Williams v. Turner Services Inc. ( 2021 )


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  •                       UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    TERRANCE WILLIAMS,
    Plaintiff,
    v.
    Civ. Action No. 19-2636
    (EGS)
    TURNER SECURITY, INC., 1
    Defendant.
    MEMORANDUM OPINION
    Plaintiff Terrance Williams (“Mr. Williams”), proceeding
    pro se, brings this lawsuit against Turner Security, Inc.
    (“Turner Security”) alleging: (1) retaliation under Title VII of
    the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2
    et seq.; (2) violation of 
    42 U.S.C. § 1981
    ; (3) violations of the
    “D.C. Compensation Act”; (4) violations of the National Labor
    Relations Act (“NLRA”); and (5) the D.C. Family Medical Leave
    Act (“DCFMLA”), 
    D.C. Code § 32-501
     et seq. See Am. Compl., ECF
    1
    Defendant states that Plaintiff improperly identifies Turner
    Services Inc. as the defendant, but because Plaintiff was
    employed by Turner Security, Inc. (a sister company to Turner
    Services, Inc.), Turner Security, Inc. is the proper defendant.
    Accordingly, the Court, sua sponte, ORDERS the substitution of
    the proper defendant, Turner Security, Inc. See, e.g., Sampson
    v. D.C. Dept of Corr., 
    20 F. Supp. 3d 282
    , 285 (2014) (sua
    sponte ordering substitution of the District of Columbia where
    plaintiff had named the D.C. Department of Corrections).
    1
    No. 19 at 3, 8, 9. 2 Pending before the Court is Turner Security’s
    Motion to Dismiss. See ECF No. 22-1. Upon consideration of the
    motion, opposition, the reply, the applicable law, and the
    entire record, Turner Security’s Motion to Dismiss is GRANTED.
    I.   Factual Background
    Mr. Williams alleges that he was discriminated against when
    he was terminated in “retaliation for whistleblowing and
    challenging questionable business practices.” Am. Compl., ECF
    No. 19 at 3. He alleges that his 2018 performance goals included
    responsibilities that were not part of his position description.
    
    Id. at 5
    . Mr. Williams alleges that between April 25, 2018, and
    December 2018, he voiced concerns to management about being
    required to perform duties that were inconsistent with his
    position description, but he received no response to his
    concerns and instead was assigned additional extra duties. 
    Id. at 6
    . He alleges that he discussed his concerns with Turner
    Security’s Human Resources Department, leadership, and other
    concerned employees. 
    Id. at 8
    .
    Mr. Williams alleges that from January to March 2019, he
    was on short term disability, and upon his return to work he
    “was asked to sign a document stating that Turner Security had
    2
    When citing electronic filings throughout this Memorandum
    Opinion, the Court cites to the ECF page number, not the page
    number of the filed document.
    2
    to the ability to revise and change company policy without
    notifying staff of the changes.” 
    Id. at 6
    . He alleges that he
    was not given enough time to review the updates to the Operation
    Manual, and that he refused to sign the document. 
    Id.
     Mr.
    Williams alleges that thereafter, he was terminated “without
    cause.” 
    Id. at 7
    .
    Mr. Williams alleges that in March 2019, he attempted to
    file for unemployment benefits, but that his request was denied
    because Turner Security stated that he had been terminated due
    to “gross misconduct.” 
    Id. at 7
    . He further alleges that his
    appeal of the denial was resolved in his favor because Turner
    Security did not provide evidence of misconduct. 
    Id. at 7-8
    .
    Finally, Mr. Turner alleges he filed a claim with the
    District of Columbia Office of Human Rights. 
    Id.
    II.   Standard of Review
    A motion to dismiss pursuant to 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). A
    complaint must contain "a short and plain statement of the claim
    showing that the pleader is entitled to relief, in order to give
    the defendant fair notice of what the . . . claim is and the
    grounds upon which it rests." Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555, (2007) (internal quotation marks omitted).
