United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 12, 2014               Decided June 23, 2015

                         No. 13-7043

                    ANTHONY S. HARRIS,
                       APPELLANT

                              v.

  DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY,
                      APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:12-cv-01453)


    John Wesley Davis argued the cause and filed the briefs for
appellant.

     Grace E. Speights argued the cause for appellee. With her
on the brief was Jocelyn R. Cuttino.

    Before: GARLAND, Chief Judge, and TATEL and
SRINIVASAN, Circuit Judges.

    Opinion for the Court filed by Chief Judge GARLAND.
                                2
     GARLAND, Chief Judge: Plaintiff Anthony S. Harris worked
for the District of Columbia Water and Sewer Authority
(WASA) for sixteen years. After losing his job, Harris sued his
former employer on a number of grounds, including violating
Title VII of the Civil Rights Act of 1964 by retaliating against
him for opposing racially discriminatory employment practices.
The district court dismissed the case, holding that Harris’
complaint failed to sufficiently allege a causal connection
between his opposition to WASA’s alleged discrimination and
his termination. Because the complaint did allege sufficient
facts to render Harris’ Title VII claim plausible, we reverse.

                                I

    Accepting, as we must, the factual allegations in Harris’
complaint as true, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), the facts of this case are relatively straightforward. In
September 1995, Harris began work at WASA as a systems
operations manager. During his time there, Harris made a
number of significant contributions to WASA’s maintenance
operations, including innovations in administrative processing
of work orders, preventative maintenance scheduling, inventory
control, and financial planning. As a result, Harris was regularly
commended for his work and for his contributions to the
improvement of WASA’s operations. See Compl. ¶¶ 6, 9-10.

      Around 2009, Harris and other WASA employees began to
notice that WASA was terminating a significant number of
black employees and replacing them with white employees.
Around the same time, Harris became aware that WASA had
hired a number of consultants and contract employees, many of
whom were only marginally qualified and several of whom had
little or no work to do. In January 2011, Harris wrote a letter to
then-Mayor Vincent Gray complaining about problems at
WASA, including racial discrimination. In February 2011, he
                               3
wrote a similar letter to the committee of the District of
Columbia City Council with oversight authority over WASA.
In May 2011, WASA officials contacted Harris to arrange a
meeting to discuss his January letter. That meeting was
canceled and never rescheduled. See Compl. ¶¶ 11-14, 17-19.

     On October 6, 2011, Harris took a leave of absence from
WASA to undergo surgery for chronic kidney failure, which had
forced him onto an adjusted work schedule to accommodate his
dialysis. On October 11, Harris informed WASA that, per his
physician’s instructions, he would be unable to return to work
until October 26. On October 13, WASA informed Harris that
his position had been abolished; it did not, however, provide him
with an opportunity to apply for other vacant positions for which
he might qualify. Notwithstanding the formal abolition of
Harris’ position, the functions of that position continued to be
performed at WASA. See Compl. ¶¶ 20-28.

     Harris filed suit against WASA, alleging that he was
terminated in retaliation for his January and February letters
opposing WASA’s racially discriminatory practices, in violation
of Title VII and 42 U.S.C. § 1981. Harris also stated a number
of claims under D.C. law, including a claim that WASA violated
the D.C. Family and Medical Leave Act, which prohibits
employers from retaliating against employees for taking medical
leave. D.C. CODE §§ 32-503, -507; D.C. MUN. REGS. tit. 4,
§ 1621.1. In lieu of filing an answer, WASA filed a motion to
dismiss Harris’ action for “failure to state a claim upon which
relief can be granted.” FED. R. CIV P. 12(b)(6).

     The district court granted the motion. It dismissed Harris’
Title VII and § 1981 claims, finding that his complaint failed to
sufficiently allege a causal connection between his protected
activity (the January and February letters) and his termination,
as required to state a retaliation claim. Harris v. D.C. Water &
                                  4
Sewer Auth., 922 F. Supp. 2d 30, 34-36 (D.D.C. 2013). With no
federal claims remaining in the case, the court declined to
exercise supplemental jurisdiction over Harris’ D.C. law claims
and dismissed those claims as well. Id. at 36.

