Clay v. Howard University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
LINDA CLAY, )
)
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-1464 (TSC)
)
HOWARD UNIVERSITY et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiff Linda Clay asserts statutory and tort claims against her former employer and

supervisor, all related to the end of her employment in the Human Resources department at

Howard University. Defendants Howard University and James Jones moved to dismiss Clay’s

complaint, and Clay moved orally to amend the complaint at argument on the motions to dismiss

on February 11, 2015. In an order (“Order,” ECF No. 21) and accompanying opinion

(“Opinion,” ECF No. 20) dated March 11, 2015 the Court granted Plaintiff’s oral motion for

leave to amend and granted Jones’ motion to dismiss Count III of the Complaint, which alleged a

violation of the D.C. Human Rights Act (“DCHRA”) against him individually. The Court

denied without prejudice the balance of Defendants’ motions with permission to renew those

motions in response to Plaintiff’s amended complaint. Plaintiff filed an amended complaint, and

the Defendants’ renewed motions to dismiss are now before the court. Because Plaintiff has not

alleged a wrongful discharge in violation of public policy but has adequately alleged violations

of Title VII, the DCHRA, and the Equal Pay Act, the Court GRANTS Jones’ motion in full and

GRANTS IN PART and DENIES IN PART Howard’s motion.

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 I. BACKGROUND

The factual landscape of Plaintiff’s complaint is set forth in the court’s March 11 opinion.

The court here notes particular allegations which have changed from the original complaint.

Plaintiff now alleges that she “refused to ignore falsified and fraudulent documents that came

into her possession, when those documents were, and the concealment of such information

would have been, a violation of federal and D.C. law,” and cites specific statutes she believes

may have been violated. (Am. Compl. ¶¶ 4, 29-30). She now specifically alleges that she was

“concerned about her own criminal liability” as an aider and abettor of the suspected fraud if she

did not report her suspicions. (Am. Compl. ¶ 61). She notes that Howard University, through its

President and Directors, is required to furnish an annual financial report to Congress, and that

she believed the suspected fraud might impact the truthfulness of that annual report. (Am.

Compl. ¶¶ 18, 65).

The most significant defect in Plaintiff’s first complaint was the entanglement of her Title

VII and DCHRA claims with her wrongful discharge claim. (Opinion at 8). In her Amended

Complaint, Plaintiff has re-pleaded the two sets of claims to specify that they cover separate

conduct that proceeded in parallel. The wrongful discharge claim relates only to the decision to

remove Plaintiff “from her Senior Benefits Analyst position under the false pretense of a

[Reduction in Force]…and constructively demoting her to the HR Generalist position.” (Am.

Compl. ¶ 66). The gender discrimination claim brought under Title VII and the DCHRA now

purports to relate to other conduct: “Throughout her employment, Ms. Clay and other females

were held to higher standards, treated with less respect, and were promoted less quickly and

often than their male counterparts.” (Am. Compl. ¶ 71). Howard’s decision not to rehire

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Plaintiff for her former position is now alleged to be, in the alternative, gender discrimination or

retaliation for Plaintiff’s EEOC charge. (Am. Compl. ¶¶ 72, 77, 93, 96).

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a

complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “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). Although a plaintiff may survive a Rule 12(b)(6) motion

even where “recovery is very remote and unlikely[,]” the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555–56 (2007) (internal quotation marks and citation omitted). Moreover, a pleading

must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a

cause of action[.]” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as

alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon

which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry

Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013). In

testing the complaint’s sufficiency, a court may “consider only the facts alleged in the complaint,

any documents either attached to or incorporated in the complaint and matters of which [the

Court] may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621,

624 (D.C. Cir. 1997).

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 III. ANALYSIS

In addition to the substantive arguments addressed below, Defendant Jones raises two

preliminary procedural arguments. Jones first argues that the court should not consider

Plaintiff’s Amended Complaint because Plaintiff did not file a written motion for leave to

amend. (Jones Renewed Mot. at 5-7). Jones correctly notes that it would have been within the

court’s discretion to deny Plaintiff the opportunity to amend because the motion was belated and

was not made in writing. Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006); Benoit v. U.S.

Dep’t of Agriculture, 608 F.3d 17, 21 (D.C. Cir. 2010). In both of these cases the plaintiff made

only a conditional statement that amendment could cure perceived defects; in this case, Plaintiff

expressly requested “leave to amend” at oral argument. (Mot. Hr’g Tr. 60:18-61:1 Feb. 11,

2015). That the court could have ruled one way does not preclude the court from exercising its

discretion in ruling to the contrary. The distinct and precise nature of Plaintiff’s oral request for

relief distinguishes it from the instances where district judges permissibly declined to grant leave

to amend.

