Moore v. United States Department of State

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE.

         Donald L. Moore brings this Title VII action against his employer, the U.S. Department of State, and Secretary of State Michael Pompeo, ^[1] asserting that they subjected him to a hostile work environment, retaliated against him for protected activity, and discriminated against him on the basis of his race. Before the Court is the defendants' Motion to Dismiss, Dkt. 21. For the reasons that follow, the Court will deny the motion.

         I. BACKGROUND

         Donald Moore, an African American male, has worked for the Department of State since 1992. See Compl. ¶¶ 1, 8, Dkt. 1.^[2] Moore's career at the Department had a promising start. He received several awards for excellence and was promoted into the Senior Foreign Service on his first try. Id. ¶ 8. But his career advancement came to an end in 2010 when Moore became Consul General of the U.S. Consulate in Naples, Italy. Id. ¶ 9. In Naples, Moore clashed with a group of subordinates engaging in workplace misconduct. Id. ¶ 11. He counseled the employees individually, but they rejected his leadership and allegedly “embarked on relentless, racially motivated attacks” against him. Id.

         The employees began their attacks by filing four Equal Employment Opportunity (EEO) complaints and submitting allegations of misconduct to the Office of Inspector General (OIG). Id. ¶ 12. The employees accused Moore of, among other things, consorting with prostitutes in his official residence. Id. ¶ 13. Moore defended himself in the EEO and OIG proceedings and claimed that the employees' allegations were “racially motivated” and designed to cover up their own “poor performance.” Id. ¶ 12.

         Two of the employees-William and Kerry Howard-then shared “salacious rumors” with U.S. Senator Rand Paul, id. ¶ 14, and Congress referred the allegations to the Bureau of Diplomatic Security for investigation, id. ¶ 15. The State Department investigation exonerated Moore, who in turn asked Department leadership for “public support” to clear his name. Id. ¶¶ 15-16.

         The Department refused. Id. ¶ 16. Adding insult to injury, Executive Director of Consular Affairs James Herman stated that the allegations didn't surprise him considering Moore's “corridor reputation.” Id. Herman shared that opinion with several “influential State Department officials” even though he knew that Moore was seeking future assignments and that Moore's reputation would be critical to that process. Id.

         Meanwhile, Kerry Howard took the allegations against Moore to the Italian press. Id. ¶ 17. In Italy, more than 60 articles reported the allegations. Id. In June 2013, the negative publicity spread to the United States, where stories about Moore's purported “trysts” with prostitutes appeared online and in the New York Post. Id. ¶ 17.

         Department officials struggled with how to react to the scandalous media stories. They discussed their options with the Bureau of European and Eurasian Affairs and considered “a comprehensive, official response” that would include reporting the results of the Diplomatic Security investigation. Id. ¶ 18. Two Department offices and three high-ranking officials approved a press statement announcing that Moore had been cleared of all charges, but ultimately the Department decided not to release it. Id. Moore, for his part, could not defend himself publicly because a Department policy prohibited employees from speaking to the press. Id. ¶ 19.

         With the scandalous rumors unaddressed, Moore sought an “onward assignment” within the Department, but “[n]o mission would touch him.” Id. ¶ 21. Ultimately, the Department detailed Moore to a “dead-end position” at a university in Alabama operated by the U.S. Air Force. Id. The university initially objected to the placement. Id. It later accepted Moore but did not let him do “public outreach” or “presentations.” Id.

         In August 2013, before leaving for Alabama, Moore sought a “formal endorsement” from two high-ranking Department officials to “rehabilitate his reputation and career for onward assignments.” Id. ¶ 22. They refused. Id. One of the officials described the Naples controversy as “poisonous;” the other warned Moore “not to procure prostitutes” in Alabama. Id.

         Undeterred, Moore sought support for another position in the Department's Visa office. Id. ¶ 23. He scheduled a meeting with a Department official in August 2013, but the official cancelled without explanation. Id. Later, Moore met with two more officials seeking support for yet another position. Id. They declined, citing concerns about Moore's “‘modeling' and reputation.” Id.

         In October 2013, Herman-the official who previously called Moore's “corridor reputation” into doubt, id. ¶ 16-requested an “assessment” of Moore from Moore's colleagues, id. ¶ 24. The timing of this request was unusual and contrary to Department policy. Id.

