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Conejo v. American Federation of Government Employees AFL-CIO

United States District Court, District of Columbia

March 29, 2019

JOSE CONEJO, Plaintiff,
v.
AM. FED'N OF GOV'T EMPS., AFL-CIO, Defendant.

          MEMORANDUM OPINION

          Royce C. Lamberth, United States District Judge

         Before the Court are defendant American Federation of Government Employees, AFL-CIO's ("AFGE") Motion to Dismiss [18], as amended [19], plaintiff Jose Conejo's ("Conejo") Opposition thereto [20], defendant's Reply in Support thereof [21], and plaintiffs Sur-Reply in Opposition thereto [22].

         After reviewing the pleadings and the record in its entirety, the Court shall DENY defendant's Motion to Dismiss.

         I.) BACKGROUND[1]

         Conejo is the Director of Policy and Employee Relations at .the U.S. Government Publishing Office ("GPO"), an executive agency. ECF No. 1 ¶ 5. He has been in that role since December 3, 2013. Id. As the Director of Policy and Employee Relations, Conejo is charged with, inter alia, "providing assistance to supervisors/managers in taking corrective actions for" employee misconduct. Id.

         In that role, Conejo works with the AFGE, "a labor organization representing employees of the federal government." ECF No. 19 at 3. AFGE divides its organizations "geographically by 'Districts"' and by "employment sites," as "'Locals.'" Id. Specifically, Conejo worked directly with the President of AFGE Local 2876 in exercising his duties. ECF No. 1 ¶ 6. At times relevant to the Complaint. Tina Mingo ("Mingo") was the President of AFGE Local 2876. Id.

         On or about April 20, 2017, Mingo allegedly engaged in serious misconduct, and shortly thereafter, her supervisor at AFGE, along with the Office of Labor Relations, "engaged Plaintiffs office" for assistance. Id. ¶ 7. She engaged in misconduct again on or about April 27, 2017. Id. ¶ 9. On or about May 26, 2017, Mingo "was provided with formal written notice that her supervisor . . . would be recommending a proposed removal from Federal sendee." Id. ¶ 10. Plaintiffs staff assisted AFGE's management with the issuance of such notice. Id.

         On or about April 20, 2017, Kimberly Warner ("Warner"), the AFGE Local 2876 Steward, engaged in misconduct. Id. ¶ 11. She engaged in misconduct again on or about April 27, 2017. Id. ¶ 13. On or about May 3, 2017, Warner "was provided with formal written notice that her supervisor . . . would be recommending a proposed 90-days suspension." Id. ¶ 14. "Plaintiffs staff assisted management with the issuance of the referenced notice." Id.

         On or about June 8, 2017, Nathaniel Nelson ("Nelson"), a "National Representative" of AFGE's "14th District, Washington, D.C.," see ECF No. 13-2 at 5, filed an allegedly false, substantially false, and/or slanderous unfair labor practice charge against the GPO, claiming, inter alia, that (1) Conejo "has a history of committing 5 U.S.C. § 7116(a)(5) violations by bypassing the exclusive representative and going directly to the bargaining unit member," (2) "[a] union investigation reveal[ed] that Mr. Conejo has a history of discriminating against women and preying on women for no just cause," (3) that Conejo is "100% unfit to work in any Government Agency," and (4) that "Conejo should be removed immediately. ECF No. 1. ¶ 15. Nelson further stated (5) that it was not possible for AFGE to have an amicable working relationship with the GPO "as long as Mr. Conejo remains as an employee at the GPO," (6) that, unquestionably, "Conejo will respond to this complaint by taking immediate retaliation and reprisal against some wom[e]n at the agency," and finally (7) that "[Conejo] will continue to engage in this type of activity without intervention." Id.

