HOWARD R.L. COOK & TOMMY

SHAW FOUN DATION F OR BLACK EMP LOYEE S OF THE LIB RARY OF CONG RESS , INC. etal.,

P laintif fs,
v. JAMES H. BIL LINGTON,

Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 10-01315 (HHK )

MEMORAN DUM OP INION Plaintiffs, four B lack e mploy ees of the L ibrary

of Cong ress a

nd the Howa

rd R.L . Cook & Tommy Shaw Founda

tion (“the F oundation”), which re prese nts curre nt and forme r L ibrary employ ees, br ing this ac tion ag ainst L ibraria n of Cong ress James H. Billing ton, in his official capa city . Plaintiffs alleg e that the L ibrary violated Title VI Iof the Civil Ri g hts Act of 1964, 42 U.S.C. § 2000e et seq ., by ref using to re cog nize the Foundation as a n employ ee or g anization and failingto publish annual equal e mploy ment opportunity

plans. Be fore the Court is the L ibraria n’s motion to dis miss [ #11], which argues that plaintiffs lac k standingto bring their claims and fa il to st ate a

plausible claim for

relief . Upon consider ation of the motion, the opposition t here to, the rec ord of this ca se, and or al ar g ument of counse l, the Court concludes that the motion must be g rante d.I. BACKG ROUND

The F oundation is a nonprofit org anization composed of cur rent a nd former L ibrary employ ees. Compl. ¶¶ 3–5. The Foundation’s activities include assisting L ibrary employ ees with pursuing c laims of discrimination ag ainst the L ibrary . Compl. ¶ 22. The Foundation has repe atedly

soug ht formal re cog nition by the L ibrary , which would allow it to (amongother things) hold mee tings in L ibrary fac iliti es and distribute mate rials to other L ibrary employ ees, including ne w hires. Compl. ¶¶ 12–14. The Foundation made one suc h reque st for re cog nition in J une 2008. Compl. ¶ 15. The L ibrary denied the r equest, infor

ming the F oundation that “it would not be appr opriate f or the L ibrary

to . . . officially

rec og nize an org anization that has as its main g oals assisting individuals in filing a nd maintaining c laims . . . ag ainst the L ibrary .” Compl. ¶ 16 (quoting letter from De nnis Hanratty , Direc tor of Human Re source s Services ( J uly 10, 2008)) ( internal quotation marks omitted); see also Compl. ¶ 17 (L ibrary Chief Oper ating Offic er’ s agree ment that rec og nition of the Foundation would not be appropria te). Af ter exhausting their a dminist rative r emedies r eg ardingthe L ibrary ’s denial of rec og nition, see Compl. ¶¶ 18–19, plaintiffs filed this suit, allegingthat the denial c onstitut ed unlawf ul retaliation in violation of Title VI I . Compl. ¶¶ 21–22. Plainti ffs fur ther a lleg e that the L ibrary has also violated Title VI I

by failingto publish annual EEO re ports as re quired by42 U.S.C. § 2000e16(b). SeeCompl. ¶¶ 25–31. Plainti ffs a lleg e that the L ibrary has not complied with its obligations under § 2000e- 16(b) since 2004. Compl. ¶¶ 27–28.

2II. LEGAL STANDARDS

A. Lack of

Sub jec t-M atte r Jurisdiction Under Fe dera l Rule of Civil Procedur e 12(b) (1), a defe ndant may

