UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Civil Action No. 17-1978 (CKK) v.

THE GEORGE WASHINGTON UNIVERSITY, Defendant.

MEMORANDUM OPINION (May 8, 2019) Plaintiff United States Equal Employment Opportunity Commission (“EEOC” or the

“Commission”) has brought this action to challenge alleged sex discrimination by Defendant The

George Washington University (the “University”) pursuant to the Equal Pay Act of 1963, as

amended,

(d) (“EPA”), and Title VII of the Civil Rights of 1964, as amended, 42

U.S.C. § 2000e et seq. (“Title VII”). The director of the University’s Athletics Department

allegedly gave preferential treatment to a male staff member compared with a female executive

assistant.

Presently pending is the University’s motion to dismiss this case for failure to state a claim.

In the alternative, the University requests an order compelling the Commission to engage in further

conciliation and a stay pending completion of that process. Upon consideration of the briefing, 1

1 The Court’s consideration has focused on the following documents:

• Mem. of Law in Supp. of Mot. of Def. The George Washington University to Dismiss the Compl. or, Alternatively, Stay Proceedings, ECF No. 10-1 (“Def.’s Mem.”); • EEOC’s Mem. of P&A in Opp’n to Def.’s Mot. to Dismiss, ECF No. 15 (“Pl.’s Opp’n”); and • Reply Mem. of Law in Supp. of Mot. of Def. The George Washington University to Dismiss the Compl. or, Alternatively, Stay Proceedings, ECF No. 17 (“Def.’s Reply”).

1 the relevant legal authorities, and the record as a whole, the Court DENIES the [10] Motion of

Defendant The George Washington University to Dismiss the Complaint or, Alternatively, Stay

Proceedings.

I. BACKGROUND

The Court shall rely on the allegations in the Commission’s [1] Complaint to summarize

the pertinent factual background, reserving further elaboration to pertinent portions of this

Memorandum Opinion.

Sara Williams was hired in August 2014 as the Executive Assistant to Patrick Nero, the

University’s Director of Athletics. Compl., ECF No. 1, ¶ 14. 2 In this capacity, Ms. Williams’

work included, inter alia, “providing high-level administrative support” to Mr. Nero and “serving

on the senior staff of the Department of Athletics.” Id. ¶ 15.

The gravamen of this case dates to September 2015, when Michael Aresco “began

performing work in the Administrative Suite of the Office of the Director of Defendant’s Athletics

Department.” Id. ¶ 18. Although the briefing touches on Mr. Aresco’s title at the time,3 the

Complaint does not. Rather, the Commission simply states that Mr. Aresco “had not [previously]

been employed by Defendant in any administrative position.” Id. ¶ 19. Once Mr. Aresco started

contributing within the Administrative Suite, Mr. Nero “treated [him] more favorably than [Ms.

Williams], because of sex,” as evidenced by opportunities given to him while Ms. Williams was

2 Evidently Ms. Williams used her maiden name, Sara Mutalib, in proceedings before the Commission. Pl.’s Opp’n at 2 n.1. 3 The Court shall evaluate the sufficiency of allegations in the Complaint without relying on factual details supplied in the parties’ briefing. See, e.g., Kingman Park Civic Ass’n v. Gray,

, 165 n.10 (D.D.C. 2014) (Kollar-Kotelly, J.) (prohibiting plaintiff from effectively amending its pleading by means of briefing), aff’d sub nom. Kingman Park Civic Ass’n v. Bowser,

(D.C. Cir. 2016). 2 “minimiz[ed]” and “requir[ed] . . . to train Aresco,” “perform job duties that Aresco either failed

to perform or was incapable of performing,” and do “tasks such as running personal errands.” Id.

¶ 20.

In January 2016, the University advertised a new position in its Athletics Department. See

id. ¶¶ 22, 25. Based on the job posting, this Special Assistant’s duties would consist of “work . . .

substantially equal to the work that [Ms. Williams] performed.” Id. ¶ 24. But unnamed

“personnel” at the University effectively informed Ms. Williams that the job was off limits to her,

for the “the Special Assistant position had been created for Aresco, and . . . it already had been

decided to hire him for that position.” Id. ¶ 25. Whether in that way or by unspecified other means,

the University “dissuaded and deterred [Ms. Williams] from applying” for the job, despite her

qualifications therefor, and Mr. Aresco was indeed “selected” that same month. Id. ¶¶ 26-28.

