UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DWAYNE PARRIS,

Plaintiff,

v. Civil Action No. 1:20-cv-03363 (CJN)

XAVIER BECERRA,

Defendant.

MEMORANDUM OPINION

Dwayne Parris is an African-American male who was employed by the Federal Drug

Administration for approximately eight years. In his two-count Amended Complaint, he alleges

that his employer both discriminated against him and subjected him to a hostile work environment.

The Defendant argues in the Motion to Dismiss that Parris fails adequately to plead either claim.

Def. Mot., ECF No. 13. For the reasons discussed below, the Court agrees as to Count I but not

as to Count II, and Defendant’s Motion is therefore granted in part and denied in part.

I. Background

For purposes of the pending Motion, the Court accepts the facts as alleged in the Amended

Complaint. See Ashcroft v. Iqbal,

(2009).

Parris is an African-American male who was employed by the FDA as a Supervisor

Management Analyst (GS-14) for approximately eight years. Am. Compl. at 2–3, ECF No. 11.

Parris asserts that his supervisors, two African-American women, Caldwell and McClendon,

subjected him to disparate treatment and a hostile work environment on the basis of his race and

sex. Id. at 3.

1 In particular, Parris alleges that Caldwell and McClendon repeatedly referred to him as an

“angry black man” and other similar degrading racial stereotypes to other FDA employees, outside

vendors, and others. Id. at 3. And, in at least one instance, in a telephone call with Parris,

McClendon called him an “angry black man” and explained that Caldwell agreed that he fit this

racial stereotype. Id.

Parris also alleges a number of odd, demeaning, or embarrassing acts by McClendon and

Caldwell that he attributes to race and sex animus. At a staff meeting, for example, McClendon

had an outburst in which she “abruptly announced that she ‘wanted to address the elephant in the

room,’” and then explained that she and Parris had applied for the same open position but that she

had been selected—even though that had occurred a year earlier. Id. at 3–4. Parris’s supervisors

also refused to publicly acknowledge or credit him for his work even though his co-workers, who

were not African-American, did receive such public credit. Id. at 4. McClendon and Caldwell

often instructed Parris not to speak during meetings. Id. And they frequently and arbitrarily altered

his instructions and duties without sufficient time for him to adjust, which he claims put him in a

position to fail. Id. at 4–5. As one example, McClendon and Caldwell demanded that Parris check

and sort an order of over 2,000 shirts for delivery in one evening and denied his requests for

additional staff to assist. Id. Parris further alleges that his supervisors repeatedly reduced the time

he had to complete tasks and denied his reasonable requests for additional time. Id.

Parris also alleges that McClendon and Caldwell “consistently and repeatedly denied [his]

training, detail, and transfer requests” despite regularly granting such requests to his coworkers

who were not black males. Id. at 4. Parris points to several training requests in 2017 and 2018

that, he asserts, were important for his career development and his being given better assignments.

And, Parris alleges, McClendon and Caldwell required Parris to submit additional documentation

2 and justifications for additional training, even though they had not done so for Parris’s co-workers

who were not black males. Id.

In June 2018, Caldwell “strongly recommended” that Parris explore taking a low-level

position outside the federal government that offered him 35% less pay. Id. at 5. Shortly thereafter,

Parris alleges, McClendon and Caldwell gave him an “unreasonable and unfair” mid-year

performance evaluation in which they chastised him for over two and a half hours and demanded

he account for leave requests and other events from two years prior. Id.

Parris asserts that, as a result of McClendon’s and Caldwell’s conduct, he suffered harm to

his career through their improper denial of his training, detail, and transfer requests, as well as

through unreasonable and unfair performance reviews. Id. He was also asserts that he suffered

from stress, depression, sadness, and a decreased desire to socialize or go to work. Id.

