UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TERRANCE WILLIAMS,

Plaintiff, v. Civ. Action No. 19-2636 (EGS) TURNER SECURITY, INC., 1

Defendant.

MEMORANDUM OPINION

Plaintiff Terrance Williams (“Mr. Williams”), proceeding

pro se, brings this lawsuit against Turner Security, Inc.

(“Turner Security”) alleging: (1) retaliation under Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2

et seq.; (2) violation of

; (3) violations of the

“D.C. Compensation Act”; (4) violations of the National Labor

Relations Act (“NLRA”); and (5) the D.C. Family Medical Leave

Act (“DCFMLA”),

et seq. See Am. Compl., ECF

1 Defendant states that Plaintiff improperly identifies Turner Services Inc. as the defendant, but because Plaintiff was employed by Turner Security, Inc. (a sister company to Turner Services, Inc.), Turner Security, Inc. is the proper defendant. Accordingly, the Court, sua sponte, ORDERS the substitution of the proper defendant, Turner Security, Inc. See, e.g., Sampson v. D.C. Dept of Corr.,

(2014) (sua sponte ordering substitution of the District of Columbia where plaintiff had named the D.C. Department of Corrections).

1 No. 19 at 3, 8, 9. 2 Pending before the Court is Turner Security’s

Motion to Dismiss. See ECF No. 22-1. Upon consideration of the

motion, opposition, the reply, the applicable law, and the

entire record, Turner Security’s Motion to Dismiss is GRANTED.

I. Factual Background

Mr. Williams alleges that he was discriminated against when

he was terminated in “retaliation for whistleblowing and

challenging questionable business practices.” Am. Compl., ECF

No. 19 at 3. He alleges that his 2018 performance goals included

responsibilities that were not part of his position description.

Id. at 5. Mr. Williams alleges that between April 25, 2018, and

December 2018, he voiced concerns to management about being

required to perform duties that were inconsistent with his

position description, but he received no response to his

concerns and instead was assigned additional extra duties. Id.

at 6. He alleges that he discussed his concerns with Turner

Security’s Human Resources Department, leadership, and other

concerned employees. Id. at 8.

Mr. Williams alleges that from January to March 2019, he

was on short term disability, and upon his return to work he

“was asked to sign a document stating that Turner Security had

2 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF page number, not the page number of the filed document.

2 to the ability to revise and change company policy without

notifying staff of the changes.” Id. at 6. He alleges that he

was not given enough time to review the updates to the Operation

Manual, and that he refused to sign the document. Id. Mr.

Williams alleges that thereafter, he was terminated “without

cause.” Id. at 7.

Mr. Williams alleges that in March 2019, he attempted to

file for unemployment benefits, but that his request was denied

because Turner Security stated that he had been terminated due

to “gross misconduct.” Id. at 7. He further alleges that his

appeal of the denial was resolved in his favor because Turner

Security did not provide evidence of misconduct. Id. at 7-8.

Finally, Mr. Turner alleges he filed a claim with the

District of Columbia Office of Human Rights. Id.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). 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. v. Twombly,

, (2007) (internal quotation marks omitted).

3 Despite this liberal pleading standard, to 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)

(internal quotation marks omitted). “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). A

claim is facially plausible when the facts pled in the complaint

allow the court to "draw the reasonable inference that the

defendant is liable for the misconduct alleged."

The

standard does not amount to a "probability requirement," but it

does require more than a "sheer possibility that a defendant has

acted unlawfully."

"[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint." Atherton v.

D.C. Office of the Mayor,

(D.C. Cir. 2009)

(internal quotation marks omitted). In addition, the court must

give the plaintiff the "benefit of all inferences that can be

derived from the facts alleged." Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994). A "pro se complaint is

4 entitled to liberal construction." Washington v. Geren,

(D.D.C. 2009) (citation omitted). Even so,

"[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements" are not sufficient to

state a claim. Iqbal,

.

III. Analysis

A. Mr. Turner Has Failed to State a Claim for Retaliation 3

Under Title VII, it is unlawful for an employer to: (1)

“discriminate against any individual with respect to [his]

compensation, terms, conditions, or privileges of employment,

because of [his] race, color, religion, sex, or national

origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any

individual for participating in a protected activity, 42 U.S.C.

