HORNSBY v. WATT, No. 1:2016cv00517 - Document 11 (D.D.C. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 7 Defendant's Motion to Dismiss; Plaintiff's Complaint is hereby dismissed in its entirety. Signed by Judge Gladys Kessler on 11/4/16. (CL)
Download PDF
<![CDATA[
HORNSBY v. WATT Doc. 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RICHARD HORNSBY Plaintiff, v. Civil Action No. 16-0517 (GK) MELVIN L. WATT, DIRECTOR, FEDERAL HOUSING FINANCE AGENCY: Defendant. Memorandum Opinion and.Order Plaintiff Richard Hornsby ("Plaintiff," "Hornsby") brings this lawsuit against the Director of the Federal Housing Finance Agency ("Defendant," "Government," or "FHFA"). Plaintiff alleges two counts of retaliation in violation of Title VII of the Civil Rights Act Complaint of 1964 26-29. ("Title VII"), 42 U.S.C. §2000e et seq. Specifically, Plaintiff alleges that he was placed on administrative leave and then proposed for removal from his position because he agreed to settle a retaliation complaint brought against FHFA by one of his subordinates. Complaint. See generally Plaintiff seeks compensatory damages of $300,000, plus interest, improved performance ratings and any resultant bonuses, plus interest, crediting of annual and sick leave for the time he 1 Dockets.Justia.com remained on administrative leave, and attorney's fees and costs. Id. at p. 14-15. Pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure, Defendant filed its Motion to Dismiss on June 23, 2016. Mot. to Dismiss [Dkt. No. 7]. July 14, 2016. Opp'n [Dkt. No. 9]. July 21, Reply [Dkt. No. 2016. Plaintiff filed his Opposition on Defendant filed a Reply on 10]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion to Dismiss is granted. I. Background A. Factual Background 1 i. Hornsby's Early Tenure at FHFA Richard Hornsby was hired as ("COO") of FHFA on December 6, 2011. the Chief Operating Officer Complaint 5. Initially, The following allegations are taken from Plaintiff's Complaint, unless otherwise noted, and are accepted as true. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) ("we accept the plaintiff's factual allegations as true"). In addition, the Court considers the contents of both the letter, placing Hornsby on Administrative Leave, Ex. A to Mot. Dismiss [Dkt. No. 7-2], and the Notice of Proposal to Remove, Ex. B to Mot. Dismiss [Dkt. No. 7-3] . Both these documents are incorporated into Plaintiff's Complaint by reference, see Complaint 17, 23, and therefore may be considered by the Court. Maggio v. Wisconsin Ave. Psychiatric Ctr., 795 F.3d 57, 62 (D.C. Cir. 2015) (in deciding on a motion to dismiss a court may consider sources other than the complaint, such as "documents incorporated into the complaint by reference and matters of which a court may take judicial notice.") (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)) (internal quotation marks omitted). 1 2 Hornsby reported to Edward DeMarco ("DeMarco"), who had been the previous COO of FHFA but was serving as the Acting Director at the time of Hornsby's hire. Id. at 9. For 2012; Hornsby's first full year as COO, DeMarco rated his performance as "Outstanding" and gave him a bonus of $17,500 and a retention allowance of over $25,000.2 Id. ii. Deterioration in Relationship between Hornsby and DeMarco Sometime in 2013, Melvin Watt was nominated to be the Director of FHFA. Watt Id. at were 10. confirmed, DeMarco allegedly became concerned that if he would be forced into a position with significantly less authority than that of either Acting Director or coo. Id. When it became evident in September 2013 that Watt would likely be confirmed, DeMarco allegedly began a campaign of "criticism and abuse" intended to drive Hornsby from FHFA so that DeMarco could take back his position as coo. Id. The Court stresses that while it takes notice of the contents of the Proposal to Remove, it does not accept as true the statements describing Hornsby's conduct contained therein because Hornsby characterizes those statements as wholly untrue and fabricated. Complaint 16, 23. Instead, for purposes of deciding the Motion to Dismiss, the court accepts as true Hornsby's allegation that these descriptions of his conduct were fabricated by various individuals within FHFA. See Browning, 292 F. 3d at 242. 2 The retention allowance was intended to defray the costs of maintaining a residence in Washington (in addition to his primary residence in California) and of travel to California to see his wife. Complaint 9. 