UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TYRONE GIBSON,
Plaintiff,
v. Civil Action No. 23-cv-3371
KIRKLAND & ELLIS, LLP,
Defendant.
MEMORANDUM OPINION
Defendant Kirkland & Ellis, LLP, a global law firm, promoted Plaintiff Tyrone Gibson
three times within its technology department. But Plaintiff alleges that after his third promotion,
he experienced multiple instances of discrimination from both his subordinates and supervisor. He
repeatedly conveyed his concerns to his supervisor and Human Resources but was put on a
Performance Improvement Plan and ultimately fired.
Plaintiff brings fourteen counts of discrimination pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 1981, and the D.C. Human Rights Act. Defendant moved to dismiss six
counts of Plaintiff’s Amended Complaint. Def.’s Mot. to Dismiss at 1–18, ECF No. 18-1 (“Def.’s
Mot.”). The court will GRANT Defendant’s Motion as to Plaintiff’s hostile work environment
claims alleged in Counts II, V, VIII, and his retaliatory hostile work environment claims in Counts
XIII and XIV, because Plaintiff fails to state a claim. The court will DENY Defendant’s Motion
to Dismiss on Count XII, however, because Plaintiff plausibly alleges discrimination based on
family responsibilities.
Page 1 of 12 I. BACKGROUND
A. Factual Background
Defendant hired Plaintiff, who is a Black man, in December 2018, as a Technology
Analyst, Level I. Am. Compl. ¶ 11, ECF No. 16 (“Am. Compl.”). In January 2020, Plaintiff was
promoted to Level II, id. ¶¶ 12–14, and in the following two years, Defendant twice recognized
him for outstanding performance. Id. In July 2022, Defendant again promoted Plaintiff to
Technology Support Supervisor, managing ten subordinates. Id. ¶ 15. When he began this role,
Plaintiff started working earlier hours, 7:30 A.M. to 4:00 PM, because he was responsible for
picking up his daughter and taking her to after-school activities every weekday except Thursday.
Id. ¶ 17.
i. Work Disputes
Within Plaintiff’s first month as a supervisor, one of his subordinates, Sam Waskowicz, a
White male, told him that he would not work under Plaintiff’s authority “because [he] is Black.”
Id. ¶ 23. Plaintiff immediately reported this comment to his direct supervisor, Associate Director
Kenneth Kim. Id. ¶ 24. Kim held two meetings with Plaintiff and his subordinates to address
Waskowicz’s behavior. Id. ¶ 26.
In November 2022, another subordinate employee, Michel[sic] Lima, also questioned
Plaintiff’s authority. Id. ¶ 29; Def.’s Ex. A at 3, ECF No. 18-2. Plaintiff complained about Lima’s
behavior to Kim. Id. ¶ 30. In response, Kim downplayed Plaintiff’s allegations, “suggesting that
he believed [Plaintiff] was in the wrong.” Id. ¶ 31.
In another meeting sometime between December 2022 and January 2023, Kim called
Plaintiff “stupid.” Id. ¶ 32. Plaintiff does not allege a reason for this incident, but, after he
Page 2 of 12 complained about Kim’s comment to Anna Freeman, the Human Resources coordinator, Kim read
a prepared apology to Plaintiff. Id. ¶ 33–34.
In February 2023, Lima disregarded Plaintiff’s directions to perform inventory
management and other work in line with his job duties. Id. ¶ 35. Plaintiff complained in writing
to Freeman. Id. ¶ 36. Defendant took no action. Id. ¶ 39.
ii. Performance Improvement Plan
Months later, on March 1, 2023, Kim placed Plaintiff on a Performance Improvement Plan
(“PIP”). Id. ¶ 40. Plaintiff’s performance had never been at issue previously. Id. ¶ 42. The PIP
reported that Plaintiff was not at the level expected of a Technology Support Supervisor and
directed him to make any further employee complaints to Kim, not to Human Resources. Id.
On March 6, 2023, Plaintiff told Kim that his subordinates were continuing to harass him.
