Moore v. U.S. Dep't of State, 17-cv-1531 (DLF)

• Decision Date: 09 January 2019
• Docket Number: No. 17-cv-1531 (DLF),17-cv-1531 (DLF)
• Citation: 351 F.Supp.3d 76
• Parties: Donald L. MOORE, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

351 F.Supp.3d 76

Donald L. MOORE, Plaintiff,

v.UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

No. 17-cv-1531 (DLF)

United States District Court, District of Columbia.

Signed January 9, 2019

Karey L. Hart, J. Michael Hannon, Hannon Law Group, LLP, Washington, DC, for Plaintiff.

Christopher Walker Radcliffe, Daniel Edward Bensing, U.S. Department of Justice, Joshua L. Rogers, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District JudgeDonald L. Moore brings this Title VII action against his employer, the U.S. Department of State, and Secretary of State Michael Pompeo,¹ asserting that they subjected him to a hostile work environment, retaliated against him for protected activity, and discriminated against him on the basis of his race. Before the Court is the defendants' Motion to Dismiss, Dkt. 21. For the reasons that follow, the Court will deny the motion.

I. BACKGROUND

Donald Moore, an African American male, has worked for the Department of State since 1992. See Compl. ¶¶ 1, 8, Dkt. 1.² Moore's career at the Department had a promising start. He received several awards for excellence and was promoted into the Senior Foreign Service on his first try. Id. ¶ 8. But his career advancement came to an end in 2010 when Moore became Consul General of the U.S. Consulate in Naples, Italy. Id. ¶ 9. In Naples, Moore clashed with a group of subordinates engaging in workplace misconduct. Id. ¶ 11. He counseled the employees individually, but they rejected his leadership and allegedly "embarked on relentless, racially motivated attacks" against him. Id.

The employees began their attacks by filing four Equal Employment Opportunity (EEO) complaints and submitting allegations of misconduct to the Office of Inspector General (OIG).Id. ¶ 12. The employees accused Moore of, among other things, consorting with prostitutes in his official residence. Id. ¶ 13. Moore defended himself in the EEO and OIG proceedings and claimed that the employees' allegations were "racially motivated" and designed to cover up their own "poor performance." Id. ¶ 12.

Two of the employees—William and Kerry Howard—then shared "salacious rumors" with U.S. Senator Rand Paul, id. ¶ 14, and Congress referred the allegations to the Bureau of Diplomatic Security for investigation, id. ¶ 15. The State Department investigation exonerated Moore, who in turn asked Department leadership for "public support" to clear his name. Id. ¶¶ 15–16.

The Department refused. Id. ¶ 16. Adding insult to injury, Executive Director of Consular Affairs James Herman stated that the allegations didn't surprise him considering Moore's "corridor reputation." Id. Herman shared that opinion with several "influential State Department officials" even though he knew that Moore was seeking future assignments and that Moore's reputation would be critical to that process. Id.

Meanwhile, Kerry Howard took the allegations against Moore to the Italian press.

Id. ¶ 17. In Italy, more than 60 articles reported the allegations. Id. In June 2013, the negative publicity spread to the United States, where stories about Moore's purported "trysts" with prostitutes appeared online and in the New York Post . Id. ¶ 17.

Department officials struggled with how to react to the scandalous media stories. They discussed their options with the Bureau of European and Eurasian Affairs and considered "a comprehensive, official response" that would include reporting the results of the Diplomatic Security investigation. Id. ¶ 18. Two Department offices and three high-ranking officials approved a press statement announcing that Moore had been cleared of all charges, but ultimately the Department decided not to release it. Id. Moore, for his part, could not defend himself publicly because a Department policy prohibited employees from speaking to the press. Id. ¶ 19.

With the scandalous rumors unaddressed, Moore sought an "onward assignment" within the Department, but "[n]o mission would touch him." Id. ¶ 21. Ultimately, the Department detailed Moore to a "dead-end position" at a university in Alabama operated by the U.S. Air Force. Id. The university initially objected to the placement. Id. It later accepted Moore but did not let him do "public outreach" or "presentations." Id.

In August 2013, before leaving for Alabama, Moore sought a "formal endorsement" from two high-ranking Department officials to "rehabilitate his reputation and career for onward assignments." Id. ¶ 22. They refused. Id. One of the officials described the Naples controversy as "poisonous;" the other warned Moore "not to procure prostitutes" in Alabama. Id.

Undeterred, Moore sought support for another position in the Department's Visa office. Id. ¶ 23. He scheduled a meeting with a Department official in August 2013, but the official cancelled without explanation. Id. Later, Moore met with two more officials seeking support for yet another position. Id. They declined, citing concerns about Moore's " ‘modeling’ and reputation." Id.

