ERNEST HUNTER,

Plaintiff,

v. DI STRI CT OF COLUMBIA, Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-01491 ( AB J ) (AK)

REP ORT AND RECOMM ENDATION Plaintiff Ernest Hunter

(“H unter” or “Plaintiff” ), who is proc eeding pro se , bring s this action ag ainst Defe ndant District of Columbia (“the District” or “ Def endant” ). Plaintiff filed a Motion for Summary

J udg ment [51] (“Pl.’s Mot.”) a nd Def endant f iled a Cross-Motion for Summary J udg ment [66] (“D ef.’ s Mot.”). F or the re asons set for th below, the under signe d
rec ommends that Plainti ff’ s Motion be denied and D efe ndant’s Motion be g rante d-in-par t and denied- in-part. I. BACKG ROUND This case stems from Plaintiff’s employ ment as a Contra ct Compliance Of fice r with the District of Columbia Chil d and F amily Service s Ag ency

(“CF SA”). (Am. Comp. [ 20] at 4.) Acts of Plaintiff re levant to the ca se beg an on Jul y 1, 2008, when Plaintiff wr ote a letter to Ronnie Charles (“ Charles” ), who wa s the Senior Deputy Direc tor for A dminist ration of CF SA. (Pl.’s Mot. at 4; Pl .’s Mot., Ex . 4). Plaintiff’s letter c omplained of “ discrimination, crony ism and

1mismanag ement within CFSA, as we ll as issues involving a pe rfor mance evalua

tion of Plainti ff and the de nial of Plaintiff’s re quest for a n alternative work sche dule (“ AWS”). (Pl.’s Mot. at 4; Am. Compl. at ¶ 19; Def.’s Mot. at 2.) Plaintiff submit ted an a pplication for AWS on J une 13, 2008, and re ceive d notification on J uly 8, 2008, that the application was denied. ( Pl.’s Mot., Ex

. 10 at 4.) On J uly 28, 2008, in an email to “Hotline Inspector G ener al,” Plaintiff complaine d of abuses of authority within CFSA, including “ fra udulent fundingdocuments.” ( Pl.’s Mot. at 4; Pl.’s Mot., Ex . 5.) On August 6, 2008, Pl aintiff wr ote a se cond letter to Charles addr essingsimil ar issues a s his first letter to Charles. ( Pl.’s Mot. at 4; P l.’s Mot., Ex . 6.) A meetingwas he ld on August 7, 2008, with Plainti ff, Charles, Plaintiff’s immediate super visor Catherine H igg ins (“Hig g ins”), and the Super

visory Manag ement Servic es L iaison L aTonya B ryant (“ Br y ant”) , to discuss the letters. (Pl.’s Mot. at 4-5; De f.’s Mot. at Ex. H.) The mee ting be came contentious, and Char les subsequently

made a complaint about Plaintiff’s behavior to the Human Resourc es De partment. (Pl.’s Mot. at 4; Def.’s Mot. at 4.) Charles de scribed Plaintiff a s exhi biting er ratic a nd threateningbehavior , while B ryant desc ribed Plaintiff’s be havior at the meetingas ag g ressive and bellig ere nt. (Def

.’s Mot. at 4, Ex. H at 1-2.) After the meeting , Plaintiff sent an ema il to R oque Ge rald, the D irec tor of CFSA, a lleg ing that Charles a

nd others in manag ement at CF SA were abusingtheir authority . (Pl.’s Mot. at 4; Pl.’s Mot., Ex . 8.) Plaintiff lists various ex amples of a buses both ag ainst Plainti ff a nd in ge nera l. ( Id. ) Also following the meeting , Charles dire cted Huma n Resource s to prepar e a le tter that
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y ant sig ned plac ing Plaintiff on pa id Administ rative L eave pendingcompletion of a “ Fitness for Duty” examination, to be conducte d at Plaintiff’s expense. (De f.’s Mot. at 4-5; Hr ’g , J uly 30, 2012.) Plaintiff was plac ed on Administrative L eave on August 8, 2012. (Def .’s Mot. at 5.) Plaintiff completed the F itness for Duty examination on August 18, 2008 and he was de clar ed fit and he r eturne d to work. (Pl.’s Mot. at 8-9.) Plaintiff filed an off

icial complaint with the D.C. Off ice of Human Rig hts in S eptember 2008 ( seePl.’s Mot., Ex . 9), and a complaint with the Equal Employ ment Offic e (“ EEO”) in November

