Leftwich v. Gallaudet University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES A. LEFTWICH, JR.,
Civil Action No. 11-CV-798 (BJR)
Plaintiff,
MEMORANDUM AND OPINION
v.
GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION TO
GALLAUDET UNIVERSITY,
DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT
Defendant.
I. INTRODUCTION
This matter is before the court on Defendant’s, Gallaudet University (“Defendant” or “the
University”), Motion to Dismiss, or, in the Alternative, for Summary Judgment. (Dkt. No. 9.).
Plaintiff, James A. Leftwich, Jr. (“Plaintiff”), filed an Opposition to the Motion on February 13,
2012 (Dkt. No. 11), Defendant filed a Reply on March 21, 2012 (Dkt. No. 13), and Plaintiff filed
a Sur-Reply on April 16, 2012. 1
Plaintiff instituted the present action against Defendant on April 27, 2011, alleging claims
under the American with Disabilities Act of 1990, 42 U.S.C. § 12112 (“the ADA”), the Civil
Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”), the District of Columbia Human Rights
Act, D.C. Code §§ 2.1401 et seq. (“DCHRA”), and the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq. (“Title VII”). (Dkt. No. 7 at ¶ 5.). Specifically, Plaintiff alleges that the
University: (1) discriminated against him, subjected him to a hostile work environment and
terminated his position at the University based on his race in violation of Section 1981 (Counts 1
and 2); (2) failed to accommodate his disability, subjected him to a hostile work environment on
the basis of his race, terminated his position with the University on the basis of his race,
1
The court granted Plaintiff leave to file a sur-reply on May 15, 2012.
1
disability and/or in retaliation for engaging in a protected EEO activity, and retaliated against
him for participating in a protected EEO activity in violation of the DCHRA (Counts 3 through
8); (3) failed to accommodate his disability, subjected him to a hostile work environment, and
unlawfully suspended him on the basis of his disability in violation of the ADA (Counts 9, 11
and 14); and subjected him to a hostile work environment on the basis of race, and retaliated
against and suspended him for engaging in a protected EEO activity in violation of Title VII
(Counts 10, 12 and 13).
Defendant moves, pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, Federal Rule 56, to dismiss: (1) Counts 9 through 15 brought pursuant to the ADA
and Title VII for failure to exhaust administrative remedies, (2) Counts 3 through 8 brought
pursuant to the DCHRA as time-barred, and (3) Counts 1 and 2 for failure to state a claim for
discriminatory treatment under Section 1981. Having considered the parties’ arguments,
pleadings, and relevant case law, the court finds and rules as follows.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a 36-year-old African-American man who was hired by the University on May
19, 2003 as a campus police officer. (Dkt. No. 7 at ¶¶ 1, 15-16.). On October 26, 2006, in the
course of performing his duties, Plaintiff fe1l from a fence and injured his ankle. (Id. at ¶ 26.).
His injury required surgery and he was out on Worker’s Compensation Leave until he returned to
work on April 17, 2007. (Id. at ¶¶ 28, 32.). Plaintiff alleges that as a result of this injury, he is
permanently physically disabled with substantial limits to his ability to walk, run, stand, climb,
and kneel. (Id. at ¶ 29.). Plaintiff obtained an Independent Medical Evaluation (“IME”) through
the University’s Worker’s Compensation Program. (Id. at ¶ 33.). The IME stated that he “cannot
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return to full duty nor will he ever be able to return to his job in a full duty position. A sedentary
job is recommended.” Id.
Plaintiff asserts that the University granted him a reasonable accommodation for his
disability by restructuring his duties to include sedentary, administrative tasks related to campus
security. (Id. at ¶ 34.). His job duties included, but were not limited to, Front Desk Technician,
Dispatcher and Assistant to the Community Relations Coordinator/Investigator. Id. When
Plaintiff returned to work, he reported to his immediate supervisor, Virginia Fedor, a Caucasian
female who is the Community Services and Investigations Coordinator for the University. (Id. at
¶¶ 18, 37.). Additionally, Plaintiff reported to Fabienne Collson, the Manager of Communication
Services at Gallaudet. (Id. at ¶¶ 19, 37.). Ms. Collson is also Caucasian. (Id. at ¶ 19.). Plaintiff
also reported to Ms. Wendy Potts, Deputy Director of Defendant’s Department of Public Safety.
(Id. at ¶¶ 20, 37.). Ms. Potts is African-American. (Id. at ¶ 20.). Ms. Pott’s direct supervisor is
Ms. Batten-Mickens, the Director of Public Safety. (Id. at ¶ 21.). Ms. Batten-Mickens is also
African-American. Id.
Plaintiff claims that from the moment he was placed in an administrative position, he was
ostracized, unwelcome, and singled out for adverse treatment. (Id. at ¶ 40.). He alleges that Fedor
and Potts repeatedly assigned him tasks that went beyond his physical limitations in
contravention of the light duty accommodation. (Id. at ¶ 41.). He claims that frequently, when he
reminded Fedor of his physical limitations, she would respond that he was being insubordinate
and lazy. (Id. at ¶ 42.).
For instance, Plaintiff claims that in October 2007, Fedor and Potts assigned him to work
at an outdoor surveillance post. (Id. at ¶ 43.). Plaintiff alleges that he expressed concern to Potts
that his injury prevented him from being able to defend himself or anyone else if trouble arose,
3
and, as such, his assignment to that post posed a security risk. Id. Plaintiff claims that Potts told
him that he would be reprimanded and possibly suspended or terminated if he did not work at the
designated post. Id. Plaintiff alleges that in May 2008, Fedor ordered him to perform a follow up
investigation on police reports—a task requiring him to walk through campus dormitories for an
extended period of time exceeding his physical capacity. (Id. at ¶ 57.). Plaintiff alleges that he
expressed concern to Fedor about his ability to perform the task. Id. It is unclear from the
complaint whether Plaintiff completed the task, but Plaintiff alleges that several days later, he
received a letter from Potts in which she stated that she was “concern[ed]” about his refusal to
perform assigned tasks that exceed his reasonable accommodation and physical abilities. (Id. at ¶
58.).
