On November 28, 2011, the U.S. District Court for D.C. (Judge Roberts) denied a motion to dismiss filed by DHS (Secret Service) in Teliska v. Napolitano, C.A. No. 09-2422 (D.D.C.). We alleged that the Secret Service created a hostile work environment for Kate Teliska for a long time after she complained of sexual harassment by a USSS supervisor. The Court agreed that hostile work environment can be reprisal; that the events did rise to the level of a valid hostile work environment claim, and that Kate was not untimely in complaining to an EEO counselor about the last of a series of hostile actions towards her, some of which occurred in the 45-day period before she went to an EEO counselor. Indeed, there was further reprisal after that!

The Court gave the following boilerplate on considering 12(b)(6) motions to dismiss civil rights claims (p. 7):

Plaintiffs filing employment discrimination claims are not subject to heightened pleading standards, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (cited approvingly in Twombly, 550 U.S. at 569-570), and they are not required to "plead law or match facts to every element of a legal theory." Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation and citation omitted). Historically, [t]he D.C. Circuit has long recognized the ease with which a plaintiff claiming employment discrimination can survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. "Because racial discrimination in employment is a claim upon which relief can be granted, . . . 'I was turned down for a job because of my race' is all a complaint has to state to survive a motion to dismiss under [Rule] 12(b)(6)." Rouse v. Berry, 680 F. Supp. 2d 233, 235 (D.D.C. 2010) (quoting Potts v. Howard Univ. Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir. 2007)). All that is required of a complaint is that it provide enough factual heft to show a plausible entitlement to relief, that is, that it contain "enough facts to [nudge] a claim to relief . . . across the line from conceivable to plausible[.]" Twombly, 550 U.S. at 570.

The court rejected the agency's exhaustion argument (p. 10):

DHS argues that Teliska failed to exhaust her administrative remedies for all of the discrete incidents that she cites to support her claim of hostile work environment that occurred before October 20, 2008, which is 45 days before the FAD suggests Teliska first sought counseling. (Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 8-12.) However, a "hostile work environment claim . . . 'is composed of a series of separate acts that collectively constitute one unlawful employment practice.'" Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d 123, 131 (D.D.C. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) and 42 U.S.C. § 2000e-5(e)(1)).

An interesting issue was whether Kate engaged in protected activity by reporting the initial sexual harassment to a former supervisor at the Department of Defense, a different agency, when he then passed on her complaint to buddies in USSS. The Court stated (n. 3):

Because DHS does not challenge that Teliska's reporting of McCarthy's behavior to McFarland was a protected activity (Def.'s Mem. at 22-23), this opinion will assume without deciding that such activity was indeed protected. See CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Felter v. Salazar, 679 F. Supp. 2d 1, 2 n.2 (D.D.C. 2010). Defendant argued lack of causal connection, citing the span of two years between the initial sexual harassment and complaint about it and the subject hostile work environment (HWE). However, we pointed out that during that period there were repeated acts of HWE and that Kate more recently complained of sexual harassment and reprisal, so the gap wasn't great at all. Probably because we alleged continuing HWE and repeated protected activities, the Court did not even address this defense.

Thanks to Rachelle Ware Young for helping with the opposition.

This is the third motion to dismiss we have defeated in DDC this year!

– submitted by Alan Banov

November