Wise v. Ferriero

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARLON WISE,

Plaintiff,

v. Civil Action No. 10-1899 (JEB)

DAVID S. FERRIERO,

Archivist of the United States National

Archives and Records Administration,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Marlon Wise is a black employee of the U.S. National Archives and Records

Administration. He contends in this lawsuit that NARA discriminated against him on the basis

of race and retaliated against him for engaging in protected activity through a series of incidents

that took place over the course of nearly five years. Defendant David Ferriero, the Archivist of

NARA, has now filed a Motion to Dismiss or in the Alternative for Summary Judgment. Much

of the Motion concerns discrete claims that the Court determines — and Wise concedes — were

not raised in his Second Amended Complaint. The Court finds, however, that the two causes of

action that Plaintiff has in fact brought in this case — a discrimination-based hostile-work-

environment claim and a retaliation-based hostile-work-environment claim — do survive the

present Motion.

I. Background

According to Plaintiff’s Second Amended Complaint, which the Court must credit at this

stage, Wise has been employed by NARA since October 2001. Second Am. Compl., ¶ 4. The

events at issue in this case began in 2006 when Carlton Barnes, a black supervisor who was not

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then in Wise’s chain of command, called him “a punk ass nigger” in the presence of Clarence

Simmons, the white supervisor of both Wise and Barnes. See id., ¶ 6. Simmons did not address

Barnes’s use of the racial slur. See id., ¶ 8. Wise subsequently reported the incident to

Simmons’s supervisor, Doris Hamburg, and after Hamburg too failed to address the episode, he

reported it to her supervisor, Michael Kurtz. See id. No one took action. See id.

After “Barnes learned that . . . Wise had reported the name calling incident to his

supervisors,” he twice sought to have Wise disciplined relating to “phony allegations of wrong-

doing.” Id., ¶ 9. The Human Resources department declined to discipline Wise, but did not

admonish Barnes for having made allegedly false accusations. See id.

“The following year,” Wise applied for promotions to two vacant positions in his work

unit. See id., ¶ 10. After discovering that Wise was seeking these promotions, Barnes

purportedly told Simmons that he “would rather resign his position with the federal government

than to see [Wise] promoted.” Id. Barnes was subsequently transferred to a new position and

thereby became the selecting official for both of the vacancies Wise had applied to fill. See id., ¶

11. Although he contends that he was “the most experienced applicant and the employee with

the most . . . Outstanding evaluations,” Wise was not selected for either position. See id.

By virtue of this transfer, Barnes also became Wise’s direct supervisor. See id., ¶ 13.

Upon learning that Barnes was to supervise him, Wise went to Kurtz seeking a transfer “on five

or six occasions and also attended an outside mediation session to address his workplace

concerns.” Id. Kurtz, along with Hamburg, who was also present, refused to offer him a

transfer. See id.

Once Barnes officially became Wise’s supervisor, the situation did not improve. Barnes,

Wise alleges, continued to harass him and was “repeatedly rude, impolite and otherwise hostile

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toward Plaintiff.” Id., ¶ 12. In October 2008, Barnes arranged for every full-time permanent

employee in his office except for Wise to receive two full days of training. See id., ¶ 15. Wise

also suggests that he was expected to meet higher standards of production than other employees,

see id., ¶ 17, and alludes to “other incidents of denial of training, denial of access to computers

which he had frequently used for work before he protested the name calling incident, and other

denials of opportunities to advance his career.” Id., ¶ 22.

Wise also sought help from numerous individuals. He wrote letters to Simmons, his

Congresswoman, and his union complaining of the harassment he believed he was suffering at

Barnes’s hands. See id., ¶¶ 14, 17. He contacted and requested assistance from, among others,

the current Archivist, two former Archivists, NARA’s Chief of Staff, and the Director of

NARA’s EEO office. See id., ¶ 23. These officials, however, “either denied that Plaintiff had a

valid EEO claim . . . and/or mislead [sic] Plaintiff as to the proper administrative process to file

an EEO claim and/or ignored Plaintiff’s requests to address his EEO claims.” Id., ¶ 25. He

ultimately received some relief from the HR department, which agreed to temporarily detail

Wise away from Barnes’s supervision. See id., ¶ 19. Wise, however, was informed that HR

would not be addressing Barnes’s use of the racial epithet, which it wrote off as a “cultural

thing.” Id., ¶ 18.

