                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

WILLIAM L. BRISCOE,                              :
                                                 :
       Plaintiff,                                :       Civil Action No.:      14-0155 (RC)
                                                 :
       v.                                        :       Re Document No.:       3
                                                 :
COSTCO WHOLESALE CORP., et al.,                  :
                                                 :
       Defendants.                               :

                                 MEMORANDUM OPINION

      GRANTING DEFENDANT’S MOTION TO DISMISS; GRANTING PLAINTIFF LEAVE TO
                         FILE AN AMENDED COMPLAINT

                                     I. INTRODUCTION

       Plaintiff William Briscoe (“Briscoe”) was an employee in defendant Costco Wholesale

Corporation’s (“Costco”) Washington, D.C. warehouse. Briscoe, proceeding pro se, filed the

instant lawsuit against Costco and two of its employees in the Superior Court of the District of

Columbia alleging violations of the following laws: Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e; D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01,

et seq.; the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601; the D.C. Wage

Payment Act, D.C. Code § 32-1301, et seq; and various alleged privacy laws. 1 After Costco


       1
               Briscoe names two Costco employees as defendants: Mindy Pringle and Dave
[Last Name Unknown]. It remains unclear, however, whether either party was properly served,
which was the responsibility of the Superior Court because Briscoe was proceeding in forma
pauperis. Superior Court records indicate that a receipt of service was returned for these
defendants, but the alleged signatures of both were illegible, and thus the service was deemed
“questionable.” Nonetheless, it is unclear which of Briscoe’s claims actually are against the
individuals anyway, although it is well-settled that Title VII and DCHRA claims cannot be
asserted against a plaintiff’s co-workers. See, e.g., Uzoukwu v. Metro. Wash. Council of Gov’ts,
845 F. Supp. 2d 168, 171 (D.D.C. 2012) (Title VII); Hunter v. Ark Rests. Corp., 3 F. Supp. 2d 9,
17 (D.D.C. 1998) (DCHRA).
removed the action to this Court, the defendant filed a motion to dismiss Briscoe’s Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court

will grant Costco’s motion to dismiss. The Court, however, will grant Briscoe leave to file an

amended complaint.


                                II. FACTUAL BACKGROUND

       Before beginning, the Court notes that many of the factual allegations and legal theories

of relief in Briscoe’s Complaint are unclear and lack specificity, which makes evaluating the

factual and legal issues quite challenging at times. Nonetheless, the Court finds that Briscoe sets

forth the following facts in his Complaint, all of which must be accepted as true for purposes of

deciding Costco’s motion. 2

       Briscoe worked at Costco’s Washington, D.C. warehouse for fourteen to sixteen months,

with approximately six to seven of those months as a part-time employee, though it is unclear

when Briscoe actually started or stopped working for Costco. See Compl., ECF No. 1-1, at 1.

While employed at Costco, Briscoe requested time off to attend court-mandated matters for one

of his sons and to care for a daughter after she was sexually assaulted. See id. at 2-3.

Additionally, Briscoe requested a fifteen-minute change in his schedule and more breaks during


       2
                 The Court also notes that Briscoe asserts a variety of new facts in his response to
Costco’s motion to dismiss. An opposition brief cannot be used to put forth new allegations and
legal theories, and as such, the Court must ignore those facts for the purposes of deciding
Costco’s motion. See Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d 94, 114 (D.D.C. 2010).
Briscoe, of course, is free to include such facts in an amended complaint if he elects to file one.
In addition, Briscoe is cautioned that failure to respond to a legal argument made in a
defendant’s motion to dismiss can be treated as a concession of that argument and, thus, result in
dismissal of the cause of action. See Payne v. District of Columbia, 741 F. Supp. 2d 196, 221
(D.D.C. 2010) (explaining that when the plaintiff did “not address his hostile work environment
claim at all in his opposition brief,” the “Court may treat that claim as conceded”). Although
Briscoe is acting pro se and some leniency is appropriate, the basic procedural rules of this Court
still apply.

                                                  2
shifts in an apparent effort to better enable him to care for another son who suffered from a sleep

disorder and autism. See id. at 3. Costco denied each of Briscoe’s requests, but it appears that

Briscoe continued to work at Costco following the denials for an unknown length of time. See id.

at 3.

