Smith v. De Novo Legal, LLC , 905 F. Supp. 2d 99 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD B. SMITH, :
:
Plaintiff, : Civil Action No.: 12-296 (RC)
:
v. : Re Document No.: 28
:
DE NOVO LEGAL, LLC :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION TO DISMISS
I. INTRODUCTION
The plaintiff in this matter alleges that he was subjected to a hostile work environment
and retaliation in violation of Title VII and 42 U.S.C. § 1981. Now before the court is the
defendant’s motion to dismiss. For the reasons explained below, the court will dismiss the
plaintiff’s hostile work environment claim but allow his retaliation claim to proceed to discovery.
II. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
The plaintiff is a white contract attorney who alleges that he suffered racial
discrimination at the hands of his black co-workers. The plaintiff’s employment only lasted for
three months. 3d Am. Compl. ¶ 2. The plaintiff’s claim revolves around a handful of awkward
interactions with his co-workers whenever their conversation turned to the subject of race. For
instance, one day at work, a co-worker stated, “I voted for Obama because of the melanoma [sic]
in his skin. I voted for Obama because he is black.” The plaintiff claims that he was “humiliated
and intimidated.” Although another co-worker told him that it was just a joke, the plaintiff
remained offended and humiliated by their laughter. Id. ¶¶ 3–4. A few days later, another co-
worker asked about the plaintiff’s heritage. The plaintiff said that he was of English/Irish stock.
The co-worker responded by indicating that the plaintiff had African roots, “because everyone is
from Africa.” According to the plaintiff: “This was an attempt to establish African heritage as
superior to my heritage. Again, I felt humiliated and intimidated.” Id. ¶ 5. Later, the plaintiff
was speaking with a co-worker regarding the inflammatory comments of a New Black Panther
who had once stated: “You want freedom? You will have to kill some crackers. You’re going to
have to kill some of their babies!” Another co-worker (somewhat ambiguously) interjected:
“That is every day in America.” The plaintiff interpreted this “to be a threat of violence.” He
maintains that he felt “shocked and scared.” Id. ¶ 6.
At some point, the plaintiff was accused of making racist remarks. Id. ¶ 8. In a
conversation with his supervisor, the plaintiff denied the accusation and insisted that he was the
victim—not the perpetrator—of racial discrimination. Id. The supervisor did not investigate the
plaintiff’s allegation, however. Instead, the supervisor asked the plaintiff to change his seating.
Id. ¶ 11. The plaintiff insists that he was nevertheless subjected to further acts of racial hostility.
For instance, one day the plaintiff went to use a communal computer and he found the web
browser open to a website called “Black Snob.” Id. ¶ 12. In addition, a co-worker asked the
plaintiff if he had any black friends. When the plaintiff refused to answer, the co-worker moved
to the other side of the office and sat with several other black co-workers. Id. ¶ 13. The plaintiff
“felt isolate [sic] and humiliated.” Id. Approximately one month after he complained of racial
discrimination to his supervisor, the plaintiff was fired. Id. ¶ 17.
III. ANALYSIS
A. Legal Standard for a Motion to Dismiss Under Rule 12(b)(6)
All that the Federal Rules of Civil Procedure require of a complaint is that it contain a
“short and plain statement of the claim” in order to give the defendant fair notice of the claim
and the grounds upon which it rests. FED. R. CIV. P. 8(a)(2), see Erickson v. Pardus, 551 U.S.
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89, 93 (2007). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes
the factual allegations of the complaint to be true and construes them liberally in the plaintiff’s
favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It
is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25,
28–29 (D.D.C. 2010).
