Obia v. J.P. Morgan Chase & Co.

• Court: District Court, District of Columbia
• Decided: September 9, 2020
• Docket: Civil Action No. 2019-2340
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) MOTANGA E. OBIA, ) ) Plaintiff, ) v. ) Civil Action No. 19-2340 (BAH) ) J.P. MORGAN CHASE & CO., et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION Plaintiff, Motanga E. Obia, proceeding pro se, initiated this lawsuit in August 2019 with

the filing of his 42-page complaint against defendants J.P. Morgan Chase & Co. (“JPMC”), the

Carlyle Group, and three individuals, David Rubenstein, Jamie Diamond and Peter L. Scher,

purportedly arising from plaintiff’s prior employment at JPMC. Compl. ¶¶ 7, 14, 73, ECF No. 1.

Pending before the Court are defendants’ motions to dismiss the complaint and plaintiff’s motion

to submit an amended complaint. See Defs. David Rubenstein and the Carlyle Group’s Motion

to Dismiss Plaintiff’s Complaint (“Carlyle Defs.’ Mot.”), ECF No. 13; Defs. JPMC, Jamie

Diamond and Peter L. Scher’s Motion to Dismiss Plaintiff’s Complaint (“JPMC Defs.’ Mot.”),

ECF No. 15; and Pl.’s Mot. for Leave of Court to Amend Complaint (“Pl.’s Mot.”), ECF No. 24.

For the reasons discussed below, defendants’ motions to dismiss are GRANTED and plaintiff’s

motion for leave to amend his complaint is DENIED.1

1 Given this disposition, plaintiff’s other pending motions, including Pl.’s Motion to the Court: Request for Counsel, ECF No. 21; Pl.’s Motion to Leave for E-Filing Permission, ECF No. 22; and Pl.’s Motion to Stay All Deadlines, ECF No. 23, are denied as moot.

1 I. BACKGROUND

While plaintiff’s complaint, consisting of over 100 paragraphs of factual allegations

interrupted with multiple diagrams, is difficult to follow, the following allegations may be

distilled: JPMC employed plaintiff, an African American male, as a Relationship Sales Officer –

Associate from March 28, 2016 until his termination on July 14, 2017. See Compl. ¶¶ 7, 14, 73.

According to plaintiff, on July 28, 2016, he reported “an accounting discrepancy,” id. ¶ 18,

during a “heated meeting” with supervisors, id. ¶ 20, who subsequently were “abusive” and

“threatening” towards him, id. ¶ 19; see id. ¶ 24, and who, along with other JPMC officers,

“engaged [in] a shredding exercise” to hide the discrepancy, id. ¶ 21.

In September 2016, plaintiff allegedly encountered, at a downtown Cosi restaurant, David

Rubenstein (“Rubenstein”), see id. ¶ 22, a co-founder and former chief executive officer of a

global investment firm called The Carlyle Group (“Carlyle”), see Carlyle Defs.’ Mem. in

Support of Mot. to Dismiss Pl.’s Compl. (“Carlyle Defs.’ Mem.”) at 1, ECF No. 13-1. Plaintiff

alleged that, on September 12, 2016, and October 13, 2016, Rubenstein communicated with

“Senior Executives within [JPMC],” including Chief Executive Officer Jamie Dimon, to “expose

Plaintiff to leadership in a negative manner . . . to single-out the Plaintiff and encourage the

Plaintiff’s discharge[.]” Compl. ¶ 22. What followed was a “scheme” to ridicule, abuse,

aggravate, discriminate against, harass, sabotage, retaliate against, thwart career advancement of,

and create a hostile work environment for, and conspire against plaintiff. See generally id. ¶¶

23-34, 39-40, 46-49, 55-57.

Late in 2016, plaintiff’s “medical condition began to worsen,” prompting him to take

“a lot of time away” from work. Id. ¶ 28. He reportedly had “an episode (slurred speech) on

December 2, 2016. Id. ¶ 29 (emphasis removed). At some point, plaintiff requested an

2 unspecified accommodation for a condition he does not identify, see id. ¶ 32, and was granted

short-term disability leave, see id. ¶¶ 43-44.

