UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JAMES K. BRYANT, : : Plaintiff, : : v. : Civil Action No. 09-cv-1063 (GK) : : PEPCO, : Defendant :
MEMORANDUM OPINION
Plaintiff James K. Bryant, an African American man formerly
employed by Defendant, Potomac Electric Power Company (“Pepco”),
brings suit under Title VII of the Civil Rights Act, 42 U.S.C. §
1981. Plaintiff’s Second Amended Complaint alleges that he was
discriminated against based on race (Count I); retaliated against
based on race (Count II); subjected to a hostile work environment
based on race (Count III); constructively discharged based on race
(Count IV); and discriminated against based upon mixed motives
including race (Count V).
The matter is presently before the Court on Defendant’s Motion
to Dismiss Plaintiff’s Second Amended Complaint for Failure to
State a Claim pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. No. 16].
Upon consideration of the Motion, Opposition, Reply, Supplemental
Opposition, and the entire record herein, and for the reasons set
forth below, the Motion to Dismiss is denied as to Counts I and II
and granted as to Counts III-V. I. BACKGROUND
From April 1974 to March 2008, Plaintiff James K. Bryant was
employed by Defendant Pepco. Since August 1993, he has worked as a
“Lead Cable Splicer Mechanic.” Second Am. Compl. ¶ 6 [Dkt. No. 14].
On June 1, 2004, Bryant was “upgraded” from “Pay Grade 19” (“PG-
19”) to “Pay Grade 20” (“PG-20”). Id. ¶ 9. As a PG-20, Bryant was
entitled to two hours of guaranteed overtime pay per day and
increased job responsibilities, including “managing the day to day
operation; verifying timesheets for his subordinates . . .
record[ing] their work assignments using ‘Maximo’ software; and,
[being] responsible for assigning work projects to the UGHV Leads
Pay Grade 19.” Id. ¶ 11.
Following his upgrade to PG-20, Bryant’s relationship with
Pepco changed. In December 2004, Bryant filed a grievance with his
union alleging that Pepco had failed to adequately compensate him
at PG-20 rates. Id. ¶ 7. Pepco agreed to provide the requested
back pay in April 2005. Id. Bryant then filed a similar grievance
in March 2006. Id.
In addition, on April 18, 2006 and August 9, 2006, Bryant took
part in informal meetings between African American Leads and Pepco
management. Id. ¶ 8. At these meetings the Leads “complained of
the disproportionate work assignments between White . . . Leads
whom [sic] were consequently, provided a greater opportunity to
-2- earn overtime compensation than similarly situated African American
. . . Leads.” Id. Bryant also alleges that he, along with other
African American Leads, was unable to select his “on-call”
assignments and that he specifically complained to Carol Murphy,
his white supervisor, of discriminatory treatment toward African
American Leads. Id. ¶ 19, 24.
On December 18, 2006--eight months following the first meeting
with African American Leads and four months after the second--
Bryant was informed by Carol Murphy that he had been demoted to PG-
19. Id. ¶ 9.1 The Second Amended Complaint alleges that Murphy was
the “ultimate decision maker” regarding Bryant’s employment at
Pepco. Id. ¶ 12. Following the demotion, Bryant’s duties were
assigned to a white Lead, Loman Dudley. Id. ¶ 10.
After Plaintiff’s demotion from PG-20 to PG-19--and he
alleges, as a result of it--he developed a severe emotional
disorder. Id. ¶ 13. Under the advice of his clinical psychologist,
Dr. Rose, Bryant requested that he be allowed to return to Pepco
following completion of his sick leave and be reassigned to a new
department with new supervisors. Id. Bryant alleges that he is
1 Because Plaintiff attached Exhibits 1-4, which are expressly referred to in Plaintiff’s Second Amended Complaint, the Court may consider these documents in ruling on the Motion to Dismiss. See, e.g., Jacobsen v. Oliver, 201 F. Supp. 2d 93, 110 (D.D.C. 2002). According to Defendant’s interpretation of these documents, Plaintiff’s upgrade to PG-20 was always intended to be temporary.
-3- aware of two white Leads who were permitted to return to work at
Pepco following medical leave. Id. ¶ 16; Pl’s Decl. 2.
