Burnett v. Am. Fed'n of Gov't Emps.

• Decision Date: 22 April 2015
• Docket Number: Civil No. 13–02047 APM
• Parties: Larry Burnett, et al., Plaintiffs, v. American Federation of Government Employees, Defendant.
• Court: U.S. District Court — District of Columbia

102 F.Supp.3d 183

Larry Burnett, et al., Plaintiffs,

v.American Federation of Government Employees, Defendant.

Civil No. 13–02047 APM

United States District Court, District of Columbia.

Signed April 22, 2015

James S. Liskow, Decaro, Doran, Siciliano, Gallagher & Deblasis, LLP, Bowie, MD, for Plaintiffs.

Gony Frieder Goldberg, American Federation of Government Employees, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

Plaintiff Larry Burnett is an African American man and owner of Plaintiff Status Controls, Inc., a corporation that provided electrician services to Defendant American Federation of Government Employees (“AFGE”). Burnett and Status Controls filed suit against AFGE, alleging that AFGE subjected them to racial discrimination and a hostile work environment in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Status Controls also asserted claims of breach of contract, conversion, and tortious interference with contract and business relations. Burnett asserted an additional claim of intentional infliction of emotional distress. Before the court is Defendant's Second Motion to Dismiss all six counts in Plaintiffs' First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

For the reasons stated below, the court denies Defendant's motion as to all counts, except the two Section 1981claims against Burnett.

II. BACKGROUND

Plaintiffs' First Amended Complaint alleges the following. Burnett, an African American man and resident of Maryland, is the owner and chief operating officer of Status Controls, Inc. (“Status”), a Maryland corporation. Am. Compl., ECF No. 8 ¶¶ 1–2, 5–6. On November 3, 2011, AFGE retained Status to repair and test the elevators at its principal office in Washington, D.C., on “a time and materials basis.” Id.¶¶ 3, 9, 13–14. “Upon completion of the work to the elevators,” AFGE retained Status “to perform various other tasks on a time and materials basis,” including running cables, repairing back-up generators, removing chiller units, and renovating utility rooms. Id.¶ 15.

A. Alleged Workplace Hostility Because of Race

In late August 2012, AFGE employees began discriminating against Burnett and other Status employees because they were African American.Id.¶ 16. AFGE had retained Status to run feeder cables—a type of electrical wiring—to “chiller,” or cooling, units that were to be installed on the premises. Id.¶ 17. Because Status was completing the work, “[t]he building's chief engineer, a white man, explained to the project manager, another white man, that the feeder cables should not be added to the renovation[.]” Id.¶ 18. The project manager replied to the chief engineer “you don't wants [sic] those black people doing that work for you.” Id.¶ 19 (internal quotation marks omitted).

In September 2012, a white woman employed by AFGE confronted Burnett and another African American Status employee and asked “you people are still here?” Id.¶ 21 (internal quotation marks omitted). Later that month, the same AFGE employee again approached Burnett and asked “you black people are still here?” Id.¶ 22 (internal quotation marks omitted).

In late September or early October 2012, AFGE employees discussed how management did not like having Status or Burnett on site “due to Burnett's race.” Id.¶ 23. Around the same time, AFGE's project manager told another AFGE employee “[t]hats [sic] what you get with them black people working here,” referring to Status' workers. Id.¶ 24 (internal quotation marks omitted).

Also, in September 2012, the National Secretary/Treasurer of AFGE, an African American man, was assigned to oversee the AFGE offices in Washington, D.C. Id.¶ 28. The National Secretary/Treasurer called a meeting with the project manager, the chief engineer, and Burnett, where he explained that he was “the project manager's new boss and he did not want to see him going to the National President to complain about his new supervisor.” Id.¶ 29. After the National Secretary/Treasurer left the meeting, the project manager referred to the National Secretary/Treasurer as “one stupid n* * * * *.” Id.¶ 30 (internal quotation marks omitted). Approximately two months later, the National Secretary/Treasurer told Burnett and another African American Status employee that Burnett and Status should be “alert” as “[t]hese white people don't like you and are out to get you because you're black. Watch yourself.” Id.¶ 27 (internal quotation marks omitted). He further told Burnett that Burnett “was the only minority contractor [who was permitted] to work at the subject building.” Id.

