United States District Court, District of Columbia
ANDREW P. MOORE, Plaintiff,
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, et al. Defendants.
D. BATES, United States District Judge
Moore, an African-American man over 62 years old, alleges
that his former employer, U.S. Department of Housing and
Urban Development (“HUD”), took dozens of adverse
actions against him because of his race, gender, and age, as
well as in retaliation for filing a complaint with the Equal
Employment Opportunity Commission (“EEOC”). The
alleged discrimination and retaliation occurred in 2014
during Moore’s brief employment and culminated in
Moore’s termination. HUD responds that none of
Moore’s nine causes of action (which include claims
against HUD employees in their individual capacities) state a
claim upon which relief can be granted. And even if they do,
HUD moves for summary judgment in the alternative. The Court
will grant defendants’ motion to dismiss all of
Moore’s claims against the individual defendants and
grant in part the motion to dismiss Moore’s claims
against HUD. Moore has stated a claim based on certain
discrete acts-including his termination-for discrimination
and retaliation in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et
seq. He has also sufficiently alleged a claim for
hostile work environment. However, only his hostile work
environment claim under the ADEA survives HUD’s
alternative motion for summary judgment.
narrative begins with his selection as a Presidential
Management Fellowship (PMF) Finalist by the Office of
Personnel Management. Am. Compl. [ECF No. 12] ¶ 27. The PMF
program is an entryway into federal government employment for
individuals who have recently received advanced degrees.
See 5 C.F.R. § 362.403(b). Agencies may
consider finalists for appointment to two-year positions.
See id. §§ 362.403(f), 362.404(a).
March 10, 2014, believing that, as a PMF finalist, he had
been offered a management position commensurate with his
business education background, Moore attended a job fair in
Washington, D.C., where federal agencies conducted interviews
to recruit and hire PMF finalists for two-year positions.
See Am. Compl. ¶ 28. Moore was interviewed by a
recruiter from HUD for a “management position” at
the agency’s regional office in Fort Worth, Texas.
Id. According to Moore, the responsibilities of the
position included the management of HUD housing grants and
vouchers. Id. He “was extremely happy and
elated for this wonderful opportunity to train [and] work in
management and had great expectations of continued employment
with the Federal Government.” Id. ¶ 29.
But those great expectations were soon dashed.
March 19, 2014, Moore received a “tentative job
offer” from HUD for the position of “Presidential
Management Fellow (PMF).” Id. ¶ 30. He
was then presented with a “firm job offer” as a
construction specialist compensated at GS 11, which he
accepted, believing it to be his “targeted
position.” Id. ¶¶ 33, 35. He began
work at HUD on April 21, 2014. Id. ¶ 36. But
instead of a management position, Moore was assigned to work
as a building inspector-a job for which he had no background
or qualifications. See id. ¶¶ 46-47. And
while Moore, who has an extensive background in business
administration, was pressed into service as a building
inspector, other PMF employees, with less management
experience, were assigned a higher pay grade. Id.
now contends that HUD singled him out and intentionally
discriminated against him by “deceiv[ing] him into
believing that he would be offered a legitimate Presidential
Management Fellow position.” Id. ¶
126(a). Instead, he asserts, the government extended to him a
fraudulent job offer for a position that did not exist.
Id. ¶ 34. Then, once Moore had accepted the
offer, the government pushed him into a “construction
analyst” position, id. ¶ 36, where it
continued its discriminatory campaign. Id.
¶¶ 60, 65. Having deceived Moore into accepting a
position for which he was unqualified, HUD “used its
UPCS [Uniform Physical Condition Standard] Inspection
Certification Training Program as a tool to discriminate
against Moore.” Id. ¶ 47.
also allegedly isolated Moore from other PMF employees in
myriad ways. For example, HUD refused to issue Moore an
“official acceptance letter, ” prevented him from
attending scheduled PMF events and activities, and forced him
to travel and work “out in the field.”
Id. ¶ 60. In the meantime, HUD treated PMF
employees who were female, not African American, and younger
than Moore more favorably-by not taking these same actions
against them. Id. ¶¶ 61, 66. Moore also
suffered at the hands of his supervisors. Defendant Brian
Ruth, Moore’s second line supervisor,
“shouted” at him on his first day at work.
Id. ¶¶ 72, 84. Defendant Dilip Patel,
Moore’s first line supervisor, “verbally
reprimanded, humiliated, degraded and embarrassed Moore in
front of a building inspector and others.” Id.