         On or about June 30, 2017, the GPO's Chief Human Capital Officer, Ginger T. Thomas ("Thomas") retired and, at some time prior to that date, she endorsed Conejo to assume that position upon her departure. Id. ¶ 23. Upon her departure, "because of Nelson and Mingo's allegedly defamatory conduct, Conejo was not selected to fill that position on a temporary basis. Id. Owing to the alleged irreparable harm and damage to Conejo's reputation due to AFGE's conduct, Conejo "is not likely to be considered and selected" to fill the position on a permanent basis, but-for AFGE's wrongful conduct. Id.

         On or about July 31, 2017, management issued its proposed notices of removal to Mingo and Warner for their alleged misconduct. Id. ¶ 16.

         Then, on or about August 7, 2017, Nelson authored and sent an allegedly false, substantially false, and/or slanderous e-mail to one of Conejo's employees, GPO management, another GPO employee who was being disciplined for misconduct, and AFGE District 14's National Vice President. Id. ¶ 17. Specifically, that e-mail stated that Conejo "is a known discriminator of women, and this person's entire employment application has been falsified." Id. The e-mail further purported to place "GPO on notice that this monster," referring to Conejo, "will be publically exposed for the horrible person that he really is. Now is the time to get rid ofyour [l]abor relations and employee relations supervisors." Id.

         One week later, on or about August 14, 2017, Nelson then telephoned the GPO's Chief Financial Officer, Steve Shedd ("Shedd"), and stated that Conejo "is racist and discriminatory against black women, a corrupt manager, and a monster." Id. ¶ 18.

         Two days thereafter, on or about August 16, 2017, Nelson authored and sent yet another allegedly false, substantially false, and/or slanderous e-mail to Conejo's employees, Conejo's supervisor, GPO's Acting General Counsel, other GPO employees who were being disciplined for misconduct, AFGE District 14's National Vice President, the U.S. Office of Personnel Management ("OPM"), and the U.S. Office of Special Counsel. Id. ¶ 19. That e-mail stated that (1) Conejo is "a corrupt manager and has a documented history of discriminating against black females," (2) Conejo "is totally unfit to be a federal employee," (3) Conejo "proposed the adverse action on Ms. Mingo and Ms. Warner," and (4) Conejo "was part of corrupt and discriminatory management officials that travel from agency to agency to inflict pain and discrimination against black females." Id. Further, the e-mail stated that (6) race and sex played a major role in preparing the adverse actions against Ming and Warner, (7) there "is little doubt that" such adverse actions were the product of Conejo "being mean spirited" and having a retaliatory animus, and (8) Conejo is a "predator and rouge manager." Id.

         Then, on August 23, 2017, Mingo approached Conejo and threatened him by saying, "I am going to make things up about you to hurt you." Id. ¶ 20. Mingo further claimed that she had knowingly communicated false information about Conejo to (1) GPO's Acting Chief Information Officer and (2) GPO's Chief Administrative Officer, Conejo's second-level supervisor, for the purpose of damaging Conejo's character and good standing with GPO leadership so that Conejo would not be considered for a career advancement opportunity. Id. Mingo stated that she would continue to make such false statements about Conejo's character knowingly, "with the help of AFGE National," to the GPO Director, Deputy Director, "and many others," and stated specifically that she "would stop at nothing, unless her disciplinary action disappears." Id.

         The next day, on August 24, 2017, Nelson and Mingo authored and filed an allegedly false or substantially false and/or slanderous unfair labor practice charge against the GPO. Id. ¶ 21. Mingo circulated the written document. Id. Therein, Nelson and Mingo stated, "[t]he union views Mr. Conejo as highly incompetent, vindictive, retaliatory, and totally unfit to work in any Federal Government Agency." Id. The charge continued, "[a]t some point, the agency (GPO) will have to realize that Mr. Conejo is responsible for a significant amount of unfair labor charges because of his personal retaliatory practices against labor union officials." Id. Nelson and Mingo attached Nelson's August 16, 2017 e-mail to the charge. Id.

         Conejo filed the instant action on September 1, 2017. See generally ECF No. 1. Conejo amended his complaint with leave of Court. See ECF No. 17.

