UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

THOMAS M. F RANCIS, JR., P laintif f,

v. Civil Action No. 07-1473 (JD B) DISTRICT OF COLUMBIA, et al., Defendan ts.

MEMORAN DUM OP INION Thomas Fr ancis, a

former employ ee of

the District of Columbia Offic e of Prope rty Manag ement (" OPM"), br ings this ac tion for re verse discrimination pursuant to Title VI Iof the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2, et seq., a nd for r etaliation pursuant to the District of Columbia Human Rights Ac t (" DCHRA") , D.C. Code §§ 2-1401.01, et seq. H e alleg es that, as a

white male in a pr edominantly Afric an Amer ican a g ency , he suff ere d reve rse discrimination when the District ter minated his employ

ment in 2003. He fur

ther a lleg es that, afte r he f iled an EEO c harg e, the District r etaliated a g ainst him in 2007 when he soug ht

ree mploy ment with the District but was not selec ted for two positions. Be fore the Court is the District' s motion for summary judgme nt on both counts. Upon car eful c onsideration of the parties' memoranda , the applica ble law, a nd the entire rec ord her ein, and f or the re asons set for

th below, the Court will g rant the D istrict's motion. 1

For ease of re fer ence , the Court will refe r to defe ndants' memorandum in support of motion for 1 summary judgme nt and def

endants' reply

as " Def s.' Mem." and " Def

s.' Reply ," r espec tively , and to plaintiff' s opposition t o defe ndant' s motion for summary judgme nt as " Pl.'s Mem." The Court will refe r to exhibi ts attache d to the parties' motions as "De fs.' Ex ." a nd Pl.'s Ex." Where both parties ha ve submitted an exhibit , the Court will cite only one.BACK GR OUND

Fr ancis be g an wor

king f or OPM in 1999 as hea d of the Protec tive Service s Division -- a Gra de 14 position. See Pl.'s Ex. 2 at 25 ("F ranc is Dep." ). In that role, he supervised D istrict and contra ct law e nforc ement off icer s and sec urity

guards, a nd oversa w the fa cilities and policies pertinent to sec urity . I d. In 2000, his job was conver ted to an at- will Manag ement Supervisory Service (" MSS ") position. S ee D efs.' Ex . 2 (" MSS Offe r and A cce ptance ") . And in 2002, the position was rec lassified fr om Grade 14 to Grade 15. See De fs.' Ex . 3 (" Request for Per sonnel Action" ). Around July

or August of 2002, Deputy Mayor He rb Tillery , an Af rica n Americ an, appointed Mar celine A lexander, also an A frica n Americ an, as Chief

of Staff of

OPM. See Pl.'s Ex . 7 at 21, 22, 29-35 (" Alexander De p.") ; Fra ncis Dep. at 90. At the time, the "pe rce ption of the depar tment as a whole was ve ry , very bad." Alexander De p. at 82. Councilmember Jim Gra ham

was c onductingoversight hear ings into alleg ations surroundingOPM's a ctivities. See id. at 57. The Dire ctor of O PM, Tim Diamond, and the Deputy Direc tor, Michae l L orusso, wer e suspec ted of cr iminal activity . See id. at 82. B oth eventually left the a g ency

over the se eve nts, and L orusso pleade d guilty

to criminal cha

rg es for actions take n at OPM. See id. at 58-59. After Diamond 2 and L orusso' s depar

tures, Alexander

beca me ActingDirec tor of OPM. See id. at 21. On J uly 14, 2003, Alexander g ave F ranc is notice that his employ ment was be ing terminated e ffe ctive Jul y

29, 2003. See De fs.' Ex . 6 (" Termination L etter" ). The te rmination was without cause pur suant to his at-will status. S ee id.; F ranc is Dep. at 151. Although Alexander g ave no r eason f

or F ranc is's ter

mination at the time, she stated in her deposition that she believed

The Court take s judicial notice of L orusso' s criminal conviction in United States v. L orusso, 2 No. 04-CR-00454 (D.D .C. J an. 29, 2009) ( Urbina) (ECF D oc. No. 56, Judgment). 2that the offic e nee ded to be " ree ng ineer ed" in order to r estore c onfidenc e in it. Alexander De p. at

82, 84-85. She fur

ther stated that she made the decision to terminate F ranc is after hear ing numerous alleg ations about alleg ed improprieties in whic h he wa s involved. See id. at 85. Ther e

wer e, in her

words, " too many

smoking guns" a

round him. I d. at 86. These alleg ations included improper involvement with a c ontrac t, failure to r eport stolen guns, improperly removingguns without signingthem out, outfitti ngpersona l vehicles with equipment, a nd takingg overnme nt vehicles home . See id. at 60-62. After Fr ancis' s termination, his positi on was a dvertised at the Gra de 15 leve l. See Def s.' Ex . 7 (" PSM First Va canc y Announce ment") . When the sear ch g ener ated f ew c andidates, the position was re-a dvertised at the Gra de 14 leve l, with the ag ency stating it wa s interested in a larg er pool of a

pplicants. See De fs.' Ex . 9 (" PSM Second Va canc y Announce ment") ; Defs.' Ex . 8 (" PSM First Selec tion Certificate" ). On or a round De cembe r 15, 2003, Plez J enkins, an Af rica n Americ an, wa s hired fr om this new pool of applicants. See Def s.' Ex . 11 (" Second Selec tion Certificate" ); Pl.'s F irst Am. Compl . at ¶ 20. Car ol Mitt en, a white woman, wa s the hiring officia l. See Pl.'s Ex. 9 at 18-19 (" Mitten Dep." ). Alexander ha d left OPM on Dec ember 3 or 4, 2003, almost five months after terminatingFr ancis, a

nd was not involved in the dec ision to hi re J enkins. See Ale x ander

Dep. at 101. Fr ancis then, f

or the fir st tim e, bec ame suspicious that the District ha d terminated him with an " ag enda" to replac e him with an Afr ican Ame rica n. Fr ancis De p. at 149. On May 20, 2004, he filed a

discrimination char g e with the EEOC. De fs.' Ex . 13 (" Charg e of Discrimination") . Six teen months later, on Septe mber 15, 2005, the EE OC issued a two-pa g e deter mination summ arily

concludingthat there was c ause to be lieve F ranc is was terminate d based on r ace . Def

s.' Ex . 14 (" EEOC Dete rmination")

. 3In Fe bruar y 2007, over a

year afte r issuance of the EEO C Determination, F ranc is applied for the position of Risk Manag ement Coordinator ( job refe renc e #5881) w ith OPM. S ee D efs.' Ex . 17 (" #5881 Vac ancy

Announce ment") ; Defs.' Ex . 18 (" #5881 Selection Certificate" ). Although F ranc is was ra

nked we ll qualified for the position, he was not selec ted for the job. See #5881 Selec tion Certificate. Instead, Sony a Willi ams, an interna l candidate who was a lso considere d well qualified, w as chose n on April 20, 2007. I d. A fe w months later, in September 2007, Fr ancis a

pplied for a

nother job with the District: Manag ement Ana ly sis Office r (job re fer ence #7779) with the Off ice of Risk Manag ement. See Def s.' Ex . 16 (" Fr ancis Resume/Application for #7779" ); Def s.' Ex . 22 (" #7779 Selection Certificate" ). F ranc is was consider ed qualifie d for the position (see #7779 Selection Certificate), but he was not sele cted f

or that job either. I

nstead, Ga il Allen, a qualified c andidate w ith substantial insurance manag ement experienc e, wa s selecte d on October 5, 2007. See id.; Def

s.' Ex . 23 (" Allen Application" ). Fr ancis filed this suit on August 15, 2007, assertingclaims under T itle VI Iand the D.C. Human Rig hts Act based on his ter mination and defe ndant' s subsequent ac tions alleg edly damag ing his prof

essional re putation. Compl ., Counts I -VI . On September 28, 2007, Fr ancis sent notice pursua

nt to D.C. Code § 12-309 of his intent to sue the District of Columbia under the D.C. Human Rights Ac t for discrimination with respe ct to his termination and for r etaliation with respe ct to the non-sele ction decisions. See De fs.' Ex . 25 (" Notice L etter" ). Ther eaf ter, on October 22, 2007, he filed his F irst Amended Complaint ref ining his discrimination claim (Count I ), dele ting the e arlier

reta liation claims conce rninghis professional re putation, and addinga reta liation claim under the D .C. Human Rights Ac t based on the non- selec tions (Count I I ).