    3
    Despite this liberal pleading standard, to survive a motion
    to dismiss, a complaint "must contain sufficient factual matter,
    accepted as true, to state a claim to relief that is plausible
    on its face." Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678, (2009)
    (internal quotation marks omitted). “In determining whether a
    complaint fails to state a claim, [the Court] may consider only
    the facts alleged in the complaint, any documents either
    attached to or incorporated in the complaint and matters of
    which [the Court] may take judicial notice.” EEOC v. St. Francis
    Xavier Parochial Schl., 
    117 F.3d 621
    , 624 (D.C. Cir. 1997). A
    claim is facially plausible when the facts pled in the complaint
    allow the court to "draw the reasonable inference that the
    defendant is liable for the misconduct alleged." 
    Id.
     The
    standard does not amount to a "probability requirement," but it
    does require more than a "sheer possibility that a defendant has
    acted unlawfully." 
    Id.
    "[W]hen ruling on a defendant's motion to dismiss [pursuant
    to Rule 12(b)(6)], a judge must accept as true all of the
    factual allegations contained in the complaint." Atherton v.
    D.C. Office of the Mayor, 
    567 F.3d 672
    , 681 (D.C. Cir. 2009)
    (internal quotation marks omitted). In addition, the court must
    give the plaintiff the "benefit of all inferences that can be
    derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 
    16 F.3d 1271
    , 1276 (D.C. Cir. 1994). A "pro se complaint is
    4
    entitled to liberal construction." Washington v. Geren, 
    675 F. Supp. 2d 26
    , 31 (D.D.C. 2009) (citation omitted). Even so,
    "[t]hreadbare recitals of the elements of a cause of action,
    supported by mere conclusory statements" are not sufficient to
    state a claim. Iqbal, 
    556 U.S. at 678
    .
    III. Analysis
    A. Mr. Turner Has Failed to State a Claim for Retaliation 3
    Under Title VII, it is unlawful for an employer to: (1)
    “discriminate against any individual with respect to [his]
    compensation, terms, conditions, or privileges of employment,
    because of [his] race, color, religion, sex, or national
    origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any
    individual for participating in a protected activity, 42 U.S.C.
    § 2000e-3(a). To establish a prima facie claim of retaliation,
    the plaintiff must allege that he engaged in activity protected
    by Title VII, the employer took adverse action against him, and
    the employer took that action because of the employee's
    protected conduct. Hamilton v. Geithner, 
    666 F.3d 1344
    , 1357
    (D.C. Cir. 2012).
    3 It is unclear whether Mr. Williams exhausted his administrative
    remedies with regard to his retaliation claim. However, even
    assuming that he did exhaust his administrative remedies with
    regard to this claim, he has failed to state a claim for
    retaliation.
    5
    Mr. Williams alleges that his termination was in
    retaliation for challenging “questionable business practices.”
    Am. Compl., ECF No. 19 at 3. Those practices are that: (1) he
    was required to perform duties that were not part of his job
    description; and (2) he was required to sign a document
    regarding his employer’s ability to make changes to company
    policy, but he was not given enough time to review the document.
    
    Id. at 6
    . However, complaining about being required to perform
    duties that are inconsistent with his job activities and not
    being given enough time to review a document are not protected
    activities. See Watson v. D.C. Water & Sewer Authority, No. CV
    16-2033 (CKK), 
    2018 WL 6000201
    , at *15 (D.D.C. Nov. 15, 2018),
    aff’d, 777 F. App’x 529 (D.C. Cir. 2019) (noting that
    “complaining about unfair treatment is not a protected
    activity”) (internal quotation marks omitted).
    In his opposition briefing, Mr. Williams states that his
    “request for equitable leave practices was disregarded.” Opp’n
    ECF No. 24 at 3. However, his Amended Complaint contains no
    allegations regarding this request. See generally Am. Compl.,
    ECF No. 19. Furthermore, Mr. Williams does not respond to Turner
    Security’s argument that he has not alleged facts that would
    amount to protected activity, see Def.’s Motion to Dismiss
    (“Def.’s Mot.”), ECF No. 22-1 at 9-10; focusing instead on the
    fact that he was terminated, see Pl.’s Opp’n, ECF No. 24 at 3.
    6
    Accordingly, Mr. Williams has conceded this argument. See
    Haraway v. D.C., No. 14-1273 (RJL), 
    2015 WL 5138711
    , at 5
    (D.D.C. Aug. 31, 2015), aff’d, No. 15-7095, 
    2016 WL 232009
     (D.C.
