Wilson v. Wolf ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
KENNETH DURONN WILSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-0100 (ABJ)
)
CHAD F. WOLF, )
Acting Secretary Department )
of Homeland Security, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Kenneth Duronn Wilson, a former employee of the Federal Emergency
Management Administration (“FEMA”), has filed a six-count complaint against the head of the
Department of Homeland Security, 1 arising out of his employment as a reservist between 2011
and 2016. Complaint [Dkt. # 1] (“Compl.”). Plaintiff brought claims under Title VII,
42 U.S.C. § 2000e, and under the Civil Rights Act provisions, 42 U.S.C. §§ 1981 and 1983,
alleging that he was subjected to racial and gender discrimination, retaliation, and a hostile work
environment. He also brought a claim of retaliation under the False Claims Act (“FCA”),
31 U.S.C. § 3730(h), and conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3).
Compl. ¶¶ 66–103.
1 Plaintiff originally sued Kevin K. McAleenan, who was at that time the Acting Secretary
of Homeland Security, and Chad F. Wolf was later automatically substituted as a defendant under
Federal Rule of Civil Procedure 25(d). Wolf has since stepped down, and the docket has not yet
caught up with the changes in personnel.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant has filed a partial motion
to dismiss those portions of the race discrimination claim in Count One and the retaliation claim
in Count Three that are predicated on section 1983; that portion of the gender discrimination claim
in Count Two that is predicated on section 1981; and Counts Four (retaliation in violation of the
False Claims Act); Five (hostile work environment), and Six (section 1985 conspiracy).
Def.’s Mot. to Dismiss in Part & Mem. in Supp. of Mot. [Dkt. # 10] (“Def.’s Mot.”). Plaintiff,
who is represented by counsel, filed a timely opposition, but he did not address the objections to
claims based on sections 1981, 1983, or 1985. See Pl.’s Mem. in Opp. to Def.’s Mot. [Dkt. # 13-1]
(“Pl.’s Opp.”). Upon consideration of the entire record in this case and the parties’ submissions, 2
the Court will grant defendant’s motion.
BACKGROUND
Plaintiff is an African-American male who was employed by FEMA intermittently between
2006 and 2016. Compl. ¶¶ 12–60. He served as a reservist who could be deployed to disaster
locations for temporary assignments. Id. ¶ 12. Plaintiff worked in the Office of Field Operations
(“OFO”), id. ¶ 13, and his supervisory team included Timothy Henggeler, Jeffery Cole,
Tom Szmyr, Dan Paton, Pete Connolly, Laura Swedlow, John Alonso, and Gary Butkus. Id. ¶ 14;
Pl.’s Opp. at 2. He was terminated in 2016. Compl. ¶ 60.
According to the complaint, plaintiff was sent to New York in the aftermath of Hurricane
Irene in August 2011, Compl. ¶¶ 12–13, and he alleges that he was scheduled to demobilize from
2 See Ex. A to Compl. [Dkt. # 1-1] (“November 2019 DHS Final Order”); Pl.’s Resp. in Opp.
to Def.’s Mot. to Dismiss in Part [Dkt. # 13] (“Pl.’s Resp.”); Def.’s Reply Mem. in Supp. of Mot.
[Dkt. # 14] (“Def.’s Reply”).
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that assignment on February 24, 2012. Id. ¶ 25. The complaint raises a series of concerns based
on how he was treated during that time period and thereafter.
October 2011 Reassignment
Plaintiff states that he was re-assigned from the Long Island, New York OFO to the
Birmingham, New York OFO in October 2011, and he alleges that the action was motivated by
race discrimination. Compl. ¶¶ 18–19. Timothy Henngeler’s stated reason was to save FEMA
money on travel expenses, id. ¶ 18, and plaintiff was replaced in the Long Island OFO with
Paul Swindells. 3 Plaintiff submits that the replacement was part of a larger scheme on the part of
John Alonso, a Hispanic and African-American male, and Laura Swedlow, a white female, to
enable Swindells to accrue travel benefits to which he was not entitled since he lived less than fifty
miles from the site. Id. ¶ 20.
