Lance v. Greyhound Lines, Inc., Civil Action No. 16–0040 (RC)

• Decision Date: 27 March 2017
• Docket Number: Civil Action No. 16–0040 (RC)
• Parties: Jimmy LANCE, Plaintiff, v. GREYHOUND LINES, INC., Defendant.
• Court: U.S. District Court — District of Columbia

244 F.Supp.3d 147

Jimmy LANCE, Plaintiff,

v.GREYHOUND LINES, INC., Defendant.

Civil Action No. 16–0040 (RC)

United States District Court, District of Columbia.

Signed March 27, 2017

Jimmy Lance, Washington, DC, pro se.

Sarah Elizabeth Henninger, Cori K. Garland, Littler Mendelson, P.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

This matter is before the Court on Defendant Greyhound Lines Inc.'s Motion to Dismiss Plaintiff's Complaint, ECF No. 11. For the reasons discussed below the motion will be granted in part and denied in part.¹

I. BACKGROUND

Greyhound Lines, Inc. ("Greyhound") employed plaintiff as a bus driver. See Compl. at 1; Def. Greyhound Lines, Inc.'s Mem. of P. & A., ECF No. 11–1 ("Def.'s Mem.") at 2. Plaintiff "was a member of the bargaining unit whose terms and conditions of employment are governed by a collective bargaining agreement (‘CBA’) between Greyhound and the Amalgamated Transit Union Local 1700 (‘Union’)." Def.'s Mem. at 2; see generally id. , Ex. 1 (Memorandum of Agreement).

According to Greyhound, "because of a documented poor safety record," Def.'s Mem. at 4, on July 9, 2015, plaintiff entered into a Last Chance Agreement:

[Plaintiff's] employment status will be at risk during the next one year from the date of this last chance agreement. Therefore, [plaintiff] must observe all rules of the Driver[']s Rule Book, and comply with all bulletins, directives and policies, and conduct himself in a professional and courteous manner at all times. Failure to adhere to any portion of these instructions ... will result in [his] discharge ... regardless of the type or severity of the discipline which would otherwise have been imposed for the infraction involved.

Compl., Ex., ECF No. 1–1 at 1.² Plaintiff signed the Last Chance Agreement, as did Mark Taylor on behalf of Greyhound and James Kennedy on behalf of the Union, "acknowledg[ing] that they ... read and underst[oo]d all conditions noted in the Agreement." Id. , Ex. at 1.

On August 13, 2015, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging retaliation and discrimination based on his sex occurring between November 1, 2014 and August 13, 2015. Id ., Ex. at 6 (Charge of Discrimination No. 570–2015–01678) ("First Charge"). He alleged:

On or about November/December 2014 my General Manager received a text photo from my phone that an acquaintance of mine had sent him. I also learned that another employee had mentioned the photo in the New York break room. I addressed this gentleman and nothing happened but someone called the union. From this time I have suffered retaliation and sexual orientation discrimination by my employer. My employer has falsely written me up for multiple safety violations and I believe it's to subject me to eventual wrongful termination. On or about July 9, 2015, my employer sent a letter to the union stating that if I get one more safety violation they are going to terminate me.

I believe I have been discriminated against based on my sex (sexual orientation) and in retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended.

Id. , Ex. at 6. The EEOC issued a right–to-sue notice on August 14, 2015. Id. , Ex. at 18 (Dismissal and Notice of Rights, EEOC Charge No. 570-2015-01678). Although the EEOC was "unable to conclude that the information [it] obtained establishes violations of the statutes," it advised plaintiff that, if he chose to file a lawsuit in federal court, he must do so within 90 days of his receipt of the notice. Id. , Ex. at 18.

On September 9, 2015, plaintiff met with Mark Taylor, Area City Manager, and Tammy Durham, Operational Supervisor. Id . at 2; see Def.'s Mem. at 5. He described the meeting as follows:

[On] Wednesday, September 9, 2015, I met with Mark Taylor, [M]anager[,] and Tammy Durham, Operational Supervisor, to talk about the EEOC complaints and why I did not come to them to address this issue. At some point, the manager became hostile, start[ed] yelling at me[ ] about all these accusations people are saying about me. While seated, he place[d] his hands on the arm of the chair and lift[ed himself] up, lean[ed] into my face, and repeated[,] "I am tired of these accusations, and yes!, we want to fire you, so if[ ] you get another violation or accident, we are going to fire you."

Compl. at 2.