Plaintiff asserts that in July 2008, Fedor instructed him to clean out a storage area, a task
that would require him to stand and lift heavy objects while climbing a ladder for a period of
time greater than one hour. He claims that when he reminded Fedor of his physical limitations,
she threatened him with disciplinary action. He maintains that he completed the task, but later
sent a letter to Potts describing the incident and inquiring why he was “continually asked to
perform tasks outside the scope of his accommodation.” (Id. at ¶ 63.). He claims that Potts never
responded to the letter. (Id. at ¶ 64.). Plaintiff also claims that in September 2009, he was
assigned to fingerprinting duty, a job that he alleges required him to stand for a period of time
exceeding four hours. (Id. at ¶ 81.). According to Plaintiff, when he complained about the
physical requirements, Fedor threatened to discipline him if he did not complete the task. (Id. at ¶
82.).
In addition, Plaintiff claims that he was treated in a rude and demeaning manner on a
number of occasions. (Id. at ¶ 43.). For instance, he alleges that Ms. Collson often stated that he
4
was not a part of her team that she did not want him working in dispatch. Id. He claims that on
April 30, 2008, Collson threw a document at him and stated, “Oh, by the way Officer Leftwich,
this is for you,” in a rude manner while she walked away from him. (Id. at ¶ 47.). He further
alleges that as Collson left, Bob Wilson, a Caucasian male and the DPS Communications
Manager approached Plaintiff and told him to “get [his] ass out there and help Frank Turk.” He
claims that Wilson also stated, “don’t worry about it because you are not going to be working
here much longer anyway, boy.” (Id. at ¶ 48.).
Plaintiff maintains that he wrote a letter to Ms. Batten-Mickens that same day, reporting
Collson’s and Wilson’s conduct and stated that he felt disrespected and discriminated again. (Id.
at ¶ 49.). Plaintiff alleges that he expressed that Wilson’s use of the word “boy” was racially
derogatory and inflammatory and requested that Wilson’s behavior be corrected. (Id. at ¶ at 50.).
Plaintiff claims that he sent a copy of the letter to Ms. Fedor. (Id. at ¶ 51.). Plaintiff further
alleges that on May 5, 2008, Ms. Batten-Mickens e-mailed him acknowledging his letter and
stating that she would investigate the incident. He claims that she also forwarded his letter to
Sharrell McCaskill, an African-American female who is the Director of Equal Opportunity
Programs at the University. (Id. at ¶¶ 21 and 52.). Plaintiff claims that “within hours of receiving
this e-mail” Fedor issued him a reprimand for his conduct during the April 30, 2008 incident,
claiming that his “demeanor was unprofessional, inappropriate, and negatively impact[ed] the
public’s image of [the security] Department.” (Id. at 53.). Plaintiff alleges that, to his knowledge,
no disciplinary action was taken against Collson or Wilson. (Id. at 56.).
Plaintiff also claims that he was subject to offensive and insensitive remarks about his
race (black) and overall appearance (large) on an almost daily basis. (Id. at ¶ 74.). For instance,
he claims that in July 2009, he and two other black coworkers were talking in the break-room
5
when Fedor walked in. She assigned him a task and then allegedly stated: “Stay out of trouble”
and “don’t get locked up.” (Id. at ¶¶ 74-75.). Plaintiff felt that this comment was a “threat
directly related to the well-publicized mistaken, racially motivated arrest of Harvard University
Professor Henry Louis Gates, Jr., two days earlier.” (Id. at ¶ 75.). Plaintiff claims that he wrote a
letter to Fedor expressing his “disgust” at her comment, but that she never responded. (Id. at ¶¶
76-77.).
Plaintiff asserts that he felt that he was “constantly being singled out and treated more
harshly than his coworkers.” (Id. at ¶ 86.). He claims that he received undue criticism of his work
and was repeatedly reprimanded for refusing to do tasks that exceeded his physical limitations.
Id. He maintains that his attempts to assert his rights were viewed as argumentative and
unprofessional by his supervisors. Id. He further states that on October 6, 2008, he wrote a letter
to Potts in which he complained about Fedor’s alleged failure to respect his accommodation
limitation and about her behavior towards him, stating: “ever since I returned to D.P.S. from my
injury in October of 2006, I have been treated unfairly by Lt. Virginia Fedor. I have been told by
[her] that I am lazy, incompetent, lack integrity, and above all a lousy assistant.” (Id. at ¶ 67.).
He claims that on October 12, 2008, he wrote a second letter to Potts complaining of the
increasingly tense relationship and describing an incident in which Fedor allegedly said, “I do
not want to upset you because you are such a big black guy and you always look mean all of the
time.” (Id. at ¶¶ 68-69.). He claims that Potts responded to his October 6, 2008 letter in a letter
dated October 13, 2008, in which she “ratif[ied] Ms. Fedor’s perceptions of [him] as lazy and
incompetent but otherwise failed to address his complaint of [] failure to accommodate.” (Id. at ¶
70.). He claims that Potts never responded to his October 12, 2008 letter. Id.
6
Plaintiff contends that he complained to University management officials on multiple
occasions regarding his supervisors’ alleged treatment of him. He also claims that he attempted
on multiple occasions to avail himself of the University’s internal dispute resolution process by
contacting the University’s EEO Director McCaskill. (Id. at ¶¶ 65-66.). He states that McCaskill
tried to coordinate a meeting between Fedor and Plaintiff in order to address his concerns, but
Fedor refused to participate. (Id. at ¶ 66.).
Plaintiff received a negative performance review from Fedor in 2009, with a score falling
within the “needs improvement” category. She gave him a 2 in the section entitled “attitude
towards assignments” and commented that he “has been reluctant to accept and refused
assignments in investigations as well as failed to follow direction.” (Id. at ¶¶ 71-72.). He claims
that he received much higher scores from his other supervisors in previous years. (Id. at ¶ 73.).
Finally, Plaintiff asserts, his relationship with his supervisors became so tense that in
October 2009, he felt that he could only communicate with them through sign language because
he was frequently accused of speaking in an insubordinate manner. (Id. at ¶ 79.). He claims that
on the day that Fedor assigned him to the fingerprinting duty, she asked him in an “abrasive[],”
“abrupt,” and “confrontational manner” about the status of the project. (Id. at ¶ 83.). He
responded in sign language: “It’s going fine.” Id. Thereafter, on October 1, 2009, Collson issued
him a five day suspension for insubordination for being “nonresponsive to a direct inquiry from
Ms. Fedor.” (Id. at ¶ 84.).
