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Terveer v. Billington

United States District Court, D. Columbia.

March 31, 2014

PETER J. TERVEER, Plaintiff,
JAMES H. BILLINGTON, Librarian, Library of Congress, Defendant

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For PETER J. TERVEER, Plaintiff: Christopher Mayfield Brown, LEAD ATTORNEY, ACKERMAN BROWN, PLLC, Washington, DC; Thomas J. Simeone, SIMEONE & MILLER, LLP, Washington, DC.

For JAMES HADLEY BILLINGTON, In his official capacity as Librarian of Congress, Defendant: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


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Plaintiff Peter J. Terveer filed suit on March 7, 2013, against his employer, Defendant James H. Billington, Librarian for the Library of Congress, alleging Defendant created a hostile work environment, denied him a within grade salary increase, and constructively discharged him on the basis of sex and religion and in retaliation for his protected activities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Pl.'s Am. Compl. ¶ ¶ 55-87, ECF No. [26]. Plaintiff also alleges an independent claim of constructive discharge. Id. ¶ ¶ 88-92. In addition, Plaintiff alleges that Defendant's discriminatory acts violated his rights under the Due Process and Equal Protection clauses of the Fifth Amendment, the Library of Congress Act, 2 U.S.C. § 140, and various Library of Congress policies and regulations prohibiting harassment and retaliation based on religion and sexual orientation. See id. ¶ ¶ 93-114. Presently before the Court is Defendant's Motion to Dismiss all eight counts of Plaintiff's Complaint. See Def.'s Mot. to Dismiss, ECF No. [27]. Upon consideration of the pleadings,[1] the relevant legal authorities, and the record for purposes of a motion to dismiss, the Court finds that Plaintiff has sufficiently pled sex discrimination, religious discrimination, and retaliation claims under Title VII. However, to the extent Plaintiffs claims are based on his constructive discharge, they must be dismissed because Plaintiff failed to exhaust these claims. By contrast, the Court finds that Defendant has waived any exhaustion defense as to Plaintiffs discrimination and retaliation claims based on the denial of his within-grade salary increase. Finally, as Title VII is the exclusive remedy for federal government employees' claims of employment discrimination and the Court finds on the present record that Plaintiff has pled claims cognizable under Title VII, the Court dismisses without prejudice Plaintiffs constitutional claims, as well as Plaintiffs claims under the Library of Congress Act and Library of Congress policies and regulations. Accordingly, for the reasons stated below, Defendant's Motion is GRANTED IN PART and DENIED IN PART.


A. Factual Background

For the purposes of Defendant's Motion to Dismiss, the Court presumes the following facts pled in Plaintiffs' Amended Complaint to be true, as required when considering a motion to dismiss. In February 2008, Plaintiff was hired as a Management Analyst in the Auditing Division of the Library of Congress Office of the Inspector General (" OIG" ). Id. ¶ 1. Plaintiffs first-level supervisor was John Mech (" Mech" ), a religious man who was accustomed to making his faith known in the workplace. Id. ¶ ¶ 1, 8. On June 24, 2009, Mech told Plaintiff that " putting you . . . closer to God is my effort to encourage you to save your worldly behind." Id. ¶ 8. Plaintiff became close with Mech and Mech's family, including his daughter. Id. ¶ ¶ 9-10. In August 2009, Mech's daughter learned that Plaintiff is homosexual. Id.

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¶ ¶ 10-11. Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline " Diversity: Let's Celebrate It." Id. ¶ 12. Mech also began engaging in religious lectures " at the beginning of almost every work-related conversation" " to the point where it became clear that Mech was targeting [Plaintiff] by imposing his conservative Catholic beliefs on [Plaintiff] throughout the workday." Id. Plaintiff further alleges that after learning that Plaintiff was homosexual, Mech no longer gave Plaintiff detailed instructions for assignments, but would instead give Plaintiff ambiguous instructions without clear communication of what Mech or OIG management expected. Id. ¶ 13. In December 2009, Mech began assigning Plaintiff assignments related to a large audit project that Plaintiff alleges were beyond his experience level. Id. ¶ 16. Normally, Plaintiff alleges, a project of such size and complexity would be staffed with six employees, take more than a year to complete, and be initiated by a New Project Memorandum. Id. Instead, Mech held a brief meeting to discuss the format of the project and assigned Plaintiff as the sole employee on the project. Id. Mech also began assigning Plaintiff more work in addition to the audit project. Id. ¶ 17.

