Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GREGORY SLATE,
Plaintiff,
Civil Action No. 13-00798 (BAH) v.
Judge Beryl A. Howell PUBLIC DEFENDER SERVICE FOR THE
DISTRICT OF COLUMBIA, et al .,
Defendants. MEMORANDUM OPINION
Plaintiff Gregory Slate, who is proceeding pro se , was employed for less than two years at the Public Defender Service for the District of Columbia (“PDS”), and has now filed a lawsuit against PDS and his former PDS supervisor, Rachel Ann Primo, claiming discrimination on the basis of his race and sex, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. , and the District of Columbia Human Rights Act of 1977 (“DCHRA”), D.C. Code §§ 2-1401.01 et seq ., as well as various common law claims. See Notice Filing Redacted Doc. Ex. 1 (“Compl.”) ¶¶ 127–214, ECF No. 15-2. [1] Pending before the Court are both defendants’ motions to dismiss for failure to state a claim upon which relief may be granted, under Federal Rule of Civil Procedure 12(b)(6). PDS’ Mot. Dismiss, ECF No. 17; *2 Primo’s Mot. Dismiss (“Primo’s Mem.”), ECF No. 22. For the reasons set forth below, the defendants’ motions to dismiss are granted.
I. BACKGROUND
A. Allegations in the Plaintiff’s Complaint
As set forth in the Complaint, the plaintiff is a formerly licensed private detective who was employed by PDS as a felony-1 investigator beginning in August 2008. Compl. ¶¶ 1, 6, 11. PDS is a federally funded, independent legal organization that provides legal representation to persons who are financially unable to obtain adequate representation. Id . ¶ 2; PDS’ Mem. Supp. Mot. Dismiss. (“PDS’ Mem.”) at 2, ECF No. 19. According to the plaintiff, he was informed at the time of his hiring that “if [the plaintiff] accepted PDS’s offer of employment,” he “would only be terminated if the United States Attorney’s Office for the District of Columbia or the District of Columbia Attorney General’s Office developed a line of cross examination that rendered [the plaintiff’s] testimony ineffective or adverse.” Compl. ¶ 9. The plaintiff accepted the offer of employment, id. ¶ 10, and never signed an “at-will” contract. Id. ¶ 13.
For the duration of his employment at PDS, the plaintiff was supervised by Primo. Id. ¶ 14. The plaintiff alleges that “[o]ver the course of [his] employment, he was subjected to a long series of overtly sexist, racist, and religious harassment,” id. ¶ 18, including that Primo “would call Plaintiff a ‘pussy’ or a ‘faggot’ and question his manhood,” id. ¶ 25; Compl. (unredacted) ¶ 63, and also refer to men using a number of similarly crude references, as well as using racial slurs in reference to African-Americans, Compl. ¶¶ 28, 42, 43, 46, Hispanic people, id. ¶ 28, and “Muslims, Arabs, and anyone from a middle-eastern country,” id. ¶¶ 28, 80.
On May 30, 2009, the plaintiff and Primo were involved in a car accident. Id. ¶¶ 82–87. According to the plaintiff’s version of these events, after work, the plaintiff drove Primo towards Arlington, Virginia, in her car. Id . ¶¶ 82–84. While en route, Primo, who was the passenger, *3 somehow “caused her vehicle to veer off the road,” and collide with a pole. Id. ¶ 86. After the accident the plaintiff, who alleges that he was injured, accepted a ride from a passing motorist, while Primo remained with the vehicle “to file a police report.” Id. ¶¶ 87–89. Approximately five weeks after the car accident, on July 9, 2009, the plaintiff claims that he filed an internal formal grievance against Primo, alleging “that he was being discriminated against based on his race, color, sex, and religion.” Id . ¶ 91. At some unspecified point thereafter, the plaintiff states that PDS no longer permitted him on the premises, id . ¶ 93, and prevented him from communicating with PDS employees, using his PDS identification or his PDS email account, or working on any PDS cases, id . ¶¶ 93, 95–97.
The plaintiff claims that “in retaliation for Plaintiff’s complaints” he was instructed to “travel to 3 different police stations . . . to inquire if a warrant had been issued for Plaintiff’s arrest” and cautioned that he would be placed on unpaid leave until he could “demonstrate there was no warrant for his arrest by a date certain.” Id . ¶¶ 98–99. The plaintiff alleges that he made such demonstration but that, nevertheless, a PDS employee placed a call to “a law enforcement official in Virginia and insisted that he charge Plaintiff with leaving the scene of an accident.” Id. ¶¶ 100–01. The plaintiff contends that he was subsequently placed on unpaid leave, id. ¶ 102, and terminated by PDS “on the pretext that he was ‘vulnerable to being impeached upon testifying.’” Id. ¶ 108. He further alleges that “[n]either the United States Attorney’s Office for the District of Columbia or the District of Columbia Attorney General’s Office ever developed a line of cross-examination that rendered Plaintiff’s testimony ineffective.” Id. ¶ 110. He additionally claims that PDS “ultimately claimed that Plaintiff was barred from performing his job because of a ‘website’ about Plaintiff that PDS knew about before Plaintiff was hired.” Id. ¶ 103.
The plaintiff states that, “[o]n April 15, 2009,” he filed “a Charge of Discrimination with the Equal Employment Opportunity Commission . . . alleging discrimination and retaliation.” Id . ¶ 118. At some unspecified time after his termination and filing of a formal EEO complaint, the plaintiff claims that he “submitted an application to PDS for certification as a [Criminal Justice Act (“CJA”)] investigator,” id. ¶ 120, but was denied admission into the program on April 28, 2010, “in retaliation” for his protected activity, id. ¶ 121. Also “in retaliation for his engaging in protected activity,” id. ¶¶ 123, 125, the plaintiff claims that he was not hired at some unspecified time by PDS for positions at PDS as a staff investigator and an eligibility examiner, for which he had submitted applications on April 30 and July 25, 2010, respectively, id. ¶¶ 122, 124.
The plaintiff filed a second EEO complaint on November 17, 2010, “stating that PDS had engaged in further retaliation by failing to certify him as a CJA investigator, denying him a position as a staff investigator, and denying him a position as an eligibility examiner.” Id. ¶ 126.
The plaintiff filed the instant suit on May 30, 2013. See generally Complaint (“Compl.
(unredacted)”), ECF No. 1.
B. Factual Matters Referenced In The Complaint The plaintiff expressly refers to, but fails to candidly represent, several documents and events in his Complaint, including his EEO complaint allegedly filed on “April 15, 2009,” id. ¶ 118; PDS’ letter placing the plaintiff on leave subsequent to the May 30, 2009 car accident, id . ¶¶ 98–99; PDS placing the plaintiff on unpaid leave on July 15, 2009, id. ¶ 102; the criminal charge against the plaintiff following his car accident, see id. ¶ 101; and the plaintiff’s termination by PDS on an unspecified date, id. ¶ 108. The documents related to these events directly bear upon the plaintiff’s allegations, as evidenced by the Complaint’s reference to them, but they are not attached to the Complaint. Nonetheless, the defendants have submitted documents related to these events, and the plaintiff in his opposition has raised no objection to *5 their submission or to their authenticity. See generally Pl.’s Opp’n Def. Primo’s Mot. Dismiss & Mot. File Opp’n Def. PDS’ Mot. Dismiss (“Pl.’s Opp’n”), ECF No. 27.
