United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
BERMAN JACKSON United States District Judge.
27, 2015, Gwendolyn D. Pierce filed a lawsuit against
defendant James Mattis, in his official capacity as Secretary
of the United States Department of Defense. Compl. [Dkt. #
1], Plaintiff alleges that she received lower performance
evaluations than her peers based on her race, sex, and prior
protected activity, and that these poor ratings caused her to
receive lower pay in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 2OOOe et. seq. Compl.
On June 22, 2016, the Court denied defendant's motion for
summary judgment, see Mem. Op. & Order [Dkt. #
15], and defendant filed an answer on July 11, 2016. Answer
[Dkt. # 16]. Plaintiff has since moved for leave to file an
amended complaint under Federal Rule of Civil Procedure
15(a)(2). PL's Mot. for Leave to File Am. Compl. [Dkt. #
20] ("PL's Mot.").
Court will grant plaintiff s motion in part and deny it in
part. Plaintiff may add Count III, hostile work environment
in violation of Title VII, Count IV, violation of the
Rehabilitation Act of 1973, and Count V, retaliation in
violation of the Rehabilitation Act, since those claims had
not been administratively exhausted at the time plaintiff
filed her original complaint, and because defendant does not
oppose amending the complaint to include those claims. But,
plaintiffs proposed amendment with regard to Bivens
claim would be futile, so plaintiffs motion to amend her
complaint to include that claim will be denied.
is an African-American female who began her career at the
National Geospatial-Intelligence Agency ("NGA") in
1995 as a Visual Information Specialist. Compl. ¶¶
4, 7. In 2007, plaintiff was reassigned to the position of
Multimedia Specialist, Pay Band 4, with a base pay of $71,
693.00 and a total pay of $85, 021.00. Compl. ¶ 7.
Between 2007 and 2011, plaintiffs pay rose each year until
her total pay reached $98, 983.00. Compl. ¶ 8.
claims that she "received the lowest [performance]
rating of any Multimedia Band 4 employee and the lowest pay
increase" "[a]t the time of her 2009-2012
performance appraisal, " despite having seniority among
the other Band 4 employees and performing comparable work to
her peers who received higher ratings. Compl. ¶¶
22-23, 25, 30-31 (emphasis omitted). She alleges that the
lower rating, and ultimately lower salary increase, was the
result of race and sex-based discrimination and retaliation.
Compl. ¶¶ 35, 38.
2010, plaintiff filed an "informal EEO complaint"
against the NGA, alleging a "racially hostile work
environment" after an employee hung a monkey doll in a
noose in the workplace. Compl. ¶ 10. And in April 2011,
plaintiff filed a formal complaint with the Equal Employment
Opportunity Commission ("EEOC"), alleging race and
gender discrimination, as well as claims for unlawful
retaliation. Compl. ¶ 33. She received a notice of her
right to sue from the EEOC regarding the formal complaint on
March 2, 2015, Compl. ¶ 33, which led to the filing of
October 3, 2016, plaintiff filed her Motion for Leave to File
an Amended Complaint. PL's Mot. She seeks to add three
new claims that she contends had not been administratively
exhausted at the time she filed her original complaint: (1)
hostile work environment in violation of Title VII; (2)
violation of the Rehabilitation Act of 1973; and (3)
retaliation in violation of the Rehabilitation Act.
Id. at 1; see PL's Proposed First Am.
Compl. [Dkt. # 20-2] ("Proposed Am. Compl.")
¶¶ 73-81. Plaintiff also seeks to add a claim
pursuant to Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388 (1971) against
two additional parties - Special Agent Michael Gray and
Investigator Kay Pond. PL's Mot. at 1-2; Proposed Am.
Compl. ¶¶ 82-84.
facts related to plaintiffs Bivens action are set
forth in the proposed amended complaint. Plaintiff alleges
that in January 2012, she was placed on disability for carpel
tunnel syndrome, applied for and was granted workers'
compensation benefits, and was placed on leave. Proposed Am.
Compl. ¶ 46. In early 2013, plaintiff and her physician
advised the Office of Workers' Compensation Program
("OWCP") that plaintiff would need surgery on one
of her wrists. Proposed Am. Compl.¶47. Per the
OWCP's request, plaintiff submitted to an independent
medical examination ("1MB") in March 2013, and she
"specifically advised the [independent medical examiner]
of pastoral, volunteer and other activities she was engaging
in." Proposed Am. Compl. ¶ 48. Plaintiff claims
that the independent medical examiner "noted these
activities in [his] report and found that [her] performance
of these activities were inconsequential to her diagnosis or
his disability finding." Proposed Am. Compl. ¶ 48.
