Fowler v. Government of the District of Columbia ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARGARET FOWLER
Plaintiff,
v. Civil Action No. 18-634 (RDM)
DISTRICT OF COLUMBIA et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ motion to dismiss Plaintiff’s second
amended complaint. Dkt. 34. Plaintiff, Margaret Fowler, asserts three claims against
Defendants, the Alcoholic Beverage Regulation Administration (“ABRA”) and the District of
Columbia. In Count I, she alleges that the ABRA discriminated against her by creating a hostile
work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., Dkt. 33 at 4–6 (2d Am. Compl. ¶¶ 36–56). In Count II, she alleges that
the ABRA discriminated against her based on her age in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Dkt. 33 at 6–8 (2d Am. Compl. ¶¶ 57–75).
And, in Count III, she alleges that the ABRA retaliated against her for engaging in protected
equal employment opportunity activity in violation of Title VII. Id. at 8 (2d Am. Compl. ¶¶ 76–
80). Defendants move to dismiss all three counts for failure to state a claim. Dkt. 34.
For the reasons explained below, the Court will GRANT Defendants’ motion to dismiss.
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I. BACKGROUND
For purposes of Defendants’ motion to dismiss, Plaintiff’s factual allegations are taken as
true. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
Fowler is a 63-year-old woman, who has worked for the ABRA since 1987. Dkt. 33 at 2
(2d Am. Compl. ¶¶ 7–8). She has served as a Licensing Specialist, a Grade 11 position, since
March 1994. Id. (2d Am. Compl. ¶ 8). In July 2016, her supervisor, Sean Gordy, requested that
Kathy Kelly, one of Plaintiff’s Grade 11 counterparts, remove approximately ten boxes of files
from Plaintiff’s desk, without advance notice. Id. at 2, 4 (2d Am. Compl. ¶¶ 9–10, 37).
According to Plaintiff, the removal of those files interfered with her ability to perform her work
because she did not “know exactly which client files she had and how much work needed to be
done to complete the file and populate the information in the computer.” Id. at 5 (2d Am.
Compl. ¶ 38). Then, in November 2016, Gordy removed the remainder of Plaintiff’s files from
her desk without explanation and placed Kelly in charge of Plaintiff’s files. Id. at 2 (2d Am.
Compl. ¶¶ 9–10). To overcome the difficulties posed by the removal of her files, Plaintiff had to
work “extended hours” without compensation. Id. at 6 (2d Am. Compl. ¶ 49).
The removal of Plaintiff’s files resulted in a confrontation in November 2016. After
Plaintiff received an inquiry from “a customer” and could not locate the relevant file, she asked
Gordy about its whereabouts. Id. at 5 (2d Am. Compl. ¶ 39). Gordy said that “he would provide
her with the file” but failed to do so “in a timely manner,” prompting Plaintiff to request the file
from Kelly. Id. (2d Am. Compl. ¶¶ 39–40). Kelly, in turn, refused to provide Plaintiff with the
file without Gordy’s concurrence. Id. (2d Am. Compl. ¶ 40). Not only did Plaintiff have to
await Gordy’s approval to gain access to the file, but, after instructing Kelly to release the file,
Gordy “began to yell that [Plaintiff was] ‘to go through him [to] retrieve her files.’” Id. (2d Am.
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Compl. ¶¶ 40–41). Fowler asked, “[W]hy are you treating me like this[?] [I]t doesn’t make any
sense.” Id. (2d Am. Compl. ¶ 43). In response, Gordy, who “is extremely tall with an athletic
build,” “leaned over and continued yelling at Plaintiff to the point where she felt threatened.” Id.
Gordy continued yelling even as Plaintiff told him that he was humiliating her and asked him to
stop. Id. (2d Am. Compl. ¶ 44). Eventually, Plaintiff began walking toward ABRA Director
Fred Moosally’s office. Id. (2d Am. Compl. ¶ 45). Gordy followed her and, at one point, shoved
her. Id. Plaintiff complained to Moosally about Gordy’s conduct, but Moosally took no action
in response to her complaint. Id. at 3, 5 (2d Am. Compl. ¶¶ 14, 46). He did, however, direct
Plaintiff to speak with ABRA General Counsel Martha Jenkins, but, like Moosally, Jenkins never
followed up on her complaint. Id. at 7 (2d Am. Compl. ¶¶ 65–66).
