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Richardson v. Board of Governors of Federal Reserve System

United States District Court, District of Columbia

March 31, 2017



          ROSEMARY M. COLLYER United States District Judge

         Edward Richardson worked as a law enforcement officer for the Board of Governors of the Federal Reserve System (the Board) in the Law Enforcement Unit (LEU) §from June 8, 2009, until his termination on June 7, 2010. This is the third in a series of actions Mr. Richardson has brought pro se against the Board or its employees, alleging actions that he believes led to his wrongful termination or have prevented him from future employment.

         I. BACKGROUND

         A. Factual Background

         Mr. Richardson sues both the Board and the United States under the Privacy Act of 1974, 5 U.S.C. § 552a et seq.; the Freedom of Information Act, 5 U.S.C. § 552 et seq.; the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), 5 U.S.C. § 2301 et seq.; the whistleblower provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1831j; the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; and the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.; in addition to a claim that his Fifth Amendment right to due process was violated.

         In October 2014, Mr. Richardson filed suit against the Board and seven of the Board's employees for a variety of claims but only claims under the Rehabilitation Act of 1973, 29 U.S.C. § 791, survived a motion to dismiss and are now pending before the Court. Richardson v. Yellen, 167 F.Supp.3d 105, 118 (2016) (Richardson I). In April 2016, Mr. Richardson brought a suit against the same seven employees, which is currently pending before the Court. Richardson v. Sauls, et al., No. 16-794 (D.D.C., filed April 28, 2016) (Richardson II). On May 6, 2016, Mr. Richardson filed the current matter against the Board. See Complaint [Dkt. 1]. He subsequently amended the instant complaint to add several claims under the FTCA against the United States. See First Amended Complaint [Dkt. 17]; Second Amended Complaint [Dkt. 20].

         The facts alleged in this case have already been recited in detail in this Court's opinion in Richardson I. 167 F.Supp.3d at 108. Only the most pertinent facts need be reiterated here. Prior to his employment with the Board, Mr. Richardson was a military police officer in the United States Army. While deployed to Iraq in 2003, Mr. Richardson was subjected to fumes and toxins that apparently led to severe asthma and allergies. Before he was hired by the Board, Mr. Richardson informed them of this medical condition. Mr. Richardson began working for the Board on June 8, 2009. In approximately October 2009 and again in November 2009, Mr. Richardson requested a reasonable accommodation for his medical condition. Neither of these requests was acknowledged or addressed by the Board. Mr. Richardson was terminated by the Board on July 7, 2010.

         Mr. Richardson alleges that Board employees conspired to remove 22 medical documents supporting instances when he had been absent from work for medical reasons (“calloffs”) from his personnel file. Second Am. Compl. ¶¶ 26, 127. Mr. Richardson was informed that his termination was based on the lack of support for his absences. Id. ¶ 20.

         Following his termination, in 2010 and 2011, Mr. Richardson alleges that Board employees Billy Sauls and Albert Pleasant illegally obtained his cellphone records without his knowledge and then released those cellphone records to other Board personnel in violation of the Privacy Act. Id. ¶¶ 60-62.

         On October 16, 2014, Mr. Richardson initiated a complaint with the Attorney Grievance Commission of Maryland (Maryland Commission) against Kevin May, one of the Board members he alleges conspired to remove medical documents from his personnel file. On January 11, 2015, Mr. May sent certain documents from Mr. Richardson's personnel file to the Attorney Grievance Commission of Maryland in response to that complaint. Mr. Richardson alleges that this disclosure violated the Privacy Act. Id. ¶ 65, Ex. D. Mr. Richardson also alleges that Lieutenant James McCoy sent a mass email to the Board Management Division containing Mr. Richardson's medical documents. Id. ¶ 76. Mr. Richardson complained about this disclosure to several Board employees but no further action was taken. Id. ¶ 77.

