Linda CLAY, Plaintiff, v. HOWARD UNIVERSITY et al., Defendants.
Civil Action No. 13-cv-1464 (TSC)
United States District Court, District of Columbia.
Signed March 11, 2015
128 F. Supp. 3d 426
MEMORANDUM OPINION
TANYA S. CHUTKAN, District Judge.
Plaintiff Linda Clay asserts statutory and tort claims against her former employer and supervisor related to the end of her employment in the Human Resources department at Howard University. Defendants Howard University and James Jones have each moved to dismiss Clay‘s complaint, and Clay moved orally to amend the complaint at oral argument on the motions to dismiss on February 11, 2015. For the reasons set forth below, the Court grants Plaintiff‘s motion for leave to amend and grants Jones’ motion to dismiss Count III against him. The Court denies without prejudice the balance of Defendants’ motions to dismiss, which Defendants may renew as to Plaintiff‘s amended complaint.
I. BACKGROUND
Plaintiff, a 50-year old African-American female, joined Howard‘s HR department as a Benefits Analyst in January 2006. (Compl. ¶ 9). She received “excellent performance reviews” and took on “significant responsibility as the sole Benefits Analyst.” (Id.) She was promoted to Senior Benefits Analyst in September 2011. (Id.) In February 2012 her direct supervisor David Greene informed Plaintiff that she would be promoted to a position in the Leadership Academy under Senior HR Director Valeria Stokes. This was an “excellent opportunity to train for advancement.” (Id. ¶ 36).
On February 27, 2012, another HR employee in the Benefits section, Rosemarie Thompson, approached Clay. Several Howard University paystubs had been delivered to Thompson‘s office in error. Neither Clay nor Thompson recognized the name on the paystubs, Cynthia Edwards, as that of a current or former Howard employee. The employee number on the paystubs belonged to another HR employee, Robert Jackson, who was a friend of Edwards‘. (Compl. ¶¶ 26-27).
Given the friendship between Edwards and Jackson, Clay “was concerned that the paystubs had been improperly generated and were fraudulent.” (Compl. ¶ 27). She elected not to report the paystubs to her direct supervisor, David Greene, based on Greene‘s relationship with Jackson and Edwards, all three of whom worked at PRM, a private human resources company which had “numerous contracts” with Howard. (Id. ¶¶ 20, 28). Instead of reporting the paystubs to Greene, Plaintiff reported them to Defendant Jones, who was then Howard‘s Executive Vice President and Chief Human Resources Officer. Although Plaintiff did not know it at the time, Jones was also a partner at PRM. (Id. ¶¶ 18, 20, 28-29).
Plaintiff and Jones met to discuss “the possible fraud relating to the falsified paystubs” on March 2, 2012. (Id. ¶ 30). Jones offered several “extremely far-fetched” explanations and told her he would “handle it” and she shouldn‘t “do anything.” (Id. ¶ 31). Believing that Jones did not intend to address the issue, Plaintiff contacted Howard‘s Internal Auditor, Carroll Little and Antwon Lofton, Director of EEO Compliance. (Id. ¶¶ 32-34). Though Lofton encouraged Plaintiff to discuss the matter with him and to inform him of any retaliation, he did not respond to Plaintiff‘s attempt to set up a meeting. (Id. ¶¶ 34-35).
On March 7, 2012 Jones asked Plaintiff for another copy of the paystubs. (Id. ¶ 37). Senior HR Director Stokes, who had advised Plaintiff to report the pay-
In this same conversation, Jones informed Plaintiff her position had been abolished as part of a Reduction in Force (“RIF“). Jones offered her an HR Generalist position, which he portrayed as a lateral transfer. Plaintiff had no choice but to accept the new position or be terminated. (Id. ¶ 42). When she contacted Michael McFadden, the Senior Director who would be her new supervisor, on March 20, 2012, McFadden was “surprised” to learn that the reassignment was official and for a full-time position. (Id. ¶ 43). The new Generalist position “had no defined responsibilities, and certainly did not have responsibilities commensurate with her previous position as Senior Benefits Analysis.” (Id. ¶ 44). The position also “required several areas of knowledge that Ms. Clay did not possess and for which she was not offered any training.” Given the patchwork of responsibilities, Plaintiff believed the “lateral transfer” was “intended to retard [her] career advancement and set her up for failure” as retaliation for her having reported the false paystubs. (Id. ¶ 45). Thompson, the employee who had initially approached Plaintiff about the paystubs, was terminated on May 18, 2012. (Id. ¶ 47).