move to dismiss a complaint, or a c laim therein, for lack of subject-matter

jurisdiction. F E D . R. C I V . P. 12(b)(1); see Kokk onen v. G uardian Li

fe Ins. Co. of Am. , 511 U.S. 375, 377 (1994) (“ Fe dera l courts ar e courts of limited jurisdiction. . . . I t is to be presumed that a cause lies outside this l imited jurisdiction . . . .”). In response to such a motion, the plaintiff must show that her c laims lie within “the judicial Power of the United States,” U .S. C O N S T . art. I I I , § 1, and that a f eder al statute g rants the Court jurisdiction to hear those claims. Mice i Int’l v. De p’t of Commerce , 613 F.3d 1147, 1151 ( D.C. Cir. 2010) (citing Mayor v . Cooper , 73 U.S. 247, 252 (1868)); see also Shuler v. United States , 531 F.3d 930, 932 ( D.C. Cir. 2008). I f the plaintiff c annot establish both elements, the Court must dismiss the ac tion. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94 (1998) ( citing Ex parte M cCardle , 7 U.S. 506, 514 (1868)). B. F ailure to State a Claim On a motion to dismi ss pursuant to Fe dera l Rule of Civil Procedur e Rule 12(b) (6), the Court will dis miss a complaint or claim that fa ils to pl ead “ enoug h fac ts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 570 (2007); see F E D . R. C I V . P. 12(b)(6). T hus, althoug h a complaint nee d not contain detailed f actua l alleg ations, it must recite f

acts suff icient to at least “ raise a

rig ht to relief a

bove the spe culative leve l . . . on the assumption that all the alleg ations in the complaint are true (e ven if doubtful in fa ct).” Id. at 555. A “plea ding that offer s ‘labels a nd conclusions’ or ‘ a for

mulaic re citation of the e lements of a
cause of ac tion will not do.’” Ashcroft v. Iqbal , —U.S.—, 129 S. C t. 1937, 1949 (2009) (quoting
3Twombly , 550 U.S. at 555). A plausible c laim for re lief is one that allows the Court “ to draw the

rea sonable infe renc e that the de fenda nt is li able f

or the misconduct a lleg ed.” Id
. III. ANALYSIS A. P laintif

fs’ Retaliation Claim “Title VI Iprohibits feder al ag encie s from . . . re taliating a g ainst employ ees f or the
asser tion of their rig hts under Title VI I .” Lathram v. Snow , 336 F.3d 1085, 1088 ( D.C. Cir. 2003) (c iting Forman v. Small , 271 F.3d 285, 297 ( D.C. Cir. 2001); Ethnic Emps. of the Library of Cong. v. Boorstin , 751 F.2d 1405, 1415 & n.13 (D.C. Cir. 1985)). He re, pla intiffs’ first cla im alleg es that the L ibrary

ran a foul of this prohibition when it refuse d to rec og nize the Foundation as an of ficial e mploy ee or g anization. Pl aintiffs alleg e that the L ibrary ’s denial of rec og nition
was a direc t response to the F oundation’s opposition to employ ment discrimination at the L ibrary
. See Compl. ¶ 21. The L ibraria n seeks the dismissal of this claim on two g rounds: first, that plaintiffs have no standing to raise this claim, and se cond, that plaintiffs have fa iled to state a plausible claim of r etaliation under Title VI I . Be cause the L ibraria n’s standingargument g oes to the Court’s jurisdiction, the Court must address it first. AT& T Corp. v. FCC , 317 F.3d 227, 237 (D.C. Cir. 2003). 1. P laintif

fs H ave Standin g to Bring this Claim In Lujan v. Defende rs of W ildlif e , 504 U.S. 555 (1992), the Supre me Court explained that “the irr educible c onstitut ional minimum of standing ” conta ins three e lements: (1) injury -in-fa ct, (2) c ausation, and ( 3) re dressa bility
. Id. at 560–61. To invoke fe dera l jurisdiction, a plaintiff must show all three. Id. at 561. At the motion-to-dismiss st ag e, indepe ndent proof of these

4elements is not neede d; standing c an be e stablished by “g ener al fa ctual alleg ations.” Id . Her e, the L ibraria

n challeng es the standingof both the individual plaintiffs and the F oundation, arg uing that all plaintiffs fail to alleg e a c oncre te injury -in-fa ct. Plaintiffs counter that they have a ll alleg ed injuries suff icient to confe r standing . They also argue, howe ver, that the Court has alre ady resolved the standing issue in their favor . In a prior suit by