§ 2000e-3(a). To establish a prima facie claim of retaliation,

the plaintiff must allege that he engaged in activity protected

by Title VII, the employer took adverse action against him, and

the employer took that action because of the employee's

protected conduct. Hamilton v. Geithner,

(D.C. Cir. 2012).

3 It is unclear whether Mr. Williams exhausted his administrative remedies with regard to his retaliation claim. However, even assuming that he did exhaust his administrative remedies with regard to this claim, he has failed to state a claim for retaliation.

5 Mr. Williams alleges that his termination was in

retaliation for challenging “questionable business practices.”

Am. Compl., ECF No. 19 at 3. Those practices are that: (1) he

was required to perform duties that were not part of his job

description; and (2) he was required to sign a document

regarding his employer’s ability to make changes to company

policy, but he was not given enough time to review the document.

Id. at 6. However, complaining about being required to perform

duties that are inconsistent with his job activities and not

being given enough time to review a document are not protected

activities. See Watson v. D.C. Water & Sewer Authority, No. CV

16-2033 (CKK),

, at *15 (D.D.C. Nov. 15, 2018),

aff’d,

(D.C. Cir. 2019) (noting that

“complaining about unfair treatment is not a protected

activity”) (internal quotation marks omitted).

In his opposition briefing, Mr. Williams states that his

“request for equitable leave practices was disregarded.” Opp’n

ECF No. 24 at 3. However, his Amended Complaint contains no

allegations regarding this request. See generally Am. Compl.,

ECF No. 19. Furthermore, Mr. Williams does not respond to Turner

Security’s argument that he has not alleged facts that would

amount to protected activity, see Def.’s Motion to Dismiss

(“Def.’s Mot.”), ECF No. 22-1 at 9-10; focusing instead on the

fact that he was terminated, see Pl.’s Opp’n, ECF No. 24 at 3.

6 Accordingly, Mr. Williams has conceded this argument. See

Haraway v. D.C., No. 14-1273 (RJL),

, at 5

(D.D.C. Aug. 31, 2015), aff’d, No. 15-7095,

(D.C.

Cir. Jan. 4, 2016) (summarily affirming dismissal of claims pro

se plaintiffs failed to address in response to dispositive

motion). For all of these reasons, Mr. Williams’s retaliation

claim is DISMISSED.

B. Mr. Williams Has Failed to State a Claim Under

“Under

, [a]ll persons within the

jurisdiction of the United States shall have the same right ...

to make and enforce contracts, which includes the making,

performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of

the contractual relationship.” Stafford v. George Washington

Univ., No. 18-CV-2789 (CRC,

, at *18 (D.D.C. June

5, 2019) (internal quotation marks omitted). “‘To establish a

claim under § 1981, a plaintiff must 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.’” Id. (quoting Mitchell v. DCX, Inc.,

, 44–45 (D.D.C. 2003) (citation omitted and

first alteration added).

7 Mr. William’s amended complaint contains no allegations

that would establish a claim that Turner Security intended to

discriminate against him based on his race, or that he was

discriminated against with regard to a contractual relationship.

See generally Am. Compl., ECF No. 19. Furthermore, his

Opposition briefing fails to respond to this argument and so the

Court will treat this argument as conceded. See Haraway,

, at 5. For these reasons, Mr. Williams’s claim under

is DISMISSED.

C. Mr. Williams Fails to State a claim for Wrongful Termination

Construing his Amended Complaint liberally, it appears that

Mr. Williams alleges a cause of action for wrongful termination

because he states he was terminated “without cause.” Am. Compl.,

ECF No. 19 at 5. Turner Security argues that this claim fails

because Mr. Williams was an at-will employee, and he has not

alleged that a contract governed his employment. Def.’s Mot.,

ECF No. 22-1 at 11. Turner Security attaches an excerpt from the

Security Operations Manual (“Manual”) to its motion, pointing

out that the manual states that “[s]ecurity officers are at-will

employees and are not subject to provisions that may be

applicable to employees under contract.”

