ROSEMARY M. COLLYER, United States District Court.
DeBora Burford was a law enforcement officer in the Law Enforcement Unit of the Board of Governors of the Federal Reserve System from 2002 until February 2012. Ms. Burford alleges that she suffered discrimination due to her sex and age and was retaliated against after she asked the Board to investigate the alleged discrimination. She also complains that she was discharged because of false retaliatory charges. She sues Janet L. Yellen, Chair of the Board of Governors, in her official capacity. The Board moves to dismiss the
At the relevant time, Ms. Burford was approximately 50 years old. As a result, she was, and is, protected from employment discrimination based on her sex by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 (2012), and from discrimination based on her age by the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. Both laws also protect employees from retaliation because they engaged in activities in furtherance of equal employment opportunities. 42 U.S.C. § 2000e-3(a) ("Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings"); Gomez-Perez v. Potter, 553 U.S. 474, 479, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008) (holding ADEA 29 U.S.C. § 633(a) precludes retaliation based on the filing of an age discrimination complaint).
Ms. Burford was hired as an officer in the Law Enforcement Unit (LEU) of the Board in December 2002, after a reduction in force at the District of Columbia Department of Corrections (DC DOC) where she had previously been employed as a corrections officer. She gained the rank of senior law enforcement officer and served as a "lead" officer in 2009. While she had earlier filed charges alleging a lack of equal employment opportunity (EEO), this case concerns a series of workplace incidents that began in late 2009 and which Ms. Burford alleges constituted discrimination because of her sex, age, and EEO activity.
Starting in December 2009, Ms. Burford complains that she was repeatedly confronted by a probationary female officer, Shandra Love, who put Ms. Burford in fear for her physical safety. The first of those incidents occurred on December 1, 2009, when Ms. Love, "in a seemingly unprovoked verbal assault," called Ms. Burford a "b_tch." Am. Compl. ¶ 12. Ms. Love has admitted using the epithet to address Ms. Burford at a time when Ms. Love was talking to LEU Sergeant Frank Williams on her cell phone. Id. ¶ 13. "With her cell phone to her ear, Love took what appeared to be an aggressive fighter's stance while [Ms. Burford] sat inside the guard booth bracing for what could have [led] to a physical assault against her." Id. ¶ 15. On a later date, Ms. Love "made unprovoked false accusations that [Ms. Burford] bumped her in the back. . . ." Id. ¶ 24. Ms. Burford alleges that a subsequent incident occurred when Ms. Love falsely claimed that when the two women were in the locker room, Ms. Burford "intentionally brushed [Ms. Love's] hair with her buttocks as Love leaned over her purse," and that Ms. Love then "engaged in a barrage of aggressive obscenities against [Ms. Burford], who in fear of physical attack, continued to face her locker and prepare for dayshift roll call." Id. ¶¶ 28, 30. The Amended Complaint alleges that these "false accusations came after [Ms. Burford] wrote a statement to [the dayshift watch commander, Lieutenant Larence] Dublin alleging that Love was not checking the identifications of vehicle occupants [who] were attempting to enter the Board through the East Court, which was Love's primary responsibility." Id. ¶ 25. Lt. Dublin allegedly did not investigate Ms. Burford's complaints about Ms. Love, and provided false testimony in the later EEO investigation. Id. ¶¶ 21, 22, 23. He also failed to discipline Ms. Love in a manner that Ms. Burford felt appropriate. See id. ¶¶ 18, 21, 23, 33. Both Lt. Dublin and Ms. Love were younger than 40 at the time of these incidents. Ms. Burford alleges that unidentified harassing conduct towards her from Ms. Love and/or Lt. Dublin "became a condition of [her] continued employment." Id. ¶ 35.
