United States District Court, D. Columbia.
May 28, 2015
LINDA CLAY, Plaintiff,
HOWARD UNIVERSITY et al., Defendants
[Copyrighted Material Omitted]
LINDA CLAY, Plaintiff: Sharon Yvette Eubanks, Catharine E.
Edwards, EDWARDS KIRBY, LLP, Washington, DC.
HOWARD UNIVERSITY, Defendant: Lydia Auzoux, LEAD ATTORNEY,
HOWARD UNIVERSITY, Washington, DC; Alan S. Block, Dawn Star
Singleton, BONNER KIERNAN TREBACH & CROCIATA, LLP,
JAMES JONES, Defendant: Amanda C. Dupree, Joyce E. Taber,
LEAD ATTORNEYS, MORGAN, LEWIS & BOCKIUS LLP, Washington, DC.
Linda Clay asserts statutory and tort claims against her
former employer and supervisor, all related to the end of her
employment in the Human Resources department at Howard
University. Defendants Howard University and James Jones
moved to dismiss Clay's complaint, and Clay moved orally
to amend the complaint at argument on the motions to dismiss
on February 11, 2015. In an order (" Order," ECF
No. 21) and accompanying opinion (" Opinion," ECF
No. 20) dated March 11, 2015 the Court granted
Plaintiff's oral motion for leave to amend and granted
Jones' motion to dismiss Count III of the Complaint,
which alleged a violation of the D.C. Human Rights Act
(" DCHRA" ) against him individually. The Court
denied without prejudice the balance of Defendants'
motions with permission to renew those motions in response to
Plaintiff's amended complaint. Plaintiff filed an amended
complaint, and the Defendants' renewed motions to dismiss
are now before the court. Because Plaintiff has not alleged a
wrongful discharge in violation of public policy but has
adequately alleged violations of Title VII, the DCHRA, and
the Equal Pay Act, the Court GRANTS Jones' motion in full
and GRANTS IN PART and DENIES IN PART Howard's motion.
factual landscape of Plaintiff's complaint is set forth
in the court's March 11 opinion. The court here notes
particular allegations which have changed from the original
complaint. Plaintiff now alleges that she " refused to
ignore falsified and fraudulent documents that came into her
possession, when those documents were, and the concealment of
such information would have been, a violation of federal and
D.C. law," and cites specific statutes she believes may
have been violated. (Am. Compl. ¶ ¶ 4, 29-30). She
now specifically alleges that she was " concerned about
her own criminal liability" as an aider and abettor of
the suspected fraud if she did not report her suspicions.
(Am. Compl. ¶ 61). She notes that Howard University,
through its President and Directors, is required to furnish
an annual financial report to Congress, and that she believed
the suspected fraud might impact the truthfulness of that
annual report. (Am. Compl. ¶ ¶ 18, 65).
most significant defect in Plaintiff's first complaint
was the entanglement of her Title VII and DCHRA claims with
her wrongful discharge claim. (Opinion at 8). In her Amended
Complaint, Plaintiff has re-pleaded the two sets of claims to
specify that they cover separate conduct that proceeded in
parallel. The wrongful discharge claim relates only to the
decision to remove Plaintiff " from her Senior Benefits
Analyst position under the false pretense of a [Reduction in
Force]...and constructively demoting her to the HR Generalist
position." (Am. Compl. ¶ 66). The gender
discrimination claim brought under Title VII and the DCHRA
now purports to relate to other conduct: " Throughout
her employment, Ms. Clay and other females were held to
higher standards, treated with less respect, and were
promoted less quickly and often than their male
(Am. Compl. ¶ 71). Howard's decision not to rehire
Plaintiff for her former position is now alleged to be, in
the alternative, gender discrimination or retaliation for
Plaintiff's EEOC charge. (Am. Compl. ¶ ¶ 72,
77, 93, 96).
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292
F.3d 235, 242, 352 U.S. App.D.C. 4 (D.C. Cir. 2002). "
To 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (internal quotation marks and citation omitted).
" The plausibility standard is not akin to a
'probability requirement,' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id. (citation omitted). Although a
plaintiff may survive a Rule 12(b)(6) motion even where
" recovery is very remote and unlikely[,]" the
facts alleged in the complaint " must be enough to raise
a right to relief above the speculative level[.]"
