United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge
Defendant's Partial Motion to Dismiss; Sua
Sponte Granting Plaintiff Leave to
Further Amend his Complaint
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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 ...