4STANDARD OF REVIEW

Summary judgme nt is appropriate when the ple ading s and the e vidence demonstrate that "the re is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of la

w." Fe d. R. Civ. P . 56(c) . The pa rty seekingsummary

judgme nt bear s the initial responsibility

of demonstrating the a

bsence of a g enuine dispute of material fa ct. See Celotex Crop. v. Catrett, 477 U.S. 317, 323 (1986). The moving pa rty may succe ssfully

support its motion by

identifying those portions of " the pleading s, the discover y and disclosure materia ls on file, and a ny aff idavits" that it believe s demonstrate the absenc e of a g enuine issue of

materia l fac t. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S . at 323. In deter mining whe ther ther e exists a ge nuine issue of mate rial fa ct suffic ient to prec lude summary judgme nt, the Court must reg ard the non-movant' s statements as true and ac cept a ll evidenc e and ma

ke all infe renc es in the non-movant' s favor . See Ande rson v. L iberty L obby , Inc., 477 U.S. 242, 255 (1986). Anon-movingparty , howeve r, must establish more than the "me re e x istence of

a scintilla of evide nce" in support of its posit ion. I d. at 252. Thus, the nonmoving pa

rty cannot r ely

on mere speculation to defeat a motion for summary judgme nt. See Hutchinson v. Cent. Intellige nce A g ency , 393 F.3d 226, 229 ( D.C. Cir. 2005). Nor c an the nonmoving pa

rty rely on hear say

statements or c onclusory statements with no evidentiar y basis to establish a g enuine issue of materia l fac t. See Assoc. of Flig ht Attendants v. Dep' t of Tra nsp., 564 F.3d 462, 465 ( D.C. Cir. 2009). "I f the e vidence is merely colora ble, or is not signific antly probative, summar

y judgme nt may

be grante d." Anderson, 477 U.S. at 249- 50 (citations omitted). Moreove r, a movingparty may succe ed on summary

judgme nt by

pointing to the absenc e of e vidence proff ere d by the non-movingparty . See Celotex, 477 U.S. at 322; see also Ander son, 477 U.S. at 252. 5ANALYSIS

I. Dism issal of

OP M from the Ac tion "[B]odies within the District of Columbia gove rnment ar e not suable a s separ ate e ntities" unless statutory

authority exis ts to the contrar

y . Br axton v. Nat'l Capital HousingAuth., 396 A.2d 215, 216 (D.C. 1978) ( citations omitt ed). Sec tions 10-1001 throug h 10-1015 of the D .C. Code establish the duties and powe rs of the O ffice of Proper ty Manag ement. None of those provisions gr ants OPM the authority to sue and be sued. OPM is theref ore non sui juris. Acc ording ly , the Court dismiss es OPM from this action, leaving the District as the sole defe ndant. II. Th e Title VII Discr im ination Claim A. Tim eliness of

the Title VII Charge of Discrim ination The District a

rgues that F ranc is's Title VI I discrimination claim should be dismissed as untimely beca use he f iled his EEO cha

rg e on May

20, 2004, afte r the a

pplicable limitations period ha d expired. See De fs.' Mem. at 18. F ranc is responds that his char g e wa s timely , beca use the limitations period a ccr ued fr om the time he had a rea sonable suspicion of the a lleg ed injury

. See Pl.'s Me m. at 14-15. Wit h respe ct to a Title VI Iclaim for e mploy ment discrimination, a plaintiff must file an administrative complaint with the EEOC " within one hundred a nd eig hty day s after

the alleg ed unlawful e mploy

ment prac tice occ urre d." 42 U .S.C. § 2000e-5(e) (1). How ever , if the plaintiff "initially instituted proc eeding s with a State or loca l ag ency with authority

to gr ant or see k relief from such pr actice ," the n the dea dline become s "thre e hundre d day s after the alleg ed unlawf

ul employ ment prac tice occ urre d." I d. Moreove r, " wher e a w orkshar ing a g ree ment exis ts betwee n the EEOC and a

local fa ir employ

ment prac tices ag ency ," e mploy ees ha ve up to 300 day s to file 6pursuant to 29 C.F.R. § 1601.13(a )(4) (ii)(A) ; Carter v. G eorg e Washing ton Univ., 387 F.3d 872,

879 (D.C. Cir. 2004) (r ejec ting e mploy er' s contention that a 180-da y limit ations period applied to plaintiff who had f

irst filed her c harg e with the EEOC in lig ht of a wor ksharingagree ment with the re levant loca l ag ency , and holdingthat "[s]i nce the EEOC had such [a wor ksharing ] agree ment with the D.C. Offic e of H uman Rights . . . [plaintiff] had up to 300 day s to file [t he char g e].") The EEO C and the D.C. Off ice of Human Rig hts had a wor ksharingagree ment in effe ct at the time Fr ancis filed his c harg e with the EEOC on May 20, 2004, and the EEO C notified the D.C. Offic e of H uman Rights that, pursua nt to that ag ree ment, the cha rg e would be initially investigated by

the EEOC. See Char g e of D iscrimination at 1-2. Ac cording ly , pursuant to 42 U.S.C. § 2000e-5(e )(1) and 29 C.F.R. § 1601.13(a )(4) (ii)(A) , the applica ble limitations period in this case is 300 day s. See Carte r, 387 F .3d at 879. The District c ontends that, eve n applying the longe r per iod, Fra ncis' s EEO cha

rg e still is untimely beca use the 300 c alenda

r day s expi red on Ma

y 9, 2004 -- be fore his May 20, 2004 EEO char g e wa s filed. Howeve r, the g ener al ac crua l rule for reme dial civil actions in this circuit is 3 the " discovery

of injury " r

ule. Commc' ns VendingCorp. of Ariz., Inc. v. F CC, 365 F.3d 1064, 1074 (D.C. Cir. 2004). " Under that rule, a

cause of ac tion accr

ues either when a rea dily discovera ble injury occur s or, if an injury

is not readily

discovera

ble, when the plaintiff should

Fr ancis wa s notified on J uly 14, 2003 that he would be te rminated e ffe ctive Jul y 29, 2003. The 3 Court calculates the limitations period from the date Fr ancis re ceive d the letter of termination, not the date the te rmination beca me ef fec tive, beca

use the pe riod runs " when the pla intiff is g iven unequivoca l notice of the te rmination decision, eve n if one of the eff ects of the decision -- the eve ntual loss of the employ ee' s position -- does not occur until later." Powell v. Am. Red Cross, 518 F. Supp. 2d 24, 32 (D.D.C. 2007) ( citing D el. State Coll. v. Ri cks, 449 U.S. 250, 258 (1980))

. 7have disc overe d it." I d. (citingMCITelec omms. Corp. v. FCC, 59 F.3d 1407, 1417 (D.C. Cir.