3 For example, in September 2013 DeMarco cancelled Hornsby's retention bonus, and in December 2013 DeMarco informed Hornsby that he would be receiving a critical performance rating for 2013. Id. at 2013 11. On March 11, 2014, DeMarco provided Hornsby with his performance Successful." Id. review, rating his performance "Fully This rating was two levels below the 2012 rating of "Outstanding," and made Hornsby ineligible for a cash bonus. Id. at 11, 12. Watt took office as the Director of FHFA on January 6, 2014. Id. at 12. tendered his DeMarco reverted to a Deputy Director position, and resignation from FHFA in late March 2014, to be effective at the end of April 2014. iii. Issues Arise between Hornsby and Subordinate during Same Period During this same time period, Hornsby alleges that he was beginning to lose confidence in one of his subordinates, Jeffrey Risinger Id. at ("Risinger"), 14. the head of FHFA's Human Resources Unit. According to Hornsby, he had initially supported Risinger after a retaliation complaint was brought against him by his subordinate, Marie Harte ("Harte"). April 25, 2014, Hornsby, Id. at in his capacity as 15. On Friday, FHFA' s settlement officer for Equal Employment Opportunity (EEO) claims, attended a mediation session related to Harte's EEO complaint. meeting, Id. In this Hornsby came to believe that Risinger had lied to him 4 about the issues raised in Harte's EEO complaint, and therefore decided to settle her complaint. Id. iv. Risinger Reports that Hornsby Threatened DeMarco The following Monday, FHFA officials that April 28, Hornsby had 2014, made DeMarco's life and physical safety. Id. Risinger reported to statements threatening Specifically, Risinger reported that Hornsby said, among other things: "I can understand how someone could go postal, [sic] if I decide to take myself out I will walk into Ed DeMarco's office and blow his brains out and then kill myself"; that he would shoot DeMarco in the kneecap and state "don't [expletive redacted] with me"; and that he would "rip [DeMarco] limb by limb from his office." Ex. B to Mot. to Dismiss [Dkt. No. 7-3 at p. 3-4]. Hornsby alleges that Risinger's report was "pure invention" and that he "never asserted any such threats." Instead, he alleges that Risinger fabricated Complaint these threats 16. in retaliation for Hornsby's decision to settle Harte's EEO complaint against Risinger. v. Id. at 25. Hornsby Is Placed on Administrative Leave The same day as Risinger reported the purported threats, FHFA management placed Hornsby on administrative immediately escorted from the building. I 5 Id. leave and had him at 17; Ex. A to Mot. to Dismiss [Dkt. No. 7-2 at p. 2]. The letter placing him on administrative leave states that his administrative leave would last "until further notice," were investigated, and that he would receive his usual pay and benefits while on leave. Subsequently, while the allegations against him Id. agents [Dkt. No. 7-2 at p. 2-3]. from FHFA' s Office of the Inspector General (OIG) interviewed Hornsby and then placed him under arrest. Complaint at felonies, Id. at misdemeanors. While 17, 18. he 18, but the charges were later reduced to two Id. at was Hornsby was initially charged with three 20. awaiting trial, Hornsby received multiple settlement offers from FHFA, including from Watt directly. Id. at 19, 20. Though the terms of these offers are not specified in detail in the Complaint, Hornsby claims that FHFA offered him a "buy-out" and the dismissal of charges if he left the agency. Id. Hornsby was told that if he refused the settlement he would be terminated regardless of the outcome of the trial. vi. Id. Hornsby Is Tried, Acquitted, and Thereafter Removed from Employment at FHFA In November 2014, a bench trial was held in D.C. Court on the two misdemeanor charges against Hornsby. 21. Superior Id. at On November 20, 2014, Hornsby was acquitted of both charges. 6 Id. Following his acquittal, Hornsby was not returned to regular duty at FHFA. Id. at Instead, on 22. December 19, 2014, Watt issued a Notice of Proposal to Remove ("Proposal to Remove") Hornsby from his position as coo and from federal service. [Dkt. No. 7-3 at p. 3-4]. a Id.; Ex. B to Mot. to Dismiss In the Proposal to Remove Watt identifies long list of incidents, from which he concluded Hornsby had engaged in "Conduct Unbecoming a Federal Manager." to Dismiss [Dkt. No. 7-3 at p. 3-6]. Ex. B to Mot. Among these incidents were the purported threats against DeMarco reported by Risinger. In addition, Proposal to Remove also included allegations of improper conduct made by employees other than Risinger. Proposal to Id. Remove administrative leave. determined