                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

OSMEL MAESTRE,                  :
                                :
     Plaintiff,                 :    Civil Action No.:                           18-02494
                                :
     v.                         :    Re Document No.:                            10
                                :
SDH SERVICES EAST, LLC,         :
                                :
     Defendant.                 :
                        MEMORANDUM OPINION

                  GRANTING DEFENDANT’S MOTION TO PARTIALLY DISMISS

                                      I. INTRODUCTION

       In this employment discrimination suit, Osmel Maestre alleges that his employer, SDH

Services East, LLC (“SDH”), violated Title VII of the Civil Rights Act of 1964 (“Title VII”), as

amended, 42 U.S.C. § 2000e, et seq. Am. Compl. ¶¶ 1–2, ECF No. 9. Specifically, Mr. Maestre

contends that Defendant subjected him to disparate treatment based on race, id. ¶¶ 39–49, created

a discriminatorily hostile work environment based on his national origin, id. ¶¶ 50–59, and then

retaliated against him when he reported harassment and discriminatory conduct based on national

origin, id. ¶¶ 60–74. Defendant now moves under Federal Rule of Civil Procedure 12(b)(6) to

dismiss Plaintiff’s hostile work environment and reprisal claims. 1

       For the reasons set forth below, the Court finds that Plaintiff has failed to make out a

plausible claim for relief pursuant to either his hostile work environment claim or his retaliation

claim. This Court therefore grants Defendant’s motion to partially dismiss his complaint.



       1
         Defendant does not move to dismiss count one of Plaintiff’s complaint, which alleges
disparate treatment on the basis of Plaintiff’s protected class status (Hispanic/Cuban). Am.
Compl. ¶¶ 39–49.
                                II. FACTUAL BACKGROUND 2

       On August 22, 2016, Mr. Maestre was hired as a Senior Manager for SDH. See Am.

Compl. ¶ 14. He identifies as a Cuban-American and as Hispanic. Id. ¶ 6. Mr. Maestre asserts

that Defendant discriminated against him over the following year because of his national origin

and his ethnicity. See generally id. More specifically, Mr. Maestre alleges that Defendant, as an

organization, systematically discriminated against Mr. Maestre and other similarly situated

employees by giving non-white employees inferior job assignments. See id. ¶¶ 17–25, 28.

Plaintiff avers that he was routinely asked to perform undesirable work that was the

responsibility of other white employees. Id. ¶¶ 20–25, 28. For example, “Plaintiff was expected

to be on call and immediately respond to building issues that came up, for periods of seven to

fourteen days straight and for at least seven days straight every three to four weeks.” Id. ¶ 28.

He was also “forced to be the Manager on Duty; [given] call center responsibilities; serv[ed] as

the ergonomics contractor; . . . and [was] assigned work on weekends.” Id. ¶ 21. In addition to

these assignments, Mr. Maestre states that he and other similarly situated employees were given

fewer training opportunities than white employees, id. ¶ 18, and that a less qualified white

candidate was promoted in lieu of Plaintiff, id. ¶ 19.

       Mr. Maestre contends that his supervisor, Ms. Julie Policastro, exacerbated this

environment of discriminatory treatment by mistreating him in front of other employees. Id. ¶¶

26–34. Mr. Maestre states that Ms. Policastro would publicly “belittle, harass, and intimidate”


       2
         Because Defendant’s motion to dismiss concerns only Mr. Maestre’s hostile work
environment and retaliation claims, see generally Def.’s Mot., this Court limits its discussion of
the factual background to what is applicable to those claims.
        At the motion to dismiss stage, the Court views the evidence in the light most favorable
to Plaintiff. See United States v. Philip Morris Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000)
(“At the motion to dismiss stage, the only relevant factual allegations are the plaintiffs’, and they
must be presumed to be true.”).


                                                  2
him multiple times a day “by pointing her finger” at him and yelling “Come in here!” Id. ¶ 26;

see also id. ¶ 32 (stating that Ms. Policastro would call Plaintiff into public areas and “intimidate

and taunt” him “with facial expressions while . . . pointing her finger directly at Plaintiff”); id. ¶

33 (describing “incidents and harassment” as occurring “twice or more a day”). Moreover, when

Mr. Maestre attempted to speak with Ms. Policastro regarding the additional work assigned to

him, she “would yell and look at Plaintiff with disgust” and scream “[h]ere we go again” in front

of other employees. Id. ¶ 29; see also id. ¶ 34 (stating that Ms. Policastro “reprimand[ed]

Plaintiff in front of other[s]” for his failure to perform the extra duties assigned to him).

