Petition for Writ of Certiorari — Jeremiah Bryant, Petitioner v. District of Columbia Office of Human Rights, et al.

Supreme Court briefJun 26, 2020

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APP. A

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CV-630

Jeremiah Bryant, Appellant,

*=3

ra 07 2020

DISTRICT OF COLUMBIA

COURT OF APPEALS

District of Columbia Office of Human Rights

and

Borger Management, Inc., Appellees.

Appeal from the Superior Court

of the District of Columbia

(CA-882-17)

(Hon. John M. Campbell, Reviewing Judge)

(Submitted October 31, 2019

Decided February 7, 2020)

Before Thompson and Beckwith, Associate Judges, and Washington,

Senior Judge.

MEMORANDUM OPINION AND JUDGMENT

Per Curiam: Appellant Jeremiah Bryant appeals from a decision of the

Superior Court affirming determinations by the District of Columbia Office of

Human Rights (“OHR”) that there was no probable cause to believe that

appellant’s employer, appellee Borger Management, Inc. (“Borger”), retaliated

against him in violation of the District of Columbia Human Rights Act

(“DCHRA”) when it suspended him with pay for three days, and later terminated

his employment, in retaliation for his having complained to OHR.1 We affirm.

Appellant also includes in his “Statement of the Issue” whether the

Superior Court erred in affirming OHR’s finding of no probable cause of

discrimination. However, appellant presents no arguments as to why OHR’s

determination was in error, and we agree with Borger that appellant has waived the

(continued...)

The record shows that appellant was employed by Borger for about twentyfive years as porter/maintenance technician and worked as one of four employees

at the Borger-managed apartment building known as “Chillum Manor,” located at

21 Riggs Road, N.E. The other employees were Nathanial Matthews, the

community manager, Minh Dao, a live-in maintenance technician, and Christopher

Nichols, a porter. The events underlying appellant’s OHR complaints occurred

when he was fifty-nine years old.

The OHR record indicates that in October 2015, Matthews received reports

that appellant had accessed the management office after-hours and duplicated

apartment keys without prior authorization. In response to the reports, Matthews

changed the locks to the management office and gave a key only to Nichols, who

was responsible for daily cleaning of the management office. At a staff meeting on

November 4, 2015, Matthews also informed the apartment staff that he had

received reports about unauthorized activity in the management office and

reminded staff that no after-hours access was permitted, except in the event of an

emergency.2 Appellant reported to OHR that on the same day, he told his co

worker Nichols he was going to file a complaint about discriminatory access to

keys (and OHR intake forms show that appellant did contact OHR the same day

and the next day complaining of disparate treatment on the basis of age, with

respect to “a new master key to the rental office” that appellant alleged was

“important to the functions of his job” and also of retaliation, though he did not file

(...continued)

claim. See Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 554 n.9 (D.C.

2001) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.”). Appellant also adverts in a

perfunctory way to OHR’s “failure] to schedule a mediation for his claims[,]”

but, as the Superior Court found, the OHR record shows that the parties attended

mediation sessions.

2 Appellant admits that he had been in the management office after hours

and that he had keys to vacant apartments

his formal “Charge of Discrimination” based on retaliation until December 1

2015).3

After the unauthorized access, key duplication, and lock-change were

brought to the attention of Borger executives (Borger Assistant Vice President

Gloria Dunbar and Executive Vice President Arianna Royster), they met with

appellant on November 5, 2015, and thereafter notified him that he would be

suspended with pay pending an investigation. After the investigation concluded,

appellant’s suspension was lifted and he returned to work, where he (and all the

other employees) received access to the management office through a system

called KeyTrak. When appellant filed his formal OHR complaint on December 18,

2015, he alleged that his three-day suspension with pay was in retaliation for his

having engaged in protected activity by signaling his intent to file a charge of

discrimination with OHR.

