Lee v. McDonough

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AVERY E. LEE, Plaintiff, v. DENIS R. MCDONOUGH, Secretary of Veterans Affairs, Defendant.

Civil Action No. 22-319 (RBW)

United States District Court, District of Columbia

August 19, 2024

MEMORANDUM OPINION

REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

The plaintiff, Avery E. Lee, proceeding pro se, brings this civil action against the defendant, Dennis R. McDonough in his official capacity as the Secretary of the United States Department of Veterans Affairs, asserting the following claims: (1) discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, see Complaint (“Compl.”) ¶¶ 38, 41-45, ECF No. 1; (2) discrimination and the creation of a hostile work environment based on his race, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, see id. ¶¶ 32-35, 39-40; (3) discrimination and retaliation in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633a(a), see id. ¶¶ 36-37; (4) discrimination based on his race, age, and disability, and retaliation in violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, see id. ¶¶ 46-51; and (5) discrimination based on his race, age, and disability in violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01, see id. ¶¶ 52-54. Currently pending before the Court is the Defendant's Motion to Dismiss (“Def.'s Mot.”), ECF No 16, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon careful consideration of the parties' submissions,^[1] the Court concludes for the following reasons that it must grant the defendant's motion.

I. BACKGROUND

A. Factual Background

The following allegations are derived from the plaintiff's Complaint, unless otherwise specified. The plaintiff is a “black[,] [sixty-five] year-old disabled [v]eteran” who “is [currently] employed as a [p]ainter . . . at the Veterans Affairs Medical Center [located in the District of Columbia.]” Compl. ¶¶ 1-2. “The [p]laintiff was hired by [the] Veterans Affairs Medical Center (‘VA Hospital') . . . on May 13, 2019,” id. ¶ 20, where he alleges he was discriminated against on the basis of his race, age, and disability, see id. ¶¶ 8-10. The plaintiff further alleges that the defendant “retaliated against [him] because he complained to management.” Id. ¶ 11.

More specifically, the plaintiff alleges that Timothy Gustafson-viz., the plaintiff's team leader-“embarked on a campaign to use his team leader position to discriminate, harass, annoy, and embarrass the [p]laintiff because the [p]laintiff is an elderly, disabled black male.” Id. ¶ 24. Gustafson allegedly “made persistent negative comments about [the plaintiff] being too ‘slow' when working and how [Gustafson] could do [the work] better and faster.” Id. Gustafson also allegedly told the plaintiff that he did not “deserve to be paid for the day.” Id. Furthermore, Gustafson allegedly “referenced [the plaintiff's] age in a memo dated April 9, 2021, stating that ‘I have been hanging drywall, finishing drywall, painting, and more since I was a [t]eenager[.] I am 47 years of age.'” Id. ¶ 25. Finally, Gustafson allegedly “took [the p]laintiff to various locations and said to [him:] ‘[L]ook what I have done, you need to speed up on your work. You [do not] deserve to be paid $200[ ] for the day.'” Id. ¶ 26.

The plaintiff further alleges that “favoritism was shown toward” “Bradley Maguire, a [white younger male,] who was hired after [the plaintiff][.]” Id., Exhibit (“Ex.”) 1 (Equal Employment Opportunity Commission Appeal Brief, filed July 14, 2021 (“EEOC Appellate Brief”)) at 29, ECF No. 1-1. More specifically, the plaintiff alleges that, unlike Maguire, he “was excluded in the decision making for new hires [and] was never given an opportunity to participate in the interviewing and hiring process for new applicants, which is age and racial discrimination.” Id., Ex. 1 (EEOC Appellate Brief) at 29. Furthermore, Maguire was allegedly left “in charge” on several occasions when the plaintiff's supervisor was away, id., Ex. 1 (EEOC Appellate Brief) at 29, and was “treated more favorabl[y]” than the plaintiff, id., Ex. 1 (EEOC Appellate Brief) at 31.

The plaintiff also alleges that he was subjected to a “hostile work environment” when another employee, Renee Jefferson, placed “hostile postings . . . outside [her] office door[,]” which he reported to management Id., Ex. 1 (EEOC Appellate Brief) at 30. Moreover, the plaintiff allegedly informed management that his “feet were in severe pain caused by worn work boots” and that he “had ordered new boots from [ ] Jefferson in May of 2020[,] but had not received them.” Id., Ex. 1 (EEOC Appellate Brief) at 30. Finally, the plaintiff alleges that on September 28, 2020, he was called into Jefferson's office, where she allegedly “stated in a very harsh tone[:] ‘[D]idn't I tell you I was going to order the shirts! '” Id., Ex. 1 (EEOC Appellate Brief) at 30. The plaintiff contends that he “allowed her to finish speaking and immediately left her office with no response.” Id., Ex. 1 (EEOC Appellate Brief) at 30.

The plaintiff filed a formal EEO complaint on April 18, 2021, alleging “age” and “race” discrimination. Id., Ex. 1 (Initial EEOC Complaint of Employment Discrimination, filed Apr. 18, 2021) at 11-12. On June 16, 2021, the EEOC issued an agency decision dismissing the plaintiff's “complaint of unlawful employment discrimination in violation of Title VII . . . and the Age Discrimination in Employment Act of 1967[.]” Id., Ex. 1 (EEOC Appeal Decision, filed Nov. 4, 2021) at 1. The plaintiff then appealed to the EEOC's Office of Federal Operations, and that office affirmed the agency's dismissal on November 4, 2021. Id., Ex. 1 (EEOC Appeal Decision, filed Nov. 4, 2021) at 1.

B. Procedural Background

The plaintiff filed his Complaint in this case on February 7, 2022. See Compl. at 1. On October 24, 2022, the defendant filed his motion to dismiss. See Def's Mot. at 1. In response, the plaintiff filed his opposition on December 12, 2022, see Pl.'s Opp'n at 1, and the defendant filed his reply in support of his motion on December 19, 2022, see Def.'s Reply at 1.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1)

“Federal courts are courts of limited jurisdiction[,]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt's jurisdiction[,]'” Morrow v. United States, 723 F.Supp.2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if it “lack[s] . . . subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Because “[i]t is to be presumed that a cause lies outside [the Court's] limited jurisdiction,” Kokkonen, 511 U.S. at 377, the plaintiff bears the burden of establishing that the Court has subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

“In deciding a [Rule] 12(b)(1) motion, the [C]ourt need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000); see Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'” Am. Nat'l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a [Rule] 12(b)(1) motion than in resolving a [Rule] 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F.Supp.2d at 13-14 (first and second alterations in original) (internal quotation marks omitted) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)).

B. Rule 12(b)(6)

A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

In evaluating a motion to dismiss under Rule 12(b)(6) “the Court must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). While the Court must “assume [the] veracity” of any “well-pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory...