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Easaw v. Newport

United States District Court, District of Columbia

May 12, 2017

AUDREY EASAW, Plaintiff,
DEBBIE NEWPORT, et al., Defendants.


          BERYL A. HOWELL Chief Judge

         The plaintiff, Audrey Easaw, a former employee of the American Association of Retired Persons (“AARP”), brings this action against defendants Debbie Newport and Calade Partners, LLC (collectively, the “defendants”), alleging a violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §§ 2-1401 et seq., as well as tortious interference with employment. Compl. ¶¶ 4, 28-32, 33-36, ECF No. 1-1.[1] After Ms. Newport's company, Calade Partners, was hired in 2015 by AARP to provide consulting services, the plaintiff's job description was re-written and the plaintiff's employment with AARP was terminated, effective July 8, 2016. Id. ¶¶ 5, 10, 22-25. The plaintiff alleges that defendants were responsible for her termination and discriminated against her on the basis of her race. Pending before the Court is the defendants' motion to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally Defs.' Mot. Dismiss, ECF No. 5. For the reasons set forth below, the defendants' motion is granted in part and denied in part.

         I. BACKGROUND

         The plaintiff, an African-American female, started her employment with AARP in 2011 as a Corporate Engagement Management Director. Id. ¶ 6. For most of her time at AARP, the plaintiff reported to Ed O'Day, a Senior Vice President in Membership and Integrated Value. Id. In 2015, AARP retained defendants Ms. Newport, who is the co-founder and partner of Calade Partners, to provide consulting services. Id. ¶¶ 5, 10. At some point, the plaintiff's primary responsibilities were shifted to another director, a Caucasian male, who worked closely with a “new EVP Martha Boudreau.” Id. ¶ 13. In August 2015, the plaintiff began working to start up “the AARP Experience, ” a new department within AARP. Id. That same month, the plaintiff began working with defendant Ms. Newport, who was “brought in to help ‘stand up' the AARP Experience.” Id. ¶ 14.

         According to the complaint, shortly after they began working together, Ms. Newport “developed a habit of speaking to [plaintiff] in an abrasive and disrespectful tone.” Id. ¶ 15. Nonetheless, the plaintiff was able to have a “very professional conversation with Ms. Newport about her ‘tone'” and explained her concerns about Ms. Newport's management approach “and that she should speak to [plaintiff] in a respectful manner.” Id. Ms. Newport responded by saying “I get it.” Id. The plaintiff alleges that, at some unspecified time, she “raised concerns about Ms. Newport's approach as a consultant to Mr. O'Day, ” then an interim SVP for AARP Experience, who indicated that Ms. Boudreau had “given complete authority” to Ms. Newport “for oversight of standing up the AARP experience.” Id.

         In or around October 2015, the plaintiff expressed interest in one of the employment opportunities within AARP Experience, particularly Vice President for “Governance and Strategy, ” id. ¶ 16, although no indication is given whether the plaintiff actually applied for this position. Around the same time, Ms. Newport recommended Jim Pendergast for another position of Senior Vice President for AARP Experience, and he was subsequently hired and started his employment with AARP on March 28, 2016. Id. ¶ 17. In January 2016, Mr. O'Day announced that Michelle Musgrove, an African-American female, had been hired to serve as Vice President for Governance and Strategy of AARP Experience, “since she had been doing the work, ” id. ¶¶ 14, 19, the same position in which the plaintiff had expressed interest.

         From January through March 2016, the plaintiff “noticed delayed or no responses to emails/requests sent to” Ms. Newport and Ms. Musgrove, as well as “her exclusion from meetings.” Id. ¶ 20. In mid-March 2016, Mr. O'Day informed the plaintiff that AARP was rewriting the job description for her position as AARP Experience Management Director, and “if she was not already doing 70% of the work in the job description, she would be displaced.” Id. ¶ 22. “To [the plaintiff's] knowledge, no other full-time employee within the AARP Experience had their position description rewritten.” Id.

         In mid-March 2016, Mr. O'Day sent the plaintiff a draft of the new job description. Id. ¶ 23. After reviewing the job description, the plaintiff informed Mr. O'Day that she believed she was doing at least 70% of the work outlined in the description. Id. Mr. O'Day told the plaintiff that the job description was not finalized and that he was taking an interim position in a different department at AARP, but would “stay in touch throughout ‘the process.'” Id. He advised the plaintiff to speak to Mr. Pendergast “as soon as possible.” Id.

         The plaintiff alleges that she had “initial discussions with Mr. Pendergast which led her to believe that she was still being considered as a viable member of the team.” Id. ¶ 24. According to the complaint, however, Mr. Pendergast then spoke to defendant Ms. Newport about the plaintiff and, “as a result, a decision was made that [the plaintiff] would not continue employment with AARP.” Id. On May 16, 2016, the plaintiff was informed by Mr. O'Day that her employment was being terminated with an effective date of July 8, 2016. Id. ¶ 25.


