                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    PAUL BISHOP,
                         Plaintiff,

                         v.
                                                      Case No. 1:19-cv-1836 (TNM)
    UNITED STATES DEPARTMENT OF
    AGRICULTURE,
                  Defendant.


                                      MEMORANDUM OPINION

         Paul Bishop, proceeding pro se, brings this employment discrimination suit against the

U.S. Department of Agriculture (“USDA”) under Title VII of the Civil Rights Act of 1964, as

amended (“Title VII”), 42 U.S.C. § 2000e et seq. The USDA moves for judgment on the

pleadings. Def.’s Mot. at 1, 1 ECF No. 18. For the reasons below, the Court will grant the

USDA’s motion. 2

                                        I. BACKGROUND

         Bishop is a black male who applied for the position of Plant Protection and Quarantine

Officer with the USDA. See Compl. ¶¶ 1(A)-(B), 3, 6, 9, ECF No. 1. 3 He alleges that he was

qualified for the position, yet the USDA refused to hire him because of his race and sex in

violation of Title VII. See id. ¶¶ 1(A)-(C), 7, 8. He demands monetary and punitive damages “to



1
    All page citations refer to the page numbers that the CM/ECF system generates.
2
  Also before the Court are Bishop’s motions to strike the USDA’s Answer and to stay
proceedings. Pl.’s Mots., ECF No. 21. These motions lack merit and will be denied.
3
  Bishop did not number the paragraphs of his Complaint. The USDA “has grouped the
Complaint’s allegations into grouped ‘blocks’ and then added numbers to the left of each
blocked text.” Def.’s Mot. at 6 n.2; see id. Ex. A, ECF No. 18-1. The Court adopts the USDA’s
paragraph number designations.
                                                 1
cover a life time of lost earning from salary, promotion, raises and career opportunities at the

GS-11 level lost thorough [sic] the actions of the USDA.” Id. ¶ 21.

                                           II. DISCUSSION

    A. Federal Rule of Civil Procedure 12(c)

        “After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The USDA so moves.

        The Court reviews the USDA’s motion using “essentially the same [standard] as that for

motions to dismiss under Rule 12(b)(6).” Sanders v. District of Columbia, 601 F. Supp. 2d 97,

99 (D.D.C. 2009). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient

factual allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility requires that a complaint raise “more

than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). Pleading facts that are “merely consistent with” a defendant’s liability “stops short

of the line between possibility and plausibility.” Twombly, 550 U.S. at 545–46.

        “The moving party must demonstrate its entitlement to judgment in its favor, even though

the court evaluating the 12(c) motion will accept as true the allegations in the opponent’s

pleadings, and as false all controverted assertions of the movant.” Dist. No. 1, Pac. Coast Dist.,

Marine Eng’rs Beneficial Ass’n v. Liberty Mar. Corp., 933 F.3d 751, 760–61 (D.C. Cir. 2019)

(cleaned up). Further, “[w]hen resolving a Rule 12(c) motion, the court must not rely on facts

outside of the pleadings, must construe the complaint in a light most favorable to the plaintiff,

and must accept as true all reasonable factual inferences drawn from well-pleaded factual

allegations.” Brown v. District of Columbia, 249 F. Supp. 3d 439, 442 (D.D.C. 2017) (cleaned




                                                     2
up). “Legal conclusions masquerading as factual allegations are not enough to survive a motion

to dismiss.” Id. (citing Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)).

        Courts construe a pro se litigant’s submissions liberally. See Erickson v. Pardus, 551

U.S. 89, 94 (2007). In so doing, the Court considers not only the Complaint itself but also a pro

se litigant’s opposition to a dispositive motion. See Brown v. Whole Foods Mkt. Grp., Inc., 789

F.3d 146, 152 (D.C. Cir. 2015) (noting the district court’s obligation “to consider a pro

se litigant’s complaint ‘in light of’ all filings, including filings responsive to a motion to

dismiss”). But even judged by this lenient standard, Bishop’s Complaint leaves much to be

desired. It is long on legal conclusions and short on factual allegations.

