United States District Court, D. Maryland
PASCAL N. NOUNA, Plaintiff,
WILBUR ROSS, Secretary of Commerce Defendant.
W. TITUS UNITED STATES DISTRICT JUDGE
N. Nouna (“Nouna”) is employed as a mechanic at
the National Institute of Standards and Technology (NIST), an
agency of the United States Department of Commerce. ECF No.
31-4 at 1. Nouna identifies himself as “Black” or
“African, ” and he is originally from Cameroon.
ECF No. 31-4 at 3-4.
filed this action on July 1, 2013 against the Secretary of
Commerce (“Commerce”), Wilbur Ross,
pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq.,
alleging employment discrimination on the basis of race,
color, and national origin. See ECF No 1 at 1-2.
Nouna alleges NIST and Commerce failed to promote him on
“[m]any occasions.” ECF No. 1 at 2. In addition
to a failure to promote, he claims that he experienced
continued harassment, insults, intimidation, and retaliation.
ECF No. 1 at 2-3. In sum, Nouna alleges three claims against
Commerce: (1) discrimination based on race, color, and
national origin; (2) a hostile work environment; and (3)
retaliation. ECF No. 1 at 2.
pro se Complaint, Nouna seeks back pay, injunctive
relief of “$121, 120.00 during three years as wage
grade 5 and than [sic] three years as wage grade 8, ”
monetary damages in the amount of $20, 000, costs and
attorneys fees, as well as “Lack of training $25,
000” and “Health issues $30, 000.” ECF No.
1 at 1, 3-4. The Court will now address all of the pending
motions in this Memorandum Opinion.
he initiated this proceeding, the Court granted Nouna a stay
on December 30, 2013 during his deployment with the U.S.
military. ECF No. 13. Following the conclusion of Nouna's
deployment, Commerce filed a timely Motion to Dismiss for
Failure to State a Claim or, in the Alternative, for Summary
Judgment (ECF No. 31) on July 7, 2016. Simultaneously, it
filed a Motion to Seal Exhibits from Agency (ECF No. 33).
Commerce attached to its Motion the Agency's Record of
Nouna failed to properly file a Response, Commerce filed a
Motion for Extension of Time (ECF No. 36) to set forth a
clear date by which to respond to any opposition by Nouna.
ECF No. 36 at 1. In this Motion, Commerce brought to the
Court's attention that it had received from Nouna a
“Motion to Stay” that was not properly filed with
the Clerk's Office. ECF No. 36 at 1. Although unclear,
the Court will consider Nouna's submission as an
Opposition to Commerce's Motion to Dismiss, as well as a
separate Motion to Stay. This Opposition is docketed, as it
is titled, as “Complainant's Motion to Stay
Agency's Motion to Dismiss or in the Alternative for
Summary Judgment Until After a Hearing and Decision on
Complainant's Motion to Compel Discovery” (ECF No.
38). On September 8, 2016, Commerce filed a Reply in Support
of Defendant's Motion to Dismiss or, in the Alternative,
for Summary Judgment (ECF No. 39).
Commerce's Motion to Dismiss for Failure to State a Claim
or, in the Alternative, for Summary Judgment [ECF No.
Pro Se Standard
federal district court is charged with liberally construing a
complaint filed by a pro se litigant to allow the
development of a potentially meritorious case. Hughes v.
Rowe, 449 U.S. 5, 9 (1980). Nonetheless, liberal
construction does not mean that a court can ignore a clear
failure in the pleading to allege facts that set forth a
cognizable claim. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990). The mandated
liberal construction afforded to pro se pleadings
means that if the court can reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail, it
should do so; however, a district court may not rewrite a
complaint in order for it to survive a motion to dismiss.
See Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
Motion to Dismiss Based on 12(b)(6)
has moved to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief could
be granted. ECF No. 31 at 1. A motion to dismiss under Rule
12(b)(6) serves “to test the sufficiency of a
complaint.” Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999). In order to be sufficient to
survive dismissal, a complaint must allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). On a motion to dismiss, courts
“are not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986). Rule 8 “requires
a ‘showing, ' rather than a blanket assertion, of
entitlement to relief.” Twombly, 550 U.S. at
556 n.3. To survive a motion to dismiss, a complaint must put
forth “plausible claim[s] for relief.”
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). “But where the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). While a plaintiff
is not required to allege facts in his complaint sufficient
to prove his case as an evidentiary matter, “a
plaintiff is required to allege facts that support a
claim for relief. Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (emphasis in
original). Further, “self-serving, inaccurate legal
conclusions cannot rescue a factually deficient
complaint.” Faulkner Advertising v. Nissan Motor
Corp., 945 F.2d 694, 695 (4th Cir. 1991). A plaintiff
must provide more than mere “conclusory allegations or
speculation.” Mackey v. Shalala, 360 F.3d 463,
469-70 (4th Cir. 2004).
motion to dismiss, if a court considers matters outside the
pleadings, the motion must be treated as one for summary
judgment, and all parties must be given an opportunity to
present all materials pertinent to the motion. Fed.R.Civ.P.
12(d). However, the Court may consider “documents
attached to the complaint, see Fed. R. Civ. P.
10(c), as well as those attached to the motion to dismiss, so
long as they are ...