Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID DEJESUS,
Plaintiff,
v. Civil Aсtion No. 13-1101 (JDB) WP COMPANY LLC d/b/a THE
WASHINGTON POST,
Defendant. MEMORANDUM OPINION
David DeJesus was a successful ad seller at the Washington Post. But according to his supervisor, he was also insubordinate. And when he delivered a study to the wrong client, she set his termination in motion. Believing that his supervisor had discriminated against him on the basis of his race and age, DeJesus sued. But because he has failed to demonstrate a triable issue on the reasons for his termination, the Court will grant the Post’s motion for summary judgment.
BACKGROUND
DeJesus, a sixty-three-year-old African-American man, has worked in advertising sales at the Post since 1993. Def.’s Ex. 10 [ECF No. 36-11] at 9, 11. [1] During his tenure at the Post, DeJesus was responsible for accounts worth millions, and won more than forty awards. See Pl.’s Ex. 6 [ECF No. 39-2] at 189, 191. Despite his success, however, at least one manager has suggested that he had communication issues. See Def.’s Ex. 20 [ECF No. 36-20] at 3.
Then, in 2008, he began reporting to Noelle Wainwright. See Def.’s Ex. 4 [ECF No. 36- 5] at 3. Their professionаl relationship was particularly difficult: Wainwright complained of *2 DeJesus’s “overall lack of sales professionalism, lack of focus, lack of proper sales call preparation, and lapse in communication skills, both internally and with clients.” Def.’s Ex. 7 [ECF No. 36-8] at 2. Wainwright criticized DeJesus for a number of incidents over the years, and certain aspects of his performance reviews suffered. See, e.g., Def.’s Ex. 3 [ECF No. 36-4] at 6 (rating DeJesus in his 2008 performance appraisal as “below standards” in time management and taking the initiative); Def.’s Ex. 23 [ECF No. 36-23] at 12 (noting in DeJesus’s 2010 performance appraisal that “[t]here are cycles where Dave is ‘off’, falling behind in his follow up with clients and on [o]pportunities,” and that “during these cycles, he also tends to make junior mistakes”).
The relationship between DeJesus and Wainwright reached its breaking point in 2011. Allstate Insurance Cоmpany’s advertising agency, Starcom, requested an advertising impact report (known as a “RAM study”) regarding a recent ad it had placed in the Post. Because Wainwright was out of the office, DeJesus did not consult with her before ordering the RAM study. See Def.’s Ex. 10 at 26–27. When she learned that he had done so, Wainwright told DeJesus that she “should have been aware of this before [they] decided to move forward,” and asked him to “please cоmmunicate with [her] on th[o]se types of requests.” Def.’s Ex. 6 [ECF No. 36-7] at 3. Wainwright later testified that she had an unwritten policy requiring that all RAM studies be approved by a manager. See Def.’s Ex. 4 at 13. But her explanation is murky. Compare id. at 14 (“It [the policy] was stated. Everybody knew it.”), with id. (“I don’t know that I ever said it. I don’t know that I ever had to.”). And, in any event, she ended the e-mail chain by saying “No worries.” Def.’s Ex. 6 at 2.
But the saga of the RAM study did not end there. The two had a meeting in which Wainwright еxplained that “the information [from the study] should be given to the client and not to the agency.” Def.’s Ex. 10 at 30. According to Wainwright, she specifically mentioned Karen *3 Hornberger, Allstate’s marketing manager. See Def.’s Ex. 4 at 23–24. But DeJesus says that Hornberger’s name never came up. See Def.’s Ex. 10 at 31. Later, Wainwright reiterated to DeJesus by e-mail her “expect[ation] that [he] only deliver the results [of the RAM study] in person.” Def.’s Ex. 14 [ECF No. 36-15] at 3. She then asked him to сonfirm that he had set a meeting with “the client” for the next week. Id. DeJesus agreed, id., understanding “the client” to mean Allstate, see Def.’s Ex. 10 at 30. According to Wainwright, however, “client” meant something more specific, see Def.’s Ex. 4 at 26—it meant Hornberger, whom DeJesus had met only once before, see Def.’s Ex. 10 at 58–59. Later in the e-mail chain, Wainwright pointed out again that this meeting should be a priority. Def.’s Ex. 14 at 3. And DeJesus responded by stating that he was mеrely waiting for confirmation of a time. Id. at 2.
