### UNITED STATESDISTRICT COURT FORTHE DISTRICT OFCOLUMBIA

KATHERYN BOOTH, et aI., ) ) ) ) 

### Plaintiffs



### v. DISTRICT OF COLUMBIA, et al., ) Civil CaseNo. 04-1909 (RJL) ) ) ) 

### Defendants. ) 

# S"+- MEMORANDUM OPINION (April

# L,2010) [# 45 and 46] This case comes before the Court on the Second Amended Complaint ("SAC") of 12 plaintiffs who allege thattheir employer, the District ofColumbia Department of Consumer and Regulatory Affairs ("DCRA"), unlawfully discriminated and retaliated against them in violation ofTitle VII ofthe Civil Rights Act, 42 U.S.C. § 2000e 

### etseq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 623 

### etseq., ("ADEA"), the D.C. WhistleblowerProtection Act, D.C. Code § 1-615.51 

### etseq., ("DCWPA"), and the D.C. Human Rights Act, D.C. Code 

### § 2-1401 

### etseq. ("DCHRA"). Defendants moved to dismiss plaintiffs' claims, or, in the alternative, for summary judgment. After consideration ofthe parties' pleadings, relevant law, andthe entire record herein, summaryjudgmentis GRANTED for the defendants.

### BACKGROUND On October 23,2003, twelve DCRA employees sent a letterto the DCRADirector and otherD.C. Government Officials ("October 23 letter" or "grievance letter"). 1 (SAC [# 14]**~** 4.) The letter complained of"practices that the [employees] perceivedto be hampering their efforts to serve the residents ofWashington." (ld.) In addition, the letter set forth instances which they felt constituted unlawful discrimination against women and olderworkers. (Id.) Specifically, the letter contends that mismanagement at the DCRA "wasresulting in obstructions to enforcement ofthe housing code as well as unfair treatment ofthe Housing Inspectors." (Id.**~** 25.) Upon receiving the letter, the DCRA, according to plaintiffs, embarked upon a campaign ofretaliation, including formal and informal reprimands, poorperformance evaluations, denials ofpromotion, transferto less favorable assignments, and denials of

access to facilities and tools requiredto perform theirjobs. (ld.**~** 5) One plaintiff, Shirley Buie, claims she was retaliated against from an even earlier date, due to the fact that she had sent her own grievance letter several months earlierto many ofthe same officials who were later copied on the October 23 letter. (ld.**~** 48.) Indeed, Buie's August 20,2003 letter raised many ofthe same mismanagement allegations were contained in the October 23 letter. (ld.**~** 48-51.)

1 In all, twenty one DCRA employees signed the October 23 letter, but only twelve ofthose employees are plaintiffs in this suit. (SAC**~** 23.) The other D.C. Government officials who received the letter included the directors ofthe Office ofLabor Relations and the Office of Personnel, the Chair ofthe D.C. Council's Committee on Consumer and Regulatory Affairs, and the ChiefAdministrator ofthe Office ofthe Mayor. (Id. '124.) 2In addition to their retaliation claims, Buie, Colbert, and Johnson allege thatthey suffered discriminatory non-selection when the DCRA did not hire them for certain managementpositions. In particular, Buie complains she was passed over for a Branch Chiefposition that the DCRA neverposted. (Buie Opp'n [# 52] Ex. 1 ("Buie Decl.")**~** 9; SAC**~** 110.) Colbert and Johnson complain thatthey were notpromotedto two available LeadHousing Inspectorpositions. (SAC**~~** 68, 79.) While Buie and Colbert contend thattheir non-selection was gender- and age-based because they were passed over in favor ofless experienced men, (Buie Decl.**~** 9; SAC**~** 71), Johnson, himselfa man, only contends that the DCRA never gave him a reason for their "failureto promote him." (SAC**~** 81.) At various points in 2004, all but two ofthe plaintiffs, Latson and Myers, notified the District ofColumbia oftheir intentto sue the DCRA, pursuantto D.C. Code § 12- 309. (Def.'s Mot. 