2008 ( see Pl.’s Mot., Ex . 22), both alleg ing g ender discrimination and re taliation. (Pl.’s Mot. at 9.) Plaintiff’s complaint befor e the D.C. Of fice of Human Rig hts was denied on May 26, 2009 (Pl.’s Mot., Ex . 10). Plaintiff continued in his employ ment, and on January

5, 2010, he re ceive d an eva luation from Jacque McD onald, the Contrac ts Manag er, a nd Tara Sigamoni, the Chief Contra cting Offic er. ( Pl.’s Mot. at 17, Ex . 29.) The e valuation rated Plaintiff no lower tha n a “V alued Perfor mer” in ever

y cate g ory . (Pl.’s Mot. at Ex . 29.) The e valuation did, howeve r, include a comment that some interna l customers believe d Plaintiff’s demea nor did not ref

lect g ood customer se rvice . (

Id. at 2.) Plaintiff challeng ed the c omments in a J anuar y 21, 2010, letter to De x ter Starke s, the L abor a nd Relations Manag er f

or CFSA. (Pl.’s Mot. at 18.) On Ma rch 3, 2010, Plaintiff sent a letter to Ge rald, discussingthe comments in the eva luation and alleg ing othe r issues with Sigamoni. (

Id. ; Pl.’s Mot ., Ex . 31.) A mee ting wa s held on Marc h 9, 2010, that included McDona ld, Starkes, and Sig amoni, but not Gera ld. (Pl.’s Mot. at 18.) At the meeting , McDona ld ag ree d to remove the comments. ( Id. )
3On April 28, 2010, Ge rald a nd others met with Plaintiff (Pl.’s Mot. at 19.) On May 3, 2010, Plaintiff wrote a

letter to Ray

Davidson, the Chief A dminist rative O ffice r at CFSA, alleg ing a differ ence betwee n the method used to ca lculate his tenure and the method use d for
newe r employees hire d by Sigamoni. (Pl.’s Mot., Ex . 36.) On May 6, 2010, Plaintiff was g iven a Reduc tion in Force notice. (Pl.’s Mot., Ex . 37.) Plaintiff was plac ed on immediate Administrative L eave . (Pl.’s Mot. at 21.) He w as terminate d on J une 11, 2010. On Novembe r 4, 2010, Plaintiff Amende d his Compl aint (“Thir d Amended Complaint”) in this case to add the r eduction in forc e notice a nd subsequent ter

mination. (Am. Compl. [ 20]). The Third A mended Complaint included cla ims for: (1) g ender discrimination under 42 U.S.C. § 1983; (2) re taliation under 42 U.S.C. § 1981; (3) hostile work e nvironment; (4) violation of the D.C. Whi stleblower Protec tion Act; (5) violation of the D.C. Human Rig hts Act; and (6) violation of Plainti ff’ s Fifth Amendme nt due proc ess rig hts. Def endant f iled a Motion to Dismis s the Third Amende d Complaint, and J udg e Amy Be rman Jackson ruled on the Motion to Dismiss on J uly 15, 2011. (Orde r grantingMotion to Dismiss certain cla ims from the third amende d complaint [41] .) Judge Jackson dismissed the claims for hostile wor

k environment a

nd for violations of due pr ocess r ights. ( Id. ) F or the discrimination and re taliation claims, J udg e Jackson treated the complaint as r aisingtwo cause s of ac tion, one for a cts that took place in 2008 (“2008 a cts”) a nd one for

acts that took plac e in 2010 (“2010 a cts”). (

Id. at 14.) Judge Jackson found that Plainti ff ha d not exhausted his administrative re medies as to the 2010 a cts and grante d the Motion to Dismi ss as to Plainti ff’ s discrimination and re taliation claims based on the 2010 a cts. ( Id. )
4II. ST ANDAR D OF REVIEW Under Fe dera l Rules of Civil Procedur e 56, summary judgme nt is appropriate wher e the documents in the re cord show no g enuine dispute a s to any materia l fac t and the movant is entitled to judgment a s a matter of law. F ed. R. Civ. P. 56(a), (c ). The movingparty is responsible for

informingthe cour

t of the basis for

its mot ion and identifying por tions of the
rec ord that demonstrate the abse nce of any g enuine dispute of a

