Walker v. District of Columbia

MOTION for Summary Judgment

D.D.C.October 28, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SHAVON T. WALKER, : : Plaintiff, : : v. : Case No. 1:15-cv-00055-CKK-GMH : DISTRICT OF COLUMBIA, : : Defendant. : : DEFENDANT DISTRICT OF COLUMBIA’S MOTION FOR SUMMARY JUDGMENT Defendant District of Columbia (the District), by and through undersigned counsel, hereby moves this Court, pursuant to Fed. R. Civ. P. R. 56, for summary judgment. While Plaintiff seeks to proceed against the District for retaliation under the American With Disabilities Act, the Rehabilitation Act, and the D.C. Whistleblower Act, and race discrimination under Title VII, each of her claims fail as a matter of law. The grounds for the District’s motion are more fully set forth in the attached memorandum of points and authorities. The District has also attached its statement of material facts not in dispute and a proposed order for the Court’s consideration. Because this is a dispositive motion, the District is not required to seek Plaintiff’s consent pursuant to LCvR 7(m). Respectfully Submitted, KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General, Civil Litigation Division Case 1:15-cv-00055-CKK Document 54 Filed 10/28/16 Page 1 of 2 2 /s/ Patricia A. Oxendine ___________________ PATRICIA A. OXENDINE D.C. Bar No. 428132 Chief, Civil Litigation Division, Section I /s/ Kerslyn D. Featherstone _______________ KERSLYN D. FEATHERSTONE D.C. Bar No. 478758 CHARLES J. COUGHLIN D.C. Bar No. 1016993 Assistant Attorneys General Office of the Attorney General 441 Fourth Street, N.W., Suite 630 South Washington, D.C. 20001 Phone: (202) 724-6600; (202) 724-6608; (202) 727- 6295 Fax: (202) 715-8924; (202) 730-1887 Email: kerslyn.featherstone@dc.gov; charles.coughlin@dc.gov Counsel for Defendants Case 1:15-cv-00055-CKK Document 54 Filed 10/28/16 Page 2 of 2 TABLE OF CONTENTS TABLE OF AUTHORITIES………………………………………………………………………1 INTRODUCTION………………………………………………………………………………….1 FACTUAL BACKGROUND……………………………………………………………...............3 STANDARD OF REVIEW…………………………………………………………………..........6 STATEMENT OF CLAIMS………………………………………………………………………7 ARGUMENT………………………………………………………………………………………9 I. Plaintiff May Only Proceed Against the District for Adverse Actions Taken Against Her...…………………………………………………………………………….10 A. Some of Plaintiff’s Claimed Adverse Employment Actions Are Time- Barred Under the ADA and Title VII Or Plaintiff Failed To Exhaust Her Administrative Remedies With Respect to the Asserted Adverse Action…………..11 B. Plaintiff Cannot Establish that Many of the Employment Actions Taken Against Her Were Materially Adverse…………….………………………………………12 II. Plaintiff’s Claims Fail Against the District Under Each Statute…………………………16 A. Plaintiff Has Not Shown That She Engaged In Protected Activity or that There Existed Any Causal Link Between the Protected Activity Under the ADA or Rehabilitation Act And The Purported Adverse Action.……………………….. 16 B. Plaintiff’s Title VII Claims of Race Discrimination Fail As A Matter of Law…20 C. Judgment Should Be Entered in the District’s Favor on Plaintiff’s Whistleblower Claims……………………………………………………………………….…..24 1. Plaintiff’s Claimed Protected Disclosures Are Not Governed by the DC WPA. a. Plaintiff’s Complaints at McKinley. b. Plaintiff’s Complaints at Shaw. 2. The District Would Have Taken the Same Action As Related to Plaintiff Notwithstanding Plaintiff’s Purported Disclosures Under the DC WPA. Case 1:15-cv-00055-CKK Document 54-1 Filed 10/28/16 Page 1 of 2 D. Plaintiff Is Not Entitled to Equitable Relief…………………………………….32 CONCLUSION…………………………………………………………………………………32 Case 1:15-cv-00055-CKK Document 54-1 Filed 10/28/16 Page 2 of 2 TABLE OF AUTHORITIES CASES Agosta v. Suffolk Cty., 981 F. Supp. 2d 167 (E.D.N.Y. 2013)...................................................... 11 Aka v. Washington Hosp. Cent., 156 F.3d 1284 (D.C. Cir. 1998)................................................ 20 Alston v. District of Columbia, 561 F. Supp. 2d 29 (D.D.C. 2008)…................................ 8, 17, 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 6 AuBuchon v. Geithner, 743 F.3d 638 (8th Cir. 2014) ……………………………………………15 Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008) .............................................................. 14 Baynton v. Wyatt, 2007 U.S. Dist. LEXIS 18521 (D. Or. 2007) .................................................. 26 Brady v. Office of the Sgt. at Arms, 520 F.3d 490 (D.C. Cir. 2008) ............................................. 30 Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999)............................................................ 8, 13-14, 20 Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.1998) .................................................. 11 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)) ……………………………………………………………………………………………….. 8, 13 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ................................................. 16 Butts v. New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1402 (2d Cir.1993) .... 11 Carolyn v. Department of Interior, 63 M.S.P.R. 684 (M.S.P.B. 1994) ............................. 25, 27-28 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 6 Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 273 (2001)…………………………………31 Clarke v. Multnomah County, No. CV-06-229-HU, 2007 WL 915175 (D. Or. Mar. 23, 2007) .. 29 Crady v. Liberty Nat. Bank & Trust Co. of Ind. 993 F.2d 132 (CA7 1993)..................................10 Crane v. Crane, 657 A.2d 213 (D.C. 1995).................................................................................. 24 Crawford v. District of Columbia, 891 A.2d 216 (D.C. 2006) ..................................................... 25 Crenshaw v. Georgetown University, 23 F. Supp. 2d 11 (D.D.C. 1998)………………………….7 Case 1:15-cv-00055-CKK Document 54-2 Filed 10/28/16 Page 1 of 4 2 Crews v. Dep’t of the Army, 1999 U.S. App. LEXIS 25103, *6 (Fed. Cir. 1999)……………… 25 Devera v. Adams, 874 F. Supp. 17, 21, (D.D.C. 1995)…………………………………………..31 Dickerson, et al. v. Sectek, Inc., et al., 238 F.Supp.2d 66 (Nov. 13, 2002) .................................. 10 Everson v. Medlantic Healthcare Grp., 414 F.Supp.2d 77, 85 (D.D.C.2006) ............................ 13 Fox v. Giaccia, et al., 2006 U.S. Dist. LEXIS 17051 (D.D.C. 2006) ………………………..….30 Garret v. Lujan, 799 F. Supp. 198, 202 (D.D.C. 1992)……………………………………..…...31 Green v. Brennan, 195 L.Ed. 2d 44 (2016 ……………………………………………………..16 Hammond v. Chao, 383 F. Supp.2d 47, 59 (D.D.C. 2005)………………………………………30 Herbert v. Architect of Capitol, 766 F. Supp. 2d 59 (D.D.C. 2011)............................................. 14 Hernandez v. Gutierrez, 850 F. Supp. 2d 117, 122 (D.D.C. 2012) .................................................. 13 Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)…………………………………….... 30 Jones v. Septa, C.A. No. 12-6582, 2014 WL 3887747, at *10–11 (E.D. Pa. August 7, 2014)….23 Kumar v. D.C. Water and Sewer Authority, 25 A.3d 9, 10 (D.C. 2011) ..................................... 13 Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999)..................................................................... 25 Mack v. Strauss, 134 F. Supp. 2d 103 (D.D.C. 2001) .................................................................... 8 Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364 (D.C. Cir. 2007)............... 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .................................................... 17, 20 McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984) .................................................... 17 Mesnick v. Gen. Elec. Co., 950 F.2d 816 (1st Cir.1991) ................................................................ 8 Meuwissen v. Department of the Interior, 234 F.3d 9 (Fed. Cir. 2000) ....................................... 29 Mitchell v. Baldridge, 759 F. 2d 80, 86 (D.C. Cir. 1985) ............................................................ 17 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002) ....................................... 12 Novella v. Wal-Mart Stores, Inc., 2007 U.S. App. LEXIS 6446, *6 (11th Cir. 2007)…………...30 Pardo-Kronemann v. Donovan, 601 F.3d 599 (D.C. Cir. 2010) .................................................. 16 Case 1:15-cv-00055-CKK Document 54-2 Filed 10/28/16 Page 2 of 4 3 Park v. Howard Univ., 315 U.S. App. D.C. 196, 71 F.3d 904, 907 (D.C. Cir. 1995) ................. 11 Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989)…………………………………..……23 Raines v. U.S. Dep't of Justice, 424 F. Supp. 2d 60, 65 (D.D.C. 2006) ....................................... 11 Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142 (2000) ................................... 20, 23 Santa Cruz v. Snow, 402 F. Supp. 2d 113 (D.D.C. 2005)............................................................. 13 Sazinski v. Department of Housing and Urban Development, 73 M.S.P.R. 682 (M.S.P.B. 1997) .................................................................................................................................................. 25 Siaca v. Autoridad de Acueductos y Alcantarillados de Puerto Rico, 160 F.Supp.2d 188 (D.P.R.2001) ............................................................................................................................... 8 Simpkins v Washington Metropolitan Area Transit Authority, 1997 U.S. App. LEXIS 34629, *7 (D.C. Cir. 1997) ....................................................................................................................... 11 Smith v. District of Columbia, 430 F.3d 450 (D.C. Cir. 2005)) abrogated by Green v. Brennan, 195 L.Ed. 2d 44 (2016) ............................................................................................................. 16 Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir.1997)...................................................... 8 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). ...................................................... 20 Stella v. Mineta, 284 F.3d 135 (D.C. Cir. 2002)......................................................................... 20 Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). .......................... 20 Von Muhlenbrock v. Billington, 2008 WL 4381542 (D.D.C. Sept. 29, 2008) ............................. 30 Wilburn v. District of Columbia, 957 A.2d 921 (D.C. 2008) ....................................................... 29 Williams v. Dodaro, 2008 WL 4228363 (D.D.C. Sept. 17, 2008)................................................ 30 Willis v. Dep’t of Agric., 141 F.3d 1139 (Fed. Cir. 1998) ............................................................ 26 Wright v. Compusa, Inc., 352 F.3d 472 (1st Cir. 2003) ................................................................... 8 Zirkle v. District of Columbia, 830 A.2d 1250, 1258, 1261 (D.D.C. 2003)……………………9, 32 Case 1:15-cv-00055-CKK Document 54-2 Filed 10/28/16 Page 3 of 4 4 STATUTES DC Code § 1-615.51, et seq. (2001) ............................................................................................... 9 DC Code § 1-615.52 (2001) ..................................................................................................... 9, 24 5 U.S.C. § 2302(b)(8) (1996)........................................................................................................ 24 29 U.S.C. § 794 et seq. ............................................................................................................. 7, 11 42 U.S.C. § 2000e et seq................................................................................................................. 8 42 U.S.C.A. § 12101 et seq........................................................................................................... 11 42 U.S.C. § 12132........................................................................................................................... 8 42 U.S.C. § 12203........................................................................................................................... 8 RULES Fed. R. Civ. P. 56............................................................................................................................ 5 REGULATIONS 34 C.F.R. § 104.32.......................................................................................................................... 7 34 C.F.R. § 104.33.......................................................................................................................... 7 34 C.F.R. § 104.35.......................................................................................................................... 7 Case 1:15-cv-00055-CKK Document 54-2 Filed 10/28/16 Page 4 of 4 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SHAVON T. WALKER, : : Plaintiff, : : v. : Case No. 1:15-cv-00055-CKK-GMH : DISTRICT OF COLUMBIA, : : Defendant. : : MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE DISTRICT OF COLUMBIA’S MOTION FOR SUMMARY JUDGMENT Defendant District of Columbia (the District), by and through counsel, herein submits its memorandum of points and authorities in support of its motion. INTRODUCTION Hoping to prevail against the District in this case, Plaintiff has raised a hodgepodge of actions she classifies as adverse actions taken by her supervisors against her that purportedly led to the violation of her rights under the American With Disabilities Act, the Rehabilitation Act, Title VII, and the D.C. Whistleblower Act. As shown herein, Plaintiff has not met her burden of proof to prevail against the District under any claimed theory of liability. First, some of the alleged actions Plaintiff claims were adverse are time barred under the ADA and Title VII, and therefore she cannot proceed on those claims. Second, Plaintiff’s claim that the District withdrew its offer to her of employment at Ludlow-Taylor Elementary School is barred under the ADA and Title VII because she failed to exhaust this claim under these statutes. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 1 of 33 2 Third, many of the employment decisions made about or taken with respect to Plaintiff by the District that she classifies as adverse actions, do not rise to the level of adverse actions under the statutes under which she seeks to proceed. Fourth, the District does not herein challenge each claimed “adverse action.” Rather, the District submits that even if Plaintiff suffered adverse actions, she failed to establish a prima facie case of race discrimination as related to these claims as there is no evidence that the adverse actions taken against her was because of her race. Fifth, similarly, even if Plaintiff suffered adverse actions, which have not been challenged herein, she failed to establish a prima facie case of retaliation as she failed to show that any adverse action taken against her was because of her race or because she engaged in protected activity. Sixth, Plaintiff did not make disclosures that are governed under the D.C. Whistleblower Act nor show that there was a causal connection between her disclosure and any action taken against her. Finally, even if this Court finds that Plaintiff’s disclosures were governed under the D.C. Whistleblower Act and were causally connected to the adverse employment action, the District would have made the same employment decisions based on its legitimate non-discriminatory reasons. Accordingly, judgment should be entered in favor of the District on all claims asserted in Plaintiff’s amended complaint. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 2 of 33 3 FACTUAL BACKGROUND Plaintiff began her employment as a Special Education teacher at McKinley Technical High School (McKinley) in 2005. SUMF No. 1. At the beginning of the 2011 school year, Plaintiff was transferred to Shaw-Garnett Patterson Middle School (Shaw), as a continuing special education teacher. SUMF No. 10. Plaintiff alleges that before and even after her transfer to Shaw, she continued to raise complaints about the lack of resources available to implement the necessary requirements of her special education student’s Individualized Education Plan (IEP) into the following school year. SUMF No. 14. The IEPs were plans developed for an individual student based on his/her determined or qualified educational disability. SUMF No. 24. As part of Plaintiff’s duties as a special education teacher, Plaintiff was charged with developing, along with a team, each of her students’ IEPs to be implemented during the period. SUMF No. 31. During the 2012-2013 school year, Plaintiff was alleged to have fraudulently completed an IEP for a student and submitted it as a finalized document in EasyIEP; the IEP management system. SUMF No. 35. Shaw’s Assistant Principal, Sara Dykstra, and Principal, Guillame Gendre, reported to the Labor Management and Employee Relations Division (LMER) of DCPS potential fraudulent actions committed by Plaintiff. SUMF No. 36. An investigation was initiated into the complaints about Plaintiff’s fraudulent activity. SUMF No. 37. Around the same time of the pending investigation, it was determined that Shaw would be closing at the end of the 2012-2013 school year and all teachers and employees would need to secure new employment. SUMF No. 38. Plaintiff avers that she successfully secured employment with Ludlow-Taylor Elementary School. SUMF No. 39. However, before Plaintiff began employment with Ludlow-Taylor, the investigation was completed. SUMF No. 40. A Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 3 of 33 4 review board, led by Erin Pitts, met and determined that the appropriate adverse action to be given to Plaintiff was termination from her position with DCPS. SUMF No. 4. Plaintiff was thus terminated on September 2, 2012. SUMF No. 42. Through her union, Plaintiff filed a grievance about her termination and that matter is currently pending before the Office of Employee Appeals. SUMF No. 43. On or about June 19, 2016, Plaintiff filed a Charge of Discrimination (Charge) with the Equal Employment Opportunity Commission (EEOC). SUMF No. 44. In that Charge, Plaintiff identified the following actions taken against her during the period November 17, 2010, through June 13, 2012: 1. On September 2, 2011, she was involuntarily transferred to Shaw Middle School as a Special Education Teacher-Autism. SUMF No. 45a. 2. On November 17, 2010, Colleen Koval (White), the Special Education Autism Program Manager (PM) for DC Public Schools told her in a staff meeting, in front of her peers, that she was going to be written up. SUMF No. 45b. 3. On November 23, 2010, Plaintiff received a written reprimand. SUMF No. 45c. 4. In August 2011, she was denied her request for school resources she needed. SUMF No. 45d. 5. On April 10, 2012, she was placed on an unwarranted leave restriction. SUMF No. 45e. 6. On April 25, 2012, she was given a letter of reprimand. SUMF No. 45f. 7. On or about June 13, 2012, she was given a poor performance review which was inconsistent with two other evaluations provided by the Special Education Master Educators at the Central District Office. SUMF No. 45g. Plaintiff submitted an amended EEOC Charge of Discrimination, dated May 16, 2014. SUMF No. 46. Within that Charge, Plaintiff did not change the dates of claimed discrimination from the period October 2012, through December 2012, but listed additional claimed acts of racial discrimination as follows: Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 4 of 33 5 1. “I]nequitable distribution of workloads, resources, and access to professional development opportunities among the races.” SUMF No. 47a. 2. During the period February 2013 through August 2013, she participated in an unexpected investigation regarding a fraudulent IEP, and that the documentation regarding the investigation became part of her personnel file. SUMF No. 47b. 3. She received a low performance evaluation score because of the lack of direction provided to her on future tasks. SUMF No. 47c. Additional acts of retaliation were identified by Plaintiff in the May 16, 2014, amended EEOC Charge as follows: 1. In April 2013, she was suspended with no pay re: “negligence and dereliction of duties.” SUMF No. 47d. 2. In April & May 2013, she was not paid for all medical leave taken despite providing medical notes. SUMF No. 47e. 3. In July 2013, she received a letter stating that her overall performance evaluation for the entire school year is not within an acceptable range to receive a pay increase. SUMF No. 47f. 4. In January 2014, her administrative appeal to the Chancellor regarding her performance evaluation scores was denied. SUMF No. 47g. 5. In March 2013, she was suspended for three days. SUMF No. 47h. 6. The IMPACT process was violated when her performance was not properly rated. SUMF No. 47i. 7. On August 8, 2013, she was notified that her employment was terminated. SUMF No. 47j. Plaintiff filed this action against the District of Columbia alleging retaliation under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (Rehab Act), race discrimination under Title VII, and retaliation under the D.C. Whistleblower Act (DC WPA). The District now moves for summary judgment, pursuant to Fed. Civ. R. P. 56. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 5 of 33 6 STANDARD OF REVIEW Summary judgment should be granted “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.” Fed. R. Civ. P. 56(a). “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and . . . it should be interpreted in a way that allows it to accomplish this purpose.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the initial burden of showing there exists no genuine issues of material fact and the court should rule on legal issues in its favor. See Celotex, 477 U.S. 317, 323 (1986). To survive the motion, the non-moving party must then in opposition “set forth specific facts showing that there is a genuine issue for trial,” Celotex, 477 U.S. at 323; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (ruling the nonmoving party must establish more than a mere “scintilla of evidence” in support of its position). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,” the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). That is to say, if the nonmoving party fails to raise affirmative evidence showing a genuine issue for trial exists, “summary judgment, if appropriate, shall be entered against the adverse party.” Anderson, 477 U.S. at 257 (quoting Fed.R.Civ.P. 56(e)). Moreover, a court should “grant summary judgment where the non-movant’s evidence is conclusory, speculative, or not significantly probative.” Anderson, 477 U.S. at 249-50. The mere existence of a factual dispute will not preclude summary judgment. Only factual disputes that may determine the outcome of a suit may effectively preclude the entry of summary judgment. Id. To be a genuine fact, the assertion must be supported by sufficiently Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 6 of 33 7 admissible evidence and cannot be based on conclusory allegations, denials, or opinions. Crenshaw v. Georgetown University, 23 F. Supp. 2d 11 (D.D.C. 1998). STATEMENT OF CLAIMS Plaintiff seeks to proceed against the District under a number of statutes, including the Rehabilitation Act (Rehab Act), the American With Disabilities Act (ADA), Title VII, and the D.C. Whistleblower Protection Act (DC WPA). The applicable law and protections of each statute under which Plaintiff seeks to proceed are briefly discussed below: Section 504 of the Rehab Act is essentially a nondiscrimination provision applicable to all federally funded programs. It provides as follows: No otherwise qualified individual with a disability in the United States... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. Section 504, 29 U.S.C. § 794(a), emphasis added. As to educational programs, the federal regulations implementing Section 504 require that students with disabilities have equal access to public schools and that they receive a “free appropriate public education” (FAPE) regardless of the nature or severity of their disabilities. 34 C.F.R. § 104.33. Section 504 applies to all students who have mental or physical impairments, who have a record of physical or mental impairments, or who are regarded as having a mental or physical impairment, if the impairment substantially limits one or more major life activities. Under the regulations, a school district has an affirmative duty to identify, locate, and evaluate all children with disabilities. 34 C.F.R. §§ 104.32, 104.35. Similarly, the ADA prohibits public entities from excluding qualified individuals with disabilities from participating in or receiving the benefits of “the services, programs, or Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 7 of 33 8 activities” of that entity. 42 U.S.C. § 12132. Although the text of the ADA and the Rehabilitation Act differ, courts frequently interpret them analogously. E.g., Alston v. District of Columbia, 561 F.Supp.2d 29, 39 (D.D.C. 2008). While Plaintiff does not claim a disability under either the ADA or the Rehab Act, she is entitled to proceed under those statutes under a theory of retaliation. See Wright v. Compusa, Inc., 352 F.3d 472 (1st Cir. 2003), where the Court of Appeals affirmed the grant of summary judgment to the employer because the plaintiff’s claimed disability was not qualifying, yet reversed summary judgment as to the retaliation claim finding that “[a]n ADA plaintiff need not succeed on a disability claim to assert a claim for retaliation.” Id., citing Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.1997)(citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir.1991)); see also Siaca v. Autoridad de Acueductos y Alcantarillados de Puerto Rico, 160 F.Supp.2d 188, 198 (D.P.R.2001). The Court reasoned that “[t]he ADA's retaliation provision states: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). See also Alston, 561 F.Supp.2d at 39. Under Title VII, it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual's race, color ... sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). See also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also Mack v. Strauss, 134 F. Supp. 2d 103, 112 (D.D.C. 2001) (citing Brown v. Brody, 199 F.3d 446, 454-55 (D.C. Cir. 1999)) ("Title VII plaintiffs must demonstrate that an allegedly adverse personnel action had a tangible impact on the terms and conditions of a plaintiffs employment"). Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 8 of 33 9 Finally, the DC WPA protects employees’ right to report waste, fraud, abuse of authority, violations of law, or threats to public health or safety without fear of retaliation or reprisal. See D.C. Code § 1-615.51. The DC WPA includes the refusal to comply with an illegal order or disclosure of information about unethical or illegal conduct as protected disclosures. A protected disclosure is also defined as any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the employee reasonably believes evidences: 1. Gross mismanagement; 2. Gross misuse or waste of public resources or funds; 3. Abuse of authority in connection with the administration of a public program or the execution of a public contract; 4. A violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or 5. A substantial and specific danger to the public health and safety. See D.C. Code § 1-615.52(6). A defense under the DC WPA is that the employer would have taken the same personnel action in the absence of the purported disclosures protected by the Whistleblower Act. See Zirkle v. District of Columbia, 830 A.2d 1250, 1258, 1261 (D.D.C. 2003). ARGUMENT For each claim asserted by Plaintiff, she must show that (1) there was an adverse employment action taken against her, and (2) under Title VII, that the action taken against her was because of her race. Under the DC WPA and the ADA/Rehab Act, in addition to showing that she was subjected to adverse employment actions, she must show that there was a causal connection between the adverse employment action taken against her and her claimed protected Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 9 of 33 10 activity. Absent a showing of either factor, Plaintiff’s claims fail under each statute and summary judgment should be granted in favor of the District. Because each of Plaintiff’s claims requires a finding of an adverse employment action, the District has analyzed this factor first. As will be demonstrated below, many of the employment actions taken against or made about Plaintiff throughout the course of her employment with D.C. Public Schools do not rise to the level of an adverse action sufficient to proceed on any claim in her Amended Complaint. Those that did constitute adverse actions were not influenced by Plaintiff’s race or her protected activity, and certainly were not the result of retaliation. Moreover, with respect to Plaintiff’s claimed whistleblower activity, the District will show that Plaintiff did not make any protected disclosures as defined by the DC WPA. Even had she made protective disclosures, the District will demonstrate that it would have made the same personnel decisions notwithstanding her protected disclosures. I. Plaintiff May Only Proceed Against the District for Adverse Actions Taken Against Her. An adverse action is a personnel decision, which adversely affects an employee such as a suspension, reduction in grade or status, or removal. “To count as an adverse employment action, in context of establishing a prima facie claim … the action must have had materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment; this means that actions imposing purely subject harms, such as dissatisfaction or humiliation, are not adverse.” See Dickerson, et al. v. Sectek, Inc., et al., 238 F.Supp.2d 66 (Nov. 13, 2002), emphasis added. See also Crady v. Liberty Nat. Bank & Trust Co. of Ind. 993 F.2d 132, 136 (CA7 1993) (“A material adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 10 of 33 11 material loss of benefits, significantly material responsibilities, or other indicates that might be unique to a particular situation.”) A. Some of Plaintiff’s Claimed Adverse Employment Actions Are Time- Barred Under the ADA and Title VII And/Or Plaintiff Failed To Exhaust Her Administrative Remedies With Respect to the Asserted Adverse Action. Under the ADA, the Court may only hear claims that are contained in a party’s EEOC Charge. See Agosta v. Suffolk County 981 F.Supp.2d 167 (E.D.N.Y. 2013), citing Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.1998) (citing Butts v. New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1402 (2d Cir.1993)) (A district court only has jurisdiction to hear claims brought pursuant to the ADA that are either contained in the EEOC charge or that are “reasonably related” to the claims in the EEOC charge .)1 Similarly, claims brought under Title VII require the plaintiff to exhaust all of her administrative remedies before bringing suit, and the claim must be set forth in the EEOC charge to be considered as exhausted. See Park v. Howard Univ., 315 U.S. App. D.C. 196, 71 F.3d 904, 907 (D.C. Cir. 1995) (en banc); Raines v. U.S. Dep't of Justice, 424 F. Supp. 2d 60, 65 (D.D.C. 2006), emphasis added. Requiring the exhaustion of remedies "serves the important purposes of giving the charged party notice of the claim and narrowing the issues for prompt adjudication and decision." Park, 71 F.3d at 907 (internal quotations omitted)." A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations." Id. (internal quotations omitted). A party filing an EEOC Charge in compliance with either the ADA or Title VII must do so within 180 days, but this time period may be extended to 300 days if first filed with the state or local agency. See ADA of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq. See also Simpkins v 1 There is no exhaustion requirement under the Rehab Act. 29 U.S.C. § 794a(2). Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 11 of 33 12 Washington Metropolitan Area Transit Authority, 1997 U.S. App. LEXIS 34629, *7 (D.C. Cir. 1997). In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002), the Supreme Court held that a plaintiff is precluded from recovery for discrete acts of discrimination that fall outside of the statutory administrative reporting period. Here, Plaintiff filed her first EEOC Charge on June 19, 2012, and amended the Charge on May 16, 2014. SUMF No. 44 and 46. Because Plaintiff filed her charge on June 19, 2012, she cannot proceed against the District for claims arising before August 19, 2011, under the ADA or Title VII because this period is longer than the 300 days for which filing a Charge of Discrimination is required. Consequently, Plaintiff’s claimed adverse actions, including the November 17, 2010, threat to write her up, the November 23, 2010, written reprimand, and any denial of requests for resources that occurred before August 19, 2011, are not actionable against the District under the ADA or Title VII. Plaintiff’s claim that in August 2013, the District withdrew its offer to her to work at Ludlow-Elementary school is also not actionable since it is not set forth in the May 16, 2014, Charge,2 and therefore she failed to exhaust her administrative remedies relating to this claim. SUMF No. 49. On this record, summary judgment should be granted in favor of the District as to the claims that allegedly occurred before August 19, 2011, and the August 2013, withdrawal of employment offer as she is procedurally barred from proceeding on these acts. B. Plaintiff Cannot Establish that Many of the Employment Actions Taken Against Her Were Materially Adverse. As demonstrated herein, many of the employment actions Plaintiff alleges were taken against her, did not materially change her circumstances and therefore did not rise to the level of 2 This claim would not have been asserted in the June 19, 2012, since the event date allegedly occurred after the charge was filed. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 12 of 33 13 adverse actions.3 In fact, “[i]t is well-established that an adverse employment action must involve “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Kumar v. D.C. Water and Sewer Authority, 25 A.3d 9, 10 (D.C. 2011) (citing Burlington Indus., Inc., 524 U.S. at 761). Here, Plaintiff’s claims of lack of resources and professional development did not constitute adverse actions. “Although courts have recognized that “a denial of training may rise to the level of an adverse employment action,” in order to prevail, a plaintiff must show “legally cognizable adversity flowing from the denial....” Kumar, supra (citing Everson v. Medlantic Healthcare Grp., 414 F.Supp.2d 77, 85 (D.D.C.2006); Santa Cruz v. Snow, 402 F. Supp. 2d 113, 127 (2005) (“Denial of a training opportunity on allegedly discriminatory grounds can constitute an adverse employment action, [ ] but only if the denial materially affects the plaintiff's pay, hours, job title, responsibilities, promotional opportunities, and the like (other citation omitted)). Here, Plaintiff has not met her burden to demonstrate legal cognizable adversity. First, Plaintiff’s transfer from McKinley to Shaw on September 2, 2011, was not an adverse action since it is not a material change of circumstances. See Hernandez v. Gutierrez, 850 F. Supp. 2d 117, 122 (D.D.C. 2012) (holding that a transfer did not qualify as materially adverse where it was not accompanied by a significant change in responsibilities). See also Brown v. 3 The District does not argue that Plaintiff’s termination was not an adverse action, nor does it argue that Plaintiff’s grievances are not protected activities. Similarly, the District does not argue that any suspension from work without pay is not an adverse action. However, because Plaintiff has not demonstrated that she actually lost pay because she received low performance evaluations, the District continues to argue that no adverse action resulted from the low performance evaluations. More importantly, as will be shown herein, even if this Court finds that Plaintiff has established that she experienced adverse actions or otherwise engaged in protected activity, she still has not made out a prima facie case to support liability against the District. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 13 of 33 14 Brody, 199 F.3d 446, 455-56 (D.C. Cir. 1999) (differentiating between changes in assignments or work-related duties that are accompanied or unaccompanied by a salary decrease, with the former being included in the category of adverse employment decisions). Here, Plaintiff admits that when she was hired in 2005, she was hired as a special education teacher. SUMF No. 1. When she was transferred to Shaw, she remained a special education teacher. SUMF No. 10. Although Plaintiff worked with high functioning Autistic students while at McKinley and she later worked with intellectual disabled students at Shaw, they were all under the Special Education programs. SUMF Nos. 2 and 13. Plaintiff failed to provide any proof showing that there was any measurable change of circumstances based on the transfer. As such, Plaintiff’s transfer is not actionable since it does not rise to the level of an adverse action. Second, neither the November 17, 2010, claimed threat of a write-up, the November 23, 2010, reprimand (each of which are procedurally barred), the April 10, 2012, leave restriction nor the April 25, 2012, letter of reprimand are adverse actions. See Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008) (two letters of counseling and one official letter of reprimand insufficient for finding of adverse action where letter lacked abusive language and contained only job-related criticism); Herbert v. Architect of Capitol, 766 F. Supp. 2d 59 (D.D.C. 2011) (written reprimand insufficient for finding of adverse action where letter reprimand contained no abusive language nor did it affect employee’s pay, grade, or working conditions). Here, Plaintiff cannot demonstrate on this record that the mere threat that she would be written up is sufficient to rise to an adverse action. Moreover, the record shows that Plaintiff was written up on November 23, 2010, by Mr. David Pinder, not Ms. Koval, who she claims made the threat and targeted her. SUMF No. 3. In addition, because Plaintiff cannot show that the November 17, 2010, threat of a write-up or the actual November 25, 2010, reprimand, the April 10, 2012, leave restriction, or the April 25, 2012, reprimand actually changed a condition of her employment or Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 14 of 33 15 her pay so as to qualify as materially adverse. As such, judgment should be entered in favor of the District on these claims. Third, Plaintiff’s claim that during the period October 2012 to December 2012, she experienced “inequitable distribution of workloads, resources, and access to professional development opportunities among the races,” SUMF No. 47a, is not actionable. See AuBuchon v. Geithner, 743 F.3d 638 (8th Cir. 2014). In that case, a white male IRS employee alleged retaliation under Title VII. The Court found that he had not demonstrated that the employment actions taken against him, to include increasing his caseload, and alleging he engaged in sexual harassment were material, finding that these acts would not reasonably deter another employee from making a discrimination charge. Fourth, Plaintiff has not demonstrated that because she participated in an unexpected investigation regarding a fraudulent IEP, and that the documentation regarding the investigation became part of her personnel file she suffered a material change of circumstances. While the findings of the investigation may result in an adverse action, such as termination, suspension or demotion, the mere fact that an investigation occurred by itself is not proof that Plaintiff suffered an adverse action. On this record, Plaintiff cannot establish that the mere happening of an investigation is sufficient to establish that it was an adverse action, and thus summary judgment should be entered in favor of the District on each of these claimed adverse actions. Fifth, Plaintiff also alleges that “[the District] [ ] violated the IMPACT process when [her] performance was not properly evaluated.” SUMF No. 47i. Similarly, Plaintiff claims she received a low performance evaluation score because of the lack of direction provided to her on future tasks. SUMF No. 47c. The record is completely devoid of any evidence that any of the above actions caused a material change in Plaintiff’s circumstances. Other than make Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 15 of 33 16 argument, Plaintiff has not shown that her low performance evaluations by themselves resulted in legally cognizable adversity. While Plaintiff tries to bootstrap her low performance evaluations to the January 2014, denial of her administrative appeal to the Chancellor regarding her performance evaluation scores that allegedly caused her to lose pay, this action cannot be shown to be materially adverse. SUMF No. 47g. Plaintiff was terminated in August 2013, therefore, the denial of her appeal in January 2014 is moot since she was not an employee at that time and would therefore not have received a pay increase. On this record, Plaintiff has not shown when an increase would have taken effect such that the denial of the appeal resulted in an adverse action. Accordingly, summary judgment should be entered in the District’s favor on these claims. II. Plaintiff’s Claims Fail Against the District Under Each Statute. A. Plaintiff Has Not Shown That She Engaged In Protected Activity or that There Existed Any Causal Link Between the Protected Activity Under the ADA or Rehab Act And The Purported Adverse Action. A prima facie case of retaliation under the ADA and the Rehab Act requires the plaintiff to show “first, that she ‘engaged in protected activity’; second, that she ‘was subjected to adverse action by the employer’ (discussed in Section I.B.); and third, that ‘there existed a causal link between the adverse action and the protected activity.’” Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007) (quoting Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)) abrogated by Green v. Brennan, 195 L.Ed. 2d 44 (2016). Retaliation claims do not protect an individual “from all retaliation, but from retaliation that produces an injury or harm[.]” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also Pardo-Kronemann v. Donovan, 601 F.3d 599, 615 (D.C. Cir. 2010) (“The question of the ‘adversity’ required for an ‘action’ to be retaliatory naturally depends on Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 16 of 33 17 objective differences between the conditions before and after the [challenged action].”). Because the test for retaliation under the ADA and Rehab Act was originally developed in the employment discrimination context, the standards articulated in employment discrimination cases apply. See Alston v. District of Columbia, 561 F. Supp. 2d 29, 40 (D.D.C. 2008). The plaintiff at all times retains the burden of persuasion. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The requirements needed under the ADA and the Rehab Act are similar to the requirements under Title VII. See Mitchell v. Baldridge, 759 F. 2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984) (In order to establish a prima facie case of retaliation, Plaintiff must show: 1) that he participated in a statutorily protected activity; 2) that the District took an adverse employment action against him, and 3) that a causal connection existed between the two.) Here, Plaintiff alleges that she consistently complained that she was not being provided the resources needed to implement students’ IEPs, which in turn prevented her from fulfilling her duties as a special education teacher. SUMF No. 14. Plaintiff believed this was protected activity because her complaints related to DCPS school administrators’ violations under the Individuals with Disabilities in Education Act (IDEA). SUMF No. 22. However, other than claim she was denied textbooks, a white board, and “certain assistive technology devices” that she needed, the record is devoid of the specific resources required under the IDEA that Plaintiff claims she requested and was denied. SUMF No. 23. Nor has Plaintiff demonstrated that the resources she wanted and was denied were actually “required” under the IDEA for her students. Nor has she demonstrated that the lack of resources about which she complained adversely impacted the students, i.e. she did not demonstrate how the lack of the claimed “required” resources under the IDEA precluded her from performing her work as related to the students. