Jackson v. Mayorkas

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KEVIN JACKSON, Plaintiff, v. ALEJANDRO N. MAYORKAS, Defendant.

Civil Action No. 23-2432 (LLA)

United States District Court, District of Columbia

September 27, 2024

MEMORANDUM OPINION AND ORDER

LOREN L. ALIKHAN UNITED STATES DISTRICT JUDGE

Plaintiff Kevin Jackson brings this action against Defendant Alejandro N. Mayorkas in his official capacity as Secretary of Homeland Security. Mr. Jackson alleges that his former employer, the Department of Homeland Security (“DHS”) subjected him to a hostile work environment on the basis of race, sex, and reprisal and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Pending before the court is the Secretary's motion to dismiss or, in the alternative, for partial summary judgment. For the reasons explained below, the court will grant the Secretary's motion to dismiss in part and deny it in part, and it will deny the Secretary's motion for summary judgment as moot.

I. Factual Background

In resolving the Secretary's motion, the court accepts the following factual allegations from Mr. Jackson's complaint as true. Ashcroft v. Iqbal, 556 U.S. 662 678 (2009).

Mr. Jackson is an African American man who worked as a GS-14 Management Analyst in DHS's Identity and Information Management Division (“IIMD”) from June 2017 to November 2020. ECF No. 1 ¶ 3. On July 6, 2017, his fifth day of work at IIMD, Mr. Jackson encountered his white, male co-worker, Evgeni Dobrev, in the restroom. Id. ¶ 24. At the time, Mr. Dobrev held a supervisory position at DHS, but he was not Mr. Jackson's supervisor. Id. ¶ 25. Mr. Dobrev stood in front of Mr. Jackson, “blocking his access to the towels, so that Mr. Jackson could not dry his hands,” and he “began interrogating Mr. Jackson and repeatedly asking him where his supervisor was.” Id. ¶¶ 26-27. Mr. Dobrev's tone was “aggressive” and “dismissive,” and his presence was “menacing.” Id. ¶ 28. Mr. Jackson, startled and confused, “held up his hands to signal to Mr. Dobrev that he should back off and responded that he did not know the answers to Mr. Dobrev's question[s].” Id. ¶ 30. Mr. Dobrev, “apparently playing some kind of game with Mr. Jackson,” then told Mr. Jackson that he knew where Mr. Jackson's supervisor was. Id. ¶ 31. Mr. Dobrev “continued to hold Mr. Jackson hostage while he talked to him about issues at work totally unrelated to [him].” Id. ¶ 33.

Later that same day, Mr. Jackson again encountered Mr. Dobrev in the restroom. Id. ¶ 34. Mr. Dobrev asked Mr. Jackson, in an accusatory tone, why he was using the third-floor men's room even though his office was on the second floor. Id. ¶¶ 35-36. Mr. Jackson initially thought that Mr. Dobrev was joking. Id. ¶ 37. But as Mr. Dobrev's questions “became increasingly persistent and intense,” Mr. Jackson became uncomfortable. Id. He responded that he had a right to use any restroom he wanted and exited the restroom. Id. ¶ 38. As Mr. Jackson walked back to his office, Mr. Dobrev followed him “with his eyes glued to Mr. Jackson's rear end.” Id. ¶¶ 39-41. When Mr. Jackson returned to his cubicle, Mr. Dobrev “walked slowly past Mr. Jackson's desk with a menacing and intimidating demeanor.” Id. ¶ 43.

Mr. Jackson immediately reported Mr. Dobrev's behavior, first to supervisor Magda Ortiz, and then to his first-level supervisor, Chris Walsh, and his second-level supervisor, Paul Johnson. Id. ¶¶ 45-48. Mr. Walsh and Mr. Johnson “strongly agreed” that Mr. Jackson and Mr. Dobrev needed to be separated, and Mr. Johnson said that he would speak to Mr. Dobrev about the situation. Id. ¶¶ 50-51.

Over the next several months, Mr. Jackson's co-worker, Darrell Enoch-the only other African American male employee in Mr. Jackson's branch-“began telling Mr. Jackson about the ways in which Mr. Dobrev, who was Mr. Enoch's first-line supervisor, had been sexually harassing him.” Id. ¶¶ 53-54. Mr. Dobrev “wrote words of a sexual nature to Mr. Enoch,” “gave Mr. Enoch female perfume samples and told Mr. Enoch he should choose one of the fragrances and wear it,” “talked about unzipped pants in Mr. Enoch's presence,” and “would get uncomfortably close to Mr. Enoch and breathe on him.” Id. ¶¶ 56-59. These reports “exacerbated Mr. Jackson's concerns for his job and his safety.” Id. ¶ 55. He began to leave the building to take bathroom breaks “despite rain, snow, and bitterly cold temperatures because he feared that Mr. Dobrev would assault him in one or more of the bathrooms in the [DHS] building.” Id. ¶ 62.

