United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
se Plaintiff John Kangethe, an employee of the District
of Columbia Department of Employment Services
(“DOES”), brings retaliation, hostile work
environment, and negligent hiring and retention claims
against his employer. Plaintiff alleges that he has faced
numerous adverse actions in his employment stemming from
formal and informal complaints that he made regarding his
supervisor, Saikou Diallo. Plaintiff contends that these
adverse actions have resulted in a hostile working
environment. He further alleges that it was negligent of DOES
to hire Mr. Diallo and to retain him in a supervisory
position. Plaintiff brings this lawsuit against the District
of Columbia under the Age Discrimination in Employment Act
(“ADEA”), the District of Columbia Human Rights
Act (“DCHRA”), and Title VII of the Civil Rights
Act (“Title VII”).
the Court is Defendant District of Columbia's  Motion
to Dismiss. Defendant argues that the Court should dismiss
Plaintiff's entire Complaint. First, Defendant claims
that Plaintiff's retaliation claims should be dismissed
because they fail to state a claim on which relief can be
granted. Second, Defendant contends that Plaintiff did not
allege a protected class for his hostile work environment
claims, that his hostile work environment claims are
unexhausted, and that his allegations of a hostile work
environment are not sufficiently pervasive to warrant relief.
Third, Defendant argues that Plaintiff's common-law
negligent hiring and retention claim is preempted by the
District of Columbia Comprehensive Merit Personnel Act of
1978 (“CMPA”) and that Plaintiff's
allegations fall short of the standard for negligent hiring
and retention claims.
consideration of the pleadings, the relevant legal authorities,
and the record for purposes of this motion, the Court GRANTS
IN PART and DENIES IN PART Defendant's Motion. The Court
finds that three of the six allegedly retaliatory acts in
Plaintiff's Complaint do not constitute “adverse
actions” for which relief may be granted. Accordingly,
Defendant's Motion is GRANTED and Plaintiff's
retaliation claims are DISMISSED to the extent that they are
premised on these three insufficient actions. The Court
further concludes that Plaintiff failed to exhaust his
hostile work environment claims and GRANTS Defendant's
motion DISMISSING those claims. Finally, the Court GRANTS
Defendant's motion DISMISSING Plaintiff's negligent
hiring and retention claim as that claim is preempted by the
CMPA. Defendant's Motion is DENIED in all other respects.
purposes of the motion before the Court, the Court accepts as
true the well-pleaded allegations in Plaintiff's
Complaint. The Court does “not accept as true, however,
the plaintiff's legal conclusions or inferences that are
unsupported by the facts alleged.” Ralls Corp. v.
Comm. on Foreign Inv. in the United States, 758 F.3d
296, 315 (D.C. Cir. 2014). Further, because Plaintiff
proceeds in this matter pro se, the Court must
consider not only the facts alleged in Plaintiff's
Complaint, but also the facts alleged in Plaintiff's
opposition to Defendant's motion to dismiss. See
Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152
(D.C. Cir. 2015) (“[A] district court errs in failing
to consider a pro se litigant's complaint
‘in light of' all filings, including filings
responsive to a motion to dismiss.”); Fillmore v.
AT & T Mobility Servs. LLC, 140 F.Supp.3d 1, 2
(D.D.C. 2015) (“The Court, as it must in a case brought
by a pro se plaintiff, considers the facts as
alleged in both the Complaint and Plaintiff's Opposition
to Defendant's Motion to Dismiss.”).
Plaintiff is pro se, his Complaint is at times
difficult to understand and contains extraneous information.
The Court has attempted to summarize the facts relating to
Plaintiff's claims and recites only the background
necessary for the Court's resolution of the pending
Motion to Dismiss.
John Kangethe was hired in 2002 as a Labor Economist for DOES
and has been employed there ever since. Compl., ECF No. 1,
¶ 12. In September 2014, Saikou Diallo was promoted to
supervise Plaintiff. Plaintiff had also applied for this
supervisory position. Id. at ¶ 23. Shortly
after Mr. Diallo's promotion, Plaintiff filed a
discrimination claim, alleging that in promoting Mr. Diallo
rather than Plaintiff, DOES had discriminated against
Plaintiff on the basis of age. Id. at ¶ 26.
discovery in his age discrimination lawsuit, Plaintiff
alleges that records revealed that Mr. Diallo had been
promoted and given a raise despite the fact that Mr. Diallo
had deceived DOES by falsely claiming that he had completed
his PhD in economics. Id. at ¶¶ 30-40. The
records also revealed that DOES had initially hired Mr.
