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Tallbear v. Perry

United States District Court, District of Columbia

July 24, 2018

JAMES RICHARD PERRY, Secretary, U.S. Department of Energy, Defendant.



         Jody TallBear brings this action against her employer, the U.S. Department of Energy, alleging that it racially discriminated against her by allowing other employees to discuss the Washington Redskins football team and display Redskins paraphernalia at work. She also alleges that the Department of Energy retaliated against her after she raised concerns about the Redskins following in the office. Before the Court is Energy Secretary James Richard Perry's Motion to Dismiss.[1] Dkt. 9. For the reasons that follow, the Court will grant the motion in part and deny it in part.

         I. BACKGROUND

         The Department of Energy (DOE) hired TallBear in 2011 as an attorney advisor in the Office of Economic Impact and Diversity. Compl. ¶ 8, Dkt. 1. TallBear “has held herself out to be Native American, ” id. ¶ 1, and for several years served as lead for tribal and Native American engagement in DOE's Economic Impact and Diversity office, id. ¶ 9. In 2013, TallBear became the Strategic Initiatives and Policy Advisor for the Economic Impact and Diversity office. Id. ¶ 12. In that role, TallBear gave numerous presentations on issues of race and bias, such as “What can a critical look at Indian mascots teach us about uncovering bias in ourselves and others?” Id. ¶¶ 14-15.

         The crux of the discrimination claim is TallBear's allegation that she has been “repeatedly exposed” to the Washington Redskins name and logo, from “posters placed in common areas by DOE employees” to “clothing worn by employees” and “causal and widespread use” of the term in her presence. Id. ¶ 20. TallBear also cites two specific instances of exposure to the Redskins. First, a DOE leadership trainer wore a Redskins tie and mentioned the Redskins during a presentation in February 2012. Id. ¶ 21. Second, a DOE attorney left a “Redskins Special” flyer from Subway-the sandwich shop-on Tallbear's desk in December 2012. Id. ¶ 22. TallBear also alleges that Native Americans are not included in diversity training though other groups are and that DOE has not offered “cultural sensitivity training” on Native American issues. Id. ¶ 23. All this, TallBear says, despite the fact that she has “communicated multiple times to DOE leadership that she is deeply offended by the [Redskins] term and its widespread use in the DOE workplace.” Id. ¶ 18. TallBear considers the term a racial slur, in part because it was “widely used throughout the 18th and 19th centuries to denote the physical proof of kill of a Native American in order for hunters to collect the monetary bounty.” Id.

         In March 2013, TallBear expressed her concerns in a memorandum to her boss, Director of Economic Impact and Diversity LaDoris Harris, and two DOE Deputy Directors. Id. ¶ 25. TallBear asserted that DOE was fostering a hostile work environment that caused her anxiety and depression. Id. In June 2013, DOE's Office of General Counsel informed DOE's Office of Diversity and Inclusion that it had found no legal basis to ban Redskins paraphernalia and did not advise providing sensitivity training on the issues TallBear raised. Id. ¶ 28. The Office of General Counsel also suggested that TallBear could direct her concerns to the U.S. Office of Personnel Management (OPM) or the U.S. Equal Employment Opportunity Commission (EEOC). Id. TallBear accordingly sent a memorandum to those agencies in October 2013, but received no response. Id. ¶ 29. TallBear wrote additional memoranda to OPM in June 2014 and to the U.S. Commission on Civil Rights in November 2014. Id. ¶¶ 30-31. In December 2014, the OPM Director of Diversity and Inclusion responded that there was “no legal basis for banning [Redskins] paraphernalia.” Id. ¶ 32.

         In October 2015, TallBear informed Harris that she had accepted several invitations to speak at other federal agencies on issues of race and bias during Native American Heritage Month events. Id. ¶ 35. TallBear had spoken at similar events in the past two years and had given a presentation on sensitivity training at a meeting of agency diversity leaders the previous month. Id. ¶¶ 33, 35. Harris responded negatively, stating that she did not want her “role as Director [in] jeopardy because you went off speaking regarding controversial issues.” Id. ¶ 36. The same month, Harris postponed TallBear's attendance at a federal training program that was scheduled for January 2016. Id. ¶ 37. As of the complaint's filing in January 2017, that training had not been rescheduled. Id. ¶ 38. Also in October 2015, Harris allegedly began to “remov[e] Ms. TallBear from her policy lead position” and “exclude Ms. TallBear from meetings, briefings with senior leadership or other offices, and similar assignments that she had handled for the last several years.” Id. ¶ 39. TallBear also alleges that the ten to fifteen trips per year she normally took for speaking engagements or stakeholder engagement was reduced to zero. Id. ¶ 40. TallBear was also asked by a member of the Office of General Counsel to “take personal leave and disassociate herself from DOE” when speaking at planned engagements for Native American Heritage Month because TallBear planned to make presentations “showing other ethnic groups as mascots” and that could “open the agency up to litigation.” Id. ¶ 41 (some quotation marks omitted). TallBear alleges that in November 2015, Harris reassigned many of her responsibilities to a less experienced staff member. Id. ¶ 42.

         On December 7, 2015, TallBear was reassigned to DOE's Office of Civil Rights to process Title VII complaints. Id. ¶ 43. TallBear calls this a “de facto demotion.” Id. TallBear says that she has sought detail opportunities in energy-policy offices since then but that Harris or the Office of General Counsel rejected those requests. Id. ¶ 44. TallBear also alleges that in February 2016, Harris did not include her in a meeting to discuss a report of Harris's accomplishments at DOE, and in March 2016, a request to attend a DOE meeting with the Montana Governor's office was denied. Id. ¶¶ 45, 46.

         TallBear filed an informal complaint on December 10, 2015 and a formal administrative complaint in March 2016. Id. ¶ 5. The FBI issued a Report of Investigation in September 2016.[2]Id. ¶ 6. On January 5, 2017, more than 180 days after TallBear filed her administrative complaint, she filed suit in this Court. See Compl. The case was reassigned to the undersigned judge on December 4, 2017.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard does not amount to a specific probability requirement, but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 557 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). A complaint need not contain “detailed factual allegations, ” but alleging facts that are “merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

         Well-pleaded factual allegations are “entitled to [an] assumption of truth, ” id. at 679, and the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged, ” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply, however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself, documents attached to the complaint, documents incorporated by reference in the complaint, and judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992).

         III. ...

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