Jones also argues that some of the amended allegations are so inconsistent with the

original allegations that the court should not afford them the presumption of truth. (Jones

Renewed Mot. 8-10). The court does have the authority to strike obviously “false and sham”

allegations that have changed from the complaint to the amended complaint. See, e.g., Bradley

v. Chiron Corp., 136 F.3d 1317, 1324-25 (Fed. Cir. 1998) (district court did not abuse discretion

in striking allegations from amended complaint which directly contradicted allegations from

initial complaint). “Reconcilable small variations are acceptable,” but direct contradiction is not.

Hourani v. Mirtchev, 943 F. Supp. 2d 159, 171 (D.D.C. 2013). However, Jones’ argument that

the changes in Plaintiff’s amended complaint rise to the level of direct contradiction overstates

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the changes Plaintiff has made. Jones argues that “alleging a hypothetical possibility of

‘potential’ fraud is not the same now [sic] alleging that [Plaintiff] ‘knew’ there was fraud,” and

goes on to cite to particular changes in the Amended Complaint which reflect Plaintiff’s

increased certainty that there was indeed a fraud being perpetrated. (Jones Renewed Reply at

11). This change falls shy of the 180 degree change in the allegations by the Plaintiffs in

Bradley, 136 F.3d at 1325-26 (adding a new allegation in a contract dispute that plaintiff did not

receive explanation of the contract before signing it), and Hourani, 943 F. Supp. 2d at 171-72

(excising references to a defendant as a government agent) and does not fundamentally change

the nature of Plaintiff’s allegations.

Having dealt with these preliminary matters, the court proceeds to determine whether

Plaintiff’s Amended Complaint adequately states any claims for relief.

a. Count I: Wrongful Discharge in Violation of Public Policy

The tort of wrongful discharge in violation of public policy is a limited exception to the

general rule in the District of Columbia that an at-will employee may be discharged “at any time

and for any reason, or for no reason at all.” Adams v. George W. Cochran & Co., 597 A.2d 28,

30 (D.C. 1991). Though the cause of action was initially limited only to discharge for refusal to

violate the law, the D.C. Court of Appeals affirmed in Carl v. Children’s Hosp., 702 A.2d 159,

160 (D.C. 1997) that the exception was subject to further expansion. To state a claim for

wrongful discharge in violation of public policy, the plaintiff must point to “some identifiable

policy that has been ‘officially declared’ in a statute or municipal regulation, or in the

Constitution,” and a “close fit between” the policy “and the conduct at issue in the allegedly

wrongful termination.” Davis v. Cmty. Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709-

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10 (D.C. 2013) (citing Carl and Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799, 803-04

(D.C. 1999)).

The court invited Plaintiff to attempt to disentangle her claims under Title VII and the

DCHRA from her wrongful discharge claim because, as originally pled, the allegations were too

intertwined to evaluate 1) whether Plaintiff was terminated in violation of a public policy firmly

anchored in the Constitution or statute, Davis, 74 A.3d at 709-10, and 2) whether extension of

the Carl exception was appropriate given the apparent overlap with a pre-existing statutory cause

of action. Lockhart v. Coastal Int'l Sec., Inc., 5 F. Supp. 3d 101, 106 (D.D.C. 2013); Emory v.

United Air Lines, Inc., 821 F. Supp. 2d 200, 239 (D.D.C. 2011). The allegations are now

sufficiently disentangled to evaluate their sufficiency.

There is limited guidance from the D.C. Court of Appeals on whether termination in

retaliation for disclosing possible fraud states a claim for wrongful discharge. Applying Carl,

the D.C. Court of Appeals has found a valid claim for wrongful discharge in violation of public

policy where a cook at a retirement home was fired for attempting to prevent a co-worker from

contaminating food to be served in the home. Washington v. Guest Servs., Inc., 718 A.2d 1071,

1080 (D.C. 1998). Similarly, the D.C. Circuit Court agreed that a plaintiff could defeat

summary judgment on evidence that the plaintiff was terminated for threatening to report unsafe

handling and storage of pharmaceutical drugs, given the extensive regulations concerning food

and drug safety. Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir. 1999). In both of

these cases, matters of human safety were at stake, as evidenced by the comprehensive and

specific regulations governing both workplaces. The D.C. Court of Appeals has also upheld a

wrongful discharge claim where a director of security was terminated after cooperating with the

FBI and Metropolitan Police Department in reporting a bribe. Fingerhut, 738 A.2d at 806-07.

