Leonard ROSS, Plaintiff, v. UNITED STATES CAPITOL POLICE, Defendant.
Civil No. 14-cv-1400 (KBJ)
United States District Court, District of Columbia.
Signed June 30, 2016
195 F. Supp. 3d 180
KETANJI BROWN JACKSON, United States District Judge
Andrea McBarnette, U.S. Attorney’s Office, Frederick Michael Herrera, Rafique O. Anderson, United States Capitol Police, Washington, DC, for Defendant.
MEMORANDUM OPINION
KETANJI BROWN JACKSON, United States District Judge
In this employment-discrimination lawsuit, Plaintiff Leonard Ross asserts that Defendant United States Capitol Police (“USCP” or “Capitol Police”)—his prior employer—forced him to retire and otherwise subjected him to unfavorable treatment due to his race and in retaliation for
Before this Court at present is USCP’s motion to dismiss Ross’s complaint, or in the alternative, motion for summary judgment. (See Def.’s Mot. to Dismiss, or, in the Alternative, Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 11, 1-2); Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 11, 3-33). For the reasons explained below, this Court will decline USCP’s invitation to treat its pending motion as one for summary judgment at this early stage of the case. With respect to the merits of the motion, this Court concludes that certain of Ross’s claims—specifically, his claims that USCP improperly placed him on administrative leave and improperly refused to pay his accrued leave upon his retirement—must be dismissed under
Accordingly, USCP’s motion will be GRANTED IN PART and DENIED IN PART, and the claims over which the Court lacks jurisdiction will be DISMISSED. A separate order consistent with this Memorandum Opinion will follow.
I. BACKGROUND
A. Relevant Facts
The following recitation is based on the allegations in Ross’s complaint, as well as “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies[.]” Page v. Mancuso, 999 F. Supp. 2d 269, 275 (D.D.C. 2013) (internal quotation marks and citation omitted).
Leonard Ross was employed as a Capitol Police officer from 1984 to 2013. (See Compl., ECF No. 1, at 2, ¶¶ 7-8.)1 During this period of time, Ross, who is an African-American man, pursued litigation against USCP on two separate occasions: first, in 2001, he was a proposed class member in a class action that a group of
The pertinent events for the purpose of the instant action commenced in June and July of 2012. On June 30, 2012, Ross had a domestic dispute with his ex-wife. (See Compl. at 5, ¶ 16.) According to the complaint, USCP placed Ross on administrative leave on July 3, 2012, after he self-reported that incident, despite his requests to be placed on “light duty status” in lieu of administrative leave. (Id. at 6, ¶¶ 21-22.) Then, on July 13, 2012, a protective order (dated July 9) that was rooted in the domestic dispute was served on Ross, and, among other things, the order prohibited him from possessing a firearm for an en- tire year—until July 9, 2013. (See id. at 5, ¶ 16.)
Nearly one year later, on June 27, 2013, USCP’s Human Resources division (“HR”) sent Ross a memo notifying him that, “[d]ue to [his] inability to carry a firearm[,]” HR was recommending that his employment be “terminated for [his] failure to meet the conditions of employment.” (Termination Recommendation, Ex. 10 to Pl.’s Opp’n to Def.’s Mot., ECF No. 12-14, at 2; see also Compl. at 9-10, ¶ 29 (discussing termination recommendation letter)).3 The memo further explained that Ross had the option of retiring “in lieu of involuntary separation prior to the effective date of the termination action[,]” and that he would “remain in an administrative leave status pending final approval of [his] termination of employment.” (Termination Recommendation at 2.) The memo also stated that Ross could appeal the Human Resources division’s termination recommendation to Police Chief Kim C. Dine. (Id.)
