Border v. Nat'l Real Estate Advisors, LLC, Civil Case No. 19-974
| Decision Date | 31 March 2020 |
| Docket Number | Civil Case No. 19-974 |
| Citation | 453 F.Supp.3d 249 |
| Parties | Heather BORDER, Plaintiff, v. NATIONAL REAL ESTATE ADVISORS, LLC, Defendant. |
| Court | U.S. District Court — District of Columbia |
Marlene Ailloud Laimeche, Shannon C. Leary, Gilbert Employment Law, P.C., Cori Morgan Cohen, Law Offices of Gary M. Gilbert & Associates, P.C., Silver Spring, MD, for Plaintiff.
Daniel Connor Deacon, Kara M. Maciel, Lindsay A. DiSalvo, Conn Maciel Carey LLP, Washington, DC, for Defendant.
Plaintiff Heather Border brings this action against her former employer, defendant National Real Estate Advisors, LLC ("National"), alleging unlawful discrimination, harassment, and retaliation on the basis of sex and disability, stemming from her two high-risk pregnancies in 2017 and 2018. She argues that defendant's actions—which culminated in her demotion and termination—were motivated by plaintiff's use of protected pregnancy and family leave. She seeks monetary damages under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the Pregnancy Discrimination Act, 42 U.S.C. § 2000e et seq. ("PDA"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq. ("DCHRA"); the D.C. Family and Medical Leave Act, D.C. Code § 32-501 et seq. ("DCFMLA"); and the Protecting Pregnant Workers Fairness Act of 2014, D.C. Code § 32-1231.01 et seq. ("PPWFA").
For its part, defendant argues that its actions were motivated by plaintiff's poor management style, declining performance, and the need to refocus defendant's capital raising efforts. Defendant seeks to dismiss portions of plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), including (1) Counts III and IV because plaintiff is not an "eligible employee" covered by the DCFMLA; (2) Count V because plaintiff fails to meet the requirements to qualify for coverage under the PPWFA; (3) Count XIV because plaintiff is not disabled as defined by the ADA; (4) Counts VI, IX, XI, XII, XIV, XV, and XVII to the extent that they are based on allegations not asserted in plaintiff's July 20, 2018, Charge of Discrimination because she did not exhaust her administrative remedies as to these claims; and (5) Counts XII, XIII, XIV, XV, XVI, and XVII because the allegations are not sufficiently severe or pervasive to meet an essential element of a hostile work environment claim. For the reasons that follow, the Court will grant in part and deny in part defendant's partial motion to dismiss.
A party may move to dismiss a case under Rule 12(b)(6) for failure to state a claim for which relief can be granted. See Fed. R. Civ. P. 12(b)(6). To move her case past a Rule 12(b)(6) motion to dismiss, plaintiff's complaint must contain sufficient factual allegations that, if true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires that her complaint raises "more than a sheer possibility that [National] has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
In evaluating defendant's Rule 12(b)(6) motion, the Court "must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) ). But the Court cannot accept legal conclusions or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" as true. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. The Court may only consider "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." Hurd v. District of Columbia , 864 F.3d 671, 678 (D.C. Cir. 2017).
Plaintiff argues in Counts III and IV of her amended complaint that she satisfied all the requirements of the DCFMLA for sixteen weeks of continuous or intermittent paid family and medical leave at all relevant times during her employment with National. See Am. Compl. ¶¶ 203–31, ECF No. 12. She claims that National unlawfully interfered with her DCFMLA rights and retaliated against her for exercising those rights and for complaining to the District of Columbia Office of Human Rights ("DCOHR"). Id. ¶¶ 213, 228. Plaintiff alleges that her supervisor, Jeffrey Kanne, discouraged her from going on leave by telling her that doing so would negatively affect her career. Id. ¶ 213. According to plaintiff, Mr. Kanne continued to interfere with her paid leave rights and retaliated against her by denying her full compensation, demoting her, and eventually terminating her. Id. ¶ 228.
Defendant argues that plaintiff is not an eligible employee under the DCFMLA because she did not spend more than 50% of her working time in the District of Columbia. Def.'s Mot. Dismiss 6, ECF No. 14-1. DCOHR regulations state that an eligible employee for purposes of the DCFMLA is "an individual who works within the District, as described in subsection 1603.5." D.C. Mun. Regs., tit. 4, § 1603.1 (2019). Subsection 1603.5 states:
An employee shall be deemed to work within the District if the person spends more than fifty percent (50%) of his or her work-time working for the employer in the District, if the person is employed by the employer in more than one (1) location, or the employee is based in the District of Columbia and regularly spends a substantial part of his or her time working for the employer in the District of Columbia and does not spend more than fifty percent (50%) of his or her work-time working for the employer in any particular state.
