Bryant v. Pepco

• Citation: 730 F.Supp.2d 25
• Decision Date: 09 August 2010
• Docket Number: Civil Action No. 09-cv-1063 (GK)
• Parties: James K. BRYANT, Plaintiff, v. PEPCO, Defendant.
• Court: U.S. District Court — District of Columbia

730 F.Supp.2d 25

James K. BRYANT, Plaintiff,

v.PEPCO, Defendant.

Civil Action No. 09-cv-1063 (GK).

United States District Court, District of Columbia.

Aug. 9, 2010.

Nathaniel D. Johnson, Laplata, MD, for Plaintiff.

Susanne Harris Carnell, Lorenger & Carnell PLC, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff James K. Bryant, an African American man formerly employed by Defendant, Potomac Electric Power Company ("Pepco"), brings suit under Title VII of the Civil Rights Act, 42 U.S.C. § 1981. Plaintiff's Second Amended Complaint alleges that he was discriminated against based on race (Count I); retaliated against based on race (Count II); subjected to a hostile work environment based on race (Count III); constructively discharged based on race (Count IV); and discriminated against based upon mixed motives including race (Count V).

The matter is presently before the Court on Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) [Dkt. No. 16]. Upon consideration of the Motion, Opposition, Reply, Supplemental Opposition, and the entire record herein, and for the reasons set forth below, the Motion to Dismiss is denied as to Counts I and II and granted as to Counts III-V.

I. BACKGROUND

From April 1974 to March 2008, Plaintiff James K. Bryant was employed by Defendant Pepco. Since August 1993, he has worked as a "Lead Cable Splicer Mechanic." Second Am. Compl. ¶ 6 [Dkt. No. 14]. On June 1, 2004, Bryant was "upgraded" from "Pay Grade 19" ("PG-19") to "Pay Grade 20" ("PG-20"). Id. ¶ 9. As a PG-20, Bryant was entitled to two hours of guaranteed overtime pay per day and increased job responsibilities, including "managing the day to day operation; verifying timesheets for his subordinates record[ing] their work assignments using 'Maximo' software; and, [being] responsible for assigning work projects to the UGHV Leads Pay Grade 19." Id. ¶ 11.

Following his upgrade to PG-20, Bryant's relationship with Pepco changed. In December 2004, Bryant filed a grievance with his union alleging that Pepco had failed to adequately compensate him at PG-20 rates. Id. ¶ 7. Pepco agreed to provide the requested back pay in April 2005. Id. Bryant then filed a similar grievance in March 2006. Id.

In addition, on April 18, 2006 and August 9, 2006, Bryant took part in informal meetings between African American Leads and Pepco management. Id. ¶ 8. At these meetings the Leads "complained of the disproportionate work assignments between White ... Leads whom [sic] were consequently, provided a greater opportunity to earn overtime compensation than similarly situated African American ... Leads." Id. Bryant also alleges that he, along with other African American Leads, was unable to select his "on-call" assignments and that he specifically complained to Carol Murphy, his white supervisor, of discriminatory treatment toward African American Leads. Id. ¶ 19, 24.

On December 18, 2006-eight months following the first meeting with African American Leads and four months after the second-Bryant was informed by Carol Murphy that he had been demoted to PG-19. Id. ¶ 9.¹ The Second Amended Complaint alleges that Murphy was the "ultimate decision maker" regarding Bryant's employment at Pepco. Id. ¶ 12. Following the demotion, Bryant's duties were assigned to a white Lead, Loman Dudley. Id. ¶ 10.

After Plaintiff's demotion from PG-20 to PG-19-and he alleges, as a result of it-he developed a severe emotional disorder. Id. ¶ 13. Under the advice of his clinical psychologist, Dr. Rose, Bryant requested that he be allowed to return to Pepco following completion of his sick leave and be reassigned to a new department with new supervisors. Id. Bryant alleges that he is aware of two white Leads who were permitted to return to work at Pepco following medical leave. Id. ¶ 16; Pl's Decl. 2.

Pepco denied Bryant's request to be transferred. Rather than return to Pepco in his previous capacity at the PG-19 level, Bryant chose to retire with full benefits in March 2008. Second Am. Compl. ¶ 14.

