Washington v. District of Columbia Housing Authority , 170 F. Supp. 3d 234 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEITH WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Case No. 15-1144 (RJL)
)
DISTRICT OF COLUMBIA )
HOUSING AUTHROITY, ) F I l_ E D
) \
and ) MAR 2 1 2016
) clerk. u.s. District & Bankrup¢y
RICHARD WHITE, ) courts for the District of Columb¢;
) \
Defendants. )
{”
MEMO NI§M OPINION
Plaintiff Keith washington filed a Complaint in the Superior Court of the District
of Columbia ("D.C. Superior Court") against the District of Columbia Housing Authority
("DCHA" or "the agency") and Richard White, alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000(@)
et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621
et seq., and the District of Columbia Human Rights Act of 1977 ("DCHRA"), D.C. Code
§§ 2-1401.()1 et seq. Notice of Removal Ex. 1 1111 1-2 [Dkt. #l] [hereinafter "Complaint"].
Additionally, plaintiff asserts District of Columbia common law claims against defendants
regarding his separation from the DCHA. Compl. l. Currently before the Court is
defendants’ Motion to Dismiss plaintiffs claims pursuant to Federal Rules of Civil
Procedure l2(b)(l) and l2(b)(6). Defs.’ Mot. to Dismiss [Dkt. #6]. Upon consideration
l
of the parties’ pleadings, the relevant law, and the portions of the record identified below,
the Court GRANTS partial summary judgment in favor of defendants and GRANTS, in
part, and DENIES, in part, defendants’ Motion to Dismiss for the following reasons.
BACKGROUND
Plaintiff Keith washington worked for the DCHA as a photographer from March
15, 1998 to March ll, 20l5. Compl. 1111 l()~l l, 63. In February 2014, defendant Richard
White became the DCHA’s director of public affairs and plaintiffs supervisor.
Compl. 1[ 34. On June lO, 20l4, plaintiff filed a complaint with the DCHA’s human
resources office alleging defendant White had created a hostile work environment by
repeatedly disregarding, disrespecting, and verbally abusing plaintiff. Compl. 11 3; Defs.’
Reply Ex. l-A, at 2 [Dkt. #10-1]. The DCHA then underwent a reduction in force ("RIF")
and reorganization. Compl. 1I47(d)-(e). On February 9, 2015, plaintiff was notified that
his position was to be abolished. Compl. ‘H 27. Plaintiff declined an offer to move to a
different position within the agency that came with a lower salary, Compl. 1[ 48, and was
accordingly separated from the DCHA, Compl. ‘i[ 52. Plaintiff was 47 years old at the time.
Compl. 11 6l. On March 6, 20l5, plaintiff filed an Equal Employment Opportunity
Commission ("EEOC") Charge of Discrimination with the District of Columbia Office of
Human Rights, alleging age discrimination in violation of the ADEA. Defs.’ Mot. to
Dismiss Ex. 7.
Plaintiff filed this Complaint in D.C. Superior Court on June 8, 20l5. Notice of
Removal 11 l. On July 17, 2015, defendants removed this case to federal court pursuant to
28 U.S.C. § 1441 on the grounds that plaintiff had alleged violations of federal law-
2
not that she was replaced by but that she was "dz'sadvantaged in favor of a younger
person.") (emphasis added).
Indeed, as plaintiff argues, his factual allegations regarding his ADEA claim are
sufficient to survive a motion to dismiss. Pl.’s Mem. l0. Plaintiff stated he is 47 years of
age and that he therefore falls within the ADEA’s protected class. Compl. 11 6l. He claims
to have been "eminently qualified" for his position and provides details regarding his
credentials, experience, and the positive feedback he received from~ supervisors.
