UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MALCOLM COVINGTON,
Plaintiff,
v. Civil Action No. 1:22-cv-01441-RDM
FMC & ASSOCIATES, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Malcolm Covington brings this action against his former employer, FMC &
Associates, LLC (“FMC”). Covington asserts three sets of claims relating to his employment at
FMC. First, he alleges that FMC violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and the District of Columbia Wage Payment and Collection Law (“DCWPCL”),
D.C. Code § 32-1301 et seq., by failing to pay him legally required overtime wages. Second, he
asserts discrimination claims under 42 U.S.C. § 1981 (“Section 1981”) and the District of
Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq. Finally, he alleges
that FMC retaliated against him in violation of 42 U.S.C. § 1918 and the DCHRA. Before the
Court is FMC’s motion to dismiss the complaint for failure to state a claim. For the reasons
explained below, the Court will DENY FMC’s motion to dismiss.
I. BACKGROUND
A. Factual Background
To resolve FMC’s motion to dismiss, the Court must accept as true the following factual
allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). FMC is a consulting firm specializing, among other things, in the testing and inspection
of construction materials. Dkt. 1 at 2 (Compl. ¶ 5). FMC employed Covington, a “dark-skinned,
African American (black) male” born in the United States, id. at 3 (Compl. ¶ 17), from 2015 to
2021, id. at 2 (Compl. ¶ 6). Covington does not have a college degree, id. at 3 (Compl. ¶ 11),
although he earned two masonry and strength technician certifications in 2017, id. (Compl.
¶¶ 19–20). From 2015 to 2020, most of Covington’s tenure at FMC, he was a lab technician.
See id. at 2 (Compl. ¶ 6). His primary duty in that role was testing the strength of concrete
cylinders that would be used in construction. Id. (Compl. ¶ 9). Damtew Gebreyyohannis, who is
Ethiopian and has “lighter skin” than Covington, id. at 4 (Compl. ¶ 24), directly supervised
Covington from late 2019 to August 2020, see id. at 4, 5 (Compl. ¶¶ 24, 29). Covington was the
most experienced lab technician, and no other lab technicians at the relevant times held the same
or similar certifications to those he possessed. Id. at 3 (Compl. ¶¶ 19, 21). According to the
complaint, Covington “excelled at his job and regularly received raises.” Id. at 4 (Compl. ¶ 22).
Between February 2015 and late 2016, FMC paid Covington on an hourly basis. Id. at 2
(Compl. ¶ 7). Then, in late 2016, the company began paying him on a salary basis. Id. (Compl.
¶ 8). During the period when FMC paid Covington on a salary basis, “there were 2-3 other [l]ab
[t]echnicians,” but he was the only one who was not paid on an hourly basis. Id. at 3 (Compl.
¶ 15). His “salary ranged from approximately $40,000 per year in 2016 to approximately
$57,000 per year in 2020.” Id. at 2 (Compl. ¶ 8). Covington alleges that he was underpaid
compared to his colleagues during this time because he worked sixty to seventy hours per week
but did not receive overtime pay, while his colleagues were paid on an hourly basis and did
receive “overtime premium.” Id. at 2, 4 (Compl. ¶¶ 9, 23). He alleges that FMC paid him a
salary rather than hourly wages due to his race, color, and national origin. Id. at 4 (Compl. ¶ 23).
2 In August 2020, FMC began to pay Covington on an hourly basis again. Id. at 5 (Compl.
¶ 29). Several developments precipitated this change. In early 2020, Robel Getachew and
Teloosa Inu, who are Ethiopian and both have lighter skin than Covington, id. at 4 (Compl.
¶ 25); see id. at 3 (Compl. ¶ 18), became lab technicians, id. at 4 (Compl. ¶ 25). Getachew and
Teloosa’s duties included cleaning up “concrete debris after a [l]ab [t]echnician tested a concrete
sample in a hydraulic press machine” and “sort[ing] concrete core samples prior to testing by the
[l]ab [t]echnician.” Id. at 4 (Compl. ¶ 26). Although Getachew and Teloosa performed this duty
for other lab technicians, according to the complaint, they refused to provide similar assistance to
Covington because of his “race/color/national origin.” Id. This mistreatment, in turn, interfered
with Covington’s ability “effectively [to] perform his job” and slowed his work to the point that
he had to work longer hours to meet deadlines. Id. at 4–5 (Compl. ¶¶ 27, 29).
In late 2019 and 2020, Covington “continually complained” about race, color, and
national origin discrimination, id. at 12, 14 (Compl. ¶¶ 74, 87), to FMC CEO Fadil Abdelfattah,
who is Sudanese and has “lighter skin,” id. at 5 (Compl. ¶ 28), and Head of Human Resources
Pranil Acharya, who is Nepalese and “lighter-skinned,” id. at 6 (Compl. ¶ 36). Covington also
complained to Abdelfattah and Gebreyyohannis specifically that Getachew and Teloosa’s
treatment of him was racially motivated. Id. at 5 (Compl. ¶ 28).
