McGunagle v. Mayorkas ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DENIS MCGUNAGLE,
Plaintiff,
v.
Civil Action No. 22-0126 (CKK)
ALEJANDRO MAYORKAS, in his official
capacity as Secretary of Homeland Security,
Defendant.
MEMORANDUM OPINION
(February 1, 2023)
This reverse sex-discrimination case is before the Court on Defendant’s [10] Motion to
Dismiss. Defendant argues that Plaintiff has failed to state a claim for a hostile work environment
or discrete sex discrimination and that, even if he had, his hostile work environment claim is time-
barred. The Court agrees. Accordingly, and upon consideration of the pleadings, the relevant
legal authorities, and the record as a whole, 1 the Court shall GRANT Defendant’s [10] Motion to
Dismiss and DISMISS Plaintiff’s [1] Complaint for failure to state a claim.
I. BACKGROUND
For the purposes of the present Motion, the Court accepts as true all 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.
1
This Memorandum focuses on the following briefing and evidence submitted by the parties:
• Plaintiff’s Complaint., ECF No. 1 (“Compl.”);
• Defendant’s Memorandum in Support of Motion to Dismiss, ECF No. 10-1 (“Mot.”);
• Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion
to Dismiss, ECF No. 13 (“Opp.”); and
• Defendant’s Reply to Plaintiff’s Opposition to Motion to Dismiss, ECF No. 18 (“Repl.”).
In an exercise of its discretion, the Court concludes that oral argument would not be of assistance
in the resolution of this matter.
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on Foreign Inv. in U.S., 758 F.3d 196, 315 (D.C. Cir. 2014). That said, because Plaintiff is
proceeding pro se, the Court “liberally construe[s]” his pleadings. Williams v. Bank of N.Y.
Mellon, 169 F. Supp. 3d 119, 124 (D.D.C. 2016). The Court sets out only those allegations
necessary for the resolution of the pending Motion.
Broadly, Plaintiff, a White man, alleges that his female coworkers and supervisors in the
leadership of the Office of the Inspector General (“OIG”) of the Department of Homeland Security
(“DHS”) engaged in a campaign to humiliate, punish, and attempt to fire Plaintiff because of his
sex. Compl. ¶¶ 17-21. This campaign allegedly began in 2018 while Plaintiff served as Deputy
Assistant Inspector General. See id. ¶¶ 40-44. At that time, Plaintiff reported to a male Assistant
Inspector General. Id. ¶ 25. Shortly before his supervisor’s retirement, his supervisor gave
Plaintiff a glowing performance review and suggested that Plaintiff was likely to succeed him. Id.
Instead, Plaintiff implies that Jennifer Costello (“Costello”), then the Chief Operating Office of
OIG, secured the appointment of a female candidate because of that candidate’s sex. Id. ¶ 39.
From then on, the Complaint alleges that Costello waged a campaign with fellow female
leadership to remove or reassign male employees within OIG leadership which, according to the
Complaint, was subsequently corroborated by an internal investigation conducted by the law firm
of WilmerHale. Id. ¶¶ 49-50. As to Plaintiff specifically, the Complaint alleges approximately
nine instances of hostile and/or discriminatory actions taken by Costello’s group against Plaintiff:
(1) pretextual, poor performance appraisals, id. ¶¶ 66, 76-78; (2) briefly barring Plaintiff from the
workplace, id. ¶¶ 52-53; (3) some sort of internal investigation centered on Plaintiff, id. ¶ 58; (4)
being placed on administrative leave, id. ¶ 52; (5) reassigning Plaintiff from his position to a more
junior role, id. ¶ 72; (6) depriving Plaintiff of work assignments for several months, id. ¶ 91; (7)
limiting plaintiff’s work to his least favorite tasks, see id. ¶¶ 88-91; (8) moving Plaintiff’s
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workstation to a more remote part of the office, id. ¶ 85; and (9) where one of Costello’s associates
referenced her habit of carrying a firearm concealed in her purse, ¶ 86, which Plaintiff construes
as an implied threat of violence. 2 This ninth incident occurred on September 24, 2019.
After this incident, a newly appointed (and Senate-confirmed) Inspector General
“commissioned the law firm WilmerHale to conduct a $1.3 million investigation into [Costello’s]
misconduct, resulting in the removal of Costello” and others. Id. ¶ 19. Nevertheless, in an August
26, 2019 meeting, this male Inspector General insisted on making permanent a demotion of
Plaintiff purportedly engineered by Costello and her associates. Id. ¶ 80. That demotion was
finally effected by a male supervisor on June 5, 2020. Id. ¶ 89. Three days after, Plaintiff initiated
an informal administrative complaint with a DHS EEO officer, asserting discrimination on the
basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Id.
¶ 6.
For background purposes only, the Court briefly takes judicial notice of the WilmerHale
internal investigation report as a partially public government record, Plaintiff having incorporated
the report by reference into his complaint. Two conclusions are germane here. First, the report
concluded that Costello engineered, caused, or furthered circumstances leading OIG to be “beset
by employees’ accusations of misconduct and retaliation, frequent internal investigations of OIG
personnel, and complaints and counter-complaints filed with” a number of DHS offices and
Congress. WilmerHale, Report of Independent Investigation: Allegations of Misconduct by
[Jennifer Costello, Diana Shaw, and Michele Kennedy] (Dec. 14, 2020), at 1 available at
https://cdn.govexec.com/media/gbc/docs/pdfs_edit/012721cb2.pdf (last accessed January 30,
2
Defendant in his reply characterizes Plaintiff’s complaint as advancing eleven instances of
conduct. The Court concludes that there is more conceptual overlap than Defendant suggests.
