Braxton v. First Transit ( 2018 )


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  •                               UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    TEAIRRA BRAXTON,
    Plaintiff,
    Case No. 1:17-cv-02622 (TNM)
    v.
    FIRST TRANSIT,
    Defendant.
    MEMORANDUM OPINION
    Teairra Braxton alleges that First Transit, Inc. fired her for complaining about a
    supervisor’s sexual harassment, failed to provide her proper union representation, and defamed
    her. First Transit seeks dismissal of her claims or, alternatively, an order directing Ms. Braxton
    to provide a more definite statement of her claims. Because Ms. Braxton has not adequately pled
    her improper representation and defamation claims and because all of her claims are untimely,
    the Court will grant First Transit’s motion to dismiss and will dismiss as moot First Transit’s
    alternative motion for a more definite statement.
    I.
    First Transit operates the D.C. Circulator bus system. Compl. Ex. 301 at 3 (ALJ Order
    dated April 18, 2016). Ms. Braxton began working as a bus operator for First Transit on August
    26, 2014. Compl. 2. First Transit terminated her on January 28, 2016, six days after an incident
    between Ms. Braxton and a disruptive passenger on her bus. 1 See Compl. 2; 
    id. Ex. 102
    (Operator’s Accident/Incident Report dated January 22, 2016). According to Ms. Braxton’s
    1
    Between hiring Ms. Braxton in 2014 and terminating her in 2016, First Transit also terminated
    Ms. Braxton in April 2015, reinstated her in September 2015, and suspended her in October or
    November 2015. See Pl.’s Opp. to Def.’s Mot. Dismiss 9, 14-15.
    1
    incident report, the disruptive passenger told her and the other passengers that bus rides should
    be free to African-Americans because of slavery and racial inequality. 
    Id. at 1-2.
    2 When the
    passenger asked Ms. Braxton if she agreed and confronted her about working for white people as
    an African-American, Ms. Braxton said that she was happy with her job. 
    Id. at 2.
    The passenger
    then chastised her in vulgar terms and told her that she would never accomplish anything or get
    anywhere by working for “the white man.” 
    Id. She told
    him that he could not tell her that,
    adding that she did not care who she worked for and was happy with her life. 
    Id. After another
    passenger posted a recording of the incident on Twitter, First Transit placed
    Ms. Braxton on unpaid administrative leave pending an investigation into what it described as
    “an aggressive verbal confrontation with [a] passenger while operating the vehicle.” 
    Id. Ex. 101
    (Notice of Personnel Action dated January 22, 2016). Six days later, First Transit terminated
    Ms. Braxton for “inappropriate behavior towards a passenger, in addition to [a] safety violation
    which is against First Transit policy.” 
    Id. Ex. 200
    (Letter to Ms. Braxton from First Transit
    dated January 28, 2016). First Transit’s termination letter cited four alleged violations of
    company policy:
    •   11.01 (Disloyalty) - Conducting oneself in such a manner that the conduct
    would be detrimental to the interest or reputation of the Company.
    •   11.01 (Safety) Violation of any safety rule or practice, or violation of operating
    rule or procedures that could put an employee or others in imminent danger or
    could result in bodily injury or damage to Company property. (State and federal
    regulations prohibit the operation of transit buses when passengers are forward
    of the white or yellow line). 3
    2
    This was after the passenger tried to pay for his ride with a public transit card that did not
    work, and after Ms. Braxton said she would cover his fare since it was cold outside. 
    Id. at 1.
    3
    An Administrative Law Judge who determined Ms. Braxton’s eligibility for unemployment
    benefits after her termination noted that the passenger stood in front of the white safety line for
    about 30 seconds and that Ms. Braxton did not stop the bus during that time. 
    Id. Ex. 301
    at 7
    (ALJ Order dated April 18, 2016).
    2
    •   11.02 (Personal Conduct) - Discourteous or inappropriate attitude or behavior
    to passengers, other employees, or members of the public. Disorderly conduct
    during working hours.
