UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

NICOLE URQUHART-BRADLEY, )
Plaintiff,
V. Case No. 1:18-cv-2213-RCL
CUSHMAN & WAKEFIELD, INC.,
Defendant.
- )
MEMORANDUM OPINION

 

In September of 2018, plaintiff Nicole Urquhart-Bradley brought this lawsuit against
defendant Cushman & Wakefield, Inc. (“C&W”), alleging various counts of race and gender
discrimination under 42 U.S.C. § 1981 and the District of Columbia Human Rights Act
(“DCHRA”). ECF No. 1. In January of 2019, Ms. Urquhart-Bradley filed an Amended
Complaint which added supplementary DCHRA claims as well as new claims under Title VII of
the Civil Rights Act of 1964. ECF No. 17. In May of 2020, the Court granted Ms. Urquhart-
Bradley leave to file her Second Amended Complaint, which includes new allegations of
retaliation in Counts VI, VII, and VIII. ECF No. 66. C&W has filed a motion to dismiss these
three counts for failure to state a claim. ECF No. 67. Upon consideration of that motion, the

opposition (ECF No. 71), and the reply (ECF No. 74), the Court will DENY the motion.

BACKGROUND
Ms. Urquhart-Bradley is an African American female who worked at C&W from 2003
until her termination in January of 2018. ECF No. 66 at {J 22-23. She believes that her

termination was the result of race and gender discrimination. See generally id. At issue in this
Memorandum Opinion are Counts VI, VII, and VIII, which allege that C&W retaliated against
Ms. Urquhart-Bradley in violation of 42 U.S.C. § 1981, the DCHRA, and Title VII. Jd. at 9115-
32. Specifically, she alleges that after C&W learned of her protected activity (i.e. her plans to
bring race and gender discrimination claims against C&W), it prevented her from obtaining a
new job with a non-competitor of C&W. Id. at J 19-20. C&W argues that Ms. Urquhart-Bradley
has not alleged facts sufficient to meet the legal standard for retaliation, and thus the Court must

dismiss Counts VI, VII, and VII under Federal Rule of Civil Procedure (“Rule”) 12(b)(6).

LEGAL STANDARD

Rule 12(b)(6) requires courts to dismiss any case wherein the plaintiff has failed to state a
legal claim upon which relief can be granted. To survive a motion to dismiss for failure to state a
claim, the 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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When deciding a motion to dismiss under
Rule 12(b)(6), courts must construe the pleadings broadly and assume that the facts are as
plaintiff alleges; however, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Jd. at 678. Additionally, courts are not obligated
to “accept as true a legal conclusion couched as a factual allegation.” Papsan v. Allain, 478 U.S.
265, 286 (1986). Essentially, the complaint must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft,
556 U.S. at 678. It is important to remember that “[a] motion to dismiss for failure to state a
claim upon which relief can be granted tests not whether the plaintiff will prevail on the merits
but instead whether or not [s]he has properly stated a claim.” Kilpatrick v. Riley, 98 F. Supp. 2d

9, 13 (D.C. Cir. 2000).
ANALYSIS

Because the Court must make all reasonable inferences in Ms. Urquhart-Bradley’s favor
at the pleading stage, the Court cannot grant C&W’s motion. A prima facie case of retaliation
requires that the plaintiff set forth facts which, if true, demonstrate that: (1) she engaged in a
protected activity; (2) the employer took adverse employment action against her; and (3) a causal
connection existed between the two. See Walker v. Johnson, 798 F.3d 1085, 1091-92 (D.C. Cir.
2015). C&W challenges whether she has established the first two elements. At the pleading
stage, however, Ms. Urquhart-Bradley is not required to plead every fact necessary to establish a
prima facie case. See Jones v. Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C. Cir. 2011)
(explaining 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’’); Johnson v. Mao, 174
F. Supp. 3d 500, 510 n.8 (D.D.C. 2016) (noting that a plaintiff need not make out a prima facie
case of discrimination at the pleading stage). Rather, the Court must examine her Second
Amended Complaint and determine whether—when all reasonable inferences are drawn in her
favor—there are sufficient facts to make out a legally cognizable retaliation claim. For the
reasons set forth below, the Court finds that under a liberal reading of the Second Amended
Complaint, Ms. Urquhart-Bradley has sufficiently alleged that she engaged in protected activity
and that C&W took an adverse action against her. Therefore, the Court cannot dismiss Counts

VI, VII and VIII for failure to state a claim.

