Carson v. Sim

• Decision Date: 22 April 2011
• Docket Number: Civil Action No. 04–1641 (RWR).
• Citation: 778 F.Supp.2d 85
• Parties: Rodney CARSON, Plaintiff,v.William SIM et al., Defendants.
• Court: U.S. District Court — District of Columbia

778 F.Supp.2d 85

Rodney CARSON, Plaintiff,

v.William SIM et al., Defendants.

Civil Action No. 04–1641 (RWR).

United States District Court, District of Columbia.

April 22, 2011.

E. Scott Frison, Jr., The Law Firm of E. Scott Frison, Jr., Washington, DC, for Plaintiff.Connie Nora Bertram, Cooley, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiff Rodney Carson brings this action against his former employer, the Potomac Electric Power Company (“Pepco”) and its President, William Sim, alleging in his amended complaint claims of discrimination and retaliation based on race, sex, and disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., intentional infliction of emotional distress, and breach of contract. The defendants have moved to dismiss Carson's amended complaint. Because Carson has stated a race discrimination claim regarding a promotion denied him in 2003, the motion will be denied as to that claim. As to the remaining claims, because Carson failed to exhaust his administrative remedies for some claims or otherwise failed to state a claim for which relief can be granted for others, and alleges yet other claims that are preempted by statute, those remaining claims will be dismissed.

BACKGROUND

Carson, a black male born in 1963, worked at Pepco for fifteen years and achieved a pay grade of 13. (Am. Compl. ¶ 5, Ex. 1 (“Carson Aff.”) ¶¶ 1, 11.) On several occasions, Carson was temporarily promoted to crew leader with a pay grade of 15, and to lead mechanic with a pay grade of 17. However, Carson never received a permanent promotion above pay grade 13. (Carson Aff. ¶¶ 12–14, 17–19.) According to Carson, when he was the second-most senior employee in his career field at Pepco and he had completed all the requirements to become a crew leader, he asked for the second time to be promoted and to enroll in the training program for lead mechanic. ( Id. ¶¶ 14–15, 18–20.) Pepco responded by allegedly refusing to assign Carson to any more temporary upgrades, while giving temporary upgrades to a woman with allegedly less experience and seniority. ( Id. ¶¶ 23–26, 28–30, 33–34.) Pepco also denied Carson's promotion and additional enrollment request. Instead, it promoted to the crew leader position a “non-minority” male allegedly with less qualifications, experience and seniority, and after enrolling him in the lead mechanic training program, promoted him to the lead mechanic position. ( Id. ¶¶ 21–22, 31–32.)

Carson filed a complaint with Pepco's Human Resources department, alleging that Pepco discriminated against him and subjected him to a hostile work environment. (Carson Aff. ¶ 35.) Carson alleges that three days after he filed that complaint, he was retaliated against by Pepco when a co-worker falsely reported that Carson did not complete an assignment correctly. ( Id. ¶ 36.) Carson also asserts that he suffered what he describes as an “emotional breakdown” that resulted in a “work related Depressive Disorder.” ( Id. ¶ ¶ 38–39.) In January 2004, Carson filed with the D.C. Office of Human Rights and the Equal Employment Opportunity Commission (“EEOC”) a charge of discrimination alleging that Pepco discriminated against him based upon race and sex, and retaliated against him. The charge of discrimination stated, in relevant part:

I, Rodney Carson, believe I have been discriminated against by my employer based on my race (Black) and sex (male) by being denied promotion, subjected to a hostile work environment, and being subjected to a loss of pay, leave, and overtime. I have also been subjected to retaliation, after I complained about the discrimination.

* * *

From 1/02 to 8/03, I functioned in a temporary upgrade in the position of Crewleader. However, when I officially applied for the promotion in 10/03, I did not get the job. Although there were two vacancies, the jobs were given to two less-qualified employees with less seniority. This was an intentional interference with employee and union contracts. On 8/15/03, the foreman (black male) told my co-worker that I thought I “knew everything” and that he has a “trick” for me. On 9/30/03, the general foreman (white male) told my foreman to “watch me.” And on 10/9/03, the foreman told two of my co-workers that he was trying to “get” me.

