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Poole v. United States Government Publishing Office

United States District Court, District of Columbia

July 7, 2017

DION POOLE, et al., Plaintiffs,


          JAMES E. BOASBERG United States District Judge.

         Pro se Plaintiffs are current and former employees of the United States Government Printing Office. They allege in this Title VII suit that, after filing race-based pay-discrimination complaints with the Equal Opportunity Office, their supervisors retaliated against them and subjected them to a hostile work environment. The Court previously dismissed their Amended Complaint for failing to set out their retaliation and hostile-work-environment counts with sufficient specificity, but did so without prejudice so as to give them a chance to cure those defects. Now that Plaintiffs have taken that opportunity and filed a Second Amended Complaint, Defendants GPO and Public Printer Davita Vance-Cooks renew their Motion to Dismiss on several grounds, most notably that Plaintiffs failed to exhaust their administrative remedies. Largely agreeing on this points, the Court will grant Defendants' Motion.

         I. Background

         As it must at this stage, the Court treats all of the facts in Plaintiffs' operative Complaint as true. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). It also considers the additional facts set forth in their Opposition, the documents attached to the pleadings, and matters of which it may take judicial notice. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015); Equal Emp't Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Pernice v. Bovim, No. 15-541, 2015 WL 5063378, at *3 (D.D.C. Aug. 26, 2015) (explaining courts may consider documents attached by defendant to motion to dismiss “if they are integral to its claim, they are referred to in the complaint, and their authenticity is undisputed”).

         Plaintiffs are fifteen current or recent African-American employees of the GPO and the estate of a sixteenth such individual who died during the course of this litigation. See ECF No. 48 (Second Amended Complaint) at 2. They work or worked in the GPO's Digital Print Center, the staff of which is “exclusively African-American.” Id. at 6. In July 2008, they contacted the GPO's Equal Opportunity Office and subsequently filed several EEO complaints in which they alleged that “they were paid less than Caucasian employees of the GPO doing the same work because of their race.” Id. at 5; see ECF No. 51-2 (EEOC Appeal Decision, Oct. 6, 2014) at 2. More specifically, the problem was that DPC employees were classified for pay-scale purposes as printing-plant workers - a lower-paid non-craft position - rather than journeymen bookbinders - a higher-paid craft position - even though their responsibilities, training, and expertise had evolved alongside advancements in technology such that “they performed the same work as higher-paid workers, more efficiently.” SAC at 6-7. “[T]he GPO refused to establish performance standards and update [its] antiqu[ated] job descriptions, ” which Plaintiffs contend was based on race. Id. at 7-8.

         Shortly after Plaintiffs filed their pay-discrimination EEO complaints, they began to experience what they argue was retaliatory harassment at work. Id. at 8-10. Around October 2008, four Plaintiffs heard Robert Tapella, the former Public Printer - i.e., the head of the GPO - describe the group as “my slaves” while conducting a VIP tour of the DPC. Id. at 8-9. He further stated that they had become the “poor stepchild” of the GPO and referred to them as “the blacks” or “that black group.” Id. at 9. Then, in April 2009, two printers - a Xerox iGen3 color printer and a Canon OCE 800 high-speed printer - were “taken from [Plaintiffs'] section and transferred to higher salaried employees in another department.” Id. The GPO's Director of Labor Relations explained at the time that the iGen3 was transferred as “a necessary step in the Agency's plan to respond to customer demand for a wide variety of color products” and an effort “to consolidate nearly all of the production of color products in one area, ” id. at 94 (Letter from Michael Frazier, GPO Labor Relations Director, to Arthur Anderson, GCC/IBT Local 713-S President, Apr. 6, 2009), but Plaintiffs allege that removing the equipment was “a strategic move in response to the claim that their job descriptions did not adequately describe the work they do” and “was intended to weaken their disparate pay argument.” Id. at 9.

         In addition, “[w]hen employees left the section, they were not replaced for months.” Id. “At one point, only two thirds of the approved jobs were filled.” Id. As a result, one operator may have had “to operate two or three machines simultaneously.” Id. Plaintiffs also were not paid overtime and thus were “not compensated for the additional work pressure.” Id. Finally, “[n]ominations for awards were ignored, ” “[t]he salary scale for Graphic Processor Operator was lowered without explanation, ” and “[r]outine equipment servicing was stopped.” Id. at 9-10.