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In that case, the court relied on the existence of particular laws and regulations prohibiting

bribery and requiring police officers to actively investigate suspected illegal activity. Id.

In a fourth case, the court suggested it would find a viable claim in a former law firm

associate’s reporting of “seriously” dishonest conduct to her superiors. Wallace v. Skadden,

Arps, Slate, Meagher & Flom, 715 A.2d 873, 885 (D.C. 1998) (“If the plaintiff had alleged that

she was discharged solely, or perhaps even primarily, for reporting the alteration of ‘as filed’

documents, and for no other reason, we would have a different case”). Key to the court’s

discussion in Wallace was the fact that the applicable rules of professional conduct required the

plaintiff to report this “seriously” dishonest conduct, although the Court ultimately ruled that she

could not prevail in a wrongful discharge claim because she also reported conduct which she was

not obligated to report (and because the complaint implied there were other reasons for her

termination beyond the whistleblowing). Id. Other courts of this District have looked for the

same reporting mandate. Myers v. Alutiiq Int’l Solutions, LLC, 811 F. Supp. 2d 261, 266-67

(D.D.C. 2011) held that allegations that plaintiff was terminated after reporting improper

conflicts of interest in government contracting sufficed to state claims grounded in the public

policy of encouraging reporting of problems in federal programs. The court pointed to 5 U.S.C.

§ 2302 1 and the Federal Acquisition Regulations which “reflect[] a clear public policy of

encouraging government employees to come forward and report possible problems in federal

programs” and prohibit conflicts of interest. Id. On the other hand, in Lurie v. Mid-Atl.

Permanente Med. Grp., P.C., 729 F. Supp. 2d 304, 326 (D.D.C. 2010) the court held that the

plaintiff failed to prove a wrongful discharge claim where none of the statutes or regulations

1
5 U.S.C. § 2302(b)(8)(B) prohibits retaliation by federal employers against employees who report suspected illegal
activity.

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cited by the plaintiff both a) related to the types of disclosures he actually made and b) provided

any sort of whistleblower protection. Id.

Plaintiff correctly notes that there have been cases in which courts sustained a claim for

wrongful discharge even in the absence of a mandatory reporting requirement or narrowly

focused regulatory regime. (Pl. Renewed Howard Opp’n at 9 (collecting cases)). The plaintiff in

Vreven v. AARP, 604 F. Supp. 2d 9, 14 (D.D.C. 2009), for example, was held to have stated a

claim by alleging she was terminated after objecting to her employer’s “abuse of its structure and

tax-exempt status.” And one court has gone so far as to explicitly reject the notion that the

plaintiff must be subject to a mandatory disclosure regime in order to state a claim and sustained

a claim for wrongful discharge in light of the policy “of prohibiting tax-exempt

organizations…from using public funds for political lobbying purposes.” Riggs v. Home

Builders Inst., 203 F. Supp. 2d 1, 21 (D.D.C. 2002). The plaintiff in Riggs alleged that he was

terminated after refusing to engage in activities he believed violated section 501(c)(3). 203 F.

Supp. 2d at 4. 2 The trend, however, following the Supreme Court’s restatement of pleading

standards in Twombly and Iqbal, is towards requiring a closer fit between the public policy and

the whistleblowing. Compare Ware v. Nicklin Assocs., Inc., 580 F. Supp. 2d 158, 165-66

2
Both Riggs and Vreven rely on a public policy protecting the integrity of taxpayer money. Plaintiff has attempted
to trigger that policy by alleging that Howard receives annual appropriations of over $200 million from the federal
government and that Howard is required to provide Congress with financial reports. (Am. Compl. ¶¶ 15-18). The
court declines to sweep so broadly and finds the logic of Myers, 811 F. Supp. 2d at 266-67, to be more persuasive
than that of Riggs, 203 F. Supp. 2d at 21, and Vreven, 604 F. Supp. 2d at 14. The public policy implicated in Myers
also related to integrity in taxpayer money, but was specifically based in laws and regulations protecting
whistleblowers who revealed conduct threatening that integrity. This nexus between specific policy and the conduct
at issue is what the Carl court required. 702 A.2d at 163-165 (rejecting “expansive” and “nebulous” open standard
and requiring a “close fit between the policy thus declared and the conduct at issue in the allegedly wrongful
termination.”) (Terry, J., concurring). Plaintiff similarly argues that she was terminated in violation of the public
policy that favors “the prevention of corruption in government contracting – and the necessity of allowing public
officials to report corruption without fear of reprisal.” (Pl. Renewed Jones Opp’n at 22 (citing Holman v. Williams,
436 F. Supp. 2d 68, 79 (D.D.C. 2006)). That policy is also inapplicable to the facts here. Holman involved
allegations that a D.C. government employee was fired for threatening to publicly accuse members of the D.C.
administration of violating anti-kickback laws. Id. The laws in question were not generally applicable anti-fraud
statutes, but rather specific laws aimed at preventing a particular type of government corruption.

