Mack v. Aspen of D.C., Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YOLONDA MACK, )

)

Plaintiff, )

)

v. ) Civil Case No. 15-1973 (RJL)

)

ASPEN OF DC, INC. et al, )

) F I L E D

Defendants. h ) MAR 31 2017

MEMORANDUM OPINION 1`%'°"‘» U-S- D|str|ct& Ban

(March?£, 2017) [Dkt. # 8] ’ ""s ‘°'"'e D'S*"°f°fcvwmma

Plaintiff Yolonda Mack (“plaintiff" or “Mack”) brings this action against Aspen of

DC (“Aspen”), Brandy R. Butler (“Butler”), the District of Columbia Department of

General Services (“DC DGS”) and DC DGS Acting Director Christopher Weaver

(“Weaver”). She alleges discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. against all four defendants, and

failure to pay Wages in violation of D.C. Code § 32-1012 et seq. against Aspen and

Butler.

Defendants DC DGS and Weaver (“DGS defendants”) filed a Motion to Dismiss

the claims against them. [Dkt. # 8]. Upon consideration of the pleadings and relevant

law, I Will GRANT defendants’ motion and dismiss the claims against them Without

prejudice

BACKGROUND

According to the allegations in the Amended Complaint, Mack Was employed from

2011 to 2014 by Aspen, a company that provides contract employee management and

staffing to government and commercial clients. Am. Compl. 11 5 [Dkt. # l]. Defendant

Butler was (and is) Aspen’s President and CEO. Ia'. 11 6. DC DGS is the District agency

that manages District-owned facilities, including oversight of “lease administration and

rent collection” at the District-owned Eastern Market facility. Id. 11 7. Defendant Weaver

is DC DGS’s Acting Director. Ia’. 11 8.

Mack worked as Eastern Market’s North Hall Event Space Coordinator, pursuant

to a contract between Aspen and DC DGS. Ia’. 11 4. During her employment, Mack

alleges that she was repeatedly sexually harassed by Katrina Cufffey, a fellow Aspen

employee who also worked at Eastern Market. Id. 1111 9~13. She alleges that she and

Cuffey were both supervised on a daily basis by DC DGS employee Barry Margeson. Id.

11 9.

Mack alleges that she complained about Cuffey’s sexual harassment to Butler and

Margeson, but neither stopped the harassment Id. 1111 13-14. She also alleges that the

she filed a formal complaint about the harassment with Aspen in February 2014. Ia’. at

15. As a result, she alleges Aspen conducted an internal investigation that concluded

that Cuffey sent “sexually explicit communications” that Mack found “uninvited and

harassing in nature,” advised Cuffey that the alleged behavior violated company policy,

and recommended sexual harassment training for both Mack and Cuffey. Id. 16~17.

Because Cuffey was neither terminated nor meaningfully disciplined, Mack alleges that

the internal investigation was a “sham designed to minimize Aspen’s liability and reach a

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predetermined outcome . . . .” Id. 11 16.

Mack alleges that Aspen and DC DGS retaliated against her after she complained

about the sexual harassment Ia’. 11 16. She alleges that Aspen falsely claimed in its

investigation written report that the investigation uncovered evidence suggesting the

Mack was using illegal drugs at work. Id. She also alleges that her contractor position

was eliminated in September 2014, that she was not given the chance to compete for a

fulltime position with DC DGS, and that Aspen withheld her final paycheck, in retaliation

for reporting sexual harassment Ia’.

STANDARD OF REVIEW

When ruling on a Rule 12(b)(6) motion to dismiss a complaint, the Court must

determine whether the plaintiffs complaint contains “sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted). The Court must read the

complaint’s factual allegations in the light most favorable to the plaintiff, Bell Atlantic Co

v. Twombly, 550 U.S. 544, 555 (2007), but the Court is not required to accept “a legal

conclusion couched in the form of a factual allegation” or “threadbare recitals of a cause

of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 679.

In addition, a claim that is based on an incorrect legal theory must be dismissed, “without

regard to whether it is based on an outlandish legal theory or on a close but ultimately

unavailing one.” Nz`etzke v. Williams, 490 U.S. 319, 327 (1989).

