Samuel Shanks v. International Union of Bricklayers and Allied Craftworkers

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2025 Decided April 18, 2025
No. 23-7141
SAMUEL SHANKS,
APPELLANT
v.
INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED
CRAFTWORKERS,
APPELLEE
Consolidated with 23-7145
Appeals from the United States District Court
for the District of Columbia
(No. 1:23-cv-00311)
(No. 1:23-cv-00309)
Samuel Shanks, pro se, was on the briefs for appellant.
Taylor Lambert, pro se, was on the briefs for appellant.
Gail S. Coleman, Attorney, Equal Employment
Opportunity Commission, argued the cause for amicus curiae
in support of appellants. With her on the brief were Karla
Gilbride, General Counsel, Jennifer S. Goldstein, Associate

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General Counsel, and Dara S. Smith, Assistant General
Counsel.
Alexandra Mansbach, appointed by the court, argued the
cause as amicus curiae in support of certain of appellants’
claims. With her on the briefs were Ruthanne M. Deutsch and
Hyland Hunt, appointed by the court.
Kathleen Keller argued the cause for appellee. With her
on the brief was Kara A. Naseef. Caitlin Kekacs entered an
appearance.
Before: PILLARD and GARCIA, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: Before the court are
appellants’ remaining allegations of discrimination by their
employer, appellee. The court affirmed in part the dismissals
of the pro se complaints for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), and appointed
amicus curiae to present arguments in favor of the claims
unsuited to summary dismissal.1 Upon review after briefing
and oral arguments, the court affirms the judgments of
dismissal except on claims of disparate impact and
discriminatory treatment that cross the line from conceivable
to plausible, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). That
aspect of the district court orders is reversed and remanded.
1 The court expresses appreciation of the assistance provided by
amicus curiae.

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I.
Appellants are former employees of the International
Union of Bricklayers & Allied Craftworkers. Each sued the
Union as their employer in 2022, proceeding pro se in the
Superior Court of the District of Columbia. Samuel Shanks
worked in accounting for over twenty years and alleged
discrimination based on his disability, race, color, and sexual
orientation. He also alleged that the Union management
subjected him to a hostile workplace due to those
characteristics and retaliated against him for his workplace
advocacy. He alleges that the Union violated the D.C. Human
Rights Act, the Americans with Disabilities Act of 1990, Title
VII of the Civil Rights Act of 1964, and “other applicable Civil
Rights Acts.” Taylor Lambert, his niece who began working
for the Union as a temporary employee in 2015 and became a
full-time employee in 2019, alleged wrongful termination,
retaliation, and discrimination by the Union based on her race,
religion, and gender in violation of Title VII of the Civil Rights
Act of 1964 and “other Civil Rights Acts.”
Following the Union’s federal-question removal of the
cases to the federal court, 28 U.S.C. § 1441(a), the district court
granted the Union’s motions to dismiss the pro se complaints
for failure to state a claim, FED. R. CIV. P. 12(b)(6). Shanks v.
Int’l Union of Bricklayers & Allied Craftworkers, No. 23-311,
2023 WL 6199078, at *6 (D.D.C. Sept. 22, 2023); Lambert v.
Int’l Union of Bricklayers & Allied Craftworkers, No. 23-309,
2023 WL 6388953, at *6 (D.D.C. Sept. 29, 2023). Shanks and
Lambert appealed, and this court affirmed in part the judgments
of dismissal and appointed amicus to present any potentially
meritorious arguments in favor of the claims unsuited to
summary dismissal. Order, Shanks v. Int’l Union of
Bricklayers & Allied Craftworkers, No. 23-7141 (D.C. Cir.
May 29, 2024) (“Shanks Order”); Order, Lambert v. Int’l

