                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
BOBBY OUTLAW,                    )
                                 )
               Plaintiff,        )
                                 )
          v.                     ) Civil Action No. 13-934 (EGS)
                                 )
JEH JOHNSON,                     )
                                 )
               Defendant.        )
________________________________)

                          MEMORANDUM OPINION

     Plaintiff Bobby Outlaw brings this action against defendant

Jeh Johnson, the Secretary of the Department of Homeland

Security, alleging racial discrimination, retaliation, and the

creation of a hostile work environment, in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Defendant moves to dismiss plaintiff’s retaliation and hostile-

work-environment claims. Upon consideration of the motion, the

response and reply thereto, the applicable law, and the entire

record, the Court GRANTS defendant’s motion to dismiss.

I.     BACKGROUND

     Plaintiff, an African-American, has been employed by the

United States Secret Service since 1996. Compl. ¶¶ 1, 12. He

alleges that he was hired at an initial grade of GS-7, while

Caucasians with less experience were hired at GS-9. Id. ¶ 16.
    By 2000, Mr. Outlaw had been promoted to a GS-13 position. Id.

¶ 14. In 2009 and 2010, he applied for twenty-seven different

GS-14 positions, as well as a GS-13 position based in South

Africa. See id. ¶¶ 18–19, 21. Although he claims that he was

highly qualified for these positions, he was not selected for

any of them. Id. ¶¶ 23, 42–46.1

    Mr. Outlaw claims that he was not selected for discriminatory

reasons. See id. ¶¶ 15, 32, 45–46. Regarding the position in

South Africa, he claims that the official in charge of making

recommendations for filling the position—an African-American—

ranked Mr. Outlaw first, but the position was awarded to a less-

qualified Caucasian applicant. See id. ¶¶ 22–23. The officials

in charge of making recommendations for the GS-14 positions were

all Caucasian and Mr. Outlaw claims that their first choice was

always selected. See id. ¶¶ 24–25. Most of these positions were

filled by Caucasian applicants, all of whom were allegedly less

qualified than Mr. Outlaw. See id. ¶ 43. Mr. Outlaw also asserts

that the Secret Service’s promotion procedures and its

performance reviews are subjective. See id. ¶¶ 32–33.

    On May 18, 2010, plaintiff filed an equal-employment-

opportunity complaint, alleging racial discrimination. See EEO

1
  Plaintiff claims to have been denied one hundred GS-14
promotions since 2004. See Pl.’s Opp. to Mot. to Dismiss
(“Opp.”), ECF No. 12 at 4–5. Plaintiff, however, asserts that
the twenty-seven promotions discussed above are the only ones
“[a]t issue in this matter.” Id. at 5.

                                  2
Complaint, ECF No. 10-5 at 3.2 On February 28, 2013, an

administrative judge found that Mr. Outlaw “failed to establish

a prima facie case of race discrimination” and that the

Department of Homeland Security had proffered legitimate, non-

discriminatory reasons for each of the challenged decisions. See

Decision, ECF No. 10-7 at 11–12. The Department of Homeland

Security issued a final order affirming those findings on March

26, 2013. See Final Order, ECF No. 10-8.

    On June 20, 2013, Mr. Outlaw filed this lawsuit, alleging that

he was: (1) discriminated against on the basis of his race, (2)

retaliated against for engaging in protected activity, and (3)

subjected to a hostile work environment. See Compl. ¶¶ 47-94. On

January 10, 2014, defendant moved to dismiss or, in the

alternative, for summary judgment on the retaliation and

hostile-work-environment claims. See Def.’s Mot. to Dismiss

(“Mot.”), ECF No. 10. Plaintiff filed an opposition on February

18, 2014, in which he included a section entitled “Mr. Outlaw

Seeks Leave to Amend His Amended Complaint.” Opp. at 17.