¶¶ 72, 86. And defendant Jose Bosque-Perez
“escalated the situation to the point where Moore began
crying.” Id. ¶ 92.
10, 2014, Moore complained that other PMF employees were
receiving better treatment than he was and that he was being
subjected to a hostile work environment. Id. ¶
70. But things did not improve; they got worse. Moore’s
first and second line supervisors and the HUD PMF coordinator
“refus[ed] to assist him to complete an IDP [individual
development plan]” such that Moore was forced to
complete his IDP alone. Id. ¶¶ 72-73. It
was subsequently rejected. Id. ¶ 73. And rather
than execute a written PMF Participant Agreement for Moore,
his supervisors provided him with a “virtually blank
Participant Agreement form that contained no input”
from his supervisors or human resources. Id. In
addition, in July 2014, rather than transfer Moore from what
he complained was a hostile work environment, HUD forced him
to work from home. Id. ¶ 76. Moreover, from
June through September, Patel, Ruth, and defendant Delton
Nichols “made offensive and insulting remarks or
comments suggesting that Moore worked too slow, suffered from
memory loss, had a learning inability, and could not
sufficiently comprehend the exercises in the UPCS Inspection
Certification Training because of his age.”
Id. ¶ 88.
situation finally culminated in Moore’s discharge from
employment on September 24, 2014. Id. ¶ 107.
Moore alleges that his Notice of Termination “is
inundated with false trumped-up charges, ” including
that Moore engaged in misconduct, failed to read his emails
and weekly assignments, was observed sleeping on duty, failed
to follow instructions, did not contact his supervisors for
assistance, and did not display a positive attitude.
Id. ¶ 113. According to Moore, HUD retained
other PMF employees who were female, younger, and not African
American. Id. ¶ 108.
October 29, 2014, and November 12, 2014, Moore filed two
formal Equal Employment Opportunity (EEO) complaints charging
HUD with race and sex discrimination, retaliation, hostile
work environment, and discriminatory and retaliatory
discharge. Id. ¶ 19. He raised his age
discrimination claim with the EEOC on October 16, 2014, when
he filed a notice of intent to sue. Id. ¶ 17.
Believing his administrative remedies to be exhausted, Moore
now brings this federal lawsuit. His amended complaint
alleges nine causes of action. The first five allege that HUD
Secretary Julian Castro (hereinafter, HUD) discriminated
against Moore based on his age, gender, and race, and
retaliated against him in violation of the ADEA and Title
VII. Specifically, Counts I and II allege a list of
twenty-four discriminatory actions taken against Moore. Count
III asserts retaliation based on many of the same discrete
incidents. Count IV asserts a discriminatory and retaliatory
hostile work environment. And Count V claims that
Moore’s termination was also discriminatory and
other causes of action allege that nine individual
defendants: conspired to obstruct justice in violation of 42
U.S.C. § 1985(2) (Count VI); conspired to deprive Moore
of his rights and privileges in violation of 42 U.S.C. §
1985(3) (Count VI); and engaged in a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(c) (Count
VIII). Moore also brings suit against four of these
individuals for “negligence to prevent
conspiracy” in violation of 42 U.S.C. § 1986
August 11, 2015, the defendants filed the motion to dismiss
or, in the alternative, for summary judgment that is now
before the Court. They sought to dismiss all nine counts of
the complaint either under Rule 12(b)(6) for failure to state
a claim or under Rule 56 on summary judgment. Plaintiff has
opposed the motion, and has complained generally that he has
not yet had the opportunity to undertake discovery. He also
has filed a motion to disqualify the presiding judge.
Court must begin by resolving Moore’s motion for
disqualification. Concluding that recusal is not warranted,
the Court will go on to assess whether Moore’s
complaint states a claim that survives HUD’s 12(b)(6)
motion to dismiss. Upon identifying those claims that survive
12(b)(6) dismissal, the Court will proceed to determine
whether summary judgment is proper.
Motion to Disqualify
filed a motion to disqualify the undersigned judge from
further involvement in this matter. That motion, opposed by
defendants, focuses on three incidents: (1) the Court’s
“scathing admonition” of Moore at a status
conference; (2) the Court’s denial of Moore’s
motion for a discovery conference while a dispositive motion
was pending; and (3) the Court’s striking of his
surreply. Pl.’s Mot. to Disqualify [ECF No. 53] at 1-2.
