*fn7,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,DANIEL E. HEILY, PLAINTIFF, v. UNITED STATES DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS." />

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Heily v. United States Dept. of Defense

United States District Court, District of Columbia

October 9, 2012

Daniel E. HEILY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

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Daniel E. Heily, Great Falls, VA, pro se.

Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Plaintiff Daniel E. Heily, proceeding pro se, brings this action against several federal agencies and officials, seeking redress for prohibited personnel practices in violation of 5 U.S.C. § 2302(b)(9) (2006), injury to his professional reputation in violation of Va.Code Ann. §§ 18.2-499, -500 (2012), intentional infliction of emotional distress, and hostile work environment. See Bill of Complaint and Request for Injunctive Relief Revision 1 (" Am. Compl." ) ¶¶ 163-81. The plaintiff also seeks Writs of Mandamus pursuant to 28 U.S.C. § 1361 (2006), see id. ¶¶ 186-88, as well as a release of records pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2006), see id. ¶ 190. Currently before the Court is the defendants' motion for partial dismissal of the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6) ( " Defs.' Mot." ). Upon consideration of the parties' submissions,[1] the Court concludes for the

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following reasons that the defendants' motion must be granted. The Court will also dismiss sua sponte the plaintiff's remaining claim, brought under the FOIA, on mootness grounds.[2]

I. BACKGROUND

The plaintiff began his employment with the National Geospatial-Intelligence Agency (" the Agency" ) in October 2002. See Am. Compl. ¶¶ 14-15. He served in two divisions: Acquisition Engineering, Branch E, and Acquisition Engineering, Branch D. See id. ¶ 16. The plaintiff's amended complaint details a series of workplace issues that began when he was transferred to Branch D, including comments by defendant Lauri Jo Litton that the plaintiff perceived as offensive, see id. ¶¶ 37-40, 50, Ms. Litton's denial of the plaintiff's request to attend four training courses, id. ¶ 45, Ms. Litton's initial denial of the plaintiff's request for leave and her requirements for the plaintiff to take leave, id. ¶¶ 61-68, and poor ratings on the plaintiff's Performance Appraisals for fiscal years 2003, 2004, and 2005, id. ¶¶ 75-76, 78.

After receiving his Performance Appraisal for fiscal year 2005, the plaintiff appealed his ratings through the Agency's administrative grievance process. Id. ¶¶ 81-82. The plaintiff alleges that " [t]he Formal Appeal was never answered even though an answer was required from Defendant Beauchamp by regulation." Id. ¶ 83. Shortly after filing his formal appeal of his 2005 Performance Appraisal, " Defendant Stephens left a voice mail threatening to smear Plaintiff if Plaintiff did not withdraw his Appeal" in which Mr. Stephens " ask[s] Plaintiff to ‘ reconsider’ his lawful action regarding the formal appeal of his [fiscal year 2005] Performance Appraisal." Id. ¶¶ 84, 89. The plaintiff alleges that " Defendant Scopp, Defendant Litton, [and] Defendant Stephens [sic] response to [the decision] not [to] withdraw[ ] the Formal Appeal of Plaintiff's Performance Appraisal was to assign [him] an impossible task, then criticize Plaintiff for not accomplishing it." Id. ¶ 91. The plaintiff alleges that this assignment was " a specious and pretextual task." Id. ¶ 95. Beginning in December 2005, the plaintiff's supervisors gave him a series of warnings regarding his unsatisfactory performance, including a reprimand, id. ¶ 98, an informal warning of unsatisfactory performance, id. ¶¶ 98, 107, and a warning of unsatisfactory performance and placement on a Performance Improvement Plan, id. ¶ 108.

In January 2006, the plaintiff filed a document entitled " Detailed Complaint of Discrimination to the DoD Inspector General and the National Geospatial-Intelligence Agency" with the Department of Defense Inspector General and the Agency's Office of Diversity Management and Equal Employment Opportunity, followed

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by an amended complaint in October 2006, which included additional allegations (" Inspector General Complaint" ). Id. ¶¶ 111, 114, 124. In December 2006, the plaintiff received a response from the Inspector General indicating that no action was warranted based on the plaintiff's allegations, id. ¶ 127, id. Ex. F 1-2, which the plaintiff alleges was proceeded by a " perfunctory" investigation, id. ¶ 132.

The plaintiff instituted this action on July 2, 2009, and filed an amended complaint on June 20, 2011, nunc pro tunc to June 8, 2011, pursuant to the Court's oral ruling at a status conference. Count I of the amended complaint asserts that defendants Winston Beauchamp, David Scopp, Lauri Jo Litton, and Larry Stephens " retaliated [against him] for [his] lawful exercise to appeal his Performance Appraisal for [fiscal year 2005]" in violation of 5 U.S.C. § 2302(b)(9). Id. ¶¶ 163-167. Count II alleges a violation of Va.Code Ann. § 18.2-499 and § 18.2-500 by " all" defendants. Id. ¶¶ 168-71. Count III is brought against Mr. Beauchamp, Mr. Scopp, Ms. Litton, and Mr. Stephens for the common law tort of intentional infliction of emotional distress for their actions. Id. ¶¶ 172-79. Count IV is entitled " Tort of Maintaining a Hostile Work Environment," and is brought against Mr. Beauchamp, Mr. Scopp, Ms. Litton, and Mr. Stephens. Id. ¶¶ 180-81. As part of his requested relief, the plaintiff also seeks a writ of mandamus requiring the Department of Defense to require the Agency to (1) " perform a professional and th[o]rough investigation" of the allegations in the Inspector General Complaint, (2) " formally respond" to the plaintiff's appeal of his 2005 Performance Appraisal, and (3) " perform a proper EEO investigation." Id. ¶¶ 186-88. Finally, the plaintiff also alleges that the Agency has failed to provide him with documents that he requested pursuant to the FOIA. Id. ¶ 190.

The defendants have now moved for partial dismissal of the amended complaint, seeking dismissal of all claims except for those concerning the ...


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