As a general matter, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” F ED . R. C IV . P. 12(d). This conversion rule need not be
triggered, however, when a court considers “the facts alleged in the complaint, documents . . .
incorporated by reference in the complaint . . . or documents upon which the plaintiff’s
complaint necessarily relies even if the document is produced not by the plaintiff in the
complaint but by the defendant in a motion to dismiss.”
Hinton v. Corr. Corp. of America,
624
F. Supp. 2d 45, 46 (D.D.C. 2009) (citations and internal quotation marks omitted);
see also Abhe
& Svoboda, Inc. v. Chao
,
Set against these legal principles, the Court properly considers the following documents
that were referenced in the Complaint and are central to the plaintiff’s claims, or are a matter of
public record, without converting the instant motion into a motion for summary judgment: (1)
the EEO complaint filed by the plaintiff and referenced at paragraph 118 in the Complaint,
see Peters v. District of Columbia
,
Examination of the contents of these documents reveals that prior to the plaintiff’s termination, the plaintiff was involved, and ultimately convicted, in criminal proceedings related to the May 30, 2009 car accident. Less than two weeks after the accident, the plaintiff was placed on administrative leave with pay and told that “[p]rior to returning to work,” he would have to “demonstrate that there is no outstanding warrant for [his] arrest in Virginia” and “[i]f there [were] a warrant for [his] arrest, PDS will assess the situation and determine [his] status at that time.” See Decl. of John T. Koerner (“Koerner Decl.”) Ex. 1, ECF No. 17-4 (June 11, 2009, PDS letter to the plaintiff)). The plaintiff claims to have demonstrated to PDS “that there was no warrant for his arrest” a week after receiving this letter, Compl. ¶ 100, but subsequently, on June 25, 2009, Arlington County issued a felony arrest warrant for the plaintiff for failure to report a hit and run after leaving the scene of the May 30, 2009 accident without calling the police. See Koerner Decl. Ex. 5, ECF No. 17-8 (arrest warrant for felony offense). The plaintiff was then placed on leave without pay on July 15, 2009. Compl. ¶ 102. The plaintiff was charged with driving under the influence and felony hit and run, see Koerner Decl. Ex. 4 at 5:7–13, ECF No. 17-7 (transcript of plea proceedings before the Circuit Court for Arlington County, dated January 26, 2010), and six months after being placed on unpaid leave, he pleaded guilty in January 26, 2010, to driving under the influence and to misdemeanor hit and run. Id. at 20:3–16. Less than two months later, on March 3, 2010, PDS terminated the plaintiff. See Koerner Decl. Ex. 2 at 3, ECF No. 17-5 (EEO Complaint # 570-2010-01067, dated April 15, 2010).
Contrary to the allegations in the plaintiff’s Complaint, he did not file his EEO complaint on “April 15, 2009,” prior to the accident, see Compl. ¶ 118, but rather this charge was filed *9 against PDS on April 15, 2010, see Koerner Decl. Ex. 2 at 2, after the plaintiff had twice been suspended, once with pay and once without pay, and after he had been terminated. [2] The plaintiff’s obfuscation of the details surrounding his termination in the service of his claims is ultimately unsuccessful. With these events in mind, the Court turns to the pending motions to dismiss.
C. The Plaintiff’s Claims
The Complaint raises eleven claims. The plaintiff claims that PDS discriminated against him based on his male gender and unspecified race, and retaliated against him, in violation of Title VII, Compl. ¶¶ 127‒49 (Counts I, II and III), and the DCHRA, id. ¶¶ 150‒80 (Count IV, V and VI); and that Primo also discriminated against him based on his gender and race, in violation of the DCHRA, id. ¶¶ 181‒94 (Count VII and VIII). The plaintiff additionally raises three common law claims, alleging that PDS breached its contract with the plaintiff, id. ¶¶ 195–99 (Count IX), and its duty of good faith and fair dealing, id. ¶¶ 200‒04 (Count X); and that Primo tortiously interfered with the plaintiff’s contractual relations with PDS, id. ¶¶ 205‒14 (Count XI). The plaintiff seeks back pay and back benefits, as well as damages for his physical, mental, and emotional suffering, and injunctive relief. Compl. at 31.
II. LEGAL STANDARD
A. Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
need only plead “enough facts to state a claim to relief that is plausible on its face” and to
“nudge[ ] [his or her] claims across the line from conceivable to plausible.”
Bell Atl. Corp. v.
*10
Twombly,
B. Title VII Discrimination Based on Race or Sex
Title VII of the Civil Rights Act makes it unlawful for an employer to discriminate
against any individual “because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a)(1). Under Title VII, “the two essential elements of a discrimination
claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the
plaintiff’s race, color, religion, sex, [or] national origin.”
Baloch v. Kempthorne,
C. McDonnell Douglas Burden-Shifting Framework
The Supreme Court in
McDonnell Douglas Corp. v. Green
,
After the employer offers a non-discriminatory justification for its actions, the McDonnell Douglas framework falls away, and [the court] must determine whether a reasonable jury “could infer discrimination from the combination of (1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff.”
Vickers v. Powell,
D. Title VII Retaliation Claims
“Title VII’s anti-retaliation provision makes it unlawful for an employer ‘to discriminate
against [an] employee . . . because he has opposed any practice’ made unlawful by Title VII or
‘has made a charge, testified, assisted, or participated in’ a Title VII proceeding.”
Steele v.
Schafer,
As to the first element, protected activity encompasses utilizing informal grievance
procedures such as complaining to management or human resources about the discriminatory
conduct.
Richardson v. Gutierrez,
A plaintiff meets the second element to show a
prima facie
case of retaliation if “a
reasonable employee would have found the challenged action materially adverse,” meaning that
it “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.”
Burlington Northern & Santa Fe Ry. Co. v. White
(“
Burlington Northern
”)
,
548
U.S. 53, 68 (2006) (internal quotations and citations omitted). Thus, adverse actions giving rise
to retaliation claims are broader than for disparate impact claims and are “not limited to
discriminatory actions that affect the terms and conditions of employment,” but reach any harm
that “well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.”
Baird,
Finally, the third element of the test requiring a causal link between the protected activity and the adverse employment action requires “proof that the desire to retaliate was the but-for *14 cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2528 (2013). In other words, “traditional principles of but-for causation” apply and the plaintiff must show that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. at 2533.
Significantly, however, even if the plaintiff establishes a
prima facie
case of retaliation,
dismissal may still be warranted for failure to state a claim if the defendant shows a legitimate
non-discriminatory reason for its actions.
