United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
discrimination case, Plaintiff Jessie Moore advances a host
of statutory and common law claims arising out of his
termination as a security guard at Defendant Howard
University. Plaintiff asserts eight separate claims against
Defendant Howard University and three Howard University
officers-Allen Lacey, Eugene Bentley, and Lorraine Kittrell
(“the Individual Defendants”)-who he asserts
conspired to unlawfully terminate him. Am. Compl., ECF No. 15
[hereinafter Am. Compl.]. Defendants' Motion to Dismiss
the Amended Complaint is now ripe for the court's
consideration. See Defs.' Mot. to Dismiss, ECF
No. 19, Mem. in Supp., ECF No. 19-1 [hereinafter Defs.'
the court writes here primarily for the parties, it assumes
their familiarity with the background facts of this matter
and will refer to those facts only as necessary to resolve
Defendants' Motion. The court addresses each claim, and
its grounds for dismissal, in the order in which the claims
appear in the Amended Complaint.
Race-Based Discrimination (Count I)
Count I, Plaintiff asserts that Defendants fired him from his
position as a security guard because of his race in violation
of Title VII of the Civil Rights Act of 1964. See
Am. Compl. ¶¶ 27-34. Defendants attack the
sufficiency of that claim on only one ground, arguing that
“no inference of race-based discrimination may
exist” in this case because Plaintiff and the
Individual Defendants are all African American. Defs.'
Mot. at 13. The Supreme Court, however, has squarely rejected
that rationale for dismissal, stating in Oncale v.
Sundowner Offshore Services, Inc., that there is no
“conclusive presumption that an employer will not
discriminate against members of his own race.” 523 U.S.
75, 79 (1998); see also Castaneda v. Partida, 430
U.S. 482, 499 (1977) (observing that “[b]ecause of the
many facets of human motivation, it would be unwise to
presume as a matter of law that human beings of one definable
group will not discriminate against other members of their
group”). Count I, therefore, does not suffer from the
pleading deficiency advanced by Defendants.
court, however, will dismiss Count I against the Individual
Defendants, because Title VII does not extend liability to
individuals. See Gary v. Long, 59 F.3d 1391, 1399
(D.C. Cir. 1995).
Race-Based Hostile Work Environment (Count II)
Count II, Plaintiff asserts a hostile work environment claim
based on two statements made by Defendant Lacey, as well as
the events leading to his termination. Plaintiff alleges
that, on August 2, 2016, after inadvertently walking into a
meeting in Lacey's office, Lacey told Plaintiff,
“[a]s a black man Didn't yoh! Momma and Daddy teach
you not to open a door when it is closed.” Am. Compl.
¶ 17. Then, on August 9, 2016, Lacey again referred to
Plaintiff's race, stating: “When you see grown
people talking to you as a black man, you need to keep your
mouth shut and wait.” Id. ¶ 18. Lastly,
on August 19, 2016, Plaintiff asserts that the Individual
Defendants conspired to terminate him based on his race by
falsely accusing him of a parking infraction and instructing
him to acknowledge that infraction by signing a written
reprimand. Id. ¶¶ 20-22.
allegations do not sustain a claim of hostile work
environment. Defendant Lacey's two alleged statements
referencing Plaintiff's race, while uncivil, do not
create the kind of “workplace [that] is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citation and internal quotation marks
omitted). Nor can Plaintiff bootstrap his discrete claim of
discriminatory termination into a hostile work environment
claim. See Na'im v. Rice, 577 F.Supp.2d 361, 377
(D.D.C. 2008); Rattigan v. Gonzales, 503 F.Supp.2d
56, 81-82 (D.D.C. 2007). Accordingly, Count II of the Amended
Complaint is dismissed.
Race-Based Retaliation (Count III)
alleges in Count III that Defendants conspired to terminate
him for exercising his statutory right to complain to his
employer about race discrimination. Am. Compl. ¶¶
19, 41-45. The Amended Complaint avers that, on August 12,
2016, Plaintiff reported to Defendant Bentley, the Deputy
Chief of the Howard University Campus Police, the
“disturbing and intimidating” statements that
Defendant Lacey had directed towards him. Id.
¶¶ 8, 19. Defendants assert that this bare
allegation of retaliation is not actionable, however, because
“nowhere does Plaintiff claim or allege that he
complained about discrimination.” Defs.'
Mot. at 14. The court agrees. “Not every complaint
garners its author protection under Title VII. While no magic
words are required, the complaint must in some way allege
unlawful discrimination.” Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)
(internal citations and quotation marks omitted). Here, even
viewing the allegations in the light most favorable to
Plaintiff, the Amended Complaint only avers that Plaintiff
complained to Defendant Bentley about two racially-tinged
comments; such a complaint, without more, does not qualify
for protection under Title VII. Id. The court
therefore dismisses Count III of the Amended Complaint.
Wrongful Discharge (Count IV)
IV advances a wrongful discharge claim. That claim is
premised on the allegation that, on August 19, 2016,
Defendant Lacey gave Plaintiff a “parking ticket”
and informed him that he was being “formally
reprimanded” for the infraction. Am. Comp. ¶¶
20-22. Believing that accusation to be false, Plaintiff
“refused to sign [the written] reprimand, ”
prompting Lacey to threaten him with termination.
Id. ¶ 22. Plaintiff was let go less than three
weeks later. Id. ¶ 24. According to Plaintiff,
these allegations make out a claim of wrongful termination.
Pl.'s Opp'n to Defs.' Mot, ECF No. 20
[hereinafter Pl.'s Opp'n], at 7-14. That contention,
however, is hopelessly misguided.
District of Columbia law, a claim of wrongful discharge is
available as a narrow exception to the general rule that an
employer may discharge an at-will employee at any time and
for any reason. See Thigpen v. Greenpeace, Inc., 657
A.2d 770, 770-71 (D.C. 1995). To make out such a claim, the
plaintiff must allege that the sole reason for his discharge
was “his refusal to violate the law, as expressed in a
statute or municipal regulation.” Id. at 771
(internal quotation marks omitted). Here, Plaintiff maintains
that Howard University fired him because he refused to
violate the second-degree fraud statute in the District of
Columbia criminal code. Am. Compl. ¶ 49 (citing
D.C. Code § 22-3221(b)). Thus, to successfully plead a
claim of wrongful discharge in this case, Plaintiff must
allege facts establishing that complying with his
employer's instructions would have resulted in the
commission of fraud in the second degree. See
Thigpen, 657 A.2d at 771. The elements of that offense
are: (1) the defendant engaged in a scheme or systematic
course of conduct; (2) that scheme was intended to deceive
someone in order to obtain their property; and (3) that
property is valued at $1, 000 or more. Warner v. United
States, 124 A.3d 79, 85 (D.C. 2015); see also
Criminal Jury Instructions for the District of Columbia, No.
5.200 (5th ed. 2016). The Amended Complaint, however, does
not contain any well-pleaded facts to support any of those
elements. It does not allege a “scheme or systematic
course of conduct” but, instead, only a onetime,