# MacOn v. United States Capitol Police Board

> District Court, District of Columbia · June 29, 2017 · 258 F. Supp. 3d 94

URL: https://www.frixlaw.com/law-library/cases/4182260

## Case

- **Full name:** Derrick W. MACON, Plaintiff, v. UNITED STATES CAPITOL POLICE BOARD, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** June 29, 2017
- **Citations:** 258 F. Supp. 3d 94
- **Precedential status:** Published
- **Opinion:** Opinion by Sullivan
- **Judges:** Judge Emmet G. Sullivan
- **Nature of suit:** Civil
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4182260

## How later opinions describe it (automated extraction)

- finding jurisdiction when plaintiff only raised claim in “Office of Compliance Complaint” and not in his “Counseling Request”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DERRICK W. MACON, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2067 (EGS)
)
UNITED STATES CAPITOL POLICE )
BOARD, )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

Plaintiff Derrick Macon, pro se, alleges that he suffered

discrimination and retaliation in violation of the Congressional

Accountability Act, 2 U.S.C. § 1301, et seq. (“CAA”). Pending

before the Court is the defendant’s motion to dismiss pursuant

to Federal Rule of Civil Procedure Rule 12(b)(1), or in the

alternative, Federal Rule of Civil Procedure 12(b)(6). Upon

consideration of the motion, the response and reply thereto, the

applicable law, and the entire record, the motion will be

GRANTED in PART and DENIED in PART.

I. Background

On March 19, 2012, Mr. Macon filed a Complaint in which he

alleged that his employer, defendant United States Capitol

Police Board, discriminated against him in violation of the CAA.

Am. Compl., ECF No. 4. In Count I, Mr. Macon alleges that he was

discriminated based on disability. See id. at 7. In Count II,
Mr. Macon alleges that he was subjected to a hostile work

environment. See id. at 7-8. In Count III, Mr. Macon alleges

that he was subjected to discrimination based on race. See id.

at 8-9. In Count IV, Mr. Macon alleges that he was subjected to

retaliation. See id. at 9-10. Mr. Macon alleges that he

exhausted his administrative remedies by completing counseling

and mediation with the Congressional Office of Compliance with

regard to Office of Compliance Case No. 11-CP-50 and that on

August 20, 2011, he received an End of Mediation Notice. See id.

at 4-5. The original Complaint in this case was filed on

November 21, 2011, and attached to the Complaint was the End of

Mediation Notice for Case No. 11-CP-50. See Compl., ECF No. 1 at

5. This Notice does not contain information about the

allegations that were the subject of the counseling and

mediation in that case. See id.

Mr. Macon is also a pro se plaintiff in three other cases

before this Court –- Blackmon-Malloy, et al., v. United States

Capitol Police Bd., Civil Action No. 01-2221 1; Macon v. United

States Capitol Police Bd., Civil Action No. 08-003; and Macon v.

United States Capitol Police Bd., Civil Action No. 09-cv-592. On

May 18, 2010, the Court declined to consolidate the instant case

1 Mr. Macon is also the plaintiff in Macon v. Capitol Police Bd.,
Civil Action No 03-1592. That case has been consolidated with
Blackmon-Malloy v. Capitol Police Bd., Civil Action No. 01-2221.

2
with the other cases listed above, but did order that all cases

follow the same schedule to address the threshold subject matter

jurisdiction issue in accordance with the decision of the Court

of Appeals of the District of Columbia Circuit in Blackmon-

Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, (D.C. Cir.

2009). Thereafter, in light of Mr. Macon’s earlier notification

to the Court that he did not oppose limited consolidation of the

instant case with Civil Action No. 01-2221 “to address the

threshold question of meeting the jurisdictional requirements as

set forth in” the Court of Appeals decision, the Court informed

the parties that it would defer ruling on the defendant’s motion

to dismiss in the instant case pending the Court’s resolution of

the motion to dismiss in Civil Action No. 01-2221. See Civil

Action No. 09-592, Minute Order, Jan. 6, 2011. The parties later

notified the Court that they consented to the Court proceeding

to consider the defendant’s motion to dismiss. See Civil Action

No. 11-2067, Minute Order, May 15, 2015. As the Court had ruled

on the motion to dismiss in Civil Action No. 01-2221, the Court

considered the motion to dismiss in this case and determined

that it should be held in abeyance pending Mr. Macon’s response

to the Court’s Order to Show Cause. Mem. Op., ECF No. 16.