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Union of Bricklayers & Allied Craftworkers, No. 23-7145
(D.C. Cir. May 29, 2024) (“Lambert Order”). This court
reviews the district court’s Rule 12(b)(6) dismissal of a
complaint de novo. W. Org. of Res. Councils v. Zinke, 892 F.3d
1234, 1240 (D.C. Cir. 2018).
“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, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), addressing the pleading requirements of FED.
R. CIV. P. 8(a)(2)). Facial plausibility exists when “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Although this standard “is not akin
to a ‘probability requirement,’ . . . it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). Consequently, “[w]here a
complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’” Id.
(quoting Twombly, 550 U.S. at 557). The court must accept the
factual allegations in the complaint as true, id., and view them
in a “context-specific” setting while “draw[ing] on its judicial
experience and common sense,” id. at 679 (citing Iqbal v.
Hasty, 490 F.3d 143, 157–58 (2d Cir. 2007)).
The pro se nature of a complaint places a further gloss on
the standard of review. In addition to according a “plaintiff the
benefit of all inferences that can be derived from the facts
alleged,” Zinke, 892 F.3d at 1240, a pro se complaint must be
“liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers,” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)). The court will “consider a pro se litigant’s

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complaint in light of all filings, including filings responsive to
a motion to dismiss.” Ho v. Garland, 106 F.4th 47, 50 (D.C.
Cir. 2024) (quoting Brown v. Whole Foods Mkt. Grp., Inc., 789
F.3d 146, 152 (D.C. Cir. 2015)).
For the following reasons, then, the court concludes that
when viewed in the context of the Union’s alleged treatment of
minority employees and considered as a whole, there are
allegations of racial discrimination as a result of the Union’s
COVID-19 policy that cross the line from conceivable to
plausible. Iqbal, 556 U.S. at 680.
II.
The following factual allegations are largely undisputed.
In response to the COVID-19 pandemic, the Union announced
on June 6, 2021, by email to its employees a COVID-19
Continuing Readiness Plan, which included safety and health
protocols regarding vaccines. The plan stated the Union would
resume full in-office work beginning September 7, 2021. All
employees were encouraged to “[c]onsider getting a COVID-
19 vaccine as soon as you can.” The plan further stated
“essential business travel” would be resumed and specified:
“Proof of vaccination (vaccination card) will be requested
before you engage in business travel.” Exceptions to the
vaccination requirement would be allowed only for those with
a disability or sincerely held religious belief. Shanks’ and
Lambert’s claims largely flow from this announcement. They
alleged that employees who engaged in business travel for the
Union, who were mostly white, were on notice as of June 6 that
they were required to get the COVID-19 vaccine. By contrast,
employees whose duties did not include business travel, who
were mostly Black, were not required to get vaccinated.

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An all-staff meeting was held the day after the June 6
announcement to discuss the Union’s plan and COVID-19
policy. Additionally, a vaccine hesitancy webinar would be
held on June 16, featuring the head of the National Institutes of
Health, to provide “insights into the latest trends and
developments surrounding the pandemic, address questions,
and dispel myths related to the pandemic and vaccination
initiatives.” The webinar was primarily directed toward
members of the Union’s Employer Council, but headquarters
employees who engaged in business travel were also invited.
Headquarters employees who did not engage in business travel
were not invited. And when a link to the recording of the
webinar was emailed to Union members, the non-traveling
employees were allegedly again left out.
On August 19, 2021, by email to its employees, the Union
announced a revised COVID-19 policy. It stated “all
employees will be required to be fully vaccinated against
COVID 19” by October 4. The policy specified: “An employee
will be considered ‘fully vaccinated’ two weeks after receiving
a second dose in a two-dose series, such as the Pfizer or
Moderna vaccines, or two weeks after receiving a single dose
of a one-dose vaccine, such as the Johnson & Johnson
vaccine.” Any employee not fully vaccinated would be
suspended without pay for one week, and an employee who
failed to provide proof of being “fully vaccinated” after that
week would “be terminated.” Employees had until September
13 to request an accommodation for reasons of disability or a
sincere religious belief.
No follow-up staff meeting was scheduled after the August
19 announcement. Head Shop Steward Mosely sought a
meeting with the Union’s management to urge that it extend
the September 13 deadline to request accommodations, based
in part on non-traveling employees’ difficulties in securing