Meanwhile, on November 3, 2016, the ABRA filed a request with the D.C. Department
of Human Resources (“DCHR”) “for support on a special investigation involving Plaintiff, based
on allegations of employee misconduct and insubordination, including[,] but not limited to,
making threats, behaving in an unstable manner, and exhibiting caustic behavior towards Mr.
Gordy.” Id. at 2–3 (2d Am. Compl. ¶ 11). “[T]he Audit and Special Investigations [] team . . .
met with several witnesses, including various members of the ABRA Licensing Division and
ABRA management to discuss the . . . allegations.” Id. at 3 (2d Am. Compl. ¶ 12). As part of or
in addition to this investigation, the DCHR moved forward on a complaint against Plaintiff that
Moosally forwarded from Gordy. Id. (2d Am. Compl. ¶ 14). Moosally did not mention that
Plaintiff had also complained to him about Gordy. Id.
Plaintiff encountered additional challenges in the workplace throughout 2017. On or
about June 30, 2017, she was placed on a ninety-day Performance Improvement Plan (“PIP”)
“for failure to meet the minimum requirements for her position.” Id. (2d Am. Compl. ¶ 15).
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Prior to issuance of the PIP, Plaintiff’s supervisors had not indicated that her work was less than
satisfactory; indeed, she received a “valued performer” rating in her performance evaluation for
the period of October 1, 2015 to September 30, 2016. Id. (2d Am. Compl. ¶ 16). Plaintiff
alleges that “[t]he American Federation of State, County and Municipal Employees, AFL-CIO,
Local 2743 believes that DCHR failed to properly investigate this matter and placed Plaintiff on
a PIP inconsistent with the personnel regulations.” Id. (2d Am. Compl. ¶ 18). On September 1,
2017, the AFL-CIO Local requested “that all negative documents placed in [Plaintiff’s]
personnel folder [be] removed, and any leave used by [Plaintiff] in connection with this matter
be restored.” Id. (2d Am. Compl. ¶ 19).
Separately, in July 18, 2017, Fowler applied for bereavement leave to attend her ex-
husband’s funeral and to sort out related legal issues. Id. at 7 (2d Am. Compl. ¶ 68). When
Plaintiff was “a younger age,” she was granted bereavement leave—either by Gordy or another
supervisor—to attend her ex-husband’s mother’s funeral. Id. Gordy, however, denied Plaintiff’s
request for leave to attend the funeral of her ex-husband. Id. And, more generally, Gordy
continued to “display[] demeaning behavior” toward Plaintiff. Id. at 5 (2d Am. Compl. ¶ 47).
Plaintiff further alleges that, even though she was “the oldest Grade 11 employee, with
the most experience and training, [she was] . . . overlooked for advancement opportunities to
higher levels.” Id. at 6 (2d Am. Compl. ¶ 59). She was passed over for two promotions for
which she applied, while younger employees with “only one or two-years work experience at
ABRA” received promotions. Id. at 6–7 (2d Am. Compl. ¶¶ 60–62).
Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”) complaint on
December 6, 2017, which the EEOC dismissed on December 8, 2017. Id. at 3 (2d Am.
Compl. ¶ 20). Plaintiff received a right-to-sue letter from the EEOC on December 13, 2017. Id.
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She filed this suit on March 20, 2018, alleging a hostile work environment in violation of Title
VII and age discrimination in violation of the ADEA. Dkt. 1 at 1.
On November 6, 2018, several months after filing suit, Plaintiff received a “Notice of
Proposed Suspension of [Five] Working Days” “based on [her] alleged tardiness and
[non]compliance with Defendant ABRA’s Internal Procedure for Time and Attendance.” Dkt.
