Plaintiffs Edmond Stanton, Booker Tolbert, and Carnell Veney allege racial discrimination and retaliation by their employer, Potomac Electric Power Company (Pepco), under federal law and the District of Columbia Human Rights Act (DCHRA). Pepco's motion to dismiss prompted the plaintiffs to seek leave to amend their complaint, intending to consolidate multiple Title VII claims into a single claim under 42 U.S.C. § 1981. The court previously dismissed certain DCHRA claims, preventing their repleading. The court will partially grant the plaintiffs' motion to amend and deny Pepco's dismissal motion as moot regarding the claims not addressed in a prior order.
The plaintiffs, all African-American men employed by Pepco since 1984 (Tolbert) and 2007 (Stanton and Veney), report a racially hostile work environment, citing incidents such as racial slurs used by white employees without repercussions and the discovery of a noose at the workplace. They also allege issues with Pepco’s "sign-on" program, which is crucial for demonstrating competencies necessary for promotions and pay increases, claiming that lack of support from supervisors inhibits their career advancement. The court will allow amendments related to specific claims outlined in the Second Revised Table of Claims.
Plaintiffs allege racial discrimination within their workplace, specifically against African-American employees, claiming that supervisors favor white employees for sign-on approvals, thereby affecting African Americans' chances for promotions. They also assert that the lack of company vehicle assignments adversely impacts their compensation, as those with vehicle assignments receive pay during their commute, while those without do not. Plaintiffs contend that Pepco discriminates in vehicle assignments and further allege that they are denied promotions, receive fewer overtime hours, and are assigned less desirable work compared to their white counterparts. They argue that white employees are favored for long-term assignments, which offer better working conditions and stability, while they are often relegated to hazardous "storm duty" assignments.
The plaintiffs’ case has been narrowed to three specific claims: Count I (DCHRA race discrimination) for Plaintiffs Stanton and Veney, Count II (federal Section 1981 race discrimination) for all Plaintiffs, and Count IV (DCHRA retaliation) for all Plaintiffs. Procedurally, the case was initiated in D.C. Superior Court in July 2020 and subsequently removed to federal court. The original complaint included claims for race discrimination, hostile work environment, and retaliation under Title VII and DCHRA, but after Pepco's motion to dismiss—arguing various legal deficiencies—Plaintiffs opted to amend their complaint, replacing the Title VII claims with a federal race discrimination claim under 42 U.S.C. § 1981, while retaining their DCHRA claims. They initially sought to add class action allegations but later withdrew that request. Pepco opposed the amendment, and Plaintiffs did not respond until the court ordered further briefing.
The Court dismissed several DCHRA claims due to the Plaintiffs' failure to respond to Pepco’s arguments regarding the claims being untimely, preempted, or barred by the election of administrative remedies. This dismissal eliminated the DCHRA hostile work environment claims but allowed some DCHRA discrimination and retaliation claims, along with federal claims, to proceed. The Court held the Plaintiffs’ motion to amend in abeyance pending further briefing, and both parties subsequently filed additional materials regarding the motion.
The legal standards indicate that since the Plaintiffs filed their amended complaint beyond the 21-day window following Pepco's motion to dismiss, they require the Court's permission to amend, per Federal Rule of Civil Procedure 15(a). This rule allows for amendments unless there is undue delay, bad faith, undue prejudice, or if the amendment would be futile. A proposed amendment is deemed futile if it would not withstand a motion to dismiss, which is evaluated under the 12(b)(6) standard requiring sufficient factual matter for a plausible claim.
The Court will first analyze the Section 1981 and DCHRA race discrimination claims, followed by the DCHRA retaliation claim. It is noted that all hostile work environment claims were dismissed, and the Plaintiffs did not include a federal hostile work environment claim in their PAC. Additionally, the Plaintiffs withdrew their putative class claims in response to Pepco's challenges, resulting in no class claims being presented.
Section 1981 and DCHRA address race discrimination in contractual and employment contexts. Section 1981 guarantees the right to make and enforce contracts free from racial bias, while D.C. Code 2-1401.11(a)(1)(A) prohibits racial discrimination in employment regarding compensation, promotion, and other employment terms. Both statutes employ the McDonnell Douglas framework for evaluating discrimination claims, requiring plaintiffs to establish a prima facie case by showing membership in a protected class, suffering an adverse employment action, and a causal link between the two. However, plaintiffs need only plead facts that make their claims plausible, rather than establishing a prima facie case in their complaints.
Mr. Stanton has nine remaining race discrimination claims. Claims 1, 2, 6, and 18 have been deemed futile for amendment as they relate to disfavored work assignments that do not constitute adverse employment actions. An adverse action requires a significant change in employment status, which includes hiring, firing, or substantial reassignment, while purely subjective grievances like dissatisfaction or humiliation do not qualify. Stanton's claims revolve around dissatisfaction with job assignments, such as being given menial tasks and lacking substantial or technical work, which do not meet the threshold for adverse action needed to support his Section 1981 race discrimination claim.