In August 2018, Parris initiated the EEO complaint process and, in December 2018, he

filed a formal complaint of discrimination with the Agency. The Agency issued its final decision,

apparently denying the claim, on August 21, 2020. Id. at 2. Parris filed this suit on November 19,

2020, Compl., ECF No. 1, and filed his Amended Complaint on June 21, 2021. Id. The Amended

Complaint contains two claims: Count I, which alleges race and sex discrimination in violation of

Title VII of the Civil Rights Act of 1964, and and Count II, which alleges a hostile work

environment in violation of Title VII of the Civil Rights Act of 1964. Id. at 6–8. The Secretary

moves to dismiss both counts. Def. Mot., ECF No. 13.

II. Legal Standards

A motion to dismiss under 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,

3 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) (quotation marks omitted). While

extensive factual allegations are not necessary, a plaintiff must plead sufficient facts to “raise a

right to relief above the speculative level.”

When ruling on a Rule 12(b)(6) motion, the Court may consider only “the facts alleged in

the complaint, documents attached as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.” Gustave–Schmidt v. Chao,

(D.D.C. 2002). The Court must construe the complaint liberally in the plaintiff’s favor

and grant the plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal

v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). However, the Court must not

accept a plaintiff’s inferences that are “unsupported by the facts set out in the complaint.”

“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft

v. Iqbal,

(2009). Recitals of “the elements of a cause of action, supported by

mere conclusory statements,” do not suffice.

.

III. Analysis

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for

an employer . . . to 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). Courts have elucidated this prohibition into different

causes of action depending on the type of discrimination and harm. Parris asserts both a

discriminatory treatment claim, which applies to tangible harms stemming from a discriminatory

intent, as well as a hostile-work environment claim, which requires an objectively and subjectively

hostile or abusive environment but does not necessarily require a specific job-related event.

4 a. Discriminatory Treatment Claim

A Title VII claim for discriminatory treatment requires that a plaintiff ultimately show that

the defendant had a discriminatory motive for taking a specific job-related action against the

plaintiff. U.S. v. Brennan,

, 89–90 (quoting Ricci v. DeStefano,

(2009). At this stage of the litigation, a plaintiff making such a claim must allege that he (1)

suffered an adverse employment action (2) because of his race and/or sex. See Hill v. Garland,

, at *6 (D.D.C. Mar. 15, 2021) (citing Baloch v. Kempthorne,

(D.C. Cir. 2008)).

The Secretary’s primary argument with respect to Count I is that Parris has failed to plead

that he suffered an “adverse employment action.” As defined by the Court of Appeals, 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 changes in benefits.” Broderick v. Donaldson,

(D.C. Cir. 2006)

(quoting Taylor v. Small,

(D.C. Cir. 2003)). “Purely subjective injuries, such

as dissatisfaction with a reassignment or public humiliation or loss of reputation, are not adverse

actions” for a discriminatory treatment claim. Forkkio v. Powell,

, 1130–31 (D.C.

Cir. 2002) (internal citations omitted). 1 The Secretary argues that Parris’s alleged harms are

limited to subjective injuries, such as public humiliation, rather than adverse employment action,

such as being denied a promotion or a significant reassignment.

1 The Court of Appeals is currently reconsidering whether forced lateral transfers must have “objectively tangible harm” to constitute an adverse employment action. Chambers v. D.C., No. 19-7098,

, at *1 (D.C. Cir. May 5, 2021) (granting en banc review to reconsider Brown v. Brody,

(D.C. Cir. 1999)). Here, there is no allegation of a lateral transfer, but the relevant standard for what constitutes an adverse employment action may be in flux.

5 Parris responded to this argument in a largely conclusory fashion. He argues that the

Amended Complaint alleges the “denial of training opportunities among other thing[s] which

constitute . . . grounds for his disparate treatment claim.” Pl. Opp. to Mot. at 11–12, ECF 15.

Parris acknowledges that the Secretary contends that the mere denial of training opportunities—

without an allegation of resulting material effect on pay, hours, responsibilities, or promotion

opportunities—does not constitute an adverse employment action.

Parris’s response is that he

“alleges more than the denial of training”—he claims that he has alleged that the denials of training

affected his ability to perform his current job duties and his work performance.

at 12 (citing

Am. Compl. ¶¶ 12, 14). As Parris puts it, the denials of training “affected his ability to perform

his job duties, to wit, training related to ongoing job performance and contradictory and

overbearing instructions that impeded his work performance.”

