                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

JAMES K. BRYANT,              :
                              :
                Plaintiff,    :
                              :
         v.                   : Civil Action No. 09-cv-1063 (GK)
                              :
                              :
PEPCO,                        :
                Defendant     :

                        MEMORANDUM OPINION

     Plaintiff James K. Bryant, an African American man formerly

employed by Defendant, Potomac Electric Power Company (“Pepco”),

brings suit under Title VII of the Civil Rights Act, 42 U.S.C. §

1981.    Plaintiff’s Second Amended Complaint alleges that he was

discriminated against based on race (Count I); retaliated against

based on race (Count II); subjected to a hostile work environment

based on race (Count III); constructively discharged based on race

(Count IV); and discriminated against based upon mixed motives

including race (Count V).

     The matter is presently before the Court on Defendant’s Motion

to Dismiss Plaintiff’s Second Amended Complaint for Failure to

State a Claim pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. No. 16].

Upon consideration of the Motion, Opposition, Reply, Supplemental

Opposition, and the entire record herein, and for the reasons set

forth below, the Motion to Dismiss is denied as to Counts I and II

and granted as to Counts III-V.
I. BACKGROUND

     From April 1974 to March 2008, Plaintiff James K. Bryant was

employed by Defendant Pepco. Since August 1993, he has worked as a

“Lead Cable Splicer Mechanic.” Second Am. Compl. ¶ 6 [Dkt. No. 14].

On June 1, 2004, Bryant was “upgraded” from “Pay Grade 19” (“PG-

19”) to “Pay Grade 20” (“PG-20”). Id. ¶ 9.         As a PG-20, Bryant was

entitled to two hours of guaranteed overtime pay per day and

increased job responsibilities, including “managing the day to day

operation;   verifying   timesheets    for   his    subordinates   .   .   .

record[ing] their work assignments using ‘Maximo’ software; and,

[being] responsible for assigning work projects to the UGHV Leads

Pay Grade 19.” Id. ¶ 11.

     Following his upgrade to PG-20, Bryant’s relationship with

Pepco changed. In December 2004, Bryant filed a grievance with his

union alleging that Pepco had failed to adequately compensate him

at PG-20 rates. Id. ¶ 7.     Pepco agreed to provide the requested

back pay in April 2005. Id. Bryant then filed a similar grievance

in March 2006. Id.

     In addition, on April 18, 2006 and August 9, 2006, Bryant took

part in informal meetings between African American Leads and Pepco

management. Id. ¶ 8.     At these meetings the Leads “complained of

the disproportionate work assignments between White . . . Leads

whom [sic] were consequently, provided a greater opportunity to

                                 -2-
earn overtime compensation than similarly situated African American

. . . Leads.” Id.     Bryant also alleges that he, along with other

African   American   Leads,      was   unable       to   select       his   “on-call”

assignments and that he specifically complained to Carol Murphy,

his white supervisor, of discriminatory treatment toward African

American Leads. Id. ¶ 19, 24.

     On December 18, 2006--eight months following the first meeting

with African American Leads and four months after the second--

Bryant was informed by Carol Murphy that he had been demoted to PG-

19. Id. ¶ 9.1 The Second Amended Complaint alleges that Murphy was

the “ultimate decision maker” regarding Bryant’s employment at

Pepco. Id. ¶ 12.      Following the demotion, Bryant’s duties were

assigned to a white Lead, Loman Dudley. Id. ¶ 10.

     After    Plaintiff’s    demotion        from    PG-20       to   PG-19--and   he

alleges, as    a   result   of   it--he      developed       a    severe    emotional

disorder. Id. ¶ 13. Under the advice of his clinical psychologist,

Dr. Rose, Bryant requested that he be allowed to return to Pepco

following completion of his sick leave and be reassigned to a new

department with new supervisors.             Id.    Bryant alleges that he is

1
  Because Plaintiff attached Exhibits 1-4, which are expressly
referred to in Plaintiff’s Second Amended Complaint, the Court
may consider these documents in ruling on the Motion to Dismiss.
See, e.g., Jacobsen v. Oliver, 201 F. Supp. 2d 93, 110 (D.D.C.
2002).     According to Defendant’s interpretation of these
documents, Plaintiff’s upgrade to PG-20 was always intended to be
temporary.

                                       -3-
aware of two white Leads who were permitted to return to work at

Pepco following medical leave. Id. ¶ 16; Pl’s Decl. 2.

       Pepco denied Bryant’s request to be transferred.            Rather than

return to Pepco in his previous capacity at the PG-19 level, Bryant

chose to retire with full benefits in March 2008. Second Am. Compl.