the Foundation and four individual plaintiffs (thre e of whom are plaintiffs here ) ag ainst the L ibrary , this Court held that the Foundation and those pla intiffs had standingto challeng e the L ibrary ’s denial of rec og nition to t he F oundation. See H oward R.L. Cook & Tommy Shaw Found. for Black Em ps. of the Librar

y of Cong., Inc., v . Billingt on ( Cook &Shaw Found. I ), 541 F . Supp. 2d 358, 362–63 (D.D.C. 2008). The Court e x plained that the L ibrary ’s ref usal to rec og nize the Foundation ca used an injury -in-fa ct to the individual plaintiffs beca use it burdene d their ability

to participate in the Foundation’s activities by imposing inconve nience and expense. Id . at 362. That fa ct also g rante d the Founda tion standing to sue on be half of its members, id . at 362–63; howeve r, the F oundation lacke d standing to sue on its own behalf beca use it lacke d rig hts under Title VI I
. Id. at 363. 1 Plaintiffs argue that the doc trine of issue pr eclusion pre vents the L ibraria n from relitig ating the questions of standingthat wer e dec ided in Cook &Shaw Foundation I . “I ssue prec lusion applies ‘[w] hen an issue of fac t or law is ac tually

litigated a

nd deter mined by a valid and fina l judgment, a

nd the deter

mination is essential to the judgment.’” Menk es v. U .S. Dep’ t of Homeland Se c. , 637 F.3d 319, 334 ( D.C. Cir. 2011) (alter ation in orig inal) (quoting

After finding that the Cook &Shaw Foundation I plaintiffs had standing , the 1 Court dismi ssed their c laim that the L ibrary ’s re fusal to re cognize the Foundation wa s unlawful beca use they had fa iled to exhaust t heir a dminist rative r emedies. 541 F . Supp. 2d at 364. 5R E S T A T E M E N T (S E C O N D ) O F J U D G M E N T S § 27 (1982)) . Plaintiffs contend that Cook &Shaw

Foundation I

was a valid and fina l judgment a nd that the same que stion of standing, ba sed on the same injury -in-fa ct, was a ctually and nec essar ily

decide d there
. The L ibraria

n makes two re sponses, neither of which ar e per suasive. F irst, the L ibraria n
asser ts that “standing must be determined f or ea ch suit individually .” De f.’s Reply at 2. To the extent that thi s statement re flec ts an assumption that standing de terminations are exempt from issue prec lusion, it is simpl y incorre ct. See Cutler v. H ayes , 818 F.2d 879, 889 ( D.C. Cir. 1987) (“Principles of

collater al estoppel c lear ly apply to standing de terminations.”); Newdow v. Bush , 391 F. Supp. 2d 95, 99–101 (D.D .C. 2005) (g iving pr eclusive e ffe ct to a dismissal based on lac k of standing ). Second, at oral ar gument, the L ibraria n asser ted that issue pre clusion should not apply here beca

use Cook &Shaw Foundation I challeng ed the L ibrary ’s 2004 denial of
rec og nition, as opposed to the 2008 denial at issue he re; thus, the two ca ses involve diffe rent injuries. But the L ibraria n identifies no mater ial differ ence betwee n the leg al issue decide d there and the one prese nted her e; in both case s, plaintiffs’ standingturns on whether the L ibrary ’s ref usal to rec og nize the Foundation ca used plaintiffs suff

icient har m to create a c og nizable injury -in-fa ct under

Article I I Iof the Constituti on. And the Court answe red that prec ise question in Cook &Shaw Foundation I
. See 541 F. Supp. 2d at 362–63. Ac cording ly , the Court conclude s that its prior judgment in Cook &Shaw Foundation I has binding , prec lusive eff ect here and esta

blishes plaintiffs’ standingto bringthis claim. 2 2. P laintif

fs H ave F ailed to State a Claim of Retaliation
Fur ther, the L ibraria

n offe rs no re ason why

the Court’s ana ly sis in Cook &Shaw 2 Foundation I

— even if

not binding — is inapplicable or incorr ect. Thus, e ven if not bound to do so, the Court would rea ch the same re sult for the same r easons. 6Next, the L ibraria n argues that plaintiffs’ r etaliation claim must be dismissed beca use it fails to state a c laim on which re lief may be g rante d. To state a c laim of reta liation, a plaintiff must alleg e materially

