MOORE v. UNITED STATES DEPARTMENT OF STATE et al
Filing
29
MEMORANDUM OPINION regarding the defendants' 21 Motion to Dismiss. See order for details. Signed by Judge Dabney L. Friedrich on January 9, 2019. (lcdlf1) Modified on 1/10/2019 (jl).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONALD L. MOORE,
Plaintiff,
v.
No. 17-cv-1531 (DLF)
UNITED STATES DEPARTMENT OF
STATE, et al.,
Defendants.
MEMORANDUM OPINION
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
1
Moore originally sued then–Secretary of State Rex Tillerson, but when Michael Pompeo
became Secretary of State, he was automatically substituted. See Fed. R. Civ. P. 25(d).
The facts here are recited as alleged in the plaintiff’s complaint and are assumed true, as they
must be in considering a motion to dismiss. See Ctr. for Responsible Sci. v. Gottlieb, 311 F.
Supp. 3d 5, 8 (D.D.C. 2018).
2
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
2
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
3
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.
4
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
The Court may consider the defendants’ copy of the settlement agreement because Moore does
not contest its authenticity and because he incorporated the agreement by reference in his
complaint. See, e.g., Slovinec v. Georgetown Univ., 268 F. Supp. 3d 55, 59 (D.D.C.
2017), aff’d, No. 17-7122, 2018 WL 1052650 (D.C. Cir. Jan. 26, 2018) (per curiam).
3
4
The agreement further provided that if Moore
believes that the Department has failed to comply with the terms of this Agreement,
[Moore] shall notify the Director, Office of Civil Rights . . . in writing of the alleged
noncompliance within 30 days when [Moore] knew or should have known of the
alleged noncompliance[.] . . . [I]f material noncompliance is established, [Moore]
may request that the terms of this Agreement be specifically implemented or,
alternatively, that [Moore’s EEO] complaint be reinstated for further processing
. . . and [Moore] returned to status quo ante.
Defs.’ Mot. to Dismiss Ex. 1, ¶ 1.
5
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.
6
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
7
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 20156 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
5
Moore also alleges in his opposition brief that William Howard, a Caucasian male and one of
the low-performing employees who was accused of sexual harassment, was promoted even
though the Department’s investigation concluded that Howard’s accusations against Moore were
false. Pl.’s Opp’n at 26, Dkt. 23.
6
The complaint alleges that Moore contacted the counselor in December 2016, but that must be
a typo. The contact began a process of mediation that concluded in May 2016. See Compl.
¶¶ 47–48. And the Department’s final decision states that Moore “contacted an EEO Counselor
on December 8, 2015.” See Defs.’ Mot. to Dismiss Ex. 5 at 7, Dkt. 21-7 (ECF pagination).
8
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-ofsettlement 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
9
but concluded that he failed to show that the Department’s “actions amounted to a hostile work
environment.”7 Id. at 41.
Moore filed this suit on July 28, 2017. Count I alleges “unlawful discrimination based on
race and color (hostile work environment),” Compl. at 17; count II alleges “unlawful retaliation
based on prior protected activity,” id. at 19; and count III alleges “unlawful discrimination based
on race,” id. at 21.
The defendants moved to dismiss, arguing that the bulk of Moore’s allegations are barred
by settlement agreement, unexhausted, and untimely, and that the remaining allegations are
insufficient to state a claim on the merits. For the reasons that follow, the Court agrees.
II. LEGAL STANDARD
A motion to dismiss Title VII claims—including for failure to exhaust administrative
remedies—is properly analyzed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Jones v. Bush, 160 F. Supp. 3d 325, 337 (D.D.C. 2016), aff’d, No. 16-5103, 2017 WL 2332595
(D.C. Cir. Feb. 21, 2017) (per curiam); Mount v. Johnson, 36 F. Supp. 3d 74, 80 (D.D.C. 2014).
Rule 12(b)(6) allows a defendant to move to dismiss the complaint for failure to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a
complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim is one
that “allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard does not
amount to a specific probability requirement, but it does require “more than a sheer possibility
7
It also concluded that Moore failed to prove that the legitimate, non-discriminatory reasons
offered by the Department for its actions were pretextual. Defs.’ Mot. to Dismiss Ex. 5 at 41.
