KENNETH DURONN WILSON v. CHAD F. WOLF, Acting Secretary Department of Homeland Security
Civil Action No. 20-0100 (ABJ)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
January 22, 2021
Case 1:20-cv-00100-ABJ Document 17 Filed 01/22/21 Page 1 of 16
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,
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
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.
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
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.
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
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
Count Two: sex and gender discrimination based on Title VII and
Count Three: retaliation in violation of Title VII and
Count Four: retaliation in violation of the False Claims Act,
Count Five: hostile work environment claim based on Title VII and
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
When considering a motion to dismiss under
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
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
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
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.
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
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
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 20, 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.
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,
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
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
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
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.
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,
A separate Order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: January 22, 2021