¶14.

       On July 15, 2009 [Dkt. No. 4], Plaintiff amended his Complaint

and on July 29, 2009 [Dkt. No. 5], Defendant filed a Motion to

Dismiss, or in the Alternative, for a More Definite Statement.                  On

September 11, 2009, this Court denied Defendant’s Motion to Dismiss

and granted his Motion for a More Definite Statement [Dkt No. 12].

Plaintiff filed a more definite statement in the form of a Second

Amended Complaint on September 22, 2009 [Dkt No. 14].                 On October

6,    Pepco    filed   the   present   Motion   to   Dismiss   [Dkt     No.   16].

Plaintiff responded with a Brief in Opposition submitted on October

21, 2009 [Dkt No. 17] to which Defendant filed a Reply on October

30, 2009 [Dkt No. 19].         With leave of this Court, Plaintiff filed

a Supplemental Opposition on November 16, 2009, the contents of

which    are    almost   wholly    duplicative       of   Plaintiff’s    initial

Opposition Brief [Dkt. No. 21].

II.    STANDARD OF REVIEW

       Under Fed. R. Civ. P. 12(b)(6), a plaintiff need only plead

“enough facts to state a claim to relief that is plausible on its

                                       -4-
face    to    nudge[]       [his    or   her]      claims    across    the     line   from

conceivable to plausible.” Bell Atl. v. Twombly, 550 U.S. 544, 570,

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).                    “[A] complaint [does not]

suffice if it tenders naked assertions devoid of further factual

enhancement.” Ashcroft v. Iqbal, __ U.S. __, __, 129, S.Ct. 1937,

173    L.Ed.2d      868    (2009)    (internal       quotations       omitted)     (citing

Twombly, 550 U.S. at 557). Instead, the complaint must plead facts

that    are       more    than     “merely    consistent       with”    a     defendant’s

liability; “the pleaded factual content [must] allow[ ] the court

to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. at 1940.

       “[O]nce      a     claim    has   been   stated      adequately,       it   may   be

supported by showing any set of facts consistent with allegations

in the complaint.” Twombly, 550 U.S. at 563.                      Under the standard

set forth in Twombly, a “court deciding a motion to dismiss

must . . . assume all the allegations in the complaint are true

(even if doubtful in fact) . . . [and] must give the plaintiff the

benefit      of    all    reasonable     inferences         derived    from    the    facts

alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc.,

525 F.3d 8, 18 (D.C. Cir. 2008) (internal quotation marks and

citations omitted); see also Tooley v. Napolitano, 586 F.3d 1006,

1007    (D.C.      Cir.     2009)    (declining       to    reject     or   address      the

government’s argument that Iqbal invalidated Aktieselskabet).

                                             -5-
In the Title VII context, a plaintiff need not plead all elements

of a prima facie case in order to withstand a 12(b)(6) motion.             See

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The prima facie

elements    are   “an    evidentiary      standard,”    not     a    “pleading

requirement,” particularly in employment cases where discovery

“unearth[s] relevant facts and evidence.” Id. at 510-12.

While Swierkierwicz relied in part on the now abandoned standard

from Conley v. Gibson that a motion to dismiss should only be

granted if a “plaintiff can prove no set of facts in support of his

claim that would entitle him to relief,” 355 U.S. 41, 47 (1957),

Swierkierwicz’s holding remains good law after Iqbal and Twombly.2

See Winston v. Clough, 2010 WL 1875626, n. 10 (D.D.C. May 11, 2010)

(“Swierkierwicz . . . is still good law.”); Dave v. Lanier, 606 F.

Supp. 2d 45, 49 (D.D.C. 2009) (“It is not necessary for the

plaintiff to plead all elements of his prima facie case in the

complaint.”); accord Moore v. Metro. Human Serv. Dist., 2010 WL

1462224, at *3 (E.D. La. Apr. 8, 2010) (“[T]he current pleading

standards for a Title VII case . . . reconcile[s] Swierkiewicz,

Twombly, and Iqbal.”); Gillman v. Inner City Broad., 2009 WL 300244

(S.D.N.Y.   Sept. 18,     2009)   (“Iqbal   was   not   meant   to    displace

Swierkierwicz.”).       But see, e.g., Fowler v. UPMC Shadyside, 578


2
     Significantly, Twombly relied explicitly on Swierkierwicz and
Iqbal failed to mention Swierkierwicz or expressly overturn it.

                                    -6-
F.3d 203, 211 (3d Cir. 2009) (“because Conley has been specifically

repudiated by both Twombly and Iqbal, so too has Swierkiewicz.”).

