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Menifee v. U.S. Department of Interior

United States District Court, District of Columbia

March 21, 2013


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[Copyrighted Material Omitted]

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SYLVIA MENIFEE, Plaintiff, Pro se, Glenn Dale, MD.



ROSEMARY M. COLLYER, United States District Judge.

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Sylvia Menifee, an employee of the Department of the Interior, alleges that her supervisor and other Interior employees have intimidated her in the workplace and that her complaints to Interior personnel have fallen on deaf ears. Proceeding pro se, she brings a First Amendment claim, tort claims, and a claim under the Freedom

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of Information Act. Defendants have moved for summary judgment on Ms. Menifee's FOIA claim and to dismiss all other claims. For the reasons set forth below, the Court finds that Defendants have complied with the requirements of FOIA and that Ms. Menifee has failed to state a claim as to all other counts in the Amended Complaint. The Court will thus grant both of Defendants' motions. Because sovereign immunity bars some of Ms. Menifee's tort claims, the dismissal of those claims will be with prejudice, while the dismissal of the others will be without prejudice.


Ms. Menifee's Complaint and Amended Complaint are entirely devoid of any factual allegations. However, Ms. Menifee has alluded to the facts underlying her First Amendment and tort claims in various filings. In their motion for summary judgment on Ms. Menifee's FOIA claim, Defendants have included evidence and a statement of facts that Ms. Menifee has not disputed. The Court reviews the procedural history of the case, synthesizes the facts that form the basis for Ms. Menifee's First Amendment and tort claims, and then discusses the background of the FOIA claim.

A. Procedural History

Ms. Menifee filed a cursory three-count Complaint on February 15, 2012, alleging that Interior and various individual Interior employees " recklessly made malicious and false statements about the Plaintiff," " violated [her] 1st Amendment Rights," and " intentionally withheld [her] request for records under the Freedom of Information Act (FOIA)." Compl. [Dkt. 1] ¶ ¶ 1-3. The original Complaint named five defendants: Interior, Andrew Jackson, John Ross, Tanya Henderson, and Diane Smith, all Interior employees. The Complaint did not in any provide any factual basis for Ms. Menifee's claims. That deficiency notwithstanding, Ms. Menifee immediately filed a Motion for Temporary Restraining Order against Mr. Ross. [Dkt. 2].

Defendants opposed Ms. Menifee's TRO motion, Dkt. 5, and the Court held a hearing on February 24, 2012, at which it denied the TRO motion. Defendants moved to dismiss Ms. Menifee's First Amendment and tort claims, Dkt. 7, which Ms. Menifee opposed, Dkt. 10. Defendants filed a reply brief, Dkt. 11, and Ms. Menifee, without seeking leave to do so, filed a surreply, Dkt. 12 (" Surreply" ). At the same time, Ms. Menifee also filed an Amended Complaint. [Dkt. 13]. The Amended Complaint contains five claims: (1) " [T]he supervisor and other DOI management staff[ ] recklessly and deliberately made malicious and false statements" about her; (2) " Defendant(s) violated [her] 1st Amendment Rights" ; (3) " The Defendant intentionally withheld [her] request for records under [FOIA]" ; (4) " The Defendant(s) tortuously [sic] caused Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress" ; and (5) " Abuse of process by agency law enforcement." See id. ¶ ¶ 1-5. As was the original Complaint, the Amended Complaint is devoid of any factual allegations. The Amended Complaint names the original five defendants--Interior, Andrew Jackson, John Ross, Tanya Henderson, and Diane Smith--and adds Steve Hargrave. [1] The Court refers to the Defendants collectively as " Interior."

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Construing Ms. Menifee's filing of an Amended Complaint as a motion to amend her complaint, Interior responded with an omnibus opposition and memorandum to dismiss (" MTD Mem." ). [Dkt. 14]; see also Errata [Dkt. 15]. Interior separately filed a second motion to dismiss Ms. Menifee's tort and First Amendment claims (" MTD" ). [Dkt. 16]. Ms. Menifee then filed a " Response" in support of her Amended Complaint in which she argued that she should be allowed to amend her Complaint; the Court will refer to that filing as Plaintiff's Reply. [Dkt. 18] (" Pl. Mot. Amend Reply" ).

On May 16, 2012, Interior filed a reply brief in support of its second motion to dismiss the tort and First Amendment Claims. Reply Pl. Resp. Defs. Mot. Dismiss [Dkt. 19] (" Def. MTD Reply" ). On July 30, 2012, Interior filed an answer to the Amended Complaint. [Dkt. 23]. The following day, the Court by Minute Order construed Ms. Menifee's Amended Complaint as a motion to amend the complaint and granted the motion. The Court also denied the first motion to dismiss as moot and directed Ms. Menifee to respond to the second motion to dismiss. Ms. Menifee filed a response on August 28, 2012. Pl. Resp. Def. Mot. Dismiss Tort & First Amend. Claims (" Pl. MTD Opp." ) [Dkt. 27].

Separately, the Court set a briefing schedule on Ms. Menifee's FOIA claim. The defendants moved for summary judgment, Dkt. 28 (" Def. MSJ" ); Ms. Menifee filed an opposition, Dkt. 29 (" Pl. MSJ Opp." ); and the defendants filed a reply brief, Dkt. 30 (" Def. MSJ Reply" ). At the invitation of the Court, see Dkt. 32, Ms. Menifee filed a supplement to her opposition, Dkt. 35 (" Pl. MSJ Supp. Opp." ).