10
that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 557 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”). A complaint
need not contain “detailed factual allegations,” but alleging facts that are “merely consistent with
a defendant’s liability . . . stops short of the line between possibility and plausibility.” Iqbal, 556
U.S. at 678 (internal quotation marks omitted).
Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and
the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471,
476 (D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply,
however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678
(quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is
not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a
complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. at 679.
When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself,
documents attached to the complaint, documents incorporated by reference in the complaint, and
judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997). Relevant here, the Court may consider Moore’s EEO documents. See Bowden
v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (considering “the pleadings and undisputed
documents in the record” while reaching the merits on a motion to dismiss); Vasser v.
McDonald, 228 F. Supp. 3d 1, 11 (D.D.C. 2016) (taking judicial notice of informal and formal
administrative complaints on a motion to dismiss); Williams v. Chu, 641 F. Supp. 2d 31, 35
11
(D.D.C. 2009) (“A plaintiff’s EEOC charge and the agency’s determination are both public
records, of which this Court may take judicial notice.” (quotation marks and alteration omitted)).
Finally, a Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily prejudicial.”
Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992).
III. ANALYSIS
A.
Count I: Hostile Work Environment
1.
Allegations Before November 26, 2013
The defendants argue that the 2013 settlement agreement bars Moore from asserting any
allegations that predate November 26, 2013. See Defs.’ Mot. to Dismiss 1, 3–4, 9–11. The
Court agrees.
Courts have repeatedly held that a valid settlement agreement bars a plaintiff from
asserting facts covered by the agreement in a subsequent hostile environment action. See Perry
v. Gotbaum, 766 F. Supp. 2d 151, 166 (D.D.C. 2011) (“[A]ny claims relating to conduct prior to
[the date specified in the settlement agreement] have been settled and released by [the plaintiff],
and the Court may not consider such conduct as a basis for [the plaintiff’s] hostile work
environment claim.”); Johnson v. Ashcroft, No. 02-1745, 2005 WL 2064095, at *4 (D.D.C. Aug.
25, 2005) (pre-settlement allegations could not be considered in subsequent hostile environment
suit even though the suit “involve[d] a different legal claim” because the “plain language” of the
settlement agreement “release[d] the defendant from liability based on any claim or cause of
action that could have been asserted during the mediation process”); Miller v. United States, 603
F. Supp. 1244, 1251 (D.D.C. 1985) (refusing to consider pre-settlement allegations even on a
continuing violation theory because the settlement agreement “contain[e]d no such limitation”);
see also Hopkins v. Bd. of Educ. of City of Chicago, 73 F. Supp. 3d 974, 984 (N.D. Ill. 2014)
12
(“By virtue of the settlement agreement, [the plaintiff] effectively agreed to carve out conduct
predating [her EEOC complaint] from any future claim she might assert.”).
The settlement agreement here bars Moore from asserting any claims against the
Department or its officials “whether or not known arising, or which might arise, up to and
including the date of [the] Agreement.” Defs.’ Mot. to Dismiss Ex. 1, ¶ 1. That language clearly
forecloses a hostile work environment claim premised on events before November 26, 2013,
when the agreement was executed, see id. ¶ 11.
Moore resists this conclusion because, in his view, the settlement agreement is invalid.
See Pl.’s Opp’n at 14–16. There is no question that he entered the agreement, see Compl. ¶ 28,
and subsequently sought to enforce it against the Department, see id. ¶¶ 30, 48. Nevertheless,
Moore argues that the agreement is legally invalid because it lacked “substantial consideration”
and because the Department “negotiated in bad faith.” Pl.’s Opp’n at 15.
Moore cites no authority to support this legal conclusion, which is alleged nowhere in
Moore’s complaint and would enjoy no deference even if it were. See Iqbal, 556 U.S. at 678. A
settlement agreement “between one private party and a federal agency . . .—like any contract
with the federal government—is governed by federal common law.” Wright v. Foreign Serv.
Grievance Bd., 503 F. Supp. 2d 163, 173 (D.D.C. 2007), aff’d, No. 07-5328, 2008 WL 4068606
(D.C. Cir. Mar. 17, 2008) (per curiam). When fashioning the federal common law of Title VII
settlement contracts, the D.C. Circuit looks to the Second Restatement of Contracts because its
principles “represent the prevailing view among the states and are consistent with the remedial
policies of Title VII.” Bowden, 106 F.3d at 439 (internal quotation marks and citation omitted).
