UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DOUGLAS JONES, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-814 (EGS)
)
OTTENBERG’S BAKERS, INC., )
ET AL. )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
Plaintiff Douglas Jones brings this action alleging racial
discrimination in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., against
Ottenberg’s Bakers (“Ottenberg’s”) and its president, Ray
Ottenberg. Plaintiff initially brought this lawsuit in the
Superior Court for the District of Columbia. On May 31, 2013,
the defendants removed the case to this Court pursuant to 28
U.S.C. § 1441. Pending before the Court is defendants’ motion to
dismiss. Upon consideration of the motion, the response and
reply thereto, the applicable law, and the entire record, the
Court GRANTS IN PART AND DENIES IN PART defendants’ motion.
I. BACKGROUND
Plaintiff, an African-American male, was employed by
defendants as a delivery driver for twelve years. First Amended
Compl. ¶¶ 4, 7.1 His complaint centers on the events of July 11,
2008, when his parked delivery truck was hit from behind by
another vehicle, throwing him to the floor of the truck and
injuring him. Id. ¶¶ 9-10. After the accident, Mr. Jones
returned to the defendants’ bakery, where he was ordered to take
a drug test pursuant to a company policy which mandates that
employees who were “involved in an accident and may have
caused/contributed to the accident” take a drug test. Id. ¶¶ 11,
12. Mr. Jones alleges that he “did not in any way cause or
contribute to the accident, as his vehicle was legally parked
and he was inside the truck, in the back, preparing for his next
delivery.” Id. ¶ 13. Accordingly, Mr. Jones alleges that
defendants violated their own policy by ordering that he take a
drug test. Id. ¶ 23. Plaintiff was ultimately terminated from
employment for failing to take the drug test. Id. ¶¶ 14, 24.
Mr. Jones alleges that the defendants’ decisions to
“instruct Plaintiff to take a drug test,” and “terminate
Plaintiff’s employment” for failing to do so, were racially
motivated. Id. ¶¶ 28-30. He also alleges that “Caucasian drivers
who had been involved in accidents” were treated differently.
Id. ¶ 15; see also id. ¶ 19.
1
Citations to “First Amended Compl.” refer to plaintiff’s
amended complaint. Dkt. No. 1-1 at 3-9. Citations to “Compl.”
refer to plaintiff’s initial complaint. Dkt. No. 1-1 at 102-07.
2
On July 22, 2008, Mr. Jones filed a formal complaint of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”), alleging that Ottenberg’s discriminated against him
based on his race, national origin, and age, and that
Ottenberg’s retaliated against him for engaging in protected
activity. Pl.’s EEOC Compl., Dkt. No. 1-1 at 45. Plaintiff
supplemented his EEOC complaint on September 4, 2008. See Pl.’s
Amended EEOC Compl., Dkt. No. 1-1 at 48-60.
The EEOC referred Mr. Jones’s complaint to the District of
Columbia Office of Human Rights. On August 8, 2012, that office
found no probable cause to support plaintiff’s claims. See
Letter of Determination, Dkt. No. 1-1 at 77. The EEOC adopted
that determination on November 26, 2012 and issued a Dismissal
and Notice of Rights, which informed Mr. Jones of the relevant
deadlines for filing a civil action:
You may file a lawsuit against the respondent(s) under
federal law based on this charge in federal or state court.
Your lawsuit must be filed WITHIN 90 DAYS of your receipt
of this notice; or your right to sue based on this charge
will be lost.
EEOC Notice, Dkt. No. 1-1 at 27 (emphasis in original).
The record does not reflect when Mr. Jones received the
Notice, but on January 17, 2013, 52 days after the EEOC issued
it, he filed this lawsuit in the Superior Court for the District
of Columbia, asserting that defendants terminated him because of
his race in violation of the District of Columbia Human Rights
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Act. Compl. ¶¶ 1, 17-32. Defendants moved to dismiss that
complaint on March 29, 2013. Defs.’ Mot. to Dismiss Initial
Compl., Dkt. No. 1-1 at 30-33. In opposing that motion,
plaintiff argued that the complaint pled “a cause of action
under Title VII” but that “Plaintiff’s counsel only cited to the
D.C. Human Rights Act.” Pl.’s Opp. to Defs.’ Mot. to Dismiss
Initial Compl., Dkt. No. 1-1, at 18. The Superior Court
permitted plaintiff to amend his complaint. Order, Dkt. No. 1-1
at 11-12.
On May 9, 2013, 164 days after the EEOC issued its Notice,
plaintiff filed his First Amended Complaint, which is identical
to his initial complaint, except that all references to the D.C.
Human Rights Act were replaced with references to Title VII.
Compare Compl., with First Amended Compl. On May 31, 2013,
defendants removed the case to this Court pursuant to 28 U.S.C.
