UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TERRANCE WILLIAMS,
Plaintiff, v. Civ. Action No. 19-2636 (EGS) TURNER SECURITY, INC., 1
Defendant.
MEMORANDUM OPINION
Plaintiff Terrance Williams (“Mr. Williams”), proceeding
pro se, brings this lawsuit against Turner Security, Inc.
(“Turner Security”) alleging: (1) retaliation under Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2
et seq.; (2) violation of 42 U.S.C. § 1981; (3) violations of the
“D.C. Compensation Act”; (4) violations of the National Labor
Relations Act (“NLRA”); and (5) the D.C. Family Medical Leave
Act (“DCFMLA”), D.C. Code § 32-501 et seq. See Am. Compl., ECF
1 Defendant states that Plaintiff improperly identifies Turner Services Inc. as the defendant, but because Plaintiff was employed by Turner Security, Inc. (a sister company to Turner Services, Inc.), Turner Security, Inc. is the proper defendant. Accordingly, the Court, sua sponte, ORDERS the substitution of the proper defendant, Turner Security, Inc. See, e.g., Sampson v. D.C. Dept of Corr., 20 F. Supp. 3d 282, 285 (2014) (sua sponte ordering substitution of the District of Columbia where plaintiff had named the D.C. Department of Corrections).
1 No. 19 at 3, 8, 9. 2 Pending before the Court is Turner Security’s
Motion to Dismiss. See ECF No. 22-1. Upon consideration of the
motion, opposition, the reply, the applicable law, and the
entire record, Turner Security’s Motion to Dismiss is GRANTED.
I. Factual Background
Mr. Williams alleges that he was discriminated against when
he was terminated in “retaliation for whistleblowing and
challenging questionable business practices.” Am. Compl., ECF
No. 19 at 3. He alleges that his 2018 performance goals included
responsibilities that were not part of his position description.
Id. at 5. Mr. Williams alleges that between April 25, 2018, and
December 2018, he voiced concerns to management about being
required to perform duties that were inconsistent with his
position description, but he received no response to his
concerns and instead was assigned additional extra duties. Id.
at 6. He alleges that he discussed his concerns with Turner
Security’s Human Resources Department, leadership, and other
concerned employees. Id. at 8.
Mr. Williams alleges that from January to March 2019, he
was on short term disability, and upon his return to work he
“was asked to sign a document stating that Turner Security had
2 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF page number, not the page number of the filed document.
2 to the ability to revise and change company policy without
notifying staff of the changes.” Id. at 6. He alleges that he
was not given enough time to review the updates to the Operation
Manual, and that he refused to sign the document. Id. Mr.
Williams alleges that thereafter, he was terminated “without
cause.” Id. at 7.
Mr. Williams alleges that in March 2019, he attempted to
file for unemployment benefits, but that his request was denied
because Turner Security stated that he had been terminated due
to “gross misconduct.” Id. at 7. He further alleges that his
appeal of the denial was resolved in his favor because Turner
Security did not provide evidence of misconduct. Id. at 7-8.
Finally, Mr. Turner alleges he filed a claim with the
District of Columbia Office of Human Rights. Id.
II. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the 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 quotation marks omitted).
3 Despite this liberal pleading standard, to survive a motion
to dismiss, 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)
(internal quotation marks omitted). “In determining whether a
complaint fails to state a claim, [the Court] may consider only
the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the Court] may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Schl., 117 F.3d 621, 624 (D.C. Cir. 1997). A
claim is facially plausible when the facts pled in the complaint
allow the court to "draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. The
standard does not amount to a "probability requirement," but it
does require more than a "sheer possibility that a defendant has
acted unlawfully." Id.
"[W]hen ruling on a defendant's motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint." Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(internal quotation marks omitted). In addition, the court must
give the plaintiff the "benefit of all inferences that can be
derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). A "pro se complaint is
4 entitled to liberal construction." Washington v. Geren, 675 F.
Supp. 2d 26, 31 (D.D.C. 2009) (citation omitted). Even so,
"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements" are not sufficient to
state a claim. Iqbal, 556 U.S. at 678.
III. Analysis
A. Mr. Turner Has Failed to State a Claim for Retaliation 3
Under Title VII, it is unlawful for an employer to: (1)
“discriminate against any individual with respect to [his]
compensation, terms, conditions, or privileges of employment,
because of [his] race, color, religion, sex, or national
origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any
individual for participating in a protected activity, 42 U.S.C.
