UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DERRICK W. MACON, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2067 (EGS)
)
UNITED STATES CAPITOL POLICE )
BOARD, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Plaintiff Derrick Macon, pro se, alleges that he suffered
discrimination and retaliation in violation of the Congressional
Accountability Act, 2 U.S.C. § 1301, et seq. (“CAA”). Pending
before the Court is the defendant’s motion to dismiss pursuant
to Federal Rule of Civil Procedure Rule 12(b)(1), or in the
alternative, Federal Rule of Civil Procedure 12(b)(6). Upon
consideration of the motion, the response and reply thereto, the
applicable law, and the entire record, the motion will be
GRANTED in PART and DENIED in PART.
I. Background
On March 19, 2012, Mr. Macon filed a Complaint in which he
alleged that his employer, defendant United States Capitol
Police Board, discriminated against him in violation of the CAA.
Am. Compl., ECF No. 4. In Count I, Mr. Macon alleges that he was
discriminated based on disability. See id. at 7. In Count II,
Mr. Macon alleges that he was subjected to a hostile work
environment. See id. at 7-8. In Count III, Mr. Macon alleges
that he was subjected to discrimination based on race. See id.
at 8-9. In Count IV, Mr. Macon alleges that he was subjected to
retaliation. See id. at 9-10. Mr. Macon alleges that he
exhausted his administrative remedies by completing counseling
and mediation with the Congressional Office of Compliance with
regard to Office of Compliance Case No. 11-CP-50 and that on
August 20, 2011, he received an End of Mediation Notice. See id.
at 4-5. The original Complaint in this case was filed on
November 21, 2011, and attached to the Complaint was the End of
Mediation Notice for Case No. 11-CP-50. See Compl., ECF No. 1 at
5. This Notice does not contain information about the
allegations that were the subject of the counseling and
mediation in that case. See id.
Mr. Macon is also a pro se plaintiff in three other cases
before this Court –- Blackmon-Malloy, et al., v. United States
Capitol Police Bd., Civil Action No. 01-2221 1; Macon v. United
States Capitol Police Bd., Civil Action No. 08-003; and Macon v.
United States Capitol Police Bd., Civil Action No. 09-cv-592. On
May 18, 2010, the Court declined to consolidate the instant case
1 Mr. Macon is also the plaintiff in Macon v. Capitol Police Bd.,
Civil Action No 03-1592. That case has been consolidated with
Blackmon-Malloy v. Capitol Police Bd., Civil Action No. 01-2221.
2
with the other cases listed above, but did order that all cases
follow the same schedule to address the threshold subject matter
jurisdiction issue in accordance with the decision of the Court
of Appeals of the District of Columbia Circuit in Blackmon-
Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, (D.C. Cir.
2009). Thereafter, in light of Mr. Macon’s earlier notification
to the Court that he did not oppose limited consolidation of the
instant case with Civil Action No. 01-2221 “to address the
threshold question of meeting the jurisdictional requirements as
set forth in” the Court of Appeals decision, the Court informed
the parties that it would defer ruling on the defendant’s motion
to dismiss in the instant case pending the Court’s resolution of
the motion to dismiss in Civil Action No. 01-2221. See Civil
Action No. 09-592, Minute Order, Jan. 6, 2011. The parties later
notified the Court that they consented to the Court proceeding
to consider the defendant’s motion to dismiss. See Civil Action
No. 11-2067, Minute Order, May 15, 2015. As the Court had ruled
on the motion to dismiss in Civil Action No. 01-2221, the Court
considered the motion to dismiss in this case and determined
that it should be held in abeyance pending Mr. Macon’s response
to the Court’s Order to Show Cause. Mem. Op., ECF No. 16.
The Court observed that Mr. Macon had failed to provide
documentation to support his assertions that he went through the
counseling and mediation process regarding the claims alleged in
3
the Amended Complaint. Specifically, the documentation attached
to Mr. Macon’s original Complaint and his opposition to the
defendant’s motion to dismiss does not contain information
regarding the allegations made in Office of Compliance Case No.