Bell A. Corp. v. Twombly, 550 U.S. 544, 555-56, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks
and citation omitted). Moreover, a pleading must offer more
than " labels and conclusions" or a "
formulaic recitation of the elements of a cause of
action[.]" Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). If the facts as alleged,
which must be taken as true, fail to establish that a
plaintiff has stated a claim upon which relief can be
granted, the Rule 12(b)(6) motion must be granted. See,
e.g., Am. Chemistry Council, Inc. v. U.S. Dep't
of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C.
2013). In testing the complaint's sufficiency, a 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, 326 U.S. App.D.C. 67 (D.C. Cir.
addition to the substantive arguments addressed below,
Defendant Jones raises two preliminary procedural arguments.
Jones first argues that the court should not consider
Plaintiff's Amended Complaint because Plaintiff did not
file a written motion for leave to amend. (Jones Renewed Mot.
at 5-7). Jones correctly notes that it would have been within
the court's discretion to deny Plaintiff the opportunity
to amend because the motion was belated and was not made in
writing. Belizan v. Hershon, 434 F.3d 579, 582, 369
U.S. App.D.C. 160 (D.C. Cir. 2006); Benoit v. U.S.
Dep't of Agriculture, 608 F.3d 17, 21, 391 U.S.
App.D.C. 95 (D.C. Cir. 2010). In both of these cases the
plaintiff made only a conditional statement that amendment
could cure perceived defects; in this case, Plaintiff
expressly requested " leave to amend" at oral
argument. (Mot. Hr'g Tr. 60:18-61:1 Feb. 11, 2015). That
the court could have ruled one way does not preclude
the court from exercising its discretion in ruling to the
contrary. The distinct and precise nature of Plaintiff's
oral request for relief distinguishes it from the instances
where district judges permissibly declined to grant leave to
also argues that some of the amended allegations are so
inconsistent with the original allegations that the court
should not afford them the presumption of truth. (Jones
Renewed Mot. 8-10). The court does have the authority to
strike obviously " false and sham" allegations that
have changed from the complaint to the amended complaint.
See, e.g., Bradley v. Chiron Corp., 136
F.3d 1317, 1324-25 (Fed. Cir. 1998) (district court did not
discretion in striking allegations from amended complaint
which directly contradicted allegations from initial
complaint). " Reconcilable small variations are
acceptable," but direct contradiction is not.
Hourani v. Mirtchev, 943 F.Supp.2d 159, 171 (D.D.C.
2013). However, Jones' argument that the changes in
Plaintiff's amended complaint rise to the level of direct
contradiction overstates the changes Plaintiff has made.
Jones argues that " alleging a hypothetical possibility
of 'potential' fraud is not the same now [sic]
alleging that [Plaintiff] 'knew' there was
fraud," and goes on to cite to particular changes in the
Amended Complaint which reflect Plaintiff's increased
certainty that there was indeed a fraud being perpetrated.
(Jones Renewed Reply at 11). This change falls shy of the 180
degree change in the allegations by the Plaintiffs in
Bradley, 136 F.3d at 1325-26 (adding a new
allegation in a contract dispute that plaintiff did not
receive explanation of the contract before signing it), and
Hourani, 943 F.Supp.2d at 171-72 (excising
references to a defendant as a government agent) and does not
fundamentally change the nature of Plaintiff's
dealt with these preliminary matters, the court proceeds to
determine whether Plaintiff's Amended Complaint
adequately states any claims for relief.
Count I: Wrongful Discharge in Violation of Public
tort of wrongful discharge in violation of public policy is a
limited exception to the general rule in the District of
Columbia that an at-will employee may be discharged " at
any time and for any reason, or for no reason at all."
Adams v. George W. Cochran & Co., 597 A.2d 28, 30
(D.C. 1991). Though the cause of action was initially limited
only to discharge for refusal to violate the law, the D.C.
Court of Appeals affirmed in Carl v. Children's
Hosp., 702 A.2d 159, 160 (D.C. 1997) that the exception
was subject to further expansion. To state a claim for
wrongful discharge in violation of public policy, the
plaintiff must point to " some identifiable policy that
has been 'officially declared' in a statute or
municipal regulation, or in the Constitution," and a
" close fit between" the policy " and the
conduct at issue in the allegedly wrongful termination."