§ 2000e-3(a). To establish a prima facie claim of retaliation,
the plaintiff must allege that he engaged in activity protected
by Title VII, the employer took adverse action against him, and
the employer took that action because of the employee's
protected conduct. Hamilton v. Geithner, 666 F.3d 1344, 1357
(D.C. Cir. 2012).
3 It is unclear whether Mr. Williams exhausted his administrative remedies with regard to his retaliation claim. However, even assuming that he did exhaust his administrative remedies with regard to this claim, he has failed to state a claim for retaliation.
5 Mr. Williams alleges that his termination was in
retaliation for challenging “questionable business practices.”
Am. Compl., ECF No. 19 at 3. Those practices are that: (1) he
was required to perform duties that were not part of his job
description; and (2) he was required to sign a document
regarding his employer’s ability to make changes to company
policy, but he was not given enough time to review the document.
Id. at 6. However, complaining about being required to perform
duties that are inconsistent with his job activities and not
being given enough time to review a document are not protected
activities. See Watson v. D.C. Water & Sewer Authority, No. CV
16-2033 (CKK), 2018 WL 6000201, at *15 (D.D.C. Nov. 15, 2018),
aff’d, 777 F. App’x 529 (D.C. Cir. 2019) (noting that
“complaining about unfair treatment is not a protected
activity”) (internal quotation marks omitted).
In his opposition briefing, Mr. Williams states that his
“request for equitable leave practices was disregarded.” Opp’n
ECF No. 24 at 3. However, his Amended Complaint contains no
allegations regarding this request. See generally Am. Compl.,
ECF No. 19. Furthermore, Mr. Williams does not respond to Turner
Security’s argument that he has not alleged facts that would
amount to protected activity, see Def.’s Motion to Dismiss
(“Def.’s Mot.”), ECF No. 22-1 at 9-10; focusing instead on the
fact that he was terminated, see Pl.’s Opp’n, ECF No. 24 at 3.
6 Accordingly, Mr. Williams has conceded this argument. See
Haraway v. D.C., No. 14-1273 (RJL), 2015 WL 5138711, at 5
(D.D.C. Aug. 31, 2015), aff’d, No. 15-7095, 2016 WL 232009 (D.C.
Cir. Jan. 4, 2016) (summarily affirming dismissal of claims pro
se plaintiffs failed to address in response to dispositive
motion). For all of these reasons, Mr. Williams’s retaliation
claim is DISMISSED.
B. Mr. Williams Has Failed to State a Claim Under 42 U.S.C. § 1981
“Under 42 U.S.C. § 1981, [a]ll persons within the
jurisdiction of the United States shall have the same right ...
to make and enforce contracts, which includes the making,
performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of
the contractual relationship.” Stafford v. George Washington
Univ., No. 18-CV-2789 (CRC, 2019 WL 2373332, at *18 (D.D.C. June
5, 2019) (internal quotation marks omitted). “‘To establish a
claim under § 1981, a plaintiff must show that (1) [he is a
member] of a racial minority [group]; (2) the defendant had an
intent to discriminate on the basis of race; and (3) the
discrimination concerned one or more of the activities
enumerated in the statute.’” Id. (quoting Mitchell v. DCX, Inc.,
274 F. Supp. 2d 33, 44–45 (D.D.C. 2003) (citation omitted and
first alteration added).
7 Mr. William’s amended complaint contains no allegations
that would establish a claim that Turner Security intended to
discriminate against him based on his race, or that he was
discriminated against with regard to a contractual relationship.
See generally Am. Compl., ECF No. 19. Furthermore, his
Opposition briefing fails to respond to this argument and so the
Court will treat this argument as conceded. See Haraway, 2015 WL
5138711, at 5. For these reasons, Mr. Williams’s claim under 42
U.S.C. § 1981 is DISMISSED.