In November 2011, plaintiff contacted the Equal Rights Office of the Department of
Homeland Security (“DHS ERO”) to lodge a complaint that his reassignment was discriminatory
and was part of a fraudulent scheme, and an ERO counselor interviewed him that same month.
Compl. ¶ 20. Jeffrey Cole and Henggeler were interviewed in December 2011, and Alonso was
interviewed in January 2012. Id. ¶ 21.
January 2012 Demotion
Plaintiff also states that in January 2012, he was demoted from the position of “Manager”
to “Specialist Trainee.” Compl. ¶ 22. He alleges this “reassign[ment] . . . virtually denied [him]
the ability to secure deployments” and “adversely affected [his] deployment opportunities for two
and a half years,” until he was re-hired by FEMA for a four-year appointment in June 2014. Id.3 Plaintiff does not specify Swindells’s race.
3
According to the complaint, plaintiff filed an Individual Complaint of Employment
Discrimination (agency case number: HS-FEMA-21715-2012) with the DHS ERO on or about
January 20, 2012, incorporating his allegations that his October 2011 reassignment was
discriminatory and accusing Alonso of orchestrating the travel status scheme with plaintiff’s
replacement, Swindells. Compl. ¶ 23.
February 2012 Demobilization
On February 10, 2012, plaintiff was told that his position in the Birmingham OFO would
be eliminated as part of a twenty-percent cut in the New York disaster workforce. Compl. ¶ 24.
Plaintiff asked Henggeler if his previous Long Island OFO position, now held by Swindells, was
also being cut, and he was informed that it was not. Id. ¶ 25. Gary Butkus asked plaintiff to leave
the Birmingham OFO ahead of his February 24, 2012 demobilization date, and plaintiff reported
to his ERO representative that he believed this request was in retaliation for his initial complaint.
Id. ¶ 27.
In March 2012, plaintiff updated his January 2012 complaint with the DHS ERO to include
claims of discrimination, retaliation, and waste, fraud, and abuse. Compl. ¶ 28. Plaintiff asserts
that the January 2012 demotion and February 2012 early demobilization prevented him from
finding work for two years and had an adverse effect on his finances, family life, and mental and
physical health. Id. ¶ 30.
May 2014 Revocation of Employment Offer
In April 2014, plaintiff applied for an Incident Management Assistant Team (“IMAT”)
position with FEMA and had a final interview on May 5, 2014. Compl. ¶ 31. Plaintiff alleges that
he was offered the job that evening over the phone, but the offer was rescinded an hour later by
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“letter.” Id. ¶ 32. Plaintiff believes that his employment offer was revoked due to the intervention
of Dan Paton, who had recently become the “Logistics Section Chief for IMAT East.” Id. ¶ 34.
May 2016 Termination
Shortly thereafter, though, plaintiff was hired in June 2014 for a four year term as an
“IMAT Support Branch Director II” in Missouri. Compl. ¶ 35. According to plaintiff, he received
an “exceed expectations” performance review in April 2015, during which time he was supervised
by Ralph Meyers and DuWayne Tewes, both white males. Id. ¶¶ 36, 40. However, plaintiff alleges
that between April 2015 and May 2016, he was:
• denied the option of teleworking, id. ¶ 39;
• “forced to sit at the same table as Mr. Paton” during an IMAT training exercise,
id. ¶ 41;
• issued a formal letter of reprimand (“LOR”) for “failure to follow instructions and
lack of candor,” id. ¶ 43;
• denied the use of a purchase card and the ability to sign off on his direct reports’
expenses, id. ¶¶ 47, 54, 58;
• given an “unsatisfactory” performance rating in February 2016, id. ¶ 53;
• called “lazy” and repeatedly denied training opportunities, id. ¶¶ 51, 57;
• ordered to demobilize on April 1, 2016, id. ¶ 55; and
• terminated from employment on May 20, 2016. Id. ¶ 60.
In July 2015, plaintiff informed DHS ERO of his contentions that the telework denial was
discriminatory, and that the issuance of the LOR was retaliatory. Compl. ¶ 44. Plaintiff
formalized these allegations in September 2015, and he lodged a second complaint with the
DHS ERO (agency case number: HS-FEMA-24518-2015). Id. ¶ 46.
