UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ERNEST HUNTER, ) ) Plaintiff, ) ) v. ) Civil No. 09-1491 (RMC) ) DISTRICT OF COLUMBIA CHILD ) AND FAMILY SERVICES AGENCY, ) ) Defendant. ) )
MEMORANDUM OPINION
Ernest Hunter, pro se, sues his employer, the District of Columbia’s Child and
Family Services Agency (“CFSA”), with a four count Complaint alleging discrimination,
retaliation, and a hostile work environment in violation of Title VII, 42 U.S.C. § 2000e-16, as
well as a claim under the D.C. Whistleblower Protection Act, D.C. Code § 1-615.54. CFSA
moves to dismiss. As explained below, the motion will be granted in part and denied in part.
The hostile work environment claim (Count III) will be dismissed for failure to state a claim
because the allegations, taken as true, do not meet the legal standard for such a claim. In all other
respects, the motion will be denied.
I. FACTS
Mr. Hunter, an African American man, is a Contract Compliance Officer with
CFSA and he has been employed in this position since April 2007. Am. Compl. [Dkt. # 3] ¶¶ 5,
10. Mr. Hunter’s responsibilities include making sure CFSA’s Contracts and Procurement
Administration complies with applicable rules and regulations. Id. ¶ 11. On July 1, 2008, Mr. Hunter sent a letter to Ronnie Charles, then Senior Deputy Director for Administration at CFSA,
complaining about the “lack of experience among staff in key positions, cronyism, gender
discrimination in the application of the agency’s Alternative Work Schedule Program,
unprofessional, negative and malicious behavior and comments from management,
discriminatory practices and the lack of adherence to Contracting rules and regulations.” Id.
¶ 13. Mr. Hunter also claims that Latonya Bryant, then Acting Program Manager at CFSA,
attempted to have two other employees “forge funding documents” in anticipation of an audit,
and Mr. Hunter informed both his immediate supervisor and Mr. Charles about this. Id. ¶¶ 13-
14.
Mr. Hunter wrote a second letter of complaint to Mr. Charles, alleging that Ms.
Bryant allowed her friends to come to work at various times without consequences while at the
same time Ms. Bryant recommended to Mr. Charles that Mr. Hunter’s request for an Alternative
Work Schedule be denied. Id. ¶ 15. This second letter prompted an August 7, 2008, meeting
attended by Mr. Hunter, Mr. Charles, Ms. Bryant, and Catherine Higgins, then Acting Contracts
Administrator at CFSA. Mr. Hunter complained at that meeting about “mismanagement and
circumvention of the rules” and informed the group that he had complained about the alleged
forgery to the Office of Inspector General. Id. Mr. Charles informed Mr. Hunter that he was to
report directly to Latonya Bryant; previously Mr. Hunter reported to Catherine Higgins. Id. ¶ 16.
Also at the August 7 meeting, Mr. Charles, Ms. Bryant, and Ms. Higgins allegedly disparaged
Mr. Hunter’s work, and Ms. Bryant and Ms. Higgins unfairly accused Mr. Hunter of being
hostile and threatening to coworkers. Id.
The next day, August 8, 2010, Mr. Hunter was required to attend a meeting with
-2- Ms. Bryant, Ms. Higgins, human resource specialist Yasmine Mitchell, and an unnamed man
who was a “classification generalist.” Id. ¶ 18. At this meeting, Ms. Bryant accused Mr. Hunter
acting in a threatening manner the previous day and ordered Mr. Hunter to take a fitness for duty
examination at Mr. Hunter’s expense. Id. ¶¶ 19-21. CFSA placed Mr. Hunter on administrative
leave with pay pending completion of the examination. Id. ¶ 21. Mr. Charles and Ms. Higgins
allegedly did not authorize the order for a fitness for duty exam. Id. ¶ 23.
As a result of the foregoing, Mr. Hunter filed a complaint of discrimination and
retaliation with the D.C. Office of Human Rights. On May 26, 2009, the Office of Human
Rights sent him a Letter of Determination, indicating a finding of no probable cause. Id. ¶ 21.
Mr. Hunter sought reconsideration, but the Office of Human Rights never responded. See Pl.’s
Opp’n [Dkt. # 11] at 2.
Mr. Hunter also alleges that he submitted a letter to the D.C. Office of Risk
Management, alleging discrimination and the whistleblower claims. On November 4, 2008 the
Office of Risk Management acknowledged receipt of Mr. Hunter’s claims but did not take any
action. Id. ¶ 31.
