United States District Court, District of Columbia
CASSANDRA M. MENOKEN, Plaintiff,
KATHLEEN MCGETTIGAN Acting Director, United States Office of Personnel Management, et al., Defendants.
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
January 15, 2016, plaintiff Cassandra M. Menoken, who has
filed a case against the United States Office of Personnel
Management ("OPM") in this court previously, Am.
Compl. [No. 1:03-cv-01775, Dkt. # 8] (referred to in this
opinion as "Menoken I Compl."), filed two
more lawsuits proceeding pro se: one against OPM and
the Social Security Administration ("SSA"), and the
other against OPM and the United States Department of Health
and Human Services C'HHS"). In one case, plaintiff
alleges that OPM and SSA violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
("Title VII"), by retaliating against her because
she engaged in protected activity. Am. Compl. [No.
1:16-cv-0084, Dkt. # 9] C Menoken II Compl.")
¶ 1. In the second case, she alleges that OPM and HHS
violated Title VII by discriminating against her based on her
race, and retaliating against her because she engaged in
protected activity. Am.Compl. [No. 1:16-cv-0083, Dkt. # 8]
(Menoken III Compl.") ¶ 1. Plaintiffs
claims all arise out of her attempt to become an
Administrative Law Judge ("ALJ").
October 11, 2016, defendants filed a consolidated motion to
dismiss plaintiffs complaints under Federal Rule of Civil
Procedure 12(b)(6), arguing that: (1) plaintiffs claims in
Menoken II are barred under the doctrines of res
judicata and issue preclusion, and (2) plaintiff has
failed to allege sufficient facts in Menoken III to
state claims of discrimination and retaliation. Defs.'
Mot. to Dismiss [No. 1:16-cv-0084, Dkt. # 11]
("Defs.' Mot."); Mem. of P. & A. in Supp.
of Defs.' Mot. [No. 1:16-cv-0084, Dkt. # 11-1]
("Defs.' Mem."); Defs.' Mot. [No.
1:16-cv-0083, Dkt. # 10]; Defs.' Mem. [No. 1:16-cv-0083,
Dkt. # 10-1]. On October 31, 2016, plaintiff opposed
defendants' motion, PL's Consolidated Mem. in Opp. to
Defs.' Mot. [No. 1:16-cv-0084, Dkt. # 14] ("PL's
Opp."); PL's Opp. [No. 1:16-cv-0083, Dkt. # 13], and
defendants have replied. Defs.' Reply in Supp. of
Defs.' Mot. [No. 1:16-cv-0084, Dkt. # 15]
("Defs.' Reply"); Defs.' Reply [No.
1:16-cv-0083, Dkt.#14], After considering the parties'
submissions, the Court will grant defendants' motion to
dismiss plaintiffs retaliation claim against OPM and SSA in
Menoken II because it is precluded under the
doctrines of res judicata and issue preclusion. The
Court will also grant defendant's motion to dismiss
plaintiffs retaliation claim against HHS, but it will deny
the motion to dismiss plaintiffs claim of retaliation against
OPM and plaintiffs claim of discrimination against OPM and
HHS in Menoken III
is an African American female living in Washington, D.C., who
has been applying for an ALJ position since 1993. Menoken
III Compl. ¶ 4. The ALJ application process
includes a competitive examination administered by OPM, the
results of which are then used by agencies seeking to hire
ALJs. See Id. ¶¶ 16, 31.
exclusive control over the process used to refer applicants
to be considered for ALJ positions. Menoken III
Compl. ¶ 5. OPM maintains an "ALJ Register"
that ranks applicants in descending order based on their
examination scores. Id. ¶ 16. Upon request, OPM
provides "certificates of eligibles" to agencies
looking to hire ALJs. Id. ¶ 31. These
certificates contain names of applicants based on their ALJ
examination score ranking and their geographic availability,
and they usually list at least three applicants for each
vacancy an agency is seeking to fill.
1993, plaintiff took the ALJ examination administered by OPM.
Menoken II Compl. ¶ 4. OPM then created an ALJ
Register using the scores of applicants who had completed the
1993 ALJ examination, and that ALJ Register was used for the
next fourteen years until it was replaced in 2007 based on
the results of a new examination. Id. ¶¶
March 2001, OPM issued a certificate to SSA containing the
names of eligible candidates for ALJ positions that SSA was
seeking to fill. Menoken II Compl. ¶ 36. The
certificate was based on the 1993 rankings. Id.
¶ 22. SSA then used this certificate to make ALJ
selections in April 2001, and communicated offers to
selectees in September 2001. Id. ¶ 54.
Plaintiff s name was not on the certificate for
consideration. See Id. ¶ 39.
2005, OPM compiled four certificates of eligibles for HHS,
which was seeking to hire a total of fifty ALJs for
assignment to four locations. Menoken III Compl.
¶ 38. Instead of issuing one certificate with potential
ALJ candidates, which plaintiff describes as the typical
method, OPM gave HHS "four small ALJ certificates"
- one for each geographic location. Id. ¶¶
44, 46. Each certificate listed candidates in order of their
ALJ examination scores and their geographic availability.
Id. ¶ 32. Even though plaintiff had indicated
that she was available for all four of the geographic
locations involved, her name was not on any of the
certificates. See Id. ¶¶ 38, 49. Plaintiff
claims that had the "normal practice" been used,
her name would have been included on the single large
certificate for ALJ consideration because that list would
have included at least 150 ALJ candidates.
