United States District Court, D. Nebraska
JAMES A. WASHINGTON JR., Plaintiff,
THOMAS E. PEREZ, Secretary, Department of Labor, and CLARENCE H. WOOD JR., Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
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.
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.
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
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.
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
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.)
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.
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.)
R. Civ. P. 12(b)(6)
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
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