                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA

HIRAM ANDRADES,                      )
                                     )
      Plaintiff,                     )
                                     )
      v.                             )                    No. 11-cv-305 (RCL)
                                     )
ERIC HOLDER, Attorney General,       )
                                     )
      Defendant.                     )
____________________________________ )


                                MEMORANDUM OPINION

       Before the Court are the following motions: defendant’s Motion [9] to Dismiss or,

Alternatively, for Summary Judgment; defendant’s Motion [16] to Dismiss in Part or,

Alternatively, for Summary Judgment in Part; plaintiff’s Motion [25] for Leave to File a Second

Amended Complaint; and plaintiff’s Amended Motion [26] for Leave to File a Second Amended

Complaint. Having carefully considered the motions, the oppositions, the replies and other

responsive papers, the entire record in this case, and the applicable law, the Court will deny

defendant’s Motion [9] to Dismiss as moot, grant defendant’s Motion [16] to Dismiss in Part,

and deny both plaintiff’s Motion [25] for Leave to File a Second Amended Complaint and his

Amended Motion [26] for Leave to File a Second Amended Complaint. A review of the

background of the case, the governing law, the parties’ arguments, and the Court’s reasoning in

resolving those arguments follows.

I.     BACKGROUND

       The following facts are undisputed. Hiram Andrades is an employee of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“ATF” or “Agency”). Def.’s SMF [9] 1 ¶1. In

April 2009, while employed as a GS-14 Program Manager in the Agency’s Office of

Professional Responsibility and Security Operations in Washington, D.C., id. at 1 ¶4, Andrades
was randomly assigned to conduct an inspection of the Administration and Ethics Division of the

Office of Chief Counsel. Def.’s SMF [16] 2 ¶3. However, at that time, the Administration and

Ethics Division was representing the Agency in an EEO case brought by Andrades. Id. at 2 ¶4.

As a result, that division was involved in propounding and responding to discovery, and relevant

documents were being kept in its offices. Id. Associate Chief Counsel Eleaner Loos became

concerned about the appearance of a conflict of interest, and raised those concerns with Acting

Chief of Staff Anthony Torres. Id. at 2 ¶5. After some deliberations, it was decided that

Andrades would be reassigned to lead an inspection of the Disclosure and Forfeiture Division

instead. Id. at 2 ¶ 6.

        In May 2009, Andrades responded to this reassignment by seeking leave to amend his

pending EEO complaint. Id. at 3 ¶¶8, 9. That complaint related to Andrades’ allegation that,

sometime in 2008, ATF discriminated against him by not selecting him for a GS-14 Supervisory

Criminal Investigator position. Id. He sought to include in that earlier EEO complaint an

allegation that the Agency had retaliated against him by reassigning him to inspect the

Disclosure and Forfeiture Division. Id. at 3 ¶9.

        The next relevant incident began that same month, when ATF requested volunteers for an

open GS-14 Divisions Operations Officer (“DOO”) position in the Agency’s Washington Field

Division. Def.’s SMF [9] at 1 ¶2. Andrades asked that his name be considered for the transfer.

Id. However, in July 2009, ATF decided against filling the DOO position from a volunteer list,

and so advertised it and solicited applications instead. Id. at 2 ¶6. Andrades applied for the

position on July 31, 2009, a couple of days after it was announced. Id. at 2 ¶7. He also allegedly

learned, that same day, that his name had been “omitted” or “removed” from the now-defunct

volunteer list. Am. Compl. [10] ¶53. Shortly thereafter, he sought EEO counseling, alleging that

ATF had retaliated against him when it allegedly removed, or omitted, his name from the DOO
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position volunteer list. Compl. [1], Ex. 2 [1-2] at 2. In early September 2009, Andrades was

selected for the DOO position. Def.’s SMF [9] at 2 ¶ 8.

       In February 2011, after failing to obtain the relief he sought at the administrative level,

Andrades filed suit in this Court 1 against Attorney General Eric Holder—who is the head of the

Department of Justice, of which ATF is a sub-agency—as is required by Title VII. Compl. [1] 1,

Feb. 4, 2011; see 42 U.S.C. § 2000e-16(c). In his initial Complaint, Andrades brought only a

single count, alleging that ATF violated Title VII by “secretly remov[ing] or omitt[ing]” his

name from the list of volunteers for the DOO position in 2009. Compl. [1] 1–2, 6. Despite the

fact that this alleged omission or removal was ultimately of no consequence because the list was

never used, and despite the fact that Andrades was, only two months later, selected for that very

position, he alleged in his Complaint that he suffered “adverse physical and emotional

manifestations,” including “pain and suffering,” from a “pattern of ongoing acts of

discrimination” by ATF.       Id. at 10.    Andrades sought injunctive relief and compensatory

damages, plus interest and costs. Id. at 11.