Based on the reasoning of these cases, and in accordance with Fed.

R. Civ. P. 8(a)(2), this Court concludes that a Complaint needs to

include only “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Swierkierwicz, 534 U.S. at 512.

III. ANALYSIS

       A.   Count III and Count V

       Under Local Rule 7(b), if a plaintiff does not respond in his

Opposition to a claim made in a defendant’s Motion to Dismiss it

may be treated as conceded. See Harris v. Koenig, 2010 WL 2560038

(D.D.C. June 10, 2010).     In its pleadings, Defendant argued that

Count III should be dismissed because (1) Plaintiff failed to

adequately plead any of the required elements of a hostile work

environment claim, except that he was a member of a protected

class, and (2) that Plaintiff complained only of the kind of

“ordinary work-related concerns” which fail to rise to the level of

“hostile    work   environment   claims”   requiring   “discriminatory

intimidation, ridicule, and insult.” Mem. of Law in Supp. of

Pepco’s Mot. to Dismiss [Dkt. No. 16-2] (citing Ramey v. Pepco, 468

F. Supp. 2d 51, 57-58 (D.D.C. 2006)).        Plaintiff ignored these

arguments and failed to respond to Defendant’s challenges to Count

III.

                                    -7-
     As to Count V, Plaintiff also failed to respond to Defendant’s

contentions that Count V is duplicative of Count I, and that

Plaintiff failed to identify any specific facts regarding a mixed

motive including race. See Mem. of Law in Supp. of Pepco’s Mot. to

Dismiss. Because Plaintiff failed to oppose Defendant’s Motion to

Dismiss these counts, Defendant’s Motion to Dismiss is granted as

to Counts III and V.3

     B.     Count I

     Count I alleges that Bryant was discriminated against based on

his race.    To establish racial discrimination under Title VII a

plaintiff must show 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) (internal

citation omitted).    As already noted, a plaintiff need not plead

all elements of a prima facie case in a Title VII context to

survive a Rule 12(b)(6) motion. See Swierkierwicz, 534 U.S. at 512;

Winston, 2010 WL 1875626, at n. 10 (“Swierkierwicz . . . is still

good law.”). As the court explained in Rouse v. Berry, 680 F. Supp.

2d 233, 236 (D.D.C. 2010):



3
  It should be noted that Plaintiff was given the opportunity to
file a Supplemental Opposition and still failed to respond to
Defendant’s contentions.

                                -8-
            [T]he D.C. Circuit has long recognized the
            ease   with   which   a   plaintiff   claiming
            employment discrimination can survive a Rule
            12(b)(6) motion to dismiss. . . “I was turned
            down for a job because of my race’ is all a
            complaint has to state to survive a motion
            under 12(b)(6).” (citing Potts v. Howard Univ.
            Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir.
            2007)).

       However, a Plaintiff must plead “enough factual heft to show

a plausible entitlement to relief.” Winston, 2010 WL 1875626, at

*10.    Pleadings have sufficient “factual heft” when they allege

that “(i) the plaintiff suffered an adverse employment action and

(ii) because of his race, color, or religion, sex or national

origin.” Id. at *8.

       Both parties focus their arguments about Count I on two

particular acts: (1) Defendant’s reduction of Bryant’s pay and

responsibilities by demoting him from PG-20 to PG-19, and (2)

Defendant’s denial of Bryant’s request to return and be reassigned

following the completion of his sick leave.          Bryant alleges that

both acts were taken because of his race.

       1.   Plaintiff’s Reduced Responsibilities and Wages
            Claim

       Defendant argues that Plaintiff’s allegation that he was

demoted from PG-20 to PG-19 because of his race fails to present

sufficient     factual    support         to   demonstrate   Defendant’s

discriminatory intent.      Plaintiff responds that his pleadings



                                    -9-
provide sufficient evidence at the pleadings stage to withstand a

Rule 12(b)(6) motion.

     In Winston v. Clough, a Smithsonian employee’s Title VII

Complaint alleged simply that the Plaintiff had been suspended

without pay “because of his race and color” and that “other co-

workers outside of [his] protected class” engaged in the same

activity that resulted in his suspension, but were not disciplined.

2010 WL 1875626, at *2. The District Court recognized that these

two allegations were very broad. Yet, for purposes of pleading it

held that they were sufficient as they not only alleged race-based

discrimination   but   also   made    a     factual   argument   in   support,

rendering the Complaint “adequately pled.” Id. at *8.