    •   10.03 (Vehicle Operation) - Driving the bus with only one hand on the wheel
    while engaging in a heated verbal debate with a passenger while other
    passengers were on the [vehicle] is considered “reckless operation[.]”
    
    Id. Ms. Braxton
    alleges that this explanation of her firing hides First Transit’s real motive to
    retaliate against her for two complaints that she made against a former supervisor who allegedly
    asked her to sleep with him many times and promised to look out for her if she did. Compl. at 2;
    
    id., Exs. 203-204
    (Operator’s Accident/Incident Reports dated October 27, 2015 and October 30,
    2015, respectively). 4 She tried to get help from the Equal Employment Opportunity
    Commission, but the Commission sent her a letter explaining that it was closing her case because
    her charge “was not timely filed with EEOC” and because she “waited too long after the date(s)
    of the alleged discrimination to file [her] charge.” 
    Id. Ex. (Dismissal
    and Notice of Rights,
    EEOC Charge No. 570-2017-01910, dated September 6, 2017).
    Ms. Braxton also went before an Administrative Law Judge who reviewed First Transit’s
    termination decision to determine Ms. Braxton’s eligibility for unemployment benefits. 
    Id. Ex. 301
    at 2 (ALJ Order dated April 18, 2016). He noted that “[t]he fact that an employee’s
    discharge appears reasonable from the employer’s perspective does not necessarily mean that the
    employee engaged in misconduct” and decided that First Transit had not proven any misconduct
    by Ms. Braxton that would disqualify her from receiving unemployment benefits. 
    Id. at 7.
    4
    Another filing by Ms. Braxton suggests the possibility that First Transit terminated her because
    she refused to pursue her complaint at a time when the company was seeking grounds to fire the
    supervisor in question. Pl.’s Opp. to Def.’s Mot. Dismiss 2, 15-20.
    3
    Ms. Braxton filed a Complaint against First Transit in this Court on December 4, 2017.
    Although the Complaint is sparse, the Court liberally construes it as a claim of race
    discrimination, sexual harassment, and retaliation under Title VII of the Civil Rights Act,
    improper representation by a union representative under Section 301 of the Labor Management
    Relations Act, and defamation under District law. See Compl. at 1. 5 In evaluating these claims,
    the Court also considers the allegations in Ms. Braxton’s Opposition to First Transit’s Motion to
    Dismiss, including the section that she has entitled A More Definite Statement. See Pl.’s Opp. to
    Def.’s Mot. Dismiss 7; see also Richardson v. United States, 
    193 F.3d 545
    , 548 (D.C Cir. 1999)
    (holding that district court should read pro se plaintiff’s filings together).
    II.
    First Transit moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing
    that the Complaint fails to state a claim upon which relief can be granted. To survive a Rule
    12(b)(6) motion, a complaint must contain sufficient factual allegations that, if true, “state a
    claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570
    (2007). Plausibility requires that a complaint raise “more than a sheer possibility that a
    defendant has acted unlawfully.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009). Pleading facts
    that are “merely consistent with” a defendant’s liability “stops short of the line between
    possibility and plausibility.” 
    Twombly, 550 U.S. at 545-46
    . Thus, a court evaluating a motion to
    dismiss for failure to state a claim does not accept the truth of legal conclusions or “[t]hreadbare
    recitals of the elements of a cause of action, supported by mere conclusory statements.” 
    Iqbal, 556 U.S. at 678
    .
    5
    This Court has jurisdiction over Ms. Braxton’s Title VII and Section 301 claims because they
    arise under federal law. See 28 U.S.C. § 1331. It has supplemental jurisdiction over her
    defamation claim as it seems to be part of the same case and controversy. See 28 U.S.C. § 1367.