Applying these principles, both of Moore’s arguments for invalidity fail.
13
As for his first argument—that the agreement lacked “substantial consideration”—courts
ordinarily “do not inquire into the adequacy of consideration,” especially “when one or both of
the values exchanged are uncertain or difficult to measure.” Restatement (Second) of Contracts
§ 79 cmt. c. (1981).8 Here, Moore agreed to withdraw all claims against the Department; in
exchange, the Department agreed to take a number of specific actions to facilitate Moore’s career
advancement within the Department. See Defs.’ Mot. to Dismiss Ex. 1 ¶¶ 1, 9. This exchange
satisfies the requirement of a bargained-for benefit or detriment, and the Court will not inquire
further into the relative value each party received.
Moore’s second argument—that the Department negotiated in bad faith—is equally
unavailing. The Second Restatement does not recognize bad faith as an independent basis for
invalidity; rather, “[p]articular forms of bad faith in bargaining are the subjects of rules . . . as to
invalidating causes such as fraud and duress.” Restatement (Second) of Contracts § 205 cmt. c.
Moore invokes none of these specific invalidation rules. He argues only that the agreement is
invalid because of three facts: (1) the Department brought five representatives to the mediation
while Moore was unrepresented; (2) the Department refused to let Moore release the
memorandum summarizing the Diplomatic Security investigation without a disclaimer that its
contents reflected Moore’s own views rather than the Department’s; and (3) the Department
failed to disclose that Kerry Howard had been issued a “right to sue letter” by the Office of Civil
Rights. See Pl.’s Opp’n at 15–16 (citing Compl. ¶¶ 28, 30, 54).
See also Restatement (First) of Contracts § 81 cmt. a. (1932) (“[W]hatever consideration a
promisor assents to as the price of his promise is legally sufficient consideration.”); 3 Williston
on Contracts § 7:21 (4th ed.) (“[S]o long as the requirement of a bargained-for benefit or
detriment is satisfied, the fact that the relative value or worth of the exchange is unequal is
irrelevant so that anything which fulfills the requirement of consideration will support a promise,
regardless of the comparative value of the consideration and of the thing promised. The rule is
almost as old as the doctrine of consideration itself.” (footnotes omitted)).
8
14
These facts do not establish invalidity under any of the potentially applicable invalidation
doctrines—namely, unconscionability, duress, or misrepresentation. “A party attacking the
validity of a settlement agreement bears a properly heavy burden.” Kent v. Dep’t of the Air
Force, 524 F. App’x 614, 616 (Fed. Cir. 2013) (internal quotation marks omitted and alteration
adopted). To establish unconscionability, Moore would have to allege “elements of deception or
compulsion” or that he “had no meaningful choice, no real alternative, or did not in fact assent or
appear to assent to the unfair terms.” Restatement (Second) of Contracts § 208 cmt. d. To
establish duress, he would have to allege that the Department committed “coercive acts.” Kent,
524 F. App’x at 616. And to establish misrepresentation through non-disclosure, he would have
to allege that the Department knew or “ha[d] reason to know” that the undisclosed fact would
“influence [Moore] in determining his course of action.” Restatement (Second) of Contracts
§ 161 cmt. b.
Moore’s trio of “bad faith” allegations falls short of these standards. First, although
Moore was unrepresented during mediation, he does not allege that he was in any way prevented
from retaining counsel. In fact, he expressly “agree[d] and acknowledge[d]” that he had “been
afforded the opportunity to consult with legal counsel” before signing the settlement agreement.
Defs.’ Mot. to Dismiss Ex. 1, ¶ 4. Further, the presence of multiple Department officials during
the mediation did not plausibly amount to coercion or otherwise render the resulting agreement
involuntary. Indeed, Moore admits that the officials’ presence, while intimidating, assured him
that his complaints were being “taken seriously.” Compl. ¶ 28.
Second, although Moore may have been disappointed that he could not use the
memorandum summarizing the Diplomatic Security investigation to publicly clear his name, an
agreement is not unenforceable “merely because the parties to it are unequal in bargaining
15
position, nor even because the inequality results in an allocation of risks to the weaker party.”