Nevertheless, “[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, 677 (2009) (internal quotation marks omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” are therefore
insufficient to withstand a motion to dismiss. Id. A court need not accept a plaintiff’s legal
conclusions as true, id., nor must the court presume the veracity of legal conclusions that are
couched as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
B. Hostile Work Environment (Count I)
A plaintiff may establish a violation of Title VII by proving that the employer created or
condoned a discriminatorily hostile or abusive work environment.1 Casey v. Mabus, 2012 WL
2951372, at *4 (D.D.C. July 20, 2012); see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64–
67 (1986); Gary v. Long, 59 F.3d 1391, 1395 (D.C. Cir. 1995). Discrimination in this form
occurs “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and
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The plaintiff’s 42 U.S.C. § 1981 claim is assessed under the same legal standard. Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1114 n.3 (D.C. Cir. 2000).
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create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(citation and internal quotation marks omitted). To determine whether a hostile work
environment existed, the court must examine all the circumstances of a plaintiff’s employment,
including: the frequency of the discriminatory conduct, its severity, whether it was threatening
and humiliating (or was merely offensive), and whether it unreasonably interfered with the
employee’s work performance. Harris, 510 U.S. at 23. But it is clear that “‘simple teasing,’
offhand comments, and isolated incidents (unless extremely serious)” will not constitute a hostile
work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). These standards for judging
hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility
code.’” Id. (quoting Oncale, 523 U.S. at 82).
In light of this demanding standard, the court concludes that the plaintiff has not set forth
a plausible claim to relief. First of all, the court doubts that the defendant’s alleged conduct
could be characterized as “frequent.” It instead appears that the plaintiff was exposed to a
handful of unwelcome comments. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002)
(noting that “a few isolated incidents do not amount to actionable harassment”); Roof v. Howard
Univ., 501 F. Supp. 2d 108, 114 (D.D.C. 2007) (same). It does not appear, based on the
plaintiff’s allegations, that the workplace was “permeated with discriminatory intimidation,
ridicule, and insult.” See Harris, 510 U.S. at 21 (emphasis added); Baloch v. Kempthorne, 550
F.3d 1191, 1201 (D.C. Cir. 2008) (concluding that the plaintiff’s “assertion of pervasive and
constant abuse is undermined by the sporadic nature of the conflicts”). If anything, the alleged
conduct could only be deemed “frequent” because the plaintiff lists each and every incident that
he found to be uncomfortable. Some of these statements were innocuous: for example, the
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plaintiff was asked if he had any black friends. 3d Am. Compl. ¶ 13. Other acts were not
directed at the plaintiff: for example, the plaintiff complains that he stumbled upon a website
called “Black Snob,” but it is not alleged that this act targeted him. See Lester v. Natsios, 290 F.
Supp. 2d 11, 31 (2003) (noting that “[c]onduct directed at others rather than at plaintiff . . . is less
indicative of a hostile work environment”).
At the heart of the plaintiff’s complaint, then, is the allegation that he was subjected to a
few offhand comments: to wit, a co-worker’s perplexing comment regarding the New Black
Panther Party, another co-worker’s comment on President Obama’s skin tone, or another’s wry
observation that all humans are descended from ancestors in Africa. 3d Am Compl. ¶¶ 5–6. The
court cannot conclude that these comments are severe enough to trigger liability under Title VII.
For even if these incidents were indecorous, “a lack of racial sensitivity does not, alone, amount
to actionable harassment.” Faragher, 524 U.S. at 787. Even if the plaintiff’s sensibilities were
offended by the remarks, the “[m]ere utterance of an . . . epithet which engenders offensive
feelings in an employee” does not constitute a hostile work environment. Id. Title VII is not
meant to impose a “civility code” on the workplace. Oncale, 523 U.S. at 82. Viewed in their
totality, these “offhand comments” and “isolated incidents” are not sufficiently severe to trigger
Title VII’s protections. Id. at 788. Finally, the plaintiff complains that he was asked to change
his seating, but such a trivial inconvenience does not give rise to a viable claim. See Casey v.
Mabus, 2012 WL 2951372, at *4 (“The plaintiff’s exclusion from the planning and presentation
of training courses were, at best, obnoxious discourtesies and, at worst, manifestations of
organizational dysfunction. But in either case, these allegations fall far short of the extreme
behavior contemplated by the protections of the hostile work environment doctrine.”).
Accordingly, the court will grant the defendant’s motion to dismiss Count I.
