Brady v. Livingood

• Decision Date: 24 March 2004
• Docket Number: No. 02-802 (RJL).,02-802 (RJL).
• Citation: 360 F.Supp.2d 94
• Parties: Standley BRADY, Plaintiff, v. Wilson LIVINGOOD, Sergeant at Arms, U.S. House of Representatives, the Office of the Sergeant at Arms, et al., Defendants.
• Court: U.S. District Court — District of Columbia

360 F.Supp.2d 94

Standley BRADY, Plaintiff, v. Wilson LIVINGOOD, Sergeant at Arms, U.S. House of Representatives, the Office of the Sergeant at Arms, et al., Defendants.

No. 02-802 (RJL).

United States District Court, District of Columbia.

March 24, 2004.

COPYRIGHT MATERIAL OMITTED

Joseph D. Gebhardt, Charles W. Day, Jr., Gebhardt & Associates, LLP, Washington, DC, for Plaintiff.

Gloria Lett Ferguson, Kerry W. Kircher, Victoria Botvin, U.S. House of Representatives, Edith M. Shine, U.S. Attorney's Office, Washington, DC for Defendants.

MEMORANDUM OPINION AND ORDER

LEON, District Judge.

Before the Court are the motions to dismiss of defendant Office of the Sergeant at Arms of the U.S. House of Representatives ("Office of the Sergeant at Arms") and seven individual defendants who are current or former House employees, Wilson Livingood, Kerri L. Hanley, Donald T. Kellaher, Jeanne Mershon, Patrick Lanigan, Barbara J. Sullivan, and Anthony Griffith ("Individual House Defendants").¹ The Office of the Sergeant at Arms moves to dismiss Counts II and V of the plaintiff Standley Brady's Amended Complaint, which respectively allege unlawful employment discrimination and retaliation under the Congressional Accountability Act.² 2 U.S.C. §§ 1301-1438. This defendant also moves for dismissal of any claims brought by the plaintiff that occur outside of the 180-day statute of limitations for claims under the Congressional Accountability Act. In a separate motion, the Individual House Defendants move to dismiss Count III of the Amended Complaint, the sole count brought against these defendants, which seeks relief under 42 U.S.C. § 1985(3) for a civil conspiracy to violate federally guaranteed rights. For the following reasons, the Court GRANTS the Office of the Sergeant at Arms' motion. Furthermore, the Court GRANTS the Individual House Defendants' motion to dismiss Count III of the Amended Complaint.

Factual Background

The plaintiff is an African American male who has been employed by the U.S. House of Representatives Office of Garages and Parking Security Department ("OG & PS") as a Garage and Parking Security Officer since 1982, initially with the Office of the Architect of the Capitol, and then with the defendant Office of the Sergeant at Arms. Although the plaintiff believes that he has maintained an excellent work record during his more than twenty years of employment with OG & PS, he claims that he "has been the target of ongoing discriminatory practices based on his race and retaliation as result of his speaking out against certain unlawful employment practices" by the Office of the Sergeant at Arms. Amend. Compl. ¶ 34. For instance, the plaintiff states that he has never received a permanent promotion or more than one pay bonus, while "white employees have advanced and receive annual pay bonuses at a higher rate" than plaintiff and other African Americans. Id. at ¶ 41. The plaintiff further alleges that he and other experienced, educated African Americans have been continually discriminated against and are unable to advance to the OG & PS managerial level. Id. at ¶ 42.

On or about April 12, 2000, the plaintiff received the temporary position of Assistant Shift Supervisor, which carried a one-year probationary period ending April 12, 2001. Id. at ¶ 21. On or about April 9, 2001, after returning from vacation time used to make a missionary visit to South Africa, the plaintiff learned that his supervisor, William Morris, who the plaintiff alleges was the only African American supervisor, had been forced to resign as a result of allegations by two white employees, Barbara J. Sullivan and Anthony W. Griffith. Id. at ¶ 22. On the same day, the plaintiff was informed by Jeanne Mershon, Deputy Director, and Don Kellaher, Assistant to the Sergeant at Arms, that he would not be promoted to the position formerly held by Morris. The plaintiff claims that Mershon and Kellaher told him that although he would have been next in line for the position, the Office of the Sergeant at Arms preferred a white male, Bill Lomax, over the plaintiff. Id. at ¶ 23. The plaintiff alleges that Mershon stated she felt more comfortable working with Lomax, a white male, than with the plaintiff, an African American employee. Id. According to the plaintiff, Lomax had "less than nine months on the job." Id. at ¶ 24.