Id. ¶ 43. Kim told Plaintiff to “stop talking about the past” and not to speak to Human Resources
regarding his complaints. Id. ¶ 44. A week later, Plaintiff sent a memorandum to Human
Resources questioning why he was placed on the PIP, and relayed Kim’s instruction to not report
his concerns to Human Resources. Id. ¶ 45–47. That same week, multiple senior directors told
Plaintiff in meetings and on phone calls to “stop looking in the rearview mirror.” Id. ¶¶ 48–50.
In March 2023, Waskowicz stated that he “did not have to listen to [Plaintiff],” and that
Plaintiff was “not his boss anymore.” Id. ¶ 51. That same month, Kim learned that someone in
the technology department “accidentally” wiped a former employee’s laptop and reprimanded only
the three Black employees in the department—including Plaintiff—and ordered them to undergo
additional preservation training. Id. ¶¶ 53–54. Waskowicz then wrote an “angry” email to the
technology department, “attack[ing] [Plaintiff] and the process [Plaintiff] had already put into
place to avoid preservation issues.” Id. ¶ 56. In this email, Wasckowicz disclosed that Lima was
Page 3 of 12 responsible for the mishandling of the laptop. Id. Kim never reprimanded Lima nor mandated the
same training for him. Id. ¶ 57.
iii. Work Schedule Change
On March 27, 2023, Kim directed Plaintiff to change his schedule to a later shift. Id. ¶ 58.
Kim insisted on the change, even though Plaintiff told him that he could not work the later shift
because he had to “drive his daughter to after-school activities every day of the week, except
Thursdays.” Id. ¶¶ 58–60.
On April 10, 2023, Plaintiff reported Waskowicz’s comments and behavior to Human
Resources. Id. ¶ 62. The next day, Defendant fired him through a Separation Agreement, effective
the same day, accusing him of inappropriately accessing data without proper authorization and
sending proprietary information to his personal email address. Id. ¶ 64–65.
B. Procedural History
In Counts II, V, and VIII, Plaintiff alleges hostile work environment claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the D.C. Human Rights Act. Id. ¶¶ 76–80,
91–95, 106–10. In Counts XIII and XIV, Plaintiff also alleges retaliation under Title VII and the
D.C. Human Rights Act (“DCHRA”). 1 Id. ¶¶ 131–39. Finally, in Count XII, Plaintiff alleges
family responsibilities discrimination under the DCHRA. Id. ¶¶ 126–30. Defendant moves to
dismiss these counts under Federal Rules of Civil Procedure 12(b)(6), arguing that Plaintiff (1)
fails to state a claim for a hostile work environment; (2) fails to state a claim for a retaliatory hostile
work environment; (3) fails to exhaust administrative remedies under Title VII for his retaliation
1 The Amended Complaint incorrectly numbers the claims, listing two as “Count 12.” Am. Compl. at 14. For the purposes of this Memorandum Opinion, and the accompanying order, the family responsibility discrimination claim will be Count XII; id. ¶¶ 126–30; the retaliatory hostile work environment claim under Title VII will be Count XIII, id. ¶¶ 131–35; the retaliatory hostile work environment claim under DCHRA will be Count XIV, id. ¶¶ 136–39.
Page 4 of 12 claim; and (4) fails to state a claim of family responsibilities discrimination under the DCHRA.
See Def.’s Mot. at 5–15.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a plaintiff fails to state a
claim upon which relief can be granted. Peavy v. Holder, 657 F. Supp. 2d 180, 185 (D.D.C. 2009).
Courts “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 and citation omitted). That said, “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 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. A court need not accept as true “a
legal conclusion couched as a factual allegation,” nor “inferences . . . unsupported by the facts set
out in the complaint.” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotations
marks and citations omitted).
III. ANALYSIS
A. Hostile Work Environment
Plaintiff brings hostile work environment claims (Counts II, V, and VIII) under three
different statutes: Title VII, Section 1981, and the DCHRA. Am. Compl. ¶¶ 76–80, 91–95, 106–
10. But all three counts warrant dismissal for the same reason: Plaintiff fails to state a claim that
he endured severe or pervasive harassment.
