Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ARTHUR RICHARD JOYCE,
Plaintiff,
v. Civil Action No. 12-1837 (JEB) OFFICE OF THE ARCHITECT OF THE
CAPITOL,
Defendant. MEMORANDUM OPINION
Upon returning from a week of medical leave, Plaintiff Frank Joyce was told that his work schedule with the Architect of the Capitol would be changing for the first time in twelve years. His new shift, moreover, would leave him unable to continue as his grandchildren’s primary caregiver. Instead of accepting the new schedule, Joyce resigned. In this suit under the Congressional Accountability Act, Joyce asserts that his shift change (and attendant forced resignation) was discriminatory. Specifically, he claims that the change was motivated by retaliation for past protected activity, age discrimination, and retaliation for taking protected medical leave, and he further alleges that the change illegally interfered with his right to take medical leave. The AOC now moves to dismiss. Concluding that the allegations supporting the first retaliation count fall short, but that those supporting the other claims clear the pleading bar, the Court will grant the AOC’s Motion in part and deny it in part.
I. Background
Because the Motion at issue is a motion to dismiss, the Court draws the facts from the Amended Complaint, assuming them to be true at this stage.
A. Factual Background
The Architect of the Capitol is a legislative-branch office that repairs and maintains the U.S. Capitol and its associated facilities. See 2 U.S.C. §§ 1811-1827. Frank Joyce worked at the AOC for 39 years. See Am. Compl., ¶ 14. Since 2000, Joyce had been the Facilities Supervisor for the Labor and Custodial Branch of the Client Services Division at the AOC Senate Office Buildings, overseeing 250 employees. See id., ¶¶ 15, 18. For his entire tenure as Facilities Supervisor, Joyce straddled the night and day shifts, working from 4:00 a.m. to 12:30 p.m. (or, when working a flexible schedule, 1:30 p.m.). See id., ¶ 17. He came to rely on this schedule after his daughter gave birth to twins in 2010. See id., ¶¶ 24-25. In the afternoon, while his daughter worked, Joyce would act as primary caregiver for his grandchildren. See id., ¶¶ 7, 25, 88.
Six years into his time as Facilities Supervisor, Joyce began to clash with management over his requests for family and medical leave. In 2006 and 2009, for example, Joyce needed leave to care for his wife after her leg surgery (2006) and dizzy spells requiring her hospitalization (2009). See id., ¶¶ 21, 23. In 2010, Joyce again required leave, this time to care for his daughter during her difficult pregnancy. See id., ¶ 24. Management repeatedly denied Joyce’s requests for leave outright or – despite a process allowing employees to “self-certify” leave without a doctor’s note, see id., ¶ 33 – refused to give him more than 24 hours of leave without documentation. See generally id., ¶¶ 27-47, 52.
These squabbles over leave eventually spilled over to other personnel matters. In 2011, Joyce’s request for a flexible work schedule was denied because, “‘[b]ased on [his] leave record, [he] ha[d] not established a pattern of regular work attendance.’” Id., ¶¶ 49, 51. When Joyce confronted management, his supervisor’s supervisor admitted that the denial “might” be *3 attributable to a “mistaken belief that Joyce was using his leave in preparation for retirement.” Id., ¶¶ 54-55. (It appears Joyce was eventually allowed a flexible schedule. See id., ¶ 17.) Joyce also details other grievances about his work environment, but as they are untethered from discrimination, see id., ¶¶ 56-77, the Court need not recount them.
Problems came to a head when Joyce injured his back in March 2012. His doctor said not to return to work until the injury improved. See id., ¶ 80. Joyce therefore took sick leave from March 5 to March 12, informing management beforehand and calling his supervisor on March 5 to confirm his leave. See id., ¶¶ 78-79. When Joyce returned to work on March 13, his supervisor handed him a memo (dated March 5) assigning Joyce a new schedule: beginning March 19, Joyce would work the day shift from 8:00 a.m. to 4:30 p.m. instead of his usual shift from 4:00 a.m. to 12:30 p.m. See id., ¶¶ 81, 84, 86. As his supervisor knew, the new schedule would leave Joyce unable to care for his grandchildren. See id., ¶¶ 87-88. AOC management claimed that the change was made “because the day shift supervisor was underperforming and AOC wanted Joyce to infuse his leadership on the low performing supervisor.” Id., ¶ 92. Joyce, however, believes it was motivated by discrimination. See id., ¶ 94. Despite Joyce’s protests, his supervisor refused to revisit the decision. See id., ¶ 89. Joyce then submitted his resignation. See id., ¶¶ 95-96.
