Leongini v. National Association of Water Companies ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARYBETH LEONGINI,
Plaintiff,
v. Civil Action No. 1:20-cv-02502 (CJN)
NATIONAL ASSOCIATION OF WATER
COMPANIES, et al.,
Defendants.
MEMORANDUM OPINION
Marybeth Leongini brought this suit in D.C. Superior Court, alleging that her former
employer and its Chief Executive Officer discriminated against her based on her marital status and
then retaliated against her after she complained. See generally Compl., ECF No. 1. Defendants
removed the case to federal court and shortly thereafter moved to dismiss the complaint for failure
to state a claim. See Fed. R. Civ. P. 12(b)(6). For the reasons stated below, Defendants’ Motion
is granted in part and denied in part.
I. Background
Leongini began working for the National Association of Water Companies, a non-profit
corporation representing regulated water and wastewater companies throughout the United States,
in 2012. Compl.¶ 17.1 Initially, she served as the Association’s Director of Communications at
its headquarters in Washington, D.C. Id. Six years later, the Association’s Board of Directors
1
The following factual summary is drawn from the facts alleged in the Complaint, documents
attached as exhibits or incorporated by reference in the Complaint, and matters about which the
Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 625
(D.C. Cir. 1997).
1
asked Leongini to serve as interim Executive Director. Id.¶ 19. Leongini alleges that while
serving as interim Executive Director, the Association asked her to take on the duties of the
Executive Director while also continuing to perform the tasks she performed as Director of
Communications. Id. According to the Complaint, Leongini excelled in her new role, so much so
that the then-Chairman of the Association’s Board told Leongini that she would receive a raise and
a new title (Vice President), and that when the Association’s headquarters moved to Philadelphia,
she could continue to work out of the Washington, D.C. office. Id. ¶ 22. But, Leongini alleges,
the Association reneged on those promises.
The trouble for Leongini started in August 2018 when the Association hired Robert
Powelson as its Chief Executive Officer. Compl ¶ 22. Powelson, according to the Complaint,
“[a]lmost immediately” subjected Leongini “to hostile and disparate treatment”—treating her less
favorably than her married colleagues. Id. ¶ 24. For instance, Powelson increased Leongini’s
workload while lightening the load for her married peers, Compl. ¶ 35; blamed Leongini for
shortcomings while her married coworkers avoided criticism, Compl. ¶ 38; and denied Leongini
permission to leave work early, while granting her married colleagues’ requests for extended leave
or to work from home, Compl. ¶ 49.
Leongini voiced concerns about this treatment. Less than a year after the Association hired
Powelson, Leongini complained to him and pointed out that “she was the only one on the team
that he regularly screamed at, and that she never heard him raise his voice to Christina Costello or
April Ballou”—two of Leongini’s married colleagues. Compl. ¶ 53. Two weeks after this
conversation, Powelson “inexplicably zeroed out” Leongini’s accrued paid time off. Id. ¶ 56.
When Leongini inquired, Powelson informed her that there had been a change in the Association’s
paid time off policy. Id.
2
Two months later, Powelson criticized Leongini for not turning in expense reports in a
timely manner. Compl. ¶¶ 75–80. Leongini alleges that Powelson contrasted this performance
with that of her married colleagues, saying that Leongini’s married colleagues had no trouble
getting their own reports in, despite having responsibilities to spouses and children at home. Id.
Shortly thereafter, Powelson told Leongini that she would no longer be able to work from
the Washington, D.C. office and would instead need to relocate to the new headquarters in
Philadelphia. Compl. ¶ 82. Every other staff member in the Washington office—all of whom
were married—was permitted to continue working from the Washington office. Id.
In January 2020, the Association terminated Leongini. Compl. ¶ 84. Although the
rationale for the termination was not fully explained to her, Powelson did say that her failing timely
to complete her expense reports was the “last straw.” Compl. ¶ 85. Leongini alleges that, at the
time of her termination, she was entitled to 26 weeks of severance pay, Compl. ¶ 90; 18 earned
vacation days, Compl. ¶ 91; 200 hours of paid time off, Compl. ¶ 91; and her 2019 year-end bonus,
Compl. ¶ 92.
