Creese v. Dist. of Columbia

• Decision Date: 20 November 2017
• Docket Number: Civil Action No. 16–2440 (RMC)
• Citation: 281 F.Supp.3d 46
• Parties: Darnelle CREESE, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

281 F.Supp.3d 46

Darnelle CREESE, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 16–2440 (RMC)

United States District Court, District of Columbia.

Signed November 20, 2017

Jeanett P. Henry, Silver Spring, MD, for Plaintiff.

Christina Okereke, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Darnelle Creese complains that the District of Columbia Department of Corrections fired him because he was not "manly" enough to satisfy the leader of his training class. The District moves to dismiss. However, it has long been the law that gender stereotyping can violate Title VII, 42 U.S.C. §§ 2000e–2 et seq. Mr. Creese also sues his supervisor, Dr. Willie Barr, personally, alleging that he is responsible for violating Mr. Creese's rights under the Equal Protection Clause of the U.S. Constitution. Dr. Barr moves to dismiss, but Mr. Creese makes out a legitimate claim that cannot be dismissed at this time. Finally, however, the allegations that D.C. and the supervisor are both responsible for intentional infliction of emotional distress will be dismissed, because they are insufficient as a matter of law and because Mr. Creese failed to provide advance notice of his claim for damages to the Mayor as required by the D.C. Code.

I. BACKGROUND

The following facts are taken from the Complaint and are accepted as true in the current posture of the case. See Atherton v. District of Columbia Office of the Mayor , 567 F.3d 672, 681 (D.C. Cir. 2009). Mr. Creese was employed at the D.C. Department of Corrections (DOC) from October 1, 2013 until his employment was terminated on December 30, 2013. Compl. [Dkt. 1] ¶ 4. Mr. Creese began his employment at DOC's Basic Correctional Training Program. Id. ¶ 10. At the relevant time, Dr. Willie Barr "was a supervisor and training specialist with DOC." Id. ¶ 6.

When getting fitted for his uniform, Mr. Creese questioned whether a shirt was too large for him and Dr. Barr remarked " ‘he's not getting that little shirt. I know he wants that but he's not getting that.’ " Id. ¶ 11. Mr. Creese understood the comment to imply that men should not wear close-fitting shirts. Id. About two weeks later, Dr. Barr approached Mr. Creese "during ‘formation’ " and said " ‘[n]o pretty boys needed in jail, so you need to take your earrings out. No beard, need to be clean-shaven.’ " Id. ¶ 12. Although other men in the training program had beards, long hair, or wore earrings, Dr. Barr did not comment on their appearance, but made repeated comments to Mr. Creese. Id. ¶ 13. Additionally, when Mr. Creese was injured during one of the physical re-enactments in the training program, "Dr. Barr ignored him and did not ensure that necessary paperwork was completed to document Creese's injuries." Id. ¶ 14. Dr. Barr was more attentive to the needs of other recruits. Id. ¶ 15.

Mr. Creese excelled during the training program and was ultimately selected by his classmates to be their class speaker at graduation. Id. ¶¶ 16, 19. Based on Dr. Barr's demeanor after the vote, Mr. Creese believed that Dr. Barr was not pleased with the selection. Id. ¶ 19. Mr. Creese obtained permission from a training supervisor to bring a personal flash drive to the office to work on his graduation speech; however, once he had completed the speech and printed a copy, "he forgot to remove the flash drive f[rom] the DOC's computer." Id. ¶¶ 20–21.

Mr. Creese gave a few of his classmates "hair makeovers" before graduation which Dr. Barr complimented until he learned they were done by Mr. Creese, at which point he "said ‘You’ and abruptly walked away." Id. ¶ 22. After the graduation ceremony on December 16, 2013, Dr. Barr approached Mr. Creese and said " ‘remember Creese, you can still be fired even when you go over to the jail.’ " Id. ¶ 24.