Though the resignation would not take effect until April 30, Joyce was at home for much of his remaining time on account of his back injury. See id., ¶¶ 105, 111. Management had told Joyce that he could self-certify some of this sick leave, but his repeated attempts to do so were denied. See id., ¶¶ 106-10. “To date, Joyce is not sure if he has been paid for all his leave from March 13, 2012 through April 30, 2012.” Id., ¶ 111.
In the days and weeks after March 13, Joyce played a role in at least four discrimination cases against the AOC. Even before his resignation, Joyce had been asked by both the AOC and by AOC employees to serve as a witness in other cases. See id., ¶ 98. On April 20, AOC attorneys spoke with Joyce about three discrimination cases involving other employees. See id., ¶ 99. The AOC eventually subpoenaed Joyce in one lawsuit, and he testified on June 15. See id., ¶ 100. He gave a declaration in support of another employee on June 14. See id., ¶ 104. Joyce also pursued his own case, making a verbal complaint with the AOC Office of Compliance on the day of his resignation, then filing a written complaint on April 6. See id., ¶¶ 96-97. To exhaust administrative remedies, he participated in counseling and mediation with the AOC in July and October. See id., ¶¶ 122, 129, 145, 155.
B. Procedural Background
Joyce brought this suit against the AOC on November 13, 2012, asserting five counts under the Congressional Accountability Act. He amended his Complaint on January 4, 2013, dropping the count for race discrimination. The AOC now moves to dismiss.
The AOC also moves, in the alternative, for summary judgment. Because of the parties’
confusion about that aspect of the Motion, however, the Court does not reach the summary-
judgment issues. The AOC moved for summary judgment in part because of purported defects
in claims that Joyce did not actually bring in his Amended Complaint (such as for racial
discrimination and hostile work environment) and in part because Joyce had insufficient
evidence to rebut the AOC’s nondiscriminatory explanations for its actions. See Mot. at 22
(citing Brady v. Office of Sergeant at Arms,
In this case, Joyce believed that the AOC agreed that no affidavit was necessary, and thus he never filed one. See Opp. at 1 n.1. The confusion stems from an e-mail exchange between the parties’ counsel. After ascertaining that Joyce was not suing for a hostile work environment or racial discrimination, the AOC’s attorney agreed that Joyce need not address those arguments in his Opposition. See Opp., Exh. 1 (E-mail Between Counsel (May 28, 2013)). Joyce’s attorney replied that he would tell the Court that “there is now no need to oppose the motion for summary judgment or to file a Rule 56(d) affidavit with this understanding between us,” and the AOC’s attorney responded, “Thank you.” Id. (emphasis added). Obviously, counsel were talking past each other. In light of this confusion and the fact that the Court would have granted a Rule 56(d) request, the Court will consider only the AOC’s Motion to Dismiss. In future arrangements, however, the Court trusts that counsel will be more careful to ensure that they are on the same page.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must
grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow
v. United Air Lines, Inc.,
A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the
pleadings, see Fed. R. Civ. P. 12(d), which includes statements adopted by reference as well as
copies of written instruments joined as exhibits. See Fed. R. Civ. P. 10(c). Where the Court
must consider “matters outside the pleadings” to reach its conclusion, a motion to dismiss “must
be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Yates v.
District of Columbia,
III. Analysis
Joyce brings four counts under the Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq. , alleging retaliation (Count I), age discrimination (Count II), retaliation for taking family and medical leave (Count IV), and interference with family and medical leave (Count V). (A misnumbering of counts resulted in no Count III in the Amended Complaint.) After giving an overview of the law that frames each count, the Court will consider the AOC’s primary *7 objection: that Joyce never suffered an adverse employment action. The Court will then deal with the hodgepodge of claim-specific challenges that the AOC raises.
A. Statutory Framework
Most federal antidiscrimination statutes exempt Congress from their coverage. See, e.g.,
42 U.S.C. § 2000e-16(a) (extending Title VII of Civil Rights Act of 1964 to federal judicial and
executive employees, but not legislative ones). Instead, legislative-branch employees, including
AOC employees, must bring discrimination claims under the Congressional Accountability Act.
