UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) Farisse Moore, ) ) Plaintiff, ) ) v. ) Civil No. 18-cv-00657-APM ) District of Columbia Water and Sewer ) Authority, et al., ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I.
Plaintiff Farisse Moore filed this lawsuit against her employer, the District of Columbia
Water and Sewer Authority (“D.C. Water”) and her direct supervisor, Jonathan Reeves. Moore
alleges that she has been subjected to discriminatory, harassing, and retaliatory actions on the basis
of her race and gender, leading to her disparate treatment and creation of a hostile work
environment in violation of the District of Columbia Human Rights Act (“DCHRA”) and
42 U.S.C. § 1981.
Before the court is Defendants’ Motion to Dismiss. See generally Defs.’ Mot. to Dismiss.
Compl., ECF No. 6; Mem. in Support of Defs.’ Mot. [hereinafter Defs.’ Mem.], ECF No. 6-1. For
the reasons that follow, the court denies Defendants’ Motion. II.
Many of the Defendants’ arguments border on frivolous, therefore the court need not spend
much time addressing them.1
Defendants’ argument that the court ought to ignore any alleged conduct that predates
February 23, 2017, both misreads the Complaint and misunderstands the Supreme Court’s decision
in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). First, Plaintiff has asserted a
claim under 42 U.S.C.§ 1981. Such claims have either a three- or four-year limitations period.
See Morris v. Carter Glob. Lee, Inc., 997 F.Supp.2d 27, 38 (D.D.C. 2013). Under either limitation
period, Plaintiff’s section 1981 claim forecloses the court from walling off events alleged to have
occurred before February 23, 2017.
Second, under Morgan, the alleged conduct pre-dating February 23, 2017, is relevant to
Plaintiff’s hostile work environment claims. Under Morgan, “[if] an act contributing to the [hostile
work environment] claim occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of determining liability.” Morgan,
536 U.S. at 117; accord Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890–93 (D.C. 2003)
(applying Morgan to claims under the DCHRA). Here, Plaintiff alleges that Defendants subjected
her to a hostile work environment because of her race and gender and in retaliation for the protected
action of reporting Defendant Reeves’s discriminatory treatment. See Not. of Removal, ECF No.
1, Ex. ECF No. 1-1 [hereinafter Compl.], ¶¶ 26–41. One of the final discriminatory acts Reeves
is alleged to have taken against Plaintiff is removing her major job duties in December 2017, well
within the one-year limitations period. See Compl. ¶ 23. Accordingly, under Morgan, the court
1 The court, writing primarily for the parties, does not summarize the Complaint’s factual allegations, but refers to the allegations as necessary to resolve the issues presented. .
2 cannot ignore the acts pre-dating February 23, 2017, even if they would be untimely as discrete
acts of discrimination. See Lively, 830 A.2d at 890 (“It does not matter, for purposes of the
[DCHRA], that some of the component acts of the hostile work environment fall outside the
statutory time period.”) (citation and internal quotation marks omitted).
III.
The court now turns to Defendants’ various arguments as to why Plaintiff has failed to state
a claim.
A.
To begin, Defendants’ insistence that Plaintiff has failed to allege an adverse action to
support her disparate treatment claims is wrong. Plaintiff alleges that Defendant Reeves hired a
Caucasian male, who was unqualified and known to come to work drunk, and then, on December
22, 2017, “assigned all of Ms. Moore’s major duties” to him. Compl. ¶ 23. Stripping Plaintiff of
her “major duties” is a legally cognizable adverse action. See Czekalski v. Peters, 475 F.3d 360,
364 (D.C. Cir. 2007); cf. Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008) (holding
that the plaintiff had not suffered an adverse action when his “duties in the wake of [another’s]
hiring did not constitute a qualitatively inferior work requiring any less skill or knowledge”).
Plaintiff has sufficiently pleaded facts that, if true, would satisfy the adversity requirement.
See Compl. ¶ 23.
Defendants’ contention that “the Complaint is devoid of any allegations” of discriminatory
animus is mystifying. Plaintiff alleges that Defendant Reeves made a laundry list of derogatory
and inflammatory comments directed to or around her throughout her employment, including
intermittent use of the n***** word, Compl. ¶¶ 11, 18; use of the term “crackish” in reference to
an all African-American employee team, id. ¶ 10; discussion of an African American employee’s
3 “hairy black ass” being on top of Plaintiff in a sexual manner, id. ¶ 14; and showing Plaintiff a
photograph of a woman’s bare breast, id. ¶ 12. These allegations easily give rise to a plausible
inference of discriminatory animus.
B.
Next, Defendants contend that the conduct alleged by Plaintiff is not “sufficiently severe
or pervasive” to create a hostile work environment. Defs.’ Mem. at 11. Further, Defendants again
argue that Plaintiff has failed to allege a causal link between her race and gender and her hostile
work environment. Id. at 11–12.
These arguments hardly merit a response. The alleged litany of offensive language and
actions is beyond adequate to survive a motion to dismiss. Additionally, as already discussed,
Plaintiff has pleaded a causal link between her race and gender and the hostile work environment
marred with alleged racist and sexual conduct. Plaintiff may proceed to discovery on her hostile
work environment claims.