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PROCEDURAL HISTORY
Plaintiff’s two complaints before the DHS ERO were consolidated before an Equal
Employment Opportunity Commission (“EEOC”) Administrative Judge (“AJ”). As the
DHS Office for Civil Rights and Civil Liberties (“CRCL”) later reported in the November 2019
decision appended to plaintiff’s complaint: on August 14, 2018, the AJ dismissed both of
plaintiff’s cases (HS-FEMA-21715-2012 and HS-FEMA-24518-2015) without prejudice and
ordered DHS to complete the investigation; on March 8, 2019, the AJ issued another dismissal
without prejudice and instructed plaintiff of his right to refile no later than June 14, 2019; and,
since plaintiff took no further action, the AJ dismissed plaintiff’s hearing request for failure to
prosecute pursuant to 29 C.F.R. § 1614.107(7) on September 29, 2019. See November 2019 DHS
Final Order at 2. Based on the AJ’s findings, the CRCL found that plaintiff had failed to prosecute
his case, and it fully implemented the AJ’s decision to dismiss the claims with prejudice. Id. at 4.
Based on all of these events, plaintiff filed this lawsuit seeking the wages he lost during
periods of unemployment and under-employment, damages for the alleged associated deterioration
in his mental and physical health, and injury to his reputation. Compl. ¶ 104. The 2019 complaint
included six counts:
Count One: race discrimination claims founded upon Title VII and 42 U.S.C. §§ 1981 and
1983;
Count Two: sex and gender discrimination based on Title VII and 42 U.S.C. §§ 1981 and
1983;
Count Three: retaliation in violation of Title VII and 42 U.S.C. §§ 1981 and 1983;
Count Four: retaliation in violation of the False Claims Act, 31 U.S.C. § 3730(h);
Count Five: hostile work environment claim based on Title VII and 42 U.S.C. §§ 1981and 1983; and
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Count Six: conspiracy to deprive plaintiff of his civil rights in violation of 42 U.S.C.
§ 1985(3).
Compl. ¶¶ 66–103.
Defendant has moved to dismiss those portions of Counts One and Three that are
predicated on section 1983, Count Two insofar as it is based on section 1981, and Counts Four,
Five and Six in their entirety. See Def.’s Mot. at 1, 4. What would remain would be the allegations
of race discrimination and retaliation in Counts One and Three that are founded on Title VII.
LEGAL STANDARD
In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
When considering a motion to dismiss under Rule 12(b)(6), the Court must construe a
complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979). That said, the Court is not required to accept inferences drawn by the plaintiff if
those inferences are unsupported by facts alleged in the complaint, nor must the Court accept
plaintiff’s legal conclusions. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”); Kowal, 16 F.3d at 1276;
see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider
only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference
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in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v.
Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
I. Section 1983 Claims included in Counts One and Three
Count One purports to base claims for racial discrimination on both Title VII and
42 U.S.C. § 1983, and Count Three advances retaliation claims on both theories. The government
moves to dismiss those portions of the claims based on section 1983 because the complaint
involves conduct by federal actors – FEMA employees, plaintiff’s supervisors – acting under color
of federal law. Def.’s Mot. at 6–7. While plaintiff did not respond to this aspect of the motion to
dismiss, and under the Local Rules of this court those objections could be deemed to be conceded, 4
it is clear from the plain language of the statute that section 1983 does not apply to federal officials.
42 U.S.C. § 1983 (“Every person who, under color of any statute, regulation, custom or usage, of
any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any
rights . . . secured by the Constitution . . . shall be liable to the party injured . . . .”); see Settles v.
United States Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005) (“To recover under [section]
4 “Within 14 days of the date of service [of a party's motion] or at such other time as the
Court may direct, an opposing party shall serve and file a memorandum of points and authorities
in opposition to the motion. If such a memorandum is not filed within the prescribed time, the
Court may treat the motion as conceded.” LCvR 7(b). But see Wash. Alliance of Tech. Workers
v. United States, 892 F.3d 332, 344–45 (D.C. Cir. 2018) (finding that district court abused its
discretion in dismissing a complaint under Local Rule 7(b) when the plaintiff timely filed an
opposition and “rest[ed] on its complaint in the face of a motion to dismiss”); Coulston v. Wash.