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2023 3:01 PM). Second, the report concluded that the “motive for [Costello’s] actions appears to
have been a desire to further her own professional ambitions and those of her allies . . . while
diminishing the professional opportunities of those whom she disliked and/or viewed as disloyal.”
Id. That said, the report “did not find any evidence that [Costello’s] conduct was motivated by a
discriminatory intent.” 3 Id. at 58 n.677.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint that “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)). The factual allegations in a complaint, if accepted as true, must be
sufficient to “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.
III. DISCUSSION
A. Discrete Discrimination Claim
Although Plaintiff’s Complaint advances only a claim of a hostile work environment
predicated on sex discrimination, Plaintiff insists that his complaint should instead be read to
plead, in the alternative, a discrimination claim predicated solely on his formal demotion on June
8, 2023. Opp. at 27. Even construing the Complaint in such a way, the claim still fails. To
3
Needless to say, this finding, such as it is, is entitled to no preclusive effect and little (if any)
deference.
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prevail on a discrimination claim at this stage, Plaintiff must plausibly plead facts showing that
he “suffered an adverse employment action [] because of [his] . . . sex.” See Brady v. Office of
Sergeant of Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). Because Plaintiff is not a member of a
protected group (i.e., he is not alleging sex discrimination as a woman), he must plead additional
“particularized” facts that “suggest some reason why an employer might discriminate against
[him]” as a White male. See Bishopp v. District of Columbia, 788 F.2d 781, 786 (D.C. Cir.
1986).
As pled, the Complaint does not support an inference that OIG leadership on June 8,
2020 made his demotion permanent because he is a man. His demotion was made permanent by
a male subordinate of the new male Inspector General. Compl. ¶ 89. That male Inspector
General, upon seeing substantial misfeasance by certain female members of OIG leadership, then
caused those female employees to be dismissed or reassigned because of that misfeasance. Id. ¶
19. It simply does not follow that these two male supervisors would take an adverse action
against Plaintiff when they had just previously taken adverse action against those female
supervisors whom Plaintiff accuses of anti-male discrimination. As such, there is simply no
plausible inference on these facts that Plaintiff was demoted because he is a man. See Doe v.
Princeton Univ., 30 F.4th 335, 344 (3d Cir. 2022).
B. Hostile Work Environment
Because Plaintiff’s discrete discrimination claim fails, his claim of a hostile work
environment is not timely. As Plaintiff acknowledges in his opposition, a Title VII claim must
first be administratively exhausted before filing an action in federal district court. See Oviedo v.
Washington Metro. Area Transit Auth., 948 F.3d 386, 393 (D.C. Cir. 2020); see also 42 U.S.C. §
2000(e)-16(c). “An employee of the federal government who believes that [he] has been the
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subject of unlawful discrimination must ‘initiate contact’ with an EEO Counselor in h[is] agency
‘within 45 days of the matter alleged to be discriminatory.’” Steele v. Schafer, 535 F.3d 689, 693
(D.C. Cir. 2008) (quoting 29 C.F.R. § 1614.105(a)(1)). 4 Because Plaintiff initiated contact with
the applicable EEO officer on June 8, 2020, his claim is timely only if he can point to some
discriminatory act on or after April 24, 2020 that was part of the allegedly hostile work
environment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 103 (2002). Plaintiff
has pled only his final demotion ordered by the male Inspector General and instituted by the
Inspector General’s male subordinate.
To plead such a claim, Plaintiff must state facts demonstrating that: (1) he was subject to
“unwelcome harassment,” (2) the harassment occurred because he is a man, (3) the harassment
“was severe to a degree which affected a term, condition, or privilege of employment;” and (4)
DHS “knew or should have known about the harassment, but nonetheless failed to take steps to
prevent it.” Outlaw v. Johnson, 49 F. Supp. 3d 88, 91 (D.D.C. 2014). To link his demotion to
prior instances of purported harassment, he must plausibly allege that it was similar to the prior
instances of discriminatory actions, those actions were frequent, and those actions were
“‘perpetrated by the same managers.’” Baird v. Gotbaum, 88 F. Supp. 2d 63, 70 (D.D.C. 2012)
(quoting Morgan, 536 at 121) aff’d 792 F.3d 166 (D.C. Cir. 2016).
For the same reasons, the Court cannot plausibly infer that Plaintiff’s demotion was part
of the same alleged harassment campaign. Importantly, his demotion involved entirely different
managers. More critically, however, these managers acted against the very same work
environment Plaintiff deems hostile. It does not follow that these two male managers were at all
4
Since Steele, the applicable regulation has not been amended in any relevant part. See 74 Fed.
Reg. 63984, 63985 (Dec. 7, 2009).
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interested in continuing any lingering anti-male animus. The demotion, therefore, breaks the
discriminatory chain, rendering Plaintiff’s claim of a hostile work environment untimely.
Because this claim is untimely, the Court does not reach its merits.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s [10] Motion to Dismiss and
DISMISSES Plaintiff’s [1] Complaint for failure to state a claim. An appropriate order
accompanies this Memorandum Opinion.
Date: February 1, 2023
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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