       Mr. Maestre also describes two problematic meetings with Ms. Policastro. First, during a

meeting in late May 2017, Ms. Policastro informed him that “anyone who defends their

employees will no longer be here” and “threatened” to terminate Plaintiff if he did not terminate

the African-American managers whom he supervised. Id. ¶ 30. Thereafter, Mr. Maestre states

that Ms. Policastro “subjected him to consistent verbal abuse on a daily basis” and asked him

about a “plan” for terminating Plaintiff’s minority supervisees. Id. ¶ 31. The second incident

occurred during a different meeting with Ms. Policastro, Mr. Maestre, and another employee,

Charon Jackson. 3 Id. ¶ 33. On this occasion, Ms. Policastro responded to Mr. Maestre’s

recommendations about ways to improve the organization’s Key Performance Indicators by

telling Mr. Maestro to “forget about it” while “smirk[ing] and ma[king] a face with disgust.” Id.

       In addition, Mr. Maestre asserts that Ms. Policastro repeatedly threatened to fire both him

and his wife, who also works for Defendant, “unless they compl[ied] [with] her demands.” Pl.’s

Opp’n Mot. Dismiss 4 (“Pl.’s Opp’n”), ECF No. 11; 4 Am. Compl. ¶¶ 27, 30–31, 33. During one


       3
           Plaintiff does not identify the date of this meeting.
       4
        Because Plaintiff’s opposition is not paginated, the Court refers to the ECF page
numbers.


                                                    3
interaction, Ms. Policastro told other employees that Defendant’s employment of Mr. Maestre’s

wife “was not working out.” Id. ¶ 27. More generally, Mr. Maestre states that Ms. Policastro

“talk[ed] negatively” about his wife, an SDH employee, with other individuals at the company.

Id.

       In response to most of these incidents, Mr. Maestre reported Ms. Policastro’s conduct to

Defendant’s Human Resources Department (“HR Department”). 5 Id. ¶¶ 32, 64. Although the

HR Department responded by saying that it would escalate his complaints, id. ¶ 32, it failed to

take any action to “prevent or correct further discrimination and harassment,” id. ¶ 35.

       After lodging this complaint with the HR Department, Mr. Maestre alleges that Ms.

Policastro retaliated against him. Id. ¶¶ 36–38, 60–74. He avers that, in retaliation for his

protected activity, his work responsibilities were changed and he was given “routine tasks” that

took his attention away from “critical activities under his job function.” Id. ¶ 36. He also states

that Ms. Policastro altered his responsibilities by “transferr[ing] work from other Directors to

Plaintiff” and by adjusting “Plaintiff’s work schedule to alleviate her responsibility to be on

call.” Id. ¶ 38. Mr. Maestre further asserts that Ms. Policastro “micromanaged” him, id.,

scrutinized his “work, his area, and his direct reports,” id., and “excluded [him from] meetings

with his staff,” id. ¶ 36. Finally, Mr. Maestre claims that Ms. Policastro retaliated by threatening

to “blame” Plaintiff’s wife if a contract was cancelled and by otherwise “treat[ing] Plaintiff’s

wife negatively” in front of his coworkers. Id. ¶ 37.




       5
       Mr. Maestre states that he reported “most” of these incidents to Defendant’s HR
Department, Am. Compl. ¶ 28, but does not specify which incidents were or were not reported.


                                                 4
       On July 14, 2017, Mr. Maestre filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”) alleging that Defendant violated Title VII. 6 Id. ¶ 8 (citing EEOC

Charge No. 517-2017-01748). Mr. Maestre states that his EEOC complaint included allegations

that he was subjected to “discrimination based upon national origin and retaliation for filing a

complaint of national origin [discrimination].” Id. ¶ 10. One year later, the EEOC dismissed

Mr. Maestre’s complaint, and the agency sent him a right-to-sue letter on July 14, 2017. 7 Id. ¶

11.