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appointments with their medical doctors before the deadline.
The meeting was initially scheduled for September 7 but twice
postponed by the Union. A meeting finally occurred on
September 20. By then the September 13 deadline had passed.
On October 1, the Union extended the October 4 vaccine
deadline to October 18 but did not extend the September 13
deadline for requesting accommodations.
On October 4, Shanks sent emails to the Union president
and to General Counsel O’Connor and the Human Resources
Manager, stating that the COVID-19 mandate will “overly
affect” Black employees in comparison to other groups.
Shanks noted the tight deadlines to receive a vaccine or speak
with a doctor or religious leader about an accommodation, the
need for an interim testing option (at no cost to the Union), and
that Black Americans are the most vaccine hesitant group due
to documented medical experimentation on them in the
Tuskegee Experiment and as slaves. Lambert also emailed the
Union on October 4, stating her personal objection to being
vaccinated. Upon notifying the Union they were not
vaccinated, access to their email accounts was blocked. Shanks
was suspended without pay on October 5 and fired on October
12. Lambert alleged she was fired when the Union treated her
October 4 email as a resignation.
III.
In the remaining allegations of racial discrimination before
this court, Shanks and Lambert focus on the Union’s two-stage
roll-out of the COVID-19 vaccination policy. They claim this
had a disparate impact on them as Black non-traveling
employees and resulted in their discriminatory treatment.
Shanks alleged in his pro se complaint that the “unevenly
applied Covid 19 Vaccination Policy . . . would cause
additional disparate impact/treatment to Black American

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employees compared to our white counterparts.” Compl. 1
(referring to his October 4 emails, emphasis added). He
opposed the Union’s motion to dismiss his complaint on the
same grounds. Shanks Opp’n to Mot. to Dismiss 15. Shanks
and Lambert claimed that as a result of the Union’s COVID-19
policy, six employees (five of whom were Black) were
suspended and three Black employees were fired. Shanks
Opp’n to Mot. to Dismiss 27; Lambert Opp’n to Mot. to
Dismiss 25.
A.
For a disparate impact claim, “a plaintiff must generally
‘demonstrate with statistical evidence that the practice or
policy has an adverse effect on the protected group.’” Greater
New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. &
Urb. Dev., 639 F.3d 1078, 1085–86 (D.C. Cir. 2011) (quoting
Garcia v. Johanns, 444 F.3d 625, 633 (D.C. Cir. 2006)). At
the motion to dismiss stage, a plaintiff must plausibly allege
that a disparity exists and identify a practice or policy that
plausibly caused the disparity. Mandala v. NTT Data, Inc., 975
F.3d 202, 207 (2d Cir. 2020); cf. Nanko Shipping, USA v.
Alcoa, Inc., 850 F.3d 461, 467 (D.C. Cir. 2017).
In their pro se complaints and oppositions to the Union’s
motions to dismiss, Shanks and Lambert identified a specific
employment policy in the Union’s COVID-19 vaccination
policy, which was implemented at different times and with
different informational resources for traveling and non-
traveling employees, even though both groups of employees
had to comply by the same vaccination and accommodation
request deadlines. To demonstrate this had a disproportionate
effect on the Headquarters’ Black employees they offered
statistics showing a disparate impact by race. See Shanks
Compl. 1; Shanks Opp’n to Mot. to Dismiss 12–14, 27;