         That same month, the Department's Office of Civil Rights dismissed the EEO complaint filed by Kerry Howard-the Naples employee who had shared the prostitution allegations with the Italian press. Id. ¶ 25. A few days after the dismissal, an online article reported that the Department had “Swept Sex Scandals Under the Rug.” Id. ¶ 26.

         In the fall of 2013, Moore realized he was “stymied” by the Department's failure to remedy the negative impact of the Naples allegations on Moore's reputation and advancement. Id. ¶ 27. He filed an EEO complaint alleging unlawful discrimination and was “railroaded” into mediation with the Department. Id. ¶¶ 27, 28. The mediation involved Moore-who was unrepresented by counsel-four “Responding Officials, ” an “HR Representative, ” a “Resolving Official, ” and two “Mediators.” Id. ¶ 28. This “impressive representation” on behalf of the Department was “intimidating” to Moore, but it showed him that “he was being taken seriously.” Id.

         During the mediation, the Department did not disclose that Kerry Howard had received a “right to sue” letter from the Office of Civil Rights and would likely file a lawsuit in federal court. Id. The Department also did not explain that such a lawsuit could lead to further negative publicity for Moore, or that it could provide an opportunity for the Department to publicly defend Moore's reputation through litigation. Id.

         In November 2013, Moore entered a settlement agreement with the Department. Id.; see also Defs.' Mot. to Dismiss Ex. 1, Dkt. 21-3 (copy of agreement).^[3] Moore agreed to “withdraw and quit for all time any and all claims, demands, actions, causes of action, complaints, or suits against the Department, . . . whether or not known[, ] arising, or which might arise, up to and including the date of this Agreement.” Defs.' Mot. to Dismiss Ex. 1, ¶ 1. In exchange, the Department agreed to have certain high-level Department officials meet with Moore to discuss his bids for onward assignments, to extend the deadline for Moore's bids, to extend his “Time in Class” by one year, to consider making proposed changes to Moore's 2012 employee evaluation, to provide a positive recommendation for Moore to use in his bids, to provide Moore with technology to facilitate his remote communication with the Department, and to “issue a memorandum to [Moore] summarizing the results of the Bureau of Diplomatic Security's investigation” of the matters in Naples. Id. ¶ 9.^[4]

         After executing the agreement, the Department chose not to make any changes to Moore's 2012 employee evaluation. Id. ¶ 30. And it gave Moore mixed messages on what he could do with the memorandum summarizing the Diplomatic Security investigation. Id. One office told Moore he could use it however he pleased once it was in his possession; another told him he could release it publicly only if he made clear that its contents reflected Moore's own views and not those of the Department. Id.

         In January 2014, Kerry Howard filed a federal lawsuit that repeated her allegations against Moore. Id. ¶ 32. Two U.S. news articles-one in the New York Post and one in Newsweek-reported on the allegations. Id. ¶ 33. The Department subsequently settled Kerry Howard's lawsuit. Id. ¶ 35. When Moore found out about the settlement, he requested that the Department issue a press release stating that Moore had been cleared of the prostitution allegations. Id. ¶ 36. A member of the Executive Office for the Bureau of European Affairs refused, and when Moore told her that the allegations had been destroying his reputation within the Department for years, she advised him to consult with Human Resources because “there were ‘black people' there.” Id. Later, the same employee made clear to Moore that any press release concerning the allegations would have to include a disclaimer that the release reflected Moore's views and not the Department's. Id. ¶ 37.

         Dissatisfied, Moore spoke with John Robinson, the Director of the Office of Civil Rights and Chief Diversity Officer of the Department. Id. ¶ 38. Moore explained the negative impact of the Department's persistent refusal to clear his name, and he requested Robinson's support for a promotion. Id. Robinson responded by suggesting that Moore consider leaving the Department for the private sector. Id.

         In the fall of 2015, Jeffrey Young-one of the employees who clashed with Moore in Naples-complained to the Office of Inspector General that Moore had perjured himself in Young's EEO proceeding. Id. ¶ 39. Moore responded to the perjury allegation and expressed his view that it was racially motivated. Id.

         Since 2012, Moore has received no promotions or performance-based bonuses. Id. ¶ 43. His advancement has allegedly been “stymied” by the Department's failure to publicly clear him of the prostitution allegations and by the “inherently discriminatory nature of the bidding process” used for advancement within the Department. Id. Because the bidding process relies heavily on reputation, recommendations, and networking, it has been effectively foreclosed to Moore, who must try to explain the Naples rumors without violating the confidentiality of other employees' EEO proceedings and without the benefit of institutional support or a curative press release from the Department. Id. From 2013 to 2016, Moore received none of the assignments for which he bid, in part because of his inability to effectively address the Naples rumors. Id.