adver se ac tion in response to ac tivity protec ted by

Title VI I
. See Ste wart v. Ev ans , 275 F.3d 1126, 1134 ( D.C. Cir. 2002). A mater ially adver se ac tion is one that “well might have dissuaded a r easona ble worke r fr om making or supporting a

char g e of discrimination.” Burlington N . &Santa Fe Ry. Co. v . W hite , 548 U.S. 53, 68 (2006) (quoting Rochon v . Gonzales , 438 F.3d 1211, 1213 ( D.C. Cir. 2006)) (inter nal quotation marks omitted). Her e, plaintiffs c ontend that the L ibrary ’s re fusal to re cog nize the Foundation “ma y well ‘dissuade’ a L ibrary

employ ee w orkingwith the Foundation from ‘supportinga cha rg e of discrimination’ if that employ ee know s such support will affe ct the F oundation’s ability to acc ess the same f

acilities as other

L ibrary -appr oved org anizations.” Pls.’ Opp’n at 5. The L ibraria n responds that the de nial of re cog nition was not materially adver se bec ause “ the Founda tion is fre e to continue its opera

tions and the individual plaintiffs are fre e to associate throug h the Foundation.” Def

.’s Mem. at 7. Both pa rties’ a rguments are flawe d. The L ibraria n, for his par

t, simpl y fails to apply

the materia l-adve rsity

standard a

rticulated by

the Supreme Court in Burlington N orthern . In arguing that the denial of

rec og nition was not materially adver se bec ause the Founda tion and its members
rema in free to operate and a ssociate, the L ibraria n fails to rec og nize that the question under Burlington N

orthern is not whether the L ibrary has barred its employ ees f rom eng ag ing in protec ted ac tivity , but rather whether its actions would deter a re asonable employ ee f rom doing
so. See B urlington N

. , 548 U.S. at 68. And plaintiffs, while a dvertingto the proper standard, misapply it. Pl aintiffs conte nd that the “ke y question under Burlington N orthern is whether
7Def

endant’ s alleg ed re taliation would dissuade the Foundation and its employees from eng ag ing in protecte d activity , not third part ies .” Pls.’ Opp’n at 5 (second e mphasis added) . Insofar as plaintiffs argue for

a subjec tive materia l-adve rsity standard, the ir position is contra ry to law. The Burlington N

orthern standard r equire s the Court to ask “whe ther the obje ctive ‘r easona ble worke r’ would have bee n dissuaded fr om making [or supporting ] a discrimination complaint,” Baloch v. Kem

pthorne , 550 F.3d 1191, 1199 n.5 ( D.C. Cir. 2008) (quoting Burlington N

. , 548 U.S. at 68), not whethe r the plaintiffs themse lves would have been de terre d. See id. ; Steele v

. Schafer , 535 F.3d 689, 696 ( D.C. Cir. 2008). 3 These issues a side, the question re mains whether the L ibrary ’s re fusal to re cog nize the Foundation would dissuade a re asonable employ ee f rom makingor supportinga cha rg e of discrimination. I n turn, the answe r to that question depends on the deter rent e ffe ct of nonrec og nition. See R attigan v. Holder , 604 F. Supp. 2d 33, 52 (D.D .C. 2009) (“Under Burlington , the touchstone for

‘mater ial adver sity ’ is deter renc e.” ( quoting Burlington N ., 548 U.S. at 68)). In other wor ds, the Court must ask whether the prospec t of non-re cog nition would li kely preve nt that employ ee f

rom pursuinga cha

rg e of discr imination. See id. at 52–53. The Court must answer

that question in the neg ative. Althoug h the bene fits of L ibrary
rec og nition are substantial enough that the denial ther eof c an conf er standingon plaintiffs, see Cook &Shaw Found. I

