UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JAYSON POLAND, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-2031 (TSC) ) DISTRICT OF COLUMBIA WATER ) AND SEWER AUTHORITY, ) ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Jayson Poland has sued his employer, the District of Columbia Water and Sewer

Authority (“DC Water”), for race discrimination, retaliation, and hostile work environment, in

violation of Title VII of the Civil Rights Act of 1964 and the District of Columbia Human Rights

Act (“DCHRA”), and for deprivation of his equal protection rights under the Fifth Amendment

of the United States Constitution. ECF No. 20, Amended Complaint (“Am. Compl.”) at 1. DC

Water has moved to dismiss Poland’s lawsuit, arguing that he has failed to state a valid claim for

relief pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 22, Def. Mot. at 1. For

reasons explained below, the court will GRANT IN PART and DENY IN PART DC Water’s

motion.

I. BACKGROUND

Poland is a White male who has been employed by D.C. Water since March 7, 2005.

Am. Compl. ¶¶ 6, 8. He alleges that from 2006 to 2012, and from 2014 to 2015, he was

“repeatedly . . . subjected to harassment due to his race, which has included, but is not limited to,

racial slurs directed at Poland, pejorative comments about Caucasians in Poland’s presence,

Page 1 of 22 threats of violence towards Poland, destruction of Poland’s property and physical violence

against Poland.” Id. ¶ 11.

A. Poland’s Interactions with Co-Workers From 2006 to 2012

Poland claims that the discrimination and harassment began in the summer of 2006. He

alleges that he was working with another DC Water employee, Gary Clifton, on a project in

Anacostia Park when Clifton said that he would take Poland to the “hood” and let his son “beat

[Poland] up.” Id. ¶¶ 12-13. Poland asserts that Clifton is African American, id. ¶ 318, and that

his “threat” was “motivated by Poland’s race,” id. ¶ 14. Poland states that he reported this

incident to his supervisor, Anthony Richards, who is also African American, id. ¶ 64-65, but

Richards took no disciplinary action against Clifton, id. ¶ 16.

In February 2007, Clifton allegedly complained to DC supervisors that Poland was given

preferential treatment and referred to Poland as “the white boy.” Id. ¶¶ 17-18. Poland claims

that later that month, Clifton slashed the tires on his car “because of Poland’s race.” Id. ¶¶ 22,

30. Poland reported the incident to security, id. ¶ 25, but DC Water took no action against

Clifton, id. ¶ 31.

In the spring of 2007, another DC Water employee, Michael Ratiff, who is African

American, allegedly said to Poland, “Why won’t you hand out my business cards? I’ll crack

your skull open you cracker motherfucker.” Id. ¶¶ 32-33. Poland claims that he reported this

incident to his supervisor Richards, but Ratiff was not punished. Id. ¶¶ 35-36.

A year and a half later, in September 2008, DC Water employee Jonathan Wiley, who is

African American, asked Dunbar Regis, DC Water’s Inspection and Maintenance Manager, to

give him one of Poland’s overtime assignments. Id. ¶¶ 23, 38. Poland alleges that Regis, in

granting Wiley’s request, was “motivated by Poland’s race.” Id. ¶¶ 39-40. According to Poland,

Page 2 of 22 this prompted an argument between himself and Wiley, during which “African-American D.C.

Water employees restrained Poland.” Id. ¶¶ 41-43. He alleges that during the altercation, and

while he was restrained, DC Water employees, “motivated by Poland’s race,” used “profane

language,” “threatened to physically harm him,” and called him a “white cracker.” Id. ¶¶ 44-46,

48. He also claims that Richards heard someone call Poland a “white cracker” but took no

action. Id. ¶ 50. DC Water subsequently punished Poland for misconduct, a decision that

Poland believes was motivated by his race. Id. ¶¶ 54-55.

Over two years later, on November 17, 2010, Corey Roberson, a DC Water employee,

who was one of Poland’s supervisors at the time and who is African American, allegedly

“threatened Poland and prevented him from exiting a DC Water building.” Id. ¶¶ 56-57. Based

on Poland’s “information and belief,” “Roberson never threatened or attempted to intimidate any

of his other supervisors,” all of whom were African American, and his actions directed at Poland

“were motivated by a racial animus he holds towards Caucasians.” Id. ¶¶ 58, 62-63. Poland

reported Roberson’s actions to the on-site security guard, who is African American, but she

allegedly took no action “because of Poland’s race.” Id. ¶¶ 64-69. Poland believes that his

supervisor Richards “was aware of the Roberson incident, but took no action in response.” Id. ¶

71.

