Gomez v. McDonough

Decision Date10 May 2022
Docket NumberCivil Action 21-cv-1685 (BAH)
PartiesRENE GOMEZ, Plaintiff, v. DENIS MCDONOUGH, in his official capacity as Secretary, U.S. Department of Veterans Affairs, Defendant.
CourtU.S. District Court — District of Columbia


Plaintiff Rene Gomez, a Mexican-American male and an Emergency Management Specialist at the U.S. Department of Veterans Affairs (VA), brings this action against Denis McDonough, in his official capacity as Secretary of Veterans Affairs, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that he has experienced racial discrimination and a hostile work environment and faced retaliation for engaging in protected activity during his employment with the VA. Compl. ¶¶ 1-2, 23-24, ECF No. 1. According to plaintiff among other alleged incidents, he was told “negative and harmful comments about his cultural heritage, including his clothing and name;” he “received a lower than justified performance rating;” and he was “denied the opportunity to swap shifts in the manner and practice of his coworkers.” Pl.'s Mem. Opp'n to Def.'s Mot. to Dismiss (“Pl.'s Opp'n”), at 10 ECF No. 12-1. Defendant has moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. Def.'s Mot. to Dismiss Pl.'s Compl. (“Def.'s Mot.”) ECF No. 11; Def.'s Mem. Supp. Mot. to Dismiss Pl.'s Compl. (“Def.'s Mem.”), at 5-6, ECF No. 11.[1] For the reasons explained below, defendant's motion is granted.


Summarized below is the factual and procedural history relevant to resolving the instant motion.

A. Factual Background

This litigation stems largely from interactions between plaintiff and his first- and second-level supervisors at the Office of Security Preparedness in the VA's Integrated Operations Center in Washington D.C. that occurred over a two-year period, from May 2016 to May 2018, when plaintiff claims to have been his unit's “only Mexican-American/Latino employee.” Compl. ¶¶ 22-23, 28, 115.

On May 9, 2016, plaintiff received a routine performance review from his new, immediate supervisor, Nicole Julaton, an African-American female, qualifying his performance for the October 2015-May 2016 period as “Fully Successful, ” which represented a downgrade from prior reviews rating his performance as “Excellent” or “Outstanding.” Id. ¶¶ 25-26, 29-30. Dissatisfied with this performance appraisal, plaintiff contacted Julaton to discuss his rating, but Julaton responded she was “too busy” to discuss the review with him. Id. ¶ 33. Plaintiff was thereafter also unable to discuss the performance review with his “second line supervisor, ” William Flinter, a White male and director of the VA's Integrated Operations Center, who did not respond to plaintiff's emails soliciting feedback. Id. ¶¶ 27, 34.

Two days later, on May 11, 2016, plaintiff went to Flinter's office to discuss “an important email he had received from the Department of Health and Human Services [“HHS”], ” id. ¶ 35, apparently bypassing Julaton, his first-level supervisor. Flinter allegedly greeted plaintiff with the phrase “What's up, Jose?, ” which “upset and offended” plaintiff, whose first name is Rene and is “the only Mexican-American/Latino employee” in his office. Id. ¶¶ 35-37. According to plaintiff, when he explained the HHS email, Flinter “became angry[, ] . . . raised his voice” and “complain[ed] that [plaintiff] does not need to come to his office every ten minutes, ” id. ¶ 38, though plaintiff provides no further detail about whether Flinter's reaction derived from plaintiff bypassing his first-line supervisor. Following this exchange, plaintiff “felt uncomfortable and avoided going to Mr. Flinter's office when possible.” Id. ¶ 40. Plaintiff does not allege he was ever called by a name other than his own by Flinter or any other colleague outside of this single instance.

Several weeks later, on May 28, 2016, Flinter allegedly emailed plaintiff “scold[ing] him for [a] time entry” and indicating that plaintiff had submitted more “time cards” than he was “scheduled for and authorized to claim” over the previous pay period. Id. ¶¶ 43-44. Plaintiff responded to Flinter that he had been approved to work those additional hours, after which plaintiff asserts that Flinter “admitted that [plaintiff] was correct and had documented his hours appropriately.” Id. ¶¶ 45-46. Despite Flinter's apparently prompt acknowledgement of his error and resolution of this dispute favorably to plaintiff, plaintiff nonetheless informed Flinter's first-line supervisor of Flinter's email and requested guidance, to which email request plaintiff received no response. Id. ¶ 47.