       On October 29, 2018, Mr. Maestre filed a complaint against SDH alleging race

discrimination, creation of a discriminatory hostile work environment, and retaliation, see

generally Compl., ECF No. 1, which he subsequently amended, see Am. Compl. 8 In response,




       6
        Plaintiff’s administrative complaint to the U.S. Equal Employment Opportunity
Commission (“EEOC”) alleged violations of both Title VII and the Rehabilitation Act. Am.
Compl. ¶ 8. Mr. Maestre’s complaint before this Court raises only Title VII claims. See id. ¶ 2.
       7
          Before an individual can file a Title VII lawsuit, he must exhaust the administrative
remedies available through the EEOC. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
1995). Mr. Maestre claims to have met this requirement for his hostile work environment and
retaliation claims, see Compl. at ¶¶ 51, 63, and Defendant does not argue anything to the
contrary, see generally Def.’s Mot.; Def.’s Reply in Support of Mot. Part. Dismiss (“Def.’s
Reply”), ECF No. 13. The Supreme Court has held that Title VII’s administrative exhaustion
requirement is not jurisdictional and is only to be considered where properly raised by a party.
See Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019). Here, because Defendant has not raised the
issue of administrative exhaustion, this Court will not address it.
       8
          The Court notes that Mr. Maestre characterizes his protected status in different ways at
different points. For instance, Plaintiff’s amended complaint alleges harassment due to his
national origin, see Am. Compl. ¶ 57, yet his opposition to Defendant’s motion to partially
dismiss states that the same incidents occurred because of his ethnicity, Pl.’s Opp’n 4; see also
Def.’s Mem. P. & A. in Support of Mot. Part. Dismiss (“Def.’s Mem.”) 7, ECF No. 10-1
(referring to Plaintiff’s claims as alleging “race and/or national origin discrimination”). This is
not a case where the distinction between race, ethnicity, and national origin-based discrimination
shapes the analysis (e.g., an American plaintiff alleges that her Canadian supervisor subjected
her to a hostile work environment, or a Hispanic, Cuban individual alleges that her Panamanian
supervisor favored Hispanic, Panamanian coworkers). Accordingly, this Court will consider
Plaintiff’s race, ethnicity, and national origin claims jointly in assessing his claims. For the sake


                                                  5
Defendant moved to dismiss two of Plaintiff’s claims (for hostile work environment and

retaliation) under Federal Rule of Civil Procedure 12(b)(6). See Def.’s Mot. 1. For the reasons

set forth below, the Court grants Defendant’s partial motion to dismiss.

                                    III. LEGAL STANDARD 9

       To pursue a claim in federal court, a plaintiff must provide a “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

statement must contain “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). If a plaintiff fails to provide such a statement, then the defendant can move to dismiss

the complaint under Federal Rule of Civil Procedure 12(b)(6).

       In evaluating a motion to dismiss, a court “must treat the complaint’s factual allegations

as true and must grant [the] plaintiff the benefit of all inferences that can be derived from the

facts alleged.” W. Org. of Res. Councils v. Zinke, 892 F.3d 1234, 1240 (D.C. Cir. 2018) (quoting

Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)). If the complaint lacks



of clarity, the Court refers to Plaintiff’s complaint as alleging discrimination based on national
origin and ethnicity, which he most consistently identifies as the basis for his protected status.
       9
          As discussed below, the Court evaluates the instant motion as a Rule 12(b)(6) motion to
dismiss for failure to state a claim. Although Mr. Maestre contends that Defendant should have
moved under Rule 12(e) to request a more definite statement instead of moving under Rule
12(b)(6) to dismiss his claims, see Pl.’s Opp’n 6, he misapprehends the Rule 12(e) legal
standard. Rule 12(e) allows a party to move for a more definite statement when the pleading is
“so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P.
12(e); see also Johnson v. Metro. Direct Prop. & Cas. Ins. Co., 2018 U.S. Dist. LEXIS 176318
at *6 (D.D.C. 2018) (“Normally, . . . the basis for requiring a more definite statement under Rule
12(e) is unintelligibility, not mere lack of detail.”) (quoting Thorp v. District of Columbia, 309
F.R.D. 88, 90 (D.D.C. 2015)). On Mr. Maestre’s own construal of his pleading, however, it is
not unintelligible; to the contrary, he asserts that “Plaintiff sufficiently gives notice to Defendant
that he is claiming a hostile work environment and retaliation” theory of relief. Pl.’s Opp’n 6.
Thus, Rule 12(e) is inapposite, and, moreover, Plaintiff cites no authority to support his
proposition that Defendant’s Rule 12(b)(6) motion is improper.


