United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE
the Court is the Motion for Partial Dismissal of the
plaintiffs Second Amended Complaint [ECF No. 24] by the
defendant Michael Pompeo,  Secretary of the U.S. Department of
State, and all responses and replies thereto. For the reasons
stated below, the Court GRANTS IN PART and
DENIES IN PART the defendant's partial
motion to dismiss.
case involves allegations of (1) race discrimination and (2)
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000(e) et seq. ECF No.
20-3 at 16-18, ¶¶8O-93. While the original
complaint contained additional claims of hostile work
environment, harassment, and discrimination on account of the
plaintiffs sex and age, each of these claims has since been
withdrawn by the plaintiff, leaving only two claims under
Title VII remaining. See ECF Nos. 1, 11, 20-3.
Pratt is a 60-year-old, African-American male who has worked
for the U.S. Department of State (hereafter the
"Department") since 1986. ECF No. 20-3 at 3,
¶9. His two claims under Title VII arose during his
tenure as a management officer working at the U.S. Embassy in
Eritrea (hereafter the "Embassy"). Pratt alleges
several disputes with his supervisors while he worked at the
Embassy, during which he attempted to call attention to
activities conducted by Embassy personnel that he viewed as
wasteful and in some instances contrary to U.S. State
Department rules and regulations. Id. at 5-6,
¶¶l7-23. These observations and objections, he
alleges, were met with disdain by his supervisors, who
declined to heed his concerns. Id.
these alleged confrontations, Pratt claims he engaged in
protected activity when he stated during a meeting with his
supervisors on October 30, 2015, that he was no longer being
informed of tasks and events at the embassy, which he
believed significantly hindered his ability to do his job
effectively. Id. at 6-8, ¶¶24-33. He
alleged that the decisions to cut him out of the
decision-making and management processes were retaliatory
measures in response to his prior "whistleblowing
activities" of calling attention to the various
instances of wrongful behavior he allegedly witnessed at the
Embassy. Id. at 8, ¶32. He also stated that his
supervisors both had "a closer relationship with the
white staff, who were also being treated better at the
workplace." Id. at8, ¶33.
February 16, 2016, after two more alleged instances of
careless and unlawful behavior by State Department personnel,
Pratt filed an Equal Employment Opportunity (EEO) claim of
discrimination and retaliation with the State Department.
Id. at 8-9, ¶¶34-36; ECF No. 10-3 at 6. In
retaliation for this claim and his prior protected activity,
the plaintiff contends, he was (1) sent a letter of
admonishment, (2) given an allegedly negative employee
evaluation report (EER), (3) denied the position of Acting
Deputy Chief of Mission (DCM), (4) involuntarily removed from
the Eritrea office, and (5) subsequently given a lower
ranking position at the U.S. Embassy in Mauritania.
Id. at 9-16, ¶¶4O-79. This sequence of
events forms the foundation of the plaintiffs Title VII
allegations of race discrimination and retaliation against
the State Department.
State Department issued its Final Agency Decision on October
11, 2016, which determined that Pratt "provided
insufficient evidence to show the [Department's] reasons
for its actions were pretextual" and "has not
established his claims of discrimination." ECF No. 10-3
at 22. Pratt now sues after exhausting all administrative
has amended his complaint twice. See ECF Nos. 1, 11,
20-3. After the State Department filed its first motion to
dismiss [ECF No. 10], Pratt filed his First Amended Complaint
[ECF No. 11], which withdrew his claims of (1) race
discrimination under 42 U.S.C. § 1981, (2) hostile work
environment and harassment under § 1981, (3) retaliation
under § 1981, (4) sex discrimination under Title VII,
and (5) hostile work environment and harassment under Title
VII. See ECF No. 11. The plaintiff subsequently
filed notice with the Court withdrawing his two claims under
the Age Discrimination in Employment Act (ADEA) [ECF No.
12.], leaving only two claims under Title VII left in the
case. The State Department has brought a motion for partial
dismissal of the claims arising out of (1) the Embassy's
refusal to appoint Pratt acting DCM), and (2) the negative
EER issued to Pratt following his alleged whistleblowing
activities. This motion is now ripe for consideration.
Legal Standard-Motion to Dismiss
survive a motion to dismiss under Rule 12(b)(6), the
complaint must "state a claim upon which relief can be
granted." FED. R. Civ. P. 12(b)(6). To carry this
burden, "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)). Facial
plausibility is established "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. While well-pleaded factual
allegations within the complaint must be accepted by the
Court as true, "[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory
statements" are insufficient. Id. A mere
"legal conclusion" need not be accepted as true.
Twombly, 550 U.S. at 555.
Title VII discrimination and retaliation claims must allege
an adverse action to state a claim for relief.
conclusory argument that he need only plead "that he was
being discriminated against and that he wanted to be treated
similarly as the white staff in the Embassy" in order to
be entitled to discovery is incorrect. ECF No. 17 at 5. An
adverse action is an essential element of both discrimination
and retaliation claims under Title VII, and a complaint must
allege that element in order to state a claim upon which
relief may be granted. Winston v. Clough, 712
F.Supp.2d 1, 10 (D.D.C. 2010) (quoting Brady v. Office of
the Sergeant at Arms,520 F.3d 490, 493 (D.C. Cir.
2008)) (listing "an adverse employment action" as
an element a plaintiff must plead in Title VII discrimination
cases); Howard R.L. Cook & Tommy Shaw Found, ex rel.
BlackEmployees of Library of Cong., Inc. v.
Billington,737 F.3d 767, 772 (D.C. Cir. 2013) (holding
that a claim of retaliation under Title VII must state
"that the employee suffered a materially adverse action
by the employee's employer . . ."). An adverse
action is defined as "a significant change in ...