Covington alleges that Gebreyyohannis took no action in response and that Abdelfattah
did not act until a meeting in August 2020, at which an agreement was reached to move
Covington to the Specialty Inspections department. Id. (Compl. ¶¶ 28–29). It was at that point
that FMC, once again, began to compensate Covington on an hourly basis—this time, at a rate of
$27.41 per hour. Id. (Compl. ¶ 29). Neither of Covington’s positions at FMC gave him the
3 authority to “manage, hire or fire other employees.” Id. at 3 (Compl. ¶ 12). Nor did he have the
power to set FMC “policies or procedures.” Id. (Compl. ¶ 13).
In the Specialty Inspections department, Covington worked alongside Mark Goodwyn,
who is “mixed race” and has “light[ ]skin.” Id. at 5 (Compl. ¶ 30). Covington alleges that
Goodwyn sexually harassed him by making regular “sexually suggestive jokes” and
“display[ing] pornographic materials in [his] presence.” Id. at 6 (Compl. ¶ 31). Covington’s
direct supervisor in the department was Kim Ketchoyian, who is Armenian and “light skinned.”
Id. at 5 (Compl. ¶ 30). The department was headed by Oscar Vasquez, who is Hispanic and
“light-skinned.” Id.
Initially, Covington worked around forty hours per week in the Specialty Inspections
department. See id. at 6 (Compl. ¶ 32). But around November 2020, he began receiving fewer
assigned hours than his colleagues. Id. Goodwyn, for example, whom Covington alleges was
less qualified than he was, worked sixty to seventy hours per week and was paid for overtime,
while Covington’s hours dropped to about fifteen to thirty per week. Id. at 6–7 (Compl. ¶¶ 32,
36). Covington “continually” requested additional hours of work from Ketchoyian and Vasquez,
who in response told him that there was not enough work to assign him more. Id. at 6 (Compl.
¶ 33).
Covington alleges that in the first two weeks of January 2021 he was not scheduled for
any work at all and was given a schedule showing that “no work hours were available.” Id.
(Compl. ¶ 35). On January 3, 2021, Covington complained to Abdelfattah “that he was being
denied work hours for racially motivated reasons.” Id. (Compl. ¶ 34). On January 14, 2021,
without having received a response from Abdelfattah to his January 3 complaint, Covington
complained to both Abdelfattah and Acharya in an email. Id. at 6 (Compl. ¶¶ 34, 36). In that
4 email, he stated that he was not being assigned available work due to racism and sexual
harassment by Goodwyn. Id. (Compl. ¶ 36). Covington was not assigned any work hours at all
after this communication, and he was terminated shortly thereafter. Id. at 7 (Compl. ¶¶ 37–38).
B. Procedural History
Covington filed this action on May 23, 2022. His complaint includes three categories of
claims. The first pertains to unpaid overtime wages. Covington alleges that FMC violated the
FLSA (Count I) by “failing to compensate [him] at 150% of his regular rate for all hours worked
over forty . . . in a workweek.” Id. at 8 (Compl. ¶ 47). He also alleges that FMC violated the
DCWCPL (Count II) by failing to pay him the wages he was owed under the FLSA and the
District of Columbia Minimum Wage Act (“DCMWA”). Id. at 9 (Compl. ¶¶ 56–58). The
second category includes Covington’s workplace discrimination claims under 42 U.S.C. § 1981
(Count III) and the DCHRA (Count V). Covington alleges that he was treated differently than
other FMC employees in terms of his pay structure, the work hours he was allocated, and the
support he received on the job from colleagues because of his protected statuses. Id. at 10–11,
13–14 (Compl. ¶¶ 65–71, 79–84). The final category encompasses Covington’s retaliation
claims, also under 42 U.S.C. § 1981 (Count IV) and the DCHRA (Count VI). Covington alleges
that FMC reduced his work hours and eventually terminated him because he complained to his
superiors about the discriminatory treatment. Id. at 12, 14–15 (Compl. ¶¶ 74–77, 86–90). FMC
now moves to dismiss all counts for failure to state a claim. Dkt. 12-1 at 1.
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002). In evaluating a Rule 12(b)(6) motion, the Court “must first ‘tak[e]
5 note of the elements a plaintiff must plead to state [the] claim’ to relief, and then determine
whether the plaintiff has pleaded those elements with adequate factual support to ‘state a claim to
relief that is plausible on its face.’” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir.
2015) (alterations in original) (internal citation omitted) (quoting Iqbal, 556 U.S. at 675). The
complaint, however, need not include “detailed factual allegations” to withstand a Rule 12(b)(6)
motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), nor must the complaint
demonstrate that recovery is likely, so long as the facts alleged are “enough to raise a right to
relief above the speculative level,” id.
