Fowler v. Dist. of Columbia

MARGARET FOWLER Plaintiff, v. DISTRICT OF COLUMBIA et al., Defendants.

Civil Action No. 18-634 (RDM)

United States District Court, District of Columbia

September 16, 2021

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge.

Plaintiff Margaret Fowler brings this lawsuit against the District of Columbia and her former employer, the District of Columbia Alcohol Beverage Regulation Administration (“ABRA”). Before the Court is Plaintiff's third amended complaint, in which she alleges a claim for retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and claims for retaliation and interference with the right to take protected leave in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C § 2601 et seq. Dkt. 40 at 4-7 (3d Am. Compl. ¶¶ 37-75). For the third time, Defendants move to dismiss Plaintiff's complaint.

For the reasons that follow, the Court will GRANT in part and DENY in part Defendants' motion to dismiss.

I. BACKGROUND

For purposes of resolving the pending motion to dismiss, the Court accepts the following factual allegations as true. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Plaintiff who is now 63 or 64 years old, worked for the ABRA from August 17, 1987, until October 15, 2019. Dkt. 40 at 2, 7 (3d Am. Compl. ¶¶ 7-8, 73-75). Beginning in 1994 and until her termination, she served as a Licensing Specialist, a Grade 11 position. Id. at 2 (3d Am. Compl. ¶ 8). At some point, problems arose between Plaintiff and her supervisor, Licensing Program Manager Sean Gordy. In 2013, Plaintiff spoke with ABRA Director Fred Moosally about Gordy, informing Moosally that Gordy was “targeting her on the basis of her age.” Id. at 5 (3d Am. Compl. ¶ 39). Plaintiff had similar discussions with Moosally about Gordy “on many occasions.” Id. (3d Am. Compl. ¶¶ 40). In November 2016, for “no legitimate reason” and without explanation, Gordy removed Plaintiff's files from her desk and requested that Kathy Kelly, “Plaintiff's Grade 11 counterpart and the Records Management Specialist, overs[ee] Plaintiff's files.” Id. (3d Am. Compl. ¶¶ 9-10). Around the same time that Gordy removed Plaintiff's files from her desk, an incident occurred in which Gordy “screamed at, demeaned, physically threatened, and shoved Plaintiff due to a miniscule office and bureaucratic issue.” Id. at 5 (3d Am. Compl. ¶ 42). Plaintiff told Moosally about Gordy's conduct, but “[n]o action was taken as part of these verbal communications.” Id. (3d Am. Compl. ¶¶ 42, 44).

Meanwhile, on November 3, 2016, the D.C. Department of Human Resources (“DCHR”) received a request from the ABRA “for support on a special investigation involving Plaintiff, based on allegations of employee misconduct and insubordination, including . . . making threats, behaving in an unstable manner, and exhibiting caustic behavior towards Mr. Gordy.” Id. at 2 (3d Am. Compl. ¶ 11). Between November 21 and December 16, 2016, the “Audit and Special Investigations” team met with “several witnesses, including various members of the ABRA Licensing Division and ABRA management.” Id. at 3 (3d Am. Compl. ¶ 12). Following a comprehensive investigation, the Audit and Special Investigations team closed the case on January 13, 2017. Id. (3d Am. Compl. ¶ 13). As part of or in addition to this investigation, the DCHR “moved forward on a complaint sent to [it] by . . . Moosally, ” who “failed to advise all parties investigating the complaint that Plaintiff filed a verbal complaint with him the very same day Mr. Gordy filed a complaint.” Id. (3d Am. Compl. ¶ 14).

On or about June 30, 2017, Plaintiff was placed on a ninety-day Performance Improvement Plan (“PIP”) for “failure to meet the minimum requirements for her position.” Id. (3d Am. Compl. ¶ 15). Prior to that time, “Plaintiff was never informed that her work ethic was below satisfactory;” indeed, she had received a “Valued Performer” rating for her performance during the previous fiscal year ending September 30, 2016. Id. (3d Am. Compl. ¶ 16). According to Plaintiff, “[t]he American Federation of State, County and Municipal Employees, AFL-CIO, Local 2743 believe[d] that DCHR failed to properly investigate this matter and placed Plaintiff on a PIP inconsistent with the personnel regulations.” Id. (3d Am. Compl. ¶ 18). On September 1, 2017, the union requested that “all negative documents placed in Plaintiff's personnel folder [be] removed, and any leave used by Plaintiff in connection with this matter be restored.” Id. (3d Am. Compl. ¶ 19). That same day, Plaintiff filed a “written grievance” with Moosally regarding Gordy's conduct. Id. at 5 (3d Am. Compl. ¶ 45).

Plaintiff filed a claim with the Equal Employment Opportunity Commission (“EEOC”) on December 6, 2017, which the EEOC dismissed two days later. Id. at 3 (3d Am. Compl. ¶ 20). Plaintiff received a right-to-sue letter from the EEOC on December 13, 2017. Id. She then filed this lawsuit on March 20, 2018, id. (3d Am. Compl. ¶ 21), initially alleging that Defendants created a hostile work environment in violation of Title VII, Dkt. 1 at 3-5 (Compl. ¶¶ 21-34), and that they discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Dkt. 1 at 5-6 (Compl. ¶¶ 35-46).

