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Bing v. Architect of Capitol

United States District Court, District of Columbia

October 27, 2017

WAYNE BING, Plaintiff,
v.
THE ARCHITECT OF THE CAPITOL, Defendant.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge

         Denying Defendant's Partial Motion to Dismiss; Sua Sponte Granting Plaintiff Leave to Further Amend his Complaint

         I. INTRODUCTION

         Plaintiff Wayne Bing has sued his former employer the Architect of the Capitol for racial discrimination and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Congressional Accountability Act, 2 U.S.C. §§ 1301 et seq. (“CAA”). Defendant moves to dismiss any claims based on acts that occurred prior to August 5, 2015 for lack of subject-matter jurisdiction on the ground that those claims were not timely exhausted pursuant to the CAA's mandatory administrative procedure. Mr. Bing counters that acts occurring before that date were part of a hostile work environment he had alleged in his Amended Complaint, and that this hostile work environment encompassed acts occurring both before and after the August 5, 2015 statutory cutoff date. Therefore, Mr. Bing argues, his claims based on acts occurring before August 5, 2015 are not time barred, pursuant to Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Defendant responds that Mr. Bing did not include a hostile work environment claim in his Amended Complaint, preventing his invocation of Morgan from making pre-cutoff date acts timely. In the alternative, it argues that even if Mr. Bing's Amended Complaint had included a hostile work environment claim, the acts he alleges are not sufficiently severe or pervasive to constitute a hostile work environment.

         The Court finds that Mr. Bing did not clearly include a hostile work environment claim in his Amended Complaint, and therefore does not reach Defendant's arguments as to the sufficiency of those pleadings. However, because Defendant was on notice as to Mr. Bing's potential hostile work environment claim from his AOC administrative complaint and original complaint in this case, the Court also grants Mr. Bing leave to further amend his complaint to clearly include a hostile work environment claim and to provide a more detailed explanation of how the acts he alleges constituted such a claim. Additionally, because Mr. Bing may be capable of alleging a hostile work environment in his further amended complaint, Defendant's partial motion to dismiss for lack of subject-matter jurisdiction is denied.

         II. FACTUAL BACKGROUND[1]

         Plaintiff Wayne Bing, an African American man, worked for the Architect of the Capitol (“AOC”) as a Recycler in the Senate Office Buildings for eight years prior to his termination in September 2015. Am. Compl. ¶¶ 2, 32, ECF No. 9. Mr. Bing alleges that prior to his termination, he suffered discrimination based on his race and retaliation for publicly stating that he believed African American employees, including himself, were subject to differential treatment. Am. Compl. ¶¶ 24-25. Mr. Bing alleges that he was subject to a “discriminatory environment, ” Am. Comp. ¶ 42, and that “[e]mployees who were not of African American descent were treated more favorably by receiving awards and performance recognition, and given the benefit of the doubt.” Am. Compl. ¶ 44. He also alleges that prior to his termination, he was “disciplined more severely than employees who were not of African American descent, even though his comparators engaged in similar events that warranted suspension.” Am. Compl. ¶ 45.

         Mr. Bing specifically alleges that his treatment at work took a turn for the worse after he voiced his concerns about the differential treatment of African American employees during a March 24, 2015 staff meeting. He alleges that, after this staff meeting, he immediately “began to experience retaliation . . . such as being written up for leaving trash on the floor, and other petty offenses.” Am. Compl. ¶ 25. Mr. Bing points to three specific instances during which he believes he was retaliated or discriminated against, apart from his termination and the withholding of an award to which he believes he was entitled: on March 30, 2015, he was falsely accused of not reporting to a location where he was supposed to be; on July 7, 2015, he was falsely accused of not clocking out and of leaving trash on the floor; and on July 17, 2015, he was falsely accused of failing to follow the direct order of a supervisor. Am. Compl. ¶¶ 27, 28, 30. After two of the false accusations had occurred, on July 10, 2015, Mr. Bing was issued a proposal for removal for violating the AOC Standards of Conduct, Am. Compl. ¶ 29, and despite challenging his proposed removal by disputing the basis for his termination, he was informed in early September that he was being removed from his position, effective September 18, 2015. Am. Compl. ¶¶ 31- 32; Def. Ex. 2 at 1, ECF No. 17-2.

         Mr. Bing filed a request for counseling with the AOC's Office of Compliance on February 1, 2016, alleging “disparate treatment in the terms and conditions of his employment” and “reprisal/retaliation resulting in a hostile work environment and his termination for having engaged in protected activity in violation of section 201 and 207 of the Congressional Accountability Act.” Def. Ex. 3 at 1, ECF No. 17-3. The AOC Office of Compliance issued Mr. Bing an End of Mediation Notice on July 26, 2016, giving Mr. Bing the right to sue in federal court. Am. Comp. ¶ 35. He then filed this suit on October 24, 2016, alleging one count of race discrimination and reprisal in violation of Title VII. See Compl. at 3, ECF No. 1. On January 26, 2017, he filed his amended complaint, alleging one count of race discrimination in violation of Title VII and one count of retaliation in violation of Title VII. Am. Compl. at 7-8. Defendant has now moved to dismiss for lack of subject-matter jurisdiction all claims against it arising from acts that occurred before August 5, 2015.

         III. STANDARD OF REVIEW

         When defending against a Rule 12(b)(1) motion to dismiss, plaintiffs bear the burden of establishing a court's subject-matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). A court, however, must accept “the allegations of the complaint as true, ” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015), and “construe the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). Where necessary to resolve a jurisdictional challenge, “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”) Overall, however, ‘the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350).

         IV. ANALYSIS

         Defendant has moved to dismiss “all individual claims for which [Mr.] Bing failed to exhaust his administrative remedies, ” which it believes include all claims arising from acts that occurred before August 5, 2015. Def.'s Memo. Support Partial Mot. Dismiss (Def.'s Memo.) at 2, ECF No. 17. However, Mr. Bing contends that the discriminatory or retaliatory acts he alleges in his Amended Complaint, including the ones occurring prior to August 5, 2015, were part of a “continuing violation” of Title VII, as part of a hostile work environment, and therefore were timely exhausted. Pl.'s Opp'n Def.'s Partial Mot. Dismiss (Pl.'s Opp'n) at 3, ECF No. 18. In response, Defendant contends that Mr. Bing did not plead a claim of hostile work environment in his Amended Complaint, and that even if he had, the acts alleged in his Amended Complaint do not meet the level of severity required to properly state such a claim, thereby precluding his claims based on those acts from the benefit of the continuing violation doctrine. Def.'s Reply Pl.'s Opp'n Def.'s Partial Mot. Dismiss (Def.'s Reply) at 1-2, ECF No. 19.

         Therefore, at issue in this motion are the questions of whether Mr. Bing included a hostile work environment claim in his Amended Complaint, and whether, if he did, such an allegation would grant this Court subject-matter jurisdiction over discriminatory acts that occurred prior to August 5, 2015. For the reasons set forth below, this Court finds that Mr. Bing did not sufficiently allege a hostile work environment in his Amended ...


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