Whereas Ms. Williams’ annual salary as Executive Assistant fell between $38,500 and $40,000,

Mr. Aresco initially was paid approximately $77,500 per year as Special Assistant and later was

awarded raises. Id. ¶¶ 17, 29.

Ms. Williams turned to the Commission to pursue EPA and Title VII claims against the

University. Id. ¶ 8. Upon finding reasonable cause for her claims, the Commission issued a Letter

of Determination to the University and proposed joint efforts to conciliate. Id. ¶ 9. Despite

communicating thereafter with the University, the Commission ultimately determined that it “was

unable to secure from [the University] a conciliation agreement acceptable to the Commission”

and sent a Notice of Failure of Conciliation on July 19, 2017. Id. ¶¶ 10-12.

On September 26, 2017, the Commission brought this lawsuit against the University under

the EPA and Title VII. Count I alleges that the University paid Ms. Williams “lower compensation

than Defendant paid to males to perform substantially equal work,” in violation of the EPA. Id.

3 ¶ 32. Count II alleges that the University violated Title VII by “engaging in disparate pay practices

based on sex”; “failing to provide [Ms. Williams] with promotional opportunities”; “subjecting

[Ms. Williams] to disparate terms and conditions of employment”; and “depriving [Ms. Williams]

of employment opportunities and advancement because of her sex.” Id. ¶¶ 37, 38. The

Commission seeks a variety of remedies, including an injunction against any similar treatment of

the University’s other female employees, an order that the University put into place policies that

ensure equal employment opportunities for women, and compensation for Ms. Williams. Id.

(Prayer for Relief).

The University responded to these claims with the pending motion to dismiss. After

briefing had concluded, and while the motion remained under advisement, the Court granted the

Commission’s request for a stay during a partial government shutdown. Min. Order of Dec. 26,

2018. Some time after proceedings resumed, the Court sought an update as to any pertinent

developments and/or case law that post-dated briefing of the pending motion. See Min. Orders of

Jan. 30, 2019, and Apr. 23, 2019. At the Court’s instruction, the parties focused on the University’s

alternative request for a stay pending further conciliation; they did not bring any other

developments or case law to the Court’s attention. See Joint Notice Regarding Case Update, ECF

No. 21.

II. LEGAL STANDARD

A. Motion to Dismiss for Failure to State a Claim

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “‘a short and

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.

4 v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)); accord

Erickson v. Pardus,

(2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish

“more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”

Twombly,

(citing, e.g., Papasan v. Allain,

(1986)).

Instead, a complaint must contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” Twombly,

; Erickson,

. “A claim has facial plausibility 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. Iqbal,

(2009) (citing Twombly,

). The complaint must

establish “more than a sheer possibility that a defendant has acted unlawfully.”

(citing

Twombly,

). “[W]here the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—

‘that the pleader is entitled to relief.’”

at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

“In determining whether a complaint fails to state a claim, [the court] may consider only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which [the court] may take judicial notice.” Hurd v. District of Columbia,

Gov’t,

(D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997)) (internal quotation marks omitted) (alterations in original).

“If the district court considers other facts, it must convert the motion to dismiss into a motion for

summary judgment and ‘provide the parties with notice and an opportunity to present evidence in

5 support of their respective positions.’”

(quoting Kim v. United States,

(D.C.

Cir. 2011); citing Fed. R. Civ. P. 12(d)).

When considering a motion under Rule 12(b)(6), the court “construe[s] the complaint

liberally, grant[ing] plaintiff[ ] the benefit of all inferences that can [reasonably] be derived from

the facts alleged.” Sickle v. Torres Advanced Enterprise Sols., LLC,

(D.C. Cir.

2018) (quoting Browning v. Clinton,

(D.C. Cir. 2002)) (each alteration, except

first, in original) (internal quotation marks omitted).

B. Motion to Stay Proceedings

“[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for itself, for

counsel, and for litigants. How this can best be done calls for the exercise of judgment, which

must weigh competing interests and maintain an even balance.” Air Line Pilots Ass’n v. Miller,

, 879 n.6 (1998) (quoting Landis v. North Am. Co.,

(1936))

(internal quotation marks omitted); see also Clinton v. Jones,

(1997) (“The

District Court has broad discretion to stay proceedings as an incident to its power to control its

own docket.”).