To state a hostile work environment claim under Title VII and Section 1981, Plaintiff must
show “that [his] employer subjected [him] to discriminatory intimidation, ridicule, and insult that
Page 5 of 12 is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive
working environment.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (internal
quotation marks and citations omitted). The constituent acts must be “‘adequately linked’ such
that they form ‘a coherent hostile environment claim.’” Baird v. Gotbaum, 792 F.3d 166, 168–69
(D.C. Cir. 2015) (quoting Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011).
The incidents Plaintiff alleges spread across eight months and do not amount to the severe
or pervasive, race-based harassment that would constitute a hostile work environment. Chief
among Plaintiff’s allegations is that in July 2022, one of his subordinates protested his direction
explicitly because of Plaintiff’s race. Am. Compl. ¶ 23. Although Plaintiff encountered more
difficulties with his co-workers from November 2022 until his termination in early April 2023, id.
¶¶ 32–34, 36, 39, 51, the “objective severity of harassment should be judged from the perspective
of a reasonable person in the plaintiff’s position, considering all the circumstances.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal quotation marks and citation
omitted).
Plaintiff alleges several individual disputes with his subordinates and supervisors that fail
to collectively establish a hostile work environment. He alleges that in November 2022, Michele
Lima, a new hire on his team, “disrespected” him, “questioned his authority,” and “disregarded his
directions.” Am. Compl. ¶ 29. Meanwhile, Kim called Plaintiff “stupid.” Id. ¶ 32. Defendant
met with Kim and required him to read a “prepared apology” to Plaintiff. Id. ¶ 34. Lima “refused
to follow” Plaintiff’s directions again in February 2023. Id. ¶ 35. In March 2023, the disputes
continued. Plaintiff was put on a PIP for his work performance for the first time, while informing
his supervisors “that his subordinates continue[d] to harass and sabotage him.” Id. ¶¶ 40, 43. In
response, Defendant repeatedly told him to “stop talking about the past,” id. ¶ 44; see also id.
Page 6 of 12 ¶¶ 48–50, even though Waskowicz continued to disobey Plaintiff, saying that he was “not his boss
anymore.” Id. ¶ 51. Defendant reprimanded Plaintiff and his fellow Black supervisees for
“accidentally” id. ¶ 53, wiping a former employee’s laptop, despite the fact that Plaintiff “was out
of the office” when the alleged mistake occurred. Id. ¶ 55. During the last week of March, Kim,
Plaintiff’s direct supervisor, made matters worse by directing Plaintiff to change his work schedule
to a later shift, although he was told that that schedule conflicted with Plaintiff’s obligation to pick
up his daughter from her after-school activities. Id. ¶ 58–63. Plaintiff was fired weeks later. Id.
¶ 64.
Individual acts are only actionable as part of a hostile work environment claim if the
conduct is so “extreme to amount to a change in the terms and conditions of employment.” George
v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (internal quotation marks and citation omitted).
Although Plaintiff endured repeated disputes with his co-workers between November 2022,
January 2023, and in March and April 2023, “occasional name-calling, rude emails, lost tempers
and workplace disagreements” are insufficient to support a hostile work environment claim. See
Magowan v. Lowery, 166 F. Supp. 3d 39, 70 (D.D.C. 2016). Derogatory comments by an employer
to an employee, even when tied to the employee’s national origin, can fail to establish a hostile
work environment if dispersed over time and if the constituent acts are not adequately linked. See
Jackson v. Gallaudet University, 169 F. Supp. 3d 1, 5 (D.D.C. 2016) (finding that demeaning
comments by an employer to an employee directly about the employee’s national origin over a
two-year time span did not constitute severe harassment for a hostile work environment claim).
Similarly, the DCHRA provides that “[i]t shall further be an unlawful discriminatory
practice to engage in harassment based on one or more protected characteristics specified in
subsection (a),” which includes race and color. D.C. Code §§ 2-1402.11(a), (c-2)(1). The DCHRA
Page 7 of 12 defines harassment as: “conduct, whether direct or indirect, verbal or nonverbal, that unreasonably
alters an individual’s terms, conditions, or privileges of employment or has the purpose or effect
of creating an intimidating, hostile, or offensive work environment.” Id. § (c-2)(2)(A). To
determine whether harassment exists, the DCHRA outlines the following factors: the frequency of
the conduct; the duration of the conduct; the location where the conduct occurred; whether the
conduct involved threats, slurs, epithets, stereotypes, or humiliating or degrading conduct; and
whether any party to the conduct held a position of formal authority over or informal power relative
to another party. Id. § (c-2)(3).
