United States District Court, District of Columbia
TERRY R. WIGFALL, Plaintiff,
v.
OFFICE OF COMPLIANCE, Defendant.
MEMORANDUM OPINION
DABNEY
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
Terry
Wigfall brings this action against her employer, the Office
of Compliance, under the Congressional Accountability
Act.[1]
Wigfall claims that individuals at her workplace have
discriminated against her on the basis of sex, race, and
disability; subjected her to a hostile work environment; and
retaliated against her for various actions she took. Before
the Court is the Office of Compliance's Motion to Dismiss
the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons that
follow, the Court will grant the motion and will dismiss the
complaint without prejudice.
I.
BACKGROUND[2]
Terry
Wigfall began working for the Office of Compliance (OOC), a
federal legislative agency, in 2007. Second Am. Compl. ¶
18. Around 2010, [3] Wigfall began working with John Uelmen,
then a senior attorney. Id. ¶ 23. Uelmen is a
white man, and according to Wigfall, he “had trouble
interacting with non-white employees” and
“frequently ignored” them “[f]rom the
outset.” Id. ¶¶ 22-23. In the fall
of 2013, when OOC was considering Uelmen for the general
counsel position, Wigfall “raised concerns” to
OOC's executive director that “Uelmen was racist
and sexist.” Id. ¶¶ 34-35. OOC did
not select Uelmen for the general counsel role in 2013, but
he later became general counsel in 2015. Id. ¶
37. From 2010 to the present, Wigfall alleges that Uelmen
“has regularly engaged in rude and inappropriate
behavior” including interrupting her at meetings and
minimizing her achievements, while sparing Wigfall's
white colleagues. Id. ¶ 38. Wigfall claims that
“Uelmen's poor treatment of [her] intensified after
she recommended to the Board that he not be chosen as General
Counsel in 2013, ” id. ¶ 39, though her
complaint does not allege any specific instances before 2015.
Wigfall
was promoted to occupational safety and health (OSH) program
manager in 2013. Id. ¶ 33. In that role, she
completed three reports between August and October 2015
finding health and safety issues in cases filed by the
Architect of the Capitol's Inspector General's Office
employees. Id. ¶ 40. In October 2015, the
general counsel (Uelmen's predecessor, a white woman
named Amy Dunning) told Wigfall that she intended to remove
the findings, and Wigfall “strongly objected.”
Id. ¶ 41. On October 28, 2015, Dunning gave
Wigfall a negative performance evaluation. Id.
¶ 43. Wigfall alleges that “[b]ecause of [her]
negative performance evaluation, she was denied a bonus in
2015, ” id. ¶ 44, though she admits in
her opposition to OOC's motion to dismiss that she
learned of the bonus decision in September, Pl.'s
Opp'n, Dkt. 37 at 9. Wigfall met with OOC's executive
director on October 30 and November 5, and at both meetings
she “expressed concerns of racial discrimination in the
office.” Second Am. Compl. ¶¶ 45-46.
On
December 7, after investigating a complaint from another OOC
employee, Wigfall informed management about mold in one of
OOC's file rooms. Id. ¶¶ 47-51.
OOC's executive director “became visibly upset and
stated that there should be no findings.” Id.
¶ 51. Sometime in December, Uelmen stopped processing
Wigfall's report on this issue and “changed the
process of OSH safety reports” so that “attorneys
completed a final review without input from the OSH team,
” often resulting in attorneys removing OSH findings.
Id. ¶ 52. And on December 9, after Wigfall had
submitted calendars with inspection dates for the OSH team,
Uelmen “returned the calendar proposal with additional
job duties” that included “increas[ing] the
schedule from 3 days of inspections per week to 4 days per
week, and added inspections pursuant to the Americans with
Disabilities Act.” Id. ¶ 55. Wigfall
believes this added work was retaliation for her
mold-in-the-file-room findings. Id. ¶ 56.
In
“spring 2016, ” an OOC attorney-Hillary
Benson-started wearing mosquito repellant because she was
pregnant and did not want to contract the Zika virus.
Id. ¶ 57. Wigfall “immediately began
having significant negative, physically disabling reactions
to the repellant, including difficulty breathing, ” and
her reactions “materially impacted her ability to
perform her job duties.” Id. ¶ 58. She
missed “numerous days of work” and had to work
from an empty conference room when she did come in.
Id. ¶ 61. Wigfall alleges she “asked for
a reasonable accommodation”-she does not specify
what-but that Uelmen dismissed her reactions as seasonal
allergies. Id. ¶¶ 59-60. Wigfall alleges
that she took two days of sick leave in April 2016 “to
recover from bronchitis that she developed as a result of
[Benson's] excessive use of insect repellant inside OOC
offices.” Id. ¶ 66. On April 18, Uelmen
“acted aggressively” in a staff meeting, and
Wigfall believes this behavior was retaliation for her
accommodation request. Id. ¶ 67. On April 20,
Uelmen sent Wigfall an expectations memo that was critical of
Wigfall's job performance. Id. ¶ 68.