    Cir. Jan. 4, 2016) (summarily affirming dismissal of claims pro
    se plaintiffs failed to address in response to dispositive
    motion). For all of these reasons, Mr. Williams’s retaliation
    claim is DISMISSED.
    B. Mr. Williams Has Failed to State a Claim Under 
    42 U.S.C. § 1981
    “Under 
    42 U.S.C. § 1981
    , [a]ll persons within the
    jurisdiction of the United States shall have the same right ...
    to make and enforce contracts, which includes the making,
    performance, modification, and termination of contracts, and the
    enjoyment of all benefits, privileges, terms, and conditions of
    the contractual relationship.” Stafford v. George Washington
    Univ., No. 18-CV-2789 (CRC, 
    2019 WL 2373332
    , at *18 (D.D.C. June
    5, 2019) (internal quotation marks omitted). “‘To establish a
    claim under § 1981, a plaintiff must show that (1) [he is a
    member] of a racial minority [group]; (2) the defendant had an
    intent to discriminate on the basis of race; and (3) the
    discrimination concerned one or more of the activities
    enumerated in the statute.’” Id. (quoting Mitchell v. DCX, Inc.,
    
    274 F. Supp. 2d 33
    , 44–45 (D.D.C. 2003) (citation omitted and
    first alteration added).
    7
    Mr. William’s amended complaint contains no allegations
    that would establish a claim that Turner Security intended to
    discriminate against him based on his race, or that he was
    discriminated against with regard to a contractual relationship.
    See generally Am. Compl., ECF No. 19. Furthermore, his
    Opposition briefing fails to respond to this argument and so the
    Court will treat this argument as conceded. See Haraway, 
    2015 WL 5138711
    , at 5. For these reasons, Mr. Williams’s claim under 
    42 U.S.C. § 1981
     is DISMISSED.
    C. Mr. Williams Fails to State a claim for Wrongful
    Termination
    Construing his Amended Complaint liberally, it appears that
    Mr. Williams alleges a cause of action for wrongful termination
    because he states he was terminated “without cause.” Am. Compl.,
    ECF No. 19 at 5. Turner Security argues that this claim fails
    because Mr. Williams was an at-will employee, and he has not
    alleged that a contract governed his employment. Def.’s Mot.,
    ECF No. 22-1 at 11. Turner Security attaches an excerpt from the
    Security Operations Manual (“Manual”) to its motion, pointing
    out that the manual states that “[s]ecurity officers are at-will
    employees and are not subject to provisions that may be
    applicable to employees under contract.” 
    Id.
     Mr. Williams
    responds that the Manual provided is from 2016, whereas it is
    updated annually. Pl.’s Opp’n, ECF No. 24 at 4. Mr. Williams
    8
    points out that the Manual refers to “progressive” discipline,
    which was not used when he was terminated. 
    Id.
     He also argues
    that while the Manual states that progressive discipline may be
    inappropriate where the violation is severe, he was terminated
    merely because he asked if he could read the Manual before
    signing it. 
    Id.
    The Court may properly consider the excerpt from the Manual
    as Mr. Williams cites it in his Amended Complaint and apparently
    intended to attach it as Exhibit A to the Amended Complaint. See
    Hinton v. Corrections Corp. of Am., 
    624 F. Supp. 2d 45
    , 46
    (D.D.C. 2013) (the court may also consider “documents upon which
    the plaintiff’s complaint necessarily relies even if the
    document is produced not by the plaintiff in the complaint but
    by the defendant in a motion to dismiss”) (internal quotations
    omitted). Mr. Williams does not dispute the authenticity of the
    Manual, although he notes that it is updated annually, pointing
    to the language regarding progressive discipline. Pl.’s Opp’n,
    ECF No. 24 at 8.
    In the District of Columbia, all employment is
    presumed to be terminable at-will “unless a
    contrary   contractual   intent   is   clearly
    expressed.” Turner v. Fed. Express Corp., 
    539 F. Supp. 2d 404
    , 410 (D.D.C. 2008). “The
    presumption of at-will employment is rebutted
    only where the parties clearly state an
    intention to place limits on the employer's
    right to terminate.” 
    Id.
     Such clear intent may
    be reflected in an employer's personnel manual
    or employment handbook, thereby giving rise to
    9
    an implied contract. See Clampitt v. Am.
