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Lott v. Not-For-Profit Hospital Corp.

United States District Court, District of Columbia

July 27, 2018

JOHN LOTT, Plaintiff,


          Amit P. Mehta, United States District Judge.

         Defendant Not-for-Profit Hospital Corporation (“NFPHC”) once more moves to dismiss Plaintiff John Lott's complaint[1] for failure to state a claim. See Def.'s Mot. to Dismiss, ECF No. 33, Mem. of Pts. & Auths. in Supp. of Mot. to Dismiss, ECF No. 33-1 [hereinafter Def.'s Mem.]. For the reasons that follow, Defendant's Motion is denied.


         As the parties are familiar with the factual allegations and procedural history of this case, the court does not start with a summary recitation of those matters. The court does, however, make clear what it has considered in evaluating Defendant's Motion to Dismiss.

         “In determining whether a complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” Hurd v. District of Columbia, Gov't, 864 F.3d 671, 678 (D.C. Cir. 2017) (citation omitted and alterations original). Here, Plaintiff attached to his opposition brief multiple exhibits for the court's consideration, including, most significantly, a sworn affidavit from Plaintiff himself and a Letter of Determination to Sonia Edwards, a former NFPHC employee, from the D.C. Office of Human Rights. See Pl.'s Opp'n, ECF No. 34, Exs. C, D, ECF Nos. 34-3, 34-4.[2] Neither the sworn affidavit nor the Letter of Determination are attached to or incorporated by reference in the Second Amended Complaint, and neither are judicially noticeable. Accordingly, those exhibits are not properly before the court. Therefore, in evaluating Defendant's Motion, the court has considered the allegations set forth in Plaintiff's Second Amended Complaint and the exhibits thereto, but no more.



         The court begins with Plaintiff's sole federal cause of action:[3] retaliation under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(2) (Count III).[4] The court initially dismissed Plaintiff's FMLA retaliation claim for failure to sufficiently allege “oppositional” conduct, without deciding whether an employee who alleges retaliation based on his fulfillment of his normal job duties is protected by the FMLA. See Mem. Op., ECF No. 30, at 14-16. Defendant argues that Plaintiff's present claim fails to cure its pleading deficiency. Def.'s Mem. at 5-10. The court disagrees.

         The FMLA makes it illegal to retaliate against an employee who has “oppos[ed] any practice made unlawful” under the Act. 29 U.S.C. § 2615(a)(2). Although the Supreme Court has not defined what “oppose” means specifically under the FMLA, it has interpreted the same term in Title VII's similarly worded anti-retaliation provision. Crawford v. Metro. Gov't of Nashville & Davison Cty., Tenn., 555 U.S. 271, 276 (2009); see Gordon v. U.S. Capitol Police, 778 F.3d 158, 161 (D.C. Cir. 2015) (noting that the FMLA's anti-retaliation provision under § 2615(a)(2) “is intended to be construed in the same manner” as Title VII's anti-retaliation provision (internal citation omitted)). In Crawford, the Supreme Court held that the term “oppose” carries its ordinary dictionary definition: “[t]o resist or antagonize . . .; to contend against; to confront; resist; withstand.” 555 U.S. at 276 (quoting Webster's New International Dictionary 1710 (2d ed. 1957)). Commenting on that broad construct, the Court made the following observation, which is particularly relevant to this case: “When an employee communicates to her employer a belief that the employer has engaged in a form of employer discrimination, that communication virtually always constitutes the employee's opposition to the activity.” Id. (cleaned up). The employee's “belief” that the employer's conduct was unlawful need not be certain; rather, a “good faith and reasonable belief” that the employer has engaged in discriminatory conduct will do. See Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 24 (D.C. Cir. 2013).