See Broderick v. Donaldson,
III. DISCUSSION
The defendants contend that each of the plaintiff’s claims are flawed, warranting dismissal of the Complaint. First, PDS asserts that the plaintiff’s race and sex discrimination claims are both time-barred and fail to state a cause of action, PDS’ Mem. at 5–9. Second, PDS argues that the plaintiff fails to state a claim for retaliation, id. at 9–12, and has failed to exhaust his administrative remedies with respect to virtually all of the alleged retaliatory actions he claims, id. at 12. Finally, PDS argues that the common law claims are barred by the statute of limitations. Id. at 13–14. In addition to adopting all of the grounds for dismissal set out by PDS, Primo’s Mem. at 1 n.2, Primo asserts that the case against her should be dismissed for three reasons: first, Primo was not properly served, id. at 5–6; second, the DCHRA and common law *15 claims against her are time-barred, id. at 6–7; and, finally, none of the claims for race and sex discrimination or for tortious interference with contractual relations state a cause of action, id. at 8–14. The Court will address the plaintiff’s race and sex discrimination claims against both PDS and Primo, his retaliation claims, and, finally, his common law claims, seriatim . For the reasons explained below, the Court dismisses all the plaintiff’s claims. [4]
A. Gender and Race Discrimination Claims
The plaintiff alleges that he was discriminated against based on his gender under Counts I and IV of his Complaint, and was discriminated against based on his race under Counts II and V of his Complaint. The plaintiff alleges that he was subject to the following discriminatory treatment based on his gender: (1) he was treated “differently than similarly situated female employees in the terms and conditions of employment, based on unlawful considerations of gender,” including “assignment of dangerous and undesirable job duties,” Compl. ¶¶ 132–33, an example of which is having to serve a subpoena in a residence protected by “a large vicious dog,” id . ¶¶ 34–35; see also id. ¶ 151 (alleging that the plaintiff faced gender discrimination “with respect to the terms, conditions, and privileges of Plaintiff’s employment at PDS”); (2) his *16 supervisors tolerated, without reprimand, sexually demeaning comments by his supervisor Primo, id. ¶¶ 19, 21, 32, and Primo improperly “slapp[ing] Plaintiff in the crouch [sic],” id. ¶ 40.
The plaintiff alleges he faced race-based discrimination because PDS: (1) “treated Plaintiff differently than similarly situated employees in the terms and conditions of employment, based on unlawful consideration of race,” id. ¶ 141; and (2) tolerated Primo’s racist comments despite the plaintiff’s complaints, id. ¶¶ 19, 28, 38. The plaintiff additionally alleges discrimination based on both his race and gender based on PDS: (1) failing to investigate and take corrective action regarding the plaintiff’s complaints of race and gender discrimination, id. ¶¶ 153, 163; (2) placing the plaintiff on leave and terminating him, id. ¶¶ 154–55, 165; (3) denying the plaintiff admission into an investigator certification program that PDS administered, id. ¶¶ 119–21; and (4) not hiring the plaintiff for open positions at PDS as a staff investigator or an eligibility examiner, id. ¶¶ 122–25. [5]
In response to the plaintiff’s race and gender discrimination claims, PDS argues, first, that any “on-the-job discrimination” is time-barred under Title VII because the plaintiff “had been placed on leave before ” June 19, 2009, which is 300 days before the plaintiff filed his EEO complaint, PDS’ Mem. at 7 (emphasis added); and, second, that the plaintiff has failed to allege a causal link between these acts and the plaintiff’s race or gender, id . at 8. In addition, although not an argument raised by the defendants, many of the alleged acts underlying the plaintiff’s discrimination are simply not adverse employment actions under either Title VII or the DCHRA.
1.
Most Alleged Discriminatory Actions Occurring While Plaintiff Was On-
the-Job Are Time-Barred And Not Adverse Employment Actions
At the outset, the plaintiff does not dispute that, in the District of Columbia, the filing
period for an EEO charge is 300 days. Pl.’s Opp’n at 2 (assuming, without disputing, that “the
charge filing period in this case began on June 19, 2009”). While Title VII requires “aggrieved
persons” to file a charge with the EEOC within 180 days after the alleged unlawful employment
practice occurred, this period is extended to 300 days when the person has initially instituted a
procedure with a state or local agency. 42 U.S.C. § 2000e-5(e)(1). A “work-sharing”
arrangement between the EEOC and the District of Columbia Office of Human Rights
(“DCOHR”) deems timely-filed EEO charges as cross-filed with the DCOHR, making the
deadline for filing EEO charges in the District of Columbia under Title VII 300 days from the
date of the alleged discrimination.
Peters
,
In this case, because the plaintiff filed his first EEO charge on April 15, 2010, only allegedly discriminatory acts occurring after June 19, 2009 are timely for consideration of his race and gender discrimination claims, and any allegations describing conduct that occurred earlier than that date are time-barred. The plaintiff was put on administrative leave on June 11, 2009, one week before the limitations period began. See Compl. ¶ 99; Koerner Decl. Ex. 1 (PDS Letter, dated June 11, 2009, advising plaintiff that he was placed on administrative leave with pay). Consequently, none of the alleged acts that occurred while he was at work, before his suspension, are timely to support his discrimination claims, leaving only his claims regarding his suspension and termination as a basis for his race and gender claims. [6]
In any event, even if not time-barred, the litany of allegedly discriminatory acts described
in the Complaint as occurring during the plaintiff’s year of in-person employment do not
constitute adverse employment actions. First, as “offensive and repugnant” as his supervisor’s
verbal comments may have been to the plaintiff, Compl. ¶ 33, this conduct does not amount to an
adverse employment action.
See, e.g
.,
Taylor v. FDIC
,
Furthermore, while the plaintiff complains about being required to perform tasks that he
considered “dangerous, unsafe and undesirable,” Compl. ¶ 34, nowhere does he deny that these
tasks were part of his employment responsibilities and, therefore, being required to perform his
job cannot and does not amount to discrimination.
See, e.g
.,
Mungin v. Katten Muchin & Zavis
,
Finally, the plaintiff cites an incident in which his supervisor Primo “slapped Plaintiff in
the crouch [sic],” as evidence of gender discrimination. Compl. ¶ 40. This gesture may very
well constitute an unwelcome, and consequently, inappropriate contact, but the context for this
contact belies its import as a basis for a discrimination claim. As the plaintiff describes the
contact, his supervisor was walking towards the plaintiff in a public hallway, raised her hand “as
if to give Plaintiff a ‘high five’ as she sometimes did,” and then, “before their hands met Primo
abruptly and without warning slapped Plaintiff in the crouch [sic].”
Id
. The plaintiff clearly
understood this hand-action to be a “tease” and noted that “[e]very time Primo would do this
Plaintiff would flinch and Primo would laugh.”
Id
. While being the brunt of such a schoolyard
*21
trick may be unpleasant, this does not amount to an adverse employment action that resulted in a
modification of any material term of the plaintiff’s employment.
See Faragher
,
The only timely adverse employment actions the plaintiff has plead are his suspension
and termination.
[7]
See Baird,
2.
Insufficient Pleading of Causal Link Between Plaintiff’s
Suspension/Termination and His Male Gender
The plaintiff has failed to plead sufficient facts to demonstrate that he was suspended or
terminated because of his male gender for two reasons. First, there is nothing to support a causal
inference that gender was PDS’ motivating factor, other than the plaintiff’s conclusory
allegations.
See
Compl. ¶ 151 (“PDS . . . discriminated against Plaintiff on account of his
gender”);
id.
¶ 129 (“Plaintiff’s gender has continually been a motivating factor in Defendant’s . .
. discriminatory treatment”). Such “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” at the pleading stage and cannot
sustain the plaintiff’s discrimination claim.
