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Washington v. Perez

United States District Court, D. Nebraska

July 14, 2016

THOMAS E. PEREZ, Secretary, Department of Labor, and CLARENCE H. WOOD JR., Defendants.


          Laurie Smith Camp Chief United States District Judge

         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.


         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 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 African-American. 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.)


         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., 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 ...

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