A few days later, Wainwright followed up, again reminding DeJesus to deliver the RAM study results in person. See Def.’s Ex. 15 [ECF No. 36-16] at 3. And DeJesus again expressed his understanding of that directive. Id. at 2. He noted that the “client meeting” was confirmed for June 8. Id. But that meeting was with Starcom, not Allstate. See Def.’s Ex. 30 [ECF No. 36-30] at 2. And DeJesus neglected to mention a meeting with Allstate’s Vice President for Federal Legislative and Regulatory Affairs, Stacy Sharpe, scheduled to precede it. He gave the RAM study to Sharpe at that earlier meeting, and met with a positive reaction from her. See Def.’s Ex. 10 at 34.
But when Wainwright found out that DeJesus had presented the RAM study to Sharpe, rather than Hornberger, her reaction was “explosive.” Def.’s Ex. 10 at 36. Wainwright was particularly “angry” that DeJesus had delivered the results to Sharpe because Sharpe lacked budget approval authority, id., even if she “influence[d]” the budget, id. at 35. In an attempt to “defuse *4 the . . . yelling,” DeJesus falsely told Wainwright that he had presented the information to Hornberger as well. Id. at 36. DeJesus retracted that statement later the same day. Id.
An angry Wainwright brought her concerns to her supervisor, Ethan Selzer, and in late June, Wainwright gave DeJesus a proposed separation agreement. A month later, the Post formally terminated DeJesus’s emplоyment. The termination memorandum stated the cause as “willful neglect of duty and insubordination,” referencing the aftermath of the RAM study. Pl.’s Ex. 51A [ECF No. 39-4] at 140. The memo explained that DeJesus “fail[ed] to follow [Wainwright’s] specific instructions regarding the delivery of this already unauthorized RAM study,” as he “did not meet with the client,” but “only met with their agency and with a local client contact with no advertising decision-making ability or budgetary oversight.” Id.
That same day, the Washington-Baltimore Newspaper Guild filed a grievance challenging DeJesus’s termination under its collective bargaining agreement with the Post. See Def.’s Ex. 26 [ECF No. 36-26] at 2. Under the terms of that agreement, the grievance was submitted to an arbitrator, who found that the Post had not satisfied its burden of “demonstrat[ing] just and sufficient cause for discharge.” Def.’s Ex. 27 [ECF No. 36-27] at 12. Because the Post had not used its progressive discipline procedures, it had to prove “grоss misconduct or willful neglect of duty.” Id. at 13. Unable to satisfy this “heavy burden,” id., the Post was ordered to reinstate DeJesus “to his former or substantially similar position . . . and to make him whole for his losses,” id. at 19.
The Post reinstated DeJesus the following month. But he remained unsatisfied. After exhausting his administrative remedies, DeJesus brought suit alleging race discrimination under Title VII and 42 U.S.C. § 1981, as well as age discrimination under the Age Discrimination in *5 Employment Act (“ADEA”). Discovery is now completе, and the Post has moved for summary judgment. See Def.’s Mot. [ECF No. 36].
LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To
demonstrate a “genuine dispute,” a non-moving party must put forth more than the “mere existence
of a scintilla of evidence” to support its position. Anderson v. Liberty Lobby, Inc.,
ANALYSIS
DeJesus’s race and аge discrimination claims are properly analyzed under the familiar
McDonnell Douglas burden-shifting framework. See Ford v. Mabus,
But, as the D.C. Circuit has instructed, “where an employee has suffered an adverse
employment action and an employer has asserted a legitimate, non-discriminatory reason for the
decision, the district court need not—and should not—decide whether the plaintiff actually made
out a prima facie case under McDonnell Douglas.” Brady v. Office of the Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008). Instead, the case is reduced to “one central question: Has the
employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted
non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race [or age]?” Id. Thus, “to survive summary
judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence
that the adverse employment decision was made for a discriminatory reason.” Lathram v. Snow,
A plaintiff may make the requisite showing by relying on “(1) evidence establishing the
plaintiff’s prima facie case; (2) evidence the plaintiff presents to attack the employer’s proffered
explanation for its actions; and (3) any further evidence of discrimination that may be available to
the plaintiff, such as independent evidence of discriminatory statements or attitudes on the part of
the employer.” Holcomb v. Powell,
DeJesus asks that the Court focus on the rationale contained in his termination memo. See Pl.’s Opp’n [ECF No. 39] at 17. The mеmo explains that DeJesus was terminated “for willful neglect of duty and insubordination.” Pl.’s Ex. 51A at 140. Elaborating further, the memo points out that—despite numerous instructions to the contrary—DeJesus failed to deliver the proprietary data of the RAM study directly to the client. See id. And DeJesus does not contest that, in its essentials, that information is true. DeJesus did meet with Sharpe instead of Hornberger. And Sharpe does lack “budgetary oversight.” See id. Thus, Wainwright was еntitled to say that DeJesus “fail[ed] to follow [her] specific instructions.” Id.
But were these instructions so specific? After all, Wainwright only said “client,” not
“Hornberger.” Hence, one could argue that DeJesus simply misunderstood, thinking that “client”
could refer to anyone at Allstate. Even that assumption, however, is not enough to help DeJesus.
The Court’s inquiry “is not the correctness or desirability of the reasons offered, but whether the
employer honеstly believes in the reasons it offers.” Fischbach v. Dist. of Columbia Dep’t of
Corr.,
DeJesus believes that the arbitral decision, which found in his favor, demonstrates
otherwise. See Alexander v. Gardner-Denver Co.,
Unsurprisingly, the arbitrator found that the Post had not met this burden. As described
above, it would be difficult to find that Wainwright gave a “clear order” to deliver the results to
Hornberger. See id. at 15. But that finding has little to do with the inquiry before the Court now,
where the burden has shifted to DeJesus, and the issue is not the clarity of Wainwright’s order, but
her own belief in the veracity of the grounds for termination. The arbitration award might be
evidence of something—but it does not address the issues now before the Court. See Coleman v.
Donahoe,
DeJesus attempts to bolster his claim by bringing in evidence unrelated to the termination memo. In particular, he complains that Wainwright’s other actions “show[] that she pursued a clear path to sabotage [his] employment.” Pl.’s Opp’n at 21. But this is an overstatement. For instance, he claims that Wainwright “inexplicably” transferred a large account to a less *9 experienced employee. See id. But Wainwright does offer an explanation—consolidating accounts by geography to save travel expenses, see Def.’s Ex. 4 at 49–51—that DeJesus has not undermined. No more availing are DeJesus’s arguments that Wainwright “intentionally gave false and incomplete information” to a supervisor regarding DeJesus’s choice to schedule a meeting at an inopportune time, see Pl.’s Opp’n at 22–23, and that Wainwright failed to investigate the RAM study fiasco before initiating his termination, see id. at 24. All of this evidence may go—to greater or lesser lengths—to showing that Wainwright was a difficult boss, or was not terribly fond of DeJesus, or could have handled the RAM matter better. But it does not move the needle at all regarding the only relevant issues—racism, ageism, or the validity of the Post’s рroffered explanations for DeJesus’s termination.