Iqbal,
Second, to the extent the plaintiff attempts to establish gender discrimination based on
disparate treatment, the plaintiff’s Complaint still falls short. The plaintiff must show that, by
contrast to how women were treated by PDS, he was treated differently because of his gender.
See Staropoli v. Donahoe
,
Accordingly, the plaintiff’s gender discrimination claims against PDS in Counts I and IV, under Title VII and the DCHRA, respectively, are dismissed.
3. Insufficient Pleading of Causal Link Between Plaintiff’s Suspension/Termination and His Unspecified Race The plaintiff has failed to plead a prima facie case of race discrimination for two reasons. First, nowhere in the Complaint does the plaintiff establish his own race or that of several of his supervisors. See generally Compl. See also McManus v. District of Columbia , 530 F. Supp. 2d 46, 76 (D.D.C. 2007) (dismissing plaintiffs’ Title VII claims because plaintiffs “do not even state their individual races” thereby “do not allege that they are members of any of the classes *24 protected by that statute”). While not apparent from the plaintiff’s pleading, his EEO complaint states that the plaintiff identifies as “American Indian/White,” Koerner Decl. Ex. 2, and the Complaint indicates that he has a “familial relationship with his African-American uncle and cousins.” Compl. ¶ 43. Yet nowhere does the plaintiff clarify the race of which he is actually a member. By omitting a statement of the plaintiff’s race in his Complaint, the plaintiff has failed to allege the most basic fact necessary to plead a claim under Title VII—namely, that he is a member of a protected class. See 42 U.S.C. § 2000e–2(a)(1) (making it unlawful for an employer to discriminate against any individual “because of such individual’s race, color, religion, sex, or national origin”).
Second, even if the plaintiff had identified his race, his claim would still fail because he
has failed to plead that he was suspended and terminated because of his race. As with his gender
discrimination claims, the plaintiff relies on conclusory assertions to assert that “Plaintiff’s race
has continually been a motivating factor in Defendant’s wrongful and discriminatory treatment,”
Compl. ¶ 137, and that he was differently treated “than similarly situated employees . . . based on
unlawful considerations of race,”
id.
¶ 141. Such statements are “‘naked assertion[s]’ devoid of
‘further factual enhancement,’”
Iqbal
,
Accordingly, the plaintiff’s race discrimination claims against PDS in Counts II and V, under Title VII and the DCHRA, respectively, are dismissed. [8]
4. Race and Gender Discrimination Claims against Primo Similarly Fail The plaintiff alleges in Counts VII and VIII that Primo discriminated against the plaintiff based on his gender and race in violation of the DCHRA. Compl. ¶¶ 181–94. The plaintiff further claims that Primo “aided and abetted the PDS’s discrimination against Plaintiff on account of his gender [and race], during the course of his employment.” Compl. ¶¶ 182, 189. Primo argues that these claims are barred because the plaintiff: (1) failed to execute proper service as to Primo, Primo’s Mem. at 5–6; (2) failed to file an EEO complaint against Primo and limited that complaint to PDS, rendering his claims against Primo time-barred, id . at 6–7; and (3) failed to state a claim for discrimination, id. at 8–9. The Court agrees that the plaintiff has failed to allege a prima facie case of discrimination, thus, dismisses the plaintiff’s race and gender discrimination claims against Primo without reaching Primo’s first [9] and second argument. [10]
“Courts have held individuals liable under the DCHRA when they were personally
involved in the discriminatory conduct
. . .
or when they aided or abetted in the discriminatory
conduct of others.”
King v. Triser Salons, LLC
,
[10] Primo further contends that because the plaintiff did not file an EEO complaint against her individually, only
against PDS, the plaintiff’s claims are time-barred by the DCHRA’s one-year statute of limitations.
See
Pl.’s Mem.
at 6–7. Primo’s statute of limitations defense is an affirmative defense,
Colbert v. Potter
,
[11] The plaintiff separately claims that Primo “creat[ed] a hostile and intolerable environment” for the plaintiff, Compl. ¶¶ 182, 189, a charge addressed in the discussion of the plaintiff’s hostile work environment claims in Part III.B, infra .
Inc.
,
To the extent the plaintiff seeks to establish Primo’s liability based on a theory that she
aided and abetted PDS, Primo still cannot be held liable because the Court has found that PDS’
actions were not discriminatory. Consequently, Primo cannot be liable for aiding and abetting
any discriminatory acts when the Court has found that no discriminatory acts occurred.
See
Gaujacq v. EDF, Inc.
,
Accordingly, the plaintiff’s race and gender discrimination claims against Primo under Counts VII and VIII under the DCHRA are dismissed.
B. Hostile Work Environment Claim
The plaintiff does not specifically plead a hostile work environment claim as a separate count in his Complaint. See generally Compl. ¶¶ 127–214. Yet, many of the factual allegations listed in the plaintiff’s Complaint appear to suggest such a claim against either or both defendants. Consequently, the Court will address the sufficiency of any hostile work environment claims based upon the allegations in the Complaint. The plaintiff alleges that he complained to PDS of “hostile treatment on the basis of his gender, and or race,” id. ¶ 75, that the treatment in his workplace “creat[ed] a hostile and intolerable environment,” id. ¶¶ 151, 171, and that PDS did not remedy his “harassing and discriminatory working environment,” id. ¶ 172. He further claims that Primo “creat[ed] a hostile and intolerable environment” for the plaintiff. Id. ¶¶ 182, 189. The underlying conduct described by the plaintiff to support his hostile work environment allegations are: (1) sexually graphic or crude language by Primo, id . ¶¶ 23–27, 30, 38, 39; (2) inappropriate workplace behavior by Primo, id. ¶ 78, including three occasions over the course of a year when Primo allegedly “expos[ed] her buttocks to the plaintiff,” id . ¶ 36, and one occasion when Primo “slapped Plaintiff in the crouch [sic]” after gesturing “as if to give the plaintiff a ‘high five,’” id . ¶ 40; and (3) PDS’ failure to intervene, id. ¶¶ 21, 38, 75. PDS responds that any hostile work environment claim the plaintiff asserts “cannot establish a claim for race or gender discrimination” because “none of the [alleged] incidents occurred within the filing period” for a Title VII claim. PDS’ Mem. at 7. Primo adds that the plaintiff has failed to state a claim because he has failed to allege his race, Primo Mem. at 9, and that the acts described are not severe or pervasive enough to establish a hostile work environment claim, id. at 9–11. The Court agrees that any hostile work environment claim under Title VII is time-barred, and that the plaintiff has failed to plead a prima facie hostile work environment claim under the *29 DCHRA because he has failed to link any hostile work environment to any protected class of which he may be a member.
1.
Requirements For Hostile Work Environment Claim
Although not explicitly mentioned in Title VII, the law is long-standing that this statute
provides a cause of action for a discriminatory hostile work environment.
See Meritor Savs.
Bank, FSB
,
(1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome[] harassment . . . ; (3) the harassment complained of was based upon [the plaintiff’s protected status]; (4) the charged [] harassment had the effect of unreasonably interfering with the plaintiff’s work performance and creating an intimidating, hostile, or offensive working environment . . . ; and (5) the existence of respondeat superior liability. [12]
Davis
,
To determine whether a work environment is sufficiently “hostile” to support a claim, the
Court must look at the totality of circumstances, including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Harris,
In other words, not all forms of workplace harassment are prohibited, only harassment
based on a person’s membership in a protected class.