On or about April 8, 2016, appellant filed a second complaint with OHR

arising out of the lock change/key incident. In his second complaint, appellant

alleged that Borger had discriminated against him based on his age when Matthews

gave Nichols (who was in his thirties and thus much younger than appellant) a key

to the management office but did not give appellant one. Appellant also claimed

that Matthews had made statements about appellant being old and moving slowly.

On June 22, 2016, appellant became hostile with Dao and “threatened [him]

with physical violence” after Dao questioned him about his work on a maintenance

request. Royster told OHR that she made the decision to terminate appellant after

that “threatening altercation,” which was a “repeated” problem. Appellant was

terminated effective June 27, 2016. On or about July 13, 2016, appellant filed a

third complaint with OHR, alleging that Borger terminated him out of retaliation

for having previously filed two OHR complaints against the company. On

September 15, 2016, OHR, having conducted an investigation, issued

determination letters as to each of the three complaints, finding “no probable

cause” in each case. After unsuccessfully seeking reconsideration by OHR,

appellant filed his Petition for Review with the Superior Court on February 13,

2017. On May 29, 2018, the Superior Court affirmed OHR’s determinations. This

appeal followed.

3 Appellant’s brief refers to his compliant for “racial discrimination,” but

the record does not indicate that he complained of discrimination on that basis.

' 4i

II.

This court reviews a Superior Court ruling on an OHR decision in the same

manner in which we would review the OHR decision if it were appealable directly

to us. District of Columbia Dep’t of Pub. Works v. District of Columbia Office of

Human Rights (“DPW”), 195 A.3d 483, 490 (D.C. 2018). OHR’s action must be

affirmed “if it is supported by substantial evidence and otherwise in accordance

with law.” Id.

III.

Appellant makes three arguments in this appeal: that OHR (1) erred by

determining that his suspension without pay did not constitute an adverse action;

(2) erred in finding no probable cause to believe that his suspension was

retaliatory; and (3) improperly concluded that his showing of “temporal proximity”

between his termination and his second OHR complaint did “not support a

reasonable inference of a retaliatory nexus.” We address each argument in turn.

In order to establish a prima facie case of retaliation within the meaning of

the DCHRA, a complainant “must demonstrate by a preponderance of the evidence

that: (1) he was engaged in a protected activity or that he opposed practices made

unlawful by the DCHRA, (2) the employer took an adverse action against him, and

(3) a causal connection existed between his opposition or protected activity and the

adverse action taken against him.” Propp v. Counterpart Int’l, 39 A.3d 856, 863

(D.C. 2012). There is no adverse action unless there are “materially adverse

consequences affecting the terms, conditions, or privileges of employment or

future employment opportunities such that a reasonable trier of fact could find

objectively tangible harm.” DPW, 195 A.3d at 491. “[A]n action is adverse if it

would have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Walker v. District of Columbia, 279 F. Supp. 3d 246, 266 (D.D.C.

2017) (internal quotation marks omitted).

OHR found that appellant failed to allege an adverse action because

appellant “suffered no material harm when he was suspended [for only three days],

with pay.” This determination was not legally erroneous. As Borger argues, a

suspension with pay is the equivalent of paid administrative leave. “[PJlacing an

employee on paid administrative leave does not, in and of itself, constitute a

materially adverse action for purposes of a retaliation claim.” Hornsby v. Watt,

217 F. Supp. 3d 58, 66 (D.D.C. 2016). Further, appellant does not assert that he

suffered any harm or injury caused by the three-day suspension with pay. See

Patzy v. Hochberg, 217 F. Supp. 3d 357, 361 (D.D.C. 2016) (explaining that

retaliation claims do not “protect[] an individual [] from all retaliation, but from

retaliation that produces an injury or harm” (quoting Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 67 (2006)))/ In fact, the record supports Borger’s

contention that appellant was not dissuaded from “making or supporting a charge

of discrimination” because he filed his first formal OF1R complaint and his

subsequent one complaining of age discrimination after he returned from his

suspension. Walker, 279 F. Supp. 3d at 266. The Superior Court did not err in

upholding OHR’s determination that appellant failed to establish a prima facie case

that his suspension constituted actionable retaliation.