Mr. Creese started his full-time assignment at the D.C. Jail around December 17, 2013. Id. ¶ 25. He worked for approximately two weeks without incident, but on December 30, 2013 "two supervisors came to roll call and escorted Creese to the office where he was given a letter of termination, effective immediately. When Mr. Creese inquired about the reason for his termination, the supervisors refused to tell him." Id. ¶¶ 26–27. "Creese later learned that he was terminated because he brought his personal flash drive into the workplace." Id. ¶ 30. Violations of the DOC's electronics policy generally result in a recruit receiving a single demerit and it takes five demerits to terminate a recruit's employment. Id. ¶ 32. This policy was not followed; instead, Mr. Creese never received a written or oral warning, let alone a demerit, before his termination. Id. ¶ 33. Mr. Creese alleges that his flash drive, which he believed he had lost, was found in a training facility computer and given to Dr. Barr, who looked at the contents, which included "a nude photograph of Creese from a photo shoot (but without revealing private anatomy) and photographs of other men." Id. ¶ 21, 31.

Mr. Creese filed a complaint with the D.C. Office of Human Rights (OHR) on March 24, 2014 alleging discrimination based on sex. Id. ¶ 7. The complaint was also cross-filed with the U.S. Equal Employment Opportunity Commission (EEOC). Id. On September 15, 2016 the EEOC provided Mr. Creese with a Notice of Right to Sue, id. ¶ 8, and Mr. Creese filed the Complaint in this case on December 14, 2016. See id. Defendants moved to dismiss for failure to state a claim and failure to comply with statutory notice provisions related to the claim of intentional infliction of emotional distress. See Defs.' Mot. to Dismiss (Mot.) [Dkt. 6].¹ Mr. Creese opposed, see Mem. of P.& A. in Supp. of Opp'n to Defs.' Mot. to Dismiss [Dkt. 8–1], and Defendants replied. See Reply Mem. of P.& A. in Supp. of Defs.' Mot. to Dismiss [Dkt. 12]. The motion is ripe for review.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) requires a complaint to be sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Although a complaint does not need to include detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. A complaint must contain sufficient factual matter to state a claim for relief that is "plausible on its face." Id. at 570, 127 S.Ct. 1955. When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "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. A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. But a court need not accept as true legal conclusions set forth in a complaint. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007). Generally, when a court relies upon matters outside the pleadings, a motion to dismiss must be treated as one for summary judgment and decided under Rule 56. See Fed. R. Civ. P. 12(d). "However, where a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment." Nat'l Shopmen Pension Fund v. Disa , 583 F.Supp.2d 95, 99 (D.D.C. 2008).

III. ANALYSIS

A. Jurisdiction and Venue

The Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343(b), as two of the claims—Title VII and Equal Protection under the Fifth Amendment to the U.S. Constitution—arise under the Constitution or laws and treaties of the United States. Pursuant to 28 U.S.C. § 1367, the Court also has supplemental jurisdiction over Mr. Creese's intentional infliction of emotional distress claim. Venue is proper in the District Court for the District of Columbia because "a substantial part of the acts and omissions that gave rise to the Complaint" occurred within the District. Compl. ¶ 3; see also 28 U.S.C. § 1391(b)(2).

B. Motion to Dismiss—12(b)(6)

Mr. Creese complains that DOC and Dr. Willie Barr discriminated against him on the basis of his sex (male) and caused his termination. Count I alleges that the District of Columbia discriminated against Mr. Creese on the basis of his sex (male), by stereotyping him as insufficiently manly, in violation of Title VII; Count II alleges that Dr. Barr discriminated against him on the basis of his sex (male) in violation of equal protection guaranteed to D.C. employees by the Fifth Amendment;² and Count III alleges that both Defendants engaged in extreme and outrageous conduct and seeks damages for intentional infliction of emotional distress. The Court will address each Count in turn.

1. Count I—Title VII

Count I alleges that Defendant DOC "[b]ecause of Plaintiff's sex, including Defendant's perception that Plaintiff did not conform to gender stereotypes of how men should dress and conduct themselves, ... terminated his employment on December 30, 3013." Compl. ¶ 42. The Supreme Court long ago ruled that gender stereotyping can become...