28 U.S.C. § 455(a), a judge “shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” No “reasonable and
informed observer” would question this Court’s
impartiality based on the Court’s statements in open
court at the June 10, 2015, status conference. See United
States v. Cordova, 806 F.3d 1085, 1092 (D.C. Cir. 2015)
(internal quotation marks omitted). In advance of that status
conference, Moore submitted emails sent between opposing
counsel and himself. Pl.’s Notice of Filing Docs. [ECF
No. 14] at 1-2; see Ex. E to Pl.’s Notice of
Filing Docs. [ECF No. 14-5] (accusing government counsel of
harassment, intimidation, and an attempt to corrupt the
court). Having viewed the content of those exhibits, the
Court expressed concern about their tone. See Tr.
[ECF No. 56] at 4:22-5:18. The Court encouraged Moore
“to be civil, ” show “respect and courtesy,
” avoid “accusations and other hyperbole, ”
and “be mindful of what the other side is charged with
doing.” Id. This exchange does not suggest
that the Court’s impartiality might reasonably be
questioned. See Liteky v. United States, 510 U.S.
540, 555 (1994) (“[J]udicial remarks . . . that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge.”); accord Czekalski v.
LaHood, 589 F.3d 449, 457 (D.C. Cir. 2009). Nor can the
judicial rulings in this case form the basis for a recusal
motion. See Liteky, 510 U.S. at 555
(“[J]udicial rulings alone . . . can only in the rarest
circumstances evidence the degree of favoritism or antagonism
required” for recusal.); accord United States v.
Hite, 769 F.3d 1154, 1172 (D.C. Cir. 2014). The Court
will therefore deny Moore’s motion for
Motion to Dismiss
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails “to state a claim
upon which relief can be granted.” “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)). At this stage, the Court must assume the truth of
all well-pleaded factual allegations and construe reasonable
inferences from those allegations in plaintiff’s favor.
Sissel v. U.S. Dep’t of Health & Human
Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). But the Court
need not accept as true “a legal conclusion couched as
a factual allegation, ” nor an inference unsupported by
the facts set forth in the complaint. Trudeau v.
FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)
(internal quotation marks omitted)). Although a plaintiff may
survive a 12(b)(6) motion even if “recovery is very
remote and unlikely, ” the facts alleged in the
complaint “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555-56 (internal quotation marks omitted).
assessing Moore’s complaint, it is important to note
that pro se parties generally deserve leeway in
their pleadings. See, e.g., Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999)
(“Courts must construe pro se filings
liberally.”); Voinche v. FBI, 412 F.Supp.2d
60, 70 (D.D.C. 2006) (“This Court gives pro se
parties the benefit of the doubt and may ignore some
technical shortcomings of their filings.”). HUD argues
that Moore is not entitled to this benefit of the doubt given
his extensive litigation experience. Defs.’ Mem. in Supp.
of Mot. to Dismiss [ECF No. 24-2] at 8-9. HUD, however, cites
no authority for the proposition that a litigious pro
se litigant should be treated differently from other
pro se parties. The Court therefore will construe
Moore’s complaint under the liberal standard that
governs pro se complaints. See Sparrow v.
Reynolds, 646 F.Supp. 834, 836-37 (D.D.C. 1986)
(“A pro se litigant, even one as experienced
as plaintiff, is entitled to have his complaint construed
most liberally.”). Of course, a pro se
complaint must still “present a claim on which the
court can grant relief.” Chandler v. Roche,
215 F.Supp.2d 166, 168 (D.D.C. 2002). Here, the Court
“is limited to considering facts alleged in the
complaint, any documents attached to or incorporated in the
complaint, matters of which the court may take judicial
notice, and matters of public record.” Felder v.
Johanns, 595 F.Supp.2d 46, 58 (D.D.C. 2009) (citing
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997)).
Moore’s Claims Against Individual Defendants
Court will begin with the easier task of addressing
Moore’s claims against individual defendants. These
claims are meritless auxiliary attempts to pursue what is
really an employment discrimination lawsuit. Title VII is the
“exclusive, pre-emptive administrative and judicial
scheme for the redress of federal employment
discrimination.” Brown v. Gen. Servs. Admin.,
425 U.S. 820, 829 (1976); see Rogler v. Biglow, 610
F.Supp.2d 103, 105 (D.D.C. 2009) (holding Title VII is the
exclusive “remedy for federal employees who are
retaliated against for participating in EEOC
proceedings”). Because Title VII is the exclusive
remedy for federal employment discrimination or retaliation,
it is clearly established that aggrieved individuals cannot
pursue redress for these harms under 42 U.S.C. §
1985(3), which provides a civil cause of action against
persons who conspire to deprive “any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws.” Great
Am. Fed. Savs. & Loan Ass’n v. Novotny, 442
U.S. 366, 378 (1979). Moore’s § 1985(3) claim
therefore cannot proceed as a matter of law.
