United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
Richardson, a former employee of the Board of Governors of
the Federal Reserve System, sues eleven current and former
Board employees pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), under which plaintiffs may allege constitutional
torts directly against individual federal employees. Mr.
Richardson claims that Defendants violated his constitutional
rights by taking various improper actions related to his job,
personnel records, and complaints of discrimination, leading
to his termination and undermining his subsequent attempts to
challenge that termination. Defendants move to dismiss on the
grounds that the claims have already been litigated or are
barred by Defendants' qualified immunity, among other
arguments. Because Counts One through Eight in Mr.
Richardson's Amended Complaint have been litigated fully
in a related case, they are barred by the principles of
res judicata and collateral estoppel and will be
dismissed. Counts Nine and Ten will be dismissed because they
are untimely. Count Eleven will be dismissed for failure to
state a claim upon which relief may be granted. As a result,
the Amended Complaint will be dismissed in its entirety.
Amended Complaint in this Action
the facts of this case have been summarized repeatedly in
this and related actions, see Richardson v. Yellen,
167 F.Supp.3d 105 (D.D.C. 2016) (Richardson I);
Richardson v. Board of Govs. of the Fed. Res. Sys.,
248 F.Supp.3d 91 (D.D.C. 2017) (Richardson II), the
Court provides only a brief summary.
Richardson worked as a conditional employee for the Board of
Governors of the Federal Reserve System (the Board) in its
Law Enforcement Unit (LEU) from June 8, 2009 to June 7, 2010,
when his employment was terminated. Am. Compl. for Damages
(Am. Compl.) [Dkt. 21] ¶¶ 3, 21-22. He is an
African-American male and a former military police officer
who served in Iraq in 2003. Mr. Richardson previously alleged
that his termination was illegal, stemming from race-based
and disability discrimination, see generally Richardson
I, 167 F.Supp.3d 105, but those allegations are not the
basis of the instant Complaint. Here Mr. Richardson alleges
numerous violations of his constitutional rights by some or
all of the eleven Defendants. As listed in the Complaint,
Defendants are Billy Sauls, retired LEU chief; Albert
Pleasant, senior special agent within the Board's Office
of the Inspector General (OIG); Larence Dublin, LEU
lieutenant; Marvin Jones, LEU deputy chief of operations;
Kevin May, Human Resources specialist; Robert Bakale, LEU
sergeant and Mr. Richardson's direct supervisor; Tyson
Coble, LEU administrative lieutenant; Charles O'Malley,
retired LEU assistant chief; Margaret Shanks, Board
ombudsman; Keisha Hargo, senior employee relations specialist
in HR; and Andre Smith, an Equal Employment Opportunity (EEO)
specialist for the Board. See Am. Compl.
Richardson brings eleven counts by which he alleges
constitutional torts stemming from discriminatory harassment,
improper tampering with documents and personnel records,
lying about his termination, and undermining his
administrative complaints, among other trespasses. Count One
charges that Defendants Jones, Coble, Dublin, May, Sauls,
Bakale, and O'Malley violated Mr. Richardson's Fourth
Amendment rights when they allegedly “conspired with
one another to remove protected medical records from
Plaintiff's personnel file that . . . should not have
been in the defendants['] possession.” Id.
Two and Five allege violations of Mr. Richardson's rights
under the Fourth and Fifth Amendments, respectively, based on
the claim that Messrs. Sauls and Pleasant illegally obtained
Mr. Richardson's cell phone records “knowing the
information used to obtain those records to be falsified and
[a] misrepresentation of facts, ” and that they
“willfully released” his phone records to other
people. Id. ¶¶ 83-84, 92, 178, 214-15.
Three and Six allege that Mr. May violated the Fourth and
Fifth Amendments, respectively, when he “searched
Plaintiff's personnel file[, ] retrieving only documents
that would be most character damaging to Plaintiff, ”
and “searched through Plaintiff's ongoing EEO
activity file, removing specific documents, including his own
EEO affidavit and converted those documents to his personal
use” by improperly mailing them to JaCina Stanton of
the Maryland Attorney Grievance Commission. Id.