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 17 of 33 18 During deposition, Plaintiff testified that “[she] knew [she] would be held accountable for things that [she] may not have been able to do despite not having the resources or support, and [she] just wanted to make sure that was clear….” SUMF No. 50. At deposition, when asked what type of resources did the high school autistic children need through her program that she was working with, Plaintiff testified that “[t]hey would have needed social, emotional, skills program, anything dealing with transitioning from high school to college. So materials on post secondary ed, employment, independent living…general life skills.” SUMF No. 51. Plaintiff further explained that she would tell administrators that “these IEPs are saying X, Y and Z or there’s an attorney involved, what are we going to do to best meet the student’s needs or this kid’s IEP says that, … they’re supposed to have access to, you know, certain assistive technology devices. I don’t have that tin my classroom, are you going to order that for me?” SUMF No. 27. There has been no showing that the IDEA required each class to contain the type of textbooks Plaintiff claims she needed, the white board, or “assistive technology devices.” Not only is there no showing that Plaintiff’s complaints about the absence of these resources in her classroom rose to the level of protected activity, there has been no showing that any other complaints about resources that Plaintiff claims she was denied rose to the level of protected activity. Other than give a broad sweeping argument that she was denied “resources,” there is simply no basis for this Court to conclude that the resources Plaintiff claims she was denied violated the IDEA. Absent this information from competent sources, a jury would have to engage in undue speculation. More importantly, even if Plaintiff demonstrates that she engaged in protected activity, she has not shown that any adverse action that was taken against her was in retaliation for her engaging in protected activity. While Plaintiff claims that she was transferred from McKinley to Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 18 of 33 19 Shaw in retaliation for engaging in protected activity, a causal connection between the two is absent. Plaintiff acknowledges that while at McKinley, she was the special education teacher to high functioning autistic students. SUMF No. 2. At the end of the 2010-2011 school year, it was determined that these students would be assimilated into the general education classes. SUMF No. 9. There has been no showing that Plaintiff’s complaints in any way influenced this decision. In fact, Plaintiff admits “she was told that they needed additional support at Shaw Middle School. They needed to reallocate funds at the time, they didn’t have a special education teacher who could oversee … students with … an intellectual disability at Shaw Middle School and so they needed someone to cover the classroom” SUMF No. 11. Moreover, Plaintiff admitted that upon her transfer to Shaw, she ended up taking extra kids from another autism class who were not supposed to be in that class. SUMF Nos. 12. Thus, because Plaintiff has presented absolutely no evidence that her transfer was in retaliation for engaging in protected activity, judgment should be entered in favor of the District for this transfer. Plaintiff argues that when she made complaints to the prior administration (before David Pinder), she would often get some of her requested resources. This by itself demonstrates that she was not denied resources because of her complaints. In addition, not only has Plaintiff not shown that she was denied resources either at McKinley or Shaw because she engaged in protected activity, she has not shown that she was disciplined (suspended), placed on restricted leave, not timely paid, lost pay or that the job at Ludlow Taylor was withdrawn because she engaged in protected activity. For these reasons, Plaintiff’s claims under the ADA, the Rehab Act, Title VII, or the DC WPA fail as a matter of law. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 19 of 33 20 B. Plaintiff’s Title VII Claims of Race Discrimination Fail As A Matter of Law. Under Title VII, after showing she suffered an adverse action, the plaintiff must then show that the unfavorable action gives rise to an inference of discrimination. Stella v. Mineta, 284 F.3d 135,145 (D.C. Cir. 2002) (quoting Brown, 199 F.3d at 452. Under the familiar McDonnell Douglas burden shifting framework, "the plaintiff must [first] establish a prima facie case of discrimination" to proceed with her lawsuit. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142 (2000) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If the plaintiff makes a prima facie case, then the burden "shifts to the employer to articulate legitimate, non-discriminatory reasons for the challenged employment decision." See Aka v. Washington Hosp. Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). If the employer articulates a legitimate, non- discriminatory reason for the termination, the presumption of discrimination raised by the prima facie case is rebutted and "drops from the case". See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). Once the defendant satisfies this burden, the plaintiff then has the opportunity to demonstrate that the employer's proffered reason is merely a pretext for unlawful discrimination. See Aka, 156 F. 3d at 1288. Throughout, the employee retains "the ultimate burden of persuading the court that she has been the victim of intentional discrimination." Burdine, 450 U.S. at 256. Here, the District need not articulate a legitimate, non-discriminatory reason for its challenged employment decisions as related to Plaintiff’s race claims since Plaintiff simply has failed to establish a prima facie case for race based discrimination. In fact, she has not shown that race played any role in any challenged decision. With respect to the denial of training or resources to her or for her low performance ratings (or suspensions) when she worked at Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 20 of 33 21 McKinley or Shaw or for the investigation of which she was a part, whether or not adverse actions, Plaintiff has presented no evidence from which a reasonable jury could find that she was subjected to race discrimination as she contends. Because there is no direct evidence of race discrimination, Plaintiff must show indirect evidence, which she has failed to do. While Plaintiff argues that there was an inequitable distribution of workloads or resources that she allegedly experienced for the period October 2012 through December 2012, she has not demonstrated that race played any role in the distribution of workloads or resources or the alleged adverse actions she claims she experienced. In fact, when asked about the basis of her race discrimination claims as related to these acts, Plaintiff admitted that during her tenure, she requested resources from Black and White administrators at the schools and from the central office but often did not receive them. SUMF 48. Conversely, she has not shown that similarly situated teachers requested and received the same type of resources despite them not being provided to her. While Plaintiff indicates that she knew one particular teacher who had a specific type of training that she was denied, she did not know whether this teacher was the only one who received the training or whether she didn’t receive the training due to her race. SUMF No. 49. As such, Plaintiff cannot show that she was treated different than this teacher because of her race and has not shown, through statistical evidence, that employees of other races were treated better than she was because of her race. At deposition, Plaintiff admitted that she did not know how her program was funded, so she cannot demonstrate that the denial of resources to her was race based. SUMF No. 30. Rather, Plaintiff simply testified that she saw the patterns of treatment with different teachers through the autism cluster program when they attended meetings, but she could not identify the schools or teachers. SUMF No. 19. Additionally, Plaintiff did not know the IEPs of the White Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 21 of 33 22 teachers so she could not speak to whether or not the resources they received matched with what their IEP needs were. SUMF No. 20. All she knew was what she saw from the meetings that took place, and the conversations she had with minority teachers, the other African-American teachers, during the meetings. SUMF No. 21. These facts alone are insufficient to support a finding of race discrimination, and these claims should fail as a matter of law. Similarly, with respect to her performance reviews, including but not limited to her June 13, 2012, poor performance review (also not adverse actions), Plaintiff could only state that the reviews were inconsistent with two other evaluations provided by the Special Education Master Educators at the Central District Office. SUMF No. 32. This testimony is simply insufficient to establish a prima facie case of race discrimination. As to the written reprimands, again, Plaintiff acknowledged that she did not know what influenced them, “she just knew that it happened.” SUMF No. 34. As such, she has provided no support that these claimed “adverse actions” were race based. With respect to Plaintiff’s transfer from McKinley to Shaw on September 2, 2011, the record is devoid that the transfer occurred because of her race. Because Plaintiff has presented no proof that her transfer on September 2, 2011, was raced based, judgment should be entered in favor of the District for this transfer. It is unclear whether Plaintiff seeks to proceed against the District under a theory of race discrimination for suspensions, discipline, loss of pay, the August 2013 termination or the job withdrawal as these claims were not properly pled as race based claims. See Amended Compl., generally. For that reason alone, Plaintiff should not be allowed to proceed on these claims under a theory of race discrimination. Plaintiff has not shown that race played any role in her termination or the job withdrawal or for any other action taken against her. While Mr. Guillame Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 22 of 33 23 Gendre and Ms. Sara Dykstra (both White) reported the potential fraud committed by Plaintiff, Plaintiff has not shown that either of them influenced the outcome of the investigation. They merely reported Plaintiff’s finalization of the IEP as possible fraud and were witnesses who were questioned during the investigation. They did not conduct the investigation, nor were they a member of the board that made the ultimate decision to terminate Plaintiff. Rather, Ms. Erin Pitts, Director of Labor Management and Employee Relations at DCPS, along with Anna Gregory, the chief of staff of the Office of Human Capital, and Schwanda Barnette, a specialist in the Office of Human Capital, were on the review board that made the ultimate decision to terminate Plaintiff. SUMF No. 41. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (noting that the "critical inquiry" is whether discrimination "was a factor in the employment decision at the moment it was made") (emphasis in original); Reeves v. Sanderson Plumbing Prods Inc., 530 U.S. 133, 143 (2000) (explaining that the plaintiff at all times has the ultimate burden of persuading the fact finder that the defendant engaged in intentional discrimination). On this record, there is no evidence of the race of any of the persons on the committee or that race influenced their decision to terminate Plaintiff. Nor is there evidence in the record showing that Ms. Pitts’ decision to suspend Plaintiff was based on race. The mere reporting of potential misconduct by supervisors of another race is insufficient to demonstrate race discrimination, particularly since there is no evidence that either of Plaintiff’s supervisors’ made a determination that an investigation would ensue based on the reporting or that either influenced the outcome of the investigation or the decision to terminate her. Moreover, even if the suspensions or finding of fraud was in error, no evidence exists to show race discrimination or retaliation. See Jones v. Septa, C.A. No. 12-6582, 2014 WL 3887747, at *10–11 (E.D. Pa. August 7, 2014)(finding mere fact that employer incorrectly found Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 23 of 33 24 an employee guilty of misconduct is insufficient to prove retaliation). Absent a showing that the District failed to terminate similarly situated employees of another race in the face of similar circumstances, but terminated Plaintiff, no jury can infer that the termination was raced based. Accordingly, judgment should be entered in the District’s favor as to Plaintiff’s race discrimination/retaliation claim filed under Title VII. C. Judgment Should Be Entered in the District’s Favor on Plaintiff’s DC WPA Claims. 1. Plaintiff’s Claimed Protected Disclosure Are Not Governed by the DC WPA. Plaintiff has failed to provide sufficient evidence to show that she disclosed information governed by the DC WPA for which she sustained adverse actions. As noted previously, a “protected disclosure” under the DC WPA is defined as “a disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or public body that the employee reasonably believes evidences gross mismanagement; gross misuse or waste of public resources or funds; abuse of authority in connection with the administration of a public program or the execution of a public contract, a violation of a federal, state or local law, rule or regulation … which is not merely of a technical or minimal nature; or a substantial and specific danger to public health and safety.” D.C. Code § 1-615.52(a)(6) (2001). Plaintiff has not shown that her “disclosures” fit within any factor governed by the DC WPA. To the extent Plaintiff claims that her disclosures constitute “gross mismanagement” or “abuse of authority,” they do not. While the DC WPA does not define gross mismanagement, the comparable federal Whistleblower Act, 5 U.S.C. § 2302(b)(8) (1996), sets “gross mismanagement” as a high standard.4 Under the federal Act, as interpreted, gross mismanagement: 4 Where federal and local statutes employ a similar language and purpose, case law interpreting the federal statute is persuasive authority in interpreting the local statute. Crane v. Crane, 657 A.2d 213, 316 n. 4 (D.C. 1995). Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 24 of 33 25 does not include management decisions which are merely debatable, nor does it mean action or inaction which constitutes simple negligence or wrongdoing. There must be an element of blatancy. Gross mismanagement means a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.5 Carolyn v. Department of Interior, 63 M.S.P.R. 684, *12 (M.S.P.B. 1994) (quoting Sazinski v. Department of Housing and Urban Development, 73 M.S.P.R. 682, *7-9 (M.S.P.B. 1997) (concluding that three disclosures the appellant claims were whistleblowing were not protected under 5 U.S.C. § 2302(b)(8)). In Carolyn, the court reasoned that the federal Whistleblower Protection Act was designed to reach management decisions that go beyond simple negligence or wrongdoing, and far beyond the personal disagreements of an employee with her manager’s supervision. Carolyn, supra at 12. Therefore, a disclosure simply questioning management decisions that are “merely debatable” or just “simple negligence or wrongdoing,” with no “element of blatancy,” is not protected as a disclosure of “gross mismanagement.” Carolyn, 63 M.S.P.R. at 691, rev. dism’d, 43 F.3d 1485 (Fed. Cir. 1994). Thus, the proper inquiry when determining whether disclosures are protected by the DC WPA is whether “a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [could] reasonably conclude that the actions of the government evidence gross mismanagement?” See Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) (holding that the standard is an objective one). Moreover, “[d]iscussion and even disagreement with supervisors over job-related activities is a normal part of most Further, “courts have held that case law applying the federal whistleblower statute is instructive in interpreting similar state statutes. Crawford v. District of Columbia, 891 A.2d 216, 221 (D.C. 2006). 5 The Act’s legislative history explains Congress’s reasoning for changing the term to “gross mismanagement” as follows: “[w]hile the Committee is concerned about improving the protection of whistleblowers, it is also concerned about the exhaustive administrative and judicial remedies…that could be used by employees who have made “disclosures” of trivial matters. Civil Service Reform Act specifically established a de minimis standard for disclosures affecting the waste of funds by defining such disclosures as protected only if they involved “a gross waste of funds.” Crews v. Dep’t of the Army, 1999 U.S. App. LEXIS 25103, *6 (Fed. Cir. 1999). Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 25 of 33 26 occupations.” Willis v. Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998). Thus, disclosures made in the course of normal job duties are not protected. Id. at 1144. As to any claim that a disclosure constitutes “abuse of authority,” Plaintiff cannot meet her burden, as she has not presented evidence showing any abuse of authority. The U.S. District Court in Oregon has interpreted the “abuse of authority” standard under the Oregon Whistleblower Protection Act, which has substantially similar language to the DC WPA, and defines “abuse of authority” as “to deliberately exceed or make improper use of delegated or inherent authority or to employ it in an illegal manner.” See Baynton v. Wyatt, 2007 U.S. Dist. LEXIS 18521, 28-29 (D. Or. 2007). Where the purported disclosures are made in the special education context, this Court has indicated that merely failing to provide the “free appropriate public education” mandated by IDEA does not rise above the level of simple negligence or wrongdoing. See Alston (describing failure to provide “free appropriate public education” as insufficient to demonstrate “bad faith or gross misjudgment” for purposes of retaliation under Rehabilitation Act). a) Plaintiff’s Complaints At McKinley Plaintiff contends that she lodged complaints at McKinley about the school’s alleged failure to provide special education students with services or accommodations required by IEPs, inappropriate class sizes, inappropriate groupings of students, a lack of necessary textbooks and classroom materials, insufficient training, and inadequate working conditions. SUMF No. 15. Viewing Plaintiff’s allegations in the light most favorable to her, Plaintiff complained that the resources and teaching environment for special education students at McKinley fell below the IDEA standard. For the following reasons, judgment should be entered in favor of the District: First, Plaintiff has not pled or otherwise shown that any failures were willful or done in bad faith Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 26 of 33 27 whether reported or not. Rather, at deposition, Plaintiff testified that the school was violating the IDEA because students with disabilities should be treated the same way as their nondisabled peers, so she wanted appropriate classroom space and resources to effectively teach the students as those things would have been ideal for students without disabilities. SUMF No. 5. While Plaintiff may argue otherwise, her complaints were specific to her classroom, as she believed all the other special education disciplines at McKinley were adequately resourced and she observed resources coming in but never saw the resources make it to the autism department. SUMF No. 4. Thus, Plaintiff’s complaints were merely contentions that the District was negligent in failing to provide all the necessary resources to children in the autism department. As is made clear by the Carolyn Court, “simple negligence or wrongdoing” with no “element of blatancy” does not rise to the level of protected activity; in this case, under the DC WPA. Even if these complaints were “protected disclosures,” David Pinder, McKinley’s Principal, testified at deposition that in response to Plaintiff’s complaints, he contacted the Operations Director or Business Manager and told them that the special education students should be given whatever they need. SUMF at 7. He also testified that he told the Operations Director that the special education department should have access to the same resources as all other departments in the school. SUMF No. 8. Given Mr. Pinder’s undisputed reported actions after hearing Plaintiff’s complaints, no reasonable juror can find that his actions evidenced the “bad faith” or “gross mismanagement” which are necessary to support a finding of liability under the DC WPA. Second, Plaintiff also complained about not getting to take part in certain training programs in which she requested she be allowed to participate. SUMF No. 6. While she could not specify all trainings she requested which she was not allowed to take, her requests included Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 27 of 33 28 training about DCPS’s impact rubric. SUMF No. 6. Plaintiff has not shown that the failure to provide this training to her rose to the level of gross mismanagement