Ross elected to appeal, and on August 15, 2013, the Chief determined that there was no “basis in the record to concur with Ross’s argument[]” that his employment should not be terminated. (Letter Regarding Appeal of Recommendation for Termination of Employment (“Appeal Decision Letter”), Ex. 14 to Pl.’s Opp’n to Def.’s Mot., ECF No. 12-16, at 2; see also Compl. at 10-11, ¶ 34 (discussing and quoting from the Chief’s decision letter).) In the letter, the Chief emphasized that the proposed termination stemmed from Ross’s inability to perform his duties because he could not carry a firearm, and with respect to the
After receiving Chief Dine’s letter, Ross visited Human Resources to discuss next steps. In the complaint, Ross avers that an HR employee told him that he would leave in good standing and would retain certain benefits—such as a “Retired Badge” and “Retirement Credentials”—if he opted to retire. (Compl. at 11-12, ¶ 38.) Ross alleges that he elected to retire, rather than waiting to be terminated, based on that representation, and that, when he did so, he was permitted to retain the retirement credentials and badge that are associated with retiring in good standing. (See id.)
However, on September 13, 2013, HR sent Ross a letter informing him that, “[g]iven your retirement in lieu of termination, as sustained by the Capitol Police Board, you did not retire in good standing[,]” and therefore, “the Retirement Credentials were issued to you in error and need to be returned.” (Letter from Jacqueline J. Whitaker to Leonard Ross (“Credential Return Letter”), Ex. 19 to Pl.’s Opp’n to Def.’s Mot., ECF 12-21, at 2; see also Compl. at 12, ¶ 39 (referencing and discussing the letter requesting the return of his credentials).) The letter also stated that Ross’s accrued annual leave payment would not be sent to him until he had returned the badge and credentials. (See Credential Return Letter at 2; see also Compl. at 12, ¶¶ 39-40.) According to the complaint, Ross refused to return the items, and as a result, he did not receive payment for more than 250 hours of accrued annual leave—an amount he says totals more than $12,600. (See Compl. at 12, ¶ 40.)
B. Procedural History
On August 15, 2014, Ross filed the instant two-count complaint, claiming race discrimination and retaliation in violation of the CAA. In the complaint, four discrete acts of USCP are alleged as the basis for the discrimination and retaliation contentions, and all four acts are purportedly applicable to both claims: (1) the “deci[sion] to terminate [Ross] based on his inability to carry a firearm due to a Civil Protective Order and thereby force his involuntary retirement”; (2) the “fail[ure] to conduct and complete a timely and appropriate investigation into” the conduct leading to the protective order, which allegedly would have cleared him; (3) the “fail[ure] to grant [Ross’s] request to be assigned light duty in lieu of administrative leave”; and (4) the finding that he did not retire in good standing and consequent refusal to pay his annual-leave lump sum. (Id. at 13, ¶¶ 4-7; id. at 14, ¶¶ 12-15.)
On January 16, 2015, USCP filed a motion to dismiss the complaint, or in the alternative, for summary judgment, arguing that (1) Ross’s failure to satisfy certain
Ross has opposed all of these dismissal arguments, but has also specifically disclaimed any desire to rely on his failure-to-investigate assertions as independent grounds for relief. (See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 12, at 13-14.) With respect to USCP’s request for summary judgment, Ross has also asserted that, due to the many “factual conflicts” that will “require credibility determinations” in this case, “Defendant is not entitled to summary judgment and discovery in this matter should proceed.” (Id. at 23.)
USCP’s motion is now ripe for decision. (See Def.’s Reply, ECF No. 13; see also Pl.’s Sur-Reply in Opp’n to Def.’s Mot., ECF No. 16.)
