Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WINFRED WILKERSON, )
)
Plaintiff, )
)
v. ) Civil Case No. 9-2142 (RJL) )
)
W ACKENHUT PROTECTIVE )
SERVICES, INC., )
)
Defendant. )
)
)
ltvd MEMORANDUM OPINION (September J:I)O 11) [Dkt. # 14]
Plaintiff, Winfred Wilkerson ("Wilkerson" or "plaintiff'), brought an employment-discrimination action against his employer, Wackenhut Protective Services, Inc. I ("Wackenhut" or "defendant"), asserting gender discrimination claims under the D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-l40l.0l-2-140l.06. Complaint ("Compl."), Oct. 15,2009 [Dkt. #1-2]. Defendant removed the case to this Court on November 13,2009, and later filed a Motion for Summary Judgment. Def.'s Motion for Summary Judgment ("Mot. for Summ. J."), Sept. 2, 2010 [Dkt. #14]. Upon review of the pleadings, the entire rеcord, and the applicable law, defendant's Motion for Summary Judgment [Dkt. #14] is GRANTED.
Although Wackenhut Protective Services, Inc., is named in this suit, plaintiff acknowledges that Wackenhut Services, Inc. ("WSI") employed him. Def. 's Mot. for Summ. J. at 3, n.6.
BACKGROUND
I. Plaintiff's Employment With Wackenhut
Wilkerson is an African American male who was, at the time of filing this action, forty-seven years old. CompI., 6. Wackenhut provides armed and unarmed security services to government customers such as Walter Reed Army Medical Center ("Walter Reed"). Mot. for Summ. J. at 2; see also Def.'s Ex. 2, PaffDecI. , 2 [Dkt. #14-10]. Wackenhut is an equal-opportunity employer whose stated policy prohibits unlawful discrimination, including gender discrimination. Mot. for Summ. J. at 2; Def.'s Wilkerson Dep. Ex. 6, Equal Employment Opportunity Policy [Dkt. #14-2 at 16].
Around August 2008, Wackenhut succeeded Chenega Protective Services ("Chenega") as the security contractor for Walter Reed. Mot. for Summ. J. at 3; Def.'s Ex. 3, Deposition of Dale Paff ("Pаff Dep."), June 25, 2010, at 12:18-19 [Dkt. #14-11]. That same month, plaintiff applied for a job as a security officer with Wackenhut. Def.'s Wilkerson Dep. Ex. 3, Wilkerson Employment Application, Aug. 5, 2008 [Dkt. # 14-2]. Wackenhut gave plaintiff a conditional offer of employment, Def. 's Wilkerson Dep. Ex. 5, Aug. 1,2008 [Dkt. #14-2 at 14], and plaintiff began work shortly thereafter. [2] During discovery, Mr. Paff, Wackenhut's Regional Manager at that time, learned that plaintiff falsely represented his prior employment on his Wackenhut job application by stating that he had never been dismissed or asked to resign from a previous job. Mot. for Summ. J. at 3-4; see also Def. Dep. Ex. 3, Wilkerson Application for Employment, Aug. 5,2008, at 3 [Dkt. #14-2]. In fact, a prior employer had fired plaintiff for reckless and negligent driving which resulted in plaintiff crashing the employer's van, and for failing to report the accident. See, e.g., Def.'s Ex. 1, Wilkerson Dep. at 20:14-16,22:12- 15,29:4-19; Def. Dep. Ex. 4, Employee Disciplinary Notice, April 12, 2001 [Dkt. # 14-2 аt 7]. The employment application stated that "any misrepresentation, falsification, or omission of this application shall be sufficient reason for refusal or dismissal of ...
