UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HAROLD STANLEY JACKSON, : : Plaintiff, : Civil Action No.: 19-1487 (RC) : v. : Re Document No.: 32 : STARBUCKS CORPORATION, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT DAN WHITE-HUNT’S MOTION TO DISMISS AMENDED COMPLAINT

I. INTRODUCTION

Plaintiff Harold Stanley Jackson brings this action against Starbucks Corporation

(“Starbucks”), and local Starbucks manager Dan White-Hunt (collectively, “Defendants”). He

contends that Defendants discriminated against him based on his race and personal appearance,

when, on April 24, 2018, he was verbally and physically accosted by a Starbucks staff member

while attempting to make a purchase at a local Starbucks located in Foggy Bottom. He now

asserts a number of claims against Defendants, including common law negligent supervision,

aiding and abetting battery, and race and personal appearance discrimination under the D.C.

Human Rights Act (“DCHRA”),

and race discrimination under

(“Section 1981”). White-Hunt has moved to dismiss the claims against him in their

entirety. For the reasons stated below, White-Hunt’s motion to dismiss will be granted in part

and denied in part. II. FACTUAL BACKGROUND

A. The Incident at Starbucks

The Court summarizes the relevant facts as alleged in Jackson’s amended complaint,

assuming, as it must when considering a motion to dismiss for failure to state a claim, the “truth

of all well-pleaded factual allegations . . . and construes reasonable inferences from those

allegations in the plaintiff's favor.” Sissel v. U.S. Dep’t of Health & Human Servs.,

(D.C. Cir. 2014).

The basis for this suit concerns an alleged altercation that occurred between Jackson, an

African American man and Starbucks customer, and various Starbucks employees. Jackson

entered the Starbucks located at 2130 H Street, NW, Washington D.C. on the afternoon of April

24, 2018. Am. Compl. ¶¶ 15–17, ECF No. 22. After picking up a small package of pre-wrapped

madeleine cookies from the counter, he started to walk towards the end of the line of customers

waiting to make their purchase. Id. ¶¶ 1, 18. At this time, the Starbucks cashier, Richard

Washington, said to Jackson something to the effect of “Sir, you’re not supposed to touch those”

or “Sir, you have to pay for those.” Id. ¶ 19. Jackson responded by saying, “What, do you think

I’m going to steal it?” Id. ¶ 20. Washington continued to insist that Jackson return the cookies

to the shelf, at which point Jackson asked to speak to a manager. Id. ¶ 21. Jackson then had a

brief, roughly two-minute conversation with White-Hunt, the store manager, after which time

Jackson walked to the end of the customer line to wait to make his purchase. Id. ¶ 23.

Shortly thereafter, Washington, “a large and physically imposing man” came out from

behind the counter and “walked aggressively towards [] Jackson.” Id. ¶ 26. Jackson alleges that

he did so “on White-Hunt’s instruction or with his encouragement.” Id. White-Hunt followed

after Washington. Id. ¶ 27. Washington then moved White-Hunt out of the way, muttered “he

2 gotta get out,” and pushed Jackson. Id. ¶ 28. Jackson responded by telling Washington, “Big

man, don’t put your hands on me no more,” at which point Washington pushed Jackson to the

floor. Id. As a result of the fall, Jackson briefly lost consciousness and apparently suffered a

seizure. Id. Within five minutes, medical personnel arrived on the scene and took him to a

nearby hospital. Id. ¶¶ 32, 34.

Later that day, White-Hunt called a Starbucks reporting line to file an oral incident report

of the physical altercation, representing that “[p]olice were not called” and that “[n]obody was

injured.” Id. ¶ 36. He also reported a starkly different situation than the one painted by Jackson

in his amended complaint, stating that “[Jackson] shouted at [White-Hunt] using profanity words

. . . [White-Hunt then] overheard the customer yell at the front end barista, Chelsie, that he was

going to mess her up and yelled at her. . . [a]t that time, another barista, [Washington],

approached the customer and advised the customer to leave the premises. [Jackson] got more

aggravated and proceeded to attack [Washington]. In defense, [Washington] held the customer

back until the campus police arrived . . .” Id.

Jackson continues to experience back and neck pain as a result of the incident, and has

incurred medical expenses to treat these injuries. Id. ¶¶ 59–61. He remains unable to exercise as

he used to, and has trouble falling asleep. Id. ¶ 62. He also alleges that the resulting physical

limitations “have caused substantial mental anguish and frustration,” on top of the humiliation he

suffered due to his discriminatory treatment by Defendants. Id. ¶¶ 61–63.

B. Procedural History

On April 22, 2019, Jackson filed a complaint against Starbucks and Washington (named

as “John Doe”) in the Superior Court of the District of Columbia. See Superior Court Complaint,

3 ECF No. 1-4. A month later, Starbucks removed the matter to this Court. See Notice of

Removal, ECF No. 1.

