Washington v. Perez et al

Filing 28

MEMORANDUM AND ORDER - IT IS ORDERED: The Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Filing No. 14 ) is granted. The Plaintiff's Complaint (Filing No. 1 ) is dismissed, with prejudice. The Plaintiff's Motions for Leave to Amend (Filing Nos. 23 and 26 ) are denied. A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES A. WASHINGTON JR.,
Plaintiff,
v.
THOMAS E. PEREZ, Secretary,
Department of Labor, and CLARENCE
H. WOOD JR.,
Defendants.

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CASE NO. 8:16CV68

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendants’ Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment (Filing No. 14). For the reasons discussed
below, the Motion will be granted and the Plaintiff’s Complaint will be dismissed, with
prejudice.
FACTS
The Defendants’ Brief (Filing No. 17) contains a statement of material facts with
pinpoint citations to the evidentiary record, in compliance with NECivR 56.1(a).
Washington did not respond to the Defendants’ statement of facts as required by NECivR
56.1(b)(1), and the facts presented in the Defendants’ Brief are deemed admitted. Id. The
following is a summary of those facts.
Washington is an African-American male who at all relevant times was employed
by the United States Department of Labor (“DOL”) as an equal opportunity specialist with
the DOL Office of Federal Contract Compliance Programs (“OFCCP”). In February 2014,
Washington initiated an informal Equal Employment Opportunity (“EEO”) complaint
process. In March 2014, Washington, through counsel, filed the first of two bankruptcy
protection proceedings in the U.S. Bankruptcy Court for the District of Nebraska. In

connection with Washington’s bankruptcy proceeding, he was required to list contingent
and unliquidated claims of every nature, as well as all suits and administrative proceedings
to which he was a party within one year preceding the filing of his bankruptcy action. He
did not list any EEO claim or proceeding. On April 1, 2014, the Civil Rights Center at DOL
received Washington’s formal EEO complaint, alleging employment discrimination.
Washington’s first bankruptcy action was closed on July 11, 2014.
On August 1, 2014, Washington, through counsel, filed his second bankruptcy
protection proceeding. Although his formal EEO complaint was pending, he did not
disclose it as a contingent or unliquidated claim, or as an administrative proceeding to
which he was a party, as required. Washington’s bankruptcy was discharged on August
17, 2015, and the action was closed on August 24, 2015.
Washington received a 41-page Final Agency Decision from DOL on November 13,
2015, addressing his claims of race discrimination and hostile work environment, and
finding his complaint to be without merit.
On February 8, 2016, Washington filed this action against Thomas E. Perez
(“Perez”), Secretary of DOL, and Clarence H. Wood (“Wood”), Washington’s immediate
supervisor, who is also African-American. Washington alleges race discrimination, several
counts of retaliation, hostile work environment, intentional infliction of emotional distress,
and breach of contract, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”); the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Nebraska Fair
Employment Practice Act, Neb. Rev. Stat. § 48-1101 et seq. (“NFEPA”); state common
law; and a collective bargaining agreement (“CBA”) between DOL and the National Council
of Field Labor Locals, AFGE, AFL-CIO. (Complaint, Filing No. 1.) He seeks declaratory
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and injunctive relief, and compensatory and punitive damages. (Id. at 19-20.)
The Defendants do not take issue with the factual allegations in Washington’s
Complaint at this stage of the proceedings, and those allegations are accepted as true for
purposes of the pending Motion. The great bulk of Washington’s allegations concern petty
slights and aggravations he contends he suffered under the supervision of Wood and an
earlier supervisor, Bruce E. Timberlake, who–like Washington and Wood–is AfricanAmerican. Washington also lists many examples of mismanagement and unprofessional
conduct on the part of his supervisors and co-workers, concluding that “DOL is not the
model workplace.” (Id. ¶ 29.) He alleges that he has become severely depressed and
suicidal, and is undergoing psychiatric treatment, as a result of the Defendants’ conduct.
(Id. ¶¶ 63-65.)
Liberally construing the Complaint, only two of Washington’s allegations describe
adverse employment actions. First, he contends he was eligible for a promotion on March
24, 2014, but a co-worker who is not a member of a protected class was promoted instead,
due to Wood’s heightened scrutiny of Washington’s work, negative evaluations, and the
limited opportunities Wood gave Washington to gain needed experience. (Id. ¶ 15.)
Washington suggests that the Defendants’ failure to promote him was race-based
discrimination, and retaliation for his complaints of discrimination. (Id. ¶¶ 33-38, 40-45.)
Second, Washington contends he was suspended from work without pay for seven days
following Wood’s investigation of a co-worker’s allegation that Washington came to work
with alcohol on his breath on August 22, 2014. (Id. ¶ 23.) Washington suggests this action
was taken in retaliation for his earlier allegations of race discrimination. (Id. ¶¶ 47, 48.)