or abuse of authority. For that reason, she cannot prevail against the District under the DC WPA. Third, none of Plaintiff’s complaints she claims she made during the period while at McKinley represent disclosures concerning management decisions that go beyond, at worst, simple negligence or wrongdoing such that a reasonable fact finder could find that Plaintiff made disclosures triggering DC WPA protection. Carolyn, supra at 12. Rather, she complained about her own perception that the McKinley decision-makers and DCPS central office were not utilizing the available resources in a way that Plaintiff believed met the requirements of the IDEA. SUMF No. 4. Accordingly, judgment should be entered in favor of the District as related to Plaintiff’s claimed protected disclosures while at McKinley. b. Plaintiff’s Complaints At Shaw. Plaintiff contends that she lodged complaints during her tenure at Shaw. Plaintiff’s complaints at Shaw also concerned DCPS’s alleged failure to provide adequate teaching resources, inappropriate class sizes, inappropriate student groupings, insufficient training, and inadequate working conditions. SUMF No. 15. She further contends that she made a protected disclosure by joining a grievance with several other Shaw teachers concerning various other concerns, such as school safety and proper discipline for students. SUMF No. 17. However, for the same reasons Plaintiff’s alleged complaints at McKinley do not constitute protected disclosures for DC WPA purposes, neither do Plaintiff’s identical complaints made at Shaw. The disclosures constituted, at most, complaints about simple negligence or wrongdoing, and/or a debate with her supervisors as to what resources were required and whether she had sufficient resources. No reasonable fact finder could find that the disclosures Plaintiff made while at Shaw Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 28 of 33 29 rises to the levels described in the DC WPA. Thus, the District is entitled to summary judgment as to Plaintiff’s DC WPA claims concerning her tenure at Shaw, as she cannot show she made any protected disclosures as defined under the DC WPA. Moreover, the already public nature of the alleged disclosures makes clear that they are not protected disclosures under the DC WPA. A “protected disclosure” must in fact disclose some otherwise unknown information. See Wilburn v. District of Columbia, 957 A.2d 921, 925– 26 (D.C. 2008) (citing Meuwissen v. Department of the Interior, 234 F.3d 9, 13 (Fed. Cir. 2000), for the proposition that “’[a] disclosure of information that is publicly known is not a disclosure under the WPA,’ whose purpose ‘is to protect employees who possess knowledge of wrongdoing that is concealed … and who step forward to help uncover and disclose that information”). See also Clarke v. Multnomah County, No. CV-06-229-HU, 2007 WL 915175, **16-17 (D. Or. Mar. 23, 2007), which found no protected disclosure under Oregon whistleblower statute substantially similar to DC WPA because “any of the communications for which plaintiff says she was retaliated against related to topics or issues already known to either the persons she reported to, or at least to other supervisory persons within the County”). Id. Here, Plaintiff has not alleged any disclosures that would have revealed otherwise- concealed information. It was well known prior to Plaintiff’s alleged disclosures that McKinley and Shaw had budgetary restraints and often could not provide its teachers, including its special education teachers, adequate teaching materials and resources. SUMF No. 28. Accordingly, Plaintiff’s alleged complaints to the school about the lack of resources were not protected by the DC WPA, and her DC WPA claims fail as a matter of law. Finally, not only has Plaintiff failed to show that she made protected disclosures as defined by the DC WPA, but that because of these disclosures, she was retaliated against. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 29 of 33 30 Where it is clear that a plaintiff cannot present evidence sufficient to justify an inference of retaliation, even after Brady, it is still appropriate to reject the claim based on the failure to establish a prima facie case. See Brady v. Office of the Sgt. at Arms, 520 F.3d 490 (D.C. Cir. 2008); see also Von Muhlenbrock v. Billington, 2008 WL 4381542, at *4 (D.D.C. Sept. 29, 2008); Williams v. Dodaro, 2008 WL 4228363, at *11 (D.D.C. Sept. 17, 2008). While Plaintiff contends that during most of her tenure she requested resources that she often did not receive, she does not show that because she engaged in protected activity she was not provided with the requested resources. SUMF No. 29. In fact, Plaintiff testified at deposition that she does not know the amount of the budget for the autism program, nor did she know whether only one teacher received the training that she was allegedly denied, or why. SUMF No. 30. Nor did she know about the IEPs of the White teachers, so she could not address whether or not the resources they received matched with what their IEP needs were. SUMF No. 20. When asked why she received the written reprimand about which she complained, Plaintiff testified she didn’t know why she received a written reprimand. SUMF No. 34. On this record, judgment should be entered in favor of the District because Plaintiff has failed to establish any causal connection between her participation in protected activity and any adverse action taken against her while at McKinley or Shaw. See Novella v. Wal-Mart Stores, Inc., 2007 U.S. App. LEXIS 6446, *6 (11th Cir. 2007), citing Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Nor can Plaintiff establish temporal proximity. The temporal proximity between the purported statutorily protected activity and the adverse action must be ‘very close’ to establish a causal connection between the two events.” Fox v. Giaccia, et al., 2006 U.S. Dist. LEXIS 17051 (D.D.C. 2006)(quoting Hammond v. Chao, 383 F. Supp.2d 47, 59 (D.D.C. 2005). “Courts generally have accepted [as a causally sufficient] time [,] periods of a few days to up to a few Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 30 of 33 31 months and seldom have accepted time lapses of a year in length.” Id.; see also Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 273 (2001) (An adverse employment action that occurs even three or four months after a protected activity often is not close enough to suggest a causal connection); Devera v. Adams, 874 F. Supp. 17, 21, (D.D.C. 1995) (“an eight month interval between the two events is not strongly suggestive a causal link”); Garret v. Lujan, 799 F. Supp. 198, 202 (D.D.C. 1992) (almost a year “between plaintiff’s EEO activity and the adverse employment decision is too great [a length of time] to support an inference of reprisal”). Here, while Plaintiff claims she consistently made protected disclosures during her tenure at McKinley and Shaw, she provides no specific dates of when these disclosures were made. Where courts have held that even a three or four month period after protected activity is not close enough to suggest a causal connection, surely a complete lack of evidence on this issue cannot proceed to a jury. See Devera, supra. Even viewing the evidence in the light most favorable to Plaintiff, no reasonable jury could conclude that Plaintiff’s alleged protected disclosures were made in proximity to any alleged employment action, particularly given the fact that Plaintiff allegedly began making protected disclosures in 2005 yet was not terminated until 2013. As such, Plaintiff’s whistleblower claim fails as a matter of law and summary judgment should be granted in favor of the District. 2. The District Would Have Taken the Same Action As Related to Plaintiff Notwithstanding Plaintiff’s Purported Disclosures Under the DC WPA. As it relates solely to Plaintiff’s claims under the DC WPA, the District can demonstrate by clear and convincing evidence that it would have taken the same personnel action in the absence of the purported disclosures. Here, as has already been established, Plaintiff’s transfer from McKinley to Shaw was based on the elimination of the Autism Program at Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 31 of 33 32 McKinley and the need at Shaw for a special education teacher. See Discussion at I.B. Additionally, Plaintiff’s termination was the result of a finding that she was dishonest and submitted a fraudulent IEP. SUMF No. 40. See also Zirkle, 830 A.2d at 1258. Therefore, whether or not Plaintiff had made protected disclosures, she would have still been transferred to Shaw because the District needed her there, and still would have been terminated based on the findings of the independent investigation into allegations that she submitted a fraudulent IEP. Nor would Plaintiff have been able to begin work at Ludlow Taylor Elementary School because of the fraud finding made against her. On this record, the Court should grant judgment to the District as the District would have taken the same action anyway notwithstanding Plaintiff’s purported protected disclosures. D. Plaintiff Is Not Entitled To Equitable Relief. In her complaint, Plaintiff seeks equitable relief. See Amend. Compl., generally. On this record, Plaintiff is not entitled to equitable relief because she cannot proceed on any claim in her amended complaint against the District. Nor has she shown any entitlement to equitable relief. Therefore, for the reasons stated in this motion on Plaintiff’s claims of race discrimination, retaliation and whistleblower act violations, judgment should be entered in the District’s favor on this claim. CONCLUSION For the reasons stated herein, the District submits that it should be granted summary on all claims asserted in the Amended Complaint. Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 32 of 33 33 Respectfully Submitted, KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General, Civil Litigation Division /s/ Patricia A. Oxendine ___________________ PATRICIA A. OXENDINE D.C. Bar No. 428132 Chief, Civil Litigation Division, Section I /s/ Kerslyn D. Featherstone _______________ KERSLYN D. FEATHERSTONE D.C. Bar No. 478758 CHARLES J. COUGHLIN D.C. Bar No. 1016993 Assistant Attorneys General Office of the Attorney General 441 Fourth Street, N.W., Suite 630 South Washington, D.C. 20001 Phone: (202) 724-6600; (202) 724-6608; (202) 727- 6295 Fax: (202) 715-8924; (202) 730-1887 Email: kerslyn.featherstone@dc.gov; charles.coughlin@dc.gov Counsel for Defendants Case 1:15-cv-00055-CKK Document 54-3 Filed 10/28/16 Page 33 of 33 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SHAVON T. WALKER, : : Plaintiff, : : v. : Case No. 1:15-cv-00055-CKK-GMH : DISTRICT OF COLUMBIA, : : Defendant. : : DEFENDANT DISTRICT OF COLUMBIA’S STATEMENT OF MATERIAL FACTS FOR WHICH THERE ARE NO GENUINE DISPUTES Defendant District of Columbia (the District), by and through counsel, and pursuant to Fed. R. Civ. P. 56(c)(3), and Local Civil Rule 7(h)(2), submits this statement of material facts for which there are no genuine disputes, and states as follows: 1. Plaintiff began her employment as a Special Education teacher at McKinley Technical High School (McKinley) in 2005. See Exhibit 1, Pl’s Dep. at 9:1-10 & 11:6-8. 2. At McKinley, Plaintiff was the special education teacher to high functioning autistic students. Id.at 13:16-17:14. 3. Plaintiff was written upon on November 23, 2010, by Mr. David Pinder. Id. at 16:9-17 and 60:4-22; see also, Exhibit 2, Amended Charge of Discrimination 4. Plaintiff contends that she lodged complaints at McKinley about the school’s alleged failure to provide special education students with services or accommodations required by IEPs, which she claims fell below the IDEA standard. See Exhibit 1, Pl’s Dep. 102:12-104:3. 5. Plaintiff contends that she lodged complaints at McKinley about the school’s alleged inappropriate class sizes, inappropriate groupings of students, a lack of necessary Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 1 of 10 2 textbooks and classroom materials, and inadequate working conditions. See Exhibit 1, Pl’s Dep. 16:9-17, 45:12-18 & 89:13-90:2; see also Exhibit 2, Amended Charge of Discrimination. 6. Plaintiff also complained about not getting to take part in certain training programs in which she requested she be allowed to participate, which included requests for training about DCPS’s impact rubric. See Exhibit 1, Pl’s Dep. 55:19-56:4. 7. David Pinder, McKinley’s principle, testified at deposition that in response to Plaintiff’s complaints, he contacted the Operations Director or Business Manager and told them that the special education students should be given whatever they need. See Exhibit 3, Pinder Dep. 41:21-42:5. 8. He also testified that he told the Operations Director that the special education department should have access to the same resources as all other departments in the school. Id. at 42:6-11. 9. At the end of the 2010-2011 school year, it was determined that these students would be assimilated into the general education classes. Id. at 68:3-20. 10. On or about September 2, 2011, Plaintiff was transferred to Shaw-Garnett Patterson Middle School (Shaw), as a continuing special education teacher. See Exhibit 1, Pl’s Dep. 14:3-7 & 15:13-18. 11. Plaintiff admits “she was told that they needed additional support at Shaw Middle School. They needed to reallocate funds at the time, they didn’t have a special education teacher who could oversee … students with … an intellectual disability at Shaw Middle School and so they needed someone to cover the classroom.” Id. at 44:4-11. 12. Upon her transfer to Shaw, she ended up taking extra kids from another autism class who were not supposed to be in that class. Id. at 93:16-21. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 2 of 10 3 13. Plaintiff worked with intellectual disabled students at Shaw. Id. at 94:20-95:2. 14. Plaintiff alleges that before and even after her transfer to Shaw, she continued to raise complaints about the lack of resources available to implement the necessary requirements of her special education student’s Individualized Education Plan (IEP) into the following school year. Id. at 45:12-18 & 102:12-104:5. 15. Plaintiff’s complaints at Shaw also concerned DCPS’s alleged failure to provide adequate teaching resources, inappropriate class sizes, inappropriate student groupings, insufficient training, and inadequate working conditions. Id. at 16:9-17; see also Exhibit 2, Amended Charge of Discrimination. 16. Plaintiff also complains about having to teach her class in a room that had previously been designated as a girl’s locker room that still was labeled as such. See Exhibit 1, Pl’s Dep. 65:21-66:16. 17. She further contends that she made a protected disclosure by joining a grievance with several other Shaw teachers concerning various other concerns, such as school safety and proper discipline for students. Id. at 126:1-127:2. 18. Plaintiff did not know how her program was funded. Id. at 29:16-18. 19. Plaintiff saw the patterns of treatment with different teachers through the autism cluster program when they attended meetings, but she could not identify the schools or teachers. Id. at 32:2-6. 20. Plaintiff did not know the IEPs of the White teachers. Id. at 43:8-20. 21. All she knew was what she saw from the meetings that took place, and the conversations she had with minority teachers, the other African-American teachers, during the meetings. Id. at 43:8-20. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 3 of 10 4 22. Plaintiff claims her complaints constituted a protected activity because the complaints related to DCPS school administrators’ violations under the Individuals with Disabilities in Education Act (IDEA). Pl’s Dep. 76:2-17. 23. Plaintiff claimed she was denied resources including “certain assistive technology devices,” a white board and textbooks that she needed to teach her students. Pl’s Dep. 66:13-16; 104:9-20; and 115:5-7. 24. The IEPs were plans developed for an individual student based on his determined or qualified educational disability. Id. at 37:3-38:6. 25. During deposition, Plaintiff testified that “[she] knew [she] would be held accountable for things that [she] may not have been able to do despite not having the resources or support, and [she] just wanted to make sure that was clear….” Id. at103:21-104:3. 26. When asked what type of things, Plaintiff simply said “resources.” Id. at.104 27 Plaintiff further explained that she would tell administrators that “these IEPs are saying X, Y and Z or there’s an attorney involved, what are we going to do to best meet the student’s needs or this kid’s IEP says that, … they’re supposed to have access to, you know, certain assistive technology devices. I don’t have that tin my classroom, are you going to order that for me?” Id. at 104:10-20. 28. It was well known prior to Plaintiff’s alleged disclosures that McKinley and Shaw had budgetary restraints and often could not provide its teachers, including its special education teachers, adequate teaching materials and resources. Id. at 77:2-17 29. Plaintiff acknowledges that throughout her tenure she requested resources that she often did not receive. Id. at 29:19-32:1. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 4 of 10 5 30. And that she does not know the amount of the budget for the autism program, nor does she know whether only one teacher received the training that she was allegedly denied. Id. at 121:12-123:6 & see also, Exhibit 4, Pl’s 2nd Dep. 53:2-12. 31. As part of Plaintiff’s duties as a special education teacher, Plaintiff was charged with developing, along with a team, each of her students IEPs to be implemented during the period. See Exhibit 1, Pl’s Dep. 37:3-38:6. 32. Plaintiff received performance reviews, including a poor performance review in June 13, 2012, which she could only state were inconsistent with two other evaluations provided by the Special Education Master Educators at the Central District Office. Id. 16:9-17; see also, Exhibit 2, Amended Charge of Discrimination. 33. Plaintiff received written reprimands. See Exhibit 1, Pl’s Dep. 16:9-17; see also Exhibit 2, Amended Charge of Discrimination. 34. Plaintiff did not know what influenced the written reprimands, and “she just knew that it happened.” Id. 35. During the 2012-2013 school year, Plaintiff was alleged to have fraudulently completed an IEP for a student and submitted it as a finalized document in EasyIEP; the IEP management system. See Exhibit 1, Pl’s Dep. 145:11-16 & see also, Exhibit 5, Pl’s Ans. to Interr. No. 4. 36. Shaw’s Assistant Principal, Sara Dykstra, and Principal, Guillame Gendre, reported what they perceived to be Plaintiff’s fraudulent actions to the Labor Management and Employee Relations Division (LMER) of DCPS. See Exhibit 6, Guillaume Dep. 51:12-52:1 & Guillaume Email dated February 4, 2013. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 5 of 10 6 37. An investigation was initiated into the complaints about Plaintiff’s fraudulent activity. See Exhibit 1, Pl’s Dep. 152:18-153:1 38. Around the same time of the pending investigation, it was determined that Shaw would be closing at the end of the 2012-2013 school year and all teachers and employees would need to secure new employment. See Exhibit 1, Pl’s Dep. 177 3-9 & see also, Exhibit 5, Pl’s Ans. to Interr. No. 10. 39. Plaintiff avers that she successfully secured employment with Ludlow-Taylor Elementary School. See Exhibit 1, Pl’s Dep. 177 3-9 & Exhibit 5, Pl’s Ans. to Interr. No. 10. 40. However, before Plaintiff began employment with Ludlow-Taylor, the investigation was completed and a determination was made that Plaintiff had committed the fraud as alleged. See Exhibit 1, Pl’s Dep. 152:18-153:1 & 177:13-18. 41. A review board, led by Ms. Erin Pitts (African-American), Director of Labor Management and Employee Relations at DCPS, met and determined that the appropriate adverse actions to be given to Plaintiff was termination from her position with DCPS. See Exhibit 7, Pitts March 8, 2016 Dep. 22:3-10, 71:20-72:3 & 73:10-19. 42. Plaintiff was terminated from her position with DCPS on August 8, 2013, effective August 31, 2013. See Exhibit 5, Pl’s Ans. to Interr. No. 4, Exhibit 1, Pl’s Dep. 16:9-17; and Exhibit 2, Amended Charge of Discrimination. 43. Through her union, Plaintiff filed a grievance about her termination and that matter is currently pending before the Office of Employee Appeals. See Exhibit 1, Pl’s Dep. 178:1-5 & Pl’s Ans. to Interr. No. 4. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 6 of 10 7 44. On or about June 19, 2012, Plaintiff filed a Charge of Discrimination (Charge) with the Equal Employment Opportunity Commission (EEOC). See Exhibit 4, Pl’s 2nd Dep. 7:6-21 & Exhibit 8, Charge of Discrimination. 45. In that Charge, Plaintiff identifies the following actions taken against her during the period of November 17, 2010 through June 13, 2012: a. On September 2, 2011, she was involuntarily transferred to Shaw Middle School as a Special Education Teacher-Autism. Id. b. On November 17, 2010, Colleen Koval, the Special Education Autism Program Manager (PM) for DC Public Schools (White), told her in a staff meeting, in front of her peers, that she was going to be written up. Id. c. On November 23, 2010, Plaintiff received a written reprimand. Id. d. In August 2011, she was denied her request for school resources she needed. Id. e. On April 10, 2012, she was placed on an unwarranted leave restriction. Id. f. On April 25, 2012, she was given a letter of reprimand. Id. g. On or about June 13, 2012, she was given a poor performance review which was inconsistent with two other evaluations provided by the Special Education Master Educators at the Central District Office. Id. 46. On or about May 16, 2014, Plaintiff’s amended EEOC Charge of Discrimination. See Exhibit 1, Pl’s Dep. 16:9-17; see also Exhibit 2, Amended Charge of Discrimination. 