Davis v. Cmty. Alternatives of Washington, D.C.,
Inc., 74 A.3d 707, 709-10 (D.C. 2013) (citing
Carl and Fingerhut v. Children's Nat'l
Med. Ctr., 738 A.2d 799, 803-04 (D.C. 1999)).
court invited Plaintiff to attempt to disentangle her claims
under Title VII and the DCHRA from her wrongful discharge
claim because, as originally pled, the allegations were too
intertwined to evaluate 1) whether Plaintiff was terminated
in violation of a public policy firmly anchored in the
Constitution or statute, Davis, 74 A.3d at 709-10,
and 2) whether extension of the Carl exception was
appropriate given the apparent overlap with a pre-existing
statutory cause of action. Lockhart v. Coastal Int'l
Sec., Inc., 5 F.Supp.3d 101, 106 (D.D.C. 2013);
Emory v. United Air Lines, Inc., 821 F.Supp.2d 200,
239 (D.D.C. 2011). The allegations are now sufficiently
disentangled to evaluate their sufficiency.
is limited guidance from the D.C. Court of Appeals on whether
termination in retaliation for disclosing possible fraud
states a claim for wrongful discharge. Applying
Carl, the D.C. Court of Appeals has found a valid
claim for wrongful discharge in violation of public policy
where a cook at a retirement home was fired for attempting to
prevent a co-worker from contaminating food to be served in
the home. Washington v. Guest Servs., Inc., 718 A.2d
1071, 1080 (D.C. 1998). Similarly, the D.C. Circuit Court
agreed that a plaintiff could defeat summary judgment on
that the plaintiff was terminated for threatening to report
unsafe handling and storage of pharmaceutical drugs, given
the extensive regulations concerning food and drug safety.
Liberatore v. Melville Corp., 168 F.3d 1326, 1331,
335 U.S. App.D.C. 26 (D.C. Cir. 1999). In both of these
cases, matters of human safety were at stake, as evidenced by
the comprehensive and specific regulations governing both
workplaces. The D.C. Court of Appeals has also upheld a
wrongful discharge claim where a director of security was
terminated after cooperating with the FBI and Metropolitan
Police Department in reporting a bribe. Fingerhut,
738 A.2d at 806-07. In that case, the court relied on the
existence of particular laws and regulations prohibiting
bribery and requiring police officers to actively investigate
suspected illegal activity. Id.
fourth case, the court suggested it would find a viable claim
in a former law firm associate's reporting of "
seriously" dishonest conduct to her superiors.
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715
A.2d 873, 885 (D.C. 1998) (" If the plaintiff had
alleged that she was discharged solely, or perhaps even
primarily, for reporting the alteration of 'as filed'
documents, and for no other reason, we would have a different
case" ). Key to the court's discussion in
Wallace was the fact that the applicable rules of
professional conduct required the plaintiff to report this
" seriously" dishonest conduct, although the Court
ultimately ruled that she could not prevail in a wrongful
discharge claim because she also reported conduct which she
was not obligated to report (and because the complaint
implied there were other reasons for her termination beyond
the whistleblowing). Id. Other courts of this
District have looked for the same reporting mandate.
Myers v. Alutiiq Int'l Solutions, LLC, 811
F.Supp.2d 261, 266-267 (D.D.C. 2011) held that allegations
that plaintiff was terminated after reporting improper
conflicts of interest in government contracting sufficed to
state claims grounded in the public policy of encouraging
reporting of problems in federal programs. The court pointed
to 5 U.S.C. § 2302 and the Federal Acquisition
Regulations which " reflect a clear public policy of
encouraging government employees to come forward and report
possible problems in federal programs" and prohibit
conflicts of interest. Id. On the other hand, in
Lurie v. Mid-Atl. Permanente Med. Grp., P.C., 729
F.Supp.2d 304, 326 (D.D.C. 2010) the court held that the
plaintiff failed to prove a wrongful discharge claim where
none of the statutes or regulations disclosures he actually
made and b) provided any sort of whistleblower protection.
correctly notes that there have been cases in which courts
sustained a claim for wrongful discharge even in the absence
of a mandatory reporting requirement or narrowly focused
regulatory regime. (Pl. Renewed Howard Opp'n at 9
(collecting cases)). The plaintiff in Vreven v.
