RICHARD J. LEON, United States District Judge.
Plaintiff Monica Austin brings this suit against defendant American Institute for Research ("AIR") for employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"), as well as for violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 ("FMLA"). See generally Compl. [Dkt. # 1]. Defendant AIR moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Def.'s Mot. to Dismiss ("Def.'s Mot.") [Dkt. # 4]. Upon consideration of the parties' pleadings, relevant law, and the entire record therein, the motion is GRANTED in part and DENIED in part.
Ms. Austin, an African-American woman, was employed by AIR from 2001 to 2011, first as an administrative assistant and then as an HR coordinator. Compl. at 2-3. In 2007, Ms. Austin was diagnosed with Lupus, Raynaud's Syndrome, depression, and Lyme disease. Compl. ¶ 3. She applied for and took four months of leave under the FMLA, and returned to work in October 2008. Compl. ¶ 4.
The allegations in the Complaint arise out of plaintiff's treatment upon return from leave. Ms. Austin alleges "she requested accommodations which she did not receive" and that her work demands increased soon after she returned, particularly when she was assigned the duties of a former colleague. Compl. ¶¶ 5-6, 16, 18. In September 2009, AIR changed plaintiff from a salaried employee to an hourly employee. Pl.'s Opp'n to Def.'s Mot. at 2 ("Pl.'s Opp'n") [Dkt. # 9].
After her termination, Ms. Austin filed an official charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliation on the basis of her race and disability. Def.'s Mot, Ex. 2 at 2 [Dkt. #4-4]. She now brings this suit, alleging six counts in her Complaint: (1) Wrongful Discharge; (2) Race Based Discrimination, in violation of Title VII; (3) Hostile Work Environment, in violation of Title VII; (4) violations of the Americans with Disabilities Act ("ADA"); (5) Retaliation, in violation of Title VII; and (6) Violation of the Family and Medical Leave Act. See generally Compl. She seeks damages and attorney fees. Compl. at 16. Defendant AIR moves to dismiss under Rule 12(b)(6). Def.'s Mot.; Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") [Dkt. #4-1].
Under Rule 12(b)(6), "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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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." Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level....").
A 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. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.2000) (internal quotation marks omitted). However, the court need not "accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). "In ruling on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim." Harris v. Amalgamated Transit Union Local 689, 825 F.Supp.2d 82, 85 (D.D.C.2011).
To bring an actionable race discrimination claim under Title VII, a plaintiff must adequately plead that (i) she suffered an adverse employment action (ii) because of her race. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). A plaintiff must first exhaust her claim
Ms. Austin filed her official charge with the EEOC on April 18, 2012.
"An adverse employment action is 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." Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009) (internal quotation marks omitted). Ms. Austin alleges she was placed on a PIP and denied a transfer in the fall of 2011, Opp'n at 11; Compl. ¶ 22, but does not allege that her pay, benefits, or responsibilities changed (or would have changed, had she been granted a transfer). Neither rises to the level of an adverse employment action. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003); Akosile v. Armed Forces Ret. Home, 938 F.Supp.2d 76, 91 (D.D.C. 2013). Nor were the movement of plaintiff's desk around the office, exclusions from meetings, or requests for clear doctors' notes, Compl. ¶¶ 13, 15, 17 — all of which are alleged to have taken place at least in part within the limitations period — significant alterations to the terms of employment. See Johnson v. Bolden, 699 F.Supp.2d 295, 300 (D.D.C.2010) aff'd, 492 Fed.Appx. 118 (D.C.Cir.2012); Cole v. Powell, 605 F.Supp.2d 20, 26 (D.D.C. 2009); Weber v. Hurtgen, 297 F.Supp.2d 58, 68 (D.D.C.2003) rev'd in part on other grounds sub nom. Weber v. Battista, 494 F.3d 179 (D.C.Cir.2007). Ms. Austin also points to an increased work load in late 2009 or early 2010,
The only timely adverse employment action Ms. Austin alleges is her termination. AIR does not dispute that her
In addition to the discrete employment action claim brought above, Ms. Austin alleges that AIR created a hostile work environment in violation of Title VII. Compl. ¶¶ 32-38. A plaintiff may bring a Title VII hostile work environment claim "[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 create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, ¶ 4 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citation omitted).
Unfortunately for plaintiff, she failed to raise a hostile work environment claim in her EEOC charge, and therefore her claim is barred as unexhausted. "A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations." Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (internal quotation marks omitted). Ms. Austin lists a number of actions in her EEOC charge: a change from salaried to hourly employee; an increase in duties without support; a warning about her performance; denials of requests for accommodations, including a transfer and reduced work load; and her termination. Def.'s Mot., Ex. 2 at 2. However, these are allegations of discrete actions, and "mere reference to alleged disparate acts of discrimination against plaintiff cannot be transformed, without more, into a hostile work environment claim." Childs-Pierce v. Util. Workers Union of Am., 383 F.Supp.2d 60, 79 (D.D.C.2005) aff'd, 187 Fed.Appx. 1 (D.C.Cir.2006); see also Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C.2003). The charge does not give AIR fair warning of a possible hostile work environment claim. It "not only lacks the words `hostile work environment,' but also lacks any factual allegations supporting such a claim." Park, 71 F.3d at 908.