                                                  6
“sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face,’” then the

motion to dismiss should be granted. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A plaintiff’s claim is plausible if the factual allegations, taken as

true, are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at

555–56. That said, a court need not accept as true “a legal conclusion couched as a factual

allegation.” Iqbal, 556 U.S. at 678. Moreover, “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements” are insufficient to withstand a motion to

dismiss. Id.

        With respect to Plaintiff’s Title VII claims, a plaintiff is not required to plead all the

elements of a prima facie case to survive a Rule 12(b)(6) motion to dismiss. See Brady v. Office

of the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (citing Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 510–11 (2002)). Rather, at this stage, Plaintiff only needs to allege sufficient facts

to make his claims of retaliation and discrimination “plausible.” Harris v. D.C. Water & Sewer

Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (citations omitted).

                                            IV. ANALYSIS

                                   A. Hostile Work Environment

        Mr. Maestre contends that his supervisor’s regular treatment of him subjected Plaintiff to

a discriminatorily hostile work environment. See Am. Compl. ¶¶ 50–59. As described above,

Plaintiff states that Hispanic employees like Mr. Maestre were regularly assigned more work,

denied sufficient training, and passed over in promotions while white employees advanced. Id.

¶¶ 17–25. In support of his claim, Mr. Maestre also describes a troubled work environment in

which his supervisor regularly publicly ridiculed him, id. ¶¶ 6, 26–34, 57; pointed her finger and

yelled at Plaintiff in front of other employees, id. ¶¶ 26, 32; disparaged him at least two times a




                                                     7
day, id. ¶¶ 26, 33; subjected him to a “barrage of offensive” comments, id. ¶ 56; made faces of

“disgust” towards Plaintiff on multiple occasions, id. ¶¶ 29, 34; warned him that he needed to

terminate the minority employees whom he supervised and threatened his own employment if he

did not do so, id. ¶¶ 30, 31; and publicly spoke ill of Plaintiff’s wife (another employee of

Defendant) on other occasions, id. ¶¶ 27, 30–31, 33.

       Defendant contests the legal viability of Plaintiff’s claims on two grounds. First,

Defendant asserts that Mr. Maestre cannot satisfy the hostile work environment legal standard

because “there are no allegations that[,] if proven true[,] would suggest that [Ms.] Policastro

engaged in the complained of behavior because [Mr.] Maestre is Hispanic.” Def.’s Mot. 5

(citations omitted) (emphasis in original). Second, Defendant argues that even if Mr. Maestre’s

allegations are true, they are inadequate to support a hostile work environment claim. See Def.’s

Mot. 4–7. Specifically, Defendant argues that Mr. Maestre has failed to allege facts that

demonstrate that he experienced harassment that is actionably severe or pervasive. Id. at 6. For

the following reasons, the Court agrees that Plaintiff has not made out a plausible claim for

relief, but will grant Plaintiff leave to file a further amended complaint to augment his factual

allegations.

       Title VII prohibits employers from “creat[ing] or condon[ing] a discriminatorily hostile

or abusive [work] environment.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 188–89

(D.D.C. 2012). These protections do not set out a “general civility code for the American

workplace.” Casey v. Mabus, 878 F. Supp. 2d 175, 189 (D.D.C. 2012) (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Rather, under Title VII’s “demanding

legal standard,” Tucker v. Johnson, 211 F. Supp. 3d 95, 101 (D.D.C. 2016) (quoting Bergbauer

v. Mabus, 934 F. Supp. 2d 55, 77 n.20 (D.D.C. 2013)), such an abusive environment exists only




                                                 8
if “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment.’” Harris,

510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Harassment

is severe or pervasive if it creates “an environment that a reasonable person would find hostile or

abusive” and that the victim in fact subjectively perceives as abusive. Id.; see also Casey, 878 F.

Supp. 2d at 188 (quoting Harris, 510 U.S. at 21). “There is no ‘mathematically precise test,’ for

what makes a workplace ‘so objectively offensive as to alter the ‘conditions’ of the victim’s

employment.’” Sierra v. Hayden, No. CV 16-1804 (RC), 2019 WL 3802937, at *12 (D.D.C.