The Court must “assume [the] veracity” of “well-pleaded factual allegations,” Iqbal, 556
U.S. at 679, and must “grant [the] 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)
(quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). Even though “detailed
factual allegations” are not required, however, the complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
at 555.
III. ANALYSIS
A. FLSA (Count I)
In Count I, Covington alleges that FMC did not adequately compensate him under the
FLSA for the overtime hours he worked. Dkt. 1 at 7–8 (Compl. ¶¶ 41–51). In response, FMC
argues that Covington was employed in a “professional capacity” and that, accordingly, he was
exempt from the FLSA’s overtime pay requirements. Dkt. 12-1 at 6–9. The Court is
unpersuaded, as explained below.
6 The FLSA requires employers to compensate employees for hours worked in excess of
40 hours per week at a rate of at least 1.5 times their regular rate. See 29 U.S.C. § 207(a). FMC
does not dispute that Covington has alleged the essential elements of a prima facie case: He has
alleged that (1) “the defendant employed him,” (2) “the defendant is an enterprise engaged in
interstate commerce covered by the FLSA or the plaintiff is otherwise covered by the FLSA,” (3)
he “actually worked in excess of a 40–hour work week,” and (4) “the defendant failed to pay him
overtime wages as required by law.” Driscoll v. George Washington Univ., 42 F. Supp. 3d 52,
58 (D.D.C. 2012) (citations omitted). Nor does FMC contest—at least for present purposes—
that the complaint adequately alleges that it “failed to make, keep, and preserve records with
respect to [Covington] sufficient to determine his wages, hours, and other conditions of
employment in violation of the FLSA.” Dkt. 1 at 8 (Compl. ¶ 49); see Dkt. 12-1 at 6–9. Instead,
FMC makes only one argument: that Covington’s employment was exempt from coverage under
the FLSA. See Dkt. 12-1 at 6–9.
In particular, FMC maintains that Covington was exempt because he was employed in “a
bona fide . . . professional capacity.” 29 U.S.C. § 213(a)(1); Dkt. 12-1 at 7. Under the governing
Department of Labor regulations, an employee is “employed in a bona fide professional
capacity” if his work requires “[1] knowledge of an advanced type in field of science or learning
customarily acquired by a prolonged course of specialized intellectual instruction[] or . . .
[2] invention, imagination, originality or talent in a recognized field of artistic or creative
endeavor.” 29 C.F.R. § 541.300(a)(2)(i)–(ii); see also Powell v. Am. Red Cross, 518 F. Supp. 2d
24, 38 n.14 (D.D.C. 2007).
Notably, the professional capacity exemption is an “affirmative defense on which the
employer has the burden of proof.” Corning Glass Works v. Brennan, 417 U.S. 188, 196–97
7 (1974); see also Am. Fed’n of Gov’t Emps., AFL-CIO v. Off. of Pers. Mgmt., 821 F.2d 761, 771
(D.C. Cir. 1987) (“Although employees who are determined to be executive, administrative, or
professional are exempt from overtime, the burden is on the employer to demonstrate the
employee is in fact exempt.” (citations omitted)). As such, Covington was not required to plead
facts sufficient to permit the Court to conclude, at this early stage of the proceeding, that the
exemption is inapplicable. To be sure, “an affirmative defense may be raised by pre-answer
motion under Rule 12(b) when the facts that give rise to the defense are clear from the face of the
complaint.” Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). But that
is the rare exception, and not the rule, and, here, nothing in the complaint invites early resolution
of such an inherently fact-intensive defense.
To fall within the professional capacity exemption, the employment at issue must satisfy
both the salary and primary duty tests. See Powell, 518 F. Supp. 2d at 38. The former requires
that the employee earn at least $684 per week. 29 C.F.R. § 541.300(a)(1). Both parties agree
that Covington has alleged as much. See Dkt. 12-1 at 9, Dkt. 15 at 11. But, as noted above, the
“primary duty” test asks whether the employee’s work “[r]equir[ed] knowledge of an advanced
type in a field of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction.” 29 C.F.R. § 541.300(a)(2)(i). The parties dispute whether Covington’s
work satisfied this second test.
FMC argues that Covington’s work “testing the structural integrity of concrete cylinders
to be used in construction projects,” Dkt. 1 at 2 (Compl. ¶ 9), “require[ed] knowledge of an
advanced type,” and it argues that “the construction industry” is a “field of science or learning.”
Dkt. 12-1 at 9. FMC further contends, moreover, that Covington’s masonry and strength
8 technician certifications, Dkt. 1 at 3 (Compl. ¶¶ 19-20), satisfy the “prolonged course of
specialized intellectual instruction” requirement. See id.
