1 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 F ederal 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 Mo tion to Dismiss t hat Parris fails adequately to plead either claim. Def. Mot., ECF No. 1 3

. 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. B ackground For pu rposes of the pending M otion, the Court accepts the facts as alleged in the Amended Complaint. See Ashcroft v. Iqbal , 556 U.S. 662 , 663 (2009)

. Parris is an African

- American male who was employed by the FDA as a Supervisor Management Anal yst (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 rac e an d

sex. Id. at 3.2 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 lea st one instance, in a telephone call with Parris, McClendon called him an “angry black man” and explained that Caldwell agreed tha t he fit th is 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

- Ame rican , 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, w hich he claims put him in a position to fail. Id. at 4

– 5. As one exampl e, 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. P arris further alleges that his supervisors repeatedly reduced the time he had to complete task s 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 documentation3 and justifications for additional training, even though they had not done so for Parris’ s co - workers who were not black males. Id.
I n June 2018, Caldwell “str ongly 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 “unreasonab le and unfair” mid

- year performan ce 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, a s a result of McClendon ’s and Caldwell’s conduct, he suffered harm to his career through the ir improper denial of his training, detail, and transfer requests, as well as through unreasonable and unfair performance reviews. Id. H e was also asserts that he suffered from stress, depression, sadnes s, 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 fin al decision , apparently de nying 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 r ace and s ex d iscrim ination 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 Ac t of 1964

. Id. at 6

– 8. The Secretary moves to dismiss both counts

. Def. Mot., E CF 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 , 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain “ a short and plain statement of t he claim showing that the p leader is entitled to relief,4 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 , 550 U.S. 544, 555 (2007) (quotation marks omitted). While
ext ensive factual allegations are not necessary, a plaintiff must plead sufficient facts to “raise a right to relief above the speculative level.” Id. When ruling on a Rule 12(b)(6) motion, the Court may consider only “the facts alleged in the complaint, doc uments attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave

– Schmidt v. Chao , 226 F. Supp. 2d 191, 196 (D.D.C. 2002). The Court mus t construe the complaint liberally in th e plaintiff ’ s favor and grant the plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal
v. MCI Commc ’ ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court must not accept a plainti ff ’ s inferences that are “unsu pported by the facts set out in the complaint.” Id

. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Recitals of “the elements of a ca use of action, supported by

me re conclusory statements, ” do not suffice. Id. at 663.
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, cond itions, 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 p rohibition into different causes of action depending on the type of discrimination a nd 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 c laim, which requires an objectively and subjectively hostile or abusive environmen t but does not necessarily require a specific job

- related event

.5 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 jo b

- related action against the plaintiff

. U.S. v. Brennan, 650 F.3d 65, 89

– 90 (quoting Ricci v. DeStefano , 557 U.S. 557, 577 (2009). At this stage of the litigation , a p laintiff making such a claim must allege that he ( 1 ) suffered an adverse employment act ion ( 2 ) because of his race and/or sex

. See Hill v. Garland , 2021 WL 965624, at * 6 (D.D.C. Mar. 15, 2021) (citing Baloch v. Kempthorne , 550 F.3d 1191, 1196 (D.C. Cir. 2008)).
T he Secretary ’s primary argument with respect to Count I is that Parri s has fail ed to plead that he suffered an “adverse employment action.” As def ined 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 diff erent responsibilities, or a decision causing significant changes in benefits.” Broderick v. Donaldson , 437 F.3d 1226, 1233 (D.C. Cir. 2006) (quoting Taylor v. Small , 350 F.3d 1286, 1293 (D.C. Cir. 2003))

. “ P urely subjective injuries, such as dissatisfa ction with a reassignment or public humiliation or loss of reputation, are not adverse actions” for a discriminatory treatment claim. Forkkio v. Powell , 306 F.3d 1127, 1130

– 31 (D.C. Cir. 2002) (internal citations omitted ). 1 The Secretary argue s that Parr is ’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, 2021 WL 1784792, at *1 (D.C. Cir. M ay 5, 2021) (granting en banc review to reconsider Brown v. Brody , 199 F.3d 446, 457 (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.6 Parris responded to this argument in a largely conclusory fashion. H e argues that the Amended Complaint allege s the “denial of training opportunities among other thing[s] which constitute . . . grounds fo r his disparate treatment claim.” Pl. Opp. to Mot. a t 11

– 12, ECF 15. Parris acknowledges that the Secretary contends t hat the mere denial of training opportunities

— without an allegation of resulting material effect on pay, hours, responsibilities, or pr omotion opportunities

— does not constitute an adverse employment action

. Id. Parris’s response is that he “alleges more than the denial of training”

— he claims that he has alleg ed that the denials of training affected his ability to perform his current job dut ies and his work performance. Id. at 12 (citing
Am. Compl. ¶ ¶ 12, 14)

. As Parris puts it, the denials of train ing “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.” Id

. And , without cit ing the Amended C omplaint , Parris argues that it “alleges that the denial of training was directly related to, and contemporaneous with his performance of specific job assi gnments