Id. that [Dkt. No. Hornsby 7-3 would at p. 9] Id. The remain on Hornsby alleges that the charges in the Proposal to Remove "were untrue and twisted out of context" and "invented" by the investigators from FHFA's Office of General Counsel and OIG. 23. On March 19, 2015, Watt issued a decision to remove Hornsby from his position as COO and from federal service, effective March 21, 2015. Complaint 24. B. Procedural Background Following his removal, Hornsby filed an appeal with the Merit Systems Protection Board ("MSPB"), arguing that his removal was a 7 violation of civil service protections and an act of unlawful retaliation in violation of Title VII. is still pending before the MSPB. Id. at 24. That appeal Id. March 18, 2016, Hornsby filed his Complaint in this action, challenging only the failure to reinstate him from administrative leave following his acquittal and his proposed removal. 1) . Following the grant of an extension of time, the Government timely filed its Motion to Dismiss on June 23, 7). [Dkt. No. 2016. [Dkt. No. 9) . Hornsby filed an Opposition on July 14, 2016. The Government filed its Reply on July 21, 2016. II. [Dkt. No. [Dkt . No. 10] . Standard of Review Rule 12(b) (6) of the Federal Rules of Civil Procedure permits dismissal upon the "failure to state a claim upon which relief can be granted." dismiss, a Fed. R. Civ. P. 12(b) (6). complaint must contain "To survive a motion to sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, quotation marks and citations omitted) . plausible when the pleaded facts reasonable inference misconduct alleged." that Id. the 678 (2009) A claim is (internal facially "allows the court to draw the defendant is liable for the Plausibility requires "more than a sheer 8 possibility that a defendant has acted unlawfully," but it is not a "probability requirement." At the Rule 12 (b) (6) Id. stage, the court accepts all of the complaint's factual allegations as true and draws all reasonable inferences from those facts in plaintiff's favor. Clinton, However, 292 F. 3d at 242. Browning v. the court does not accept "inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint." marks and citations omitted). Id. (internal quotation Similarly, the court need not accept plaintiff's legal conclusions simply because they are "cast in the form of factual allegations." citations omitted) . elements, Id. (internal quotation marks and "Threadbare recitals of a cause of action's supported by mere conclusory insufficient to survive a motion to dismiss. statements," are Iqbal 556 U.S. at 678. In addition to the complaint, sources, such as the court may consider other "documents incorporated into the complaint by reference and matters of which a court may take judicial notice." Maggio, 795 F.3d at 62 (quoting Tellabs, (internal quotation marks omitted) . 9 Inc., 551 U.S. at 322) III. Analysis A. Title VII Retaliation Standard "Title VII prohibits the federal government from. retaliating against employees for engaging in activity protected by Title VII." 2008)). Montgomery v. Chao, 546 F.3d 703, 706, (D.C. Cir. To prove unlawful retaliation, a plaintiff must show: that she engaged in protected activity; (1) (2) that the employer took a materially adverse action against her; and (3) that the employer took the activity. 2012). action "because" McGrath v. the Clinton, "To survive [a] . employee engaged 666 F.3d 1377, . motion to dismiss, in 1380 protected (D.C. Cir . [a] plaintiff [' s] complaint must contain sufficient factual matter, accepted as true to plausibly establish those three elements." 3 Howard R.L. Cook & Tommy Shaw Found. for Black Employees of the Library of Congress v. Billington, 737 F.3d 767, 772 (D.C. Cir. 2013) (internal Where a plaintiff attempts to prove unlawful retaliation in violation of Title VII using circumstantial evidence of motive, the burden-shifting framework of McDonnell Douglas ordinarily applies. Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973)). However, when assessing the sufficiency of a complaint at the 12 (b) ( 6) stage, the court will not dismiss a complaint simply for failing to plead the elements of a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12 (2002). Instead, "ordinary rules for assessing the sufficiency of a complaint apply." Id. at 511; see e.g. Wheeler v. Georgetown Univ. Hosp., 788 F. Supp. 2d 1, 5 (D.D.C. 2011); Bryant v. Pepco, 730 F. Supp. 2d 25, 28-29 (D.D.C. 2010). 