     In this case, Bryant’s factual claims are similarly few in

number.   The only factual allegations that he makes are (1) that

his duties were given to a white Lead, (2) that he was demoted

because of his race, and (3) that white Leads were allowed to

choose their own on-call assignments while African American Leads

were not. Together, these facts, if proven, provide enough support

to “nudge a claim . . . across the line from conceivable to

plausible.” See Twombly, 550 U.S. at 570.             As in Winston, these

facts provide factual support necessary at this early pleading

stage from which this Court can infer discriminatory acts and

intent by Pepco.

                                     -10-
             2.     Plaintiff’s Reinstatement Claim

      Plaintiff also claims that Pepco discriminated against him

based   on   race    by   denying     his   request    to   be    reinstated     and

transferred following completion of his sick leave.                     Defendant

responds that this claim must be dismissed because Plaintiff fails

to plead sufficient facts to demonstrate, in anything more than a

conclusory way, that his reinstatement and reassignment were denied

because of race.

      Yet, as above, Plaintiff’s pleadings do more than simply

allege discrimination in a conclusory fashion.                   Specifically, He

alleges that he is aware of two white Leads who were reinstated by

Pepco following their use of sick leave. Pl. Decl. At 2. Because

these white comparators were permitted to return following their

use   of   sick   leave    and   he   was     not,   Plaintiff     argues   it    is

“plausible” that his request to return to Pepco was not granted

because he is African American. See id.              As in the previous claim,

if proven, the fact that these comparators were able to return

following completion of sick leave constitutes sufficient factual

support to render his claim “plausible” at this early stage of

litigation.       Defendant’s Motion to Dismiss Count I is therefore

denied.




                                       -11-
       C.   Count II

       Count II alleges that Pepco demoted Bryant from PG-20 to PG-19

in retaliation for his attendance at two informal meetings that

took place between management and black Leads.            In order to make

out a prima facie case of discriminatory retaliation under Title

VII, Bryant needs to show that “(1)[]he engaged in a statutorily

protected activity; (2)[]he suffered an adverse employment action;

and (3) there is a causal connection between the two.” Taylor v.

Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003).          While Bryant need not

plead all the elements of a prima facie case of retaliation, he

must plead sufficient factual allegations that together demonstrate

“plausibility.”     Defendant argues that this claim fails to satisfy

that   standard    for   two   reasons:   (1)   the   Complaint   fails   to

sufficiently identify a “protected activity,” and (2) the Complaint

fails to adequately articulate a causal link between the alleged

protected activity and Bryant’s demotion.

       There are two kinds of “protected activity” under 42 U.S.C. §

2000e-3(a).     The first consists of acts “oppo[sing] any practice

made an unlawful practice by this subchapter.” Crawford v. Metro.

Gov’t of Nashville, 129 S.Ct. 846, 850 (2009). The second consists

of     "ma[king]     a   charge,     testify[ing],       assist[ing],     or

participat[ing] in any manner in an investigation, proceeding or

hearing.” Id.      Plaintiff argues that his presence at the meeting

                                   -12-
was an act of opposition to what he believed was the unlawful

practice of discrimination against African American Leads.

     Defendant argues that, in order for Plaintiff’s activity to be

considered statutorily protected, he must allege that he said

something at these meetings or that he did something more than

merely attend. A Plaintiff’s statement of protected activity,

Defendant argues, must not be generic. See Broderick v. Donaldson,

437 F.3d 1226, 1232 (D.C. Cir. 2006). Yet, Plaintiff’s claims are

not generic.         Rather, Plaintiff specifically alleges that the

particular meetings he attended concerned allegations of racial

discrimination.

     The Supreme Court’s recent guidance in Crawford, 129 S.Ct.

846, is telling in this regard.         In Crawford, the Court held that

protected “opposition” for purposes of Title VII occurs when “an

employee communicates to her employer a belief that the employer

has engaged in . . . a form of employment discrimination . . . .”

Id. at 851 (citing EEOC Compliance Manual I-B(1),(2), p. 614:003

(Mar. 2003)).        While Bryant does not allege that he spoke at these

meetings, his attendance at them certainly could be viewed by his

supervisors     as    opposition   to   what   he   perceived   as   Pepco’s

discrimination against him and other black Leads.               Therefore,

Plaintiff’s Complaint will not be dismissed on the grounds that he

failed to adequately plead a “protected activity.”