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(D.D.C. 2008) (relying on Conley’s no set of facts language to permit claim that plaintiff had

knowledge of a fraudulent billing and invoicing scheme and was terminated for that knowledge)

with Mpoy v. Fenty, 870 F. Supp. 2d 173, 184-85 (D.D.C. 2012) (special education teacher

alleging discharge after disclosing instructions from principal to falsify test scores had not

identified clear mandate of public policy) and Leyden v. Am. Accreditation Healthcare Comm’n,

No. 14-cv-1118, 2015 WL 1245976, at *5 (D.D.C. Mar. 18, 2015) (plaintiff alleging conflicts of

interest at healthcare accreditation organization failed to identify public policy specifically

prohibiting the conduct she internally reported).

As Judge Cooper of this District recently summarized, the “common denominator” in

viable wrongful discharge claims is “the existence of specific laws or regulations that clearly

reflect a policy prohibiting the activity about which the employee complained, whether or not the

employer actually violated the law or regulation.” Leyden, 2015 WL 1245976, at *5 (emphasis

added). Plaintiff argues that she has identified that common denominator in her case: laws which

criminalize fraud. However, the general public policy against fraud is not nearly as specific as

the policies at issue in other viable wrongful discharge claims. To rest a claim of wrongful

discharge on such an expansive public policy would enable the exception to swallow the rule.

Therefore, the court dismisses Count I for failure to state a claim. 3

3
Because the court determines that was no sufficiently explicit and specific public policy implicated by Defendants’
conduct, it does not reach Jones’ additional arguments that he cannot be held individually liable for the tort of
wrongful discharge and that Plaintiff’s voluntary resignation was not under such intolerable conditions as to render
it a constructive discharge.

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 b. Counts II & III: Gender Discrimination in Violation of Title VII and the
DCHRA 4

To plead a viable discrimination claim under Title VII, the Plaintiff must allege that she

1) “suffered an adverse employment action” 2) because of her sex. Winston v. Clough, 712 F.

Supp. 2d 1, 10 (D.D.C. 2010); Ali v. District of Columbia, 697 F. Supp. 2d 88, 91-92 (D.D.C.

2010). Howard argues that Clay has failed to do so. 5

Howard argues that reassignment, without “any decrease in compensation, job title, level

of responsibility, or opportunity for promotion,” does not constitute an adverse action. (Howard

Mot. at 11 (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007))). Howard

further argues that speculation that the reassignment left Plaintiff vulnerable to a reduction in

force is similarly not actionable because it is just that – speculation. Id. 6 Howard is correct that

“purely subjective injuries, such as dissatisfaction with a reassignment,” are not adverse actions.

Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002).

4
Title VII and DCHRA claims are analyzed under the same legal standard. Slate v. Pub. Defender Serv. for D.C.,
31 F. Supp. 3d 277, 290 n.3 (D.D.C. 2014); Carpenter v. Fed. Nat’l Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999).
Accordingly, Counts II and III rise or fall together.
5
Both Plaintiff and Howard have elected to rest their arguments regarding Counts II and III on the initial motion to
dismiss papers. Those papers focused on whether Plaintiff’s reassignment was sufficiently adverse to be actionable
under Title VII. (Howard Mot. at 11; Pl. Howard Opp’n at 16). The Court notes that the Title VII/DCHRA claims
has shifted since those papers were filed. Howard’s motion to dismiss the gender discrimination claims addressed
gender discrimination in the form of a constructive demotion under the false pretense of a RIF. Although Plaintiff’s
renewed opposition briefs aver that there is no overlap, the Amended Complaint still, to a more limited extent,
alleges that Plaintiff’s decision to resign was “due to the discrimination, hostile work environment, and retaliation
she experienced.” (Am. Compl. ¶ 54). To the extent the parties are assuming that the alleged constructive demotion
continues to form the basis (in part) of Plaintiff’s Title VII and DCHRA claims, the Court joins in that assumption
for the purpose of determining whether those claims are adequately pled. Howard has not moved for dismissal on
the basis that Plaintiff’s amended allegations concerning disparate treatment of women and a hostile work
environment are inadequately pled. Accordingly, the court does not address those issues and addresses only the
question that was briefed: whether Plaintiff’s reassignment constituted an adverse employment action.
6
The citation to Holland concerning “speculation about the future adverse consequences of a reassignment”
(Howard Mot. at 11) addressed whether plaintiff there had presented enough evidence to defeat a motion for
summary judgment, 487 F.3d at 219, and is inapposite to the present motion to dismiss