II. LEGAL STANDARDS
A. Federal Rules Of Civil Procedure 12(b)(1) And 12(b)(6)
A defendant may request that a complaint be dismissed for lack of subject-matter jurisdiction. See
A motion under
Unlike
B. Motions Styled As “Motions To Dismiss, Or In The Alternative, For Summary Judgment” In Employment-Discrimination Cases
In the instant case, Defendant USCP has filed a motion to dismiss under
First and foremost, it is well established that “summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery.’” Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)). This Court has an independent obligation to ensure that the requested acceleration to summary judgment is fair to all parties, see Page, 999 F. Supp. 2d at 276, and indeed, having reasonable access to discovery seems inherent in the standards that courts apply when assessing the adequacy of arguments in opposition to a summary-judgment motion. That is, even though the movant (typically, the defendant) bears the burden of establishing that there are no genuine issues of material fact for trial in order to be granted summary judgment, the non-movant (usually, the plaintiff) must “rely on evidence” to
Second, and perhaps even more important, this Court considers it especially problematic to permit acceleration to summary judgment at the pre-discovery stage in employment-discrimination cases, because plaintiffs with such claims ordinarily must marshal the kinds of evidence that one usually can only gather during the discovery phase in order to carry their burden of establishing that the legitimate reasons the defendant has proffered are, in fact, pretextual, and that the real reason for the adverse employment action is a prohibited one. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008) (examining application of the Supreme Court’s McDonnell Douglas burden-shifting framework).4 It is well established that the consequence of the defendant’s having provided a legitimate basis for its actions is that “‘the McDonnell Douglas framework—with its presumptions and burdens—disappears[,]’ leaving only the ultimate question of ‘discrimination vel non[.]’” Rochon, 139 F. Supp. 3d at 403 (alterations in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)). This means that, once a non-discriminatory basis for the adverse employment action has been provided, only one “central question” remains for summary-judgment purposes—whether or not the plaintiff has “produced sufficient evidence for a reason- able
What is more, in this Court’s view, it is entirely consistent with the Federal Rules and existing case law to reason that, when an employment-discrimination complaint has been properly pled (i.e., if the complaint survives the scrutiny visited upon it by the defendant’s
Accordingly, it is this Court’s ordinary practice to deny a defendant’s request that the Court consider evidence regarding the employer’s reasons for undertaking the challenged employment action when the defendant submits such evidence along with a pre-discovery motion in cases involving claims of employment discrimination. And because it sees no reason to depart from this practice here, the Court will decline to treat USCP’s motion as one for summary judgment.
C. The Congressional Accountability Act
Finally, it is important to appreciate the substantive legal standards that govern the claims that have been brought in the instant case. As mentioned, Ross’s discrimination and retaliation claims arise under the Congressional Accountability Act, which makes
Significantly for present purposes, while the CAA largely mirrors
This all means that a federal district court has subject-matter jurisdiction over a CAA discrimination or retaliation claim only if the plaintiff-employee has completed counseling and mediation at the administrative level with respect to the claim asserted, and even then, only if that plaintiff commences an action in district court within the time frame prescribed by statute. And the plaintiff must run this gantlet of requirements for each of the “discrete acts [he] contends amounted to discrimination”; if he fails to do so, the claims “arising from such conduct w[ill] fall outside [the] Court’s subject-matter jurisdiction.” Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 68 (D.D.C. 2011); see also Halcomb v. Office of Senate Sergeant-at-Arms of U.S. Senate, 563 F. Supp. 2d 228, 237 (D.D.C. 2008) (explaining that the plaintiff could not maintain claims based on “allegations as to acts that occurred ... outside of the [CAA’s] 180-day statutory period” for requesting counseling), aff’d, 368 Fed.Appx. 150 (D.C. Cir. 2010); cf. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (observing, in the
One notable procedural complexity that can occur within this framework involves the treatment of evidence or allegations regarding a discrete discriminatory act that, due to the plaintiff’s failure to satisfy the CAA’s statutory exhaustion requirements, cannot itself be a basis upon which to bring the plaintiff’s employment-discrimination claim. In this situation, courts have concluded that the fact that a discrete act of alleged discrimination is not justiciable does not render that act irrelevant (as an evidentiary matter) with respect to prosecution of other, timely claims. To the contrary, evidence and allegations with respect to untimely acts of discrimination or retaliation may well be considered “as background evidence in support of a timely claim” about another alleged occurrence. Morgan, 536 U.S. at 113; see, e.g., Halcomb, 563 F. Supp. 2d at 238 (citing Morgan, and explaining that, while the plaintiff had not satisfied the CAA’s jurisdictional prerequisites with respect to certain events and thus could not maintain claims based on those events, she could still use those events “as evidentiary background support for her actionable claims”).