§ 1441. Defendants moved to dismiss on June 6, 2013. That motion
is ripe for the Court’s decision.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
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upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quotation marks omitted; alteration in original).
While detailed factual allegations are not necessary, plaintiff
must plead enough facts “to raise a right to relief above the
speculative level.” Id.
When ruling on a Rule 12(b)(6) motion, the court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).2
The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
2
In their briefs, the parties refer to four documents that were
neither attached to nor referenced in the plaintiff’s complaint,
but were transmitted to this Court as part of the Superior Court
record. See Defs.’ Mem. in Supp. of Mot. to Dismiss First
Amended Compl. (“Mem.”), Dkt. No. 4-1 at 1-4; Pl.’s Opp. to Mot.
to Dismiss First Amended Compl. (“Opp.”), Dkt. No. 5 at 2-3.
Defendants ask the Court to consider these documents without
converting the motion into one for summary judgment. See Mem. at
2 n.2. The Court will consider plaintiff’s EEOC Complaint,
plaintiff’s Amended EEOC Complaint, the August 8, 2012 Letter of
Determination, and the November 26, 2012 EEOC Notice in
evaluating the timeliness of plaintiff’s claims, which it may do
without converting the motion into one for summary judgment.
See, e.g., Burkes v. Holder, __ F. Supp. 2d __, 2013 WL 3685016,
at *3 n.3 (D.D.C. July 15, 2013); Ward v. D.C. Dep’t of Youth
Rehab. Servs., 768 F. Supp. 2d 117, 119 & n.2 (D.D.C. 2011). The
Court declines to consider these documents in evaluating
defendants’ other arguments.
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must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.” Id. “Nor must the court
accept legal conclusions cast in the form of factual
allegations.” Id. “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
III. ANALYSIS
Defendants raise three arguments in their motion to
dismiss: (1) that plaintiff’s Title VII claim was not timely
filed, (2) that plaintiff fails to state a claim against Ray
Ottenberg, and (3) that plaintiff fails to state a Title VII
discrimination claim.3 The Court addresses each argument in turn.
A. Plaintiff’s Complaint Was Timely Filed.
Upon receiving the November 26, 2012 EEOC Notice, plaintiff
had 90 days within which to file a civil action to challenge the
EEOC decision. See 42 U.S.C. § 2000e-5(f)(1) (employees must
file a civil action “within 90 days after the giving of such
notice [of final action]”). When, as here, the record does not
reflect when the notice was received, courts generally assume
3
Defendants state in a footnote that “[t]here is also an issue
of defective service of process in this case. Although the
process server’s affidavit states that he served the original
summons and complaint on Ray Ottenberg on February 6, 2013, Mr.
Ottenberg was not personally served.” Mem. at 3 n.3. Because
defendants provide no citation or support for this argument, the
Court declines to consider it. See Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (“We need not
consider cursory arguments made only in a footnote.”).
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that it was received either three or five business days after it
was issued. See Ruiz v. Vilsack, 763 F. Supp. 2d 168, 171
(D.D.C. 2011). It is irrelevant which presumption the Court
applies here. Plaintiff’s initial complaint was filed well
within the deadline on January 17, 2013. Plaintiff’s amended
complaint, which raised his Title VII claim for the first time,
was filed well outside the deadline on May 9, 2013. Accordingly,
if plaintiff’s claim is measured with respect to the initial
complaint, it is timely; if not, it is untimely.
Plaintiff argues that his Title VII claim relates back to
the date on which the initial complaint was filed because the
amended complaint alleged identical facts and merely “add[ed]
the appropriate citations to Title VII.” Opp. at 6. Defendants
contend that plaintiff’s amended complaint “inserted a
completely new federal claim, effectively filing a new complaint
under the guise of an amendment.” Defs.’ Reply (“Reply”), Dkt.
No. 6 at 1. The Court agrees with the plaintiff.
Under Federal Rule of Civil Procedure 15(c), an amended
pleading “relates back to the date of the original pleading when
. . . the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading.” In this Circuit, claims
added to amended complaints are not permitted to relate back to
initial complaints if such claims “attempt[] to introduce a new
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legal theory based on facts different from those underlying the
timely claims.” United States v. Hicks, 283 F.3d 380, 388 (D.C.
Cir. 2002); see also Caudle v. Thomason, 942 F. Supp. 635, 641-
42 (D.D.C. 1996) (rejecting relation back of amended complaint
seeking damages for slander, when the original complaint sought
damages only for libel and made no reference to slanderous
remarks by an individual implicated in the amended complaint).
