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Kangethe v. District of Columbia

United States District Court, District of Columbia

January 18, 2019




         Pro 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”).

         Before the Court is Defendant District of Columbia's [6] 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.

         Upon consideration of the pleadings[1], 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.

         I. BACKGROUND

         For the 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.”).

         As 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.

         Plaintiff 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.

         During 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.

         Plaintiff 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 ¶¶ 97-101.

         Additionally, 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. ¶¶ 150-55.

         In his 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.

         Plaintiff 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 ¶¶ 182-85.

         Based 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.

         1. Retaliation Claims

         In 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.

         An 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)).

         Plaintiff 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.

         The 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.

         A. Being paid less than Mr. Diallo

         Plaintiff 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.

         As an 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.

         Even if 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 retaliated against.

         Plaintiff 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.

         But, 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 ...

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