On October 8, 2009, Plaintiff filed an Intake Questionnaire with the EEOC. (Id. at ¶ 85.).
Also in October 2009 (the Amended Complaint does not specify the exact date), Plaintiff went
out on FMLA leave. (Id. at ¶ 88.). He claims that his physical disability, exacerbated by
Defendant’s alleged failure to accommodate it and in conjunction with the hostile work
7
environment, caused him severe stress and anxiety. He claims that he began seeing a therapist for
stress, anxiety and depression during this time. (Id. at ¶¶ 88-89).
On March 24, 2010, the same day that he exhausted his FMLA leave, Plaintiff provided
Defendant with a note from his therapist stating that he was under doctor’s care and requesting
that his return to work date be extended to April 26, 2010. (Id. at ¶ 90.). On April 21, 2010,
Plaintiff provided another note to Defendant in which the therapist stated that there had been no
improvement in his condition and that he was still under doctor’s care. (Id. at ¶ 91.). Plaintiff
asserts that after he sent this second letter, he received a letter from Defendant dated April 14,
2010 stating that he was expected to return to work by April 26, 2010 or he would be terminated
based on his inability to return to duty. (Id. at ¶ 92.). Plaintiff did not return to work by the
specified date, so in a letter dated May 12, 2010, Defendant terminated Plaintiff’s position
effective April 27, 2010. (Id. at ¶ 94.).
IV. DISCUSSION
A. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion to dismiss
to test “the sufficiency of the allegations within the four corners of the complaint after taking
those allegations as true.” 2 In re Interbank Fund Corp. Sec. Litig., 668 F. Supp. 2d 44, 47-48
(D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also FED. R. CIV. P.
12(b)(6). Ambiguities must be resolved in favor of Plaintiff, giving him the benefit of every
reasonable inference drawn from the well-pleaded facts and allegations in the complaint. In re
Interbank Fund Corp. Sec. Litig., 668 F. Supp. at 47-48.
2
The court will treat this motion as a motion to dismiss brought pursuant to Federal Rule 12(b)(6). Although
Defendant attached Plaintiff’s EEO filing to the motion, the court’s consideration of the document does not convert
the motion to a Rule 56 motion for summary judgment. See Meijer v. Biovail Corp., 533 F.3d 857 (D.C. Cir. 2008)
(noting the documents that are “integral to the claim” may be considered in resolving motions to dismiss under Rule
12(b)(6) without converting the motion to a summary judgment motion).
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To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts that taken as
true provide “plausible grounds” that discovery will reveal evidence to support Plaintiff’s
allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when Plaintiff pleads factual content that allows the court to draw the reasonable
inference that Defendant is liable for the alleged misconduct.” Aschroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 570)). Moreover, “[a] pleading that offers ‘labels and
conclusions’ or a formulaic recitation of the elements of a cause of action will not do. Nor does
the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citation omitted). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.”
Id. (citation omitted).
Although the court must construe the complaint in a light most favorable to Plaintiff, the
court is not required to accept factual inferences that are unsupported by facts or legal
conclusions cast in the form of factual allegations. City of Harper Woods Emps’ Ret. Sys. v.
Oliver, 589 F.3d 1292, 1298 (D.C. Cir. 2009). The court’s function is not to weigh potential
evidence that the parties might present at a later stage, but to assess whether the pleading alone is
legally sufficient to state a claim for which relief may be granted. Caribbean Broad. Sys., Ltd. v.
Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998). “Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotation
marks and citation omitted).
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B. Analysis
1. Plaintiff Exhausted His Administrative Remedies
A plaintiff challenging an employment practice under Title VII and the ADA must first
file a charge with the EEOC “within a specified period (either 180 or 300 days, depending on the
State) after the alleged unlawful employment practice occurred.” Hodge v. United Airlines, 666
F. Supp. 2d 14, 20 (D.D.C. 2009) (quoting Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550
U.S. 618, 623-24 (2007)); see also, Marshall v. Federal Exp. Corp., 130 F.3d 1095, 1098 (D.C.
Cir. 1997) (Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must
exhaust their administrative remedies by filing an EEOC charge and giving the agency a chance
to act on it.). “[I]f the employee does not submit a timely EEOC charge, the employee may not
challenge that practice in court.” Ledbetter, 550 U.S. 624 (citing 42 U.S.C. § 2000e-5(f)(1)).
Defendant claims that Plaintiff failed to file a charge with the EEOC. Consequently,
Defendant asserts, Plaintiff has not exhausted his administrative remedies and, therefore, cannot
proceed with his Title VII and ADA claims in this court. 3 Plaintiff counters that he filed an
Intake Questionnaire with the EEOC on October 8, 2009 and that this constitutes a valid charge.
The court agrees with Plaintiff.
To qualify as a “charge,” the EEOC Intake Questionnaire must contain “an allegation and
the name of the charged party, ... [and] it must be reasonably construed as a request for the
agency to take remedial action to protect the employee’s rights or otherwise settle a dispute
between the employer and the employee.” Federal Express Corp. v. Holowecki, 552 U.S. 389,
402 (2008); see also, 29 C.F.R. § 1601.12(b) (“a charge is sufficient when the Commission
3
In the District of Columbia, an EEOC charge must be filed within 300 days of the date of the alleged
discrimination. See Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 568-69 n. 13 (D.C. 2007). Defendant asserts that
the Plaintiff was terminated on April 27, 2010—the last possible date of discrimination—which was more than 300
days ago. As such, Defendant maintains, Plaintiff’s Title VII and ADA claims are time-barred.
10
receives from the person making the charge a written statement sufficiently precise to identify
the parties, and to describe generally the action or practices complained of”). In other words, “a
filing is deemed a charge if the document reasonably can be construed to request agency action
and appropriate relief on the employee’s behalf.” Holowecki, at 404. “The filing must be
examined from the standpoint of an objective observer to determine whether, by a reasonable
construction of its terms, the filer requests the agency to activate its machinery and remedial
process ....” Id. at 402.
Here, Plaintiff’s Intake Questionnaire names the Defendant, alleges that he was
discriminated against based on his race and disability, 4 and generally describes the
discriminatory acts, including that he was subject to “racial slurs, verbal harassment” by Ms.