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 However, as Plaintiff notes, there are circumstances under which even so-called lateral

transfers may be adverse actions for the purposes of Title VII. As a matter of law, an adverse

employment action is a “significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)

(emphasis added); Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). Howard essentially

ignores allegations in the Amended Complaint that this lateral transfer did in fact involve

“reassignment with significantly different responsibilities.”

Plaintiff alleges that her new position “had no defined responsibilities, and certainly did

not have responsibilities commensurate with her previous position.” (Am. Compl. ¶ 48); see

Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006) (plaintiff who “mired in professional

purgatory for over two years” suffered adverse employment action). She also alleges that the

new position was “essentially a ‘part-time’ position” which “required several areas of knowledge

that Ms. Clay did not possess and for which she was not offered any training.” (Am. Compl. ¶

49). Moreover, Plaintiff’s allegation that she was falsely told her former position was eliminated

due to a reduction in force certainly lends plausibility to the notion that her reassignment was

something more than innocuous restructuring. (Am. Compl. ¶ 52). Given these allegations,

Plaintiff has adequately alleged an adverse action linked to her gender.

c. Count IV: Violation of the Equal Pay Act

The Federal Equal Pay Act (“EPA”) prohibits an employer from discriminating “between

employees on the basis of sex by paying wages to employees…at a rate less than the rate at

which he pays wages to employees of the opposite sex…for equal work on jobs the performance

of which requires equal skill, effort, and responsibility, and which are performed under similar

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working conditions.” 29 U.S.C. § 206(d)(1). To adequately plead an EPA violation, Plaintiff

must allege facts supporting the inference that: 1) she was “doing substantially equal work on the

job, the performance of which required substantially equal skill, effort, and responsibility as the

jobs held by members of the opposite sex;” 2) “the job was performed under similar working

conditions;” and 3) she was “paid at a lower wage than members of the opposite sex.” Cornish

v. District of Columbia, No. 13-cv-1140, 2014 WL 583637, at *10 (D.D.C. Sept. 16, 2014).

As the court noted in its previous opinion, there is scant case law addressing the use of a

non-immediate successor as comparator for salary purposes, and the issue is intensely fact-

specific. (Opinion at 13 (citing Broadus v. O.K. Indus., Inc., 226 F.3d 937, 942 (8th Cir. 2000)

(given the circumstances specific to the complaint, plaintiff could use a non-immediate successor

in her position as wage comparator)). Based on statements by Plaintiff at oral argument that, in

addition to Mr. Jackson, other similarly situated men were paid more than she, Plaintiff was

given leave to amend her complaint to include this allegation and any other factual allegations

supporting the use of a non-immediate comparator. She now alleges on information and belief

that “other similarly situated males at Howard University also received more pay for the

substantially similar work as Ms. Clay.” (Am. Compl. ¶ 84). The complaint also specifically

invokes the applicability of the Broadus rule by alleging that Jackson “was hired to do the same

work as Ms. Clay in the position of Senior Benefits Analyst, and was paid significantly more.”

(Am. Compl. ¶ 84). Howard, perhaps expecting more detail, argues that Plaintiff “did not follow

the Court’s Order” to “add facts to support use of a non-immediate comparator as well as other

examples of males” paid more than she. (Howard Renewed Mot. at 4). The court finds

however, that the allegations in the Amended Complaint are sufficient to support the inference

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that Plaintiff performed equal work for unequal pay, and Howard’s motion to dismiss as to this

count will be denied.

d. Count V: Retaliation in Violation of Title VII

To sustain a claim for retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a),

Plaintiff must show that Howard “took materially adverse action against [her] because [she]

participated in protected activity.” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013);

Amiri v. Securitas Sec. Servs. USA, Inc., 35 F. Supp. 3d 41, 46 (D.D.C. 2014). In the context of

rehiring, Plaintiff must also show that she “applied for an available job and was qualified for that

position.” Amiri, 35 F. Supp. 3d at 46.

