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Burnett v. American Federation of Government Employees

United States District Court, D. Columbia.

April 22, 2015

Larry Burnett, et al., Plaintiffs,
American Federation of Government Employees, Defendant




Amit P. Mehta, United States District Judge.


Plaintiff Larry Burnett is an African American man and owner of Plaintiff Status Controls, Inc., a corporation that provided electrician services to Defendant American Federation of Government Employees (" AFGE" ). Burnett and Status Controls filed suit against AFGE, alleging that AFGE subjected them to racial discrimination and a hostile work environment in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Status Controls also asserted claims of breach of contract, conversion, and tortious interference with contract and business relations. Burnett asserted an additional claim of intentional infliction of emotional distress. Before the court is Defendant's Second Motion to Dismiss all six counts in Plaintiffs' First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

For the reasons stated below, the court denies Defendant's motion as to all counts, except the two Section 1981 claims against Burnett.


Plaintiffs' First Amended Complaint alleges the following. Burnett, an African American man and resident of Maryland, is the owner and chief operating officer of Status Controls, Inc. (" Status" ), a Maryland corporation. Am. Compl., ECF No. 8 ¶ ¶ 1-2, 5-6. On November 3, 2011, AFGE retained Status to repair and test the elevators at its principal office in Washington, D.C., on " a time and materials basis." Id. ¶ ¶ 3, 9, 13-14. " Upon completion of the work to the elevators," AFGE retained Status " to perform various other tasks on a time and materials basis," including running cables, repairing back-up generators, removing chiller units, and renovating utility rooms. Id. ¶ 15.

A. Alleged Workplace Hostility Because of Race

In late August 2012, AFGE employees began discriminating against Burnett and other Status employees because they were African American. Id. ¶ 16. AFGE had retained Status to run feeder cables--a type of electrical wiring--to " chiller," or cooling, units that were to be installed on the premises. Id. ¶ 17. Because Status was completing the work, " [t]he building's chief engineer, a white man, explained to the project manager, another white man, that the feeder cables should not be added to the renovation[.]" Id. ¶ 18. The project manager replied to the chief engineer " you don't wants [sic] those black people doing that work for you." Id. ¶ 19 (internal quotation marks omitted).

In September 2012, a white woman employed by AFGE confronted Burnett and another African American Status employee and asked " you people are still here?" Id. ¶ 21 (internal quotation marks omitted). Later that month, the same AFGE employee again approached Burnett and asked " you black people are still here?" Id. ¶ 22 (internal quotation marks omitted).

In late September or early October 2012, AFGE employees discussed how management did not like having Status or Burnett on site " due to Burnett's race." Id. ¶ 23. Around the same time, AFGE's project manager told another AFGE employee " [t]hats [sic] what you get with them black people working here," referring to Status' workers. Id. ¶ 24 (internal quotation marks omitted).

Also, in September 2012, the National Secretary/Treasurer of AFGE, an African American man, was assigned to oversee the AFGE offices in Washington, D.C. Id. ¶ 28. The National Secretary/Treasurer called a meeting with the project manager, the chief engineer, and Burnett, where he explained that he was " the project manager's new boss and he did not want to see him going to the National President to complain about his new supervisor." Id. ¶ 29. After the National Secretary/Treasurer left the meeting, the project manager referred to the National Secretary/Treasurer as " one stupid n****." Id. ¶ 30 (internal quotation marks omitted). Approximately two months later, the National Secretary/Treasurer told Burnett and another African American Status employee that Burnett and Status should be " alert" as " [t]hese white people don't like you and are out to get you because you're black. Watch yourself." Id. ¶ 27 (internal quotation marks omitted). He further told Burnett that Burnett " was the only minority contractor [who was permitted] to work at the subject building." Id.

In December 2012, AFGE asked Status to provide an estimate for a project to upgrade AFGE's security system. Id. ¶ 34. Sometime later in December 2012, AFGE representatives notified Burnett that Status had not delivered the upgrade in a timely manner. Id. ¶ 35. According to Plaintiffs, this was " incorrect as the upgrade had not been ordered." Id. During the same meeting, AFGE representatives told Burnett to conduct his operations at night so that he and his " contract employees [would] be kept out of sight" because " all of Status' contract employees were black" and " their status as such scared people." Id. ¶ 36. Other employees of contractors and subcontractors working on the renovation, however, all of whom were white, were visible to the public and to AFGE management. Id. ¶ 37.

B. Contract Interference and Termination

On January 1, 2013, AFGE and Status entered into a commercial agreement for independent contractor services. Id. ¶ 40. Shortly thereafter, AFGE employees " conspired to terminate Status from its work, claiming that Burnett and the chief engineer conspired to steal copper in the disposal of the chiller units," even though industry standards required removal and disposal of the units. Id. ΒΆ 41. AFGE " without cause" terminated its contract with Status and refused to pay Status for work performed or for materials purchased on ...

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