Restatement (Second) of Contracts § 208 cmt. d. The agreement bound the Department to issue
the memorandum to Moore—not to the public. See Defs.’ Mot. to Dismiss Ex. 1, ¶ 9. By failing
to bargain for a commitment by the Department to publicly exonerate him or to allow him to
speak freely with the media, Moore assumed the risk that the memorandum would not clear his
name as he hoped. To the extent Moore disagrees and believes the Department breached its
obligations under the agreement, the agreement itself provides a remedy: Moore can allege noncompliance before the Office of Civil Rights and, if he prevails, return to the status quo and
reinstate his 2013 EEO claim. See id. ¶ 1. Moore started that process, lost, and abandoned his
complaint by choosing not to appeal or request reconsideration of the Office’s decision. See
Defs.’ Mot. to Dismiss Ex. 2, at 5–6. He cannot resurrect that complaint now by repackaging it
as a “bad faith” defense to the agreement’s validity.
Finally, although the Department did not disclose that Kerry Howard had received a
right-to-sue letter from EEOC, that letter was the natural consequence of Title VII’s enforcement
procedures and simply reflected the fact that EEOC had completed its investigation. See 42
U.S.C. § 2000e-5(f)(1); see also 29 C.F.R. § 1601.19(a). An ordinary person would regard the
issuance of a right-to-sue letter—which itself has no bearing on the merits of the underlying
employment discrimination claim—as unimportant, and the Department had no reason to expect
Moore to think otherwise. See Restatement (Second) of Contracts § 161 cmt. b (a party “need
not disclose facts that the ordinary person would regard as unimportant unless he knows of some
peculiarity of the other person that is likely to lead him to attach importance to them”). Moore
does not allege that the Department knew or believed that Kerry Howard would file a federal
lawsuit or that any such suit would be meritorious. See Compl. ¶ 28. Nor does he allege that the
16
Department expected or planned to settle Kerry Howard’s claim. See id. Rather, Moore faults
the Department for failing to “suggest[]” that a potential lawsuit could create a potential
opportunity for the Department to defend him publicly. Id. The Department’s failure to consider
and share this speculative possibility, however, cannot plausibly be considered an element of
deception or the omission of a material fact.
In short, Moore has not established any legal basis for invalidating the settlement
agreement. The Court will therefore “carve out” any allegations before November 26, 2013 from
Moore’s hostile environment claim and consider them “only as background information and only
to the extent necessary to understand [his] claims.” Hopkins, 73 F. Supp. 3d at 984.
2.
Merits
A hostile work environment exists where a plaintiff’s employer subjects him to
“discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.” Baloch
v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)). In assessing whether a hostile work environment exists, courts “look[] to
the totality of the circumstances, including the frequency of the discriminatory conduct, its
severity, its offensiveness, and whether it interferes with an employee’s work performance.” Id.
Stripped of the pre-settlement allegations, Moore’s hostile work environment claim
consists of:
•
Moore’s failure to receive any promotions or performance-based bonuses from
November 26, 2013 through 2016. Compl. ¶ 43.
•
Young’s 2015 Office of Inspector General complaint accusing Moore of perjury.
Id. ¶ 39.
•
Kerry Howard’s federal lawsuit and the Department’s decision to settle it. Id.
¶ 35.
17
•
The Department’s refusal to allow Moore to release the memorandum
summarizing the Diplomatic Security investigation without stating that it
expressed Moore’s personal views and not the official views of the Department.
Id. ¶ 37.
•
The Department’s failure to revise Moore’s 2012 employee evaluation. Id. ¶ 30.
•
The Department’s decision to abandon the tentative settlement agreement it had
reached with Moore during mediation in 2016. Id. ¶ 48.
•
A Department employee’s suggestion that Moore consult with HR because “there
were ‘black people’ there.” Id. ¶ 36.
•
Robinson’s suggestion that Moore seek employment in the private sector. Id.
¶ 38.
These allegations do not establish “severe or pervasive” harassment. First, the allegations
are relatively infrequent and spread out over at least two years and across multiple offices within
the Department. See Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (dismissing
hostile work environment claim in part because “the alleged events [we]re temporally diffuse,
spread out over a four-year period, suggesting a lack of pervasiveness”).