And, without citing the

Amended Complaint, Parris argues that it “alleges that the denial of training was directly related

to, and contemporaneous with his performance of specific job assignments—and therefore resulted

in tangible, negative impact on his job responsibility.” Id. at 13.

The Court agrees with the Secretary. Accepting the allegations in the Amended Complaint

as true and accepting all reasonable inferences in his favor, Parris has not alleged an adverse

employment action. He does not assert he was fired, denied a promotion, given significantly

different responsibilities, or that any act caused a significant change to his benefits.

The closest that Parris gets is the claim that his supervisors denied his requests for

additional job training. Such a denial could constitute an adverse employment action, but only if

the denial “affected some material change in [the employee’s] employment conditions, status or

benefits.” Walker v. Mattis,

(D.D.C. 2018) (quoting Lester v. Natsios,

(D.D.C. 2003)). Put another way, the denial of a training opportunity must

6 result in an objectively tangible harm to suffice as an adverse employment action. Edwards v.

EPA,

(D.D.C. 2006) (“[T]o be adverse, the denial of a travel or training

opportunity must have a discernible, as opposed to a speculative, effect on the terms, conditions,

or privileges of one’s employment.”).

But Parris does not allege that any objective harm resulted from the denial of his requests

for training. He does not allege that the denials prevented a promotion or pay raise, led to a

reduction in pay, resulted in his termination, or otherwise caused the kind of harm that would itself

be an adverse employment action. Rather, Parris argues simply that the training were “imperative”

for his career development, but points to no actual detriment to his employment or career. Am.

Compl. at 4.

To be sure, the Amended Complaint does allege that the denials of training opportunities

“adversely impacted Plaintiff’s ability to work in his current role and also his future employment

opportunities.” Am. Compl. at 3, see id. at 4. But these are conclusory and generic allegations,

not allegations of tangible or objective harm. As to his “future employment opportunities,” he

does not claim, for example, that he was denied a job inside or outside the FDA, or that he was

discouraged from applying because he knew he would be rejected because of his lack of training.

And as to his ability to perform his job, while Parris does allege he was given unachievable tasks,

he does not allege any “materially adverse consequences” or “objectively tangible harm” that

occurred as a result. Holcomb v. Powell,

(D.C. Cir. 2006) (quoting Forkkio,

). Parris may be able to allege such harm, but the Amended Complaint fails to

do so.

7 b. Hostile Work Environment Claim

To survive a motion to dismiss, a Title VII hostile work environment claim must allege

that the plaintiff “(1) . . . is a member of a protected class; (2) . . . was subjected to unwelcome

harassment; (3) the harassment occurred because of the plaintiff’s protected status; (4) the

harassment was severe to a degree which affected a term, condition, or privilege of employment;

and (5) the employer knew or should have known about the harassment, but nonetheless failed to

take steps to prevent it.” Peters v. District of Columbia,

(D.D.C. 2012).

The Secretary argues that Parris has failed to allege conduct that was sufficiently severe or

pervasive. For harassment to be sufficiently severe, “the workplace [must be] permeated with

discriminatory intimidation, ridicule and insult that is sufficiently severe and pervasive to alter the

conditions of [his] employment and create an abusive working environment.” Harris v. Forklift

Sys., Inc.,

(1993) (quotation marks and citations omitted). “Severity and

pervasiveness are determined by reference to ‘all the circumstances,’ including ‘the frequency of

the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Baird v. Gotbaum,

(D.C. Cir. 2015) (quoting Harris v. Forklift

Sys., Inc.,

(1993)).

The Secretary contends that the Amended Complaint describes a typical workplace

environment that sometimes can be demanding and in which some co-workers or supervisors may

at times be inconsiderate or less than tactful. See Brooks v. Grundmann,

(D.C. Cir. 2014) (plaintiff failed to establish a hostile work environment based on allegations

showing that “her superiors and colleague may have been tactless and ill-mannered.”). The

Secretary emphasizes that the relevant standard is “demanding” in order “to ensure that Title VII

8 does not become a general civility code” and “filter out complaints attacking the ordinary

tribulations of the workplace.” Faragher v. City of Boca Raton,

(1998).