3 10 quotation marks and citations omitted) (explaining the application of Iqbal to a Title VII retaliation claim) . In this case, the Government argues that Plaintiff has failed to allege any facts from which the Court can infer that the actions taken against him constitute materially adverse actions. 4 B. Plaintiff Has Failed to Allege Any Facts Supporting an Inference that He Was Subjected to Materially Adverse Actions i. An Action Is Materially Objectively Tangible Harm Adverse if it Causes Materially adverse actions are those that are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Fe Ry. Co. v. White, 548 U.S. 53, 68 Burlington N. &'Santa (2006). To be materially adverse, an action must cause "objectively tangible harm," which Bridgeforth v. Jewell, cannot be "unduly speculative." 661, 663 (D.C. Cir. 2013) 721 F.3d (internal citation and quotation marks The Government concedes that Plaintiff engaged in protected activity by settling Harte's retaliation complaint against Risinger. See Mot. to Dismiss at p. 12. The Government also argues, that even if the Court were to conclude that Plaintiff has sufficiently plead facts supporting an inference he was subject to materially adverse actions, he has failed to allege facts supporting an inference that there is a causal connection between his participation in protected activity and those actions. Id. at p. 8. It is unnecessary to address this argument because, as discussed below, the Court concludes that Plaintiff has failed to allege facts sufficient to support an inference that he was subject to any materially adverse actions and his Complaint must be dismissed on that basis. 4 11 omitted); see also Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) it (failure to promote is not a materially adverse action where does not Glassman, result in "objectively tangible 511 F.3d 151, 160-61 (D.C. Cir. harm") ; 2007) Wiley v. (change in job responsibilities is not a materially adverse action if there is no "objectively tangible harm"). Ordinarily, a materially adverse action "involves a significant change in employment status, such as hiring, firing, failing to promote, responsibilities, benefits." adverse reassignment or a are not significantly causing decision Bridgeforth, actions with significant However, 721 F. 3d at 663. limited to actions different change in materially that occur in the workplace or are directly related to the terms of employment. Burlington N., F.3d 1211, 548 U.S. at 63-64 1213 (D.C. Cir. (citing Rochon v. Gonzales, 438 2006) (FBI's refusal, contrary to policy, to investigate death threats against employee constitutes a materially adverse action) . ii. The Failure to Reinstate Plaintiff from Paid Administrative Leave Did Not Cause Him Objectively Tangible Harm The Government argues that the decision not to reinstate an employee from a investigation adverse action. is period of paid administrative leave, ongoing, can never Mot. to Dismiss at p. 9. 12 constitute a while an materially Plaintiff responds that this decision, when viewed in context of all other events in this case, was sufficiently harmful to dissuade a reasonable worker from engaging in protected activity and is therefore a materially adverse action. Opp'n at p. 3. The Court of Appeals does not appear to have addressed this question, point. and neither party has identified a case directly on However, the Government cites to a number of cases in this District holding that placing an employee on paid administrative leave does not, in and of itself, constitute an adverse employment action for purposes of a Title VII discrimination claim. Mot. to Dismiss at 9 (citing Jones v. Castro, 168 F. Supp. 3d 169, 180-81 (D.D.C. 2016) (holding that initial paid suspension of two weeks, periodically extended investigation was to total conducted, is 19 not months while an adverse an internal action because Plaintiff "cannot show 'objectively tangible harm'" resulting from paid leave) (citing inter alia Bland v. Johnson, 66 F. Supp. 3d 69, 73 (D.D.C. 2014), aff'd in part, rev'd in part per curiam, 637 Fed.Appx. 2 (D.C. Cir. 2016) (affirming the district dismissal of plaintiff's Title VII claims); Brown v. Univ. Hosp. Medstar Health, 828 F. Supp. 2d 1, 9 court's Georgetown (D.D.C. 2011); Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 79 (D.D.C. 2002))); but see Richardson v. Petasis, 160 F. Supp. 3d 88, 117-18 (D.D.C. 2015) (placement on paid administrative 13 leave constitutes an adverse employment action where the express terms of employee's leave resulted in termination of employment) . Additionally, the Courts of Appeal in many other Circuits have concluded that placing an employee on paid leave does not constitute an adverse action. 