     Harris filed a timely notice of appeal. On appeal, he argues
that the district court erred in dismissing his Title VII and
§ 1981 claims because his complaint did adequately allege
causation. He also argues that, because the district court should
not have dismissed his federal claims, his D.C. law claims
should be reinstated as well.

                                  II

     We review a district court’s dismissal of a complaint for
failure to state a claim de novo. Kassem v. Wash. Hosp. Ctr.,
513 F.3d 251, 253 (D.C. Cir. 2008). “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
Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. But “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”             Id.     Accordingly,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.

     The misconduct alleged here is unlawful retaliation in
violation of Title VII, which both prohibits employers from
engaging in employment practices that discriminate on the basis
of race, see 42 U.S.C. § 2000e-2(a), and bars them from
retaliating against an employee “because he has opposed any
[such] practice,” id. § 2000e-3(a). See McGrath v. Clinton, 666
                                 5
F.3d 1377, 1379-80 (D.C. Cir. 2012). The complaint also
alleged that WASA’s unlawful retaliation violated § 1981,
which provides that “[a]ll persons . . . shall have the same right
. . . to the full and equal benefit of all laws.” 42 U.S.C. § 1981.
“To prove unlawful retaliation, a plaintiff must show: (1) that
he opposed a practice made unlawful by Title VII; (2) that the
employer took a materially adverse action against him; and (3)
that the employer took the action ‘because’ the employee
opposed the practice.” McGrath, 666 F.3d at 1380; see
McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611
F.3d 1, 6 (D.C. Cir. 2010) (suggesting that the frameworks
applicable to claims of retaliation under Title VII and § 1981 are
“essentially the same”).

     The district court found, and the parties do not dispute, that
Harris’ complaint alleged sufficient facts on each of the first two
elements of a retaliation claim. The only remaining point of
contention is whether Harris’ complaint alleged sufficient facts
going to causation to render his claim plausible. We conclude
that it did.

     Harris alleged that he complained to his employer about
racial discrimination, which is protected activity under Title VII,
in January and February of 2011; that his employer knew about
this protected activity by May 2011; and that he was fired in
October 2011. See Compl. ¶¶ 17-19, 26. WASA acknowledges
that, under some circumstances, temporal proximity between an
employer’s knowledge of protected activity and an adverse
personnel action may alone be sufficient to raise an inference of
causation. It maintains, however, that the five-month gap in this
case (from May 2011 to October 2011) was too long to support
such an inference.1

    1
      Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(noting that “the temporal proximity must be very close” if the
                                    6
      We need not decide whether a five-month time lag without
more would be sufficient to render Harris’ claim plausible
because his complaint alleged more. In addition to temporal
proximity, Harris alleged that he “was regularly commended for
his work, and [made] numerous contributions to the
improvement of WASA’s operations, especially with respect to
WASA’s facilities and equipment maintenance.” Compl. ¶ 10.
He also disputed the explanation WASA gave for terminating
him -- “that his position at WASA had been abolished,” id. ¶ 26
-- alleging that the “functions of the position continue[d] to be
performed,” id. ¶ 28, and that he “was given no opportunity by
WASA to apply for any vacant positions for which he might
qualify,” id. ¶ 27.

     If true, these facts would show that Harris’ termination was
not attributable to either of the “‘two most common legitimate
reasons’” for termination: “performance below the employer’s
legitimate expectations or the elimination of the plaintiff’s
position altogether.” George v. Leavitt, 407 F.3d 405, 412 (D.C.
Cir. 2005) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C.
Cir. 2002)). Such a showing is sufficient to satisfy a plaintiff’s
burden of establishing a prima facie case at the summary
judgment stage, id.; cf. Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 358 n.44 (1977) (explaining that eliminating the
analogous common reasons for refusing to hire an applicant “is
sufficient, absent other explanation, to create an inference that


plaintiff relies on temporal proximity alone); Hamilton v. Geithner,
666 F.3d 1344, 1357-58 (D.C. Cir. 2012) (recognizing that, in
Breeden, the Supreme Court “cited circuit decisions suggesting that in
some instances a three-month period between the protected activity
and the adverse employment action may, standing alone, be too
lengthy to raise an inference of causation,” but stating that “neither the
Supreme Court nor this court has established a bright-line three-month
rule”).
                                 7
the decision was a discriminatory one”), and therefore is
certainly enough to survive a motion to dismiss, cf. Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002).