The mistreatment plaintiff allegedly experienced extended beyond the workplace.

According to plaintiff, “the Respondent” subjected him to “surveillance through various means

of stalking . . . across state-lines and . . . monitoring . . . inside his home.” Id. ¶ 60. Defendants

allegedly “engage[d] in . . . repulsive conduct . . . by converting [his] apartment into a

‘laboratory’ and extracting information from the Plaintiff’s apartment, while making the Plaintiff

an experimental subject through the monitoring of [his] medical condition [and] sleeping

patterns[.]” Id. ¶ 90. In this way, defendants allegedly gathered plaintiff’s “Bio-metrics, Bio-

Rhythms and Human Behavioral data.” Id. ¶ 91. Defendants also were responsible for hacking

his cell phone, manipulating his Uber account, and installing “phishing software” on his

computer hard drive, see id. ¶¶ 85-87, 90-91, and thus were able to monitor his text messages

and interfere with his personal relationships, see id. ¶ 85. In addition, defendants allegedly

accused plaintiff of committing a crime, see id. ¶¶ 91, 97, caused records to reflect falsely that

plaintiff had been incarcerated, see id. ¶ 92, disclosed medical information about plaintiff, see id.

¶¶ 92-93, conspired with his landlord to conduct video surveillance of plaintiff in his home, see

id. ¶ 92, disseminated nude images of plaintiff, see id. ¶ 94, and published plaintiff’s academic

records, see id. ¶ 100. Plaintiff allegedly has been stalked and subjected to death threats

continuously since 2017. See id. ¶ 104.

Plaintiff asserts sixteen separate claims (mis-numbered in complaint as fifteen), under

Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.,

the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401 et seq., the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Equal Pay Act

3 (“EPA”), 29 U.S.C. § 206(d), and the District of Columbia Consumer Protection Practices Act

(“CPPA”), D.C. Code § 28–3901 et seq. He also brings two tort claims, defamation and

intentional infliction of emotional distress, under District of Columbia law. Plaintiff demands a

declaratory judgment, injunctive relief, and monetary damages.

II. LEGAL STANDARD

A plaintiff need only provide a “short and plain statement of [his] claim showing that [he

is] entitled to relief,” Fed. R. Civ. P. 8(a)(2), that “give[s] the defendant fair notice of what the . .

. claim is and the grounds upon which it rests,” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per

curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation

marks omitted). Ideally, “[e]ach allegation [of a complaint is] simple, concise, and direct.” Fed.

R. Civ. P. 8(d)(1). At the same time, to withstand a motion to dismiss under Rule 12(b)(6), 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); see also Wood v. Moss,

572 U.S. 744, 757–58 (2014). A facially plausible claim pleads facts that are not ‘“merely

consistent with’ a defendant’s liability” but that “allow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 556); see Banneker Ventures, LLC v. Graham, 798 F.3d 1119,

1129 (D.C. Cir. 2015) (“Plausibility requires more than a sheer possibility that a defendant has

acted unlawfully[.]”). In deciding a motion under Rule 12(b)(6), the whole complaint must be

considered, with all factual allegations accepted as true, “even if doubtful in fact.” Twombly,

550 U.S. at 555; see also Marshall’s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1265

(D.C. Cir. 2019). The court cannot, however, “assume the truth of legal conclusions, nor [does

it] ‘accept inferences that are unsupported by the facts set out in the complaint.’” Arpaio v.

4 Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (alteration in original) (internal citation omitted)

(quoting Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)); see Iqbal,

556 U.S. at 681 (stating that conclusory allegations are “not entitled to be assumed true”).

In applying these standards to pleadings filed by pro se litigants, the court must consider

the complaint “in light of all filings, including filings responsive to a motion to dismiss.”