In early June 2012 Plaintiff‘s former Senior Benefits Analyst position was posted onindeed.com, a job-advertising website, and was filled on July 15, 2012. Plaintiff‘s female successor did not have the experience or certifications that Plaintiff did, and was paid $9,000.00 more than what Plaintiff had been paid. (Compl. ¶¶ 48, 49). By August 6, 2012,1 “due to the discrimination, hostile work environment, and retaliation,” Plaintiff‘s work conditions had become “intolerable” and she submitted her resignation. (Id. ¶ 50).
Howard terminated Jones for cause in November 2012. (Id. ¶ 51). In December 2012, Plaintiff learned that her former Senior Benefits Analyst position had been posted. Plaintiff submitted an application and received an interview. (Id. ¶ 52). One week after her interview she learned the position had been filled by Jackson, the man whose employee number appeared on the questionable paystubs. Jackson, who was not as qualified as Plaintiff, and had not served in that position before, was paid $14,000.00 more per year than Plaintiff. (Id. ¶ 53).
Plaintiff filed a Charge of Discrimination with the EEOC on November 28, 2012, which she supplemented on April 5, 2013. (Compl. ¶ 8). The EEOC issued a Notice of Right to Sue on June 27, 2013, supplemented with a second Notice (in response to the supplemental charge) on September 17, 2013. Plaintiff filed this lawsuit on September 25, 2013.
The lawsuit asserts five claims under federal and local law. Count I asserts a
II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “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 and citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where “recovery is very remote and unlikely[,]” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action[.]” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep‘t of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013). In testing the complaint‘s sufficiency, a 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.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Leave to amend a complaint should be given “freely” “when justice so requires.”
III. ANALYSIS
a. Counts I-III: Wrongful Discharge in Violation of Public Policy, Title VII and D.C. Human Rights Act
The tort of wrongful discharge in violation of public policy is a limited exception to the general rule in the District of Columbia that an at-will employee may be discharged “at any time and for any reason, or for no reason at all.” Adams v. George W. Cochran & Co., 597 A.2d 28, 30, 34 (D.C. 1991).
(1) a citizen‘s right to engage in political expression before the Council without fear of harassment or intimidation; (2) a professional nurse‘s duty to participate in the legislative process, to advocate positions of public importance on behalf of patients, and to educate the legislature so that it can make informed public policy decisions; and (3) the evidentiary rule requiring expert testimony to establish a prima facie case of negligence in a medical malpractice action.
Id. (footnotes omitted). The trial court dismissed, finding that Adams permitted a claim only for dismissal “based on the refusal to perform an illegal act.” Id. at 161.
The D.C. Court of Appeals reversed, with a plurality of the court holding that that any expansion of the exception “must be firmly anchored either in the Constitution or in a statute or regulation which clearly reflects the particular ‘public policy’ being relied upon.” Id. at 162 (Terry, J.).3 The plurality found such an anchor in a D.C. criminal statute barring efforts to intimidate witnesses from testifying before the D.C. City Council. Id. at 164-65. The Carl opinion requires a plaintiff to make a “clear showing, based on some identifiable policy that has been ‘officially declared’ in a statute or municipal regulation, or in the Constitution, that a new exception” is needed and that there is a “close fit between” the policy “and the conduct at issue in the allegedly wrongful termination.” Davis v. Cmty. Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709-10 (D.C. 2013) (citing Carl and Fingerhut v. Children‘s Nat‘l Med. Ctr., 738 A.2d 799, 803-04 (D.C. 1999)).