       In May 2011, ATF filed a Motion to Dismiss or, Alternatively, for Summary Judgment,

seeking dismissal of the Complaint’s only count. Def.’s Mot. Dismiss [9] 1, May 12, 2011.

ATF argues in that Motion that its alleged failure to include Andrades on the volunteer list, and

apparent “delay” in transferring Andrades laterally to the DOO position, were insufficient to

constitute adverse employment actions for purposes of a retaliation claim under Title VII. Def.’s

Mem. [9] 5–10. ATF also argued that any harm Andrades alleged he had suffered was cured

when he got the job. Id. However, before responding to ATF’s Motion to Dismiss, Andrades

filed an Amended Complaint, adding a few additional counts. Am. Compl. [10] 1, May 16,

2011. Count 3 of his Amended Complaint contains the same allegation as the only claim in his
1
 This case was reassigned by consent from the Honorable Beryl A. Howell to this Court in February 2012.
Reassignment [31] 1, Feb. 3, 2012.
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initial Complaint—namely, that ATF retaliated against him by “omitt[ing] or remov[ing]” his

name from the DOO position volunteer list in 2009. Id. ¶67. However, Counts 1, 2, and 4 are

new. Count 1 is a discrimination claim, relating to his non-selection, in 2008, to a Supervisory

Criminal Investigator position. Id. at ¶62–63. Count 2 is a retaliation claim relating to his 2009

reassignment from an inspection of the Administration and Ethics Division to an inspection of

the Disclosure and Forfeiture Division. Id. ¶64–65. Count 4 is a hostile work environment

claim, based upon the same acts that compose his other claims. Id. ¶70–79.

       In response to Andrades’ Amended Complaint, ATF filed a Motion to Dismiss in Part,

seeking dismissal only of Counts 2, 3, and 4. Def.’s Mot. Dismiss in Part [16] 1, Aug. 17, 2011.

ATF has elected not to move to dismiss Count 1 at this time, believing that additional factual

development is required to properly evaluate it. Def.’s Mem. [16] 1–2, 1 n.1. As to Count 3 of

Andrades’ Amended Complaint—which is identical to the only count in Andrades’ initial

Complaint—ATF has incorporated its arguments from its first Motion to Dismiss. Id.

II.    STANDARD OF REVIEW

       A motion to dismiss is appropriate when a complaint fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). To overcome this hurdle, 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 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) (internal quotations omitted). The

Court must “accept as true all of the factual allegations contained in the complaint,” Atherton v.

District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). However, the Court may not “accept inferences drawn by plaintiffs

if such inferences are unsupported by the facts set out in the complaint.” Id. In other words,
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“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1950 (2009); see also Atherton, 567 F.3d at 681. Finally, since

Andrades is representing himself in this case, his Amended Complaint must be liberally

construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

III.   DEFENDANT’S MOTION [9] TO DISMISS

       As an initial matter, since ATF’s initial Motion to Dismiss seeks dismissal of a

superseded pleading, the Court will deny that motion as moot. See McKeithan v. Boarman, No.

11-0086, 2011 WL 2669060, at *1 (D.D.C. July 7, 2011). However, the Court has considered

the arguments in that Motion, alongside Andrades’ responses, in the context of its review of

Count 3 of the Amended Complaint, which presents the same claim. Furthermore, the Court

notes that Andrades, in response to ATF’s latest Motion to Dismiss, has withdrawn his hostile

work environment claim in Count 4 of his Amended Complaint. Pl.’s Mem. [19-1] 1, Sept. 10,

2011. Accordingly, the sole issue before the Court is whether Andrades’ retaliation claims

(Counts 2 and 3 of the Amended Complaint) should be dismissed. The Court concludes that

because Andrades’ Amended Complaint fails to allege facts that would establish retaliation for

purposes of Title VII, Rule 12(b)(6) of the Federal Rules of Civil Procedure requires dismissal of

Counts 2 and 3.

       A. Count 2: Retaliatory Reassignment

       Andrades alleges in his Amended Complaint that ATF retaliated against him by changing

his inspection assignment from the Administration and Ethics Division to the Disclosure and

Forfeiture Division. See Am. Compl. [10] ¶¶64–65. For Andrades to make out a claim for

retaliation, he must show that he engaged in statutorily protected activity, suffered an adverse

employment action, and that there is a causal connection between the two. Taylor v. Small, 350

F.3d 1286, 1292 (D.C. Cir. 2003). As to the adverse action prong, not all actions that are adverse
                                                5
to a plaintiff qualify; such actions must be “materially” adverse to be actionable under Title VII.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006). Trivial harms, by

contrast, are not actionable. Id. The key question is whether the employer’s actions, viewed

objectively, would have dissuaded a reasonable worker from making or supporting a charge of

discrimination. See id. at 68.

