Farrington v. Mayorkas ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SYLVIA E. FARRINGTON,
Plaintiff,
v.
Civil Action No. 21-3240 (BAH)
ALEJANDRO MAYORKAS,
Chief Judge Beryl A. Howell
Secretary of Homeland Security,
Defendant.
MEMORANDUM OPINION
Plaintiff Sylvia Farrington is a former employee for the Federal Emergency Management
Agency (“FEMA”), a subagency of the Department of Homeland Security (“DHS”). She was fired
in 2015, but only after she filed two complaints with the Equal Employment Opportunity
Commission (“EEOC”)—one six years before her termination and one two years prior—alleging
claims of race and sex discrimination against her employer. Asserting unlawful retaliation for
filing EEO complaints, plaintiff has now sued the DHS Secretary, Alejandro Mayorkas, in his
official capacity, under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42
U.S.C. § 2000e et seq. Defendant moves to dismiss, claiming that plaintiff failed to allege
sufficient facts to plausibly infer that she was fired because of her prior protected EEO activity.
For the reasons below, defendant’s motion to dismiss is granted without prejudice.
I. BACKGROUND
The relevant factual and procedural background is summarized below.
A. Factual Background
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Plaintiff began working for the FEMA in 1996, Am. Compl. ¶ 1, ECF No. 17, and, in 2005,
was dismissed from her position as Branch Chief in Orlando, Florida, id. ¶¶ 15-16. She
successfully complained to the EEOC, alleging discrimination based on race, sex, and retaliation
for prior protected activity, id. ¶ 16, resulting in an Administrative Law Judge (“ALJ”) award of
“numerous remedies, including backpay, compensatory damages, and that she be returned to her
position within 60 days” of the order, id. ¶ 17. Despite the ALJ’s order, DHS did not return
plaintiff to her old position as Branch Chief but instead demoted her to “Trainee” status,
“thrust[ing]” her into financial hardship in the process. Id. ¶ 19-20.
Plaintiff’s luck went from bad to worse. In August 2012, plaintiff’s credit check for a
government travel credit card returned an outstanding debt of $65,000 to Chase Bank. Id. ¶¶ 21-
24. That same month, DHS personnel sent plaintiff a letter, “requesting information regarding an
‘issue of concern’ in her credit report” regarding that debt. Id. ¶ 24. Plaintiff explained that the
debt was a result of both unlawful business practices by Chase Bank and financial hardships caused
by DHS. Id. ¶¶ 25, 28. Sometime in 2012, her debt with Chase Bank was resolved in plaintiff’s
favor. See id. ¶ 28. Plaintiff repeatedly notified the Department of Homeland Security that her
debt had been resolved. Id. ¶¶ 29, 43. Nonetheless, on May 3, 2013, the Chief of DHS’s Personnel
Security Branch—who was aware of plaintiff’s prior EEO activity—issued a “Final Fitness
Determination” finding her “unfit for federal service.” Id. ¶ 31. On August 12, 2013, plaintiff
filed a formal complaint of discrimination with the EEOC. Id. ¶ 33.
Plaintiff remained employed until she was terminated on May 28, 2015 by her supervisor
Johanna Pastrana. Id. ¶¶ 37, 40. Patricia Silva, a Human Capital Officer, allegedly advised
Pastrana to immediately terminate plaintiff “without any prior warning(s) or other progressive
notice(s) of sequential disciplinary actions.” Id. ¶ 41. Pastrana and Silva were both allegedly
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aware of her previous EEO activity. Id. ¶¶ 39, 42. Plaintiff appealed her termination on June 5,
2015, presenting evidence that “the discrepancy in her credit report was due to Defendant’s refusal
to abide by the” order issued by the ALJ, id. ¶ 43, but this termination appeal was denied on
September 22, 2015, id. ¶ 44. According to plaintiff, DHS “acted with malice, in bad faith, and in
reckless disregard of Ms. Farrington’s federally protected civil rights.” Id. ¶ 46.
