Slate v. Pub. Defender Serv. for D.C.

• Decision Date: 02 April 2014
• Docket Number: Civil Action No. 13–00798BAH
• Citation: 31 F.Supp.3d 277
• Parties: Gregory Slate, Plaintiff, v. Public Defender Service for the District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

31 F.Supp.3d 277

Gregory Slate, Plaintiff
v.
Public Defender Service for the District of Columbia, et al., Defendants.

Civil Action No. 13–00798BAH

United States District Court, District of Columbia.

Signed April 2, 2014

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Gregory A. Slate, Washington, DC, pro se.

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Stanley E. Woodward, Jr., Akin Gump Strauss Hauer & Feld LLP, Karl A. Racine, Venable LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Plaintiff Gregory Slate, who is proceeding pro se, was employed for less than two years at the Public Defender Service for the District of Columbia (“PDS”), and has now filed a lawsuit against PDS and his former PDS supervisor, Rachel Ann Primo, claiming discrimination on the basis of his race and sex, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the District of Columbia Human Rights Act of 1977 (“DCHRA”), D.C.Code §§ 2–1401.01 et seq ., as well as various common law claims. See Notice Filing Redacted Doc. Ex. 1 (“Compl.”) ¶¶ 127–214, ECF No. 15–2.¹ Pending before the Court are both defendants' motions to dismiss for failure to state a claim upon which relief may be granted, under Federal Rule of Civil Procedure 12(b)(6). PDS' Mot. Dismiss, ECF No. 17; Primo's Mot. Dismiss (“Primo's Mem.”), ECF No. 22. For the reasons set forth below, the defendants' motions to dismiss are granted.

I. BACKGROUND

A. Allegations in the Plaintiff's Complaint

As set forth in the Complaint, the plaintiff is a formerly licensed private detective who was employed by PDS as a felony–1 investigator beginning in August 2008. Compl. ¶¶ 1, 6, 11. PDS is a federally funded, independent legal organization that provides legal representation to persons who are financially unable to obtain adequate representation. Id. ¶ 2; PDS' Mem. Supp. Mot. Dismiss. (“PDS' Mem.”) at 2, ECF No. 19. According to the plaintiff, he was informed at the time of his hiring that “if [the plaintiff] accepted PDS's offer of employment,” he “would only be terminated if the United States Attorney's Office for the District of Columbia or the District of Columbia Attorney General's Office developed a line of cross examination that rendered [the plaintiff's] testimony ineffective or adverse.” Compl. ¶ 9. The plaintiff accepted the offer of employment, id. ¶ 10, and never signed an “at-will” contract. Id. ¶ 13.

For the duration of his employment at PDS, the plaintiff was supervised by Primo. Id. ¶ 14. The plaintiff alleges that “[o]ver the course of [his] employment, he was subjected to a long series of overtly sexist, racist, and religious harassment,” id. ¶ 18, including that Primo “would call Plaintiff a ‘pussy’ or a ‘faggot’ and question

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his manhood,” id. ¶ 25; Compl. (unredacted) ¶ 63, and also refer to men using a number of similarly crude references, as well as using racial slurs in reference to African–Americans, Compl. ¶¶ 28, 42, 43, 46, Hispanic people, id. ¶ 28, and “Muslims, Arabs, and anyone from a middle-eastern country,” id. ¶¶ 28, 80.

On May 30, 2009, the plaintiff and Primo were involved in a car accident. Id. ¶¶ 82–87. According to the plaintiff's version of these events, after work, the plaintiff drove Primo towards Arlington, Virginia, in her car. Id. ¶¶ 82–84. While en route, Primo, who was the passenger, somehow “caused her vehicle to veer off the road,” and collide with a pole. Id. ¶ 86. After the accident the plaintiff, who alleges that he was injured, accepted a ride from a passing motorist, while Primo remained with the vehicle “to file a police report.” Id. ¶¶ 87–89. Approximately five weeks after the car accident, on July 9, 2009, the plaintiff claims that he filed an internal formal grievance against Primo, alleging “that he was being discriminated against based on his race, color, sex, and religion.” Id. ¶ 91. At some unspecified point thereafter, the plaintiff states that PDS no longer permitted him on the premises, id. ¶ 93, and prevented him from communicating with PDS employees, using his PDS identification or his PDS email account, or working on any PDS cases, id. ¶¶ 93, 95–97.