On June 21, 2010, Mech called an unscheduled meeting, lasting more than an hour, for the stated purpose of " educating [Plaintiff] on Hell and that it is a sin to be a homosexual . . . [, that] homosexuality was wrong[,] and that [Plaintiff] would be going to Hell." Id. ¶ 18. Mech began reciting Bible verses to Plaintiff and told Plaintiff " I hope you repent because the Bible is very clear about what God does to homosexuals." Id. Four days later, on June 25, 2010, Plaintiff received his annual review from Mech. Id. ¶ 20. Plaintiff found the review did not accurately reflect the quality of his work and believed the review was motivated by Mech's religious beliefs and sexual stereotyping. Id. That day, Plaintiff confronted Mech regarding the purpose of his religious lecturing and " the unfair treatment that began after Mech learned [Plaintiff] was homosexual." Id. Mech was greatly angered by Plaintiff's questioning, vehemently denied that Plaintiff's homosexuality and personal religious views had impacted his impartiality with regard to Plaintiff's work and performance, and accused Plaintiff of trying to " bring down the library." Id. ¶ 21.

On June 29, 2010, Plaintiff met with Nicholas Christopher (" Christopher" ), Mech's immediate supervisor, and told Christopher that " Mech had been lecturing him about religion and that he believed he was the victim of discrimination in the workplace because his sexual orientation did not conform to Mr. Mech's religious beliefs." Id. ¶ 24. Christopher told Plaintiff that, in his opinion, employees do not have rights. Id. ¶ 25. Christopher did not take any remedial action, did not contact the Library's Equal Employment Opportunity Office--the Office of Opportunity Inclusiveness and Compliance (" OIC" )--and did not advise Plaintiff of appropriate complaint procedures. Id.

Plaintiff alleges that in response to his allegations of discrimination, Mech placed Plaintiff directly under his supervision for the audit project and informed Plaintiff that he would be subjected to heightened scrutiny. Id. ¶ 26. Mech also began verbally assaulting Plaintiff whenever Plaintiff sought clarification on his work assignments. Id. In December 2010, Mech prepared an evaluation of the audit project, which Plaintiff alleges broke with standard operating procedure because the project was not complete. Id. ¶ 27. Mech's review of the project was " extremely negative in every category." Id.

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Plaintiff discussed the review with Mech and asked Mech if he continued to refuse to accept Plaintiff's homosexuality. Id. In response, Plaintiff alleges Mech stated: " I don't care, I had a conversation with you--that is my business--but this has put you in a position where you are under a closer watch, and you are not to question me-- this is how it is. Regardless, you do not question management." Id. Plaintiff further alleges that Mech stated that he was " damn angry" at Plaintiff for threatening to bring a claim for wrongful discrimination and harassment and said to Plaintiff: " You were going to string me out to dry, made accusations, put me in a position risked (sic) my job and position, and now this is the result. You are to do as you are told and not question me or management in this office. You do not have rights, this is a dictatorship." Id.

In February 2011, Mech issued another negative performance evaluation based upon allegedly incorrect facts and mischaracterizations. Id. ¶ 29. On March 9, 2011, Mech notified Plaintiff that he was being placed on a " 90-day written warning." Id. ¶ 31. A negative report following the review period would result in a denial of Plaintiff's level GS-11 within-grade-increase. Id. On March 16, 2011, Plaintiff met with Naomi Earp (" Earp" ), Director of the OIC, and initiated the Equal Employment Opportunity (" EEO" ) complaint process. Id. ¶ 34. Earp, who was familiar with Plaintiff's work, believed Plaintiff would benefit from a transfer from his current office, OIG, to the OIC. Id. ¶ 35. Earp asked Christopher if OIG would approve the transfer, but Christopher responded that Plaintiff was on track to be terminated within six months and that he would not approve the transfer. Id. Plaintiff does not now claim this denial of transfer as an adverse employment action. See Pl.'s Opp'n. at 14 n.1.