Pepco denied Bryant’s request to be transferred. Rather than
return to Pepco in his previous capacity at the PG-19 level, Bryant
chose to retire with full benefits in March 2008. Second Am. Compl.
¶14.
On July 15, 2009 [Dkt. No. 4], Plaintiff amended his Complaint
and on July 29, 2009 [Dkt. No. 5], Defendant filed a Motion to
Dismiss, or in the Alternative, for a More Definite Statement. On
September 11, 2009, this Court denied Defendant’s Motion to Dismiss
and granted his Motion for a More Definite Statement [Dkt No. 12].
Plaintiff filed a more definite statement in the form of a Second
Amended Complaint on September 22, 2009 [Dkt No. 14]. On October
6, Pepco filed the present Motion to Dismiss [Dkt No. 16].
Plaintiff responded with a Brief in Opposition submitted on October
21, 2009 [Dkt No. 17] to which Defendant filed a Reply on October
30, 2009 [Dkt No. 19]. With leave of this Court, Plaintiff filed
a Supplemental Opposition on November 16, 2009, the contents of
which are almost wholly duplicative of Plaintiff’s initial
Opposition Brief [Dkt. No. 21].
II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b)(6), a plaintiff need only plead
“enough facts to state a claim to relief that is plausible on its
-4- face to nudge[] [his or her] claims across the line from
conceivable to plausible.” Bell Atl. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[A] complaint [does not]
suffice if it tenders naked assertions devoid of further factual
enhancement.” Ashcroft v. Iqbal, __ U.S. __, __, 129, S.Ct. 1937,
173 L.Ed.2d 868 (2009) (internal quotations omitted) (citing
Twombly, 550 U.S. at 557). Instead, the complaint must plead facts
that are more than “merely consistent with” a defendant’s
liability; “the pleaded factual content [must] allow[ ] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 1940.
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with allegations
in the complaint.” Twombly, 550 U.S. at 563. Under the standard
set forth in Twombly, a “court deciding a motion to dismiss
must . . . assume all the allegations in the complaint are true
(even if doubtful in fact) . . . [and] must give the plaintiff the
benefit of all reasonable inferences derived from the facts
alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc.,
525 F.3d 8, 18 (D.C. Cir. 2008) (internal quotation marks and
citations omitted); see also Tooley v. Napolitano, 586 F.3d 1006,
1007 (D.C. Cir. 2009) (declining to reject or address the
government’s argument that Iqbal invalidated Aktieselskabet).
-5- In the Title VII context, a plaintiff need not plead all elements
of a prima facie case in order to withstand a 12(b)(6) motion. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The prima facie
elements are “an evidentiary standard,” not a “pleading
requirement,” particularly in employment cases where discovery
“unearth[s] relevant facts and evidence.” Id. at 510-12.
While Swierkierwicz relied in part on the now abandoned standard
from Conley v. Gibson that a motion to dismiss should only be
granted if a “plaintiff can prove no set of facts in support of his
claim that would entitle him to relief,” 355 U.S. 41, 47 (1957),
Swierkierwicz’s holding remains good law after Iqbal and Twombly.2
See Winston v. Clough, 2010 WL 1875626, n. 10 (D.D.C. May 11, 2010)
(“Swierkierwicz . . . is still good law.”); Dave v. Lanier, 606 F.
Supp. 2d 45, 49 (D.D.C. 2009) (“It is not necessary for the
plaintiff to plead all elements of his prima facie case in the
complaint.”); accord Moore v. Metro. Human Serv. Dist., 2010 WL
1462224, at *3 (E.D. La. Apr. 8, 2010) (“[T]he current pleading
standards for a Title VII case . . . reconcile[s] Swierkiewicz,
Twombly, and Iqbal.”); Gillman v. Inner City Broad., 2009 WL 300244
(S.D.N.Y. Sept. 18, 2009) (“Iqbal was not meant to displace
Swierkierwicz.”). But see, e.g., Fowler v. UPMC Shadyside, 578
2 Significantly, Twombly relied explicitly on Swierkierwicz and Iqbal failed to mention Swierkierwicz or expressly overturn it.
-6- F.3d 203, 211 (3d Cir. 2009) (“because Conley has been specifically
repudiated by both Twombly and Iqbal, so too has Swierkiewicz.”).
Based on the reasoning of these cases, and in accordance with Fed.
