Mulkerin v. Bunch

MEGHAN MULKERIN, Plaintiff, v. LONNIE G. BUNCH III, Secretary, Smithsonian Institution, Defendant.

Civil Action No. 1:19-cv-03850 (CJN)

United States District Court, District of Columbia

August 25, 2021

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge.

Meghan Mulkerin worked as a web-content writer at the Smithsonian Institution for approximately four months. See generally Compl., ECF No. 1. She claims that her former employer violated Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., and the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k). See generally Compl. The Smithsonian moves to dismiss for failure to timely serve the Complaint and for failure to state a claim. See generally Def.'s Mem. in Supp. of Mot. to Dismiss Pl.'s Compl. (“Def s Mot.”), ECF No. 12-1. The Court grants the Motion for reasons that follow.

I. Background

In April 2016, the Smithsonian National Zoo's Office of Communications hired Mulkerin as a “Web Content Writer” to assist with the launch of the Zoo's new website. Compl. ¶¶ 1, 3, 13. When she interviewed for the job, Mulkerin informed her future supervisors (Amy Enchelmeyer and Pamela Baker-Masson) that she had an eight-month-old baby and would require breaks to pump breastmilk throughout the workday. Id. ¶¶ 11, 19. Once Mulkerin accepted the offer of employment Enchelmeyer and Baker-Masson permitted Mulkerin to take four half-hour pumping sessions per day. Id. ¶ 18, 19. Her request to telework from home on Wednesdays was also granted, id. ¶ 33, making Mulkerin the only full-time employee in the Office of Communications permitted to telework on a regular basis, id. ¶ 34; Report of Investigation (“ROI”), ECF No. 12-1, Ex. A at 327.^[1]

A few months later, Mulkerin sought a scheduling accommodation to take her nephew to and from summer camp. Compl. ¶ 35. Enchelmeyer denied the request because “she could not accommodate any of [Mulkerin's proposed accommodations].” Id. ¶ 36. Mulkerin then called the Smithsonian ombudsperson for assistance with obtaining a scheduling accommodation. Id. ¶ 37. The next day, Mulkerin emailed Enchelmeyer to state that she would leave at 4:00 p.m. in the afternoon to pick up her nephew. Id. ¶ 38. Mulkerin alleges that, over the course of the next month, her supervisors assigned her “more work than could reasonably be completed.” Id. ¶ 40. A termination letter, Mulkerin claims, followed close behind the additional workload. Id. ¶ 41.

Mulkerin filed a complaint with the EEOC, which issued a right to sue letter on October 1, 2019. Id. ¶¶ 2, 5. She initiated this suit on December 30, 2019. See generally Id. On April 1, 2020, the Court ordered Mulkerin to demonstrate why she had not effected service of process on Defendant David Skorton.^[2] See generally Order to Show Cause, ECF No. 3. Mulkerin responded by seeking an extension for the deadline to effect service of process. See generally Resp. to Court Order, ECF No. 4. The Court granted her request and required Mulkerin to effect service of process by May 18, 2020. Min Order of Apr. 16, 2020. The Smithsonian now moves to dismiss for failure to timely serve and failure to state a claim. See generally Def s Mot.

II. Legal Standard

“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the Court accepts as true all well-pleaded facts in the complaint, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a complaint . . . does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause will not do.” Id. at 554-55. The claim to relief must be “plausible on its face, ” enough to “nudge [the] claims across the line from conceivable to plausible.” Id. at 570. When evaluating the plausibility of a claim, the Court need not ignore an “obvious alternative explanation, ” id. at 567, for the alleged injury: “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted).

III. Analysis

A. Defendant's Motion to Dismiss for Failure to State a Claim^[3]

1. Discrimination Claim

Section 703(a)(1) of Title VII makes it an “unlawful employment practice” to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).^[4] To state a prima facie claim for unlawful discrimination, a plaintiff must show that (1) she falls within a protected category, (2) she suffered an adverse employment action, (3) and the unfavorable action gives rise to an inference of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006). While “the burden of showing a prima facie case at the pleading stage is not onerous, ” Easaw v. Newport, 253 F.Supp.3d 22, 26 (D.D.C. 2017) (internal quotation omitted), a plaintiff must state a “plausible” claim to relief, Twombly, 550 U.S. at 570, and allege sufficient facts to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014) (quoting Iqbal, 556 U.S. at 678)).

Mulkerin alleges that she suffered an adverse employment action because her supervisors denied her the opportunity to pump breastmilk during work hours despite awareness of Mulkerin's need to do so. Compl. ¶ 44. But the facts alleged in Mulkerin's complaint demonstrate that the opposite occurred. According to Mulkerin, she informed her female supervisors during the interview process that she would “require pumping breaks throughout the workday.” Id. ¶ 11. Her supervisors extended an offer “knowing her pumping needs.” Id. ¶ 12. On most workdays, Mulkerin pumped four times daily, “with each pumping session lasting 20-30 minutes.” Id. ¶ 18. Mulkerin's supervisors even permitted her to excuse herself from meetings to pump. Id. ¶ 25. On one day in June, Mulkerin emailed Enchelmeyer informing her that she had trouble producing an adequate volume of milk. Id. ¶ 20. Enchelmeyer stated in response that: “I'm sorry ☹. Take all the time you need to pump.” Id.; see Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S.Ct. 2038, 2043 (2021) (“The [email] contained [a frowny] face emoji.”). The Complaint is devoid of any allegation that Mulkerin's supervisors limited her ability to take pumping breaks. See Pl.'s Opp'n to Def.'s Mot. to Dimiss Pl.'s Compl., ECF No. 13 at 6 (conceding that Mulkerin “was permitted to pump breast milk during work hours”). Rather, Mulkerin alleges that her female supervisors consistently granted her requests to take pumping breaks, and that they never interfered with those breaks. As Mulkerin has failed to allege even a single instance when her supervisors denied her the opportunity to pump breastmilk, this claim cannot survive the motion to dismiss.

Mulkerin attempts to resuscitate her claim by arguing that her supervisors perceived her work as lacking because of bias toward mothers, and that they took adverse action against her based on that bias. See Id. But again the Complaint is devoid of any allegation establishing direct or indirect discrimination, including a comparator from which an inference of discrimination could be drawn. Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999).^[5]

At bottom, Mulkerin has failed to state a prima facie claim for unlawful discrimination under Title VII because she failed to allege facts giving rise to an inference that any adverse action taken against her was the result of unlawful discrimination.

2. Retaliation Claim

A Title VII provision separate from the discrimination provision provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation under that provision, a plaintiff must show that (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) a causal link connects the two. Taylor v. Small, 350 F.3d 1286 1292 (D.C. Cir. 2003). To engage in protected activity, the employee must either participate in a Title VII proceeding or oppose an employer's discriminatory action. See Wang v. Washington Metro. Area Transit Auth., 206 F.Supp.3d 46, 77 (D.D.C. 2016) (“The ‘participation clause,' on the other hand, protects an employee's actions in relation to ‘official' or ‘legal' Title VII proceedings.”); see Id. at 76 (“The ‘opposition clause' protects a broad range of informal actions or statements that employees make in resistance to actions they reasonably perceive to be discriminatory.”); Khatri v. Bd. of Trustees of Univ. of D.C., No. CV 19-2644 (RBW), 2021 WL 2403087, at *5 (D.D.C. June 11, 2021). To suffer an adverse action under the retaliation provision, the action need not be employment-related, but it must be an action that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). To establish the requisite causal...