B. Procedural History
On December 10, 2021, Plaintiff filed the instant lawsuit against DHS, alleging a Title VII
violation for retaliation for prior EEO activity, Compl. ¶¶ 1, 43-44, ECF No. 1, and she filed an
Amended Complaint on March 30, 2022, see generally Am. Compl. Defendant timely moved to
dismiss the Amended Complaint for failing to allege sufficient facts supporting plaintiff’s claim
that her termination was based on retaliation for protected EEO activity. Def.’s Mot. to Dismiss,
at 4 (“Def.’s Mot.”), ECF No. 19. With the parties having completed their briefing, defendant’s
motion is now ripe for resolution.
II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a]
plaintiff need not make ‘detailed factual allegations,’” but the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” VoteVets
Action Fund v. McDonough, 992 F.3d 1097, 1104 (D.C. Cir. 2021) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). A facially plausible claim pleads facts that are not “‘merely consistent
with’ a defendant’s liability” but that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir.
2012). Consequently, “a complaint survives a motion to dismiss even ‘if there are two alternative
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explanations, one advanced by [the] defendant and the other advanced by the plaintiff, both of
which are plausible.’” VoteVets Action Fund, 992 F.3d at 1104 (quoting Banneker Ventures, LLC
v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)).
In deciding a motion under Rule 12(b)(6), the court must consider the whole complaint,
accepting all factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555; see
also Atchley, v. AstraZeneca UK Limited, et al., 22 F.4th 204, 210–11 (D.C. Cir. 2022). Courts
do not, however, “assume the truth of legal conclusions, nor do [they] ‘accept inferences that are
unsupported by the facts set out in the complaint.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015) (alteration in original) (citation omitted) (quoting Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728, 732 (D.C. Cir. 2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also id. at
687 (explaining that a failure to allege any of a claim’s elements beyond “a sheer possibility that
a defendant acted unlawfully” results in a dismissal).
III. DISCUSSION
Title VII forbids an employer from retaliating against an employee because the employee
engaged in protected activity by opposing unlawful employment practices or by bringing
discrimination charges under Title VII. See 42 U.S.C. § 2000e-3(a); see also Jeffries v. Barr, 965
F.3d 843, 860 (D.C. Cir. 2020) (noting that Title VII restricts the government “from retaliating
against employees for asserting their Title VII rights.”). “Claims of retaliation under Title VII are
governed by the same McDonnell-Douglas burden-shifting analysis applicable to discrimination
claims[,]” Iyoha v. Architect of the Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973)). “Under this framework, [plaintiff] bears
the initial burden of establishing a prima facie case for retaliation, which [s]he can meet by
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showing ‘(1) that [s]he engaged in statutorily protected activity; (2) that [s]he suffered a materially
adverse action by h[er] employer; and (3) that a causal link connects the two.’” Id. (quoting Jones
v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)); see also Allen v. Johnson, 795 F.3d 34, 38–39
(D.C. Cir. 2015) (same); McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012) (same).
Plaintiff has satisfactorily pled the first two elements of her retaliation claim: She engaged in
protected activity by filing an EEO complaint, and she was subject to an adverse personnel action
when she was eventually fired. See Holbrook v. Reno, 196 F.3d 255, 263 (D.C. Cir. 1999).
Defendant’s sole contention is that plaintiff cannot plead the third element of her retaliation
claim, namely that DHS fired her because of her protected EEO activity. Def.’s Mot. at 4. Even
if those responsible for dismissing plaintiff knew of her prior EEO activity and failed to give her
warnings prior to her termination, defendant argues that plaintiff has not satisfied her burden
because (1) mere knowledge is insufficient to support a plausible inference of retaliation,
particularly considering the significant time gap between plaintiff’s protected activity and the
adverse action; and (2) a failure to issue prior warnings evinces retaliation only if it violates an
employer policy. Id. at 4–6. Defendant is correct.
For starters, a plaintiff must state allegations beyond the employer’s mere knowledge of a
protected activity. See, e.g., Brown v. Mills, 674 F. Supp. 2d 182, 197 n.8 (D.D.C. 2009) (“[M]ere
knowledge of . . . protected acts is not sufficient to allow a jury to infer that [the] acts were
motivated by retaliation.”); Barry v. U.S. Capitol Guide Bd., 636 F. Supp. 2d 95, 106–07 (D.D.C.