Roughly nine months after filing suit, on November 6, 2018, Plaintiff received a “Notice of Proposed Suspension of [Five] Working Days” based on her “alleged tardiness and [non]compliance” with the ABRA's “Internal Procedure for Time and Attendance.” Dkt. 40 at 3 (3d Am. Compl. ¶¶ 22-23). The notice alleged that Plaintiff arrived late to work on multiple occasions. Id. (3d Am. Compl. ¶ 24). But, according to Plaintiff, each time she was late for work she “compensated for the time missed by remaining at work past her designated time to leave.” Id. at 4 (3d Am. Compl. ¶ 25). By contrast, younger male employees who arrived late for work were permitted to make up the time they missed without reprimand. Id. (3d Am. Compl. ¶ 26). On December 20, 2018, Plaintiff received the ABRA's final decision to suspend her for five days. Id. (3d Am. Compl. ¶ 27). She appealed her suspension on January 15, 2019, but the ABRA affirmed its decision on February 4, 2019. Id. (3d Am. Compl. ¶¶ 28-29).

In early June 2019, Plaintiff met with Moosally to express her desire to take FMLA leave to “recuperate and undergo a procedure for her disability.” Id. at 6 (3d Am. Compl. ¶ 59). Moosally directed Plaintiff to speak with another employee, Camille Robinson, to “walk-through the procedure of utilizing FMLA [leave].” Id. (3d Am. Compl. ¶ 60). Sometime later in June, Plaintiff “went to . . . Robinson in an attempt to exercise her FMLA rights, ” and Robinson directed Plaintiff to fill out the “requisite paperwork.” Id. (3d Am. Compl. ¶ 61). On June 28, 2019, Plaintiff was placed on a second PIP, despite receiving favorable ratings in her annual performance review. Id. (3d Am. Compl. ¶ 52).

On July 29, 2019, Plaintiff asked Robinson to “sign the Employer section of the FMLA form.” Id. (3d Am. Compl. ¶ 62). Two days later, on July 31, Plaintiff received a “Notice of Proposed Adverse Action: Removal” that notified her of the ABRA's intention to terminate her employment. Id. at 4 (3d Am. Compl. ¶ 31). According to Plaintiff, the notice stated that her removal was based on an “alleged failure to meet the requirements of her [PIP], [to] carry out her responsibilities as a Licensing Specialist, . . . to assist ABRA customers and undue delay in completing her assigned caseload.” Id. (3d Am. Compl. ¶ 32). Plaintiff appealed the agency's decision, “citing her belief that she was being targeted for failure and forced into early retirement.” Id. (3d Am. Compl. ¶ 33). On August 1, one day after receiving the notice of termination, Plaintiff filed a charge of discrimination with the D.C. Office of Human Rights. Id. at 5 (3d Am. Compl. ¶ 48). Meanwhile, Plaintiff continued to pursue her request for FMLA leave, emailing “the completed FMLA form with the Physician's Medical Facts” on August 9, 2019. Id. at 6 (3d Am. Compl. ¶ 63). Plaintiff's termination became final on October 15, 2019. Id. at 4, 7 (3d Am. Compl. ¶¶ 35, 74). Plaintiff “filed a claim with the [EEOC] and . . . received a right-to-sue letter.” Id. at 4 (3d Am. Compl. ¶ 36).

After Plaintiff was terminated, she amended her complaint in this action to add a retaliation claim under Title VII. Dkt. 33 at 4, 8 (2d Am. Compl. ¶¶ 30-35, 76-80). In her second amended complaint, Plaintiff alleged that Defendants created a hostile work environment in violation of Title VII, id. at 4-6 (2d Am. Compl. ¶¶ 36-56); discriminated against her on the basis of her age in violation of the ADEA, id. at 6-8 (2d Am. Compl. ¶¶ 57-75); and retaliated against her in violation of Title VII, id. at 8 (2d Am. Compl. ¶¶ 76-80). In response, Defendants moved to dismiss for failure to state a claim. Dkt. 34.

On November 27, 2020, the Court granted Defendants' motion in its entirety. Dkt. 39. First, the Court dismissed Plaintiff's claims against the ABRA on the ground that the ABRA is non sui juris. See Id. at 7. Second, the Court dismissed Plaintiff's Title VII hostile work environment claim against the District of Columbia holding that she had failed to allege facts sufficient to state a claim; for the most part, she failed to allege any causal nexus between the challenged conduct and her sex, and, where she did allege some connection to her sex, she failed to allege misconduct that was sufficiently severe and pervasive to state a claim. Id. at 9-10. Third, the Court dismissed Plaintiff's ADEA claim on the ground that Plaintiff conceded the point by failing to offer any...