II. Related Cases
has sued OPM before. She filed a complaint with the Equal
Employment Opportunity Commission ("EEOC") in 1994,
and then brought an action in the U.S. District Court for the
District of Columbia in 2003. Both proceedings have been
Menoken v. OPM, EEOC No. 100-95-7644X ("EEOC
plaintiff took the ALJ examination in 1993, she filed a
formal charge with the EEOC against OPM in May of 1994.
See Ex. 1 to Defs.' Mot. [No. 1:16-cv-0084, Dkt.
# 11-2] ("EEOC Order") at 1; see also Menoken
v. Whipple, 605 F.Supp.2d 148, 150 (D.D.C. 2009)
(describing the procedural history of plaintiff s case).
Plaintiff alleged that the ALJ examination and selection
process violated Title VII by discriminating against African
American and female applicants through its design and
implementation. EEOC Order at 3. Specifically, plaintiff
claimed that several of the examination components,
including many of the Supplemental Qualification Statement
("SQS") benchmarks used to award points to exam
takers, had a disparate impact on African American and female
applicants. Id. at 1-2, 49.
November 9, 2000, the Administrative Judge presiding over the
case found that the "partner benchmark" used in the
SQS portion of the ALJ examination violated Title VII. EEOC
Order at 53. This component, which awarded points to
applicants who were partners at large law firms, was found to
create an "adverse impact on the basis of race."
Id. at 50. The remainder of plaintiffs
discrimination claims were rejected by the Administrative
Judge. Id. at 61. The Administrative Judge ordered
OPM to "cease use of that benchmark" and to stop
relying on it during the ALJ hiring process. Id. OPM
was required to review the scores of all applicants on the
1993 ALJ Register, adjust their scores and rankings if they
had been affected, and notify agencies using the 1993 ALJ
Register of the discriminatory benchmark and the EEOC Order.
Menoken III Compl.¶¶ 17-19, 21.
August and September 2001, plaintiff filed two appeals with
the EEOC, alleging that OPM had failed to comply with the
EEOC's Order and that the Administrative Judge had
erroneously rejected her other claims. See
Defs.' Mem. at 4; Whipple, 605 F.Supp.2d at 151.
The EEOC rejected the appeals in May 2003. Defs.' Mem. at
4; Whipple, 605 F.Supp.2d at 151. Plaintiff then
sought reconsideration of the EEOC's May 2003 decision,
but because she filed a civil action in the U.S. District
Court for the District of Columbia also alleging that OPM had
not properly implemented the EEOC's Order, the EEOC
dismissed the request for reconsideration. Defs.'Mem. at
Menoken v. Whipple, 605 F.Supp.2d 148 (D.D.C. 2009)
August 2003, plaintiff brought an action in the U.S. District
Court for the District of Columbia, alleging that OPM was in
"willful violation" of the EEOC Order and that
OPM's administration of the ALJ selection process
unlawfully discriminated against African American and female
applicants in violation of Title VII under the theories of
disparate impact and disparate treatment. Menoken I
Compl. ¶¶ 1-3; Whipple, 605 F.Supp.2d at
151-52. In March 2009, the court granted summary judgment for
OPM on all counts. Whipple, 605 F.Supp.2d at 156.
The court held that OPM was in compliance with the EEOC Order
to eliminate the partner benchmark component from the ALJ
examination, and that there was insufficient evidence of
discrimination to support the disparate impact and disparate
treatment claims to survive summary judgment. Id. at
Menoken v. Cobert, et al., No. 1:16-cv-00084 (D.D.C.
2016) ("Menoken II")
January 15, 2016, plaintiff filed two complaints with this
Court, and she filed an amended complaint in each case on
August 23, 2016. Menoken II Compl.; Menoken
III Compl. The first, Menoken v. Cobert, No.
1:16-cv-0084, asserts Title VII retaliation claims against
OPM and SSA. Menoken II Compl. ¶ 1. Plaintiff
alleges that in March 2001, OPM and SSA manipulated the ALJ
selection process to deny plaintiff consideration for an ALJ
position because she was a party in the 1994 EEOC Action.
See Id. ¶¶ 40-41, 55; see also
Id. at 11. Specifically, plaintiff claims that "OPM
was determined to do whatever necessary to ensure that
[p]laintiff would not benefit from her success" in the
EEOC Action and that SSA was a "willing and like-minded
partner." Id.¶¶ 40-41.
Menoken v. Cobert, et al., No. 1:16-cv-00083 (D.D.C.
2016) (“Menoken III")
second action filed on January 15, 2016, Menoken v.
Cobert, et al., No. 1:16-cv- 0083, plaintiff brings
Title VII discrimination and retaliation claims against OPM
and HHS. Menoken III Compl. ¶ 1. Plaintiff
alleges that because she was a party in the 1994 EEOC Action,
OPM and HHS retaliated against her in 2005 by deviating from
the normal selection process in creating "four small ALJ
certificates" instead of one large certificate with at
least 150 ALJ candidate names. Id. ¶¶ 42,
44-49. Plaintiff claims that she would have been considered
for the ALJ position if defendants had used the "normal
practice" of a single list. Id. ¶ 45.
Plaintiff also brings a discrimination claim under a
disparate impact theory, alleging that the alleged deviation
from the normal selection process "had the residual
effect of depriving [plaintiff] and other African American
ALJ applicants of their right to be considered for ALJ
positions." Id. at 8-9.
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal,556 U.S. 662,
678 (2009), quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In Iqbal, the Supreme Court
reiterated the two principles underlying its decision in
Twombly: "First, the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions, " and