III. ANALYSIS
Of the three allegedly discriminatory and retaliatory actions that Ross claims USCP took against him and for which he intends to hold USCP liable—(1) placing him on administrative leave, (2) refusing to return his accrued leave, and (3) forcing him to retire by threatening to fire him for unjustifiable reasons—only the last can form the basis of a claim that can be permitted to proceed past the
A. This Court Lacks Jurisdiction Over Ross’s Claims That USCP Placed Him On Administrative Leave And Withheld Accrued Annual Leave Payments With Discriminatory and Retaliatory Intent, But The Court Does Have Jurisdiction Over Ross’s Claims That He Was Forced To Retire Due To Race Discrimination And Retaliation
USCP argues that Ross failed to satisfy the statutory prerequisites to filing a lawsuit with respect to the discrimination and retaliation claims that relate to his administrative-leave placement and the withholding of his accrued leave, and thus, that this Court must dismiss those claims under
1. Ross Propounded Two Counseling Requests, One Mediation Request, And A Civil Complaint, Alleging Various Discrete Acts Of Discrimination And Retaliation
On November 1, 2013, Ross filed a formal request for counseling in which he complained about his placement on administrative leave, and also charged USCP with “constructively discharg[ing]” him by forcing him to retire against his wishes via a threat of termination. (See Collected Ad- ministrative Documents, Ex. 1 to Pl.’s Opp’n, ECF No. 12-3, at 3-4; Notice of Invocation of Mediation, Ex. 6 to Def.’s Mot., ECF No. 11-7, at 2.)5 The associated counseling period ran from November 1, 2013, to December 2, 2013, and Ross received the notification of the end of the counseling period no earlier than December 3, 2013. (See Collected Administrative Documents at 6). Ross requested mediation on December 16, 2013, which was within fifteen days of that notification. (See id. at 8.) The mediation period ended on May 21, 2014 (see Office of Compliance Certification, Ex. 1 to Def.’s Reply, ECF No. 13-1, at 2), after apparently being extended, as the statute permits, see
In the midst of this process, on March 12, 2014, Ross filed a second request for counseling in which he complained about USCP’s failure to pay him accrued leave. (See Formal Request for Counseling, Ex. 2 to Pl.’s Opp’n, ECF No. 12-4, at 2-3.) No documents in the record before this Court indicate when that counseling period ended; nor do any documents reflect that Ross filed any request for mediation associated with this second request.
Ross filed his complaint in this Court on August 15, 2014. (See generally Compl.) The complaint alleges that USCP discriminated and retaliated against him in violation of the CAA in three ways: by placing him on administrative leave rather than light duty status; by refusing to give him accrued leave payments that were owed to him; and by forcing him to retire against his will (as mentioned, the allegations regarding USCP’s purported failure to inves- tigate
2. Ross’s Claims That Relate To Administrative Leave And Accrued Leave Are Untimely
The foregoing facts make the jurisdictional inquiry relatively straightforward. Beginning with the administrative-leave claim, there is no doubt that Ross completed counseling and mediation over his grievance regarding administrative leave and filed a complaint in this Court within 90 days of the close of mediation on the matter, as the statute requires, see
In response to this glaring problem, Ross argues that his administrative-leave claims are timely because he did not realize that Defendant’s choice to place him on administrative leave was motivated by discriminatory or retaliatory intent until July 1, 2013 (nearly a year after the decision was made and executed) and, counting from the date of this belated discovery, his counseling request was made well within the window of opportunity for present purposes. (See Pl.’s Opp’n at 9-12.)6 With respect to Ross’s argument that this Court should credit his “realization” date and, thus, find that he made a timely request for counseling, Ross’s contention fails under well-established law.