33 at 3 (2d Am. Compl. ¶¶ 21–22). The notice alleged that Plaintiff arrived late to work on a
number of occasions. Id. (2d Am. Compl. ¶ 23). But, according to Plaintiff, each time that she
was late for work she “compensated for the time missed by remaining at work past her
designated time to leave.” Id. at 4 (2d Am. Compl. ¶ 24). In contrast to Plaintiff, younger male
employees who arrived late for work were allowed to compensate for the time they missed
without reprimand. Id. (2d Am. Compl. ¶ 25). Plaintiff received the ABRA’s final decision to
suspend her for five days on December 20, 2018. Id. (2d Am. Compl. ¶ 26). She filed a
grievance appealing her suspension on January 15, 2019, but the ABRA upheld the suspension
on February 4, 2019. Id. (2d Am. Compl. ¶¶ 27–28).
On July 31, 2019, Plaintiff received notice that the ABRA planned to terminate her
employment with the agency. Id. (2d Am. Compl. ¶ 30). The notice stated that she was being
removed because she failed to meet her PIP requirements, to carry out her position
responsibilities, to assist customers, and to complete her assigned caseload in a timely manner.
Id. (2d Am. Compl. ¶ 31). Plaintiff appealed the agency’s decision, “citing her belief that she
was being targeted for failure and forced into early retirement.” Id. (2d Am. Compl. ¶ 32). The
ABRA upheld the decision to terminate Plaintiff. Id. (2d Am. Compl. ¶ 34). Plaintiff filed a
claim with the EEOC and received a second right to sue letter. Id. (2d. Am. Compl. ¶ 35).
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After she was terminated, Plaintiff amended her complaint in this action to add a Title
VII retaliation claim. Dkt. 30-2 at 4, 8 (2d Am. Compl. Redline ¶¶ 30–35, 76–80); Dkt. 33 at 4,
8 (2d Am. Compl. ¶¶ 30–35, 76–80). In her Second Amended Complaint, Plaintiff alleges that
Defendants created a hostile work environment in violation of Title VII, Dkt. 33 at 4–6 (2d Am.
Compl. ¶¶ 36–56); discriminated against her on the basis of age in violation of the ADEA, id. at
6–8 (2d Am. Compl. ¶¶ 57–75); and retaliated against her for filing this action in violation of
Title VII, id. at 8 (2d Am. Compl. ¶¶ 76–80).
Defendants move to dismiss for failure to state a claim. Dkt. 34.
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim upon which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating a Rule 12(b)(6) motion, the Court
“must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim to relief,’ and
then determine whether the plaintiff has pleaded those elements with adequate factual support to
‘state a claim to relief that is plausible on its face.’” Blue v. Dist. of Columbia, 811 F.3d 14, 20
(D.C. Cir. 2015) (alterations in original) (internal citation omitted) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675, 678 (2009)). The complaint, however, need not include “detailed factual
allegations” to withstand a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is . . . unlikely,” so
long as the facts alleged in the complaint are “enough to raise a right to relief above the
speculative level.” Id. at 555–56 (internal quotation marks omitted).
In an employment discrimination case, a plaintiff need not plead all elements of a prima
facie case, so long as she alleges facts that render her claim plausible. McManus v. Kelly, 246 F.
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Supp. 3d 103, 112 (D.D.C. 2017). The Court must “assume [the] veracity” of “well-pleaded
factual allegations,” Iqbal, 556 U.S. at 679, and must “grant [the] plaintiff the benefit of all
inferences that can be derived from the facts alleged,” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks omitted). But, even though “detailed
factual allegations” are not required, the complaint must contain “more than labels and
conclusions, [or] a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
at 555.
III. ANALYSIS
A. Claims Against the ABRA
Defendants first argue that the ABRA is non sui juris and therefore is not a proper party
to this suit. Dkt. 34 at 7–8. The Court agrees.
