United States District Court, D. Columbia.
[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 ...