Aug. 13, 2019) (first quoting Harris, 510 U.S. at 22, then quoting Oncale, 523 U.S. at 81). To

evaluate whether the conduct at issue rises to this level, a court is to assess the totality of the

circumstances and “consider the frequency of the harassing conduct, its severity, whether it is

physically threatening or humiliating, and whether it unreasonably interferes with an employee’s

work performance.” Stewart v. Evans, 275 F.3d 1126, 1134–35 (D.C. Cir. 2002) (citing Harris,

510 U.S. at 21–23); see also Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008).

        Furthermore, to make out an actionable hostile work environment claim, the plaintiff

must establish that the alleged “harassment occurred because of . . . [his] protected status.”

Peters v. District of Columbia, 873 F. Supp. 2d 158, 189 (D.D.C. 2012) (citation omitted); see

also Dorns v. Geithner, 692 F. Supp. 2d 119, 135–36 (D.D.C. 2010) (internal citations omitted).

This showing requires a “linkage between the hostile behavior and the plaintiff’s membership in

a protected class.” Douglas-Slade v. LaHood, 793 F. Supp. 2d 82, 101 (D.D.C. 2011) (quoting

Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009)); see also Baloch, 550 F.3d at 1201. A

court is to apply the same totality of the circumstances analysis to determine whether the

requisite linkage exists. Sierra, 2019 WL 3802937, at *12 (citing Baloch, 550 F.3d at 1201). At




                                                   9
the motion to dismiss stage, “[a]lthough a plaintiff need not plead a prima facie case of hostile

work environment in the complaint, the ‘alleged facts must support such a claim.’” McKeithan

v. Boarman, 803 F. Supp. 2d 63, 69 (D.D.C. 2011), aff’d in part, No. 11-5247, 2012 WL

1450565 (D.C. Cir. Apr. 12, 2012), and aff’d sub nom. McKeithan v. Vance-Cooks, 498 F. App’x

47 (D.C. Cir. 2013) (quoting Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 90–91 & n.6

(D.D.C. 2010)); see also Ervin v. Howard Univ., 562 F. Supp. 2d 58, 70 (D.D.C. 2008).

       In this case, Defendant argues that Mr. Maestre’s complaint should be dismissed because

Plaintiff fails to connect the allegedly discriminatory conduct to his national origin or ethnicity.

See Def.’s Mem. 5; Def.’s Reply 1, 3–4. Plaintiff disputes this characterization on the grounds

that “he was held responsible for the work of other similarly situated Directors of a different race

such as Michael Jordan and Todd Murphy, both Caucasian males.” Pl.’s Opp’n 4 (citing Am.

Compl. ¶ 34). Plaintiff’s complaint does not articulate any other direct linkages between the

facts alleged in support of his hostile work environment claim and his protected attributes. Nor

does Plaintiff’s opposition explain any such linkage. The only time that ethnicity or national

origin are mentioned with respect to this claim is Plaintiff’s statement that he was publicly

reprimanded “for work that was not Plaintiff’s responsibility nor job description and [which] was

the responsibility of other similarly Directors of a different race,” namely two Caucasian

males. 10 Am. Compl. ¶ 34. For the reasons set forth below, Defendant is correct: this stand-




       10
           Mr. Maestre also references race with respect to Ms. Policastro’s alleged directive to
terminate the African-American employees whom Plaintiff supervised. Am. Compl. ¶¶ 29–30.
However, because this reference does not involve Mr. Maestre’s race/ethnicity, the Court does
not consider it applicable with respect to this aspect of the analysis, which assesses whether
Plaintiff has asserted factual allegations that plausibly connect Defendant’s conduct to Plaintiff’s
own status in a protected class.


                                                 10
alone “allegation is insufficient to raise an inference” that the overall pattern of alleged

discriminatory conduct occurred “because [Mr.] Maestre is Hispanic.” Def.’s Reply 3.

       Title VII’s protections do not cover every kind of workplace dispute. See Casey, 878 F.

Supp. 2d at 189 (quoting Oncale, 523 U.S. at 80) (emphasizing that Title VII does not set out a

“general civility code for the American workplace”). To filter out workplace disputes that are

unrelated to a protected category, “allegations of discriminatory acts that are unrelated to the

plaintiff’s protected status cannot be used to support a hostile work environment claim.”