Eight months after her termination, Leongini filed this suit against the Association and
Powelson in the D.C. Superior Court, alleging claims of discrimination and retaliation (and aiding
and abetting of discrimination and retaliation) under the D.C. Human Rights Act (“DCHRA”); and
claims for unpaid wages under the D.C. Wage Payment and Collection Law (“DCWPCL”). See
generally Compl. Defendants removed to this Court and moved to dismiss the complaint for
failure to state a claim. See generally Defs.’ Mot.
II. Standard of Review
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff the benefit
3
of all inferences that can be derived from the facts alleged.” Holy Land Found. for Relief & Dev.
v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (internal quotation omitted). Although the Court
accepts all well-pleaded facts in the complaint as true, “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation
to provide the grounds of [its] entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotations and
citations omitted). The claim to relief must be “plausible on its face,” and a plaintiff’s pleadings
must “nudge[ the] claims across the line from conceivable to plausible.” Id. at 570.
III. Analysis
A. Discrimination Claims
Defendants begin by challenging Leongini’s discrimination claims. For a discrimination
claim (and an aiding and abetting discrimination claim) under the DCHRA to survive a motion to
dismiss, a plaintiff must allege well-pleaded facts from which a reasonable finder of fact could
infer that (1) she is a member of a protected class; (2) that she suffered an adverse employment
action; and (3) that the unfavorable action gives rise to an inference of discrimination. Stella v.
Mineta, 283 F.3d 135, 145 (D.C. Cir. 2002). The Parties agree that the Complaint properly alleges
that Leongini is a member of a protected class under the DCHRA. Yet they disagree about whether
the second and third elements have been properly alleged. Defs.’ Mot. at 11–15.
Defendants first argue that the Complaint does not properly allege that Leongini suffered
an adverse employment action. Defs.’ Mot. at 11. To make out this second prong, a plaintiff must
allege facts showing “a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
4
significant change in benefits.” Walden v. Patient-Centered Outcomes Research Inst., 304 F.
Supp. 123, 133 (D.D.C. 2018). While an adverse employment action covers actions that may not
result in “readily quantifiable losses,” it is not so broad as to encompass every action that makes
an employee “unhappy.” Russell v. Principi, 25 F.3d 815, 818 (D.C. Cir. 2001). The key question
is whether the employee experienced a “tangible change in the duties or working conditions
constituting a material employment disadvantage.” Walden, 304 F. Supp. at 133–34.
To be sure, as Defendants note, Leongini’s Complaint contains numerous examples of
alleged actions which alone did not result in a tangible change of Leongini’s duties or working
conditions. For example, the Complaint alleges that Powelson screamed at Leongini, Compl. ¶ 71;
accused her of soliciting compliments from member companies, Compl. ¶ 40, 45; told her that her
colleagues did not like her, Compl. ¶ 52; and failed to respond to her emails, Compl. ¶ 70. These
actions, even when taken in conjunction, do not represent an adverse employment action. See,
e.g., Walden, 304 F. Supp. 3d at 134 (holding that a laundry list of perceived slights including
several negative performance reviews and assessments, denied paid-time-off requests, and an
increased workload did not constitute an adverse unemployment actions); Peters v. District of
Columbia, 873 F. Supp. 2d 158, 190 (D.D.C. 2012) (finding allegations that supervisor treated
plaintiff “like a whipping boy” by “scream[ing] at, talk[ing] down to, and point[ing] her finger” at
plaintiff did not rise to the level of adverse action); Russ v. Van Scoyoc Assoc., Inc., 122 F. Supp.
2d 29, 32 (D.D.C. 2000) (“[I]t is clear that being yelled at by your supervisor does not rise to the
level of an adverse employment action.”).
But the Complaint contains more than just these “scattershot” allegations. Walden, 304 F.
Supp. 3d at 133. For instance, the Complaint alleges that Powelson fired Leongini and “zeroed
out” the paid time off she had accrued. Compl. ¶¶ 56, 84. Defendants fail to truly grapple with
5
this contention, and instead concede in a footnote that the termination of employment and
elimination of Leongini’s accrued paid time off “may amount to an adverse employment action.”
Def.’s Mot. at 11 n.4. There’s no serious question that such steps constitute adverse employment
actions. See Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (listing paradigmatic
examples of adverse employment actions as “hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing significant change in benefits.”). The
only remaining question, then, is whether the Complaint alleges facts sufficient to allow the
reasonable inference that Defendants took those actions because Leongini was unmarried.
