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Ey v. Office of Chief Administrative Officer of United States House of Representatives

United States District Court, District Circuit

September 10, 2013

CARL S. EY, Plaintiff,

Beryl A. Howell, Judge


Beryl A. Howell, United States District Judge

The plaintiff Carl S. Ey initiated this employment discrimination suit, under the Congressional Accountability Act (“CAA”), 2 U.S.C. § 1301 et seq., against the defendant Office of the Chief Administrative Officer (“CAO” or “the defendant”) of the United States House of Representatives (“H.R.”), after the plaintiff’s termination from his position as the H.R.’s Director of Business Continuity and Disaster Recovery. Am. Compl., ECF No. 3, at 2. The plaintiff alleges that he was wrongfully terminated based on “age, gender, and disability-based discrimination.” Id. Pending before the Court is the defendant’s Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. ECF No. 8. For the reasons set forth below, the defendant’s motion will be granted.


A. Factual Allegations

The plaintiff is a retired Army Lieutenant Colonel, who is “medically rated as a 100% service-connected disabled veteran”[1] and over 45-years-old. Am. Compl. ¶ 1.[2] In January 2011, the plaintiff was hired as Director of Business Continuity and Disaster Recovery with the CAO, a position he held until he was fired on May 18, 2012. Id. ¶¶ 4, 36. The plaintiff’s immediate supervisor was the CAO Chief Information Officer Nelson Moe (“Moe”), whose superior was the Chief of CAO, Dan Strodel (“Strodel”). Id. ¶ 7. During his almost eighteen month employment period, the plaintiff received one performance evaluation that rated his performance as “excellent, which is the highest rating achievable.” Id. ¶ 6. This evaluation was apparently provided in a letter, dated February 22, 2012, from Strodel that was delivered by Moe “commending him on his performance of his duties and informing [him] that he would be receiving a raise as a result of his performance.” Id. ¶ 7.

In February 2011, Stacy Carlson (“Carlson”) was appointed Deputy Chief Administrative Officer of the CAO. Id. ¶ 9. The plaintiff alleges that Carlson “began ‘cleaning house, ’ by targeting men, especially older, strong-willed men with military backgrounds, for termination and replacement.” Id. ¶ 10. Specifically, the plaintiff alleges that Carlson “asked discriminatory and inappropriate questions of certain male employees to garner bases for eventual termination.” Id. ¶ 11. While the plaintiff does not state whether he was among the men asked these “discriminatory and inappropriate questions, ” he alleges that, in August 2011, Carlson asked the plaintiff details “of the nature and extent of his rated, service-related disability” and, in a subsequent “reorganization, ” several of the plaintiffs responsibilities were removed. Id. ¶¶ 12-13. The plaintiff asserts that 10 male employees over the age of 45 have been terminated or forced to resign since Carlson was hired. Id. ¶ 14.

In 2012, a contract then held by Booz Allen Hamilton (“Booz Allen”) to provide workers to the Office of Business Continuity came up for bid and the plaintiff was assigned to serve on a panel with five other persons, including CAO employees Megan Perez (“Perez”) and Sarah Parker (“Parker”), to determine which bid to accept. Id. ¶ 15-16. At the time, the plaintiff supervised five private contractors, who were all employed by Booz Allen, and two CAO employees. Id. ¶ 5.[3] The panel recommended that the five-position contract be split, with Booz Allen receiving three slots and other bidders receiving the other two slots. Id. ¶ 17. The plaintiff “executed a document reflecting his formal support of the panel’s” decision. Id. ¶ 19. Nevertheless, the CAO Chief of Procurement elected to extend the contract to Booz Allen only, for all five positions. Id. ¶ 24.

After the panel had completed its work but before the award was announced or the panel members were given their exit interviews, the plaintiff held a party at his home in Virginia to which more than eighty CAO employees were invited, including the plaintiffs fellow panel members Perez and Parker and Booz Allen contractors. Id. ¶¶ 20-21. The “entire CAO was aware of [the plaintiffs] housewarming party” and there was no discussion of the bidding for or awarding of the Booz Allen contract at the party. Id. ¶ 21–22. Several Booz Allen contractors, as well as Perez and Parker, attended the party. Id. ¶ 21.

Less than two weeks after the party, on May 16, 2012, the plaintiff was summoned to a meeting attended by Strodel and Moe, at which meeting Strodel advised the plaintiff that he “had lost faith in [the plaintiff’s] ability to manage his assets” and that the plaintiff would be terminated. See Id . ¶¶ 25, 33. More specifically, Strodel told the plaintiff “he believed that [the plaintiff] had improperly interacted with private contractors” by inviting them to the plaintiff’s party and “[b]y soliciting private contractors to support [the plaintiff’s] charitable, veteran-centric softball team.” Id. Notably, the plaintiff does not allege that Carlson was present at this meeting or otherwise involved in it. Nevertheless, the plaintiff alleges, upon information and belief, that Carlson “lobbied Mr. Strodel to terminate” the plaintiff due to discriminatory animus and that the explanation provided by Strodel was “mere pretext.” Id. ¶¶ 31-32. The plaintiff denies soliciting any private contractors, including Booz Allen, for his softball team. Id. ¶ 27. He also makes plain his disagreement with his supervisors’ assessment that his housewarming party “create[d] any ethical concerns with regard to the Booz Allen Contract, ” id. ¶ 28, citing that the panel on which the plaintiff served “had already made its recommendation …before the housewarming party occurred, ” id., and that the plaintiff “played no part” in the “decision to extend the contract in contrast to the recommendation of the panel on which [the plaintiff] served.” Id. ¶ 30. The plaintiff further notes that fellow panel members Perez and Parker were not disciplined for attending the party. Id. ¶ 29.

Although the plaintiff alleges he was initially given the option of resigning or being terminated, he was ultimately terminated on May 18, 2012. Id. ¶¶ 33–36.

B. Procedural History

The instant suit was filed in October 2012, see Compl., ECF No. 1, and the plaintiff amended the complaint by right shortly thereafter. See Am. Compl. The Amended Complaint alleges three causes of action under the Congressional Accountability Act (“CAA”): “Discriminatory Discharge” based upon gender, Am. Compl., ECF No. 3, ¶¶ 37–41; age, id. ¶¶ 42–46; and disability, id. ¶¶ 47–51. The plaintiff demands “compensatory damages, including back pay” and “[r]easonable attorneys’ fees and costs.” Id. at 10.

The Court now turns to the defendant’s motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Amended Complaint for failure to state a claim. Def.’s Mot. Dismiss Pl.’s Am. ...

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