                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

RICHARD B. SMITH,                                 :
                                                  :
               Plaintiff,                         :     Civil Action No.:    12-296 (RC)
                                                  :
               v.                                 :     Re Document No.:     28
                                                  :
DE NOVO LEGAL, LLC                                :
                                                  :
               Defendant.                         :

                                  MEMORANDUM OPINION

      GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION TO DISMISS

                                      I. INTRODUCTION

       The plaintiff in this matter alleges that he was subjected to a hostile work environment

and retaliation in violation of Title VII and 42 U.S.C. § 1981. Now before the court is the

defendant’s motion to dismiss. For the reasons explained below, the court will dismiss the

plaintiff’s hostile work environment claim but allow his retaliation claim to proceed to discovery.

             II. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

       The plaintiff is a white contract attorney who alleges that he suffered racial

discrimination at the hands of his black co-workers. The plaintiff’s employment only lasted for

three months. 3d Am. Compl. ¶ 2. The plaintiff’s claim revolves around a handful of awkward

interactions with his co-workers whenever their conversation turned to the subject of race. For

instance, one day at work, a co-worker stated, “I voted for Obama because of the melanoma [sic]

in his skin. I voted for Obama because he is black.” The plaintiff claims that he was “humiliated

and intimidated.” Although another co-worker told him that it was just a joke, the plaintiff

remained offended and humiliated by their laughter. Id. ¶¶ 3–4. A few days later, another co-

worker asked about the plaintiff’s heritage. The plaintiff said that he was of English/Irish stock.
The co-worker responded by indicating that the plaintiff had African roots, “because everyone is

from Africa.” According to the plaintiff: “This was an attempt to establish African heritage as

superior to my heritage. Again, I felt humiliated and intimidated.” Id. ¶ 5. Later, the plaintiff

was speaking with a co-worker regarding the inflammatory comments of a New Black Panther

who had once stated: “You want freedom? You will have to kill some crackers. You’re going to

have to kill some of their babies!” Another co-worker (somewhat ambiguously) interjected:

“That is every day in America.” The plaintiff interpreted this “to be a threat of violence.” He

maintains that he felt “shocked and scared.” Id. ¶ 6.

       At some point, the plaintiff was accused of making racist remarks. Id. ¶ 8. In a

conversation with his supervisor, the plaintiff denied the accusation and insisted that he was the

victim—not the perpetrator—of racial discrimination. Id. The supervisor did not investigate the

plaintiff’s allegation, however. Instead, the supervisor asked the plaintiff to change his seating.

Id. ¶ 11. The plaintiff insists that he was nevertheless subjected to further acts of racial hostility.

For instance, one day the plaintiff went to use a communal computer and he found the web

browser open to a website called “Black Snob.” Id. ¶ 12. In addition, a co-worker asked the

plaintiff if he had any black friends. When the plaintiff refused to answer, the co-worker moved

to the other side of the office and sat with several other black co-workers. Id. ¶ 13. The plaintiff

“felt isolate [sic] and humiliated.” Id. Approximately one month after he complained of racial

discrimination to his supervisor, the plaintiff was fired. Id. ¶ 17.

                                          III. ANALYSIS

                A. Legal Standard for a Motion to Dismiss Under Rule 12(b)(6)

       All that the Federal Rules of Civil Procedure require of a complaint is that it 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), see Erickson v. Pardus, 551 U.S.

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89, 93 (2007). 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 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes

the factual allegations of the complaint to be true and construes them liberally in the plaintiff’s

favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It

is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25,

28–29 (D.D.C. 2010).

        Nevertheless, “[t]o 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, 677 (2009) (internal quotation marks omitted). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,” are therefore

insufficient to withstand a motion to dismiss. Id. A court need not accept a plaintiff’s legal

conclusions as true, id., nor must the court presume the veracity of legal conclusions that are

couched as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

                             B. Hostile Work Environment (Count I)

        A plaintiff may establish a violation of Title VII by proving that the employer created or

condoned a discriminatorily hostile or abusive work environment.1 Casey v. Mabus, 2012 WL

2951372, at *4 (D.D.C. July 20, 2012); see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64–

67 (1986); Gary v. Long, 59 F.3d 1391, 1395 (D.C. Cir. 1995). Discrimination in this form

occurs “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and

1
        The plaintiff’s 42 U.S.C. § 1981 claim is assessed under the same legal standard. Sparrow v.
        United Air Lines, Inc., 216 F.3d 1111, 1114 n.3 (D.C. Cir. 2000).