materia l fac t. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). To be materia l, a fa ct must affe ct the outcome of the ca se and relate to the substantive law g overning the ca se. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 248, 106 S.Ct . 2505 (1986). In rulingon a motion for summary judgme nt, the court must drawall justifiable infere nces in the non- moving pa rty ' s favor and ac cept the nonmovingparty ' s evidenc e as true
. Anderson , 477 U.S. at 252. The non-movingparty , howeve r, must establish more than “ the mere exis tence of a sc intill a of e vidence ” in support of its position. Id. The non-movingparty must establish “suff

icient evidenc e” to f

avor the jury

returninga ver dict for the non- moving pa rty
. Id. (citation omitted). III. DISCUSS ION Plaintiff presents no e vidence that, since Judge Jackson’s r uling on the Motion to Dismiss, he has further

exhausted his administ rative r emedies r eg ardingthe alleg ed discrimination and re taliation based on the 2010 a cts. Acc ording ly , the under signe d rec ommends there is no basis for Judge Jackson to chang e her rulingon Def

endant’ s Motion to Dis miss. The
rema ining c laims are a s follows: (1) g ender discrimination based on the 2008 a cts; (2) re taliation based on the 2008 acts; (3) violation of the D.C. Whis tleblower Protec tion Act based on the 2008
5and 2010 ac ts; and (4) violation of the D.C. Huma n Rights Act ba sed on the 2008 a nd 2010 acts. A. G ender Discr im ination To establish a prima f

acie case of g ender

discrimination, a plaintiff must show (1) a n adver se employ

ment action ag ainst the plaintiff; and (2) that the adve rse e mploy ment action wa s taken be cause of the plaintiff’ s g ender

. Baloch v. Kem pthorne , 550 F.3d 1191, 1196 ( D.C. Cir. 2009). Plaintiff alleg es that he e x perie nced g ender -base d discrimination on two separate
occa sions in 2008. The first event wa s the denial of his initial AWS reque st (“AWS denial”). The sec ond event include d both the ten-da y period of A dminist rative L eave and ac company ing Fitness for

Duty examination (“L eave and Examination”), which tog ether will be considere d part of the same event. The undersig ned finds no g ender -base d discrimination in either eve nt.

1. Adverse Em ployme nt Action Not ever y action ag ainst an employee qua lifies as an a dverse employ ment action under Title VI I
. Forkkio v . Powell , 306 F.3d 1127, 1130 ( D.C. Cir. 2002). “An e mploy ee suf fer s an adver se employ

ment action if he experience s materially adver se conse quence s aff ectingthe terms, conditions, or privileg es of e mploy ment or future employ

ment opportunities such that a
rea sonable trier

of fa ct could find objec tively tang ible harm.” Id. ; see Brown v. Brody , 199 F.3d 446, 457 (D.C. Cir. 1991). Examples include “hiring , firing , failure to promote, rea ssignment with significa

ntly differ ent re sponsibili ties, or a de cision causingsignific ant cha ng e in bene fits.” Burlington Indus. Inc. v. Ellerth , 524 U.S. 742, 761, 118 S. C t. 2257 (1998). Dissatisfac tion with
a re assig nment, public humiliation, l oss of reputation or other “pur ely speculative injuries” ar e not “adve rse e mploy

ment actions.” Forkkio , 306 F.3d at 1131. Plaintiff has failed to show that the AWS denial was an a dverse employ ment action.
6When the AWS denied occur red, he did not rece ive a r eduction in pay or bene fits and did not see a cha ng e in his job description, status or re sponsibili ties. The denia l of Plaintiff’s reque st to work at home as opposed to the of fice cannot be char acte rized as an a dverse employ ment action. I t might be a

convenie nce to Plaintiff if grante d, but by any stretch, it ca

nnot be construe d as an adver se employ

ment action. See B rown v. George town Univ. Hosp. Medstar He alth , 828 F. Supp. 2d 1, (D.D.C. 2011) (“ [a] schedulingdispute, without evidence of a material c hang e in responsibilities or employ ment status, is not an adverse employ ment action.”) Plaintiff provided no evidenc e of a

ny harm, but if ther e wa s harm to the Plaintiff, it would have be en minimal beca use Plaintiff rea