Almost two years later, in July 2012, DC Water employee Nicole Parker, who is African

American, sought a restraining order against Poland, which Poland claims was “because of

Poland’s race.” Id. ¶¶ 51, 73. The judge reportedly denied the request and dismissed the

complaint. Id. ¶¶ 77-78. Poland alleges that DC Water knew Parker’s actions were motivated by

Poland’s race but took no action against her. Id. ¶¶ 81-82.

Page 3 of 22 The next month, another DC Water employee, Pernell Gethers, who is African

American, allegedly yelled at Poland and stated, “this fucking white judge locked up my son,

that’s why I’m mad at you.” Id. ¶¶ 83-84. DC Water suspended Gethers for two days for using

profanity and for threatening conduct but, upon Poland’s “information and belief,” the

punishment did not account for Gethers’ “racial comment” about a “white judge.” Id. ¶¶ 85-86.

B. Poland’s Confrontation with Montgomery, Suspension, and Transfer in 2014

Poland alleges that more than two years later, on November 9, 2014, he received a

complaint from a member of the public that a DC Water employee was parked in a Denny’s

restaurant parking lot. Id. ¶¶ 87, 96-103. Poland confronted his co-worker Donald Montgomery,

who is African American, about the complaint, and Montgomery admitted that he had been in

the parking lot watching DVDs. Id. ¶¶ 88, 105, 108. The next day, during an all-crew meeting,

Poland related the complaint about Montgomery. Id. ¶ 117. As Poland spoke, Montgomery

purportedly “became extremely agitated” and told Poland to “shut the fuck up.” Id. ¶¶ 118, 120.

Poland reports that he approached Montgomery, but then left the room “to allow the situation to

de-escalate.” Id. ¶¶ 123, 132.

On November 26, 2014, Poland met with his supervisors Richards and Regis to discuss

the November 10, 2014, confrontation. Id. ¶¶ 182-83. During the meeting, Regis gave Poland a

letter summarizing the findings of DC Water’s investigation into the incident and proposing that

Poland be suspended for twenty days. Id. ¶¶ 135, 148, 182. The letter explained that DC Water

had investigated the incident, and Montgomery had reported to DC Water officials that Poland

said, “I am going to fuck you up, I am going to smash your head in, I know where you live.” Id.

¶ 140. Several other employees corroborated Montgomery’s story. Id. ¶ 142. These employees

also said that Poland “aggressively attempted to attack Mr. Montgomery to the point of having to

Page 4 of 22 be restrained by both Rickie Banks and then after initially being stopped continued a second time

before being stopped by Jeffrey Coleman.” Id. Poland denies this account of events, but

admitted that he engaged in “unprofessional conduct,” and cursed at and approached

Montgomery. Id. ¶¶ 123, 146-47.

Poland believes that the proposed twenty-day suspension was too severe and reflects a

“double standard.” Id. ¶ 170. He claims that a year and a half earlier, in February 2013,

Montgomery used “profanity in a threatening and menacing manner,” but was not suspended and

instead was required to attend counseling. Id. ¶ 172. He also contends that Montgomery should

have been punished for “fabricat[ing] the threat allegations.” Id. ¶ 171. After being informed of

his impending suspension, Poland told Richards and Regis that “he believed he was being

discriminated against because of his race.” Id. ¶ 184.

Around December 8, 2014, Regis informed Poland that he was being transferred from his

position as Sewer Foreman to the Customer Service Department. Id. ¶ 189. Regis told Poland

the purpose of the transfer was for “cross training.” Id. ¶ 190. But, according to Poland, Regis

transferred Poland at the instruction of Richards and Dozier as punishment for Poland’s

questioning whether his suspension was motivated by race. Id. ¶¶ 193, 195. Poland alleges that

other Sewer Foremen who were African American were not transferred to the Customer Service

Department, and that once there, he lost the opportunity to work overtime shifts, resulting in a

decrease in his compensation. Id. ¶¶ 197-99, 205-07.

On December 23, 2014, Cuthbert Braveboy, the Director of Sewer Services, who is

African American, issued a Notice of Suspension to Poland, officially suspending him for twenty

workdays, beginning on December 24, 2014, and ending on January 26, 2015, as punishment for

Poland’s conduct at the November 10, 2014, meeting. Id. ¶¶ 176-77, 237, 365, 371.

Page 5 of 22 C. Allegations Against Poland in 2015

On or about February 27, 2015, DC Water Investigator Eric Gainey met with Poland

about a February 10, 2015, email regarding overtime justification reports. Id. ¶¶ 211, 213-14.

Gainey questioned whether Poland had inappropriately disseminated that email to other

individuals, causing “a workplace disturbance.” Id. ¶¶ 219-22. Poland complains that Gainey’s

questioning was baseless and that no other employees were questioned. Id. ¶¶ 221-22.