In December 2012, AFGE asked Status to provide an estimate for a project to upgrade AFGE's security system. Id.¶ 34. Sometime later in December 2012, AFGE representatives notified Burnett that Status had not delivered the upgrade in a timely manner. Id.¶ 35. According to Plaintiffs, this was “incorrect as the upgrade had not been ordered.” Id.During the same meeting, AFGE representatives told Burnett to conduct his operations at night so that he and his “contract employees [would] be kept out of sight” because “all of Status' contract employees were black” and “their status as such scared people.” Id.¶ 36. Other employees of contractors and subcontractors working on the renovation, however, all of whom were white, were visible to the public and to AFGE management. Id.¶ 37.

B. Contract Interference and Termination

On January 1, 2013, AFGE and Status entered into a commercial agreement for independent contractor services. Id.¶ 40. Shortly thereafter, AFGE employees “conspired to terminate Status from its work, claiming that Burnett and the chief engineer conspired to steal copper

in the disposal of the chiller units,” even though industry standards required removal and disposal of the units.Id.¶ 41. AFGE “without cause” terminated its contract with Status and refused to pay Status for work performed or for materials purchased on behalf of AFGE. Id.¶¶ 42–44. In addition, AFGE refused to return Status' tools and equipment. Id.¶ 44.

Moreover, after terminating the contract, AFGE initiated a campaign to blame Status for the negligence of others. Id.¶ 45. In October 2012, Status began installing piping in the building's elevator shafts. Id.¶ 25. As part of this project, Status arranged for a pringle switch¹expert to perform certain maintenance tasks that Status was not qualified to perform. Id.¶¶ 25–26. Apparently, the pringle switch failed or malfunctioned, causing an explosion in the elevator shaft. Id.¶ 45. Because of “Burnett's race and AFGE's status as a minority-owned business,” AFGE blamed Status for the explosion, even though it knew that “this explosion was caused by another contractor.” Id.¶ 45. AFGE further expressed its racial animus by filing a claim with its insurance company that wrongly attributed fault to Status for the pringle switch explosion. Id.¶ 45. As a result of the false claim, Status had to respond to a subrogation claim and “its relations with its own insurance carrier have been interfered with and will potentially result in [an] increased premium and a different insurance rating[.]” Id.¶ 83.

III. LEGAL STANDARD

Pursuant to the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal,556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a complaint must contain “sufficient factual matter,accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,556 U.S. at 678, 129 S.Ct. 1937(emphasis added) (quoting Twombly,550 U.S. at 570, 127 S.Ct. 1955) (internal quotation marks omitted). A claim is facially plausible when “the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.(emphasis added) (citing Twombly,550 U.S. at 556, 127 S.Ct. 1955). Factual allegations that are “merely consistent with a defendant's liability ... stops short of the line between possibility and plausibility of entitlement to relief.” Id.(quoting Twombly,550 U.S. at 557, 127 S.Ct. 1955) (internal quotation marks omitted). While the factual allegations need not be “detailed,” the Federal Rules demand more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.(citing Twombly,550 U.S. at 555, 127 S.Ct. 1955). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.(citing Twombly,550 U.S. at 555, 127 S.Ct. 1955).

When assessing a motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6), the court must accept Plaintiff's factual allegations as true and “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)(citations omitted) (internal quotation marks omitted); accord Singh v. District of Columbia,881 F.Supp.2d 76, 81 (D.D.C.2012). The court shall not “accept inferences drawn by [the] plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations.” Hettinga,677 F.3d at 476(citations omitted).

IV. ANALYSIS

A. Violations of 42 U.S.C. § 1981(Counts III and IV)

Title 42 U.S.C. § 1981protects the right of “[a]ll persons within the jurisdiction of the United States” to “make and enforce contracts ...” without respect to race. 42 U.S.C.A § 1981(a) (2014). The current version of the statute defines “make and enforce contracts” to “include[ ] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.A § 1981(b) (2014). Any claim brought under section 1981“must initially identify an impaired ‘contractual relationship’ ... under which the plaintiff...