Fedor as well as “suspended for 5 days for insubordination.” (Dkt. No. 8, Ex. 1.). These
allegations are reasonably interpreted as requests for the EEOC to “activate its machinery and
remedial processes,” and are therefore “charges.” See Holowecki, 552 U.S. at 402–03 (“It is true
that under this permissive standard a wide range of documents might be classified as charges.
But this result is consistent with the design and purpose of the ADEA .... [which], like Title VII,
sets up a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the
process.”) (internal citations and quotations omitted).
Also of import is the fact that Plaintiff checked “Box 1” on the Questionnaire, which
states, in relevant part: “I want to file a charge of discrimination, and I authorize the EEOC to
look into the discrimination I describe above.” (Dkt. No. 8, Ex. 1 at 4.). Of note, Plaintiff did not
check “Box 2,” which states: “I want to talk with an EEOC employee before deciding whether to
file a charge of discrimination. I understand that by checking this box, I have not filed a charge
4
Plaintiff marked on the questionnaire that he was also subject to discrimination based his gender. (Dkt. No.
8, Ex. 1 at 2.). Because he makes no reference to such discrimination in his pleadings, the court will assume that he
is no longer proceeding with this claim.
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with the EEOC. I also understand that I could lose my rights if I do not file a charge in time.” Id.Finally, the Questionnaire contains the following statement: “this questionnaire may serve as a
charge if it meets the elements of a charge.” (Id. at 5.). This language, in conjunction with the
information provided by Plaintiff on the Questionnaire, can reasonably be construed as a request
for EEOC action. See Tucker v. Howard University Hospital, 764 F. Supp. 2d 1, 7 (D.D.C. 2011)
(noting that completing the Intake Questionnaire alone can amount to a request for agency
action, and therefore, a “charge” under Holowecki); Hodge, 666 F. Supp. 2d at 22 (same); Bland
v. Fairfax County, VA., 799 F. Supp. 2d 609, 618 (E.D. Va. 2011) (same); Stewart v. SEIU
United Healthcare Workers-West, 2012 WL 1357633, *3 (N.D. Cal. April 17, 2012) (same).
Finally, Defendant misrepresents the holding of Federal Express Corp. v. Holowecki, 552
U.S. 389 (2008). According to Defendant, Holowecki stands for the proposition that “an EEOC
Intake Questionnaire, without more, does not meet the standard for an EEOC charge” and that
there is an additional requirement that an affidavit be included with the questionnaire in order to
constitute a charge. (Dkt. No. 8 at 5-6.). The Supreme Court’s holding in Holowecki imposes no
such requirement. Instead the court held that:
In addition to the information required by the regulations, i.e., an allegation
and the name of the charged party, if a filing is to be deemed a charge it
must be reasonably construed as a request for the agency to take remedial
action to protect the employee’s rights or otherwise settle a dispute between
the employer and the employee.
Id. at 402. Accordingly, the “import of Holowecki is not that a detailed description of facts
underlying a charge must be included in a filing, but rather, that a filing constitutes a charge if it
can reasonably be construed as a request for agency action.” Tucker, 764 F. Supp. 2d at 7. The
court concludes that the Intake Questionnaire that Plaintiff filed on October 8, 2009 can be
reasonably interpreted as a request for the EEOC to take action on his behalf and is, therefore, a
12
charge within the meaning of the statute of limitations. Defendant’s motion to dismiss Counts 9-
15 will be denied.
2. The DCHRA Claims
Next, Defendant argues that Plaintiff’s DCHRA claims (Counts 3 through 8) are time-
barred by the DCHRA’s one-year statute of limitations. Dismissal based on this affirmative
defense is appropriate when the facts giving rise to the statute of limitations defense are clear
from the face of the complaint. See Ndondji v. InterPark, Inc., 768 F. Supp. 2d 263, 280 (D.D.C.
2011) (citing Smith–Haynie v. Dist. of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)). A court
may dismiss a claim on statute of limitations grounds if “no reasonable person could disagree on
the date” on which the cause of action accrued. Smith v. Brown & Williamson Tobacco Corp., 3
F. Supp. 2d 1473, 1475 (D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890
F.2d 456, 463 n. 11 (D.C. Cir. 1989)). “[B]ecause statute of limitations issues often depend on
contested questions of fact, dismissal is appropriate only if the complaint on its face is
conclusively time-barred.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996).
D.C. Code § 2-1403.16(a) provides that “[a] private cause of action pursuant to [the
DCHRA] shall be filed in a court of competent jurisdiction within one year of the unlawful
discriminatory act[.]” However, filing a complaint with the D.C. Office of Human Rights “tolls
the running of the statute of limitations while the complaint is pending.” Thompson v. District of
Columbia, 573 F. Supp. 2d 64, 67 (D.D.C. 2008); see also, Adams v. District of Columbia, 740
F. Supp. 2d 173, 183 (D.D.C. 2010) (same). Plaintiff filed a complaint with the D.C. Office of
Human Rights on February 23, 2011. 5 (See Dkt. No. 11, Ex. 5.). The office dismissed the
5
In addressing Defendant’s affirmative defense concerning the timeliness of his DCHRA claims, Plaintiff
asserted in his Opposition—for the first time—that he filed a charge with the D.C. Office of Human Rights on
February 23, 2011. (See Dkt. No. 11 at 12.). He attached a copy of the complaint to the Opposition. (Id. at Ex. 3, see
also, Ex. 5 (letter from the D.C. Office of Human Rights confirming that Plaintiff filed a charge with it on February
13
complaint on May 9, 2011 after Plaintiff initiated the instant complaint. Id. Accordingly, the
statute of limitations was tolled as of February 23, 2011 and the controlling question is whether
Plaintiff alleges that a discriminatory act occurred within one year prior to that date. With this in
mind, the court will now turn to the claims.
Plaintiff raises four claims under the DCHRA: (1) failure to accommodate his disability;
(2) hostile work environment on the basis of race; (3) unlawful discharge on the basis of race and
disability; and (4) retaliation for engaging in a protected EEO activity. (See Dkt. No. 11 at 8, n.