The Court observed that Mr. Macon had failed to provide

documentation to support his assertions that he went through the

counseling and mediation process regarding the claims alleged in

3
the Amended Complaint. Specifically, the documentation attached

to Mr. Macon’s original Complaint and his opposition to the

defendant’s motion to dismiss does not contain information

regarding the allegations made in Office of Compliance Case No.

11-CP-50. As the Court is to construe a pro se complaint

liberally, it issued an Order to show cause why the Amended

Complaint should not be dismissed with prejudice for failure to

demonstrate -- through relevant Office of Compliance documents

similar to those Mr. Macon has provided in other cases before

this Court –- that his claims in his Amended Complaint were

actually presented in counseling and mediation. Mr. Macon timely

responded to the Order to show cause and the defendant timely

replied.

II. Legal Standards – Federal Rule of Civil Procedure
12(b)(1)

A. Motion to Dismiss for Lack of Subject-Matter
Jurisdiction.

A federal district court may only hear a claim over which it

has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction. Fed.R.Civ.P. 12(b)(1). On a motion to dismiss for

lack of subject matter jurisdiction, the plaintiff bears the

burden of establishing that the Court has jurisdiction. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating

the motion, the Court must accept all of the factual allegations

4
in the complaint as true and give the plaintiff the benefit of

all inferences that can be drawn from the facts alleged. See

Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). However,

the Court is “not required . . . to accept inferences

unsupported by the facts alleged or legal conclusions that are

cast as factual allegations.” Cartwright Int’l Van Lines, Inc.

v. Doan, 525 F. Supp. 2d 187, 193 (D.D.C. 2007) (quotation marks

omitted). Finally, a “pro se complaint is entitled to liberal

construction.” Washington v. Geren, 675 F.Supp.2d 26, 31

(D.D.C.2009) (citing Haines v. Kerner, 404 U.S. 519, 520, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972)).

B. Administrative Exhaustion under the Congressional
Accountability Act.

The Congressional Accountability Act of 1995, 2 U.S.C. § 1301,

et seq., “extend[s] the protections of Title VII of the Civil

Rights Act of 1964, as well as ten other remedial federal

statutes, to employees of the legislative branch.” Blackmon-

Malloy III, 575 F.3d at 701. Subchapter IV of the Act (Sections

1401–1416) governs the procedures for the administrative

processing of any disputes under the Act. As relevant here, it

sets forth “a three-step process that requires counseling and

mediation before an employee may file a complaint seeking

administrative or judicial relief.” Id. The employee must first

engage in counseling regarding his particular complaint. Then,

5
he must proceed to mediation. Upon completion of mediation, he

may elect to file suit in federal court.

In determining whether the employee “has completed counseling

and mediation,” 2 U.S.C. § 1408(a), as required to file a

lawsuit, the Court is not empowered to examine what actually

transpired in any counseling or mediation session or to

determine the effectiveness of those sessions. Blackmon-Malloy,

575 F.3d at 711–12. Rather, “the reference in section 1408(a) to

‘completed counseling . . . and mediation’ means no more than

that[: (1)] the employee timely requested counseling and

mediation, [(2)] that the employee did not thwart mediation by

failing to give notice of his or her claim upon request, [(3)]

that the mandated time periods have expired, and [(4)] that the

employee received end of counseling and mediation notices from

the Office.” Id. at 713.

1. The Counseling Requirement

The first step an employee must take is “counseling as

provided in section 1402.” 2 U.S.C. § 1401(1). “‘[T]o commence a

proceeding,’ the employee must request counseling within 180

days of the date of the alleged violation of a law made

applicable by the [Congressional Accountability Act].” Blackmon-

Malloy III, 575 F.3d at 702 (quoting 2 U.S.C. § 1402(a)). “As

regards counseling, ‘[t]he Office shall provide the employee

with all relevant information with respect to the rights of the

6
employee.’” Id. (quoting 2 U.S.C. § 1402(a)). “The

[Congressional Accountability Act] further provides that ‘[t]he

period for counseling shall be 30 days unless the employee and

the Office agree to reduce the period.’” Id. (quoting 2 U.S.C. §

1402(b)). The Court of Appeals for the District of Columbia

Circuit has held that the counseling requirement does not

encompass a requirement that the complaining employee be

physically present for counseling, “[g]iven the limited purpose

of counseling to provide the employee with information about his

or her rights and the limited benefit that would inure to the

employee or the Office from performing this function in person.”