         Moore alleges that his own experience reflects an “overarching diversity problem” at the Department. Id. ¶ 46. He provides several statistics suggesting that African Americans are underrepresented within the Department and that they “fare poorly when it comes to promotion to high-level positions.” Id.

         Moore also alleges that the Department treated Caucasian employees embroiled in controversy more favorably than it treated him. Id. ¶¶ 20, 40. Moore provides several examples: In June 2013, Ambassador Howard Gutman, a Caucasian male, was accused of soliciting prostitutes. Id. ¶ 20. Unlike Moore, however, Gutman was given permission to publicly deny the allegations. Id. In 2015, Under Secretary Patrick Kennedy-also Caucasian- was accused of participating in “Secretary of State Hillary Clinton's email scandal, ” and the Department stated publicly that Kennedy denied knowledge of Secretary Clinton's private email server and that he “had very little insight into [her] email practices.” Id. ¶ 40.^[5] Moore also “alleges upon information and belief” that the Department has defended other unnamed Caucasian officials publicly and has refused to do the same for other unnamed African-American officials. Id. ¶ 41.

         Moore pursued his claims administratively along two parallel tracks. First, he contacted the Office of Civil Rights on February 1, 2016, claiming that the Department had breached its 2013 settlement agreement with Moore. Id. ¶ 30. On May 10, 2016, he added a claim that the Department had acted in bad faith when it negotiated the agreement back in 2013. Id. ¶¶ 30, 48. The Office of Civil Rights rejected both claims, and Moore appealed the Office's decision to the Equal Employment Opportunity Commission (EEOC). See Defs.' Mot. to Dismiss Ex. 2 at 3, Dkt. 21-4. On November 8, 2016, EEOC issued a final decision finding that the Department had not breached the settlement agreement and had not acted in bad faith. Id. at 4-5, 7-8. EEOC notified Moore that he could request reconsideration of the decision within 30 days or file a civil action within 90 days. Id. at 5-6. Moore did neither.

         Separately from these Office of Civil Rights and EEOC proceedings, Moore contacted an EEO counselor at the Department in December 2015^[6] to address what he viewed as ongoing employment discrimination. Id. ¶ 47. Moore agreed to mediation, which he hoped would resolve all issues between him and the Department, including the breach-of-settlement allegations then pending before the Office of Civil Rights. Id. ¶ 48. The Department refused to discuss the breach allegations in mediation, but the parties were still able to reach an agreement, and “only a memorialization remained.” Id. Before the memorialization occurred, however, Moore contacted the Office of Civil Rights to add “bad faith” to his pending breach-of-settlement allegation. Id. Three days after that, on May 13, 2016, the Department abandoned the tentative agreement it had reached with Moore in mediation-allegedly as retaliation for Moore alleging “bad faith” in the parallel Office of Civil Rights proceeding. Id.

         Moore filed a formal EEO complaint on May 11, 2016 and supplemented the complaint on July 15, 2016. Id. ¶ 49. The Department wrote to Moore on July 29, 2016 to inform him that it had accepted the following allegation for investigation:

Because of your race (African-American) and as acts of reprisal for prior protected activity and opposing discriminatory policies or practices, you were discriminated against when since 2013, you have been subjected to an ongoing hostile work environment, characterized by, but not limited to intimidation, management failing to take corrective action in response to concerns you have raised, and stymied advancement opportunities.

Defs.' Mot. to Dismiss Ex. 4 at 1, Dkt. 21-6.

         The letter further explained that Moore would “have the opportunity to discuss specific examples of the hostile work environment with the EEO investigator, ” id. at 1, and that these examples would “be investigated within the penumbra of the hostile work environment allegation, ” id. at 2. The letter also informed Moore that he was required to notify the Department in writing within 5 days if he objected to the framing of the issue accepted for investigation. Id.

         The Department issued a final decision on May 1, 2017 denying Moore's discriminatory and retaliatory hostile work environment claim. See Defs.' Mot. to Dismiss Ex. 5 at 2, 29-41. The Department assumed without deciding that Moore established discrimination and retaliation but concluded that he failed to show that the ...