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Young v. Covington & Burling

January 28, 2010

YOLANDA YOUNG, PLAINTIFF,
v.
COVINGTON & BURLING, LLP, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, Yolanda Young, brings this action against the defendant, the law firm of Covington & Burling, LLP ("Covington"), alleging that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), 16(a) (2006) ("Title VII") and the District of Columbia Human Rights Act ("Human Rights Act"), D.C. Code §§ 2-1401.01(a)(1), 2-1402.11(a)(1), and 2-1402.61(a) & (b) (2006), when it allegedly discriminated against her based on race during her employment at Covington and then retaliated against her based on her complaints about the alleged discrimination, which culminated in her termination. First Amended Complaint ("Am. Compl.") ¶¶ 1-4. This matter is currently before the Court on Covington's motion to dismiss Counts II and VII of the plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant's Motion to Dismiss Counts II and VII Under Fed. R. Civ. P. 12(b)(6) ("Def.'s Mot."), which alleges that Covington's job-assignment and non-promotion policies adversely impact blacks, including the plaintiff, a black female, and that Covington did not take appropriate steps to address the racial discrimination that permeated the firm. The plaintiff opposes Covington's motion.*fn1 Plaintiff's Opposition to Defendant's Second Motion to Dismiss ("Pl.'s Opp'n"). For the following reasons, the Court must grant in part and deny in part Covington's motion.

I. BACKGROUND

The plaintiff, who is black, graduated from the Georgetown Law Center in 1995 and worked as a staff attorney at Covington from February 2005 through August 2007. Am. Compl. ¶¶ 7, 32, 34, 112. According to the plaintiff, Covington created the position of staff attorney in 2005 for "licensed, experienced attorneys who . . . primarily perform online document review, but . . . [who also perform] in a variety of ways as practicing attorneys." Id. ¶ 18. She further contends that in 2006, Covington "implemented a policy[,] in [its] Washington [office,] banning the promotion of all staff attorneys." Id. ¶ 21. Additionally, she asserts, staff attorneys' salaries do not increase with seniority, while in comparison, attorneys hired to the positions of associate, counsel, and partner, enjoy significantly higher salaries that increases with seniority, and who also benefit from the prospect of promotion*fn2 from associate to counsel, and then, eventually, to partner. Id. ¶ 19.

The plaintiff alleges that in the course of her employment at Covington, she observed her white male supervisor communicate, socialize, and take a more active interest in cultivating the careers of white staff attorneys. Id. ¶¶ 35(a)-(c). The plaintiff further alleges that she experienced an environment fraught with racial discrimination and hostility against her and other blacks. Id. ¶¶ 35(d)-(m). The plaintiff alerted her supervisor of her concerns, but claims that they were met with indifference. Id. ¶¶ 35(l), 75. The plaintiff further points to a discrepancy between her 2006 and 2007 performance evaluations, the latter which was noticeably more negative and critical. Id. ¶ 90. The plaintiff also received a reduced bonus in 2007, which amounted to $5,000, "barely more than half the $9,000 she had received the previous, partial year and well below the $15,000 maximum given that year." Id. ¶ 93. Given that she maintained high billable hours and had previously been evaluated positively, the plaintiff asserts that there "was no apparent, lawful explanation for [her] receiving a lower bonus." Id. ¶¶ 90, 93, 94. And the plaintiff represents that several months after receiving her 2007 performance evaluation, "[o]n August 14, 2007, [the d]efendant informed [the p]laintiff that it was terminating her" without any explanation. Id. ¶ 112.

The plaintiff alleges that the data that she has compiled indicates that blacks are disproportionately and overly represented as staff attorneys. See generally id. She further alleges that "[t]he number of black staff attorneys employed by [Covington] increased dramatically when it started the staff[]attorney program." Id. ¶ 27. Furthermore, according to the plaintiff, "[o]ne in two black attorneys at [the Covington] is a staff attorney[, while only] . . . one in fifteen white attorneys" have this status. Id. ¶ 28. Therefore, calculates the plaintiff, "[a] black staff attorney is 7.5 times more likely to be assigned to the staff[]attorney position than a white attorney." Id.