For approximately two months between August and October 2010, LEU Administrative Sergeant Michelle Tillery-Fuller consistently assigned Ms. Burford to daily posts that required Ms. Burford to stand for her work shift, carrying "the hefty UP-40 submachine gun, with the weapon's strap painfully digging into Plaintiff's shoulder, when no other LEU officers were forced to endure such abuse." Id. ¶ 44. Ms. Burford alleges that, as a lead officer and one of only two women LEU leads, she was entitled to seated posts typically filled by lead officers, but which Sgt Tillery-Fuller assigned to male non-lead officers. Id. ¶¶ 46, 48. These standing assignments did not result in any decrease in Ms. Burford's pay or other benefits and did not constitute a demotion. Standing assignments are part of lead officer duties; Ms. Burford alleges, however, that she was assigned a disproportionate number of them on every shift for approximately two months, which "was not normal for any LEU officer." Id. ¶ 44. She further alleges that she was "the only female lead officer meeting the ADEA's age limit criteria who had been removed from her lead officer position" and replaced with men who were not lead officers. Id. ¶ 48, and that she was "the only lead officer who had engaged in protected activity at the time of her removal from the Lead Officer Program." Id. ¶ 49. Additionally, the Amended Complaint alleges that Sgt. Tillery-Fuller "stated in her deposition that she doesn't know why [Ms. Burford] wasn't assigned to lead posts" and "only admits to discriminating against [Ms. Burford] after [Sgt. Tillery-Fuller] bec[ame] aggressive and disturbingly upset with Ellen Opper-Weiner," then-counsel to Ms. Burford, during the Sergeant's deposition. Id. ¶ 50. Sgt. Tillery-Fuller "angrily" testified in deposition that she removed Ms. Burford "from the Lead Officer Program . . . because [Ms. Burford] was not communicating with officers, which were false allegations made only by Love and Dublin." Id. ¶ 51. It is alleged that Sgt. Tillery-Fuller knew of Ms. Burford's EEO activities at that time. Id. ¶ 40.
In addition to the standing shift assignments, Ms. Burford alleges that she was discriminated and retaliated against when she was blamed for the release of a confidential document she had written for the Board's use to an outside attorney representing an employee suing the Agency. Id. ¶ 60. On August 26, 2010, Ms. Burford was aggressively questioned by Chief Sauls and Ms. Hardo for approximately an hour. Id. ¶ 66, 72. Both interrogators "claimed that it was [Ms. Burford] who released the document to the non Board [sic] attorney." Id. Ms. Burford complains that Mr. Sauls and Ms. Hargo "threatened to obtain a warrant to seize [Ms. Burford's] home computer. [She] was also
Ms. Burford requested EEO investigations of the above instances of alleged discrimination, and all were ultimately considered, but rejected, by the Equal Employment Opportunity Commission (EEOC) on September 13, 2015, in its review of an Administrative Judge's grant of summary judgment to the Agency. See Mot. to Dismiss Ex. A (EEOC Dec.) [Dkt. 17-1] at 2 ("Upon the required de novo review of the record, we find that the grant of summary judgment was proper.").
Ms. Burford alleges additional instances of discrimination beyond those considered by the EEOC. She alleges that her car was vandalized in September 2010 at her home in Waldorf, Maryland and a note was found that explicitly told her to stop her EEO activity. Am. Compl. ¶¶ 83, 84; see also Opp. [Dkt. 19] Ex. D (sign reading "B_tch your car is just the beginning!!!! Stop the complaints at the Federal Reserve or else you will be next! I hope we are clear on this!"). A second car in Waldorf was also vandalized in September 2010; the second car belonged to former LEU Master Senior Officer Sabrina Bullock, who also had ongoing EEO activity at the Board. Am. Compl. ¶ 85. Ms. Burford alleges that Chief Sauls falsely reported to the Board's Office of Inspector General (OIG) and to Employee Relations that Ms. Burford had herself vandalized both vehicles. Id. ¶ 90.
According to the Amended Complaint, Chief Sauls and OIG Senior Special Agent Albert Pleasant conspired "with malicious intent" in September 2010 to allege that Ms. Burford "had engaged in a fictitious cell phone spoofing scandal," that had caused her to be named as a suspect by law enforcement. Id. ¶ 91. As part of this conspiracy, Agent Pleasant is alleged to have unlawfully obtained Ms. Burford's personal cellular phone records that he and Chief Sauls then shared with non-law-enforcement personnel at the Board. It is further alleged that Agent Pleasant and Charles Country Sheriff's Detective Higgs banged on Ms. Burford's door at about 10:00 p.m. on May 23, 2011; Agent Pleasant attempted to enter by tugging on the storm door; Agent Pleasant reported this incident to the OIG by email; and Agent Pleasant unsuccessfully attempted to have Ms. Burford falsely prosecuted in Stafford County, the District of Columbia, and the District of Maryland "for the fictitiously alleged spoofing scandal." Id. ¶¶ 97-101.