1995)). Ac cording ly , the time for c alculating the limitations period runs f rom the time a Title VI Iplaintiff deve lops "a

rea sonable suspicion of the a lleg ed har m." Johnson v. Holder, 598 F. Supp. 2d 50, 55 (D.D.C. 2009), af f' d, 2010 WL2162171 (D.C. Cir. 2010). Fr ancis a rgues that he ha d no rea son to suspect his termination was discriminatory until he lea rned that the position he held had bee n downgrade d to the Gra de 14 leve l and offe red to Plez J enkins, alleg edly

a less qualifie d Afric an Amer ican. See Pl.'s Mem. at 12. Dr awingall

rea sonable infe renc es in Fr ancis' s favor , a re asonable jury could find that there was no ba sis for Fr ancis to re asonably

suspect discrimination until that occurr ed, since , acc ordingto both Fra ncis and Alexander , there wer e no indicia of discrimination at the time he wa s terminated in Jul y 2003. See Pl.'s Me m. at 7 (citingFr ancis De cl. ¶ 13 a nd Fr ancis De p. at 149); see also Alexander Dep. at 98; Termination L etter ( stating F ranc is was terminate d without cause pur suant to his atwill status). Thus, calculating the 300- day limit ations period fr om November 7, 2003, when the downg rade d position was first publicly adver tised, see Sec ond Vac ancy Announce ment at 1, the period did not expire until S eptember 2, 2004, well af

ter F ranc is filed his charg e. B. Mer its of the Discrim ination Charge In assessingFr ancis' s Title VI Idiscrimination claim, the Court applies the fa miliar burden- shifting f

rame work set f

orth in McDonnell Doug las Corp. v. Gre en, 411 U.S. 792, 802- 07 (1973). Unde r this frame work, a plaintiff must first establish a prima fa cie c ase of discrimination by

a pre pondera

nce of the evidenc e. I d. A plaintiff " makes out a prima fac ie ca se of disparate-tre atment discrimination by establishing that: (1) she is a membe r of a protec ted class; (2) she suffe red a

n adver se employ

ment action; and ( 3) the unfa vorable action g ives rise to an infe renc e of discr imination." Mastro v. Potomac Elec . Power Co., 447 F.3d 843, 850 ( D.C. 8Cir. 2006) (quotingGeor g e v. L eavitt, 407 F.3d 405, 412 ( D.C. Cir. 2005)). In a re verse

discrimination suit, t he plaintiff must also show " additional background circ umstances that support the suspicion that the def endant is that unusual employer who discriminates ag ainst the majority ." I d. at 851 (quotingParker v. Ba lt. & Ohio R.R., 652 F.2d 1012, 1017 (D .C. Cir. 1981)). Once a plaintiff e stablishes a prima f acie case , the burde n shifts to the defenda nt to articulate a leg itimate, non-discriminatory explanation for its actions. See Smith v. Dist . of Columbi a, 430 F .3d 450, 455 (D.C. Cir. 2005). In asser ting a leg itimate, non-discriminatory explanation, an employ er " need not pe rsuade the cour t that it was actua lly

motivated by

the proff ere d rea sons. I t is sufficient if the de fenda nt's e vidence raises a

g enuine issue of

fac t as to whether it discriminated ag ainst the plaintiff." Tex. Dep' t of Cmty . Affa irs v. Bur dine, 450 U.S. 248, 254 (1981) ( citations omitt ed). I f a de fenda

nt offer s a leg itimate, non-discriminatory rea son for its actions " the district court ne ed not -- a

nd should not -- dec ide whethe r the plaintiff a ctually made out a pr ima fac ie

case under Mc Donnell Doug las." Br ady v. Offic e of Ser g eant at Arms, 520 F.3d 490, 494 ( D.C. Cir. 2008) (empha sis in original). Rather, the sole inquiry become s "whether

the plaintiff produce d sufficie nt evidence for a rea sonable jury

to find that the employ er' s asserte d nondiscriminatory

rea son was not the ac tual rea son and that the e mploy er intentionally discriminated ag ainst the plaintiff on a pr ohibited basis." Ade y emi v. Dist. of Columbi a, 525 F .3d 1222, 1226 (D.C. Cir. 2008). " Whether judg ment as a matter of law is appropriate in any

particula r ca se will depend on a

number of f

actor s. Those include the streng th of the plaintiff' s prima fa cie c ase, the probative va lue of the pr oof that the e mploy er' s expl anation is false , and any other e vidence that supports the employ er' s case and that prope rly may be conside red on a

motion for judgme nt as a 9matter of la w." Reeve s v. Sanderson Plumbing Prods., I nc., 530 U.S. 133, 148-49 (2000) ; acc ord Aka v. Washing ton Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) ( en banc ); see a lso Waterhouse v. District of Columbi a, 298 F .3d 989, 992-993 (D.C. Cir. 2002). In other wor ds, the McDonne ll Dougla s shifting burde ns framework e ffe ctively evapor ates, a

nd the only

question is "the ultimate fa ctual issue in the ca se -- discrimination vel non." Jones v. Be rnanke , 557 F.3d 670, 678 ( D.C. Cir. 2009) (citation omitted). " [T] o survive summary judgme nt the plaintiff must show that a re asonable jury could conc lude from a ll of the evidenc e that the a dverse employ ment decision wa s made for a discriminatory

rea son." L athram v. Snow, 336 F.3d 1085, 1088 (D .C. Cir. 2003); see Reeve s, 530 U.S. at 142-43. Under the circ umstances of

this case, the Court will assume without dec iding that F ranc is has established a

prima fa cie c ase of

discrimination. This is because two of the prima fa cie elements -- whether

there are "ba ckground circ umstances" that show the District discriminates ag ainst whites and whe ther the e vidence supports an infer ence of discrimination -- a re inext rica bly intertwined with the ultimate question of discr imination vel non on the entire re cord. In other wor ds, the assessment of the prima fa cie c ase a nd the question whethe r a r easona ble jury could find discrimination in light of the e mploy er' s proffe red non- discriminatory rea son are the same. See Def

s.' Mem. at 21-25 ( makingthe same a rguments conce rningFr ancis' s alleg ed failure to establish a prima fa cie c ase, the proff ere d leg itimate non-discriminatory rea son for termination, and discr imination vel non). Henc e, the Court is to "f ocus on the ke y

question of discrimination without sl og g ing thr oug h the McDonne ll Dougla s prima fa cie f actor s." See Adeyemi, 525 F.3d at 1226. The Court there fore moves to the second ste p of the McD onnell Doug las fra

mework. The District ha s proffe red a leg itimate, non-discriminatory rea son for ter

minating F ranc is 10-- that he was ter minated base d on the " alleg ations and investig ations into mi sconduct a nd improprieties by

the plaintiff, which w ere compounded by the surroundinginvestiga tion into OPM by Councilmember Gr aham a nd the FB I ." D efs.' Mem. at 25. Ac cording ly , the Court looks to the totalit y

of the e vidence in the rec ord to deter mine whether

a re asonable jury

could conclude , instead, that the District ter minated Fr ancis be cause of his rac e. This examination takes plac e, of c ourse, in the c ontextof termination of a n at-will employ ee subje ct to remova l without cause. The District off

ers spe cific e vidence supporting its cla im that Fra ncis was ter

minated due to the cloud of a lleg ations surroundinghim. Marce line Alexander wa s primarily responsible for initiating Fr ancis' s termination. See Alexander Dep. a t 50. She consulted with Deputy Mayor Tillery and Judy Ba nks, the Interim Direc tor of Personne l, in effe ctuatingthe termination. See Pl.'s Ex. 4 at ¶ 2 (" Def

s.' Supp. Resp. to P l.'s F irst Set of Interrog atories" ). Althoug h Alexander g ave F ranc is no reasons f or her decision at the time, she de scribed the underly ing r easons at her deposition. When she enter ed OPM as Chief of Staff, Councilmember Graha m was conduc ting oversight hear ings into alleg ations surroundingthe offic e, and " the per ception of the depar tment

as a whole was ve ry , very bad." Alexander De p. at 82. In particula r, Dire ctor Tim Diamond and Deputy Direc tor Michae l L orusso wer e suspec ted of c riminal activity . See id. L orusso in fac t later ple aded guilty

to criminal offe nses re lating to OPM. See id. at 57. Diamond depar ted over the alleg ations. See id. at 58. The Chief Procure ment Offic er, similarly , resigned over issues involving OPM' s use of c redit ca rds. See id. at 61. Ale x ander stated that, as Ac ting Dir ector of OPM, she believed that, in light of those cir cumstance s, "the only way that the administration was g oing to be able to re store conf idence was for

the offic e to be r eeng ineer ed." I d. at 84. 11She terminated F ranc is without cause on the grounds that he wa s at-will and it was the