Consequently, Mr. Hunter filed suit in this Court asserting that he is the victim of
race and gender discrimination, a hostile work environment, and retaliation all in violation of
Title VII and that he is a victim under the D.C. Whistleblower Protection Act. After filing this
suit, Mr. Hunter received a right to sue letter dated December 10, 2009, from the Equal
Employment Opportunity Commission (“EEOC”). Id. CFSA has moved to dismiss, and Mr.
Hunter opposes.
-3- II. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated
a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A
complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The
facts alleged “must be enough to raise a right to relief above the speculative level.” Id. Rule 8(a)
requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3.
“[A] complaint needs some information about the circumstances giving rise to the claims.”
Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)
(emphasis in original).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.”
Twombly, 550 U.S. at 570. When a plaintiff pleads factual content that allows a court to draw
the reasonable inference that the defendant is liable for the misconduct alleged, then the claim
-4- has facial plausibility. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id.
A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations. When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950.
III. ANALYSIS
A. Non Sui Juris
CFSA first argues that this case should be dismissed because it is non sui juris,
i.e., it is not an entity that can be sued. Without statutory authority to the contrary, “bodies
within the District of Columbia government are not suable as separate entities.” Braxton v. Nat’l
Capital Hous. Auth., 396 A.2d 215, 216 (D.C. 1978). Thus, in a Title VII case against the
District of Columbia, the District is the proper defendant, not its agencies. Raney v. District of
Columbia, 892 F. Supp. 283, 289 (D.D.C. 1995). However, when a plaintiff proceeds pro se, a
court liberally construes his pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972). When a pro
se plaintiff erroneously names a D.C. agency instead of the District of Columbia itself, it is
appropriate to automatically substitute the District for its agencies. See, e.g., Ennis v. Lott, 589
F. Supp.3d 33, 37 (D.D.C. 2008). Accordingly, the Court construes Mr. Hunter’s pro se
-5- complaint as intending to state claims against the District of Columbia, and the District will be
substituted for CFSA as the defendant in this action.
B. Exhaustion
The District initially argued that this case should be dismissed for failure to
exhaust administrative remedies because Mr. Hunter failed to allege that had he received a right-
to-sue letter from the EEOC. In response, Mr. Hunter indicates that after his filed the Complaint
on August 7, 2009, he received a right-to-sue letter from the EEOC dated December 10, 2009.
See Pl.’s Opp’n [Dkt. # 11] 2. The District does not contest this fact in its Reply and thus the
exhaustion argument is deemed abandoned.
C. Hostile Work Environment
Title VII of the Civil Rights Act of 1964 prohibits an employer from
discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions,
compensation, terms and conditions of employment, and classifying employees in a way that
would adversely affect their status as employees. 42 U.S.C. § 2000e-16. The Supreme Court has
determined that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a
congressional intent to strike at the entire spectrum of disparate treatment of men and women in
employment, which includes requiring people to work in a discriminatorily hostile or abusive
environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 64 (1986)). Therefore, Title VII is violated when a plaintiff demonstrates
that the “workplace is permeated with discriminatory intimidation, ridicule, and insult” and that
this behavior is “sufficiently severe or pervasive [as] to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. at 21. To establish a prima facie
-6- hostile work environment claim, a plaintiff must demonstrate (1) that he is a member of a
protected class, (2) that he was subject to unwelcome harassment, (3) that the harassment
occurred because of his race or gender, (4) that the harassment affected a term, condition, or
privilege of employment, and (5) that the employer knew or should have known of the
harassment, and failed to act to prevent it. Lester v. Natsios, 290 F. Supp. 2d 11, 22 (D.D.C.
2003) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
In determining whether a hostile work environment claim is substantiated, a court
must look at all the circumstances of the plaintiff’s employment, specifically focusing on such
factors as the frequency of the discriminatory conduct, its severity, whether it was threatening
and humiliating or was merely offensive, and whether it unreasonably interfered with the
employee’s work performance. Harris, 510 U.S. at 23. The conduct must be sufficiently
extreme to constitute an alteration in the conditions of employment, so that Title VII does not
evolve into a “general civility code.” Faragher v. Boca Raton, 524 U.S. 775, 788 (1998).
Consequently, “ ‘mere utterance of an . . . epithet which engenders offensive feelings in an
employee’ does not sufficiently affect the conditions of employment to implicate Title VII.”
Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 91). Further, “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Faragher, 524 U.S. at 778. A plaintiff
must demonstrate that the alleged events leading to the hostile work environment were
connected, since “discrete acts constituting discrimination or retaliation claims . . . are different
in kind from a hostile work environment claim” that must be based on severe or pervasive
discriminatory intimidation or insult. Lester, 290 F. Supp. 2d at 33 (citing AMTRAK v. Morgan,
-7- 536 U.S. 101, 115-16 (2002)). “Workplace conduct is not measured in isolation.” Clark County
Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001).