II. Wackenhut Attendance and Discipline Policies [3] Wackenhut's employee attendance polices are outlined in various company documents, including the Wackenhut Security Officer Handbook ("Handbook"),4 see, e.g., Oef.'s Oep. Ex. lO [Okt. #14-3 at 3], and WSI statements of policy. See, e.g., Oef.'s Oep. Ex. 12, Performance ofOuty Policy Change, Aug. 18,2008 [Okt. #14-9]. The Wackenhut Handbook clearly states that grounds for immediate dismissal include "[u]nexcused 'no call, no show' absence(s)." Oef.'s Oep. Ex. lO, Part 4 [Dkt. #14-6 at 3]; see also Def.'s Dep. Ex. 13, Policy #4, Work Attendance [Okt. #14-9 at 8] (noting that one "no call/no show" incident "will subject the employee to disciplinary action up to and including termination"). Company policy also emphasizes this point: "the following are examples of actions ... [whiсh] may result in disciplinary action, up to and including termination: excessive absences or tardiness (even when excused)." Oef.'s Dep. Ex. 12, Policy #1, Performance of Duty [Dkt. #14-9 at 5].
The Handbook does not appear to outline specific procedures for handling the request of an officer who wishes to swap shifts with another employee to avoid missing employment," Oef.'s Oep. Ex. 3, and plaintiff acknowledged as much during a sworn dеposition. Def.'s Ex. 1, Wilkerson Dep. at 14:22-15:17. In a sworn declaration, Paff stated that he would have fired plaintiff had the fraud come to light during plaintiff s employment. Def.'s Ex. 2, PaffDecl. ~~ 5-7.
[3] To the extent plaintiff contests the facts described below, he fails to actually identify genuine issues of material fact because he relies only on bare assertions and concIusory allegations instead of on admissible, record evidence.
[4] Plаintiff signed a receipt stating that he received, read, and understood the Handbook on August 5, 2008. Oef.'s Dep. Ex. 11, Receipt of WSI Employee and/or Security Officer Handbook, Aug. 5,2008 [Dkt. #14-9].
an assigned shift. However, Wackenhut does follow an unwritten, but "learned procedure" for such requests. Def. 's Ex. 3, PaffDep., at 51 :21-22 [Dkt. #14-11]. Specifically, then-Regional Manager Dale Paff explained that management requires employees to submit a "swap form" dеtailing information about the employee originally scheduled for a given shift and the employee who has agreed to take over the shift. See id. at 60-61. The form, which must be "signed by both employees and approved by management," id. at 51: 11-17, ensures that an employee is held accountable, a record is made, and management is informed about which employee is responsible for each shift, see id. at 52-53; see also Def.'s Ex. 4, Dep. ofLt. Victor Spаin ("Spain Dep.") [Dkt. #14- 12] at 38:3-8 ("Well, they were allowed to change shifts .... That was okay. But paperwork had to be done for that."). Indeed, "[ a]bsent an official written shift swap, the officer assigned to a shift at Walter Reed Army Medical Center is responsible for manning it." Def.'s Ex. 2, PaffDecl., ,; 4.
Importantly, although Wackenhut policy does include a "progressive discipline process" in which disciplinary actions may escalate commеnsurate with the number of an employee's unscheduled absences, Def.'s Dep. Ex. 13, Policy #4 - Work Attendance, at 3, Wackenhut also retains "the absolute right to terminate any employee at any time with or without good cause," Def.' s Dep. Ex. 10, Security Officer Handbook, at 3 § 2.15.
III. Plaintiff's Request For Vacation
In early September 2008, plaintiff submitted a request to his supervisor, Lieutenant Victor Spain, asking for two weeks of vacation in early October. Mot. for Summ.1. at 5; Pl.'s Opp'n at 4 [Dkt. #20]. Lt. Spain forwarded the request to Chief *5 limmi Brown, who delegated decision-making to Captain Haskins. Def.'s Ex. 1, Wilkerson Dep., at 69-71; see also Def. 's Ex. 4, Spain Dep. at 9-11.
