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Worth v. Jackson


July 19, 2005


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


Currently before the Court are (1) the defendants' Motion to Dismiss and for Summary Judgment ("Defs.' Mot.") and their Memorandum in Support of Defendants' Motion to Dismiss, and for Summary Judgment ("Defs.' Mem."); (2) the plaintiff's Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss the Amended Complaint ("Pl.'s Opp'n"); and (3) the defendants' Reply Memorandum in Support of Defendants' Motion to Dismiss and for Summary Judgment ("Defs.' Reply").*fn1 For the reasons set forth below, this Court grants the defendants' motion.

I. Background

The facts in this case have been exhaustively discussed in this Court's prior Memorandum Opinions and thus will only be reviewed here to the extent necessary to resolve the pending motion. See Worth v. Jackson, Civ. Action No. 02-1576, slip op. at 1-4 (D.D.C. February 23, 2005) (hereinafter "Worth II"); Worth v. Jackson, Civ. Action No. 02-1576, slip op. at 2-6 (D.D.C. January 5, 2004) (hereinafter "Worth I"). The plaintiff, Dennis Worth, is a white male employed at the Department of Housing and Urban Development ("HUD") in St. Louis, Missouri. He brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), and the Fifth Amendment to the United States Constitution to challenge "affirmative employment plans ["AEPs"] that [allegedly] discriminate on the basis of race, ethnicity, and gender . . . ." Second Amended Complaint ("Compl.") ¶ 1. In addition, the plaintiff also challenges HUD's practice of "provid[ing] employment goals, target deadlines, managerial appraisals and incentives only for alleged 'underrepresented' racial minorities and women, and not for whites or males, even when whites or males are 'underrepresented' in a job category." Compl. ¶ 19.

Essentially, the plaintiff's challenges can be divided into two distinct categories. First, many of the allegations contained in the second amended complaint were based upon affirmative action plans that were implemented by HUD in accordance with the Equal Employment Opportunity Commissions's ("EEOC") Management Directive 714 ("MD-714").*fn2 See, e.g., Compl. ¶¶ 10-14. Second, the plaintiff challenges HUD's "general hiring and promotions practices." Worth II, slip op. at 9.

On October 1, 2003, MD-714 was superceded by the adoption of MD-715. Id. at 4. Accordingly, the defendants filed a motion to dismiss the plaintiff's first amended complaint, arguing that the case had become moot as a result of the adoption of MD-715. See Defendants' Supplemental Motion to Dismiss the First Amended Complaint. On January 5, 2004, this Court granted in part and denied in part the defendants' motion, concluding that the plaintiff had standing to challenge the defendants' alleged discriminatory policies because the plaintiff had allegedly suffered an injury as a result of the defendants' preferential treatment of minorities, Worth I, slip op. at 12, but that the plaintiff's claims that challenged MD-714 and HUD's AEP were indeed moot because MD-715 explicitly superceded those policies and thus those claims were dismissed.*fn3 Id. However, based upon the record before it, the Court was unable to determine if the plaintiff's allegations of discrimination based on HUD's general hiring, promotion, transfer and retention policies had also been rendered moot by the adoption of MD-715. Id. at 12-13. Thus, the Court permitted the parties to conduct limited discovery on the issue of whether the plaintiff's challenge to these other policies had also been rendered moot by the adoption of MD-715. Id. Following the completion of this discovery, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and for summary judgment pursuant to Rule 56(c). Worth II, slip. op at 4.

With respect to this second motion, on February 23, 2005, this Court granted the defendants' motion to dismiss those claims of discrimination predicated upon the Troy Memorandum*fn4 and those claims of discrimination pertaining to under-representation analyses, multi-year plans, AEP's and goals and targets to remedy underrepresented minorities and women to the extent that these practices had ended following the adoption of MD-715. See Worth II, slip op. at 9-15. At the same time, this Court denied the defendants' motion as to the plaintiff's remaining claims of discrimination because there was some evidence in the record indicating that some of HUD's hiring and promotion policies were not implemented pursuant to MD-714 and may in fact be predicated on independent grounds. Id. at 15-16. It is the merits of these claims that survived the defendants' mootness challenges that are the subject of this opinion.

III. Standards of Review

Under Federal Rule of Civil Procedure 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). In reviewing such a motion, this Court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).