2009) (“[T]he plaintiff must submit proof beyond mere knowledge about protected activity and
speculation that [defendant] harbored retaliatory animus[.]”); see also Iyoha, 927 F.3d at 574
(explaining that “weak evidence of temporal proximity to show that the [defendant’s] decisions
were motivated by a desire to retaliate against [the plaintiff] . . . does not, without more, raise an
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inference of retaliation”). “[P]ositive evidence beyond mere proximity is required to defeat the
presumption that the proffered explanations are genuine,” see Woodruff v. Peters, 482 F.3d 521,
530 (D.C. Cir. 2007), and a lengthy gap between the protected activity and termination also
weakens support for causation, see Holbrook, 196 F.3d at 263 (explaining that the plaintiff must
show both that the employer had knowledge of the protected activity and that the adverse action
took place shortly thereafter); Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (holding that
“two and one-half months” of a gap between the protected activity and termination is not sufficient
for a retaliation claim).
As in Brown v. Mills and Barry v. U.S. Capitol Guide Board, the mere fact that Pastrana
and Silva knew about plaintiff’s prior EEO activity is not enough to show that she was terminated
because of that activity. Any plausible connection between her protected activity and her
termination is further weakened because of the lack of temporal proximity: She filed her first and
second EEO complaints six and two years prior to her termination, respectively, far longer than
the two-and-a-half months that the D.C. Circuit deemed insufficient to plead an inference of
causation in Taylor v. Solis. See also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001)
(citing with approval cases holding three- and four-month gaps to be insufficient, and holding that
an adverse action “20 months later suggests, by itself, no causality at all.”). 1
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Plaintiff’s reliance on Casole v. Johanns, 577 F. Supp. 2d 138 (D.D.C. 2008), see Pl.’s Opp’n to Def.’s Mot.
to Dismiss at 7, ECF No. 20, is misplaced. Although Casole looked past the fact of a five-year gap between when the
plaintiff first filed his complaint and the defendant fired him, the court did so because the plaintiff was engaging in
other EEO-protected activities close to his termination. Id. at 140. Plaintiff says her case is similar because her case
“lagged on for years, not only due to the long EEOC process, but also appeals and subsequent lawsuits[,]” but she
does not show when that legal process culminated in her Amended Complaint. Regardless, even if her termination
was proximate to the end of her administrative process, she has not offered additional evidence or facts to defeat the
presumption that FEMA terminated her for a non-discriminatory reason. See Woodruff, 482 F.3d at 530.
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In opposition, plaintiff first asserts that she has satisfied her pleading requirements by
pleading a bare, conclusory allegation of causation, see Pl.’s Opp’n to Def.’s Mot. to Dismiss
(“Pl.’s Opp’n”) at 5–6, ECF No. 20, but that flatly contradicts binding Supreme Court precedent.
Plaintiff’s reliance on cases like Vance v. Chao, which holds that a Title VII retaliation plaintiff
may plead “causation simply by alleging that the adverse actions were caused by her protected
activity[,]” 496 F. Supp. 2d 182, 187 (D.D.C. 2007) (citing ACLU Found. of S. Cal. v. Barr, 952
F.2d 457, 467 (D.C. Cir. 1991)), uses caselaw that predates the Supreme Court’s decision in Bell
Atlantic Corporation v. Twombly. Plaintiff must proffer facts that at least give rise to the plausible
inference of causation, rather than just plead a naked and conclusory claim that causation is
satisfied.
Next, plaintiff contends that the following factual allegations about DHS—(1) failing to
restore her to her previous position as Branch Chief after she filed her initial EEO complaint, (2)
subjecting her to an unwarranted credit inquiry, and (3) terminating her without prior warnings
after she had resolved her debt—support a plausible basis to show she was fired because of her
prior EEO activity. Pl.’s Opp’n at 5–6. On these facts alone, plaintiff’s causation argument cannot
stand.