R. Civ. P. 8(a)(2), this Court concludes that a Complaint needs to
include only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Swierkierwicz, 534 U.S. at 512.
III. ANALYSIS
A. Count III and Count V
Under Local Rule 7(b), if a plaintiff does not respond in his
Opposition to a claim made in a defendant’s Motion to Dismiss it
may be treated as conceded. See Harris v. Koenig, 2010 WL 2560038
(D.D.C. June 10, 2010). In its pleadings, Defendant argued that
Count III should be dismissed because (1) Plaintiff failed to
adequately plead any of the required elements of a hostile work
environment claim, except that he was a member of a protected
class, and (2) that Plaintiff complained only of the kind of
“ordinary work-related concerns” which fail to rise to the level of
“hostile work environment claims” requiring “discriminatory
intimidation, ridicule, and insult.” Mem. of Law in Supp. of
Pepco’s Mot. to Dismiss [Dkt. No. 16-2] (citing Ramey v. Pepco, 468
F. Supp. 2d 51, 57-58 (D.D.C. 2006)). Plaintiff ignored these
arguments and failed to respond to Defendant’s challenges to Count
III.
-7- As to Count V, Plaintiff also failed to respond to Defendant’s
contentions that Count V is duplicative of Count I, and that
Plaintiff failed to identify any specific facts regarding a mixed
motive including race. See Mem. of Law in Supp. of Pepco’s Mot. to
Dismiss. Because Plaintiff failed to oppose Defendant’s Motion to
Dismiss these counts, Defendant’s Motion to Dismiss is granted as
to Counts III and V.3
B. Count I
Count I alleges that Bryant was discriminated against based on
his race. To establish racial discrimination under Title VII a
plaintiff must show that “(1) [he] is a member of a protected
class, (2) [he] suffered an adverse employment action, and (3) the
unfavorable action gives rise to an inference of discrimination.”
Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (internal
citation omitted). As already noted, a plaintiff need not plead
all elements of a prima facie case in a Title VII context to
survive a Rule 12(b)(6) motion. See Swierkierwicz, 534 U.S. at 512;
Winston, 2010 WL 1875626, at n. 10 (“Swierkierwicz . . . is still
good law.”). As the court explained in Rouse v. Berry, 680 F. Supp.
2d 233, 236 (D.D.C. 2010):
3 It should be noted that Plaintiff was given the opportunity to file a Supplemental Opposition and still failed to respond to Defendant’s contentions.
-8- [T]he D.C. Circuit has long recognized the ease with which a plaintiff claiming employment discrimination can survive a Rule 12(b)(6) motion to dismiss. . . “I was turned down for a job because of my race’ is all a complaint has to state to survive a motion under 12(b)(6).” (citing Potts v. Howard Univ. Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir. 2007)).
However, a Plaintiff must plead “enough factual heft to show
a plausible entitlement to relief.” Winston, 2010 WL 1875626, at
*10. Pleadings have sufficient “factual heft” when they allege
that “(i) the plaintiff suffered an adverse employment action and
(ii) because of his race, color, or religion, sex or national
origin.” Id. at *8.
Both parties focus their arguments about Count I on two
particular acts: (1) Defendant’s reduction of Bryant’s pay and
responsibilities by demoting him from PG-20 to PG-19, and (2)
Defendant’s denial of Bryant’s request to return and be reassigned
following the completion of his sick leave. Bryant alleges that
both acts were taken because of his race.
1. Plaintiff’s Reduced Responsibilities and Wages Claim
Defendant argues that Plaintiff’s allegation that he was
demoted from PG-20 to PG-19 because of his race fails to present
sufficient factual support to demonstrate Defendant’s
discriminatory intent. Plaintiff responds that his pleadings
-9- provide sufficient evidence at the pleadings stage to withstand a
Rule 12(b)(6) motion.
In Winston v. Clough, a Smithsonian employee’s Title VII
Complaint alleged simply that the Plaintiff had been suspended
without pay “because of his race and color” and that “other co-
workers outside of [his] protected class” engaged in the same
activity that resulted in his suspension, but were not disciplined.
2010 WL 1875626, at *2. The District Court recognized that these
two allegations were very broad. Yet, for purposes of pleading it
held that they were sufficient as they not only alleged race-based
discrimination but also made a factual argument in support,
rendering the Complaint “adequately pled.” Id. at *8.