Relying exclusively on the allegations contained in the complaint, as the Court must at
this early stage of the proceedings, these arguments are unavailing. The “learned professional”
exemption, for example, excludes the “performance of routine mental, manual, mechanical or
physical work,” 29 C.F.R. § 541.301(b), and the complaint does not even purport to offer a
detailed account of Covington’s daily tasks. The Department of Labor regulations, moreover,
define “[t]he phrase ‘field of science or learning’” to include:
[T]he traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advance type.
29 C.F.R. § 541.301(c). Here, however, even if “the construction industry” is a “field of science
or learning,” the Court cannot determine on the bare allegations of the complaint whether
Covington’s role in that industry is more akin to that of “the traditional professions” or “the
mechanical arts or skilled trades.” Finally, although the complaint alleges that Covington earned
two certifications related to his work at FMC, see Dkt. 1 at 3 (Compl. ¶¶ 19–20), “[t]he best
prima facie evidence that an employee meets th[e specialized intellectual instruction]
requirement is possession of the appropriate academic degree.” 29 C.F.R. § 541.301(d). The
complaint says little about the certifications that Covington earned and, certainly, offers no prima
facie basis to equate those certifications with “degrees” earned through “prolonged” instruction.
Dkt. 1 at 3 (Compl. ¶¶ 19–20).
“Because the complaint does not itself establish that [the plaintiff] was an exempt
employee, ‘dismissal at this stage [based on the exemption is] inappropriate.’” Jones v.
9 Changsila, 271 F. Supp. 3d 9, 19 (D.D.C. 2017) (quoting de Csepel v. Republic of Hungary, 714
F.3d 591, 608 (D.C. Cir. 2013)).
B. District of Columbia Wage Payment and Collection Law (Count II)
Count II of the complaint asserts a claim under the DCWPCL for failure to pay
Covington overtime wages as required by the FLSA and the DCMWA. Dkt. 1 at 8–10 (Compl.
¶¶ 52–63). The complaint adequately alleges a claim under the DCWPCL: It alleges that
Covington worked hours for which he was not compensated. Id. at 8 (Compl. ¶ 47); see Craig v.
Not-for-Profit Hosp. Corp., 626 F. Supp. 3d 87, 108 (D.D.C. 2022) (“Because [the plaintiff]
allegedly continued to work at least 32 hours per week without being properly compensated for
his time, he adequately pleads a violation of the DCWPCL.” (internal citation omitted));
Akinsinde v. Not-For-Profit Hosp. Corp., 216 F. Supp. 3d 33, 43 (D.D.C. 2016) (holding the
plaintiff established a plausible claim under the DCWPCL by alleging “she routinely was not
paid for the break-time hours that she worked”). In seeking dismissal of this claim, FMC argues
that the DCMWA provides the exclusive remedy for unpaid overtime wages under D.C. law.
Dkt. 12-1 at 9. But, as explained below, that argument is squarely foreclosed by clarifying
amendments to the governing law.
Under D.C. law, two different statutes— the DCWPCL, D.C. Code § 32-1301 et seq., and
the DCMWA, D.C. Code § 32-1003 et seq.—combine to create the scheme relevant to this
litigation. Like the FLSA, the DCMWA sets a “minimum hourly wage,” id. § 32-1003(a)(5),
and imposes an overtime-pay requirement for “employment in excess of 40 hours” per week, id.
§ 32-1003(c). The DCMWA’s overtime rate, “1 1/2 times the regular rate,” id., tracks the
FLSA’s equivalent rate, see 29 U.S.C. § 207(a)(2)(C). Although the DCMWA sets the minimum
wages and overtime premium, the DCWPCL “establishes requirements for the payment of
10 [these] wages,” Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 146 (D.D.C. 2011) (citation
omitted). Under the DCWPCL, District employers are required to “pay all wages earned” by
“employees on regular paydays.” D.C. Code § 32-1302. “Wages,” in turn, are defined to
include “[o]vertime premium[s]” and all “[o]ther remuneration promised or owed[ ] . . .
[p]ursuant to District or federal law,” id. § 32-1301(3), thereby incorporating the minimum wage
and the overtime pay rules contained in the DCMWA, see id. § 32-1003(a) & (c).
FMC incorrectly argues that Covington lacks a claim for unpaid overtime wages under
the DCWPCL because the DCMWA offers the exclusive remedy for unpaid wages under District
law. See Dkt. 12-1 at 9-10. In making this argument, FMC relies on Driscoll v. George
Washington Univ., 938 F. Supp. 2d 19 (D.D.C. 2013). That case held that the plaintiff could not
bring claims for unpaid wages on the same facts under both the DCMWA and the DCWPCL
because allowing the plaintiff to proceed with a DCWPCL claim would “frustrate legislative
intent” given the narrower bounds of the DCMWA compared to the DCWPCL. Id. at 23. The
DCMWA, for example, “allows employers to avoid liquidated damages if they can establish that
they acted in ‘good faith’ and ‘had reasonable grounds’ to believe they were in compliance with
the statute.” Id. (citing D.C. Code § 32-1012(a)).
