GRAY v. LAHOOD

Filing 23

MEMORANDUM OPINION & ORDER. See text for details. Signed by Judge John D. Bates on 1/18/2013. (lcjdb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REBECCA R. GRAY,
Plaintiff,
v.

Civil Action No. 11-2188 (JDB)

RAY LAHOOD, Secretary, Department of
Transportation
Defendant.
MEMORANDUM OPINION & ORDER
Defendant Ray LaHood, Secretary of the United States Department of Transportation
(“DOT”), has moved for dismissal or alternatively for summary judgment on two counts of
plaintiff’s discrimination complaint. Plaintiff Rebecca Gray, who worked for the agency after
accepting a position with a government contractor, brought this action pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., alleging that she was not selected
to two positions with the agency due to sex and age discrimination, that her position was
terminated due to retaliation, and that she was subjected to a hostile work environment. DOT
challenges Gray’s termination claim (Count IV), arguing that she was a contractor and not an
“employee” within the meaning of Title VII at the time of her termination. DOT also argues that
Gray’s hostile work environment claim (Count II) should be dismissed because she failed to
exhaust her administrative remedies for this claim and because she fails to state a claim. For the
reasons explained below, the Court will deny DOT’s motion at this time.1

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Gray’s Statement of Material Facts As to Which There Exist Genuine Issues fails to comply with Local Rule 7(h)
because it contains no citations to the record. See Local Rule 7(h)(1) (statement “shall include references to the parts
of the record relied on to support the statement”). Although the Court is ruling in Gray’s favor at this stage, she is
admonished that further failures to comply with the Local Rules may result in adverse factual inferences or other
action by the Court.

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BACKGROUND
Plaintiff Rebecca Gray, a woman born in 1947, is trained in psychology. See Compl.
[Docket Entry 1] ¶¶ 2, 5 (Dec. 9, 2011). In April 1999, she accepted a position as a Human
Factors Analyst with a government contractor providing support services for the Federal
Aviation Administration (FAA), and she then accepted a job with L-3 Communications Titan, a
government contractor providing similar services. See id. ¶ 7. FAA’s Human Factors Research
and Engineering Group within DOT analyzes how people see, hear, think, and physically
function to ensure systems work as effectively and safely as possible. DOT contracted with
HiTech Corporation to perform tasks associated with that work. HiTech, in turn, subcontracted
the work to Titan. See Def.’s Ex. A [Docket Entry 10-3] ¶ 1 (June 15, 2012). Pursuant to these
arrangements, Gray began working onsite at FAA offices in 2001.
In subsequent years, Gray applied for vacancies in the Human Factors branch but was not
selected. See Compl. ¶ 9. In 2006, she filed an Equal Employment Opportunity (EEO) complaint
against DOT under Title VII based primarily on two nonselections. See id. ¶ 14; see also Pl.’s
First EEO Compl. [Docket Entry 20-1] (Jan. 15, 2006). At some point, the agency decided not to
develop an additional statement of work for the HiTech Contract, and in 2008, when the existing
work concluded, Gray was informed that her position was eliminated. See Compl. ¶ 28. The
agency explained that the decision was based on budget constraints. Id. Gray filed a complaint
against DOT based on this termination. Id. Subsequently, on December 9, 2011, Gray filed this
suit.
While performing work for the Human Factors branch, Gray worked full time onsite at
the agency. HiTech and Titan, rather than the agency, paid Gray’s salary and benefits, and

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calculated her leave. The parties dispute the level of supervision agency officials exercised over
Gray’s work.
STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “‘a short and
plain statement of the claim showing that the pleader is entitled to relief,’ 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) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed
factual allegations” are not necessary, to provide the “grounds” of “entitle[ment] to relief,”
plaintiffs must furnish “more than labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555 (internal quotation marks omitted).
“To survive a motion to dismiss, 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, 129 S. Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. D.C. Office of the Mayor,
567 F.3d 672, 681 (D.C. Cir. 2009).
“[I]n passing on a motion to dismiss . . . the allegations of the complaint should be
construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given
every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S.
at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the
Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences
that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193

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(D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Summary judgment, in turn, is appropriate when the pleadings and the evidence
demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears
the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support
its motion by identifying those portions of “the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials,” which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see
also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the Court must regard the non-movant’s statements as true and
accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than
the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. Moreover,
“[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.” Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the nonmovant fails to offer “evidence on which the jury could reasonably find for the [non-movant].”
Id. at 252.
ANALYSIS
I.