Mr. Williams

responds that the Manual provided is from 2016, whereas it is

updated annually. Pl.’s Opp’n, ECF No. 24 at 4. Mr. Williams

8 points out that the Manual refers to “progressive” discipline,

which was not used when he was terminated.

He also argues

that while the Manual states that progressive discipline may be

inappropriate where the violation is severe, he was terminated

merely because he asked if he could read the Manual before

signing it.

The Court may properly consider the excerpt from the Manual

as Mr. Williams cites it in his Amended Complaint and apparently

intended to attach it as Exhibit A to the Amended Complaint. See

Hinton v. Corrections Corp. of Am.,

(D.D.C. 2013) (the court may also consider “documents upon which

the plaintiff’s complaint necessarily relies even if the

document is produced not by the plaintiff in the complaint but

by the defendant in a motion to dismiss”) (internal quotations

omitted). Mr. Williams does not dispute the authenticity of the

Manual, although he notes that it is updated annually, pointing

to the language regarding progressive discipline. Pl.’s Opp’n,

ECF No. 24 at 8.

In the District of Columbia, all employment is presumed to be terminable at-will “unless a contrary contractual intent is clearly expressed.” Turner v. Fed. Express Corp.,

(D.D.C. 2008). “The presumption of at-will employment is rebutted only where the parties clearly state an intention to place limits on the employer's right to terminate.”

Such clear intent may be reflected in an employer's personnel manual or employment handbook, thereby giving rise to

9 an implied contract. See Clampitt v. Am. Univ.,

(D.C. 2008). A personnel manual creates an implied employment contract when, as pertinent here, it sets out preconditions that must be met before termination of employment, Strass v. Kaiser Found. Health Plan,

, 1013–14 (D.C. 2000), and when the employer publishes or distributes the personnel manual containing those preconditions to all employees, see Clampitt,

. Employers may, however, “effectively disclaim any implied contractual obligations arising from such provisions.” Boulton v. Inst. of Int'l Educ.,

(D.C. 2002). “The legal effect of such a disclaimer is, in the first instance, a question for the court to decide.”

Howard v. Fed. Express Corp.,

(D.D.C.

2017).

Here, the Manual states as follows: “This policy is not

intended to restrict or interfere with the Company’s right to

terminate or suspend employment without cause and without notice

or in accordance with the terms of written employment contracts,

if applicable. Security officers are “at will” employees and are

not subject to provisions that may be applicable to employees

under contract.” Manual, ECF No. 22-2 at 3-4. The Manual will

“create[] an implied contract” if “it sets out preconditions

that must be met before termination of employment.” Howard, 280

F. Supp. at 30. The Manual states that “[t]here will be certain

instances in which progressive discipline is not appropriate due

to the severity of the violation. In those cases, some of the

10 steps described below may be condensed, omitted or bypassed.”

Manual, ECF No. 22-2 at 4. Because the Manual does not require

“preconditions that must be met,” it does not create an implied

contract. And even if the Manual created an implied contract,

Turner Security has effectively disclaimed any contractual

obligations arising from the Manual by stating that: (1)

security officers are “at will” employees and (2) progressive

discipline is not appropriate in all instances. For these

reasons, Mr. William’s claim for wrongful termination is

DISMISSED.

D. Mr. Williams Cannot State a claim Under The National Labor Relations Act

Construing his Amended Complaint liberally, it appears that

Mr. Williams alleges a violation of the NLRA. See Am. Compl.,

ECF No. 19 at 8 (alleging that he discussed his concerns with

other “concerned employees” and citing

).

“Section 7 of the [NLRA] preserves employees' rights ‘to self-

organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own

choosing, and to engage in the other concerted activities for

the purpose of collective bargaining or other mutual aid or

protection.’” Parks v. Giant of Maryland, LLC,

(D.D.C. 2018) (quoting

). “Section 8, in

turn, makes it ‘an unfair labor practice for an employer ... to

11 interfere with, restrain, or coerce employees in the exercise of

the rights guaranteed in [Section 7] . . ..’”

(quoting

(a)(1). However, “[t]he Supreme Court has held that

‘[w]hen an activity is arguably subject to Section 7 or Section

8 of the [National Labor Relations Act], the States as well as

the federal courts must defer to the exclusive competence of the

National Labor Relations Board.’

