                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
RAMONA JOHNSON, et al.,       )
                              )
          Plaintiffs,         )
                              )
          v.                  )   Civil Action No. 07-2192 (RWR)
                              )
JANET NAPOLITANO,             )
                              )
          Defendant.          )
______________________________)


                   MEMORANDUM OPINION AND ORDER

     Plaintiffs Ramona Johnson and her husband Tony Ball bring

this action under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3(a), against the Secretary1 of the Department of

Homeland Security (“DHS”), alleging that the Secret Service, a

DHS agency, unlawfully retaliated against Johnson because Ball

pursued a discrimination class action and an equal employment

opportunity (“EEO”) complaint of discrimination against the

Secret Service.   DHS has moved to dismiss Johnson as a plaintiff

under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim upon which relief can be granted, alleging that

Johnson cannot maintain a cause of action under § 2000e-3(a)

because she did not oppose personally an unlawful employment

practice or participate in a protected activity, and that Johnson



1
  Janet Napolitano is substituted as the defendant under Fed. R.
Civ. P. 25(d).
                                 -2-

was not perceived as having participated in Ball’s activities.

Treated as a motion for summary judgment, DHS’s motion will be

denied because a genuine dispute exists over the material fact of

whether the Secret Service perceived Johnson as having

participated in Ball’s protected activities and retaliated

against her for her participation.

                             BACKGROUND

     Plaintiffs Johnson and Ball are married Secret Service

employees who used to reside together in the District of

Columbia.    (Consol. Compl. ¶¶ 6, 13.)   Ball is a member of a

class of African-American Secret Service special agents who filed

in 2000 a pending employment discrimination lawsuit (“Moore”).

(Id. at 2.)    In 2005, Ball filed an EEO complaint of

discrimination against the Secret Service, alleging that he was

denied a promotion because he is African-American.     (Id. ¶ 7.)

Later, Ball was offered a different promotion, but was notified

that to accept the promotion, he would have to relocate to a

Miami, Florida field office.    (Id. ¶ 8.)   Ball’s EEO complaint

included allegations that the Secret Service frequently treated

African-American special agents differently by requiring them to

relocate from the Washington, D.C. area to receive promotions.

(Id. ¶ 9.)

     Over the course of six months, Secret Service supervisors

continuously told Ball and Johnson that she also would be
                                 -3-

transferred to the Miami office in order to be able to continue

to reside with Ball.    (Id. ¶¶ 11-14, 17-19.)   Such a transfer

reflected established practice within the Secret Service.     (Id.

¶ 10.)    Ball relocated to the Miami office in April 2006, and he

requested a hearing with an EEOC Administrative Judge regarding

his 2005 EEO complaint in June 2006.    (Id. ¶¶ 16, 21.)   In July

2006, however, the Secret Service abruptly notified Johnson that

she no longer would be transferred, and has persisted in refusing

to transfer her.    (Id. ¶¶ 22, 26.)

       After filing her own EEO complaint alleging retaliation and

exhausting all administrative remedies (Johnson Compl. ¶ 29),

Johnson brought this action under 42 U.S.C. § 2000e-3(a),

claiming that the refusal to transfer her was unlawful

“retaliation for having complained about racial discrimination in

employment” (Id. ¶ 1), and arose from Ball’s ongoing

“participation as a member in [the] class action” and continued

pursuit of his EEO complaint after his promotion.     (Id. ¶¶ 2, 9,

27.)    Ball filed a parallel action which has been consolidated

with Johnson’s.    DHS has moved under Rule 12(b)(6) to dismiss

Johnson as a plaintiff, arguing that § 2000e-3(a) does not

recognize third party retaliation claims and that the Secret

Service never perceived Johnson as a participant in Ball’s EEO

complaint.    (Def.’s Mem. in Supp. of Mot. to Dismiss Ramona

Johnson as a Pl. at 1; Reply in Supp. of Def.’s Mot. to Dismiss
                                  -4-

Ramona Johnson as Pl. (“Def.’s Reply”) at 9.)   Johnson opposes,

arguing that the statute recognizes a retaliation claim based on

a third party’s protected activity, and that the Secret Service

viewed Johnson as a participant in her husband’s protected EEO

activity as a class member in the related discrimination class

action, as evidenced by DHS’s decision to notice her deposition

in that lawsuit.   (See Pl. Ramona Johnson’s Opp’n to Mot. to

Dismiss (“Pl.’s Opp’n”) at 15.)

                             DISCUSSION

     A complaint will be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted.   See Fed. R. Civ. P. 12(b)(6).   “To survive a motion to

dismiss, a complaint must contain sufficient factual matter,

acceptable as true, to ‘state a claim to relief that is plausible

on its face.’”    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)).   However, “[w]hen ‘matters outside the pleadings are

presented to and not excluded by the court’ on a motion to

dismiss under Rule 12(b)(6), ‘the motion must be treated as one

for summary judgment[.]’”   Highland Renovation Corp v. Hanover

Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R.