         Plaintiffs filed multiple EEO complaints alleging that they were subjected to “a hostile work environment with respect to issues related to their working conditions.” EEOC Appeal at 2. They complained, inter alia, that GPO management failed to timely fill vacant positions, thus allowing the DPC to remain understaffed for two years and causing employees to be overworked; did not properly assign or offer overtime; did not “address[] safety concerns related to . . . inoperable equipment”; and did not provide “adequate equipment.” ECF No. 1 (Complaint) at 5 (Letter from Juanita Flores, EEO Assistant Director, to Kerrie Riggs & Cathy Harris, Plaintiffs' Counsel, Nov. 2, 2009) (listing “specific acts of harassment identified” in Plaintiffs' EEO complaints).

         The Equal Employment Opportunity Commission accepted Plaintiffs' race-based pay-discrimination and hostile-work-environment claims for investigation in November 2009. See ECF No. 51-1 (EEOC Dismissal of Complaint, May 20, 2013) at 1 & n.4. In October 2010, Plaintiffs, acting through counsel (they did not proceed pro se through the administrative process), expressly withdrew their hostile-work-environment claim, leaving only the discriminatory-pay claim before the Commission. See ECF No. 35-2, Exh. 4 (Letter from Kerrie Riggs to Gladys Collazo, EEOC Supervisory Administrative Judge, Oct. 7, 2010) (Withdrawal Letter); EEOC Dismissal at 1 n.4; EEOC Appeal at 2. In May 2013, after undertaking a formal investigation, the Administrative Judge assigned to the matter concluded that the remaining pay claim was actually a collateral attack on the collective-bargaining process. As Plaintiffs were unable to obtain higher wages via this route, the AJ dismissed the complaint for failure to state a claim. See EEOC Dismissal at 6-7. Plaintiffs appealed the pay-discrimination decision, and the Commission affirmed. See EEOC Appeal at 5. It then denied Plaintiffs' request for reconsideration. See ECF No. 51-3 (EEOC Reconsideration Denial, Mar. 23, 2015) at 3.

         Now acting pro se, Plaintiffs responded by filing this action on June 15, 2015, in the United States District Court for the Eastern District of Virginia, which transferred it to this Court on September 29, 2015. See Complaint; ECF No. 14 at 3. After Plaintiffs filed an Amended Complaint, see ECF No. 25, Defendants GPO and Davita Vance-Cooks, the current Public Printer, moved to dismiss. See ECF No. 35. Although Defendants offered multiple arguments for dismissal, the Court focused on whether Plaintiffs had adequately stated retaliation and hostile-work-environment counts. See Poole v. United States Gov't Publ'g Office (Poole I), 219 F.Supp.3d 80, 83 (D.D.C. 2016). It ultimately concluded that they had not, dismissed the Amended Complaint without prejudice, and permitted them to file a Second Amended Complaint that more clearly articulated their relevant factual allegations. Id. at 85.

         Plaintiffs so filed and therein stated two causes of action under Title VII of the Civil Rights Act of 1964: retaliation and hostile work environment. See SAC at 10. In their Opposition, they make clear that the latter claim is alleged as a form of retaliation, rather than, say, a form of race discrimination. See ECF No. 55 (Opposition) at 5. Plaintiffs seek damages for emotional injuries and injunctive relief directing Defendants to write new job descriptions and performance standards that “accurately reflect[]” Plaintiffs' work “as the basis for a review with the union of their pay grade” and to cease “their racial slurs and retaliation.” SAC at 11. Defendants now renew their Motion to Dismiss.

         II. Legal Standard

         In evaluating Defendants' Motion to Dismiss, the Court “must treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow, 216 F.3d at 1113 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation, ” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails to “state a claim upon which relief can be granted.” Although the notice-pleading rules are “not meant to impose a great burden on a plaintiff, ” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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) (internal quotation omitted). A plaintiff must put forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “recovery is very remote and unlikely, ” Twombly, 550 U.S. at 556 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Id. at 555. Pro ...

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