Still focusing on his retaliatory-suspension claim, appellant also argues that

the Superior Court erred in affirming OHR’s determination that he failed to make a

prima facie showing that management knew of his OHR complaint when it

4 As noted in Mosunic v. Nestle Prepared Foods Co., 274 F. Supp. 3d 22,

27 (D.R.I. 2017), a case on which appellant relies, a paid suspension/paid

administrative leave could constitute an adverse employment action if it results in a

loss of experience while on leave. Id. at 27 n.3 (citing Dahlia v. Rodriguez, 735

F.3d 1060, 1078 (9th Cir. 2013) (reasoning that where plaintiffs “administrative

leave prevented him from taking the sergeant’s exam, required him to forfeit oncall and holiday pay, and prevented him from furthering his investigative

experience,” it would constitute an adverse employment action)). Here, by

contrast, appellant’s paid suspension lasted only three days, and appellant does not

cite any detriment on account of it. Dilettoso v. Potter, No. CV 04-0566-PHXNVM, 2006 U.S. Dist. LEXIS 2973 (D. Ariz. Jan. 25, 2006), is similarly

distinguishable; the plaintiff in that case was placed on administrative leave for

nine months and missed an opportunity to earn a $1,000 bonus. Id. at *22.

suspended him without pay.5 Again, we discern no error. Appellant reported to

OHR that he told Nichols during the November 4, 2015, meeting that he was going

to file a discrimination complaint and that he believed Nichols relayed this

information to management. But when interviewed by OHR, Nichols denied that

appellant told him this. Appellant also reported to OHR that he saw Nichols and

Matthews talking after the November 4, 2015, meeting. However, appellant has

pointed to no evidence that Borger management actually learned of his intent to

file a discrimination charge with OHR before management determined to suspend

him while investigating the unauthorized-access matter. Without more, appellant’s

evidence that he was suspended on the same day he filed his informal OHR

complaint did not compel OHR to find a retaliatory nexus between appellant’s

initial complaints to OHR and his suspension. This was especially so in light of

the information OHR obtained through interviews that appellant had been seen in

the management office after hours “going through the business drawer” and

“making copies of the keys” to apartments and in light of what OHR found was

Borger’s “objectivef] concern[] about security based on reports that [appellant] had

been accessing the [management] office after hours for unknown purposes, and

had a stash of unauthorized keys.” See V.K. v. Child & Family Servs. Agency of

the District of Columbia, 14 A.3d 628, 633 (D.C. 2011) (“[W]e will disturb the

administrative finding . . . only if the record compels a contrary conclusion.”).

Rather, and contrary to appellant’s assertion on page six of his brief, OHR could

reasonably find that Borger had a legitimate, non-discriminatory reason for

suspending appellant and that its explanation of why it did so was not a pretext.

With respect to his retaliatory-termination claim, appellant argues that the

Superior Court erred in upholding OHR’s determination that the temporal

proximity between his termination and the dates of his first and second OHR

complaints was insufficient to support an inference of a causal link between his

protected activity and his termination. It is true that a complainant may establish a

prima facie claim of retaliation by “showing that the employer had knowledge of

the employee’s protected activity, and that the adverse personnel action took place

shortly after that activity.” Taylor v. District of Columbia Water & Sewer Auth.,

See McFarland v. George Wash. Univ., 935 A.2d 337, 358 (D.C. 2007)

(“[Appellant] must provide evidence that the decision-makers who took the

adverse action knew about his protected activity.”).

957 A.2d 45, 54 (D.C. 2008) (internal quotation marks omitted). But appellant’s

termination did not occur “shortly after” he initiated his first OHR complaint: his

termination occurred more than seven months after his informal complaint to OHR

and more than six months after his first formal complaint was filed. See, e.g.,

Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (affirming district

court’s holding that three-month period of time between plaintiffs protected

activity and her termination was insufficient to establish a causal connection);

Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (lapse of four

months between filing of discrimination claim and receipt of disciplinary letter did

not sufficiently raise inference that filing was the reason for the adverse action).