Court sees no reason why the same logic should not bar
Moore’s other claims against the individual defendants.
See Ethnic Emps. of the Library of Congress v.
Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985)
(“[F]ederal employees may not bring suit under the
Constitution for employment discrimination that is actionable
under Title VII.”); Brug v. Nat’l Coal. for
the Homeless, 45 F.Supp.2d 33, 42 (D.D.C. 1999) (holding
that federal employee was precluded from bringing claims of
constitutional violations under § 1983); see also
Brown v. Potter, No. 4:05-CV-584 (CEJ), 2006 WL 416066,
at *2 (E.D. Mo. Feb. 21, 2006) (dismissing all claims,
including RICO claims, brought by plaintiff under any statute
or law other than Title VII). But even if this doctrine did
not extend to Moore’s claims under 42 U.S.C.
§§ 1985(2) and 1986, and 18 U.S.C. § 1962(c),
those claims must still be dismissed on alternate
Claim under § 1985(2)
first clause of § 1985(2) “prohibits conspiracies
to interfere with the integrity of the federal judicial
system.” McCord v. Bailey, 636 F.2d 606, 614
(D.C. Cir. 1980). To state a claim under this provision of
§ 1985(2), “a plaintiff must allege (1) a
conspiracy between two or more persons, (2) to deter a party,
witness or juror from attending or testifying in any matter
pending in any court of the United States, which (3) results
in injury to the plaintiff.” Graves v. United
States, 961 F.Supp. 314, 319 (D.D.C. 1997).
alleges broadly that defendants conspired to “deter him
by intimidation and retaliation from attending this court and
testifying to the matters of this case freely, fully, and
truthfully, injure in his person or property for having
attended these court proceedings, and to obstruct, impede or
hinder the due course of justice.” Am. Compl. ¶
123. Few factual specifics are offered. These conclusory
allegations are insufficient to state a claim. See
Iqbal, 556 U.S. at 678 (“A pleading that offers
‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not
do.’” (quoting Twombly, 550 U.S. at
555)). The only specific allegations that vaguely relate to
any obstruction of justice arise in the context of
Moore’s EEO administrative proceeding. Am. Comp. ¶
126(k). But “administrative proceedings under Title VII
do not constitute a court proceeding for the purposes of
§ 1985(2).” Graves, 961 F.Supp. at
319-20. The Court will therefore dismiss this claim.
Claim under § 1986
1986 imposes civil liability on anyone who knowingly fails to
prevent the commission of a conspiracy prohibited by §
1985. 42 U.S.C. § 1986. Thus, a § 1986 claim is
derivative of a § 1985 claim. A plaintiff who has not
stated a claim under § 1985 has no basis for relief
under § 1986. Wilson v. U.S. Dep’t of
Transp., 759 F.Supp.2d 55, 62-63 (D.D.C. 2011); see
Herbin v. Hoeffel, No. 99-7244, 2000 WL 621304, at *1
(D.C. Cir. Apr. 6, 2000) (per curiam). Having dismissed
Moore’s § 1985 claim, the Court must also dismiss
his § 1986 claim.
survive a Rule 12(b)(6) motion to dismiss, plaintiffs
bringing a § 1962(c) claim must allege “(1)
conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.” W. Assocs. Ltd.
P’ship v. Mkt. Square Assocs., 235 F.3d 629, 633
(D.C. Cir. 2001) (internal quotation marks omitted). Among
the predicate acts constituting “racketeering
activity” under § 1962(c) are mail fraud and wire
fraud. See 18 U.S.C. § 1961(1). Moore claims
that a group of HUD employees constituted an enterprise that
operated with the purpose to defraud Moore, committing
“at least seven predicate acts”: mail fraud, wire
fraud, honest services fraud, involuntary servitude,
tampering with a party, obstruction of federal court
proceedings, and use of the mails to carry out unlawful
activity. Am. Compl. ¶¶ 136-144. Specifically, he
alleges, defendants “devised multiple schemes . . . to
defraud Moore” by, among other things, presenting him
with a fraudulent firm job offer, placing him in a
non-management position, preventing him from working at his
duty station, and forcing him into involuntary servitude.
