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Barber v. District of Columbia Government

United States District Court, District of Columbia

August 13, 2019




         Plaintiff Claudia Barber served as an Administrative Law Judge (“ALJ”) for the District of Columbia Office of Administrative Hearings (“OAH”) for eleven years, from August of 2005 until August of 2016, when she was terminated from that position. (See, e.g., First Am. Compl. (“Barber I Compl.”), ECF No. 11, ¶ 8; Compl. (“Barber II Compl.”), No. 17-cv-1680, ECF No. 1-3, ¶ 7.)[1] In two consolidated complaints, Barber brings eleven claims against five defendants related to her tenure and eventual termination.[2] Generally speaking, Barber alleges that despite meeting or exceeding performance expectations throughout her service as an ALJ at OAH, she experienced discrimination based on her race and color, including repeated denials of promotions. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7-18.) Barber also claims that her supervisors retaliated against her between November of 2014 and January of 2016, after she made both formal and informal complaints to management about racial discrimination and other concerns. (See Barber I Compl. ¶¶ 60-62; Barber II Compl. ¶¶ 8-18, 38-39, 55-56.)

         Before this Court at present are two motions that Defendants have filed, which, collectively, seek to dismiss all of the counts in Barber's two consolidated complaints for various reasons. (See Dist. Defs.' Mot. to Dismiss Pl.'s Compl. with Prejudice (“Dist. Defs.' Mot.”), ECF No. 25; Def. Jarashow's Mot. to Dismiss (“Jarashow's Mot.”), ECF No. 26.) As explained below, this Court concludes that the Defendants' motions must be GRANTED IN PART AND DENIED IN PART. In short, the Court will dismiss all of the counts that pertain to constitutional and tort claims, but will permit the counts that relate to employment discrimination and retaliation to proceed.


         The facts recited in this opinion are gleaned from Barber's consolidated complaints and must be accepted as true, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); notably, they need not be recounted in full for the purpose of the instant ruling. It suffices to say here that Barber alleges that despite meeting or exceeding performance expectations throughout her tenure as an ALJ at OAH, she experienced discrimination based on her race and color-including repeated denials of promotions-as well as retaliation when she made complaints about her supervisors' allegedly discriminatory practices. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7- 18.)

         Three examples illustrate some of the many alleged instances of discrimination and retaliation that are recounted in Barber's consolidated complaints. Barber alleges that in November of 2014, she complained to Wanda Tucker, the interim Chief ALJ, that “African American ALJs routinely received less complex and less serious cases than their Caucasian counterparts.” (Barber II Compl. ¶ 8.) Approximately three days after complaining to Tucker, Barber allegedly was not assigned to a Principal ALJ (“PALJ”) position to fill a vacancy, even though she had been routinely assigned to fill such vacancies over the previous nine years. (Id.) Several months later, when another PALJ position opened up, Tucker allegedly “instituted unreasonable selection criteria in an effort to disqualify and retaliate against [Barber]” and to “discourage and eliminate African American ALJs from applying for the open position[.]” (Id. ¶ 13.) Indeed, Barber alleges that when she expressed her interest in the position, Tucker required her to complete “the equivalent of a literacy test, which . . . Barber found humiliating.” (Id.) And eventually Paul Handy, a Caucasian male, was selected for the PALJ position. (Id.) Thereafter, in January of 2016, OAH Chief ALJ Eugene Adams “announced a new plan for the fair selection of PALJs” whereby the OAH would “promote those ALJs who volunteer to be PALJs alphabetically[, ]” and under this new system, Barber was allegedly the next ALJ slated to be promoted. (Id. ¶ 18.) However, Barber alleges that Adams promoted a Caucasian woman over her instead, ignoring the selection plan. (Id.) According to Barber's pleadings, this “was the third time a less qualified Caucasian ALJ was selected for a PALJ position over . . . Barber.” (Id.)

         Due to Barber's concerns with her workplace environment and the limited opportunities for advancement as an ALJ, Barber began to consider running for a position as a judge on the Circuit Court for Anne Arundel, Maryland. (See Id. ¶ 16.) She sought guidance from the District's Commission on Selection and Tenure (“COST”) and the Board of Ethics and Government Accountability with respect to her ability to run for the Maryland judicial position without resigning from her position as an ALJ in the District of Columbia. (See Barber I Compl. ¶¶ 9-10.) After allegedly receiving mixed responses from some District employees and no responses from others, Barber filed a Certificate for Candidacy in Maryland on January 20, 2016, listing her party affiliation as “Judicial.” (See Id. ¶¶ 9-13.)