Ms. Burford was terminated on December 8, 2011 for her purported involvement in the cell phone spoofing scandal and for the vandalism on her car and Ms. Bullock's vehicle. Id. ¶¶ 103&104. Her termination was carried out as an alleged "intentional act to humiliate" Ms. Burford, as it occurred where LEU officers reporting for roll call might have observed it. Id. ¶¶ 112-114. The stated reasons for her termination are alleged to be pretextual to hide
Additionally, Ms. Burford argues that Board Senior Counsel John Kuray prevented Mses. Burford and Bullock from adding retaliatory car vandalism to their ongoing EEO complaints "due to the threatening notes referencing the Board that were found at the crime scenes." Id. ¶ 109. She adds that Mr. Kuray "also prevented" her timely claim of wrongful termination "from being added to her ongoing EEO activity" even though it was "submitted to the Board by [her counsel] Ellen Opper-Weiner." Id. ¶ 111.
Finally, Ms. Burford alleges that Board employees retaliated against her by entering false and defamatory allegations in Ms. Burford's personnel file and then providing copies of that file, including the false and defamatory statements, to DC DOC, which prevented Ms. Burford from returning to employment with the Department of Corrections. Id. ¶¶ 115-119.
Acting pro se, Ms. Burford now brings all claims before the Court. The Amended Complaint advances the following counts:
(Count 1) Violations of the ADEA, including harassment and retaliation allegedly committed by Ms. Love and Lt. Dublin (younger than age 40) and Admin. Sgt. Tillery-Fuller (over age 40), and discharge;
(Count 2) Sex-Based Discrimination in violation of Title VII, including harassment and retaliation allegedly committed by Ms. Love, Lt. Dublin and Admin. Sgt. Tillerly-Fuller, and discharge;
(Count 3) Disparate Treatment in violation of both Title VII and the ADEA, including a hostile work environment created by Ms. Love, Chief Dublin and Admin. Sgt. Tillery-Fuller; hostile interrogation by Chief Sauls and Ms. Hargo; release of her cell phone records by Chief Sauls and Agent Pleasant to other Board employees; and termination due to false allegations that Ms. Burford vandalized her own automobile and the automobile of a former Board employee;
(Count 4) Disparate Impact in violation of both Title VII and ADEA involving harsh name calling and various other illegal workplace hostilities;
(Count 5) Pervasive and Objectively Hostile Working Environment, involving deliberate aggression and hostility by Ms. Love, Lt. Dublin and Admin. Sgt. Tillery-Fuller; hostile interrogation by Chief Sauls and Ms. Hargo; dissemination of Ms. Burford's cellular records by Chief Sauls and Agent Pleasant; an effort by Agent Pleasant to force his way into Ms. Burford's home; vandalism of Ms. Burford's car; dissemination of confidential records by Ms. Hargo and Jade Mills-Little to the District of Columbia Department of Corrections and other prospective employers; and dissemination of Ms. Burford's confidential EEO file within the Board by Ms. Hargo and Ms. Mills-Little;
(Count 6) Retaliation Violations Under Title VII and ADEA, including false allegations by Ms. Love and Lt. Dublin;
(Count 7) Whistleblower Retaliation Under 18 U.S.C. § 1831j, involving Ms. Burford's disclosures of violations of clearly established law and abuses of authority that prompted "all of Plaintiff's allegations of retaliation contained within the complaint," Am. Compl. ¶ 258; and
(Count 8) Violations of the District of Columbia's Human Rights Act (DCHRA), DC Code § 2-1402.62 (2012), by numerous named and unnamed Board employees aiding and abetting one another "in orchestrating and executing a massive discriminatory and retaliatory scheme." Am. Compl. ¶ 265.