Second, the allegations largely concern Moore’s prospects for advancement, as opposed
to verbal or physical abuse in his actual work environment. “[C]ourts have been hesitant to find
a claim for hostile work environment when a complaint contains no allegations of discriminatory
or retaliatory intimidation, ridicule, or insult in the plaintiff’s day-to-day work environment and
relies instead on incidents of allegedly discriminatory non-promotions and other performancebased actions.” Outlaw v. Johnson, 49 F. Supp. 3d 88, 91 (D.D.C. 2014) (internal quotation
marks omitted and alteration adopted). But see Behrens v. Tillerson, 264 F. Supp. 3d 273, 280
(D.D.C. 2017) (allowing hostile work environment claim to proceed based largely on
performance-related personnel decisions). For example, in Laughlin v. Holder, the plaintiff
alleged that a “reassignment” had “hurt her reputation and undermined her leadership,” 923 F.
18
Supp. 2d 204, 220 (D.D.C. 2013), and that she had remained in the same role “for more than
seven years while nearly all of [her] peers [we]re promoted,” id. at 221. But despite the
plaintiff’s claim that this career stagnation was “objectively and subjectively humiliating,” the
court “simply d[id] not find that the non-promotions and other performance-based actions
alleged r[ose] to the level of an actionable hostile work environment.” Id. Similarly, in
Nurriddin v. Bolden, the court dismissed a hostile environment claim where the employer
allegedly
passed [the plaintiff] over for performance awards, lowered his performance
evaluations, unfairly reprimanded and criticized him, made disparaging remarks
about his EEO complaints, closely scrutinized his work, refused him a window
cubicle, removed some of his duties, . . . denied his requests to travel or otherwise
failed to provide support for his work with staffing and funding[, and] opposed his
career advancement in more direct ways, including the denial of a noncompetitive
promotion, denial of a within-grade increase, and opposition to his transfer to
another office or detail assignment.
674 F. Supp. 2d at 93–94. The Court reasoned that the disparaging remarks, diminished
responsibility, negative evaluations, and close scrutiny were not “sufficiently intimidating or
offensive in an ordinary workplace,” and it rejected the plaintiff’s attempt to combine those
events with “nonpromotions, denial of leave, and termination” to establish a hostile work
environment claim. Id. at 94. So too here, Moore’s various performance- and promotion-related
allegations were not intimidating or offensive enough to be considered harassment.
Third, the allegations by Young and Kerry Howard were made outside the workplace in
administrative proceedings and public court filings and do not demonstrate harassment within
Moore’s actual work environment. At most, Moore accuses the Department of engaging in
passive harassment, by failing to take affirmative steps to rebut those employees’ allegations.
But assuming silence can ever constitute actionable harassment—a doubtful proposition—the
Department’s decision not to comment on the Naples allegations was squarely addressed by the
19
2013 settlement agreement and cannot form the basis for a subsequent hostile work environment
claim. See Miller, 603 F. Supp. at 1251. Further, the Department was limited in its ability to
prevent or interfere with its employees’ administrative and federal court proceedings, which are
themselves protected by Title VII. See 42 U.S.C. § 2000e-3(a); Rochon v. Gonzales, 438 F.3d
1211, 1215–16 (D.C. Cir. 2006) (explaining that Title VII’s substantive retaliation provisions
apply to suits against the federal government); cf. Perry, 766 F. Supp. 2d at 168–69 (employer
entitled to summary judgment where hostile work environment claim was premised on its
“failure to stop [statutorily protected] conduct”).
Although Moore does allege a single offensive and racial remark by a high-level
Department employee, see Compl. ¶ 36, generally the “mere utterance of an epithet which
engenders offensive feelings in a employee does not sufficiently affect the conditions of
employment to implicate Title VII,” Harris, 510 U.S. at 21 (internal quotation marks omitted and
alteration adopted). The D.C. Circuit has suggested that the use of a single “deeply offensive”
and “unambiguously racial” epithet might be “sufficient to establish a hostile work
environment,” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam)
(internal quotation marks omitted), but the isolated comment here—while racially charged and
insulting to Moore—was not so deeply and unambiguously offensive as to create a hostile work
environment, even in combination with Moore’s various other allegations.