On April 24, 2020, Jackson amended his complaint to remove Washington as a

defendant, 1 and added claims against White-Hunt, the store manager on duty at the time of the

incident. As is relevant to the motion before the Court, Jackson now asserts four claims against

White-Hunt, including: (1) a claim alleging that White-Hunt’s supervision of Washington was

negligent, Am. Compl. ¶¶ 67–68, (2) a claim alleging that White-Hunt aided and abetted in

Washington’s battery, id. ¶¶ 73–75, (3) a race and physical appearance claim of discrimination in

violation of the DCHRA, id. ¶¶ 76–83, and (4) a race discrimination claim in violation of Section

1981. Id. ¶¶ 84–89. This Court has original jurisdiction over the claim for race discrimination

in violation of Section 1981 and supplemental jurisdiction over each of the other claims pursuant

to

(a) and 1441(c). See Notice of Removal at 1.

White-Hunt has now filed a motion to be dismissed as a defendant in this case pursuant to

Rule 12(b)(6). Def. Dan White-Hunt’s Mot. Dismiss Am. Compl. (“Def.’s Mot.”), ECF No. 32.

Jackson opposes this motion, Pl.’s Opp’n to Def. White-Hunt’s Mot. Dismiss (“Pl.’s Opp’n”),

ECF No. 35, and White-Hunt has filed a reply, Def. Dan White-Hunt’s Reply in Further Supp. of

Mot. Dismiss (“Def.’s Reply”), ECF No. 37. The motion is fully briefed and ripe for

consideration.

III. LEGAL STANDARD

To prevail on a motion to dismiss for failure to state a claim, a plaintiff must provide a

“short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), that “give[s] the defendant fair

1 According to the parties, Washington, the Starbucks employee who was the direct participant in the altercation with Jackson, passed away while this action was pending. See Def.’s Mot. at 4.

4 notice of what the . . . claim is and the grounds upon which it rests,” Bell Atl. Corp. v.

Twombly,

(2007) (second alteration in original) (quoting Conley v. Gibson,

(1957)). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s

likelihood of success on the merits, but rather “tests the legal sufficiency of a complaint” by

asking whether the plaintiff has properly stated a claim for which relief can be granted.

Browning v. Clinton,

(D.C. Cir. 2002). In considering such a motion, the

complaint must be construed “liberally in the plaintiff’s favor with the benefit of all reasonable

inferences derived from the facts alleged.” Stewart v. Nat’l Educ. Ass’n,

(D.C. Cir. 2006) (citing Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994)).

Nevertheless, “[t]o survive a 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,

(2009) (quoting Twombly,

). This means that a

plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Twombly, 550 U.S. at 555–56 (citations omitted). Additionally, “[i]f the allegations . . .

show that relief is barred by the applicable statute of limitations, the complaint is subject to

dismissal for failure to state a claim . . .” Jones v. Bock,

(2007).

“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.” EEOC v. St. Francis

Xavier Parochial Schl.,

(D.C. Cir. 1997).

5 IV. ANALYSIS

White-Hunt has moved to dismiss all four claims against him for failure to state a claim.

He argues that the negligent supervision claim must be dismissed because Jackson has not

alleged that White-Hunt had prior knowledge that Washington had a propensity to act

aggressively or violently towards customers, Def.’s Mot. at 6–8, that the aiding and abetting

battery claim is time-barred,

at 8–10, that Jackson has not plausibly alleged that White-Hunt

violated the DCHRA by engaging in race or personal appearance discrimination,

at 12–13,

and that Jackson has similarly failed to state a claim that White-Hunt engaged in race

discrimination in violation of Section 1981,

at 13–15. The Court evaluates each argument in

turn.

A. Negligent Supervision

The Court begins with White-Hunt’s argument that Jackson has failed to state a claim of

negligent supervision against him. White-Hunt contends that this claim is deficient in two

respects. First, he notes that Jackson has failed to specifically allege that he was owed any sort

of legal duty by White-Hunt. Def.’s Reply at 4. Second, he claims that the pleadings lack any

allegation, as required, that White-Hunt knew or should have known that his subordinate,

Washington, would “behave in a dangerous or otherwise incompetent manner.” Def.’s Mot. at 7.

The Court’s review of the amended complaint, however, does not reach those same conclusions,

and finds that under the “minimal” pleading burden required at this stage Jackson has properly

stated a claim of negligent supervision against White-Hunt.

