                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
DOUGLAS JONES,                  )
                                )
               Plaintiff,       )
                                )
          v.                    )   Civil Action No. 13-814 (EGS)
                                )
OTTENBERG’S BAKERS, INC.,       )
ET AL.                          )
                                )
               Defendants.      )
________________________________)

                       MEMORANDUM OPINION

     Plaintiff Douglas Jones brings this action alleging racial

discrimination in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., against

Ottenberg’s Bakers (“Ottenberg’s”) and its president, Ray

Ottenberg. Plaintiff initially brought this lawsuit in the

Superior Court for the District of Columbia. On May 31, 2013,

the defendants removed the case to this Court pursuant to 28

U.S.C. § 1441. Pending before the Court is defendants’ motion to

dismiss. Upon consideration of the motion, the response and

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

Court GRANTS IN PART AND DENIES IN PART defendants’ motion.

I.   BACKGROUND

     Plaintiff, an African-American male, was employed by

defendants as a delivery driver for twelve years. First Amended
Compl. ¶¶ 4, 7.1 His complaint centers on the events of July 11,

2008, when his parked delivery truck was hit from behind by

another vehicle, throwing him to the floor of the truck and

injuring him. Id. ¶¶ 9-10. After the accident, Mr. Jones

returned to the defendants’ bakery, where he was ordered to take

a drug test pursuant to a company policy which mandates that

employees who were “involved in an accident and may have

caused/contributed to the accident” take a drug test. Id. ¶¶ 11,

12. Mr. Jones alleges that he “did not in any way cause or

contribute to the accident, as his vehicle was legally parked

and he was inside the truck, in the back, preparing for his next

delivery.” Id. ¶ 13. Accordingly, Mr. Jones alleges that

defendants violated their own policy by ordering that he take a

drug test. Id. ¶ 23. Plaintiff was ultimately terminated from

employment for failing to take the drug test. Id. ¶¶ 14, 24.

     Mr. Jones alleges that the defendants’ decisions to

“instruct Plaintiff to take a drug test,” and “terminate

Plaintiff’s employment” for failing to do so, were racially

motivated. Id. ¶¶ 28-30. He also alleges that “Caucasian drivers

who had been involved in accidents” were treated differently.

Id. ¶ 15; see also id. ¶ 19.



1
  Citations to “First Amended Compl.” refer to plaintiff’s
amended complaint. Dkt. No. 1-1 at 3-9. Citations to “Compl.”
refer to plaintiff’s initial complaint. Dkt. No. 1-1 at 102-07.
                                2
     On July 22, 2008, Mr. Jones filed a formal complaint of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”), alleging that Ottenberg’s discriminated against him

based on his race, national origin, and age, and that

Ottenberg’s retaliated against him for engaging in protected

activity. Pl.’s EEOC Compl., Dkt. No. 1-1 at 45. Plaintiff

supplemented his EEOC complaint on September 4, 2008. See Pl.’s

Amended EEOC Compl., Dkt. No. 1-1 at 48-60.

     The EEOC referred Mr. Jones’s complaint to the District of

Columbia Office of Human Rights. On August 8, 2012, that office

found no probable cause to support plaintiff’s claims. See

Letter of Determination, Dkt. No. 1-1 at 77. The EEOC adopted

that determination on November 26, 2012 and issued a Dismissal

and Notice of Rights, which informed Mr. Jones of the relevant

deadlines for filing a civil action:

     You may file a lawsuit against the respondent(s) under
     federal law based on this charge in federal or state court.
     Your lawsuit must be filed WITHIN 90 DAYS of your receipt
     of this notice; or your right to sue based on this charge
     will be lost.

EEOC Notice, Dkt. No. 1-1 at 27 (emphasis in original).

     The record does not reflect when Mr. Jones received the

Notice, but on January 17, 2013, 52 days after the EEOC issued

it, he filed this lawsuit in the Superior Court for the District

of Columbia, asserting that defendants terminated him because of

his race in violation of the District of Columbia Human Rights

                                3
Act. Compl. ¶¶ 1, 17-32. Defendants moved to dismiss that

complaint on March 29, 2013. Defs.’ Mot. to Dismiss Initial

Compl., Dkt. No. 1-1 at 30-33. In opposing that motion,

plaintiff argued that the complaint pled “a cause of action

under Title VII” but that “Plaintiff’s counsel only cited to the

D.C. Human Rights Act.” Pl.’s Opp. to Defs.’ Mot. to Dismiss

Initial Compl., Dkt. No. 1-1, at 18. The Superior Court

permitted plaintiff to amend his complaint. Order, Dkt. No. 1-1

at 11-12.