### [# 45] at 10-11.) In addition, the majority ofplaintiffs filed Equal Employment Opportunity Commission ("EEOC") complaints andreceivedright to sue letters. Johnson received his on August 17,2004. Brown, Booth, and Colbertreceived theirs on December23,2004, and Burchette and Small received theirs on February 21, 2005. (Pl.'s Surreply [# 74] Ex. I at 1-6.) Defendants concede that Buie filed an EEOC charge on March 12,2004, although Buiehas not directed the Courtto any evidence regardingthis charge, or, for that matter, her rightto sue letter. (Def.'s Surreply 

### [# 67] at 14.) OnNovember4,2004, plaintiffs filed their lawsuit in this Court. Sixmonths later, 3they filed a Second Amended Complaint. Defendants subsequently moved to dismiss the complaint, or in the alternative, for summaryjudgment. Buie, who is represented by her

own counsel, filed her own opposition to defendants' motion. Later, the remaining plaintiffs, who all share the same counsel, filed their opposition. The parties subsequently filed supplemental briefing. Defendants' motion is now ripe. 

### LEGAL STANDARD At issue is defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Summaryjudgment is the appropriate standard here because the Court and the parties, who engaged in extensive discovery, rely on matters outside the pleadings.2 Summaryjudgmentmust be granted when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and thatthe movant is entitled tojudgment as a matter oflaw."Fed. R. Civ. P. 56(c). To determine which facts

are "material," a court must look to the substantive law onwhich each claimrests. Anderson v. LibertyLobby, Inc., 477 U.S. 242,248 (1986). While the moving party "always bears the initial responsibility ofinformingthe district court ofthe basis for its motion," it does not bear an evidentiary burden to produce evidence affirmatively negating the non-movant's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Rather, once a movant challenges the sufficiency ofthe nonmovingparty's evidence on an essential element ofa claim, the nonmoving party can survive summary

2 Consistent with the Federal Rules ofCivil Procedure and the law ofourCircuit, all plaintiffs have had areasonable opportunity to present evidence outside the pleadings in opposition to defendants'motion. See Wiley v. Glassman, 511 F.3d 151, 160 (D.C. Cir. 2007). 4judgment only ifit "go[es] beyond the pleadings" and "designate[s] 'specific facts showing that there is a genuine issue for trial.'" See id. at 324 (citing Fed. R. Civ. P. 56(e)).When considering a motion for summaryjudgment, the Court must view the evidence in a light most favorable to the nonmovingparty and accord thatparty the benefit ofall reasonable inferences. See Salazar v. Wash. Metro. TransitAuth. 401 F.3d 504, 507 (D.C. Cir. 2005). However, ifa nonmovingparty intends to defeat summary judgmentthrough factual representations made in its own sworn affidavits, it must "support [its] allegations