Further, even if we assume appellant established a prima facie case of

retaliation by pointing to his termination a little over two months after he filed his

second complaint with OHR, OHR could reasonably find that appellant did not

carry his ultimate burden of proving retaliation by a preponderance of the evidence

after Borger “show[ed] a legitimate, non-retaliatory reason” for the termination.

Arthur Young & Co. v. Sutherland, 631 A.2d 354, 368 (D.C. 1993). Responding to

the OHR investigation, Borger showed that the termination came on the heels of a

repeated instance of appellant’s aggressive conduct toward a co-worker.6 The

record shows that in February 2016, Duncan admonished appellant for

insubordination and aggressive conduct after an incident on February 17, 2016, in

which appellant became hostile and took several steps toward Matthews with

clenched fists after Matthews questioned him about an uncompleted work

assignment. That was followed on June 22, 2016, by the incident in which

appellant “threatened Dao with physical violence” after Dao questioned him about

his work on a maintenance request. Although appellant denies that he threatened

Dao, he admitted to OHR that Dao told Matthews that appellant threatened and

wanted to fight him (and appellant’s brief acknowledges that Dao “reported

[ajppellant as acting in a ‘hostile’ manner towards him”). The record thus contains

substantial evidence to support OHR’s determination that Borger terminated

Bryant as a result of his insubordination and hostility towards his co-workers and

6 Under Borger’s employee handbook, “It is the policy of the Company that

workplace violence of any kind will not be tolerated. Any employee who

participates in workplace-related violence will be subject to disciplinary action, up

to and including termination. This includes, but is not limited to, such actions as

abusive or offensive comments, threats, and stalking, or aggressive and/or

unwelcome physical contact. To the extent possible, employees should avoid, or

attempt to avoid, any violent or potentially violent situations.”

supervisors. Accordingly, OHR was not compelled to find that appellant’s April

2016 complaint, rather than his June 2016 “repeated” aggression, explained his

termination.

Wherefore, the judgment of the Superior Court is

Affirmed.

ENTERED BY DIRECTION OF THE COURT:

JLIO A. CASTILLO

erk of the Court

Copies to:

Honorable John M. Campbell

Director, Civil Division

QMU

Jeremiah Bryant

301 G Street, SW

Apartment 516

Washington, DC 20024

Copies e-served to:

Amanda Vaccaro, Esquire

Loren L. AliKhan, Esquire

Solicitor General for DC

APP. B

Case l:17-cv-00424-KBJ Document 7 Filed 03/17/17 Page 1 of 1

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JEREMIH BRYANT,

Plaintiff,

BORGER MANAGEMENT, INC.,

Defendant.

)

No. 14-cv-0424 (KBJ)

ORDER

In this case, Plaintiff is proceeding pro se.

Defendant has filed a motion to

dismiss. (See Def.’s Mot. to Dismiss Pl.’s Compl., ECF No. 4.) In Fox v. Strickland,

837 F.2d 507 (D.C. Cir. 1988), the U.S. Circuit Court of Appeals held that a district court

must take pains to advise a pro se party of the consequences of failing to respond to a

dispositive motion. “That notice . . . should include an explanation that the failure to

respond . . . may result in the district court granting the motion and dismissing the case.”

Id. at 509. In addition, the local rules state that “[wjithin 14 days of the date of service

or at such other time as the court may direct, an opposing party shall serve and file a

memorandum of points and authorities in opposition to the motion [or] the Court may

treat the motion as conceded.” LCvR 7(b). Accordingly, it is

ORDERED that Plaintiff shall file a response to the motion to dismiss no later

than April 17, 2017. If he does not respond by that date, the Court will treat the motion

as conceded and may summarily dismiss the case.