C. Mr. Williams Fails to State a claim for Wrongful Termination
Construing his Amended Complaint liberally, it appears that
Mr. Williams alleges a cause of action for wrongful termination
because he states he was terminated “without cause.” Am. Compl.,
ECF No. 19 at 5. Turner Security argues that this claim fails
because Mr. Williams was an at-will employee, and he has not
alleged that a contract governed his employment. Def.’s Mot.,
ECF No. 22-1 at 11. Turner Security attaches an excerpt from the
Security Operations Manual (“Manual”) to its motion, pointing
out that the manual states that “[s]ecurity officers are at-will
employees and are not subject to provisions that may be
applicable to employees under contract.” Id. Mr. Williams
responds that the Manual provided is from 2016, whereas it is
updated annually. Pl.’s Opp’n, ECF No. 24 at 4. Mr. Williams
8 points out that the Manual refers to “progressive” discipline,
which was not used when he was terminated. Id. He also argues
that while the Manual states that progressive discipline may be
inappropriate where the violation is severe, he was terminated
merely because he asked if he could read the Manual before
signing it. Id.
The Court may properly consider the excerpt from the Manual
as Mr. Williams cites it in his Amended Complaint and apparently
intended to attach it as Exhibit A to the Amended Complaint. See
Hinton v. Corrections Corp. of Am., 624 F. Supp. 2d 45, 46
(D.D.C. 2013) (the court may also consider “documents upon which
the plaintiff’s complaint necessarily relies even if the
document is produced not by the plaintiff in the complaint but
by the defendant in a motion to dismiss”) (internal quotations
omitted). Mr. Williams does not dispute the authenticity of the
Manual, although he notes that it is updated annually, pointing
to the language regarding progressive discipline. Pl.’s Opp’n,
ECF No. 24 at 8.
In the District of Columbia, all employment is presumed to be terminable at-will “unless a contrary contractual intent is clearly expressed.” Turner v. Fed. Express Corp., 539 F. Supp. 2d 404, 410 (D.D.C. 2008). “The presumption of at-will employment is rebutted only where the parties clearly state an intention to place limits on the employer's right to terminate.” Id. Such clear intent may be reflected in an employer's personnel manual or employment handbook, thereby giving rise to
9 an implied contract. See Clampitt v. Am. Univ., 957 A.2d 23, 35 (D.C. 2008). A personnel manual creates an implied employment contract when, as pertinent here, it sets out preconditions that must be met before termination of employment, Strass v. Kaiser Found. Health Plan, 744 A.2d 1000, 1013–14 (D.C. 2000), and when the employer publishes or distributes the personnel manual containing those preconditions to all employees, see Clampitt, 957 A.2d at 36. Employers may, however, “effectively disclaim any implied contractual obligations arising from such provisions.” Boulton v. Inst. of Int'l Educ., 808 A.2d 499, 505 (D.C. 2002). “The legal effect of such a disclaimer is, in the first instance, a question for the court to decide.” Id.
Howard v. Fed. Express Corp., 280 F. Supp. 3d 26, 30 (D.D.C.
2017).
Here, the Manual states as follows: “This policy is not
intended to restrict or interfere with the Company’s right to
terminate or suspend employment without cause and without notice
or in accordance with the terms of written employment contracts,
if applicable. Security officers are “at will” employees and are
not subject to provisions that may be applicable to employees
under contract.” Manual, ECF No. 22-2 at 3-4. The Manual will
“create[] an implied contract” if “it sets out preconditions
that must be met before termination of employment.” Howard, 280
F. Supp. at 30. The Manual states that “[t]here will be certain
instances in which progressive discipline is not appropriate due
to the severity of the violation. In those cases, some of the
10 steps described below may be condensed, omitted or bypassed.”
Manual, ECF No. 22-2 at 4. Because the Manual does not require
“preconditions that must be met,” it does not create an implied
contract. And even if the Manual created an implied contract,
Turner Security has effectively disclaimed any contractual
obligations arising from the Manual by stating that: (1)
security officers are “at will” employees and (2) progressive
discipline is not appropriate in all instances. For these
reasons, Mr. William’s claim for wrongful termination is
DISMISSED.
D. Mr. Williams Cannot State a claim Under The National Labor Relations Act
Mr. Williams alleges a violation of the NLRA. See Am. Compl.,
ECF No. 19 at 8 (alleging that he discussed his concerns with
other “concerned employees” and citing 29 U.S.C. § 157).
“Section 7 of the [NLRA] preserves employees' rights ‘to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in the other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection.’” Parks v. Giant of Maryland, LLC, 295 F. Supp. 3d
5, 10 (D.D.C. 2018) (quoting 29 U.S.C. § 157). “Section 8, in
turn, makes it ‘an unfair labor practice for an employer ... to
11 interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in [Section 7] . . ..’” Id. (quoting 29
U.S.C. § 158(a)(1). However, “[t]he Supreme Court has held that
‘[w]hen an activity is arguably subject to Section 7 or Section
8 of the [National Labor Relations Act], the States as well as
the federal courts must defer to the exclusive competence of the
National Labor Relations Board.’ Id. (quoting San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236, 245, (1959). Mr.