A party requesting a stay of proceedings “must make out a clear case of hardship or inequity

in being required to go forward, if there is even a fair possibility that the stay for which he prays

will work damage to some one else.” Landis,

.

III. DISCUSSION

There is no dispute as to the Court’s subject-matter jurisdiction, which is attributable, at

the least, to federal questions under the EPA and Title VII. See Compl., ECF No. 1, ¶ 1 (citing

these grounds, among others);

;

(d); 42 U.S.C. § 2000e–2(a)(1).

6 Each of those statutory regimes expressly recognizes jurisdiction in federal district court. See

(a)(2), 217; 42 U.S.C. § 2000e–5(f)(3).

Although the University challenges an aspect of the conciliation process, neither of the

parties has framed conciliation as a jurisdictional issue, and the Court is satisfied that it is not. See

EEOC v. MVM, Inc., Civil Action No. TDC-17-2881,

, at *2 (D. Md. Apr. 19,

2018) (citing Arbaugh v. Y & H Corp.,

(2006); EEOC v. Agro Distribution,

LLC,

(5th Cir. 2009)); EEOC v. MJC, Inc.,

(D.

Haw. 2018) (discussing, e.g., Arbaugh,

). Accordingly, the Court shall not

examine any aspect of the Commission’s compliance with conciliation other than the specific

aspect raised by the University, namely the extent to which the University was sufficiently

informed of the claims against it.

A. Motion to Dismiss for Failure to State a Claim

The Court shall consider whether the Commission has stated a claim under the EPA before

turning to its Title VII claim. Extraneous issues that the Court does not address below do not affect

its resolution of the pending motion.

1. Equal Pay Act

The EPA generally prohibits discrimination “between employees on the basis of sex by

paying wages to employees . . . at a rate less than the rate at which [the employer] pays wages to

employees of the opposite sex . . . for equal work on jobs the performance of which requires equal

skill, effort, and responsibility, and which are performed under similar working conditions, except

where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system

which measures earnings by quantity or quality of production; or (iv) a differential based on any

other factor other than sex.”

(d)(1) (emphasis added). According to the

7 regulations, the work must be “substantially equal” and need not be “identical.”

(a).

The Complaint straightforwardly pleads that Ms. Williams was paid less as Executive

Assistant than Mr. Aresco was paid as Special Assistant for substantially the same job

responsibilities. Compare Compl., ECF No. 1, ¶ 17 ($38,500-$40,000 paid to Ms. Williams

annually), with

(approximately $77,500 paid to Mr. Aresco annually, prior to raises); see

also

(“The Special Assistant job posting describes work that is substantially equal to the

work that [Ms. Williams] performed while she worked for Defendant as the Executive Assistant

to the Athletics Director.”).

The issue is whether those jobs involved “substantially equal” work demanding “equal

skill, effort, and responsibility” and were “performed under similar working conditions.”

(d)(1);

(a). At this stage, the Court need not reach the four

exceptions listed at the end of Section 206(d)(1). See Corning Glass Works v. Brennan,

(1974) (discussing employer’s burden under EPA to establish one of these affirmative

defenses after plaintiff discharges burden).

The parties vigorously dispute the similarity of the Executive Assistant and Special

Assistant roles. But what should be a contest over the sufficiency of allegations in the Complaint

has turned into a dispute over ancillary documents. Neither the Executive Assistant job description

nor the Special Assistant job posting is attached to the Complaint. The University’s brief

introduces the former into the record, while the Commission introduces the latter in response. See

Def.’s Mem. at 5 n.2; Pl.’s Opp’n at 10-11. The Commission raises no objection to the University’s

assertion that the Executive Assistant description is incorporated by reference into the Letter of

Determination and in turn into the Complaint. See Pl.’s Opp’n at 8; Def.’s Mem. at 3 n.1; 5 n.2.

8 The Commission simply submits that any incorporation of the Executive Assistant description

would warrant the same treatment for the Special Assistant posting, to which the University does

not specifically object. Pl.’s Opp’n at 10-11; Def.’s Reply at 6.

There is sufficient textual basis in the Complaint to find that the Special Assistant job

posting is incorporated by reference. The Complaint expressly discusses and accurately quotes

from that posting. See, e.g., Compl., ECF No. 1, ¶¶ 22-24. Accordingly, the Court can consider

the Special Assistant job posting without converting the pending motion to dismiss into a motion

for summary judgment. See Hurd,

. Even so, the Court shall refer to that posting

only for illustrative purposes; it is not necessary to sustain the allegations in the Complaint.