The tort of negligent supervision “allows a plaintiff to hold employers directly liable for

their failure to properly supervise their personnel.” James v. Dist. of Columbia,

(D.D.C. 2012); Griffin v. Acacia Life Ins. Co.,

(D.C. 2007). To

6 properly state a negligent supervision claim under District of Columbia law, a plaintiff must

establish “that the employer breached a duty to [the] plaintiff to use reasonable care in the

supervision . . . of an employee which proximately caused harm to plaintiff.” Phelan v. City of

Mount Rainier,

(D.C. 2002). This requires that the plaintiff show “(1) that

[Defendants] ‘knew or should have known its employee[s] behaved in a dangerous or otherwise

incompetent manner,’ and (2) that [Defendants], ‘armed with that actual or constructive

knowledge, failed to adequately supervise [its employees].’” Daisley v. Riggs Bank, N.A.,

(D.D.C. 2005) (quoting Giles v. Shell Oil Corp.,

) (D.C.

1985); District of Columbia v. Tulin,

(D.C. 2010) (same).

An “essential element” of any negligence claim under District of Columbia law is “[t]he

existence of a legal duty.” Simms v. Dist. of Columbia,

(D.D.C. 2010)

(quoting Dist. of Columbia v. White,

(D.C. 1982)). This requires that a

plaintiff “allege facts which show that the defendant breached some legally imposed duty owed

to the plaintiff.”

White-Hunt claims that Jackson has omitted this “essential element” here.

The Court disagrees. District of Columbia law recognizes that employers “dealing with the

public” have a general legal duty “to use reasonable care to select, retain and supervise

employees such that they are competent and fit for the work assigned to them.” Newman v.

Borders, Inc.,

(D.D.C. 2008) (noting, “[t]he cause of action for

negligent supervision recognizes that an employer owes specific duties to third persons based on

the conduct of its employees”) (citing Griffin,

). A liberal construal of the

amended complaint shows that this duty can reasonably be inferred from the pleadings. Jackson

has alleged that White-Hunt, the manager of a Starbucks store that is open to the public, “failed

to exercise reasonable care” in his supervision of Washington by instructing him to come out

7 from behind the counter and approach Jackson, after which Washington acted in a threatening

manner, and pushed Jackson twice. Am. Compl. ¶ 67. These facts as plead in the amended

complaint are sufficient for the Court to infer that a general legal duty owed to Jackson has been

alleged.

White-Hunt also contends that Jackson has failed to state a claim of negligent supervision

because Jackson did not allege that White-Hunt knew or should have known that his subordinate,

Washington, behaved in a dangerous or otherwise incompetent manner toward Jackson, despite

the allegations that he directly witnessed—and even encouraged—the alleged battery.

Essentially, he claims that Washington’s actions were unforeseeable, and that he had no actual or

constructive knowledge of Washington’s conduct. To support this point White-Hunt emphasizes

that the amended complaint does not allege that he “had prior notice that Washington could act

violently towards customers” in the form of any prior incidents involving Washington in the

store, or any indication that Washington had a violent criminal past. Def.’s Mot. at 8.

Consequently, he contends, Jackson is attempting “to hold [him] liable for failing to predict Mr.

Washington’s alleged intentions seconds before the altercation.”

But this ignores what the amended complaint does allege. Jackson has plead that “on

White-Hunt’s instruction or with his encouragement” Washington, a “large and physically

imposing man” “walked aggressively toward Mr. Jackson” and was followed shortly thereafter

by White-Hunt. Am. Compl. ¶¶ 26–27. Both men then “confronted” Jackson together. Id. ¶ 28.

While White-Hunt was standing directly next to Washington, presumably with a full view and

within reach to intervene if needed, Washington proceeded to push Jackson twice. Id. It was not

until the second push that Jackson fell to the floor and suffered his injuries. Id. ¶ 28. Based on

these alleged facts, White-Hunt cannot assert that he did not know that Washington was

8 behaving in a “dangerous of otherwise incompetent manner.” He is alleged to have directly

witnessed the altercation. According to the pleadings, he even encouraged Washington to

confront Jackson and engage in the dangerous behavior in question. Id. ¶ 26. Consequently, the

plain meaning of the notice requirement has been met here. Furthermore, “armed with this

knowledge” that Washington was instigating a fight with a customer, White-Hunt did nothing.

While the fight may have occurred suddenly, he could have said something or intervened to stop

Washington’s actions. Taken together, these facts as plead are sufficient to state a negligent

supervision claim. 2

Furthermore, while White-Hunt is correct that few cases in the District of Columbia have

directly addressed whether a negligent supervision claim can be brought when a supervisor only

has contemporaneous notice of a subordinate’s dangerous or incompetent action, the courts that

have considered this issue uniformly concluded that such a claim can proceed. For example, in

Spicer v. District of Columbia, the court found that allegations that a prison supervisor “was

negligent in failing to adequately supervise the other officers [on] the night of the incident,” and

due to the lack of adequate supervision, “they attacked an inmate and broke his foot,” was

sufficient to show that the supervisor “knew or should have known its employee behaved in a

dangerous or otherwise incompetent manner.”