I. THE SECOND AMENDED COMPLAINT SUFFICIENTLY ALLEGES THAT MS.
URQUHART-BRADLEY ENGAGED IN PROTECTED ACTIVITY.

C&W begins by challenging whether the Second Amended Complaint adequately alleges

that she engaged in protected activity. The only part of the Second Amended Complaint which
truly addresses the first element of retaliation is Paragraph 19, which reads: “Stunned by her
abrupt and baseless termination, Ms. Urquhart-Bradley retained counsel, through whom she
notified [C&W] of her claims on or about January 21, 2018.” ECF No. 66 at 7 19. Although this
allegation technically does not state how her attorney described those claims to C&W (i.e., did
her attorney tell C&W that the claims were based on alleged race and/or gender discrimination’),
it is reasonable to infer that Paragraph 19 is referring to claims of race and/or gender
discrimination. This is especially true in light of the fact that Paragraph 19 directly links these
claims to her “abrupt and baseless termination.” The Court is hard-pressed to think of any other
claims that Paragraph 19 might be referring to other than those brought for her allegedly
wrongful termination, which are clearly protected.

In arguing that this statement is insufficient to establish the first element of retaliation,
C&W cites the D.C. Circuit’s holding in Robbins v. District of Columbia that the threat of legal
action “divorced from any allegation of unlawful discrimination on a statutorily prohibited
ground” is not protected activity. 650 F. App’x 37, 40 (D.C. Cir. 2016). Robbins, however, was
decided at the summary judgment stage, not the motion to dismiss stage. This distinction is
critical. Once this case proceeds to the summary judgment stage, Ms. Urquhart-Bradley will
undoubtedly need to provide more detail about what exactly her attorney told C&W and whether
this sufficiently put C&W on notice that she was engaging in protected activity. At the motion to
dismiss stage, however, the Court must read the Second Amended Complaint liberally and make
all reasonable inferences in Ms. Urquhart-Bradley’s favor. Therefore, although it would not be
reasonable at the summary judgment stage to assume that the wording in Paragraph 19 refers to
legal claims based on statutorily prohibited discrimination, such an inference is reasonable at the

pleading stage. In light of this more lenient standard, the Court finds that Ms. Urquhart-Bradley
has alleged facts sufficient to show that C&W was aware that she was engaging in protected

activity.

Il. THE SECOND AMENDED COMPLAINT SUFFICIENTLY ALLEGES THAT C&W
TOOK AN ADVERSE ACTION AGAINST MS. URQUHART-BRADLEY.

C&W also challenges whether the Second Amended Complaint adequately alleges that it
took any adverse action against Ms. Urquhart-Bradley. As this Court has previously held, a
negative job reference constitutes an adverse employment action when the plaintiff is able to
show: (1) that disparaging comments were made; (2) the person to whom the comments were
made; and (3) that the plaintiff was denied employment because of the negative reference.
Simmons v. Cox, 495 F. Supp. 2d 57, 66 (D.D.C. 2007) (Lamberth, J.). C&W only challenges the
first and third elements of this standard. See ECF No. 67-1 at 5. In response, Ms. Urquhart-
Bradley points to the following statements in her Second Amended Complaint:

e “Upon information and belief. ..C&W went out of its way to undermine Ms. Urquhart-
Bradley’s employment opportunities. In one instance, a negative reference from CEO of
Asia Pacific Matthew Bouw (who, notably, had never supervised or worked closely with
Ms. Urquhart-Bradley) was sufficient to torpedo Plaintiff's candidacy for a lucrative
position with a non-competitor which had only months earlier tried to recruit her.” ECF
No. 66 at J 20.

e “The recruiter promptly reached out to Plaintiff to revisit her candidacy for . . . a lucrative
executive position at a firm that was not a competitor to C&W.” Jd at J 74.