The Complaint states a description of some of “the work [Ms. Williams] performed” as

Executive Assistant, and then asserts that the Special Assistant job posting identifies “substantially

equal” work. Compl., ECF No. 1, ¶¶ 15, 24. One look at that job posting confirms that the Special

Assistant duties therein are not only substantially equal, but nearly identical, to what Ms. Williams

has alleged that she did in her role as Executive Assistant. Compare Decl. of Mindy Weinstein,

ECF No. 15-1, Ex. B (Ex. 6 at 1), with Compl., ECF No. 1, ¶ 15.

The Court need not decide whether the Executive Assistant description is incorporated into

the Complaint, because the Court does not rely on that document to decide the pending motion.

The extent to which Ms. Williams’ alleged duties—or the Special Assistant job posting itself—

differ from the Executive Assistant job description does not matter, at least at this stage.

Regardless of whether the substantially equal work is “formally assign[ed]”—in Ms. Williams’

job description, for example—“the EPA applies if the employer knowingly allows the employee

to perform the [substantially] equal work.”

(a) (emphasis added). This is not

the stage to assess whether the University knew what Ms. Williams was doing; it suffices to say

9 that the job description attached to Ms. Williams’ title is not controlling where her alleged duties

in practice may differ. Nor, at least right now, must the Court decide whether Ms. Williams’ duties

as Executive Assistant were greater than those of Mr. Aresco as Special Assistant.

It is sufficient for the Commission to plead that Ms. Williams and Mr. Aresco performed

substantially equal work—and yet were paid differently—without getting into the “equal skill,

effort, and responsibility” or “similar working conditions” aspects of Section 206(d)(1). “At the

motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not

plead the elements of a prima facie case.” Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008) (citing Swierkiewicz v. Sorema N.A.,

(2002)). The Court

concludes that the Commission has sufficiently pled a violation of the Equal Pay Act.

2. Title VII of the Civil Rights Act

Under Title VII, an employer must not “fail or refuse to hire or . . . discharge any individual,

or otherwise . . . discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–2(a)(1). “This statutory text establishes two elements for an

employment discrimination case: (i) the [complainant] suffered an adverse employment action

(ii) because of the employee’s race, color, religion, sex, or national origin.” Brady,

.

“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,

(D.C.

Cir. 2009) (quoting Taylor v. Small,

(D.C. Cir. 2003)). In several cases

concerning lateral transfers—which do not appear on this illustrative list of adverse actions—the

10 Court of Appeals has held that the plaintiff must demonstrate “some other materially adverse

consequence affecting the terms, conditions, or privileges of employment or future employment

opportunities, whereby a reasonable trier of fact could find that [the complainant] suffered

objectively tangible harm.” Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Dev., Office of Inspector

Gen.,

(D.C. Cir. 2017) (citing Brown v. Brody,

(D.C. Cir.

1999)).

As with the EPA claim, the Court cannot hold the Commission to the burden of pleading a

prima facie case under Title VII—to the extent that the prima facie step even remains relevant for

Title VII claims in this Circuit. See Brady,

-94 (citing Swierkiewicz,

); Swierkiewicz,

(“The prima facie case under McDonnell Douglas [Corp.

v. Green,

(1973)] . . . is an evidentiary standard, not a pleading requirement.”).

Rather than requiring “heightened pleading” for discrimination cases, the Supreme Court has made

clear that the generally applicable plausibility standard governs in this setting as well. See, e.g.,

Twombly,

-70 (citing Swierkiewicz,

); EEOC v. Port Auth. of

New York & New Jersey,

(2d Cir. 2014) (“Twombly’s endorsement of

Swierkiewicz mandates, at a minimum, that Swierkiewicz’s rejection of a heightened pleading

standard in discrimination cases remains valid.”).

The Commission has plausibly pled a course of preferential treatment for Mr. Aresco, to

the detriment of Ms. Williams, that supports a reasonable inference of “materially adverse” effects

on Ms. Williams’ career in the Athletics Department resulting in “objectively tangible harm.”

