UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

YOLONDA MACK, )
)
Plaintiff, )
)
v. ) Civil Case No. 15-1973 (RJL)
)
ASPEN OF DC, INC. et al, )
) F I L E D
Defendants. h ) MAR 31 2017
MEMORANDUM OPINION 1`%'°"‘» U-S- D|str|ct& Ban
(March?£, 2017) [Dkt. # 8] ’ ""s ‘°'"'e D'S*"°f°fcvwmma

Plaintiff Yolonda Mack (“plaintiff" or “Mack”) brings this action against Aspen of
DC (“Aspen”), Brandy R. Butler (“Butler”), the District of Columbia Department of
General Services (“DC DGS”) and DC DGS Acting Director Christopher Weaver
(“Weaver”). She alleges discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. against all four defendants, and
failure to pay Wages in violation of D.C. Code § 32-1012 et seq. against Aspen and
Butler.

Defendants DC DGS and Weaver (“DGS defendants”) filed a Motion to Dismiss
the claims against them. [Dkt. # 8]. Upon consideration of the pleadings and relevant
law, I Will GRANT defendants’ motion and dismiss the claims against them Without
prejudice

BACKGROUND
According to the allegations in the Amended Complaint, Mack Was employed from

2011 to 2014 by Aspen, a company that provides contract employee management and

staffing to government and commercial clients. Am. Compl. 11 5 [Dkt. # l]. Defendant
Butler was (and is) Aspen’s President and CEO. Ia'. 11 6. DC DGS is the District agency
that manages District-owned facilities, including oversight of “lease administration and
rent collection” at the District-owned Eastern Market facility. Id. 11 7. Defendant Weaver
is DC DGS’s Acting Director. Ia’. 11 8.

Mack worked as Eastern Market’s North Hall Event Space Coordinator, pursuant
to a contract between Aspen and DC DGS. Ia’. 11 4. During her employment, Mack
alleges that she was repeatedly sexually harassed by Katrina Cufffey, a fellow Aspen
employee who also worked at Eastern Market. Id. 1111 9~13. She alleges that she and
Cuffey were both supervised on a daily basis by DC DGS employee Barry Margeson. Id.
11 9.

Mack alleges that she complained about Cuffey’s sexual harassment to Butler and
Margeson, but neither stopped the harassment Id. 1111 13-14. She also alleges that the
she filed a formal complaint about the harassment with Aspen in February 2014. Ia’. at
15. As a result, she alleges Aspen conducted an internal investigation that concluded
that Cuffey sent “sexually explicit communications” that Mack found “uninvited and
harassing in nature,” advised Cuffey that the alleged behavior violated company policy,
and recommended sexual harassment training for both Mack and Cuffey. Id. 16~17.
Because Cuffey was neither terminated nor meaningfully disciplined, Mack alleges that

the internal investigation was a “sham designed to minimize Aspen’s liability and reach a

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predetermined outcome . . . .” Id. 11 16.

Mack alleges that Aspen and DC DGS retaliated against her after she complained
about the sexual harassment Ia’. 11 16. She alleges that Aspen falsely claimed in its
investigation written report that the investigation uncovered evidence suggesting the
Mack was using illegal drugs at work. Id. She also alleges that her contractor position
was eliminated in September 2014, that she was not given the chance to compete for a
fulltime position with DC DGS, and that Aspen withheld her final paycheck, in retaliation
for reporting sexual harassment Ia’.

STANDARD OF REVIEW

When ruling on a Rule 12(b)(6) motion to dismiss a complaint, the Court must
determine whether the plaintiffs complaint contains “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 omitted). The Court must read the
complaint’s factual allegations in the light most favorable to the plaintiff, Bell Atlantic Co
v. Twombly, 550 U.S. 544, 555 (2007), but the Court is not required to accept “a legal
conclusion couched in the form of a factual allegation” or “threadbare recitals of a cause
of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 679.
In addition, a claim that is based on an incorrect legal theory must be dismissed, “without
regard to whether it is based on an outlandish legal theory or on a close but ultimately

unavailing one.” Nz`etzke v. Williams, 490 U.S. 319, 327 (1989).

