary judgment motion or in its

motion to reconsider. Although Aquent “d[id] not concede that it should be considered a joint

employer with AARP,” ECF No. 27-1 at 22, it failed to provide any additional argument about

why it should not be considered a joint employer. Instead, Aquent stated that “resolution of the

joint employment relationship is not necessary to dispose of Plaintiff's Complaint in this case.”

Id. By failing to address this issue, Aquent precluded itself from obtaining summary judgment

based on a finding that it is not a joint employer. It is Aquent’s burden to prove that no

reasonable jury could find in Ms. Singh’s favor on this issue, yet Aquent made no effort

whatsoever to address that issue. “[N]ot conced[ing]” that it is a joint employer, id., is

insufficient to obtain summary judgment. Therefore, it will be up to a jury to decide whether

Aquent is a joint employer with AARP, and Aquent’s request for reconsideration will be denied.

CONCLUSION

Based on the foregoing, the Court will DENY defendant AARP’s Motion for

Reconsideration (ECF No. 49) and DENY defendant Aquent’s Motion for Reconsideration (ECF

No. 48).

A separate Order accompanies this Memorandum Opinion.

Date: July 17, 2020 ‘ou Tabet

Royce C. Lamberth

United States District Court Judge