      On May 9, 2013, 164 days after the EEOC issued its Notice,

plaintiff filed his First Amended Complaint, which is identical

to his initial complaint, except that all references to the D.C.

Human Rights Act were replaced with references to Title VII.

Compare Compl., with First Amended Compl. On May 31, 2013,

defendants removed the case to this Court pursuant to 28 U.S.C.

§ 1441. Defendants moved to dismiss on June 6, 2013. That motion

is ripe for the Court’s decision.

II.   STANDARD OF REVIEW

      A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

                                 4
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quotation marks omitted; alteration in original).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.” Id.

     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).2

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the 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


2
  In their briefs, the parties refer to four documents that were
neither attached to nor referenced in the plaintiff’s complaint,
but were transmitted to this Court as part of the Superior Court
record. See Defs.’ Mem. in Supp. of Mot. to Dismiss First
Amended Compl. (“Mem.”), Dkt. No. 4-1 at 1-4; Pl.’s Opp. to Mot.
to Dismiss First Amended Compl. (“Opp.”), Dkt. No. 5 at 2-3.
Defendants ask the Court to consider these documents without
converting the motion into one for summary judgment. See Mem. at
2 n.2. The Court will consider plaintiff’s EEOC Complaint,
plaintiff’s Amended EEOC Complaint, the August 8, 2012 Letter of
Determination, and the November 26, 2012 EEOC Notice in
evaluating the timeliness of plaintiff’s claims, which it may do
without converting the motion into one for summary judgment.
See, e.g., Burkes v. Holder, __ F. Supp. 2d __, 2013 WL 3685016,
at *3 n.3 (D.D.C. July 15, 2013); Ward v. D.C. Dep’t of Youth
Rehab. Servs., 768 F. Supp. 2d 117, 119 & n.2 (D.D.C. 2011). The
Court declines to consider these documents in evaluating
defendants’ other arguments.
                                5
must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.” Id. “Nor must the court

accept legal conclusions cast in the form of factual

allegations.” Id. “[O]nly a complaint that states a plausible

claim for relief survives a motion to dismiss.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

III. ANALYSIS

     Defendants raise three arguments in their motion to

dismiss: (1) that plaintiff’s Title VII claim was not timely

filed, (2) that plaintiff fails to state a claim against Ray

Ottenberg, and (3) that plaintiff fails to state a Title VII

discrimination claim.3 The Court addresses each argument in turn.

     A.   Plaintiff’s Complaint Was Timely Filed.

     Upon receiving the November 26, 2012 EEOC Notice, plaintiff

had 90 days within which to file a civil action to challenge the

EEOC decision. See 42 U.S.C. § 2000e-5(f)(1) (employees must

file a civil action “within 90 days after the giving of such

notice [of final action]”). When, as here, the record does not

reflect when the notice was received, courts generally assume

3
  Defendants state in a footnote that “[t]here is also an issue
of defective service of process in this case. Although the
process server’s affidavit states that he served the original
summons and complaint on Ray Ottenberg on February 6, 2013, Mr.
Ottenberg was not personally served.” Mem. at 3 n.3. Because
defendants provide no citation or support for this argument, the
Court declines to consider it. See Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (“We need not
consider cursory arguments made only in a footnote.”).
                                   6
that it was received either three or five business days after it

was issued. See Ruiz v. Vilsack, 763 F. Supp. 2d 168, 171

(D.D.C. 2011). It is irrelevant which presumption the Court

applies here. Plaintiff’s initial complaint was filed well

within the deadline on January 17, 2013. Plaintiff’s amended

complaint, which raised his Title VII claim for the first time,

was filed well outside the deadline on May 9, 2013. Accordingly,

if plaintiff’s claim is measured with respect to the initial

complaint, it is timely; if not, it is untimely.

     Plaintiff argues that his Title VII claim relates back to

the date on which the initial complaint was filed because the

amended complaint alleged identical facts and merely “add[ed]

the appropriate citations to Title VII.” Opp. at 6. Defendants

contend that plaintiff’s amended complaint “inserted a

completely new federal claim, effectively filing a new complaint

under the guise of an amendment.” Defs.’ Reply (“Reply”), Dkt.

No. 6 at 1. The Court agrees with the plaintiff.

     Under Federal Rule of Civil Procedure 15(c), an amended

pleading “relates back to the date of the original pleading when

. . . the amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out—or attempted to

be set out—in the original pleading.” In this Circuit, claims

added to amended complaints are not permitted to relate back to

initial complaints if such claims “attempt[] to introduce a new

                                7
legal theory based on facts different from those underlying the

timely claims.” United States v. Hicks, 283 F.3d 380, 388 (D.C.

