Guisbert v. Wash. Convention & Sports Auth.

GONZALO GUISBERT, Plaintiff, v. WASHINGTON CONVENTION ANDSPORTS AUTHORITY t/a EVENTS DC Defendant.

Civil No. 19-cv-2838 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 29, 2020

MEMORANDUM OPINION

Plaintiff Gonzalo Guisbert brings this employment discrimination action against Defendant Washington Convention and Sports Authority under Title VII, the Age Discrimination in Employment Act (ADEA), and the D.C. Human Rights Act (DCHRA). Guisbert alleges discrimination based on age and race, and age-based retaliation. (ECF No. 8, Am. Compl.) Defendant moves to dismiss the retaliation claims (Count V and VI) for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 11, Mot. to Dismiss.) For the reasons set forth below, the court will DENY Defendant's Motion to Dismiss.

I. BACKGROUND

Washington Convention and Sports Authority, called Events DC, is an independent authority of the D.C. Government. (Am. Compl. ¶ 8.) Events DC hired Guisbert, a Hispanic man, as a licensed building engineer in 1983, and he worked there for more than thirty-five years. (Id. ¶¶ 6, 17-20.) Guisbert alleges that, despite having a spotless disciplinary record, he was demoted without cause to an HVAC (heating, ventilation, and air conditioning) technician in early 2018. (Id. ¶¶ 17-18.) On September 11, 2018, Events DC terminated Guisbert for sleeping on the job in violation of company policy. (Id. ¶ 29; ECF No. 14-1, EEOC Charge.) Guisbert alleges he was notified by manager Hootan Kaboli, who had the authority to terminate employees. (Am. Compl. ¶¶ 29, 35.) Guisbert claims that Events DC did not terminate a similarly positioned employee, a Black man under the age of 40, for sleeping on the job, despite the fact that he had a lengthy disciplinary record. (Id. ¶¶ 30, 32-34.)

On April 10, 2019, Guisbert, with the help of an EEOC employee, filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). (Id. ¶ 10.) On the charge form, Guisbert checked the boxes next to age, race, and retaliation, and alleged:

I was hired by the above-named employer in July 1983, as a Building Engineer. In September 2018, I was accused of violating a company policy. On September 11, 2018, my employment was terminated. The Facilities Manager stated that I was allowed to resign in lieu of termination, however I did not resign. I am also aware of a black male that was accused of sleeping on the job and the individual was not terminated. I believe that my employment was terminated based on my race, age (60), and retaliation for participation in a protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in employment Act of 1967, as amended.

(EEOC Charge at 1.)

On September 20, 2019, after receiving a right to sue letter dated June 27, 2019, Guisbert filed this lawsuit. (Am. Compl. ¶ 11.) He alleges discrimination based on age (Counts I and III) and race (Counts II and IV), and age-based retaliation (Counts V and VI), in violation of the ADEA, 29 U.S.C. §§ 621 et seq., Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and the DCHRA, D.C. Code §§ 2-1401 et seq. (Am. Compl.) Events DC moves to dismiss the age-based retaliation claims (Counts V and VI) for failure to state a claim. (Mot. to Dismiss.)

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court does not assess the truth of what is asserted nor "whether a plaintiff has any evidence to back up what is in the complaint." Id. (citation omitted). "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 and citation omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level" and move plaintiff's claims "across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 570 (2007). Facts that are "merely consistent" with a defendant's liability do not meet the plausibility standard. Iqbal, 556 U.S. at 678 (citation omitted).

"Courts in this Circuit 'have consistently recognized the ease with which a plaintiff claiming employment discrimination can survive . . . a motion to dismiss.'" McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting Fennell v. AARP, 770 F. Supp. 2d 118, 127 (D.D.C. 2011)). A plaintiff need not "plead every fact necessary to establish a prima facie case to survive a motion to dismiss." Jones v. Air Line Pilots Ass'n, Int'l, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (citation omitted); see also Farrar v. Wilkie, No. 18-cv-1585, 2019 WL 3037869, at *2 (D.D.C. July 11, 2019) (emphasizing low bar to overcome motion to dismiss on discrimination claim (citing Gordon v. U.S. Capitol Police, 778 F.3d 158, 161-62 (D.C. Cir. 2015))). Nonetheless, a plaintiff must allege sufficient facts "about 'what . . . [,] who . . . [,] and how' that make such a claim plausible." Farrar, 2019 WL 3037869, at *2 (quoting Arnold v. Speer, 251 F. Supp. 3d 269, 273 (D.D.C. 2017) (brackets and ellipses in original); see also Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (explaining that, while a plaintiff need not plead a prima facie case on a motion to dismiss, a plaintiff who does so necessarily also alleges sufficient facts to state a plausible claim for relief).