"most expeditious way ." I d. at 98. B ut she elabor ated that she rea ched he r dec ision because there wer e " too many

smoking guns" a

round him. I d. at 86. In particula r, she he ard a lleg ations about him that included improper involveme nt with a contra ct, fa ilure to repor t stolen guns, improperly

removingguns without signingthem out, outfitti ngpersona l vehicles with equipment, and takingg overnme nt vehicles home. See id. at 60-62. 4 Be nita Ander son of Human Resour ces c orrobor ated the e x istence of these rumor s. For example, when aske d at deposition if she wa s surprised that F ranc is was fire d, she said she w as not beca use of the " [p] erc eptions of Mr. F ranc is" a nd "thing s that people said that he was doing ." See Pl.'s Ex. 8 at 36-37 (" Ander son Dep." ). She said, " Ihear d enough that people ha d said about him. . . . Rum ors like he wa s buying thing s with OPM money and takingthem home." I d. Moreove r, she state d, "I

wasn' t the only

one hea ringthose rumors, and the direc tor knew what was g oing on." I d. at 39. Simil arly , an employee who worke d under F ranc is, Teala B rew er, offe red de position t estimony that there was a

rea sonable fa ctual basis for believingsever al of the incidents in fac t occur

red. See Def

s.' Ex . 27 (" Br ewe r De p.") . For example, she offe red evidenc e that F ranc is took weapons home ( id. at 21); descr ibed instance s where she believe d he used funds inappr opriately (id. at 40-47) ; claimed he took g overnme nt vehicles home ( id. at 58); and g ave e x amples whe re he mischara cter ized his posi tion to salespeople (id. a t 79-85).

The District a lso refe rs to alleg ations that Fra ncis made misre prese ntations on his resume. See 4 Def s.' Mem. at 7-8; see also Ander son Dep. at 36 (stating that she hea rd " [r] umors like his resume w asn' t all fac t") . Although F ranc is does not directly dispute this rumor, Alexander off ers inconsistent testimony

as to whethe r she lea

rned of this alleg ation prior to or a fter te rminating Fr ancis. See Alexander De p. at 46-47. This matter is not mater ial to whether summary judgme nt is appropriate, and ther efor e the Court nee d not resolve it. 12Despite the substantial e vidence supporting the District' s justification, Fra ncis contends that the justification is mere pr etext dis guising ra cial discrimination. A plaintiff may establish prete x t "dire ctly

by persua ding the court that a discriminatory

rea son more likely

motivated the employ er or

indirectly

by showingthat the employ er' s proffe red e x planation is unworthy of

cre dence ." T ex. Dep' t of Cmty . Affa irs, 450 U.S. at 256 (citation omitted). B ut it is not enoug h to "show that a re ason g iven for a job action is not just, or fair, or se nsible. He must show that the explanation give n is a phony rea son." F ischbac h v. Dist. of Columbi a De p' t of Correc tions, 86 F.3d 1180, 1183 ( D.C. Cir. 1996) (citation omitted). " [T] he issue is not ' the cor rec tness or desirability

of [the] rea sons offer ed . . . [but] whether the employ er hone stly

believes in the

rea sons it offers.' " I d. (quotingMcCoy v. WGN Conti nental B roadc astingCo., 957 F.2d 368, 373 (7th Cir. 1992)). More over, " [t ]he more valid a r eason a ppear s upon evaluation, the less likely a cour t will be to find that reason pr etextual." Ryan v. Reno, 168 F .3d 520, 524 (D.C. Cir. 1999) (quotingBr azil v. United St ates De p' t of Navy , 66 F.3d 193, 197 ( 9th Cir. 1995)). Consideringthe re cord in its entirety , the Court finds that no rea sonable jury could find pre text based on F ranc is's pr offe r of e vidence

. Fr ancis doe s not contest the exist ence of the rumor s and alleg ations, but claims that the District offe rs no evidenc e of the ir truth and that Alexander never investigated them. See Pl.' s Mem. at 22-23. B ut even a ssuming the r umors wer e neither

true nor a dequate ly

investigated -- a matter that F ranc is has not established -- F ranc is offer s no evidenc e to re fute Ale x ander ' s 5 testimony that the rumors c reated a c loud of suspicion around F ranc is and OPM. Had the r umors ultimately

been pr oven fa lse, that would do nothing to discr edit Alexander' s statement that she Alexander states that she both order ed an inve stigation of the contra ct and spoke to Fra ncis 5 direc tly . See Alexander

Dep. at 67, 72-79.

13terminated F ranc is beca use of them. I

n essenc e, F ranc is's a

rgument amounts to a claim that the termination dec ision was unfair or wrong . But a lthough F ranc is might well have done nothing inappropriate, " Title VI Iprotec ts ag ainst discriminatory decisions, not wrongones." Hairsine v. J ames, 517 F . Supp. 2d 301, 308-09 (D.D.C. 2007). Simi larly , Fr ancis' s positive perfor mance evaluations from 2001 and 2002 ar e not evidenc e of pr etext. S ee Pl.' s Mem. at 20. To be sur e, a pla intiff can a lso create an infe renc e of discrimination by

showingthat she wa s not terminated for "pe rfor mance below the e mploy er' s leg itimate expectations." Mastro, 447 F .3d at 850-51. How ever , strongpast perf ormanc e is not inconsistent with the District's a ssessment that Fr ancis wa s no longe r the right person for the job in light of the r

umors. Moreove r, the District ha s never taken the position that he wa s fired on the basis of de ficient pe rfor mance . His perf

ormanc e wa s irrele vant to the District' s proffe red

rea son for fir ing him -- namely , the cloud of suspicion c reated by the alleg ations of improper conduct. Fr ancis fur

ther c laims that the District' s justification is pretextual bec ause the District

never stated misconduct as the rea son for his termination until Alex ander ' s deposition. See Pl.'s Mem. at 23. Alexander initially told him that his termination was " not for ca use" and g ave no

rea sons for her

decision. See Pl.' s Ex . 1 at ¶ 11 (" Fr ancis De cl." ). The District similarly made 6 no statements re g ardingFr ancis' s conduct at the EEOC proce eding s or in its responses to plaintiff' s interrog atories, instea d ref err ing mor e broa dly

to his status as a Manag ement

The District moves to strike ¶ 12 of F ranc is's de clar ation as we ll as Attachment E of his 6 opposition, because the y

ref er to a nd descr ibe cor

responde nce not pr oduced dur ing disc overy . Def s.' Reply at 11. The Court finds no ne ed to re solve this issue because , even w ith consideration of that material, the D istrict is entitl ed to summary judgme nt.

