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Menoken v. Lipnic

United States District Court, District of Columbia

March 6, 2018

CASSANDRA M. MENOKEN, Plaintiff,
v.
VICTORIA A. LIPNIC, Acting Chair, Equal Employment Opportunity Commission, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         This is 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).

         The 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.

         I. BACKGROUND

         Ms. 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.

         In 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) (Menoken I).

         In 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.

         After 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.

         In 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.

         On 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.[1] 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. ¶ 97.

         Thereafter, 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 Office;
(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 VII;
(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 include:

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.

         In 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.

         In 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 leave.

         Ms. 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 ...


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