... with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quotingHarding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or it mustprovide "direct testimonial evidence,"Arringtonv. UnitedStates, 473 F.3d 329,338 (D.C. Cir. 2006). "Indeed, for the courtto accept anything less 'would defeat the central purpose ofthe summaryjudgment device, which is to weed out those cases insufficiently meritorious to warrant the expense ofajurytrial.'" Powellv. Lockhart, 629 F. Supp. 2d 23,34 (D.D.C. 2009) (quoting Greene, 164 F.3d at 675). ANALYSIS I. Count One - Title VII Retaliation Title VII prohibits government agencies from retaliating against employees who engage in protected behaviorby asserting theirrights. See Holcomb v. Powell, 433 F.3d 889, 901 (D.C. Cir. 2006). A plaintiffcan make out an unlawful retaliation claim by establishing, through the presentation ofevidence, that he or she "suffered (i) a materially 5adverse action (ii) because he or she had brought orthreatened to bring a discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008) (citing inter alia 42 U.S.C. § 2000e-3(a». Plaintiffs Booth, Brown, Buie, Burchette, Colbert, Johnson, and Small claim that they were retaliated against as a result oftheirparticipation in one or both ofthe grievance letters they sentto the DCRA. Unfortunately for them, their evidence does not constitute a sufficient showing, iftrue, to support a retaliation claim. Indeed, their evidence is defective with respect to causation because the retaliatory acts they allege either occurredprior to theirparticipation in the grievance letters, or so long after as to be too remote for legal viability. Finally, a number ofthe alleged retaliatory acts do not amount to "materially adverse action." How so? As to the first category, Booth, Brown, Buie, and Burchette all bring allegations of supposedly retaliatory events which in fact occurred before they even signed on to any grievance letter. Booth, for example, complains ofan "[a ]dmonition" she received on February 6,2003. (SAC**~** 38). Similarly, Brown complains that he was the subject ofa derogatory email and received a diminished performance evaluation in April and September, 2003, respectively. (Id.**~** 42-43.) Burchette complains ofan August 2003 reassignment. (Id.**~** 55.) None ofthese acts, however, could have been retaliatory because they pre-date these plaintiffs' participation in the October 23, 2003 letter. For the same reason, Buie cannot argue that she was retaliated against when denied a computer and other equipment that she claims was necessary for to do herjob, because 6these acts occurred two dayspriorto her August 20 letter. (Jd.**~~** 47-48, 51(g).) While the plaintiffs try to salvage these allegations by claiming that they all publicly opposed mismanagement and discrimination at the DCRApriorto signingtheir grievance letters, (SAC**~~** 36, 40, 46, 52), the record is simply devoid ofany such evidence. With respect to alleged retaliatory acts which are several months removed from the grievance letters, our Circuit has made it clearthat there is apoint in time where temporal proximity becomes too remote, without more, to permit an inference of causation. Thus, while adverse personnel action which occurs "shortly" afterprotected activity may give rise to an inference ofcausation, Holcomb v. Powell, 433 F3d 889, 903 (D.C. Cir. 2006), action which occurs more than three or four months afterprotected activity is not likely to qualify for such a causal inference. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam) (citing with approval circuit cases finding three and four months to be too temporally remote to establish causation). Accordingly, because the record is absent ofany other evidence which might suggest causation, the plaintiffs' claims that fail for remoteness are: (l) Booth's claims that she received a diminishedperformance evaluation on May 7, 2004, and a reprimand, proposed on March 5 and sustained on April 20, 2004, (SAC**~** 38); (2) Brown's claim that, on March 3, 2004, he was denied use ofa government vehicle that had been assigned to him, (id.**~** 44); (3) Buie's claims that she was similarly denied use ofa government vehicle on February 10,2004 and suspended for ten days in September 2004, (id.**~~** 51(h), G)); (4) Burchette's claim that she received a letter ofadmonition around 7March 5, 2004, (id. ,-r 56); (5) Colbert's claim that she was notified onApril 30, 2004 of her placement on leave restriction, (id. ,-r 74); and (6) Small's claim that he received a diminishedperformance evaluation on April 15, 2004, (id. ,-r 104). Finally, as for the remaining allegations in Count One, plaintiffs have not raised a genuine issue ofmaterial fact as to whether they actually suffered "materially adverse" retaliatory acts. Under Title VII, a "materially adverse action" is defined as one that would "dissuade[] a reasonable worker from making or supporting a charge of discrimination." BurlingtonN. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). The evidence on record demonstrates that no such action occurred in this case. Forinstance, Booth, Buie, and Johnson complain they suffered diminished performance evaluations in the months immediately following their grievance letters. (SAC,-r 38, 51(t), 82). Generally, these acts are not "adverse" under Title VII unless they precipitate tangible negative consequences. See Baloch, 550 F.3d at 1199. More specifically, in our Circuit, poorperformance evaluations are not "adverse" unless "attachedto financial harms." Jd. (citing Weber v. Batista, 494 F.3d 179, 185-86 (D.C. Cir. 2007)). Even assuming that plaintiffs had the uniformly stellarperformance evaluations they claim priortojoining in the grievance letters, and assuming arguendo that their evaluations suffered because oftheirprotected activity, plaintiffs have not proffered anyevidence to showthattheir diminished evaluations triggered tangible loss. To the contrary, the evidence on record suggestsjustthe opposite: in October 2006, all 8plaintiffs receivedpromotions and correspondingpayraises. (PI's Opp'n [# 59] Ex. 3, Brown Affidavit,-r 7.) Similarly, Buie and Colbert complain they were retaliated against when, shortly afterthey signed on to the grievance letters, they received letters ofadmonition, (SAC ,-r,-r 51(a), (d)) and a memorandum ofdirection, (id. ,-r 73). Such letters are not "adverse," however, ifthey contain no abusive language and instead offer "constructive criticism." See Baloch, 550 F.3d at 1199. Buie and Colbert did not introduce these letters into the record, nor have they directed the Courtto any other evidence concerningthe language used in those letters. Absent such evidence, there is no issue offact as to whetherthe letters were "abusive," and therefore, in turn, no material fact as to whetherthese actions

