Stanton v. Potomac Elec. Power Co.

EDMOND STANTON et al., Plaintiffs, v. POTOMAC ELECTRIC POWER COMPANY, Defendant.

No. 20-cv-02464 (CRC)

United States District Court, District of Columbia

September 15, 2021

MEMORANDUM OPINION

CHRISTOPHER R. COOPER United States District Judge

Plaintiffs Edmond Stanton, Booker Tolbert, and Carnell Veney allege that their employer, Potomac Electric Power Company (“Pepco”), has discriminated against them based on their race and retaliated against them for filing complaints about racial discrimination. They bring several claims under federal law and the District of Columbia Human Rights Act (“DCHRA”). Pepco moved to dismiss the complaint, and, rather than offer a substantive response sought leave to amend the complaint. The proposed amended complaint (“PAC”) would, among other things replace Plaintiffs' multiple causes of action under Title VII with a single cause of action under 42 U.S.C. § 1981. Previously, the Court partially dismissed Plaintiffs' complaint as to certain claims under the DCHRA, barring them from repleading those claims in an amended complaint. Currently pending before the Court is Plaintiffs' motion for leave to amend, specifically the Section 1981 and few remaining DCHRA claims. The Court will grant leave to amend in part and deny it in part; the remainder of Pepco's motion to dismiss—i.e., as to the claims not addressed in the Court's June 22, 2021 Minute Order—is thus denied as moot.

Accordingly the Court will allow Plaintiffs to file an amended complaint consistent with this opinion and the prior Minute Order. As detailed in this opinion, the Court will grant Plaintiffs' motion for leave to amend as to the following claims, as identified by the following numbers in the Second Revised Table of Claims, ECF No.19-1: 3, 5, 7, 8, 20, 23, 25, 26, 35, 36, 38, 39, 41.

I. Background

A. Plaintiffs' Allegations in the Proposed Amended Complaint

This is an employment discrimination case brought by three Plaintiffs who work for Pepco, an electric utility company in the District. Edmond Stanton is a “Test Specialist” and has worked at Pepco (or its parent company, Exelon) since 2007. PAC ¶ 4. Carnell Veney is a “Relay Tech” and has also worked at the company since 2007. Id. ¶ 6. And Booker Tolbert is a Test Specialist and “the most senior employee” in that department—not surprising, given that he began his employment with Pepco in 1984. Id. ¶¶ 5, 138. All Plaintiffs are African-American men. Id. ¶¶ 4-6.

Plaintiffs allege various instances of racial discrimination and retaliation by Pepco, their supervisors, and coworkers. In a “table of claims, ” Pepco broke the complaint down into 43 distinct claims, see ECF No. 6-2, which may more accurately be described as categories of allegations, or events, relevant to particular counts in the complaint. Both sides refer to this numbering convention, as did the Court in its prior order, so it will continue to do so.

Each Plaintiff's allegations as to his individual claims will be assessed in greater detail, but there are common threads that require some initial background. First, Plaintiffs generally allege a racist working environment. For example, they allege that white employees “casual[ly]” use racial slurs “without facing discipline, ” PAC ¶ 39, and at least Stanton offers specific examples of being called a “coon” by one supervisor and another supervisor saying “n[*****]” directly to him. Id. ¶¶ 70, 79-80; but see id. ¶ 36 (alleging all “Plaintiffs” have been subjected to these slurs). They also allege that a “noose was found hanging in the workplace, an incident that [was] never investigated[.]” Id. ¶ 36.

Second, Plaintiffs raise claims related to Pepco's “sign-on” program (sometimes called “sign-offs”), and relatedly, claims of denied promotions. The sign-on program requires employees in the position of relay tester to “rely on supervisors and managers to provide specific assignments where they can demonstrate their skill as relay testers.” PAC ¶ 22. Sign-on approvals are important, Plaintiffs insist, because “a relay tester's demonstration of increasingly difficult skills leads to promotions and pay increases.” Id.; id. ¶ 23 (alleging employees “must get a manager or supervisor to sign off on specific assignments to qualify for promotion”). Without enough assignments, an “employee is precluded from promotion[.]” Id. ¶ 23. Plaintiffs claim that this system discriminates against them, and African-American employees generally, because supervisors routinely approve sign-ons for white employees but not for African Americans, hindering their prospects for promotion.

