Casselle v. Foxx

195 F.Supp.3d 270

Perry CASSELLE, Plaintiff,

v.Anthony FOXX, Secretary, United States Department of Transportation, et al., Defendants.

Civil Action No. 15-1570 (JEB)

United States District Court, District of Columbia.

Signed July 1, 2016

Andrea M. Downing, R. Scott Oswald, The Employment Law Group, P.C., Washington, DC, for Plaintiff.

April Denise Seabrook, Daniel Patrick Schaefer, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Plaintiff Perry Casselle is an employee of the Federal Aviation Agency who suspects that his email complaining about an allegedly racist video shown at an FAA meeting has grounded his chances at promotion. He brings suit against both the FAA and Anthony C. Tisdall, a National Operations Manager there who oversaw selection for a position that Plaintiff did not obtain. Casselle alleges that his complaint about the video was protected activity under Title VII and that the FAA has unlawfully retaliated against him by denying a promotion for which he was qualified.

In addition to the Title VII claims against the FAA, Casselle also brings a count against Tisdall, alleging that he violated Plaintiff's First Amendment free-speech rights by retaliating against him for voicing his concerns about the video. Only that last count is in question here, as Defendant has moved to dismiss it alone. Tisdall contends that because Title VII is the sole and exclusive remedy for charges of race discrimination and retaliation in the workplace, Casselle's First Amendment claim is preempted. Agreeing that such count cannot fly, the Court will grant the Motion.

I. Background

According to the Complaint, which the Court must presume as true at this stage, Perry Casselle is a mid-50s black male from Virginia who has worked at the Federal Aviation Agency for 28 years. See Compl., ¶¶ 12, 22. Since 2010, he has been a Traffic Management Officer in the Traffic Management Unit; in this role he is responsible for overseeing all air traffic at particular airports to which he is assigned. Id., ¶ 26. Defendants include both the FAA, an agency of the U.S. Department of Transportation, and Tisdall, the National Operations Manager whose actions are central to Casselle's suit and this Motion. Id., ¶¶ 13, 15, 29. Tisdall was one of five so-called NOMs, each of whom is responsible for a U.S. region with approximately 52 TMOs (including Casselle) serving beneath them. Id., ¶¶ 27, 29.

A. Showing of Video

Plaintiff states that his troubles with the FAA began when an allegedly offensive video was shown at an October 2010 national End of Season Meeting with FAA managers and other personnel. Id., ¶ 40. The meeting marked the occasion for the retirement of one of the five NOMs, Rico Short. Id., ¶¶ 33, 43. One of Short's fellow NOMs, Mike Artist, attempted a roast of Short by playing a video entitled "Terry Tate takes a Vacation," "show[ing] the video as [a] depiction of Short's role at the [Air Traffic Control System Command Center]." Id., ¶¶ 33, 42-43. Casselle's Complaint suggests that the roast—like most roasts—was well intentioned but poorly executed. According to the Complaint, "The video depicted a large, black male character," "Terrible Terry Tate," who ran "around a hotel, verbally and physically threatening staff to do their jobs." Id., ¶ 44. The character's job was to increase office efficiency, which he achieves by way of "threats, violence, and verbal abuse." Id., ¶ 45. Throughout, Terrible Terry Tate tackles and shouts at employees who avoid him, and in one scene he "thrust[s] his pelvis and gesture[s] his hands toward his crotch, ... standing over the employee," id., ¶ 46, while in another vignette, he kicks an employee lying on the floor. Id., ¶ 47. Casselle, "one of only a few African Americans" in attendance, states that the "mostly Caucasian audience" of roughly 125-150 people "appeared to be shocked and offended by the video" and "did not laugh at the presentation and seemed to be uncomfortable and hushed." Id., ¶¶ 48-49. Casselle too was "shocked and offended," for the "Tate character perpetuated racist stereotypes and was belittling to black men." Id., ¶ 50.

B. Casselle's Email

A few days after that meeting, Casselle sent what was intended to be an anonymous email to the FAA's Civil Rights Office and to Nancy Kalinowski, a white woman who had attended the meeting. Id., ¶ 51. Kalinowski was Casselle's bosses' boss: as one of the FAA's vice presidents, she supervised Ellen King, who in turn supervised the NOMs, including Artist and Tisdall. Id. Plaintiff explained in his email that he felt the video was racist and unprofessional, with language inappropriate for a professional setting. Id., ¶¶ 52-53. The video was "a ‘clear reminder of the stereotypical big African American Athlete who cannot speak but is used only for his brute force and intimidation.’ " Id., ¶ 53. He was particularly upset with Artist's association of the video with Short because "other than race, Short shared no characteristics that would cause one to associate Short with the Tate character." Id., ¶ 54. In contrast to " ‘Terrible’ Terry Tate," he considered Short to be "professionally articulate in every meeting ... that [he] attended. Not once did [Plaintiff] recall him ever bullying, cussing, or intimating [sic ] in order to make his point." Id. Casselle was also offended that Artist stated that he had regularly used Terry Tate videos in trainings, id., ¶ 55, and noted that "the FAA had tolerated similar racist behavior in the past." Id., ¶ 52. He also complained that upper management at the FAA lacked racial diversity. Id.

The response Casselle received fell short of his expectations. Kalinowski replied a week later, confirming that Artist had shown the video before and that "several people had complained about it." Id., ¶ 56. She promised him that Artist would not be allowed to do so again. Id. Plaintiff was "shocked that the FAA management had allowed Artist to continue to show such videos after receiving complaints." Id., ¶ 58. Casselle never received a response from the Office of Civil Rights. Id., ¶ 57. Kalinowski also shared his concerns with the NOMs under her management at the Warrenton, Virginia, Command Center, presumably including Tisdall. Id., ¶ 5.

C. Failure to Obtain Promotion

Casselle here charges that his email complaining about racial discrimination at the FAA has caused him to lose out on promotions, and he names Tisdall specifically in one count because he thinks "Tinsdall violated Casselle's First Amendment rights when Tisdall refused to select Casselle for the NOM position in September 2014," during which time Defendant was the selecting officer. Id., ¶¶ 8, 16. Casselle believes this refusal was "in retaliation for [his] complaint against [Tisdall's] comrade NOM," Artist. Id., ¶ 11. For the purposes of this Motion to Dismiss, the Court need not delve deeply into this selection process; suffice it to say that Casselle applied for an NOM position in April 2014, and despite being told he was one of the top three candidates and had done "very well," was informed by Tisdall that he had not been selected for the position. Id., ¶¶ 66-74. Plaintiff complains that Tisdall gave him no "legitimate reason for his non-selection" and "no guidance on how to improve his qualifications for consideration in the future." Id., ¶ 79. He believes that the agency had no good basis for failing to select him for the NOM position. Id., ¶ 80.

Having administratively exhausted his claim through the DOT's Equal Employment Opportunity procedures, id., ¶¶ 18-23, he now brings suit here, raising counts of racial discrimination and retaliation in violation of Title VII against the FAA alone, id., ¶¶ 106-123, and one of retaliation in violation of the First Amendment against only Tisdall. Id., ¶¶ 124-129. Tisdall here moves to dismiss this last claim on the ground that Title VII provides the exclusive and preemptive administrative and judicial scheme for redress of federal-employment discrimination. See MTD at 1.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." In evaluating Defendants' Motion to Dismiss, the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) ) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C.Cir.2005). The notice-pleading rules are "not meant to impose a great burden upon a plaintiff," Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and he must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, 127 S.Ct. 1955, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court need not accept as true "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)). For a plaintiff to survive a 12(b)(...