United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Edward Richardson has filed suit pro se against his former employer, the Federal Reserve Board of Governors, and seven individual Defendants for a variety of constitutional torts, common-law torts, and statutory violations that he alleges occurred during his employment with the Board as a law enforcement officer. Defendants move to dismiss all claims except those alleging disability discrimination. For the reasons stated below, the motion will be granted.
The well-pleaded facts alleged in the operative complaint must be taken as true in this procedural posture. Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015). The Court also considers the arguments and allegations in Mr. Richardson’s opposition memorandum. Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015); Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).
Only a summary of the pleaded facts is necessary here, as the claims at issue fail for various and purely legal reasons. That is to say, none of Mr. Richardson’s claims will be dismissed for failure to muster sufficiently plausible facts.
A. The Facts Alleged
Edward Richardson was a military police officer in the United States Army. While deployed to Iraq in 2003, he was repeatedly subjected to fumes and toxins emanating from burning human waste. While in Iraq, he was diagnosed with “severe persistent asthma/allergies, ” which is “a life-threatening illness.” Am. Compl. ¶¶ 6, 14.
Between June 8, 2009 and June 7, 2010, Mr. Richardson worked for the Board of Governors of the Federal Reserve System (the Board) as an officer in the Law Enforcement Unit (LEU). Before Mr. Richardson was hired, he told the Board about his medical condition. Four months into his job, he requested “a reasonable accommodation.” Id. ¶ 10. He made a second request one month later. Id. ¶ 13. Despite these requests, he was “subjected to inclement weather, both hot and cold, ” and “outdoor allergens” that “exacerbated the symptoms” of his condition. Id. ¶ 16. It is alleged that at all relevant times, Defendants were aware of Mr. Richardson’s requests and ignored them.
Between October 2009 (when Mr. Richardson made his first request) and June 2010 (when he was terminated) the Board allegedly refused to engage in the “interactive process” prescribed by the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). Id. ¶ 20. Mr. Richardson alleges that he further suffered “severe and hostile working environment and derogatory name calling, ” and that Defendants “failed to act when [he] reported the behavior as offensive.” Id. ¶¶ 21, 23. Further, Mr. Richardson was accused of missing work without medical justification, was denied a promotion, and was denied the opportunity to work on the “hybrid shift.” Id. ¶ 33. Mr. Richardson was also made to work three different shifts each week, unlike any other LEU officer, “as a form of punishment for requesting a reasonable accommodation for [his] recorded disability.” Id. ¶ 39.
Mr. Richardson alleges that he was subjected to “slanderous and libelous defamation, ” both before and after his June 2010 termination. E.g., id. ¶ 45. For example, Defendants Albert Pleasant and Billy Sauls allegedly conspired against Mr. Richardson in a “cell phone spoofing scandal” and Mr. Sauls is alleged to have “maliciously accused [Mr. Richardson] of vandalizing the vehicles of two Board LEU officers.” Id. ¶¶ 47, 48. The latter caused a Charles County Deputy Sheriff to visit Mr. Richardson’s home.
Certain Defendants-sometimes “engag[ing] in a conspiracy”-are also alleged to have intentionally removed medical documents from Mr. Richardson’s file prior to terminating him in June 2010. Id. ¶¶ 21, 24. Mr. Richardson reported this “to [Larence] Dublin and [Marvin] Jones” and also “to [Billy] Sauls.” Id. ¶ 29. The harassment by Robert Bakale, LEU Sergeant, only worsened. For example, Mr. Bakale authorized his subordinate, Senior Officer Bhatia, to call Mr. Richardson “sumo.” Id. ¶ 30. Defendant Kevin May is also alleged to have removed Mr. Richardson’s “Board separation letter; [his] Board separation appeal letter, and [Mr. May’s] EEO investigative affidavit” from Mr. Richardson’s personnel file. Id. ¶ 51. Mr. May also allegedly removed a Report of Investigation (ROI) from the Board’s offices.
Defendant Albert Pleasant, “acting under color of state law, ” is alleged to have unlawfully accessed Mr. Richardson’s cell phone records by using Mr. Pleasant’s investigation as a pretext. Id. ¶ 49. Mr. Pleasant and others are also alleged to have “submitted false documentation to [four] separate law enforcement agencies, ” which spurred a “malicious prosecution process.” Id. ¶ 50.
Mr. Richardson alleges a host of “fabricated evidence” and “perjurious testimony” by numerous individual Defendants and third parties. See generally Id. ¶¶ 55-144. The Court will not further parse these allegations because, as stated below, they fail as a matter of law.
B. The Amended Complaint
Mr. Richardson’s Amended Complaint contains various claims. Count I alleges a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), due to the failure to accommodate Mr. Richardson’s “asthmatic/allergy disability.” Am. Compl. ¶ 184. Mr. Richardson alleges here, as he does elsewhere, that this “violated [his] clearly established constitutional rights to a reasonable accommodation, under Title I of the [ADA] and the Civil Rights Act of 1964, ” 42 U.S.C. 2000e et seq. Am. Compl. ¶ 187 (emphasis added). Neither the Civil Rights Act nor the Constitution requires accommodations for disabled persons. Miller v. Clinton, 687 F.3d 1332, 1339 & n.6 (D.C. Cir. 2012) (citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001)). The Court will construe Count I as claiming a violation of the ADA only.