Where an amended complaint is logically related to, and
seeks recovery for, the same acts alleged in the initial
complaint, however, this Court permits the later complaint to
relate back to the earlier. See, e.g., Palmer v. Homecomings
Fin. LLC, 677 F. Supp. 2d 233, 240 (D.D.C. 2010) (claim that
lender discriminated against plaintiff during loan refinancing
related back to earlier claims that lender otherwise mistreated
plaintiff in connection with the refinancing because plaintiff
“essentially ascribed a different motive to the same set of
facts”); Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner,
949 F. Supp. 13, 16-18 (D.D.C. 1996) (employee’s poorly drafted
amended complaint related back to earlier timely filed complaint
because it sought recovery for the same alleged acts of
employment discrimination set forth in the earlier complaint).
Ultimately, “[t]he underlying question is whether the original
complaint adequately notified the defendants of the basis for
8
liability the plaintiff[] would later advance.” Meijer, Inc. v.
Biovail Corp., 533 F.3d 857, 866 (D.C. Cir. 2008).
Plaintiff’s claim that his employer’s decision to fire him
for refusing to take a drug test violated Title VII is all but
identical to his initial claim that the same decision violated
the D.C. Human Rights Act. Both are based on identical factual
allegations: that plaintiff was fired for refusing to take a
drug test after an accident for which he was not at fault and
that Caucasian drivers involved in accidents were treated
differently. See Compl. ¶¶ 1-16; First Amended Compl. ¶¶ 1-16.
Both claims allege the same legal wrong: that these decisions
were racially discriminatory. See Compl. ¶¶ 17-32; First Amended
Compl. ¶¶ 17-32. At a minimum, the initial complaint “notified
the defendants of the basis for liability” raised in plaintiff’s
amended complaint. Meijer, 533 F.3d at 866. Compare Jones v.
Bernanke, 557 F.3d 670, 675 (D.C. Cir. 2009) (declining relation
back where the “original complaint nowhere even mention[ed] . .
. the factual basis for [plaintiff’s] discrimination claims”).
Defendants argue that plaintiff “effectively fil[ed] a new
complaint under the guise of an amendment,” Reply at 1, but this
argument relies on cases wherein courts declined to relate an
amended complaint back to the date on which an entirely
different lawsuit was filed. See Neverson v. Bissonnette, 261
F.3d 120, 126 (1st Cir. 2001); Stewart-Veal v. District of
9
Columbia, 896 A.2d 232, 237 (D.C. 2006). Contrary to defendants’
argument, plaintiff may substitute one legal argument for
another within the same lawsuit. “The fact that an amendment
changes the legal theory on which the action initially was
brought is of no consequence if the factual situation . . .
remains the same.” Charles Allen Wright, et al., Federal
Practice & Procedure § 1497 (3d ed. 2013); see also Mayle v.
Felix, 545 U.S. 644, 660 (2005) (relation back is appropriate
where new legal theory addresses the same “episode-in-suit”).
Plaintiff’s Title VII claim reflects the application of a nearly
identical legal theory to identical facts, and thus relates back
to January 17, 2013, the date on which the initial complaint was
filed. Accordingly, plaintiff’s Title VII claims were timely
filed and defendants’ request to dismiss plaintiff’s complaint
as time-barred is denied.
B. Plaintiff Fails to State a Claim Against Ray Ottenberg.
In addition to Ottenberg’s, Mr. Jones has also sued Ray
Ottenberg. Mr. Ottenberg is mentioned in the complaint only
once, in paragraph 6, which alleges that he “at all times
relevant hereto is [sic] the president of Defendant Ottenberg’s
and acted as an agent of the employer” and asserts that he “is
sued both in his official capacity and personally for any
actions taken outside of the scope of his agency.” First Amended
Compl. ¶ 6. Defendants argue that plaintiff’s claims against Mr.
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Ottenberg should be dismissed because the official-capacity
claim is duplicative of the claim against Ottenberg’s, and
plaintiff alleged no facts to support the individual-capacity
claim. See Mem. at 8; Reply at 4-5. The Court agrees.
Plaintiff correctly concedes that “Title VII claims brought
against corporate officers in their ‘official capacity’ are
dismissed as redundant.” Opp. at 8. Indeed, Mr. Ottenberg “must
be viewed as being sued in his capacity as the agent of the
employer, who is alone liable for a violation of Title VII.”
Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995). Thus, a Title
VII claim against Mr. Ottenberg “essentially merges with [a]
claim against [the employer].” Id.; see also Cooke-Seals v.
District of Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997)
(“[b]ecause an official capacity suit against an individual is
the functional equivalent of a suit against the employer,
plaintiff’s claims against the officers are redundant and an
inefficient use of judicial resources”).
Plaintiff’s claim against Mr. Ottenberg as an individual
also must be dismissed because plaintiff did not allege any
facts to support it. The amended complaint describes Mr.