Wigfall
filed her first counseling request with OOC on April 25,
2016, and she alleges in her complaint that she
“discussed the issues contained above” in her
first counseling request. Id. ¶ 69. She
completed counseling and requested mediation on June 14; the
mediation period ended on August 25. Id. ¶ 70.
At a
May 2 staff meeting, Uelmen “did not permit [Wigfall]
to speak” and “ignored her.” Id.
¶ 71. At meetings on May 4 and May 18, Benson sat close
to Wigfall, and Wigfall believes she did so intentionally
despite knowing of Wigfall's bug spray sensitivity.
Id. ¶¶ 72, 74. Uelmen ignored a May 11
email from Wigfall complaining about the repellant.
Id. ¶ 73. On May 18, after Wigfall met with
Architect of the Capitol staff to discuss cleaning the office
to remove the bug spray smell, OOC's executive director
“scolded” her. Id. ¶¶ 75-76.
And while a cleaning did take place in late May 2016 that
allowed Wigfall to work in her office, Wigfall “does
not believe that the spring cleaning was related to her
request for a reasonable accommodation” and alleges
that OOC “wholly failed” to accommodate her or
engage in an interactive process. Id. ¶¶
77-80.
Wigfall
alleges continuing “[r]acial and [g]ender
[d]isparities” over the summer of 2016. In May and
June, after Wigfall complained to Uelmen that one of her
direct reports-a white woman-was habitually late and
unresponsive to Wigfall's correction, Uelmen instructed
Wigfall to write her up but then met with the employee and
took her side. Id. ¶¶ 81-82. Wigfall
further alleges that Uelmen “strongly encouraged
[Wigfall] to discipline non-white employees against [her]
judgment, ” but “refused to allow” her to
discipline two white employees (including the tardy
employee). Id. ¶ 84. Finally, at a July 18
meeting, Uelmen “ignored” Wigfall and instead
directed questions to her subordinate, a white man.
Id. ¶ 85.
On
August 22, 2016, Wigfall filed a second request for
counseling “as to the continued discrimination and
retaliation that occurred after her first request in April
2016.” Id. ¶ 86. She requested mediation
on September 22, and mediation ended on October 24.
Id. ¶ 87. On September 6, a few weeks after
Wigfall's second counseling request, Uelmen
“further increased [her] workload by requiring her to
complete four employee evaluations” by September 9.
Id. ¶ 88. Uelmen also attended performance
review for Wigfall's subordinates-something he had not
done before-and “consistently praised” the white
female employee Wigfall had attempted to write up for
tardiness. Id. ¶¶ 90-91. Uelmen also
promised a white male employee he would help him get a raise,
but did not make similar promises to minority employees and
generally “praised white employees more than non-white
employees.” Id. ¶ 92.
Wigfall
sued OOC on November 23, 2016. Dkt. 1. Her complaint-as
amended, see Dkt. 34-lists four counts under the
Congressional Accountability Act: failure to accommodate her
disabilities; discrimination on the bases of gender, race,
and disability; hostile work environment on the bases of
gender, race, and disability; and retaliation. Each of her
four counts “repeats and realleges” her entire
complaint without specifying which acts are alleged to
support which counts, leaving the Court to parse the events
recounted above for colorable claims of failure to
accommodate, discrimination, hostile work environment, and
retaliation.
II.
LEGAL STANDARDS
Under
Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss an action or claim when the court lacks
subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A motion
for dismissal under Rule 12(b)(1) “presents a threshold
challenge to the court's jurisdiction.” Haase
v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). Federal
district courts are courts of limited jurisdiction, and it is
“presumed that a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994). Thus, the plaintiff bears
the burden of establishing jurisdiction by a preponderance of
the evidence. Moran v. U.S. Capitol Police Bd., 820
F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992)). “When ruling
on a Rule 12(b)(1) motion, the court must treat the
plaintiff's factual allegations as true and afford the
plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Jeong Seon Han v.
Lynch, 223 F.Supp.3d 95, 103 (D.D.C. 2016) (quoting
Delta Air Lines, Inc. v. Export-Import Bank of U.S.,
85 F.Supp.3d 250, 259 (D.D.C. 2015)) (internal quotation
marks omitted). Those factual allegations, however, receive
“closer scrutiny” than they would in the Rule
12(b)(6) context. Id. Also, unlike when evaluating a
Rule 12(b)(6) motion, a court may consider documents outside
the pleadings to evaluate whether it has jurisdiction.
See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d
1249, 1253 (D.C. Cir. 2005). If the court determines that it
lacks jurisdiction, the court must dismiss the claim or
action. Fed.R.Civ.P. 12(b)(1), 12(h)(3).