11-CP-50. As the Court is to construe a pro se complaint
liberally, it issued an Order to show cause why the Amended
Complaint should not be dismissed with prejudice for failure to
demonstrate -- through relevant Office of Compliance documents
similar to those Mr. Macon has provided in other cases before
this Court –- that his claims in his Amended Complaint were
actually presented in counseling and mediation. Mr. Macon timely
responded to the Order to show cause and the defendant timely
replied.
II. Legal Standards – Federal Rule of Civil Procedure
12(b)(1)
A. Motion to Dismiss for Lack of Subject-Matter
Jurisdiction.
A federal district court may only hear a claim over which it
has subject matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court’s
jurisdiction. Fed.R.Civ.P. 12(b)(1). On a motion to dismiss for
lack of subject matter jurisdiction, the plaintiff bears the
burden of establishing that the Court has jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating
the motion, the Court must accept all of the factual allegations
4
in the complaint as true and give the plaintiff the benefit of
all inferences that can be drawn from the facts alleged. See
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). However,
the Court is “not required . . . to accept inferences
unsupported by the facts alleged or legal conclusions that are
cast as factual allegations.” Cartwright Int’l Van Lines, Inc.
v. Doan, 525 F. Supp. 2d 187, 193 (D.D.C. 2007) (quotation marks
omitted). Finally, a “pro se complaint is entitled to liberal
construction.” Washington v. Geren, 675 F.Supp.2d 26, 31
(D.D.C.2009) (citing Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972)).
B. Administrative Exhaustion under the Congressional
Accountability Act.
The Congressional Accountability Act of 1995, 2 U.S.C. § 1301,
et seq., “extend[s] the protections of Title VII of the Civil
Rights Act of 1964, as well as ten other remedial federal
statutes, to employees of the legislative branch.” Blackmon-
Malloy III, 575 F.3d at 701. Subchapter IV of the Act (Sections
1401–1416) governs the procedures for the administrative
processing of any disputes under the Act. As relevant here, it
sets forth “a three-step process that requires counseling and
mediation before an employee may file a complaint seeking
administrative or judicial relief.” Id. The employee must first
engage in counseling regarding his particular complaint. Then,
5
he must proceed to mediation. Upon completion of mediation, he
may elect to file suit in federal court.
In determining whether the employee “has completed counseling
and mediation,” 2 U.S.C. § 1408(a), as required to file a
lawsuit, the Court is not empowered to examine what actually
transpired in any counseling or mediation session or to
determine the effectiveness of those sessions. Blackmon-Malloy,
575 F.3d at 711–12. Rather, “the reference in section 1408(a) to
‘completed counseling . . . and mediation’ means no more than
that[: (1)] the employee timely requested counseling and
mediation, [(2)] that the employee did not thwart mediation by
failing to give notice of his or her claim upon request, [(3)]
that the mandated time periods have expired, and [(4)] that the
employee received end of counseling and mediation notices from
the Office.” Id. at 713.
1. The Counseling Requirement
The first step an employee must take is “counseling as
provided in section 1402.” 2 U.S.C. § 1401(1). “‘[T]o commence a
proceeding,’ the employee must request counseling within 180
days of the date of the alleged violation of a law made
applicable by the [Congressional Accountability Act].” Blackmon-
Malloy III, 575 F.3d at 702 (quoting 2 U.S.C. § 1402(a)). “As
regards counseling, ‘[t]he Office shall provide the employee
with all relevant information with respect to the rights of the
6
employee.’” Id. (quoting 2 U.S.C. § 1402(a)). “The
[Congressional Accountability Act] further provides that ‘[t]he
period for counseling shall be 30 days unless the employee and
the Office agree to reduce the period.’” Id. (quoting 2 U.S.C. §
1402(b)). The Court of Appeals for the District of Columbia
Circuit has held that the counseling requirement does not
encompass a requirement that the complaining employee be
physically present for counseling, “[g]iven the limited purpose
of counseling to provide the employee with information about his
or her rights and the limited benefit that would inure to the
employee or the Office from performing this function in person.”
Id. at 708. Finally, “[t]he Office must ‘notify the employee in
writing when the counseling period has ended.’” Id. (quoting 2
U.S.C. § 1402(c)).