Johnson v. District of Columbia, 927 F.3d 539, 541 (2019) (quoting Brown v. Whole Foods Mkt.

Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (per curiam) (internal quotation marks omitted)).

In addition, a pro se complaint must “‘be liberally construed’ and ‘held to less stringent

standards than formal pleadings drafted by lawyers.’” Bowman v. Iddon, 848 F.3d 1034, 1039

(2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation

marks and citation omitted)). Nonetheless, a pro se plaintiff is not excused from complying with

applicable procedural rules and “must plead ‘factual matter’ that permits the court to infer 'more

than the mere possibility of misconduct.’” Atherton v. D.C. Office of the Mayor, 567 F.3d 672,

681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. 678); see also Jones v. Horne, 634 F.3d 588,

595 (D.C. Cir. 2011).

III. DISCUSSION

The JPMC Defendants move to dismiss on the ground that the complaint fails to meet

Rule 8’s clarity and brevity standards. See JPMC Defs.’ Mem. of P. & A. in Support of Mot. to

Dismiss (“JPMC Defs.’ Mem.”), at 5-6, ECF No. 15. All Defendants argue that dismissal is

warranted under Rule 12(b)(6) because the complaint fails to state claims upon which relief can

be granted. See generally Carlyle Defs.’ Mem. at 4-11; JPMC Defs.’ Mem. at 7-14.

Plaintiff’s complaint is precisely the sort of pleading for which Twombly and Iqbal are

designed. Its rambling and disorganized assertions contain, at best, conclusory statements

5 without factual allegations as support. The complaint offers little more than labels and

conclusions, and contrary to Rule 8(a), fails even to make clear which counts are raised against

which defendants. These defects alone warrant dismissal of the complaint. See, e.g., Uzoukwu v.

Metro. Washington Council of Governments, 748 F. App’x 355, 356 (D.C. Cir. 2019) (per

curiam) (affirming dismissal of disability and sex discrimination claims where complaint failed

to allege sufficient factual support); Jenkins v. Nat’l R.R. Corp., No. 1:19-CV-2414, 2020 WL

3971938, at *3 (D.D.C. July 14, 2020) (dismissing complaint for failure to satisfy Rules 8(a) and

12(b)(6)). Examination of defendants’ substantive arguments confirms that dismissal of

plaintiff’s legal claims is warranted.

A. Counts of Plaintiff’s Original Complaint

1. Tortious Interference (Count 1)

Count I of the complaint alleges that “Rubenstein intentionally forced [and] induced

[JPMC] to break its contractual obligation to the Plaintiff” and, as a result, plaintiff sustained

economic and emotional injury. Compl. at 35.2 Under District of Columbia law, “[a] prima

facie case of tortious interference with business relations requires: (1) existence of a valid

contractual or other business relationship; (2) the defendant’s knowledge of the relationship; (3)

intentional interference with that relationship by the defendant; and (4) resulting damages.”

Whitt v. Am. Prop. Constr., P.C., 157 A.3d 196, 202 (D.C. 2017) (citations, brackets and internal

quotation marks omitted); see Newmyer v. Sidwell Friends Sch., 128 A.3d 1023, 1038-39 (D.C.

2015) (applying same factors to claim of tortious interference with business or contractual

relationships).

2 Plaintiff does not designate paragraph numbers for the complaint’s introductory paragraph (titled “Nature of Action”) and its 16 counts and thus these portions of the complaint are referenced by page number.