On or about October 7, 2015, plaintiff sought legal assistance at the D.C. Employment Justice Center. See id. , Ex. at 39–40. Plaintiff informed its staff of the September 9, 2015 meeting with Mr. Taylor, and he was advised that he could "file a new EEO charge based on retaliation for engaging in protected EEOC activity (filing a charge)." Id. , Ex. at 40. In addition, regarding the First Charge, plaintiff was advised that he had "90 days to file suit in federal ... court," or by November 13, 2015. Id. , Ex. at 40.

On October 8, 2015, plaintiff filed a second charge of discrimination with the EEOC:

On about October 2014, I was hired as a Bus Driver for Greyhound. On August 13, 2015, I filed EEOC Charge 570–2015–01678. On September 9, 2015, Manager Mark Taylor called me in to his office and yelled at me regarding my EEOC charge and threatened to fire me. Since October 3, 2015, I have been taken off the schedule.

I believe I have been retaliated against for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended.

Id. , Ex. at 45 (Charge of Discrimination No. 570–2015–00051) ("Second Charge"). The EEOC issued a right-to-sue notice on October 19, 2015. Id. , Ex. at 25 (Dismissal and Notice of Rights, EEOC Charge No. 570–2015–00051).

Plaintiff submitted his resignation on or about October 31, 2015. He filed this lawsuit on December 23, 2015, and demands, among other relief, "financial compensation for lost income ... and stress." Id . at 5.³

II. DISCUSSION

A. Dismissal Under Federal Rule of Civil Procedure 12(b)(6)

Greyhound construes the complaint, see Def.'s Mem. at 1, as one raising five claims: (1) discrimination based on sexual orientation in violation of 42 U.S.C. § 2000e–2 ; (2) retaliation in violation of 42 U.S.C. § 2000e–3 ; (3) wrongful termination in violation of public policy; (4) violation of Section 7 of the National Labor Relations Act ("NLRA"), see 29 U.S.C. § 157 ; and (5) constructive discharge in violation of Section 8(a)(3) of the NLRA, see 29 U.S.C. § 158(a)(3). It moves to dismiss all of plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state claims upon which relief can be granted. See Def.'s Mem. at 7–8.

A plaintiff need only provide a "short and plain statement of [his] claim showing that [he is] entitled to relief," Fed. R. Civ. P. 8(a)(2), and "give [s] the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ) (internal quotation marks omitted). A Rule 12(b)(6) motion tests the legal sufficiency of a complaint, Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002), and "not whether the plaintiff will prevail on the merits," Woodruff v. DiMario , 197 F.R.D. 191, 193 (D.D.C. 2000). In considering such a motion, the "complaint is construed liberally in the plaintiff['s] favor, and [the Court] grant[s] plaintiff[ ] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994). "[T]he [C]ourt need not accept inferences drawn by plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint," id. or "a legal conclusion couched as a factual allegation," Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted), or "naked assertions devoid of further factual enhancement," id.

A complaint survives a motion under Rule 12(b)(6) only if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Pro se complaints are "held to less stringent standards than formal pleadings drafted by lawyers," Erickson , 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks and citation omitted), and the Court considers the allegations set forth in plaintiff's complaint and in his other "filings, including filings responsive to a motion to dismiss," Brown v. Whole Foods Mkt. Grp., Inc. , 789 F.3d 146, 152 (D.C. Cir. 2015) (citing Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999) ). Nevertheless, even a pro se complaint "must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of misconduct’ " by the defendant. Atherton v. District of Columbia Office of the Mayor , 567 F.3d 672, 681–82 (D.C. Cir. 2009) (quoting Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 ).

B. Discrimination and Retaliation Claims

Under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), see 42 U.S.C. § 2000e et seq. , an employer may not "discriminate against an individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's ... sex. " 42 U.S.C. § 2000e–2(a)(1). An aggrieved employee may file a charge of discrimination with the EEOC, see 42 U.S.C. § 2000e–5(b), and if subsequently he chooses to file a lawsuit in federal district court, he must do so within 90 days of receipt of the EEOC's right-to-sue notice, see 42 U.S.C. § 2000e–5(f)(1). It is presumed that the EEOC mails each notice on the date of its issuance, and that the aggrieved employee receives the notice within three days. See Baldwin Cnty. Welcome Ctr. v. Brown , 466 U.S. 147, 148 n.1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam); Jideani v. Washington Metro. Area Transit Auth. , 979 F.Supp.2d 77,...