Cir. 2002); see also Caudle v. Thomason, 942 F. Supp. 635, 641-

42 (D.D.C. 1996) (rejecting relation back of amended complaint

seeking damages for slander, when the original complaint sought

damages only for libel and made no reference to slanderous

remarks by an individual implicated in the amended complaint).

     Where an amended complaint is logically related to, and

seeks recovery for, the same acts alleged in the initial

complaint, however, this Court permits the later complaint to

relate back to the earlier. See, e.g., Palmer v. Homecomings

Fin. LLC, 677 F. Supp. 2d 233, 240 (D.D.C. 2010) (claim that

lender discriminated against plaintiff during loan refinancing

related back to earlier claims that lender otherwise mistreated

plaintiff in connection with the refinancing because plaintiff

“essentially ascribed a different motive to the same set of

facts”); Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner,

949 F. Supp. 13, 16-18 (D.D.C. 1996) (employee’s poorly drafted

amended complaint related back to earlier timely filed complaint

because it sought recovery for the same alleged acts of

employment discrimination set forth in the earlier complaint).

Ultimately, “[t]he underlying question is whether the original

complaint adequately notified the defendants of the basis for



                                8
liability the plaintiff[] would later advance.” Meijer, Inc. v.

Biovail Corp., 533 F.3d 857, 866 (D.C. Cir. 2008).

     Plaintiff’s claim that his employer’s decision to fire him

for refusing to take a drug test violated Title VII is all but

identical to his initial claim that the same decision violated

the D.C. Human Rights Act. Both are based on identical factual

allegations: that plaintiff was fired for refusing to take a

drug test after an accident for which he was not at fault and

that Caucasian drivers involved in accidents were treated

differently. See Compl. ¶¶ 1-16; First Amended Compl. ¶¶ 1-16.

Both claims allege the same legal wrong: that these decisions

were racially discriminatory. See Compl. ¶¶ 17-32; First Amended

Compl. ¶¶ 17-32. At a minimum, the initial complaint “notified

the defendants of the basis for liability” raised in plaintiff’s

amended complaint. Meijer, 533 F.3d at 866. Compare Jones v.

Bernanke, 557 F.3d 670, 675 (D.C. Cir. 2009) (declining relation

back where the “original complaint nowhere even mention[ed] . .

. the factual basis for [plaintiff’s] discrimination claims”).

     Defendants argue that plaintiff “effectively fil[ed] a new

complaint under the guise of an amendment,” Reply at 1, but this

argument relies on cases wherein courts declined to relate an

amended complaint back to the date on which an entirely

different lawsuit was filed. See Neverson v. Bissonnette, 261

F.3d 120, 126 (1st Cir. 2001); Stewart-Veal v. District of

                                9
Columbia, 896 A.2d 232, 237 (D.C. 2006). Contrary to defendants’

argument, plaintiff may substitute one legal argument for

another within the same lawsuit. “The fact that an amendment

changes the legal theory on which the action initially was

brought is of no consequence if the factual situation . . .

remains the same.” Charles Allen Wright, et al., Federal

Practice & Procedure § 1497 (3d ed. 2013); see also Mayle v.

Felix, 545 U.S. 644, 660 (2005) (relation back is appropriate

where new legal theory addresses the same “episode-in-suit”).

Plaintiff’s Title VII claim reflects the application of a nearly

identical legal theory to identical facts, and thus relates back

to January 17, 2013, the date on which the initial complaint was

filed. Accordingly, plaintiff’s Title VII claims were timely

filed and defendants’ request to dismiss plaintiff’s complaint

as time-barred is denied.

B.   Plaintiff Fails to State a Claim Against Ray Ottenberg.

     In addition to Ottenberg’s, Mr. Jones has also sued Ray

Ottenberg. Mr. Ottenberg is mentioned in the complaint only

once, in paragraph 6, which alleges that he “at all times

relevant hereto is [sic] the president of Defendant Ottenberg’s

and acted as an agent of the employer” and asserts that he “is

sued both in his official capacity and personally for any

actions taken outside of the scope of his agency.” First Amended

Compl. ¶ 6. Defendants argue that plaintiff’s claims against Mr.

                               10
Ottenberg should be dismissed because the official-capacity

claim is duplicative of the claim against Ottenberg’s, and

plaintiff alleged no facts to support the individual-capacity

claim. See Mem. at 8; Reply at 4-5. The Court agrees.

     Plaintiff correctly concedes that “Title VII claims brought

against corporate officers in their ‘official capacity’ are

dismissed as redundant.” Opp. at 8. Indeed, Mr. Ottenberg “must

be viewed as being sued in his capacity as the agent of the

employer, who is alone liable for a violation of Title VII.”

Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995). Thus, a Title

VII claim against Mr. Ottenberg “essentially merges with [a]

claim against [the employer].” Id.; see also Cooke-Seals v.