47. Within that Charge, Plaintiff identifies the dates October 2012, through December 2012, and lists what she indicates are additional acts of racial discrimination: Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 7 of 10 8 a. “[I]nequitable distribution of workloads, resources, and access to professional development opportunities among the races.” Id. b. During the period February 2013 through August 2013, she participated in an unexpected investigation regarding a fraudulent IEP, and that the documentation regarding the investigation became part of her personnel file. Id. c. She received a low performance evaluation score because of the lack of direction provided to her on future tasks. Id. Additional acts of retaliation are identified as follows: d. In April 2013, she was suspended with no pay re: “negligence and dereliction of duties.” Id. e. In April & May 2013, she was not paid for all medical leave taken despite providing medical notes. Id. f. In July 2013, she received a letter stating that her overall performance evaluation for the entire school year is not within an acceptable range to receive a pay increase. Id. g. In January 2014, her administrative appeal to the Chancellor regarding her performance evaluation scores was denied. Id. h. In March 2013, she was suspended for three days. Id. i. The IMPACT process was violated when her performance was not properly rated. Id. j. On August 8, 2013, she was notified that her employment was terminated. Id. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 8 of 10 9 48. Plaintiff also claims that she was not hired at Ludlow-Taylor Elementary School as retaliation. See Exhibit 1, Pl’s Dep. 176:13-18 & Exhibit 5, Pl’s Ans. to Interr. No. 10. 49. Plaintiff’s claim that in August 2013, the District withdrew its offer to her to work at Ludlow-Elementary school is also not actionable since it is not set forth in the May 16, 2014, Charge,1 and therefore she failed to exhaust her administrative remedies relating to this claim. Id. 50. During deposition, Plaintiff testified that “[she] knew [she] would be held accountable for things that [she] may not have been able to do despite not having the resources or support, and [she] just wanted to make sure that was clear….” See Exhibit 1, Pl.’s Dep at 103:21-1043. 51. At deposition, when asked what type of resources did the high school autistic children need through her program that she was working with, Plaintiff testified that “[t]hey would have needed social, emotional, skills program, anything dealing with transitioning from high school to college. So materials on post secondary ed, employment, independent living…general life skills.” Id. at 28:3-10. 52. When asked were the services being provided at other schools, Plaintiff testified that “[she couldn’t] speak to that because [she] wasn’t at those schools.” Id. at 28:11-14. 53. Plaintiff admitted that she did not know what other people requested or received at other schools. Id. at 28:5-22. 54. Plaintiff acknowledged that DCPS had the ability to transfer a teacher to another location based upon allocation, reallocation of resources. Id. at 34:1-9. 55. Plaintiff’s transfer to Shaw did not affect her licensing. Id. at 35:7-15. 1 This claim would not have been asserted in the June 19, 2012, since the event date allegedly occurred after the charge was filed. Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 9 of 10 10 56. Plaintiff admitted that she received a low evaluation from Ms. Samantha Bright (African American) that she believed was unjustifiable, but she did not believe that was because of her race. Id. at 53:20-54-12. Respectfully Submitted, KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General, Civil Litigation Division /s/ Patricia A. Oxendine ___________________ PATRICIA A. OXENDINE D.C. Bar No. 428132 Chief, Civil Litigation Division, Section I /s/ Kerslyn D. Featherstone ______________ KERSLYN D. FEATHERSTONE D.C. Bar No. 478758 CHARLES J. COUGHLIN D.C. Bar No. 1016993 Assistant Attorneys General Office of the Attorney General 441 Fourth Street, N.W., Suite 630 South Washington, D.C. 20001 Phone: (202) 724-6600; (202) 724-6608; (202) 727- 6295 Fax: (202) 715-8924; (202) 730-1887 Email: kerslyn.featherstone@dc.gov; charles.coughlin@dc.gov Counsel for Defendants Case 1:15-cv-00055-CKK Document 54-4 Filed 10/28/16 Page 10 of 10 EXHIBIT 1 Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 1 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 -------------------------: SHAVON WALKER, : 4 : Plaintiff, : 5 : vs. :CIVIL ACTION NO. 6 :15-0055 (CKK)(GMH) DISTRICT OF COLUMBIA, : 7 : Defendant. : 8 -------------------------: 9 Washington, D.C. 10 Tuesday, December 22, 2015 11 Deposition of: 12 SHAVON T. WALKER 13 called for oral examination by counsel for 14 Defendant, pursuant to notice, at the Office 15 of the Attorney General, 441 4th Street, N.W., 16 6th Floor, Washington, D.C., before Sheri C. 17 Stewart, RMR, of Olender Reporting, a Notary 18 Public in and for the District of Columbia, 19 beginning at 9:58 a.m., when were present on 20 behalf of the respective parties: 21 Job No. 34194 22 Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 2 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 4 1 P R O C E E D I N G S 2 WHEREUPON, 3 SHAVON T. WALKER 4 called as a witness, and having been first duly 5 sworn, was examined and testified as follows: 6 EXAMINATION BY COUNSEL FOR DEFENDANT 7 BY MS. FEATHERSTONE: 8 Q Good morning, Ms. Walker. 9 A Good morning. 10 Q Again, my name is Kerslyn Featherstone 11 and I'm representing the District of Columbia in 12 the lawsuit that you filed and I'll be taking your 13 deposition today. Have you ever had a deposition 14 taken before? 15 A No. 16 Q Okay. So I'll just kind of go over a 17 few of the rules. I'll ask you a series of 18 questions and you can answer to the best of your 19 ability. If there's a question that I ask you and 20 you don't understand it, please ask me to rephrase 21 it, repeat it or whatever needs to be done to 22 ensure that you understand the question, okay? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 3 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 9 1 Q Okay. And in that complaint you allege 2 certain claims against the District of Columbia. 3 I'm going to go over your allegations in your 4 complaint with you. 5 Let's start with your employment 6 with the District of Columbia. When did you first 7 become employed with the District of Columbia? 8 A Oh, August 2005. 9 Q And what were you employed as? 10 A Special education teacher. 11 Q Can you describe for me, what is a 12 special education teacher? 13 A It's a person who educates students with 14 varying disabilities according to their 15 individualized education plan or IEP. 16 Q Is every student that's on an IEP 17 considered a special education student? 18 A According to, yes, DCPS, yes. 19 Q Would that include kids that, that are, 20 say, for speech and language? 21 A Speech and language, yes. 22 Q That's a special education student? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 4 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 11 1 still in the program and -- 2 A I was able to because I completed enough 3 of the prerequisites. I just had, I think, one 4 class and the final exam to take but I was 5 eligible to still start. 6 Q And what school did you begin your, your 7 tenure with D.C. public schools? 8 A McKinley Technology Senior High School. 9 Q When you started in 2005 as a special 10 education teacher at McKinley Tech were there any 11 other special education teachers there? 12 A 2005? Yes. 13 Q How many? 14 A I can't recall at this present time. I 15 was, so can I -- let me just explain. I was the 16 person who oversaw the autism program, exclusively 17 the autism program. Any student who had a 18 disability who did not have autism were seen by 19 another special education teacher so that person 20 changed over the course, you know, over the years. 21 Q So there was one autism -- 22 A There was at least -- Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 5 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 13 1 A At the time the District was looking to, 2 with the rise of autism since 2005, they were 3 looking to provide a specialized service for this 4 population of students and I was the first person 5 to oversee the high school program in the District 6 of Columbia so they wanted, they saw that there 7 was a different type of need for this population 8 of students and they wanted to cater and design a 9 program for that reason. 10 Q At the time that you were hired in 2005 11 are you aware whether there were any other schools 12 that had a special education teacher solely, 13 solely responsible for the autistic students other 14 than McKinley Tech? 15 A Yes, there were other schools, yes. 16 Q So all of the autistic children that 17 were in high school in the District of Columbia 18 did not come to McKinley Tech? 19 A No. The students that I serviced were 20 the only students in the District that were high 21 functioning. Asperger's syndrome, their IQs were 22 at or above normal. All the students who didn't Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 6 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 14 1 meet the criteria were placed in other schools 2 throughout the district. 3 Q And how long did you stay at McKinley 4 Tech? 5 A Until the year that I was transferred to 6 Shaw. 2012, 2013, Shaw; 2011, 2012, Shaw, so it 7 was 2011, I think. 8 Q Okay. I'm going to show you Exhibits 1 9 and 2 which are copies of your charges of 10 discrimination. 11 A Okay. 12 (Whereupon, Exhibit Nos. 1 & 2 were 13 marked for identification.) 14 BY MS. FEATHERSTONE: 15 Q I want to first show you what's been 16 marked as Exhibit No. 1. Do you recognize that 17 document? 18 A Yes. 19 Q What is it? 20 A It's the charge of discrimination 21 complaint that was filed with EEOC. 22 Q On what date? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 7 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 15 1 A Oh, June 19th, 2012. 2 Q Okay. Is that your signature at the 3 bottom? 4 A Yes. 5 Q Okay. Is it a two-page document? 6 A Is it a two page? Yes. 7 Q Okay. Looking at this document, will it 8 help you refresh your memory as to how long you 9 worked at Shaw, I'm sorry, how long you were at 10 McKinley Tech High School? 11 A Yes, yes, because it's explicitly stated 12 when I was transferred. 13 Q Can you let me know what date it is that 14 you left McKinley Tech? 15 A On September 2nd, 2011. My full-time 16 position at McKinley was eliminated and I was 17 involuntarily transferred to Shaw middle school as 18 a special education teacher. 19 Q Now, during the time that you were at 20 McKinley Tech from 2005 until September of 2011, 21 were you subject to any race discrimination, that 22 you believe, during that time? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 8 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 16 1 A Yes. 2 Q Can you describe for me the things that 3 you believe constituted race discrimination while 4 you were at McKinley Tech from 2005 until 2011? 5 A Okay. 6 Q If you want to take time to read your 7 documents, you can? 8 A Okay. 9 Q I also want to show you Defendant's 10 Exhibit No. 2 which I've also provided a copy to 11 your counsel. Can you just identify that for the 12 record, please? 13 A What's this one? I'm sorry. 14 MS. SAVIT: She wants you to say what it 15 is. 16 A Oh, the charge of discrimination filed 17 with the EEOC. 18 BY MS. FEATHERSTONE: 19 Q What day was that filed on? 20 A 5/16, I think? 21 Q What year? 22 A '14, 2014. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 9 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 17 1 Q Okay. And is that your signature at the 2 bottom? 3 A That is my signature at the bottom, yes. 4 Q Okay. Can you just take time to review 5 both those documents for me? 6 A Yes, yes. 7 MS. SAVIT: While she's doing that, off 8 the record. 9 (Off the record.) 10 A May I ask you to repeat the question for 11 me, please? 12 BY MS. FEATHERSTONE: 13 Q Yes. 14 A Thank you. 15 Q Can you tell me from the time you 16 started, August of 2005 until September of 2011, 17 while you were at McKinley Tech, what things you 18 believe constituted race discrimination that you 19 were subjected to during that time? 20 A Okay. During that time -- at some point 21 I received information that the autism program for 22 the entire D.C. public school would be overseen by Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 10 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 28 1 A It varied based on the needs of the 2 students. 3 Q And what type of resources did the high 4 school autistic children need through your program 5 that you were working with? 6 A They would have needed social, 7 emotional, skills program, anything dealing with 8 transitioning from high school to college. So 9 materials on post secondary ed, employment, 10 independent living, you know, general life skills. 11 Q Were these services being provided at 12 other schools? 13 A I can't speak to that because I wasn't 14 at those schools. 15 Q During the meetings did you learn that 16 any other schools requested these specific 17 services and didn't receive them? 18 A Explicitly, no. I don't know what 19 people requested. I know the needs of the 20 resources at my program were very unique, that it 21 had to be ordered separately than what anyone else 22 needed because my kids were high functioning. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 11 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 29 1 Q And you were the only one that had high 2 functioning -- 3 A High school kids. 4 Q -- autistic high school kids? 5 A Right. So it couldn't be a situation 6 where if they did have extra supplies or resources 7 on hand for other high school students, my 8 students wouldn't have benefited from that because 9 they were performing, you know, very differently 10 than the students in some of the other programs. 11 Q Because you had a very specific program 12 running, this autistic program at the high school, 13 did you have to submit a budget request to the 14 school? 15 A No. 16 Q And so how were you -- how was your 17 program funded? 18 A Not sure. 19 Q When you needed resources for your 20 school prior to Ms. Koval coming in 2010, from 21 2005 to 2010, what was the mechanism that was used 22 for you to obtain the resources you needed? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 12 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 30 1 A Send an e-mail to the previous program, 2 autism program manager, Ms. Vicki. I would just 3 let her know, she would order the materials and I 4 would receive them. So I thought I could order 5 things one of two ways, either internally from the 6 school or externally through central office. I 7 never was able to get anything internally from the 8 school so my other route was to try central office 9 and go through the autism program manager. 10 And at the time Ms. Vicki was able 11 to get me, you know, as much as possible but once 12 she left that's when resources were not provided 13 in either direction, school or the autism cluster 14 program. 15 Q So before she left the school wasn't 16 really providing you what you needed through that 17 mechanism? 18 A She? 19 Q The school? 20 A You said before she left. Which one? 21 Q Vicki. 22 A No, no. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 13 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 31 1 Q So she was the one that was providing 2 you what you needed? 3 A Yes, yes. 4 Q When Ms. Koval replaced her Ms. Koval 5 stopped providing those to you? 6 A Correct, and just I want to add that 7 Ms. Vicki was able to provide me things within her 8 means. So like, for example, if I requested 9 laptops for my students at the school because the 10 rest of the students in the building had laptops, 11 I was under the impression that my school was 12 supposed to also include me on the budget. Like 13 the principal was supposed to also include laptops 14 for my program, that wouldn't have come through 15 central office, it was supposed to come through 16 the school budget and things like that were not, 17 you know, provided. So I would always go to 18 Ms. Vicki for program resources here and there as 19 she would, you know, be able to come across them. 20 Q And so -- 21 A So I'm saying I didn't ask, I didn't ask 22 her for everything. I did rely on some things to Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 14 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 32 1 be fulfilled by my principal. 2 Q So what's the basis of your race 3 complaint? 4 A When I saw the patterns of treatment 5 with different teachers throughout the autism 6 cluster program when we attended these meetings. 7 Q But you can't identify any of the 8 schools or teachers? 9 A No, not by name, um-um. 10 Q When you left McKinley Tech in 2011 to 11 go to Shaw, as you stated earlier, involuntarily 12 -- 13 A Yes. 14 Q Well, let me back up and ask you this. 15 I'm sorry. 16 How was, how were you employed as a 17 teacher, meaning were you considered a term 18 employee that was renewed every year, are you 19 considered a full employee? I'm just trying to 20 get an understanding of what type of teacher 21 employment you had because I understand there are 22 different types of teacher employment? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 15 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 34 1 Q Okay. And so what is your understanding 2 of DCPS's ability to move you around within the 3 school system? 4 A My understanding now or then? 5 Q Now, as we speak now. 6 A That if there is a need for them to 7 transfer a teacher, you know, to another location 8 based upon allocation, reallocation of resources 9 that they can do that. 10 Q Is your license only for a specific 11 grade level like -- 12 MS. SAVIT: Let her finish. 13 A Sorry. Go ahead. 14 BY MS. FEATHERSTONE: 15 Q I'm pausing, I'm sorry. I'm taking 16 long, pregnant pauses. Is your license good for 17 like a certain type of teaching? Are you 18 licensed, certified to be a special ed teacher in 19 a high school for high functioning autistic 20 children? Is it is that specific? 21 A Licenses are specific to include the 22 disability category and the grade range that Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 16 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 35 1 you're allowed to teach. 2 Q So DCPS could transfer you to, as long 3 as they keep you in your licensing pool, you could 4 be at another high school under whatever category 5 disability that you're licensed to teach? 6 A From my understanding, yes. 7 Q Okay. And so when you were transferred 8 to Shaw, was that a high school? 9 A No. 10 Q What was that? 11 A A middle school. 12 Q Okay. Did that affect your licensing? 13 A No. 14 Q Being sent to a middle school? 15 A No. 16 Q Why not? 17 A My license is K through 12. 18 Q Oh, okay. Okay. 19 A Now I'm categorical. 20 Q What does that mean? 21 A Any disability. Some of them are 22 specific to a certain disability and some of them Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 17 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 37 1 A I'm like, um. 2 BY MS. FEATHERSTONE: 3 Q What is a teacher's role in the 4 beginning stages of an IEP? I guess I'll 5 rephrase. 6 Can you just -- for someone who has 7 no knowledge about IEPs, can you walk me through 8 what happens when a student comes in and it's 9 determined that a student is on IEP that's going 10 to be assigned to your class. What does that mean 11 to you as the teacher? 12 A Okay. That means that I would have to 13 review the documents to learn about the 14 background, history of the student to see how I am 15 to best serve the student upon arrival. If there 16 is anything that is missing I may ask, you know, 17 the special education coordinator assigned to the 18 school or contact the previous school to get 19 additional supporting documentation. 20 But essentially the IEP plan 21 communicates to me how to best teach to the 22 student's needs. It has background information Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 18 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 38 1 about their present level of performance so where 2 they're performing academically, you know, the 3 nature of their disability, when they were 4 diagnosed, what were the findings, but that is 5 like the plan that I'm supposed to follow upon 6 receiving the students, so I educate myself. 7 Q Okay. And when you receive that does it 8 identify the resources that are needed to, I 9 guess, implement the IEP or to carry out the terms 10 of the IEP? 11 A It varies. In some cases it does, in 12 some cases it did not. 13 Q And what are the times, when it does 14 identify the certain resources that have to be 15 used to carry out the IEP, are those provided to 16 you upon receiving the IEP or do you have to 17 request it? Like, how does that work? 18 A No, they are not provided in many cases. 19 So some IEPs will be very specific, they may 20 include information to say this student needs, you 21 know, would best benefit from this type of 22 program. If I do not have this program, you know, Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 19 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 43 1 Are you saying it's because Colleen Koval was 2 White that she, that this was the basis of your 3 race complaint, that she, this White 4 administrator, is not giving me this Black special 5 ed teacher the resources I need to carry out an 6 IEP that has specific resource requirements? 7 A Correct. 8 Q Or are you saying that despite the race 9 of Colleen Koval, White teachers were being given 10 IEPs with students who had specific resource needs 11 and those White teachers were being given those 12 resources? 13 A I don't know about the IEPs of the White 14 teachers so I can't speak to whether or not the 15 resources matched with what their IEP needs were, 16 I just know what I saw from the meetings that took 17 place. I had more conversations with the minority 18 teachers, the other African-American teachers, 19 during those meetings than I did some of the 20 non-minority teachers. 