United States District Court, District of Columbia
Saundra M. McNair, Plaintiff,
District of Columbia, et at, Defendants.
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
March 2009 to October 2013, Plaintiff Saundra M. McNair
worked as an Administrative Law Judge ("ALJ") for
the District of Columbia Office of Employment Services
("DOES"), an agency of Defendant District of
Columbia. Am. Compl., ECF No. 12, ¶¶ 15, 49.
Plaintiff suffers from a variety of physical disabilities. To
accommodate her disabilities, DOES initially allowed her to
work a modified schedule, starting her day at 7:00 a.m. and
ending it at 3:30 p.m. Id. ¶¶ 16-17.
Later, Plaintiff sought further accommodation in the form of
working from home, which DOES denied. DOES then rescinded her
initial accommodation-working a modified schedule-and
insisted that she work from 8:30 a.m. to 5:30 p.m.
Notwithstanding her employer's action, Plaintiff
continued to work the modified schedule. In response, DOES
treated her as absent without leave ("AWOL") for
the hours that she was not physically present in the
workplace. Id. ¶¶ 19, 24-29. Eventually,
Plaintiff accrued nearly 200 hours of AWOL time, leading to
her termination. Id. ¶¶ 43, 49.
Amended Complaint, Plaintiff advances a host of federal and
District of Columbia statutory claims and common law claims,
contesting the legality of her treatment and termination. Her
pleading is a not model of either clarity or brevity.
Plaintiff has advanced no less than twelve separately labeled
"Claims for Relief." Many of these
claims-specifically her Third, Fourth, and Fifth Claims-are
predicated on multiple statutory bases. The court has
attempted to untangle the knot that is Plaintiff s
pleading-with Defendant's commendable assistance-and
understands her Amended Complaint to allege the following
claims: (1) failure to accommodate under the Americans with
Disabilities Act ("ADA") (First Claim); (2)
disability discrimination under the District of Columbia
Human Rights Act ("DCHRA") (Second Claim); (3) race
and gender discrimination under Title VII, the DCHRA, the
Equal Pay Act, and the Lilly Ledbetter Fair Pay Act (Third
Claim); (4) failure to compensate under the Fair Labor
Standards Act (Third Claim); (5) retaliation under the ADA,
Title VII, and the DCHRA (Fourth Claim); (6) retaliation
under the National Labor Relations Act (Fourth Claim); (7)
retaliation under the federal Whistleblowers Protection Act
and the analog of that Act under District of Columbia law
(Fifth Claim); (8) intentional infliction of emotional
distress (Sixth Claim); (9) negligent infliction of emotional
distress (Seventh Claim); (10) negligent supervision (Eighth
Claim); (11) negligence per se (Ninth Claim); (12) defamation
per se (Tenth Claim); (13) civil conspiracy (Eleventh Claim);
and (14) constitutional tort (Twelfth Claim). See
generally Am. Compl.
matter is now before the court on Defendant District of
Columbia's Motion to Dismiss Counts 3 through 11 of the
Amended Complaint. See generally Mot. to Dismiss
Counts 3 through 11 of the Am. Compl., ECF No. 17; Mot. to
Dismiss, Mem. in Support, ECF No. 17-1 [hereinafter
Def.'s Mem.]. For the reasons discussed below, the court
grants in part and denies in part Defendant's Motion.
evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must accept a plaintiffs
factual allegations as true and "construe the complaint
'in favor of the plaintiff, who must be granted the
benefit of all inferences that can be derived from the facts
alleged.'" Hettinga v. United States, 677
F36471, 476 (D.C. Cir. 2012) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)). The court
need not accept as true "a legal conclusion couched as a
factual allegation, " Papasan v. Attain, 478
U.S. 265, 286 (1986), or "inferences . . . unsupported
by the facts set out in the complaint, " Kowal v.
MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
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 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). 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. The factual
allegations in the complaint need not be
"detailed"; however, the Federal Rules demand more
than "an unadorned, the-defendant-unlawfully-harmed-me
accusation." Id. "Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id. If
the facts as alleged fail to establish that a plaintiff has
stated a claim upon which relief can be granted, a court must
grant the defendant's Rule 12(b)(6) motion. See Am.
Chemistry Council, Inc. v. U.S. Dep't of Health &
Human Servs., 922 F.Supp.2d 56, 61 (D.D.C. 2013).
Race and Gender Discrimination Claims (Third Claim)
VII and DCHRA
court begins with Plaintiff s race and gender discrimination
claims under Title VII and the DCHRA. During her time at
DOES, Plaintiff alleges that she "was both sexually
(gender) and racially discriminated against in respect to
hiring, promotion, equal work for equal pay, and the use of
the [reasonable accommodation] system, " in violation of
Title VII and the DCHRA. Am. Compl. ¶75.
VII prohibits an employer from "discriminat[ing] against
any individual . . . because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C.
§ 2000e-2(a)(1). Similarly, the DCHRA makes it illegal
for an employer to discriminate on the basis of "race,
color, religion, national origin, sex, age, marital status,
personal appearance, sexual orientation, gender identity or
expression, family responsibilities, genetic information,
disability, matriculation, or political affiliation."
D.C. Code § 2-1402.11. Under both of these statutes, at
the motion-to-dismiss stage, a plaintiff does not need to
prove a prima facie case of discrimination.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12
(2002); see also Twombly, 550 U.S. at 569-70
(affirming that Swierkiewicz remains good law).
Instead, a plaintiff need only allege that she (1) suffered
an adverse employment action (2) because of her membership in
a protected category. See Hill v. Bd. of Trs. of the
Univ. of the D.C, 146 F.Supp.3d 178, 184 (D.D.C. 2015);
see also Baloch v. Kempthorne, 550F.3d 1191, 1196
(D.C. Cir. 2008); Daka v. Breiner, 711 A.2d 86, 94
(D.C. 1998) (noting that Title VII cases are particularly
persuasive in evaluating DCHRA claims).
in this Circuit "have consistently recognized the ease
with which a plaintiff claiming employment discrimination can
survive ... a motion to dismiss." Fennell v.
AARP, 770 F.Supp.2d 118, 127 (D.D.C. 2011) (quoting
Rouse v. Berry, 680 F.Supp.2d 233, 236 (D.D.C.
2010)) (internal quotation marks omitted). In other words,
"the factual detail required to survive a motion to
dismiss can be quite limited." Hill, 146
F.Supp.3d at 184-85 (citations omitted). Yet, although a
plaintiff asserting a discrimination claim is not required to
plead a prima facie case, she still must plead
sufficient facts to show a plausible entitlement to relief.
Spaeth v. Georgetown Univ., 839 F.Supp.2d 57, 63
Plaintiff has pled a plausible Title VII race discrimination
claim. She alleges that "ALJs and AAJs" that
"were members of a different race and color than
Plaintiff, " "[were] permitted to work from
home" but that she was prohibited from doing so. Am.
Compl. ¶ 19. Although the complaint admittedly lacks in
specifics, Plaintiff has alleged the basic elements of a
race-based discrimination claim-that DOES took an adverse
employment action against her while not taking the same
action against similarly situated employees of a different
race. This is sufficient to put Defendant on basic notice of
her claim against it and to satisfy the pleading standard for
discrimination claims. See Vaughan v. Acheson, Civ.
No. 10-2184 (ABJ), 2011 WL 1515733, at *2 (D.D.C. Apr. 20,
2011) (noting that "the plaintiffs obligation at the
pleading stage is to put the defendant on notice of claims
against it, " which can be accomplished even in a
"complaint [that] is short on detail"). The court
has concluded that Plaintiff has pleaded at least one
racially-motivated adverse employment action-DOES'
refusal to allow her to work from home. Therefore, Plaintiffs
race discrimination claim shall be permitted to proceed,
including to the extent it alleges other adverse actions,
such as failure to promote and termination.
contrast, Plaintiffs claim of gender discrimination does not
satisfy the Swierkiewicz-Twombly pleading standard.
