Moore v. Castro

Decision Date17 June 2016
Docket NumberCivil Action No. 14-2109 (JDB)
PartiesANDREW P. MOORE, Plaintiff, v. JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, et al. Defendants.
CourtU.S. District Court — District of Columbia

ANDREW P. MOORE, Plaintiff,
U.S. Department of Housing and Urban Development, et al.

Civil Action No. 14-2109 (JDB)


June 17, 2016


Andrew Moore, an African-American man over 62 years old, alleges that his former employer, U.S. Department of Housing and Urban Development ("HUD"), took dozens of adverse actions against him because of his race, gender, and age, as well as in retaliation for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). The alleged discrimination and retaliation occurred in 2014 during Moore's brief employment and culminated in Moore's termination. HUD responds that none of Moore's nine causes of action (which include claims against HUD employees in their individual capacities) state a claim upon which relief can be granted. And even if they do, HUD moves for summary judgment in the alternative. The Court will grant defendants' motion to dismiss all of Moore's claims against the individual defendants and grant in part the motion to dismiss Moore's claims against HUD. Moore has stated a claim based on certain discrete acts—including his termination—for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. He has also

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sufficiently alleged a claim for hostile work environment. However, only his hostile work environment claim under the ADEA survives HUD's alternative motion for summary judgment.


Moore's narrative begins with his selection as a Presidential Management Fellowship (PMF) Finalist by the Office of Personnel Management.1 Am. Compl. [ECF No. 12] ¶ 27. The PMF program is an entryway into federal government employment for individuals who have recently received advanced degrees. See 5 C.F.R. § 362.403(b). Agencies may consider finalists for appointment to two-year positions. See id. §§ 362.403(f), 362.404(a).

On March 10, 2014, believing that, as a PMF finalist, he had been offered a management position commensurate with his business education background, Moore attended a job fair in Washington, D.C., where federal agencies conducted interviews to recruit and hire PMF finalists for two-year positions. See Am. Compl. ¶ 28. Moore was interviewed by a recruiter from HUD for a "management position" at the agency's regional office in Fort Worth, Texas. Id. According to Moore, the responsibilities of the position included the management of HUD housing grants and vouchers. Id. He "was extremely happy and elated for this wonderful opportunity to train [and] work in management and had great expectations of continued employment with the Federal Government." Id. ¶ 29. But those great expectations were soon dashed.

On March 19, 2014, Moore received a "tentative job offer" from HUD for the position of "Presidential Management Fellow (PMF)." Id. ¶ 30. He was then presented with a "firm job offer" as a construction specialist compensated at GS 11, which he accepted, believing it to be his "targeted position." Id. ¶¶ 33, 35. He began work at HUD on April 21, 2014. Id. ¶ 36. But instead

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of a management position, Moore was assigned to work as a building inspector—a job for which he had no background or qualifications. See id. ¶¶ 46-47. And while Moore, who has an extensive background in business administration, was pressed into service as a building inspector, other PMF employees, with less management experience, were assigned a higher pay grade. Id. ¶ 43.

Moore now contends that HUD singled him out and intentionally discriminated against him by "deceiv[ing] him into believing that he would be offered a legitimate Presidential Management Fellow position." Id. ¶ 126(a). Instead, he asserts, the government extended to him a fraudulent job offer for a position that did not exist. Id. ¶ 34. Then, once Moore had accepted the offer, the government pushed him into a "construction analyst" position, id. ¶ 36, where it continued its discriminatory campaign. Id. ¶¶ 60, 65. Having deceived Moore into accepting a position for which he was unqualified, HUD "used its UPCS [Uniform Physical Condition Standard] Inspection Certification Training Program as a tool to discriminate against Moore." Id. ¶ 47.

HUD also allegedly isolated Moore from other PMF employees in myriad ways. For example, HUD refused to issue Moore an "official acceptance letter," prevented him from attending scheduled PMF events and activities, and forced him to travel and work "out in the field." Id. ¶ 60. In the meantime, HUD treated PMF employees who were female, not African American, and younger than Moore more favorably—by not taking these same actions against them. Id. ¶¶ 61, 66. Moore also suffered at the hands of his supervisors. Defendant Brian Ruth, Moore's second line supervisor, "shouted" at him on his first day at work. Id. ¶¶ 72, 84. Defendant Dilip Patel, Moore's first line supervisor, "verbally reprimanded, humiliated, degraded and embarrassed Moore in front of a building inspector and others." Id. ¶¶ 72, 86. And defendant Jose Bosque-Perez "escalated the situation to the point where Moore began crying." Id. ¶ 92.