Metro Area Transit Auth., Civ. Action No. 19-2060, 2020 WL 1236563, *5 n.2 (“[T]he D.C.
Circuit recently cast doubt on whether failing to oppose an argument is, alone, enough to warrant
dismissal. Wash. Alliance, 892 F.3d at 345. Because the Court agrees with Defendants, it need
not decide whether Plaintiffs’ failure to respond is dispositive.”).
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1983, the plaintiff must show that the defendant was acting ‘under color’ of state law. Section
1983 does not apply to federal officials acting under color of federal law.”) (citations omitted).
Therefore, those portions of Counts One and Three based on section 1983 will be dismissed for
failure to state a claim.
II. Section 1981 Claims included in Count Two
Count Two alleges discrimination based on plaintiff’s “sex or gender as a male,” and it too
is based on both Title VII and a section of the Civil Rights Act aimed at the conduct of state
officials. The invocation of section 1981 is problematical for that reason, and for the additional
reason that section 1981 addresses only discrimination based on race, and not gender.
See 42 U.S.C. § 1981; see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 n.1 (D.C. Cir. 2013)
(“Section 1981 covers discrimination on the basis of race.”). Plaintiff did not offer any argument
in opposition to defendant’s motion to dismiss the portion of Count Two based on section 1981,
and it will be dismissed.
III. Count Four: False Claims Act Retaliation
Count Four alleges retaliation in violation of the False Claims Act, and defendant moves
to dismiss it as untimely. See Def.’s Mot. at 7–8; Def.’s Reply at 1–5. Under the statute of
limitations in the False Claims Act as amended, a civil action for retaliation against a whistleblower
must be brought within three years. 31 U.S.C. § 3730(h)(3) (“A civil action under this subsection
may not be brought more than 3 years after the date when the retaliation occurred.”). Plaintiff was
terminated on May 20, 2016, and the complaint was filed on January 29, 2020, more than three
years and eight months later. Compl. ¶ 60.
Plaintiff does not dispute the fact that the limitations period has expired, but he argues that
the doctrine of equitable tolling would apply. See Pl.’s Opp. at 9–11. Equitable tolling is an
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“extraordinary” remedy, Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998),
and plaintiff bears the burden to show (1) that he pursued his judicial remedies “diligently,” and
(2) “that some extraordinary circumstance stood in his way and prevented timely filing.” Holland
v. Florida, 560 U.S. 631, 649 (2010); see also Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017)
(applying the Holland test in the context of allegations of race discrimination and retaliation claims
in the workplace). This is a “stringent test,” Commc’ns Vending Corp. of Ariz. v. FCC, 365 F.3d
1064, 1075 (D.C. Cir. 2004), and the application of the doctrine would be unwarranted in a
situation where a plaintiff has merely “failed to exercise due diligence in preserving his legal
rights.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
Plaintiff has not made the showing necessary for equitable tolling of the statute of
limitations in this case. Plaintiff states generally that he “timely filed [his complaints] with the
EEOC and pursued his case through various delays.” Pl.’s Opp. at 10. But the assertion that he
was diligent is not only inconsistent with the record of the EEO proceedings, see November 2019
DHS Final Order at 4, finding that the AJ “correctly dismissed [plaintiff’s] cases for failure to
prosecute,” it is beside the point. The filing of an administrative claim is insufficient to form the
basis for equitable tolling of the requirement to file a “civil action” within three years of the alleged
retaliation as required under the False Claims Act. See Niskey, 859 F.3d at 7; see also Poole v.
United States Gov’t Publ’g Office, 258 F. Supp. 3d 193, 199 (D.D.C. 2017).
Furthermore, while plaintiff offers “personal reasons” for the delay – his “mental health
condition during [that] time,” and his lack of financial resources and even housing for a period of
time, Pl.’s Opp. at 11 – he has not supplied sufficient information to support a finding that these
circumstances prevented him from securing legal assistance. Compare Niskey, 859 F.3d at 9
(noting that the EEO counselor failed to process the plaintiff’s claim and disregarded the obligation
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to inform the plaintiff of his procedural rights), with Thorne v. Shanahan, 2019 WL 3997440, *5–6
(D.D.C. Aug. 23, 2019) (finding no “good cause” existed to apply equitable tolling when the
agency made multiple attempts to contact the plaintiff to advance a formal EEO case).