AARP, 604 F.Supp.2d 9, 14 (D.D.C. 2009), for example,
was held to have stated a claim by alleging she was
terminated after objecting to her employer's " abuse
of its structure and tax-exempt status." And one court
has gone so far as to explicitly reject the notion that the
plaintiff must be subject to a mandatory disclosure regime in
order to state a claim and sustained a claim for wrongful
discharge in light of the policy " of prohibiting
tax-exempt organizations...from using public funds for
lobbying purposes." Riggs v. Home Builders
Inst., 203 F.Supp.2d 1, 21 (D.D.C. 2002). The plaintiff
in Riggs alleged that he was terminated after
refusing to engage in activities he believed violated section
501(c)(3). 203 F.Supp.2d at 4. The trend, however,
following the Supreme Court's restatement of pleading
standards in Twombly and Iqbal, is towards
requiring a closer fit between the public policy and the
whistleblowing. Compare Ware v. Nicklin Assocs.,
Inc., 580 F.Supp.2d 158, 165-66 to permit claim that
plaintiff had knowledge of a fraudulent billing and invoicing
scheme and was terminated for that knowledge) with
Mpoy v. Fenty, 870 F.Supp.2d 173, 184-85 (D.D.C.
2012) (special education teacher alleging discharge after
disclosing instructions from principal to falsify test scores
had not identified clear mandate of public policy)
and Leyden v. Am. Accreditation Healthcare
Comm'n, No. 14-cv-1118, 83 F.Supp.3d 241, 2015 WL
1245976, at *5 (D.D.C. Mar. 18, 2015) (plaintiff alleging
conflicts of interest at healthcare accreditation
organization failed to identify public policy specifically
prohibiting the conduct she internally reported).
Judge Cooper of this District recently summarized, the "
common denominator" in viable wrongful discharge claims
is " the existence of specific laws or
regulations that clearly reflect a policy prohibiting the
activity about which the employee complained, whether or not
the employer actually violated the law or regulation."
Leyden, 2015 WL 1245976, at *5 (emphasis added).
Plaintiff argues that she has identified that common
denominator in her case: laws which criminalize fraud.
However, the general public policy against fraud is not
nearly as specific as the policies at issue in other viable
wrongful discharge claims. To rest a claim of wrongful
discharge on such an expansive public policy would enable the
exception to swallow the rule. Therefore, the court dismisses
Count I for failure to state a claim.
Counts II & III: Gender Discrimination in Violation of Title
VII and the DCHRA
plead a viable discrimination claim under Title VII, the
Plaintiff must allege that she 1) " suffered an adverse
employment action" 2) because of her sex. Winston v.
Clough, 712 F.Supp.2d 1, 10 (D.D.C. 2010); Ali v.
District of Columbia, 697 F.Supp.2d 88, 91-92 (D.D.C.
2010). Howard argues that Clay has failed to do
argues that reassignment, without " any decrease in
compensation, job title, level of responsibility, or
opportunity for promotion," does not constitute an
adverse action. (Howard Mot. at 11 (citing Holland v.
Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007))).
Howard further argues that speculation that the reassignment
left Plaintiff vulnerable to a reduction in force is
similarly not actionable because it is just that --
speculation. Id.  Howard is correct that "
purely subjective injuries, such as dissatisfaction with a
reassignment," are not adverse actions. Forkkio v.
Powell, 306 F.3d 1127, 1130-31, 353 U.S. App.D.C. 301
(D.C. Cir. 2002).
as Plaintiff notes, there are circumstances under which even
so-called lateral transfers may be adverse actions for the
purposes of Title VII. As a matter of law, 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 a significant
change in benefits." Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d
633 (1998) (emphasis added); Stewart v. Ashcroft,
352 F.3d 422, 426, 359 U.S. App.D.C. 139 (D.C. Cir. 2003).
Howard essentially ignores allegations in the Amended
Complaint that this lateral transfer did in fact involve
" reassignment with significantly different
Plaintiff alleges that her new position " had no defined
responsibilities, and certainly did not have responsibilities
commensurate with her previous position." (Am. Compl.
¶ 48); see Holcomb v. Powell, 433 F.3d
889, 903, 369 U.S. App.D.C. 122 (D.C. Cir. 2006) (plaintiff
who " mired in professional purgatory for over two
years" suffered adverse employment action). She also
alleges that the new position was " essentially a
'part-time' position" which " required
several areas of knowledge that Ms. Clay did not possess and
for which she was not offered any training." (Am. Compl.