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C. Retaliation (Count II)
To prove unlawful retaliation under Title VII, an employee must establish the following
three elements: first, that he engaged in protected activity; second, that he was subjected to
adverse action by the employer; and third, that there existed a causal link between the adverse
action and the protected activity. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).2 The
defendant has not challenged the plaintiff’s allegation that he engaged in protected activity. The
plaintiff’s allegations also satisfy the second element because termination is undoubtedly an
adverse employment action. Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009). The only
remaining element is causation, which may be inferred—especially at the pleading stage—when
the retaliatory act follows close on the heels of the protected activity. Here, the plaintiff alleges
that his employment was terminated only a month after he complained of racial discrimination.
The timing is suspicious enough for the court to infer causation. See Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273–74 (2001) (noting that close temporal proximity may give rise to an
inference of causation); Stone-Clark v. Blackhawk, Inc., 460 F. Supp. 2d 91, 98 (D.D.C. 2006)
(concluding that a one-month lapse between protected activity and retaliation could give rise to
an inference of causation). Thus, the plaintiff has adequately stated a prima facie case of
retaliation.
The defendant argues that the plaintiff has not alleged that he was fired by someone who
knew about the plaintiff’s protected activity. See Jones v. Bernanke, 557 F.3d 670, 679 (D.C.
Cir. 2009); Newton v. Office of the Architect of the Capitol, 840 F. Supp. 2d 384, 400 (D.D.C.
2
The legal standard for the plaintiff’s 42 U.S.C. § 1981 claim is identical. CBOCS West., Inc. v.
Humphries, 553 U.S. 442, 457 (2008); see Fair Emp. Council v. BMC Mktg. Corp., 28 F.3d 1268,
1279–80 (D.C. Cir. 1994) (“Implicit in § 1981 . . . is a cause of action protecting people from
private retaliation for . . . exercising their own § 1981 rights.”).
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2012) (granting summary judgment on the plaintiff’s retaliation claim because “[t]he person
taking the allegedly retaliatory actions must have knowledge of the protected activity in order to
retaliate for the activity”). But it would be premature to dismiss on this ground, for the plaintiff
is not required to plead each and every element of his prima facie case. Bryant v. Pepco, 730 F.
Supp. 2d 25, 28–29 (D.D.C. 2010). In addition, the defendant argues that the plaintiff was fired
because “his project had ended.” At this early stage of the litigation, it is hard to see why this
vaguely worded statement should insulate the defendant from liability. Perhaps the defendant is
hinting it had a legitimate, non-discriminatory reason for its acts, but that is a fact-sensitive
inquiry that can only be undertaken after discovery has run its course. See Gill v. Mayor of
District of Columbia, 2007 WL 1549100, at *4 (D.D.C. May 25, 2007) (denying the defendant’s
motion to dismiss and concluding that “defendants are jumping ahead to the evidentiary standard
established by McDonnell Douglas rather than the liberal pleading standard at the motion to
dismiss stage”). Moreover, the abrupt fashion in which the plaintiff was terminated, see 3d Am.
Compl., Ex. 1 (“Unfortunately the project has ended for you and today was your last day. We
will be sending your personal belongings to the address listed on file with us.”), suggests that
there may be more to this story than the simple ending of a term of employment.
In sum, the plaintiff alleges that he complained of racial discrimination to his supervisor,
and shortly thereafter he was fired with little explanation. These allegations are detailed enough
to withstand the defendant’s motion. See Arafi v. Mandarin Oriental, 2012 WL 2021889, at *8
(D.D.C. June 6, 2012) (concluding that a plaintiff had plausibly alleged a Title VII retaliation
claim even though it was “far from a model of clarity”). Accordingly, the court will deny the
defendant’s motion to dismiss Count II.
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IV. CONCLUSION
For the aforementioned reasons, the court will grant in part and deny in part the
defendant’s motion. An order consistent with this memorandum opinion is separately issued this
21st day of November, 2012.
RUDOLPH CONTRERAS
United States District Judge
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