For the same reasons discussed above, the court finds that Defendant’s alleged actions
cannot sustain a hostile work environment claim under the DCHRA either. Elhusseini v. Compass
Grp. USA, Inc., 578 F. Supp. 2d 6, 18 (D.D.C. 2008) (citing Sparrow, 216 F.3d at 1114) (noting
that the legal standard for discrimination under the DCHRA is substantively the same as under
Title VII). Again, the conduct at issue took place over eight months, and many of the disputes
involved Plaintiff’s subordinates, not just his supervisors. Am. Compl. ¶¶ 29–64. On at least two
occasions, management acted when Plaintiff reported discriminatory behavior. Id. ¶¶ 26, 34.
Therefore, Plaintiff’s hostile work environment claims, Counts II, V, and VIII, will be dismissed.
B. Retaliatory Hostile Work Environment
In Counts XIII and XIV, Plaintiff alleges that he was subjected to a hostile work
environment under Title VII and the DCHRA in retaliation for his protected activity. Am. Compl.
¶¶ 131–39. As with Counts II, V, and VIII, because Plaintiff fails to allege a hostile work
environment, Counts XIII and XIV must also be dismissed.
To state a prima facie case of retaliation under Title VII and the DCHRA, Plaintiff must
show that: (1) he engaged in statutorily protected activity, (2) the employer took an adverse
Page 8 of 12 employment action against him, and (3) a causal connection existed between the two. Hussain v.
Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (Title VII); Howard Univ. v. Green, 652 A.2d 41,
45 (D.C. 1994) (DCHRA); see Bryant v. D.C., 102 A.3d 264, 268 (D.C. 2014) (noting that the
analysis for DCHRA retaliation is the same for Title VII). The D.C. Circuit has recognized that
“a hostile work environment can amount to retaliation under Title VII.” Hussain, 435 F.3d at 366;
see also Singletary v. D.C., 351 F.3d 519, 526 (D.C. Cir. 2003).
But, for the reasons discussed above, infra at 5–6, Plaintiff fails to allege a hostile work
environment, and consequently his retaliatory hostile work environment also fails. Counts XII and
XIV will therefore be dismissed.
C. Family Responsibilities Discrimination
Finally, Count XII alleges family responsibilities discrimination under the DCHRA. Am.
Compl. ¶¶ 126–30. This count survives Defendant’s Motion to Dismiss.
To state a claim for family responsibilities discrimination, a plaintiff must plead facts
showing 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 based on his family
responsibilities. Abebio v. G4S Gov’t Sols., Inc., 72 F. Supp. 3d 254, 257 (D.D.C. 2014). The
DCHRA defines “family responsibilities” to include “a contributor to the support of a person or
persons in a dependent relationship[.]” D.C. Code § 2-1401.02(12).
The parties do not dispute that Plaintiff is a member of a protected class. Am. Compl. ¶ 9;
Def.’s Mot. at 13–15. Defendant challenges whether Plaintiff satisfies the second element, arguing
that a schedule change, “without more, such as a reduction in salary, pay, grade, or benefits” is not
an adverse employment action. Def.’s Mot. at 13–14. But the Supreme Court in Burlington
Northern & Santa Fe Railway Company v. White, 548 U.S. 53, 69 (2006), cautioned that in
Page 9 of 12 evaluating whether an employment action is materially adverse, attention must be paid to the
surrounding circumstances. It specifically noted that although a “schedule change in an
employee’s work schedule may make little difference to many workers, [it] may matter
enormously to a [parent] with school-age children.” Id. “[D]epending on the context, a schedule
change in an employee’s work schedule . . . could deter a reasonable employee from complaining
and therefore might be actionable.” Burrell v. Shepard, 321 F. Supp. 3d 1, 13 (D.D.C. 2018)
(quoting Burlington N. & Santa Fe Ry., 548 U.S. at 69) (second alteration removed) (internal
quotation marks omitted).