Defendant has filed a motion to dismiss. See Mot. to Dismiss [Dkt 17]. Ms. Burford opposes the motion [Dkt. 19] and the Board has replied [Dkt. 20]. Ms. Burford has also moved to strike the Board's Motion to Dismiss, [Dkt. 18], which the Board has opposed [Dkt. 21] and to which Ms. Burford has replied [Dkt. 23].
Defendant moves to dismiss Count 8
Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Marcus v. Geithner, 813 F.Supp.2d 11, 15 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
"Because subject matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the Plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim." Id. (citing Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)).
Defendant also moves to dismiss Counts 1-7 for a failure to state a claim under Rule 12(b)(6). A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. A complaint must be sufficient "to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Id. at 570, 127 S.Ct. 1955. A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Id. at 555, 127 S.Ct. 1955. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
In the alternative to its motion to dismiss, the Board moves for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex
In ruling on a motion for summary judgment, the court gives the non-movant the benefit of all permissible inferences that may be drawn from the facts alleged in the complaint, and accepts the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Talavera, 638 F.3d at 308. A nonmoving party, however, must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
Turning to what is certainly litigable, Ms. Burford timely alleged discrimination under Title VII and the ADEA. Both statutes, and others, recognize that discrimination can be shown by disparate treatment, which subjects an employee to unfavorable treatment compared to others due to her race, color, creed, national origin, sex or age. Discrimination can also occur when a facially-neutral policy unfairly affects ("impacts") one or more employees, because of race, color, creed, national origin, sex or age. Ms. Burford asserts discrimination based on her sex under Title VII and discrimination based on her age under the ADEA, relying on both theories of disparate treatment and disparate impact. However, there are insufficient factual allegations in the Amended Complaint to support either theory under Title VII or the ADEA.
In contrast, there are many material facts in dispute which preclude a decision on Ms. Burford's claims of retaliation after she initiated EEO proceedings in August 2010. Therefore, the Board's motion to dismiss will be granted in part and denied in part.
Title VII of the Civil Rights Act of 1964, as amended by Equal Employment Opportunity Act of 1972, prohibits discrimination in the federal workplace, because of an individual's race, color, sex, religion or nationality.
Similarly, the Age Discrimination in Employment Act (ADEA) prohibits discrimination against federal employees based on age. See 29 U.S.C. § 623 (making it unlawful "to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions,
However, there can be significant differences between proving a Title VII case and proving an ADEA case. Title VII recognizes a "mixed-motive" theory of violation in which an employer had both permissible and impermissible reasons for its discriminatory action. See Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2526, 186 L.Ed.2d 503 (2013) (discussing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) and the effect of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m)). A mixed-motive is one in which the employee's protected class (race, color, sex, etc.) "was a motivating factor for [the] employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (emphasis added). Under Title VII, therefore, there are both "single-motive" and "mixed-motive" theories of discrimination. See Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007).
The ADEA is more complicated. The ADEA includes both a general antidiscrimination section, § 623, and a section that covers federal employees, § 633a. The Supreme Court interpreted § 623 in 2009 to preclude a mixed-motive theory of recovery and to require a plaintiff to prove that her age was the "but for" cause of the alleged discrimination. Gross, 557 U.S. at 175-80, 129 S.Ct. 2343. The Court noted that the ADEA was not changed in 1991, when Title VII was amended to codify a mixed-motive theory; the Court, therefore, interpreted the ADEA statutory language to bar a mixed-motive cause of action for age discrimination. Id. at 174, 129 S.Ct. 2343. Specifically, § 623 forbids an adverse employment action "because of" an individual's age. 29 U.S.C. § 623(a)(1); see Gross, 557 U.S. at 176, 129 S.Ct. 2343. The Supreme Court interpreted this to mean that the employee's age must be the "but for" reason (or "because of" reason) for the adverse action. Gross, 557 at 177, 129 S.Ct. 2343. As a result, "[i]t follows, then, that under § 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the `but-for' cause of the employer's adverse action." Id.