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ANALYSIS

Mack alleges that Aspen and DGS “intentionally discriminated against [her] in

violation of` Title VII by retaliating against her for opposing unlawful sex discrimination.”

Compl. 11 28. To establish a prima facie Title VII claim for discrimination, the plaintiff

must show “(l) she is a member of a protected class; (2) she suffered an adverse

employment action; and (3) the unfavorable action gives rise to an inference of

discrimination.” Stella v. Mz`neta, 284 F.3d 135, 145 (D.C, Cir. 2002). For a retaliation

claim, a plaintiff must show “that she engage in protected activity, that she suffered an

adverse employment action, and that there was a causal link between the former and the

latter.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015).

As an initial matter, Mack sued the wrong defendants Mack names DC DGS, a

subordinate agency in the District’s government, as one of the defendants However, the

District of Columbia is the proper defendant in a Title VII case, rather than any

subordinate government agencies or departments. Hunter v. D.C. Child & Famz'ly Servs.

Agency, 710 F. Supp. 2d 152, 157 (D.D.C. 2010) (“[I]n a Title VII case against the

District of Columbia, the District is the proper defendant, not its agencies.”).

Furthermore, Mack sues DC DGS Acting Director Weaver in his official capacity. The

Supreme Court has noted that “[t]here is no . . . need to bring official-capacity actions

against local government officials, for . . . local government units can be sued directly for

damages or injunctive relief.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). As

a result, the proper defendant here is the District of Columbia.

Mack asks the Court to construe defendants’ motion as a motion to substitute the

proper parties, and she is correct that courts of this District have chosen to substitute the

District as a defendant when a plaintiff erroneously names a District agency as a

defendant See, e.g., Sampson v. D.C. Dep’t of Correctl'ons, 20 F. Supp. 3d 282, 285

(D.D.C. 2014) (construing motion to dismiss as motion to substitute and substituting the

District as the proper defendant). However, l decline to do so here because the Mack’s

claim against DC DGS and Weaver-or the District-_must be dismissed whether or not

the proper defendant is named.

Title VII prohibits “employers” from discriminating against their employees 42

U.S.C. § 2000e, § 2000e-2, § 2000e-3. Here, Mack has not alleged facts that, taken as

true, would state a claim that DC DGS was her employer.l Mack alleges that she worked

at Eastern Market pursuant to a contract between Aspen and DC DGS. Under such

circumstances courts have found it possible for an individual to be a “joint employee” of

both an employment agency and the client entity. The Courts of this District apply two

difference tests to determine whether an individual has joint employers Under the first

test, referred to as the Browning-Ferris test, the court looks at whether “two or more

' To the extent that Mack’s claim includes an allegation that DC DGS refused to hire her for a position

on the basis of discrimination and retaliation, she does not need to allege that DC DGS was already her

employer. However, she has not alleged facts that would establish a causal link between reporting

harassment to Aspen in February 2014 and DC DGS’s decision to not hire her seven months later.

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employers exert significant control over the same employee_where it can be shown that

they share or co-determine those matters governing essential terms and conditions of

employment.” NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d

Cir. 1982); Rea’d v. Summers, 232 F.3d 933, 938 (D.C. Cir. 2000) (referring to

Browning-Ferris test as a “fairly standard formulation” of the joint employment test);

Coles v. Harvey, 471 F. Supp. 2d 46, 50-51 (D.D.C. 2007) (applying Browm'ng-Ferris

test).

The other test, often referred to as the “Spirides factors”, requires courts to weigh

12 separate factors when determining whether an entity can be considered a joint

employer. The first and most important consideration is whether the alleged additional

employer “has the right to control and direct the work of [the] individual, not only as to

the result to be achieved, but also as to the details by which that result is achieved.”