On June 24, 2011, Mech submitted his report following the 90-day written warning period finding Plaintiff's work to be only minimally successful and denied his within-grade-increase. Id. ¶ 36. Plaintiff informed Christopher, who in turn informed Mech, that Plaintiff was intending to appeal Mech's denial of his within-grade-increase. Id. ¶ 37. Shortly thereafter, Mech convened a meeting with Plaintiff and his co-workers and demanded that Plaintiff disclose to his co-workers that he intended to appeal the denial of his within-grade-increase, subjecting Plaintiff to a " hostile and abusive interrogation" until Plaintiff disclosed the details regarding his intent to appeal. Id. Plaintiff's appeal of the denial of his within-grade-increase was subsequently denied by Christopher on July 21, 2011. Id. ¶ 38; Def.'s Ex. B (Plaintiff's Formal Complaint of Discrimination), at 10.

Plaintiff alleges that the stress of his work environment caused him to require medical assistance and counseling. Id. ¶ 39. Plaintiff took paid sick leave from August 19, 2011, to September 23, 2011. Id. On September 28, 2011, upon returning to work, Plaintiff filed an informal complaint of discrimination with the OIC Office. Id. ¶ 40. On Plaintiff's informal complaint, Plaintiff marked " sex" and " reprisal" as the basis of the alleged discrimination. Def.'s Ex. A (Plaintiff's Informal Complaint of Discrimination). Plaintiff alleges that following the filing of his discrimination complaint, Mech and Christopher prevented Plaintiff's access to documents and other data, and continued to " harass, intimidate, and retaliate" against Plaintiff. Id. ¶ 41. Specifically, Plaintiff was criticized and penalized at work for taking time to prosecute his administrative action. Id. Christopher also demanded that Plaintiff request permission from the supervisors against whom he had filed his complaint before working

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on his administrative action during the workday. Id. ¶ 42. In addition, Plaintiff alleges that " on numerous occasions, Christopher followed and/or filmed [Plaintiff] while he was off-duty and away from the [Library of Congress]." Id. ¶ 43.

On October 12, 2011, Plaintiff took additional leave to continue medical treatment " to deal with the emotional stress created by Mech and Christopher's discriminatory treatment." Id. ¶ 44. Plaintiff filed his formal complaint alleging discrimination with the OIC on November 9, 2011. Id. ¶ 47. Plaintiffs formal complaint alleged discrimination based on religion, sex, sexual harassment, and reprisal. Def.'s Ex. B (Plaintiffs Formal Complaint of Discrimination). Plaintiff qualified for Family Medical Leave from October 12, 2011, to January 3, 2012. Id. ¶ ¶ 44, 48. Shortly after January 3, 2012, Plaintiff received a letter from Christopher declaring Plaintiff to be Absent Without Leave from work and directing him to return to duty. Id. ¶ 48. Christopher's letter stated: " . . . regardless of any health-related issue that you may be experiencing, your prolonged absence has had a negative impact on the Office of Inspector General . . . . Therefore, you are directed to immediately report for duty or contact me immediately to discuss your return to duty status. You are also advised that any further request for LWOP (leave without pay) will not be considered at this time." Id. ¶ 48. Plaintiff responded to Christopher that he would follow up with his doctors regarding his medical status. Id. ¶ 49. On March 29, 2012, Library of Congress Inspector General Karl Schornagel informed Plaintiff that he was considered Absent Without Leave and would be terminated from the Library of Congress on April 6, 2012, due to his failure to return to duty. Id. ¶ 51. Plaintiff alleges he was constructively terminated on April 4, 2012, because he was unable to return to a workplace where he had to confront constant discriminatory treatment from Mech and Christopher. Id. ¶ 54. On April 5, 2012, Plaintiff appealed through the Library of Congress's Adverse Actions appeals process Defendant's decision to terminate him. Id. ¶ 52. Plaintiff, however, does not now plead his actual termination by Defendant as an adverse employment action under Title VII, only his constructive termination. See Pl.'s Opp'n. at 18 n.5.

