United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Creese complains that the District of Columbia Department of
Corrections fired him because he was not “manly”
enough to satisfy the leader of his training class. The
District moves to dismiss. However, it has long been the law
that gender stereotyping can violate Title VII, 42 U.S.C.
§§ 2000e-2 et seq. Mr. Creese also sues
his supervisor, Dr. Willie Barr, personally, alleging that he
is responsible for violating Mr. Creese's rights under
the Equal Protection Clause of the U.S. Constitution. Dr.
Barr moves to dismiss, but Mr. Creese makes out a legitimate
claim that cannot be dismissed at this time. Finally,
however, the allegations that D.C. and the supervisor are
both responsible for intentional infliction of emotional
distress will be dismissed, because they are insufficient as
a matter of law and because Mr. Creese failed to provide
advance notice of his claim for damages to the Mayor as
required by the D.C. Code.
following facts are taken from the Complaint and are accepted
as true in the current posture of the case. See Atherton
v. District of Columbia Office of the Mayor, 567 F.3d
672, 681 (D.C. Cir. 2009). Mr. Creese was employed at the
D.C. Department of Corrections (DOC) from October 1, 2013
until his employment was terminated on December 30, 2013.
Compl. [Dkt. 1] ¶ 4. Mr. Creese began his employment at
DOC's Basic Correctional Training Program. Id.
¶ 10. At the relevant time, Dr. Willie Barr “was a
supervisor and training specialist with DOC.”
Id. ¶ 6.
getting fitted for his uniform, Mr. Creese questioned whether
a shirt was too large for him and Dr. Barr remarked
“‘he's not getting that little shirt. I know
he wants that but he's not getting that.'”
Id. ¶ 11. Mr. Creese understood the comment to
imply that men should not wear close-fitting shirts.
Id. About two weeks later, Dr. Barr approached Mr.
Creese “during ‘formation'” and said
“‘[n]o pretty boys needed in jail, so you need to
take your earrings out. No beard, need to be
clean-shaven.'” Id. ¶ 12. Although
other men in the training program had beards, long hair, or
wore earrings, Dr. Barr did not comment on their appearance,
but made repeated comments to Mr. Creese. Id. ¶
13. Additionally, when Mr. Creese was injured during one of
the physical re-enactments in the training program,
“Dr. Barr ignored him and did not ensure that necessary
paperwork was completed to document Creese's
injuries.” Id. ¶ 14. Dr. Barr was more
attentive to the needs of other recruits. Id. ¶
Creese excelled during the training program and was
ultimately selected by his classmates to be their class
speaker at graduation. Id. ¶¶ 16, 19.
Based on Dr. Barr's demeanor after the vote, Mr. Creese
believed that Dr. Barr was not pleased with the selection.
Id. ¶ 19. Mr. Creese obtained permission from a
training supervisor to bring a personal flash drive to the
office to work on his graduation speech; however, once he had
completed the speech and printed a copy, “he forgot to
remove the flash drive f[rom] the DOC's computer.”
Id. ¶¶ 20-21.
Creese gave a few of his classmates “hair
makeovers” before graduation which Dr. Barr
complimented until he learned they were done by Mr. Creese,
at which point he “said ‘You' and abruptly
walked away.” Id. ¶ 22. After the
graduation ceremony on December 16, 2013, Dr. Barr approached
Mr. Creese and said “‘remember Creese, you can
still be fired even when you go over to the jail.'”
Id. ¶ 24.
Creese started his full-time assignment at the D.C. Jail
around December 17, 2013. Id. ¶ 25. He worked
for approximately two weeks without incident, but on December
30, 2013 “two supervisors came to roll call and
escorted Creese to the office where he was given a letter of
termination, effective immediately. When Mr. Creese inquired
about the reason for his termination, the supervisors refused
to tell him.” Id. ¶¶ 26-27.
“Creese later learned that he was terminated because he
brought his personal flash drive into the workplace.”
Id. ¶ 30. Violations of the DOC's
electronics policy generally result in a recruit receiving a
single demerit and it takes five demerits to terminate a
recruit's employment. Id. ¶ 32. This policy
was not followed; instead, Mr. Creese never received a
written or oral warning, let alone a demerit, before his
termination. Id. ¶ 33. Mr. Creese alleges that
his flash drive, which he believed he had lost, was found in
a training facility computer and given to Dr. Barr, who
looked at the contents, which included “a nude
photograph of Creese from a photo shoot (but without
revealing private anatomy) and photographs of other
men.” Id. ¶ 21, 31.
Creese filed a complaint with the D.C. Office of Human Rights
(OHR) on March 24, 2014 alleging discrimination based on sex.
Id. ¶ 7. The complaint was also cross-filed
with the U.S. Equal Employment Opportunity Commission (EEOC).
Id. On September 15, 2016 the EEOC provided Mr.
Creese with a Notice of Right to Sue, id. ¶ 8,
and Mr. Creese filed the Complaint in this case on December
14, 2016. See id. Defendants moved to dismiss for
failure to state a claim and failure to comply with statutory
notice provisions related to the claim of intentional
infliction of emotional distress. See Defs.'
Mot. to Dismiss (Mot.) [Dkt. 6]. Mr. Creese opposed,
see Mem. of P.& A. in Supp. of Opp'n to
Defs.' Mot. to Dismiss [Dkt. 8-1], and Defendants
replied. See Reply Mem. of P.& A. in Supp. of
Defs.' Mot. to Dismiss [Dkt. 12]. The motion is ripe for
Rule of Civil Procedure 12(b)(6) requires a complaint to be
sufficient “to give the defendant fair notice of what
the claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Although a complaint does not
need to include detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. The facts
alleged “must be enough to raise a right to relief
above the speculative level.” Id. A complaint
must contain sufficient factual matter to state a claim for
relief that is “plausible on its face.”
Id. at 570. When a plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged, then the
claim has facial plausibility. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. A court must treat the
complaint's factual allegations as true, “even if
doubtful in fact.” Twombly, 550 U.S. at 555.
But a court need not accept as true legal conclusions set
forth in a complaint. Iqbal, 556 U.S. at 678.
deciding a motion under Rule 12(b)(6), a court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and
matters about which the court may take judicial notice.
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007). Generally, when a court relies upon
matters outside the pleadings, a motion to dismiss must be
treated as one for summary judgment and decided under Rule
56. See Fed. R. Civ. P. 12(d). “However, where
a document is referred to in the complaint and is central to
the plaintiff's claim, such a document attached to the
motion papers may be considered without converting the motion
to one for summary judgment.” Nat'l Shopmen
Pension Fund v. Disa, 583 F.Supp.2d 95, 99 (D.D.C.