Outlaw v. Napolitano ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
BOBBY OUTLAW, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-934 (EGS)
)
JEH JOHNSON, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Plaintiff Bobby Outlaw brings this action against defendant
Jeh Johnson, the Secretary of the Department of Homeland
Security, alleging racial discrimination, retaliation, and the
creation of a hostile work environment, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Defendant moves to dismiss plaintiff’s retaliation and hostile-
work-environment claims. Upon consideration of the motion, the
response and reply thereto, the applicable law, and the entire
record, the Court GRANTS defendant’s motion to dismiss.
I. BACKGROUND
Plaintiff, an African-American, has been employed by the
United States Secret Service since 1996. Compl. ¶¶ 1, 12. He
alleges that he was hired at an initial grade of GS-7, while
Caucasians with less experience were hired at GS-9. Id. ¶ 16.
 By 2000, Mr. Outlaw had been promoted to a GS-13 position. Id.
¶ 14. In 2009 and 2010, he applied for twenty-seven different
GS-14 positions, as well as a GS-13 position based in South
Africa. See id. ¶¶ 18–19, 21. Although he claims that he was
highly qualified for these positions, he was not selected for
any of them. Id. ¶¶ 23, 42–46.1
Mr. Outlaw claims that he was not selected for discriminatory
reasons. See id. ¶¶ 15, 32, 45–46. Regarding the position in
South Africa, he claims that the official in charge of making
recommendations for filling the position—an African-American—
ranked Mr. Outlaw first, but the position was awarded to a less-
qualified Caucasian applicant. See id. ¶¶ 22–23. The officials
in charge of making recommendations for the GS-14 positions were
all Caucasian and Mr. Outlaw claims that their first choice was
always selected. See id. ¶¶ 24–25. Most of these positions were
filled by Caucasian applicants, all of whom were allegedly less
qualified than Mr. Outlaw. See id. ¶ 43. Mr. Outlaw also asserts
that the Secret Service’s promotion procedures and its
performance reviews are subjective. See id. ¶¶ 32–33.
On May 18, 2010, plaintiff filed an equal-employment-
opportunity complaint, alleging racial discrimination. See EEO
1
Plaintiff claims to have been denied one hundred GS-14
promotions since 2004. See Pl.’s Opp. to Mot. to Dismiss
(“Opp.”), ECF No. 12 at 4–5. Plaintiff, however, asserts that
the twenty-seven promotions discussed above are the only ones
“[a]t issue in this matter.” Id. at 5.
2
Complaint, ECF No. 10-5 at 3.2 On February 28, 2013, an
administrative judge found that Mr. Outlaw “failed to establish
a prima facie case of race discrimination” and that the
Department of Homeland Security had proffered legitimate, non-
discriminatory reasons for each of the challenged decisions. See
Decision, ECF No. 10-7 at 11–12. The Department of Homeland
Security issued a final order affirming those findings on March
26, 2013. See Final Order, ECF No. 10-8.
On June 20, 2013, Mr. Outlaw filed this lawsuit, alleging that
he was: (1) discriminated against on the basis of his race, (2)
retaliated against for engaging in protected activity, and (3)
subjected to a hostile work environment. See Compl. ¶¶ 47-94. On
January 10, 2014, defendant moved to dismiss or, in the
alternative, for summary judgment on the retaliation and
hostile-work-environment claims. See Def.’s Mot. to Dismiss
(“Mot.”), ECF No. 10. Plaintiff filed an opposition on February
18, 2014, in which he included a section entitled “Mr. Outlaw
Seeks Leave to Amend His Amended Complaint.” Opp. at 17.
Defendant filed a reply brief on March 20, 2014, and noted that
plaintiff neither submitted a proposed amended complaint nor a
2
Plaintiff’s equal-employment-opportunity complaint, the
administrative judge’s decision regarding that complaint, and
the Department of Homeland Security’s final order affirming that
ruling, were attached to defendant’s motion to dismiss and are
mentioned to provide background information.
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motion for leave to amend his complaint. See Def.’s Reply in
Supp. of Mot. to Dismiss (“Reply”), ECF No. 14 at 2–3.
On April 28, 2014, the Court entered an Order stating that it
could not consider plaintiff’s apparent request to amend his
complaint until he complied “with the requirements of Federal
Rules of Civil Procedure 7(b)(1) and 15(a) by filing a motion
for leave to amend his complaint” and “with Local Civil Rule
15.1” by submitting with his motion “‘an original of the
proposed pleading as amended.’” Minute Order of April 28, 2014.
The Court ordered Mr. Outlaw to “file his motion for leave to
file an amended complaint, along with a copy of his proposed
amended complaint, by no later than May 5, 2014.” Id. Plaintiff
did nothing until May 12, 2014, when he filed an Amended
Complaint without moving for leave. See Am. Compl., ECF No. 15.
On May 16, 2014, the Court struck the Amended Complaint without
prejudice. See Minute Order of May 16, 2014. Plaintiff did not
subsequently move for leave to amend. Defendant’s motion to
dismiss is therefore ripe for the Court’s decision.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
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defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quotation marks omitted). While detailed factual
allegations are not necessary, plaintiff must plead enough facts
to “raise a right to relief above the speculative level.” Id.
When ruling on a Rule 12(b)(6) motion, the Court may consider
“the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference 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).
