Moses v. Kerry

110 F.Supp.3d 204

William R. Moses, Plaintiff,

v.John F. Kerry, in official role as Secretary of State, Defendant.

Civil Action No.: 13–00619 (RC)

United States District Court, District of Columbia.

Signed June 23, 2015

John M. Shoreman, McFadden & Shoreman, LLC, Washington, DC, for Plaintiff.

Alexander Daniel Shoaibi, Carl Ezekiel Ross, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In this action, a former State Department employee contends that his termination amid false allegations of sexual harassment constituted unlawful discrimination on the basis of both race and age. Because the plaintiff has not proffered evidence that either his race or his age caused the actions that aggrieved him, the Court grants the defendant's motion for summary judgment.

II. FACTUAL BACKGROUND¹

In early 2011, William R. Moses, an African–American male then aged sixty-three, began a temporary duty assignment as a Foreign Affairs Officer in the U.S. Embassy in Nairobi, Kenya. See Moses EEO Investigative Aff., Pl.'s Ex. A 00063–75.² In this capacity, Mr. Moses was assigned to the State Department's Bureau of International Narcotics and Law Enforcement Affairs, Office of Criminal Justice Assistance and Partnership ("INL/CAP"). See EEO Investigation Report, Pl.'s Ex. A 00001. His primary task was to develop a training program for the Kenya Police Reform Implementation Committee ("PRIC"). See Moses EEO Investigative Aff., Pl.'s Ex. A 00064–65. Mr. Moses performed this role well, see id. at 00065; Redmon Dep. at 9, Pl.'s Ex. D, ECF No. 31–2, and his superiors sought to extend his ninety-day assignment by an additional ninety days, see Moses EEO Investigative Aff., Pl.'s Ex. A 00066.

By late February 2011, however, Mr. Moses's superiors had begun to doubt his suitability for his post. Reports surfaced that Mr. Moses had inappropriately touched a Kenyan woman during a meeting with Kenyan police officials and had sexually harassed an American official of the U.S. Embassy. See Moran email of Feb. 23, 2011, Pl.'s Ex. A 00148. Around the same time, there arose concerns about Mr. Moses's failure to make progress on police reform efforts and to gain the respect of Kenyan officials. See id. Over a series of emails, INL/CAP Office Director Erin Barclay, Mr. Moses's rating officer Roger Moran, and the Embassy's Deputy Chief of Mission Lee Brudvig discussed the best course of action. See Barclay EEO Investigative Aff., Pl.'s Ex. A 00109–10; Moran EEO Investigative Aff., Pl.'s Ex. A 00099; Moran email of Feb. 25, 2011, Pl.'s Ex. A 00137–38; Barclay–Moran–Brudvig emails, Pl.'s Ex. A 00134–35, 139–40, 145–49, 153. On February 25, 2011, Ms. Barclay indicated to Mr. Moran that she was "strongly considering moving towards separation/termination" on the basis of Mr. Moses's "conduct." Barclay email of Feb. 25, 2011, Pl.'s Ex. A 00135.

The next day, February 26, 2011, Mr. Moses received a phone call from Ms. Barclay, who informed him that a serious problem had arisen and that he needed to return promptly to Washington, D.C. See Moses 2014 Dep. at 53:1–5, 66:1–3; Barclay EEO Investigative Aff., Pl.'s Ex. A 00109–10.³ Subsequently, in an email to Mr. Moran and Mr. Brudvig, Ms. Barclay concluded that she would "mov[e] forward with disciplinary procedures based on [Mr. Moses's] performance." Barclay email of Feb. 28, 2011, Pl.'s Ex. A 00153. In her view, because the sexual harassment allegations were a matter for the Embassy to resolve, she would be "unable to use [his] EEO conduct for [her] purposes Stateside." Id.

On March 2, 2011, Ms. Barclay met with Mr. Moses in Washington, D.C., and informed him that she had learned of allegations that he had sexually harassed certain individuals.See Moses 2014 Dep. at 71:3–4, 72:11–18, 75:18–19; Barclay email of Mar. 3, 2011, Pl.'s Ex. A 00157–58. She instructed him to vacate his cubicle and move to another building immediately. See Moses 2014 Dep. at 171:17–22. Within a month, Mr. Moses was terminated. See Termination letter of Mar. 30, 2011, Pl.'s Ex. A 00072–73.