(D.D.C. 2013). Similarly, in

Godfrey v. Iverson, the D.C. Circuit upheld a jury verdict that found a basketball player liable for

negligently supervising his bodyguard when he failed to “say or do anything to try to stop” his

2 White-Hunt also claims that he cannot be held liable for negligent supervision over Washington because Washington’s conduct was not within White-Hunt’s control and managing physical altercations falls outside of his ordinary job responsibilities. Def.’s Reply at 4. However, White-Hunt does not support this assertion with a single authority. The Court finds that such an inquiry goes to the merits of the claim (i.e., whether White-Hunt adequately supervised Washington) and thus is not properly before the Court at the pleading stage.

9 bodyguard from fighting and injuring the plaintiff in nightclub brawl.

(D.C.

Cir. 2009). The jury had been presented evidence that during the melee, the basketball player

had simply stood by and observed the proceedings, and “did not say or do anything to try to stop

[his bodyguard] or anyone else from fighting.”

Based on this evidence, the jury concluded

that this was enough to find that the basketball player “knew or should have known [that his

bodyguard] behaved in a dangerous or otherwise incompetent manner.”

Moreover, the D.C.

Court of Appeals has noted in dicta, (while considering the separate question of the type of

predicate act that can properly support a common law claim of negligent supervision), that a

“negligent supervision claim predicated on a battery might be pursued under a theory that the

employer was negligent in allowing the battery to happen.” Griffin, 925 A.2d at 575–77

(emphasis added). This is precisely what Jackson has alleged here—that White-Hunt stood by

and allowed the battery to occur. Taking all of these authorities together, the Court concludes

that contemporaneous notice is sufficient to meet the notice requirement of a negligent

supervision claim.

As this Court has noted before, the plaintiff's burden at the pleading stage is “minimal.”

James,

(quoting Hopkins v. Blue Cross & Blue Shield Assoc.,

, at *7 n.1 (D.D.C. Dec. 21, 2010)). Viewing the facts in the light most favorable to

Jackson, as the Court must, Jackson’s pleadings state a claim of negligent supervision against

White-Hunt. Accordingly, the Court denies White-Hunt’s motion to dismiss on this claim.

B. Aiding and Abetting Battery

White-Hunt argues next that Jackson’s battery claim against him, brought under an aiding

and abetting theory, must be dismissed because it is time-barred by the relevant statute of

limitations. Def.’s Mot. at 8; see also

(a)(4). Jackson contends, however,

10 that his claim can nonetheless proceed because it relates back to the date of his original

complaint under Federal Rule of Civil Procedure 15(c). Pl.’s Opp’n at 12–14; see Fed. R. Civ. P.

15(c). White-Hunt disputes this assertion, arguing that the original complaint did not provide

him with adequate notice such that he knew or should have known that he would be named as a

defendant in this suit, but for a mistake on the part of Jackson. Def.’s Reply at 9–11; Pl.’s Opp’n

at 14. The Court finds that White-Hunt has the better of the argument, and that the relation-back

doctrine cannot properly be applied here.

Within the District of Columbia, claims for aiding and abetting battery must be brought

no more than one-year after the “right to maintain the action” begins to accrue.

-

301(a)(4). In this case, Jackson’s right to bring suit began to accrue on April 24, 2018, the date

of the alleged altercation. Jackson sought leave to amend to include the new battery claim

against White-Hunt on March 6, 2020, over 22 months after the alleged incident, see Pl.’s Mot.

for Leave to File Amended Complaint, ECF No. 17, and filed his amended complaint on April

24, 2020, a full two years later. See generally Am. Compl. Thus, on its face, the battery claim

against White-Hunt plainly exceeds the one-year limitations period, making it time-barred.

Under certain circumstances, however, the “relation back” doctrine enables a plaintiff to

correct a pleading error by adding a new party and new claims even after the statutory limitation

period has expired. See Fed. R. Civ. P. 15(c); United States v. Hicks,

(D.C.

Cir. 2002). Federal Rule of Civil Procedure 15(c) states that allegations in an amended

complaint may “relate back” to the date of the original complaint when three conditions are met.

First, the claims or defenses asserted in the amended pleading must have “ar[isen] out of the

conduct, transaction, or occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B). This factor is not in dispute here, as the aiding and

11 abetting battery claim brought against White-Hunt in the amended complaint clearly originates

from the same underlying event—the April 24, 2018 altercation at Starbucks—as pled in

Jackson’s original complaint. See Compl ¶ 2 (“After being pushed by [Washington], Mr.