2. The Mediation Requirement
The second step that an employee must take is “mediation as
provided in section 1403.” 2 U.S.C. § 1401(2). “‘[N]ot later
than 15 days after receipt . . . of notice of the end of the
counseling period . . . but prior to and as a condition of
making an election under section 1404,” the employee must “file
a request for mediation with the Office.’” Blackmon-Malloy III,
575 F.3d at 702 (quoting 2 U.S.C. § 1403(a)). “Mediation ‘may
include the Office, the covered employee, the employing office,
and one or more individuals appointed by the Executive Director’
7
of the Office, but ‘shall involve meetings with the parties
separately or jointly for the purpose of resolving the dispute
between the covered employee and the employing office.’” Id.
(quoting 2 U.S.C. § 1403(b)(1), (2)). “The mediation period
‘shall be 30 days,’ which may be extended upon joint request of
the parties, and (as with counseling) the Office must ‘notify in
writing the covered employee and the employing office when the
mediation period has ended.’” Id. (quoting 2 U.S.C. § 1403(c)).
Just as for counseling, mediation need not involve the
complaining individual’s physical presence. See id. at 710.
3. Election
The third and final step is “election, as provided in section
1404 . . . of either . . . a formal complaint and hearing . . .
subject to Board review . . . and judicial review in the United
States Court of Appeals for the Federal Circuit . . . or . . . a
civil action in a district court of the United States as
provided in section 1408.” 2 U.S.C. § 1401(3); see also
Blackmon-Malloy III, 575 F.3d at 702. If the civil-action route
is chosen, the three-step procedure constitutes a jurisdictional
requirement. The Congressional Accountability Act declares that
“[t]he district courts of the United States shall have
jurisdiction over any civil action commenced under section 1404
. . . by a covered employee who has completed counseling under
section 1402 . . . and mediation under section 1403 . . . . A
8
civil action may be commenced by a covered employee only to seek
redress for a violation for which the employee has completed
counseling and mediation.” 2 U.S.C. § 1408(a). This language,
combined with its location in a section entitled “jurisdiction,”
led the Court of Appeals for the District of Columbia Circuit to
hold that “it is apparent from the plain terms of the text that
Congress intended counseling and mediation to be jurisdictional
requirements.” Blackmon-Malloy, 575 F.3d at 705. Accordingly,
district courts are “not empowered to apply the equitable
doctrine of vicarious exhaustion to excuse compliance.” Id. at
706.
III. Analysis
The defendant moves to dismiss the Amended Complaint
pursuant to Rule 12(b)(1) on two grounds: (1) the original
Complaint was not timely filed; and (2) Mr. Macon has not
demonstrated that that he timely exhausted his administrative
remedies for each of his claims. See Def.’s Mot. to Dismiss, ECF
No. 6 at 10-13. The defendant notes that Mr. Macon alleged that
he received the end of mediation notice on August 20, 2011. See
id. at 14. Thus, according to the defendant, Mr. Macon was
required to file his Complaint in this court within 90 days, or
by no later than November 18, 2011. See id. Because Mr. Macon
filed his Complaint on November 21, 2011, he was three days late
and thus, according to the defendant, the Court lacks
9
jurisdiction over his claims. See id. The defendant also argues
that the Amended Complaint should be dismissed because Mr. Macon
“has not plead any facts to establish the date of the alleged
violation, what occurred, and how he may have been adversely
affected.” Id. at 15.
With regard to the first issue, Mr. Macon responds that he
received his end of mediation notice on August 23, 2011, and
attached to his memorandum a certification from the Office of
Compliance stating that “Acknowledgment of receipt of
Notification of End of Mediation Period by the complainant was
made on August 23, 2011.” Pl.’s Opp’n, ECF No. 8 at 3, 18. Mr.
Macon also attached a “Certificate of Official Record” from the
custodian of records from the Office of Compliance, who is
responsible “for maintaining the official records of the Office
regarding the dates on which events under Sections 401 through
404(1), and 405 of the Congressional Accountability Act
occurred” including “the dates on which the employee received
notification of the end of such counseling and mediation.” Id.
at 17.