    4
    That said, the Court construes the Complaint in the light most favorable to the Plaintiff
    and accepts as true all reasonable inferences drawn from well-pled factual allegations. See In re
    United Mine Workers of Am. Emp. Benefit Plans Litig., 
    854 F. Supp. 914
    , 915 (D.D.C. 1994).
    Consideration is limited to “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). The Court construes
    pro se filings liberally, holding them “to less stringent standards than formal pleadings drafted by
    lawyers.” Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007).
    III.
    A.
    Because Ms. Braxton alleges race discrimination, sexual harassment, or retaliation, the
    Court understands the Complaint as an invocation of Title VII. Before suing in federal court, a
    plaintiff must file a charge of discrimination with the Equal Employment Opportunity
    Commission, or EEOC. See 42 U.S.C. § 2000e-5(e), (f)(1). “In the District of Columbia, such
    an EEO charge must be filed within 300 days of the allegedly discriminatory/retaliatory act.”
    Duberry v. Inter-Con Sec. Sys., 
    898 F. Supp. 2d 294
    , 298 (D.D.C. 2012).
    “[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional
    prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject
    to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 
    455 U.S. 385
    ,
    393 (1982). But equitable tolling is warranted only if a plaintiff “shows (1) that [she] has been
    pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way
    and prevented timely filing.” Holland v. Florida, 
    560 U.S. 631
    , 649 (2010); cf. Smith-Haynie v.
    Dist. of Columbia, 
    155 F.3d 575
    , 579-80 (D.C. Cir. 1998) (“The court’s equitable power to toll
    5
    the statute of limitations will be exercised only in extraordinary and carefully circumscribed
    instances.”). This “weighty burden” rests on the Plaintiff even at the motion to dismiss stage.
    See Dyson v. Dist. of Columbia, 
    710 F.3d 415
    , 420-21 (D.C. Cir. 2013) (finding on appeal from
    grant of motion to dismiss that plaintiff had not discharged her burden).
    First Transit moves to dismiss Ms. Braxton’s Title VII claims with prejudice because she
    did not file a timely EEO charge. Def.’s Memo. ISO Mot. Dismiss at 6-9. The EEOC’s letter
    supports this argument by documenting that Ms. Braxton waited too long to file her charge.
    Compl. Ex. (Dismissal and Notice of Rights, EEOC Charge No. 570-2017-01910, dated
    September 6, 2017). 6 And Ms. Braxton’s Opposition appears to concede the untimeliness of her
    charge. Her Opposition references “my late filling [sic] of my complaint.” See Pl.’s Opp. to
    Def.’s Mot. Dismiss 4. If this is a reference to her EEO charge, it expressly concedes the point.
    If it is not, then Ms. Braxton’s Opposition concedes untimeliness by offering no response to First
    Transit’s claim that she filed her EEO charge out of time. See Hopkins v. Women’s Div., Gen.
    Bd. of Glob. Ministries, 
    284 F. Supp. 2d 15
    , 25 (D.D.C. 2003) (“[W]hen a plaintiff files an
    opposition to a dispositive motion and addresses only certain arguments raised by the defendant,
    a court may treat those arguments that the plaintiff failed to address as conceded.”).
    6
    Ms. Braxton’s deadline to file an EEO charge related to her January 28, 2016 termination
    would have been November 23, 2016. See 
    Duberry, 898 F. Supp. 2d at 298
    . Ms. Braxton has
    not stated and the record does not make clear exactly when she filed EEO charges. But the
    second and third pages of her Complaint appear to be a copy of her EEO charge: Although she
    filed her Complaint on December 4, 2017, she signed and dated these pages on July 31, 2017 and
    put a header at the top describing the document as a Charge Letter. See Compl. 2-3.