Compl. 11 62. Plaintiff alleges that on March l l, 2015, his position was abolished and that
his pension and earnings were negatively affected. Compl. 11 68, 70. He further claims
"the RlF served as a mere pretext to terminate [him] because of his age," Compl. 11 67, that
defendants intended to discriminate against him based on his age, Compl. 11 69, and that
other DCHA employees outside of the ADEA’s protected class were treated more
favorably than he was, as they were not discharged in the RIF, Compl. 11 64. Finally,
plaintiff claims that after his position was abolished, defendant White told him directly,
"[T]oo bad you didn’t fit in." Compl. 11 69, Accepting these allegations as true, they "‘ give
339
the defendant[s] fair notice of what [his] . . . claim is and the grounds upon which it rests,
Twombly, 550 U.S. at 555 (quoting Conley v. Gz`bson, 355 U.S. 4l, 47 (1957)), and give
plaintiffs ADEA claim facial plausibility by including "factual content that allows the
court to draw the reasonable inference that the defendant[s are] liable for the misconduct
ll
alleged," Iqbal, 556 U.S. at 678. I must, therefore, DENY defendants’ motion to dismiss
plaintiff’ s ADEA claim.é
CONCLUSION
Thus, for the foregoing reasons, the Court GRANTS summary judgment in favor of
the defendants as to plaintiffs common law claims, GRANTS defendants’ motion to
dismiss as to plaintiff’ s Title VII and DCHRA claims, and DENIES defendants’ motion to
dismiss as to plaintiff’ s ADEA claim. An order consistent with this decision accompanies
this Memorandum Opinion.
6 Defendants also argue the union-negotiated settlement agreement "fully and finally resolve[ed] all claims
[plaintiff] may have against the DCHA related to his separation" and that he is therefore precluded from
bringing his discrimination claim in court. Defs.’ Mem. 25. The purported settlement agreement is not
referenced in the Complaint. Defendants attached it as an exhibit to their Motion. Defs.’ Motion to Dismiss,
Ex. 5. Evaluation of this argument would require the Court to consider matters outside of the pleadings
and convert this portion of defendants’ Motion to one for summary judgment. Mackz`nac Tribe,
87 F. Supp. 3d at l39. P1aintiff maintains defendant has improperly requested this Court resolve factual
disputes at the motions to dismiss stage regarding the RIF and requests discovery. Pl.’s Mem. 5. lt would
therefore be unfair and premature to convert to summary judgment here, because both sides should be given
"an opportunity to present a fully developed record" on the circumstances surrounding the RlF. Search v.
Uber Techs., Inc., No. 15-257, 2015 WL 5297508, at *3 (D.D.C. Sept. l0, 2015).
12
namely Title VII and the ADEA. Notice of Removal ‘{Hl 2~3. Counts I through IV are
common law claims over which the Court exercises supplemental jurisdiction. See 28
U.S.C. § l367(a). Count I is promissory estoppel, alleging plaintiff would not have stayed
at the DCHA had he not been led to believe his job was secure. Compl. W 16~25. Count
ll is constructive discharge, claiming plaintiff chose not to accept reassignment because he
could no longer tolerate defendant White’s pervasive harassment. Compl. 1l‘ll26-39.
Count llI is intentional and malicious interference with an implied employment contract;
plaintiff alleges defendant White carried out a successful campaign to terminate plaintiffs
employment, which was waged using tactics such as refusing to allow plaintiff the
resources necessary to do his job, verbally abusing plaintiff, misleading superiors into
thinking plaintiff was not performing well, and ultimately by ensuring plaintiffs position
was eliminated in the RIF. Compl. W 40-52. In Count IV, retaliatory discharge, plaintiff
claims defendant White had his position abolished in the RIF. Compl. W 53-59.
Throughout his common law claims, plaintiff alleges defendant White’s conduct was
motivated by a "personal vendetta" against plaintiff and by a desire to eliminate plaintiffs
salary from the department of public affairs’ budget, giving defendant White additional
funds to employ his own friends. Compl. w 43, 48, 55, 57.
In Count V, plaintiff alleges age discrimination in violation of the ADEA, claiming
defendants used the RIF as a means to discriminate against him on the basis of his age.
Compl. 1111 60-70. Outside of the Complaint’s enumerated counts, plaintiff also claims
defendants discriminated against him because of his age in violation of the DCHRA and
Title VII. Compl. \Hl l-2.
STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(6)
A complaint must contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A motion to dismiss is warranted
when a complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P.
l2(b)(6). Under Rule l2(b)(6), a court must dismiss a plaintiffs complaint if it does not
"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).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Ia’.; see also Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual
allegations must be enough to raise a right to relief above the speculative level[.]").