The defendant acknowledges that were the Court to accept
the August 23, 2011 date as the date on which Mr. Macon received
the notice, then Mr. Macon’s Complaint would be timely. See
Def.’s Reply (hereinafter “ECF No. 9”), ECF No. 9 at 3. The
defendant notes, however, that Mr. Macon has presented the Court
10
with two contradictory dates and thus has not carried his
“‘burden of persuasion to establish subject matter jurisdiction
by a preponderance of the evidence. ’” ECF No. 9, citing
Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C.
2000).
As set forth supra, it is Mr. Macon’s responsibility to set
forth some evidence that a particular claim was actually
presented in counseling and mediation and that he exhausted his
administrative remedies and timely filed his Complaint in this
Court. With regard to whether Mr. Macon’s Complaint was timely
filed, Mr. Macon has satisfied his responsibility by providing
the relevant Certificate of Official Record, which establishes
that he received his Notification of End of Mediation Period on
August 23, 2011. Accordingly, as defendant concedes, his
Complaint was timely filed.
Mr. Macon provided four documents in response to the show
cause order: (1) his Formal Request for Counseling dated April
19, 2011 referencing two attached letters; (2) Letter dated
April 19, 2011 officially requesting counseling (“Counseling
Request”) alleging a hostile work environment from November 5,
2010 through April 19, 2011; (3) Letter dated April 19, 2011
filing a complaint (“Office of Compliance Complaint”) alleging a
hostile work environment from December 25, 2010 through April
19, 2011; and (4) Office of Compliance Certificate of Official
11
Record for Case No. 11-cp-50 (CV, DA, RP) dated November 29,
2011. Pl.’s Reply to Court Order to Show Cause, ECF No. 17. The
first three documents are stamped as having been received by the
Office of Compliance on April 19, 2011. The fourth document
references an attachment, but the attachment was not provided in
response to the Show Cause Order. The Court notes, however, that
Mr. Macon provided the attachment as Exhibit A to his opposition
to the defendant’s motion to dismiss. ECF No. 8 at 18. This
document provides an Office of Compliance Certification as
follows: for Case No. 11-CP-50, (1) the request for counseling
was made on April 19, 2011; (2) Mr. Macon acknowledged receipt
of notification of end of counseling period on May 28, 2011; (3)
Mr. Macon requested mediation on May 31, 2011; and (4) Mr. Macon
acknowledged receipt of notification of end of mediation period
on August 23, 2011.
The defendant disputes that Mr. Macon has met his burden of
persuasion to establish that the Court has subject matter
jurisdiction over his claims because, according to the
defendant, these documents do not substantiate his allegations
that he complied with the mandatory counseling and mediation
processes regarding the claims in his Amended Complaint. Def.’s
Opp’n to Pl.’s Reply to an Order to Show Cause, ECF No. 18.
Again, Mr. Macon’s responsibility is to set forth some
evidence demonstrating that a particular claim was actually
12
presented in counseling and mediation and that he exhausted his
administrative remedies. Mr. Mason has demonstrated that the two
letters dated April 19, 2011, and received by the Office of
Compliance on that date describe the claims for which he sought
counseling on April 19, 2011. Further, it is reasonable for the
Court to understand the Office of Compliance Certification for
Case No. 11-CP-50 to refer to the claims described in these
letters because date upon which counseling was sought is the
same date that these letters were received by the Office of
Compliance. Finally, Mr. Macon sought counseling within 180 days
of the alleged creation and continuation of the hostile work
environment.
The next question is whether the claims Mr. Macon asserts
in this civil action were raised in the documentation submitted
to the Office of Compliance. In Count I of the Amended
Complaint, Mr. Macon alleges that he was discriminated against
based on disability. In his Office of Compliance Complaint, Mr.
Macon alleges that an employee of the defendant retaliated
against him by unreasonably delaying his return to duty after
the completion of treatment by his health care provider. ECF No.