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ANALYSIS

Mack alleges that Aspen and DGS “intentionally discriminated against [her] in
violation of` Title VII by retaliating against her for opposing unlawful sex discrimination.”
Compl. 11 28. To establish a prima facie Title VII claim for discrimination, the plaintiff
must show “(l) she is a member of a protected class; (2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.” Stella v. Mz`neta, 284 F.3d 135, 145 (D.C, Cir. 2002). For a retaliation
claim, a plaintiff must show “that she engage in protected activity, that she suffered an
adverse employment action, and that there was a causal link between the former and the
latter.” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015).

As an initial matter, Mack sued the wrong defendants Mack names DC DGS, a
subordinate agency in the District’s government, as one of the defendants However, the
District of Columbia is the proper defendant in a Title VII case, rather than any
subordinate government agencies or departments. Hunter v. D.C. Child & Famz'ly Servs.
Agency, 710 F. Supp. 2d 152, 157 (D.D.C. 2010) (“[I]n a Title VII case against the
District of Columbia, the District is the proper defendant, not its agencies.”).
Furthermore, Mack sues DC DGS Acting Director Weaver in his official capacity. The
Supreme Court has noted that “[t]here is no . . . need to bring official-capacity actions

against local government officials, for . . . local government units can be sued directly for

damages or injunctive relief.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). As
a result, the proper defendant here is the District of Columbia.

Mack asks the Court to construe defendants’ motion as a motion to substitute the
proper parties, and she is correct that courts of this District have chosen to substitute the
District as a defendant when a plaintiff erroneously names a District agency as a
defendant See, e.g., Sampson v. D.C. Dep’t of Correctl'ons, 20 F. Supp. 3d 282, 285
(D.D.C. 2014) (construing motion to dismiss as motion to substitute and substituting the
District as the proper defendant). However, l decline to do so here because the Mack’s
claim against DC DGS and Weaver-or the District-_must be dismissed whether or not
the proper defendant is named.

Title VII prohibits “employers” from discriminating against their employees 42
U.S.C. § 2000e, § 2000e-2, § 2000e-3. Here, Mack has not alleged facts that, taken as
true, would state a claim that DC DGS was her employer.l Mack alleges that she worked
at Eastern Market pursuant to a contract between Aspen and DC DGS. Under such
circumstances courts have found it possible for an individual to be a “joint employee” of
both an employment agency and the client entity. The Courts of this District apply two
difference tests to determine whether an individual has joint employers Under the first

test, referred to as the Browning-Ferris test, the court looks at whether “two or more

 

' To the extent that Mack’s claim includes an allegation that DC DGS refused to hire her for a position
on the basis of discrimination and retaliation, she does not need to allege that DC DGS was already her
employer. However, she has not alleged facts that would establish a causal link between reporting
harassment to Aspen in February 2014 and DC DGS’s decision to not hire her seven months later.

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employers exert significant control over the same employee_where it can be shown that
they share or co-determine those matters governing essential terms and conditions of
employment.” NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d
Cir. 1982); Rea’d v. Summers, 232 F.3d 933, 938 (D.C. Cir. 2000) (referring to
Browning-Ferris test as a “fairly standard formulation” of the joint employment test);
Coles v. Harvey, 471 F. Supp. 2d 46, 50-51 (D.D.C. 2007) (applying Browm'ng-Ferris
test).

