Macintosh v. Building Owners and Managers Ass'n

• Decision Date: 11 January 2005
• Docket Number: No. CIV.A.03-1113.,CIV.A.03-1113.
• Citation: 355 F.Supp.2d 223
• Parties: Scott MACINTOSH Plaintiff, v. BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL; Henry Chamberlain; and Ron Burton Defendants.
• Court: U.S. District Court — District of Columbia

355 F.Supp.2d 223

Scott MACINTOSH Plaintiff, v. BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL; Henry Chamberlain; and Ron Burton Defendants.

No. CIV.A.03-1113.

United States District Court, District of Columbia.

January 11, 2005.

C. Michael Tarone, McDonald & Karl, Washington, DC, for Plaintiff.

Andrew J. Terrell, Jennifer S. Jackman, Whiteford, Taylor, & Preston, LLP, Washington, DC, for Defendants.

Jonathan C. Puth, Webster, Fredrickson & Brackshaw, Washington, DC, for Movant.

AMENDED MEMORANDUM OPINION¹

SULLIVAN, District Judge.

I. Introduction

Plaintiff Scott MacIntosh ("MacIntosh"), a Canadian citizen, brings claims against his former employer alleging violations of the D.C. Human Rights Act, violations of 42 U.S.C. § 1981, wrongful termination, and breach of contract. Defendants are Building Owners and Managers Association International ("BOMA"), an Illinois non-profit corporation authorized to do business in the District of Columbia, Henry Chamberlain ("Chamberlain"), Executive Director of BOMA, and Ron Burton ("Burton"), Vice President of Advocacy and Research for BOMA. The claims against Chamberlain and Burton are in their individual capacities.

II. Factual Background

Plaintiff was employed by BOMA from January 1999 to October 2002 pursuant to a TN visa, allowing plaintiff, a non-citizen, to work in the United States. While employed at BOMA, plaintiff, who was Director of Research, received two performance ratings of "very good" and one performance rating of "outstanding."

In January 2002, plaintiff learned that BOMA had failed to make its December 2001 401-K payment. Plaintiff brought this information to the attention of Defendant Ron Burton. Burton spoke with Ellen Hobby, Vice President of Finance and Administration, who informed Burton that BOMA had until the end of January to make its payment. Plaintiff, believing Hobby to be incorrect, found the Labor Department Regulation indicating that the payment should have been made the previous month and showed the regulation to Burton. In response, Burton sent an email to several employees explaining why the payments had not been made and asking that employees not spend their time listening to office gossip.

In February 2002, plaintiff sent Dora Blacknall, an African-American employee under his supervision, to Hobby to collect a paycheck for Sparkle Mitchell, another female African-American employee who had not been paid in a timely fashion under the Wage and Hour Laws. When she returned, Blacknall appeared upset. Plaintiff believes that Blacknall had been mistreated on account of her race. Plaintiff claims that no African-American employee in BOMA's Washington office has reached a rank higher than that of manager. He maintains that discrimination on the basis of race and gender were "hallmarks" of BOMA's employment practices.

Plaintiff sent Burton a written note complaining about the incident. Burton purportedly responded by accusing plaintiff of asserting that BOMA had committed improprieties in performing its contract with the EPA.

In late April 2002, Burton and Hobby approached plaintiff in his office and pressured him to fraudulently inflate BOMA's expenses under a government contract with the EPA. Plaintiff refused to comply with their request. On May 6, 2002, Defendant Henry Chamberlain fired plaintiff. BOMA's official statement indicated that plaintiff had resigned.

Plaintiff has alleged that the actions of Defendants BOMA, Chamberlain, and Burton violate both 42 U.S.C. § 1981 and the D.C. Human Rights Act, D.C.Code § 2-1402 et seq. (2001) (hereinafter "DCHRA") and constitute wrongful termination as well as breach of an employment contract.

BOMA and the individual defendants have each filed a Motion to Dismiss the complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).

III. Standard of Review

When considering a Motion to Dismiss, the Court construes the facts in the complaint as true and construes all reasonable inferences in the light most favorable to the plaintiff. See Swierkiewicz v. Sorema, 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). A Motion to Dismiss is granted and the complaint dismissed only if no relief could be granted on those facts. See Sparrow v. United Air Lines Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000) (stating that complaints "need not plead law or match facts to every element of a legal theory") (quoting Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000)).

IV. Discussion

The Court will address the federal claims first, and then the local claims, since the interpretation of the federal claims will impact the interpretation of the local claims.