17 at 9. In Count II, Mr. Macon alleges that he was subjected to
a hostile work environment. In both his Counseling Request and
his Office of Compliance Complaint, Mr. Macon states that an
employee of the defendant “created and continues to create a
13
‘severe and pervasive’ hostile work environment.” ECF No. 17 at
7, 9, 10. In Count III, Mr. Macon alleges that he was subjected
to discrimination based on race. See id. at 8-9. In his
Counseling Request, Mr. Macon states that defendant has created
a racially discriminatory and hostile environment. ECF No. 17 at
12-13. In Count IV, Mr. Macon alleges that he was subjected to
retaliation. In his Office of Compliance Complaint, Mr. Macon
alleges retaliation. ECF No. 17 at 9. Mr. Macon has therefore
demonstrated that he administratively exhausted these claims.
The Court will therefore DENY defendant’s motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1). As the
Court has determined that it has subject matter jurisdiction, it
next considers the defendants’ Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6).
IV. Legal Standard – Federal Rule of Civil Procedure
12(b)(6)
A Rule 12(b)(6) motion to dismiss “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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
requires that “the plaintiff pleads factual content that allows
14
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Detailed factual
allegations are not required, but the plaintiff is required to
provide “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation,” id., and must plead enough facts “to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do
not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679.
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).
The court “must accept as true all of the factual allegations
contained in the complaint,” Atherton v. D.C. Office of the
Mayor, 567 F.3d 672, 681 (D.C.Cir.2009)(quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)), and must construe the complaint
liberally in the plaintiff’s favor, granting the plaintiff the
15
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 need not “accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts
set out in the complaint. Nor must the court accept legal
conclusions cast in the form of factual allegations.” Id.
Further, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Only a claim that “states a
plausible claim for relief survives a motion to dismiss.” Id. at
679. Although a pro se complaint “must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)
(per curiam) (internal quotation marks and citation omitted), it
too, “must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct,’ ” Atherton
v. District of Columbia Office of the Mayor, 567 F.3d 672, 681–
82 (D.C.Cir.2009) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct.
1937).
Under the standard set forth in Iqbal, to survive a motion
to dismiss, Mr. Macon’s complaint needs to “contain[] sufficient
factual matter” from which the Court can “draw the reasonable
inference” that the defendant discriminated against him and thus
violated the CAA. Iqbal, 556 U.S. at 678.
16
V. Analysis
A. Discrimination Based on Disability
In Count I, Mr. Macon alleges that he was discriminated
against based on disability when the defendant denied his
“reasonable accommodation [by] refusing to assist him to return
to work by violating established procedures.” Am. Compl., ECF No
4 ¶ 36. The facts alleged in support of this claim are as
follows:
Plaintiff insisted that he was entitled to be
restored to regular duty in light of the fact
that he was no longer injured and has reached
maximum medical improvement. His physician
documented that Plaintiff has cleared his
treatment and was fit for duty . . . [but that]
[d]efendant has refused to restore Plaintiff
to regular duty because he filed a complaint
of discrimination.
Id. ¶¶ 31, 33.
The CAA prohibits discrimination based on “disability,
within the meaning of section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791) and sections 102 through 104 of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12112 to
12114).” 2 USC § 1311(a)(3). The Rehabilitation Act provides
that “[n]o otherwise qualified individual with a disability” may
be discriminated against by a federal agency “solely by reason
of her or his disability.” 29 U.S.C. § 794(a). 2 The two essential
2 The Act “expressly incorporates the standards of the [Americans
with Disabilities Act] for claims of employment discrimination.”
17
elements of a discrimination claim under the Act are that (i)
the plaintiff suffered an adverse employment action (ii) because
of her disability. Baloch v. Kempthorne, 550 F.3d 1191, 1196
(D.C. Cir.2008). 3 Thus, a plaintiff must allege that he has a
disability to state a claim for discrimination based on
disability. Here, Mr. Macon has not alleged that he has a
disability. Rather, he alleges that he was injured and his
physician determined that he was fit to return to duty, but the
defendant refused to do so. Am. Compl., ECF No. 4 ¶ 31. Because
Mr. Macon has failed to allege one of the essential elements of
a disability discrimination claim, the Court will GRANT the
defendant’s motion as to Count I of the Amended Complaint.