Ortiz-Diaz,

. Whereas the Commission’s EPA claim focuses on a point-in-time

comparison between Ms. Williams’ and Mr. Aresco’s pay, the Title VII claim relies on the

University’s activity before, during, and after the process of selecting Mr. Aresco for the Special

11 Assistant role. “[C]onstru[ing] the complaint liberally,” the Court finds that the Complaint

contains sufficient factual content to permit “the reasonable inference that the [University] is liable

for the misconduct alleged.” Sickle,

; Ashcroft,

.

Turning to the allegations, the Complaint suggests that Ms. Williams performed at a rather

sophisticated level in her Executive Assistant role, at least prior to Mr. Aresco’s arrival in the

Administrative Suite. The non-exhaustive list of her work included:

(a) providing high-level administrative support to the Director of Athletics; (b) leading the administrative function of the Office of the Director of Athletics; (c) coordinating administrative staff members; (d) maintaining the external face of the Office of the Director of Athletics; (f) [sic] acting as liaison to external departments for administrative and operational matters; (g) acting as project manager for special projects in support of key priorities for the Department of Athletics; and (h) serving on the senior staff of the Department of Athletics.

Compl., ECF No. 1, ¶ 15. But that began to change when Mr. Nero enlisted Ms. Williams in

effectively “grooming” Mr. Aresco for the role that she had been fulfilling. Pl.’s Opp’n at 5; see

also Compl., ECF No. 1, ¶¶ 20, 24. Presumably due to Mr. Aresco’s lack of experience in an

administrative capacity at the University, Ms. Williams had to “train” Mr. Aresco and to “perform

job duties that [he] either failed to perform or was incapable of performing.” Compl., ECF No. 1,

¶¶ 19, 20. Meanwhile, Mr. Nero “minimiz[ed]” Ms. Williams,

ostensibly to make way for Mr.

Aresco. That reduction in Ms. Williams’ status consisted at the least of “assigning her to tasks

such as running personal errands.”

Mr. Nero also “enhance[ed] Aresco’s importance and

future opportunities”; “provid[ed] promotional opportunities to Aresco”; “and otherwise favor[ed]

Aresco to [Ms. Williams’] detriment.”

Several allegations about the Special Assistant job posting further demonstrate preferential

treatment of Mr. Aresco. According to unspecified University “personnel,” the Special Assistant

12 job was “created for” Mr. Aresco, and “it already had been decided to hire him for that position”

before it was posted in January 2016. Id. ¶¶ 22, 25. Ms. Williams was “dissuaded and deterred”

by the University “from applying” for the new role, id. ¶¶ 22, 25, presumably because of the

personnel’s comments. And in turn Mr. Aresco was given the position of Special Assistant. Id.

¶ 28. All of this despite Ms. Williams’ qualifications for the role and the fact that she performed

work “substantially equal” to the duties listed in the job posting. Id. ¶¶ 15, 24, 27. 4

The Complaint does not detail Ms. Williams’ experience after Mr. Aresco became Special

Assistant. But what it does say supports the discrimination claim. First, Mr. Aresco’s starting

salary was roughly double Ms. Williams’ salary for substantially equal work. Id. ¶¶ 17, 24, 29.

Second, Mr. Aresco was given raises on top of that inflated salary. Id. ¶ 29. Lastly, albeit more

generically, were the ongoing effects:

After Defendant and Nero provided Aresco with employment opportunities, advancement, and other preferential treatment, including but not limited to paying him more than [Ms. Williams] to work as the Special Assistant to the Athletics Director, such preferential treatment continued to adversely impact [Ms. Williams’] compensation rate and opportunities for advancement.

Id. ¶ 30 (emphasis added).

The Court of Appeals has indicated that “changes in assignments or work-related duties do

not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary

or work hour changes.” Mungin v. Katten Muchin & Zavis,

(D.C. Cir. 1997)

(collecting cases). But that court has also stated—more broadly—that “materially adverse

consequence[s] affecting the terms, conditions, or privileges of employment or future employment

opportunities” can suffice. Ortiz-Diaz,

; Forkkio v. Powell,

, 1130-

4 The Commission denies that the Special Assistant job would have been a promotion for Ms. Williams. Pl.’s Opp’n at 24. There is no need to evaluate that position at this time. 13 31 (D.C. Cir. 2002) (same). The changes in Ms. Williams’ assignments—to include running

personal errands—did not stand alone; rather, they were part of a course of preferential treatment

that plausibly inflicted tangible harm on Ms. Williams’ then-present and future opportunities in

the office, including the deprivation of a job paying double for the same or similar work.