Amendments to the DCMWA and the DCWPCL, however, have since superseded the
reasoning in Driscoll, explicitly permitting employee to bring claims under either or both
statutes. As the Court explained in Gwapadinga v. Fescum Inc., 636 F.Supp.3d 71 (D.D.C.
2022), the D.C. Council amended the law in 2014, and the DCMWA now reads in part: “[a] civil
action may be commenced according to, and with all the remedies provided under, [the
DCWPCL].” D.C. Code § 32-1012(a). The DCWPCL, likewise, references the DCMWA,
providing: “a person aggrieved by a violation of this chapter [or] the Minimum Wage [ ]
11 Act . . . may bring a civil action . . . against the employer or other person violating this chapter
[or] the Minimum Wage [ ] Act.” D.C. Code § 32-1308(a)(1)(A). As a result, “[t]here is no
indication that either civil cause of action precludes the other.” Gwapadinga, 636 F.Supp.3d at
73. To the contrary, both statutes make clear that the remedies are complementary.
The Court will, accordingly, deny FMC’s motion to dismiss Count II. 1
C. Discrimination Claims (Counts III & V)
Covington also alleges discrimination based on race, color, and national origin in
Counts III and V under 42 U.S.C. § 1981 and the DCHRA, respectively, claiming that he was
treated less favorably than other similarly situated FMC employees due to his protected statuses.
Dkt. 1 at 10–11, 13–14 (Compl. ¶¶ 69, 81). FMC asks the Court to dismiss Covington’s claim
under Section 1981 on two grounds: first, because the complaint does not adequately allege a
covered contractual relationship between Covington and FMC; and, second, because Covington
bases his claim on national origin, which is not a protected status under Section 1981. Dkt. 12-1
at 10–13, 15. FMC also argues that Covington fails to allege sufficient facts to state a claim for
discrimination under both Section 1981 and the DCHRA. Id. at 13–14, 16. None of these
arguments is persuasive.
1. 42 U.S.C. § 1981 (Count III)
42 U.S.C. § 1981 grants all “persons within the jurisdiction of the United States” the
“same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C.
1 The Court notes that the complaint alleges that FMC is liable under the DCWPCL because it violated both the DCMWA and the FLSA. Dkt. 1 at 9 (Compl. ¶ 56). FMC does not question whether the D.C. Council may provide a remedy for a violation of a federal statute, nor do Covington’s allegations seeking to recover for an FLSA violation under the DCWPCL add meaningfully to the case, since the DCMWA parallels the FLSA. In any event, because the question is neither squarely presented nor briefed, the Court need not address it at this time. 12 § 1981(a). “[C]laims based on color, race and/or ethnicity are actionable under Section 1981.”
Uzoukwu v. Metro. Washington Council of Governments, 27 F. Supp. 3d 62, 66–67 (D.D.C.
2014) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287 (1976)).
As noted above, FMC challenges Covington’s Section 1981 claim on three grounds.
First, it argues that there is no covered contractual relationship between it and Covington, and
thus no activity protected by Section 1981. Dkt. 12-1 at 10–13. That argument, however,
ignores the procedural posture of the case and the fact that the Court must accept Covington’s
factual allegations as true and must draw all reasonable inferences in his favor. See Sparrow,
216 F.3d at 1113. The Court concludes that the complaint clears the modest hurdle that applies
at this stage of the proceeding. It alleges that Covington was employed by FMC “as a Lab
Technician in Washington, D.C. from approximately February 2015 through January 2021,” Dkt.
1 at 1–2 (Compl. ¶ 3), that at times he was a salaried employee and at other times he was an
hourly employee, id. at 2 (Compl. ¶¶ 7-8), that he had various “supervisor[s]” over the course of
his employment, id. at 4, 5 (Compl. ¶¶ 25, 30), that he was given specific tasks and duties to
perform and deadlines for doing so, id. at 4 (Compl. ¶ 27), and that an “[a]greement was
reached” to transfer him “to the Specialty Inspection department” at a set hourly wage, id. at 5
(Compl. ¶ 29). Those allegations are more than sufficient to allege the existence of a contractual
employment relationship.
Nor do the cases that FMC cites support a different conclusion. In Danco, Inc. v. Wal-
Mart Stores, Inc., 178 F.3d 8 (1st Cir. 1999), the First Circuit held that an individual who was
not in privity with the defendant (but rather owned an entity that had itself contracted with the
defendant) could not state a claim under Section 1981, while in Doe #1 v. Am. Fed’n of Gov’t
Emps., 554 F. Supp. 3d 75 (D.D.C. 2021), the Court concluded that plaintiffs could not state a
13 Section 1981 claim because they were never directly employed by the defendant, even though
they were employed by or owned businesses that contracted with the defendant. 554 F. Supp. 3d
at 108–09. Neither case dealt with a long-term employee who was allegedly subjected to
discrimination in the terms and conditions of his employment.