B. Hostile Work Environment
In Count II, Mr. Macon alleges that he was subjected to a
hostile work environment based on his race in an effort to force
him to retire when the defendant “(1) place[d] him in fear of
being furloughed; (2) placed him on extensive administrative
Rosier v. Holder, 833 F.Supp.2d 1, n.1 (D.D.C.2011)(internal
citations omitted).
3 Generally, to establish a prima facie case of discrimination, a
plaintiff must demonstrate that: “(1) [he] is a member of a
protected class; (2) [he] has suffered an adverse employment
action; and (3) the unfavorable action gives rise to an
inference of discrimination.” Czekalski v. Peters, 475 F.3d 360,
364 (D.C.Cir.2007)(quoting George v. Leavitt, 407 F.3d 405, 412
(D.C.Cir.2005)). “At the motion to dismiss stage, however, a
plaintiff need not prove a prima facie case.” Munro v. LaHood,
839 F.Supp.2d 354, 360 (D.D.C.2012)(citations omitted).
18
leave; and (3) refused to restore him to regular duty despite
finding that he reached maximum medical improvement.” Id. ¶¶ 27,
40. In Count IV, entitled “Retaliation (Discrete and Hostile
Environment),” Mr. Macon alleges that he was “mistreated,
humiliated, intimated and disrespected by [d]efendant, Frederick
Herrera and other employees on an almost daily basis,” id. ¶ 56;
that this treatment interfered with his work performance, id. ¶
58; that “[d]efendant’s refusal to return [him] to full-duty
significantly altered the condition of employment,” id. ¶ 61;
that defendant’s denying Mr. Macon the opportunity to work
overtime was a materially adverse action, id.; and that these
actions constitute both discrete acts and a “hostile work
environment based on retaliatory harassment.” Id. ¶ 62.
As factual support for these claims, Mr. Macon alleges that
although his physician documented that he was fit for duty in
December 2010, the defendant refused to restore him to regular
duty and considered him “non-essential” in retaliation for
having filed an administrative complaint. Id. ¶¶ 31, 33. The
complaint alleges that Mr. Macon had not been restored to active
duty as of May 2011. Id. ¶ 32.
As set forth by the Court of Appeals for the District of
Columbia Circuit:
To prevail on a hostile work environment
claim, a plaintiff must first show that he or
she was subjected to “discriminatory
19
intimidation, ridicule, and insult” that is
“sufficiently severe or pervasive to alter the
conditions of the victim's employment and
create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49
(1986)).
In evaluating a hostile work environment
claim, the court “looks to the totality of the
circumstances, including the frequency of the
discriminatory conduct, its severity, its
offensiveness, and whether it interferes with
an employee's work performance.” Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir.2008)
(citing Faragher v. City of Boca Raton, 524
U.S. 775, 787–88, 118 S.Ct. 2275, 141 L.Ed.2d
662 (1998)).
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C.Cir.2013).
Depending upon the circumstances, a single incident can be
sufficient to establish a hostile work environment. Id.(noting
that the employer was alleged to have “used a deeply offensive
racial epithet when yelling at [the plaintiff] to get out of his
office.”)
The defendant disputes that Mr. Macon’s factual assertions
constitute conduct that was severe or pervasive enough to create
a hostile work environment, nor that he has proffered any
information establishing that the defendant’s actions interfered
with his work performance. Def.’s Mot. to Dismiss, ECF No. 6 at
23.
20
Here, although Mr. Macon alleges that he was “mistreated,
humiliated, intimated and disrespected by [d]efendant, Frederick
Herrera and other employees on an almost daily basis,” Am.
Compl., ECF No. 4 ¶ 56, his sole specific fact supporting his
hostile work environment claim is that the defendant refused to
restore him to regular duty. This single incident is clearly not
comparable to the severity of the sole incident referenced
above. Construed in the light most favorable to the pro se
plaintiff and making all inferences in his favor, Mr. Macon’s
complaint fails to “contain[] sufficient factual matter” from
which the Court can “draw the reasonable inference” that the
defendant created a hostile work environment in violation of the
CAA. Iqbal, 556 U.S. at 678. Accordingly, the Court will GRANT
the defendant’s motion as to Count II of the Amended Complaint.