“‘[I]n the absence of explicit statutory authorization, bodies within the District of
Columbia government are not suable as separate entities.’” Scahill v. District of Columbia, 271
F. Supp. 3d 216, 231 (D.D.C. 2017) (alteration in original) (quoting Sibley v. U.S. Sup. Ct., 786
F. Supp. 2d 338, 344 (D.D.C. 2011)); see also Roberson v. D.C. Bd. Higher Educ., 359 A.2d 28,
31 n.4 (D.C. 1976) (explaining that an entity within D.C. government may only be sued if the
entity is statutorily a separate legal entity). Here, the ABRA is an independent agency within
D.C. government overseen by the Alcoholic Beverage Control Board. D.C. Code §§ 25-
201(c)(1), 25-202. Plaintiff points to no provision of law that authorizes suit against the ABRA,
nor is the Court aware of any such authorization. See D.C. Code §§ 25-201, et seq.; see also
Scahill, 271 F. Supp. 3d at 231 (“There appears to be no explicit statutory language in the D.C.
Code authorizing the [D.C. Alcoholic Beverage Control] Board to sue or be sued.”).
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The Court therefore concludes that the ABRA is not subject to suit in its own right and,
accordingly, will dismiss Plaintiffs’ claims against the ABRA.
B. Title VII Hostile Work Environment Against the District of Columbia
Plaintiff alleges that the removal of files from her control, the November 2016 incident
involving yelling and shoving by Gordy, Moosally’s failure to act on her complaint, Gordy’s
ongoing demeaning behavior, and her five-day suspension created a hostile work environment.
Dkt. 33 at 4–6 (2d. Am. Compl. ¶¶ 36–56). As explained below, even if these allegations are
taken as true, they do not state a hostile work environment claim under Title VII. Dkt. 34 at 8–
11.
“A plaintiff asserting a claim based on a hostile work environment faces a high hurdle.”
Fields v. Vilsack, 207 F. Supp. 3d 80, 92 (D.D.C. 2016). “To determine whether an environment
is objectively abusive, courts consider the totality of the circumstances, including the ‘frequency
of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Richardson v. Petasis, 160 F. Supp. 3d 88, 126 (D.D.C. 2015) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); accord Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107
(D.D.C. 2005), aff’d sub. nom. Nurriddin v. Griffin, 222 F. App’x 5 (D.C. Cir. 2007) (“The
workplace environment becomes ‘hostile’ for purposes of Title VII only when the offensive
conduct ‘permeate[s] [the workplace] with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’”) (alteration in original) (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998)). “The standard is meant to be ‘demanding’ enough ‘to
ensure that Title VII does not become a general civility code’ or create liability for ‘the ordinary
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tribulations of the workplace.’” Vilsack, 207 F. Supp. 3d at 92 (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)). Nor is it enough to allege an abusive work environment; the
plaintiff must also allege that the abusive work environment existed because of her Title VII
protected status—in this case, her sex. See Nurriddin, 382 F. Supp. 2d at 107.
Defendants maintain that none of Plaintiff’s allegations satisfy this standard. They argue
that her five-day suspension “constitute[d a] work-related action[] by Plaintiff’s supervisors”
and, therefore, cannot support a discrimination claim, Dkt. 34 at 9–10; that the removal of
Plaintiff’s files, the appointment of Kelly to oversee those files, and Gordy’s yelling at Plaintiff
did not establish a hostile work environment for purposed of Title VII, id. at 8–10; and that
Gordy’s shoving Plaintiff, Moosally’s failure to act on her complaint, and Gordy’s demeaning
behavior were neither severe nor pervasive enough to support Plaintiff’s hostile work
environment claim. Id. at 8, 10–11. More generally, Defendants contend that Plaintiff’s
allegations fail to draw the necessary nexus between the alleged events and Plaintiff’s sex. Id. at
11.