The Commission attributes the preferential treatment in this case to Mr. Nero’s gender-

based discrimination and rejects a non-discriminatory explanation as pretextual. See Compl., ECF

No. 1, ¶¶ 20, 21, 37-39. Although the Complaint does not offer much factual support, “[m]erely

alleging that the employer’s proffered reasons for the adverse employment actions is [sic] false

may support an inference of discrimination sufficient to survive a motion to dismiss.” Nurriddin

v. Bolden,

(D.D.C. 2009) (citing George v. Leavitt,

(D.C. Cir. 2005)). In Mr. Aresco, the Commission has identified a male comparator to illustrate

the allegedly discriminatory treatment. And the Commission rebuts unspecified, non-

discriminatory justifications for “favorable treatment” of Mr. Aresco by flagging Mr. Nero’s

“pattern of using power granted to him by Defendant to gain access, and provide preferential

treatment, to males and to minimize or oppose those who are entitled to equal treatment or do not

support his inappropriate or discriminatory conduct.” Compl., ECF No. 1, ¶ 21. While this

“pattern” lacks supporting details, the Court finds the low pleading threshold to be satisfied.

The Court’s finding of sufficient allegations is consistent with other cases in this Circuit.5

For example, in McManus v. Kelly, the plaintiff successfully stated a Title VII discrimination claim

where she allegedly had trained people of lesser experience whose subsequent applications for

internal jobs were preferred to hers.

(D.D.C. 2017). Similarly, Ms.

5 Although some of the cases in this paragraph and the following one contain discrimination claims under multiple statutes, the Court focuses here on the Title VII claims. 14 Williams alleges, in effect, that she trained Mr. Aresco—who was new to the Administrative

Suite—for a job that she was dissuaded from applying for because he reportedly was pre-selected.

By contrast, in Bruder v. Chu, allegations of not receiving “the types of assignments [the plaintiff]

wanted” were insufficient to support a Title VII discrimination claim because he had not

demonstrated “any monetary loss or material change in the terms of his employment,” including

any “loss of . . . promotion possibilities.”

(D.D.C. 2013) (citing, e.g.,

Mungin,

). Ms. Williams’ grievance rises above dissatisfaction with the work she

was given, including the assignment of personal errands; she clearly alleges that she lost

opportunities, such as the better-paying role given to Mr. Aresco that involved substantially equal

work.

The Court also distinguishes several of its own recent decisions. In Stewart v. FCC, the

plaintiff allegedly was “told [that] she was responsible for certain administrative assignments” that

were “actually the responsibility of a different, male employee,” but this was not sufficient

evidence of an adverse employment action to state a Title VII discrimination claim.

(D.D.C. 2016) (Kollar-Kotelly, J.) (citing, e.g., Mungin,

). Whereas

Ms. Williams not only was given duties to which she evidently objected—e.g., the personal

errands—but she plausibly pled more generally that her role was minimized in favor of a specific

colleague’s advancement. In Jones v. Castro, on the other hand, the Court rejected a generic

allegation that the defendant’s actions had “ended any chance for career advancement.”

(D.D.C. 2016) (Kollar-Kotelly, J.) (citation and internal quotation marks

omitted). With respect to that contention, the plaintiff in Jones had not made any non-conclusory

allegations of objectively tangible harm to support his Title VII discrimination claim.

at 182-

83 (citing, e.g., Forkkio,

). Here, the Commission has identified a specific lost

15 opportunity—the Special Assistant role—that, even if it was not strictly a promotion, certainly

entailed far better pay than Ms. Williams’ Executive Assistant job.

Further evidence likely would be necessary to survive summary judgment. But, for now,

the Commission’s Complaint contains the “short and plain statement” necessary to place the

University on notice of its Title VII claim. Fed. R. Civ. P. 8(a)(2); see Twombly,

.

B. Motion to Stay Proceedings

In the alternative, the University seeks an order compelling the Commission to fulfill its

conciliation obligation, as well as a stay of this case pending such conciliation. The University

argues that the Commission did not fulfill this obligation because it did not identify certain “record

evidence” on which it relied, for example, in determining that Ms. Williams “was deterred from

submitting an application in response to the Special Assistant posting, and that it would have been

futile for her to do so.” Def.’s Mem. at 21-23 (quoting Decl. of Matthew S. Rozen, ECF No. 10-

2 (Determination, Ex. 1, at 2)) (internal quotation marks omitted). But the University has not

established that it is entitled to any further information during conciliation.