        At some unspecified time while employed at Costco, Briscoe was in a car accident that

forced him to miss more time from work. See id. at 4. Upon Briscoe’s return to Costco following

the accident, a Costco manager ordered him to lift fifty-pound bags despite having a doctor’s

note recommending otherwise. See id. Also following the accident, two Costco managers

laughed at Briscoe and said, “I guess [y]ou won’t get holiday pay” due to his absence. Id.

Additionally, Briscoe’s managers allegedly “harassed” him for seven to eight months, although

the exact details and timeline of what actually happened during this period are scarce and

confusing at best. See id. at 2. For example, Briscoe was told by a manager that “nobody told

him to get sick” after his release from the hospital, but little other details are provided. Id.

Further, Briscoe alleges that he was “disciplined” on several occasions for his unexcused

tardiness and missed shifts, although it is unclear what this discipline actually entailed and when

it occurred. Finally, Costco denied Briscoe’s request to transfer to a different store location

presumably closer to his home, but it is unclear when this request was made or whether Briscoe

remained at Costco afterwards. See id. at 3-4.

        Now before the Court is Costco’s motion to dismiss under Rule 12(b)(6). Costco’s

motion challenges Briscoe’s Title VII, DCHRA, FMLA, and privacy claims. For the reasons

discussed below, the Court will grant Costco’s motion to dismiss in its entirety. The Court,

however, will grant Briscoe leave to file an amended complaint because it appears plausible that




                                                   3
some of the factual and legal defects described herein may be cured through a more developed

and coherent filing.


                                           III. ANALYSIS

                                         A. Legal Standard

         The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) does not

test a plaintiff’s ultimate likelihood of success on the merits; rather, it tests whether a plaintiff

has properly stated a claim. See Greggs v. Autism Speaks, Inc., No. 13-1001, 2014 WL 2423981,

at *2 (D.D.C. May 30, 2014). A court considering such a motion presumes that the complaint’s

factual allegations are true and construes them liberally in the plaintiff’s favor. See Campbell v.

District of Columbia, 972 F. Supp. 2d 38, 44 (D.D.C. 2013). A court, however, need not accept a

plaintiff’s legal conclusions as true, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), nor must a

court presume the veracity of legal conclusions that are couched as factual allegations. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is not necessary for the plaintiff to plead all

elements of his prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S.

506, 511-14 (2002); Bryant v. Potomac Elec. Power Co., 730 F. Supp. 2d 25, 28-29 (D.D.C.

2010).

         When a pro se plaintiff is involved, “the Court must take particular care to construe the

plaintiff’s filings liberally, for such [filings] are held ‘to less stringent standards than formal

pleadings drafted by lawyers.’” Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107

(D.D.C. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Yet, “even a pro se

complainant must plead ‘factual matter’ that permits the court to infer ‘more than the mere

                                                   4
possibility of misconduct.’” Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681-82 (D.C.

Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Dismissal always remains appropriate “where the

plaintiff’s complaint provides no factual or legal basis for the requested relief.” Strunk v. Obama,

880 F. Supp. 2d 1, 3 (D.D.C. 2011) (internal citations omitted).

                                B. Title VII and DCHRA Claims

       Costco provides three arguments for dismissing Briscoe’s Title VII and DCHRA claims.

First, dismissal of the Title VII count is proper because Briscoe failed to exhaust his

administrative remedies. Second, dismissal is required because Briscoe failed to allege that he is

a member of a protected class under both Title VII and the DCHRA. Finally, Briscoe failed to

allege severe and pervasive harassment, which is a required element for a hostile work

environment claim. The Court addresses each of Costco’s arguments below.

                                  1. Title VII: Failure to Exhaust

       Costco asserts that dismissal of the Title VII count is appropriate because Briscoe failed

to exhaust his administrative remedies. Under Section 2000e–5(e), before asserting a Title VII

cause of action “a plaintiff must exhaust his administrative remedies by filing an EEOC charge

outlining his allegations.” Duberry v. Inter-Con Sec. Sys., Inc., 898 F. Supp. 2d 294, 298 (D.D.C.