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create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(citation and internal quotation marks omitted). To determine whether a hostile work

environment existed, the court must examine all the circumstances of a plaintiff’s employment,

including: the frequency of the discriminatory conduct, its severity, whether it was threatening

and humiliating (or was merely offensive), and whether it unreasonably interfered with the

employee’s work performance. Harris, 510 U.S. at 23. But it is clear that “‘simple teasing,’

offhand comments, and isolated incidents (unless extremely serious)” will not constitute a hostile

work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). These standards for judging

hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility

code.’” Id. (quoting Oncale, 523 U.S. at 82).

       In light of this demanding standard, the court concludes that the plaintiff has not set forth

a plausible claim to relief. First of all, the court doubts that the defendant’s alleged conduct

could be characterized as “frequent.” It instead appears that the plaintiff was exposed to a

handful of unwelcome comments. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002)

(noting that “a few isolated incidents do not amount to actionable harassment”); Roof v. Howard

Univ., 501 F. Supp. 2d 108, 114 (D.D.C. 2007) (same). It does not appear, based on the

plaintiff’s allegations, that the workplace was “permeated with discriminatory intimidation,

ridicule, and insult.” See Harris, 510 U.S. at 21 (emphasis added); Baloch v. Kempthorne, 550

F.3d 1191, 1201 (D.C. Cir. 2008) (concluding that the plaintiff’s “assertion of pervasive and

constant abuse is undermined by the sporadic nature of the conflicts”). If anything, the alleged

conduct could only be deemed “frequent” because the plaintiff lists each and every incident that

he found to be uncomfortable. Some of these statements were innocuous: for example, the



                                                  4
plaintiff was asked if he had any black friends. 3d Am. Compl. ¶ 13. Other acts were not

directed at the plaintiff: for example, the plaintiff complains that he stumbled upon a website

called “Black Snob,” but it is not alleged that this act targeted him. See Lester v. Natsios, 290 F.

Supp. 2d 11, 31 (2003) (noting that “[c]onduct directed at others rather than at plaintiff . . . is less

indicative of a hostile work environment”).

        At the heart of the plaintiff’s complaint, then, is the allegation that he was subjected to a

few offhand comments: to wit, a co-worker’s perplexing comment regarding the New Black

Panther Party, another co-worker’s comment on President Obama’s skin tone, or another’s wry

observation that all humans are descended from ancestors in Africa. 3d Am Compl. ¶¶ 5–6. The

court cannot conclude that these comments are severe enough to trigger liability under Title VII.

For even if these incidents were indecorous, “a lack of racial sensitivity does not, alone, amount

to actionable harassment.” Faragher, 524 U.S. at 787. Even if the plaintiff’s sensibilities were

offended by the remarks, the “[m]ere utterance of an . . . epithet which engenders offensive

feelings in an employee” does not constitute a hostile work environment. Id. Title VII is not

meant to impose a “civility code” on the workplace. Oncale, 523 U.S. at 82. Viewed in their

totality, these “offhand comments” and “isolated incidents” are not sufficiently severe to trigger

Title VII’s protections. Id. at 788. Finally, the plaintiff complains that he was asked to change

his seating, but such a trivial inconvenience does not give rise to a viable claim. See Casey v.

Mabus, 2012 WL 2951372, at *4 (“The plaintiff’s exclusion from the planning and presentation

of training courses were, at best, obnoxious discourtesies and, at worst, manifestations of

organizational dysfunction. But in either case, these allegations fall far short of the extreme

behavior contemplated by the protections of the hostile work environment doctrine.”).

Accordingly, the court will grant the defendant’s motion to dismiss Count I.