¶ 49). Moreover, Plaintiff's allegation that she was
falsely told her former position was eliminated due to a
reduction in force certainly lends plausibility to the notion
that her reassignment was something more than innocuous
restructuring. (Am. Compl. ¶ 52). Given these
allegations, Plaintiff has adequately alleged an adverse
action linked to her gender.
Count IV: Violation of the Equal Pay Act
Federal Equal Pay Act (" EPA" ) prohibits an
employer from discriminating " between employees on the
basis of sex by paying wages to employees... at a rate less
than the rate at which he pays wages to employees of the
opposite sex...for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions."
29 U.S.C. § 206(d)(1). To adequately plead an EPA
violation, Plaintiff must allege facts supporting the
inference that: 1) she was " doing substantially equal
work on the job, the performance of which required
substantially equal skill, effort, and responsibility as the
jobs held by members of the opposite sex; " 2) "
the job was performed under similar working conditions;
" and 3) she was " paid at a lower wage than
members of the opposite sex." Cornish v. District of
Columbia, No. 13-cv-1140, 67 F.Supp.3d 345, 2014 WL
583637, at *10 (D.D.C. Sept. 16, 2014).
court noted in its previous opinion, there is scant case law
addressing the use of a non-immediate successor as comparator
for salary purposes, and the issue is intensely
fact-specific. (Opinion at 13 (citing Broadus v. O.K.
Indus., Inc., 226 F.3d 937, 942 (8th Cir. 2000) (given
the circumstances specific to the complaint, plaintiff could
use a non-immediate successor in her position as wage
comparator)). Based on statements by Plaintiff at oral
argument that, in addition to Mr. Jackson, other similarly
situated men were paid more than she, Plaintiff was given
leave to amend her complaint to include this allegation and
any other factual allegations supporting the use of a
non-immediate comparator. She now alleges on information and
belief that " other similarly situated males at Howard
University also received more pay for the substantially
similar work as Ms. Clay." (Am. Compl. ¶ 84). The
complaint also specifically invokes the applicability of the
Broadus rule by alleging that Jackson " was
hired to do the same work as Ms. Clay in the position of
Senior Benefits Analyst, and was paid significantly
more." (Am. Compl. ¶ 84). Howard, perhaps expecting
more detail, argues that Plaintiff " did not follow the
Court's Order" to " add facts to support use of
a non-immediate comparator as well as other examples of
males" paid more than she. (Howard Renewed Mot. at 4).
The court finds however, that the allegations in the Amended
Complaint are sufficient to support the inference that
Plaintiff performed equal work for unequal pay, and
Howard's motion to dismiss as to this count will be
Count V: Retaliation in Violation of Title VII
sustain a claim for retaliation in violation of Title VII, 42
U.S.C. § 2000e-3(a),
Plaintiff must show that Howard " took materially
adverse action against [her] because [she] participated in
protected activity." Bridgeforth v. Jewell, 721
F.3d 661, 663, 406 U.S. App.D.C. 29 (D.C. Cir. 2013);
Amiri v. Securitas Sec. Servs. USA, Inc., 35
F.Supp.3d 41, 46 (D.D.C. 2014). In the context of rehiring,
Plaintiff must also show that she " applied for an
available job and was qualified for that position."
Amiri, 35 F.Supp.3d at 46.
argues both that Plaintiff has failed to plead an adverse
action, ( e.g., Howard Mot. at 12 ("
Plaintiff's claim of adverse employment action in the
form of Howard's hiring of Mr. Jackson at a higher salary
should not be considered anything more than a conclusory
allegation" )), and that Plaintiff has not adequately
alleged the necessary causal link, ( e.g. id.
(" Plaintiff has proffered no facts other than...that
she filed an EEOC claim about which Howard was aware, and
that a male was selected at a higher salary after her former
position was advertised for a second time" )). Neither
argument has merit at this stage of the litigation.
characterization of the alleged adverse action as the "
hiring of Mr. Jackson at a higher salary" misses the
mark. The complained-of action is Howard's decision
not to hire Plaintiff for her former position, a
decision which plainly constitutes an adverse employment
action for the purposes of 42 U.S.C. § 2000e-3(a).