DATE: March 17,2017

KETANJI BROWN JACKSON

United States District Judge

Case l:17-cv-00424-KBJ Document4 Filed 03/16/17

Page lot3

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UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

JEREMIAH BRYANT,

)

Plaintiff,

BORGER MANAGEMENT INC.,

Defendant.

Case No.: l:17-cv-00424 (KBJ)

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Pursuant to the Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant Borger

Management Inc. (“Borger” or “Defendant”) submits this Motion to Dismiss, respectfully

requesting that this Court dismiss all of Plaintiffs claims for lack of subject matter jurisdiction or

for failure to state a claim upon which relief can be granted.

Plaintiffs claim that he suffered from age discrimination, in violation of Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (Count I), should be

dismissed with prejudice because Plaintiff fails to plead an actionable adverse action. Similarly,

Plaintiffs claim that he was terminated in retaliation for filing two charges with the D.C. Office

of Human Rights (“DC OHR”) in violation of the D.C. Human Rights Act of 1977 (“DCHRA”),

D.C.Code §2-1401 et seq. (Count II), should be dismissed with prejudice because this Court lacks

subject matter jurisdiction as Plaintiff already elected to have this complaint proceed through the

administrative process provided by the DC OHR in lieu of filing a complaint in court.

Furthermore, Plaintiffs claim that he was subjected to a hostile work environment claim

in violation of the DCHRA (Count III) also should be dismissed with prejudice because this Court

lacks subject matter jurisdiction as the facts show that Plaintiffs claim is premised on discrete acts

already disposed of by the DC OHR. Count III also should be dismissed with prejudice because

\f-ct 1M?

Filed

D.C. Superior Court

05/29/2018 17:26PM

Clerk of the Court

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

CIVIL DIVISION

JEREMIAH BRYANT,

Petitioner,

BORGER MANAGEMENT, et al.,

Respondents.

)

Civil Case No. 2017 CA 000882 P(MPA)

Calendar 13

Judge John M. Campbell

ORDER

This matter comes before the Court on Jeremiah Bryant’s Petition for Review pursuant to

Super. Ct. Agency Rev. R. 1 For the reasons stated below, the Court holds that the respondent

District of Columbia Office of Human Rights’ (“OHR”) decision to find no probable cause of

discrimination or retaliation is AFFIRMED.

Background

This Petition for Review concerns the OHR’s “no probable cause” determinations on

three charges filed by Petitioner against the respondent Borger Management, Inc. (“BMI”). BMI

owns and operates the apartment building located at 21 Riggs Road, N.E. and commonly known

as “Chillum Manor.” Throughout the time period at issue in Petitioner’s three charges, Chillum

Manor was staffed by four BMI employees: 1) Nathanial Matthews (“Matthews”), the

community manager, 2) Minh Dao, a maintenance technician, 3) Christopher Nichols

(“Nichols”), a porter, and 4) Petitioner, a porter/maintenance technician. Under BMI’s policy

regarding employee actions that merit disciplinary action, grounds for termination include:

insubordination and engagement in any act of physically abusive conduct, discourteous conduct,

' f

©Strict of Columbia

Court of Appeals;

No. 18-CV-630

JEREMIAH BRYANT,

Appellant,

CAP882-17

BORGER MANAGEMENT, et al,

Appellees.

ORDER

On consideration of the notice of appeal and mediation screening statement, it

has been determined that this case is no appropriate for appellate mediation, it is

ORDERED that appellant shall, within 20 days from the date of this order,

complete and file with this court a single copy of the attached statement regarding

transcripts. Where transcript(s) necessary for this appeal have been ordered and

completed for non-appeal purposes, appellant must advise the Court Reporting and

Recording Division to forward said transcript(s) for inclusion in the record on

appeal. If partial transcript(s) are being ordered, appellant must file a statement of

issues to be presented before this court within 10 days from the date of this order.

See D.C. App. R. 10 (b)(3)(A). It is

FURTHER ORDERED that appellant's failure to respond to any order of this

court shall subject this appeal to dismissal without further notice for lack of

prosecution. See D.C. App. R. 13 (a).

