UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TYRONE GIBSON,

Plaintiff,

v. Civil Action No. 23-cv-3371

KIRKLAND & ELLIS, LLP,

Defendant.

MEMORANDUM OPINION

Defendant Kirkland & Ellis, LLP, a global law firm, promoted Plaintiff Tyrone Gibson

three times within its technology department. But Plaintiff alleges that after his third promotion,

he experienced multiple instances of discrimination from both his subordinates and supervisor. He

repeatedly conveyed his concerns to his supervisor and Human Resources but was put on a

Performance Improvement Plan and ultimately fired.

Plaintiff brings fourteen counts of discrimination pursuant to Title VII of the Civil Rights

Act of 1964,

, and the D.C. Human Rights Act. Defendant moved to dismiss six

counts of Plaintiff’s Amended Complaint. Def.’s Mot. to Dismiss at 1–18, ECF No. 18-1 (“Def.’s

Mot.”). The court will GRANT Defendant’s Motion as to Plaintiff’s hostile work environment

claims alleged in Counts II, V, VIII, and his retaliatory hostile work environment claims in Counts

XIII and XIV, because Plaintiff fails to state a claim. The court will DENY Defendant’s Motion

to Dismiss on Count XII, however, because Plaintiff plausibly alleges discrimination based on

family responsibilities.

Page 1 of 12 I. BACKGROUND

A. Factual Background

Defendant hired Plaintiff, who is a Black man, in December 2018, as a Technology

Analyst, Level I. Am. Compl. ¶ 11, ECF No. 16 (“Am. Compl.”). In January 2020, Plaintiff was

promoted to Level II,

¶¶ 12–14, and in the following two years, Defendant twice recognized

him for outstanding performance.

In July 2022, Defendant again promoted Plaintiff to

Technology Support Supervisor, managing ten subordinates.

. When he began this role,

Plaintiff started working earlier hours, 7:30 A.M. to 4:00 PM, because he was responsible for

picking up his daughter and taking her to after-school activities every weekday except Thursday.

.

i. Work Disputes

Within Plaintiff’s first month as a supervisor, one of his subordinates, Sam Waskowicz, a

White male, told him that he would not work under Plaintiff’s authority “because [he] is Black.”

. Plaintiff immediately reported this comment to his direct supervisor, Associate Director

Kenneth Kim.

. Kim held two meetings with Plaintiff and his subordinates to address

Waskowicz’s behavior.

.

In November 2022, another subordinate employee, Michel[sic] Lima, also questioned

Plaintiff’s authority.

; Def.’s Ex. A at 3, ECF No. 18-2. Plaintiff complained about Lima’s

behavior to Kim.

. In response, Kim downplayed Plaintiff’s allegations, “suggesting that

he believed [Plaintiff] was in the wrong.”

.

In another meeting sometime between December 2022 and January 2023, Kim called

Plaintiff “stupid.”

. Plaintiff does not allege a reason for this incident, but, after he

Page 2 of 12 complained about Kim’s comment to Anna Freeman, the Human Resources coordinator, Kim read

a prepared apology to Plaintiff.

¶ 33–34.

In February 2023, Lima disregarded Plaintiff’s directions to perform inventory

management and other work in line with his job duties.

. Plaintiff complained in writing

to Freeman.

. Defendant took no action.

.

ii. Performance Improvement Plan

Months later, on March 1, 2023, Kim placed Plaintiff on a Performance Improvement Plan

(“PIP”).

. Plaintiff’s performance had never been at issue previously.

. The PIP

reported that Plaintiff was not at the level expected of a Technology Support Supervisor and

directed him to make any further employee complaints to Kim, not to Human Resources.

On March 6, 2023, Plaintiff told Kim that his subordinates were continuing to harass him.

. Kim told Plaintiff to “stop talking about the past” and not to speak to Human Resources

regarding his complaints.

. A week later, Plaintiff sent a memorandum to Human

Resources questioning why he was placed on the PIP, and relayed Kim’s instruction to not report

his concerns to Human Resources.

