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Burkes v. Holder

United States District Court, District of Columbia

July 15, 2013

ERIC HOLDER JR., Attorney General of the United States, [1] Defendant

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[Copyrighted Material Omitted]

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For RICHARD W. BURKES, Plaintiff: Donna Williams Rucker, LEAD ATTORNEY, RUCKER & ASSOCIATES, PC, Washington, DC.

For ERIC H. HOLDER, JR., Attorney General of the United States, in his official capacity, ROBERT S. MUELLER, III, Director, Federal Bureau of Investigation, in his official capacity, Defendants: Laurie J. Weinstein, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


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Emmet G. Sullivan, United States District Judge.

Plaintiff Richard Burkes brings this action seeking damages for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ) based on plaintiff's race, hostile work environment and retaliation for protected activity. Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing plaintiff failed to exhaust his administrative remedies and failed to state a claim on which relief can be granted. Upon consideration of the motion, the entire record herein, and for the reasons stated below, the motion to dismiss will be GRANTED IN PART AND DENIED IN PART.


A. Plaintiff's Complaints to Management in Late 2009 and Early 2010; Plaintiff Observes Stuffed Monkey Hanging from Eraser Board in February 2010.

Plaintiff has been employed by the FBI since March 1988, and has served as a Lead Program Analyst within the Records Management Division since June 2008. Compl. ¶ 13. In late 2009 and again in early 2010, Mr. Burkes made complaints to the Department of Justice Office of Inspector General and Bradley Creamer, his Shift Supervisor, of differential treatment of White employees and African American employees. Id. ¶ 14. He also reported security violations involving contractors, specifically, that Contract Manager Jackie Cox was involved in security violations. Id. ¶ 15. Ms. Cox is a friend of Mr. Creamer's, and plaintiff alleges that Creamer told Cox that the plaintiff had complained about her activity, and that she should " try to get something" on the plaintiff. Id. Ms. Cox was eventually terminated as a result of plaintiff's complaint. Id. ¶ 17.

On February 17, 2010, the plaintiff witnessed a stuffed monkey hanging by its neck on an eraser board in a public work area within the office, which was allegedly hung by Mr. Creamer. Id. ¶ 18. Mr. Burkes immediately complained to a supervisor and the Department of Justice's Office of Inspector General, and informed them both that he believed the display was discriminatory. Id. ¶ 19. Plaintiff alleged Mr. Creamer took the toy monkey down, but then placed the monkey in an overhead bin in his cubicle, where employees could still see it, for eight additional days. Compl. ¶ 26; Def.'s Mot. to Dismiss at Ex. A-8 (EEOC Report of Counseling by R. Burkes).

B. EEOC Complaint Process

Plaintiff made initial contact with the agency's Equal Employment Opportunity office (" EEOC" ) on April 6, 2010. Compl. ¶ 27, Def.'s Mot. to Dismiss at Ex. A-8. He alleged that " on 2/17/10, [he] believed he was discriminated against based on his race (Black) and age (40) when he saw a toy monkey hanging by a noose on a bulletin board located in the management seating area of the Document Conversion Laboratory." Id. Plaintiff submitted an official Complaint to the EEOC on April 21, 2010, alleging race discrimination and age discrimination.[2] Compl. ¶ 28, Def.'s Mot. to Dismiss Ex. A-2.

On May 21, 2010, plaintiff requested that his EEO Complaint be amended to include

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reprisal. Compl. ¶ 28. Plaintiff asserted that in late 2009 and early 2010, he complained to his supervisors and to the Office of Inspector General about the " discriminatory and retaliatory treatment and hostile work environment he was experiencing." Id. ¶ ¶ 60, 62. Specifically, plaintiff alleged that " [o]n September 7, 2009, [he] complained about race discrimination in the workplace and other wrongs witnessed," and on February 3, 2010, he notified managers that " contractors may be working with expired clearances." Def.'s Mot. to Dismiss, Ex. E, (Letter from EEOC to D. Rucker, July 13, 2010). He stated that shortly after these incidents management was watching and documenting his every move. Id. On July 13, 2010, the EEO sent a letter informing plaintiff, through counsel, that his request to amend the Complaint was denied. Id. The letter states, in relevant part, " [Mr. Burkes] has failed to state a claim of reprisal as a protected basis, since he did not indicate that the alleged retaliatory acts were connected to prior participation in EEO activity or any prior opposition to unlawful discrimination. Therefore, reprisal will not be accepted as a basis in this complaint." Id.

On October 5, 2010, the Agency notified plaintiff of the result of the EEO investigation, and advised that he had thirty days to appeal. He did so on October 13, 2010. Compl. ¶ ¶ 29-30; Def.'s Mot. to Dismiss Ex. F, G. The Department of Justice issued a Final Agency Decision on November 28, 2011. Def.'s Mot. to Dismiss Ex. H. The agency found Mr. Burkes' claim was untimely because he did not make initial contact with the EEOC within 45 days of the February 17, 2010 incident, as required by 29 C.F.R. § 1614.105(a). Id. The EEOC further determined that even if the claim was timely, the record did not support a claim of a hostile work environment on the merits. Id.

C. Events Occurring After EEOC Charge Was Filed

Plaintiff alleged that he was subjected to a number of discriminatory and retaliatory acts after he filed his EEOC Complaint: (1) in mid to late 2010 he was temporarily assigned to FBI headquarters; (2) in November 2010 he received an undeserved low performance appraisal; (3) in December 2010, he was transferred back to Winchester, Virginia; (4) in late 2010, he was falsely accused of sleeping on duty; (5) at an unspecified time in 2010, he was denied the opportunity to attend a training, while two white employees were permitted to attend; (6) in early 2011, his supervisor threatened to place him on a performance improvement plan; (7) in early 2011, his supervisor stated plaintiff " needed to man up and apologize" for making complaints and " embarrassing DocLab; " and (8) plaintiff's supervisor has been targeting and scrutinizing plaintiff's work " in a manner not experienced by plaintiff prior to complaining." Compl. ¶ ¶ 31-40.

Plaintiff did not file an EEOC Complaint regarding any of these allegations. He also did not seek to amend his administrative complaint to add any of these allegations except the last one: management was retaliating against him by watching him and documenting his every move. See Section I.B, supra.

Plaintiff filed this action on February 28, 2012. Defendants subsequently moved to dismiss. The motion is ...

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