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’_‘that the
pleader is entitled to relief."’ Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
When analyzing a plaintiff’ s claims, the Court must "treat the complaint’s factual
allegations as true" and "grant plaintiff the benefit of all inferences that can be derived
from the facts alleged." Sparrow v. Um`tedAir Lines, Inc., 216 F.3d llll, l l 13 (D.C. Cir.
2000) (internal quotation marks omitted). But "the court need not accept inferences drawn
by plaintiff[] if such inferences are unsupported by the facts set out in the complaint. Nor
must the court accept legal conclusions cast in the form of factual allegations." Kowal v.
MCI Commc’ns Corp., l6 F.3d l27l, 1276 (D.C. Cir. 1994). Finally, the Court "may
4
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."
EEOC v. St. Frcmcis Xavz`er Parochz`al Sch., 117 F,3d 621, 624 (D.C. Cir. 1997).
II. Federal Rule of Civil Procedure 56
When a defendant presents a non-jurisdictional argument that a plaintiff failed to
exhaust administrative remedies, that argument is an affirmative defense. Bowa'en v.
Uniled States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing Brown v. Marsh, 777 F.Zd 8, 13
(D.C. Cir. 1985)). The defendant bears the burden of producing evidence demonstrating
non-exhaustion Id. The plaintiff must then rebut the defendant’s evidence or "prov[e]
facts supporting equitable avoidance of the defense." Ia’. 1f a district court refers to
materials outside the pleadings in resolving a 12(b)(6) motion alleging non-exhaustion of
administrative remedies, it must convert the motion to dismiss into one for summary
judgment and may provide the parties an opportunity to present evidence in support of their
positions. See Fed. R. Civ. P. 12(d); Kim v. Unz'ted States, 632 F.3d 713, 719 (D.C. Cir.
2011); see also Mackz`nac Trz'be v. Jewell, 87 F. Supp. 3d 127, 139 (D.D.C. 2015) (even
without providing notice of potential conversion, "where both parties have cited documents
or provided evidence outside the pleadings with respect to the issue of exhaustion, a court
may fairly convert a motion to dismiss for lack of exhaustion to a motion for summary
judgment under Rule 56") (internal quotation marks omitted). "[A] district court can
consider a summary judgment motion when it is satisfied that the parties are not taken by
surprise or deprived of a reasonable opportunity to contest facts averred outside the
pleadings and the issues involved are discrete and dispositive." Hamz`lton v. Gez`thner, 743
F. Supp. 2d l, 8 (D.D.C. 2010) (quotations and citation omitted).
Summary judgment is proper where "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although the burden is on the
movant to show that there is no dispute of material fact, the non-moving party also bears
the "burden of producing in turn evidence that would support a jury verdict." Ana’erson v.
Lz`berly Lobby, Inc., 477 U.S. 242, 256 (1986). The non-moving party "may not rest upon
mere allegation or denials of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial." Ia’. The court must accept as true the evidence of, and
draw "all justifiable inferences" in favor of, the party opposing summary judgment. Ia’. at
255. A genuine issue exists only where "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." ]d. at 248.
DISCUSSION
I. Exhaustion of Administrative Remedies
Defendants argue plaintiff was required to pursue his common law claims
administratively under the District of Columbia’s Comprehensive Merits Personnel Act
("CMPA") before filing a complaint in court. Defs.’ Mot. to Dismiss Ex. l, at ll-l3
[Dkt. #6] [hereinafter "Defs.’ Mem."]. The CMPA "establish[es] impartial and
comprehensive administrative or negotiated procedures for resolving employee
grievances." D.C. Code § l-60l.02(a)(5). "With few exceptions, the CMPA is the
exclusive remedy for a District of Columbia public employee who has a work-related
6
complaint of any kind." Rol)inson v. District of Columbz`a, 748 A.2d 409, 411 (D.C. 2000).
Court "is not an alternative forum in this scheme, but rather serves as a last resort for
l
reviewing decisions generated by CMPA procedures." Ia'. (intemal quotation marks
omitted).