The next month, on June 24, 2016, Flinter summoned plaintiff to his office. Id. ¶ 48. According to plaintiff, during the ensuing conversation, Flinter instructed plaintiff “not to speak” to Rebecca Graves, a fellow Emergency Management Specialist, whom plaintiff had apparently “upset” after he “instructed her on how to perform certain functions that she had been doing incorrectly” and had earlier complained to Julaton about plaintiff. Id. ¶¶ 48-50, 91.[2] Flinter also “snapped at [plaintiff] and told him to tuck in his shirt.” Id. ¶ 51. At that time, plaintiff was wearing, as he had “often” done before, a “Guayabera shirt, a button down, collared shirt common in Latino culture, which has a flared bottom and is designed not to be tucked in.” Id. ¶¶ 52-53. A dress code policy issued by Flinter months earlier “required men to tuck their shirts in at all times, ” even though the VA's dress code policy only directed employees to wear “business attire.” Id. ¶ 56. Plaintiff alleges that he had “frequently seen white male employees wear untucked polo shirts in the office[] who ha[d] not been directed to tuck their shirts in.” Id. ¶ 57. Citing the more permissive VA-wide dress code policy, plaintiff responded to Flinter that he would not tuck the shirt in” and explained the shirt's “cultural significance” as a piece “designed to be worn as an outer-garment, not tucked in.” Id. ¶¶ 54-55. Following plaintiff's explanation, Flinter later told plaintiff that he did not have a problem with the way [he] dressed.” Id. ¶ 59. Plaintiff does not allege that he thereafter stopped wearing Guayabera shirts to work or that he was ever formally censured for failing to comply with any dress code policy.

Plaintiff further complains about various scheduling decisions made in September and October 2016. Specifically, he alleges that Flinter denied his request to “swap shifts” with two of his colleagues due to concerns that the requested swap would “cause[] uncertainty in the schedule, ” id. ¶¶ 60-61; that Julaton devised a schedule allowing two White officers “to work significantly fewer night shifts” than non-White employees, including plaintiff, id. ¶¶ 62-66; and that Julaton denied one of plaintiff's leave requests without justification “other than to say it did not comport with the . . . schedule, ” id. ¶¶ 67-68.

On September 30, 2016, plaintiff contacted the VA's Equal Employment Opportunity Office (“EEO”) and filed an informal complaint naming both Flinter and Julaton as “Responsible Management Officials.” Id. ¶¶ 10, 70. Plaintiff avers that he thereafter “actively and openly participat[ed] in the [EEO] process at every step.” Id. ¶¶ 135-136. At various dates in October 2016, Flinter and Julaton denied a string of additional requests that plaintiff made to switch shifts with coworkers, id. ¶¶ 75-76; for paid leave, id. ¶¶ 73-74; and for compensatory time after he covered a sick colleague's shift (although he was compensated with overtime pay for covering that shift), id. ¶¶ 78-84. In addition, plaintiff complains that, on October 2, 2016, his supervisors “did not allow [him] an adequate amount of time to recover when he transitioned from [a] night shift to day shift . . . which is typically allowed for other” employees who cover a night shift. Id. ¶¶ 71-72.

About two months later, on December 7, 2016, plaintiff avers that Julaton issued his 2017 Performance Plan Review” in a “public area of the office[] with multiple other employees present and within earshot, ” which he describes as an “unprofessional and inappropriate setting.” Id. ¶¶ 85-86. According to plaintiff, Julaton “allowed all other employees to receive their appraisals privately in her office.” Id. ¶ 87. The next day, on December 8, 2016, Julaton informed plaintiff and another employee that they were not allowed to use “unassigned computers and desks” in the rear area of the office. Id. ¶ 88. Plaintiff contradictorily avers that Julaton gave this instruction “without explaining why, ” id., but that upon asking for a reason, Julaton explained “that the computers were only for Watch Officers assigned to those desks, ” id. ¶ 89.

Then, on January 4, 2017, plaintiff learned that Flinter had selected a White colleague for a new “GS-13 level position that would act similar to a supervisor” in plaintiff's unit during the night shift. Id. ¶ 92. Plaintiff asserts that he “was denied the opportunity to seek” this new supervisory role, “which would have been a promotion for him, because . . . Flinter did not post the position openly for others to apply, ” and instead “privately chose” one of plaintiff's two White colleagues “without competition.” Id. ¶¶ 93-94.

Later that year, on September 10, 2017, plaintiff claims that Bobby Small, the Operations Branch Chief for VA's Integrated Operations Center, ordered him to empty “a dumpster full of trash” while in the presence of three other employees at a conference room. Id. ¶¶ 105-106. When plaintiff refused to empty the dumpster, Small allegedly responded: “I will remember this.” Id. ¶ 108. As...

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