¶¶ 188-89, 229-30.
Four alleges that Ms. Shanks and Messrs. Sauls, Bakale,
Coble, Jones, Dublin, and O'Malley violated Mr.
Richardson's Fifth Amendment rights and are liable for
wrongful termination because they “intentionally and
callously remov[ed] 22 medical documents” from Mr.
Richardson's personnel file; the absence of these medical
records allegedly deprived Mr. Richardson of the ability to
document his medical “call-offs” when requested;
and his termination resulted. Id. at 28-30.
Seven alleges that Messrs. Bakale, Dublin, Jones, May, Sauls,
Coble, and O'Malley violated Mr. Richardson's First
Amendment rights by retaliating against him due to his
protected speech and, specifically, that Mr. Bakale
“harass[ed]” Mr. Richardson when confronted about
the alleged removal of medical documents and asked Mr.
Richardson why he planned to “tak[e] the illegal
removal of medical documents public and to the U.S. Dept. of
Veterans Affairs.” Id. ¶¶ 238-240.
Eight alleges that Messrs. Sauls and Pleasant violated Mr.
Richardson's First Amendment rights by retaliating
against him for engaging in protected speech following his
termination: Mr. Richardson claims that Messrs. Sauls and
Pleasant “attempted to establish a falsified
investigation against Plaintiff and further attempt[ed] [to]
have Plaintiff wrongfully prosecuted by 4 separate law
enforcement agencies, ” in retaliation for Mr.
Richardson's “public disclosures” concerning
the removal of his medical documents. Id.
¶¶ 247-49. Also in Count Eight, Mr. Pleasant is
alleged to have investigated another employee for wrongful
behavior, who had not engaged in protected activities and who
received a lesser discipline than Mr. Richardson.
Id. ¶¶ 250-52.
Nine alleges that Mses. Hargo and Shanks and Messrs. Jones,
Sauls, O'Malley, Bakale, Dublin, Coble, and May violated
Mr. Richardson's rights under the First and Fifth
Amendments by conspiring to retaliate against him and to deny
his appeal of his termination. The crux of count's
allegations is that Ms. Shanks's purported reason for
upholding Mr. Richardson's termination-that he had
accumulated too many “tardies”-was pretextual and
a “malicious fabrication of evidence.”
Id. ¶¶ 259-60. Mr. Richardson contends
that Mr. May had informed him that he was being terminated
for failing to provide supporting documentation for medical
call-offs. Id. ¶ 262.
Count Ten, Mr. Richardson complains of unequal treatment in
violation of his Fifth Amendment due process rights. See
Id. ¶ 280. Count Ten alleges that Mses. Shanks and
Hargo and Messrs. O'Malley, Jones, Sauls, Bakale, Dublin,
Coble, and May failed to consider prior misconduct of two
white employees, Rocco Christoff and Darren Harris, when
terminating Mr. Richardson for comparable reasons in June
2010. Id. ¶¶ 273-78.
Count Eleven charges Mr. Smith, a senior EEO specialist with
the Board, with violations of Mr. Richardson's rights
under the First and Fifth Amendments for allegedly failing to
provide EEO counseling when Mr. Richardson submitted an
administrative complaint of discrimination in 2016, several
years after his discharge. Id. ¶¶ 284-90.
Specifically, Mr. Smith allegedly deprived Mr. Richardson of
his “right to free speech” by denying him
adequate investigation of his EEO claims and related
counseling. Id. ¶¶ 286-87. Mr. Richardson
also contends that Mr. Smith violated the Fifth Amendment by
denying him the opportunity “to be heard and to bring
his claims before an administrative judge or this
Court.” Id. ¶ 288. He asserts that Mr.
Smith improperly forwarded new EEO charges filed by Mr.
Richardson to Board senior counsel Joshua Chadwick and that
Messrs. Smith and Chadwick together “prevented
Plaintiff's newly filed claims from moving forward”
in the EEO process. Id. ¶ 156. Mr. Richardson
contends that Mr. Chadwick presented a
“fabricated” EEO form to Mr. Richardson's EEO
investigator, thus undermining his claim. Id. ¶
162. He alleges that the failure to “conduct EEO
counseling . . . and a limited inquiry into Plaintiff's
new claims of discrimination” violated his
constitutional rights to due process and free speech.