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Lambert Compl. 1; Lambert Opp’n to Mot. to Dismiss 21–25,
38–40.
Notably, the Union’s two-stage roll-out of the COVID-19
policy meant there were different procedures for traveling and
non-traveling employees that made complying with the
COVID-19 mandate more difficult for the non-traveling
employees, a majority of whom were Black. These employees
had far less time to comply with the COVID-19 policy and less
information to assist them in resolving their concerns about the
vaccines. Although 75% of white employees had 118 days to
comply because they were traveling, only 11% of Black
employees were traveling and accorded the same amount of
time and information. Lambert Opp’n to Mot. to Dismiss 21,
38. In contrast, non-traveling employees were afforded
approximately seventy-two days less time to obtain their first
dose of a two-dose vaccine: a non-traveling employee
receiving a two-dose (Moderna or Pfizer) vaccine would need
to receive a first dose within four or eleven days, respectively,
of the August 19 announcement of the revised COVID-19
policy to be “fully vaccinated” by October 4. Shanks Email
Oct. 4, 2021. Although employees theoretically had eighteen
days to receive the one-dose vaccine to meet the October 4
deadline, that vaccine (Johnson & Johnson) had allegedly been
taken off the market due to adverse reactions. Shanks Opp’n
to Mot. to Dismiss 15.
The pro se plaintiffs pointed to a clear statistical difference
between Black and white employees under the Union’s
COVID-19 policy. See Davis v. District of Columbia, 925 F.3d
1240, 1251 (D.C. Cir. 2019). Shanks and Lambert compared
the rates at which Union employees were fired or adversely
affected. Taking as a true benchmark the Union’s 51 white
employees and 37 Black employees, for a total of 124
employees: 8% of Black compared to 0% of white employees

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were fired, and 13.5% of Black employees were adversely
affected, compared to 2% of white employees. See charts,
Exh., Shanks Opp’n to Mot. to Dismiss; Lambert Opp’n to
Mot. to Dismiss 21, 25.
In other words, amicus points out, Black employees were
adversely affected at a rate nearly seven times that of white
employees. Amicus Br. 30. Roughly 41% of the Union’s total
employees were white and roughly 30% were Black. Even if
Lambert were excluded because, as the Union maintained, she
resigned October 4, amicus noted there is still a substantial
racial disparity, with 11% of Black employees adversely
affected compared to only 2% of white employees. Id. at 30
n.14. Further, 100% of the employees who were fired were
Black (none were white). Looking beyond firings to include
suspensions, 83% of the adversely affected employees were
Black. Id. at 31. The percentages of all those fired (100%) or
adversely affected (83%) who are Black are markedly
disproportionate to the percentage of all Union employees who
are Black (30%). Id. at 31.
Shanks and Lambert have not cherrypicked the statistics in
the manner the Union suggests. Their preliminary statistics
suffice at the pleading stage to allege “a disproportionate
impact on the minorities in the total group to which the
[COVID-19] policy was applied.” Greater New Orleans, 639
F.3d at 1086 (quoting Betsey v. Turtle Creek Assocs., 736 F.2d
983, 987 (4th Cir. 1984)). Comparison of the rate of adverse
effects on two comparator groups is appropriate. See Mandala,
975 F.3d at 210 (citing Wards Cove Packing Co. v. Atonio, 490
U.S. 642, 651 (1989)); Davis, 925 F.3d at 1251. Their statistics
about Black and white employees fired and adversely affected
as a result of the Union’s COVID-19 policy can offer “a sound
benchmark for assessing the disparateness of” the policy, not a

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“completely artificial metric.” Greater New Orleans, 639 F.3d
at 1086, 1087.
Likewise, the Union’s focus on the small number of
adversely affected employees overlooks that at the initial
pleading stage “basic allegations” of statistical comparisons
can suffice. Adams v. City of Indianapolis, 742 F.3d 720, 733
(7th Cir. 2014). In Chaidez v. Ford Motor Company, 937 F.3d
998 (7th Cir. 2019), the plaintiffs simply alleged “the racial
makeup of [the defendant’s] workforce is not consistent with
the racial demographics of the areas surrounding the . . . plant,”
id. 1007 (internal citation and quotation marks omitted). See
Divine Equal. Righteous v. Overbrook Sch. for the Blind, No.
23-846, 2023 WL 4763994, at *7 (E.D. Pa. July 26, 2023).
Although a plaintiff must demonstrate “that the challenged
practice actually has a disparate impact,” Shanks and Lambert
need not offer a statistical analysis that meets the prima facie
standard. Mandala, 975 F.3d at 209–10; see Brady v. Off. of
the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). As
the Second Circuit explained, at this initial stage of the
proceedings a plaintiff’s complaint need not “prove in detail
the methodological soundness of her statistical assessment to
survive a motion to dismiss” and a complaint need not
“supplement its statistical analysis with corroborating
evidence.” Mandala, 975 F.3d at 209–10.
Shanks and Lambert also asserted that the Union provided
less information to non-traveling employees than to traveling
employees to assist them in resolving their concerns about the
COVID-19 vaccines. No staff meeting was scheduled after the
August 19 announcement to discuss the revised COVID-19
policy and answer questions. Only traveling employees (who
represent 75% of the Union’s white employees and only 11%
of its Black employees) were invited to the June 16 webinar,
and a recording of the webinar was not made available to the