6 Defendants argue that Count I cannot proceed because insufficient facts are alleged to

support it. See generally Carlyle Defs.’ Mem. at 5-6. The Court concurs. The complaint alleges

no facts to support an inference that Rubenstein was aware of a contractual relationship between

plaintiff and JPMC. The few allegations presented on this subject, see, e.g., Compl. ¶¶ 33, 47,

103, are far too speculative to describe whether or how Rubenstein interfered with that

relationship or that he did so intentionally. Count 1 will therefore be dismissed. See Precision

Contracting Sols., LP v. ANGI Homeservices, Inc., 415 F. Supp. 3d 113, 122 (D.D.C. 2019)

(dismissing tortious interference claims against two defendants because complaint “is devoid of

[factual] allegations about” them).3

2. Discrimination Claims (Counts 5-9, 13 and 15)

Plaintiff alleges discrimination based on race and national origin, see Compl. at 1, genetic

information (Count 5), matriculation (Count 6), credit information (Count 7), religious beliefs

(Count 8), personal appearance (Count 9), and retaliation (Count 15), in violation of the

DCHRA. He also alleges that JPMC subjected him to a hostile work environment (Count 13) in

violation of Title VII. The JPMC Defendants move to dismiss these discrimination claims on

two grounds: that plaintiff failed to exhaust his administrative remedies before filing his lawsuit,

and that these claims are untimely. See generally JPMC Defs.’ Mem. at 8-9.

a. Exhaustion of Administrative Remedies

Generally, Title VII requires exhaustion of administrative remedies before a plaintiff may

file an employment discrimination action in court. See Payne v. Salazar, 619 F.3d 56, 65 (D.C.

Cir. 2010) ((citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)). If the

3 No other count of the complaint expressly mentions Rubenstein or Carlyle. Consideration of the complaint in its entirety confirms that plaintiff fails to state a viable claim against these defendants, warranting dismissal of the complaint against them. In any event, defendants state that “The Carlyle Group . . . is not a legal entity.” Corporate Disclosure Statement of the Carlyle Group at 1, ECF No. 10.

7 discriminatory acts alleged in a complaint are “not articulated in the administrative charge, are

not reasonably related to the allegations in the charge, and do not fall within the scope of any

administrative investigation that can reasonably be expected to follow, [plaintiff] may not

proceed with these additional claims without first exhausting the administrative process.”

Shipman v. Nat’l R.R. Passenger Corp. (AMTRAK), 241 F. Supp. 3d 114, 123 (D.D.C. 2017)

(citation omitted), aff’d sub nom. Shipman v. Nat’l R.R. Passenger Corp., No. 17-5066, 2017

WL 4217244 (D.C. Cir. Aug. 1, 2017). In other words, the lawsuit’s scope “is limited . . . to

claims that are ‘like or reasonably related to the allegations of the charge and growing out of

such allegations.’” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citing Cheek v.

Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)); see Payne, 619 F.3d at 65

(reinforcing Park holding insofar as claims in civil suit must arise from the administrative

investigation that can reasonably be expected to follow the charge of discrimination). This

process “serves the important purpose[ ] of giving the charged party notice of the claim and

narrow[ing] the issues for prompt adjudication and decision.” Latson v. Holder, 82 F. Supp. 3d

377, 384 (D.D.C. 2015) (quoting Park, 71 F.3d at 907) (internal quotation marks omitted).

Plaintiff’s administrative Charge of Discrimination, see JPMC Defs.’ Mem., Ex. 1 at 3,

ECF No. 15-1, pertains only to an unidentified disability.4 Plaintiff checked only the box marked

“DISABILITY,” and the narrative portion of the Charge of Discrimination alleges defendants’

failure to accommodate his disability, retaliation for having requested an accommodation for his

disability, and termination due to his disability. See id., Ex. 1 at 3. Nowhere does plaintiff

mention race, national origin, genetic information, matriculation, credit information, religious

4 Plaintiff submitted a second administrative Charge of Discrimination for alleged violations of the District of Columbia Family and Medical Leave Act (“DCFMLA”). See JPMC Mem., Ex. 1 at 2, ECF No. 15-1. While the complaint mentions the DCFMLA, see, e.g., Compl. ¶¶ 8, 65, no count of the complaint asserts a DCFMLA claim.

8 beliefs, personal appearance, or hostile work environment, or retaliation on any basis other than

disability.

“A plaintiff fails to exhaust [his] administrative remedies when the complaint [he] files in

federal court includes a claim that was not raised in the administrative complaint.” Mogenhan v.

