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Pierce v. Mattis

United States District Court, District of Columbia

June 16, 2017

GWENDOLYN D.PIERCE, Plaintiff,
v.
JAMES MATTIS,[1] In His Official Capacity as Secretary of the Department of Defense, Defendant.

          MEMORANDUM OPINION & ORDER

          AMY BERMAN JACKSON United States District Judge.

         On May 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.").

         The 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.

         BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         In June 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 this lawsuit.

         On 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.

         The 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 original).

         The 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.

         Plaintiff 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.

         While 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.

         Defendant 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] ("PL's Reply").

         The 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, [2] and even if the Court could exercise personal jurisdiction over Investigator Pond and Agent Gray, [3] 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 ...


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