e “On March 13, 2018, however, a colleague of the recruiter reached out to Matthew
Bouw, the former Global Head of Human Resources for Defendant, who had recently
been appointed C& W’s CEO of Asia Pacific.” Id. at J 76.

e “While CEO Bouw declined to provide a written statement about Ms. Urquhart-Bradley,
he immediately offered to speak with the recruiter by phone.” Jd. at 78.

e “Asaresult of CEO Bouw’s statements about Plaintiff, her promising candidacy for the
lucrative position was placed on hold and never revived.” Jd. at 79.

e “Plaintiff's promising candidacy for the position in question was put on hold as a result
of statements made to the recruiter by C& W’s CEO of Asia Pacific, Matthew Bouw.
Plaintiff's candidacy was never revived, and the position subsequently went to another
candidate.” Jd. at J 32.
e “Defendant C&W has retaliated against Ms. Urquhart-Bradley in violation of [the
applicable statute], going out of its way to undermine Ms. Urquhart-Bradley’s
employment opportunities as a result of her protected activities.” Jd. at J] 116, 112, 128.

When viewed in conjunction with one another, these statements allege that C&W took an
adverse action against Ms. Urquhart-Bradley. Although the Second Amended Complaint does
not set forth the exact statements that CEO Bouw allegedly made to the recruiter, it is reasonable
to infer that the statements were disparaging. After all, when assuming that the allegations listed
above are true—which the Court must do at this stage—it was only after CEO Bouw spoke with
the recruiter that the job opportunity vanished. It is thus reasonable to assume that the comments
he made were negative.

Once again, the cases that C&W cites in arguing that Ms. Urquhart-Bradley’s allegations are
insufficient were decided at the summary judgment stage, not the motion to dismiss stage—and
once again, this distinction is critical. For example, in Mitchell v. Mercedes Benz US. Int’l, Inc.,
the Eleventh Circuit determined that the plaintiff's retaliation claim failed because he provided
“no basis for the court to determine [that the defendant] provided a negative reference . . . , much
less the contents of or intent behind any such reference.” 637 F. App’x 535, 539 (11th Cir. 2015).
Direct proof of a negative reference and evidence of its precise contents, however, is not
necessary until the summary judgment stage, which occurs only after the plaintiff has had a full
opportunity for discovery. Once this case reaches summary judgment, Ms. Urquhart-Bradley will
of course need to bring forth evidence regarding the actual contents of CEO Bouw’s statements
to the recruiter. At this time, however, Ms. Urquhart-Bradley has not had the opportunity to take
discovery on this issue, which she will likely need in order to obtain more information about the

specifics of the allegedly negative reference. The Court believes that a liberal reading of her

Second Amended Complaint entitles her to that discovery.
Additionally, the allegations listed above suggest that Ms. Urquhart-Bradley lost the
employment opportunity with the non-competitor specifically because of CEO Bouw’s
statements. Paragraph 32 states, “Plaintiff's promising candidacy for the position in question was
put on hold as a result of statements made to the recruiter by C& W’s CEO of Asia Pacific,
Matthew Bouw.” ECF No. 66 at § 32 (emphasis added). Again, while at the summary judgment
stage it would behoove Ms. Urquhart-Bradley to bring forth more evidence suggesting that she
lost the job opportunity with the non-competitor because of CEO Bouw’s statements, the
allegations she has made are minimally sufficient to survive a motion to dismiss. This means that
she is entitled to take discovery on the factual questions surrounding her retaliation claims. After
reading the Second Amended Complaint liberally and making all reasonable inferences in Ms..
Urquhart-Bradley’s favor, the Court must deny C&W’s motion to dismiss Counts VI, VII, and

VItl.

CONCLUSION
Based on the foregoing, the Court will DENY C&W’s motion to dismiss Counts VI, VII,
and VIII of the Second Amended Complaint (ECF No. 67).

A separate Order accompanies this Memorandum Opinion.

Date: July 462020 once C: Poatelar

Royce C. Lamberth
United States District Court Judge