The plaintiff also proffers that her data indicates that at least "[s]ome of the black attorneys could have qualified for an associate position with [Covington]." Id. ¶ 30. According to the plaintiff, "[b]lack practicing attorneys, as a group, typically graduated from higher ranked law schools than their white colleagues." Id. ¶ 16. The plaintiff further alleges that a comparison of the credentials of black and white attorneys at Covington, based on a "combination of law school grades, journal membership, and clerkship experience," indicates that Covington's "job-assignment criteria requires that black staff attorneys graduate from higher ranked schools than its white staff attorneys." Id. ¶¶ 15, 17. As a result, the plaintiff claims that "black lawyers have less opportunity to become partner, counsel, or associate at" Covington, with the benefits commensurate with those positions. Id. ¶ 31. Essentially, the plaintiff argues that Covington's "non-promotion policy disproportionately impacts blacks." Id. ¶ 29.

Based on these allegations, the plaintiff filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC") and the District of Columbia Human Rights Commission on June 13, 2008. Id. ¶ 9. On December 16, 2008, the EEOC notified the plaintiff of her right to sue the defendant for the allegations advanced in her administrative charge of discrimination. Id. ¶ 10. The plaintiff then filed her complaint in this action asserting claims of (1) "[d]iscriminatory [j]ob assignment and [p]romotion" (Count I), (2) "[a]dverse [i]mpact and [e]ffect of [j]ob [a]ssignment [p]olicy and [n]o-[p]romotion [p]olicies" (Count II), (3) "[d]iscriminatory [t]reatment and [h]arassment" (Count III), (4) "[r]etaliation" (Count IV), (5) "[w]rongful [t]ermination" (Count V), (6) "[d]iscriminatory [s]ubterfuge" (Count VI), and (7) "[n]egligent [s]upervision" (Count VII). See generally id.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the plaintiff has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the claim is and the grounds on which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). "Although detailed factual allegations are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the grounds of entitlement to relief, a plaintiff must furnish more than labels and conclusions or a formulaic recitation of the elements of a cause of action." Hinson ex rel N.H. v. Merritt Educ. Ctr., 521 F. Supp. 2d 22, 27 (D.D.C. 2007) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555). Or, as the Supreme Court more recently stated, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). A complaint alleging facts which are "'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557) (brackets omitted). Moreover, "[a] dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks and citations omitted) (emphasis in original). Finally, in evaluating a Rule 12(b)(6) motion, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice[,]" E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted).

III. LEGAL ANALYSIS

A. Count II (Adverse Impact and Effect of Job-Assignment Policy and Non-Promotion Policies)

Count II of the plaintiff's complaint alleges that (1) Covington's "policies[,] practices[,] and . . . criteria it uses in assigning attorneys to positions within the firm have an adverse impact on black attorneys in violation of Title VII and have the effect of violating the provisions of the [Human Rights Act]," Am. Compl. ¶ 125; (2) Covington's "policy and practice of banning the promotion of staff attorneys has an adverse impact on black attorneys in violation of Title VII and has the effect of violating the provisions of the [Human Rights Act]," id. ¶ 126; (3) Covington "can accomplish the goals of its job-assignment and no[n]-promotion policies by using policies or practices that do not have, or have less of, an adverse impact or effect on black attorneys," id. ¶ 127; (4) "it would have been futile for [the p]laintiff and others similarly situated to her to apply for an associate position with [the d]efendant because of their awareness and [the d]efendant's enforcement of the job-assignment and no[n]-promotion policies," id. ¶ 128; and (4) Covington's "employment policies and practices directly and proximately caused [the p]laintiff physical, psychic [sic], reputational, and monetary injury," id. ¶ 129.

Covington argues that the Court should dismiss the plaintiff's disparate-impact claims because (1) the plaintiff failed to make such a charge in her administrative complaint "filed with the EEOC and thus failed to exhaust her administrative remedies as required by law[;]" (2) the plaintiff's "complaint makes clear that she cannot prove that she would have been 'assigned' or promoted to the position of partner, counsel, or associate at Covington but for any facially-neutral policies that she now seeks to challenge[;]" and (3) "insofar as [the plaintiff] makes a ...


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