MEMORANDUM OPINION AND ORDER
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.
I.
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.
II.
A.
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]
B.
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 ...