In this case, Bryant’s factual claims are similarly few in
number. The only factual allegations that he makes are (1) that
his duties were given to a white Lead, (2) that he was demoted
because of his race, and (3) that white Leads were allowed to
choose their own on-call assignments while African American Leads
were not. Together, these facts, if proven, provide enough support
to “nudge a claim . . . across the line from conceivable to
plausible.” See Twombly, 550 U.S. at 570. As in Winston, these
facts provide factual support necessary at this early pleading
stage from which this Court can infer discriminatory acts and
intent by Pepco.
-10- 2. Plaintiff’s Reinstatement Claim
Plaintiff also claims that Pepco discriminated against him
based on race by denying his request to be reinstated and
transferred following completion of his sick leave. Defendant
responds that this claim must be dismissed because Plaintiff fails
to plead sufficient facts to demonstrate, in anything more than a
conclusory way, that his reinstatement and reassignment were denied
because of race.
Yet, as above, Plaintiff’s pleadings do more than simply
allege discrimination in a conclusory fashion. Specifically, He
alleges that he is aware of two white Leads who were reinstated by
Pepco following their use of sick leave. Pl. Decl. At 2. Because
these white comparators were permitted to return following their
use of sick leave and he was not, Plaintiff argues it is
“plausible” that his request to return to Pepco was not granted
because he is African American. See id. As in the previous claim,
if proven, the fact that these comparators were able to return
following completion of sick leave constitutes sufficient factual
support to render his claim “plausible” at this early stage of
litigation. Defendant’s Motion to Dismiss Count I is therefore
denied.
-11- C. Count II
Count II alleges that Pepco demoted Bryant from PG-20 to PG-19
in retaliation for his attendance at two informal meetings that
took place between management and black Leads. In order to make
out a prima facie case of discriminatory retaliation under Title
VII, Bryant needs to show that “(1)[]he engaged in a statutorily
protected activity; (2)[]he suffered an adverse employment action;
and (3) there is a causal connection between the two.” Taylor v.
Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003). While Bryant need not
plead all the elements of a prima facie case of retaliation, he
must plead sufficient factual allegations that together demonstrate
“plausibility.” Defendant argues that this claim fails to satisfy
that standard for two reasons: (1) the Complaint fails to
sufficiently identify a “protected activity,” and (2) the Complaint
fails to adequately articulate a causal link between the alleged
protected activity and Bryant’s demotion.
There are two kinds of “protected activity” under 42 U.S.C. §
2000e-3(a). The first consists of acts “oppo[sing] any practice
made an unlawful practice by this subchapter.” Crawford v. Metro.
Gov’t of Nashville, 129 S.Ct. 846, 850 (2009). The second consists
of "ma[king] a charge, testify[ing], assist[ing], or
participat[ing] in any manner in an investigation, proceeding or
hearing.” Id. Plaintiff argues that his presence at the meeting
-12- was an act of opposition to what he believed was the unlawful
practice of discrimination against African American Leads.
Defendant argues that, in order for Plaintiff’s activity to be
considered statutorily protected, he must allege that he said
something at these meetings or that he did something more than
merely attend. A Plaintiff’s statement of protected activity,
Defendant argues, must not be generic. See Broderick v. Donaldson,
437 F.3d 1226, 1232 (D.C. Cir. 2006). Yet, Plaintiff’s claims are
not generic. Rather, Plaintiff specifically alleges that the
particular meetings he attended concerned allegations of racial
discrimination.
The Supreme Court’s recent guidance in Crawford, 129 S.Ct.
846, is telling in this regard. In Crawford, the Court held that
protected “opposition” for purposes of Title VII occurs when “an
employee communicates to her employer a belief that the employer
has engaged in . . . a form of employment discrimination . . . .”
Id. at 851 (citing EEOC Compliance Manual I-B(1),(2), p. 614:003
(Mar. 2003)). While Bryant does not allege that he spoke at these
meetings, his attendance at them certainly could be viewed by his
supervisors as opposition to what he perceived as Pepco’s
discrimination against him and other black Leads. Therefore,
Plaintiff’s Complaint will not be dismissed on the grounds that he
failed to adequately plead a “protected activity.”