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non-traveling employees (who represent 25% of the Union’s
white employees and 89% of its Black employees). Shanks
Opp’n to Mot. to Dismiss 13; Lambert Opp’n to Mot. to
Dismiss 22. According to Lambert, 89% of Black employees
were “excluded . . . from participating” in the June 16 vaccine
hesitancy webinar. Lambert Opp’n to Mot. to Dismiss 38. Yet
as a member of the COVID-19 Community Corps, the Union
received information from the federal government that Black
Americans as a group have a higher level of vaccine hesitancy
than white Americans. Shanks Opp’n to Mot. to Dismiss 3;
Lambert Opp’n to Mot. to Dismiss 20–21.
Critically, non-traveling employees were afforded far less
time to apply for an accommodation: just 25 days as opposed
to as much as 99 days for traveling employees. Union
management denied the representative of these mostly Black
employees a timely meeting to explore extending the
September 13 deadline for requesting accommodations.
Viewed most favorably to the pro se plaintiffs, the Union’s
October 18 extension of the vaccination period did not provide
adequate time for newly vaccinated employees to be “fully
vaccinated.”
The district court does not appear to have questioned that
Shanks and Lambert had identified a policy and suffered an
adverse effect, only that they had failed to plead causation. The
court found Shanks “failed to plead facts that plausibly allege
that he was terminated for reasons other than his violation of
the Policy,” Shanks, 2023 WL 6199078, at *11, and Lambert
was fired “because of [her] own voluntary failure to adhere to
the Policy and failure to request an accommodation,” Lambert,
2023 WL 6388953, at *10. On appeal the Union reprises its
argument that in “nearly all cases applying disparate impact
theory over the past fifty years, the policy under attack imposed
some barrier that was related to the protected status of the

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demographic group challenging it.” Appellee’s Br. 47.
According to the Union, Shanks and Lambert faced no race-
related barrier to getting vaccinated and their refusal was a
voluntary choice not to comply. This misstates the causation
analysis.
Under appellants’ theory of the case, the Union’s vaccine
policy imposed a race-related barrier because, due to a history
of discrimination and mistreatment by the medical
establishment, Black Americans are more likely than whites to
be skeptical of vaccines. Taking appellants’ allegations as true,
the Union affirmed as much. The Union was a member of the
COVID-19 Community Corps, which “highlighted the need to
especially reach out to Black Americans,” who due to
mistreatment by medical authorities, are disproportionately
likely to be vaccine hesitant. Shanks Opp’n to Mot. to Dismiss
3. The Union’s webinar for its Employer Council was aimed
at addressing such vaccine hesitancy. These allegations frame
vaccine hesitancy as the result of historical inequalities of
which the Union was aware, in line with the paradigmatic
disparate impact cases. See, e.g., Griggs v. Duke Power Co.,
401 U.S. 424, 430–32 (1971).
Further, courts have consistently considered disparate
impact claims even though plaintiffs’ voluntary “choice”
played some role in the circumstances that caused them to
violate a policy. But under the Union’s restrictive theory,
Black plaintiffs would have lacked a viable disparate impact
challenge to Duke Power’s high school degree requirement for
inter-plant transfers because they “chose” not to complete high
school. Griggs, 401 U.S. at 430–32. So too, plaintiffs who
chose to enter the country without documentation, Reyes v.
Waples Mobile Home Park Ltd. P’ship, 903 F.3d 415, 427–29
(4th Cir. 2018), or did not move into an area covered by an
employer’s residency requirement, NAACP v. N. Hudson Reg’l