    Univ., 
    957 A.2d 23
    , 35 (D.C. 2008). A
    personnel manual creates an implied employment
    contract when, as pertinent here, it sets out
    preconditions   that   must   be  met   before
    termination of employment, Strass v. Kaiser
    Found. Health Plan, 
    744 A.2d 1000
    , 1013–14
    (D.C. 2000), and when the employer publishes
    or distributes the personnel manual containing
    those preconditions to all employees, see
    Clampitt, 
    957 A.2d at 36
    . Employers may,
    however, “effectively disclaim any implied
    contractual obligations arising from such
    provisions.” Boulton v. Inst. of Int'l Educ.,
    
    808 A.2d 499
    , 505 (D.C. 2002). “The legal
    effect of such a disclaimer is, in the first
    instance, a question for the court to decide.”
    
    Id.
    Howard v. Fed. Express Corp., 
    280 F. Supp. 3d 26
    , 30 (D.D.C.
    2017).
    Here, the Manual states as follows: “This policy is not
    intended to restrict or interfere with the Company’s right to
    terminate or suspend employment without cause and without notice
    or in accordance with the terms of written employment contracts,
    if applicable. Security officers are “at will” employees and are
    not subject to provisions that may be applicable to employees
    under contract.” Manual, ECF No. 22-2 at 3-4. The Manual will
    “create[] an implied contract” if “it sets out preconditions
    that must be met before termination of employment.” Howard, 280
    F. Supp. at 30. The Manual states that “[t]here will be certain
    instances in which progressive discipline is not appropriate due
    to the severity of the violation. In those cases, some of the
    10
    steps described below may be condensed, omitted or bypassed.”
    Manual, ECF No. 22-2 at 4. Because the Manual does not require
    “preconditions that must be met,” it does not create an implied
    contract. And even if the Manual created an implied contract,
    Turner Security has effectively disclaimed any contractual
    obligations arising from the Manual by stating that: (1)
    security officers are “at will” employees and (2) progressive
    discipline is not appropriate in all instances. For these
    reasons, Mr. William’s claim for wrongful termination is
    DISMISSED.
    D. Mr. Williams Cannot State a claim Under The National
    Labor Relations Act
    Construing his Amended Complaint liberally, it appears that
    Mr. Williams alleges a violation of the NLRA. See Am. Compl.,
    ECF No. 19 at 8 (alleging that he discussed his concerns with
    other “concerned employees” and citing 
    29 U.S.C. § 157
    ).
    “Section 7 of the [NLRA] preserves employees' rights ‘to self-
    organization, to form, join, or assist labor organizations, to
    bargain collectively through representatives of their own
    choosing, and to engage in the other concerted activities for
    the purpose of collective bargaining or other mutual aid or
    protection.’” Parks v. Giant of Maryland, LLC, 
    295 F. Supp. 3d 5
    , 10 (D.D.C. 2018) (quoting 
    29 U.S.C. § 157
    ). “Section 8, in
    turn, makes it ‘an unfair labor practice for an employer ... to
    11
    interfere with, restrain, or coerce employees in the exercise of
    the rights guaranteed in [Section 7] . . ..’” 
    Id.
     (quoting 
    29 U.S.C. § 158
    (a)(1). However, “[t]he Supreme Court has held that
    ‘[w]hen an activity is arguably subject to Section 7 or Section
    8 of the [National Labor Relations Act], the States as well as
    the federal courts must defer to the exclusive competence of the
    National Labor Relations Board.’ 
    Id.
     (quoting San Diego Bldg.
    Trades Council v. Garmon, 
    359 U.S. 236
    , 245, (1959). Mr.
    Williams fails to respond to this argument in his Opposition
    briefing, see generally Opp’n, ECF No. 24; and so he has
    conceded this argument. See Haraway, 
    2015 WL 5138711
    , at 5. For
    these reasons, any claim Mr. Williams asserts under the NLRA is
    preempted and the claim is DISMISSED.