The plaintiff claims that “in retaliation for Plaintiff's complaints” he was instructed to “travel to 3 different police stations ... to inquire if a warrant had been issued for Plaintiff's arrest” and cautioned that he would be placed on unpaid leave until he could “demonstrate there was no warrant for his arrest by a date certain.” Id. ¶¶ 98–99. The plaintiff alleges that he made such demonstration but that, nevertheless, a PDS employee placed a call to “a law enforcement official in Virginia and insisted that he charge Plaintiff with leaving the scene of an accident.” Id. ¶¶ 100–01. The plaintiff contends that he was subsequently placed on unpaid leave, id. ¶ 102, and terminated by PDS “on the pretext that he was ‘vulnerable to being impeached upon testifying.’ ” Id. ¶ 108. He further alleges that “[n]either the United States Attorney's Office for the District of Columbia or the District of Columbia Attorney General's Office ever developed a line of cross-examination that rendered Plaintiff's testimony ineffective.” Id. ¶ 110. He additionally claims that PDS “ultimately claimed that Plaintiff was barred from performing his job because of a ‘website’ about Plaintiff that PDS knew about before Plaintiff was hired.” Id. ¶ 103.

The plaintiff states that, “[o]n April 15, 2009,” he filed “a Charge of Discrimination with the Equal Employment Opportunity Commission ... alleging discrimination and retaliation.” Id. ¶ 118. At some unspecified time after his termination and filing of a formal EEO complaint, the plaintiff claims that he “submitted an application to PDS for certification as a [Criminal Justice Act (“CJA”) ] investigator,” id. ¶ 120, but was denied admission into the program on April 28, 2010, “in retaliation” for his protected activity, id. ¶ 121. Also “in retaliation for his engaging in protected activity,” id. ¶¶ 123, 125, the plaintiff claims that he was not hired at some unspecified time by PDS for positions at PDS as a staff investigator and an eligibility examiner, for which he had submitted applications on April 30 and July 25, 2010, respectively, id. ¶¶ 122, 124.

The plaintiff filed a second EEO complaint on November 17, 2010, “stating that PDS had engaged in further retaliation by failing to certify him as a CJA investigator, denying him a position as a staff investigator,

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and denying him a position as an eligibility examiner.” Id. ¶ 126.

The plaintiff filed the instant suit on May 30, 2013. See generally Complaint (“Compl.(unredacted)”), ECF No. 1.

B. Factual Matters Referenced In The Complaint

The plaintiff expressly refers to, but fails to candidly represent, several documents and events in his Complaint, including his EEO complaint allegedly filed on “April 15, 2009,” id. ¶ 118; PDS' letter placing the plaintiff on leave subsequent to the May 30, 2009 car accident, id. ¶¶ 98–99; PDS placing the plaintiff on unpaid leave on July 15, 2009, id. ¶ 102; the criminal charge against the plaintiff following his car accident, see id. ¶ 101; and the plaintiff's termination by PDS on an unspecified date, id. ¶ 108. The documents related to these events directly bear upon the plaintiff's allegations, as evidenced by the Complaint's reference to them, but they are not attached to the Complaint. Nonetheless, the defendants have submitted documents related to these events, and the plaintiff in his opposition has raised no objection to their submission or to their authenticity. See generally Pl.'s Opp'n Def. Primo's Mot. Dismiss & Mot. File Opp'n Def. PDS' Mot. Dismiss (“Pl.'s Opp'n”), ECF No. 27.

As a general matter, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). This conversion rule need not be triggered, however, when a court considers “the facts alleged in the complaint, documents ... incorporated by reference in the complaint ... 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 America, 624 F.Supp.2d 45, 46 (D.D.C.2009) (citations and internal quotation marks omitted); see also Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007) (court may consider on a motion to dismiss “facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice” (quoting Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C.Cir.2006) )). Courts have considered documents attached to motions to dismiss and opposition papers without converting the motion into one for summary judgment when the documents were referenced in the Complaint and were central to the plaintiff's claims. ...