Count II alleges “Disability Discrimination, ” also due to Mr. Richardson’s “asthmatic/allergy disability.” Id. ¶ 191. Again, Mr. Richardson conflates statutes and adds constitutional flavoring. Id. ¶ 190 (“I allege that I am a ‘qualified individual, ’ with a recorded disability, protected under Title I of the Americans with Disabilities Act of 1990 and the Civil Rights Acts of 1964.”); id. ¶ 198 (“Defendants . . . violated my clearly established constitutional rights under Title I of the Americans with Disabilities Act of 1990.”). Neither of the cited statutes, nor the Constitution, prohibits disability-based discrimination against federal employees; rather, “the Rehabilitation Act [of 1973, 29 U.S.C. § 791] is the exclusive remedy for federal employees alleging disability discrimination.” Welsh v. Hagler, 83 F.Supp. 3d 212, 222 (D.D.C. 2015) (collecting cases). The Court will construe Count II as alleging disability discrimination under the Rehabilitation Act, an allegation that Defendants do not move to dismiss. See Mot. to Dismiss [Dkt. 17] (Mot.) at 1.
Count III alleges “Wrongful Termination” insofar as Mr. Richardson’s termination on June 7, 2010 was discriminatory and the Board’s stated reasons were pretextual. Mr. Richardson alleges that instead of being terminated “due to a breach of security, ” he was terminated because of his medical condition. Am. Compl. ¶ 207. In his opposition memorandum, Mr. Richardson alleges that he “was denied a promotion opportunity.” Opp’n at 2. Count III also contains the legally distinct allegation that Defendants “intentionally and maliciously remov[ed] official medical documents from [Mr. Richardson’s] LEU file.” Am. Compl. ¶ 212. Mr. Richardson’s opposition argues that this action violated both the Rehabilitation Act and the Privacy Act of 1974, 5 U.S.C. § 552a. Opp’n at 5 (“The confidentiality and protection of my disability medical documents are protected by the Rehabilitation Act of 1973 . . . and the Privacy Act of 1974 codified 5 U.S.C. § 552a.”); see also, e.g., Am. Comp. ¶ 1b (“. . . official medical call-off documents had been intentionally removed (5 U.S.C. §§ 552a and 2302) from my LEU file by co-Defendants.”).
Count IV alleges defamation of character, a tort at common law. Am. Compl. ¶¶ 214-23. It is alleged that Defendants’ lies about the number of “unexcused call-offs” Mr. Richardson had, id. ¶ 218, and lies about whether he turned in required medical documents, id. ¶ 221, caused “irreparable and permanent damage, to both [Mr. Richardson’s] professional and personal characters, ” id. ¶ 215.
Embedded within Count IV are sub-allegations of “telephone spoofing and vehicle vandalism, ” id. ¶¶ 224-34 and “prohibited personnel practices under 5 U.S.C. §§ 552a and 2302, ” id. ¶¶ 235-40. Defendant Billy Sauls, former LEU Chief, is alleged to have “knowingly and willingly provided an official law enforcement Agency with false information to evade an investigation while providing slanderous statements” about Mr. Richardson. Id. ¶ 226. It is also alleged that Defendant Albert Pleasant, LEU Senior Special Agent, “willingly and intentionally defamed [Mr. Richardson’s] character to gain access to [his] cell phone records, by claiming that [Mr. Richardson] was involved in a spoofing scandal against the Board.” Id. ¶ 230. Defendant Pleasant is also alleged to have acted under color of state law, “accessing [Richardson’s] cell phone records with malicious intent” in violation of the Fourth Amendment. Id. ¶ 231. Defendant Pleasant allegedly further engaged in “entrapment and deception techniques” in violation of Mr. Richardson’s Fifth Amendment rights. Id. ¶ 233. Defendant Kevin May, Employee Relations Specialist, is alleged to have engaged in the “prohibited personnel practice” of knowingly removing certain documents from Mr. Richardson’s personnel file: a separation letter; the denial of an appeal; and an investigative affidavit. Id. ¶¶ 235-36. All Defendants are accused of “knowingly, willingly, and with malicious disregard for established laws, falsified testimony under penalty of perjury, while knowingly defaming [Mr. Richardson’s] character, with intentional malice, to support their cause that resulted in [his] termination from Board employment.” Id. ¶ 238. Defendants’ actions allegedly resulted in Mr. Richardson’s termination and in a criminal investigation of him, which impaired his subsequent job search. Ultimately Mr. Richardson “had to seek emergency assistance for food and shelter.” Id. ¶ 239.
Count V alleges “Whistleblower Retaliation, ” in violation of 5 U.S.C. § 2302(b)(8). Id. ¶¶ 241-54. Mr. Richardson asserts that he made a protected disclosure of prohibited personnel activity to Defendants Dublin (LEU Lieutenant), Jones (LEU Deputy Chief), Sauls (LEU Chief), and May (Employee Relations Specialist). As a result, Mr. Richardson was “forced to work 3 different shifts weekly, until [his] June 7, 2010 termination.” Id. ¶ 243. Defendants Bakale (LEU Sergeant) and Coble (Administrative Lieutenant) allegedly retaliated further by removing medical documents from Mr. Richardson’s file so that he could be terminated before his probationary period was over. Id. Mr. Richardson claims that he also suffered retaliation through “intensified personnel actions, ” such as denial of promotion, denial of accommodation, and derogatory name calling. Id. ¶ 253.
Count VI alleges “Disparate Treatment” and “Disparate Impact, ” which the Court will construe as duplicative of Mr. Richardson’s Rehabilitation Act claim, his ADA claim, or both. See Id. ¶¶ 255-69. Mr. Richardson does not cite the statutory or common-law basis for Count VI. He alleges membership in a “protected group” and that he was “treated less favorably” than non-members by Defendants, who “displayed discriminatory intent.” Id. ¶¶ 256, 257. He alleges “workplace harassment” and the denial of a “reasonable accommodation.” Id. ¶ 257. ...