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. ...