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Thompson v. Sessions

United States District Court, District of Columbia

September 30, 2017

DAVID THOMPSON, Plaintiff,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff David Thompson, proceeding pro se, brings this action against his former employer, the U.S. Department of Justice, for alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a et seq., the Due Process Clause of the Fifth Amendment, and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Thompson claims that the Department unlawfully discriminated against him on the basis of his sex and age by, among other things, investigating him, reprimanding him, and, ultimately, constructively discharging him for what he characterizes as his use of profanity in the workplace. See Dkt. 7 at 1, 3-5, 7 (Am. Compl. ¶¶ 1, 7-12, 16). He also claims that the Department violated his rights under the Due Process Clause of the Fifth Amendment by conducting a “biased and unfair” investigation and grievance process. Id. at 7 (Am. Compl. ¶ 18). Finally, he claims that the Department maintains a policy and practice of not responding to FOIA requests in a timely manner. Id. at 7 (Am. Compl. ¶ 18).

         The parties' cross-motions for summary judgment are now before the Court. Dkt. 18; Dkt. 19; Dkt. 20. The Department, for its part, contends that Thompson was disciplined for a legitimate, non-discriminatory reason-his abusive and inappropriate treatment of his colleagues-and that there is no evidence from which a reasonable jury could find that this reason was pretextual. Thompson disagrees and argues that the undisputed evidence shows that the Department did not discipline a similarly situated younger female employee who also used profane language in the workplace. The parties also dispute whether the Due Process Clause provides a remedy for any alleged bias or unfairness in the Department's investigation of Thompson's conduct or in its adjudication of his grievance. Finally, the parties disagree about the substance and merit of Thompson's FOIA claim.

         As explained below, the Court first concludes that Thompson has failed to identify evidence from which a reasonable jury could find in his favor on his Title VII and ADEA claims. Accordingly, the Court will grant the Department's motion for summary judgment on these claims. Second, the Court concludes that Thompson lacks standing to pursue his due process claim and will therefore dismiss that claim. Third, the Court concludes that the existing record is insufficient to permit the Court to determine whether Thompson has standing to pursue his FOIA “policy and practice” claim and will allow Thompson to submit further evidence on this point. The Court will, therefore, deny the Department's motion for summary judgment on this claim and will deny Thompson's motion for summary judgment in full.

         I. BACKGROUND

         Because this decision ultimately concludes that the Department is entitled to summary judgment on Thompson's Title VII and ADEA claims, the Court must review the facts relevant to those claims in the light most favorable to Thompson. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

         At the time of the relevant events, Thompson was sixty years old and worked as a senior trial lawyer at the Department of Justice in the Environmental Defense Section (“EDS”) of the Environment and Natural Resources Division (“ENRD”). Dkt. 20-2 at 3 (Thompson Aff. 2) Thompson joined EDS in 1989 and worked in that office until his retirement in 2008. Dkt. 19-2 at 63 (Grishaw Dep. 15:3); Dkt. 20-2 at 3, 6 (Thompson Aff. 2, 5); Dkt. 20-27 at 2. During his tenure with the Department, Thompson received numerous merit-based “special achievement awards, ” Dkt. 20-2 at 8 (Thompson Aff. 7), and “he consistently received performance appraisals at the highest available rating, ” Dkt. 20 at 4. For Thompson's last five years at the Department, he “exclusively or nearly exclusively” represented the United States in enforcement actions brought under CERCLA. Dkt. 20-2 at 4 (Thompson Aff. 3).

         A. April 2: Email Incident

         In the fall of 2007, Thompson's first-level supervisor, EDS Assistant Chief Mary Edgar, asked him to take over as “lead counsel” in the “Raytheon case, ” which was set to go to trial in April 2008. Dkt. 20-4 at 2-3 (Thompson Grievance); Dkt. 20-2 at 9-10 (Thompson Aff. 8-9). Thompson asserts that, when he took over the team, the “case was in disarray, ” requiring “50, 60, and 70 hour [work-]weeks.” Dkt. 20-4 at 2. He further asserts that, while working on this case, he “was necessarily aggressive not only with the other side but also with [the Department's own] lawyers.” Id. As the trial date approached, Thompson frequently worked from home “to avoid voicemail, [e]mail, [and] people coming into [his] office” while he was preparing. Dkt. 20-2 at 9 (Thompson Aff. 8). Moreover, because he did not “bother to get a Blackberry” or another Department-issued device capable of connecting to the Department's electronic networks, Thompson did not “have access to office [e]mails or . . . files remotely from [his] home, ” Dkt. 20-3 at 3-4 (Thompson Dep. 24:5-7, 25:1-2).