were "materially adverse.,,3 Lastly, Buie complains she was transferredto a less favorable work assignment several weeks after she sentherAugust 20 grievance letter. Transfers, however, are not "adverse" ifthey only precipitate "purely subjective injuries." Holcomb, 433 F.3d at 902 (quotingForkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002)). While a transfer can be "adverse" ifthe newposition requires "significantly different responsibilities," our Circuit has found that "dissatisfactionwith a reassignment, public humiliation, or loss of reputation

... are not adverse actions." Id. Here, Buie has not provided any evidence comparingthe responsibilities ofthe positions from and to which she was transferred.
3 Buie additionally claims that a letter she received from the City Administrator, which declined to investigate her allegations ofdiscrimination at the DCRA, was aretaliatory act. (SAC,-r 51(c).) This letter, like the letters ofreprimand and admonition, is absent from the record. Furthermore, it is less than clear how such a letter could constitute a "materially adverse action." 9All she has offered is her contention that hertransfer was to a "less favorable assignment in a different ward." (Buie Decl.**~** 7.) Accordingly, Buie has failed to demonstrate the existence ofan issue ofmaterial fact with respect to her allegedly retaliatory transfer. In sum, plaintiffs have failed to respond to defendants' Motion for Summary Judgment as to Count One by showing genuine issues for trial. Absent sufficient evidence to demonstrate causation or materially adverse action, their claims ofretaliation in violation ofTitle VII must fail. II. Count Two - DCWP A Retaliation Next, all twelve plaintiffs claim that the DCRAretaliated against them in violation ofthe District ofColumbia's Whistleblower Protection Act ("DCWPA"). The D.C. Code § 1-615.53 states: "A supervisor shall not threaten to take ortake a prohibitedpersonnel action or otherwise retaliate against an employee because ofthe employee'sprotected disclosure orbecause ofan employee's refusal to comply with an illegal order." Employees aggrieved by violations of§1-615.53 may bring private civil actions, provided they abide by the general notice requirements ofD.C. Code § 12-309-the statutoryprovision which requires six months notice prior to suing the District for unliquidated damages. D.C. Code § 1-615.54. First, as to Latson and Myers, they failed to comply with §12-309's notice requirement. In response to this suit, the District searched the locations where § 12-309 notices are maintained. It did not find either oftheseplaintiffs' notices, although it did find notices from all ofthe remainingplaintiffs. (Def.'s Mot. Ex. 1, Liley Affidavit**~** 2- 105.) Latson and Myersrespond by arguing they "were informed bytheir former counsel

..

.that he had providedtimely notice oftheirD.C. Whistleblower Protection Act claims," and that, as ofJanuary 24, 2008, they were "still awaiting copies ofthe notice from their counsel." (Pl.'s Opp'n at 1.) Overtwo years have expired since then and Latson and Myers still have notprovided any supplemental evidence to corroborate thatthey did in fact submitthe necessary notices. Therefore, their claims against the District underthe DCPWA are barred by § 12-309.4 

### See Districto/Columbia v. 

### Dunmore, 662 A.2d 1356, 1359 (D.C.1995) (noting that "compliance with 

### [§ 12-309] is 'mandatory as a prerequisite to filing suit against the District.'" (quoting

### Hardy v. 

### District

## 0/Columbia, 616 A.2d 338, 340 (D.C. 1992)). As for the remainingplaintiffs, the temporal remoteness analysis applied under Count One is equally applicable here. As such, claims premised on alleged retaliatory acts over four months 

### after plaintiffs' protected activity do notpermit an inference of causation. Again, absent additional evidence ofcausation, which is lacking here, these claims must fail. 