Plaintiff’s Status as an “Employee” Under Title VII
a. Procedural Status of “Employee” Requirement

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Title VII provides that “[a]ll personnel actions affecting employees or applicants for
employment . . . in executive agencies . . . shall be made free from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). DOT argues that Gray
was a contractor, not a federal “employee[]” covered by § 2000e-16(a). Because DOT maintains
that the employee requirement is jurisdictional, it further contends that dismissal for lack of
subject-matter jurisdiction under Rule 12(b)(1) is warranted, see Fed. R. Civ. P. 12(b)(1).
As this Court has previously explained, the “employee” limitation in § 2000e-16(a) is not
jurisdictional. See Harris v. Attorney Gen. of the U.S., 657 F. Supp. 2d 1, 7-8 (D.D.C. 2009).
This conclusion follows from the Supreme Court’s decision in Arbaugh v. Y & H Corp., 546
U.S. 500 (2006), which held that a defendant’s status as an “employer” within the meaning of a
different Title VII provision, 42 U.S.C. § 2000e, is not a jurisdictional question, but one that goes
to the merits of the case. In just the same way, the statute’s “employee” requirement in § 2000e16(a) goes to the merits because it “does not speak in jurisdictional terms or refer in any way to
the jurisdiction of the district courts,” id. at 515 (internal quotation marks omitted). And “when
Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat
the restriction as nonjurisdictional in character.” Id. at 516; see also Harris, 657 F. Supp. 2d at 8
(“[T]he question of plaintiff’s ‘employee’ status in this case is so closely analogous to the
question in Arbaugh that plaintiff’s status must be considered a merits issue, rather than a
jurisdictional matter.” (citation omitted)).
Accordingly, this question must be considered under the summary judgment standards of
Rule 56, rather than under the dismissal standards of Rule 12(b)(1), which would have allowed
the Court to “review the evidence and resolve the [factual] dispute,” see Arbaugh, 546 U.S. at
514. The Court notes that no discovery has yet occurred. As explained below, given the state of