pplied for AWS approxim ately three months after it wa s denied a nd his second a pplication was grante d. ( See Pl.’s Mot., Ex . 10 at 4.) The unde rsig ned re commends that Plaintiff’s discrimination claim based on the denial of A WS be denie d. Plaintiff has also fa iled to show that the L eave and Examination constitut ed an a dverse employ ment action. Plaintiff offe rs sprea dsheets listing disciplined employees a nd the discipline they rec eived. ( Pl.’s Mot., Ex . 56-60.) He argues that “ma ny employees ha d conduct a nd perf ormanc e proble ms within t he ag ency” and “ wer e not subject [sic] t o such extreme orde rs.” (Pl,’s Mot. at 37.) The spre adshee ts show, as Plaintiff sugg ests, that Def endants ha d a ra

ng e of possible punishments they could have imposed other than Administrative L eave . ( See id. ) They do not establish, however , that Administrative L eave and a F itness for Duty Ex amination is a disciplinary

action. None of the spre adshee ts the Plainti ff submitted rec ord either Administrative L eave or a F itness for Duty examination as puniti ve conse quence s. (Pl.’s Mot., Ex . 56-60.) There fore , the place ment on Administrative L eave and the F itness for Duty examination was not an adve rse e mploy

ment action or punitive c onsequenc es, but wer e instead a dminist rative a ctions.
72. Absence of Ge nder-based Discrim ination

Even if the A WS denial or the L eave and Examination can be c hara cter ized as adver se employ ment actions, Plaintiff’s cla ims fail beca use he did not experienc e discrimination on the basis of g ender . Plaintiff arg ues that the AWS denial occ urre d beca use of his g ender , prese nting evidenc e that a f

emale e mploy ee in the sa me offic e as Plaintiff wa s participatingin AWS at the time his request wa s denied. (Pl.’s Reply at 9; Pl.’s Mot., Ex . 2 at 3.) How ever , when Plaintiff reque sted AWS t hree months later, he wa s g rante d on the same da y he applied. ( Pl.’s Mot., Ex .10 at 4.; Def .’s Mot., Ex . N). Give n that AWS was subsequently g rante d at Plaintiff’s sec ond application, he did not experienc e g ender discrimination. Additionally , Plaintiff argues that he w as discriminated a g ainst on the basis of g ender when he rec eived the pla ceme nt of L eave and Examination. (Third Am. Compl. at ¶ 42; Pl .’s Reply at 9.) Plaintiff wa s place d on Administrative L eave in response to the August 7, 2008, meeting(Pl.’s Mot. at 6; Def’s Mot. at 4.) , without any ref ere nce to Plaintiff’s g ender . Plaintiff was provide d two letters informinghim of his placement on Administrative L eave . (Pl.’s Mot., Ex s. 12 and 13.) B oth letters contain the sa me languag e, citingPlaintiff’s “er ratic be havior” at the August 7, 2008, meetingand his “re fusal of supe rvision and [] contentious and thre atening demea nor towar ds other employees” as the ba sis for Administrative L eave . ( Id. ) The le tters provide no support for

Plaintiff’s claim of g ender discrimination. Whil e Plaintiff offe red the previously mentioned sprea dsheets as e vidence of disciplinary conseque nces, the se also do not sug g est g ender -base d discrimination. The name s of the employ ees a

re r edac ted, and thoug h the sprea dsheets have a fe w g ender -spec ific pronouns, it is not possible to identify

the g ender

of eve ry employ ee. ( Pl.’s Mot., Ex . 56-60.) The sprea dsheets
8do not establish, however , any pattern of

women re ceivingdiffer ent treatment from men or that Plaintiff was trea

ted diffe rently

beca use of his status as a ma le. ( See id. ) Finally , J acque McDona ld states in an af fidavit prese nted in the re cord that Plainti ff “ was treated diffe rent than othe r employees,” but McDonald off ers no e vidence to support the claim that the diffe rent tre atment was be cause of Plaintiff’s g ender . (Pl.’s Mot., Ex . 2 at 3-4.) I n sum, Plaintiff has failed to pr ovide any fac tual support for his alleg ation that sex di scrimination play ed a role in the place ment on L eave and Examination. The unde rsig ned re commends that De fenda nt’s Cross-Motion for Summary J udg ment be g rante d as to Plaintiff’s g ender discrimination claim. B. Retaliation un der Title VII Plaintiff argues that De fenda nt retaliate d ag ainst him in vi olation of Title VI Iafte r he complained of

misconduct within the CFSA. (Am. Compl. at ¶¶ 48-49; Pl.’s Mot., at 37-38.) Simi lar to his g ender -base d discrimination claims, he cites the A WS denial and the L eave and Ex amination as the re taliatory events. In order