For example, in George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005), the D.C.
Circuit held that statements by three employees over a six-month period telling a plaintiff to “go
back where she came from,” separate acts of yelling and hostility, and allegations that the
plaintiff was not given the type of work she deserved, were isolated instances that did not rise to
the level of severity necessary to find a hostile work environment. Id. at 416-17. Similarly, in
Singh v. United States House of Representatives, 300 F. Supp. 2d 48 (D.D.C. 2004), this Court
found that a plaintiff’s allegations that her employer humiliated her at important meetings,
screamed at her in one instance, told her to “shut up and sit down” in one instance, and was
“constantly hostile and hypercritical” did not amount to a hostile work environment, even though
these actions may have been disrespectful and unfair. Singh, 300 F. Supp. 2d at. 54-57; accord
Bryant v. Brownlee, 265 F. Supp. 2d 52, 64 (D.D.C. 2003) (finding no hostile work environment
where a coworker referred to the plaintiff as “nigger” and shouted at her and where another
coworker stated that white men were first and black women were “at the bottom”; the plaintiff’s
other allegations of harassment lacked race or age-based overtones and instead revealed job-
related tensions and personality conflicts).
Mr. Hunter’s harassment claim must be dismissed because he does not allege
conduct sufficiently severe or pervasive as to constitute a hostile work environment. Mr. Hunter
alleges “gender discrimination in the application of the agency’s Alternative Work Schedule
Program, unprofessional, negative and malicious behavior and comments from management,
discriminatory practices and the lack of adherence to Contracting rules and regulations.” Am.
-8- Compl. ¶ 13. He also asserts that at the August 7 meeting, Mr. Charles, Ms. Bryant, and Ms.
Higgins unjustly disparaged his work and accused him of being hostile and threatening to
coworkers. Id. ¶ 16. Finally, he complains that (1) he was denied an Alternative Work Schedule
when one was granted to others and (2) he was required to take a fitness for duty exam at his own
expense. Id. ¶¶ 13, 15, 21. Even presuming these allegations are true, to survive a motion to
dismiss the Amended Complaint must state a claim that is “plausible on its face,” Twombly, 550
U.S. at 570, that is, it must state a claim that is more than a “sheer possibility that a defendant has
acted unlawfully.” Iqbal, 129 S.Ct. at 1949. The allegations of the Amended Complaint are
insufficiently severe and insufficiently pervasive to state a claim for an hostile work
environment. Count III of the Amended Complaint will be dismissed for failure to state a claim.
D. Discrimination
To establish a prima facie case of discrimination, a plaintiff must show 1) that he
is a member of a protected class; 2) that he suffered an adverse personnel action; 3) under
circumstances giving rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452
(D.C. Cir. 1999). “[N]ot everything that makes an employee unhappy” is an adverse action under
Title VII. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); accord Russell v. Principi,
257 F.3d 815, 818 (D.C. Cir. 2001). “Actions short of an outright firing can be adverse within
the meaning of Title VII, but not all lesser actions by employers count.” Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002). Some types of adverse actions are obvious, such as discharge
or failure to promote. For those that are less clear, a plaintiff must show an action with
“materially adverse consequences affecting the terms, conditions, or privileges of her
employment or her future employment opportunities.” Brown, 199 F.3d at 457. The
-9- employment decision must inflict “objectively tangible harm.” Russell, 257 F.3d at 818. “An
employment decision does not rise to the level of an actionable adverse action . . . unless there is
a tangible change in the duties or working conditions constituting a material employment
disadvantage.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (citation omitted).
The District alleges that Mr. Hunter has not stated a claim for discrimination
because he has not alleged any adverse personnel action. The District points to cases finding, on
summary judgment, that paid leave with the requirement to take a fitness for duty exam, standing
alone, does not constitute a materially adverse action. See, e.g., Nichols v. Southern Illinois
Univ., 510 F.3d 772, 786-87 (7th Cir. 2007); Schoffstall v. Henderson, 223 F.3d 818, 825 (8th
Cir. 2000); Talavera v. Fore, 648 F. Supp. 2d 118, 128-29 (D.D.C. 2009); Franklin v. Potter,
600 F. Supp. 2d 38, 67-68 (D.D.C. 2009).
Unlike those cases, however, the District has filed a motion to dismiss before any
discovery. The issue of whether a particular employment action is materially adverse is fact
intensive and “depends of the circumstances of the particular case.” Burlington N. & Santa Fe
Ry. v. White, 548 U.S. 53, 71 (2006). For example, in Franklin v. Potter, the district court
granted summary judgment to the defendant employer based on the circumstances of that case —
finding that summary judgment was warranted because the plaintiff had not produced any
evidence that the fitness for duty exams he was required to undergo were particularly grueling or
humiliating or produced any injury or harm. 600 F. Supp. 2d at 67. Discovery may or may not
show that the fitness exam caused Mr. Hunter any particular injury or harm. Also, Mr. Hunter
has not alleged only that he was required to take a fitness for duty exam; he also alleges that the
exam was required at his own expense. Am. Compl. ¶ 21.