Williams fails to respond to this argument in his Opposition
briefing, see generally Opp’n, ECF No. 24; and so he has
conceded this argument. See Haraway, 2015 WL 5138711, at 5. For
these reasons, any claim Mr. Williams asserts under the NLRA is
preempted and the claim is DISMISSED.
E. Mr. Williams Has Failed to State a Claim Under the “D.C. Compensation Act”
Mr. Williams alleges violations of the “D.C. Compensation
Act.” Am. Compl., ECF No. 19 at 3. The facts which support this
claim are his allegations that in March 2019, he attempted to
file for unemployment benefits, that his request was denied
because Turner Security stated that he had been terminated due
to “gross misconduct,” and that his appeal of this denial was
resolved in his favor because Turner Security did not provide
evidence of misconduct. Id. at 7-8. Mr. Williams alleges that
“[t]he ‘denial’ of [his] request for unemployment benefit[s]
12 presented a violation in itself when the appeal was ruled in
[his] favor.” Id. at 9. Turner Security argues that there is no
“D.C. Compensation Act” in the District of Columbia Code or
Municipal Regulations. See Def.’s Mot., ECF No. 22-1 at 13-14.
Unemployment compensation in the District of Columbia is
governed by D.C. Code § 51-107. Mr. Williams alleges that his
appeal of the denial of benefits was resolved in his favor. He
has provided no legal authority, however, for his argument that
Turner Security violated D.C. unemployment compensation laws
when his claim was initially denied. Furthermore, Mr. Williams
fails to respond to Turner Security’s argument in his opposition
conceded the argument. See Haraway, 2015 WL 5138711, at 5. For
these reasons, Mr. Williams’s claim under the “D.C. Compensation
Act” is DISMISSED.
F. Mr. Williams Has Failed To State a claim Under the D.C. Family Medical Leave Act
Mr. Williams alleges a violation of the D.C. Family Medical
Leave Act (“DCFMLA”), D.C. Code § 32-501 et seq. See Am. Compl.,
ECF No. 19 at 9 (alleging that “[w]hen [he] returned to work in
March 2018, his position description, additional policies,
security operations manuals . . .and . . daily operations logs
were revised.”). Turner Security argues that if Mr. Williams is
13 “alleg[ing] that he was not restored to his position, he may
[be] attempt[ing] to state a claim for interference under the
DCFMLA,” but that he has failed to state a prima facie claim
because he has only alleged that “he went out on a short term
disability leave, and when he returned, his position description
was revised.” Def.’s Mot., ECF No. 22-1 at 15.
Under the DCFMLA, an employee can assert a retaliation
claim. See Thomas v. D.C., 227 F. Supp. 3d 88, 110 (D.D.C.
2016). To state a retaliation claim, Mr. Williams must allege
that “(1) he exercised rights afforded by the [DCFMLA], (2) that
he suffered an adverse employment action, and (3) that there was
a causal connection between the exercise of his rights and the
adverse employment action.” Id. at 99.
Here, Mr. Williams alleges that from January to March 2019,
he was on short term disability, and upon his return to work he
“was asked to sign a document stating that Turner Security had
to the ability to revise and change company policy without
notifying staff of the changes.” Id. at 6. Mr. Williams alleges
that he was not given enough time to review the updates to the
Operation Manual, and that he refused to sign the document. Id.
Mr. Williams alleges that “his position description, additional
policies, security operations manuals . . .and . . daily
operations logs were revised,” Id. at 9; and that after he
returned to work and refused to sign the document, he was
14 terminated “without cause.” Id. at 7. While Mr. Turner alleged
that “he was on short term disability,” he has not alleged that
he took leave under the DCFMLA. See generally Am. Compl., ECF
No. 19. Furthermore, Mr. Williams fails to respond to this
argument in his opposition briefing, see generally Opp’n, ECF
No. 24; and so he has conceded this argument. See Haraway, 2015
WL 5138711, at 5. For all of these reasons, Mr. Williams’s
DCFMLA claim is DISMISSED.
IV. Conclusion
For the reasons stated above, Turner Security’s Motion to
Dismiss is GRANTED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 29, 2021