* * *

From 3/31/03 to 9/29/03, I was performing the job of Lead Mechanic-grade 17. On 9/29/03, I was told that I was no longer needed in that position and was sent back to the temporary Crewleader position. That same day a co-worker (black female) returned from a medical leave and was given the Mechanic position. Prior to her medical leave, she was in the Conduit Department-grade 13. I have more seniority than my female co-worker and should not have been removed from that position.

(Pl.'s Opp'n to Pepco's Mot. to Dismiss or for Summ. J. (“Pl.'s Opp'n”), Ex. 5 at 1–2.) In addition, according to Carson, Pepco terminated his employment in 2006 in retaliation for complaining about the discrimination and the hostile work environment and insisting that Pepco provide workers compensation. (Carson Aff. ¶ 2.)

Carson's amended complaint contains eight counts. Counts I and II allege claims of race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for failing to promote him to vacancies at pay grades 15 or 17 and thrice failing to enroll him in the training program for the lead mechanic, pay grade 17 position. They also allege a variety of other discriminatory incidents, such as an August 2003 rescission of a temporary promotion, several occasions between August and December 2003 where Pepco purportedly decided not to temporarily upgrade Carson, and Carson's supervisor wrongly accusing Carson of failing to complete a task correctly. The amended complaint also alleges claims of breach of contract for denying Carson medical and workers compensation benefits from 2003 through 2006 and for denying Carson entry into training programs that would have made him eligible for promotion (Counts III through V); disability discrimination in violation of the ADA by failing to accommodate him despite the fact that he was disabled by workplace stress (Count VI); intentional infliction of emotional distress (Count VII); and retaliatory discharge (Count VIII). The defendants have moved to dismiss or for summary judgment, arguing that all counts should be dismissed against defendant Sim because Carson does not allege any act or omission on behalf of Sim ¹; that judgment should be entered for the defendants on counts I and II because Carson did not exhaust his administrative remedies for the incidents not raised in his EEOC charge, and the remaining incidents are insufficient as a matter of law to support a claim of discrimination; that Counts III through V should be dismissed because breach of contract claims are preempted by a collective bargaining agreement (“CBA”) and Carson failed to exhaust the grievance and arbitration provisions of the CBA and failed to timely raise such claims; that Count VI should be dismissed for failure to exhaust administrative remedies because Carson did not file a charge of disability discrimination with the D.C. Office of Human Rights or the EEOC; that Carson's intentional infliction of emotional distress should be dismissed because it is preempted by the CBA and the D.C. Workers' Compensation Act, and that even if it were not preempted, the amended complaint fails to allege a plausible claim of intentional infliction of emotional distress; and that Carson's retaliatory discharge claim should be dismissed because the amended complaint fails to allege a plausible claim of retaliatory discharge. Carson opposes the defendants' motion.

DISCUSSION

A complaint can be dismissed under Federal Rule of Civil Procedure 12(b)(6) when the complaint fails to state a claim upon which relief can be granted. Peavey v. Holder, 657 F.Supp.2d 180, 185 (D.D.C.2009) (citing Fed.R.Civ.P. 12(b)(6)). “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint.” Smith–Thompson v. Dist. of Columbia, 657 F.Supp.2d 123, 129 (D.D.C.2009).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to relief that is plausible on its face.” ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The complaint must be construed in the light most favorable to the plaintiff and “the court must assume the truth of all well-pleaded allegations.” Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004). In deciding a motion brought under Rule 12(b)(6), a court does not consider matters outside the pleadings, but a court may consider on a motion to dismiss “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” Gustave–Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002), or “documents ‘upon which the plaintiff's complaint necessarily relies' even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss,” Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998)).I. DISCRIMINATION AND RETALIATION

In Count I of his amended complaint, Carson alleges that he applied for a promotion to pay grades 15 and 17 in 2003, but Pepco denied it on the basis of his race and his sex. (Am. Compl. ¶¶ 6–7, Carson Aff. ¶¶ 18–21.) In Count II, Carson alleges that Pepco...