In November 2017, Mr. Enoch filed an Equal Employment Opportunity (“EEO”) complaint against DHS, “alleging that Mr. Dobrev was harassing him and creating a hostile work environment.” Id. ¶ 65. At some point, Mr. Jackson formally agreed to serve as a witness for Mr. Enoch. Id. ¶ 66.

In December 2017, Mr. Johnson invited Mr. Dobrev to a meeting with Mr. Jackson, “contrary to [Mr. Johnson's] earlier agreement” to separate the two, and despite the fact that there was “no reason for [Mr. Dobrev's] presence.” Id. ¶¶ 67-68. Mr. Jackson protested, and Mr. Johnson reiterated that he would talk to Mr. Dobrev. Id. ¶¶ 69-70.

In January 2018, Mr. Dobrev “held a loud conversation” with two colleagues in cubicles next to Mr. Jackson's. Id. ¶ 71. After saying a loud goodbye to his colleagues, Mr. Dobrev said, “and you, too, Kevin”-an interaction that Mr. Jackson claims violated DHS's “alleged no contact order” between the two men. Id. Mr. Jackson complained to Mr. Johnson, who again said that he would talk to Mr. Dobrev. Id. ¶ 72. Mr. Jackson further alleges that, “[c]ontrary to the DHS's Anti-Harassment Program . . . even after [he] had complained three times” about Mr. Dobrev's harassment, “DHS conducted no fact finding, did no investigation, spoke with no witnesses, and issued no reports.” Id. ¶ 73.

In mid-January 2018, the federal government closed due to a lapse in appropriations. See id. ¶ 74; ECF No. 36-1, at 4. Mr. Jackson was not informed that DHS was unaffected by the government shutdown, and he therefore did not report to work. ECF No. 1 ¶ 75. DHS management contacted Mr. Jackson to ask why he was not at work and ultimately required him to take a day of leave. Id. ¶¶ 76-77.

In April 2018, DHS promoted Mr. Dobrev and made him Mr. Jackson's acting second-line supervisor. Id. ¶ 80. The agency also changed Mr. Jackson's work duties: he was “removed from policy making and reassigned to clerical work,” which was “a severe diminution of his duties and responsibilities that was inconsistent with his knowledge and qualifications.” Id. ¶ 82. On April 19, 2018, Mr. Jackson requested that he be reassigned to a position outside of Mr. Dobrev's chain of command, but DHS refused. Id. ¶¶ 83-84.

Mr. Jackson contacted an EEO counselor on April 25, 2018, complaining of harassment and retaliation. Id. ¶ 85. He filed a formal EEO complaint on June 20, 2018. Id. ¶ 15. In his complaint, Mr. Jackson indicated that DHS had discriminated against him on two bases: race and “retaliation/reprisal for prior EEO activity.” ECF No. 36-6 (Ex. D), at 2. He included an addendum to the complaint, alleging that the agency had “engaged in an ongoing pattern and practice of discrimination . . . on the basis of race (African-American) and retaliation (for reporting and opposing discrimination).” Id. at 3. The Office of Federal Operations within the Equal Employment Opportunity Commission (“EEOC”) issued a decision in favor of the agency on June 2, 2022. ECF No. 1 ¶ 18. In the meantime, Mr. Jackson left DHS due to “significant emotional plan and suffering.” Id. ¶ 87.

II. Procedural History

Mr. Jackson timely filed this action on August 30, 2022, alleging that DHS had subjected him to a hostile work environment on the basis of sex (Count I), race (Count II), and reprisal (Count III), and retaliated against him (Counts IV and V), all in violation of Title VII.^[1] Id. ¶¶ 88-92; ECF No. 36-1, at 5. The Secretary moves to dismiss all counts pursuant to Federal Rule of Civil Procedure 12(b)(6) and alternatively moves for summary judgment on Counts IV and V. ECF No. 36.

III. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that are more than “‘merely consistent with' a defendant's liability” and that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 557); see Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (“Plausibility requires ‘more than a sheer possibility that a defendant has acted unlawfully.'” (quoting Iqbal, 556 U.S. at 678)). “A complaint survives a motion to dismiss even ‘[i]f there are two alternative explanations, one advanced by [the] defendant and the other advanced by [the] plaintiff, both of which are plausible.'” Banneker Ventures, LLC, 798 F.3d at 1129 (alterations in original) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).

In deciding a motion under Rule 12(b)(6), a court must consider the whole complaint, accepting all factual allegations in the complaint as true, “even if doubtful in fact,” and construing all reasonable inferences in the plaintiff's favor. Twombly, 550 U.S. at 555. However, a court need not “accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Nurriddin v Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (alterations in original) (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271,...