¶ 45–47. That same week, multiple senior directors told

Plaintiff in meetings and on phone calls to “stop looking in the rearview mirror.”

¶¶ 48–50.

In March 2023, Waskowicz stated that he “did not have to listen to [Plaintiff],” and that

Plaintiff was “not his boss anymore.”

. That same month, Kim learned that someone in

the technology department “accidentally” wiped a former employee’s laptop and reprimanded only

the three Black employees in the department—including Plaintiff—and ordered them to undergo

additional preservation training.

¶¶ 53–54. Waskowicz then wrote an “angry” email to the

technology department, “attack[ing] [Plaintiff] and the process [Plaintiff] had already put into

place to avoid preservation issues.”

. In this email, Wasckowicz disclosed that Lima was

Page 3 of 12 responsible for the mishandling of the laptop.

Kim never reprimanded Lima nor mandated the

same training for him.

.

iii. Work Schedule Change

On March 27, 2023, Kim directed Plaintiff to change his schedule to a later shift.

.

Kim insisted on the change, even though Plaintiff told him that he could not work the later shift

because he had to “drive his daughter to after-school activities every day of the week, except

Thursdays.”

¶¶ 58–60.

On April 10, 2023, Plaintiff reported Waskowicz’s comments and behavior to Human

Resources.

. The next day, Defendant fired him through a Separation Agreement, effective

the same day, accusing him of inappropriately accessing data without proper authorization and

sending proprietary information to his personal email address.

¶ 64–65.

B. Procedural History

In Counts II, V, and VIII, Plaintiff alleges hostile work environment claims under Title VII

of the Civil Rights Act of 1964,

, and the D.C. Human Rights Act.

¶¶ 76–80,

91–95, 106–10. In Counts XIII and XIV, Plaintiff also alleges retaliation under Title VII and the

D.C. Human Rights Act (“DCHRA”). 1

¶¶ 131–39. Finally, in Count XII, Plaintiff alleges

family responsibilities discrimination under the DCHRA.

¶¶ 126–30. Defendant moves to

dismiss these counts under Federal Rules of Civil Procedure 12(b)(6), arguing that Plaintiff (1)

fails to state a claim for a hostile work environment; (2) fails to state a claim for a retaliatory hostile

work environment; (3) fails to exhaust administrative remedies under Title VII for his retaliation

1 The Amended Complaint incorrectly numbers the claims, listing two as “Count 12.” Am. Compl. at 14. For the purposes of this Memorandum Opinion, and the accompanying order, the family responsibility discrimination claim will be Count XII;

¶¶ 126–30; the retaliatory hostile work environment claim under Title VII will be Count XIII,

¶¶ 131–35; the retaliatory hostile work environment claim under DCHRA will be Count XIV,

¶¶ 136–39.

Page 4 of 12 claim; and (4) fails to state a claim of family responsibilities discrimination under the DCHRA.

See Def.’s Mot. at 5–15.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a plaintiff fails to state a

claim upon which relief can be granted. Peavy v. Holder,

(D.D.C. 2009).

Courts “treat the complaint’s factual allegations as true” and “grant plaintiff the benefit of all

inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000) (internal quotation marks and citation omitted). That said, “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 Bell Atl. Corp. v.

Twombly,

(2007)). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

A court need not accept as true “a

legal conclusion couched as a factual allegation,” nor “inferences . . . unsupported by the facts set

out in the complaint.” Trudeau v. FTC,

(D.C. Cir. 2006) (internal quotations

marks and citations omitted).

III. ANALYSIS

A. Hostile Work Environment

Plaintiff brings hostile work environment claims (Counts II, V, and VIII) under three

different statutes: Title VII, Section 1981, and the DCHRA. Am. Compl. ¶¶ 76–80, 91–95, 106–

10. But all three counts warrant dismissal for the same reason: Plaintiff fails to state a claim that

he endured severe or pervasive harassment.