Jackson fell and suffered a seizure; he woke up in the hospital.”); compare with Am. Compl. ¶ 28

(“As Washington and White-Hunt confronted Mr. Jackson. . . Mr. Washington moved White-

Hunt out of the way and said something to the effect of, “he gotta get out,” and then pushed Mr.

Jackson.”).

Second, when an amended complaint names a new defendant, the plaintiff must

demonstrate that the new defendant had previously “received such notice of the action” typically

within the standard 90-day period for service from the complaint’s original filing, so “that [they]

will not be prejudiced in defending on the merits.” Fed. R. Civ. P. 15(c)(1)(C)(i). It appears

somewhat likely based on the limited facts before the Court that White-Hunt received the

required notice, given that the original suit was against one of his employees and his corporate

employer, and concerned an incident to which he was a witness and occurred at the small store

he was responsible for managing. White-Hunt was also sent an evidence-preservation letter from

Jackson’s counsel shortly after the incident, asserting Jackson’s belief the incident was “the

result of a company-wide practice of discrimination” which plausibly could have put White-Hunt

on notice regarding future litigation. Am. Compl. ¶¶ 37–38; Pl.’s Opp’n at 13. Cutting against

any notice this provided, however, is the fact that the letter was a sent almost a full year before

the original complaint was filed. Additionally, “Rule 15(c) requires notice of the actual

institution of the action[,] not mere notice that an action might ensue.” Grigsby v. Johnson, No.

95-cv-213,

, at *5 (D.D.C. May 14, 1996); see also Aslandidis v. U.S. Lines,

Inc.,

(2d Cir. 1993) (“Rule 15(c) . . . require[s] notice of plaintiff’s cause of

12 action, not simply notice of the accident.”). Due to the limited facts available, even Jackson is

forced to admit that “discovery would be necessary to establish definitively when White-Hunt

learned about the original complaint.” Pl.’s Opp’n at 13. The Court declines to do so at this

time, given that Jackson is unable to meet the third requirement of the relation-back doctrine, and

will simply assume without deciding that White-Hunt received the requisite notice to fulfill this

second requirement.

The third requirement under Rule 15(c) mandates that the newly named defendant must

“know or should have known that the action would have been brought against it, but for a

mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii). The parties

hotly contest this factor, but the Court finds that Jackson fails to show both that the omission of

White-Hunt from the original complaint was a “mistake,” and that White-Hunt “knew or should

have known” that Jackson would assert a claim against him based on the information contained

in the original complaint. Accordingly, White-Hunt cannot rely on the relation-back doctrine to

cure his otherwise time-barred pleading.

This Circuit has adopted a “straightforward reading” of the “mistaken identity”

requirement of Rule 15(c)(1)(C), recognizing that the relation-back doctrine is intended to serve

as a name-correcting amendment to “avoid the harsh consequences of a mistake that is neither

prejudicial nor a surprise to the misnamed party.” Rendall-Speranza v. Nassim,

(D.C. Cir. 1997); see also Fed. R. Civ. P. 15 advisory committee note (acknowledging that

Rule 15(c)(1)(C) deals with “the problem of a misnamed defendant”). But a name correction is

not the kind of mistake Jackson attempts to remedy here.

To begin, the Court finds that Jackson did not delay in adding White-Hunt as a party as a

result of a mistaken identity. Indeed, the original complaint made direct reference to White-Hunt

13 and his role in the incident, yet he was not named as a party (either by name or as John Doe II),

nor was there any indication Jackson intended to name him as a defendant. See Compl. ¶ 17

(“As someone who appeared to be the Starbucks manager approached Mr. Jackson, Starbucks

employee [Washington] moved the manager out of the way; [Washington] then . . . pushed Mr.

Jackson.”) (emphasis added). This indicates that Jackson “had originally been under no

misimpression about the function [White-Hunt] played in the underlying dispute,” rendering

Rule 15(c) unavailable. Krupski v. Costa Crociere S. p. A.,

(2010); Ferguson

v. Loc. 689, Amalgamated Transit Union,

(D.D.C. 2009) (finding that the

requirement of mistaken identity was not met where the plaintiff was obviously aware of the

identity of the party at the time the original complaint was filed, as illustrated by multiple

references to the entity in the original complaint). Based on this, the failure to name White-Hunt

as a defendant in the original complaint cannot plausibly be construed as a case of mistaken

identity, or an accidental “slip of the pen.” Rendall-Speranza, 107 F.3d at 918–19.

Moreover, it appears far more likely that White-Hunt was only added as a defendant

following Jackson’s realization that recovery against Washington, the alleged perpetrator and

only individual defendant named in the original complaint, would be impossible given that he

passed away while this suit was pending. See Def.’s Reply at 11. This type of evidence of a

recovery-motivated use of Rule 15(c) has been found to “counter[] any implication that [the

plaintiff] had originally failed to name [the later-added defendant] because of any ‘mistake

concerning the proper party’s identity,’ and instead suggest[s] that [plaintiff] decided to name

[the new defendant] only after the fact in an attempt to ensure that the fee award would be paid.”