It does. The Complaint alleges that Powelson increased Leongini’s workload while
lightening the load for her married peers, Compl. ¶ 35; blamed Leongini for shortcomings while
her married coworkers escaped criticism, Compl. ¶ 38; and denied Leongini permission to leave
work early to avoid traffic, while granting her married coworkers’ extended leave and work from
home requests, Compl. ¶ 49. It further alleges that Powelson, when reprimanding Leongini for
failing to complete her expense reports, specifically drew attention to her marital status. He
allegedly told Leongini that her married “colleagues travel and they leave their spouses and
children and still manage to get their expenses in on time.” Compl. ¶ 77. Powelson later cited
Leongini’s tardy expense reports as the “final straw” when he terminated her. Compl. ¶ 85. These
allegations, if true, would permit a reasonable juror to conclude that Leongini was fired because
of her unmarried status.
The Court holds that Leongini has alleged facts sufficient to state a claim of discrimination
and aiding and abetting discrimination under the DCHRA. Defendant’s Motion to Dismiss as to
these claims is denied.
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B. Retaliation Claims
Leongini alleges that Defendants also retaliated against her after she complained about her
treatment. Compl. ¶ 114–38. Defendants argue that this claim should be dismissed because the
Complaint fails to make out a prima facie case of retaliation (and aiding and abetting retaliation)
under the D.C. Human Rights Act. Def.’s Mot., at 18–26.
“The elements of a retaliation claim under the DCHRA are the same as those under the
federal employment discrimination laws.” McCaskill, 36 F. Supp. at 154 (quoting McCain v. CCA
of Tenn., Inc., 254 F. Supp. 2d 115, 124 (D.D.C. 2003)). For a retaliation claim to survive a motion
to dismiss, a plaintiff must allege facts giving rise to the reasonable inference that “(1) she engaged
in a statutorily protected activity; (2) the employer took an adverse employment action against her;
and (3) the adverse action was causally related to the exercise of her rights.” Id. (quoting Holcomb
v. Powell, 433 F.3d 889, 901–02 (D.C. Cir. 2006)).
Defendants’ chief argument is that the Complaint does not allege facts that Leongini
2
participated in a statutorily protected activity. To make such a showing, a plaintiff must
demonstrate that she made a complaint of discrimination to a superior. Tsehaye v. William C.
Smith & Co., 402 F. Supp. 3d a185, 197 (D.D.C. 2005). This “encompasses utilizing” both formal
and “informal grievance procedures such as complaining to management or human resources about
the discriminatory conduct.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 200 (D.D.C.
2012). But “[n]ot every complaint garners its author protection.” Id. at 205 (quoting Broderick v.
2
Defendants also claim that Leongini fails to state a prima facie retaliation claim because she
does not allege that the Association took an adverse employment action against her. But this
argument lacks merit. Leongini alleges that, after she had complained to Powleson, the
Association zeroed out her accrued paid time off, see Compl. ¶ 56, and fired her, see Compl.¶ 84.
These are sufficient allegations of an adverse employment action under the DCHRA. See Propp
v. Counterpart Int’l, 39 A.3d 856, 866 (D.C. 2012) (citing Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 77–78 (2006).
7
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)). “While no ‘magic words’ are required,”
Broderick, 437 F.3d at 1232, a complaint “must alert the employer that [the aggrieved employee]
is lodging a complaint about allegedly discriminatory conduct,” not just voicing a generalized
grievance. Howard Univ. v. Green, 62 A.2d 41, 46 (D.C. 1994).
Defendants argue that Leongini’s confrontation with Powelson was insufficient to alert
Powelson (or the Association) to the fact that Leongini was accusing Powelson of discrimination
based on marital status. Defs.’ Mot. at 19–24.3 Although the Complaint is indeed “light on the
details” of the confrontation, Ingram v. D.C. Child & Family Servs. Agency, 394 F. Supp. 3d 119,
125 (D.D.C. 2019) (holding that despite being “light on the details” of an employee’s exchange
with her employer, the Complaint properly alleged a protected activity under the DCHRA), it does
allege that Leongini “addressed Powelson’s treatment of her”; “point[ed] out that she was the only
one on the team that he regularly screamed at”; and compared Leongini to her married
coworkers—Christine Costello or April Ballou—to whom Powelson never raised his voice.