DeJesus also delves into specific interactions with Wainwright that he believes demonstrate
her racial animus. For instance, while she “would fly off the handle at other people,” he felt there
was “an edginess in her conversation and tone with [him], in particular, that [he] did not see with
others.” Pl.’s Ex. 3 [ECF No. 39-2] at 103. Wainwright also told DeJesus that he “spoke well”
and that “she could see [him] in a cаpacity as a financial advisor.” Id. at 106. And DeJesus felt
that Wainwright did not treat African-American clients well, describing one woman as “not a
friend of The Washington Post,” id. at 108, and not sitting at the same table as Sharpe, who is
African American, at a conference event, id. at 109. But these events are hardly evidence of racial
animus. Moreover, “stray remarks, even those made by a supervisor, are insufficient to create а
triable issue of discrimination where, as here, they are unrelated to an employment decision
involving the plaintiff.” Simms v. U.S. Gov’t Printing Office,
As to age discrimination, DeJesus relies primarily on the testimony of Mary Kathleen
Phillips, a womаn in her fifties who also worked for Wainwright. Phillips “felt degraded” at work
because Wainwright “berated [her] unnecessarily,” and believed that her colleagues—though
treated poorly—were not abused “to that extent.” Pl.’s Ex. 8 [ECF No. 39-3] at 4. But Phillips
never connected this potentially disparate treatment to her age; indeed, she “didn’t understand
why” Wainwright treated her that way. Id. When asked whether she had any evidence that
Wainwright “doesn’t like older peоple,” Phillips responded, “She didn’t like me. And whether
that was because I’m older, I don’t know. But I just know how she treated me.” Id. at 20. Phillips
also mentioned that another man, about her age, had been subject to Wainwright’s abrasive
demeanor as well. Id. at 12. But the content of Wainwright’s tirades seem to be linked to work
performance. For instance, Wainwright often screamed at Phillips about her accounts. See id. at
5. None of Phillips’s testimony suggests thаt Wainwright did not sincerely believe what she was
saying. The implication that Wainwright was a difficult supervisor for all of her employees, but
especially those of middle age, is “merely colorable,” Anderson,
Finally, DeJesus points to unrelated events that—he says—demonstrate a pattern of bad
behavior at the Post. Duncan Ballantine, a manager at the Post more than ten years ago, spoke to
DeJesus “in a very condescending tone.” Pl.’s Ex. 3 at 100. And people (whom DeJesus can’t
recall) told him that Ballantine made “insensitive remarks” (the nature of which DeJesus, again,
can’t recall). Id. Whitney Patton—a manager eight years ago—“possibly acted in a racially
*11
insensitive way.” Id. at 148. And twenty years ago, another emрloyee came to the Post wearing
a KKK belt buckle, and was not fired. Id. at 133. These incidents—isolated, hazy, and well in the
past—do not give rise to an inference that the Post is so overrun by racism that Wainwright, too,
must be proffering pretextual reasons for DeJesus’s dismissal. See Holcomb,
*12 Ultimately, DeJesus delivered helpful information to a person of influence in his client’s organization. To some, this would look like initiative. To Wainwright, it aрparently looked like insubordination. Wainwright’s decisions may seem like, or even be, poor management. Or a losing business strategy. Or unreasonable behavior. But those are her decisions—or the Post’s— to make, right or wrong. “Title VII . . . does not authorize a federal court to become a super- personnel department that reexamines an entity’s business decisions.” Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999) (internal quotation marks omitted). In the absencе of sufficient evidence for a reasonable jury to find that the Post’s non-discriminatory explanations were pretextual, the Court declines DeJesus’s invitation to become just that. [3]
CONCLUSION
For the foregoing reasons, the Court will grant the Post’s motion for summary judgment and deny its motion to strike. A separate Order has issued on this date.
/s/ JOHN D. BATES United States District Judge Dated: September 29, 2015
Notes
[1] For the purposes of this opinion, citations to the parties’ exhibits use thе pagination provided by the CM/ECF stamp on the docket entry.
[2] DeJesus does attempt to provide statistics demonstrating that discrimination at the Post is not merely anecdotal. He claims that, out of a set of fifty-six people forced to sign buy-outs at the Post between 2009 and 2011, forty-seven are African-American, and forty-eight are over forty years old. See Pl.’s Opp’n at 38. But there is no indication that the list of fifty-six people reрresents a complete (or even representative) set of all buy-outs at the Post in that time period. Rather, it is merely derived from the list of people DeJesus mentioned in his initial disclosures and interrogatory answers. See Pl.’s Exs. 11–13 [ECF No. 39-3]. Thus, the Court cannot draw any statistical conclusions from a potentially skewed set.
[3] DeJesus has also brought a claim under 42 U.S.C. § 1981, arguing that the Post’s treatment of him, including
his termination, “depriv[ed him] of the making, performance, modification[,] and/or enjoyment of all benefits,
privileges, terms and conditions of the contractual relationship governing his employment, at least in part” because of
his race. Compl. [ECF No. 1] ¶ 34. Because courts use the same McDonnell Douglas framework in Title VII and
section 1981 cases, see Brown v. Sessoms,