Lewis v. District of Columbia Public Schools

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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ANGEL LEWIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-01999 (RMC)
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DISTRICT OF COLUMBIA, )
)
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Defendant. )
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MEMORANDUM OPINION
Angel Lewis is a former employee of the District of Columbia Public Schools.
She brought this suit against the District of Columbia, alleging (1) retaliation for protected
activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. and
(2) wrongful discharge and retaliation for seeking workers’ compensation in violation of D.C.
Code § 32-1542 and § 1532. The District moves for partial dismissal for failure to state a claim.
The Court will grant in part and deny in part the motion.
I. FACTS
For all times relevant to this matter, Ms. Lewis, an African-American, was
employed at Kelley Miller Middle School with the District of Columbia Public Schools as the
Assistant Principal of Intervention and the Assistant Principal for Eighth Grade. Am. Compl.
[Dkt. 3] ¶ 6, 8, 11. The Principal at the Middle School, Cathy Crocker, is Caucasian. Id. ¶ 10.
In October of 2009, Ms. Crocker gave Ms. Lewis a negative evaluation. Ms. Lewis filed a
grievance with the Washington Teachers’ Union (“Union”) regarding the evaluation, claiming
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that Ms. Crocker failed to follow requisite procedures. The Union persuaded management to
invalidate Ms. Lewis’s evaluation. Id. ¶ 12, 17-19.
In November of 2009, Ms. Lewis complained to Marlene Magrino, an Assistant
Principal, of race discrimination by Ms. Crocker. Ms. Magrino is Caucasian. Id. ¶ 22-23. Ms.
Lewis alleges that following this complaint, Ms. Crocker required her to develop and follow a
daily schedule and to receive approval from Ms. Crocker before making decisions. Ms. Lewis
claims that she was the only Assistant Principal subject to these requirements. Ms. Lewis also
states that Ms. Crocker instructed Ms. Lewis to provide a schedule reminder to eighth grade
teachers, which Ms. Crocker subsequently told the teachers to disregard, and that Ms. Crocker
permitted any Assistant Principal to fill out suspension documents, which included Ms. Lewis’s
name as the suspending official, without her knowledge. Id. ¶ 24-28.
On March 23, 2010, Ms. Lewis filed a complaint with the Office of Labor
Management and Employee Relations. Id. ¶ 29. After receiving a letter from an Equal
Employment Officer, she filed a formal complaint with the D.C. Office of Human Rights
(“OHR”) on May 7, 2010. Id. ¶ 30-31; Resp. to Order of the Ct. [Dkt. 9], Ex. B (Initial Formal
Charge). Also during May, Ms. Lewis slipped and fell on water that several students had thrown
at Ms. Crocker, injuring her right knee and right ankle. Am. Compl. ¶ 33. Ms. Lewis asserts
that Ms. Crocker failed to file workers’ compensation documents regarding these injuries on
time. As a result, Ms. Lewis claims that she was required to pay for most of her hospital bills.
Id. ¶ 36-38.
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On June 25, 2010, while on medical leave, Ms. Lewis was terminated for lack of
performance. 1 Id. ¶ 39-40. Ms. Lewis states that she was mailed a right to sue letter from the
Equal Employment Opportunity Commission (“EEOC”) on August 12, 2011. Id. ¶ 42.
Based on these facts, Ms. Lewis brought a two-count Complaint against the
District of Columbia2 on November 10, 2011.3 Count I states that the District took adverse
action against Ms. Lewis for protected activities in violation of Title VII by: (1) giving her a bad
evaluation, (2) falsifying her attendance record, (3) failing to file the required workers’
compensation documents on time, and (4) terminating her. Count II alleges that the District fired
her solely because she filed a workers’ compensation claim and took adverse action against her
by not filling out workers’ compensation documents, in violation of D.C. Code § 32-1542 and
§ 1532 respectively.
The District now moves to dismiss the amended complaint, in part, for failure to
state a claim. Specifically, it moves to dismiss: (1) all but one of Ms. Lewis’s retaliation claims
under Title VII because (a) the bad evaluation occurred a month before Ms. Lewis claims she
engaged in the protected activity, (b) falsification of timesheets does not constitute adverse
action, and (c) the Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-623.01 et
1
Ms. Lewis filed a “final” formal complaint with OHR on June 15, 2010, which provided the
specifics of her allegations. This complaint stated that on May 24, 2010, she received a letter
informing her that Ms. Crocker refused to process her workers’ compensation claims. She also
stated in the complaint that in early June she received a letter informing her that she “would no
longer be reappointed . . . for the 2010-2011 school year” and that her termination would be
effective June 25, 2010. See Resp. to Order of the Ct. [Dkt. 9], Ex A. (Final Formal Charge).
2
Ms. Lewis initially brought this suit against the District of Columbia Public Schools. On
February 6, 2012, she filed an amended complaint changing the Defendant to the District of
Columbia. See Am. Compl. [Dkt. 3] ¶ 2.