21 Q So is the basis of your race complaint 22 that because Colleen Koval, the White Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 20 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 44 1 administrator, was treating you differently 2 because of your race? 3 A Yes. 4 Q Okay. Why were you transferred to Shaw? 5 A I was told that they needed additional 6 support at Shaw Middle School. They needed to 7 reallocate funds at the time, they didn't have a 8 special education teacher who could oversee the 9 intellectual, students with intellectual, with an 10 intellectual disability at Shaw Middle School and 11 so they needed someone to cover the classroom. 12 Q What type of student is that, an 13 intellectual -- 14 A It's the new term to replace mental 15 retardation. So students whose IQ are below 16 normal or below average. 17 Q What's it called, intellectual -- 18 A Disability. At the time the students 19 who were in this program, they were being taught 20 in the same classroom with students on the autism 21 spectrum which was not allowed, you're not 22 supposed to do that, so they need somebody to come Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 21 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 45 1 in to cover the class. 2 Q And approximately how many students was 3 that, do you remember? 4 A That first year? Under ten. The 5 numbers fluctuate throughout the years so much. 6 Q You indicated that you were told that 7 they needed additional support to reallocate the 8 funds for you to go to Shaw but why did you 9 believe you were being transferred? 10 A Because of my continued advocacy for the 11 students at McKinley Tech. 12 Q What type of advocacy were you doing or 13 engaging in for your students at McKinley Tech? 14 A Just asking for the appropriate 15 resources, making sure we had the appropriate 16 teaching space, making sure that pretty much 17 anything that was written in the IEP was made 18 available to the students. 19 Q How long were you asking for these 20 things? When did you begin your advocacy, I 21 should say, for your students? 22 A I would have to refer back to documents Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 22 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 53 1 Q Okay. Were any of those performance 2 evaluations negative? 3 A Define negative. 4 Q How are you defining negative? 5 A Maybe just the way that language, like 6 the commentary is worded in the document that 7 doesn't sound to be supportive or, you know, like 8 one could receive a low score because maybe that's 9 something that you need additional practice in, 10 which is fine, but sometimes the way that 11 information is worded in the document, the 12 commentary can come across as being quite negative 13 as opposed to being supportive and helpful to the 14 person that you're giving feedback to. 15 Q And did that happen to you, 2005 until 16 2011 while you were at McKinley Tech -- 17 A Um-hum. 18 Q -- under any of the administrators 19 there? 20 A I would have to read some of the 21 commentary in the documents but I did receive low 22 performance evaluations. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 23 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 54 1 Q From who? 2 A Samantha Bright, in particular, that I 3 felt wasn't justifiable. 4 Q Do you believe it was because of your 5 race? 6 A No, no. And this is not to say, like, 7 some of the other evaluations that I received from 8 other administrators, internal and central office, 9 were varying scores, you know, nothing that was 10 perfect by no means, but hers in particular, you 11 could see the differences from evaluation to 12 evaluation throughout the year. 13 Q Okay. Because you have three claims in 14 your complaint, I'm going to handle all of 15 McKinley Tech and use each claim as opposed to 16 kind of going all over the place so that's why I'm 17 kind of focusing on McKinley Tech. So you also 18 brought a claim of whistle blower? 19 A Um-hum. 20 Q And I would like to know during the 21 2005, 2011 period time that you were at McKinley 22 Tech, do you believe that you made any protected Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 24 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 55 1 disclosures about anything occurring at McKinley 2 Tech? 3 MS. SAVIT: Object to the form of the 4 question. 5 BY MS. SAVIT: 6 Q You can still answer the question. 7 A Okay. 8 Q Any time she says object to the form, 9 you can still answer. 10 A Okay. 11 Q Unless she tells you not to answer. 12 A Okay. I'm sorry, can you define 13 protected disclosures? 14 Q Did you ever complain about anything 15 involving, make any complaints at the school about 16 anything that you believe caused actions to be 17 taken against you? 18 A Yes. 19 Q Can you describe those for me and give 20 me the time period in which it happened? 21 A The time periods. I raised concern 22 about the lack of resources that were not made Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 25 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 56 1 available to the students in the program. The 2 teaching location was a huge concern, both to the 3 students in the program and the parents. I know I 4 asked for training, continued training. 5 Q While you were at McKinley Tech? 6 A See, I would have to review documents. 7 I believe I did. Especially when we had this new 8 evaluation system that teachers in DCPS were being 9 evaluated by the quality of our teaching practices 10 and my evaluation changed over time so at one 11 point all special education teachers in the 12 District had to follow the same evaluation like 13 the standards within it, and then at another point 14 teachers of students with autism had a different 15 rubric to follow. 16 So as the changes were constantly 17 made, you know, throughout the District, just 18 asking and make sure I received regular training, 19 you know, on any evaluation changes, anything 20 related to, you know, the job as a whole. 21 Q And this occurred from 2005 to 2011? 22 A I wouldn't say from the start of 2005. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 26 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 60 1 A I would actually have to read them again 2 to refresh my memory. These are the ones from 3 McKinley, correct? 4 Q Right. You said that there were written 5 reprimands given to you? 6 A Yeah. 7 Q And this was during, when Mr. Pinder 8 came aboard? 9 A During his, yeah, tenure. 10 Q And Ms. Bright? 11 A The one from Colleen Koval, she actually 12 openly made a threat to me that she was going to 13 write a written reprimand, write me up in front of 14 colleagues at a meeting one day during a special 15 education team meeting because something wasn't 16 completed and a task wasn't completed in an 17 electronic database that we use, that all special 18 education teachers use. 19 Q Did she write you up? 20 A Um-hum. She actually told the principal 21 who wrote me up so the letter came from him, it 22 didn't come from her, but she influenced that. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 27 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 62 1 she talked about that, November 2010? 2 A Um-hum. 3 Q That's in your Exhibit No. 2. So she 4 was there from August 2010 and November 2010 she 5 made this, this statement that she's going to have 6 you written up. Was that based on your raising 7 concerns about lack of resources? 8 A You mean was the content of the 9 reprimand about lack of resources? 10 Q No. Was the reprimand, was it 11 influenced by your raising concerns about lack of 12 resources? 13 A I don't know why she -- I can't speak to 14 why it was influenced, I just know that it 15 happened. 16 Q Okay. But the low evaluations that were 17 given by Ms. Bright you believe were based on your 18 complaints that there were no resources or a lack 19 of resources made available? 20 A Yes. I mean, you could see over the 21 course of time my evaluations started off, you 22 know, being, you know, being an effective teacher Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 28 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 65 1 this here. So that would have included, Aaron 2 Pitts (phonetic) and team, whoever the people were 3 in the EEO office at the time. 4 Q So you filed EEO complaints complaining 5 about Ms. Koval treating you differently because 6 of your race with DCPS's human resources office? 7 A Yes. A lot of the complaints were 8 internal first before it went to the EEOC. 9 Q Were they all ridden? 10 A You said written? 11 Q Written, sorry. 12 A Yes. 13 Q No oral complaints? Did you make any 14 oral complaints about her treating you differently 15 because of your race? Meaning Ms. Koval. 16 A Well, I spoke on it once I got to the 17 meetings to have things addressed, if you count 18 that. I mean, I wasn't just walking around just 19 randomly saying, you know, race retaliation to 20 people, no. 21 Q Okay. With respect to the teaching 22 location, can you tell me a little bit about that? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 29 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 66 1 What was that issue? 2 A My program was in the girls' dressing 3 room of the school, literally labeled on the 4 outside of the girls' dressing room. That 5 location was attached to, it was designed as like 6 the dressing room for anyone who needed to change 7 to maybe, you know, go on stage to perform so it 8 was connected to the theater. That was my 9 classroom. It had a bathroom in there, you know, 10 no windows, lockers for obvious reasons, it was a 11 dressing room, and I essentially had to kind of 12 make it a teaching space by bringing in a desk, 13 some chairs for the students. But I didn't have 14 like a whiteboard, I didn't have the same basic 15 classroom resources that other teachers would have 16 in other classrooms. 17 Q When did that first happen? 18 A I moved more than one time over at 19 McKinley. It's on record somewhere. Actually, my 20 first year in the program, 2005, under the first 21 principal, he gave me a full classroom with two 22 kids. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 30 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 76 1 A Okay. 2 Q So you understand what the Individuals 3 with Disabilities Education Act is, correct? 4 A Yes. 5 Q Okay. 6 A Yes. And basically you're asking do I 7 feel that some of the things that didn't happen -- 8 Q Some of the complaints that you were 9 making -- 10 A Right. 11 Q -- to the school at McKinley Tech -- 12 A Um-hum. 13 Q -- resulted in the, in you believing 14 that they were, I guess -- 15 A Violating. 16 Q Violating the IEDA? 17 A Yes. 18 MS. SAVIT: I think it may be time for a 19 break after this. 20 A Yes. 21 BY MS. FEATHERSTONE: 22 Q Okay. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 31 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 77 1 A Yes. 2 Q And during -- talking about your time at 3 McKinley Tech specifically. What do you believe 4 that the school was doing to violate the IEDA? 5 MS. SAVIT: Again, I'll say no 6 foundation for the question but answer to the 7 best of your ability. 8 A Students with disabilities are supposed 9 to be treated, you know, the same way as their 10 nondisabled peers so as I was asking for the 11 resources to be able to teach them effectively or 12 the appropriate classroom space, these were all 13 things that would have been ideal even for 14 students with, who did not have, you know, 15 disabilities. 16 Q Okay. We can break here. 17 A Okay. 18 (Whereupon, there was a break from 19 11:21 a.m. until 11:28 a.m.) 20 BY MS. FEATHERSTONE: 21 Q We're back on the record, Ms. Walker. 22 We were talking about some of the complaints that Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 32 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 89 1 resources coming in for special education and the 2 parent was on the board, he was one of the parents 3 in my program, the child in my program, was on the 4 board that talked about the budgeting and the 5 funding so he often asked, well, where is the 6 money going for to special education in the 7 school, not necessarily a special education 8 autism, but special education in the school, so 9 that would have included the other departments. 10 So he also had insight to what wasn't happening 11 for the special education program in the school, 12 not just mine. Yeah. 13 Q And so despite the parental involvement 14 and the school not wanting exposure and being on 15 the LSRT, what facts support that there was 16 retaliation against you, you specifically? 17 A Like their reprimands and low impact 18 evaluation and ultimately I felt like the 19 involuntary transfer, me not being given -- I 20 mean, it was really for the students, but the 21 classroom size, the class situation. Yeah, 22 resources, reprimand, impact evaluation and the Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 33 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 90 1 class, those were like four prominent things at 2 McKinley. 3 Q Okay. I'll reserve on other questions 4 when I have the documents so we can kind of refer 5 back to that time period. 6 Moving on to McKinley, I'm sorry, 7 moving on to Shaw. 8 A Okay. 9 Q You came to Shaw in 2011, the beginning 10 of 2011-2012 school year, correct? 11 A Yes, correct. 12 Q Who was the principal? 13 A Kimberly, what is Kimberly's last name? 14 Douglas. Kimberly Douglas. 15 Q And how many other special ed teachers 16 were there? 17 A Oh, this team was larger than -- 18 McKinley, I don't know. And I'm only saying that 19 because I can think of the -- okay. So the 20 programs were different at Shaw because you had 21 students who were self-contained, in 22 self-contained programs, which this wasn't the Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 34 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 93 1 Q Okay. And when you got to McKinley, so 2 there was a large number of special ed teachers, 3 were they all under Ms. Koval? 4 A No. Because remember only autism is 5 under Koval. 6 Q So now you're no longer under Ms. Koval? 7 MS. SAVIT: When you got to McKinley you 8 meant Shaw? 9 BY MS. FEATHERSTONE: 10 Q Shaw, Shaw. You were no longer under 11 Ms. Koval? 12 A Right, right. But the teacher who had 13 the class that I ultimately started to teach, her 14 class was autism and she was still in the autism 15 program. 16 Q But they pulled your students out and 17 you all were in a separate class? 18 A Right, right. So I ended up coming to 19 the school, taking those extra kids that weren't 20 supposed to be in her autism class and they put 21 them, I was next door to her in the IED classroom. 22 Q Okay. Who was the program head? I Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 35 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 94 1 forgot what they're called. 2 A There wasn't one for intellectual 3 disabilities. 4 Q Okay. 5 A I think the autism cluster program was 6 the first of its kind to have like a program 7 manager in central office. I will say that 8 Colleen wasn't officially supposed to be out of 9 the picture in that first month are so, although I 10 moved into a different disability category and she 11 would technically no longer be the program, you 12 know, manager because she was supposed to help 13 facilitate with the transition. 14 Q Kimberly Douglas, what was her race? 15 A Black. 16 Q Okay. And the special ed teacher who 17 had the autistic children at Shaw, what was her 18 race? 19 A Black. 20 Q Now, when you moved over to the new 21 disability group, the intellectual -- 22 A Intellectual disability? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 36 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 95 1 Q Yes. 2 A Um-hum. 3 Q Did you report directly to Ms. Douglas? 4 A No, no. So there was an assistant 5 principal. 6 Q Who was that? 7 A The first year it was David Dematthews. 8 Q Race? 9 A White. 10 Q Okay. And he was under Ms. Douglas? 11 A Yes. 12 Q Okay. 13 A And also the person who had the 14 responsibility of overseeing the special education 15 team. 16 Q Okay. And so during that first year you 17 reported to Mr. Dematthews? 18 A It started off with both because they 19 both wanted to help me transition into a new 20 school and then it faded to Dematthews. 21 Q Okay. And the second year, 2012-2013 -- 22 A Um-hum. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 37 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 102 1 Q Even with two kids? 2 A No. That first year, no, but once the 3 program started growing and they started to change 4 the way that they wanted the levels of support 5 from central office, it ultimately was added, 6 yeah, um-hum. 7 Q So at most you had eight or nine kids in 8 a class? 9 A Right. 10 Q And you had an aide with you? 11 A Um-hum. 12 Q And what, if anything, did you report 13 with regard to that? 14 A So as we started getting these kids who 15 were coming from one of the middle schools in D.C. 16 public schools, I can't remember the time, in 17 many cases the kids would have an attorney and 18 this was -- so sending the kids to Shaw was DCPS's 19 way to show either the parent and/or advocate 20 and/or attorney that we do have a school who can 21 meet your child's needs, because wherever the kids 22 were coming from, that middle school, it wasn't Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 38 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 103 1 happening. 2 And because the numbers were low at 3 the time in my class it was like, okay, we're just 4 going to move them here, we'll be able to provide 5 them, you know, the free and appropriate education 6 according to IEDA. Well, as these kids were 7 coming, like I said, there were things that were 8 in their IEPs that they needed, that I needed, to 9 be able to assist them effectively and when you 10 have attorneys involved in cases, like these are 11 things that you just, as a school, need to make 12 sure, I mean, you need to make sure you have them 13 in place regardless but, you know, you know that 14 there's going to be a lot of checking in and 15 questions that, you know, will happen as a result 16 of the transfer and the change so it's the 17 school's responsibility to make sure that they do 18 whatever they need to do to make sure that we're 19 able to provide a free and appropriate, you know, 20 public education. 21 And I knew I would essentially be 22 held accountable for things that I may not have Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 39 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 104 1 been able to do despite not having the resources 2 or support, and I just wanted to make sure that 3 was clear, you know. 4 Q What type of things? 5 A Like resources. 6 Q You said things that I would need to do. 7 A I knew there were things I would have to 8 do. You mean with the students? 9 Q With the students, yeah. 10 A Okay. So I would just, you know, wanted 11 to make sure that was clear, you know, to 12 administrators by me again following up saying, 13 hey, these IEPs are saying X, Y and Z or there's 14 an attorney involved, what are we going to do to 15 best meet the student's needs or this kid's IEP 16 says that, you know, they're supposed to have 17 access to, you know, certain assistive technology 18 devices. I don't have that in my classroom, are 19 you going to order that for me? You know, things 20 like that. 21 Q Who did you make the request to, 22 Ms. Douglas? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 40 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 115 1 Q And what happened? 2 A So one of the issues was about resources 3 because I couldn't -- if I was going to prepare 4 these kids to take this alternate assessment come 5 springtime I didn't have textbooks, I didn't have 6 textbooks at the beginning of the year, that was 7 one of the things I asked for. They finally came 8 in spring, you know, but it took me going to the 9 union, having the union person come in to have a 10 meeting and for it to be put on record to say can 11 you please give her textbooks and the school year 12 was almost over. 13 But I think it was just, again, me 14 being consistent, persistent, you know, to the 15 same people over and over again that ultimately, 16 you know, triggered some of the events that 17 happened. 18 Q And during the 2012-2013 year -- 19 A Um-hum. 20 Q -- at Shaw -- 21 A Um-hum. 22 Q -- do you believe that you were Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 41 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 121 1 was severe, that means that I probably would have 2 been working on the alphabet with them, and then 3 you bring in these other kids who, yeah, they had 4 a problem with reading but they didn't come in 5 just, you know, starting off with ABCs. 6 So what did they -- they didn't 7 take, you know, they didn't take any of that into 8 consideration. So I had to get very creative with 9 how I was going to structure my program in order 10 to provide effective instruction. I did ask for 11 resources, obviously as I do every year. 12 Q Like what? 13 A A reading program. One of the reading 14 programs that we did have in the school was called 15 Wilson reading and this was a program that was 16 used by some of the teachers before the kids who 17 were in the mainstream classes, the inclusion 18 classes, I was like, okay, well, I need some sort 19 of reading program to be able to teach reading 20 effectively to students who have varying reading 21 abilities. I knew that Katherine Baker used the 22 program before, received the training. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 42 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 122 1 Q Who was that? 2 A This was the teacher, the Caucasian 3 teacher, who students I was helping. So, I mean, 4 ideally it would have made sense for her to just 5 teach the kids reading if she had the training on 6 the reading program but, whatever, I know they 7 sent them, like I said, to me because of the 8 behavior. Okay, fine, they'd provide me with the 9 training. 