UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARK CRAWFORD, et al.,

Plaintiffs, v. Civil Action No. 17-798 (JEB)

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

Defendant.

MEMORANDUM OPINION

Plaintiffs –– four black Criminal Investigators at the Department of Justice –– bring this

suit alleging racial discrimination in their employment. Specifically, they believe that they are

being undercompensated relative to their white peers. Yet, as currently framed, their Complaint

is rather opaque, and its jumble of facts and theories falls short of stating any viable claim.

Plaintiffs, however, in F. Scott Fitzgerald’s words, should not “confuse a single failure with a

final defeat.” Tender is the Night 157 (Wordsworth ed. 1995). To provide them sufficient

opportunity to state their case, the Court will dismiss the Complaint without prejudice, but will

refrain from jettisoning the entire suit, a disposition that will allow them to file an amended (and

clearer) Complaint if they so desire.

I. Background

A. Factual Background

Plaintiffs are four black men and women employed as Criminal Investigators by the

Superior Court Division of the U.S. Attorney’s Office in Washington, D.C. See ECF No. 35

(First Amended Complaint), ¶¶ 13–17. Like all federal employees, they are compensated

1 pursuant to a graded scale. All CIs in the Superior Court Division are paid at the grade level

denominated “GS-12,” while those in the District Court Division are paid at the higher-salaried

“GS-13” level. Id., ¶ 18. It is not clear from Plaintiffs’ Complaint whether all the Superior

Court Investigators are black or whether all their counterparts in the District Court Division are

white. Plaintiffs do nonetheless assert that the pay disparity results from DOJ’s racial animus.

Id., ¶¶ 9, 22, 24.

B. Procedural History

In October of 2015, Plaintiffs filed a formal discrimination complaint with the Equal

Employment Opportunity Commission in which they alleged that they were being “paid . . . less

than similarly-situated Caucasian employees.” Id., ¶¶ 10, 13. They subsequently decided to

terminate that administrative process in favor of pursuing this theory in federal court. Id., ¶ 11.

They filed their initial lawsuit in this Court on April 30, 2017, asserting that DOJ had

discriminated against them in violation of the Lilly Ledbetter Fair Pay Act of 2009 and Title VII

of the Civil Rights Act. See ECF No. 1 (Pl. Complaint), ¶ 7. In the ensuing years, the parties

pursued mediation but failed to resolve their dispute. See ECF No. 27 (Joint Status Report of

March 4, 2019) at 1. Meanwhile, in February 2019, Plaintiffs filed a second substantially similar

lawsuit in this Court. See Crawford v. Barr, No. 19-440 (D.D.C. Feb. 21, 2019).

After Defendant moved for judgment on the pleadings in the current case, Plaintiffs

sought, with Defendant’s consent, to amend their Complaint. See ECF Nos. 29 (Def. MJP), 34

(Pl. MTA). In moving to amend, Plaintiffs agreed to voluntarily dismiss the 2019 case,

conceding that it was duplicative of their 2017 salvo. See Pl. MTA, ¶ 6. The Amended

Complaint lists four counts, which could be liberally construed as alleging claims of

discrimination, retaliation, and a retaliatory hostile work environment under Title VII of the Civil

2 Rights Act. The 2019 case having been folded into its 2017 counterpart, DOJ now moves to

dismiss all claims against it under Federal Rule of Civil Procedure 12(b)(6). It also moves to

strike certain allegations in the Amended Complaint under Federal Rule of Civil Procedure 12(f).

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v.

Twombly,

(2007), “a complaint must contain sufficient factual matter,

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly,

).

In evaluating Defendant’s Motion to Dismiss, the Court must “treat the complaint’s

factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be

derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

(D.C.

Cir. 2000) (citation omitted) (quoting Schuler v. United States,

(D.C. Cir.

1979) (citing Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,

(1993)). The Court need not accept as true, however, “a legal conclusion couched as a

factual allegation,” nor an inference unsupported by the facts set forth in the complaint. Trudeau

v. FTC,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)).