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Fire & Rescue, 665 F.3d 464, 469, 479–81 (3d Cir. 2011), or
chose not to entertain competing job offers at other institutions
and missed out on retention raises, Freyd v. Univ. of Or., 990
F.3d 1211, 1224 (9th Cir. 2021), or refused to take a loyalty
oath for religious reasons, Bolden-Hardge v. Off. of Cal. State
Controller, 63 F.4th 1215, 1227–28 (9th Cir. 2023). Moreover,
in New York City Transit Authority v. Beazer, 440 U.S. 568,
573–76, 585–87 (1979), the Supreme Court assumed a policy
against employing methadone users could cause a disparate
racial impact even though methadone use was a choice.
In sum, Shanks and Lambert’s pro se allegations of
disparate impact are neither deficient because conclusory “bare
assertions,” as in Twombly, see Iqbal, 556 U.S. at 681, nor
contrary to the law on causation. The Union’s motions for Rule
12(b)(6) dismissal of the pro se complaints overlooked
favorable inferences flowing from the statistics and failed to
construe the complaints liberally. See Pardus, 551 U.S. at 94.
On remand, the district court can parse the claims among
Shanks and Lambert in considering the Union’s arguments for
bringing this litigation to a close. For now, viewing the pro se
allegations as true, Ho, 106 F.4th at 50, the disparate impact
allegations of racial discrimination cross from “conceivable to
plausible,” id. at 51 (quoting Brown, 789 F.3d at 152, in turn
quoting Twombly, 550 U.S. at 570).
B.
“[T]he two essential elements” for a discriminatory
treatment claim under Title VII and the D.C. Human Rights
Act, “are that (i) the plaintiff suffered an adverse employment
action (ii) because of the plaintiff’s race, color, religion, sex,
national origin, age, or disability.” Baloch v. Kempthorne, 550
F.3d 1191, 1196 (D.C. Cir. 2008); see Mungin v. Katten
Muchin & Zavis, 116 F.3d 1549, 1553 (D.C. Cir. 1997). A

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complaint “does not need detailed factual allegations,”
Twombly, 550 U.S. at 555, but must raise an inference “that
race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors
also motivated the practice.” 42 U.S.C. § 2000e-2(m)
(emphasis added); see Brown v. Sessoms, 774 F.3d 1016, 1022
(D.C. Cir. 2014). The court’s “role is not to speculate about
which factual allegations are likely to be proved after
discovery,” but only to consider whether the “alleged facts that,
taken as true, render [their] claim . . . plausible.” Harris v.
D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015).
There is obvious overlap between the disparate impact and
discriminatory treatment claims in Shanks’ and Lambert’s pro
se complaints. Again, they alleged the Union adopted a
COVID-19 policy that accorded most Black employees
significantly less time to comply or seek an accommodation
than most white employees and provided fewer resources to
assist them in resolving vaccine concerns despite knowing their
racial group was far more likely to be vaccine hesitant than
whites. These circumstances may support the low threshold for
an inference that the Union’s policy would have adverse effects
on the non-traveling employees, a majority of whom were
Black, but may not always be sufficient to support an inference
of discriminatory motivation. Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 279 n.25 (1979).
“There are multiple ways in which circumstantial evidence
may support an inference” of “invidious motive,” including
“the employer’s ‘general treatment of minority employees.’”
Allen v. Johnson, 795 F.3d 34, 40 (D.C. Cir. 2015) (quoting
Brady, 520 F.3d at 495 n.3). Here, Shanks and Lambert allege
that at Union Headquarters where they worked there were
ongoing salary and benefit disparities between white and non-
white employees, and that they personally had repeatedly