A. Plaintiff's Section 1981 Claims

1. Section 1981 Claims Against BOMA

Plaintiff alleges that he was fired for protesting the treatment of female African-American employees at BOMA, a "protected activity" under § 1981. Compl. at ¶ 25.

BOMA's principal contention is that a plaintiff in a § 1981 action must be a member of a racial minority. However, courts have roundly rejected defendant's position. In DeMatteis v. Eastman Kodak Co., a white plaintiff brought suit under § 1981, alleging that he had been forced into early retirement after he sold his house, which was located in an area inhabited by many Kodak employees, to an African-American. 511 F.2d 306 (2d Cir.1975). Relying on a Supreme Court case in which the Court had held that a non-minority who attempts to vindicate the right of a member of a minority group has standing to sue under § 1982, the Second Circuit reversed the district court's grant of summary judgment in favor of the defendant. Id. at 312 (citing Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969)). Two other circuits have reached the same conclusion. See Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir.1986) (holding that the Caucasian wife of an Iranian man, who alleged that she had been fired because of the race of her husband, had a cause of action under § 1981); Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th Cir.1977) (holding that a white employee had standing under § 1981 to sue former employer for discharging him in alleged retaliation for the employee's protesting the supposedly discriminatory firing of an African-American co-worker).

Although the D.C. Circuit has not directly addressed the question of whether a non-minority plaintiff has standing to sue under § 1981, Magistrate Judge Facciola confronted the issue in Glymph v. District of Columbia, 211 F.Supp.2d 152 (D.D.C.2002). In Glymph, the district court had already rejected the defendants' partial Motion to Dismiss but, noting that the briefs were inadequate, referred the question of whether the plaintiff's race prevented her from stating a valid claim to Magistrate Judge Facciola. Citing DeMatteis and its progeny with approval, Magistrate Judge Facciola concluded that the best approach to allegations of racially motivated retaliatory action was "that the race-based element must lie in the protected activity, not in the race of the plaintiff." Id. at 154.

The Court sees no reason to question Magistrate Judge Facciola's reasoning, which is in accord with the three circuits that have addressed this precise issue. Because § 1981 appears not to preclude suit by a non-minority who attempts to vindicate the rights of a member of a racial minority, plaintiff has alleged enough in his complaint to survive a Motion to Dismiss. Therefore, Defendant BOMA's Motion to Dismiss Count II of the complaint is denied.

2. Section 1981 Claims against Chamberlain and Burton

Defendants Chamberlain and Burton argue, as did BOMA, that plaintiff's § 1981 claims fail as a matter of law because plaintiff is not a member of a racial minority. Having disposed on that argument previously, the Court turns to the question of whether the individual defendants can be sued under § 1981 in their individual capacities.

An examination of recent case law reveals that defendants in a § 1981 suit can be held liable in their individual capacities. See Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F.Supp.2d 27, 33 (D.D.C.1999); see also Al-Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3d Cir.1986) (holding that individuals personally involved in the discriminatory action may be held liable); Santiago v. City of Vineland, 107 F.Supp.2d 512, 541 (D.N.J.2000) (citing Sheppard and Al-Khazraji in holding defendants liable in their individual capacities). In Sheppard, the court noted that Title VII was intended "to address discriminatory conduct in the workplace only," that the language of Title VII covered only employers, and that the reach of § 1981 was clearly much broader. The court thus held that individual supervisors could be sued under § 1981, even if they could not be sued under Title VII. 59 F.Supp.2d at 33.

Even if, as the Third Circuit observed in Al-Khazraji, defendants must have "authorized, directed, or participated in the alleged discriminatory conduct" in order to be liable in their individual capacities, plaintiff has alleged enough facts in his complaint to survive a Motion to Dismiss for failure to state a claim. 784 F.2d at 518. Construing all inferences in favor of plaintiff, the Court denies Defendants Chamberlain and Burton's Motion to Dismiss Count II.

B. Plaintiff's District of Columbia Human Rights Act Claims

In Count I of his complaint, plaintiff brings a claim against the three defendants pursuant to the D.C. Human Rights Act, D.C.Code § 2-1401 et seq. (2001) ("DCHRA"). The individual defendants, Chamberlain and Burton, urge the Court to dismiss the DCHRA claims against them, arguing that supervisors cannot be individually liable for discrimination under the DCHRA.

In Wallace v. Skadden, Arps, Slate, Meagher & Flom, et al., 715 A.2d 873 (D.C.1998), the plaintiff, a former associate in a law firm, brought wrongful discharge and discrimination claims against the firm and three of the firm's...