United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
Kessler United States District Judge
Richard Hornsby ("Plaintiff, " "Hornsby")
brings this lawsuit against the Director of the Federal
Housing Finance Agency ("Defendant, "
"Government, " or "FHFA"). Plaintiff
alleges two counts of retaliation in violation of Title VII
of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. §2000e et seq. Complaint ¶¶
26-29. Specifically, Plaintiff alleges that he was placed on
administrative leave and then proposed for removal from his
position because he agreed to settle a retaliation complaint
brought against FHFA by one of his subordinates. See
generally Complaint. Plaintiff seeks compensatory
damages of $300, 000, plus interest, improved performance
ratings and any resultant bonuses, plus interest, crediting
of annual and sick leave for the time he remained on
administrative leave, and attorney's fees and costs.
Id. at p. 14-15.
to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Defendant filed its Motion to Dismiss on June 23, 2016. Mot.
to Dismiss [Dkt. No. 7]. Plaintiff filed his Opposition on
July 14, 2016. Opp'n [Dkt. No. 9]. Defendant filed a
Reply on July 21, 2016. Reply [Dkt. No. 10]. Upon
consideration of the Motion, Opposition, Reply, and the
entire record herein, and for the reasons stated below,
Defendant's Motion to Dismiss is granted.
Hornsby's Early Tenure at FHFA
Hornsby was hired as the Chief Operating Officer
("COO") of FHFA on December 6, 2011. Complaint
¶ 5. Initially, Hornsby reported to Edward DeMarco
("DeMarco"), who had been the previous COO of FHFA
but was serving as the Acting Director at the time of
Hornsby's hire. Id. at ¶ 9. For 2 012/
Hornsby's first full year as COO, DeMarco rated his
performance as "Outstanding" and gave him a bonus
of $17, 500 and a retention allowance of over $25,
Deterioration in Relationship between Hornsby and
in 2013, Melvin Watt was nominated to be the Director of
FHFA. Id. at ¶ 10. DeMarco allegedly became
concerned that if Watt were confirmed, he would be forced
into a position with significantly less authority than that
of either Acting Director or COO. Id. When it became
evident in September 2 013 that Watt would likely be
confirmed, DeMarco allegedly began a campaign of
"criticism and abuse" intended to drive Hornsby
from FHFA so that DeMarco could take back his position as
example, in September 2013 DeMarco cancelled Hornsby's
retention bonus, and in December 2013 DeMarco informed
Hornsby that he would be receiving a critical performance
rating for 2013. Id. at ¶ 11. On March 11,
2014, DeMarco provided Hornsby with his 2013 performance
review, rating his performance "Fully Successful."
Id. This rating was two levels below the 2012 rating
of "Outstanding, " and made Hornsby ineligible for
a cash bonus. Id. at ¶¶ 11, 12.
took office as the Director of FHFA on January 6, 2014.
Id. at ¶ 12. DeMarco reverted to a Deputy
Director position, and tendered his resignation from FHFA in
late March 2 014, to be effective at the end of April 2014.
Issues Arise between Hornsby and Subordinate during Same
this same time period, Hornsby alleges that he was beginning
to lose confidence in one of his subordinates, Jeffrey
Risinger ("Risinger"), the head of FHFA's Human
Resources Unit. Id. at ¶ 14. According to
Hornsby, he had initially supported Risinger after a
retaliation complaint was brought against him by his
subordinate, Marie Harte ("Harte"). Id. at
¶ 15. On Friday, April 25, 2014, Hornsby, in his
capacity as FHFA's settlement officer for Equal
Employment Opportunity (EEO) claims, attended a mediation
session related to Harte's EEO complaint. Id. In
this meeting, Hornsby came to believe that Risinger had lied
to him about the issues raised in Harte's EEO complaint,
and therefore decided to settle her complaint. Id.
Risinger Reports that Hornsby Threatened DeMarco
following Monday, April 28, 2014, Risinger reported to FHFA
officials that Hornsby had made statements threatening
DeMarco's life and physical safety. Id.
Specifically, Risinger reported that Hornsby said, among
other things: "I can understand how someone could go
postal, [sic] if I decide to take myself out I will
walk into Ed DeMarco's office and blow his brains out and
then kill myself"; that he would shoot DeMarco in the
kneecap and state "don't [expletive redacted] with
me"; and that he would "rip [DeMarco] limb by limb
from his office." Ex. B to Mot. to Dismiss [Dkt. No. 7-3
at p. 3-4].
alleges that Risinger's report was "pure
invention" and that he "never asserted any such
threats." Complaint at ¶ 16. Instead, he alleges
that Risinger fabricated these threats in retaliation for
Hornsby's decision to settle Harte's EEO complaint
against Risinger. Id. at ¶ 25.
Hornsby Is Placed on Administrative Leave
same day as Risinger reported the purported threats, FHFA
management placed Hornsby on administrative leave and had him
immediately escorted from the building. Id. at
¶ 17; Ex. A to Mot. to Dismiss [Dkt. No. 7-2 at p. 2].
The letter placing him on administrative leave states that
his administrative leave would last "until further
notice, " while the allegations against him were
investigated, and that he would receive his usual pay and
benefits while on leave. Id. [Dkt. No. 7-2 at p.
agents from FHFA's Office of the Inspector General (OIG)
interviewed Hornsby and then placed him under arrest.
Complaint at ¶¶ 17, 18. Hornsby was initially
charged with three felonies, Id. at ¶ 18, but
the charges were later reduced to two misdemeanors.
Id. at ¶ 20.
he was awaiting trial, Hornsby received multiple settlement
offers from FHFA, including from Watt directly. Id.
at ¶¶ 19, 20. Though the terms of these offers are
not specified in detail in the Complaint, Hornsby claims that
FHFA offered him a "buy-out" and the dismissal of
charges if he left the agency. Id. Hornsby was told
that if he refused the settlement he would be terminated
regardless of the outcome of the trial. Id.
Hornsby Is Tried, Acquitted, and Thereafter Removed from
Employment at FHFA
November 2 014, a bench trial was held in D.C. Superior Court
on the two misdemeanor charges against Hornsby. Id.
at ¶ 21. On November 20, 2014, Hornsby was acquitted of
both charges. Id. Following his acquittal, ...