       Andrades has failed to plead, in his Amended Complaint, facts that would establish that

his reassignment to an inspection of the Disclosure and Forfeiture Division constituted an

adverse employment action under Title VII. Other than insufficient conclusory assertions that

this reassignment would dissuade an EEO complainant from filing a charge of discrimination,

and that he suffered a loss of “professional esteem,” “standing,” “personal stress,” and “mental

pain and suffering,” Am. Compl. [10] ¶65, Andrades does not allege facts that, when viewed

objectively, would dissuade a reasonable worker from making or supporting a charge of

discrimination. He does not claim that the new assignment involved significantly different

responsibilities, or that it caused him to suffer any objective harm. See Czekalski v. LaHood, 589

F.3d 449, 457 n.8 (D.C. Cir. 2009). As such, Count 2 of Andrades’ Amended Complaint fails to

state a claim for retaliation and it will be dismissed.

       B. Count 3: Retaliatory Delay of a Lateral Transfer

       The Court will also grant ATF’s Motion to Dismiss with respect to Count 3 of Andrades’

Amended Complaint, where he alleges that ATF retaliated against him by omitting or removing

his name from a volunteer list for the DOO position. See Am. Compl. [10] ¶66–68. Once again,

the conduct Andrades alleges is retaliatory in Count 3 is insufficient as a matter of law to

constitute an adverse action for the purposes of Title VII. First, Andrades’ fails to explain how

ATF’s alleged failure to include his name on a list for a position he obtained two months later

through a different selection process harmed him. To the extent that the harm from ATF’s
                                                   6
alleged removal or omission of Andrades’ name from the volunteer list is characterized as a

delay in hiring Andrades into the DOO position (which, it must be noted, Andrades does not

allege in his Amended Complaint), a delay in obtaining a “lateral assignment,” see Compl. [1] 2

n.1,” cannot amount to an adverse action “without accompanying ‘material adverse

consequences.’” Runkle v. Gonzales, 391 F. Supp. 2d 210, 224 (D.D.C. 2005). Apart from

insufficient conclusory allegations, see Am. Compl. [10] ¶68, Andrades fails to allege that he

suffered, as a result of this delay, any consequences that could be objectively considered

materially adverse. As such, Count 3 of his Amended Complaint fails to state a claim for

retaliation under Title VII.

       In sum, the Court will dismiss Counts 2 and 3 of Andrades’ Amended Complaint.

IV.    PLAINTIFF’S MOTIONS [25, 26] FOR LEAVE TO FILE A SECOND AMENDED
       COMPLAINT

       Following ATF’s filing of its second Motion to Dismiss in August 2011, Andrades filed a

Second Amended Complaint with the Court. 2d Am. Compl. [21] 1, Sept. 20, 2011. However,

he did not seek leave. Made aware of this procedural error, Andrades subsequently filed two,

apparently duplicative, motions for leave to file the already filed Second Amended Complaint.

See Mot. Leave to File 2d Am. Compl. [25], Oct. 4, 2011; Am. Mot. Leave to File 2d Am.

Compl. [26], Oct. 4, 2011. A plaintiff may amend a complaint a second time by leave of court,

and leave should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). However,

Andrades’ motions for leave do not identify, or provide a basis for, the further amendments,

hampering the Court’s ability determine whether justice requires them.        After review of

Andrades’ proposed Second Amended Complaint, the Court notes that Andrades has added some

additional facts to support his contention that his reassignment in 2009 constituted an adverse

employment action—see, e.g., 2d Am. Compl. [21] ¶¶44, 60—but these additional allegations


                                              7
would not cure the pleading deficiency in Count 2 identified above, and so that count would still

not survive a motion to dismiss. Since these amendments to his Amended Complaint would be

futile, his motions for leave will be denied. See In re Interbank Funding Corp. Sec. Litig., 629

F.3d 213, 215–16 (D.C. Cir. 2010). The Court will also direct the Clerk of the Court to strike

Andrades’ improperly filed Second Amended Complaint from the record.

V.     CONCLUSION

       Therefore, for the reasons stated above, the Court will deny defendant’s Motion [9] to

Dismiss or, Alternatively, for Summary Judgment as moot, grant defendant’s Motion [16] to

Dismiss in Part or, Alternatively, for Summary Judgment in Part, and deny both plaintiff’s

Motion [25] for Leave to File a Second Amended Complaint and his Amended Motion [26] for

Leave to File a Second Amended Complaint.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, Chief Judge, on March 1, 2012.




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