According to Mr. Moses, the false sexual harassment allegations were "orchestrated" by Jeffrey Lischke, the Regional Security Officer at the U.S. Embassy in Nairobi. Moses 2012 Dep. at 48:2–3; see also Lischke Decl., Pl.'s Ex. J, ECF No. 32–2. Mr. Moses had developed a relationship with Mr. Lischke's girlfriend and, further complicating matters, had exposed a lie told to the girlfriend by Mr. Lischke. See Moses 2014 Dep. at 79:2–84:17, 115:1–14. By Mr. Moses's account, Mr. Lischke responded by blackmailing a female Embassy employee into fabricating the sexual harassment allegations; in exchange for her assistance, he overlooked her prior breach of security protocols. See id. at 88, 101.

In June 2011, Mr. Moses filed an Equal Employment Opportunity ("EEO") complaint, alleging that he had suffered discrimination based on race and age. See EEO Investigation Report, Pl.'s Ex. A 00001. The following month, both claims were accepted for investigation. See Acceptance Letter of July 13, 2011, Def.'s Ex. A, ECF No. 26–3. During the course of the investigation, Ms. Barclay submitted an affidavit stating that Mr. Moses was terminated for the "sole reason" of unsatisfactory work performance. See Barclay EEO Investigative Aff., Pl.'s Ex. A 00111. In particular, she explained that Mr. Moses had "fail[ed] to develop good work relationships with the Kenyan Police" and that "key Kenyan police officials had not accepted Mr. Moses and, at times, failed to include him in important international meetings." Id. at 00110. Mr. Moran, however, filed his own affidavit averring that Mr. Moses was terminated "[b]ecause of repeated acts of sexual harassment and unacceptable behavior toward women in the course of his assigned work." Moran EEO Investigative Aff., Pl.'s Ex. A 00100. In January 2013, an Equal Employment Opportunity Commission ("EEOC") administrative judge granted summary judgment on Mr. Moses's claims, reasoning that he had failed to proffer evidence that Ms. Barclay's non-discriminatory, performance-based reasons for his termination were pretextual. See EEOC Decision, Def.'s Ex. G, ECF No. 26–9.

In May 2013, Mr. Moses brought this action against Secretary of State John F. Kerry in his official capacity ("Defendant"). See Compl. 1, ECF. No. 1. In his amended complaint, he alleges that his termination constituted discrimination on the basis of race and age, 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., respectively. See First Am. Compl. ¶¶ 9–30, ECF No. 18. By way of relief, Mr. Moses asks this Court to declare that his employer's actions were unlawful, to order his reinstatement, and to award monetary relief including back pay and compensatory damages. See id. at 6–8. Following discovery, Defendant moved for summary judgment, and the motion is now ripe for decision. See Def.'s Mot. Summ. J., ECF No. 26.

III. LEGAL STANDARD

A court may grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).

IV. ANALYSIS

In contending that his dismissal constituted unlawful discrimination on the basis of race and age, Mr. Moses invokes the protections of Title VII and the ADEA, respectively. See First Am. Compl. ¶¶ 9–30. As explained below, however, because Mr. Moses has not proffered any evidence that he suffered discrimination on the basis of his race or age, Defendant is entitled to summary judgment on both of Mr. Moses's claims.

A. Legal Framework

Title VII provides that "[a]ll personnel actions affecting employees ... in executive agencies ... shall be made free from any discrimination based on race...." 42 U.S.C. § 2000e16. Similarly, the ADEA provides that "[a]ll personnel actions affecting employees ... who are at least 40 years of age ... in executive agencies ... shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). Proscribing discrimination in nearly identical language, Title VII and the ADEA make it illegal "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's" protected status–including race or age, under the respective statutes. 42 U.S.C. § 2000e–2(a)(1) ; see also 29 U.S.C. § 623(a)(1).⁴

Where a Title VII or ADEA plaintiff proffers only indirect evidence of discrimination at summary judgment, courts apply the three-part burden-shifting framework of McDonnell Douglas Corp. v. Green . See Taylor v. Small, 350 F.3d 1286, 1292 (D.C.Cir.2003) (Title VII); Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004) (ADEA). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination; the employer then must articulate a legitimate, nondiscriminatory reason for its action; and finally, the plaintiff must show that the employer's reason was a pretextual cover for discrimination. 411 U.S. 792, 802–805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under both Title VII and the ADEA, a plaintiff makes out a prima facie case of disparate-treatment...