Parris responds by pointing to the portions of the Amended Complaint that allege that his

supervisors “repeatedly” referred to him as an “angry black man” and other racial stereotypes, and

they “consistently and repeatedly” denied Plaintiff’s various requests for training, detail, and

transfers despite non-black male co-workers having been granted such requests. Am. Compl. at

4. Parris also argues that McClendon “often” instructed him not to speak at meetings and refused

to acknowledge or credit him for his work.

And, he alleges, his supervisors “frequently”

altered their instructions to him without sufficient time for him to adjust.

Parris also alleges a

number of episodes in 2018, including when he was called an “angry black man,” received an

unfair performance evaluation, and a particular instance in which his supervisors altered their

instructions.

Again, the Court must construe all reasonable inferences from the allegations in Plaintiff’s

Amended Complaint in his favor. Parris has alleged, inter alia, repeated use of offensive racial

stereotypes by his supervisors, repeated insults through being prohibited to talk at meetings,

repeated differential treatment regarding work-related requests, and frequent changes to his

assignments in a manner designed for him to fail. Based on these allegations, a jury could conclude

that Parris was subjected to sufficiently severe and pervasive insult and ridicule such that the

conditions of his employment were abusive.

The Secretary construes the complaint as referring to a handful of isolated incidents over a

period of approximately eight years. See Def. Mot. at 14–15. Not so. While Parris worked for

the Agency for approximately eight years, the Complaint involves facts primarily in 2017 and

9 2018. Am. Compl. at 3–5. And, as noted, Parris does not allege only isolated incidents, but

frequent and repeated conduct.

While it is true that the standard for ultimately proving a hostile work environment claim

is “demanding,” see Faragher,

, at the motion to dismiss stage, inferences must be

construed in favor of Parris. And although plaintiffs must typically provide evidence that goes

beyond work-reassignments and boorish management styles, see Román v. Castro,

(D.D.C. 2016); Allen v. Napolitano,

(D.D.C. 2011)

(holding “plaintiff's allegations are not sufficiently severe or pervasive” where plaintiff alleged,

among other things, that she was excluded from meetings and not selected for a position, but did

“not even allege that she was subject to a negative attitude or unkind words.”); Nurriddin v. Bolden,

(D.D.C. 2009) (“[T]he removal of important assignments, lowered

performance evaluations, and close scrutiny of assignments by management [cannot] be

characterized as sufficiently intimidating or offensive in an ordinary workplace context.”); Na’im

v. Rice,

(D.D.C. 2008) (finding that plaintiff’s low performance ratings

and non-selection for a position do not constitute a hostile work environment), or a single use of a

racial slur, see Tovihlon v. Allied Aviation, Inc.,

, 17–18 (D.D.C. 2018) (even if

supervisor used racial slur on one occasion in reference to African-American employee, such

incident, standing alone, was insufficient to establish prima facie case of hostile work

environment), Parris has alleged his supervisors repeatedly used racial stereotypes and undertook

frequent and various demeaning actions. At this stage of the litigation, that is enough. See Wise

v. Ferriero,

, 126–27 (D.D.C. 2012) (hostile work environment claim survived

a motion to dismiss, “if not by much,” based on allegations that a supervisor used a racial slur, as

10 well as “myriad incidents ranging from threats of discipline based on false accusations to being

singled out and excluded from trainings and award ceremonies and denied promotions”).

Parris must ultimately support his allegations by record evidence, and to survive summary

judgment he will need to produce evidence that his supervisors, who are black women, were

actually motivated by his race or sex. But the Court cannot now conclude that his hostile-work-

environment claim should be dismissed.

IV. Conclusion

The Amended Complaint adequately alleges a hostile work environment claim, but it fails

to state a claim for discriminatory treatment. An Order will be issued contemporaneously with

this memorandum.

DATE: February 2, 2022 CARL J. NICHOLS United States District Judge

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