Section 633a, however, does not include this "because of" language, and instead simply states that "[a]ll personnel actions . . . shall be made free from any discrimination based on age." The United States Court of Appeals for the District of Columbia Circuit has interpreted that language to allow a mixed-motive theory under § 633a. Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010).
If a plaintiff cannot provide direct evidence of discrimination, courts apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonnell Douglas framework applies as follows: The plaintiff must first make a prima facie case (1) that she is a member of a protected class; (2) that she suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination. Youssef v. FBI, 687 F.3d 397, 401-02 (D.C. Cir. 2012). The burden then shifts to the defendant, which must "articulate some legitimate, nondiscriminatory reason" for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If it does, then the plaintiff must show by a preponderance of the evidence that the reason advanced by the employer was merely a pretext to hide discrimination. Id. If a jury does not credit the employer's permissible motive and finds that the real reason was discrimination, the employee has proved direct discrimination and is entitled to a full award of damages, including backpay, reinstatement, compensatory damages, attorney's fees, and the like. If, however, the jury credits both parties and finds that the employer discriminated against the plaintiff but that it also had a legitimate non-discriminatory reason for its action, the Civil Rights Act of 1991 limits the plaintiff's recovery to a declaratory judgment of discrimination and attorney fees and costs, but no backpay, compensatory damages or reinstatement. Ginger, 527 F.3d at 1345.
To prove a claim of disparate treatment, a plaintiff must first show that she suffered an adverse employment action; and, as relevant here, that the adverse employment action was based on her sex or age. An "adverse employment action" is an established legal term meaning "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). "[N]ot everything that makes an employee unhappy is an actionable adverse action." Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). An employee must "experience[] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (distinguishing between non-actionable "purely subjective injuries," and actionable "objectively tangible harm"). An actionable adverse action "in most cases inflicts direct economic harm." Burlington Indus., 524 U.S. at 762, 118 S.Ct. 2257.
"If a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). Direct evidence of discrimination may entitle a plaintiff to a jury trial irrespective of the employer's defense.
Title VII and the ADEA also protect federal employees from retaliation for having asserted their rights. See 42 U.S.C. § 2000e-16(a); Gomez-Perez v. Potter, 553 U.S. 474, 491, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008) ("§ 633a(a) prohibits retaliation against a federal employee who complains of age discrimination."). Ms. Burford alleges that she was retaliated against because of her protected EEO activities under both statutes. To prove retaliation for protected EEO activities under either statute, an employee must establish three elements: that (1) she made a charge or opposed a practice made unlawful by Title VII or the ADEA; (2) the employer took a materially adverse action against her; and (3) the employer acted "because of" her protected conduct. Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (citing McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012)). After Plaintiff establishes the prima facie case of retaliation, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; see Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) ("A Title VII plaintiff [asserting unlawful retaliation] may raise a preliminary, circumstantial inference of prohibited motive through the burden-shifting framework of McDonnell Douglas Corp.")
Ms. Burford alleges that she engaged in "protected activity" when she complained of discrimination, starting in August 2010, irrespective of whether the discrimination was based on her sex or her age. At the point of a motion to dismiss, the Court need not decide whether an employee must allege, or a jury find, that a specific materially adverse action in retaliation for protected activities was based solely on EEO claims of sex discrimination, solely on EEO claims of age discrimination, or solely on claims of protected EEO activities for any protected status.
What is clear is that retaliatory conduct need not reach the same level of adversity as discriminatory conduct to be actionable. See Mogenhan v. Napolitano, 613 F.3d 1162, 1165-66 (D.C. Cir. 2010) (citing Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 60-61, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). "Title VII's substantive [discrimination] provision and its anti-retaliation provision are not coterminous" because the "scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008) (quoting Burlington N., 548 U.S. at 67, 126 S.Ct. 2405). Retaliatory conduct need be material enough to "dissuade . . . a reasonable worker from making or supporting a charge of discrimination." Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). However, material adversity requires "more than `those petty slights or minor annoyances that often take place at work and that all employees experience,'" because the EEO statutes are not general laws of civil behavior in the workplace. Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405).