Martinez v. Puerto Rico Fed. Affairs Admin., 813 F. Supp. 2d 84, 94–95 (D.D.C. 2011) (quoting

Nurriddin v. Goldin, 382 F. Supp.2 d 79, 108 (D.D.C. 2005)); see also Na’im, 626 F. Supp. 2d at

73 (“[H]ostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile

work environment unless there exists some linkage between the hostile behavior and the

plaintiff’s membership in a protected class.”). To be sure, the relationship between the allegedly

discriminatory conduct and the plaintiff’s status may be subtle. For instance, this Circuit has

held that evidence showing mockery of an employee’s name and accent could permit a jury to

infer national origin discrimination. Mayorga v. Merdon, 928 F.3d 84, 93 (D.C. Cir. 2019). 11

But whether the factual allegations involve direct evidence or rely on implications, the bottom

line is that there must be some connection drawn.

       Here, however, the allegations made do not include either direct or indirect non-

conclusory factual allegations that plausibly indicate a causal relationship between Ms.

Policastro’s conduct and Mr. Maestre’s national origin or ethnicity. There is simply not enough

in the facts provided to establish how Ms. Policastro’s harshness towards Plaintiff reflected these


       11
          Although Mayorga involved a non-promotion claim, the Court reads the case to advise
more generally that factors such as mockery of an accent can provide indirect evidence of
national origin discrimination.


                                                  11
protected attributes. Mr. Maestre may intend to suggest to the Court that his status as

Cuban/Hispanic is, itself, enough to give rise to a cause of action. But the bare fact that an

individual belongs to a protected category, coupled with a single factual allegation concerning

that category, is not enough to plausibly suggest the required connection. See Hunter v. D.C.,

797 F. Supp. 2d 86, 93–94 (D.D.C. 2011), aff’d sub nom. Hunter v. D.C. Gov’t, No. 13-7003,

2013 WL 5610262 (D.C. Cir. Sept. 27, 2013) (internal citations omitted) (dismissing hostile

work environment claim where plaintiff left the court “to infer that each act was discriminatory”

based upon his race and gender and pled only one fact that connected his membership in a

protected class to the alleged discriminatory acts). Without additional facts to connect these

dots, which Plaintiff does not supply, Mr. Maestre has not made out a plausible claim that the

contested conduct reflects discrimination on the basis of national origin or ethnicity, as opposed

to harsh management practices. 12 See Stewart, 275 F.3d at 1133 (upholding district court’s


       12
          Mr. Maestre’s complaint also includes conclusory allegations concerning preferential
treatment of similarly-situated Caucasian employees, see, e.g., Am. Compl. ¶ 18 (“[A]ll
necessary training, staff, resources, and the opportunity for additional certifications” that were
“needed to complete essential job functions . . . were exclusively granted to similarly situated
Caucasian employees.”); id. at ¶ 19 (“Despite Maestre being more qualified, each [senior-level]
position was occupied by a less qualified Caucasian candidate.”); id. at ¶ 20 (“Mr. Maestre and
similarly situated employees also were more than likely to receive a heavier workload than their
Caucasian counterparts.”). As discussed above, Plaintiff makes this allegation in passing in his
hostile work environment claim. See id. at ¶ 34. But these contentions are primarily advanced in
support of Plaintiff’s race discrimination claim. See id. ¶¶ 18–20, 39–49. To succeed on a Title
VII race discrimination claim, the claimant-employee must establish that he and the employee of
a different race who allegedly received preferential treatment were “similarly situated in all
relevant respects.” Barbour v. Browner, 181 F.3d 1342, 1354 (D.C. Cir. 1999) (Tatel, J.,
concurring in part and dissenting in part) (emphasis in original); see also Royall v. Nat’l Ass’n of
Letter Carriers, AFL-CIO, 548 F.3d 137, 145 (D.C. Cir. 2008) (concluding that claimant failed
to show that “all of the relevant aspects of [his] employment were nearly identical to those of” an
employee of a different race (quoting Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d
1507, 1514 (D.C. Cir. 1995) (internal quotation marks and citation omitted))); Taylor v. Small,
350 F.3d 1286, 1294 (D.C. Cir. 2003) (“[I]n order to make out a prima facie case of


                                                 12
dismissal of suit where there was “no basis upon which to infer” that supervisor’s anger

concerning employee’s workplace conduct “was motivated by” the employee’s membership in a

protected class). And without providing more facts to support the required causation, even

taking all factual allegations in Plaintiff’s complaint to be true, Mr. Maestre has not pled

“enough to raise a right to relief above the speculative level.” 13 Twombly, 550 U.S. at 555–56.