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the record at this stage, genuine disputes of material fact remain that preclude a grant of
summary judgment at this time.
b. Determination of Plaintiff’s “Employee” Status
In determining whether a plaintiff is an “employee” of an agency rather than an
independent contractor, the D.C. Circuit applies an elaborate test derived from common-law
agency principles. See Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir. 1979). The “most
important factor to review” under Spirides is “the extent of the employer’s right to control the
means and manner of the worker’s performance.” Id. (internal quotation marks omitted). The
Court must also balance several other factors, which include:
(1) [T]he kind of occupation, with reference to whether the work usually is done under
the direction of a supervisor or is done by a specialist without supervision; (2) the skill
required in the particular occupation; (3) whether the “employer” or the individual in
question furnishes the equipment used and the place of work; (4) the length of time
during which the individual has worked; (5) the method of payment, whether by time or
by the job; (6) the manner in which the work relationship is terminated; I. e., by one or
both parties, with or without notice and explanation; (7) whether annual leave is afforded;
(8) whether the work is an integral part of the business of the “employer”; (9) whether the
worker accumulates retirement benefits; (10) whether the “employer” pays social security
taxes; and (11) the intention of the parties.
Id. at 832. The D.C. Circuit has subsequently clarified the analysis by collecting these factors
into four groups. See Redd v. Summers, 232 F.3d 933, 939-40 (D.C. Cir. 2000).
The first group, the intent of the parties, consists of factor (11) only and plays a relatively
minor role in the analysis. Because “the intent of the parties alone cannot waive protections
granted to an individual under any act of Congress,” the intent to make the individual an
employee “is more likely to prove the relationship than the opposite intent is to disprove it.” Id.
at 939 (ellipsis and internal quotation marks omitted). The second group, comprised of factors
(1), (2), and (8)—the supervision and skill required and whether the task is integral to the
agency’s business—addresses “whether contracting out work is justifiable as a prudent business
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decision” or whether “the business bona fides” of the decision can be questioned, “possibly
suggesting a purpose to circumvent rights afforded to employees.” Id. The third group,
containing factors (3) and (6)—whether the individual or the agency furnishes the equipment and
place of work and the manner of the relationship’s termination—“seem[s] to renew the question
of the client’s control over the work (which, we recall, is in a sense the ultimate determinant).”
Id. The final group of factors “ask[s] whether the relationship shares attributes commonly found
in arrangements with independent contractors or with employees,” by looking at the duration of
engagement, the method of payment, leave, retirement benefits, and the entity that pays social
security taxes (factors (4), (5), (7), (9), and (10)). Id. at 940.
The D.C. Circuit has suggested in dictum that a different test, formulated by the Third
Circuit in NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d
Cir. 1982), might better address “joint employment” situations in which the plaintiff alleges that
she was an “employee” of two organizations at once. See Redd, 232 F.3d at 938; see also Harris,
657 F. Supp. 2d at 9-10. Under Browning-Ferris, the question is whether “one employer, while
contracting in good faith with an otherwise independent company, has retained for itself
sufficient control of the terms and conditions of employment of the employees who are
employed by the other employer.” Redd, 232 F.3d at 938 (alteration omitted) (quoting
Browning-Ferris, 691 F.2d at 1123).
In her opposition, Gray indeed argues that the employment relationship is “joint,” but
neither party cites the Browning-Ferris test.2 Where the parties fail to invoke Browning-Ferris,
the D.C. Circuit has applied Spirides to a joint employment question. See id. (“Accepting the
parties’ assumptions arguendo, we proceed to apply Spirides.”). In any case, because both tests
focus on the control the agency exercises over the terms and conditions of employment, the
2

Gray cites only EEOC cases, but the test she suggests is virtually identical to the D.C. Circuit’s in Spirides.

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analysis is quite similar. See id. (leaving open the question whether “there is a material
difference between the two”). The biggest “misfit” between the two tests concerns the last group
of Spirides factors (duration of engagement, the method of payment, leave, retirement benefits,
and taxes), which probes “whether the relationship shares attributes commonly found in
arrangements with independent contractors or with employees.” Id. at 940. Accordingly, the
Court will be particularly cautious in relying on this set of factors to conclude that a plaintiff is
not an employee where, as here, she has alleged a joint employment relationship. Aside from
exercising that caution, the Court will apply Spirides, as refined in Redd.3
No discovery has yet occurred. On the limited record available, DOT has failed to
establish the absence of a genuine issue of material fact on the most significant question: the
extent of the employer’s right to control the means and manner of her performance.
Gray has submitted a sworn declaration stating that she worked for the agency for several
years, and that she worked exclusively onsite, using the agency’s “computers, copying machines,
secretarial assistance, and whatever else was needed” to complete her assignments. Pl.’s Ex. A
[Docket Entry 14-1] ¶¶ 4, 10 (July 6, 2012). According to Gray’s declaration, Glen Hewitt, an
agency official, was her “immediate supervisor” throughout her employment. Id. ¶ 10. Critically,
Gray declares that Hewitt “assigned [Gray’s] day-to-day work, supervised and monitored what
[she] did and how [she] did it.” Id. In describing their interactions, Gray states that they were
“constant,” including face-to-face meetings, e-mails, and phone calls. Id. Hewitt “control[led]”
Gray’s “daily work assignments,” “determined what meetings, conferences, and seminars [she]
attended,” and approved her travel expenses and what she “did and did not do” at meetings. Id.
Gray attests that “[t]hough technically a contract employee,” she served “solely at Hewitt’s
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Given the Browning-Ferris test’s focus on the terms and conditions of employment—the factors that are ultimately
dispositive to the Court’s analysis here— applying that test instead would lead to precisely the same result. Hence,
regardless of whether the two tests can ever lead to different results, they do not do so here.