2012) (citing 42 U.S.C. § 2000e–5(e)). In raising exhaustion as an affirmative defense, the

defendant “bears the burden of proving by a preponderance of the evidence that the plaintiff has

failed to exhaust his administrative remedies.” Ndondji v. InterPark Inc., 768 F. Supp. 2d 263,

276 (D.D.C. 2011) (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)). This

burden requires more than “[m]eager, conclusory allegations that the plaintiff failed to exhaust

his administrative remedies.” Dobbs v. Roche, 329 F. Supp. 2d 33, 38 (D.D.C. 2004). If the

defendant meets its burden, the burden shifts to the plaintiff to demonstrate that dismissal is not



                                                 5
warranted. See Dahlman v. Am. Ass’n of Retired Persons, 791 F. Supp. 2d 68, 76 (D.D.C. 2011)

(citing Bowden, 106 F.3d at 437). When a plaintiff fails to meet his burden by showing that he

exhausted the administrative remedies, dismissal is appropriate. See Gillet v. King, 931 F. Supp.

9, 12-13 (D.D.C. 1996).

       Although Costco argues that Briscoe failed to exhaust, the defendant only makes this

claim through one conclusory sentence which states that Briscoe did not “make any allegations

in his Complaint demonstrating that he exhausted his administrative remedies.” See Def.’s Mot.,

ECF No. 3-1, at 7. Costco, however, has the burdens switched: failure to exhaust is an

affirmative defense that must be pleaded and established by the defendant, and the plaintiff

therefore need not plead exhaustion in the complaint. See Moore v. District of Columbia, 445 F.

App’x 365, 366 (D.C. Cir. 2011) (“A plaintiff need not plead exhaustion in his complaint.”);

Peters v. District of Columbia, 873 F. Supp. 2d 158, 182 n.21 (D.D.C. 2012) (“The Court is

cognizant that because failure to exhaust administrative remedies is an affirmative defense, a

plaintiff does not need to plead exhaustion in a complaint.”). As such, the Court denies Costco’s

argument to dismiss the Title VII claim for failure to exhaust, although Costco remains free to

raise this issue consistent with the correct law if Briscoe elects to file an amended complaint.

                                   2. Title VII: Protected Class

       Costco argues that Briscoe fails to allege facts showing that he is a member of a protected

class under Title VII, which provides that “[i]t shall be an unlawful employment practice for an

employer … to discriminate against any individual … because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Among the prima facie elements of

a Title VII hostile work environment claim are that a plaintiff must show that he is a member of

one of these protected classes and that he was subjected to unwelcome harassment based on



                                                 6
membership in that class. See Nichols v. Truscott, 424 F. Supp. 2d 124, 139 (D.D.C. 2006)

(citing Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122-23 (D.C. Cir. 2000)). After

reviewing the complaint, it is clear that Briscoe provides no allegations from which the Court can

infer that he falls within one of the listed protected classes under Title VII. As such, the Court

grants Costco’s motion to dismiss the Title VII cause of action.

                                    3. DCHRA: Protected Class

        The DCHRA protects a broader set of classes than Title VII. See Lively v. Flexible

Packaging Ass’n, 830 A.2d 874, 887 (D.C. 2003) (“In amending the DCHRA in 1997, the

legislature emphasized … the fact that its coverage is wider than Title VII.”). Specifically, the

DCHRA covers discrimination and harassment related to “race, color, religion, national origin,

sex, age, marital status, personal appearance, sexual orientation, gender identity or expression,

family responsibilities, genetic information, disability, matriculation, or political affiliation,”

D.C. Code § 2-1402.11(a). The DCHRA further clarifies that “family responsibilities” refer to

“the state of being, or the potential to become, a contributor to the support of a person or persons

in a dependent relationship.” Id. § 2-1401.02(12).

        As previously noted, Briscoe asserts that he is the parent of an autistic son, another son

with legal problems, and a daughter who was sexually assaulted. Although the exact details are

sometimes unclear, at various times during his employment with Costco Briscoe was required to

miss or leave work to fulfill his parental responsibilities to these children, whom he supported.

Thus, construing these assertions in the most favorable light, Briscoe appears to be seeking

protection for “family responsibilities” due to his children, which qualifies as a protected class

under the DCHRA. See Blocker-Burnette v. District of Columbia, 842 F. Supp. 2d 329, 337




                                                   7
(D.D.C. 2012). Because Briscoe provides facts establishing himself as a member of a protected

class under the DCHRA, the Court denies Costco’s motion to dismiss on that ground.