         On April 2, 2008, Thompson was preparing for trial at home when he realized that he needed to access an email from an expert witness. Dkt. 20-3 at 36 (Thompson Dep. 55:10-25). He had been up all night working on the case and was “dog-tired.” Id. (Thompson Dep. 55:14). Rather than “driving . . . [forty-five] minutes to an hour into work . . . to download one [e]mail, ” Thompson left a voicemail for Mary Whittle, another attorney at EDS and his “number two chair on the [Raytheon] case, ” asking her to retrieve the email from his office computer. Dkt. 20-2 at 10 (Thompson Aff. 9). Around noon, Thompson reached Whittle by telephone and, again, asked her to go to his office to access the email for him. Dkt. 20-3 at 37 (Thompson Dep. 56:3-7). When Whittle repeatedly refused to do so, “[Thompson] said, ‘F*** you, ' and [he] hung up the phone.” Id. (Thompson Dep. 56:17-19); see also Dkt. 20-2 at 11 (Thompson Aff. 10); Dkt. 20-19 at 3 (“Three times I asked her to perform a simple trial preparation task, and three times she refused without explanation. THAT is when I finally lost my temper.”)

         Immediately after her call with Thompson, Whittle sent the following email to Edgar and Cherie Rogers, another EDS Assistant Chief:

Dave just yelled at me for not logging onto his computer and pulling the emails from [the expert witness]. He screamed “F*** you!” at the top of his lungs and hung up.
I want to be clear. If he does this again, I am not going to trial with him. If we are in trial, I am coming home. He has now threatened to hit me, said all kinds of inappropriate sexual things in front of me, screamed at me, blamed me, cursed at me, etc. I am a grown woman and a good lawyer, and this abuse is unacceptable.

         Dkt. 20-5 at 2. Rogers forwarded Whittle's email to Letitia Grishaw, the EDS Section Chief and Thompson's second-line supervisor, and, the next morning, Edgar and Grishaw met with Whittle to discuss the incident. Dkt. 20-5 at 3; Dkt. 20-6 at 2.

         During that April 3 meeting, Whittle stated that, over the previous few months, Thompson “repeatedly yelled at her angrily” using “obscenities and curses.” Dkt. 20-6 at 2. She further explained that these incidents occurred “when the two of them were discussing legal or strategic aspects of the case and she ventured to disagree with him, ” id., and when she refused “to perform tasks that [Thompson] should have done himself or [should have] requested [that] an LSA or paralegal” perform. Id. at 3. “Feeling intimidated by the repeated outbursts, [Whittle] found herself avoiding disagreements with [Thompson], and then [having Thompson] yell[] at her for not speaking up when he was wrong.” Id. Whittle “recited another instance in which [Thompson] was yelling at her, and she felt her heart beating, and felt short of breath, and when she took a deep breath, [Thompson] yelled at her for ‘sighing' about what he [had] said, apparently taking it as an indication of her disrespect for him.” Id.

         In addition to the April 2 incident, Whittle described a number of instances in which she believed Thompson had behaved “inappropriate[ly].” Id. For example, she told Edgar and Grishaw that Thompson “frequently called her a ‘b****;'” that he described another female colleague as able to, in his words, “ruin a good wet dream;” that he “told her that he was suffering from a ‘bleeding d***'” (he later explained that she had repeatedly asked him about a personal medical condition); that he had, in a “jok[ing]” manner, “leaned in toward her” after she had “made a somewhat flip remark” and “punched one fist into the palm of his other hand” (he later described this as a reference to Jackie Gleason); and that, after a male “member of the trial team” asked Thompson “if there was anything else he could do to help him, ” Thompson responded “by saying, ‘Yeah, wipe my a**.'” Id. at 3-4. Whittle told her supervisors that “she had never felt that [Thompson] was making any sexual overture[s] to her, ” but that “she had grown tired of the locker-room conversation, ” and she expressed her fear that there would be “further scenes” if she went “on the road” to trial with Thompson. Id.