To state a hostile work environment claim under Title VII and Section 1981, Plaintiff must

show “that [his] employer subjected [him] to discriminatory intimidation, ridicule, and insult that

Page 5 of 12 is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive

working environment.” Baloch v. Kempthorne,

(D.C. Cir. 2008) (internal

quotation marks and citations omitted). The constituent acts must be “‘adequately linked’ such

that they form ‘a coherent hostile environment claim.’” Baird v. Gotbaum,

, 168–69

(D.C. Cir. 2015) (quoting Baird v. Gotbaum,

(D.C. Cir. 2011).

The incidents Plaintiff alleges spread across eight months and do not amount to the severe

or pervasive, race-based harassment that would constitute a hostile work environment. Chief

among Plaintiff’s allegations is that in July 2022, one of his subordinates protested his direction

explicitly because of Plaintiff’s race. Am. Compl. ¶ 23. Although Plaintiff encountered more

difficulties with his co-workers from November 2022 until his termination in early April 2023,

¶¶ 32–34, 36, 39, 51, the “objective severity of harassment should be judged from the perspective

of a reasonable person in the plaintiff’s position, considering all the circumstances.” Oncale v.

Sundowner Offshore Servs., Inc.,

(1998) (internal quotation marks and citation

omitted).

Plaintiff alleges several individual disputes with his subordinates and supervisors that fail

to collectively establish a hostile work environment. He alleges that in November 2022, Michele

Lima, a new hire on his team, “disrespected” him, “questioned his authority,” and “disregarded his

directions.” Am. Compl. ¶ 29. Meanwhile, Kim called Plaintiff “stupid.” Id. ¶ 32. Defendant

met with Kim and required him to read a “prepared apology” to Plaintiff. Id. ¶ 34. Lima “refused

to follow” Plaintiff’s directions again in February 2023. Id. ¶ 35. In March 2023, the disputes

continued. Plaintiff was put on a PIP for his work performance for the first time, while informing

his supervisors “that his subordinates continue[d] to harass and sabotage him.” Id. ¶¶ 40, 43. In

response, Defendant repeatedly told him to “stop talking about the past,” id. ¶ 44; see also id.

Page 6 of 12 ¶¶ 48–50, even though Waskowicz continued to disobey Plaintiff, saying that he was “not his boss

anymore.” Id. ¶ 51. Defendant reprimanded Plaintiff and his fellow Black supervisees for

“accidentally” id. ¶ 53, wiping a former employee’s laptop, despite the fact that Plaintiff “was out

of the office” when the alleged mistake occurred. Id. ¶ 55. During the last week of March, Kim,

Plaintiff’s direct supervisor, made matters worse by directing Plaintiff to change his work schedule

to a later shift, although he was told that that schedule conflicted with Plaintiff’s obligation to pick

up his daughter from her after-school activities. Id. ¶ 58–63. Plaintiff was fired weeks later. Id.

¶ 64.

Individual acts are only actionable as part of a hostile work environment claim if the

conduct is so “extreme to amount to a change in the terms and conditions of employment.” George

v. Leavitt,

(D.C. Cir. 2005) (internal quotation marks and citation omitted).

Although Plaintiff endured repeated disputes with his co-workers between November 2022,

January 2023, and in March and April 2023, “occasional name-calling, rude emails, lost tempers

and workplace disagreements” are insufficient to support a hostile work environment claim. See

Magowan v. Lowery,

(D.D.C. 2016). Derogatory comments by an employer

to an employee, even when tied to the employee’s national origin, can fail to establish a hostile

work environment if dispersed over time and if the constituent acts are not adequately linked. See

Jackson v. Gallaudet University,

(D.D.C. 2016) (finding that demeaning

comments by an employer to an employee directly about the employee’s national origin over a

two-year time span did not constitute severe harassment for a hostile work environment claim).

Similarly, the DCHRA provides that “[i]t shall further be an unlawful discriminatory

practice to engage in harassment based on one or more protected characteristics specified in

subsection (a),” which includes race and color.

(a), (c-2)(1). The DCHRA

Page 7 of 12 defines harassment as: “conduct, whether direct or indirect, verbal or nonverbal, that unreasonably

alters an individual’s terms, conditions, or privileges of employment or has the purpose or effect

of creating an intimidating, hostile, or offensive work environment.”