The allegations upon which Ms. Austin now bases her hostile work environment claim are different in kind from those raised before the EEOC. Nowhere in her charge does Ms. Austin mention — or give reason to infer — the "harassment," "threats of termination and false accusations that Plaintiff did not perform her job," or "humiliating, demeaning and unnecessary" actions of AIR that she claims in the Complaint. Compare Compl. ¶¶ 33-36 with Def.'s Mot., Ex. 2 at 2. These claims are not "like or reasonably related to the allegations of the charge," Park, 71
Reading the Complaint generously, it appears Ms. Austin attempts to allege two possible bases for a claim of discrimination under the American with Disabilities Act, 42 U.S.C. §§ 12101-12213: (i) adverse employment action due to her disability, and (ii) failure to accommodate. Compl. ¶¶ 39-45. If Ms. Austin is attempting to bring an adverse action claim on the basis of her disability, she is not successful. This type of claim is analogous to the Title VII race-based discrimination claim described in Count II, above. "[T]he two essential elements of an ADA claim are that the plaintiff suffered an adverse employment action, and that the adverse employment action was based on plaintiff's disability."
Under the ADA, an employer can discriminate on the basis of a disability by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee." 42 U.S.C. § 12112(b)(5)(A). Ms. Austin claims that she was not provided the accommodations she requested in order to deal with her diagnosed illnesses. Compl. ¶ 5. Specifically, Ms. Austin alleges that she requested a departmental transfer in September 2011, which was denied.
The ADA defines "reasonable accommodation" as including "reassignment to a vacant position." 42 U.S.C. § 12111(9)(B). Ms. Austin alleges no facts to show any vacant position was available, let alone one for which she would be qualified. Her general allegation that "[s]he knew what positions were available," Compl. ¶ 22, does not help her plead that she requested and was denied a reasonable accommodation. The attempt to elaborate in her Opposition brief that she "knew that there were positions available for which she qualified and could perform," Opp'n at 13, does not remedy the issues with her pleading
Title VII and the ADA prohibit employers from retaliating against employees for opposing unlawful practices or participating in an employment discrimination proceeding. 42 U.S.C. §§ 2000e-3(a), 12203(a). An employer unlawfully engaged in unlawful retaliation against a plaintiff if it "took materially adverse action against h[er] because [s]he participated in protected activity."
Ms. Austin does not allege that she engaged in any Title VII protected activity while employed at AIR. Therefore, she cannot sustain a Title VII retaliation claim. However, requesting a reasonable accommodation may be protected activity under the ADA. See Floyd v. Lee, 968 F.Supp.2d 308, 331-33 (D.D.C. 2013) (collecting cases). Ms. Austin alleges she requested a departmental transfer in September 2011. Compl. ¶ 22. She was terminated the next month. Although Ms. Austin does not adequately plead that AIR denied her a reasonable accommodation because she does not plead that there was a vacancy for which she was qualified, she does plead that she requested the transfer. This request for a transfer, coupled with her termination, meets the Rule 12(b)(6) pleading standard.
An employer violates the Family and Medical Leave Act if it interferes with or denies a plaintiff an FMLA benefit to which she was entitled or retaliates against a plaintiff for exercising an FMLA right. See 29 U.S.C. § 2615(a); Breeden v. Novartis Pharm. Corp., 646 F.3d 43 (D.C.Cir. 2011) (recognizing two types of claims). Ms. Austin attempts to sue on both types of violations here, claiming that AIR interfered with her 2008 FMLA leave and retaliated
The FMLA allows a plaintiff to bring a civil action within two years after the last event constituting the alleged violation, 29 U.S.C. § 2617(c)(1), or three years if the action is brought for a "willful violation," id. § 2617(c)(2). Ms. Austin filed her Complaint on February 26, 2014. See generally Compl. At best, Ms. Austin's FMLA claim is timely only as to conduct occurring on or after February 26, 2011. Ms. Austin returned from FMLA leave in October 2008, Compl. ¶ 4, so any claim of interference with that leave falls well outside the limitations period. Ms. Austin alleges purportedly-retaliatory actions in her Complaint, but those actions "occurred soon after returning from FMLA leave," Compl. ¶ 51, "on her return from FMLA leave," id., or otherwise admittedly fall outside the limitations period, see Opp'n at 10 (acknowledging that she took over assignments from a departed employee in "approximately late 2009 or early 2010," which predates the limitations period).
Finally, to the extent Ms. Austin is trying to rely on her fall 2011 transfer request or her claim that she "was given additional work responsibilities during her last year of employment," Compl. ¶ 16, sufficient time had passed so as not to allow an inference that those changes were retaliation for taking leave that ended in 2008. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding in a Title VII context that "[a]ction taken (as here) 20 months later suggests, by itself, no causality at all").
Thus, for all the foregoing reasons, Defendant's Motion to Dismiss [Dkt. #4] is hereby GRANTED in part and DENIED in part. Plaintiff's Counts I-IV, VI, and Count V as to retaliation in violation of Title VII are DISMISSED. An appropriate order shall accompany this Memorandum Opinion.