         Later that same day, Grishaw asked Thompson to come to her office for a meeting. Dkt. 20-2 at 12 (Thompson Aff. 11). Although Thompson “had no prior notice of what the meeting was going to be about, ” he “assumed” it could concern his call with “Whittle . . . the previous day.” Id. at 12-13 (Thompson Aff. 11-12). When he arrived, Grishaw, Edgar, and ENRD Executive Officer Robert Bruffy described the “charges” Whittle had made and asked him to respond. Id. Although Thompson disputes some of Whittle's charges, id., he (1) “acknowledged [at the meeting] that he had yelled at [Whittle] on the phone, ” Dkt. 20-6 at 4; (2) admitted that he had “told her to ‘f*** off'” in response to what he considered “her insubordination in refusing to log onto his computer and pull off the emails in question, ” id.; and (3) confirmed that he had made many of the other statements Whittle had attributed to him.[1] Thompson further acknowledged that “he yell[ed] at people when, in his view, they deserve[d] it, ” and he explained that he was “too old to change.” Id. He explained that he made “crude and blunt” comments “‘all the time'” and that he “d[id not] see anything wrong with” that, nor did he see anything wrong in “asking [Whittle] to see that clerical tasks were carried out for him.” Id.; see also Dkt. 20-3 at 23 (Thompson Dep. 165:14-166:4) (explaining that he did not think his statements were “inappropriate at all” and noting that he did not find it “inappropriate” that he failed to apologize to Whittle). After the meeting, Bruffy contacted EDS's sexual harassment coordinator, Andrea Berlowe and requested that she “conduct an internal investigation into the allegations” to determine if Thompson's behavior had created a “potential hostile work environment” or if it raised any other “potential sexual harassment issues.” Dkt. 20-7 at 2 (Bruffy Decl. ¶ 10); see also Dkt. 20-26 at 3 (Edgar Decl. ¶ 7) (“[T]he [Department] initiated an investigation to ensure that, if found appropriate, it could take prompt corrective action with regard to [Thompson's] comments and conduct.”).

         B. April 4-September 3: Thompson on Sick Leave

         Several hours after the April 3 meetings, Thompson sent Grishaw and Edgar an email resigning his position. Dkt. 20-8 at 2. He explained that he was “under great stress because of upcoming back-to-back-to-back trials, ” which, in conjunction with his “heart condition” and recent hospitalizations, had “become far too much over the past few months.” Id. Thompson also noted that he felt “outrage[d]” and “betray[ed]” by Whittle's “claims against [him], ” and he expressed “shock” that her charges were “being given the slightest attention, ” especially because, he asserted, Whittle had “publicly referred to a co-worker . . . with a name much more vile than [he] ha[d] ever used.” Id. He concluded by noting that, “[i]n light” of his age, health, and stress concerns, he “th[ought] it best” to “resign, eff[ec]tive immediately.” Id. Upon receiving Thompson's email, Grishaw emailed and called Thompson to notify him that she was “not accepting his resignation on the spot.” Dkt. 20-9 at 2.

         Rather than formalizing his resignation, Thompson informed his supervisors that he planned to take “sick leave for several weeks.” Dkt. 20-7 at 3 (Bruffy Decl. ¶ 14); see also Dkt. 20-2 at 13 (Thompson Aff. 12). Thompson emailed Edgar, Grishaw, and Rogers to let them know that he would submit a note from his doctor to justify his sick leave and that it was his “present plan” to “[r]etire at some point in May.” Dkt. 20-10 at 2. On April 11, Thompson submitted a note from his doctor stating that, “due to stress, ” he was “restricted from work . . .for a period of not less than [eight] weeks, ” Dkt. 20-11 at 2, and, on April 28, he submitted a second note that “restricted” him “from work until further notice, ” id. at 3. Over the next several months, the Department attempted to confirm Thompson's retirement date, but Thompson repeatedly indicated that he had not yet “determined exactly when” he would retire. Dkt. 19-1 at 118; see also, e.g., id. at 111, 116-19, 123, 125, 129.