District of Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997)

(“[b]ecause an official capacity suit against an individual is

the functional equivalent of a suit against the employer,

plaintiff’s claims against the officers are redundant and an

inefficient use of judicial resources”).

     Plaintiff’s claim against Mr. Ottenberg as an individual

also must be dismissed because plaintiff did not allege any

facts to support it. The amended complaint describes Mr.

Ottenberg only as “an agent of the employer.” First Amended

Compl. ¶ 6. But “Title VII does not impose individual liability

on supervisory employees.” Gary, 59 F.3d at 1400; see also Craig

v. District of Columbia, 881 F. Supp. 2d 26, 36 (D.D.C. 2012)

                               11
(“Individuals may not be held liable under Title VII”). Mr.

Jones argues that “[w]ithout the benefit of Discovery, the

Plaintiff cannot say that Mr. Ottenberg, as an individual, does

not meet the definition of ‘employer’ under [Title VII].” Opp.

at 8. This speculation, however, is belied by the assertion in

plaintiff’s complaint that, “at all times relevant hereto,” Mr.

Ottenberg served “as an agent of the employer.” First Amended

Compl. ¶ 4. If Mr. Jones wished to sue Mr. Ottenberg as an

“employer,” he should have pled as much in his complaint. For

these reasons, plaintiff’s claims against Ray Ottenberg are

dismissed.

C.   Plaintiff States a Claim Against Ottenberg’s Bakery.

     To bring an actionable discrimination claim under Title

VII, Mr. Jones 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

discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.

2002) (quotation marks omitted); see also Nguyen v. Mabus, 895

F. Supp. 2d 158, 174 (D.D.C. 2012). 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

                               12
plaintiff must nevertheless “plead sufficient facts to show a

plausible entitlement to relief.” Id.

     It is undisputed that plaintiff’s complaint alleges the

first two elements of a prima facie case by asserting that he

“is an African American,” and that he was “terminated . . .

[from employment] for failure to submit to a drug test.” First

Amended Compl. ¶¶ 4, 14. Defendants contend that Mr. Jones has

not alleged facts that give rise to an inference of

discrimination and has instead stated only legal conclusions.

See Mem. at 7; Reply at 3-4. Plaintiff argues that his complaint

sets forth sufficient facts by alleging that he “was ordered to

take a drug test, after being injured in an accident which he

did not cause or contribute to, in contravention of the

Defendant’s own policies, where similarly situated Caucasian

drivers were not.” Opp. at 6. The Court agrees with the

plaintiff.

     Plaintiff’s complaint, though sometimes barebones,

describes the events leading to his termination with sufficient

factual particularity. It alleges, and the Court must accept as

true, that Ottenberg’s drug-test policy applies only when an

employee “may have caused/contributed to the accident.” First

Amended Compl. ¶ 12. Plaintiff asserts that Ottenberg’s deviated

from this policy by requiring him to take a drug test when he

could not have been at fault in the July 11, 2008 accident. Id.

                               13
¶¶ 11-13, 23. Mr. Jones further alleges that this deviation from

standard procedure was motivated by race, id. ¶¶ 28-30, and that

“Caucasian drivers who had been involved in accidents” were

treated differently. Id. ¶¶ 15, 19. If proven, these allegations

could support an inference of discrimination. Indeed,

“deviations from standard procedures” may even “give rise to an

inference of pretext” at the summary-judgment stage. Harrington

v. Aggregate Indus. N.E. Region, 668 F.3d 25, 33 (1st Cir.

2012); see also Hurlbert v. St. Mary’s Health Care Sys., 439

F.3d 1286, 1299 (11th Cir. 2006) (“an employer’s deviation from

its own standard procedures may serve as evidence of pretext”).

Similarly, an allegedly racially motivated deviation from

standard procedure may raise an inference of discrimination at

the motion-to-dismiss stage.

     At this stage of the proceedings, plaintiff need only

allege facts sufficient to state “a plausible claim for relief.”

Iqbal, 556 U.S. at 679. Plaintiff provided sufficient factual

detail by alleging that Ottenberg’s deviated from its policy by

requiring him to take a drug test and terminating him for

failing to do so, that this deviation was motivated by Mr.

Jones’s race, and that Caucasian drivers involved in accidents

were treated differently. Accordingly, defendants’ motion to

dismiss plaintiff’s claim against Ottenberg’s is denied.



                               14
IV.   CONCLUSION

      For the foregoing reasons, defendants’ Motion to Dismiss

plaintiff’s complaint is hereby GRANTED IN PART AND DENIED IN

PART. An appropriate Order accompanies this Memorandum Opinion.

      SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           November 21, 2013




                                15