    6
    Ms. Braxton has offered two possible explanations for the untimeliness of her EEO
    charge. 7 First, Ms. Braxton’s Complaint, which appears to be a copy of her EEO charge, states,
    “I’m just now bringing this matter to your attetion [sic] because of being improperly represented
    by my union rep used for the matter of my termination.” Compl. 2. Second, her Opposition to
    First Transit’s Motion to Dismiss states, “I have attached a copy for the court review a medical
    history I also submitted to first transit at time of employment for more of a factual factor of what
    lead to my late filling of my complaint against first transit [sic throughout].” Pl.’s Opp. to Def.’s
    Mot. Dismiss 4. Ms. Braxton apparently refers to an attachment to her Complaint marked as
    Exhibit 205. This document states that Ms. Braxton has Graves’ disease, which “can cause
    palpitation, rapid heart beats, anxiety, dizziness, sweating, vision problems, irritiability [sic],
    aggitation [sic], mood instability, [and] fatigue.” Compl. Ex. 205 at 1 (Form signed by health
    care provider, dated February 1, 2016). It notes that the condition sometimes caused
    Ms. Braxton to miss work, states that Ms. Braxton needed intermittent leave for medical
    appointments and for times that she felt sick, and suggests that she might need one or two weeks
    off if she had a surgical intervention. 
    Id. at 1-2.
    Neither of Ms. Braxton’s explanations for the untimeliness of her EEO charge shows an
    extraordinary circumstance that would justify equitable tolling. First, Ms. Braxton’s vague claim
    of improper union representation does not state what her union representative did or failed to do
    and does not explain how it delayed her EEO charge. See Compl. 2. Even if Ms. Braxton’s
    representative acted negligently in a way that prevented timely filing of the charge, this would
    not be an extraordinary circumstance sufficient to toll Ms. Braxton’s deadline. See, e.g., Irwin v.
    7
    Neither explanation clearly addresses the timing of her EEO charge, but the Court construes
    them as possible explanations for the untimeliness of the charge. See 
    Erickson, 551 U.S. at 94
    (requiring liberal construction of pro se pleadings).
    7
    Dep’t of Veterans Affairs, 
    498 U.S. 89
    , 96 (1990) (holding that a lawyer’s extended absence
    from his office when the EEOC delivered a notice constituted “a garden variety claim of
    excusable neglect” that did not justify tolling Title VII deadline for his client); Tyler v.
    Henderson, 
    2001 WL 194930
    at *5 (D.D.C. 2001) (refusing to toll Title VII deadline because
    “the untimely district court filing resulted from nothing more than attorney neglect”). Second,
    Ms. Braxton has not shown that her medical condition prevented timely filing since the
    documentation she submitted only shows a need for intermittent breaks from work that would
    not have occupied the entire 300-day period in which she could have filed an EEO charge. See
    Compl. Ex. 205 at 1-2 (Form signed by health care provider, dated February 1, 2016).
    Even if Ms. Braxton had identified extraordinary circumstances that prevented timely
    filing, tolling would only be appropriate if she also showed that she pursued her rights diligently.
    See 
    Holland, 560 U.S. at 649
    . Ms. Braxton has alleged no facts about her efforts to pursue her
    rights during the 300 days that she had to exercise them. The facts that she has alleged certainly
    suggest that she was the victim, not the culprit, of the ugly January 2016 incident.
    Unfortunately, though, they do not show that she can obtain a legal remedy. Because Ms.
    Braxton did not file a timely EEO charge and has not shown grounds for equitable tolling, the
    Court will grant First Transit’s motion to dismiss her Title VII claims of race discrimination,
    sexual harassment, and retaliation. See 
    Dyson, 710 F.3d at 421-22
    .
    B.
    Ms. Braxton’s Complaint asserts that her union improperly represented her. Compl. at 2.