The more relevant case law, moreover, supports Covington’s theory of relief. Most
notably, this Court has recognized that D.C. law “views at-will employment as a species of
contract.” Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27, 32 (D.D.C.
1999) (citations omitted). 2 That Covington’s employment with FMC was at-will, see Dkt. 1 at
10 (Compl. ¶ 66), accordingly, does not undercut his ability to recover under Section 1981.
Moreover, “[c]ourts in this District consistently have held that a formal or term-specific
employment contract is not required to assert a claim under section 1981.” Moore v. D.C. Water
& Sewer Auth., No. 18-CV-00657, 2018 WL 5983387, at *3 (D.D.C. Nov. 14, 2018) (citations
omitted). In the words of another decision from this Court, Section 1981 “was intended to
‘provid[e] a vehicle for every employee to remedy racial discrimination in the workplace,’”
Bowyer v. District of Columbia, 910 F. Supp. 2d 173, 208 (D.D.C. 2012) (alteration in original)
(quoting Lauture v. Int’l Bus. Machs. Corp., 216 F.3d 258, 263 (2d Cir. 2000)), and that remedy
cannot be short circuited through the mere expedient of at-will employment.
FMC also argues that Covington’s Section 1981 claim fails because it alleges
discrimination on the basis of national origin. Dkt. 12-1 at 15. Although it is true that a
discrimination claim under Section 1981 cannot be sustained on the basis of national origin
alone, see Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 606 (1987), the racial discrimination
2 In the complaint, Covington alleges that the “events giving rise to [his] claims occurred within this District.” Dkt. 1 at 2 (Compl. ¶ 2). 14 the statute is understood to protect against “includes intentional discrimination based on
‘ancestry or ethnic characteristics,’” Kidane v. Nw. Airlines, Inc., 41 F. Supp. 2d 12, 17 (D.D.C.
1999) (quoting Saint Francis Coll., 481 U.S. at 613). In other words, “[n]ational origin
discrimination is cognizable under § 1981 only if based on racial or ethnic characteristics
associated with the national origin in question.” Wesley v. Howard Univ., 3 F. Supp. 2d 1, 3
(D.D.C. 1998) (quoting Saint Francis Coll., 481 U.S. at 613). Covington clears this hurdle by
alleging that he was subjected to discrimination on the basis of his race and skin color, and he
contrasts himself with “lighter-skinned” employees from Nepal, Sudan, and Ethiopia. See Dkt. 1
at 4-5, 6-7 (Compl. ¶¶ 25-28, 32-36). Those allegations are sufficient to survive FMC’s motion
to dismiss.
Finally, FMC argues that Covington has not alleged a plausible entitlement to relief
because he fails to offer more than “conclusory statements that actions were taken in connection
with his employment based on his race, color and national origin” or that “suggest a racially
discriminatory motive for any actions taken by FMC in connection with [his] employment.”
Dkt. 12-1 at 14. The Court disagrees. “[C]ourts can explore a plaintiff’s prima facie case at the
dismissal stage to determine whether the plaintiff can ever meet [his] initial burden to establish a
prima facie case,” but plaintiffs are not required to establish a prima facie case of discrimination
to survive a motion to dismiss. Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 90 n.6
(D.D.C. 2010) (citations and internal quotation marks omitted), aff’d, 424 F. App’x 10 (D.C. Cir.
2011); see also Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014) (“[A]t the motion to
dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead
the elements of a prima facie case.” (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490,
493 (D.C. Cir. 2008))).
15 In any event, Covington has alleged a prima facie case of discrimination. To allege a
prima facie case, a plaintiff must allege “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 (that is, an inference that his employer took the action because of his
membership in the protected class).” Brown, 774 F.3d at 1022 (quoting Forkkio v. Powell, 306
F.3d 1127, 1130 (D.C. Cir. 2002)). “A plaintiff can raise an inference of discrimination by
showing ‘that []he was treated differently from similarly situated employees who are not part of
the protected class.’” Id. (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). Here,
Covington alleges that he was treated less favorably than other FMC employees with lighter
skin, who were less skilled or highly trained than he was. He alleges, for example, that he was
the only lab technician who possessed certifications like the certification that he received from
the Council of Engineering Laboratories and the American Concrete Institute and that he
“excelled at his job.” Dkt. 1 at 3-4 (Compl. ¶¶ 19-22). He also alleges that Getachew and
Teloosa, both of whom have lighter skin than Covington, did not assist him as their positions
required them to do, but did help other lab technicians who also have lighter skin; that he was the
only lab technician paid on a salary basis and subsequently denied overtime pay; and that he was
assigned fewer work hours than colleagues who have lighter skin and at least one colleague who
was less qualified. Dkt. 1 at 4, 5, 6, 10–11 (Compl. ¶¶ 25–26, 30, 32, 69). These allegations
suffice at the motion-to-dismiss stage. See Nanko Shipping, USA v. Alcoa, Inc., 850 F.3d 461,
467 (D.C. Cir. 2017) (finding that “Nanko alleg[ing] that Alcoa, aware of Diané’s race, treated
the company he owns and operates less favorably than similarly situated white-owned
companies” was enough to state a claim under Section 1981).