Nat'l Ry. Passenger Corp. v. Morgan, 536 U.S.
101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (in
identifying discrete acts of discrimination for statute of
limitations purposes, " failure to promote, denial of
transfer, or refusal to hire are easy to
identify" ) (emphasis added); see also
Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647,
653-54, 356 U.S. App.D.C. 109 (D.C. Cir. 2003) (assuming that
decision to offer position to external candidate instead of
plaintiff, an internal candidate, constituted adverse
action); Cones v. Shalala, 199 F.3d 512, 521, 339
U.S. App.D.C. 299 (D.C. Cir. 2000) (" unable to dispute
that its refusal to compete the position adversely affected
Cones, HHS cannot legitimately contend that it took no
adverse personnel action against him" ); Byrd v.
District of Columbia, 807 F.Supp.2d 37, 70 (D.D.C. 2011)
(refusal to renew or extend term employment constituted
adverse employment action); Kangethe v. District of
Columbia, 953 F.Supp.2d 194, 200 & n.2 (D.D.C. 2013)
(refusal to promote is adverse action). The case Howard cites
as support for this argument, Gladden v. Solis, did
not address whether the complaint adequately alleged an
adverse action, but rather whether or not the causal nexus
had been adequately pleaded. 926 F.Supp.2d 147, 152 (D.D.C.
suggestion that, since Clay was invited to interview for the
position, her non-hiring was not retaliatory, is not
persuasive on a motion to dismiss. (Howard Mot. at 12). While
the fact that Plaintiff did interview for the position may
constitute evidence of a legitimate reason for
Plaintiff's non-selection, the mere fact that it took
place should not, at this stage, preclude Plaintiff from
proceeding. To hold otherwise would enable employers to
insulate themselves from retaliation claims simply by pro
forma interviewing any candidate who had engaged in protected
Howard's argument that there is no causal link between
the decision not to re-hire Plaintiff and Plaintiff's
protected activity also fails. Plaintiff filed
her first EEOC charge on November 28, 2012. (Am. Compl.
¶ 8). Jackson received the job on January 14, 2013, less
than two months later. ( Id. at ¶ 93). Temporal
proximity alone can suffice to infer a causal link.
Cones, 199 F.3d at 521. The proximity must be "
very close." Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).
Many courts view Breeden as setting a general outer
limit of a three-month gap between the protected activity and
the retaliation. See Lowe v. District of
Columbia, 669 F.Supp.2d 18, 28 (D.D.C. 2009) (collecting
cases). The period of less than two months at issue here
comfortably falls within that window.
adequately alleges that Howard discriminated against women
and paid Plaintiff less than at least one male counterpart.
Plaintiff also adequately alleges that Howard retaliated
against her after she filed an EEOC complaint against Howard.
Accordingly, Howard's motion is DENIED as it relates to
Counts II -- V of the Amended Complaint. However, Plaintiff
fails to adequately allege wrongful discharge in violation of
public policy. The Court therefore GRANTS the portion of
Howard's motion seeking to dismiss Count I and GRANTS
Jones' motion to dismiss in full.
corresponding order will issue separately.
reasons set forth in the accompanying Memorandum Opinion, it
that Defendant Jones' renewed motion (ECF No. 24) to
dismiss the amended complaint (ECF No. 22) is
GRANTED; and it is further
that all claims against Jones are dismissed without
prejudice; and it is further
that Defendant Howard University's motion (ECF No. 23) to
dismiss the amended complaint is GRANTED IN PART as to Count
I of the amended complaint and DENIED IN PART as to Counts II
-- V of the amended complaint; and it is further
that Count I of the amended complaint is dismissed without
prejudice; and it is further
that Howard University shall respond to the amended complaint
no later than June 11, 2015; and it is further
that the parties shall appear at a Scheduling Conference at
2:00 p.m. on July 7, 2015. No later than July 2, 2015 the
parties shall file their Report of the Parties' Planning
Meeting, pursuant to Rule 26(f) of the Federal Rules of Civil
Procedure and Local Civil Rule 16.3. In addition to the
requirements under the Federal and Local Rules, the
parties' report shall contain a succinct summary of the
case and the statutory basis for all causes of action and
defenses. Counsel who attend the Scheduling Conference must
be sufficiently familiar with the case to answer any
questions which arise and hold the authority to make
stipulations and admissions about all matters that can
reasonably be anticipated for discussion. Parties are
encouraged to attend.