On or about April 27, 2015, Dozier issued a “Notice of Follow-Up Investigation and

FINAL WRITTEN WARNING” to Poland. Id. ¶ 224. The warning referred to Poland’s twenty-

day suspension and other incidents of unprofessional behavior discovered after the November

10, 2014, confrontation with Montgomery. Id. ¶ 225. Poland claims this letter represented

“Dozier’s second effort to terminate Poland’s employment as D.C. Water and Sewer Foreman”

and “an extension of Dozier’s prior discriminatory and retaliatory conduct.” Id. ¶¶ 227-28.

Poland returned to the Sewer Services Department when his reassignment ended on May

26, 2015. Id. ¶ 265. He alleges that after his return, multiple employees accused him of

misconduct. On June 22, 2015, he learned that Montgomery had lodged a complaint that Poland

failed to provide him overtime opportunities. Id. ¶ 264. In early September 2015, Clifton

accused Poland of causing another employee to be transferred to a different workstation. Id. ¶¶

241-42. Later that month, Poland learned that Montgomery had made a second complaint

against him, alleging that Poland failed to call Montgomery for overtime opportunities. Id. ¶¶

262-63. Poland admitted that since returning to his Sewer Foreman position, he had not

communicated with Montgomery at all, including when assigning overtime. See id. ¶ 265.

In October 2015, Montgomery complained a third time that Poland was not assigning him

overtime. Id. ¶ 267. Poland responded that he did not have direct contact with Montgomery, see

Page 6 of 22 id. ¶ 270, but also claims Montgomery’s allegations were false, racially discriminatory, and

retaliatory, id. ¶ 276. Poland alleges that Regis and Braveboy “engaged in racially

discriminatory and retaliatory conduct against Poland by failing to address” Clifton and

Montgomery’s false accusations against him. Id. ¶¶ 276-77.

D. Montgomery’s Lawsuit

In November 2015, Montgomery filed a lawsuit in D.C. Superior Court against DC

Water, Poland, Regis, and Braveboy, alleging that Poland assaulted him on November 10, 2014,

and that the defendants (including Poland personally) racially discriminated against him. See id.

¶ 278. Poland, through retained counsel, informed DC Water that it would be a conflict of

interest for DC Water’s attorneys to represent him. Id. ¶ 279. Poland claims DC Water retained

counsel for his co-defendants, Regis and Braveboy, but did not pay for his attorney’s fees and

costs, which Poland says was racially motivated. Id. ¶¶ 283-286.

E. Poland’s Lawsuit

Less than a year later, Poland filed this suit. In his original Complaint, Poland asserted

six causes of action: (1) discrimination based on race; (2) hostile-work-environment harassment

based on race; (3) retaliation for opposing race discrimination; (4) intentional infliction of

emotional distress; (5) negligent infliction of emotional distress; and (6) violation of his right to

equal protection under the Fifth Amendment of the United States Constitution. Id. At the

parties’ request, the court stayed proceedings while Montgomery’s lawsuit proceeded in D.C.

Superior Court. See ECF No. 11, Consent Mot. to Stay Proceedings; Minute Order (Feb. 24,

2017); Minute Order (June 19, 2017).

The court reinstated this action on October 19, 2018, see Minute Order (Oct. 19, 2018),

and DC Water moved to dismiss the initial Complaint. See ECF No. 19, Mot. to Dismiss. In

Page 7 of 22 response, Poland filed an Amended Complaint, dropping his two common law tort claims, and

adding a litany of allegations intended to support his remaining four claims: race discrimination,

retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964

and the DCHRA, and deprivation of his equal protection rights in violation of the Fifth

Amendment of the United States Constitution. Am. Compl.

DC Water now moves to dismiss the Amended Complaint, arguing that Poland fails to

state a valid claim for relief.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” and “the grounds for the court’s jurisdiction” so that a defendant has fair

notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a); Erickson v. Pardus,

(2007) (per curiam) (citing cases). A party may move for dismissal under Fed.

R. Civ. P. 12(b)(6) for failure “to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6).

Compliance with Title VII’s statute of limitations is an affirmative defense properly

raised in a motion under Rule 12(b)(6). See Greer v. Bd. of Trustees of Univ. of D.C.,

(D.D.C. 2015) (citing cases). “In ruling on a motion to dismiss, the Court

may consider not only the facts alleged in the complaint, but also documents attached to or

incorporated by reference in the complaint and documents attached to a motion to dismiss for

which no party contests authenticity.” Demissie v. Starbucks Corp. Off. & Headquarters,

(D.D.C. 2014).