Further, the two cases upon which Defendant relies fail to support its contention. In
Mohmand v. Broadcasting Board of Governors, 2018 WL 4705800, at *5 (D.D.C. Sept. 30, 2018),
the court did not hold that schedule changes can never be an adverse action, only that Plaintiff
failed to specify how his schedule changes were discriminatory. Nor does Burke v. Inter-Con Sec.
Sys., Inc, 926 F. Supp. 2d 352, 358 (D.D.C. 2013), help Defendant’s argument; in that case,
plaintiff had “not submitted any evidence of a scheduling conflict.” Id.
Here, it is plausible that Plaintiff’s schedule change adversely affected his employment.
He alleges that he needed to work earlier hours to collect his daughter from school and take her to
her activities. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69. And he argues that the schedule
change had a “devastating impact” on his family responsibilities. Pl.’s Opp’n at 21, ECF No. 21
(“Pl.’s Opp’n”).
As to the third element, Plaintiff contends that Kim changing his hours raises an inference
of discrimination because Kim knew “full well” of his family responsibilities when he did so. Id.;
Briscoe v. Costco Wholesale Corp., 61 F. Supp. 3d 78, 86 (D.D.C. 2014) (denying a motion to
dismiss a DCHRA claim where plaintiff was a parent that had “to miss or leave work” to take care
Page 10 of 12 of his “autistic son, another son with legal problems, and a daughter who was sexually assaulted”).
The court agrees. When Plaintiff began his role as Technology Support Supervisor in July 2022,
he started working earlier hours, 7:30 to 4:00 PM, because of his childcare responsibilities. Am.
Compl. at ¶ 17. Not until March 17, 2023, did Kim instruct Plaintiff to change his work schedule
to a later shift. Id. ¶ 58. In response, Plaintiff “explained that he had to be on the earlier shift
because he had to drive his daughter to after-school activities every day of the week, except
Thursdays.” Id. ¶ 59. Kim was thus on notice that Plaintiff had a family responsibility that
necessitated his early work schedule. Nonetheless, Kim “directed” Plaintiff to change his work
schedule “the following week.” Id. ¶ 60.
Indeed, when Plaintiff complained to the Associate Relations Coordinator about Kim’s
decision, he emphasized that he “told” Kim of his “family obligations,” but that Kim was trying
to “punish” him. Id. ¶ 61. Because Kim knew of Plaintiff’s parental responsibilities when he
decided to change his work schedule without giving a work-related reason, it is plausible that Kim
could have discriminated against Plaintiff on that basis. See Miles v. Univ. of the D.C., No. 12-
378, 2013 WL 5817657, at *13 (D.D.C. Oct. 30, 2013) (finding that the plaintiff had raised an
inference of family responsibilities discrimination under the DCHRA sufficient to survive a
motion to dismiss where, among other things, the plaintiff had alleged that she received a letter
from a superior “that appear[ed] to equate the plaintiff’s maternity leave with ‘abandon[ing] the
[UDC] [S]ervice [C]enter and its clients’” and that “suggest[ed] that the plaintiff should be
terminated from her position” in order to improve the center’s performance).
Defendant’s only response is that Plaintiff does not allege that Kim changed his schedule
“because of his family responsibility,” Def.’s Mot. at 15, arguing that Plaintiff only alleges a
“conversation” between him and Kim “that does not include any facts or statements suggest[ing]
Page 11 of 12 that” Kim “changed the schedule because Plaintiff is a parent or had childcare responsibilities.”
Id. at 14–15. But at this juncture, accepting Plaintiff’s allegations as true, Defendant nevertheless
directed Plaintiff to work a later shift despite being informed of his family responsibilities and
after Plaintiff had been working the earlier shift for several months without complaint. That gives
rise to an inference of discrimination, sufficient to survive a Rule 12(b)(6) challenge. Abebio, 72
F. Supp. 3d at 257.
Accordingly, Count XII does not warrant dismissal.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT IN PART and DENY IN PART
Defendant’s Limited Motion to Dismiss. A corresponding order will follow.
Date: March 31, 2025
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 12 of 12