Id. ¶ 146.
responds that Moore’s “attempt to fit the
everyday tribulations of employment . . . into the rubric of
a RICO claim is ridiculous” and concludes that the
“cause of action is frivolous.” Defs.’
Reply [ECF No. 40] at 28-29. The Court agrees that
Moore’s RICO claim cannot survive. “Congress
enacted § 1962(c), and RICO generally, ‘to target
. . . the exploitation and appropriation of legitimate
business by corrupt individuals.’” Bates v.
Nw. Human Servs., 466 F.Supp.2d 69, 78 (D.D.C. 2006)
(quoting Yellow Bus Lines, Inc. v. Drivers, Chauffeurs
& Helpers Local Union 639, 883 F.2d 132, 139 (D.C.
Cir. 1989)). Moore’s lawsuit has nothing to do with an
injury to his commercial business. It has everything to do
with an employment-related injury. The remedy for
Moore’s complaints is Title VII, and his attempt to
shoehorn his discrimination and retaliation claims into a
RICO claim is unavailing. Hence, his RICO claim will be
the RICO claim fails because Moore has not sufficiently pled
a pattern of racketeering activity. Among the factors courts
consider when evaluating whether the plaintiff has
established such a pattern are “the number of unlawful
acts, the length of time over which the acts were committed,
the similarity of the acts, the number of victims, the number
of perpetrators, and the character of the unlawful
activity.” Edmondson & Gallagher v. Alban
Towers Tenants Ass’n, 48 F.3d 1260, 1265 (D.C.
Cir. 1995) (internal quotation marks omitted). When
defendants are accused of engaging in “a single
scheme” with a “single injury and few
victims” it is “virtually impossible for
plaintiffs to state a RICO claim.” Id. Moore
has pleaded a “pattern” consisting of a single
alleged scheme (to prevent Moore from participating in and
completing the PMF program); a single injury (Moore’s
loss of his PMF position and related benefits); and a single
victim (Moore). Even taking all of plaintiff’s
assertions as true, and assuming that he adequately pleaded
the required predicate acts, he still has failed to plead a
pattern of racketeering activity. See E. Sav. Bank, FSB
v. Papageorge, 629 F. App’x 1, 2 (D.C. Cir. 2015).
Moore’s Claims Against HUD
Court is thus left with the core of Moore’s lawsuit-his
claims that HUD took retaliatory and discriminatory action
against him in violation of Title VII and the ADEA. Recall
that Moore alleges disparate treatment because of age in
violation of the ADEA (Count I); disparate treatment because
of race and sex in violation of Title VII (Count II);
retaliation in violation of Title VII and the ADEA (Count
III); discriminatory and retaliatory hostile work environment
in violation of Title VII and the ADEA (Count IV); and
discriminatory and retaliatory discharge in violation of
Title VII and the ADEA (Count V).
suing under either Title VII or the ADEA, an aggrieved party
must exhaust his administrative remedies. Washington v.
Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.
Cir. 1998). HUD argues that several of Moore’s claims
have not been properly exhausted. Defs.’ Mem. at 17-18.
Some, HUD argues, were presented to the EEOC, but not in
compliance with the statutory deadlines. Others, HUD asserts,
were not presented to the EEOC at all.
Title VII, a federal employee has 45 days from the date of
the matter alleged to be discriminatory or retaliatory to
make contact with an EEOC counselor and 180 days from the
filing of the initial charge to file an official charge.
See 42 U.S.C. § 2000e-16(c); 29 C.F.R. §
1614.105(a)(1). Under the ADEA, a federal employee may bring
the claim directly to federal court if he gives at least 30
days’ notice to the EEOC of his intent to sue and files
that notice within 180 days after the alleged discriminatory
conduct. 29 U.S.C. § 633a(d); Proud v. United
States, 872 F.2d 1066, 1067 (D.C. Cir. 1989).
an employee must exhaust the administrative process for each
discrete act for which he seeks to bring a claim. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113- 15 (2002); see also Colton v. Clinton,
Civ. No. 09-1772, 2010 WL 3940994, at *3 (D.D.C. Sept. 27,
2010) (notice of intent to sue must include allegation of
“discrete act” at issue). In Morgan, the
Supreme Court held that discrete discriminatory acts
“are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Each
discrete discriminatory act starts a new clock for filing
charges alleging that act.” 536 U.S. at 113. Excluding
his termination, Moore has listed twenty-four separate acts
that he alleges constituted unlawful discrimination on the