C.
Defendants also challenge the sufficiency of Plaintiffs’ disparate treatment retaliation
claim. They argue that Plaintiff fails to state a “prima facie case of retaliation” because she fails
to allege an adverse action and a causal link between her protected activity and any adverse action.
Defs.’ Mem. at 12–15.
An action is materially adverse for purposes of a retaliation claim if it “could well dissuade
a reasonable worker from making or supporting a charge of discrimination.” Taylor v. Solis, 571
F.3d 1313, 1320 (D.C. Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 57 (2006)). Being relieved of all major job duties easily satisfies that adversity standard.
4 Also, Plaintiff has sufficiently pleaded a causal link between her protected activity and
Defendants’ adverse action. It is well-established that “temporal proximity is one way of proving
causation.” Craig v. D.C., 881 F. Supp.2d 26, 35 (D.D.C. 2012); see also Casole v. Johanns, 577
F. Supp. 2d 138, 141 (D.D.C. 2008). Plaintiff alleges that she reached out to the Interim General
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) Farisse Moore, ) ) Plaintiff, ) ) v. ) Civil No. 18-cv-00657-APM ) District of Columbia Water and Sewer ) Authority, et al., ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I.
Plaintiff Farisse Moore filed this lawsuit against her employer, the District of Columbia
Water and Sewer Authority (“D.C. Water”) and her direct supervisor, Jonathan Reeves. Moore
alleges that she has been subjected to discriminatory, harassing, and retaliatory actions on the basis
of her race and gender, leading to her disparate treatment and creation of a hostile work
environment in violation of the District of Columbia Human Rights Act (“DCHRA”) and
42 U.S.C. § 1981.
Before the court is Defendants’ Motion to Dismiss. See generally Defs.’ Mot. to Dismiss.
Compl., ECF No. 6; Mem. in Support of Defs.’ Mot. [hereinafter Defs.’ Mem.], ECF No. 6-1. For
the reasons that follow, the court denies Defendants’ Motion. II.
Many of the Defendants’ arguments border on frivolous, therefore the court need not spend
much time addressing them.1
Defendants’ argument that the court ought to ignore any alleged conduct that predates
February 23, 2017, both misreads the Complaint and misunderstands the Supreme Court’s decision
in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). First, Plaintiff has asserted a
claim under 42 U.S.C.§ 1981. Such claims have either a three- or four-year limitations period.
See Morris v. Carter Glob. Lee, Inc., 997 F.Supp.2d 27, 38 (D.D.C. 2013). Under either limitation
period, Plaintiff’s section 1981 claim forecloses the court from walling off events alleged to have
occurred before February 23, 2017.
Second, under Morgan, the alleged conduct pre-dating February 23, 2017, is relevant to
Plaintiff’s hostile work environment claims. Under Morgan, “[if] an act contributing to the [hostile
work environment] claim occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of determining liability.” Morgan,
536 U.S. at 117; accord Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890–93 (D.C. 2003)
(applying Morgan to claims under the DCHRA). Here, Plaintiff alleges that Defendants subjected
her to a hostile work environment because of her race and gender and in retaliation for the protected
action of reporting Defendant Reeves’s discriminatory treatment. See Not. of Removal, ECF No.
1, Ex. ECF No. 1-1 [hereinafter Compl.], ¶¶ 26–41. One of the final discriminatory acts Reeves
is alleged to have taken against Plaintiff is removing her major job duties in December 2017, well
within the one-year limitations period. See Compl. ¶ 23. Accordingly, under Morgan, the court
1 The court, writing primarily for the parties, does not summarize the Complaint’s factual allegations, but refers to the allegations as necessary to resolve the issues presented. .
2 cannot ignore the acts pre-dating February 23, 2017, even if they would be untimely as discrete
acts of discrimination. See Lively, 830 A.2d at 890 (“It does not matter, for purposes of the
[DCHRA], that some of the component acts of the hostile work environment fall outside the
statutory time period.”) (citation and internal quotation marks omitted).
III.
The court now turns to Defendants’ various arguments as to why Plaintiff has failed to state
a claim.
A.
To begin, Defendants’ insistence that Plaintiff has failed to allege an adverse action to
support her disparate treatment claims is wrong. Plaintiff alleges that Defendant Reeves hired a
Caucasian male, who was unqualified and known to come to work drunk, and then, on December
22, 2017, “assigned all of Ms. Moore’s major duties” to him. Compl. ¶ 23. Stripping Plaintiff of
her “major duties” is a legally cognizable adverse action. See Czekalski v. Peters, 475 F.3d 360,
364 (D.C. Cir. 2007); cf. Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008) (holding
that the plaintiff had not suffered an adverse action when his “duties in the wake of [another’s]
hiring did not constitute a qualitatively inferior work requiring any less skill or knowledge”).
Plaintiff has sufficiently pleaded facts that, if true, would satisfy the adversity requirement.
See Compl. ¶ 23.