§ (c-2)(2)(A). To

determine whether harassment exists, the DCHRA outlines the following factors: the frequency of

the conduct; the duration of the conduct; the location where the conduct occurred; whether the

conduct involved threats, slurs, epithets, stereotypes, or humiliating or degrading conduct; and

whether any party to the conduct held a position of formal authority over or informal power relative

to another party. Id. § (c-2)(3).

For the same reasons discussed above, the court finds that Defendant’s alleged actions

cannot sustain a hostile work environment claim under the DCHRA either. Elhusseini v. Compass

Grp. USA, Inc.,

(D.D.C. 2008) (citing Sparrow,

) (noting

that the legal standard for discrimination under the DCHRA is substantively the same as under

Title VII). Again, the conduct at issue took place over eight months, and many of the disputes

involved Plaintiff’s subordinates, not just his supervisors. Am. Compl. ¶¶ 29–64. On at least two

occasions, management acted when Plaintiff reported discriminatory behavior. Id. ¶¶ 26, 34.

Therefore, Plaintiff’s hostile work environment claims, Counts II, V, and VIII, will be dismissed.

B. Retaliatory Hostile Work Environment

In Counts XIII and XIV, Plaintiff alleges that he was subjected to a hostile work

environment under Title VII and the DCHRA in retaliation for his protected activity. Am. Compl.

¶¶ 131–39. As with Counts II, V, and VIII, because Plaintiff fails to allege a hostile work

environment, Counts XIII and XIV must also be dismissed.

To state a prima facie case of retaliation under Title VII and the DCHRA, Plaintiff must

show that: (1) he engaged in statutorily protected activity, (2) the employer took an adverse

Page 8 of 12 employment action against him, and (3) a causal connection existed between the two. Hussain v.

Nicholson,

(D.C. Cir. 2006) (Title VII); Howard Univ. v. Green,

(D.C. 1994) (DCHRA); see Bryant v. D.C.,

(D.C. 2014) (noting that the

analysis for DCHRA retaliation is the same for Title VII). The D.C. Circuit has recognized that

“a hostile work environment can amount to retaliation under Title VII.” Hussain,

;

see also Singletary v. D.C.,

(D.C. Cir. 2003).

But, for the reasons discussed above, infra at 5–6, Plaintiff fails to allege a hostile work

environment, and consequently his retaliatory hostile work environment also fails. Counts XII and

XIV will therefore be dismissed.

C. Family Responsibilities Discrimination

Finally, Count XII alleges family responsibilities discrimination under the DCHRA. Am.

Compl. ¶¶ 126–30. This count survives Defendant’s Motion to Dismiss.

To state a claim for family responsibilities discrimination, a plaintiff must plead facts

showing that (1) he 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 based on his family

responsibilities. Abebio v. G4S Gov’t Sols., Inc.,

(D.D.C. 2014). The

DCHRA defines “family responsibilities” to include “a contributor to the support of a person or

persons in a dependent relationship[.]”

(12).

The parties do not dispute that Plaintiff is a member of a protected class. Am. Compl. ¶ 9;

Def.’s Mot. at 13–15. Defendant challenges whether Plaintiff satisfies the second element, arguing

that a schedule change, “without more, such as a reduction in salary, pay, grade, or benefits” is not

an adverse employment action. Def.’s Mot. at 13–14. But the Supreme Court in Burlington

Northern & Santa Fe Railway Company v. White,

(2006), cautioned that in

Page 9 of 12 evaluating whether an employment action is materially adverse, attention must be paid to the

surrounding circumstances. It specifically noted that although a “schedule change in an

employee’s work schedule may make little difference to many workers, [it] may matter

enormously to a [parent] with school-age children.”

“[D]epending on the context, a schedule

change in an employee’s work schedule . . . could deter a reasonable employee from complaining

and therefore might be actionable.” Burrell v. Shepard,

(D.D.C. 2018)

(quoting Burlington N. & Santa Fe Ry.,

) (second alteration removed) (internal

quotation marks omitted).