In response, Plaintiff argues that a plaintiff filing a Title VII complaint is not required to
plead facts sufficient to prove each element of the case at the Rule 12(b)(6) motion to dismiss
stage, Dkt. 36-1 at 4. In Plaintiff’s view, she has made sufficient claims to survive a Rule
12(b)(6) motion to dismiss because, as a female employee, she suffered humiliation, invasion of
personal space, yelling, and shoving by a male supervisor, as well as treatment that differed from
that of her younger male colleagues, all of which together satisfy the pleading stage for a Title
VII claim. Id. at 5.
For several reasons, the Court finds that Plaintiff has failed to allege facts sufficient to
state a Title VII hostile work environment claim: Most of Plaintiff’s allegations fail to draw any
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link between the asserted, abusive conduct and her sex, and those allegations that do draw the
required link fail to describe a sufficiently severe and pervasive environment of abuse to state a
claim.
To start, Plaintiff alleges that her files were removed from her control; that Gordy yelled
at her, shoved her, and generally demeaned her. But beyond alleging that she is a woman and
that Gordy is a man, Plaintiff fails to allege any facts that plausibly support her contention that
any of these events occurred because of her sex. The reassigned files, for example, were placed
under the control of Kelly, another woman, and Plaintiff fails to allege any facts that would
permit a plausible inference that Gordy yelled at or shoved Plaintiff because of her sex. The
same is true of Plaintiff’s claim that Gordy engaged in a pattern of “demeaning behavior;” she
alleges no facts that permit a plausible inference that Gordy demeaned her because of her sex.
Without some basis—any basis—to infer that Gordy acted because of Plaintiff’s sex (or some
other protective classification), she cannot state a Title VII hostile work environment claim.
To the extent that Fowler does pleads that any of the allegedly hostile acts occurred
because of her sex, the alleged events were not sufficiently severe or pervasive to state a hostile
work environment claim. She alleges, for example, that Moosally forwarded Gordy’s complaint
to DCHR but not her complaint, Dkt. 33 at 3 (2d Am. Compl. ¶ 14), and that “[y]ounger male
employees who are in similarly situated positions as Plaintiff who arrived late for work[] have
been able to compensate for missing time by remaining at work past [their] designated time,” id.
at 4 (2d Am. Compl. ¶ 25) (emphasis added). “[C]ourts have generally rejected hostile work
environment claims that are based on work-related actions by supervisors.” Wade, 780 F. Supp.
2d at 19. But in any event, even if accepted as true, these isolated incidents do not amount to the
type of severe and pervasively abusive conduct required to state a hostile work environment
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claim. Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (finding the plaintiff’s
“assertion of pervasive and constant abuse [to be] undermined by the sporadic nature of the
conflicts”); see also Franklin v. Potter, 600 F. Supp. 2d 38, 77 (D.D.C. 2009) (“Cobbling
together a number of distinct, disparate acts will not create a hostile work environment, because
‘[d]iscrete acts constituting discrimination or retaliation claims . . . are different in kind from a
hostile work environment claim . . ..’”) (quoting Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C.
2003)).
For the reasons above, the Court concludes that Fowler has not alleged facts sufficient to
state a Title VII hostile work environment claim and will, accordingly, dismiss Count I.
C. ADEA Claim Against the District of Columbia
Plaintiff premises her ADEA claim on the following allegations: Gordy directed the
removal of files from her control; Moosally failed to act on her complaint; Gordy denied her
request for bereavement leave; Plaintiff did not receive two promotions; and Plaintiff was
subjected to a five-day suspension. Dkt. 33 at 6–8 (2d Am. Compl. ¶¶ 57–75). Defendants
contend that Plaintiff’s ADEA claim fails for a variety of reasons: Plaintiff failed to bring this
action within 180 days of receiving her EEOC right-to-sue letter; she failed to timely exhaust
with respect to most of her allegations; and, in any event, Plaintiff’s second amended complaint
fails to include allegations sufficient to state a plausible claim that any of the these actions were
taken because of her age. Dkt. 34 at 13–17.
