UNITED STATES DISTRICT COURT F I L E §
FOR THE DISTRICT OF COLUMBIA

AUG 2 5 2014

) Clerk, U.S. District & Bankruptcy

WAYNE A. WILSON ) Courts for the District of Columbia
)

Plaintiff, ) Civil No. 13-0232 (RCL)
)
v. )
)
RAYMOND E. MABUS, JR., et al., )
)
Defendants. )
)
MEMORANDUM OPINION

Before the Court is the defendant’s Motion to Dismiss or, in the Altemative, for
Summary Judgment [l0] on plaintiff Wayne Wilson’s complaint [l]. Wilson filed a complaint
alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § ZOOOe, et seq., ("Title VII"). Upon consideration of the
defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgrnent, the plaintiffs
Opposition thereto [16], and the defendant’s Reply [27], the Court will GRANT the defendant’s
Motion for the reasons stated below.

I. BACKGROUND

The relevant facts are as follows: plaintiff, Wayne A. Wilson, is an African American
male employed since 2002 by the United States Navy as a police officer assigned to the Naval
District of Washington ("NDW") in Washington, D.C. According to Mr. Wilson, on November
27, 2009, after drinking, plaintiff fired a gun multiple times after he arrived at his home in Prince

George’s County Maryland and observed unknown males with his daughters Compl. 11 ll. He

believed the young men were trespassing on his property.l Id. Plaintiff was arrested by the
Prince George’s County Police and charged with criminal reckless endangerment and second
degree assault. Id. 11 12.

As a result of the November 27, 2009 incident, defendant placed plaintiff on indefinite
suspension without pay, effective March 12, 2010, pending the disposition of the criminal
proceedings against plaintiff, or until the completion of an administrative action. Ia’. 1[ 14; Def.’s
Mot. to Dismiss, Ex. 5 (February 16, 2010 Proposed Suspension Letter). On June 15, 2010,
plaintiff was acquitted of the criminal charges against him. Compl. 11 15. Subsequently, on June
23, 2010, defendant notified plaintiff that his indefinite suspension was terminated and plaintiff
could return to active duty effective June 25, 20l0. Ia'. ‘|l l6.

Plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB") on July 5,
2010, challenging his suspension without pay and his reinstatement without back pay and
without restoration to his pre-suspension shift.z Def’s Mot. to Dismiss, Ex. 8 (July 5, 2010
MSPB Appeal). The MSPB dismissed plaintiffs appeal because it was untimely filed. Id., Ex. 9
(August 18, 2010 Initial MSPB Decision). Plaintiff later contacted an EEO counselor on July 6,
2010, and, on September 4, 20l0, he filed a formal complaint of discrimination with the NDW
EEO Office challenging his suspension without pay and his reinstatement without back pay or
restoration to his preferred shift. Ia'. 11 26. Plaintiff noted in his EEO Complaint that he was
subjected to retaliation and that white officers and female officers receive preferential treatment

in shiii assignment, pay, and discipline. Def`.’s Mot. to Dismiss, Ex. 10 (September 4, 2010 EEO

l In plaintiffs Opposition to defendant’s Motion to Dismiss, plaintiff claims that as he followed the young men out
of his house, three of them began to threaten him and move aggressively toward him. Pl.’s Opp. 3, ECF No. 16
Plaintiff asserts that before he fired his gun into the ground, he told them that he was a police officer and that he was
arined, but they continued to move towards him. Id. at 3»4.

2 Plaintiff claims he was told, at the time his indefinite suspension without pay was proposed, that he would receive
all of his lost pay if he was acquitted of the charges. Id. at 4.

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Complaint). Defendant dismissed plaintiffs EEO complaint on March 16, 2011 for untimely
counselor contact and failure to state a claim of reprisal. Id., Ex. ll (March 16, 2011 EEO
Dismissal of Claims).

Plaintiff s claim of retaliation focuses on an incident on January 4, 2011 in which Officer
Cassandra Thompson observed him using his cell phone while standing post and directing traffic,
which is a violation of NDW rules.3 Compl. 11 32. As a result, defendant issued plaintiff a
proposal to suspend him for five days. Id. 1n January 2012, defendant issued plaintiff a decision
to affect the five-day suspension. Id. 1[33. Plaintiff contacted the NDW EEO office and later
filed an EEO complaint challenging the five-day suspension as unlawful retaliation.‘l la’. 11 37.