Id. at 708. Finally, “[t]he Office must ‘notify the employee in

writing when the counseling period has ended.’” Id. (quoting 2

U.S.C. § 1402(c)).

2. The Mediation Requirement

The second step that an employee must take is “mediation as

provided in section 1403.” 2 U.S.C. § 1401(2). “‘[N]ot later

than 15 days after receipt . . . of notice of the end of the

counseling period . . . but prior to and as a condition of

making an election under section 1404,” the employee must “file

a request for mediation with the Office.’” Blackmon-Malloy III,

575 F.3d at 702 (quoting 2 U.S.C. § 1403(a)). “Mediation ‘may

include the Office, the covered employee, the employing office,

and one or more individuals appointed by the Executive Director’

7
of the Office, but ‘shall involve meetings with the parties

separately or jointly for the purpose of resolving the dispute

between the covered employee and the employing office.’” Id.

(quoting 2 U.S.C. § 1403(b)(1), (2)). “The mediation period

‘shall be 30 days,’ which may be extended upon joint request of

the parties, and (as with counseling) the Office must ‘notify in

writing the covered employee and the employing office when the

mediation period has ended.’” Id. (quoting 2 U.S.C. § 1403(c)).

Just as for counseling, mediation need not involve the

complaining individual’s physical presence. See id. at 710.

3. Election

The third and final step is “election, as provided in section

1404 . . . of either . . . a formal complaint and hearing . . .

subject to Board review . . . and judicial review in the United

States Court of Appeals for the Federal Circuit . . . or . . . a

civil action in a district court of the United States as

provided in section 1408.” 2 U.S.C. § 1401(3); see also

Blackmon-Malloy III, 575 F.3d at 702. If the civil-action route

is chosen, the three-step procedure constitutes a jurisdictional

requirement. The Congressional Accountability Act declares that

“[t]he district courts of the United States shall have

jurisdiction over any civil action commenced under section 1404

. . . by a covered employee who has completed counseling under

section 1402 . . . and mediation under section 1403 . . . . A

8
civil action may be commenced by a covered employee only to seek

redress for a violation for which the employee has completed

counseling and mediation.” 2 U.S.C. § 1408(a). This language,

combined with its location in a section entitled “jurisdiction,”

led the Court of Appeals for the District of Columbia Circuit to

hold that “it is apparent from the plain terms of the text that

Congress intended counseling and mediation to be jurisdictional

requirements.” Blackmon-Malloy, 575 F.3d at 705. Accordingly,

district courts are “not empowered to apply the equitable

doctrine of vicarious exhaustion to excuse compliance.” Id. at

706.

III. Analysis

The defendant moves to dismiss the Amended Complaint

pursuant to Rule 12(b)(1) on two grounds: (1) the original

Complaint was not timely filed; and (2) Mr. Macon has not

demonstrated that that he timely exhausted his administrative

remedies for each of his claims. See Def.’s Mot. to Dismiss, ECF

No. 6 at 10-13. The defendant notes that Mr. Macon alleged that

he received the end of mediation notice on August 20, 2011. See

id. at 14. Thus, according to the defendant, Mr. Macon was

required to file his Complaint in this court within 90 days, or

by no later than November 18, 2011. See id. Because Mr. Macon

filed his Complaint on November 21, 2011, he was three days late

and thus, according to the defendant, the Court lacks

9
jurisdiction over his claims. See id. The defendant also argues

that the Amended Complaint should be dismissed because Mr. Macon

“has not plead any facts to establish the date of the alleged

violation, what occurred, and how he may have been adversely

affected.” Id. at 15.

With regard to the first issue, Mr. Macon responds that he

received his end of mediation notice on August 23, 2011, and

attached to his memorandum a certification from the Office of

Compliance stating that “Acknowledgment of receipt of

Notification of End of Mediation Period by the complainant was

made on August 23, 2011.” Pl.’s Opp’n, ECF No. 8 at 3, 18. Mr.

Macon also attached a “Certificate of Official Record” from the

custodian of records from the Office of Compliance, who is

responsible “for maintaining the official records of the Office

regarding the dates on which events under Sections 401 through

404(1), and 405 of the Congressional Accountability Act

occurred” including “the dates on which the employee received

notification of the end of such counseling and mediation.” Id.

at 17.