This Court will grant a motion for summary judgment under Rule 56(c) if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, this Court must view the evidence in the light most favorable to the non-moving party. Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Under Rule 56, "if a party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial," summary judgment is warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id. In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

IV. Legal Analysis

The defendants contend that each count of the plaintiff's complaint that remains alive are deficient, and thus they are entitled to judgment in their favor. The Court will address each of the plaintiff's three counts separately.

(A) The Plaintiff's Fifth Amendment Claim

In Count I of the second amended complaint, the plaintiff alleges that the defendants are violating the Due Process Clause of the Fifth Amendment by subjecting him to a system of preferential hiring and promotion. Compl. ¶ 35. The defendants posit that the plaintiff is precluded from brining a constitutional claim against them because Title VII is the exclusive vehicle for pursuing employment discrimination claims. See Def.'s Mem. at 5. Thus, the defendants opine that because the plaintiff has failed to state a claim upon which relief can be granted, Count I should be dismissed. Id. at 7. The defendants rely heavily on Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976), as support for their argument. Id. at 8-10. In opposition, the plaintiff contends that Brown is inapplicable to cases seeking prospective, as opposed to retrospective, relief, and thus is inapposite. See Pl.'s Opp'n at 7. Moreover, the plaintiff avers that it is improper to interpret Title VII in a manner that would preclude the review of "unconstitutional conduct." Id. at 7.

In Brown, the Supreme Court held that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." 425 U.S. at 835. Following an examination of the legislative history that preceded the adoption of Title VII, the Court noted that "congressional intent . . . was to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Id. at 828-29. The Brown holding was predicated on the view that "[t]he balance, completeness, and structural integrity of [Section] 717*fn5 [of Title VII is] inconsistent with the . . . contention that the judicial remedy afforded by [Section] 717(c) was designed merely to supplement other putative judicial relief." Id. at 832. The District of Columbia Circuit has consistently employed the holding in Brown as the basis for dismissing claims of employment discrimination brought on grounds independent of Section 717. For example, in Graham v. Ashcroft, 358 F.3d 931 (D.C. Cir. 2004), cert. denied, 125 S.Ct. 83 (2004), the Circuit Court affirmed the District Court's dismissal of the plaintiff's equal protection claim, holding that Title VII is the exclusive remedy for a federal employee claiming racial discrimination. See also Williams v. Bentsen, 1993 WL 469110, at *1 (D.C. Cir. Nov. 5, 1993) (holding that Title VII provides the exclusive judicial remedy for claims of discrimination in federal employment); Wagner v. Taylor, 836 F.2d 566, 576-77 n.76 (D.C. Cir. 1987) ("[F]ederal employees cannot assert additional or alternative discrimination claims predicated directly upon the Constitution, but must use Title VII as the sole means of litigating their grievances."); Kizas v. Webster, 707 F.2d 524, 543 (D.C. Cir. 1983) (holding that Title VII is the plaintiff's exclusive vehicle for bringing an employment discrimination claim); Torre v. Barry, 661 F.2d 1371, 1374 (D.C. Cir. 1981) ("[A] federal employee who is covered by section 717 may not sue under. . . the Fifth Amendment.").

Additionally, in Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405 (D.C. Cir. 1985), the District of Columbia Circuit concluded that the district court properly dismissed the plaintiff's Fifth Amendment claim, explaining that allowing federal employees to recast their Title VII claims as constitutional claims would threaten the legislative policies underlying Title VII. Id. at 1415. However, Ethnic Employees further concluded that Congress did not intend to prevent federal employees from suing their employers for constitutional violations against which Title VII provides no protection. Id. at 1416; see Gunning v. Runyon, 3 F. Supp. 2d 1423, 1431 (S.D. Fla. 1998) (permitting the plaintiff's First Amendment claim to proceed because his argument was a "free speech and not an employment discrimination claim" and is therefore not cognizable under Title VII). It is therefore clear that an alleged constitutional violation, which is cognizable under Title VII, i.e., capable of being adjudicated by a Court, see Black's Law Dictionary 253 (7th ed. 1999), is not permissible and must be dismissed. Here, the plaintiff's Fifth Amendment challenge is clearly cognizable under Title VII. The plaintiff asserts, as support for his Fifth Amendment claim, that he and the class he seeks to represent have been subjected to discrimination "on the basis of [their] race and gender." Compl. ¶ 34. Moreover, the plaintiff utilizes identical factual allegations to support both his Fifth Amendment and Title VII claims. Compl. ¶¶ 15-27, 33, 37. Clearly, Section 717(a) protects federal employees from the type of discrimination based on race and gender alleged by the plaintiff. 42 U.S.C. § 2000e-16.