“To
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In analyzing
a 12(b)(6) motion, the Court will construe the complaint
liberally in favor of the plaintiff and will grant the
plaintiff “the benefit of all inferences that can be
derived from the facts alleged, ” but the Court need
not accept legal conclusions or inferences unsupported by the
facts alleged. Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994); see also Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); Ctr.
for Responsible Sci. v. Gottlieb, 311 F.Supp.3d 5, 8
(D.D.C. 2018). The Court will grant a motion to dismiss only
where a plaintiff's “well-pleaded factual
allegations, ” even if true, do not “plausibly
give rise to an entitlement to relief.” Iqbal,
556 U.S. at 679.
In
analyzing the merits of Congressional Accountability Act
(CAA) claims, “courts in this jurisdiction consistently
have read the CAA to incorporate Title VII as well as other
remedial federal statutes and, thus, have applied case law
related to underlying remedial federal statutes, such as
Title VII, in analyzing claims brought under both the
antidiscrimination and antiretaliation provisions of the
CAA.” Harrison v. Office of the Architect of the
Capitol, 68 F.Supp.3d 160, 167-68 (D.D.C. 2014)
(collecting cases).
III.
ANALYSIS
OOC
raises both jurisdictional and merits-based challenges to
Wigfall's claims. The Court addresses each of
Wigfall's four counts in turn. As noted, because
Wigfall's complaint does not specify which acts are
alleged to form the basis of which counts, the Court
identifies and analyzes potential theories of liability on
which Wigfall's complaint could conceivably rest.
A.
Count I: Failure to Accommodate
1.
Jurisdiction
For
subject-matter jurisdiction to exist in a CAA case, a
plaintiff must have satisfied the CAA's three-step
process: (1) request counseling with OOC within 180 days of
the alleged violation; (2) request mediation within 15 days
after receiving notice of the end of counseling; and (3) file
a complaint between 30 and 90 days after receiving notice of
the end of mediation. Blackmon-Malloy v. U.S. Capitol
Police Bd., 575 F.3d 699, 702 (D.C. Cir. 2009). OOC
argues that there is no subject-matter jurisdiction over
Wigfall's failure-to-accommodate claim because
“[t]here is no allegation that she completed counseling
and mediation on this claim.” Def.'s Mot., Dkt. 36
at 10; see also Blackmon-Malloy, 575 F.3d at 705
(“[I]t is apparent from the plain terms of the text
that Congress intended counseling and mediation to be
jurisdictional requirements.”). But Wigfall alleges
that she “discussed the issues contained
above”-including her request for a reasonable
accommodation and OOC's response-in her first request for
counseling on April 25, and that she thereafter completed
remediation. Second Am. Compl. ¶¶ 69-70. She
alleges that she “filed her second request for
counseling as to the continued discrimination and retaliation
that occurred after her first request” on August 22 and
thereafter completed mediation. Id. ¶¶
86-87. And Wigfall's counseling and mediation request
documentation clearly shows that she did, in fact, raise her
failure-to-accommodate claim both times. See
Pl.'s Opp'n Ex. A, Dkt. 37-1 at 10, 13.[4]
OOC
also argues that there is no subject-matter jurisdiction over
claims arising out of any events occurring after April 25
because Wigfall's complaint was filed too early to
include any of the events encompassed in her second round of
counseling and mediation. Def.'s Mot., Dkt. 36 at 12. The
CAA requires that civil actions be filed “not sooner
than 30 days[] after the end of the period of
mediation.” 2 U.S.C. § 1404(b). Wigfall's
second mediation period ended on October 24, 2016, and she
filed her initial complaint on November 23. Compl. ¶ 87;
Dkt. 1. Rule 6(a) of the Federal Rules of Civil Procedure,
which governs computation of time for “any statute that
does not specify a method of computing time, ”
instructs courts to “exclude the day of the event that
triggers the period”-here, the date mediation ended,
October 24-and to “include the last day of the
period”-here, the day the complaint was filed, November
23. Fed.R.Civ.P. 6(a)(1). That makes 30 days between the end
of mediation and the filing of the complaint: 7 in October
and 23 in November.
OOC
nevertheless argues that § 1404 “creates a 30-day
moratorium” period and that complaints filed on the
30th day are too early. Def.'s Mot., Dkt. 36 at 13. This
is a misreading of the statute, which states that complaints
may be filed “not sooner than 30 days[] after
the end of the period of mediation.” 2 U.S.C. §
1404(b) (emphasis added). Excluding the trigger date and
including the final date-as Rule 6(a)(1) requires-makes
November 23 the 30th day after the end of the mediation
period. And Wigfall filed her complaint on November
23, not sooner than November 23. Cf. Halcomb v.
Office of the Senate Sergeant-at-Arms, 563 F.Supp.2d
228, 238 ...