Spl`rl`des v. Rel'nhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979). Af`ter considering this, the

court should weigh the following eleven factors:

(1) the kind of occupation, with reference to whether the work usually is

done under the direction of a supervisor or is done by a specialist without

supervision; (2) the skill required in the particular occupation; (3) whether

the “employer” or the individual in question furnishes the equipment used

and the place of work; (4) the length of time during which the individual

has worked; (5) the method of payment, whether by time or by the job; (6)

the manner in which the work relationship is terminated; i. e., by one or

both parties, with or without notice and explanation; (7) whether annual

leave is afforded; (8) whether the work is an integral part of the business of

the “employer”; (9) whether the worker accumulates retirement benefits;

(10) whether the “employer” pays social security taxes; and (11) the

intention of the parties

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Id. See also Sl'mms v. D.C. Gov’t, 587 F. Supp. 2d 269, 273-75 (D.D.C. 2008).

Our Circuit has invoked the Spl'ria’es factors and the Ferri§-Browm`ng test for joint

employment, but has declined to resolve which of the two tests should govern. Rea’a' v.

Summers, 232 F.3d 933, 937-38 (D.C. Cir. 2000). I need not decide which test should

govern here, because Mack’s claims against DC DGS fail under either test Even

construing her allegations favorably, her complaint does not allege that DC DGS was her

employer. On the contrary, Mack explicitly alleges that Aspen was her “employer” from

2011 to 2014. Compl. 11 4. Furthermore, she alleges that Aspen conducted the internal

investigation into her harassment and prepared a written report with its conclusions Id.

1111 16-17. She also alleges that Aspen withheld her final paycheck, indicating that Aspen

controlled the terms of her payment Id. 11

Her allegations are much thinner with respect to DC DGS. She simply alleges

that she “reported to and [was] directly supervised” by a DC DGS employee on a daily

basis By itself, that indicates that DC DGS exercised some supervision over her work,

but it does not allege that DC DGS “share[d] or co-determine[d] [the] matters governing

essential terms and conditions of [her] employment” or that DC DGS could “control and

direct” both the details and the results of her work. The complaint is unclear about the

scope of DC DGS’s authority over her-whether it had authority to change her method

and amount of payment, 2 her responsibilities her place of work, her work schedule, her

method and amount of payment, or could choose to discipline or terminate her. Notably,

Mack alleges that “she was notified” in September 2014 that her contractor position was

being eliminated and that her last day of work would be September 30, 2014, but she does

not specify who notified her, or whether DC DGS played any role in the decision to

terminate her specifically, as compared to other Aspen contract employees The joint

employment test is a fact-intensive inquiry, and at the motion to dismiss stage, Mack need

not allege every facet of her relationship with DC DGS to allege that it was a joint

employer. But she must provide more detail than she has for the Court to include that the

District was her employer for purposes of Title VII liability, particularly when she

explicitly alleges that another entity_Aspen_was her employer. Because of the paucity

of her allegations against DC DGS, she has not sufficiently alleged that the District was

her “employer” for purposes of Title VII liability, and the claim against DC DGS and

Weaver must be dismissed

However, I will dismiss the claim against DC DGS and Weaver without prejudice

Our Circuit has stated that “dismissal with prejudice is warranted only when a trial court

determines that the allegations of other facts consistent with the challenged pleading

could not possibly cure the deficiency.” Rollins v. Wackenhut Servs., Inc., 703 F.3d

2 The complaint does allege that her DC DGS supervisor told her in 2014 that she would receive an

hourly rate increase Id. 11 18. She does not allege whether DC DGS made the decision to raise her pay

or was simply communicating a decision that Aspen made. This statement is not enough by itself to

suggest that DC DGS exercised control over the method and terms of her payment

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1205, 1209 (D.C. Cir. 1996). Although her allegations about DC DGS are insufficient

here, 1 am not convinced that she is unable to plead other facts, consistent with the current

Complaint, that would cure the deficiency and state a claim that DC DGS was her joint

employer with Aspen.

CONCLUSION

For all of the foregoing reasons, the Court will DGS defendants’ Motion to

Dismiss the claims against them without prejudice An Order consistent with this

decision accompanies this Memorandum Opinion. ~

MM/

RICHARD J.\I,EioN

United States District Judge