In October 2013, Herman—the official who previously called Moore's "corridor reputation" into doubt, id. ¶ 16—requested an "assessment" of Moore from Moore's colleagues, id. ¶ 24. The timing of this request was unusual and contrary to Department policy. Id.

That same month, the Department's Office of Civil Rights dismissed the EEO complaint filed by Kerry Howard—the Naples employee who had shared the prostitution allegations with the Italian press. Id. ¶ 25. A few days after the dismissal, an online article reported that the Department had "Swept Sex Scandals Under the Rug." Id. ¶ 26.

In the fall of 2013, Moore realized he was "stymied" by the Department's failure to remedy the negative impact of the Naples allegations on Moore's reputation and advancement. Id. ¶ 27. He filed an EEO complaint alleging unlawful discrimination and was "railroaded" into mediation with the Department. Id. ¶¶ 27, 28. The mediation involved Moore—who was unrepresented by counsel—four "Responding Officials," an "HR Representative," a "Resolving Official," and two "Mediators." Id. ¶ 28. This "impressive representation" on behalf of the Department was "intimidating" to Moore, but it showed him that "he was being taken seriously." Id.

During the mediation, the Department did not disclose that Kerry Howard had received a "right to sue" letter from the Office of Civil Rights and would likely file a lawsuit in federal court. Id. The Department also did not explain that such a lawsuit could lead to further negative publicity for Moore, or that it could provide an opportunity for the Department to publicly defend Moore's reputation through litigation. Id.

In November 2013, Moore entered a settlement agreement with the Department. Id. ; see also Defs.' Mot. to Dismiss Ex. 1, Dkt. 21-3 (copy of agreement).³ Moore agreed to "withdraw and quit for all time any and all claims, demands, actions, causes of action, complaints, or suits against the Department, ... whether or not known[,] arising, or which might arise, up to and including the date of this Agreement." Defs.' Mot. to Dismiss Ex. 1, ¶ 1. In exchange, the Department agreed to have certain high-level Department officials meet with Moore to discuss his bids for onward assignments, to extend the deadline for Moore's bids, to extend his "Time in Class" by one year, to consider making proposed changes to Moore's 2012 employee evaluation, to provide a positive recommendation for Moore to use in his bids, to provide Moore with technology to facilitate his remote communication with the Department, and to "issue a memorandum to [Moore] summarizing the results of the Bureau of Diplomatic Security's investigation" of the matters in Naples. Id. ¶ 9.⁴

After executing the agreement, the Department chose not to make any changes to Moore's 2012 employee evaluation. Id. ¶ 30. And it gave Moore mixed messages on what he could do with the memorandum summarizing the Diplomatic Security investigation. Id. One office told Moore he could use it however he pleased once it was in his possession; another told him he could release it publicly only if he made clear that its contents reflected Moore's own views and not those of the Department. Id.

In January 2014, Kerry Howard filed a federal lawsuit that repeated her allegations against Moore. Id. ¶ 32. Two U.S. news articles—one in the New York Post and one in Newsweek —reported on the allegations. Id. ¶ 33. The Department subsequently settled Kerry Howard's lawsuit. Id. ¶ 35. When Moore found out about the settlement, he requested that the Department issue a press release stating that Moore had been cleared of the prostitution allegations. Id. ¶ 36. A member of the Executive Office for the Bureau of European Affairs refused, and when Moore told her that the allegations had been destroying his reputation within the Department for years, she advised him to consult with Human Resources because "there were ‘black people’ there." Id. Later, the same employee made clear to Moore that any press release concerning the allegations would have to include a disclaimer that the release reflected Moore's views and not the Department's. Id. ¶ 37.

Dissatisfied, Moore spoke with John Robinson, the Director of the Office of Civil Rights and Chief Diversity Officer of the Department. Id. ¶ 38. Moore explained the negative impact of the Department's persistent refusal to clear his name, and he requested Robinson's support for a promotion. Id. Robinson responded by suggesting that Moore consider leaving the Department for the private sector. Id.

In the fall of 2015, Jeffrey Young—one of the employees who clashed with Moore in Naples—complained to the Office of Inspector General that Moore had perjured himself in Young's EEO proceeding. Id. ¶ 39. Moore responded to the perjury allegation and expressed his view that it was racially motivated. Id.

Since 2012, Moore has received no promotions or performance-based bonuses. Id. ¶ 43. His advancement has allegedly been "stymied"...