UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BARRY L. MOORE, )
)
Plaintiff, )
)
v. ) Civil Case No. 10-1470 (RJL)
)
0FFICE 0F THE ARCHITECT OF )
THE CAPITOL, ) ,
) F I L E D
D f d .
e en ant g DEE 14 mn
47,. caerk, u.s. nismcr a Bankruprcy

MEMORANDUM OPIN[GN Col|rfs for the District of Co!umb|a
(December!z: , 2()11)[#11]

Plaintiff Barry L. Moore ("plaintift" or "Moore"’) brought an action against
defendant Office of the Architect of the Capitol ("defendant") alleging eight separate
counts of violations of the Congressional Accountability Act ("CAA"). In the first four
counts, plaintiff alleges unlawful discrimination based on plaintiff s race and age. In the
second four counts, plaintiff alleges unlawful retaliation based on his opposition to
discriminatory employment practices by defendant. Defendant has moved to dismiss
only those counts alleging unlawful retaliation (Counts V-VIII). After due consideration
of the law and pleadings, defendant’s Motion to Dismiss Counts V through VIII is
GRANTED.

RELEVANT BACKGROUND
Plaintiff, a white male over the age of forty, began working as the Day Shift

Supervisor of the Electric Shop of the House Office Buildings on April 13, 2009.

Complaint ("Compl.") 11 8. ln this new role, plaintiff was subject to a one-year period of
probation. 1d.11 l0.

As of May 2009, plaintiffs supervisors were as follows: John Adeyemi, General
Foreman of the Electric Shop-first line supervisor; Dan Murphy, Assistant
Superintendent of the House Office Buildings--second line supervisor; Tom Carroll,
Deputy Superintendent of the House Office Buildings-'-third line supervisor; and
William Weidemeyer, Superintendent of the House Office Buildings-fourth line
supervisor. 1d.1111 l3, l5.

On November 4, 2009, plaintiff was rated as ‘“Fully Successful" on his mid-year
performance evaluation. Compl. 11 l6. On January 29, 2010, plaintiff was again rated as
"Fully Successful" on his end-of-the-year performance evaluation. Id. 11 l7.

On an unspecified date, plaintiff rated three employees who reported to him as
"Outstanding" on their respective end-of-the-year performance evaluations. Ia'. 1111 50~51;
67-68. Two of the employees_]ohn Rye and Steve Wigglesworth-are white males
over the age of forty, and the other employee-Denis Herrera~is a Guatemalan male
over the age of forty. Id. 1111 50, 67. Plaintiff timely submitted the evaluations to
Assistant Superintendent Murphy, who rejected the "Outstanding" ratings given to the
three employees. Ia’. 1111 52-54, 69-70. Assistant Superintendent Murphy, in turn,
forwarded the evaluations to his supervisor, General Foreman Adeyemi, who also
rejected the plaintiffs "Outstanding" ratings. Ia’. 1111 57-58, 72-73.

Plaintiff resubmitted the performance evaluations to Assistant Superintendent

Murphy, who again rejected the "Outstanding" ratings. Ia’. 1111 59-6(), 74-75. Assistant

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Superintendent Murphy forwarded the evaluations to General Foreman Adeyemi, who
also again rejected the "Outstanding" ratings. Ia’. 1111 61-62, 76-77. General Foreman
Adeycmi advised plaintiff to either elaborate on the information in support of the
"()utstanding" ratings or to change the rating to "Fully Successful." ld. 1111 65, 78.
Plaintiff changed the ratings to "Fully Successful." Id. 1111 66, 79.