Defendants’ contention that “the Complaint is devoid of any allegations” of discriminatory
animus is mystifying. Plaintiff alleges that Defendant Reeves made a laundry list of derogatory
and inflammatory comments directed to or around her throughout her employment, including
intermittent use of the n***** word, Compl. ¶¶ 11, 18; use of the term “crackish” in reference to
an all African-American employee team, id. ¶ 10; discussion of an African American employee’s
3 “hairy black ass” being on top of Plaintiff in a sexual manner, id. ¶ 14; and showing Plaintiff a
photograph of a woman’s bare breast, id. ¶ 12. These allegations easily give rise to a plausible
inference of discriminatory animus.
B.
Next, Defendants contend that the conduct alleged by Plaintiff is not “sufficiently severe
or pervasive” to create a hostile work environment. Defs.’ Mem. at 11. Further, Defendants again
argue that Plaintiff has failed to allege a causal link between her race and gender and her hostile
work environment. Id. at 11–12.
These arguments hardly merit a response. The alleged litany of offensive language and
actions is beyond adequate to survive a motion to dismiss. Additionally, as already discussed,
Plaintiff has pleaded a causal link between her race and gender and the hostile work environment
marred with alleged racist and sexual conduct. Plaintiff may proceed to discovery on her hostile
work environment claims.
C.
Defendants also challenge the sufficiency of Plaintiffs’ disparate treatment retaliation
claim. They argue that Plaintiff fails to state a “prima facie case of retaliation” because she fails
to allege an adverse action and a causal link between her protected activity and any adverse action.
Defs.’ Mem. at 12–15.
An action is materially adverse for purposes of a retaliation claim if it “could well dissuade
a reasonable worker from making or supporting a charge of discrimination.” Taylor v. Solis, 571
F.3d 1313, 1320 (D.C. Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 57 (2006)). Being relieved of all major job duties easily satisfies that adversity standard.
4 Also, Plaintiff has sufficiently pleaded a causal link between her protected activity and
Defendants’ adverse action. It is well-established that “temporal proximity is one way of proving
causation.” Craig v. D.C., 881 F. Supp.2d 26, 35 (D.D.C. 2012); see also Casole v. Johanns, 577
F. Supp. 2d 138, 141 (D.D.C. 2008). Plaintiff alleges that she reached out to the Interim General
Manager regarding Defendant Reeves’s behavior on December 6, 2017, and then just two weeks
later, on December 22, 2017, Reeves reassigned Plaintiff’s job duties. Id. ¶¶ 23–24. The mere
16 days between Plaintiff’s protected activity (renewing her complaint by this time raising it with
the Interim General Manager) and the Defendants’ adverse action easily creates a plausible
inference of causation at this stage.
Finally, Defendants make no specific argument as to Plaintiff’s retaliatory hostile work
environment claim, so the court need not address it.
D.
Defendants’ final arguments challenge Plaintiff’s section 1981 claim.2 Defendants
maintain that (1) Plaintiff has not sufficiently alleged a contractual relationship between herself
and D.C. Water; (2) D.C. Water is a state actor, meaning that Plaintiff could “not sue it directly
under Section 1981”; and, (3) Plaintiff has not sufficiently alleged that Defendants’ conduct was
causally tied to her race. Defs.’ Mem. at 16–17. Each of these arguments lacks merit.
Courts in this District consistently have held that a formal or term-specific employment
contract is not required to assert a claim under section 1981. See e.g. Uzoukwu v. Metro.
Washington Council of Governments, 983 F.Supp.2d 67, 89 (D.D.C. 2013) (holding that plaintiff’s
2 Section 1981 protects the right of “[a]ll persons within the jurisdiction of the United States” to “make and enforce contracts . . .” without respect to race. 42 U.S.C. §1981(a) (2014). The current version of the statute defines “make and enforce contracts” to “include[] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. §1981(b) (2014).
5 at-will status “does not foreclose her Section 1981 claims”); see also Sheppard v. Dickstein,
Shapiro, Morin & Oshinsky, 59 F.Supp.2d 27, 32 (D.D.C. 1999). “District of Columbia law does
treat at-will employment agreements as contracts,” and thus an at-will employee can maintain a
cause of action under the “make and enforce” clause of section 1981. Id.
Further, D.C. Water is not a state actor. D.C. Water is “a distinctly independent agency
established to engage in proprietary activities” and thus has a separate legal existence from the
District of Columbia government. D.C. Water & Sewer Auth. v. Delon Hampton & Assocs., 851
A.2d 410, 416 (D.C. 2004); see also Dingwall v. D.C. Water & Sewer Auth., 800 A.2d 686, 687-
88 (D.C. 2002) (rejecting the argument that D.C. Water was entitled to the pre-suit notice required
to be given to “the District [of Columbia] government” by statute). D.C. Water therefore enjoys
no sovereign immunity from suit under section 1981.
Finally, the court already has rejected Defendants’ argument that Plaintiff has not properly
alleged that her race was the cause of Defendants’ conduct and does so once more.
IV.
For the reasons stated above, Defendants’ Motion to Dismiss is denied in its entirety.
Defendants shall answer the Complaint no later than 14 days following the entry of this order.
Dated: November 14, 2018 Amit P. Mehta United States District Judge