90-91 (2d Cir. 2006) See Joseph v. Leavitt, 465 F.3d 87, (placement on paid administrative leave does not constitute an adverse action in the Second, Fourth, Fifth, Sixth, and Eighth Circuits); accord Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) an adverse action) . Second Circuit has (placement on paid leave is not Furthermore, addressed the the Court of Appeals for the very issue presented here. Joseph, 465 F.3d at 90-93. In Joseph, the court held that where an employee is placed on paid administrative leave during the pendency of a criminal investigation and the criminal charges are dismissed, the failure to immediately reinstate the employee does not constitute an adverse action if the employer then pursues its own investigation and conducts it with "reasonable diligence." Joseph, 465 F.3d at 92. felony There, an employee was arrested for assault and subsequently placed on paid administrative leave by his employer. Id. at 88-89. employer While the criminal charges were still pending, his tried to initiate its own investigation of what transpired, but the employee refused to cooperate on the advice of 14 counsel. Id. dropped, but restarted at 89. Ultimately, the criminal rather than reinstate the employee, its administrative investigation and leave additional for an investigation was completed. kept the charges were the employer employee on months until five paid the Id. The court held that the failure to immediately reinstate the employee following dismissal of the assault charge, who was being paid, was not recognized an adverse that the action. agency investigating the truth of had the agency's The 91-93. independent court interest even if Id. at 92. in there was beyond a reasonable doubt, the employee had committed a crime. that an at the allegations, insufficient evidence to prove, found Id. that The court further investigation had been conducted with "reasonable diligence," and therefore, that the period of leave had not been "unreasonably prolonged." Id. Thus, the court held that the plaintiff there was no adverse action as could not identify any material harm resulting from the failure to reinstate him. Id. at 92-93. The only contrary authority is Richardson. 88. There, the court held that placement on 39 days of paid administrative because: nature" 160 F. Supp. 3d leave constituted an adverse it was of "unusually long duration"; employment action and the "unusual of the conditions of the employee's leave affected the 15 terms of her employment. Id. Specifically, at 118. the court found that the terms of plaintiff's administrative leave required her to perform certain tasks to the satisfaction of her supervisor in order to return administrative leave these Id. tasks. to work, but that other terms of her effectively prevented her from completing at 106, 118. Unable to comply with these contradictory mandates, the plaintiff resigned. Id. at 106. Based on the "unusual nature" of the terms of her leave and what the court termed plaintiff's a "lengthy administrative suspension", leave the created court light of this near-universal that "objectively tangible harm" and was therefore an adverse employment action. In held Id. at 118. consensus, the Court concludes that placing an employee on paid administrative leave does not, in and of itself, constitute a materially adverse action for purposes of a retaliation claim. Admittedly, all of the cases discussed are Title VII discrimination cases, and thus apply the "adverse employment action" standard rather than the "materially adverse action" standard applicable in retaliation cases. See Burlington N., 548 U.S. at 67 ("Title VII's substantive provision and its antiretaliation provision are not coterminous") . But while the scope of actions covered by Title VII's substantive provision and its anti-retaliation provisions differ, the magnitude of harm that plaintiff must suffer does not. F. 3d at 663 (retaliation claim 16 Compare Bridgeforth, requires 721 "objectively tangible harm"), with Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002) (discrimination claim requires "objectively tangible harm"); see also Rochon v. Gonzales, 438 F.3d at 1219 ("materiality" of harm alleged is common requirement in retaliation and discrimination claims). Thus, the holding that a period of paid leave does not, in and of itself, cause objectively tangible harm is equally true in both the retaliation and discrimination contexts. Accordingly, reinstate the Plaintiff Court holds that the from paid administrative decision leave not to immediately following his acquittal