Wise v. Ferrero, on which Moore relies, is consistent with this conclusion. 842 F. Supp.
2d 120 (D.D.C. 2012). There, a supervisor used the one uniquely offensive racial epithet that the
D.C. Circuit has suggested can create a hostile environment by itself. See id. at 121; Ayissi-Etoh,
712 F.3d at 577. In addition, the plaintiff received “threats of discipline,” was “singled out and
excluded from trainings and award ceremonies,” and was “denied promotions.” Wise, 842 F.
20
Supp. 2d at 126. The court held that these allegations “cleare[ed] the Motion-to-Dismiss hurdle,
if not by much.” Id. at 127. But if Wise presented a borderline case, then Moore’s allegations
clearly fall short, as they lack the key elements of insult, ridicule, and exclusion that pushed Wise
over the edge. See id. at 126–27.
Upon reviewing the totality of the Department’s alleged discriminatory conduct and its
frequency, severity, offensiveness, and impact on Moore’s work performance, the Court
concludes that Moore has not alleged a hostile work environment. Moore’s various
disappointments and conflicts within the Department do not establish that he was subjected to
“discriminatory intimidation, ridicule, and insult” that was “sufficiently severe or pervasive” to
“create an abusive working environment.” Baloch, 550 F.3d at 1201 (internal quotation marks
omitted). The Court will therefore dismiss count I.9
B.
Count II: Retaliation
There is some confusion over whether count II raises a claim of retaliation based on
discrete acts or a retaliatory hostile work environment. Compare Defs.’ Mot. to Dismiss at 7–8
(treating count II as a discrete retaliation claim), with Pl.’s Opp’n at 23–25 (treating count II as a
retaliatory hostile work environment claim). Although Moore insists in his opposition brief that
the “Department’s retaliatory actions . . . are building blocks of a hostile work environment, not
discrete acts,” Pl.’s Opp’n at 23, and that his “allegations are not discrete acts of discrimination,”
Although the Court does not consider Moore’s pre-settlement allegations, it would reach the
same conclusion even if it did. The Naples employees’ original accusations were made outside
the workplace in administrative proceedings, to a U.S. senator, and in the media; the
Department’s role in the scandal was passive and impacted Moore’s promotion and advancement
as opposed to his actual workplace environment; Moore’s detail to a “dead-end position” was a
performance-related personnel decision; and the handful of offensive comments made by
employees about Moore’s reputation and the prostitution rumors were infrequent and scattered
across different units within the Department. Moore’s complaint therefore does not allege severe
or pervasive harassment even when analyzed in its entirety.
9
21
id. at 24, that theory strays significantly from his complaint. The only mention of a hostile work
environment in his complaint appears in count I, both in the heading, Compl. at 17, and in a
paragraph alleging a hostile work environment due to “racial discrimination,” id. ¶ 52. Although
count II “adopts and incorporates by reference” every other allegation in the complaint, id. ¶ 60,
it does not mention a hostile work environment in the heading; nor does it allege that such an
environment was imposed on account of Moore’s participation in protected activity, see id. at
19–20.
Ultimately, the difference is immaterial. If count II does advance a retaliatory hostile
work environment claim, then it fails to allege severe or pervasive harassment for the reasons
described above. See supra III.A. If, on the other hand, it advances a discrete retaliation claim,
then it fails to allege an adverse employment action within the relevant filing period, for the
reasons that follow.
“Title VII complainants must timely exhaust their administrative remedies before
bringing their claims to court.” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal
quotation marks omitted and alterations adopted); see also 42 U.S.C. § 2000e-16(c). The
exhaustion requirement “serves the important purposes of giving the charged party notice of the
claim and narrowing the issues for prompt adjudication and decision,” Park v. Howard Univ., 71
F.3d 904, 907 (D.C. Cir. 1995) (internal quotation marks omitted and alteration adopted), and it
“ensure[s] that the federal courts are burdened only when reasonably necessary,” Brown v.
Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). In the Title VII context, failure to exhaust is an
affirmative defense, and thus “the defendant bears the burden of pleading and proving
it.” Bowden, 106 F.3d at 437; see also Smith-Haynie v. District of Columbia, 155 F.3d 575, 578
22
(D.C. Cir. 1998) (“[A]n affirmative defense may be raised by pre-answer motion under Rule
12(b) when the facts that give rise to the defense are clear from the face of the complaint.”).