6.). The application of the statute of limitations to each claim varies; as such, the court will
address each separately.
a. The DCHRA Accommodation Claim
A reasonable accommodation claim under the DCHRA is based on discrete acts, not
prolonged or repeated conduct. Barrett v. Convington & Burling LLP, 979 A.2d 1239, 1248
(D.C. 2009) (adopting the reasoning of National R.R. Passenger Corp. v. Morgan, 536 U.S. 101(2002). See also Davidson v. American Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003)
(applying Morgan to reasonable accommodation claims and holding that “plaintiffs are now
expressly precluded from establishing a continuing violation exception for alleged discrete acts
of discrimination occurring prior to the limitations period, even if sufficiently related to those
23, 2011)). Defendant argues that the court should disregard this evidence because Plaintiff failed to allege facts
pertaining to the same in the Amended Complaint. (See Dkt. No. 13 at 11.). The court disagrees. In deciding a
12(b)(6) motion, a court may consider “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.” Gustave-
Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted); Cole v. Boeing Co., ___ F. Supp. 2d
___, 2012 WL 661967, *5 (D.D.C. 2012) (same). A court may consider extrinsic documents not expressly reference
in the complaint without converting the motion to a summary judgment motion if the document is a matter of public
record which the court may take judicial notice. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001). Defendant does not dispute the content nor the authenticity of the complaint filed with the D.C. Office of
Human Rights, and there is no unfairness to either party in considering the document. Accordingly, the court will
take judicial notice of it. See, e.g., Williams v. Chu, 641 F. Supp. 2d 31, 34 (D.D.C. 2009) (taking judicial notice of
an EEOC decision); Muhammad v. New York City Transit Auth., 450 F. Supp. 2d. 198, 204-205 (S.D.N.Y. 2006)
(holding that plaintiff’s EEOC charge and the agency’s determination are both public records, of which the court
may take judicial notice), see also, Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)
(noting that failure to “plead around” a likely affirmative defense is typically not a proper basis for dismissal).
14
acts occurring within the limitations period”); Isse v. American University, 540 F. Supp. 2d 9, 28
(D.D.C. 2008) (same). Consequently, the statute of limitations bars any claim for relief based on
denials of accommodation or revocation of accommodation that occurred more than one year
prior to the filing of the complaint. Barrett, 979 A.2d at 1249.
Plaintiff alleges the following in support of his failure to accommodate claim: (1) in
October 2007, Ms. Potts threatened to reprimand, suspend, and/or terminate Plaintiff if he did not
follow her instructions with regard to an assignment the violated his medical limitations; (2) in
2008, Mr. Wilson threatened Plaintiff by noting that Plaintiff would not be employed at the
University much longer; (3) Ms. Fedor placed several reprimands in Plaintiff’s personnel file
related to his physical disability; (4) in 2009, Ms. Fedor gave Plaintiff a failing score on his
performance evaluation; (5) in September 2009, Ms. Fedor threatened to discipline Plaintiff if he
did not complete a fingerprinting assignment that exceeded the scope of his reasonable
accommodation; and (6) on April 14, 2010, Defendant sent Plaintiff a letter threatening to
terminate him unless he returned to work by April 26, 2010. (Dkt. No. 9.). Of these allegations,
only the April 14, 2010 letter falls within the applicable one-year limitation. The remaining five
allegations pre-date February 23, 2010 and cannot support Plaintiff’s failure to accommodate
claim.
Threatening to terminate and/or terminating someone based on his or her disability can be
the basis for such a claim under the DCHRA. See, e.g. Green v. American Univ., 647 F. Supp. 2d
21, 38-39 (D.D.C. 2009). Nevertheless, the court finds that this claim also fails. Plaintiff asserts
that his “physical disability, exacerbated by Defendant’s failure to accommodate him and in
conjunction with the hostile work environment, caused him severe stress and anxiety.” (Dkt. No.
7 at ¶ 87.). He asserts that “[a]s a result, [he] went out on FMLA leave from October 2009 until
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March 2010 [and] during that time [he] began seeing a therapist for stress, anxiety and
depression.” (Id. at ¶¶ 88-89.). In other words, Plaintiff alleges that he took FMLA leave due to
“stress, anxiety and depression” not due to his physical disability. (See Id. at ¶ 90 alleging that
that he provided “Defendant with a note from his therapist stating that he was still under doctor’s
care….”) (emphasis added). Moreover, the University did accommodate his leave request—
twice. It granted Plaintiff FMLA leave from October 2009 to March 24, 2010, and then, per his
request, extended the leave to April 26, 2010. (Dkt. No. 7 at ¶¶ 88, 90 and 92.). Thus, even
accepting Plaintiff’s allegations as true, as this court must do in deciding this motion, Plaintiff
has failed to state a viable accommodation claim under the DCHRA. Count 3 will be dismissed.
b. The DCHRA Hostile Work Environment Claim
Next, Defendant argues that Plaintiff’s hostile work environment is time-barred. To make
out a claim under the DCHRA for creating a hostile work environment, a plaintiff must prove
“(1) that he is a member of a protected class, (2) that he has been subjected to unwelcome
harassment, (3) that the harassment was based on membership in the protected class, and (4) that
the harassment is severe and pervasive enough to affect a term, condition, or privilege of
employment.” Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 888 (D.C. 2003) (en banc)
(citation omitted); Cole v. Boeing Co., ___ F. Supp. 2d. ___, 2012 WL 661967, *8 (D.D.C.
2012) (same). The Supreme Court has held “that consideration of the entire scope of a hostile
work environment claim, including behavior alleged outside the statutory time period, is
permissible ... so long as an act contributing to that hostile environment takes place within the
statutory time period.” Morgan, 536 U.S. at 105 (2002); see also Lively, 830 A.2d at 890(adopting this approach). In order to render earlier incidents timely, the conduct that falls within
the limitations period must contribute to a hostile environment, in other words, an environment
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that is “permeated 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.” Daka, Inc. v. Breiner, 711 A.2d 86, 93 (D.C. 1998) (citations and punctuation
omitted); Harris v. Wackenhut Servs., Inc., 590 F. Supp. 2d 54, 77 (D.D.C. 2008) (same).
“[I]solated incidents of offensive conduct do not amount to actionable [workplace] harassment.”
Smith v. Jackson, 539 F. Supp. 2d 116, 138 (D.D.C. 2008) (citation omitted).