According to the proposed amended complaint, "[a]t
around the same time, about three unknown individuals walked
into NGA's Office of the Inspector General
[("OIG")] and opined that [plaintiff] was not
disabled, " and "Kay Pond, an investigator with
NGA's OIG and Michael Gray, a special agent with
[Department of Labor] OIG, embarked on a year-long witch-hunt
designed to create probable cause." Proposed
Am. Compl. ¶¶ 49-50 (emphasis in
proposed amended complaint states that in approximately March
2014, "the OIG investigators sought a search warrant
alleging that [plaintiff] had made false statements on an
OCWP form." Proposed Am. Compl. ¶ 52. Plaintiff
alleges that "Michael Gray executed a sworn affidavit to
the United States District Court for the District of Maryland
that 'over the last 2 years, [plaintiff] has never
reported any outside employment or related income to OWCP,
'" and that "[t]his averment was false."
Proposed Am. Compl. ¶ 52.
further alleges that the agents executed a search warrant of
her home in Maryland on April 17, 2014, and that plaintiff
was "physically assaulted during the course of the
search." Proposed Am. Compl. ¶ 53. Plaintiff claims
that, as a result of the search, "the United States
Attorney for the Eastern District of Virginia sent [her] a
letter advising her that she was the 'target' of a
criminal investigation related to the OWCP form."
Proposed Am. Compl. ¶ 55. Ultimately, on October 1,
2014, plaintiff pled guilty to one misdemeanor count of
making a false statement. Proposed Am. Compl. ¶ 56. In
the wake of the guilty plea, plaintiffs employer, the NGA,
issued a notice of proposed termination on November 6, 2014,
and plaintiff was terminated on December 16, 2016. Proposed
Am. Compl. ¶¶ 57, 59. However, at the sentencing
proceeding on December 23, 2016, the court permitted
plaintiff to withdraw her guilty plea, and it dismissed the
criminal charges in light of representations made by the
prosecution in connection with the calculation of the loss
under the U.S. Sentencing Guidelines. Proposed Am. Compl.
¶¶ 58, 60. According to the proposed amended
complaint, OWCP submitted a statement "that there was no
loss to the government since it had determined that
[plaintiff] was indeed disabled and eligible for workers
compensation despite her outside activities." Proposed
Am. Compl. ¶ 58.
plaintiff alleges in paragraph 61 of the proposed amended
complaint that both the prosecution and the termination of
her employment were in retaliation for her protected
activity, plaintiff proposes to bring a Bivens claim
against the two investigators in their personal capacities,
alleging that they violated plaintiffs rights under the
Fourth Amendment "when they subjected her to an
unreasonable search unsupported by probable cause."
Proposed Am. Compl. ¶ 83. (There are no counts
predicated on the assault that allegedly took place during
the execution of the warrant, nor does the complaint include
any allegation that either of the two investigators were the
ones who assaulted plaintiff). The proposed Count VI
concludes that as a result of the investigators' actions,
plaintiff "has suffered, and continues to suffer, severe
pain and suffering, " "emotional distress, "
"loss of earnings and other employment benefits and job
opportunities." Proposed Am. Compl. ¶ 84.
has opposed the motion for leave to amend, contending that
the amendment would be futile since the Bivens claim
would not survive a motion to dismiss on multiple grounds
including the statute of limitations, a lack of personal
jurisdiction over the investigators, and qualified immunity.
Def.'s Resp. to PL's Mot. [Dkt. # 22]
("Def's Opp.") at 3, 6-10, 13. On December 2,
2016, plaintiff replied in support of her motion. PL's
Reply Mem. in Supp. of PL's Mot. [Dkt. #25]
Court will deny plaintiffs motion for leave to amend the
complaint to add the Bivens claim since, even if the
three-year statute of limitations applies,  and even if the
Court could exercise personal jurisdiction over Investigator
Pond and Agent Gray,  plaintiff fails to state a claim upon
which relief can be granted because both agents are entitled
to qualified immunity. However, since defendant does not
oppose the addition of the other ...