Here, Plaintiff‘s claim relies on the general public policy against fraud. Even assuming the Court is prepared to find a firmly anchored public policy based in the illegality of fraud,4 extension of the exception is not appropriate where a statute or regulation provides a cause of action separate and apart from the tort of wrongful discharge. Emory v. United Air Lines, Inc., 821 F. Supp. 2d 200, 239 (D.D.C. 2011); Lockhart v. Coastal Int‘l Sec., Inc., 5 F. Supp. 3d 101, 106 (D.D.C. 2013). Applying this limiting principle, Courts have declined to recognize a valid claim for wrongful discharge where, for example,
Clay has alleged facts which are inextricably intertwined with her Title VII and DCHRA claims. The gravamen of her complaint is that she was punished for reporting suspected fraud while the men who participated in that fraud were not. (Compl. ¶¶ 63, 70). Given this nearly complete factual overlap, the Complaint as pleaded cannot support a claim for wrongful discharge. Because the defect may be cured by amendment, the Court will allow the plaintiff the opportunity to amend to Complaint to disentangle her statutory claims from her wrongful discharge claim, with a reminder that any claim for wrongful discharge “must be firmly anchored either in the Constitution or in a statute or regulation which clearly reflects the particular ‘public policy’ being relied upon.” 702 A.2d at 162 (Terry, J.). Any prejudice to the defendants from the slight delay in resolution of their motions to dismiss is far outweighed by improved clarity and precision of the Complaint.
b. Jones’ Individual Liability under Count I
Defendant Jones also moves to dismiss Count I on the grounds that the cause of action exists only against Howard University and does not provide for individual liability. (Jones Mem. 4-6.)5 Although the D.C. Court of Appeals has not addressed “whether individuals may be held personally liable for the tort of wrongful discharge in violation of public policy,” (Jones Mem. 4), it has “recognized that there may be some circumstances where an individual supervisory employee can be liable for tortious interference with another employee‘s contractual relations with the employer.” (Pl. Jones Opp‘n 13) (quoting Myers v. Alutiiq Int‘l Solutions, LLC, 811 F. Supp. 2d 261, 269 (D.D.C. 2011)).
In Myers, the Court analyzed two D.C. Court of Appeals decisions before allowing plaintiff to proceed on a wrongful discharge claim against an individual supervisor. First, in Press v. Howard Univ., 540 A.2d 733 (D.C. 1988) the D.C. Court of Appeals affirmed dismissal of a complaint against individual defendants for interference with plaintiff‘s employment contract, holding that the defendants, officers of Howard, “were acting as agents of the other party to the contract, and that the University through their actions could not tortuously interfere with its own contract.” Id. at 736. By contrast, in Sorrells v. Garfinckel‘s, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285 (D.C. 1989), the Court held that a supervisory employee who did not have the authority to terminate another employee was not a party to
Jones contends that, as in Press, he was an officer of Howard, with the authority to bind the University, and that he therefore cannot be individually liable. (Jones Mem. 5-6). This argument ignores Clay‘s allegations that Jones was acting improperly in his own interest, not that of Howard‘s. (See Compl. ¶¶ 40-41; Pl. Jones Opp‘n at 13-14). Since the question of individual liability is particularly fact-specific, the Court will defer ruling on the merits of Jones’ motion until Plaintiff has filed her amended complaint.
c. Jones’ Individual Liability Under Count III
Title VII and DCHRA claims are analyzed under the same legal standard. Slate v. Public Defender Service for D.C., 31 F. Supp. 3d 277, 290 n. 3 (D.D.C. 2014); Carpenter v. Fed. Nat‘l Mortg. Ass‘n, 165 F.3d 69, 72 (D.C. Cir. 1999). Because the Court reserves judgment as to the viability of a Title VII claim against Howard pending amendment of the complaint, it will do the same as to the DCHRA claim. However, Count III as pled against Jones must be dismissed with prejudice as time-barred.
A DCHRA claim must be filed with the D.C. Office of Human Rights or any court of competent jurisdiction within one year of the alleged conduct.
Plaintiff relies on Evans v. Sheraton Park Hotel, 503 F.2d 177, 183 (D.C. Cir. 1974) in urging the Court to view this procedural defect with leniency. The Court there reasoned that
to expect a complainant at the administrative stage, usually without aid of counsel, to foresee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended.
