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
“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
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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
“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