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Ms. Lewis filed her complaint with this Court within ninety days of the receipt of her right-to-
sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (requiring a civil suit be brought within
ninety days of receiving notice from the EEOC).
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seq., provides her exclusive remedy for her claim regarding workers’ compensation documents;
and (2) Ms. Lewis cannot bring either a wrongful discharge or retaliation claim under D.C. Code
§ 32-1542 because the CMPA is the exclusive remedy for a District employee who has a work-
related grievance of any kind. The motion to dismiss will be granted in part and denied in part.
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “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 and citation omitted). Although a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is “plausible on its face.” Id. at 570.
A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.” Id. at 555. But a court need not accept as true legal conclusions set forth in a complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion under Rule 12(b)(6), a court
may consider the facts alleged in the complaint, documents attached to the complaint as exhibits
or incorporated by reference, and matters about which the court may take judicial notice. Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
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III. ANALYSIS
A. Count I
In Count I, Ms. Lewis asserts retaliation for protected activity in violation of Title
VII. Title VII’s antiretaliation provision prohibits an employer from “discriminat[ing] against”
an employee because he has “opposed” a practice proscribed by Title VII or because “he has
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing.” 42 U.S.C. § 2000e-3(a). “To prove unlawful retaliation, a plaintiff must show:
(1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a
materially adverse action against him; and (3) that the employer took the action ‘because’ the
employee opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012).
Title VII’s antiretaliation provision does not protect an employee from all retaliation, but
only from that “retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006). To establish a materially adverse action, “a plaintiff must show
that a reasonable employee would have found the challenged action materially adverse, ‘which in
this context means it well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.’” Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.
Cir. 2006) (internal quotation marks omitted)). Materially adverse action does not include
“trivial harms” or “those petty slights [or] minor annoyances” that occur in a workplace. Id. The
standard is an objective one; whether a given act will constitute material adverse action “will
often depend upon the particular circumstances.” Id. at 68-69.
1. Bad Evaluation
The District first challenges the part of Ms. Lewis’s retaliation claim that
concerns the bad evaluation by Ms. Crocker. The District points out that Ms. Lewis alleges that
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Ms. Crocker entered the bad evaluation prior to the occurrence of any protected activity. Thus,
according to the District, Ms. Lewis cannot establish that Ms. Crocker took this action because of
her protected activity. Ms. Lewis concedes that this part of her retaliation claim fails as a result.
See Pl.’s Opp’n to Def.’s Mot. to Dismiss [Dkt. 6] (“Pl.’s Opp’n”) at 3. The bad evaluation as an
alleged retaliatory action under Count I will be dismissed without prejudice. 4
2. Falsification of Time Sheets
The District next challenges the part of Ms. Lewis’s retaliation claim regarding
falsification of time sheets by asserting that the alleged action did not constitute a materially
adverse action against her. The District claims that Ms. Lewis’s assertion in her Amended
Complaint that Ms. Crocker “misrepresent[ed] [her] attendance record by falsely submitting
entries that she was frequently tardy” is insufficient to constitute a materially adverse action.
Am. Compl. ¶ 47. In her opposition, Ms. Lewis frames the adverse action as “[f]alsifying [her]
attendance records and then using her tardiness as a partial basis to terminate [her].” Pl.’s
Opp’n at 4 (emphasis added). While the former assertion may or may not be enough to satisfy
the “materially adverse action” requirement, the latter certainly meets this requirement.
Compare Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (holding that poor performance
evaluations did not constitute materially adverse actions because plaintiff failed to show that the
evaluations affected her “position, grade level, salary, or promotion opportunities” or were
“attached to financial harms” (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir.
2008) (internal quotation marks omitted))), with Weber v. Battista, 494 F.3d 179, 185-86 (D.C.
Cir. 2007) (holding that negative performance evaluations constituted materially adverse action
4
Ms. Lewis states her intention to request leave to amend her complaint a second time “to
resolve inaccuracies or inconsistencies” in her amended complaint, but she has yet to do so and
no additional facts on this matter are presented in the filings. See Pl.’s Opp’n at 3.
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when they “resulted in [the plaintiff] losing a financial award or an award of leave”). By
claiming that Ms. Crocker used the falsified time sheets as a basis for her termination, Ms. Lewis
has alleged a specific financial harm, i.e. the loss of her job, that she experienced as a result of
Ms. Crocker’s action. Such an action might well have “dissuaded a reasonable worker from
making or supporting a charge of discrimination,” White, 548 U.S. at 68, and is thus materially
adverse. Since there is no prejudice to the District at this early stage of the litigation, the Court
will deem Ms. Lewis’s opposition to include a request to amend her Complaint for a second time
to include the allegation that Ms. Crocker “falsified her attendance records and then used her
tardiness as a partial basis to terminate her.” The Court will allow Ms. Lewis to file a second
amended complaint.5
3. Workers’ Compensation Documents
The District claims that the third alleged retaliatory action, that Ms. Crocker failed
to file the required workers’ compensation documents on time, fails because the CMPA provides
her exclusive remedy for such a claim. “The CMPA establishes a merit personnel system for
District employees through which employee grievances and adverse personnel actions are
handled.” Scott v. District of Columbia, 598 F. Supp. 2d 30, 34 (D.D.C. 2009); see D.C. Code
§ 1.601.01 et seq. The CMPA defines “grievances” as “any matter under the control of the
District government which impairs or adversely affects the interest, concern, or welfare of
employees.” D.C. Code. § 1-603.01(10). Generally, the CMPA provides the “exclusive remedy
for a District of Columbia public employee who has a work-related complaint of any kind.”