Id. § 1603.5. Because plaintiff concedes that she spent most of her work-time working remotely from Florida,1 see Am. Compl. ¶¶ 10, 32, defendant moves to dismiss Counts III and IV pursuant to Rule 12(b)(6) for failing to satisfy every element of a DCFMLA claim. Def.'s Mot. Dismiss 6.
Plaintiff argues that she is an eligible employee because the DCFMLA has not provided guidance on dealing with remote employees and that it should be read to include her based on case law interpreting the FMLA. See Pl.'s Mem. Opp. Mot. Dismiss 6, ECF No. 17. She claims that the text of Subsection 1603.5 supports her interpretation because it does not explicitly state that employees must be "physically" working in D.C. See id. at 7. At worst, she argues, Subsection 1603.5 is ambiguous, so the Court should read it broadly and extend the DCFMLA's protective purpose to remote workers whose supervisors and co-workers are physically located in D.C. See id. at 8.
Contrary to plaintiff's contention that this is a case of first impression, see id. at 6, the court in Hopkins v. Grant Thornton International , 851 F. Supp. 2d 146 (D.D.C. 2012), aff'd sub nom., Hopkins v. Grant Thornton, LLP , 529 F. App'x 1 (D.C. Cir. 2013), dealt with the same issue. The plaintiff in Hopkins worked for the defendant's Alexandria, Virginia office and in Iraq as well. Id. at 156–57. He spent less than 30% of his work-time in D.C. Id. at 157. Even though he worked in D.C. for "periods of time," Judge Collyer held that "[t]his hardly qualifies him as an employee in the District of Columbia." Id. The D.C. Circuit affirmed Judge Collyer's dismissal of his DCFMLA claims. Hopkins v. Grant Thornton, LLP , 529 F. App'x 1, 3 (D.C. Cir. 2013)
The Court agrees with the holding in Hopkins and declines to add an exception for remote workers like Ms. Border. The text of Subsection 1603.5 leaves no room for ambiguity regarding remote workers—either employees spend more than 50% their work-time in D.C. or they do not. Plaintiff spent the majority of her work-time in Florida, so she is not an eligible employee under the DCFMLA. This holding applies to plaintiff's retaliation claim as well.2 Accordingly, the Court GRANTS defendant's motion to dismiss Counts III and IV pursuant to Rule 12(b)(6).
Count V
Defendant seeks to dismiss Count V for similar reasons: because plaintiff spent the majority of her work-time in Florida, the PPWFA should not cover her.3 But the PPWFA is different because it does not restrict its coverage to eligible employees in the same way that the DCFMLA does. Still, defendant seeks to dismiss Count V because other recently enacted D.C. statutes (including the DCFMLA, the Universal Paid Leave Amendment Act of 2016, and the D.C. Minimum Wage Revision Act) require that employees spend the majority of their work-time in D.C. to be covered. Def.'s Mot Dismiss 10. But with no clear authority instructing the Court to read the PPWFA in a way that effectively promulgates a regulation resembling Subsection 1603.5 of the DCFMLA,4 the Court declines to do so.
But defendant also argues that the Court should dismiss Count V because of the presumption against extraterritorial application of statutes. Def.'s Reply 6, ECF No. 18. At the federal level, the presumption is "that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application." Small v. United States , 544 U.S. 385, 388, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005). But some federal courts have applied this presumption to state antidiscrimination statutes by declining to extend their reach to nonresidents of that state. See, e.g., Hamade v. Valiant Gov't Servs., LLC , No. 5.18-CV-166-TBR, 2019 WL 1410904, at *4–5, 2019 U.S. Dist. LEXIS 52868, at *12-13 (W.D. Ky. Mar. 28, 2019) ; Blackman v. Lincoln Nat'l Corp. , No. 10-6946, 2012 WL 6151732, at *2–3, 2012 U.S. Dist. LEXIS 175021, at *8 (E.D. Pa. Dec. 10, 2012) ; Peikin v. Kimmel & Silverman, P.C. , 576 F. Supp. 2d 654,...
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