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pleasure,” that Hewitt “had the power to have [Gray] replaced by the contractor if he saw fit,”
and that “his evaluation of [Gray’s] performance determined how much [she] was ultimately
paid.” Id. ¶ 11. Gray also declares that Hewitt informed her that her position was eliminated. Id.
¶ 7. To be sure, these statements are quite general, and might well be undercut by specific details
about Gray’s relationship with Hewitt and the influence he had on her daily work. Cf. Arrington
v. United States, 473 F.3d 329, 337-38 (D.C. Cir. 2006) (statements made by the party opposing
motion for summary judgment, if sufficiently conclusory, need not be accepted as true). But if
evidence consistent with Gray’s declaration were adduced at trial, a reasonable jury would be
able to conclude that the agency had a right to control the means and manner of Gray’s
performance. And where “an employer has the right to control and direct the work of an
individual, not only as to the result to be achieved, but also as to the details by which that result
is achieved, an employer/employee relationship is likely to exist.” Spirides, 613 F.2d at 831-32.
Gray’s argument finds further support in the “Delivery Order” for the contract with
HiTech, which appears to be a document specifying the tasks Gray was assigned to perform. See
Pl.’s Ex. D [Docket Entry 14-4] (July 6, 2012). The Delivery Order (only excerpts of which are
part of the record at this stage) describes tasks that are intimately intertwined with the agency’s
day-to-day operations, such as “keeping staff abreast” of efforts, “coordinating program efforts
with the organizations,” participating in meetings, advising the various teams, and “assist[ing] in
the development of” various documentation. Id. at 1, 4. And rather than setting a concrete
schedule, the Delivery Order provides that the tasks be completed “as required by the FAA.” Id.
at 3; see also id. at 8, 9, 11. At least absent further explanation by DOT, the nature of the work
described is consistent with Gray’s statements in her declaration about Hewitt’s extensive
supervision over and absolute control of her day-to-day work.

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Several other factors weigh in DOT’s favor, however. The evidence is undisputed that
DOT did not maintain employment records for Gray, and that the contractor issued her check,
deducted taxes, made retirement contributions, and kept track of her leave (Group 4). It is also
undisputed that the agency intended to treat Gray as a contractor, as reflected by the contract
language (Group 1). But given the substantial dispute about the actual control the agency had
over Gray’s day-to-day work—the critical question—it might well turn out that Gray was an
agency employee in substance, if not in form. In such a case, Title VII’s “employee” limitation
would be satisfied. See Spirides, 613 F.2d at 831 (the determination hinges on “the ‘economic
realities’ of the work relationship”). The Court again emphasizes that the factual dispute might
merely be a result of the underdeveloped record at this pre-discovery stage of the litigation. See
Nixon v. Freeman, 670 F.2d 346, 362 (D.C. Cir. 1982) (“decision by summary judgment is
disfavored when additional development of facts might illuminate the issues of law requiring
decision”). As the record stands, however, DOT has not done enough to establish an absence of a
genuine dispute of material fact and hence to justify summary judgment at this time.
II.