Despite the well established precedent on the subject, the plaintiff nonetheless opines that Title VII does not permit the type of prospective relief the plaintiff seeks - injunctive relief.

Pl.'s Opp'n at 7; Compl. ¶ 10. The plaintiff's argument has no merit. Prospective relief is often a remedy in Title VII cases. For example, in Kizas v. Webster, 707 F.2d 524 (D.C. Cir. 1983), the plaintiffs, a class of white male FBI agents who alleged that an affirmative hiring program created preferences for women and minorities in violation of both Title VII and the Fifth Amendment, sought, in addition to other remedies, "an injunction preventing [defendant] Webster 'from continuing his unlawful acts.'" Id. at 532. Based on the holding in Brown, the Kizas court affirmed the district court's dismissal of the plaintiffs' constitutional claim because Title VII was the plaintiffs' exclusive vehicle for pursuing their employment discrimination claims. Id. at 543; see also Ethnic Employees, 751 F.2d at 1413 (seeking an order directing the Library to recognize their organization); Fitzpatrick v. Bitzer, 390 F. Supp. 278, 290 (D.C. Conn. 1974), aff'd in part on other grounds, rev'd in part on other grounds, 519 F.2d 559 (2d Cir. 1975), aff'd in part on other grounds, rev'd in part on other grounds, 427 U.S. 445 (1976) (prospective injunction entered as remedy for violation of Title VII's prohibition against sex-based employment discrimination). Because the plaintiff has a cognizable claim under Title VII, his Fifth Amendment claim must be dismissed.

(B) The Plaintiff's Title VII Claim

In Count II of the plaintiff's second amended complaint, he alleges that HUD's hiring and retention policies violate Title VII. Compl. ¶¶ 28, 37-40. Specifically, the plaintiff asserts that the defendants' have violated Title VII, and will continue to violate Title VII if not enjoined, because they create and maintain impermissible race-conscious and gender-conscious programs and classifications.

Accordingly, defendants have taken personnel actions in violation of Section 717(a)'s mandate that they be "free from any discrimination based on race, color, religion, sex or national origin."

Compl. ¶ 40. Section 717(a) of Title VII provides that "[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). The breadth of Title VII's proscription makes it an appropriate legal tool for bringing class-action claims challenging allegedly discriminatory employment practices. See Bartelson v. Dean Witter & Co., 86 F.R.D. 657, 662 (E.D. Pa. 1980). As the Bartelson court observed in a case in which the plaintiff sought class certification:

[a] [p]laintiff's broad based attack on the employment practices of [her employer] presents a classic example of the across the board approach to Title VII suits, so termed because they allege a single or unified underlying policy or pattern of discrimination attributable to the defendant-employer and seek to rectify the various forms in which discrimination is manifested.

86 F.R.D. at 662; see also Ladele v. Consol. Rail Corp., 95 F.R.D. 198, 201 (E.D. Pa. 1982) ("[P]laintiff in a Title VII class action [may] challenge a wide range of employment practices alleged to result from a common policy or pattern of discrimination. . . .").

To make out a valid claim of discrimination under Title VII, the plaintiff must present direct evidence of discriminatory intent, or, in the absence of direct evidence, the plaintiff can rely on the burden shifting framework enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Mitchell v. Baldrige, 759 F.2d 80, 84-85 (D.C. Cir. 1985) (applying McDonnell Douglas burden shifting framework to Title VII claims). Because the plaintiff presents no direct evidence of discriminatory intent, and instead relies on indirect evidence to establish his Title VII claim, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of discrimination under Title VII, "the plaintiff must establish that (1) [he] is a member of a protected class; (2) [he] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Russel v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). If the plaintiff fails to satisfy his burden of establishing a prima facie case, which is not onerous, see Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), the Court's inquiry ends and the plaintiff's claim must be dismissed, see Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999); Lutes v. Goldin, 62 F. Supp. 2d 118, 136 (D.D.C. 1999). Such is the case here.