         In February of 2016, Defendant Jarashow, a Maryland attorney and former Anne Arundel County Circuit Court judge “who was supporting other candidates for the vacant circuit judge positions[, ]” informed Chief ALJ Adams of Barber's candidacy. (See Id. ¶ 15.) Jarashow allegedly maintained that two provisions of the District's Code of Ethics for ALJs required Barber to resign from her ALJ position in DC upon becoming a judicial candidate elsewhere. (See id.) Defendant Chief ALJ Adams subsequently placed Barber on administrative leave with pay, and after a COST hearing in July of 2016, Barber's employment as an ALJ was terminated for an ethics violation on August 2, 2016. (See Id. ¶¶ 21, 32-33.)

         Barber filed a complaint against all Defendants in this Court on April 6, 2017, which she amended on May 22, 2017 (“Barber I”). (See Compl., ECF No. 1; Barber I Compl.) The operative complaint in Barber I contains seven counts: two constitutional claims against the District alleging violations of procedural and substantive due process; a constitutional claim against the District pursuant to section 1983 of Title 42 of the United States Code (“Section 1983”); a civil conspiracy claim brought under section 1985 of Title 42 of the United States Code (“Section 1985”) against all Defendants; a claim under the D.C. Whistleblower Protection Act (DCWPA), D.C. Code §§ 1-615.51-1-615.59, against the District Defendants; and two common law tort claims against Jarashow. (See Barber I Compl. at 12-22.)[3] On July 19, 2017, Barber filed a second and separate complaint against the District and Adams in the Superior Court of the District of Columbia (“Barber II”); Defendants removed this complaint to federal court on September 11, 2017. (See Not. of Removal, No. 17-cv-1860, ECF No. 1.) The complaint in Barber II includes four counts alleging workplace discrimination brought pursuant to the D.C. Human Rights Act (DCHRA), D.C. Code §§ 2-1401.01- 2-1411.06, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. (See Barber II Compl. at 12-17.) This Court granted the District Defendants' motion to consolidate the two cases on October 17, 2017, and ordered all Defendants to file omnibus responses to both complaints. (See Order Granting Mot. to Consolidate, ECF No. 22, at 4-5.)

         On November 11, 2017, Defendants filed two motions to dismiss Barber's consolidated complaints. The Court held a lengthy motion hearing on May 9, 2019, after which it took the motions under advisement. (See May 9, 2019 Hr'g Tr. (“Hr'g Tr.”).)


         As the Court explained to the parties during the motion hearing, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Therefore, “[t]o survive a 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 and citation omitted). The plaintiff is not required to provide “detailed factual allegations, ” but rather must only plead enough facts to “raise a right to relief above the speculative level” and to “nudge[] their claims across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 555, 570 (internal quotation marks and citation omitted). At the motion-to-dismiss phase, a court must “construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged, ” Browning, 292 F.3d at 242 (alterations, internal quotation marks, and citation omitted), but it need not “accept legal conclusions cast as factual allegations[, ]” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012).

         The Court also explained that the eleven counts that Barber had brought between the two complaints could be logically grouped into three categories: employment claims (Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV); constitutional claims (Barber I Compl., Counts I, II, III, and IV); and tort claims (Barber I Compl., Counts VI and VII). (See Claims Handout, ECF No. 42.) The Court asked the parties to address these claim categories, in turn, during the motion hearing.


         Barber's complaints contain five counts alleging employment discrimination and retaliation under the DCHRA, the DCWPA, and Title VII of the Civil Rights Act. (See Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV; see also Claims Handout.) All of these claims survive Defendants' motion to dismiss, in at least some form, as explained below.


         With respect to Barber's DCHRA and Title VII discrimination claims (Counts I and III of Barber II), Barber's complaint alleges that she was discriminated against based on her race and color. (See Barber II Compl. ¶¶ 30, 47.) Notably, “[c]ourts in this Circuit ‘have consistently recognized the ease with which a plaintiff claiming employment discrimination can survive . . . a motion to dismiss[, ]'” McNair v. District of Columbia, 213 F.Supp.3d 81, 86 (D.D.C. 2016) (quoting Fennell v. AARP, 770 F.Supp.2d 118, 127 (D.D.C. 2011)). “In other words, the factual detail required to survive a motion to dismiss can be quite limited.” Id. at 86-87 (internal quotation marks and citation omitted). This is because a plaintiff need not prove a prima facie case at the motion-to-dismiss stage: instead, with respect to both Title VII and the DCHRA, “a plaintiff need only allege that she (1) suffered an adverse employment action (2) because of her membership in a protected category.” Id. at 86. Moreover, an “adverse employment action” is any event that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (citations omitted).

