                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                             )
SAMUEL C. WILLIAMS, IV,                      )
                                             )
              Plaintiff,                     )
                                             )
      v.                                     )      Civil Action No. 14-cv-1900 (TSC)
                                             )
                                             )
SMITHSONIAN INSTITUTION,                     )
                                             )
              Defendant.                     )
                                             )



                                MEMORANDUM OPINION

       Before the court is Defendant’s Partial Motion to Dismiss (ECF No. 6), and Plaintiff’s

Motion for Leave to File an Amended Complaint (ECF No. 10). For the reasons set forth below,

the court will grant Plaintiff’s motion and grant Defendant’s motion, in part. The court considers

the facts alleged in the Amended Complaint in ruling on Defendant’s motion.


                                  STATEMENT OF FACTS

       Plaintiff Samuel C. Williams is African-American. He was formerly employed by

Defendant, the Smithsonian Institution, as a Management and Program Analyst in the Systems

Engineering Section of the Office of Facilities Management & Reliability (OFMR). When

Plaintiff applied for the position, Smithsonian employee Enos Scragg required that Plaintiff take

“two pre-employment tests, an Excel test and writing sample.” (Amend. Compl. ¶¶ 10, 12). The

vacancy announcement for the position did not indicate that any pre-employment tests were

required. (Id. ¶¶ 13–14).

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         Once Plaintiff was hired, Scragg became his supervisor. Around the time he was hired,

Plaintiff requested a copy of his test results, but Katherine Simenton, an employee in the

Personnel Unit of the Business Operations Division of the OFMR, informed Plaintiff “that there

were no tests required for his position.” (Amend. Compl. ¶¶ 15–17; Defs. Ex. A, Simenton Aff.

¶ A2).

         Later, while participating on an interview panel, Plaintiff observed Scragg ask a

candidate if “he submitted a required test.” (Amend. Compl. ¶¶ 18–19). The candidate

“responded that since the test was not required per the vacancy announcement he was not going

to submit the test.” (Id. ¶ 20). After the interview “Scragg told the panel to remove the

candidate’s name from the selection pool.” (Id. ¶ 21). Eventually, the position went to Tamia

Rush, who told Plaintiff that she submitted only a writing sample. (Id. ¶¶ 22–24).

         In late June, Scragg held Plaintiff responsible for a computer system error, even after the

software builder determined that the error occurred outside of Plaintiff’s control. (Id. ¶¶ 28–40).

On or around June 27, 2013, Plaintiff complained to Simenton that Scragg had denied Plaintiff’s

requests for training. (Id. ¶ 25). Plaintiff also told Simenton about the computer system issue

and complained that “Scragg was treating Plaintiff differently than his non-African-American

coworkers.” (Id. ¶¶ 26–27).

         Plaintiff complained to Simenton again on July 9, 2013. (Id. ¶ 41.) Specifically, Plaintiff

complained “that the disparity in job requirements was discriminatory based on Plaintiff’s race.”

(Id. ¶ 41). Simenton responded that Scragg had been warned about using pre-employment tests

because the practice was “outside OPM guidelines.” (Id. ¶ 42). According to Plaintiff, Simenton

told Scragg about Plaintiff’s complaint and Scragg later called Plaintiff a “troublemaker.” (Id. ¶


                                             Page 2 of 8
43). Approximately two weeks later, on or around July 23, 2013, Scragg terminated Plaintiff

from his position. (Id. ¶ 44; Defs. Ex. A, Simenton Aff. ¶ A10). Plaintiff subsequently

contacted an EEO counselor.

       Plaintiff brings suit pursuant to Title VII, 42 U.S.C. § 2000e, et seq. He alleges that the

Smithsonian discriminated and retaliated against him, based on race, when it denied him training

opportunities and terminated him. 1



                                  III. STANDARD OF REVIEW

       A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “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) (internal quotation marks and

citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted).

Moreover, a pleading must offer more than “labels and conclusions” or a “formulaic recitation of

the elements of a cause of action.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has

stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See,




1
   In the section of Plaintiff’s Amended Complaint entitled “Count II Retaliation,” he asserts that
he complained to the Smithsonian about alleged racial and gender discrimination. (Amend.
Compl. ¶ 70) (emphasis added). Although not outcome determinative with respect to the
motions presently at issue, the court notes that it is unable to find any factual allegations in the
Complaint regarding gender discrimination.
                                             Page 3 of 8
e.g., Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56,

61 (D.D.C. 2013).