B. Facts

1. First Amendment and Tort Claims

Ms. Menifee identifies herself as an " 80% disabled veteran, with 22 years of government service," who has worked for Interior since January 3, 2011. Mem. Supp. TRO [Dkt. 2] ¶ ¶ 1-2. She works in the Office of Valuation Services (OVS), [2] where, at least as of September 2011, she was the Chief of the Business and Administrative Management Division. [3] Along with " other key members of management," Ms. Menifee's direct supervisor, John Ross, is alleged to have subjected her to " unsettling acts of discrimination" that began " [s]hortly after her arrival" at Interior. Id. ¶ 3. During one-on-one meetings between Ms. Menifee and Mr. Ross, Mr. Ross has allegedly " demonstrated intimidating behaviors" that made Ms. Menifee " concerned for her safety." Id. ¶ ¶ 4-9.

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Sometime after " late March" 2011, Ms. Menifee raised concerns about Mr. Ross to higher-level supervisors and " Security," and even to the Secretary of the Interior, but Mr. Ross's conduct allegedly continued, including " send[ing] [Ms. Menifee] harassing emails at odd times." Id. ¶ ¶ 4, 15-21. Ms. Menifee began experiencing " fear and work related stress" and was sometimes unable to go to work, including around the holiday season of 2011. Id. ¶ ¶ 16-17. After January 9, 2012, she felt that " [t]he level of harassment" from Mr. Ross became " unbearable." Id. ¶ 20. Ms. Menifee thus sought a TRO requiring that " all contact" between her and Mr. Ross " cease," notwithstanding that " [t]he nature of [Ms. Menifee's] work does not require" direct contact with Mr. Ross. Id. at 5. During the TRO hearing, Ms. Menifee reiterated repeatedly that her primary concerns were that meetings requested by Mr. Ross were " deceptive," his behavior at such meetings was " aggressive," and the Interior chain of command had not addressed the issues despite her complaints. Feb. 24, 2012 Hr'g Tr. at 10-12.

In her filings, Ms. Menifee references an " incident on April 2, 2012" in which Mr. Hargrave is alleged to have " deliberately impersonated law enforcement" in a " planned and pre-mediated action." Pl. Mot. Amend Reply at 2. Ms. Menifee asserts that Mr. Hargrave " was charged by his co-defendants to conducted [sic] an investigation into [her] safety, which he was not authorized to do" and " abused his position and authority over her." Id. at 2-3. On this occasion, Ms. Menifee allegedly was " denied entry to the Department of Interior building [ ] by a security supervisor accompanied by representatives of HR." Surreply, Ex. 1 (E-mail from David Shapiro [4]) at 1; see also Surreply at 3 (referring to a " gang of seven (7) insubordinate DOI employees (5 security officials and 2 Human Resources personnel)" ). Ms. Menifee asserts that " building security had been given a photography of her" and been " told to call [Mr. Hargrave] if and when she entered the building." Shapiro E-mail at 1. Interior security contacted Mr. Hargrave when Ms. Menifee attempted to enter, and he denied Ms. Menifee permission to enter the building. Id. When Ms. Menifee " attempted to go through and scan her ID," Mr. Hargrave " had another male building security guard block her path." Id. Ms. Menifee felt " utterly humiliated" by this event. Id.

Separately, Ms. Menifee refers to events that occurred on June 13, 2012, during which " Mr. Hargrave[] had [her] detained for a second time and would not allow her to exit the DOI headquarters building with her personal belongings until he conducted a search of them." Pl. MTD Opp. at 2. This second incident, about which no additional facts are in the record, postdates the filing of the Amended Complaint.

2. FOIA Claim

Ms. Menifee submitted two FOIA requests to the Office of the Secretary of the Department of the Interior: one on June 30, 2011, and the other on September 29, 2011. Julka Decl., Def. MSJ Ex. [Dkt. 28-1] ¶ 5.

i. June 30, 2011 Request

The June 30, 2011 request sought 24 categories of documents, mostly e-mail correspondence among certain individuals. Specifically, Ms. Menifee requested:

a. All emails between John Ross (; and Tanya Henderson (TanyaEHenderson from January 2011 to present.

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b. All emails between John Ross(; and Dave Damron (DaveDamron from January 2011 to present.
c. Email from John Ross to Andrew Jackson on or around May 13 in which Mr. Ross mentions " issues in the DC office is spreading to the field."
d. Email between John Ross and Eric Alvarez on June 28, 2011.
e. All emails between Tanya Henderson and Dave Damron from January 2011 to present.
f. All emails between Alex Glade and Danielle Dzidzienyo from May 5, 2011 to present regarding relocation.
g. All emails between Alex Glade and John Ross from May 5, 2011 to present regarding relocation.
h. All emails between Alex Glade and Yolanda Jamison from May 5, 2011 to present regarding relocation.
i. Email(s) from Danielle Dzidzienyo to John Ross on or about May 12, 2011 regarding the relocation of Alex Glade; email subject line: " Email and other documentation ...

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