At the time, Walter Reed was short-staffed and Wackenhut was trying to reduce overtime expenditures. Def.'s Ex. 3, PaffDep. 16:6-13, 19: 18-20:7; Def.'s Ex. 4, Spain Dep. 39:12-20; Def.'s Ex. 1, Wilkerson Dep. 59:5-60:1. As a result, Capt. Haskins denied plaintiffs request for leave, explaining the short-staff issue to plaintiff in person. Notwithstanding the staff shortages, however, Capt. Haskins аgreed to give plaintiff time off if plaintiff could find someone to cover his shifts - that is, if plaintiff could successfully complete a shift swap. Mot. for Summ. 1. at 5; PI.'s Opp'n at 4; Def.'s Ex. 1, Wilkerson Dep. 70:20-71 :4, 75:2-76:2, 77: 12-78: 17, 81: 15-82:4; Def.'s Dep. Ex. 15, Wilkerson's EEOC Charge of Discrimination [Dkt. # 14-9] ("I initially applied to use some of my ... accumulated leave for a week. Initially, I was turned down and was told that we were short of manpower .... Later I was told by my Captain that he would approve leаve ifI could find a replacement who was willing to work my shifts."). Plaintiff accepted Capt. Haskins' offer to orchestrate a shift-swap in order to take leave. Def.'s Ex. 1, Wilkerson Dep. 79:19-20 ("I said okay. I said, that's a deal.").
In total, plaintiff hoped to take leave - and thus swap duties - for six shifts between October 2 and October 1 0, 2008. The shifts were scheduled according to plaintiffs normal working days: in his case, for Thursday, Sunday, Monday, Tuesday, Wednesday, and the following Thursday. Pl.'s Opp'n at 4-5; PI.'s Attach. B, Wilkerson Decl., Oct. 11,2010 [Dkt. #20-1 at 11], ~ 5.
Plaintiff contends that he identified three other officers to cover his shifts. Mot. *6 for Summ. 1. at 7; PI.'s Opp'n at 4-5; PI.'s Attach. B, Wilkerson Decl., ~ 5. He maintains that Officer Samuel Addy agreed to work four of the six shifts: Monday, Tuesday, Wednesday, and Thursday. Mot. for Summ. J. at 7; PI.'s Opp'n at 5; Def.'s Ex. 1, Wilkerson Dep., 70:19-71:9, 82:5-83:2, 84:22-85:15; Def.'s Ex. 5, Addy Dep. 23:15- 27:10 [Dkt. #14-13]. Wackenhut acknowledges that Officer Addy orally informed Capt. Haskins that he would swap four shifts with plaintiff, and that Capt. Haskins orally approved plaintiffs request for time off. [5] Mot. for Summ. J. at 7. But it is undisputed that neither Wilkerson, nor Officer Addy, documented the shift swap, and that Capt. Haskins did not sign any document approving it. Jd.; see also Def.'s Ex. 5, Addy Dep. 24:16-17,25:9-16,27:4-5,28:5.
Nonetheless, Wilkerson took the leave he requested. Indeed, during that time, he attended a training class offered by Chenega Security, the predecessor for the Walter Reed contract, see PI.'s Opp'n at 5, and a Wackenhut competitor. See also PI.'s Attach. B, Wilkerson Decl., ~ 6. Meanwhile, Officer Addy did not show up for the four shifts he allegedly agreed to cover.6 Mot. for Summ. J. at 7; PI. 's Attach. C, Addy Decl., ~ 10; *7 Def.'s Ex. 3, PaffDep. 62:14-20. As such, Captains Brown and Haskins reported Wilkerson's absences to Paff, who, as Regional Director, was responsible for recommending disciplinary action for Wackenhut's Walter Reed employees. Mot. Summ. J. at 7; Def.'s Ex. 3, PaffDep. 5:13-14,27:2-4,31:5-9,43:2-10. In addition, the Captains explained that Wilkerson had missed mUltiple shifts over the course of that ten- day period. [7] See, e.g., Mot. SUlnm. 1. at 7; Def.'s Ex. 3, PaffDep. 18:20-20:10,27:11-17, 31: 10-32: 14. Paff also learned that Capt. Haskins (and perhaps others) had meaningfully attempted to reach Wilkerson on his cell phone to find out why he had not covered his shifts. [8] See id. at 32:5-14, 40: 18-21, 44: 11-18.