for a reta liation claim to prevail on a motion for summary judgme nt, it mus t be established that the pla intiff: (1) eng ag ed in protec ted ac tivity ; (2) was subjec ted to an adve rse e mploy ment action; and ( 3) ca

n show a c ausal link betwe en the protec ted ac tivity

and the a dverse action. Hamilton v. Geithner , 666 F.3d 1344, 1357 ( D.C. Cir. 2012) (c itation omit ted). The Supreme Court has noted that the re quirements for a Title VI I

reta liation claim are simil ar to, but not the same a s, the requir ements for a discrimination claim. Burlington N . & Santa Fe Ry. Co.v . W

hite , 548 U.S. 53, 67, 126 S. C t. 2405, 2414 (2006). F or re taliation, “a plaintiff must show that a re asonable employ ee w ould have f ound the cha lleng ed ac tion
9materia lly adver se, which in this context means it well might have dissuaded a r easona ble worke r from makingor supportinga cha rg e of discr imination.” Id. at 68. (quotations omitted). The Supreme Court uses “ materia lly adver se” to e mphasize the differ ence betwee n signific ant and trivial harms, but also notes that the c ontextof the a lleg ed re taliation matters. Id. at 69. The Court uses the example of an e mploy er c hang ing a n employ ee’ s schedule, which would not be materia l to mostworke rs, but may make a larg e diffe renc e to a mother with school-ag e childre n. Id. Assuming a

rguendo that Plaintiff’s complaints to his employ er w ere protec ted ac tiviti es, Plaintiff’s reta liation claim stil l fails beca use he w as not subjected to a n adver se employ

ment action. Additionally , even if the AWS denial and L eave and Examination are c hara cter ized as adver se, Plaintiff has not demonstrate d a suff icient ca usal link betwee n his complaints and the subsequent eve nts.

1. Adverse Em ployme nt Action Plaintiff has failed to de monstrate why either the AWS denial or the L eave and Ex amination qualify

as adve rse e mploy

ment events unde r Title VI I . The unde rsig ned has previously

rec ommended that the AWS denial did not rise to the level of an adve rse e mploy

ment action for Plaintiff’s discrimination claim. Simi larly , the AWS denial is not an adverse employ ment action for

purposes of Plaintiff’ s retaliation cla im. A rea sonable e mploy ee w ould not have be en dissuaded f rom makingor supportinga cha rg e of discr imination sol ely beca use his superiors did not allow him to work an a lternative sc hedule. Plaintiff’s initial reque st for AWS was de nied, but his second re quest was grante d. His claim that the initial denial was r etaliation and discrimination is specious. Thus, the unde rsig ned also re commends that Plaintiff’s cla im for
10reta liation based on the initial denial of AWS be denied.

Plaintiff also alleg es that he w as subjecte d to retaliation whe n he wa s place d on Administrative L eave and re ceive d a F itness for Duty examination. I t might be a rgued that place ment on Administrative L eave constitutes an adve rse e mploy ment action if a

n employ ee’ s duties were signific antly

chang ed upon re turn from a dminist rative le ave or if the leave wa s unpaid. In Burlington , the Supreme Court uphe ld the jury ’s ver dict that the re assig nment of the plaintiff’s duties and the suspension of the plaintiff f or 37 day s without pay

wer e mater ially adver se and qua lified as adve rse e mploy ment actions. 548 U.S. at 53. In contra st, the plaintiff

1 in Brown v. George town Univ. Hosp. Medstar He alth , a hea lth care worke r, wa s suspended with pay for 11 da y s after she alleg edly

beca me ar gumentative with a patient’s relatives and “r efuse d to ge t another me mber of sta ff to re place her at the patient’s re quest.” 828 F . Supp. 2d 1, 9 (D.D.C. 2011). H er suspe nsion did not constitute an a dverse employ ment action bec ause she did not suffer a cha ng e in employ

ment status and continued to re ceive full pay and bene fits during and af ter he r suspension. Id. See also Moran v . U.S. Capitol Poli ce B d. , 820 F. Supp. 2d 48, 58 (D.D.C. 2011) ( “[p] aid suspension alone is not enough to rise to the level of materia lly

adver se unless it causes some f

urther ha rm or har dship.”) Plaintiff in this case was plac ed on paid Administrative L eave for ten da y s. (Pl.’s Mot. at 8-10, De f.’s Mot. at 5.) H e complete d the re quired F itness for Duty examination withi n the allotted ten-da