The defendant acknowledges that were the Court to accept

the August 23, 2011 date as the date on which Mr. Macon received

the notice, then Mr. Macon’s Complaint would be timely. See

Def.’s Reply (hereinafter “ECF No. 9”), ECF No. 9 at 3. The

defendant notes, however, that Mr. Macon has presented the Court

10
with two contradictory dates and thus has not carried his

“‘burden of persuasion to establish subject matter jurisdiction

by a preponderance of the evidence. ’” ECF No. 9, citing

Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C.

2000).

As set forth supra, it is Mr. Macon’s responsibility to set

forth some evidence that a particular claim was actually

presented in counseling and mediation and that he exhausted his

administrative remedies and timely filed his Complaint in this

Court. With regard to whether Mr. Macon’s Complaint was timely

filed, Mr. Macon has satisfied his responsibility by providing

the relevant Certificate of Official Record, which establishes

that he received his Notification of End of Mediation Period on

August 23, 2011. Accordingly, as defendant concedes, his

Complaint was timely filed.

Mr. Macon provided four documents in response to the show

cause order: (1) his Formal Request for Counseling dated April

19, 2011 referencing two attached letters; (2) Letter dated

April 19, 2011 officially requesting counseling (“Counseling

Request”) alleging a hostile work environment from November 5,

2010 through April 19, 2011; (3) Letter dated April 19, 2011

filing a complaint (“Office of Compliance Complaint”) alleging a

hostile work environment from December 25, 2010 through April

19, 2011; and (4) Office of Compliance Certificate of Official

11
Record for Case No. 11-cp-50 (CV, DA, RP) dated November 29,

2011. Pl.’s Reply to Court Order to Show Cause, ECF No. 17. The

first three documents are stamped as having been received by the

Office of Compliance on April 19, 2011. The fourth document

references an attachment, but the attachment was not provided in

response to the Show Cause Order. The Court notes, however, that

Mr. Macon provided the attachment as Exhibit A to his opposition

to the defendant’s motion to dismiss. ECF No. 8 at 18. This

document provides an Office of Compliance Certification as

follows: for Case No. 11-CP-50, (1) the request for counseling

was made on April 19, 2011; (2) Mr. Macon acknowledged receipt

of notification of end of counseling period on May 28, 2011; (3)

Mr. Macon requested mediation on May 31, 2011; and (4) Mr. Macon

acknowledged receipt of notification of end of mediation period

on August 23, 2011.

The defendant disputes that Mr. Macon has met his burden of

persuasion to establish that the Court has subject matter

jurisdiction over his claims because, according to the

defendant, these documents do not substantiate his allegations

that he complied with the mandatory counseling and mediation

processes regarding the claims in his Amended Complaint. Def.’s

Opp’n to Pl.’s Reply to an Order to Show Cause, ECF No. 18.

Again, Mr. Macon’s responsibility is to set forth some

evidence demonstrating that a particular claim was actually

12
presented in counseling and mediation and that he exhausted his

administrative remedies. Mr. Mason has demonstrated that the two

letters dated April 19, 2011, and received by the Office of

Compliance on that date describe the claims for which he sought

counseling on April 19, 2011. Further, it is reasonable for the

Court to understand the Office of Compliance Certification for

Case No. 11-CP-50 to refer to the claims described in these

letters because date upon which counseling was sought is the

same date that these letters were received by the Office of

Compliance. Finally, Mr. Macon sought counseling within 180 days

of the alleged creation and continuation of the hostile work

environment.

The next question is whether the claims Mr. Macon asserts

in this civil action were raised in the documentation submitted

to the Office of Compliance. In Count I of the Amended

Complaint, Mr. Macon alleges that he was discriminated against

based on disability. In his Office of Compliance Complaint, Mr.

Macon alleges that an employee of the defendant retaliated

against him by unreasonably delaying his return to duty after

the completion of treatment by his health care provider. ECF No.

