United States District Court, District of Columbia
DONALD L. MOORE, Plaintiff,
UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE.
L. Moore brings this Title VII action against his employer,
the U.S. Department of State, and Secretary of State Michael
Pompeo,  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.
Moore, an African American male, has worked for the
Department of State since 1992. See Compl.
¶¶ 1, 8, Dkt. 1. 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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.”
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.
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). 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.
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.
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.
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.
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.
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.
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
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. 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.
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.
from these Office of Civil Rights and EEOC proceedings, Moore
contacted an EEO counselor at the Department in December
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.
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.
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.
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 ...