                          4. DCHRA: Severe or Pervasive Harassment

       The legal standard for a hostile work environment claim under the DCHRA is

“substantial[ly] similar” to the standard for harassment claims under Title VII. See Carpenter v.

Fed. Nat’l Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999). In addition to alleging membership in

a protected class, a plaintiff asserting a DCHRA hostile work environment claim must show that

he endured harassment that was severe or pervasive such that it altered a term, condition, or

privilege of employment. See Odeyale v. Aramark Mgmt. Servs. Ltd. P’ship, 518 F. Supp. 2d

179, 183 (D.D.C. 2007). Further, that discrimination must have been based on his membership in

the protected class, as harassment on any other, non-protected grounds will not qualify under the

statute. See Kelley v. Billington, 370 F. Supp. 2d 151, 157 (D.D.C. 2005) (citing Jones v.

Billington, 12 F. Supp. 2d 1, 12 (D.D.C. 1997)). To make the “severe or pervasive” assessment, a

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 (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).

These standards “ensure that [an employment-discrimination law] does not become a general

civility code” that requires judges to police “the ordinary tribulations of the workplace.”

Faragher, 524 U.S. at 788 (citation and internal quotation marks omitted); see also Allen v.

Napolitano, 774 F. Supp. 2d 186, 204-06 (D.D.C. 2011) (plaintiff’s claims of a hostile work



                                                 8
environment, including denial of multiple training opportunities and a non-selection for a

position, amount to nothing more than typical employment grievances and ordinary workplace

conflict and therefore are insufficiently severe or pervasive to support a hostile work

environment claim).

       As explained above, Briscoe alleges sufficient facts to demonstrate his inclusion in the

protected class of “family responsibility.” The Court therefore must limit its review of the

Complaint only to those facts in which the allegedly hostile acts were due to Briscoe’s

membership in that class. Cf. McCaskill v. Gallaudet Univ., No. CV 13-1498, 2014 WL

1443472, at *7 (D.D.C. Apr. 14, 2014) (“Even if the treatment to which Plaintiff was subjected

could plausibly occasion a hostile-work-environment claim … she has offered no facts to support

the contention that such alleged mistreatment was due to her membership in any protected

class.”). Upon a careful review of Briscoe’s Complaint and granting all reasonable inferences in

his favor, the Court finds that Briscoe has failed to allege sufficient facts to survive Costco’s

motion to dismiss the DCHRA count.

       First, Briscoe alleges that after his daughter was sexually assaulted, Costco docked his

allotted sick leave as discipline for him not coming into work. But reducing Briscoe’s allowed

time off after he missed shifts at work hardly qualifies as harassment, particularly when there is

no suggestion that Costco actually knew the reason for Briscoe missing work. Instead, at best

this appears to be nothing more than a legitimate reaction by an employer to an employee taking

multiple unscheduled and unsanctioned days off, and as such, there is no basis on which to infer

that Costco acted with any discriminatory purpose in making the decision. See Childs-Pierce v.

Util. Workers Union of Am., 383 F. Supp. 2d 60, 79 (D.D.C. 2005) (explaining that plaintiff’s

five-day “suspension was a legitimate non-discriminatory act brought about by plaintiff’s own



                                                  9
misconduct. Therefore, plaintiff cannot rely on the suspension … as evidence of a pervasively

hostile work environment.”). And to the extent Briscoe also is alleging that he suffered other

discipline as a result of caring for his daughter following the sexual assault, those allegations are

so lacking in specificity that they offer no basis for the Court to reach a different result. See

Richards v. Duke Univ., 480 F. Supp. 2d 222, 235 (D.D.C. 2007) (“The Court does not have to

accept asserted inferences or conclusory allegations that are unsupported by facts set forth in

plaintiff’s complaint.”).

       Second, the Complaint states that Briscoe’s son — “son #3” — suffers from autism and a

sleep disorder that caused Briscoe to arrive late for work. Again, Briscoe baldly asserts that he

was “disciplined” for arriving late or missing shifts, but he provides no details about what this

discipline actually entailed or how it possibly qualifies as “severe or pervasive.” Absent more

information regarding the nature and extent of the discipline imposed, the Court cannot find that

such action qualifies as severe or pervasive based on these conclusory allegations alone.