Claim 3 involves Stanton's allegations of being denied "sign-ons," which he argues are critical for promotions. Stanton contends he sought these sign-ons monthly from 2016 to 2019, but supervisors consistently refused his requests while granting them to white employees. Pepco disputes that this constitutes adverse action; however, the court finds that denying sign-ons could materially affect employment terms and future promotion opportunities, thereby constituting adverse action under relevant case law. Stanton's claims suggest a discriminatory pattern, as he points out that white employees with similar qualifications were promoted ahead of him.
Stanton also presents evidence of a discriminatory environment, citing a supervisor's racially derogatory remarks and the presence of a noose at the workplace, which went uninvestigated. These allegations support a reasonable inference of racial discrimination. As a result, the court allows Stanton to amend his claim regarding the sign-on issue.
Claims 4 and 5 relate to Stanton's denial of promotions in 2017 and 2018. Pepco acknowledges these claims as adverse actions but disputes the inference of discrimination for claim 4, which the court deems futile for amendment. In contrast, claim 5 has sufficient grounds to potentially withstand a motion to dismiss.
Claim 4 regarding Stanton's non-selection for a supervisor position in November 2017 is dismissed due to a lack of allegations supporting race discrimination. Stanton asserts he was qualified, but does not specify the race of other candidates, nor does he establish a plausible case of discrimination based on the evidence presented.
Claim 5, concerning Stanton being passed over for a promotion to Test Specialist in 2018, is stronger. Stanton alleges that less qualified white employees with less seniority were promoted over him, and four of the five promoted individuals were white. The single non-white promoted individual had not filed discrimination charges against Pepco. This claim is interconnected with claims of discriminatory "sign-on" policies affecting his promotion timeline and is bolstered by prior allegations of racial slurs. The Court allows Stanton to amend this claim.
Pepco argues that Stanton’s promotion in January 2020 undermines his claims, but the analysis of his qualifications and treatment in relation to the sign-on policies supports his assertion of discrimination delaying promotion opportunities.
Claim 7 regards Stanton's denial of a company vehicle. The Court finds the PAC's allegations barely support a plausible claim, noting that vehicle assignments affect compensation. Stanton claims that despite being eligible, he was denied a vehicle while they were assigned to white employees, suggesting possible discriminatory practices in vehicle assignments.
In 2018/2019, Stanton received a company vehicle after a delay he attributes to racial discrimination, suggesting over a year of waiting compared to similarly situated employees. While his claims are weaker than others, they sufficiently indicate he was treated differently due to race, allowing for an inference of discrimination. The court permits Stanton to amend his claim regarding this issue.
Stanton's overtime claim alleges a significant reduction in hours and pay, claiming his overtime was halved since 2017 and that white employees received preferential treatment for overtime assignments. Despite Pepco's argument that the reduction affected all employees, Stanton asserts this occurred after he filed complaints about racial discrimination, hinting at retaliatory motives linked to his complaints and the use of racial slurs by a supervisor. The court grants leave to amend this claim as well.
Regarding Mr. Veney, he has eight remaining race discrimination claims, but several fail due to lacking adverse actions, including claims about long-term assignments and training denials. However, claim 23, concerning denied sign-ons, is allowed to proceed. Veney alleges he regularly requested sign-ons between 2016 and 2019 but was consistently denied compared to white employees, despite having equal skills. This claim supports an inference of discrimination. Veney incorporates broader allegations of racial slurs and a hostile work environment, which bolster his claim, even without specific instances of slurs directed at him.
Veney shares a supervisor, Ahmad Awa, with Stanton and has alleged that Awa exhibits overt racism, which has been discussed among the Plaintiffs. These allegations are deemed sufficient to withstand a motion to dismiss for racial discrimination, as they suggest a plausible inference of discriminatory intent. Although Veney may face challenges in establishing a hostile work environment due to third-party statements, the current allegations in the Plaintiff's Amended Complaint (PAC) are adequate for proceeding.
Regarding Claim 25, Veney asserts he was denied a company vehicle and associated benefits from 2018 to 2020, alleging a delay in assignment compared to white employees who received vehicles earlier despite his greater seniority. This differential treatment supports an inference of discrimination, leading the Court to grant leave to amend this claim.
For Claim 26, concerning denial of overtime, Veney claims he is as skilled as white employees who receive more overtime opportunities and is routinely denied Sunday double-time hours, while less competent white coworkers are assigned these hours. These allegations also support a plausible claim of discrimination, prompting the Court to permit amendment of this claim as well.
Finally, Mr. Tolbert has two claims that Pepco acknowledges can proceed under Section 1981. Claim 38 involves his assertion of lower pay than white colleagues with less experience, while Claim 39 pertains to receiving a marginal pay raise after filing a complaint, which was less than raises given to similarly situated white employees. The Court will allow amendments for these claims as well.