17 at 9. In Count II, Mr. Macon alleges that he was subjected to

a hostile work environment. In both his Counseling Request and

his Office of Compliance Complaint, Mr. Macon states that an

employee of the defendant “created and continues to create a

13
‘severe and pervasive’ hostile work environment.” ECF No. 17 at

7, 9, 10. In Count III, Mr. Macon alleges that he was subjected

to discrimination based on race. See id. at 8-9. In his

Counseling Request, Mr. Macon states that defendant has created

a racially discriminatory and hostile environment. ECF No. 17 at

12-13. In Count IV, Mr. Macon alleges that he was subjected to

retaliation. In his Office of Compliance Complaint, Mr. Macon

alleges retaliation. ECF No. 17 at 9. Mr. Macon has therefore

demonstrated that he administratively exhausted these claims.

The Court will therefore DENY defendant’s motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(1). As the

Court has determined that it has subject matter jurisdiction, it

next considers the defendants’ Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6).

IV. Legal Standard – Federal Rule of Civil Procedure
12(b)(6)

A Rule 12(b)(6) motion to dismiss “tests the legal

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235,

242 (D.C.Cir.2002). To survive a motion to dismiss, “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility

requires that “the plaintiff pleads factual content that allows

14
the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. Detailed factual

allegations are not required, but the plaintiff is required to

provide “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation,” id., and must plead enough facts “to

raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task

that requires the reviewing court to draw on its judicial

experience and common sense. But where the well-pleaded facts do

not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—

‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at

679.

When ruling on a Rule 12(b)(6) motion, the court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002).

The court “must accept as true all of the factual allegations

contained in the complaint,” Atherton v. D.C. Office of the

Mayor, 567 F.3d 672, 681 (D.C.Cir.2009)(quoting Erickson v.

Pardus, 551 U.S. 89, 94 (2007)), and must construe the complaint

liberally in the plaintiff’s favor, granting the plaintiff the

15
benefit of all reasonable inferences deriving from the

complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir.1994). However, the court need not “accept inferences drawn

by plaintiffs if such inferences are unsupported by the facts

set out in the complaint. Nor must the court accept legal

conclusions cast in the form of factual allegations.” Id.

Further, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678. Only a claim that “states a

plausible claim for relief survives a motion to dismiss.” Id. at

679. Although a pro se complaint “must be held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson v.

Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)

(per curiam) (internal quotation marks and citation omitted), it

too, “must plead ‘factual matter’ that permits the court to

infer ‘more than the mere possibility of misconduct,’ ” 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 679, 129 S.Ct.

1937).

Under the standard set forth in Iqbal, to survive a motion

to dismiss, Mr. Macon’s complaint needs to “contain[] sufficient

factual matter” from which the Court can “draw the reasonable

inference” that the defendant discriminated against him and thus

violated the CAA. Iqbal, 556 U.S. at 678.

16
V. Analysis

A. Discrimination Based on Disability

In Count I, Mr. Macon alleges that he was discriminated

against based on disability when the defendant denied his

“reasonable accommodation [by] refusing to assist him to return

to work by violating established procedures.” Am. Compl., ECF No

4 ¶ 36. The facts alleged in support of this claim are as

follows:

Plaintiff insisted that he was entitled to be
restored to regular duty in light of the fact
that he was no longer injured and has reached
maximum medical improvement. His physician
documented that Plaintiff has cleared his
treatment and was fit for duty . . . [but that]
[d]efendant has refused to restore Plaintiff
to regular duty because he filed a complaint
of discrimination.

Id. ¶¶ 31, 33.

The CAA prohibits discrimination based on “disability,

within the meaning of section 501 of the Rehabilitation Act of

1973 (29 U.S.C. 791) and sections 102 through 104 of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12112 to

12114).” 2 USC § 1311(a)(3). The Rehabilitation Act provides

that “[n]o otherwise qualified individual with a disability” may

be discriminated against by a federal agency “solely by reason

of her or his disability.” 29 U.S.C. § 794(a). 2 The two essential

2 The Act “expressly incorporates the standards of the [Americans
with Disabilities Act] for claims of employment discrimination.”

17
elements of a discrimination claim under the Act are that (i)

the plaintiff suffered an adverse employment action (ii) because

of her disability. Baloch v. Kempthorne, 550 F.3d 1191, 1196

(D.C. Cir.2008). 3 Thus, a plaintiff must allege that he has a

disability to state a claim for discrimination based on

disability. Here, Mr. Macon has not alleged that he has a

disability. Rather, he alleges that he was injured and his

physician determined that he was fit to return to duty, but the

defendant refused to do so. Am. Compl., ECF No. 4 ¶ 31. Because

Mr. Macon has failed to allege one of the essential elements of

a disability discrimination claim, the Court will GRANT the

defendant’s motion as to Count I of the Amended Complaint.