Also, as defendant points out, see Def.’s Reply at 5, the complaint alleges that plaintiff
suffered from financial hardship and mental health issues between January 2012 and June 2014.
See Compl. ¶ 30. Plaintiff states that these circumstances rendered him unable to pursue legal
remedies, but that would not account for the entire three year limitations period after the allegedly
retaliatory acts, including the demotion on January 3, 2012, the demobilization on
February 24, 2012, or the revocation of the job offer in May 2014. See Compl. ¶ 88. And a review
of plaintiff’s own statements in the complaint reveals that during the period immediately after he
was rehired by FEMA in June of 2014, he was able to pursue his EEOC case, as well as carry out
the duties of his job. See Compl. ¶¶ 37–38, 40.
Most important, plaintiff chose to characterize Count Four as “a claim for retaliatory
discharge,” Compl. ¶ 84, and he would have had from May 20, 2016, to May 2019, to challenge
his termination under the False Claims Act. Since the record does not support a finding that
plaintiff diligently pursued his judicial remedies, or that he was impeded by extraordinary
circumstances during the limitations period, the doctrine of equitable tolling does not apply, and
the False Claims Act claim will be dismissed.
IV. Count Five: Hostile Work Environment
Plaintiff also alleges that he endured a hostile work environment during his time as FEMA
reservist due to his race. See Compl. ¶¶ 90–96. As noted above, to the extent that this employment
claim is also predicated on sections 1981 and 1983, those allegations will be dismissed.
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To determine whether a hostile work environment exists under Title VII, courts “look to
‘all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993);
see also Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). “Severity and
pervasiveness are complementary factors and often go hand-in-hand, but a hostile work
environment claim could be satisfied with one or the other.” Brooks v. Grundmann,
748 F.3d 1273, 1276 (D.C. Cir. 2014).
The Supreme Court has made clear that the conduct must be so extreme “to amount to a
change in the terms and conditions of employment.” Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998). This “ensure[s] that Title VII does not become a general civility code”
that would involve the courts in policing “the ordinary tribulations of the workplace.” Id.The allegedly harassing environment must be “both objectively and subjectively offensive [and]
one that a reasonable person would find hostile or abusive.” Id. at 787.
Plaintiff’s hostile work environment claim points to the following events:
“a ten-and-a-half-week IMAT training course” in 2014 at which Paton and Hernandez were
present, Compl. ¶ 37; a training exercise in the spring of 2015 where Paton sat beside plaintiff,
Compl. ¶¶ 38, 41; a denial of the ability to work remotely, Compl. ¶ 39; a letter of reprimand for
failure to follow directions, Compl. ¶ 43; a restriction on his use of a purchase card and travel
voucher approval as duties of his position, Compl. ¶¶ 47, 54; a remark made by DuWayne Tewes
to another employee in 2016 that plaintiff was “lazy,” Compl. ¶ 51; an unsatisfactory performance
rating in February 2016, Compl. ¶ 53; the denial of multiple coaching and training opportunities,
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Compl. ¶¶ 51, 57–59; and his demobilization and firing in 2016. Compl. ¶¶ 55, 60;
see also Pl.’s Opp. at 13.
Plaintiff’s list of grievances does not add up to allege the existence of a workplace
permeated by discriminatory animus. It does not include events of a racially discriminatory nature;
with only one possible exception, the allegedly offensive occurrences are devoid of any racial
content or connotation. Also, the chronology does not allege a pattern of events that are frequent,
and none appears to be “severe” in the sense of being physically threatening or psychologically
abusive. Being sent to training programs, deprived of opportunities for telework, or denied the use
of a credit card may have been frustrating, but these are ordinary workplace disputes that fall
outside the category of actionable harassment. Plaintiff may have resented being seated next to a
particular supervisor, but those two incidents add little to the calculus. See Akosile v. Armed
Forces Ret. Home, 938 F. Supp. 2d 76, 87 (D.D.C. 2013) (“Negative interactions with
supervisors . . . generally do not meet [the hostile work environment] standard.”) (internal
quotation omitted).