### See Johnson v. 

### Districto/Columbia, 935 A.2d 1113, 1120 (D.C. 2007) ("[W]e rejectthe four-month lapse oftime as proofofa causal connectionbetween the protected disclosures and the adverse actions."). This includes the following claims: (l) those ofBooth, Buie, Brown, Burchette, Colbert, and Small dismissed under Count One;

4 The Court rejects defendants' overly narrow argumentthat all ofplaintiffs' DCWPA claims must be dismissed because their § 12-309 notices did not "mention[] whistleblowing or aclaim pursuantto the Whistleblower Act." (Def.'s Mot. at 10.) As defendant concedes, "preciseness" is not required in anotice statement. See Tolson v. District a/Columbia, 860 A.2d 336,343 n.l (D.C. 2004). What is required is that "the Mayor

...be made aware ofthe actions which led to the charges," id., and plaintiffs' § 12-309 notices sufficed to do so. 11(2) Butler's claim concerning a March 8, 2004 notice ofreprimand, (SAC**~** 61); (3) Lovett's claims concerning a performance evaluation from May 7, 2004, and a work assignment givento him in June 2004, (id.**~** 93-94); and (4) Miller's claim concerning a performance evaluation from May 2004, (id.**~** 99). Additionally, certainplaintiffs' claims underthis Count must be dismissed because they are not premised on "[p]rohibitedpersonnel action[s]," as the DCWPA requires, even though such acts may have occurred shortly afterplaintiffs' protected activity. Whether conduct constitutes a "[p]rohibitedpersonnel action" requires an analysis similarto, but notprecisely coextensive with, the one employed under Count One to determine whether a Title VII "materially adverse action" occurred. The DCWPA defines "[p]rohibitedpersonnel action" to include: recommended, threatened, or actual termination, demotion, suspension, or reprimand; involuntary transfer, reassignment, or detail; referral for psychiatric or psychological counseling; failure to promote or hire or take other favorable personnel action; or retaliating in any other manner against an employee because that employee makes a protected disclosure or refuses to comply with an illegal order

.... D.C. Code § 1-615.52(a)(5). That diminished performance evaluations, like those complained ofby Booth, (SAC**~** 38), Buie, (id.**~** 51(f)), and Johnson, (id.**~** 82), are not explicitly included in theprovision is not necessarily fatal to these claims. Section 1- 615.52 makes clearthat its list of"[pJrohibited personnel action[s]" is not exhaustive. But, as the Section also makes clear, for an action that is not on the list to be prohibited, it must be causedby an employee's protected activity. Therefore, to survive summary 12judgment on their DCWPA claims involvingperformance evaluations, plaintiffs had to submit evidence demonstrating a causal link to theirprotected activity. They did not. Finally, for the remainder ofclaims under this Count, there is simply insufficient evidence to survive summaryjudgment. For instance, Buie complains ofletters of admonition from August 27 and December 2, a September 1transfer, and a December 15 ten-day notice ofofficial reprimand issued December 15,2003. (SAC**~~** 51(a), (b), (d), (e)). All ofthese acts appearto be "[p]rohibitedpersonnel action[s]," and they are alleged to have occurred within three to four months ofBuie'sprotected activity. Critically, however, Buie has offered virtually no evidence to corroborate or bolster her claims. In fact, aside from Buie's own self-serving affidavit, there is simply no evidence

on the record to suggest these events even occurred. Most conspicuously absent are the letters themselves. Thus, Buie cannot survive summaryjudgmentbecause there is not enough evidence for ajuryto conclude that aprohibited personnel action occurred, let alone that any such action was motivated, even in part, by herprotected activity. 

### See Johnson, 935 A.2d at 1120-21. As our Circuit has noted, "the central purpose ofthe summaryjudgment device

... is to weed out those cases insufficiently meritorious to warrantthe expense ofajurytrial." 

### Greene, 164 F.3d at 675. Considering the amount of time Buie has had to conduct discovery and her absolute failure to produce a shred of evidence in response to defendants' Motion for Summary Judgment, her case can only be considered "insufficiently meritorious" to proceed any further. 5

5 The same is true ofButler's unsupported claim ofaDecember 9reprimand, (SAC**~** 60), and 13III. Count Three - DCHRA Retaliation The law ofretaliation is the same under the D.C. Human Rights Act ("DCHRA")

as it is underTitle VII. 