Further, the two cases upon which Defendant relies fail to support its contention. In

Mohmand v. Broadcasting Board of Governors,

, at *5 (D.D.C. Sept. 30, 2018),

the court did not hold that schedule changes can never be an adverse action, only that Plaintiff

failed to specify how his schedule changes were discriminatory. Nor does Burke v. Inter-Con Sec.

Sys., Inc,

(D.D.C. 2013), help Defendant’s argument; in that case,

plaintiff had “not submitted any evidence of a scheduling conflict.”

Here, it is plausible that Plaintiff’s schedule change adversely affected his employment.

He alleges that he needed to work earlier hours to collect his daughter from school and take her to

her activities. Burlington N. & Santa Fe Ry. Co.,

. And he argues that the schedule

change had a “devastating impact” on his family responsibilities. Pl.’s Opp’n at 21, ECF No. 21

(“Pl.’s Opp’n”).

As to the third element, Plaintiff contends that Kim changing his hours raises an inference

of discrimination because Kim knew “full well” of his family responsibilities when he did so. Id.;

Briscoe v. Costco Wholesale Corp.,

(D.D.C. 2014) (denying a motion to

dismiss a DCHRA claim where plaintiff was a parent that had “to miss or leave work” to take care

Page 10 of 12 of his “autistic son, another son with legal problems, and a daughter who was sexually assaulted”).

The court agrees. When Plaintiff began his role as Technology Support Supervisor in July 2022,

he started working earlier hours, 7:30 to 4:00 PM, because of his childcare responsibilities. Am.

Compl. at ¶ 17. Not until March 17, 2023, did Kim instruct Plaintiff to change his work schedule

to a later shift. Id. ¶ 58. In response, Plaintiff “explained that he had to be on the earlier shift

because he had to drive his daughter to after-school activities every day of the week, except

Thursdays.” Id. ¶ 59. Kim was thus on notice that Plaintiff had a family responsibility that

necessitated his early work schedule. Nonetheless, Kim “directed” Plaintiff to change his work

schedule “the following week.” Id. ¶ 60.

Indeed, when Plaintiff complained to the Associate Relations Coordinator about Kim’s

decision, he emphasized that he “told” Kim of his “family obligations,” but that Kim was trying

to “punish” him. Id. ¶ 61. Because Kim knew of Plaintiff’s parental responsibilities when he

decided to change his work schedule without giving a work-related reason, it is plausible that Kim

could have discriminated against Plaintiff on that basis. See Miles v. Univ. of the D.C., No. 12-

378,

, at *13 (D.D.C. Oct. 30, 2013) (finding that the plaintiff had raised an

inference of family responsibilities discrimination under the DCHRA sufficient to survive a

motion to dismiss where, among other things, the plaintiff had alleged that she received a letter

from a superior “that appear[ed] to equate the plaintiff’s maternity leave with ‘abandon[ing] the

[UDC] [S]ervice [C]enter and its clients’” and that “suggest[ed] that the plaintiff should be

terminated from her position” in order to improve the center’s performance).

Defendant’s only response is that Plaintiff does not allege that Kim changed his schedule

“because of his family responsibility,” Def.’s Mot. at 15, arguing that Plaintiff only alleges a

“conversation” between him and Kim “that does not include any facts or statements suggest[ing]

Page 11 of 12 that” Kim “changed the schedule because Plaintiff is a parent or had childcare responsibilities.”

at 14–15. But at this juncture, accepting Plaintiff’s allegations as true, Defendant nevertheless

directed Plaintiff to work a later shift despite being informed of his family responsibilities and

after Plaintiff had been working the earlier shift for several months without complaint. That gives

rise to an inference of discrimination, sufficient to survive a Rule 12(b)(6) challenge. Abebio,

.

Accordingly, Count XII does not warrant dismissal.

IV. CONCLUSION

For the foregoing reasons, the court will GRANT IN PART and DENY IN PART

Defendant’s Limited Motion to Dismiss. A corresponding order will follow.

Date: March 31, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 12 of 12