United States District Court, District of Columbia
CASSANDRA M. MENOKEN, Plaintiff,
VICTORIA A. LIPNIC, Acting Chair, Equal Employment Opportunity Commission, Defendant.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
a case in which the Equal Employment Opportunity Commission
(EEOC), which is the protector of employee rights to equal
employment opportunity, is itself charged with violating the
legal proscriptions of Title VII. Cassandra M. Menoken, an
African-American female, was employed by the EEOC for
thirty-five years. She complains here of a hostile work
environment in retaliation for protected activity and
interference with her rights under the Rehabilitation Act of
1973 (Rehab Act).
Court has carefully reviewed the record and the parties'
arguments and concludes that the Amended Complaint fails to
survive the Agency's motion to dismiss.
Menoken is an African-American female living in Washington,
D.C. Am. Compl. [Dkt. 7] ¶ 4. For the past 35 years, Ms.
Menoken has been employed as an attorney with the EEOC.
Id. In 1993, Ms. Menoken took the administrative law
judge (ALJ) examination administered by the Office of
Personnel Management (OPM). Menoken v. McGettigan,
273 F.Supp.3d 188, 192 (D.D.C. 2017) (Menoken IV).
OPM is responsible for maintaining a register of applicants
for ALJ positions, which ranks applicants based on their
examination scores. Id.; see also Am.
Compl. ¶ 65. The 1993 ALJ Register was used by OPM until
a new examination was held in 2007. Menoken IV, 273
F.Supp.3d at 192.
1994, Ms. Menoken filed an EEO Complaint against OPM,
alleging that the ALJ examination discriminated against
African-American and female applicants through its design and
implementation, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. Am.
Compl. ¶ 63. In November 2000, an EEOC Administrative
Judge ruled on Ms. Menoken's complaint and found the
“partner benchmark, ” which awarded points to
applicants who were partners at large law firms, had an
adverse impact on the basis of race. Menoken IV, 273
F.Supp.3d at 193. OPM was ordered to cease use of that
benchmark, review and adjust the score of applicants who were
affected by the benchmark, and notify agencies using the 1993
ALJ Register that the benchmark had a discriminatory impact.
See id. at 193-94; see also Am. Compl.
¶¶ 71-73. The Administrative Judge denied
individual relief to Ms. Menoken, finding that she was not
denied an ALJ position as a result of the benchmark. See
Menoken v. Whipple, 605 F.Supp.2d 148, 150 (D.D.C. 2009)
2001, Ms. Menoken filed two appeals with the EEOC, alleging
that OPM had failed to comply with the Administrative
Judge's order and that the Administrative Judge erred in
rejecting her other claims. Am. Compl. ¶¶ 75, 77.
The EEOC rejected those appeals in 2003, id.
¶¶ 81, 84, and Ms. Menoken filed a civil action in
the U.S. District Court for the District of Columbia, which
was dismissed. See Menoken I, 605 F.Supp.2d at 148.
Ms. Menoken's complaints were dismissed administratively
by EEOC in 2003, she “began to sense a subtle shift in
her work environment.” Am. Compl. ¶ 79. She
alleges that her colleagues at EEOC knew that her appeals had
been “fixed” and that she could prove it, so they
began to “close ranks.” Id. ¶ 85.
The fact that she repeatedly criticized “EEOC's
unethical alliance with OPM caused her to be further isolated
in headquarters.” Id. ¶ 86. During this
period, Ms. Menoken filed two retaliation complaints against
OPM, the Social Security Administration (SSA), and the
Department of Health and Human Services (HHS). Id.
¶ 7. Ms. Menoken's retaliation claims were dismissed
after she “abruptly withdrew from the hearing process,
” although she appealed that dismissal to the EEOC.
Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss
Pl.'s Am. Compl. or, in the Alt., for Summ. J. (Mot.)
[Dkt. 8-1] at 4. Both appeals were dismissed by EEOC in
December 2013, see Menoken v. Archuleta, EEOC No.
0120120901, 2013 WL 6623020 (E.E.O.C. Dec. 2, 2013) and
Menoken v. Archuleta, EEOC No. 0120101466, 2013 WL
6623027 (E.E.O.C. Dec. 2, 2013), and Ms. Menoken sought
reconsideration of both appeals, which was denied in October
2015. See Mot. at 7-8. Ms. Menoken filed two
separate lawsuits in the U.S. District Court for the District
of Columbia, seeking de novo review of her
retaliation claims. See Menoken v. Colbert, No.