         While Thompson was out on leave, three attorneys were scheduled to begin work at EDS, and, because the EDS was “tight on office space, ” Grishaw was having difficulty locating “places to put them.” Dkt. 20-12 at 7 (Grishaw Dep. 136:12-14). “Under the impression that [Thompson] w[as] retiring, ” she called him on June 30 to ask if EDS “could use [his] office” to house one of the new recruits. Id. (Grishaw Dep. 136:15-18). Thompson asserts that Grishaw “threatened . . . to evict [him] from [his] office, ” Dkt. 20-4 at 4, but, as Grishaw testified, because Thompson “objected” to her plan, “it didn't happen, ” Dkt. 20-12 at 8 (Grishaw Dep. 137:7-9). During that same telephone conversation, Grishaw “encouraged [Thompson] to retire, ” but he “declined to commit to a retirement date.” Dkt. 20-4 at 4. Later that same day, under the impression that Thompson was “plan[ning] on allowing EDS to use [his] window[ed] office, ” Rogers emailed Thompson to see if he was willing to “release [his] office” immediately so that a new attorney could be housed there. Dkt. 20-13 at 2. Rogers noted in her email, however, that it was “totally [Thompson's] decision” and that he could “decide . . . to leave things as is.” Id. Thompson, in turn, responded that he had not yet “decided what [he was] going to do, ” explained that he would “prefer to clean [his] office [him]self, ” and asked Rogers to “hold off on doing anything.” Id.

         At around the same time, Bruffy grew concerned that there was a “fairly good” “possibility of a hiring freeze” at the Department. Dkt. 20-15 at 4 (Bruffy Dep. 55:16-18). He communicated that concern to Grishaw, informing her that it “would behoove [her] to make sure that any existing vacancies . . . were filled” before a freeze went into effect. Dkt. 20-14 at 5. On July 15, Grishaw called Thompson to inform him of the impending freeze and explained that she could not “hire for [his] position until [he] told [her] definitely” that he was retiring. Dkt. 19-2 at 318. She noted that she was “not trying to pressure [him] to make a decision one way or another, ” but that she understood it was his “plan” to retire and “formaliz[ing] that decision” for “a date in the future” would “allow [her]” to “backfill the position.” Id. Two days later, Thompson sent an email to Edgar and Rogers noting that he “ha[d] received several calls from [Grishaw] about his retirement, ” but, because he was handling a number of “family [and] health problems, ” “retirement [wa]s not exactly the number one target on [his] radar.” Dkt. 19-2 at 319. He also stated that “[he] [was] on extended sick leave for a reason.” Id.

         C. Spring-Summer: The Department's Investigation

         While this back-and-forth was occurring, the investigation into the April 2 incident proceeded as well. Dkt. 20-7 at 3 (Bruffy Decl. ¶ 15). On April 22, Bruffy contacted Andrea Berlowe, an ENRD investigator, to inform her that the investigation “should start . . ., if only to keep the pressure on for [Thompson] to leave.” Dkt. 19-2 at 301. Approximately a month later, Thompson “received written notice of the charges against [him].” Dkt. 20-4 at 4. Two days after that, Thompson emailed a lengthy statement to the investigators in which he “freely admit[ted] that [he] use[d] foul language” and acknowledged that he “lost [his] temper” with Whittle on April 2 when, “three times[, ] she refused” to “perform a simple trial preparation task . . . without explanation.” Dkt. 20-19 at 2-3. Thompson also noted, however, that he found it “silly” that Whittle would “portray herself as some sort of delicate innocent” when she had “publicly refer[red]” to a colleague as a “‘c***.'” Id. at 2. And, he suggested that, if “ENRD want[ed] to ‘investigate' people for foul language, ' it should “do so on a non-discriminatory basis and investigate females as well as males.” Id. at 2. Thompson concluded by explaining that he was “upset that [Whittle's] charge [wa]s being given even the slightest attention, ” that he was “bitter” about the investigation, and that he was “happy about retiring.” Id. at 3.