The other test, often referred to as the “Spirides factors”, requires courts to weigh
12 separate factors when determining whether an entity can be considered a joint
employer. The first and most important consideration is whether the alleged additional
employer “has the right to control and direct the work of [the] individual, not only as to
the result to be achieved, but also as to the details by which that result is achieved.”
Spl`rl`des v. Rel'nhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979). Af`ter considering this, the
court should weigh the following eleven factors:

(1) the kind of occupation, with reference to whether the work usually is

done under the direction of a supervisor or is done by a specialist without

supervision; (2) the skill required in the particular occupation; (3) whether

the “employer” or the individual in question furnishes the equipment used

and the place of work; (4) the length of time during which the individual

has worked; (5) the method of payment, whether by time or by the job; (6)

the manner in which the work relationship is terminated; i. e., by one or

both parties, with or without notice and explanation; (7) whether annual

leave is afforded; (8) whether the work is an integral part of the business of

the “employer”; (9) whether the worker accumulates retirement benefits;

(10) whether the “employer” pays social security taxes; and (11) the
intention of the parties

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Id. See also Sl'mms v. D.C. Gov’t, 587 F. Supp. 2d 269, 273-75 (D.D.C. 2008).

Our Circuit has invoked the Spl'ria’es factors and the Ferri§-Browm`ng test for joint
employment, but has declined to resolve which of the two tests should govern. Rea’a' v.
Summers, 232 F.3d 933, 937-38 (D.C. Cir. 2000). I need not decide which test should
govern here, because Mack’s claims against DC DGS fail under either test Even
construing her allegations favorably, her complaint does not allege that DC DGS was her
employer. On the contrary, Mack explicitly alleges that Aspen was her “employer” from
2011 to 2014. Compl. 11 4. Furthermore, she alleges that Aspen conducted the internal
investigation into her harassment and prepared a written report with its conclusions Id.
1111 16-17. She also alleges that Aspen withheld her final paycheck, indicating that Aspen
controlled the terms of her payment Id. 11

Her allegations are much thinner with respect to DC DGS. She simply alleges
that she “reported to and [was] directly supervised” by a DC DGS employee on a daily
basis By itself, that indicates that DC DGS exercised some supervision over her work,
but it does not allege that DC DGS “share[d] or co-determine[d] [the] matters governing
essential terms and conditions of [her] employment” or that DC DGS could “control and
direct” both the details and the results of her work. The complaint is unclear about the

scope of DC DGS’s authority over her-whether it had authority to change her method

and amount of payment, 2 her responsibilities her place of work, her work schedule, her
method and amount of payment, or could choose to discipline or terminate her. Notably,
Mack alleges that “she was notified” in September 2014 that her contractor position was
being eliminated and that her last day of work would be September 30, 2014, but she does
not specify who notified her, or whether DC DGS played any role in the decision to
terminate her specifically, as compared to other Aspen contract employees The joint
employment test is a fact-intensive inquiry, and at the motion to dismiss stage, Mack need
not allege every facet of her relationship with DC DGS to allege that it was a joint
employer. But she must provide more detail than she has for the Court to include that the
District was her employer for purposes of Title VII liability, particularly when she
explicitly alleges that another entity_Aspen_was her employer. Because of the paucity
of her allegations against DC DGS, she has not sufficiently alleged that the District was
her “employer” for purposes of Title VII liability, and the claim against DC DGS and
Weaver must be dismissed

However, I will dismiss the claim against DC DGS and Weaver without prejudice
Our Circuit has stated that “dismissal with prejudice is warranted only when a trial court
determines that the allegations of other facts consistent with the challenged pleading

could not possibly cure the deficiency.” Rollins v. Wackenhut Servs., Inc., 703 F.3d

 

2 The complaint does allege that her DC DGS supervisor told her in 2014 that she would receive an
hourly rate increase Id. 11 18. She does not allege whether DC DGS made the decision to raise her pay
or was simply communicating a decision that Aspen made. This statement is not enough by itself to
suggest that DC DGS exercised control over the method and terms of her payment

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1205, 1209 (D.C. Cir. 1996). Although her allegations about DC DGS are insufficient
here, 1 am not convinced that she is unable to plead other facts, consistent with the current
Complaint, that would cure the deficiency and state a claim that DC DGS was her joint
employer with Aspen.
CONCLUSION
For all of the foregoing reasons, the Court will DGS defendants’ Motion to
Dismiss the claims against them without prejudice An Order consistent with this

decision accompanies this Memorandum Opinion. ~

MM/

RICHARD J.\I,EioN
United States District Judge