14Supervisory Service employ ee who "se rved at the pleasure of the Dire ctor of O PM. See EEOC 7 Deter mination at 1; Pl .' s Ex . 3 at ¶ 2 (" Def s.' Resp. to Pl.'s First Set of Interrog atories" ); Def s.' Supp. Resp. to P l.'s F irst Set of Interrog atories at ¶ 2. Of c ourse, a

plaintiff ca

n meet his burden of

provingprete x t with evidence that "the employ er' s expl anation wa s fabr icated a fter the fac t by showingthat it contradicts other contempora

neous ac counts of the e mploy er' s decision." Aka, 156 F .3d at 1295. B ut here , Alexander' s later state ments are consistent with a dec ision to fire him without cause. And ther e is no conflict betwe en Alexander ' s subsequent explanation and the position that Fra ncis was terminated w ithout cause a s an at-w ill employ ee, a s stated in interrog atory response s. An employ er ne ed not explain its rea sons for firingan at- will employ ee w ithout cause. That it eventua lly

does so duringdiscovery does not establish prete x t. See B ennett v. Chertof f, 425 F .3d 999, 1002-03 (D.C. Cir. 2005) ( "[T]he fac t that the termination letter . . . state d unsuitabilit y as the re ason for

. . . termination is not inconsistent with t ermination on the ba sis that [ plaintiff] could not sustain a sec urity clea ranc e." ). Nor is Fr ancis' s evidenc e that OPM did not comply with its procedure s for ter minating a

n MSS employ ee suf

ficient to establish pre text . See Pl.'s Me m. at 21. To be sure , an " employer' s failure to follow established proc edure s or cr iteria" can be grounds for f inding pr etext in s ome

Fr ancis doe s not contend that the EEO C Determination of " rea sonable c ause" to find 7 discrimination binds the Court, nor could he. It is well established that an EEO C determination does not have any

binding e ffe ct in a collate ral Title VI Icivil action. See Scott v. J ohanns, 409 F.3d 466, 469 ( D.C. Cir. 2005). More sig nificantly , the EEOC De termination is so unpersuasive and conc lusory

that, even if

it could properly

be admitted into evidenc e, no re asonably jury could find discrimination based on the D eter mination. The finding , on its face , is based solely on the District' s decision to fire F ranc is without suppl ying a n explanation (which wa s consistent with his at-will status) and filling the position wit h an Af rica n Americ an employee. See EEOC Deter mination at 1. The EEOC cited no othe r evide nce to support its conc lusion that the District acte d with discriminatory motive. Hence , it does not alter this Court's a naly sis. 15circ umstances. B rady , 520 F.3d at 495 n.3. But " [a] n employ er' s failure ' to follow its own

regulations and proce dures, a lone, may not be suffic ient to support' the conclusion that its explanation for the cha lleng ed employ ment action is prete x tual." F ischbac h, 86 F.3d a t 1183 (quotingJ ohnson v. L ehman, 679 F .2d 918, 922 (D.C. Cir. 1982)). Her e, F ranc is presents insuffic ient evidenc e to demonstrate that there wer e " established proce dures or

criter ia" that OPM should have followed in e ffe ctuatinghis J uly 2003 termination. He of fer s a statement by

Be nita Ander son that a termination ac tion ordinarily should go through the hea d of the DCHR -- as she puts its, "[a]t least that was my understanding " - - and a

simil ar statement by

L eah T reat, an OPM Chief of Staff hir ed four y ear s after

his termination. See Ander son Dep. at 21; Pl .' s Ex . 10 at 4, 54-60 (" Treat Dep." ) (se tting for th her " understanding " of how a ter mination would work wher e per formanc e wa s an issue). Those statements fa il to demonstrate that, at the time of F ranc is's ter mination in 2003, there wa s a depa rture f rom "e stablished proce dures" for a n at-will employee suspe cted of malfea sance (not poor perf ormanc e). Eve n assuming that there ha d been suc h a depa rture, mor eover , no rea sonable jury could find that the a lleg ed depa rture f rom proce dure e stablishes pretext in li ght of the undisputed cloud of suspicion surroundingFr ancis' s activities. Fr ancis fur

ther c ontends that the District' s expl anation is prete x tual beca use neither Alexander nor he r succ essor, Mitten, fire d anyone except F ranc is, sugg estingthat no "r eeng ineer ing" in fac t occur red. See Pl.'s Mem. at 21- 22. Howeve r, as the D istrict notes, Fr ancis " fails to consider that the ree ng ineer ing of OPM was the re moval of Dire ctor Tim Diamond, Deputy

Direc tor Michae l L orusso, and himself fr om the leade rship of OPM." D efs.' Reply at 18. Moreove r, to the extent Fra ncis sug g ests he wa s treate d differ ently than similarly situated Afr ican Ame rica n employ ees, he fails to supply evidenc e to support this contention. 16Evidence of disparate treatment require s that "a ll the releva nt aspec ts of [t he plaintiff' s] employ ment wer e ' near ly

identical' to those" not re moved. Roy all v. Nat' l Ass'n of L etter Carrie rs, AF L -CI O, 548 F.3d 137, 145 ( D.C. Cir. 2008) (citations omitted). Fr ancis ha s not shown that another

employ ee w as similarly

situated, and ther efor e he c annot establish pre texton this basis. His claim that he wa s one of only nine white employees out of a total of 189 is simi larly unpersua sive. This statisti c does not shed light on whether whites wer e tre ated less f avora bly than Afr ican Ame rica

ns beca use it fails to indicate how ma ny whites applied for

positions at OPM relative to how many wer e hire d. See Hunter

v. Rice, 480 F . Supp. 2d 125, 136 (D.D.C. 2007). Nor doe s it show that white employees w ere terminated more often than similarly situated Afr ican Ame rica ns. Fr ancis a lso offer s as evidenc e the a lleg edly "bizarr e fa cts surroundingthe selec tion of Mr. Fr ancis' s replac ement." Pl.'s Mem. at 23- 24. First, OPM downgrade d the Protective Service s Manag er position from Gr ade 15 to Gr ade 14 - - the position's grade level whe n Fr ancis first assumed it -- a

nd eventua lly

offe red it to Plez J enkins. See PSM First Vac ancy Announce ment; PS M Second Va canc y Announce ment; Second Selection Certific ate; Reque st for Personnel Ac tion. J enkins was a n Afric an Amer ican who c ould not have qualifie d for the position had it remained at Gr ade 15 be cause he pre viously held only a Gr ade 13 position. See Pl.'s F irst Am. Compl . at ¶¶ 20- 22. Second, De puty Mayor Tillery , who par

ticipated in the decision to terminate F ranc is, advised Carol Mitten to offe r the job to J enkins. Mitten Dep. at 18-19. F ranc is states that this pattern of eve nts shows that his supervisors had an " ag enda" and "w ere looking to hire a spec ific per son for that job and I was in the wa

y ." F ranc is Dep. at 149.

17Even if the D istrict terminated F ranc is to give the job to a pre- selec ted re place ment,

"[p]reselec tion . . . does not violate Title VI Iwhen suc h prese lection is based on the qualifications of the party and not on some basis prohibited by Title VI I ." Ny

unt v. Tomlinson, 543 F. Supp. 2d 25, 39 (D.D .C. 2008) (citations omitted). In this jurisdi ction, "a plaintiff ca

n direc tly challeng e [a] qualifications-based e x planation only if the plaintiff wa s ' signific antly better qua lified for the job' tha n those ultimately

chosen." Adeyemi, 525 F.3d a t 1227 (quoting Holcomb v. Powell, 433 F.3d 889, 897 ( D.C. Cir. 2006)) (e mphasis in origina l). 8 Construing the r ecor d in the light most favor able to F ranc is, no reasona ble jury could find J enkins unqualified f

or the position of Protective Ser vices Mana g er, nor

could it find Fra

ncis signific antly

better qua lified. To be sure , J enkins' s prior position was at Gra de 13 compa red w ith Fr ancis' s Grade 15 position. But in all other respe cts J enkins was similarly qualified. He serve d as the Dire ctor of Public Safe ty for the D istrict of Columbia Publ ic L ibrary , wher e he de veloped and implemented se curity prog rams and supe rvised a w orkfor ce of union personnel. See Pl.'s Ex. 8, Attachment 7, at 4 (" J enkins Resume" ). Prior to holding that positi on, his jobs included Provost Marshal for

the Fir st Calvary

Division in Fort Hood, Texas, which enta iled supervising 275 secur ity

personne l and deve loping se curity plans. See Jenkins Resume at 5. In one re spect, J enkins was more qualified than F ranc is: he held a B .A. in law enf orce ment and an M.S. in administration (see id. at 7), wher eas F ranc is held no university degree . See Pl.'s Resp. D efs.' Stat. of Fa cts at ¶ 26. More over, Jenkins's r esume shows that he held a supe rvisory milit ary position as early

as 1987 (se e Jenkins R esume at 7), wher eas the ear liest positi on on Fr ancis' s