Krupski,

(emphasis added). Taken together, the content (and lack thereof) in

Jackson’s original complaint and his subsequent conduct “compel the conclusion” that the

14 decision to omit White-Hunt from the original complaint “was the result of a fully informed

decision as opposed to a mistake concerning the proper defendant's identity” meaning the

requirements of Rule 15(c)(1)(C)(ii) are not met.

.

Jackson attempts to assert that he made an applicable mistake for Rule 15(c) purposes by

failing to recognize that White-Hunt had acted in a negligent supervisory capacity—and thus

could be named as a defendant— until counsel obtained White-Hunt’s purportedly false incident

report White-Hunt submitted to Starbucks. Pl.’s Opp’n at 14. But this makes little sense. The

incident report does not describe any actions taken by White-Hunt during the alleged altercation

that were later added to the amended complaint to support the claim of aiding and abetting a

battery. 3 Moreover, it demonstrates a fundamental misunderstanding of the scope and purpose

of the rule. Jackson’s mistake, as he describes it, is not one about a party’s identity, but rather a

more fundamental error on the part of counsel to fully investigate the case and other liable

parties. The D.C. Circuit considered this very issue in Rendall-Speranza, and concluded that “in

the adversarial system of litigation the plaintiff is responsible for determining who is liable for

her injury and for doing so before the statute of limitations runs out; if she later discovers another

3 Jackson argues that White-Hunt’s purportedly false report “evince[s] a state of mind warranting at least an inference this he was culpable personally.” Pl.’s Opp’n at 14. To the extent that this is an argument that White-Hunt must have aided and abetted in the battery to warrant filing a report Jackson contends is false, and accordingly White-Hunt must have known he was liable to Jackson, these are huge logical assumptions to make. More importantly, it completely misunderstands the relevant standard and scope of Rule 15(c). The relevant inquiry is not whether the later-named defendant is or could have known he was liable to the plaintiff in some way. As the Supreme Court has detailed, the correct inquiry is whether a prospective defendant should have known of the possibility that he would be sued by the plaintiff based on the original complaint. See Krupski,

. Other “[i]nformation in the plaintiff’s possession”—such as the knowledge (or lack thereof) of the incident report here—“is relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake regarding the proper party’s identity.”

(emphasis added). As already established, the original complaint gave no indication White-Hunt would later be named as a defendant. Accordingly, the incident report has no bearing on this analysis.

15 possible defendant, she may not, merely by invoking Rule 15(c), avoid the consequences of her

earlier oversight.” Rendall-Speranza, 107 F.3d at 918–19 (finding that “an error of judgment

about whether an employer is liable for the act of its employee is not ‘a mistake’ within the

intendment of Rule 15(c).”). Consequently, Jackson has not properly alleged a pleading error

such that this claim can relate back.

Furthermore, Rule 15(c) is also unavailable because the Court cannot reasonably

conclude that White-Hunt “knew or should have known” that he would be named as a defendant

in Jackson’s suit based on the original complaint. Fed. R. Civ. P. 15(c)(1)(C)(ii); see also

Krupski,

. The original complaint named only Starbucks and Washington as

defendants. Given that White-Hunt was named in passing in the complaint but not named as a

culpable party, and that the original complaint did not include any aiding and abetting battery

claim, there was no reason for White-Hunt to believe that he was an intended party at the time

the original complaint was filed. Jackson does not point to any concrete evidence to argue to the

contrary.

As a result, the Court concludes that White-Hunt had no reason to believe that he would

be named as a defendant and furthermore that Jackson did not make a name correcting mistake in

the first place, barring the application of the relation-back doctrine. Consequently, Jackson’s

battery claim against White-Hunt is untimely, and must be dismissed.

C. Racial Discrimination: Section 1981 and the DCHRA

Jackson brings two final claims, pursuant to the DCHRA and Section 1981, stating that

he was unlawfully denied service on the basis of his race in an act of intentional discrimination. 4

4 Jackson’s DCHRA claim alleges that he was discriminated against not just due to his race, but also based on his personal appearance. Am. Compl. ¶¶ 78–79 (noting that “[a]t the time

16 Am. Compl. ¶¶ 76–89. White-Hunt argues that these pleadings suffer from two fatal

deficiencies. He contends that Jackson has failed to plausibly allege that White-Hunt even

participated in any discriminatory act against Jackson, and also that even if White-Hunt was

involved in such an act, the amended complaint does not claim he acted with the required

discriminatory intent. Def.’s Mot. at 12, 14. The Court disagrees, finding that the amended

complaint properly states a claim of intentional discrimination against White-Hunt under both

Section 1981 and the DCHRA.