Though Wise is no longer working under Barnes, he remains Wise’s supervisor of record

because the detail is only temporary. See id., ¶ 19. The opportunities for educational and career

growth he had in his permanent position, moreover, are not available to him in the detail. See

id., ¶ 20. He also claims that even since being detailed he has not received performance ratings

or monetary awards he deserves. See id., ¶ 21.

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In September 2009, Plaintiff, continuing his efforts to obtain redress from supervisory

officials, attempted to deliver a letter expressing his concerns to the office of the then-Acting

Archivist, Adrianne Thomas. See id., ¶ 33. After being told that Thomas was unavailable, he

returned to his office. Id. About an hour later he tried again with the same result. See id. He

then received a call from Kevin McCoy, who stated that he “was not to try to see, meet or give

Ms. Thomas any letters. In fact, the staff in Ms. Thomas’ area did not want [him] to come back

to the fourth floor and if [he] did there would be actions taken against him.” Id., ¶ 34 (alterations

in original). He was later summoned to the Branch Chief’s office and given formal notice that he

would face disciplinary action if he were to approach Thomas’s office again because “Thomas,

who is white, and her staff . . . felt threatened by him.” Id., ¶ 35.

Most recently, Wise contends that in 2010 Barnes wrongly omitted him from a list of

employees who were to receive cash awards for their work on a project. See id., ¶ 37. Wise did

ultimately receive the cash award, but only after having brought the issue to the attention of the

EEO Office. See id., ¶ 37. He maintains that he was nevertheless harmed by having “missed the

award ceremony and the positive recognition from co-workers and managers such participation

in the ceremony would have provided him.” Id.

Wise first contacted an EEO counselor on September 23, 2009, and he filed a formal

complaint of discrimination on November 12, 2009. See id., ¶ 41. This complaint “assert[ed]

discrimination on the basis of race and identifie[d] facts describing retaliation . . . and

referencing the hostility he faces in the workplace.” Id. NARA dismissed all claims brought

therein, and Wise appealed the agency’s decision to the EEOC. See id. The EEOC rendered its

decision on August 5, 2010. Id. Wise filed a Complaint, which has since been twice amended,

initiating the instant action on November 4, 2010. On December 6, 2010, Wise again initiated

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contact with NARA’s EEO Office and subsequently filed a second formal complaint of

discrimination. See id., ¶ 42. In this one, Wise “asserted both race and retaliation as bases for

the unlawful treatment resulting in a hostile work environment.” Id. NARA’s EEO Office again

dismissed Wise’s complaint.

Ferriero has now filed a Motion to Dismiss or in the Alternative for Summary Judgment.

The request for summary judgment relates only to the failure to exhaust discrete claims and

whether the denial of an award was an adverse employment action. See Reply at 9. As these

issues are ultimately moot, see Section III, infra, the Court need focus only on the standard under

Rule 12(b)(6).

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” In evaluating Defendant’s

Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must

grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United

States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens

Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

Although the notice pleading rules are “not meant to impose a great burden on a

plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007), “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, 129 S.

Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth “factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “recovery is very remote

and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)),

the facts alleged in the complaint “must be enough to raise a right to relief above the speculative

level.” Id. at 555. The Court need not accept as true, moreover, “a legal conclusion couched as a

factual allegation,” nor an inference unsupported by the facts set forth in the Complaint.

Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986) (internal quotation marks omitted).

III. Analysis

At first glance, this case appears to pose numerous questions relating to the exhaustion of

administrative remedies and whether certain incidents qualify as actionable adverse employment

actions. See generally Mot. at 8-26. Indeed, Ferriero’s Motion devotes twenty-three of twenty-

six pages to argument that is premised on his reading of Wise’s Complaint as raising numerous

discrete discrimination claims stemming from many of the incidents detailed therein. This is not

an unreasonable reading of Wise’s admittedly ambiguous pleading. The Second Amended

Complaint contains two counts, titled “Adverse Employment Actions Taken Against Plaintiff on

the Basis of Race” and “Adverse Employment Actions Taken Against Plaintiff on the Basis of

Retaliation.” Second Am. Compl. at 11. Both state that “[t]he unlawful actions taken against

Plaintiff, resulting in the creation of a hostile work environment and interference with career

opportunities which, if uncorrected, will continue causing harm, were committed,” respectively,

“because of Mr. Wise’s race” and “because of Mr. Wise’s participation in protected activities.”