       Briscoe also alleges that he requested a fifteen-minute change in his schedule to

accommodate his tardiness that occurred as a result of his caring for “son #3,” a request which he

suggests other employees working the same shift were granted. Even so, there are no specific

facts in the Complaint suggesting that Costco knew at the time it initially denied his request that

Briscoe was late for work because of his son’s conditions, thus making any suggestion of

discriminatory intent highly implausible — and therefore fatal to Briscoe’s DCHRA claim.

Instead, this once again appears to be little more than an employer reacting to an employee

showing up late to work unexcused. Cf. Childs-Pierce, 383 F. Supp. 2d at 79 (explaining that

when the employer “had a legitimate, non-discriminatory reason for denying plaintiff sick leave




                                                  10
and requiring her to submit various forms of medical verification,” plaintiff “cannot rely on the

denial of sick leave and related events as a basis for her hostile work environment claim”).

        But even if the Court assumed Costco was aware that Briscoe’s tardiness was related to

his family responsibility such that some discriminatory intent might be inferred, Briscoe’s

allegations still fall well short. That is because Costco’s denial of the request for a minor, fifteen-

minute change in Briscoe’s schedule simply does not qualify as severe or pervasive harassment.

Rather, the denial of this request is more correctly described as an isolated incident than as

pervasive conduct that might plausibly have created a hostile condition. See McCain v. CCA of

Tennessee, Inc., 254 F. Supp. 2d 115, 121 (D.D.C. 2003) (“[A]lleged harassment is generally not

held to be sufficiently severe or pervasive to create a hostile work environment where it is

limited to isolated incidents.”).

        Similarly, the expectation that Briscoe arrive at work a few minutes earlier than he would

prefer is a minor inconvenience at best, not the type of behavior that “alter[s] the conditions of

the victim’s employment and create[s] an abusive working environment.” Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 81 (1998); see also Lester v. Natsios, 290 F. Supp. 2d 11, 33

(D.D.C. 2003) (“Discrete acts constituting discrimination or retaliation claims … are different in

kind from a hostile work environment claim that must be based on severe and pervasive

discriminatory intimidation or insult.”). Indeed, such an inconvenience appears to be nothing

more than part of “the ordinary tribulations of the workplace,” Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998) — not conduct for which an employee is entitled to legal redress under

the DCHRA because it created “an abusive working environment.” Harris v. Wackenhut Servs.,

Inc., 590 F. Supp. 2d 54, 74 (D.D.C. 2008).




                                                  11
       Third, Briscoe’s muddled allegations regarding “son #1” fail for similar reasons. In the

Complaint, Briscoe appears to be asserting that at an unknown time his son was arrested for a

crime and held in “custody” somewhere, presumably a jail or prison. Briscoe further alleges that

he was denied time off on the only days in which he could visit his son over the course of

multiple weeks, although the exact number of weeks is not given. Briscoe also appears to assert

that he was forced to call out of work to attend court-ordered family therapy sessions with his

son and that Costco threatened to fire him if he missed more work, but the exact nature of

Briscoe’s claim is difficult to decipher.

       Once again, there is no suggestion that the threat to terminate Briscoe or the denial of

time off on an unknown number of occasions was due to a discriminatory purpose, which means

the DCHRA claim fails. Even generously granting Briscoe the inference of discriminatory intent,

he appears to have remained a Costco employee following these events, and he does not allege

any actual consequences imposed by Costco other than the denial itself. As such, his “claims of

harm are not supported by evidence of tangible workplace consequences, whether financial,

physical, or professional.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008).

Accordingly, Costco’s denial of the requests for days off, scheduling changes, or other

accommodations to his employment — and the related warnings to stop missing work and

coming in late under the threat of firing — did not create an objectively hostile environment as a

matter of law. Cf. Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x 913, 917 (5th

Cir. 2006) (evidence that the “employer treated [plaintiff] worse than non-African-American

pharmacists in terms of scheduling, work performance expectations, and disciplinary incidents

(including threats of termination)” did not constitute an objectively hostile work environment);

Jones v. City of Chicago, No. 07 C 4646, 2008 WL 5111179, at *6 (N.D. Ill. Dec. 4, 2008)



                                                12
(finding that employer’s “[d]enial of paid time off to attend [extracurricular learning]

conferences does not, either objectively or subjectively, constitute hostile or abusive conduct”

under Title VII); Townsend v. Harvey, No. SA-05-CA-1140, 2006 WL 2605710, at *6 (W.D.

