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Moore v. Carson

United States District Court, District of Columbia

August 24, 2018

ANDREW P. MOORE, Plaintiff,
BENJAMIN S. CARSON, Secretary, U.S. Department of Housing and Urban Development, Defendant.



         Andrew Moore, a former employee of the U.S. Department of Housing and Urban Development (“HUD”), is an African-American man over sixty-seven years old. He alleges that while he was employed at HUD, the agency took adverse employment actions against him because of his race, sex, and age and in retaliation for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). The Court previously entered summary judgment in HUD's favor on all of Moore's claims but one: his claim that HUD subjected him to a hostile work environment because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The parties have now filed cross-motions for summary judgment on that claim and, for the reasons that follow, Moore's summary judgment motion will be denied, and HUD's will be granted.


         I. Factual Background

         The facts of this case are explained more fully in the Court's prior decisions. See Moore v. Castro (“Moore I”), 192 F.Supp.3d 18, 31-32 (D.D.C. 2016); Moore v. Carson (“Moore II”), Civil Action No. 14-2109 (JDB), 2017 WL 1750248, at *1 (D.D.C. May 3, 2017). Thus, the facts are summarized here only briefly.

         In 2014, Moore was selected as a finalist for the Presidential Management Fellowship (“PMF”) by the Office of Personnel Management. Moore I, 192 F.Supp.3d at 31. Moore then interviewed with HUD and was hired for what he believed to be a “management position.” Id. However, when Moore began the job in April 2014, he was disappointed to discover that he had been hired as a building inspector rather than a manager. Id. He was also disappointed that other PMF employees with less education and management experience had been assigned to higher pay grades. Id. at 31-32.

         According to Moore, HUD hired him as a PMF and then pushed him into a lower-paying job for which he was less qualified because of his race, gender, and age. See Am. Compl. [ECF No. 12] ¶¶ 61, 66, 126(a). Moore claims that this discrimination continued throughout his employment and culminated later in 2014, when three of his supervisors “made offensive and insulting remarks or comments suggesting that Moore worked too slow, suffered from a memory loss, had a learning inability, and could not sufficiently comprehend . . . because of his age.” Id. ¶ 88. Moore was fired from HUD on September 24, 2014 on what he alleges were “false trumped-up charges.” Id. ¶¶ 107-08.

         II. Procedural Background

         After filing two Equal Employment Opportunity (“EEO”) complaints and an EEOC age discrimination claim, Moore brought suit in this court on December 11, 2014. See id. ¶¶ 17, 19. The defendants (who originally included nine individual HUD employees, as well as then-Secretary of HUD Julian Castro) moved to dismiss or, in the alternative, for summary judgment. See Defs.' Mot. to Dismiss & Mot. for Summ. J. [ECF No. 20]. Moore opposed the motion, arguing that he had not yet been able to engage in discovery, and moved to disqualify the undersigned judge. See Pl.'s Resp. to Defs.' Mot. to Dismiss & Mot. for Summ. J. [ECF No. 29] at 18-19; Pl.'s Mot. to Disqualify [ECF No. 53]. The Court granted in part and denied in part defendants' motion and denied Moore's disqualification motion. See Moore I, 192 F.Supp.3d at 34, 54. Following the Court's partial grant of summary judgment for defendants, Moore's only surviving claim was one alleging a hostile work environment in violation of the ADEA. See id. at 54.

         Moore then moved to vacate the Court's June 17, 2016 Order. See Pl.'s Mot. to Vacate [ECF No. 63]. The Court held Moore's motion in abeyance pending his simultaneous appeal of that Order, which the D.C. Circuit ultimately dismissed for lack of jurisdiction. See Moore v. Castro, No. 16-5361, Order (D.C. Cir. Feb. 6, 2017) (per curiam) (unpublished). Following that appeal, this Court denied Moore's motion to vacate. Moore II, 2017 WL 1750248, at *7.

         The remaining ADEA claim proceeded to discovery, and Moore later moved for summary judgment. See Pl.'s Mot. for Summ. J. [ECF No. 92]. HUD filed a consolidated opposition and cross-motion for summary judgment, which Moore now opposes. See Mem. of Law in Supp. of Def.'s Cross-Mot. for Summ. J. & Resp. to Pl.'s Mot. for Summ. J. (“Def.'s Opp'n”) [ECF No. 107]; Pl.'s Opp'n to Def.'s Cross-Mot. for Summ. J. (“Pl.'s Opp'n”) [ECF No. 108]; Pl.'s Reply Mem. in Supp. of Mot for Summ. J. (“Pl.'s Reply”) [ECF No. 110]. The parties' motions are now fully briefed and ripe for decision.[1]


         A party is entitled to summary judgment where the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56). On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). To survive a motion for summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. Rather, that party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. (citation omitted).


