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McNair v. District of Columbia

United States District Court, District of Columbia

September 30, 2016

Saundra M. McNair, Plaintiff,
v.
District of Columbia, et at, Defendants.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge.

         I.BACKGROUND

         From 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 DOES then rescinded her initial accommodation-working a modified schedule-and insisted that she work from 8:30 a.m. to 5:30 p.m. Notwithstanding her employer's action, Plaintiff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.

         In her 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.

         This 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.].[1] For the reasons discussed below, the court grants in part and denies in part Defendant's Motion.

         II. LEGAL STANDARD

         In 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. 1994).

         "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 (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).

         IV. DISCUSSION

         A. Race and Gender Discrimination Claims (Third Claim)

         1.Title VII and DCHRA

         The 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.

         Title 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).

         Courts 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 (D.D.C. 2012).

         Here, 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[2] 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.

         In 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.[3] 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.

         2. Equal Pay Act

         Plaintiffs 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)).

         Similar 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.

         3. Lilly Ledbetter Fair Pay Act

         Plaintiff 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 does ...


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