Id. ¶ 157. Related to this claim, Defendants
filed with the Court an exhibit, of which they ask the Court
to take judicial notice, which is a letter dated February 2,
2017, in which Mr. Smith informed Mr. Richardson that his
complaint was dismissed in accord with EEO regulations.
See Mot. to Dismiss, Ex. 1, 2/2/2017 Letter to Mr.
Richardson (2017 Letter) [Dkt. 34-1] (citing 29 C.F.R. §
1614.107(a)(1), (3)); see also Am. Compl.
¶¶ 156-58, 284-89 (referencing the 2017 Letter).
Board moved to dismiss. See Mot. to Dismiss (Mot.)
[Dkt. 34]. Mr. Richardson opposed. Mem. in Opp'n to Mot.
to Dismiss (Opp'n) [Dkt. 37]. Defendants replied. Reply
to Opp'n to Mot. to Dismiss (Reply) [Dkt. 39]. The motion
is ripe for review.
Richardson sued the Board and Messrs. May, Sauls, Jones,
Coble, Bakale, Dublin, and Pleasant in a previous, related
case. See Richardson I, 167 F.Supp.3d at 109-12.
Richardson I concerned the Board's alleged
failures to provide reasonable accommodation for Mr.
Richardson's “severe persistent
asthma/allergies” and subsequent harassment by Mr.
Richardson's superiors and co-workers. See Id.
at 108-09. Among alleged constitutional violations, Mr.
Richardson alleged that Mr. Pleasant “willingly and
intentionally defamed [Mr. Richardson's] character to
gain access to [his] cell phone records, by claiming that
[Mr. Richardson] was involved in a spoofing scandal against
the Board”; and “access[ed] [Mr.
Richardson's] cell phone records with malicious
intent” “in violation of the Fourth
Amendment.” First Am. Compl., Richardson I
(Richardson I Am. Compl.) [No. 14-cv-1673 Dkt. 8]
¶¶ 230-31. Mr. Richardson also alleged that Mr. May
knowingly removed from Mr. Richardson's personnel file a
separation letter, the denial of an appeal, and an
investigative affidavit, id. ¶¶ 235-36;
and that Messrs. Bakale and Coble retaliated against Mr.
Richardson by removing medical documents from his file so
that he could be terminated before his probationary period
was over. Id. ¶ 243. Further, he alleged that
all seven Richardson I defendants “knowingly,
willingly, and with malicious disregard for established laws,
falsified testimony under penalty of perjury, while knowingly
defaming [Mr. Richardson's] character, with intentional
malice, to support their cause that resulted in [his]
termination.” Id. ¶ 238. Mr. Richardson
also alleged that after he disclosed certain protected
activity to Messrs. Dublin, Jones, Sauls, and May, he was
given undesirable work assignments, including being
“forced to work 3 different shifts weekly” until
he was terminated. Id. ¶ 243. The
Richardson I complaint included allegations of
denial of promotion, denial of accommodation, and derogatory
name-calling. Id. ¶ 253.
Board moved to dismiss the Richardson I complaint as
to all claims except those brought under the Rehabilitation
Act of 1973, 29 U.S.C. § 791. Among the claims dismissed
were those alleged by Mr. Richardson as constitutional torts
against individual defendants, which the Court evaluated as
Bivens claims and determined were untimely. See
Richardson I, 167 F.Supp.3d at 115-16.
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) challenges the adequacy of a
complaint on its face. Fed.R.Civ.P. 12(b)(6). A complaint
must be sufficient “to give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citation and quotation marks
omitted). Although a complaint does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Id. To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is “plausible on its
face.” Id. at 570. A court must treat the
complaint's factual allegations as true, “even if
doubtful in fact.” Id. at 555. But a court
need not accept as true legal conclusions set forth in a
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In ...