The Act has its own elaborate set of procedural requirements. For example, a covered employee
claiming discrimination must seek counseling within 180 days, then engage in at least 30 days of
mediation with her employing office. See 2 U.S.C. §§ 1402-1403. Only after completing those
alternative-dispute-resolution processes may she bring suit. See 2 U.S.C. § 1408(a); see also
Blackmon-Malloy v. U.S. Capitol Police Bd.,
In substance, however, the Congressional Accountability Act expressly incorporates
protections and remedies from the generally applicable federal antidiscrimination statutes. See 2
U.S.C. § 1302. Claims relating to age discrimination and to family and medical leave thus track
their federal analogs. See 2 U.S.C. § 1311(a)(2) (incorporating parts of Age Discrimination in
Employment Act of 1967); 2 U.S.C. § 1312 (incorporating parts of Family and Medical Leave
Act of 1993). Though retaliation under the CAA has no explicit tie to other statutes, see 2
U.S.C. § 1317, both parties agree – following D.C. Circuit
dicta
and district court holdings – that
the framework for Title VII retaliation applies. See Mot. at 23-24; Opp. at 12-13; see also Fields
v. Office of Eddie Bernice Johnson,
While the requirements for proving a
prima facie
case of discrimination should not be
made into a heightened pleading standard, see Swierkiewicz v. Sorema N.A.,
Count I alleges retaliation for engaging in protected activity – specifically, that the AOC
denied Joyce sick leave and self-certification because he participated in and brought
discrimination cases against the AOC. See Am. Compl., ¶¶ 112-22. “To prove unlawful
retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by [the statute];
(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,
Count II alleges age discrimination. According to Joyce, the AOC changed his schedule
– forcing him to resign – because they assumed he would retire soon. See Am. Compl., ¶¶ 123-
29. To establish a
prima facie
case under the ADEA, a plaintiff must show that “(1) she is a
member of a protected class” (
i.e.
, at least 40 years of age); “(2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to an inference of discrimination.”
Barnette v. Chertoff,
Count IV alleges retaliation for taking family and medical leave. Joyce claims that the
AOC switched his shift (and thus forced him to resign) in retaliation for protected medical leave
he took immediately before the switch. See Am. Compl., ¶¶ 130-45. Retaliation occurs under
the FMLA when an employer “discharge[s] or in any other manner discriminate[s] against any
*9
individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2);
see also Shaffer v. Am. Med. Ass’n,
Last, Count V alleges interference with family and medical leave. The AOC interfered,
according to the Amended Complaint, by refusing to restore Joyce to an equivalent job when he
returned from medical leave. See Am. Compl., ¶¶ 146-55. The FMLA makes it “unlawful for
any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). One such protected “right” is,
upon returning from protected leave, “(A) to be restored by the employer to the position of
employment held by the employee when the leave commenced; or (B) to be restored to an
equivalent position with equivalent employment benefits, pay, and other terms and conditions of
employment.” 29 U.S.C. § 2614(a)(1). In other circuits, “[t]o prevail on an FMLA-interference
theory, the plaintiff employee must prove that: (1) she was eligible for the FMLA’s protections;
(2) her employer was covered by the FMLA; (3) she was entitled to take leave under the FMLA;
(4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her
FMLA benefits to which she was entitled.” Pagel v. TIN Inc.,
With the law now laid out, the Court can proceed to the AOC’s challenges. B. Adverse Action
Counts I, II, and IV demand adverse actions. An adverse action in a non-retaliation claim
like Count II (age discrimination) requires a “tangible employment action,” meaning “a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth,
Joyce sees three “adverse actions” here: denials of his requests for sick leave and his attempts to self-certify (for Count I); his shift change (for Counts II and IV); and his constructive discharge (for Counts II and IV as well). See Am. Compl., ¶¶ 120, 127, 140-42. Only the constructive discharge survives as a possible adverse action here, however.
1.
Sick Leave and Self-Certification
Denial of self-certification for sick leave is too trivial to support a retaliation claim.
Courts in this District have rejected arguments that similar procedural or administrative
*11
requirements placed on leave requests constitute adverse actions. See Douglas-Slade v. LaHood,
On the other hand, a denial of sick leave itself would probably qualify because it is likely
to dissuade a reasonable worker from making a charge of discrimination. See Diggs v. Potter,
2.
Shift Change
The shift-change allegations run into a different problem. Even if a shift change may
constitute an adverse action, Joyce’s shift never actually changed. Instead, the Amended
Complaint indicates that he rejected the new schedule and resigned. See Am. Compl., ¶¶ 95-96.
As he never worked on the new shift, he cannot complain that this constitutes an adverse action.
See Baloch v. Kempthorne,
The Court need not dwell on whether such a rule might unfairly penalize Plaintiff or encourage other employees to stay in a new shift for a day before resigning in order to preserve an adverse-action claim. This is because Plaintiff still has his constructive-discharge claim, which is based entirely on the shift change. If he can prove the shift change constituted a constructive discharge, then he will stand in the same shoes as he would have had he worked briefly in the new shift before quitting.