Civ. P. 12(d)).    Because Johnson has submitted from outside the

pleadings a deposition notice that has not been excluded, DHS’s

motion will be treated as one for summary judgment.
                                  -5-

       Summary judgment is granted when the moving party

demonstrates that there is no genuine issue as to any material

fact and that moving party is entitled to judgment as a matter of

law.    Fed. R. Civ. P. 56(c).   In deciding a motion for summary

judgment, a court must draw all justifiable inferences in favor

of the nonmovant.    Cruz-Packer v. District of Columbia, 539 F.

Supp. 2d 181, 189 (D.D.C. 2008).     “A genuine issue is present

where the ‘evidence is such that a reasonable jury could return a

verdict for the non-moving party,’ in contrast to a situation

where the evidence is ‘so one-sided that one party must prevail

as a matter of law.’”    Citizens For Responsibility and Ethics in

Wash. v. Bd. of Governors of the Fed. Reserve Sys., Civil Action

No. 09-633 (RWR), 2009 WL 3859700, at *2 (Nov. 19, 2009) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

       Title VII prohibits employers from taking retaliatory

actions against an employee “because he has opposed any practice

made an unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this subchapter.”     42 U.S.C. § 2000e-3(a).   DHS

argues that Johnson’s complaint should be dismissed because Title

VII does not protect family members who are retaliated against

based on the protected activity of their spouse.     Some courts

considering the scope of § 2000e-3(a) and other similar anti-
                                 -6-

retaliation statutes have found that the statutes’ plain language

“requires that the person retaliated against also be the person

who engaged in the protected activity[,]” see Fogleman v. Mercy

Hosp., Inc., 283 F.3d 561, 568 (3d Cir. 2002) (discussing the

ADEA), and provides no “‘piggyback’ protection” of spouses “who

. . . did not engage in protected activity, but who [are] merely

associated with another employee who did oppose an alleged

unlawful employment practice.”   Thompson v. N. Am. Stainless, LP,

567 F.3d 804, 816 (6th Cir. 2009) (en banc) (discussing Title

VII); see also Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226 (5th

Cir. 1996) (discussing the ADEA2); Smith v. Riceland Foods, Inc.,

151 F.3d 813, 819 (8th Cir. 1998) (discussing Title VII).

     Johnson asserts that Title VII’s anti-retaliation provision

should be read to protect her, citing for support DeMedina v.

Reinhardt, 444 F. Supp. 573 (D.D.C. 1978).    DeMedina held that a

wife could bring a retaliation claim for actions taken against

her in response to protected activities engaged in by her husband

exclusively.   444 F. Supp. at 580-81.   There, the plaintiff

brought a claim under Title VII alleging that she applied for and

was denied a number of positions within the United States

Information Agency based on her husband’s anti-discrimination

2
     “The anti-retaliation provisions of the ADEA and Title VII
are similar and ‘cases interpreting the latter provision are
frequently relied upon in interpreting the former.’” Holt, 89
F.3d at 1226 n.1 (quoting Shirley v. Chrysler First, Inc., 970
F.2d 39, 42 n.5 (5th Cir. 1992)); see also Thompson, 567 F.3d at
809 n.3.
                                   -7-

activities.      See Id. at 574, 580.    Focusing on congressional

intent, DeMedina stated that “Congress unmistakably intended to

ensure that no person would be deterred from exercising his

rights under Title VII by the threat of discriminatory

retaliation.”     Id. at 580.   The court further stated that a

strict reading of Title VII “would produce absurd and unjust

results, for while plaintiff’s husband might be in a position to

seek injunctive relief to prohibit future reprisals against his

spouse, he would certainly not be in a position to seek back pay

and/or retroactive promotion based on his spouse’s employment

denial.”   Id.    And Crawford v. Metro. Gov’t of Nashville and

Davidson County, Tenn., 129 S. Ct. 846 (2009), examined whether

§ 2000e-3(a) protects “an employee who speaks out about

discrimination not on her own initiative, but in answering

questions during an employer’s internal investigation.”       129 S.

Ct. at 849.   The Court extended Title VII’s anti-retaliation

provision to employees in that circumstance.

     Here, the debate may be academic since Johnson’s complaint

includes an allegation that she was retaliated against because

she complained about racial discrimination in employment.

(Johnson Compl. ¶ 1.)     In any event, Johnson contends that even

if § 2000e-3(a) is interpreted to provide a cause of action only

for those who personally participate in protected activity, she

nonetheless has alleged sufficient facts –- namely, DHS’s
                                -8-

decision to notice her deposition in Moore -- to demonstrate that

the Secret Service perceived her as having participated in her

husband’s action and retaliated against her based upon this

perception.   The Third Circuit has embraced a perception theory

of retaliation.   See Fogleman, 283 F.3d at 571-72; but see

McKinney v. Bolivar Med. Ctr., 341 Fed. Appx. 80, 83 (5th Cir.