See, e.g.
,
Stewart,
2. Any Hostile Work Environment Claim Under Title VII Is Untimely As noted in Part III.A.1, the plaintiff did not file his EEO complaint until April 15, 2010, 308 days after he was first suspended and placed on administrative leave, on June 11, 2009. During his suspension, the plaintiff was no longer allowed on PDS premises, Compl. ¶ 93, and could not communicate with any PDS employees other than a supervisor who was not Primo, Compl. (unredacted) ¶ 95. In other words, after his suspension, the plaintiff was not permitted to be exposed to his work environment. Thus, the plaintiff’s allegations concerning hostile activity at his workplace are time-barred under Title VII because the plaintiff was not exposed to a hostile work environment within three hundred days of the filing of his EEO complaint.
For hostile work environment claims, at least one “act contributing to the claim [must]
occur[] within the filing period” for the court to consider “the entire time period of the hostile
environment” for the purposes of determining liability.
See Morgan
,
To avoid this conclusion, the plaintiff responds that two statements in his Complaint sufficiently allege acts of discrimination within the filing period. First, he claims employment with PDS “until March 2010,” when he was terminated, and that “although [he was] occasionally on leave, [he] was required to work on cases for PDS and receive emails from Defendant Primo through his PDS email account well after [] June 19, 2009,” the date of his suspension. Pl.’s Opp’n at 3. Second, he alleges that Primo used offensive terms “in person and by email every *32 day he was employed by PDS.” Id. (citing Compl. ¶ 30). The plaintiff extrapolates from these two statements to reason that he has sufficiently plead that an act of discrimination occurred within the filing period because he has stated that Primo used offensive terms “every day he was employed,” and he was at least formally employed within 300 days of his EEOC filing.
The plaintiff’s strained reasoning fails to save the timeliness under Title VII of any hostile work environment claim for two reasons. First, his argument directly contradicts his own pleadings. The plaintiff was placed on administrative leave on June 11, 2009, the conditions of which prevented the plaintiff from “us[ing] PDS equipment, databases, and email accounts” or “participat[ing] in any PDS case.” See Koerner Decl. Ex. 1. The plaintiff confirms this in his Complaint, alleging that he was “banned . . . from the PDS premises . . . from working on any PDS cases . . . [or] using any of PDS’s databases,” id. ¶¶ 93–94, 96, and “banned . . . from communicating with any PDS employees other than” a supervisor who was not Primo, Compl. (unredacted) ¶ 95. Indeed, these alleged acts suspending the plaintiff from the PDS workplace form part of the plaintiff’s discrimination and retaliation claims. See id. ¶¶ 92–98 (alleging that PDS undertook these measures “in retaliation for Plaintiff’s complaints about EEO violations”). The plaintiff’s present assertion of continuous contact with Primo until his formal termination not only contradicts his own Complaint, but also would have violated the terms of his suspension, rendering his argument in his opposition motion less than credible. See Koerner Decl. Ex. 1. Thus, the plaintiff’s assertion that he continued to use PDS email and enter the PDS workplace to be exposed to Primo’s conduct during the filing period is unavailing in the face of the contradictory allegations in his own Complaint and the documentary evidence referenced in his Complaint.
Second, the plaintiff cannot base his claims on technicalities. The Court must evaluate
the Complaint under
Twombly
’s plausibility standard.
Twombly,
3. The Plaintiff Fails To State Any Hostile Work Environment Claim Under The DCHRA
By contrast to the filing period for hostile work environment claims under Title VII, the
filing period for such claims under the DCHRA is one year.
See
D.C. Code § 2-1403.16 (“A
private cause of action pursuant to this chapter shall be filed in a court of competent jurisdiction
within one year of the unlawful discriminatory act . . . .”). This filing period is tolled, however,
by “the timely filing of a complaint with the [DCOHR] . . . while the complaint is pending.”
Id.
at § 2-1403.16(a). As noted, under a “work-sharing agreement” between the EEOC and the
DCOHR pursuant to 29 C.F.R. § 1626.10, a charge of discrimination filed with the EEOC in the
District of Columbia is deemed cross-filed with the DCOHR.
See Schuler v.
PricewaterhouseCoopers, LLP
,
The plaintiff was suspended by PDS 308 days before he filed his EEO charge on April
15, 2010, and, thus, still had access to the PDS workplace within one year of filing his EEO
complaint. Consequently, the plaintiff’s hostile work environment claim would not be time-
barred under the DCHRA if he has plead acts contributing to this environment that continued or
occurred after April 15, 2009, which is the date one year prior to the filing date of his EEO
charge. The Complaint alleges that certain acts underlying any hostile work environment claims
occurred on specific dates, but none of those took place within the one-year limitations period.
Nevertheless, as the plaintiff points out in opposition, he has also made general allegations that
“almost every day of his employment at PDS,” Primo used crude verbal language, Compl. ¶ 30;
Pl.’s Opp’n at 3, and this conduct may have continued into the eight weeks within the limitations
period before the plaintiff was suspended between April 15, 2009, and June 11, 2009.
See Baird
,
Even though the plaintiff’s hostile work environment claim may be timely under the
DCHRA, this claim against both defendants fails for at least two reasons. First, under the
DCHRA, a plaintiff must establish: “(1) that he is a member of a protected class, (2) that he has
been subjected to unwelcome harassment, (3) that the harassment was based on membership in
the protected class, and (4) that the harassment is severe and pervasive enough to affect a term,
condition, or privilege of employment.”
Daka, Inc. v. Breiner,
Likewise, the plaintiff has failed to show that any hostile work environment claim was
linked to the plaintiff’s gender. Rather, the allegations in the Complaint indicate that Primo’s
*36
use of epithets and sexual innuendo were, in many instances, not directed at the plaintiff but
more generally to multiple people in the office.
See, e.g.
, Compl. ¶ 20 (email sent to entire
investigations division by Primo stating that she was experiencing male sexual arousal);
id.
¶ 39
(“Primo would often tell the plaintiff
and others
,” in an explicit manner, about sexual acts they
could perform on her) (emphasis added);
id.
¶ 28 (“Primo used derogatory terms to describe
anyone
who was not like her”) (emphasis added);
id
. ¶ 23 (alleging that plaintiff would recount
“sexual liaisons”);
id.
¶ 27 (Primo referring to men using the opposed gendered terms of “pussy”
and “tool”). Even if the plaintiff’s allegations were true regarding the crude epithets used by
Primo, given the allegations in the Complaint about how broadly these vulgarities were
disseminated and the frequency of their use, the plaintiff does not plausibly establish that he was
singled out as a target for these comments, let alone that the comments were directed at him due
to his male gender or his unspecified race.
See Hampton v. Vilsack
,
[E]xpressions [that employ obscene language] are commonplace in certain circles, and more often that not, when these expressions are used . . . their use has no connection whatsoever with the sexual acts to which they make reference. . . . Ordinarily, they are simply expressions of animosity or juvenile provocation . . . .
Id.