The mere fact that FEMA “failed to return Farrington to her [former] position” as Branch
Chief, and as she alleges the ALJ required, also cannot support an inference of causation because
plaintiff cannot link the failure to reinstate her to her decision to file an EEO complaint. 2 Title
VII retaliation claims follow a but-for causation standard, and it is axiomatic that a plaintiff cannot
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Plaintiff’s allegation that the ALJ directed FEMA to reinstate her to the position she previously held as
Branch Chief is belied by the administrative record. Attach. A, Def.’s Mot. Dismiss Am. Compl., Decision & Order
at 66, ECF No. 19-1 (explaining that FEMA was only required to place plaintiff in “a comparable managerial
position”); see also Owens v. BNP Paribas, S.A., 897 F.3d 266, 273 (D.C. Cir. 2018) (“Public records are subject to
judicial notice on a motion to dismiss when referred to in the complaint and integral to the plaintiff’s claim.”).
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satisfy that standard if the defendant would have taken the same adverse action absent the protected
activity. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013) (quoting William Keeton
et al., Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“[A]n action ‘is not regarded as a
cause of an event if the particular event would have occurred without it.’”). Plaintiff’s suggestion
that her first EEO complaint led to her demotion, which led to her financial difficulties, which then
led to her decision to take out a large loan, which in turn caused her firing, requires too many
logical leaps to support an inference of causation. She cannot plausibly plead that her termination
would not have happened were it not for her protected EEO activity.
Plaintiff’s reliance on the fact that she did not receive prior warnings before her termination
is no help to her either. Unless the employer has a policy that requires warnings for termination,
the lack of prior warnings also does not support a plausible inference of retaliation. See Rand v.
CF Indus., Inc., 42 F.3d 1139, 1145 (7th Cir. 1994) (“Rand’s reliance on CFI’s policy is misplaced
because it does not state or imply that CFI is obliged to communicate problems before it decides
to discharge an employee.”); Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1291 (10th Cir. 2013)
(cleaned up) (“[W]here progressive discipline is entirely discretionary, and the employer did not
ignore any established company policy in its choice of sanction, the failure to implement
progressive discipline is not evidence of pretext.”). Nowhere does plaintiff plead that DHS has a
policy of warning its employees that an outstanding debt may prompt termination, so a reasonable
jury could not necessarily infer that DHS deviated from a typical practice of issuing disciplinary
warnings in the context of her termination.
Plaintiff makes three additional arguments, but none are persuasive to avoid dismissal.
First, she says that FEMA unfairly raised concerns about her debt on her credit report, particularly
considering that her bank violated North Carolina law when issuing that debt and engaged in
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“unfair and unlawful predatory lending practices” when doing so. Pl.’s Opp’n at 7; see Am.
Compl. ¶¶ 25, 28. Second, she argues that the bank ultimately resolved the matter in her favor, so
her termination from FEMA must have been pretextual. Pl.’s Opp’n at 6; see Am. Compl. ¶¶ 24-
30. Third, she claims that she was “promptly terminated in 2015” after “there was a change in her
supervisors.” Pl.’s Opp’n at 7; Am. Compl. ¶¶ 37, 40.
As to the first argument, even if plaintiff’s bank broke state law in issuing the debt to her,
she provides no facts to suggest that FEMA’s concerns about her debt were accordingly worthless
or that the debt itself was invalid. Nor was FEMA required to take plaintiff’s explanations for
granted when determining that she was unfit for service. Her prompt termination after the
supervisor switch, by itself, cannot support an inference of causation because an adverse action
alone, “without more, is not proof of illegal discrimination or retaliation.” See Wiley v. Glassman,
511 F.3d 151, 158 (D.C. Cir. 2007). Even when viewed in their best light, plaintiff’s allegations
do not support the sufficiency of a retaliatory action for a protected activity.
IV. CONCLUSION
For the reasons set forth above, plaintiff’s Amended Complaint is dismissed without
prejudice. An Order consistent with this Memorandum Opinion will be filed contemporaneously.
Date: November 9, 2022
__________________________
BERYL A. HOWELL
Chief Judge
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