Shinseki, 630 F. Supp. 2d 56, 60 (D.D.C. 2009); see Oviedo v. Washington Metro. Area Transit

Auth., 948 F.3d 386, 393 (D.C. Cir. 2020) (affirming dismissal of denied promotion and

demotion claims that were not included in Charge of Discrimination); see also Park, 71 F.3d at

907. By raising only disability-related claims at the administrative level, plaintiff may not now

pursue claims of discrimination on any other basis. See Haynes v. District of Columbia Water &

Sewer Auth., 924 F.3d 519, 526 (D.C. Cir. 2019); see also Pickett v. Brennan, No. 19-5170, 2020

WL 873526, at *1 (D.C. Cir. Feb. 13, 2020) (per curiam) (affirming dismissal of Title VII claim

because “[a]ppellant has not shown that he exhausted his administrative remedies as to . . . his

claims”); Amiri v. Securitas Sec. Servs. USA, Inc., 608 F. App’x 15 (D.C. Cir. 2015) (concluding

that “district court properly determined that appellant failed to exhaust his administrative

remedies with respect to his discrimination claim under Title VII . . . because appellant did not

present the claim in his administrative charge”); Massey v. Gray, 85 F. Supp. 3d 104, 109

(D.D.C. 2015) (concluding that allegations of discrimination based on gender, race, disability

and retaliation raised for the first time in an amended complaint “are neither like nor reasonably

related to her age discrimination claim” in the administrative charge of discrimination “and

therefore are not properly before the Court”), aff’d sub nom. Massey v. District of Columbia, No.

15-7041, 2015 WL 9310126 (D.C. Cir. Dec. 9, 2015) (per curiam).

b. Timeliness

When plaintiff initiated his administrative proceedings at the District of Columbia Office

9 of Human Rights, see Compl. ¶ 4, an administrative charge of discrimination must be filed

within 300 days of the alleged discriminatory action, see 42 U.S.C. § 2000e-5(e) (providing that

“charge shall be filed by . . . the person aggrieved within three hundred days after the alleged

unlawful employment practice occurred”). Although a discrimination claim under

the DCHRA may proceed in court without exhausting administrative remedies, see Ivey v.

District of Columbia, 949 A.2d 607, 616 (D.C. 2008), a plaintiff must file suit “within one year

of the unlawful discriminatory act, or the discovery thereof[,]” D.C. Code § 2–1403.16.

According to plaintiff’s administrative Charge of Discrimination, the alleged

discriminatory acts occurred between January 19, 2017 and July 14, 2017. See JPMC Defs.’

Mem., Ex. 1 at 3. Assuming plaintiff’s employment discrimination claims arose no later than

July 14, 2017, the date of his termination, plaintiff should have filed this Charge of

Discrimination within 300 days and his DCHRA claims within one year. Plaintiff apparently

filed his Charge of Discrimination timely with respect to the Title VII claims on October 18,

2017. See id. Timeliness cannot salvage discrimination claims based on race or national origin,

or hostile work environment claim, however, because plaintiff had not raised these claims at the

administrative level. In addition, since the filing of the instant lawsuit on August 2, 2019,

occurred more than one year after the occurrence of the alleged discrimination, plaintiff’s

DCHRA claims based on genetic information, matriculation, credit information, religious beliefs,

and personal appearance, and a retaliation claim unrelated to disability, are time-barred. See

Sims v. Sunovion Pharm., Inc., No. 1:17-CV-2519, 2019 WL 690343, at *7 (D.D.C. Feb. 19,

2019) (dismissing “any claim of discrimination under the Title VII, the ADEA, or the ADA

which occurred” more than 300 days prior to filing Charge of Discrimination); Protopapas v.

EMCOR Gov’t Servs., Inc., 251 F. Supp. 3d 249, 255 (D.D.C. 2017) (dismissing DCHRA claim

10 as “barred by the one-year statute of limitations”). Counts 5 through 9, 13 and 15 of the

complaint are therefore dismissed.