Compl. ¶ 57. Taking all inferences in Leongini’s favor, it could be inferred that Leongini’s
conversation with Powelson, specifically the references to other married women in the office,
would have been enough to alert Powelson that Leongini was alleging discrimination based on her
marital status. Therefore, construing the Complaint liberally, the Court finds that Leongini has
sufficiently alleged that her conversation with Powelson was a protected activity.
3
The Parties also disagree about whether Leongini engaged in a statutorily protected activity
when she complained to employees of the Association’s member companies. See Defs.’ Mot. at
20; Pl.’s Opp’n at 8. Because the Court finds that, as alleged, Leongini’s complaint to Powell
permits a finder of fact to draw a reasonable inference that Leongini engaged in a protected
activity under the DCHRA, the Court need not (at this stage of the litigation) address the
challenges to these other potentially protected activities.
8
Defendants also argue that Leongini has not properly pleaded facts sufficient to raise a
reasonable inference that a causal connection existed between the statutorily protected activity and
the adverse employment action taken against her. See Siddique v. Macy’s, 923 F. Supp 2d 97, 107
(D.D.C. 2013). Defendants claim that neither the zeroing out of Leongini’s paid time off nor her
termination can be tied to her statutorily protected complaint. Defs.’ Mot. at 26.
In particular, as to Leongini’s termination, Defendants argue that it happened six months
after Leongini complained, and thus that no reasonable juror could conclude that Powelson was
retaliating against her for her protected activity. Defs.’ Mot. at 26. It is true that “even at the
prima facie stage, courts in the district generally require close temporal proximity in order to
establish causation in the absence of direct evidence.” Durant v. District of Columbia, 932 F.
Supp. 2d 53, 72–73 (D.D.C. 2013). And the Court of Appeals has held that periods as short as
two-and-a-half months are alone insufficient to raise an inference of retaliation. See Taylor v.
Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009). But the Complaint alleges that Leongini’s
termination was part of a pattern of retaliatory behavior that began only two weeks after she
engaged in a protected activity, which included zeroing out Leongini’s paid time off, Compl.
¶ 121; accusing her of credit card fraud, Compl. ¶ 121; and warning staff members that there would
be consequences for making complaints to the Board, Compl. ¶ 120. This pattern of alleged
behavior toward Leongini bridges the temporal gap between her protected activity and her
termination. The Court finds that at this early stage Leongini’s allegations are sufficient to lead to
the reasonable inference that her termination was due to her protected activity. See Gipson v. Wells
Fargo N.A., 460 F. Supp. 2d 15, 29 (D.D.C 2006) (holding that temporal proximity is given less
weight where a plaintiff presents other evidence of causality for retaliation).
9
As to the zeroing out of Leongini’s paid time off, Defendants argue that the Complaint
does not allege enough facts to raise a reasonable inference that Defendants did so because she
complained to Powelson. See Defs.’ Mot. 26. They argue that the only reasonable inference is
that the deletion of Leongini’s paid time off hours was part of a larger change in company policy.
They point to Powelson’s alleged response to Leongini’s inquiry about the paid time off, in which
Powelson told Leongini that the zeroing-out process was due to a “change in policy.” Compl.
¶ 56. Although Defendants’ interpretation of the facts may very well be a reasonable one, it is far
from the only reasonable inference that can be drawn, and on a motion to dismiss, the Court must
construe all reasonable inferences in a plaintiff’s favor. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (“We assume the truth
of all well-pleaded factual allegations and construe reasonable inferences from those allegations
in a plaintiff’s favor.”).
In this circuit, “a close temporal relationship may alone establish the required causal
connection,” Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir 2003), so long as the
“two events are very close in time.” Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir 2007)
(internal quotations omitted). Here, Leongini alleged that two weeks after she complained, her
paid time off was zeroed-out. At the motion to dismiss stage, a two-week gap is sufficient to raise
an inference of a causal connection. See, e.g., Hamilton v. Geithner, 666 F.3d 1344, 1357–58
(D.C. Cir. 2012) (finding a gap of one month sufficient to raise an inference of causality);
Woodruff, 482 F.3d at 529 (concluding that a period of “less than a month” sufficient to raise the
inference); Singletary, 351 F.3d at 525 (holding that the district court erred when it did not found
a month-long gap insufficient to raise a reasonable inference of causality).