Page 8 of 22 III. ANALYSIS

A. Race Discrimination Claim

Courts examine race discrimination claims brought under Title VII and the DCHRA

using the burden-shifting framework announced in McDonnell Douglas Corp. v. Green,

(1973). See Badibanga v. Howard Univ. Hosp.,

(D.D.C. 2010).

That framework requires a plaintiff to first state a prima facie case, showing that: “(1) [the

plaintiff] is a member of a protected class, (2) [he] suffered an adverse employment action; and

(3) the unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta,

(D.C. Cir. 2002) (internal citation omitted). A plaintiff can establish an inference

of discriminatory intent by identifying similarly situated employees, outside his protected

category, who were treated better than he was. See Robertson v. Dodaro,

(D.D.C. 2011).

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff need not plead all elements of a

prima facie case. See Swierkiewicz v. Sorema N.A.,

, 510–12 (2002). At this stage,

a complaint need only “provide enough factual heft to show a plausible entitlement to relief,”

Winston v. Clough,

(D.D.C. 2010), meaning that it contains “enough facts

to [nudge] a claim to relief . . . across the line from conceivable to plausible,” Bell Atlantic Corp.

v. Twombly,

(2007). Pleadings in Title VII cases have sufficient “factual heft”

when they allege that “(i) the plaintiff suffered an adverse employment action and (ii) because of

his race, color, or religion, sex or national origin.” Bryant v. Pepco,

(D.D.C. 2010) (citing Brady v. Off. of the Sergeant at Arms,

(D.C. Cir. 2008)).

And, when evaluating whether a plaintiff has sufficiently pled facts that support an inference of

discrimination at the motion to dismiss stage, “there is a very low bar for alleging an inference of

Page 9 of 22 discrimination.” Sims v. Sunovion Pharms, Inc., Civil Action No. 17- 2519 (CKK),

, at *8 (D.D.C. Feb. 19, 2019).

1. Administrative Exhaustion

Under Title VII, a plaintiff must exhaust their administrative remedies before filing a

lawsuit, which begins with filing a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). See e.g., Mayers v. Laborers’ Health & Safety Fund of N.

Am.,

(D.C. Cir. 2007). Generally, a plaintiff must file a charge within 180

days of the alleged discriminatory action. 42 U.S.C. § 2000e-5(e)(1). If the locality has a work-

sharing agreement with the EEOC, as does the District of Columbia, this deadline extends to 300

days.

(a)(4)(ii) (2020).

Poland filed his charge of discrimination with the EEOC on July 21, 2015. Am. Compl.

¶ 234. Thus, he timely exhausted his administrative remedies as they relate to alleged conduct

that occurred on or after September 24, 2014 (i.e., 300 days before he filed his charge), but not

those occurring before that date. See Singletary v. District of Columbia,

(D.C.

Cir. 2003) (“‘[D]iscrete discriminatory acts’ . . . ‘are not actionable if time barred, even when

they are related to acts alleged in timely filed charges.’”) (quoting Nat’l R.R. Passenger Corp. v.

Morgan,

(2002)).

In his opposition, Poland concedes that he has not timely exhausted his administrative

remedies for alleged conduct before September 24, 2014, and that those allegations are thus not

actionable. ECF No. 25, Pl. Opp’n at 14. Consequently, he limits his race discrimination claim

to three alleged adverse actions that occurred after September 24, 2014: (1) the twenty-day

unpaid suspension he received in December 2014; (2) the temporary transfer to the Customer

Service Department beginning in December 2008, which allegedly resulted in a 30% decrease in

Page 10 of 22 income; and (3) DC Water’s denial of his request to indemnify him for legal fees related to

Montgomery’s lawsuit.

1

2. Adverse Employment Actions

DC Water argues that two of Poland’s three alleged adverse employment actions cannot

support a claim for racial discrimination. First, it argues that Poland’s twenty-day suspension

was not an adverse employment action because Poland does not allege that his suspension was

unpaid. See Def. Mot. at 16 (“Nowhere in the Amended Complaint does Poland plead that his

suspension was unpaid, without which he cannot establish this event as an adverse action upon

which he can base a disparate treatment claim.”). While it is true that Poland does not explicitly

state that his suspension was unpaid, he alleges facts that support such an inference.

Specifically, he alleges that his co-worker Clifton was also suspended and asked a supervisor to

stagger the suspension so that he would not miss an entire paycheck, Am. Compl. ¶ 251, and that

Poland subsequently asked his own supervisor if he too could stagger his suspension, id. 253-54,

318, presumably for the same reason. At the motion to dismiss stage, Poland is entitled to all

reasonable inferences in his favor. See Ashcroft v. Iqbal,

(2009).

Accordingly, the court will infer that his twenty-day suspension was unpaid and therefore

constitutes an adverse employment action.