Defendant filed a reply brief on March 20, 2014, and noted that

plaintiff neither submitted a proposed amended complaint nor a



2
  Plaintiff’s equal-employment-opportunity complaint, the
administrative judge’s decision regarding that complaint, and
the Department of Homeland Security’s final order affirming that
ruling, were attached to defendant’s motion to dismiss and are
mentioned to provide background information.

                                 3
motion for leave to amend his complaint. See Def.’s Reply in

Supp. of Mot. to Dismiss (“Reply”), ECF No. 14 at 2–3.

  On April 28, 2014, the Court entered an Order stating that it

could not consider plaintiff’s apparent request to amend his

complaint until he complied “with the requirements of Federal

Rules of Civil Procedure 7(b)(1) and 15(a) by filing a motion

for leave to amend his complaint” and “with Local Civil Rule

15.1” by submitting with his motion “‘an original of the

proposed pleading as amended.’” Minute Order of April 28, 2014.

The Court ordered Mr. Outlaw to “file his motion for leave to

file an amended complaint, along with a copy of his proposed

amended complaint, by no later than May 5, 2014.” Id. Plaintiff

did nothing until May 12, 2014, when he filed an Amended

Complaint without moving for leave. See Am. Compl., ECF No. 15.

On May 16, 2014, the Court struck the Amended Complaint without

prejudice. See Minute Order of May 16, 2014. Plaintiff did not

subsequently move for leave to amend. Defendant’s motion to

dismiss is therefore ripe for the Court’s decision.

II.   STANDARD OF REVIEW

  A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

                                4
defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quotation marks omitted). While detailed factual

allegations are not necessary, plaintiff must plead enough facts

to “raise a right to relief above the speculative level.” Id.

  When ruling on a Rule 12(b)(6) motion, the Court may consider

“the facts alleged in the complaint, documents attached as

exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court

must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.” Id. “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Recitals

of “the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

III. DISCUSSION

  Plaintiff concedes that Count Two of his Complaint should be

dismissed. See Opp. at 9. Accordingly, all that remains before

the Court is defendant’s argument that Count Three, plaintiff’s

                                5
hostile-work-environment claim, should be dismissed for failure

to exhaust administrative remedies and failure to state a claim.

Because plaintiff failed to state a claim, the Court need not

address whether he exhausted his administrative remedies.

  To bring an actionable hostile-work-environment claim, Mr.

Outlaw must establish that “the workplace is permeated with

discriminatory intimidation, ridicule and insult that is

sufficiently severe and pervasive to alter the conditions of

[his] employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation

marks and citations omitted). He must therefore establish that

“(1) he . . . is a member of a protected class; (2) he . . . was

subjected to unwelcome harassment; (3) the harassment occurred

because of the plaintiff’s protected status; (4) the harassment

was severe to a degree which affected a term, condition, or

privilege of employment; and (5) the employer knew or should

have known about the harassment, but nonetheless failed to take

steps to prevent it.” Peters v. District of Columbia, 873 F.

Supp. 2d 158, 189 (D.D.C. 2012).

  Plaintiff offers only bald legal conclusions in his attempt to

show that he was subjected to severe and pervasive harassment.

See Compl. ¶ 85 (asserting that he suffered “a persistent

pattern of severe and pervasive harassment” and was “routinely

humiliated” by supervisors); see also id. ¶¶ 86, 89–90

                                   6
(conclusorily invoking the terms “hostile work environment” and

“harassment”). These allegations parrot the legal standard and

cannot alone survive a motion to dismiss. See Iqbal, 556 U.S. at

678 (“recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice”).

  Nor did plaintiff provide factual context for his conclusory

allegations. Rather than alleging incidents or actions involving

“discriminatory intimidation, ridicule and insult,” Harris, 510

U.S. at 21 (quotation marks omitted), plaintiff incorporated,

without elaboration, the allegations of disparate treatment on

which he relies for his racial-discrimination claim. See Compl.