Defendants frame their CMPA exhaustion argument as implicating the Court’s
subject-matter jurisdiction Defs.’ Mem. 10~13. While the District of Columbia courts
treat the CMPA’s exhaustion requirement as jurisdictional, see, e.g., Robinson, 748 A.2d
at 411 n. 4, our Circuit Court has not decided whether federal courts should follow suit or
whether they should treat a failure to exhaust remedies under the CMPA as a prudential
concern, see Johnson v. District ofColuml)ia, 552 F.3d 806, 810 n.2 (D.C. Cir. 2008); see
also Avocaa’os Plus, Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (distinguishing
between prudential and jurisdictional concepts of exhaustion). l\/lirroring our Circuit
Court’s approach in Johnson, I find the exhaustion requirement applies regardless of
whether it "is better understood as jurisdictional or nonjurisdictional in federal court." 552
F.3d at 81(), n.2; see also Payrze v. D.C., 592 F. Supp. 2d 29, 35 (D.D.C. 2008)
("[F]ederalism and comity considerations favor the application of exhaustion requirements
regardless of how they are characterized.") (internal quotation marks omitted).
Because I decline to wade into the thicket of the CMPA exhaustion requirement’s
jurisdictional nature, I will construe defendants’ motion to dismiss plaintiff’ s common law
' While the CMPA covers virtually all work-related complaints, "it is not the remedy for discrimination
complaints, such as those arising under Title VII." Duranl v. District of Columbia, 932 F. Supp. 2d 53, 67
(D.D.C. 2013) (citing King v. Kidd, 640 A.2d 656, 664 (D.C. 1993)); see also Coleman v. District of
Columl)ia, 80 A.3d lO28, 1033 r\.7 (D.C. 20l3) ("The CMPA does not foreclose claims arising under the
[DCHRA].").
claims as arguing plaintiffs have failed to state a claim. Johnson v. District of Columbia,
368 F. Supp. 2d 30, 36 (D.D.C. 2005), a]j"a’, 552 F.3d 806 (D.C. Cir. 2008) (a plaintifffails
to state claims where he does not "demonstrate that a necessary precondition to judicial
review of those claims has been satisfied"). The Court notes, however, that both defendants
and plaintiff have attached exhibits to their briefings to support their arguments regarding
CMPA exhaustion. Given that both sides, represented by counsel, filed and rely on exhibits
to support their arguments on this issue, I am satisfied they had a reasonable opportunity
to present evidence and will thus convert defendant’s Motion to Dismiss the common law
claims to a motion for partial summary judgment. See Mackinac Tribe, 87 F. Supp. 3d at
139.
Plaintiff does not dispute that his common law claims are governed by the CMPA.Z
For such claims, "the CMPA procedure must be the first remedy for District employees."3
Owens v. District of Columbia, 923 F. Supp. 2d 241, 249 (D.D.C. 2013). Plaintiff argues
he pursued administrative remedies by filing his hostile work environment claim with
human resources in June 20l4. Pl.’s Mem. in Opp’n l~5 [Dkt. #7] [hereinafter "Pl.’s
2 lt is important to recall plaintiff’ s common law claims do not allege discrimination or retaliation for
opposition to discriminatory practices. See Compl. 1111 43, 48, 55, 57.
3 The Court need not resolve the matter of which administrative remedies specifically plaintiff was required
to pursue under the CMPA. Compare D.C. Code §§ l-605.02(3); -6l7.04(b)(l) (vesting jurisdiction in the
D.C. Public Employee Relations Board to hear allegations that a union engaged in unfair labor practices)
with id. §§ l-624.04, .O8 (providing employees who receive notice they have been identified for separation
from their positions through a RlF may file an appeal with the D.C. Office of Employee Appeals ("OEA")).
Since at the very minimum "a substantial question exist[s] as to whether" plaintiffs common law claims
fall "within the ambit of the CMPA, [plaintiff] was . . . required in the first instance to invoke the CMPA’s”
procedures. White v. District of Columbz`a, 852 A.2d 922, 925 (D.C. 2004). The question of which
administrative body, if any, has jurisdiction is then one to be answered first at the administrative level. Cf
z`d. at 926 ("The determination whether the OEA has jurisdiction is quintessentially a decision for the OEA
to make in the first instance.") (intemal quotation marks omitted).