In similar CAA cases in this district,
Ross’s attempt to challenge USCP’s accrued-leave decision in this Court fails for similar reasons. To be sure, Ross has provided proof that USCP refused payment of his accrued leave on September 13, 2013, and that he made a request for counseling with respect to that refusal on March 12, 2014—exactly 180 days later. (See Formal Request for Counseling at 2-3.) However, he offers no evidence that he filed a request for mediation with respect to the accrued-leave issue after he sought counseling on that matter. Ross avers that he did not press for mediation with respect to the accrued-leave contention based on the representations of an employee of the Office of Compliance, who allegedly told Ross that, since he had already “discussed the badge and credentials in mediation[,]” he did not “have to file a new complaint with the Office of Compliance because [his] current mediation cover[ed] that.” (Decl. of Leonard Ross, Ex. 3 to Pl.’s Opp’n, ECF No. 12-5, at 9; see also Pl.’s Opp’n at 9 (same). But Ross does not point to any case law that holds that such representations absolve an employee’s failure to satisfy the statutory mandate that he “shall file a request for mediation[,]”
3. Ross’s Claim Regarding Having Been Forced Into Retirement Satisfies The CAA’s Jurisdictional Requirements
This Court reaches a different conclusion regarding its authority to consider the discrimination and retaliation
Furthermore, insofar as Ross contends that the events leading up to his retirement demonstrate that he was the victim of a constructive discharge (see Collected Administrative Documents at 4), the limitations clock related to the counseling and mediation requirements is deemed to run from the point at which he gave notice of his resignation. See Green v. Brennan, 136 S. Ct. 1769, 1776, 1782 (2016) (explaining that, in the
B. Ross Has Stated A Claim For Race Discrimination And Retaliation With Respect To His Contention That USCP Forced Him To Retire
What remains at this point in the Court’s analysis of Defendant’s motion is Ross’s claim that USCP waged a discriminatory and retaliatory campaign to terminate his employment by forcing him to resign. (See Compl. at 13-14, ¶¶ 4, 12.) To survive USCP’s motion to dismiss for failure to state a claim, Ross’s complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Harris, 791 F.3d at 68 (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). And as noted previously, where the plaintiff is an employee of the legislative branch who claims that he suffered unlawful race discrimination and retaliation in violation of the CAA, the complaint must contain factual allegations from which an inference can be drawn that the defendant has transgressed the antidiscrimination and antiretaliation principles of
For the reasons explained below, this Court concludes that Ross’s complaint states a claim for discrimination and retaliation in violation of the CAA, because the complaint contains sufficient facts to support Ross’s contention that he suffered an adverse employment action due to his race and/or his prior protected activity. Put another way, because the complaint plausibly asserts that Ross was forced to retire involuntarily because USCP made a threat to terminate his employment that was motivated by racial animus and/or by the fact that he was a lead plaintiff in a longstanding class action against USCP, Ross’s termination-related discrimination and retaliation claims are sufficient to survive USCP’s motion to dismiss.
1. By Stating Plausible Facts Related To An Allegedly Discriminatory Constructive Discharge, The Complaint Adequately Alleges That Ross Suffered An Adverse Employment Action That Occurred Because Of His Race
As explained, the linchpin of a successful
As noted, an employer’s termination of the employment relationship (i.e., his discharge of the employee) is a “quintessential” adverse employment action for