1 While unexhausted allegations of discriminatory acts cannot serve as the basis for a Title VII claim, they can support a separate, charged discriminatory act that forms the basis of a Title VII claim. Morgan,

. Accordingly, Poland’s allegations of discrimination that occurred before September 24, 2014, cannot sustain a discrimination claim, but can serve as evidence in support of claims for which he exhausted his administrative remedies. See id.; see also Ellison v. Napolitano,

(D.D.C. 2012) (concluding that employee could use prior, unexhausted discrimination claims as background evidence in support of a timely claim). Page 11 of 22 Second, DC Water argues—for the first time in a footnote in its reply brief—that Poland

did not include in his EEOC complaint any allegation regarding DC Water’s refusal to pay his

attorneys’ fees in the Montgomery lawsuit, and therefore this allegation cannot serve as the basis

for a Title VII claim. See ECF No. 26, Reply at 3 n.2 (citing Morgan,

). But the

D.C. Circuit has held that courts should not address arguments raised for the first time in a reply

brief, and the court declines to do so here. See, e.g., Conservation Force v. Salazar,

(D.D.C. 2013), aff’d

(D.C. Cir. 2012) (forfeiting an argument made for

the first time in a reply brief); see also Jones v. Mukasey,

(D.D.C. 2008)

(noting caselaw holding that courts should not address arguments raised for the first time in a

party’s reply). Consequently, at this stage, the court will not consider whether Poland has

exhausted administrative remedies for his claims concerning DC Water’s refusal to pay his legal

fees and costs.

3. Inference of Discrimination

Next, DC Water argues that Poland has not sufficiently pled facts showing that his

twenty-day suspension, his transfer to the Customer Service Department, and DC Water’s refusal

to pay his legal fees give rise to an inference of discrimination. Def. Mot. at 18-22; Reply at 4-7.

Specifically, it argues that Poland has not pled facts identifying similarly situated employees,

outside his protected category, who were treated better than him. See Def. Mot. at 19. The court

disagrees.

Poland’s race discrimination claim meets the minimum pleading standard in the Title VII

context. For each of these challenged actions he provides relevant dates and factual context,

such as the names of DC water employees who allegedly discriminated against him. See, e.g.,

Am. Compl. ¶¶ 96-149, 167-188, 309-311 (allegations regarding twenty-day suspension);

¶¶

Page 12 of 22 189-210 (temporary transfer); id. ¶¶ 278-286 (refusal to cover legal fees). And for each

allegation, Poland supports an inference of discrimination by naming employees who he argues

were “similarly situated” to him yet who received more favorable treatment. See, e.g., Am.

Compl. ¶¶ 85, 170-72, 230, 236, 239, 309-10 (alleging “less favorable” treatment than

“similarly-situated African-American DC Water employees” and providing examples of

Roberson, Gethers, Montgomery, Clifton, and Stevenson using profanity and/or threatening

language but receiving less than twenty-day suspension); id. ¶¶ 197-208 (alleging that no other

foreman—all the other foremen were African American—were transferred to customer service,

that other foreman and Plaintiff’s replacement—whom were African American—continued to

receive overtime opportunities and Poland did not); id. ¶¶ 283-86 (alleging that DC Water paid

for legal fees and costs associated with Montgomery’s claims against Regis and Braveboy, but

did not pay Poland’s expenses for Montgomery’s claims against Poland, and that DC Water’s

decision to do so was racially motivated). These allegations are sufficient to support an

inference of discrimination at the motion to dismiss stage. See Harrington v. Pompeo, No. 18-

CV-1056 (TSC),

, at *4 (D.D.C. Sept. 30, 2020) (finding allegation that co-

worker engaged in the same conduct but was treated better than plaintiff, without more, was

sufficient to support an inference of discrimination at the motion to dismiss stage).

Moreover, the cases upon which DC Water rely involved motions for summary

judgement. See Def. Mot. at 18-22. It may be that discovery reveals that Poland’s alleged

comparators were not in fact “similarly situated.” See Neuren v. Adduci, Mastriani, Meeks &

Schill,

(D.C. Cir. 1995) (requiring plaintiff at the motion for summary

judgment stage to “demonstrate that all of the relevant aspects of her employment situation were

Page 13 of 22 ‘nearly identical’ to those of the male associate”). But the court does not reach this question at

the motion to dismiss stage. See Swierkiewicz,

.

Accordingly, the court will deny DC Water’s motion to dismiss Poland’s three

discrimination claims for which he exhausted his administrative remedies.