B. Hostile Work Environment

In Count II, Mr. Macon alleges that he was subjected to a

hostile work environment based on his race in an effort to force

him to retire when the defendant “(1) place[d] him in fear of

being furloughed; (2) placed him on extensive administrative

Rosier v. Holder, 833 F.Supp.2d 1, n.1 (D.D.C.2011)(internal
citations omitted).
3 Generally, to establish a prima facie case of discrimination, a

plaintiff must demonstrate that: “(1) [he] is a member of a
protected class; (2) [he] has suffered an adverse employment
action; and (3) the unfavorable action gives rise to an
inference of discrimination.” Czekalski v. Peters, 475 F.3d 360,
364 (D.C.Cir.2007)(quoting George v. Leavitt, 407 F.3d 405, 412
(D.C.Cir.2005)). “At the motion to dismiss stage, however, a
plaintiff need not prove a prima facie case.” Munro v. LaHood,
839 F.Supp.2d 354, 360 (D.D.C.2012)(citations omitted).

18
leave; and (3) refused to restore him to regular duty despite

finding that he reached maximum medical improvement.” Id. ¶¶ 27,

40. In Count IV, entitled “Retaliation (Discrete and Hostile

Environment),” Mr. Macon alleges that he was “mistreated,

humiliated, intimated and disrespected by [d]efendant, Frederick

Herrera and other employees on an almost daily basis,” id. ¶ 56;

that this treatment interfered with his work performance, id. ¶

58; that “[d]efendant’s refusal to return [him] to full-duty

significantly altered the condition of employment,” id. ¶ 61;

that defendant’s denying Mr. Macon the opportunity to work

overtime was a materially adverse action, id.; and that these

actions constitute both discrete acts and a “hostile work

environment based on retaliatory harassment.” Id. ¶ 62.

As factual support for these claims, Mr. Macon alleges that

although his physician documented that he was fit for duty in

December 2010, the defendant refused to restore him to regular

duty and considered him “non-essential” in retaliation for

having filed an administrative complaint. Id. ¶¶ 31, 33. The

complaint alleges that Mr. Macon had not been restored to active

duty as of May 2011. Id. ¶ 32.

As set forth by the Court of Appeals for the District of

Columbia Circuit:

To prevail on a hostile work environment
claim, a plaintiff must first show that he or
she was subjected to “discriminatory

19
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.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49
(1986)).

In evaluating a hostile work environment
claim, 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.” Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir.2008)
(citing Faragher v. City of Boca Raton, 524
U.S. 775, 787–88, 118 S.Ct. 2275, 141 L.Ed.2d
662 (1998)).

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C.Cir.2013).

Depending upon the circumstances, a single incident can be

sufficient to establish a hostile work environment. Id.(noting

that the employer was alleged to have “used a deeply offensive

racial epithet when yelling at [the plaintiff] to get out of his

office.”)

The defendant disputes that Mr. Macon’s factual assertions

constitute conduct that was severe or pervasive enough to create

a hostile work environment, nor that he has proffered any

information establishing that the defendant’s actions interfered

with his work performance. Def.’s Mot. to Dismiss, ECF No. 6 at

23.

20
Here, although Mr. Macon alleges that he was “mistreated,

humiliated, intimated and disrespected by [d]efendant, Frederick

Herrera and other employees on an almost daily basis,” Am.

Compl., ECF No. 4 ¶ 56, his sole specific fact supporting his

hostile work environment claim is that the defendant refused to

restore him to regular duty. This single incident is clearly not

comparable to the severity of the sole incident referenced

above. Construed in the light most favorable to the pro se

plaintiff and making all inferences in his favor, Mr. Macon’s

complaint fails to “contain[] sufficient factual matter” from

which the Court can “draw the reasonable inference” that the

defendant created a hostile work environment in violation of the

CAA. Iqbal, 556 U.S. at 678. Accordingly, the Court will GRANT

the defendant’s motion as to Count II of the Amended Complaint.