5 U.S.C. § 2302(b)(8)(B) prohibits
retaliation by federal employers against employees who report
suspected illegal activity.
Both Riggs and Vreven
rely on a public policy protecting the integrity of taxpayer
money. Plaintiff has attempted to trigger that policy by
alleging that Howard receives annual appropriations of over
$200 million from the federal government and that Howard is
required to provide Congress with financial reports. (Am.
Compl. ¶ ¶ 15-18). The court declines to sweep so
broadly and finds the logic of Myers, 811 F.Supp.2d
at 266-67, to be more persuasive than that of Riggs,
203 F.Supp.2d at 21, and Vreven, 604 F.Supp.2d at
14. The public policy implicated in Myers also
related to integrity in taxpayer money, but was specifically
based in laws and regulations protecting whistleblowers who
revealed conduct threatening that integrity. This nexus
between specific policy and the conduct at issue is what the
Carl court required. 702 A.2d at 163-165 (rejecting
" expansive" and " nebulous" open
standard and requiring a " close fit between the
policy thus declared and the conduct at issue in the
allegedly wrongful termination." ) (Terry, J.,
concurring). Plaintiff similarly argues that she was
terminated in violation of the public policy that favors
" the prevention of corruption in government contracting
-- and the necessity of allowing public officials to report
corruption without fear of reprisal." (Pl. Renewed Jones
Opp'n at 22 (citing Holman v. Williams, 436
F.Supp.2d 68, 79 (D.D.C. 2006)). That policy is also
inapplicable to the facts here. Holman involved
allegations that a D.C. government employee was fired for
threatening to publicly accuse members of the D.C.
administration of violating anti-kickback laws. Id.
The laws in question were not generally applicable anti-fraud
statutes, but rather specific laws aimed at preventing a
particular type of government corruption.
Because the court determines that was no
sufficiently explicit and specific public policy implicated
by Defendants' conduct, it does not reach Jones'
additional arguments that he cannot be held individually
liable for the tort of wrongful discharge and that
Plaintiff's voluntary resignation was not under such
intolerable conditions as to render it a constructive
Title VII and DCHRA claims are analyzed
under the same legal standard. Slate v. Pub. Defender
Serv. for D.C., 31 F.Supp.3d 277, 290 n.3 (D.D.C. 2014);
Carpenter v. Fed. Nat'l Mortg. Ass'n, 165
F.3d 69, 72, 334 U.S. App.D.C. 124 (D.C. Cir. 1999).
Accordingly, Counts II and III rise or fall together.
Both Plaintiff and Howard have
elected to rest their arguments regarding Counts II and
III on the initial motion to dismiss papers. Those papers
focused on whether Plaintiff's reassignment was
sufficiently adverse to be actionable under Title VII.
(Howard Mot. at 11; Pl. Howard Opp'n at 16). The Court
notes that the Title VII/DCHRA claims has shifted since those
papers were filed. Howard's motion to dismiss the gender
discrimination claims addressed gender discrimination in the
form of a constructive demotion under the false pretense of a
RIF. Although Plaintiff's renewed opposition briefs aver
that there is no overlap, the Amended Complaint still, to a
more limited extent, alleges that Plaintiff's decision to
resign was " due to the discrimination, hostile work
environment, and retaliation she experienced." (Am.
Compl. ¶ 54). To the extent the parties are assuming
that the alleged constructive demotion continues to form the
basis (in part) of Plaintiff's Title VII and DCHRA
claims, the Court joins in that assumption for the purpose of
determining whether those claims are adequately pled. Howard
has not moved for dismissal on the basis that Plaintiff's
amended allegations concerning disparate treatment of women
and a hostile work environment are inadequately pled.
Accordingly, the court does not address those issues and
addresses only the question that was briefed: whether
Plaintiff's reassignment constituted an adverse
The citation to Holland concerning
" speculation about the future adverse consequences of a
reassignment" (Howard Mot. at 11) addressed whether
plaintiff there had presented enough evidence to defeat a
motion for summary judgment, 487 F.3d at 219, and is
inapposite to the present motion to dismiss
Howard and Plaintiff rest on the papers
from the original Motion to Dismiss as it relates to