                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
CHRISTINE KING,                     )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 11-1184 (ABJ)
                                    )
TRISER SALONS, LLC, et al.,         )
                                    )
                  Defendants.       )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Christine King brings this action against Triser Salons, LLC and Mukesh Patel,

alleging sexual harassment and a hostile work environment in violation of the D.C. Human

Rights Act of 1977, D.C. Code § 2-1401, et seq. (2001) (“DCHRA”). Compl. ¶ 24. 1 She alleges

that she was subjected to repeated unwanted sexual advances and sexual comments made by a

co-worker at the Supercuts salon where she was employed, and that her complaints to the

manager were unavailing. Triser owns and operates the Supercuts salon where plaintiff was

employed, and, according to defendants, Patel and his wife are the sole members of Triser.

Defs.’ Mem. at 2.

       Defendants move to dismiss under Fed. R. Civ. P. 12(b)(6), or, in the alternative, for

summary judgment under Fed. R. Civ. P. 56(a) [Dkt. #3], arguing that Patel cannot be held

individually liable under the DCHRA since he was not plaintiff’s supervisor and there is no



1       Defendants argued that plaintiff failed to state a claim for constructive discharge because
plaintiff quit her job after the co-worker that had allegedly harassed her had been placed on
leave. Defs.’ Mem. 8–9. Plaintiff subsequently withdrew her allegation of constructive
discharge to the extent it was interpreted as a separate count. Pl.’s Opp. at 1, n.1
allegation that he participated in the unlawful conduct. Defs.’ Mem. at 5–-6. Defendants also

argue that plaintiff’s hostile work environment claim fails as a matter of law because 1) plaintiff

did not report the conduct described in the complaint to Patel or Triser; 2) Triser had policies in

place that prohibited discriminatory conduct and provided employees with the means to report it;

and 3) Patel took action to place the co-worker on administrative leave when an incident was

first reported to him. Defs.’ Mem. at 6–9. Defendants do not articulate a basis for dismissing the

claims against Triser on their face; rather, they advance factual arguments based upon Patel’s

affidavit that contradict the hostile work environment allegations. Therefore, the Court will treat

the motion as a motion for summary judgment with respect to Triser, while continuing to review

Patel’s claim as motion to dismiss.2

       Plaintiff opposes defendants’ motions, arguing that Patel is an “employer” who can be

found liable under the DCHRA and that the defendants knew or should have known about the

harassment but failed to implement prompt and appropriate corrective action. Pl.’s Opp. at 2.

For the reasons stated below, the Court will grant defendant Patel’s motion to dismiss without

prejudice and deny summary judgment for defendant Triser at this time.

                                        BACKGROUND

       Beginning in the spring of 2010, plaintiff worked at a Supercuts salon owned by

defendant Triser. Compl. ¶ 6. She alleges that her co-worker, Gary Blair, made regular,

inappropriate and unwanted sexual remarks and advances towards her on numerous occasions.

Id. ¶ 8. Plaintiff alleges that she complained to the store manager, Darrell Morrison, once a week

about her co-worker’s behavior. Id. ¶ 11. According to plaintiff, although Morrison observed

Blair’s behavior and spoke with Blair on numerous occasions, “it did no good, [Blair] would not


2      The Court notes that defendants did not file a statement of material facts with their
motion for summary judgment as required by LCvR 7(h)(1).
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listen to [Morrison], and [Morrison] could not get [Blair] to stop.” 3 Id. ¶ 12. On or about

January 23, 2011, Blair showed plaintiff a photo of his genitals. Plaintiff told her husband about

the photo, and plaintiff’s husband called Morrison to speak with him about it. Id. ¶ 8. She states

that “[w]orking conditions were so intolerable that [she] was forced to quit.” Id. ¶ 14.

        Plaintiff alleges that defendants “failed to take appropriate remedial action to prevent or

stop [the harassment] from happening” and that defendants subjected her to a severe and hostile

work environment. Id. ¶¶ 8, 13. Plaintiff claims that both defendants knew or should have

known about the harassing behavior. Id. ¶ 13.