Despite this lessor standard, an employee must prove a retaliation claim according to traditional principles of but-for causation. Univ. of Tex. Sw. Med. Ctr., 133 S.Ct. at 2534 (holding that "a plaintiff making a retaliation claim . . . must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer"). Thus, there is no "mixed motive" retaliation. Plaintiff is not, however, required to show that the protected activity was the sole reason for her termination. See McDonald v. Santa Fe
Ms. Burford's claims of disparate treatment fall into two separate categories of alleged activities: those considered by the EEOC and those not.
Ms. Burford alleges discriminatory behavior arising from the conflicts with Ms. Love. These interactions were deeply troubling to Ms. Burford, who attributes many of her later issues to the failure of Lt. Dublin to take any disciplinary action against Ms. Love. See Am. Compl. ¶¶ 18, 19 ("It was unknown to Plaintiff at the time of her disclosure that Love and Dublin had conspired with one another to intentionally create a pervasive and objectively hostile working environment in an effort to force Plaintiff into a constructive discharge due to Plaintiff's sex and age."). Nonetheless, the Amended Complaint contains no factual allegations that these conflicts, or the Board's handling of them, resulted in any "firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Taylor, 350 F.3d at 1293. Ms. Love was a probationary officer with no authority over Ms. Burford, who was a Senior Lead, and neither their conflict, nor any alleged poor handing of the situation by supervisors, resulted in an adverse action affecting Ms. Burford.
Ms. Burford appears to argue that the seven weeks of daily standing assignments made by Sgt. Tillery-Fuller constituted "significantly different responsibilities," but she also acknowledges that standing posts are part of the normal duties of Senior Leads who must share the burden of those assignments. These assignments do not support a charge of disparate treatment due to Ms. Burford's age or sex.
Employers may be liable for discrimination in the workplace if they are advised of discriminatory conduct and do nothing to stop it. Cromer-Kendall v. D.C., 326 F.Supp.2d 50, 63 (D.D.C. 2004) (denying summary judgment where employer knew of disruptive conduct but did not investigate). Therefore, for purposes of the legal analysis of Ms. Burford's allegations of discrimination, the legal issue is whether the Board, through its supervisors, properly handled complaints of discriminatory friction between two employees of different ages. But the Amended Complaint contains no factual allegations that might explain why the incidents between a junior and senior officer constituted more than inter-personal friction. Further, even if Lt. Dublin's handling of the conflict were sufficiently harmful to qualify as an adverse employment action, for which facts are not alleged, the Amended Complaint contains no fact allegations that would tie that his inaction to Ms. Burford's age or the difference between her age and his.
After alleged conflicts with Ms. Love over a period of months, Ms. Burford initiated EEO proceedings, whereupon she alleges she faced retaliation from her supervisors, most particularly Sgt. Michelle Tillary-Fuller. Ms. Burford alleges that her post assignments between August and October 2010 obligated her to stand with a machine gun for her shifts, rather than work at seated posts that, as a lead officer, she was entitled to receive. Ms. Burford's salary was not diminished, she was not demoted, and she was not required to perform duties outside the scope of her position. "Purely subjective injuries, such as dissatisfaction with a reassignment, or public humiliation or loss of reputation, are not adverse actions." Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002) (citations omitted). Ms. Burford has supplied no facts that would suggest that these assignments were motivated in any way by her sex or age, and therefore makes no cognizable claim of discrimination for this issue. However, Ms. Burford alleges that Ms. Fuller knew of Ms. Burford's EEO activity prior to assigning Ms. Burford to these posts. Am. Compl. ¶ 40. Granting Ms. Buford, as non-movant, the benefit of all reasonable inferences from her Amended Complaint, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), it cannot be said that these standing assignments, over many weeks just after protected activity, were not potentially retaliatory. The Court therefore will not dismiss claims of retaliation based on the duration of the standing assignments.
Ms. Burford also alleges that she faced further discrimination during the investigation into the alleged "leak" of a memo which she had written for the Board's purposes. In this instance, the alleged disparate treatment lay in aggressive questioning by Chief Sauls and Ms. Hargo. Indeed, their questions and accusations may have been uncomfortable. Despite that discomfort, there is no evidence of an adverse employment action associated with, or resulting from, that interview. It did not result in administrative leave for Ms. Burford, demotion, discipline, or any other adverse action. Thus, albeit unpleasant, the one-hour interview session did not constitute discriminatory action by the Board on account of Ms. Burford's age, sex or protected activity.