B. Retaliation Claim

Title VII’s anti-retaliation provision makes it unlawful for “an employer [to]

‘discriminate against’ an employee . . . because that individual ‘opposed any practice’ made

unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII

proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v. White,

(2006)

(quoting 42 U.S.C. § 2000e–3(a)). To establish a prima facie case of retaliation, Poland must

show that: (1) he engaged in activity protected by Title VII, (2) his employer took an adverse

employment action against him, and (3) the adverse action was causally related to the exercise of

those rights. Taylor v. Small,

(D.C. Cir. 2003). However, like his

discrimination claim, Poland’s retaliation claim “faces a low hurdle at the motion to dismiss

stage,” Winston,

, and he does not need to plead each element of his prima

facie case, see Swierkiewicz,

.

DC Water does not dispute that Poland engaged in statutorily protected activity when he

told Richards and Regis that he felt his twenty-day suspension was because of his race. See Def.

Mot. at 34. It argues, though, that Poland has not established a causal connection between that

protected activity and his transfer to the Customer Service Department. See id at 34-35.

“Because causation is often the most difficult element to show in advance of discovery,

courts generally rely on the length of time between the protected activity and the adverse action

to determine whether causation has been sufficiently pled at the motion to dismiss stage.”

Page 14 of 22 Bryant,

(citing Holcomb v. Powell,

(D.C. Cir. 2006)).

“If the adverse action occurs immediately following the protected activity then the court is free

to infer causality; if the adverse action happens many months or years later courts are less likely

to allow such an inference.”

at 32 (citing Clark County Sch. Dist. v. Breeden,

(2001)). When relying on temporal proximity alone to demonstrate causation, there is no

bright-line rule, although three months is perceived as approaching the outer limit. See Hamilton

v. Geithner,

(D.C. Cir. 2012).

Poland claims that twelve days after he complained to Richards and Regis, they initiated

his transfer to the Customer Service Department, where his compensation decreased by thirty

percent due to a corresponding reduction in overtime opportunities—opportunities which he

alleges were given to African American co-workers. Am. Compl. ¶¶ 189-208, 356-363. These

allegations establish a sufficiently close temporal proximity between Poland’s alleged protected

activity and the alleged adverse action to show causation. 2

C. Hostile Work Environment Claim

The Supreme Court has held that Title VII forbids an employer to “requir[e] people to

work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc.,

(1993). A hostile work environment can amount to either discrimination or retaliation

2 Poland also claims Dozier retaliated against him by suggesting that Poland be fired for his behavior at the November 10, 2014, meeting, and that DC Water retaliated against him when it suspended him for twenty days. See Am. Compl. ¶¶ 186, 364, 371. DC Water argues that Dozier’s proposal to fire Poland, and DC Water’s November 26, 2014, letter regarding his twenty-day suspension both occurred before Poland engaged in his protected activity at the November 26, 2014, meeting, and thus do not support his retaliation claim. See Def. Mot. at 34- 35. Poland did not respond to these arguments in his opposition and only addressed DC Water’s argument that his temporary transfer was retaliatory. See Pl. Opp’n at 23-26. Accordingly, the court treats DC Water’s argument as conceded. See Hopkins v. Women’s Div., General Bd. of Global Ministries,

(D.D.C. 2003), aff’d,

(D.C. Cir. 2004) (citing FDIC v. Bender,

(D.C. Cir. 1997)) (other citation omitted). Page 15 of 22 under Title VII. See, e.g., Harris v. Wackenhut Servs., Inc.,

(D.C. Cir. 2011)

(discrimination); Singletary v. District of Columbia,

(D.C. Cir. 2003)

(retaliation).

To prevail on a hostile-work-environment claim under either a discrimination or a

retaliation theory, “a plaintiff must show that his employer subjected him to ‘discriminatory

intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’” Baloch v. Kempthorne,

(D.C. Cir. 2008) (quoting Forklift Systems, Inc.,

). “To

determine whether a hostile work environment exists, the court looks to the totality of the

circumstances, including the frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work performance.”

(citing

Faragher v. City of Boca Raton,

(1998)). “The Supreme Court has made it

clear that ‘conduct must be extreme to amount to a change in the terms and conditions of

employment.’” George v. Leavitt,

(D.C. Cir. 2005) (quoting Faragher,

). These standards “ensure that Title VII does not become a general civility code”

that involves courts in policing “the ordinary tribulations of the workplace.” Faragher,

(citation and internal quotation marks omitted).

While claims of racial discrimination based on discrete acts must each independently

satisfy the statute of limitations, hostile environment claims “are different in kind from discrete

acts” because “their very nature involves repeated conduct.” Morgan,

. The

“unlawful employment practice” therefore “cannot be said to occur on any particular day. It

occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act

of harassment may not be actionable on its own.”

Hostile environment claims are therefore

Page 16 of 22 subject to a different limitations rule: “Provided that an act contributing to the claim occurs

within the filing period, the entire time period of the hostile environment may be considered by a

court for the purposes of determining liability . . . . In order for the charge to be timely, the

employee need only file a charge within . . . 300 days of any act that is part of the hostile work

environment.”