(quoting
Johnson,
Obscenity alone cannot sustain a hostile work environment claim unless there is
discriminatory intent.
See Peters
,
Second, the plaintiff has failed to show that the charged harassment was “severe and
pervasive enough to affect a term, condition, or privilege of employment,”
Joyner
, 826 A.2d at
372 n.11, or “unreasonably interfere[ed] with the plaintiff’s work performance.”
Davis
, 275 F.3d
at 1122–23. The plaintiff contends that due to his work environment, on his own initiative, he
“began increasing the time that he spent working from home,” Compl. ¶ 47, and altered his hours
so he could “come to the office at night rather than during the day,”
id
. ¶ 48. These are actions
that the plaintiff voluntarily undertook, and the plaintiff has not alleged in his Complaint that he
ever incurred a penalty by PDS for his election to change his work schedule. In other words,
“there is no allegation that [the plaintiff] was penalized by any material adverse change in the
terms or conditions of [his] employment” because of his self-imposed adjustment to his work
hours.
[14]
See Peters
,
Accordingly, the Court dismisses the plaintiff’s claims insofar as they allege a hostile work environment claim under Title VII or the DCHRA against PDS or Primo.
C. Retaliation Claim
The plaintiff has asserted claims for retaliation in Counts III and VI against PDS under
Title VII and the DCHRA, respectively. Compl. ¶¶ 143–49, 170–80. In support of these claims,
the plaintiff alleges that he engaged in protected activity when he complained to supervisors
effort to transform amalgamation of disparate treatment claims into cause of action for hostile work environment for
lack of connection in pervasive pattern of severe harassment) (citing
Lester,
about Primo’s conduct, including after Primo circulated crude emails in September and November, 2008. Id . ¶¶ 20–21, 38–41, 75. He also filed “a formal grievance [] against Primo on July 9, 2009,” id . ¶ 91, as well as two EEO charges on “April 15, 2009” and “November 17, 2010,” id . ¶¶ 118, 126; see also Pl’s Opp’n at 4. According to the plaintiff, as a result of this protected activity, PDS retaliated against the plaintiff by: (1) suspending him, Compl. ¶ 145; [15] (2) terminating him, id. ; (3) withholding “overtime [wages the plaintiff] was owed,” id. ¶ 173; (4) opening an investigation into the plaintiff and the May 30, 2009 car accident and procuring an attorney to represent Primo, id . ¶¶ 104–05; and (5) “refus[ing] to certify [the plaintiff] as a CJA investigator, and refusing him employment opportunities,” id. ¶ 173. PDS responds that these retaliation claims fail under Federal Rule of Civil Procedure 12(b)(6) because the plaintiff has not sufficiently pleaded facts to establish causation, and has failed to exhaust his administrative remedies with respect to some of the alleged retaliatory actions. PDS’ Mem. at 10–12.
At the outset, contrary to the plaintiff’s understanding, his general allegations about
making informal complaints about Primo’s conduct do not amount to protected activity because
the plaintiff made no mention of discrimination. The plaintiff is required to allege discrimination
in order for a complaint to be “protected” under Title VII.
See Peters
,
The plaintiff has additionally pleaded that he suffered adverse employment actions in the
form of his suspension and termination. The additional retaliatory acts alleged by the plaintiff,
including his failure to receive overtime pay, PDS’ investigation of the plaintiff, and PDS’
assistance in procuring Primo counsel, have not been administratively exhausted.
[16]
Title VII
plaintiffs must first raise an act of retaliation in an EEO complaint.
See Williams v. Wash.
Metro. Area Transit Auth.
,
1. Insufficient Pleading of Causal Link Between Protected Activity and Plaintiff’s Suspension/Termination
The viability of the plaintiff’s retaliation claim rests on the sufficiency of his allegations
that the adverse employment actions he allegedly suffered from his suspension and termination
were a result of his engagement in the protected activity on the four occasions described above:
namely, his complaint at an unspecified time to unspecified parties about Primo’s “hostile
treatment of him on the basis of his gender,”
id.
¶ 38; plaintiff’s formal internal grievance against
Primo alleging discrimination based on “race, sex, color, and religion,”
id.
¶ 91; and his two
EEO complaints.
See Howard R.L. Cook & Tommy Shaw Found. for Black Emps. of the Library
of Cong., Inc. v. Billington
,
Second, the only possible protected activities that could sustain the plaintiff’s retaliation
claim are his formal and informal internal complaints against Primo, but the allegations
surrounding these internal complaints render them insufficient.
[17]
Specifically, the plaintiff
cannot establish a causal connection between his internal complaints against Primo and his
suspension and/or termination because he has plead no facts to establish that the officials at PDS,
who made the decisions to suspend and terminate him, would have retaliated against the plaintiff
for complaints he filed against Primo. The plaintiff has not alleged that Primo made these
decisions or was even a critical force behind these decisions. On the contrary, the plaintiff
alleges that a different manager was instrumental in setting the conditions for his suspension and
his termination. Compl. ¶¶ 98–101;
see also id.
¶ 71.
See Peters
,
2.
PDS Sufficiently Demonstrated Legitimate, Nondiscriminatory Basis for
Plaintiff’s Alleged Adverse Employment Actions
Even if the plaintiff had succeeded in stating a
prima facie
case of retaliation, under the
burden-shifting
McDonnell Douglas
framework, the plaintiff’s claims would still fail because
PDS has established a “non-discriminatory justification for its actions.”
Vickers,
The timing sequence and length of time between the alleged protected activity and the
plaintiff’s termination strongly indicates that the plaintiff’s conduct in connection with the car
accident and his subsequent criminal conviction were the reasons for his termination, which
significantly undercuts the plaintiff’s claims that his suspension and termination were based on
his protected activity. The plaintiff failed to present any, let alone sufficient, evidence to rebut
PDS’ legitimate, nondiscriminatory reason for the plaintiff’s suspension and termination.
See
Joshi v. Prof’l Health Servs., Inc.
,
The plaintiff suggests in his Complaint that PDS “terminated plaintiff on the pretext ‘that he was vulnerable to being impeached upon testifying,’” Compl. ¶ 108, because PDS has employed other investigators with criminal records. This argument is unconvincing because none of the other employees the plaintiff references apparently incurred criminal charges during the course of their employment, and their underlying conduct did not endanger a fellow colleague at PDS. See Compl. (unredacted) ¶ 73 (alleging that colleague was internally reprimanded for misconduct—though never convicted—and was permitted to continue working at PDS); Compl. ¶ 113–115 (alleging that Primo had been “convicted of a possessory crime” and “possession of false identification” prior to beginning her employment, but PDS “continue[d] to employ her” after it discovered the charges); Compl. (unredacted) ¶ 116 (alleging that colleague continues to be employed by PDS despite a conviction on an unspecified date). Consequently, the plaintiff has failed to establish that PDS’ reason for suspending and terminating him were merely pretextual. Rather, under the McDonnell Douglas framework, PDS has shown a legitimate, non-discriminatory reason for taking adverse employment action against the plaintiff.
The plaintiff has failed to allege sufficiently a causal link between his EEO-protected activity and PDS’ adverse employment actions and, further, to rebut PDS’ legitimate, nondiscriminatory grounds for his suspension and termination or show that these adverse employment actions were merely a pretext. Accordingly, the plaintiff’s retaliation claims are dismissed for failure to state a claim.