         Applying those principles here, Plaintiff's retaliation claim passes muster. Plaintiff alleges that, upon learning that NFPHC had fired Edwards while on FMLA leave, he met with NFPHC's CEO, David Small, on June 8, 2015, “to discuss the termination of Edwards and that [it runs] afoul of the FMLA, the D.C. FMLA & [District of Columbia Human Rights Act (“DCHRA”)] laws.” Second Am. Compl. ¶ 48. Plaintiff apparently was persuasive, because Small “admitted that [Edwards's] termination may have been unlawful and instructed Lott to contract HR to reinstate her and to promote her ‘upward and outward.'” Id. The next day, Plaintiff asked Executive Vice President of Human Resources Jackie Johnson to “rescind” Edwards's termination, but Johnson refused, stating: “Sonia is nasty and has to stay gone.” Id. ¶ 49. A little more than a month later, NFPHC installed a new CEO, Andrew Davis. Id. ¶ 58. Plaintiff alleges that, on July 20, 2015, he discussed Edwards's “illegal termination” with Davis and advised him that Edwards needed to be re-hired, but that Johnson was “thwarting his efforts to reinstate [her].” Id. ¶¶ 59-60. Ten days later, Davis would fire Plaintiff under circumstances that make a retaliatory motive plausible. On July 30, 2015, Plaintiff was directed to meet with Davis. Id. ¶ 69. Johnson was present for the meeting, and Plaintiff objected to her attendance, “because he (Lott) is investigating [Executive Vice President Pamela] Lee for the unlawful termination of Edwards and that EVP Jackie Johnson has a direct conflict of interest on this matter.” Id. According to Plaintiff, his request to excuse Johnson was ignored and instead Davis announced Plaintiff's termination, telling Plaintiff that he is “not a good fit” and that his work is “unsatisfactory, ” even though only days earlier Davis had commended Plaintiff for his performance. Id. Taking these allegations to be true, and viewing them in the light most favorable to him, Plaintiff “communicate[d] to [his] employer a belief that the employer ha[d] engaged in . . . a form of employment discrimination.” Crawford, 555 U.S. at 276. Therefore, Plaintiff has sufficiently pleaded oppositional conduct for purposes of his FMLA retaliation claim.

         Defendant points to this court's prior ruling in arguing that Plaintiff's revised pleading of protected activity still falls short. In particular, Defendant references the portion of the court's decision in which the court stated that Plaintiff's “single expression of a qualified opinion of potential liability is a far cry from the type of full-throated opposition DeMasters [v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015)] contemplated.” Mem. Op. at 16; see Def.'s Mem. at 7 (citing Mem. Op. at 15-16). Though Defendant's reliance on the court's earlier decision is understandable, the reference to the “full-throated opposition DeMasters contemplated” was not meant to suggest that only such conduct qualifies as protected activity. Rather, the court used DeMasters-a case that Plaintiff had cited-as illustrating how Plaintiff's initial pleading of oppositional action was insufficient. See Mem. Op. at 15 (noting that “Plaintiff's claim fails under his own conduct-focused theory, ” which relied on DeMasters). As Crawford makes clear, “full-throated opposition” is not required to qualify for protection under Title VII's-and, by extension, the FMLA's-anti-retaliation provision. Rather, a good faith and reasonable expression of belief that the employee's employer has engaged in discrimination will do. Plaintiff's pleading overcomes that low bar.[5]


         Having found that Plaintiff has sufficiently alleged protected activity, the court must resolve the question left unaddressed in its prior decision: Whether the “manager rule” nevertheless precludes Plaintiff from asserting a retaliation claim because his alleged oppositional conduct was part of his regular job duties. See Def.'s Mem. at 7 n.4. As the court described it before, “some courts have held, ” under what is known as the “manager rule, ” “that an employee is not protected from retaliation for reporting concerns about an employer's potential violations of the law, if the employee is acting pursuant to her job duties.” Mem. Op. at 14. Although this “rule” arose in the context of the Fair Labor Standards Act's anti-retaliation protections, seeLittlejohn v. City of New York, 795 F.3d 297, 317 n.16 (2d Cir. 2015), Defendant urges the court to apply it in the FMLA context. See Def.'s Mem. at 7 n. 4. The court declines to do so. The court is persuaded by the comprehensive rationale set forth by the Fourth Circuit in DeMasters for rejecting the ...

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