1. Section 1981

Section 1981 protects the right of all persons within the United States to make and

enforce a contract free from racial discrimination—and thus prohibits refusals of service based

on race. 5 To establish a claim under Section 1981, a plaintiff is typically required to show that

(1) he is a member of a racial minority group; (2) the defendant had an intent to discriminate on

the basis of race; and (3) the discrimination concerned one or more of the activities enumerated

in the statute. Mitchell v. DCX, Inc.,

, 44–45 (D.D.C. 2003) (citing Morris v.

Office Max, Inc.,

(7th Cir. 1996)). The first and third elements have been met

here. Jackson is an African American man, see Am. Compl. ¶ 85, and a refusal of service is a

covered activity under the statute, see

(defining to “make and enforce

of the incident, [Jackson] appeared physically in a manner that some might interpret as being indigent, homeless, or otherwise belonging to a protected group of vulnerable people in our society.”). 5 The full text of Section 1981 reads as follows: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

(a).

17 contracts” as “the making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”). 6

Accordingly, the only element in dispute is if Jackson has sufficiently alleged that White-Hunt

intentionally discriminated against him on the basis of his race.

A review of the pleadings allows the Court to conclude that Jackson has stated a claim

that White-Hunt was personally involved in the alleged discriminatory denial of service suffered

by Jackson. Even White-Hunt agrees that “a supervisor is liable under Section 1981 where he is

personally involved in the alleged acts of discrimination.” Def.’s Reply at 7 (citing Brown v.

Children’s Nat. Med. Ctr.,

(D.D.C. 2011) (requiring “an affirmative

showing linking the individual defendant with the discriminatory action.”); see also Uzoukwu v.

Metropolitan Washington Council of Gov’ts, No. 11-cv-00391,

(D.D.C.

Feb. 8, 2016) (same). Such personal involvement has been alleged here. The amended

complaint states that it was only upon White-Hunt’s “instruction or with his encouragement” that

Washington left his position manning the cashier to approach Jackson in a manner which

“escalated the situation,” shortly thereafter announcing that Jackson “gotta get out,” and then he

pushed Jackson to the ground. Am. Compl. ¶¶ 26, 28, 86. Jackson’s allegation that Washington

6 White-Hunt initially seemed to contend that no denial of service occurred in this case. Def. Mot at 15 n.7 (“the alleged facts show that the altercation occurred because the cashier instructed Mr. Jackson he had to get in line . . . no one was denying Mr. Jackson service at Starbucks.”). This is not an accurate reflection of the pleadings, given that Jackson has alleged that he was told by Washington, “he gotta get out,” and was then pushed to the ground before he could complete his purchase, purportedly due to his race. Am Compl. ¶¶ 8–35. Giving all reasonable inferences to Jackson, as the Court must, this certainly appears to be a “complete” refusal of service. Furthermore, Section 1981 also covers situations less severe than complete denials of service, such as when a proprietor “intentionally provide[es] lesser service” due to discriminatory animus. Mitchell,

. As a result, under either standard Jackson has alleged discrimination concerning a protected activity. Tellingly, White-Hunt drops this argument in his reply.

18 took these actions upon White-Hunt’s instruction or encouragement—an affirmative act by

White-Hunt linking him to the denial of service— is enough to constitute his personal

involvement in the alleged discriminatory act at issue.

After all but conceding that Jackson has indeed plead his affirmative personal

involvement in the allegedly discriminatory actions taken against Jackson, see Def.’s Reply at 8,

White-Hunt retreats to his next argument, contending that the claim still must be dismissed

because “there is nothing to support an inference that [White-Hunt] harbored racial animus when

he allegedly took those actions.”

But this again mischaracterizes the facts as alleged in the

pleadings.

It is useful to begin with a review of the proper pleading burden a plaintiff must meet to

put forth a claim of intentional discrimination. It is undisputed that at the pleading stage, “intent,

knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P.

9(b). Moreover, a plaintiff asserting a claim of intentional discrimination need only allege facts

that “give[ ] [the defendant] fair notice of the basis for [the plaintiff's] claims.” Swierkiewicz v.

Sorema N.A.,

(2002); Nanko Shipping, USA v. Alcoa, Inc.,

(D.C. Cir. 2017) (noting a plaintiff’s Section 1981 discrimination claim pleading burden “is not

onerous.”). Consequently, “courts in this Circuit have consistently recognized the ease with

which a plaintiff claiming discrimination can survive a motion to dismiss.” Apollo v. Bank of

Am., N.A.,

(D.D.C. 2018) (citing Fennell v. AARP,

(D.D.C. 2011)).