The Commission’s precedent indicates that the EPA claim is not subject to a conciliation

requirement. See Pl.’s Opp’n at 29-30 (citing, e.g., Cty. of Washington v. Gunther,

,

175 n.14 (1981); Ososky v. Wick,

(D.C. Cir. 1983)). Nor does the University

offer any authority to the contrary. See, e.g., Def.’s Reply at 25 (urging the irrelevance of the

Commission’s argument, “even if true,” because Title VII claim requires conciliation).

As to the Title VII claim, under Mach Mining, LLC v. EEOC, the Court may review the

Commission’s conciliation efforts to only a limited degree.

(2015). Pursuant to

42 U.S.C. § 2000e–5(b), when “the Commission determine[d] after [its] investigation that there is

reasonable cause to believe that the charge [filed by Ms. Williams] is true,” the Commission was

16 obligated to “endeavor to eliminate any such alleged unlawful employment practice by informal

methods of conference, conciliation, and persuasion.” If, in “narrow” circumstances, the Court

finds that those conciliation efforts were lacking, then “the appropriate remedy is to order the

EEOC to undertake the mandated efforts to obtain voluntary compliance,” which may warrant a

stay to facilitate those further proceedings. Mach Mining, LLC,

(citing 42

U.S.C. § 2000e–5(f)(1)).

The circumscribed scope of the Court’s involvement is particularly relevant here, where

the University challenges the Commission’s communications. While “a reviewing court must

ensure that the EEOC complied with statutory conciliation requirements at least to the degree that

it communicated to the employer that an unlawful employment practice had been alleged and [that

the EEOC had] engaged the employer in some form of discussion,” that the “court may not do a

‘deep dive into the conciliation process.’” Ryskamp v. Comm’r of IRS,

(D.C. Cir. 2015) (quoting Mach Mining, LLC,

; citing

). The

Commission has “extensive discretion to determine the kind and amount of communication with

an employer appropriate in any given case.” Mach Mining, LLC,

.

Amongst those discretionary decisions is the Commission’s authority to decide whether to

“lay all its cards on the table.”

. Surely one of those cards is any specific information

the Commission may possess about the University’s alleged dissuasion of Ms. Williams’

application.

At least as far as the content of its conciliation—the only issue here—the Commission

appears to have met its obligation to conciliate the Title VII claims. The Commission did, as it

“must[,] inform the employer about the specific allegation, as the Commission typically does in a

letter announcing its determination of ‘reasonable cause.’”

at 1655-56 (quoting 42 U.S.C.

17 § 2000e–5(b)). “Such notice properly describes both what the employer has done and which

employees . . . have suffered as a result.” Id. at 1656. The Supreme Court has observed that “[a]

sworn affidavit from the EEOC stating that it has performed the obligations” set forth in Mach

Mining “but that its efforts have failed will usually suffice to show that it has met the conciliation

requirement.” Id. (citing United States v. Clarke,

(2014)). The Commission

has furnished such an affidavit in this case. See Decl. of Mindy Weinstein, ECF No. 15-1.

While the University challenges the Commission’s assessment of its own compliance, the

University has not provided the “credible evidence” necessary to show that the Commission “did

not provide the requisite information about the charge,” and thereby trigger the need for an

evidentiary hearing. Mach Mining, LLC,

. As Mach Mining shows, the requisite

information about the charge is limited to informing the University of the specific allegation. And

the specific allegation is that Ms. Williams was subjected to gender discrimination because of,

among other reasons, the deterrence and futility of applying for a job reserved instead for a man.

The Commission was not obligated to disclose any further information or its sources to meet its

limited conciliation obligation. See also, e.g., MVM, Inc., Civil Action No. TDC-17-2881,

, at *4 (rejecting request for further detail on the basis that the Commission had

identified to defendant “the conduct and the employees who suffered as a result, including

specifically identifying the primary charging party . . . such that [defendant] had notice of the

potential claims against it”).

Accordingly, in an exercise of its discretion, the Court shall deny the requested stay

because the Commission is not obligated to engage in any further conciliation.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES the [10] Motion of Defendant The George

18 Washington University to Dismiss the Complaint or, Alternatively, Stay Proceedings.

An appropriate Order accompanies this Memorandum Opinion.

Dated: May 8, 2019

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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