         Barber has successfully pleaded her discrimination claims, on the basis of at least the following alleged facts, which, viewed collectively, are sufficient to give rise to a plausible claim of race discrimination: (1) the PALJ position was qualitatively different from the ALJ position because of its supervisory duties (see Id. ¶ 9); (2) PALJs were paid more than ALJs (see id.); (3) less qualified Caucasian ALJs were repeatedly selected for the better-compensated PALJ position over Barber and other more senior African American ALJs (see Id. ¶¶ 12, 18); and (4) on one occasion in February 2016, Barber's non-selection violated an established plan for ALJs to be promoted to PALJs alphabetically (see Id. ¶ 18). Taken together, these facts are sufficient to support an inference that Barber suffered an adverse action when she was not promoted to the qualitatively different and higher-paying PALJ position (see Id. ¶¶ 9, 12, 18, 30, 47), and that this non-promotion was motivated by her race (see Id. ¶¶ 8-13, 18, 30, 47).[4]

         The District Defendants argue that Barber's non-promotion to the PALJ position was not an “adverse action” because, among other things, Barber did not plead that PALJs were paid more at the time of her alleged non-promotions. (See Dist. Defs.' Mot. at 25.) But Barber's complaint alleges that PALJs were paid more than other ALJs for at least some period of time (see Barber II Compl. ¶ 9), and nothing in the complaint suggests that the pay differential changed. “[C]onstru[ing] the complaint liberally, [and] granting [Barber] the benefit of all inferences that can be derived from the facts alleged, ” Browning, 292 F.3d at 242 (internal quotation marks and citation omitted)-as the Court must do at this stage of litigation-it is at least plausible that PALJs were paid more than ALJs throughout Barber's tenure.

         The District Defendants also dispute that the alleged facts demonstrate the requisite causation; specifically, they insist that Barber was not selected as a PALJ according to the alphabetical plan in February of 2016 because she was placed on administrative leave with pay on February 12, 2016. (See Dist. Defs.' Mot. at 26.) However, once again, this contention improperly ignores the Court's duty to accept the allegations of the complaint as true and to construe the complaint liberally at the motion-to-dismiss stage. See Browning, 292 F.3d at 242. Barber's complaint plainly alleges that “[i]n January 2016, Defendant Adams announced a new plan for the fair selection of PALJs” (i.e., the aforementioned plan “to promote those ALJs who volunteer to be PALJs alphabetically”) and also states that the timing was such that “Barber should be the next ALJ to be promoted to PALJ” under this new scheme. (Barber II Compl. ¶ 18.) However, according to the complaint, “[i]n February 2016, Defendant Adams instead promoted a Caucasian ALJ, Sharon Goodie, to PALJ and ignored the selection plan[.]” (Id.) Given this timing, it is at least plausible that the allegedly discriminatory non-selection of Barber in a manner that was inconsistent with the established plan occurred prior to February 12, 2016. Therefore, the District Defendants' motion to dismiss Barber's Title VII and DCHRA discrimination claims will be denied.


         Turning to Barber's retaliation claims, Barber II alleges in Counts II and IV that the District Defendants retaliated against her in violation of the DCHRA and Title VII. (See Id. ¶¶ 38-39, 55-56.) To state a claim for retaliation under Title VII or the DCHRA, a plaintiff “must establish three elements: [(1)] that she made a charge or opposed a[n unlawful] practice . . ., [(2)] that the employer took a materially adverse action against her, and [(3)] that the employer took the action because of her protected conduct.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (citation omitted). The relevant provisions of the DCHRA are generally interpreted consistent with Title VII, see, e.g., Craig v. District of Columbia, 74 F.Supp.3d 349, 368-69 (D.D.C. 2014) (citations omitted); Elhuseeini v. Compass Group USA, Inc., 578 F.Supp.2d 6, 10 n.4 (D.D.C. 2008) (collecting cases), and it is well established that the scope of adverse actions for Title VII retaliation claims is broader than it is for discrimination claims because Title VII's “antiretaliation provision . . . is not limited to discriminatory actions that affect the terms and conditions of employment[, ]” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (citation omitted); see also Siddique v. Macy's, 923 F.Supp.2d 97, 107 n.10 (D.D.C. 2013) (explaining that federal courts in this district apply Burlington Northern to DCHRA retaliation claims). Instead, ...

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