-10- Mr. Hunter also alleges that his superiors denied his request for an Alternative
Work Schedule while approving requests by other employees, see Am. Compl. ¶ 15, and he
wrote a letter to Mr. Charles complaining about gender discrimination in the application of the
agency’s Alternative Work Schedule Program. Id. ¶ 13. Construing the Amended Complaint
liberally in favor of Mr. Hunter who is acting pro se, see Haines, 404 U.S. at 520, the Amended
Complaint can be read to allege that the denial of the Alternative Work Schedule was based on
Mr. Hunter’s gender. The District contends that a denial of a request for a schedule change
cannot constitute discrimination, relying on Jackson v. Acedo, Civ. No. 08-1941, 2009 WL
2619446, *5 (D.D.C. 2009). Jackson is distinguishable, however, since in that case the district
court dismissed the discrimination claim because the plaintiff did not allege that the denial of her
request for a schedule change was based on her race or gender. Also, as explained above,
whether an alleged adverse action produces any actual “objectively tangible harm,” Russell, 257
F.3d at 818, depends on the circumstances of the case. See Burlington, 548 U.S. at 71. The
circumstances of this case are not known at this time because no discovery has taken place. In
this pro se case, the allegations that Mr. Hunter was required to undergo a fitness for duty exam
at his own expense and that he was denied an alternative work schedule are sufficient to
withstand the District’s motion to dismiss. The District’s motion to dismiss Count I
(discrimination) will be denied.
E. Retaliation
Title VII prohibits an employer from retaliating against an employee because he
“has opposed any practice made an unlawful employment practice by this title, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
-11- or hearing under this title.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of
retaliation, a plaintiff must show that: 1) he engaged in protected activity; 2) he suffered from a
materially adverse act; and 3) a causal connection exists between the protected activity and the
employer’s act. See Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C. Cir. 2006). A plaintiff must
show that the employer’s actions “would have been materially adverse to a reasonable
employee.” Burlington, 548 U.S. at 57. “[A]n employer’s actions must be harmful to the point
that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. The employer’s action must have been “materially” adverse because the
statute protects employees from significant harms and does not protect an employee from “those
petty slights or minor annoyances that often take place at work and that all employees
experience.” Id. at 68. Further, an objective “reasonable person” standard applies. Id.
Employees are not protected from “all retaliation, but from retaliation that produces an injury or
harm.” Id. at 67.
The District contends that the retaliation claim should be dismissed for the same
reasons that the discrimination should be dismissed — because a requirement to take a fitness for
duty exam and the denial of a request for a change in schedule do not constitute adverse
employment actions. The motion to dismiss Count II (retaliation) will be denied for the same
reasons that the motion to dismiss the Count I (discrimination) was denied.
F. Attorney Fees
The District also moves to dismiss the request for attorney’s fees set forth in the
Amended Complaint’s prayer for relief because a pro se plaintiff may not recover attorney’s fees
for representing himself. See Kay v. Ehler, 499 U.S. 432, 435-38 (pro se plaintiff could not
-12- recover attorney fees under 42 U.S.C. § 1988 for representing himself even when the plaintiff
was in fact an attorney). In a Title VII action such as this one, a court, in its discretion, may
award reasonable attorney’s fees to the prevailing party. See 42 U.S.C. § 2000e-5(k). It has yet
to be determined whether Mr. Hunter will be the prevailing party in this action, and Mr. Hunter
could, at any time, retain an attorney to represent him, in which case he could recovery attorney’s
fees. The District’s motion to dismiss the request for attorney fees will be denied as premature.
IV. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss [Dkt. # 9] will be
granted in part and denied in part. Count III of the Amended Complaint, the hostile environment
claim, will be dismissed. The motion to dismiss is denied in all other respects. The following
Counts remain: Count I (discrimination); Count II (retaliation) and Count IV (violation of the
D.C. Whistleblower Protection Act). The Court expresses no opinion regarding whether Counts
I, II, or IV will survive summary judgment or will succeed at trial. A memorializing Order
accompanies this Memorandum Opinion.
Date: May 11, 2010 /s/ ROSEMARY M. COLLYER United States District Judge
-13-