8
Mem."]. However, even though some of the alleged facts overlap, the claims asserted in
plaintiffs Complaint concern his separation from the DCHA in 2015 and are therefore
distinct from his June 2014 hostile work environment claim. Plaintiff does not contend to
have pursued any CMPA remedies for his present common law claims, and therefore his
failure to exhaust is undisputed. See Mpoy v. Fenty, 870 F. Supp. 2d 173, 179
(D.D.C. 2012). Nor does plaintiff argue any exception to the exhaustion rule applies or
any equitable doctrine counsels against strict enforcement of the exhaustion requirement
in regards to the claims raised in his Complaint." 1 accordingly GRANT partial summary
judgment in favor of defendants as it applies to plaintiffs common law claims.5
II. ADEA Claim
Defendants claim that plaintiff fails to state an ADEA claim without arguing that he
failed to exhaust his ADEA remedies. Defs.’ Mem. 24-25; Defs.’ Reply l2. Under the
ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge . . . or
" Plaintiff does object to how the DCHA handled his July 2014 hostile work environment complaint,
alleging that the agency failed to release the report of its investigation or a final ruling and that the DCHA’s
failure to conclude the proceeding constitutes unreasonable delay under Telecommunications Research &
Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. l984). Pl.’s Mem. 3-5. Plaintiff fails to explain, however,
how the status of his July 2014 claim bears on his duty to exhaust CMPA remedies for the claims related
to his separation from the DCHA in 2015. 1 therefore fail to see this contention’s relevance.
5 Defendants further argue plaintiff failed to exhaust administrative remedies for his Title VII and DCHRA
claims. Defs.’ Mem. 13~14. Defendants also maintain that the Complaint’s "mere passing references" to
Title VII and the DCHRA are insufficient to meet Rule 8(a)(2)’s requirement that a complaint contain a
"short and plain statement of the claim showing that the pleader is entitled to relicf." Defs.’ Mem. 15
(quoting Fed. R. Civ. P. 8(a)(2)). Defendants rely only on plaintiffs Complaint and EEGC Charge, and
therefore 1 will analyze the issue under Rule 12(b)(6) and not Rule 56. See Laughlin v. Holder,
923 F. Supp. 2d 204, 209 (D.D.C. 2013) (stating a plaintiffs formal administrative complaint is a public
record subject to judicial notice). Unfoitunately, plaintiff makes no attempt to respond to these arguments
in his opposition. Therefore, 1 do not consider their merits, but instead find them to be conceded. 1 shall
therefore dismiss the Title VII and DCHRA claims. See Hopkins v. Women’s Dz`v., Gen. Bd of Global
Mz'nistries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (finding it proper to consider arguments conceded when
not addressed in the opposition to a motion to dismiss).
9
5
otherwise discriminate against any individual . . . because of such individual’s age.’
29 U.S.C. § 623(a)(l). In essence, defendants argue that plaintiff’ s allegations are
insufficient to "create a prima facie claim of age discrimination" because plaintiff failed to
identify a specific individual outside of the ADEA’s protected class who was treated more
favorably than he in the RIF or to allege he was replaced by someone outside the protected
class. Defs.’ Mem. 25; Defs.’ Reply 12. Defendants’ exclusive citation to summary
judgment cases, see Defs.’ Mem. 24, however, is misplaced because at the motion to
dismiss stage, "a plaintiff need not plead facts establishing a prima facie case" in order to
state an ADEA claim. Montgomery v. Omnz'sec Int’l Sec. Servs., Inc., 961 F. Supp. 2d 178,
183 (D.D.C. 2013); see also Brady v. O/j‘z`ce ofSergeant atArms, 520 F.3d 490, 493 (D.C.
Cir. 2008). Instead, a plaintiff must only "plead sufficient facts to show a plausible
entitlement to relief." Fennell v. AARP, 770 F. Supp. 2d 118, 127 (D.D.C. 2011); cf
Montgomery, 961 F. Supp. 2d at 183 ("There are two essential elements of an age
discrimination claim under the ADEA: (l) that the plaintiff suffered an adverse
employment action, (2) because of the plaintiffs age."). Defendants cite no authority
stating a plausible ADEA claim must contain the precise details or elements they argue are
missing here. But see, e.g., Sparrow, 216 F.3d at 1114 (reversing district court’s dismissal
of an ADEA claim for failure to specifically "point[] to any similarly situated employees
who were given preferential treatment over him"); Matuskey v. Mea’lantic Healthcare Grp.,
No. 96-1594, 1997 WL 161952, at *4 A(D.D.C. Apr. 3, 1997) (plaintiff alleging
discrimination through the elimination of her position in a RIF must ultimately establish
10