16 2. District of Columbia Human Rights Act (Count V)
The same principles resolve Covington’s discrimination claim under the DCHRA. The
DCHRA prohibits employers from discriminating against employees because of “race, color,
religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender
identity or expression” and other characteristics. D.C. Code § 2-1402.11(a). DCHRA claims
and analogous claims brought under Section 1981 are analyzed in a similar manner. See
McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 3 (D.C. Cir. 2010) (citations
omitted) (analyzing claims under both Section 1981 and the DCHRA using the framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); McNair v. District of Columbia, 213
F. Supp. 3d 81, 86 (D.D.C. 2016) (holding that a plaintiff need not “prove” a prima facie case of
discrimination at the motion-to-dismiss stage but simply “allege that [ ]he (1) suffered an adverse
employment action (2) because of [his] membership in a protected category” (citations omitted)).
As explained above, Covington’s Section 1981 claim survives FMC’s motion to dismiss, and his
DCHRA claim survives for the same reasons.
The Court will, accordingly, deny FMC’s motion to dismiss Counts III and V.
D. Retaliation (Counts IV & VI)
Counts IV and VI allege that FMC retaliated against Covington in violation of
Section 1981 and the DCHRA, respectively, after he engaged in protected activity. Dkt. 1 at 12,
14–15 (Compl. ¶¶ 72–77, 85–91). FMC moves to dismiss both Counts. The Court is, once
again, unpersuaded.
1. 42 U.S.C. § 1981 (Count IV)
Section 1981 encompasses retaliation claims. CBOCS West, Inc. v. Humphries, 553 U.S.
442, 446 (2008). The elements of such claims are “(1) that an employee engaged in statutorily
17 protected activity; (2) that the employee suffered a materially adverse action by the employee’s
employer; and (3) that a causal link connects the two.” Howard R.L. Cook & Tommy Shaw
Found. ex rel. Black Emps. of Libr. of Cong., Inc. v. Billington, 737 F.3d 767, 772 (D.C. Cir.
2013) (citing Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)). Covington alleges
sufficient facts to “raise [his] right to relief above the speculative level” within the framework
used to analyze retaliation claims. See Twombly, 550 U.S. at 555.
First, “‘[t]o qualify as protected activity under [Section] 1981,’ a plaintiff’s actions must
oppose ‘a practice that the employee reasonably and in good faith believed was unlawful under
§ 1981.’” Yazzie v. Nat’l Org. for Women, No. CV 19-3845, 2021 WL 1209347, at *15 (D.D.C.
Mar. 30, 2021) (quoting Uzoukwu, 27 F. Supp. 3d at 70). FMC argues that complaining of
discrimination on the basis of national origin alone is not a protected activity. Dkt. 12-1 at 15–
16. But, as explained above, that is not all that Covington does—he also alleges that he was
discriminated against because of his race and color and that he complained of as much to FMC
management on numerous occasions. Dkt. 1 at 5, 6 (Compl. ¶¶ 28, 34, 36). Between January
and August 2020, Covington “repeatedly complained to his supervisor [Gebreyyohannis] that the
failure of Robel and Teloosa to assist him with the concrete samples and debris was racially
motivated” and “also complained to FMC CEO Fadil Abdelfattah . . . that Robel, Teloosa and
[Gebreyyohannis] failed to provide him assistance or correct the situation and that this failure
was racially motivated.” Id. at 5 (Compl. ¶ 28). He also lodged two complaints in January 2021,
including one over email, about being assigned fewer work hours than colleagues, citing racism
and sexual harassment as the causes. Id. at 6–7 (Compl. ¶¶ 34, 36). These complaints constitute
protected activity. Tsehaye v. William C. Smith & Co., Inc., 402 F. Supp. 2d 185, 197 (D.D.C.
2005) (plaintiff’s discrimination complaint to superiors “suffices as protected activity: the law
18 does not require a formal EEOC or court filing” (citations omitted)), aff’d, 204 F. App’x 901
(D.C. Cir. 2006).
Covington also adequately alleges that he suffered “materially adverse action[s].”