Third, Plaintiffs allege that they were not assigned company vehicles, and that receiving a vehicle assignment impacts compensation. Employees with such assignments, Plaintiffs say, get “paid from the time they enter the truck at their home . . ., until the time they park the truck back at their home after the end of their shift.” PAC ¶ 28. By contrast, employees without company vehicles “are paid from the time they report to their duty assignment until the end of the workday, ” but not for commute time. Id. Plaintiffs allege that Pepco discriminates against African Americans in how it provides company vehicle assignments, though, as will be explained, their individual claims on this issue differ.

Plaintiffs' other claims range from being denied promotions and receiving fewer overtime hours and less pay because of their race, to allegations related to the type of work they are assigned. For instance, Plaintiffs generally allege that white employees “are favored for long-term job assignments, as opposed to day-to-day assignments” given to “black relay testers like Plaintiffs[.]” PAC ¶ 12; id. ¶ 13 (alleging long-term assignments have “exceedingly preferable working conditions and professional treatment” and provide “a degree of predictability and peace of mind”). Relatedly, Plaintiffs assert that employees without long-term assignments, like them, often work “storm duty, ” which “comes with obvious physical hazards” and “working long days[.]” Id. ¶ 14-15.

Plaintiffs' PAC advanced four counts. But, as the case has proceeded, Plaintiffs' claims have been significantly winnowed down. In brief, what remains at play are claims under: (1) Count I (DCHRA race discrimination) as to Plaintiffs Stanton and Veney; (2) Count II (federal Section 1981 race discrimination) as to all Plaintiffs; and (3) Count IV (DCHRA retaliation) as to all Plaintiffs.

B. Procedural History

Plaintiffs originally filed this case in D.C. Superior Court in July 2020 and served Defendants Pepco and its parent, Exelon Corporation, on August 4, 2020. The original complaint alleged claims for race discrimination, hostile work environment, and retaliation under both Title VII and the DCHRA. See Compl. ¶¶ 107-78, ECF No. 1-1. Defendants timely removed the case to this Court, see Notice of Removal, ECF No. 1, and then Exelon was dismissed as a defendant. See Stipulation of Dismissal, ECF No. 5. Shortly after that, Pepco moved to dismiss, arguing that certain claims were not properly exhausted, untimely, preempted, or barred because Plaintiffs elected administrative remedies, and that Plaintiffs' allegations were not plausible. See Mot. Dismiss, ECF No. 6; Table of Claims, ECF No. 6-2.

After receiving two extensions, rather than offer a substantive response to Pepco's motion to dismiss, Plaintiffs moved for leave to amend their complaint, attaching the proposed amended version. See Pls. Mot. Leave to File Am. Compl., ECF No. 12. The PAC substituted Plaintiffs' Title VII race discrimination, hostile work environment, and retaliation claims for a single federal race discrimination claim under 42 U.S.C. § 1981; the DCHRA claims remained. Plaintiffs also sought to add allegations supporting a putative class action, but they have since withdrawn that portion of the PAC. See Pls. Reply in support of Mot. Leave to File Am. Compl. (“Pls. Reply”) at 2 n.2, ECF No. 18. Pepco opposed Plaintiffs' motion for leave to amend, and Plaintiffs failed to reply (until the Court later ordered additional briefing).

After that first round of briefing, the Court dismissed a host of DCHRA claims because Plaintiffs failed, either in their brief or the PAC, to respond to Pepco's arguments that those claims were untimely, preempted, or barred by the election of administrative remedies. See 6/22/2021 Minute Order; Local Civ. R. 7(b); CD Int'l Enters., Inc. v. Rockwell Capital Partners, Inc., 251 F.Supp.3d 39, 46 (D.D.C. 2017) (party conceded issue by failing to address it in opposition brief); Fox v. District of Columbia, 851 F.Supp.2d 20, 36-37 (D.D.C. 2012) (denying leave to amend denied as to claims “which plaintiffs conceded by failing to respond to [defendant's] arguments”). That ruling entirely eliminated the DCHRA hostile work environment claims, but left a few DCHRA discrimination and retaliation claims, plus the federal claims, to be decided. The Court held Plaintiffs' motion for leave to amend in abeyance pending further briefing. See 6/22/2021 Minute Order. In accordance with the Court's order, Plaintiffs filed a reply in support of their motion to amend, and Pepco filed a surreply in opposition.

Plaintiffs' motion is finally ripe for this Court's review.

II. Legal Standards

Plaintiffs filed their amended complaint more than 21 days after Pepco filed its motion to dismiss, so they may amend the complaint only with leave of the Court. Fed.R.Civ.P. 15(a). Rule 15(a) gives courts discretion whether to grant leave to amend a complaint, but that discretion is limited; leave “should be freely given in the absence of undue delay bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility.” Richardson v. United...