Indeed, other courts in the D.C. Circuit have found plausible claims of intentional

discrimination sufficient to survive a motion to dismiss in situations quite similar to the case at

hand. For example, in Bonner v. S-Fer Int’l, Inc., an African American shopper brought a

19 Section 1981 claim challenging the behavior she experienced from sales associates when she

attempted to shop at a Washington D.C. Salvatore Ferragamo store. See

(D.D.C. 2016). The court there found that she had plead sufficient facts to support an inference

of racially discriminatory intent by the store employees due to her allegations that she was

“flippantly” asked if she was aware of an item's high price tag and then “rudely” asked if she was

prepared to make a purchase, after which an employee “demand[ed]” that she leave the store.

Id.; see also Apollo,

(concluding that a complaint supported a “plausible

inference of race discrimination” stemming from allegations of a “denial of bank services for

false reasons, and an unceremonious removal from the bank’s premises.”). So too in the instant

case Jackson was told that he had to pay for the dipped madeleine cookies he wished to purchase,

and that he could not hold the item while he waited in line, Am. Compl. ¶¶ 19–21, and shortly

thereafter was told that he had to leave the store—and was then physically injured when he did

not immediately leave, Am. Compl. ¶ 28. If anything, the request to leave accompanied by a use

of force—potentially made on White-Hunt’s behest—makes an inference of discriminatory

intent all the more salient here compared to the facts as plead in Bonner. Jackson has also

plead—based on Starbucks’s own corporate disclosures—that around the same time he

experienced his alleged denial of service, that Starbucks employees in other stores around the

country were treating customers in a discriminatory manner based on their race. Am. Compl.

¶¶ 56–58. This allegation, if presumed true, further strengthens the inference that Jackson was

intentionally discriminated against here. Taking all of these facts together, the Court finds that

Jackson has raised his “right to relief above the speculative level,” Twombly,

,

and has stated a plausible claim of intentional discrimination by White-Hunt. Accordingly,

White-Hunt’s motion to dismiss the Section 1981 claim is denied.

20 2. DCHRA Intentional Racial and/or Personal Appearance Discrimination Claim

Jackson’s final claim asserts that Defendants intentionally discriminated against him on

account of his race and or physical appearance in violation of the DCHRA. Am. Compl. ¶¶ 76–

83. The DCHRA makes it unlawful in the District to “deny, directly or indirectly, any person the

full and equal enjoyment of the goods, services, facilities, privileges, advantages, and

accommodations of any place of public accommodations” either “wholly or partially” on the

basis of, inter alia, “race, color, [or] personal appearance.”

(a)(1).

White-Hunt again argues that the amended complaint fails to set out a plausible claim

that White-Hunt intentionally discriminated against Jackson based on his race and or personal

appearance. But as the Court has already explained while conducting this same analysis in the

context of Jackson’s Section 1981 claim, see supra Section IV.C.1, that assertion is incorrect.

And because “[t]he legal standards applicable to race discrimination are the same under the

DCHRA and [Section] 1981,” Lemmons v. Georgetown Univ. Hosp.,

(D.D.C. 2006) (quoting Fox v. Giaccia,

, 6–7 (D.D.C. 2006)), the Court need

not conduct the same analysis twice. Consequently, Jackson’s DCHRA intentional racial

discrimination claim also survives White-Hunt’s motion to dismiss.

Jackson also brings a second DCHRA claim alleging that he was discriminated against on

the basis of his personal appearance at the time of the incident. While neither party devotes more

than a cursory reference to this claim in the briefing, largely lumping it together with Jackson’s

racial discrimination claims, the Court finds that this claim is sufficiently alleged. The amended

complaint states that “[a]t the time of the incident, Mr. Jackson appeared physically in a manner

that some might interpret as being indigent [or] homeless” and that Defendants went on to

intentionally discriminate against him on the basis of his physical appearance by physically

21 threatening him and pushing him to the ground. Am. Compl. ¶¶ 78–79. As previously

discussed, see supra Section IV.C.1, these actions were allegedly committed by Washington with

White-Hunt’s “instruction or with his encouragement.” Am. Compl. ¶¶ 26. The amended

complaint also states that Starbucks employees have in the past “treated customers in a

discriminatory manner based on their personal appearance.” Am. Compl. ¶ 57. Reading the

amended complaint liberally, as the Court must, these statements provide the required specificity

as dictated by Federal Rule of Civil Procedure 8 to give Defendants notice and thus make out a

claim that White-Hunt intentionally discriminated against Jackson on the basis of personal

appearance. Both DCHRA claims, therefore, survive White-Hunt’s motion to dismiss.

V. CONCLUSION

For the foregoing reasons, Defendant White-Hunt’s motion to dismiss (ECF No. 32) is

GRANTED IN PART and DENIED IN PART. An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.

Dated: April 8, 2021 RUDOLPH CONTRERAS United States District Judge

22