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Brookens v. Solis

May 21, 2009

BENOIT BROOKENS, PLAINTIFF,
v.
HILDA L. SOLIS, SECRETARY,*FN1 UNITED STATES DEPARTMENT OF LABOR, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Benoit Brookens has again filed suit against the Secretary of the United States Department of Labor ("DOL") for race and age discrimination and retaliation under Title VII, 42 U.S.C. § 2000e et seq., and under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.*fn2 In a prior lawsuit before this Court, plaintiff raised claims of discrimination and retaliation regarding three positions to which defendant failed to promote him. On October 21, 2008, this Court granted summary judgment in that case, and this ruling was summarily affirmed. Brookens v. Chao, No. 08-0086 (D.D.C. Oct. 21, 2008) ("Brookens I"), aff'd sub nom. Brookens v. Solis, No. 08-5527 (D.C. Cir. May 8, 2009) (per curiam).*fn3 In the instant suit, plaintiff complains about a number of other employment decisions, including denials of promotions, detail requests, desk audits, and a within-grade increase ("WGI") in pay. This matter comes before the Court on defendant's Motion to Dismiss Complaint or in the Alternative for Summary Judgment and on plaintiff's Motion to Stay. For the reasons set forth below, the Court will grant defendant's motions and deny plaintiff's motion.

BACKGROUND

Plaintiff is an African-American male over age forty who holds law and graduate business degrees from Columbia University, New York, New York. (Compl. ¶¶ 7, 8.) He has previously practiced law and taught as an adjunct professor at the University of Virginia, Falls Church, Virginia. (Id. ¶ 9.) Starting in 1990, he was employed by the DOL as an International Economist in the Bureau of International Labor Affairs ("ILAB") at grade GS-12. (Id. ¶¶ 10, 13.)

In February 2007, defendant posted vacancy announcement ILAB 07-068DE/M for a Chief of ILAB's Trade Policy and Negotiations Division. (Id. ¶ 29.) Plaintiff submitted an application for the position in March. (Id. ¶ 30; Declaration of Ericka Witt, dated Jan. 5, 2009 ["First Witt Decl."] ¶ 14(b).) That same month, he also requested a 60-day detail to the position, which was denied. (Compl. ¶ 31.) In April 2007, plaintiff was notified that he was not certified for the position because he failed to meet the time-in-grade requirement. (Id. ¶ 32.) Plaintiff, believing that he was qualified, initiated a formal complaint, but the vacancy announcement was cancelled in May 2007. (Id. ¶¶ 33-34.) Around the same time, plaintiff requested a second detail to the position and a desk audit, both of which were denied.*fn4 (Id. ¶ 35-36.)

In July 2007, defendant re-posted the position for Chief of the Trade Policy and Negotiations Division in vacancy announcement ILAB 07-157DE/M and listed additional qualifications that had not been included in the prior vacancy announcement. (Id. ¶¶ 37-38.) Plaintiff was again determined to be unqualified for the position. (See First Witt Decl. ¶ 15(d).) Instead, Timothy Wedding, a white male whom plaintiff claims was less qualified in the area of trade and policy negotiations and needed training by plaintiff and others to perform the duties of the position, was selected for the vacancy. (Compl. ¶¶ 41-42.) In August 2007, prior to Mr. Wedding's appointment, plaintiff's request for a detail as Acting Chief of the Trade Policy and Negotiations Division was denied. (Id. ¶ 24(c).) Plaintiff then filed a formal administrative complaint alleging race and age discrimination and reprisal based on the DOL's determinations that he was unqualified for the twice-advertised ILAB vacancy and the denial of his requests for details to that position and a desk audit.*fn5 (Id. ¶ 43; Declaration of Naomi Barry-Perez [Barry-Perez Decl.] Attach. 1.)

In December 2007, Mr. Wedding, who by that time had been appointed Chief of the Trade Policy and Negotiations Division, denied plaintiff's request for a desk audit and a WGI. (Compl. ¶¶ 24(e), 46.) Plaintiff thereafter requested reconsideration of the denial of his WGI, which was denied. (See Schoepfle Decl. ¶ 11; Def.'s Ex. A, Brookens v. Dep't of Labor, MSPB No. DC-531D-08-0302-I-1, at 3 (May 1, 2008).) In March 2008, plaintiff filed a formal administrative complaint of discrimination regarding the December 2007 denials of a desk audit and WGI. Both claims were dismissed as untimely, and the WGI claim was also dismissed because plaintiff had elected to file an appeal with the Merit Systems Protection Board ("MSPB"). (Compl. ¶ 51; Barry-Perez Decl. ¶ 4.) The MSPB affirmed the DOL's decision to deny plaintiff's WGI and also found that plaintiff had failed to support his allegations of age discrimination and reprisal, and thereafter, the Equal Employment Opportunity Commission ("EEOC") upheld the finding of no discrimination.*fn6 (Def.'s Ex. A, Brookens v. Dep't of Labor, MSPB No. DC-531D-08-0302-I-1 (May 1, 2008)); Brookens v. Chao, No. 0320080075, 2008 WL 4107416 (E.E.O.C. Aug. 19, 2008).

In this case, in addition to alleging that these actions constituted age and race discrimination, plaintiff also alleges that defendant's actions were in retaliation for his having filed complaints with the EEOC, the MSPB, and this Court.*fn7 (See Compl. ¶¶ 18-25.) Before the Court are defendant's motion to dismiss the complaint or in the alternative for summary judgment, plaintiff's opposition, and defendant's reply, as well as plaintiff's motion to stay the Court's ruling on defendant's summary judgment motion pending completion of discovery, defendant's opposition, and plaintiff's reply. The issues before the Court, listed in the order in which they will be addressed, are as follows:

(1) whether the DOL discriminated against plaintiff based on his race and/or age or retaliated against him based on his prior EEO activity when the agency denied his requests for details in March, May, and August 2007 and his requests for desk audits in May and December 2007;

(2) whether the DOL discriminated against plaintiff based on his race and/or age or retaliated against him based on his prior EEO activity when the agency failed to select him for the position of Chief of the Trade Policy and Negotiation Division in response to vacancy announcement ILAB 07-068DE/M or ILAB 07-157DE/M; and

(3) whether the DOL discriminated against plaintiff based on his race and/or age or retaliated against him based on his prior EEO activity when the agency denied his WGI in December 2007.

ANALYSIS

I. LEGAL STANDARDS

A. Motion to Dismiss

A case must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). However, "the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

In this case, plaintiff is proceeding pro se. The Court is therefore mindful that "complaints or motions drafted by pro se plaintiffs are held to 'less stringent standards than formal pleadings drafted by lawyers.'" Shankar v. ACS-GSI, 258 Fed. Appx. 344, 345 (D.C. Cir. 2007) (quoting Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007)). Plaintiff, however, is a lawyer and an experienced litigant, having pursued the employment ...


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