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On June 10, 2014, Moore complained that other PMF employees were receiving better treatment than he was and that he was being subjected to a hostile work environment. Id. ¶ 70. But things did not improve; they got worse. Moore's first and second line supervisors and the HUD PMF coordinator "refus[ed] to assist him to complete an IDP [individual development plan]" such that Moore was forced to complete his IDP alone. Id. ¶¶ 72-73. It was subsequently rejected. Id. ¶ 73. And rather than execute a written PMF Participant Agreement for Moore, his supervisors provided him with a "virtually blank Participant Agreement form that contained no input" from his supervisors or human resources. Id. In addition, in July 2014, rather than transfer Moore from what he complained was a hostile work environment, HUD forced him to work from home. Id. ¶ 76. Moreover, from June through September, Patel, Ruth, and defendant Delton Nichols "made offensive and insulting remarks or comments suggesting that Moore worked too slow, suffered from memory loss, had a learning inability, and could not sufficiently comprehend the exercises in the UPCS Inspection Certification Training because of his age." Id. ¶ 88.

The situation finally culminated in Moore's discharge from employment on September 24, 2014. Id. ¶ 107. Moore alleges that his Notice of Termination "is inundated with false trumped-up charges," including that Moore engaged in misconduct, failed to read his emails and weekly assignments, was observed sleeping on duty, failed to follow instructions, did not contact his supervisors for assistance, and did not display a positive attitude. Id. ¶ 113. According to Moore, HUD retained other PMF employees who were female, younger, and not African American. Id. ¶ 108.


On October 29, 2014, and November 12, 2014, Moore filed two formal Equal Employment Opportunity (EEO) complaints charging HUD with race and sex discrimination, retaliation, hostile

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work environment, and discriminatory and retaliatory discharge. Id. ¶ 19. He raised his age discrimination claim with the EEOC on October 16, 2014, when he filed a notice of intent to sue. Id. ¶ 17. Believing his administrative remedies to be exhausted, Moore now brings this federal lawsuit. His amended complaint alleges nine causes of action. The first five allege that HUD Secretary Julian Castro (hereinafter, HUD) discriminated against Moore based on his age, gender, and race, and retaliated against him in violation of the ADEA and Title VII. Specifically, Counts I and II allege a list of twenty-four discriminatory actions taken against Moore. Count III asserts retaliation based on many of the same discrete incidents. Count IV asserts a discriminatory and retaliatory hostile work environment. And Count V claims that Moore's termination was also discriminatory and retaliatory.

His other causes of action allege that nine individual defendants: conspired to obstruct justice in violation of 42 U.S.C. § 1985(2) (Count VI); conspired to deprive Moore of his rights and privileges in violation of 42 U.S.C. § 1985(3) (Count VI); and engaged in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) (Count VIII). Moore also brings suit against four of these individuals for "negligence to prevent conspiracy" in violation of 42 U.S.C. § 1986 (Count VII).

On August 11, 2015, the defendants filed the motion to dismiss or, in the alternative, for summary judgment that is now before the Court. They sought to dismiss all nine counts of the complaint either under Rule 12(b)(6) for failure to state a claim or under Rule 56 on summary judgment. Plaintiff has opposed the motion, and has complained generally that he has not yet had the opportunity to undertake discovery. He also has filed a motion to disqualify the presiding judge.

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The Court must begin by resolving Moore's motion for disqualification. Concluding that recusal is not warranted, the Court will go on to assess whether Moore's complaint states a claim that survives HUD's 12(b)(6) motion to dismiss. Upon identifying those claims that survive 12(b)(6) dismissal, the Court will proceed to determine whether summary judgment is proper.

I. Motion to Disqualify

Moore filed a motion to disqualify the undersigned judge from further involvement in this matter. That motion, opposed by defendants, focuses on three incidents: (1) the Court's "scathing admonition" of Moore at a status conference; (2) the Court's denial of Moore's motion for a discovery conference while a dispositive motion was pending; and (3) the Court's striking of his surreply. Pl.'s Mot. to Disqualify [ECF No. 53] at 1-2.


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