                                    STANDARD OF REVIEW

       I.      Motion to dismiss under Rule 12(b)(6)

       “To survive a [Rule 12(b)(6)] 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, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 4 In Iqbal, the Supreme Court reiterated the

two principles underlying its decision in Twombly: “First, the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft, 129 S. Ct. at 1949. And “[s]econd, only a complaint that states a plausible claim for

relief survives a motion to dismiss.” Id. at 1950.




3        Neither Blair, the alleged harasser, nor Morrison, the supervisor, is named as a defendant
in this action.

4      Plaintiff improperly relies on the “no set of facts” pleading requirement set forth in
Conley v. Gibson, 355 U.S. 41 (1957). Pl.’s Opp. at 7. That standard was expressly modified by
the Supreme Court in Twombly. 550 U.S. at 570.


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        A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.

“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. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice,” id.

        When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider

only “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) (citations omitted).

        II.    Motion for Summary Judgment under Rule 56(a)

        Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if



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any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-

moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation.

Id. See also Laningham v. U.S. Navy, 813 F.2d 1236 (D.C. Cir. 1987). In assessing a party’s

motion, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-

moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010),

citing Anderson, 477 U.S. at 247.

                                             ANALYSIS

      I.         Patel’s Motion to Dismiss

           The DCHRA prohibits employment discrimination by an “employer,” defined as “any

person who, for compensation, employs an individual” or “any person acting in the interest of

such employer, directly or indirectly.”        D.C. Code § 2-1401.02(10).         Defendant Patel

acknowledges that liability under the DCHRA may be imposed against an individual who

participates in the discriminatory conduct or who exercises supervisory authority over the

workplace. See Smith v. Café Asia, 598 F. Supp. 2d 45, 48 (D.D.C. 2009); Purcell v. Thomas,

928 A.2d 699, 716 (D.C. 2007). But he contends that since the complaint does not allege that he

did either, it should be dismissed against him. Defs.’ Mem. at 5–6.

           Courts have held individuals liable under the DCHRA when they were personally

involved in the discriminatory conduct, see Wallace v. Skadden, Arps, Slate, Meagher & Flom,



                                                 5
715 A.2d 873, 889 (D.C. 1998), or when they aided or abetted in the discriminatory conduct of

others. Smith, 598 F. Supp. 2d at 46; see also D.C. Code § § 2-1402.62. Courts have permitted

actions against plaintiffs’ supervisors to proceed under an aiding and abetting theory when it was

alleged that they knew or should have known about the discriminatory conduct and failed to stop

it. Smith, 598 F. Supp. 2d at 46 (allowing amendment of complaint where individual managers

who were aware of verbal harassment but did not remedy the situation); MacIntosh v. Bldg.

Owners and Managers Ass’n, 355 F. Supp. 2d 223, 225, 227–28 (D.D.C. 2005) (denying motion

to dismiss by an executive director who was made aware of unfair pay practices); Russ v. Van

Scoyoc Assocs., 59 F. Supp. 2d 20, 22–23, 25 (D.D.C. 1999) (denying motion to dismiss by an

owner and supervisor who was made aware of ongoing harassment by the employee but failed to

respond to complaints).

       The complaint does not allege that Patel personally committed the discriminatory and

harassing acts, so the issue before the Court is whether it states a plausible claim that Patel

“aided, abetted, invited, compelled or coerced” the discriminatory behavior.           D.C. Code

§ 2-1402.62.   But the complaint is devoid of any allegations from which the Court could

plausibly infer that Patel knew about and failed to stop the discrimination. With respect to Patel,

the complaint alleges simply:

       “On information and belief, defendant Mukesh Patel . . . was Plaintiff’s employer.”
       Compl. ¶ 5.