Thus, he cannot plausibly make out a hostile work environment theory of relief on the facts

before the Court. See McKeithan, 803 F. Supp. 2d at 69. The Court will, however, grant

Plaintiff leave to file an amended complaint to address these deficiencies. 14

                                          B. Retaliation

       Mr. Maestre also contends that Defendant violated Title VII by retaliating against him for

alleging workplace discrimination to Defendant’s HR Department. See Am. Compl. ¶¶ 35–38,

60–74. Mr. Maestre asserts that, after he raised his complaint of discrimination with the HR

Department, Ms. Policastro retaliated against him by micromanaging his performance, changing



discriminatory refusal to promote, . . . the plaintiff must show that . . . ‘other employees of
similar qualifications’” were treated preferentially “at the time the plaintiff's request for
promotion was denied.” (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981))).
Because Defendant has not moved to dismiss Plaintiff’s race discrimination claim, the Court
does not presently consider whether Mr. Maestre has made out a claim for relief, including
whether he is an apt comparator to the employees who allegedly received preferential treatment,
under this theory.
       13
          As Defendant notes, Plaintiff’s argument that he more than cleared the low bar
required at the motion to dismiss stage, see Pl.’s Opp’n 3–4, relies on a now-outdated legal
standard, see Def.’s Reply 2 n.2. Under controlling precedent, Plaintiff is incorrect in
contending that it is improper to dismiss the suit “unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.” Pl.’s Opp’n 3
(quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957)).
       14
           Because the Court reaches this conclusion, it does not consider whether the alleged
conduct is adequately severe or pervasive to survive a motion to dismiss. But, to the extent
Plaintiff elects to further amend his complaint, it may be wise to address this issue as well.


                                                 13
his work assignments, scheduling him for different shifts, and excluding him from meetings with

his staff, as well as by treating Plaintiff’s wife “negatively” in front of other staff and threatening

to “blame” his wife if Defendant lost a contract. Id. at ¶¶ 36–38. Taken together, Mr. Maestre

contends these actions have negatively impacted his employment and have “created a climate of

fear” that “chill[s] . . . other employees’ willingness to engage in protected activity.” Id. at ¶¶

66, 69–70. Defendant retorts that Mr. Maestre’s pleading fails to make out a claim of retaliation.

See Def.’s Mem. 7–8. Defendant again attacks the causation element of Plaintiff’s claim and

argues that Mr. Maestre has failed to allege facts that suggest that Ms. Policastro knew of his

reports to the HR Department and “that the adverse action occurred soon thereafter.” Id. at 7

(quoting McNair v. District of Columbia, 213 F. Supp. 3d 81, 89 (D.D.C. 2016)). Without more

concrete factual allegations concerning the relevant timeline, Defendant contends that Mr.

Maestre’s claim of retaliation is insufficient and should be dismissed. Id. at 7–8. Although it is

a close question, for the reasons set forth below, Defendant has the better argument on the

pleadings presently before the Court.

       Title VII forbids retaliating against an employee because he reported or otherwise

opposed any discriminatory employment practice. See Allen v. Johnson, 795 F.3d 34, 38 (D.C.

Cir. 2015) (citing 42 U.S.C. § 2000e-3(a)). To establish a claim of “unlawful retaliation, a

plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the

employer took a materially adverse action against him; and (3) that the employer took the action

‘because’ the employee opposed the practice.” Harris, 791 F.3d at 68 (quoting McGrath v.

Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012)) (citation omitted). However, “at the motion-to-

dismiss stage, a plaintiff does not need to prove a prima facie case of [retaliation].” McNair, 213

F. Supp. 3d at 86 (citing Swierkiewicz, 534 U.S. at 510–12; Twombly, 550 U.S. at 569–70); see




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also Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014); Brady, 520 F.3d at 493. The sole

question for a district court presented with a motion to dismiss a retaliation claim under Title VII

“is whether [the plaintiff has] alleged facts that, taken as true, render his claim of retaliation

plausible.” Harris, 791 F.3d at 70 (citing Twombly, 550 U.S. at 556). Because the only element

of Mr. Maestre’s retaliation claim that Defendant contests is causation, the Court focuses on this

aspect of Plaintiff’s complaint.