¶ 88 (“Defendant’s deliberate conduct of the adverse actions

referred to throughout this Complaint created a hostile and

abusive work environment.”). He thus relies solely on his

allegations that he was denied promotions, hired at a lower

initial grade, and given subjective job-performance reviews. See

id. ¶¶ 16–17, 23, 32–33. Plaintiff claims this is “a persistent

pattern of severe and pervasive harassment.” Id. ¶ 85.

  These allegations cannot alone support a hostile-work-

environment claim. Indeed, courts have been hesitant to find a

claim for hostile work environment when a “complaint contains no

allegations of discriminatory or retaliatory intimidation,

ridicule, or insult in [the plaintiff’s] day-to-day work

environment” and relies instead on incidents of allegedly

                                7
discriminatory “non-promotions and other performance-based

actions.” Laughlin v. Holder, 923 F. Supp. 2d 204, 219–20, 221

(D.D.C. 2013) (quotation marks omitted). Accordingly, another

Judge of this Court has held that the following allegations are

not “sufficiently severe or pervasive to state a plausible

hostile work environment claim”:

     [T]he FBI repeatedly failed to promote Plaintiff to
     positions for which she was qualified, interfered with
     her efforts to hire a Border Liason Officer, removed
     Major Case 186 from her supervision, manipulated her
     performance evaluations, denied her bonuses to which
     she was entitled, repeatedly pressured her to retire,
     interfered with her ability to fill a supervisory
     position . . . and interfered with her efforts to hire
     a Media Representative.

Id. at 221. Mr. Outlaw alleged far less, referring only to

promotion denials, a subjective performance review, and being

hired at a lower grade than Caucasian employees. Ultimately,

“mere reference to alleged disparate acts of discrimination . .

. cannot be transformed, without more, into a hostile work

environment.” Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94

(D.D.C. 2009) (quotation marks omitted) (dismissing claim which

alleged that plaintiff’s supervisors had, inter alia, “passed

him over for performance awards, lowered his performance

evaluations,” and denied him “a noncompetitive promotion” and “a

within-grade increase”).

  The D.C. Circuit has held that “a hostile work environment

claim is not rendered invalid merely because it contains

                                   8
discrete acts that the plaintiff claims . . . are actionable on

their own.” Brooks v. Grundmann, 748 F.3d 1273, 1278 (D.C. Cir.

2014) (quotation marks omitted). Nonetheless, the Circuit also

reaffirmed that “[a] plaintiff may not combine discrete acts to

form a hostile work environment claim without meeting the

required hostile work environment standard.” Id. (quotation

marks omitted). In other words, a plaintiff could state a

hostile-work-environment claim by relying on incidents of

allegedly discriminatory nonpromotions, but must allege facts

sufficient to show that those decisions were part of a severe

and pervasive pattern of harassment. See, e.g., Wise v.

Ferreiro, 842 F. Supp. 2d 120, 126–27 (D.D.C. 2012) (hostile-

work-environment claim survived a motion to dismiss, “if not by

much,” based on allegations that a supervisor used a racial

slur, as well as “myriad incidents ranging from threats of

discipline based on false accusations to being singled out and

excluded from trainings and award ceremonies and denied

promotions”). Plaintiff made no factual allegations from which

such a pattern may be inferred and the Court will not permit him

to “‘bootstrap’ his alleged discrete acts of discrimination . .

. into a broader hostile work environment claim.” Rattigan v.

Gonzales, 503 F. Supp. 2d 56, 81 (D.D.C. 2007).3


3
  Like plaintiff’s initial Complaint, the proposed amended
complaint—which was stricken from the record—simply asserted

                                9
IV.   CONCLUSION

  For the foregoing reasons, the Court GRANTS defendant’s motion

to dismiss Counts Two and Three of plaintiff’s Complaint. An

appropriate Order accompanies this Memorandum Opinion.

  SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          June 23, 2014




that the same incidents of disparate treatment created a hostile
work environment without elaboration or factual allegations that
could support a such a finding. See ECF No. 15 ¶¶ 11–46, 65–75.

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