The court presumes the truth of a plaintiff's factual allegations, see Iqbal, 556 U.S. at 679, and construes the complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). This presumption does not apply, however, to a "legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678; see also Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014) (declining to "accept as true . . . the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged").

III. ANALYSIS

Events DC argues that Guisbert's age-based retaliation claims fail because he has not alleged a causal connection between his alleged protected activity and his termination. (ECF No. 11-1, Def. Br., at 7-9.) It also argues that Guisbert failed to exhaust his administrative remedies before bringing his claim under the ADEA and that his DCHRA claim is time barred. (Id. at 9-12.)

A. Stating a Claim (Counts V & VI)

To state a claim of age-based retaliation under either the ADEA or the DCHRA, plaintiffs must allege that they engaged in a statutorily protected activity, that their employer treated them adversely, and that a causal connection existed between the two. Winston v. Clough, 712 F. Supp. 2d 1, 11 (D.D.C. 2010) (citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)); see also Murphy v. District of Columbia, 390 F. Supp. 3d 59, 72 (D.D.C. 2019) (analyzing DCHRA retaliation claims under same legal framework as federal retaliation claims). Temporal proximity can support an inference of causation, "but only where the two events are very close in time." Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (internal quotation marks omitted). However, "[t]emporal proximity is not required to state a retaliation claim, as it 'neither demonstrates causality conclusively, nor eliminates it conclusively.'" Bartlette v. Hyatt Regency, 208 F. Supp. 3d 311, 323 (D.D.C. 2016) (quoting Bryant v. Pepco, 730 F. Supp. 2d 25, 32 (D.D.C. 2010)). On a motion to dismiss, it is sufficient for plaintiffs to "plead causation simply by alleging that the adverse actions were caused by [their] protected activity." Bartlette, 208 F. Supp. 3d at 323 (internal quotation marks and citation omitted); see also Menoken v. McGettigan, 273 F. Supp. 3d 188, 202 (D.D.C. 2017) (holding that plaintiff stated a retaliation claim without pleading temporal proximity).

Events DC argues that Guisbert fails to state a retaliation claim under both the ADEA and DCHRA because he does not allege that he engaged in protected activity. (Def. Br. at 7.) In his original complaint, Guisbert alleged that he engaged in protected activity on four separate occasions in 2018 when he spoke to the Manager of Engineering, Najib Mohammed about Guisbert's demotion and the less favorable treatment of older workers. (ECF No. 1, Compl. ¶ 24.) In his Amended Complaint, he alleges that he reported age-based discrimination on six separate occasions in 2018: to Mohammed early in the year; in June to his immediate supervisor, Eric Sidberry; in July to another supervisor, Frances Tarpley; at a July meeting with managers Hootan Kaboli, Monica Bullock, and Mitsy Oratokhai; and again to Mohammed twice in mid-to-late August. (Am. Compl. ¶¶ 24-28.)

Events DC contends the court should disregard Guisbert's new allegations of protected activity (see Am. Compl. ¶¶ 24-28), which paint a clearer temporal picture, because they contradict the allegations made in both the original complaint (see Compl. ¶ 24) and the EEOC charge. (Def. Br. at 8-9). While plaintiffs "may not plead facts in their amended complaint that contradict those in their original complaint . . . reconcilable small variations between the complaints are acceptable." Hourani v. Mirtchev, 943 F. Supp. 2d 159, 171 (D.D.C. 2013) (internal quotation marks omitted), aff'd, 796 F.3d 1 (D.C. Cir. 2015). Although Guisbert's new allegations expand on those in his original complaint, they do not contradict them. See, e.g., Golden v. Mgmt. & Training...