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STANDARDS OF REVIEW
Fed. R. Civ. P. 12(b)(6)
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[A]lthough a complaint need not
include detailed factual allegations, ‘a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.’” C.N. v. Willmar Pub. Sch., Indep. Sch.
Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “Instead, the complaint must set forth ‘enough facts to state
a claim to relief that is plausible on its face.’” Id. at 630 (citing 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.'” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). “'Courts must accept . . . specific factual
allegations as true but are not required to accept . . . legal conclusions.” Outdoor Cent.,
Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v.
Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010)). “A pleading that merely pleads ‘labels
and conclusions,’ or a ‘formulaic recitation’ of the elements of a cause of action, or ‘naked
assertions’ devoid of factual enhancement will not suffice.” Hamilton v. Palm, 621 F.3d
816, 817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The complaint’s factual
allegations must be “sufficient to ‘raise a right to relief above the speculative level.’”
Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011) (quoting Parhurst v. Tabor, 569 F.3d
861, 865 (8th Cir. 2009)).
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When ruling on a defendant's motion to dismiss, a judge must rule “on the
assumption that all the allegations in the complaint are true,” and “a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 555 & 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint, however, must
still “include sufficient factual allegations to provide the grounds on which the claim rests.”
Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009).
“Two working principles underlie . . . Twombly. First, the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 555). “Second, only a complaint that states a plausible claim for relief survives a motion
to dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556). “Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id.
Fed. R. Civ. P. 56
In the context of a summary judgment motion, the Court’s function is to consider the
evidence in the light most favorable to the nonmoving party, drawing all reasonable
inferences in the nonmoving party’s favor, and to determine whether the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Blakely v. Schlumberger
Tech. Corp., 648 F.3d 921, 933 (8th Cir. 2011). The proponent of a motion for summary
judgment has the initial burden of stating the basis for its motion and identifying, “particular
parts of materials in the record, including depositions, documents, electronically stored
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information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers,
or other materials” to show the absence of a genuine dispute as to material facts. Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the
nonmoving party's burden is to identify with specific facts showing that there is a genuine
issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). A “genuine” issue of material fact is more than “some metaphysical doubt as to the
material facts.” Id.
A separate summary judgment standard does not exist for employment
discrimination cases. Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.), cert.
denied, 132 S. Ct. 513 (2011). In the employment discrimination context, summary
judgment remains a “useful pretrial tool to determine whether any case, including one
alleging discrimination, merits a trial.” Id.
DISCUSSION
Elements of the Causes of Action
Without direct evidence of discrimination, a plaintiff in a Title VII action asserting
race discrimination must establish a prima facie case by showing that he “(1) is a member
of a protected class, (2) was qualified, (3) suffered an adverse employment action, and (4)
can provide facts that give rise to an inference of unlawful . . . discrimination” on the basis
of a protected class status, i.e., race. Robinson v. Am. Red Cross, 753 F.3d 749, 754 (8th
Cir. 2014). To establish a prima facie case of retaliation under Title VII, a plaintiff must
show “(1) that he or she engaged in statutorily protected activity; (2) an adverse
employment action was taken against him or her; and (3) a causal connection exists
between the two events.” Gilooly v. Mo. Dep't of Health & Senior Servs., 421 F.3d 734, 739
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(8th Cir. 2005). “An adverse employment action is a tangible change in working conditions
that produces a material employment disadvantage.” Buboltz v. Residential Advantages,
Inc., 523 F.3d 864, 868 (8th Cir. 2008). A claim of discrimination under 42 U.S.C. § 1981
is subject to “essentially the same” discrimination analysis as Title VII disparate-treatment
claims. Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986). Similar to Title VII,
NFEPA prohibits employers from taking adverse action against individuals “because of
such individual's race, color, religion, sex, disability, marital status, or national origin.” Neb.
Rev. Stat. § 48–1104(1). NFEPA “is patterned after Title VII,” and “it is appropriate to
consider federal court decisions construing the federal legislation” when considering
questions under NFEPA. City of Fort Calhoun v. Collins, 500 N.W.2d 822, 825 (Neb.
1993); see also Orr v. Wal–Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002).
To establish a claim of harassment or hostile work environment, a plaintiff must
show: “(1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to