Notably, although courts have pointed to various factors when deciding whether or not an employee who resigns or retires can rely upon the constructive-discharge doctrine to satisfy the adverse action requirement, the Supreme Court recently reiterated that the overarching and essential question is whether “a reasonable person in the employee’s position would have felt compelled to resign” under the circumstances presented. Green, 136 S. Ct. at 1776 (internal quotation marks omitted) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); see also Stewart, 786 F. Supp. 2d at 168 (stating that “[a]n actionable constructive discharge claim” requires a plaintiff to show, inter alia, that “the employer deliberately made working conditions intolerable” and that “aggravating factors” justify the plaintiff’s decision to quit, but also acknowledging that the court’s goal is to make an objective assessment of “whether a reasonable person in the employee’s position would have felt compelled to resign” (internal quotation marks and citations omitted)). And, significantly for present purposes, much of the guess-work related to answering this question is eliminated where, as here, the plaintiff alleges that he involuntarily tendered his resignation because of a “thinly veiled (or even overt) threat[] of termination” by his employer. Robinson v. Ergo Sols., LLC, 85 F. Supp. 3d 275, 283 (D.D.C. 2015) (internal quotation marks omitted) (quoting Kalinoski v. Gutierrez, 435 F. Supp. 2d 55, 78 (D.D.C. 2006)); see also Richardson v. Petasis, 160 F. Supp. 3d 88, 128-29 (D.D.C. 2015) (denying summary judgment where a reasonable employee could have “interpret[ed] [the] employer’s actions as ‘a sign of imminent termination’ and as an indication that [the employer] no longer wanted her to remain an employee”). Thus, if a plaintiff alleges that he was the recipient of a discriminatory threat of termination and includes allegations of fact that make plausible the contention that a ra- tional
These principles carry Ross over the
Critically, the complaint says that, in the face of what Ross believed to be a bogus threat of termination that was upheld by the Chief on appeal, Ross “was forced to make the [Hobson’s] choice of either tendering his retirement application or placing his retirement annuity and other benefits ... in jeopardy by continuing to fight his termination.” (Compl. at 11, ¶ 37.) This, he asserts, “compelled [him] to retire in lieu of termination[.]” (Id. at 2, ¶ 7.) And the complaint goes further: it alleges that, in the midst of Ross’s efforts to challenge the proposed termination decision administratively, the Chief stated in writing that “Officer Ross may of course opt to resign or retire prior to final approval [of his termination] by the Capitol Police Board[,]” (Compl. at 10, ¶ 34 (quoting Appeal Decision Letter at 4)), and that as Ross pondered “making the decision to retire,” HR “advised him that his retirement would be in ‘good standing[,]’” enabling him to retain critical benefits (id. at 11, ¶ 38).
Taken together, the complaint’s allegations regarding (1) HR’s proposed termination and the questionable reasons provided for it; (2) the Chief’s letter upholding the firing proposal expressly suggesting that retirement in lieu of termination was an option; and (3) the alleged confirmation by an HR employee that any such retire- ment
Also plainly present in Ross’s complaint are allegations of fact that, if true, support a reasonable inference that Ross was threatened with termination because of his race. One such allegation is the complaint’s suggestion that the stated reason for his proposed firing could not have been the real reason for the threat of termination under the circumstances presented—i.e., the complaint suggests that the proposal to terminate his employment was pretextual, as noted above. (See Compl. at 10, ¶¶ 30-31.) Other alleged indicia of USCP’s discriminatory motives are found in the complaint’s detailed discussion of USCP’s treatment of Ross with respect to other aspects of his employment. For example, the complaint states that USCP discriminatorily denied Ross the opportunity to be placed on light duty instead of administrative leave, which Ross believes would have precluded any claim that he could not perform. (See id. at 11, ¶ 35.) He bolsters this claim by pointing to USCP’s treatment of “similarly situated non-African American employees” who, he says, were placed on light duty after simi- lar infractions. (Id. at 6-9, ¶¶ 23-24 (listing two white males, one white female, and one Hispanic male who were arrested and charged with driving under the influence and were placed on light duty).) Ross deploys comparators again with respect to the termination recommendation itself, averring that a white officer—who was placed on administrative leave and was subject to a protective order for domestic violence, like Ross—was not recommended for termination and was instead permitted to return to work. (See id. at 6, ¶ 23.)