As already noted, one component of a prima facie case of employment discrimination is that the plaintiff sustained an adverse employment action. Here, the plaintiff identifies four specific incidents of discriminatory conduct, which he contends resulted in adverse employment actions. Specifically, he alleges that "he [was] unable to compete on equal footing, regardless of race or gender, . . . for the position of Mulitfamily Project Manager in 1997; two Senior Project Manager Positions in 1998; and a Systems Analyst Position in 2002." Compl. ¶ 25. Clearly, non-selection for a position is the type of adverse employment action Title VII is designed to address. See Williams v. Frank, 1991 WL 213220, at *1 (D.D.C. Sept. 30, 1991) (concluding that the plaintiff's race discrimination claim based on the non-selection for a position was brought "in accordance with Title VII").

However, the plaintiff does not seek redress for these alleged acts of discrimination. See Pl.'s Opp'n at 20-21, 24. Rather, he opines that he can seek redress under Title VII for "ongoing discrimination." Id. at 21. A careful review of the pleadings demonstrates why the plaintiff is not relying on the four instances of alleged discrimination as support for his prima facie case of discrimination, as three of the four employment actions were filed untimely and the fourth was clearly not an adverse employment action.*fn6

The plaintiff, by attempting to rely on "ongoing discrimination" to support his Title VII claim is simply trying to make out an end-run around the very clear requirements of Title VII, as relying solely on alleged ongoing discrimination fails to satisfy the requirements of Title VII.

The District of Columbia Circuit has held that to determine whether an action is colorable under Title VII, a personnel action should be examined to determine whether it produced an "objectively tangible harm" which is "adverse in an absolute sense," Brown 199 F.3d at 457-58, thereby having an "immediate effect on employment." Russell, 257 F.3d at 818 (quoting Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1555 (D.C. Cir. 1997)). Because the plaintiff does not base his claim on the four above-mentioned discriminatory acts, but instead bases it on what he characterizes as ongoing discrimination, the plaintiff is unable to prove that he has suffered an adverse employment action as the claim is devoid of evidence of an "objective[] tangible harm." See Brown, 199 F.3d at 457. In other words, by failing to identify a specific adverse employment action as the basis for his Title VII claim, the plaintiff has failed to establish that something has occurred that had an immediate impact on his employment.

Accordingly, because the plaintiff fails to articulate a requisite adverse employment action concerning the alleged pattern of ongoing discrimination, this Court must dismiss the plaintiff's Title VII challenge, as he has failed to establish a prima facie case of discrimination.*fn7

(C) The Plaintiff's Title VII "As Applied" Constitutional Claim

The final count of the plaintiff's second amended complaint is entitled "Constitutionality of Title VII as Applied." Compl. ¶¶ 41-44. Essentially, the plaintiff alleges in this count that Title VII is unconstitutional if "the defendants' employment policies [are] found to violate the Constitution, but Title VII" forecloses his ability to maintain the unconstitutional challenge. Pl.'s Opp'n at 25. Thus, the plaintiff contends that he can challenge the constitutionality of Title VII as applied to him because it would permit the commission of unconstitutional employment practices that are prohibited by the Constitution. Id. The plaintiff advances this claim under the guise that if he is prohibited from challenging HUD's employment policies under both the Fifth Amendment and Title VII, then Title VII must be declared unconstitutional as applied to him. However, had the plaintiff initiated a timely Title VII claim based on any of the four adverse employment actions identified by the plaintiff, which he clearly had the opportunity to do, his Title VII claim could have been maintained. Therefore, the premise underlying this third count of the complaint is lacking, and thus has no merit. In other words, the plaintiff's self-inflicted predicament is hardly sufficient grounds for him to raise an "as applied" constitutional challenge to Title VII. This count must therefore be dismissed.

V. Conclusion

As this Court can fathom no reason to depart from the well-established holding in Brown, the Court must dismiss the plaintiff's Fifth Amendment claim in count I. Furthermore, the plaintiff has failed to establish a prima facie case of discrimination as required by Title VII, thus the plaintiff's Title VII challenge must also be dismissed. Finally, the plaintiff's "as applied" constitutional challenge to Title VII will be dismissed because the factual predicate underlying the claim is lacking. For the foregoing reasons, this Court grants the defendants' motion to dismiss.

SO ORDERED this 19th day of July, 2005.*fn8

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