Id.

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Any uncertainty as to whether Wise intended with this language to bring both discrete

discrimination and retaliation claims based on individual events and hostile-work-environment

claims or just the latter is dispelled by his Opposition. Wise there abjures the various discrete

claims Ferriero believed his Complaint had raised and argues solely in support of his hostile-

work-environment theory. He explicitly characterizes his Complaint as raising “two claims of

hostile work environment,” Opp. at 25, one based on a discrimination theory and the other on a

retaliation theory, and he sets out and applies the hostile-work-environment standard. See id. at

14-25. In addition, his exhaustion argument clearly concerns only the hostile-work-environment

theory. See id. at 25-29. The Court therefore finds that only hostile-work-environment claims

— one premised on discrimination, the other on retaliation — are presented in this case. To the

extent Plaintiff might later attempt to resuscitate additional claims, however, the Court considers

such arguments to be waived. See Iweala v. Operational Technologies Servs., Inc., 634 F. Supp.

2d 73, 80 (D.D.C. 2009) (“It is well understood in this Circuit that when a plaintiff files an

opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a

court may treat those arguments that the plaintiff failed to address as conceded.”).

This drastically simplifies matters. Ferriero concedes that Wise’s hostile-work-

environment claims were “timely and fully exhausted.” Mot. at 21. He also clearly states that

his alternative Motion for Summary Judgment does not concern the hostile-work-environment

claims, and he thus moves only to dismiss them under Rule 12(b)(6). See id. at 7-9. All that

remains for the Court to decide, then, is whether, as a matter of law, the allegations contained in

the Second Amended Complaint suffice to sustain the two hostile-work-environment claims.

Title VII makes it unlawful for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

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individual's race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a), or “because he

has made a charge . . . or participated in any manner in an investigation” of employment

discrimination. 42 U.S.C. § 2000e-3(a). The Supreme Court has held that these provisions make

it unlawful for an employer to “requir[e] people to work in a discriminatorily hostile or abusive

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A hostile work environment

can amount to either discrimination or retaliation under Title VII. See, e.g., Harris v. Wackenhut

Servs., Inc., 419 Fed. Appx. 1, 1 (D.C. Cir. 2001) (discrimination); Singletary v. District of

Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003) (retaliation). Wise has made both claims, alleging

that he was subjected to a hostile work environment both because of his race and because of his

protected activity. See Second Am. Compl. at 11.

To prevail on a hostile-work-environment claim under either a discrimination or a

retaliation theory, “a plaintiff must show that his employer subjected him to ‘discriminatory

intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’” Baloch v. Kempthorne,

550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris, 510 U.S. at 12). “To determine whether a

hostile work environment exists, the court looks to the totality of the circumstances, including

the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.” Id. at 1201 (citing Faragher v. City of Boca

Raton, 524 U.S. 775, 787-88 (1998)). “The Supreme Court has made it clear that ‘conduct must

be extreme to amount to a change in the terms and conditions of employment.’” George v.

Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting Faragher, 524 U.S. at 788). By adhering to

these standards, the Court thereby “ensure[s] that Title VII does not become a general civility

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code” that involves courts in policing “the ordinary tribulations of the workplace.” Faragher,

524 U.S. at 788 (citation and internal quotation marks omitted).

The incidents Wise claims created a hostile work environment are laid out in detail in

Section I, supra. Ferriero contends that even accepting the veracity of Wise’s allegations and

construing the Second Amended Complaint in the light most favorable to him, he has not

established that he was subjected to a hostile work environment. See Mot. at 21-23; Reply at 5-

8. Wise, on the other hand, maintains that he has pled facts that satisfy the hostile-work-

environment standard. Alternatively, Wise’s attorney, Gary Brown, has submitted a Rule 56(f)

Declaration in which he attests that he needs additional discovery in order to “establish facts

which support Mr. Wise’s claim of a hostile work environment.” Mot. Attachment (Decl. of

Attorney Gary T. Brown), ¶ 3.