Although Plaintiff opposes Defendants’ motion to dismiss her hostile-work-environment
and retaliation claims, she fails to respond to any of Defendants’ arguments with respect to her
ADEA claim. “‘[W]hen a plaintiff files an opposition to a dispositive motion and addresses only
certain arguments raised by the defendant, a court may treat those arguments that the plaintiff
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failed to address as conceded.’” Hamilton v. United States, No. 19-1105 (RDM), 2020 WL
6709758, at *4 (D.D.C. Nov. 16, 2020) (alteration in original) (quoting Hopkins v. Women’s
Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003)); see also Perisic v.
Kim, No. 18-cv-2038 (EGS), 2019 WL 5459048, at *13 (D.D.C. Oct. 24, 2019) (same); Wang v.
WMATA, 206 F. Supp. 3d 46, 65–66 (D.D.C. 2016) (same). Here, moreover, Plaintiff is
represented by counsel, who offers no argument respecting her ADEA claim and asserts only that
she has “pled plausible facts to assert . . . viable Title VII hostile work environment and
retaliation claims,” Dkt. 36-1 at 7 (emphasis added), and who has had seven months to dispute
Defendants’ contention that Plaintiff has “conceded that . . . the Court should dismiss her ADEA
claim[,]” Dkt. 37 at 1, but has said nothing. The logical inference is that, faced with the
numerous problems with her ADEA claim described in Defendants’ brief, Plaintiff has conceded
the point.
The Court therefore concludes that Plaintiff has conceded that Count II of the second
amended complaint fails to state a claim and will, accordingly, dismiss Count II.
D. Title VII Retaliation Against the District of Columbia
Finally, Plaintiff amended her complaint to allege that she was terminated in retaliation
for “fil[ing] a complaint with the Equal Employment Opportunity Commission and intiat[ing]
[this] litigation to vindicate [] her claims for employment discrimination.” Dkt. 33 at 8 (2d Am.
Compl. ¶¶ 77–80). Defendants move to dismiss on two grounds: First, although “Plaintiff
alleges [that] she received a right-to-sue letter, she notably fails to allege when she received it,
which is fatal to her retaliation claim,” Dkt. 34 at 17; and, second, Plaintiff has failed to “allege
sufficient [facts] to establish [a] causal connection between any alleged protected activity and
[the alleged] adverse action,” that is, her termination, id.12
Defendants’ first argument is unpersuasive. The running of the statute of limitations is an
affirmative defense, Fed. R. Civ. P. 8(c), and thus a plaintiff is not required to plead timeliness in
her complaint, see Marzorati v. MedStar-Georgetown Med. Ctr., Inc., 265 F. Supp. 3d 24, 26–27
(D.D.C. 2017); see also Jones v. Bock, 549 U.S. 199, 211–12 (2007) (describing Federal Rule of
Civil Procedure 8(c) as “a nonexhaustive list of affirmative defenses” that need not be pleaded in
a complaint). Defendants fail to cite any support for their contention that Plaintiff’s failure to
allege the date she received her right-to-sue letter “is fatal to her retaliation claim,” Dkt. 34 at 17,
and the Court is unaware of any precedent or rule that might support that proposition.
Defendants’ second argument, in contrast, is persuasive. The anti-retaliation provision of
Title VII makes it unlawful for an employer, including a federal employer, see Howard R.L.
Cook & Tommy Shaw Found. ex rel. Black Emps. of Libr. of Cong., Inc. v. Billington, 737 F.3d
767, 772 (D.C. Cir. 2013), to:
discriminate against any . . . employee[] or applicant[] for employment . . .
because [s]he has opposed any practice made an unlawful employment practice
by this subchapter, or because [s]he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.
42 U.S.C. § 2000e-3(a). To prove a retaliation claim, a plaintiff “must show (1) that an
employee engaged in statutorily protected activity; (2) that the employee suffered a materially
adverse action by the employee’s employer; and (3) that a causal link connects the two.”
Howard R.L. Cook, 737 F.3d at 772. “To survive [a] motion to dismiss, [the] plaintiff[’s]
complaint must ‘contain sufficient factual matter, accepted as true,’ to plausibly establish those
three elements.” Id. (quoting Iqbal, 556 U.S. at 678).