Adverse actions are material when they “would dissuade a reasonable employee from engaging
in protected activity.” Yazzie, 2021 WL 1209347, at *14 (citing Baloch v. Kempthorne, 550 F.3d
1191, 1198 & n.4 (D.C. Cir. 2008)). To be sure, retaliation claims are not a vehicle to
“micromanage supervisor decisions or sanction trivial harms,” id. at *15 (quoting Swann v. Off.
of Architect of Capitol, 73 F. Supp. 3d 20, 27 (D.D.C. 2014)), but, again, more is at issue here.
FMC suggests that the only retaliatory action Covington alleges is his transfer to the Specialty
Inspection department. Dkt. 17 at 5. But that is plainly incorrect. After raising numerous
complaints with superiors, Covington was not only transferred to a different department but was
also assigned a dwindling number of work hours and eventually terminated. Dkt. 1 at 12
(Compl. ¶ 75). Termination is “obviously” a materially adverse action. Harris v. D.C. Water &
Sewer Auth., 922 F. Supp. 2d 30, 34 (D.D.C. 2013) (citation omitted), rev’d on other grounds,
791 F.3d 65 (D.C. Cir. 2015). FMC’s reduction of Covington’s work hours is also materially
adverse. See Than v. Radio Free Asia, 496 F. Supp. 2d 38, 49 (D.D.C. 2007) (“[A] reasonable
employee would consider [ ] a reduction in work hours (and the resulting reduction in pay) . . . to
be materially adverse.” (citation omitted)).
Covington has also plausibly alleged causation. At this stage of the proceeding, it is
enough to allege that “the employer had knowledge of the employee’s protected activity,
and . . . the adverse personnel action took place shortly after that activity.” Holcomb v. Powell,
433 F.3d 889, 903 (D.C. Cir. 2006) (alteration in original) (quoting Mitchell v. Baldrige, 759
F.2d 80, 86 (D.C. Cir. 1985)). Here, the complaint alleges that FMC management was aware of
19 Covington’s protected activity, see Dkt. 1 at 12 (Compl. ¶ 74), and that the alleged retaliatory
actions occurred shortly after he did so: Covington allegedly complained of racial discrimination
on or about January 3, 2021. Id. at 6 (Compl. ¶ 34). Over the next two weeks, his assigned work
hours were reduced to zero, id. (Compl. ¶ 35), and that same month, FMC terminated
Covington’s employment, id. at 7 (Compl. ¶ 38). This alleged sequence of events falls well
within the timeframe courts have treated as sufficient to support a plausible inference of
causation. See, e.g., McIntyre v. Peters, 460 F. Supp. 2d 125, 133 (D.D.C. 2006) (noting, as a
general matter, that “[t]his Court has often followed a three-month rule to establish causation on
the basis of temporal proximity alone” (citations omitted)); Hamilton v. Geithner, 666 F.3d 1344,
1357-58 (D.C. Cir. 2012) (finding two months was sufficient, but emphasizing that fact-specific
nature of the inquiry); Goos v. Nat’l Ass’n of Realtors, 715 F. Supp. 2, 4 (D.D.C. 1989) (holding
five weeks was sufficient).
2. District of Columbia Human Rights Act (Count VI)
Once again, what is true of Covington’s federal claim is equally true of his claim under
D.C. law. The DCHRA proscribes “retaliat[ion] against . . . any person . . . on account of having
exercised or enjoyed . . . any right granted or protected under this chapter.” D.C. Code § 2-
1402.61(a). The required elements for claims of retaliation under the DCHRA closely track
those under Section 1981. A plaintiff “must show that (1) [ ]he was engaged in a protected
activity or that [ ]he opposed practices made unlawful by the DCHRA, (2) the employer took an
adverse action against [him], and (3) a causal connection existed between [his] opposition or
protected activity and the adverse action taken against [him].” Fragola v. Kenific Grp., Inc., No.
CV 21-1423, 2022 WL 1908824, at *8 (D.D.C. June 3, 2022) (quoting Propp v. Counterpart
20 Int’l, 39 A.3d 856, 863 (D.C. 2012)). FMC here argues Covington fails to establish a “causal
link.” Dkt. 12-1 at 18. That argument fails for the reasons given above.
Finally, the Court is unpersuaded by FMC’s contention that Covington’s retaliation claim
fails as a matter of law because his hours had been reduced even before he complained of
discrimination. That is a merits argument, which FMC is free to raise at a later time. For present
purposes, it is sufficient that Covington alleges that his hours were further reduced, and he was
terminated, after he complained. Whether those action were the product of retaliation or merely
a continuation of downward spiral that had already began is a question for another day.
The Court will, accordingly, deny FMC’s motion to dismiss Counts IV and VI.
CONCLUSION
For these reasons, it is ORDERED that FMC’s motion to dismiss, Dkt. 12, is DENIED.
SO ORDERED. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: August 10, 2023