3. Tort Claims (Counts 10 and 14)

Plaintiff brings two common law tort claims: intentional infliction of emotional distress

(“IIED”) in Count 10 and defamation in Count 14. Defendants move to dismiss these claims as

time-barred. See JPMC Defs.’ Mem. at 9-10.

A defamation claim must be brought within one year from the date the claim accrues.

See D.C. Code § 12-301(4). “Defamation occurs on publication, and the statute of limitations

runs from the date of publication.” Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d

873, 882 (D.C. 1998) (citations omitted). Ordinarily a plaintiff must raise an IIED claim within

three years of its accrual. Saunders v. Nemanti, 580 A.2d 660, 665 (D.C. 1990) (holding that “an

independent action for [IIED], not intertwined with any of the causes of action for which a

period of limitation is specifically provided in the other provisions of [D.C. Code §] 12-301, is

governed by the general three-year limitation of [D.C. Code §] 12-301(8)”). If, however, the

events giving rise to the IIED claim are intertwined with a cause of action for which a statute of

limitations is specified, the IIED claim is subject to the statute of limitations for the intertwined

claim. See id.; Rendall-Speranza v. Nassim, 107 F.3d 913, 920 (D.C. Cir. 1997) (where IIED

claim “involved an assault and battery . . . the one-year period of limitation for assault and

battery applies”). Based on references in Count 10 to “the exposure of privileged

communication with the intent to subject the [p]laintiff to humiliation, radical[] shame, in-decent

exposure of private information and nudity,” Compl. at 38, the IIED claim is intertwined with the

defamation claim and, therefore, is subject to a one-year limitations period.

According to plaintiff, defendants intentionally harmed his reputation and professional

11 stature by “publishing communication pertaining [to him] through Mass Media outlets,” Compl.

at 40, and the last such event allegedly occurred on February 7, 2018, see id. ¶ 101. Plaintiff

filed this lawsuit on August 2, 2019, more than one year later. Therefore, both the defamation

and IIED claims are time-barred. See Bond v. U.S. Dep’t of Justice, 828 F. Supp. 2d 60, 78

(D.D.C. 2011) (applying one-year limitations period to IIED claim intertwined with defamation

claim and dismissing both claims as time-barred). Counts 10 and 14 of the complaint must be

dismissed.

4. Disability Discrimination Claims (Counts 3, 4, and 11)

The ADA makes “unlawful for an employer to discriminate against a qualified individual

with a disability because of the disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008) (quoting 42 U.S.C. § 12112(a)) (internal

quotation marks omitted). Employment discrimination based on disability is prohibited under

District of Columbia law also. See D.C. Code § 2-1402.11(a)(1).

Plaintiff’s disability claims fail for being wholly insufficient in alleging facts that would

identify the disability or establish that his condition qualifies as a disability under the ADA. See,

e.g., Thompson v. District of Columbia, 272 F. Supp. 3d 17, 22 (D.D.C. 2017) (dismissing ADA

claim where “[p]laintiff never identifies this disability, nor does she allege whether—or how—

this disability . . . impacts her ability to perform certain jobs”); Mitchell v. Yates, 402 F. Supp. 2d

222, 228 (D.D.C. 2005) (noting that “complaint must adequately allege facts sufficient to support

the claim that [plaintiff] has a ‘disability’ within the meaning of the ADA, or else be subject to

dismissal”). Instead, the complaint merely mentions a “medical condition,” see Compl. ¶¶ 28,

12 31, accuses defendants of “aggravat[ing] the [p]laintiff’s stress levels and disability,” id. ¶ 25,

alleges that plaintiff sought some unspecified accommodation, see id. ¶¶ 28, 32, and states that

plaintiff was absent from work “a lot” due to illness, see id. ¶¶ 28, 32. None of these allegations

shows that plaintiff suffers a “disability,” which for ADA purposes is defined as:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment[.]