10 Q How do you know she had the training? 11 A It was said. We knew that she had the 12 training last year, the previous year. Because I 13 was in the building, you know, with some of these 14 other special education teachers, so. 15 Q Was she the only one without the 16 training? 17 A That, I don't know. Because this was my 18 first time even asking about the program because 19 my students wouldn't have benefited from -- my 20 students with an intellectual disability wouldn't 21 have necessarily benefited from this type of 22 reading intervention program because it was for Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 43 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 123 1 students who actually could read a little bit but 2 I was like, okay. 3 So I didn't know about it, I don't 4 want to say I didn't know about it, last year, but 5 I had no use for it the previous year, hence the 6 reason why I didn't go out. 7 Q How do you know that Katherine Baker 8 received it but you don't know about any of the 9 other special ed teachers that received it? 10 A Because I was working with her students 11 so the conversations that were held behind the 12 scenes was like, well, what have you used with 13 some of these students, you know, in the past and 14 that's when it ultimately, you know, came up. And 15 at some point I knew that she, Ms. Dykstra, 16 allowed her, the vice principal, allowed her to go 17 to an off site training for this program and I 18 asked to go as well and I was told that I couldn't 19 go. 20 Q Why not? 21 A Like, I was told that there were reasons 22 that she was allowed to go but, yeah. The way I Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 44 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 126 1 Q Okay. And then what other instance of 2 race discrimination? 3 A Well, the caseload distribution and, I 4 mean, this came up, you know, again, once there 5 was a school-wide grievance filed with the union, 6 like the caseload distribution between minorities 7 and non-minorities, specifically referring to 8 myself, was not equivalent. 9 And so as I started to feel as 10 though the challenge became great for the students 11 I was servicing as the year progressed because, 12 you know, I didn't have the resources, I started 13 to question, well, you know, whether or not 14 Ms. Baker can actually have the students that I 15 have, if she can actually go back to teaching 16 those kids during the time that she's available 17 because, one, she has the training, maybe access 18 to the resources, but it was unequal distribution 19 of labor. 20 So I wasn't supposed to have, 21 technically, if you look at the contract, I was 22 only supposed to have students with an Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 45 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 127 1 intellectual disability in an intellectual 2 disability classroom. 3 Q Okay. Let me just -- I thought her 4 class, I thought her students only came to you one 5 hour a day? 6 A Yes. That's because that's the 7 arrangement that the school set up. 8 Q And the school-wide, the school-wide 9 complaint that was made was about all teachers, 10 not just special ed teachers? 11 A Right. 12 Q And one of the issues was caseload? 13 A Um-hum. 14 Q And when you say caseload, are you 15 talking about the number of students per class? 16 A Correct. 17 Q So every teacher in the school was 18 complaining about the number of kids in the class? 19 A No. Oh, you mean -- okay. I see how 20 you're interpreting. So caseload, that's 21 typically a term used with special education 22 teachers or anyone working with students in the Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 46 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 145 1 around to 2013. 2 A Okay. 3 Q So you're back from winter break -- 4 A Um-hum. 5 Q -- at Shaw? 6 A Um-hum. 7 Q At some point during that time 8 Ms. Baker's students are returned back to her 9 class or wherever they sent them? 10 A Yeah. 11 Q There came a time when there was a 12 complaint that you may have fraudulently completed 13 an IEP? 14 A Um-hum. 15 Q Do you remember that? 16 A I do. 17 Q Can you tell me about that? What 18 happened? 19 A I think I received an e-mail to come and 20 meet with someone in the main office on any given 21 day, I don't know, February, I think, and during 22 that time I was pulled into a room by Investigator Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 47 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 152 1 speech and language, social emotional, like he 2 wanted to interview everyone involved. 3 Q And are you aware of that happening? 4 A Yes. 5 Q And what was the outcome, do you know? 6 A I was able to see some of the documents 7 that were written as a result of the communication 8 that took place, I believe, between the 9 investigator and some of the related service 10 provider. So I know one in particular expressed 11 on record that, you know, according to a meeting 12 that she, the social worker, myself and 13 Ms. Dykstra sat in that Ms. Walker was told to 14 finalize, you know, the IEP, she was there, she 15 witnessed it, you know, so I remember seeing that 16 as part of some of the documents that Investigator 17 Jeffries pulled together. 18 Q So what is your understanding of what 19 the ultimate finding was of the investigation? 20 A You know, it really didn't come until 21 after the school year ended that I guess I was 22 just, I was found guilty of the fraudulent Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 48 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 153 1 activity and ultimately was asked to not return. 2 Q But what was the activity? Did they 3 define that for you? Like, did you ever get an 4 understanding of what it was that you supposedly 5 had done to the IEP to cause -- 6 A Like finalizing the document was 7 fraudulent activity. Without having a meeting. 8 Q So is there a meeting required for IEPs? 9 A Typically, yes. 10 Q And so what about the meeting that 11 occurred was fraudulent? I guess I'm trying to 12 understand like what was the nature of your 13 understanding of why they were bringing this to 14 you and saying, hey, this is a fraudulent, this 15 was a fraudulent IEP? 16 A Well, I didn't -- the nature of my 17 understanding was that, you know, clicking the, 18 from what they were telling me at the time, 19 clicking and finalizing the document that 20 basically said a meeting took place with some of 21 the contents of the information on there was what 22 was considered fraudulent. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 49 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 176 1 MS. SAVIT: Object to the form of the 2 question. 3 A I honestly thought everything was 4 resolved. I was told to continue on with IEP 5 meetings without any direct and explicit 6 instructions on what to do based on the questions 7 posed earlier in the year to the respectful 8 parties. I just figured that whatever happened 9 wasn't, like pertaining to this student, wasn't 10 really an issue and closed out the year 11 accordingly. So I really was caught off guard and 12 shocked when I saw this. 13 Q Prior to the school year ending were you 14 notified that you would be going to another 15 school? 16 A Um-hum. 17 Q What school was that? 18 A Ludlow-Taylor. 19 Q And in what capacity? 20 A Special education teacher. 21 Q Did you receive any documentation about 22 that transfer? Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 50 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 177 1 A Like a congratulatory, I think, e-mail 2 or something from the principal. 3 Q And was Ludlow-Taylor, was that transfer 4 going to be involuntary as well? 5 A No. Like Shaw was closing so everyone 6 had to go somewhere. Well, I mean, I guess, yeah, 7 we weren't volunteering to, you know, go anywhere 8 else but the school was closing, everybody had to 9 go. 10 Q And Ludlow-Taylor is an elementary 11 school? 12 A Um-hum. 13 Q And so at what point were you notified 14 that you would not be going to Ludlow-Taylor? 15 A It was in the summer. I hadn't read the 16 letter, I guess, that was initially sent in the 17 mail based upon this date but an e-mail, that's 18 when I learned of it. 19 Q And do you have a copy of that e-mail? 20 A I believe I forwarded it, yeah, to the 21 union person who ultimately wrote the grievance 22 and it should be attached. Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 51 of 52 Shavon Walker SHAVON WALKER v. DISTRICT OF COLUMBIA 12/22/2015 Washington, D.C. Baltimore, MD Florida Olender Reporting, Inc. (888) 445-3376 WORLDWIDE 178 1 Q So you filed a grievance over the 2 termination? 3 A The union person did, yes. 4 Q On your behalf? 5 A Yes, on my behalf. 6 Q And in that you were orally or in 7 writing notified -- how were you notified, I'm 8 sorry, of the Ludlow-Taylor transfer no longer 9 being a valid option? 10 A Okay. It wasn't really a transfer 11 because I did have to, like interview for the 12 position so it wasn't like teachers were just 13 transferred into these different schools. 14 Q Okay. 15 A We did actually have to go out and seek 16 work. But I was notified in an e-mail, yeah, that 17 I received. 18 Q So let me just clarify. So 19 Ludlow-Taylor you had to apply for? 20 A Yes. 21 Q And what would have happened if you 22 hadn't found a position, what was your Case 1:15-cv-00055-CKK Document 54-5 Filed 10/28/16 Page 52 of 52 EXHIBIT 2 Case 1:15-cv-00055-CKK Document 54-6 Filed 10/28/16 Page 1 of 4 Case 1:15-cv-00055-CKK Document 54-6 Filed 10/28/16 Page 2 of 4 Case 1:15-cv-00055-CKK Document 54-6 Filed 10/28/16 Page 3 of 4 Case 1:15-cv-00055-CKK Document 54-6 Filed 10/28/16 Page 4 of 4 EXHIBIT 3 Case 1:15-cv-00055-CKK Document 54-7 Filed 10/28/16 Page 1 of 6 1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 --------------------------------x 4 SHAVON T. WALKER, : 5 Plaintiff : Civil Action No. 6 v. : 15-0055 (CKK)(GMH) 7 DISTRICT OF COLUMBIA, : 8 Defendant : 9 --------------------------------x 10 11 Deposition of DAVID RODNEY PINDER 12 Washington, D.C. 13 Tuesday, February 23, 2016 14 1:56 p.m. 15 16 Job No.: 104838 17 Pages 1 - 114 18 Reported by: Alda Mandell, RPR, CRR 19 20 21 22 Case 1:15-cv-00055-CKK Document 54-7 Filed 10/28/16 Page 2 of 6 Deposition of David Rodney Pinder Conducted on February 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 6 1 P R O C E E D I N G S 2 DAVID RODNEY PINDER 3 being first duly sworn or affirmed to testify to 4 the truth, the whole truth, and nothing but the 5 truth, was examined and testified as follows: 6 EXAMINATION BY COUNSEL FOR PLAINTIFF 7 BY MS. SAVIT: 8 Q Good afternoon, Mr. Pinder. Could you just, 9 for the record, state your full name. 10 A David Rodney Pinder. 11 Q Okay. We're here for a deposition. It's in 12 the case of Shavon walker versus District of Columbia. 13 I'm going to be asking you questions and the court 14 reporter will be taking everything down unless she 15 specifically is asked to go off the record. 16 Please make sure when you answer my 17 questions that you answer them with words, not with 18 body language or uh-huh -- 19 A Sure. 20 Q -- or anything because that's very hard to 21 pick up. And this is very hard, but please try to 22 wait until I'm done asking the question before you Case 1:15-cv-00055-CKK Document 54-7 Filed 10/28/16 Page 3 of 6 Deposition of David Rodney Pinder Conducted on February 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 41 1 didn't. I just don't remember that language. I do -- 2 there was a room that we reserved for her that was not 3 a locker room. It was an extension of the auditorium 4 and it had a lavatory in it. 5 And to the best of my recollection, she 6 requested that room because it had a lavatory in it 7 for the kids, you know, when they came down. I don't 8 remember her complaining about that room specifically. 9 That doesn't mean it didn't happen. 10 Because she may have complained to an AP who 11 then told me. I just can't remember whether it was 12 her or an AP. 13 Q So during the time that Ms. Walker was a 14 teacher at McKinley while you were a principal, did 15 she raise concerns with you about whether there was 16 adequate budget to meet the special education needs of 17 her students? 18 A To the best of my recollection, I remember a 19 letter or an email that may have touched on those 20 points. I can't remember the specifics. 21 Q Do you remember taking -- whether you took 22 any action in response to that letter or email? Case 1:15-cv-00055-CKK Document 54-7 Filed 10/28/16 Page 4 of 6 Deposition of David Rodney Pinder Conducted on February 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 42 1 A Not specifically to that letter or email, 2 but I do remember having a conversation with my 3 business manager or director of operations -- I can't 4 remember what the title was that time -- saying, you 5 know, we need to get them whatever they need. 6 Q And do you know whether that happened? 7 A To the best of my recollection, I believe my 8 operations director said that the special needs 9 department in general has access to the same resources 10 that anyone else does and they are more than welcome 11 to them. 12 (Exhibit 2 was marked for identification and 13 is attached to the transcript.) 14 Q Take as much as time you need to read that. 15 A Okay. 16 Q You've been handed Exhibit 2. 17 Okay. Can you tell us what Exhibit 2 is? 18 A It is a letter from one of the parents of 19 the students who was in the Asperger's program. 20 Q And the parent's name is? 21 A Mr. King. 22 Q Okay. Did you receive this letter? Case 1:15-cv-00055-CKK Document 54-7 Filed 10/28/16 Page 5 of 6 Deposition of David Rodney Pinder Conducted on February 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 68 1 successful there and help out the program there. And 2 she also felt, Dr. -- this is terrible -- 3 Q Koval. 4 A -- Koval -- 5 Q I'm going to exercise my right to say that. 6 A Dr. Koval. Thank you. Dr. Koval felt that 7 the Asperger students at McKinley needed to get 8 support that was not the same type of support they 9 needed when they came initially in the school. That 10 most of our kids, to the best of my recollection, were 11 in the higher grades. The newer kids, who were in the 12 lower grades, were very high on the spectrum, meaning 13 they were high academically performing. They were 14 able to assimilate into the environment very well. 15 That she felt that the special ed office could support 16 their work on a daily basis at the school. 17 And that Ms. Walker would be a more 18 effective resource at Shaw, given the number of kids 19 there were not being served because they didn't have 20 the special needs teachers there. 21 Q When did you first learn that Ms. Walker was 22 going to be transferred from McKinley to Shaw? Case 1:15-cv-00055-CKK Document 54-7 Filed 10/28/16 Page 6 of 6 EXHIBIT 4 Case 1:15-cv-00055-CKK Document 54-8 Filed 10/28/16 Page 1 of 5 (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA + + + + + ____________________________ : IN THE MATTER OF: : : SHAVON WALKER, : : Plaintiff, : : v. : Civil Action No. : 15-0055 (CKK) : (GMH) DISTRICT OF COLUMBIA, : : Defendant. : : ____________________________: Monday, April 4, 2016 Washington, D.C. DEPOSITION OF: SHAVON WALKER called for examination by Counsel for the Defendant, pursuant to Notice of Deposition, in the law offices of the D.C. Office of the Attorney General, located at 441 4th Street NW, Suite 630 South, when were present on behalf of the respective parties: Case 1:15-cv-00055-CKK Document 54-8 Filed 10/28/16 Page 2 of 5 (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 4 1 P-R-O-C-E-E-D-I-N-G-S 2 1:03 p.m. 3 WHEREUPON, 4 SHAVON WALKER 5 was called as a witness by Counsel for the 6 Defendant and, having been first duly sworn, 7 assumed the witness stand, was examined and 8 testified as follows: 9 DIRECT EXAMINATION 10 MS. FEATHERSTONE: Good afternoon, Ms. 11 Walker. 12 WITNESS: Good afternoon. 13 BY MS. FEATHERSTONE: 14 Q Continuing with your deposition, I 15 wanted to focus on your whistleblower claim that 16 you filed against the District. 17 WITNESS: I'm sorry. 18 MS. SAVIT: You okay? 19 WITNESS: I'm not feeling good today. 20 MS. FEATHERSTONE: Oh, sorry. 21 BY MS. FEATHERSTONE: 22 Q When was the first time that you made Case 1:15-cv-00055-CKK Document 54-8 Filed 10/28/16 Page 3 of 5 (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 7 1 BY MS. FEATHERSTONE: 2 Q What facts do you have to support your 3 whistleblower claim? 4 A The facts were all recorded in my EEOC 5 complaints. 6 Q Everything that you stated in your 7 June 19, 2012 EEO charge of discrimination, that 8 was Exhibit 1 in your first deposition, and the 9 charge of discrimination dated May 16, 2014, 10 which was Exhibit 2 in your deposition, you're 11 relying on those facts to support your 12 whistleblower claim? 13 MS. SAVIT: Objection to the form. 14 WITNESS: It's a combination of 15 documents. Although it started with the original 16 charge, I was informed that I could add 17 additional documents as events or incidents 18 occurred, so I wouldn't say it's exclusively the 19 documents that you're quoting right now, but a 20 combination of that, in addition to other 21 complaints I sent to the HR office internally. 22 BY MS. FEATHERSTONE: Case 1:15-cv-00055-CKK Document 54-8 Filed 10/28/16 Page 4 of 5 (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 53 1 determination is made. 2 Q To your knowledge, the school doesn't 3 have separate funding for ID students? 4 A Again, because I don't see the budget 5 internally, I don't know how the money is divided 6 up. I can only speak to ID at the time and what 7 was and wasn't provided for me. I just know that 8 looking at the other two self-contained programs, 9 outside of what we had internally, I knew that 10 they both had external entities that were 11 specific to those disability categories that 12 those teachers could call on. 13 Q At the central office, was there no 14 general special ed people there? Everyone was 15 assigned to either ED or autism? 16 A No. 17 MS. SAVIT: Objection to the form. 18 WITNESS: No. The Office of Special 19 Education existed, where you could reach out for 20 various reasons. It's just that what I noticed 21 over the years, since starting in DCPS back in 22 2005, there was a restructuring within central Case 1:15-cv-00055-CKK Document 54-8 Filed 10/28/16 Page 5 of 5 EXHIBIT 5 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 1 of 8 United States District Court for the District of Columbia Civil Action No. 15-0055 (CKK) (GMH) PLAINTIFF’S ANSWERS AND OBJECTIONS TO DEFENDANT DISTRICT OF COLUMBIA’S FIRST INTERROGATORIES Plaintiff Shavon T. Walker responds as follows to defendant District of Columbia’s (“the District” interrogatories, with objections by counsel as noted: Objections applicable to multiple interrogatories Many of the interrogatories seek information over a 10-year or longer period. Detailed information about some of these matters is not currently available to plaintiff Shavon T. Walker, who has answered these interrogatories to the best of her ability based upon currently available information. Should additional relevant and discoverable information become available, the answers will be supplemented. Although the District’s revised set of interrogatories, served on August 17, 2015, contains 25 separately numbered paragraphs, many of those paragraphs contain multiple independent questions that cover separate and distinct lines of inquiry and therefore constitute more than one interrogatory each, as provided in Fed. R. Civ. P. 33. Thus: • Interrogatory #3 contains three separate lines of inquiry: (a) names of all individuals who supervised Ms. Walker and her relationship with each, (b) identifying all “negative SHAVON T. WALKER, Plaintiff v. DISTRICT OF COLUMBIA, Defendant Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 2 of 8 4) Describe each incident of unlawful discrimination, disparate treatment, or retaliation against you, during your employment with the District of Columbia, including any incident for which you are seeking redress in this lawsuit. Your answer should include, but not be limited to: a detailed description of each such incident; whether you filed a grievance as a result of any such incident; a description of any retaliation or harassment against you for which you did not file a grievance, claim, charge, or complaint; and, if you did not file a grievance, the reason why you did not do so. Identify any related documentation according to Instruction 8. A4. Objection to being asked to identify specific incidents. Most of the discriminatory practices and disparate treatment to which Ms. Walker was subjected were ongoing problems that cannot be isolated to specific days. Ms. Walker is also unable to provide many details regarding these matters. Many specifics must await the District’s responses to her discovery requests, as the District possesses information about assignments, resource allocations and training opportunities that she does not have. During the 2011-12 and 2012-13 school years at Shaw Middle School, resources, teaching case loads and training opportunities were allocated unequally between white and minority teachers. This is described in detail in the equal employment opportunity complaint I submitted to DCPS’s human resources department. Additional information may be found in grievances submitted by Shaw staff, myself included. I refer the District to these documents pursuant to Fed. R. Civ. P. 33(d). While Colleen Koval directed DCPS’s autism program (during my time at McKinley Technical High School), she did not provide resources that I needed to help serve my special education students despite multiple requests for these resources. My requests are documented in my emails to Ms. Koval, which the District has and to which I refer it pursuant to Fed. R. Civ. P. 33(d). I observed that Ms. Koval was more responsive to comparable requests from white teachers, in a pattern that reflected the minority status of the requesters more than program or school needs. While I was a teacher at McKinley during Ms. Koval’s tenure as head of the autism program, I 10 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 3 of 8 observed that minority teachers were regularly replaced with non-minority teachers, at a pace that was inconsistent with available staffing. Ms. Koval more readily approved needed supplies for campuses that were more heavily populated by non-minority staff than for the campuses that were largely staffed by minority teachers. This information will be provided in greater detail once the District provides information in discovery that is currently within its possession. While serving as a special education teacher at McKinley Technical High School, I was subjected to the following disparate treatment: a. I was not given an official classroom in which to teach, unlike white teachers and non-special education teachers; I was directed to teach my mixed-gender classes in the girls’ dressing room. A parent also asked the school to change the room, as her son complained about this environment, but the school did not act. b. The special education department was not adequately budgeted to ensure that we had sufficient funds to purchase the materials we needed to teach our students and implement their IEPs. Disparate treatment while employed at Shaw Middle School: During an observation, Ms. Dykstra set up a tripod and turned on a video in my classroom. This had not been discussed with me in advance and I did not feel comfortable proceeding with the lesson under those circumstances. I therefore chose not to continue. I contacted the union and the IMPACT office to determine whether this was permitted. Other teachers at Shaw Middle School were not videotaped in this fashion, and I do not know of a legitimate reason for singling me out for this treatment. Retaliation: a. Low performance evaluations noted in A3 above b. Written reprimands noted in A3 above c. I did not receive a salary step increase for the 2011-12 school year 11 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 4 of 8 d. I was suspended or placed on leave without pay, as noted in A3 above e. DCPS sent a notice that it was terminating my employment on August 8, 2013, with an effective date of August 31, 2013. I documented the instances of discriminatory and disparate treatment by emails to supervisors and/or DCPS administrators. I filed grievances through my union about these matters and also included them in equal employment opportunity filings with DCPS and with the United States Equal Employment Opportunity Commission (“EEOC”). For the specifics of my complaints, I refer the District to those filings, pursuant to Fed. R. Civ. P. 33(d). I believe that I included all matters that I believed represented discrimination, disparate treatment and/or retaliation in my filings. 