                                          III. ANALYSIS

       The court notes that Plaintiff’s Amended Complaint is remarkably short on information

that would normally be considered relevant in a racial discrimination claim. For example,

Plaintiff alleges that his supervisor Scragg (whose race is unspecified), discriminated against

Plaintiff by, among other things, requiring him to take a pre-employment test. See Washington v.

Chao, 577 F. Supp. 2d 27, 42 (D.D.C. 2008) (“Although far from dispositive, the fact that [the

selecting official] and Plaintiff are members of the same protected class is also a fact that

“weighs against any inference of discrimination.’”) (citing Hammond v. Chao, 383 F. Supp. 2d

47, 58 n. 2 (D.D.C. 2005), aff’d, 2006 U.S. App. LEXIS 13290 (D.C. Cir. May 22, 2006)).

Plaintiff alleges that another prospective employee refused to take the test and was not

considered for employment, but does not specify the prospective employee’s race. Plaintiff also

alleges that yet another employee was hired without having to take the test but, similarly, does

not give that employee’s race. Information regarding these individuals’ race would be relevant

to Plaintiff’s claim, and the court assumes that Plaintiff possesses that information, but declines

to present it. Nonetheless, the Smithsonian has not based its challenge to Plaintiff’s claims on

this lack of information and, therefore, at this stage of the litigation, the court will consider only

the arguments raised by the Smithsonian in its motion to dismiss.

       The Smithsonian seeks partial dismissal of Plaintiff’s complaint for two reasons. First,

the Smithsonian argues that Plaintiff failed to exhaust his administrative remedies with respect to



                                             Page 4 of 8
his claim for discrimination in training opportunities. Plaintiff concedes this argument, and

therefore, Plaintiff’s failure to train claim will be dismissed.

       Next, the Smithsonian argues that Plaintiff has not established a prima facie case for

retaliation. To establish a prima facie case for retaliation in violation of Title VII, 42 U.S.C. §

2000e-3(a), a plaintiff must present evidence that: (1) she engaged in activity protected by Title

VII; (2) the employer took a “materially adverse” employment action against her; and (3) the

adverse action was causally related to the exercise of her rights. Porter v. Shah, 606 F.3d 809,

817–18 (D.C. Cir. 2010); Holcomb v. Powell, 433 F.3d 889, 901–02 (D.C. Cir. 2006) (citations

omitted). “Protected activity” includes opposing “any practice made an unlawful employment

practice by” Title VII. 42 U.S.C. § 2000e-3(a); see Crawford v. Metro. Gov’t of Nashville &

Davidson Cnty. Tenn., 555 U.S. 271 (2009).

        The Smithsonian maintains that Plaintiff’s retaliation claim fails because the activity that

allegedly prompted retaliation against him was not “protected activity” within the meaning of the

statute. The Smithsonian alleges that, at the time of the incidents at issue, Simenton was not a

supervisor, but instead was Plaintiff’s co-worker. (Defs. Ex. A, Simenton Aff. ¶ A6). Because

she was not a supervisor or manager, the Smithsonian argues that Plaintiff’s complaints to her

did not constitute “protected activity.” In support of this argument, the Smithsonian cites to

several cases that are factually dissimilar to this case: Sumner v. U.S. Postal Serv., 899 F. 2d

203, 209 (2d Cir. 1990) (plaintiff complained to his supervisor about alleged discrimination and

the court noted that protected activity includes “making complaints to management [and] writing

critical letters to customers”); McKenzie v. Gibson, No. 07 Civ. 6714(WHP), 2010 WL 3528922,

at *8 (S.D.N.Y. Aug. 24, 2010) (plaintiff complained to supervisor about alleged gender


                                             Page 5 of 8
discrimination and the court noted that protected activity includes “making complaints to

management.”); Gleason v. Mesirow Financial, Inc., 118 F. 3d 1134, 1147 (7th Cir. 1997)

(plaintiff complained “generally” about her supervisor’s conduct to management, but “never

reported her allegations of sexual harassment during her term of employment with the

defendant.”)(emphasis in original); Johnson v. Heyman, Civil Action No. 98-1860 DAR, 2000

U.S. DIST. LEXIS 12785 (Aug. 25, 2000)(plaintiff failed to provide legal authority for the

proposition that complaints to co-workers constitute protected activity).