16-84 (D.D.C. filed Jan. 15, 2016) (Menoken II);
Menoken v. Colbert, No. 16-83 (D.D.C. filed Jan. 15,
2016) (Menoken III); see also Menoken IV,
273 F.Supp.3d at 194-95 (District Court's decision on the
combined motions to dismiss in Civil Case Nos. 16-83 and
16-64); Mot. at 4-5. The District Court dismissed all claims
pertaining to OPM and SSA's alleged retaliation as
precluded under res judicata and issue preclusion
and dismissed Ms. Menoken's claim of retaliation against
HHS, but denied the motion to dismiss with respect to claims
of retaliation against OPM and discrimination against OPM and
HHS. See Menoken IV, 273 F.Supp.3d at 192.
2012, while Ms. Menoken's appeals of the two retaliation
claims were pending administratively, she met with the EEOC
Chief Operating Officer (COO) Claudia A. Withers “to
discuss concerns regarding the process put into place for
EEOC's adjudication of Plaintiff's then pending
appeals.” Am. Compl. ¶ 6. Ms. Menoken
“expressed concerns that her pending appeals were
vulnerable to compromise because their processing was being
controlled by headquarters officials unlikely to be
impartial” due to their involvement in her original
2001 OPM appeals. Id. ¶ 8. Ms. Menoken alleges
that she had filed a motion with the EEOC requesting a
neutral process for her appeals two years before her meeting
with COO Withers but it had not been answered. Id.
¶ 12. Ms. Menoken informed COO Withers that she was
concerned that OPM and EEOC were communicating about her
position at EEOC and that she “had reason to believe
EEOC had agreed to monitor [her] work activities to
accommodate OPM's demand that [she] not be involved in
EEOC matters in which OPM may have an interest.”
Id. ¶ 17. Ms. Menoken was concerned that this
communication between OPM and EEOC had improperly linked her
employment to her protected activity against OPM.
Id. ¶ 18. Although Ms. Menoken was originally
optimistic that her meeting with COO Withers would result in
a more comfortable working environment, she later came to
believe that those in EEOC headquarters were informed that
she was not a valued employee, but instead a legal adversary.
Id. ¶ 24.
September 11, 2012, Ms. Menoken requested a meeting with
EEOC's Disability Program Manager to discuss her need for
a reasonable accommodation. Id. ¶ 92. She
asserted that she was not “currently able to meet the
demands of [her] job” because her health has been
affected by the uncertainty and delay surrounding her pending
EEO appeals. Ex. 1, Mot. (Reasonable Accommodation Request)
[Dkt. 8-3] at 000400. As an accommodation, Ms. Menoken asked for
paid leave for 6 months or until her appeals were resolved,
whichever proved to be longer. Id. Ms. Menoken
submitted a supportive doctor's letter two weeks later.
The doctor diagnosed anxiety and depression since 2005, and
Post Traumatic Stress Disorder (PTSD) “caused by
cumulative trauma suffered as a result of her efforts to deal
with EEOC as both her employer and the adjudicator of claims
she filed against the Office of Personnel Management 18 years
ago.” Ex. 2, Mot. (Dr. Kristin Huffer Letter) [Dkt.
8-4]. Ms. Menoken's superiors were allegedly told by COO
Withers to delay any response to this request until further
notice. Am. Compl. ¶ 94. COO Withers met with Ms.
Menoken in November 2012 to propose a settlement for Ms.
Menoken's pending EEO complaints, which included granting
in part the requested accommodation, id. ¶ 96,
but Ms. Menoken rejected the settlement offer. Id.
in December 2012, Ms. Menoken contacted the EEOC's Office
of Equal Opportunity and later met with an EEO Counselor, as
required by federal regulations. See 29 C.F.R.
§ 1614.105(a)(1). On February 6, 2013, she filed a
formal EEO complaint asserting:
(1) EEOC violated Title VII by subjecting Plaintiff to a 10
year pattern of hostile and adverse treatment rooted in its
antagonism towards Plaintiff's pursuit of discrimination
claims against OPM;
(2) EEOC violated Title VII in and after 2012 by subjecting
Plaintiff to hostile and adverse treatment because she
reported EEOC's retaliatory abuses to the Chair's
(3) EEOC violated the Rehabilitation Act [29 U.S.C. §
701 et seq.] and Title VII in 2012 by interfering
with Plaintiff's efforts to be reasonably accommodated
where such interference was an independent violation of law
partially attributable to her protected activity under Title
(4) EEOC violated the Rehabilitation Act and Title VII by
denying Plaintiff a reasonable accommodation, for no good
reason, where the denial was partially rooted in her
protected activity under Title VII.