Additionally, under Federal Rule of Civil Procedure 12(f), a court may strike from a

pleading any “insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” “A motion to strike is a ‘drastic remedy that courts disfavor,’ and trial judges have

discretion to either grant or deny such motion.” Bey v. Washington Metro. Area Transit Auth.,

3

(D.D.C. 2018) (alterations omitted) (quoting Riddick v. Holland,

(D.D.C. 2015)).

III. Analysis

In seeking dismissal here, DOJ argues that each of the four counts listed in Plaintiffs’

Amended Complaint does not state a plausible claim for relief. Defendant also moves to strike

certain allegations in the Complaint on the ground that they relate scandalous hearsay allegations

about a DOJ employee. The Court first considers whether to dismiss the counts in the Amended

Complaint and then addresses the Motion to Strike.

A. Motion to Dismiss

Count I

The Court agrees with Defendant that the scattershot list of facts and accusations that

currently compose Count I does not clear the pleading bar, modest as it is. This count alleges

that DOJ “discriminated against each of [the Plaintiffs] based on their race (Black) when on or

about August 6, 2015, August 20, 2015 and September 3, 2015, to the present, [Defendant] paid

them less than similarly-situated Caucasian employees.” First Am. Compl., ¶ 3. In support of

this allegation, Plaintiffs point to a variety of disconnected evidence, among which is that:

(1) whites employed in the District Court Division are “rated at the GS-13 level,” id., ¶ 18;

(2) Plaintiffs filed an EEOC discrimination complaint, id., ¶ 19; and (3) “GS-13 supervisor”

Christopher Brophy “reportedly had a conversation on work premises” where he referred to a

black Criminal Investigator as a member of the “Cornfield.” Id., ¶ 23.

Even generously construed as a discrimination claim brought under Title VII of the Civil

Rights Act (referenced not in Count I but elsewhere in the Complaint), this count fails as a matter

of law. (Plaintiffs also invoke the Lilly Ledbetter Fair Pay Act, but that statute does not provide

4 an independent cause of action. See McNair v. District of Columbia,

(D.D.C. 2016.)) Title VII “bars ‘intentional discrimination and artificial, arbitrary, or

unnecessary barriers’ that stand in the way of ‘equal opportunity’ without regard to race.” Davis

v. District of Columbia,

(D.C. Cir. 2019) (quoting Segar v. Smith,

(D.C. Cir. 1984)). Under Title VII, “the two essential elements of a discrimination

claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the

plaintiff’s race, color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne,

(D.C. Cir. 2008) (citing 42 U.S.C. § 2000e-16(a)). Count I does not

sufficiently allege this second element.

It is true that Plaintiffs allege that they are paid less than “similarly situated [Caucasian]

employees.” First Am. Compl., ¶ 24; see Walker v. Johnson,

(D.C. Cir.

2015) (employer’s better treatment of similarly situated employees outside the plaintiff’s

protected group provides indirect evidence of racial discrimination). Yet they later state that

those same white employees work in a completely different division –– the District Court

Division, which, unlike the Superior Court Division, handles federal offenses –– that rates

investigators “at the GS-13 level.” First Am. Compl., ¶ 18. Plaintiffs’ own Complaint, then,

reveals that they are not similarly situated to the relevant employees outside of their protected

class. See Ragsdale v. Holder,

(D.D.C. 2009) (to show that he is

similarly situated to fellow employee, plaintiff must “demonstrate that all of the relevant aspects

of their employment situation are nearly identical”). Plaintiffs do not even allege that they

applied for positions in the District Court Division or that they were demoted to their current

positions. And while they allege that they brought pay-disparity concerns to unnamed

“management officials” in 2008, see First Am. Compl., ¶ 21, they also alternatively assert that

5 the pay disparity began in 2015, id., ¶ 9, which would make their protesting such a disparity in

2008 subject to the constraints of time travel.