Here, the Court is persuaded that Plaintiff has failed to allege facts sufficient to claim
plausibly that Defendants removed Plaintiff from her position because she had engaged in
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protected activity. Plaintiff merely alleges (1) that she “received a Notice of Proposed Adverse
Action: Removal” on July 31, 2019, Dkt. 33 at 4 (2d Am. Compl. ¶ 30); (2) that the Notice
asserted that the proposed action was premised on Plaintiff’s “failure to meet the requirements of
her Performance Improvement Plan (PIP), [to] carry out her responsibilities as a Licensing
Specialist, [and] [to] assist ABRA customers,” based on her “undue delay in completing her
assigned caseload,” id. (2d Am. Compl. ¶ 31); (3) that “the agency upheld its [proposal] to
terminate” her, id. (2d Am. Compl. ¶ 34); and (4) that she “believes that her termination [was] in
direct retaliation for her filing the instant action against the agency,” id. (2d Am. Compl. ¶ 33).
Beyond these factual allegations, she merely makes the conclusory assertion that her “removal
[was] causally connected to her EEOC complaint as well as the pending litigation to vindicate
her claims for employment discrimination.” Id. at 8 (2d Am. Compl. ¶ 80).
Because conclusory allegations are “not entitled to be assumed true,” Iqbal, 556 U.S. at
681, Plaintiff is left with the allegations that her employer proposed her removal for poor
performance and ultimately removed her, after she had filed an EEOC complaint and the pending
action. More is needed to plead a retaliation claim, and, in particular, to plead the necessary
causal connection. Although in some cases temporal proximity will suffice, Hamilton v.
Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012); Singletary v. District of Columbia, 351 F.3d
519, 525 (D.C. Cir. 2003), here, too much time passed between Plaintiff’s protected activity and
the alleged, adverse action to establish—without any other pertinent allegations—a plausible
theory of causation. Plaintiff alleges that she received the agency’s Notice of proposed removal
on July 31, 2019, Dkt. 33 at 4 (2d Am. Compl. ¶ 30), which was more than nineteen months after
she filed her EEOC complaint, id. at 3 (2d Am. Compl. ¶ 20) (dating the EEOC claim as filed on
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December 6, 2017), and more than sixteen months after she filed this action, Dkt. 1 (showing an
ECF filing date of March 20, 2018).
In her opposition brief, Plaintiff contends that the Notice of proposed removal was issued
by Gordy, who was the subject to her EEOC complaint and many of her allegations in this
complaint; that Gordy was aware of Plaintiff’s complaints about his behavior; and that her
retaliation claim “is based on numerous instances” of harassment that ultimately led to her
removal. Dkt. 36-1 at 6. For present purposes, the Court need not decide whether these
assertions would suffice to plead causation because they are not contained in the second
amended complaint, and a plaintiff (particular one represented by counsel) cannot amend her
complaint in a brief in opposition to a motion to dismiss. Sai v. TSA, 326 F.R.D. 31, 33 (D.D.C.
2018); Kingman Park Civic Ass’n v. Gray, 27 F. Supp. 3d 142, 168 (D.D.C. 2014);
Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010). Plaintiff asserts that
she cannot establish the necessary causal link without discovery. Dkt. 36–1 at 6. At this stage of
the proceeding, she is not required to prove causation, but she is required to allege facts that, if
accepted as true, plausibly state a claim—including all elements of a retaliation claim. Unless
she can meet that minimal standard, she is not entitled to open the door to discovery in the hopes
of finding something that might support her suspicion.
The Court therefore concludes that Plaintiff has failed to state a claim for retaliation and
will, accordingly, dismiss Count III of the second amended complaint without prejudice.
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CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Defendants’ motion to dismiss.
Plaintiff may, if appropriate, file a third amended complaint with respect to Count III on or
before December 11, 2020. If Plaintiff fails to file a third amended complaint by that date, the
Court will enter final judgment at that time.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: November 27, 2020
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