    The Court construes this as a claim for breach of a collective bargaining agreement under
    Section 301 of the Labor Management Relations Act. See 29 U.S.C. § 185. A Section 301 claim
    technically involves two “inextricably interdependent” causes of action—one against the
    8
    employer for breach of the collective bargaining agreement and one against the union for
    breaching its duty of fair representation. DelCostello v. Int’l Brotherhood of Teamsters, 
    462 U.S. 151
    , 164 (1983). “[A] plaintiff must prevail upon [her] unfair representation claim before
    [she] may even litigate the merits of [her] § 301 claim against the employer.” United Parcel
    Serv., Inc. v. Mitchell, 
    451 U.S. 56
    , 67 (1981).
    Ms. Braxton’s conclusory allegation that her union represented her improperly fails to
    state an unfair representation claim against the union, which the Complaint does not even name
    as a defendant. See 
    Iqbal, 556 U.S. at 678
    . The Complaint does not identify the union, describe
    the collective bargaining agreement at issue, or specify how the union breached any duty it owed
    Ms. Braxton. Because Ms. Braxton has not stated an unfair representation claim against the
    union, her Section 301 claim against First Transit cannot go forward. See 
    Mitchell, 451 U.S. at 67
    .
    Ms. Braxton’s Section 301 claim also fails because it is untimely. A plaintiff must bring
    a Section 301 claim based on a union’s unfair representation within six months. 
    DelCostello, 462 U.S. at 172
    . The clock begins to run “from the later of (1) when the employee discovers, or
    in the reasonable exercise of diligence should have discovered, the acts constituting the alleged
    breach by the employer, or (2) when the employee knows or should have known of the last
    action taken by the union which constituted the alleged breach of its duty of fair representation.”
    Watkins v. Comm’cns Workers of Am., Local 2336, 
    736 F. Supp. 1156
    , 1159 (D.D.C. 1990)
    (cleaned up). Ms. Braxton filed this lawsuit on December 4, 2017, roughly 22 months after her
    January 28, 2016 termination. Because she filed the lawsuit well after the six-month limit, her
    Section 301 claim fails.
    9
    C.
    Under District of Columbia law, the elements of a defamation claim are
    (1) that the defendant made a false and defamatory statement concerning the
    plaintiff; (2) that the defendant published the statement without privilege to a third
    party; (3) that the defendant’s fault in publishing the statement amounted to at least
    negligence; and (4) either that the statement was actionable as a matter of law
    irrespective of special harm or that its publication caused the plaintiff special harm.
    Beeton v. District of Columbia, 
    779 A.2d 918
    , 923 (D.C. 2001). “A statement is defamatory if it
    tends to injure the plaintiff in [her] trade, profession or community standing, or lower [her] in the
    estimation of the community.” Moss v. Stockard, 
    580 A.2d 1011
    , 1023 (D.C. 1990).
    Ms. Braxton uses the words “defamation of character” in her Complaint but alleges no
    facts to explain the basis for a defamation claim. Compl. at 2. The Complaint does not specify
    what false and defamatory statement First Transit made about Ms. Braxton, does not specify that
    First Transit published the statement to a third party without privilege, and does not address fault
    or harm. And Ms. Braxton took too long to file any claim based on defamation that led to her
    January 2016 termination. District law requires a plaintiff to bring her defamation claim within
    one year of discovering that a defamatory statement was published to her injury. D.C. Code
    § 12-301(4); see also Wallace v. Skadden, Arps, Slate, Meagher & Flom, 
    715 A.2d 873
    , 882
    (D.C. 1998). As noted above, Ms. Braxton sued roughly 22 months after her termination.
    Because she has not alleged that she discovered any defamation within a year of suing, the Court
    must also dismiss her defamation claim.
    10
    IV.
    Ms. Braxton alleges a disturbing saga of mistreatment at the hands of her employer,
    among others. Nonetheless, for the reasons stated above, the Court is required to grant First
    Transit’s Motion to Dismiss and dismiss as moot First Transit’s Motion for a More Definite
    Statement. A separate Order will issue.
    2018.08.20
    15:27:27 -04'00'
    Dated: August 20, 2018                               TREVOR N. MCFADDEN, U.S.D.J.
    11