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                                     C. Retaliation (Count II)

        To prove unlawful retaliation under Title VII, an employee must establish the following

three elements: first, that he engaged in protected activity; second, that he was subjected to

adverse action by the employer; and third, that there existed a causal link between the adverse

action and the protected activity. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).2 The

defendant has not challenged the plaintiff’s allegation that he engaged in protected activity. The

plaintiff’s allegations also satisfy the second element because termination is undoubtedly an

adverse employment action. Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009). The only

remaining element is causation, which may be inferred—especially at the pleading stage—when

the retaliatory act follows close on the heels of the protected activity. Here, the plaintiff alleges

that his employment was terminated only a month after he complained of racial discrimination.

The timing is suspicious enough for the court to infer causation. See Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273–74 (2001) (noting that close temporal proximity may give rise to an

inference of causation); Stone-Clark v. Blackhawk, Inc., 460 F. Supp. 2d 91, 98 (D.D.C. 2006)

(concluding that a one-month lapse between protected activity and retaliation could give rise to

an inference of causation). Thus, the plaintiff has adequately stated a prima facie case of

retaliation.

        The defendant argues that the plaintiff has not alleged that he was fired by someone who

knew about the plaintiff’s protected activity. See Jones v. Bernanke, 557 F.3d 670, 679 (D.C.

Cir. 2009); Newton v. Office of the Architect of the Capitol, 840 F. Supp. 2d 384, 400 (D.D.C.

2
        The legal standard for the plaintiff’s 42 U.S.C. § 1981 claim is identical. CBOCS West., Inc. v.
        Humphries, 553 U.S. 442, 457 (2008); see Fair Emp. Council v. BMC Mktg. Corp., 28 F.3d 1268,
        1279–80 (D.C. Cir. 1994) (“Implicit in § 1981 . . . is a cause of action protecting people from
        private retaliation for . . . exercising their own § 1981 rights.”).




                                                   6
2012) (granting summary judgment on the plaintiff’s retaliation claim because “[t]he person

taking the allegedly retaliatory actions must have knowledge of the protected activity in order to

retaliate for the activity”). But it would be premature to dismiss on this ground, for the plaintiff

is not required to plead each and every element of his prima facie case. Bryant v. Pepco, 730 F.

Supp. 2d 25, 28–29 (D.D.C. 2010). In addition, the defendant argues that the plaintiff was fired

because “his project had ended.” At this early stage of the litigation, it is hard to see why this

vaguely worded statement should insulate the defendant from liability. Perhaps the defendant is

hinting it had a legitimate, non-discriminatory reason for its acts, but that is a fact-sensitive

inquiry that can only be undertaken after discovery has run its course. See Gill v. Mayor of

District of Columbia, 2007 WL 1549100, at *4 (D.D.C. May 25, 2007) (denying the defendant’s

motion to dismiss and concluding that “defendants are jumping ahead to the evidentiary standard

established by McDonnell Douglas rather than the liberal pleading standard at the motion to

dismiss stage”). Moreover, the abrupt fashion in which the plaintiff was terminated, see 3d Am.

Compl., Ex. 1 (“Unfortunately the project has ended for you and today was your last day. We

will be sending your personal belongings to the address listed on file with us.”), suggests that

there may be more to this story than the simple ending of a term of employment.

       In sum, the plaintiff alleges that he complained of racial discrimination to his supervisor,

and shortly thereafter he was fired with little explanation. These allegations are detailed enough

to withstand the defendant’s motion. See Arafi v. Mandarin Oriental, 2012 WL 2021889, at *8

(D.D.C. June 6, 2012) (concluding that a plaintiff had plausibly alleged a Title VII retaliation

claim even though it was “far from a model of clarity”). Accordingly, the court will deny the

defendant’s motion to dismiss Count II.




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                                      IV. CONCLUSION

       For the aforementioned reasons, the court will grant in part and deny in part the

defendant’s motion. An order consistent with this memorandum opinion is separately issued this

21st day of November, 2012.

                                                             RUDOLPH CONTRERAS
                                                             United States District Judge




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