Plaintiff’s claims that his job responsibilities were curtailed and that he was criticized in
performance reviews are also insufficient, without more, to support a hostile work environment
claim. See Allen v. Napolitano, 774 F. Supp. 2d 186, 205 (D.D.C. 2011); see also Pearsall v.
Holder, 610 F. Supp. 2d 87, 98 n.10 (D.D.C. 2009) (finding that allegations of denial of training
and underutilization in a role did not support a hostile work environment claim); Hussain v.
Gutierrez, 593 F. Supp. 2d 1, 7 (D.D.C. 2008) (dismissing a hostile work environment claim based
on low performance ratings and downgrading of job responsibilities). Although plaintiff alleges
that he was denied some opportunities to train for roles outside his own at FEMA, this is not
discriminatory conduct on its face, and without more information, this allegation does not describe
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conduct that is sufficiently “severe” or “pervasive” to rise to the level of a hostile work
environment claim. See Nurriddin v. Bolden, 674 F. Supp. 2d 64, 93 (D.D.C. 2009).
Plaintiff describes the statement made by his “Second-Line Supervisor” DuWayne Tewes
to Equal Rights Advisor Jacquelyn Seymour that he was “lazy” as “a racial derogatory reference
and stereotyping of Plaintiff as an African American man.” Pl.’s Opp. at 14. Another court in this
district has observed that “[s]tatements regarding an individual’s personal appearance, work ethic
or personality, for instance, while containing no overt references to the individual’s race, can, in a
broader context, be plainly understood expressions of racial hostility.” Na’im v. Clinton,
626 F. Supp. 2d 63, 74 (D.D.C. 2009). So the allegation must be taken seriously.
But here the insult can only be viewed in isolation because plaintiff has not alleged any
other disparaging remarks. Therefore, even if one resolves all inferences in plaintiff’s favor as is
required at this stage, the remark constitutes, at worst, the “sporadic use of abusive language” that
standing alone is insufficient to state a hostile work environment claim as both the severity and
pervasiveness are absent. Faragher, 524 U.S. at 787; see Steward v. Evans,
275 F.3d 1126, 1134–35 (D.C. Cir. 2002) (use of profanity and abusive language directed at
an employee was inadequate when it was not “pervasive”); Nurriddin, 674 F. Supp. 2d at 93.
Plaintiff has included a few events in the list that are sufficiently adverse to warrant
examination under Title VII, such as his termination, but that coda to his career would not bear on
the prior existence of a hostile work environment. And along with the demobilization and
demotion that allegedly affected the terms and conditions of plaintiff’s employment, the
termination claim will move forward with Count One, and it will be up to plaintiff to prove that
those events were indeed motivated by discrimination as alleged. But Count Five of the complaint
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will be dismissed under Federal Rule 12(b)(6) for failure to allege sufficient facts to state a claim
for hostile work environment.
V. Count Six: Section 1985(3) claim for conspiracy
Finally, defendant moves to dismiss Count Six, which alleges that that the FEMA
employees conspired to deprive plaintiff of his civil rights and is predicated on 42 U.S.C. § 1985.
This claim also fails because it is based on the actions of federal employees and does not allege a
conspiracy of “two or more persons in any State or Territory.” 42 U.S.C. § 1985(3).
Moreover, even if the proper organization were involved, under the intracorporate
conspiracy doctrine, employees of the same governmental agency cannot conspire with one
another. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1868–69 (2017) (suggesting that “officials
employed by the same governmental department do not conspire when they speak to one another
and work together in their official capacities” for purposes of section 1985(3)). Therefore, the
Court will dismiss Count Six for failure to state a claim.
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CONCLUSION
For these reasons, the Court concludes that: the portions of Counts One and Three based
on section 1983; the portion of Count Two based on section 1981; Count Four, alleging retaliation
arising under the False Claims Act, 31 U.S.C. § 3730(h); Count Five, alleging a hostile work
environment under Title VII; and Count Six, alleging conspiracy under section 1985(3) will be
dismissed for failure to state a claim, and defendant’s motion to dismiss in part will be
GRANTED.
A separate Order will issue.
_______________________
AMY BERMAN JACKSON
United States District Judge
DATE: January 22, 2021
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