The Court see s no differ ence analy tically betwee n assessingthe compar ative qualific ations of 8 (1) a nd unsucce ssful applicant a nd a sele ctee , or (2) a ter

minated employ ee a

nd the selec tee chosen c ompetitively

to replac e him. 18resume da tes from 1988. See Fr ancis Resume/Application for #7779, at 3. Acc ording ly , on the 9 basis of the re cord e vidence , a re asonable trier of fac t could not find that Fra ncis was signific antly

better qua lified than Jenkins. Importantly , Alexander, who w as primar ily responsible for

initiating the ter

mination, was not involved in the decision to hire Jenkins. S he lef t the Depa

rtment by ear ly Dec ember

2003, and knew nothing a bout either the r ecla ssification of the position from Gra de 15 to 14 or how J enkins came to be sele cted. See Alexander De p. at 101. It was Carol Mitten who hire d J enkins

on or ar ound Dec ember

15, 2003. See Mitten Dep. at 18-19; Second Selec tion Certificate. Henc e, F ranc is's c ontention of prete x t or discrimination is further w eake ned by the diffe renc e in the per sonnel ultimately

responsible for

eac h action. In short, Fr ancis ha s challeng ed the District' s proffe red nondiscr iminatory rea son for his termination as pre textual on seve ral grounds, but eac h contention fa lls far short of sug g esting prete x t. The Court has also c onsidered whether the eve nts, collectively , sug g est prete x t or underlying disc rimination, and conc ludes that the evide nce, taken in the lig ht most favorable to Fr ancis, c annot re asonably be construe d to support such a finding . Indeed, F ranc is himself admits that until OPM hired J enkins, " he had no r eason to suspec t that his termination was due to

reve rse discr imination . . . si nce by all acc ounts and to all appea ranc es, the District ha d simply decide d to replac e him without cause." Pl.'s Mem. at 7. In other wor ds, Fra ncis admits that there was no indicia of

discrimination in the events immediately surroundinghis termination. And as discussed above , the hiringof Plez J enkins later in 2003 doe s not suffice to indicate

Even if Jenkins ulti mately resigned fr om the position of Chi ef at OPM because the job proved 9 "too much f

or him" ( Pl.'s Mem. at 6, quotingAnder son Dep. at 81), the Court " must beware of using 20/20 hindsig ht." F ischbac h, 86 F.3d at 1183. Rather, it looks to the operative moment when Jenkins was hired. 19discrimination, nor do the other ba ckground circ umstances a lleg ed by Fr ancis. F urthermor e, Fr ancis ha s failed to re fute the D istrict's e vidence of the c loud of suspicion that hungover se nior manag ement at OPM and, in pa rticular, the exis tence of rumors of improprieties by

Fr ancis. Consideringthe evidenc e as a whole, then, the Court c oncludes that on this rec ord no re asonable jury could find that ra ce w as a f actor in the District' s decision to terminate F ranc is. 1 0 Acc ording ly , the District' s motion for summary judgme nt on the Title VI Idiscrimination claim will be g rante d. III. Th e D.C. Hum an Rights Act Re taliation Claim Fr ancis a lso brings two r etaliation claims under the DCHRA base d on the District' s decision not to hire him y ear s later whe n he applied f or positions #7779 (Manag ement Ana ly sis Offic er) and #5881 (Risk Manag ement Coordinator) . The District c ontends that the first reta liation claim should be dismis sed for failure to comply

with the mandatory

pre- suit noti ce provision of D.C. Code § 12-309. See D efs.' Mem. at 15-17. The District further contends that summary judgme nt is appropriate on the merits of both re taliation claims beca use no re asonable trier of fac t could find on this recor d that Fr ancis' s EEO ac tiviti es we re the cause of his nonselec tion. See Def

s.' Mem. at 25-29. The Court addre sses ea ch ar gument below.

Fr ancis' s First Amende d Complaint i ndicates that he bring s this case a s a sing le-motive ca se 1 0 under 42 U .S.C. §§ 2000e-2(a) . See F irst Am. Compl . at ¶ 38 (" Def endants [acted] in order

to discriminate ag ainst plaintiff on ac count of his ra ce . . . ." ) and ¶ 41 (" In takingthe fore g oing actions and discr iminating ag ainst plaintiff on ac count of his ra ce, de fenda nts violated . . . 42 U.S.C. § 2000e-2." ). Howe ver, his brie f sug g ests that he also intends to pursue a mix ed-motive theory pursuant to 42 U.S.C. § 2000-2(m). See Pl.' s Mem. at 16-19 (c iting Ging er v. D ist. of Columbi a, 527 F .3d 1340, 1345 (D.C. Cir. 2008)). Assumingarguendo that his complaint adequately

pleads a mix ed-motive c laim, the District is neverthe less entitled to summary judgme nt for the r easons state d above. O n this recor d, no rea sonable jury could find that ra ce was e ven a motivatingfac tor in the District' s decision to terminate F ranc is. 20A. P re- Sui t Notic e under D.C. Code § 12- 309

The Court turns first to the District' s threshold argument that the first re taliation claim is barr ed for failure to comply

with the pre- suit noti ce r equire ment. Section § 12-309 provides that: An ac tion may

not be maintained a g ainst the District of Columbia for unliquidated damag es to person or

proper ty unless, within six months after the injury or damag e wa s sustained, the cla imant, his ag ent, or attorney has g iven notice in writingto the Mayor of the D istrict of Columbia of the approximate time, place, cause , and cir cumstance s of the injury or dama g e. A r eport in writingby the Metropolitan Police Depa rtment, in reg

ular c ourse of

duty , is a sufficie nt notice under this sec tion. D.C. Code § 12-309 (e mphasis added)

. Compli ance with this requirement is " mandatory as a 1 1 prer equisite to filing a

suit ag ainst the District" and is to be nar rowly construed a g ainst the claimant bec ause it re prese nts a waive r of sove reign immunit y . Dist. of Columbi a v. Ar nold & Porter, 756 A.2d 427, 436 ( D.C. 2000) (quotingHar dy v. Dist. of Columbi a, 616 A.2d 338, 340 (D.C. 1992)). 1 2 Fr ancis sent a

letter to the Mayor on September 28, 2007, informingthe District of his reta liation claims arisingfrom non-se lection for positions #7779 and #5881. See N otice L etter. The letter stated that " [a] lthough the D istrict has neve r re sponded to Mr. F ranc is' a pplications for the fore g oing positions, he has r ece ntly lear ned that both positions have since be en filled with other c andidates." I d. at 2. The D istrict contends that the letter provides insuffic ient notice as to The District of Columbia Court of Appe als has re cently held that D.C. Code § 12-309 a pplies 1 1 to claims under the D CHRA. See Owe ns v. Dist. of Columbi a, 993 A.2d 1085, 1089 ( D.C. 2010); ac cord F aison v. Dist. of Columbia, 664 F. Supp. 2d 59, 65 (D.D.C. 2009); B y rd v. Dist. of Columbia, 538 F. Supp. 2d 170, 175-76 (D.D .C. 2008); Kennedy v. Dist. of Columbi a Gov' t, 519 F. Supp. 2d 50, 57 (D.D .C. 2007). "T he re quirement of pr ompt notice was de signe d to enable D istrict officials to make a prompt 1 2 investigation before evidenc e wa s lost or witnesses become unavailable , to corre ct potentially hazardous conditions, and to settle mer itorious claims." Wharton v. Dist. of Columbia, 666 A.2d 1227, 1230 (D.C. 1995) (c itations omi tted). 21position #7779 (Manag ement Ana ly sis Office r) be cause Fr ancis ha d not y et suffe red a n injury

. See De fs.' Mem. at 16-17. This is bec ause the position was not filled until the followingwee k, on October