42 U.S.C. § 12102(1). His references to “an episode (slurred speech)” on December 2, 2016,

Compl. ¶ 29 (emphasis removed), and to medical leave taken in early 2017, see, e.g., id. ¶¶ 44,

54, shed no light on this critical matter.

Furthermore, even if plaintiff had identified a disability, the complaint fails to allege facts

connecting an alleged disability to an adverse employment action, such as plaintiff’s termination.

See Perez v. District of Columbia Dep’t of Employment Servs., 305 F. Supp. 3d 51, 58 (D.D.C.

2018) (dismissing disability discrimination claim where plaintiff “never once offers factual

allegations supporting a causal nexus between the adverse actions (her discharge or pay

discrepancy) and her disability”). Counts 3, 4 and 11 of the complaint must therefore be

5. Equal Pay Act Claim (Count 12)

The EPA makes unlawful for an employer to “discriminate . . . between employees on the

basis of sex by paying wages to employees in such establishment at a rate less than the rate at

which he pays wages to employees of the opposite sex . . . for equal work on jobs the

performance of which requires equal skill, effort, and responsibility, and which are performed

under similar working conditions.” 29 U.S.C. § 206(d)(1). Plaintiff alleges that JPMC violated

the EPA by “engag[ing] in direct discrimination” against him “through willful compensation

13 discrimination,” Compl. at 30, apparently due to a “differential in pay between male and female

employees,” id., for which plaintiff allegedly “sustained, and will continue to sustain, economic

damages” and emotional distress, id.

An EPA claim has three elements: “(1) that the plaintiff ‘was doing substantially equal

work on the job’ as members of the opposite sex, (2) that the plaintiff’s job ‘was performed

under similar working conditions,’ and (3) that the plaintiff ‘was paid at a lower wage than those

members of the opposite sex.’” Perez, 305 F. Supp. 3d at 56 (quoting Cornish v. District of

Columbia, 67 F. Supp. 3d 345, 360 (D.D.C. 2014)) (additional citation omitted). Wholly missing

from plaintiff’s complaint are any facts to support an EPA claim. The sole reference to

plaintiff’s pay in the complaint is the assertion that he was paid “drastically below market level

by approximately $40,000.” Compl. ¶ 36. He fails to allege that he was paid less than any other

employee because of his sex. For this reason, Count 12 must be dismissed. See Carty v. District

of Columbia Gov’t, No. 10-7081, 2010 WL 4340405, at *1 (D.C. Cir. Oct. 21, 2010) (concluding

that “Equal Pay Act . . . claim was properly dismissed for failure to state a claim because the

complaint did not contain any allegation of wage discrimination on the basis of gender”); Perez,

305 F. Supp. 3d at 56–57.

6. Deceptive and Unfair Trade Practice (Count 16)5

In Count 16, plaintiff alleges a violation of the District’s Consumer Protection Practices

Act (“CPPA”) based on being “misled” by JPMC with respect to “the terms and conditions of

[its] diversity and inclusion program[.]” Compl. at 41. He alleges that JPMC “engaged in false

advertising of employment compensations and other terms and conditions of employment (i.e

Disciplinary Practices),” causing him to suffer “psychological, professional and social harm to

5 Plaintiff designates two claims “Count 15,” and properly numbered, the second Count 15 is “Count 16.”

14 [his] reputation and future economic accomplishments.” Id. Plaintiff’s reliance on the CPPA is

misplaced.

“The CPPA applies only to consumer-merchant relationships.” Baylor v. Mitchell

Rubenstein & Assocs., P.C., 857 F.3d 939, 948 (D.C. Cir. 2017) (citing Snowder v. District of

Columbia, 949 A.2d 590, 598–600 (D.C. 2008)); Howard v. Riggs Nat’l Bank, 432 A.2d 701,

709 (D.C. 1981). Plaintiff does not allege any consumer-merchant relationship between himself

and any defendant, and without such a relationship the CPPA claim must be dismissed. See

Plummer v. Safeway, Inc., 934 F. Supp. 2d 191, 199 (D.D.C. 2013) (dismissing CPPA claim

where plaintiff “does not assert a consumer-merchant relationship with [defendant], nor can one

be inferred since [plaintiff] is [an employee of defendant] and the only factual information in the

record relates to his employee-employer relationship with [defendant]”). Count 16 therefore is

7. Vicarious Liability (Count 2)

Through Count 2, plaintiff attempts to hold JPMC liable for the tortious conduct of its

employees. See generally Compl. at 35-36. Yet, all of the underlying claims fail and,

consequently, Count 2 fails also and must be dismissed.