Am. Compl. ¶ 27. The specific acts that Ms. Menoken
alleges created a hostile and adverse work environment
In or around 2002, while Plaintiff's OPM claims were
pending adjudication, EEOC and OPM agreed that EEOC
would accommodate OPM's demand that Plaintiff's work
activities be monitored, creating an ongoing fear in
Plaintiff that she was vulnerable to being “set
up.” In 2006, while Plaintiff's OPM claims were
pending adjudication, EEOC joined forces with OPM to
coerce Plaintiff into “authorizing” an FBI
investigation into her “suitability” for federal
employment on the asserted ground that neither agency had a
record of a background investigation ever being done in
connection with Plaintiff's federal employment. The
asserted ground was later shown to be false; it was
a pretext intended to allow OPM to abusively intrude into
Plaintiff's personal life in ways it had been prohibited
from doing in the discovery process.
In 2007, while Plaintiff's OPM claims were pending
adjudication, EEOC joined forces with OPM to attempt to
induce Plaintiff to retire under the belief that her [Office
of Federal Operations] OFO position was slated for
elimination. It was later revealed that Plaintiff's
position was not slated for elimination. EEOC's
attempt to induce Plaintiff to retire was a ploy to limit the
monetary impact of OPM's potential exposure.
Id. ¶¶ 89-91 (emphasis in original). This
complaint was docketed as EEOC No. 2013-0010 by the Office of
Equal Opportunity, which began an investigation. However,
that Office failed to complete its investigation into Ms.
Menoken's complaint within 180 days, see 29
C.F.R. § 1614.108(e), (f), and Ms. Menoken
“invoked her right to proceed to the hearing stage of
the process when the investigation . . . stalled.” Am.
Compl. ¶¶ 37-38. The Amended Complaint before the
Court does not indicate whether a hearing was held.
early 2013, Ms. Menoken voluntarily went “on extended
leave, ” using “a combination of ‘paid'
leave and leave without pay.” Id. ¶ 100.
In approximately February 2013, Ms. Menoken's supervisor,
Carlton Hadden, stopped approving or denying her requests for
leave. Id. ¶ 101. In March 2013, Mr. Hadden
stopped certifying Ms. Menoken's time to payroll, which
prevented her from receiving compensation for paid leave.
Id. ¶ 103. On April 5, 2013, Ms. Menoken was
notified that the EEOC had determined not to grant the
accommodation she had requested. See Ex. 3, Mot.
(Walton Letter) [Dkt. 8-5]. It explained, in part, that Ms.
Menoken's requested accommodation was not reasonable and,
in part, that such an accommodation would unduly impact the
Agency as it was facing a sequester and potentially imminent
employee layoffs. Id. In October 2013, Ms. Menoken
was notified that she had been “unenrolled” from
her health insurance benefits. Am. Compl. ¶ 110. She
informed her supervisors and, although she never received a
direct response, she was notified about a week later that her
insurance was reinstated. Id. ¶¶ 112-14.
Following the closure of the government in the budget
stalemate of Fiscal Year 2013, Ms. Menoken did not receive
compensation for the lapsed period between appropriations
because her time was identified as leave without pay, rather
than paid leave. Ms. Menoken attributes this to a direct
order from Mr. Hadden. Id. ¶ 117.
calendar year 2014, Ms. Menoken began to consider retirement;
in the process, she learned that she risked losing her health
insurance if she retired. Id. ¶¶ 119, 121.
As a result, she chose not to retire and returned to work in
June 2014, approximately 17 months after she had first taken
leave. Id. ¶ 122. EEOC had not filled her
position while Ms. Menoken took extended paid and unpaid
Menoken filed another EEO complaint on September 26, 2014,
“asserting violations of the Rehabilitation Act after
learning that EEOC had disregarded her right to medical
privacy as well as her right not to be subjected to
unwarranted medical inquiries.” Id. ¶ 42.
This administrative complaint was docketed as EEOC No.
2014-0039. Specifically, it alleged that “EEOC arranged
for a stranger, not employed by the government, to repeatedly
access and review medical information in Plaintiff's
[Office of Workers' Compensation Programs (OWCP)]
file.” Id. ¶ 43. The two new
administrative complaints, EEOC Nos. 2013-0010 and 2014-0039,
were consolidated in December 2014. Id. ¶ 48.
The Amended Complaint alleges that the Administrative Judge
denied both complaints “in summary fashion, ” but