5, 2007, and indee d, Fr ancis still appear ed on the se lection ce rtificate for the job on October 4. Henc e, the District a

rgues that the injury

had not y et occ urre d when F ranc is sent his letter on Septembe r 28, 2007. See id. at 17; #7779 Selection Certificate

. The plain languag e of § 12- 309 controls the re solution of this issue. Notice must occ ur "w ithin si x months after the injury or dama g e wa s sustained." D.C. Code § 12-309 (e mphasis added) . But he re, F ranc is sent his letter befor e the injury -- i.e., his non-se lection -- oc curr ed. "[T]he District cer

tainly was not put on notice of a claim that did not y et exist ." K ennedy v. Dist. of Columbia Gov' t, 519 F. Supp. 2d 50, 58 (D.D.C. 2007) ( holding that plaintiff f ailed to comply with § 12-309 when pla intiff sent a notice letter that did not mention an injury beca use it had not y et occ urre d). To be sure , there may

be a the oretica l possibil ity that Fr ancis ha d been e liminated from consideration for the job prior to sendingthe notice letter . But, if so, F ranc is has not car ried the burden of provingit. His only

evidenc e is his statement that he " lear ned" from some unknown person that both positions had been " filled with other ca ndidates." Notice L etter at 2. But the information provided by

that unknown per son is inadmissi ble hea rsay . Hea rsay evidenc e is inadmissible unless it falls withi n a statutory exception. See Gre er v. Paulson, 505 F .3d 1306, 1315 (D.C. Cir. 2007). " [O] n summary judgme nt, statements that are impermissible hearsa y or that are not based on pe rsonal knowledg e ar e pre cluded f rom consider ation by

the Court." Rigg sbee v. D iversity

Servs., Inc., 637 F . Supp. 2d 39, 46 (D.D.C. 2009) (c iting Gr eer , 505 F.3d at 1315). He nce, on this re cord, the evidenc e shows only that Fr ancis wa s injured on Octobe r 5, 2007, when the D istrict selecte d another applicant f

or the job he sought. Be cause Fr ancis' s notice 22letter wa s submitt ed bef ore tha t injury , it is i nsufficie nt under the pla in languag e of § 12- 309. Acc ording ly , the District is entitled to summary judgme nt with respec t to the portion of Fr ancis' s reta liation claim pertainingto positi on #7779. B. Mer its of the Retaliation Claim s The Court next turns to t he mer its of the reta liation claims. The District moves for summary judgme nt on the merits with respec t to the remainingnon-selec tion decision (#5881), and also see ks summary

judgme nt on the merits with respec t to #7779 as an additional basis for summary judgme nt. The familiar burden- shifting f rame work set f

orth in McDonnell Doug las applies to reta liation claims under the DCHRA. See Howar d Univ. v. Gre en, 652 A.2d 41, 45 n.3 (D.C. 1994). Unde r this frame work, the pla intiff must first establish a prima fa cie c ase by a preponde ranc e of the evidenc e. McD onnell Doug las Corp., 411 U.S. at 802. To establish a prima fa cie c ase of

reta liation under the DCHRA, a plaintiff must show: (1) that she wa s eng ag ed in a protec ted ac tivity , or that she oppose d prac tices made unlawful by the DCHRA; (2) that the employ er took a

n adver se per sonnel ac tion ag ainst her; and ( 3) that a c ausal c onnection existed betwee n the two. Howa

rd Univ., 652 A.2d at 45. I f a pla intiff fails to establish one of those elements, the " entire c laim fails." I d. Fur thermore , as under

Title VI I , in determiningwhether judgme nt as a matter

of law is appr opriate in a ny particula r ca se, the Court must consider the employ er' s leg itimate non-reta liatory rea son for the a dverse action and, ultimately , whether the plaintiff has " offe red suf

ficient e vidence for a

rea sonable jury

to find that retaliation . . . ac tually motivated the employ er' s decision." See Hamilton v. Howard Univ., 960 A.2d 308, 314 (D .C. 2008) (c itations omi tted).

231. The Pr im a F acie Case

The District c oncede s that Fra ncis eng ag ed in protec ted ac tivity by filing his EEO c harg e and assumes f

or this motion t hat non-sele ction for a n open position constitutes adverse personne l action. De fs.' Mem. at 26. Howe ver, the District argues that F ranc is cannot show a c ausal

connec tion between his EEO char g e and the adver se ac tions at issue beca use too much time passed be tween his EEO activity and the non- selec tion decisions. See id. In response , Fr ancis alleg es that L eah T reat knew of his cla ims ag ainst the District at the time she made her se lection decision for

position #5881 on April 20, 2007, and theref ore a n infere nce of

causation can be drawn. See Pl.'s Me m. at 25. He doe s not discuss whether the hiringofficia l for #7779 knew 1 3 of his protec ted ac tivity

when he made his hiringdecision in Octobe r 2007. A " causa l connec tion . . . may be esta blished by

showingthat the employer ha d knowledg e of the employ ee' s protecte d activity , and the a dverse . . . action took place shortly afte r that ac tivity ." Roc hon v. Gonzales, 438 F.3d 1211, 1220 ( D.C. Cir. 2006) (quotingMitchell v. Ba ldridg e, 759 F .2d 80, 86 (D.C. Cir. 1985)). In other wor ds, where a ca usal conne ction is based on the employ er' s knowledg e of the plaintiff' s protecte d activity , temporal proximit y is also require d. Although F ranc is claims that a plaintiff may establish a ca

usal conne ction by

evidenc e other than te mporal proximi ty , he has of fer ed no such e vidence . See Pl.'s Me m. at 10-11 n.5. Henc e, the Court looks to whether temporal proximit y , in combination with the employ er' s knowledg e, is sufficie nt to support an infere nce of a ca usation.

Fr ancis c hara cter izes Treat' s "know ledg e" as aw are ness of his havingsued OPM. See Pl.'s 1 3 Mem. at 25. B ut it is fac tually impossibl e that Tre at knew of this lawsuit in Februa

ry of 2007 beca use F ranc is had not filed or g iven notice of suit at that tim e. He nce, the Court will assume that Fr ancis mea

ns to refe r to Tre at' s knowledg e of his EEO a ctivity

. 24As to position #5881 (the Ris k Manag ement Coordinator position in OPM), Fra ncis has proff ere d evidenc e indicatingthat the selec ting of ficial -- L eah T reat -- knew of his EEO ac tivity , but he is unable to show ca usation throug h a tempora l connec tion because the non-sele ction took place over a

y ear afte r his last protecte d EEO ac tivity . For temporal proximit y

to support an infere nce of

reta liation, the events must be " very close." See Clark County Sch. Dist. v. Bre eden, 532 U.S. 268, 273 (2001) (pe r cur iam). This Circuit has found that g aps as small as " two and one-ha lf months. . .would be untenable" for the pur pose of e stablishing ca

usation. Taylor v. Solis , 571 F.3d 1313, 1322 ( D.C. Cir. 2009); see a lso Hammond v. Chao, 383 F. Supp. 2d 47, 59 (D.D.C. 2005) ( "A lthough plaintiff' s supervisor . . . wa s awa re of the plaintiff' s . . . EEOC complaint . . . the y ear -and- a-ha lf g ap is too g reat to permit temporal proxim ity alone to esta

blish

a ca usal conne ction.") (citations omitted). Her e, we ll over a year separ ates the date of the EE OC Deter mination (the last rec orded EE O ac tivity) on September 15, 2005, and the date of his nonselec tion for #5881 on April 20, 2007. See #5881 Sele ction Certificate. Ther efor e, the Court holds that Fra

ncis has fa iled to demonstrate a causa l connec tion between his EEO activity and his non-selec tion for position #5881. A timeline more fa

vorable to Fra

ncis underlies the non-selec tion for position #7779, a Manag ement Ana ly sis Office r position with the Office of Risk Manag ement (a n ag ency separ ate from OPM). B ut even he re, F ranc is fails to prove a c ausal c onnection. He filed this lawsuit ag ainst the District on August 15, 2007, assertingclaims under T itle VI Iand the D.C. Huma n Rights Act, a