On July 15, 2009 [Dkt. No. 4], Plaintiff amended his Complaint and on July 29, 2009 [Dkt. No. 5], Defendant filed a Motion to Dismiss, or in the Alternative, for a More Definite Statement. On September 11, 2009, this Court denied Defendant's Motion to Dismiss and granted his Motionfor a More Definite Statement [Dkt. No. 12]. Plaintiff filed a more definite statement in the form of a Second Amended Complaint on September 22, 2009 [Dkt. No. 14]. On October 6, Pepco filed the present Motion to Dismiss [Dkt. No. 16]. Plaintiff responded with a Brief in Opposition submitted on October 21, 2009 [Dkt. No. 17] to which Defendant filed a Reply on October 30, 2009 [Dkt. No. 19]. With leave of this Court, Plaintiff filed a Supplemental Opposition on November 16, 2009, the contents of which are almost wholly duplicative of Plaintiff's initial Opposition Brief [Dkt. No. 21].

II. STANDARD OF REVIEW

Under Fed.R.Civ.P. 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face to nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted) (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, the complaint must plead facts that are more than "merely consistent with" a defendant's liability; "the pleaded factual content [must] allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1940.

"[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with allegations in the complaint." Twombly, 550 U.S. at 563, 127 S.Ct. 1955. Under the standard set forth in Twombly, a "court deciding a motion to dismiss must ... assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 18 (D.C.Cir.2008) (internal quotation marks and citations omitted); see also Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C.Cir.2009) (declining to reject or address the government's argument that Iqbal invalidated Aktieselskabet ). In the Title VII context, a plaintiff need not plead all elements of a prima facie case in order to withstand a 12(b)(6) motion. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The prima facie elements are "an evidentiary standard," not a "pleading requirement," particularly in employment cases where discovery "unearth[s] relevant facts and evidence." Id. at 510-12, 122 S.Ct. 992. While Swierkiewicz relied in part on the now abandoned standard from Conley v. Gibson that a motion to dismiss should only be granted if a "plaintiff can prove no set of facts in support of his claim that would entitle him to relief," 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), Swierkiewicz's holding remains good law after Iqbal and Twombly.²See Winston v. Clough, 712 F.Supp.2d 1, n. 10, 2010 WL 1875626, n. 10 (D.D.C. May 11, 2010) (" Swierkiewicz ... is still good law."); Dave v. Lanier, 606 F.Supp.2d 45, 49 (D.D.C.2009) ("It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint."); accord Moore v. Metro. Human Serv. Dist., 2010 WL 1462224, at *3 (E.D.La. Apr. 8, 2010) ("[T]he current pleading standards for a Title VII case ... reconcile[s] Swierkiewicz, Twombly, andIqbal."); Gillman v. Inner City Broad., 2009 WL 300244 (S.D.N.Y. Sept. 18, 2009) (" Iqbal was not meant to displace Swierkierwicz."). But see, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009) ("because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz."). Based on the reasoning of these cases, and in accordance with Fed.R.Civ.P. 8(a)(2), this Court concludes that a Complaint needs to include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992.

III. ANALYSIS

A. Count III and Count V

Under Local Rule 7(b), if a plaintiff does not respond in his Opposition to a claim made in a defendant's Motion to Dismiss it may be treated as conceded. See Harris v. Koenig, 722 F.Supp.2d 44, 2010 WL 2560038 (D.D.C. June 10, 2010). In its pleadings, Defendant argued that Count III should be dismissed because (1) Plaintiff failed to adequately plead any of the required elements of a hostile work environment claim, except that he was a member of a protected class, and (2) that Plaintiff complained only of the kind of "ordinary work-related concerns" which fail to rise to the level of "hostile work environment claims" requiring "discriminatory intimidation, ridicule, and insult." Mem. of Law in Supp. of Pepco's Mot. to Dismiss [Dkt. No. 16-2] (citing Ramey v. Pepco, 468 F.Supp.2d 51, 57-58 (D.D.C.2006)). Plaintiff ignored these arguments and failed to respond to Defendant's challenges to Count III.

As to Count V, Plaintiff also failed to respond to Defendant's contentions that Count V is duplicative of Count I, and that Plaintiff failed to identify any specific facts regarding a mixed motive including race. See Mem. of Law in Supp. of Pepco's Mot. to Dismiss. Because Plaintiff failed to oppose Defendant's Motion to Dismiss these counts, Defendant's Motion to Dismiss is granted as to Counts III and V.³

B. Count I

Count I alleges that Bryant was discriminated against based on his race. To establish racial discrimination under Title VII a plaintiff must show that "(1) [he] is a member of a...