was not a materially adverse action because Plaintiff's it did not cause him any objectively tangible harm. claim is quite narrow. He does not challenge the initial decision to place him on administrative leave, instead claiming that he should have been immediately reinstated after being guilty on November 20, 2014. issued the Proposal to found not And on December 19, 2014, the agency Remove Plaintiff, which constitutes a distinct action that independently justified maintaining him on paid administrative leave status. Thus, the essence of Plaintiff's complaint is that his paid administrative leave was prolonged by roughly 29 days.s s Given the extremely short duration of the challenged action, Plaintiff's reliance on cases involving permanent reassignments or reductions in work level is misplaced. See Opp'n at p. 3 (citing Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); Holcomb v. Powell, 433 F.3d 889, 902-03 (D.C. Cir. 2006)). 17 Because a period of paid administrative leave does not, in and of itself, constitute a materially adverse action, Plaintiff must allege specific, additional facts from which the Court could infer that this short extension of his paid administrative leave caused him objectively tangible harm. He has failed to do so. First, it is undisputed that Plaintiff continued to receive full and pay and benefits throughout this time. 19. See Complaint Second, the additional 29 days is not, in itself, so long as to have caused him any objectively tangible harm. See Castro, 168 F. Supp. 3d at 180-81 (19 months of paid administrative leave is not an adverse action) . Nor is this like Richardson, because Plaintiff has failed to allege that other harms resulted directly See 160 F. Supp. 3d from the terms of his administrative leave. at 118. To the reinstate extent him is that a Plaintiff materially argues adverse that action the failure because unreasonable or unjustified, that argument also fails. it to was While at least one court has suggested that "unreasonably prolong[ing]" a period of paid administrative leave may constitute an adverse action, see Joseph, 465 F.3d at 92, Plaintiff has failed to allege any facts supporting such an inference here. Plaintiff does not allege that FHFA failed For example, to investigate the charges against him with "reasonable diligence," nor does he allege 18 any facts which would support such an inference. See Id. Government interest undoubtedly had an independent The in investigating the charges against him that did not end with his acquittal, Id. at 91-92, and the 29 days which FHFA took following his acquittal to review the evidence presented at trial and determine next steps strike the Court as eminently reasonable. See Ex. B to Mot. to Dismiss [Dkt. No. 7-3 at p.6] (discussing evidence presented at trial) . Nor has Plaintiff identified any statute, regulation, or other employment policy that mandated FHFA reinstate him following his acquittal. Thus, while Hornsby may have personally expected to return to work immediately following his acquittal, he has failed to allege arty facts supporting an inference that FHFA was unjustified when it declined to do so. Plaintiff has failed to allege any facts that support an inference that the failure to reinstate him following his acquittal caused him objectively tangible harm. materially adverse action, and he Consequently, it is not a cannot sustain a claim of retaliation on that basis. iii. The Proposal to Remove Plaintiff Did Not Cause Him Objectively Tangible Harm Similarly, the Government argues that the Proposal to Remove is not a materially adverse action because its issuance caused Plaintiff no harm. Mot. to Dismiss 19 at p. 10-11. Plaintiff .. responds that the Proposal to Remove, when viewed in context of all other events in this case, was sufficiently harmful to dissuade a reasonable worker from engaging in protected activity and is therefore a materially adverse action. A Proposal to Remove materially adverse action. 