         LEU Deputy Chief Marvin Jones authored a Notice of Suspension Without Pay dated May 20, 2010 directed to Mr. Richardson. Mr. Richardson alleges the Notice was falsified and that he was never suspended or received the Notice. Id. ¶ 78. In Richardson I, Defendants admitted that Mr. Richardson never received the Notice, explaining that it was “because his provisional Board employment was terminated.” Richardson I, No. 14-cv-1673, Answer [Dkt. 28] ¶ 59. Nonetheless, the Notice was placed in Mr. Richardson's personnel file and in the Report of Investigation (ROI) from the Equal Employment Opportunity Commission's investigation.[1]

         Mr. Richardson has remained unemployed since his termination from the Board. He attributes his unemployment to the Board's continued actions against him and in particular, alleged tampering with his personnel file. He bases this accusation on information from the D.C. Department of Corrections to the effect that he was ineligible for employment due to records in his personnel file, which records he alleges were falsified. As a result, Mr. Richardson claims to have experienced post-traumatic stress disorder.

         B. The Amended Complaint

         Mr. Richardson filed his initial complaint in this matter on May 9, 2016 naming only the Board as a Defendant. At that time, the complaint included six claims under the Privacy Act, FOIA, 12 U.S.C. § 1831j, and the No FEAR Act, which requires agencies to notify and train all employees about their rights and remedies under federal anti-discrimination and whistleblower laws. Compl. [Dkt. 1]; see 5 C.F.R. § 724.202(a). On July 22, 2016, Mr. Richardson filed an Amended Complaint, adding three claims against the United States for alleged violations of the Federal Tort Claims Act. Am. Compl. [Dkt. 17]. The Court's order granting Mr. Richardson leave to file an amended complaint stated that Mr. Richardson was to file no later than August 5, 2016. Mr. Richardson mistook this instruction to mean that he could amend and refile a further amended complaint any time before August 5, 2016, which he did on August 4, 2016. See Motion for Leave to File Second Amended Complaint [Dkt. 21]; Second Am. Comp. [Dkt. 20]. The Second Amended Complaint included two additional claims against the Board and is the operative Complaint. Counts One to Eight name the Board as Defendant and Counts Nine to Eleven name the United States.

         Count One of the Second Amended Complaint alleges a violation of the Privacy Act and FOIA for the removal of twenty-two medical documents from Mr. Richardson's personnel file.

         Counts Two, Three, and Six allege violations of the Privacy Act, FOIA, and 12 U.S.C. § 1831j for the release of information from Mr. Richardson's personnel file to the Maryland Commission (Count Two); the release of Mr. Richardson's medical documents in a mass email to Board personnel (Count Three); and the alleged illegal search and seizure of Mr. Richardson's cellphone and dissemination of his cellphone records (Count Six).

         Count Four alleges violations of the Privacy Act and 12 U.S.C. § 1831j for the placement of a falsified suspension notice in Mr. Richardson's personnel file.

         Counts Five and Seven allege violations of 12 U.S.C. § 1831j for retaliation against Mr. Richardson for his disclosure that there were medical documents missing from his personnel file (Count Five); and the denial of his termination appeal (Count Seven).

         Count Eight alleges a violation of the Administrative Procedure Act for failure to comply with the statutorily mandated requirements of the Privacy Act, FOIA, No FEAR Act, and 12 U.S.C. § 1831j.

         Counts Nine through Eleven are claims against the United States under the Federal Tort Claims Act for wrongful termination (Count Nine); obtaining cellphone records (Count Ten); and intentional infliction of emotional distress (Count Eleven).

         Finally, Mr. Richardson claims that his due process rights under the Fifth Amendment of the Constitution have been violated. Mr. Richardson's termination appeal was denied by the Board Ombudsman who determined that Mr. Richardson was terminated for too many tardy arrivals, not for absences. Mr. Richardson claims that by giving him misinformation regarding the basis of his termination, the Board violated his due process rights because it prevented him from adequately challenging his discharge.

         II. ...

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