         Thompson returned to these themes in an interview Berlowe conducted on May 22. He explained that he considered himself a “loud, profane, aggressive, and enthusiastic” person, and, although he admitted to calling Whittle a “b**** . . . once in a while” or “two or three times, ” he claimed to have done so “in a joking way.” Dkt. 20-20 at 3, 5. He also noted that “everyone who successfully tries cases is profane, ” and, to illustrate the point, he referenced Whittle's “use[] [of] the C word to refer to [a colleague].” Id. at 3, 4. Thompson explained that “he did not witness” Whittle use the word, but that she told him that she had “gone ‘down the hall calling [the other EDS lawyer] a “c” word' and someone had told . . . Whittle that she cannot say that.” Id. at 5. Thompson also acknowledged that he had said that this same EDS lawyer “could f*** up a wet dream, ” and he acknowledged that he had made a “comment about a ‘bleeding d***, '” but explained that he did so only after Whittle pressed him on why he needed to be out of the office for an entire day. Id. And, although explaining that he was joking, he acknowledged that he complimented another lawyer by saying, “‘You've done all I asked you to do except wipe my a**.'” Id. at 5-6. Finally, he explained that he was “upset by the situation in which” he found himself because he had not threatened violence against anyone, had not called anyone a name, and had not acted dishonestly or unethically; rather, he felt that, after his meeting with his EDS supervisors, “the world ha[d] passed [him] by.” Id. at 6.

         The investigation into Thompson's actions was completed by late August or early September of 2008. Dkt. 20-7 at 3 (Bruffy Decl. ¶ 19). Berlowe concluded that “Thompson had not engaged in sexual harassment, but that he had, over a period of time, yelled at, and made numerous condescending, rude[, ] and inappropriate comments to other [EDS] attorneys.” Id. at 3-4 (Bruffy Decl. ¶ 19).

         D. September 4-15: Thompson's Brief Return to EDS and Subsequent Retirement

         In late August, Thompson announced his intention to return to work. Dkt. 20-14 at 6 (Grishaw Interrog. ¶ 17). In response, Grishaw concluded that she needed to issue Thompson a reprimand “regarding his abusive behavior during his prior tenure in the office.” Id. Grishaw noted that she “would not have needed to reprimand him regarding his behavior” if he had retired, but because he opted to “return[] to the office environment, ” she determined that she “needed to take that step so as to attempt to protect the other members of [EDS] from additional abusive interactions.” Id.

         To that end, Grishaw issued Thompson a formal letter of reprimand on September 8, 2008, Dkt. 20-25, four days after he returned to work, Dkt. 20-4 at 4. In her letter, Grishaw recounted Whittle's complaints and Thompson's responses, as described above. Dkt. 20-25. The letter went on to describe the findings of the investigation and Grishaw's conclusions. Because those statements constitute the clearest articulation of the Department's proffered non-discriminatory reason for taking disciplinary action against Thompson, the Court will quote that portion of the letter at length:

[In the course of the investigation, ] [e]leven individuals (including you) were interviewed. The investigation revealed that you have been disrespectful and/or have used inappropriate language with a number of attorneys and staff at the Environmental Defense Section. You have a continuing pattern of loud, profane and anger-laden tirades at colleagues, followed by a series of apologies. During you interview with the investigator, you admitted to yelling at co-workers and making comments of a sexual nature. You stated to the investigator, “I am loud, profane, aggressive, and enthusiastic (until now).” You told the investigator that everyone who successfully tries cases is profane, that you do not have time to suck up to people and be nice, and that you raise your voice in anger at times.
When you were asked to address assertions regarding your behavior, your use of crude and sexual remarks, you attempted to justify your actions by stating that your remarks were taken out of context, or that they were in the nature of a joke, or that the remarks were necessary and appropriate based on the senior position you hold in the office. . . . You went on to say that you were frustrated because you had been “interrogated” by Mary Edgar, Robert Bruffy, and me - a “kangaroo court” - regarding the allegations of . . . Whittle, a “whining novice.”
I am deeply troubled that you do not acknowledge or understand that your behavior was unacceptable and disrespectful. Furthermore, while you seem to have some remorse for some of your outbursts, you have not acted on that remorse to change your behavior pattern. You evidence a complete lack of concern for the individuals on the receiving end of your outbursts and inappropriate comments. Moreover, your treatment of your colleagues is counterproductive, and it does not foster cooperation. As a result, I am issuing this ...

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