       “Defendants knew or should have known about the unlawful sexual harassment of Blair
       but failed to take appropriate remedial action to prevent or stop it from happening.” Id.
       ¶ 13.

       “Defendants were the employer of Plaintiff and/or the joint employer of Plaintiff,
       for purposes of liability under the counts asserted herein.” Id. ¶ 9.




                                                6
           These are the sorts of conclusory, formulaic statements are insufficient to state a claim

under Iqbal. 129 S. Ct. at 1949. While plaintiff claims that “defendants” – meaning Triser and

Patel – “knew or should have known about the unlawful sexual harassment,” she offers no facts

from which the Court may draw the reasonable inference that Patel in particular was on notice of

what was happening in the salon. When the allegations in a complaint are “no more than

conclusions,” they “are not entitled to the presumption of truth.”          Id. at 1950.   Although

plaintiff’s opposition to the motion to dismiss proffers additional facts, the Court may only

consider the facts set forth in the complaint when evaluating a motion to dismiss. Jo v. District

of Columbia, 582 F. Supp. 2d 51, 64 (D.D.C. 2008) (holding that “[i]t is well-established in this

district that a plaintiff cannot amend his complaint in an opposition to a defendant’s motion for

summary judgment”). Because the complaint fails to state plausible action against Patel, this

Court will dismiss the plaintiff’s claim against Patel without prejudice.

     II.          Triser’s Motion for Summary Judgment

           Triser contends that summary judgment under Rule 56(a) should be granted because

plaintiff was not subject to harassment of any kind, did not work in an intolerable environment,

and did not report the alleged harassment to the defendants. Defs.’ Mem. at 2. It is true that an

employer may not be held liable for a supervisor’s harassing behavior if the employer is able to

establishes that “it had adopted policies and implemented measures such that the victimized

employee either knew or should have known that the employer did not tolerate such conduct and

that she could report it to the employer without fear of adverse consequences.” Hunter v. Ark

Rests. Corp., 3 F. Supp. 2d 9, 14 (D.D.C. 1998), quoting Gary v. Long, 59 F.3d 1391, 1398 (D.C.

Cir. 1995). But this is an affirmative defense, which “depends on ‘the ability of the employer to

establish that its employees could not reasonably have failed to know of those measures and that



                                                   7
its grievance procedures were clearly calculated to encourage victims of harassment to come

forward.’” Id., quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986) (some

internal quotations omitted).

        In support of its motion, Triser has proffered a declaration in which Patel avers that

plaintiff was provided with an employee handbook, which stated that discrimination was not

tolerated and contained the telephone numbers of Morrison and Patel, which she could use to call

in the event she was a target of discriminatory behavior. Patel Decl. ¶¶ 5–6. Triser argues that

plaintiff knew that she could call Patel to report the harassment but failed to do so. Defs.’ Mem.

at 7.

        In opposition to defendants’ motion, plaintiff submitted her own affidavit in which she

asserts: “I did not receive a handbook, I have never seen a handbook and I do not know of any

other employee who received one.” King Decl. ¶ 11. She also states that she “never received

any instructions concerning procedural steps to follow in the event an employee experiences

harassment in the workplace.” Id. Whether a handbook existed and, if it did, whether plaintiff

ever received it, are questions of material fact. Hunter, 3 F. Supp. 2d at 14 (holding that issue of

material fact existed as to whether defendants took appropriate remedial action and “mere

existence” of an anti-discrimination policy “does not eliminate an employer’s chargeability”).

Since plaintiff, the non-moving party, has “designate[d] specific facts showing there is a genuine

issue for trial,” Celotex Corp., (internal quotations omitted), 477 U.S. at 324, summary judgment

is not appropriate at this juncture, and Triser’s motion will be denied.




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                                       CONCLUSION

        For the foregoing reasons, the Court will grant the motion to dismiss without prejudice

with respect to Patel and will deny summary judgment with respect to Triser. A separate order

will issue.




                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: October 3, 2011




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