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Townsend v. United States

United States District Court, District of Columbia

October 16, 2017

UNITED STATES OF AMERICA, et al., Defendants.



         In this two-year-old case, the plaintiff, Mark William Townsend, moves for leave to amend his Fir s t Amended Complaint (“FAC”), ECF No. 35, after twenty of the plaintiff's twenty-one counts were dismissed for failure to state a claim upon which relief can be granted, see Townsend v. United States, et al., 236 F.Supp.3d 280 (D.D.C. 2017) (“Townsend I”). Specifically, the plaintiff seeks to add a number of allegations to his 101-page FAC, while dropping some claims entirely, in an attempt to “cure” his complaint. See generally Pl.'s Mem. Supp. Mot. Leave to Amend Complaint (“Pl.'s Mem.”), at 5, ECF No. 56. Defendants, the United States Environmental Protection Agency (“EPA”), the United States Department of Justice (“DOJ”), and the United States of America (collectively, the “agency defendants”), along with ten current and former employees of the EPA and DOJ (collectively, the “individual defendants”), [1] oppose the plaintiff's motion to amend his complaint a second time, arguing that any amendment would be futile and would “unduly prejudice defendants.” Agency Defs.' Opp'n Pl.'s Mot. Leave to Amend Complaint (“Agency Opp'n”), at 4-6, ECF No. 59; Individual Defs.' Opp'n Pl.'s Mot. Leave to Amend Complaint (“Indiv. Opp'n”), at 3-5, ECF No. 58. For the most part, the defendants are correct. The changes in the plaintiff's proposed Second Amended Complaint (“SAC”) “cure” a single count in the complaint, such that only Count I, in part, and Count II presents sufficient plausibility to withstand a motion to dismiss. Accordingly, for the reasons set forth below, the plaintiff's motion for leave to amend the first amended complaint is granted in part and denied in part.

         I. BACKGROUND

         The underlying factual allegations at issue in this case are detailed extensively in Townsend I and will not be repeated here. Only those allegations necessary for resolving the plaintiff's instant motion are summarized as part of the analysis of the sufficiency of the challenged claims.

         With respect to the procedural history, the plaintiff initiated this case in October 2015 by filing a sixty-one-page complaint, separated into eighteen counts, alleging a variety of violations of federal law by the individual and agency defendants. See generally Compl., ECF No. 1. The plaintiff's claims all stem from investigations into the plaintiff's role in time-and-attendance fraud at the EPA, his demotion and the removal of his management responsibilities, and the eventual termination of his employment. See generally id.

         On February 11, 2016, after the agency and individual defendants both filed motions to dismiss, see Indiv. Defs.' Mot. Dismiss, ECF No. 33; Agency Defs.' Mot. Dismiss, ECF No. 34, the plaintiff filed a 101-page first amended complaint, adding 40 additional pages alleging violations of federal law separated into 21 different counts, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.; the Privacy Act, 5 U.S.C. § 552a; 42 U.SC. §§ 1983, 1985; and for a number of constitutional violations sounding in tort, see generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See FAC ¶¶ 125-91; id. ¶¶ 124-74, ECF No. 35. Following renewal by both the agency and individual defendants of their motions to dismiss the FAC, see Indiv. Defs.' Mot. to Dismiss FAC, ECF No. 37; Agency Defs.' Mot. to Dismiss FAC, ECF No. 38, Counts II through XXI were dismissed entirely, and the portion of Count I related to the plaintiff's termination was also dismissed, see Townsend I, 236 F.Supp.3d at 326. The only claim in the FAC to survive the defendants' motion to dismiss was the plaintiff's claim in Count I that age was a factor in the plaintiff's alleged demotion, in violation of the ADEA. Id. at 305-06.

         The plaintiff now proposes a third version of his complaint as a proposed Second Amended Complaint (“SAC”), which raises in seventy-one pages largely the same causes of action in reliance on similar factual allegations as asserted in his FAC. [2]


         “Under Fed.R.Civ.P. 15(a)(2), when unable to do so as-of-right, ‘a party may amend its pleading only with the opposing party's written consent or the court's leave.'” Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir. 2016) (quoting Fed.R.Civ.P. 15(a)(2)); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The grant or denial of leave lies in the sound discretion of the district court, Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996), but the Court must follow Rule 15's command that leave should be “freely given when justice so requires, ” id. (quoting Fe d. R. Civ. P . 15(a)); Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012); Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1083 (D.C. Cir. 1998). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182. Thus, leave to amend may ordinarily be denied based only on sufficient reasons, such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the a mendment, [and] futility of amendment. ” Id.; see also Caribbean Broad. Sys., 148 F.3d at 1083. A finding of futility is warranted if a proposed claim would not survive a motion to dismiss. Williams, 819 F.3d at 471 (citing James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)); Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1487 (3d ed. 2004) (noting that an amendment should be denied when it “clearly is frivolous, advanc[es] a claim or defense that is legally insufficient on its face, or . . . fails to include allegations to cure defects in the original pleading” (footnote omitted)).


