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Slate v. Public Defender Service for District of Columbia

United States District Court, D. Columbia.

April 2, 2014

GREGORY SLATE, Plaintiff,
v.
PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA, et al., Defendants

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GREGORY A. SLATE, Plaintiff, Pro se, Washington, DC.

For PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA, Defendant: Stanley E. Woodward, Jr., AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, DC.

For RACHEL ANN PRIMO, Defendant: Karl A. Racine, LEAD ATTORNEY, VENABLE LLP, Washington, DC.

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

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; 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

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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, 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,

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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 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." Fed.R.Civ.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, 508 F.3d 1052, 1059, 378 U.S.App.D.C. 355 (D.C. Cir. 2007) (court may consider on a motion to dismiss " facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice" (quoting Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173, 374 U.S.App.D.C. 46 (D.C. Cir. 2006))). Courts have considered documents attached to motions to dismiss and opposition papers without converting the motion into one for summary judgment when the documents were referenced in the Complaint and were central to the plaintiff's claims. See, e.g., Saunders v. Mills, 842 F.Supp.2d 284, 293 n.2 (D.D.C. 2012) (considered " Letter of Counseling attached to Defendant's Motion to Dismiss without converting the motion to one for summary judgment because the letter is repeatedly referenced in the Complaint . . . and 'is central to plaintiff's claim' that the letter was retaliatory" ) (citation omitted); Nat'l R.R. Passenger Corp. v. Veolia Transp. Servs., Inc., 592 F.Supp.2d 86, 92 n.5 (D.D.C. 2009) (citing Langer. v. George Washington Univ., 498 F.Supp.2d 196, 202 n.1 (D.D.C. 2007) (declining to convert a 12(b)(6) motion to dismiss into a motion for summary judgment after taking into consideration a letter that was " referred to and quoted from in the complaint" and was " central to plaintiff's claim" )); Pearson v. District of Columbia, 644 F.Supp.2d 23, 29 n.1 (D.D.C. 2009), aff'd, 377 F.App'x 34 (D.C. Cir. 2010) (considering on a motion to dismiss several exhibits, including memoranda, emails, and letters, attached to defendant's motion to dismiss and mentioned at least once in the Complaint). In addition, a court may consider, without triggering the conversion rule, " matters of which

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. . . judicial notice" may be taken, such as public records. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624, 326 U.S.App.D.C. 67 (D.C. Cir. 1997); see Kaempe v. Myers, 367 F.3d 958, 965, 361 U.S.App.D.C. 335 (D.C. Cir. 2004) (finding that court may take judicial notice of public records on motion to dismiss); District Hosp. Partners, L.P. v. Sebelius, No. 11-0116, 971 F.Supp.2d 15, 2013 WL 5273929, at *12 n.14 (D.D.C. Sept. 19, 2013) (same).