D. The Common Law Claims Sounding in Tort and Contract Are Time-Barred The plaintiff alleges two common law claims against PDS: that PDS breached its oral contract with the plaintiff by terminating him even though no line of adverse cross-examination *46 was developed against him, Compl. ¶¶ 9, 195–99 (Count IX), and that PDS breached its duty of good faith and fair dealing to the plaintiff by “engaging in conduct to attempt to discredit Plaintiff and prevent him from being gainfully employed in the future, fabricating reasons to investigate Plaintiff, taking away Plaintiff’s job responsibilities and authority, defaming him, failing to rectify discriminatory and retaliatory practices against him, failing to provide agreed upon overtime, and terminating him.” Id. ¶ 202 (Count X). The plaintiff’s third common law claim alleges that Primo tortiously interfered with his contractual relations with PDS by “lying about Plaintiff’s performance, [and] lying about his conduct in an off-duty car accident,” which thereby “injur[ed] Plaintiff’s reputation.” Id . ¶¶ 207–14 (Count XI). The statute of limitations for contract and tort claims is three years. D.C. Code § 12-301(7), (8). The plaintiff was terminated on March 3, 2010, see Koerner Decl. Ex. 2, and filed the instant suit on May 30, 2013, see generally Compl. (unredacted), two months and 27 days after the expiration of the three-year statute of limitations. Thus, as explained further below, the plaintiff’s common law claims are time-barred. [18]
This Circuit has “repeatedly held that courts should hesitate to dismiss a complaint on
statute of limitations grounds based solely on the face of the complaint.”
Firestone v. Firestone
,
As noted, the statute of limitations in the District of Columbia for raising a claim in tort,
or “on a simple contract, express or implied,” is three years.
See
D.C. Code § 12-301(7), (8);
see
also Murray v. Wells Fargo Home Mortgage
,
1.
Breach of Contract Claim in Count IX
The plaintiff’s breach of contract claim is based on his termination, which allegedly
breached the purported oral contract between PDS and the plaintiff.
See
Compl. ¶¶ 195–99.
“The statute of limitations [for breach of contract claims] begins to run at the time the contract is
breached,”
see Murray
,
2.
Breach of Duty of Good Faith and Fair Dealing in Count X
Similarly, the plaintiff’s cause of action for breach of PDS’ duty of good faith and fair
dealing accrued on the date the plaintiff was terminated. In the District of Columbia, the breach
of the duty of good faith and fair dealing is an “implied duty” that stems from the contract itself,
“which means that ‘neither party shall do anything which will have the effect of destroying or
injuring the right of the other party to receive the fruits of the contract.’”
C & E Servs., Inc. v.
Ashland Inc.
,
3.
Tortious Interference with Contractual Relations in Count XI
Finally, the claim that Primo tortiously interfered with plaintiff’s contract prior to his
termination also accrued on or before the date the plaintiff was terminated. The plaintiff claims
that Primo, “in an effort to have Plaintiff terminated,” “misrepresented . . . facts concerning
Primo and Plaintiff’s conduct surrounding the off-duty accident.” Compl. ¶ 90. It is clear that
the plaintiff knew or should have known of these alleged misrepresentations when PDS
suspended him and later terminated him in connection with the May 30, 2009 car accident.
See
Ling Yuan Hu v. George Washington Univ.
,
4.
Miscellaneous Post-Termination Actions by PDS
The plaintiff additionally alleges in the Complaint that PDS failed to rehire the plaintiff
for open positions, and failed to admit the plaintiff into an investigator certification program,
both of which occurred after his termination and within three years of his filing the present suit.
See
Compl. ¶¶ 119–125. The plaintiff does not allege an independent cause of action in common
law based on these incidents.
See generally
Compl. Yet, these instances cannot act to extend the
accrual date of the plaintiff’s contract claims against PDS. For statute of limitations purposes,
the accrual date begins on the date the contract is breached, not on the date of related incidents.
See Wright v. Howard Univ.
,
Accordingly, the Court dismisses the plaintiff’s common law claims against PDS in Counts IX and X, and against Primo in Count XI, as barred by the statute of limitations.
IV. CONCLUSION
Accordingly, for the reasons stated above, the Court dismisses the plaintiff’s claims in their entirety. An appropriate order accompanies this Memorandum Opinion.
Date: April 2, 2014
__________________________ BERYL A. HOWELL United States District Judge
Notes
[1] Shortly after the plaintiff filed his Complaint, the Court granted PDS’ request to redact “numerous highly prejudicial and unsupported allegations . . . that have no bearing on his underlying allegations against Defendants.” See Mem. Supp. PDS Mot. Seal Pl.’s Compl. at 1, 5, ECF No. 3-1; 7/23/2013 Minute Order. A redacted version of the Complaint was filed on July 25, 2013. See generally Compl. The instant motion is resolved upon consideration of the entire Complaint, see Compl. (“Compl. (unredacted)”), ECF No. 1, while any quotations are from the redacted version of the Complaint. The plaintiff in his opposition repeats his objection to the redactions made in the Complaint. See Pl.’s Opp’n. Def. Primo’s Mot. Dismiss & Mot. File Opp’n Def. PDS’ Mot. Dismiss (“Pl.’s Opp’n”) at 4–6, ECF No. 27. The “interrelated and compelling reasons” identified in the Court’s Minute Order that warranted granting the defendant’s request to redact the Complaint are still applicable, see 6/19/2013 Minute Order, and the Court will not unseal the unredacted version of the Complaint as there is no basis to do so for the purposes of resolving the instant motion.
[2] There can be no serious dispute that the latter date is accurate, as this is the date that is stamped on the EEO complaint. See Koerner Decl. Ex. 2 at 2. Moreover, the plaintiff states in his second EEO complaint, filed on November 17, 2010, that he “filed an EEOC charge of discrimination (#570-2010-01067) on or around April 15, 2010 .” Koerner Decl. Ex. 6, ECF No. 17-9 (EEOC complaint # 570-2011-00223 filed November 17, 2010, and date stamped December 6, 2010) (emphasis added); see also Compl. ¶ 126.
[3] DCHRA and federal discrimination claims are analyzed under the same legal standard.
See Gaujacq v. EDF, Inc.
,
[4] PDS argues that the plaintiff failed to file a timely opposition to PDS’ motion to dismiss the Complaint and that its
motion should therefore be granted as conceded. PDS’ Reply Supp. Mot. Dismiss (“PDS’ Reply”) at 1–2, ECF No.
29. PDS filed its motion to dismiss on August 12, 2013.
See generally
PDS’ Mem. The plaintiff requested an
extension of time to file an opposition, but the Court struck this motion for failing to comply with Local Civil Rule
7(m) requiring the movant to discuss an anticipated, nondispositive motion with opposing counsel.
See
9/13/2013
Minute Order (citing LCvR 7(m)). The plaintiff never refiled his motion but instead timely filed an opposition to
Primo’s motion that was styled as a dual opposition to both Primo and PDS’ motions to dismiss, and also sought the
Court’s leave to file an opposition to PDS’ motion to dismiss out of time.