     But more than that, Harris’ complaint alleged facts that, if
shown, may be enough to make out not only a prima facie case
of retaliation, but also a case sufficient to survive summary
judgment outright. At oral argument, WASA’s counsel candidly
acknowledged that, if Harris’ factual allegations were given
credence, WASA’s proffered justification for terminating Harris
“sounds like pretext.” Oral Arg. Recording at 23:19-51. It
sounds like that to us as well. See Murray v. Gilmore, 406 F.3d
708, 714 (D.C. Cir. 2005) (holding that a jury could infer that
the elimination of the plaintiff’s position was pretextual when
the functions of the plaintiff’s job were reassigned to a new
position that was the “functional[] equivalent” of the plaintiff’s).
And as this court has repeatedly held, “‘[u]sually, proffering
evidence from which a jury could find that [the employer’s]
stated reasons . . . were pretextual . . . will be enough to get a
plaintiff’s claim to a jury.’” Calhoun v. Johnson, 632 F.3d
1259, 1261 (D.C. Cir. 2011) (quoting George, 407 F.3d at 413
(internal quotation marks omitted)); see Aka v. Wash. Hosp.
Ctr., 156 F.3d 1284, 1292 (D.C. Cir. 1998) (en banc).

     In short, because Harris’ complaint alleged facts that, if
shown, would be at least sufficient to state a prime facie case of
retaliation -- and perhaps enough to survive summary judgment
-- it necessarily alleged facts sufficient to render his claim
plausible at the motion to dismiss stage.

     At oral argument, WASA advanced another argument,
suggesting that Harris had pled himself out of court by alleging
facts related to his medical leave. Oral Arg. Recording at 17:55-
18:12, 20:30-21:30; see Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1116 (D.C. Cir. 2003) (explaining that a plaintiff can
                                 8
plead himself out of court if he “alleg[es] facts that render
success on the merits impossible”). According to WASA,
Harris’ need for medical leave was an intervening act that broke
any chain of causation between his protected activity and his
termination. Under this theory, it was Harris’ medical leave,
rather than his opposition to racial discrimination, that was the
true cause of his termination.

    It is possible, of course, that during discovery WASA will
produce evidence showing that the real reason it terminated
Harris was that he took medical leave. Such evidence might be
enough to rebut Harris’ retaliation claim. (Needless to say, it
would simultaneously strengthen Harris’ D.C. Family and
Medical Leave Act claim.2) Indeed, it is also possible that
discovery will show that the true reason for Harris’ termination
was what WASA said it was at the time: that his position had
been abolished. By the same token, however, discovery may
provide Harris with direct evidence of what he alleged in his
complaint: that he was terminated in retaliation for complaining
about racial discrimination.

     But our role is not to speculate about which factual
allegations are likely to be proved after discovery. See
Twombly, 550 U.S. at 556. The only question before us is
whether Harris alleged facts that, taken as true, render his claim
of retaliation plausible. See id. Having alleged a five-month
gap between WASA’s knowledge of his discrimination
complaint and his termination, supplemented by facts that rebut
“‘the two most common legitimate reasons’” for termination and


    2
      See D.C. CODE §§ 32-503, -507; see also D.C. MUN. REGS. tit.
4, § 1621.1 (prohibiting an employer from “us[ing] the fact that an
employee has requested . . . or taken a period of family or medical
leave under this chapter as a negative factor in employment actions,
such as . . . terminations”).
                               9
also give rise to a reasonable inference of pretext, George, 407
F.3d at 412 (quoting Stella, 284 F.3d at 145), Harris met that
burden.

                              III

     For the foregoing reasons, we reverse the district court’s
dismissal of Harris’ Title VII and § 1981 claims. And because
the court’s dismissal of Harris’ District of Columbia law claims
was premised on the dismissal of those federal claims, see
Harris, 922 F. Supp. 2d at 36 (citing 28 U.S.C. § 1367(c)(3)),
we reverse that dismissal as well.

                                                    So ordered.