The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.” Id. “[O]nly a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Recitals
of “the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
III. DISCUSSION
Plaintiff concedes that Count Two of his Complaint should be
dismissed. See Opp. at 9. Accordingly, all that remains before
the Court is defendant’s argument that Count Three, plaintiff’s
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hostile-work-environment claim, should be dismissed for failure
to exhaust administrative remedies and failure to state a claim.
Because plaintiff failed to state a claim, the Court need not
address whether he exhausted his administrative remedies.
To bring an actionable hostile-work-environment claim, Mr.
Outlaw must establish that “the workplace is permeated with
discriminatory intimidation, ridicule and insult that is
sufficiently severe and pervasive to alter the conditions of
[his] employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation
marks and citations omitted). He must therefore establish that
“(1) he . . . is a member of a protected class; (2) he . . . was
subjected to unwelcome harassment; (3) the harassment occurred
because of the plaintiff’s protected status; (4) the harassment
was severe to a degree which affected a term, condition, or
privilege of employment; and (5) the employer knew or should
have known about the harassment, but nonetheless failed to take
steps to prevent it.” Peters v. District of Columbia, 873 F.
Supp. 2d 158, 189 (D.D.C. 2012).
Plaintiff offers only bald legal conclusions in his attempt to
show that he was subjected to severe and pervasive harassment.
See Compl. ¶ 85 (asserting that he suffered “a persistent
pattern of severe and pervasive harassment” and was “routinely
humiliated” by supervisors); see also id. ¶¶ 86, 89–90
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(conclusorily invoking the terms “hostile work environment” and
“harassment”). These allegations parrot the legal standard and
cannot alone survive a motion to dismiss. See Iqbal, 556 U.S. at
678 (“recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice”).
Nor did plaintiff provide factual context for his conclusory
allegations. Rather than alleging incidents or actions involving
“discriminatory intimidation, ridicule and insult,” Harris, 510
U.S. at 21 (quotation marks omitted), plaintiff incorporated,
without elaboration, the allegations of disparate treatment on
which he relies for his racial-discrimination claim. See Compl.
¶ 88 (“Defendant’s deliberate conduct of the adverse actions
referred to throughout this Complaint created a hostile and
abusive work environment.”). He thus relies solely on his
allegations that he was denied promotions, hired at a lower
initial grade, and given subjective job-performance reviews. See
id. ¶¶ 16–17, 23, 32–33. Plaintiff claims this is “a persistent
pattern of severe and pervasive harassment.” Id. ¶ 85.
These allegations cannot alone support a hostile-work-
environment claim. Indeed, courts 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
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discriminatory “non-promotions and other performance-based
actions.” Laughlin v. Holder, 923 F. Supp. 2d 204, 219–20, 221
(D.D.C. 2013) (quotation marks omitted). Accordingly, another
Judge of this Court has held that the following allegations are
not “sufficiently severe or pervasive to state a plausible
hostile work environment claim”:
[T]he FBI repeatedly failed to promote Plaintiff to
positions for which she was qualified, interfered with
her efforts to hire a Border Liason Officer, removed
Major Case 186 from her supervision, manipulated her
performance evaluations, denied her bonuses to which
she was entitled, repeatedly pressured her to retire,
interfered with her ability to fill a supervisory
position . . . and interfered with her efforts to hire
a Media Representative.
Id. at 221. Mr. Outlaw alleged far less, referring only to
promotion denials, a subjective performance review, and being
hired at a lower grade than Caucasian employees. Ultimately,
“mere reference to alleged disparate acts of discrimination . .
. cannot be transformed, without more, into a hostile work
environment.” Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94
(D.D.C. 2009) (quotation marks omitted) (dismissing claim which
alleged that plaintiff’s supervisors had, inter alia, “passed
him over for performance awards, lowered his performance
evaluations,” and denied him “a noncompetitive promotion” and “a
within-grade increase”).
The D.C. Circuit has held that “a hostile work environment
claim is not rendered invalid merely because it contains
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discrete acts that the plaintiff claims . . . are actionable on
their own.” Brooks v. Grundmann, 748 F.3d 1273, 1278 (D.C. Cir.
2014) (quotation marks omitted). Nonetheless, the Circuit also
reaffirmed that “[a] plaintiff may not combine discrete acts to
form a hostile work environment claim without meeting the
required hostile work environment standard.” Id. (quotation
marks omitted). In other words, a plaintiff could state a
hostile-work-environment claim by relying on incidents of
allegedly discriminatory nonpromotions, but must allege facts
sufficient to show that those decisions were part of a severe
and pervasive pattern of harassment. See, e.g., Wise v.
Ferreiro, 842 F. Supp. 2d 120, 126–27 (D.D.C. 2012) (hostile-
work-environment claim survived a motion to dismiss, “if not by
much,” based on allegations that a supervisor used a racial
slur, as well as “myriad incidents ranging from threats of
discipline based on false accusations to being singled out and
excluded from trainings and award ceremonies and denied
promotions”). Plaintiff made no factual allegations from which
such a pattern may be inferred and the Court will not permit him
to “‘bootstrap’ his alleged discrete acts of discrimination . .
. into a broader hostile work environment claim.” Rattigan v.
Gonzales, 503 F. Supp. 2d 56, 81 (D.D.C. 2007).3
3
Like plaintiff’s initial Complaint, the proposed amended
complaint—which was stricken from the record—simply asserted
9
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion
to dismiss Counts Two and Three of plaintiff’s Complaint. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 23, 2014
that the same incidents of disparate treatment created a hostile
work environment without elaboration or factual allegations that
could support a such a finding. See ECF No. 15 ¶¶ 11–46, 65–75.
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