B. Plaintiff’s Motion for Leave to Amend the Complaint

Following the filing of defendants’ motions to dismiss, the Court issued an Order, ECF

No. 16, advising plaintiff of his obligation to respond to these motions and cautioning that, if he

failed to file a response by January 17, 2020, defendants’ motions would be resolved without the

benefit of his position.6 Rather than filing an opposition to defendants’ motions, plaintiff filed a

motion for leave to amend his complaint, ECF No. 24, but without filing an actual copy of the

6 Plaintiff’s motion to amend his complaint is treated as if it had been filed on January 17, 2020, the date of receipt by the Clerk of Court.

15 proposed pleading as required under the Local Civil Rules of this Court. See LCvR 15.1

(requiring that “[a] motion for leave to file an amended pleading shall attach, as an exhibit, a

copy of the proposed pleading as amended.”).

“[T]he grant or denial of an opportunity to amend is within the discretion of the District

Court.” Foman v. Davis, 371 U.S. 178, 182 (1962). While leave to amend a complaint should

be freely granted when justice so requires, see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996) (citing Fed. R. Civ. P. 15(a)(2)), the Court may deny a motion to amend if such

amendment would be futile, see Foman, 371 U.S. at 182; James Madison Ltd. v. Ludwig, 82 F.3d

1085, 1099 (D.C. Cir. 1996). “Amendment is futile if the amended complaint would not

withstand a motion to dismiss.” Hall & Assocs. v. Envtl. Prot. Agency, 956 F.3d 621, 630 (D.C.

Cir. 2020) (citing Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (per curiam)).

As already pointed out, plaintiff’s motion for leave to amend his complaint fails to

comply with Local Civil Rule 15.1 because a proposed amended pleading is not attached as an

exhibit. The proposed pleading is included in the record of this case only because each set of

defendants provided a copy of this pleading, which had been furnished in an email from plaintiff

to defense counsel, as an exhibit to its respective opposition to plaintiff’s motion. See JPMC

Defs.’ Opp’n to Pl.’s Mot. for Leave to Am. Compl, Ex. A, ECF No. 29-1; Carlyle Defs.’ Opp’n

to Pl.’s Mot. for Leave to Am. His Compl., Ex. A, ECF No. 33-2.

The proposed amended complaint suffers the same pleading defects as the original,

including, in particular, the lengthy, disorganized and rambling nature of the allegations and

claims. Its factual allegations are woefully insufficient to support the claims plaintiff seeks to

assert, whether against the defendants named in the original complaint, or against the new

defendants named in the proposed amended complaint. This proposed pleading could not

16 survive a motion to dismiss and, accordingly, the Court concludes that amendment is futile. See

Araya v. Schwartz, No. 15-7022, 2015 WL 5210465, at *1 (D.C. Cir. July 21, 2015) (affirming

district court rulings that appellant was not entitled to amend complaint under Fed. R. Civ. P.

15(a) and that proposed amendments were futile).

IV. CONCLUSION

Plaintiff’s original complaint fails to state a claim upon which relief can be granted,

warranting grant of defendants’ motions to dismiss. Plaintiff’s motion for leave to amend the

complaint is denied as futile, and plaintiff’s three remaining motions are denied as moot.

An Order consistent with this Memorandum Opinion will be issued contemporaneously.

DATE: September 8, 2020 /s/ Beryl A. Howell BERYL A. HOWELL Chief Judge