Plaintiff has filed a complaint with the United States District Court for the District of
Columbia alleging employment discrimination and retaliation under Title VII based on his race
and sex. ln response, defendant has filed a motion to dismiss plaintiffs claim of employment
discrimination, or alternatively, for summary judgment
Il. LEGAL STANDARDS

Because the Court finds that plaintiff failed to state a claim for each of the alleged acts of
discrimination and retaliation, the legal standard and analysis applied herein pertain only to
dismissal for failure to state a claim under Rule 12(b)(6)

A. Rule 12(b)(6) Dismissal

Under Rule 12(b)(6), a court may dismiss a complaint, or any portion of it, for failure to
state a claim upon which relief can be granted. FED. R. CIV. P. l2(b)(6). A court considering

such a motion to dismiss pursuant to this rule must accept all factual allegations in the complaint

3 Defendant states that plaintiff reacted aggressively when confronted about his cell phone use on site. Def.’s Mot.
to Dismiss 4. Plaintiff, however, does not provide details about his demeanor towards Officer Thomas or Lieutenant
Darryl Tucker during the on-site reprimand.

4 The EEO office did not accept for investigation plaintiff s claim that defendant retaliated against him by denying
his supervisor’s December 2010 request to change plaintiff s shifts.

3

as true, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must construe all factual
allegations in the light most favorable to the plaintiff, Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.
Cir. 2004) (internal citations omitted). To survive a motion to dismiss, the complaint must
contain enough factual allegations to "state a claim that relief is plausible on its face." Bell. Atl.
Corp., 550 U.S. at 570. A complaint is "plausible on its face" when the plaintiff "pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqba/, 556 U.S. 662, 663 (2009) (internal quotations omitted).

B. Title VII Discrimination and Retaliation

To state a claim for employment discrimination under Title VII employees must exhaust
their available administrative remedies. 42 U.S.C. § 2000e-16(c). An employee must first
"initiate contact with an EEO counselor within 45 days of the matter alleged to be discriminatory
or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R.
§ l614.105(a)(l). After the EEO investigator completes her investigation of the allegations, the
employee may demand either a hearing before an EEOC administrative judge or an immediate
final decision. 29 C.F.R. § 1614.106(e)(2); 29 C.F.R. § 1614.108(f). lf no final decision has
been issued within 180 days of the initial EEO complaint, the employee may file a complaint in
federal court. 29 C.F.R. § 1614.407. Exhaustion of administrative remedies is a prerequisite to
any civil action alleging Title VII violations.

In a civil action, to sufficiently state a claim for discrimination under Title Vll the
plaintiff must establish that: "(1) 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" based on one’s belonging to a protected class. George v. Leavitt, 407 F.3d 405,

412 (D.C. Cir. 2005) (internal quotations omitted).

III. DISCUSSION

A. Plaintiff s Suspension and Reinstatement Without Back Pay

Plaintiff contends that his reinstatement to work without receiving back pay or being
restored to his old shift constitutes discrimination based on his race and sex. He alleges in his
September 4, 2010 EEO complaint, and again in his Opposition to Defendant’s Motion to
Dismiss, that when he returned to work he learned of several white employees who had been
arrested but were not suspended without pay. He further alleges that a female officer had
assaulted a civilian while on duty and another had been arrested on domestic violence charges;
however, neither had been suspended or denied pay. Plaintiff believes these instances are
evidence of preferential treatment for white and female employees.

Importantly, there are no allegations contained in plaintiffs complaint, EEO filings, or
court filings that a white or female employee has been suspended and subsequently reinstated
with back pay. The examples plaintiff provides do not show preferential treatment to white and
female employees in similar circumstances. Plaintiffs examples allege employees’ criminal
actions and job-related punishments, but they are not situations in which an employee has been
suspended without pay and reinstated without back pay. As a result, no factual allegations exist
to suggest that the adverse employment action creates an inference of discrimination based on
race or sex. Therefore, the Court must dismiss plaintiff s claim because plaintiff does not allege
sufficient facts that, if taken as true, give rise to an inference of employment discrimination
based on race or sex.

ln addition, although plaintiff alleges that the discrimination occurred at the time of his
reinstatement without issuing back pay or restoration to his old shift, if plaintiff were to claim

that discrimination took place at the time of his suspension, then the claim would still be

dismissed for failure to exhaust all administrative remedies due to untimely EEO contact. 29
C.F.R. § l614.105(a)(l). Plaintiff had forty-five days from the time of the alleged adverse
employment action to initiate contact with an EEO counselor. Id. Because plaintiffs suspension
took effect in March 2010, plaintiff did not timely contact an EEO counselor when he initiated
contact in early July 2010, well beyond the forty-five day limit. Because untimely claims cannot
appropriately be exhausted, the timeliness of plaintiffs claims is dispositive of whether he can
sufficiently state a claim to survive defendant’s motion to dismiss.

B. NDW’s Failure to Restore Plaintiff to his Old Shift

Plaintiff alleges that NDW’s failure to restore him to his old shift also constitutes
employment discrimination based on race and sex. To sufficiently state a claim plaintiff must
allege he suffered an adverse employment action. An adverse employment action is a
"significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing significant change in benefits."
Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (internal citations and quotations
omitted). An employee suffers adverse employment action if he "experiences materially adverse
consequences affecting the terms, conditions, or privileges of employment or future employment
opportunities . . . ." Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). An adverse
employment action usually inflicts "tangible economic harm," but this was not the case for
plaintiff, Douglas, 559 F.3d at 552 (citing Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.
2002)).