Plaintiffs also allege that Christopher Brophy, a supervisor of GS-13 CIs in the District

Court Division, referred to them using the racially pejorative term, the “Cornfield.” Id., ¶ 23. In

order to support a finding of discriminatory animus, however, there “must be a clear nexus

between the stray workplace remark and the adverse action.” Ajisefinni v. KPMG LLP,

(D.D.C. 2014) (quotation marks and alteration omitted). Plaintiffs do not

maintain that Brophy –– who was not their supervisor –– had any involvement in personnel

decisions that related to their terms of employment, let alone that he participated in an adverse

action against them. See Beeck v. Fed. Express Corp.,

, 53–54 (D.D.C.

2000) (“Direct evidence does not include stray remarks in the workplace, even if made by

decision-makers, where the remarks are unrelated to the decisional process itself.”). In sum,

Count I’s “naked assertion[]” of racial discrimination, devoid of “factual enhancement,” fails to

plead a cognizable discrimination claim. See Iqbal,

(quoting Twombly,

).

Count II

Count II appears to allege a retaliatory hostile-work-environment claim –– i.e., that DOJ

created a hostile environment in retaliation for Plaintiffs’ filing of their 2017 lawsuit in federal

court. See First Am. Compl., ¶¶ 27–28; Baird v. Gotbaum,

(D.C. Cir.

2011) (quoting Hussein v. Nicholson,

(D.C. Cir. 2006)) (“[A] hostile work

environment can amount to retaliation under Title VII.”). The Complaint, however, pleads

neither of the two requisite components of such a claim: the existence of a hostile work

environment or retaliation for Plaintiffs’ participation in a protected activity.

6 As to the first, “a plaintiff must show that his employer subjected him to ‘discriminatory

intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’” Baloch,

(quoting Harris v. Forklift Sys., Inc.,

(1993)). “The Supreme Court has

made it clear that ‘conduct must be extreme to amount to a change in the terms and conditions of

employment.’” George v. Leavitt,

(D.C. Cir. 2005) (quoting Faragher v. City

of Boca Raton,

(1998)). Plaintiffs’ vague allegations –– namely, that

Defendant “denied them the opportunity to fully perform their duties” and “assigned them duties

that were below their GS grade,” First Am. Compl., ¶ 28 –– fall short of the “severe or

pervasive” conduct that might support a hostile-environment claim.

The enumerated events also do not constitute retaliatory actions whether considered in

the context of a hostile-work-environment claim or not. “To prove retaliation, the plaintiff

generally must establish that he or she suffered (i) a materially adverse action (ii) because he or

she had brought or threatened to bring a discrimination claim.” Baloch,

. Yet

Plaintiffs do not connect any of the allegedly punitive acts, such as “den[ying] them the

opportunity to fully perform their duties,” First Am. Compl., ¶ 28, to their commencement of the

2017 lawsuit –– the protected activity at issue. Indeed, they filed that Complaint on April 30,

2017, and did not serve it until June 1. All of that litigation activity took place after the events

alleged in Count II, which occurred on April 25, April 27, and May 9 of 2017. Id., ¶ 28; see

Dudley v. WMATA,

(D.D.C. 2013) (“It is hard to argue that the

employer punished plaintiff because of plaintiff’s protected activity, if the employer was

completely unaware of plaintiff’s protected activity.”); Lewis v. District of Columbia,

(D.D.C. 2009) (“The fact that the allegedly retaliatory actions preceded the

7 protected activity precludes a determination that the protected activity caused the defendant to

retaliate against the plaintiff.”). Plaintiffs’ retaliatory hostile-work-environment claim thus

cannot proceed.

Counts III and IV

Finally, Plaintiffs’ third and fourth counts appear to be entirely duplicative of counts I

and II and contain the same fatal deficiencies. These Counts, like those before them, allude to a

“reorganization” that resulted in Plaintiffs’ remaining at the “GS-12” level. See First Am.

