213 F. Supp. 3d 81
D.D.C.2016Background
- McNair was an Administrative Law Judge at the D.C. Office of Employment Services from 2009–2013 and has disabilities; DOES initially allowed an altered schedule (7:00–3:30) but later rescinded it and denied a work-from-home request.
- McNair continued the modified schedule; DOES marked her AWOL for hours she was not physically present, accruing ~200 AWOL hours and terminating her in October 2013.
- Her Amended Complaint asserted numerous federal, D.C., and common-law claims (including ADA accommodation/retaliation, Title VII/DCHRA race and sex discrimination, EPA, FLSA, NLRA retaliation, DC Whistleblower Protection Act, and several torts).
- The District moved to dismiss Counts 3–11; the court considered pleading sufficiency under Rule 12(b)(6) and established precedent on temporal proximity and notice requirements.
- The court allowed McNair’s race discrimination (Title VII/DCHRA) and FLSA wage claims to proceed, denied dismissal of ADA retaliation (and related DCHRA retaliation), and denied the DC-WPA claim; it dismissed gender discrimination, EPA, Lily Ledbetter standalone claim, NLRA retaliation (for lack of jurisdiction), federal WPA, and all common-law tort claims for failure to comply with D.C. Code § 12-309 notice (some dismissals with prejudice, some without).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Race discrimination (Title VII/DCHRA) | DOES treated McNair differently (denied work-from-home) compared to ALJs of other races | Complaint lacks specifics but refusal to allow WFH is not contested as adverse | Denied dismissal: race discrimination claim plausible and may proceed |
| Sex discrimination (Title VII/DCHRA) | McNair alleges denial/rescission of alternative schedule and nonpromotion | No allegations that men were treated more favorably; allegations are conclusory | Granted dismissal without prejudice: sex discrimination claim fails pleading standard |
| Equal Pay Act | McNair asserts lower starting grade/pay than others doing same work | Does not allege comparator employees were of opposite sex | Granted dismissal without prejudice: EPA claim inadequately pleaded |
| Lilly Ledbetter Act | Alleged pay discrimination invoking Ledbetter | Ledbetter is not a standalone cause of action; it only clarifies accrual for existing statutes | Granted dismissal with prejudice: Ledbetter claim not a separate cause of action |
| FLSA wage claim (AWOL pay withholding) | McNair claims she worked 40 hours but was unpaid for AWOL hours | Dispute concerns whether work was performed/compensable | Denied dismissal: factual allegation of uncompensated work sufficient to proceed |
| Retaliation (Title VII/DCHRA) for EEO complaint (May 2010) | Termination was retaliatory after EEOC complaint | Temporal gap (~3.5 years) too long to infer causation | Granted dismissal without prejudice: Title VII/DCHRA retaliation claim dismissed for lack of causation |
| Retaliation (ADA/DCHRA) for accommodation request (Sept 16, 2013) | Accommodation request was protected and termination followed shortly after | Defendant disputed causation generally | Denied dismissal: ~1 month proximity supports plausible causation at pleading stage |
| NLRA retaliation (union organizing) | Termination for organizing ALJs | Federal courts lack primary jurisdiction over §7/§8 NLRA claims; NLRB has exclusive competence | Granted dismissal with prejudice for lack of subject-matter jurisdiction |
| DC Whistleblower Protection Act | McNair disclosed misuse of public funds to Council; adverse actions (AWOL accruals and termination) followed | Defendant argues causation cannot rest on >3 months gap | Denied dismissal: alleged ongoing adverse actions between disclosure and termination support causation |
| Federal WPA (Whistleblower) | McNair invoked federal WPA | WPA protects federal employees only; McNair is a D.C. employee | Granted dismissal with prejudice: federal WPA inapplicable |
| Common-law tort claims (IIED, NIED, negligent supervision, negligence per se, defamation, conspiracy) | Various tort theories tied to alleged misconduct and termination | Plaintiff failed to give statutory notice to Mayor within 6 months as required by D.C. Code § 12-309 | Granted dismissal with prejudice: §12-309 notice requirement not met; claims dismissed |
Key Cases Cited
- Swierkiewicz v. Sorema N.A., 534 U.S. 506 (U.S.) (pleading standard for discrimination claims does not require prima facie case)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S.) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (conclusory allegations insufficient)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (U.S.) (compensable work under FLSA standard)
- Garmon, San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (U.S.) (NLRB primary jurisdiction over NLRA §7/§8 matters)
- Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir.) (temporal proximity and causation in employment retaliation cases)
- Freedman v. MCI Telecom. Corp., 255 F.3d 840 (D.C. Cir.) (pay diminution is adverse action for causation analysis)
- Hettinga v. United States, 677 F.3d 471 (D.C. Cir.) (Rule 12(b)(6) standards and construing allegations for plaintiff)