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, 873 F.Supp.2d 158, 179 (D.D.C. 2012) (concluding that EEO complaint and right-to-sue letter in a Title VII action could be properly considered on a motion to dismiss and were not deemed " outside the pleadings" ); Dyson v. District of Columbia, 808 F.Supp.2d 84, 87 n.3 (D.D.C. 2011) (finding that in Title VII action, " [e]xhibits such as the EEOC . . . documents attached to plaintiff's opposition may be considered in deciding the motion to dismiss" ); Baird v. Snowbarger, 744 F.Supp.2d 279, 287-8 & n.2 (D.D.C. 2010) (citing Rogan v. Giant Eagle, Inc., 113 F.Supp.2d 777, 782 (W.D. Pa. 2000) (" It is clear to us that . . . we may consider the EEOC complaint and related EEOC documents . . . either as undisputed documents referenced in the complaint or central to the plaintiff's claim . . . ." )), vacated in part on other grounds, Baird v. Gotbaum, 662 F.3d 1246, 398 U.S.App.D.C. 290 (D.C. Cir. 2011); (2) the letter placing the plaintiff on administrative leave with pay and advising the plaintiff that he could be placed on unpaid leave if he did not demonstrate that there was no warrant for his arrest, which letter is referenced in paragraphs 98-99 of the Complaint, see Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C. 1999), aff'd, 38 F.App'x 4 (D.C. Cir. 2002) (concluding that court could properly consider on a motion to dismiss chapter of Personnel Manual and " various letters and materials produced in the course of plaintiff's discharge proceedings" attached to plaintiff's opposition that were " referred to in the complaint and [were] central to plaintiff's claims" without converting to a summary judgment motion); (3) the warrant for the plaintiff's arrest, which is referenced in paragraph 101 of the Complaint and is a matter about which the Court may take judicial notice, as it is a matter of public record, see Causey v. Parish of Tangipahoa, 167 F.Supp.2d 898, 906 (E.D. La. 2001) (finding that court may take judicial notice of an arrest warrant); McPhearson v. Anderson, 874 F.Supp.2d 573, 579 & n.7 (E.D. Va. 2012) (considering arrest warrant when ruling on motion to dismiss because it was " a public document [which] does not necessitate conversion of the Motion to Dismiss into a motion for summary judgment" ); and (4) the plaintiff's guilty plea in connection with the May 30, 2009 car accident, which is not referenced in the Complaint but is a matter of public record about which the Court may take judicial notice, see Covad Commc'ns Co. v. Bell A. Corp., 407 F.3d 1220, 1222, 366 U.S.App.D.C. 24 (D.C. Cir. 2005) (citing Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228, 300 U.S.App.D.C. 263 (D.C. Cir. 1993) (court may look to record of another proceeding " to avoid unnecessary proceedings when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted" )); Morris v. Fed. Bureau of Prisons, No. 09-2034, 2010 WL 2574142, at *1 (D.D.C. June 25, 2010) (collecting cases and concluding that " the Court may take judicial notice of matters

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of public record, such as prior court proceedings" ).

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 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

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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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than " merely consistent with' a defendant's liability" ; " the plaintiff [must] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (quoting Twombly, 550 U.S. at 557); accord Rudder v. Williams, 666 F.3d 790, 794, 399 U.S.App.D.C. 45 (D.C. Cir. 2012). The Court " must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17, 381 U.S.App.D.C. 76 (D.C. Cir. 2008) (citations and internal quotation marks omitted).

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, 550 F.3d 1191, 1196, 384 U.S.App.D.C. 85 (D.C. Cir. 2008); accord Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493, 380 U.S.App.D.C. 283 (D.C. Cir. 2008).[3] An " adverse employment action" is " 'a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.'" Baird v. Gotbaum, 662 F.3d 1246, 1248, 398 U.S.App.D.C. 290 (D.C. Cir. 2011) (quoting Douglas v. Preston, 559 F.3d 549, 552, 385 U.S.App.D.C. 120 (D.C. Cir. 2009)); see also Stewart v. Ashcroft, 352 F.3d 422, 426, 359 U.S.App.D.C. 139 (D.C. Cir. 2003) (" An [a]dverse employment action . . . [entails a] tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different

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responsibilities." ). An adverse employment action occurs if an employee " experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131, 353 U.S.App.D.C. 301 (D.C. Cir. 2002).

C. McDonnell Douglas Burden-Shifting Framework

The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), set forth a burden-shifting framework to apply in Title VII cases. Under this framework, once the plaintiff has established a prima facie case under Title VII, the " burden shifts to the defendant to prove that 'the adverse employment actions were taken for a legitimate, nondiscriminatory reason.'" Youssef v. FBI, 687 F.3d 397, 402, 402 U.S.App.D.C. 64 (D.C. Cir. 2012) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)); see also Ford v. Mabus, 629 F.3d 198, 201, 393 U.S.App.D.C. 400 (D.C. Cir. 2010) (same). Under the McDonnell Douglas burden-shifting framework:

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, 493 F.3d 186, 195, 377 U.S.App.D.C. 213 (D.C. Cir. 2007) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 332 U.S.App.D.C. 256 (D.C. Cir. 1998)); accord Jones v. Bernanke, 557 F.3d 670, 678, 384 U.S.App.D.C. 443 (D.C. Cir. 2009). In other words, once an employer produces a legitimate, nondiscriminatory reason for its action, " the sole remaining issue [is] 'discrimination vel non. '" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). The Supreme Court has made clear that, at the motion to dismiss stage, the question " [is] 'not whether [the plaintiff] will ultimately prevail,' . . . but whether his complaint [is] sufficient to cross the federal court's ...


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