While additional discovery certainly might assist Wise in establishing elements of his

claim —for example, that the hostile work environment was in fact motivated by discrimination

and/or retaliation — it would not help him to counter the challenge raised by Ferriero here. The

Supreme Court has stated that “if the victim does not subjectively perceive the environment to be

abusive, the conduct has not actually altered the conditions of the victim's employment, and there

is no Title VII violation.” Harris, 510 U.S. at 21-22. Conduct that Wise did not know about,

therefore, cannot not be used to establish that he was subjected to a hostile work environment.

See Hutchinson v. Holder, --- F. Supp. 2d ---, 2011 WL 4537878, at *15 (D.D.C. 2011); Weger

v. City of Ladue, 500 F.3d 710, 736 (8th Cir. 2007); Burnett v. Tyco Corp., 203 F.3d 980, 981

(6th Cir. 2000). Discovery, accordingly, could not help Wise to demonstrate its existence.

The Court finds, nevertheless, that the allegations contained in his Second Amended

Complaint, considered, as they must be, in the light most favorable to Wise, could suffice to

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establish that he was made to endure a hostile work environment. Although Ferriero is correct

that a single “utterance of an epithet” does not constitute a hostile work environment, see Harris,

510 U.S. at 21-22; Hunter v. District of Columbia, 797 F. Supp. 2d 86, 94 (D.D.C. 2011);

DeLoatch v. Harris Teeter, Inc., 797 F. Supp. 2d 48, 62 (D.D.C. 2011), the racial slur was the

beginning, not the sum total, of the episodes Wise claims constituted a hostile work environment.

In addition to vague allegations concerning continuous harassment, he has identified myriad

incidents ranging from threats of discipline based on false accusations to being singled out and

excluded from trainings and award ceremonies and denied promotions. Although they took

place over the course of a few years, Wise could provide evidence supporting these allegations

sufficient for a reasonable jury to find that the purported harassment was both severe and

pervasive. Cf. Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 193 (D.D.C. 2008) (denying

motion to dismiss hostile-work-environment claim because plaintiff “alleged some conduct in

support of her claim” and noting that plaintiff must plead facts that “support,” not “establish,”

that claim).

Ferriero’s contention that Wise is simply “attempt[ing] to use the hostile work

environment theory to pursue discrimination and retaliation claims based upon discrete

incidents,” Reply at 8, moreover, relies on a theory expressly rejected by the D.C. Circuit’s

recent decision in Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011). See Mot. at 22 (citing

Baird v. Snowbarger, 744 F. Supp. 2d 279 (D.D.C. 2010), the very decision Baird v. Gotbaum

vacated in relevant part). In that case, the court clarified that episodes that may well give rise to

individual Title VII claims can also combine to form a hostile-work-environment claim:

[W]e find no authority for the idea that particular acts cannot as a

matter of law simultaneously support different types of Title VII

claims, and of course, plaintiffs are free to plead alternative

theories of harm that might stem from the same allegedly harmful

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conduct. Thus, although a plaintiff may not combine discrete acts

to form a hostile work environment claim without meeting the

required hostile work environment standard, neither can a court

dismiss a hostile work environment claim merely because it

contains discrete acts that the plaintiff claims (correctly or

incorrectly) are actionable on their own.

Id. at 1252. Incidents like the agency’s failure to promote Wise, therefore, cannot be excluded

from his hostile-work-environment claim simply because they may well have formed the basis of

distinct Title VII claims.

At the end of the day, Wise’s Second Amended Complaint clears the Motion-to-Dismiss

hurdle, if not by much. His allegations must ultimately be supported by record evidence, and he

will need to show that Barnes, who is also black, was actually motivated by Plaintiff’s race or his

protected activity in order to withstand future dispositive motions. The Court cannot conclude at

this juncture, however, that his hostile-work-environment claims should be dismissed.

IV. Conclusion

For the foregoing reasons, the Court ORDERS that:

1. Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment is

DENIED; and

2. Defendant shall file an Answer on or before February 16, 2012.

SO ORDERED.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: February 3, 2012

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