Byrd v. Bacerra

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CORETTE BYRD, Plaintiff, v. XAVIER BECERRA, Defendant.

Civil Action No. 22-3746 (TSC)

United States District Court, District of Columbia

October 28, 2024

MEMORANDUM OPINION

TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

Plaintiff Corette Byrd, a former employee of the Bureau of Primary Health Care (“BPHC”), a division within the U.S Department of Health and Human Services (“HHS”) brought this action against Xavier Becerra, in his official capacity as HHS Secretary, pursuant to Title VII of the Civil Rights Act of 1964, alleging that BPHC discriminated against her based on her race. Defendant moved to dismiss Counts I and II, and to limit Plaintiff's eligibility to receive back pay on the grounds that she voluntarily resigned from her position.

Having considered the record and the parties' briefing, the court will GRANT in part and DENY in part Defendant's Motion.

I. BACKGROUND

Plaintiff worked at BPHC as a Senior Advisor until she resigned in March 2021. Am. Compl., ECF No. 13 at 2, 11. She was the only Black Senior Advisor while she was employed at BPHC. Id. at 2.

Plaintiff alleges that, from around November 2019 until she resigned, her supervisors reassigned about 95% of her duties to her White colleagues, including her leadership of the Ending HIV Epidemic Initiative. Id. at 2-3. She also claims that she was not given “any new work” while the White Senior Advisors were given valuable, “career enhancing” opportunities. Id. at 3. Plaintiff claims that in May 2020 she received a special assignment to “lead and develop the National Hypertension Initiative,” which was cut short due to an “overwhelming, urgent amount of work back at BPHC.” Id. at 4. When she returned to BPHC, however, she was “barely provided with . . . any assignments at all,” and the assignments she did receive she had to “beg” for and were “busy work.” Id. at 4-5. Her White colleagues, “almost all of whom had less experience than” she did, “began receiving special assignments and projects, details, and other opportunities,” and “did not have to beg . . . for new assignments.” Id. at 5-6. After Plaintiff “asked [her supervisor] for work several times,” she was assigned to “develop and lead the transition work for the new administration.” Id. at 5. But after Plaintiff spent “several months” developing transition materials, her supervisor assigned a White Senior Advisor to the Health Resources and Services Administration's (“HRSA”) Office of the Administrator to support the transition. Id. at 7.

In December 2020, Plaintiff applied for a vacant Supervisory Public Health Analyst position. Id. at 8. She was interviewed for the position, but one of her less qualified White colleagues was eventually selected. Id. at 8, 10. While waiting to hear back regarding the position, Plaintiff had her 2020 performance review, in which she received a 4 out of 5 rating for “achiev[ing] more than expected results.” Id. at 8. Because she received a 4 rather than a 5, however, Plaintiff was denied a pay increase and was given a lower bonus. Id. at 9. She claims her supervisors “did not rate any white Senior Advisors lower than [her] for this performance period.” Id. at 10. Plaintiff challenged her performance rating, but her second line supervisor, who “had not assigned [Plaintiff] any work 90 days prior to the end of year performance review,” said that “the write up and rating reflect[ed]” the quality of Plaintiff's work. Id. at 9.

On March 10, 2021, two days before she resigned, Plaintiff made initial contact with an Equal Employment Opportunity (“EEO”) Counselor. Id. at 2. The Equal Employment Opportunity Commission (“EEOC”) issued a Final Agency Decision on her complaint on September 20, 2022. Id. On December 16, 2022, Plaintiff filed this action. On April 26, 2023, the court granted Plaintiff's Motion to File an Amended Complaint. Min. Order, April 26, 2023. Plaintiff seeks compensatory damages, “back pay as if [Plaintiff] had been promoted, plus interest,” Plaintiff's “retroactive within grade increase and back pay, plus interest,” a revised performance rating and accompanying cash bonus, an injunction prohibiting “further discriminati[on] against Plaintiff,” and attorney's fees and costs. Am. Compl. at 14.

Defendant filed a Partial Motion to Dismiss Count I and II and to limit Plaintiff's eligibility to recover back pay. Partial Mot. to Dismiss Am. Compl., ECF No. 14; see Mem. in Supp., ECF No. 14-1 (“Motion”). Defendant argues that (1) Plaintiff did not exhaust her administrative remedies in Count I because she did not make initial contact with her EEO Counselor within 45 days of the allegedly discriminatory acts, Mot. at 8-11, (2) Plaintiff failed to state a claim in Count I or Count II, id. at 11-21, and (3) Plaintiffs ability to recover back pay should be limited to the date of her resignation because she did not plead that she was constructively discharged, id. at 21-24.

In opposition, Plaintiff contends that she exhausted Count I because it is a hostile work environment claim, and therefore only one of the alleged acts needed to occur within 45 days of her initial contact with her EEO Counselor. Mem. in Opp'n, ECF No. 15 at 6-7 (“Opp'n”). Plaintiff also argues that her allegations allow the court to draw a reasonable inference of discrimination for Counts I and II and that denying Plaintiff career opportunities by reassignment constitutes an adverse employment action. Id. at 8-11, 14-15.

On February 5, 2024, the court granted Defendant's Motion, ECF Nos. 17, 18. But on March 7, 2024, the court sua sponte vacated its Memorandum Opinion and Order to reconsider its decision. Min. Order, Mar. 7, 2024; see Fed.R.Civ.P. 54(b) (providing that any decision “that adjudicates fewer than all the claims . . . does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims.”).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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) (citation omitted). In other words, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

In deciding a motion to dismiss, the court presumes the truth of the factual allegations in the complaint and affords the plaintiff “every favorable inference that may be drawn from the allegations of fact.” Laughlin v. Holder, 923 F.Supp.2d 204, 208-09 (D.D.C. 2013) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court does not, however, “accept as true ‘a legal conclusion couched as a factual allegation,' nor inferences that are unsupported by the facts set out in the complaint.” Id. at 209 (citation omitted).

III. ANALYSIS

A. Legal Framework

i. Exhaustion

To bring a civil action under Title VII, a plaintiff must first “timely exhaust . . . administrative remedies.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). To exhaust administrative remedies, “[a]n aggrieved person must initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1). This exhaustion requirement is “akin to a statute of limitations.” Stewart v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003). Thus, although exhaustion is not a “jurisdictional bar,” the court “must still address” it at the outset. Id. “Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” Bowden, 106 F.3d at 437 (citation omitted). “If the defendant meets its burden, the plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of the defense.” Id. (citation omitted).

Claims involving discrete act claims and hostile work environment have different exhaustion requirements. See, e.g., Coleman-Adebayo v. Leavitt, 326 F.Supp.2d 132, 137-38 (D.D.C. 2004). Accordingly, the court must identify which type of claim is at issue before deciding whether it was exhausted.

A claim pleads discrete acts of discrimination if it alleges “incidents that were different in kind, involved different individuals, and occurred at different times.” Est. of Rudder v. Vilsack, 10 F.Supp.3d 190, 197 (D.D.C. 2014). To plead a hostile work environment claim, a complaint must allege “‘discriminatory intimidation, ridicule, and insult' that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “[T]he removal of important assignments, lowered performance evaluations, and close scrutiny of assignments by management” are not “sufficiently intimidating or offensive in an ordinary workplace context” to support a hostile work environment claim, especially when they are not close in time. Nurriddin v. Bolden, 674 F.Supp.2d 64, 94 (D.D.C. 2009). And “a plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard.” Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) (“Baird I”).

Where an employee alleges discrete acts, “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” Nat'l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 113 (2002). ...