348, 357 adverse (D.D.C. 2015) employment 'materially adverse ordinarily by its (D.C. Cir. not constitute (Proposals to Remove do not actions because consequence' no a follow[] 02-cv-0950, it does not "amount to 'tangible directly harm' from or them" 2003 WL 21788953, at *5 A Proposal to Remove is just that, very nature employee. does See Knight v. Mabus, 134 F. Supp. 3d (quoting Boykin v. England, (D.D.C. 2003))). Opp'n at p. 3. effectuate the a proposal; removal of an Id.; see also Baloch v. Kempthorne, 550 F.3d 1191, 1199 2008) (there is no materially adverse action where a suspension is merely "proposed" but not served (emphasis in the original)). Instead a Proposal to Remove is a procedural device used to provide an employee with notice of the employer's intention to remove her at some later date and give her an opportunity to dissuade the employer from doing so. See 5 C.F.R. § 752.404(c) (allowing employee to provide formal answer to the charges forming the basis of the proposal) . the final decision to It is "essentially a precursor" to remove the 20 employee. Boykin, 2003 WL 21788953 at *5. As such, no objectively tangible harm results from it, and it ordinarily cannot constitute a materially adverse action. 6 Id. at *5; Knight, 134 F. Supp. 3d at 357. Consequently, a plaintiff claiming that a Proposal to Remove is a materially adverse action must allege specific facts supporting an inference that she suffered objectively tangible harms as a result of its issuance. Here, Plaintiff has failed to allege any facts such an inference. supporting For example, he has failed to allege that his pay, benefits, or anything else materially changed as a result of the issuance of the Proposal to Remove. 7 11. Mot. to Dismiss at p. In the end, what is fatal to Plaintiff's claim is that FHFA remained free to rescind the Proposal to Remove at any time between its issuance on December 19, 2014, and his removal on March 19, A Proposal to Remove may be used to show that Plaintiff suffered a materially adverse action where the Plaintiff claims that she was constructively discharged. Burton v. Donovan, 12-cv-1537, 2016 WL 5660285 at *6 (D.D.C. 2016). However, in doing so, the Proposal to Remove is merely evidence used to overcome the presumption that the Plaintiff's resignation or retirement was voluntary. Id. (citing Aliotta v. Bair, 614 F.3d 556, 566-67 (D.C. Cir. 2010)) -.-Ultimately, it is the termination of plaintiff's employment, accomplished through an involuntary resignation or retirement, that constitutes the materially adverse action, not the Proposal to Remove. See Aliotta, 614 F.3d at 566 (a plaintiff can "demonstrate she suffered an adverse employment action by showing the resignation or retirement was, in fact, not voluntary.") (emphasis added)). 6 That Plaintiff was kept on paid administrative leave as a result of its issuance is insufficient for the reasons discussed above. 7 21 2015, meaning that no objectively tangible harm could possibly result because no final decision had been made. 752.404 See 5 C.F.R. § (notice of proposed removal is prerequisite to removing federal employee) . To be sure, Plaintiff's ultimate removal caused him significant harm and flowed directly from the Proposal to Remove. But this fact merely serves to highlight the defect in his current claim: fire Plaintiff's real complaint is not that FHFA proposed to him, but that he was, in fact, Yet, fired. Plaintiff's challenge to his ultimate removal is not before this Court, but instead is currently pending before the MSPB. See Knight, Complaint 24. 134 F. Supp. 3d at 357 (a Proposal to Remove is "not separately actionable" from the ultimate removal) . As Plaintiff fails to allege any facts supporting the inference that the Proposal to Remove resulted in any objectively ) tangible harms, it is not a materially adverse action and he cannot sustain a claim of retaliation on that basis. Furthermore, because Plaintiff has failed to allege facts supporting an inference that he was subjected to any materially adverse actions whatsoever, the court is unable to draw the inference that Defendant is liable for retaliation in violation of Title VII and Plaintiff's Complaint 22 must be dismissed. 8 See Iqbal, 556 U.S. at 678; Billington, 737 F.3d at 772. IV. Conclusion For the foregoing reasons, Defendant's Motion to Dismiss is granted, and it is hereby Ordered, that Defendant's Motion to Dismiss be granted, and further Ordered, that Plaintiff's Complaint be dismissed in its entirety. November 4, 2016 Plaintiff argues that the Court should look to the "'constellation of surrounding circumstances, expectations, and relationships'" to determine whether these actions would have dissuaded a reasonable employee from making or supporting a charge of discrimination and therefore are materially adverse actions. Opp'n at p. 3 (quoting Burlington N., 548 U.S. at 69): Because the Court of Appeals has made clear that a materially adverse action is one that causes objectively tangible harm, Bridgeforth, 721 F. 3d at 663, the Court refuses to engage in the open-ended analysis suggested by Plaintiff. 8 23
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