In sum, Paff concluded that plaintiff had abandoned his job, see, e.g., id. 40: 12-21, 44:9-45:7; Def.'s Ex. 1, Wilkerson Dep. 142:21-143:1, and instructed Chief Brown to issue a "job abandonment" letter terminating Wilkerson for missing "ten (10) scheduled that Addy was not listed "anywhere on the schedule." PI.'s Attach. C, Addy Decl., ~ 10. This comports with Pafrs testimony that "if the vacatiоn was not approved," (and according to Paff, it was not) Wilkerson "would still be scheduled for work on his shift on the schedule." Def.'s Ex. 3, PaffDep. 49:8-10. It is undisputed that Addy did not show up for the shifts - the likely result of Addy's assumption, after calling in, "that they must have got somebody else to cover [Wilkerson's] shifts." Pl.'s Attach. C, Addy Decl" ~ 10. And although no party explicitly makes this point, the evidence manifestly supports the inference that the documentation portion of the "shift swаp" procedure exists precisely to avoid the situation described here: missed shifts due to lack of formal communication between employees and employers.
Paff characterized the missed shifts as plaintiff "in effect" not "show[ing] up for approximately ten days" and being "unable to be contacted." Def.'s Ex. 3, PaffDep. 20:8-10. He later clarified that he did not contend that plaintiff "missed ten shifts," but rather that "for a pеriod of over ten days we were unable to get in contact with Mr. Wilkerson." Id. 50:1-5.
Plaintiff denies that anyone called him about missed shifts. PI. 's Attach B,
Wilkerson Decl" ~ 7.
days of work, without calling or letting [Wackenhut] know your status." Def.' sEx. 3, PaffDep. 49: 19-51 :7; Def.'s Dep. Ex. 16, Letter from J. Brown to Wilkerson, Oct. 16, 2008 [Dkt. # 14-9].
After his termination, plaintiff (curiously!) filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Def. 's Ex. 1, Wilkerson Dep. 75:2-10; Def.'s Dep. Ex. 15, EEOC Charge of Discrimination [Dkt. #14-9]. The EEOC dismissed plaintiff s charge for failure tо find any evidence of discrimination against him. Def.' sEx. 1, Wilkerson Dep. 117: 17 -22. Wilkerson then filed this civil action.
ANALYSIS
I. Standard of Review
A. Summary Judgment Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." When examining the record, the Court must view all inferences in the light most favorable to the non-moving party. See, e.g., Adiekes v. SH. Kress & Co., 398 U.S. 144, 157 (1970). But to avoid summary judgment, the non-moving party must introduce specific faсts "showing that there is a genuine issue for trial." Matsushita Elee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed. R. Civ. P. 56(e». That evidence "must consist of more than mere unsupported allegations or denial and must set forth specific facts." Walker v. Dalton, 94 F. Supp. 2d 8, 10 (D.D.C. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 n.3 *9 (1986». Indeed, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586.
B. Employment Discrimination
Claims under the DCHRA are analyzed under the burden-shifting framework
articulated in
McDonnell Douglas Corp.
v.
Green,
411
U.S. 792 (1973). Under that
framework, a plaintiff must establish a
prima facie
case by proving that (1) he is a
member of a protected class; (2) he suffered an adverse employment action; and (3) the
unfavorable action creates an inference of discrimination.
See McDonnell Douglas,
411
U.S. at 802. If a plaintiff successfully makes a
prima facie
case, the burden then shifts to
the defendant to articulate a "legitimate, nondiscriminatory reason for the employee's
rejection."
Id.
If the defendant is able to articulate such a reason, the burden shifts back
to the plaintiff to prove, by a preponderance of the evidence, that defendant's stated
reasons are actually pretext for discrimination.
Id.; see also Brady
v.
Office of the
Sergeant at Arms,
However, at the summary judgment stage, the Court need only resolve one central question: whether the employee "produced evidence sufficient for a reasonable jury to find that the employer's stated reason was not the actuаl reason and that the employer intentionally discriminated against [the employee] based on his [protected class]?" Brady, 520 FJd at 494.
II. Defendant Is Entitled To Summary Judgment Because Plaintiff Offers No Admissible Evidence of Discrimination.
In essence, plaintiff's discrimination claim boils down to this: as a male, he suffered disparate treatment when he was "treated less favorably than females who were taking vacation during th[ e] same period of timе to attend training for competitor security companies." PI.'s Opp'n at 7. Because he was asked to complete a shift swap before taking leave, and because he was fired when he did not successfully do so, plaintiff contends that he was "treated much more harshly than female coworkers who had attendance problems and were no call/no shows for several days in a row." See id. at 8.