B. Procedural Background

On May 8, 2012, the Library of Congress issued its final agency decision denying Plaintiffs claims of discrimination. Id. ¶ 53. On August 3, 2012, Plaintiff filed the present lawsuit alleging eight counts against Defendant. Counts I through III allege, respectively, that Defendant violated Title VII by discriminating against Plaintiff based on sex, religion, and in retaliation for Plaintiff's protected activities. Specifically, Plaintiff alleges that Defendant subjected him to " harsh and discriminatory working conditions" and " constructively terminated" him from his position because Plaintiff, " as a homosexual male[,] did not conform to the Defendant's gender stereotypes associated with men under Mech's supervision or at the LOC." Id. ¶ ¶ 57-59. In Count II, Plaintiff's religious discrimination claim, Plaintiff alleges that Defendant subjected him to " harsh and discriminatory working conditions" and " constructively terminated" him from his position by discriminating against him for holding " religious beliefs that could not be reconciled with [Mech's] fundamentalist religious beliefs that refuse to embrace LGBT individuals." Id. ¶ ¶ 65-66, 68. Finally, in Count III, Plaintiff alleges that he was constructively terminated and subjected to a hostile work environment in retaliation for confronting Mech about discriminating against him " based upon his sexual

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orientation and religious beliefs." Id. ¶ ¶ 72, 84. Plaintiff also pleads an independent claim of constructive discharge (Count IV). Id. ¶ ¶ 88-92.

Counts V and VI present constitutional claims. In Count V, Plaintiff alleges that Defendant violated the Fifth Amendment's Due Process clause by " purposefully and intentionally discriminating against [Plaintiff]" because of Defendant's " prejudice towards homosexuals and/or persons whom do not conform to sex stereotypes recognized by the Defendant." Id. ¶ 96. Count VI, which Plaintiff pleads as an alternative to his Title VII sex discrimination claim, alleges that Defendant " engaged in impermissible sex discrimination in violation of the equal protection component of the Fifth Amendment's Due Process Clause." Id. ¶ 99. Specifically, Plaintiff alleges that Defendant " intentionally discriminated against [him] because his identity as a homosexual male represents a departure from sex stereotypes recognized by the Defendant." Id. ¶ 101.

Plaintiffs' last two counts allege violations of the Library of Congress Act and Library of Congress policies and regulations. In Count VII, Plaintiff alleges that Defendant violated the Library of Congress Act, 2 U.S.C. § 140, because under the Act, Plaintiff was " entitled to have decisions related to his employment considered 'solely with reference to [his] fitness for [the] particular duties' of the Management Analyst position" yet Plaintiff was terminated from his employment " for reasons wholly unrelated to his fitness for the particular duties of the Management Analyst position." Id. ¶ ¶ 105, 107. In Count VIII, Plaintiff alleges that Defendant violated Library of Congress Special Announcements 10-5 and 11-02 and Library of Congress Regulations LCR 2010-2, 2023-1, and 2023-2 by precluding Plaintiff from " a work environment free from harassment of any kind, including harassment on the basis of religion or sexual orientation." Id. ¶ 111.

Defendant now moves the Court to dismiss all eight Counts of Plaintiff's Complaint. First, Defendant argues that to the extent Plaintiff's claims are based on his constructive discharge and the denial of his within-grade salary increase, these claims should be dismissed because Plaintiff failed to timely exhaust his administrative remedies as to these discrete employment actions. Second, Defendant contends that Plaintiff's sex and religious discrimination and retaliation claims under Title VII should be dismissed for failure to state a claim. Third, Defendant moves the Court to dismiss Plaintiff's constitutional claims because they are preempted by Title VII. Lastly, Defendant contends that Plaintiff cannot sue the Library of Congress for violations of the Library of Congress Act or the Library's internal policies or regulations because there is no express waiver of sovereign immunity for such claims.


A. Dismissal for Failure to Exhaust Administrative ...

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