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Moore v. Castro

United States District Court, District of Columbia

June 17, 2016

ANDREW P. MOORE, Plaintiff,
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, et al. Defendants.


          JOHN D. BATES, United States District Judge

         Andrew 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.


         Moore’s narrative begins with his selection as a Presidential Management Fellowship (PMF) Finalist by the Office of Personnel Management.[1] 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).

         On 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.

         On 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. ¶ 43.

         Moore 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.

         HUD 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.

         On June 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.

         The 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.


         On 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 retaliatory.

         His 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 (Count VII).

         On 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.


         The 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.

         I. Motion to Disqualify

         Moore 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.

         Under 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 disqualification.

         II. Motion to Dismiss

         A. Legal Standard

         Federal 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).

         Before 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.[2] 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)).

         B. Moore’s Claims Against Individual Defendants

         The 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.

         The 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 grounds.[3]

         1. Claim under § 1985(2)

         The 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).

         Moore 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.

         2. Claim under § 1986

         Section 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.

         3. RICO claim

         To 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.

         HUD 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 dismissed.

         Moreover, 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).

         C. Moore’s Claims Against HUD

         The 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).

         1. Exhaustion

         Before 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.

         Under 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).

         Importantly, 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 basis ...

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