Unfortunately for plaintiff, he offers no admissible evidence to prove his claims of disparate treatment. References (and citations) to unsworn and unauthenticated documents pertaining to the discipline of what plaintiff says are similarly situated female employees, see PI.'s Attach. J, Rhyne Notice of Termination [Dkt. #20-1 at 50], Attach. K, Walcott Abandonment Letter [Dkt. #20-1 at 55], have no value since those documents are inadmissible, PI.'s Opp'n at 7-8; see also Jackson v. Finnegan et. al, 101 F.3d 145,150 (D.C. Cir. 1996) ("Unless the opposing party points to 'affirmative evidence' showing disputed material facts, the court shall enter summary judgment, if appropriate, against the adverse party.") (internal citation omitted). Indeed, it is well established that "[ u ]nsworn, unauthenticated documents cannot be considered on a motion for summary judgment." Akers v. Liberty Mut. Grp.} 744 F. Supp. 2d 92,97 (D.D.C. 2010) (internal citations omitted);9 see also Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to Defendant contends, and I agree, that much of plaintiff's "evidencе" is, as a matter support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.").
In the same vein, Wilkerson's claims that a female employee requested - and was granted - vacation but was not asked to first complete a shift swap does not create a genuine issue where the only documentation supporting the assertion is unauthenticated and unsworn. See PI.'s Attach. I, Saab Leave Request Form [Dkt. #20-1 at 48]; see also Akers, 744 F. Supp. 2d at 97. Personal belief, speculation, and hearsay, however, are simply insufficient to defeat a motion for summary judgment. See, e.g., Robinson-Reeder v. Am. Council on Educ., 674 F. Supp. 2d 49,52 (D.D.C. 2009). With no actual evidence of disparate treatment before this Court, there is no reason to analyze - much less endorse - these aspеcts of plaintiff's claims. And in any event, plaintiff's own sworn admission- acknowledging that in other instances, Wackenhut has allowed other male employees to take time off without requiring them to first complete a shift swap, Def.' sEx. 1, Wilkerson Dep. 113: 19-114: 10,232:4-17, greatly undermines Wilkerson's claim of of law, inadmissible. To wit, plaintiff's Attachments E (Rivera Statement) [Dkt. #20-1 at 37], H (Aponte Statement) [Dkt. #20-1 at 47], I (Saab Leave Request Form) [Dkt. #20-1 at 48], J (Rhyne Disciplinary Record) [Dkt. #20-1 at 50], K (Walcott Disciplinary Record) [Dkt. #20-1 at 55], are unsworn, irrelevant, and/or hearsay and therefore inadmissible. Def.'s Reply at 3-4. As a result, they cannot be considered at summary judgment. Moreover, to the extent that Wilkerson's declaration (PI.'s Attach. B) and that of Officer Addy (PI.'s Attach. C), present conclusory beliefs and speculation (not evidence) and inadmissible hearsay, they are unpersuasive. See Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949) ("Affidavits filed by a party in support of or in opposition to a motion for summary judgment must present evidence" and should "follow substantially the same form as though the affiant were giving testimony in court") (internal citation and quotations omitted); see also Def.'s Reply at 3-4 [Dkt. #21].
11
gender discrimination.
Finally, even if plaintiff's utter lack of evidence were not already fatal to his
claims
[10]
(which it most certainly is), he is still unable to prove that Wackenhut's
legitimate, non-discriminatory reasons for firing him are pretextual. Plaintiff's mere
suggestion - absent admissible, corroborating evidence - that his personal disagreement
with the characterization of certain facts either creates a genuine issue or permits the
inference of pretext,
see generally
Pl.'s Opp'n at 15-18, does not make it so. For
example, although plaintiff offers an unsworn statement from Dale Paff (which cites
hearsay from Chief Brown) suggesting that plaintiff
did
submit the requisite shift-swap
paperwork,
see
Pl.'s Attach. L, Unsworn and Undated PaffStmt. at 8 [Dkt. #20-1 at 59],
that statement does not creatе a genuine issue of fact (much less an inference of
discrimination) because it is inadmissible.