When the employee alleges that he or she was the victim of a “discrete retaliatory or
discriminatory act,” the timeliness inquiry focuses on that particular act. Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 110 (2002); see also Achagzai, 170 F. Supp. 3d at 175.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.
“Under Title VII, employees who believe they have been discriminated against must first
consult an Equal Employment Opportunity (EEO) Counselor within 45 days of the alleged
discriminatory acts.” In re James, 444 F.3d 643, 644 (D.C. Cir. 2006); see 29 C.F.R.
§ 1614.105(a)(1). Moore first contacted the EEO Counselor on December 8, 2015. See Defs.’
Mot. to Dismiss Ex. 5 at 7. Counting back forty-five days from that date, Moore timely
consulted the EEO Counselor regarding only discriminatory or retaliatory acts that occurred on
or after October 24, 2015.
That leaves Moore with two possible discrete acts of retaliation: the perjury accusation
Young submitted to the Office of the Inspector General “[i]n late fall of 2015,” Compl. ¶ 39, and
23
the Department’s decision in 2016 to abandon a tentative settlement agreement with Moore after
he contacted the Office of Civil Rights about the Department’s alleged bad faith, id. ¶ 65.10
Neither allegation suffices. To a state a claim for retaliation under Title VII, a complaint
must “plausibly establish” that “the employee suffered a materially adverse action by the
employee’s employer.” Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of
Library of Cong., Inc. v. Billington, 737 F.3d 767, 772 (D.C. Cir. 2013). Young’s OIG
complaint does not qualify because “the request for an investigation by an independent body (as
opposed to the disciplinary action that may follow) does not constitute an actionable adverse
employment action,” and Moore does not allege any disciplinary or other employment action
resulting from the investigation. Ware v. Billington, 344 F. Supp. 2d 63, 76 (D.D.C. 2004); see
Although the Complaint generally alleges that Moore “received none of the assignments on
which he bid during the 2013-2016 bidding process,” Compl. ¶ 44, it does not allege that he was
denied any particular assignment or promotion during the 45-day filing period. See Leiterman v.
Johnson, 60 F. Supp. 3d 166, 187 (D.D.C. 2014) (non-promotion treated as a “discrete
employment action” for exhaustion purposes, and “the mere allegation that Plaintiff continued in
his position” during the 45-day filing window “without the promotion he believed was due
[could not] save Plaintiff’s claim”). Nor did Moore administratively exhaust any discrete nonpromotions or bid rejections. See Pl.’s Opp’n Ex. 1 at 11, Dkt. 23-1 (ECF pagination) (asserting
only that “promotions are withheld,” without specifying which positions or when); see also
Sierra v. Hayden, 254 F. Supp. 3d 230, 243–44 (D.D.C. 2017) (plaintiff “had an obligation to file
administrative complaints within the time required under [agency] regulations for each alleged
non-promotion, because each instance of non-promotion constituted a discrete discriminatory
action” (internal quotation marks omitted)); Krishnan v. Foxx, 177 F. Supp. 3d 496, 504 (D.D.C.
2016) (each “unsuccessful application[] for promotion” was “a discrete event that required a
timely EEO complaint.”).
10
24
also King v. Holder, 77 F. Supp. 3d 146, 151 (D.D.C. 2015) (applying this principle to a
retaliation claim premised on the initiation of an Office of Inspector General investigation).11
The Department’s abandonment of the 2016 settlement agreement also does not qualify
as a materially adverse action. Even if the tentative, unmemorialized agreement were binding,
but see 29 C.F.R. § 1614.603 (“Any settlement reached” between an agency and a discrimination
claimant “shall be in writing and signed by both parties. . . .”), an employer’s breach of a
settlement agreement for discriminatory or retaliatory reasons “is not enforceable under Title VII
as an adverse personnel action because it is appropriately addressed under principles of contract
law,” Kilpatrick v. Paige, 193 F. Supp. 2d 145, 154 (D.D.C. 2002).
Because Moore alleges neither severe or pervasive harassment nor a discrete and
materially adverse action within the 45-day filing window, the Court will dismiss count II.
C.