5) Please describe in detail all statements made by you concerning the District of Columbia allegedly violating the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA) during your tenure as a District employee. Your answer should include: an identification of each employee(s) involved in the alleged violation; the time, place and exact nature of each alleged violation; a detailed description of the alleged violation; and the date, time, place, and to whom you made a statement concerning each alleged violation. Identify any related documents in accordance with Instruction 8. A5. Objection. Ms. Walker has made statements to her counsel concerning DCPS’s violations of IDEA, all of which are protected against disclosure by the attorney-client privilege. Further, many of Ms. Walker’s statements about matters that constitute IDEA violations were made orally. It is impossible at this point to pinpoint when and where all such statements were made nor everyone who may have been present. Written statements were typically made by email, all of which are in the District’s possession and to which Ms. Walker refers the District pursuant to Fed. R. Civ. P. 33(d). In addition, any statements by Ms. Walker concerning her perceptions that DCPS was violating the IDEA were those of a layperson, not an attorney, and therefore do not constitute legal analysis or opinions. Rather, these statements were reactions to Ms. Walker’s observations 12 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 5 of 8 10) Identify the factual basis for your allegation in Paragraph 20 of the Amended Complaint that you were offered a position at Ludlow Elementary School, but the offer was withdrawn. Your response should include when you were offered the position, who offered you the position, when the offer was withdrawn, who withdrew the offer, and what explanation if any you were given for the offer’s withdrawal. Identify any related documents in accordance with Instruction 8. A10. Shaw Middle School closed at the end of the 2012-13 school year, and under DCPS policies, if I wanted to remain employed by DCPS I had until August 2013 to find a position in another school. I applied for a position as a special education teacher at Ludlow-Taylor Elementary School, and was offered a job as a special education teacher there by the principal, in late June or early July, 2013. I received an email, dated July 4, 2013, from DCPS Careers (cc to Carolyn Cobbs, DCPS) congratulating me on my selection to fill a permanent position as a 10-month teacher, full-time, at Ludlow-Taylor Elementary School for the 2013-14 school year. I accepted the position. At some point, the principal stopped communicating with me, without explanation. The next thing that happened was that I received DCPS’s August 8, 2013 letter terminating my employment, which effectively withdrew Ms. Bell’s offer. DCPS Human Resources explicitly confirmed that the offer was withdrawn in an email sent on August 15, 2013. It informed me that “upon further review,” I was ineligible for hire for a teaching position at Ludlow-Taylor Elementary School. The letter was signed “School Staffing Coordinator” and was cc’d to “Principal.” These emails are contained within DCPS’s records and I refer the District to them pursuant to Fed. R. Civ. P. 33(d). 11) Before you were terminated were you advised that that [sic ] your supervisor(s), assistant principal(s), or principal(s) were not pleased with your job performance as alleged in paragraph 17 of the Amended Complaint? If yes, please describe each such conversation including who was present, what each person said, and then the conversation occurred. Identify any related documents in accordance with Instruction 8. 19 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 6 of 8 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 7 of 8 Certificate of service I hereby certify that, this 21 day of September, 2015, a copy of the foregoing plaintiff’sst answers and objections to defendant District of Columbia’s first interrogatories was served by email upon Assistant Attorneys General Kerslyn D. Featherstone and Shermineh C. Jones, attorneys for defendant, c/o Office of the Attorney General, Civil Litigation Division, 441 Fourth Street, N.W., Suite 630 South, Washington, D.C. 20001, at kerslyn.featherstone@dc.gov and shermineh.jones@dc.gov. /s/ Diana M. Savit Diana M. Savit 28 Case 1:15-cv-00055-CKK Document 54-9 Filed 10/28/16 Page 8 of 8 EXHIBIT 6 Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 1 of 7 1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 CIVIL ACTION NO. 15-0055(CKK)(GMH) 4 ------------------------x 5 SHAVON T. WALKER, : 6 Plaintiff : 7 v. : 8 DISTRICT OF COLUMBIA, : 9 Defendant : 10 ------------------------x 11 12 13 Deposition of GUILLAUME GENDRE 14 Friday, March 18, 2016 15 Hartford, Connecticut 16 10:00 a.m. 17 18 19 20 Job No.: 106879 21 Reported by: Sandra A. Deschaine, CSR, RPR, 22 Connecticut License #343 Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 2 of 7 Deposition of Guillaume Gendre Conducted on March 18, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 8 1 P R O C E E D I N G S 2 3 GUILLAUME GENDRE, Deponent, having 4 first been satisfactorily identified by the 5 production of his Massachusetts driver's license 6 and duly sworn by the Notary Public, was 7 examined and testified as follows: 8 EXAMINATION 9 BY MS. SAVIT: 10 Q. Good morning. 11 Could you state your full name for the 12 record, please? 13 A. Guillaume Gendre. 14 Q. Did I pronounce that correctly? 15 A. Gendre. 16 Q. You're here to give a deposition in the 17 case of Savon Walker versus District of 18 Columbia. I'm going to be asking you questions. 19 Ms. Jones is here to represent the District of 20 Columbia in the case. 21 The court reporter will take everything 22 down that's said in this room unless she's asked Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 3 of 7 Deposition of Guillaume Gendre Conducted on March 18, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 51 1 the matters that Ms. Walker raised in this 2 email? 3 A. I don't recall that. 4 Q. Okay. 5 Was there a time that you asked the 6 DCPS Central Office to look into whether 7 Ms. Walker had mishandled an IEP for one of her 8 students? 9 A. I don't recall that. 10 (Exhibit 16 was marked for identification and is 11 attached to the transcript.) 12 Q. Take a look at Exhibit 16, please. 13 (Witness reviewing document.) 14 A. Okay. 15 Q. Can you tell us what Exhibit 16 is? 16 A. It's two emails, one to me from a 17 Mr. Jeffries, and then one from me to Orndorff 18 Jeffries. 19 Q. And the subject matter of that email is 20 what? 21 A. The subject is the response to 22 allegation of grave misconduct in office - Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 4 of 7 Deposition of Guillaume Gendre Conducted on March 18, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 52 1 Shavon Walker. 2 Q. Okay. All right. 3 And then the email from a 4 Mr. Jeffries -- from you to Mr. Jeffries, that 5 says it's from you to Mr. Jeffries, did you 6 write that? 7 A. It looks like it. 8 Q. Okay. All right. 9 Do you remember writing it? 10 A. I don't recall writing it. I see it, 11 though. 12 Q. Do you have any reason to believe you 13 didn't write it? 14 A. No, I don't have any -- no reason to 15 believe that I did not write it. 16 Q. Okay. All right. 17 Then let me ask you, the first line -- 18 MS. JONES: Ms. Savit, I apologize for 19 interrupting, but I do see that what I 20 believe is the name of the student -- 21 MS. SAVIT: I was about to say that. 22 MS. JONES: -- has not been redacted. Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 5 of 7 Reich, Danielle (DCPS) From: Sent: lo: Cc: SubJect: lmportance: Froml Jeffries, Orndorff (DCPS) Sent: Monday, February 04t20LZ 3:27 PM Gendre, Guillaume (DCPS) Monday, February 04,2013 6:13 PM Jeffries, Orndorff (DCPS) King, Mark (DCPS); Reich, Danielle REaAllegation of Grave misconduct High (DCPS) in office - Shavon Walker lnvestigator Jeff ries, It was brought to my attention over winter break by the LEA representative at Shaw MS upon reviewing the ALT assessment files for Marquelle Wheeler that an IEP for him had been written and finalized without holding an IEP meeting. The original ..àting date had been scheduledfor ttlL6l201-2. since the parent did not show up, Ms. walker dldnotholdameeting, shedidnotreachouttoofficeof special Education, theLEArepresentativeormyselfto request that the meeting be rescheduled. lnstead, she went ahead and wrote and finalized the IEP for Marquelle wheeler on r2120/20t2. updaring new goals and objectives without an IEP team meet¡ng as required by IDEA' She also failed to get the team input to determine if the student qualified for the ALT DC CAS assessment. ln a ddition as evid enced by the tE p document daÌed Lzlzo/2012 availa ble in Easy lEP, she indicated that th ree team rnembers in addition to herself were in attendance to a meetin C on 7212A12012 that never occurred. A meeting sign in sheet (required for any lEp meeting) was never faxed over to Easy lEP, further demonstrating that the meeting did not occur. The fraudulent actions are . lndicating attendance of IEP Team members on a legal IEP document for a meeting that did not occur and for which they did not Partic¡Pate. ¡ Updating an lEp (Writing goals, determining services, deciding accommodations and modification) and finalizing an IEP wÍthout IEP Team members' r Making determination of student non eligibility for DC CAS ALT without an IEP Team present' As soon as lwas made aware of these fraudulent actions, I reported it to office of Special Education and to lnstructional Superintendent l(ing. Upon my return from winter break, I met with Ms. Walker to confirm that the IEP meeting did not occur (She cancelled my L/7 2013 meeting and we agreed to meet on Llt4/20L3). Thls was not a disciplinary meeting but I made sure she had Union representation. Upon confirmation, lchecked with office of General Counsel who recommended that lcall LMER. lspoke with Danielle Reich and she sent an email to School Securityto look into it. Please let me know if you have any other questions' Sincerely, Guillaume Gendre Principal Shaw Middle School 2001 roth st. NW Washington, DC 20001 T 202,673,73201 F 202.6r',3.8543 Å ø rru+sIr /( Tìênônênr Ç"n/re "*t#!"#trr# WALKER V. DC OO13O7 Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 6 of 7 'fo: Gendre, Gulllaume (DCPS) l- Cc: King, Mark (DCPS); Reich, Danielle (DCPS) Subjecc Allegatton of Grave misconduct ln office ' Shavon Walker Mr, Guillaume Gendre - Good Afternoonl I am conducting an official investigation on behalf of the Chancellorinto an allegatîon of.Grave mlsconduct in dffice against Ms. Shavon Walker, Teacher at Shaw Middle School, which occurred on an unspeclfled date. Danielle Relch, Interim Dlrector, Labor Management & Employee Relatlons informed the office of School Securlty that you could furnish the details in regards to the allegation of Grave misconduct in ôff¡ce (submitting IEp (s) containing fraudulent information) involving Ms. Walker, It is imperative that you furnisñ the information tó this oflice so that the investigation into the. . allegatibn can be completed in a timely manner. Please provide the name (s) of the student (s) whJs IEp ls (are) in question, the date that the iEP (s) was (were) submitted, and any additional infbrmãtton that you may deem helpful. In addition, please provide a statement as to how you galn knowledge of the Fraudulent IEP (s), and the action that you took after gaining that knowledge, Should you have any questions or comments, please don't hesitate to contact me. 0,//, rfr/þ,ie* Cnhhal huarüþator 0CP8,íøwrþ 3fi5 l/ ít{,Ø't Á/, â lt/actlrrpa,r 0, ú, zoora 0llø; (zoz/ sra-ozas C,/4 (zo4 rft4lee f*; (24 sz6-66el Save the datel Mayor Gray's 2013 State of the District Address is Tuesday, February sth at 7:00 pm at the Sixth and I Historic Synagogue, Attend in person, watch on QÇ.t!, or follow on Twitter via @maYorvincesr.?v, 2 WALKER V. DC OO13O8 Case 1:15-cv-00055-CKK Document 54-10 Filed 10/28/16 Page 7 of 7 EXHIBIT 7 Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 1 of 7 1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 -------------------------------x 4 SHAVON T. WALKER, : 5 Plaintiff, : Civil Action No. 6 v. : 15-0055 (CKK)(GMH) 7 DISTRICT OF COLUMBIA, : 8 Defendant. : 9 -------------------------------x 10 11 Deposition of ERIN KIMBERLY PITTS 12 Washington, D.C. 13 Tuesday, March 8, 2016 14 10:31 a.m. 15 16 17 18 19 20 Job No. 105171 21 Pages 1 - 164 22 Reported by: Jacquelyn C. Jarboe, RPR Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 2 of 7 Deposition of Erin Kimberly Pitts Conducted on March 8, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 9 1 P R O C E E D I N G S 2 Whereupon, 3 ERIN KIMBERLY PITTS 4 having been first duly sworn, testified as follows: 5 EXAMINATION BY COUNSEL FOR THE PLAINTIFF 6 BY MS. SAVIT: 7 Q Good morning. Could we have your full 8 name, please. 9 A Erin Kimberly Pitts. 10 Q Okay. Ms. Pitts, you're here today for a 11 deposition in the case of Shavon C. Walker vs. 12 District of Columbia. I will be asking you a number 13 of questions, and the Court Reporter will take 14 everything down that's said in this room unless she 15 is specifically asked to go off the record. 16 So because she needs to take down words, 17 please make sure that you answer questions with 18 words as opposed to shakes of the head, or body 19 language, or uh-huh, or something like that. And I 20 know that's hard to do, but please try to do that. 21 A Sure. 22 Q If I ask you a question and you don't Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 3 of 7 Deposition of Erin Kimberly Pitts Conducted on March 8, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 22 1 Q How long have you held that title? 2 A Since October. 3 Q What positions have you held between 2011 4 when you joined DCPS and October of 2015? 5 A My first position was essentially the EEO 6 officer. Then I became the interim director of 7 Labor Management and Employee Relations. We 8 temporarily -- we hired someone into the director 9 role, so I went back to the EEO officer for a time. 10 And then I assumed the director role. 11 Q In October? 12 A No, I assumed the director role -- 13 Q Oh, I'm sorry, yeah. 14 A I was interim from July 2011 through about 15 October 2011. The person we hired as director 16 stayed until about March of 2012, then I assumed the 17 director position from March 2012 to October 2015, 18 at which time my title was changed to deputy chief. 19 Q Did your duties change? 20 A No. 21 Q Tell me what the DCPS Office of Labor 22 Management and Employee Relations do. And do you Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 4 of 7 Deposition of Erin Kimberly Pitts Conducted on March 8, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 71 1 information that I received today." 2 A Right, in this email he does not indicate 3 what information he had received. 4 Q Did he ever tell you in some other 5 fashion? 6 A In the prior email he included the 7 information he'd received. 8 Q And Exhibit 20. That's the revocation of 9 the suspension? 10 A It is. 11 (Pitts Deposition Exhibit 21 was marked for 12 identification and is attached to the transcript.) 13 Q All right, showing you what's been marked 14 as Exhibit 21. Please take a look at that. 15 A Okay. 16 Q Okay. Can you identify that document, 17 please. 18 A This is a notice of termination I issued 19 to Ms. Walker. 20 Q Okay. Who made the decision to terminate 21 Ms. Walker? 22 A A review board that included myself, Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 5 of 7 Deposition of Erin Kimberly Pitts Conducted on March 8, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 72 1 again, the chief of staff of the Office of Human 2 Capital, and a specialist in the Office of Human 3 Capital. 4 Q Who was the chief of staff at the time? 5 A Anna Gregory. 6 Q And do you happen to know what her 7 background was, her training background was? 8 A She -- 9 MS. FEATHERSTONE: Object to the form. 10 You can answer. 11 A She -- prior to becoming chief of staff, 12 she led the impact team, our teacher evaluation 13 team. I know she has a master's, I'm not sure what 14 discipline. And then she was a teacher. She's held 15 other positions as well, but -- you know, in the 16 education sphere, and I don't remember all of the 17 titles. 18 Q Do you know whether she had had any 19 experience in preparing IEPs within the District of 20 Columbia Public Schools? 21 A I assume so, as a teacher she was involved 22 in IEP meetings. But I haven't talked to her about Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 6 of 7 Deposition of Erin Kimberly Pitts Conducted on March 8, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 73 1 that. 2 Q Okay. And who was the HR specialist who 3 was on board? 4 A Schwanda Barnette. 5 Q Did she have any background in teaching? 6 A I believe so. 7 Q Did she have any background in preparing 8 IEPs within the DCPS special education system? 9 A I don't know. 10 Q And how did your review board arrive at 11 the decision to terminate Ms. Walker's employment? 12 A Sure. We had a worksheet that summarizes 13 most of the Douglas Factors that we think are 14 pertinent to misconduct cases in DCPS. We looked at 15 factors like any prior misconduct the employee had, 16 the employee's record of performance. So impact 17 evaluations. We looked at comparable cases of 18 misconduct, date of hire, those sorts of things. 19 And we looked at the facts of the particular case. 20 MS. SAVIT: Has that worksheet been 21 produced? I don't believe I've seen it. 22 MS. FEATHERSTONE: Are you asking me? Case 1:15-cv-00055-CKK Document 54-11 Filed 10/28/16 Page 7 of 7 EXHIBIT 8 Case 1:15-cv-00055-CKK Document 54-12 Filed 10/28/16 Page 1 of 3 Case 1:15-cv-00055-CKK Document 54-12 Filed 10/28/16 Page 2 of 3 Case 1:15-cv-00055-CKK Document 54-12 Filed 10/28/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SHAVON T. WALKER, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant. Case No. 1:15-CV-00055 (CKK) O R D E R Upon consideration of the Defendant District of Columbia’s Motion for Summary Judgment, the Memorandum of Points and Authorities filed in support thereof, District’s Statement of Undisputed Material Facts, plaintiff’s opposition thereto, if any, and the entire record herein, and it appearing to the Court that the motion should be granted, it is by the Court this day of , 2016; and it is hereby: ORDERED that Defendant District of Columbia’s Motion is GRANTED for the reasons set forth in the Motion; and it is, FURTHER ORDERED: that judgment as a matter of law is hereby entered in favor of the District of Columbia. _________________________________ The Honorable Colleen Kollar-Kotelly U.S. District Court for the District of Columbia Case 1:15-cv-00055-CKK Document 54-13 Filed 10/28/16 Page 1 of 1