                                    -13-
Defendant argues in the alternative that, even if Plaintiff has

sufficiently alleged “protected activity,” his retaliation claim

should be dismissed on the grounds that he failed to allege a

causal connection between his protected activity and an adverse

action by Pepco.         Because causation is often the most difficult

element to show in advance of discovery, courts generally rely on

the length of time between the protected activity and the adverse

action to determine whether causation has been sufficiently pled at

the motion to dismiss stage. See, e.g., Holcomb v. Powell, 433 F.3d

889, 903 (D.C. Cir. 2006); Booth v. District of Columbia, 2010 WL

1286318, *3 (D.D.C. Apr. 1, 2010).

         If   the   adverse   action   occurs   immediately    following    the

protected activity then the court is free to infer causality; if

the adverse action happens many months or years later courts are

less likely to allow such an inference.             See Id. (citing Clark

County Sch. Dist. v. Breeden, 532 U.S. 268, 273-274) (stating that

this Circuit has “made it clear that there is a point in time where

temporal proximity becomes too remote, without more, to permit an

inference of causation. . .        [and that is] action which occurs more

than three or four months after protected activity is not likely to

qualify for such a causal inference.”).

         However, “temporal proximity . . . is not a required element

of   a    retaliation    claim,   particularly     at   this   stage   of   the

                                       -14-
proceedings.” Dave, 606 F. Supp. 2d 45, 52-53.            In cases like this

one where four months separated the alleged protected activity and

the alleged discrimination, temporal proximity neither demonstrates

causality conclusively nor eliminates it conclusively.               Therefore,

courts must apply the traditional standard that “[a]t this early

stage of the proceedings, plaintiff can meet [his] prima facie

burden of causation simply by alleging that the adverse actions

were caused by [his] protected activity.” Vance v. Chao, 496 F.

Supp. 2d 182, 187 (D.D.C. 2007).

     Here, Plaintiff alleges that “as a result of having engaged in

a protected activity . . . he suffered retaliation in the form of

reassignment.   .     .    .”   Second   Am. Compl.   ¶   25.   To    be sure,

Plaintiff’s claim could be stronger if he had pled the connection

between the protected activity and the adverse action with greater

specificity.    Yet, such details are not required at this early

stage of the pleadings, particularly when only four months separate

the alleged protected activity and adverse action.                   Therefore,

Defendant’s Motion to Dismiss Count II is denied.

     D.    Count IV

     Finally, Plaintiff fails to allege sufficient facts to render

his claim in Count IV for “constructive discharge” plausible.                 To

establish a claim of constructive discharge, the plaintiff must

prove   that   “(1)       intentional    discrimination   existed,     (2)   the

                                         -15-
employer deliberately made working conditions intolerable, and (3)

aggravating factors justified the [plaintiff's] conclusion that

[he] had no option but to end [his] employment.” Villines v. United

Brotherhood of Carpenters and Joiners of America, AFL-CIO, 999 F.

Supp. 97, 104-05 (D.D.C. 1998) (citing Clark v. Marsh, 665 F.2d

1168, 1173-74 (D.C. Cir. 1981)).             Plaintiff’s only pleadings in

support of his allegation for constructive discharge state that his

doctor recommended he be transferred and Defendant refused to

transfer him. In addition, he alleges, in conclusory fashion, with

no factual detail, that he was subjected to “intolerable working

conditions”--one       of     the    elements    necessary    to     establish

“constructive termination.”

     Plaintiff’s pleadings are deficient in two ways.                  First,

Plaintiff fails to plead any additional facts to demonstrate that

he was subjected to “intolerable working conditions,” an essential

element of a constructive termination claim.              Rather, he simply

restates   that   he    was    not   granted    the   reassignment    that   he

requested.   This is insufficient under Twombly as it represents

little more than a “formulaic recitation of the elements of a cause

of action.” 550 U.S. at 556.          Second, simply denying a transfer,

even if recommended by a doctor, is not the kind of harassing

conduct required to demonstrate that a reasonable Plaintiff would




                                      -16-
be left “no realistic option but to quit his or her job.” See,

e.g.,   Veitch v. England, 471 F.3d 124, 131-32 (D.C. Cir. 2006).

As Plaintiff fails to allege sufficient facts to support either the

claim that he was denied his request for transfer because of his

race or the claim that not being granted a transfer reached the

level of “intolerable working conditions,” Plaintiff’s Motion to

Dismiss as to Count IV is granted.

IV. CONCLUSION

     For the reasons set forth above, Defendant’s Motion to Dismiss

Plaintiff’s Amended Complaint under Fed. R. Civ. P. 12(b)(6) is

granted for Counts III-V.   It is denied as to Counts I and II. An

order will accompany this Memorandum Opinion.




August 9, 2010                  /s/
                               Gladys Kessler
                               United States District Judge

Copies via ECF to all counsel of record




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