3.
Constructive Discharge
Joyce’s resignation, therefore, remains as the sole basis for Plaintiff’s Counts II and IV.
If he can prove that his quitting was not voluntary but was instead a “constructive discharge,”
then the resignation constitutes an adverse employment action attributable to the AOC: “Under
the constructive discharge doctrine, an employee’s reasonable decision to resign because of
unendurable working conditions is assimilated to a formal discharge for remedial purposes. The
inquiry is objective: Did working conditions become so intolerable that a reasonable person in
*13
the employee’s position would have felt compelled to resign?” Pa. State Police v. Suders, 542
U.S. 129, 141 (2004) (citation omitted); see also Aliotta v. Bair,
“[T]he requirement that conditions be ‘intolerable’ to support a constructive discharge
will not easily be met.” Simpson v. Fed. Mine Safety & Health Review Comm’n,
Before applying the constructive-discharge test to the facts here, a few points about the
test bear emphasis. First, despite stray references to the employer’s “deliberately” driving the
employee to resign, see Clark,
Second, the test takes into account all of the objective circumstances of the situation, including circumstances outside the office – such as being a primary caregiver for grandchildren at a particular time of day. The Supreme Court has explained why in applying an analogous “reasonable worker” test for retaliation:
Context matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. Cf., e.g. , Washington [v. Ill. Dep’t of Revenue,420 F.3d 658 , 662 (7th Cir. 2005)] (finding flex-time schedule critical to employee with disabled child). . . .
Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington, supra , at 661.
Id. at 69 (citation and internal quotation marks omitted).
Third and finally, the “intolerableness of working conditions is very much a function of
the reasonable expectations of the employee.” Hopkins,
In claiming a constructive discharge in this case, Joyce relies primarily – but not exclusively – on his anticipated shift change. Before deciding whether that shift change can support a constructive discharge, the Court must deal with two threshold matters.
First, the AOC claims that the other events Joyce relies on, dating back to 2006, are
barred by the statute of limitations. See 2 U.S.C. § 1402(a) (employee must request counseling
within 180 days of “alleged violation”). Joyce admits that a stand-alone suit about those
employment actions would be “time-barred.” See Opp. at 10. He correctly notes, however, that
the events provide context for deciding if the working conditions were intolerable. Whether a
reasonable employee would resign depends on all of the circumstances, including the employee’s
history with the employer – indeed, it often takes repeated conduct to drive an employee to quit.
See, e.g., Clark,
Second, the AOC argues that Joyce has forfeited his accusation of constructive discharge by failing to sufficiently raise it in his Complaint. See Reply at 2-3, 10, 19. That argument is baseless. At least five times, the Amended Complaint alleges that he was constructively terminated. See Am. Compl., ¶¶ 1, 7, 13 (title), 78 (title), 98. Perhaps the AOC meant to say that Joyce has not sufficiently pled a common-law claim for constructive discharge. Indeed he has not, but this is because Joyce sues for discrimination, not common-law constructive discharge.
Moving now to the merits, the Court begins with D.C. Circuit precedent that a shift
change that materially alters the conditions or privileges of employment may be an adverse
action. See Freedman v. MCI Telecomms. Corp.,
That inconsistency reflects the tension underlying judicial review of schedule changes.
On the one hand, an employer that must fill multiple shifts each day “would be in a most
precarious position” if a routine scheduling decision could justify a resignation. Grube, 257 F.3d
at 728. On the other, an employee may build her life around working at a particular time. Many
lawyers might quit, one imagines, if suddenly made to work the night shift since “conditions that
are conventional for a stevedore may be intolerable for a lawyer, and perhaps vice versa.”
Taylor v. FDIC,
Bearing all this in mind, the Court concludes that Joyce has alleged enough to make a
colorable argument that his resignation here was a constructive discharge. In close cases, the
*17
Court must recall that “[w]hether conditions are so intolerable that a reasonable person would
feel compelled to resign is a question for the trier of fact.” Simpson,
No allegations here, moreover, suggest that Joyce should have anticipated the risk of
such a change. Cf. Poland,
This ruling notwithstanding, a variety of facts could come to light during discovery to
suggest that Joyce’s resignation was unreasonable. For example, perhaps the AOC routinely
moves around the schedules of facilities supervisors, or Joyce’s contract warned of such a
possibility. Or maybe Joyce’s role as primary caregiver is overblown; if he has other options for
care for his grandchildren, resignation may have been an unreasonable response dictated by
subjective preferences instead of objective circumstances. See Washington,
C. Claim-Specific Objections
Beyond its challenge to the existence of an adverse action, the AOC raises at least one challenge specific to each remaining count. As Count I has been dismissed, the Court will address Defendant’s arguments as to Counts II, IV, and V.