Here, Plaintiff alleges that he was subjected to a hostile work environment on the basis of
race, including racial comments, numerous reprimands, and racial slurs. He claims that his
supervisors repeatedly ignored his concerns and instead reprimanded him for being
argumentative, insubordinate and unprofessional. (Dkt. No. 7 at ¶¶ 42, 44-45, 53, 56, 58, 63-64,
66, 70, 72-73, 78, 82, 84 and 86.). Plaintiff further alleges that instead of assisting him in
resolving these issues, Defendant repeatedly threatened his job security. Id. at ¶¶ 43, 63, 73, 82,
86 and 92. But, again, the only incident that took place within the requisite timeframe is the April
14, 2010 letter.
Plaintiff argues that the letter constituted yet another unlawful employment practice that
was part of the overarching hostile work environment. The court disagrees. The letter was not
“hostile” as that term has been construed in the relevant case law. The communication was
professional and amiable. According to Plaintiff’s own testimony, the letter stated:
If you cannot return to duty on April 26, 2010 the University can no longer
hold your position. This means you will be terminated based on your
inability to return to duty…We hope you are recovered and ready to return
to full duty and will see you on the 26th.
(Dkt. No. 11 at 13.). This letter contains no abusive or inappropriate language. It simply notifies
Plaintiff that he is expected to return to work by April 26th or his position with the University
will be terminated. Simply put, no reasonable jury could find that this letter contributed to a
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hostile work environment. See, e.g., Barrett, 979 A.2d at 1247 (conversation with HR Director
that was polite and amenable, but in which employer indicated that it would not accommodate
plaintiff with a reduced work schedule, did not contribute to hostile work environment); Rattigan
v. Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C. 2007) (noting that if an employee is discriminatorily
denied ten promotions over a period of time, that pattern of conduct may give rise to ten separate
claims under Title VII, but it would not create a hostile work environment claim based on
pervasive intimidation, insult, and ridicule); Glenn v. Williams, 2006 WL 401816, *34 (D.D.C.
2006) (finding that a threat to terminate did not contribute to a hostile work environment because
it was nothing more than an “ordinary tribulation[] of the workplace that is not actionable”).
Accordingly, Plaintiff’s hostile work environment claim under DCHRA is time-barred. Count 4
will be dismissed.
c. The DCHRA Wrongful Termination Claims
Defendant argues that Counts 5 through 8 are untimely because the April 14, 2010 letter
placed Plaintiff on notice that his position would be terminated if he did not return to work on or
before April 26, 2010. Plaintiff filed this action on April 27, 2011, a year after he was
terminated, but, Defendant argues, a year and one day after he had unequivocal notice of his
termination. (See Dkt. No. 9 at 8.). Therefore, Defendant maintains, Plaintiff’s DCHRA
termination claims are time-barred. Id.Under D.C. and federal case law, a plaintiff is terminated from employment when he
receives “final, unequivocal, and definite” notice of [his] termination, even if the effective date
occurs later. Sharma v. District of Columbia, 791 F. Supp. 2d 207, 214 (D.D.C. 2011) (quoting
Del. State College v. Ricks, 449 U.S. 250, 259 (1980)); Chardon v. Fernandez, 454 U.S. 6, 8
(1981) (to determine the moment of discharge, “the proper focus is on the time of the
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discriminatory act, not the point at which the consequences become painful”) (emphasis in
original); Stephenson v. American Dental Ass’n, 789 A.2d 1248, 1252 (D.C. 2002) (finding that
termination occurred on March 29, 1996 when employee received a written memorandum on
March 29, 1996 notifying him that his last day of employment would be May 28, 1996);
LoPiccolo v. American University, 2012 WL 19389, *5 (D.D.C. 2012) (noting that in
employment discrimination cases, wrongful termination claims accrue when plaintiff is notified
of his or her termination).
“The test of whether or not an employee has been discharged depends upon the
reasonable inference that the employee[] could draw from the language used by the employers.”
Barrett, 979 A.2d at 1251 (quoting Liberty Mutual Ins. Co. v. NLRB, 592 F.2d 595, 604 (1st Cir.
1979)). “No formal discharge is required if the words or conduct of the employer would
reasonably lead an employee to believe that he had been fired.” Id. (citing Elastic Stop Nut
Division of Harvard Indust., Inc. v. NLRB, 921 F.2d 1275, 1282 (1990)); Cesarano v. Reed
Smith, LLP, 990 A.2d 455, 467 (D.C. 2010) (a notice of termination is not “final, unequivocal,
and definite” if the possibility of returning to work remains open).
Defendant argues that Plaintiff received “final, unequivocal, and definite” notice of his
termination when it sent the April 14, 2010 letter. It argues that a reasonable employee in
Plaintiff’s position would know, unequivocally, from the language in the letter that if he did not
show up to work on April 26, 2010, he would no longer have a job with the University.
Therefore, Defendant maintains, for purposes of determining the moment of discharge, April 26,
2010 was the date of the allegedly discriminatory act. As such the statute of limitations began to
run on that day and expired one year later on April 26, 2011—one day before Plaintiff filed his
complaint.
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Plaintiff responds that he did not have unequivocal notice of his termination. He claims
he was hopeful that he would be able to return to work by April 26th, and that the April 14th
letter left open the prospect that Plaintiff would return to work. Thus, Plaintiff argues, the April
14th letter “was not final, unequivocal, or definite and failed to reasonably lead Plaintiff to
conclude that he [had been fired].” (Dkt. No. 11 at 14.).
The court concludes that the April 14, 2010 letter constituted clear and unequivocal
notice to Plaintiff of his termination. A reasonable employee in Plaintiff’s position would know,
unequivocally, from the plain language in the letter, that when he did not show up to work on
April 26, 2010, he no longer had a job. Therefore, April 26, 2010 is the date of the allegedly
discriminatory act and that is the date that the statute of limitations began to run. Accordingly,
Counts 5 through 8 are time-barred and Defendant’s motion will be granted as to those claims.
d. The DCHRA Retaliation Claim
Under the DCHRA, it is an unlawful discriminatory practice for an employer to retaliate
against a person on account of that person’s opposition to any practice made unlawful by the
DCHRA. See Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. App. 1994). The elements of a
retaliatory claim are the same under DCHRA as under the federal employment discrimination
laws. Howard, 652 A.2d at 45. A prima facie case of retaliation requires a plaintiff to show: (1)
that he was engaged in a statutorily protected activity or that he opposed practices made unlawful
by the DCHRA; (2) that his employer took adverse personal action against him; and (3) that a
casual connection existed between the two. Id. at 44; Barnes v. Small, 840 F.2d 972, 976 (D.C.