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® Strict of Columfua

Court,olf Appeals

LClf

No. 18-CV-630

MG 23 2018

JEREMIAH BRYANT,

Appellant,

CAP882-17

BORGER MANAGEMENT, et al.,

Appellees.

ORDER

On consideration of appellant’s motion for the appointment of counsel, and

there being is no statutory right to court-appointed counsel in this civil matters, it is

ORDERED that appellant's motion for the appointment of counsel is denied.

or<^er to assist appellant, a list of possible pro bono or low cost legal providers is

attached to this order.

BY THE COURT:

ANNA BLACKBURNE-RIGSBY

Chief Judge

Copies e-served to:

Loren L. AliKhan, Esquire

Solicitor General for DC

441 4th Street, NW

Suite 600S

Washington, DC 20001

Amanda Vaccaro, Esquire

( j 10701 Parkridge Blvd

Suite 300

Reston, VA 20191

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____ ______ X_______________

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B&trict of Columbia

Court of Appeals?

No. 18-CV-630

SEP % 3 2019

!iySg^rLiIA

JEREMIAH BRYANT,

Appellant,

CAP882-17

BORGER MANAGEMENT, et al

Appellees.

ORDER

On consideration of the motion ofpro se appellant requesting leave to present

oral argument, and it appearing that this matter is scheduled on the Summary

Calendar of October 31, 2019, it is

ORDERED on behalf of the merits division assigned to consider this matter

atomnm0tl°un 18 dSmed and thiS matter Sha11 be submitted for decision on October

31, 2019, without oral argument by either party, on the record and briefs alone.

FOR THE COURT:

T itLip Cl , Cs&yXlL

jui IO A. CASTILLO

Clerk of the Court

Copies e-served to:

Loren L. AliKhan, Esquire

Solicitor General for DC

Amanda Vaccaro, Esquire

;)

Linda U. Okoukoni, Esquire

No. 18-CV-630

L #6

)

district of Columbia

Court of Appeals

F_i_J

No. 18-CV-630

OCT 4 . 2013

JEREMIAH BRYANT,

Appellant,

CAP882-i7-^^^——

BORGER MANAGEMENT, et al.,

Appellees.

ORDER

It appearing that the complete record on appeal has been filed with this court,

it is

ORDERED that appellant's brief and appendix including the documents

required by D.C. App. R. 30 (a)(1), shall be filed within 40 days from the date of

this order, and appellees briefs shall be filed within 30 days thereafter See D C

App. R. 31.

FOR THE COURT

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Copies e-served to:

Loren L. AliKhan, Esquire

Solicitor General for DC

441 4th Street, NW

Suite 600S

Washington, DC 20001

Amanda Vaccaro, Esquire

10701 Parkridge Blvd

Suite 300

Reston, VA 20191

JUUOA.CASmO

CLERK OF THE COURT

•’Wl*

•——

| m~Tt~ In

Case l:17-cv-00424-KBJ Document 11 Filed 05/10/17 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JEREMIAH BRYANT,

Plaintiff,

BORGER MANAGEMENT, INC.

Defendant.

)

No. 17-cv-0424(KBJ)

ORDER GRANTING MOTION FOR LEAVE TO FILE

AMENDED COMPLAINT AND MOTION FOR REMAND

Upon consideration of Plaintiff’s [10] Consent Motion for Leave to File

Amended Complaint and Motion for Remand, and the entire record herein, it is hereby

ORDERED that Plaintiffs [10] Motion to for Leave to File an Amended

Complaint is GRANTED, and the Clerk of this Court is instructed to Docket ECF No.

10-1 as an Amended Complaint. It is

FURTHER ORDERED that Borger Management, Inc.’s [4] Motion to Dismiss

is DENIED as moot. It is

FURTHER ORDERED that Plaintiff’s [10] Motion for Remand is GRANTED,

and this case is REMANDED to the Superior Court of the District of Columbia.

DATE: May 10, 2017

KETANJI BROWN JACKSON

United States District Judge

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