Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D.C. Cir.: Black ‘temp’ attorney can’t revive race-based claims against staffing company or law firm, (Jun 23, 2025)

By Kathleen Kapusta, J.D.

The appeals court affirmed the dismissal of his federal employment discrimination and hostile work environment claim.

A Black attorney temporary assigned to work at Morrison & Foerster by his legal staffing agency employer failed to convince the D.C. Circuit to revive his Section 1981 and Title VII race discrimination and hostile work environment claims against both entities. Affirming the dismissal of his Section 1981 claims, the appeals court found that he failed to plausibly allege he was similarly situated to other attorneys. Nor, said the court, did he allege a coherent hostile work environment claim. As for his wrongful discharge claim under D.C. law, the D.C. Circuit found the district court lacked jurisdiction to consider it; thus it vacated the lower court’s judgment on that claim and remanded with instructions to dismiss for lack of jurisdiction (Joyner v. Morrison and Foerster LLP, No. 23-7142 (D.C. Cir. Jun. 20, 2025)).

Assignment. The attorney was hired by the legal staffing firm to provide temporary support on an antitrust matter for Morrison & Foerster. He claimed that upon his arrival at the law firm, he was not assigned to work on a particular “workstream” like Caucasian attorneys but was instead assigned to work on “integration calls not previously assigned to integration team members.” As a result, he alleged, this affected the number of hours he could work and his compensation.

Comments. He also alleged that when he mentioned he was a prepaid wireless customer, a Morrison associate commented that prepaid wireless customers were “low class” and he made this comment knowing that “a large percentage of prepaid customers were African American.” During his time there, he claimed, he was called “Boy;” someone stated that it was “stupid” for several students to post pictures of themselves posing with rifles in front of Emmett Till’s memorial because they should have preserved their “anonymity;” and a group of coworkers discussed their participation in Civil War reenactments “as members of the Confederacy.”

Harassment. In addition, he alleged that a Caucasian coworker subjected him to physical intimidation and verbal and mental abuse on an ongoing basis and lodged unsubstantiated claims against him with the superior court’s domestic violence unit.

About six months after he started working at the firm, he was fired, purportedly after he reported potential antitrust violations to firm leadership.

Lower court proceedings. The attorney then sued the staffing firm, Morrison, and several individuals alleging violations of Section 1981 and Title VII as well as wrongful discharge in violation of D.C. law. The district court dismissed all his claims with prejudice.

Section 1981 claim—law firm. On appeal, the D.C. Circuit first addressed the attorney’s Section 1981 race discrimination claim against Morrison based on his allegation he was not assigned to a “workstream” for more than two months but was instead assigned to work on integration calls. Rather than allege facts suggesting this assignment was racially motivated, he asked the court to infer race discrimination from allegations indicating he “was treated differently from similarly situated employees” outside his protected class.

Comparator allegations. Turning to its case-by-case application of the plausibility standard, the appeals court noted that each complaint it has found sufficient to proceed on a comparator theory has contained allegations that a comparator was similarly positioned to the plaintiff in at least some relevant respects. The complaint has also included enough detail so that the court could plausibly infer that discrimination caused the defendant’s differential treatment of the plaintiff.

Finding the attorney failed to meet the plausibility standard, the court pointed out that his only allegations about comparators were in a footnote where he stated that three Caucasian attorneys who began at Morrison either before or after him were immediately assigned to workstreams and that “all attorneys that were [not African American and were] hired through [the staffing company] were immediately assigned to workstreams.”

Explaining that these allegations were insufficient, the court noted the lack of information regarding the other attorneys’ experiences or qualifications relative to his. Further, as to the three specific attorneys he identified, he did not allege that they were placed at the firm through the staffing company as opposed to being hired directly or through a different staffing firm. Nor did he allege that the staffing firm attorneys worked on his, or a similar, project.

It was also unclear to the court what a “workstream” was, how many there were, or what would make someone qualified for a workstream assignment. The attorney also failed to allege that the same supervisor was responsible for deciding whether to place him and the other attorneys on a workstream. “The problem for [the attorney],” said the court, “is that he pleaded essentially no facts at all to show that his identified comparators were similarly situated to him in relevant respects except that they were attorneys working at the same law firm.” Taken together with the vagueness of a “workstream” assignment and the lack of allegations showing the same decisionmakers made assignments to the “workstreams,” the court found his general allegations about comparators were not sufficient to assess whether Morrison’s treatment of him was racially motivated.

Section 1981 claim—staffing firm. As to the attorney’s Section 1981 claim against the staffing firm alleging it denied his request to work remotely for three days even though it “had authorized similar or longer remote work for Caucasian” employees, there were no allegations regarding the comparators or the circumstances of their remote work requests. While he did identify one Caucasian attorney who received permission to work remotely for two weeks, he did not allege that he was employed by the staffing firm or that the staffing firm was otherwise responsible for any remote work arrangement. Thus, the court found he failed to sufficiently allege the staffing firm denied his request because of his race.

Hostile work environment. And while the attorney also sued both entities for hostile work environment in violation in violation of Section 1981 and Title VII, the court found he failed to state a claim against Morrison. He pointed to statements by other attorneys working in the same conference room—including the comments about Emmett Till, Civil War reenactments, and being called “Boy”—but he did not plausibly allege his supervisors were aware of these incidents or that he told any supervisor about them.

As to his allegation he brought his concerns about one coworker’s abuse and false claims to Morrison, he also alleged that the law firm quickly responded to these concerns. Thus, said the court, pursuant to the complaint itself, Morrison was not negligent in addressing the underlying conduct. Because his remaining allegations did not approach the level of serve or pervasive harassment, the court found he failed to sufficiently allege a hostile work environment claim against Morrison.

His claim against the staffing firm failed for similar reasons. He alleged that he reported his concerns about his coworkers to the staffing firm but did not allege that it employed those coworkers or that it could take any action against them. Nor did his allegations against the firm rise to the level of an objectively hostile or abusive work environment.

Wrongful discharge. Turning to his wrongful discharge claim under D.C. law, the court noted that because he did not allege diversity of citizenship between himself and the defendants, the only potential basis for federal jurisdiction over that claim was 28 U.S.C. § 1367(a), which provides for supplemental jurisdiction over claims that are “so related... that they form part of the same case or controversy” as claims over which a federal court has original jurisdiction. Here, said the court, there was no meaningful overlap between the operative facts of the federal and state claims.

His federal claims involved allegations of racial discrimination and a hostile work environment while working at Morrison while his D.C. law claim alleged he was wrongfully discharged for reporting to Morrison what he believed to be improper disclosure of competitively sensitive information. “The only facts in common between the federal claims and the D.C. law claim are the background facts that [the attorney] was employed by [the staffing firm] and placed at Morrison;” and those, the court stated, “are not ‘operative’ facts in the sense the case law requires.”

Although the court acknowledged that it had not directly confronted an analogous fact pattern, it noted that “the weight of authority in other circuits and in this circuit’s district court suggests that such a minimal connection between claims is insufficient to support supplemental jurisdiction.” Accordingly, the court vacated the judgment on this claim and remanded with instructions to dismiss for lack of jurisdiction.

The case is No. 23-7142.

Judge: Garcia, B.

Attorneys: Junius Jay Joyner, III, pro se. David Lawrence Schenberg (Ogletree Deakins) for Morrison & Foerster LLP, Mestel & Company New York, LLC, and Evan M. Harris.

Companies: Morrison and Foerster LLP; Mestel & Company

Cases: RaceDiscrimination Discrimination Discharge StateLawClaims DistrictofColumbiaNews