Not once in her Amended Complaint does Plaintiff allege that
DOES specifically treated men differently than they
treated her as a woman. Instead, she avers that she "was
the only employee in her office who was either
denied an [alternative work schedule] or who had their
[alternative work schedule] rescinded/removed." Am.
Compl. ¶ 74 (emphasis added). She further states that
she "was not considered for promotion as similarly
situated ALJ's although she performed the exact same job
duties." Id. ¶ 77. Neither of these
statements indicate that Plaintiff was treated differently
than her male counterparts on account of her gender; rather,
they suggest that, at best, she was treated differently from
all other employees-which presumably includes both men and
women. See, e.g., Greer v. Bd. of Trs. of Univ.
of D.C, 113 F.Supp.3d 297, 310-11 (D.D.C. 2015) (noting
that the "unavailability of details"-including
whether positions went to others outside the protected
class-"does not excuse Plaintiff from alleging, on
information and belief if necessary, the general sequence of
events and basic facts"); see also Belton v.
Palisades Med. Or., 2013 WL 2444046, at *2 (D.N.J. 2013)
(dismissing a Title VII claim where the plaintiff failed to
"allege that non-members of a protected class were
treated more favorably . . . [and did] not allege any facts
that would give rise to an inference of unlawful
discrimination"). The only other allegations that
Plaintiff makes that plausibly could be construed to involve
gender, see Am. Compl. ¶¶ 5, 7, 21, 75,
are conclusory statements that are "not entitled to the
assumption of truth, " Iqbal, 556 U.S. at 679.
Plaintiff thus has not successfully alleged a claim of gender
discrimination under Title VII and the DCHRA.
Equal Pay Act
discrimination claim under the Equal Pay Act
("EPA") likewise must be dismissed. To plead an EPA
violation, a plaintiff must allege 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, 67 F.Supp.3d 345,
360-61 (D.D.C. 2014) (citations omitted). Courts in this
Circuit have recognized that the EPA "overlaps"
with Title VII, and that the two statutes should be
"construed harmoniously with the result that the
principles developed under each . . . [be] applied
interchangeably" with the other. Hardy v.
Bowen, Civ. No. 85-2119, 1986 WL 15710, at *8 (D.D.C.
Nov. 19, 1986) (citing Cnty. of Washington v.
Gunther, 452 U.S. 161 (1981)).
to her "overlapping" Title VII gender
discrimination claim, Plaintiff does not allege that DOES
treated her differently than her male counterparts. As
discussed, the Amended Complaint alleges that she "began
employment at a lower grade and pay scale that other
similarly situated employees, " but fails to allege that
those similarly situated employees were "members of the
opposite sex" as required under even the liberal
pleading standard applicable here. Stated simply, Plaintiff
fails to allege that she was "paid at a lower wage"
than men in her office for "doing substantially equal
work" and thus her claim must be dismissed.
Cornish, 67 F.Supp.3d at 360-61.
Lilly Ledbetter Fair Pay Act
also alleges that "she was both sexually (gender) and
racially discriminated against ... in violation of . . . the
Lilly Ledbetter Fair Pay Act of 2009." Am. Compl. ¶
75. The Lilly Ledbetter Fair Pay Act, however, does not grant
plaintiffs a stand-alone cause of action. Rather, it
"amend[s] [Title VII and the ADA] to clarify that a
discriminatory compensation decision . . . occurs each time
compensation is paid pursuant to the [discriminatory
decision]." Pub. L. No. 111-2, 123 Stat. 5 (2009). The
Act essentially functions to extend the statute of
limitations for discriminatory compensation claims and thus