(emphasis added).

That principle, however, does not amount to an “open sesame” for all of Poland’s

allegations. Baird v. Gotbaum,

(D.C. Cir. 2011). Conduct that occurred on

either side of the limitations period must constitute the “same actionable hostile environment

claim,” which is only the case “if they are adequately linked into a coherent hostile environment

claim—if, for example, they ‘involve[ ] the same type of employment actions, occur[ ] relatively

frequently, and [are] perpetrated by the same managers.’”

(quoting Morgan,

-

21). On the other hand, a court cannot “dismiss a hostile work environment claim merely

because it contains discrete acts that the plaintiff claims (correctly or incorrectly) are actionable

on their own.” Id. at 1252.

Before assessing whether Poland has adequately stated a hostile work environment claim,

the court first must determine whether allegations that occurred before September 24, 2014, are

sufficiently related to his timely allegations such that they constitute the “same actionable hostile

environment claim.” See Id.

Poland’s hostile work environment claim is based on his allegation that from 2006

through 2015, several supervisors, including Regis and Richards, subjected him to “severe and

pervasive” racial harassment and were aware of several incidents of co-worker harassment, but

“chose to take no meaningful action to remedy the harassment.” Am. Compl. ¶¶ 338-39. For

example, he alleges that prior to September 24, 2014, Regis took away one of Poland’s overtime

Page 17 of 22 assignments and gave it to an African American co-worker, id. ¶¶ 37-39, that Richards knew that

Poland’s co-workers directed racial slurs at Poland three times between 2006 and 2008, and that

Poland’s co-workers acted in a “threatening manner” towards him in November 2010, but

Richards took no disciplinary action because of Poland’s race, see id. ¶¶ 15-16, 35-36, 49-50, 61,

71, 95. Poland alleges that after September 24, 2014, Regis and Richards suspended him for

twenty days and transferred him to the Customer Service Department, id. ¶¶ 182-95, 205,

punishment that Poland says was harsher than that imposed on similarly situated co-workers and

which resulted in Poland’s overtime assignments going to his African American co-workers. Id.

¶¶ 85, 170-72, 197-208, 230, 236, 239, 309-10, 342(l). Poland also alleges that DC Water

refused to pay for his legal fees incurred in defending against Montgomery’s lawsuit, despite

paying for his similarly situated co-workers’ legal fees, again, because of his race. Id. ¶¶ 283-86.

And he claims that Richards “made pejorative racial statements about Caucasians in Poland’s

presence throughout Poland’s tenure at DC Water,” id. ¶ 295, and that during that same time

span he received fewer overtime opportunities than African American co-workers, id. ¶¶ 38-40,

199-208.

Poland’s allegations adequately connect a series of events into a coherent hostile

environment claim in that they involve the same supervisors—Regis and Richards—who

allegedly discriminated against him and who turned a blind eye to misconduct based on race,

including racial slurs. Accordingly, because Poland exhausted his administrative remedies with

respect to some of the alleged harassment, he may properly rely on other instances of harassment

in pleading his hostile work environment claims.

Page 18 of 22 Having determined the scope of allegations that constitute Poland’s hostile work

environment claim, the court now considers whether those allegations amount to a valid Title VII

claim for relief and concludes that they do.

Poland’s allegations spanning 2006 to 2015 occurred somewhat sporadically, and are

separated by months, and in some instances, years. Compare id. ¶¶ 13-15, 73, 342(g), with id. ¶¶

117-32, 342(h) (showing two-year gap between allegations). However, his allegations that he

was targeted with racial slurs, physical threats, and adverse employment actions (including his

twenty-day suspension and transfer to the Customer Services Department), all because of his

race, are numerous and involved the same supervisors. See, e.g., ¶¶ 46, 61, 83-84, 120-21, 148.

This conduct could be found to have “unreasonably interfere[d]” with his employment and

created “an abusive working environment.” Forklift Syst.,

. Accordingly,

Poland has adequately stated a valid hostile work environment claim.