Thus, the complaint plausibly alleges that, with a discriminatory motive, USCP created the factual predicate for Ross’s ostensibly performance-based termination by denying him the opportunity to perform notwithstanding his protective order (in contrast to other non-African American employees) and also by recommending him for termination as a result of the performance limitation (when no such recommendation was made for a similarly situated white employee), despite the pending expiration of the bar to his performance. (See id. at 11, ¶ 35 (“Had the agency placed Mr. Ross on light duty ... as it has done for similarly-situated non-African American officers ... it would have had no basis for trying to terminate him based on inability to [perform].”); id. at 13, ¶ 3 (“Defendant unlawfully discriminated ... on the basis of race ..., when it subjected Plaintiff to disparate treatment as compared to similarly situated non-African American employees).)9
2. The Complaint Adequately Alleges That Ross’s Forced Retirement Was Retaliatory
In addition to contending that Ross’s forced retirement was a discriminatory act by USCP, Ross’s complaint also alleges that this same adverse action was taken as a result of his prior protected activity. (See Compl. at 14, ¶ 12.) To support a retaliation claim, a plaintiff must plead facts that could give rise to a reasonable inference that his employer undertook the alleged adverse action because of his protected activity, see Jones, 557 F.3d at 677, and, specifically, such plaintiff must show that (1) he engaged in an activity that
Applying these standards to the instant case, the protected-activity requirement is easily satisfied, because Ross has been a member of the Blackmon-Malloy class action for many years, as noted above, see supra Part I.A, and engaging in litigation is an activity that the CAA’s retaliation provision plainly protects. See
Finally, in regard to causation, Ross’s complaint maintains that, “[b]y deciding to terminate [him] based on his inability to carry a firearm ... and thereby force his involuntary retirement, [USCP] retaliated against [him] because of his protected activity.” (Compl. at 14, ¶ 12.) As a factual basis for the contention that retaliation was the motivation behind the termination threat and strong suggestion that he ought to retire, Ross points to the same (allegedly) disparately treated officers he identified in the race-discrimination context, and alleges that, in addition to race, those officers also differed from him insofar as they had not previously engaged in protected EEO activity. (See id. at 6-9, ¶¶ 23-24.) Thus, Ross again wields comparator evidence, this time to allege that USCP engineered the conditions for his proposed termination on a retaliatory basis and then proposed the termination in a retaliatory manner, such that he was compelled to resign. Moreover, the temporal proximity of the protected activity and the proposed termination also gives rise to an inference of retaliation that is sufficient to survive USCP’s motion to dismiss, because Ross was a member of the Blackmon-Malloy class during all of the events related to his allegedly forced resignation. See Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir. 2012); see also Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir. 2006) (explaining that the D.C. Circuit has “long held a causal connection ... may be established by showing that the employer had knowledge of the employee’s protected activity, and that the adverse ... action took place shortly after that activity” (alterations in original) (internal quotation marks and citation omitted)).
Defendant’s response to this analysis is cursory and entirely unpersuasive. USCP first reminds the Court that Ross’s complaint “concedes” that a protective order prohibited him from possessing a firearm; that he resigned before he was actually terminated; and that the Chief’s decision needed to be forwarded to the Capitol Police Board for final approval. (Def.’s Mem. at 29.) None of these “concessions” undermines the plausible constructive-discharge theory Ross alleges in his complaint. Nor does this argument cast any doubt on whether either of the letters proposing Ross’s termination are material adverse actions in and of themselves.
On the causation front, USCP contends that Ross’s protected activity is too distant from the events in this case to be considered. Apparently, Defendant believes that the only pertinent litigation events for proximity purposes are those initiating litigation, irrespective of whether that litigation continues. Thus, USCP argues, “the protected activity that occurred in 2005,” by which it apparently means that the consolidation of Ross’s individual suit with the broader Blackmon-Malloy class action, is too far from the adverse action to show causation. (Def.’s Reply at 17.) This
In sum, this Court finds that the allegations of Ross’s complaint suffice to state a claim for retaliation under the
IV. CONCLUSION
For the reasons stated above, this Court concludes that it lacks jurisdiction over Ross’s claims that USCP’s decision to place him on administrative leave and deny him accrued-leave payments constituted unlawful discrimination and retaliation in violation of the CAA, but it finds that Ross’s related contentions that USCP constructively terminated him (because it forced him to resign due to his race and because he was engaged in protected activity) state a claim for discrimination and retaliation. Thus, as set forth in the accompanying order, those latter claims must be permitted to proceed.
SO ORDERED this 16th day of June, 2016.