See Jackson,
101 F.3d at 150. Plaintiff's
unsupported conclusion that "it is clear that in this case Chief Brown made the decision
[to terminate] even before any investigation was conducted" does not prove illegal
animus, either, and is similarly unavailing. Pl.'s Opp'n at 17;
see also, e.g.,
Pl.'s
Opp'n at 16 (unsupported contention that Chief Brown "fabricated" plaintiff's alleged
admission). Nor can plaintiff establish pretext by contending that Wackenhut could have,
but did not, impose progressive discipline, Pl.'s Opp'n at 7, 16 - especially when
Wackenhut policy permitted swift and severe punishment for a single "no show,"
see
discrimination. Wackenhut does not concede this point, Def.'s Reply at 9 n.8, and
That is, assuming that plaintiff could establish a
arguendo
case of
prima facie
because Wackenhut asserted a legitimate, nondiscriminatory reason for its actiоn, I "need
not -
and should not
- decide whether plaintiff actually made out a prima facie case
under
McDonnell Douglas." Brady,
Def.'s Mot. for Summ. 1. at 4.
In contrast to plaintiffs conclusory and unsupported assertions, Wackenhut has
offered more than enough evidence to show that it terminated plaintiff for a legitimate
and nondiscriminatory reason: plaintiff did not show up for multiple shifts for which he
was solely responsible. Ultimately, however, Wackenhut prevails becausе it must only
meet the standard of acting in good faith: "Once the employer has articulated a non
discriminatory explanation for its action ... the issue is not the correctness or desirability
of [the] reasons offered ... [but] whether the employer honestly believer d] in the reasons
it offers."
Fishbach
v.
D.C Dep't ofCorrs.,
believe that he had "miss[ed] [his] shift," Def.'s Ex. 1, Wilkerson Dep. 205:10-14 - thus substantiating, under oath, Wackenhut's nondiscriminatory and legitimate bеlief - he offers no evidence to the contrary. Most unsettling, however, and ultimately fatal to his claims, are Wilkerson's own admission - under oath - that he is not aware of any facts to support a conclusion that: (1) Paff, Chief Brown, or Lt. Haskins are prejudiced against men, Def.'s Ex. 1, Wilkerson Dep. 119:4-11, 169:l3-16, 215:14-18; or (2) "that Wackenhut terminated [him] because [he is] a man," id. at 107:7-11. Thus, it is no surprise that plaintiff s claims must, and will, join the ever-growing pantheon of meritless employment-discrimination claims used as a sword by disgruntled employees in an effort to leverage yet another opportunity with their former employer. II
CONCLUSION
For all of the foregoing reasons, defendant Wackenhut's Motion for Summary Judgment [Dkt. #14] is GRANTED. An order consistent with this decision accompanies this Opinion.
Because plaintiff does not survive summary judgment, defendant's argument that II this Court can deny relief for any damage or injuries plaintiff sustained beyond June 2010, when Paff discovered that plaintiff lied on his employment application, is moot. Def.'s Mot. for Summ. 1. at 14; Def.'s Reply at 14; McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995) (allowing courts to deny reinstatement, front pay, and back pay to employee prevailing on an ADEA claim when the employer presents after-acquired evidence of misconduct "of such severity that the employee in fact would have been terminated on those grounds alone if the еmployer had known of it at the time of the discharge").
Notes
[5] Plaintiff does not explain or provide evidence pertaining to who agreed to swap with him for the remaining two shifts. Wackenhut suggests that plaintiff "hoped" Officers Pope and Kilgore would cover the remaining two shifts, but plaintiff provides no evidence that either Officer was asked to swap before plaintiffs departure, and offers no evidence that either Officer agreed (much less documented the agreement in writing). Def.'s Ex. 1, Wilkerson Dep. 84:22-85:15,187:22-188:16 (admitting under oath that he "hadn't spoke[ n] with [Officer Kilgore] before [he] departed for [his] vacation"). Thus, plaintiffs assertion - with absolutely no explanation or supporting evidence - that he "arranged for others to cover" does nothing to prove his claim. PI.' s Opp' n at 16. In his own declaration, Addy explained that when he called into work the day before the first shift he (orally) agreed to cover for plaintiff, the sergeant on duty stated