Cir. 1988) (citing McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)).
In Count 7 of his complaint, Plaintiff alleges that he “repeatedly engaged in protected
activity by opposing Defendant’s discriminatory practices, filing complaints of perceived
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discrimination and requesting and availing himself of an accommodation for his disability.”
(Dkt. No. 7 at ¶ 135.). He claims that the University was aware of his participation in such
protected activities and, as a result, subjected him to “a retaliatory and hostile work
environment.” (Id. at ¶ 137.). Defendant counters that the one year statute of limitations has run
on all of the acts alleged by Plaintiff that happened prior to April 27, 2010. As such, Defendant
maintains, Count 7 must be dismissed.
As discussed previously, the relevant time-period is the year prior to February 23, 2010,
and again, the only alleged act that occurred during that timeframe was the April 14, 2010 letter.
However, a close reading of the Amended Complaint reveals that Plaintiff never alleges that this
letter, or his ultimate termination, was the result of his participating in protected activity.
Plaintiff asserts that “[b]ecause of [his] participation in the EEO process and opposition to
Defendant’s discriminatory practices, Defendant subjected [him] to a retaliatory and hostile work
environment.” (Dkt. No. 7 at ¶ 137.). Such vague allegations cannot survive a Rule 12(b)(6)
motion. See Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (a complaint must include
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.”). Indeed, Plaintiff failed to respond to Defendant’s argument pertaining to Count 7
in his Opposition to Defendant’s motion. As such, Claim 7 will be dismissed.
3. The Section 1981 Claims
Plaintiff alleges in Counts 1 and 2 of the Amended Complaint that Defendant subjected
him to a hostile work environment and terminated him on the basis of his race in violation of
Section 1981. (See Dkt. No. 7 at ¶¶ 95-106.). Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every State and Territory to make
and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). In the
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employment context, Section 1981 prohibits discrimination with respect to “the enjoyment of
benefits, privileges, terms, and conditions of a contractual relationship.” Tnaib v. Document
Technologies, LLC, 450 F. Supp. 2d 87, 91 (D.D.C. 2006) (citing Patterson v. County of Oneida,
N.Y., 375 F.3d 206, 224 (2nd Cir. 2004)) (internal citation omitted).
Defendant seeks dismissal of these claims on the ground that the Amended Complaint
does not state a claim entitling Plaintiff to relief under Section 1981. With respect to Plaintiff’s
hostile work environment claim under Section 1981, Defendant contends that Plaintiff alleges
“very few facts of racially discriminatory behavior,” and those facts that he does allege, do not
rise to the level of a “hostile work environment.” (Dkt. No. 13 at 9, 11.). As to Plaintiff’s Section
1981 discriminatory termination claim, Defendant argues that Plaintiff cannot establish a prima
facie case for such a claim because his own allegations “reveal that he was not performing his
job in a satisfactory manner,” nor has Plaintiff alleged that “his position was filled by a person
outside his protected class.” (Id. at 18.). The court will address each argument in turn.
a. The Section 1981 Hostile Work Environment Claim
As discussed, infra, a hostile work environment occurs “[w]hen the workplace is
permeated 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.” Harris, 510 U.S. at 17 (citation and quotation marks omitted); Peters v. District of
Columbia, ___ F. Supp. 2d ___, 2012 WL 1255139 (D.D.C. 2012). The Supreme Court in Harris
explained that assessing whether a hostile work environment exists has both subjective and
objective components. Thus, no violation is present “if the victim does not subjectively perceive
the environment to be abusive” and the conduct “is not severe or pervasive enough to create an
objectively hostile or abusive work environment.” Harris, 510 U.S. at 21–22. The Supreme
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Court has acknowledged that the boundaries of what constitutes an objectively discriminatorily
hostile work environment is not “a mathematically precise test.” Peters, 2012 WL 1255139 at
*18 (quoting Harris, 510 U.S. at 22). The “objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s position, considering all the
circumstances.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998) (internal
quotations and citations omitted). This objective test requires examination of the totality of the
circumstances, including “the frequency of the discriminatory [or retaliatory] 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.” Peters, 2012 WL
1255139 at *18 (quoting Harris, 510 U.S. at 23).
The Supreme Court has made clear that Title VII does not establish a “general civility
code for the American workplace.” Peters, 2012 WL 1255139 at *18 (quoting Oncale, 523 U.S.
at 80). 6 To “[prevent] Title VII from expanding into a general civility code,” the Supreme Court
has emphasized as “crucial” the requirement that the behavior be “so objectively offensive as to
alter the conditions of the victim’s employment.” Peters, 2012 WL 1255139 at * 18 (quoting
Oncale, 523 U.S. at 81). Bosses may be harsh, unfair and rude, but conduct so characterized does
not necessarily rise to the level of a Title VII violation. Peters, 2012 WL 1255139 at *18; see
also, Bryant v. Brownlee, 265 F. Supp. 2d 52 (D.D.C. 2003).
Taken together, the Supreme Court’s guidance about the requisite elements for a hostile
work environment claim has been enumerated as follows: the plaintiff must show that (1) he is a
member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment
occurred because of the plaintiff’s protected status; (4) the harassment was severe to a degree
6
“Claims alleging a hostile work environment under § 1981 are analyzed using the same standards at Title
VII claims.” Elmahdi v. Marriott Hotel Services, Inc., 339 F.3d 645, 652 (8th Cir. 2003) (citing Greer v. St. Louis
Reg’l Med. Cent., 258 F.3d 843, 847 (8th Cir. 2001).
23
which affected a term, condition, or privilege of employment; and (5) the employer knew or
should have known about the harassment, but nonetheless failed to take steps to prevent it.
Peters, 2012 WL 1255139 at *19; Dorns v. Geithner, 692 F. Supp. 2d 119, 135–36 (D.D.C.
2010).