    E. Mr. Williams Has Failed to State a Claim Under the “D.C.
    Compensation Act”
    Mr. Williams alleges violations of the “D.C. Compensation
    Act.” Am. Compl., ECF No. 19 at 3. The facts which support this
    claim are his allegations that in March 2019, he attempted to
    file for unemployment benefits, that his request was denied
    because Turner Security stated that he had been terminated due
    to “gross misconduct,” and that his appeal of this denial was
    resolved in his favor because Turner Security did not provide
    evidence of misconduct. 
    Id. at 7-8
    . Mr. Williams alleges that
    “[t]he ‘denial’ of [his] request for unemployment benefit[s]
    12
    presented a violation in itself when the appeal was ruled in
    [his] favor.” 
    Id. at 9
    . Turner Security argues that there is no
    “D.C. Compensation Act” in the District of Columbia Code or
    Municipal Regulations. See Def.’s Mot., ECF No. 22-1 at 13-14.
    Unemployment compensation in the District of Columbia is
    governed by 
    D.C. Code § 51-107
    . Mr. Williams alleges that his
    appeal of the denial of benefits was resolved in his favor. He
    has provided no legal authority, however, for his argument that
    Turner Security violated D.C. unemployment compensation laws
    when his claim was initially denied. Furthermore, Mr. Williams
    fails to respond to Turner Security’s argument in his opposition
    briefing, see generally Opp’n, ECF No. 24; and so he has
    conceded the argument. See Haraway, 
    2015 WL 5138711
    , at 5. For
    these reasons, Mr. Williams’s claim under the “D.C. Compensation
    Act” is DISMISSED.
    F. Mr. Williams Has Failed To State a claim Under the D.C.
    Family Medical Leave Act
    Construing his Amended Complaint liberally, it appears that
    Mr. Williams alleges a violation of the D.C. Family Medical
    Leave Act (“DCFMLA”), 
    D.C. Code § 32-501
     et seq. See Am. Compl.,
    ECF No. 19 at 9 (alleging that “[w]hen [he] returned to work in
    March 2018, his position description, additional policies,
    security operations manuals . . .and   . . daily operations logs
    were revised.”). Turner Security argues that if Mr. Williams is
    13
    “alleg[ing] that he was not restored to his position, he may
    [be] attempt[ing] to state a claim for interference under the
    DCFMLA,” but that he has failed to state a prima facie claim
    because he has only alleged that “he went out on a short term
    disability leave, and when he returned, his position description
    was revised.” Def.’s Mot., ECF No. 22-1 at 15.
    Under the DCFMLA, an employee can assert a retaliation
    claim. See Thomas v. D.C., 
    227 F. Supp. 3d 88
    , 110 (D.D.C.
    2016). To state a retaliation claim, Mr. Williams must allege
    that “(1) he exercised rights afforded by the [DCFMLA], (2) that
    he suffered an adverse employment action, and (3) that there was
    a causal connection between the exercise of his rights and the
    adverse employment action.” 
    Id. at 99
    .
    Here, Mr. Williams alleges that from January to March 2019,
    he was on short term disability, and upon his return to work he
    “was asked to sign a document stating that Turner Security had
    to the ability to revise and change company policy without
    notifying staff of the changes.” 
    Id. at 6
    . Mr. Williams alleges
    that he was not given enough time to review the updates to the
    Operation Manual, and that he refused to sign the document. 
    Id.
    Mr. Williams alleges that “his position description, additional
    policies, security operations manuals . . .and   . . daily
    operations logs were revised,” 
    Id. at 9
    ; and that after he
    returned to work and refused to sign the document, he was
    14
    terminated “without cause.” 
    Id. at 7
    . While Mr. Turner alleged
    that “he was on short term disability,” he has not alleged that
    he took leave under the DCFMLA. See generally Am. Compl., ECF
    No. 19. Furthermore, Mr. Williams fails to respond to this
    argument in his opposition briefing, see generally Opp’n, ECF
    No. 24; and so he has conceded this argument. See Haraway, 
    2015 WL 5138711
    , at 5. For all of these reasons, Mr. Williams’s
    DCFMLA claim is DISMISSED.
    IV.   Conclusion
    For the reasons stated above, Turner Security’s Motion to
    Dismiss is GRANTED. An appropriate Order accompanies this
    Memorandum Opinion.
    SO ORDERED.
    Signed:    Emmet G. Sullivan
    United States District Judge
    September 29, 2021
    15