unwelcome harassment; (3) a causal nexus exists between the harassment and the
plaintiff's protected group status; and (4) the harassment affected a term, condition, or
privilege of employment.” Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194–95 (8th
Cir. 2006). “[P]etty slights, minor annoyances, and simple lack of good manners” do not
constitute a hostile work environment, nor will they support a claim of discrimination or
retaliation. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).
To establish a claim based on intentional infliction of emotional distress, a plaintiff
must show: “(1) intentional or reckless conduct (2) that was so outrageous in character and
so extreme in degree as to go beyond all possible bounds of decency and is to be
regarded as atrocious and utterly intolerable in a civilized community and (3) that the
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conduct caused emotional distress so severe that no reasonable person should be
expected to endure it.” Roth v. Wiese, 716 N.W.2d 419, 431 (Neb. 2006) (citing Brandon
v. County of Richardson, 624 N.W.2d 604 (Neb. 2001)).
“Under Nebraska law, to recover for breach of express contract, ‘the plaintiff must
plead and prove the existence of a promise, its breach, damage, and compliance with any
conditions precedent that activate the defendant's duty.’” 168th and Dodge, LP v. Rave
Reviews Cinema, LLC, 501 F.3d 945, 950 (8th Cir. 2007) (quoting Phipps v. Skyview
Farms, Inc., 610 N.W.2d 723, 730 (Neb. 2000)).
Judicial Estoppel
Washington’s Complaint fails to state a plausible claim based on hostile work
environment, intentional infliction of emotional distress, or breach of contract. As noted
above, the only plausible race-discrimination or retaliation claims he presents are those
related to the March 24, 2014, failure-to-promote, and the August 2014 suspension. Wood
is not a proper party Defendant with respect to such claims, and they must be dismissed
as to Wood. See 42 U.S.C. § 2000e-16(c); Schoffstall v. Henderson, 223 F.3d 818, 821
n. 2 (8th Cir. 2000) (stating that “supervisors may not be held individually liable under Title
VII”) (citing Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997)).
With respect to the plausible claims, the only proper Defendant is Perez, who
argues that the claims must be dismissed based on principles of judicial estoppel. Perez
relies on Eighth Circuit precedent in factually similar cases where a plaintiff failed to
disclose discrimination or retaliation claims in bankruptcy proceedings. See Van Horn v.
Martin, 812 F.3d 1180, 1182 (8th Cir. 2016) (stating that a “debtor who had not disclosed
an employment discrimination lawsuit arising during the pendency of his bankruptcy
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proceedings was judicially estopped from pursuing his claims”) (citing Jones v. Bob Evans
Farms, Inc., 811 F.3d 1030, 1032-33 (8th Cir. 2016)). See also EEOC v. CRST Van
Expedited, Inc., 679 F.3d 657, 679-81 (8th Cir. 2012) (concluding that the district court did
not abuse its discretion by applying judicial estoppel to preclude employees from pursuing
Title VII claims against employer in light of their failure to disclose those claims in
bankruptcy proceedings).
Here, all three factors suggesting the application of judicial estoppel apply: (1)
Washington’s claims of discrimination and retaliation presented in this action are clearly
inconsistent with the previous position he asserted in his bankruptcy proceedings; (2) he
succeeded in persuading the bankruptcy court to accept his position that he had no
contingent or unliquidated claims of any nature, nor any administrative proceedings to
which he was a party within one year preceding the filing of his bankruptcy action; and (3)
he would derive an unfair advantage by pursuing his claims if not estopped. See Van Horn,
812 F.3d at 1182 (citing Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir. 2006),
and New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting 18 Moore's Federal
Practice § 134.30, p. 134–62 (3d ed.2000))). This Court concludes that judicial estoppel
precludes Washington from pursuing his potentially cognizable claims of race
discrimination and retaliation, and summary judgment will be granted in favor of Perez with
respect to such claims.1

1

While the Defendants’ position that the Court may take judicial notice of the bankruptcy proceedings is welltaken, the Court will treat the Motion as one for Summary Judgment with respect to the claims that are
potentially cognizable on the face of the Complaint. See Fed. R. Civ. P. 12(d). All parties have had an
opportunity to present all material pertinent to the Motion, and the Court has considered the Indexes of
Evidence presented by the Plaintiff (Filing No. 25) and the Defendants (Filing No. 16).

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Motion to Amend
Washington has moved for leave to file an Amended Complaint. (Filing No. 26.)
The Court has reviewed the proposed First Amended Complaint (Filing No. 25 at 115-136)
and concludes the amendment would be futile. Accordingly, the Motion for Leave to
Amend will be denied.

IT IS ORDERED:
1. The Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment (Filing No. 14) is granted;
2. The Plaintiff’s Complaint (Filing No. 1) is dismissed, with prejudice;
3. The Plaintiff’s Motions for Leave to Amend (Filing Nos. 23 and 26) are denied;
and
4. A separate Judgment will be entered.
.

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DATED this 14th day of July, 2016.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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