Here, Plaintiff alleges that on nearly a daily basis, he endured offensive and insensitive
remarks about his race and overall appearance: “[t]hroughout his employment with Defendant,
Plaintiff was subjected to a hostile work environment on the basis of race as evidenced by
pervasive, negative racial comments made about him” and “on almost a daily basis” he was
“ostracized, belittled, and criticized by his supervisors.” (Dkt. No. 7 at ¶¶ 3 and 97; see also ¶ 74
(“on an almost daily basis, [Plaintiff] endured offensive and insensitive remarks about his race
(black) and overall appearance (large).). Specifically, Plaintiff describes the following conduct,
allegedly occurring over a three year period: (1) from the moment he was placed on administrate
duty in April 2007, he felt “ostracized, unwelcome and singled out for adverse treatment” and
treated by his supervisors in “a rude and demeaning manner”; (2) in October 2007, his direct
supervisor, Ms. Fedor, allegedly told Plaintiff that he was “lazy, incompetent, and that he lacked
integrity;” (3) another supervisor allegedly agreed with Ms. Fedor’s assessment of Plaintiff; (4)
on April 30, 2008, Ms. Fedor allegedly threw a report at him and made a rude remark to him; (5)
also on April 30, 2008, another supervisor allegedly referred to Plaintiff as “boy” and told him
that he would not be working at the University “much longer”; (6) on May 5, 2008 Ms. Fedor
issued Plaintiff a reprimand for his conduct during the April 30th incident, claiming that his
“demeanor was unprofessional, inappropriate, and negatively impact[ed] the public’s image of
[the] Department”; (7) in October 2008, Ms. Fedor allegedly told Plaintiff that she did not want
to upset him because he is “such a big black guy and [he] look[s] mean all of the time”; (8) he
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was counseled and reprimanded multiple times for his attitude, demeanor, and refusal to carry
out his assigned tasks; (9) in 2009 he was given a negative performance review; (10) in July
2009, Ms. Fedor allegedly told Plaintiff to “stay out of trouble” and “don’t get locked up”; and
(11) on October 1, 2009, he was suspended for five days for insubordination. (Dkt. No. 7 ¶¶ 40,
42, 44, 47-48, 53, 69-71, 73-75, 84, and 86-87.). Plaintiff claims that this “persistent abuse”
caused him to “suffer[] a mental health breakdown.” (Id. at ¶ 87.).
The court concludes that Plaintiff has alleged sufficient facts that are probative of a
discriminatory hostile work environment. The parties do not dispute that Plaintiff is a member of
a protected class, that he personally felt his work environment was hostile, or that Defendant
knew or should have known of the alleged harassment. Also, Plaintiff has pled sufficient facts,
which if accepted as true, establish a plausible casual connection between the harassment and his
status as a member of a protected class. See Baloch v. Kempthrone, 550 F.3d 1191, 1201 (D.C.
Cir. 2008) (court must look to whether the comments or actions at issue “expressly focused” on
the plaintiff’s protected class). In addition, Plaintiff alleges that the discriminatory conduct
occurred nearly every day for three years. Accepting this allegation as true, the court finds that a
reasonable person could plausibly find that conduct of nature alleged, committed with the
frequency and duration alleged, was sufficiently pervasive to “produce a constructive alternation
in the terms or conditions of [his] employment.” Tucker, 764 F. Supp. 2d at 10 (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). “Even today, all that is required of
the amended complaint at this stage is that it provide enough factual heft to show a plausible
entitlement to relief; that is, that it contain “enough facts to [nudge] a claim to relief…across the
line from conceivable to plausible [.]” Winston v. Clough, 712 F. Supp. 2d 1, 13 (D.D.C. 2010)
(citing Twombly, 550 U.S. at 570) (noting that plaintiff’s claim, construed in the light most
25
favorable to him despite its sparse nature, sufficiently alleges facts that could be probative of a
discriminatory hostile work environment claim); see also, Tucker, 764 F. Supp. 2d at 9-10(finding complaint adequately pleaded a hostile work environment claim by asserting that “the
discriminatory conduct occurred nearly every day for over four years); Holmes-Martin v. Leavitt,
569 F. Supp. 2d 184, 193 (D.D.C. 2008) (denying motion to dismiss claim of hostile work
environment because the plaintiff “alleged some conduct in support of her claim,” and noting
that a plaintiff is required to plead facts which “support,” not “establish,” the claim).
Accordingly, Defendant’s motion to dismiss is denied as to Count 1.
2. Discriminatory Discharge under Section 1981
Finally, Defendant argues that Plaintiff has failed to establish a prima facie claim for
discriminatory treatment under Section 1981. (See Dkt. No. 13 at 18.). To establish a prima facie
case of discriminatory discharge, Plaintiff must establish that he belonged to a protected class,
that he performed at or near the level legitimately expected by his employer, that he was
discharged, and that he was replaced by a person outside the protected class. See Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1512 (D.C. Cir. 1995). However, Plaintiff
correctly observes that he does not have to plead facts in his complaint that establish a prima
facie case, he need only plead facts that make the claim plausible. Twombly, 550 U.S. 569-570
(discussing Swiekiewicz v. Sorema N.A., 534 U.S. 515 (2002)).
Plaintiff’s allegations are sufficiently specific to survive a motion to dismiss. He has
alleged that he is a member of a protected class and that he had the requisite knowledge, skills
and abilities to perform his job duties. (See Dkt. No. 7 at ¶¶ 35-36, 38 and 62.). While Plaintiff
does not identify any similarly situated non-minorities who were treated differently, at this early
stage in these litigation proceedings, the court declines to dismiss Plaintiff’s Section 1981 claims
26
on this ground. Defendant urges the court to dismiss Plaintiff’s claim on the ground that he is
unable to establish that he was performing his job at a satisfactory level in light of his various
reprimands and disciplinary actions. (See Dkt. No. 13 at 18.). But, this is putting the cart before
the horse. Plaintiff argues that such disciplinary actions were the result of a discriminatory and
retaliatory bias, an argument that he is entitled to explore further through discovery.
Accordingly, Defendant’s motion will be denied as to Count 2.
V. CONCLUSION
Based on the foregoing, it is HEREBY ORDERED that Defendant’s Motion to Dismiss is
GRANTED in part and DENIED in part. Counts 3 through 8 in the Amended Complaint are
dismissed.
Dated this 18th day of July, 2012.
A
Barbara Jacobs Rothstein
U.S. District Court Judge
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