See generally
Pl.’s Opp’n. The late filing
of the opposition more than two months after PDS filed its motion contravenes Local Civil Rule 7(b), requiring all
oppositions to be filed within 14 days of service of the opposed motion.
See
LCvR 7(b). Further, the plaintiff’s
opposition-cum-motion failed to comply with Federal Rule of Civil Procedure 7(b) requiring such requests for leave
to file out of time be made by motion, not merely referenced in opposition papers.
See
F ED . R. C IV . P. 7(b).
Nevertheless, the Court is mindful that
pro se
litigants are given “more latitude” than those who are represented by
counsel.
See Haines v. Kerner
,
[5] The plaintiff states that he was subject to a number of other acts of discrimination, but these are all related to the plaintiff’s suspension as they are all consequences that flow from being suspended. These include “block[ing] Plaintiff from his PDS email account and delet[ing] all of his emails,” Compl. ¶ 92, “bann[ing] Plaintiff from PDS premises,” id. ¶ 93, “bann[ing] Plaintiff from working on any cases,” id. ¶ 94, “bann[ing] Plaintiff from communicating with any PDS employees,” id. ¶ 95, “bann[ing] Plaintiff from using any of PDS’s databases,” id. ¶ 96, and bann[ing] Plaintiff from using his PDS identification,” id. ¶ 97. Such acts are considered by the Court not as individual discriminatory acts, but as the characteristics of a suspension. The Court similarly considers the plaintiff’s claim that PDS “revoked Plaintiff’s authority to properly carry out his job . . . [and] undermine[d] his position at PDS” as a reference to his suspension and termination, which the Court considers below, rather than as independent acts of discrimination. Id. ¶ 107.
[6] The Court notes that the plaintiff cannot allege a discrimination claim under Title VII for his first suspension, as this occurred on June 11, 2009, eight days before the initiation of the 300-day filing period under Title VII, and is therefore untimely. Nevertheless, the plaintiff may still be able to state a claim on the basis of his first suspension under the DCHRA, which, as explained more fully below, permits plaintiffs to file suit based on claims that occur one year prior to the filing of a complaint. See infra Part III.B.3. The Court will thus consider the plaintiff’s first suspension solely with respect to any race or gender discrimination claim under the DCHRA, not Title VII.
[7] Although failure-to-hire may constitute an adverse employment action, the plaintiff has failed to plead facts
sufficient to sustain such a claim based on his allegation that PDS did not hire him for two open positions. Compl.
¶¶ 122–25. Such failure-to-hire cases must allege that the position applied for “remained open; and that the
employer continued to seek applicants from persons of complainant’s qualifications.”
Chappell-Johnson v. Powell
,
[8] In addition, as discussed in Part III.C.2,
infra
, under the
McDonnell Douglas
framework, PDS has presented
unrefuted evidence of a legitimate, nondiscriminatory basis for the adverse employment actions taken against the
plaintiff due to his conduct in connection with the May 30, 2009 car accident and his subsequent criminal
conviction. Having considered the plaintiff’s failure to plead a
prima facie
case, the plaintiff’s failure to rebut PDS’
“proffered explanation for its actions,” and the lack of further evidence of discrimination by PDS, PDS’ proffered
reason is sufficient to defeat the plaintiff’s claims of discrimination on the basis of both his male gender and
unspecified race.
Vickers,
[9] Primo contends that the plaintiff failed to file a copy of the waiver of service as to Primo and thereby failed to
perfect service under Federal Rule of Civil Procedure 4, with the result that this Court does not have jurisdiction
over Primo. Primo’s Mem. at 5–6. Although the plaintiff did not file proof of service, the Court granted the
plaintiff’s motion for an extension of time to file Primo’s waiver of service form
nunc pro tunc
on October 16, 2013,
after Primo filed her motion to dismiss.
See
10/16/2013 Minute Order. Although the plaintiff has yet to file the
waiver of service form, in this Circuit, “[p]ro se litigants are allowed more latitude than litigants represented by
counsel to correct defects in service of process and pleadings.”
Moore
,
[12] When a supervisor with immediate or successively higher authority created or contributed to the alleged hostile
work environment, “an employer is subject to vicarious liability to a victimized employee,” subject to an affirmative
defense about the reasonableness of the employer’s conduct as well as that of the victim, “[w]hen no tangible
employment action is taken.”
Faragher
,
[13] Although the D.C. Circuit has applied this five-part test in the context of a hostile work environment based on gender, the Court did not expressly limit this criteria to claims of gender discrimination. See Davis , 275 F.3d at 1122–23 (listing the five-part test as the requirement “to make a prima facie Title VII hostile environment claim”). As explained below, even if solely applicable to hostile work environment claims for gender discrimination, this standard is nevertheless applicable because the Court only applies it to the plaintiff’s allegation of a hostile work environment based on his gender, as the plaintiff’s race-based claims are resolved on other grounds.
[14] Although the plaintiff was suspended twice and terminated, these claims form the basis of his retaliation and
discrimination claims, and not part of his hostile work environment claims.
See Hampton,
[15] The plaintiff also alleges in his Complaint that he was retaliated against because PDS “barr[ed] Plaintiff from the premise [sic], and order[ed] him not to communicate with PDS staff.” Compl. ¶ 173. See also id. ¶¶ 92–98 (alleging that PDS retaliated against the plaintiff by: blocking the plaintiff from his PDS email account; banning him from the premises, from communicating with any PDS employees, or from accessing any PDS databases; preventing him from working on any cases; and instructing him to inquire if a warrant had been issued in his name). As noted, supra n.5, these are not separate acts, but are grouped together as the consequences of the plaintiff’s suspension. Consequently, the Court’s discussion of the plaintiff’s suspension as an alleged act of retaliation incorporates these allegations.
[16] The plaintiff’s post-termination allegation claims alleging failure to certify and failure to hire have been administratively exhausted. See Compl. ¶ 126; Koerner Decl. Ex. 6 (second EEO complaint alleging failure to hire and failure to certify which was pending before EEOC for over 180 days before plaintiff filed suit); see also 42 U.S.C. §§ 2000e–5(f)(1) (EEO complaint is exhausted when pending before an agency or EEOC for at least 180 days). Yet, as noted, none of these alleged post-termination acts of discrimination state a claim for an adverse employment action. See supra Part III.A.1 & n.7. Therefore, they are not properly considered as acts of retaliation with respect to the plaintiff’s retaliation claim.
[17] The plaintiff contends in his opposition that he has sufficiently plead retaliation, directing the Court to “the
explicit language of the Complaint” alleging that PDS took adverse actions against the plaintiff “[i]n retaliation for
Plaintiff’s complaints about EEO violations.” Pl.’s Opp’n at 3 (citing Compl. ¶ 102). Such “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice” at the pleading stage.
Iqbal,
[18] The Court has jurisdiction over the plaintiff’s common law claims in Counts IX–XI under 28 U.S.C. § 1367
because these are part of the same case or controversy as the Title VII claims.
See, e.g.
,
Grissom v. District of
Columbia,
[19] Even if the alleged breach of the duty of good faith and fair dealing were deemed to accrue as of the date of the plaintiff’s first suspension on June 11, 2009, this claim would be even further outside the applicable statute of limitations and, therefore, would still be time-barred.