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brought these issues to the attention of Union management to
no avail. Shanks Compl. 1; Lambert Compl. 1; Shanks Opp’n
to Mot. to Dismiss 6–8, 11; Lambert Opp’n to Mot. to Dismiss
13, 31–32. Shanks pled, for instance, that the Union
management repeatedly “targeted” Black employees to punish
them and was “over policing” them. Shanks Opp’n to Mot. to
Dismiss 9, 12. Shanks and Lambert pled that non-white
employees were denied promotion opportunities. Shanks
Opp’n to Mot. to Dismiss 10–11; Lambert Opp’n to Mot. to
Dismiss 31. And they allege the Union management has
ignored these problems and concerns. Shanks Compl. 1;
Shanks Opp’n to Mot. to Dismiss 6; Lambert Opp’n to Mot. to
Dismiss 39.
The Union justified its August 19, 2021, COVID-19
policy mandating vaccines as one of “the steps necessary to
keep [the] workplace safe” upon the “return to full on-site
operations.” Human Res. Mem. (Aug. 19, 2021). As of July
31, 2023, the Union still had not returned to full on-site
operations. Such “changes and inconsistencies’ in the
employer’s given reasons” for the challenged policy are treated
by the court as an additional circumstance that can support an
inference of discrimination. Allen, 795 F.3d at 40.
At the threshold stage of the proceedings before discovery,
the court’s conclusion is necessarily limited. Harris, 791 F.3d
at 70. Viewed contextually as a whole and liberally construing
the pro se complaints, the allegations on which Shanks and
Lambert rely for an inference that race was a motivating factor
in the termination of their employment “nudge” their
discriminatory treatment claims from “conceivable to
plausible.” Ho, 106 F.4th at 51 (internal quotations and
citations omitted). It remains for the district court on remand
to parse the claims among Shanks and Lambert in considering

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the Union’s arguments for bringing this litigation to a close and
to determine the nature of further proceedings.
IV.
To the extent appellants seek to pursue claims of
discrimination on grounds other than race, those claims were
insufficiently pled to survive the Union’s Rule 12(b)(6)
motions to dismiss. Shanks’ allegation that the Union
discriminated against him based on his sexual orientation, and
Lambert’s allegations that the Union discriminated against her
based on her gender and religion are not “squarely and
distinctly” spelled out in their pleadings. Schneider v.
Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005). Such
passing references without developed circumstance or
sufficient context are insufficient. See Iqbal, 556 U.S. at 679.
This court has affirmed the dismissal of Lambert’s claims
related to her March 2021 suspension, which is the only context
in which she claimed sex discrimination on appeal. Lambert
Order at 1 (May 29, 2024).
Shanks’ allegation of a hostile work environment is also
deficient. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115–17 (2002). “In determining whether an actionable
hostile work environment claim exists, [the court] look[s] to
‘all the circumstances,’ including ‘the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’” Id. at 116 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993)). A “plaintiff must show that his
employer subjected him to ‘discriminatory intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.’” Baloch, 550 F.3d at 1201

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(emphasis added). A claim that “consists of several individual
acts” may “become actionable due to their ‘cumulative
effect,’” but those actions “must be ‘adequately linked’ such
that they form ‘a coherent hostile environment claim.’” Baird
v. Gotbaum, 792 F.3d 166, 168–69 (D.C. Cir. 2015). To
determine whether individual acts are adequately linked, the
court considers the frequency of the individual acts and
whether they involve the same managers and the same kind of
employment action. Id. at 169.
Shanks’ hostile work environment claim spans 14 years,
from 2007 through 2021, and involves a variety of Union
managers and employment actions. The alleged individual
acts — e.g., ignoring questions submitted in person or by
email, issuing a citation for a policy violation, and failing to
provide resources to address vaccine hesitancy — are
separated in time by many months or years and are
inadequately linked. Baird, 792 F.3d at 168–69. So too,
claimed salary disparity and denials of promotion and cost-of-
living increases are insufficiently pled where personnel actions
are summarily alleged, discrete, or not so hostile or abusive as
to alter the conditions of employment by “subject[ing] him to
‘discriminatory intimidation, ridicule, and insult.’” Baloch,
550 F.3d at 1201 (quoting Harris, 510 U.S. at 21); see Morgan,
536 U.S. at 116.
Accordingly, the court affirms the judgments dismissing
appellants’ remaining pro se claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) and reverses the orders on claims
of racial disparate impact and discriminatory treatment that
cross the line from conceivable to plausible, Iqbal, 556 U.S. at
680, which are remanded to the district court.

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