, 541 F. Supp. 2d at 362–63, they are not so significa

nt that a re asonable
Indeed, the fac t that the Court’s inquiry is objective is a boon to plaintiffs; if it 3 wer e subjec tive, the fa ct that plaintiffs filed this lawsuit, or eng ag ed in other pr otected a ctivity afte r the a lleg ed re taliation, could weig h ag ainst a findingof mater ial adver sity
. See B aloch , 550 F.3d at 1199 n.5 (reje cting the district court’s c onclusion that “[t] he filingof a c omplaint after a n alleg ed instance of re taliation mili tates ag ainst a conc lusion that retaliation occur red, a s it demonstrates that the filer wa s not in fact dissuaded f rom protec ting his rig hts.” (quoting Baloch v. Norton , 517 F. Supp. 2d 345, 361 (D.D .C. 2007)) (inter nal quotation marks omitted)). 8employ ee w ould refr ain from c omplaining of discrimination for fe ar of jeopar dizi ng them. I n
essenc e, re cog nition enables org anizations to conduct cer tain clea rly define d activities on L ibrary premises, most of which r emain subjec t to L ibrary approva l. For

example, org anizations may 4 hold an annua l one-hour me mbership meeting— if attende es have permission from their supervisors to leave wor

k. L ikewise, org anizations can distribute ce rtain informa tional materials to other employ ees, w ith L ibrary approva l. The prospe ct of be ing de nied these be nefits is simply not “likely

‘to deter victims of discrimination from complaining to the EEOC,’ the c ourts, and [t he L ibrary].” Burlington N

. , 548 U.S. at 68 (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 346 (1997)) . Havingto, for example, have a mee ting of f pre mises or afte r hours is the sort of “slig ht[ ]” or “annoyance [] ” that does not rise to the level of materially adver se ac tion. See id
. Nor is the Court per suaded by the alter nate theor y of mater ial adver sity

that plaintiffs set forth at or al ar g ument. There , plaintiffs argued that non-r ecognition sends a signa l to L ibrary employ ees tha

t the Founda

tion is som ehow illeg itimate; that is, non-recognition st igmatiz es the Foundation and there by

deter s L ibrary

employ ees who are consideringpursuing claims of discrimination from consulting with the Foundation before doing so. B ut there is no sug g estion in the complaint that non-re cog nition has such an ef fec t; on the contrar

y , the complaint alleg es

The full bene fits of L ibrary rec og nition are these : (1) annua l membership 4 meeting s on L ibrary

proper ty during“off

icial time,” not to exceed one hour, provided tha t members a

re c lear ed by

their super

visors to attend; (2) “ [o] ther mee tings a nd activities” on L ibrary premises during“non-duty time,” if appr oved by

the L ibrary ; (3) posting org anizational materia l on L ibrary

bulletin boards; (4) distribution of ce rtain mater ial to L ibrary staff, w ith approva l; and (5) distribution of materia l “desc riptive of [org anizational] activities” by the L ibrary duringnew e mploy ee or ientation. Def .’s Mem. Ex. 4 (L CR 2022-2) at 3. The Court may consider the se L ibrary

regulations when dec iding the L ibraria n’s Rule 12(b)( 6) motion beca use they are “incor

porate d into the complaint by ref ere nce.” Tellabs, Inc. v. M akor Issues &Rights, Ltd. , 551 U.S. 308, 322 (2007); see Compl. ¶ 13. 9only

that non-re cog nition deprives the F oundation of the minimal prac tical bene fits discussed above. T here is no indication that L ibrary employ ees a

void the Foundation as a re sult of nonrec og nition. Moreover, this ar g ument simply does not sug g est that non-re cog nition presents the “dete rre nt prospect of

harm” that is at the hea

rt of the mate rial-a dversity inquiry
. See R attigan , 604 F. Supp. 2d at 52 (e mphasis omitt ed). O n the fa cts alleg ed in the complaint, non-r ecognition appea rs to prese nt no more than a n inconvenienc e for