         In the Amended Complaint, Conejo further alleges that on or about November 23, 2017, after Conejo filed suit, Nelson authored and sent yet another e-mail to GPO's senior agency management, including the head of the GPO. Amend. Compl. ¶ 22, ECF No. 13 [hereinafter Amend. Compl.]. Therein, Nelson stated, inter alia, that (1) Conejo "obtained private information to file a civil law suit"; (2) Conejo "was a convicted sexual predator, harasser, and was on a campaign of terror against innocent women"; (3) Conejo "has a documented history of abusing and sexually harassing women1'; (4) Conejo "continues his assault against women"; (5) Conejo "has a history of harassing women, and conducting reprisal and retaliation against them for sexual reasons"; (6) Conejo "was a predator (sexual)"; (7) Conejo "harassed some women to the point they lost control of their faculties and one woman tried to commit suicide 4 times because of Conejo; (8) Conejo "has a documented history of sexual harassment against women"; and (9) Conejo "was a sexual harasser of women and a known liar.'' Id.

         Also on November 23, 2017, "or sometime thereafter," Nelson circulated the foregoing nine statements to U.S. Representative Gregg Harper, who was a member of the Joint Committee on Printing, which oversees the GPO, id. ¶ 23; U.S. Senator Richard Shelby, who was the Chairman of the Joint Committee on Printing, id. ¶ 24; and U.S. Representative Elijah Cummings. Id. ¶25.

         Also, on or about November 23, 2017, AFGE's' authorized agent or agents filed a Complaint with the U.S. Office of Special Counsel and with GPO's Office of Inspector General, which included similar statements about Conejo. Id. ¶¶ 26-27.

         Then, on or about December 19, 2017, Nelson authored and sent another e-mail to a senior GPO management official, and copied other agency officials, an unknown individual, and Mingo. Id. ¶ 28. Therein, Nelson wrote,

I have reason to believe that you and your group have planned to impose the maximum illegal and unjustified punishment on Ms[.] Tina Mingo based on the work and recommendation by an agency convicted sexual predator. I will not give you the luxury of saying you did not know you were aiding and supporting a known convicted sexual predator.
I believe you have programmed yourself to take this action, regardless of the consequences. I urge and encourage you to stop aiding and carrying out the evil work of this convicted predator. Check with your IG and the special counsel. The decision is yours. Please stop this cruel assault on our Black women.

ECF No. 13-2 at 8. Conejo further alleges that Nelson circulated these statements to the District of Columbia Chapter of the National Association for the Advancement of Colored People (NAACP) and to the American Civil Liberties Union (ACLU). Amend. Compl. ¶ 29. Conejo brings common law tort claims sounding in defamation, slander, libel, libel per se, and invasion of privacy (false light).

         II.) DISCUSSION

         A. SUBJECT-MATTER JURISDICTION

         a. Rule 12(b)(1) Legal Standard

         AFGE moves to dismiss plaintiffs claims for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. ECF No. 18. District courts possess limited jurisdiction, and their power to adjudicate cases is derived from either Article III of the U.S. Constitution or an express statutory provision. See Steel Co. v. Citizens for Better Envmt., 523 U.S. 83, 89 (1998).

         Accordingly, the Court has the foremost obligation first to ascertain whether it is vested with jurisdiction over the subject matter of the action. See, e.g., Kontrick v. Ryan,540 U.S. 443, 455 (2004). The Court must engage in this inquiry before it turns to the Rule 12(b)(6) motion. United States ex rel. Settlemire v. Dist. of Columbia,198 F.3d 913, 920 (D.C. Cir. 1999). Absent subject-matter jurisdiction, this Court is powerless to make any further inquiries and has no power to adjudicate the substance of AFGE's Rule 12(b)(6) motion, which is necessarily a judgment on the merits. Federated Dep't Stores, Inc. v. Moitie,452 U.S. ...


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