Wigfall v. Office of Compliance

          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 ...