Hostile Work Environment Claim

“Government employees alleging discrimination in violation of Title VII . . . must
exhaust administrative remedies before bringing their claims to federal court.” Hamilton v.
Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012). Gray filed two EEO complaints against DOT
and waited an appropriate amount of time before commencing the suit. Nonetheless, DOT argues
that Gray failed to exhaust her administrative remedies as to the hostile work environment claim
because she did not allege a hostile work environment in her EEO complaints. But DOT’s
argument rests on a faulty factual premise. Gray’s first EEO complaint—which DOT initially
failed to provide to the Court despite purporting to cite and attach “Plaintiff’s EEO Complaint,”

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see Def.’s Mot. to Dismiss in Part [Docket Entry 10-2] at 17 (June 15, 2012)—contains several
paragraphs under the heading “Harassment/Hostile Work Environment.” See Pl.’s First EEO
Compl. at 3. These paragraphs describe negative treatment that Gray labels “shunning,” the
psychological impact of this alleged treatment, similar concerns about “treatment from the
males” experienced by another woman working in the same environment, negative comments
Gray alleges were made “about females working in Human Factors,” and instances in which the
agency officials in question allegedly “reduced to tears” other women. Id. Accordingly, Gray’s
EEO complaint contains both “the words ‘hostile work environment’” and “factual allegations
supporting such a claim.” See Park v. Howard Univ., 71 F.3d 904, 908 (D.C. Cir. 1995)
(dismissing claim for failure to exhaust where EEOC charge contained neither). Compare
Hamilton, 666 F.3d at 1350 (dismissing claim for failure to exhaust where “formal EEO
complaint makes no mention of” challenged incident). To be sure, in its acceptance of the EEO
complaint, DOT identified solely a nonselection claim as “accepted for investigation.” See Letter
from Tami L. Wright to Rebecca Ruth Gray [Docket Entry 20-3] at 1 (Jan. 15, 2013). And Gray,
although responding to the agency’s acceptance to ask that the second nonselection be included,
did not ask that a hostile work environment or general discrimination claim be added. But DOT
has not argued that, for purposes of exhaustion, the contents of the EEO complaint should be
limited by the agency’s acceptance, let alone cited authority to support that proposition, and so
the Court will not, on this record, limit the EEO complaint in this way.
Alternatively, DOT argues that Gray has failed to state a claim as to the existence of a
hostile work environment. See Fed. R. Civ. P. 12(b)(6). A hostile work environment claim lies
only where the workplace “is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and

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create an abusive working environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(citation and internal quotation marks omitted). In support of this claim, Gray alleges that “she
was subjected to intimidation, ridicule, and insulted because of her gender, resulting in a severely
hostile and abusive work environment that adversely affected the terms and conditions of her
work place.” Compl. ¶ 41. Although this statement alone would be plainly inadequate, see
Twombly, 550 U.S. at 555, other portions of Gray’s complaint (incorporated into Count II),
make factual allegations that take this claim beyond mere “labels and conclusions,” see id. For
instance, Gray alleges that another female employee “found the work environment so gender
hostile” that she filed a gender discrimination complaint, Compl. ¶ 19, that Gray “was not treated
professionally as an equal,” id. ¶ 22, that “her input and comments were largely ignored,” id.,
that her supervisor “yelled at Gray, belittled, mocked, and otherwise criticized her competence,”
leading to “mental anguish” that required medical treatment, id. ¶ 23, that several other women
“were victims” of one of the agency officials’ “denigrating comments,” id. ¶ 24, that Gray “was
treated with disdain, snubbed, and excluded from meetings,” id. ¶ 25, and that she was subject to
critical and inaccurate memoranda by her supervisors, id. ¶ 27. Together these allegations
suffice—although barely—to state a plausible claim of a workplace “permeated” with gender
discrimination. See Iqbal, 129 S. Ct. at 1949; see also Twombly, 550 U.S. at 555 (“detailed
factual allegations” are not necessary). Hence, the Rule 12(b)(6) motion will be denied.
CONCLUSION
Accordingly, it is hereby ORDERED that [10] defendant’s motion to dismiss in part or
for summary judgment in part is DENIED; and it is further
ORDERED that defendant shall answer plaintiff’s complaint by not later than February
1, 2013.
SO ORDERED.
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/s/
JOHN D. BATES
United States District Judge
Dated: January 18, 2013

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