y period. (D ef.’ s Statement of Mater ial Fa cts not in Dispute at ¶ 20.) At the motions hearingheld on J uly 30, 2012, Plaintiff stated that his personal doc tor conduc ted the The Supreme Court also noted that the plaintiff e ventually rec eived ba ck pay

for the time 1 she wa s suspended, but she wa s still harme d by the phy sical and e motional hardship of losing he r income for

the per iod of her suspe nsion. 11Fitness for Duty examination withi n one hour, a nd that Plaintiff was cha

rg ed for the co- pay

for the examination. (Hr’g , J uly 30, 2012.) Given that Plainti ff wa s paid duringhis Administ rative L eave , beingchar g ed for

the co- pay

does not cre ate a

n employ ment action that is materia lly adver se. Plaintiff returne d to work af ter the A dminist rative L eave , and he pr esents no evide nce that his duties were chang ed upon his retur n. Nor doe s he alleg e that he suf fer ed any harm a fter returningto work bec ause of his Administ rative L eave . Acc ording ly , the under signe d
rec ommends relying on the case law in this Circuit, that paid Administ rative L eave and a F itness for Duty examination does not constitut e an a dverse employ ment action. 2. Absence of Causal L ink Even if the A WS denial and L eave and Examination can be c onstrued as a dverse employ ment events unde r Title VI I , Plaintiff has insufficiently established a link betwe en those actions and his prote cted a ctivity of complainingto his supervisors. To succe ed in a Title VI I claim, the Plaintiff must show a ca usal link betwee n the protec ted ac tivity and the a dverse action. Hamilton v. Geithner , 666 F.3d 1344, 1357 ( D.C. Cir. 2012) (citation omitted). Plaintiff failed to illustrate a c ausal c onnection betwe en his complaints and the AWS denial. Ac cordingto the chronology of eve nts provided by

Plaintiff, the discriminatory AWS policy and his denial wa s one of his g rieva nces in his J uly

1, 2008, letter. (Am. Compl . at ¶ 13.) Given that the pr otected e vent of c omplaining to Plaintiff’s employer oc curr ed subseque nt to the AWS denial, the AWS denial ca nnot be ca

usally related as a

reta liatory

event. Additionally , when Plaintiff re applied for AWS approx imately

three months after it wa s denied a nd following the protec ted eve nts of complaints and communications to hi s employ er, his sec ond application
12was grante d. ( See Pl.’s Mot., Ex . 10 at 4.) The ref ore, Plaintiff ha s not proven a c ausal link betwee n the protec ted eve nt of complainingto his supervisor and the A WS denial. L ikewise, Plaintiff fa iled to demonstrate a causa l connec tion between his c omplaints and his L eave and Examination. W hile the L eave and Examination was close in time to the August 7, 2008, meeting , Plaintiff’s place ment on Administrative L eave and F itness for Duty examination were pr ecipitated by his behavior a

nd demea nor rather than the protec ted ac tion of complainingto his supervisor. Plaintiff offe red two le tters that informed him of his plac ement on Administrative L eave . (Pl.’s Mot., Ex s. 12 and 13.) B oth letters contain the sa me languag e citing Plaintiff’ s “er

ratic be havior” at the August 7, 2008, meetingand his “re fusal of supe rvision and [] contentious and thre ateningdemea nor towar ds other employees” as the ba sis for administrative leave . (

Id. ) There fore , superc edingcause s exi st for the super visors’ ac tions, damag ing a

ny potential causa l link between Plaintiff’s c omplaining a nd the L eave and Ex amination. Even if the A WS denial or the L eave and Examination were to be construed a s adver se employ

ment actions, the unde rsig ned re commends that the Plaintiff has f ailed to demonstrate a

causa l link between them a nd the protec ted ac tivity

. C. State Law Claims As noted above , the under signe d rec ommends that Plainti ff’ s fede ral Title VI Iclaims be dismiss ed, lea

ving only the state lawclaims. A fe dera l court has discr etion to dismi ss the case , exercise jurisdiction over the re maining sta