         A. Federal Rule of Civil Procedure 12(b)(6)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Wood v. Moss, 134 S.Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than "'merely consistent with' a defendant's liability, " but “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although "detailed factual allegations" are not required to withstand a Rule 12(b)(6) motion, "more than labels and conclusions" or "formulaic recitation of the elements of a cause of action" are needed for "'grounds'" of "'entitle[ment] to relief, '" Twombly, 550 U.S. at 555 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 46-47 (1957)), and "nudge[ ] [the] claims across the line from conceivable to plausible, " id. at 570. Thus, "a complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact, and construe all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555; Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) ("We assume the truth of all well-pleaded factual allegations and construe reasonable inferences from those allegations in a plaintiff's favor." (citing Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014))). The Court "need not, however, 'accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the facts set out in the complaint.'" Nurriddin, 818 F.3d at 756 (alteration in original) (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

         B. Motions to Dismiss Employment Discrimination Claims Generally

         The Supreme Court has instructed that “the precise requirements of a prima facie case can vary depending on the context” and “should not be transposed into a rigid pleading standard for discrimination cases.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). In view of this “emphasis on flexibility, ” the D.C. Circuit has adopted, for claims asserted under various anti-discrimination statutes, a “general version of the prima facie case requirement: ‘the plaintiff must establish that (1) she [or he] is a member of a protected class; (2) she [or he] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.'” Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)); see also Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005); Krodel v. Young, 748 F.2d 701, 705 (D.C. Cir. 1984) (“an individual plaintiff claiming disparate treatment must first make out a prima facie case -- i.e., must demonstrate sufficient facts to create a reasonable inference that race, sex or age was a factor in the employment decision at issue.”). The burden of showing a prima facie case at the pleading stage “is not onerous.” Id.; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

         Absent direct evidence of discrimination, a plaintiff may prove discrimination through circumstantial evidence using the familiar three-part burden-shifting framework of McDonnell Douglas Corp. v. Green (“McDonnell Douglas”), 411 U.S. 792, 792-93 (1973), which generally applies at summary judgment, see, e.g., id. (applying framework to Title VII claim); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010) (applying framework to an ADEA claim); Krodel v. Young, 748 F.2d at 705 (same). Under McDonnell Douglas, the plaintiff has the initial burden of production to establish a prima facie case of discrimination; if he does, then the employer must articulate a legitimate, non-discriminatory reason for its action; and if it does, then the plaintiff must receive an opportunity to show that the employer's reason was a pretextual cover for discrimination. McDonnell Douglas, 411 U.S. at 802-05; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

         At the motion to dismiss stage, however, an employment discrimination plaintiff need not anticipate legitimate, non-discriminatory reasons that may be proffered by the employer for the adverse employment action nor allege pretext to survive a motion to dismiss. See Swierkiewicz, 534 U.S. at 511, 515 (holding that “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case” and “the Federal Rules do not contain a heightened pleading standard for employment discrimination suits”); see also Twombly, 550 U.S. at 569-70, 586 (“it should go without saying in the wake of Swierkiewicz that a heightened production burden at the summary judgment stage does not translate into a heightened pleading burden at the complaint stage”); Gordon v. U.S. Capitol Police, 778 F.3d 158, 161-162 (D.C. Cir. 2015) (noting that a plaintiff “need not plead facts showing each of the[] elements [for a discrimination claim] in order to defeat a motion under Rule 12(b)(6), ” relying on Swierkiewicz, where “the [Supreme] Court rejected such a pleading requirement for discrimination claims, ” and, in Twombly, “actually reaffirmed” Swierkiewicz); Jones v. Air Line Pilots Ass'n, Intern, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (noting that in discrimination suit, a “plaintiff is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss.” (citing Swierkiewicz)). While the D.C. Circuit has “been clear [] that ‘[a]t the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case, '" Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008)), the plaintiff must still allege sufficient facts “to draw the reasonable inference that the defendant is liable for the misconduct alleged, " id. (quoting Iqbal, 556 U.S. at 678) (reversing dismissal of discrimination claim, under 42 U.S.C. § 1983, where complaint “sufficiently makes out” an inference of race and gender discrimination by alleging that plaintiff, a black female, was denied tenure while a white male employee won tenure when both “had similar records with regard to teaching and service…[and] both also failed to meet the publication requirement”).


         Although the plaintiff was employed by AARP, the plaintiff has not sued AARP and only brings claims against AARP's consultants, defendants Ms. Newport and Calade Partners. In Count One, the plaintiff alleges that the defendants discriminated against her on account of her race in violation of the DCHRA. Compl. ¶¶ 28-32, and, in Count Two, she contends that the defendants committed tortious interference with her employment at AARP, id. ¶¶ 33-36. Each count is addressed in turn.

         A. Count One: DCHRA

         The defendants move to dismiss Count I for failure to state a claim, arguing that they cannot be held liable under the DCHRA because they were not the plaintiff's “employer” and, in any event, that the plaintiff has failed to state a claim for unlawful discrimination.[2] Even if the defendants qualified as the plaintiff's “employer” under the DCHRA, the plaintiff's ...

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