Foundation members and non- members alike. In rea chingthis conclusion, the Court is mi ndful that, under Burlington Northern , “[c]ontex t matters.” 548 U.S. at 69. B ut having car efully revie wed the a lleg ations in the complaint, the Court cannot c onclude that the dif fer ence betwee n rec og nition and nonrec og nition is signific ant enoug h that a re asonable Foundation member would re fra in from pursuing a cha

rg e of discr imination in order to incre ase he r org anization’s chanc e of r ecognition, or that a non- member w ould be deter red f rom pursuinga complaint by the Founda

tion’s nonrec og nized status. Nothing in the complaint sug g ests that the “surr ounding c ircumstance s, expectations, and re lationships” within the L ibrary would establish otherwise. See id. (quoting Oncale v . Sundowner Offshore Servs., I nc. , 523 U.S. 75, 82 (1998)) ( internal quotation marks omitted). Acc ording ly , the Court must hold t hat plaintiffs have failed to a lleg e a ma terially adver se ac tion that can g ive rise to a T itle VI Ireta liation claim. There is also a furthe r problem, una ddresse d by either pa rty , with plaintiffs’ re taliation claim. As noted a

bove, Title VI Iprohibits retaliation in response to statutorily protec ted ac tivity
. Stewart , 275 F.3d at 1134. Two ty pes of a ctivity

qualify : oppositi on activity (opposing “any prac tice made an unlawf

ul employ

ment prac tice by” Title VI I ) and pa rticipation ac tivity

(making
10a cha

rg e, testifying, a ssisti ng , or par ticipating in a

ny manner in an investig ation, proce eding , or hear ing unde r Title VI I ). 42 U.S.C. § 2000e-3(a ); see also Crawford v. Metro. Gov’ t of Nashvill e &Davidson Cnty. , —U.S.—, 129 S. C t. 846, 850 (2009). He re, pla intiffs aver that the L ibrary ref used to rec og nize the Foundation “be cause th[ e] Foundation has a ssisted employ ees in filing char g es ag ainst it and in helping pr osecute suits filed ag ainst the L ibrary .” Compl. ¶ 21. But activity of either ty pe is protec ted only

if eng ag ed in by

“employees or

applicants for employ ment,” 42 U.S.C. § 2000e-3( a), a nd the Foundation is neither. At one point, the complaint appea

rs to ref er va g uely

to protecte d activity

on the par

t of the F oundation’s “c urre nt and for mer membe rs,” Compl. ¶ 22, but nowher e does it desc ribe spec ific instance s of protec ted activity on the par

t of individual L ibrary

employ ees ( or plaintiffs themselve s). I t is thus unclear that, even if

plaintiffs had a lleg ed a materially adver se ac tion, they

would have a dequate ly

tied that action to ac tivity

protec ted by

Title VI I
. B. P laintif

fs’ EE O
- ReportClaim Is Dism issed Withou t P rej udi ce Plaintiffs’ second c laim alleg es that the L ibrary has violated Title VI Iby

failingto publish annual EEO repor

ts as require d by

42 U.S.C. § 2000e-16(b). I n response to the L ibraria n’s motion to di smiss, however, plaintiffs c oncede that this claim was not administratively exhausted
as re quired by

Title VI Iwhen the c omplaint in thi s action wa s filed. Pls.’ Opp’n at 7–8. Consequently , the Court will, as plaintiffs now re quest, dismiss t his claim without prejudice to allow the completion of the exhaustion process. See, e .g. , Noisette v. Geithner , 693 F. Supp. 2d 60, 70 (D.D.C. 2010) ( dismiss al without prejudice for f ailure to e x haust administrative
reme dies); McAlister v. P otter , 70 F. Supp. 2d 24, 28 (D.D .C. 2008) (same) ; Jones v . Ashcroft , 321 F. Supp. 2d 1, 11–12 (D.D .C. 2004) (same)
. 11IV. CONCLUSION

For the fore g oing r easons, de fenda nt’s motion to di smiss m ust be g rante d. An appropr iate orde r ac companies this memora ndum opinion.

Henr y H. Kenne dy , J r. United States District J udg e

12