### See Fowler v. 

### District a/Columbia, 404 F. Supp. 2d 206,209-10 (D.D.C.2005). Accordingly, the Count Three claims ofBooth, Brown, Buie, Burchette, Colbert, Johnson, and Small, must fail for the same reasons they did in Count One. Additionally, Latson and Myers cannot proceed on this Count because oftheir failure to provide the District with § 12-309 notices. 

### See Kennedy v. 

### District a/Columbia, 519 F. Supp. 2d 50, 57-59 (D.D.C. 2007). Finally, the claims ofButler, Lovett, and Miller must fail as well. Ofthese three plaintiffs, only one alleges an act within the requisite three-tofour month temporal causationwindow. This act, though-the December 9,2003 reprimand complained ofby Butler-is not "materially adverse" for the reasons set forth under Count One. Thus, no plaintiffcan survive summaryjudgment on this Count either. IV. Count Four- Title VII and ADEA Discrimination Count Fourcontains Buie, Colbert, and Johnson's discriminatory non-selection claims. These three plaintiffs claim they were discriminated against when they were not selected or invited to apply for higher-level positions that they believe they were qualified to hold. Each claims that age was motivating factor in his orhernon-selection. (SAC,-r 133-43.) Buie and Colbert also claim that genderplayed a role in their nonselection. (Jd.,-r 142.) Thus, the Court must resolve one central question: "Hasthe

Colbert's unsupported claim ofan October 31 "Memorandum ofDirection," (id.,-r 73). 14employeeproduced sufficient evidence for a reasonablejuryto find thatthe employer's asserted non-discriminatory reason was notthe actual reason andthatthe employer intentionally discriminated against the employee on the basis ofrace, color, religion, sex,

or national origin [or age]?" 

### Bradyv. 

### Office of Sergeant atArms, 520 F.3d 490, 493-94 (D.C. Cir. 2008) (Title VII); 

### see also Baloch v. 

### Kempthorne, 550 F.3d 1191,1196 (applying

### Brady framework to ADEA claim). Forthe following reasons, Buie, Colbert, and Johnson failed to produce such evidence. These three plaintiffs complain that they were not given the opportunity in September 2004 to apply for a vacantposition as Acting Branch Chieffor the Eastern Sector. (SAC,-r,-r 136, 137, 139.) They fail, however, to rebut defendant's legitimate explanation that none were qualified for the position. As the DCRA explains, the Branch Chiefposition had a requisite time in grade requirementthat none ofthese three plaintiffs met.6 (Def.'s Mot. at 18.) Additionally, Colbert and Johnson claim they applied for Lead Housing Inspectorpositions in September 2003 but found out a few months laterthat DCRAhired younger employees instead. (SAC,-r,-r 138, 140.) Defendant explains, though, that one ofthe candidates hired was entitled to a residency preference because he, unlike Colbert and Johnson, lived in the District. (Jd.) Moreover, Colbert and Johnson scored lower on their interviews for the position than the two employees ultimately selected. (Jd.) Buie, Colbert, and Johnson have offered no evidence to suggest that these

6 In fact, defendants claim that there never even was a vacant position for the Branch Chief position. According to the DCRA, there has been only one vacant Branch Chiefposition, in January, 2005, but that vacancy was not to scheduled to exceed 120 days and was therefore exempt from competitive hiring requirements. (Def.'s Reply [# 56] at 10.) 15legitimate reasons were notthe true cause oftheirnon-selection. Accordingly, they cannot survive summaryjudgmenton their discrimination claims. 7 CONCLUSION Thus, for all ofthe above reasons, summaryjudgment is GRANTED for the defendants. An Order consistent with this Memorandum Opinion was previously issued [# 77].

# ~ United States District Judge

7While defendants' Motion for Summary Judgment was being briefed, plaintiffs sought to incorporate their non-selection allegations into their retaliation claims. But, because DCRA legitimately explained their non-selection, these claims must fail whether cast in terms of discrimination or retaliation. 16