         Moore's summary judgment briefing raises several threshold issues, some of which the Court has already resolved in its prior decisions. The Court will address these threshold arguments first, before turning to the merits of the parties' competing summary judgment motions on Moore's hostile work environment claim under the ADEA.

         I. Moore's Threshold Arguments

         A. HUD Did Not Constructively Admit the Allegations in Moore's Complaint

         First, Moore claims that he is entitled to summary judgment against some or all of the defendants because, for various reasons, the defendants constructively admitted the allegations in the complaint. For example, Moore claims that HUD has admitted all of the allegations in his complaint because it failed to file a proper responsive pleading. Pl.'s Mot. for Summ. J. at 4. He claims that the answer filed by Assistant U.S. Attorney Scott Sroka on behalf of HUD is “legally unauthorized” because Sroka is not a member of the Bar of this Court. Id. at 4-5 (citing Local Civ. R. 83.2(c)-(e)). However, Local Civil Rule 83.2(e) permits an attorney “who is employed or retained by the United States” to “practice in this Court on behalf of the United States . . . irrespective of” limitations based on local Bar admission, so this claim is without merit. Moore also asserts that the nine individual defendants named in his Amended Complaint failed to respond. Id. at 4. But this Court has already dismissed all claims against them, eliminating the need for a further response. See Moore I, 192 F.Supp.3d at 35. Finally, Moore contends that HUD conceded the allegations in his motion for summary judgment by failing to file an opposition and “[i]nstead fil[ing] [a] cross-motion for summary judgment twice . . . to substitute it as an Opposition.” Pl.'s Reply at 2; see also Pl.'s Opp'n at 11-12. But HUD filed a consolidated opposition and motion for summary judgment, as the Court directed in its October 30, 2017 Scheduling Order. See Oct. 30, 2017 Scheduling Order [ECF No. 101]. In sum, because no defendant has conceded Moore's allegations, he is not entitled to summary judgment on this ground.

         B. HUD Properly Relied on Moore's Deposition Transcript

         Moore also contends that the government cannot rely on his deposition because he was “never notified by the court reporter that the deposition transcript was available to review” and because the “first and only time [he] had an opportunity to review it” was after HUD filed its cross-motion. Pl.'s Opp'n at 9. Thus, he asks the Court to strike the deposition. See id.

         Federal Rule of Civil Procedure 30(e) provides that, “[o]n request by the deponent or a party before [a] deposition is completed, the deponent must be allowed 30 days after being notified . . . that [a] transcript . . . is available in which . . . to review the transcript.” Fed.R.Civ.P. 30(e)(1)(A). Then, if the deponent wishes to make “changes in form or substance, ” he or she must be allowed “to sign a statement listing the changes and the reasons for making them.” Fed.R.Civ.P. 30(e)(1)(B); see EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 266 (3d Cir. 2010) (“If the party or deponent proffering changes in the form or substance of a deposition transcript fails to state the reasons for the changes, the reviewing court may appropriately strike the errata sheet.”). Rule 30(e) also requires the officer conducting the deposition to “note in the certificate” of the deposition's accuracy “whether a review was requested.” Fed.R.Civ.P. 30(e)(2).

         Here, the court reporter's certificate does reflect that “a review of the transcript was requested.” See Dep. of Andrew Moore (“Moore Dep.”) [ECF No. 106-2] at 95:8. However, even assuming that the court reporter improperly failed to notify Moore that the transcript was available for review, Moore has not shown that the deposition should be stricken. Contrary to Rule 30(e)'s instructions, Moore has neither “list[ed] the changes” he would make to the transcript nor stated “the reasons for making them”; rather, he simply states that he “does not agree with every transcription in the deposition.” Pl.'s Opp'n at 9; see Jackson v. Local Teamsters Union 922, 310 F.R.D. 179, 183, 185 (D.D.C. 2015) (concluding that substantive changes to a deposition transcript require “convincing, ” as opposed to merely “conclusory, ” explanations). Because Moore has failed to identify the specific changes he would make to his testimony-let alone the reasons supporting those changes-his request to strike the deposition transcript will be denied. See Hollis v. Sloan, No. 2:08-cv-2674, 2012 WL 5304756, at *3 (E.D. Cal. Oct. 25, 2012) (denying a plaintiff's motion to strike his deposition even ...

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