(quoting San Diego Bldg.

Trades Council v. Garmon,

, (1959). Mr.

Williams fails to respond to this argument in his Opposition

briefing, see generally Opp’n, ECF No. 24; and so he has

conceded this argument. See Haraway,

, at 5. For

these reasons, any claim Mr. Williams asserts under the NLRA is

preempted and the claim is DISMISSED.

E. Mr. Williams Has Failed to State a Claim Under the “D.C. Compensation Act”

Mr. Williams alleges violations of the “D.C. Compensation

Act.” Am. Compl., ECF No. 19 at 3. The facts which support this

claim are his allegations that in March 2019, he attempted to

file for unemployment benefits, that his request was denied

because Turner Security stated that he had been terminated due

to “gross misconduct,” and that his appeal of this denial was

resolved in his favor because Turner Security did not provide

evidence of misconduct.

. Mr. Williams alleges that

“[t]he ‘denial’ of [his] request for unemployment benefit[s]

12 presented a violation in itself when the appeal was ruled in

[his] favor.”

. Turner Security argues that there is no

“D.C. Compensation Act” in the District of Columbia Code or

Municipal Regulations. See Def.’s Mot., ECF No. 22-1 at 13-14.

Unemployment compensation in the District of Columbia is

governed by

. Mr. Williams alleges that his

appeal of the denial of benefits was resolved in his favor. He

has provided no legal authority, however, for his argument that

Turner Security violated D.C. unemployment compensation laws

when his claim was initially denied. Furthermore, Mr. Williams

fails to respond to Turner Security’s argument in his opposition

briefing, see generally Opp’n, ECF No. 24; and so he has

conceded the argument. See Haraway,

, at 5. For

these reasons, Mr. Williams’s claim under the “D.C. Compensation

Act” is DISMISSED.

F. Mr. Williams Has Failed To State a claim Under the D.C. Family Medical Leave Act

Construing his Amended Complaint liberally, it appears that

Mr. Williams alleges a violation of the D.C. Family Medical

Leave Act (“DCFMLA”),

et seq. See Am. Compl.,

ECF No. 19 at 9 (alleging that “[w]hen [he] returned to work in

March 2018, his position description, additional policies,

security operations manuals . . .and . . daily operations logs

were revised.”). Turner Security argues that if Mr. Williams is

13 “alleg[ing] that he was not restored to his position, he may

[be] attempt[ing] to state a claim for interference under the

DCFMLA,” but that he has failed to state a prima facie claim

because he has only alleged that “he went out on a short term

disability leave, and when he returned, his position description

was revised.” Def.’s Mot., ECF No. 22-1 at 15.

Under the DCFMLA, an employee can assert a retaliation

claim. See Thomas v. D.C.,

(D.D.C.

2016). To state a retaliation claim, Mr. Williams must allege

that “(1) he exercised rights afforded by the [DCFMLA], (2) that

he suffered an adverse employment action, and (3) that there was

a causal connection between the exercise of his rights and the

adverse employment action.”

.

Here, Mr. Williams alleges that from January to March 2019,

he was on short term disability, and upon his return to work he

“was asked to sign a document stating that Turner Security had

to the ability to revise and change company policy without

notifying staff of the changes.” Id. at 6. Mr. Williams alleges

that he was not given enough time to review the updates to the

Operation Manual, and that he refused to sign the document. Id.

Mr. Williams alleges that “his position description, additional

policies, security operations manuals . . .and . . daily

operations logs were revised,” Id. at 9; and that after he

returned to work and refused to sign the document, he was

14 terminated “without cause.” Id. at 7. While Mr. Turner alleged

that “he was on short term disability,” he has not alleged that

he took leave under the DCFMLA. See generally Am. Compl., ECF

No. 19. Furthermore, Mr. Williams fails to respond to this

argument in his opposition briefing, see generally Opp’n, ECF

No. 24; and so he has conceded this argument. See Haraway,

, at 5. For all of these reasons, Mr. Williams’s

DCFMLA claim is DISMISSED.

IV. Conclusion

For the reasons stated above, Turner Security’s Motion to

Dismiss is GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 29, 2021

15