United States District Court, District of Columbia
ANDREW P. MOORE, Plaintiff,
BENJAMIN S. CARSON, Secretary, U.S. Department of Housing and Urban Development, Defendant.
D. BATES, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
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.
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).
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.
Moore's Threshold Arguments
HUD Did Not Constructively Admit the Allegations in
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
HUD Properly Relied on Moore's Deposition
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.
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.
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 ...