Finally, Ms. Burford alleges a number of further activities that were not considered by the EEOC prior this suit.
Finally, Ms. Buford brings a separate count based on a hostile work environment. A hostile environment consists of multiple acts that "may not be actionable on [their] own" but become actionable due to their "cumulative effect." Nat'l R.R. Passenger Corp., 536 U.S. at 115, 122 S.Ct. 2061. The constituent acts must be "adequately linked" so that they form "a coherent hostile environment claim." Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). For example, they might "involve the same type of employment actions, occur relatively frequently, and [be] perpetrated by the same managers." Id. In addition, the acts must be "of such severity or pervasiveness as to alter the conditions of . . . employment and create an abusive working environment." Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.Cir. 2006). Severity and pervasiveness are determined by reference to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The standard is an objective one. Id. at 21, 114 S.Ct. 367.
When considering the administratively-exhausted claims addressed by the EEOC, the alleged on-going conflicts between Ms. Love and Ms. Burford do not constitute an illegal hostile work environment. The Amended Complaint presents no facts to tie these difficult interpersonal events to age or sex. In addition, the allegations present a series of separate personal conflicts with different employees of the Board, none of which contains a germ of a connection to Ms. Burford's age or gender. While these experiences may have been frustrating for Ms. Burford, the Amended Complaint does not allege legally-cognizable actions that would give rise to a hostile work environment.
Because Ms. Burford has not met her pleading burden for her claims based on disparate treatment and a hostile work environment, Counts 1-3 and 5 will be dismissed.
Facially neutral policies that have a disparate effect on particular groups of employees due, as relevant, to
The Amended Complaint does not identify a facially neutral policy or practice that allegedly led to a disparate impact on a protected class of Board of employees of which Ms. Burford is a member, or articulated what category(ies) of individuals are adversely impacted or in what fashion. Instead, the Amended Complaint alleges discrete instances of negative treatment towards Ms. Burford. As a pro se plaintiff, Ms. Burford may not appreciate the intricacies of Title VII law. Nonetheless, the allegation of disparate impact in the Amended Complaint, Count IV contains neither factual or legal support and must be dismissed.
Ms. Burford brings a whistleblower protection claim under the 12 U.S.C. § 1831j(b), which was passed as a component of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and that applies specifically to federal bank regulatory employees. It operates separately from the primary federal Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). This bank regulator whistleblower protection statute provides that "an employee or former employee who believes he has been discharged or discriminated against in violation of the statute may file a civil action in the appropriate United States district court before the close of the 2-year period beginning on the date of such discharge or discrimination." 12 U.S.C. § 1831j(b) (2012).
Unlike Ms. Burford's Title VII and ADEA claims, § 1831j does not require administrative exhaustion, and a plaintiff may sue at any time before the expiration of the two-year statute of limitations. As it is appropriate when considering a motion to dismiss, the Court gives the factual allegations in Ms. Burford's Amended Complaint the most favorable interpretation. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nonetheless, § 1831j is explicit that an affected employee must file her complaint within two years of the date
Finally, Ms. Burford alleges a violation of the District of Columbia Human Rights Act (DCHRA). See Am. Compl. ¶¶ 264-270. Her claims notwithstanding, "[s]overeign immunity bars DCHRA claims against the federal government. The D.C. Council, not Congress, enacted the DCHRA, and there is no federal statute that evinces Congress's intent to waive the United States' immunity from suit under the DCHRA." Marcus v. Geithner, 813 F.Supp.2d 11, 17 (D.D.C. 2011). This Court agrees.
Accordingly, the Board, which is a federal entity, has moved to dismiss Ms. Burford's DCHRA claim for lack of jurisdiction, which the Court will grant.