   B. Bishop Fails to State a Prima Facie Discrimination Case

       “All personnel actions affecting . . . applicants for employment . . . in executive agencies

. . . shall be made free from any discrimination based on race [or] sex[.]” 42 U.S.C. § 2000e-

16(a). When, as here, a plaintiff does not present direct evidence of discrimination, a Title VII

claim typically is analyzed under the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Gilliard v. Gruenberg, 302 F. Supp. 3d

257, 269–70 (D.D.C. 2018). A plaintiff first “establishes a prima facie case of discrimination by

showing that [he]: 1) is a member of a protected class; 2) suffered an adverse employment

action; and that 3) the unfavorable action gives rise to an inference of discrimination.” Nurriddin

v. Bolden, 818 F.3d 751, 758 n.6 (D.C. Cir. 2016). Once he establishes his prima facie case, the

burden then shifts to the employer to “articulate a legitimate, nondiscriminatory reason for its

actions, after which the plaintiff has the opportunity to show that the employer’s stated reason

was pretextual.” Id. at 758.




                                                   3
       In the USDA’s view, Bishop merely “asserts his belief that because he has to date not

obtained a position at USDA it must, without more, be because USDA discriminates against

black males and/or makes processing mistakes in its hiring practices which therefore must be on

account of his race and sex.” Def.’s Mot. at 7. It argues that Bishop’s employment

discrimination claim fails for two reasons. First, the Complaint fails to allege “a plausible set of

facts to raise an inference of unlawful race or sex discrimination or any other basis from which

the [USDA] may be found liable of discrimination under Title VII.” Id. Second, Bishop’s

“failure to identify the position or positions at USDA for which he applied and was not hired”

means that his claim “fails as a matter of law.” Id.

       The Court does not rely on this second argument. Bishop identifies two positions for

which he applied in May 2018 and was not hired: the USDA found Bishop not qualified for a

GS-11 position and did not select him for a GS-9 position. See Compl. ¶ 22; see id. Exs. at 12–

13, ECF No. 1-1; Pl.’s Opp’n at 8–9, ECF No. 20. But even though Bishop identified these

positions, his Complaint cannot survive the USDA’s Rule 12(c) motion.

       “The Court must be mindful . . . that the McDonnell Douglas test is an evidentiary

standard, not a pleading requirement, . . . and an employment discrimination plaintiff is not

required to plead every fact necessary to establish a prima facie case to survive a motion

to dismiss.” Hylton v. Watt, No. 17-cv-2023, 2018 WL 4374923, at *2 (D.D.C. Sept. 13, 2018)

(cleaned up). But the plaintiff still must allege facts that if accepted as true would make the

discrimination claims plausible. See, e.g., Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70

(D.C. Cir. 2015).

       Bishop has not done this. He manages only to allege, in conclusory fashion, that he is a

member of a protected class who suffered an adverse employment action because of his race.


                                                  4
There are no factual allegations to support these assertions, and without them Bishop’s Title VII

claim fails. See, e.g., Beaulieu v. Barr, No. 15-cv-896, 2019 WL 5579968, at *4 (D.D.C. Oct.

29, 2019) (dismissing Title VII claim where “[t]he Court is . . . left with no allegations—save for

the bare assertion that [plaintiff] was the only Hispanic female assigned to her unit—that allow

the Court to infer that Defendants were motivated by discrimination based on [her] national

origin or gender when demoting her and reducing her pay”); Wu Xiaofeng v. Pompeo, No. 15-cv-

1040, 2019 WL 1697868, at *11 (D.D.C. Apr. 17, 2019) (dismissing national origin

discrimination claim where complaint “does not allege any facts to link [plaintiff’s] failure to

receive promotions to her national origin or accent”).

                                       III. CONCLUSION

       The Court finds that Bishop’s Complaint fails to allege an employment discrimination

claim under Title VII. For these reasons, the USDA’s motion for judgment on the pleadings will

be granted. A separate Order will issue.

                                                                           2020.06.09
                                                                           11:43:43 -04'00'
Dated: June 9, 2020                                   TREVOR N. McFADDEN
                                                      United States District Judge




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