2009) (noting that “the Fifth Circuit has not adopted this

perception theory of retaliation” and “nothing in the record

suggests that [the defendant] believed [the plaintiff] to be

engaged in protected activity or that it terminated him for that

reason”).   Fogleman stated that a perception theory is not

contradicted by the statute’s plain language; rather it is

supported by § 2000e-3(a)’s language.   The statute “focus[es] on

the employer’s subjective reasons for taking adverse action

against an employee[.]   [Thus,] it matters not whether the

reasons behind the employer’s discriminatory animus are actually

correct as a factual matter.”   Fogleman, 283 F.3d at 571.    For

example, if

      an employer refuses to hire a prospective employee
      because he thinks that the applicant is a Muslim[,]
      [t]he employer is still discriminating on the basis of
      religion even if the applicant he refuses to hire is
      not in fact a Muslim. What is relevant is that the
      applicant, whether Muslim or not, was treated worse
      that he otherwise would have been for reasons
      prohibited by the statute.

Id.
                                -9-

     In support of her argument, Johnson states that “[l]ong

before plaintiff Johnson filed this claim . . . , defendant

noticed Ms. Johnson for deposition in the Moore . . . litigation,

even though Ms. Johnson, who is not a Special Agent, was not a

member of that class.”   (Pl.’s Opp’n at 15.)   DHS, on the other

hand, argues that there is no basis to conclude that the Secret

Service perceived Johnson to be a witness at the time it

allegedly retaliated against Johnson because

     Johnson was not even employed by the Secret Service at
     the time her husband was denied the promotion at issue;
     she was not employed by the agency at the time her
     husband initiated the EEO process; and there is no
     allegation in the Complaint that Johnson assisted Ball
     . . . with his EEO Complaint.

(Def.’s Reply at 9.)   DHS further argues that “the allegedly

retaliatory act in this case (not transferring Johnson to Miami)

occurred in July 2006, four months before the Secret Service

noticed Johnson’s deposition in the Moore case.”    (Id. at 10.)

     DHS’s arguments, however, miss the mark.   It was not

necessary for Johnson to have been employed by the Secret Service

at the time Ball was denied the promotion or initiated his

complaint for the Secret Service to have perceived Johnson, once

she was hired, as having participated in Ball’s protected

activities.   The complaint states that the defendant abruptly

refused to transfer Johnson the month after Ball filed his

request for a hearing with an EEOC administrative judge.

(Consol. Compl. ¶¶ 21-22.)   That the complaint does not allege
                                 -10-

that Johnson assisted Ball with his EEO complaint is of no moment

for at least two reasons.   It is irrelevant to the issue of

whether the Secret Service perceived Johnson as having

participated in Ball’s EEO complaint.    A perception theory of

retaliation does not rest on whether the employee actually

asserts participation in a protected activity; rather, the theory

applies so long as the employer believed that the employee was

engaged in protected activity.    See Fogleman, 283 F.3d at 565.

Also, Ball’s protected activities identified in the complaint

were not limited to his EEO complaint.    (See Pl.’s Opp’n at 15

(“defendant identified [Johnson] as a witness in connection with

her [husband’s] claims[,]” citing Moore) (emphasis added).)

     Moreover, that the defendant did not seek to depose Johnson

until after the alleged retaliatory act took place means little.

The sequence could hardly have been otherwise.    A party could not

be expected to notice the deposition of an employee perceived as

assisting in a spouse’s claim before the perception arises.    Nor

does the sequence mean that at the time of the retaliatory act,

there can be no inference that the defendant perceived Johnson as

a participant in her husband’s claims.    In addition to Johnson’s

assertion that the defendant noticed her deposition and thus

believed her to be a witness in Ball’s protected activities, the

complaint alleges sufficient facts to raise an inference that the

defendant perceived her as participating in Ball’s action.     The
                               -11-

complaint alleges that the Secret Service knew that Ball and

Johnson were married; that shortly after Ball requested an EEOC

hearing, Johnson was notified that her transfer would not take

place; and that plaintiffs’ supervisors commented repeatedly to

Johnson about Ball’s administrative action.     (Consol. Compl.

¶¶ 21-24.)

     Johnson has raised a genuine issue as to whether the Secret

Service perceived her as having played a role in her husband’s

complaint.   See, e.g., Fogleman, 283 F.3d at 572 (noting that the

district court should have considered plaintiff’s perception

theory of retaliation, which was supported by evidence of the

defendant’s somewhat colder demeanor toward the plaintiff after

the plaintiff’s father filed a discrimination lawsuit and after

the defendant circulated a memo related to the lawsuit, the

defendant’s repeated questioning of the plaintiff about the

lawsuit, and the plaintiff’s termination itself).     Because a

genuine dispute over this material fact exists, DHS’s motion will

be denied.

                            CONCLUSION

     Whether or not 42 U.S.C. § 2000e-3(a) allows a plaintiff to

bring a claim of retaliation based on the protected activity of a

third party, Johnson has identified a genuine issue of material

fact with respect to her claim of retaliation based on a

perception theory of retaliation.     Accordingly, it is hereby
                              -12-

     ORDERED that the defendant’s motion [19] to dismiss, treated

as a motion for summary judgment, be, and hereby is, DENIED.    It

is further

     ORDERED that the Clerk substitute Janet Napolitano as the

defendant under Fed. R. Civ. P. 25(d).

     SIGNED this 24th day of February, 2010.


                                         /s/
                                 RICHARD W. ROBERTS
                                 United States District Judge
