United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
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. Dkt. 9. For the reasons that follow, the
Court will grant the motion in part and deny it in part.
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.
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.
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.
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.
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.
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.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.
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).
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.
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).