Compl., ¶ 38. Counts III and IV also state that “similarly situated” white Criminal Investigators

are being paid at the GS-13 level, while Plaintiffs are forever mired at GS-12, in part because of

their grievances about the pay disparity.

Throughout Counts III and IV, Plaintiffs sprinkle a slew of inconsistencies and unrelated

facts that make discerning a viable discrimination claim impossible. For example, they allege

that unnamed management officials reorganized their office in 2007 and conducted a review in

2010.

¶¶ 30–34. Yet, as Defendant highlights, even those few Plaintiffs who were employed

at DOJ during that period did not experience a change in their position after the reorganization or

the 2010 review. They have thus not alleged how the reorganization or review harmed them in

any way. Additionally, these counts appear to compare Plaintiffs to white Criminal Investigators

employed at the “GS-18” level in New Jersey and New York, id., ¶ 44, who are not relevant

comparators, since the D.C. USAO is the only office that handles both local and federal

prosecutions and thus divides its CIs between the two functions. See ECF No. 38 (Def. MTD) at

20–21. For largely the same reasons stated above, then, these counts do not plead sufficient facts

to support discrimination or retaliation claims.

8 * * *

Although all four counts suffer from numerous defects, the Court does not foreclose the

possibility that Plaintiffs might be able to state a claim for relief. Cf. Firestone v. Firestone,

(D.C. Cir. 1996) (“[D]ismissal with prejudice is warranted only when a trial

court determines that the allegation of other facts consistent with the challenged pleading could

not possible cure the deficiency.”) (quoting Jarrell v. United States Postal Serv.,

(D.C. Cir. 1985)). As a result, it will dismiss only the First Amended Complaint and not

the entire case, thus giving Plaintiffs one more opportunity. See Ciralsky v. CIA,

(D.C. Cir. 2004) (“The dismissal without prejudice of a complaint [is] not final . . . because

the plaintiff is free to amend his pleading and continue the litigation[;] . . . dismissal without

prejudice of an action (or ‘case’), by contrast . . . end[s] the suit . . . [and] is final.”).

B. Motion to Strike

Defendant also moves to strike certain allegations in the Complaint relating to Brophy.

By way of reminder, under Federal Rule of Civil Procedure 12(f), a court may strike “any

redundant, immaterial, impertinent, or scandalous matter.” The bar for prevailing on such a

motion remains high because “courts disfavor motions to strike.” Bey,

.

Indeed, “[a]bsent a strong reason for so doing, courts will generally not tamper with the

pleadings.”

(internal quotation marks and citation omitted). “In considering a motion to

strike, courts will draw all reasonable inferences in the pleader’s favor and resolve all doubts in

favor of denial of the motion to strike.” Moore v. United States,

, 190–91

(D.D.C. 2018).

Given the above standard, even as it dismisses Plaintiffs’ Complaint, the Court will deny

the Motion to Strike. DOJ takes issue with Plaintiffs’ statements concerning Brophy, including

9 that he was suspended from work and directed employees to lie on timesheets and violate

applicable agency regulations. See Def. MTD at 25. According to Defendant, these constitute

the sorts of “scandalous” allegations, “unrelated to the underlying claims,” that courts have

stricken.

Although the comments are certainly not favorable, they are hardly so scandalous

and irrelevant to warrant striking. See Wiggins v. Philip Morris, Inc.,

, 457–58

(D.D.C. 1994) (striking allegations of “illicit drug usage” by employee of Defendant because of

irrelevance to racial-discrimination claim). A motion to strike requires more of Defendant than

merely an assertion that an unpleasant accusation lodged against it will ultimately be disproved.

DOJ furthermore has not carried its burden of establishing that Plaintiffs’ accusations about

Brophy were made “in bad faith or for the purpose of deceiving the court,” and the Court

declines to strike them from the record. See Nwachukwu v. Karl,

(D.D.C.

2003). In any event, the Complaint is being dismissed, which largely negates Defendant’s

concerns.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss and deny

its Motion to Strike. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: December 4, 2019

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