Diallo at a salary almost $10, 000 higher than that of
Plaintiff. Id. at ¶¶ 61-68. Based on the
information obtained in discovery, in April 2017 Plaintiff
began reporting Mr. Diallo's alleged misrepresentations
both formally to the Office of the Inspector General and the
Office of Risk Management and informally to officials at
DOES. Id. at ¶¶ 41-45.
alleges that Mr. Diallo retaliated against him for his
complaints by sending him emails containing “offensive
and disparaging language.” Id. at ¶¶
170-73. Plaintiff also alleges that he was stripped of his
essential duties, namely producing the 2016 Annual Economic
Report. Id. at ¶¶ 87-96. Plaintiff further
claims that Mr. Diallo instructed him to remove from the DOES
website certain documents that Plaintiff had produced,
requiring Plaintiff to receive Mr. Diallo's pre-approval
before posting documents. Id. at ¶¶
in lieu of producing his usual reports, Plaintiff alleges
that Mr. Diallo gave him an excessive and unreasonable
workload. Id. at ¶¶ 69-86. Specifically,
Plaintiff claims that Mr. Diallo asked him to complete three
economic reports in an unreasonable time-frame and to
complete a minimum wage study which Plaintiff contends an
outside contractor was already assigned to complete.
Id. at ¶¶ 73-83, 102-14. Plaintiff also
alleges that Mr. Diallo asked him to complete a cost-benefit
analysis on training programs and services at DOES.
Id. at ¶¶ 121-33. Plaintiff argues that,
over his objections regarding time and experience
limitations, his work on these projects was included on his
FY2017 performance plan and evaluation. Id. at
¶¶ 137-49. Plaintiff claims that Mr. Diallo added
these responsibilities to his FY2017 performance plan in
order to issue him a “marginal performer” rating
on his evaluation. Id.at ¶¶ 150-55.
performance evaluation meeting, Plaintiff alleges that Mr.
Diallo “complain[ed] about the lawsuits which Plaintiff
had filed against DOES.” Id. at ¶ 157.
Plaintiff further alleges that Mr. Diallo said that
Plaintiff's lawsuits against DOES should not prevent him
from performing his duties. Id. At the end of the
meeting, Plaintiff contends that Mr. Diallo refused to revise
the evaluation and that the evaluation was finalized by DOES.
Id. at ¶¶ 158-60. Plaintiff submitted a
request for an appeal of his performance evaluation with the
DOES Human Resources Department but contends that the appeal
has not occurred. Id. at ¶¶ 161-62.
also complains that DOES continued to promote and praise Mr.
Diallo despite his misrepresentations about his academic
credentials and his allegedly discriminatory and retaliatory
treatment of Plaintiff. Plaintiff specifically alleges one
staff meeting in December 2017 where DOES officials
recognized Mr. Diallo for outstanding service to DOES. Soon
thereafter, Mr. Diallo was raised in the organizational chart
while Plaintiff was reassigned to be under the supervision of
a younger, newly-promoted employee. Id. at
on these alleged facts, Plaintiff contends that Defendant
violated federal and District of Columbia law by retaliating
against him for engaging in legally-protected conduct, by
creating a hostile work environment, and by negligently
hiring and retaining Mr. Diallo.
Defendant moves to dismiss Plaintiff's Complaint under
Rule 12(b)(6). According to Rule 12(b)(6), a party may move
to dismiss a complaint on the grounds that it “fail[s]
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not]
suffice if it tenders ‘naked assertion[s]' devoid
of ‘further factual enhancement.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
Defendant moves to dismiss each of Plaintiff's three
claims: retaliation, hostile work environment, and negligent
hiring and retention. The Court will address each of
Defendant's arguments in turn.
order to state a claim of retaliation under Title VII or the
DCHRA, the plaintiff must allege a protected activity, a
materially adverse action, and a causal link between the two.
Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)
(discussing Title VII); Carpenter v. Fed. Nat'l
Mortg. Ass'n, 174 F.3d 231, 235 n.3 (D.C. Cir. 1999)
(discussing DCHRA). These statutes protect from retaliation
those who have participated in filing a discrimination action
and those who have opposed employment practices reasonably
believed to be discriminatory. See 29 U.S.C. §
623(d); see also D.C. Code § 2-1402.61. The
plaintiff must allege that he engaged in one of these types
of protected activity and that he experienced a materially
adverse action because he engaged in that activity.
adverse action is “‘a significant change in
employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits.'” Taylor v. Small, 350 F.3d
1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). An employee
must “experience[ ] materially adverse consequences
affecting the terms, conditions, or privileges of employment
or future employment opportunities such that a reasonable
trier of fact could find objectively tangible harm.”
Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.
2002); see also Holcomb v. Powell, 433 F.3d 889, 902
(D.C. Cir. 2006) (distinguishing between “purely
subjective injuries” which are not actionable, and
“objectively tangible harm, ” which is
actionable). Therefore, “not everything that makes an
employee unhappy is an actionable adverse action.”
Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir.
2001). For the purposes of retaliation claims in particular,
an employment action must be “materially adverse,
‘which in this context means it well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.'” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219
(D.C. Cir. 2006) (internal quotation marks omitted)).
contends that the following actions constitute
“materially adverse actions” causally connected
to a protected activity: (1) Plaintiff was paid less than Mr.
Diallo; (2) Plaintiff was stripped of essential job-related
duties; (3) Plaintiff was assigned an inequitable
distribution of work with unrealistic deadlines; (4)
Plaintiff was issued a negative performance evaluation
predicated on the disproportionate workload; (5) Plaintiff
was denied due process to appeal the negative performance
evaluation; and (6) Plaintiff was constructively demoted.
Pl.'s Opp'n, ECF No. 9, 7. Defendant argues that none
of these incidents are actionable adverse actions causally
connected to a protected activity.
Court agrees in part and GRANTS Defendant's motion to
dismiss as to Plaintiff's claims for (1) being paid less
than Mr. Diallo, (2) being denied due process to appeal his
performance evaluation, and (3) being constructively demoted.
The Court otherwise DENIES Defendant's motion to dismiss
Plaintiff's retaliation claims.
Being paid less than Mr. Diallo
argues that in April 2014, Defendant hired Mr. Diallo at a
starting salary of $82, 357, which was $10, 000 higher than
what Plaintiff was making at the time. Compl., ECF No. 1,
¶ 64. Plaintiff contends that Mr. Diallo was given this
higher salary based on “his material misrepresentations
of academic credentials.” Id.
initial matter, Defendant argues that this claim is untimely
because it occurred outside the limitations period for Title
VII and the DCHRA. Plaintiff counters that the claim is
timely because he only learned about the claim in March 2017
through the discovery process for his age discrimination
lawsuit. Pl.'s Opp'n, ECF No. 9, 9.
the Court assumes that this claim is timely, being paid less
than Mr. Diallo is not a materially adverse action causally
connected to a protected activity. Throughout his Complaint
and his opposition to Defendant's motion, Plaintiff
repeatedly states that Mr. Diallo was paid this higher salary
“based on his material misrepresentations of his
academic credentials.” Id. at 9, see
also Compl., ECF No. 1, ¶ 64. The fact that Mr.
Diallo may have misrepresented his credentials to obtain a
higher salary fails to establish that Plaintiff was
does make the conclusory allegation that Mr. Diallo was paid
more than Plaintiff due to Plaintiff's “prior EEOC
activities filed in January 2010, and an on-going
discrimination case arising from those EEOC
activities.” Pl.'s Opp'n, ECF No. 9, 6.
Plaintiff also contends that Mr. Diallo and the
decision-makers at DOES “were all younger than
Plaintiff, ” which “provides proof of intentional
retaliatory wage discrimination against Plaintiff on account
of age.” Compl., ECF No. 1, ¶ 67.
Plaintiff's claim is premised on the fact that Mr. Diallo
received a higher salary than Plaintiff because Mr. Diallo
misrepresented his credentials. Plaintiff never alleges that
he himself was paid less than he otherwise should have been
paid based on his own government pay-grade level. That Mr.
Diallo was paid a higher salary due to his allegedly
misrepresented credentials ...