— and therefore resulted in tangible, negative impact on his job responsibility.” Id. at 13. The Court agrees with the Secr etary

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

. The closest that Parris gets is the c laim 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, statu s or benefits.” Walker v. Mattis , 319 F. Supp. 3d 267, 276 (D.D.C. 2018) (quoting Lester v. Natsios , 290 F. Supp. 2d 11, 29 (D.D.C. 2003)). Put another wa y , the denial of a training opportunity must7 result in an objectively tangible harm to suffice as an ad verse employment action

. Edwards v.
EPA , 456 F. Supp. 2d 72, 86 (D.D.C. 2006) (“[T]o be adverse, the denial of a travel or training opportunity must hav e a discernible, as opposed to a speculative, effect on the terms, conditions, or privileges of one ’ s employment.”). But Parri s does not allege that any objective harm resulted from the denial of his requests for training. He does not allege that the deni als prevented a promotion or pay raise , led to a reduction in pay, resulted in his termination, or ot herwise caused the kind of harm that would itself be an adverse employment action. Rather, Parris argues simply that the training were “imperative” for hi s career development, but points to no actual detriment to his employment or career

. Am. Compl. at 4

. To be sure, th e 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 gene ric allegations , not allegation s of tangible or objective harm. As to his “future employment opportunities,” he does not claim , for example, that he was de nied a job inside or outside the FDA, or that he was discouraged from applying because he knew he woul d 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 doe s not allege any “materially adverse consequences” or “objectively tangible harm” that

o ccurred as a result. Holcomb v. Powell , 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting Forkkio , 306 F.3d at 1131)

. Parris may be able to allege such harm, but the Amende d Complaint fails to do so.8 b. Hostile Work Environment Claim
To survive a motion to dismiss, a Title VII hostile work environment claim must allege that the p laintiff “(1)

. . . is a member of a protected class; (2)

. . . was subjected to unwelcome harass ment; (3) the harassment occurred because of the plaintiff ’ s pro tected 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. Dist rict of Columbia , 873 F. Supp. 2d 158, 189 (D.D.C. 2012). The Secretary argues that Parris has failed to allege conduct that was sufficiently severe or pervasive

. For harassment to be suffici ently 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. , 510 U.S. 17, 21 (1993) (quotation marks and c itations 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 thr eatening or humiliating, or a mere offensive utterance ; and whether it unreasonably interferes with an employee’s work performance.” Baird v. Gotbaum , 792 F.3d 166, 169 (D.C. Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) )

. The Secretary contends that the Amended Complaint describ es 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, 748 F.3d 1273 , 1277 (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 VII9 does not become a general civility code” and “filter out complaints attacking the ordinary tribulations of the workplace.” Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998). Parris responds by pointing to the po rtions of the Amended Complaint that allege t hat 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 transfe rs despite non - black male co

- workers having b een granted such requests. Am. Compl. at
4

. Parris also argues that Mc Clendon “often” instructed him not to speak at meetings and refused to acknowledge or credit him for his work

. Id. And, he allege s, his supervisors “frequently” altered their instructions to him without sufficient time for him to adjust. Id. Parris also alleges a number of episodes in 2018, including when he was called an “angry black man,” received a n unfair performance evaluatio n, 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 allege d , inter alia , repeated use of offensive racial stereotypes by his supervisors, repeated insult s 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 inc idents 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 and10 2018. Am. Compl. at 3

– 5. And, as not ed, Parris does not allege only isolated incidents, but frequent and repeated conduct

. Id. While it is true that the standard for ultimately proving a hostile work environment claim is “demanding,” see Faragher , 524 U.S. at 788, at the motion to dismiss stage , inferences must be construed in favor of Parris

. And although p laintiffs must typically provide evidence that goes beyond work

- reassignments and boorish management styles , see Román v. Castro , 149 F. Supp. 3d 157, 171 (D.D.C. 2016) ; Allen v. Napol itano , 774 F. Supp. 2d 186, 205

- 06 (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 alle ge that she was subject to a negative attitude or unkind words.”) ; Nurriddin v. Bolden , 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of important assignments, lowered performance evaluations, and close scrutiny of assignments by management [ca nnot] be characterized as sufficiently intimidating or offensive in an ordinary workplace context.”); Na’im
v. Rice , 577 F. Supp. 2d 361, 377 (D.D.C. 2008) (finding that plaintiff’s low performance ratings and non

- selection for a position do not constitute a ho stile work environment) , or a single use of a racial slur, see Tovihlon v. Allied Aviation, Inc., 323 F. Supp. 3d 6 , 17

– 18 (D.D.C. 2018) (even if supervisor used racial slur on one occasion in reference to African

- American employee , s uch incident, sta nding alone, was insufficient to establish prima facie case of hostile work environment) , Parris has alleged his supervisors repeated ly use d racial stereotypes and undertook frequent and various demeaning actions

. At this stage of the litigation, that is enough. See Wise
v. Ferriero , 842 F. Supp. 2d 120, 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, as11 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, an d 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 ho stile 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