nd the non-sele ction occur red on or about Octobe r 5, 2007. He nce, the proxi mity betwee n the Title VI I

activity and the a dverse action is much closer -- a bout seven we eks. B ut Fr ancis ha s offe red no e vidence that the selec ting of ficial in the Of

fice of Risk Manag ement knew that this lawsuit ag ainst the District and OPM had be en filed. See Pl.'s Mem. at 25. 25Fur

thermore , there is no basis for the Court to presume that the selec ting of ficial kne w of the lawsuit, espec ially

consideringthat the Off

ice of Risk Manag ement wa s not acc used of wrong doing in the c omplaint filed on August 15, 2007. Henc e, the a bsence of any

evidenc e of 1 4 employ er know ledg e of r eleva nt protecte d activity

defe ats the ca

usal conne ction asser

tion. Acc ording ly , the District is entitled to summary judgme nt on both non-selection cla ims because Fr ancis ha s not established an e ssential prima fa cie e lement of re taliation -- a c ausal c onnection betwee n any

of his protec ted EEO a ctivity and the non- selec tions for positions #5881 or #7779. 2. Assessm ent of the District 's Legitim ate N on-ret aliatory Re ason an d Pr ete xt Assuming a

rguendo that F ranc is has established a pr ima fac ie ca se of r etaliation for e ach non-selec tion, there is an indepe ndent g round for enter ing summar

y judgme nt for the District. The District ha s produce d a leg itimate non-reta liatory rea son for e ach non- selec tion action, and Fr ancis ha s failed to off

er e vidence from which a rea sonable jury

could find those re asons to be prete x t for re taliation .

a. P osition #5881 The District off

ers the f ollowing leg itimate, non-reta liatory rea son for sele ctingSony a Wil liams rather

than Fr ancis for

position #5881 (Ri sk Manag ement Coordinator) -- she was a n internal c andidate w orkingin risk manag ement under the supervision of L eah T reat and was a "known quantity ." D efs.' Mem. at 29 (c iting Tre at Dep. a t 29). As evidenc e that the District' s

rea son is pretext, Franc is argues that he w as more qua lified than Will iams and that he w as g iven ranking s that were patently too low duringthe selec tion process. See Pl.'s Mem. at 25.

Indeed, the alleg ations ag ainst the Off ice of Risk Manag ement ca

me only afte r that ag ency 1 4 made its non-sele ction decision, which w as then incor porate d into Fra

ncis' s First Amende d Complaint on October 22, 2007. 26The re levant question, of c ourse, is not whethe r F ranc is was qualified, but whe ther he was

signific antly

better qua lified than Will iams. Courts do not serve as " a super -per sonnel depar tment that ree x amines an e ntity ' s business decisions." B arbour v. Br owner , 181 F.3d 1342, 1346 (D.C. Cir. 1999) (c itation omit ted). Ac cording ly , "a plaintiff ca

n direc tly challeng e [a] qualifications-based e x planation only if the plaintiff wa s ' signific antly better qua lified for the job' than those ultimately

chosen." Adeyemi, 525 F.3d at 1227 (quoting H olcomb, 433 F.3d at 897) (empha sis in original). Fr ancis c ontends that he wa s more qualifie d than Will iams based pr imarily on his previous per formanc e of the require ments of the position while servingas Chief of the Protective Service s Division from 1999-2003. See Pl.' s Mem. at 25. B ut his own prior perf ormanc e, by itself, does not show that he wa s signific antly better qua lified than Will iams. Wi th respec t to Wil liams, Fra

ncis has off

ere d very littl e. The rec ord shows only that Wil liams was a Gr ade 12 manag ement ana ly st employ ed at OPM at the time of the April 2007 selec tion, with job functions split equally

betwee n risk manag ement and ma nag ement support in the Of fice of the Dire ctor. See Tre at Dep. at 30. This evidence -- a nd, in particular , the lower grade level -- is not sufficient to show that Fra

ncis was " signific antly

better qua lified" than Will iams. As this Ci rcuit has explained, "the a

pplicants' relative g rade levels at the time of the application ar e irre levant, for ' it say s litt le about the leve l of relative . . . qualifications to serve.' " B arne tte v. Chertoff, 453 F .3d 513, 517 (D.C. Cir. 2006) (c iting Stewar t v. Ashcrof

t, 352 F.3d 422, 429 (D .C. Cir. 2003)). Fur thermore , Fr ancis ha s produce d no additional information about Willi ams' qualifications to assist in the comparative inquiry . Henc e, he ha s not carr ied the burde n of showingthat he wa s

27signific antly better qua lified. 1 5 Fr ancis' s contention that he should have rec eived higher sc ores f rom Tre at in the ra

nking fac tors is simi larly

insufficient to establish an infe renc e of r etaliation. See Pl.' s Mem. at 25; Pl.'s Ex . 8, Attachment 14, at 5 (" Ranking s") . "E vidence indicatingthat an employer misjudg ed an employ ee' s perf

ormanc e or qua lifications is, of course , rele vant to the question whethe r its stated

rea son is a prete x t masking pr ohibited discrimination . . . ." F ischbac h, 86 F.3d at 1183 (citation omitted). But eve n assuming that Fra ncis should have r ece ived better score s, he off

ers nothingto sug g est that Wil liams did not deserve the score s she re ceive d. Where both applica nts are qualified, " liability

cannot r est solely

upon a judg e' s determination that an e mploy er misjudg ed the re lative qualifications of admittedly qualified c andidates." I d. (citingRamey v. Bow sher, 915 F.2d 731, 735 ( D.C. Cir. 1990)). In short, no rea sonable jury could find on this rec ord that the District' s expl anation is prete x t for re taliation. Indeed, when one c onsiders the longperiod of time -- 18 months -- that ha d passed be tween the last action on F ranc is's EEO char g e (the EEOC decision in September 2005) and the non- selec tion (April 2007), a c ontrary conclusion would be untenable. b. Position #7779 The District a lso offer s a leg itimate, non-reta liatory rea son for not selec ting F ranc is for position #7779 (Manag ement Ana ly sis Office r) - - Ga il Allen was selec ted for the position beca use she wa s more qualifie d than Fr ancis. De fs.' Mem. at 28. In response , Fr ancis off ers evidenc e that alleg edly

shows his qualifications wer e super ior to Allen' s in order to e stablish prete x t. "I n a close case , a re asonable juror would usually assume that the e mploy er is more capa ble of 1 5 assessingthe sig nificanc e of small diffe renc es in the qualifications of the candidates, or that the employ er simply

made a judgme nt call." Aka, 156 F .3d at 1294. Acc ording ly , the evidenc e her e is insufficient to establish an infe renc e of r etaliation. 28The re cord doe s not support the conclusion that Fr ancis wa s "significantly better qualified" for the position of Mana g ement Ana ly sis Office r than wa s Gail Allen. B oth had substantial manag eria l experience . Compare F ranc is Resume with Allen Application. But, unlike Fr ancis, Allen a lso had a c olleg e degree and the substantial insuranc e mana g ement experience soug ht in the job vacanc y announce ment. See #7779 Va canc y Announce ment at 2. "[C] ourts must defer

to the employ er' s decision as to which qua lities required by the job (substantive v. mana g eria l) it weig hs more hea vily ." B arne tte, 435 F.3d at 517 (citingStewart, 352 F.3d at 429). In light of F ranc is's f ailure to show that he was sig nificantly better qua lified, there is no reasona

ble basis for c oncludingthat the District' s expl anation is prete x t for re taliation. Henc e, the District is entitled to summary judgme nt on this claim as well. CONCLUSION For the fore g oing r easons, the Court will g rant the D istrict's motion for summar y judgme nt. A separ ate or der w ill be filed on this date.

/s/ J OHN D. B ATES United States District J udg e Date: August 18, 2010

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