-13- Defendant argues in the alternative that, even if Plaintiff has
sufficiently alleged “protected activity,” his retaliation claim
should be dismissed on the grounds that he failed to allege a
causal connection between his protected activity and an adverse
action by Pepco. Because causation is often the most difficult
element to show in advance of discovery, courts generally rely on
the length of time between the protected activity and the adverse
action to determine whether causation has been sufficiently pled at
the motion to dismiss stage. See, e.g., Holcomb v. Powell, 433 F.3d
889, 903 (D.C. Cir. 2006); Booth v. District of Columbia, 2010 WL
1286318, *3 (D.D.C. Apr. 1, 2010).
If the adverse action occurs immediately following the
protected activity then the court is free to infer causality; if
the adverse action happens many months or years later courts are
less likely to allow such an inference. See Id. (citing Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273-274) (stating that
this Circuit has “made it clear that there is a point in time where
temporal proximity becomes too remote, without more, to permit an
inference of causation. . . [and that is] action which occurs more
than three or four months after protected activity is not likely to
qualify for such a causal inference.”).
However, “temporal proximity . . . is not a required element
of a retaliation claim, particularly at this stage of the
-14- proceedings.” Dave, 606 F. Supp. 2d 45, 52-53. In cases like this
one where four months separated the alleged protected activity and
the alleged discrimination, temporal proximity neither demonstrates
causality conclusively nor eliminates it conclusively. Therefore,
courts must apply the traditional standard that “[a]t this early
stage of the proceedings, plaintiff can meet [his] prima facie
burden of causation simply by alleging that the adverse actions
were caused by [his] protected activity.” Vance v. Chao, 496 F.
Supp. 2d 182, 187 (D.D.C. 2007).
Here, Plaintiff alleges that “as a result of having engaged in
a protected activity . . . he suffered retaliation in the form of
reassignment. . . .” Second Am. Compl. ¶ 25. To be sure,
Plaintiff’s claim could be stronger if he had pled the connection
between the protected activity and the adverse action with greater
specificity. Yet, such details are not required at this early
stage of the pleadings, particularly when only four months separate
the alleged protected activity and adverse action. Therefore,
Defendant’s Motion to Dismiss Count II is denied.
D. Count IV
Finally, Plaintiff fails to allege sufficient facts to render
his claim in Count IV for “constructive discharge” plausible. To
establish a claim of constructive discharge, the plaintiff must
prove that “(1) intentional discrimination existed, (2) the
-15- employer deliberately made working conditions intolerable, and (3)
aggravating factors justified the [plaintiff's] conclusion that
[he] had no option but to end [his] employment.” Villines v. United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, 999 F.
Supp. 97, 104-05 (D.D.C. 1998) (citing Clark v. Marsh, 665 F.2d
1168, 1173-74 (D.C. Cir. 1981)). Plaintiff’s only pleadings in
support of his allegation for constructive discharge state that his
doctor recommended he be transferred and Defendant refused to
transfer him. In addition, he alleges, in conclusory fashion, with
no factual detail, that he was subjected to “intolerable working
conditions”--one of the elements necessary to establish
“constructive termination.”
Plaintiff’s pleadings are deficient in two ways. First,
Plaintiff fails to plead any additional facts to demonstrate that
he was subjected to “intolerable working conditions,” an essential
element of a constructive termination claim. Rather, he simply
restates that he was not granted the reassignment that he
requested. This is insufficient under Twombly as it represents
little more than a “formulaic recitation of the elements of a cause
of action.” 550 U.S. at 556. Second, simply denying a transfer,
even if recommended by a doctor, is not the kind of harassing
conduct required to demonstrate that a reasonable Plaintiff would
-16- be left “no realistic option but to quit his or her job.” See,
e.g., Veitch v. England, 471 F.3d 124, 131-32 (D.C. Cir. 2006).
As Plaintiff fails to allege sufficient facts to support either the
claim that he was denied his request for transfer because of his
race or the claim that not being granted a transfer reached the
level of “intolerable working conditions,” Plaintiff’s Motion to
Dismiss as to Count IV is granted.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint under Fed. R. Civ. P. 12(b)(6) is
granted for Counts III-V. It is denied as to Counts I and II. An
order will accompany this Memorandum Opinion.
August 9, 2010 /s/ Gladys Kessler United States District Judge
Copies via ECF to all counsel of record
-17-