Tex. Sept. 11, 2006) (explaining that “[w]hat plaintiff has alleged can most objectively be

characterized as criticism of her work performance and attendance…. [C]riticism of an

employee’s work performance, and even a direct threat to terminate an employee, are legally

insufficient to establish a hostile work environment”).

       Fourth, Briscoe alleges that he was denied a request to transfer to a different Costco

location, although it is unclear when this request was made in relation to the other events Briscoe

describes, where exactly Briscoe wanted to transfer, or why this transfer was necessary. Without

such information it is difficult, if not impossible, for the Court to evaluate Briscoe’s claim. In

addition, and more fatally, there are no facts from which the Court could infer that the denial of

Briscoe’s transfer request was the result of discrimination based on his family responsibilities. In

fact, the Complaint clearly indicates that Briscoe requested the transfer following his car

accident, not for any family responsibility reason.

       But even if the Court granted Briscoe the extraordinary inference that the denial was

somehow made for a discriminatory purpose, Costco’s decision, without more facts, again failed

to alter the terms and conditions of Briscoe’s employment such that it created a hostile work

environment as a matter of law. Cf. Dorns v. Geithner, 692 F. Supp. 2d 119, 126-28, 135-36

(D.D.C. 2010) (concluding that plaintiff’s hostile work environment claim, which included

denial of requests for transfers or details to other positions and denial of four training courses,

was not sufficiently severe or pervasive to be actionable); Nurriddin v. Bolden, 674 F. Supp. 2d

64, 93-94 (D.D.C. 2009) (finding insufficient allegations for a hostile work environment claim



                                                  13
when plaintiff alleged that “management passed him over for performance awards, lowered his

performance evaluations, unfairly reprimanded and criticized him, made disparaging remarks

about his EEO complaints, closely scrutinized his work, refused him a window cubicle, removed

some of his duties, … denied his requests to travel or otherwise failed to provide support for his

work with staffing and funding [, ...] den[ied] a noncompetitive promotion, den[ied] a within-

grade increase, and oppos[ed] his transfer to another office or detail assignment”);Charles v.

Connecticut, Judicial Branch, Court Support Servs. Div., 556 F. Supp. 2d 123, 132-33 (D. Conn.

2008) (concluding that state agency officials’ denial of employee’s request for transfer did not

alter terms and conditions of her employment, and thus did not create hostile work environment

under Title VII, where there was no evidence that her workplace was severely permeated with

discriminatory intimidation, ridicule, and insult, that terms and conditions of her employment

were altered in any way, or that transfer denial was motivated by employee’s race).

       Perhaps in theory the denial of Briscoe’s request to transfer could have created a hostile

environment by forcing him to remain at a store further away from his home following the

denial. Briscoe, however, clearly already had elected to work at the first location when he

accepted employment there, so it is unclear how remaining at the same store after the denial

suddenly became a hostile condition. But even assuming that changing external conditions for

his family responsibilities made staying at the location more than a mere inconvenience and

somehow prevented him from performing his job all of a sudden, the Court simply has no idea

how long Briscoe worked at Costco after the denial of his request. He could have quit the next

day, or he could have worked there for several more months. Because Briscoe does not allege

any facts demonstrating when he actually stopped working at Costco — or any specific facts




                                                14
regarding his family responsibilities during the post-transfer request timeframe — the Court has

no basis to sustain Briscoe’s claim on this highly speculative ground.

           Finally, Briscoe provides allegations about a few statements made to him by Costco

employees. Of course, only such statements related to Briscoe’s family responsibilities are

actionable, which makes almost all of the allegations legally irrelevant. Nonetheless, Briscoe

does claim that a Costco manager once said that his son “can’t be autistic everyday,” apparently

referring to Briscoe’s repeated tardiness and related requests for a later start time. See Pl.’s Mem.

in Opp’n, ECF No. 8, at 2. The Court, however, cannot take this allegation into consideration

because it is axiomatic that a plaintiff may not amend the complaint through facts first alleged in

an opposition brief. See, e.g., Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d 94, 114 (D.D.C.