C. Discrimination Based on Race

In Count III, Mr. Macon alleges that he was discriminated

against based on race when Mr. Frederick Herrera, Senior

Employment Counsel, “ordered the delay of the legal assistance

requested to return plaintiff to full duty.” Am. Compl., ECF No.

4 ¶¶ 45, 46.

To bring an actionable discrimination claim, Mr. Macon must

establish that “(1) [he] is a member of a protected class, (2)

[he] suffered an adverse employment action, and (3) the

unfavorable action gives rise to an inference of

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discrimination.” Edwards v. Gray, 7 F.Supp.3d 111, 115 (D.D.C.

2013)(quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002)

(quotation marks omitted). “Although it is well established that

‘an employment discrimination plaintiff is not required to plead

every fact necessary to establish a prima facie case to survive

a motion to dismiss,’ Rodriguez v. Donovan, 922 F.Supp.2d 11, 17

(D.D.C.2013) (quoting Jones v. Air Line Pilots Ass'n, 642 F.3d

1100, 1104 (D.C.Cir.2011), a plaintiff must nevertheless ‘plead

sufficient facts to show a plausible entitlement to relief.’”

Edwards, 7 F.Supp.3d at 115.

The defendant disputes that Mr. Macon has stated a claim

for discrimination based on race because he has not alleged

sufficient facts to support his allegation of having suffered an

actionable adverse employment action. Def.’s Mot. to Dismiss,

ECF No. 6 at 15-16.

An adverse employment action is “a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing significant change in benefits.” Taylor v.

Small, 350 F.3d 1286, 1293 (D.C.Cir.2003)(quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)(pinpoint cite

omitted in original). Construed in the light most favorable to

the pro se plaintiff and making all inferences in his favor, Mr.

Macon has adequately alleged an actionable adverse employment

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action: he has alleged that he was not returned to full duty

although he was medically capable of doing so. Am. Compl., ECF

No. 4 ¶ 31, 45-46. Although Mr. Macon has not alleged facts

describing the ramifications of not being returned to full duty,

it is reasonable for the Court to infer that an employer’s

refusal to return an employee to full duty could constitute a

significant change in employment status. Accordingly, the Court

will DENY the defendant’s motion as to Count III of the Amended

Complaint.

D. Retaliation

In Count IV, Mr. Macon alleges that he was retaliated

against because the defendant knew that he had filed a complaint

and that the defendant “refused to restore [him] to his regular

duties and – [ ] instead kept him in fear of losing his job – in

retaliation for engaging in his protected conduct.” Am. Compl.

¶¶ 53-54.

“To prove retaliation, the plaintiff generally must

establish that he or she suffered (i) materially adverse action

(ii) because he or she had brought or threatened to bring a

discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198

(D.C.Cir.2008). To survive a motion to dismiss a retaliation

claim, “all [the] complaint has to say” is “the Department

retaliated against me because I engaged in protected activity.”

Rochon v. Gonzalez, 438 F.3d 1211, 1220 (D.C.Cir.2006)(internal

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citations omitted); Munro v. LaHood, 839 F.Supp.2d. 354, 364

(D.D.C.2012).

Defendant disputes that that Mr. Macon has stated a claim

for retaliation because: (1) he has not demonstrated that there

was a material disadvantage to his employment; and (2) he has

not alleged a causal connection between his participation in the

complaints filed in this Court in 2001, 2008, and 2009, and the

defendant’s alleged failure to return him to his regular duties.

Def.’s Mot. to Dismiss, ECF No. 6 at 16-18.

However, to survive a motion to dismiss a retaliation claim,

“all [the] complaint has to say” is “the [defendant] retaliated

against me because I engaged in protected activity.” Rochon, 438

F.3d at 1220. Mr. Macon has sufficiently alleged a claim because

he has alleged that he was retaliated against by not being

returned to active because he engaged in protected activity.

Accordingly, the Court will DENY the defendant’s motion as to

Count IV of the Amended Complaint.

VI. Conclusion

Upon consideration of the motion, the response and reply

thereto, the applicable law, and the entire record, the Motion

is GRANTED in PART and DENIED in PART. Mr. Macon may proceed on

Counts III and IV of the Amended Complaint. Counts I and II

will be dismissed. An appropriate Order accompanies this

Memorandum Opinion.

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SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
June 29, 2017

Notice to: 12401 Weldon Manor Lane
Upper Marlboro, MD 20772

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4182260. Public record. Not legal advice.