Baker v. District of Columbia, 785 A.2d 696, 697 (D.C. 2001) (internal quotation marks and
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Failure to file a second amended complaint by the date specified in the Order accompanying
this Memorandum Opinion may result in waiver of Ms. Lewis’s claim that Ms. Crocker took
retaliatory action against her by“[f]alsifying [her] attendance records and then using her tardiness
as a partial basis to terminate [her].”
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citation omitted); see, e.g., Scott, 598 F. Supp. 2d at 34 (dismissing claims for breach of contract,
negligence, and intentional infliction of emotional distress because the plaintiff failed to exhaust
his administrative remedies under the CMPA); Holman v. Williams, 436 F. Supp. 2d 68, 74
(D.D.C. 2006) (noting that common law tort claims are considered grievances and must be
pursued through CMPA procedures).
Ms. Lewis presents two distinct claims for relief with regard to Ms. Crocker’s
alleged inaction on her workers’ compensation claims: (1) Ms. Crocker retaliated against her
because of her protected activity under Title VII by failing to submit the workers’ compensation
documents on time (Count I) and (2) Ms. Crocker retaliated against her because she sought
workers’ compensation benefits (Count II) by failing to submit these documents on time. Thus,
Ms. Lewis has alleged two different claims that can be pled in the alternative. While the CMPA
provides the exclusive remedy for the second claim, see infra Part III.B., the first claim arises
under Title VII which provides separate grounds for relief for proven retaliation. Accordingly,
Ms. Lewis can bring her retaliation claim based upon Ms. Crocker’s failure to file workers’
compensation documents on time under Title VII.
The District also asserts that even if Ms. Lewis can bring this claim under Title
VII, failure to file workers’ compensation documents on time is not, by itself, an adverse
employment action. Ms. Lewis also alleges in her Complaint, however, that as a result of this
failure, she was required to pay for most of her hospital bills. Am. Compl. ¶ 38. Ms. Lewis has
alleged a concrete injury resulting from Ms. Crocker’s alleged inaction and has thus provided a
sufficient basis for concluding that it “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” White, 548 U.S. at 68; see Caruso v. Camilleri, No. 04-
CV-167A, 2008 WL 170321, at * 26 (W.D.N.Y. Jan. 15, 2008) (concluding that actions by the
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defendant, which included the postponement of workers’ compensation benefits, were
“sufficiently adverse to satisfy the third element of [p]laintiff’s retaliation claim”). But see Davis
v. Metro. Transp. Auth., No. 07 Civ. 3561 (DAB), 2012 WL 727696, at *11 (S.D.N.Y. March 6,
2012) (“The difficulties [the plaintiff] experienced in his application for Workers’ Compensation
benefits, though annoying and inconvenient, do not constitute materially adverse action . . . .”).
Ms. Lewis can therefore maintain the failure to file workers’ compensation benefits on time as an
alleged retaliatory action under Count I.
B. Count II
The District claims that Count II should be dismissed because the CMPA provides
the exclusive remedy for Ms. Lewis’s wrongful discharge and retaliation claims that she alleged
as violations of D.C. Code § 32-1542. See D.C. Code § 32-1501(9)(B) (excluding from the
definition of “employee” those individuals subject to the CMPA). Ms. Lewis concedes that these
claims fail on this basis. See Pl.’s Opp’n at 1 n.1. Count II will be dismissed for failure to state a
claim.
IV. Conclusion
For the foregoing reasons, the District’s motion to dismiss [Dkt. 4] will be granted
in part and denied in part. With respect to the bad evaluation as an alleged retaliatory action for
Count I, this claim will be dismissed without prejudice. Count II will be dismissed with
prejudice. With respect to the falsification of time sheets and the failure to file the required
workers’ compensation documents on time as alleged retaliatory actions for Count I, the
District’s motion will be denied.
Additionally, the Court will allow Ms. Lewis to file a Second Amended
Complaint no later than September 17, 2012, should she choose to do so. Failure to file a timely
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amended complaint may result in waiver of potential claims addressed in this memorandum. See
Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so
requires.”). A memorializing Order accompanies this Memorandum Opinion.
Date: August 17, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
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