        Neither party states what Simenton’s title was at the time of the incidents in question, but

it appears she was employed in the human resources (“HR”) department. (Am. Compl. ¶¶ 15-16,

46, 48). Plaintiff alleges that “Simenton is a Supervisory Management/Program Analyst” in the

OFMR, which appears to be the same division in which Plaintiff was employed. (See id. ¶¶ 9,

17).   Plaintiff also alleges that Simenton “maintained an office within Plaintiff’s work facility

and had her own assistants and administrators under her direction.” (Id. ¶ 47). Moreover, when

he was hired, Plaintiff was told by his supervisor to go directly to Simenton “for any human

resources-related issues, such as discrepancies in compensation, requests for leave and conflicts

with co-workers and supervisors.” (Id. ¶ 46). And on one occasion, “Simenton notified Plaintiff

she would transmit Plaintiff’s complaints of discrimination to his second-lever supervisor and

other members of management.” (Id. ¶ 49). Finally, Plaintiff alleges that Simenton told Scragg

about Plaintiff’s discrimination complaints. (Id. ¶ 43).

        Given the facts Plaintiff alleges, the court need not reach the issue of whether Simenton

was a “manager” or “supervisor.” The court finds Plaintiff has pleaded sufficient facts to

establish that he engaged in protected activity. The Smithsonian has not pointed to any authority


                                            Page 6 of 8
that required Plaintiff to do anything other than what he had been instructed to do – take his

complaints to Simenton. Moreover, other courts have found that an employee engages in

protected activity when he complains of discrimination to a co-worker who passes the complaint

on to management:

       Case law has clarified that opposition to unlawful employment practices may take
       many forms, including “complaints to management, writing critical letters to
       customers, protesting against discrimination by industry or by society in general,
       and expressing support of co-workers who have filed formal charges.” Sumner v.
       United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990). In essence, a
       plaintiff alleging retaliation must show some form of opposition, which is
       communicated to the employer, followed by adverse action by the employer. . . .
       [T]he opposition to discriminatory practices need not be made directly to managers
       in order to constitute protected activity, a plaintiff's complaints to her co-workers,
       assuming they were communicated to management, would be the type of opposition
       to discrimination that § 2000e–3(a) seeks to protect. Neiderlander v. Am. Video
       Glass Co., 80 Fed. Appx. 256, 259–261 (3d Cir. 2003).

Crosby v. City of Walterboro, SC, 444 F. Supp. 2d 559, 568 (D.S.C. 2006) (emphasis added)

(some citations omitted); see Mondaine v. Am. Drug Stores, Inc., 408 F. Supp. 2d 1169, 1190 (D.

Kan. 2006) (“Plaintiff’s complaints to her co-workers that everyone was prejudiced and that her

supervisors were racist constitute ‘protected activity’ under Title VII and Section 1981 because

those comments were passed on to management.”) (citing Neiderlander v. Am. Video Glass Co.,

80 Fed. Appx. 256, 261 (3d Cir. 2003)); Zowayyed v. Lowen Co., 735 F. Supp. 1497, 1504 (D.

Kan. 1990)). Thus, even if Simenton were a co-worker and not Plaintiff’s supervisor or

manager, Plaintiff’s complaints to her were still sufficient to put the Smithsonian on notice

because Plaintiff alleges that Simenton told him “she would transmit [his] complaints of

discrimination to his second-level supervisor and other members of management.” (Am. Compl.




                                            Page 7 of 8
¶ 49). Therefore, Plaintiff’s complaints to Simenton constituted protected activity, and the

Smithsonian’s motion to dismiss Plaintiff’s retaliation claim will be denied. 2

       The Smithsonian argues that the court should deny Plaintiff’s Motion for Leave to

Amend his complaint because the proposed amendments are futile. The court disagrees and will,

therefore, grant Plaintiff’s motion.

                                       III. CONCLUSION

       For the reasons set forth above, the court will grant Plaintiff’s Motion for Leave to

Amend the complaint. The court will grant the Smithsonian’s motion to dismiss Plaintiff’s

failure to train claim as conceded, and will deny the Smithsonian’s motion to dismiss Plaintiff’s

retaliation claim.




Date: March 31, 2016


                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




2
  Since Plaintiff did not address the issue in his response and the outcome would not change
under either rule , the court does not reach the question of whether to analyze this motion under
the Rule 12(b)(6) standard or, because the Defendant relies on documents outside the pleadings,
whether to analyze the motion under the Rule 56 standard.
                                             Page 8 of 8