te-lawclaims, or dec line to exercise jurisdiction over the state-la

w claims. See also 28 U.S.C. § 1367(c)(3) . The Supreme Court has provided guidance to the lower c ourts on how to exercise their discretion whe n confr onted with claims of fede ral a nd pendant jurisdiction and de cidingwhether or not to dismis s the state law c laims. In 13consideringand bala ncingfac tors, the Court held that “[i] t has consistently been r ecognized that pendant jurisdiction is a doctrine of discre tion, not of plaintiff’s right. I ts justi fication lies in considerations of judicial economy , convenie nce a nd fairne ss to lit iga

nts.” United Mineworke rs v. Gibbs , 383 U.S. 715, 725 (1966). The Court found that “if the f eder al claims ar e dismissed befor e trial, e ven thoug h not insubstantial in a jurisdictional sense, the state c laims should be dismiss ed as w ell.” Id. The Supreme Court also noted that if state issues ar e substantial, the claims ca n be dismissed without prejudice. Id. See also She koyan v . Sibley Inte rnational , 409 F.3d 414, 424 ( D.C. Cir. 2005) (quoting Carnegie-Me llon Univ. v. Cohill , 484 U.S. 343, 350 n.7, 108 S.Ct . 614 (1988). Where the claims pre sent novel or c omplex issues of State law, discr etion further weig hs in favor of

decliningto exercise jurisdiction. 28 U.S.C. § 1367(c)(1) ; Cannon v. District of Columbia , No. 12-c v-133, 2012 WL2673097 at *12 (D.D .C. J uly 6, 2012). The D.C. Whistl eblower

Protection Act, D.C. Code § 1-615.53, pr esents an unde veloped body of law that is more suitable for a djudication in Superior Court. Cannon , 2012 WL2673097 at *12 (re mandingD.C. Whi stleblower Protec tion Act g iven the undeve loped state of the law); Lowe v. District of Col umbia , 669 F. Supp. 2d 18, 32 (D.D .C. 2009) (same) ; Terrell v. District of Columbia , 703 F. Supp. 2d 17, 23 (D.D .C. 2009) (“[r]etaining jur isdiction over plaintiffs’ state

law cla ims would require the Court to make substantive conc lusions of law with reg ard to the District of Columbia Whi stleblower Protec tion Act.”) J udicial discre tion also weig hs in favor of decliningto exercise jurisdiction over Plaintiff’s claims under the D.C. Human Rights Ac t. See A nderson v. Holde r , 647 F.3d 1165, 1174 (D.C. Cir. 2011) (“ with no fede ral c laims remainingin the case , the district court a lso proper ly declined to e x erc ise supplemental jurisdiction over Anderson’ s claim under the D.C.
14Human Rig hts Act.”); Mitchell v. Yat es , 402 F. Supp. 2d 222, 229 n.4 (D.D .C. 2005) (re manding

D.C. Human Rights Ac t claims for re solution i n Superior Court af ter dismissing fe dera l claims under the Americ ans with Disabilities Act). Ac cording ly , the under signe d rec ommends that the Court decline to exerc ise jurisdiction over Plaintiff’s state la w claims.

IV. RECOMMEND ATION The unde rsig ned re commends that Plaintiff’s Motion for Summary J udg ment be denie d. The unde rsig ned re commends that De fenda nt’s Motion for Summary J udg ment be grante d as to Plaintiff’s claims for g ender discrimination and re taliation under Title VI I . The unde rsig ned also
rec ommends that the Court decline to e x erc ise jurisdiction over Plaintiff’s re maining sta te law claims under the D.C. Human Rights Ac t and the D.C. Whistl eblower Protection Act c laims and that the ca se be dismissed without prejudice . Plaintiff will have thirty day s from the date of dismiss al to re- file his state law c laims in DC S uperior Court.

V. REVIEW BY THE DISTRICT COURT The pa rties ar e her eby

advised that unde r the provisions of L ocal Rule 72.3(b) of the United States District Court for the D istrict of Columbia, any party who objects to the Repor t and Recommendation mustfile a written objection there to with the Clerk of this Court within 14 day s of the pa rty ’s re ceipt of this Report and Re commendation. The written objec tions must specific ally

identify the portion of the r eport a nd/or rec ommendation to which objection is made, and the ba sis for such objec tions. The parties a re f urther a dvised that failure to file timely objections to the finding s and re commendations set for th in this repor

t may waive the ir rig ht of
15appea l from an or der of the District Court that adopts such finding s and re commendation. See Thomas v. Arn , 474 U.S. 140 (1985).

DATE: 12 September , 2012 /s/ ALAN KAY UNI TED STATES MAGI STRATE J UDGE

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