Count III: Discrimination
Count III fails for the same reason as count II. The only discrete acts alleged in the
relevant filing window are Young’s perjury complaint and the Department’s abandonment of the
tentative settlement agreement in 2016—neither of which qualifies as an adverse employment
action. See Baloch, 550 F.3d at 1196 (an “adverse employment action” is an “essential
element[]” of a Title VII discrimination claim).
Further, it is not clear that the Department could have prevented or interfered with Young’s
participation in the Office of Inspector General proceeding without running afoul of Title VII’s
antiretaliation provisions. See Paulk v. Architect of the Capitol, 79 F. Supp. 3d 82, 90–91
(D.D.C. 2015) (assuming that the plaintiff’s “participation” in an “OIG safety investigation”
constituted protected activity for purposes of Title VII suit), aff’d in part, No. 15-5036, 2015 WL
5231062 (D.C. Cir. July 1, 2015), dismissed, No. 15-5036, 2015 WL 6153697 (D.C. Cir. Oct. 7,
2015); cf. Perry, 766 F. Supp. 2d at 166 (employer entitled to summary judgment where Title
VII claim was based on the employer’s failure to stop its employees’ protected activity).
11
25
Count III also fails for an independent reason: Moore never exhausted a claim based on
discrete acts of discrimination. Rather, his administrative complaint and supplement alleged
only that he had “been the victim of continuing discrimination . . . in the form of a hostile work
environment.” Pl.’s Opp’n Ex. 1 at 9 (emphasis added). Based on the hostile work environment
theory advanced in Moore’s administrative complaint, the Department notified Moore by letter
that it had accepted a single claim of a retaliatory and discriminatory “hostile work environment”
for investigation. Defs.’ Mot. to Dismiss Ex. 4 at 1; see also id. at 1–2 (explaining that Moore
would have an “opportunity to discuss specific examples of the hostile work environment” and
that these examples would “be investigated within the penumbra of the hostile work environment
allegation”). Moore was given an opportunity to object to the agency’s framing and “propose an
alternative formulation” if he “believe[d] the issues ha[d] not been properly articulated,” id. at 2,
but he did not do so.
“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like
or reasonably related to the allegations of the charge and growing out of such allegations.” Park,
71 F.3d at 907 (internal quotation marks omitted). Because a hostile work environment claim
and a discrete discrimination claim are “different in kind,” Morgan, 536 U.S. at 115, exhausting
one does not exhaust the other. Moreover, “courts have generally held that failure to respond to
the [agency’s] framing of the issue supports a finding that a plaintiff has failed to exhaust his
administrative remedies with respect to those claims not approved by the EEO.” McKeithan v.
Boarman, 803 F. Supp. 2d 63, 68 (D.D.C. 2011) (internal quotation marks omitted) (collecting
cases), aff’d in part, No. 11-5247, 2012 WL 1450565 (D.C. Cir. Apr. 12, 2012) (per
curiam), aff’d sub nom. McKeithan v. Vance-Cooks, 498 F. App’x 47 (D.C. Cir. 2013) (per
curiam). “[W]here an agency reasonably fails to identify for investigation a claim indirectly
26
asserted in a plaintiff’s administrative charge, and where the plaintiff does not timely object to
this omission before the agency, the plaintiff cannot show that he has exhausted administrative
remedies as to this claim.” Dick v. Holder, 80 F. Supp. 3d 103, 114–15 (D.D.C. 2015).
Here, the Department acted reasonably in omitting a discrete discrimination claim from
its investigation. Moore’s complaint focused exclusively on a hostile work environment theory,
see Pl.’s Opp’n Ex. 2 at 9–10, and Moore “made no attempt to augment the accepted allegation
or amend his [EEO] complaint prior to the conclusion of the investigation,” Green v. Small, No.
CIV.A. 05–1055, 2006 WL 148740, at *6 (D.D.C. Jan. 19, 2006) (internal quotation marks
omitted). Because Moore did not exhaust a discrete discrimination claim, he cannot advance one
for the first time here.12
The Court will dismiss count III for failure to state a claim on the merits and for failure to
exhaust administrative remedies.
CONCLUSION
For the foregoing reasons, the Court grants the defendants’ motion to dismiss. A separate
order accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
January 9, 2019
12
The Court does not consider whether the same exhaustion analysis applies to count II.
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