In addition to her Opposition, Ms. Burford filed a Motion to Strike Defendant's Motion to Dismiss in its entirety, citing Federal Rule of Civil Procedure 12(f) [Dkt. 18]. Rule 12(f) states that the Court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Ms. Burford argues that "each of the Board's defenses is insufficient and is solely based on redundant, immaterial, impertinent, and scandalous matter." See Pl.'s Mem. of Points and Authorities in Support of Plaintiff's Mot. to Strike [Dkt. 18] at 1. The Board opposes the motion, [Dkt. 21] and Ms. Burford has replied [Dkt. 23]. "`The decision to grant or deny a motion to strike is committed to the trial judge's sound discretion.'" NCB Mgmt. Servs., Inc. v. F.D.I.C., 843 F.Supp.2d 62, 72 (D.D.C. 2012) (quoting FTC v. Cantkier, 767 F.Supp.2d 147, 159-60 (D.D.C. 2011)). "A court has broad discretion in ruling on a motion to strike; however, striking portions of a pleading is a drastic remedy, and motions to strike are
The critical question under the Rule is whether it applies to Defendant's motion to dismiss at all. Rule 12(f) states that a court may, where appropriate (but is not obligated to), strike "pleadings." "Pleadings" are defined in Federal Rule of Civil Procedure 7(a) as various iterations of complaints, answers and replies to answers. The definitions contained in Rule 7 do not admit motions to dismiss as "pleadings." Accordingly, federal courts in this District have ruled that Rule 12(f) does not apply to such motions. "`[M]otions, affidavits, briefs and other documents are outside of the pleadings' and are not subject to being stricken." Henok v. Chase Home Fin., LLC, 925 F.Supp.2d 46, 52-53 (D.D.C. 2013) (quoting 5C Charles Alan Wright et al., Federal Practice & Procedure § 1380 (3d ed. Supp. 2012)). Even if the Board's motion to dismiss were subject to Rule 12(f), Ms. Burford's motion is largely duplicative of her Opposition and presents no independent basis to strike the motion to dismiss. Accordingly, the Motion to Strike will be denied.
For the reasons stated above, the Board's Motion to Dismiss will be granted in part and denied in part. Allegations in Counts 1-3, discrimination and disparate treatment under Title VII and ADEA; Count 4, disparate impact under Title VII and ADEA; Count 5, hostile work environment treatment under Title VII; Count 7, whistleblower protection under 29 U.S.C. 1831j; and Count 8, protection under the DC Human Rights Act, DC Code § 2-1402.62, will be dismissed. The allegations of retaliation in Count 6 based on Ms. Burford's weeks of assignment to standing posts will proceed to discovery. Ms. Burford's Motion to Strike will be denied.
A memorializing Order accompanies this Memorandum Opinion.
Count 7 is a harder question. Defendant moves to dismiss because the statute of limitations to bring claims under 12 U.S.C. § 1831j has expired. See Mot. at 15. When a statute involves a waiver of sovereign immunity, determining whether a related statute of limitations is jurisdictional, and subject to 12(b)(1), or substantive, and subject to 12(b)(6), requires a complicated analysis of the intent of Congress and the nature of the immunity waiver. See Menominee Indian Tribe of Wisconsin v. United States, 614 F.3d 519, 524 (D.C. Cir. 2010). A court has no authority to equitably toll a statute of limitations if that limitation is jurisdictional. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Defendant only states that "[t]here is no basis whatsoever to support tolling" § 1831j's statute of limitations, and does not assert that this Court lacks jurisdictional authority to do so. Accordingly, the Court will construe the Defendant's Motion to be moving to dismiss Count VII under 12(b)(6). In any event, the Court finds that there is no basis for equitable tolling and that the statute of limitations has expired; the outcome under 12(b)(1) and 12(b)(6) is the same. See Smith-Penny v. SEC, No. 16-1045, 672 Fed.Appx. 19, 19, 2016 WL 7438657, at *1 (D.C. Cir. Dec. 14, 2016) (dismissing SEC whistleblower appeal filed after time limit without considering jurisdictional issue because "[e]ven if the time limit is not jurisdictional, petitioner has not presented any circumstances warranting equitable tolling" (internal citations omitted)).
Therefore, the Court construes Defendant to be moving to dismiss Counts 1-7 under 12(b)(6), and Count 8 under 12(b)(1).