1. Age Discrimination (Count II) On the age-discrimination claim, the AOC points out that Joyce never alleged that he falls within the class protected by the ADEA – namely, that he is at least 40 years old. See 29 U.S.C. § 631(a). His Amended Complaint does allege, however, that he “began his employment with the AOC in 1973.” Am. Compl., ¶ 13. Unless the AOC uses toddler labor, Joyce is older than 40. Drawing all reasonable inferences in Joyce’s favor, the Court can safely say he is protected by the ADEA.
2. FMLA (Counts IV and V) Before raising grievances specific to each FMLA count, the AOC argues generally that Joyce cannot bring any FMLA claim because he failed to properly request FMLA leave. The parties go back and forth on how specific a request must be for the FMLA to kick in, bickering over whether Joyce “provide[d] at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c) (foreseeable leave); see also id. § 825.303 (notice for unforeseeable leave). Fortunately, the Court need not wade into the factual details. The Amended Complaint repeatedly alleges that Joyce took leave under the FMLA, see Am. Compl., ¶¶ 6, 136, 139-40, 153, explaining that he told management he would be taking leave, then *19 confirmed that leave with his supervisor. See id., ¶¶ 78-79. At the pleading stage, Joyce need not allege the minutiae of what he said to whom and when. See Fed. R. Civ. P. 8(a)(2) (pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”).
The AOC also argues that Joyce’s injury was ineligible for FMLA leave. Treating his allegations as true, however, Joyce’s back injury qualified as a “serious health condition” that left him unable to perform the functions of his position, see 29 U.S.C. § 2612(a)(1)(D) – indeed, his doctor told him to stay home until it improved. See Am. Compl., ¶ 80. Should discovery reveal that Joyce’s injury was trifling or his notice of leave fell short, the AOC can renew its arguments in a motion for summary judgment.
On FMLA retaliation (Count IV), the AOC argues that Joyce cannot cry retaliation when
he never “oppose[ed] any practice made unlawful” by the FMLA. See 29 U.S.C. § 2615(a)(2)
(FMLA retaliation: “It shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by this
subchapter.”). All Joyce did was take protected leave. That textual argument appears
compelling. “Opposing” an unlawful practice normally means objecting when the employer
breaks the law, not exercising the underlying right. Courts nonetheless often count penalizing
protected leave as FMLA retaliation. See, e.g., Breeden v. Novartis Pharm. Corp.,
On FMLA interference (Count V), the AOC challenges both FMLA “right[s]” that Joyce claims were “interfere[d]” with. See 29 U.S.C. § 2615(a)(1) (FMLA interference: “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”). First, although not mentioned in his allegations relating to Count V, see Am. Compl., ¶¶ 146-55, Joyce argues that one basis for finding FMLA interference is the AOC’s denial of FMLA leave in early 2011. See Opp. at 18. Such a claim is time barred. For this Court to have jurisdiction, an employee must request counseling “not later than 180 days after the date of the alleged violation.” 2 U.S.C. § 1402(a); see id. § 1408(a). But Joyce mentions no counseling until after March 2012. See Am. Compl., ¶ 155. If he wanted to challenge the 2011 denial of leave, he should have acted sooner.
Second, Joyce alleges that the AOC interfered when it failed to place him in an equivalent position when he returned from FMLA-protected leave. See Am. Compl., ¶ 153. The AOC argues that, in the same way an unfulfilled threat of a shift change cannot constitute an adverse action, see Section III.B.2, supra , the fact that Joyce rejected the new hours forecloses a charge of FMLA interference. That argument, however, ignores the statutory “right” that the AOC allegedly “interfered with” here:
[A]ny eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave –
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a)(1). Unlike the negative right given by most discrimination statutes (
i.e.
,
against adverse actions), Section 2614 bestows a positive right to return to a job with “equivalent
. . . terms and conditions of employment” – a right Joyce claims was violated here by the new
hours. So it is irrelevant that Joyce quit instead of accepting the shift change. Presumably the
AOC could avoid liability by showing that Joyce’s shift would have changed regardless of
whether he took leave. See Goelzer v. Sheboygan County,
IV. Conclusion
For the aforementioned reasons, the Court will grant in part and deny in part Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment. Count I alone will be dismissed. A separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 5, 2013