C. Discrimination Based on Race
In Count III, Mr. Macon alleges that he was discriminated
against based on race when Mr. Frederick Herrera, Senior
Employment Counsel, “ordered the delay of the legal assistance
requested to return plaintiff to full duty.” Am. Compl., ECF No.
4 ¶¶ 45, 46.
To bring an actionable discrimination claim, Mr. Macon 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
21
discrimination.” Edwards v. Gray, 7 F.Supp.3d 111, 115 (D.D.C.
2013)(quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002)
(quotation marks omitted). “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 plaintiff must nevertheless ‘plead
sufficient facts to show a plausible entitlement to relief.’”
Edwards, 7 F.Supp.3d at 115.
The defendant disputes that Mr. Macon has stated a claim
for discrimination based on race because he has not alleged
sufficient facts to support his allegation of having suffered an
actionable adverse employment action. Def.’s Mot. to Dismiss,
ECF No. 6 at 15-16.
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 significant change in benefits.” Taylor v.
Small, 350 F.3d 1286, 1293 (D.C.Cir.2003)(quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)(pinpoint cite
omitted in original). Construed in the light most favorable to
the pro se plaintiff and making all inferences in his favor, Mr.
Macon has adequately alleged an actionable adverse employment
22
action: he has alleged that he was not returned to full duty
although he was medically capable of doing so. Am. Compl., ECF
No. 4 ¶ 31, 45-46. Although Mr. Macon has not alleged facts
describing the ramifications of not being returned to full duty,
it is reasonable for the Court to infer that an employer’s
refusal to return an employee to full duty could constitute a
significant change in employment status. Accordingly, the Court
will DENY the defendant’s motion as to Count III of the Amended
Complaint.
D. Retaliation
In Count IV, Mr. Macon alleges that he was retaliated
against because the defendant knew that he had filed a complaint
and that the defendant “refused to restore [him] to his regular
duties and – [ ] instead kept him in fear of losing his job – in
retaliation for engaging in his protected conduct.” Am. Compl.
¶¶ 53-54.
“To prove retaliation, the plaintiff generally must
establish that he or she suffered (i) materially adverse action
(ii) because he or she had brought or threatened to bring a
discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198
(D.C.Cir.2008). To survive a motion to dismiss a retaliation
claim, “all [the] complaint has to say” is “the Department
retaliated against me because I engaged in protected activity.”
Rochon v. Gonzalez, 438 F.3d 1211, 1220 (D.C.Cir.2006)(internal
23
citations omitted); Munro v. LaHood, 839 F.Supp.2d. 354, 364
(D.D.C.2012).
Defendant disputes that that Mr. Macon has stated a claim
for retaliation because: (1) he has not demonstrated that there
was a material disadvantage to his employment; and (2) he has
not alleged a causal connection between his participation in the
complaints filed in this Court in 2001, 2008, and 2009, and the
defendant’s alleged failure to return him to his regular duties.
Def.’s Mot. to Dismiss, ECF No. 6 at 16-18.
However, to survive a motion to dismiss a retaliation claim,
“all [the] complaint has to say” is “the [defendant] retaliated
against me because I engaged in protected activity.” Rochon, 438
F.3d at 1220. Mr. Macon has sufficiently alleged a claim because
he has alleged that he was retaliated against by not being
returned to active because he engaged in protected activity.
Accordingly, the Court will DENY the defendant’s motion as to
Count IV of the Amended Complaint.
VI. Conclusion
Upon consideration of the motion, the response and reply
thereto, the applicable law, and the entire record, the Motion
is GRANTED in PART and DENIED in PART. Mr. Macon may proceed on
Counts III and IV of the Amended Complaint. Counts I and II
will be dismissed. An appropriate Order accompanies this
Memorandum Opinion.
24
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 29, 2017
Notice to: 12401 Weldon Manor Lane
Upper Marlboro, MD 20772
25