Three Section 1981 claims remain for Tolbert, focusing on denied promotions, vehicle assignments, and overtime. Although his retaliation-based overtime claim has been dismissed and cannot be included in the amended complaint, Tolbert alleges that his overtime hours have been cut since he filed a discrimination complaint.
For Claim 34 concerning promotions, Tolbert claims to have been passed over for promotions nine times but provides insufficient detail to support a plausible racial discrimination claim. Claim 35 involves vehicle assignments; despite being the most senior Test Specialist, Tolbert has not received a company vehicle while several white employees have. He specifically notes that a less senior white employee received a truck shortly after a meeting that excluded him. This situation, coupled with his uninvestigated discrimination complaint against his General Manager, allows for an inference of discrimination, warranting the Court's approval for him to amend this claim.
Claim 36 pertains to overtime; Tolbert asserts he has had the least overtime hours since 2015, particularly compared to white employees who preferentially receive overtime, especially for weekend work. His allegations suggest discriminatory practices regarding overtime distribution, which the Court finds sufficient to allow an amendment.
Count IV addresses DCHRA retaliation claims, establishing that it is unlawful for an employer to retaliate against individuals opposing discriminatory practices. To establish a prima facie case of retaliation, a plaintiff must show opposition to an unlawful practice, a materially adverse action by the employer, and a causal link between the two. The definition of 'adverse action' is broad, encompassing any harm that could deter a reasonable worker from making or supporting a discrimination charge. Stanton has five remaining retaliation claims, with Pepco conceding that one can proceed.
Claim 20 involves Stanton's assertion that he faced retaliation for filing a discrimination complaint by being forced to work without requested protective gear during the COVID-19 pandemic, while other employees received the gear. The Court will allow Stanton to amend this claim. However, leave to amend claims 14, 15, 17, and 18 is deemed futile.
Claim 14 alleges that a supervisor threatened Stanton against making complaints; however, after reporting this to HR, Stanton was reassigned to another supervisor, which did not result in identifiable harm, as established in previous case law. Claim 15 pertains to Stanton being the target of stares and derogatory comments from coworkers, which the Court found to be trivial and not materially adverse, lacking a connection to employer retaliation.
In claim 17, Stanton reports an incident where another employee urinated in his company vehicle, and Pepco did not investigate. While this behavior is unacceptable, the timing—occurring in 2019, over a year after his 2017 discrimination complaint—weakens the causal link necessary for retaliation claims. The allegations do not provide sufficient grounds to connect the incident or its lack of investigation to retaliation for his protected activity.
Claim 18, related to Pepco's alleged refusal to assign Stanton highly technical work, is dismissed due to a lack of evidence suggesting retaliation linked to protected activity and a significant two-year gap between Stanton's racial discrimination complaint and the alleged refusal. This gap is longer than in claim 17, and Stanton does not justify why this should be treated differently from similar cases.
For Veney, the sole remaining retaliation claim (claim 29) concerns his assignment to a Pepco substation without adequate training and the purported shutdown due to asbestos issues. The court finds this claim unlikely to withstand dismissal, questioning whether the assignment constitutes a "materially adverse action," and noting Veney's failure to connect this assignment to any retaliatory motive for protected activity.
Tolbert has two remaining retaliation claims: claim 41, regarding his exclusion from the promotion board, and claim 43, related to his exclusion from a meeting of white employees. The court allows Tolbert to amend claim 41, as the exclusion may dissuade a reasonable worker from filing discrimination complaints. Despite Pepco's assertion that Tolbert has not shown tangible effects on his employment, the court acknowledges that adverse actions can arise from denied responsibilities. Tolbert argues that he is the first senior Test Specialist not appointed to the board in 37 years, and the board significantly influences employee promotions, thus meeting the standard for materially adverse actions.
The PAC asserts that the board is involved in promoting employees from Relay Tester to Test Specialist. Tolbert, already a Test Specialist, questions the impact of his exclusion from the promotion process. Allegations suggest that the board’s composition, with a higher percentage of white members compared to African American employees, contributes to the underrepresentation of African Americans in promotions. Tolbert claims he was denied a seat on the promotion board, a position historically held by Senior Test Specialists, following his discrimination complaints, which could reasonably deter others from reporting discrimination.
In contrast, Tolbert’s claim regarding his exclusion from a meeting led by General Manager Couto lacks support. The PAC alleges that only white employees were invited, implying racial discrimination; however, this does not indicate a targeted adverse action against Tolbert specifically. Furthermore, Tolbert has not demonstrated any specific harm resulting from his exclusion, making it challenging to consider this as materially adverse. The court concludes by partially granting and denying the motion to amend the complaint, deeming Pepco's motion to dismiss the remaining claims as moot.