Ottenberg only as “an agent of the employer.” First Amended
Compl. ¶ 6. But “Title VII does not impose individual liability
on supervisory employees.” Gary, 59 F.3d at 1400; see also Craig
v. District of Columbia, 881 F. Supp. 2d 26, 36 (D.D.C. 2012)
11
(“Individuals may not be held liable under Title VII”). Mr.
Jones argues that “[w]ithout the benefit of Discovery, the
Plaintiff cannot say that Mr. Ottenberg, as an individual, does
not meet the definition of ‘employer’ under [Title VII].” Opp.
at 8. This speculation, however, is belied by the assertion in
plaintiff’s complaint that, “at all times relevant hereto,” Mr.
Ottenberg served “as an agent of the employer.” First Amended
Compl. ¶ 4. If Mr. Jones wished to sue Mr. Ottenberg as an
“employer,” he should have pled as much in his complaint. For
these reasons, plaintiff’s claims against Ray Ottenberg are
dismissed.
C. Plaintiff States a Claim Against Ottenberg’s Bakery.
To bring an actionable discrimination claim under Title
VII, Mr. Jones must establish that “(1) [he] is a member of a
protected class, (2) [he] suffered an adverse employment action,
and (3) the unfavorable action gives rise to an inference of
discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.
2002) (quotation marks omitted); see also Nguyen v. Mabus, 895
F. Supp. 2d 158, 174 (D.D.C. 2012). Although it is well-
established that “‘an employment discrimination plaintiff is not
required to plead every fact necessary to establish a prima
facie case to survive a motion to dismiss,’” Rodriguez v.
Donovan, 922 F. Supp. 2d 11, 17 (D.D.C. 2013) (quoting Jones v.
Air Line Pilots Ass’n, 642 F.3d 1100, 1104 (D.C. Cir. 2011), a
12
plaintiff must nevertheless “plead sufficient facts to show a
plausible entitlement to relief.” Id.
It is undisputed that plaintiff’s complaint alleges the
first two elements of a prima facie case by asserting that he
“is an African American,” and that he was “terminated . . .
[from employment] for failure to submit to a drug test.” First
Amended Compl. ¶¶ 4, 14. Defendants contend that Mr. Jones has
not alleged facts that give rise to an inference of
discrimination and has instead stated only legal conclusions.
See Mem. at 7; Reply at 3-4. Plaintiff argues that his complaint
sets forth sufficient facts by alleging that he “was ordered to
take a drug test, after being injured in an accident which he
did not cause or contribute to, in contravention of the
Defendant’s own policies, where similarly situated Caucasian
drivers were not.” Opp. at 6. The Court agrees with the
plaintiff.
Plaintiff’s complaint, though sometimes barebones,
describes the events leading to his termination with sufficient
factual particularity. It alleges, and the Court must accept as
true, that Ottenberg’s drug-test policy applies only when an
employee “may have caused/contributed to the accident.” First
Amended Compl. ¶ 12. Plaintiff asserts that Ottenberg’s deviated
from this policy by requiring him to take a drug test when he
could not have been at fault in the July 11, 2008 accident. Id.
13
¶¶ 11-13, 23. Mr. Jones further alleges that this deviation from
standard procedure was motivated by race, id. ¶¶ 28-30, and that
“Caucasian drivers who had been involved in accidents” were
treated differently. Id. ¶¶ 15, 19. If proven, these allegations
could support an inference of discrimination. Indeed,
“deviations from standard procedures” may even “give rise to an
inference of pretext” at the summary-judgment stage. Harrington
v. Aggregate Indus. N.E. Region, 668 F.3d 25, 33 (1st Cir.
2012); see also Hurlbert v. St. Mary’s Health Care Sys., 439
F.3d 1286, 1299 (11th Cir. 2006) (“an employer’s deviation from
its own standard procedures may serve as evidence of pretext”).
Similarly, an allegedly racially motivated deviation from
standard procedure may raise an inference of discrimination at
the motion-to-dismiss stage.
At this stage of the proceedings, plaintiff need only
allege facts sufficient to state “a plausible claim for relief.”
Iqbal, 556 U.S. at 679. Plaintiff provided sufficient factual
detail by alleging that Ottenberg’s deviated from its policy by
requiring him to take a drug test and terminating him for
failing to do so, that this deviation was motivated by Mr.
Jones’s race, and that Caucasian drivers involved in accidents
were treated differently. Accordingly, defendants’ motion to
dismiss plaintiff’s claim against Ottenberg’s is denied.
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IV. CONCLUSION
For the foregoing reasons, defendants’ Motion to Dismiss
plaintiff’s complaint is hereby GRANTED IN PART AND DENIED IN
PART. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
November 21, 2013
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