On March l2, 2010, Stephen Ayers, the Acting Architect of the Capitol, placed
plaintiff on paid administrative leave until the end of plaintiffs tour of duty (March 26,
201()), at which time plaintiff would be terminated. Id. 11 l8. Plaintiff s termination was
based on his supervisors’ "dissatisfaction" with plaintiffs perforrnance. Ia'. 11 19.

ln Counts V through VIII of the complaint, plaintiff alleges that he was unlawfully
terminated in retaliation for his opposition to defendant’s discriminatory employment
practices (based on race, age, and national origin)-specifically, for opposing defendant’s
refusal to accept "Outstanding" ratings on performance evaluations for two white men
over the age of forty and a Guatemalan man over the age of forty. Id. 1111 100-123.

On August 3(), 2()10, plaintiff filed this lawsuit against his employer, AOC, for
discriminatory and retaliatory employment practices in violation of the CAA. See Docket
Entry l. On March 25, 201 l, defendant moved to dismiss those counts alleging
retaliation (Counts V-VlIl). See Docket Entry 1 l.

STANDARD OF REVIEW

A court may dismiss a complaint, or any portion of it, for failure to state a claim

upon which relief may be granted. Fed. R. Civ. P. l2(b)(6). A court considering a

motion to dismiss, however, may only consider "the facts alleged in the complaint, any

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documents either attached to or incorporated in the complaint and matters of which [the

court1 may take judicial notice." E.E.O.C. v. St. Francis Xavz'er Parochial Sch., 117 F.3d

621, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a complaint must "plead [ ]

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949

(2009). In evaluating a Rule 12(b)(6) motion, the court construes the complaint "in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from

the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal

quotation marks omitted). However, factual allegations, even though assumed to be true,

must still "be enough to raise a right to relief above the speculative level." Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). l\/loreover, the court "need not accept inferences
drawn by plaintiff[] if such inferences are unsupported by the facts set out in the
complaint. Nor must the court accept legal conclusions cast in the form of factual
allegations." Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
LEGAL ANALYSIS
To establish a prima facie case of retaliation, plaintiff is required to allege that

defendant retaliated against him for opposing a discriminatory employment practice by
defendant against those he was supervising. See Crawford v. Metro. Gov ’t of Nashvz'l/e
and Davia’son Counly, Tennessee, 555 U.S. 271, 274 (2009).' To oppose a

discriminatory employment practice, conduct that is statutorily protected, plaintiff is

l C1aims arising under the CAA’s anti~retaliation provision are analyzed under the
framework and standards governing Title VIl’s anti-retaliation provision. Herbert v.
Architect ofthe Capirol, 766 F. Supp. 2d 59, 74 n.13 (D.D.C. 2011).

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required 10 communicate to his employer that he believes the employer’s conduct is, in
fact, discriminatory. Ia’. 274-75 (holding that plaintiff must make known to his employer
his belief that the employer’s conduct is discriminatory to "oppose" a discriminatory
employment practice); see Beeck v. Fed. Express Corp., 81 F. Supp. 2d 48, 55 (D.D.C.
2000). Plaintiff, however, has failed to allege that he ever communicated to his
supervisors that he was opposing what he believed to be discriminatory conduct by them.
Specifically, plaintiff never told his supervisors that he believed their rejection of his
"Outstanding" ratings was the result of discrimination based on race, age, or nationality.
Indeed, plaintiff concedes that he was silent as to his opposition to defendant’s allegedly
discriminatory practices. See Pl.’s Opposition ("Opp’n"), July 22, 2011, at 13-14.
Therefore, because plaintiff has failed to allege facts sufficient to state a prima facie case
of retaliation, defendant’s Motion to Dismiss Counts V through VIII must be
GRANTED?
CONCLUSION

Thus, for all of the foregoing reasons, Defendant’s Motion to Dismiss, ECF No.

11, as to Counts V-VIII is GRANTED. An appropriate Order will accompany this

memorandum opinion. '

:Zar»z&?-a~/
RICHARQ_). LEoN
United States District Judge

2 To the extent that defendant is also moving to dismiss paragraphs 31 through 49 of the
complaint, see Def.’s l\/Iot. to Dismiss at 6-7, defendant’s Motion to Dismiss as to those
paragraphs is denied.