10
Because the Complaint alleges facts sufficient to lead to a reasonable inference that
Leongini satisfied each required element of her prima facie retaliation and aiding and abetting
retaliation claims, the Court holds that she has properly stated retaliation claims for which relief
can be granted. Those claims therefore survive Defendants’ Motion to Dismiss.4
C. D.C. Wage Payment and Collection Law Claim
Defendants also challenge Leongini’s final claim under the D.C. Wage Payment and
Collection Law (“DCWPCL”). Leongini claims that she is entitled to (1) severance pay under the
Association’s Severance Policy contained in the Employee Handbook; (2) 18 days of paid time off
(PTO); (3) an additional 203.5 hours of accrued PTO that Pawelson eliminated when enacting a
PTO policy change; (4) her 2019 bonus, and (5) statutory damages based on the belated delivery
of her final paycheck. See Compl. ¶ 140–45.
The DCWPCL requires that “[w]henever an employer discharges an employee, the
employer shall pay the employee’s wages earned not later than the working day following such
discharge.” D.C. Code § 32-1303(1). The DCWPCL defines “wages” as “all monetary
compensation after lawful deductions owed by an employer, whether the amount owed is
determined on a time, task, piece, commission, or other basis of calculation.” D.C. Code § 32-
1301(3). This entitlement includes all bonuses, commissions, fringe benefits paid in case, overtime
premiums, and other remuneration promised or owed under (1) a written or oral contract for
employment, (2) a contract between the employer and a third party, or (3) District or federal law.
4
Leongini also seeks punitive damages for each DCHRA claim. See Compl. ¶¶ 105, 113, 130,
138. Defendants argue (briefly) that these claims should be dismissed because the Compliant
fails to allege facts sufficient to support a finding that the Defendants acted with actual malice, a
required element of a punitive damages claim under the DCHRA. See Daka, Inc. v. Breiner, 711
A.2d 86, 98 (D.C. 1998); Arthur Young & Co. v. Sutherland, 631 A.2d 354, 372 (D.C. 1993).
The Court disagrees. The Complaint includes various allegations that, if true, could lead a
reasonable juror to conclude that Powelson acted with actual malice toward Leongini.
11
See id. Importantly, a “discretionary payment” does not constitute a “wage” under the DCWPCL
because such payments “are not owed, but are given only by leave of the employer.” Dorsey v.
Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 36 (D.D.C. 2010) (emphasis added). Whether a
payment is “discretionary” turns on “the conditions set for the award of such compensation” and
if “the employee was actually entitled or owed the payment.” Rothberg v. Xerox Corp., 2016 WL
10953882, at *16 (D.D.C. 2016), aff’d 709 F. App’x 1 (D.C. Cir. 2017).
Severance Pay. The Complaint alleges that Leongini is entitled to 26 weeks of severance
pay as guaranteed by the Association’s Severance Policy. See Compl. ¶ 141. That policy,
according to the Complaint, is outlined in an addendum to the Employee Handbook, which (as
quoted in the Complaint) states that “[r]egular severance benefits will be granted according to the
following schedule of benefits.” Id. Despite briefly quoting from the addendum, the Complaint
does not include the schedule of benefits, and the addendum is not attached to the Complaint.
Instead, the Complaint simply alleges that based on the unattached schedule of benefits Leongini
is “entitled to 26 weeks of severance,” or “$90,458.29.” Id.Defendants argue severance cannot be owed because the addendum, and the severance
policy allegedly contained therein, do not exist. See Defs.’ Mot. at 28. Defendants surmise that
Leongini might be relying on a previous Employee Handbook, which contained a severance policy
in an accompanying addendum. Id. But they insist that the current handbook, which was updated
in 2016, no longer includes such an addendum and so Leongini’s claim must fail because she
cannot point to evidence demonstrating that she is owed severance.5
5
The current Employee Handbook, as Defendants point out, includes a provision stating that it
“supersedes all previous Company handbooks and policies, other than the policy of at-will
employment.” Nat’l Ass’n of Water Cos. Employee Handbook, Exhibit A, ECF No. 4-1, at 8.
12
It may very well be the case that the relevant Employee Handbook was not accompanied
by an addendum guaranteeing severance payments, but the Court cannot wade into this factual
dispute now. Instead, the Court must take all well-pleaded allegations as true. Bell Atl. Corp. v.