Id. (emphasis added). Unlike the plaintiff in Evans, Clay was represented by counsel in connection with her EEOC charges. (Jones Mem. Ex. A).
The D.C. Circuit has since clarified that although leniency cannot be used “to read out of the statute the administrative procedures with which a prospective plaintiff must comply” there may be circumstances under which “an EEOC charge and right to sue notice against one party might provide notice to another related party sufficient to satisfy the plaintiff‘s duty to comply with the legislatively mandated administrative prerequisites to suit.” Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1434 (D.C. Cir. 1988). In this District, the general rule “is that individuals not named in the EEOC charge may not be sued in a subsequent civil action unless they have been given actual notice of the EEOC proceeding or have an identity of interest
Here, Plaintiff‘s EEOC charge form identified a single “Employer” who discriminated against her, even though the form invites complainants to identify “more than one” if necessary. (Jones Mem. Ex. A). Plaintiff nonetheless asserts that referencing Jones by name in her EEOC charge gave him “actual notice of the charges.” (Pl. Jones Opp‘n 16) (emphasis in original). But Plaintiff has not alleged any facts to plausibly suggest Jones had notice of her EEOC charge, and the argument that simply using Jones’ name in the EEOC charge sufficed was recently rejected by the Court in Frett v. Howard Univ., 24 F. Supp. 3d 76, 84 (D.D.C. 2014) (plaintiff who named Howard as respondent and referred extensively to Jones in the body of the EEOC charge did not toll the statute of limitations against Jones). Indeed, since the parties agree that Jones was no longer an employee or officer of Howard at the time Plaintiff filed her EEOC charges, the inference that Jones had actual notice of, and an opportunity to participate in, the EEOC process is particularly weak. Frett, 24 F. Supp. 3d at 84; Anyaibe, 1995 WL 322452, at *3-4. Accordingly, the DCHRA claim against him must be dismissed as untimely.
d. Count IV—Violation of the Equal Pay Act
The Federal Equal Pay Act (“EPA“) prohibits an employer from discriminating “between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”
The D.C. Circuit has not addressed whether relying on a non-immediate successor as a comparator is proper for purposes of the Equal Pay Act. See Thomas v. Vilsack, 718 F. Supp. 2d 106, 118 (D.D.C. 2010) (assuming without deciding that comparison to a successor is proper). Plaintiff relies on Eighth Circuit precedent in Broadus v. O.K. Indus., Inc., 226 F.3d 937 (8th Cir. 2000). In that case, the plaintiff was the only person employed in the position, and her immediate successor had additional responsibilities. Moreover, after plaintiff left the company, the department was restructured, and no one
e. Count V—Retaliation in Violation of Title VII
To sustain a claim for retaliation in violation of Title VII,
As with Counts II and III, Plaintiff‘s retaliation claim is so temporally intertwined with the other allegations in her Complaint that, as pleaded, her claims of gender discrimination, retaliation, and wrongful discharge cannot be parsed. Accordingly, the Court will reserve judgment on the merits of Howard‘s motion to dismiss Count V pending submission of an amended complaint.
IV. CONCLUSION
Jones’ motion to dismiss the Complaint is granted as to Count III of the Complaint. The remainder of Defendants’ motions to dismiss are denied without prejudice, subject to renewal upon the filing of an amended complaint and supplemental briefing.
Plaintiff‘s motion for leave to amend her complaint is granted. Plaintiff shall file an amended complaint by March 24, 2015. Plaintiff‘s filing shall include a redline comparison of the amended complaint against the current complaint. Defendants shall file motions to dismiss the amended complaint by April 7, 2015. Plaintiff shall oppose the motions by April 21, 2015 and Defendants may file reply briefs by April 28, 2015. In considering renewed motions to dismiss the amended complaint, the Court will incorporate and consider the filings related to the previously-filed motions to dismiss; accordingly the supplemental briefing need only address new or changed allegations.
A corresponding order will issue separately.
TANYA S. CHUTKAN
United States District Judge