Howard argues both that Plaintiff has failed to plead an adverse action, (e.g., Howard

Mot. at 12 7 (“Plaintiff’s claim of adverse employment action in the form of Howard’s hiring of

Mr. Jackson at a higher salary should not be considered anything more than a conclusory

allegation”)), and that Plaintiff has not adequately alleged the necessary causal link, (e.g. id.

(“Plaintiff has proffered no facts other than…that she filed an EEOC claim about which Howard

was aware, and that a male was selected at a higher salary after her former position was

advertised for a second time”)). Neither argument has merit at this stage of the litigation.

Howard’s characterization of the alleged adverse action as the “hiring of Mr. Jackson at a

higher salary” misses the mark. The complained-of action is Howard’s decision not to hire

Plaintiff for her former position, a decision which plainly constitutes an adverse employment

action for the purposes of 42 U.S.C. § 2000e-3(a). Nat’l Ry. Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002) (in identifying discrete acts of discrimination for statute of limitations

purposes, “failure to promote, denial of transfer, or refusal to hire are easy to identify”)

7
Howard and Plaintiff rest on the papers from the original Motion to Dismiss as it relates to Count V.

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(emphasis added); see also Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 653-54

(D.C. Cir. 2003) (assuming that decision to offer position to external candidate instead of

plaintiff, an internal candidate, constituted adverse action); Cones v. Shalala, 199 F.3d 512, 521

(D.C. Cir. 2000) (“unable to dispute that its refusal to compete the position adversely affected

Cones, HHS cannot legitimately contend that it took no adverse personnel action against him”);

Byrd v. District of Columbia, 807 F. Supp. 2d 37, 70 (D.D.C. 2011) (refusal to renew or extend

term employment constituted adverse employment action); Kangethe v. District of Columbia,

953 F. Supp. 2d 194, 200 & n.2 (D.D.C. 2013) (refusal to promote is adverse action). The case

Howard cites as support for this argument, Gladden v. Solis, did not address whether the

complaint adequately alleged an adverse action, but rather whether or not the causal nexus had

been adequately pleaded. 926 F. Supp. 2d 147, 152 (D.D.C. 2013).

Howard’s suggestion that, since Clay was invited to interview for the position, her non-

hiring was not retaliatory, is not persuasive on a motion to dismiss. (Howard Mot. at 12). While

the fact that Plaintiff did interview for the position may constitute evidence of a legitimate reason

for Plaintiff’s non-selection, the mere fact that it took place should not, at this stage, preclude

Plaintiff from proceeding. To hold otherwise would enable employers to insulate themselves

from retaliation claims simply by pro forma interviewing any candidate who had engaged in

protected activity.

Finally, Howard’s argument that there is no causal link between the decision not to re-

hire Plaintiff and Plaintiff’s protected activity also fails. Plaintiff filed her first EEOC charge on

November 28, 2012. (Am. Compl. ¶ 8). Jackson received the job on January 14, 2013, less than

two months later. (Id. at ¶ 93). Temporal proximity alone can suffice to infer a causal link.

Cones, 199 F.3d at 521. The proximity must be “very close.” Clark Cty. Sch. Dist. v. Breeden,

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532 U.S. 268, 273 (2001). Many courts view Breeden as setting a general outer limit of a three-

month gap between the protected activity and the retaliation. See Lowe v. District of Columbia,

669 F. Supp. 2d 18, 28 (D.D.C. 2009) (collecting cases). The period of less than two months at

issue here comfortably falls within that window.

IV. CONCLUSION

Plaintiff adequately alleges that Howard discriminated against women and paid Plaintiff

less than at least one male counterpart. Plaintiff also adequately alleges that Howard retaliated

against her after she filed an EEOC complaint against Howard. Accordingly, Howard’s motion

is DENIED as it relates to Counts II – V of the Amended Complaint. However, Plaintiff fails to

adequately allege wrongful discharge in violation of public policy. The Court therefore

GRANTS the portion of Howard’s motion seeking to dismiss Count I and GRANTS Jones’

motion to dismiss in full.

A corresponding order will issue separately.

Dated: May 28, 2015

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