Twombly, 550 U.S. at 555. Leongini alleges that the addendum to the Employee Handbook
outlined that she was entitled to 26 weeks of severance pay. Compl. ¶ 141. If true, this would
entitle Leongini to relief under the DCWPCL. The Court therefore finds that Plaintiff’s DCWPCL
claim as to her severance pay survives Defendants’ Motion to Dismiss.
Bonus. The Complaint also alleges that Leongini is entitled to a roughly $8375 bonus that
she claims she would have received in January 2020, the same month she was terminated. See
Mot. at 30; see also Compl. ¶ 143. “Bonuses are covered under the D.C. Wage Payment Act only
when they are owed,” Dorsey v. Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 36 (D.D.C. 2010),
meaning that they cannot be subject to an employer’s discretion, but must be “automatic and
mandatory upon satisfaction” of specific conditions. Molock v. Whole Foods Market, Inc., 297 F.
Supp. 3d 114, 134 (D.D.C. 2018).
The Association’s Employee Handbook, which Leongini incorporates by reference into her
Complaint to demonstrate that the bonus was owed, see Marshall v. Honeywell Tech. Solutions,
Inc., 536 F. Supp. 2d 59, 65 (D.D.C. 2008), states: “Each year in December, the [Association]
awards individual bonuses for employees that meet or exceed performance criteria and individual
goals.” Nat’l Ass’n of Water Cos. Employee Handbook, Exhibit A, ECF No. 4-1, at 28. If an
Association employee met those criteria and goals, the bonus payment would be “automatic and
mandatory.” Molok, 297 F. Supp. 3d at 134.
But the Complaint does not say what Leongini’s performance criteria and individual goals
were, and it does not say that she successfully accomplished them. The Complaint therefore does
13
not plead sufficient facts to substantiate the claim that the Association owed Leongini a bonus.
See Brady v. Liquidity Services, Inc., 2018 WL 6267766, *4 (D.D.C. 2018) (holding that an
employee plaintiff failed to state a DCPWCL claim to a bonus when the Complaint contained “no
allegations that [the employee] met those objectives” required to be entitled to the bonus) The
DCWPCL claim as to Leongini’s bonus is dismissed.
Paid Time Off. The Complaint also alleges that Leongini is entitled to 203.5 hours of
PTO, which Powelson allegedly eliminated in August 2019.6 Defendants, again pointing to the
Employee Handbook, argue that Leongini has failed to properly allege that these hours were
actually owed. Defs.’ Mot. at 28. According to the Handbook, each Association employee
receives eighteen days of paid time off per year. That time must be used within the calendar year
it is issued and cannot be carried over to the next year—unless the employee seeks and is granted
an exemption, in which case the employee is permitted to carry over up to 70 hours. See Nat’l
Ass’n of Water Cos. Employee Handbook, Exhibit A, ECF No. 4-1, at 8. Defendants note that in
order to amass the 203.5 hours, Leongini would have needed to receive an exemption. Because
the Complaint does not allege that Leongini sought an exemption (or discuss any of the intricacies
of the paid-time-off accruement program), Defendants argue, Leongini has failed to create even
an inference that the 203.5 hours were actually owed to her. Id.The Court disagrees. Leongini does not allege that, if she were to meet certain conditions,
she would accrue PTO. See Brady, 2018 WL 6267766 at *4. Rather, she alleges that she had
6
The Complaint also alleges that the Association owed Leongini an additional $11,561.76—the
value of her eighteen unused vacation days. See Compl. ¶ 91. Shortly after filing her Complaint,
the Association sent Leongini a check for that amount. See September 10, 2020 Ltr. from Cozen
O’Connor to Carla D. Brown, ECF No. 4-4, at 1. The Parties agree that this ends the matter as to
the previously unpaid eighteen unused vacation days, although, as discussed below, they dispute
the amount of liquidated damages that result under the DCWPCL for the delayed payment.
14
already accrued the PTO, such that those hours were no longer conditional or left to the discretion
of the employer (like her bonus). They were therefore already owed to her, she alleges, and then
taken away by Powelson—an action Powelson has acknowledged, according to the Complaint.
Compl. ¶ 56. This claim therefore survives Defendants’ Motion to Dismiss.
