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THOMPSON v. POPE

November 3, 2005.

JILL THOMPSON, Plaintiff,
v.
BARBARA POPE, et al, Defendants.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
I. INTRODUCTION
Jill Thompson, a foreign service officer with the Bureau of Diplomatic Security ("DS") of the United States Department of State ("Department of State"), brings suit against seven individuals and John Does, all employees at the U.S. Department of State (collectively, "defendants"), alleging that the defendants violated the plaintiff's rights under the Fourth and Fifth Amendments to the U.S. Constitution. This matter comes before the court on the defendants' motion to dismiss or for summary judgment. Because Congress has established a comprehensive statutory scheme governing grievance proceedings under the Foreign Service Act, the court declines to extend a damages remedy under Bivens v. Six Unknown Named Fed. Narcotics Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). For this reason, the court grants the defendants' motion to dismiss. II. BACKGROUND

  A. Factual Background

  The plaintiff alleges as follows. Jill Thompson, a foreign service officer with DS, began a tour of duty in October 2000 in the Office of Financial Services, Bureau of Financial Management and Policy, and was staffed on a project to deploy the Department of State's new accounting system. Compl. ¶ 11. The plaintiff had numerous reservations regarding this accounting system and voiced these concerns in November 2000 to Larry Eisenhart, the Deputy Chief Financial Officer and a defendant in this case. Id. ¶ 12. In response to the plaintiff's concerns, "Eisenhart severely berated and humiliated Plaintiff and denounced her concerns before those in attendance." Id. ¶ 12. Additionally, at Eisenhart's request, the plaintiff was removed from the accounting project. Id. ¶ 13. The plaintiff documented her professional concerns to Eisenhart in a January 2001 memorandum. Id. The following month, the plaintiff's then-director Ron Miller reassigned her to the Foreign Service National Global Retirement Fund. Subsequently, "on various occasions from March-May 2001[,] Mr. Eisenhart abused Plaintiff publicly and by telephone for her work on the FSN Global Retirement Fund." Id. ¶ 16. The plaintiff documented and formally complained about this abusive conduct to Miller, who "concurr[ed] with her complaint" and forwarded it to Grant Green, the Under Secretary of Management. Id. ¶ 17.

  Later, two female employees in the plaintiff's office complained to Eisenhart that the plaintiff was engaged in a romantic relationship with her immediate supervisor, Mike Rafalko, and that she was reaping professional benefits from this relationship. Id. ¶ 18. Responding to these complaints, Eisenhart and William Todd, the Executive Director of the Bureau of Financial Management Policy, "contacted a number of offices within the State Department . . . in an attempt to have an investigation launched of Plaintiff's alleged misconduct." Id. ¶ 19. During the course of this investigation, Todd and a subordinate of Eisenhart conducted an initial investigation into Thompson and Rafalko's alleged relationship. Pl.'s Opp'n to Defs.' Mot. to Dismiss or for Summ. J. ("Pl.'s Opp'n") at 4. In the course of this investigation, Todd searched e-mail messages in the plaintiff's Department of State e-mail account. Id. Todd also "sought evidence from certain [Office of International Financial Services] employees, and . . . began searching through Mr. Rafalko's desk while he was out of the office." Id.

  As a result of the investigation, the plaintiff bore significant stresses, which culminated, ultimately, in the plaintiff suffering "a subarachnoid brain hemorrhage on September 25, 2001, a life threatening event which is usually fatal." Compl. ¶ 6. The plaintiff's neurologist believes that "the levels of stress to which she had been subjected and the hostility of her working environment" caused her ailment, Pl.'s Opp'n at 5, an opinion the plaintiff conveyed in a letter to Under Secretary Green, Compl. ¶ 23.

  The plaintiff's husband requested assistance from Eisenhart and Under Secretary Green in the form of future relief from the "turmoil" to which the plaintiff was the victim. Id. ¶ 21, 22. The plaintiff notified the Under Secretary of her belief that Eisenhart's call for an investigation was in retaliation for her complaints of Eisenhart's abusive conduct. Id. ¶ 24. Assistant Secretary Barbara Pope, a defendant in this case, appointed DS to conduct the investigation into the plaintiff's alleged misconduct. Id. ¶ 25.

  In October 2001, shortly after the plaintiff was released from the hospital following her hemorrhage, DS commenced its investigation into the plaintiff's allegations of retaliation. Id. ¶ 26. In the course of this investigation, in November 2001, Diplomatic Security agents interrogated the plaintiff. Id. ¶ 27. This interrogation "lasted for several hours and ran directly counter to the instructions and requirements set forth to the State Department by Plaintiff's neurologist to protect her health." Id. Also as part of this investigation, investigators allegedly searched e-mail messages from the plaintiff's Department of State e-mail account, id. ¶ 30, coerced the plaintiff into responding to questions not relevant to her official duties or the subject matter of the investigation, id. ¶ 31, questioned her about personal photographs, and requested medical documentation of the plaintiff's purported inability to participate in investigatory interviews, id. ¶ 34. Diplomatic Security Agent Thomas Scanlon, a defendant in this case, issued a Report of Investigation ("ROI") in December 2001, which Nancy Rolph-O'Donnell, another defendant in this case, reviewed and approved. Id. ¶ 35. According to the plaintiff, this report was "grossly inaccurate and unfair to Plaintiff in its content and conclusions." Id. ¶ 35.

  From this report, the Bureau of Human Resources ("HR") recommended that the plaintiff's employer suspend her for a period of three days. Id. ¶ 36. This recommendation was withdrawn, however, after the plaintiff refuted its accuracy. Id.

  The plaintiff filed an administrative grievance in January 2002, in which the plaintiff complained of the Department of State's "harsh, injurious treatment" of her.*fn1 Compl. ¶ 38. In December 2002, the plaintiff underwent a compulsory urinalysis drug test. Id. ¶ 40.

  According to the plaintiff, as a result of the defendants' conduct and the plaintiff's consequent pain, she "suffers from a disability which prevents her from living without assistance and from participating in a full range of normal life activities." Id. ¶ 42. Further, the plaintiff alleges that as a result of the defendants' conduct, "her career in the foreign service has suffered and her prospects for professional advancements have diminished." Id.

  B. Procedural Background

  Prior to filing the complaint in this case, the plaintiff filed suit against the Department of State, alleging that the defendant violated the Privacy Act through its investigation of the alleged romantic relationship between the plaintiff and her supervisor. Thompson v. Dep't of State, No. 03cv2227, slip. op. at 1 (D.D.C. Sept. 26, 2005) (Huvelle, J.). In that case, the plaintiff made the precise allegations presented in the case now before this court,*fn2 yet sued the Department of State directly, rather than the participating bureaucrats, and alleged that the defendant's actions violated the Privacy Act, rather than the Constitution. The court granted summary judgment to the defendant as to each of the plaintiff's claims, ruling that as to each, the plaintiff failed to demonstrate any Privacy Act violation. See Id.

  Having lost in the lawsuit against the Department of State, the plaintiff has now filed suit against seven former or current employees of the Department of State, and has sued an undisclosed number of "John Does." Comp. ¶ 1. The plaintiff asserts that she is entitled to sue the defendants directly for alleged constitutional violations under Bivens. Pl.'s Opp'n. The defendants filed a motion to dismiss, arguing that they are entitled to qualified immunity. Defs.' Mot. to Dismiss or for Summ. J. ("Def.'s Mot.") at 8. Alternatively, the defendants argue that a Bivens remedy is inappropriate in this ...


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