The following day, April 10, 2001,³ the new Acting Supervisor, Bill Lomax, allegedly approached the plaintiff and spoke to him in a degrading and condescending fashion, as if the plaintiff was a "slave-servant" to Lomax. Id. at ¶ 25. The plaintiff was later summoned to the office of Deputy Director Mershon, and then to the office of Wilson Livingood, Sergeant at Arms. Deputy Sergeant at Arms Kerri Hanley and Don Kellaher told the plaintiff that the Sergeant at Arms had lost confidence in the plaintiff's ability to supervise and that as a result, the plaintiff would be demoted from his probationary term to a lower grade classification. Id. at ¶ 25. Hanley allegedly told the plaintiff that there had been investigations of the plaintiff's conduct based on comments from a private focus group of employees, who indicated that the plaintiff was not an effective supervisor. Id. at ¶ 26. The plaintiff was further informed that there was clear and convincing evidence that the plaintiff had sexually harassed two white employees.⁴ Id. The plaintiff believes that the two employees who accused the plaintiff, Sullivan and Griffith, also made allegations against the plaintiff's former supervisor, William Morris. Id. at ¶ 28. The plaintiff denies that the sexual harassment took place. Moreover, he claims that even though he asked for a copy of any evidence against him, that Hanley and Kellaher denied the request, and subsequently indicated that his vacation to South Africa gave them the impression that he was running away from his guilt. Id. at ¶ 29. The plaintiff contends that his demotion resulted in a substantial loss of income, embarrassment, and a loss of reputation. Id. at ¶ 31.

The plaintiff also believes that the Office of the Sergeant at Arms has retaliated against him in other ways for his inquiries regarding a pattern of discrimination against African Americans. He claims that he has never received a permanent promotion or more than one bonus award, has been denied overtime assignments, and has been assigned to work locations that are detrimental to his health and allergies. Id. at ¶¶ 41, 43, 47. The plaintiff asserts that he was assigned to work posts that are "dilapidated, without electricity, infested with termites and mosquitoes" and that he was exposed to dust, water, and mildew, which caused him to develop "severe allergic reactions." Id. at ¶¶ 43, 45. In November 2001, he was rushed to the emergency room for an allergic reaction that now requires weekly inoculations. Id. at ¶ 45.

Based on these allegations, the plaintiff brings claims of unlawful employment discrimination based on race, retaliation, and hostile work environment against the Office of the Sergeant at Arms, and a claim of civil conspiracy against the seven Individual House Defendants. The plaintiff asserts that he has exhausted any administrative prerequisites for this action by completing counseling and mediation required by the Congressional Accountability Act, and has received notice of his right to proceed with further action. Id. at ¶ 11.

The Office of the Sergeant at Arms moves for dismissal of Counts II (race discrimination — disparate impact) and V (retaliation) for failure to state claims upon which relief can be granted, and for dismissal of claims outside of the 180-day statute of limitations of the Congressional Accountability Act. The Individual House Defendants move for dismissal of the conspiracy claim (Count III) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

Discussion

The Court will only dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, even if the Court accepts as true all of the factual allegations set forth in the complaint, Doe v. United States Dept. of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985), and construes the complaint liberally in favor of the plaintiff, Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979), it "need not accept inferences drawn by [the] plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal, 16 F.3d at 1276.

I. Claims against the Office of the Sergeant at Arms: Race Discrimination — Disparate Impact (Count II) and Retaliation (Count V)

In his Amended Complaint, the plaintiff brings four claims against the Office of the Sergeant at Arms under the Congressional Accountability Act, 2 U.S.C. §§ 1301-1438: race discrimination — disparate treatment (Count I), race discrimination — disparate impact (Count II), retaliation (Count V), and hostile work environment (Count VI). The Office of the Sergeant at Arms moves for dismissal of Counts II and V for failure to state a claim upon which relief can be granted, and also moves for dismissal of any claims occurring outside of the 180-day statute of limitations under the Congressional Accountability Act.

A. The Congressional Accountability Act of 1995

The Congressional Accountability Act ("CAA") makes several anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., applicable to the legislative branch of the federal government. 2 U.S.C. § 1302. Under the statutory framework of the CAA, federal courts only have jurisdiction over civil actions brought by a covered employee if that employee has completed mediation and counseling...