Liquidated Damages. The Complaint also alleges that Leongini is entitled to liquidated
damages under the DCWPCL because her wage payments were (and, at least as to some wages
allegedly owed, continue to be) delayed. See Compl. ¶ 139–45.
Defendants raise a discrete challenge to these claims, arguing only that the liquidated
damages claims involving Leongini’s final paycheck and vacation pay owed should be dismissed.
Def.’s Mot. at 32–33. The Parties agree that Defendants have paid some of the liquidated damages
allegedly owed, yet they disagree about whether the amount paid covers the Association’s
obligation under the DCWPCL.
The DCWPCL “provide[s] for liquidated damages in addition to recovery for unpaid
wages.” Reyes v. Kimuell, 270 F. Supp. 3d 30, 36 (D.D.C. 2017). An employer is liable for
liquidated damages under the DCWPCL when it fails to deliver to a terminated employee her
earned wages by the first working day following the employee’s discharge. See D.C. Code § 32-
1303(1). Liquidated damages are calculated as the lesser of “an amount equal to treble the unpaid
wages” or ten percent of the unpaid wages “for each working day during which such failure shall
continue after the day upon which payment is hereunder required.” D.C. Code § 32-1303(4).
Looking first at Leongini’s final paycheck, the Parties agree that her net final paycheck
totaled $1,278.96 and that she is entitled to ten percent of that sum for “working day[s]” that passed
“after the day upon which payment” was required. See September 10, 2020 Ltr. from Cozen
O’Connor to Carla D. Brown, ECF No. 4-4, at 1; Pl.’s Opp’n, at 11. The Complaint alleges that
15
Leongini was fired on January 6 and did not receive her final paycheck until January 15. See
Compl. ¶ 144. The Parties (as they must at this stage of the litigation) take these facts as true.
They disagree only about the calculation of liquidated damages. Specifically, they disagree about
the number of “working day[s]” that passed “after the day upon which payment” was required.
Leongini claims that six working days passed, while Defendants argue that five working days is
correct. Defs.’ Mot. at Pl.’s Opp’n at 11.7
The dispute boils down to whether January 7—the day on which payment was due to
Leongini under the DCWPCL—is included in the working days calculation. A plain reading of
the statute shows it is not. The DCWPCL provides that liquidated damages shall be calculated
“for each working day during which such failure [to pay the employee her owed wages] shall
continue after the day upon which payment is hereunder required.” D.C. Code § 32-1303(4)
(emphasis added). Payment was required on January 7, and the counting of working days begins
on the next day after the payment was due, i.e., January 8. The Court therefore agrees with
Defendants that liquidated damages for the delayed final paycheck should only be calculated for
five days, and since the Association has already paid Leongini for five days’ worth of liquidated
damages, Pl.’s Opp’n at 11, the claim as to her final paycheck is dismissed.
As to the liquidated damages that the Association allegedly owe for its delay in paying
Leongini for her unused vacation days, the Parties agree that a payment of treble damages is
appropriate. Yet they again disagree about how to calculate that amount. Leongini argues that she
is entitled to $23,583.99 in liquidated damages—or three times the $7,861.33 she was actually
owed for her accrued vacation—plus the actual amount of $7,861.33. Defendants argue that their
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The Parties stipulate that January 11 and 12 were weekend days, in which liquidated damages
did not accrue.
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payment of $15,722.66 in liquidated damages—or twice the amount Leongini alleges she was
owed for her accrued vacation—is correct on the ground that the DCWPCL requires a total
payment of three times the wages owed.
Plaintiff has the better argument. The DCWPCL is clear: Employers are “additionally
liable” for “liquidated damages” when the employer fails to make timely payment of an
employee’s earned wages. D.C. Code § 32-1303(4). The liquidated damages are provided on top
of the earned wages owed. See Amaya v. Logo Enterprises, LLC, 251 F. Supp. 3d 196, 201 (D.D.C.
2017). Therefore, taking the allegations in the Complaint as true as the Court must, liquidated
damages would total $23,583.99—three times the underpayment—not $15,722.66. This portion
of the liquidated damages claim therefore survives Defendants’ Motion to Dismiss.
IV. Conclusion
For the reasons discussed above, Defendants’ Motion to Dismiss, ECF No. 4, is denied in
part and granted in part.
DATE: August 25, 2021
CARL J. NICHOLS
United States District Judge
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