2010). 3

           For the reasons discussed above, the Court finds that Briscoe has failed to allege facts

demonstrating that he endured harassment that was severe or pervasive such that it altered a

term, condition, or privilege of employment. At best, Briscoe describes a series of isolated

decisions by Costco that appear to have had no effect on his actual employment conditions, other

than perhaps making him work a slightly different schedule than he preferred. There also are

inadequate facts suggesting that any action taken by Costco was due to discrimination based on

Briscoe’s family responsibilities, as the DCHRA requires. Accordingly, the Court grants

Costco’s motion to dismiss the DCHRA claim.



           3
               But even if the Court was to give it consideration, courts consistently have held
that one statement, no matter how offensive, typically is insufficient to maintain a hostile work
environment claim. See George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (“[I]solated
incidents (unless extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” (citations and internal quotation omitted)). The statement about
Briscoe’s son clearly is not the type that qualifies as an “extremely serious” incident.

                                                    15
                                           C. FMLA

       Costco argues that Briscoe’s interference claim under the FMLA should be dismissed

because Briscoe did not allege facts showing that he was an eligible employee at the time he

requested leave. 4 The FMLA requires that employers give “eligible employees” up to twelve

weeks leave during any twelve-month period due to a serious health problem, a family member’s

serious illness, or the arrival of a new son or daughter “that makes the employee unable to

perform.” 29 U.S.C. § 2612(a)(1). Under the FMLA, an eligible employee is an employee of a

covered employer who has been employed for at least 1,250 hours of service during the twelve-

month period immediately preceding the commencement of the leave. See 29 C.F.R. §

825.110(a)(2). The determination of whether an employee meets the hours of service

requirement is made at the date the FMLA leave is to start. See id. § 825.110(d); see also Butler

v. Owens-Brockway Plastics Prods., Inc., 199 F.3d 314, 315-16 (6th Cir. 1999) (holding that the

hours must be computed from the date of commencement of leave). A plaintiff bears the burden

of establishing that he was entitled to FMLA leave; otherwise, dismissal is required. See

Hollabaugh v. Office of the Architect of the Capitol, 847 F. Supp. 2d 57, 65-66 (D.D.C. 2012).

       Although Briscoe asserts that he worked at Costco for about fourteen to sixteen months,

he also alleges that he “did not become full time until well after 6-7 months.” Compl., ECF No.

1-1, at 2. But there are no factual allegations regarding the hours he worked, or even when

exactly he supposedly requested the qualifying leave. It also is unknown when the leave

supposedly would have started such that the Court might know the twelve-month period in which

to count Briscoe’s hours. As such, the Court has no basis for determining whether Briscoe was

       4
                 The FMLA authorizes two types of claims: interference claims under § 2615(a)(1)
and retaliation claims under § 2615(a)(2). The Complaint does not specify whether Briscoe also
asserts a retaliation claim, but he will be given the opportunity to clarify through an amended
complaint.
                                                16
an eligible employee under the statute, and Briscoe therefore falls well short of meeting his

burden. Accordingly, the Court grants Costco’s motion to dismiss the FMLA cause of action. 5

                                        D. Privacy Claims

       Finally, Costco contends that Briscoe’s claims under the “D.C. Child Privacy Act” and

the “Health Privacy Act of 1996” must be dismissed because these are not actual statutes under

the laws of the United States or the District of Columbia. Dismissal, of course, is required when

a plaintiff fails to identify a legitimate legal basis for a cause of action. The Court agrees with

Costco that there is no “D.C. Child Privacy Act” or a “Health Privacy Act of 1996.” There are,

however, similar sounding laws such as the D.C. Prevention of Child Abuse and Neglect Act,

and the federal Health Insurance Portability and Accountability Act of 1996. But neither of these

statutes creates a private cause of action under which an employee can bring a claim against his

private employer, as Briscoe seems to attempt here. See D.C. Code § 4-1302.09 (“All violations

of [the D.C. Prevention of Child Abuse and Neglect Act] shall be prosecuted by the Corporation