         Defendants argue that allowing the filing of the plaintiff's SAC would be futile because the plaintiff's proposed amendments to the FAC remain insufficient for the claims to survive yet another round of scrutiny on a motion to dismiss. In addition, the defendants point to the burdens generated by allowing the plaintiff to amend his complaint, including that the defendants would have to file additional motions and answers, even after the parties have initiated discovery and exchanged initial disclosures. Agency Opp'n at 6-7. The Court appreciates the burden on defendants associated with investing considerable time and resources to confront essentially the same complaint in repeated rounds of briefing on motions to dismiss. Indeed, the plaintiff is not entitled to seriatim advisory opinions apprising him of the deficiencies in different versions of his complaint. Nonetheless, leave to amend shall be freely given “when justice so requires, ” Fed.R.Civ.P. 15(a)(2), even though “the grant of leave to amend a complaint might often occasion some degree of delay and additional expense.” Barkley v. U.S. Marshals Serv., 766 F.3d 25, 39 (D.C. Cir. 2014) (acknowledging that the “district court has endured a multitude of motions and amendments to the pleadings in this case over the course of more than a decade” and expressing “sympath[y] [for] the court's understandable interest in efficiently administering the litigation, ” but finding that the court should have granted leave to include new claims by new plaintiffs in the proposed fifth a mended complaint).

         Here, the plaintiff has failed to cure nearly all of his claims. Specifically, for all the constitutional tort claims raised against the individual defendants (Counts XI-XV), as well as for the civil rights claim under § 1983 (Count XVII), the plaintiff has added no allegations of any significance but instead opts to add legal conclusions and policy arguments that are insufficient to “cure” the claims of any deficiency. Thus, permitting amendment to those five counts would Case 1:15-cv-01644-BAH Document 63 Filed 10/16/17 Page 5 of 18 be futile as the counts would not survive a motion to dismiss.[3] The plaintiff also adds no allegations of any import to Count I (disparate treatment on account of age), Count IX (hostile work environment), or Count XVI (Privacy Act). Thus, for the same reasoning articulated in Townsend I, Counts IX and XVI are not cured and are deemed futile, whereas Count I survives only to the extent the plaintiff claims age discrimination in connection with his demotion.[4] The plaintiff's remaining claims against the agency defendants are assessed below.

         A. Age Discrimination Claims: Counts II, V, and VIII

         1. Count II

         Count II alleges a “pattern or practice” age-based disparate treatment claim. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (discussing “pattern or practice” disparate treatment claims); see also Aliotta v. Bair, 614 F.3d 556, 562 (D.C. Cir. 2010) (explaining that “[d]isparate treatment claims brought under the ADEA may involve ‘an isolated incident of discrimination against a single individual, or . . . allegations of a “pattern or practice” of discriminat ion affecting an entire class of individuals.'” (quoting Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987)); Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D .C. Cir. 2008) (applying the Teamsters framework to the ADEA). Count II in the FAC was dismissed because the facts “as alleged in the complaint d[id] not give rise to a plausible inference of a regular practice of age discrimination at the EPA.” Townsend I, 236 F.Supp.3d at 306. The plaintiff's broad-brush, unspecific claim that “myriad other older similarly-situated workers subject to the same supervisory chain of command[ ] were treated in the same or highly similar manner as the plaintiff” was deemed “conclusory” and could not “support an inference that age discrimination was the EPA's ‘standard operating procedure.'” Id. (internal quotations omitted); see also Int'l Bhd. of Teamsters, 431 U.S. at 336 (noting that to make out a prima facie case of a pattern or practice claim, a plaintiff must “prove more than the mere occurrence of isolated or ‘accidental' or sporadic discriminatory acts” and instead establish that “discrimination was the [employer's] standard operating procedure-the regular rather than the unusual practice”).

         In the SAC, the plaintiff seeks to supplement the FAC with more-specific allegations naming three individuals whom the plaintiff alleges were subjected to “disparate treatment, continuing hostile work environments, intolerable working conditions, and prohibited personnel practices considered constructive adverse actions.” SAC ¶ 129. According to the SAC, one of these individuals was told that she “could not apply for branch chief positions for which she was best qualified” because supervisors “wanted to reserve such positions for ‘younger, more diverse' EPA employees.” Id. ¶ 131. This allegation, read in conjunction with the allegations in Count I, namely that the plaintiff was told to “step aside” as branch chief to make room for “younger” employees, is sufficient to “cure” Count II of its deficiencies. The evidence remains thin inasmuch as it is far from clear, even accepting the plaintiff's allegations as true, that discrimination “has been the employer's regular or ‘system wide' pattern or practice, ” i.e., that the “discrimination ‘was the company's standard operating procedure-the regular rather than the unusual practice.'” Aliotta, 614 F.3d at 562 (quoting Int'l Bhd. of Teamsters, 431 U.S. at 335 (alteration adopted)). Nonetheless, the new allegations about older employees are sufficient to nudge the ...

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