        At the motion to dismiss stage of litigation, “the hurdle of alleging a causal link is not a

high one.” Cavalier v. Catholic Univ. of Am., 306 F. Supp. 3d 9, 38 (D.D.C. 2018) (citing Jones

v. Bernanke, 685 F. Supp. 2d 31, 40 (D.D.C. 2010); Winston v. Clough, 712 F. Supp. 2d 1, 11

(D.D.C. 2010)). For instance, a plaintiff can rely on factors such as temporal proximity or “other

factual allegations that, construed in the light most favorable to the plaintiff, would ‘plausibly’

establish this element of the claim.” Id. (quoting Twombly, 550 U.S. at 570) (citing Hamilton v.

Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012); Woodruff v. Peters, 482 F.3d 521, 529 (D.C.

Cir. 2007); Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003); Howard R.L.

Cook & Tommy Shaw Found. ex rel. Black Emps. of Library of Cong., Inc. v. Billington, 737

F.3d 767, 772 (D.C. Cir. 2013)). However, where a plaintiff relies solely on temporal proximity

“between an employer’s knowledge of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case[,] . . . the temporal proximity must

be ‘very close.’” Jones v. D.C. Water & Sewer Auth., 922 F. Supp. 2d 37, 42 (D.D.C. 2013)

(quoting Clark Cnty. Sch. Dist. v. Breeden (Clark Cnty.), 532 U.S. 268, 273 (2001)); see also

Singletary, 351 F.3d at 525 (“[T]his circuit has held that a close temporal relationship may alone

establish the required causal connection.”).




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       Here, Mr. Maestre’s retaliation claim rests on a causal chain wherein he “engaged in a

protected activity by complaining to Human Resources about race discrimination,” and then “his

supervisor increased scrutiny on his work product and made him work shifts outside of his job

duties.” Pl.’s Opp’n 5 (citing Am. Compl. ¶¶ 35–36, 38). Defendant contends that this claim of

retaliation is not plausible because Plaintiff fails to “allege even a rough timeline of events” that

could support an inference of causation and thereby sustain a plausible claim for relief. Def.’s

Mem. 8. The Court agrees. Even giving Mr. Maestre’s pleadings the generous read they are due

at this stage of litigation, Plaintiff’s complaint appears to rely exclusively on temporal proximity

to establish causation. Apart from his assertion that “Ms. Policastro increased scrutiny” on

Plaintiff and “retaliated by changing Plaintiff’s work schedule” after Mr. Maestre complained to

the HR Department, Am. Compl. ¶ 38, Plaintiff does not advance any factual allegations in

support of his retaliation claim. Although, taking Plaintiff’s factual allegations to be true, Mr.

Maestre has established that the alleged reprisal occurred after his complaint to the HR

Department, see id., what he fails to do is to say anything about the dates of the relevant events

or even to provide the basis for any plausible inference that Ms. Policastro was aware of his

protected activity. The amended complaint states only that all the alleged conduct occurred

sometime over the course of a year. See Am. Compl. ¶¶ 17–18, 32, 35–38. Without more,

however, the Court has no basis from which to infer that the alleged sequence of events was

“very close,” Clark Cnty., 532 U.S. at 273, and the Court can do no more than speculate about

whether or not Plaintiff’s protected activity caused the challenged conduct. Accordingly, even

though the motion to dismiss stage does not require Plaintiff to assert facts concerning the

causation aspect of the claim that would suffice to make out a prima facie case, Plaintiff’s factual

allegations, taken as true, are not “enough to raise a right to relief above the speculative level.”




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Twombly, 550 U.S. at 555. Thus, his pleading does not survive Defendant’s motion to dismiss.

That said, the Court grants Plaintiff leave to file an amended complaint to address the

deficiencies in his retaliation claim identified here.

                                        V. CONCLUSION

       For the foregoing reasons, Defendant’s motion to partially dismiss Plaintiff’s retaliation

and hostile work environment claims is granted. Plaintiff may, within thirty days, file an

amended complaint. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: December 20, 2019                                          RUDOLPH CONTRERAS
                                                                  United States District Judge




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