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Richardson v. Sauls

United States District Court, District of Columbia

June 18, 2018

EDWARD RICHARDSON, Plaintiff,
v.
BILLY J. SAULS, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         Edward 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.

         I. BACKGROUND

         A. Amended Complaint in this Action

         Because 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.

         Mr. 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. ¶¶ 4-14.

         Mr. 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. ¶ 168.

         Counts 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.

         Counts 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.

         Count 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.

         Count 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.

         Count 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.

         Count 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.

         In 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.

         Finally, 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).

         The 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.

         B. Richardson I

         Mr. 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.

         The 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.

         II. LEGAL STANDARD

         A 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 ...


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