Clay v. Howard Univ., Civil Action No. 13-cv-1464 (TSC)

CourtUnited States District Courts. United States District Court (Columbia)
PartiesLINDA CLAY, Plaintiff, v. HOWARD UNIVERSITY et al., Defendants.
Decision Date28 May 2015
Docket NumberCivil Action No. 13-cv-1464 (TSC)

LINDA CLAY, Plaintiff,
HOWARD UNIVERSITY et al., Defendants.

Civil Action No. 13-cv-1464 (TSC)


May 28, 2015


Plaintiff Linda Clay asserts statutory and tort claims against her former employer and supervisor, all related to the end of her employment in the Human Resources department at Howard University. Defendants Howard University and James Jones moved to dismiss Clay's complaint, and Clay moved orally to amend the complaint at argument on the motions to dismiss on February 11, 2015. In an order ("Order," ECF No. 21) and accompanying opinion ("Opinion," ECF No. 20) dated March 11, 2015 the Court granted Plaintiff's oral motion for leave to amend and granted Jones' motion to dismiss Count III of the Complaint, which alleged a violation of the D.C. Human Rights Act ("DCHRA") against him individually. The Court denied without prejudice the balance of Defendants' motions with permission to renew those motions in response to Plaintiff's amended complaint. Plaintiff filed an amended complaint, and the Defendants' renewed motions to dismiss are now before the court. Because Plaintiff has not alleged a wrongful discharge in violation of public policy but has adequately alleged violations of Title VII, the DCHRA, and the Equal Pay Act, the Court GRANTS Jones' motion in full and GRANTS IN PART and DENIES IN PART Howard's motion.

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The factual landscape of Plaintiff's complaint is set forth in the court's March 11 opinion. The court here notes particular allegations which have changed from the original complaint. Plaintiff now alleges that she "refused to ignore falsified and fraudulent documents that came into her possession, when those documents were, and the concealment of such information would have been, a violation of federal and D.C. law," and cites specific statutes she believes may have been violated. (Am. Compl. ¶¶ 4, 29-30). She now specifically alleges that she was "concerned about her own criminal liability" as an aider and abettor of the suspected fraud if she did not report her suspicions. (Am. Compl. ¶ 61). She notes that Howard University, through its President and Directors, is required to furnish an annual financial report to Congress, and that she believed the suspected fraud might impact the truthfulness of that annual report. (Am. Compl. ¶¶ 18, 65).

The most significant defect in Plaintiff's first complaint was the entanglement of her Title VII and DCHRA claims with her wrongful discharge claim. (Opinion at 8). In her Amended Complaint, Plaintiff has re-pleaded the two sets of claims to specify that they cover separate conduct that proceeded in parallel. The wrongful discharge claim relates only to the decision to remove Plaintiff "from her Senior Benefits Analyst position under the false pretense of a [Reduction in Force]...and constructively demoting her to the HR Generalist position." (Am. Compl. ¶ 66). The gender discrimination claim brought under Title VII and the DCHRA now purports to relate to other conduct: "Throughout her employment, Ms. Clay and other females were held to higher standards, treated with less respect, and were promoted less quickly and often than their male counterparts." (Am. Compl. ¶ 71). Howard's decision not to rehire

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Plaintiff for her former position is now alleged to be, in the alternative, gender discrimination or retaliation for Plaintiff's EEOC charge. (Am. Compl. ¶¶ 72, 77, 93, 96).


A motion to dismiss under Rule 12(b)(6) 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) (internal quotation marks and citation omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where "recovery is very remote and unlikely[,]" the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action[.]" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013). In testing the complaint's sufficiency, a court may "consider only 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." E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

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In addition to the substantive arguments addressed below, Defendant Jones raises two preliminary procedural arguments. Jones first argues that the court should not consider Plaintiff's Amended Complaint because Plaintiff did not file a written motion for leave to amend. (Jones Renewed Mot. at 5-7). Jones correctly notes that it would have been within the court's discretion to deny Plaintiff the opportunity to amend because the motion was belated and was not made in writing. Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006); Benoit v. U.S. Dep't of Agriculture, 608 F.3d 17, 21 (D.C. Cir. 2010). In both of these cases the plaintiff made only a conditional statement that amendment could cure perceived defects; in this case, Plaintiff expressly requested "leave to amend" at oral argument. (Mot. Hr'g Tr. 60:18-61:1 Feb. 11, 2015). That the court could have ruled one way does not preclude the court from exercising its discretion in ruling to the contrary. The distinct and precise nature of Plaintiff's oral request for relief distinguishes it from the instances where district judges permissibly declined to grant leave to amend.

Jones also argues that some of the amended allegations are so inconsistent with the original allegations that the court should not afford them the presumption of truth. (Jones Renewed Mot. 8-10). The court does have the authority to strike obviously "false and sham" allegations that have changed from the complaint to the amended complaint. See, e.g., Bradley v. Chiron Corp., 136 F.3d 1317, 1324-25 (Fed. Cir. 1998) (district court did not abuse discretion in striking allegations from amended complaint which directly contradicted allegations from initial complaint). "Reconcilable small variations are acceptable," but direct contradiction is not. Hourani v. Mirtchev, 943 F. Supp. 2d 159, 171 (D.D.C. 2013). However, Jones' argument that the changes in Plaintiff's amended complaint rise to the level of direct contradiction overstates

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the changes Plaintiff has made. Jones argues that "alleging a hypothetical possibility of 'potential' fraud is not the same now [sic] alleging that [Plaintiff] 'knew' there was fraud," and goes on to cite to particular changes in the Amended Complaint which reflect Plaintiff's increased certainty that there was indeed a fraud being perpetrated. (Jones Renewed Reply at 11). This change falls shy of the 180 degree change in the allegations by the Plaintiffs in Bradley, 136 F.3d at 1325-26 (adding a new allegation in a contract dispute that plaintiff did not receive explanation of the contract before signing it), and Hourani, 943 F. Supp. 2d at 171-72 (excising references to a defendant as a government agent) and does not fundamentally change the nature of Plaintiff's allegations.

Having dealt with these preliminary matters, the court proceeds to determine whether Plaintiff's Amended Complaint adequately states any claims for relief.

a. Count I: Wrongful Discharge in Violation of Public Policy

The tort of wrongful discharge in violation of public policy is a limited exception to the general rule in the District of Columbia that an at-will employee may be discharged "at any time and for any reason, or for no reason at all." Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991). Though the cause of action was initially limited only to discharge for refusal to violate the law, the D.C. Court of Appeals affirmed in Carl v. Children's Hosp., 702 A.2d 159, 160 (D.C. 1997) that the exception was subject to further expansion. To state a claim for wrongful discharge in violation of public policy, the plaintiff must point to "some identifiable policy that has been 'officially declared' in a statute or municipal regulation, or in the Constitution," and a "close fit between" the policy "and the conduct at issue in the allegedly wrongful termination." Davis v. Cmty. Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709-

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10 (D.C. 2013) (citing Carl and Fingerhut v. Children's Nat'l Med. Ctr., 738 A.2d 799, 803-04 (D.C. 1999)).

The court invited Plaintiff to attempt to disentangle her claims under Title VII and the DCHRA from her wrongful discharge claim because, as originally pled, the...

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