D. Section 1983 Claim

To state a claim pursuant to

, a plaintiff must establish (1) “the violation

of a right secured by the Constitution and the laws of the United States” and (2) “that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins,

(1988). A municipality can be subject to liability under § 1983 “for monetary,

declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs.,

(1978). However, a municipality “is not liable under § 1983 unless a municipal ‘policy’ or

‘custom’ is the moving force behind the constitutional violation.” City of Canton v. Harris,

(1989) (quoting Monell,

). In other words, “a plaintiff must

Page 19 of 22 demonstrate that a custom or policy of the municipality caused the violation[,]” Ryan v. Dist. of

Columbia,

(D.D.C. 2018) (internal quotation marks and citation

omitted), which is ordinarily accomplished by showing either: (1) “the explicit setting of a policy

by the government that violates the Constitution”; (2) “the action of a policy maker within the

government”; (3) “the adoption through a knowing failure to act by a policy maker of actions by

his subordinates that are so consistent that they have become custom”; or (4) “the failure of the

government to respond to a need (for example, training of employees) in such a manner as to

show deliberate indifference to the risk that not addressing the need will result in constitutional

violations[,]” Blue v. Dist. of Columbia,

(D.C. Cir. 2015) (internal quotation

marks and citation omitted).

To be considered a policy maker, an individual must “speak with final policymaking

authority,” Jett v. Dallas Indep. Sch. Dist.,

(1989), and “typically must be at

least an agency head or the governing body of an agency,” Coleman v. District of Columbia,

(D.D.C. 2011) (finding that an Assistant Chief in the D.C. Fire and Emergency

Medical Services Department was not a final policy maker). The court’s analysis turns not on

whether an employee was in a leadership position, but on whether “the D.C. Code specifically

grant[s] authority to [the alleged policy maker] to promulgate administrative rules or . . . policies

and procedures” and whether their “discretionary decisions are constrained by policies not of that

official’s making.” Byrd v. District of Columbia,

(D.D.C. 2011).

Poland’s section 1983 claim is based on his theory that Richards, Regis, and Dozier have

final policymaking authority for the District of Columbia, and that their discriminatory actions

“constitute a widespread custom and practice” of (1) remaining deliberately indifferent to racial

harassment and discrimination towards Caucasian employees, (2) providing African Americans

Page 20 of 22 with more overtime opportunities than Caucasians, and (3) treating African Americans more

favorably than Caucasians when imposing discipline. Am. Compl. ¶¶ 387-390. He further

alleges that his transfer to the Customer Service Department constitutes a policy of demoting

Caucasian employees to promote African Americans. Id. ¶ 391.

DC Water argues that Poland fails to state a valid section 1983 claim because he has not

alleged facts showing that Richards, Regis, Dozier, or any other DC Water employee acted

pursuant to a custom or policy. Def. Mot. at 39-41. The court agrees.

Poland offers no facts to support his conclusory assertion that “Richards, Regis, and

Dozier all had final policy-making authority” for the District of Columbia. See Am. Compl. ¶

387. Nor has he alleged that any policy maker failed to respond to the alleged discrimination in

such a manner as to show deliberate indifference to the risk of constitutional violations. And

other than alleging that they discriminated against him, he does not allege any facts to show that

Richards, Regis, and Dozier’s actions were part and parcel of a custom “so widespread as to have

the force of law.” Bd. of Cnty. Comm’rs of Bryan Cntv. v. Brown,

(1997).

Poland’s section 1983 claim is in essence a request to hold the District of Columbia liable

for the actions of Richards, Regis, and Dozier on a respondeat superior theory. But the Supreme

Court has long recognized that a municipality cannot be held liable under section 1983 merely

because its employees violated the plaintiff’s federally protected rights. See Monell,

; see also Byrd,

(“Under Section 1983, a municipality is not liable

under principles of respondeat superior, but is only responsible for the discretionary acts of a

municipal employee who possesses policymaking authority.”). Consequently, the court will

dismiss Poland’s section 1983 claim.

Page 21 of 22 IV. CONCLUSION

For the reasons set forth above, the court will GRANT IN PART and DENY IN PART

DC Water’s motion to dismiss.

First, the court will DENY DC Water’s motion to dismiss Poland’s race discrimination

claim with respect to the following three allegations: (1) a twenty-day unpaid suspension he

received in December 2014, (2) a temporary transfer to the Customer Service Department

beginning in December 2014, and (3) DC Water’s refusal to cover Poland’s legal costs and fees

related to Montgomery’s lawsuit, but will GRANT DC Water’s motion to dismiss all remaining

claims of race discrimination.

Second, the court will DENY Defendant’s motion to dismiss Poland’s retaliation claim

based on his allegation that on November 26, 2014, he engaged in a protected activity by

reporting to Richards and Regis that he felt he was being discriminated against on the basis of his

race due to the twenty-day suspension he had received, and that twelve days later, DC Water

employees retaliated against him by transferring him to the Customer Service Department, but

will GRANT DC Water’s motion to dismiss any other claims of retaliation.

Third, the court will DENY DC Water’s motion to dismiss Poland’s hostile work

environment claim.

And fourth, the court will GRANT DC Water’s motion to dismiss Poland’s Section 1983

claim.

Date: July 6, 2022 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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