Based on plaintiffs alleged facts, NDW’s failure to reinstate him to his old shift has no
effect on his pay and causes him no economic harrn. Such action does not constitute adverse

employment action because it does not affect plaintiffs employment terrns, conditions,

privileges or future employment opportunities. Plaintiff cites Douglas for the proposition that
the necessary "objective tangible harm" from an adverse employment action may have subjective
elements and does not always include economic harrn. (Pl.’s Opp. 10). Douglas also explains
that although the above-mentioned categories may contain subjective elements, "it is obvious
that each significantly changes an employee’s status." Douglas, 559 F.3d at 552. For
employment actions that do not clearly result in a significant change in employment status, an
employee must "[demonstrate] how the decision nonetheless caused such an objectively tangible
harrn." Id. at 553. This requires a consideration of whether the alleged harm is "unduly
speculative." ld. Douglas provides examples of employment actions causing harm that is not
unduly speculative; however, these examples all suggest an effect on a plaintiffs compensation.
Id. According to the standards provided by the plaintiffs cited case, the Court finds that plaintiff
has not alleged any objectively tangible harm from NDW’s failure to restore plaintiff to his old
shift. lt does not cause a significant change in plaintiffs employment status and plaintiffs
alleged harm is unduly speculative

C. Retaliation

Plaintiff alleges that NDW engaged in several acts of retaliation against him which
constitute a violation of his civil rights under Title Vll, 42 U.S.C. § 2000e-3(a), including the
five-day suspension in January 2012 and the denial of his supervisor’s request for shift change.
Plaintiff must allege sufficient facts to infer (1) that he engaged in protected activity opposing
discrimination; (2) that he suffered a materially adverse employment action by his employer; and
(3) that there was "a causal link between the protected activity and the adverse action."
Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (intemal citations omitted); see also

Jones v. Bernanke 557 F.3d 670, 677 (D.C. Cir. 2009). The only employment actions that could

plausibly be considered retaliation must have taken place after plaintiff engaged in protected
activity. Therefore, this Court addresses only the alleged retaliatory actions that took place after
plaintiff filed the September 4, 2010 EEO complaint,
1. Five-Day Suspension

Plaintiff s claim that the five-day suspension constitutes retaliation must be dismissed for
failure to state a claim because the alleged facts do not support an inference of a causal link
between plaintiffs protected activity and his January 2012 suspension. The January 2012
suspension was proposed in January 2011, approximately four months after plaintiffs EEO
complaint, Where the two events are very close in time, temporal proximity can support an
inference of causation. Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003).
ln this case, the adverse action is too far removed from the protected activity to be considered
"very close" and infer causation.$ Clark Cnty. Sch. Dist. V. Breea'en, 532 U.S. 268, 273-74
(2001) (approving two cases that found three-month and four-month periods too far removed to
be characterized as "very close") (intemal citations omitted); Taylor v. Solis, 571 F.3d 1313,
1322 (D.C. Cir. 2009) (finding untenable an inference of retaliatory motive "based upon the
mere proximity in time" between the protected activity and an adverse action two and one-half
months later). Because plaintiff does not allege any other facts to infer a causal link between the
September 2010 EEO complaint and the five-day suspension proposed four months later,

plaintiff fails to state a claim of retaliation based on this suspension.

5 The Court need not address whether the proposal for a five-day suspension or the suspension itself constitute an
adverse employment action because plaintiffs retaliation claim on these grounds fails for another reason. A five-
day suspension with pay is questionably an adverse employment action. Even if the suspension itself were an
adverse employment action, taking effect in January 2012, the temporal proximity would be significantly further
removed and the justification for dismissing this claim would be even stronger. The same is true if the protected
activity were determined to be plaintiffs initial contact with an EEO counselor, which took place in July 2010,

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2. Denial of Supervisor ’s Recomncendation for Shift Change

Finally, plaintiff claims that NDW’s denial of his supervisor’s recommendation to change
plaintiffs shift to allow him to have weekends off amounts to prohibited retaliation. This claim,
however, must also be dismissed for the same reason that NDW’s failure to restore plaintiff to
his old shift upon his reinstatement is dismissed. Denying a shift change recommendation does
not significantly change plaintiff s employment status, nor does it result in any objectively
tangible harrn. Thus, plaintiff fails to state a claim for retaliation on this basis as well.
IV. CONCLUSION

ln sum, defendant’s Motion to Dismiss for failure to state a claim is GRANTED as to all
of plaintiff s discrimination and retaliation claims.

A separate Order consistent with this Memorandum Opinion shall issue this date.

Signed by Royce C. Lamberth, United States District Judge, on  li , 2014.