Counsel of the District of Columbia or his or her designee in the name of the District of

Columbia.”); Want v. Express Scripts, Inc., 862 F. Supp. 2d 14, 19 (D.D.C. 2012) (“HIPPA does

not authorize an individual to bring a private cause of action.”); Bibeau v. Soden, No. 808-CV-

0671, 2009 WL 701918, at *6 (N.D.N.Y. Mar. 13, 2009) (“If a HIPPA violation occurs, the

statute does not provide a private cause of action to the individual but merely provides an

enforcement mechanism for the Secretary of Health and Human Services.”). Because it does not

       5
                 Costco also argues that Briscoe did not assert facts showing that he was denied
leave to which he was entitled under the FMLA. Briscoe appears to allege that Costco violated
the FMLA when it denied requests related to his daughter’s sexual assault, his son’s probation
visits, and for an alternate schedule with more breaks and a later start time. See Compl., ECF No.
1-1, at 3-4. All these requests, however, appear to be for scheduling changes that are generally
outside the protections of the FMLA. See Jenkins v. Rinaldi, No. 1:99CV629, 2001 WL
34564362, at *5 (M.D.N.C. Mar. 23, 2001) (“[T]he FMLA is, by its terms, a leave act, not a
scheduling act.”). Again, Briscoe can clarify these ambiguities in an amended complaint.

                                                  17
appear that Briscoe is asserting any cognizable legal theory regarding these issues, the Court

grants Costco’s motion to dismiss the claims. 6


                                    IV. LEAVE TO AMEND

       Pursuant to Rule 15, a court should grant leave to amend a complaint when “justice so

requires.” Fed. R. Civ. P. 15(a)(2); see also Willoughby v. Potomac Elec. Power Co., 100 F.3d

999, 1003 (D.C. Cir. 1996). In addition, “when a claim is so ambiguous as to leave its viability in

doubt, the appropriate action is to grant leave to amend.” B.R. ex rel. Rempson v. District of

Columbia, 524 F. Supp. 2d 35, 42 (D.D.C. 2007). This is particularly true when the claimant is

acting pro se because “an added measure of leniency is extended to pro se litigants with regard

to procedural requirements.” Plummer v. Safeway, Inc., 934 F. Supp. 2d 191, 197 (D.D.C. 2013)

(citing Moore v. Agency for Int’l Dev., 994 F.2d 874, 877 (D.C. Cir. 1993)). Granting Briscoe the

benefit of the doubt that it remains possible for him to assert a sufficient claim if he provides

additional facts and clarity in a future filing, the Court will grant him leave to file an amended

complaint. 7


       6
                Separately, in the District of Columbia, law enforcement records and files
concerning a child are generally not open to public inspection, see D.C. Code § 16-2333, and a
juvenile’s court records can be sealed pursuant to D.C. Code § 16-2335, which provides that “a
juvenile shall not be required to disclose and shall have the right to refuse disclosure of his or her
juvenile delinquency history in an application for employment, education, or housing.” It
remains unclear, however, whether these or any other similar protections might apply to
Briscoe’s son because the Complaint does not include the son’s age. It also is unclear if these
laws would permit a private cause of action in the first place, but the Court need not reach that
question at this time.
       7
               Costco’s motion to dismiss does not address Briscoe’s claim under the D.C. Wage
Payment Act, which requires employers to pay all wages earned to employees. See D.C. Code §
32-1302. The Act is narrowly constructed and applies only when wages are not in dispute, as the
law “functions as an exception (for disputed wages) to the [Act’s] requirement.” Fudali v.
Pivotal Corp., 310 F. Supp. 2d 22, 29 (D.D.C. 2004). It is unclear if Briscoe alleges a valid claim
given the limited facts in the Complaint, but the Court need not address the issue at this time
because Costco does not move to dismiss it. If Briscoe clarifies such a claim in an amended
                                                  18
                                      V. CONCLUSION

       For the foregoing reasons, the Court grants Costco’s motion to dismiss. The Court,

however, grants Briscoe leave to file an amended complaint within thirty days of this decision.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.


Dated: July 29, 2014                                             RUDOLPH CONTRERAS
                                                                 United States District Judge




complaint, Costco will have more information on which to assess whether to move to dismiss the
cause of action.
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